Filed: Aug. 10, 2004
Latest Update: Apr. 11, 2017
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-10-2004 Reinert v. Larkins Precedential or Non-Precedential: Precedential Docket No. 02-3184 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Reinert v. Larkins" (2004). 2004 Decisions. Paper 374. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/374 This decision is brought to you for free and open access by the Opinions of the United
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-10-2004 Reinert v. Larkins Precedential or Non-Precedential: Precedential Docket No. 02-3184 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Reinert v. Larkins" (2004). 2004 Decisions. Paper 374. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/374 This decision is brought to you for free and open access by the Opinions of the United S..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
8-10-2004
Reinert v. Larkins
Precedential or Non-Precedential: Precedential
Docket No. 02-3184
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Reinert v. Larkins" (2004). 2004 Decisions. Paper 374.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/374
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PRECEDENTIAL
THEODORE SIMON, ESQ. (ARGUED)
Fifth Floor
IN THE UNITED STATES COURT OF 1600 Market Street
APPEALS Philadelphia, PA 19103
FOR THE THIRD CIRCUIT
_________________ Attorney for Appellant
NO. 02-3184
_________________ JAMES B. M ARTIN, ESQ.
District Attorney of Lehigh County
JOAN L. REINSMITH, ESQ.
SCOT A. REINERT, (ARGUED)
Deputy District Attorney
Appellant KELLY B. WALDRON, ESQ.
Office of District Attorney
v. 455 West Hamilton Street
Lehigh County Courthouse
DAVID H. LARKINS, Allentown, PA 18101
SUPERINTENDENT;
DISTRICT ATTORNEY OF LEHIGH Attorneys for Appellees
COUNTY,
JAMES MARTIN; *THE ATTORNEY _________________
GENERAL OF
PENNSYLVANIA, GERALD OPINION OF THE COURT
PAPPERT _________________
*(Pursuant to Rule 43(c) F.R.A.P)
_________________
BECKER, Circuit Judge.
On Appeal from the United States This appeal by Scot A. Reinert
District Court For (“Reinert”), a state prisoner serving a
The Eastern District of Pennsylvania sentence of life imprisonment for first
(D.C. No. 98-cv-05257) degree murder, from an order of the
District Judge: Honorable Anita Brody District Court denying his petition for a
______________________ writ of habeas corpus, presents two
congeries of issues, one dealing with
Argued May 3, 2004 Miranda rights, and the other with
ineffective assistance of counsel.
Before: SLOVITER, FUENTES and Considering the Miranda issues first, we
BECKER, Circuit Judges must evaluate the admissibility of three
statements made by Reinert when he was
(Filed: August 10, 2004) being transported to the hospital by
emergency medical technicians (“EM Ts”), Reinert was in custody and that his pre-
accompanied by police officers. The Miranda statement should not have been
admissibility of the first two statements— admitted. Deference is not due to the state
one to an EMT and the other to an officer, trial judge’s finding and conclusion to the
both of which were given prior to the contrary because she mistakenly stated that
a d m i n i s t r at i o n of an y M i r a n d a the second statement was post-Miranda
warnings—turns on whether Reinert was warning. However, due to the fact that the
in custody at the time he made the statement was duplicative of others
statements. The admissibility of the third properly received after appropriate
statement, made to a police officer after a Miranda warnings were administered, we
Miranda warning had been given, depends conclude that the error was harmless.
on Reinert’s competence at the time to
Additionally, we are satisfied that when
waive his Miranda rights. Then we must
the post-Miranda statement in the
determine whether Reinert was competent
ambulance and the subsequent (post-
to waive his Miranda rights when he made
surgery) statement was made at the
a statement to two detectives at the
hospital, Reinert was alert and oriented
hospital following surgery. We do not, of
and that his waiver of Miranda rights was
course, either write or decide on a blank
voluntary. The state trial court decision, in
slate. The record contains fact findings by
accord with these conclusions, was not
the state trial judge following a
based on an unreasonable determination of
suppression hearing, and our decision
the facts in light of the evidence presented
making is constrained by the rigorous
in the state court proceedings, nor was it
standard of review under the Antiterrorism
contrary to or an unreasonable application
and Effective Death Penalty Act of 1996
of clearly established federal law as
(“AEDPA”), codified in relevant part at 28
determined by the United States Supreme
U.S.C. §§ 2241-2255.
Court.
We are satisfied that, at the time of
The second set of issues before us
Reinert’s first statement, made to an EMT
stems from Reinert’s claims of ineffective
when he was being transported to the
assistance of counsel allegedly in violation
hospital for treatment (at which time he
of his Sixth Amendment rights. First, he
was not a crime suspect and indeed was
complains of his state trial counsel’s
considered a possible victim), he was not
failure to call a medical expert to testify at
in custody, even though a police officer
the suppression hearing as to his alleged
was present in the ambulance. However,
mental and physical inability to voluntarily
with respect to the second statement made
and knowingly waive his Miranda rights.
in the ambulance to a police officer to
However, our analysis of the record will
whom Reinert was “turned over” by the
show that the expert testimony that Reinert
E M T a f t e r h is f ir s t se e m i n g ly
believed would have helped him would
incriminating statement, we conclude that
have made no difference to the merits of
2
his Miranda claim. He also scores his Shortly after Mertz’s arrival, three
counsel’s failure to inform him of his right more Allentown police officers, Bruce
to testify at the suppression hearing, but Zimmerman (“Zimmerman”), Robert
we conclude that this claim too lacks Lembach (“Lembach”), and Brian Brader
merit. Reinert has thus failed to (“Brader”), arrived at Reinert’s home,
demonstrate that he was prejudiced by his followed by the EMTs. Law enforcement
counsel’s actions; moreover the state officers secured the home. The EMTs
court’s conclusions on the issue were not examined Reinert; his blood pressure was
contrary to or an unreasonable application down and his pulse rate was up. The
of clearly established federal law as EMTs helped Reinert to his feet and he
determined by the United States Supreme then walked to the ambulance. At this
Court. juncture, Zimmerman was ordered by his
superiors to remain with Reinert and told
We will therefore affirm the order of
“not to let him leave your custody.”
the District Court denying the petition.
Reinert was laid on a stretcher inside
the ambulance, had an oxygen mask placed
I. Background Facts over his face, was given IVs in his arms,
and was hooked up to an
On March 10, 1991, responding to a
electrocardiograph. Reinert had been
telephone call during which Reinert made
observed to have lacerations to his wrists
some rather bizarre statements, his mother
and he complained of an injured ankle.
Janet Ketner and her husband rushed to his
When he was in the ambulance, the EMTs
home and found him sitting on the first
noticed multiple lacerations to his
floor covered in blood, with large, visible
abdomen. Upon discovery of the
slashes on both wrists. Mr. Ketner called
abdominal wound, EMT Timothy Snyder
911, describing Reinert as delirious.
(“ Sn yd e r ” ) a s k ed Re ine r t “ w h a t
Police and ambulance services soon
happened?” Reinert responded “I stabbed
arrived. Reinert looked strange, and it was
him with a butcher knife, then I did
determined that he had recently attempted
myself.” Snyder at once turned to Officer
suicide by drinking alcohol, taking
Zimmerman and stated, “I think you ought
sleeping pills, and slashing his wrists. At
to step in.”
