LaDell Brown v. R. Horell, et al

Filing

FILED OPINION (RONALD M. GOULD, MILAN D. SMITH, JR. and ALGENON L. MARBLEY) AFFIRMED. Judge: ALM Authoring. FILED AND ENTERED JUDGMENT. [7815951]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LADELL DEANGELO BROWN,
Petitioner-Appellant,
v.
R. HORELL, Warden; ATTORNEY
GENERAL OF THE STATE OF
CALIFORNIA,
Respondents-Appellees.





No. 09-16643
D.C. No.
2:07-cv-01994LKK-CHS
OPINION

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted
May 9, 2011—San Francisco, California
Filed July 12, 2011
Before: Ronald M. Gould and Milan D. Smith, Jr.,
Circuit Judges, and Algenon L. Marbley, District Judge.*
Opinion by Judge Marbley

*The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.

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COUNSEL
Mark D. Eibert (argued), Half Moon Bay, California, for the
petitioner-appellant.
David A. Eldridge (argued), Deputy Attorney General, Sacramento, California, for the respondent-appellee.

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OPINION
MARBLEY, District Judge:
Appellant LaDell DeAngelo Brown is a state prisoner seeking a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. A Sacramento County Superior Court jury
convicted Brown in 2005 of first degree murder, attempted
murder, and attempted robbery with enhancements for firearm
use and prior convictions. He was sentenced to life without
the possibility of parole plus an additional term of 74 years to
life. In this appeal, we consider whether the district court
erred in denying Brown’s petition for a writ of habeas corpus.
Brown contends that he is entitled to habeas relief on two
independent grounds: (1) his coerced and involuntary admissions were improperly admitted into evidence at trial; and (2)
the trial court’s exclusion of expert testimony regarding the
interrogation methods used by law enforcement at his interviews prevented him from presenting a complete defense. For
the reasons that follow, we affirm the district court’s denial of
Brown’s petition for a writ of habeas corpus.
I.
A.

BACKGROUND
The Shooting

The following facts, presumed to be correct under 29
U.S.C. § 2254(e), are excerpted from the Court of Appeal of
California’s decision:1
Jaynelle Frank checked into room 106 at the Gold
Rush Inn in Sacramento on Monday, April 8, 2002.
[Brown], the father of Jaynelle’s unborn child, was
staying at the Inn with her. Jaynelle’s younger sister,
Johtell Frank, checked into room 108 at the Gold
1

People v. Brown, No. C050121, 2006 Cal. App. Unpub. LEXIS 5409
(Cal. Ct. App. June 23, 2006).

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Rush Inn on the same day. With Johtell at the Inn
was her boyfriend and [Brown]’s best friend, Dante
Alexander.
The victims, Victor Jones and his wife Cheryl,
checked into room 207 at the Gold Rush Inn early
the following evening, Tuesday, April 9, 2002, at
approximately 5:00 or 6:00 p.m. Prior to meeting
[Brown], Victor purchased and consumed a quantity
of cocaine on G Parkway before returning to the Inn
around 12:00 a.m. on April 9. Victor met [Brown] in
the parking lot at about midnight on April 9 and
bought cocaine from him.
Later, in the early morning hours of April 10,
[Brown] sold Victor more cocaine. Over the next
several hours, Victor purchased approximately $100
worth of cocaine from [Brown] on credit. In
exchange for the extension of credit, Victor allowed
[Brown] to borrow his Kia van, which was on loan
from the dealership. [Brown] left in the van with
Dante and returned around 2:00 or 2:30 a.m. Victor
purchased more cocaine on credit and [Brown] kept
the car keys. When Victor went to [Brown]’s room
between 4:00 and 5:00 a.m. to ask for more cocaine,
[Brown] told him he had no more.
Around 8:00 a.m. on April 10, [Brown] and Jaynelle
accompanied Victor to pick up and cash his paycheck. [Brown] saw Victor’s paycheck which was
over $500. Victor paid [Brown] what he owed for
the cocaine, and [Brown] asked if he could borrow
the van to take Jaynelle to her prenatal appointment.
Victor agreed when [Brown] promised to sell him
more cocaine.
[Brown] took the van, and Victor and his wife stayed
at the Inn to smoke the cocaine. [Brown] checked in

