Smith v. Clark

• Decision Date: 22 October 2015
• Docket Number: No. 14–15162.,14–15162.
• Citation: 804 F.3d 983 (Mem)
• Parties: Jovan'z SMITH, Petitioner–Appellant, v. Ken CLARK, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

804 F.3d 983 (Mem)

Jovan'z SMITH, Petitioner–Appellant

v.Ken CLARK, Warden, Respondent–Appellee.

No. 14–15162.

United States Court of Appeals, Ninth Circuit.

Oct. 22, 2015.

Eric Martin Weaver, Law Offices of Eric M. Weaver, Albany, CA, for Petitioner–Appellant.

Karen Z. Bovarnick, Deputy Assistant Attorney General, AGCA–Office of the California Attorney General, San Francisco, CA, for Respondent–Appellee.

Before: CONSUELO M. CALLAHAN, MILAN D. SMITH, JR., and PAUL J. WATFORD, Circuit Judges.

Order; Dissent by Judge FLETCHER ; Concurrence by Judge CALLAHAN and Judge M. SMITH.

ORDER

A sua sponte call for a vote on rehearing this case en banc was made by an active judge of this court. The call failed to receive a majority of the votes of the nonrecused active judges. Fed. R.App. P. 35. The sua sponte en banc call is rejected. Judge Fletcher's dissent from denial of rehearing en banc and Judge Callahan and Judge Smith's concurrence in denial of rehearing en banc are filed concurrently with this Order.

W. FLETCHER, Circuit Judge, dissenting from the denial of rehearing en banc:

In this case, a 16–year–old high school student named Jovan'z Smith was taken to a police station and subjected to four hours of interrogation in a small, windowless room. Smith was not read his Miranda rights. Four hours later, still without his Miranda warnings, he confessed. The only question before this court is whether Smith was “in custody” under Miranda when he confessed.

The California Court of Appeal concluded that Smith was not “in custody.” It relied exclusively on the “fact” that, in the words of the court, he “was told three times that he was not under arrest and was free to go.” See People v. Smith, No. A125912, 2010 WL 4233298, at *3 (Cal.Ct.App. Oct. 27, 2010) (unpublished). In an unpublished disposition, a three-judge panel of this court denied his petition for a writ of habeas corpus, concluding that the Court of Appeal's opinion, while suspect, was neither “contrary to,” nor involved “an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). Smith v. Clark, 612 Fed.Appx. 418, 419 (9th Cir.2015).

I disagree. Smith was clearly “in custody” under Miranda . The California Court of Appeal's conclusion to the contrary rested on a misreading of California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam). In the Court of Appeal's reading, Beheler establishes a bright-line rule that a suspect who has been told repeatedly that he is “not under arrest” is not “in custody” under Miranda . But this is not the law. A police officer cannot remove an interrogation from Miranda 's reach simply by reciting magic words. We should have corrected the Court of Appeal's error. Smith's conviction, and many others, hang in the balance.

I respectfully dissent from our decision not to rehear this case en banc.

I. Background

A. Smith

Jovan'z Smith was 16 years old when he was taken from his classroom and brought to the Vallejo Police Department for questioning. Over the next four hours, he was interrogated in a small windowless room by a team of three police officers about the choking death of his daughter. The officers took his cell phone and did not return it; they evaded his questions about whether he was free to leave, at one point clearly implying that he could not leave as long as officers still had questions; they arranged for his daughter's maternal grandmother to come to the station to question and berate him; they administered a lie detector test, which they told him he failed; after the lie detector test, they repeatedly told him that he was lying; they then told him, “You can't leave this room lying.” Smith confessed only after he had been told that he could not leave the room lying. After he confessed, the officers read him his Miranda rights. Smith then repeated the confession he had just given.

The California Court of Appeal's decision that Smith was not in “custody” for the purposes of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), turned on the “fact” that Smith, according to the Court of Appeal, “was told three times that he was not under arrest and was free to go.” Smith, 2010 WL 4233298, at *3. This misstates the record: Smith was told only once, at the beginning of the interrogation, that he was “free to go.”

Smith was, however, told three times that he was “not under arrest.” The first time was at Smith's high school, when a uniformed Vallejo police officer told him he was “not under arrest” but that an investigator wanted to speak to him. Smith agreed to accompany the officer to the Vallejo Police Department. They drove to the police station in a patrol car, with the officer in the front and Smith in the back. According to the officer, they had a “friendly conversation” on the way to the station. Once at the station, the officer placed Smith in an interview room. It was roughly 2:30 PM.

