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Hendrix v. Palmer

United States Court of Appeals, Sixth Circuit

June 26, 2018

Joseph Hendrix, Petitioner-Appellee/Cross-Appellant,
v.
Carmen Palmer, Warden, Respondent-Appellant/Cross-Appellee.

          Argued: April 25, 2018

          Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:11-cv-14659-Avern Cohn, District Judge.

         ARGUED:

          Linus 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.

         ON BRIEF:

          John 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

          OPINION

          RONALD LEE GILMAN, CIRCUIT JUDGE

         Joseph 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.

         At 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 State's case.

         On 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 Hendrix relief.

         Hendrix 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.

         For the 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 them.

         I. BACKGROUND

         A. Factual background

         On the 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.

         The 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 happened.

         The 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."

         Approximately 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.

         Hendrix 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.

         Once in 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."

         Later 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.

         An 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.

         Despite 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.

         At 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.

         Detective 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."

         Detective 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 nature."

         Evangeline 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."

         The 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 committed.

         The 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.

         The 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 to Hendrix.

         Next, 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.

         Detective 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.

         The 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 homes.

         During 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.

         Further, 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.

         The 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.

         Immediately 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.

         The jury found Hendrix guilty of carjacking, felony murder, and unlawfully driving away a motor vehicle. He was sentenced to life in prison.

         B. Procedural background

         The 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. ...


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