Leif Taylor v. Thomas M. Maddox, Interim Director George Galaza Cal Terhune

Petitioner is serving a life sentence without the possibility of parole for a crime committed when he was sixteen years old. The conviction hinges on a full confession petitioner gave after he was arrested in his home late one night and interrogated by two police detectives past 3:00 a.m. Pursuant to the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1219 (1996), we consider whether the state courts were objectively unreasonable in finding that the confession was lawfully and voluntarily obtained.

Facts and Procedural History

On May 31, 1993, William Shadden was riding his bicycle through a beachside area in Long Beach, California, when two assailants attempted to take it from him. Shadden resisted and the assailants fled. Unwisely, Shadden gave chase and one of the assailants shot Shadden twice, killing him. Three months later, Detectives Craig Remine and William MacLyman, both of the Long Beach Police Department, came to suspect that Leif Taylor had been involved and obtained a search warrant for his apartment. Remine, MacLy-man and at least two other law enforcement officers executed the search warrant and an arrest warrant for Taylor at roughly 11:30 p.m. on September 1,1993.

*997 They found Taylor sleeping on a couch in his living room; his mother, who was his only custodial parent, was apparently absent. Taylor was startled awake by four men with guns drawn and flashlights trained around the room. Taylor was permitted to dress; he was then handcuffed and driven to the police station. He arrived at the station ten minutes later, was escorted onto an elevator to the third floor and placed in a small interrogation room, where he sat alone for about thirty minutes.

By the time Remine and MacLyman entered and began to question Taylor, it was past midnight. For three hours, the detectives interrogated the boy, who “was considerably younger and physically smaller” than they. People v. Taylor, No. B091340, at 6 (Cal.Ct.App. Dec. 6, 1996) (mem.)[hereinafter Ct.App. Opin.]. Taylor “was given no food, offered no rest break, and may or may not have been given any water.” Id. Neither Taylor’s mother 1 nor an attorney was present to advise him during questioning. Taylor denied involvement in the crime “[f]or in excess of two and a-half hours,” id. at 5, before finally inculpating himself. At the detectives’ behest, he then memorialized on audio tape his confession and a waiver of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Begun at 3:02 a.m. and completed at 3:13 a.m., the recording was just eleven minutes long; there is no record of the earlier two-and-a-half hours of questioning. This is so because Remine and MacLyman questioned Taylor without turning on the tape recorder eventually used to record his confession — or the hidden recording equipment installed in the interrogation room— until after he had inculpated himself. Re-mine took notes during the questioning but subsequently disposed of them. 2 There is no videotape, so we cannot see whether Taylor was calm and cool or tearful and agitated; nor do we have the audio tape to listen to. 3 Indeed, there is no contemporaneous record at all of what happened during most of the time that Taylor spent in the interrogation room with Remine and MacLyman.

The tape of Taylor’s confession was played for the jury during the prosecution’s case-in-chief. The jury subsequently convicted Taylor of first-degree, felony murder and second-degree robbery; he was sentenced to life without the possibility of parole. The California Court of Appeal (Second District) (Ortega, Acting P. J.) affirmed; the California Supreme Court denied his petition for review without comment or citation.

Discussion

The district court below denied Taylor’s pro se petition for habeas relief, adopting the magistrate judge’s report and recommendation without modification. We review the district court’s denial of Taylor’s habeas petition de novo. Dows v. Wood, 211 F.3d 480, 484 (9th Cir.2000).

