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Charleston v. Gilmore

United States District Court, E.D. Pennsylvania

March 29, 2018

BRANDON CHARLESTON, Petitioner,
v.
ROBERT D. GILMORE, Superintendent at SCI-Greene;[1] THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; THE DISTRICT ATTORNEY OF PHILADELPHIA COUNTY, Respondents.

          OPINION, REPORT AND RECOMMENDATION, ECF NO. 21 - ADOPTED IN PART

          JOSEPH F. LEESON, JR. UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Brandon Charleston has filed a counseled Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is challenging his August 2009 conviction for murder in the first degree and possession of an instrument of crime, following a trial by jury before the Honorable George W. Overton in the Court of Common Pleas of Philadelphia County. ECF No. 1. The charges arose from the June 15, 2008 shooting death of William Stanton inside the residence located at 2428 North 25th Street in Philadelphia. In September 2009, Judge Overton sentenced Charleston to life imprisonment for the murder and a concurrent term of 3 to 24 months' imprisonment for the weapons offense.

         Upon review of Charleston's Petition, United States Magistrate Elizabeth T. Hey issued a Report and Recommendation (R&R) recommending that the Petition be denied. ECF No. 21. Charleston timely filed objections to the R&R. ECF No. 24. After de novo review and for the reasons set forth below, the R&R is adopted in part and the Petition is denied.

         II. Factual and Procedural History

         The Court adopts the factual and procedural history as summarized by Magistrate Judge Hey in the R&R, as there are no objections to this portion of the R&R.

         III. Standard of Review

         When objections to a report and recommendation have been filed under 28 U.S.C. § 636(b)(1)(C), the district court must make a de novo review of those portions of the report to which specific objections are made. Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989); Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984) (“providing a complete de novo determination where only a general objection to the report is offered would undermine the efficiency the magistrate system was meant to contribute to the judicial process”). “District Courts, however, are not required to make any separate findings or conclusions when reviewing a Magistrate Judge's recommendation de novo under 28 U.S.C. § 636(b).” Hill v. Barnacle, 655 Fed.Appx.. 142, 147 (3d Cir. 2016). The district court “may accept, reject, or modify, in whole or in part, the findings and recommendations” contained in the report. 28 U.S.C. § 636(b)(1)(C) (2009).

         IV. Analysis

         Charleston's Petition presents five claims for relief. First, he contends that the Pennsylvania courts acted contrary to clearly established federal law, under Miranda[2], in allowing the admission at trial of a statement he made to a detective while in custody. Second, he contends that the admission of evidence of his tattoo deprived him of a fundamentally fair trial. Charleston's third, fourth, and fifth claims each assert the ineffective assistance of trial counsel. Specifically, he claims he was deprived of effective assistance of counsel when his counsel (1) failed to request a proper instruction to the jury regarding the hearsay testimony of a witness; (2) failed to object when, in the course of the trial judge's closing instructions to the jury, the judge advised the jury that Charleston's “reputation for telling the truth is bad”; and (3) failed to ask that the jury be instructed as to the possible verdict of involuntary manslaughter.

         The Magistrate Judge, in her R&R, recommended denying relief on each of these five claims. Charleston's Statement of Objections to the R&R presents five objections, or sets of objections, to the Magistrate Judge's analysis of each claim. The Court addresses Charleston's objections in turn. As explained below, although the Court agrees with the Magistrate Judge that Charleston is not entitled to relief on any of the five grounds presented in his Petition, the Court departs from the R&R's analysis in some respects and, accordingly, adopts the R&R in part.

         A. Objection One, concerning the admission of Charleston's statement, is overruled.

         i. Introduction

         Charleston's first objection to the R&R concerns the admissibility of a statement he made to Homicide Detective Greg Singleton. As explained in detail below, Charleston was taken into police custody the evening of July 16, 2009, and was questioned by Detective Singleton the following morning. After obtaining some biographical information from Charleston, the detective asked Charleston about the circumstances of Stanton's death, and Charleston “described his involvement in the incident.” The detective then provided the Miranda warnings to Charleston and took a formal statement from him, which the detective transcribed.

