Etherly v. Davis , 619 F.3d 654 ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3535
A RIS E THERLY,
Petitioner-Appellee,
v.
R ANDY D AVIS, Warden,Œ
Respondent-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 0057—Elaine E. Bucklo, Judge.
A RGUED D ECEMBER 11, 2009—D ECIDED A UGUST 25, 2010
Before B AUER, R IPPLE, and K ANNE, Circuit Judges.
K ANNE, Circuit Judge. This appeal arises from the dis-
trict court’s decision to grant Aris Etherly’s petition for
habeas corpus relief pursuant to 28 U.S.C. § 2254. The
district court reviewed the Illinois Appellate Court’s
determination that Etherly’s inculpatory statement to
Œ
Randy Davis, who became warden after this appeal was filed,
has been substituted for Gregory Schwartz, as the appellant.
See Fed. R. App. P. 43(c)(2).
2 No. 09-3535
the police was voluntary. Based on the applicable “totality
of the circumstances” test, the district court ruled such
determination by the appellate court was objectively
unreasonable. As a result of this ruling, the district court
granted Etherly’s habeas corpus petition, denied the
state’s motion to stay the judgment pending appeal, and
ordered the state to either retry or release Etherly
within 120 days.
The state appealed the denial of its motion for a stay
of release and we heard oral arguments on that issue,
after which we granted by per curiam opinion the
state’s motion for a stay. Etherly v. Schwartz, 590 F.3d 531(7th Cir. 2009). We found that because it was not rea-
sonably likely that we would affirm the district court’s
decision, the traditional factors regulating the issuance
of a stay outweighed Etherly’s presumption in favor of
release pending appeal. We now reverse the grant of
habeas corpus relief.
I. B ACKGROUND
On the night of July 13, 1995, in Chicago, Illinois, then-
fifteen-year-old Aris Etherly and several other members
of the Gangster Disciples street gang got into a car
and drove around looking to shoot and kill members of
a rival gang, the Vice Lords. Jeremy Rush and Henry
Wingard were standing on Wingard’s front porch when
the Gangster Disciples’ car approached. Wingard was
wearing a cap with the brim turned to the left, signifying
that he was a member of the Vice Lords. When the
car’s occupants started shooting, Wingard safely ducked
No. 09-3535 3
inside the house, but Rush was not so fortunate. Rush
was fatally shot in the head.
Four days after the shooting, Chicago police officers
arrived at Etherly’s house between 5:00 and 5:30 in the
morning. When Etherly’s father answered the door, police
noticed that a group of people were, given the early
hour, suspiciously gathered in the home. The officers
informed the father that they were investigating a
shooting and wanted to interview Etherly. There is some
dispute concerning the details of this conversation.
The father claimed that the officers were vague, did not
inform him where they were taking his son, and that
they said that Etherly could be picked up in an hour.
In contrast, Detectives Golab and Spencer recounted
telling the father that they were taking Etherly to their
Area 2 Detective Division office on 111th Street, offered
for the father to follow them to the station, and provided
the father with a business card. Regardless of what
Etherly’s father said to the police or what they said to
him, the series of events that followed are undisputed.
The officers arrived at the station around 6:00 a.m.
with Etherly in tow. Etherly was not interviewed until
8:00 a.m., at which time Youth Officer Frank DiGrazia
arrived. With Officer DiGrazia in the room, Detective
Spencer first read Etherly his Miranda rights and Etherly
stated that he understood those rights. Detective Spencer
then questioned Etherly. Etherly initially denied any
involvement in the shooting. At no time throughout
the day did Officer DiGrazia make an attempt to speak
to Etherly.
4 No. 09-3535
With no information forthcoming from Etherly, the
interview concluded after thirty minutes. Etherly then
requested to use the bathroom, and he was escorted
there by an unidentified uniformed officer. Upon his
return from the restroom, Etherly requested to speak to
Detective Spencer. DiGrazia was not present during
this second conversation. Etherly told Detective Spencer
that he wanted to show him where the guns involved
in the fatal shooting were hidden. Detective Spencer
then asked Detective Golab to meet with Etherly, and
Detective Golab reminded Etherly of his Miranda rights.
