UNITED STATES of America, Plaintiff-Appellee, v. Dakota Lane WILLISTON, Defendant-Appellant.
No. 15-7080
United States Court of Appeals, Tenth Circuit.
July 5, 2017
862 F.3d 1023
Linda A. Epperley, Assistant United States Attorney (Mark F. Green, United States Attorney, and Gregory Dean Burris, Assistant United States Attorney, with her on the brief), Office of the United States Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee.
Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.
PHILLIPS, Circuit Judge.
The grand jury is a constitutionally mandated body that both protects the rights of defendants and provides a powerful investigative tool for federal law enforcement. A key part of the grand jury’s investigative power is its ability to compel testimony, subject to witnesses’ Fifth Amendment rights against self-incrimination. Grand-jury witnesses have no right to Miranda warnings, nor do they have an absolute right to remain silent—even witnesses implicated in the criminal activities that the grand jury is investigating. United States v. Mandujano, 425 U.S. 564, 579-80, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976) (plurality opinion). Here, the Defendant argues that Miranda should apply to protect grand-jury targets who are confined on unrelated criminal charges. From this, the Defendant argues that the district court erred at trial by not suppressing his grand-jury testimony, because the government failed to provide him Miranda warnings before that testimony. We reject this
I
On June 3, 2014, an FBI agent served a grand-jury subpoena on Dakota Lane Williston in the McCurtain County Jail in Idabel, Oklahoma. Williston was being held in the jail on state charges unrelated to the crime that the grand jury was investigating. The FBI agent also handed Williston a target letter from the United States Attorney’s Office and a blank financial affidavit. The target letter had a heading of “Advice of Rights” and informed Williston that he was the target of a federal grand jury murder investigation. R. vol. 1 at 109-10. The letter also advised Williston that he could “refuse to answer any question if a truthful answer to the question would tend to incriminate you“; that anything Williston did or said “may be used against you by the Grand Jury or in a subsequent legal proceeding“; that Williston could step outside the grand-jury room to consult with retained counsel, if he had any; and that if Williston had not retained counsel “and cannot afford to hire counsel, a financial affidavit is attached.” Id. at 126. The letter stated that the completed financial form could be returned to “the Federal Public Defender’s Office” in Muskogee, Oklahoma. Id. The FBI agent read the target letter verbatim to Williston and reiterated that Williston was the target of the investigation. The government secured an Order for Writ of Habeas Corpus Ad Testificandum for Williston and United States Marshals transported him to the Muskogee County Jail for his grand-jury testimony. Another FBI agent met with Williston before his grand-jury appearance to ask if Williston would be testifying—to avoid bringing Williston in front of the grand jury for the sole purpose of hearing him invoke his Fifth Amendment rights. Williston said that he would be testifying.
On June 11, 2014, Williston appeared before the grand jury. Before the federal prosecutor began asking Williston any questions, he reviewed on the record Williston’s rights with him. First, the prosecutor confirmed that Williston had received and understood the target letter. Then he reviewed the target letter with Williston, informing him that the grand jury was investigating a murder in Indian Country. He advised Williston that he could “refuse to answer any question if the truthful answer to the question would tend to incriminate you.” Supp. R. vol. 5 at 19. He told Williston that anything Williston said could be used against him “by the grand jury or in a subsequent legal proceeding.” Id. The prosecutor then said that if Williston had retained counsel, he could consult with counsel outside the grand-jury room. He added that:
I would also inform you, as I see that you’re in custody on some charges, that you have the right to counsel at no expense to you. We can have that appointed to you at no expense should you feel like you want counsel at any time. And you have the right to remain silent in that regard as well.
Id.1 Williston affirmed that he understood all that information. The prosecutor then
On July 23, 2013, Williston was living in his grandmother’s house in Idabel, a town in southeastern Oklahoma. Earlier that month, two persons had moved in with Williston: Brittany Cockrell, a woman with whom Williston was personally involved, and Brittany’s two-and-a-half-year-old daughter, Payton. Williston told the grand jury that, on the morning of July 23, he woke up as Brittany was preparing to go to work. When Brittany started to leave the house soon before 10 a.m., Payton attempted to follow her mother out the door. Williston told Brittany to leave Payton at home with him that day, rather than take Payton to day care, so that Brittany would have a reason to come home sooner.
