Metropolitan News-Enterprise


Wednesday, December 9, 2015


Page 1


Ninth Circuit Rules:

Suspect Was Denied Counsel, but Not Entitled to Writ


By a MetNews Staff Writer


Police violated a 17-year old gang member’s Miranda rights by using a fake polygraph examination to induce his admission that he was present at the scene of a murder, ignoring his request for a lawyer, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel, however, ruled that Darious Mays, now serving life imprisonment without parole for first degree murder, is not entitled to habeas corpus relief. While the Third District Court of Appeal was unreasonable in holding that Mays’s inculpatory statements were admissible, it was reasonable in determining that there was no prejudice, Judge Morgan Christen wrote.

 Mays was convicted in Sacramento Superior Court with shooting and killing Sheppard Scott while Scott and his girlfriend were waiting in their car to order food at a Jack in the Box drive-through.

Surveillance cameras at a nearby AM/PM store did not capture images of the shooting, but did capture images of two individuals wearing gray and orange, and showed one of them pointing at Scott’s vehicle as it passed through the AM/PM parking lot on its way to Jack in the Box. 

When questioned by police about his possible involvement in the crime, Mays denied being present at the restaurant or being the person depicted in surveillance camera footage.

He repeatedly asked for a lie detector test. After he made the request the first time, a detective said he doubted Mays could pass such a test, whereupon Mays asked if he could call his stepfather, who “got a lawyer” for him.

Detectives administered a fake test, placing body patches connected to wires on Mays, and fabricating written results.

After the detectives showed Mays the purported results and told him he had failed the test, Mays admitted he was present at the shooting, and was the person wearing the gray sweatshirt in the AM/PM footage. But he said he knew nothing about the shooting in advance and did not participate. 

Mays told police during the taped interview, which was later played for the jury, that the perpetrator was the person in orange, whom he claimed to have just met that day and threatened him after the shooting.

He later filed a motion to suppress his statements, but the trial court denied his motion and the videotaped interview was shown to the jury.

At trial, Mays reverted to his prior claim of denying involvement at all, insisting that he had not been present when Scott was killed. He claimed he had lied to the police after supposedly failing the polygraph test and just said what he thought the police wanted to hear. 

The jury found Mays guilty. In addition to the LWOP sentence—based on a lying-in-wait special circumstance—Judge Lloyd G. Connelly imposed a consecutive term of 25 years to life for personal use of a firearm.

  In its 2009 affirmance, the Third District panel said that psychological ploys and tricks by police during the process of an interrogation do not render a resultant confession involuntary unless the tactics employed were so coercive that they were likely to produce a false confession.

Noting that polygraph tests were designed to elicit the truth and that the police had information from witnesses linking Mays to the crime, Justice Rick Sims—who has since retired—reasoned that the use of a mock polygraph test was not likely to produce a false confession from Mays.

The panel also held that Mays did not unequivocally request counsel.

Judge Lawrence Karlton of the Eastern District of California—who is also now retired—denied Mays’s writ petition, finding that the Third District’s holding on the Miranda issue was unreasonable but that its harmless-error holding was not, and thus was entitled to deference under the Antiterrorism and Effective Death Penalty Act of 1996.

Christen, writing for the Ninth Circuit, agreed.

“Contrary to the California Court of Appeal’s ruling, there is nothing ambiguous or equivocal about” Mays’s statement about why he wanted to call his stepfather, Christen wrote. The statement was “plainly a request for a lawyer,” she said, and a reasonable officer would have understood it as such.

The judge went on, however, to conclude that the Court of Appeal was reasonable in determining that the jury would have convicted Mays without hearing the challenged admissions. She cited the detective’s testimony that when he showed the AM/PM photo to Tamara Schallenberg, a neighbor who was very close to Mays, the woman identified the defendant as the person in the gray sweatshirt “without hesitation.”

Schallenberg testified at a videotaped conditional examination, which the trial judge authorized after a doctor testified that the witness could not testify at trial because of a panic disorder that would likely manifest itself if she had to appear in open court.

Christen explained:

“We agree with the California Court of Appeal that, although Schallenberg in her conditional examination ‘tried to recant the identification when she realized its effect on [Mays], . . . [this] does not diminish the impact of her original statement.’ Additionally, in both her original statement and in her conditional examination, Schallenberg said Mays told her he was present at the crime scene.”

The case is Mays v. Clark, 12-17189.


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