Danta DAVIS, Petitioner-Appellant, v. Dennis STRAUB, Warden, Respondent-Appellee, 430 F.3d 281

ROGERS, J., delivered the opinion of the court, in which HOOD, D. J., joined. MERRITT, J. (pp. 291-299), delivered a separate dissenting opinion. AMENDED OPINION ROGERS, Circuit Judge. Respondent-Appellee Dennis Straub has petitioned for rehearing following this panel’s decision to order the district court to grant Petitioner-Appellant Danta Davis’s habeas corpus petition. In this case, a Michigan jury convicted Davis of murdering one woman and two children in 1996, and Davis was sentenced to multiple concurrent life sentences.

During his joint trial with co-defendant Nathan Bell, Davis sought to have witness Damaris Jourdan testify as to Jourdan’s prior statements, which tended to exculpate Davis, made to police and a private investigator. Before Jourdan took the witness stand, the prosecutor, in front of Jourdan, informed the court that Jourdan was a suspect and should consult with a lawyer before testifying. Jourdan, after consulting with his lawyer, invoked his Fifth Amendment privilege against self-incrimination.

The court stated that “whether or not [Jourdan] testifies is a choice that is his alone,” and the court allowed him to make a blanket invocation without taking the stand and responding to individual questions. The state appellate court affirmed Davis’ conviction, determining that the trial court committed harmless error by allowing the witness to determine the breadth of the privilege against self-incrimination.

After the district court denied his petition for habeas corpus, this court certified three questions for appeal on habeas review: (1) whether the prosecutor intimidated Jourdan into invoking his privilege against self-incrimination in violation of Davis’s right to due process, compulsory process, and presentation of his defense; (2) whether Davis was denied a fair trial and his right to present a defense when the trial court sustained Jourdan’s blanket assertion of the privilege against self-incrimination; and (3) whether Davis was deprived of effective assistance of counsel when defense counsel, after failing to object to Jourdan’s blanket assertion of his Fifth Amendment right not to incriminate himself, failed to offer into evidence Jour-dan’s prior exculpatory statements.

In our earlier opinion, we unanimously held that the prosecutor did not engage in witness intimidation. A majority of the panel also held that Davis was denied a fair trial and the right to present a defense when the court allowed Jourdan to assert a blanket invocation of his right not to incriminate himself. We ruled in the alternative that, if such an invocation of the Fifth Amendment were permissible, Davis received ineffective assistance of counsel when defense counsel did not seek to introduce Jourdan’s prior exculpatory statements.

After reconsidering our prior decision, we vacate that prior decision and affirm the district court’s denial of Davis’s petition in all respects because the state courts did not act contrary to or unreasonably apply clearly established federal law, as determined by the Supreme Court. I. We repeat in this

section the facts of the case as recounted in our earlier opinion: Sheila Jones and her two children, seven-year-old Darquelle Ray and four-year-old Shawanna Ray, were murdered on September 26, 1996. Jones was killed in the home of Davis’s father, Jimmy Motley, while the children were killed in their own home, down the street from Motley’s. Motley, the boyfriend of Jones, was in jail at the time of the murders. Davis, Bell, and others were in Motley’s home on the evening of September 26, when Motley called to speak with Jones, as he frequently did.

Davis went down the street to Jones’s home and brought her back to Motley’s house, where she was killed later that evening. The children were killed soon thereafter. Davis and Bell were tried in a joint trial before separate juries. The prosecution’s theory of the case was that Davis and Bell cooperated in beating and killing Jones and her children. Davis’s theory of the case was that Bell killed Jones and the children by himself and that Davis assisted only in disposing of Jones’s body, which Davis admitted doing out of fear of retribution from Bell and his family if he refused.

Bell confessed to the murders, but also attempted to incriminate Davis, while Davis maintains his innocence. Most of the witnesses implicating Davis were related to or affiliated with Bell. The record reflects no physical evidence linking Davis to the murders. In Davis’s testimony at the trial, he claimed the only person (other than himself and Bell) in the house when Jones was being beaten was then fifteen-year-old Damaris Jourdan. Jourdan’s pre-trial statements strongly tend to exonerate Davis of the murder.