Etherly informed the detectives that the uniformed
officer had told him that he had an obligation to tell
the truth, and that “it would go better for him in court”
if he helped the police to locate the guns. Detective
Golab testified that he told Etherly that “they could not
promise him anything other than to inform the court of
his assistance,” and Etherly indicated that he under-
stood. Etherly then led the detectives to where the
guns were located. The first time the state informed the
trial judge of Etherly’s cooperation was at the hearing
on Etherly’s motion to suppress his statements.
Upon his return to the station, Etherly met with Assistant
State’s Attorney (“ASA”) Joseph Alesia, Detective Golab,
and Officer DiGrazia. Alesia introduced himself to
Etherly and explained that his role was as a prosecutor,
not as Etherly’s attorney. He then advised Etherly of his
Miranda rights, which Etherly claimed to understand.
Etherly requested and made a court-reported statement,
to which he added his own handwritten statement. In
both statements he confessed to his involvement in the
shooting, including the fact that he had fired seven shots.
No. 09-3535 5
During the interview with ASA Alesia, Etherly said that
he had been treated well by the police, that he under-
stood his rights at all times, and that his statement was
voluntary. In response to ASA Alesia’s inquiry into
whether anyone had made any promises in exchange
for Etherly’s statement, Etherly replied that the unnamed
uniformed officer had told him “to get the guns so the
judge would know I helped them.”
Prior to the suppression hearing, the trial court or-
dered that Etherly be evaluated by Dr. Phillip Pan, a staff
psychiatrist for Cook County’s Forensic Clinical Services.
In his report, Dr. Pan stated that Etherly was only mar-
ginally cooperative with the interview. He opined that
although Etherly was depressed and had borderline
intellectual functioning, he found that Etherly was able
to understand his Miranda rights and knowingly waive
them. The report concluded “that [Etherly] understands
that he is not required to talk to the police, . . . [and] that
he is entitled to have a lawyer present while he is ques-
tioned.”
Etherly contested the admission of his statement,
arguing that it had been made involuntarily and unintelli-
gently. Etherly pointed out that his handwritten state-
ment had a number of spelling errors. Also, Etherly’s
father testified that Etherly was illiterate and had been
taking special education classes since the second grade.
He also testified that Etherly had only attended school
through his freshman year of high school, and only
then by supplementing the standard curriculum with a
special tutor. Still, he had failed all his courses. After
6 No. 09-3535
balancing all the evidence, the trial court found that
Etherly’s statement was voluntary. It therefore denied
Etherly’s motion to suppress the statement.
At trial, Etherly presented a single witness in his defense,
Rebecca George. George, a teacher at the Cook County
Juvenile Temporary Detention Center where Etherly was
held pending trial, testified that Etherly was illiterate.
George stated that Etherly progressed slowly during
phonics lessons. She observed that he had difficulty
knowing the sounds of the letters of the alphabet and
that “he uses words . . . from how he hears other people
use words.”
The state’s evidence at trial consisted of Wingard’s
testimony about the shooting; Officer Robert Baike’s
testimony that he recovered .380-caliber shell casings
from the murder scene; Detective Golab’s and Detective
Spencer’s accounts of the investigation, including their
interviews with Etherly and his disclosure of the .38-caliber
revolver’s location; forensic specialist Ernest Warner’s
conclusion that the bullet found in Rush’s brain was
fired from the same weapon that fired the .380-caliber
casings found at the murder scene; and then-ASA
Alesia’s testimony regarding Etherly’s inculpatory state-
ment. At the close of trial, the jury found Etherly
guilty of first-degree murder. The court sentenced him
to a forty-year term of imprisonment.
