Dixon v. Houk

• Decision Date: 09 December 2010
• Docket Number: No. 08-4019,08-4019
• Citation: 627 F.3d 553
• Parties: Archie DIXON, Petitioner-Appellant, v. Marc C. HOUK, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

627 F.3d 553 Archie DIXON, Petitioner-Appellant, v. Marc C. HOUK, Warden, Respondent-Appellee. No. 08-4019. United States Court of Appeals, Sixth Circuit. Argued: Aug. 5, 2010. Decided and Filed: Dec. 9, 2010.

ARGUED: Michael J. Benza, Law Office of Michael J. Benza, Chagrin Falls, Ohio, for Appellant. Thomas E. Madden, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Lawrence J. Whitney, Burdon & Merlitti, Akron, Ohio, Henry F. DeBaggis, Cleveland, Ohio, for Appellant. Thomas E. Madden, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: MERRITT, SILER, and COLE, Circuit Judges.

MERRITT, J., delivered the opinion of the court, in which COLE, J., joined. COLE, J. (pp. 559-68), delivered aseparate concurring opinion. SILER, J. (pp. 568-72), delivered a separate dissenting opinion.

OPINION

MERRITT, Circuit Judge.

This is a coerced confession, death penalty case. On November 4, 1993, at the police station house in Toledo, Ohio, petitioner Dixon, after receiving Miranda warnings, advised detectives that he would not voluntarily answer their questions without a lawyer present to advise him. Notwithstanding his refusal to answer questions voluntarily, the detectives five days later devised a strategy to put pressure on Dixon to confess by questioning him, without Miranda warnings. The primary habeas corpus issue raised by Dixon is what effect the deliberate, planned police decision to continue the questioning but not to give warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)-a strategy that also included an offer "to cut a deal" for Dixon rather than his confederate (Hoffner)-has on the admissibility of a confession rendered four hours later when he agreed to confess.

The detective told Dixon at the end of the unwarned interrogation, "Now is the time to say so [confess] because if Tim [Hoffner] cuts a deal it's kind of like a bus is leaving. The first one that gets on is the only one that gets on." Ohio v. Dixon, 101 Ohio St.3d 328, 805 N.E.2d 1042, 1051 (2004). The police designed a strategy to get a coerced confession without giving Miranda warnings. The confession would then be followed by the warnings given in a tape recording before the confession was recorded. Based on this inverted sequence of events-refusal to answer after Miranda warnings, re-interrogation without warnings, confession, recorded warnings, recorded confession-the prosecution argues that the warnings after the initial confession made the confession "voluntary." The question is whether the police can cleanse what would otherwise be an inadmissible confession in this way. The Ohio trial judge said, "No," but he was reversed by the Ohio Supreme Court. We agree with the trial judge. A confession obtained by this kind of police pressure is inadmissible under Miranda and coerced and involuntary under the Due Process Clause. If the consequences of this kind of deliberate, unlawful conduct specifically designed to violate Miranda and get a confession is allowed to prevail, as our dissenting colleague contends, the time has come to simply overrule Miranda.

I. Factual and Procedural Background

On November 4, 1993, Dixon was interrogated at the police station and expressly exercised his right to remain silent unless a lawyer were present, although he had not been technically "arrested" at that time. The detectives were, therefore, on notice that Dixon did not want to talk to them in the absence of his lawyer. After his formal arrest for murder five days later on November 9, he was interrogated twice more. The detective decided not to give him any Miranda warnings during the first of these two sessions because as the Ohio Supreme Court found, in agreement with the trial court, "the detectives believed that Dixon would invoke his right to counsel if he were issued Miranda warnings," which would foreclose further interrogation and defeat their effort to get a confession. Ohio v. Dixon, 805 N.E.2d at 1049. The detectives' coercive strategy succeeded; in the first session, Dixon confessed to a closely related crime. Four hours later, in the second session, Dixon capitulated to the pressure. The detectivesadvised him of his Miranda rights, and he confessed to the murder.

