                                File Name: 12a0490n.06
                        NOT RECOMMENDED FOR PUBLICATION

                                            No. 10-5097                                     FILED
                                                                                        May 11, 2012
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                             LEONARD GREEN, Clerk



UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )
v.                                                  )   ON APPEAL FROM THE UNITED
                                                    )   STATES DISTRICT COURT FOR THE
SHANNON SHIELDS,                                    )   WESTERN DISTRICT OF TENNESSEE
                                                    )
       Defendant-Appellant.                         )
                                                    )



BEFORE:        MERRITT, CLAY, and SUTTON, Circuit Judges.


       MERRITT, Circuit Judge. This is a direct appeal from a jury conviction for: (1)

kidnapping resulting in the death of the victim, in violation of 18 U.S.C. § 1201(a); (2) carrying and

using a firearm during and in relation to kidnapping, in violation of 18 U.S.C. § 924(c); and (3)

attempted escape, in violation of 18 U.S.C. § 751(a). The defendant-appellant, Shannon Shields,

received a sentence of life imprisonment for the kidnapping charge, ten consecutive years of

incarceration for the firearms charge, and five consecutive years of incarceration for the escape

charge. A prior adjudication that determined Defendant to be mentally retarded rendered him

ineligible to receive the death penalty. Defendant appeals the jury’s verdict and his sentences on

several grounds: (1) that there is insufficient evidence to sustain Defendant’s convictions for the

kidnapping and firearms charges; (2) that the District Court improperly admitted certain testimony
No. 10-5097
United States v. Shields

and otherwise denied Defendant a fair trial; (3) that the District Court erred in denying Defendant’s

motion to suppress incriminating, post-arrest recorded statements that he made to the police; and (4)

that Defendant’s sentence of life imprisonment for the kidnapping charge, imposed pursuant to a

statutorily mandated minimum sentence, is disproportionate to his level of culpability and therefore

violates the Eighth Amendment’s bar against cruel and unusual punishment. These claims of error

are insubstantial. The evidence against Defendant is very strong.

                                          I. Background

       The pertinent facts are as follows. On the evening of May 19, 2004, Defendant and his

cousin, Sonny Shields, carjacked and abducted Jerrell Lott at the Corner Grocery Store in Memphis,

Tennessee. In addition to surveillance camera footage confirming that Defendant and Sonny Shields

approached Lott’s car (a silver 1994 Mitsubishi Diamante) on that evening, there was one eyewitness

to the crime itself, a thirteen year-old boy named Tony Tapplin. At trial, Tapplin testified that he

saw two men approach Lott’s car once Lott, whom Tapplin recognized as his neighbor, had left the

store and gotten back inside the vehicle. According to Tapplin, the men spoke briefly with Lott, at

which point one of the men pulled out a gun and pointed it at Lott while the other ran around to the

passenger side and demanded that Lott unlock the car and let him inside. Lott complied. Tapplin

further testified that the man holding the gun then jumped into the backseat, and that Lott drove away

while the man held the gun to the back of his head. On May 25, six days after witnessing the

carjacking, Tapplin identified Sonny Shields from a police photo spread as the man who had pulled

the gun on Lott. However, Tapplin was unable to identify Sonny Shields a second time when police



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United States v. Shields

showed him a new photo spread on May 30, five days later, and he was never able to identify

Defendant as the second perpetrator.

         The testimony of other witnesses pieced together events subsequent to Lott’s carjacking and

abduction and culminating in his murder. Soon after leaving the Corner Grocery, Defendant and

Sonny Shields pulled over, forced Lott to strip to his underwear, beat him, and locked him in the

trunk of his car. After locating Lott’s ATM card, Defendant and Sonny Shields then drove to a local

bank and used the card to withdraw $800 in cash.1 Next, they drove across town to the house of

Sonny Shields’ friend, Lendzo Parker, at 917 Polk Street. Parker testified at trial as to the events that

occurred at the Polk Street address. According to him, Defendant and Sonny Shields arrived at the

house around midnight in a silver Mitsubishi Diamante. He further testified that Defendant, upon

exiting the car, announced “I got a nigger in the trunk,” prompting Sonny Shields to explain to

Parker that he and Defendant had just robbed a man, that the man had seen their faces, and that they

needed Parker to help them get rid of the car. Parker agreed. Parker and two other witnesses who

were also present at the Polk Street address, Parker’s sister, Lauren Parker Turner, and Parker’s

friend, Kevin Jordan, testified that they also observed Defendant flashing a large wad of cash.