On appeal to the Illinois Appellate Court, Etherly
argued, among other things, that the trial court erred in
finding that his inculpatory statement to the police was
voluntary. The court applied a totality of the circum-
No. 09-3535 7
stances test to determine whether Etherly’s confession
was voluntary. The court stated that the relevant factors
included “the defendant’s age, education, intelligence,
experience, and physical condition; whether he was
advised of his constitutional rights; the existence of
threats, promises or physical or mental coercion; and
whether the confession was induced by police decep-
tion.” (Appellant App. at 36.) The court also addressed
the additional factors for determining the voluntariness
of juvenile statements, such as the time of day when
questioning occurred, the presence or absence of a
parent, and the minor’s previous experience with the
court system. The court stated that “[t]he overriding
concern . . . is whether the defendant’s will was over-
borne.” (Id.)
The court found that the following factors weighed in
favor of finding that the statement was involuntary:
(1) Etherly was fifteen years old at the time of the state-
ment; (2) Etherly had a lack of intellectual capacity; and
(3) Etherly had no experience with the criminal justice
system. The court then discussed the factors that
weighed in favor of finding the statement voluntary:
(1) Etherly’s father was informed that his son was
wanted for questioning in connection with the shooting;
(2) a youth officer was present during the questioning
and Etherly never requested to confer with the youth
officer; (3) Etherly was read his Miranda rights on
several occasions and he repeatedly indicated that he
understood his rights; (4) prior to Etherly’s inculpatory
statement being made, Detective Golab clarified to
Etherly that no promises could be made and they could
8 No. 09-3535
only inform the judge of his assistance; (5) Dr. Pan
found that Etherly understood his legal rights; and
(6) Etherly was questioned for a limited period of time.
After weighing all of these factors, the appellate court
held that “the trial court’s findings were not against the
manifest weight of the evidence, and the totality of the
circumstances indicate that defendant’s confession was
the result of his own decision and not the result of com-
pulsion or his will being overborne.” (Id. at 39.) The
Illinois Supreme Court subsequently denied Etherly
leave to appeal.
Etherly filed a petition for writ of habeas corpus in
federal district court in which he raised six grounds
for relief, the central argument being that his inculpatory
statement to the police was involuntary. The district
court granted Etherly’s habeas corpus petition on the
ground that Etherly’s statement was involuntary
and that the Illinois Appellate Court’s determination
“amounted to a[n] unreasonable application of the Su-
preme Court’s ‘totality of the circumstances’ test.” Etherly
v. Schwartz, 649 F. Supp. 2d 892, 903 (N.D. Ill. 2009). The
district court noted that a reasonable application of
that test “compels” the conclusion that Etherly’s state-
ment was involuntary. (Id.)
The state filed a timely notice of appeal to this court. On
appeal, the state argues that the district court erred in
holding that the Illinois Appellate Court applied the
totality of the circumstances test in an objectively unrea-
sonable manner.
No. 09-3535 9
II. A NALYSIS
We review the district court’s grant of habeas relief
de novo. Northern v. Boatwright, 594 F.3d 555, 559 (7th Cir.
2010). Under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), habeas relief may be granted
only when a state court decision is “contrary to, or in-
volved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court
of the United States” or “was based on an unreasonable
determination of the facts in the light of the evidence
presented.” 28 U.S.C. § 2254(d); Williams v. Taylor, 529
U.S. 362, 404-05 (2000); Morgan v. Krenke, 232 F.3d 562, 565-
66 (7th Cir. 2000).
A decision is “contrary to” federal law when the state
court applied a rule that “contradicts the governing law”
set forth by the Supreme Court or if the state court
reached a different outcome based on facts “materially
indistinguishable” from those previously before the
Supreme Court. Williams, 529 U.S. at 405-06; see also
Calloway v. Montgomery, 512 F.3d 940, 943 (7th Cir. 2008).
A state court’s application of clearly established federal
law is unreasonable if it identifies the appropriate
standard but applies it to the facts in a manner with
which a reasonable court would disagree. Williams, 529
U.S. at 413; Williams v. Thurmer, 561 F.3d 740, 742-43
(7th Cir. 2009).
Mere error is insufficient; “[r]ather, in order to trigger
grant of the writ, the state-court decision must be both
incorrect and unreasonable.” Woods v. McBride, 430 F.3d
813, 817 (7th Cir. 2005). Under either prong of the test,
10 No. 09-3535
unreasonableness is judged by an objective standard.
