Henry Louis Wallace v. GERALD J. BRANKER, Warden, Central Prison, Raleigh, North Carolina

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-10
HENRY LOUIS WALLACE,
Petitioner - Appellant,
v.
GERALD J. BRANKER, Warden, Central Prison, Raleigh, North
Carolina,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J.
Conrad, Jr., Chief District Judge. (3:05-cv-00464-RJC)
Argued: October 29, 2009 Decided: December 2, 2009
Before WILKINSON, MICHAEL, and AGEE, Circuit Judges.
Affirmed by unpublished opinion. Judge Michael wrote the
opinion, in which Judge Wilkinson and Judge Agee joined.
ARGUED: Ann Bach Petersen, GLOVER & PETERSEN, PA, Chapel Hill,
North Carolina, for Appellant. Steven Mark Arbogast, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee. ON BRIEF: James R. Glover, GLOVER & PETERSEN, PA,
Chapel Hill, North Carolina, for Appellant. Roy Cooper,
Attorney General, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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MICHAEL, Circuit Judge:
In January 1997 Henry Louis Wallace was convicted in
North Carolina of nine counts of first-degree murder, eight
counts of first-degree rape, one count of second-degree rape,
two counts of first-degree sexual offense, two counts of second-
degree sexual offense, one count of assault on a child under the
age of twelve, and five counts of robbery with a dangerous
weapon. He was sentenced to death on each of the murder counts.
After exhausting his state remedies, Wallace petitioned a
federal district court in North Carolina for a writ of habeas
corpus, which the court denied. We granted a certificate of
appealability on two of Wallace’s claims: (1) that pretrial
publicity and the state court’s denial of his motion for a
change of venue deprived him of an impartial jury and (2) that
delayed administration of Miranda warnings rendered his
confessions involuntary and therefore inadmissible. After
considering these claims, we affirm the district court’s denial
of the writ.
I.
A.
The North Carolina Supreme Court described the facts
of the nine murders for which Wallace was convicted as follows:
The State presented evidence tending to show that
defendant [Henry Louis Wallace] murdered nine women in
the Charlotte area over a two-year period. Defendant
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was identified as a suspect in three of the later
murders by a palmprint found on the car of one of the
victims. As will be detailed below, defendant was
arrested on an outstanding larceny charge and
interrogated by police. He confessed to the murders
of Shawna Hawk, Audrey Spain, Valencia Mack, Betty
Baucom, Brandi Henderson, and Deborah Slaughter. The
State presented the following evidence:
Caroline Love Murder
On 15 June 1992, Caroline Love was living in an
apartment with Sadie McKnight, defendant’s girlfriend.
That night, after completing her shift at the
Bojangles’ restaurant on Central Avenue in Charlotte,
Love asked the night manager if she could buy a roll
of quarters to do her laundry. The night manager
exchanged a roll of quarters for a ten-dollar bill,
and Love left the premises. As Love walked toward her
apartment, her cousin, Robert Ross, saw her walking,
offered her a ride, and drove her home. Ross watched
as Love entered her apartment.
A few days later, Love’s employer contacted
Love’s sister, Kathy Love (Kathy), and informed her
that Love had not come to work in two days. Kathy went
to Love’s apartment and left a note. However, the
next day, Kathy was again informed Love had not come
to work. Kathy then contacted defendant, whom she
knew, to find Love’s roommate, McKnight. Kathy,
McKnight, and defendant went to the police station to
file a missing person’s report. Later, Kathy went
into Love’s apartment. She noticed that some of the
furniture had been moved and that some of the sheets
from Love’s bed were missing, but there was no
evidence of Love’s whereabouts. During the
investigation of the missing person’s report,
Investigator Tony Rice of the Charlotte-Mecklenburg
Police Department determined that the roll of quarters
Love bought prior to leaving work on 15 June 1992 was
missing from her apartment. Love was not found as a
result of the missing person’s report.
On 13 March 1994, defendant confessed to the
murder of Caroline Love. At trial, the State
introduced redacted versions of defendant’s tape-
recorded confession. In the confession, defendant
stated that he made a copy of McKnight’s house key and
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went to the apartment when neither McKnight nor Love
was there. Defendant heard Love enter the apartment.
He indicated to Love that he was in the bathroom and
would leave as soon as he came out. Upon coming out
of the bathroom, however, defendant went into the
living room where Love was watching television and
kissed her on the cheek. Love promised not to tell
McKnight about the kiss if defendant promised not to
do it again. Defendant then put his arms around Love
in a manner similar to a wrestling choke hold.
Defendant confessed that there was a scuffle, that
Love scratched him on his arms and face, and that he
kept holding Love until she passed out. Defendant
then moved Love to her bedroom, removed her clothes,
tied her hands behind her back with the cord of a
curling iron, and placed tape over her mouth.
Defendant had oral sex and sexual intercourse with
Love, during which she was semiconscious. While
engaged in intercourse with Love, defendant continued
to apply the choke hold until Love’s body became limp.
Defendant stated he could tell she was still alive
because he could feel her heart and pulse.
Afterwards, defendant strangled Love to death.
Defendant further confessed that he left the
apartment to move his car closer to the stairwell and
then returned to the apartment with a large orange
trash bag. Defendant wrapped Love’s body in a bed
sheet and put the body inside the trash bag. . . .
Defendant carried the bags down the stairs, placed
them in the backseat of his car, and then drove
around Charlotte trying to find a place to dump
Love’s body. Defendant . . . dumped the bag into the
woods. The following day, defendant drove back to the
location because he feared the orange bag would be
noticeable from the road. Defendant stated that he
removed the body from the orange trash bag and then
moved the body into a shallow ravine. Defendant also
admitted taking a roll of quarters from Love’s
dresser.
Later on 13 March 1994, after defendant’s
confession, defendant directed Rice and other
investigators to the site where he had dumped Love’s
body. Subsequently, Dr. Michael Sullivan, a forensic
pathologist and medical examiner . . . went to . . .
recover Love’s skeletal remains. Dr. Sullivan
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performed an autopsy on those remains. . . . Dr.
Sullivan determined that the cause of death was
homicide by means of strangulation.
Shawna Hawk Murder
In February 1993, Shawna Hawk was living with her
mother, Sylvia Denise Sumpter, in Charlotte. Hawk was
a paralegal student at Central Piedmont Community
College and worked at a Taco Bell restaurant . . .
where defendant was her manager. On 19 February 1993,
Sumpter arrived home . . . . Hawk’s car was not
there, but Sumpter saw Hawk’s coat and purse in a
closet. This seemed unusual because it was very cold
outside, Hawk never went anywhere without her purse,
and Sumpter had seen Hawk earlier in the day wearing
the coat. Sumpter called Hawk’s boyfriend, Darryl
Kirkpatrick, to ask if he had seen Hawk, but
Kirkpatrick said he had not.
