Wilson v. State of Oklahoma, 10th Cir. (2010)
Wilson v. State of Oklahoma, 10th Cir. (2010)
Wilson v. State of Oklahoma, 10th Cir. (2010)
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
No. 08-5101
(N.D. Okla.)
(D.C. No. 4:02-CV-00323-CVE-PJC)
Respondents - Appellees
Before OBRIEN, BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge.
Jesil Abraham Wilson, a minor, was charged with First Degree Murder in adult
court. The Oklahoma trial court denied Wilsons motion to be certified as a child and
proceed in juvenile court (reverse certification). Wilson was convicted by a jury and
sentenced to life imprisonment. He filed a 28 U.S.C. 2254 federal habeas petition
alleging ineffective assistance of counsel with respect to the reverse certification
*
This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
proceedings. The district court concluded his claim as to pretrial counsel1 was
procedurally barred and Wilson had failed to show ineffective assistance of appellate
counsel constituted cause and prejudice to overcome the bar. We affirm.
I.
FACTUAL BACKGROUND
The following facts derive mainly from the testimony of Officer Mark Brisbin,
Detective Alvin McDonald and the victims sister at the reverse certification hearing held
on November 4, 1998.
At approximately 1:30 a.m. on January 3, 1997, 13-year-old Wilson and his cousin
Zachary Ferguson went to Mitchell Knightens apartment in Tulsa, Oklahoma, to retrieve
a gun Knighten had taken from Wilson a few days earlier. Wilson knocked on the door,
while Ferguson concealed himself around the corner. Knightens sister answered the
door. Wilson asked her to get her brother; Knighten then came to the door. Wilson
demanded the gun from Knighten. When Knighten did not return the gun, Ferguson
emerged from around the corner and fatally shot Knighten. Wilson and Ferguson fled the
Wilson had at least five different attorneys: (1) Cliff Stark who represented him
in juvenile court at the adult certification hearing; (2) Michael French who represented
him in adult court at the reverse certification hearing; (3) Gregg Graves who was
appointed after French withdrew; (4) David Phillips who represented him at trial and
sentencing; and (5) Kimberly Heinze who represented him on appeal. Phillips was
retained by Wilson; Stark, Graves and Heinze were court-appointed. Wilson says French
was appointed by the court but other evidence in the record indicates he may have been
retained. In particular, one of the reasons French gave for withdrawing was [Wilsons]
family . . . has decided not to honor their financial obligations and has refused to pay for
trial work. (R. Vol. I, Doc. 43-5 at 2.) Our reference to pretrial counsel in this order
and judgment refers to French.
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scene.
Police officer Mark Brisbin responded to the shooting and took a formal statement
from Knightens sister. While she was giving her statement, Wilson, Ferguson and
Kelvin Kelly arrived in a car. Knightens sister observed Wilson and Ferguson get out of
the car, pointed at them and said, Hey, there they are. (Appellants Reply Br., Ex. 1 at
22.) Brisbin, allegedly at gunpoint, handcuffed Wilson and Ferguson and placed them in
a patrol car. Kelly, who did not get out of the car, was also detained.
Detective Alvin McDonald also responded to the scene. He identified Wilson,
Ferguson and Kelly as witnesses; they were transported to the police station where
McDonald interviewed them. Kelly said Ferguson had shot Knighten and Wilson was
with Ferguson at the time of the shooting. Ferguson denied any involvement in the
murder. Wilson initially denied involvement but eventually admitted he was with
Ferguson at the time Knighten was shot. He then said he shot Knighten once and
Ferguson shot Knighten twice. Based on these statements, McDonald no longer
considered Wilson a witness but rather a suspect. He stopped the interview and called
Wilsons mother.
When Wilsons mother came to the police station, McDonald presented both
Wilson and his mother with a form explaining Wilsons rights. It provided:
BEFORE WE ASK YOU ANY QUESTIONS YOU MUST
UNDERSTAND YOU HAVE THE FOLLOWING RIGHTS
1.
2.
Anything you say can and will be used against you in court.
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3.
You have the right to talk to a lawyer before we ask you any
questions and you have the right to have him with you during the
questioning.
4.
If you cannot afford a lawyer and want one, the court will appoint
one for you before you are asked any questions.
5.
6.
You are advised that under Oklahoma law there is a possibility that
you may be certified and tried as an adult for this offense.
(R. Vol. I, Doc. 36-7 at 1.) According to McDonalds testimony, he read these rights to
Wilson and his mother.
The form also contained a WAIVER section stating: I am the parent/guardian
of the above named juvenile. I have read the above rights and have had the opportunity
to ask any questions concerning these rights. (Id.) Under this section, three statements
appeared: (1) I have had the opportunity to confer with the juvenile in private
concerning these rights; (2) I want the juvenile to answer questions or make a statement
at this time; and (3) I do not want the juvenile to answer questions or make a statement
at this time. (Id.) Before each statement is a box. Wilson and his mother checked the
box in front of the second statement and signed the form.
After signing the form, Wilson told McDonald he and Ferguson went to
Knightens house to retrieve Wilsons gun which Knighten had taken from him. The
plan was to first get Knighten outside the apartment. Once Knighten was outside,
Wilsons job was to retrieve the gun. (Appellants Reply Br., Ex. 1 at 33.) If he did
not retrieve the gun, he was to step back, thereby signaling to Ferguson to shoot. [T]he
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plan was to fix it where Mr. Knighten would never walk again, paralyze him if he did
not return the gun. (Id. at 32.) McDonald asked Wilson how he felt about Knighten
being dead; Wilson said he didnt care. (Id. at 34.) When asked why he had earlier
said he shot Knighten, Wilson responded: [T]o take some of the heat off of [my] cousin,
[Ferguson], cause [Ferguson] was going to be going to prison for him for a long time.
(Id. at 44.)
II.
OKLAHOMA LAW
All citations to the Oklahoma statutes are to the 1996 version in effect at the time
of Wilsons offense. See Bowman v. State, 789 P.2d 631, 631 (Okla. Crim. App. 1990)
(It is a well established rule of law that the appropriate criminal penalty is the penalty in
effect at the time the defendant commits the crime.).
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violent or premeditated manner; the nature of the alleged offense; the maturity of the
child and his ability to distinguish right from wrong; the juveniles previous record; the
prospects for adequate protection of the public and the likelihood of rehabilitating the
juvenile in the juvenile system; and whether the offense occurred while the juvenile was
escaping. Id. If the court decides adult certification is warranted, the juvenile proceeding
will be dismissed and an adult criminal proceeding will be commenced against the
juvenile. Id.
In certain circumstances, a juvenile is automatically considered an adult based on
his age and the nature of the crime. Id. 7306-1.1 (A), (B). Relevant here, a 13-year-old
charged with First Degree Murder is required to be considered as an adult; no
certification hearing is required. Id. 7306-1.1(B) (Any person thirteen . . . years of age
who is charged with murder in the first degree shall be considered as an adult.).
