Jade E. Anderson v. Tina Hornbeck

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JADE E. ANDERSON,
Petitioner - Appellant,
v.
TINA HORNBECK,
Respondent - Appellee.
No. 13-16897
D.C. No. 3:10-cv-00155-SI
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Argued and Submitted November 19, 2014
San Francisco, California
Before: REINHARDT, THOMAS, and CHRISTEN, Circuit Judges.
Jade Anderson took a wallet and cell phone from a man her companion had
choked into unconsciousness and – unbeknownst to her – fatally injured. Towards
the end of a twelve-hour interrogation, she admitted that she took the items while
FILED
DEC 02 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1

-- 1 of 5 --

the victim was still alive. On this basis, she was convicted of felony murder and
sentenced to twenty-five years to life in prison. Without her own inculpatory
statements, the evidence would not even have supported a charge of robbery, but
only one of theft. In her habeas petition, Anderson argues that her inculpatory
statements should have been suppressed at trial because they were made after the
interrogating officers disregarded her invocation of the right to counsel.
This case turns on the facts, so they are recounted briefly. After some hours
of questioning, the officers put Anderson under arrest and handcuffed her. Without
informing her of her rights, the officers then left the room, to search her purse
before she was escorted to the restroom. They conducted this search at a table a
short distance from the door to the interrogation room, which they left partially
ajar. The officers spoke to each other, and, in response to Anderson’s request for a
tampon from her purse, they conversed back and forth with her. During this period,
Anderson stated, “I need a lawyer.” The California Court of Appeal alternately
characterized this statement as made in an “even voice” and “simply mus[ing].”
There was no response from the officers, who later testified that they did not hear
her. Where exactly the officers were standing when Anderson made her statement
is not entirely clear.
2

-- 2 of 5 --

Another officer, of whose presence Anderson was unaware, was sitting in an
adjacent area, recording the interrogation. He heard Anderson say, “I need a
lawyer,” and he promptly related this statement to one of the interrogating officers,
Clark, who had no response. It was only after subsequent questioning that
Anderson stated that the victim was alive when she took his possessions.
Additionally,1 the next day, Anderson was again interrogated by a team that
included Officer Clark. She again said, “I need a lawyer,” this time directly to
Clark, who said, “You’re going to get a lawyer, Jade. That’s going to be appointed
for you. That’s not an issue.” Clark did not, however, stop questioning her; later,
he testified that this invocation “went in one ear and out the other.” (Statements
made after this second invocation were suppressed at trial.)
The record leaves us with the distinct impression that the officers failed to
“scrupulously honor[]” Anderson’s right to legal representation during her
1 Anderson also argues that she invoked her right to silence prior to
confessing. However, this claim was not certified for appeal, and it turns primarily
on state evidence law regarding which recording or transcription to credit when a
statement is intelligible in one and not in others. Thus, we do not address it.
3

-- 3 of 5 --

interrogation, Miranda v. Arizona, 384 U.S. 436, 479 (1966), and that the
conclusions of the state court to the contrary are erroneous. 2
We are unable, however, to conclude, as required by AEDPA, that the state
court’s decision “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).
This is for two reasons. First, the state court’s core legal conclusion – that an
invocation made in a manner unlikely to be heard by an officer is ambiguous – was
not an unreasonable application of the clear invocation rule of Davis v. United
2 Peripheral elements of the state court’s analysis in Anderson’s case were
indeed contrary to clearly established Supreme Court law. First, the California
Court of Appeal identified Anderson’s failure to reiterate her request for counsel as
confirmatory of “[t]he lack of conviction implicit in her manner.” Smith v. Illinois,
469 U.S. 91, 99-100 (1984), however, held that “postrequest responses to further
interrogation may not be used to cast retrospective doubt on the clarity of the initial
request itself.” Second, to the extent that the California Court of Appeal held that
an invocation must be heard firsthand by the officer to whom it is addressed, this
holding was contrary to Arizona v. Roberson, 486 U.S. 675, 687-88 (1988), which
clearly established that invocations are not officer-specific. However, these legal
conclusions were doctrinally incorrect surplusage, and not the basis on which the
state court denied Anderson relief.
4

-- 4 of 5 --

States, 512 U.S. 452, 458-59 (1994). 3 Second, the state court’s core factual
determination – that Anderson’s statement was made in a manner unlikely to be
heard by an officer – was not an “unreasonable determination of the facts in light
of the evidence.” 28 U.S.C. § 2254(d)(2). The decision, although based on an
unfortunate willingness to credit the testimony of an officer who demonstrated a
cavalier attitude towards the constitutional rights of suspects, is nevertheless
entitled to deference under AEDPA.
Hence, with considerable reluctance, we affirm the district court’s denial of
Anderson’s habeas petition.
AFFIRMED.
3 We do not hold here that the Davis rule actually applies to invocations
made before Miranda warnings are given during custodial interrogation. We
merely conclude, in light of Sessoms v. Grounds, 768 F.3d 882, 887 (9th Cir. 2014)
(en banc) (assuming without deciding that Davis applies), that it was not contrary
to or an unreasonable application of clearly established law for the state court to
apply it in that context.
5

-- 5 of 5 --