*998 1. At all stages in the state-court proceedings, Taylor challenged the admissibility of his confession on the grounds that it was coerced and obtained in violation of Miranda and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), because the detectives who interviewed him did not cease their questioning after he asked to speak to an attorney. As part and parcel of these claims, Taylor consistently challenged the state trial court’s findings that the detectives did not engage in misconduct and that he did not invoke his right to counsel. See Appellant’s Opening Br. at 29 n. 8, People v. Taylor, No. B091340 (Cal.Ct.App. Dec. 6, 1996); Petition for Review at 14, People v. Taylor, No. B091340 (Cal. Jan. 14, 1997). Taylor therefore presented these issues to the state courts and properly exhausted his claims. See 28 U.S.C. § 2254(b)(1)(A); Baldwin v. Reese, — U.S. -, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (“A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state court petition or brief ... by citing in conjunction with the claim the federal source of law on which he relies....”).

Taylor also preserved these claims by raising them in his pro se federal habeas petition before the district court, and in his pro se petition for a certificate of appeala-bility before us. See Request for the Issuance of a Certificate of Appealability at 3 (“I respectfully submit here that it was the very failure of the District Court ... to conduct a proper review of my Miranda claims that warrants relief here as I plainly argued that their resolution revolved around the purely factual question of what happened during the police interroga-tion_”). We granted a certificate of appealability as to “whether appellant’s Miranda rights were violated, and whether his confession was involuntary.” Certificate of Appealability at 1.

2. Taylor’s state-court lawyer moved to suppress his inculpatory statements and, the day before trial commenced, Judge Charles Sheldon of the Superior Court of Los Angeles County held an evidentiary hearing pursuant to section 402 of the California Evidence Code. 4 Taylor testified that he repeatedly asked for a lawyer, but the detectives denied his requests and engaged in threatening behavior. Detective Remine, who also testified, denied these allegations. Immediately after hearing all testimony and closing arguments, the court denied the suppression motion from the bench:

I am a fact finder first, and I have to decide and say who I believe. I conclude, in this case, that I clearly believe, beyond a reasonable doubt, Officer Ra-mine [sic] and not the testimony of the defendant in this case. Not only because it is the defendant in this case, but for other reasons, which were the nature of the facts that were developed by both sides. Leading me, in addition, to my feelings about who I should believe and who I really do believe, but also, why I should believe as a secondary or perhaps a primary, to look at with that crediting Officer Ramine’s [sic] testimony. It now sheds light upon the decision.

[Defense counsel] makes the best case, of course, it is made primarily by the testimony of a witness I do not credit in this case. I find there was no violation of Miranda, the Miranda rights were given ahead of time, when they have been given before incriminating statements were given. I find it is voluntary under the case law, that has de *999 veloped on this whole issue, hundreds and hundreds of cases, actually, on this issue just like search and seizure, so I find it is both not a violation of Miranda, voluntary, I decline to suppress the statements that were given by the defendant to the officers in this case.

R.T. at 70-71.

After summarizing Taylor’s and Re-mine’s testimony, the court of appeal affirmed in an unpublished opinion, saying only that “[t]he evidence found credible by the trial court supports the determination that the waiver and confession were voluntary.” Ct.App. Opin. at 10. 5 While the trial court’s ruling was not a model of clarity, we construe it as finding that Taylor did not request counsel or his mother, that he confessed voluntarily and that the detectives behaved properly.

Principles of comity and federalism counsel against substituting our judgment for that of the state courts, a deference that is embodied in the requirements of the federal habeas statute, as amended by AEDPA. When it comes to state-court factual findings, AEDPA has two separate provisions. First, section 2254(d)(2) authorizes federal courts to grant habeas relief in cases where the state-court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Or, to put it conversely, a federal court may not second-guess a state court’s fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable. Cf. Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (“The ‘unreasonable application’ clause requires the state court decision to be more than incorrect or erroneous. The state court’s application of clearly established law must be objectively unreasonable.”); see also Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir.2000) (same standard of unreasonableness applies under subsections (d)(1) and (d)(2)). Second, section 2254(e)(1) provides that “a determination of a factual issue made by a State court shall be presumed to be correct,” and that this presumption of correctness may be rebutted only by “clear and convincing evidence.”

