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United States v. Williston

United States Court of Appeals, Tenth Circuit

July 5, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
DAKOTA LANE WILLISTON, Defendant-Appellant.

         Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:14-CR-00085-RAW-1)

          Robert A. Ridenour, Assistant Federal Public Defender (Barry L. Derryberry, Research and Writing Specialist, and Julia L. OP'Connell, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Northern & Eastern Districts of Oklahoma, Tulsa, Oklahoma, for Defendant-Appellant.

          Linda A. Epperley, Assistant United States Attorney (Mark F. Green, United States Attorney, and Gregory Dean Burris, Assistant United States Attorney, with her on the brief), Office of the United States Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee.

          Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.

          PHILLIPS, Circuit Judge.

         The grand jury is a constitutionally mandated body that both protects the rights of defendants and provides a powerful investigative tool for federal law enforcement. A key part of the grand jury's investigative power is its ability to compel testimony, subject to witnesses' Fifth Amendment rights against self-incrimination. Grand-jury witnesses have no right to Miranda warnings, nor do they have an absolute right to remain silent-even witnesses implicated in the criminal activities that the grand jury is investigating. United States v. Mandujano, 425 U.S. 564, 579-80 (1976) (plurality opinion). Here, the Defendant argues that Miranda should apply to protect grand-jury targets who are confined on unrelated criminal charges. From this, the Defendant argues that the district court erred at trial by not suppressing his grand-jury testimony, because the government failed to provide him Miranda warnings before that testimony. We reject this argument. We hold that the rule rendering Miranda inapplicable to grand-jury witnesses extends to persons who are incarcerated for unrelated reasons when they are subpoenaed to appear before a grand jury. We also reject the Defendant's other challenges to his conviction and sentence-challenges based on the Sixth Amendment right to counsel, unfairly prejudicial evidence, the evidentiary rule of completeness, and the Eighth Amendment's prohibition on cruel and unusual punishment. We affirm on all grounds.


         On June 3, 2014, an FBI agent served a grand-jury subpoena on Dakota Lane Williston in the McCurtain County Jail in Idabel, Oklahoma. Williston was being held in the jail on state charges unrelated to the crime that the grand jury was investigating. The FBI agent also handed Williston a target letter from the United States Attorney's Office and a blank financial affidavit. The target letter had a heading of "Advice of Rights" and informed Williston that he was the target of a federal grand jury murder investigation. R. vol. 1 at 109-10. The letter also advised Williston that he could "refuse to answer any question if a truthful answer to the question would tend to incriminate you"; that anything Williston did or said "may be used against you by the Grand Jury or in a subsequent legal proceeding"; that Williston could step outside the grand-jury room to consult with retained counsel, if he had any; and that if Williston had not retained counsel "and cannot afford to hire counsel, a financial affidavit is attached." Id. at 126. The letter stated that the completed financial form could be returned to "the Federal Public Defender's Office" in Muskogee, Oklahoma. Id. The FBI agent read the target letter verbatim to Williston and reiterated that Williston was the target of the investigation. The government secured an Order for Writ of Habeas Corpus Ad Testificandum for Williston and United States Marshals transported him to the Muskogee County Jail for his grand-jury testimony. Another FBI agent met with Williston before his grand-jury appearance to ask if Williston would be testifying-to avoid bringing Williston in front of the grand jury for the sole purpose of hearing him invoke his Fifth Amendment rights. Williston said that he would be testifying.

         On June 11, 2014, Williston appeared before the grand jury. Before the federal prosecutor began asking Williston any questions, he reviewed on the record Williston's rights with him. First, the prosecutor confirmed that Williston had received and understood the target letter. Then he reviewed the target letter with Williston, informing him that the grand jury was investigating a murder in Indian Country. He advised Williston that he could "refuse to answer any question if the truthful answer to the question would tend to incriminate you." Supp. R. vol. 5 at 19. He told Williston that anything Williston said could be used against him "by the grand jury or in a subsequent legal proceeding." Id. The prosecutor then said that if Williston had retained counsel, he could consult with counsel outside the grand-jury room. He added that:

I would also inform you, as I see that you're in custody on some charges, that you have the right to counsel at no expense to you. We can have that appointed to you at no expense should you feel like you want counsel at any time. And you have the right to remain silent in that regard as well.


         Williston affirmed that he understood all that information. The prosecutor then moved on to his substantive questions, starting out by asking if what he had heard was true-that Williston wanted to tell the grand jury his story? Williston answered "Yes, sir." Id. at 20. The prosecutor's belief stemmed from Williston's prior affirmation to the second FBI agent that he planned to testify rather than invoke his Fifth Amendment rights. Williston then gave his account of the death of Payton Cockrell, some of which is set out below as introduced through an FBI agent at trial.

         On July 23, 2013, Williston was living in his grandmother's house in Idabel, a town in southeastern Oklahoma. Earlier that month, two persons had moved in with Williston: Brittany Cockrell, a woman with whom Williston was personally involved, and Brittany's two-and-a-half-year-old daughter, Payton. Williston told the grand jury that, on the morning of July 23, he woke up as Brittany was preparing to go to work. When Brittany started to leave the house soon before 10 a.m., Payton attempted to follow her mother out the door. Williston told Brittany to leave Payton at home with him that day, rather than take Payton to day care, so that Brittany would have a reason to come home sooner.