Sumpter then learned that Hawk was to have picked
up her godson from daycare but had not done so.
Sumpter looked through Hawk’s purse and noticed that
her keys were not there and that some money was
missing. . . . Kirkpatrick and Sumpter decided to file
a missing person report and called the police.
Subsequently, Kirkpatrick walked through the house
looking in each room. He entered a bathroom
downstairs and noticed the shower curtain outside the
bathtub. When Kirkpatrick pulled the shower curtain
back, he saw Hawk curled up and submerged in
water . . . . Emergency personnel arrived, tried to
resuscitate Hawk, and then transported her to the
hospital, where she was pronounced dead.
On 20 February 1993, Dr. Sullivan performed an
autopsy on Hawk’s body. . . . Based on his
observations, Sullivan opined that the cause of Hawk’s
death was ligature strangulation.
Defendant confessed that he stopped by Hawk’s
home to see her and that they talked for a while. As
defendant was leaving, Hawk gave him a hug. Defendant
then told Hawk he wanted her to have sex with him.
Defendant took Hawk to her bedroom, told her to remove
her clothing, and told her to perform oral sex on him,
which she did. Then, defendant performed oral sex on
Hawk. The two then engaged in sexual intercourse.
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Defendant admitted that Hawk was afraid and cried the
whole time. Afterwards, defendant told Hawk to put her
clothes on, and he took her into the bathroom.
Defendant placed Hawk in a choke hold, with her head
between his arms, until she passed out. Defendant
then filled the bathtub with water and placed Hawk in
it. Defendant also admitted taking fifty dollars from
Hawk.
Audrey Spain Murder
On 23 June 1993, [Audrey] Spain was to report to
work at 6:30 pm at a Taco Bell restaurant . . . .
Spain did not show up for work. Mark Lawrence,
Spain’s manager, thought it was unusual for Spain not
to come to work, so he drove by Spain’s apartment that
evening. Lawrence saw Spain’s car in the parking lot.
Lawrence then called Spain and left a message on her
answering machine.
The next morning, 24 June 1993, Lawrence rode by
Spain’s apartment and again saw her car in the
lot. . . . Spain did not show up for work that
evening. . . . Lawrence called 911. Thereafter,
officers periodically rode by the apartment and
knocked on the door, but got no response.
On 25 June 1993, maintenance personnel from the
apartment complex entered the apartment . . . and
discovered Spain’s body on the bed. . . .
On 26 June 1993, Dr. Sullivan conducted an
autopsy on Spain’s body . . . . Dr. Sullivan opined
that the cause of death was strangulation.
Defendant confessed that he went to Spain’s house
and that they smoked marijuana together. Defendant
admitted that his motive for visiting Spain was
robbery. He stated that he put Spain in a choke hold
in her living room and inquired about the combination
for the safe at her workplace, but she said she did
not know the combination. Defendant also asked about
money in her personal bank account, but she said she
did not have any money . . . .
Defendant said he did not remember asking Spain
to remove her clothes. Spain begged defendant not to
hurt her, but defendant maintained the choke hold
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until Spain passed out. Defendant then dragged Spain
into her bedroom and had intercourse with her.
Afterwards, defendant took Spain into the bathroom,
where he put her into the shower to wash off any
evidence. Defendant placed Spain into her bed and
tied a T-shirt and bra around her neck. Before
leaving, defendant took Spain’s keys and Visa credit
card. He used the Visa card to purchase gas.
Defendant returned to Spain’s apartment to make phone
calls so it would seem as though she had not died on
the day defendant killed her.
Valencia Jumper Murder
In August 1993, Valencia Jumper was a senior at
Johnson C. Smith University in Charlotte, studying
political science. She also worked at Food Lion . . .
and at Hecht’s . . . . On 9 August 1993, a friend of
Jumper’s, Zachery Douglas, spoke with Jumper on the
phone about meeting later that night. Subsequently,
Douglas arrived at Jumper’s apartment in the early
morning hours of 10 August 1993 and noticed smoke
coming from her apartment . . . .
As firefighters arrived on the scene . . .
firefighter Dennis Arney entered the kitchen and
noticed that a burner on the stove had been left on.
Based on examinations at the fire scene, the
information provided by firefighters, and the observed
pattern the fire traveled, the investigators believed
the fire originated from a pot left burning on the
stove. Firefighters found Jumper’s body in the
bedroom of her apartment.
On 10 August 1993, Sullivan performed an autopsy
on Jumper’s body. . . . [H]e found no soot in
Jumper’s airway, indicating there was no significant
inhalation of smoke during the fire. After learning
there was no carbon monoxide in Jumper’s blood, Dr.
Sullivan listed thermal burns as the cause of death.
After defendant’s confession, Dr. Sullivan reexamined
the Jumper autopsy and amended the cause of Jumper’s
death. Dr. Sullivan testified that the cause of
Jumper’s death was strangulation.
Defendant confessed to Jumper’s murder . . . .
On the night in question, defendant stated that he
stopped by Jumper’s apartment and that they talked for
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a while and then defendant left. Defendant later
returned to Jumper’s apartment and asked her to call
McKnight because they had gotten into a fight. When
Jumper reached toward the phone, defendant put her in
a choke hold. Defendant told Jumper to go to the
bedroom. Jumper begged defendant not to hurt her and
stated she would do anything he wanted. Jumper
removed her clothes. Defendant and Jumper engaged in
oral sex and sexual intercourse. Afterwards, while
Jumper was putting her clothes back on, defendant put
a towel around her neck and choked her until she
passed out. Defendant stated that Jumper started
bleeding from the nose, so he kept the pressure on the
towel for about five minutes until he felt no pulse.
Then defendant wiped his fingerprints from certain
areas of the apartment. Defendant went into the
kitchen and noticed a bottle of rum, so he took the
bottle to the bedroom and poured the rum on Jumper’s
body, on the bed, and on the floor nearby. Defendant
then went back into the kitchen, opened a can of
beans, put the beans in a pot on the stove, and turned
the stove on high. Defendant took the battery out of
the smoke detector. Defendant went back into the
bedroom, lit a match, and threw it on Jumper’s rum-
soaked body before leaving the apartment. Defendant
returned to the apartment twenty minutes later. When
he saw smoke rushing out the door, he left and went
home. Defendant admitted taking jewelry from Jumper’s
body and pawning it in a local pawn shop.
Michelle Stinson Murder
In September 1993, Michelle Stinson, age twenty,
lived in an apartment in Charlotte, with her two young
sons. On 15 September 1993, Stinson’s friend, James
Mayes, stopped by her apartment to visit . . . .
Mayes knocked on the front door, but no one answered.
Mayes heard the children knocking on the window and
telling him their mother was sleeping on the kitchen
floor . . . . Mayes had turned to leave when the
oldest child came out the back door and grabbed him.
