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Ervin v. Bowersox

United States Court of Appeals, Eighth Circuit

June 13, 2018

Jonathan T. Ervin Petitioner - Appellant
v.
Michael Bowersox, Warden Respondent - Appellee

          Submitted: March 15, 2018

          Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.

          WOLLMAN, CIRCUIT JUDGE.

         Jonathan T. Ervin was convicted of statutory sodomy and sentenced to 30 years' imprisonment. He appeals the district court's[1] denial of his petition for habeas corpus under 28 U.S.C. § 2254(d), arguing that his Fifth Amendment right against self-incrimination was violated when the state trial court admitted into evidence a video of him invoking his post-Miranda right to silence. We affirm.

         I. Background

         In June 2010, Ervin was sixteen and living at the home of his grandfather. On June 4, 2010, Ervin's half-brothers, five-year-old T.L.E. and twenty-month-old J.M.E., were dropped off by their mother so that Ervin and his grandfather could watch the boys while she attended school. Prior to dropping the boys off, their mother had changed J.M.E.'s diaper, but did not notice anything unusual.

         Ervin's grandfather and T.L.E. went outside to work, leaving Ervin and J.M.E. alone in the house. T.L.E. came inside and found Ervin and J.M.E. in the kitchen. J.M.E. was not wearing a diaper and had blood running down his leg.

         J.M.E. and T.L.E.'s mother called to check on the boys. When T.L.E. answered the phone, she could hear J.M.E. screaming in the background. Ervin also spoke to her and told her that J.M.E. was being fussy. Upon arriving to pick up the boys, she asked how the boys had behaved, and Ervin told her that J.M.E. had "pooped all over him."

         After arriving home, J.M.E.'s mother noticed that he had blood on his foot. J.M.E.'s father had also left her a voicemail telling her that he had spoken to Ervin, who had said that J.M.E. had a bump on his bottom that they might want to look at. J.M.E.'s mother checked his diaper and saw that J.M.E. "had stuff dangling from his bottom. It looked like he had been ripped open from the inside out and he had blood all over his diaper."

         J.M.E.'s mother took him to the emergency room, after which he was transferred to the children's hospital for treatment. J.M.E. had bruising and swelling around his rectal area. An endoscopy also showed that J.M.E. had mucosal fissures in the lining of his anus. A physician who specializes in child abuse and malnutrition examined J.M.E. and concluded that his "injuries were consistent with or indicative of penetrating anal trauma."

         Ervin was interviewed that same day by Detective Brandin Caid, an investigator with the sheriff's department. We recite the facts of the interview as set forth in the Missouri Court of Appeals opinion. Detective Caid read Ervin his Miranda rights, which Ervin voluntarily waived. Caid asked Ervin about his interactions with J.M.E. that day. Caid explained J.M.E.'s injuries to Ervin, and Ervin initially answered Caid's questions. When Caid asked if Ervin knew how J.M.E. was injured, Ervin did not respond. Caid repeated his question, to which Ervin replied, "That's what this whole thing is about?" Detective Caid explained to Ervin that they were trying to figure out how J.M.E. sustained his injuries. Ervin paused and then stated that he did not want to talk anymore. The interview thereafter ended.

         Charges were brought against Ervin in Missouri state court. Ervin filed a motion in limine to preclude the playing of the portion of his video interview in which he remained silent and invoked his Miranda rights. The trial court denied the motion. During its opening statement, the state referred to the interview, stating in relevant part:

Detective Caid is explaining the injury that [J.M.E.] has at this point to [Ervin] during the interview, and he tells him, I want to know how these injuries happened to [J.M.E.]. [Ervin] stops, looks at the detective for ...

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