FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMILE DEWEAVER, 

Petitioner-Appellant, No. 06-16865

v. D.C. No.  CV-03-00839-MJJ DAVID L. RUNNELS, Warden, High

Desert State Prison, OPINION

Respondent-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Martin J. Jenkins, District Judge, Presiding

Argued and Submitted

November 21, 2008—San Francisco, California

Filed February 25, 2009

Before: Procter Hug, Jr., John T. Noonan and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Hug

2197
COUNSEL

Mary E. Pougiales, Novato, California, for the petitionerappellant. 

Juliet B. Haley, Deputy Attorney General, San Francisco, California, for the respondent-appellee. 

OPINION

HUG, Circuit Judge: 

Emile DeWeaver petitions for habeas relief arguing that the

California Court of Appeal erroneously concluded that he did

not invoke his right to remain silent during interrogation, his

confession was voluntary, and the state trial court’s interactions with the jury did not coerce a verdict. For DeWeaver to

succeed, he must overcome the high standard of deference to

a state-court decision mandated by the Antiterrorism and

Effective Death Penalty Act (AEDPA), under which a statecourt decision may not be reversed unless it is contrary to or

an unreasonable application of clearly established Supreme

Court precedent, or if it was based on an unreasonable factual

determination. 28 U.S.C. § 2254(d). DeWeaver cannot overcome this hurdle, and we therefore affirm the district court’s

denial of DeWeaver’s petition. 

2200 DEWEAVER v. RUNNELS
I. Standard of review

We review the federal district court’s decision to deny

DeWeaver’s habeas petition de novo. See Lopez v. Thompson,

202 F.3d 1110, 1116 (9th Cir. 2000) (en banc). “When

reviewing a state court’s analysis under AEDPA, this court

looks to the last reasoned decision’ as the basis for its judgment.” Forn v. Hornung, 343 F.3d 990, 995 (9th Cir. 2003)

(quoting Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)).

In this case, because the California Supreme Court denied

DeWeaver’s appeal without citation or comment, we look to

the California Court of Appeal’s decision as the basis for the

state’s judgment. See Taylor v. Maddox, 366 F.3d 992, 999

n.5 (9th Cir. 2004). Insofar as the state appellate court

adopted the reasoning of the state trial court, we also consider

the trial-court decision. See id.

An application for writ of habeas corpus shall not be

granted unless the state court’s judgment “(1) resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States; or (2) resulted in

a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d). A state-court decision contravenes clearly established Supreme Court precedent

if it reaches a legal conclusion opposite the Supreme Court’s

or concludes differently on an indistinguishable set of facts.

Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The state

court need not have cited Supreme Court precedent or been

aware of it, “so long as neither the reasoning nor the result of

the state-court decision contradicts [it].” Early v. Packer, 537

U.S. 3, 8 (2002). The state court unreasonably applies clearly

established federal law if it “either 1) correctly identifies the

governing rule but then applies it to a new set of facts in a

way that is objectively unreasonable, or 2) extends or fails to

extend a clearly established legal principle to a new context

in a way that is objectively unreasonable.” Hernandez v.

DEWEAVER v. RUNNELS 2201
Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see also Williams, 529 U.S. at 408-09. We must defer to the state court’s

factual findings unless a defect in the process is so apparent

that “any appellate court . . . would be unreasonable in holding that the state court’s fact-finding process was adequate.”

Taylor, 166 F.3d at 1000.

II. DeWeaver’s confession

DeWeaver argues that the state appellate court decided contrary to federal law when it concluded that he had not invoked

his right to remain silent. He contends that by asking to go

back to his jail cell, he invoked his privilege against self

incrimination. At that point, DeWeaver argues, under

Miranda v. Arizona, 384 U.S. 436 (1966), police were

required to cease the interrogation and return him to the jail.

He then argues that even if there was no violation of Miranda,

his confession was involuntary because of the coercive techniques used by the police interrogators. We first address

DeWeaver’s argument that the police officers violated the rule

in Miranda, and then his argument regarding the voluntariness of his statement.

A. Factual and procedural background

DeWeaver and another man were charged with first-degree

murder, and DeWeaver was charged with attempted firstdegree murder for two shootings in Oakland, California. Two

days after the shootings, police encountered DeWeaver smoking marijuana in a parked car. In the car, officers discovered

narcotics and two loaded handguns; they arrested DeWeaver

for possession of the drugs and firearms and informed him of

his rights under Miranda. DeWeaver told the officers that he

did not wish to give a statement and he was not questioned at

that time. 

