Jimmie Johnson v. William Pollard

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1695
JIMMIE JOHNSON,
Petitioner-Appellant,
v.
W ILLIAM P OLLARD , Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:06-cv-00357-AEG—Aaron E. Goodstein, Magistrate Judge.
A RGUED O CTOBER 30, 2008—D ECIDED M ARCH 24, 2009
Before E ASTERBROOK, Chief Judge, and R IPPLE and
T INDER, Circuit Judges.
R IPPLE, Circuit Judge. Jimmie Johnson was convicted in
Wisconsin state court of reckless homicide, recklessly
endangering safety and being a felon in possession of a
firearm. The trial court admitted into evidence Mr. John-
son’s confession. Mr. Johnson claims that this confession
was the product of police coercion and, consequently,
was inadmissible at trial. After unsuccessfully seeking
2 No. 08-1695
relief in the Wisconsin courts, Mr. Johnson filed a petition
for a writ of habeas corpus under 28 U.S.C. § 2254. The
district court denied his petition and later denied his
request for a certificate of appealability. We granted a
certificate of appealability on the issue of whether
Mr. Johnson’s confession was voluntary. For the reasons
set forth in this opinion, we affirm the judgment of the
district court.
I
BACKGROUND
On September 20, 2000, two men were fatally injured and
three individuals were wounded when a gunman
opened fire outside a Milwaukee tavern. Mr. Johnson was
implicated in the shootings, and police arrested him on
unrelated charges in the early morning hours of October 2,
2000. The police interviewed Mr. Johnson on multiple
occasions following his arrest.1 Mr. Johnson initially denied
1
The parties dispute the number of the interviews and the time
period over which they occurred. Mr. Johnson claims he was
interviewed five times between October 2 and October 4.
Elsewhere in the record, he indicated that he was interviewed
six times in five days. Our review of the evidence presented
at the hearing on Mr. Johnson’s motion to suppress his con-
fession suggests that Mr. Johnson participated in two interviews
on October 2, submitted to a polygraph examination on the
morning of October 3 and confessed to his involvement in the
shootings in an interview following the polygraph examination
on October 3.
(continued...)
No. 08-1695 3
1
(...continued)
Specifically, the record suggests that Mr. Johnson was arrested
on October 2, 2000, at 4:25 a.m. R.35 at 12. At that time, he was
not considered a suspect in the shootings, but he had been
identified as a potential witness. Id. at 14-15. Two detectives
questioned Mr. Johnson about the shootings from approxi-
mately 6:00 a.m. until approximately 8:00 a.m. on the day of his
arrest. Id. at 15. Mr. Johnson was not informed of his Miranda
rights during that interview. Id. at 14. Later that evening, Mr.
Johnson requested a second interview. Id. at 42. Mr. Johnson
was informed of his Miranda rights at the beginning of that
interview. Id. at 36-38. During the interview, which lasted from
approximately 9:00 p.m. until 2:47 a.m., the interrogating
officers allowed Mr. Johnson to take six breaks. Id. at 34, 44, 47.
On October 3, Mr. Johnson submitted to a polygraph examina-
tion. Id. at 86. The examination lasted from approximately 11:15
a.m. until 2:58 p.m. Id. at 87, 98. At the beginning of the exam-
ination, Mr. Johnson was informed of his Miranda rights and
specifically acknowledged that he was aware that he could call
an attorney at any point during the examination. Id. at 90-94.
At the conclusion of the examination, Mr. Johnson was advised
that the test was complete and was moved to another room.
Id. at 97-99.
Later that evening, Mr. Johnson was interviewed by Lieuten-
ant Jessup and Detective Heier. The interview began at 6:24 p.m.
R.36 at 28. At the beginning of the interview, Mr. Johnson again
was informed of his Miranda rights. Id. at 25-26. Shortly after
the interview began, Mr. Johnson admitted that his earlier
statements were false and confessed to firing a gun into the
crowd on the night in question. Id. at 33-35, 46-49. At approxi-
mately 7:00 p.m., after he admitted to firing a weapon, Mr.
Johnson was placed under arrest for homicide. Id. at 35. Lieuten-
(continued...)
