Argued: April 25, 2018
from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:11-cv-14659-Avern
Cohn, District Judge.
Banghart-Linn, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant/Cross-Appellee.
Michael Skinner, LAW OFFICES OF MICHAEL SKINNER, Lake Orion,
Michigan, for Appellee/Cross-Appellant.
S. Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellant/Cross-Appellee.
Michael Skinner, LAW OFFICES OF MICHAEL SKINNER, Lake Orion,
Michigan, for Appellee/Cross-Appellant.
Before: GILMAN, COOK, and GRIFFIN, Circuit Judges
LEE GILMAN, CIRCUIT JUDGE
Hendrix is currently serving a life sentence imposed by a
Michigan state court following his conviction for felony
murder, carjacking, and unlawfully driving away a motor
vehicle. The district court conditionally granted
Hendrix's application for a writ of habeas corpus brought
under 28 U.S.C. § 2254. Warden Carmen Palmer (the State)
appeals the issuance of the writ, and Hendrix cross-appeals
the denial of relief on several alternative claims.
trial, the State presented evidence that Hendrix committed a
carjacking that resulted in a woman's death. The evidence
included statements that Hendrix made to the police after
being reinterrogated following the invocation of his right to
counsel-statements that the State now concedes were
inadmissible under Supreme Court precedent. Hendrix's
trial counsel failed to challenge the admissibility of these
statements, however, and they became central to the
direct appeal in the Michigan courts, Hendrix challenged the
admission of these statements as violating his Fifth
Amendment rights under Miranda and its progeny. He
also argued that his counsel's failure to challenge the
statements' admission violated his Sixth Amendment right
to the effective assistance of counsel. The State opposed
Hendrix's claims on the theory that its use of the
statements was proper. Michigan's courts uniformly denied
then brought this federal habeas action. After the district
court ordered oral argument on Hendrix's Fifth Amendment
claim, the State changed its position, conceding for the
first time that Hendrix's statements were admitted
erroneously, but now arguing that the error was harmless. The
district court granted habeas relief on Hendrix's Fifth
and Sixth Amendment claims, but denied relief on his other
claims. Hendrix and the State both appealed.
reasons set forth below, we (1) AFFIRM the
judgment of the district court granting Hendrix habeas relief
based on his Fifth and Sixth Amendment claims; (2)
REVERSE the district court's denial of
Hendrix's Doyle claim; and (3)
AFFIRM the holding of the district court
that the evidence was sufficient to support Hendrix's
conviction. Hendrix is therefore entitled to the habeas
relief granted by the district court, but the State is
entitled to retry him if it so desires, subject to the time
constraint imposed by the district court. The remaining
issues raised by Hendrix are moot, and we do not consider
evening of September 5, 2006, Gina Doen was running errands
with her mother and daughter in Shelby Charter Township,
Michigan, located about 15 miles north of Detroit. Gina
parked her Dodge Caravan at a strip mall and, along with her
daughter, walked into a dry cleaner. Her 65-year-old mother,
Evangeline Doen, remained in the minivan, so Gina left the
vehicle's doors unlocked and the keys in the ignition.
After about five minutes in the dry cleaner, Gina walked out
and saw her mother lying on the pavement. The minivan was
gone. Her mother's head was bleeding.
police arrived minutes later, and Evangeline Doen was taken
to the hospital. Although Evangeline had sustained a serious
head injury, she was still conscious and able to speak. At
the hospital, Evangeline told a police officer what had
officer testified at Hendrix's trial that Evangeline told
him that she had been sitting in the front seat of the
minivan when a man got into the driver's seat. Evangeline
"told this young man that he had got the wrong car, he
got into the wrong car," but the man "told her to
get out and started backing up the van." She tried to
get out, but as she was struggling to remove her seatbelt,
the man pushed her out the door. Evangeline described the
carjacker as a "tall, thin, white male with possible
glasses, and . . . possible blonde hair . . . [and] some
mention about a brown shirt."