However, the juvenile may file a motion for certification as a child (reverse certification)
before the start of the preliminary hearing. Id. 7306-1.1(E). At the conclusion of the
States evidence at the preliminary hearing, the juvenile may offer evidence to support his
reverse certification motion. Id. In deciding the reverse certification motion, the court
must give consideration to the following factors listed in order of importance: (1) whether
the offense was committed in an aggressive, violent, premeditated or willful manner; (2)
whether the offense was against persons or property; (3) the record and past history of the
juvenile; and (4) the prospects for adequate protection of the public if the accused person
is processed through the juvenile system. Id. If the court grants the motion, the charge
will be expunged and the case will proceed in the juvenile division of the district court.
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Id. 7306-1.1(F). This case involves both an adult certification and a reverse
certification proceeding.
III.
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obtained a protective order against him,4 he had been referred to law enforcement for
possessing marijuana and trespassing, and the assistant district attorney (ADA) had stated
he was a suspect in two other homicides; (5) according to Dr. Cooper, who performed a
psychological evaluation on Wilson, there was only a slight chance for adequate
protection of the community should Wilson be placed in a medium or secure facility; and
(6) there were facilities available for Wilsons placement within the juvenile system.
While the last factor weighed in favor of Wilson (i.e., against certification), Judge
Chappelle stated he was most concerned with the nature of the charge, Wilsons lack of
remorse, and the calculated design and planning used to carry out the crime confessed to
by [Wilson]. (R. Vol. I, Doc. 1 at 46.) Judge Chappelles order certifying Wilson for
adult prosecution was immediately appealable, a remedy Wilson did not pursue. See
Okla. Stat. Ann. tit. 10, 7303-4.3(E).
IV.
On June 25, 1998, Wilsons mother sought and obtained an emergency protective
order against Wilson. In her petition for a protective order, she alleged:
My son told me he would kill me if I tried to have him locked up. He was
yelling at me in my face. He raised his hand to hit me. He said he would
have me killed. I suspect he is in a gang, so I take his threats seriously. In
the past, he has beaten me to the ground. He kicked me, hit me with his
fists and tried to strangle me. He did this because I tried to get him to wake
up and go to his juv[enile] court hearing. He has a long juv[enile] record.
(R. Vol. 1, Doc. 1 at 56.)
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State charged Wilson with Accessory to First Degree Murder in adult court. The case
was assigned to District Court Judge Singer. A month later, the State filed an amended
information against Wilson adding First Degree Murder5 to the pending Accessory to
First Degree Murder charge. Wilson filed an application for reverse certification.
On November 4, 1998, Judge Singer held a hearing on the reverse certification
application as well as a preliminary hearing to determine whether there was probable
cause to believe a crime was committed and Wilson committed it. See Okla. Stat. Ann.
tit. 22, 258 (The purpose of the preliminary hearing is to establish probable cause that
a crime was committed and probable cause that the defendant committed the crime.).
Wilson was represented by Michael French at the hearing.
Judge Singer first heard evidence from the State concerning whether there was
probable cause to bind Wilson over on the charges. The State called Knightens sister,
Officer Brisbin and Detective McDonald as witnesses. Relevant here, McDonald first
testified as to the incriminating statements Wilson made to him after Wilson and his
mother had signed the notification and waiver of rights form. He then testified as to the
incriminating statements Wilson had made earlier, when he was only considered a
witness, not a suspect (i.e., before his mother was called and the notification and waiver
of rights form was signed). French objected to the latter testimony under Okla. Stat. Ann.
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tit. 10, 7303-3.1, which, at the time Wilson made the statements, prohibited the
admission of any information gained by the custodial interrogation of a child unless the
interrogation occurred in the presence of a parent/guardian and the child and
parent/guardian were advised of the childs rights. See Okla. Stat. Ann. tit. 10, 73033.1 . Through a series of questions, the State clarified that McDonald did not consider
Wilson to be in custody when he made the initial statements because he was only a
witness and was free to leave.
At the conclusion of McDonalds testimony, Judge Singer asked for argument on
whether there was probable cause to bind Wilson over for trial on the charges. French
responded: First, Your Honor, I have a question as to whether there [are] special
considerations as to what merits the custodialor what defines custodial interrogation as
to a juvenile versus what would constitute custodial interrogation? (Appellants Reply
Br., Ex. 1 at 47.) The court responded:
I cant answer your question. If you have law to present or comments to
make or to present to the Court, I would be glad to entertain it, take it under
advisement. I will take motions to suppress as something that was
requested instanter by you . . . . Im assuming youre going to demur to the
evidence, but go ahead and please make your argument.
(Id.) French said he would demur to the evidence.6 Judge Singer then asked whether he
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had any argument as to whether Wilson was in custody at the time he made the initial
statements. French offered to put his argument in a motion to suppress but the court
pressed him as to the nature of his objection. French said: That . . . once [Wilson] was
brought in a car over [to the police station], that this would have constituted custodial
interrogation and [Wilson] himself was unaware of his liberty to leave the scene at any
point in time. (Id. at 48.) The State argued to the contrary and Judge Singer took
Frenchs demurrer to the evidence as well as the probable cause issue under advisement.
Judge Singer then heard evidence on the reverse certification motion. Wilson
called his mother and grandmother as witnesses. He also introduced Dr. Coopers
psychological report, which was prepared for the juvenile court. Among other things, it
said:
[Wilson had] been referred to juvenile court on two occasions for offenses
related to violence or threats of violence to others. Aside from this,
however, it does not appear that he has exhibited a consistent pattern of
violence to others. He has been able to be managed without major
difficulty . . . .
There are a number of factors that suggest that [Wilson] will require a fairly
intensive treatment effort to ensure positive results. Hes the product of a
somewhat chaotic family system and has been exposed to a certain degree
of violence within his family . . . .
There are several factors that suggest that he may respond favorably to
treatment within the juvenile system. Those include minimal treatment in
juvenile system thus far; he does not have an extensive juvenile record; and
that his chronological age suggests that he would appear to have sufficient
time to . . . appreciate those programs . . . .
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(Id. at 69-70 (quotations omitted).) The State introduced Wilsons juvenile record.
At the conclusion of the hearing, Judge Singer determined the State had
established probable cause as to the Murder in the First Degree charge but not as to the
Accessory to First Degree Murder charge. Therefore, he dismissed the latter. He denied
the application for reverse certification. In doing so, he very seriously [and]
painstakingly considered each of the [statutory factors], as one would be remiss not to
with a 14-year old defendant, 13-year-old at the time of the crime, the seriousness of
what hes facing if hes initiated into the adult system. (Appellants Reply Br., Ex. 1 at
69.) He also referred to Judge Chappelles previous order certifying Wilson as an adult
on the Accessory to First Degree Murder charge, including the ADAs statements
indicating Wilson was a suspect in two other murders. Judge Singer concluded:
Having viewed [Judge Chappelles order] and weighed it against Dr.
Coopers report and having looked at the juvenile profile of this defendant,
I find numerous remarks, notations made by the juvenile workers, social
workers, case workers . . . that [Wilson] doesnt really seem to care about
what goes on, that he doesnt seem to have, what I call, fire in his belly to
get better and make himself a decent human being and show remorse and
show concern and attentiveness toward his behavior . . . .
