Simpson v. Jackson, 08-3224.

• Citation: 615 F.3d 421
• Decision Date: 13 July 2010
• Docket Number: No. 08-3224.,08-3224.
• Parties: Donovan E. SIMPSON, Petitioner-Appellant, v. Wanza JACKSON, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

615 F.3d 421

Donovan E. SIMPSON, Petitioner-Appellant,

v.Wanza JACKSON, Warden, Respondent-Appellee.

No. 08-3224.

United States Court of Appeals,Sixth Circuit.

Argued: April 21, 2010.

Decided and Filed: July 13, 2010.

COPYRIGHT MATERIAL OMITTED.

ARGUED: Brian Fletcher, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., for Appellant. Gene D. Park, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Brian Fletcher, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., for Appellant. Gene D. Park, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: MARTIN, SUHRHEINRICH, and WHITE, Circuit Judges.

MARTIN, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. WHITE, J. (pp. 445-48), delivered a separate opinion dissenting in part and concurring in part.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Petitioner Donovan Simpson, an Ohio inmate, seeks habeas relief from his convictions for aggravated murder, murder, five counts of attempted murder, aggravated arson, and five counts of felonious assault, all arising from a fatal arson. An Ohio jury convicted him under an aiding and abetting theory for assisting another individual in preparing a “Molotov cocktail” and helping the individual flee after throwing the bomb at a house, resulting in the death of a child sleeping inside. Simpson claims that four of his statements-made on April 24, April 27, June 16, and June 20, 2000-were erroneously admitted into evidence in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny, as well as in violation of the Fifth Amendment. For the reasons set forth below, we find that the June 16th statement was properly admitted into evidence but that the state court's admission of the statements made on April 24th, April 27th, and June 20th was contrary to and an unreasonable application of Supreme Court precedent at the time the conviction became final. These errors were harmless as to Simpson's convictions for aggravated arson and felonious assault, so we deny relief as to those convictions. However, the errors were not harmless as to the convictions for aggravated murder, murder, and attempted murder, so we grant Simpson a writ of habeas corpus as to those convictions.

I.

A. Factual Background

The last state court decision on the merits, see Garcia v. Andrews, 488 F.3d 370, 374 (6th Cir.2007), is that of the Court of Appeals of Ohio on Simpson's direct appeal. That court set forth the facts as follows:

In the early morning hours of October 27, 1997, a fire broke out at 151 South Wheatland Avenue in Columbus, Ohio. At the time, Aleta Bell and three of her four children, Shenequa, age five, Elijah, age three, and Myesha, five-months old, were asleep in the house. Also sleeping in the house were two men, Terrance Hall and Gary Williams, Myesha's father. Hall was awakened early that morning by a loud crash of glass. He found the house engulfed in flames. After running out of the house, Hall was able to wake Aleta Bell and Williams, who were sleeping with Myesha in the same room. They were able to get out of the house. Unfortunately, they were not able to reach the two children who were sleeping in a back bedroom. Members of the Columbus Fire Department (“CFD”) arrived on the scene and were able to find the two children and take them directly to Children's Hospital. However, as a result of the injuries sustained in the fire, Shenequa Bell died days later. Elijah Bell survived, but suffered serious injuries.

By indictment filed August 24, 2000, appellant was charged with thirteen counts relating to the fire at 151 South Wheatland Avenue. Appellant was charged with two counts of aggravated murder for the death of Shenequa Bell, in violation of R.C. 2903.01. Both counts contained death penalty specifications pursuant to R.C. 2929.04(A). Appellant was also charged with five counts of attempted murder of the five other people in the house, in violation of R.C. 2923.02 and 2903.02; one count of aggravated arson, in violation of R.C. 2909.02; and five counts of felonious assault, in violation of R.C. 2903.11. Appellant entered a not

guilty plea to all of the charges and proceeded to a jury trial.

Before his trial, appellant sought to suppress four verbal statements he made to police officers prior to being indicted. Two of these statements, one on April 24 and another on April 27, 2000, were made to officers while appellant was incarcerated in the Licking Southeastern Correctional Institution for an unrelated crime. Both of these statements were recorded. No Miranda warnings were given to appellant before he made these statements. The other two statements, one on June 16 and one on June 20, 2000, were made at Columbus Police Headquarters. Both of these statements (which were essentially confessions) were videotaped. Appellant was read his Miranda rights before these statements were made and he signed a form indicating he understood and waived those rights. After an evidentiary hearing, the trial court denied his motion thereby permitting the state to introduce these statements into evidence at trial.