After Brittany had left for work, Williston told the child, who was crying, to go lie down on her bed, which she did. Williston went back to sleep. When he awoke again, he stripped the sheets from his bed and from Payton’s bed, took them to the laundry room along with towels that he said Payton had thrown up on during the night, retrieved the house’s landline phone to see if anyone had called, and then lay down on his bed. When Williston stripped the sheets from Payton’s bed, he told the grand jury that Payton woke up for a moment, said “nite-nite,” and went back to sleep. R. vol. 2 at 1533.
When Williston got out of bed again soon afterward, he began preparing to take a shower and “hollered at Payton a couple of times.” Id. at 1496. When Payton didn’t respond, Williston said that he shook her a few times to try to wake her up, but that she still didn’t respond. Williston told the grand jury that he then “started freaking out,” “patted” Payton on the cheek, and accidentally “busted her lip,” causing blood to trickle across her teeth. Id. at 1497-98. Apart from a bruise on Payton’s face that he said was accidentally caused by Brittany when brushing Payton’s hair the night before, Williston said that the busted lip was the only injury he could see on Payton. Williston testified that he then put Payton on the floor and ran to get his grandmother, who had entered the house soon before.
At 12:10:59 p.m., Williston called Brittany. He asked only when Brittany would be coming home. At 12:11:48 p.m., Williston called Brittany again and told her that he couldn’t wake up Payton. The woman that Brittany was caring for as a home-health aid overheard the conversation and immediately called the police. At 12:16 p.m., Williston called 911. Emergency-services personnel arrived at 12:22 p.m. and took Payton to the hospital, where she was pronounced dead. Williston approached one of the responding sheriff’s deputies, whom he knew, and said, “... what do I do? Tell me what do I do.” Id. at 510. He also told the deputy that he had made Payton lie down, and then started shaking and slapping her when she wouldn’t wake up. Williston told the grand jury that, from the time Brittany left the house until he
Later trial testimony from emergency-services personnel and other medical witnesses painted a far more severe picture of Payton’s injuries than Williston had described. Emergency-services personnel noticed dried blood and several bruises on her face. At the hospital emergency room, medical personnel observed extensive, visible injuries to Payton’s neck, head, face, chest, mid-back, and other areas.
A search of the house revealed blood containing Payton’s DNA in multiple locations in Williston’s room, including a blood spatter on the wall, as well as on towels in the laundry room. The pathologist at the medical examiner’s office ruled Payton’s death a homicide caused by blunt force injuries to the head and torso, documenting both serious head injuries and massive internal injuries, either of which would have been enough to cause Payton’s death independently. Payton suffered the majority of her injuries within a few days of her death. Payton’s abdominal wall—which encloses the intestines—was also bruised, which a child-abuse expert attributed to especially severe trauma. The expert also testified that her medical diagnosis of the cause of Payton’s death was severe child abuse.
On December 19, 2014, six months after Williston’s testimony, the grand jury indicted Williston for Payton’s murder. Williston filed a pretrial motion to suppress his grand-jury testimony. A magistrate judge recommended the denial of the motion, and the district court adopted the recommendation and denied the motion. After a seven-day trial, during which an FBI agent read portions of the transcript of Williston’s grand-jury testimony into the record, a jury convicted Williston of first-degree murder in Indian Country committed during the perpetration of child abuse, in violation of
II
Williston argues that the government violated his Fifth Amendment rights by not providing him a Miranda warning before his grand-jury testimony. Williston acknowledges that the Supreme Court held in Mandujano that the full warnings of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)—including the warning that a defendant has an absolute right to remain silent3—required
In reviewing a motion-to-suppress ruling based on the applicability of Miranda, we review de novo the ultimate question of whether Miranda applies. United States v. Jones, 523 F.3d 1235, 1239 (10th Cir. 2008). But we accept the district court’s factual findings unless they are clearly erroneous, and we view the evidence in the light most favorable to the party that prevailed at the district court—here, the government. Id.
