Writ of Habeas Corpus Procedure per 28 U.S.C. § 2254(d)

Miranda Waivers; Incomplete Admonishments

Confessions and Involuntariness

Federal habeas corpus relief is available only when the federal court finds that a state court’s rulings were either (1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or (2) they were based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. A Miranda admonishment may be upheld despite an interrogator’s failure to include the fact that the suspect is entitled to the assistance of an attorney during the interrogation, depending upon the circumstances.  An involuntary or coerced confession violates a defendant's right to due process under the Fourteenth Amendment and is inadmissible at trial.  A confession is involuntary whenever the defendant’s will was overborne.  Voluntariness is determined by considering the totality of all the surrounding circumstances; both the characteristics of the accused and the details of the interrogation. 

Defendant Alexander Balbuena, age 16, was a member of the Richmond Sur Trece (“RST”) criminal street gang.  RST was having problems with the notorious MS 13 street gang.  On January 16, 2006, MS 13 gang members shot and killed an RST gangster by the name of Luis Ochoa, also known as “Gizmo.” Defendant and other RST gang members were out for revenge.  The next day—January 17th—Jose Segura was sitting in his car with his girlfriend, Oralia Giron, and their two children (ages three years and three months), only two blocks away from the previous day’s murder.  Neither was a gang member although Giron’s two brothers belonged to MS 13. Several men surrounded Segura’s car; one of them telling Segura that they wanted revenge for Gizmo’s murder.  That man then shot into the car, killing Segura and seriously wounding Giron.  (Miraculously, neither child was hit.)  Witnesses told police that defendant and another RST gang member, Julius Stinson (a.k.a; Jujakas), were seen running from the scene into a nearby residence carrying pistols.  Following up on this information eventually led officers to defendant’s apartment where, armed with a search warrant, they found defendant asleep with his pregnant girlfriend.  The murder weapon was also found and impounded.  Defendant was taken to the police station for questioning.  In a 90-minute videotaped interview, defendant eventually (after initial denials) confessed to having been the shooter (see below).  Charged in state court as an adult, and with his videotaped confession being used in evidence against him, defendant was convicted by a jury of the first degree murder of Segura, the attempted murder of Giron, and street terrorism, plus related allegations.  He was sentenced to 82-years-to-life.  Defendant’s conviction was upheld on appeal in an unpublished decision (People v. Balbuena (May 5, 2010) First Appellate District, Division Two, No. A122043), although his sentence was reduced to 72-years-to-life.  The California Supreme Court denied review.  Defendant thereafter filed a petition for writ of habeas corpus in the federal district court, arguing, among other things, that the admission of his confession violated the Fourteenth Amendment’s Due Process Clause in that his statements were obtained in violation of Miranda and by coercion, and were thus involuntary.  The district court denied defendant’s habeas petition (Balbuena v. Biter (N.D. Cal., May 25, 2012) 2012 U.S. Dist. LEXIS 73302.)  He appealed to the Ninth Circuit Court of Appeal.

The Ninth Circuit Court of Appeals affirmed.  The primary issue on appeal from the denial of defendant’s habeas corpus petition was whether his waiver of rights was valid and whether his confession was otherwise the product of coercion by the detectives when they questioned him, and thus involuntary. 

(1) Appellate Procedure:  On such as appeal (sometimes referred to as an “indirect appeal,” as opposed to a “direct appeal” of one’s conviction), it is not a question whether or not the appellate court agrees with the defendant (or, more correctly, the “petitioner”).  Rather, a federal court may only grant habeas corpus relief when it finds that the state court’s ruling was either (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) it was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” (See 28 U.S.C. § 2254(d)(1), (2).)  So the issue on this appeal was whether the federal district court, in denying defendant’s habeas corpus petition, correctly decided that neither of the above two grounds for granting his petition applies. 

