In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2901

ERIC SMILEY,

Petitioner-Appellee,

v.

MICHAEL THURMER, Warden,

Respondent-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 03 C 656—Lynn Adelman, Judge.

____________

ARGUED APRIL 17, 2008—DECIDED SEPTEMBER 5, 2008

____________

Before RIPPLE, MANION and TINDER, Circuit Judges.

RIPPLE, Circuit Judge. 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
2 No. 07-2901

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.

I

BACKGROUND

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
No. 07-2901 3

Miranda v. Arizona, 384 U.S. 436 (1966). 1

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. 1

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
4 No. 07-2901

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
No. 07-2901 5

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
6 No. 07-2901

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 Garrett was dead, he panicked. He moved

some items in the residence to create the appearance of

a burglary gone bad, grabbed both weapons and left.
No. 07-2901 7

Both of Mr. Smiley’s statements were admitted as a result of 2

the State’s proffer in the State’s case-in-chief. Neither the

(continued...)

At approximately 4:00 a.m., after Mr. Smiley had

finished telling the detectives what had happened, he

led them to the weapons, which he had hidden in a

friend’s basement.

B. Prior Proceedings

The State charged Mr. Smiley with first-degree intentional homicide while armed, in violation of Wisconsin

Statutes §§ 940.01(1), 939.63(1)(A) (1997). Prior to trial,

Mr. Smiley moved to suppress his first statement. In

ruling on the motion, the trial court determined that Mr.

Smiley had not been given a Miranda warning preceding

the interrogation leading up to the first statement; the

court further determined that Mr. Smiley was in custody

when he had made that statement. The court nevertheless denied Mr. Smiley’s motion because it determined

that he had been questioned as a witness, not as a suspect.

Accordingly, the trial court allowed the State to admit in

its case-in-chief all of the statements made by Mr. Smiley

during both interrogations.

Mr. Smiley’s defense at trial was that he had shot Garrett

in self-defense. Although Mr. Smiley did not testify at

trial, he based his defense on his second statement to the

detectives in which he had described the struggle between himself and Garrett. Throughout the trial, how- 2
8 No. 07-2901

(...continued) 2

State nor the state appellate court has suggested, at any point in

the proceedings, that Mr. Smiley’s reliance on the second

statement to raise the defense of self-defense affords, under

the circumstances here, an independent basis for the admission of the first statement for purposes of impeachment. The

position of the State authorities in this respect seems to rest

on a solid ground. The Supreme Court has limited the impeachment exception to Miranda, first articulated in Harris v.

New York, 401 U.S. 222 (1971), to situations in which the defendant elects to testify at trial. See Oregon v. Hass, 420 U.S. 714,

716, 720-24 (1975); United States v. Havens, 446 U.S. 620, 626-27

(1980); see also James v. Illinois, 493 U.S. 305 (1990).

Wis. Stat. § 940.01(2)(b) (“Death was caused because the actor 3

believed he or she or another was in imminent danger of death

or great bodily harm and that the force used was necessary to

defend the endangered person, if either belief was unreasonable.”).

ever, the prosecutor relied heavily on Mr. Smiley’s first

statement to depict Mr. Smiley as a liar and to argue

that Mr. Smiley’s story about acting in self-defense

could not be believed.

After the close of evidence, the trial court instructed

the jury on first-degree intentional murder and, over

Mr. Smiley’s objection, on the lesser included offense of

second-degree intentional homicide—imperfect selfdefense. During deliberations, the jury asked the trial 3

court to explain the difference between first and seconddegree intentional homicide. The jury convicted Mr.

Smiley of the former. The trial court sentenced Mr. Smiley

to life in prison with eligibility for parole after forty years.
No. 07-2901 9

The Court of Appeals of Wisconsin affirmed Mr. Smiley’s

conviction on direct review, and the trial court and court

of appeals denied his petitions for state habeas review.

The Supreme Court of Wisconsin denied Mr. Smiley’s

petitions on direct and collateral review. In all proceedings, Mr. Smiley challenged, inter alia, the trial

court’s denial of his pre-trial motion to suppress his

first statement to the police.