12:11 p.m., Officer Jeffrey Mertz
(“Mertz”) arrived, checked on Reinert and Zimmerman then, without advising
his parents in the first floor living room, Reinert of his Miranda rights, asked him
and then went upstairs to check the “what happened?” Reinert responded to
parents’ report of a body on the third floor. the question by stating, “I think I killed
When Mertz reached the third floor, he him. I think I stabbed him.” At that point,
found the body of Sean Brady, Reinert’s Zimmerman read Reinert his Miranda
long time companion, and determined that rights. See infra note 3. After reading
he was dead. Reinert his rights, Zimmerman asked him:
3
“And with these rights in mind, do you At 7:47 p.m., Detectives Joseph
wish to talk to us now?” Reinert replied: Stauffer (“Stauffer”) and Glenn Granitz
“I think I killed him.” When asked whom (“Granitz”) arrived at the hospital. The
he had killed, Reinert responded: “Sean, detectives first spoke to the attending
Sean Brady,” “with a butcher knife.” physician, Dr. Homayoun Hashemi (“Dr.
Hashemi”), wh o testified that he
Once at the Lehigh Valley Medical
performed a post-operative check at 7:30
Center (“LVMC”), Reinert underwent
p.m. on Reinert, and found him awake,
preparatory treatment for surgery by
coherent, and with stable vital signs. After
Nurses Thomas Gavigan and Patricia
conferring with Dr. Hashemi, the
Lombardo. Police officers were ordered
detectives went to see Reinert. They
by their superiors to stand guard outside
testified that they found him conscious,
his room.1 Reinert entered surgery at
oriented, alert, and responsive. They
approximately 1:15 p.m. Prior to surgery,
proceeded to interview him while he was
Reinert was, of course, anesthetized.
laying in the recovery room, wrists and
Surgery lasted approximately two and one-
abdomen bandaged, attached to IVs and
half hours. Reinert lost about half a pint of
other post-operative equipment. They first
blood during the operation; he had also
read him his Miranda rights. The two
lost a quart of blood prior to being treated
detectives present differing accounts as to
by the EMTs. Reinert experienced post-
how Reinert responded to the question:
operative pain, and was given Robinal, a
“Do you waive these [Miranda] rights?”
sedative and muscle relaxant, at 3:30 p.m,
Stauffer stated that Reinert answered the
and Cefoxitan, an antibiotic, at 6:00 p.m.
question verbally with a “yes,” whereas
Granitz said that Reinert merely nodded
his head. Both detectives, however,
1 agreed that Reinert clearly communicated
Zimmerman asked Gavigan prior to
to them his decision to waive his Miranda
Reinert’s treatment, at the doors of the
rights.
trauma room, “to note down anything
that Reinert said which may be of use to The detectives then questioned him for
him.” During this surgical preparation, forty-five minutes, during which Reinert
Gavigan asked Reinert some questions, stated that he had obtained a knife, had
to which Reinert responded that he had gone to see Sean Brady, who was in bed,
been fighting with his friend with a and stabbed him. Reinert’s chart
knife, they had fallen off the bed and that indicated no abnormality with regard to his
he, the friend, might have done this. ability to answer questions appropriately.
Reinert also acknowledged he might Dr. Hashemi also testified that the first
have wounded himself, and that he had administration of medication for pain,
fallen down the stairs. However, spec ifically m orphine, was not
Reinert’s response to the nurse is not at administered to the defendant until 10:00
issue on appeal.
4
p.m. We will amplify this factual indicative that the defendant was in
background in our discussion of the their custody. Their presence
procedural history and the merits issues, would be explained by many
infra. things, including a desire to
interview an important witness or a
desire to protect a potential victim.
II. Procedural History
We conclude therefore that the
On or about March 10, 1991, Reinert statement made to paramedic
was arrested and charged with the criminal Snyder was not made while the
homicide of Sean Brady. Pre-trial defendant was in custody and,
motions, including motions to suppress furthermore, that it was not made
physical evidence and statements, were pursuant to interrogation by police
heard before Judge Carol K. McGinley of officers.
the Court of Common Pleas of Lehigh
Second, the suppression court concluded
County. After a hearing, the suppression
that:
motions were denied.
The defendant remained
The suppression court made a number
conscious, alert and oriented
of relevant findings. First, it rejected
throughout his transport to the
Reinert’s claim that his pre-Miranda
hospital. No medication was
statement should be dismissed, finding that
administered to him in the care of
the statement was “volunteered by the
the Emergency Medical Service
defendant to Paramedic Snyder . . . in
Unit.
response to a routine question by
paramedic Snyder.” The court further Then, after describing his treatment in the
concluded that: emergency room, the Court found that
Reinert
. . . although the police were
present, there is nothing in the . . . remained alert and coherent.
situation which would lead a H e responded to questions
reasonable man to believe that he concerning allergies to medication
was under arrest or in the custody and to the approximate time of his
of the police. The arrival of the most recent tetanus inoculation. He
police at the scene was due to a indicated he was allergic to
request made on his behalf by his penicillin. Ms. Lombardo observed
mother and her husband, and the that his blood pressure was stable,
defendant’s transport to the that his pulse was providing him
Hospital Center was voluntary on with adequate oxygenation to the
his part. The mere fact that police brain, and she performed the
were present was not in any way Glasgow coma score to determine
5
his level of consciousness. In all The defendant, upon
categories the defendant received questioning by Detective Stauffer,
the highest possible score. made incriminating statements. In
the course of making these
Turning to the next phase of the
statements the defendant was
treatment, the surgery, from which Reinert
volu ble , and volunteere d
returned at approximately 4:05 p.m., the
information not specifically sought
suppression court found:
by Detective Stauffer. The
At 7:47 p.m. Detective Stauffer questioning ended at 8:30 p.m.
arrived at the hospital with
Dr. Hashemi testified that he
Detective Granitz. After speaking
had performed a post-operative
to the attending physician, Dr.
check at 7:30 p.m. on the
Homayoun Hashemi, the detectives
defendant, that he had seen that the
proceeded to interview the patient.
defendant was awake, coherent,
The questioning began at least five
and had stable vital signs. His
hours after the defendant’s surgery
chart indicated no abnormality with
had been completed.
regard to the defendant’s ability to
Detective Stauffer determined answer questions appropriately.
that the patient was conscious and Dr. Hashemi also testified that the
oriented. He asked him his date of first administration of medication
birth and his social security for pain, specifically morphine, was
number, both of which were later not administered to the defendant
verified as accurate. He asked him until 10:00 p.m.
other questions to determine
Immediately following his
whether or not the defendant was
statements to the police, the
aware of his surroundings and
defendant was seen by his family,
received satisfactory answers.
his close friend Cindy Mellinger,
After determining that the and his mother’s minister. All
defendant was able to be testified that he was extremely soft-
responsive, Detective Stauffer spoken at this time.
advised him of his rights, following
A jury trial commenced on January 15,
which the defendant said he
1992, resulting in a verdict of guilty of
understood his rights and he agreed
murder in the first degree. Reinert was
to speak with the police. Detective
sentenced to life imprisonment. Timely
Granitz also asked questions to
post-trial motions were denied as to all
determine the capacity of the
issues on November 15, 1994.