Jordan further testified that Defendant told him to stay away from the Diamante because it was “hot.”

Sometime thereafter, Defendant and Sonny Shields left 917 Polk Street in the Diamante, with Lott

still trapped in the trunk. Parker and Parker’s friend, James Stafford, followed behind in Parker’s

Honda. Both Turner and Jordan witnessed and testified to the cars’ departure.


        1
         At trial, a records custodian for the bank testified that the bank’s ATM video camera captured an individual
withdrawing money from Lott’s bank account on the evening of May 19, 2004.

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       Parker’s trial testimony provides an account of what happened next. After departing from

917 Polk Street, the four men crossed the Mississippi River into Arkansas before stopping at a gas

station to buy gas and a plastic gas can. Stafford filled up the latter with gas at the pump. The four

men then left the gas station and drove for some time before turning onto a secluded road, and

finally, parking on an adjoining unpaved field road. Once parked, Defendant and Sonny Shields

exited the Diamante, opened the trunk, and directed Lott to get out. Lott begged for his life, to no

avail. When Lott attempted to run away, Sonny Shields drew his gun and fired at the fleeing figure.

At this point, Defendant grabbed the gun from Sonny, and exclaimed “You can’t do nothing right”

before running after Lott, firing shots as he ran. Sonny Shields followed. Parker testified that,

although the three men disappeared from his line of sight, he heard several more shots before

Defendant and Sonny Shields returned to the parked cars. Sonny Shields, shoeless and carrying the

pistol, collected the gas can from Stafford and walked back across the field with Defendant to burn

Lott’s body. After some time, Defendant and Sonny Shields returned to the cars, and all four men

drove away.

       On the road back to Memphis, the men stopped at a different gas station to refill the gas can.

Sonny Shields noticed that the gas cap was missing and grew concerned that he had accidentally left

it behind. Consequently, all four men returned to the field and searched, unsuccessfully, for the

errant item. As they attempted to depart for the second time, both cars became stuck in the muddy

field, forcing the men to get out and push them free, muddying their clothes and shoes in the process.

Once back in Memphis, the men drove around looking for a place to burn Lott’s car. They

eventually stopped at a location near Hernando and Kerr streets, where Sonny Shields got out of the

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Diamante and joined Parker and Stafford in the Honda. Defendant proceeded to burn the Diamante

in a nearby field. The car exploded as it burned, injuring Defendant’s arms and face. He ran back

to the others, yelling that he was hurt, and directed them to take him to his aunt’s house. Sonny

Shields, Parker, and Stafford complied and dropped Defendant off at his aunt’s address sometime

between 3a.m. and 4a.m. on the morning of May 20. Defendant’s aunt, Stephanie Long, greeted him

at the door and immediately noticed that he was muddy, burned, and reeking of gasoline. Defendant

told his aunt and his aunt’s husband, Tony Long, that he had been working on a car and had gotten

injured when the car’s battery caught fire. After changing clothes and shoes, Defendant asked his

aunt to drive him to a place where he could meet up with his girlfriend, Frenchetta Leavy. His aunt

agreed, and Defendant and his aunt met Leavy in Grenada, Mississippi. Defendant told Leavy that

he’d injured himself in a barbecuing accident.2 Leavy then drove Defendant to a nearby hospital,

where he checked in under the pseudonym “Willie Oliver.” He continued to use this false name

when the hospital transferred him to a burn center in Greenville, Mississippi.

         The Memphis Police Department became aware of Defendant’s involvement in Lott’s

abduction and murder when Sonny Shields turned himself in to local investigators on the evening

of May 21, 2004. By this point, the police investigation was already underway.3 Sonny Shields

made a number of inculpatory statements, but largely shifted the blame to Defendant. He also told


         2
             Once in custody, Defendant told Leavy that he had been present when Sonny Shields shot a man and that he’d
gotten burned when he set someone’s car on fire.

         3
          Police officers had already found both Lott’s body and the charred Diamante, and local television stations had
begun airing the surveillance camera footage showing two men approaching Lott’s car in the Corner Grocery parking
lot.

