March v. Sexton
Filing
88
MEMORANDUM OPINION. Signed by District Judge Kevin H. Sharp on 6/18/13. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
PERRY A. MARCH,
Petitioner,
v.
DAVID SEXTON, Warden,
Respondent.
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Case No. 3:12-cv-272
Judge Sharp
MEMORANDUM OPINION
Petitioner Perry A. March was convicted and sentenced by the Criminal Court for Davidson
County, Tennessee in Nashville after a jury trial in 2006, and is presently an inmate at Northeast
Correctional Complex in Mountain City, Tennessee. His pro se petition under 28 U.S.C. § 2254 for a writ
of habeas corpus was initially filed in the United States District Court for the Eastern District of
Tennessee, but was transferred to this district. This Court has jurisdiction. 28 U.S.C. § 2241(d).
For the reasons set forth herein, the Court finds that, under the demanding standard governing
the review of a § 2254 habeas petition, the petitioner is not entitled to relief.
I.
BACKGROUND AND PROCEDURAL HISTORY
A Davidson County jury found petitioner Perry March guilty of the offenses of second-degree
murder, destruction of evidence, and abuse of a corpse, and judgment was entered against him on
August 17, 2006. March was sentenced as a Range I, standard offender to twenty-five years’
imprisonment for the murder conviction, five years for the destruction-of-evidence conviction, and two
years for the abuse-of-a-corpse conviction. The trial court ordered the petitioner to serve his sentences
for the latter two convictions consecutively to the murder sentence, and the sentence on the murder
conviction was ordered to be served consecutively to a twenty-four year sentence entered in a different
case for conviction of conspiracy to commit first-degree murder, for an effective sentence of fifty-six years.
March was denied relief on direct appeal. State v. March, No. M2007-00053-CCA-R3-CD, 2011 WL
2
332327 (Tenn. Ct. Crim. App. Jan. 27, 2011). The Tennessee Supreme Court denied March’s request for
permission to appeal on July 14, 2011. March did not seek post-conviction relief in the state courts.
On February 3, 2012, March filed his pro se petition for the writ of habeas corpus (ECF No. 1) in
the United States District Court for the Eastern District of Tennessee. The case was transferred to this
Court as the appropriate venue. Shortly thereafter, the Court conducted a preliminary examination of the
habeas petition and determined that it stated colorable claims for relief. Accordingly, the Court entered an
order (ECF No. 8) directing the respondent to answer, plead or otherwise respond to the petition. Rule 4,
Rules Gov’g § 2254 Cases. The respondent filed his answer to the petition on July 10, 2012 (ECF No.
33), along with a copy of the underlying state-court record (ECF Nos. 34–41, 45). March filed a reply brief
on January 7, 2013. (ECF No. 78.) He also submitted a motion to amend his petition (ECF No.77) to omit
grounds 4, 5, and 6, as March now concedes that these claims challenged state evidentiary rulings that
are not reviewable by this Court, and a sentence-enhancement that was not exhausted in the state
courts. March also submitted a motion for judgment on the pleadings (ECF No. 79), in which he simply
states that he does not seek an evidentiary hearing and asks the Court to render judgment in his favor on
the strength of the written record.
Upon consideration of the petition, the answer, and the expanded record, the Court agrees with
the petitioner that an evidentiary hearing is not needed in this matter. The Court will dispose of the
petition as the law and justice require. Rule 8(a), Rules Gov’g § 2254 Cases.
II.
FACTUAL BACKGROUND
The Tennessee Court of Criminal Appeals, in the opinion affirming the judgment of the trial court,
summarized the factual history in the state courts as follows:1
The murder victim in this case was Defendant’s wife, Janet March. Carolyn Levine,
the victim’s mother, testified that Defendant and the victim met while they were both
students at the University of Michigan. The couple married on June 14, 1987, and were
married when the victim disappeared on August 15, 1996. Ms. Levine identified
Defendant at trial as her daughter’s husband. Ms. Levine said that the victim, who was
thirty-three years old when she disappeared, was five feet, three or four inches tall and
1
State appellate court findings of fact can constitute factual findings in a habeas action. See, e.g.,
Girts v. Yanai, 501 F.3d 743, 749 (6th Cir. 2007) (“‘In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a
factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden
of rebutting the presumption of correctness by clear and convincing evidence.’” (quoting 28 U.S.C. §
2254(e)(1))).
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weighed approximately one hundred pounds. At trial, Ms. Levine identified the victim from
a photograph.
After graduation, Defendant and the victim moved to Nashville so that Defendant
could attend Vanderbilt Law School. The Levines paid Defendant’s law school tuition and
supported the couple for three years while Defendant was in school. After graduation,
Defendant joined a Nashville law firm. In July 1995, the victim and Defendant moved into
a newly built house located at 3 Blackberry Road in Forrest Hills.
Ms. Levine said that the victim’s son, Samson March, was born on August 27, 1990,
and her daughter, Tzipora March, was born on May 17, 1994. Ms. Levine described the
victim as a “very attentive” and “very nurturing” mother. Ms. Levine and the victim talked
on a daily basis, and the victim never left town without providing Ms. Levine her itinerary
and other pertinent information concerning the children’s care and schedules.
Ms. Levine stated that she first became aware that the victim and Defendant were
undergoing marital problems in 1993, but she did not feel the problems were
insurmountable. Ms. Levine said that she had a good relationship with Defendant, and
both Defendant and the victim came to her individually for advice. The couple went to
marriage counseling in 1991 or 1992, and Defendant began to see a psychiatrist. The
victim joined Defendant during his individual counseling sessions in 1996.
Ms. Levine said that the couple’s situation deteriorated further. Defendant told Ms.
Levine in the spring of 1996 that he was afraid the victim was going to divorce him and
take the children away from him. The victim and Defendant began arguing in front of the
children, and Ms. Levine told Defendant that he needed to leave the residence because
the children were upset by the couple’s arguments. Defendant found a house to rent, but
he did not immediately move out of the marital residence. Ms. Levine said, however, that
Defendant stayed in a hotel for approximately six to eight nights before the victim
disappeared.
Ms. Levine planned to accompany the victim to her appointment with a divorce
attorney on Friday, August 16, 1996. However, around midnight on August 15, 1996,
Defendant called the Levines and told them that the victim had left the house after an
argument. Ms. Levine said that to her knowledge, the victim had never done that before.
Ms. Levine told Defendant to call her when the victim returned.
Ms. Levine talked to Defendant several times by telephone on August 16, 1996.
During one conversation, Defendant said that one of his son’s schoolmates had arrived
for a play date, and Ms. Levine instructed Defendant to let the child play with Samson.
Defendant told Ms. Levine that he had explained to the children and the children’s parttime babysitter that the victim had left early that morning to work on a large art project.
Defendant told Ms. Levine that the victim had taken two small shopping bags, a
small, gray suitcase, her passport, and $1,500 with her when she left. The Levines drove
to the airport to search for the victim’s vehicle but were unsuccessful. Defendant initially
said that the victim was wearing khaki shorts and a navy short-sleeved, collarless top
when she left, but later told Ms. Levine that the victim had changed into blue jeans before
leaving.
Defendant said that the victim had handed him a typewritten note entitled “Janet’s
12-day vacation” when she left which contained a list of chores for Defendant to do while
the victim was gone. Ms. Levine stated that the victim often made lists, but they were
always hand-written. When she helped Defendant put the children to bed on August 16,
1996, Ms. Levine noticed a yellow-lined legal pad by Defendant’s computer in his office
which contained a handwritten list of similar chores. Ms. Levine said that the words “two
weeks” in Defendant’s handwriting were circled at the top of the list. Ms. Levine stated
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that the victim never used capital letters in her notes, and she dated the notes at the top
of the page. Ms. Levine stated that the typed note entitled “Janet’s 12 day vacation” used
capitalizations and was dated at the bottom.
Ms. Levine initially believed Defendant’s explanation for the victim’s absence. By
Sunday night, however, she grew increasingly concerned because the victim had never
left the children before without telling someone where she was going. The Levines
wanted to contact the police, but Defendant and his brother, Ron March, convinced them
to wait for twelve days. Ms. Levine agreed because she still believed the victim would
return, and Ms. Levine did not want to embarrass her by getting the police involved.
The victim had planned a birthday party for her son for Sunday, August 25, 1996, and
the invitations had been mailed before the victim’s disappearance. Ms. Levine found it
“unbelievable” that the victim would not return for her son’s birthday party which went on
as planned. Ms. Levine stated that Samson started school on the following Monday,
August 26, 1996, and the victim had planned to take cupcakes to her son’s classroom on
his birthday on August 27, 1996. Ms. Levine found it “inconceivable” that the victim would
miss these events in her child’s life.
Ms. Levine said that Defendant’s father, Arthur Marsh, who lived in Mexico, came to
Nashville to attend Samson’s birthday party, but he left the next day for Chicago.
Defendant explained, “My dad has a big mouth, he tells everything.” Ms. Levine said that
around this time, Defendant also said, “[T]hat f–––ing Janet has ruined my life.” Ms.
Levine was “shocked and horrified” because Defendant had never used this kind of
language in front of her before.
The Levines told the police about the victim’s disappearance on August 29, 1996.
The victim’s grey Volvo was found backed into a parking space at the Brixworth
Apartments on September 7, 1996. At trial, Ms. Levine identified the vehicle as the
victim’s from a photograph. The victim’s purse, three dresses, two pairs of shorts and a
child’s car seat were in the vehicle. A gray suitcase which Defendant told Ms. Levine the
victim was carrying when she left was not in the car.
Ms. Levine stated that Defendant’s demeanor and attitude changed after the victim’s
vehicle was found. Ms. Levine was concerned about the children during this period, and
she and Defendant spoke with a child psychologist for guidance in answering the
children’s questions about the victim. Defendant was angry, however, when Ms. Levine
spoke to one of Samson’s teachers, and he told Ms. Levine not to call the school again.
Ms. Levine stated that Defendant took the children to Chicago for Rosh Hashana on
Saturday, September 14, 1996. Arthur March remained in Nashville because Defendant
said that it was too expensive for his father to travel to Chicago. Defendant and the
children returned home on September 15, 1996, but Defendant would not let Ms. Levine
see the children. Defendant later moved to Chicago with the children. Ms. Levine said
that she next saw the children in Chicago in December 1996, after she and Mr. Levine
petitioned the court for grandparent visitation rights. During a second court proceeding
concerning visitation, Ron March, who represented Defendant, informed the trial court
that Defendant had moved to Mexico with the children. Ms. Levine testified that she and
her husband, as well as the trial judge and the children’s guardian ad litem, were all
surprised by this announcement.
Ms. Levine said that a memorial service for the victim was held on November 17,
1996, but Defendant did not attend. Ms. Levine stated that the victim primarily used a
Visa credit card, and Defendant used a MasterCard credit card. Neither credit card was
used by the victim after her disappearance, but Defendant used both the Visa and the
MasterCard after August 16, 1996. Ms. Levine stated that Defendant owned a mountain
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bike at the time of the victim’s disappearance and described Defendant “as an avid
mountain biker.”
Ms. Levine said that Defendant moved his personal property to Chicago, and the
victim’s personal items were stored in the garage of the Blackberry Road house after it
was sold. Ms. Levine began to sort through the items in early 1997. One of the movers
found an envelope with the logo of a company with whom the victim did business, and
with the victim’s name handwritten on the flap of the envelope. Ms. Levine stated that the
envelope contained two typewritten letters. After briefly reading a portion of one of the
letters, Ms. Levine called the police.
John Ritchie testified that he worked for a cabinet company in August 1996. On
August 15, 1996, he and John McAllister installed two butcher block counter tops in the
victim’s residence. The two men arrived at the victim’s house at approximately 4:00 p.m.
Mr. Ritchie said that a Volvo and a Jeep were parked in the driveway. Mr. Ritchie talked
with the victim, who knew Mr. Ritchie’s family, while the counter tops were being
installed. The victim asked the men to also tighten the kitchen faucet, and Defendant,
who had entered the kitchen through the back door, handed Mr. McAllister a pair of
pliers.
Deneane Beard testified that she cleaned the March residence from 1994 until 1996
while she was in nursing school. Ms. Beard said that she normally worked one day a
week, either in the morning or in the afternoon, depending on her school schedule. The
victim left Ms. Beard handwritten notes outlining the chores that needed to be done that
day. Ms. Beard was scheduled to work at the March residence on Friday, August 16,
1996. Defendant called Ms. Beard before she left for work to find out what time she would
arrive at the residence and told Ms. Beard that the victim had gone to California on a
business trip. Ms. Beard arrived at the house between 8:00 a.m. and 8:30 a.m. and found
that the house had already been cleaned.
Ms. Beard stated that she continued to work for Defendant until approximately
September 16 or 17, 1996. On her last day, police officers knocked on the front door. Ms.
Beard let the officers into the house and then continued cleaning. Ron March, who was at
the house that day, asked her to “hurry things up.” Mr. March had a telephone
conversation and then told Ms. Beard she should leave. Mr. March escorted Ms. Beard to
her car while holding on to her arm. Ms. Beard said that Arthur March was not present
that day although she had seen him at the house before.
Marissa Moody testified that in 1996 her son attended the same preschool as
Samson March. On August 15, 1996, Ms. Moody and the victim arranged a play date for
the two boys for the following day. Ms. Moody arrived at the victim’s house on August 16,
1996, between 9:30 a.m. and 10:00 a.m., and Samson answered the door. Ms. Moody
did not see the victim, but Defendant came out of his office in response to the door bell.
Ms. Moody said that Defendant was surprised because he did not know about the play
date. Ms. Moody stated that a rolled up oriental rug was in the middle of the floor in the
entry hall, and Samson was jumping up and down on the rug. Ms. Moody picked her son
up at approximately 2:00 p.m., but Defendant was not home.
Laura Zinker testified that she met the victim in 1988, and the two women became
close friends. The victim visited Ms. Zinker in the summer of 1996 and told Ms. Zinker
about her marital problems. On cross-examination, Ms. Zinker said that she never saw
any sign of physical abuse, but on redirect examination, Ms. Zinker stated that she had
observed instances where Defendant verbally abused the victim. Ms. Zinker said that
Defendant was “very critical” of the victim and demeaning of her intelligence.
Laurel Rummel testified that she had known the victim since she was eight years old.
Ms. Rummel spoke to the victim by telephone on the morning of August 15, 1996, and
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the victim sounded hurried and “a little distracted.” Defendant called Ms. Rummel at
approximately 10:00 p.m. on August 15, 1996, and told Ms. Rummel that the victim had
packed a bag and left the house. Ms. Rummel had previously made an appointment to
meet Defendant on August 16, 1996, to discuss the purchase of carpeting for his new law
office. Ms. Rummel stated that Defendant kept the appointment but “was very troubled,
very worried about where [the victim] was, when she would come home, and he seemed
pale and shaken up.”
Diane Saks testified that she had known the victim all of Ms. Saks’ life. She described
the victim as a protective and loving mother. Ms. Saks said that Defendant called her
after he moved to Chicago. During one conversation, Defendant asked Ms. Saks if she
thought he had killed the victim. Ms. Saks was surprised by the question. Defendant
asked Ms. Saks if she could believe that he put the victim in the back of his vehicle, leave
the children home alone while they were sleeping, and then return and pretend “like
nothing ever happened.” Ms. Saks’ husband took the receiver from her and asked
Defendant not to call any more.
Dr. Thomas W. Campbell, a psychiatrist, testified that Defendant was his patient from
November 1992 until March 1995, and then again from July 1996 to September 1996. Dr.
Campbell said that the victim accompanied Defendant to some of the 1996 counseling
sessions, and he last met with both Defendant and the victim on approximately August 5,
1996. Dr. Campbell described the session as “volatile,” and he suggested that Defendant
and the victim try a trial separation “so they could calm down.”
On cross-examination, Dr. Campbell said that in one of the last sessions, the victim
asked Defendant during a heated exchange if he had told Dr. Campbell about the
incident at his former law firm. Dr. Campbell stated that the incident “was not a big deal
on [Defendant’s] radar screen,” but the victim was very angry when she asked the
question. On redirect examination, Dr. Campbell stated that Defendant told him that he
had to leave his former law firm because of conflict with someone in the firm. Defendant
did not tell Dr. Campbell any of the details surrounding the incident.
