P. v. Hill
Filed 11/5/13 P. v. Hill CA4/3
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF
THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE
PEOPLE,
Plaintiff and Respondent,
v.
CURTIS
JAMES HILL,
Defendant and Appellant.
G046249
(Super. Ct. No. 09CF1955)
O P I N I O N
Appeal
from a judgment of the Superior Court of
County, Thomas M. Goethals, Judge. Affirmed.
Marleigh
A. Kopas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and
A. Natasha Cortina, Deputy Attorneys General, for
Plaintiff and Respondent.
Appellant Curtis James Hill
stands convicted of special circumstances murder for causing the death of Cecil
Warren in the course of a robbery. Although
Warren did not die until nearly four years after the
robbery, the jury determined he did so as a result of the injuries appellant inflicted
on him during that crime. Appellant contends
his trial was unfair because the prosecution introduced statements that were
taken in violation of his Miranda
rights,
title="">[1] his attorney negligently allowed the jury to hear about
other crimes he may have committed, and the state’s expert medical witnesses
referenced the findings of a nontestifying physician in rendering their
opinions as to the cause of Warren’s
death. Appellant also contends
cumulative error compels reversal and California’s special circumstances law is unconstitutional. Finding appellant’s contentions
unmeritorious, we affirm the judgment.
FACTS
On November 11,
2003, Henry Stoltenberg woke up at
around 4:00 a.m. and went for his usual morning walk in Huntington Beach. On past walks at that time of day, he had
seen Cecil Warren doing grounds work at the Union Bank on Beach Boulevard. However, when Stoltenberg reached the bank
that morning, Warren was lying in the fetal
position in the parking lot, a few feet from his van. Warren’s face was bloody and swollen,
and when Stoltenberg asked him what happened, he said, “I’ve been mugged.†Warren seemed to be going in and
out of consciousness, so Stoltenberg called 911.
Warren was still coherent when the
police and paramedics arrived at the scene.
He said he had been “jumped†and “beaten up†and also revealed he had a
history of heart problems. Although he
did not appear to be in cardiac arrest, the paramedics considered Warren’s situation to be serious and
transported him to the hospital. After
arriving there, Warren took a turn for the worse; he
was less coherent and appeared to be having difficulty staying focused and
oriented. Eventually, he slipped into a
coma and had to be placed on life support.
In
investigating the incident, Huntington Beach Police Officer Mark Wersching
reviewed surveillance tape from businesses in the area and discovered appellant
and John McKinney patronized a Mobile gas station near the bank at about 4:15 on
the morning in question. Wersching also learned
appellant and McKinney lived in close proximity to
the bank.
On
November 21, 2003, 10 days after the incident occurred, Wersching and a team of
officers executed a search warrant at appellant’s apartment. During the search, appellant agreed to speak
with Wersching and was interviewed in a bedroom in the presence of a second
police officer. The officers did not
read appellant his Miranda rights
before commencing the interview, which was tape recorded. But they did tell appellant he was not under
arrest.
Explaining
what he did the night before Warren was assaulted, appellant said he and McKinney went out drinking. They were dropped off in the early morning
hours by the Union Bank and spotted a van in the parking lot of the bank. Because the van was open and they did not see
anyone around the vehicle, they decided to go “fuck around†with it. As they were poking around inside the van, an
“old man,†Warren, appeared and asked them what they were doing. Appellant punched Warren in the face, and when he
fell to the ground, he searched his pockets and took his wallet. Then he kicked Warren in the head and fled the
scene with McKinney.
As
part of his investigation, Wersching also interviewed appellant’s boss, Asaf
Ahmad. Ahmad said that when he picked up
appellant for work on the morning Warren was assaulted, appellant
talked about “jacking someone.â€
The investigation also
revealed that appellant’s DNA profile matched the DNA profile of a hair that
was found on the right rear pocket of Warren’s jeans. The odds of such a match occurring randomly were
estimated to be about one in a trillion.