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with Victor from time to time, sold him more
cocaine, and left again with Dante in the van. Victor
received a telephone call from [Brown] around 6:00
p.m. on April 10 informing him that the van had
been stolen. Victor did not believe the story and told
[Brown] to return to the Inn.
When [Brown] returned to the Inn with Dante about
20 minutes later, Victor bought more cocaine. Victor
told [Brown] the explanation about the van was “bullshit” and demanded to know how [Brown] planned
to make things right. When Victor suggested
[Brown] return the money he had already paid for
cocaine, [Brown] gave Victor $20 and a quarter
ounce of cocaine. Satisfied, Victor told [Brown] he
would pay for Jaynelle’s room so [Brown] would not
have to “hustle” that night for the money. Victor
walked with [Brown] and Dante to a liquor store
where Victor bought alcohol for all of them.
Shortly after Victor returned to his room, Dante’s
girlfriend Johtell appeared at his door. She claimed
an interest in the cocaine [Brown] had given Victor
as compensation for loss of the van. Victor verbally
rebuffed Johtell and later complained to Dante about
her conduct. Victor continued to smoke cocaine and
think about how he could get [Brown] to return the
van.
Around midnight, Johtell and Dante came to Victor’s
room and asked him to buy more liquor for them.
Victor agreed to walk to the store, but they insisted
on giving him a ride. Cheryl decided to go along.
Victor emptied his pockets of cash and illegal items
before leaving the room. Dante and Johtell went
downstairs ahead of Victor. Victor heard Jaynelle
say to Johtell, “You know what they about to do?
That’s fucked up.”

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The four left the Inn with Johtell driving Dante’s car,
Cheryl next to her in the front seat, Dante in the back
seat on the driver’s side, and Victor in the back seat
on the passenger side. Instead of driving to the liquor
store, Johtell headed south on Highway 99 and
turned off the freeway at Sheldon Road in Elk
Grove. En route, Johtell ignored Victor’s repeated
demands to pull over and let him get out of the car.
Johtell was driving erratically while talking with
someone on her cell phone. Victor also observed
what he thought was a police car following them. It
flashed its high beams once they left the freeway.
Johtell drove east on Sheldon Road and stopped the
car on a dark, dead-end street. The second car pulled
up behind Dante’s car. Dante stepped out of his car,
turned toward Victor with what Victor described as
a .45-caliber handgun, and said, “Give me everything you got.” Victor gave Dante $12, his wallet,
wrist watch and room key. [Brown] walked up with
an automatic rifle and ordered Cheryl and Victor out
of the car. He demanded to know where the narcotics
were. Victor explained he left the cocaine in the
room. Johtell confirmed that she had seen Victor
empty his pockets into a drawer before they left.
Victor tried to stay in front of Cheryl as they got out
of the car. He noticed a light in a nearby house. Victor began talking loudly and tried to maneuver in the
direction of the house. [Brown] told him to be quiet.
Victor continued to talk, offering to give [Brown]
more money later that day if he let Cheryl leave.
Finally, Victor charged past [Brown] and Dante.
Cheryl was supposed to run the opposite direction.
Dante shot Victor once as he ran, but Victor continued toward the house. Victor then heard both guns
firing and received two more wounds. He was close
to the front door of the house when his foot was shot

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from under him. Victor looked back and saw
[Brown] use the rifle to shoot Cheryl.
Victor broke the windows around the front door of
the house and yelled for help. [Brown] approached
Victor on the porch, holding the handgun Dante had
in the car. [Brown] pointed the gun at Victor’s head.
One of the cars departed, leaving [Brown] behind.
After the gun misfired several times, [Brown] came
close to Victor and said, “You are a lucky mother
fucker.” Victor responded, “You are a dead mother
fucker, you understand.” [Brown] drove away.
Owen Autry, the occupant of the house, was awakened by gunfire at 1:30 a.m., and immediately telephoned 911. While Autry stayed on the line with the
911 operator, Victor yelled that the people who shot
him were in apartments 106 and 108.
Cheryl died at the scene. Based on the size of the
wounds, the pathologist testified the bullet was likely
fired at close range by a .223 assault rifle. Victor suffered four bullet wounds, but survived. He viewed a
photo array six hours after the incident and identified
Dante as the man in room 108 who had the handgun.
He viewed more photos the following day and identified [Brown] as the man in room 106 who had the
rifle. Victor testified at trial.
B.

Brown’s Interrogations

Sacramento County Sheriff’s Detectives Bill Bayles and
Grant Stomsvik picked Brown up on a parole violation on
April 12, 2002. After Brown’s arrest, Detectives Bayles and
Stomsvik interviewed Brown three times. The first interview
occurred on April 12, 2002. On that date, Detective Bayles
advised Brown of his Miranda rights and began questioning
Brown about the homicide in Elk Grove. Brown initially