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the police where they could find Defendant. Consequently, the Sheriff’s Department in Washington

County, Mississippi, took Defendant into custody on the evening of the same day. Three days later,

on May 24, Memphis police detectives Joseph Pearlman and Jasper Clay drove to Greenville, and,

pursuant to a federal warrant, interviewed Defendant as he waited in a holding cell prior to his initial

court appearance. Pearlman and Clay advised Defendant of his Miranda rights, and he waived them

both orally and in a written statement. He thereafter made a tape-recorded statement that was self-

serving but incriminating. Defendant admitted to being present throughout Lott’s carjacking,

abduction, and murder, but placed primary blame on his cousin, just as Sonny Shields had done to

him. Defendant’s statement was admitted at trial, where the jury returned guilty verdicts on all three

counts of the indictment.

                                           II. Discussion

                                   1. Sufficiency of the Evidence

        The evidence is clearly sufficient to support the jury’s verdict. Defendant first asserts that

the government failed to adequately link him to Lott’s kidnapping because the only non-accomplice

eyewitness to the crime, thirteen year-old Tapplin, was never able to identify Defendant as one of

the perpetrators. This argument ignores the Corner Grocery Store surveillance video showing

Defendant and Sonny Shields approaching the location where Lott was sitting in his car on the

evening of May 19, 2004. Tapplin, moreover, identified Sonny Shields in the first of two police

photo spreads as the man who held the gun.

        Second, Defendant contends that Parker’s testimony was biased and that the jury should not

have credited it in light of the fact that Parker testified pursuant to a plea agreement under which he

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will receive a reduced sentence of twenty years imprisonment for the kidnapping charge and a

dismissal of the firearms charge. The jury, however, knew of Parker’s plea agreement; it was their

function to judge his credibility. Further, those portions of Parker’s testimony which connect

Defendant to Lott’s stolen Mitsubishi Diamante, and to events that transpired at 917 Polk Street on

the night of Lott’s abduction, are strongly corroborated by the statements of other, non-accomplice

eyewitnesses. Defendant himself admitted – both to the police and to his girlfriend – that he was

present in the Arkansas field when, according to Defendant, Sonny Shields shot and killed Lott.4

Thus, even conceding the possibility that Defendant may never have pulled the trigger, there was

ample evidence to convince a rational trier of fact that Defendant was guilty of the charged offenses.

See U.S. v. Henderson, 626 F.3d 326, 341 (6th Cir. 2010).

                          2. Prejudicial Effect of Various District Court Rulings

         Defendant next asserts that the District Court made a variety of rulings that unfairly

prejudiced the jury against him. These include: (1) improperly allowing expert opinion testimony

from a lay witness; (2) improperly allowing testimony regarding Defendant’s medical treatment and

use of a pseudonym to obtain such treatment; (3) refusing to permit Defendant to appear at trial in

street clothes instead of prison garb; and (4) failing to sever Defendant’s charge for escape from the

kidnapping and firearms charges.




        4
           Defendant also argues on appeal that his statement to the police should have been suppressed. This assertion
is addressed, and dismissed, later in the opinion.

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                                      (a) Evidentiary Rulings

       Defendant contends that the District Court wrongly permitted Dale Arnold of the Arkansas

State Police to highlight for the jury “what appeared to be similarities” between the tread on

Defendant’s muddy shoes and a photograph of the shoe prints found near Lott’s body, despite

lacking “specialized training in footprint or shoe identification.” (Appellant’s Brief at 29.) This

argument lacks merit. It is true that Rule 702 of the Federal Rules of Evidence prohibits any witness

from providing opinion testimony based on scientific, technical, or other specialized areas of

knowledge unless that witness first qualifies as an expert. SeeFED . R. EVID . 702. However, Rule

701 supplies an important corollary: a witness may nonetheless offer lay opinion testimony that is

rationally based on the witness’s perception, or that will help the jury understand the testimony or

determine a fact in issue, so long as it is not otherwise restricted by Rule 702. See id. 701.

       Arnold’s testimony fits squarely within the limitations contemplated by Rule 701. First,

Arnold led the police discovery of Lott’s body and thus had sufficient personal knowledge to testify

about whether the prints in the field were similar to the tread on Defendant’s shoes. And second,

the jury benefitted from Arnold’s testimony in light of the fact that Arnold had enjoyed significantly

more time to study and compare the evidence. See U.S. v. Zepeda-Lopez, 478 F.3d 1213, 1222 (10th

Cir. 2007). The District Court did not err by admitting it.