We interpret these provisions sensibly, faithful to their text and consistent with the maxim that we must construe statutory language so as to avoid contradiction or redundancy. The first provision — the “unreasonable determination” clause — applies most readily to situations where petitioner challenges the state court’s findings based entirely on the state record. Such a challenge may be based on the claim that the finding is unsupported by sufficient evidence, see, e.g., Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2538-39, 156 L.Ed.2d 471 (2003); Ward v. Sternes, 334 F.3d 696, 705-08 (7th Cir.2003), that the process employed by the state court is defective, see, e.g., Nunes v. Mueller, 350 F.3d 1045, 1055-56 (9th Cir.2003); Valdez v. Cockrell, 274 F.3d 941, 961-68 (5th Cir.2001) (Dennis, J., dissent ing), or that no finding was made by the state court at all, see, e.g., Weaver v. Thompson, 197 F.3d 359, 363 (9th Cir.1999); cf. Wiggins, 123 S.Ct. at 2539-41. What the “unreasonable determination” clause teaches us is that, in conducting this kind of intrinsic review of a state court’s *1000 processes, we must be particularly deferential to our state-court colleagues. For example, in concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record. Cf. Lockyer, 538 U.S. at 75, 123 S.Ct. 1166. Similarly, before we can determine that the state-court factfinding process is defective in some material way, or perhaps nonexistent, we must more than merely doubt whether the process operated properly. Rather, we must be satisfied that any appellate court to whom the defect is pointed out would be unreasonable in holding that the state court’s fact-finding process was adequate.

Once the state court’s fact-finding process survives this intrinsic review— or in those cases where petitioner does not raise an intrinsic challenge to the facts as found by the state court — the state court’s findings are dressed in a presumption of correctness, which then helps steel them against any challenge based on extrinsic evidence, i.e., evidence presented for the first time in federal court. AEDPA spells out what this presumption means: State-court fact-finding may be overturned based on new evidence presented for the first time in federal court only if such new evidence amounts to clear and convincing proof that the state-court finding is in error. See 28 U.S.C. § 2254(e)(1). Significantly, the presumption of correctness and the clear-and-convincing standard of proof only come into play once the state court’s fact-findings survive any intrinsic challenge; they do not apply to a challenge that is governed by the deference implicit in the “unreasonable determination” standard of section 2254(d)(2).

Petitioner here did not present any evidence in federal court. Instead, the district court rejected petitioner’s claim at the initial, or intrinsic, stage of the review process. The appeal before us is therefore governed by the “unreasonable determination” standard of section 2254(d)(2). What we must determine is whether petitioner’s conviction “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” This is a daunting standard— one that will be satisfied in relatively few cases. Nevertheless, the standard is not impossible to meet; as the Supreme Court pointed out in Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), “Deference does not by definition preclude relief. A federal court can disagree with a state court’s credibility determination and, when guided by AEDPA, conclude the decision was unreasonable.” Id. at 340, 123 S.Ct. 1029. Indeed, the Supreme Court, our court and other circuits have all found the standard met. See Wiggins, 123 S.Ct. at 2538-39; Norton v. Spencer, 351 F.3d 1, 6-8 (1st Cir.2003); Ward, 334 F.3d at 705; Nunes, 350 F.3d at 1056; Hall v. Dir. of Corrections, 343 F.3d 976, 983 (9th Cir.2003); Bui v. Haley, 321 F.3d 1304, 1315 (11th Cir.2003); Miller v. Dormire, 310 F.3d 600, 603-04 (8th Cir.2002); Bradley v. Duncan, 315 F.3d 1091, 1096 (9th Cir.2002); Paxton v. Ward, 199 F.3d 1197, 1210 (10th Cir.1999).