six hours after the carjacking, at around 1:30 a.m. on
September 6, 2006, Officer Kyle Bryent encountered the stolen
minivan parked at a gas station in an area of Detroit known
for drug trafficking. Hendrix was inside. Officer Bryent had
previously arrested Hendrix in the same area, although the
record does not disclose the reason for that arrest. After
Officer Bryent removed Hendrix from the minivan and arrested
him, Sergeants Brad Ferguson and Stan Muszynski transported
Hendrix from Detroit to Shelby Charter Township.
had brown hair at the time of his arrest. Inside the minivan,
officers found a beige and white cap, a black knit hat, a
white do-rag, and a makeup bag. Hendrix's girlfriend,
Michelle Zlatevski, later told the police that the makeup bag
was probably hers. Fingerprints belonging to Hendrix were
found on the vehicle's rearview mirror and sliding door.
Officers also found fingerprints that belonged to neither
Hendrix nor Gina.
the police car, Hendrix acknowledged and waived his
Miranda rights. Sergeant Muszynski then questioned
him about how he acquired the minivan. Hendrix stated that he
did not know how he acquired the minivan and did not know
what to say. He appeared "very nervous."
that morning, Detective Terry Hogan removed Hendrix from his
jail cell for interrogation. Detective Hogan described the
interrogation in his police report:
At approx. 7:30 AM I escorted Hendrix from the Shelby Twp
cell block to the interview room. I advised Hendrix of his
rights off the Shelby Twp advise [sic] of rights forms.
Hendrix refused to speak with me until he had the opportunity
to speak with an attorney. I returned Hendrix to the cell
block without any further questioning.
advice-of-rights form signed by Hendrix confirms that he
requested an attorney. Detective Hogan later testified that,
at this meeting with Hendrix, he informed Hendrix that a
woman was seriously injured during the minivan's
carjacking and that she might die from her injuries. The
record does not reveal when during this meeting Detective
Hogan informed Hendrix of the seriousness of the victim's
condition, but Detective Hogan's trial testimony strongly
implies that it was after Hendrix had refused to cooperate.
Hendrix having requested an attorney at the September 6
meeting and not yet having met with one, Detective Hogan
sought to interrogate him again two days later. As Detective
Hogan recorded in a report: "On 9/8/06 myself and D/Sgt.
Muszynski again tried to interview suspect Joseph
Hendrix." Detective Hogan presented Hendrix with another
advice-of-rights form at the September 8 meeting, which
Hendrix refused to sign. Hendrix, according to Detective
Hogan, nonetheless agreed to speak with him.
trial, the State elicited little testimony regarding
Hendrix's statements to the police on September 6. But it
elicited extensive testimony regarding his statements on
September 8. Detective Hogan testified that; on September 8,
Hendrix did not want to say where he was during the evening
of September 5. Hendrix stated only that he had been in
Sterling Heights and had called his grandmother's house
from a 7-Eleven store. But investigators found no evidence of
a call from area pay phones to Hendrix's grandmother,
although his grandmother told Detective Hogan that she
remembered receiving a call from Hendrix that day.
Hogan also testified that Hendrix had cryptically said to
"just check with [the Detroit Police Department], they
know the truth." Finally, Hendrix asked Detective Hogan
"if he was going to be charged with murder or
homicide." Soon afterwards, Hendrix clammed up, saying
"I don't think I'm going to say anymore, because
. . . I don't want to get into anymore trouble."
Hogan further testified that he surmised from Hendrix's
reluctance to divulge his September 5 whereabouts that
Hendrix was "afraid to admit that he's the one that
actually pushed Mrs. Doen out of the vehicle." He
considered Hendrix's silence "noteworthy"
because "[i]f he's not the thief, he's not going
to want to be charged with a crime of that type of
Doen died on her tenth day in the hospital, having suffered
from a subdural hematoma. At trial, the medical examiner
testified that her death was primarily caused by "blunt
force head trauma," consistent with a "decent fall
like from the back of your head with the concrete."