defendant, both at the beginning
and the end of the statement. Through new (and present) counsel,
Reinert appealed to the Pennsylvania
6
Superior Court. During that appeal psychiatric testi mon y at
Rein ert raised the issue of the suppression hearing to demonstrate
effectiveness of his trial counsel, that defendant’s mental illness
submitting a number of affidavits/letters in prevented proper w aiver of
support of his ineffectiveness claim. On Miranda rights where evidence
January 23, 1996, the Superior Court indicated defendant was aware of
denied relief on all grounds in a nature of right and consequence of
Memorandum Opinion, denying the waiver).
ineffectiveness claims without ordering an
The Superior Court also rejected Reinert’s
evidentiary hearing. Inter alia, the
contention that he was denied effective
Superior Court stated:
assistance of counsel because his attorneys
After reviewing the record, we find failed to advise him that he could testify at
that trial counsel thoroughly cross- the suppression hearing. The Court found
examined all of the that he established neither what his
C omm onw ealth’s witnesses testimony would have been, nor how it
regarding Reinert’s mental and would have altered the outcome of the
physical state at the time he was hearing. There was never an evidentiary
given Miranda warnings and when hearing on the ineffectiveness issue, which
he made statements to both the was raised for the first time in the
police and the medical staff. Pennsylvania Superior Court; the Superior
Moreover, we note that the Court rejected that claim on the basis of
Commonwealth produced the record before it.
o v er w helming evidence that
A motion for reconsideration and/or
Reinert had knowingly and
reargument was denied by the Court. A
voluntarily waived his Miranda
petition for allowance of appeal and a
rights. Thus, we conclude that trial
petition for reconsideration of denial of
counsel was not ineffective for
petition for allowance of appeal were filed
failing to call medical experts at the
and denied by the Pennsylvania Supreme
s u p p r e s si o n hea ring . See
Court on September 26, 1996, and
[Commonwealth v. Williams, 640
December 11, 1996, respectively. A
A.2d 1251 (Pa. 1994)] (counsel was
petition for a writ of certiorari was denied
not ineffective for failing to call
by the United States Supreme Court on
expert witnesses w here he
October 6, 1997. This petition for a writ
extensively cross-examined police
of habeas corpus now before us was filed
officer and doctor regarding their
on October 2, 1998, and was denied by the
testimony); see also
District Court on July 8, 2002. A motions
Commonwealth v. Logan, 549 A.2d
panel of this Court granted a certificate of
531 (Pa. 1988) (counsel was not
appealability (“COA”). Reinert continues
ineffective for failing to employ
to serve a sentence of life imprisonment
7
for murder. Because Reinert’s claims III. Admissibility of Reinert’s
were fully adjudicated in state court, we Statements
apply the by now familiar AEDPA
A. Pre-Miranda Statements to EMT
standard of review, which we set forth in
Snyder and Officer Zimmerman
the margin.2
As we have set forth above, at the time
2
Although our review of the District
Court’s decision is plenary, Marshall v. involves “an unreasonable application
Hendricks, 307 F.3d 36, 50 (3d Cir. of” clearly established federal law if it
2002), under AEDPA and the Supreme “unreasonably applies the law of this
Court’s decision in Williams v. Taylor, Court to the facts of a prisoner’s case.”
529 U.S. 362 (2000), we must deny Id. at 409. This is an objective test: “[A]
federal habeas corpus relief to any claim federal habeas court making the
which was adjudicated on the merits in a ‘unreasonable application’ inquiry should
state court proceeding unless such ask whether the state court’s application
adjudication: of clearly established federal law was
objectively unreasonable.” Id.
(1) resulted in a decision that was
Moreover, “unreasonable” does not mean
contrary to, or involved an
“erroneous.” Thus, “a federal habeas
unreasonable application of,
court may not issue the writ simply
clearly established Federal law, as
because that court concludes in its
determined by the Supreme Court
independent judgment that the relevant
of the United States; or
state-court decision applied clearly
(2) resulted in a decision that was established federal law erroneously or
based on an unreasonable incorrectly. Rather, that application must
determination of the facts in light also be unreasonable.” Id. at 411.
of the evidence presented in the
This standard does not apply,
State court proceeding.
however, to claims that the state courts
28 U.S.C. §§ 2254(d)(1) and (2). A state did not address on the merits. In such
court decision is “contrary to our clearly instances we exercise the pre-AEDPA
established precedent if the state court standard and “conduct a de novo review
applies a rule that contradicts the over pure legal questions and mixed
governing law set forth in our cases . . . . questions of law and fact. . . . However,
[or] if the state court confronts a set of the state court’s factual determinations
facts that are materially indistinguishable are still presumed to be correct,
from a decision of this Court and rebuttable upon a showing of clear and
nevertheless arrives at a result different convincing evidence. See 28 U.S.C. §
from our precedent.” Williams, 529 U.S. 2254(e)(1).” Appel v. Horn, 250 F.3d
at 405-06. A state court decision 203, 210 (3d Cir. 2001).
8
of his initial statement Reinert was in the that the following colloquy ensued.
ambulance being tended by the EMTs.
Q. Did M r. Reinert respond to this
After asking questions about his past
first question, “did he understand
medical history and allergies to
his right?”
medications, EMT Snyder, in an effort to
find out how the injury to the abdomen A. As best as he could, yeah, he –
was sustained, asked Reinert what they were working on him and he,
happened, receiving the response “I you know, he kind of nodded and
stabbed him with a butcher knife, then I then he said yes, or yeah.
did myself.” At this point, Snyder notified
Q. Did he actually vocalize words?
Officer Zimmerman and went on with his
treatment. When asked whether he was A. Right, yeah.
paying attention to the conversation taking
Q. He said, “yeah”, correct?
place between Officer Zimmerman and
Reinert, Snyder responded: “No, my job is A. Correct
to administer emergency care, and my
Q. And you then asked him a
patient is my priority.”
second question, and what did he
After Snyder asked Zimmerman to step respond then?
in, Zimmerman, without advising Reinert
A. He basically just said, “I think I
of his Miranda rights, asked him “what
killed him” He didn’t say yes, and
happened?” and Reinert responded to the
then go on – he just started talking.
question by stating: “I think I killed him.
I think I stabbed him.” At that point, Q. And what else did he say, or did
Zimmerman read Reinert his Miranda you ask any further questions?
rights. More specifically, Zimmerman
A. Yeah, I said, again, going back
read to Reinert the standard Miranda Card,
to that first thing, “I think I killed
the text of which we set forth in the
him, I stabbed him.” I said “Who
margin.3 At trial, Zimmerman testified
did you kill?” And he said, “Sean.”
And I asked, “Sean Brady?”
3
“My name is Officer Bruce
Zimmerman of the Allentown Police
Department. I wish to advise you that attorney one will be appointed to
you have an absolute right to remain represent you, without charge, before any
silent. That anything you say can and questioning, if you so desire. And if you
will be used against you in a Court of decide to answer any questions you may
law. That you have the right to talk to an stop at any time you wish. Do you
attorney before and have an attorney understand these rights I’ve explained to
present with you during questioning. you? And with these rights in mind, do
That if you cannot afford to hire an you wish to talk to us now?”