I think I would be remiss if I didnt in some way include that in my
decision as to whether he would be amenable to rehabilitation. Its a twoway street. You may have the facility to be amenable to rehabilitation, a
lock-down facility for several years of this juveniles life, but the question
then becomes, is he going to take advantage and respond to it? . . . [I]s he
going to be proactive and affirmative to the point where he responds to
treatment? And every indicator from his history shows he wont.
Failing to make arrangements to be timely in his appearance before the
juvenile officers and, additionally, what obviously is not perjured testimony
. . . by [his] mother, a propensity to be violent and make threats that are
very, very unusual and not what I would call consistent with most children
his age, as far as killing her, knocking her down, kicking her.
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Now, taking all that evidence plus the testimony by, I know, a loving and
doting grandmother and motherwhich my heart goes out to youbut
taking that and weighing it with the four factors [under the statute], I feel
compelled and constrained by the laws that this young man needs to stand
trial as an adult.
(Id. at 73-74.) Oklahoma law allows for an immediate appeal from the denial of a reverse
certification order, see Okla. Stat. Ann. tit. 10, 7306-1.1(G) , but Wilson did not appeal.
Five days later, on November 9, 1998, French successfully moved to withdraw as
Wilsons attorney because
[Wilsons] family . . . has decided not to honor their financial obligations
and has refused to pay for trial work. In addition, attorney was not retained
to defend against murder charges, has no experience in the defense of
murder charges and as a result the defendant would be severely prejudiced
as a result of an inexperienced attorney[.]
(R. Vol. 1, Doc. 43-5 at 2.) Gregg Graves was appointed by the court to represent Wilson
but ultimately he retained David Phillips as new counsel and proceeded to trial on July 910, 1999. The jury found Wilson guilty of First Degree Murder and recommended a
sentence of life imprisonment. On August 19, 1999, he was sentenced in accordance
with the jurys recommendation.
Wilson appealed to the Oklahoma Court of Criminal Appeals (OCCA). His
appointed counsel, Kimberly Heinze, argued: (1) the trial court improperly excluded
evidence of Knightens prior violent acts, which would have corroborated Wilsons selfdefense arguments; (2) the trial court erred in failing to instruct on self-defense or defense
of another; (3) there was insufficient evidence to establish Wilson as a principal to the
crime charged; and (4) the cumulative effect of these errors deprived Wilson of a fair
trial. The OCCA affirmed on November 29, 2000.
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V.
On October 12, 2001, Wilson filed a petition for post-conviction relief in state
court. He sought an evidentiary hearing and claimed: (1) ineffective assistance of
appellate counsel based on counsels failure to raise a dead-bang reversible error on
direct appeal and (2) ineffective assistance of counsel at the preliminary and reverse
certification hearing based on counsels failure to, inter alia, file a motion to suppress the
statements he made to law enforcement on the day of the murder (both before and after
the notification and waiver of rights form was signed) and object to Judge Chappelle and
Judge Singers reliance on untrue statements from the ADA that he was a suspect in two
other murders. (R. Vol. 1, Doc. 1 at 31.)
On February 1, 2002, the state trial court denied relief without a hearing. It
concluded any claim already raised on direct appeal was barred from further review
under the doctrine of res judicata and all claims capable of being but not raised on direct
appeal were procedurally barred. As to the ineffective assistance of appellate counsel
claim, the trial court concluded counsel was reasonably competent as she carefully
selected legal issues to be raised on appeal and the fact the OCCA denied relief is not the
test for determining the adequacy of legal representation.
On February 4, 2002, Wilson appealed to the OCCA. The OCCA affirmed on
March 14, 2002, saying:
Except for his claim of ineffective assistance of appellate counsel, the
propositions of error asserted by [Wilson] in his post-conviction application
either were or could have been raised in the direct appeal of his conviction.
All issues not raised in a direct appeal that could have been raised are
waived. Webb v. State, 1991 OK CR 38, 6, 835 P.2d 115. Further, any
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claim that was raised and ruled upon by this Court on direct appeal is res
judicata and may not be the basis of a post-conviction application. Id.
Moreover, those issues may not be the basis of this post-conviction
application, unless [Wilsons] claim of ineffective [assistance of] appellate
counsel provides sufficient reason for not asserting the issues on direct
appeal. 22 O.S. 1991, 1086 . . . . The fact appellate counsel fails to
recognize or raise a claim, regardless of merit, is not and cannot alone be
sufficient to establish ineffective assistance or to preclude enforcement of a
procedural default . . . .
After a review of the record and argument presented . . ., we FIND
[Wilson] has not established appellate counsels performance was deficient
or that the result of his appeal was not reliable and fair.
(R. Vol. 1, Doc. 36-3 at 49-50.)
VI.
On April 25, 2002, Wilson filed a timely 28 U.S.C. 2254 petition for writ of
habeas corpus claiming his counsel at the preliminary and reverse certification hearing
(hereinafter pretrial counsel) was constitutionally ineffective for, inter alia, (1) failing to
challenge statements Wilson made to law enforcement on the day of the murder and (2)
failing to object to Judge Singers reliance on Judge Chappelles adult certification order
because it contained (allegedly)7 untrue statements of the ADA that Wilson was a suspect
in two other homicides.
The district court denied the petition on June 21, 2005. Relevant here, it
concluded the procedural ground relied upon by the OCCA to avoid reaching the merits
of Wilsons ineffective assistance of pretrial counsel claim (i.e., the failure to raise it on
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direct appeal) was an independent and adequate state procedural ground. Since the claim
was procedurally barred, it could be considered only if Wilson showed cause and
prejudice for the default or demonstrated a fundamental miscarriage of justice would
result if his claim was not considered. Wilson did not offer any explanation for his
failure to raise the issue prior to his state court petition for post-conviction relief.
Nevertheless, the district court liberally construed his petition as alleging the ineffective
assistance of his appellate counsel constituted cause for the default. However, since
appellate counsel does not act deficiently in failing to raise a waived claim, the court
concluded appellate counsel had not performed deficiently because Wilson waived any
claim arising at the preliminary and reverse certification hearing by failing to appeal from
the denial of reverse certification. Consequently, the alleged ineffective assistance of
appellate counsel did not constitute cause to overcome the procedural bar.
Wilson successfully sought a certificate of appealability (COA) from this Court.
See Wilson v. Oklahoma, 192 Fed. Appx. 755, 756-57 (10th Cir. 2006) (Wilson I)
(unpublished). On August 17, 2006, we concluded the OCCAs analysis of the
ineffective assistance of appellate counsel claim[t]he fact appellate counsel fails to
recognize or raise a claim, regardless of merit, is not and cannot alone be sufficient to
establish ineffective assistance or to preclude enforcement of a procedural default
deviated from the controlling federal standard. Id. at 757. Therefore, it was not entitled
to deference on habeas review. Id.
We also determined the district courts conclusion that appellate counsel was not
ineffective for failing to raise a waived claim was erroneous:
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assistance of pretrial counsel claim because the claim lacked merit. The district court
also denied Wilsons request for a COA.