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denied being at the Gold Rush Inn the week of the homicide
or knowing Victor. The detectives confronted Brown with a
surveillance photo of Brown and Victor together at a 7-Eleven
store, and Brown admitted that he knew Victor, that he spent
time at the Gold Rush Inn, that Victor owed him money for
cocaine, and that he had borrowed and wrecked Victor’s van.
The detectives pushed Brown further to stop lying. They
told him that Dante had already identified Brown as Cheryl’s
shooter and the mastermind of the robbery; Brown denied
these allegations. Brown also denied that he was present at the
scene of the homicide, claiming instead that he was at his
mother’s boyfriend’s house. Then
[t]he detectives told [Brown] they knew he was at
the scene of the shootings. Thereafter, [Brown]
admitted he followed Dante’s car with someone
named Anthony who told him they were going to get
their money back. When they pulled onto a dark
street off Highway 99, everyone got out of the cars
except [Brown]. [Brown] heard gunfire and saw
sparks coming from Dante’s gun. Someone yelled, “I
missed him” or “I hit him” or “He’s still alive.”
[Brown] saw Victor run toward a house, but did not
see anyone chase him. [Brown] never saw the
woman. Anthony got back in the car, made a U-turn,
and dropped [Brown] off at his mother’s boyfriend’s
house.
The detectives continued to accuse [Brown] of lying
about his involvement in the shooting. They told
[Brown] that Victor had identified him as one of the
shooters. [Brown] eventually admitted he made up
the name Anthony and that Sirrano Haywood drove
the car he rode in to the scene of the crime. [Brown]
also admitted he got out of the car with Haywood.
He said he immediately got back into the car because

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he was scared and denied he was involved in the
shooting.
The following exchange occurred near the end of the interrogation:
“DET. STOMSVIK: [W]hat do you want to do now?
You’re involved up to your eyeballs in a murder,
attempt[ed] robbery.
“[BROWN]: I wish I can go home and just lay down
with my—with my girl. [¶] . . . [¶] And hold her
stomach and kiss—and kiss her stomach and talk to
my baby through her stomach.”
Detective Stomsvik did not acknowledge [Brown]’s
reference to Jaynelle and his baby. Instead, Stomsvik
asked if [Brown] was willing to take a polygraph
test. [Brown] stated that he was.
Brown took the polygraph on April 15, 2002, while still in
police custody:
Detective Bayles introduced [Brown] to Jeanie Overall, a polygraph examiner employed by the Attorney
General’s Office. Overall advised [Brown] of his
Miranda rights and explained he could not be forced
to take the polygraph. [Brown] affirmatively agreed
to speak to Overall and take the polygraph examination.
Overall asked [Brown] several questions about his
background. In response to a question regarding his
marital status, [Brown] stated he was excited that his
girlfriend Jaynelle was pregnant with his first child.
He said he “was hoping [he’d] be there to see her
have it.” Overall answered, “That would be nice,”
and went on to another question. Later, when Overall

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asked, “What’s the best thing that’s happened to you
in your life?” [Brown] responded, “Probably my girl
being pregnant.” Overall turned to a different topic.
With respect to the polygraph test, Overall cautioned
[Brown]: “There’s all different types and kinds of
polygraph tests that people can take. The one that
you’re scheduled to take this evening is . . . termed
a specific because it’s dealing with a specific thing
that’s happened. In this case it’s the murder of
Cheryl Jones. . . . [¶] . . . [¶][T]his is the type or kind
of test that this polygraph instrument was originally
built and designed for. It’s at its utmost accuracy and
capability in this type of test. Now due to that, I very
straightforwardly advise everybody that comes in
with me, if you’re not gonna pass your polygraph, do
not take it. As long as everything you tell me about
this case is one hundred percent the truth, you ought
to take the test and show that what you’re saying is
true. . . . If somebody really wants to, quote, beat a
polygraph, the way to do it is stand up, walk out and
don’t take the test.” Overall explained that based on
the results of the polygraph, she would report to the
Sheriff’s Office if she believed [Brown] was telling
the truth. She also confirmed that although her report
became part of [Brown]’s permanent case file, the
polygraph result could not be used in court. Overall
then reiterated, “Now, I’ve been doing homicide
polygraphs for a long time, and when I tell you that
it requires you to be one hundred percent truthful, I
really can’t stress that enough. This thing does not
measure deception in degrees. . . .”
Overall questioned [Brown] about how he got
involved in the homicide, and [Brown] repeated the
story of his innocent presence at the scene of the
shootings. She told [Brown] once more that she

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would “give a report to the people here at the sheriff’s office on [his] truthfulness and [his] honesty.”
During a pretest, [Brown] answered “No” to the following questions: (1) “Did you shoot Cheryl Jones
April the 11th in Elk Grove?” (2) “Did you shoot
anyone in Elk Grove [on] the 11th?” (3) “Do you
know where the gun is located that was used to shoot
Cheryl Jones?” [Brown] responded in the same manner when asked the same questions during the polygraph examination. His responses were the same on
the second and third tests.
Overall informed [Brown] that the polygraph test
showed he was lying when he responded “No” to the
key questions. She continued, “[T]here is no way,
Ladell, with these charts that I can do anything but
report to these detectives here that you’re not telling
the truth about this shooting.” Emphasizing that
[Brown] was involved in “some heavy stuff,” Overall told [Brown], “I wish your life could have been
different, and I still think you can make it different.
. . . I want you to see that—that baby be born. I don’t
know why, but I feel like it’s a boy.” [Brown] confirmed that someone else had told him the same
thing.
Overall urged [Brown] to tell her the truth about
what happened. “I don’t know if you don’t tell me
what the truth is. I’m not a mind reader. . . . You
have a choice you can tell the truth and try to get this
mess straightened out and let me go out there and
talk to those detectives and try to do whatever I can
for you, and I want to tell your side of what happened. I can’t do that if you won’t tell me.” She
offered several possible explanations for [Brown]’s
involvement as a shooter.

