Clark v. Murphy
| Citation | 331 F.3d 1062 |
| Decision Date | 10 June 2003 |
| Docket Number | No. 00-16727.,00-16727. |
| Parties | Billy Russell CLARK, Petitioner-Appellant, v. Tim MURPHY, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
James M. Jellison argued the cause for the appellant. Anders Rosenquist, Jr., Rosenquist & Associates, Phoenix, AZ, was on the briefs.
Ginger Jarvis, Assistant Arizona Attorney General, argued the cause for the appellee. Janet Napolitano, Arizona Attorney General; Randall M. Howe, Arizona Chief Counsel, Criminal Appeals Section; Diane M. Ramsey, Assistant Arizona Attorney General, were on the brief.
Appeal from the United States District Court for the District of Arizona; Roslyn O. Silver, District Judge, Presiding. D.C. No. CV-97-00560-ROS.
Before: STAPLETON,* O'SCANNLAIN and FERNANDEZ, Circuit Judges.
Opinion by Judge O'SCANNLAIN; Concurrence by Judge STAPLETON.
The opinion and concurrence filed on January, 23, 2003, and appearing at 317 F.3d 1038 (9th Cir.2003), are amended. The amended opinion and concurrence are filed herewith.
The panel has voted unanimously to deny the petition for rehearing. Judge O'Scannlain has voted to deny the petition for rehearing en banc, and Judge Stapleton and Judge Fernandez so recommended.
The full court was advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed.R.App. P. 35.
The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions for panel or en banc rehearing will be entertained.
In this petition for writ of habeas corpus, we must decide whether a state court's determination — that the admission into evidence of a murder suspect's confession did not violate the Constitution — was contrary to or an unreasonable application of clearly established federal law, as determined by the Supreme Court.
On May 15, 1991, Cynthia Tomecko reported to Phoenix police that her mother, Anita Clark, was missing. Police focused attention on Billy Russell Clark, Anita Clark's stepson, when they learned that he had sold her automobile to a California automobile dealership. Clark was arrested on May 24, at about 11:00 a.m., attempting to pick up a check mailed from the California dealership at a post office box in Chandler, Arizona. After the arresting officer read Clark his Miranda1 rights, Clark stated that he understood those rights, and he was taken to the Phoenix police station, where he spent the balance of the day.
The first person to interview Clark was Detective Masino. There is some ambiguity in the record with respect to the size of the interview room, which was either six feet by eight, or eight feet by ten. It was furnished with a table and two or three chairs. It did not contain a drinking fountain or a toilet. At no time during this interview or the next did Clark ask to use such facilities. The interview with Detective Masino focused on the theft of the victim's car, and lasted approximately 35 minutes. Detective Masino prefaced the interview by asking Clark if he understood his Miranda rights, and Clark responded in the affirmative. During the course of this interview, Clark admitted that he had stolen Anita Clark's car, that he had done so for money, and that he had stolen the car on May 14, the day before Anita Clark was reported missing. Detective Masino terminated the interview at approximately 12:45 p.m.
Later in the afternoon, a second interview took place. This time, Detective Masino was accompanied by Detective Chambers, a homicide detective assigned to investigate the disappearance of Anita Clark. The interview began at approximately 4:00 p.m. Initially, Detective Masino conducted the interview, but after about twenty minutes detective Masino left the room and Detective Chambers took over. Detective Chambers identified himself as a homicide detective brought in to investigate the disappearance of Anita Clark, and notified Clark of his Miranda rights, reading them verbatim from a standard "rights card" supplied by the Phoenix police department. When the detective asked Clark if he understood those rights, Clark responded "yes, I do."
In the ensuing interview, Clark attempted to provide an explanation for taking his stepmother's car. Detective Chambers responded that there were serious problems with this story. Clark's reply was "I think I would like to talk to a lawyer."2 Detective Chambers responded as follows:
I told him if you — if he wanted a lawyer I would call him one. I told him I expected, if in fact he wanted a lawyer and I called him one, our dialogue would be over. I told him that [his sister] was there, I wanted to talk to her. That I was going to leave him alone for a few minutes to make a decision, and that when I returned to him I would expect his answer.