9
and—or he said, “Sean Brady,” I Furthermore, although the
said, “Is that the gentlemen upstairs police were present, there is
on the third floor?” He said, nothing in the situation which
“Yes.” I said, “How did you do would lead a reasonable man to
it?” He said, “With a butcher believe that he was under arrest or
knife.” in the custody of the police. The
arrival of the police at the scene
Reinert argues at great length that he
was due to a request made on his
was in custody at the time of the
behalf by his mother and her
ambulance statements. His principal
husband, and the defendant’s
contentions are the following: (1) The
transport to the Hospital Center was
police had entered his home and controlled
voluntary on his part. The mere
it (though they had entered at his mother
fact that police were present was
and stepfather’s request); (2) the
not in any way indicative that the
investigating officers were directed to
defendant was in their custody.
accompany Reinert in the ambulance and
Their presence could be explained
keep him in their custody; and (3) the
by many things, including a desire
officers were in close proximity to Reinert
to interview an important witness
in the ambulance. Reinert contends that
or a desire to protect a potential
these factors combined in such a way that
victim.
a reasonable man in his situation would
not think himself “free to leave.” We conclude, therefore, that the
statement made to paramedic
It is not entirely clear from Reinert’s
Snyder was not made while the
brief whether he objects to the statement
defendant was in custody, and,
made to the EMT or only to the one made
furthermore, that it was not made
to Zimmerman, but we will assume that
pursuant to interrogation by police
objection is made to both.
officers.
1. The pre-Miranda statement to EMT
The question, of course, is whether the
Snyder
state court’s determination that Reinert
The state trial judge found as follows: was not in custody is contrary to, or
involved an unreasonable application of,
The first statement is that
clearly established federal law, as
statement volunteered by the
determined by the Supreme Court of the
defendant to paramedic Snyder. At
United States, or resulted in a decision that
the time the statement was made, it
wa s ba se d on an u n r e a s o n a ble
was volunteered by the defendant
determination of the facts in light of the
in response to a routine question by
evidence presented in the state court
paramedic Snyder. It was not
proceeding. We do not believe that this
solicited by the police.
standard is met by Reinert with respect to
10
the statement made to the EMTs. Reinert free not to answer questions. He contrasts
was not in custody, nor was he a suspect in his situation with the one at issue in United
a crime when he entered the ambulance for States v. Leese, 176 F.3d 740 (3d Cir.
the purpose of medical treatment and 1999), where a postal employee suspected
transport to the hospital. Although police of having stolen postal funds was found
officers accompanied Reinert in the not to be in custody during the course of
ambulance, at that time officers had the an interrogation where she was told she
limited knowledge that a body was found was not under arrest, that she would not be
inside the house and that Reinert appeared made to go with her questioners when they
to be wounded. Officers could have left, and during the course of which she
reasonably assumed that Reinert was a was allowed to take breaks in order to
victim who could possibly identify a third consult with her union representative.
person that may have been in the house. Reinert argues that unlike in Leese where
Snyder stated that police officers regularly the suspect was given ample opportunity to
ride with him in the ambulance and that he end questioning and where she was
requested police officers to accompany explicitly told that she was not under
him on this occasion. arrest, Reinert was never afforded similar
information or opportunities.
Ordinarily, in determining whether an
individual is in custody, the ultimate While the difference is real, it is not
inquiry is “whether there is a ‘formal arrest dispositive. Had Zimmerman made an
or restraint on freedom of movement’ of explicit statement to Reinert that he was
the degree associated with a formal arrest.” not under arrest or that he need not answer
California v. Beheler, 463 U.S. 1121, 1125 questions, such a statement would surely
(1983) (quoting Oregon v. Mathiason, 429 have bolstered the governmen t’s
U.S. 492, 495 (1977) (per curiam)). When contention that Snyder’s questioning was
the individual has not been openly arrested non-custodial in nature. However, the
w h e n the sta tements are ma de, absence of such a statement does not ipso
“‘something must be said or done by the facto turn questioning into a custodial
authorities, either in their manner of interrogation, especially wh en the
approach or in the tone or extent of their questioning is being done by a medical
questioning, which indicates they would professional in the course of providing
not have heeded a request to depart or to routine medical care. See Mathiason, 429
allow the suspect to do so.’” Steigler v. U.S. at 495 (“[P]olice officers are not
Anderson,
496 F.2d 793, 799 (3d Cir. required to administer Miranda warnings
1974) (quoting United States v. Hall, 421 to everyone whom they question. Nor is
F.2d 540, 545 (2d Cir. 1969)). the requirement of warnings to be imposed
simply because . . . the questioned person
Reinert argues that the interrogation in
is one whom the police suspect.”) Given
the ambulance was custodial because he
that Reinert was in the ambulance
was never told that he was free to leave or
11
receiving care for an open wound and had determined by the Supreme Court.
an oxygen mask covering his face, it seems Accordingly we will affirm the order of
unlikely that he could or would have left the District Court on that issue.
the EMTs’ care, even if Zimmerman had
2. The pre-Miranda statement to Officer
told him that he was at liberty to do so.
Zimmerman
Under those circumstances, an explanation
that he was not required to answer The statement made to Officer
questions would have no doubt been more Zimmerman in response to his “what
meaningful and more approp riate. happened” question (“I think I killed him,
However, as we explained above, such a I stabbed him.”) is another matter. At that
statement, while helpful to determine the point Reinert had made an incriminating
custodial nature of the interrogation, is not statement, and when the EMT turned him
required to render an interrogation non- over to Officer Zimmerman, he had to
custodial. know that he was a suspect being
questioned by a police officer. Prior to
More to the point, although Officer
starting his question, Zimmerman should
Zimmerman was present under the
have, but failed to, read Reinert his
described circumstances, the case of
Miranda rights. The state trial judge’s
ambulance transportation is oblique to the
treatment of this matter was premised on a
core of “in custody” jurisprudence where
misapprehension or misstatement of the
the focus is on the relationship between the
facts—that Reinert had been Mirandized
officers and the suspect in terms of
already when, in fact, he had not: “The
putative coercion and freedom to leave. In
next statement made by the defendant was
our view, the presence of Zimmerman in
a statement given to Officer Zimmerman
the ambulance was a background factor in
in the ambulance. Prior to this statement,
terms of Reinert’s statement to Snyder.
Officer Zimmerman advised the defendant
Reinert had entered the ambulance
of his Miranda rights, following which the
voluntarily and was in the charge of the
defendant indicated that he wished to
EMTs who elicited the challenged
answer questions.” The Commonwealth
statement innocently (they did not know
now concedes that the judge was mistaken
Reinert to be a criminal suspect) in the
in stating that Reinert was given Miranda
course of obtaining routine medical
warnings before the statement to
information. Under these circumstances,
Zimmerman. We must therefore reject the
and others recited above, we do not think
state court’s finding with respect to the
that the state trial judge’s determination
first ambulance statement to Zimmerman.
w a s b as e d o n a n u nreasona ble
However, “[w]here a subsequent
determination of the facts in light of the
confession is obtained constitutionally, the
evidence. Nor was the legal conclusion
a dmission of pri or inad missib le
based thereon contrary to or an
confessions [is] harmless error.” United
unreasonable application of federal law as
States v. DeSumma, 272 F.3d 176, 180 (3d
12
Cir. 2001) (quoting United States v. intelligently.