Over the course of two or three days, testing revealed that

the bullets recovered from the shootings in Oakland had been

2202 DEWEAVER v. RUNNELS
fired by the guns found with DeWeaver in the car, and witnesses to the shootings identified DeWeaver as a shooter in

photographic line-ups. Homicide Sergeant Ersie Joyner transported DeWeaver from the jail to the police department to

question him about the shootings. Sergeant Joyner and

DeWeaver both testified that on the morning of the interrogation, DeWeaver was picked up by a police officer at North

County jail and driven to the police station where he was

placed in an interrogation room. Police officers asked

DeWeaver if he would like something to eat, brought him

some food, and left him alone in the interrogation room for an

hour before beginning the interview. At this point, the two

accounts diverge. 

DeWeaver testified that as soon as the officers entered the

interrogation room, he asked them if they were Alcohol

Tobacco and Firearms agents. When they said no, they were

homicide detectives, DeWeaver remembered immediately

replying, “I don’t want to talk to you.” When the detectives

asked him why, DeWeaver testified that he told them: “I don’t

want to talk to you, you’re homicide detectives, you investigate homicides.” He could not remember what Joyner said in

response, but testified that he then asked them to “take [him]

back to North County.” According to DeWeaver, Joyner

“asked me to hear him out, and after I finish hearing him out,

if I still want to go back to North County he’d take me.” 

DeWeaver’s account continued with Joyner telling him that

the guns with which he had been arrested were linked to the

shootings, numerous witnesses had identified him as the

shooter, and the person who drove him to the scene of the

shooting had confessed. At that point, DeWeaver said he felt

confused and scared; he did not know what to do or what to

think. But he asked to see the photographic line-ups from

which the witnesses had identified him. He testified that he

looked at them and then said, “Okay, I heard you out and I

want to go back to North County now.” 

DEWEAVER v. RUNNELS 2203
Although he was unclear of the timing, he testified that he

repeatedly asked to make a phone call, to go back to jail, and

told the interrogators that he did not want to talk to them.

Overall, DeWeaver attempted to paint a picture of a coercive

interrogation, even going so far as to testify, “by the time I

made that statement, I no longer had the decision making

skills to refuse to do it because it was like, I guess I feel like

my will was overborne.” He said that he was overwhelmed

with fear for his girlfriend, their unborn child, his father, and

his brother because one of the victim’s family members might

retaliate. DeWeaver alleged that Joyner told him if he made

a statement the police could protect his family. DeWeaver

also claimed that Joyner told him that if he did not make a

statement he would look like a cold-blooded killer, but that if

he did the judge might be lenient. 

In contrast, Joyner described a non-remarkable police interrogation. Joyner testified that he and his partner came into the

interview room, talked to DeWeaver about his name, birth

date, and living arrangements. Joyner then admonished

DeWeaver of his Miranda rights by reading to him from the

standardized form prepared by the Oakland Police Department. DeWeaver waived his rights by initialing the form next

to the waiver statements and wrote the time of the waiver next

to his initials. 

According to Joyner, DeWeaver never said that he did not

want to talk to the officers, but he did ask to go back to jail.

At the preliminary hearing, Joyner testified that, when they

started discussing the shootings in more detail, DeWeaver

appeared upset that he would be spending his fifth birthday in

a row in jail and asked to be returned to jail. At the Miranda

hearing, Joyner was less clear about the timing of the request,

but said that DeWeaver appeared reluctant to confront the evidence against him. In response, Joyner conveyed that returning to jail was not going to make the situation go away. He

asked DeWeaver to hear him out and told him if he still

wanted to return to jail, Joyner would take him. 

2204 DEWEAVER v. RUNNELS
Like DeWeaver, Joyner testified that he told DeWeaver

that the guns with which he been arrested fired the bullets

from the shootings, a witness had identified him as the

shooter, and the person who had been driving DeWeaver the

day of the shooting was at the station being questioned at the

same time. But, according to Joyner, he never threatened

DeWeaver or discussed possible sentences. He never promised DeWeaver leniency if he cooperated. He emphasized that

he was seeking the truth and encouraged DeWeaver to tell his

side of the story. 

In the beginning, Joyner described DeWeaver as appearing

comfortable, but as the interrogation continued, and the officers began asking questions relevant to shootings, DeWeaver

became slightly nervous. At times he was very quiet, other

times he was very talkative. At some point during the interrogation, DeWeaver expressed regret that he might be going to

jail and would not see his long-time girlfriend or their baby,

with whom she was pregnant. He expressed concern about

retaliation against his father and his brother, but Joyner denied

offering to protect DeWeaver’s family if DeWeaver made a

statement. 

Joyner’s notes reflected that he took one break during the

interrogation, when DeWeaver asked for a moment by himself to think. Joyner and his partner left the room for about ten

minutes and when they returned, DeWeaver asked to see the

photographic lineup from which he had been identified.

Within five minutes, DeWeaver began confessing his involvement in the shootings. 