As noted, intrinsic challenges to state-court findings pursuant to the “unreasonable determination” standard come in several flavors, each presenting its own peculiar set of considerations. No doubt the simplest is the situation where the state court should have made a finding of fact but neglected to do so. In that situation, the state-court factual determination is perforce unreasonable and there is nothing to which the presumption of correct *1001 ness can attach. See, e.g., Wiggins, 123 S.Ct. at 2539-40; Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir.2002); Weaver, 197 F.3d at 363; Nunes, 350 F.3d at 1055. A somewhat different set of considerations applies where the state court does make factual findings, but does so under a misapprehension as to the correct legal standard. See, e.g., Caliendo v. Warden, 2004 WL 720362, at *6 (9th Cir. Apr.5, 2004); Fernandez v. Roe, 286 F.3d 1073, 1077 (9th Cir.2002); Wade v. Terhune, 202 F.3d 1190, 1197 (9th Cir.2000). Obviously, where the state court’s legal error infects the fact-finding process, the resulting factual determination will be unreasonable and no presumption of correctness can attach to it.

Closely related to cases where the state courts make factual findings infected by substantive legal error are those where the fact-finding process itself is defective. If, for example, a state court makes evidentiary findings without holding a hearing and giving petitioner an opportunity to present evidence, such findings clearly result in an “unreasonable determination” of the facts. See, e.g., Weaver, 197 F.3d at 363; Nunes, 350 F.3d at 1055; cf. Bryan v. Mullin, 335 F.3d 1207, 1215-16 (10th Cir.2003) (declining to apply presumption where state court failed to hold an evidentiary hearing). But see Valdez, 274 F.3d at 948-50 (sections 2254(d)(2) and (e)(1) apply despite defects in the state-court hearing). Similarly, where the state courts plainly misapprehend or misstate the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner’s claim, that misapprehension can fatally undermine the fact-finding process, rendering the resulting factual finding unreasonable. See, e.g., Wiggins, 123 S.Ct. at 2538-39; Hall, 343 F.3d at 983. And, as the Supreme Court noted in Miller-El, the state-court fact-finding process is undermined where the state court has before it, yet apparently ignores, evidence that supports petitioner’s claim. Miller-El, 537 U.S. at 346, 123 S.Ct. 1029 (“Our concerns are amplified by the fact that the state court also had before it, and apparently ignored, testimony demonstrating that the Dallas County District Attorney’s Office had, by its own admission, used this process to manipulate the racial composition of the jury in the past.”); accord Collins v. Rice, 365 F.3d 667, 685 (9th Cir.2004).

Petitioner here claims the latter kind of defect in the state-court fact-finding process — failure to consider and weigh relevant evidence that was properly presented to the state courts and made part of the state-court record. In considering this kind of claim, we are mindful that the state courts are not required to address every jot and tittle of proof suggested to them, nor need they “make detailed findings addressing all the evidence before [them].” Miller-El, 537 U.S. at 347, 123 S.Ct. 1029. To fatally undermine the state fact-finding process, and render the resulting finding unreasonable, the overlooked or ignored evidence must be highly probative and central to petitioner’s claim. In other words, the evidence in question must be sufficient to support petitioner’s claim when considered in the context of the full record bearing on the issue presented in the habeas petition. We therefore proceed by reciting the evidence presented at Taylor’s suppression hearing.

3. In his testimony at the suppression hearing, Taylor gave a disturbing account of his interrogation. He recalled that he awoke to find a flashlight and a gun pointed at him, and his living room filled with men. As he was handcuffed and placed in a police car, he was not told why he was being arrested. Taylor asked the officer driving the car if he knew the reason for *1002 the arrest. The officer said Taylor would be told at the station. Taylor also asked the officer if he “could call ... [his] mom when ... [he] got there. [The officer] ... said that she would be notified for ... [him].” R.T. at 32.

