940 F.2d 411 (9th Cir. 1991), 88-2443, Collazo v. Estelle

Docket Nº:88-2443.
Citation:940 F.2d 411
Party Name:Dennis Rosa COLLAZO, Petitioner-Appellant, v. Wayne ESTELLE, Warden, California Mens Colony, Respondent-Appellee.
Case Date:July 18, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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940 F.2d 411 (9th Cir. 1991)

Dennis Rosa COLLAZO, Petitioner-Appellant,

v.

Wayne ESTELLE, Warden, California Mens Colony, Respondent-Appellee.

No. 88-2443.

Argued En Banc and

United States Court of Appeals, Ninth Circuit

July 18, 1991

Submitted Oct. 9, 1990.

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[Copyrighted Material Omitted]

Page 413

William D. Farber, San Rafael, Cal., for petitioner-appellant.

Aileen Bunney, Supervising Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before GOODWIN, HUG, FLETCHER, POOLE, D.W. NELSON, REINHARDT, BEEZER, KOZINSKI, NOONAN, O'SCANNLAIN and TROTT, Circuit Judges.

TROTT, Circuit Judge:

Appellant Collazo was arrested for murder and advised of his Miranda rights. He declined to waive them, asking instead to talk to a lawyer. The police responded to his request by telling Collazo it "might be worse" for him if he talked to an attorney, and that it was in his interest to talk to them without one. Three hours later, he "changed his mind," was readvised of his rights, and talked to the police. What he told them was used to convict him and send him to prison. We are called on in this appeal to examine the conduct of the police leading up to Collazo's confession, and to decide in light of that conduct whether Collazo was denied due process when his confession was introduced in evidence. We conclude that Collazo's confession was involuntary, and that its use to convict him violated his Constitutional rights. We reverse the district court.

I

On September 27, 1982, Dennis Collazo, an occasional informant and undercover operative for the Drug Enforcement Administration, was arrested for the murder of Douglas Metzger. Metzger often sold cocaine to Collazo's niece, who owed Metzger a considerable debt arising from her purchases. When Collazo's niece expressed a desire to free herself from her drug debt, Collazo and Tony Young, one of Collazo's confederates, attempted an armed robbery of Metzger. The robbery turned into a brawl, and Young shot Metzger. After the murder, Collazo went to Mexico (apparently on DEA business), and was arrested on his return. 1

After the arrest, Collazo was escorted to an interview room in the San Jose Police Station where Officer Rolen fully advised

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him of his Miranda rights. In response, he asked to talk to his wife. The police denied this request. After some discussion about where he was on the day of the murder and another rejected request to talk to his wife, Collazo requested to talk to a lawyer. Instead of respecting his request, however, Officer Destro (Officer Rolen's partner) attempted to pressure him into dispensing with counsel and talking to them about the homicide. 2 A transcript of the conversation follows:

Collazo: Oh, you know, ah, can I, you know, talk to a lawyer?

Destro: It's up to you. This is your last chance to talk to us, though.

Collazo: I understand that.

Destro: Once you get a lawyer, he's gonna say forget it. You know, don't talk to the police. Then it might be worse for you.

Collazo: Pardon me?

Destro: Then it might be worse for you.

Collazo: Why?

Destro: Because, ah, you know, there's other people involved in this thing, and we would like to get everybody. If you don't want to talk about it, uh--

Rolen: Well, he's asked for a lawyer, so why don't we, I guess we'll end our interview right there.

Collazo: If, ah, if ah, this gonna be stupid for you, you know, for me it means a lot, you know.

Destro: If you're arrested for murder, it does mean a lot.

The police then departed, leaving Collazo in the interview room to ponder Officer Destro's inappropriate admonition and to consider whether he could afford to exercise his Constitutional rights.