       Defendant also asserts that the District Court improperly admitted testimony regarding

Defendant’s medical treatment in Mississippi, including his use of the pseudonym “Willie Oliver”

to obtain such treatment. Defendant maintains that this evidence lacked probative value, as it

occurred after the crime was completed, and that it unfairly prejudiced the jury against him. We

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disagree. The mere fact that evidence relates to activities committed after completion of a crime

does not render it inadmissible. Rather, it is elementary that post-crime evidence is admissible when

it tends to show consciousness of guilt and is not unfairly prejudicial. See e.g., U.S. v. Cody, 498

F.3d 582, 591-92 (6th Cir. 2006). In this case, evidence that Defendant sought medical treatment

well over one hundred miles from Memphis, and under a false name, tended to prove that Defendant

hoped to avoid apprehension for his crimes. Further, evidence relating to the treatment itself tended

to link Defendant, through his injuries, to the burning of Lott’s car.

              (b) Denial of Defendant’s Request to Appear in Street Clothes at Trial

        Defendant next contends that the District Court denied him a fair trial by refusing his request

to stand before the jury in street clothing. Although it is well-established that a trial court cannot

force a criminal defendant to appear before the jury in prison garb, no compulsion was present in this

case. See Estelle v. Williams, 425 U.S. 501, 504-05 (1970); U.S. v. Brown, 367 F.3d 549, 553-54

(6th Cir. 2004). To the contrary, Defendant strategically chose to appear in prison clothes, only

changing his mind the first morning of trial. And while Defendant did at this point object to

appearing before the jury in an orange jumpsuit, the District Court made all reasonable efforts, short

of delaying trial, to accommodate him. Echoing Brown, this Court recently held that a trial court is

not required to either furnish alternate clothing for a defendant or else delay trial, so long as the court

makes clear that it would allow the defendant to change clothes if substitute attire could feasibly be

made available. See U.S. v. Williams, 641 F.3d 758, 767 (6th Cir. 2011) (citing Brown, 367 F.3d at

554). The District Court clearly provided Defendant with an opportunity to change his clothes, even

suggesting that Defendant’s counsel borrow a jacket from a colleague on Defendant’s behalf. As

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such, the District Court’s refusal to delay trial at the last minute did not amount to compelling

Defendant to appear in prison clothes in violation of his constitutional rights.

                      (c) Failure to Sever Escape Charge from Other Charges

        Defendant also claims that the District Court prejudiced his defense by failing to sever his

charge for escape from the other charges against him. Because Defendant failed to renew his pretrial

motion to sever at the close of all the evidence, we review for plain error. See U.S. v. Walls, 293

F.3d 959, 966 (6th Cir. 2002). Defendant concedes that the Federal Rules of Criminal Procedure

permit the joinder of related offenses, but supports his argument by invoking a court’s discretionary

ability to sever certain offenses if it appears that prejudice would otherwise result. See FED . R. CRIM .

P. 8(a), 14. Defendant, however, suffered no additional prejudice from a concurrent trial on all

charges. Evidence of his attempted escape would have been admissible circumstantially as tending

to prove consciousness of guilt in a separate trial on the kidnapping and firearms charges. See U.S.

v. Williams, 295 F.3d 817, 819 (8th Cir. 2002); U.S. v. Hankins, 931 F.2d 1256, 1261 (8th Cir.

1991). Thus, as to the joinder of counts, the District Court committed no error, much less plain

error. See Williams, 295 F.3d at 819.

                            3. Denial of Defendant’s Motion to Suppress

        Prior to trial, Defendant moved to suppress the tape-recorded statement he gave to police on

May 24, 2004, on the ground that it was not voluntary, despite Defendant’s oral and written waiver

of his Miranda rights. The District Court denied the motion and admitted the statement at trial.

Defendant now contends, for the first time, that the District Court’s pretrial adjudication of his

mental retardation, which rendered him ineligible to receive the death penalty, also invalidated his

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United States v. Shields

waiver of rights because it was not made knowingly and intelligently. Defendant also asserts that,

because he is mentally retarded, his statement was the product of inherent police coercion.

Defendant’s claim of ineffective waiver is a losing one because it both has no merit and was waived.

