Bucio v. Sutherland, No. 1:08-cv-00118.

• Court: United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
• Writing for the Court: S. Arthur Spiegel
• Citation: 674 F.Supp.2d 882
• Docket Number: No. 1:08-cv-00118.
• Decision Date: 04 December 2009
• Parties: Jorge BUCIO, Petitioner, v. Marci SUTHERLAND, Superintendent, Respondent.

674 F.Supp.2d 882 Jorge BUCIO, Petitioner,
v.
Marci SUTHERLAND, Superintendent, Respondent. No. 1:08-cv-00118. United States District Court, S.D. Ohio, Western Division. December 4, 2009.

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Jill E. Beeler, Jill Eileen Stone, Ohio Public Defender's Office, Columbus, OH, for Petitioner.

OPINION AND ORDER

S. ARTHUR SPIEGEL, Senior District Judge.

This matter is before the Court on Magistrate Judge Black's August 27, 2009 Report and Recommendation (doc. 23) and each of Petitioner's and Respondent's objections thereto (docs. 26 and 27, respectively). For the reasons indicated herein, the Court ADOPTS and AFFIRMS the Magistrate Judge's Report and Recommendation in its entirety and GRANTS Petitioner's writ of habeas corpus on Grounds Two and Six.

I. Background

The Magistrate Judge's Report and Recommendation is extremely thorough, both in its presentation of the facts and its analysis of the record and the law. Consequently, the Court will merely present a brief summary of the case to contextualize the Court's opinion. In brief, this case involves the following facts, taken from the Magistrate Judge's Report and Recommendation

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(doc. 23). In June of 2003, Petitioner Jorge Bucio ("Petitioner" or "Bucio"), age thirteen at the time, was left alone by his mother to care for his four younger siblings, then aged ten years, three years, two years and thirteen months (Id.). At some point that night, Bucio told his ten-year-old brother that something was wrong with the baby (Id.). The ten-year-old performed CPR when it was apparent that the baby was not breathing (Id.). The baby was nonresponsive, and, unable to find the phone, the children laid the baby on the couch and prayed until their mother returned, at which point emergency services were notified (Id.). The baby was transported to the hospital with his mother, where he later died, while Bucio and his three other siblings were taken to the police station (Id.). The police questioned Bucio first, and he initially told the detective that the baby had fallen down the stairs; upon learning that his brother had died, Bucio told the detective that he had struck the baby with a metal bar and choked him around the neck (Id.). After hearing that story, the detective read Bucio his Miranda rights and Bucio signed a statement reflecting the story (Id.).

Bucio was indicted by grand jury of one count of felony murder and one count of child endangerment (Id.). The grand jury also found Bucio age-eligible for disposition as a "serious youthful offender," and, after Bucio was subsequently found guilty of both counts, the juvenile court ordered a "blended sentence," meaning that Bucio was committed to the Ohio Department of Youth Services ("ODYS") until the age of twenty-one, and given an adult sentence of fifteen-years-to-life for murder with an additional two years for child endangerment, the adult sentence being stayed pending the successful completion of the juvenile sentence (Id.).

Having exhausted his state appeals and attempts for post-conviction relief, Bucio filed the instant petition for writ of habeas corpus, which set forth six grounds for relief, three of which he subsequently voluntarily dismissed (Id.). Before the Court, therefore, are the following three grounds:

Ground Two: Petitioner was denied his right against self-incrimination;

Ground Four: Petitioner was denied due process of law and trial by jury because the trial court made certain mandatory statutory findings before imposing a sentence greater than the maximum term authorized by the jury verdict, in violation of the Sixth and Fourteenth Amendments to the United States Constitution; and

Ground Six: Petitioner was denied effective assistance of trial counsel, in violation of the Sixth and Fourteenth Amendments to the United States Constitution (Id.).

II. The Magistrate Judge's Report and Recommendation

A brief summary of the Magistrate Judge's Report and Recommendation follows.

A. Ground Two

Petitioner's claim that he was denied his right against self-incrimination in violation of the Fifth and Fourteenth Amendments to the United States Constitution is grounded in his assertion that his initial oral statement was given while in custody, in response to interrogation, and prior to being provided the required Miranda warnings (Id.). Petitioner further claims that his second, written statement was the product of the unlawfully coerced first oral statement and was not voluntarily given (Id.).