“The grand jury is an integral part of our constitutional heritage which was brought to this country with the common law.” Mandujano, 425 U.S. at 571; see
But the Fifth Amendment does set a limit on the grand jury’s investigative mandate. “No person ... shall be compelled in any criminal case to be a witness against himself....”
But Williston wants something more. He wants us to require the prosecutor to have warned him, per Miranda, that he had “a right to remain silent.” 384 U.S. at 444. The two warnings have similarities, but their legal and practical consequences vastly differ. “Probing questions to all types of witnesses is the stuff that grand jury investigations are made of; the grand jury’s mission is, after all, to determine whether to make a presentment or return an indictment.” Mandujano, 425 U.S. at 573. Not all such witnesses will be upstanding citizens. “It is in keeping with the grand jury’s historic function as a shield against arbitrary accusations to call before it persons suspected of criminal activity, so that the investigation can be complete.” Id. Many of those persons, especially those “able to illuminate the shadowy precincts of corruption and crime,” id., will likely be in custody because of other offenses. The warning against self-incrimination, which Williston received, allows grand juries to do their essential investigative work while still notifying the person being questioned of his Fifth Amendment rights.
A full Miranda warning, on the other hand, would destroy a key part of the grand jury’s investigative power. Witnesses who happen to be in custody for unrelated reasons could refuse to answer any grand-jury questions, whether about themselves or other criminal activities. This absolute right to remain silent, for the witnesses often best positioned to offer valuable information, would hobble the grand jury’s ability to get to the bottom of crimes, both to prosecute the guilty and protect the innocent.
Furthermore, a full-Miranda-warning requirement would run counter to the Supreme Court’s direction that grand-jury witnesses are not in custody while testifying, and that grand-jury questioning is not interrogation. The Mandujano plurality found that Miranda “simply did not perceive judicial inquiries and custodial interrogation as equivalents.” Id. at 579. Questioning in a grand-jury room does not implicate the types of coercion that Miranda sought to remedy. Id. at 580.
Williston’s sole hope, then, depends upon his already having been in unrelated custody at the time when he was brought in for questioning. But that circumstance does not warrant a departure from Mandujano’s holding. Even though Williston said that he wanted to tell the grand jury his story, his appearance before the grand jury was technically involuntary—a subpoena mandated his presence. But subpoenas are routine for grand-jury witnesses, whether in custody or not. So when Williston argues that the grand-jury room was a hostile environment based on how the government “ensured Williston’s presence ... and all but guaranteed his testimony,” he is arguing against the grand-jury system itself, not any facts specific to his situation. Appellant Br. at 21.
Nor do we conclude that the specific restrictions Williston was subjected to in this case—his wearing handcuffs and shackles and his being escorted by federal marshals—changed his grand-jury questioning into custodial interrogation. In Howes v. Fields, 565 U.S. 499, 132 S.Ct. 1181, 182 L.Ed.2d 17 (2012), the Supreme Court found that law-enforcement officers questioning an inmate in a private room inside a prison does not automatically amount to custodial interrogation under Miranda. The facts of Howes differ from those here—in Howes, the prisoner was questioned by officers in a prison confer-
Neither of the cases Williston cites as support for his argument that grand-jury witnesses in his position are entitled to full Miranda warnings actually help him. The first, Stanley v. United States, 245 F.2d 427, 434 (6th Cir. 1957), was decided nine years before Miranda, and so could hardly have been referring to Miranda warnings when it discussed the protections that should be afforded “to a witness who is virtually in the position of a defendant.” In fact, the second case that Williston cites, United States v. Fromin, 540 F.2d 846, 848-49 (6th Cir. 1976), makes that clear. Fromin applied Stanley’s rule that putative defendants in front of a grand jury should receive the protections afforded actual defendants—but noted that the protection at issue was a warning about a right not to self-incriminate (which Williston received), not the broader Miranda right to remain completely silent (which he did not). Id. The Sixth Circuit noted explicitly that “[h]ere we are not concerned with Miranda warnings.” Id. at 849. And in Mandujano, the Supreme Court overruled a Fifth Circuit opinion that had approvingly cited Stanley and other Sixth Circuit cases that Williston relies on as supporting the rule that he now seeks. See United States v. Mandujano, 496 F.2d 1050, 1054 (5th Cir. 1974), overruled by Mandujano, 425 U.S. at 584. In other words, either the Sixth Circuit never established the expansive Miranda rule that Williston wants, or it did and the Supreme Court rejected it.