After DeWeaver had discussed the shootings with Joyner,

the officers tape-recorded DeWeaver’s statement. Joyner

began the tape-recording by recounting the Miranda warnings

he had given DeWeaver earlier and asking DeWeaver to

acknowledge them. Joyner asked DeWeaver to describe the

events of the shooting and DeWeaver did so. However,

DeWeaver refused to name the person who drove him to the

DEWEAVER v. RUNNELS 2205
shooting or the other shooter, referring to them as John 1 and

John 2. Otherwise, throughout the taped statement, DeWeaver

responded to all of the officers’ questions without hesitation.

At the end of the tape, Joyner asked DeWeaver if any threats

or promises had been made to him, and DeWeaver replied

they had not. 

The state trial court found that when DeWeaver asked to be

taken back to jail in the beginning of the interrogation, the

request was not “indicative of a desire not talk.” As to voluntariness, the court found that there was no indication that

police had attempted to browbeat DeWeaver or otherwise

coerce him to make a statement. It determined that

DeWeaver’s statements that he had been brainwashed, he

lacked the necessary decision-making skills, and his will had

been overborne were not reflective of what had actually happened. The court emphasized that, during the taped statement,

he chose not to name the others involved, he corrected the

interrogating officers, and he denied being threatened or

promised anything. The trial court concluded that

DeWeaver’s statement was voluntary. 

On direct appeal, DeWeaver challenged the trial-court decision, arguing, among other things, that his request to go back

to jail was an invocation of the right to silence. The state

appellate court concluded that asking to go back to jail was

not an invocation; therefore, DeWeaver’s Miranda rights

were not violated. It also determined that DeWeaver gave the

statement voluntarily, noting that because the trial court reasonably credited Joyner’s testimony over DeWeaver’s, there

was no evidence of coercion other than the fact that it was a

custodial interrogation. Relying on Miranda, the court held

that because DeWeaver was given Miranda warnings and

signed the waiver, any coercive effect inherent in such interrogation was dispelled. People v. DeWeaver, No. A091078,

2001 WL 1515830, at *5-7 (Cal. Ct. App. Nov. 28, 2001). 

2206 DEWEAVER v. RUNNELS
DeWeaver again challenged these conclusions by filing a

timely habeas corpus petition with the federal district court;

he now appeals the district court’s denial of his petition. 

B. Alleged Miranda violation

[1] DeWeaver argues that under the Supreme Court’s opinion in Miranda, asking to go back to the jail was an invocation of his right to remain silent that the police failed to

scrupulously honor. In Miranda, the Court created procedural

safeguards to protect people against the coercive nature of

custodial interrogations. 384 U.S. at 467. The Miranda Court

required police to inform suspects of their right to remain

silent, that any statement they make may be used against

them, and of their right to the presence of retained or

appointed counsel before custodial interrogation. Id. at 444.

After detailing the requisite warnings and explaining their significance, the Miranda Court stated: “Once warnings have

been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during

questioning, that he wishes to remain silent, the interrogation

must cease.” Id. at 473-74. 

[2] In essence, DeWeaver contends that this statement in

Miranda requires interrogation to immediately cease upon

any statement by a suspect that might be interpreted as an

invocation of the right to remain silent, even if the statement

is ambiguous. The Supreme Court has not yet directly

addressed ambiguous statements in the context of the right to

remain silent. In the context of another Miranda right, the

right to the presence of an attorney during interrogation, however, the Court has held that after a valid Miranda waiver, an

invocation of that right only halts interrogation when it is

clear and unambiguous.1 Davis v. United States, 512 U.S. 452,

459-61 (1994). 

1An ambiguous, pre-waiver statement might require different analysis,

see United States v. Rodriguez, 518 F.3d 1072, 1078-79 (9th Cir. 2008)

DEWEAVER v. RUNNELS 2207
The Court recognized that a rule requiring an interrogation

to cease based on an ambiguous invocation would become a

“ ‘wholly irrational obstacle[ ] to legitimate police investigative activity’ ” because such an ambiguous statement would

not reasonably inform the interrogating officers that the suspect wanted a lawyer present. Id. at 460 (quoting Michigan v.

Mosley, 423 U.S. 96, 102 (1975)). The Court applied an

objective test, requiring a suspect to “articulate his desire to

have counsel present sufficiently clearly that a reasonable

police officer in the circumstances would understand the

statement to be a request for an attorney.” Id. at 459. In focusing on the need for effective law enforcement, the Court noted

that this bright line rule protected both the suspect’s interests

and the valid investigatory tool of proper interrogation. Id. at

461. 