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....
[Brown] offered another version of the events. He
said he “was tryin’ to talk to Victor for nothin’ to
happen” and placed himself between Victor and
Cheryl so the two gunmen could not shoot them.
According to this account, Cheryl pushed [Brown],
causing him to stumble. [Brown] ran to the car when
the guns started going off. He repeated he “[d]idn’t
shoot nobody.”
Overall suggested she could pack up and go home.
She told [Brown], The “only reason I’m talkin’ to
you is cuz you got a baby on the way, and I’d like
to see you get to be with that baby, and these [detectives] have got a case they have to work.” [Brown]
said, “I wish I could be there for my baby.” Overall
responded, “I want to see you be there for your baby.
. . . I can’t get your side of what happened out there
if you don’t tell me. Do you want me to go get them?
Do you want to let it go down like this? Or do you
want to do the right thing for yourself, for your girlfriend and for your baby?” [Brown] repeated that he
wanted to “be able to see the baby born.” Overall
said, “Okay. I want—I want that, too. . . . [¶][W]e
need to tell them that. I can’t go out there and talk
to them for you if you’re not going to tell me what
happened.” [Brown] continued to deny he had a firearm or shot Cheryl.
Overall suggested that Victor, a security guard,
might have had a gun or tried to hurt [Brown] in
some way. [Brown] agreed that Victor charged him
and he shot at Victor with the 9-millimeter hand gun
to scare him into stopping. [Brown] added he was
not trying to hit Victor. He maintained someone else
shot Cheryl after she pushed against [Brown]’s
shoulder.

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After admitting that he had shot Victor, [Brown]
said, “This accident is gonna cost me my life.” He
told Overall he had lied because he was scared. He
continued: “Scared for my baby. I want to be there
for my baby. I wish I could go to my baby right now.
. . .” After asking [Brown] if he had seen Jaynelle
since his arrest, she changed the subject and asked if
he wanted the detectives to return.
Overall summarized the results of the polygraph, and
the substance of her interview with [Brown], for
Detectives Bayles and Stomsvik. She indicated,
“[H]e does want to be able to see his baby, and I told
him I felt certain that he is gonna be able to.” Stomsvik responded, “I wouldn’t see why not.” When
Overall left the room, she said: “Ladell, good luck to
you. You keep tellin’ the truth, okay, and you’re
gonna see that baby.”
Before continuing the interrogation, Detective
Bayles confirmed that [Brown] was going to jail for
murder. [Brown] then repeated his story to Bayles
and Stomsvik. He maintained he heard gunshots
when Cheryl pushed him and caused him to stumble.
[Brown] said he tried to shoot at Victor’s legs when
Victor charged at him. He saw Dante do some shooting and “supposed” that Sirrano fired some shots.
[Brown] denied that he or anyone else followed Victor up to the house after he was shot. [Brown] stated
that Dante gave the rifle to Sirrano before they left
the scene. At the end of the interrogation, [Brown]
asked the detectives for a “big favor.” He told them
he wanted to kiss his girl’s stomach and talk to his
baby. Detective Bayles responded, “Well, you know,
you’re probably not gonna get to actually touch your
girl—it’s gonna be a while. . . . We’d be lying if we
told you something different. I don’t think you’re
gonna get any kind of contact visit until this whole

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thing is settled and you’re either out or—or transferred and locked up where you’re gonna be locked
up for, you know, more time. I don’t think you’re
gonna get it at the jail you’re goin’ to here.”
Brown’s third and final interrogation occurred on April 18,
2002, with Detectives Bayles and Stomsvik. After the detectives advised Brown of his Miranda rights, Brown retracted
his admissions of April 15. He denied that he had a gun and
denied shooting either Victor or Cheryl. He claimed that he
gave a false confession because he had heard that Sirrano
Haywood had threatened to shoot Jaynelle. Detective Bayles
told Brown that he did not believe Brown’s retraction, but
Brown persisted. Brown admitted that he knew about the robbery plan in advance of its execution but denied that he had
a firearm. Detectives Bayles again told Brown that he did not
believe Brown’s retraction.
C.