         In a pretrial motion, Charleston moved to suppress his formal post-warning statement, [3]arguing that it was coerced in violation of Miranda. After a suppression hearing, the motion was denied, and the post-warning statement was read into the record during the trial. The Pennsylvania Superior Court affirmed the trial court's ruling that the statement was admissible.

         In his present Petition, Charleston contends that Detective Singleton deliberately withheld the Miranda warnings until after he had obtained a confession (i.e., the initial, pre-warning statement) and that the formal, post-warning statement was therefore inadmissible under the rule established by the United States Supreme Court in the case of Missouri v. Seibert, 542 U.S. 600 (2004). The Magistrate Judge, in the R&R, found that Charleston's statement was admissible under Seibert and that Charleston was not entitled to relief on this claim. Charleston objects to this analysis and contends that Seibert, properly understood, renders his formal, post-warning statement inadmissible.

         ii. Factual and procedural background

         The factual background of Charleston's statement is as follows. Around 9:00 p.m. on July 16, 2008, approximately one month after William Stanton's death, Philadelphia Police Officer Anthony Soliman and his partner, responding to a 911 call concerning the presence of a homicide suspect in the area, drove to 25th and Hagert Streets, where they encountered Charleston, who matched the description of the suspect. Suppression Hearing, N.T., Aug. 17, 2009, at 8-34 (hereinafter “Suppr. N.T.”). The officers told Charleston that they needed to ask him some questions but that he was not under arrest, and they asked him to sit in their police car. Id. at 10, 30. Charleston agreed to do so. Id. at 10, 30. While Charleston was sitting in the car, Clara Stanton, the mother of the victim, approached the officers and told them that she was the one who had called 911 and that Charleston had murdered her son, William Stanton. Id. at 12-13. Officer Soliman asked Charleston what he knew about William Stanton, and Charleston stated that he knew nothing. Id. at 14, 39, 43-44. Officer Soliman then called the Homicide Unit, and Detective Singleton, who had been investigating the Stanton murder, told Officer Soliman to handcuff Charleston and bring him to the station. Id. at 14, 80; Trial N.T., Aug. 24, at 5-12.[4]Officer Soliman told Charleston that some detectives wanted to talk to him, and the officers brought Charleston to the Homicide Unit of the police station, where they arrived at about 9:35 p.m. Suppr. N.T. at 33, 36.

         After Charleston was brought to the station, Officer Soliman, along with Detective Singleton, took Charleston into an “interview room.” Id. at 35, 52, 79. Officer Soliman did not know if the door was locked, but both Officer Soliman and Detective Singleton acknowledged that Charleston was not free to leave at that point. Id. at 35, 80.

         Detective Singleton testified that after he helped place Charleston in the interview room that evening, he briefly spoke with Charleston but declined to interview him at that time because he appeared to be “under the influence of either alcohol or some narcotics substance.” Id. at 51-53. Detective Singleton did not mention to Charleston anything about the Stanton killing. Id. at 54. The detective left Charleston alone in the room at about 10:00 p.m. and did not see him again until 10:00 a.m. the next morning. Id. at 78-79, 88.

         At 10:00 a.m. the next morning, Detective Singleton, along with another detective, returned to the interview room where Charleston had been placed. Detective Singleton observed that Charleston “appeared to be sober and more coherent, ” and he gave him a cheese sandwich and water. Id. at 54, 90. He began asking Charleston biographical questions in order to fill out a biographical form. Id. at 54. Charleston was cooperative in answering these questions. Id. at 55. After Detective Singleton completed the biographical form, he “asked [Charleston] about the circumstances surrounding the murder of William Stanton, and [Charleston] explained in some detail what occurred in the house.” Id. at 56. Detective Singleton testified that when he first started speaking to Charleston about the incident, Charleston “was immediately receptive.” Id. at 71.[5]

         Detective Singleton testified that, after Charleston explained what occurred in the house, “[a]t some point, I stopped [Charleston] and read him his rights and prepared the memorandum form for . . . the sheets, the warnings for his rights, and he signed off on them.” Id. at 56.[6]Specifically, Detective Singleton used a “75-331 form, ” which “reflects the warnings and the information on who's being interviewed, the date, time, location, who's interviewing and who's present at the time of the interview.” Id. at 57. Detective Singleton testified that, as reflected on the form, he read a series of warnings to Charleston concerning his rights to remain silent and to have an attorney, and Charleston provided his signature or initials under each warning, signifying that he understood his rights. Id. at 57-60.