Wilson filed a combined request for a COA and an opening brief with this Court.
He claimed he was entitled to a COA on the district courts conclusion that the
ineffective assistance of appellate counsel did not constitute cause to overcome the
procedural bar applicable to his ineffective assistance of pretrial counsel claim. We
granted a COA, ordered additional briefing and granted Wilsons request for oral
argument.
VII.
DISCUSSION
and after he and his mother signed the notification and waiver of rights form. Detective
McDonald testified to these statements (i.e., Wilsons pre-Miranda8 and post-Miranda
statements, respectively) at the preliminary and reverse certification hearing. Wilson
claims pretrial counsel was constitutionally ineffective for failing to move to suppress
these statements.
1.
Pre-Miranda Statements
The district court concluded pretrial counsel was deficient in failing to move to
suppress Wilsons pre-Miranda statements because they were taken outside the presence
of his mother and prior to Wilson and his mother being advised of their constitutional
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rights in violation of Okla. Stat. Ann. tit. 10, 7303-3.1(A).9 However, it concluded that
in light of the other evidence presented at the preliminary hearing, Wilson did not suffer
prejudice as a result of counsels deficient performance. It found significant that at a
motions hearing held approximately two months after the preliminary and reverse
certification hearing, the state court granted Wilsons motion to suppress the pre-Miranda
statements and therefore they were not introduced at trial.
Wilson agrees with the district court that counsel acted deficiently in failing to
move to suppress his pre-Miranda statements.10 He disputes, however, the courts
As we will discuss, this statute requires the statements to have been obtained as a
result of custodial interrogation and defines custodial interrogation as the
questioning of a child while that child is in law enforcement custody or while that child
is being deprived of freedom of action in any significant way by a law enforcement
officer . . . . Okla. Stat. Ann. tit. 10, 7303-3.1(A). The district court did not expressly
determine whether Wilsons pre-Miranda statements were made in response to custodial
interrogation. And the issue is disputed. Detective McDonald testified that at the time
Wilson made these statements, he was a witness and free to leave. But Wilson says he
was handcuffed at the scene, taken into custody at the scene at gunpoint, told at the
scene that [he] was under arrest, and remained handcuffed during interrogation at the
police station. (R. Vol. I, Doc. 43-2 at 3-5.) However, because the State has not
appealed from the district courts determination that reverse certification counsel was
deficient for failing to challenge Wilsons pre-Miranda statements, we need not resolve
the issue.
We also question whether pretrial counsel was deficient in failing to move to
suppress the pre-Miranda statements. The record shows he did object to those statements
under 7303-3.1(A) at the hearing and offered to brief the issue but was foreclosed from
doing so when the judge pressed him for the basis of his argument, which counsel
supplied, and decided the issue without briefing.
10
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prejudice analysis. He claims prejudice because the pre-Miranda statements were used
by Judge Singer to find probable cause and to deny his motion for reverse certification.
We agree the district courts prejudice analysis is flawed. Just because Wilsons
pre-Miranda statements were suppressed at trial does not lessen their possible impact on
Judge Singers reverse certification and probable cause determinations. But the
suppression of the pre-Miranda statements is significant in a slightly different regard. A
jurywithout hearing his incriminating pre-Miranda statementsfound Wilson guilty of
First Degree Murder beyond a reasonable doubt. Therefore, even had pretrial counsel
successfully moved to suppress Wilsons pre-Miranda statements at the preliminary and
reverse certification hearing, it is unlikely Judge Singer would not have found probable
causea significantly lesser standard than proof beyond a reasonable doubtto bind
him over for trial for First Degree Murder. See State v. Smith, 617 P.2d 232, 233 (Okla.
Crim. App. 1980) ([T]he preliminary hearing burden of proof is a lesser one than the
standard for conviction . . . .). That is because the judge, as well as the jury, heard
Wilsons highly incriminating post-Miranda statements, which, as we discuss next, were
properly admitted. Thus, we cannot say Judge Singers probable cause determination
would have been different had the pre-Miranda statements been suppressed; in other
words, the admission of these statements, if error, was harmless error.
The same reasoning does not apply in evaluating the effect the pre-Miranda
1270, 1276 (Okla. Crim. App. 1975) (certification hearing); see also Crisp v. Mayabb,
668 F.2d 1127, 1134 (10th Cir. 1981).
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Post-Miranda Statements
Wilson argues his pretrial counsel was ineffective for failing to move to suppress
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his post-Miranda statements because (1) they were made outside the presence of his
mother in violation of Okla. Stat. Ann. tit. 10, 7303-3.1(A) and (2) there was no valid
waiver of his Miranda rights. The district court rejected both arguments. Wilson and his
mother submitted affidavits on remand saying Wilsons mother was not present during
Wilsons post-Miranda interrogation. The court concluded these affidavits, made more
than eight years after the reverse certification hearing, were directly refuted by the
hearing record which showed Detective McDonald took steps to comply with 73033.1(A) s requirement that Wilsons interrogation take place in the presence of a parent or
guardian and not until after he and his mother were made aware of Wilsons
constitutional rights. (R. Vol. I, Doc. 46 at 25-26.) Indeed, McDonald had them sign a
notification and waiver of rights form prior to obtaining Wilsons statements. The court
determined Wilson and his mother acknowledged they had read the Miranda rights and
had had the opportunity to ask questions concerning those rights. They also checked the
box beside the statement: I want the juvenile to answer the questions or make a
statement at this time. The court concluded:
After considering the circumstances reflected by the record compiled at the
time of the statement and the subsequent hearing, the Court cannot find that
[reverse] certification counsel performed deficiently in failing to file a
motion to suppress statements made by [Wilson] to Detective McDonald
after his mother arrived at the police station and after receiving a Miranda
warning and signing a rights waiver.
(R. Vol. I, Doc. 46 at 26.)
Wilson argues the district courts finding that McDonald took steps to comply
with 7303-3.1(A) is insufficient to demonstrate his mother was present during his post-
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Miranda interrogation as required by that statute. He says the record does not show his
mothers presence for anything other than signing the notification and waiver of rights
form. He points to his and his mothers affidavits on remand which state she was not
present during his post-Miranda interrogation. Wilson also argues the court erred in
determining his waiver was knowingly and voluntarily made. Seeking to exploit a silent
record, Wilson says he did not knowingly or voluntarily waive his rights. He claims the
court failed to consider the totality of the circumstances, instead focusing on the mere
fact he and his mother signed a notification and waiver of rights form.11
a)
Mothers Presence
11
The district court found Wilson had not challenged his pretrial counsels failure
to move to suppress his post-Miranda statements until remand. Wilson says the court is
wrong. He claims he raised his post-Miranda statements in his 2254 petition by citing
to Crisp v. Mayabb, 668 F.2d 1127 (10th Cir. 1981), and challenging his compelled
incrimination. (Appellants Reply Br. at 22.) It is Wilson who is in error. It is clear
that when read as a whole, his reference to compelled incrimination in his 2254
petition refers to his pre-Miranda statements. Nevertheless, because the district court
addressed the issue, we will do the same.