Dr. Stacey Ann Goodman testified that she met the victim and Defendant at the
University of Michigan in 1981, and she and another friend arranged a date between
Defendant and the victim. Dr. Goodman and the victim became roommates in the spring
of 1982. Dr. Goodman stated that she frequently rode with the victim in the victim’s
vehicle and that she never saw the victim back into a parking space. Dr. Goodman
moved to Nashville in 1987 for her residency at Vanderbilt University Medical Center and
resumed her friendship with the victim and Defendant. Dr. Goodman was interviewed by
the media about the victim’s disappearance in January 1997. Defendant telephoned Dr.
Goodman from Chicago either the day of or the day after the interview. Dr. Goodman
stated that Defendant was very angry. He screamed and swore at her and told Dr.
Goodman that he would “get” her when he came to Nashville. Dr. Goodman said that she
was scared and upset after the telephone conversation, and she filed a report with the
Metro Nashville Police Department about Defendant’s threat.
Ella Goldshmid testified that she worked as a part-time babysitter for the victim’s
children for approximately six years before the victim’s disappearance. The victim always
notified Ms. Goldshmid when she planned to travel, and Ms. Goldshmid would help Ms.
Levine care for the children in the victim’s absence. Ms. Goldshmid said that when the
victim went away, she left “very explicit instructions” concerning the children’s care and
schedules which were either handwritten or dictated to Ms. Goldshmid to write down.
Ms. Goldshmid said that in August 1996 she worked for the victim on Wednesdays
and Fridays. The victim was not acting like herself when Ms. Goldshmid arrived at the
victim’s residence on August 14, 1996. Ms. Goldshmid described the victim’s face as
“grey, stone-like.” Ms. Goldshmid said that the victim would usually chat with her for a few
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minutes after she arrived. On August 14, 1996, however, the victim told Ms. Goldshmid
that she was very busy and needed to work on the computer. The victim went into her
office and closed the door, and Ms. Goldshmid did not see the victim for the remainder of
the day. Ms. Goldshmid said that the victim did not normally use the computer, and it was
the first time Ms. Goldshmid had ever seen the victim work on the computer all day.
Ms. Goldshmid arrived for work on August 16, 1996, between 9:30 a .m. and 10:30
a.m. Defendant told Ms. Goldshmid that the victim had flown to California to visit her
brother, Mark Levine. Ms. Goldshmid stated that it was unusual for the victim to leave
town without telling her. Ms. Goldshmid said that a rolled up rug was blocking the door
leading to the kitchen. She did not know where the rug came from, and she never saw it
again after that day. Ms. Goldshmid last stayed with the March children on September 8,
1996. Defendant did not tell Ms. Goldshmid that he was moving to Chicago with the
children.
Tim Mason, a detective with the Metro Nashville Police Department, testified that he
was notified on September 7, 1996, that the victim’s Volvo had been found in the parking
lot of the Brixworth Apartments. The locked Volvo was backed into a parking spot at the
rear of the apartment complex approximately two hundred yards from the main road.
Detective Mason identified the victim’s vehicle from a photograph at trial.
David Miller testified that in 1996 he was a detective with the Metro Nashville Police
Department assigned to the investigation of adult missing persons. Detective Miller said
that Carolyn and Lawrence Levine came to the police department on August 29, 1996, to
report the victim’s disappearance. Detective Miller performed routine searches of area
hospitals and other locations, the victim’s credit cards, and the victim’s bank accounts,
but he did not discover any information concerning the victim’s whereabouts. Detective
Miller took Defendant’s statement on September 10, 1996, at the Levines’ residence.
Detective Miller stated that Defendant appeared nervous. Detective Miller advised
Defendant of his Miranda rights and told him that he had the right to refuse to consent to
a search of his residence. Defendant told Detective Miller that he was an attorney and
understood his Miranda and Fourth Amendment rights. Defendant wrote out his
statement by hand. In his statement, Defendant said that on August 15, 1996, he and the
victim had a conversation after the children had gone to bed. Defendant stated that the
victim grew “frustrated” and “upset,” but he remained calm. Defendant called a local hotel
and booked a room, but the victim said that “she had a different idea tonight.” The victim
typed something on the computer and then went upstairs. When she came downstairs,
she had three small bags with her. The victim handed Defendant her “12-Day Vacation
Note” and told him to sign it which Defendant did. The victim said something like “Your
turn, see ya, [sic],” and left the house.
On September 16, 1996, Detective Miller told Defendant’s attorney that he intended
to execute a search warrant for Defendant’s computer on the following day. Detective
Miller arrived at Defendant’s residence on September 17, 1996 and discovered that the
hard drive from Defendant’s computer had been ripped out.
Brad Corcoran, a detective with the Metro Nashville Police Department, testified that
he processed the victim’s Volvo. The exterior of the Volvo was covered with dirt, dust,
and pollens, there were cobwebs in the wheels, and rust was present on the disk brakes,
all of which indicated that the Volvo had not been moved for a significant period of time. A
purse containing the victim’s identification was found in the pocket of the left front door,
and a child’s car seat was in the backseat behind the driver’s seat. A black suitcase
containing clothes and a canvas bag containing toiletry items were also in the Volvo. The
front passenger seat was pushed back, and the driver’s seat was positioned closer to the
steering wheel. A fifty-dollar bill was in the glove compartment, and the purse contained
eleven dollars in cash, various credit cards, and the victim’s passport. A pair of white
shoes was on the floor in front of the driver’s seat. Detective Corcoran also processed
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Defendant’s Jeep on September 12, 1996, and found two fibers and a hair in the
backseat. Detective Corcoran lifted latent fingerprints from both vehicles. On crossexamination, Detective Corcoran said that the Jeep did not appear to have been cleaned
before it was processed, but he detected an order of some type of cleaner or disinfectant
when he opened the rear door.
Kim Garbler testified that she was an employee of the private investigation company
that was hired by Mr. Levine on September 7, 1996, to assist in the investigation of the
victim’s disappearance. Ms. Garbler interviewed Defendant at the beginning of the
investigation and thought it unusual that he referred to the victim in the past tense. Ms.
Garbler began interviewing the residents of Brixworth Apartments to determine if anyone
had seen the Volvo in the apartment complex’s parking lot. Ms. Garbler stated that
Defendant was angry when he learned what she was doing. Defendant telephoned Ms.
Garbler and demanded that she fax him a list of everyone she had spoken to and what
they had said by the end of the day. Defendant then hung up the telephone.
Peter Rodman, a flight attendant for an international airline company, testified that he
lived at Brixworth Apartments in 1996, but he was frequently out of town. Mr. Rodman
said that he returned home at approximately 1:00 a.m. on August 16, 1996. As he pulled
into the parking lot, Mr. Rodman noticed that a man, wearing a jogging suit, was slowly
walking a bicycle down the middle of the parking lot. Mr. Rodman parked his vehicle and
opened the back door to retrieve some items. When he turned around, he noticed that
the man was “frozen in place” and appeared shocked. Mr. Rodman said that he was
approximately ten to twelve feet from the man, and the parking lot was well lit. Mr.
Rodman saw Defendant’s photograph in a news article about the victim’s disappearance
in February 1997. Mr. Rodman called Detective Mike Smith with the Metro Nashville
Police Department and told him about the incident. Mr. Rodman identified Defendant at
trial as the man with the bicycle.
Travis West, a manager for Cumberland Transit, a bicycle shop in Nashville, testified
that a mountain bicycle differed from a road bicycle in that a mountain bicycle had a
smaller frame and wheels and weighed between twenty-five to thirty-two pounds. Mr.
West said that the bicycle shown with Defendant in the photographs introduced as
exhibits 3A and 3B was an older model mountain bike. Mr. West said that he was able to
put his own mountain bicycle inside his Honda Civic by removing the front wheel with a
“quick release” mechanism. Mr. West stated that it took between approximately five and
fifteen seconds to remove the front wheel and the same amount of time to reattach the
front wheel to the bicycle. Mr. West also said that a mountain bicycle could be placed in
the front seat of his parent’s Volvo, which was similar in size to that of the victim’s
vehicle, after the front wheel was removed. Mr. West stated that the dirt reflected in the
photograph of the victim’s front passenger floorboard appeared to be consistent with a
tire or part of a bicycle resting there.
Bill Pridemore, a detective assigned to the homicide section of the Metro Nashville
Police Department, testified that he submitted certain fibers and a hair sample found in
Defendant’s Jeep to the Federal Bureau of Investigation (“FBI”) for analysis. Detective
Pridemore also submitted a hair sample found in Defendant’s Jeep and hair samples
from the victim’s hairbrush to Orchid Cellmark Labs for DNA testing. The parties entered
an agreed stipulation into evidence stating that the mitochondrial DNA analysis of the hair
sample recovered from the cargo area of Defendant’s Jeep was consistent with the
victim’s DNA profile.
Karen Korsberg testified that she is employed as an examiner in the FBI’s trace
evidence unit in the laboratory in Quantico, Virginia. Ms. Korsburg [sic] examined three
samples of debris collected from the Defendant’s Jeep for the presence of carpet fibers.
Ms. Korsburg explained that carpet fibers are generally courser or larger than fibers in
clothing and may have specific shapes. Ms. Korsburg said that the sample taken from the
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Jeep’s front trunk area contained blue, grey, and green round carpet type fibers; a
reddish orange trilobel carpet type fiber; a pink trilobel carpet type fiber, and an off-white
carpet type fiber. The sample taken from the back of the Jeep’s trunk area contained a
reddish orange trilobel carpet fiber, a pink trilobel carpet fiber, and a light grey or blue
trilobel carpet fiber. The sample taken from the Jeep’s front and back seats contained
reddish orange trilobel carpet-type fibers, light blue trilobel carpet-type fabrics, a grey,
round carpet type fiber, and an off-white trilobel carpet type fabric.
Annette Noel Hall testified that in 1996 she was employed by WSMV Channel 4, an
NBC affiliate. Excerpts from Ms. Hall’s 1996 interview of Defendant were played for the
jury. In those excerpts, Defendant denied that he and the victim fought during the evening
of August 15, 1996, and described it as a “relatively benign evening.” Defendant denied
removing the hard drive from the computer located at his residence and said it was as
much “an enigma” to him as it was to the police. Defendant said that he would not allow
the investigating officers to interview his son because Samson was asleep when the
victim left the house on August 15, 1996, and did not know anything about the victim’s
disappearance.
Redina Friedman testified that she practices family law in Chicago, Illinois and is a
certified child representative with the Cook County Court System. Ms. Friedman was
appointed guardian ad litem to the March children in March 1999 after the Levines filed a
petition requesting visitation rights with the children. Ms. Friedman interviewed the
children at their home in Chicago and was concerned with the absence of any
photographs or other reminders of the victim. Ms. Friedman said that Defendant opposed
granting the Levines visitation rights because he was concerned that they would allow the
police and the news media to interview his son. Defendant told Ms. Friedman that
Samson “knew absolutely nothing” about the victim’s disappearance, and that he did not
see or hear anything on the night she left. Ms. Friedman stated that the children had a
close relationship with their grandparents, and despite Defendant’s concerns, Ms.
Friedman filed a written report with the court recommending that visitation be granted.
After the report was filed, Defendant became “openly hostile” to Ms. Friedman and told
her that “he could disappear in Singapore and no one would ever see them again.”
Mark Levine, the victim’s brother, testified that he returned home from California
when he learned of the victim’s disappearance. One day when Defendant was at his
parent’s home, Mark Levine asked Defendant if he could see the note entitled “Janet’s
twelve-day vacation” which was saved on Defendant’s computer. The two men left in
separate vehicles, and Defendant drove away first at a fast rate of speed. Mark Levine
followed Defendant but fell behind when Defendant ran a red light. When he arrived at
Defendant’s house, the door was locked. Mark Levine rang the door bell several times
before Defendant opened the door. Defendant had already turned on the computer.
While reading “Janet’s 12-day vacation” note, Mark Levine noticed another document in
the computer which appeared to be a list by the victim of incidents where Defendant
mistreated her. The list was six pages long, single-spaced, and with no paragraph
indentations. Defendant initially said that Mark Levine could print off a copy of the
document. Mark Levine said that he did not know how to print from Defendant’s
computer. Defendant did not explain how to use the print function, and Mark Levine never
obtained a copy of the list.
Mark Levine said that he, his parents and Defendant were sitting on the Levines’
patio when Detective Miller arrived shortly after the victim’s disappearance had been
reported to the police. Mark Levine stated that Defendant “just turned white when he saw
that car and he started shaking, just overwhelmingly shivering, because I remember he
tried to stand up twice and fell back in his chair twice he was shaking so much.”
Defendant asked Mark Levine to call his brother, Ron March. Mark Levine delayed
placing the call and then left a message on Ron March’s answering machine. On cross-
10
examination, Mark Levine acknowledged that the computer showed that the “12-day
vacation note” was saved at 8:15 p.m. on August 15, 1996.
Leigh Reames testified that in 1991 she worked as a paralegal in the same law firm
as Defendant. Ms. Reames stated that she received three anonymous letters which
contained sexual references. Ms. Reames turned the letters over to her supervisor, and,
after an internal investigation, it was determined that Defendant had written the letters.
Ms. Reames felt uncomfortable working for the firm and resigned. An out-of-court
settlement agreement was reached in which Defendant agreed to pay equal monthly
payments until the forty-eighth installment when a balloon payment of $12,500 was to be
paid. Ms. Reames stated that she never received the balloon payment which was
scheduled to be paid in early 1996. Instead, she received a letter from Defendant dated
August 13, 1996, and postmarked August 16, 1996, in which Defendant told Ms. Reames
that he would be able to make the balloon payment in October 1996. Ms. Reames
testified that the two typewritten letters found in the envelope among the victim’s
possessions by Ms. Levine in early 1997 were the originals of the second and third letters
she had received from Defendant in 1991. Ms. Reames stated that letters she received in
1991 were only copies of the originals.
Jon Jones testified that he represented the Levines in litigation involving the property
of the victim’s estate. Mr. Jones took Defendant’s deposition in October 1996 in
connection with this civil litigation. A redacted video of the interview was introduced as an
exhibit and played for the jury at trial. In his interview, Defendant generally relayed the
same information contained in his statement to the police. Defendant acknowledged that
the victim was upset with him on August 15, 1996, but said it was just “normal tension.”
Defendant stated that he did not believe that his prior contact with Leigh Reames was a
problem on August 15, 1996. Defendant said that the victim knew about the incident and
the settlement agreement. Defendant said he believed he and the victim last discussed
the issue in June or July 1996, including Defendant’s plan to pay off the balance of his
debt. Defendant acknowledged that he executed a will in September or October 1996 in
which he changed the beneficiary from the victim to the children and appointed his
brother, Ron March, as administrator and guardian of the children.
Michael Levine, the victim’s first cousin, testified that he served as the victim’s and
Defendant’s insurance agent prior to the victim’s disappearance. In October 1994, the
Marches purchased a $250,000 term policy on the victim’s life with Defendant as
beneficiary. Defendant also had a life insurance policy in the face amount of $400,000
with the victim as beneficiary. In January 1997, Michael Levine received a copy of a letter
which Defendant had sent to the insurance company asking that Michael Levine be
removed as his insurance agent. Michael Levine said that the beneficiary of the victim’s
life insurance policy was changed from Defendant to the victim’s estate, with the children
as contingent beneficiaries, by the probate court, and the insurance proceeds were paid
in trust to the probate court in 2003.
Sherri Lee, a beautician, testified that she cut both the victim’s and Defendant’s hair
in 1996. Ms. Lee said that she was cutting the victim’s hair in July 1996 when Defendant
entered the salon. He approached the victim, and the victim seemed nervous “and she
sort of [cowed] away a little.” Ms. Lee had never observed the victim act that way around
Defendant. Ms. Lee said that Defendant had an appointment scheduled for August 22 or
August 23, 1996. Ms. Lee did not know the victim was missing at that time. Ms. Lee went
to greet Defendant who was accompanied by a woman. Defendant said, “Janet is not
here but her best friend so and so [sic] . . . is.” Ms. Lee could not remember the woman’s
name.
Jose Alberto Sandoval Pulido testified that he had practiced law in Guadalajara,
Mexico since 1998. Mr. Pulido, his client, Samuel Chavez, and Defendant had a business
meeting in Mexico in 2001. Defendant became very angry with Mr. Pulido and Mr.
11
Chavez toward the end of the meeting, and Mr. Chavez and Defendant traded insults. Mr.
Pulido stated that Defendant “said that if we did not help him he would do away with us
the way he did with his wife.” Mr. Pulido and Mr. Chavez left the meeting.