Johnson, 816 F.2d 918, 923 (3d Cir.
***
1987)) (first alteration in original).
Because we conclude that Reinert made If the interrogation continues
subsequent, constitutionally obtained, without the presence of an attorney
admissible statements that mirrored his and a statement is taken, a heavy
earlier un-M irandized statement, see infra burden rests on the government to
Parts III.B and III.C, we hold that demonstrate that the defendant
admission of the initial statement was knowingly and intelligently waived
harmless error, even under the stringent his pri v i le g e a g ainst self -
constitutional error standard where we incrimination and his right to
may affirm only if the error is harmless retained or appointed counsel.
beyond a reasonable doubt. See United Escobedo v. Illinois, 378 U.S. 478,
States v. Molina-Guevara,
96 F.3d 698, 490, n.14 [(1964)]. This Court has
703 (3d Cir. 1996) (citing Chapman v. always set high standards of proof
California,
386 U.S. 18, 24 (1967)). for the waiver of constitutional
rights, Johnson v. Zerbst, 304 U.S.
B. The Post-Miranda Statement to
458 (1938), and we reassert these
Officer Zimmerman
standards as applied to in-custody
At this point, Zimmerman read Reinert interrogation.
his Miranda rights. The issues presented
Id. at 444, 475 (emphasis added).
by Reinert are twofold. He contends (1)
that he was not physically and mentally The Court made clear in Moran v.
capable of knowingly, intelligently, and Burbine, 475 U.S. 412, (1986), the two-
voluntarily waiving his Miranda rights and pronged test for waiver:
(2) that even if he were, the post-Miranda
First, the relinquishment of the
statement was not validly obtained in light
right must have been voluntary in
of his pre-Miranda confession.
the sense that it was the product of
1. Competence and waiver a free and deliberate choice rather
than intimidation, coercion, or
The Supreme Court has frequently
deception. Second, the waiver
articulated the applicable waiver standard.
must have been made with a full
In Miranda v. Arizona, 384 U.S. 436
awareness of both the nature of the
(1966), the Court held as to waiver and
right being abandoned and the
burden:
consequences of the decision to
The defendant may waive abandon it. Only if the totality of
effectuation of these rights, the circumstances surrounding the
provided the waiver is made interrogation reveal both an
v o l u n tarily, k n o w i n g l y a n d uncoerced choice and the requisite
13
level of comprehension may a court that there was no physical or
properly conclude that the Miranda psychological coercion in the
rights have been waived. situation, nor in the questioning
te c hnique use d by Of f ic er
Id. at 421 (internal quotations marks and
Zimmerman.
citations omitted).
This finding is clearly supported in the
We have also explained that:
record. EMT Snyder testified at the
This inquiry requires us to consider suppression hearing that Reinert remained
the totality of the circumstances “conscious, alert, and oriented throughout
surrounding the interrogation, our transport” and that he was “very much
which includes examining the aware and awake, and knew what was
events that occurred and the going on. I explained every part of the
background, expe rience, and treatment that I was doing for him, and he
conduct of the defendant. Miranda understood that fully.” When asked, “And
rights will be deemed waived only this was during the entire time when
whe re the to tality of th e Officer Zimmerman was talking to Mr.
circumstances “reveal[s] both an Reinert as well?”, Snyder responded,
uncoerced choice and the requisite “That’s correct.” In sum, Snyder stated
level of comprehension.” that Reinert answered all questions posed
to him “ intelligently.” Officer
United States v. Sriyuth, 98 F.3d 739, 749
Zimmerman testified that Reinert was
(3d Cir. 1996) (quoting Moran, 475 U.S. at
“lucid and coherent.” And Officer
421) (citations omitted).
Lembach, who was also in the ambulance,
The state trial judge concluded, after testified that Reinert was alert and
the suppression hearing, that Reinert’s coherent, and that his answers to questions
mental and physical states were such that asked in the ambulance were responsive
he was “conscious, alert and oriented on and pertinent and did not go off on
three spheres.” She added that: tangents.
[T]he interview by Officer As noted above, Reinert had walked to
Zimmerman w as brief , the the ambulance. The record of treatment
interrogation routine, and the administered to him in the ambulance was
detention basically the result of unexceptional. Reinert was wearing an
circumstances created by the oxygen mask but that did not impair
defendant. Clearly there was no communication. He was receiving IV
physical threat to the defendant fluids and was connected to an
from the police inasmuch as the electrocardiograph. His vital signs were
interview took place in the monitored. But none of this impaired his
ambulance in the presence of coherence. Supporting this conclusion is
paramedics. We firmly conclude the testimony of Nurse Patricia Lombardo
14
of LVMC who, shortly after Reinert’s Drefke, 707 F.2d 978, 983 (8th Cir. 1983)
admission, observed him and administered (holding efforts to supplement record by
the Glasgow coma test, about which she affidavits or attachments to brief
discoursed at some length. The short of it improper)). Reinert counters with the
is that Reinert received the highest argument that consideration of these
(Glasgow) score for verbal and motor affidavits is necessary to demonstrate the
response, and for being alert and oriented. ineffectiveness of his trial counsel in not
His respiratory rate, vital signs, etc., were presenting expert evidence at the
all good. Independently, Nurse Lombardo suppression hearing. This “counter”
concluded that Reinert was alert. seems inadequate because the affidavits
are being presented in support of two
In opposition to this welter of
different contentions: a merits issue
testimony the state trial judge had only the
involving Miranda rights and a collateral
testimony of Reinert’s mother and
issue involving the ineffective assistance
stepfather, which it had the clear right not
of counsel. Given that these affidavits
to credit, and did not credit. In this appeal,
were not part of the record before the trial
Reinert relies largely on the affidavits of
court, Reinert most likely procedurally
two psychiatrists whose affidavits were
defaulted this line of argument on his
offered at the Pennsylvania Superior Court
Miranda claims, and should be allowed
level as appendices to his direct appeal
only to use the affidavits insofar as his
brief. The Superior Court declined to
claim for ineffectiveness is concerned.
consider these affidavits and none of them
However, since the affidavits relate both to
were before the trial court. They were also
the Miranda and ineffectiveness issues,
attached to his federal habeas petition.
and since we will need to examine the
These psychiatrists, Dr. Lynn Bornfriend
a f f i d av i t s w h e n w e r e a c h t h e
(“Dr. Bornfriend”) and Dr. Robert Sadoff
ineffectiveness claims, we will, out of an
(“Dr. Sadoff”), did not examine or witness
abundance of caution, consider the
Reinert during the time period in which he
substance of the Sadoff and Bornfriend
was in the hospital or in the ambulance,
affidavits— both of which conclude that
and relied solely upon the narratives of
Reinert was not competent physically or
Reinert’s family and friends and excerpts
mentally to waive Miranda rights or to
from the (subsequent) medical records of
make statements either in the ambulance or
LVMC.
post-operatively at the hospital—in terms
The Commonwealth submits that we of the Miranda claims as well.
cannot consider these affidavits which
Dr. Bornfriend relies on a number of
were not a matter of record and which are
factors: (1) several nursing entries
presented to the Court merely as
describing Reinert as confused after his
attachments to a pleading, citing United
admission to LVMC; (2) lab evidence of
States v. Madkins, 994 F.2d 540, 542-43
dehydration, blood loss, liver damage and
(8th Cir. 1993) (citing United States v.