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12
any person under eighteen (18) years of age, except for any person sixteen
(16) or seventeen (17) years of age who is charged with any crime specified
in subsection A of Section 7306-1.1 of [this title], or any person thirteen
(13), fourteen (14) or fifteen (15) years of age who is charged with murder
in the first degree pursuant to subsection B of Section 7306-1.1 of [this
title], or any individual who has been certified as an adult pursuant to
Section 7303-4.3 of [this title] . . . .
Okla. Stat. Ann. tit. 10, 7301-1.3(4). The OCCA has held that 7303-3.1 does not
apply to a juvenile who is arrested for a reverse certification offense because under those
circumstances he is considered an adult. See Harris v. State, 777 P.2d 1359, 1362-63
(Okla. Crim. App. 1989); see also Highshaw v. State, 758 P.2d 336, 340 (Okla. Crim.
App. 1988). It is unclear for what offense Wilson was under arrest, if at all, when he
made the post-Miranda statements. Had he been arrested for First Degree Murder at the
time of the interrogation, he would not have been entitled to 7303-3.1s protections. Id.
We need not resolve the issue because even assuming 7303-3.1 applies, Wilson has not
shown his post-Miranda statements were taken in violation of the statute.
- 26 -
Crim. App. 1976) (same). Statements taken in violation of 7303-3.1(A) are not
admissible against a child at a certification or preliminary hearing. See In re R.L.N., 603
P.2d 1149, 1150 (Okla. Crim. App. 1979) (preliminary hearing); J.T.P., 544 P.2d at 1276
(certification hearing); see also Crisp, 668 F.2d at 1134.
Wilson claims his pretrial counsel was ineffective in failing to move to suppress
his post-Miranda statements under 7303-3.1(A) because his mother was not present
when they were made. In an apparent attempt to create an issue of fact and obtain an
evidentiary hearing on this issue, both he and his mother filed affidavits on remand
saying she was not present during Wilsons post-Miranda interrogation. These post hoc
affidavits appear to be the product of cultivated retrospection. They were made over 8
years after the preliminary and reverse certification hearing and, tellingly, were the first
indication of any claim that Wilsons mother was not present during his post-Miranda
interrogation.13 Those considerations aside, the question is whether the affidavits are
refuted by the record produced at the time of the events and whether they even address
the relevant issue, counsels knowledge.
13
In his petition for state post-conviction relief, his appeal to the OCCA from the
denial of his petition for state post-conviction relief and his federal habeas petition,
Wilson cited to 7303-3.1(A). But his argument was always limited to claiming that
because his statements were taken during custodial interrogation they were
inadmissible under that statute. Wilson also attached an affidavit from his mother to his
petition for state post-conviction relief. In that affidavit, his mother complained she was
on various medications when she was called to the police station and claimed she was not
made aware of her sons rights. She never indicated, however, she was not present
during Wilsons post-Miranda interrogation.
- 27 -
14
See 28 U.S.C. 2254(a) (The Supreme Court, a Justice thereof, a circuit judge,
or a district court shall entertain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or treaties of the United States.)
(emphasis added); see also Estelle v. McGuire, 502 U.S. 62, 67 (1991) ([H]abeas corpus
relief does not lie for errors of state law.).
- 28 -
of the statements.16
Ingeniously, Wilson avoids those obvious problems by claiming ineffective
assistance of counsel. And such a claim, even if based on counsels failure to raise a state
law issue, is cognizable under 225417 because an ineffective assistance of counsel claim
alleges a violation of the federal constitution, specifically, a criminal defendants Sixth
Amendment right to the effective assistance of counsel. See Strickland, 466 U.S. at 68486. But focusing on the nature of the ineffectiveness claim, the question is not whether
Wilsons mother was in fact present but rather whether pretrial counsel acted deficiently.
And that question turns on what counsel knew or reasonably should have known at the
time of the alleged ineffectiveness, i.e., at the preliminary and reverse certification
hearing.
Absent from the affidavits submitted by Wilson and his mother is any fact
suggesting counsel knew she was not present. And while Wilson asserts pretrial counsel
never even asked [him] anything about what happened prior to [his] arrival at the police
16
The Supreme Court has never held that juveniles have a right to the presence of
a parent or guardian during custodial interrogation . . . . See Blankenship v. Estep, 316
Fed. Appx. 758, 760 (10th Cir. 2009) (unpublished). Unpublished decisions are not
binding precedent. 10th Cir. R. 32.1(A). We mention Blankenship as we would any
other non-precedential authority.
17
See, e.g., Bland v. Sirmons, 459 F.3d 999, 1030-31 (10th Cir. 2006) (ineffective
assistance of counsel claim based on counsels failure to request jury instruction on
voluntary intoxication under Oklahoma law); Upchurch v. Bruce, 333 F.3d 1158, 116465 (10th Cir. 2003) (ineffective assistance of counsel claim based on appellate counsels
failure to raise claim that defendants conduct did not satisfy elements of Kansas
kidnapping law).
- 29 -
station, notably absent is any allegation that counsel failed to inquire about or
investigate the circumstances surrounding his post-Miranda statements. (R. Vol. I, Doc.
43-2 at 6.) Since there is no allegation counsel knew or should have known Wilsons
mother was not present during the interrogation (if, in fact, she was not), our analysis is
simplified.
Indeed, the record suggests pretrial counsel believed Wilsons mother was present
during the post-Miranda interrogation. Counsel was obviously aware 7303-3.1(A)
required the presence of a parent or guardian during custodial interrogation as he cited to
it in objecting to McDonalds testimony concerning Wilsons pre-Miranda statements.
Had counsel believed Wilsons mother was not present during the post-Miranda
interrogation, his prior acts strongly suggest he would have objected under the statute.
His silence is telling.
Moreover, the record demonstrates pretrial counsels belief that Wilsons mother
was present was patently reasonable. At the preliminary and reverse certification
hearing, Detective McDonald testified on direct examination as follows:
Q.
A.
Q.
A.
Yes, I did.
Q.
A.
Q.
A.
Yes, we did.
Q.
A.
Q.
A.
Q.
A.
Yes, I do.
Q.
A.
****
****
Q.
A.
Yes.
Q.
A.
Q.
. . . At the top of that sheet, are those the Miranda Rights that were
read to [Wilson] and the mother?
A.
Yes, it is.
Q.
And then what did they execute next after those were read?
A.
They executed their right to speak with the detective regarding this
case.
Q.
A.
Q.
In other words, this one was after the mother had been brought in at
that point?
A.
Thats correct.
18
The State says other evidence shows Wilsons mother was present during the
- 32 -
b)
Waiver of Rights
interrogation. It points to the fact Wilson named his mother as a witness on his witness
trial list and indicated she would testify to being with [Wilson] when he talked to
police. (Appellees Br. at 25 (quotations omitted)). It also alleges that when it asked
Detective McDonald at trial to name the individuals present in the room during Wilsons
post-Miranda interview, McDonald said: Myself, Detective Tom Campbell, [Wilson],
and his mother. (Id. (quotations omitted).) But the trial transcript and witness list are
not included in the appellate record. Nor were they relied upon by the district court in
deciding this issue. Therefore, we do not consider them.