A videotape of Arthur March’s deposition which was taken before trial was played for
the jury. In his deposition, Mr. March testified that he had entered a plea of guilty in
federal court to solicitation to commit murder. Mr. March acknowledged that the Levines
were the intended victims of the charged offense. Mr. March was sentenced to eighteen
months confinement followed by three years of supervised probation in exchange for his
truthful testimony at Defendant’s murder trial. Mr. March said that he arrived in Nashville
three or four days after the victim disappeared to help Defendant with the children and to
attend Samson’s birthday party. When he arrived in Nashville, Defendant asked him to
dispose of his computer’s hard drive and another component of the computer. Mr. March
threw the hard drive away in a wooded area, and the other component in a dumpster.
Defendant then asked his father to help him dispose of the victim’s remains. Mr. March
said that he bought a shovel and a bottle of Clorox at a hardware store near Interstate 65.
He and Defendant drove to a road near a construction site on property previously owned
by Sharon Bell. Mr. March got out of the car, and Defendant drove away. Mr. March
followed Defendant’s directions by walking ten or fifteen yards and turning left and found
the victim’s remains in a leaf bag in the spot described by Defendant. Mr. March brushed
the dirt off the top of the bag and closed it. He pulled the bag down the hill and waited for
Defendant by the side of the road. Defendant drove up, and Mr. March and Defendant
put the victim’s remains in the trunk. Mr. March stated that he saw some bones in the
bag, and the bag weighed approximately fifty or sixty pounds.
Defendant drove north toward Chicago. Defendant stopped at a motel near Bowling
Green, Kentucky and Mr. March paid for a room with Defendant’s cash. Defendant told
his father that he was tired and laid down on the bed. Mr. March took Defendant’s car
keys and drove to the other side of Bowling Green. He looked for a creek but could not
find one that was deep enough to hide the victim’s remains. Mr. March pulled to the side
of the road as the sun began to rise and noticed a large pile of brush. He cleared away
three holes in the brush, and he placed the victim’s clothes in the first hole, the victim’s
remains in the second hole, and the trash bag in the third hole. Mr. March then drove
back to the motel, and he and Defendant returned to Nashville. Mr. March said that he
and Defendant never discussed the incident again.
Regarding the solicitation of the murder of the Levines, on cross-examination, Mr.
March acknowledged that Mr. Farris, whom he knew as “Bobby Givings,” telephoned him
in Mexico. Mr. March said that Defendant told him that Mr. Farris was “a friend who
needed some help.” Mr. Farris used code words during the first telephone call so that Mr.
March would know that Defendant had approved the call. Mr. March initially said that it
was his idea to murder the Levines. Subsequently, he stated that Mr. Farris suggested
the plan. Mr. March said that he never discussed with Defendant the details of his
telephone conversations with Mr. Farris. Mr. March acknowledged, however, that Mr.
Farris told him to send information concerning their conversations to Defendant’s sister in
Chicago who would download the messages and mail them to Defendant. Mr. March
acknowledged that he and Mr. Farris discussed the Levines’ schedule, and the plan for
Mr. Farris to come to Mexico after the offenses were committed. Mr. March said that he
understood from Defendant that he, Mr. March, was to support Mr. Farris in the
commission of the offenses.
The taped telephone conversations between Mr. March and Mr. Farris were
introduced as exhibits at trial and played for the jury. The two men discussed the daily
schedules of Defendant’s children and the Levines, the purchase of a gun to commit the
offenses, the type of gun to use, and the plan for Mr. Farris to live with Mr. March in
12
Mexico after the offenses. Mr. March warned Mr. Farris to “wear thin surgeon’s gloves,”
and told him, “You do not take them off at all.”
Fletcher Bailey Long testified that he represented Arthur March after his indictment in
Tennessee for conspiracy to commit first-degree murder, and his indictment in federal
court for conspiracy to commit interstate murder-for-hire. Mr. Long said that he and Mr.
March were discussing a possible settlement agreement on February 1, 2006, when
Defendant entered the room. Defendant said, “Dad, don’t roll on me, I’m not going to roll
on you.” Mr. Long said that Defendant held out his jail jumpsuit and said, “We will wear
this as a badge of honor, a badge of honor.”
Dr. William M. Bass, a professor emeritus of the University of Tennessee, was
allowed to testify as an expert in the field of forensic anthropology. Dr. Bass explained
that various factors affect the rate of a body’s decomposition including temperature,
exposure to sun, and the place the body was buried. Dr. Bass was provided a
hypothetical situation in which the body of a one hundred pound, five feet, three inches
tall woman is placed in a large leaf bag, open on one end, which is then deposited in a
wooded area, lightly covered with dirt, leaves, or debris and not removed for
approximately thirty-nine days. Dr. Bass stated that based on those conditions, the
decaying process would start on the fifth day and last between fifteen to twenty days. Dr.
Bass said that the body would be a skeleton by the end of the third or fourth week, and
the bones would weigh between ten and fifteen pounds.
Robert Armstrong, the co-owner of a tire store in Nashville, testified that he sold a set
of Michelin tires to Defendant on August 21, 1996, for Defendant’s Jeep Cherokee.
Before he rang up the sale, Mr. Armstrong inspected the Jeep and discovered that the
tires “were in extremely good shape.” Defendant told Mr. Armstrong that he wanted
Michelin tires instead of the ones currently on the Jeep. Defendant told Mr. Armstrong
that he did not want to keep the old tires.
Andrew Saks, a friend of Defendant and the victim, testified that Defendant asked Mr.
Saks to help him move on September 18, 1996. Mr. Saks said that Defendant “was very
business like and somewhat aggravated” during the move. Mr. Saks said that
Defendant’s comments “that he wanted to ‘F’ [sic] the Levines and ‘F’ [sic] the Nashville
police” were “very disturbing.” Mr. Saks stated that Defendant did not take up his offer to
help Defendant search for the victim.
Robert Heller testified that he has known Defendant since October 1993. In 1997,
Defendant asked Mr. Heller to critique a manuscript Defendant had written. The
manuscript, which was introduced as an exhibit at trial, portrayed the investigation of the
murder of a young, black-haired woman.
Russell Nathaniel Farris testified that he was currently housed in the Davidson
County Criminal Justice Center on three counts of attempted first degree murder, one
count of aggravated robbery, and one other felony offense not identified in the record. Mr.
Farris acknowledged that he had four prior convictions of theft, one conviction for
facilitation of robbery, one conviction for reckless endangerment, and one misdemeanor
theft conviction. Mr. Farris agreed that he was facing a significant amount of time in
confinement if convicted of the pending charges.
Mr. Farris said that he was arrested on his current charges at the end of April 2005
and transferred to the Special Management Unit on the fourth floor of the Criminal Justice
Center at the end of May. Defendant arrived on the fourth floor in August 2005. Mr. Farris
said that Defendant came over to talk to him on Defendant’s first night in the unit.
Defendant asked Mr. Farris about prison life, and Defendant talked about living in
Mexico. Mr. Farris stated that Defendant’s erroneous belief that Mr. Farris had been
charged with first degree murder was because of a computer error.
13
Mr. Farris said that Defendant would talk to him through a crack in Mr. Farris’s cell
door during Defendant’s recreation period. After numerous conversations, Mr. Farris said
that Defendant asked him to kill Carolyn and Lawrence Levine. Defendant told Mr. Farris
that he would pay his bond so that Mr. Farris could be released from jail. Defendant
intended to raise money for Mr. Farris’s bond by selling property in Mexico or possibly
through a cash advance for the publication of his manuscript.
Mr. Farris stated that he and Defendant talked on a daily basis for approximately one
month. Mr. Farris became concerned that he would be charged with conspiracy, and he
told his attorney and mother about his conversations with Defendant. Mr. Farris’s attorney
scheduled a meeting with police officers and the district attorney general’s office after
which Mr. Farris agreed to record his conversations with Defendant. Mr. Farris recorded
several conversations with Defendant in which the murder of the Levines was discussed.
Mr. Farris then told Defendant that he was going to be released on bond. Instead, Mr.
Farris was taken to the Williamson County jail. The tape of the recorded conversations
was entered as an exhibit at trial and played for the jury.
Before Mr. Farris’ transfer, Defendant wrote down a list of code words Mr. Farris was
to use when he contacted Arthur March, and gave Mr. Farris Mr. March’s telephone
number in Mexico and his e-mail address. Defendant wrote the Levines’ address at the
bottom of the page. After his transfer to Williamson County, Mr. Farris called Arthur
March in Mexico approximately five times concerning the plan to murder the Levines.
On cross-examination, Mr. Farris said that when he was supposedly ready to commit
the murders, he would tell Arthur March that he was ready “to buy the BMW.” Arthur
would relay the information to his daughter in Chicago who would then e-mail the
information to Defendant. Mr. Farris said that he used the name, “Bobby Givings”, when
he spoke to Arthur March. Defendant told Mr. Farris, however, that Mr. Farris was to
postpone killing the Levines if Defendant got word to Mr. Farris through Arthur March that
he was “not ready to sell.” Defendant said that it was important for both him and Mr.
Farris to be in agreement on the timing of the offenses.
Cornelius King testified that he was arrested in Nashville on October 19, 2005, for
first degree murder, and he was housed in the Special Management Unit on the fourth
floor of the Davidson County Criminal Justice Center. Defendant’s cell was next to Mr.
King’s cell. Defendant talked to Mr. King when Defendant was released from his cell for
recreation. Defendant talked about his children, his father, and living in Mexico. During
one conversation, Defendant told Mr. King that he and the victim had argued over
Defendant’s infidelity. Defendant said that the victim told him that she was going to obtain
a divorce and “take everything.” Defendant told Mr. King that he “was not going to allow it
to happen.” The argument escalated into a physical altercation, and Defendant said that
he struck the victim on the head with a wrench. Defendant told Mr. King that he would win
his case because he had burned the victim’s body and poured the ashes in the lake.
In January 2006, Mr. King was moved to the third floor but was shortly returned to the
fourth floor after a confrontation with his co-defendant. Mr. King said that Defendant was
suspicious of him after Mr. King returned to the Special Management Unit. Defendant
asked Mr. King if he had returned to the fourth floor to elicit more incriminating evidence
about Defendant. Mr. King wrote down the substance of the prior conversations with
Defendant about the victim’s death and passed the note to his lawyer. Mr. King said that
Defendant asked him to testify in court against another prisoner, Reno Martin, and
Defendant would tell him what to say. Mr. King refused. Defendant then filed a grievance
against Mr. King alleging extortion, and Mr. King was moved off the fourth floor.
Reno Martin testified that in October 2005, he was housed at the Criminal Justice
Center in the Special Management Unit on the fourth floor following his arrest on a drug
charge. Mr. Martin said that his cell was next to Defendant’s cell, and Mr. Farris’ cell was
14
on the other side. Mr. Martin and Defendant became friends. One day, while the men
were taking their recreation on the roof, Mr. Martin noticed that Defendant was “very
agitated.” Defendant had attended a court proceeding earlier that day concerning the
custody of his children. Defendant told Mr. Martin that “it was times like this that he was
glad that he wasn’t [sic] out with a gun.” Mr. Martin stated that Defendant also said “that it
should have been them that he had taken care of instead of . . .” Defendant stopped
talking before he finished his sentence and “lost his expression on his face.” Mr. Martin
stated that Defendant “went completely pale, like he couldn’t [sic] believe what he just
said to me.” Mr. Martin said that Defendant “kind of had the deer in the headlight look.”
Mr. Martin told federal officers that he believed that Defendant had hired Mr. Farris to
kill the Levines. Mr. Martin said that Mr. Farris and Defendant were having private
conversations and acting “very secretive.” Defendant and Mr. Farris would stop talking if
anyone walked by. On one occasion, Mr. Martin overheard Defendant ask someone in an
agitated voice on the telephone why some money had not been transferred. Defendant
hung up and placed another call. Defendant gave the person on the other end an account
number and said that he was to be sure that the money got transferred.
Mr. Martin and Defendant discussed Mr. Farris’ release on bond. Defendant said that
he thought Mr. Farris might show up for one court date, but he did not think that Mr.
Farris would attend any court dates after that. Defendant said that there was “no telling
what [Mr. Farris] might do once he got out and what he might say [Defendant] put him up
to.” Mr. Martin thought that Mr. Farris was relaying information about Defendant to the
FBI although he had no basis for his suspicions. When he told Defendant, Defendant
“was very distraught.” After Defendant learned about Mr. Farris’ cooperation with the
investigating officers about the conspiracy to murder the Levines, Defendant asked Mr.
Martin to say that he had never seen Defendant and Mr. Farris communicate with each
other while Mr. Farris was housed on the fourth floor.
Kevin Carroll, an investigator for the Davidson County Sheriff’s Department and a
task force officer with the FBI’s Violent Crime and Gang Task Force in Nashville, testified
that he participated in the investigation of the conspiracy to kill Carolyn and Lawrence
Levine. Investigator Carroll arranged for two digital tape recorders to be placed into
Nathaniel Farris’ cell on October 6, 2005. Investigator Carroll recovered the digital tapes
from Mr. Farris during the evening of October 6, 2005. Mr. Farris was then transferred to
the Williamson County jail.
Investigator Carroll explained that inmates housed in the Special Management Unit
were on “house alone/rec alone” status which meant that Defendant was not allowed out
on recreation at the same time as the other inmates. Investigator Carroll said that the
fourth floor was under twenty-four hour surveillance, and a redacted copy of the
surveillance videotape for the twenty-four hour period from October 6, 2005 to October 7,
2005, was introduced as an exhibit. The video tape shows Defendant walking up and
down the corridor between the two rows of cells and then approaching Mr. Farris’ cell. A
second surveillance videotape, showing Defendant’s interaction with Mr. King, was
introduced as an exhibit and played for the jury.
Kenneth Sena, a supervisory special agent with the FBI assigned to the Guadalajara,
Mexico office, testified that he conducted a surveillance of Arthur March on October 27,
2005, in connection with the investigation of the conspiracy to kill Carolyn and Lawrence
Levine. Agent Sena stated that Mr. March left his home that day at approximately 12:30
p.m. and arrived at the Guadalajara International Airport at approximately 1:05 p.m. At
approximately 3:00 p.m., Agent Sena approached Mr. March and asked Mr. March why
he was at the airport. Agent Sena said that Mr. March appeared “physically shaken” and
“turned pale.” Mr. March sat down, and Agent Sena gave Mr. March time to catch his
breath. Mr. March said that he was at the airport to meet a friend named “Bobby Givings.”
15
Agent Sena informed Mr. March that “Mr. Givings” had arrived at the airport but was
being detained by immigration officers.
Pat Postiglione, a detective with the Metro Nashville Police Department, testified that
he and Detective Bill Pridemore escorted Defendant from Los Angeles to Nashville on
August 12, 2005, after Defendant’s arrest in Mexico on the murder charge. During the trip
to the airport and the flight itself, Detective Postiglione said that Defendant indicated that
he wanted to talk. Detective Postiglione told Defendant that he understood that
Defendant was an attorney, and told Defendant that he had no intention of interrogating
him on the trip, and that Defendant was under no obligation to speak to him. Defendant
said that he appreciated the information, but then began to talk. Defendant initially denied
killing the victim but said that “he wanted to close this chapter in his life,” and “his
attorneys would be contacting the police very soon.”
Defendant asked Detective Postiglione about the State’s evidence against him and
whether the victim’s body had been found. Defendant asked Detective Postiglione to
contact the district attorney general in charge of the case over the weekend. Defendant
said he would enter a plea of guilty to the victim’s death in exchange for a sentence of
between five and seven years. Defendant said, “Prior to the Janet incident, I have not
been involved in any other criminal-type activity.” Detective Postiglione informed
Defendant that he was not authorized to enter into any plea negotiations, but Defendant
continued to talk about the case during the approximately three-hour flight. Detective
Postiglione said that Defendant mentioned a potential sentence of between five and
seven years on several occasions. Defendant asked general questions about medium
and minimum security prisons and prison life. Defendant said that he would be “100
percent honest” if a settlement agreement could be reached. Detective Postiglione told
Defendant that he could not answer for the District Attorney’s office, but he would relay
the terms Defendant wanted out of a potential settlement agreement. Defendant also
asked hypothetically whether a person would face a second degree murder charge if the
death was accidental. Defendant told Detective Postiglione that “he intensely loved
Janet,” but she was not the angel portrayed in the media.