While his state habeas proceedings were pending,

Mr. Smiley filed in the district court a petition under

28 U.S.C. § 2254 seeking a writ of habeas corpus. The

district court stayed the proceedings until Mr. Smiley

had exhausted his state remedies. After he had done so,

Mr. Smiley returned to the district court and moved for

leave to amend his previously filed petition. The district

court permitted the amendment, and, in his amended

petition, Mr. Smiley claimed that the Court of Appeals of

Wisconsin had erred by (1) refusing to suppress a statement allegedly obtained by the police in violation of

Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny;

(2) rejecting his claim that the jury instruction concerning mitigation of the first-degree intentional

homicide based on the use of unnecessary force violated

his right to due process; and (3) dismissing his ineffective assistance of trial counsel claim.

The district court granted Mr. Smiley’s petition. It held

that the state court had been confronted with a set of facts

materially indistinguishable from those in Miranda, 384

U.S. 436, and Mathis v. United States, 391 U.S. 1 (1968), but

nevertheless arrived at a contrary result. The district court
10 No. 07-2901

further determined that this error was not harmless

because Mr. Smiley’s credibility was a critical issue in

the case and because the prosecutor repeatedly had used

Mr. Smiley’s first statement to depict Mr. Smiley as a liar.

The State timely appealed the judgment of the district

court.

II

DISCUSSION

A. Standards of Review

We review de novo a district court’s grant of a petition

for a writ of habeas corpus. Ben-Yisrayl v. Davis, 431 F.3d

1043, 1047 (7th Cir. 2005). Under the Antiterrorism and

Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L.

No. 104-132, 110 Stat. 1214 (1996), federal courts may grant

a state prisoner habeas relief only if the state court’s

adjudication of the claim

(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). The relevant state court decision is that

of the last state court to address the habeas petitioner’s

arguments on the merits, Garth v. Davis, 470 F.3d 702, 710

(7th Cir. 2006), which in this case is the decision of the

Court of Appeals of Wisconsin.
No. 07-2901 11

A state court’s decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion

opposite to that reached by [the Supreme] Court on a

question of law or if the state court decided a case differently than [the Supreme] Court has on a set of

materially indistinguishable facts.” Terry Williams v. Taylor,

529 U.S. 362, 413 (2000). A state court’s decision is an

“unreasonable application” of clearly established federal

law “if the state court identifies the correct governing legal

principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s

case.” Id. A decision also may fall within the “unreasonable

application” clause if it “either unreasonably extends a

legal principle” from existing Supreme Court precedent

“to a new context where it should not apply or unreasonably refuses to extend that principle to a new context

where it should apply.” Id. at 407. The Supreme Court

has cautioned, however, that habeas relief may not

issue unless the state court decision was incorrect and

unreasonable. Terry Williams, 529 U.S. at 411; Horton v.

Litscher, 427 F.3d 498, 504 (7th Cir. 2005).

The state court’s factual findings are presumed correct;

this presumption can be rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Miller-El v.

Cockrell, 537 U.S. 322, 348 (2003); Barrow v. Uchtman, 398

F.3d 597, 603 (7th Cir. 2005). With these principles in

mind, we turn to the decision of the Court of Appeals of

Wisconsin and the State’s arguments.
12 No. 07-2901

Exculpatory statements fall within Miranda’s ambit. Miranda,

4

384 U.S. at 444 (holding that “the prosecution may not use

statements, whether exculpatory or inculpatory, stemming

from custodial interrogation of the defendant” unless the

defendant is given warnings designed to safeguard his Fifth

Amendment rights against self-incrimination).

B. The Detectives’ Failure to Give Mr. Smiley a Miranda

Warning

The detectives gave Mr. Smiley a Miranda warning

prior to his second statement, in which he confessed to

having killed Garrett in self-defense. Therefore, we

confine our review to Mr. Smiley’s first statement in

which he denied repeatedly any involvement in the crime.4

In affirming the trial court’s denial of Mr. Smiley’s

motion to suppress his first statement, the state court of

appeals relied on State v. Armstrong, 588 N.W.2d 606 (Wis.

1999), a decision of the Supreme Court of Wisconsin.

Armstrong, in turn, relied upon the Supreme Court’s

decision in Rhode Island v. Innis, 446 U.S. 291 (1980). Under

Armstrong, the court of appeals explained, “questioning

without Miranda warnings is lawful when police have

‘no reason to know that their questions would likely

elicit an incriminating response.’ ” R.8, Ex. E at 4 (quoting

Armstrong, 588 N.W.2d at 617). The detectives’ questioning

of Mr. Smiley between 5:00 p.m. and 8:00 p.m., the time

during which he gave his first statement, “was not an

interrogation,” according to the state court of appeals, “but

simply an interview of a potential witness who police

believed may have had pertinent background informa-
No. 07-2901 13

tion to the investigation because he was a tenant in the

home where the homicide occurred.” Id. at 4-5. It was not

until 12:45 a.m., after the police had noticed the blood on

his boots and jacket and took his clothing for laboratory

analysis, that Mr. Smiley became a suspect in Garrett’s

murder. At that point, the detectives ceased the interview,

placed him under arrest for the Garrett murder and

administered a Miranda warning.