Mayes picked up the child and went back into the
apartment through the back door. Mayes discovered
Stinson lying on the kitchen floor with blood around
her. Mayes picked up the phone but realized the cord
had been cut or jerked out of the wall. Mayes took the
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children and asked the neighbors to help him find a
phone. He then called the police.
Dr. Sullivan performed an autopsy on Stinson’s
body on 16 September 1993. . . . Dr. Sullivan opined
that the cause of Stinson’s death was stab wounds to
the chest with strangulation as a contributing cause.
Defendant confessed that he stopped by Stinson’s
apartment around 11:00 pm, with the intention of
raping and murdering her. They talked for a while,
and then defendant got ready to leave and they hugged.
At that point, defendant told Stinson that he wanted
to have sex with her and that he wanted her to remove
her clothes. Stinson told defendant she was sick, but
defendant did not believe her . . . . Defendant began
to choke Stinson. Stinson then agreed to have sex
with defendant and removed her clothes. Defendant
told Stinson he wanted her to perform oral sex on him,
but she stated she did not know how. Defendant
responded, “well you’re about to learn.” Stinson then
performed oral sex on defendant. After having sexual
intercourse on the kitchen floor, defendant
administered a choke hold until Stinson became
unconscious. Defendant strangled Stinson with a towel
he had retrieved from the bathroom. Stinson began to
gasp for air, so defendant took a knife and stabbed
her approximately four times. Defendant used a
washcloth to wipe his fingerprints from a glass, the
door, the phone, the wall, and the floor. Before
defendant left the apartment, Stinson’s oldest son
awoke and defendant told him to go back to bed.
Defendant left through the back door, using a towel to
avoid leaving fingerprints, and threw the knife and
washcloth over a fence near the back of Stinson’s
apartment.
Vanessa Mack Murder
In February 1994, Vanessa Mack was living in an
apartment in Charlotte with her two young daughters.
She worked at Carolinas Medical Center. On 20
February 1994, Barbara Rippy, the grandmother of
Mack’s oldest daughter, went to Mack’s apartment to
pick up Mack’s youngest daughter . . . . Rippy arrived
at 6:00 am and went to the back door, but the door was
ajar. Rippy called out, but Mack did not respond. As
she entered, Rippy noticed Mack’s four-month-old
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daughter lying on the couch, which she felt was
unusual. Rippy entered the bedroom and saw Mack’s
feet hanging off the side of the bed. . . . Rippy
called 911. Rippy then picked up Mack’s daughter and
went outside . . . .
Officer Jeffrey Bumgarner of the Charlotte-
Mecklenburg Police Department found Mack lying on her
bed. Bumgarner observed a towel around Mack’s neck
and blood coming from her nose, ears, and the back of
her head. Bumgarner also noticed a pocketbook, with
its contents scattered on the bed.
Dr. Sullivan performed an autopsy on Mack’s body
on 21 February 1994. . . . Dr. Sullivan opined that
the cause of Mack’s death was strangulation.
Defendant confessed that he had been in Mack’s
neighborhood and had called to see if she was at home.
When she answered, he hung up the phone. He then
walked over to her apartment. Defendant admitted that
his motives for going to see Mack were robbery, to
support his cocaine addiction, and murder. Defendant
stated that he tried to find a way to maneuver Mack
into the position he needed in order to administer a
choke hold, but she refused to give defendant a hug,
so he asked for something to drink. When Mack turned
her back, defendant pulled out a pillowcase he had
brought with him and placed it around her neck. As
Mack resisted, defendant put more pressure on the
pillowcase and explained that this was a robbery.
Defendant and Mack went into the bedroom, where
defendant commanded Mack to give him all the money she
had, including her . . . (ATM) card and . . . (PIN).
After Mack gave defendant everything, he told her to
remove her clothes, which she did. Defendant and Mack
engaged in sexual intercourse. Afterwards, defendant
told Mack to put her clothes back on. Defendant then
tightened the pillowcase around Mack’s neck until she
passed out. Defendant added another garment to keep
the pillowcase from loosening. Defendant then checked
on Mack’s baby and stayed until the baby went to
sleep. . . . Later, defendant attempted to use the
ATM card at several banks and discovered that the PIN
given to him by Mack was not correct.
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Betty Baucom Murder
In March 1994, Betty Baucom lived in an apartment
in Charlotte with her adopted daughter. On 9 March
1994, Baucom, an assistant manager at the Bojangles’
restaurant . . . was scheduled to work, but she did
not report to work. Baucom’s unit director, Jeffrey
Ellis, called Baucom’s apartment several times but
received no answer. . . .
The next morning, Ellis became increasingly
worried because Baucom was again scheduled to work but
did not report. Neither Baucom’s mother nor Baucom’s
aunt had heard from Baucom. Ellis and another
employee drove to Baucom’s apartment . . . . They
knocked on the door and looked in the windows, and
everything appeared normal . . . . Ellis and Baucom’s
mother decided to contact the police department, and
they identified Baucom as a missing person.
Officer Gregory Norwood of the Charlotte-
Mecklenburg Police Department received a call on the
morning of 10 March 1994 to respond to an apartment
where a young woman had been found. She was not
breathing . . . . Norwood discovered Baucom’s body
lying facedown with a towel around her neck. . . .
Dr. Sullivan performed an autopsy on Baucom’s
body on 11 March 1994 . . . . He testified that the
injuries were consistent with a struggle. Dr.
Sullivan opined that the cause of Baucom’s death was
strangulation.
Defendant confessed that he went to Baucom’s
apartment and told her he needed to use the phone.
Baucom let defendant into her apartment. They talked
for a while. As defendant was getting ready to leave,
he placed a choke hold on Baucom, and she fell to the
floor. Defendant told her this was a robbery and
demanded the alarm code, keys, and combination to the
safe for the Bojangles’ restaurant . . . . Baucom was
very upset, and she took approximately thirty minutes
to produce the safe’s combination. Defendant then
released the choke hold. Defendant remembered Baucom
asking, “Why did you do that to me?” Defendant
responded that he was a sick person and that he had
hurt many people. Baucom then embraced defendant,
said that she forgave him, and told him he needed
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help. Defendant became enraged and grabbed Baucom by
the throat, slammed her to the floor, and then
scuffled with her. Defendant got Baucom to her feet
and took her into the bedroom, where he told her to
remove her clothes . . . . Defendant then told Baucom
he wanted her to perform oral sex on him. She grabbed
his penis and started pulling and scratching.
Defendant and Baucom began to scuffle again . . . .
Defendant was able to tighten the towel around
Baucom’s neck until she was nearly unconscious. At
this point, Baucom removed her clothes and engaged in
sexual intercourse with defendant. Afterwards,
defendant told Baucom to put her clothes back on. He
then placed a towel around her neck and asked her if
she had any money. Baucom gave defendant the money in
her purse, and he took a gold chain from around her
neck.