The Suppression Hearing and Trial

Brown’s defense counsel moved to suppress Brown’s April
15, 2002 admission that he shot Victor, as well as the other
statements he made during his three interviews. In support of
his motion, defense counsel presented video and audio recordings of the interviews and the testimony of Dr. Richard Ofshe,
a retired professor of social psychology. Dr. Ofshe testified
about the methods by which modern interrogation techniques
produce false confessions. With respect to Brown’s interrogations, “Ofshe opined that Overall induced [Brown] to admit
he shot Victor accidentally or in self-defense by leading [him]
to believe he would receive leniency.” Dr. Ofshe “did not
offer an opinion on whether [Brown]’s statements were true
or false,” but defense counsel relied upon Dr. Ofshe’s testimony to argue that Brown’s “confession was coerced by
Overall’s promise that [Brown] would be able to see the birth
of his baby if he admitted he shot Victor accidentally or in
self defense.”

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The trial court denied Brown’s motion to suppress because
it found that his admissions were voluntary. As summarized
by the appellate court, the trial court cited several factors
upon which it relied in reaching its conclusion:
First, the court cited Dr. Ofshe’s reference to a study
that showed “the strength of the evidence that the
police bring to bear upon [Brown] is the best predictor of when a guilty person will confess.” Here, the
deputies had talked to Victor and Autry. They told
[Brown] “right up front” that he was going to be
arrested for murder regardless of his statements. Second, [Brown] stated the sole reason he lied about
having a gun and participating in the shooting was
Sirrano’s threat to shoot Jaynelle. [Brown] made no
reference to Overall’s interrogation methods or the
alleged promise of preferential treatment when he
retracted his earlier admissions. Third, the court
found none of the interrogation methods employed
by Overall “were . . . of the type likely to lead to an
untrue statement.”
The government played redacted videotapes of the interviews of April 12, 2002, and April 15, 2002, and the redacted
audiotape of the interview of April 18, 2002, on three of the
five days in which evidence was presented at Brown’s jury
trial in May 2005. The jury also heard Victor’s account of the
shootings. Victor testified that he saw both Brown and Dante
shoot him and that he saw Brown shoot Cheryl with the long
gun.
Defense counsel sought to call Dr. Ofshe to the stand for
questioning regarding interrogation methods that tend to produce false confessions. Although the trial court found that Dr.
Ofshe qualified as an expert, it nevertheless excluded his testimony. Recognizing that “the question was whether the expert
testimony ‘would be helpful to the jurors’ as they assessed the
credibility of [Brown]’s statements,” the court concluded that

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“the reason [Brown] gave for making false statements—that
Sirrano threatened to kill someone close to him—was within
the common experience of a jury.” The defense rested without
presenting any evidence.
The trial court instructed the jury on felony murder as the
only theory of first degree murder. The jury convicted Brown
of first degree murder, attempted murder, and attempted robbery, and the court sentenced Brown to life without the possibility of parole plus an additional term of seventy-four years
to life.
II.

JURISDICTION

We have jurisdiction over this appeal pursuant to 28 U.S.C.
§ 2253 following the district court’s issuance of a certificate
of appealability.
III.

STANDARD OF REVIEW

Brown’s petition for a writ of habeas corpus was filed after
April 24, 1996, and is therefore governed by the AntiTerrorism and Effective Death Penalty Act (“AEDPA”). See
Himes v. Thompson, 336 F.3d 848, 852 (9th Cir. 2003). Under
AEDPA, Brown can prevail on his petition only if he can
show that the state court adjudication “(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
proceeding.” 28 U.S.C. § 2254(d). A decision can be “contrary to” federal law in one of two ways: if it “applies a rule
that contradicts the governing law set forth in [Supreme
Court] cases,” or if it “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court]
and nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000)

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(O’Connor, J., concurring); see also Lockyer v. Andrade, 538
U.S. 63, 73 (2003); Musladin v. Lamarque, 555 F.3d 830, 834
(9th Cir. 2009). A decision involves an “unreasonable application” of federal law “if it correctly identifies the governing
rule but unreasonably applies it to a new set of facts, or fails
to extend a clearly established legal principle to a new context
in a way that is unreasonable.” Himes, 336 F.3d at 852 (internal citations omitted). The application must be “objectively
unreasonable,” and we may only consider our Circuit precedent as “relevant persuasive authority in determining whether
a state court decision is objectively unreasonable.” Id. (internal quotations omitted).
“We review the last reasoned state court opinion,” Musladin, 555 F.3d at 834, and presume that the state court’s factual findings are correct, 28 U.S.C. § 2254(e)(1). We review
de novo the district court’s denial of appellant’s petition for
habeas relief. Musladin, 555 F.3d at 834.
IV.
A.