Burr v. Pollard, 546 F.3d 828, 831 (7th Cir. 2008). A deci-
sion is not objectively unreasonable unless it falls “ ‘well
outside the boundaries of permissible differences of
opinion.’ ” Starkweather v. Smith, 574 F.3d 399, 402 (7th
Cir. 2009) (quoting Hardaway v. Young, 302 F.3d 757, 762
(7th Cir. 2002)). Further, in performing our evaluation,
we presume the factual findings of the state court to be
correct, unless the petitioner can rebut this presumption
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1);
see also Allen v. Buss, 558 F.3d 657, 661 (7th Cir. 2009).
As a threshold matter, we must identify the “clearly
established Federal law” at issue. For purposes of § 2254,
this phrase “refers to the holdings, as opposed to the
dicta, of [the Supreme Court’s] decisions as of the time
of the relevant state-court decision.” Taylor, 529 U.S. at
412. A determination of whether a confession was invol-
untary requires an examination of the “totality of the
surrounding circumstances,” including the charac-
teristics of the person in custody and the details of the
interrogation that resulted in the statement. Schneckloth
v. Bustamonte, 412 U.S. 218, 225-26 (1973) (stating that if
a defendant’s confession is not “ ‘the product of an es-
sentially free and unconstrained choice by its maker’ ”
and “ ‘if his will has been overborne and his capacity
for self-determination critically impaired, the use of
his confession offends due process’ ” (quoting Culombe v.
Connecticut, 367 U.S. 568, 602 (1961))).
This same test applies to confessions by juveniles, but
in those cases confessions are to be evaluated with
No. 09-3535 11
special care. In re Gault, 387 U.S. 1, 45 (1967); Gilbert v.
Merchant, 488 F.3d 780, 791 (7th Cir. 2007) (quoting Haley
v. Ohio, 332 U.S. 596, 599 (1948)). The relevant factors to
consider include “the juvenile’s age, experience, educa-
tion, background, and intelligence, and . . . whether he
has the capacity to understand the warnings given him, the
nature of his Fifth Amendment rights, and the conse-
quences of waiving those rights.” Fare v. Michael C., 442
U.S. 707, 725 (1979). Other considerations include the
“length of time that the juvenile was questioned by the
authorities and the absence or presence of a parent or
other friendly adult.” Gilbert, 488 F.3d at 791; see
also Gallegos v. Colorado, 370 U.S. 49, 54-55 (1962). We
will also carefully “scrutinize police questioning tactics
to determine if excessive coercion or intimidation . . .
has tainted the juvenile’s confession.” Hardaway, 302
F.3d at 765.
We recognize, however, that “it is the totality of the
circumstances underlying a juvenile confession, rather
than the presence or absence of a single circumstance,
that determines whether or not the confession should
be deemed voluntary.” Gilbert, 488 F.3d at 793; see also
Hardaway, 302 F.3d at 763-68 (refusing to impose a
per se rule that no child under the age of sixteen may
waive his rights and denying habeas relief even though
a fourteen-year-old’s confession was obtained without
the presence of a friendly adult); Fare, 442 U.S. at 725.
We find, and there is no dispute, that the Illinois Ap-
pellate Court identified and applied the correct gov-
erning law to determine whether Etherly’s confession was
12 No. 09-3535
involuntary. The appellate court recognized the correct
totality of the circumstances test and applied the factors
accordingly. Because relief is therefore unavailable
under the “contrary to” prong of § 2254(d)(1), we turn
to whether the state appellate court reasonably applied
that test.
The district court concluded that the state appellate
court’s application of the totality of the circumstances
test was objectively unreasonable. The district court
based its holding on its determination that the state
court either placed too much or too little weight on each
factor involved. For example, the district court stated
it was “more than a bit skeptical” of the weight the ap-
pellate court accorded to Etherly’s age, borderline intel-
lectual capacity, and lack of criminal background, which
affected his ability to grasp whether police promised
leniency in exchange for his statement. Etherly, 649
F. Supp. 2d at 899. Further, the district court stated that
the state court placed too much weight on the lack of a
promise of a “specific benefit” in exchange for Etherly’s
assistance, and too little weight on the unidentified offi-
cer’s comments to Etherly that he “had a moral obliga-
tion” to cooperate, and if he did so, that it would “go
better” for him in court. Id. Contrary to the state
appellate court, the district court opined that Etherly
understood the comments to be a promise, and that the
police knew that such a suggestion was “reasonably
likely to elicit an incriminating response” from Etherly.