- 33 -
that the Miranda rights have been waived. Colorado v. Spring, 479 U.S. 564, 573 (1987)
(quotations omitted). In the juvenile context:
The totality [of the circumstances] approach permitsindeed, it
mandatesinquiry into all the circumstances surrounding the interrogation.
This includes evaluation of the juveniles age, experience, education,
background, and intelligence, and into whether he has the capacity to
understand the warnings given him, the nature of his Fifth Amendment
rights, and the consequences of waiving those rights.
Fare v. Michael C., 442 U.S. 707, 725 (1979). [T]he greatest care must be taken to
assure [the juveniles uncounseled] admission was voluntary, in the sense not only that it
was not coerced or suggested, but also that it was not the product of ignorance of rights or
of adolescent fantasy, fright or despair. In re Gault, 387 U.S. at 55.
In his patently belated affidavit, filed after our remand, Wilson conveniently
alleged the following:
he was told at the scene he was under arrest;
he did not read the Miranda warnings given to him because he has a
learning disability which makes it difficult for him to read;
he and his mother were not given the opportunity to meet in private and
discuss his rights;
he had no sleep the night before he signed the Miranda waiver;
when he arrived at the police station in handcuffs, it was approximately
2:00 a.m.;
he was kept at the police station all night;
he was never told he was a suspect for First Degree Murder or the
- 34 -
- 35 -
she was never told Wilson was a suspect for First Degree Murder or the
difference in punishment between Wilson being tried as a juvenile and
being tried as an adult;
she had taken her antidepressant medication the night before the
interrogation; and
she was hysterical when she arrived at the police station because she had
been made to believe Wilson had been killed.
Again, we need not concern ourselves with whether these allegations are in fact
true because his direct constitutional claims (i.e., his non-ineffective assistance of counsel
claims) are barred from habeas review. Our focus remains extremely narrow. The
question is not whether his post-Miranda statements should have been suppressed
because he did not validly waive them but rather whether pretrial counsel was
constitutionally ineffective for failing to move to suppress them. Again, we must closely
examine the claims and proofs, looking for evidence as to what pretrial counsel knew or
reasonably should have known at the time of the preliminary and reverse certification
hearing.
The record evidence demonstrates counsel was probably aware or should have
been aware (1) Wilson had been arrested and was possibly handcuffed, (2) Wilson
remained at the police station overnight and perhaps without sleep, (3) Wilson and his
mother did not discuss his rights in private, (4) Wilson was not told he was a suspect for
First Degree Murder or the difference in punishment between being tried as a juvenile
and being tried as an adult (the notification and waiver of rights form did not mention this
- 36 -
information) and (5) Wilson was not expressly told he did not have to answer the polices
questions (because the notification and waiver of rights form did not expressly mention
this right). Counsel also obviously knew Wilson was only 13-years old at the time he
waived his rights.
But nothing in the record suggests pretrial counsel knew or should have known (1)
Wilson could not read the warnings given to him, (2) Wilson and his mother were not
given the opportunity to confer in private, or (3) Wilson and/or his mother did not
understand his rights when they were presented and read to them. Nor is there any record
evidence demonstrating he knew or should have known (1) Wilsons mother only signed
the waiver and notification of rights form because she had been told Wilson had already
admitted to shooting Knighten and she did not know this admission was invalid or (2) she
was hysterical when she arrived at the police station because she had been made to
believe Wilson had been killed. Neither Wilson nor his mother alleges they told counsel
these things or that counsel failed to investigate or otherwise inquire into the
circumstances under which he was interrogated.19 Focusing on what counsel knew or
should have known, we cannot say upon this record that counsel acted deficiently in
failing to move to suppress the post-Miranda statements because Wilsons waiver was
involuntary, unknowing or unintelligent.
19
Again, other than Wilsons claim pretrial counsel never even asked [him]
anything about what happened prior to [his] arrival at the police station, there is no
allegation from either Wilson or his mother that counsel failed to investigate.
- 37 -
The fact Wilson was handcuffed is not determinative. See United States v.
Cardenas, 410 F.3d 287, 295 (5th Cir. 2005) (Such basic police procedures as
restraining a suspect with handcuffs have never been held to constitute sufficient coercion
to warrant suppression.). Nor is the fact he was sleep-deprived. Wilson does not allege
and there is no indication in the record that he was prevented from sleeping by
continuous interrogation or by any other police conduct, a necessary requirement for
involuntariness. See Colorado v. Connelly, 479 U.S. 157, 170 (1986) (The voluntariness
of a waiver [of Miranda rights] has always depended on the absence of police
overreaching, not on free choice in any broader sense of the word.) (emphasis added).
Pretrial counsel was obviously aware Wilson and his mother did not confer in
private concerning his rights as the box preceding that statement was not checked on the
notification and waiver of rights form. But one of the rights identified on the form was
that Wilson could consult a parent or guardian in private concerning his rights before
making a decision. Detective McDonald testified at the preliminary and reverse
certification hearing that he read the rights on the form to Wilson and his mother; no
contrary evidence is presented. While Wilson and his mother now say they did not get a
chance to confer in private, Wilson was informed of his right. Consequently, pretrial
counsel likely believed, and reasonably so, that Wilson could have conferred in private
with his mother but never asked to do so or chose not to.
Wilson and his mother were told there was a possibility he would be certified to
stand trial as an adult for the offense. They complain, however, that he was never told
the offense was First Degree Murder. But obviously the offense related to the killing
- 38 -
of Knighten and Wilsons participation in it. And, of course, it would have been
impossible for McDonald to know at that time for what offense Wilson would be
ultimately charged. In any event, Wilson and his mother were not constitutionally
entitled to such information and Okla. Stat. Ann. tit. 10, 7303-3.1(A) does not require
it. Detective McDonald explained to Wilson and his mother his basic rights, which is all
that is required. United States v. Hernandez, 93 F.3d 1493, 1503 (10th Cir. 1996) (A
defendant need not be advised of every possible consequence of a waiver of the Fifth
Amendment privilege.); see also Spring, 479 U.S. at 574 (There also is no doubt that
Springs waiver of his Fifth Amendment privilege was knowingly and intelligently made:
that is, that Spring understood that he had the right to remain silent and that anything he
said could be used as evidence against him. The Constitution does not require that a
criminal suspect know and understand every possible consequence of a waiver of the
Fifth Amendment privilege.); Okla. Stat. Ann. tit. 10, 7303-3.1(A) (requiring police to
inform parent/guardian and child of childs constitutional and legal rights including the
right to be represented by counsel at every stage of the proceedings, and the right to have
counsel appointed by the court if the parties are without sufficient financial means); In
re V.W.B., 665 P.2d 1222, 1223-24 (Okla. Crim. App. 1983) (concluding juveniles do not
have a constitutional right to be advised they may be tried as adults and to require such
advisement would require arresting officers to offer legal advice requiring a great deal
of background information). The same reasoning applies to Wilson and his mothers
claim they were not informed of the difference in punishment between Wilson being tried
as a juvenile and being tried as an adult, as well as his mothers late-blooming claim she
- 39 -
would not have signed the waiver form and would have requested counsel had the police
advised her Wilsons pre-Miranda statements could not be used against him.