DISCUSSION

Involuntary Confession

In this appeal, Brown claims that the state trial court violated his constitutional rights when it allowed the government
to introduce his admissions of April 15, 2002, that he had shot
Victor. Brown’s position is that Overall’s promise that Brown
would be free to participate in his child’s birth if only he told
the truth coerced him into making an involuntary confession
and that the state appellate court unreasonably erred in concluding otherwise.
The Court of Appeal of California analyzed the voluntariness of Brown’s admissions under the totality of the circumstances. See Withrow v. Williams, 507 U.S. 680, 693-94
(1993). It concluded that “Overall made no coercive or deceptive ‘promises’ ” and that the record supported the trial court’s
“finding that Overall’s tactics did not overcome [Brown]’s

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exercise of free will.” It found that “[a]t no time did [Overall]
promise [Brown] he would be freed,” and that the fact that
Brown asked Detectives Bayles and Stomsvik at the end of
the interview for the “big favor” of being allowed to see his
girlfriend demonstrated that Brown did not take “Overall’s
statements as a promise he would be released for telling the
truth.” It also relied on the fact that Brown retracted his
admissions without reference to Overall’s tactics.
[1] Involuntary or coerced confessions are inadmissible at
trial, Lego v. Twomey, 404 U.S. 477, 478 (1972), because
their admission is a violation of a defendant’s right to due
process under the Fourteenth Amendment, Jackson v. Denno,
378 U.S. 368, 385-86 (1964). A confession is involuntary if
it is not “ ‘the product of a rational intellect and a free will.’ ”
Medeiros v. Shimoda, 889 F.2d 819, 823 (9th Cir. 1989)
(quoting Townsend v. Sain, 372 U.S. 293, 307 (1963)); see
also Blackburn v. Alabama, 361 U.S. 199, 208 (1960). A
“necessary predicate” to finding a confession involuntary is
that it was produced through “coercive police activity.” Colorado v. Connelly, 479 U.S. 157, 167 (1986). Coercive police
activity can be the result of either “physical intimidation or
psychological pressure.” Townsend, 372 U.S. at 307, overruled on other grounds in Keeney v. Tamayo-Reyes, 504 U.S.
1 (1992); see also Blackburn, 361 U.S. at 206 (“[C]oercion
can be mental as well as physical, and . . . the blood of the
accused is not the only hallmark of an unconstitutional inquisition.”). Whether a confession is involuntary must be analyzed within the “totality of the circumstances.” Withrow, 507
U.S. at 693. The factors to be considered include the degree
of police coercion; the length, location and continuity of the
interrogation; and the defendant’s maturity, education, physical condition, mental health, and age. See id. at 693-94; Yarborough v. Alvarado, 541 U.S. 652, 668 (2004).
[2] The Supreme Court has twice before addressed the
admissibility of confessions extracted through threats or
promises relating to a suspect’s children. In Haynes v. Wash-

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ington, the Court ruled that a written confession was coerced
and involuntary where the police obtained it through the
“threat of continued incommunicado detention” if the suspect
did not confess and the “promise of communication with and
access to family” if he did. 373 U.S. 503, 514 (1963); see also
Hutto v. Ross, 429 U.S. 28, 30 (1976) (per curiam) (holding
that confessions “ ‘obtained by any direct or implied promises, however slight’ ” may be involuntary (quoting Bram v.
United States, 168 U.S. 532, 542-43 (1897)). Similarly, in
Lynum v. Illinois, the Supreme Court found that it was “abundantly clear that the petitioner’s oral confession was made
only after the police had told her that state financial aid for
her infant children would be cut off, and her children taken
from her, if she did not ‘cooperate.’ ” 372 U.S. 528, 534
(1963). The Court held “that a confession made under such
circumstances must be deemed not voluntary, but coerced.”
Id.
[3] Haynes and Lynum demonstrate that threats and promises relating to one’s children carry special force. Interpreting
these cases, the Ninth Circuit has previously concluded that
“[t]he relationship between parent and child embodies a primordial and fundamental value of our society.” United States
v. Tingle, 658 F.2d 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 (1964)].” Tingle, 658 F.2d at 1336.
[4] The record reveals that, as in Haynes, Lynum, and Tingle, Overall coerced Brown into confessing by conditioning
his ability to be with his child on his decision to cooperate
with the police. The connection between Brown’s truthfulness
and Brown’s ability to be with his girlfriend and child was a
major, if not the dominant, theme running throughout Overall’s interrogation. Picking up on Brown’s comment that his
girlfriend’s pregnancy was “the best thing that’s happened to

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[him] in [his] life,” Overall returned again and again to the
subject of the pregnancy before Brown confessed:
OVERALL: . . . Now, you were involved in this
shooting, and I know you were. . . . I
wish your life could have been different, and I still think you can make it
different. Nobody can make it different but you. I want you to see that—
that baby be born. I don’t know why,
but I feel like it’s a boy.
BROWN:

It is. How you know?

OVERALL: I don’t know. I just feel that way.
BROWN:

Somebody else told me that.