Once at the station, Taylor recounted, he was taken on an elevator to an upper floor, where he waited alone in a small interrogation room for about thirty minutes. When Remine and MacLyman arrived, they did not tell him immediately why he had been arrested, asserting instead that he knew why he was there. MacLyman— who Taylor described as “the bigger fellow” — wore a ring inscribed with the police code for murder, “187,” which he thrust in Taylor’s face, saying, “ ‘Well, you know why you’re down here.’ ” Id. at 34. Mac-Lyman then told Taylor he had been arrested in connection with Shadden’s killing.

During the questioning that followed, Taylor asked several times to speak to his mother 6 and an attorney named Arthur Close. Taylor was adamant in his assertions at the suppression hearing that he had requested counsel before incriminating himself. For example:

Q: ... [D]id you ask to speak to anyone?

A: I asked to speak with my attorney. I told ... [the detectives] I knew an attorney from the outs. I thought maybe I could call him to get some advice, and they told me no, it wouldn’t be possible.

Q: Did you ask to speak with anyone else?

A: I then asked, “Well, can I speak with my mother, can I call her?” And they told me, no.

Id. at 35-36. Similarly:

Q: ... Did you ask to speak to a lawyer?

A: Yes.

Q: And did you ask to speak to a specific lawyer?

A: Yes, I did.

Q: Did you have the telephone number of a lawyer to call?

A: Yes, I did.

Q: And do you remember that telephone number now?

A: Ido.

Q: What telephone number is that?

A: Area code 310, 599-6448.

Q: ... Did you want to talk to these detectives?

A: No, I didn’t.

Q: Did you want to talk to Art Close before you talked to the detective?

A: Yes.

Q: Did you try to do that?

A: Yes.

Q: Did somebody prevent you from doing that?

A: Yes.

*1003 Q: Who did that?

A: One of the detectives, I can’t remember.

Q: How did they prevent you?

A: They told me it wouldn’t be possible. They told me just, you know, they wanted me to tell them what they wanted to hear. They told me just to tell them what happened, and they would let me use the phone.

Id. at 40-43. And again:

Q: [After some questioning had elapsed], did you still want to speak to your lawyer or a lawyer?

A: Several times, I mentioned to speak to him.

Id. at 46. And on cross-examination by the prosecution:

Q: [The detectives] ... told you you couldn’t have an attorney?

A: They didn’t tell me I couldn’t have one. They told me I couldn’t make a phone call to one.

Q: You said “I want to call an attorney?”

A: Yes.

Q: ... You didn’t say, you want to call Art?

A: I said I want to call an attorney, and they said who,....

Id. at 56. In these and other exchanges, Taylor never wavered in his assertion that he wanted to call a lawyer during his interrogation and asked for access to a phone in order to do so.

According to Taylor, the detectives denied his requests. Instead, MacLyman drew long and short lines on a piece of paper, explaining to Taylor that he could go to jail for the rest of his life (long line) or just until he was twenty-five (short line), depending on whether he cooperated with the detectives. MacLyman also coaxed Taylor, saying he knew Taylor didn’t kill Shadden deliberately but had done so unintentionally. Although Taylor steadfastly denied involvement, the detectives persisted in the questioning and would not permit Taylor to make a phone call until he told them “the truth.”

Taylor became desperate and upset. Concluding that he could clear up the matter later, Taylor decided to yield to the detectives’ insistent demands that he confess in order to gain access to a phone. He then made the eleven-minute recording memorializing his Miranda waiver and confession. Explaining why he would give a false confession, Taylor said,

I am getting tired, so I just started agreeing with everything so I can get out and make a phone call, because I was thinking, you know, well I didn’t do it anyways, so why don’t I just try to get out of the room to get my phone call and just tell them what they want to hear.

Id. at 46-47 (emphasis added). He reiterated,

I was just tired, you know. I wanted to get out of that room, for one thing. I was thinking, you know, you know, I am just not knowing what was going on. I am thinking these guys are supposed to be the good guys. I was never involved in any serious crime, so if I just agree with them, get my phone call, I will get it straightened out, I will go home.

Id. at 47.

