No,

Supreme Court, LI.S.FILED

091459 HAY Z7 "?_010

OFPtCE OF THE CLERK

In the Supreme Court of the United States

THE STATE OF SOUTH CAROLINA, PETITIONER,

Go

KENNETH NAVY, RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO THESUPREME COURT OF SOUTH CAROLINA

PETITION FOR WRIT OF CERTIORARI

* Counsel of Record

HENRY D. MCMASTERAttorney General

JOHN W. MCINTOSHChief Deputy Attorney General

*SALLEY W. ELLIOTTAssistant Deputy Attorney GeneralCounsel of Record

MICHELLE PARSONS KELLEYAssistant Attorney GeneralSouth Carolina Attorney General’s OfficeP. O. Box 11549Columbia, South Carolina 29211selliott@scag.gov(803) 734-3727Counsel for Petitioners

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QUESTIONS PRESENTED

Should this Court address the governingadmissibility test of Seibert’s fracturedopinion where the federal circuit courts andstate high courts are deeply divided overSeibert’s application-and Navy presents ascenario in which the majority applied theplurality test to exclude statements thatwould have clearly been admitted underJustice Kennedy’s test?

2. Should this Court address Navy’s holdingwhere it impermissibly broadened Seibert’sapplication to non-custodial settings?

TABLE OF CONTENTS

QUESTIONS PRESENTED ...............................i

TABLE OF AUTHORITIES ...............................v

OPINIONS BELOW ..........................................1

JURISDICTION ...............................................1

CONSTITUTIONAL PROVISIONS .....................2

STATEMENT OF THE CASE .............................3

REASONS FOR GRANTING THE PETITION ......4

I. This Court should grant review to determinethe meaning and applicability of Seibert’sfractured opinion ..........................................5

A. The Seibert opinion is badly fractured ........6

B. The Circuit Courts of Appeal and statecourts of last resort are irreconcilablysplit over the meaning and applicabilityof Seibert ................................................8

C. Inconsistent and unreliable results ...........14

ii

II. The South Carolina Supreme Courtimpermissibly broadened Seibert’sapplication to non-custodial settings ..............16

A. Navy’s stretched the facts beyondreasonable interpretation ........................16

B. Seibert did not in anyway changethe test for custody determinations ..........19

C. Navy’s majority disregarded thisCourt’s custody case law ..........................25

Do By stretching the facts beyondreasonable interpretation, Navybroadened the applicability of theplurality test .........................................29

CONCLUSION ...............................................39

ooo111

APPENDIX TABLE OF CONTENTS ................A1

Appendix A

The South Carolina Supreme CourtOpinion dated January 11, 2010 ..............A2

Appendix B

The South Carolina SupremeCourt Order denying the Petitionfor Rehearing dated March 2, 2010 .........A24

Appendix C

The South Carolina Court of AppealsOpinion dated July 31, 2006 ..................A27

Appendix D

State’s Petition for Rehearing fromthe South Carolina Supreme CourtDecision dated January 11, 2010 ............A54

iv

TABLE OF AUTHORITIES

Cases Page(s)

Beckwith v. United States,425 U.S. 341 (1976) ..............................21- 22

California v. Beheler,463 U.S. 1121, 1125 (1983) ....................20- 21

Davis v. State,990 So.2d 459 (F1. 2008) .............................14

Gregg v. Georgia,428 U.S. 153, 169 n. 15 (1976) .......................8

Jackson v. Commonwealth,187 S.W.3d 300 (Ky. 2006) ...........................13

Marks v. U.S.,430 U.S. 188, 193 (1977) ...............................8

Maryland v. Shatzer,__ U.S. __, 130 S.Ct. 1213 (2010) ..................23

Missouri v. Seibert,542 U.S. 600 (2004) ................................... 5-38

Oregon v. Elstad,470 U.S. 298, 318 (1985) ..........................15, 24

V

Orozco v. Texas,394 U.S. 324, 327 (1969) ..........................23, 36

Stansbury v. California,511 U.S. 318, 323 (1994) ..........................21- 22

State v. Farris,849 N.E.2d 985, 994 (Ohio 2006) ....................13

State v. Jones,151 P.3d 22 (Kan. 2007) ................................13

State v. Northern,262 S.W.3d 741 (Tenn. 2008) .........................13

State v. O’Neill,936 A.2d 438 (N.J. 2007) ...............................14

U.S. v. Black Bear,422 R.3d 658, 664 (8th Cir. 2005) .....................9

U.S. v. Caiello,420 F.2d 471, 473 (2nd Cir. 1969) ...................22

U.S. v. Carrizales-Toledo,454 F.3d 1142, 1150 (10th Cir. 2006) ...............12

U.S. v. Carter,489 F.3d 528 (2nd Cir. 2007) ..........................12

vi

U.S. v. Courtney,463 F.3d 333, 338 (5th Cir. 2006) .....................9

U.S. v. Gonzalez-Lauzan,437 F.3d 1128 (llth Cir. 2006) .......................13

U.S. v. Heron,564 F.3d 879, 884 (7th Cir. 2009) ...................10

U.S. v. Kiam,432 F.3d 524, 532-533 (3rd Cir. 2006) ...............9

U.S. v. Mashburn,406 F.3d 303, 309 (4th Cir. 2005) .....................9

U.S. v. McConer,530 F.3d 484 (6th Cir. 2008) ..........................13

U.S. v. Rodriguez-Preciado,399 F.3d 1118, 1139-1141 (9th Cir. 2005)...10- 12

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PETITION FOR A WRIT OF CERTIORARI

Petitioner, the State of South Carolina,through the Attorney General of South Carolina,hereby petitions the Court for a Writ of Certiorarito review the decision of the Supreme Court ofSouth Carolina.

