Opinion
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
MARGARET M. MORROW, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the Petition; the Magistrate Judge's Report and Recommendation ("R&R"); the Objections to the R&R filed on December 18, 2009; and the records and files. Based upon the Court's de novo review, the Court agrees with the recommendation of the Magistrate Judge.
Respondent did not file a response to Petitioner's objections.
Petitioner states that between June 3 and 4, 2000, detectives continued to question him, even though he had previously invoked his right to remain silent. (Objections at 3.) Petitioner also notes that the Court of Appeal referred to the police questioning in passing. ( Id. (citing Lodged Document ("LD") 8 at 10 ("Detectives managed to elicit some additional information from defendant before terminating the interview.").) Petitioner contends that this post-invocation questioning violated his constitutional rights. (Objections at 3.)
Although the Court has found the police questions and Petitioner's responses during the interview of June 3, 2000, the Court has been unable to find - and Petitioner has not cited - anything in the record regarding police questioning of Petitioner on June 4, 2000. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.").
"[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). "[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his right to cut off questioning' was scrupulously honored.'" Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).
Petitioner invoked his right to remain silent while being questioned by the police in the early morning hours of June 3, 2000. (LD 1 at 457, 504-05.) During the remainder of the interview, Petitioner nonetheless answered the police's additional questions. ( Id. at 506-11.) The tape of the interview was played to the jury, and a transcript of the tape was given to the jury to assist them in understanding the tape. (LD 4 at 3018.)
Although Petitioner alluded to this questioning in his California briefing (LD 5 at 24 (Court of Appeal opening brief) & LD 10 at 12-13 (California Supreme Court petition for review)), Petitioner did not claim that any statements he made during this questioning should have been excluded at trial. Instead, he challenged only the admission of the statements he made to Jordan, the informant. (LD 5 at 31-32; LD 10 at 11.)
Although Petitioner never argued to the Court of Appeal that the questioning violated his constitutional rights, he did argue to the California Supreme Court that "in managing to elicit some additional information' the detectives violated Mr. Jackson's Fifth Amendment rights." (LD 10 at 14 (quoting LD 8 at 10).) Although the gravamen of Petitioner's claim in all of his state briefs - and here - was clearly that his statements to the informant should have been excluded, this claim was nonetheless arguably exhausted.
After Petitioner invoked his right to remain silent, the police asked the following questions and Petitioner made the following answers:
WHELAN: Would you like some more water?
PETITIONER: No, I'm not
WHELAN; Would you like some coffee?
PETITIONER: I don't drink coffee.
* * *
WHELAN; You don't want to talk to me anymore?
PETITIONER; No.
WHELAN: Why not?
PETITIONER: Why should I?
* * *
WHELAN; Let me ask you one thing about your shoes at the house. Are those the clothes at the motel, are those all yours?
PETITIONER: Not all of them.
WHELAN: Does it belong to somebody else then?
PETITIONER: Some of them are his, some of them are mine.
WHELAN: Okay. Any reason why - you said the most money you ever had on you is about twenty - maybe, two hundred bucks borrowed from friends. Is that correct?
PETITIONER: Uh-huh.
WHELAN: Is there any reason why you would have any more money than that?
PETITIONER: Yeah.
WHELAN: Why?
PETITIONER: Because I sold my car.
WHELAN: Not back, that's over a month ago.
PETITIONER: (Inaudible).
GOLLAZ: We're talking in about the last couple weeks.
WHELAN: We're talking about in the last week or so. Is there any reason why you would have anywhere from fifteen hundred to two thousand dollars on your person?
PETITIONER: Man, I wish I had that much money.
* * *
Fifteen hundred to two thousand dollars, you're dreaming.
WHELAN: You never had that kind of money, huh?
PETITIONER: Never. Never, ever.
* * *
Never have I had that much money on me, period.
* * *
GOLLAZ: Is there any reason why you would have blood on your clothing and on your shoes?
PETITIONER: I don't see where I would get blood on my clothing cause
GOLLAZ: In the last couple weeks, do you know of getting cut or any reason why you would bleed on your own clothing?
PETITIONER: On what clothing would that be?
GOLLAZ: If the clothing you were wearing in the last week or so?
PETITIONER; No.
GOLLAZ: No, I mean, cut shaving or bloody nose or blood on your shoes, your pants?
