778 F.2d 168 (4th Cir. 1985), 84-6654, Davis v. Allsbrooks

Docket Nº:84-6654.
Citation:778 F.2d 168
Party Name:James E. DAVIS, Appellant, v. Harry L. ALLSBROOKS, Warden of the Northhampton Co. Prison; State of North Carolina, Appellees.
Case Date:November 27, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 168

778 F.2d 168 (4th Cir. 1985)

James E. DAVIS, Appellant,

v.

Harry L. ALLSBROOKS, Warden of the Northhampton Co. Prison;

State of North Carolina, Appellees.

No. 84-6654.

United States Court of Appeals, Fourth Circuit

November 27, 1985

Argued June 4, 1985.

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George Daly (Eben Rawls; Haywood, Carson & Merryman, Charlotte, N.C., on brief), for appellant.

Richard N. League, Sp. Atty. Gen. (Lacy H. Thornburg, Atty. Gen., Raleigh, N.C., on brief), for appellees.

Before PHILLIPS, CHAPMAN, and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge:

Appellant James E. Davis was convicted of first degree murder in North Carolina state court. After exhausting the state appeals process, see State v. Davis, 305 N.C. 400, 290 S.E.2d 574 (1982), he sought a writ of habeas corpus, pursuant to 28 U.S.C. Sec. 2254, in the district court for the Western District of North Carolina. Appellant alleged constitutional violations with respect to his confession to police officers, the admission of evidence, the closing argument of the prosecutor, and the trial judge's instructions. The district court found no basis for granting the writ. We affirm.

I

The body of Myrtle Wilson Wilder was found in her Asheville, North Carolina home on August 16, 1980. Though she was fully clothed, her underpants were around her knees when her body was discovered. The evidence shows that Mrs. Wilder's murder was particularly brutal. She had suffered seven or eight stab wounds to the abdominal area, some as deep as five or six inches. Her neck was broken, her face was bruised and scraped, and her wrists slashed. Further investigation revealed signs of strangulation, possibly caused by a whiplash-type injury.

Police investigation of the crime proved unproductive for several weeks, until Officer Lee Warren received information that led him to consider Davis as a possible suspect. The officer left a note at the

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house of appellant's grandmother asking appellant to come see him. Two days later, on September 4, 1980, appellant came to the station to speak to detectives.

Police gave Davis his Miranda warnings and he signed a written waiver of his rights. For approximately two hours, from 6:00 p.m. to 8:00 p.m., detectives questioned appellant concerning Mrs. Wilder's murder. Davis gave an exculputory statement, and agreed to take a polygraph test. When the equipment was set up for the test, Davis asked what the questions would be. Upon hearing the questions, he changed his mind and refused to take the test. The detectives asked appellant if he would return around 10:00 p.m., after the parties took a dinner break. He agreed, and the detectives drove him home.

When they had finished eating at approximately 10:00 p.m., the detectives radioed the station and learned that appellant had not yet arrived. Aware that the doors leading to detectives' offices were locked by that time, the detectives drove toward appellant's house to see if he was out walking. When they found Davis near his house, they offered him a ride, which he accepted by getting into the back seat. The criminal investigation was not mentioned during the ride to the station. In fact, the evidence shows that conversation focused on the latest hairstyles.

At the station, the detectives and appellant went to a 24' X 12' carpeted, air-conditioned conference room, where Davis was again advised of his Miranda rights both orally and in writing. He waived his rights in writing. Shortly after questioning resumed, appellant told the detectives that he no longer wanted to talk about the case. The detectives continued to question Davis, and placed pictures of the crime scene in front of him. Appellant did not want to look at the pictures, became visibly upset, and started to cry. At his request, he was taken to the bathroom and escorted back to the conference room by one of the detectives.

Upon appellant's return, questioning about the death of Mrs. Wilder resumed. At some point he was again escorted to the bathroom and back. Then, appellant stated that he needed to talk about what had happened, that he had trouble sleeping and could only see Mrs. Wilder's face. Appellant gave a detailed statement to the detectives confessing to the murder of Mrs. Wilder. The detectives obtained a warrant and placed Davis under arrest.

