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Smiley v. Thurmer

September 5, 2008


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 03 C 656- Lynn Adelman, Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge.


Before RIPPLE, MANION and TINDER, Circuit Judges.

Eric Smiley was convicted of first degree intentional homicide, in violation of Wisconsin Statutes §§ 940.01(1), 939.63(1)(A) (1997). The Court of Appeals of Wisconsin affirmed his conviction and sentence on direct review, and Mr. Smiley exhausted his state habeas remedies. Mr. Smiley then filed in the district court a petition under 28 U.S.C. § 2254 for a writ of habeas corpus. The district court granted the writ. The State of Wisconsin (the "State"), through Warden Michael Thurmer, timely filed a notice of appeal.

For the reasons set forth in this opinion, we affirm the judgment of the district court.


A. Facts

Mr. Smiley lived with his grandmother, his sister, Monica Walters, and Walters' boyfriend, Christopher Garrett. On the morning of June 6, 1997, Walters discovered the dead body of Garrett blocking the front door. She called the police, who initially believed that Garrett had been the victim of a burglary homicide; they surmised that Garrett had been shot five times and that the shooting had occurred around midnight. After the police spoke with Walters and with her grandmother, they expressed an interest in speaking with Mr. Smiley. The police claim that they were interested in speaking with Mr. Smiley because he lived in the home with Garrett, not because he was a suspect.

Upon discovering that they wanted to speak with him, Mr. Smiley telephoned the police. The police told him to remain at his location, and they immediately dispatched three squad cars to pick him up. According to Mr. Smiley, the police arrived within five minutes of his phone call. The police discovered that Mr. Smiley had an outstanding municipal court warrant, and they formally arrested him based on that outstanding warrant. Mr. Smiley explains, however, that they did not inform him of the reason for his arrest.

1. The First Statement

After arresting Mr. Smiley, the police locked him in a holding cell in the police station. At about 5:00 p.m., the detectives investigating the Garrett shooting escorted Mr. Smiley from the holding cell to an interview room. The detectives told him that, although he was not a suspect, they wanted to question him about Garrett's shooting. It is undisputed that the detectives did not give Mr. Smiley a Miranda warning at this time.*fn1

The detectives had noticed that Mr. Smiley had a "significant" and "very noticeable" limp, R.15, Ex. W at 70, and they asked him about it; Mr. Smiley stated that he had tripped the previous day and injured his knee. The detectives also noticed an abrasion on his forehead and another on his left hand. When asked about these injuries, Mr. Smiley said that he did not know how he had acquired them.

The police questioned Mr. Smiley about Garrett's shooting. Mr. Smiley denied any knowledge of the shooting, but he related that burglars had broken into his grandmother's home on several occasions. Mr. Smiley further said that Garrett had not mentioned having problems with anyone. Mr. Smiley also told the officers that he did not know of anyone who would want to harm Garrett. Mr. Smiley claimed that he had spent the night at a friend's house. He explained that he had last spoken to Garrett the previous afternoon and that he did not learn about the shooting until sometime after 1:00 p.m. the next day, June 6. He denied owning a handgun, and he stated that he had not handled a gun since his arrest on a weapons charge in Chicago six years earlier.

On several occasions, Mr. Smiley attempted to rise from his chair; each time the detectives ordered him to sit down. After about seventy-five minutes of questioning, the detectives left the interview room for a few minutes. Upon returning, they noticed that Mr. Smiley had what appeared to be blood on his jacket and boots. The detectives asked Mr. Smiley about it, and he explained that his girlfriend had given him the jacket and that, if there was blood on it or on his boots, he had no idea how it had gotten there. The detectives asked Mr. Smiley to remove the articles so that they could test them for blood. At some point, the detectives also had Mr. Smiley remove his clothes and gave him a white coverall to wear. At this point, the detectives observed a bite mark on his back; Mr. Smiley denied knowing how it had happened.

The detectives exited the room with his jacket and boots. Upon returning, they told Mr. Smiley that they had found blood on the articles, and they demanded to know where it had come from. Again, Mr. Smiley said that he did not know how the blood had gotten there. The detectives told Mr. Smiley that they knew that he was lying because the blood was Garrett's and that they therefore knew that he had killed Garrett. Mr. Smiley nevertheless continued to deny any involvement in Garrett's death, but he began to cry. At approximately 8:00 p.m., the detectives told Mr. Smiley that he was under arrest for the Garrett homicide; they left him alone in the interview room for the next four to five hours (except for the taking of additional photographs). The detectives still did not give Mr. Smiley a Miranda warning.

2. The Second Statement

At 12:45 a.m., the detectives returned to the interview room and, for the first time, informed Mr. Smiley of his Miranda rights. Soon thereafter, Mr. Smiley confessed to having killed Garrett in self-defense.

In his confession, Mr. Smiley told the detectives that he had not socialized with Garrett and, although he did not know very much about Garrett, he thought that Garrett had treated his sister well. Several months ago, Mr. Smiley explained, some items had gone missing in the house, including jewelry, money and a .22 caliber handgun that Mr. Smiley owned. Mr. Smiley subsequently purchased another gun, a .38 caliber, to replace the missing one. Mr. Smiley suspected that Garrett might have stolen these items, although he had never confronted Garrett or voiced his concerns to his sister.

Mr. Smiley stated that, on June 5, he went into the bedroom that Walters shared with Garrett and saw the stolen gun, fully loaded. He took the gun, went into the living room and laid it on an end table. Mr. Smiley told Garrett, "I found my gun, now where is my diamond ring," referring to a ring that he suspected that Garrett had stolen. R.15, Ex. W at 44. Mr. Smiley recounted that Garrett then told him, "I don't know nothing about your ring." Id. At this point, Mr. Smiley and Garrett both became angry; Garrett pushed Mr. Smiley, and Mr. Smiley hit Garrett back. A struggle ensued, and, according to Mr. Smiley, the 260-pound Garrett managed to get him in a bear hug around the top part of Mr. Smiley's back that bent Mr. Smiley over in a forward position. Garrett swung Mr. Smiley around, a maneuver that resulted in Mr. Smiley's injured knee. Garrett also bit Mr. Smiley in the back. Mr. Smiley explained to the detectives that he could not breathe and began to fear that he would pass out. Mr. Smiley reached for a .38 caliber handgun tucked into his waistband and fired it into Garrett's left leg. Garrett released Mr. Smiley and stumbled backward.

After taking a few steps backward, however, Garrett lunged for the .38 caliber gun that Mr. Smiley was holding. Mr. Smiley fired two additional shots at Garrett, who again fell backward. Mr. Smiley then saw Garrett attempt to reach the .22 caliber handgun that was still on the end table. Mr. Smiley claimed that, when he saw Garrett working the slide action of the handgun to chamber a round, he believed that Garrett was going to kill him. As Garrett turned toward him, Mr. Smiley fired two final shots at Garrett. Mr. Smiley claimed that, when he realized that ...

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