Detective Postiglione subsequently received information that Mr. Farris had certain
information concerning Defendant. Mr. Farris disclosed Defendant’s plan to kill Carol and
Lawrence Levine during a meeting on October 4, 2005. Detective Postiglione verified that
Mr. Farris was housed next to Defendant’s cell and that Mr. Farris had placed a
telephone call to Mexico on Defendant’s behalf. Detective Postiglione said that the fourth
floor’s surveillance videotape showed lengthy conversations between Defendant and Mr.
Farris. Mr. Farris agreed to digitally record any conversations with Defendant which were
later downloaded to a compact disc. The compact disc was introduced as a exhibit [sic]
and played for the jury.
Detective Postiglione stated that Mr. Farris agreed to place five telephone calls to
Arthur March on October 12, 14, 20, 25 and 27, 2005. On October 27, 2005, Mr. Farris
told Mr. March that he had murdered the Levines and that he was at the Houston
International Airport waiting for his flight to Guadalajara, Mexico. Mr. Farris asked Mr.
March to pick him up at the airport. The tapes of the recorded telephone conversations
between Arthur March and Mr. Farris were introduced as an exhibit and played for the
jury.
Detective Postiglione said that Defendant’s residence on Blackberry Road was
approximately 4.8 miles from the Brixworth Apartments. A demonstration mountain
bicycle ride from Defendant’s residence to the Brixworth Apartments took approximately
thirty minutes.
Sharon Bell testified that Defendant represented her in 1994 during a real estate
transaction. Ms. Bell and her husband, Fred Zimmerman, purchased approximately one
16
hundred acres of undeveloped land on Hillsboro Road north of Old Hickory Boulevard.
Ms. Bell said that Defendant reviewed the original plat for the property and physically
inspected the property on at least one occasion. The property was purchased and divided
into lots. Ms. Bell stated that she talked with Defendant frequently concerning the
progress of the property’s development. Ms. Bell accepted an offer to purchase Lot No. 2
on September 4, 1996, and the closing was scheduled for October 8, 1996.
The State rested its case-in-chief, and Defendant presented his defense. Robert L.
Jackson testified that he had been practicing law since 1965 exclusively in the area of
family law including divorces. Mr. Jackson said that Defendant scheduled an appointment
with him for August 27, 1996. Mr. Jackson stated that a copy of the list entitled “Janet’s
12-day Vacation” was in his file.
Kyle P. Sowell, the chief deputy clerk of the Davidson County Probate Court, testified
that Arthur March filed a pleading in the probate court in connection with the probate of
the victim’s estate on July 30, 1999. The parties entered an agreed upon stipulation that
“this pleading alleged in part that Larry Levine killed Janet March, hid his crime
completely, and has attempted to deflect the blame from himself and onto his [Arthur’s]
son, Perry.” On cross-examination, Mr. Sowell said that the pleading was neither verified
nor notarized, and the issues raised in the pleading were not addressed by the probate
court before the case was closed.
David Roh testified that he had been a tire salesperson for approximately twentyseven years at the same establishment as Robert Armstrong. Mr. Roh said that he sold
Defendant four tires for his Jeep Cherokee on August 21, 1996. Mr. Roh stated that it
was the store’s policy to tell a potential buyer whether or not new tires were actually
needed. Mr. Roh said that he did not remember having that conversation with Defendant.
The parties entered an agreed upon stipulation that Defendant leased an apartment
in University Square Apartments from Dr. Robert Maddox on August 17, 1996.
Corporal Steve Howard testified that he was a Special Management Unit Officer on
the fourth floor of the Criminal Justice Center in 2005. Corporal Howard stated that
Cornelius King was housed on the fourth floor from October 21, 2005, until January 6,
2006. On one day during that period, Mr. King asked Corporal Howard if he could move
to a different cell because there was a ghost in his cell.
Sergeant Paul Roberts, another supervisor with the Special Management Unit,
testified that on one occasion, the faucet in Mr. King’s cell was stuck so that the water ran
continuously. Sergeant Roberts said that the sink could be accessed from outside the
cell. Sergeant Roberts fixed the faucet and then turned the water on and off repeatedly to
make sure that it would not stick again. Sergeant Roberts stated that Mr. King became
very excited, and Sergeant Roberts explained that he was working on the plumbing to the
cell. On cross-examination, Sergeant Roberts stated that Mr. King calmed down when he
found out that Sergeant Roberts was the one turning the water on and off.
Corporal Alicia McArthur testified that she worked in the Special Management Unit on
the fourth floor of the Criminal Justice Center. Corporal McArthur stated that in March
2006 Defendant filed a complaint against Mr. King after which Mr. King was moved to a
different location. On cross-examination, Corporal McArthur said that, according to
Defendant’s complaint, Mr. King had threatened to have other inmates harm Defendant if
Defendant did not give Mr. King his apple pie. Corporal McArthur acknowledged that the
threat could not have actually been carried out because Defendant was on “house
alone/rec alone” status. Corporal McArthur stated that the substance of the threat was
not investigated because no disciplinary report was filed. Corporal McArthur
acknowledged that Mr. King was not moved on the day of the reported threat.
17
Sergeant Sheila Stinson with the Davidson County Sheriff’s Department testified that
she investigated Mr. King’s alleged threat against Defendant. Sergeant Stinson
determined that Mr. King needed to be moved because Defendant said that Mr. King had
threatened to bodily harm him. On cross-examination, Sergeant Stinson stated that her
investigation was limited to talking with Mr. King and Defendant. Sergeant Stinson
acknowledged that no inmate would have been able to harm Defendant because of his
“house alone/rec alone” status.
A video taped interview of Samson March by a news reporter in May 2000 was
entered as an exhibit at trial and played for the jury. In his statement, Samson said that
on August 15, 1996, his mother came into his bedroom, gave him a good-night kiss, and
told him that she would be back soon. Samson stated that she had two suitcases with her
and was wearing a white shirt and brown velvet slacks. Samson said that he went to his
bedroom window and waved at the victim as she drove away, and the victim waved back.
The State called the following rebuttal witnesses. Carolyn Levine testified that only
the rooftop of a vehicle leaving the house was visible from Samson’s second story
bedroom. Ms. Levine stated that Samson had never before said that the victim had told
him goodbye on August 15, 1996, or that the victim left the house with a suitcase.
Kim Abbington-Scott testified that she was Samson Levine’s kindergarten teacher in
1996. Ms. Abbington-Scott said that Samson was very sad on the first day of school on
August 26, 1996. Samson told Ms. Abbington-Scott that his mother had left, and he did
not get to tell her good-bye before she left.
Ralla Klepak testified that she was appointed to represent the March children in court
proceedings in Chicago. Ms. Klepak stated that Samson told her that he did not know
where his mother was, and that the last thing he heard on the night she left was his
mother and father arguing downstairs after he had gone to bed. When he went
downstairs the next morning, his mother was gone. Ms. Klepak described Samson as
“very traumatized and sad.”
March v. State, 395 S.W.3d 738, 745–61 (Tenn. Ct. Crim. App. 2011), perm. appeal denied (Tenn. July
14, 2011).
II.
DISCUSSION
The issues raised in March’s petition, as amended,2 are as follows:
1.
That the admission of the petitioner’s statements made in conversations with police on
August 12, 2005, during his transport from Los Angeles to Nashville, violated the petitioner’s Fifth
Amendment rights under Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny.
2.
That admission of the petitioner’s statements made in conversations with police on
August 12, 2005, during his transport from Los Angeles to Nashville, violated the petitioner’s Sixth
Amendment right to counsel.
2
As stated above, the petitioner has filed a motion to amend his petition to dismiss Grounds 4, 5,
and 6 set forth in the original petition, which address evidentiary rulings and sentence enhancement
under state law. The Court therefore will not address those grounds for relief. The petitioner continues to
pursue Grounds 1, 2, 3, and 7.
18
3.
That admission of evidence of jailhouse interactions between the petitioner and Russell
Nathaniel Farris, a/k/a Bobby Givings, who was cooperating with authorities, violated the petitioner’s Sixth
Amendment right to counsel.
7.
That the cumulative effect of the errors identified in the habeas petition rendered the
petitioner’s trial fundamentally unfair, such that his convictions violate constitutional due process
guaranties.
A habeas petitioner bears the burden of demonstrating that he has properly and fully exhausted
his available state court remedies with respect to the claims he presents for federal habeas review.
Prather v. Rees, 822 F.2d 1418, 1420 n.3 (6th Cir. 1987) (citation omitted). If a habeas petitioner retains
the right under state law to raise a claim by any available procedure, he has not exhausted that claim. 28
U.S.C. § 2254(c). The Warden concedes in this case that the four issues presented for review, as
referenced above, were properly exhausted in the state courts and may appropriately be considered by
this Court.
Even where the grounds for relief asserted in a petitioner’s application for a writ of habeas corpus
under § 2254 raise federal constitutional claims that have been exhausted in the state courts and are
properly raised in this Court, the scope of this Court’s review of the state court’s resolution of the issues is
quite limited. The standard for reviewing applications for the writ of habeas corpus is set forth in 28 U.S.C.
§ 2254(d). This section states:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court 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 proceeding.
Id.
A state court’s decision is “contrary to . . . clearly established federal law” if “the state court
arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state
court decides a case differently than the Supreme Court on a set of materially indistinguishable facts.”
Lundgren v. Mitchell, 440 F.3d 754, 762–63 (6th Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 413
19
(2000)) (internal quotations and alterations omitted). A state court decision is “an unreasonable
application of clearly established federal law” if “the state court identifies the correct governing legal
principle but unreasonably applies that principle to the facts of the [petitioner’s] case.” Id. at 763. Clearly
established federal law is determined by the holdings, as opposed to the dicta, of the Supreme Court’s
decisions as of the time of the relevant state-court decision. Id.
The Supreme Court has stressed that AEDPA’s standard is “difficult to meet” and “demands that
[state court] decisions be given the benefit of the doubt.” Cullen v. Pinholster, --- U.S. ----, 131 S. Ct.
1388, 1398 (2011) (internal quotations and citations omitted). In reviewing whether a state court decision
was an unreasonable application of federal law, a district court must remain mindful that the inquiry is
objective, and that “an unreasonable application of federal law is different from an incorrect [one].”
Williams, 529 U.S. at 410. The Court must therefore decline to award habeas relief where fair-minded
jurists could disagree on the correctness of the state court’s decision. Harrington v. Richter, --- U.S. ----,
131 S. Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In addition,
“AEDPA . . . requires federal habeas courts to presume the correctness of state courts’ factual findings
unless applicants rebut this presumption with ‘clear and convincing evidence.’” Schriro v. Landrigan, 550
U.S. 465, 473–74 (2007) (quoting 28 U.S.C. § 2254(e)(1)).
Where there is no state-court decision articulating its reasons for rejecting the petitioner’s claim, a
federal court’s review nevertheless remains deferential; it should focus on the result of the state court’s
decision to determine whether it is “in keeping with the strictures of the AEDPA,” i.e., whether it is contrary
to or involves an unreasonable application of federal law. Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.
2000).
With these principles in mind, the Court will proceed to consider March’s claims.
Ground 1: That the admission of the petitioner’s statements made in conversations with
police officers on August 12, 2005, violated the petitioner’s Miranda rights.
As set forth above, March was arrested in Mexico on August 3, 2005 and immediately transported
to a jail in Los Angeles, California. He waived extradition and was transported to Nashville by two Metro
police officers, Sergeant Pat Postiglione and Detective Bill Pridemore, on August 12, 2005. While en
route from Los Angeles to Nashville, March and his police escorts engaged in lengthy conversations, the
contents of which March sought to suppress before trial on the basis of various legal theories, including
20
that admission of the conversations violated March’s constitutional privilege against self-incrimination.
The trial court denied March’s suppression motion in a written order. (R. Vol. III, at 384–98, ECF No. 34-3,
at 92–106.)
In the trial court and on appeal, March argued that introduction of the evidence of the statements
he made during the trip from Los Angeles to Nashville on August 12, 2005 violated his Fifth Amendment
privilege against self-incrimination, as the Supreme Court applied that privilege in Miranda v. Arizona, 384
U.S. 436 (1966). In Miranda, the Court held that an individual who is in police custody
must be warned prior to any questioning that he has the right to remain silent, that
anything he says can be used against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires. Opportunity to exercise these rights must be
afforded to him throughout the interrogation. After such warnings have been given, and
such opportunity afforded him, the individual may knowingly and intelligently waive these
rights and agree to answer questions or make a statement. But unless and until such
warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained
as a result of interrogation can be used against him.
Miranda, 384 U.S. at 479–80.
In rejecting March’s claim, the Tennessee Court of Criminal Appeals summarized the testimony
given by Sergeant Postiglione as indicating that March first initiated a conversation during the drive from
the Los Angeles County Jail to the airport, and made reference to an attorney he called Brent. At that
time, according to Postiglione’s testimony at the hearing on March’s motion to suppress, the officer told
March that he understood March was an attorney and that, as an attorney, he understood he had no
obligation to speak to the police “about his situation, if he didn’t wish to.” (Transcript of Hearing on Motion
to Suppress, ECF No. 34-6, at 102:10–13.) Postiglione stated: “I further told him that we would not
pressure him in any way or try to interview him or get any sort of a statement; but I invited any questions
or comments he may have, to feel free to share that with us, if he wanted to.” (Id. at 102:14–18.) On
cross-examination, Postiglione conceded that he did not provide an express Miranda warning, but added
that March was never interrogated during the trip to Nashville. (Id. at 121:8–13.) Postiglione also testified
that he was aware that March was represented by counsel. According to Postiglione, March engaged
Postiglione in conversation throughout the trip, asking him questions and making several selfincriminatory statements over the course of the day. Postiglione testified that he never asked March any
21
questions, but that he responded to March’s questions if he felt he could and did not discourage him from
talking.
In ruling on the question of whether March had been subjected to the “functional equivalent” of a
custodial interrogation, the trial court specifically addressed March’s arguments regarding certain
comments Postiglione made during their conversation, which March claimed essentially invited an
incriminating response. These comments included one instance in which Postiglione responded to
March’s statement that he wanted to “close this chapter in his life” and “he felt his attorneys would be
contacting the police again soon.” (Postiglione’s 8/12/2005 Written Report at 1, ECF No. 34-8, at 3.)
According to Postiglione’s written report, the police officer said to March, “[S]ometimes things happen that
some people may perceive one way when, in fact, it is something totally different. I used as an example –
a moment of anger instantly regretted. I gave the scenario of someone killing someone else by accident
compared to walking up behind someone and shooting them in the back of the head – and said that there
is a stark difference between the two.” (Id.) According to Postiglione, however, March did not respond to
this statement, and no further conversation other than small talk ensued until at least an hour later, and it
was unrelated to that comment. The trial court found that, if indeed Postiglione’s statement was intended
to induce an incriminating response, it failed in its objective, because it did not elicit any response at all.
(ECF No. 34-3, at 102.)
Similarly, at a later point, March told Postiglione that he “intensely” loved Janet, but then “did not
argue when [Postiglione] said that sometimes people hurt people they love in a moment of anger.” (ECF
No. 34-8, at 5.) March responded by changing the subject, stating, “You don’t have a witness saying they
saw me killing Janet,” and asking why the police had waited nine years to indict him. (Id.) The trial court
found with respect to this statement too that, “[i]f Postiglione’s remarks about ‘heat of passion’ . . . were a
police tactic . . . , the tactic appears to have failed.” (ECF No. 34-3, at 103.)
In affirming the trial court’s decision, the Tennessee Court of Criminal Appeals found that,
although there was “no question that [March] was in custody,” March, 395 S.W.3d at 765, nothing in
Postiglione’s written notes or testimony at the suppression hearing or at trial indicated that March was
subjected to a custodial interrogation or its functional equivalent under Miranda, and therefore that the
police officer’s conduct during the trip to Nashville did not violate March’s privilege against self-
22
incrimination. Id. at 765–67. More specifically, the court articulated the applicable legal standards and
ruled as follows:
The Fifth Amendment to the United States Constitution, applicable to the states
through the Fourteenth Amendment, states that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” Similarly, the Tennessee Constitution
states “that in all criminal prosecutions, the accused . . . shall not be compelled to give
evidence against himself.” Tenn. Const. art. I, § 9. Thus, a suspect has the right to have
counsel present during a custodial interrogation. Miranda, 384 U.S. at 460–72. Once a
suspect invokes his right to counsel under the Fifth Amendment, he or she “is not subject
to further interrogation by the authorities until counsel has been made available to him,
unless the accused himself initiates further communication, exchanges, or conversations
with the police.” Edwards v. Arizona, 451 U.S. 477, 484–85 (1981). The Miranda court
held that “[b]y custodial interrogation, we mean questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his freedom
of action in any significant way.” Miranda, 384 U.S. at 444 (footnote omitted). “Custodial
interrogation” for Fifth Amendment purposes includes not only express questioning, but
also its “functional equivalent” which is defined as “any words or actions on the part of the
police (other than those normally attendant to arrest and custody) that the police should
know are reasonably likely to elicit an incriminating response from the suspect.” Rhode
Island v. Innis, 446 U.S. 291, 301 (1980).