         There is case law to support the proposition that diminished mental capacity can, by limiting

a defendant’s ability to understand the nature of his or her rights and the consequences of abandoning

them, contribute to a determination that a waiver was invalid. See U.S. v. Garibay, 143 F.3d 534,

539 (9th Cir. 1998). But Defendant failed to raise this issue before the District Court, despite ample

opportunity. Specifically, the chronology of events was such that Defendant, once adjudicated

mentally retarded, could have filed a supplemental memorandum in support of his motion to

suppress that specifically addressed the question of whether he was capable of signing a knowing,

intelligent, and voluntary waiver of his rights. He did not. Defendant also did not object at trial to

the admission of his statement on this basis.5 As a general rule, this Court refuses to consider an

issue on appeal that a defendant did not first raise before the District Court, except in “‘exceptional

cases or particular circumstances’” not present here. See U.S. v. Pickett, 941 F.2d 411, 415 (6th Cir.

1991) (quoting Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461) (6th Cir.

1988), cert. denied, 488 U.S. 880 (1988)) (permitting appeal on the merits when both parties had

extensively briefed the “wholly legal” issues at stake). Defendant has therefore waived his claim.

         Further, even absent waiver, Defendant’s claim fails on the merits. In Garner v. Mitchell,

557 F.3d 257, 264, 270-71 (6th Cir. 2009), this Court held that a defendant in the “‘borderline range


        5
            Defendant’s counsel objected to admission of the statement but on the basis that portions of it were
unintelligible, thus calling into question the accuracy of the text which ran across the screen as an aid to listeners.

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United States v. Shields

of intelligence’” who also suffered from a troubled upbringing and poor education knowingly,

intelligently, and voluntarily waived his Miranda rights. Noting that “diminished mental capacity

alone does not prevent a defendant from validly waiving his or her Miranda rights,” we reasoned that

this factor must instead “be viewed alongside other factors, including evidence of the defendant’s

conduct during, and leading up to, the interrogation.” Id. at 264-65. In this case, the District Court

found that:

       Defendant was alert and attentive and manifested no outward signs of being
       incoherent or otherwise incapable of giving a knowing, intelligent, and voluntary
       waiver of his rights. Using the term “Miranda” specifically, Defendant stated he
       knew his rights and wanted to make a statement.

       (Order Denying Defendant’s Motion to Suppress at 3.) Defendant’s cooperativeness and

coherency thus demonstrate that he grasped both the nature of the charges against him and the

consequences that could flow from his interactions with police to effectuate a knowing, intelligent,

and voluntary waiver of his Miranda rights. See Garner, 557 F.3d at 265. Moreover, retarded or

not, he was capable of recounting facts he had experienced.

                4. Imposition of Mandatory Life Sentence for Kidnapping Charge

       Defendant’s final argument relies heavily on Atkins v. Virginia, 536 U.S. 304, 321 (2002) to

support the proposition that, because he is mentally retarded, his mandatory sentence of life

imprisonment for kidnapping resulting in the death of the victim violates his Eighth Amendment

protection against cruel and unusual punishment. We review this constitutional challenge de novo.

In Atkins, the Supreme Court held that “death is not a suitable punishment for a mentally retarded

criminal.” 536 U.S. at 321. Indeed, Defendant was saved from the possibility of capital punishment


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by the District Court’s reliance on Atkins. Defendant now asks this Court to extend Atkins by

holding that his sentence of life imprisonment, made mandatory by statute, 18 U.S.C. § 1201(a),

similarly violates the Eighth Amendment because it fails to account for his inherently reduced

culpability.

        Atkins, however, has proven resistant to expansion beyond capital punishment. See U.S. v.

Tucker , 204 Fed. Appx. 518, 521-22 (6th Cir. 2006); U.S. v. Laffoon, 145 Fed. Appx. 964, 964 (5th

Cir. 2005). In Tucker, this Court explicitly held that “imposing a mandatory minimum sentence on

a defendant with limited mental capabilities does not violate the Eighth Amendment ban on cruel

and unusual punishment.” 204 Fed. Appx. at 521. Because we do not agree with Defendant’s

assertion that the distinction between capital and non-capital sentences is “artificial” when assessing

proportionality, we follow the holding in that case. See id. The Supreme Court and other courts

have consistently recognized the crucial difference between capital and non-capital sentences. See

e.g., Harmelin v. Michigan, 501 U.S. 957, 994 (1991) (reasoning that “proportionality review is one

of several respects in which we have held that ‘death is different,’ and have imposed protections

which the Constitution nowhere else provides”). As a matter of retributive justice, life imprisonment

is not an unconstitutionally severe punishment for the crime of kidnapping and participating in the

murder of Lott.