         Detective Singleton testified that he provided the Miranda warnings to Charleston at approximately 10:20 a.m. See Trial N.T., Aug. 21, at 160.[7] After Charleston signed the forms waiving his Miranda rights, Detective Singleton “then proceeded to take a statement from [Charleston], a formal statement.” Suppr. N.T. at 56. In so doing, Detective Singleton asked Charleston a series of questions about the shooting, and the detective transcribed the questions and answers onto the above-mentioned 75-331 form, after which Charleston reviewed and signed the form, as well a “statement adoption attestation form.” Id. at 56-70. The interview was completed at 12:20 p.m. Id. at 69. Detective Singleton testified that Charleston “seemed very cooperative and eager to tell his portion of the story” during the course of making his statement. Id. at 70. The interview was completed at 12:20 p.m., about two hours and twenty minutes after it had begun. Id. Later that day, Charleston was formally arrested for Stanton's murder. Id. at 71.

         In Charleston's formal statement, which Detective Singleton read into the record during the suppression hearing and at trial, Charleston stated that on June 15, the day of the shooting, he and Stanton were standing outside on the street “talking about the Xanies” (Xanax pills) that Charleston wanted to buy from Stanton, when they decided to enter the residence on 2428 North 25th Street to conduct the transaction. Id. at 62, 65, 66. After they entered the residence, they began to argue about the pills, at which point, according to Charleston's statement, “[Stanton] pulled out the gun and I started rustling with him over the gun. While I was rustling with him, the gun went off about three times. I took the gun and left the house threw it into the sewer right on the corner of [25th] Street.” Id. at 63. Charleston stated that the gun was “in both of our hands” when the shots were fired. Id. He added that “[i]t was self-defense” and “[i]t's not like I pointed it at him and shot him or nothing like that.” Id. at 69.

         Before trial, Charleston moved to suppress his formal, post-warning statement, arguing that, among other things, he was subjected to coercive conditions when he was kept in the interview room overnight. Id. at 105. The trial judge held a suppression hearing, at the conclusion of which he denied the motion, finding that the Miranda warnings were properly given, that there was “no evidence of coercion, ” and that, on the contrary, there was evidence of a lack of coercion, “given the provisions of food and the ability to sleep to ward off the effects of substances which caused the intoxication.” Id. at 115-19.

         On direct appeal, the Pennsylvania Superior Court affirmed the trial court's denial of Charleston's motion to suppress his statement. See Com. v. Charleston, 16 A.3d 505 (Pa. Super. Ct. 2011), abrogated on other grounds by In re L.J., 79 A.3d 1073 (Pa. 2013). In his present Petition, Charleston contends that the Pennsylvania courts' determination that his statement was admissible at trial was contrary to clearly established federal law, particularly as set forth by the United States Supreme Court in the case of Missouri v. Seibert, 542 U.S. 600 (2004).[8]

         iii. United States Supreme Court case law on “two-step interrogations”

         The interrogation at issue in this case is an example of what is known as a “two-step interrogation” (or “two-stage interview” or “question-first procedure”), in which officers first elicit a custodial statement without providing Miranda warnings and then, after providing the warnings, elicit a second statement. In this case, as detailed above, Detective Singleton initially elicited a statement from Charleston about his involvement in the Stanton murder and then, after obtaining this initial statement, read Charleston his Miranda rights and obtained a formal statement, which the detective transcribed and which was introduced at trial. In cases involving two-step interrogations, generally the initial, pre-warning statement is clearly inadmissible. Here, as noted above, there was no attempt to introduce Charleston's initial statement at trial. But often a contested issue in such cases, as here, is whether the second, post-warning statement is admissible. As the Magistrate Judge observed, an overview of the relevant United States Supreme Court case law on this issue is helpful in order to understand the parties' arguments concerning what constitutes “clearly established Federal law” in this area.

