Anderson v. Terhune

• Decision Date: 15 February 2008
• Docket Number: No. 04-17237.,04-17237.
• Parties: Jerome Alvin ANDERSON, Petitioner-Appellant, v. C.A. TERHUNE, Director, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

516 F.3d 781

Jerome Alvin ANDERSON, Petitioner-Appellant, v. C.A. TERHUNE, Director, Respondent-Appellee.

No. 04-17237.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 9, 2007.

Filed February 15, 2008.

Charles M. Bonneau (argued), Sacramento, California, for the petitioner-appellant.

Rachelle A. Newcomb, Deputy Attorney General (argued) and Edmund G. Brown, Jr., Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Michael P. Farrell, Senior Assistant Attorney General; Stephen G. Herndon, Supervising Deputy Attorney General; Brian R. Means, Deputy Attorney General; Sacramento, California, for the respondent-appellee.

Peter C. Pfaffenroth (argued), Jeffrey T. Green, Harold L. Rogers, Sidley Austin LLP, Washington, DC; Charles D. Weisselberg, University' of California School of Law (Boalt Hall), Berkeley, California; David M. Porter, Sacramento, California; Sheryl Gordon McCloud, Seattle, Washington, for amicus curiae National Association of Criminal Defense Lawyers.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, District Judge, Presiding. D.C. No. CV-00-02494-WBS.

Before: MARY M. SCHROEDER, STEPHEN REINHARDT, SIDNEY R. THOMAS, BARRY G. SILVERMAN, M. MARGARET McKEOWN, KIM McLANE WARDLAW, W. FLETCHER, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, CONSUELO M. CALLAHAN, CARLOS T. BEA, and SANDRA S. IKUTA, Circuit Judges.

McKEOWN, Circuit Judge:

It is likely that few Americans can profess fluency in the Bill of Rights, but the Fifth Amendment is surely an exception. From television shows like "Law & Order" to movies such as "Guys and Dolls," we are steeped in the culture that knows a person in custody has "the right to remain silent." Miranda is practically a household word. And surely, when a criminal defendant says, "I plead the Fifth," it doesn't take a trained linguist, a Ph.D, or a lawyer to know what he means. Indeed, as early as 1955, the Supreme Court recognized that "in popular parlance and even in legal literature, the term `Fifth Amendment' in the context of our time is commonly regarded as being synonymous with the privilege against self-incrimination." Quinn v. United States, 349 U.S. 155, 163, 75 S.Ct. 668, 99 L.E d. 964 (1955); accord In re Johnny V., 85 Cal.App.3d 120, 149 Cal. Rptr. 180, 184, 188 (1978) (holding that the statement "I'll take the fifth" was an assertion of the Fifth Amendment privilege). More recently, the Court highlighted that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." Dickerson v. United States, 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).

We granted rehearing en banc¹ in this appeal from the district court's denial of Jerome Alvin Anderson's petition for writ of habeas corpus. Anderson challenges his conviction of special circumstances murder on the grounds that he was denied his constitutional right to remain silent and that admission of his involuntary confession into evidence violated his right to due process. Specifically, Anderson claims that he invoked his Fifth Amendment right to terminate his police interrogation and that the police officer's`continued questioning violated that right.

Anderson twice attempted to stop police questioning, stating "I don't even wanna talk about this no more," and "Uh! I'm through with this." After questioning continued, Anderson stated unequivocally, "I plead the Fifth." Instead of honoring this unambiguous invocation of the Fifth Amendment, the officer queried, "Plead the Fifth. What's that?" and then continued the questioning, ultimately obtaining a confession. It is rare for the courts to see such a pristine invocation of the Fifth Amendment and extraordinary to see such flagrant disregard of the right to remain silent.

The state court held that Anderson's statement, "I plead the Fifth," was ambiguous and that the officer asked a legitimate clarifying question. Under even the narrowest construction of the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d) ("AEDPA"), the state court erred in failing to recognize this constitutional violation. The continued questioning violated the Supreme Court's bright-line rule established in Miranda. Once a person invokes the right to remain silent, all questioning must cease:

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.

Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); see also Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (explaining that once a defendant has invoked his right to remain silent, that right must be "scrupulously honored") (quoting Miranda, 384 U.S. at 479, 86 S.Ct. 1602).