        For the foregoing reasons, we affirm the judgment of the District Court.




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        CLAY, Circuit Judge, dissenting. I write separately because Shannon Shields, a mentally

retarded defendant, suffered a serious injustice when the district court largely disregarded and

minimized his mental status during the trial proceedings. As a result, Shields’ right to a fair and

constitutionally adequate trial was seriously compromised. I therefore respectfully dissent.

        The kidnapping and murder of Jerrell Lott was a senseless and shocking crime. Soon after

apprehending Shannon Shields and his cousin, Sonny Shields, the government announced its

intention to seek the death penalty against the two accused men. Shannon Shields then requested

a pretrial hearing to determine whether he was mentally retarded and thus ineligible to face the death

penalty under Atkins v. Virginia, 536 U.S. 304, 321 (2002).

        The district court held an extensive eight-day evidentiary hearing on the matter. In the course

of the hearing, the defense presented the expert testimony of two psychologists, as well as the lay

testimony of Shields’ parents, his sister, his longtime girlfriend, several of his former educators, and

a prison counselor. The government presented the competing expert testimony of two additional

psychologists. After considering the evidence and post-hearing memoranda, the district court issued

a lengthy order finding Shields mentally retarded and thus ineligible to face the death penalty. (See

RE 557, Order on Mental Retardation.)

        The hearing produced ample evidence to conclude that Shields is mentally retarded. In five

IQ tests administered over Shields’ lifetime, his scores ranged from 69 at the lowest to 73 at the

highest.1 Shields cannot live independently, and he does not work. He relies extensively on the


       1
       According to the Diagnostic and Statistical Manual of Mental Disorders (4th ed.–Text
Revision) (“DSM-IV”), “significantly subaverage intellectual functioning” is defined as an IQ of 70

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United States v. Shields

assistance of his parents and his girlfriend to complete common, everyday tasks. Shields cannot

prepare his own food, follow a recipe, or shop for groceries. He cannot budget his own money, pay

his monthly bills, or master a checkbook. Concepts that are, to the normal-functioning person,

simple matters of common sense, are beyond Shields’ grasp. To cite but a few salient examples,

Shields does not understand the obligation to repay purchases made with a credit card. He does not

see the need for and lacks the follow-through to obtain an identification card. He does not grasp the

dangers of leaving a hot iron unattended.

       Shields is completely unable to set his own priorities, to self-direct, or to complete even the

most rudimentary tasks without the continual supervision and frequent reminders of a parent or other

responsible adult. Although Shields has worked for brief periods in several unskilled positions, such

as a dishwasher and a furniture mover, he has never been able to maintain steady employment due

to his innate mental limitations. His inability to follow directions or to work productively without

continual direction has also hindered his job prospects. As a result of these limitations, Shields has

received some form of social security disability assistance since his teenage years.

       Shields’ mental limitations became manifest early in his childhood education. Without

parental assistance, he struggled with grooming and personal hygiene, and he did not relate to his

classmates in “age-appropriate” ways. After a year in kindergarten, Shields was unable to even

recognize his own name in writing, let alone read or write it himself, despite his teacher’s personal

efforts to help him master this simple goal. In later years, Shields was disallowed from riding the



or below.

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school bus because of his lack of independence and his frequent outbursts. In the classroom, Shields

required constant individualized attention and instruction because he was unable to work

independently or to stay on task without a teacher’s direct supervision. Although Shields initially

started on a mixed track of special education and regular classes, he struggled with the regular

curricula and fell appreciably behind his peer group. By the ninth grade, school administrators

completely removed Shields from the regular classroom and placed him on track to receive a

“certificate of attendance” rather than a high school diploma.            Shields’ special education

programming did not teach mainstream educational curricula, but instead focused on functional

skills, such as learning how to count money and how to write basic information, like his address and

his parents’ names. Ultimately, Shields dropped out of school entirely by the tenth grade.

        Despite the extent of Shields’ mental deficiencies, his hindrances are not of the type that

would be readily apparent to the average observer. As an adult, Shields is now “careful about his

appearance” and “tries to keep himself well-groomed.” He can speak well, and he possesses some

limited reading skills, although his comprehension is sub-average, and he “lack[s] the ability to

engage in deep and meaningful conversation.” He is skilled at convincing others around him to

accomplish tasks on his behalf, he ignores social strictures (for example, he drives although he has

no license to do so), and he deceives others to achieve his personal objectives. Shields is often

deceptive and manipulative; however, his stratagems are “transparent” and “not well thought out.”