Appellant
and McKinney were originally charged with assault and
robbery. Although appellant pled guilty
to the charges and was sentenced to prison, that was not the end of his legal
woes. On September 22, 2007, nearly four
years after the original crimes, Warren passed away at the age of
81. Warren’s death prompted the prosecution
to file new charges against appellant and McKinney. The prosecution charged them with first
degree felony murder for causing Warren’s death in the course of a
robbery and a burglary. (Pen. Code, §§ 187,
subd. (a), 189.) The prosecution also
alleged as special circumstances that they murdered Warren while they were engaged in the
commission of a robbery and a burglary.
(Pen. Code, § 190.2, subd. (a)(17)(A) & (G).)
Appellant
and McKinney were tried separately.
not to present any evidence regarding his prior guilty plea. Thus, it was required to prove appellant’s
guilt independent of earlier proceedings.
Before trial, appellant
moved to suppress his confession on the grounds it was involuntarily rendered
and not preceded by Miranda warnings. The trial court denied the motion, but at
appellant’s request, it did order the prosecution to redact his confession so
as to eliminate any references to his prior criminal activity.
At trial, the state called
two expert medical witnesses to testify about the cause of Warren’s death. The
first was Dr. Aruna Singhania, the forensic pathologist who conducted Warren’s
autopsy, and the second was Dr. Singhania’s supervisor, Anthony Juguilon, M.D.,
who is the Chief Forensic Pathologist for Orange County. During their
testimony, these experts explained that, in forming their opinions about the
case, they relied on multiple sources of information, including a report
prepared by neuropathologist John Andrews, M.D.
Dr. Andrews did not testify at trial, nor was his report admitted into
evidence.
Based on all the
information they acquired, Dr. Singhania and Dr. Juguilon determined Warren died of bronchopneumonia.
They surmised Warren’s feeding tube, which was
part of his life support system, caused an infection which led to pneumonia in
his lungs, and eventually that caused his major organs to shut down. As for why Warren had to be placed on life
support in the first place, Drs. Singhania and Juguilon believed he suffered
blunt force trauma to the head. Due to
that trauma, Warren could not breathe on his
own and required a feeding tube and ventilator to stay alive, which led to him
contracting the fatal bronchopneumonia.
Trial was by jury. Defense counsel did not call any witnesses
on appellant’s behalf, but in closing argument, he argued appellant was not
guilty of special circumstances murder because in attacking Warren, he did not commit the
underlying crimes of robbery or burglary.
Defense counsel also argued the prosecution failed to prove appellant’s
actions were the cause of Warren’s death.
The
jury disagreed. Although it found the
burglary-murder special circumstance allegation not true, it convicted
appellant of first degree murder and found the robbery-murder special
circumstance allegation true. Thereupon,
the trial court sentenced appellant to life in prison without parole.
I
As
he did at trial, appellant contends the court should have suppressed his
confession because it was involuntarily rendered and obtained in violation of
The
admissibility of appellant’s confession was litigated both at the preliminary
hearing and at an Evidence Code section 402 hearing before trial. The central issue was whether appellant was
in custody at the time he was interviewed, thereby requiring the detectives to
read him his Miranda rights. (See Oregon
v. Mathiason (1977) 429 U.S. 492, 495 [“Miranda warnings are
required only where there has been such a restriction on a person’s freedom as
to render him ‘in custody.’â€].)
At the preliminary
hearing, Wersching testified regarding the circumstances under which the interview
took place. He said that a week and half
after Warren was assaulted, he and
about 10 other police officers went to appellant’s apartment to serve a search
warrant and look for evidence of the crime.
The officers were in uniform and wearing “raid vests†when they arrived
at the apartment.
Wersching
knocked and gave notice at the door, and when the officers gained entrance,
they had their guns drawn. Inside, they
discovered appellant and his wife and their baby, along with two other adults
and two children. Appellant was
contacted in an upstairs bedroom. At
gunpoint, he was ordered to walk downstairs into the living room. He was then searched and ordered to sit on
the couch with the other occupants of the apartment, who had been rounded up in
a similar fashion. Asked at the
preliminary hearing if appellant was handcuffed during that time, Wersching
testified, “I don’t believe any of the occupants were handcuffed at that point.â€
Wersching
explained that once all of the occupants were searched and seated, the officers
put away their weapons because the apartment had been secured. This was about five minutes post-entry, according
to Wersching. After that, some of the
officers remained in the living room along with the occupants and some of the
officers began searching the apartment. Wersching
and his partner Mike Nakama turned their attention to appellant.