OPINIONS BELOW

The South Carolina Supreme Court’s opinionis reported at State v. Navy, 688 S.E.2d 838 (S.C.2010), and is attached to this petition as AppendixA. The South Carolina Supreme Court’s orderdenying rehearing is unpublished and is attachedto this petition as Appendix B. The decision of theSouth Carolina Court of Appeals can be found atState v. Navy, 635 S.E.2d 549 (S.C. App. 2006), andis attached to this petition as Appendix C.

STATEMENT OF JURISDICTION

The South Carolina Supreme Court filed itsorder denying the petition for rehearing on March2, 2010. This petition for writ of certiorari istherefore timely pursuant to Supreme Court Rule13 because it has been filed within 90 days ofMarch 2, 2010. The Court has jurisdictionpursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United StatesConstitution provides, in pertinent part:

No person shall be... compelled in acriminal case to be a witness againsthimself...

The Fourteenth Amendment to the UnitedStates Constitution provides, in pertinent part:

No State shall make or enforce any lawwhich shall abridge the privileges orimmunities of citizens of the United States;nor shall any State deprive any person oflife, liberty, or property, without dueprocess of law; nor deny to any personwithin its jurisdiction the equal protectionof the laws.

STATEMENT OF THE CASE

A jury convicted the Respondent of homicideby child abuse for smothering his twenty-three-month-old son. During the homicide investigation,the Respondent spoke with police at the policestation and gave a statement. Upon signing thefirst statement, the officers asked him a few morequestions and then read his Miranda rights. Afterwaiving his rights, the Respondent provided twoadditional statements.

The trial court found the Respondent was notin custody at the time of his interview at the policestation and allowed the admission of theRespondent’s first pre-Miranda statement, as wellas the Respondent’s two post-Miranda statements.

The South Carolina Court of Appeals held,however, (1) the defendant was in custody, thuswarranting Miranda warnings, and (2) mid-interrogation Miranda warnings, given after theRespondent gave an oral inculpatory statement,were ineffective.

The South Carolina Supreme Court reversedin part and unanimously found the Respondent wasnot in custody during the first statement. But, aslim majority, the court held the non-custodialinterview "matured" into a custodial interrogationfollowing the first statement. In the minutes afterthe first statement, prior to Miranda and thesubsequent statements, the officers informed theRespondent the victim had been smothered and

asked the Respondent to explain again how hecomforted the victim. At this time, the Respondenttold Smith that he may have "popped" the victim onhis back and may have "patted" the victim on hismouth to stop him from crying. (R. 351). Smithrecalled that Navy asked him if he was underarrest. Smith told Navy, "no, we are just trying toget some answers." (R. 1304-05). The majorityfound "[a]t this juncture, the nature of theinterrogation and Respondent’s status changed,and what had begun as a voluntary question andanswer session matured into custodialinterrogation." In a 3-2 decision, the SouthCarolina Supreme Court held the writtenstatements following Miranda warnings were notadmissible, given a Seibert violation. The ChiefJustice of the South Carolina Supreme Courtauthored the dissent, stating the situation had notmatured into a custodial situation prior to Mirandaand thus, Seibert did not apply. Again by a 3-2split, the South Carolina Supreme Court denied theState’s petition for rehearing.

REASONS FOR GRANTING THE PETITIONFOR WRIT OF CERTIORARI

This Court should grant review to identifythe governing admissibility test of Seibert’sfractured opinion. The federal circuit courts andstate high courts are deeply divided over Seibert’sapplication, which has led to inconsistent and

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unreliable results. Navy requires this Court’sdetermination of the reigning test because itpresents a scenario in which the majority appliedthe plurality test to exclude statements that wouldhave clearly been admitted under JusticeKennedy’s test. This Court should also rectifyNavy’s abandonment of established custody caselaw when Navy found an admittedly non-custodialquestioning morphed into a custodial interrogation.Further, in applying Seibert’s plurality test, theNavy majority stretched the facts beyondreasonable interpretation, thereby widening theapplication of the test.

L This Court should grant review todetermine the meaning and applicability ofSeibert’s fractured opinion.

The federal circuit courts and state highcourts nationwide are divided over which testcontrols Missouri v. Seibert, 542 U.S. 600 (2004). InSeibert, the police arrested Seibert in the middle ofthe night and took her to the police station forinterrogation. The police employed an intentionalstrategy of withholding her Miranda rights throughthirty to forty minutes of interrogation until sheconfessed. The police then gave her a twenty-minute break before mirandizing her. After herMiranda waiver, the police reviewed theinformation provided in her first unwarned

confession and solicited the same admissions post-Miranda.

A. The Seibert opinion is badly fractured

This Court decided Seibert in a 4-1-4 split.Justice Souter authored the plurality opinion anddescribed the custodial interrogation as"systematic, exhaustive, and managed withpsychological skill." Id. at 617. Justice Souter saidthe main concern in analyzing a two-part custodialinterrogation is whether the intervening Mirandawarnings were effective. To determineeffectiveness, the plurality instructed courts toconsider the following:

1. The completeness and detail ofthe questions and answers inthe first round of interrogation,

2. The overlapping content of thetwo statements,

3. The timing and setting of thefirst and the second,

4. The continuity of policepersonnel, and

5. The degree to which theinterrogator’s questions treatedthe second round as continuouswith the first.

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Id. at 615.Justice Kennedy provided the fifth vote for

the majority, but concurred in judgment only.Justice Kennedy agreed the "question-first" tacticused in Seibert undermined the purpose ofMiranda, but objected to the plurality’s test,stating:

This test envisions an objective inquiryfrom the perspective of the suspect,and applies in the case of bothintentional and unintentional two-stage interrogations. In my view, thistest cuts too broadly. Miranda’s clarityis one of its strengths, and amultifactor test that applies to everytwo-stage interrogation may serve toundermine that clarity. I would applya narrower test applicable only in theinfrequent case, such as we have here,in which the two-step interrogationtechnique was used in a calculatedway to undermine the Mirandawarning.

