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Davis v. Grandlienard

United States Court of Appeals, Eighth Circuit

July 7, 2016

Jerome Emmanuel Davis, Petitioner-Appellant
v.
Warden Kent Grandlienard, Respondent-Appellee

          Submitted: February 9, 2016

         Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before SHEPHERD, BEAM, and KELLY, Circuit Judges.

          SHEPHERD, Circuit Judge.

         Jerome Davis was convicted in the Hennepin County, Minnesota District Court of aiding and abetting first-degree felony murder and sentenced to life in prison. In his direct appeal to the Minnesota Supreme Court, Davis claimed, inter alia, that the state trial court erred when it admitted a statement he made to police while in custody because the police violated his Fifth Amendment right to remain silent. The Minnesota Supreme Court concluded that any error committed by the trial court was harmless beyond a reasonable doubt. Davis filed a petition for writ of habeas corpus in federal court, challenging the Minnesota Supreme Court's determination that admission of his statement to police was harmless error. The district court[1] adopted the report and recommendations of the magistrate judge[2] and denied Davis's Miranda[3]claim. Davis timely appealed. Having jurisdiction under 28 U.S.C. § 1291, we now affirm.

         I.

         On the evening of May 11, 2007, Minneapolis police officers responded to a 911 call reporting gunshots and found Armando Calix, shot in the neck and bleeding in front of his apartment building. Calix bled to death, and the medical examiner pronounced him dead at the scene. Officers searched the apartment for other victims or suspects but found no one else at the scene. Forensic officers examined the apartment, gathered evidence, and took DNA samples. Inside the apartment, officers found a bullet hole in a window, bullet fragments near the window, and a knife with Calix's blood on it. Officers initially questioned two bystanders who reported they had observed two men running away from the building, but did not follow up with the bystanders.

         Police investigators also contacted the 911 caller, Brinett Beckford, who had been visiting family in a building across an alley from Calix's apartment building. Beckford reported that he looked out a window shortly before the shooting and saw two young men crossing the alley. The two men passed through a gap in a fence then entered an apartment building. Beckford did not know their names but claimed he recognized them because he had seen them on prior occasions in the same area. He described the height, weight, complexion, and hair style of each man. Beckford also told investigators he observed one of the men, later identified as Davis, hit his hip on a metal fencepost as he moved through the fence gap, then put his hand on his hip, hold his side, and pull in his stomach to pass through the gap. Shortly thereafter, just past 8:00 p.m., Beckford drove through the alley to leave the building and heard what sounded to him like a gunshot. Beckford immediately called 911. At a later date, Beckford met with police to perform a photo lineup and identified Toriano Dorman as the taller, dark-skinned man from the alley, and Davis as the shorter, light-skinned man.

         Investigators discovered Calix last received a phone call at 8:01 p.m. on the night of the shooting. Further investigation of the phone number that called Calix led police to Dorman, and an investigation of Dorman's associates led police to Davis. Police obtained several phone numbers used by Davis and asked the county jail to search for calls made by inmates to one of those phone numbers. Four phone calls between inmate Anthony Whigham and a man believed to be Davis were discovered. The man, who investigators believed to be Davis, told Whigham during the first recorded phone call, on the day before the shooting, that he was "about to rob somebody" and that a white woman was attempting to set up a "lick" for him. If the "lick" went well, the man would receive $10, 000, $1, 500 of which he would give Whigham to hire a lawyer. Whigham asked the man for the phone number of Jovan Gentle, and the man responded with two phone numbers.

         The day after the shooting, a second call took place, during which the man told Whigham "it's all bad." Whigham asked, "something went down?" to which the man replied, "yeah." "Is it what I think it is?" asked Whigham. The man responded, "I think so." During the third call, placed two days after the shooting, the man told Whigham he "had to do some business shit, " adding "it ain't go as smoothly as I wanted it to go" and "[s]omebody had to go and it wasn't me." Whigham asked the man if he received "something out of the situation, " and the man said "yep, " and that he needed to turn it into money. During the last call, the man mentioned to Whigham that the news covered his "situation" and provided Whigham a new phone number to call. The new number was a land line connected to an apartment in St. Paul, Minnesota. On the same day, police obtained a search warrant for that St. Paul apartment, and upon searching, found seven cell phones, including one with a phone number matching that called by Whigham from the county jail.