4 No. 08-1695
any involvement in the shootings and agreed to take a
polygraph test, which was administered on October 3,
2000. At the conclusion of the test, Mr. Johnson signed a
statement indicating the following: (1) he knowingly and
intelligently had waived his rights during the examina-
tion; (2) his statements during the examination were
made willingly; and (3) he understood that the examina-
tion was over and that any questions that the police
might ask and any answers that he might give from that
point forward would not be part of the polygraph exam-
ination.
Approximately three hours after the examination con-
cluded, Mr. Johnson was read his Miranda rights and
interviewed by the police. During the interview, Detective
Heier made the following statement: “It’s my understand-
ing you must have failed that polygraph because you’re
still here.” 2 R.37 at 34. The officers made no other
remarks about the results of the polygraph examination.
1
(...continued)
ant Jessup indicated that, throughout the interview, Mr. Johnson
appeared cooperative and willing to discuss his involvement
in the incident. Id. at 25. Lieutenant Jessup also stated that
Mr. Johnson never appeared reluctant to answer questions. Id.
at 30-31. During the interview, Mr. Johnson was permitted to
use the restroom and was given a cheeseburger, french fries
and a soda. Id. at 30-32. The interview ended at 9:08 p.m. Id.
at 41.
2
The record suggests that Mr. Johnson failed the polygraph
examination. However, the parties dispute whether Detective
Heier had actual knowledge of the results of the examination
at the time he made the statement.
No. 08-1695 5
Following the statement by Detective Heier, Mr. Johnson’s
demeanor changed, and he confessed to his involvement
in the shooting. He subsequently was convicted by a
Milwaukee County jury of two counts of reckless
homicide, three counts of recklessly endangering safety
and one count of being a felon in possession of a firearm.
Mr. Johnson appealed his conviction to the Court of
Appeals of Wisconsin, claiming that his “confession
was coerced in violation of the Fifth Amendment when
City of Milwaukee police detectives overcame [his] will
by use of the polygraph examination process.” R.6, Ex. I
at 43. Despite framing the issue on appeal in federal
constitutional terms, Mr. Johnson’s brief neither
relied upon federal case law discussing the Fifth Amend-
ment nor specifically referenced those portions of Wis-
consin cases that addressed the voluntariness issue
in terms of federal constitutional law;3 the primary conten-
3
The only federal case cited by Mr. Johnson was Watts v.
Indiana, 338 U.S. 49, 51 (1949) (plurality opinion), which he relied
on for the proposition that, although federal courts ordinarily
should hesitate before overturning a state court’s finding of
fact, they may independently determine the constitutional
import of those facts. He then stated that the Court of Appeals
of Wisconsin reviews the trial court’s factual findings for clear
error, and its constitutional findings de novo. R.6, Ex. I at 43-44.
In his analysis, Mr. Johnson cited six Wisconsin cases: State
v. Dean, 307 N.W.2d 628 (Wis. 1981) (cited for the proposition
that polygraph tests are inadmissible in criminal proceedings,
R.6, Ex. I at 44); State v. Schlise, 271 N.W.2d 619 (Wis. 1978) (cited
(continued...)
6 No. 08-1695
3
(...continued)
for the proposition that post-polygraph statements may be
admissible if totally discrete from the preceding polygraph
examination, R.6, Ex. I at 44); State v. Johnson, 535 N.W.2d 441(Wis. 1995) (utilized to set out a three-part inquiry regarding
when a post-polygraph statement is considered discrete from
a polygraph examination, R.6, Ex. I at 44-45); Turner v. State,
250 N.W.2d 706 (Wis. 1977) (noted for the proposition that
the Supreme Court of Wisconsin has found a six-day interval
between a polygraph examination and a subsequent statement
sufficient to render the statement discrete from the polygraph,
R.6, Ex. I at 45-46); Barrera v. State, 298 N.W.2d 820 (Wis. 1980)
(referred to in support of Mr. Johnson’s claim that confronting
a defendant with test results could be so psychologically
coercive as to require suppression, R.6, Ex. I at 46); McAdoo
v. State, 223 N.W.2d 521 (Wis. 1974) (cited in reference to one
of several factors that a court may consider in determining
whether to allow the admission of a post-polygraph state-
ment, R.6, Ex. I at 46).