The notification and waiver of rights form did not expressly inform Wilson he did
not have to answer any questions. However, it did inform him he had the right to remain
silent. And it said: If you want to answer questions now without a lawyer present you
may do so. You have the right to stop answering questions at any time. (R. Vol. I, Doc.
43-6.) Both Wilson and his mother signed the form waiving those rights, which were
also read to them. Thus, pretrial counsel could have reasonably believed Wilson (with
parental assistance) was aware he had the right not to answer any questions but chose to
waive that right.20
Wilson was just three weeks shy of his 14th birthday at the time of this incident.
But youth alone is not determinativeit is but one factor to be considered in the totality
of the circumstances. See Fare, 442 U.S. at 725; see also Vance v. Bordenkircher, 692
F.2d 978, 980 (4th Cir. 1982). Indeed, there have been a number of cases in which courts
have found the waiver of Miranda rights by juveniles 14-years-old or younger to be
20
The Supreme Court has granted certiorari to decide (1) whether a suspect must
be expressly advised of his right to counsel during custodial interrogation in order to
comply with Miranda and (2) whether the failure to provide express advice of the right to
the presence of counsel during questioning vitiate Miranda warnings which advise of
both (a) the right to talk to a lawyer before questioning and (b) the right to use the
right to consult a lawyer at anytime during questioning. See Florida v. Powell, 129 S.
Ct. 2827 (2009); Petition for Writ of Certiorari, Powell, 129 S. Ct. 2827 (No. 08-1175).
Here, Wilson and his mother were informed he had the right to talk to a lawyer before the
police asked him any questions and the right to have the lawyer with him during the
questioning. Therefore, Powell will not impact this case.
- 40 -
voluntary, knowing and intelligent. See, e.g., United States v. Miller, 453 F.2d 634, 63536 (4th Cir. 1972) (14-year-olds waiver valid where he was advised of his rights,
provided a printed waiver form which he read silently to himself and signed, and there
was no evidence or allegation that police made promises or threats to induce him into
making the statements); State v. Perez, 591 A.2d 119, 126 (Conn. 1991) (14-year-olds
waiver valid where, inter alia, (1) juvenile demonstrated he had no difficulty with
English language, (2) there was no suggestion of intoxication or mental or emotional
impairment, (3) juveniles initials and signatures on the waiver of rights form and written
confession were clear and legible, (4) the police scrupulously followed proper procedure
in informing him of his rights, and (5) the juveniles mother was present); State v.
Goodwin, 774 N.W.2d 733, 740, 744 (Neb. 2009) (14-year-olds waiver valid where he
was accompanied to the police station by his grandmotherhis legal guardianwho
advised him to cooperate and, prior to any questioning, he acknowledged each of his
legal rights); In re Richard UU., 870 N.Y.S.2d 472, 475-76 (N.Y. App. Div. 2008) (14year-olds waiver valid where both he and his guardian were advised of his Miranda
rights prior to questioning, he unequivocally indicated he understood those rights and was
willing to speak, and he had prior experience with law enforcement); In re Goins, 738
N.E.2d 385, 388-89 (Ohio Ct. App. 1999) (concluding waiver by juvenile who was
eleven and three-quarters years old and had no prior experience with law enforcement
was valid where (1) there was no evidence of intimidation, physical deprivation or
inducement, (2) the length, intensity and frequency of interrogation were reasonable, (3)
there was no evidence juvenile was of insufficient intelligence or mentally impaired, and
- 41 -
(4) the police took great care to ensure he and his mother understood his rights and that
they voluntarily chose to continue the interview without an attorney); Shawn B.N. v.
State, 497 N.W.2d 141, 148-49 (Wis. Ct. App. 1992) (13-year-olds waiver valid even
though taken without the presence of a parent or guardian where (1) interview was
conducted by an unarmed officer in plain clothes, (2) juvenile was not handcuffed, (3)
officer read juvenile his rights, (4) juvenile stated he understood his rights and signed a
waiver form, (5) juvenile was nervous and frightened but responded to the polices
questions in a meaningful manner, (6) no promises or threats were made, and (7) test
results showed juvenile performed at level of average adult).
Parental assistance is a potent factor in the totality of the circumstances evaluation
and pretrial counsel knew Wilsons mother was present when Detective McDonald read
Wilson his rights and obtained his and his mothers waiver. Pretrial counsel could have
reasonably believed that any effect Wilsons youth had on his ability to voluntarily,
knowingly and intelligently waive his rights was ameliorated by the guiding presence of
his mother. See Gallegos v. Colorado, 370 U.S. 49, 54 (1962) (noting 14-year-olds
youth prevented him from knowing the consequences of his admissions but stating [a]
lawyer or an adult relative or friend could have given the petitioner the protection which
his own immaturity could not[;] [a]dult advice would have put him on a less unequal
footing with his interrogators.); see also In re Goins, 738 N.E.2d at 389 (The presence
of appellees mother is a factor that tends to show that the waiver was voluntary.).
While Wilsons mother claims she had taken antidepressant medication the night before
the interrogation and was hysterical when she arrived at the police station because she
- 42 -
was made to believe Wilson had been killed, she makes no claim her medication or
hysteria affected her ability to understand Wilsons rights or the consequences of waiving
them.
Even looking to Wilsons other allegations and proofs, they fail to convince us
pretrial counsel performed deficiently in failing to file a motion to suppress. Officer
McDonald testified he read Wilsons legal rights to Wilson and his mother. The fact
McDonald read these rights to Wilson and his mother mutes Wilsons claim he did not
read the rights because he suffers from a learning disability. While Wilson now claims in
his affidavit he did not understand those rights, he does not allege and there is no
evidence showing pretrial counsel knew or should have been aware of these recently
presented facts. Indeed, while not conclusive, Wilson and his mothers signatures on
the notification and waiver of rights form is strong evidence of the validity of their
waiver and pretrial counsel was certainly reasonable in according it such weight. See
North Carolina v. Butler, 441 U.S. 369, 373 (1979) (while not conclusive, [a]n express
written or oral statement of waiver of the right to remain silent or of the right to counsel
is usually strong proof of the validity of that waiver).
The record, considered globally, refutes Wilsons late-blooming claim that his
waiver of his Miranda rights was not voluntary, knowing and intelligent; more
importantly, that pretrial counsel should have known his waiver was invalid.21 Other
21
- 43 -
the circumstances test, we cannot say pretrial counsel acted deficiently in failing to seek
suppression of the post-Miranda statements.