However, the Miranda court also explained that:
[i]n dealing with statements obtained through interrogation, we do not purport to
find all confessions inadmissible. Confessions remain a proper element of law
enforcement. Any statement given freely and voluntarily without any compelling
influences is, of course, admissible in evidence. The fundamental import of the
privilege while an individual is in custody is not whether he is allowed to talk to
the police without the benefit of warnings and counsel, but whether he can be
interrogated. There is no requirement that police stop a person who enters a
police station and states that he wishes to confess to a crime, or a person who
calls the police to offer a confession or any other statement he desires to make.
Volunteered statements of any kind are not barred by the Fifth Amendment and
their admissibility is not affected by our holding today.
Miranda, 384 U.S. at 478.
Defendant argues that his statement to Detective Postiglione that he “felt that his
attorneys would be contacting the police again” was an unequivocal invocation of his right
to counsel, and that Detective Postiglione’s hypothetical example concerning the
difference between an accidental killing and a premeditated killing was the functional
equivalent of interrogation in violation of his Fifth Amendment rights.
There is no question that Defendant was in custody. However, Detective Postiglione
testified that he did not intend to interrogate Defendant during the flight from Los Angeles
to Nashville. Defendant was so informed and advised of his right to remain silent. (We
note that according to the deposition introduced as an exhibit at the suppression hearing,
Defendant invoked his Fifth Amendment privilege against self-incrimination over seventy
times thus illustrating his familiarity with his right to remain silent.) Defendant’s comment
that his attorneys would be contacting the police soon, on its face, is not an unequivocal
request to deal with the police only through counsel. Defendant, an attorney himself, was
clearly aware that he had the right to counsel. He had already spoken to counsel in
California and had retained counsel in Tennessee before he was returned to this State.
Defendant provided the names and telephone numbers of his attorneys to Detective
Postiglione during the flight. At no time, however, did Defendant during the trip express
23
any desire not to talk to Detective Postiglione until his counsel was present, and the
record does not support Defendant’s contention that he felt coerced to talk.
On the contrary, Defendant continued to initiate conversations with Detective
Postiglione over a two-hour period, falling quiet only to eat or nap. Defendant appeared
very focused on his own agenda which was to find out as much as possible about the
State’s evidence against him and whether a plea agreement with a short sentence was
possible. See Oregon v. Bradshaw, 462 U.S. 1039, 1045–46 (1983) (concluding that the
defendant’s question, “Well, what is going to happen to me now?” evinced “a willingness
and desire for a generalized discussion about the case” and “was not merely a necessary
inquiry arising out of the incidents of the custodial relationship”); State v. Land, 34 S.W.3d
516, 524 (Tenn. Crim. App., 2000) (observing that “[i]t is well established that questioning
initiated by the defendant is not interrogation in the Innis sense”) (citing Edwards, 451
U.S. at 484)).
Although a police officer should refrain from making a comment designed to elicit a
response from a defendant, including comments which minimize the crime with which the
defendant is charged, the Edwards Court explained:
[i]f, as frequently would occur in the course of a meeting initiated by the accused,
the conversation is not wholly one-sided, it is likely that the officers will do or say
something that clearly would be interrogation. In that event, the question would
be whether a valid waiver of the right to counsel and the right to silence had
occurred, that is, whether the purported waiver was knowing and intelligent and
found to be so under the totality of the circumstances, including the necessary
fact that the accused, not the police, reopened the dialogue with authorities.
Edwards, 451 U.S. at 486.
Although an officer’s intent may be relevant in determining “whether the officer should
have known his or her words or actions were reasonably likely to invoke an incriminating
response,” the primary focus rests “upon the accused’s perception rather than on the
police officer’s intent.” State v. Sawyer, 156 S.W.3d 531, 534 (Tenn. 2005) (citing Innis,
446 U.S. at 301). In the case sub judice, Defendant observed that “we are just two men
having a conversation.” Defendant said that although he did not trust Detective
Postiglione because he was a police officer, he found that Detective Postiglione “might be
an honorable man.” At the conclusion of the flight, Defendant stated that he was glad that
it was Detective Postiglione who had been assigned to escort him back to Tennessee,
that he had no complaints, and that Detective Postiglione had treated him well. The
record does not support Defendant’s contention that he felt that he was being subject to
interrogation during the flight.
Based on our review of the totality of the circumstances surrounding the giving of
Defendant’s statements, we conclude that the evidence does not preponderate against
the trial court’s finding that the admission of Defendant’s August 12, 2005, statements did
not violate Fifth Amendment principles. Defendant is not entitled to relief on this basis.
March, 395 S.W.3d at 765–67.
In his petition for habeas relief, March takes issue with the state appellate court’s implicit finding
that he waived his right to counsel by “initiating” conversations with the police, and disputes that position
by pointing out that he could not waive rights whose existence had not been fully disclosed to him. In fact,
most of March’s argument is devoted to a discussion of the requirement of a full Miranda warning, without
24
which any evidence obtained as the result of a custodial interrogation must be excluded. (ECF No. 2, at
15 (citing Jackson v. Giurbino, 364 F.3d 1002, 1008–09 (9th Cir. 2004)).) March also contests the state
court’s holding that Postiglione’s conversation with March did not amount to a “functional equivalent of an
interrogation.” (ECF No. 2, at 13.)
There is obviously no question that Miranda, issued in 1966, is clearly established law, the basic
holding of which has been repeatedly reaffirmed by the Supreme Court. See Dickerson v. United States,
530 U.S. 428, 434–35 (2000). The Court also finds that a criminal defendant is not in a position to waive
his Miranda rights until and unless he has been fully informed of them, and that Postiglione conceded in
this case that he did not provide a Miranda warning to March. The Tennessee Court of Criminal Appeals
determined based on a “totality of the circumstances” that Postiglione had reminded March of his right to
remain silent, that March was an attorney and was obviously aware of his right not to talk to police
officers, and that March had demonstrated his understanding of his right to remain silent by evoking his
Fifth-Amendment rights numerous times during his deposition in a civil case instituted against him by the
Levines. The court did not address, however, the question of whether March had been made aware of the
consequences of speaking to police officers if he chose to do so, or of the fact that anything he said to the
police could be used against him at trial. Neither the facts nor the law supports a conclusion that March
was given an effective Miranda warning by Postiglione. Regardless, the state court’s decision did not rest
upon any such conclusion.
Rather, the court focused primarily on the question of whether March was subjected to an
interrogation or its “functional equivalent” while being transported from Los Angeles to Nashville. As
referenced above, the state court found that no interrogation or its functional equivalent had occurred.
Obviously, if there was no interrogation or its equivalent, there was never a need for Miranda warnings.
This Court is not at liberty to conduct its own independent analysis of the issue of whether an
interrogation occurred. Rather, under the AEDPA’s “highly deferential” standard of review, which
“demands that state-court decisions be given the benefit of the doubt,” Bell v. Cone, 543 U.S. 447, 455
(2005) (quotations omitted), the Court must determine whether the state court’s decision was contrary to,
or involved an unreasonable application of, clearly established federal law, or was based on an
unreasonable determination of the facts in light of the evidence presented in the state-court proceeding.
25
In Williams v. Taylor, 529 U.S. 362, 406 (2000), the United States Supreme Court explained that an
“unreasonable application” occurs when “the state court identifies the correct legal principle from this
Court’s decision but unreasonably applies that principle to the facts of the prisoner’s case.” The Williams
Court further explained that a federal habeas court may not find a state-court adjudication to be
“unreasonable,” within the meaning of § 2254(d)(1), “simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 411. In other words, such a finding is a necessary, but not sufficient,
predicate to the granting of habeas relief. This Court also must find that the decision of the Tennessee
court was “objectively unreasonable,” in the sense that it involved an objectively unreasonable application
of clearly established Supreme Court precedent. Id. at 409.
With regard to the petitioner’s claim here, it is clear, first, that the state trial and appellate courts
applied the appropriate legal standard. In Rhode Island v. Innis, 446 U.S. 291 (1980), the Supreme Court
declined to interpret or apply the holding in Miranda narrowly:
The concern of the Court in Miranda was that the “interrogation environment” created by
the interplay of interrogation and custody would “subjugate the individual to the will of his
examiner” and thereby undermine the privilege against compulsory self-incrimination.
The police practices that evoked this concern included several that did not involve
express questioning. . . . The Court in Miranda also included in its survey of interrogation
practices the use of psychological ploys, such as to “posi[t]” “the guilt of the subject,” to
“minimize the moral seriousness of the offense,” and “to cast blame on the victim or on
society.” It is clear that these techniques of persuasion, no less than express questioning,
were thought, in a custodial setting, to amount to interrogation.
Id. at 299 (emphasis added) (internal citations omitted). In light of these concerns, the Court defined the
term “interrogation” in the Miranda context as follows:
“Interrogation,” as conceptualized in the Miranda opinion, must reflect a measure of
compulsion above and beyond that inherent in custody itself.
We conclude that the Miranda safeguards come into play whenever a person in
custody is subjected to either express questioning or its functional equivalent. That is to
say, the term “interrogation” under Miranda refers not only to express questioning, but
also to any words or actions on the part of the police (other than those normally attendant
to arrest and custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect. . . . A practice that the police should know is
reasonably likely to evoke an incriminating response from a suspect thus amounts to
interrogation. But, since the police surely cannot be held accountable for the
unforeseeable results of their words or actions, the definition of interrogation can extend
only to words or actions on the part of police officers that they should have known were
reasonably likely to elicit an incriminating response.
Id. at 300–02 (emphasis in original; footnotes omitted).
26
In Innis, the defendant had been placed under arrested, advised of his Miranda rights, and was
being transported by police officers to a police station in a patrol car. “The respondent stated that he
understood [his Miranda] rights and wanted to speak with a lawyer.” Id. at 294. While in the car, however,
the officers began to speak to each other about the murder weapon, which they had not yet located. One
of the officers testified as follows:
I was talking back and forth with [a second police officer] stating that I frequent this area
while on patrol and [that because a school for handicapped children is located nearby,]
there’s a lot of handicapped children running around in this area, and God forbid one of
them might find a weapon with shells and they might hurt themselves.
Id. at 294–95 (second alteration in original). The second officer “apparently shared his fellow officer’s
concern,” indicating that he “more or less concurred with [the first officer] that it was a safety factor and
that we should, you know, continue to search for the weapon and try to find it.” Id. at 295. Sometime
during the course of this discussion, Innis “interrupted the conversation, stating that the officers should
turn the car around so he could show them where the gun was located. . . . The respondent then led the
police to a nearby field, where he pointed out the shotgun under some rocks by the side of the road.” Id.
After considering the above facts, the Supreme Court held that the officers’ conversation was not
reasonably likely to elicit an incriminating response. Id. at 302. The court noted that nothing in the record
indicated that the suspect was “peculiarly susceptible to an appeal to his conscience,” and further
elaborated that
[t]he case thus boils down to whether, in the context of a brief conversation, the officers
should have known that the respondent would suddenly be moved to make a selfincriminating response. Given the fact that the entire conversation appears to have
consisted of no more than a few off hand remarks, we cannot say that the officers should
have known that it was reasonably likely that [the suspect] would so respond. This is not
a case where the police carried on a lengthy harangue in the presence of the suspect.
Nor does the record support the respondent’s contention that, under the circumstances,
the officers’ comments were particularly “evocative.” It is our view, therefore, that the
respondent was not subjected by the police to words or actions that the police should
have known were reasonably likely to elicit an incriminating response from him.
Id. at 302–03.
In the present case, the petitioner argues passionately that he “initiated nothing.” (ECF No. 2, at
16.) He also asserts that he was in a particularly vulnerable state, psychologically, because he had been
“[y]anked from his family and children in Mexico, thrown into a Los Angeles county jail for six days,
unshowered the entire time, and in emotional turmoil over his children’s safety.” (Id.) Moreover, during the
27
trip to Nashville, he was forced to sit “in an uninterrupted continuum of police custody, handcuffed and
flanked by two cagey homicide detectives for hours and hours as part of a deliberate plan that the police
knew, or should have known, was the functional equivalent of interrogation.” (Id.) March did not testify at
the hearing on the motion to suppress or at trial, however, and the record simply does not support his
contention that he initiated “nothing.” Postiglione testified that he did not question March and instead that
March initiated all substantive conversations while the police officer simply responded to questions. The
trial court expressly found Postiglione’s testimony to be credible, and this Court is bound by that
conclusion. See 28 U.S.C. § 2254(e)(1) (factual findings of the state appellate court are entitled to a
presumption of correctness in the absence of clear and convincing evidence to the contrary); McAdoo v.
Elo, 365 F.3d 487, 493–94 (6th Cir. 2004).
This Court is unaware of any Supreme Court or other case precedent suggesting that the amount
of time a defendants spends in a police officer’s presence, being transported or otherwise, alone may be
sufficient to create an inference of interrogation or a per se coercive environment. In short, the Court
cannot find that the Tennessee trial and appellate courts’ resolution of this issue was unreasonable. By
the time March was being transported to Nashville after his arrest in Mexico, he had been denying his
involvement in his wife’s disappearance for nearly a decade and, as both a lawyer and a litigant, had
substantial familiarity with the justice system. Postiglione told March early in their interaction that he
understood that March was an attorney and that March knew he did not have to speak to the police
officers. Postiglione told him they did not intend to interrogate him. March clearly was aware that he did
not have to speak, and he was not placed in an intimidating or innately coercive environment—to the
contrary, in fact. In that regard, the record reasonably supports the state court’s finding that March was
not subject to “a measure of compulsion above and beyond that inherent in custody itself.” Innis, 446 U.S.
at 300. Nor is this a case “where the police carried on a lengthy harangue in the presence of the suspect.”
Id. at 303; cf. Fleming v. Metrish, 556 F.3d 520, 527 (6th Cir. 2009) (recognizing that “extended
comments directed toward a suspect are more likely to elicit an incriminating response”).
As the Sixth Circuit noted in Fleming, in the context of a habeas claim based on an alleged
misapplication of Innis:
There are strong arguments both for and against construing [the police officer’s]
comments as an interrogation. Indeed, were [this] appeal a direct one to be reviewed de
28
novo, the possibility exists that we might have agreed with [the petitioner’s] position. But
the fact that a federal court might disagree with the [state] Court of Appeals’[] application
of Innis does not justify the conclusion that the [state] court unreasonably applied the
Supreme Court’s decision.
Fleming, 556 F.3d at 527–28 (citations omitted); cf. Shaneberger v. Jones, 615 F.3d 448, 454 (6th Cir.
2010) (finding that the question of whether the police detective should have known his comments would
elicit an incriminating response presented a “close question,” but one that “could reasonably be answered
by a state court in the negative”). Likewise in this case, the state court clearly identified the correct legal
principles, and did not unreasonably apply those principles to the facts of March’s case. The Court
concludes that the petitioner is not entitled to relief on the basis of this claim.
Ground 2. That admission of the petitioner’s statements made during his transport from
Los Angeles to Nashville violated the petitioner’s Sixth Amendment right to
counsel under Massiah v. United States, 377 U.S. 201 (1964)
The Sixth Amendment guarantees a criminal defendant the right “to have the Assistance of
Counsel for his defence.” U.S. Const. amend. VI. “This right has been accorded, . . . ‘not for its own sake,
but because of the effect it has on the ability of the accused to receive a fair trial.’” Mickens v. Taylor, 535
U.S. 162, 166 (2002) (quoting United States v. Cronic, 466 U.S. 648, 658 (1984)). Thus, “once the
adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to
have counsel present at all ‘critical’ stages of the criminal proceedings.” Montejo v. Louisiana, 556 U.S.
778, 786 (2009) (citations omitted). “Interrogation by the State is such a stage.” Id. (citing Massiah v.