Of the cases cited in Mr. Johnson’s brief, two cases—Dean, 307
N.W.2d 628, and Johnson, 535 N.W.2d 441—do not discuss
whether the confessions at issue were voluntary. The remaining
cases do address the voluntariness issue, but their discussion
of federal case law is limited. In Turner, 250 N.W.2d at 715-17,
the Supreme Court of Wisconsin relied solely on state law in
determining whether the defendant’s confession was volun-
tary. In Barrera, 298 N.W.2d at 291-93, the court indirectly
referenced federal law in its totality-of-the-circumstances
analysis. In Schlise, 271 N.W.2d at 626-30, and McAdoo, 223
N.W.2d at 526-27, the court referred to federal case law, but
primarily relied on state case law in its analyses.
(continued...)
No. 08-1695 7
tion in his brief was that the polygraph examination and
the interview following the examination constituted a
single event, and, as such, any statements made during
the examination and the interview were inadmissible.
The Court of Appeals of Wisconsin held that the post-
3
(...continued)
Mr. Johnson argued, based on the above-cited cases, that
“[t]he determination of whether a post-polygraph statement is
sufficiently discrete from the polygraph examination and, thus,
admissible must be made after a careful reference to . . . all of the
relevant factors and the totality of the circumstances of an
individual case.” R.6, Ex. I at 47. He then asserted that his
confession, which was made during the interview following
his polygraph examination, should be suppressed. He claimed
that Detective Durbis initially proposed that he take the poly-
graph examination. R.6, Ex. I at 48. He also stated that he “was
unaware that his interview . . . on October 3, 2000 was not an
extension of the polygraph process.” Id. He further contended
that Detective Heier’s statement about the results of the poly-
graph was intended to overcome his will after two days of
interrogation. Id. Mr. Johnson claimed that, given his naivete 3
and lack of education, Detective Hargrove’s attempt to describe
the polygraph examination process and “sanitize it from the
police interrogation process” was insufficient to negate the
coercive effect of Detective Heier’s statements. Id. at 49. There-
fore, he argued, because the police did not attempt to make
him aware that the interrogation following the polygraph
examination was not simply another phase of the examination,
and because they referenced the results of the examination
during that interview, the interview and the polygraph examina-
tion should be considered a single event that must be sup-
pressed.
8 No. 08-1695
polygraph interview was distinct both in time and in
location from the polygraph examination. The appellate
court therefore affirmed Mr. Johnson’s conviction, and
the Supreme Court of Wisconsin denied Mr. Johnson’s
petition for discretionary review.
After unsuccessfully challenging his conviction on
appeal, Mr. Johnson sought collateral post-conviction
relief in the Wisconsin state courts. The trial court denied
relief and the judgment was affirmed by the Court of
Appeals of Wisconsin. The Supreme Court of Wisconsin
denied review.
Mr. Johnson filed this habeas corpus petition in the
United States District Court for the Eastern District of
Wisconsin. The district court rejected his petition and
denied his request for a certificate of appealability.
We granted his request for a certificate of appealability
on the question of whether his confession was involuntary.
II
DISCUSSION
This appeal presents two issues: First, the State contends
that we are precluded from reviewing Mr. Johnson’s
federal constitutional claim because he did not present
that claim in the state-court proceedings. Second,
Mr. Johnson argues that the state court violated his
Fifth Amendment rights by admitting the confession
into evidence.
No. 08-1695 9
A.
The State submits that Mr. Johnson failed to present his
Fifth Amendment claim to the Wisconsin courts. In its
view, therefore, we are precluded from considering the
merits of Mr. Johnson’s petition. “Whether a party has
procedurally defaulted his claim is a question of law that
we review de novo.” Malone v. Walls, 538 F.3d 744, 753
(7th Cir. 2008) (citing Lieberman v. Thomas, 505 F.3d 665,
670 (7th Cir. 2007)).
Our authority to grant a petition is limited by 28 U.S.C.