Shields is gullible, susceptible to the influence of his peers, and he seemingly lacks ambition or long-

term goals of his own. To quote the district court, Shields is an individual whose mental limitations



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render him “largely disconnected from the types of social responsibilities and tasks expected of

regularly functioning adults in society.”

         The district court deserves commendation for the attention it devoted to Shields’ mental

retardation hearing and its evaluations of Shields’ eligibility for the death penalty. However, a

defendant is not mentally retarded for purposes of the death penalty alone. As with any factual

finding in a criminal proceeding, the district court’s rulings on mental retardation should have proven

salient throughout the remainder of Shields’ trial proceedings. Unfortunately, after making detailed

factual assessments about Shields’ mental limitations, the district court then inexplicably shelved

those facts and proceeded as though Shields’ innate limitations did not exist for the remainder of his

trial.

         While defense counsel’s willingness to also ignore Shields’ mental retardation is

incomprehensible, it is equally inexcusable for the district court to have set aside its own factual

findings for the remainder of the trial. Although the district court was not obligated to try defense

counsel’s case, the court was not relieved of its duty to avoid glaring errors or to make independent

inquiries to ensure that Shields received his right to a fair trial.

         Specifically, the district court should have considered Shields’ mental retardation when it

ruled on the motion to suppress. Shields freely admits that he received a Miranda warning and that

he waived his rights before he provided his recorded statement to police. See Miranda v. Arizona,

384 U.S. 436, 444 (1966). However, for better or worse, Miranda’s now-familiar questions are an

imperfect and approximate instrument for measuring the validity of a suspect’s waiver. Ultimately,

whether a suspect validly waived his rights depends not only on whether the Miranda warning was

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properly given, but also on whether the waiver of the suspect’s Miranda rights was made

“voluntarily, knowingly, and intelligently.” Id. at 444–45.

        This fact-sensitive inquiry has two distinct dimensions. Moran v. Burbine, 475 U.S. 412, 421

(1986) (citing Edwards v. Arizona, 451 U.S. 477, 482 (1981); Brewer v. Williams, 430 U.S. 387, 404

(1977)). For a waiver to have been “voluntary,” it must have been “the product of a free and

deliberate choice rather than intimidation, coercion, or deception.” Id. For the waiver to have been

made “knowingly and intelligently,” it must have been made “with a full awareness of both the

nature of the right being abandoned and the consequences of the decision to abandon it.” Id. “Only

if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and

the requisite level of comprehension may a court properly conclude that the Miranda rights [were]

waived.” Id. (citing Fare v. Michael C., 442 U.S. 707, 725 (1979) (internal quotation marks and

additional citations omitted)).

        Defense counsel only addressed the issue of voluntariness with respect to the Miranda

waiver, summarily arguing that Shields’ statement ought to be suppressed because “coercive police

activity overbore his will.” After considering the testimony of the interrogating officers, the district

court disagreed with defense counsel’s argument. It would appear that the district court correctly

decided the issue of voluntariness, inasmuch as no evidence was elicited to suggest that the officers

deliberately intimidated, coerced, or deceived Shields into giving an involuntary statement. See

Garner v. Mitchell, 557 F.3d 257, 274 (2009) (en banc) (Moore, J., dissenting).

        However, the district court never reached the second part of the waiver inquiry. The court

never asked whether Shields—with all his innate mental deficiencies—possessed “the maturity,

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intelligence, and competency to make a knowing and intelligent waiver.” Id. at 274. Despite the fact

that the district court’s own earlier, detailed ruling strongly cast doubt on that issue, the court simply

ignored Shields’ mental retardation and failed to take it into account for the purposes of the

suppression motion.

        The government would have us fault defense counsel for this omission, arguing that Shields

waived the opportunity to raise the “knowing and intelligent” argument because counsel failed to

make that contention before the district court. If so, the government only highlights for our attention

a glaring ineffective assistance of counsel claim.