After strangling Baucom to death, defendant took
her television and left in her car. Defendant sold the
television for drugs. He then returned to Baucom’s
apartment to make sure Baucom was dead and to take her
VCR. While in Baucom’s apartment, defendant used a
wet cloth to wipe off the phone, door knobs, and the
wall on which some of the struggle took place.
Defendant used money from Baucom’s purse, the gold
chain, and the VCR to purchase more drugs. . . .
Defendant then left [her] car in a parking lot,
because he thought police were following him.
Defendant stated that he wiped the interior and most
of the exterior of the car, but forgot to wipe the
trunk lid.
Brandi Henderson Murder
In March 1994, Brandi Henderson was living in an
apartment with her boyfriend, Verness Lamar Woods, and
their ten-month-old son, T.W. On 9 March 1994, Woods
was at the apartment taking care of T.W. because
Henderson had a doctor’s appointment. As Henderson
was leaving, defendant went to the apartment to say he
was leaving town. Defendant stayed for only a few
minutes and then left. Henderson returned during the
afternoon . . . . When Woods left, Henderson and T.W.
were alone in the apartment . . . . Woods returned to
the apartment around midnight to find the front door
unlocked, items scattered about the living room, and
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the stereo missing. Woods then went through the
apartment. He first came to T.W.’s bedroom where he
turned on the light and saw T.W. sitting on the bed
gasping for air with something white coming out of his
mouth and a pair of shorts around his neck. Woods
immediately ran to T.W. to remove the shorts . . . .
Woods then realized that Henderson was lying facedown
on the bed. Woods rolled her onto her back and saw
that towels were tied around her neck and that her
face was blue. Woods removed the two towels from
Henderson’s neck and then called 911. He moved
Henderson’s body from the bed to the floor and began
administering CPR pursuant to instructions from the
911 operator. When police officers arrived, it was
obvious Henderson was dead. T.W. was taken to the
hospital.
. . . Dr. Tom Brewer examined T.W. in the
emergency room. Dr. Brewer testified that T.W. was
awake, breathing, and had stable vital signs.
However, his failure to pull away when struck with a
needle was some evidence that he was not acting
normally . . . . Dr. Brewer testified that he
believed the ligature and T.W.’s injuries caused great
pain and suffering.
Dr. Sullivan performed an autopsy on Henderson’s
body on 10 March 1994. . . . Dr. Sullivan opined that
the cause of death was strangulation.
Defendant confessed that he planned to murder
Henderson on Tuesday morning, but when he arrived at
the apartment, Woods was present. Defendant left the
apartment, found Baucom’s apartment in the same
apartment complex, and murdered Baucom. He returned
to Henderson’s apartment the same night when he knew
Woods would be at work. . . . Henderson and defendant
talked for a while, and then defendant asked for
something to drink. When Henderson reached into the
cabinet, defendant choked her and told her to go into
the bedroom. Henderson begged defendant to allow her
to hold her son, but he said, “I don’t know if that
would be a good idea for what we’re about to do.”
Defendant told her this was also going to be a robbery
and demanded money. Henderson gave defendant . . .
approximately twenty dollars worth of coins and said
there was no other money in the house. Defendant also
told Henderson he would be taking the television and
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stereo when he left. Defendant then told Henderson to
remove her clothes, which she did. Henderson grabbed
her son, laid him across her chest, and turned his
head away so that he could not see what was going on.
Defendant and Henderson started to have sexual
intercourse in Henderson’s bedroom but moved to T.W.’s
bedroom so he would not cry. Once in T.W.’s room,
defendant and Henderson continued to have sexual
intercourse, with T.W. lying across Henderson’s chest.
Afterwards, defendant told Henderson to put her
clothes back on . . . . Defendant went into the
bathroom, got a towel, and wiped off everything.
Thereafter, defendant folded the towel, put it around
Henderson’s neck, and strangled her to death.
Henderson’s body fell to the floor. Defendant picked
up Henderson’s body and put it onto T.W.’s bed. He
also tied the towel in a knot around her neck. T.W.
started crying, so defendant gave him a
pacifier. . . . Defendant then took another towel
from the bathroom and tied it tight around T.W.’s neck
so it would be difficult for him to breathe and so he
would stop crying. T.W. stopped crying and laid down
next to his mother’s body. Defendant then ran into
the living room, disconnected the stereo, and loaded
it into Baucom’s car. Defendant also took a
television . . . . Defendant sold the television and
stereo for $175.000 which he used to purchase crack
cocaine.
Deborah Slaughter Murder
In March 1994, Deborah Slaughter lived alone in
an apartment in Charlotte. On 12 March 1994,
Slaughter’s mother, Lovey Slaughter (Lovey), went to
Slaughter’s apartment . . . . Lovey had a key to the
apartment . . . . When Lovey arrived, she knocked on
the door and got no response. She put the key into
the lock and discovered the door was not locked. As
Lovey walked through the door, she saw Slaughter’s
body lying on the floor . . . .
Officer Ronnie Chambers of the Charlotte-
Mecklenburg Police Department entered Slaughter’s
apartment and found a purse with its contents
scattered on the floor. Chambers then noticed
Slaughter’s body lying on the floor faceup. There was
white fabric in Slaughter’s mouth and a towel around
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her neck. Chambers also observed several puncture
wounds in Slaughter’s chest.
On 14 March 1994, Dr. Sullivan performed an
autopsy on Slaughter’s body . . . . Dr. Sullivan
opined that Slaughter’s death was caused by multiple
stab wounds, with strangulation as a contributing
factor in the death.
Defendant confessed that he went to Slaughter’s
apartment to use drugs with her. . . . Defendant
asked Slaughter to get him something to drink. As
Slaughter turned around, defendant put a towel he
brought with him around Slaughter’s neck and tightened
it. Slaughter fell to her knees. Defendant stated
that Slaughter then realized that defendant was the
one who had killed two other girls in nearby
apartments. Defendant told Slaughter to remove her
clothes and perform oral sex on him. Defendant
remembered Slaughter saying, “I don’t do that; you
might as well go ahead and kill me.” Defendant
tightened the towel and asked if she wanted to change
her mind. Slaughter stated that she would not
perform oral sex on defendant. Defendant engaged in
sexual intercourse with Slaughter. Afterwards,
defendant told Slaughter to put her clothes on.
Defendant, knowing Slaughter carried a knife in her
purse at all times, asked Slaughter to empty the
contents of her purse . . . . Defendant kicked the
knife away and then told Slaughter to open the wallet
and give him everything in it. As Slaughter did this,
defendant grabbed the knife. . . . Slaughter hit
defendant and screamed for the police. Defendant then
tightened the towel around Slaughter’s neck until she
fell to the floor and started kicking. Defendant
tightened the towel more and tried to sit on top of
Slaughter’s legs to keep Slaughter from alerting the
neighbors downstairs. Defendant went to the bathroom
to retrieve another towel, which he tied with the
first around Slaughter’s neck. Defendant stabbed
Slaughter with the knife approximately twenty times
in the abdomen. Defendant then washed the knife clean
and wiped his fingerprints from it . . . .
