Etherly v. Davis

• Decision Date: 25 August 2010
• Docket Number: No. 09-3535.,09-3535.
• Citation: 619 F.3d 654
• Parties: Aris ETHERLY, Petitioner-Appellee, v. Randy DAVIS, Warden, * Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

619 F.3d 654

Aris ETHERLY, Petitioner-Appellee,

v.Randy DAVIS, Warden, ^* Respondent-Appellant.

No. 09-3535.

United States Court of Appeals,Seventh Circuit.

Argued Dec. 11, 2009.

Decided Aug. 25, 2010.

As Amended on Denial of Rehearing and Suggestion for Rehearing En Banc Oct. 15, 2010.

COPYRIGHT MATERIAL OMITTED.

John J. Hamill, Kevin Case (argued), Jenner & Block LLP, Chicago, IL, for Petitioner-Appellee.

Karl R. Triebel (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellant.

Before BAUER, RIPPLE, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

This appeal arises from the district court's decision to grant Aris Etherly's petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. The district court reviewed the Illinois Appellate Court's determination that Etherly's inculpatory statement to the police was voluntary. Based on the applicable “totality of the circumstances” test, the district court ruled such determination by the appellate court was objectively unreasonable. As a result of this ruling, the district court granted Etherly's habeas corpus petition, denied the state's motion to stay the judgment pending appeal, and ordered the state to either retry or release Etherly within 120 days.

The state appealed the denial of its motion for a stay of release and we heard oral arguments on that issue, after which we granted by per curiam opinion the state's motion for a stay. Etherly v. Schwartz, 590 F.3d 531 (7th Cir.2009). We found that because it was not reasonably likely that we would affirm the district court's decision, the traditional factors regulating the issuance of a stay outweighed Etherly's presumption in favor of release pending appeal. We now reverse the grant of habeas corpus relief.

I. Background

On the night of July 13, 1995, in Chicago, Illinois, then-fifteen-year-old Aris Etherly and several other members of the Gangster Disciples street gang got into a car and drove around looking to shoot and kill members of a rival gang, the Vice Lords. Jeremy Rush and Henry Wingard were standing on Wingard's front porch when the Gangster Disciples' car approached. Wingard was wearing a cap with the brim turned to the left, signifying that he was a member of the Vice Lords. When the car's occupants started shooting, Wingard safely ducked inside the house, but Rush was not so fortunate. Rush was fatally shot in the head.

Four days after the shooting, Chicago police officers arrived at Etherly's house between 5:00 and 5:30 in the morning. When Etherly's father answered the door, police noticed that a group of people were, given the early hour, suspiciously gathered in the home. The officers informed the father that they were investigating a shooting and wanted to interview Etherly. There is some dispute concerning the details of this conversation.

The father claimed that the officers were vague, did not inform him where they were taking his son, and that they said that Etherly could be picked up in an hour. In contrast, Detectives Golab and Spencer recounted telling the father that they were taking Etherly to their Area 2 Detective Division office on 111th Street, offered for the father to follow them to the station, and provided the father with a business card. Regardless of what Etherly's father said to the police or what they said to him, the series of events that followed are undisputed.

The officers arrived at the station around 6:00 a.m. with Etherly in tow. Etherly was not interviewed until 8:00 a.m., at which time Youth Officer Frank DiGrazia arrived. With Officer DiGrazia in the room, Detective Spencer first read Etherly his Miranda rights and Etherly stated that he understood those rights. Detective Spencer then questioned Etherly. Etherly initially denied any involvement in the shooting. At no time throughout the day did Officer DiGrazia make an attempt to speak to Etherly.

With no information forthcoming from Etherly, the interview concluded after thirty minutes. Etherly then requested to use the bathroom, and he was escorted there by an unidentified uniformed officer. Upon his return from the restroom, Etherly requested to speak to Detective Spencer. DiGrazia was not present during this second conversation. Etherly told Detective Spencer that he wanted to show him where the guns involved in the fatal shooting were hidden. Detective Spencer then asked Detective Golab to meet with Etherly, and Detective Golab reminded Etherly of his Miranda rights. Etherly informed the detectives that the uniformed officer had told him that he had an obligation to tell the truth, and that “it would go better for him in court” if he helped the police to locate the guns. Detective Golab testified that he told Etherly that “they could not promise him anything other than to inform the court of his assistance,” and Etherly indicated that he understood. Etherly then led the detectives to where the guns were located. The first time the state informed the trial judge of Etherly's cooperation was at the hearing on Etherly's motion to suppress his statements.