He made two statements to police approximately one week after the murders, on October 2, 1996, and October 3, 1996. Both Jourdan’s mother and father were present for the first statement, which was not Mirandized. In that statement, Jour-dan reported witnessing Bell, and Bell alone, beating, “stomping,” and grabbing Jones by the neck, both inside the house and in the front yard and finally dragging her from the yard into the garage. Jour-dan then reported leaving the area. The day after his first statement, the police brought Jourdan and his mother back to the station for another interview.

This time, the police read him his rights “per the Miranda Warning Card, which he stated he waived.” His mother was also informed of his rights. The police then informed Jourdan that another suspect had implicated him in the crime. After waiving his right to remain silent and to have an attorney present, Jourdan denied any involvement in the murders. He reiterated his statement from the previous day and elaborated somewhat, stating that, just before leaving, he heard Jones breathing in the garage and saw Bell standing nearby holding a black and yellow handled screwdriver.

Jourdan reportedly said to Bell, “Leave her alone,” to which Bell responded, “She saw my face.” Approximately ten months later, Jour-dan gave a statement to a private investigator hired by Davis’s defense counsel. This statement, while more detailed, is very consistent with the earlier ones given to police. In addition to the details recited earlier, Jourdan reported that Bell told him that he planned on killing Jones’s children (who were still in their home down the street) because they knew where their mother had gone. Bell reportedly attempted to get Jourdan’s help in killing the children.

Jourdan reported that he refused to help and walked off alone before Jones was killed. He repeatedly told the investigator that neither he nor Davis had hit or stabbed Jones at any time and that Davis was not even outside to witness the violence. His eyewitness account is consistent with Davis’s testimony at trial. Jourdan’s account exonerates himself and strongly tends to exonerate Davis of murder.

Apparently unaware that either the prosecutor or the trial judge would prompt Jourdan to assert his Fifth Amendment privilege, Davis’s defense counsel, Phillip Beauvais, identified Jourdan by name in his opening statement and told the jury to expect to hear him recount the version of events described above. During the trial, after Jourdan was called by the defense and sworn in as a witness, Prosecutor Arthur Busch requested a sidebar. The judge excused the jury and discussed the prosecutor’s concerns on the record.

Busch informed the court, within earshot of Jourdan, that Jourdan was a suspect in the case and should be informed of his Fifth Amendment rights before he testified. After questioning Jourdan briefly, the judge obtained counsel for him, who spoke with Jourdan and his parents and reviewed relevant documents. On advice of counsel appointed by the judge, Jourdan invoked his Fifth Amendment privilege against self-incrimination and refused to testify. The trial court did not follow the normal procedure of putting the witness on the stand and allowing him to invoke the privilege as to individual questions.

Instead, the court allowed Jourdan not to testify or answer any questions at all, stating “whether or not he testifies is a choice that is his alone under these circumstances.” This sparked a heated exchange between Davis’s defense counsel and the prosecutor: BEAUVAIS: I think what is happening today is that this young man is afraid that if he takes the stand and testifies truthfully and that truthful testimony will help Danta Davis that, in fact, the Prosecutor will then, as retribution for him testifying, will then charge him with a crime.

I believe the only reason that this was brought forward at this particular time was to keep this young man from testifying. And I believe that because of that my client is being denied his right to a fair trial and is denied his right to have his witnesses appear, witnesses that can certainly exonerate this person. BUSCH: This is not an intimidating thing, that is to try and protect the People’s right, as well as Mr. Jourdan’s right. Quite frankly, if we had our druthers, we would prefer him to testify in this matter because we think it would bring out the truth.

But there is no— there is no merit to any allegation that our office somehow is involved in some intimidation of Mr. Jourdan. We have made it clear throughout, since this trial started, to defense counsel that at some point if [Jourdan] was to be summoned that he would need to have counsel and that there should be some discussion of that with this particular individual. The trial continued without Jourdan’s testimony, and both Davis and Bell were convicted and received multiple life sentences. No charges have been brought against Jourdan for the murders.