The State submits that the court of appeals’ decision was

proper under the Supreme Court’s decision in Innis. It

reads Innis as limiting Miranda to situations in which

the officers conducting a custodial interrogation might

reasonably expect the person under interrogation to

make an incriminating statement. Therefore, according

to the State: “It is simply not an unreasonable application

of Innis to find that because the police had no reason to

know that their interview would elicit an incriminating

response, Smiley’s first statement was admissible.” Appellant’s Br. at 24.

We respectfully believe that the State’s submission, as

well as the decision of the Court of Appeals of Wisconsin,

is predicated on an erroneous reading of Innis. In Innis,

the police arrested Thomas Innis for the murder of a

Rhode Island taxicab driver. Upon arresting Innis, an

officer issued a Miranda warning; Innis stated that he

understood his rights and that he wanted to speak with a

lawyer. While en route to the police station, one of the

officers told the other officer that he hoped that one of the

handicapped children from a nearby school did not find

the shotgun used in the murder. The other officer re-
14 No. 07-2901

sponded that it would be sad if a girl found the gun

and perhaps killed herself. Innis interrupted the conversation, and he told the officers that he would lead

them to the murder weapon.

The Supreme Court refused to “construe the Miranda

opinion so narrowly” as applying “only to those police

interrogation practices that involve express questioning

of a defendant while in custody.” Innis, 446 U.S. at 298-99.

It reiterated that the “concern of the Court in Miranda

was that the interrogation environment created by the

interplay of interrogation and custody would subjugate

the individual to the will of his examiner and thereby

undermine the privilege against compulsory self-incrimination.” Id. at 299 (internal quotation marks and citation

omitted). The Court further explained that the “police

practices that evoked this concern [in Miranda] included

several that did not involve express questioning.” Id.

Accordingly, the Supreme Court held:

We conclude that the Miranda safeguards come

into play whenever a person in custody is subjected to

either express questioning or its functional equivalent. That

is to say, the term “interrogation” under Miranda

refers not only to express questioning, but also to any

words or actions on the part of the police (other than

those normally attendant to arrest and custody) that

the police should know are reasonably likely to

elicit an incriminating response from the suspect. The

latter portion of this definition focuses primarily upon the

perceptions of the suspect, rather than the intent of the

police. This focus reflects the fact that the Miranda
No. 07-2901 15

safeguards were designed to vest a suspect in custody

with an added measure of protection against coercive

police practices, without regard to objective proof of

the underlying intent of the police. A practice that the

police should know is reasonably likely to evoke an

incriminating response from a suspect thus amounts

to interrogation. But, since the police surely cannot

be held accountable for the unforeseeable results of

their words or actions, the definition of interrogation

can extend only to words or actions on the part of

police officers that they should have known were

reasonably likely to elicit an incriminating response.

Id. at 301-02 (emphases supplied) (footnotes omitted).

It is clear from the language, facts and context of Innis,

that the Supreme Court defined interrogation as (1) express questioning; or (2) its functional equivalent; it

defined the latter as any statements that “the police

should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301. Thus, as the

district court explained, Innis does nothing more than

define when police practices, other than express questioning, constitute interrogation. 

The Supreme Court of the United States has made it

clear that, when an individual is subject to custodial

interrogation, the fact that the custody was initiated for

a reason other than the subject matter of the interrogation does not alter the necessity of warning the individual

of his right to silence and to the assistance of counsel.

As Justice Black wrote for the Court in Mathis v. United

States, 391 U.S. 1, 4-5 (1968):
16 No. 07-2901

There is no substance to such a distinction, and in

effect it goes against the whole purpose of the Miranda

decision which was designed to give meaningful

protection to Fifth Amendment rights.

Indeed, Miranda itself specifically says that “[b]y custodial

interrogation, we mean questioning initiated by law

enforcement officers after a person has been taken into

custody.” Miranda, 384 U.S. at 444 (footnote omitted).