OVERALL: Yeah. I feel like it—I feel like it’s a
boy, and I want to see you be with that
baby.
....
OVERALL: . . . You have a choice[:] you can tell
the truth and try to get this mess
straightened out and let me go out
there and talk to those detectives and
try to do whatever I can for you, and
I want to tell your side of what happened. I can’t do that if you won’t tell
me. That baby growing in your girlfriend right now needs you. It’s gonna
need you a whole lot (unintelligible)
and I want to see you be able to be
with that child and have a life, but
only the truth is going to take you to

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that place. What happened that night
out there?
....
OVERALL: And I know you know the right thing
to do. I know you know it, and I
believe you want to do the right thing.
BROWN:

Just want to be there for my baby.

OVERALL: I want you to be there for your baby,
and what’s gonna take you there is the
truth. The truth is what’s gonna let you
be there for your baby, and I want that
baby the first time he—
BROWN:

That’s all I want.

....
OVERALL: . . . You’re either gonna keep on lyin’,
or you’re gonna tell the truth. I have to
go give these detectives the results.
BROWN:

They’re gonna think I’m lyin’, too.

OVERALL: Sure, they are, and I can’t imagine
what would keep you from telling the
truth with that little baby boy waitin’
to be born.
BROWN:

I’m never gonna see my baby, and it
hurts. It hurts. You don’t know how I
feel.

OVERALL: I think you are going to see your baby.
I firmly believe that.

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....
OVERALL: . . . Only reason I’m talking to you is
cuz you got a baby on the way, and I’d
like to see you get to be with that
baby, and these guys have got a case
they have to work.
BROWN:

I wish I could be there for my baby.

OVERALL: I want to see you be there for your
baby . . . . I can’t get your side of what
happened out there if you don’t tell
me. Do you want me to go get them?
Do you want to let it go down like ths?
Or do you want to do the right thing
for yourself, for your girlfriend and for
your baby?
BROWN:

Yes, I do.

OVERALL: Then, please, do that.
BROWN:

I want to be able to see the baby born.

OVERALL: Okay. I want—I want that, too. I want
that, too
....
BROWN:

No, my life is over.

OVERALL: No. It’s not over. Life is not over.
BROWN:

(Unintelligible) my baby.

OVERALL: Yes, you will. Yes, you will.

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BROWN:

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I’m never gonna be able to hold my
baby.

OVERALL: Yes, you will.
BROWN:

No.

OVERALL: You will. He ran at you; is that what
he did? I need you to tell me, LaDell.
BROWN:

Yes, ma’am.

Brown then admitted to having shot Victor twice with the
handgun. Overall questioned him further about the details of
that night before bringing Detectives Stomsvik and Bayles
back in and summarizing her interview with Brown:
OVERALL: And he does want to be able to see his
baby, and I told him I felt certain that
he is gonna be able to.
STOMSVIK: I wouldn’t see why not.
[5] Overall expressly conditioned Brown’s ability to be
with his child on his compliance with her questioning, saying
“I want to see you be able to be with that child and have a life,
but only the truth is going to take you to that place.” Likewise, she said, “I want you to be there for your baby, and
what’s gonna take you there is the truth. The truth is what’s
gonna let you be there for your baby . . . .” Rather than heed
the warnings in Haynes, Lynum and Tingle to tread cautiously
around the subject of familial attachments, Overall “deliberately prey[ed] upon,” Tingle, 658 F.2d at 1336, Brown’s
expression of his overwhelming desire to witness his child’s
birth. In light of Brown’s limited education (he had not completed high school), relative youth (twenty-one years), and
lengthy custodial interrogations, the totality of the circumstances reveal that Brown’s admissions were involuntary.

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[6] Were this case on direct review, the above analysis
would likely lead us to conclude that Overall’s tactics were
coercive under Haynes, Lynum and Tingle and that his admissions should therefore have been suppressed. The question
before us on habeas review, however, is not whether we
believe the state court’s determination to be erroneous—
which we do—but whether it is unreasonable in light of
clearly established Supreme Court law. See Williams, 529
U.S. at 411 (“[A] federal habeas court may not issue the writ
simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.”). As the
Supreme Court has recently noted, “even a strong case for
relief does not mean the state court’s contrary conclusion was
unreasonable.” Harrington v. Richter, 131 S. Ct. 770, 786
(2011). It is this exceedingly high bar that Brown fails to
meet.
[7] Other courts considering the effect of leveraging a suspect’s familial affections on the voluntariness of that suspect’s
confession have not unanimously concluded that Haynes and
Lynum compel a rule that exploiting an accused’s relationships to induce cooperation renders the resulting confession
involuntary. In United States v. Mendoza-Cecelia, the Eleventh Circuit upheld the admission of a confession obtained
after customs officials told the defendant that “something can
happen to your family” if he did not confess. 963 F.2d 1467,
1475 (11th Cir. 1992), abrogated on other grounds by Coleman v. Singletary, 30 F.3d 1420 (11th Cir. 1992). Similarly,
in United States v. Charlton, the Sixth Circuit affirmed the
trial court’s admission of a confession obtained after police
told the defendant that they had arrested his son and that, if
he wanted to keep his son “out of the case,” the defendant
would have to confess. 565 F.2d 86, 88 (6th Cir. 1977). The
Sixth Circuit reasoned that, absent any other indica of coercion, the defendant’s confession was merely a rational and
voluntary decision to protect his son. Id. at 89; see also
United States v. Jones, 32 F.3d 1512, 1517 (11th Cir. 1994)