State v. Wallace, 528 S.E.2d 326, 331-40 (N.C. 2000).
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B.
On the evening of March 12, 1994, two Charlotte-
Mecklenburg police officers arrested Wallace on an outstanding
larceny warrant. Wallace was a suspect in some of the murders
described above at the time of his arrest. Rather than take him
to the Intake Center, where arrestees on a single charge were
typically taken, the officers took Wallace to the Law
Enforcement Center for questioning about the murders.
Investigators Mark Corwin and Darrell Price began questioning
Wallace at around 6:43 p.m. To establish a rapport with
Wallace, Corwin and Price asked him about his background,
sports, and his military and employment history. The trial
court found that the investigators did not elicit incriminating
information during this initial period of questioning. Wallace
voluntarily raised his drug addiction and his acquaintance with
victims Brandi Henderson and Betty Baucom. The investigators
provided Wallace with regular breaks, food, and drink during
this first phase of questioning. Corwin testified that Wallace
was held for three hours and fifteen minutes before being given
Miranda warnings, though Wallace was not questioned continuously
during this period due to several breaks. Corwin stated that
the investigators waited to advise Wallace of his rights because
they wanted to “establish[] a good enough rapport with [Wallace]
so that he would continue to cooperate;” they did not “want to
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throw up a roadblock in [the] interview process by mentioning
attorneys and lawyers and remaining silent.” J.A. 1374, 1376.
Corwin acknowledged, however, that “[o]nce we plan to start the
interrogation process we have to advise them.” J.A. 1376.
At approximately 10:00 p.m. on March 12, Corwin and
Price read Wallace his Miranda rights. Corwin testified that
Price read the rights from a standard form. Wallace indicated
that he understood each right and initialed the form. Corwin
also stated that Wallace read the rights aloud without
difficulty and never indicated that he had trouble understanding
them or needed further explanation. Price testified that
Wallace was alert both before and after he signed the waiver.
After the rights advisement and waiver, Corwin and Price asked
Wallace more specific questions about his relationship with the
murder victims.
Investigator Price left the room and Investigator C.E.
Boothe entered. Boothe asked Wallace if he was involved in the
deaths of Betty Baucom and Deborah Slaughter. Wallace responded
that he knew the women but was not involved in their deaths.
Boothe then told Wallace that fingerprints taken from Baucom’s
car matched Wallace’s fingerprints. Boothe testified that
Wallace did not respond to this statement, but that he became
very emotional and formed tears when shown a prior arrest
photograph of himself. Wallace told Boothe that he felt he was
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being accused of murdering women. Boothe said that Wallace then
discussed his drug addiction and his problems with his
girlfriend, Sadie McKnight. As Wallace continued to cry, Boothe
told Wallace he (Boothe) “felt he knew who [Wallace] needed to
talk to.” J.A. 1554. Boothe was referring to “Jesus or to the
Lord.” Id. Boothe then left the room to speak with Corwin and
Price.
At around 5:07 a.m. on March 13, Investigator Tony
Rice entered Wallace’s interview room. He also discussed
Wallace’s drug addiction and relationship with McKnight. Rice
asked if he could say a prayer. After Wallace agreed, Rice held
Wallace’s hand and asked “our heavenly father” to “lead us,
guide us, and direct us as we discuss this most serious issue,”
and to “forgive us of our sins and cleanse us through the blood
of Jesus.” J.A. 1855. Rice testified that it was not unusual
for him to pray with arrestees during interrogations and that he
made up this particular prayer. Rice said that Wallace cried
after the prayer, breathed a “sigh of relief,” and wrote down
the names of all his victims. J.A. 1640. According to Rice,
the prayer’s purpose was to prompt Wallace to “start telling the
truth” but not to “confess.” J.A. 1886.
After Wallace made his list, investigators asked if
they could record his statements, and Wallace agreed. The
recording started around 5:56 a.m., and Wallace gave detailed
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confessions to the nine murders. Wallace took a break to sleep
at around 7:30 a.m., and during the break the police went to a
magistrate and obtained murder warrants. Afterwards, Wallace
accompanied the police on a van ride to show them the locations
of the bodies of Caroline Love and another woman, Sharon Nance.1
In his statements recorded at the Law Enforcement Center and on
the van ride, Wallace gave detailed confessions to each murder
and repeatedly indicated that he had been advised of his rights
but still wished to talk with the police. Wallace said that he
had not been threatened or coerced and that he had “gotten the
truth off . . . . Now these people’s families will know . . . .
I’m grateful that it’s over now and I don’t have to live with it
anymore.” J.A. 2181, 2189.
The trial court admitted the confessions, finding no
evidence that Wallace was coerced or that he had ever expressed
a desire to stop talking or speak with a lawyer. The court also
found that the officers did not elicit any incriminating
information prior to administering Miranda warnings. Although
the trial court observed that at some point during the
interrogation, Wallace requested to see his girlfriend and hold
his daughter, the court concluded that the police did not
1 The state chose not to prosecute the Sharon Nance murder
with the nine others. Wallace v. Polk, No. 3:05cv464-C, 2008
U.S. Dist. LEXIS 36679, at *25 n.2 (W.D.N.C. May 5, 2008).
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interpret this request as a condition for giving a statement.
Wallace said on tape that he did not view the arrangement of a
final moment with his girlfriend as a mechanism to obtain a
statement. He went on to say that he had “wanted to tell the
story for a long time,” that if he had not “told [the police]
. . . the killing would have continued and probably I would have
killed myself as well.” J.A. 2183.
C.
On March 13, 1994, the day after Wallace’s arrest, the
Charlotte-Mecklenburg Police Department held a press conference.
Deputy Chief Jack Boger announced that the police “believe[d]
they ha[d] the man responsible” for several murders and that the
“community should feel some sense of relief.” J.A. 693. Boger
also confirmed that Wallace had led police to the remains of
Caroline Love. Deputy Chief Larry Snider told reporters at the
press conference that Wallace was cooperating with the
investigation. Snider also said that Wallace was a suspect in
the murders of three other women. (There was no physical
evidence linking Wallace to those murders, and he was never
charged with them.)
Subsequent press coverage of Wallace’s arrest was
extensive. It included a typical serial killer profile. Some
of the press described past criminal investigations of Wallace,
while other articles described the shocked reactions of those
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who knew Wallace and considered him an “ordinary person.” J.A.
514. Much of the press stemmed from criticism of the Charlotte-
Mecklenburg police for failing to apprehend Wallace sooner given
the similarity of the crimes, their proximity to one another,
Wallace’s employment connection to several of the victims, and
his past sex-crime charges. Commentators suggested that the
police did not aggressively pursue an investigation because the
victims were African American. The police responded by
describing Wallace as someone who had “been around policemen
enough to know how they worked” and who took “great pains” to
remove physical evidence from crime scenes. J.A. 535. Two
headlines labeled Wallace a “clever suspect” and a “charmer.”