Collazo was then permitted to call and to see his wife, a legal secretary. She came to the police station and had a lengthy discussion with him, the substance of which is unknown. Some three hours after the officers' departure, Collazo contacted a sergeant and asked, "Where are the investigators?" The sergeant correctly construed this as a request to talk to them, and they were so notified and returned to the station. Collazo was again advised of his Miranda rights, and indicated he had changed his mind and was now willing to talk. He then essentially confessed to his nonshooting role in the crimes for which he had been charged and arrested.

In state court, Collazo unsuccessfully attempted to suppress his incriminating statements on the ground that they were the product of impermissible coercion and thus a violation of his Constitutional rights. He argued that the formal waiver of his Miranda rights was nothing more than the involuntary product of previous threats. At trial, his taped statement, the truthfulness of which he partially repudiated, was admitted in evidence over his objection. Collazo was convicted by a jury of felony murder, burglary, and conspiracy to commit robbery, burglary, and theft. For these crimes he was sentenced to state prison for a term of 26 years to life.

Collazo pursued his case on appeal through the state courts in California, attacking his confession as the direct product of a violation of his federal Constitutional rights. He was not successful and after exhausting all state remedies, he filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of California. His petition was denied, but a certificate of probable cause was issued.

On appeal, Collazo argues (1) his confession was involuntary, (2) the alleged waiver he articulated before confessing was nothing more than the unlawful product of coercive tactics, and (3) the use of his statement against him was not harmless error.

II

We confront a state court record containing factual findings on the relevant issues. California argues that these findings, insofar as they pertain to the validity of the alleged waiver, are entitled to the presumption

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of correctness mandated by 28 U.S.C. Sec. 2254(d). 3 Therefore, we must first determine the appropriate standard of review that controls our analysis.

We review de novo the voluntariness of Collazo's confession. Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985), calls on us to determine "whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution ...," and to do so by subjecting the issue to "plenary federal review." A federal court reviewing the admissibility of a confession is not bound by a state court finding of voluntariness and has a "duty to make an independent evaluation of the record." Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978). More specifically, we are not bound by state court findings that the conduct of the interrogating officers was not coercive. As Chief Judge Wallace recently stated in Derrick v. Peterson, 924 F.2d 813, 818 (9th Cir.1990), "we are obligated to conduct an independent review of the 'constitutional acceptability' of the ... interrogation...." We take a fresh look at whether the police used "objectively unacceptable methods to coerce [the defendant] into waiving his right to silence...." United States v. Wolf, 813 F.2d 970, 976 n. 16 (9th Cir.1987). In this regard, "the admissibility of a confession turns as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant's will was in fact overborne." Miller, 474 U.S. at 116, 106 S.Ct. at 452 (emphasis in original).

Historical or subsidiary facts are treated differently, even though they may be dispositive of a Constitutional claim. Id. at 113, 106 S.Ct. at 451. Such findings as whether the police in fact made the alleged threats are reviewed for clear error if made by a district court, and are presumed correct under section 2254(d) if made by a state court. "To be sure, subsidiary factual questions, such as ... whether in fact the police engaged in the intimidation tactics alleged by the defendant ... are entitled to the Sec. 2254(d) presumption [of correctness]." Id. at 112, 106 S.Ct. at 450 (citations omitted).

The standard of review does not change when the inquiry shifts from the voluntariness of the confession to the voluntariness of an asserted Miranda waiver. 4 Colorado v. Spring, 479 U.S. 564, 573, 107 S.Ct. 851, 857, 93 L.Ed.2d 954 (1987), makes it clear that "the inquiry whether a waiver is coerced 'has two distinct dimensions' ":

"First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the 'totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived."

(quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986) (emphasis added)).

We review the voluntariness prong de novo:

We agree with the Third Circuit and reaffirm Grooms' [Grooms v. Keeney, 826 F.2d 883, 887 (9th Cir.1987) ] adoption of a plenary standard of review because we find that the voluntariness of a waiver is a mixed question of law and

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fact that requires de novo review. A mixed question of law and fact warrants de novo review when "the...

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