The admissibility of postwarningstatements should continue to begoverned by the principles of Elstad...

Id. at 621-622 (citations omitted).

Justice Kennedy’s test focused on thesubjective view of the officers. Both the pluralityand the dissent firmly rejected an admissibilitytest based on the subjective intent of the officers.1The dissent also rejected the plurality’seffectiveness test, however, and proposed avoluntariness test instead.

B. The Circuit Courts of Appeal and statecourts of last resort are irreconcilably splitover the meaning and applicability of Seibert.

1. The Third, Fourth, Fifth, and EighthCircuits have applied Marks to Seibert to sayJustice Kennedy’s test prevails. "When afragmented Court decides a case and no singlerationale explaining the result enjoys the assent offive Justices, ’the holding of the Court may beviewed as that position taken by those Memberswho concurred in the judgments on the narrowestgrounds .... ’" Marks v. U.S., 430 U.S. 188, 193(1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169n. 15 (1976)).

1 The plurality said, "[b]ecause the intent of the officer willrarely be as candidly admitted as it was here (even as it islikely to determine the conduct of the interrogation), the focusis on facts apart from intent that show the question-firsttactic at work." Seibert at 617. Justice O’Connor’s dissentfollowed, "[t]he plurality’s rejection of an intent-based test isalso, in my view, correct." Id. at 624.

These circuits have determined JusticeKennedy’s test represents the narrowest grounds ofa fractured Seibert decision and therefore controls.The Third Circuit discarded the application of theplurality five-factor test, saying it was "not faulty,but it was unnecessary, having found the initialfailure to give Miranda warnings inadvertent."The Third Circuit promoted Justice Kennedy’s testand held absent evidence of deliberate police action,the court should proceed only under Elstad. U.S.v.Kiam, 432 F.3d 524, 532-533 (3rd Cir. 2006). Seealso U.S.v. Mashburn, 406 F.3d 303, 309 (4th Cir.2005) (The Fourth Circuit applied Marks to say,"Justice Kennedy’s opinion therefore represents theholding of the Seibert Court."); U.S.v. Courtney,463 F.3d 333, 338 (5th Cir. 2006)(holding that asthe most narrow test, Justice Kennedy’s testgoverns.); U.S.v. Black Bear, 422 R.3d 658, 664(8th Cir. 2005) (Finds Justice Kennedy’s test is themost narrow and prevailing test, stating "the key toSeibert is whether the police officer’s technique was’designed,’ deliberate,’ ’intentional,’ or ’calculated’circumvention of Miranda.").

2. In direct contrast, the Seventh, Ninth,and Tenth Circuits have declined to declare JusticeKennedy’s test as the voice of Seibert. Thesecircuits reason that because both the plurality andthe dissent have rejected a subjective test focusedon the officer’s intent, then Justice Kennedy’s testcannot be the common denominator of this Court.

These circuits do not believe Justice Kennedy’s testis a more narrow version of the plurality holdingbecause the plurality has specifically rejected thepremise of Justice Kennedy’s test. Yet, thesecircuits remain unclear on which test ought toapply. Consequently, they have applied both theplurality test and Justice Kennedy’s test out ofprecaution.

The Seventh Circuit concluded "the Marksrule is not applicable to Seibert. Although JusticeKennedy provided the crucial fifth vote for themajority, we find it a strain at best to view hisconcurrence taken as a whole as the narrowestground on which a majority of the Court couldagree." U.S.v. Heron, 564 F.3d 879, 884 (7th Cir.2009).

In a situation like this, it is risky toassume that the Court has announcedany particular rule of law, since theplurality and dissent approachesgarnered only four votes each .... Inthe case of Seibert, the only thing weknow for sure is that at least sevenmembers of the Court rejected anintent-based approach and acceptedsome kind of exception to Elstad, evenif the scope of that exception remainsunclear.

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Id. at 885. (citing U.S.v. Rodriguez-Preciado, 399F.3d 1118, 1141 (9th Cir. 2005).

The Seventh Circuit declined to "resolve onceand for all what rule or rules governing two-stepinterrogations can be distilled from Seibert"because the statements involved were admissibleunder either test. Id.

In the Ninth Circuit, the Rodriguez-Preciadomajority concluded that they did not need to decidewhether they were bound by the plurality test orJustice Kennedy’s test because the defendant wasmirandized at the inception of the interrogation.Rodriguez-Preciado at 1139-1141. The Rodriguez-Prec~ado dissent, however, outlined the Seibertdilemma in detail, saying "no opinion in Seibertcommanded the agreement of a majority ofJustices," and Seibert has created great difficultyfor courts attempting to ascertain the appropriaterule.

The dissent submitted Justice Kennedy’sopinion cannot be the "narrowest opinionembodying a position supported by at least fiveJustices in the majority. It embodies a positionsupported by two Justices, at most." Id. at 1140.

The dissent further argued the application ofMarks to Seibert is "problematic." "When ... oneopinion supporting the judgment does not fitentirely within a broader circle drawn by theothers, Marks is problematic. If applied insituations where the various opinions supportingthe judgment are mutually exclusive, Marks will

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turn a single opinion that lacks majority supportinto national law." Id. at 1140 (citations omitted).