The following key testimony was presented during the state's case.

....

Detective Edward Kallay, Jr., a homicide detective who was the primary investigator in this matter for the Columbus Police Department (“CPD”), testified that, in January 2000, he had a conversation with a man named Adiyat Diggs. Based upon that conversation, Kallay believed that appellant might have information about a suspect who the police thought could have been involved in starting this fire. On April 24, 2000, Detective Kallay and Federal Special Agent Ozbolt spoke with appellant at the Southeastern Correctional Institution in Licking County where appellant was incarcerated. Their conversation was recorded.

Detective Kallay testified that appellant told him that he had picked up a man named Daryl “Pumpkin” Kelly the day before the fire and took him to a bar to meet a woman named Leah.¹ Appellant waited outside while Daryl Kelly went into the bar. When Kelly and Leah came out, appellant heard Leah tell Kelly to “take care of this for me.” Appellant told Detective Kallay that he got a call from an excited Daryl Kelly the next morning who said he needed another ride. When appellant picked Kelly up, he said that Kelly smelled like gasoline. Daryl “Pumpkin” Kelly was a suspect even before appellant provided this information.

Three days later, on April 27, 2000, Detective Kallay and Special Agent Ozbolt went to the Southeastern Correctional Institution to talk with appellant again. In a recorded conversation, appellant again implicated Leah and Kelly in the fire at 151 South Wheatland Avenue. Following this conversation, the officers obtained appellant's release on probation so that he would cooperate with them in their investigation. However, appellant failed to cooperate, leading the officers to believe that appellant had more to do with the fire than he was admitting. Due to appellant's failure to cooperate with the investigation and failure to

abide by the terms of his probation, Detective Kallay arrested appellant on June 16, 2000.

After he was arrested, appellant was taken to CPD headquarters and interrogated by Detective Kallay and Special Agent Ozbolt. The interrogation was videotaped. It is undisputed that, prior to being questioned, appellant was read his Miranda rights. During questioning, appellant admitted his involvement in starting the fire. He said that he met Leah and Kelly the day before the fire when Leah asked appellant to take Kelly somewhere that night. Later that evening, Kelly and appellant took two empty bottles of alcohol and filled them with gasoline. They brought the bottles to Leah who showed them how to make a Molotov cocktail. Appellant and Kelly then went to the area of 151 South Wheatland Avenue and drove into an alley. After smoking some crack, Kelly got out of the car with the two bottles and, a few seconds later, appellant heard glass break and then saw Kelly running back towards the car without the bottles. The two sped away to a crack house, where they paged Leah. She arrived and paid them both with crack cocaine.

Detective Kallay further testified that, following these admissions, he made arrangements to have appellant take a polygraph test. On June 20, 2000, appellant was brought again to the CPD to take the test. It is undisputed that appellant was read his Miranda rights again. However, Detective Kallay testified that appellant was uncooperative so the test could not be performed. Appellant's lack of cooperation was confirmed by the testimony of Randy Walker, who had been hired to administer the test. Nevertheless, while in the room waiting to take the test, appellant made more admissions regarding his involvement in the fire. Again, this interrogation was videotaped.

Appellant's recorded statements of April 24th, April 27th and his videotaped confessions of June 16th and June 20th were played for the jury over appellant's objections.

The state then called Stanley Bowen, a Deputy Sheriff for Licking County. Deputy Bowen was employed as a supervisor at the jail in which appellant was incarcerated in April 2000. Deputy Bowen testified that he overheard appellant ask “why didn't they charge the bitch too. It was her idea to start the fire.” In addition, an inmate, who was in a cell next to appellant, testified that appellant told him all about the fire. He said that appellant told him there were three people involved, and that they used Molotov cocktails to firebomb the house.

....

After deliberating, the jury returned verdicts finding appellant guilty of all five counts of attempted murder and felonious assault, guilty of one count of aggravated arson, guilty of the lesser included offense of murder of Shenequa Bell, and guilty of the aggravated felony-murder of Shenequa Bell, also finding

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