Davis made a motion for a new trial based, in part, on his objections to the handling of Jourdan’s testimony by the prosecutor and trial judge. This resulted in an evidentiary hearing where both defense counsel Beauvais and prosecutor Busch testified regarding their discussions and actions about Jourdan leading up to the trial. It is undisputed that the prosecutor never charged Jourdan with any participation in the crime. Busch testified that police had notified him that some evidence existed implicating Jourdan in the crime, primarily the testimony of Bell that Jourdan had also stabbed Jones.

At the time of Davis’s trial, however, Busch did not believe the case was strong enough to pursue charges against Jourdan, although he did allegedly make some additional efforts to develop the evidence after Davis’s trial concluded. Busch testified that prior to Jourdan’s appearance in court, he had several conversations with Beauvais, at least once in chambers with the trial judge, wherein he raised his Fifth Amendment concerns and notified Beauvais of the need for Jourdan to have separate representation.

Before issuing his order regarding the motion for a new trial, the judge reported that he remembered discussions in chambers about Jourdan before he was called, but he could not remember the precise issues raised. Beauvais repudiated Busch’s account and claimed that the only conversations that they had regarding Jourdan pertained to possible hearsay objections to his testimony.

Furthermore, Beauvais testified that he would not have mentioned Jourdan by name in his opening statement, nor would he have called him to the stand in front of the jury, if the prosecutor or the court had made him aware of potential Fifth Amendment concerns. Jourdan’s name appeared on both the defense and the prosecution’s witness lists, which were exchanged long before trial. Beauvais, therefore, gave notice to the prosecutor of Jourdan’s upcoming appearance and provided ample time for him to notify defense counsel of his concerns prior to opening statements.

The court denied Davis’s motion for a new trial finding that defense counsel “knew or should have known — with emphasis on thé should have known — that Mr. Jordan [sic] required some treatment outside the presence of the jury before he was called to the stand.” It rejected his claim that the prosecutor had acted improperly or in an intimidating fashion by alerting the court of his constitutional concerns. Davis then appealed to the Michigan Court of Appeals, which held that the trial judge had misstated the law in determining that the witness, not the court, could decide for himself if the privilege applied.

Nevertheless, the Court of Appeals affirmed the lower court’s decision because “the trial court also found that there was a reasonable basis for Jordan [sic] to fear self-incrimination .... ” People v. Davis, No. 207725, 2000 WL 33385391, at *3 (Mich.Ct.App. Dec.26, 2000) (per curiam). Davis properly and timely exhausted his claims in state court and then filed this petition for a writ of habeas corpus in federal district court. A magistrate judge issued a report and recommendation denying his petition, which was adopted by the district court.

In the report, the Magistrate Judge determined that Jourdan’s blanket assertion of the privilege did not provide grounds to grant the writ because “[e]ven his admission that he was present during the murder, although undisputed and not sufficient in itself to convict him of any crime, would be one link in the chain of evidence establishing his guilt.” Davis appeals the judgment of the district court. II.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), permits federal courts to grant petitions for habeas corpus only when a state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States .... ” The Supreme Court has said that a decision is contrary to clearly established precedent “if the state court applies a rule that contradicts the governing law set forth in our cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” Williams v.

Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Holdings of the Supreme Court, not dicta, clearly establish federal law. Id. at 412, 120 S.Ct. 1495. Ultimately, “[a] federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous.” Mitchell v. Esparza, 540 U.S. 12, 17, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003). This court reviews the legal conclusions of the district court de novo and its factual findings for clear error. See Lott v. Coyle, 261 F.3d 594, 606 (6th Cir. 2001).

We review de novo the mixed factual and legal issue of whether Davis received ineffective assistance of counsel. See id. After reconsidering our earlier decision, we hold that the state courts did not act contrary to or unreasonably apply precedent of the Supreme Court. III. We reaffirm our earlier holding that the prosecutor in this case did not engage in any unconstitutional intimidation of Jourdan by ensuring that Jourdan was aware of his right not to incriminate himself. In Webb v.

Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), the Supreme Court established a standard for finding a constitutional violation for witness intimidation: “the unnecessarily strong terms used by the judge could well have exerted such duress on the witness’ mind as to preclude him from making a free and voluntary choice whether or not to testify.” The following year, we applied Webb to a case where the prosecutor sent a Secret Service agent to communicate ex parte with a potential witness and threaten prosecution if he testified. “[T]he Government’s action here substantially interfered with any free and unhampered determination the witness might have made as to whether to testify and if so as to the content of such testimony.” United States v.

Thomas, 488 F.2d 334, 336 (6th Cir. 1973). The prosecutor’s conduct in the instant case simply does not rise to the level of intimidation present in Webb and Thomas. Here, the prosecutor requested a sidebar with the judge, wherein he informed the court that the witness was a suspect and should be informed of his constitutional rights. The judge then proceeded to question the witness briefly and appointed independent counsel to advise him of his rights.

Neither the prosecutor’s nor the judge’s conduct was unconstitutional, especially considering the ethical obligation, imposed on prosecutors by the ABA’s model guidelines, to advise a witness who is to be interviewed of his or her rights against self-incrimination and the right to counsel whenever the law so requires. It is also proper for a prosecutor to so advise a witness whenever the prosecutor knows or has reason to believe that the witness may be the subject of a criminal prosecution. ABA Standards for the Administration of Criminal Justice § 3 — 3.2(b).

Regardless of the prosecutor’s motives or the propriety of waiting until the witness was called to the stand to inform the court of his concerns, we cannot say that the Michigan Court of Appeals unreasonably applied Supreme Court precedent in its holding that the prosecutor did not intimidate Jourdan into invoking the privilege. IV.

Because the Supreme Court has never held that permitting a witness to assert his or her Fifth Amendment privilege against self-incrimination without taking the witness stand violates a defendant’s right to a fair trial, the trial court did not act contrary to clearly established federal law when it allowed Jourdan to invoke the privilege before taking the witness stand. To support his claim that the state courts’ handling of Jourdan’s Fifth Amendment privilege against self-incrimination was contrary to clearly established federal law, Davis refers us to two Supreme Court cases: Hoffman v.

United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), and Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Davis argues that Hoffman clearly established that witnesses must invoke their Fifth Amendment privilege in response to each posed question and that Washington required the trial court to compel Jourdan to testify because, otherwise, , Davis would have been arbitrarily deprived of his right to a fair trial.

Our review of these cases, however, convinces us that Hoffman and Washington did not clearly establish how to resolve the conflict between a witness’s Fifth Amendment privilege and a defendant’s right to present his defense. Because these cases do not resolve the issue, the state courts necessarily could not have acted contrary to clearly established Supreme Court precedent. The witness Jourdan invoked his Fifth Amendment right not to testify, after consulting with independent counsel, without unconstitutional intimidation by the prosecution.

The trial court did not require Jourdan to take the stand and invoke his right in response to each question. The only way to hold that this procedure was “contrary to” established Supreme Court law is to determine that Supreme Court case law requires defense witnesses invoking the Fifth Amendment right against self-incrimination to take the stand and invoke the right on a question-by-question basis.

Such a rule doubtless has merit, see In re Morganroth, 718 F.2d 161, 167 (6th Cir.1983), although it could be argued that the trial court should have discretion to permit blanket invocation of the right in appropriate circumstances. But the petitioner has referred to no Supreme Court case holding that such a procedure is required for the benefit of criminal defendants. Hoffman v.

United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), did not hold that a witness’s privilege against self-incrimination must yield in favor of the defendant’s right to put on his defense, because the Court did not consider a witness’s invocation of the privilege. In Hoffman, the defendant, not his witness, claimed the privilege during a grand jury hearing. The Court, accordingly, did not consider the relationship between the witness’s privilege against self-incrimination and the defendant’s right to put on his defense.