         Two-step interrogations were first specifically addressed by the Supreme Court in the case of Oregon v. Elstad, 470 U.S. 298 (1985), in which an officer inadvertently elicited a custodial statement prior to administering Miranda warnings and then, after providing the warnings, obtained a more complete statement. Reversing the state court's determination that the second statement must be suppressed, the Supreme Court held that “absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion” with respect to the second statement. Id. at 314. Rather, “[t]he relevant inquiry is whether, in fact, the second statement was also voluntarily made” and, “[a]s 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.” Id. at 318. The Court held that “[a] subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.” Id. at 314.

         Nearly twenty years later, in Missouri v. Seibert, 542 U.S. 600 (2004), the Supreme Court again confronted a two-step interrogation, but under a very different set of facts. Whereas the initial interrogation in Elstad had been brief and inadvertent, the technique used in Seibert revealed a police strategy that was, by the officers' own admission, “adapted to undermine the Miranda warnings” and included pre-warning questioning that was “systematic, exhaustive, and managed with psychological skill.” See Id. at 616 (2004) (plurality). Although a majority of the Court determined that the suspect's post-warning statements in Seibert must be suppressed, the Justices were unable to agree on a majority opinion. Rather, the result in Seibert included a plurality opinion authored by Justice Souter, in which three other Justices joined; a concurrence by Justice Breyer, who joined the plurality opinion but wrote separately to articulate his own test; and an opinion by Justice Kennedy concurring in the judgment only. The four remaining Justices dissented.

         Justice Souter's plurality opinion in Seibert concluded that the admissibility of statements made after a two-step interrogation depends on “whether Miranda warnings delivered midstream could be effective enough to accomplish their object, ” based on an objective inquiry from the perspective of the suspect, in which the following five factors should be considered:

[1] the completeness and detail of the questions and answers in the first round of interrogation, [2] the overlapping content of the two statements, [3] the timing and setting of the first and the second, [4] the continuity of police personnel, and [5] the degree to which the interrogator's questions treated the second round as continuous with the first.

Id. at 615 (plurality). The plurality opinion noted that “[b]ecause the intent of the officer will rarely be as candidly admitted as it was here . . . the focus is on facts apart from intent that show the question-first tactic at work.” Id. at 617 n.6.[9]

         Justice Kennedy, concurring only in the judgment, wrote that he agreed with the plurality's decision that Seibert's statements must be suppressed and he “agree[d] with much in the careful and convincing opinion for the plurality, ” but he wrote separately to set forth his own approach, which differed from the plurality's approach “in some respects.” Id. at 618 (Kennedy, J., concurring). Justice Kennedy explained that he believed that the plurality's test, which “envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations, . . . cuts too broadly.” Id. at 621-22.

         In particular, Justice Kennedy believed that applying “a multifactor test . . . to every two-stage interrogation” could undermine the clarity of Miranda. Id. at 622. Instead, Justice Kennedy wrote that he “would apply a narrower test applicable only in the infrequent case . . . in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.” Id. In other words, under Justice Kennedy's approach, the court begins by asking whether a “deliberate two-step strategy has been used.” Id. If so, then “postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made.” Id.[10] If, however, a deliberate two-step strategy was not employed, then the court should apply the test previously articulated by the Supreme Court in Elstad, and the question simply would be whether the subsequent statement was voluntary. In sum, for Justice Kennedy, “[w]hen an interrogator uses [a] deliberate, two-step strategy, predicated upon violating Miranda during an extended interview, postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps.” Id. at 621.

         Finally, Justice O'Connor, writing for the four dissenters, rejected the plurality's approach because she believed it gave “insufficient deference to Elstad, ” but she also disagreed with Justice Kennedy's approach, believing that it placed improper weight on the subjective intent of the officer. Id. at 622-29 (O'Connor, J., dissenting).