PETITIONER: I don't know.
GOLLAZ: Your shoes?
PETITIONER; I don't know.
WHELAN: How about that injury on your wrist there. How did you get that?
PETITIONER: This here?
WHELAN: Yeah.
PETITIONER: It was provided by handcuffs that I have been wearing all day.
WHELAN: Is that where you got that?
PETITIONER: Yeah.
GOLLAZ: Let me see your hands.
WHELAN: What about this scar right here? That's
PETITIONER: It's kind of old.
GOLLAZ: Do you have any cuts on your hands? What happened to your finger here? What's wrong
PETITIONER: It is always there.
WHELAN: How did you do it?
PETITIONER: It's old. (Inaudible) about fifteen years old.
WHELAN: What did you do to injure it?
GOLLAZ: Let me ask you this, let me ask you one last question. Is there any reason why you would have Mr. Patton's blood on your clothing?
PETITIONER: I don't think I have any clothes with my blood - with his blood on my clothes.
GOLLAZ: Okay. But if you did, would there be a reason why that happened?
PETITIONER: I, I guarantee you I have no clothes with any blood on them. Okay?
(LD 1 at 505-11.)
Thus, in his answers, Petitioner gave the police the following information: (1) some of the clothes at the motel were his, some weren't; (2) he sold his car over a month ago; (3) he never had $1,500 to $2,000; (4) he had no one's blood on his clothing; (5) the handcuffs cut him; and (6) he had a scar that was about 15 years old somewhere on or around one of his hands.
A Miranda violation is subject to harmless error analysis. Arizona v. Fulminante, 499 U.S. 279, 295-96, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). An error is harmless unless it had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The error here is harmless for several reasons. First, Petitioner has not identified any statement he made that was incriminating or would have influenced the jury's verdict. There is essentially nothing he said after he invoked his right to remain silent that would have had any effect on the jury's verdict. Second, part of what Petitioner said was a repetition of what he said during the initial part of the interview before he invoked his right to remain silent. Petitioner said he sold his car a month ago for $1,500, although the person who bought it still owed him some money. (LD 1 at 465, 489, 502.)
Third, during closing argument, the prosecutor did not rely on anything Petitioner said during the final part of the interview in his opening summation and made only one reference in his rebuttal. In the opening summation, the prosecutor referred to the police interview three times, but each involved statements Petitioner made before he invoked his right to remain silent. (LD 4 at 3621 (referring to LD 1 at 461-62); LD 4 at 3633 (referring to LD 1 at 492-93); LD 4 at 3644-45 (referring to Petitioner's demeanor during the interview and specifically LD 1 at 463).) In rebuttal, the prosecutor referred to the police interview twice. The second reference was to Petitioner's demeanor before he invoked his right to remain silent. (LD 4 at 3742 (referring to LD 1 at 496).) The prosecutor made only one reference to Petitioner's statements after he invoked his right to remain silent. According to the prosecutor, when Petitioner was asked about the blood on his clothing and shoes, Petitioner told the police: "I guarantee you, I have no clothes with any blood on them." (LD 4 at 3729-30 (referring to LD 1 at 511).) The prosecutor then argued: "He never mentions the shoes. He never says, I don't have any shoes with blood on them." (LD 4 at 3730.) However, this single reference to Petitioner's statement was not likely to have had a substantial effect on the jury's verdict for several reasons. First, the police questions about Petitioner's shoes had come earlier, and Petitioner said he knew of no reason why there would be blood on his shoes. (LD 1 at 509-10.) Second, Petitioner's statement about clothes was in response to Detective Gollaz's questions that were only about the clothes. ( Id. at 510-11.) Third, the jury was already aware of the physical evidence involving the Nike boots. The prosecutor argued that the boots had Albert Patton's blood in them, that the boots were found in the motel room, that Jordan said the boots belonged to Petitioner, that Petitioner's girlfriend said the boots belonged to Petitioner, that in the wire tape Petitioner was "really concerned about those boots, " and that Petitioner wore a size 12 (the same size as the boots). (LD 4 at 3622-23.)
In sum, the admission of the few statements made by Petitioner after he invoked his right to remain silent was harmless.
Petitioner's remaining objections are without merit.
IT IS ORDERED that the Report and Recommendation is adopted, and that Judgment be entered denying the Petition and dismissing this action with prejudice.