§ 2254(b), which provides that “[a]n application for a
writ of habeas corpus . . . shall not be granted unless . . . the
applicant has exhausted the remedies available in the
courts of the State.” 4 Implicit in the exhaustion require-
ment is the related condition which requires petitioners
to “fairly presen[t] federal claims to the state courts in
order to give the State the opportunity to pass upon
and correct alleged violations of its prisoners’ federal
rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (alteration
in original) (citations and quotation marks omitted); see
also O’Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999)
(“To . . . protect the integrity of the federal exhaustion
rule, we ask not only whether a prisoner has exhausted
state remedies, but also whether he has properly ex-
hausted those remedies, i.e., whether he has fairly pre-
4
See also Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“Before seeking
a federal writ of habeas corpus, a state prisoner must exhaust
available state remedies . . . .”); Malone v. Walls, 538 F.3d 744, 753
(7th Cir. 2008).
10 No. 08-1695
sented his claims to the state courts.” (citations and
quotation marks omitted)); Hough v. Anderson, 272 F.3d
878, 892 (7th Cir. 2001). In order to satisfy this require-
ment, a petitioner must fairly present his federal claims at
each level of the state’s established review process. See
Woodford v. Ngo, 548 U.S. 81, 92 (2006) (noting that “[a]
state prisoner is generally barred from obtaining federal
habeas relief unless the prisoner has properly presented
his or her claims through one complete round of the
State’s established appellate review process” (citations
and quotation marks omitted)).5 Failure to do so con-
stitutes procedural default that precludes review by
federal courts. See id. at 92 (“the sanction for failing to
exhaust properly (preclusion of review in federal court)
is given the separate name of procedural default”); Lewis
v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir. 2004).
However, we need not address the procedural default
issue raised by the State because Mr. Johnson’s claim
clearly fails on the merits. See 28 U.S.C. § 2254(b)(2); see,
e.g., Bell v. Cone, 543 U.S. 447, 451, 451 n.3 (2005) (declining
to address whether the court of appeals correctly held that
the petitioner had not defaulted on his claim and citing
28 U.S.C. § 2254(b)(2) for the proposition that “an applica-
tion for habeas corpus may be denied on the merits,
notwithstanding a petitioner’s failure to exhaust in state
court”); Lambrix v. Singletary, 520 U.S. 518, 525 (1997)
5
See also Baldwin, 541 U.S. at 29 (“[a] prisoner must fairly
present his claim in each appropriate state court” (citations and
quotation marks omitted)); Lewis v. Sternes, 390 F.3d 1019, 1025
(7th Cir. 2004).
No. 08-1695 11
(acknowledging that a federal court may deny a petition
for habeas corpus on the merits without resolving whether
the issue was presented fairly to the state courts).
B.
Mr. Johnson maintains that the admission of his con-
fession violated his Fifth Amendment rights because the
confession was involuntary. Ordinarily, our review of a
habeas petition is governed by the standards set forth in
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2254, which provides that
habeas relief
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceed-
ing.
28 U.S.C. § 2254(d). Here, the Court of Appeals of Wiscon-
sin, while it did not rely explicitly on federal authority,6
6
Citation to Supreme Court authority by a state court is not an
essential ingredient of resolving a federal constitutional issue.
(continued...)
12 No. 08-1695
appears to have resolved the federal issue of the voluntari-
ness of the confession on the merits. Therefore, the ap-
plicable standard of review is the one contained in
section 2254(d). Under that standard,
A state-court decision is contrary to this Court’s
clearly established precedents if it applies a rule that
contradicts the governing law set forth in our cases, or
if it confronts a set of facts that is materially indistin-
guishable from a decision of this Court but reaches a
different result. A state-court decision involves an
unreasonable application of this Court’s clearly estab-
lished precedents if the state court applies this
Court’s precedents to the facts in an objectively unrea-
sonable manner.
Brown v. Payton, 544 U.S. 133, 141 (2005) (citations and
quotation marks omitted). However, we hasten to add
that, if the Wisconsin court did not reach the merits of the
federal claim and a de novo standard of review is appro-
priate, see 28 U.S.C. § 2243,7 the result here would be the
same.
6
(...continued)
Mitchell v. Esparza, 540 U.S. 12, 16 (2004) (per curiam); Early v.
Packer, 537 U.S. 3, 8 (2002) (per curiam).
7
Our previous opinions have equated this statutory standard
with substantive de novo review, Carlson v. Jess, 526 F.3d 1018,
1024 (7th Cir. 2008), and plenary review, see, e.g., Harrison v.
