Wake Forest Law Review

By Blake Stafford

On February 9, 2016, the Fourth Circuit issued its published opinion in Grueninger v. Dir., Va. Dep’t of Corr., a criminal case reversing the dismissal of a prisoner’s federal habeas petition.  In this case, Eric Adam Grueninger was convicted of sexual abuse and possession of child pornography.  His conviction for sexual abuse rested largely on confessions he made to police in an interview that occurred after he was read his Miranda rights and after he requested an attorney.  Prior to trial, Grueninger’s attorney did not move to suppress this confession under Edwards v. Arizona.  Grueninger argued on state collateral review that this constituted ineffective assistance of counsel under Strickland v. Washington.  After being denied habeas relief by state courts and the federal district court, the Fourth Circuit reversed in part, holding that had Grueninger’s statements been suppressed, there is a reasonable probability that the outcome of the trial would have been different as to the sexual abuse charges.

Facts & Procedural History

Grueninger was arrested in 2009 for sexually abusing his daughter.  During his first interview with a police investigator, Grueninger was read his Miranda rights and responded, “These are felonies, I need an [a]ttorney.”  The investigator stopped questioning immediately.  That same day, police searched his home and found three thumb drives with videos of child pornography.  Three days later, police issued Grueninger a new arrest warrant with additional child pornography charges, and the investigator interviewed Grueninger again after reading him his Miranda rights a second time (and again, with no lawyer present).  This time, Grueninger answered the police investigator’s questions and admitted to, inter alia, performing oral sex on his daughter and ejaculating on her.  Grueninger was indicted by a grand jury for ten counts of sexual abuse charges of varying degrees as well as ten counts of child pornography charges (nine were possession, one was distribution).  A bench trial was held.

Local rules required that a motion to suppress be filed in writing before trial.  Grueninger’s attorney did not file a motion to suppress Grueninger’s confession.  However, on the first day of trial, his attorney did object under Edwards v. Arizona.  The trial court overruled the objection due to its belatedness.  The prosecutor then elicited testimony from the police investigator regarding Grueninger’s inculpatory statements.  At the close of trial, the court noted the importance of the investigator’s testimony in its decision, which was a conviction on all counts.  Grueninger was sentenced to a total term of 235 years, with all but 88 suspended.

Grueninger appealed his convictions, arguing that the evidence was insufficient to sustain them.  The Court of Appeals of Virginia affirmed, and the Supreme Court of Virginia denied Grueninger’s petition for appeal.  Grueninger then filed a pro se habeas petition in state court before the same judge who had presided over his trial.  He argued that the admission of his uncounseled confession was unconstitutional under Edwards v. Arizona and that his attorney’s failure to move to suppress the confession on those grounds warranted ineffective assistance of counsel.  The state court denied his relief, holding that his statements to the investigator had been “voluntary” rather than the product of “interrogation,” which is required for Edwards suppression.  Grueninger appealed to the Supreme Court of Virginia, which summarily found that there was no reversible error.  Grueninger filed a federal habeas petition under 28 U.S.C. § 2254 arguing the same ineffective assistance of counsel error.  The district court agreed with the state court and held that an Edwards motion to suppress would have been “baseless”; thus, the resulting exclusion of Grueninger’s confession would not have led to a different outcome at trial.  Grueninger appealed to the Fourth Circuit.

Preliminary Issue: Review of State Supreme Court’s Summary Order

As a preliminary matter, the Court addressed the appropriate standard for evaluating the state court’s “reasoned decision-making” for the purposes of federal habeas review under § 2254(d).  As noted above, the state supreme court summarily found there was no reversible error.  The Commonwealth argued that Harrington v. Richter applied, which held that a state supreme court judgment may be disturbed under § 2254(d) only if there is “no reasonable basis for the state court to deny relief,” a standard that requires the petitioner to show that any hypothetical ground for state supreme court denial would be objectively unreasonable.  However, the Fourth Circuit distinguished Richter, which involved a habeas petition that was presented directly to the state supreme court as an original petition and then denied by that court in a summary order.  Thus, the Court held that Richter is limited to cases where a state court’s decision is unaccompanied by an explanation by a lower court.  Instead, Ylst v. Nunnemaker is the appropriate framework, which requires a federal habeas court to “look through” the unexplained affirmance to examine the “last reasoned decision” on the claim, assuming that the summary appellate decision rests on the same ground.

Analysis

There are two primary analyses that governed this case—the substantive suppression of Grueninger’s uncounseled confession and the corresponding ineffective assistance of counsel claim.

