CA10 finds hospital interview complied with Miranda.

Davis v. Workman, No. 11-6022 (10th Cir. Aug. 28, 2012) (Hartz, J.) — The Tenth Circuit affirmed the denial of habeas relief to an Oklahoma death-row prisoner. Its discussion focused mainly on the claims it certified relating to the petitioner’s interviews with police detectives while he was in the hospital recovering from injuries he suffered as a result of a one-car collision in which he was involved on the same day as the rape and murder in this case occurred.

The police interviewed the petitioner at the hospital twice — once on the afternoon of the day of the accident, and then a second time two days later. Both times he was given Miranda warnings and waived his Miranda rights.

1. But, the petitioner contended, he didn’t knowingly and intelligently waive his Miranda rights during the second interview because he was on morphine at the time of the interview. The Oklahoma Court of Criminal Appeals rejected this contention on direct appeal, observing that the petitioner “appeared to understand all questions asked and gave appropriate responses to the questions posed. The specificity of detail Davis was able to provide and the back and forth nature of the interview demonstrated that he was fully alert and comprehended what others said to him, thereby supplying strong evidence that he understood his rights as presented to him as well.” In postconviction proceedings the petitioner presented an affidavit from a doctor to support his theory that morphine interfered with his ability to understand his Mirandarights. But the Tenth Circuit characterized this affidavit as “hardly definitive” because it “merely states that there was a possibility of impairment.” Moreover, the petitioner was able to ask probing questions when the officers asked him to give a buccal swab sample. Thus the state courts did not unreasonably conclude that the petitioner had knowingly waived his Miranda rights.

2. Nor were his statements coerced because the officers called him a “cold-blooded killer” during the interview. “Defendant cites no Supreme Court authority suggesting that it is coercive to tell a suspect truthfully that the evidence would imply that he was guilty of a heinous crime unless he gives an explanation.” Thus the district court correctly denied relief on this claim.

3. Trial counsel was not ineffective for failing to present medical evidence of impairment in order to establish at a pretrial hearing that the Miranda waiver wasn’t knowing or intelligent. Relying on the postconviction affidavit, the Oklahoma Court of Criminal Appeals held that the petitioner suffered no prejudice under Strickland because the affidavit merely raised a possibility of impairment. The Tenth Circuit held that the OCCA’s conclusion regarding Strickland prejudice was not unreasonable. Nor could the court remand for an evidentiary hearing, because the claim had been adjudicated on the merits in state court and a federal court could not review any new evidence in connection with the claim. See Cullen v. Pinholster, 131 S. Ct. 1388 (2011); Black v. Workman, 682 F.3d 880, 895 (10th Cir. 2012).

4. The court certified for appeal an additional claim — that the petitioner’s statements were coerced because the interviewing detectives would not allow the petitioner to have pain medication until he completed his interviews. The court observed that the petitioner did not request a COA until his reply brief on appeal, thus depriving the state of an opportunity to brief the claim. But because the claim was meritless, the state suffered no prejudice from the lack of opportunity to address the claim.

5. And the court had to clear away two procedural issues before reaching the merits. First, the OCCA invoked a res judicata procedural bar when it addressed this claim in postconviction proceedings. A res judicata procedural bar does not support federal procedural default. See Cone v. Bell, 129 S. Ct. 1769 (2009). But the OCCA did not address actually this claim in direct appeal proceedings, meaning that the claim had not been adjudicated on the merits, and thus federal review was de novo.

6. On the merits, the court derided the claim as “flawed on many levels” and “conceptually confusing, almost incoherent.” There was scant evidence in the record to support the assertion that the detectives were withholding pain medication — just two statements on cross-examination during a pretrial hearing in which the petitioner said he “had to be submissive” while in the hospital. Moreover, “Ordinarily, when one thinks of a coerced confession, one thinks of law-enforcement officers telling the suspect that he must confess, or else.” But there was no specific evidence of this particular kind of threat in the record. Thus his statements were not coerced in this way, and trial counsel was not ineffective for failing to so argue.

7. Moreover, the petitioner forfeited his opportunity to ask for an evidentiary hearing on this claim by failing to ask for one in district court in such a way as to alert the court about what evidence would be
received. See United States v. Cervini, 379 F.3d 987 (10th Cir. 2004).

The court also denied a COA on a number of additional claims.

8. There was no constitutional violation from the prosecution calling a rebuttal witness that it had not previously noticed. There was no federal due process right based on the state-law procedural right to notice. See Elliott v. Martinez, 675 F.3d 1241 (10th Cir. 2012). And calling the witness did not make the trial fundamentally unfair.

9. The state courts did not unreasonably conclude that the evidence was sufficient to support the murder conviction, because review of such a claim had to encompass even the evidence that the petitioner asserted was inadmissible (here, the statements during the hospital interviews). See Lockhart v. Nelson, 488 U.S. 33 (1988).

10. No clearly established federal law required the trial judge to instruct the jury that convictions based on circumstantial evidence must exclude every reasonable hypothesis except that of guilt.

11. The state courts did not unreasonably deny the petitioner the ability to present evidence to the jury regarding an affair that the victim’s husband was having, because the evidence was marginally relevant at best.

12. And of course there was no cumulative error.