The dissent believed that at least fiveJustices supported all but one of Seibert’sprinciples. The dissent noted seven Justicesdismissed the subjective intent focus of anadmissibility test. Five Jusices advocatedoverruling Orso and five Justices also advocatedElstad exceptions. Consequently, "[t]he only pointnot enjoying the assent of five Justices is theappropriate admissibility standard to apply, onwhich the Court is split 4-1-4." Id. at 1141.

The Tenth Circuit also rejected JusticeKennedy’s test as the voice of Seibert saying,"Determining the proper application of the Marksrule to Siebert is not easy, because arguably JusticeKennedy’s proposed holding in his concurrence wasrejected by a majority of the Court." U.S.v.Carrizales-Toledo, 454 F.3d 1142, 1150 (10th Cir.2006). The Tenth Circuit also declined todetermine the governing test because the relevantstatements were admissible under either theplurality or Justice Kennedy’s test.

3. The Second and Eleventh Circuits haveapplied both the plurality test and JusticeKennedy’s test to admit statements, withoutanalyzing which test prevails. U.S.v. Carter, 489F.3d 528 (2nd Cir. 2007) (Said Seibert required"deliberate" police action, but applied both JusticeKennedy’s test and plurality factors to determine

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Elstad applied). U.S. v. Gonzalez-Lauzan, 437F.3d 1128 (11th Cir. 2006). (Applied both theplurality and Justice Kennedy’s test to find thestatements were admissible); See also U.S. v.McConer, 530 F.3d 484 (6th Cir. 2008).

4. To add to the disorder, the state highcourts vary wildly in their application of Seibert,but the split in their application is less clear. Anexamination of state courts reflects massuncertainty regarding Seibert’s properinterpretation. Some states have chosen to applyJustice Kennedy’s test. See Jackson v.Commonwealth, 187 S.W.3d 300 (Ky. 2006)(Applied Justice Kennedy’s test, calling it the mostnarrow holding of the majority). Other states havechosen to apply the plurality test. See State v.Farris, 849 N.E.2d 985, 994 (Ohio 2006)(Agreed"with the Seibert plurality and dissent that theintent of the officer doing the questioning is notrelevant in a Miranda analysis." The Court heldthe statements were inadmissible due to the sameprewarning and postwarning content.); State v.Jones, 151 P.3d 22 (Kan. 2007) (adopted pluralityeffectiveness language); State v. Northern, 262S.W.3d 741 (Tenn. 2008) (Said many courts applyJustice Kennedy’s test because they believe it isthe most narrow, but Justice Kennedy’s reasoningis "directly inconsistent" with the plurality anddissent’s reasoning. Consequently, court appliedplurality test.); State v. O’Neill, 936 A.2d 438 (N.J.

2007) ("The Seibert opinions have sown confusionin the state and federal courts, which haveattempted to divine the governing standard thatapplies." The court ultimately used the pluralitytest, mixed with state laws, to find Seibert appliedto the case at hand).

Some states don’t understand which testthey are applying. Florida found where there wasno deliberate action by police officers, Elstadapplied because Justice Kennedy suggested theplurality test applied only to situations ofintentional police conduct. Davis v. State, 990So.2d 459 (F1. 2008) ("Because this is not asituation where Justice Kennedy agreed the

¯ plurality’s test would apply, Elstad applies, as thefour dissenting justices and Justice Kennedystated.").

C. Inconsistent and unreliable results.

The federal circuit courts and state highcourts are split over whether Justice Kennedy’stest represents the Seibert holding. This split hasresulted in inconsistent and unreliable results.

Navy calls for this Court’s clarification of theSeibert’s governing test. The Navy majoritywidened the plurality test to exclude statementsthat were clearly admissible under JusticeKennedy’s test.

In considering statement admissibility,Justice Kennedy first looked for a "deliberate two-

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step strategy" and if there was no deliberatestrategy, Elstad applied. Seibert at 622. Navy’strial judge found no evidence of coerciveinterrogation strategy. Contrary to Seibert, theNavy officers never said they intentionallywithheld Miranda warnings to strategically extracta prewarning confession. Smith explained that hedid not inform Navy of Miranda, because thediscussion was "non-custodial." (R. 1274). Uponbeing confronted with his child’s suffocation and ribfractures, Navy admitted he may have "popped" thechild and "patted" his mouth. After theseadmissions, Smith advised Navy of his Mirandarights out of "an abundance of caution." (R. 1282-1283, 1303- 1306). Navy voluntarily waived theserights.2 At most, the facts indicate the officersmade a "good-faith Miranda mistake." Seibert at615.

According to Justice Kennedy’s test, absentevidence of a deliberate two-step strategy by thepolice, Elstad governs the admissibility of Navy’spost-warning statements. Oregon v. Elstad, 470U.S. 298, 318 (1985)) (considers whether the post-Miranda statement was voluntary). Evidenceindicates the waiver was voluntary and theRespondent failed to argue otherwise below.Consequently, the application of Justice Kennedy’s

2 Navy’s waiver of his Miranda rights was undisputed onappeal.

test would have likely resulted in the admission ofthe Respondent’s postwarning statements.

In employing a broadened version of theplurality test, Navy excluded statements thatwould have been admitted under Justice Kennedy’stest. The disparity in results underscores theimportance of distinguishing the reigning test.

