Jonathan T. Ervin Petitioner - Appellant
Michael Bowersox, Warden Respondent - Appellee
Submitted: March 15, 2018
from United States District Court for the Eastern District of
Missouri - St. Louis
WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.
WOLLMAN, CIRCUIT JUDGE.
T. Ervin was convicted of statutory sodomy and sentenced to
30 years' imprisonment. He appeals the district
court's 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
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.
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.
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."
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."
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."
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.
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 ...