The second time was in the interview room, at the beginning of Smith's interrogation, when Detective Sharon Fong entered the room, introduced herself, and told Smith he was “not under arrest” and was “free to leave at any time.” It was roughly 2:33 PM.

Fong and Smith spoke for about twenty minutes, during which time Smith offered the first of several explanations about what happened to his 18–month–old daughter, T. Smith told Fong he had accidentally left baby wipes on T.'s bed. He said that he turned away, and when he turned back, T. was “turning purple” and “throwing up blood.” He said that the doctors later told him that T. had swallowed a baby wipe.

Around 2:55 PM, a second police officer, Detective Eric Mustard, entered the interview room. Over the next half hour, Mustard asked increasingly hostile questions. He asked Smith how many children he had. He asked Smith how many girlfriends he had. He told Smith, “Honesty is a huge issue right here.... So be real honest with me.” He expressed skepticism that T. would have swallowed the baby wipes, and noted that “we will figure that out ... forensically.” He said, “[S]ometimes we get caught up in the moment and we do something that we regret and we feel bad for.” He suggested that Smith confess, and told Smith that if he did not, and it later came out that he had lied, “people are gonna look at you and judge you as a cold-hearted son-of-a-bitch.” When Mustard left the room, he took Smith's cell phone.

Around 4:10 PM, Mustard returned with T.'s maternal grandmother, N.N. began to cry almost immediately. Mustard told Smith, “You can look at me and you can tell me whatever story you want to tell me, [but] that's blood to that lady.” He told Smith again that he did not believe his story:

I told you this earlier and I tell you again, you gotta do the right thing, man, 'cause if you want to be a good person, if you want people to think you're a good person, if something bad happened, an accident happened and this wasn't something that's cold ... A lotta things runnin' through your mind right now, I know that. I told you if the truth comes out today I can help you. If it comes out tomorrow or the next day or next week I can't help you. Today, the truth.

He asked: “Can you look that lady in the eye and tell her you didn't do that?” N. then told Smith that her granddaughter, T., was brain-dead.

Around 4:50 PM, after N. and Mustard had left, Detective Frank Pucci arrived to conduct a lie detector test. As Pucci set up the test, Smith asked, “After this, will I be able to go home?” Pucci responded, “You know what, what I don't know is, are you and Detective Mustard done talking?” Smith replied, “I don't know.” Pucci said, “Okay, um, yeah. You understand you're not under arrest, okay? We're just trying to gather all the facts.” Pucci ended the exchange by saying, “So there may be some questions with Detective Mustard, I don't know. Alright?” This was the third and final time Smith was told that he was “not under arrest.” It was roughly 4:55 PM.

The interrogation continued for another hour and a half. During the lie detector test, Pucci asked Smith whether he had put the baby wipe in T's mouth. Smith said that he had not. After the test, Pucci left the interview room. When Pucci returned with Mustard, he told Smith that he had failed the test. The officers told Smith to “be honest,” and not to “lie to [him]self.” Smith changed his story somewhat, stating that he had seen T. choking on the baby wipe and had reached in to take it out. He maintained, however, that he had not intentionally hurt her.

The officers insisted that Smith was lying. Pucci asked, “Jovan'z, it didn't happen like that, did it?” Smith said it had. Pucci said, “I hear what you're saying. But it didn't happen like that.” Smith repeatedly insisted that it had, reiterating that he had gotten up to change the channel on the television and had turned around to find T. choking. Finally, Pucci told him: “Don't lie, man. You can't leave this room lying, bro.” It was 6:10 PM.

Twenty minutes later, after he had been told “you can't leave this room lying,” Smith confessed. He told his interrogators that he had pushed the baby wipes into T.'s mouth in a moment of anger. Mustard suggested that they take a break, and that Smith “write that little girl a letter” and tell her that he was sorry. Shortly thereafter, the officers brought Smith a slice of pizza, the first food he had been given since he arrived at the station. Around 8:30 PM, in a different room in the station, the officers finally read Smith his Miranda warnings. In response to questions, Smith repeated the confession he had given earlier. It had been six hours since he was first brought to the police station.

Smith was prosecuted for murder and assault of a child causing death. He moved to suppress his statements as obtained in violation of Miranda , but the motion was denied. The jury watched a tape of his pre-Miranda interrogation. The jury hung on the murder charge but convicted him of the assault charge, and Smith was...