United States, 377 U.S. 201, 204–05 (1964); United States v. Henry, 447 U.S. 264, 274 (1980)).
Moreover, the term “interrogation” is not necessarily defined the same for purposes of Fifth and Sixth
Amendment analysis. See Rhode Island v. Innis, 446 U.S. 291, 300 n.4 (1980) (“The definitions of
‘interrogation’ under the Fifth and Sixth Amendments, if indeed the term ‘interrogation’ is even apt in the
Sixth Amendment context, are not necessarily interchangeable, since the policies underlying the two
constitutional protections are quite distinct.”). For Sixth Amendment purposes, “interrogation” occurs when
law enforcement officers “deliberately elicit” information from an individual in the absence of counsel after
the right to counsel has attached. Massiah, 377 U.S. at 206; Innis, 446 U.S. at 300 n.4. Thus, the fact that
it was reasonable for the state court to conclude that March was not subject to an interrogation for
purposes of Fifth-Amendment analysis is not necessarily dispositive of the question of whether March’s
Sixth-Amendment right to counsel was violated.
29
A defendant is “denied the basic protections” of the Sixth Amendment “when there [is] used
against him at his trial evidence of his own incriminating words, which federal agents had deliberately
elicited from him after he had been indicted and in the absence of his counsel.” Massiah, 377 U.S. at 206.
The right to counsel applies not only to direct confrontations by known government officers, but also to
“‘indirect and surreptitious interrogations’” by covert government agents and informants. Henry, 447 U.S.
at 273 (quoting Massiah, 377 U.S. at 206); see also Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986)
(“[T]he primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques
that are the direct equivalent of police interrogation.”). As the Supreme Court stated in Maine v. Moulton,
474 U.S. 159 (1985),
[o]nce the right to counsel has attached and been asserted, the State must of course
honor it. This means more than simply that the State cannot prevent the accused from
obtaining the assistance of counsel. The Sixth Amendment also imposes on the State an
affirmative obligation to respect and preserve the accused’s choice to seek this
assistance. We have on several occasions been called upon to clarify the scope of the
State’s obligation in this regard, and have made clear that, at the very least, the
prosecutor and police have an affirmative obligation not to act in a manner that
circumvents and thereby dilutes the protection afforded by the right to counsel.
Id. at 170–71 (footnote omitted). Therefore, a Sixth Amendment violation occurs whenever the State
“intentionally creat[es] a situation likely to induce [a defendant] to make incriminating statements without
the assistance of counsel,” Henry, 447 U.S. at 274, or “knowing[ly] exploit[s]” a situation in order to obtain
incriminating information from a defendant “without counsel being present.” Moulton, 474 U.S. at 176.
As set forth above, the Supreme Court has recently reconfirmed that, once the adversarial judicial
process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel
present at all “critical” stages of the criminal proceedings, and that interrogation by the State is such a
stage. Montejo, 556 U.S. at 786. The defendant may only waive his right to counsel if the waiver is
voluntary, knowing and intelligent. Such a waiver is ordinarily accomplished when a defendant is read his
Miranda rights and agrees to waive those rights, even though Miranda rights derive from the Fifth
Amendment. Id.
In Fellers v. United States, 540 U.S. 519 (2004), the Supreme Court held that two police officers
violated the Sixth Amendment by deliberately eliciting information from the defendant during a postindictment visit to his home in the absence of counsel or waiver of counsel, regardless of whether the
30
officers’ conduct constituted “interrogation” per se.3 In reaching that conclusion, the Court specifically held
as follows:
The Sixth Amendment right to counsel is triggered “at or after the time that judicial
proceedings have been initiated . . . ‘whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment.’” Brewer v. Williams, 430 U.S. 387, 398
(1977) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)). We have held that an accused
is denied “the basic protections” of the Sixth Amendment “when there [is] used against
him at his trial evidence of his own incriminating words, which federal agents . . .
deliberately elicited from him after he had been indicted and in the absence of his
counsel.” Massiah v. United States, 377 U.S. 201, 206 (1964); cf. Patterson [v. Illinois,
487 U.S. 285 (1988)] (holding that the Sixth Amendment does not bar postindictment
questioning in the absence of counsel if a defendant waives the right to counsel).
We have consistently applied the deliberate-elicitation standard in subsequent Sixth
Amendment cases, see United States v. Henry, 447 U.S. 264, 270 (1980) (“The question
here is whether under the facts of this case a Government agent ‘deliberately elicited’
incriminating statements . . . within the meaning of Massiah”); Brewer, [430 U.S.] at 399
(finding a Sixth Amendment violation where a detective “deliberately and designedly set
out to elicit information from [the suspect]”), and we have expressly distinguished this
standard from the Fifth Amendment custodial-interrogation standard, see Michigan v.
Jackson, 475 U.S. 625, 632, n.5 (1986) (“[T]he Sixth Amendment provides a right to
counsel . . . even when there is no interrogation and no Fifth Amendment applicability”);
Rhode Island v. Innis, 446 U.S. 291, 300, n.4 (1980) (“The definitions of ‘interrogation’
under the Fifth and Sixth Amendments, if indeed the term ‘interrogation’ is even apt in the
Sixth Amendment context, are not necessarily interchangeable[.]”); cf. United States v.
Wade, 388 U.S. 218 (1967) (holding that the Sixth Amendment provides the right to
counsel at a postindictment lineup even though the Fifth Amendment is not implicated).
Fellers, 540 U.S. at 523–24.
Based, essentially, on the same arguments underlying his Miranda-violation claim, March
contends that Sergeant Postiglione violated his Sixth Amendment right to counsel when he deliberately
elicited inculpatory statements from him during the trip from Los Angeles to Nashville, in the absence of a
valid waiver of his right to counsel. The respondent concedes that this claim was fully exhausted in the
state courts.
In considering and rejecting March’s claim of a Sixth-Amendment violation, the state appellate
court correctly referenced the controlling law as set forth in the Sixth Amendment and Massiah v. United
States, 377 U.S. 201 (1964): that a criminal defendant is entitled to an attorney at every critical stage of
3
In Fellers, two police officers went to the petitioner’s home to arrest him. Upon arriving there, the
officers identified themselves, asked to come inside and, once invited inside, told the petitioner they had
come to discuss the petitioner’s involvement in methamphetamine distribution. Id. at 521. They informed
him they had a warrant for his arrest and that a jury had indicted him for conspiracy to distribute
methamphetamine. They also told the petitioner that the indictment “referred to his involvement with
certain individuals, four of whom they named.” Id. The petitioner then volunteered that he knew the
individuals and had used methamphetamine. Id.
31
the criminal proceedings, and that police interrogation is a critical stage. The court also noted that a
defendant can waive his Sixth Amendment right to counsel, citing Montejo, 556 U.S. at 786–87. The state
court concluded that March has knowingly and intelligently waived his right to counsel, reasoning as
follows:
For Sixth Amendment purposes, “[t]he U[nited] S[tates] Supreme Court has clearly
sanctioned the admissibility of a statement given after the appointment of counsel and
even after defendant has ‘expressed his desire to deal with police only through counsel,’
where defendant initiates further communication, electing ‘to face the state’s officers and
go it alone,’ and knowingly and intelligently waives his Sixth Amendment right to
counsel.[”] State v. Cauthern, 778 S.W.2d 39, 46 (Tenn. 1989) (quoting Patterson v.
Illinois, 487 U.S. 285 (1988); Edwards v. Arizona, 451 U.S. 477 (1981)); see also Oregon
v. Bradshaw, 462 U.S. [1039,] 1045 [(1983)].
Because “a Sixth Amendment violation does not depend upon coercion, the
protection of the Sixth Amendment is not waived by conduct that shows only that a
defendant’s statements were not coerced.” Wyrick v. Fields, 459 U.S. 42, 54 (1982).
Therefore, “[t]he State must show that the defendant intelligently and knowingly
relinquished his right not to be questioned in the absence of counsel. The State can
establish a waiver only by proving ‘an intentional relinquishment or abandonment’ of the
right to have counsel present.” Wyrick, 459 U.S. at 54 (citing Brewer, 430 U.S. at 404,
quoting Johnson [v. Zerbst], 304 U.S. [458,] 464 [(1938)].
Defendant argues that the record is devoid of any indication that he intentionally
relinquished his Sixth Amendment right to counsel. Relying on Massiah and State v.
Berry, 592 S.W.2d 553 (Tenn. 1980), Defendant contends that Sergeant Postiglione
impermissibly and deliberately elicited incriminating statements from him during the flight.
Both the Massiah court and the Berry court were presented with similar situations.
Each defendant in the two cases had been indicted and had retained counsel. An
undisclosed agent of the State (a co-defendant in Massiah and a disguised Tennessee
Bureau of Investigation agent in Berry) approached the respective defendant at the
direction of law enforcement officials and engaged him in conversation during which each
defendant made incriminating statements concerning his current charges. Massiah, 377
U.S. at 202–03; Berry, 592 S.W.2d at 555–56. The Massiah Court concluded that the
defendant “was denied the basic protections of that guarantee [the Sixth Amendment
right to counsel] when there was used against him at his trial evidence of his own
incriminating statements, which federal agents had deliberately elicited from him after he
had been indicted and in the absence of his counsel.” Massiah, 377 U.S. at 206; Berry,
592 S.W.2d at 561 (concluding that the eliciting of defendant’s incriminating statements
under the circumstances presented violated the defendant’s Sixth Amendment right to
counsel). As the Berry court observed, “[t]he law will not permit law enforcement officials
to do by ruse, trickery, deceit and deception that which it is not permitted to do openly
and honestly.” Id.
In Massiah and Berry, the statements made by each defendant were voluntary.
However, the disguise of the true identity of the federal agent in Massiah and the role of
the co-defendant in Berry rendered any purported waiver of the right to counsel
unknowing. See United States v. Henry, 447 U.S. 264, 273 (1988) (concluding that “the
concept of a knowing and voluntary waiver of Sixth Amendment rights does not apply in
the context of [post-indictment] communications with an undisclosed undercover
informant acting for the Government”).
32
In the case sub judice, however, Defendant clearly understood that Sergeant
Postiglione was a police officer assigned to his case. Defendant had previously
demonstrated that he understood his right to remain silent during his deposition in a civil
case, and Sergeant Postiglione warned Defendant that he had the right to remain silent
as soon as Defendant initiated the first conversation on the way to the car rental
company. Defendant also knew that he had the right to have his counsel present during
any interrogation, but he chose to “go it alone” and enter into a generalized discussion of
his case with Sergeant Postiglione. Bradshaw, 462 U.S. at 1045. Based on our review,
we conclude that Defendant voluntarily, knowingly, and intelligently waived his Sixth
Amendment right to counsel. Defendant is not entitled to relief on this basis.
March, 395 S.W.3d at 768–69.
In other words, the Tennessee appellate court’s analysis focused on a finding that March
knowingly, intelligently and voluntarily waived his right to counsel. The evidence, however, does not
support that conclusion, in light of the undisputed fact that Postiglione never provided March a full
recitation of his Miranda rights. In every Supreme Court case to which the Tennessee Court of Criminal
Appeals cited in which the Court found that a valid waiver of the right to counsel had occurred, the
defendant or petitioner had actually been given Miranda warnings, at least once, on the same day or
contemporaneously with the waiver. The police officers’ failure to give March a full Miranda warning in this
case makes the Tennessee court’s conclusion that a knowing and intelligent waiver had occurred
unreasonable.
In fact, Supreme Court precedent has clearly established a rule that, “[a]s a general matter . . . ,
an accused who is admonished with the warnings prescribed by . . . Miranda . . . has been sufficiently
apprised of the nature of his Sixth Amendment rights, and of the consequences of abandoning those
rights, so that his waiver on this basis will be considered a knowing and intelligent one.” Patterson, 487
U.S. at 296 (emphasis added); see also Montejo, 556 U.S. at 786 (“[W]hen a defendant is read his
Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive
those rights, that typically does the trick” to effect waiver of Sixth Amendment right to counsel during postindictment questioning.). In Patterson, in fact, the Court considered whether a Miranda warning was
sufficient for an effective waiver of Sixth Amendment rights. The Court answered that question in the
affirmative, but noted in particular that the Miranda warning served, not only to apprise a defendant of his
right to have counsel present during questioning, but also that a Miranda warning makes a defendant
“aware of the consequences of a decision by him to waive his Sixth Amendment rights,” in particular that
“any statement that he made could be used against him in subsequent criminal proceedings.” Patterson,
33
487 U.S. at 293. In the wake of Patterson, to this Court’s knowledge, the Supreme Court has never
suggested that any warning less complete than a full Miranda warning would be sufficient to permit a
knowing, intelligent waiver of Sixth Amendment rights. As March argues, a criminal defendant is not in a
position to waive rights of which he has not been apprised. The Tennessee appellate court bypassed the
obligation of a full Miranda warning by noting that March was a lawyer who “obviously” knew he had a
right to counsel, but there is no evidence in the record that Postiglione—or anyone else—relayed to
March at any time after his arrest in Mexico, his detention in Los Angeles, or his transport to Nashville the
full panoply of rights protected by the Sixth Amendment or the effect of waiving those rights.4 Anyone who
watches crime shows on television is likely to be just as aware as March of his right to counsel, but this
Court is unaware of any exception to the requirement that a defendant be given a Miranda warning before
waiving his right to counsel that applies only to lawyers or those who have watched more than their fair
share of Law and Order.
Moreover, Postiglione’s failure to provide a clear warning, especially when it became evident that
March was inclined to talk and in light of Postiglione’s admission that he wanted and encouraged March
to talk, is not excused by his claim that he did not intend to interrogate March and that he did not initiate
the exchanges with March. Regardless of the fact that March knew that Postiglione was a police officer,
this was clearly a situation where the State, through Postiglione, “intentionally creat[ed] a situation likely
to induce [a defendant] to make incriminating statements without the assistance of counsel,” Henry, 447
U.S. at 274, and “knowing[ly] exploit[ed]” a situation in order to obtain incriminating information from a
defendant “without counsel being present.” Moulton, 474 U.S. at 176.
In this regard, the Court finds that the factual circumstances in this case are not reasonably
comparable to those upon which the Tennessee Court of Criminal Appeals relied most heavily: Massiah
v. United States, 377 U.S. 201 (1964), State v. Berry, 592 S.W.2d 553 (Tenn. 1980), and Oregon v.
Bradshaw, 462 U.S. 1039 (1983). In both Massiah and Berry, the criminal defendants were victims of
4
Instead, according to Postiglione’s testimony, he “advised [March] that [he] understand that
[March] was an attorney and that, certainly, he understood that . . . he was under no obligation to speak
with us about his situation, if he didn’t wish to.” (ECF No. 34-6, at 102.) Postiglione further told March,
however, that, although they “would not pressure him in any way or try to interview him or get any sort of
statement,” they “invited any questions or comments [March] [might] have, [and encouraged him] to feel
free to share that with [the officers], if he wanted to.” (Id.)
34
police ruse and were not aware that their interlocutors were agents of the police. In Bradshaw, the
Supreme Court held that the defendant who asked a police officer, “Well, what is going to happen to me
now?” effectively waived his right to counsel and opened the door to a generalized discussion of his case.
There, however, the defendant had been given a full Miranda warning at least twice on the day of his
arrest, and, when he began discussing the case with a police officer during his transport from a police
station to the county jail the same day, the defendant was again reminded that he had invoked his right to
counsel and was told that any discussion with the police had to be “at [his] own free will.” Bradshaw, 462
U.S. at 1042. March, in contrast, was never given a complete Miranda warning. He was simply reminded,
early in the day, that, because he was a lawyer, he understood he was under no obligation to talk to the
police. The record indicates that his self-incriminating statements were made hours after this half-hearted
warning. Thus, the facts here are much more closely akin to those in Fellers, insofar as March, like the
petitioner in Fellers, was entitled to counsel and, although not subjected to interrogation per se, was
subjected to a police encounter during which police officers intentionally elicited information without
providing a Miranda warning and without actually asking a single question. Fellers, 540 U.S. at 521.
As noted above, a state court’s decision is “an unreasonable application of clearly established
federal law” if “the state court identifies the correct governing legal principle but unreasonably applies that
principle to the facts of the [petitioner’s] case.” Id. at 763. This Court finds that the decision of the
Tennessee Court of Criminal Appeals that March knowingly and intelligently waived his Sixth Amendment
right to counsel was an unreasonable application of clearly established federal law, which unequivocally
requires that a defendant be given a complete Miranda warning before he can knowingly and intelligently
waive his Sixth Amendment right to counsel. The state appellate court identified the correct legal
principles but unreasonably applied those principles to March’s case, the facts of which were only barely
distinguishable from those in Fellers. In reaching this conclusion, this Court is mindful that “an
unreasonable application of federal law is different from an incorrect [one].” Williams v. Taylor, 529 U.S.