         Following the Supreme Court's decision in Seibert, a clear majority of Circuit courts have held that Justice Kennedy's concurrence is the controlling opinion in the case. This majority includes the Third Circuit, which held in United States v. Naranjo, 426 F.3d 221 (3d Cir. 2005), that “Justice Kennedy's opinion provides the narrowest rationale for resolving the issues raised by two-step interrogations where Miranda warnings are not administered until after police obtain an inculpatory statement.” Id. at 231-32. But in view of the divided nature of the Seibert decision, a small minority of Circuit courts have indicated that the Seibert case lacks a clear holding. See Reyes v. Lewis, 833 F.3d 1001, 1002 (9th Cir. 2016) (collecting cases).

         iv. The Pennsylvania Superior Court's decision, Charleston's Petition, and the Magistrate Judge's Report and Recommendation

         In upholding the denial of Charleston's pretrial motion to suppress, the Pennsylvania Superior Court closely examined the United States Supreme Court's decisions in Elstad and Seibert. Specifically rejecting the Third Circuit's holding in Naranjo and similar cases from other Circuits, the Superior Court concluded that “Seibert establishes no new binding precedent.” Charleston, 16 A.3d at 525. In this respect, the court stated that it was persuaded by a dissenting opinion authored by the Honorable Marsha S. Berzon of the Ninth Circuit, who reasoned that “while Justice Kennedy's was the crucial fifth vote for the result . . . Justice Kennedy's opinion is not the narrowest opinion embodying a position supported by at least five Justices in the majority” because his intent-based approach was “squarely rejected by seven Justices, ” i.e., the four dissenters as well as three of the four Justices who joined the plurality opinion. Id. at 525 (quoting United States v. Rodriguez-Preciado, 399 F.3d 1118, 1138-40 (9th Cir. 2005) (Berzon, J., dissenting)).[11] The Superior Court concluded that because Seibert did not establish new precedent, the court was required to apply the standard set forth in the Supreme Court's earlier Elstad case. Id.

         Applying that standard, the Superior Court focused on whether Charleston's post-warning statement was knowing and voluntary. The court reviewed Detective Singleton's testimony that he read Charleston his rights, that Charleston was “immediately receptive” and was “very cooperative and eager to give his portion of the story, ” and that Charleston was given something to eat and drink during the interrogation. Id. at 526. “Under these circumstances, ” the court had “no difficulty concluding that [Charleston's] waiver of his rights and the subsequent statement were both knowing and voluntary.” Id.

         Charleston contends that the Superior Court's decision was contrary to clearly established federal law. That is, he contends that Justice Kennedy's concurrence in Seibert is clearly established federal law and that, under that standard, he was entitled to the suppression of his statement. In particular, he contends that the “sequence of interrogation demonstrates that the detectives deliberately withheld Miranda warnings until after obtaining a confession”; in other words, “the initial violation of Miranda was not merely hapless or inadvertent but was clearly the result of an intentional withholding designed to prevent [him] from invoking his rights in order to obtain a confession.” Pet'r's Mem. Supp. 3, 5, ECF No. 9.

         Respondents contend that, despite the Third Circuit's holding in Naranjo, Justice Kennedy's opinion is not clearly established federal law in light of the diversity of approaches that other federal Circuit courts (and state courts) have taken to Seibert. Further, Respondents contend that even if Justice Kennedy's concurrence were clearly established federal law, Charleston would not be entitled to relief, because there is no evidence that Detective Singleton deliberately withheld the Miranda warnings prior to Charleston's initial statement. Finally, Respondents contend that even if the state court's ruling was contrary to clearly established federal law, Charleston cannot show that the admission of his statement “had substantial and injurious effect or influence in determining the jury's verdict, ” under the standard set forth by the United States Supreme Court in Brecht v. Abrahamson, 507 U.S. 619 (1993).[12]

         The Magistrate Judge reviewed the relevant case law in this area, including the Third Circuit's decision in Naranjo, and ultimately concluded that the Court need not decide whether Justice Kennedy's concurrence is clearly established federal law. Rather, the Magistrate Judge agreed with Respondents that, even under Justice Kennedy's approach, Charleston's statement would be admissible because “there is no evidence in the record that Detective Singleton's failure to Mirandize Charleston was purposeful or part of a two-stage technique as in Seibert.” R&R 23. The Magistrate Judge proceeded to review the Superior Court's analysis under Elstad and concluded that the Superior Court's decision was neither contrary to nor an unreasonable application of Elstad, nor did it result in an unreasonable determination of the facts.[13]

         Objecting to the Magistrate Judge's analysis, Charleston contends that “[t]he absence in the record of any specific reason for the omission of Miranda warnings prior to the first stage of interrogation should be held against the Respondent, not the Petitioner, as the Magistrate Judge has apparently concluded.” Pet'r's Statement of Objections 11, ECF No. 24 (hereinafter “Pet'r's Objections”). He argues that there “should be no presumption that the failure to provide warnings was not deliberate, especially in a case where the detective conducts a second interview with full warnings.” Id. at 11-12.