22
- 44 -
failing to object when Judge Singer read from Judge Chappelles previous order
certifying Wilson as an adult, in particular, the orders reference to the ADA having told
Judge Chappelle that Wilson was a suspect in two other murders.24 It said Judge
23
Wilson does not claim his pre-trial counsel should have moved to suppress his
post-Miranda statements as a fruit of his illegal pre-Miranda statements. Even if he had,
his claim would be without merit because his pre-Miranda statements, although
unwarned and taken without his mother present, were otherwise voluntary. See Oregon
v. Elstad, 470 U.S. 298, 314 (1985) (A subsequent administration of Miranda warnings
to a suspect who has given a voluntary but unwarned statement ordinarily should suffice
to remove the conditions that precluded admission of the earlier statement. In such
circumstances, the finder of fact may reasonably conclude that the suspect made a
rational and intelligent choice whether to waive or invoke his rights.); see also United
States v. Carrizales-Toledo, 454 F.3d 1142, 1149-53 (10th Cir. 2006).
24
Both Wilson and the district court state Judge Singer relied on Judge
Chappelles previous adult certification order. We believe reliance misrepresents what
actually occurred in this case. As we will discuss, the more appropriate characterization
is that Judge Singer read Judge Chappelles order and used it only to show Judge
Chappelle had found certification was proper despite Dr. Coopers report indicating there
were juvenile facilities available for Wilsons placement.
- 45 -
Chappelles order was part of Wilsons file and a judge has the discretion to take judicial
notice of such orders. Moreover, the factors considered by Judge Chappelle at the adult
certification hearing overlapped with those to be considered by Judge Singer at the
reverse certification hearing. Therefore, the court said the evidence relied upon by Judge
Chappelle was relevant to Judge Singers ruling.
Predictably, Wilson disagrees, saying Judge Singer did not take judicial notice of
the ADAs statements and, in any event, they were not properly the subject of judicial
notice. Under Oklahoma law, a judicially noticed adjudicative fact is one which is
capable of accurate and ready determination by resort to sources whose accuracy cannot
be reasonably questioned. The ADAs statements do not pass muster under this rule.
Moreover, a court may only take judicial notice of properly admitted evidence in a prior
proceeding. Here, the ADAs statements were not properly admitted evidence in the
prior adult certification hearing as they were unsubstantiated and not subject to crossexamination. In his brief, Wilson alleges he was never a suspect in two other murders
(but, as explained below, he never made this claim in his habeas petition). Thus,
according to Wilson, the use of the ADAs statements was a clear violation of his due
process rights and counsel should have objected to their consideration.
In his habeas petition, Wilson alleged the ADAs statements were false because he
had NEVER been questioned, charged or tried for ANY OTHER CRIME. (R. Vol. I,
Doc. 1 at 15.) But the fact Wilson was not questioned, charged or tried for two other
homicides does not mean he was not a suspect. Therefore, it is unclear whether the
ADAs statements were in fact false. But they were inadmissible at the adult certification
- 46 -
hearing. See U.S. Const. amend. VI (a criminal defendant has right to confront witnesses
against him); see also Okla. Stat. Ann. tit. 12, 2603 (Every witness shall be required
to declare [by oath or affirmation] before testifying that the witness will testify truthfully
. . . .), 2801 (definition of hearsay), 2802 (hearsay inadmissible).25 Nevertheless, we
conclude pretrial counsel was not deficient in failing to object to Judge Singers referral
to Judge Chappelles certification order which mentioned the ADAs statements.
In determining whether a juvenile should be tried as an adult under Oklahoma law,
a court is required to consider seven factors set forth by statute. See Okla. Stat. Ann. tit.
10, 7303-4.3(B). Those factors (previously noted at page 5 but repeated here for
convenience) are:
1.
2.
25
- 47 -
4.
5.
6.
7.
2.
3.
4.
- 49 -
recognizing there is a presumption under Oklahoma law that any person 13 to 17 years of
age charged with First Degree Murder shall be considered an adult. He then listed the
statutory factors to be considered in deciding whether a juvenile is entitled to reverse
certification. He stated he had very seriously and painstakingly considered each of
the factors. (Appellants Reply Br., Ex. 1 at 69.) He then read from Dr. Coopers report
which he determined was somewhat optimistic as to whether Wilson could be safely
treated in the juvenile system. The report (set forth on page 10 but repeated again for
convenience) stated among other things:
[Wilson had] been referred to juvenile court on two occasions for offenses
related to violence or threats of violence to others. Aside from this,
however, it does not appear that he has exhibited a consistent pattern of
violence to others. He has been able to be managed without major
difficulty . . . .
There are a number of factors that suggest that [Wilson] will require a fairly
intensive treatment effort to ensure positive results. Hes the product of a
somewhat chaotic family system and has been exposed to a certain degree
of violence within his family . . . .
There are several factors that suggest that he may respond favorably to
treatment within the juvenile system. Those include minimal treatment in
juvenile system thus far; he does not have an extensive juvenile record; and
that his chronological age suggests that he would appear to have sufficient
time to . . . appreciate those programs . . . .
(Id. at 69-70 (quotations omitted).). [Appellants Reply Br., Ex. 1 at 68-70]
Judge Singer next read Judge Chappelles order certifying Wilson to stand trial as
an adult on the Accessory to First Degree Murder charge. While he read the entire order,
including the fact the ADA had told Judge Chappelle that Wilson was a suspect in two
other murders, Judge Singer placed particular emphasis on the fact Judge Chappelle had
- 50 -
determined adult certification was proper despite Dr. Coopers report indicating there
were juvenile facilities available for Wilsons placement.
We acknowledge the nature of the ADAs statements to Judge Chappelle had a
strong potential to negatively influence Judge Singers decision on the motion for reverse
certification.26 See cf. Wong v. Belmontes, --U.S.--,130 S. Ct. 383, 391 (2009)
([E]vidence that Belmontes had committed another murder [is] the most powerful
imaginable aggravating evidence.). But it is clear the fact Wilson was a suspect in other
homicides was only a minor factor in Judge Chappelles analysis. And there is no reason
to think Judge Singer would accord it more weight. And, when Judge Singers decision
to deny Wilsons motion for reverse certification is read as a whole, it is readily apparent
this decision was not based on the ADAs statements. Judge Singer merely used Judge
Chappelles order to refute Dr. Coopers report. And Dr. Coopers report was only
significant in considering [t]he prospects for adequate protection of the public if the
accused person is processed through the juvenile systemthe least important factor in
the reverse certification analysis. See Okla. Stat. Ann. tit. 10, 7306-1.1(E). It is also
clear Judge Singers decision to deny reverse certification was based largely on the fact
Wilson had no desire to rehabilitate himself. Not to mention the presumption under
26
- 51 -
Oklahoma law that Wilson should be treated as an adult based on his age and the nature
of the offense.
Given that neither Judge Chappelle nor Judge Singer placed much weight on the
ADAs statements, we cannot fault pretrial counsel for failing to object to their being
mentioned by either judge. Indeed, an objection would have accorded them more
importance than either judge did.
Pretrial counsel was not constitutionally ineffective in failing to object to Judge
Singers reliance on Judge Chappelles adult certification order. Consequently, appellate
counsel was not ineffective for failing to raise an ineffective assistance of counsel claim.
VIII.
CONCLUSION
- 52 -