McBride, 428 F.3d 652, 665, 668-70 (7th Cir. 2005) (engaging in
a review of the facts surrounding the petitioner’s trial and
concluding that the petitioner “did not receive a trial by a
judge free from bias,” id. at 670).
No. 08-1695 13
A confession is involuntary when it was given in cir-
cumstances that were sufficient to overbear the confessor’s
free will. Lynumn v. Illinois, 372 U.S. 528, 534 (1963); see
also Weidner v. Thieret, 866 F.2d 958, 963 (7th Cir. 1989)
(“Interrogation becomes constitutionally objectionable
only when the circumstances prevent the person being
questioned from making a rational choice.”). We examine
the totality of the circumstances surrounding a con-
fession to determine whether the confession is voluntary.
Miller v. Fenton, 474 U.S. 104, 110, 112 (1985); see also
Gilbert v. Merchant, 488 F.3d 780, 791 (7th Cir. 2007).
Therefore, we must determine whether the circum-
stances surrounding Mr. Johnson’s confession would
have interfered with his “free and deliberate choice of
whether to confess.” Holland v. McGinnis, 963 F.2d 1044,
1051 (7th Cir. 1992) (citations and quotation marks omit-
ted). Applying this standard, we conclude that the
record does not support a finding that Mr. Johnson’s
confession was the product of police coercion.
The parties disagree on both the circumstances sur-
rounding Mr. Johnson’s confession and the impact those
circumstances had on Mr. Johnson’s free will. Mr. Johnson
contends that his confession was the involuntary
product of coercive interrogation tactics. Specifically,
Mr. Johnson points to two allegedly coercive tactics that,
in his view, were designed to overcome his free will.
First, he claims that Detective Heier taunted him by
indicating that he had failed his polygraph examination.
Mr. Johnson submits that, because Detective Heier was
unaware of the results of the polygraph at the time, his
statement could have had no purpose other than to
14 No. 08-1695
“humiliate [him] into inculpating himself.” Appellant’s Br.
19. Second, Mr. Johnson takes issue with the number of
times that he was interrogated; he claims that “the re-
peated interrogations demonstrate[d] . . . that the
police would not stop until [he] said that he was the
shooter.” Id. at 20. Mr. Johnson asserts that these two
tactics, taken together, created a coercive environment,
overcame his free will and caused him to give an involun-
tary confession.
The State submits that neither Detective Heier’s state-
ment nor the frequent interrogations were so coercive as
to render Mr. Johnson’s confession involuntary. It asserts
that, at the time Detective Heier made the statement,
he knew that Mr. Johnson had failed the polygraph
test; therefore, the statement was not coercive. See Barrera
v. Young, 794 F.2d 1264, 1266, 1270-71 (7th Cir. 1986)
(concluding that the fact that a polygraph examiner
accurately informed the petitioner about the results of
his co-defendant’s polygraph examination did not
render the petitioner’s confession involuntary). Further-
more, the State contends, even if Detective Heier did not
know the results of the polygraph examination at the time
he made the statement, the use of “deception by an inter-
rogator does not automatically invalidate a confession.”
Sotelo v. Indiana State Prison, 850 F.2d 1244, 1251 (7th Cir.
1988). The State claims that Detective Heier’s statement
and the repeated interrogations, when viewed in light
of the fact that Mr. Johnson repeatedly was reminded of
his Miranda rights, were not so coercive as to compel
Mr. Johnson to give an involuntary confession.
No. 08-1695 15
We begin our analysis by evaluating Detective Heier’s
allegedly coercive statement. Mr. Johnson claims that
Detective Heier falsely, or at least unknowingly, told
Mr. Johnson that he had failed his polygraph examina-
tion. Appellant’s Br. 19. As an initial matter, we doubt
that Mr. Johnson’s characterization of Detective Heier’s
statement is correct. A fair reading of the state-
ment—“It’s my understanding you must have failed that
polygraph because you’re still here”—shows that the
statement was not tantamount to a claim that Mr. Johnson
had failed the polygraph examination. Rather, the state-
ment reflected the detective’s belief that, had Mr. Johnson
passed the polygraph examination, he would have been
released. Moreover, even if we were to assume that
Detective Heier did not know the outcome of the poly-
graph examination and lied about the results to Mr.
