Arnold v. Runnels

• Decision Date: 24 August 2005
• Docket Number: No. 04-15194.,04-15194.
• Citation: 421 F.3d 859
• Parties: Grady ARNOLD, Petitioner-Appellant, v. D.L. RUNNELS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

421 F.3d 859

Grady ARNOLD, Petitioner-Appellant, v. D.L. RUNNELS, Respondent-Appellee.

No. 04-15194.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 13, 2005.

Filed August 24, 2005.

COPYRIGHT MATERIAL OMITTED

Amitai Schwartz, Esq., Elizabeth Letcher, Esq., Emeryville, CA, for the appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Peggy S. Ruffra, Supervising Deputy Attorney General, Morris Beatus, Deputy Attorney General, San Francisco, CA, for the appellee.

Appeal from the United States District Court for the Northern District of California; Jeremy Fogel, District Judge, Presiding. D.C. No. CV-01-20810-JF.

Before MYRON H. BRIGHT,^* TASHIMA, and CALLAHAN, Circuit Judges.

BRIGHT, Circuit Judge.

Grady Arnold, at age thirty-six, was sentenced by a California state court to serve a forty-one-year to life imprisonment sentence as a third-strike offender, upon being convicted of attempted armed robbery, possession of a firearm by a convicted felon, and shooting at an occupied building in violation of the California Penal Code. His conviction was affirmed by the state court of appeal. Following denial of review by the Supreme Court of California, Arnold sought relief on several grounds pro se through a writ of habeas corpus from the federal district court, under 28 U.S.C. § 2254. The court denied the writ.¹

We granted a certificate of appealability as to the sole question of whether the trial court violated Arnold's Fifth Amendment rights by admitting a tape recording of certain utterances Arnold made during an interrogation, even though Arnold had said he did not want to talk on tape and responded to all substantive questions on tape by saying "no comment."

Two critical facts control the outcome of this case: Arnold unequivocally invoked his right not to speak on tape by saying he did not want to talk on tape; further, he never thereafter waived that right. Nonetheless, the interrogator turned the tape recorder on and induced Arnold to respond to questions. The trial court allowed Arnold's "no comment" utterances to be used against him. The Miranda² rule requires a remand for a new trial. Thus, we reverse the decision of the district court and direct the issuance of the writ of habeas corpus.

I.

We review de novo the district court's decision to grant or deny a habeas petition under 28 U.S.C. § 2254. Leavitt v. Arave, 371 F.3d 663, 668 (9th Cir.2004). Under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d), a petitioner must demonstrate that the state court's decision on the merits was contrary to, or involved an unreasonable application of, clearly established federal law under United States Supreme Court precedent, or that the decision was based on an unreasonable determination of the facts. Lockyer v. Andrade, 538 U.S. 63, 70-73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); Ramirez v. Castro, 365 F.3d 755, 762 (9th Cir.2004). State court findings of fact are presumed to be correct unless the petitioner rebuts the presumption with clear and convincing evidence. Davis v. Woodford, 333 F.3d 982, 991 (9th Cir.2003).

If the state courts thus unreasonably applied the law or determined the facts, we must consider whether the error was harmless, under the Kotteakos³ harmless error standard. Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

II.

Arnold argues that the state trial court violated his Fifth Amendment rights by admitting into evidence a tape recording of a portion of an interrogation. Police officers suspected Arnold of participating in an attempted armed robbery that occurred in September 1995. In July 1996 two officers interrogated Arnold, who was in prison on an unrelated matter.

At the beginning of the interrogation, the primary interrogator advised Arnold of his rights under Miranda. Arnold orally waived those rights and filled out and signed a "waiver card." That portion of the interrogation was not tape recorded.

Approximately thirty minutes into the interrogation, the primary interrogator indicated that he was going to tape record part of the interrogation. Arnold said that he did not want to talk on tape. Disregarding Arnold's unequivocal statement, the interrogator turned the tape recorder on and began asking Arnold questions. After some prefatory remarks, the interrogator recited the facts of Arnold's oral and written Miranda waiver at the beginning of the interrogation and asked Arnold if the recitation was correct. Arnold answered, "yeah." The interrogator then asked a series of substantive questions, to each of which Arnold replied, "No comment."