The Ohio trial judge immediately suppressed Dixon's statements confessing to the murder because "they were obtained as a result of a deliberate, bad faith plan on the part of the police to violate his rights" under Miranda, including an "ultimately false" statement by the interrogator in the form of a "promise of possible benefits" if Dixon confessed. The trial judge also found that, although the detectives said that Dixon told them during the second interrogation on November 9 that he had talked to his lawyer by phone and was following his lawyer's advice to confess, this statement by Dixon was false. The trial judge found that he had not talked to his lawyer and that no lawyer would likely have given him such advice. Ohio v. Dixon, Trial Court Opinion and Journal entry, Appellant Appendix, Vol. 3, p. 1252. The State took an interlocutory appeal on the suppression issue, and the Ohio Court of Appeals disagreed with the trial judge and found the confession admissible despite the deliberate violation of Miranda. Ohio v. Dixon, 101 Ohio App.3d 552, 656 N.E.2d 1 (1996). (This decision was later upheld by the Ohio Supreme Court. 101 Ohio St.3d 328, 805 N.E.2d 1042.) Dixon was then convicted on the basis of the confession of a brutal murder in which he participated with his associate in burying the victim alive. The Ohio jury sentenced him to death and then sentenced his associate to death.

After exhausting both his direct and state post-conviction appeals, Dixon filed for a writ of habeas corpus. Unlike the Ohio trial judge, the district court did not find the interrogation to be coercive. It followed the ruling of the Ohio Supreme Court on the Miranda violation and fully accepted its argument that Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), had held that confessions like the one in this case rendered under an "interrogate first, warn later" police strategy were admissible. Because Miranda and Elstad, as well as many other cases, forbid this type of deliberately coercive police strategy that yields an involuntary confession, we reverse the district court and issue the writ of habeas corpus.

II. The Errors of the Ohio Supreme Court under AEDPA

To issue the writ, we must conclude that the state courts' adjudication (1) "involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court," or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d). The Ohio Supreme Court erred in both ways. First, its reliance on Elstad as the basis for admitting the confession involved an unreasonable application of that case. Second, its finding that Dixon's confession, after first asking for a lawyer, was not influenced, caused, or coerced by the detectives' deliberate "confession first, warnings later" police strategy was based on an unreasonable determination of the facts and flatly contradicted the trial court's findings. The detectives planned to get a confession by violating the Miranda warning requirement after Dixon asked for a lawyer, and their plan worked four hours later when they returned for further interrogation and got the confession.

The Ohio Supreme Court relied on Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), for its conclusion that Dixon's confession was admissible and not coerced and involuntary under Miranda and Due Process. In that case, an officer mentioned a burglary when hecame in to arrest the defendant at the defendant's home. The defendant immediately responded that he was involved. Elstad held that the momentary statement and response had "none of the earmarks of coercion" that is likely to produce an involuntary confession, id. at 316, 105 S.Ct. 1285, and that the defendant's later full-dress confession at the station house after full and complete Miranda warnings was admissible. The Court in Elstad defined the concept of a "coerced" confession and distinguished the case from other cases in which the failure to warn was accompanied by "actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will." Id. at 309, 105 S.Ct. 1285. In a later case, Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), the U.S. Supreme Court said that the holding in Elstad on its face was obviously designed to distinguish a case exactly like Dixon's in which the police follow a deliberate question-first, warn-later strategy. The Supreme Court in Seibert said that Elstad stands for the proposition that such a "police strategy adapted to undermine the Miranda warnings" renders the confession inadmissible "because the question-first tactic threatens to thwart Miranda's purpose of reducing the risk that a coerced confession would be admitted." Id. at 617, 124 S.Ct. 2601. Elstad itself is clear, and Seibert simply reinforced its meaning.

In the instant case, five days before the question-first strategy was used, Dixon had made it completely clear to the police that he did not want to talk to the detectives without a lawyer present. Not only is the police strategy used here inconsistent with Elstad and Seibert, it contravenes the clear language of Chief Justice Warren's opinion in Miranda itself.

Once warnings have been given, the subsequent procedure is clear. 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

...