Johnson, the fact that the detective made a false or mis-
leading statement during the course of the interrogation
would not, by itself, render Mr. Johnson’s confession
involuntary. United States v. Harris, 914 F.2d 927, 933 (7th
Cir. 1990); Sotelo, 850 F.2d at 1251. The fact that an officer
misrepresents the strength of the evidence against a
defendant is insufficient, standing alone, to render an
otherwise voluntary confession inadmissible. Holland, 963
F.2d at 1051; Clanton v. Cooper, 129 F.3d 1147, 1158 (10th
Cir. 1997). An interrogating officer’s misrepresentations
are neither dispositive of nor irrelevant to the question of
whether a defendant’s statement was voluntary. Rather,
when an interrogator makes a false statement to a defen-
dant, we must evaluate the extent to which the misrepre-
sentation “[overcame the defendant’s] will by distorting
16 No. 08-1695
an otherwise rational choice.” Holland, 963 F.2d at 1051;
see, e.g., Frazier v. Cupp, 394 U.S. 731, 739 (1969) (“The
fact that the police misrepresented the statements that
[the co-defendant] had made is, while relevant, insuf-
ficient . . . to make this otherwise voluntary confession
inadmissible.”).
The misrepresentation at issue in this case, if it may be
considered a misrepresentation at all, is not the type of
false statement that would “distort[] the alternatives
among which [Mr. Johnson was] being asked to choose.”
Weidner, 866 F.2d at 963. This conclusion is consistent
with the holdings of the Supreme Court and our sister
circuits. See Lynumn, 372 U.S. at 533-34 (concluding that
the defendant’s confession was coerced when the police
implied that she would lose custody of her children and
her state financial benefits if she did not cooperate);
United States v. Lopez, 437 F.3d 1059, 1066 (10th Cir. 2006)
(determining that the agents’ misrepresentation of the
evidence against the defendant, combined with their
promise that if the defendant confessed he would be
sentenced to six years’ imprisonment, rather than sixty,
rendered the confession involuntary); United States v.
Anderson, 929 F.2d 96, 98, 102 (2d Cir. 1991) (holding
that the agent’s statement that speaking with a lawyer
would permanently preclude the defendant from co-
operating with police rendered the defendant’s first
confession involuntary). Detective Heier’s statement
related to the strength of the State’s case; it would not
have caused Mr. Johnson to “consider anything beyond
his own beliefs regarding his actual guilt or innocence,
his moral sense of right and wrong, and his judgment
No. 08-1695 17
regarding the . . . evidence linking him to the crime.”
Holland, 963 F.2d at 1051. The Supreme Court, this court
and our sister circuits routinely have held that such
misrepresentations are insufficient, in and of themselves,
to render a confession involuntary. See, e.g., Frazier, 394
U.S. at 737, 739 (false statement that the co-defendant
had confessed); Holland, 963 F.2d at 1051 (false claim that
a witness had seen the defendant’s vehicle at the crime
scene); Lucero v. Kerby, 133 F.3d 1299, 1311 (10th Cir. 1998)
(misrepresentation regarding fingerprint evidence
found in the victim’s home); Ledbetter v. Edwards, 35 F.3d
1062, 1066, 1070 (6th Cir. 1994) (falsified fingerprint-
comparison chart, claim that three witnesses had identi-
fied defendant, and staged victim identification). In the
absence of other elements indicating that Mr. Johnson’s
will was overborne, Detective Heier’s statement, even if
false, would not have rendered Mr. Johnson’s con-
fession involuntary.
We now turn to Mr. Johnson’s second contention: that
the frequency with which he was interrogated suggested
that the police would continue to question him until he
confessed to the shooting. When evaluating whether a
defendant’s confession is voluntary, we certainly may
consider “the repeated and prolonged nature of the
questioning” to which the defendant was subjected. Smith
v. Duckworth, 910 F.2d 1492, 1496 (7th Cir. 1990) (citations
and quotation marks omitted). However, the frequency
with which a defendant was interrogated is only one
of several factors that we consider in our totality-of-the-
circumstances analysis. See Gilbert, 488 F.3d at 791 (noting
that courts may consider, among other things, the
18 No. 08-1695
age, experience, education, background and intelligence
of the accused, the length of the questioning, and
other circumstances surrounding the interrogation when
evaluating whether a confession was voluntarily given).