Again in Beckwith v. United States, 425 U.S. 341 (1976), the

Supreme Court stressed that it was the inherently coercive

nature of the custodial setting, not the strength or content

of the Government’s suspicions, that triggered the need

for Miranda warnings. Id. at 346-47. Moreover, both

Miranda and Innis specifically note that the holding of

Miranda applies both to incriminating and exculpatory

statements. Innis, 446 U.S. at 302 n.5; Miranda, 384 U.S.

at 476-77.

It is undisputed that Mr. Smiley was “in custody”—he

had been formally arrested—and it is further undisputed

that, for three hours, he was subjected to express questioning about the Garrett shooting. The State does not

dispute that Mr. Smiley’s exculpatory statements were

given in response to the detectives’ express questioning.

Because Mr. Smiley was in custody and was subject

to express questioning, the state court of appeals had no

reason to apply the rule for “the functional equivalent” of

express questioning. See, e.g., United States v. Montgomery,

714 F.2d 201, 202 (1st Cir. 1983) (“Appellant made incriminating statements only after agent Sherman had

interjected questions. . . . Since the questioning here was
No. 07-2901 17

express, we have no occasion to go farther. This was

custodial interrogation.”). Consequently, the decision of

the court of appeals was an “unreasonable application of”

clearly established Supreme Court precedent because it

“unreasonably extend[ed] a legal principle from [Supreme

Court] precedent to a new context where it should not

[have] appl[ied].” Malinowski v. Smith, 509 F.3d 328, 335

(7th Cir. 2007) (second alteration in original).

Mr. Smiley was in custody when the police subjected

him to extensive questioning about the Garrett murder.

Under these circumstances, clearly established Supreme

Court precedent required that the detectives inform

Mr. Smiley about his Miranda rights. See Mathis, 391 U.S.

at 4 (refusing “to narrow the scope of the Miranda holding

by making it applicable only to questioning one who is ‘in

custody’ in connection with the very case under investigation”); see also Stansbury v. California, 511 U.S. 318, 322-23

(1994) (explaining that, “in determining whether an

individual was in custody, a court must examine all of the

circumstances surrounding the interrogation, but ‘the

ultimate inquiry is simply whether there [was] a ‘formal

arrest or restraint on freedom of movement’ of the degree

associated with a formal arrest’ ” (emphasis supplied)

(quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per

curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495

(1977)))); Miranda, 384 U.S. at 444. Because the detectives

failed to administer a Miranda warning at the beginning

of the first custodial interrogation, all of the statements

made by Mr. Smiley during that interrogation should

have been suppressed. Missouri v. Seibert, 542 U.S. 600, 608

(2004) (“Miranda conditioned the admissibility at trial of
18 No. 07-2901

Cf. Mitchell v. Esparza, 540 U.S. 12, 18 (2003) (per curiam) (“We 5

may not grant respondent’s habeas petition, however, if the

state court simply erred in concluding that the State’s errors

were harmless; rather, habeas relief is appropriate only if the

Ohio Court of Appeals applied harmless-error review in an

‘objectively unreasonable’ manner.”); Ben-Yisrayl v. Davis,

431 F.3d 1043, 1052 (7th Cir. 2005).

any custodial confession on warning a suspect of his

rights: failure to give the prescribed warnings and obtain

a waiver of rights before custodial questioning generally

requires exclusion of any statements obtained.” (footnote

omitted)). Accordingly, we must conclude, respectfully,

that the decision of the state court of appeals constitutes

an unreasonable application of clearly established Supreme Court precedent.

C. Harmless Error Analysis

The state court of appeals did not address the harmless

error issue. Therefore, there is no state court holding to

which we owe deference. Under these circumstances, we 5

must apply the “Brecht standard of actual prejudice.” Fry

v. Pliler, 127 S. Ct. 2321, 2326-27 (2007). To affirm the

district court’s grant of habeas relief under the Brecht

standard, we must determine that the Miranda violation had a “substantial and injurious effect or influence

in determining the jury’s verdict.” Brecht v. Abrahamson,

507 U.S. 619, 623 (1993) (adopting a standard first announced in Kotteakos v. United States, 328 U.S. 750, 764-65
No. 07-2901 19

On direct appeal, in contrast, errors are assessed under the 6

“harmless beyond reasonable doubt” standard set forth in

Chapman v. California, 386 U.S. 18, 24 (1967).