J.A. 535, 540. Some of the statements conveyed the police
department’s conviction that Wallace was linked to several of
the murders based on physical evidence recovered at the scenes.
On August 9, 1994, Wallace moved for a change of venue
on the grounds that the extensive pretrial publicity surrounding
his case presumptively rendered prospective jurors prejudiced
against him. At the motion hearing in January 1995, Chief Boger
confirmed that many of the police officers’ press statements
were in response to public criticism. Boger said that some of
the information released to combat criticism would otherwise
have remained unavailable to the public until trial. Sergeant
Rick Sanders testified that he was concerned about whether these
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press statements might taint the trial and that the district
attorney’s office discouraged further press conferences.
Defense counsel offered the testimony of criminal justice
professor Dr. Robert M. Bohm, who concluded from a poll he
designed that a majority of the population from which the jury
would be drawn had already deemed Wallace guilty.
In denying the motion to change venue in January 1995,
the trial court acknowledged that Wallace “received widespread,
and at times inflammatory coverage from the news media in
Mecklenburg County and surrounding counties.” J.A. 1051. The
court found that Wallace was the subject of sixty-four stories
in the Charlotte Observer between March 13, 1994, and May 10,
1994, and that local television stations aired roughly 174
stories during the same period. Although some of the coverage
was inflammatory and misleading, the court concluded that some
of it was favorable to Wallace and much of it was factual and
informative rather than inflammatory. The court characterized
the statements of senior officers as “motivated in part [by] a
desire to provide information to allay public fears, to quiet
rumors, and to explain the conduct of the police department.”
J.A. 1054. The court found “no evidence that any police
representative knowingly released false information, or
information known to be misleading.” J.A. 1054. Finally, the
court concluded that Dr. Bohm’s survey was not probative of
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prejudice. Because Mecklenburg County was large (a voting-age
population of 350,000) and diverse, the court found it more
likely that prospective jurors would base their conclusions on
trial evidence than pretrial publicity. The court determined
that voir dire examination was the most efficient means of
remedying any prejudice of pretrial publicity.
During voir dire in October 1996, nine of Wallace’s
twelve jurors admitted exposure to pretrial publicity about the
case. All nine stated that their exposure was limited to the
time period between the murders and Wallace’s arrest. Of the
nine, three remembered nothing or were not asked what they
remembered; the other six remembered only a few details, such as
Wallace’s name or the fact that some of the victims worked at
restaurants. All nine avowed to decide the case solely on the
evidence at trial.
D.
The jury found Wallace guilty of the nine murders and
related crimes and recommended death sentences, which the trial
court imposed. The North Carolina Supreme Court affirmed his
convictions and death sentences on direct appeal. The supreme
court rejected Wallace’s arguments that the denied motion to
change venue and the admission of his confessions violated his
constitutional rights. In November 2001 Wallace filed a motion
for appropriate relief (MAR) in the Superior Court of
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Mecklenburg County. After a three-day evidentiary hearing in
August 2004, the MAR court denied Wallace’s claims. Wallace did
not raise the pretrial publicity and Miranda claims before the
MAR court, though he did raise these claims on direct appeal to
the North Carolina Supreme Court in 2000. After the MAR court
denied relief, the North Carolina Supreme Court denied his
petition for certiorari on November 5, 2005. Wallace petitioned
for a writ of habeas corpus in the Western District Court of
North Carolina on November 8, 2005. The district court rejected
all of his claims. We granted a certificate of appealability on
the pretrial publicity and involuntary confession claims.
Wallace appeals.
II.
Under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, a
federal court exercising collateral review of criminal claims
adjudicated on the merits in state courts accords great
deference to a state court’s legal conclusions and factual
findings. We must deny habeas relief unless the state
adjudication:
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
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(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). A 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 “confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite” to the Supreme Court’s. Williams
v. Taylor, 529 U.S. 362, 405 (2000). A state court unreasonably
applies federal law when it “correctly identifies the governing
legal rule but applies it unreasonably to the facts of a
particular . . . case.” Id. at 407-08. A state court also
unreasonably applies federal law when it “applies a precedent in
a context different from the one in which the precedent was
decided and one to which extension of the legal principle of the
precedent is not reasonable,” or when it “fails to apply the
principle of a precedent in a context where such failure is
unreasonable.” Robinson v. Polk, 438 F.3d 350, 355 (4th Cir.
2006) (internal citations omitted). Further, a state court’s
factual findings are presumed correct and may be rebutted only
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). We
review de novo a district court’s application of these
principles. Robinson, 438 F.3d at 354.
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Wallace contends that the North Carolina state court
reached decisions that were contrary to, and an unreasonable
application of, federal law when it determined that (1) denying
his motion to change venue based on pretrial publicity did not
deprive him of an impartial jury under the Sixth Amendment, and
(2) his confessions were voluntary and not obtained amidst
circumstances calculated to undermine his free will.
A.
Wallace argues that the pretrial publicity surrounding
his arrest was so widespread and inflammatory that a jury drawn
from the community should have been presumed partial regardless
of responses given during voir dire. Supreme Court precedent
sets a high bar for presumed prejudice on the basis of pretrial
publicity. For a jury to be presumed partial by pretrial
publicity, the publicity must involve coverage that is almost
irrefutably incriminating and proximate in time to the trial, or
the publicity must disturb the trial proceedings. The publicity
must rise to a level that renders court proceedings “a hollow
formality.” Rideau v. Louisiana, 373 U.S. 723, 726 (1963).
In Rideau residents of a town with a population of
150,000 were repeatedly exposed to a film clip of a defendant
personally confessing to murder. Id. at 724. The Supreme Court
presumed juror prejudice based on the spectacle of a broadcast
confession by the defendant himself. Id. at 726. The clip was
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shown two months before the defendant’s trial. Id. The Court
also found presumed prejudice in Irvin v. Dowd, 366 U.S. 717,
725 (1961), a case in which the defendant was the subject of a
“barrage of newspaper headlines, articles, cartoons and
pictures” six months before his trial. The coverage reported
that the defendant confessed to six murders and offered to plead
guilty to avoid the death penalty. Id. at 725-26. The
publicity also characterized the defendant as “remorseless and
without conscience.” Id. at 726. The unabated publicity
convinced the Court that jurors’ “statement[s] of impartiality
[during voir dire] [could] be given little weight.” Id. at 728.