(2) The Interrogation:  Prior to being to being questioned, one of the two detectives who questioned defendant read him his Miranda rights, reciting them as follows:  “So, you know you have the right to remain silent anything you say can be used against you in a court, you have the right to an attorney, you have the right to an attorney prior to your questioning if you desire, if you can’t afford to hire one, one will be represented to you free of charge. You understand all those rights? You’re nodding your head like you do, right  Okay, you’re probably curious as to why we're wanting to talk [to] you tonight, is that true? With that in mind, are you willing to talk to us about why we were at your house tonight? Okay ”  Defendant responded; “Yup. Yup.”  In a 90-minute, videotaped interview, defendant initially denied even being at the scene of the shooting.  Attempting to break the ice, the detectives falsely told defendant that they knew he was there because his co-suspect, Stinson (aka, Jujakas), had already been interviewed and he told them that defendant was in fact there.  They further encouraged defendant to speak honestly, telling him that, “it’s important for you to be honest with us so if there is some way to help yourself out, this is the time to do it.” In the process, the detectives also referred to defendant’s impending fatherhood (with his girlfriend being pregnant), describing defendant as “the sixteen year old that’s going to be a father soon.” Another interrogation tactic used was to present defendant with often face-saving alternative scenarios.  For example, the detectives suggested that he might have simply been angry because his best friend had been killed the day before, or that maybe someone like Jujakas forced him to do it, or, perhaps, he simply wasn’t “thinking straight,” or was “upset,” or “that guy aimed the gun at you,” or that “maybe he (was) a gang member” or he was “the guy that killed Gizmo,” or that “it was a spur of the moment type thing,’ etc., etc.  Finally, defendant admitted that he was at the scene of the murder but continued to deny being the shooter.  Needing more, the detectives pressed on with more alternatives such as the possibility that it might be a “justifiable homicide, . . . something you did out of rage and you just weren’t thinking straight . . . .”  When defendant continued to deny being the gunman, the detectives again played on the pending birth of his child:  “[R]emember, we are giving you the opportunity to try to work through this so maybe you can be there for your kid in a few years.”  Still not getting the response they wanted, the detectives falsely told defendant that witnesses saw him shooting a gun; asking him what type of gun he had in that “only one of them hit somebody . . . .[s]o it’s important which one you had.” In response, defendant finally admitted to having a .32-caliber handgun.  More importantly, defendant admitted to seeing two people in the car and that he himself shot at the car’s front window.  At this point in the interrogation, the detectives referred to the possible sentences defendant faced, stating that although he would be tried as an adult, he might receive more lenient treatment if he spoke honestly and showed “remorse.” After these statements, defendant provided the details of the shooting, admitting to being the shooter and that it was in fact in retaliation for Gizmo’s murder the day before. 

(3) Appellate Issues:  The California Court of Appeal upheld the admissibility of defendant’s confession.  First, it found the Miranda admonishment to be sufficient, and not fatally flawed (see below).  Secondly, the California Appellate Court found defendant’s confession to be voluntary and not the product of coercion.  The federal district court, in denying defendant’s habeas corpus petition, held that these rulings were neither (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” nor (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”  The issue for the Ninth Circuit was whether the federal district court was correct in its conclusions. 

(4)  The Ninth Circuit’s Ruling:  Defendant argued that his statements were involuntary based on three factors: (a) his youth, inexperience, and immaturity; (b) the Miranda warnings, which he characterizes as incomplete; and (c) the interrogation tactics that were used.

(4a) Voluntariness:  The rule is simple:  “An involuntary or coerced confession violates a defendant's right to due process under the Fourteenth Amendment and is inadmissible at trial.”  In determining whether a confession is involuntary, a court must ask “whether a defendant’s will was overborne by the circumstances surrounding the giving of a confession” while considering “the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.”  (Dickerson v. United States (2000) 530 U.S. 428, 433-434.)  Under “characteristics of the accused,” courts include the suspect’s age, education, and intelligence as well as his prior experience with law enforcement.  The “details of the interrogation” include its length and location, and whether the suspect was advised of his Miranda rights.  With these standards in mind, the Court first noted that merely telling a suspect to speak truthfully does not generally amount to police coercion.  But it’s also important that defendant was only 16 years of age (as noted above), and had no prior criminal history.  And while confessions coming from teenagers are to be viewed with “special caution” (Doody v. Ryan (9th Cir. 2011) 649 F.3d 986, 1011.), “(e)ven in the case of a juvenile, . . . indicating that a cooperative attitude would benefit the accused does not render a confession involuntary unless such remarks rise to the level of being ‘threatening or coercive.’” Given special emphasis in this case is the fact that the appellate courts all had access to a videotape of the interrogation—so that the courts were not limited to “a cold record, or limited to reliance on the detectives’ testimony”—finding the video to be “dispositive in this case.”  Viewing the video, California’s Appellate Court ruled that, “(w)hile [defendant] was a minor without criminal history, he was hardly a ‘child’ as characterized in his briefs: He was 16 years old, arrested in bed with his pregnant girlfriend, and well versed in the gang activities in his neighborhood. The atmosphere of the hour and a half long interview (which included periods when he was left in the interview room by himself) was not overly harsh or threatening, and [his] demeanor throughout was relaxed and displayed no intimidation or fear.”  Under these circumstances, the Ninth Circuit found that the state’s conclusion that defendant’s confession was voluntary “was not an unreasonable application of the law.” 

(4b) The Adequacy of the Miranda warning:  When read his Miranda rights, defendant was told that, “you have the right to an attorney prior to your questioning if you desire, . . .”  At no time was he told that he also had the right to the assistance of counsel “during” the interrogation.  Defendant referenced the Court to two older Ninth Circuit cases to the effect that this is an incomplete admonishment and makes for an invalid Miranda waiver.  (United States v. Noti (9th Cir. 1984) 731 F.2nd 610, 615, and United States v. Bland (1990) 908 F.2nd 471, 473-474.)  However, the Court here noted that the U.S. Supreme Court has never specifically ruled on this issue.  Instead, hinting at a rule to the contrary, the Supreme Court has held several times that that Miranda warnings “need not be given in the exact form described in that decision.”  (See Duckworth v. Eagan (1989) 492 U.S. 195, 202; and Florida v. Powell (2010) 559 U.S. 50, 60.)  As such, Noti and Bland’s rulings that it is necessary to advice a suspect that his right to counsel includes both before and during an interrogation does not represent “clearly established Federal law.”  California, therefore, cannot be faulted for not following those two cases. 