The Magistrate Judge undertook a thorough analysis of the record and the relevant

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body of law that has fleshed out Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He correctly observed that the relevant inquiry with respect to this asserted ground contains four overarching questions: whether Bucio was in custody; whether he was interrogated while in custody; whether the second statement was tainted by the first; and whether, if the first three are answered affirmatively, the introduction of Bucio's confessions amounted to harmless error (doc. 23).

1. Whether Bucio was in Custody

The Magistrate Judge noted that the state court of appeals found that Bucio was not in custody when he made his initial statements to the detective the night of his brother's death because he was not put under formal arrest; he was taken to the police station as a potential witness and was not allowed to leave for his own protection; the interview took place not in an interrogation room but at a desk and there were no "restrictive elements" to the interview; and the detective was merely trying to glean information about the incident from Bucio, and Bucio was free to stop talking to the detective at any time (Id.). However, the Magistrate Judge found that these factors relied upon by the state court do not support the conclusion that the state's decision was reasonable (Id.). Instead, for example, the Magistrate Judge found the detective's assertion that Bucio was taken to the station and kept there for his own protection to be a subjective reason that should not be used to determine whether, objectively, a thirteen year-old being questioned by a detective at 3:00 in the morning at the police station would feel free to leave (Id.). Similarly, the Magistrate Judge found that the state court's reliance on the fact that the interview took place in the detective's office, not the interrogation room, was misplaced because "the questioning still occurred in a police-dominated atmosphere apart from petitioner's siblings, parent, or any other supportive third-party" (Id.).

In addition, the Magistrate Judge found that the state court "ignored numerous objective factors which, under Supreme Court precedent, point to the conclusion that [Bucio] was in custody at the time he gave his initial statement implicating himself in his brother's death" (Id.). Specifically, the Magistrate Judge pointed to the following facts, which, under the totality of the circumstances, would lead a reasonable person in Bucio's position to conclude he was not free to leave: Bucio did not appear at the station voluntarily; his parents were not contacted prior to the questioning, and Bucio was alone with the detective for his questioning; Bucio was not offered a break and not informed that he could refuse to answer the detective's questions; Bucio was separated from his siblings and parent and questioned for approximately forty minutes before giving incriminating statements; he was not told he was free to leave and, in fact, he was not free to leave; and he was not released after questioning but placed under arrest (Id.). Because the factors relied upon by the state court could not reasonably support a finding of non-custody, and because other factors support the conclusion that a reasonable person in Bucio's situation would not have felt free to leave at will, the Magistrate Judge found that the state court's decision that Bucio was not in custody was an unreasonable application of federal law (Id.).

2. Whether Bucio was Interrogated

Because the state court, having decided that Bucio was not in custody, never reached the question of whether he was subjected to interrogation, the Magistrate Judge reviewed the issue de novo and found that Bucio was so subjected (Id.).

3. Whether the Second Statement was Tainted by the First

While Bucio's initial statement was obtained in violation of his constitutional

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rights, the Magistrate Judge determined, Bucio did give a second oral and written statement after he was given the Miranda warnings, which raises the question of whether the Miranda warnings given before the second statement cure the ills of the un-warned first statement (Id.). The Magistrate Judge correctly noted that the issue of tainted second confessions hinges on certain key questions, including whether the first statement was made voluntarily and whether a question-first-warn-later interrogation technique was used (Id., citing to Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) and Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004)).

Regarding the voluntariness of Bucio's first statement, the Magistrate Judge found that, under the totality of the circumstances, the statement cannot be found to be voluntary (Id., citing, among others, Elstad, 470 U.S. at 318, 105 S.Ct. 1285; Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948)). The Magistrate Judge noted that the factors courts must look to for indicia of voluntariness include the age, education and intelligence of the accused; whether the accused has been informed of his constitutional rights; the length and extent of the questioning; and the use of physical punishment, such as the deprivation of food or sleep (Id., citing, among others, Schneckloth v. Bustamonte, 412 U.S. 218, 226,...