Tice v. Johnson
2011 U.S. App. LEXIS 8012
| 4th Cir. | 2011Background
- Derek Tice was twice convicted in Norfolk for rape and murder of Michelle Bosko; Ballard later confessed to the crimes.
- DNA evidence at Bosko’s scene matched Ballard, not Tice or the Norfolk Four co-defendants.
- Tice’s first trial (2000) ended with conviction overturned for improper jury instructions; retrial in 2003 upheld convictions.
- Tice signed a lengthy confession detailing the group’s involvement, which defense argued was false and coerced.
- Ballard later testified at retrial supporting Ballard as sole perpetrator; Tice sought postconviction relief arguing ineffective assistance for failing to suppress the confession.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was counsel deficient for not moving to suppress the confession? | Tice | Johnson | Yes; deficiency shown |
| Would suppression of the confession have changed the trial result? | Tice | Johnson | Yes; prejudice established |
| Should the court apply look-through AEDPA deference to the state court's Strickland ruling? | Tice | Johnson | Court conducted independent review; look-through not required |
| Did Dick’s testimony and other evidence suffice to convict absent the confession? | Tice | Johnson | No; without confession, reasonable doubt raised |
| What is the proper standard for invoking a suspect’s right to silence and its effect on interrogation? | Tice | Johnson | Tice’s invocation was clear; interrogation not scrupulously honored |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance)
- Michigan v. Mosley, 423 U.S. 96 (U.S. 1975) (interrupting interrogation after invocation required)
- Davis v. United States, 512 U.S. 452 (U.S. 1994) (invocation of right to counsel requires clarity for Fifth Amendment invocations)
- Burket v. Angelone, 208 F.3d 172 (4th Cir. 2000) (clarity of invocation; equivocal statements insufficient)
- Weeks v. Commonwealth, 248 Va. 460, 450 S.E.2d 379 (Va. 1994) (Virginia invocation standards for silence)
- Ylst v. Nunnemaker, 501 U.S. 797 (U.S. 1991) (look-through for state-law procedural bars)
- Cullen v. Pinholster, 563 U.S. __ (S. Ct. 2011) (AEDPA review limited to record before state court)
- Strickland v. Washington (additional cites), 466 U.S. 668 (U.S. 1984) (deference to counsel's strategic choices)