Other Supreme Court decisions indicate that jurors may
be presumed prejudiced by publicity that infects the actual
trial proceedings. In Estes v. Texas, 381 U.S. 532, 535-36
(1965), the Court found presumed prejudice in a case of national
notoriety in which the press attended and televised pretrial
hearings, undermining the courtroom’s atmosphere of decorum with
obtrusive cables, wires, and microphones. Similarly, in
Sheppard v. Maxwell, 384 U.S. 333 (1966), the Court found
presumed prejudice in the nationally known murder trial of Sam
Sheppard. Not only was there pervasive publicity from the
outset characterizing Sheppard as the murderer, but the press
took on the air of theater. Reporters broadcasted a staged
inquest presided over by the coroner and prosecutor and attended
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by hundreds of spectators. Id. at 339. At trial the press was
a constant presence inside and outside the courtroom. Jurors’
photographs were published. Id. at 345. The jury visited the
murder scene in the presence of hundreds of reporters. The jury
was not sequestered and was only admonished to avoid press
coverage during the trial. Id. at 347, 353.
When pretrial publicity does not reach an amplitude
that makes trial “a hollow formality,” voir dire examination is
the trial court’s metric of juror partiality. Murphy v.
Florida, 421 U.S. 794 (1975). If voir dire “indicates no such
hostility to [a defendant] by the jurors . . . as to suggest a
partiality that could not be laid aside,” then pretrial
publicity has not deprived the defendant of a fair trial. Id.
at 800. Jurors are not expected to be “totally ignorant of the
facts and issues involved,” and even a juror’s preconceived
conclusion on guilt will not alone rebut the presumption of
impartiality if the trial court is satisfied that the juror “can
lay aside his impression or opinion and render a verdict based
on the evidence presented in court.” Id. (citing Irvin, 366
U.S. at 723). Additionally, the Supreme Court has noted the
distinction between “mere familiarity with [a defendant] or his
past and an actual predisposition against him,” and between
“largely factual publicity from that which is invidious or
inflammatory.” Id. at 801 n.4.
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Wallace argues that the state court did not address
his motion to change venue under the Supreme Court’s precedent
governing presumed prejudice, but instead went straight to
actual prejudice by discussing voir dire. Although the court
did not explicitly address Rideau, Irvin, Estes, or Sheppard in
its ruling, a “state court’s disposition of a claim need not
include extended analysis to qualify as an ‘adjudication on the
merits’ under section 2254(d).” Walker v. True, 401 F.3d 574,
579 n.1 (4th Cir. 2005). The record indicates that the state
court reasonably applied the Supreme Court’s preference for voir
dire as the mitigating tool of pretrial publicity after
implicitly finding that Wallace’s pretrial publicity did not
meet the high bar required for presumed juror prejudice. After
finding that the publicity was more factual than inflammatory, a
distinction that the Supreme Court recognizes, Murphy, 421 U.S.
at 801 n.4, the trial court went on to note that “jurors’
responses to the questions on Voir Dire are the best evidence of
whether pretrial publicity was inflammatory or prejudicial.”
J.A. 1055. The court concluded its ruling by noting Wallace’s
“right to renew the motion, because of subsequent events or
because of information elicited during Voir Dire.” J.A. 1056.
This suggests the state court understood that further publicity
shortly before jury selection might create presumed prejudice.
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The state court could reasonably conclude that the
pretrial publicity did not make Wallace’s trial a hollow
formality. In a case involving nine brutal, similar murders in
a relatively short time span in the same geographic area, it
would be a tall order to assemble a jury that had heard nothing
about the case. Of course, the high-profile nature of Wallace’s
case gave the trial court reason to consider his motion for
changed venue even more carefully, and we are satisfied that the
court did so.
Most importantly, the time gap between the bulk of the
publicity and the trial was substantially longer in Wallace’s
case than in Rideau. Wallace’s trial was nearly two years after
the surge of publicity, whereas Rideau’s trial occurred less
than two months after his broadcast confession. When it denied
Wallace’s motion to change venue at the hearing in January 1995,
the state court could have reasonably concluded that the
prejudicial effects of pretrial publicity would dissipate by the
time jury selection would begin in October 1996.2 Additionally,
2 The North Carolina Supreme Court observed that although
the trial court referenced the passage of time in its findings
of fact, it did not explicitly rely on this rationale in denying
the motion. State v. Wallace, 528 S.E.2d 326, 345 (N.C. 2000).
We agree with the supreme court, however, that the trial court
factored time into its conclusion as part of the “totality of
the circumstances.” J.A. 1056. In rejecting the probative
value of Dr. Bohm’s poll, the trial court explained that the
“passage of time and the publicity or lack thereof after the
(Continued)
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prospective jurors in Wallace’s case, unlike those in Rideau,
were not presented with Wallace’s taped confession in news
broadcasts.
We also conclude that the state court did not make an
unreasonable determination of the facts when it concluded that
most of Wallace’s pretrial publicity was factual, not
inflammatory. We must presume this factual finding correct, 28
U.S.C. § 2254(e)(1), and Wallace has failed to rebut it by clear
and convincing evidence. Although Wallace’s arrest was followed
by some provocative and conclusory press – such as the serial
killer profile and the portrayal of Wallace as a clever suspect
who destroyed evidence – we agree that most of the coverage was
factual. Much of it focused on the victims and the family and
friends who mourned them. Although the coverage of Wallace’s
prior arrests was certainly unfavorable, it was also factual.
And even if Wallace was not charged with some of the crimes
mentioned, the fact that police believed that he was connected
to the crimes is not necessarily inflammatory.
While we do not discount the prejudicial effects of
hasty and confident statements made by a police department
facing public criticism, we also cannot discount the right of
pole [sic] was taken, could amelierate [sic] or exacerbate the
responses to the questions . . . .” J.A. 1055.
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the department to communicate information to the public. Nor
can we expect the press to discriminate between information that
would be admissible and inadmissible at trial. In sum, the
state court reasonably found that the pretrial publicity would
not make Wallace’s trial a hollow formality and that voir dire
would provide the best indicia of prejudice. Unlike the
prospective jurors in Rideau and Irvin, Wallace’s jury pool did
not encounter almost irrefutably incriminating information –
such as a taped confession or a promised guilty plea – shortly
before trial. Nor is there any indication that the publicity
infected the trial itself as in Sheppard and Estes.
B.
Wallace’s next claim is that the state court’s
admission of his confessions was contrary to, and an
unreasonable application of, federal law. The investigators’
delayed administration of Miranda warnings, Wallace argues, was
a coercive tactic calculated to undermine his free will and
render his confessions involuntary under the Fifth and
Fourteenth Amendments.
Wallace argues that the applicable Supreme Court
precedent for this claim is Missouri v. Seibert, 542 U.S. 600
(2004), rather than Oregon v. Elstad, 470 U.S. 298 (1985).
Although Seibert was decided after Wallace’s conviction became
final, Wallace argues that the case did not announce a new rule
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of constitutional law, but was rather a necessary consequence of
Elstad. We need not decide this question because under either
case, the state court reasonably applied the law to admit
Wallace’s confessions. Both cases involved suspects giving
incriminating statements before being advised of their Miranda
rights. Yet the state court here found that the police did not
elicit incriminating information during the pre-warning period
of questioning. Therefore, the question is whether the state
court reasonably found under the totality of the circumstances
that Wallace’s subsequent confessions were voluntary. Moran v.