(1946)). If a reviewing court is “in grave doubt about 6

whether or not that error is harmless,” the Justices have

explained, then that court “should treat the error . . . as

if it had a ‘substantial and injurious effect or influence’ ” on

the jury’s verdict. O’Neil v. McAninch, 513 U.S. 432, 436-37

(1995) (quoting Brecht, 507 U.S. at 627); see also United States

v. Dominguez Benitez, 542 U.S. 81, 82 n.7 (2004). The harmless error inquiry asks

not what effect the constitutional error might generally

be expected to have upon a reasonable jury, but rather

what effect it had upon the guilty verdict in the

case at hand. Harmless-error review looks, we have

said, to the basis on which the jury actually rested

its verdict. The inquiry, in other words, is not whether,

in a trial that occurred without the error, a guilty

verdict would surely have been rendered, but whether

the guilty verdict actually rendered in this trial was

surely unattributable to the error. That must be so,

because to hypothesize a guilty verdict that was never

in fact rendered—no matter how inescapable the

findings to support that verdict might be—would

violate the jury-trial guarantee.

Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (citations

omitted); see also Wilson v. Mitchell, 498 F.3d 491, 504 (6th

Cir. 2007).
20 No. 07-2901

See Agnew v. Leibach, 250 F.3d 1123, 1135 (7th Cir. 2001) 7

(evaluating the importance of the improperly admitted evidence to the prosecution’s case); see also Zappulla v. New York,

391 F.3d 462, 472 (2d Cir. 2004) (discussing the “importance

of the improperly admitted evidence”).

Wis. Stat. § 940.01(2)(b) (“Death was caused because the actor 8

believed he or she or another was in imminent danger of death

or great bodily harm and that the force used was necessary

to defend the endangered person, if either belief was unreason-

(continued...)

At the outset of our analysis, we must begin by acknowledging that the improperly admitted statement was a

critical piece of evidence. At trial, Mr. Smiley never 7

denied having shot Garrett; indeed, the prosecution

introduced all of Mr. Smiley’s statements to the police.

The jury, accordingly, heard Mr. Smiley’s story about

the serious altercation between Garrett and Mr. Smiley

immediately before Mr. Smiley shot Garrett, but it also

heard Mr. Smiley’s repeated denials, prior to his confession, of any involvement in the murder. Mr. Smiley’s

sole defense, based on his confession, was that he had

shot Garrett because he had feared for his life. The jury’s

main task at trial, therefore, was to determine what

Mr. Smiley’s mental state had been when he pulled the

trigger. The Wisconsin trial court’s instructions gave the

jury several options: (1) it could reject the self-defense

theory in its entirety and convict Mr. Smiley, as it ended

up doing, of first-degree intentional homicide; (2) it

could convict Mr. Smiley of second-degree intentional

homicide, accepting a theory of imperfect self-defense; or

8
No. 07-2901 21

(...continued) 8

able.”); id. § 940.01(3) (noting that, to sustain a conviction for

first-degree intentional homicide, the burden of proof is on

the State to prove beyond a reasonable doubt that the facts

constituting the defense did not exist).

Wis. Stat. § 939.48(1) (“A person is privileged to threaten or 9

intentionally use force against another for the purpose of

preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by

such other person. The actor may intentionally use only such

force or threat thereof as the actor reasonably believes is

necessary to prevent or terminate the interference. The actor

may not intentionally use force which is intended or likely

to cause death or great bodily harm unless the actor

reasonably believes that such force is necessary to prevent

imminent death or great bodily harm to himself or herself.”).

(3) it could elect to acquit Mr. Smiley, accepting fully his

self-defense story. These instructions and Mr. Smiley’s 9

self-defense strategy make clear that Mr. Smiley’s trial

essentially was a referendum on the truthfulness of his

second statement to the police in which he described his

mental state during the struggle between himself and

Garrett. The improperly admitted statement, in which

he had lied, therefore was a key piece of evidence to a

jury that had to decide whether to believe Mr. Smiley’s

account. In short, the inadmissible statement was key to

the jury’s consideration of all three choices set forth in

the instructions. See Henry v. Kernan, 197 F.3d 1021, 1030

(9th Cir. 1999) (noting that the “State’s use of the challenged statements [obtained in violation of Miranda] went

to the root of their burden to prove beyond a reasonable
22 No. 07-2901

doubt that Henry acted with the intent required for a

conviction of first or second degree murder, and not

in self-defense”); see also DePetris v. Kuykendall, 239 F.3d

1057, 1063-65 (9th Cir. 2001) (discussing the importance

of credibility in self-defense cases and holding that an

error was not harmless because the improperly admitted

evidence affected the jury’s choice among acquittal,

imperfect self-defense or first-degree murder).

