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Parrish v. Carroll

filed*fn*: February 17, 1994.

HERMAN PARRISH, PETITIONER-APPELLANT,
v.
MIDGE CARROLL, WARDEN, RESPONDENT, AND A. A. GOMEZ, WARDEN, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Central District of California. D.C. No. CV-89-5288-RSWL. Ronald S.W. Lew, District Judge, Presiding

Before: Fletcher, Poole and Thompson, Circuit Judges.

MEMORANDUM

California state prisoner Herman Parrish appeals the district court's denial of his first federal habeas corpus petition. Parrish argues his convictions are constitutionally flawed because: (1) the state trial court gave erroneous jury instructions; (2) the state trial court improperly admitted into evidence out of court statements he made to police; (3) the prosecutor improperly used peremptory challenges to exclude black persons from the jury; (4) his attorneys at trial and on direct appeal gave him ineffective assistance; and (5) there is insufficient evidence to sustain his conviction.

The district court had jurisdiction under 28 U.S.C. § 2254. We issued a certificate of probable cause to permit Parrish to appeal. 28 U.S.C. § 2253; Fed. R. App. P. 22(b). We have jurisdiction over this timely appeal under 28 U.S.C. §§ 2253 and 2254. We reverse and direct that the writ be granted.*fn1

FACTUAL AND PROCEDURAL BACKGROUND

Ronald Colton's dead body was found near midnight on October 12, 1982 in the garage of a residence in Sylmar, California. Colton's death was caused by gunshot wounds to his head. One of his pants pockets was partially pulled out and his wallet was missing.

Parrish, Majit Jandu, and Kelly Morgan were arrested in November 1982 in connection with Colton's death and apparent robbery. When interrogated by the police, Parrish said that Morgan had asked him to go to the Sylmar residence, where Morgan planned to rob Colton, for the purpose of helping Morgan get away. Parrish also admitted to having been at the murder scene. The three men were charged with murder and robbery. They were tried separately.

At his trial, Parrish took the stand in his own defense. He confirmed being at the murder scene, but denied any involvement in the murder or robbery. Prints left by Parrish's left palm and right little finger were found on the door of the garage where the victim was found. Judith DeGraphereed, Morgan's girlfriend, testified Parrish told her he held the victim while Morgan shot him.

A jury convicted Parrish of first degree murder committed during the commission of a robbery, in violation of California Penal Code § 187, and robbery, in violation of California Penal Code § 211. Parrish was sentenced to state prison for twenty-five years to life for the murder, and the upper base term of five years for the robbery. The latter term was stayed pending completion of service of the sentence for murder, and stayed permanently thereafter.

In May 1986, the California Court of Appeal affirmed Parrish's conviction in an unpublished opinion. In August 1986, the California Supreme Court denied his petition for review. The California Supreme Court also denied, without citation to authority, Parrish's two state habeas petitions.

In September 1989, Parrish filed this petition for writ of habeas corpus in the United States District Court for the Central District of California. In September 1990, the district court, without a hearing, adopted the magistrate Judge's findings and Conclusions and denied Parrish's habeas petition. This appeal followed.

Discussion

We review de novo a district court's dismissal of a petition for habeas corpus. Zimmerlee v. Keeney, 831 F.2d 183, 185 (9th Cir. 1987), cert. denied, 487 U.S. 1207, 101 L. Ed. 2d 888, 108 S. Ct. 2851 (1988). To the extent it is necessary to review district court findings of fact, the clearly erroneous standard applies. Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir. 1991).

State court factual Conclusions are entitled to a presumption of correctness under 28 U.S.C. § 2254(d) (1988). See Collazo v. Estelle, 940 F.2d 411, 415-16 (9th Cir. 1991) (en banc), cert. denied, 116 L. Ed. 2d 776, 112 S. Ct. 870 (1992). This presumption does not attach, however, to a state court's resolutions of mixed questions of fact and law. Hamilton v. Vasquez, 882 F.2d 1469, 1471 (9th Cir. 1989).

Parrish maintains that the state trial court improperly admitted incriminating statements he made to police during custodial interrogation. He argues the police impermissibly continued questioning him after he unequivocally invoked his right to counsel, and the statements he made were involuntary within the meaning of the Fourteenth Amendment's Due Process Clause. We agree.

1. Right to Counsel

"The fifth amendment's prohibition against compelled self-incrimination requires that before a custodial interrogation, a suspect must be advised that he has . . . the right to the presence of an attorney." Miranda v. Arizona, 384 U.S. 436, 479, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966); United States v. Fouche, 776 F.2d 1398, 1404 (9th Cir. 1985) (Fouche I). If the suspect at any time invokes his right to counsel, the interrogation must cease and may not resume unless a valid waiver is obtained subsequent to the suspect's initiation of further communication, exchanges, or conversations with the police or counsel is made available to him. Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981); Minnick v. Mississippi, 498 U.S. 146, 150, 112 L. Ed. 2d 489, 111 S. Ct. 486 (1990).

"On occasion, an accused's asserted request for counsel may be ambiguous or equivocal."*fn2 Smith, 469 U.S. at 95. If a suspect's words, understood as ordinary people would understand them, do not clearly express his desire to deal with the police only through counsel, then further questioning must be limited to clarifying the suspect's intention. United States v. De La Jara, 973 F.2d 746, 750 (9th Cir. 1992); Fouche I, 776 F.2d at 1404 ("Where a suspect makes an equivocal assertion of counsel, the police must cease all questioning, except that they may attempt to clarify the suspect's desire for counsel."). "Questions aimed at clarifying the desire for counsel must be strictly limited to that purpose; they may not be used to elicit incriminating information." Id. at 1405. If clarification reveals that the suspect does not want counsel, the interrogation may continue. Id. Whether the suspect's words constitute a request for counsel is a legal determination which we review de novo. United States v. Oba, 978 F.2d 1123, 1129 (9th Cir. 1992); Robinson v. Borg, 918 F.2d 1387, 1390 (9th Cir. 1990).

At the state court hearing on the motion to suppress Parrish's incriminating statements, Detective Kirk read from a transcript of Parrish's tape recorded police interview, and testified as follows:

Detective Wood stated, "You understand you have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law.

"You have the right to speak with an attorney and have an attorney present during questioning. If you so desire and cannot afford one, an attorney will be appointed for you without charge before questioning.

"Do you understand each of these rights I have explained to you?"

Excuse me -- "I have just ...


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