Taylor recalled that, at some point, he was given a form advising him of his Miranda rights and signed it to indicate his waiver of those rights. His testimony was unclear as to whether he signed the advisement form before or after he initially inculpated himself, but he asserted he was not shown the form and did not sign it until well after the bulk of the interrogation was concluded. Taylor also claimed he was so upset that he didn’t pay attention to the advisement and merely signed the form as instructed. In response to *1004 questioning by defense counsel, Taylor explained that the detectives made it hard for him to read the form:

Q: Did you read that document before you signed it?

A: No, I didn’t.

Q: Did anybody read it to you?

A: Not that I can recall.

Q: Why didn’t you read it, were you given — why didn’t you read it?

A: I didn’t read it. I wasn’t allowed to read it. It was just “sign here” and their hand stayed on the paper.

MR. SCHMOCKER: Your honor, may the record reflect that the witness turned the paper around as if showing it to somebody else.

THE COURT: All right. And he had his hand over part of the upper part of the paper.

Q by MR. SCHMOCKER: Was there a hand over a part of that upper part of that paper?

A: Yes, sir[,] there was.

Id. at 38-39.

MacLyman, the béte noire in Taylor’s account of these events, did not testify at the suppression hearing. Remine, who did testify, related a story very different from Taylor’s — or, at least, professed to lack specific recollection on key points in Taylor’s story. Remine asserted that Taylor had been advised of his Miranda rights immediately after Remine and MacLyman joined him in the interrogation room, and that he had waived his rights at that time by signing the advisement form. Remine did confirm that MacLyman wore a “187” ring and that the interrogation room was on an upper floor in the police station. He denied or could not recall that Taylor appeared emotional during questioning, that Taylor asked to speak with his mother, that MacLyman thrust his “187” ring in Taylor’s face, and that MacLyman mapped lines representing potential sentences. Remine also denied that he told Taylor he knew Taylor hadn’t intended to kill the victim; he was never asked whether Mac-Lyman made that statement. When asked by defense counsel whether Taylor asked to speak with Close, Remine replied, “I don’t recall him making that statement.” Id. at 17.

Asked by defense counsel if Taylor requested a lawyer prior to signing the advisement form, Remine unqualifiedly stated, “No, sir.” Id. at 21. But when defense counsel asked whether Taylor asked for a lawyer after signing the form, Remine ambiguously replied, “Not to my recollection, he did not,” id., and to counsel’s repeated inquiry whether Taylor ever asked to speak with a lawyer named Close, Remine hedged, “I don’t recall him saying that, no, sir,” id. Remine also denied that Taylor had asked for his mother before questioning and could not recall whether he had asked for his mother during questioning. The prosecutor did not seek to clarify the ambiguities in Remine’s testimony, and never asked Remine if Taylor had asked to speak with counsel at any point.

In evaluating the relative credibility of these two sharply differing accounts of the events inside the interrogation room, the state courts treated this as a swearing-contest between Taylor and Remine. The state trial judge simply said that he believed Remine, not Taylor. He purported to give reasons for disbelieving Taylor’s account of the interrogation, but his explanation defies rational understanding:

Not only because it is the defendant in this case, but for other reasons, which were the nature of the facts that were developed by both sides. Leading me, in addition, to my feelings about who I should believe and who I really do believe, but also, why I should believe as a secondary or perhaps a primary, to look at with that crediting Officer Ramine’s *1005 [sic] testimony. It now sheds light upon the decision.

Id. at 70-71. 7

The court of appeal found that Remine’s testimony constituted a sufficient basis in the record for the trial court’s findings, and therefore affirmed. Remarkably, neither the state trial court nor the state appellate court acknowledged that another witness testified at the suppression hearing- — -attorney Arthur Close, who said he received a telephone call from Taylor in the early morning hours of September 2, 1993, shortly after Taylor had given his confession. As detailed below, Close’s testimony strongly corroborates Taylor’s account of the interrogation and stands entirely unrefuted. Neither the state trial court nor the state appellate court found that Close had fabricated his testimony, nor was there any basis in the record for such a finding. The state courts simply ignored Close. For the reasons explained at length below, the state courts’ failure to consider, or even acknowledge, Close’s highly probative testimony casts serious doubt on the state-court fact-finding process and compels the conclusion that the state-court decisions were based on an unreasonable determination of the facts.