II. The South Carolina Supreme Courtimpermissibly broadened Seibert’s applicationto non-custodial settings.

A. Navy’s majority stretched the facts beyondreasonable interpretation.

Prior to trial, the trial court conducted aJackson v. Denno hearing to determine theadmissibility of Navy’s statements to the police. Lt.Smith testified in camera that he was the leadinvestigator in the death of the 23-month-oldvictim, on Sunday, February 9, 2003. (R. 1269-1270). On Wednesday morning at approximately9:00 am, Smith and Sergeant Lancy Weeks went totalk with Navy at his home. Navy agreed toaccompany them to the police station "to discusssome further details about this case." Smith statedNavy was "very agreeable and very cooperative. Hesaid he would help in any way. He was glad toaccompany [them] . . . that he only wanted someanswers." Navy testified he wanted to delay theinterview until after the victim’s funeral visitation,

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but he was told the interview could not wait.Smith recalled Navy was "upset" and crying at thetime. They drove in an unmarked car. Smith andWeeks sat in the front while Navy sat in the back.Navy was neither handcuffed nor placed underarrest. Lt. Smith testified, "we basically just hadsome small talk on the way in the car." Navy wasnot questioned. (R. 1271-72, 1300-01, 1321). Smithtestified that if Navy did not want to go with them,they would not have taken him. (R. 1271). Navyalso admitted that he was informed that he wouldbe back home in "couple of hours." Navy testified, "Ijust thought that they needed a quick statementfrom me and like they said they would take meback home."

Once they arrived at the police station, Navywas allowed to smoke a cigarette in the backparking lot. He also requested a soda. (R. 1273-1274). According to Smith, Navy cried andremained upset during the entire interview process.Smith stated that Navy was free to go home andwould have been allowed to leave if he had asked todo so. (R. 1301- 1302).

Smith testified he took Weeks and Navy tohis office where they went over Navy’s statementsfrom Sunday. (R. 1272- 1274). Smith explained thathe did not inform Navy of his rights pursuant toMiranda, because the discussion was "non-custodial at that time." (R. 1274). Navy was "verycooperative," and spoke with them freely andvoluntarily. (R. 1274). At 9:50, Navy gave the

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police an oral statement. (R. 1274- 1275, 1281,1421-23).

In this statement, Navy told the police thatthe victim fell out of his high chair that weekend,but he was okay and "acted normal" afterwards.On Sunday, Navy was at home when he heard thevictim crying "like he had a nightmare." Navy wentupstairs and found the child sitting up in his crib.Navy laid him down and patted him on the back tocomfort him, and then went downstairs to get abottle. Navy returned to find the victim having ahard time breathing. Navy panicked and ran upand down the stairs several times to figure outwhat was going on. Navy stated he went to see thevictim again and he was lifeless. Navyadministered CPR and called 911. Navy said hecontinued with CPR until the ambulance arrived.(R. 342-50). This first statement was typed andNavy signed each page.

After the first statement, Smith informedNavy the victim was suffocated and there wasevidence of broken ribs. (R. 350-51). Navy"expressed some shock" about this information.Smith then asked Navy to explain again how hecomforted the victim. At this time, Navy told Smiththat he may have "popped" the victim on his backand may have "patted" the victim on his mouth tostop him from crying. (R. 351). Smith recalled thatNavy asked him if he was under arrest. Smith toldNavy, "no, we are just trying to get some answers."(R. 1304-05).

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At that point, they took a break becauseNavy wanted to smoke another cigarette. Smithtestified he accompanied Navy during the breakbecause the Sheriffs office does not allow people tobe unescorted in the Sheriffs department. Smithagain stated that if Navy had requested to go homethey would not have stopped him. He said Navy"was not in custody." (R. 1282, 1305, 1308).

They returned to the office and at 11:35,Smith advised Navy of his Miranda rights out of"an abundance of caution," "because I felt like thatthe latest responses possibly may lead into someincriminating statements[.]" (R. 1282-83, 1303-06).Navy acknowledged his rights and signed a writtenwaiver. (R. 1283-86, 1420). Smith testified Navyunderstood his rights, and he voluntarily waivedthem and agreed to give another statement. (R.1286-89).

Navy testified the police told him he "had" tocome with them to give a statement, and that hehad asked the officers if he could wait until afterthe victim’s funeral. However, Navy admitted thathe was informed that he would be back home in"couple of hours." Navy testified, "I just thoughtthat they needed a quick statement from me andlike they said they would take me back home."

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B. Seibert did not in anyway change the testfor custody determinations.

1. The South Carolina Court of Appeals heldRespondent was in custody when the first oralstatement was given to police and the trial courterred in finding to the contrary. The SouthCarolina Supreme Court majority found "it isdebatable whether a reasonable person would havebelieved himself to be in custody at the time thefirst statement was given, and thus the trial court’sfinding that respondent was not in custody shouldhave been upheld as it is supported by the record."Chief Justice Toal authored the dissent, but agreedwith the majority that the Respondent was not incustody at the time of his first statement, findingthe statement admissible.

The majority further found, however, thenon-custodial interview turned into a custodialinterrogation between Respondent’s first statementand his Miranda warning. The dissentersdisagreed, as does the Petitioner.

This Court has outlined the considerationsfor determining whether a defendant is in custody:

Although the circumstances of eachcase must certainly influence adetermination of whether a suspect is"in custody" for purposes of receivingMiranda protection, the ultimateinquiry is simply whether there is a

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"formal arrest or restraint on freedomof movement" of the degree associatedwith a formal arrest.

California v. Beheler, 463 U.S. 1121, 1125 (1983).The Respondent did not think he was under

arrest. He acknowledged the officers informed himthat he would be back home in "couple of hours."The Respondent thought, "they needed a quickstatement" before taking him home. The majorityadmitted the first statement was non-custodial.During the period identified as the point ofescalation into custodial interrogation, theRespondent asked the officers if he was underarrest, and they. informed him, "no, we are justtrying to get some answers." (R. 1304-05).

The Respondent was admittedly aware hewas not under arrest and this Court has identifiedthat benchmark as the "ultimate inquiry." Themajority disregarded Beheler to find theRespondent entered into custody even though heknew he was not under arrest and there were nochanges in restraint or compulsion.