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(per curiam) (finding “no coercion” in law enforcement’s
comment to defendant that his girlfriend “would continue to
be considered a suspect” unless defendant explained her participation); United States v. Ponce Munoz, 150 F. Supp. 2d
1125, 1135-36 (D. Kan. 2001) (concluding that “officers’ discussion of realistic penalties for cooperative and noncooperative defendants does not render the defendant’s confession . . . involuntary,” and admitting confession obtained
after police told defendant that they had probable cause to
arrest defendant and his wife, leaving defendant’s child in
custody of the state). But see United States v. Finch, 998 F.2d
349, 356 (6th Cir. 1993) (finding confession to be involuntary
where police made baseless threats to arrest members of suspect’s household because “threats to arrest members of a suspect’s family may cause a confession to be involuntary”).
[8] These cases reveal that lower federal courts do not
always interpret Lynum to mean that threats or promises relating to one’s children or family warrant special caution, as we
have in Tingle, but only that such threats or promises may be
considered as part of the totality of the circumstances. In light
of these differences, we cannot say that there is “no possibility fairminded jurists could disagree that the state court’s
decision conflicts with [Supreme Court] precedents.” Harrington, 131 S.Ct. at 786. We therefore affirm the district
court’s denial of Brown’s habeas corpus petition on the
ground of the admission of involuntary statements.
B.

Right to Present a Complete Defense

[9] Brown next contends that the exclusion of Dr. Ofshe’s
testimony violated his constitutional right to present a complete defense. See Crane v. Kentucky, 476 U.S. 683, 690
(1986). The trial court excluded Dr. Ofshe’s testimony under
California Evidence Code § 801, which states that experts
may only be permitted to testify on matters “sufficiently
beyond common experience that the opinion of an expert

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would assist the trier of fact.” The appellate court upheld that
ruling.
This case is analogous to Moses v. Payne, 555 F.3d 742
(9th Cir. 2009). There, a defendant on trial for murder
attempted to introduce the testimony of an expert witness who
specialized in depression and who would have testified that
the victim exhibited a number of risk factors for suicide, supporting the defense that the defendant was not guilty of murder because the victim killed herself. Id. at 749. The state trial
court did not dispute the witness’s qualification as an expert
but nevertheless excluded the testimony under Rule 702 of the
Washington Rules of Evidence as within the province of the
jury, as cumulative, and as more prejudicial than probative.
Id. at 750. The defendant challenged that ruling in state appellate court, lost, and sought habeas relief in federal district
court. Id. The district court denied the petition, and we
affirmed. Id. We considered the defendant’s challenge to the
state court’s discretionary exclusion of the expert in light of
Supreme Court precedent on the intersection of constitutional
rights and state evidentiary rules, concluding as follows:
[T]he Supreme Court’s cases have focused only on
whether an evidentiary rule, by its own terms, violated a defendant’s right to present evidence. These
cases do not squarely address whether a court’s exercise of discretion to exclude expert testimony violates a criminal defendant’s constitutional right to
present relevant evidence. Nor do they clearly establish “a controlling legal standard” for evaluating discretionary decisions to exclude the kind of evidence
at issue here. Therefore, the state appellate court’s
determination that the trial court’s exercise of discretion to exclude expert testimony under Rule 702 did
not violate Moses’s constitutional rights cannot be
contrary to or an unreasonable application of clearly
established Supreme Court precedent.

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Id. at 758-59 (citations omitted).
[10] Between the issuance of Moses and the present, the
Supreme Court has not decided any case either “squarely
address[ing]” the discretionary exclusion of evidence and the
right to present a complete defense or “establish[ing] a controlling legal standard” for evaluating such exclusions.
Brown, therefore, cannot—as the petitioner in Moses could
not—show that the state appellate court’s ruling was either
contrary to or an unreasonable application of clearly established Supreme Court precedent. We, therefore, affirm the
district court’s denial of Brown’s petition for a writ of habeas
corpus for the violation of his right to present a complete
defense.
V.

CONCLUSION

[11] Under the “highly deferential standard” that we must
apply to the state appellate court’s determinations under
AEDPA, Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997),
Brown’s petition for a writ of habeas corpus was correctly
denied. Neither the state court’s rulings on the constitutionality of the admission of Brown’s confession nor the constitutionality of the exclusion of Dr. Ofshe’s testimony are
contrary to or an unreasonable application of clearly established Supreme Court law. Accordingly, we AFFIRM.