Upon his return to the station, Etherly met with Assistant State's Attorney (“ASA”) Joseph Alesia, Detective Golab, and Officer DiGrazia. Alesia introduced himself to Etherly and explained that his role was as a prosecutor, not as Etherly's attorney. He then advised Etherly of his Miranda rights, which Etherly claimed to understand. Etherly requested and made a court-reported statement, to which he added his own handwritten statement. In both statements he confessed to his involvement in the shooting, including the fact that he had fired seven shots.

During the interview with ASA Alesia, Etherly said that he had been treated well by the police, that he understood his rights at all times, and that his statement was voluntary. In response to ASA Alesia's inquiry into whether anyone had made any promises in exchange for Etherly's statement, Etherly replied that the unnamed uniformed officer had told him “to get the guns so the judge would know I helped them.”

Prior to the suppression hearing, the trial court ordered that Etherly be evaluated by Dr. Phillip Pan, a staff psychiatrist for Cook County's Forensic Clinical Services. In his report, Dr. Pan stated that Etherly was only marginally cooperative with the interview. He opined that although Etherly was depressed and had borderline intellectual functioning, he found that Etherly was able to understand his Miranda rights and knowingly waive them. The report concluded “that [Etherly] understands that he is not required to talk to the police, ... [and] that he is entitled to have a lawyer present while he is questioned.”

Etherly contested the admission of his statement, arguing that it had been made involuntarily and unintelligently. Etherly pointed out that his handwritten statement had a number of spelling errors. Also, Etherly's father testified that Etherly was illiterate and had been taking special education classes since the second grade. He also testified that Etherly had only attended school through his freshman year of high school, and only then by supplementing the standard curriculum with a special tutor. Still, he had failed all his courses. After balancing all the evidence, the trial court found that Etherly's statement was voluntary. It therefore denied Etherly's motion to suppress the statement.

At trial, Etherly presented a single witness in his defense, Rebecca George.

George, a teacher at the Cook County Juvenile Temporary Detention Center where Etherly was held pending trial, testified that Etherly was illiterate. George stated that Etherly progressed slowly during phonics lessons. She observed that he had difficulty knowing the sounds of the letters of the alphabet and that “he uses words ... from how he hears other people use words.”

The state's evidence at trial consisted of Wingard's testimony about the shooting; Officer Robert Baike's testimony that he recovered .380-caliber shell casings from the murder scene; Detective Golab's and Detective Spencer's accounts of the investigation, including their interviews with Etherly and his disclosure of the .38-caliber revolver's location; forensic specialist Ernest Warner's conclusion that the bullet found in Rush's brain was fired from the same weapon that fired the .380-caliber casings found at the murder scene; and then-ASA Alesia's testimony regarding Etherly's inculpatory statement. At the close of trial, the jury found Etherly guilty of first-degree murder. The court sentenced him to a forty-year term of imprisonment.

On appeal to the Illinois Appellate Court, Etherly argued, among other things, that the trial court erred in finding that his inculpatory statement to the police was voluntary. The court applied a totality of the circumstances test to determine whether Etherly's confession was voluntary. The court stated that the relevant factors included “the defendant's age, education, intelligence, experience, and physical condition; whether he was advised of his constitutional rights; the existence of threats, promises or physical or mental coercion; and whether the confession was induced by police deception.” (Appellant App. at 36.) The court also addressed the additional factors for determining the voluntariness of juvenile statements, such as the time of day when questioning occurred, the presence or absence of a parent, and the minor's previous experience with the court system. The court stated that “[t]he overriding concern ... is whether the defendant's will was overborne.” ( Id.)

The court found that the following factors weighed in favor of finding that the statement was involuntary: (1) Etherly was fifteen years old at the time of the statement; (2) Etherly had a lack of intellectual capacity; and (3) Etherly had no experience with the criminal justice system. The court then discussed the factors that weighed in favor of finding the statement voluntary: (1) Etherly's father was...