Grand juries have a duty to question a range of witnesses, including some involved in criminal activities. “The Court has never ignored this reality of law enforcement.” Mandujano, 425 U.S. at 573. We will not alter course and endorse an “extravagant expansion” of Miranda, id. at 580, simply because a witness and target is in custody for an unrelated reason.5 Williston was not entitled to a Miranda warning before his grand-jury questioning, and we affirm the denial of his motion to suppress.
III
Williston’s Sixth Amendment argument for suppression of his testimony—that he was required to have a lawyer at the time of his grand-jury appearance—hinges on his alleged status as a de facto defendant at that time, even though he had
And for good reason: grand juries are investigative, not adversarial, bodies. See Mandujano, 425 U.S. at 571-72. Though Williston was labeled as the target of the investigation, part of the reason the grand jury demanded his presence was to ascertain whether that target status was warranted and whether adversarial proceedings should be initiated—in other words, to give Williston the chance to “tell the grand jury [his] story.” Supp. R. vol. 5 at 20. None of the circumstances that Williston describes—his young age, his limited education, a possibly confusing colloquy by the grand-jury prosecutor about the right to counsel—alter the rule that the Sixth Amendment right to counsel attaches only when adversarial proceedings commence. And the Sixth Amendment right to counsel is offense-specific, so Williston’s detention on an unrelated state charge did not trigger a right to counsel when he was questioned by a federal grand jury.6 See Toles, 297 F.3d at 965 (“The Sixth Amendment right to counsel ... is offense-specific and does not prevent law enforcement from questioning a defendant about unrelated or uncharged criminal activity.“). Williston’s Sixth Amendment rights were not violated, and we affirm the denial of his motion to suppress.
IV
Before Williston’s trial, the government filed a
Williston filed a Motion in Limine, asking the district court to exclude any mention of his “disciplining or being mean to
At trial, the government called Hamilton and Mejardo to testify. The district court overruled defense objections based on
Williston now argues that the district court erred in allowing that testimony because it showed Williston’s bad character and propensity to act in a certain way, rather than his motive. The acts that Hamilton and Mejardo testified to, Williston argues, were not crimes under Oklahoma law and were not similar enough to the acts that caused Payton’s death to justify admission. We review a district court’s 404(b) evidentiary rulings for abuse of discretion. United States v. Moran, 503 F.3d 1135, 1143 (10th Cir. 2007). So long as a district court’s 404(b) ruling is within the bounds of permissible choice given the circumstances, and is not arbitrary, capricious, or whimsical, we will affirm. Id.
To admit 404(b) evidence, a district court must find that the evidence is being offered for a proper purpose, that the evidence is relevant to that purpose, and that—under Rule 403—the probative value of the evidence is not substantially outweighed by the potential for unfair prejudice. Huddleston v. United States, 485 U.S. 681, 691, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). And when asked to do so, the district court should instruct the jury to consider the 404(b) evidence for only the specific, proper purpose for which it was admitted. Id. at 691-92. Rule 404(b) evidence can be admissible “even though it has ‘the potential impermissible side effect of allowing the jury to infer criminal propensity.’ ... That is, such evidence may be admissible under Rule 404(b) as long as it tends to prove something other than criminal propensity.” Moran, 503 F.3d at 1145 (quoting United States v. Cherry, 433 F.3d 698, 701 n.3 (10th Cir. 2005)). We have held that Rule 404(b) is a rule of inclusion, and we regularly affirm the admission of other-acts evidence unless it tends to prove only a criminal propensity. United States v. Watson, 766 F.3d 1219, 1235 (10th Cir. 2014).
The testimony of Hamilton and Mejardo did tend to prove something other than criminal propensity: motive. In United States v. Mills, 82 F.3d 427 (10th Cir. 1996) (unpublished table decision), a defendant was charged with child abuse. He objected to the admission of photographs that showed past bruising of the child victim. Id. at *2. We concluded that the dis-
Evidence of Williston’s violent acts against others may come closer to the impermissible-purpose line. The district court thought as much, which is why it excluded evidence of Williston’s physical violence toward Brittany and another woman with whom he was involved.7 But a defendant’s history of physically striking a particular child in anger could show the resentment and anger that would help a jury comprehend the “reasons” a man would beat to death the defenseless child of his romantic partner.8 Thus, the district court acted within its discretion in admitting the testimony of Hamilton and Mejardo to prove motive.