Suppression of Uncounseled Confessions.  In Edwards v. Arizona, the Supreme Court held that once a suspect invokes his right to counsel under Miranda, he is “not subject to further interrogation” by the police, unless the suspect himself initiates renewed communication with the police.  If the police do interrogate a suspect after he asserts his right to counsel, any statements elicited are per se inadmissible, even if the suspect is again advised of his Miranda rights.  For an Edwards violation, a petitioner must show (1) that he clearly and “unambiguously” invoked his right to counsel and (2) that the police subsequently “interrogated” him.

In this case, the Fourth Circuit found that Grueninger’s claim satisfied both elements.  First, he clearly and “unambiguously” invoked his right to counsel.  Grueninger, in response to his first Miranda warning, said, “These are felonies, I need an [a]ttorney.”  While merely mentioning an attorney is not enough, Grueninger’s statement was unequivocal and unambiguous such that a “reasonable police officer in the circumstances” would understand the statement to be a request for an attorney.  This is bolstered by the fact that the police investigator did in fact stop asking questions in the interview in which Grueninger requested an attorney.

Second, Grueninger was subsequently “interrogated” by the police.  The state court denied relief on this ground, holding that Grueninger’s statements to the investigator had been “voluntary” rather than the product of “interrogation.”  The Fourth Circuit disagreed with—and the Commonwealth did not defend—this determination, finding that it was objectively unreasonable under § 2254(d).  The asking of questions about the substance of a case constitutes “interrogation” for Edwards purposes.  Here, when Grueninger was visited in prison, he was questioned by the police.  The Court found no room for doubt on this point.  These questions constituted “express questioning” that squarely qualified as an “interrogation.”

Ineffective Assistance of Counsel.  The framework in Strickland v. Washington governs claims of ineffective assistance of counsel.  There are two prongs to this framework.  First, the petitioner must show that his lawyer rendered constitutionally deficient performance, meaning that “the identified acts or omissions were outside the wide range of professionally competent assistance.”  For a failure to file a motion to suppress, it is enough to call into question counsel’s performance that an unfiled motion would have had “some substance.”  Second, the petitioner must show prejudice resulting from counsel’s deficiencies, which requires “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  For a failure to file a motion to suppress, a petitioner must show both (1) that the motion was meritorious and likely would have been granted, and (2) a reasonable probability that granting the motion would have affected the outcome of his trial.

In this case, both prongs were satisfied for the sexual abuse charges.  First, the court held that the attorney’s performance was deficient, as an Edwards motion to suppress would have had “some substance” as described above.  Second, the court held that this failure produced sufficient prejudice to warrant ineffective assistance of counsel.  For the same reasons as the deficiency prong, the court held that the motion would have been meritorious and likely granted but for counsel’s deficient performance.  To complete the prejudice showing, the court evaluated whether there was a “reasonable probability that granting the motion would have affected the outcome of the trial.”  For the sexual abuse charges, the court found that the evidence independent of Grueninger’s confession was not so overwhelming such that there was no reasonable probability of a different outcome.  None of the other witnesses could testify directly as to Grueninger’s sexual abuse, and the confession relayed by the police investigator weighed heavily in the court’s analysis.  However, for the child pornography charges, the court concluded that Grueninger’s confession was of limited relevance in his conviction.

Disposition

With respect to his sexual abuse convictions, the Fourth Circuit reversed the district court, holding that Grueninger demonstrated ineffective assistance of counsel under both the deficient performance and prejudice prong.  Thus, the case was remanded with instructions to issue a writ of habeas corpus as to the sexual abuse charges unless Grueninger was to be prosecuted in a new trial on those counts without utilizing the confession.

With respect to his child pornography charges, the Fourth Circuit affirmed the district court, holding that Grueninger failed to show a reasonable probability of a different outcome as required by the prejudice prong.

By Evelyn Norton

Today, in an unpublished per curiam opinion, United States v. Hartsoe, the Fourth Circuit affirmed the decision of the U.S. District Court for the District of South Carolina convicting Jerry Elmo Hartsoe of mail fraud and making false statements.

Hartsoe Argued His Statements Were Improperly Admitted into Evidence

In the District Court, the jury convicted Hartsoe of eight counts of mail fraud and one count of making false statements.

On appeal, Hartsoe argued that the Fourth Circuit should vacate the District Court’s decision.  Hartsoe alleged that the District Court improperly allowed into evidence statements Hartsoe made before law enforcement read Hartsoe his Miranda Rights.