This Court has also held custody inquiriesshould be objective not subjective. "Our decisionsmake clear that the initial determination ofcustody depends on the objective circumstances ofthe interrogation, not on the subjective viewsharbored by either the interrogating officers or theperson being questioned." Stansbury v. California,

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511 U.S. 318, 323 (1994)(citing Beckwith v. UnitedStates, 425 U.S. 341 (1976)).

In this case, the objective circumstances ofthe interview did not differ between the initiationof the first statement and the implementation ofMiranda. The first statement was held to benoncustodial and nothing about the setting orconditions of the interview changed. In declaringthe officers "sprang" the news of his son’s homicideon the Respondent and asked questions "designedto elicit incriminating information," the majoritychose to focus on subjective considerations ratherthan the objective factors prescribed by this Court.

In Beckwith, this Court again emphasizedcustody determinations should look to the objectivecompulsion rather than the officer’s subjectiveviews. "It was the compulsive aspect of custodialinterrogation, and not the strength or content ofthe government’s suspicions at the time thequestioning was conducted, which led the court toimpose the Miranda requirements with regard tocustodial questioning." Beckwith at 346-347(quoting U.S.v. Caiello, 420 F.2d 471, 473 (2ndCir. 1969)).

In explaining why the situation turnedcustodial, the Navy majority stated, "The officersbegan the questioning of respondent withknowledge that the child had been suffocated andwith the intention of eliciting a confession." Again,the majority’s statements demonstrate the court’sfocus on the "strength" and "content" of the officers’

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"suspicions," rather than any escalation ofcompulsion. In fact, the majority neglected todescribe any factors that increased the objectivecompulsion of the interview such that the situationbecame custodial.

In Seibert, the Court explicitly noted thatSeibert was "arrested" and, thus, in custody priorto any questioning by the police. Seibert at 606.Seibert did not abrogate the long-standingprinciple that Miranda warnings are not requiredwhen the individual’s freedom has not been sorestricted as to render him in custody. Orozco v.Texas, 394 U.S. 324, 327 (1969). Thus, if a suspectgives an unwarned, voluntary confession beforebeing taken into custody, a subsequent confessionexacted after the waiver of his Miranda rightsneed not be suppressed. Since Navy was notsubjected to "custodial" questioning, Mirandawarnings were not required. Afortiori, Seibert wasnot applicable.

2. Navy’s misapplication of custody law hasconsequences exceeding the boundaries of this case.In addition to distorting established precedent,Navy has stripped law enforcement of clearguidelines for custody analysis. This Court hasrecognized it is important for police to have clearguidelines to follow. See Maryland v. Shatzer, ~U.S. __, 130 S.Ct. 1213(2010). Though thePetitioner asserts the questioning never escalatedinto a custodial interrogation, if it had, it would

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have been difficult for the officer to detect when theactual custodial interrogation began. Where eventhe state high court Chief Justice disputed thetransition occurred, the officer was unlikely torealize he had entered the zone of custodialinterrogation and Miranda was required. JusticeKennedy addressed this threat, stating:

An officer may not realize that asuspect is in custody andwarnings are required, and maynot plan to question the suspect ormay be waiting for a more appropriatetime. Suppressing post-warningstatements under such circumstanceswould serve "neither the general goalof deterring improper police conductnor the Fifth Amendment goal ofassuring trustworthy evidence."Elstad, supra, at 308, 105 S.Ct. 1285.

Seibert at 602 (emphasis added). JusticeKennedy’s words speak to the situation at hand.Even if the situation had become one of custodialinterrogation, which the Petitioner does notconcede it did, the officer did not realize Navy wasin custody and warnings were required. As aresult, the Petitioner submits the facts fall underElstad and suppressing post-warning statementstwo and three did not deter improper policeconduct or serve the "Fifth Amendment goal of

24

assuring trustworthy evidence." Elstad at 308. Itis not clear why Navy found the situation becamecustodial, but it is very clear that law enforcementwill encounter great difficultly in understandingand applying Navy.

C. Navy’s majority disregarded this Court’scustody case law.

As stated, the majority found the first oralstatement was given in a non-custodial situation,but following the statement, the situationtransitioned into a custodial interrogation. Infootnote 4 of their opinion, the majority explainedthey were not focused on the admissibility of thefirst statement, but "on the police actions andinterrogation after that statement had been given."In the opinion, the majority elaborated, stating:

After he gave this first statement, thecrying and upset respondent wasinformed, for the first time, that thechild had been suffocated and thatthere was evidence of broken ribs.According to Investigator Smith,respondent was shocked and surprisedby this information. Respondent askedif he were under arrest, and was told"No, we are just trying to get someanswers." The officers engaged in

25

follow-up questioning, askingspecifically how respondent hadcomforted the crying child. At thisjuncture, the nature of theinterrogation and respondent’sstatus changed, and what hadbegun as a voluntary question andanswer session matured intocustodial interrogation. Inresponse to these follow-up questions,respondent told the officers he had"popped" the child on the back ratherthan simply patted him, and that hemay have "patted" the child on itsmouth to stop the crying.

Nav~ at 3 (emphasis added).

The officers began the questioning ofrespondent with knowledge that thechild had been suffocated and with theintention of eliciting aconfession. After respondent’s firstoral statement, the officers "sprang"the suffocation/healing rib fracturesinformation on respondent, and beganan unwarned custodial interrogationdesigned to elicit incriminatinginformation, that is, questioningdesigned to have respondent admit tohaving hit the child and to having

25

smothered him. Once thoseincriminating answers were given-i.e. after respondent admitted he hadpopped the child on the back and"patted" his mouth - respondent waspermitted a supervised cigarettebreak, then given Miranda warnings,with interrogation by the same officerresuming immediately.