Throughout the trial, moreover, the prosecutor placed

great weight on Mr. Smiley’s inadmissible first statement,

using it to depict Mr. Smiley as an individual who, calmly

and deliberately, had devised an elaborate self-defense

story to frustrate the authorities. During his opening

statement, the prosecutor emphasized that the State

would show that Mr. Smiley had denied extensively

any involvement in Garrett’s murder but then had admitted to having done it in self-defense:

I have mentioned to you that one of the things the

defendant said was that it was self-defense. You will

hear from the detectives that initially he said I wasn’t

there. I didn’t do anything. I don’t know anything.

I don’t have anything to do with this. Later he says

well, yeah, I was there and I did have something to

do with it and I had to do it. In between . . . I didn’t

do it and I did it for a reason is an illusion.

R.15, Ex. V at 30-31. During summation, the prosecutor

repeatedly used Mr. Smiley’s first statement to impugn

Mr. Smiley’s credibility. He characterized Mr. Smiley’s selfdefense story as “illusion, deception, misdirection, lies,

calculated,” and he depicted Mr. Smiley as “cold, calm,
No. 07-2901 23

[and] calculating.” Id., Ex. X at 31-32. The prosecutor

continued:

[Mr. Smiley’s first statement] demonstrates how cool,

calm, and collected Mr. Smiley was. He tried to mislead his family by acting like a person with nothing

to hide. When told the police were looking for him,

he says, Oh, or words to this effect, you say the

police want to talk to me? Fine, no problem, and calls

the police. He then proceeds to spend an hour to two

hours with two detectives in the homicide unit giving

them a line—I have down here a line of bull—well,

a line until a chance observation of blood on his

clothes causes him to switch to plan B. Imagine that.

You’ve done what the defendant did and you

simply trot down to the police station and sit there,

and for well over an hour you describe going here,

going there, being with so and so, picking up the

snake, getting rid of the snake. That’s bold. That’s cool.

[Exhibits] 119 and 120 are the handwritten and typed

summaries of what Mr. Smiley had to say. Once it

was obvious he wasn’t going to succeed with the,

quote, an intruder burglar did it ruse, it is illogical to

believe that Mr. Smiley went from deception, illusion

and misdirection to candor, completeness and contrition. He did not do a 180 degree turn. He makes a

claim of self-defense, but there is a recurring display

of self-serving, self-preserving and self-centeredness.

The second statement contains some truth, but it

contains much that you should reject as untrue. Further, the parts that you conclude are untrue should
24 No. 07-2901

be held against Mr. Smiley. That is, people lie to

gain something. The truth leads to consequences they

view as unfavorable. The lie is intended to allow for

undeserved, favorable consequences. So when you

find a lie, don’t just ignore it. You use it to calculate

the truth because if someone’s pointing you in that

direction, that’s a lie. There is a very strong likelihood you should be looking the opposite way, but

that’s for you to reconcile, for you to calculate the

truth and to do what you can to assure that the appropriate consequences attend the act.

R.8, Ex. N at 22-23. The jury, thus, was exposed repeatedly to the inadmissible first statement, and, from

the prosecutor’s emphasis, it is evident that the State

itself believed that this evidence was critical in obtaining

Mr. Smiley’s conviction. See Arizona v. Fulminante, 499

U.S. 279, 297-98 (1991) (noting that “the State recognized

that a successful prosecution depended on” the improperly admitted evidence); Satterwhite v. Texas, 486 U.S. 249,

260 (1988) (explaining that the error was not harmless,

in part, because “the prosecution placed significant

weight” on the inadmissible evidence); Zappulla v. New

York, 391 F.3d 462, 471 (2d Cir. 2004) (discussing, in the

harmless error context, “whether the prosecutor found

the erroneously admitted evidence to be important,” and

concluding that the “prosecutor heavily emphasized” the

inadmissible evidence); Murillo v. Frank, 402 F.3d 786, 792-

93 (7th Cir. 2005).

Absent the improperly admitted statement, the jury

could well have determined that Mr. Smiley’s self-defense
No. 07-2901 25

R.15, Ex. W at 73, 75-77; id., Ex. V at 134-35, 142-43, 146-49. 10

 R.8, Ex. K at 35-38; id., Ex. J at 14-15. 11

story was consistent with the physical evidence and

testimony that was presented at trial. For example, Mr.