Hoffman, moreover, announced no rule proscribing the blanket assertion of the privilege against self-incrimination. In fact, the Court upheld the defendant’s invocation of the privilege as to very preliminary questions. The opinion in Hoffman does state at one point, “To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” 341 U.S. at 486-87, 71 S.Ct. 814.

This single sentence by its terms, and certainly in context, does not necessarily imply — and clearly does not hold — that defense witnesses must always take the stand to invoke the privilege. See Arredondo v. Ortiz, 365 F.3d 778, 782 (9th Cir.2004) (holding, in a case extremely similar to the one at bar, that Hoffman does not mandate question-by-question invocation of the privilege). In context, the Court may have been simply admonishing trial courts to use their good judgment when determining whether a responsive answer would tend to incriminate the witness. Hoffman, 341 U.S. at 486, 71 S.Ct. 814.

Indeed, the Court immediately followed by saying: “The trial judge in appraising the claim ‘must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.’ ” Id. at 487, 71 S.Ct. 814 (citing Exparte Irvine, 74 F. 954, 960 (C.C.S.D.Ohio 1896) (Taft, I.)). It is true that our circuit in Morganroth, supra, stated as follows: A blanket assertion of the privilege by a witness is not sufficient to meet the reasonable cause requirement and the privilege cannot be claimed in advance of the questions.

The privilege must be asserted by a witness with respect to particular questions, and in each instance, the court must determine the propriety of the refusal to testify. See Hoffman, 341 U.S. at 486-88, 71 S.Ct. 814. 718 F.2d at 167. The issue resolved in Morganroth, however, was not whether the invocation of the privilege required that the witness take the stand. The witness in that case had in fact taken the stand.

Instead, the issue was whether the witness “must supply personal statements ... or ... evidence with respect to each question propounded to him to indicate the nature of the criminal charge which provides the basis for his fear of prosecution” in the particular context of possible incrimination for perjury. Id. at 169. Such a requirement was warranted where the witness feared incriminating himself of perjury by giving testimony inconsistent with prior sworn testimony, because “the incriminating nature of the answer is not evident from the implications of the question in the setting in which it is asked.... ” Id.

Not only is this a different issue, but also the issue was raised in the context of an appeal by a witness from an order directing him to testify, not in the context of a criminal defendant’s right to present testimony. The statement in Morganroth about blanket assertions and particular questions is thus at best dictum with respect to the issue presented in this case: whether a criminal defendant has a due process right to prevent witnesses from invoking the Fifth Amendment without taking the stand and responding to individual questions, regardless of the circumstances.

In any event, AEDPA calls for us to interpret clearly established federal law, “as determined by the Supreme Court of the United States,” not the United States Courts of Appeals. Indeed, the Supreme Court has considered that a state court may disagree with the law of its federal circuit: “A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous.” Mitchell v. Esparza, 540 U.S. 12, 17, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003). The Supreme Court’s decision in Washington v.

Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), also fails to warrant a grant of habeas corpus under AED-PA. It is true that, entirely outside the Fifth Amendment self-incrimination context, Washington v. Texas clearly established that, under the Sixth Amendment, a state may not arbitrarily deny a defendant the right to call a witness whose testimony is relevant and material to the defense. Washington, 388 U.S. at 23, 87 S.Ct. 1920. But the Michigan Court of Appeals’ decision was neither contrary to nor an unreasonable application of Washington v. Texas. Washington v.

Texas does not hold that a defendant has the right to present any and all witnesses. The Court addressed the limits of a defendant’s right to call witnesses and held that a state cannot create “arbitrary rules that prevent whole categories of defense witnesses from testifying on the basis of a priori categories that presume them unworthy of belief.” Id. at 22, 87 S.Ct. 1920. The Court proceeded to hold that Texas’ rule against allowing purported accomplice testimony was an “absurdity.” Id.

Because the Court did not consider the question of a witness’s Fifth Amendment privilege against self-incrimination anywhere in its opinion, it cannot be said that the Court created clearly established law against a blanket assertion of the privilege or resolved how courts should treat the tension between the witness’s and the defendant’s interests.