Clark acknowledged that he understood, and Detective Chambers left the interview room to interview Clark's sister. A half hour later, the detective returned to the interview room. Clark spoke first. He told the detective that he did not want a lawyer, and that he wanted to continue talking, adding by way of explanation that it was helping him to deal with the situation by talking to the detective.
The interview continued. After another twenty minutes Clark said to the detective, "should I be telling you or should I talk to a lawyer?" The detective's response was "are you asking for my personal opinion or my professional opinion?" Clark responded that he wanted the detective's opinion, should he be talking to a lawyer or should he talk to the detective? After a long silence of two minutes or so, the detective told Clark that in his personal opinion, should the case go to trial, a judge or a jury would be concerned with remorse. Using his hands as scales to illustrate his point, the detective told Clark that the judge or jury would weigh fear of punishment as against any remorse over what happened, and that in his [the detective's] opinion, remorse should outweigh fear of punishment. Clark responded, "well, let's talk about it then."
Soon after, Clark confessed to murdering his stepmother. He described how he found Anita Clark at home when he had not expected her to be there. They apparently had an argument, and Clark told the detective how he had taken hold of her head and snapped her neck, and how she collapsed immediately on the floor. He told the detective that after he realized what he had done, he panicked, placed her body into the trunk of her car, and drove out to the desert to dispose of the body. Later that night, Clark led detective Chambers and another homicide detective, Bob Mills, to the burial site, which was approximately 67 miles outside Phoenix, near Tumbleweed, Arizona. There, Clark led the detectives to the burial site, where they found the charred remains of Anita Clark.
Clark was indicted on one count of first degree murder and one count of theft. Before trial, Clark moved to suppress his confession, claiming it was taken in violation of Miranda and its progeny, and that it was involuntary. The motion was denied, and the confession was admitted at trial. Clark's position at trial was that he was lying when he confessed to the police. He admitted to burning and burying his stepmother's body and then stealing and selling her car, but he maintained that he did not kill her. He alleged that he discovered his step-mother's body in the hallway, that he thought his father had killed her, and that he disposed of the body in order to protect his father. The jury convicted Clark of second degree murder, and theft of property. Clark was sentenced to consecutive, maximum, aggravated terms of twenty years imprisonment on the murder conviction, and ten years for theft.
On appeal to the Arizona Court of Appeals, Clark alleged that the trial court erred in denying his motion to suppress the confession, because it was taken in violation of Miranda, and it was involuntary. The Court of Appeals affirmed the convictions. The Court of Appeals found that the statement "I think I would like to talk to a lawyer" was ambiguous, and therefore the police were not required to cease questioning. It further found that, considering the totality of the circumstances, Clark's statement was voluntary. The Arizona Supreme Court denied review.
Clark filed a petition for writ of habeas corpus in the United States District Court for the District of Arizona, raising the same grounds for relief as were raised in state court. The case was referred to a magistrate judge, who issued a report and recommendation in January, 1998. The magistrate concluded that Clark made an unambiguous request for counsel, and that it was unreasonable for the state court to hold otherwise. The magistrate nonetheless found that Clark was not entitled to relief because he had subsequently waived his right to counsel. He also found that the statement was voluntarily given. The district court rejected that part of the magistrate judge's report which found that Clark had made an unambiguous request for counsel. The court concluded that the Arizona Court of Appeals' finding that Clark's statement was ambiguous was not contrary to or an unreasonable application of clearly established federal law. The district court further found Clark's confession was voluntary, and there was no due process violation in admitting it at trial.
Clark filed a timely notice of appeal. On August 18, 2000, the district court entered an order denying a certificate of appealability stating that probable cause did not exist for the appeal. Our court granted a certificate of appealability on February 21, 2001 on the issue whether the state trial court erred by denying Clark's motion to suppress his post-arrest statements because (1) they were obtained in violation of his Miranda rights, or (2) they were involuntary.
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