On Appeal From the United States District Court For the Western District of Pennsylvania (Pittsburgh); D.C. Civil Action No. 88-1211.
Stapleton, and Mansmann, Circuit Judges and Edwin M. Kosik, District Judge.*fn*
STAPLETON, Circuit Judge.
Petitioner Bruce Nelson was convicted in Pennsylvania state court of rape and murder. In his habeas corpus petition, Nelson contends that the trial court impermissibly admitted into evidence his inculpatory response to a police-engineered confrontation with his alleged partner in crime, Terrence Moore. The district court dismissed Nelson's petition, holding that the behavior of the police did not violate the prophylactic rules set out in the Supreme Court's Fifth and Sixth Amendment jurisprudence and that Nelson's remark was voluntary and thus admissible. We cannot discern from the state and district court record certain facts we deem critical to resolving Nelson's constitutional claims. Accordingly, we will reverse the district court's decision and remand for additional fact-finding consistent with this opinion.
In response to questioning by Pennsylvania homicide detectives, Terrence Moore confessed to participating in the rape and murder of Corrine Donovan. In his confession, Moore alleged that Bruce Nelson, the petitioner, initiated both crimes. The detectives then decided to confront Nelson with Moore's confession. That confrontation is the focus of this case. The most comprehensive findings of fact with respect to that confrontation are found in the state trial court's post-trial opinion:
On November 27, 1981, Moore was interviewed by various police officers concerning the rape, robbery, and murder of the victim. After a period of time, Moore admitted his involvement in the crimes and implicated the defendant [Nelson]. The defendant, who was in the Allegheny County jail on other charges, was transported to the Public Safety Building for questioning on these charges. Prior to questioning, the defendant was given his Miranda warning and executed a written waiver of his right to counsel. Both the defendant and the codefendant were questioned by the police officers separately. However, the defendant expressed a desire to remain silent. After Moore confessed and implicated the defendant in the crimes, the police officers asked Moore to go into the room alone where the defendant was located and to tell him (the defendant) what he had done. During the confrontation between the defendant and Moore the following exchange occurred:
Def: "How much did you tell them?"
The defendant then asked that Moore be removed from the room. Thereafter, Moore informed the police about what the defendant had said.
Appendix for Appellant ("App.") at 619. Shortly after this confrontation, Nelson was arrested for the rape and murder of Corrine Donovan.
At trial, virtually all of the evidence offered against Nelson was supplied by Moore, who gave the following testimony. Nelson and Moore stole a van and drove to a parking garage in the hopes of committing a theft. When Corrine Donovan walked into the garage, Nelson accosted her and forced her back to the van. Nelson then raped Donovan and encouraged Moore to do the same. Moore refused at first but then followed suit. After Moore finished, Nelson climbed on top of Donovan again. When Moore next looked over, Nelson had a knife in his hand and was strangling Donovan with a piece of cloth. After Nelson stopped choking Donovan, the two left her body on the floor of the garage and fled. Moore abandoned the stolen van the following morning.
According to expert testimony at trial, Moore's fingerprints were found on Donovan's purse and on her parking garage ticket. Forensic examination of the victim revealed saliva on her breast and bra that was consistent with Moore's blood type. Saliva on a cigarette butt found at the crime scene was also consistent with Moore's blood type, and hairs found in several different places on the victim and her garments matched Moore's type of hair. Nelson's fingerprints were not found at the scene and all of the saliva and hair samples found on the victim were inconsistent with Nelson's characteristics.
At the conclusion of the bench trial, the judge found Nelson guilty of the charges against him. Nelson received a life sentence for the murder. For the rape, Nelson was sentenced to ten to twenty years in prison, to run concurrently with the life sentence.
In its post-trial motions opinion, the trial court expressly rejected Nelson's claim that the Constitution compelled the suppression of his response to the confrontation with Moore. Though the court did not articulate the precise nature of Nelson's challenge, it highlighted that Nelson had not been charged or arrested at the time of the questioning and that his inculpatory statement "was not in response to any question posed by the police or Moore." App. at 620. In light of those facts, the state court held that the admission of Nelson's statement violated neither the United States nor the Pennsylvania Constitution.
The opinion of Pennsylvania's Superior Court sounded a similar theme:
No constitutional rights of the appellant were violated when the appellant volunteered the question to Moore: "How much did you tell them." A statement which is spontaneously volunteered is admissible notwithstanding a prior assertion of constitutional rights. The Commonwealth has conceded that the police sought to confront the appellant with Moore's confession. However, there is no prohibition against the police confronting a suspect with incriminating evidence and doing so does not necessarily render his statement involuntary.
App. at 679-680 (citations omitted). The Pennsylvania Supreme Court declined to review the case.
In his habeas corpus petition, Nelson reiterates his arguments that the confrontation with Moore violated the prophylactic rules set out in the Supreme Court's Fifth and Sixth Amendment jurisprudence. The magistrate recommended that Nelson's claims be rejected on two grounds. First, he reasoned that Nelson could not rely on the Sixth Amendment "jail plant" line of cases because Moore was not a paid, undisclosed informant. Second, the magistrate observed that Nelson had asked the inculpatory question "without being prompted" and held, under Kuhlmann v. Wilson, 477 U.S. 436, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1986), that this spontaneously-made statement was properly admissible notwithstanding a prior assertion of the right to remain silent. App. at 793-94.
The district court declined to adopt the magistrate's report and recommendations, but nevertheless denied Nelson's habeas corpus petition and his certificate of probable cause for appeal. It wrote no opinion explaining this result. We granted Nelson's probable cause petition and now review Nelson's claims de novo. We have jurisdiction under 28 U.S.C. § 1291.
The parties tender four issues on appeal: (1) whether the state court's finding of fact that Nelson invoked his right to cut off questioning is "fairly supported by the record," 28 U.S.C. § 2254(d)(8); (2) if so, whether the confrontation between Nelson and Moore violated the Fifth Amendment's restrictions on custodial interrogation of suspects who have invoked their right to silence; (3) whether the police nevertheless "scrupulously honored" Nelson's right to silence under Michigan v. Mosley, 423 U.S. ...