The district court also acted within its discretion in determining under Rule 403 that this testimony’s probative value was not substantially outweighed by the danger of any unfair prejudice. Here, the probative value was substantial: establishing a possible motive for why Williston would commit such a heinous crime. And finally, the district court did issue a limiting instruction to the jury instructing it to consider the testimony only for the purpose of motive.
Williston’s attempt to draw an analogy to our exclusion of 404(b) evidence in United States v. Edwards, 540 F.3d 1156 (10th Cir. 2008) avails him nothing. In Edwards, we found that evidence of the defendant’s prior possession of personal-use amounts of drugs was inadmissible under 404(b) to help prove his distribution of drugs, given the dissimilar nature between possessing and distributing drugs and the government’s vague, overly broad justifications for the evidence. Id. at 1163-64. Williston argues that the 404(b) testimony against him was analogous: his “acts of discipline or rough treatment of Payton” were too dissimilar to “the extreme acts of abuse that led to Payton’s death” to justify admission. Appellant Br. at 34.
We disagree. In Edwards, we took exception to the government’s under-explained, blanket assertion that drug-use evidence was permissible to establish a wide range of 404(b) purposes—including some not in dispute—in a trial for drug distribution. 540 F.3d at 1163-64. But the distance between using drugs and distributing them is greater than the distance between striking a particular child in anger and striking that same child in anger causing death. And factual similarities aside, the primary distinction from Edwards is that here, the government’s evidence was restricted to one narrow purpose—motive—that the disputed issue of the identity of the murderer made a relevant trial issue.9 The district court did not abuse its discretion in admitting the testimony of Hamilton and Mejardo as to Williston’s other acts toward Payton.
V
On the day of Payton’s murder, investigators from Oklahoma, the Choctaw Nation, and the FBI interviewed Williston at the Idabel police station after reading him his Miranda rights. Before trial, the government gave the district court and the defense a videotape of the interview, along with timestamps of the segments that it intended to introduce at trial. From the interview’s roughly 90 minutes, the government sought to introduce about 24 minutes, in segments varying from as long as several minutes to as brief as seven seconds. The defense made no pretrial objections.
During the trial, Williston’s counsel objected to the introduction of the video segments that the government had selected and asked that additional segments be admitted. The additional segments featured Williston telling investigators that he had seen some blood coming out of Payton’s mouth, that he believed child abuse to be wrong and didn’t like to see children hurt, and that he was hit as a child and wouldn’t hit his own children, whom he spoke about “glowingly.” R. vol. 2 at 1270. The district court offered to allow the entire interrogation video to be played for the jury, but defense counsel declined because he said that the full video included prejudicial statements. The district court overruled Williston’s objection to the government-edited videotape of the interrogation and the jury saw only that version.
During cross-examination of an FBI agent who helped conduct the videotaped, voluntary interview of Williston on the day of the murder, defense counsel tried, with limited success, to elicit answers about parts of the video that had not been admitted into evidence. Defense counsel, over government objection, was able to ask whether the agent remembered Williston crying when he talked about the ambulance arriving to take away Payton. When the agent said he couldn’t remember, defense counsel, again over government objection, was able to ask him: “So if I were to stand here and tell you in open court in front of this jury that my client cried at that portion [of the videotape], do you have any reason to doubt that?” Id. at
During defense counsel’s closing argument, counsel referenced the interrogation video and noted that “there were portions that I had to drag out of [the FBI agent] that aren’t on the recording. Do you remember that, folks? Please remember that.” Id. at 1671. He then stated that Williston “was crying in grief over the death of Payton Cockrell and what had happened and how he found her.” Id. at 1672. Counsel added that Williston’s crying was a “crucial time when that young man shows sorrow, when he shows pain and suffering and sadness” that had been “taken out” of the video. Id. He concluded that part of his argument by asking the jury: “Is it fair?” Id. In the government’s rebuttal closing argument, the prosecutor argued that Williston’s reactions during his interview were unnatural. He stated: “Look how calm, cool and collected he was in that video that you watched.... How upset did he appear in that video ...? There was no showing of grief over that baby.” Id. at 1707-08. During the jury’s deliberations, the only piece of evidence it asked to review was the government-excerpted interrogation videotape.