[3] Since the Court’s decision in Davis, many state and federal courts have extended its rule and required suspects to

unambiguously invoke the right to remain silent before police

must halt an interrogation. United States v. Banks, 78 F.3d

1190, 1197-98 (7th Cir. 1996), vacated, Mills v. United

States, 519 U.S. 990 (1996), on remand, 122 F.3d 346, 350-

51 (7th Cir. 1997); Medina v. Singletary, 59 F.3d 1095, 1100-

01 (11th Cir. 1995); United States v. Johnson, 56 F.3d 947,

955 (8th Cir. 1995); People v. Stitely, 108 P.3d 182, 196 (Cal.

(determining that the Davis rule applies only after valid waiver, as a way

of reconciling the rule with the “historic presumption against finding

waiver of constitutional rights” and distinguishing between invocation and

waiver). Although there is some evidence suggesting that DeWeaver

requested to go back to jail before waiving his Miranda rights, he argues

on appeal that the request was made post-waiver and that any other interpretation of the evidence would be unreasonable. By considering whether

it was an invocation and not how it affected waiver, the state appellate

court treated the request as though it was made after the waiver. Because

this is a reasonable interpretation of the evidence, and DeWeaver concedes

this point, we consider his request as being made post-waiver. We do not

address whether applying the Davis rule to such a request made before a

valid waiver would be contrary to Supreme Court precedent because the

issue is not properly before us. 

2208 DEWEAVER v. RUNNELS
2005); State v. Payne, 199 P.3d 123, 133-34 (Idaho 2008);

State v. Walker, 118 P.3d 935, 943-44 (Wash. Ct. App. 2005).

This court has several times declined to decide whether the

Davis requirement of a clear and unequivocal invocation

applies to the right to remain silent. See United States v.

Rodriguez, 518 F.3d 1072, 1078 n.5 (9th Cir. 2008) (avoiding

addressing the issue and noting that this court had so

demurred in four prior cases). We similarly decline to do so

here. The question before us is not whether the Davis rule

applies to an invocation of the right to remain silent, but

whether the state appellate court contravened Supreme Court

precedent by applying it in that manner. See Williams v. Taylor, 529 U.S. 362, 405-06 (2000). 

[4] In similar circumstances, the First Circuit, which has

also withheld judgment regarding the application of Davis to

the invocation of the right to remain silent, held that it could

not “deem unreasonable a conclusion by the [state] courts . . .

that [was] consistent with the approach taken by so many

respected tribunals.’ ” James v. Marshall, 322 F.3d 103, 108

(1st Cir. 2003) (quoting Bui v. DiPaolo, 170 F.3d 232, 239

(1st Cir. 1999)). We, likewise, could not conclude that application of the Davis rule to an invocation of the right to remain

silent is contrary to or an unreasonable application of

Supreme Court precedent where the Supreme Court has neither “squarely addresse[d]” when an ambiguous statement

amounts to an invocation of the right to remain silent nor

refused to extend the Davis rule to an invocation of the right

to remain silent. Wright v. Van Patten, 128 S.Ct. 743, 746

(2008). 

[5] In this case, although the state appellate court never

expressly applied Davis’s objective inquiry in analyzing

DeWeaver’s request to return to jail, its reasoning and result

are not contrary to Supreme Court precedent.2See Early v.

2The state appellate court based its ruling on three cases: Delap v. Dugger, 890 F.2d 285, 293 (11th Cir. 1989), in which the court held, preDEWEAVER v. RUNNELS 2209
Packer, 537 U.S. 3, 8 (2002) (noting that a state-court decision is not contrary to Supreme Court precedent for failure to

cite such decisions, “so long as neither the reasoning nor the

result of the state-court decision contradicts [it]”). The state

appellate court concluded that asking to be taken back to jail

“did not evidence a refusal to talk further.” People v.

DeWeaver, No. A091078, 2001 WL 1515830, at *5 (Cal. Ct.

App. Nov. 28, 2001). In so doing, it considered that

DeWeaver said nothing about ending the interrogation or not

wanting to talk, that the officers interrogating DeWeaver

knew that he knew how to invoke his right to silence because

he had done so a few days earlier, and Sergeant Joyner’s testimony that he did not understand DeWeaver’s request to be an

invocation.3Id. The state appellate court could properly conclude from these facts that a reasonable officer in the circumstances would not have understood DeWeaver’s request to be

an invocation of the right to silence. See Davis, 512 U.S. at

459. 

Davis, that a suspect did not invoke (equivocally or otherwise) his right

to remain silent where he asked when he would be allowed to go home;

United States v. Clark, 67 F.3d 1154, 1163 (5th Cir. 1995), vacated on

other grounds, Coffman v. United States, 519 U.S. 802 (1996), in which

the court cursorily stated that questioning that continued after a suspect

asked to go home but then consented to further questioning was not coercive or improper and, even if it was, admission of the statement had been

harmless; and Mueller v. Angelone, 181 F.3d 557, 574 (4th Cir. 1999), in

which the court held that a suspect had not clearly invoked his right to

counsel under Davis when he asked the interrogating officer if the officer

thought he needed an attorney.

