Williams v. Withrow, 90-2289

• Decision Date: 11 September 1991
• Docket Number: No. 90-2289,90-2289
• Citation: 944 F.2d 284
• Parties: Robert Allen WILLIAMS, Jr., Petitioner-Appellee, v. Pamela WITHROW, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 284

944 F.2d 284

Robert Allen WILLIAMS, Jr., Petitioner-Appellee, v. Pamela WITHROW, Respondent-Appellant.

No. 90-2289.

United States Court of Appeals, Sixth Circuit.

Argued May 16, 1991.

Decided Sept. 11, 1991.

Daniel P. O'Neil, Traverse City, Mich. (argued and briefed), for petitioner-appellee.

Robert Allen Williams, pro se.

Timothy A. Baughman, John D. O'Hair, Pros. Atty., Jeffrey W. Caminsky (argued and briefed), Detroit, Mich., Becky M. Lamiman, Asst. Atty. Gen., Suzanne L. Wilhelm, Office of Atty. Gen., Habeas Div., Lansing, Mich., for respondent-appellant.

Before JONES and RYAN, Circuit Judges, and PECK, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

Appellant Pamela Withrow, the warden of the Michigan Reformatory, appeals from an order of the district court granting the habeas corpus petition of Robert Allen Williams, Jr. As we discern no error in the district court's grant of Williams' habeas corpus petition, we affirm.

I

On April 6, 1985, police officers in Romulus, Michigan discovered two males shot to death in a parked car. Responding to a rumor, Detective Sgt. David Early of the Romulus Police Department went to Williams' house to question him on April 10, 1985. At the house, Williams was searched but not handcuffed, and was asked to accompany Sgt. Early to the police station. When Williams arrived at the police station, he was questioned by Sgt. Early and his partner, Sgt. Ondejko. Williams was not given Miranda warnings before this first round of questioning. After Williams denied having any information about the murders, Early told Williams that "the main thing on this is we want the shooter. We're not real interested in who was there or who was along for the ride or anything else. We get the shooter on this and we're gonna pretty well be content." Williams continued to deny being present at the scene, prompting Early to state:

You know everything that went down. You just don't want to talk about it. What it's gonna amount to is you can talk about it now and give us the truth and we're gonna check it out and see if it fits or else we're simply gonna charge you and lock you up and you can just tell it to a defense attorney and let him try and prove differently. We're not playing. We've been chasing around on this too fuckin' long.

Sgt. Early then gave Williams the choice of answering his questions or being formally charged. Sgt. Early also told Williams that he had "big problems", that the police were close to issuing an arrest warrant for him, and that the police knew of witnesses who would testify against Williams. At this point, Williams admitted that he had provided the murder weapon because he wanted to sell the gun, and that the murderer had called him after the crime and told him he had discarded the gun and his clothes in the river. Questioning continued, with the police again insisting that they were only interested in finding the shooter. Williams again denied being present at the scene of the crime. Sgt. Early later testified that the April 10 interrogation proceeded for "approximately 35 to 40 minutes" before Williams was read his Miranda rights. Williams was questioned a second time on April 10, 1985, and again on April 12. Miranda warnings were given prior to the second session on April 10, and before the April 12 session, and Williams indicated his understanding of his rights.

At the second interrogation on April 10, the following exchange took place between Williams, Sgt. Early, and Sgt. Ondejko:

Ondejko: Do you wish to change your story?

Williams: What difference is it going to make?

Ondejko: It's gonna make a lot of difference to you.

Early: I told you. If you told the truth ...

Williams: I've been telling you the truth.

Early: Oh, you've been making up fairy tales ever since you've been in here. You're giving us, like he says, parts of the truth, parts of what you want us to believe, and part of what really happened.

Williams: If I tell you everything that happened, I'm gonna walk outta here, huh?

Ondejko: Someday you may stand a chance of walking.

Early: I'll make you a deal. You tell us everything that happened and you tell us the truth and I confirm it on a polygraph that you're telling us the truth. Yeah, you walk.