Nav~ at 6.Chief Justice Toal dissented and asserted the

following:

In the present case, I agree with themajority that the first statement wasadmissible because Respondent wasnot in custody when it was given.Because there was no custodialinterrogation regarding the firststatement, there was no need forMiranda warnings. The majoritystates that the interrogation statuschanged from noncustodial tocustodial when the police askedRespondent how he comforted thechild. However, merely askingquestions that result in inculpatoryresponses does not change anoncustodial interrogation into acustodial interrogation. If this were so,

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the nature of police investigationwould be forever altered. There is noevidence in the record to suggest thecircumstances of questioning changedsuch that a custodial interrogationresulted when the police began toelicit inculpatory information. Hence,because there was no custodialinterrogation, Seibert does not apply.

It is not entirely clear what the majoritybelieved led to the heightened custodial level of theinterview, but the following occurred between thefirst statement and Miranda, which is the periodidentified by the majority as when the custodialinterrogation began: (1) The officers confronted theRespondent with information inconsistent with hisprior statement, namely that his child had beenkilled; (2) The officers asked the Respondent toexplain how he comforted the child; (3) TheRespondent provided slightly incriminatinganswers that he may have "popped" the victim onhis back and may have "patted" the victim on hismouth to stop him from crying; and (4) The officersadministered Miranda warnings. None of theseoccurrences taken alone or together should haveimpacted the Respondent’s custodial position. AsChief Justice Toal correctly asserted, there was "noevidence" to support the majority’s custodydetermination. In contorting custody case law,

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Navy created another layer of confusion on top ofthe misapplication of Seibert.

D. By stretching the facts beyond reasonableinterpretation, Navy broadened theapplicability of the plurality test:

The Navy majority significantly expandedthe boundaries of Seibert’s plurality test when itapplied Seibert to exclude Navy’s statements.

1. The first prong of the plurality’s testconsiders "the completeness and detail of thequestions and answers in the first round ofinterrogation." Id. at 615. In Seibert, the officerobtained a full confession pre-Miranda and thengot the defendant to repeat her confession followingher Miranda.

"Question-first’s object, however, is to renderMiranda warnings ineffective by waiting to givethem until after the suspect has already confessed."Seibert at 601 (emphasis added). Justice Souteralso stated, "This case tests a police protocol forcustodial interrogation that calls for giving nowarning of the rights to silence and counsel untilinterrogation has produced a confession." Id. at604. (emphasis added). "[T]he sensible underlyingassumption is that with one confession in handbefore the warnings, the interrogator can count ongetting its duplicate, with trifling additionaltrouble." Id. at 611. (emphasis added).

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The Navy majority reasoned the situationbecame custodial after Respondent’s firststatement, so the "first round of interrogation"occurred during the grey area following the firststatement and before the Miranda warnings.During this time, Officer Smith informed Navy thevictim had been suffocated and there was evidenceof broken ribs. Smith asked Navy to explain howhe "comforted the baby, touched the baby, and thatkind of thing." Unlike Seibert, these few pre-Miranda questions were limited and brief, lackingcompleteness or extensive detail. Merely askingthe Respondent to explain how he comforted andtouched the baby could hardly be described as"systematic, exhaustive, andmanaged withpsychological skill." Id. at 616.

Navy’s answers also fall short of the fullconfession described in Seibert. Navy told them"that he sort of popped the baby in his back whenhe was on his stomach, and he said he sort of mayhave patted the mouth to calm the crying." Theseanswers cannot be considered a full confession,particularly in light of postwarning admissions.

2. Justice Souter also stated the court mustconsider the overlapping content between theprewarning and postwarning statements. Navy’sbrief answers are so limited in scope that virtuallyeverything provided in the post-Mirandastatements was new information. Justice Soutersaid, "[w]hen the police were finished there was

3O

little, if anything, of incriminating potential leftunsaid." Id. at 617. Here, the Navy majorityhighlighted the extensive additional informationprovided in the postwarning statements:

Following the Miranda warnings,respondent gave his second statement,this one in writing, at 11:40 am.Significantly, in this secondstatement, respondent described theevents as ’%he same as in his firststatement," except that:1) He could not get the child to be

quiet, and while the crying childwas sitting up in the crib,respondent put his hand overthe child’s mouth, but did nothold it there.

2) Respondent then laid the childon his stomach in the crib and"popped" him in the middle ofthe back, causing the child tocry "one time real loud."Respondent then put his handover the child’s mouth again totry to stop the crying, thennoticed the child could not gethis breath, perhaps as the resultof the uou on the back.

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3) Respondent, thinking he hadknocked the child’s breath out,went downstairs and returnedwith a bottle.

The child was still "making thatnoise" "like he was still trying tocatch his breath" andrespondent panicked. As thechild quit and then resumedbreathing, respondent wentdownstairs and got Terry.

5) When respondent and Terry gotback upstairs, the child was notbreathing.

6) In response to the question:"When you placed your handover [the child’s] mouth, is itpossible that your hand coveredhis nose area as well,"respondent answered "It couldhave been."

Qo When you popped him in theback, did you have your fistballed up?

Ao No sir. It was my flat hand.

Qo How hard did you pop him?

Not like trying to kill him ornothing. I just popped him.

Why did you pop [him] in theback Sunday?

Ao I was frustrated because he wascrying.

Following this second statement,which was reduced to writing, Sgt.Weeks contacted the pathologist whohad conducted the autopsy to askwhether the actions respondentadmitted committing in his secondstatement "could have caused" thechild’s death. The pathologist said no,and told the officer that the handwould have had to cover the child’snose and mouth for at least a minute.The officers then obtained a thirdwritten statement from respondent at

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12:25 pm. The brief questions andanswers are:

Qo [Respondent], is it possible that youheld your hand over [the child’s]mouth and nose for a longer period oftime then you first related to us thatyou did?