Williston argues that either the government’s excerpted version of the interrogation video should not have been admitted, or that his preferred segments of the video should also have been admitted. By allowing in only the government-excerpted video, Williston argues, the district court violated
The rule of completeness, which began as a common-law rule and is now partially codified in Rule 106, does not give an interview declarant a general right to introduce selected statements to try to counter the statements in the proponent’s offered segment.
Nor is there a violation of the Sixth Amendment’s Confrontation Clause when a defendant is prevented from using his own inadmissible hearsay statements to cross-examine a witness, because such a maneuver would amount to “an end-run around the adversarial process.” United States v. Larsen, 175 Fed.Appx. 236, 242 (10th Cir. 2006) (unpublished) (quoting United States v. McDaniel, 398 F.3d 540, 545 (6th Cir. 2005)); see also United States v. Ford, 761 F.3d 641, 651 (6th Cir. 2014) (“Because the statements that [the defendant] attempted to introduce were hearsay not within any exception, the district court did not abuse its discretion by limiting the scope of [the] cross-examination.“).
We conclude that the district court acted within its discretion in ruling that the segments of the interrogation video that Williston sought to admit into evidence were impermissible hearsay statements unnecessary to prevent the jury from being misled. Williston argues that the segments he sought to admit would have provided “a more complete picture of what happened” and shined a different light on his “capability of inflicting the injuries.” Appellant Br. at 38. This approach does not satisfy Rule 106’s requirement that Williston offer the additional statements to clarify or explain misleading government evidence.10
In sum, we see nothing supporting Williston’s view that the government’s depiction of the evidence was “one-sided, distorted, and unfair,” Appellant Br. at 41, and so nothing that would inarguably necessitate the admission of Williston’s hearsay statements, either directly or through cross-examination. Absent such necessity, the district court acted within its proper discretion in finding that Williston’s requests were not backed by the rule of completeness or the Confrontation Clause, but were instead attempted “end-run[s] around the adversarial process.”11 Larsen, 175 Fed.Appx. at 242 (quoting McDaniel, 398 F.3d at 545). The district court acted within its proper discretion in excluding both Williston’s preferred video excerpts and the FBI agent’s testimony on them.
VI
Williston was eighteen-years old when he murdered Payton Cockrell. In Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012), the Supreme Court held that any sentencing scheme that mandates a life-in-prison-without-parole sentence for an offender who is under the age of eighteen when he commits his crimes violates the Eighth Amendment’s prohibition of punishments that are cruel and unusual. Williston admits that, because he was eighteen when he murdered Payton, Miller does not apply to him. But he urges us to expand the holding of Miller to offenders such as himself, who are “just over age 18” at the time of their crimes. Appellant Br. at 43. The rationales for treating juvenile offenders differently from adult offenders apply equally well to the treatment of offenders who were very recently juveniles, he argues. Thus, he asks us to apply those rationales to his case and find the statute that mandates his life-without-parole sentence unconstitutional as applied to him.
We review de novo constitutional challenges to statutes, United States v. Price, 265 F.3d 1097, 1106 (10th Cir. 2001), and criminal sentences, United States v. Eaton, 260 F.3d 1232, 1237 (10th Cir. 2001). The Supreme Court’s decision to separate juvenile and adult offenders using the crude, but practicable, tool of an age cutoff, as opposed to a more painstaking case-by-case analysis, necessitates some element of arbitrariness in Eighth Amendment jurisprudence in this area. But such is the law. We can offer no better comment to Williston’s argument than that made by the district court at the sentencing hearing: “If the Miller ruling is to be expanded, it is the province of the Supreme Court to do so.” R. vol. 2 at 256.
CONCLUSION
For the reasons stated, we affirm Williston’s conviction and sentence for the murder of Payton Cockrell.