Notably, the interrogator did not ask Arnold if he was waiving his right to refuse to speak on tape, and Arnold did not waive that right. There was no talk of Miranda rights beyond the statement of historical fact that Arnold had signed the waiver card half an hour earlier.

These facts of the interrogation are clear — and uncontradicted — from two sources in the record: the testimony of the interrogating officer and the transcript of the tape recording.⁴ The officer testified about the tape recording as follows:

Q. At some point you actually did something with the tape recorder which would indicate that you were getting ready to start recording?

A. Yes.

Q. And when you did that, did Mr. Arnold have any particular reaction?

A. He said he didn't want to talk on-tape.

. . . .

Q. Now, notwithstanding the fact that Mr. Arnold told you he did not want to talk on-tape, did you go ahead and activate the tape anyhow?

A. Yes.

Q. When you activated the tape, did you go over again the admonishment and waiver of rights?

A. Yes.

Q. Did Mr. Arnold acknowledge on-tape that he had agreed to waive his rights and talk to you?

A. Yes.

The transcript of the tape recording reads as follows:

4321 Testing. Testing. Yeah, today is, uh, July 12, 1996. It's about twelve noon. I'm Sergeant Joseph Aguirre of the Oakland Police Department Robbery Unit presently in Susanville State Prison. Present also is my partner, Sergeant Earl Sherman, and the subject of the interview is Mr. Grady Arnold.

Grady, would you state your name and birth date for the tape?

A: Grady Arnold, [unintelligible] eleven [unintelligible].

Q: And, Grady, prior to turning the tape on, I filled out the statement form with your name and address and so forth, and, I advised you of your rights. I advised you that you have the right to remain silent, anything you say can be used against you in a court of law. You have the right to talk to a lawyer and have one present while you are being questioned. If you cannot afford a lawyer, one will be appointed to represent you for any questioning if you wish and I asked you if you understand each of these rights I've explained to you and you said, "yeah." I said, having these rights in mind, do you wish to talk to us now and you said, "yeah." I wrote your responses here next to the questions and I had you place your initials on the statement form. Do you recall doing that?

A: Yeah.

Q: Okay. Now Grady, we were talking to you about an attempted robbery that occurred up at the Shell gas station at 2120 Montana, which occurred on September 25, 1995 . . . about 11:30 at night . . . ah, under . . . it's reported under Oakland Police Department Report No. 95-91681. And, we asked you where you'd been that day and you wanna tell us where you started off?

A: No comment.

Q: `Kay. Did you tell us that you were at your father's house earlier in the day?

A: No comment.

Q: Grady, were you at the gas station?

A: No comment.

Q: Isn't it true that you just finished telling us that you've never been to the gas station that —

A: No comment.

Q: — you never touched anything, and that you've never touched the gun? Is that true, Grady?

A: No comment.

Q: Grady, did you — you were telling us earlier that you wanted to give a statement, have you now changed your mind, Grady?

A: No comment.

Q: Do you want to give a statement or don't you?

A: No comment, man.

Q: [other voice] So, Grady, what you're saying . . . any question we ask you at this time you're going to say no comment, is that correct?

A: No comment.

Q: No comment. Okay. Well, Grady, I'll go ahead and conclude the interview here, it's uh, 12:03.

This tape recording was referred to by the prosecutor in his opening statement, introduced into evidence, and highlighted in the State's closing argument.

III.

The state courts unreasonably applied Fifth Amendment law as established by the Supreme Court. The state courts and the federal district court ("prior courts") essentially ignored Arnold's unequivocal statement that he did not want to talk on tape. The prior courts did not hold that Arnold's statement was equivocal. They simply ignored the statement, instead focusing entirely on Arnold's "no comment" responses when the interrogator turned the tape recorder on despite Arnold's clear statement that he didn't want to talk on tape.⁵

Any reasonable application of the law must begin by recognizing that Arnold clearly and unequivocally invoked his Miranda rights selectively, with respect to a tape-recorded interrogation. See Connecticut v. Barrett, 479 U.S. 523, 529, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987) (holding that a suspect can selectively invoke Miranda rights as to a written statement, but waive them as to oral interrogation; and explaining that the words of a Miranda request will be "understood as ordinary people would understand them"). See also Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir.1988). Any reasonable application of the law must recognize that Arnold's statement precluded the interrogator from turning on the tape recording during the interrogation. See Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602 ("If the individual indicates in...