3The state appellate court noted that DeWeaver continued to speak with

Joyner after making the request to go back to jail, DeWeaver, 2001 WL

1515830, at *5, but we do not consider DeWeaver’s post-request

responses to further interrogation in determining whether DeWeaver’s

request was ambiguous. See Smith v. Illinois, 469 U.S. 91, 100 (1984)

(“[A]n accused’s postrequest responses to further interrogation may not be

used to cast retrospective doubt on the clarity of the initial request itself.”).

Given our conclusion that his request was ambiguous, any error in the

state appellate court’s consideration of his subsequent statements was

harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).

2210 DEWEAVER v. RUNNELS
[6] Thus, the state appellate court’s reasoning and result are

in accord with Davis and a reasonable extension of that rule

to the right to remain silent. In such a case, AEDPA requires

us to let stand the state court’s ruling that no Miranda violation required suppression of DeWeaver’s statement. See

Early, 537 U.S. at 8; 28 U.S.C. § 2254(d). 

C. Voluntariness

[7] A confession must be suppressed, even absent a

Miranda violation, when the totality of the circumstances

demonstrates that the confession was involuntary. Dickerson

v. United States, 530 U.S. 428, 434 (2000). However, if interrogators obtained a confession after Miranda warnings and a

valid waiver, the confession was likely voluntary. See Missouri v. Seibert, 542 U.S. 600, 608-09 (2004) (“[G]iving the

warnings and getting a waiver has generally produced a virtual ticket of admissibility.”); Berkemer v. McCarty, 468 U.S.

420, 433 n.20 (1984) (“[C]ases in which a defendant can

make a colorable argument that a self-incriminating statement

was ‘compelled’ despite the fact that the law enforcement

authorities adhered to the dictates of Miranda are rare”). 

[8] In his petition, DeWeaver makes no argument that the

Miranda warnings given were insufficient or that his waiver

was involuntary. Instead he relies on his account of a coercive

interrogation and vague allegations that his “will was overborne.” The state courts discredited DeWeaver’s version of

the interrogation as coercive, noting DeWeaver’s own statement that Joyner made no threats or promises. People v.

DeWeaver, No. A091078, 2001 WL 1515830, at *6-7 (Cal.

Ct. App. Nov. 28, 2001). Believing Joyner’s account of the

interrogation, the court noted that the remaining vague allegations of coercive techniques consisted only of the coercion

inherent in a custodial interrogation, which is dispelled by

sufficient Miranda warnings and waiver. Id. Because warnings were given, a valid waiver obtained, and the record gives

no indication that his confession was other than a product of

DEWEAVER v. RUNNELS 2211
his free will, we conclude that the state appellate court’s decision was not contrary to Supreme Court precedent or an “unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(2). 

III. The “chocolate cake caper”

DeWeaver next challenges the trial judge’s interactions

with the jury during deliberations, culminating in his “chocolate cake caper” jury instruction. The instruction was an illustrative hypothetical about his niece, Amy, stealing a piece of

chocolate cake. DeWeaver argues that the state appellate

court made an unreasonable factual determination when it

found no indication of coercion and decided contrary to

Supreme Court precedent in holding that the interactions were

not coercive. We address each argument in turn. 

A. Factual and procedural background

When deliberations began, the jury requested that the trial

judge clarify the definitions of “unambiguous” and “conscious disregard for human life,” and inquired, “What are

[the] options if we are [at] an impasse? We have a juror who

is not cooperating.” Before receiving a response, the foreperson sent another note: “I am requesting an immediate audience with the judge, as one juror’s conduct is hindering the

progress of this panel . . . .” 

The judge granted the foreperson an audience during which

the foreperson revealed that one juror was not open to the

suggestions of the other jurors and was making what the

foreperson considered to be snappy retorts and insulting comments. The judge then re-instructed the entire jury regarding

the definition of “conscious disregard.” He also admonished

the jury:

The People and the defendant are entitled to the

individual opinion of each juror. Each of you must

2212 DEWEAVER v. RUNNELS
consider the evidence for the purpose of reaching a

verdict if you can do so. Each of you must decide the

case for yourself but should do so only after discussing the evidence and the instructions with the other

jurors. 

Do not hesitate to change an opinion if you are

convinced it is wrong. However, do not decide any

question in a particular way because a majority of

the jurors or any of them favor that decision . . . . 

Remember that you are not partisans or advocates

in the matter. You are impartial judges of the facts.