A. Yeah, it could have been longer.

Qo How long do you think it could havebeen?

A. I don’t know.

Qo Can you give us any idea at all howlong you might have held your handover his nose and mouth?

A. A minute, not more than two minutes.

Qo When you removed your hand the lasttime was [the child] breathing?

A. He was gasping for breath.

Navy at 3-5 (emphasis added).

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Pre-Miranda, Navy told the officer "that hesort of popped the baby in his back when he was onhis stomach, and he said he sort of may have pattedthe mouth to calm the crying." Post-Miranda,Navy admitted to popping the child hard out offrustration and covering the child’s nose and mouthsimultaneously for one to two minutes to the pointthat the child was "gasping for breath." Thepostwarning statement was not a repetition of aprewarning information. Rather, the initialstatements simply hinted at culpability while thelatter statements amounted to outright confessions.

3. Navy’s majority also erred whenconsidering "the timing and setting" between thetwo statements. The majority stated, "the officersquestioned respondent at headquarters for almostthree hours before giving the warning." Navy at 7.As outlined in the opinion, the officers came toNavy’s home at approximately 9:00 am. At 9:50am, Navy began his first oral statement, which wasthen typed up for Navy’s signature and signed byNavy. At the time of the oral statement, themajority found Navy was not in custody. Themajority stated the line of questioning did nottransition into a custodial interrogation until theofficers asked a few questions to follow-up on theoral statement. After these follow-up questions,Navy was permitted an additional break andinformed he was not under arrest. At 11:35, Navywas mirandized.

The officers did not subject Navy to threehours of custodial interrogation prior to a Mirandawarning. The Miranda warning cameapproximately two hours and thirty-five minutesafter the police went to Navy’s home. Moreimportantly, however, the majority categorized thebulk of that time as non-custodial. As a result,even if the questions following the oral statementproperly mark the initiation of a custodialinterrogation, the time lapsed between theinitiation of the custodial interrogation and theimplementation of Miranda warnings amounted toa matter of minutes rather than hours. This Courthas made it clear that officers do not need tomirandize individuals who are not in custody3 andNavy disregards this Court’s precedent by factoringnoncustodial interview time into their calculation ofMiranda delay.

4. Navy is further distinguished from Seibertwhere Navy’s statements prior to his Mirandawarning are not identified as inadmissible. Seibertis clear that the officer erred in failing to warn thedefendant that her prior statement was notadmissible against her. In Navy, the majorityfound the first statement was admissible, but didnot determine the admissibility of Navy’s briefstatements during the alleged prewarning custodialinterrogation (which is the time period between the

3 See Orozco v. Texas, 394 U.S. 324, 327 (1969).

oral statement and the Miranda warnings). Themajority stated the officer failed to inform Navy"the answers given after the first statement butbefore the administration of Miranda warningsmay not be admissible." Navy at 6 (emphasisadded). Where Navy’s statements prior to Mirandamay or may not be admissible, Seibert does notapply. Rather, Seibert only applies when the priorconfession is clearly inadmissible.

5. Navy grossly erred by misinterpreting thefacts to find the plurality test called for exclusion ofthe Navy’s postwarning statements. Seiberttargeted circumstances that "challenge thecomprehensibility and efficacy of the Mirandawarning to the point that a reasonable person inthe suspect’s shoes could not have understood themto convey a message that she retained a choiceabout continuing to talk." Seibert at 603.

Here, Officer Smith testified that after heinformed Navy the victim had been suffocated,Navy asked if he was under arrest and the officerinformed Navy he was not under arrest. Moreover,Navy also admitted that he was told he would beback home in "couple of hours." Navy testified, "Ijust thought that they needed a quick statementfrom me and like they said they would take meback home." Contrary to Seibert, the circumstancesin Navy would allow a reasonable person in Navy’sshoes to believe he had a choice about continuing totalk.

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In finding the brief questioning of Navy roseto the level of Seibert, the Navy majority expandedthe bounds of Seibert beyond those contemplatedby this Court’s plurality in Seibert. This Courtmust redress this inappropriate expansion of theplurality test as it is an important and recurringissue.

6. Seibert’s badly fractured opinion hascreated great confusion in the federal circuit courtsand state high courts. Nationwide, courts are splitin their application of Seibert’s admissibility test.This split has led to inconsistent and unreliableresults. Navy squarely illustrates the problem ofSeibert’s uncertainty. In Navy, the majority usedan enlarged version of the plurality test to excludestatements that would have been clearly admissibleunder Justice Kennedy’s test. Moreover, the Navymajority grossly disregarded this Court’s custodystandards to find an admittedly noncustodialquestioning became a custodial interrogation. Indoing so, Navy added another layer of confusion tothe Seibert mire. Navy also stretched the prongs ofthe plurality test to exclude postwarningstatements, thereby widening the plurality holding.Ultimately, the repetition and importance of theconfusion surrounding the Seibert holding begs thisCourt for clarification. Further, Navy’sabandonment of custody precedent andunreasonable extension of the plurality test requirethis Court’s remedy.

Thegranted.

CONCLUSION

petition for writ of certiorari should be

Respectfully submitted,

HENRY McMASTERAttorney General ~ ~

JOHN W. McINTOSHChief Deputy Attorney General

SALLEY W. ELLIOTTAssistant Deputy Attorney General

By:

MICHELLE PARSONS KELLEYAssistant Attorney General ~

Salley W. E~io~Assistant Deputy Attorney GeneralOffice of the Attorney GeneralPost Office Box 11549Columbia, SC 29211(803) 734- 3727selliott@scag.gov

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