Burbine, 475 U.S. 412, 421 (1986).
In Elstad the Supreme Court held that the failure to
give Miranda warnings until after a suspect has given an
incriminating statement does not necessarily render post-warning
confessions inadmissible, provided that the post-warning
statements are voluntary. 470 U.S. at 312. The Court
underscored the “vast difference between the direct consequences
flowing from coercion of a confession by physical violence or
other deliberate means calculated to break the suspect’s will
and the uncertain consequences of disclosure of a ‘guilty
secret’ freely given in response to an unwarned but noncoercive
question.” Id. Elstad voluntarily made an incriminating
statement before police advised him of his rights. Id. at 315.
The Court refused to extend Miranda to hold that “a simple
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failure to administer the warnings, unaccompanied by ‘any’
actual coercion or other circumstances calculated to undermine
the suspect’s ability to exercise his free will, so taints the
investigatory process that a subsequent voluntary and informed
waiver is ineffective for some indeterminate period.” Id. at
309.
In Seibert the Court addressed the consequences of a
deliberate rather than inadvertent delay of Miranda warnings. A
plurality held that when the delayed administration of Miranda
warnings is deliberate and elicits a confession, it is unlikely
that subsequent warnings serve their purpose because suspects
presumably conclude that the pre-warning statement is admissible
regardless. 542 U.S. at 613. In concurrence, Justice Kennedy
proposed that post-warning statements given after a deliberate
delay should be excluded unless police employ curative measures,
such as an additional warning explaining that the pre-warning
statement is likely inadmissible. Id. at 622. Because no
rationale in Seibert garnered a majority, and Justice Kennedy
concurred on the narrowest grounds, his opinion may be treated
as the Court’s holding. Marks v. United States, 430 U.S. 188,
193 (1977).
Both Elstad and Seibert focus on warnings given after
police have already elicited an admission. The state court
found that investigators Corwin and Price did not ask any
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questions designed to elicit an incriminating response before
administering warnings. See Rhode Island v. Innis, 446 U.S.
291, 300-01 (1980) (defining “interrogation” for Miranda
purposes as not only “express questioning,” but “words or
actions on the part of police . . . that the police should know
are reasonably likely to elicit an incriminating response”).
Wallace maintains that his statements regarding his drug abuse
and acquaintance with Henderson and Baucom were incriminating
because they were links in a chain of evidence against him, and
that the police exploited these statements by immediately asking
for more detail about Wallace’s connection to the victims after
they gave him the Miranda warnings. The case that Wallace cites
to support this argument, Ohio v. Reiner, 532 U.S. 17 (2001) is
inapplicable. Reiner addressed the reasonableness of witnesses’
perceptions that their testimony is incriminating for the
purposes of the Fifth Amendment’s privilege against self-
incrimination. Id. at 20. The Court held that the privilege
extends to answers “which would furnish a link in the chain of
evidence needed to prosecute.” Id. Reiner thus speaks to what
makes a statement sufficiently incriminating to allow a witness
to assert the Fifth Amendment privilege; it does not define what
constitutes interrogation for Miranda purposes. Interrogation
is defined by police questioning and conduct designed to elicit
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an incriminating response, not by a suspect’s belief as to what
statements are incriminating.
Because Miranda warnings are not required unless there is
both custody and interrogation, 384 U.S. 436, 467-68 (1966),
Wallace’s argument that his post-warning suppression should have
been suppressed must rest on the voluntariness of his waiver of
his Miranda rights. A voluntary waiver is one that was “the
product of a free and deliberate choice rather than
intimidation, coercion, or deception” and was “made with full
awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it.” Moran, 475
U.S. at 421. “Only if the ‘totality of the circumstances’
surrounding the interrogation reveals both an uncoerced choice
and the requisite level of comprehension may a court properly
conclude that the Miranda rights have been waived.” Id.
Wallace argues that under Elstad the delayed administration
of Miranda warnings was a circumstance calculated to undermine
his free will and that it rendered his subsequent confession
involuntary. In Wallace’s case, however, the state court’s
finding of voluntariness despite the delay was not contrary to,
nor an unreasonable application of, federal law. After properly
finding that the police did not ask questions designed to elicit
an incriminating response prior to giving the warnings (and that
Miranda therefore did not apply to Wallace’s initial phase of
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questioning), the state court properly applied federal law by
assessing the voluntariness of his waiver under the totality of
the circumstances.
Although the state court found that the pre-warning
questioning of Wallace was not interrogation, it properly
considered delay as a circumstance bearing on the voluntariness
of Wallace’s post-warning waiver. Voluntariness factors include
“both the characteristics of the accused and the details of the
interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226
(1973). The court found that the pre-warning period of
questioning was not continuous because Wallace had regular
breaks to access food, drink, and the restroom. There were no
indications that Wallace was sleep-deprived or under the
influence of any impairing substance during this time.
Investigators Price and Corwin testified that Wallace read and
initialed the Miranda form with comprehension and without
hesitation, and that Wallace told them he had been read Miranda
rights before. The state court found that the police did not
ask specific questions regarding Wallace’s relationship with the
victims until after they gave the warnings. Wallace was allowed
to sleep after his first detailed confession and before he
accompanied police on the van ride, where he again waived his
rights. The state court also found that Wallace did not view
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his request to see his girlfriend and daughter as a condition
for giving statements.
Given these factual findings, which Wallace did not
rebut with clear and convincing evidence, we cannot say that the
state court unreasonably found Wallace’s confessions voluntary
despite the delay. Although the police clearly hoped that the
pre-warning rapport they established with Wallace would continue
after the warnings, federal law countenances this strategy. The
Elstad Court noted that the Fifth Amendment is not “concerned
with moral and psychological pressures to confess emanating from
sources other than official coercion.” 470 U.S. at 304-05. The
state court reasonably found that the delay did not amount to
official coercion.
We also decline to hold that the state court
unreasonably found that Investigator Rice’s prayer did not
render Wallace’s confessions involuntary. The prayer was given
after Wallace had been advised of his Miranda rights. The state
court found that Wallace agreed to the prayer, expressed relief
afterwards, and then gave detailed confessions to each murder.
As with the delayed administration of warnings, the state court
could reasonably find that the prayer was more in the nature of
“moral pressure” than “official coercion.” Elstad at 305.
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39
III.
For the foregoing reasons, we conclude that the state
court’s decisions on Wallace’s pretrial publicity and confession
claims were not contrary to, nor an unreasonable application of,
clearly established federal law. Accordingly, the district
court’s order dismissing Wallace’s petition for writ of habeas
corpus is
AFFIRMED.

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