547 F.3d 297 (6th Cir. 2008), 03-4293, Davie v. Mitchell

Docket Nº:03-4293.
Citation:547 F.3d 297
Party Name:Roderick DAVIE, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
Case Date:November 12, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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547 F.3d 297 (6th Cir. 2008)

Roderick DAVIE, Petitioner-Appellant,

v.

Betty MITCHELL, Warden, Respondent-Appellee.

No. 03-4293.

United States Court of Appeals, Sixth Circuit.

November 12, 2008

         Argued: July 18, 2007.

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         ARGUED:

         David C. Stebbins, Federal Public Defender's Office, Columbus, Ohio, Kathleen A. McGarry, McGarry Law Office, Glorieta, New Mexico, for Appellant.

         Stephen E. Maher, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

          ON BRIEF:

         David C. Stebbins, Federal Public Defender's Office, Columbus, Ohio, Kathleen A. McGarry, McGarry Law Office, Glorieta, New Mexico, for Appellant.

         Stephen E. Maher, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

          Before: MERRITT, COLE, and ROGERS, Circuit Judges.

          ROGERS, J., delivered the judgment of the court and an opinion. COLE, J. (pp. 318-24), delivered a separate concurring opinion. MERRITT, J. (pp. 324-35), delivered a separate dissenting opinion.

         OPINION

          ROGERS, Circuit Judge.

         The Ohio courts have upheld the sentence of defendant Roderick Davie to death for the brutal and gruesome murder of two victims. He was also convicted on an attempt to kill a third. On a subsequent petition for a federal writ of habeas corpus, the district court below rejected contentions that defendant's Miranda rights had been violated, that his penalty-phase jury instructions had been constitutionally deficient, and that prosecutorial conduct had denied him due process. These determinations were correct, notwithstanding Davie's arguments on appeal.

          With respect to the Miranda claim in particular, the substantial deference that the law requires us to give to the state court's application of United States constitutional law in habeas cases compels us to uphold the Ohio courts' denial of Davie's Miranda claim. Indeed, even fresh application of Supreme Court precedent shows that Davie's Miranda rights were not violated by the police actions in this case, which included four instances of questioning

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-each following a Miranda warning-over a six-hour period.

         I.

         On June 27, 1991, Davie killed John Coleman and Tracey Jefferys, and tried to kill John Everett. In a taped confession, Davie admitted that he “ flipped out" the morning of the crime and “ went down to VCA and shot ‘ em up." He described how he entered the building, made his three victims lie on the floor, and shot them. He described how he beat one victim with a chair when he ran out of bullets, and attempted to run down one victim with a truck. He also described his activities after he committed the shootings.

         At trial, Donna Smith, an eye witness, testified that, as she approached the Veterinary Companies of America (“ VCA" ) warehouse on the morning of the shootings, she noticed a bleeding man stumble across the parking lot and collapse on a sidewalk. JA 901-05. Smith then noticed another man come out of the building and run around to the driver's side of a truck in the dock area. Thereafter, Smith testified that the truck came “ flying out" of the parking lot across both lanes of the street in an attempt to hit the injured man. The injured man was able to shield himself from the truck by falling underneath a bridge, and the truck rammed into the bridge. Smith testified that the man in the truck left the truck and jumped over the side of the bridge.

         John Everett, one of Davie's victims and the man that Smith witnessed stumble across the parking lot, testified to the following events. JA 906-47. On the morning of the shootings, Everett was in the VCA lunch room. Davie, accompanied by a crying Tracey Jefferys (another VCA employee), came up from behind Everett holding a gun. Davie ordered Everett out of the lunch room and, once in the warehouse area, ordered Everett and Jefferys to “ lay face down." Davie then ordered John Coleman, who was loading his truck at the loading dock, to join Everett and Jefferys. After Everett, Jefferys, and Coleman had complied with Davie's commands, Davie began shooting. Everett testified that after numerous shots were fired, Jefferys got up and ran away. Davie brought Jefferys back, and Everett heard Davie remark to Coleman “ You ain't dead yet, huh, brother?" and fire another shot. Everett testified that Davie then took Everett's wallet and told Jefferys that she was lucky that he was out of bullets. At that point, Jefferys again attempted to flee, and Davie followed. Everett heard Jefferys scream for three or four minutes and, eventually, the screaming stopped.