After reviewing the record, we must conclude that,
although the fact that Mr. Johnson was questioned on
at least four separate occasions 8 before he confessed to
the shooting certainly is relevant and probative on the
issue of the voluntariness of his confession, other
factors weigh against a conclusion that Mr. Johnson’s
confession was coerced. Mr. Johnson has not alleged
that the conditions of his detention were unduly harsh;
the record reflects that Mr. Johnson was offered food,
beverages, cigarettes and short breaks during two of his
interviews. R.35 at 47; R.36 at 30-32. The record further
indicates that Mr. Johnson was informed of his Miranda
rights at the outset of all but one of his interactions with
his interrogators.9 Cf. Haynes v. Washington, 373 U.S. 503,
509-11, 514 (1963) (concluding the defendant’s confession
was involuntary where police refused to allow him to
8
For the purposes of this appeal, we consider the polygraph
examination to constitute an interview.
9
Lieutenant Dubis testified that they did not inform Mr.
Johnson of his Miranda rights at the 6:00 a.m. interview on
October 2 because Mr. Johnson was not considered a suspect
at that time. R.35 at 14-15. However, Mr. Johnson was informed
of his Miranda rights at the beginning of his second interview,
the beginning of his polygraph examination and the beginning
of the interview following the polygraph examination. R.35
at 37, 90-94; R.36 at 25-26.
No. 08-1695 19
make a phone call and did not inform him of his right to
remain silent or his right to consult an attorney). Notably,
one of the interviews that Mr. Johnson takes issue
with—the October 2 interview that lasted from 9:00 p.m.
until 2:47 a.m.—was initiated at Mr. Johnson’s request.
R.35 at 42; R.36 at 72. This fact, which Mr. Johnson does
not address on appeal, casts some doubt on Mr. Johnson’s
claim that he believed that the investigators would con-
tinue to interrogate him until he confessed to the shooting.
In sum, the circumstances surrounding Mr. Johnson’s
confession were not so coercive as to render Mr. Johnson’s
confession involuntary. Although Mr. Johnson was inter-
viewed by detectives on four separate occasions, there is
no evidence that Mr. Johnson was deprived of physical
necessities or prevented from taking breaks during
those interrogations. Also, with the possible exception of
the interview requested by Mr. Johnson, the interviews
were not unduly lengthy. See Ledbetter, 35 F.3d at 1070(considering the fact that the defendant “had been ques-
tioned for a reasonable amount of time” and “had been
allowed the necessary creature comforts” in reaching
its conclusion that the defendant’s confession was volun-
tary); cf. United States v. Hull, 441 F.2d 308, 312 (7th Cir.
1971) (concluding that the defendant’s confession was in-
voluntary when he was subjected to continuous inter-
rogations for nearly twelve hours). Furthermore,
Mr. Johnson is neither too young nor too naive to com-
prehend the meaning of the Miranda warnings that re-
peatedly were given to him; he is an adult who willingly
interacted with his interrogators. In light of these facts,
we conclude that, even if Detective Heier deliberately
20 No. 08-1695
misrepresented the results of the polygraph examination,
the circumstances surrounding Mr. Johnson’s confession
were not so coercive as to render the confession involun-
tary. Cf. Woods v. Clusen, 794 F.2d 293, 297 (7th Cir. 1986)
(concluding that the officers “hindered [the juvenile
defendant’s] ability to make a knowing and voluntary
choice . . . to waive his rights” by arresting the defendant
in his bedroom in the early morning, stripping him of
his clothes, giving him institutional clothing—but not
shoes—and misrepresenting the evidence against him
while making “clearly intimidating statements”).
Assessing all of these facts, we cannot conclude that the
statement by Detective Heier and the frequency with
which Mr. Johnson was interrogated undermined
Mr. Johnson’s free will and induced him to tender an
involuntary confession. Because the confession is not
involuntary when reviewed on a de novo basis, it most
certainly is not involuntary when reviewed under the
deferential standard of AEDPA. Accordingly, we affirm
the decision of the district court.
Conclusion
For the foregoing reasons, the judgment of the
district court is affirmed.
A FFIRMED
3-24-09