Monday, January 31, 2005

Circuit Vacates Grant of Habeas Based on Prosecution's Use of Incriminating Statement Obtained during Un-Mirandized Pedigree Questioning of Defendant

Jose Rosa v. Frank McCray, Docket No. 04-2188 (2d Cir. Jan. 27, 2005) (Miner, Cabranes, and Straub) (Op. by Miner) (Dissent Op. by Straub)

Facts: On September 5, 1997, the victim ("V") was robbed at gunpoint by two men. V subsequently went to the police and described one of the robbers -- the one carrying the gun --as having "brown hair, with the ends slightly lighter."

The following day, V saw petitioner Rosa standing on the sidewalk. Though Rosa's hair appeared to be blonde, V identified him as the man who robbed her at gunpoint. V called the police, who promptly arrested Rosa.

At the police station, the same detective who had interviewed V the previous day asked Rosa a series pedigree questions while completing the on-line booking form. These questions were not preceded by Miranda warnings. "As to Rosa's hair color, [the detective] -- noticing that Rosa's hair was bright blonde, including the roots -- asked Rosa: 'What is your real hair color?'" Unfortunately, Rosa responded: "Brown. I colored my hair yesterday." (emphasis added).

During a hearing to determine whether the statement could be admitted, the detective admitted that he had spoken with the V the day before Rosa's arrest, and that she had described the gun-toting robber as having brown hair. However, the detective denied that he had intended to elicit incriminating information by asking Rosa the question regarding his "real hair color," claiming instead that he simply wanted "to ascertain the correct color of arrestee's hair" to complete the on-line booking form.

The trial judge allowed the statement to be introduced at trial, and the prosecutor emphasized it to the jury as evidence of Rosa's consciousness of guilt. Apart from this statement, the only other evidence offered by the state was the V's testimony pointing to Rosa as the robber. No physical evidence was introduced. The jury convicted Rosa.

After exhausting his state remedies, Rosa filed a § 2254 petition in the S.D.N.Y. Judge Motley granted the writ, finding that the detective should have known that his inquiry regarding the natural color of Rosa's hair was reasonably likely to evoke an incriminating response from Rosa, and therefore that Miranda warnings should've been given beforehand. Judge Motley also found that the erroneous admission of Rosa's statement was not harmless.

Held: The Second Circuit reversed. The Court began by noting the seeming tension between the rule of Miranda, which requires the now-familiar warnings whenver the police engage in "interrogation" -- i.e., conduct "that th[ey] should know are reasonably likely to elicit an incriminating reponse from the subject" -- and the rule permitting pedigree questioning following arrest without a prior Miranda warning. Resolving this potential tension, the Court ruled that "recognizing a booking exception to Miranda does not mean . . . that any question asked during the booking process falls within that exception." Rather, the Miranda rule applies even to pedigree questions: "The police may not ask questions, even during booking, that are designed to elicit incriminating questions." And to determine whether the police violated Miranda during pedigree questioning requires an "objective inquiry: Under the circumstances, should the police have known that asking the pedigree questions would elicit incriminating information?" The subjective intent of the detective or officer, though relevant to the inquiry, is not conclusive.

Applying this rule, Judge Miner found that (1) the incriminating information provided by Rosa in his response to the detective's question concerned when he dyed his hair, not his true hair color; and (2) the detective could not reasonably have expected that Rosa would volunteer this bit of information when he simply asked, "What is your real hair color?" Although the detective reasonably should have expected Rosa to provide an answer concerning his real hair color, Judge Miner explained, "[t]he fact that Rosa's hair was dyed a different color was not necessarily incriminating." Rather, the incriminating information -- volunteered by Rosa -- "was the fact that he had dyed it recently -- indeed, on the day of the robbery." (emphasis in original). And because "Rosa offered the critical piece of timing-related information voluntarily and outside the scope of the question" posed by the detective, who "could not reasonably have expected Rosa to offer [this] additional inculpatory information," the statement was admissible despite the lack of Miranda warnings.

Judge Straub dissented, disagreeing with Judge Miner on the critical issue of whether the detective reasonably should have known that his question would elicit incriminating information. Specifically, Judge Straub found that "any answer resposive to the question 'what is your real hair color?' would have constituted an 'incriminating response'." The only 2 answers Rosa could have given would both have been incriminating: (1) he could have answered truthfully that his real hair color was brown, which would've been incriminating because the V had described the robber as having brown hair; or (2) he could've lied and said that his hair was really blonde, "and the state could have used the answer against him at trial." As Judge Straub concluded, Miranda warnings were required because the detective "should have expected that his question about real hair color was likely to elicit an incriminating response because he knew -- or should have known -- that hair color was a central issue in the case."

Commentary: While I agree with Judge Straub that the majority's perception of what portion of Rosa's statement was "incriminating" is too narrow, the holding of the case is ultimately a good one for the defense. Rosa confirms that there is no true "pedigree exception" to the Miranda rule. Rather, the question is always the same: Did the police engage in questioning or conduct that, objectively viewed, would elicit incriminating information? If so, then Miranda warnings are required, even if the questioning took place within the context of booking or in the form of pedigree questioning.


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