The integrity of a trial requires jurors at all times

during they’re [sic] deliberations to conduct themselves as required by these instructions.

Accordingly, should it occur that any juror refuses

to deliberate or expresses an intention to disregard

the law or to decide the case based on penalty or

punishment or any other improper basis, it is the

obligation of the other jurors to immediately advise

the court of the situation. 

The jury returned to deliberate further. 

The next day, the foreperson asked if the judge would provide a further definition of “jury deliberation” to help convince the juror to deliberate. The judge asked the foreperson

to explain what about the juror’s behavior indicated to the

foreperson that he was refusing to deliberate. The foreperson

described the juror as ignoring the conversation in the rest of

the jury and refusing to explain his positions, with which the

other jurors disagreed, using specific facts. The foreperson

noted that the one juror appeared to disagree with the other

jurors’ interpretations of the instructions. When asked, the

foreperson was clear that the juror was not basing his opinion

on an agenda or personal philosophy. 

DEWEAVER v. RUNNELS 2213
Because the disagreement seemed to center on the interpretation of certain instructions, the judge asked the foreperson

to return to the jury and create a list of terms on which it

needed clarification. After the foreperson returned to the

deliberation room to create the list, DeWeaver objected to the

court giving further definitions of terms, calling them “more

items to hit [the holdout juror] over the head with.” The government argued that the holdout juror should be removed for

refusing to deliberate. The court said it would not refuse to

define terms for the jury and would take a “wait and see”

approach to determining if the holdout juror was refusing to

deliberate. 

Over the weekend, the court received another note from the

foreperson and a note from the holdout juror. The foreperson’s note asked the court to define “deliberate,” “premeditation,” “reasonable doubt,” “circumstantial evidence,” “intent,”

and “intentional.” It also noted that “some jurors are ready to

walk if progress does not occur regardless of the consequences.” The holdout juror’s note denied the foreperson’s

allegation that the juror was being belligerent or failing to

deliberate and stated that other jurors had conducted themselves contrary to the court’s instructions. As a separate issue,

the court had to replace a juror who had been in a car accident

with an alternate. 

The court instructed the jury that because an alternate had

replaced a juror, it had to start over with its deliberations. The

court suggested that the jury consider choosing a new foreperson (while emphasizing that it was not a comment on the current leadership) and asked the jury to reconsider the list of

terms it needed defined. At that time the court also discussed

the “jurors walking” comment:

That type of [ ] planning obviously is rather sharp,

it’s rather confrontational, and it sets a tone that

obviously gives concern to all of us. It is important

that everybody deliberate with an open mind. It’s

2214 DEWEAVER v. RUNNELS
also imperative that you keep in mind that you are

not advocates, you are not partisans, you are judges

of the facts, and with that approach and with that in

mind and with all the other instructions that I’ve

given you, when — you know, these are difficult

issues, we understand that and we appreciate that.

And sometimes one’s patience grows short and

sometime personalities can get involved in the deliberations and take greater precedent over the issues

that are — everybody’s there to deal with. 

The court adjourned the jury but asked the holdout juror to

remain. 

The holdout juror accused the other jurors of considering

improper bases like DeWeaver’s co-defendant’s conviction,

personal knowledge of the crime scene, and the potential penalty. He further stated that the other jurors had commented

that the defense had failed to prove its case. The holdout juror

stated that he had told the rest of the jurors that what they

were doing was improper and for the most part it stopped. The

court then asked the juror to return to the jury and send down

the foreperson. The foreperson confirmed that some impermissible bases had come up in the conversation, but that once

he had noted the improprieties the jury had moved on without

further considering such improper bases. At the end of his discussion with the foreperson, the court explained that it would

define the requested terms for a jury in a presentation the next

day. 

In defining the terms, the court used an expanded version

of the “chocolate cake caper” hypothetical to illustrate the

terms. The story, which fills 20-pages of transcript, was well

summarized by the state appellate court:

In [the] original version, the court had recounted

the story of a dinner at which his young niece Amy

repeatedly insisted on having some chocolate cake

DEWEAVER v. RUNNELS 2215
right away but was told by her mother she would

have to wait until after dinner. When the mother subsequently went into the kitchen to check on dinner,

she discovered a chair had been pulled from the

kitchen table to the counter where the cake was and

that there was an irregular hole in the cake. The

court discussed these facts, as well as cake crumbs

and frosting found on Amy’s face, as circumstantial

evidence that she had taken and eaten some of the

cake. The court also explained that if the mother saw

Amy standing on the chair, eating the cake, her testimony about her observations would be direct evidence. Addressing intent, the court explained that

intent could be determined by statements made at or

near the time of the incident and the circumstances

surrounding the act. Returning to Amy, the court

noted her intent could be inferred from her statement

that she “wanted cake and wanted it now,” from the

chair having been moved, and from a child-sized

gouge in the cake. 