15
an extruding wound (the occasion for the given Miranda warnings, but admitted the
subsequent surgery); and (3) an increased written confession. Elstad was convicted,
white blood cell count. Dr. Bornfriend but the Oregon Court of Appeals reversed,
opines that Reinert was in emotional holding that the confession should also
shock, largely as the result of having been have been excluded because of the brief
in the house with a corpse for two days. p e r i o d s e p a r a t i n g h i s i n i t i a l,
She also makes reference to his recent unconstitutionally obtained statement and
suicide attempt. Dr. Sadoff relies on: (1) his subsequent confession. In reversing
Reinert’s mother’s description of his the Oregon Court of Appeals, the United
confusion; (2) the emotional shock of the States Supreme Court explained that the
altercation with Sean Brady; and (3) failure of police to administer Miranda
Reinert’s low blood pressure and fast heart warnings does not mean that the
rate. We find this counter underwhelming, statements received have actually been
surely not enough to render the state trial coerced, but only that courts will presume
judge’s supported findings unreasonable or the privilege against compulsory
to undermine her conclusions of law under s e l f -i n c r im i n a t io n h a s n o t b e e n
the AEDPA standard as to the validity of intelligently exercised. See Elstad, 470
the waiver and the post-Miranda statement U.S. at 304-11.
in the ambulance.
The Court held that it was “an
2. Validity of post-Miranda statement unwarranted extension of Miranda to hold
that a simple failure to administer the
Reinert argues that, even had he been
warnings, unaccompanied by any actual
competent to waive his Miranda rights in
coercion or other circumstances calculated
the amb ulanc e, the p ost-Miranda
to undermine the suspect’s ability to
statement would nevertheless be invalid
exercise his free will, so taints the
because it followed too quickly on the
investigatory process that a subsequent
heels of a non-Mirandized confession. To
voluntary and informed w aiver is
support his contention, Reinert attempts,
ineffective for some indeterminate period.”
unsuccessfully, to distinguish his case
Id. at 309. The Court further held that
from Oregon v. Elstad, 470 U.S. 298
although Miranda “requires that the
(1985). In Elstad, a man suspected of
unwarned admission must be suppressed,
burglary made an incriminating statement
the admissibility of any subsequent
in his own home without having been
sta t e m e n t s h o u ld tur n in t h e se
Mirandized. He was taken to the police
circumstances solely on whether it is
station, and after he was advised of and
knowingly and voluntarily made.” Id.
waived his Miranda rights, the suspect
Absent deliberate coercion or improper
produced a written confession. In his
tactics in obtaining an unwarned
subsequent prosecution for burglary, the
statement, a careful and thorough
state trial court excluded from evidence his
administration of Miranda warnings cures
first statement because he had not been
16
the condition that rendered the unwarned and second responses to the police
statement inadmissible. See id. at 311-12. was “speculative and attenuated,”
id. at 313. Although the Elstad
Reinert argues that no cure could be
Cou rt expressed no explicit
made in his case because the police created
conclusion about either officer’s
coercive circumstances and that other
state of mind, it is fair to read
independent circumstances, such as the
Elstad as treating the living room
injury and resulting pain, tainted the
conversation as a good-faith
investigatory process beyond repair. We
Miranda mistake, not only open to
disagree. The Supreme Court’s most
correction by careful warnings
recent pronouncement on this issue
before systematic questioning in
supports our conclusion. In Missouri v.
that particular case, but posing no
Seibert, 124 S. Ct. 2601 (2004), a suspect
threat to warn-first p ractice
was questioned for 30 to 40 minutes and
generally. See Elstad, [470 U.S.] at
confessed to her role in the crime of
309 (characterizing the officers’
second-degree murder. She was given a
omission of Miranda warnings as
20-minute break and was only then
“a simple failure to administer the
Mirandized. After receiving her Miranda
warnings, unaccompanied by any
warnings, she signed a waiver and the
a c t u a l c o e r c io n o r o t h e r
questioning resumed. During the post-
c ir c umsta nc es calc ula te d to
Miranda questioning, she was confronted
undermine the suspect’s ability to
with her prewarning statements, and was
exercise his free will”).
made to repeat the information she had
given before she was Mirandized. In Id. at 2612.
holding unconstitutional the interrogation
We are confident that Reinert’s case
technique of intentionally withholding
more closely resembles Elstad’s than
Miranda rights to obtain a confession and
Siebert’s. Zimmerman’s initial failure to
of subsequently reading the Miranda rights
read Reinert his Miranda rights, though
and continuing on with the interrogation,
unfortunate and unexplained, seems much
the Supreme Court distinguished Seibert
more likely to have been a simple failure
from Elstad in the following way:
to administer the warnings rather than an
Elstad rejected the “cat out of the intentional withholding that was part of a
bag” theory that any short, earlier larger, nefarious plot. While it would have
admission, obtained in arguably been preferable for Zimmerman to read
innocent neglect of Miranda, Reinert his rights immediately before
determined the character of the eliciting the initial response, we conclude
later, warned confession, Elstad, that the cure mandated by Elstad was met
470 U.S. at 311-14; on the facts of in this case and that, because Reinert’s
that case, the Court thought any waiver was knowing and voluntary, the
causal connection between the first post-Miranda statement was properly
17
entered into evidence. We have scrutinized the entire LVMC
record. That record is consistent with the
C. The Statement at the Hospital
facts chronicled above, most importantly
Probably the most incriminating that at times relevant Reinert was alert and
statement made by Reinert was that made oriented. Initially, the surgeon, Dr. Barry
to Detectives Stauffer and Granitz after Slavin, reported that Reinert woke up
surgery at LVMC. In that statement promptly and was awake and alert after
Reinert admitted that he had obtained a recovery from anesthesia. Morphine for
knife and then went to see Brady, who was pain was not administered until 10:00
in bed, and stabbed him. We have already p.m., well after the statement at issue had
recounted the essential history of the been made. Reinert was also given
events after Reinert’s admission to the Robinal, a sedative and muscle relaxant, at
hospital, see supra Part I. We have 3:30 p.m. and Cefoxitan, an antibiotic, at
amplified that de scription through 6:30 p.m. The most important witness,
recitation of the state trial judge’s findings, however, was Dr. Hashemi, the chief
see supra Part II; we will not rescribe that surgical resident, who had come to LVMC
material here. However, our review of the afer three years of surgical residence at
record confirms that all the facts stated by Presbyterian and the University of
Judge McGinley are supported by the Pennsylvania Medical Center. As noted
record. above, Dr. Hashemi testified that he had
performed a post-operative check at 7:30
As our frame of reference, we reiterate
p.m. on the defendant, and that he had seen
that surgery (on March 10, 1991) lasted
that Reinert was awake, coherent, and had
from 1:15 p.m. to 3:45 p.m., and the
stable vital signs. His chart indicated no
interrogation took place at about 8:00 p.m.