Following this exchange, Williams admitted driving Mark Sennett, identified as the shooter, to the scene of the murders following behind the victims' car. He also admitted that he turned his car around at the request of Sennett, that he heard shots and muzzle flashes, and that he drove Sennett away from the scene and helped dispose of Sennett's clothing and the murder weapon. Williams denied knowing that Sennett was going to kill the two victims.

Officer Early then elaborated on the deal with Williams:

Early: You're worried now about us turning this around on you and charging you too. We've said that basically we want you as a witness. Right?

Williams: Yes.

Early: Alright, I'm gonna tell you right now, at the start of the recording, if we use this recording against you, it's got to be in its entirety. We can't edit it or cut it. We told you if you are a witness to this and if you are telling the truth, and if you are willing to testify, then we are not going to charge you as a co-defendant. That's what we told you, right?

Williams: Yes.

Early: Alright. We're still gonna go by that agreement. And I don't. [Abrupt stop.] You've been around, but if, whether you're up on the law, if a police officer makes an agreement like that it's got to be honored. You can go to court and say we made that agreement and we backed down on it and we can't present these tapes and use anything else we've got. So it's an agreement we have to stick to by law. I can't promise you anything and then turn around and back out of it and use it against you.

Williams: O.K.

Early: Right now you're a witness to the crime. But we want the truth. If you start lying to us and you start playing games, yeah, we're gonna charge you. A witness doesn't do us any good unless he tells the truth. We're not trying to hang anybody with any made up testimony or anything but the truth. After you're done with this, we still gonna put you on a polygraph and you're gonna have to show us you're telling the truth. So that's the deal. You're telling the truth and you're not being charged. That fair enough?

Williams: Yeah.

On October 29, 1985, Williams was convicted of two counts of first-degree murder and two counts of felony firearm charges in the Circuit Court of Wayne County. The state trial court excluded the statements from April 11 and 12 as "improperly obtained" under Michigan caselaw because the delay in actually arresting Williams was "used as a tool to extract the statements". On September 7, 1988, the Court of Appeals of Michigan affirmed Williams' conviction. People v. Williams, 171 Mich.App. 234, 429 N.W.2d 649 (1989). The Michigan Supreme Court denied leave to appeal, and the U.S. Supreme Court denied certiorari. 493 U.S. 956, 110 S.Ct. 369, 107 L.Ed.2d 355 (1989). On January 31, 1990, Williams filed a petition for a writ of habeas corpus in the U.S. District Court for the Eastern District of Michigan.

The district court first found that Williams was in custody as of the moment on April 10 when Sgt. Early gave him a choice between answering questions or being charged. As a result, Williams should have been given his Miranda warnings at that point. Instead, however, the police continued their questioning without giving Miranda warnings, and Williams made inculpatory statements. Williams made further inculpatory statements after Miranda warnings were finally given some forty minutes into the interrogation.

The district court evaluated the admissibility of these post-Miranda statements under Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). Elstad held that there is no presumption of coercion when a suspect makes incriminating statements following earlier, unwarned statements. In that situation, "the relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements." Elstad, 470 U.S. at 318, 105 S.Ct. at 1297.

Focusing on whether Williams' admissions were induced by a promise of leniency, the district court concluded that:

In the context of this uncounseled interrogation, following a session where police had obtained unwarned admissions and repeatedly suggested that they were only interested in finding out who the actual shooter was, this Court finds that the statement that petitioner would "walk" if he told the truth constituted a promise of leniency sufficient to overcome petitioner's will and render his admissions involuntary. As Justice White indicated in Brady [v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) ], "[i]n such circumstances, even a mild promise of leniency [may be] sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess." Brady, supra, at 754, 90 S.Ct. at 1472.

The district court declared that Williams' inculpatory statements on April 10 obtained after the Miranda warnings were given violated the dictates of Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) because of the coercion. See also Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897) (to be admissible, a confession must be "free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.").

The district court also considered the statements under harmless error analysis....