State also sought to link Hendrix to the carjacking with
evidence that he had committed similar thefts in the past. In
particular, the State emphasized that the circumstances of
the carjacking-including its occurrence near Hendrix's
residence, the carjacker's opportunistic use of keys left
in the ignition, and the minivan's ultimate destination
in a drug-trafficking area of Detroit-were consistent with
the circumstances of prior vehicle thefts that Hendrix had
State presented evidence that the first such theft occurred
approximately four years earlier, "just right around the
block" from where Hendrix lived. Jeffrey Piontkowski
testified that, in December 2002, he walked out of a
restaurant to see a man behind the wheel of his 1985 GMC
pickup truck. Trying to thwart the theft, Piontkowski opened
one of the truck's doors and managed to get his hand and
foot inside. But as the thief started driving away,
Piontkowski was thrown off the truck and onto the pavement.
Hendrix later pleaded guilty to the theft.
State also presented evidence that Hendrix had stolen two
vehicles only days before the theft of Gina Doen's
minivan, again in areas near his residence. Maureen Scott
testified that, on August 31, 2006, her Ford Explorer was
stolen from a parking lot outside of a Little Caesar's
Pizza. She had left her keys in the vehicle. The police found
the Explorer shortly after midnight the following day,
crashed into a telephone pole about two blocks from where
Doen's minivan was later found. Inside the Explorer were
two inmate bracelets and an arraignment sheet, all belonging
Louie George testified that, on September 3, 2006, his 2005
Dodge Ram was stolen while parked in front of a 7-Eleven
store. He had left the doors unlocked and the keys inside.
The police discovered the truck in Detroit shortly
thereafter, roughly two blocks from where they had found
Scott's Explorer. Hendrix was alone inside.
Hogan testified that, in his opinion, the shared
characteristics of these prior vehicle thefts suggested that
Hendrix had a modus operandi. The detective also noted that
no similar thefts had occurred since Hendrix's arrest.
For these reasons, and because of Hendrix's September 8
statements, Detective Hogan believed that Hendrix had stolen
Gina Doen's minivan.
State also adduced evidence of a motive that could explain
Hendrix's modus operandi. Several officers testified that
the area where they discovered the Ford Explorer, the Dodge
Ram, and the Dodge Caravan is a known narcotics
area-"poor" and full of "drug
houses"-where addicts can trade cars for drugs and sex.
Such thefts are usually crimes of opportunity, the officers
said, which means that drug addicts typically steal cars from
areas near where they live or work. Professional car thieves,
in contrast, typically take orders to steal particular kinds
of cars, which might not be readily at hand, so such thieves
are more likely to steal cars in areas further from their
closing argument, the prosecutor emphasized to the jury that,
since Hendrix's arrest, "there haven't been any
car thefts like that," and the "car thefts stopped
after he was locked up." The prosecutor also spent
considerable time making the following points that Hendrix
has challenged as improper: that Hendrix presented no alibi
witnesses; that the police would not bring charges against an
innocent person; and that Hendrix had already shown himself,
by his theft of Piontkowski's GMC pickup truck, to be
capable of violence.
in his closing argument, the prosecutor relied heavily on
Hendrix's silence on September 8 as evidence of guilt.
The relevant portion of that argument is as follows:
What's more important now is Detective Hogan's
interview with [Hendrix] on September 8 at the Macomb County
Jail. Detective Hogan says a woman was badly injured, pushed
out of that minivan, and she might die, and this is your
opportunity to tell what happened. In other words, maybe not
verbalize precisely as follows goes like this: Tell me where
you were, give me an alibi, who were you with, and how did
you obtain the vehicle? Because if you can give me that
information, then I can investigate it, and I can clear you.