         Everett escaped the warehouse and made his way out of the building and to the street. Thereafter, Everett noticed Davie revving the engine of a truck in the parking lot. Davie attempted to use the truck to run Everett down, but Everett escaped by jumping under a bridge. Everett heard the truck crash into the bridge and, shortly thereafter, Davie arrived under the bridge. At that time, Davie began beating Everett with a stick on the left side of Everett's head, and attempted to gouge Everett's eyes out with the stick. Everett testified that Davie had the look of “ a man on a mission and he was definitely going to kill me." At some point, Davie stopped beating Everett, looked up over the bridge, and left the area. Everett was treated at the hospital for, among other things, three gunshot wounds-one to the head, one to the shoulder, and one to the arm.

          There is no need to summarize the remainder of the trial testimony. It is sufficient to say that the testimony established overwhelmingly that Davie committed a bloody and gruesome series of crimes on

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the morning of June 27, 1991. Testimony established that Tracey Jefferys died in VCA's lunch room due to blunt force trauma. A metal folding chair was found next to her body. Coleman died in the warehouse as a result of five bullet wounds-two of which were located in the back of his head.

         The circumstances of Davie's confession, detailed more fully in the concurrence, are as follows. At approximately 8:30 a.m., Davie was arrested, read his Miranda rights, and transported to the police station. At approximately 9:05 a.m. at the police station, Detective Hill read Davie his Miranda rights with Lieutenant Carl Blevins present. Davie initialed the rights form but refused to sign the waiver. At that point, the officers made no attempt to interrogate Davie. At approximately 9:59 a.m., Captain Downs and Blevins entered the interrogation room and again advised Davie of his Miranda rights. Davie initially made some comments, he ultimately declined to speak further with the officers, and the interview ceased. At approximately 12:15 p.m., authorities again questioned Davie. Davie provided some information to police, including the fact that he had his gun with him that morning, but he did not confess to the crime. At 12:35 p.m., Davie indicated that he had nothing more to say and the interview ceased. At approximately 2:00 p.m., Davie indicated that he wanted to speak with Detective Vingle. After Vingle advised him of his Miranda rights, Davie confessed. See 80 Ohio St.3d 311, 686 N.E.2d 245, 256 (Ohio 1997). At no time during the relevant events did Davie ask for a lawyer.1

         II.

         A.

          Davie claims that the state trial court unconstitutionally admitted his confession into evidence. The deference that we owe to state court determinations regarding constitutional law on federal habeas requires that we uphold the Ohio Supreme Court's rejection of Davie's Miranda claim. The law by now is clear that under AEDPA, “ an unreasonable application of federal law is different from an incorrect application of federal law." See Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (emphasis in original). Instead of asking whether the state court's application was erroneous, “ a federal habeas court making the ‘ unreasonable application’ inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S.Ct. 1495. Our task in this case is to evaluate the Ohio Supreme Court's application of U.S. Supreme Court precedents for reasonableness, not to undertake an independent evaluation.

         After detailing the events leading to Davie's statements, the Ohio Supreme Court reasoned:

Contrary to Davie's arguments, he did not unequivocally assert his constitutional rights. Instead, he waived his right to remain silent during both interviews

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with Vingle and Sines, despite his failure to initial the waiver-of-rights portion of the form. This situation is similar to that in State v. Scott (1980), 61 Ohio St.2d 155, 15 O.O.3d 182, 400 N.E.2d 375, which followed the decision in North Carolina v. Butler (1979), 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286. In Butler, the Supreme Court noted that “ in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated." Id. at 373, 99 S.Ct. 1755. In Scott, the accused acknowledged that he understood his Miranda rights, but refused to sign a waiver form. Nevertheless, he agreed to answer questions and never requested counsel. The Scott court upheld the admissibility of the accused's statements and held, “ [T]he question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in Miranda * * *." Scott at paragraph one of the syllabus. The similar facts of this case demonstrate that Davie waived his Miranda rights even though he failed to initial the waiver part of the form.

When Davie indicated in his...

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