362, 410 (2000), and that the Court must decline to award habeas relief where fair-minded jurists could
disagree on the correctness of the state court’s decision. Harrington v. Richter, --- U.S. ----, 131 S. Ct.
770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
35
The Court’s inquiry does not stop at this point, however, because the Supreme Court has stated
that harmless-error analysis applies in those instances where statements are obtained and introduced
into evidence under circumstances that violate the Sixth Amendment right to counsel. See Milton v.
Wainwright, 407 U.S. 371, 372 (1972) (holding that harmless-error analysis applied to the admission of
post-indictment, pretrial confessions obtained by a police officer posing as a fellow prisoner, in violation of
a suspect’s Sixth Amendment right to counsel). For purposes of federal habeas review, a constitutional
error that implicates trial procedures is considered harmless if it did not have a “substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see
id. at 634 (recognizing a distinction between direct and collateral review, and that “an error that may
justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment”
(citations omitted)); see also Fry v. Pliler, 551 U.S. 112, 121–22 (2007) (confirming that Brecht applies in
a § 2254 proceeding, “whether or not the state appellate court recognized the error and reviewed it for
harmlessness under the ‘harmless beyond a reasonable doubt’ standard set forth in Chapman [v.
California], 386 U.S. 18 [(1967)]”).
“Under this standard, habeas petitioners may obtain plenary review of their constitutional claims,
but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in
‘actual prejudice.’” Id. at 637 (citation omitted). The Brecht harmless-error analysis “protects the State’s
sovereign interest in punishing offenders and its ‘good-faith attempts to honor constitutional rights.’”
Calderon v. Coleman, 525 U.S. 141, 146 (1998) (per curiam) (quoting Brecht, 507 U.S. at 635).
Application of this standard requires a district court judge to ask, “Do I, the judge, think that the error
substantially influenced the jury’s decision?” O’Neal v. McAninch, 513 U.S. 432, 436 (1995). If a federal
habeas judge is in “grave doubt” about whether a constitutional trial error “had substantial and injurious
effect or influence in determining the jury’s verdict,” or if the court is in “virtual equipoise as to the
harmlessness of the error” under the Brecht standard, the court should “treat the error . . . as if it affected
the verdict.” Id. at 435.
The question before this Court, then, is whether the evidence regarding March’s statements to
Postiglione during the trip from Los Angeles to Nashville had a substantial injurious effect on the jury’s
verdict. In applying the “substantial and injurious effect” standard in Brecht, the Supreme Court concluded
36
that the error in question (references to the petitioner’s post-Miranda silence) did not substantially
influence the jury’s verdict, based on the Court’s finding that (1) the State’s improper references “were
infrequent, comprising less than two pages of the 900-page trial transcript”; (2) the State’s “extensive and
permissible references to the petitioner’s pre-Miranda silence” made the improper references, “in effect,
cumulative”; and (3) “the State’s evidence of guilt was, if not overwhelming, certainly weighty.” Brecht,
507 U.S. at 639. The resolution of the issue in Brecht is instructive here. When the evidence of record is
viewed as a whole, the Court is firmly persuaded that the improperly admitted evidence of March’s
statements made to Postiglione during the trip from Los Angeles to Nashville, viewed in isolation, could
not have had a substantial effect on the verdict.
There is no doubt that March’s testimony was prejudicial, even if it did not amount to an
unequivocal confession. Postiglione testified that March stated that “he wanted to close this chapter in his
life” (Trial Tr. Vol. 18, at 2131, ECF No. 37-4, at 81); asked “persistently” if the police had located Janet
March’s body and about what other evidence the police possessed, other than circumstantial evidence
(id.); and, later, stated that he wanted to plead guilty to the murder of Janet March (Trial Tr. Vol. 18, at
2132, ECF No. 37-4, at 82). He told Postiglione that he knew “specifics about the case” that the police did
not know, and that “[p]rior to the Janet incident, [March] ha[d] not been involved in any other criminal-type
activity.” (Id.) Postiglione also indicated that March talked repeatedly about a plea bargain that would
permit him to serve “no less than five years no more than seven years in actual time” (Trial Tr. Vol. 18, at
2134, ECF No. 37-4, at 84), and told him that if he was able to reach an agreement with the authorities
“he would be 100 percent honest. He would answer all of their questions honestly and be truthful . . .
assuming a deal could be worked out. . . .” (Id.) Notwithstanding, Postiglione’s testimony on direct
examination regarding March’s statements comprised approximately three pages of a trial transcript that
covered approximately 2500 pages, and the testimony took a minimal amount of time in the context of a
nine-day trial during which the jury heard testimony from literally dozens of witnesses.5 Moreover, the
other evidence in the case overwhelmingly supported a conclusion that March was guilty of the murder of
his wife. In particular, March’s father—to whom March was very close, and whom March described as
5
The cross-examination of Postiglione about that aspect of his testimony covered roughly eleven
additional pages. (See Trial Tr. Vol. 19, at 2246–57, ECF No. 37-6, at 69–80.)
37
being willing to take a bullet for him—testified that March admitted to him, obliquely, that Janet had died in
an “accident” after an argument. Arthur March also testified that he got rid of a computer hard-drive and
another computer component at his son’s request,6 and that he helped his son dispose of Janet March’s
remains.
Although the Court concludes that March did not validly waive his Sixth Amendment rights and
that his statements to Postiglione should have been suppressed at trial, and further that the Tennessee
Court of Criminal Appeals’ conclusion to the contrary amounted to an unreasonable application of clearly
established federal law, March is nonetheless not entitled to relief on the basis of this claim, because
even if the statements had been suppressed, the outcome most certainly would have been the same. The
Court concludes that the error in admitting those statements into evidence did not have a substantial,
injurious effect on the jury’s verdict. March is therefore not entitled to relief on the basis of this claim.
Ground 3. That admission of evidence of jailhouse interactions between the petitioner and
Russell Nathaniel Farris, a/k/a Bobby Givings, who was cooperating with
authorities, violated the petitioner’s right to counsel
While March was in jail in Davidson County awaiting trial on the charge of murdering his wife, he
engaged in inappropriate dealings and conversations with a fellow inmate, Russell Nathaniel Farris, who
became a government informant and agent. As discussed in the factual summary, above, Farris testified
that he was arrested on various violent felony charges at the end of April 2005 and was transferred to the
Special Management Unit on the fourth floor of the Davidson County Criminal Justice Center in May
2005. He was still housed there when March arrived in August 2005. March began talking to Farris
immediately upon his arrival. He would talk to Farris through a crack in Farris’s cell door during March’s
recreation period. After “numerous conversations,” March allegedly asked Farris to kill Janet March’s
parents, Lawrence and Carolyn Levine. Farris testified that he and March had daily conversations about
this idea for approximately a month before Farris became concerned that he might be charged with
conspiracy, and spoke to his mother and attorney about his conversations with March. Ultimately, after a
meeting with police officers and the district attorney general’s office, Farris agreed to record his
conversations with March. He recorded several conversations with March in which the murder of the
6
The hard-drive to March’s computer had mysteriously disappeared when Detective David Miller
executed a search warrant for the computer on September 17, 1996. (See Trial Tr. Vol. 9, at 1047–49,
ECF No. 36-2, at 113–15.)
38
Levines was discussed. Other inmates testified that they saw March and Farris having secretive
conversations, and several conversations between Farris and March’s father, Arthur March, the coconspirator in the conspiracy to kill the Levines, were also recorded. Finally, Arthur March also testified
via deposition about having entered a guilty plea in federal court to the charge of solicitation to commit
murder and that the Levines were the intended victims of the plot. Arthur March was given a fairly lenient
sentence on that charge in exchange for his truthful testimony in his son’s murder trial. He also testified
that his son had confessed the accidental killing of Janet Levine to him, and that Arthur March helped his
son dispose of Perry March’s computer hard drive and Janet March’s remains.
March filed a motion to exclude evidence of his recorded conversations with Farris, which the trial
court denied in a written order filed July 24, 2006. March also argued on appeal to the Tennessee Court
of Criminal Appeals that introduction of this evidence violated his right Sixth Amendment right to counsel,
as established by Maine v. Moulton, 474 U.S. 159 (1985). The respondent concedes that this claim for
relief was fully exhausted in the state courts and is ripe for review by this Court.
The Tennessee Court of Appeals framed the issue as follows:
As noted previously, once a defendant’s Sixth Amendment right to counsel has attached,
the State may not directly or indirectly obtain incriminating statements from a defendant
concerning the charged offense outside the presence of the defendant’s counsel unless
the defendant voluntarily and knowingly waives his right to counsel. [Michigan v.] Harvey,
494 U.S. [344,] 349 [(1990)]; Brewer [v. Williams], 430 U.S. [387,] 405 [(1977)]; Massiah,
377 U.S. at 206. Incriminating statements concerning an indicted offense obtained in
violation of the Sixth Amendment are not admissible in a trial of the offense for which the
defendant has been formally charged at the time the statements were made. See
Massiah, 377 U.S. at 206. On the other hand, a defendant’s voluntary statements
concerning a crime for which he or she has not yet been charged are not afforded Sixth
Amendment protection. Such statements are admissible in a subsequent trial of the
previously uncharged offense because the Sixth Amendment right to counsel had not yet
attached to the uncharged offense. [Texas v.] Cobb, 532 U.S. [162,] 173 [(2001)]. What is
not specifically addressed in these United States Supreme Court opinions is whether an
indicted defendant’s voluntary statements about a separate offense for which he or she
has not been formally charged are admissible, if relevant, in the trial of the indicted
offenses.
The issue is whether Defendant’s statements to Mr. Farris which incriminate
Defendant in the murder of Janet March, but do not include comments directly about the
homicide of Janet March, were obtained in violation of the Sixth Amendment.
March, 395 S.W.3d at 774–75 (internal citations to state court opinions omitted).
The Tennessee Court of Criminal Appeals ultimately concluded that “the admission of
Defendant’s statements to Mr. Farris concerning the as yet uncharged conspiracy to kill the Levines in his
39
trial for the murder of Janet March did not violate Defendant’s Sixth Amendment right to counsel.” Id. at
779. In reaching that conclusion, the court considered and rejected March’s argument that the Supreme
Court’s holding in Maine v. Moulton, as interpreted by the First Circuit in United States v. Bender, 221
F.3d 265 (1st Cir. 2000), should apply in his case. Moulton, like the case at bar, involved the admissibility
of a defendant’s uncounseled post-indictment statements to a co-defendant who was operating as an
undercover agent for the State, but the statements were directly incriminating as to the already-charged
crimes. In that case, Moulton and his co-defendant, Colson, were both indicted by a county grand jury in
Maine on multiple counts of receiving stolen property. Both defendants retained counsel, entered pleas of
not guilty and were released on bound. Prior to trial, Colson indicated to the local chief of police that he
wished to meet with the police to talk about the charges against him. Before that meeting occurred,
Colson met with Moulton to plan for their upcoming trial. During the discussion, Moulton suggested the
possibility of killing Gary Elwell, a witness for the prosecution, and the two defendants discussed how to
commit the murder. A few days later, Colson and his attorney met with police authorities. Colson made a
full confession of his participation with Moulton in the crimes with which they were charged, and admitted
to participating in other crimes as well. Colson also discussed with the police Moulton’s inchoate plan to
kill Elwell. The police offered Colson a deal under which no further charges would be brought against
Colson in exchange for his agreement to testify against Moulton and otherwise cooperate in the
prosecution of Moulton on the pending charges. Colson agreed.
As part of that agreement, Colson consented to wear a body transmitter to record what was said
at a meeting between Colson and Moulton. The police knew that the express purpose of the meeting was
for the two to discuss their planned defense at the approaching trial on the indicted offenses. At the
meeting between the co-defendants, the police recorded a lengthy conversation during which Moulton
expressly abandoned any plan to kill the witness Elwell, but, as expected, made numerous statements
incriminating him in the already-pending charges, several of which were deliberately drawn out by Colson
by claiming not to remember certain details and by reminiscing about other details of various crimes they
had committed together. Moulton’s recorded statements were later admitted into evidence against him at
trial.
Molson was found guilty on the charges covered in the original indictments and several new
40
charges as well. He appealed generally on the ground that the admission into evidence of his recorded
statements to Colson violated his Sixth Amendment right to counsel. The Supreme Judicial Court of
Maine remanded for a new trial, holding that, as to the admission of Moulton’s recorded statements to
Colson, the prosecution could not use against Moulton at trial recordings of conversations where the state
knew or should have known that Moulton would make incriminating statements regarding crimes as to
which charges were already pending, regardless of whether the police had wired Colson for an admittedly
legitimate purpose, i.e., investigating threats against witnesses. It further determined that Moulton’s
statements might be admissible in the investigation or prosecution of charges for which, at the time the
recordings were made, adversary proceedings had not yet commenced and the Sixth Amendment right to
counsel had not yet attached. The Supreme Court of the United States granted the state’s petition for
certiorari, and affirmed the decision of the Supreme Judicial Court of Maine.
Justice Brennan, writing for the majority, framed the issue as follows:
The question presented in this case is whether respondent’s Sixth Amendment right
to the assistance of counsel was violated by the admission at trial of incriminating
statements made by him to his codefendant, a secret government informant, after
indictment and at a meeting of the two to plan defense strategy for the upcoming trial.
Moulton, 474 U.S. at 161. In addressing this issue, the Court reviewed its holdings in Massiah and United
States v. Henry, 447 U.S. 264 (1980), and rejected the state’s contention that the decisive fact in those
cases was that the police had set up the confrontation between the accused and a police agent. Justice
Brennan wrote:
The Sixth Amendment guarantees the accused, at least after the initiation of formal
charges, the right to rely on counsel as a ‘medium’ between him and the state. As noted
above, this guarantee includes the state’s affirmative obligation not to act in a manner
that circumvents the protections accorded the accused by invoking this right. The
determination whether particular action by state agents violates the accused’s right to the
assistance of counsel must be made in light of this obligation. Thus, the Sixth
Amendment is not violated whenever—by luck or by happenstance—the state obtains
incriminating statements from the accused after the right to counsel has attached.
However, the knowing exploitation by the state of an opportunity to confront the accused
without counsel being present is as much a breach of the state’s obligation not to
circumvent the right to the assistance of counsel as is the intentional creation of such an
opportunity. Accordingly, the Sixth Amendment is violated when the state obtains
incriminating statements by knowingly circumventing the accused’s right to have counsel
present in a confrontation between the accused and a state agent.
474 U.S. at 176. Applying that principle to the facts of the case, the Moulton decision noted that the police
suggested to Colson that he record the conversation during his meeting with Moulton and arranged for
41
the recording, knowing that Moulton and Colson were meeting for the express purpose of discussing
pending charges and planning a defense to those charges. The Court found that, by concealing the fact
that Colson was an agent of the state, the police denied Moulton the opportunity to consult with counsel
and thus denied him the assistance of counsel guaranteed by the Sixth Amendment.
The Court expressly reaffirmed its holding in Massiah, regarding the propriety of “continu[ing] an
investigation of the suspected criminal activities of the defendant and his alleged confederates, even
though the defendant had already been indicted.” Id. at 178. The holding in Moulton was expressly limited
to its facts: “All that we hold is that the defendant’s own incriminating statements, obtained by federal
agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as
evidence against him at his trial.” Id. In a footnote, the Moulton Court added: “Incriminating statements
pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course,
admissible at a trial of those offenses.” Id. at 180 n.16.
To this Court’s knowledge, only the First Circuit has considered and applied Moulton in a case
involving a factual scenario similar to that presented here. In Bender, the defendant, while in jail awaiting
trial on charges of being a felon in possession of a firearm, conversed with an undercover government
agent concerning his plot to falsify an alibi and possibly kidnap and murder government witnesses. The
agent was specifically instructed not to discuss the pending felon-in-possession charges. After the
government informed the defendant that it would seek to introduce his statements in the pending criminal
case, he moved to have them suppressed. Applying Maine v. Moulton, 474 U.S. 159 (1985), the district
court found that the statements were incriminating and obtained in violation of the Sixth Amendment, and
therefore granted the motion to suppress. On appeal, the government argued that admission of the
statements would not violate the Sixth Amendment because the statements concerned future, unindicted
crimes unrelated to the pending charges and were not directly incriminating as to the already-indicted
charges, and that the government did nothing wrong in obtaining the statements.