         Gentle later met with police and provided a statement containing the following information. Gentle contacted Davis on the afternoon of May 11, 2007, the day of the shooting, regarding a wristwatch. The two men met that afternoon. According to Gentle, Davis drove a four-door blue Caprice with two passengers, one of whom was Dorman. During an argument between Gentle and Davis about the wristwatch, Dorman exited Davis's car "clenching" a revolver, but Davis ordered Dorman to go back inside the car. Gentle and Davis parted ways after the argument, but later in the day, Gentle received a phone call from Davis asking him to meet again and help with a robbery. Gentle initially indicated he would help, but changed his mind and stayed home. Davis later came to Gentle's house, where Gentle claimed Davis told him that "he hit the lick on a Mexican" and showed him a laundry tub containing fifteen to twenty pounds of marijuana. Gentle told police that Davis confessed to shooting a Mexican man "one time in the chest, " then taking the marijuana and running out of the room with Dorman. Davis also showed Gentle two handguns. Gentle then claimed he and Davis drove separately to buy baggies to package the marijuana, and while driving on a bridge over a river, he saw Davis throw something out of his car window. According to Gentle, Davis later admitted to him that the objects he threw out of the window were the handguns. Separate from Gentle's statement, cell phone records verified that Dorman was in contact with both Davis and Calix on the day of the shooting. The last phone call from Dorman to Calix, at 8:01 p.m., was routed through a cell tower only a few blocks from Calix's apartment building.

         Police arrested Davis for his involvement in an unrelated assault one week after the shooting. Davis called Gentle from jail several times, speaking in "code" and asking for money so that he could post bail before the homicide detectives figured "out what was going on." Davis was placed in an interview room with concealed audio and video recording equipment, where Sergeant Karakostas, a homicide investigator, interviewed him. Karakostas, who held a hand-held recorder, informed Davis of his Miranda rights and began to interview him about his whereabouts on the night of the shooting. Davis initially claimed he had been home in St. Paul the entire day. Karakostas continued questioning about the day of the shooting, prompting Davis to worry aloud whether he was being questioned solely about the assault. Karakostas told Davis that his name had "come up in something else too." When Davis asked whether he could go home after the interrogation, Karakostas replied in the negative, explaining that he was going to jail for the assault and that he was "getting [himself] kind of jammed up on something" else. Davis became visibly agitated and said, "I don't know about nothing that's going on." He repeatedly stated that he wanted to simply go to jail for the assault and told Karakostas, "I don't want to talk. I don't want to talk." Karakostas told Davis that whether he wanted to talk was a personal decision, but that he probably should talk to the police. Davis replied that he did not want to go to jail because he did not do anything wrong.

         Karakostas continued his inquiry regarding Calix's death and implied that Davis had been identified. Davis again requested that Karakostas take him to jail for the assault: "take me to jail . . . I don't, you can cut that off, I don't have nothing to say. 'Cause I ain't done nothing. I didn't assault nobody . . . I don't know nothing about that." Karakostas indicated the interview could end at that time if Davis wanted it to end, to which Davis again stated "I don't want to talk." Karakostas handed a business card to Davis and encouraged him to call if he changed his mind. Davis noted from the business card that Karakostas was with the homicide division and asked, "homicide unit . . . you got me in a homicide?" Karakostas asked Davis if he wanted to continue talking. Davis responded by asking questions about why he was going to jail that day. Karakostas disclosed more information about the police department's knowledge of Davis's involvement in Calix's shooting. Davis then said, "[m]y rights says anything I say can and will be used against me in the court of law. So if I tell you the truth or anything is it gonna be used against me in a court of law, so I don't . . . so what's my point of talking to you? I might as well talk to a lawyer, someone who can help me." Karakostas clarified that Davis did, in fact, want an attorney present for questioning and suspended the interrogation.

         Davis asked if Karakostas would bring him water. When Karakostas returned a few minutes later with the water, he told Davis it "shouldn't be too much longer" until an attorney arrived for Davis. Davis made hand motions indicating Karakostas should remain in the room and asked him to close the door. He asked Karakostas if he could go home if he revealed what he knew about the shooting. Karakostas informed Davis that he would have to read Davis his Miranda rights again before they could resume their conversation, and that he could not promise Davis would be able to go home. Karakostas reassured Davis that if he was not involved in the shooting, he would recommend a bond on the assault charge. Karakostas answered more of Davis's questions and read his Miranda rights again. Then, he asked Davis to tell his version of events from May 11, 2007 after Davis indicated he understood his rights and wanted to talk. Karakostas also agreed to turn off his hand-held recorder but did not alert Davis to the concealed recording equipment in the room.

         In his statement recorded by the audio and video equipment in the interview room, Davis admitted to Karakostas that he was inside Calix's apartment during the shooting but denied involvement in the murder or robbery, consistently claiming that he was "in the wrong place at the wrong time." Dorman planned to go to Calix's apartment to buy marijuana and Davis agreed to go with him. Davis averred that "three Mexicans" were in the apartment. While Dorman spoke with Calix, Davis watched TV on a couch with one of the other men. Suddenly, Davis saw Dorman pull out a gun. Davis ran and hid in a closet with one of the other men, then heard a gun shot. He peeked out of the closet and saw ...


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