abnormality with regard to Reinert’s
It was discovered during surgery that one
ability to answer questions appropriately.
of the knife wounds in Reinert’s abdomen
This testimony accords with that of the
had also cut his liver. The surgery
detectives who questioned Reinert after his
consisted of an exploratory laparotomy to
surgery and said that they found him
examine stab wounds to the abdomen. The
conscious, oriented, alert, and responsive.
results were essentially negative, except
for a non-bleeding laceration of the left Arrayed against this solid phalanx of
lobe of the liver and a large retroperitoneal evidence is the testimony of Reinert’s
hematoma. There was no evidence of mother, stepfather, a friend Cindy
injury to any intraabdominal organ. Mellinger, and Reinert’s mother’s pastor,
Because the retroperitoneal hematoma was Ronald Keller, who saw Reinert after the
stable, nothing was done, and the abdomen police left. They all described him as
was closed after copious irrigation. extremely quiet and soft spoken, kind of
Reinert’s wrist lacerations were then “mumbly,” heavily sedated. Reinert also
repaired, and he was taken to the Shock contends that he was affected by the pre-
Trauma Unit for observation. surgical med icine, es pecia lly the
18
anesthesia, and by the Robinal given at IMPRESSIONS: The patient is
3:30 p.m. Additionally, Reinert relies a 27 year old white male admitted
heavily on appeal on a psychiatric consult to the Lehigh Valley Hospital
the day after surgery. Center on 03/10/91 followed self
inflicted stab wounds with slashed
Dr. Joseph Antonowicz, a psychiatrist,
wrists. He is currently under arrest
reported that:
on suspicion of having murdered
The patient tells me that he his roommate. The patient has
remembers essentially nothing of essentially no recollection of events
the events that led to his leading to and including these
hospitalization here. He tells me alleged occurrences. At the present
that the police have informed him time he is confused, overwhelmed,
that they suspect him of having frightened and seemed somewhat
murdered Shawn. He is quite disorganized in his thought
surprised by this. The patient is processes.
very tearful at the loss of Shawn
Working diagnoses are:
and seems to genuinely miss him.
He states that he currently does 1. Psychogenic amnesia versus
have suicidal ideation, although he malingering.
does not have a plan at this time.
2. Possible reactive psychosis.
The patient is an alert, I am uncertain about the presence
cooperative young man who of psychosis in this case, although
appears quite sad. He also appears he doe s se em inordina te ly
very befuddled and shows some bewildered and disorganized.
disorganization in his thought
These pieces of evidence are used by
process. He tends to be somewhat
Drs. Bornfriend and Sadoff in their
rambling and at times is mildly
affidavits. Dr. Bornfriend writes:
loosened in his associations. He
seems quite bewildered by what’s Reinert was in the Operating Room
going on as well as frightened. for laparotomy and tendon repair
There are no hallucinations. There until around 4:00 in the afternoon.
do not appear to be delusions During surgery, he was given many
present at this time. However, the anesthetics, including Fentanyl, a
patient is somewhat guarded in his synthetic narcotic, and Robinal, a
history. Affect is depressed. sedative and muscle relaxant.
Sensorium: He is oriented times Without the above medications, any
three. Memory: 2 of 3 objects at 5 patient would be in severe pain
minutes. Similes: Good. Proverbs: after such extensive surgery. It
Quite concrete. Insight: Limited. was, therefore, clear that the
Judgment: Good on formal testing. narcotic and sedative and muscle
19
r e l a x an t e f f e c t s o f th e s e following surgery.
medications persisted and remained
Thus, for all the reasons noted
during the course of Mr. Reinert’s
above, it is my opinion, within
being interviewed by the police and
reasonable medical and psychiatric
that when these medications wore
certainty, that at the time of the
off, Mr. Reinert was in severe pain
taking of the statement of Scot
and required 4 mgs. of morphine.
Reinert, he was not at his clearest
In addition, the fact that a physician
thinking and was under the
told police officers that Mr.
influence of the shock of the loss of
Reinert’s health would not be
his lover, the shock of his own
threatened by their questioning him
wounds and recently emerging
does not imply that he was
from general anesthesia with
cognitively and mentally clear
abdominal surgery and that his will
enough for them to do so.
and strength and clarity of mind
Dr. Sadoff recapitulates the traumatic were all impaired. It is more likely
events preceding the stabbing, the than not that at the time he was
impressions of Dr. Antonowicz, the reports interrogated by the police and given
of the family members who saw Reinert his Miranda rights, his emotional
after the surgery, and the LVMC records. state was so impaired that he would
He concludes: not have been able to resist
effectively the demands of the
One is usually in a fairly
police at the time or the requests of
confused state of mind following
the police. It would seem that his
surgery with general anesthesia,
statement would not be totally
and is not thinking as clearly
voluntary, as he may choose, when
usually, as one does after several
in a clearer state of mind, to resist
days. Scot had just been through a
giving such a statement, especially
serious altercation with his lover,
under the advice of his attorney, if
had lost his lover by death and had
he had been allowed to see his
been in a state of shock himself
attorney prior to the interrogation.
following loss of large quantities of
blood due to self-inflicted and other The note of Dr. Antonowicz, the
wounds to his wrists and his psychiatrist who examined him in
abdomen. He appeared confused to consultation one day after he was
his mother on the telephone and admitted and then three days later,
also when she visited him at his indicated a clearing of his
residence shortly thereafter. He s e n s o r i u m o n t h e s e co n d
also appeared less than clear to his examination. This implies that his
mother, stepfather, pastor and first examination showed Scot to be
female friend while in the hospital less than clear, and that was one
20
day after his admission or one day with those of Judge McGinley, see supra
after the interrogation. . . . Part II, which are entitled to deference.
See Sumner v. Mata, 449 U.S. 539 (1981).4
Thus, it is for all these reasons
that it is my opinion, within
reasonable medical certainty, that at 4
Reinert urges us to follow the
the time of the taking of the example of the Supreme Courts of
statement by the police, Scot Minnesota and Alaska and rule that, in
Reinert was in such a weakened the absence of an electronic record of the
state of emotional condition custodial interrogation in the hospital (by
following the shock to his system either audiotape or videotape), we should
from the death of his lover, the suppress the confession as a violation of
wounds that he had to his own the Fifth Amendment, Sixth Amendment,
body, the medication that he was protections of due process, protection
under, the loss of blood, the against self-incrimination, and provisions
surgical procedure under general for effective assistance of counsel and
anesthesia, that his mental state was confrontation. See State v. Scales, 518
not clear enough for him to be N.W.2d 587 (Minn. 1994) (holding that
competent to waive his Miranda custodial interrogations must be recorded
warnings or to give a truly where feasible); Stephan v. State, 711
voluntary statement. P.2d 1156 (Alaska 1985) (holding that
We find these a rg u m e n t s non-recorded statements made during the
underwhelming, and conclude that they do course of a custodial interrogation should
not even come close to rendering the state be suppressed because they were
trial judge’s findings of fact unreasonable obtained in violation of the Due Process
under the totality of the record, or in any Clause of the Alaska Constitution).