There's no question to 14 of you [on the jury] that if
Defendant had an alibi for his whereabouts say between 6:00
p.m., 7:30 p.m., he wouldn't have been charged. The alibi
would have been investigated, and if true, he wouldn't be
charged with this carjacking. Where was he? Ask yourselves
where was he? We're not asking where he was from 3:00
a.m. to 5:00 a.m., where he might have been sleeping alone
where nobody knows. Everybody knows where he was and where
she was two days earlier, or three days earlier during the
evening, everybody knows that. Now, he's in the County
Jail, knows he's been arrested for a crime in connection
with this car theft, carjacking, yet, and he's had time
to think about it too, and here comes Terry Hogan. Now, the
defense, not Mr. Sheikh, he's a great guy, but the
Defendant might be thinking well, Hogan is my enemy, Hogan
just wants to frame me. But, Hogan wants to find out who did
this. This is a serious case where a woman might die. And she
did die. Hogan wants to know who did it. The Defendant has
the alibi, and the alibi can be verified. Alibis easily can
be verified. For example, what if Defendant were at home and
engaged in a long telephone call: The telephone bills would
support that, that he was on the phone from say six to eight
p.m., or if he went to a restaurant, saw him use a credit
card, that could be verified. If he's at a friend's
house, a relative's house, that all could be verified.
The point is if he had an alibi, he would have told Detective
Hogan. But, there is no alibi. And you know why there's
no alibi? Because there's no alibi. He has none. He has
none. There is no doubt in this world that if had an
explanation for where he was at that time, on that day, we
would know it. He would have told Sergeant Ferguson, and if
not Sergeant Ferguson, he would have told Detective Hogan.
When he can't tell where he is, what does that mean?
Because he wasn't anywhere other than Vineyards parking
lot at around 6:50 p.m. Committing his thefts by his unique
modus operandi. . . . He's not some 16-year-old kid,
somebody facing his first trouble with the law. He's been
around. He knows the drill. And he has heard from Detective
Hogan that the woman might die. Now, ask yourselves, would
anybody with any intelligence know that he's about to
face a very serious charge, carjacking, and felony murder if
the woman dies. If you're not the person who took the car
at Vineyards, you're going to be clambering [sic], be
wailing. Detective, let me tell you what happened. This is
how I got the car, Detective. I didn't want to say
anything before, but here's how it happened. Never. Not
one word. He says, oh, I don't want to say anymore,
because it will get me into trouble. He tells Sergeant
Ferguson, I don't know how I got the minivan. He knows,
he's the thief.
prosecutor then continued:
[The police] did what they could, and finally the Defendant
had an opportunity to tell us what happened on September 6
and September 8 and he didn't. His silence is defining,
his silence speaks a thousand words. His silence in refusing
to say from where he made the call, how he obtained the
vehicle, and who he was with during the important times.
That's like a thunderbolt from the sky. In other words,
he's saying, I did it. Because if I didn't do it,
I'll tell you why. And by the way here we are, six months
and 16 days since the incident. And have you been presented
with an alibi witness for the Defendant? No. Not one. Not one
who can say he or she was with the Defendant, 5:00, 6:00,
7:00, 8:00. Not one.
after this argument, the trial court sua sponte instructed
the jury that it could not draw any adverse inference from
the fact that Hendrix had not testified at trial. But the
court drew a distinction between Hendrix's silence in
court and his silence while in custody, erroneously
instructing the jury that it could consider Hendrix's
silence in custody as evidence of his guilt.
jury found Hendrix guilty of carjacking, felony murder, and
unlawfully driving away a motor vehicle. He was sentenced to
life in prison.
procedural history of this case is complex. Hendrix initially
appealed his conviction to the Michigan Court of Appeals. In
that court, he filed a motion to remand so that he could
investigate the same Miranda and
ineffective-assistance claims that he still presses today.
Critically, his motion to remand presented the Michigan Court
of Appeals with evidence that his statements on September 8,
2006 were obtained in violation of his constitutional rights.