See id. at 23 n. 21, 87 S.Ct. 1920 (“Nothing in this opinion should be construed as disapproving testimonial privileges, such as the privilege against self-incrimination ..., which [is] based on entirely different considerations from those underlying the common-law disqualifications for interest.”). y. The remaining basis for granting the writ — that Davis received ineffective assistance of counsel when defense counsel did not try to introduce Jourdan’s prior unsworn statements into evidence — fails because Davis was not prejudiced by his counsel’s failure to seek the admission of Jourdan’s prior statements.

Constitutionally ineffective assistance of counsel requires both that defense counsel’s services fell below that of a reasonably competent attorney and that the deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish prejudice, Davis must demonstrate that Jourdan’s prior unsworn statements were admissible. But the contrary was held by the Michigan Court of Appeals, which determined as a matter of state evidence law that Jourdan’s prior statements would not have been admissible in any event. See People v.

Davis, No. 207725, 2000 WL 33385391, at *3 (Mich.Ct.App. Dec.26, 2000) (per curiam) (“[The statements] do not qualify as statements against his penal interest for purposes of MRE 804(b)(3).”). We are bound by the state court’s determination of its own law. Hutchison v. Marshall, 744 F.2d 44, 46 (6th Cir.1984); see also Vroman v. Brigano, 346 F.3d 598, 603 (6th Cir.2003); Israfil v. Russell, 276 F.3d 768, 771 (6th Cir.2001); Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir.1986). Because we cannot logically grant the writ based on ineffective assistance of counsel without determining that the state court erred in its

interpretation of its own law, we are constrained to uphold the district court’s denial of the writ. Finally, a different result is not required by the asserted tension between a constitutional holding that a witness may not be required to testify for fear of providing an incriminating statement and a state-law evidentiary holding that prior statements by the same witness were not admissible as statements against penal interest.

Davis does not refer us to any authority for the proposition that these determinations are legal mirror-images of each other, and certainly the Supreme Court has not so held as a matter of constitutional law. The state courts, therefore, did not act contrary to or unreasonably apply federal law when determining that Davis received effective assistance of counsel. VI. Upon reconsideration, we VACATE our prior order and AFFIRM the judgment of the district court. . This name is sometimes spelled ''Jordan'' in the record. .

The record of Jourdan's statement to the private investigator is in question-and-answer format, similar to a trial transcript, while the statements to the police are summaries, apparently written by an officer present at the interviews. . Davis also refers us to several circuit court cases, including cases from this circuit. However, AEDPA permits us to consider only federal law, “as determined by the Supreme Court of the United States....’’ 28 U.S.C. § 2254(d)(1). .

Defendant suggests that the first question for Jourdan would have been: "Were you present?” A strong case can be made that such an initial question could properly warrant invocation of the privilege. See Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). If so, it is arguably a pointless formality, within a trial court's discretion to forgo, to insist that the witness take the stand. . To bolster his reading of Hoffman, Davis argues that Mitchell v.

United States compels a question-by-question invocation because the Court stated "that where there can be no further incrimination, there is no basis for the assertion of the privilege.” 526 U.S. 314, 326, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999). But this dictum in Mitchell does not assist Davis. See Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (stating that "clearly established” refers to holdings, not dicta).

First, the Mitchell Court considered two issues not before us in this case: whether a defendant's guilty plea waives his privilege against self-incrimination in the sentencing phase of a trial, and whether a sentencing judge can draw an adverse inference from the defendant’s silence. The Court did not consider the Fifth Amendment right of a witness in relation to the defendant's right to present his defense. Second, the Court's dictum does not call into question the trial court's determination that Jourdan was in danger of further incrimination on cross-examination.

In fact, the Court stated that the defendant "may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details [upon cross-examination].” Id. at 321, 119 S.Ct. 1307. Mitchell not only dealt with different issues but also supports the trial court’s inquiry into whether Jourdan could further incriminate himself. Mitchell, therefore, does not support Davis' argument that Hoffman clearly established that Davis was entitled to have Jourdan take the witness stand.