        Regardless of what defense counsel did or did not argue, however, the district court’s inquiry

should not have ended with respect to the officer’s conduct. Id. at 275–76. The waiver inquiry

encompasses two distinct parts, which work conjunctively, are therefore indivisible, and must both

be considered to determine whether a valid waiver was made. See id. at 275. Deciding the validity

of a waiver based solely on police conduct, without regard for whether the defendant had the capacity

to make a knowing and intelligent waiver, reads the second element out of the waiver inquiry, and

is clearly out of line with established Supreme Court Miranda jurisprudence. Id. In any event, it is

utterly perplexing that Shields’ mental retardation did not arise as a topic of concern during the

suppression hearing, whether spontaneously or by the court’s direction, given the obvious connection

between Shields’ mental limitations and his capacity to make a knowing and intelligent waiver of

his Miranda rights.

        As the majority correctly points out, finding a defendant mentally retarded does not preclude

him from validly waiving his Miranda rights. See Garner, 557 F.3d at 264–65 (Rogers, J., majority).

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United States v. Shields

However, the waiver inquiry is always fact-sensitive and dependent on the totality of the

circumstances—even more so in a case like this one. Id. In this instance, the evidence indicates that

Shields lacks basic life skills, is easily manipulated, and operates largely outside the realm of

common sense reasoning. Under such circumstances, Shields’ ability to mention Miranda by name

is not necessarily indicative of his grasp of the charges against him or his understanding of the

consequences of waiving his rights.2 Unfortunately, this Court has no basis on which to evaluate

Shields’ capacity to make a valid waiver, because the district court failed to make the necessary and

reasonable inquiries required to address the waiver issue.

       The district court also should have taken Shields’ mental limitations into account when

Shields timely asked to wear street attire to his trial. Citing two prior cases from this Circuit, the

majority reasons that the district court was not obligated to significantly delay proceedings to

accommodate Shields’ last-minute request. See United States v. Brown, 367 F.3d 549, 553–54 (6th

Cir. 2004); United States v. Williams, 641 F.3d 758, 767 (6th Cir. 2011). However, Brown and

Williams are clearly distinguishable from the case before us, because neither of those cases involved

a mentally retarded defendant.

       By contrast, in this case the district court was thoroughly aware that Shields’ mental

retardation may have rendered him slow to fully appreciate the nature and the seriousness of the

proceedings, including the effects his prison clothes might have on the jury’s impartiality. Rather



       2
        Of course, these findings also bear directly on the central factual dispute raised by the
defense—whether it was Defendant’s cousin, Sonny Shields, who was primarily responsible for
orchestrating the kidnapping and ultimately murdering Jerrell Lott.

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United States v. Shields

than accommodate Shields’ reasonable request, the district court instead offered the defense an even

more limited option than was granted by the courts in Brown and Williams. The district court’s

proposed solution—that Shields wear a sport coat over his prison uniform—was really no solution

at all. The court’s limited offer was insufficient to protect Shields’ right to an impartial jury,

particularly given that his request, though admittedly belated, was technically timely. Furthermore,

there was no substance to the district court’s contention that permitting a short recess to allow

Shields to change clothes would have significantly delayed the proceedings.

        Finally, it is troubling that the escape charge was not severed from the rest of Shields’ trial.

At best, the evidence elicited on the escape count was minimal. Shields’ attempted “escape” was

childishly ill-planned and ill-thought out, which is perhaps unsurprising given his mental retardation.

While awaiting trial on the kidnapping and murder charges, Shields was segregated in a high-security

prison that allowed him one hour outdoors in an isolated pen housed within the prison’s recreation

yard. Shields and a fellow inmate pried loose the wire fence of their segregation pens, but they were

quickly apprehended clinging to the inner perimeter fence of the recreation yard. Even if Shields’

ineffective defense counsel unjustifiably waived its chance to request a severance of the escape

charge, its facts were obviously weak and entirely tertiary to the other issues at trial. The district

court should have been more vigilant in protecting Shields against the inclusion of this wholly

unrelated, but highly prejudicial charge. At a minimum, some inquiry by the district court with

respect to this issue would have been appropriate.

        In any criminal trial, the presiding judge has an obligation to steward the proceedings in a

manner that takes into account the full range of facts before the court and that steers clear of obvious

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United States v. Shields

violations of the defendant’s constitutional rights. I cannot agree that Shields received this

consideration when the district court largely disregarded Shields’ mental deficiencies, shunted aside

its own detailed factual findings with respect to Shields’ mental retardation, and failed to take into

account the obvious inadequacies of the ineffective assistance defense counsel provided to the

defendant. Accordingly, and for the reasons discussed above, I respectfully dissent.




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