During deliberations, the court presented an

expanded version of this hypothetical. Again the

court explained how Amy’s intent could be inferred

from statements and circumstances surrounding the

act. The court hypothesized that the cake theft

required premeditation and deliberation, which, it

observed, were shown by Amy’s statement that she

wanted the cake now and by her having moved and

climbed on a chair to reach it. The court similarly

related its hypothetical to the reasonableness of two

possible explanations for the cake on Amy’s face

and hands. Suppose, the court hypothesized, Amy

said she had moved the chair and climbed up to simply look at the cake, and then lost her balance and

fell on the cake. Relating the child’s explanation to

the [form] instruction (CALJIC 2.02) involving two

reasonable interpretations of circumstantial evi2216 DEWEAVER v. RUNNELS
dence, the court stated that Amy’s interpretation was

unreasonable in light of the evidence: Amy’s earlier

demand for cake, the hole gouged in it, the cake on

her face and hands, and that she was chewing when

discovered. 

Turning to the jury’s request for clarification of

“unambiguous intent” in the context of attempted

murder, the court defined unambiguous as “clear,

definite, susceptible of but one meaning, to unequivocally show an intent to kill.” Again referring to the

Amy story, the court added to the hypothetical that

Amy (1) enlisted her little sister to help “get some

cake”; and (2) was caught red-handed just as she

started to grab it. The court stated: “[Y]ou look at

her conduct, you can consider her statements before

or at the time of the act itself. That shows her intent.

You look at the means that are utilized, the manner

in which the act is done, and the totality of the circumstance[s]. That shows a clear intent to do the one

thing that logically makes sense. [¶] I mean, one

could say, well, maybe she was just trying to see

how close her finger could get. That doesn’t make

sense.” 

People v. DeWeaver, No. A091078, 2001 WL 1515830, at *8

(Cal. Ct. App. Nov. 28, 2001). 

After giving this expanded illustration, the trial judge

admonished the jury to consider his story in the light of the

other instructions and reminded the jurors of their duties. Specifically, he said:

Please do not construe my explanation to be a comment by me on the evidence or a suggestion on what

you should find to be the facts. Please remember that

you are the exclusive judges of the facts and you

DEWEAVER v. RUNNELS 2217
may disregard any or all of my comments if they do

not coincide with your views of the evidence. 

Finally the judge reminded the jury: “Do not hesitate to

change an opinion if you are convinced it is wrong. However,

do not decide any question in a particular way because a

majority of the jurors or any of them favor that decision.”

Without further interaction with the judge, the jury returned

its guilty verdict later that day. 

On direct appeal, the state appellate court determined:

“[T]he record of the court’s inquiries into the questions and

problems reported by the jurors reveals a prudent, reasonable

and balanced course of action. We search the record in vain

for any indication of coercion, express or implicit . . . .”

DeWeaver, 2001 WL 1515830, at *9 n.7. However, because

the hypothetical presented only situations in which Amy was

guilty, the court concluded that it had a prosecutorial slant. Id.

at *10. In deciding that any such error was harmless, it considered whether the instruction denied DeWeaver a fair trial.

Id. The appellate court emphasized that the jury instruction

correctly stated the law, the trial judge advised the jury not to

use the instruction as a comment on the evidence, the facts of

the hypothetical were very different from the facts of the

shootings, the timing of the verdict did not indicate it was

induced, and guilt or innocence was not a close factual issue.

Id. at *10-11. 

B. The state court’s factual determinations

DeWeaver argues that the state court ignored material evidence in determining that the record contained no indication

of coercion. He argues that, as a result, the state court’s factfinding process was defective and its decision based on an

unreasonable determination of the facts. In Taylor v. Maddox,

366 F.3d 992, 1000 (9th Cir. 2001), on which DeWeaver

relies, this court cautioned that “before we can determine that

the state-court fact-finding process is defective in some mate2218 DEWEAVER v. RUNNELS
rial way . . . , we must be satisfied that any appellate court to

whom the defect is pointed out would be unreasonable in

holding that the . . . fact-finding process was adequate.” In

Taylor, this court determined that no reasonable appellate tribunal would ignore the testimony of a witness that corroborated the petitioner’s version of challenged events. Because

the state court had blatantly ignored such probative evidence,

this court set aside its findings as unreasonable. Id. at 1005-

07. 

In contrast, DeWeaver disagrees with the state court’s

interpretation of the record but does not point to any material

fact that the court failed to consider. The state appellate court

accurately recounted the trial court’s interactions with the

jury; nothing in the record indicates that its fact-finding process was unreasonable. Insofar as DeWeaver argues that the

state appellate court failed to properly weigh the evidence, we

consider this further in analyzing whether the court’s legal

conclusion regarding coerciveness was contrary to or an

unreasonable application of Supreme Court precedent. 