Miranda Warnings are Not Required if the Suspect is Not in Custody

Citing Miranda v. Arizona, the Fourth Circuit stated that Miranda warnings are indisputably required when a suspect is interrogated while in custody.  For Miranda purposes, a suspect is “in custody” when the suspect’s freedom of action is curtailed to a degree associated with formal arrest.  Thus, a reasonable person in the suspect’s position would believe he was “in custody.”

Hartsoe Was Not In Custody

Here, however, the Fourth Circuit determined that Hartsoe’s presence was voluntary.  When Hartsoe first arrived to the scene, law enforcement asked Hartsoe to leave.  Hartsoe’s testimony indicated he was not intimidated, but was aggressive and demanding at the scene.  Later, law enforcement told Hartsoe that he was not under arrest and was free to leave.  As a result, the Fourth Circuit found it unlikely that a reasonable person in Hartsoe’s position would have believed himself to be in custody.  Thus, no Miranda warnings were required and Hartsoe’s statements were properly admitted into evidence.

Court of Appeals for the Fourth Circuit Affirmed

The Fourth Circuit Affirmed Hartsoe’s convictions, finding the District Court did not err in allowing Hartsoe’s statements into evidence.

 

By: Carson Smith

Today, in United States v. Mormon, an unpublished opinion, the Fourth Circuit affirmed the district court’s conviction of defendant, Kevin Mormon. The District of Maryland convicted the defendant of “conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base, in violation of 21 U.S.C. § 846.” On appeal, Mormon challenged the district court’s denial of his motion to suppress, admission of statements made by a co-conspirator, and failure to grant his motion for mistrial based on improper remarks made by the Government during closing arguments.

The District Court’s Denial of Mormon’s Motion to Suppress Was Proper Because His Statements Were Voluntary.

Mormon argued that the district court erred by refusing to suppress statements made by Mormon to law enforcement officers. In assessing a motion to suppress, appellate courts review legal conclusions de novo and factual findings for clear error.

The Fourth Circuit concluded that the statements made by Mormon to the officers were voluntary. Under Miranda v. Arizona, any statement extracted from a defendant through threats of violence, direct or implied promises, or improper influence is involuntary and thus inadmissible in court. Essentially, “the proper inquiry is whether the defendant’s will has been overborne or his capacity for self-determination critically impaired.” While Mormon claimed that the statements were only made after the officers promised to release him in exchange for his cooperation, the Fourth Circuit determined that the officers did not explicitly promise him anything in exchange for his cooperation. Furthermore, the Fourth Circuit found it persuasive that Mormon had refused to reveal his cocaine distributor until an attorney was present. This illustrated his ability to understand his rights and maintain willpower during the incident. Accordingly, the Fourth Circuit affirmed the district court’s denial of the motion to suppress.

The District Court Did Not Abuse Its Discretion by Admitting Statements of Co-Conspirator.

Mormon claimed that the district court incorrectly admitted statements made by a co-conspirator on a video recording. Mormon argued that the recording was not properly authenticated and the statements violated the hearsay rule and Confrontation Clause. Appellate courts review the admissibility of evidence for abuse of discretion.

The Fourth Circuit concluded that the video recording was properly authenticated and the statements properly admitted. In order to properly authenticate a piece of evidence, the government must only show on its face, prima facie, that the evidence is authentic. The Fourth Circuit determined that the Government “provided an adequate foundation to show that the recording was what the Government said it was” and thus satisfied their burden. In addition, the statements made by the co-conspirator were admissible under the co-conspirator exception to the hearsay rule. Finally, the statements did not violate the Confrontation Clause because they were not testimonial. Therefore, the court affirmed the district court’s admission of the co-conspirator statements.

Improper Statements by the Government During Closing Argument Did Not Deprive Mormon of a Fair Trial.

Mormon claimed that the district court should have granted his motion for a mistrial because of improper remarks made by the Government during closing argument.  A motion for mistrial is reviewed for abuse of discretion.

The Fourth Circuit concluded that the remarks made by the Government did not warrant a mistrial. In order for a court to grant a mistrial, the defendant must prove that the Government made improper remarks during the closing argument which “prejudicially affected [the defendant’s] substantial rights so as to deprive him of a fair trial.” Even though the Government conceded that the remarks were improper, the Fourth Circuit determined that they did not rise to the level of prejudicial. Not only were the remarks “a brief, isolated episode,” but the Government’s case was persuasive even without the remarks. Accordingly, the Fourth Circuit affirmed the district court’s denial of Mormon’s motion for a mistrial.

District Court Judgment Affirmed.

The Fourth Circuit affirmed the district court’s ruling on each of the three issues raised by Mormon on appeal.