An examination of the interrogation transcript² reveals that the state court's conclusion that Anderson's invocation was ambiguous was an unreasonable application of Miranda and based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1), (2). Only one reasonable conclusion can be gleaned from his statements, especially his last declaration, "I plead the Fifth": Anderson invoked his right to remain silent and wanted to end the interrogation. Construing the officer's statement, "Plead the Fifth? What's that?", as asking what Anderson meant is also an unreasonable determination of the facts. Id. § 2254(d)(2). These errors were not harmless and, accordingly, we reverse the judgment of the district court and remand with directions to grant the writ of habeas corpus.

I. BACKGROUND

Anderson and the victim, Robert Clark, were friends. On the morning of July 9, 1997, a mutual acquaintance, Patricia Kuykendall, discovered that her car had been stolen. Anderson and Kuykendall suspected that Clark was involved and later that morning confronted him at Kuykendall's house. Kuykendall began yelling at Clark, but Anderson remained calm. When Clark denied that he stole the car, he appeared edgy and nervous. As Kuykendall left the room to call the police, Clark left the house. Anderson and Kuykendall's roommate, Abe Santos, left ten minutes later, stating they were going to follow Clark.

Clark's body was discovered by the side of a road later that afternoon. He had been shot in the head four times. Investigators found a methamphetamine pipe lying between Clark's arm and body. A cigarette lighter was resting on Clark's stomach under his right hand. Pieces of a partially-eaten hamburger and a fresh cigarette butt were also near the body, as well as spent .22 caliber shell casings.

The police asked Anderson to come in for an interview two days later, July 11. During the interview, Anderson explained that on the day of the murder he saw Clark at Kuykendall's apartment in the morning, but that he and Santos left to buy some hamburgers, after which they went to Santos's father's house and to a car wash.

The police took Anderson into custody for a parole violation on July 12. Four officers interviewed Anderson for approximately three and a half hours. Despite clear and repeated invocations of his right to remain silent, the officer continued to question Anderson about the murder:

Officer: You act like you're cryin' like a baby, an' you can't cry for someone that was a no good . . . an' you killed him for a good reason.

Anderson: No, way! No, way. I — You know what, I don't even wanna talk about this no more. We can talk about it later or whatever. I don't want to talk about this no more. That's wrong. That's wrong.

Officer: Right now, you show your remorse.

Immediately after this exchange, the officer continued to interrogate Anderson regarding his drug use on the day of the murder, including whether Anderson had used pipes. This questioning is significant because the murder victim was found with a pipe next to him. The entire conversation was about the murder. In response to this questioning, Anderson unambiguously indicated that he wanted to end the interrogation by stating that he was "through with this," wanted to "be taken into custody" and "I plead the Fifth." The relevant portion of the transcript is so extraordinary that it bears repeating.

Anderson: I have nothin' to worry about, nothin' to hide. That's why I show no remorse. Nothin' to worry about, nothin' to hide. He was my friend, an' there's no way I would do it. No, way I would do it.

Officer: Were you high that day?

Anderson: No, sir. I — probably was later on. Yes.

Officer: Did you have any dope"with you that ... that day?

Anderson: No, sir.

Officer: No, dope at all? What do you smoke with?

Anderson: I smoke with my ... my fingers.

Officer: When you smoke your dope what do you do with that? How do you smoke that?

Anderson: You smoke it with pipes and stuff like that.

Officer: Okay. What kind of pipes?

Anderson: Lines.

Officer: What kind of pipes?

Anderson: N'ah ... I would — I —

Officer: Well, what kind of pipes?

Anderson: Uh! I'm through with this. I'm through. I wanna be taken into custody, with my parole ...

Officer: Well, you already are. I wanna know what kinda pipes you have?

Anderson: I plead the [F]ifth.

Officer: Plead the [F]ifth. What's that?

Anderson: No, you guys are wrong. You guys are wrong. You guys have — I've tried to tell you everything I know. As far as I know, you guys are lying, uh, making things up, extenuating and that's not right. It's not right.

Officer: We're not makin' anything up.

Anderson: Sir, sure you are.

Officer: What are we makin' up?

Anderson: You're tellin' me that I didn't have tears in my eyes.

Officer: Yeah.

Anderson: You're tellin'...