         v. De novo review

         At the outset, this Court acknowledges that the question of whether Justice Kennedy's concurrence is “clearly established Federal law” for the purposes of habeas corpus review is not easy to resolve. As mentioned above, a clear majority of the Circuit Courts-including the Third Circuit-have held that Justice Kennedy's concurrence constitutes the holding in Seibert. Dissenting from this majority, however, one Circuit court has held that Seibert lacks a clear holding, see United States v. Ray, 803 F.3d 244, 272 (6th Cir. 2015) (“[W]e conclude that Seibert did not announce a binding rule of law with respect to the admissibility standard for statements given subsequent to midstream Miranda warnings.”), and a number of other Circuit courts have found the matter to be uncertain, see United States v. Widi, 684 F.3d 216, 221 (1st Cir. 2012) (“[H]ow to read the split decision in Seibert may be an open question.”);[14] United States v. Heron, 564 F.3d 879, 885 (7th Cir. 2009) (“In the case of Seibert, the only thing we know for sure is that at least seven members of the Court rejected an intent-based approach and accepted some kind of exception to Elstad, even if the scope of that exception remains unclear.”);[15]United States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006) (“[A]rguably Justice Kennedy's proposed holding in his concurrence was rejected by a majority of the Court.”).

         Disagreement among the Circuits on a given issue “may be indicative of a lack of clarity in the Supreme Court's jurisprudence.” See Hall v. Zenk, 692 F.3d 793, 799 (7th Cir. 2012). But such disagreement does not necessarily mean that there is an absence of clearly established federal law on that issue. See Dennis v. Secretary, Pennsylvania Department of Corrections, 834 F.3d 263 (3d Cir. 2016) (en banc) (holding that it was clearly established federal law that inadmissible evidence could be the basis for a Brady[16] violation, despite the fact that a minority of Circuit courts had held that only admissible evidence could be the basis for such a violation);[17] see also Williams v. Bitner, 455 F.3d 186, 193 (3d Cir. 2006) (stating, in the context of a qualified immunity analysis, that “[e]ven if our sister circuits had in fact split on the issue, we would not necessarily be prevented from finding that the right was clearly established”); but see Garrus v. Sec'y of Pennsylvania Dep't of Corr., 694 F.3d 394, 416 (3d Cir. 2012) (Hardiman, J., dissenting) (“The existence of a circuit split demonstrates that it is wrong to conclude that fairminded jurists could not disagree on the correctness of the state court's decision in this case.” (internal quotation marks and alterations omitted)); see generally Ruth A. Moyer, Disagreement About Disagreement: The Effect of A Circuit Split or “Other Circuit”Authority on the Availability of Federal Habeas Relief for State Convicts, 82 U. Cin. L. Rev. 831, 847 (2014). Ultimately, however, the Court agrees with the Magistrate Judge that it need not resolve the question of whether Justice Kennedy's concurrence is “clearly established Federal law” because, even under Justice Kennedy's standard, Charleston's formal statement was admissible.

         As set forth above, the threshold question in Justice Kennedy's test is whether a “deliberate two-step strategy has been used” or, in other words, if “the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.”[18] In applying Justice Kennedy's test, courts have “review[ed] the totality of the objective and subjective evidence surrounding the interrogations in order to determine deliberateness.” United States v. Capers, 627 F.3d 470, 479 (2d Cir. 2010); see United States v. Shaird, 463 Fed.Appx. 121, 124 (3d Cir. 2012) (considering “the surrounding circumstances and [the officer's] testimony of his own actions and motivation” to determine deliberateness).[19] Where credible subjective evidence of the officer's intent is available, it will “of course be persuasive, and often decisive.” See United States v. Moore, 670 F.3d 222, 230 n.3 (2d Cir. 2012); Shaird, 463 Fed.Appx. at 124 (“Critically, [the officer] testified that his [pre-warning] conversation with the [defendant] was a deliberate strategy to elicit a confession”). But because such evidence often will be unavailable, ...


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