4. Close testified that Taylor had called him at home, at “approximately four a.m.” on September 2. Id. at 58. Taylor told Close that he had just confessed to murder, that he had requested his mother and Close more than once, that he had been prevented from making a phone call until after he confessed, that he had confessed falsely in order to gain permission to make that phone call, and that one of the two detectives questioning Taylor had thrust a “187” ring in his face, and had drawn a diagram to illustrate the alternatives facing Taylor depending on whether or not he cooperated by confessing. 8 Close explained that Taylor did not tell him the exact significance of the diagrammed alternatives, only what had transpired. In all of these respects, Close substantially corroborated Taylor’s story. But Close’s testimony also went beyond the scope of Taylor’s, for Close testified that “[Taylor] said he requested, by name, to speak to me on the elevator in the police department, prior to the questioning.” Id. at 62. Close further testified that Taylor was crying and upset during the call and that Taylor provided these details without prompting from Close.

The state trial judge said nothing at all about Close’s testimony. In reviewing the trial court’s ruling at the suppression hearing, the court of appeal similarly failed to mention Close’s testimony or to consider its remarkable congruence with Taylor’s account of what had transpired during his interrogation. The court of appeal only passingly discussed Close’s testimony in upholding its exclusion at trial under section 1250 of the California Evidence Code. In describing Close’s testimony as to that issue, the court of appeal noted that Close *1006 said Taylor “ ‘was in tears and highly agitated’ ” during the phone call early on September 2. Ct.App. Opin. at 7. The court of appeal also quoted defense counsel’s proffer at trial: “ ‘[H]e received a call from [defendant] about four a.m. and ... [defendant], at that time, said that he had given a false confession to a cop in order to make a phone call to Mr. Close in his capacity as a lawyer.’ ” Id. Thus, the court of appeal was aware of Close’s testimony, yet never considered or even acknowledged that it corroborated particularly unusual details in Taylor’s story: that Taylor rode an elevator to the floor where the interrogation room was located (at which time he allegedly asked for counsel), that Taylor asked for his mother, that one of the detectives wore a ring inscribed with a “187” and brandished the ring in Taylor’s face, and that the detective with the ring “mapped” out Taylor’s possible fate by drawing “a diagram of two different routes of what would happen to him. One route if he cooperated and confessed, the other route that if he refused to do so, and what the consequences would be.” R.T. at 61. Nor did the court of appeal consider that Close testified that Taylor had told Close his requests for counsel and his mother had been denied. In other words, the court of appeal, like the state trial court, ignored the detailed quality of Close’s testimony and the fact that it matched Taylor’s account of the events inside the interrogation room.

While Close’s testimony is based on what Taylor told him during their telephone conversation following the end of the interrogation, it nevertheless corroborates Taylor’s account in important respects. 9 To begin with, the record discloses that Taylor called Close at the first available opportunity. Taylor’s taped confession ended at 3:13 a.m., and he was thereafter booked — a process that was completed no earlier than 3:55 a.m. 10 Close testified that he received Taylor’s call at approximately 4:00 a.m. This confirms Taylor’s claim that he wanted to get in touch with Close at the first available opportunity. Moreover, Taylor’s call also confirms his claim that he could, in fact, get in touch with a lawyer, even in the middle of the night: He knew Close’s home phone number and felt comfortable waking him. Perhaps most important, the details of Taylor’s story, as related to Close during their telephone conversation, precisely matched Taylor’s testimony at the suppression hearing, pr