C. Alleged coerciveness of the instruction

[9] DeWeaver argues that the “chocolate cake caper”

instruction was so coercive that it constituted directing a verdict. “Any criminal defendant . . . being tried by a jury is entitled to the uncoerced verdict of that body.” Lowenfield v.

Phelps, 484 U.S. 231, 241 (1988). Thus, an instruction is

unconstitutionally coercive if it denies a defendant the due

process right to a trial by a fair and impartial jury. See id. That

right is not violated when the judge gives a so-called Allen

charge, named for Allen v. United States, 164 U.S. 492, 501-

02 (1896), which encourages a dissenting juror to give weight

to the views of the majority. To determine whether an instruction is coercive, the Court “consider[s] the supplemental

charge given by the trial court in its context and under all the

circumstances.’ ” Lowenfield, 484 U.S. at 237 (quoting Jenkins v. United States, 380 U.S. 445, 446 (1965) (per curiam)).

DEWEAVER v. RUNNELS 2219
In a case similar to this one, Early v. Packer, 537 U.S. 3

(2002), the Supreme Court reversed a grant of habeas, determining that the California court had reasonably concluded an

instruction was not coercive. In that case, the jury deliberated

for 28 hours before one juror asked to be removed from the

jury. The foreperson accused that juror of failing to deliberate

in a note that said, “nearly all my fellow jurors questio[n] her

ability to understand the rules and her ability to reason.” Id. at

4. The court read that note aloud to the entire jury, instructed

it that the one juror had the right to disagree with the rest of

the jurors, inquired as to the latest vote count, and admonished the jury to consider the law as instructed and the facts

as they found them. The next day, the one juror again asked

to be removed, but the court insisted she continue trying to

deliberate. The jury returned a guilty verdict after two more

days of deliberation. Id. at 4-6. The Supreme Court upheld the

state appellate court’s determination that no coercion had

occurred, concluding that it was neither contrary to nor an

unreasonable application of Supreme Court precedent. Id. at

11. 

In many ways, the facts of this case are not sufficiently distinguishable from those in Early to warrant a different result.

Although DeWeaver argues that the state court ignored how

the trial court singled out the holdout juror and inquired into

the deliberative process, the trial court in this case did no

more in that regard than the court in Early. The only distinction between the two cases is the forty-five minute “chocolate

cake caper” instruction, which the state appellate court concluded was prosecutorially slanted because it only presented

hypothetical situations in which the suspect was guilty.4 The

4DeWeaver also argues that the state court improperly applied harmless

error analysis to this instruction, alleging that the error was structural.

DeWeaver does not argue that a prosecutorial slant alone is structural error

but that a coercive jury instruction would be structural error. Because we

conclude that the state court reasonably determined that the instruction

was not coercive, we do not reach the question of whether a coercive

instruction would be structural error. 

2220 DEWEAVER v. RUNNELS
state appellate court considered the instruction an attempt to

respond to the jury’s concerns and questions about the law,

lauding its goal of explaining the law in an understandable

manner while warning that such explanations must be evenly

balanced. The court concluded that the instruction properly

stated the law and, most importantly, that it did not deprive

DeWeaver of his right to a fair trial. DeWeaver, 2001 WL

1515830, at *9-11. 

[10] Although the state court performed its fair-trial analysis in the context of harmless error, its analysis was consistent

with Lowenfield, in which the Court describes an unconstitutionally coercive jury instruction as one that deprives a defendant of due process. 484 U.S. at 241. The state appellate court

properly considered the totality of the circumstances surrounding the trial judge’s interactions with the jury, emphasizing that the trial judge correctly instructed the jury on the

law, advised the jury not to use the instruction as a comment

on the evidence, and employed hypothetical facts very different from the facts of the shootings. DeWeaver, 2001 WL

1515830, at *10. Neither the court’s reasoning nor result were

contrary to Supreme Court precedent; therefore, we must let

the state court’s decision stand. See Early, 537 U.S. at 8. 

IV. Conclusion

In conclusion, DeWeaver fails to demonstrate any way in

which the state-court decision unreasonably applied or was

contrary to Supreme Court precedent. Nor does he establish

that the state court decision was based on an unreasonable

factual determination. The state court reasonably concluded

that Miranda was not violated and that DeWeaver’s confession was voluntary. Its decision regarding the allegedly coercive jury instruction was not based on an unreasonable

determination of the facts, nor were its conclusions concerning coercion contrary to Supreme Court precedent. Therefore,

we affirm the district court’s denial of the habeas petition. 

AFFIRMED.

DEWEAVER v. RUNNELS 2221