Appellant was tried and convicted in state court, receiving life imprisonment. He asserts four grounds which he believes warrant issuance of the writ: 1) that his confession was obtained in violation of his Miranda rights, 2) that the trial court's instructions to the jury impermissibly shifted the burden of persuasion to appellant, 3) that the prosecutor's closing argument denied him a fair trial, and (4) that the victim's diary was improperly admitted into evidence.

II

Appellant first asserts that his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) were violated because detectives continued to question him about Mrs. Wilder's death after he indicated that he no longer wanted to talk. We conclude, however, that appellant was not in custody at the time he was questioned. Miranda, therefore, is inapplicable.

It is undisputed that appellant was given Miranda warnings on several occasions, and that he signed at least two written waivers of his rights. It is also undisputed that he indicated that he no longer wanted to talk, and that police continued to question him despite his request. Miranda clearly prohibits such police conduct where it applies, see 384 U.S. at 473-74, 86 S.Ct. at 1627, but Miranda applies only when an individual is subject to custodial interrogation. See California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam); Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam); Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48

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L.Ed.2d 1 (1976); United States v. Stanley, 597 F.2d 866, 869 (4th Cir.1979).

The Supreme Court has articulated the standard by which "custody" is to be judged. "[T]he ultimate inquiry," the Court has noted, "is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." Beheler, 463 U.S. at 1125, 103 S.Ct. at 3520, quoting Mathiason, 429 U.S. at 495, 97 S.Ct. at 714. See also Moore v. Ballone, 658 F.2d 218, 225 (4th Cir.1981). The issue does not turn on the subjective evaluation of the situation by the defendant or the police officers; instead, the test is an objective one. "[T]he only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Berkemer v. McCarty, --- U.S. ----, ----, 104 S.Ct. 3138, 3152, 82 L.Ed.2d 317 (1984). Custody does not result merely because an individual is questioned in a "coercive environment," Mathiason, 429 U.S. at 495, 97 S.Ct. at 714, or is the "focus" of a criminal investigation. Beckwith, 425 U.S. at 349, 96 S.Ct. at 1617.

Applying these guidelines to the facts before us, and mindful of the actual holdings in cases such as Mathiason and Beheler, we find that appellant was not in "custody" for Miranda purposes. Here, as in Mathiason, appellant's initial contact with police was the result of his voluntary response to their request to speak with him. The total absence of any coercion occasioned by the police note is made evident by the fact that Davis felt free to wait two days before presenting himself at the station.

Conditions at the station were as informal as one could expect. Both sessions took place in large, carpeted, air-conditioned rooms, and appellant was given a soft drink. Though the first session lasted approximately two hours, it was not a marathon session designed to force a confession. The detectives took a dinner break at a reasonable hour, gave appellant a ride home, and agreed to meet later at a mutually convenient time. Appellant apparently understood that he was free to reject police requests for information; after initially agreeing to take a polygraph, he changed his mind and refused. Unless we are to conclude that custody results "simply because the questioning takes place in the station house," Mathiason, 429 U.S. at 495, 97 S.Ct. at 714, we see nothing on these facts to warrant a finding that appellant was in custody.

Nor do we find it significant that appellant was given a ride to the police station after the break in questioning. The detectives drove to appellant's neighborhood to see if he was out walking only after they discovered that he had not arrived at the station house by the agreed time. Appellant was offered a ride, not ordered into the car, and he accepted by voluntarily getting into the car. The investigation was not discussed during the ride. In light of the detective's previous actions--such as stopping questioning for dinner and giving appellant a ride home--we find that the ride back to the police station was insufficient to establish custody and coercion.

A similar conclusion obtains with respect to the fact that police twice escorted appellant to the bathroom and back. The first occasion may be explained by the fact that appellant was unfamiliar with the station house and may not have known his way to the bathroom or back to the conference room. At the time of the second trip, appellant was upset and the detectives' unwillingness to leave him alone at that time was understandable. Whatever level of coercion may have been inherent in this police escort is insufficient for us to conclude that appellant was in custody, given the other circumstances surrounding his encounter with the police.

Appellant also asserts that the detectives' failure to tell him he was free to go supports the conclusion that he was in...

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