Id. at 899-900 (citing Rhode Island v. Innis, 446 U.S. 291(1980)). The district concluded that unless Etherly
No. 09-3535 13
waived his Miranda rights, Etherly’s statement should
have been inadmissible.
The district court also said that the Illinois Appellate
Court put too much weight on the lack of coercion and
on the Miranda warnings provided and too little weight
on the passiveness of Officer DiGrazia. According to the
district court, because of Etherly’s age, low intelligence,
lack of experience in the criminal justice process, and the
presence of a passive youth officer, Etherly could not
have made a knowing and intelligent waiver of his
Miranda rights.
We pause to note, however, that whether a petitioner
made a knowing and voluntary waiver of his Miranda
rights is a separate inquiry from a voluntariness claim, see
Edwards v. Arizona, 451 U.S. 477, 483-84 (1981), and
Etherly never raised the “knowing and voluntary”
waiver argument. But because “[i]n evaluating whether
a suspect voluntarily waived his Miranda rights, we
consider the same factors . . . in assessing the overall
voluntariness of a confession,” Ruvalcaba v. Chandler, 416
F.3d 555, 562 (7th Cir. 2005), we will discuss the
district court’s conclusion below.
The district court’s opinion notwithstanding, the
Illinois Appellate Court properly addressed and consid-
ered all of the relevant factors in its analysis. How much
weight to assign each factor on facts similar to those
in Etherly’s case may differ from court to court, and
reasonable jurists may certainly disagree. See Hall v.
Washington, 106 F.3d 742, 748-49 (7th Cir. 1997) (“The
statutory ‘unreasonableness’ standard allows the state
14 No. 09-3535
court’s conclusion to stand if it is one of several equally
plausible outcomes.”). Therefore, unless the state court’s
application of these factors was unreasonable, the grant
of Etherly’s habeas corpus petition must be reversed.
The Illinois Appellate Court evaluated and discussed
the importance of Etherly’s age. Because of his youth,
the court also considered whether a friendly adult was
present. The court discussed Etherly’s father’s aware-
ness of the police interview, his opportunity to come
to the station, and his possession of police contact infor-
mation. Although his father claimed he was unable to
locate his son for several days after the interview, the
state trial court concluded, and the appellate court
agreed, that the officers’ testimony was more credible. The
court also noted that Officer DiGrazia was present both
during the initial questioning and at the time that Etherly
provided his written confession. The court said that
although the youth officer was passive, Etherly never
took advantage of the opportunity to consult with him.
The district court, however, disagreed with the ap-
pellate court’s finding on this latter factor, commenting
that it “cannot be squared with Supreme Court and
Seventh Circuit jurisprudence,” and it therefore “was
unreasonable for the court to consider [the youth officer]
as a factor favoring a finding of voluntariness.” Etherly,
649 F. Supp. 2d at 900-01. We agree with the district
court that it is unreasonable to conclude that a fifteen-year-
old, with no prior criminal experience, should be ex-
pected to seek the advice of a youth officer when that
officer does not make his special role known to the
No. 09-3535 15
minor. But in Fare, the Supreme Court “held that a six-
teen-year-old could make a statement intelligently
and voluntarily, even without the presence of a friendly
adult.” Ruvalcaba, 416 F.3d at 561; see also Hardaway, 302
F.3d at 763 (“[T]he mere absence of a friendly adult is
by itself insufficient to require suppression of a juvenile
confession.”); Johnson v. Trigg, 28 F.3d 639 (7th Cir. 1994)
(reversing the district court’s grant of habeas relief
despite the uncounseled confession of a fourteen-year-old
with below-average intelligence). In fact, “[e]ven re-
fusing a child’s request to have a parent or other
friendly adult (other than a lawyer) present is not
enough to suppress the confession if other factors
indicate that the confession was voluntary.” Hardaway,
302 F.3d at 765 (citing Fare, 442 U.S. at 718).
In other words, the youth officer does not, and should
not, play the role of a lawyer to the minor. The officer’s
presence is more than what is required by law to safe-
guard against any abuse of process or coercion. Therefore,
the district court overstated the import of this factor
and was incorrect in concluding that the state appellate
court unreasonably weighed its impact.