way undermine her conclusions of law While the advocated policy may be a
under the AEDPA standard. The desirable one, Reinert can point to no
Bornfriend and Sadoff affidavits are Pennsylvania law supporting it; indeed
extremely generalized and conclusory and, there is none. Even if there were such a
at all events, do not counter the rule announced in Pennsylvania, we, as a
considerable evidence of Reinert’s federal court sitting in habeas
competence to waive his Miranda rights jurisdiction, would not have the authority
and to make a statement which was to review a violation of the state
credited by the suppression judge, to constitution. It therefore goes without
whose findings heavy deference is owed saying that, given that there is no right to
under AEDPA. Indeed, they also rely on recorded custodial interrogations under
statements that the judge discredited. Pennsylvania law, we are certainly not at
Additionally, we note that the Superior liberty to create one. Insofar as Reinert
Court also made findings of fact consonant invokes the Fifth and Sixth Amendments
of the Federal Constitution, he invokes a
21
and medical staff: “We conclude that trial
counsel was not ineffective for failing to
IV. The Ineffective Assistance of
call medical experts at the suppression
Counsel Claims
hearing.” Indeed, the state court followed
A. Failure of State Trial Counsel to Call the relevant Pennsylvania authority for the
a Medical Expert to Testify at the proposition that trial counsel need not
Suppression Hearing as to Reinert’s introduce expert testimony on his client’s
Alleged Mental and Physical Inability to behalf if he is able effectively to cross-
Voluntarily and Knowingly Waive His examine prosecution witnesses and elicit
Miranda Rights helpful testimony. See Commonwealth v.
Williams, 640 A.2d 1251, 1265 (Pa. 1994).
Reinert claims that his trial counsel
Trial counsel was surely able to do so here.
was ineffective for failing to call an expert
medical or psychiatric witness to testify The Superior Court’s rejection, under
about his physical and mental condition at Williams, of Reinert’s claim that his trial
the time he waived his Miranda rights. In counsel was ineffective for failing to call
order successfully to claim ineffective an expert witness with respect to his
assistance of counsel, Reinert must mental and physical condition was not an
establish both that his attorney’s unreasonable application of the standards
performance was objectively unreasonable set forth in Strickland in light of the
and that, but for the deficient performance, evidence from police officers and medical
there would have been a reasonable personnel that Reinert’s waiver of his
probability of a different outcome. See Miranda rights was knowing and
Strickland v. Washington, 466 U.S. 668 voluntary. Reinert’s claim must therefore
(1984). Reinert can make neither showing fail. Furthermore, we reject the notion,
here. After reviewing the record, the advanced at oral argument, that Reinert
Superior Court found that trial counsel should be entitled to an ineffective
thoroug hly cross-examined all the assistance of counsel hearing at this
Commonwealth’s witnesses regarding juncture. Given the well developed record
Reinert’s mental and physical state at the in this case and our analysis of it above,
time he was given his Miranda warnings we do not see what more useful
and when he made statements to the police information could be elicited at this time.
B. Failure to Inform Reinert of His
Right to Testify at the Suppression
purported federal right to have a Hearing
custodial interrogation recorded. He
does not, however, cite any authority for Reinert contends that his state trial
this proposition; again there is none. We counsel was ineffective for not informing
will, at this juncture, decline to infer a him of his right to testify at the
federal right to have custodial suppression hearing. At the suppression
interrogations recorded. hearing Reinert’s counsel called his
22
mother, stepfather, a female friend, and his
mother’s pastor to testify about his
physical condition post-surgery and prior might have been risky to his defense.
to his statement to the officers. Reinert’s Reinert testified extensively at trial about
mother and stepfather also testified to the entire incident leading up to and
Reinert’s condition prior to his transport to following the death of Sean Brady. By
the hospital (and prior to his initial taking the stand at the suppression
statement). Additionally the medical hearing, Reinert may have been
records of LVMC were before the providing the Commonwealth with the
suppression court. The suppression court means to impeach his testimony. In
thus had before it a considerable amount of United States v. Salvucci, 448 U.S. 83,
evidence supporting Reinert’s position that 93-94 (1980), the Supreme Court
he was not competent to give a statement reserved the question whether Simmons
or to waive Miranda rights. We do not see v. United States,
390 U.S. 377 (1968),
that Reinert’s testimony would have added precludes the use of a defendant’s
anything to the mix in his favor, and, as testimony at a suppression hearing to
the Pennsylvania Superior Court observed, impeach his testimony at trial. The Court
Reinert failed to state with any specificity noted, however, that a number of courts
what his testimony would have been considering the question had held that
and/or how his testimony would have such testimony is admissible as evidence
altered the outcome of the hearing. The of impeachment. Id. at 94 & n.8 (citing
Superior Court concluded that Reinert had Gray v. State,
403 A.2d 853, 858 (Md.
failed to establish that his claim had Ct. Spec. App. 1979) (noting that nothing
arguable merit, that his counsel’s actions in Simmons precludes use of defendant’s
were unreasonable, or that he suffered testimony at suppression hearing for
prejudice. In our view, the District Court purpose of impeachment at trial); People
correctly concluded that the state court’s v. Sturgis,
317 N.E.2d 545, 547-48 (Ill.
resolution of this claim was not objectively 1974) (same); People v. Douglas, 136
unreasonable. The Superior Court also Cal. Rptr. 358, 363 (Cal. Ct. App. 1977)
found that Reinert had failed to show that (holding that defendant’s testimony at
he was prejudiced by the failure of counsel suppression hearing was admissible for
to inform him of his right to testify at the impeachment purposes because
suppression hearing, i.e., that there was a defendant took the stand in his trial and
reasonable probability that, but for testified in a manner inconsistent with his
counsel’s alleged error, the result of the pretrial testimony)). Were we to adopt a
proceeding would have been different. 5 similar interpretation of Simmons and
conclude that suppression testimony was
fair game for impeachment purposes, the
5
While we need not decide whether action of putting Reinert on the stand
counsel’s performance was deficient, it is during the suppression hearing could
worth noting that Reinert’s testimony have itself potentially become subject to
23
Finally, we consider the affidavit of clearly established federal law as
submitted by Reinert’s trial attorney Diane determined by the United States Supreme
Dickson. In our view, the Dickson Court.
affidavit, which constitutes a conclusory
We will therefore affirm the order of
concession of ineffectiveness by trial
the District Court denying the petition.
counsel, does not mitigate the propriety of
the actions taken during the time of trial,
and does not affect the outcome.
V. Conclusion
In light of our extensive review of the
record before us, we conclude that the
state trial court’s decision to deny
Reinert’s motion to su ppress the
statements at issue was not an
unreasonable determination of the facts in
light of the evidence presented in the state
court proceedings, and that it was neither
contrary to nor an unreasonable
application of clearly established federal
law as determined by the United States
Supreme Court. To the extent that the
state trial court’s finding on the one pre-
Miranda statement made to Officer
Zimmerman was in fact unreasonable in
light of the evidence presented before it,
the statement should have been
suppressed. However, the admission of
duplicative statements was proper, and the
error was therefore harmless.
As for Reinert’s claims of ineffective
assistance of counsel, he has failed to
demonstrate that he was prejudiced by his
counsel’s performance, and the state
court’s conclusions on the issue were not
contrary to or an unreasonable application
an allegation of ineffectiveness.
24