         After Brittany had left for work, Williston told the child, who was crying, to go lie down on her bed, which she did. Williston went back to sleep. When he awoke again, he stripped the sheets from his bed and from Payton's bed, took them to the laundry room along with towels that he said Payton had thrown up on during the night, retrieved the house's landline phone to see if anyone had called, and then lay down on his bed. When Williston stripped the sheets from Payton's bed, he told the grand jury that Payton woke up for a moment, said "nite-nite, " and went back to sleep. R. vol. 2 at 1533.

         When Williston got out of bed again soon afterward, he began preparing to take a shower and "hollered at Payton a couple of times." Id. at 1496. When Payton didn't respond, Williston said that he shook her a few times to try to wake her up, but that she still didn't respond. Williston told the grand jury that he then "started freaking out, " "patted" Payton on the cheek, and accidentally "busted her lip, " causing blood to trickle across her teeth. Id. at 1497-98. Apart from a bruise on Payton's face that he said was accidentally caused by Brittany when brushing Payton's hair the night before, Williston said that the busted lip was the only injury he could see on Payton. Williston testified that he then put Payton on the floor and ran to get his grandmother, who had entered the house soon before.

         At 12:10:59 p.m., Williston called Brittany. He asked only when Brittany would be coming home. At 12:11:48 p.m., Williston called Brittany again and told her that he couldn't wake up Payton. The woman that Brittany was caring for as a home-health aid overheard the conversation and immediately called the police. At 12:16 p.m., Williston called 911. Emergency-services personnel arrived at 12:22 p.m. and took Payton to the hospital, where she was pronounced dead. Williston approached one of the responding sheriff's deputies, whom he knew, and said, " . . . what do I do? Tell me what to do." Id. at 510. He also told the deputy that he had made Payton lie down, and then started shaking and slapping her when she wouldn't wake up. Williston told the grand jury that, from the time Brittany left the house until he found Payton unresponsive, he was the only one in the room with her, that he had no reason to believe that Payton had left the room while he was asleep, and that he didn't believe anyone had snuck into the house and hurt Payton.

         Later trial testimony from emergency-services personnel and other medical witnesses painted a far more severe picture of Payton's injuries than Williston had described. Emergency-services personnel noticed dried blood and several bruises on her face. At the hospital emergency room, medical personnel observed extensive, visible injuries to Payton's neck, head, face, chest, mid-back, and other areas.

         A search of the house revealed blood containing Payton's DNA in multiple locations in Williston's room, including a blood spatter on the wall, as well as on towels in the laundry room. The pathologist at the medical examiner's office ruled Payton's death a homicide caused by blunt force injuries to the head and torso, documenting both serious head injuries and massive internal injuries, either of which would have been enough to cause Payton's death independently. Payton suffered the majority of her injuries within a few days of her death. Payton's abdominal wall- which encloses the intestines-was also bruised, which a child-abuse expert attributed to especially severe trauma. The expert also testified that her medical diagnosis of the cause of Payton's death was severe child abuse.

         On December 19, 2014, six months after Williston's testimony, the grand jury indicted Williston for Payton's murder. Williston filed a pretrial motion to suppress his grand-jury testimony. A magistrate judge recommended the denial of the motion, and the district court adopted the recommendation and denied the motion. After a seven-day trial, during which an FBI agent read portions of the transcript of Williston's grand-jury testimony into the record, a jury convicted Williston of first-degree murder in Indian Country committed during the perpetration of child abuse, in violation of 18 U.S.C. §§ 1111, 1151, and 1153.[2] The district court sentenced Williston to life without parole, as mandated by 18 U.S.C. § 3559(d). Williston now appeals, raising issues concerning his Fifth and Sixth Amendment rights, evidentiary rulings, and sentencing.


         Williston argues that the government violated his Fifth Amendment rights by not providing him a Miranda warning before his grand-jury testimony. Williston acknowledges that the Supreme Court held in Mandujano that the full warnings of Miranda v. Arizona, 384 U.S. 436 (1966)-including the warning that a defendant has an absolute right to remain silent[3]-required for custodial interrogation need not be given to grand-jury witnesses, even if they are testifying about criminal activity in which they may be implicated. Mandujano, 425 U.S. at 579-80. Williston distinguishes his case from Mandujano by pointing out that he was in state custody at the time of his grand-jury appearance. Thus, he argues, the circumstances of his questioning made him not merely a grand-jury witness, but a person in custody being interrogated. By his telling, federal marshals involuntarily transported him to the grand jury, left him handcuffed and shackled during questioning, and subjected him to questioners able to charge him with a crime, all while knowing that Williston, a "putative defendant, " Appellant Br. at 23, was likely to incriminate himself, as an 18-year old with limited education far from his home and family.[4]

         In reviewing a motion-to-suppress ruling based on the applicability of Miranda, we review de novo the ultimate question of whether Miranda applies. United States v. Jones, 523 F.3d 1235, 1239 (10th Cir. 2008). But we accept the district court's factual findings unless they are clearly erroneous, and we view the evidence in the ...

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