The First Circuit rejected both arguments and affirmed on the basis of Moulton and other
Supreme Court precedent, as follows:
A person is “denied the basic protections of [the Sixth Amendment’s] guarantee [of
the right to counsel] when there was used against him at his trial evidence of his own
incriminating words, which federal agents had deliberately elicited from him after he had
been indicted and in the absence of his counsel.” Massiah v. United States, 377 U.S.
42
201, 206 (1964). . . . And, as noted in Moulton, “what use is a defendant’s right to
effective counsel at every stage of a criminal case if, while he is held awaiting trial, he
can be questioned in the absence of counsel until he confesses?” Moulton, 474 U.S. at
171 (internal quotation marks and citation omitted).
Thus, the accused is guaranteed, “at least after the initiation of formal charges, the
right to rely on counsel as a ‘medium’ between him and the State.” Id. at 176. It is
irrelevant who initiates the conversation that is likely to induce the accused to make
incriminating statements without the assistance of counsel. See id. at 174–75; United
States v. Henry, 447 U.S. 264, 270–75 (1980). Although “the Sixth Amendment is not
violated whenever—by luck or happenstance—the State obtains incriminating statements
from the accused after the right to counsel has attached,” the “knowing exploitation by the
State of an opportunity to confront the accused without counsel being present is as much
a breach of the State’s obligation not to circumvent the right to the assistance of counsel
as is the intentional creation of such an opportunity.” Moulton, 474 U.S. at 176. Further,
“that the State ‘must have known’ that its agent was likely to obtain incriminating
statements from the accused in the absence of counsel suffices to establish a Sixth
Amendment violation.” Moulton, 474 U.S. at 176 n.12. The government, here, does not
ask us to rethink the rule in Moulton, nor does it argue that the incriminating statements
were obtained by luck or happenstance.
Instead, the government contends, primarily, that, since the incriminating statements
concerned different and future crimes, unrelated, it says, to the pending charges, the
Sixth Amendment does not apply. We disagree. The statements were incriminating not
only as to future crimes (perjury, conspiracy to kidnap and murder) but also as to the
pending charges. So long as the statements were incriminating as to the pending
charges and were deliberately elicited by government agents, they cannot constitutionally
be admitted in the trial of those charges. Cf. id. at 180 (holding that the Sixth Amendment
does not permit the introduction of directly incriminating statements obtained during the
investigation of other crimes).
At bottom, the government’s position is that Moulton is limited to direct statements by
the defendant about the crime with which he has been charged. Nothing in Moulton
supports that limitation, and Sixth Amendment jurisprudence is to the contrary. See
Massiah, 377 U.S. at 207. All that matters is that the statements were incriminating as to
the pending charges; it does not matter how. So while Bender’s statements suborning
perjury did not provide direct evidence in the pending case (e.g., underlying facts, details,
and strategy) or amount to an explicit confession, they “strongly tended to show that a
guilty mind was at work.” United States v. Lozada-Rivera, 177 F.3d 98, 107 (1st Cir.
1999) (suppressing similar jailhouse statements because of Sixth Amendment violation).
It was obvious that questioning Bender about a false alibi for the underlying charges
would result in his making incriminating statements as to those charges. The same was
true of a plot to do away with government witnesses. Bender’s statements, therefore,
were likely to be incriminating as to the pending charges, were deliberately elicited postindictment, and were obtained in the absence of counsel. . . .
The government argues, as well, that suppression is illogical because the district
court found that the government did nothing wrong. The same argument was presented
and rejected in both Massiah and Moulton. See Massiah, 377 U.S. at 207; Moulton, 474
U.S. at 179. Though the government might be investigating entirely separate crimes,
“dual purposes may exist whenever police have more than one reason to investigate
someone.” Moulton, 474 U.S. at 179 n.15. That the government might have other
legitimate reasons for confronting a person who is accused does not eliminate the
violation of the right as it pertains to the pending charges. See id. at 179–80; see also id.
at 180 (“To allow the admission of evidence obtained from the accused in violation of his
Sixth Amendment rights whenever the police assert an alternative, legitimate reason for
43
their surveillance invites abuse by law enforcement personnel in the form of fabricated
investigations and risks the evisceration of the Sixth Amendment right recognized in
Massiah.”).
Bender, 221 F.3d at 268–70 (footnotes and some citations omitted).
Instead of adopting the Bender court’s reasoning and its construction of Moulton, the Tennessee
court reaffirmed the decision reached in an earlier decision from the Tennessee Court of Criminal
Appeals, State v. Snyder, No. 03C01-9403-CR-00101, 1995 WL 687581 (Tenn. Ct. Crim. App. Nov. 21,
1995), which was also in a procedural posture similar to that here. The Snyder court had held that
the tape-recorded statements of the defendant did not include any information about the
crimes with which he had already been charged. The defendant was not directly
incriminated by the content. From all outward appearances, the purposes of the “wire”
was to corroborate evidence of [the defendant’s] attempt to get [another inmate, who,
unbeknownst to defendant was acting as an informant,] to testify falsely. Thus, the
admission of those statements, evidence of the defendant’s guilt of a separate offense,
did not compromise his right to counsel on the initial charges.
March, 395 S.W.3d at 777 (quoting Snyder, 1995 WL 687581, at *4 (citing Greico v. Meachum, 533 F.2d
713, 717 (1st Cir.1976)).
In response to March’s argument that the holding in Greico, which predated Moulton, had been
abrogated by Bender, also from the First Circuit, the Tennessee court noted that the Snyder decision also
relied on United States v. Moschiano, 695 F.2d 236 (7th Cir. 1982), in which the Seventh Circuit
concluded that post-indictment statements concerning a separate crime which did not refer to the charged
offense may be introduced, if relevant, in a trial on the charged offenses. The Tennessee court did not
note that Moschiano also predated Moulton, but did observe that in March’s case, unlike the situation in
Moulton, “there [was] no evidence in the record that using Mr. Farris to obtain more information about the
conspiracy plot was merely a ruse by the State to encourage incriminating statements from Defendant
about the charged offenses.” March, 395 S.W.3d at 778 (citing Moschiano, 695 F.2d at 242–43; United
States v. Anderson, 523 F.2d 1192, 1195–96 (5th Cir. 1975)). The court found Snyder particularly
persuasive because there was likewise no evidence in that case of a ruse to obtain information about the
charges on which the defendant had already been indicted. The court ultimately held that the admission
of March’s recorded statements to Farris “concerning the as yet uncharged conspiracy to kill the Levines
in his trial for the murder of Janet March did not violate [March’s] Sixth Amendment right to counsel.”
March, 395 S.W.3d at 779.
44
As set forth above, habeas relief may not be granted unless the petitioner establishes that the
state court’s adjudication of this claim “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.” 28 U.S.C. § 2254(d)(1). Consequently, the issue before this Court is whether the
Tennessee court’s decision was contrary to or amounted to an unreasonable application of the law as
clearly established by Moulton and its predecessors to the facts of this case.
The Supreme Court has issued a series of decisions establishing the standard of review in
habeas cases for applying § 2254(d)(1). In Williams v. Taylor, 529 U.S. 362, 404 (2000), the Court
emphasized that the “contrary to” and “unreasonable application of” clauses should be accorded
independent meaning. A state-court decision may be found to violate the “contrary to” clause under two
circumstances:
A state-court decision will certainly be contrary to our clearly established precedent if the
state court applies a rule that contradicts the governing law set forth in our cases. . . . A
state-court decision will also be contrary to this Court’s clearly established precedent if
the state court confronts a set of facts that are materially indistinguishable from a
decision of this Court and nevertheless arrives at a result different from our precedent.
Accordingly, in either of these two scenarios, a federal court will be unconstrained by §
2254(d)(1) because the state-court decision falls within that provision’s “contrary to”
clause.
Id. at 405–06 (citations omitted). See also Price v. Vincent, 538 U .S. 634, 640 (2003); Lockyer v.
Andrade, 538 U.S. 63, 73 (2003); Bell v. Cone, 535 U.S. 685, 694 (2002). The Tennessee court did not
apply a rule contradicting clearly established Supreme Court precedent, and the facts of this case are not
“materially indistinguishable” from those of Moulton or any other Supreme Court case of which this Court
is aware.7 The “contrary to” standard does not apply in this case.
7
Section 2254(d)(1) refers to “clearly established” federal law, “as determined by the Supreme
Court of the United States.” This provision “expressly limits the source of law to cases decided by the
United States Supreme Court.” Harris v. Stovall, 212 F.3d 940, 944 (6th Cir. 2000). As the Sixth Circuit
has explained:
This provision marks a significant change from the previous language by referring only to law
determined by the Supreme Court. A district court or court of appeals no longer can look to lower
federal court decisions in deciding whether the state decision is contrary to, or an unreasonable
application of, clearly established federal law.
Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1999)(citing 17A C. Wright, A. Miller & E. Cooper, Federal
Practice and Procedure § 4261.1 (2d ed. Supp. 1998)); see also Harris, 212 F.3d at 944 (“It was error for
the district court to rely on authority other than that of the Supreme Court of the United States in its
analysis under § 2254(d).”). In determining whether a rule is “clearly established,” a habeas court is
45
A federal court may also grant the writ under the “unreasonable application” clause “if the state
court correctly identifies the governing legal principle from [the Supreme Court’s] decisions but
unreasonably applies it to the facts of the particular case.” Cone, 535 U.S. at 694; see also Andrade, 538
U.S. at 75; Williams, 529 U.S. at 409.8 “[A]n unreasonable application of federal law is different from an
incorrect application of federal law.” Williams, 529 U.S. at 410. “[A] federal habeas court making the
‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established
federal law was objectively unreasonable.” Id. at 409. See also Andrade, 538 U.S. at 75 (holding that the
lower court erred by equating “objectively unreasonable” with “clear error,” and noting that “[t]hese two
standards . . . are not the same”); Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam) (holding that
the lower court “did not observe this distinction [between an incorrect and an unreasonable application of
federal law], but ultimately substituted its own judgment for that of the state court, in contravention of 28
U.S.C. § 2254(d)”).
Ultimately, this Court does not find that the Tennessee court’s decision amounted to an
unreasonable application of federal law. First, March’s arguments to the contrary notwithstanding, the
facts in Moulton are materially distinguishable from those here. The police in March’s case did not
intentionally set out to elicit information, through a confidential informant, concerning crimes for which
March had already been indicted. Second, the information elicited by Farris was not directly related to the
charges on which March had already been indicted, even though the information, as the Bender court
stated, “strongly tended to show that a guilty mind was at work.” Bender, 221 F.3d at 269 (citation
entitled to rely only on “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the
time of the relevant state-court decision.” Williams, 529 U.S. at 412.
8
Although the Supreme Court in Williams recognized, in dicta, the possibility that a state-court
decision could be found to violate the “unreasonable application” clause when “the state court either
unreasonably extends a legal principle from our precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply,” 529 U.S. at 407,
the Supreme Court expressed a concern that “the classification does have some problems of precision,”
id. at 408. The Williams Court concluded that it was not necessary “to decide how such ‘extension of legal
principle’ cases should be treated under § 2254(d)(1),” id. at 408–09. In Yarbrough v. Alvarado, 541 U.S.
652, 666 (2004), the Supreme Court further stated:
Section 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established
under the guise of extensions to existing law. Cf. Teague v. Lane, 489 U.S. 288 (1989). At the
same time, the difference between applying a rule and extending it is not always clear. Certain
principles are fundamental enough that when new factual permutations arise, the necessity to
apply the earlier rule will be beyond doubt.
46
omitted). The Tennessee state court was clearly cognizant of the relevant precedent; it considered the
applicable cases at length; it took note of the distinguishing facts in March’s case; and in the end it simply
did not construe Moulton in the same way as the First Circuit Court of Appeals. That circuit court’s opinion
clearly had no precedential or binding effect in the Tennessee state court, and the Tennessee court’s
decision was not objectively unreasonable.
In addition, however, the Tennessee Court of Criminal Appeals found that, even if admission of
the evidence had violated the Sixth Amendment, “such error was harmless beyond a reasonable doubt.”
March, 395 S.W.3d at 779. Even if this Court were to presume that the Tennessee court’s decision
amounted to an unreasonable application of clearly established federal law, the harmless error analysis,
as discussed above, applies in those instances where statements are obtained and introduced into
evidence under circumstances that violate the Sixth Amendment right to counsel. See Milton v.
Wainwright, 407 U.S. 371, 372–73 (1972) (holding that the error, if any, in the admission of postindictment, pretrial confession obtained by a police officer who posed as fellow prisoner confined in cell
with petitioner was harmless beyond a reasonable doubt, where the jury, “in addition to hearing the
challenged testimony, was presented with overwhelming evidence of petitioner’s guilt”). For purposes of
federal habeas review, a constitutional error that implicates trial procedures is considered harmless if it
did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993).
Under that standard, the Court finds that if there was any error in admitting the evidence at issue,
it did not have a substantial and injurious effect or influence on the verdict. As an initial matter, even if the
tape recordings of the conversations between Farris and March, obtained while Farris was working as a
government agent, had been excluded, evidence of that plot would have been introduced in different
form, including Farris’s testimony that he and March had been discussing the conspiracy for
approximately a month before Farris went to the police with the information, as well as Farris’s recorded
conversations with Arthur March, and Arthur March’s confession. Thus, the tape recordings of Farris’s
and Perry March’s conversations were effectively cumulative and unlikely to have had a significant impact
on the jury. Further, evidence of the conspiracy to kill the Levines was not directly related to the question
of whether Perry March was guilty of murdering Janet March, and as such was not likely to have had a
47
substantial impact on the jury’s decision of whether March was guilty of actual murder. And finally, as
discussed above in connection with March’s other Sixth Amendment claim, the evidence arrayed by the
State against him, though primarily circumstantial, nonetheless was fairly weighty in terms of both volume
and substance.
In sum, the Court concludes that even if the statements had been suppressed, the result would
have been the same. Regardless of whether a Sixth Amendment violation occurred, March is not entitled
to relief on the basis of this claim, because the error, if any, in admitting the challenged statements into
evidence did not have a substantial, injurious effect on the jury’s verdict.
Ground 7: That the cumulative effect of the errors identified in the habeas petition
rendered the petitioner’s trial fundamentally unfair, such that his convictions
violate the constitutional due process guaranties.
Even if the Court assumes for the sake of argument that the state court violated March’s
constitutional rights both in its admission of statements made by March to Postiglione during his transport
from Los Angeles to Nashville and the recorded statements made by March to Nathanial Farris while
Farris was functioning as a government agent, the Court nonetheless concludes that the evidence
admitted over March’s objections, considered cumulatively, did not have a substantial, injurious effect on
the jury’s verdict. The Court has already concluded that Postiglione’s testimony about March’s statements
during the trip from Los Angeles to Nashville did not affect the verdict. Evidence of March’s recorded
conversations with Farris added very little to the overall equation.
III
CONCLUSION
For the reasons set forth herein, the Court finds that March’s petition is without merit. His claims
for relief will therefore be denied, and this matter dismissed.
The Court must issue or deny a certificate of appealability (“COA”) when it enters a final order
adverse to a § 2254 petitioner. Rule 11, Rules Gov’g § 2254 Cases. The petitioner may not take an
appeal unless a district or circuit judge issues a COA. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A
COA may issue only if the petitioner “has made a substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), and the COA must “indicate which specific issue or issues satisfy the
[required] showing . . . .” 28 U.S.C. § 2253(c)(3). A “substantial showing” is made when the petitioner
demonstrates that “‘reasonable jurists could debate whether (or, for that matter, agree that) the petition
48
should have been resolved in a different manner or that the issues presented were “adequate to deserve
encouragement to proceed further.”‘” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000). “[A] COA does not require a showing that the appeal will succeed.”
Miller-El, 537 U.S. at 337. Courts should not issue a COA as a matter of course. Id.
In this case, the petitioner has “made a substantial showing of the denial of a constitutional right,”
28 U.S.C. § 2253(c), and has demonstrated that reasonable jurists could debate whether this petition
should have been resolved differently. The Court will grant a COA as to each of the claims raised in the
petitioner’s habeas petition, as amended.
An appropriate order will enter.
Kevin H. Sharp
United States District Judge
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