(4c)  The Interrogation Tactics Used:  Defendant argued that the interrogation tactics used by the detectives caused an involuntary confession.  On appeal, defendant did not raise the issue of the detectives’ telling him facts that were not true (i.e., that his co-suspect said he was present at the scene of the shooting and that others said they observed him shooting a gun at the car).  So the Court did not directly address this issue.  However, the rule is that the use of deceptions (i.e., a “ruse” or a “subterfuge”) in an interrogation are generally lawful so long as they were not the kind of deception that would be reasonably likely to procure an untrue statement.  So that was a non-issue.  Defendant did object, however, to the use of alternate scenarios, implied offers of leniency, and references to his unborn child.  Depending upon the circumstances, any one of these tactics might contribute to a finding that a resulting confession was coerced.  However, in this case, other than the fact that defendant was still very young at the time, there was no evidence that defendant had a limited IQ or that he was “easily confused” or “highly suggestible and easy to manipulate.” Per the Court, contrary to defendant’s arguments that the detectives “overbore his will,” the video recording showed that the tone of the interview was non-threatening.  Defendant was calm throughout, spoke easily with the detectives, and showed no indication of fear or intimidation.  When his unborn child was mentioned, defendant showed no reaction.  The interview lasted only ninety minutes, including breaks and an approximately thirty-minute period when defendant was left alone in the room. The same two detectives (as opposed to multiple officers) conducted the interview without defendant being subjected to “tag team” (“good cop-bad cop”) questioning.  Throughout the questioning, defendant appeared to be relaxed, yawning at times while leaning on the table.  In all, the record (including the videotape) supports the state court’s conclusion that defendant voluntarily confessed.  (5) Conclusion:  The state court’s voluntariness determination was not contrary to, nor an unreasonable application of, federal law.  As such, the Court held that the district court’s denial of defendant’s writ of habeas corpus petition was proper.

On the issue of failing to advise a suspect of his right to the assistance of an attorney “during” questioning, there is California authority discussing this issue; i.e., People v. Lujan (2001) 92 Cal.App.4th 1389.  Per the Lujan Court, we can probably get away with failing to tell the suspect of his right to the assistance of an attorney during questioning (referencing People v. Wash (1993) 6 Cal.4th 215, 236-237.), or that he can have an attorney before questioning (see People v. Kelly (1990) 51 Cal.3rd 931, 947-949.), but telling him only that he has a right to the assistance of an attorney without specifying at least one of the two—“before” or “during”—is legally insufficient.  But this should never be an issue.  I can only guess that the detective in this case was winging it, reciting to defendant his Miranda rights from memory.  I don’t care how good a memory you might have; it’s always better to read the rights to the suspect from a form or a card.  Winging it from memory may be impressive to those who are watching you and your supervisors, but this practice unnecessarily creates issues that can result in the suppression of your suspect’s confession or a reversal on appeal.  The safest route is to eliminate the issue altogether by remembering to tell the suspect that he has the right to the assistance of an attorney both before and during an interrogation, and to read him these rights so you don’t forget.  As for discussing with a suspect the likelihood that he won’t ever be seeing his children (born or unborn) again, inferring that confessing will somehow eliminate that possibility, this is always dangerous.  Playing on an in-custody suspect’s love for his or her children, under the right (or wrong) circumstances, can easily result in a finding that a later confession was involuntary.  Per the Ninth Circuit:  “‘The relationship between parent and child embodies a primordial and fundamental value of our society.’ United States v. Tingle, 658 F.2nd 1332, 1336 (9th Cir. 1981). When interrogators ‘deliberately prey upon the maternal [or paternal] instinct and inculcate fear in a [parent] that [he or] she will not see [his or] her child in order to elicit “cooperation,” they exert the “improper influence;” proscribed by Malloy [v. Hogan, 378 U.S. 1, 7, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)]’” (Brown v. Horell (9th Cir. 2011) 644 F.3rd 969, at p. 980.)  In this case, the videotape tellingly showed that this particular defendant couldn’t have cared less about his unborn child, precluding as disingenuous his later argument that playing on his emotions relative to his baby was the cause of his confession.  And speaking of the videotape, note the importance of videotaping a suspect’s interrogation.  It made all the difference in this case.  Not mentioned by the Court, note that Penal Code § 859.5 requires that any interrogation of a murder (adult or juvenile) suspect who is interrogated while held in a place of detention must be at least audiotaped.  If at all possible, videotaping the interrogation is even better because then the viewer can see a suspect’s physical reactions (or lack thereof) in addition to hearing his verbal responses; a factor that proved to be very important in this case.