The Illinois Appellate Court also recognized and
weighed Etherly’s lack of intellectual capacity. Although
the court concluded that this weighed against admission
of the statement, the court credited Dr. Pan’s testimony
that Etherly understood that he was not required to talk
to the police and that the prosecutor would act upon
any information provided by Etherly. The district court,
however, appearing to engage in a de novo review, found
16 No. 09-3535
that the appellate court only paid “lip service” to this
factor, concluding that the probative value and credi-
bility of Dr. Pan’s report were undermined by the fact
that such report was more than one year old.
The state court’s factual findings are entitled to defer-
ence, unless objectively unreasonable in light of the
evidence presented in the state-court proceeding. 28
U.S.C. § 2254(e)(1); Conner v. McBride, 375 F.3d 643, 649
(7th Cir. 2004). Here, the state court reasonably relied
on Dr. Pan’s report in concluding that Etherly under-
stood his rights. Etherly did not present clear and con-
vincing evidence to rebut the state court’s reasonable
reliance on this report. Therefore, the district court erred
in reviewing sua sponte the state court’s findings
regarding the probative value of the report and by
failing to accord proper deference to those findings. The
state court did not give short-shrift to Etherly’s low
intelligence, and its reliance on Dr. Pan’s report was not
objectively unreasonable.
With regard to the remaining factors, the Illinois Appel-
late Court considered whether police engaged in physical
or psychological coercion and determined that none
existed. The court reasoned that “merely telling [Etherly]
to tell the truth . . . to show the judge he cooperated
does not constitute a promise of leniency nor does it
evidence threats or coercion.” (Appellant App. at 38.)
Further, the court noted that Etherly was given his
Miranda warnings on multiple occasions, including
after the conversation with the unidentified officer, and
he “repeatedly indicated that he understood his rights.”
No. 09-3535 17
(Id. at 37.) The court also observed that Detective Golab
made clear that the police could make no promises. Thus,
despite Etherly’s age, lack of intelligence, and lack of
criminal background, the state court found that the
weight of the evidence, on balance, favored admission
of Etherly’s statement.
We agree with the Illinois Appellate Court that the
interaction with the unidentified police officer did not
rise to the level of coercion. Although we think it obvious
that the officer’s statement was inadvisable, merely
telling somebody to tell the truth is not coercive. See
Johnson, 28 F.3d at 640-45. We also agree with the
appellate court that no specific benefit was promised in
exchange for Etherly’s cooperation, and Detective Golab
made it clear that no promises would be forthcoming.
The Illinois Appellate Court did not fail to consider
relevant material factors or grossly miscalculate the
balance. Therefore, in light of the fact that Etherly was
read his rights several times and understood them,
was questioned for a very limited period of time, and
was not coerced, we conclude that the Illinois Appel-
late Court’s determination that Etherly’s statement
was voluntary under the totality of the circumstances
did not fall well outside the boundaries of permissible
differences of opinion. It therefore was not objectively
unreasonable.
III. C ONCLUSION
The Illinois Appellate Court identified the correct
totality of the circumstances test, considered all relevant
18 No. 09-3535
factors, and made a legally defensible determination
that Etherly’s inculpatory statement was voluntary.
Although not every reasonable jurist would have
reached the same outcome, we hold that the appellate
court’s analysis and conclusion were not objectively
unreasonable under the law. Therefore, Etherly’s petition
for habeas corpus relief should have been denied.
For the foregoing reasons, we R EVERSE the judgment
of the district court and R EMAND for further pro-
ceedings consistent with this opinion.
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