Smiley’s second statement explained that he had been

walking with a limp because Garrett, who was much

larger than Mr. Smiley, had swung him around, causing

Mr. Smiley to hit his knee against a wall. The second

statement also provided an explanation for the bite

mark that the officers had observed on Mr. Smiley’s back,

and that explanation was consistent with Mr. Smiley’s

description of the manner in which he and Garrett had

been interlocked during the struggle. Notably, the jury

further could have found that the details of Mr. Smiley’s

story were consistent with the bullet wounds found on

Garrett’s body. Finally, both Monica Walters, Garrett’s 10

girlfriend, and Dominique Washington, Mr. Smiley’s

girlfriend, testified that they too had suspected Garrett of

various thefts, corroborating Mr. Smiley’s account of how

the altercation between he and Garrett began. This nexus 11

between his confession and the evidence proffered at

trial increases the likelihood that the improper admission of Mr. Smiley’s first statement, which discredited

the exculpatory aspects of his confession, contributed to

the conviction. Cf. Hanrahan v. Thieret, 933 F.2d 1328, 1340-

41 (7th Cir. 1991) (explaining that the “less believable the

defense, after all, the more likely the conclusion that

the constitutional error did not contribute to the conviction,” and concluding that the defendant was “unable
26 No. 07-2901

to reconcile his version of the events effectively with . . .

the physical evidence”); see also Baker v. Montgomery,

811 F.2d 557, 560 (5th Cir. 1987) (denying habeas relief

where the defendant’s self-defense testimony “was contradictory to all other evidence and testimony before

the jury”).

The State nevertheless contends that, even if Mr.

Smiley’s first statement had been suppressed, the prosecutor would have been able to argue to the jury that Mr.

Smiley was not credible. The State posits that, in making

such an argument, the prosecutor could have pointed to

Mr. Smiley’s deceptive attempt to make the crime scene

look as though Garrett had surprised a burglar and to

Mr. Smiley’s fleeing from the crime scene and hiding

himself and the two guns at a friend’s house. We believe

that such an argument would have been far less

damaging to Mr. Smiley’s credibility than the argument

that was made. The jury, for example, could have found

(and Mr. Smiley’s counsel certainly could have argued)

that Mr. Smiley’s staging of the crime scene and running

away was a panicked reaction by a scared individual

who had just engaged in a life-and-death struggle. Furthermore, contrary to the prosecutor’s argument, the

jury would have heard that Mr. Smiley had called the

police as soon as he had heard that they were interested

in speaking with him—a fact that Mr. Smiley’s counsel

could have argued was evidence of Mr. Smiley’s candor

and of a lack of consciousness of guilt and therefore

consistent with self-defense. Because the State did not

have other evidence similarly impeaching Mr. Smiley’s

credibility, the improperly admitted evidence was not
No. 07-2901 27

Cf. Hinton v. Uchtman, 395 F.3d 810, 820-21 (7th Cir. 2005) 12

(holding that the error was harmless because the improperly

admitted evidence was cumulative).

cumulative, a consideration that cuts against a finding of

harmlessness. See Fulminante, 499 U.S. at 299-300 (noting

that the improperly admitted confession “was not merely

cumulative of the other” (emphasis in original)); Agnew v.

Leibach, 250 F.3d 1123, 1135 (7th Cir. 2001) (same).12

To summarize, Mr. Smiley’s criminal conviction

hinged on his credibility, the improperly admitted evidence was oft-used and instrumental in undermining

that credibility, and Mr. Smiley’s self-defense theory was

not a frivolous one. We recognize, as the State notes, that

Mr. Smiley could not have testified at trial without

risking the admission of his first statement for purposes

of impeachment. See Harris v. New York, 401 U.S. 222

(1971). Nevertheless, we must resolve the harmless error

issue on the record before us and without hypothesizing

whether “in a trial that occurred without the error, a

guilty verdict would surely have been rendered.” Sullivan,

508 U.S. at 279. Consequently, we must conclude that

the admission of Mr. Smiley’s first statement to the

police had a “substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht, 507

U.S. at 623.
28 No. 07-2901

Conclusion

For the foregoing reasons, the judgment of the district

court, granting the writ of habeas corpus, is affirmed. 

AFFIRMED

9-5-08