Wersching
asked appellant if he would speak with him upstairs, and appellant agreed to do
so. Wersching and Nakama then escorted appellant
upstairs into one of the bedrooms. The officers
did not have their weapons drawn, nor did they make any threats or promises to appellant. Appellant sat on the bed, next to Wersching,
and Nakama sat in front of appellant on a chair. The door to the bedroom remained open at all
times. Asked if Nakama was “stationed in
a way that he was between [appellant] and the door,†Wersching said Nakama was
“closer to the closet.â€
Still,
Wersching was not worried about appellant going anywhere, as made clear by the
following exchange:
“Q. [Defense counsel]: Was there concern [appellant] might get up
and walk out?
A. [Wersching]:
No, I wasn’t concerned [about] that.
Q. Well, this was – the search was ongoing, [appellant]
was detained at this point, was he not?
A. He
was.
Q. Did
you tell him that?
A. Yes.
Q. Okay. What did you tell him about that?
A.
I told him that he was not under arrest and that we were not going to be
taking
him to jail tonight.
Q.
But you also said he wasn’t free to leave; is that correct?
A.
No, I didn’t tell him that.
Q. In your mind he
[wasn’t] but you didn’t tell him that, you’re saying?
A. Yes.â€
Testifying further, Wersching said appellant was not
advised of his Miranda rights before
the interview began. He estimated the
search of appellant’s apartment lasted about an hour and a half, and appellant’s
interview lasted “approximately an hour, maybe a little longer.†Wersching also said the entire interview was
tape recorded, and at no time was appellant ever questioned off the
record.
The contents of the tape were transcribed and made
available to the court. The transcript shows
the officers started out the interview by obtaining general background
information from appellant. Wersching then
told appellant he and Nakama wanted to ask him some questions about a robbery
and assault that had occurred in the area.
He also told appellant a judge had determined there was probable cause
to search his apartment. However, Wersching
assured appellant “you’re not under arrest†and “I’m not arresting you
tonight. You’re gonna sleep here with
your wife and baby tonight.†After
appellant made a reference to one of his roommates, Wersching reiterated to
him, “I’m not taking you to jail. You’re
not under arrest, okay? Do you
understand that?†Appellant replied, “Yes.â€
At that point, the officers questioned appellant about
where he was and who he was with on the night before Warren was assaulted.
The nature of the questioning was conversational, and appellant answered
most of the questions with little prodding.
He was unable to provide some details, which he attributed to the fact
he had been drinking that night, but he was able to provide a fairly detailed
account as to how he, McKinney and his friend Anna spent the night gallivanting
about. In fact, a considerable amount of
the interview is devoted to this subject.
In describing events, appellant initially claimed Anna
dropped him off along with McKinney
around 6:00 a.m. Then they “kicked itâ€
in McKinney’s garage for a while before appellant eventually went
home. Appellant did not say anything
about Warren or incriminate himself in any fashion up to that point
in the interview.
Skeptical of appellant’s story, Wersching asked him if
he was sure about the time he and McKinney got dropped off, and appellant said he really couldn’t
remember. Then Wersching informed
appellant that surveillance camera footage showed him and McKinney entering the Mobile station around 4:00 a.m. on the morning in question. Appellant told Wersching he couldn’t remember
going to the Mobile station, “But now that you said you seen me on [the
surveillance tape], then I guess I did.â€
Appellant added, “[M]y mind was gone†from the drinking. “I’m not sure what exact time[] it was.â€
At that point, Nakama turned up the heat on appellant,
and the following exchange took place:
“Q.
[Nakama]: We’ve talked to a lot
of people, we have a lot of facts, okay?
We know that you were in the gas station, the Mobile gas station . .
.
A. [Appellant]: Mm
hm.
Q. . . . with [McKinney], okay? You
know that we’ve talked to a lot of people.
You know that we hit [McKinney’s] pad with a search warrant.
A. Mm hm.
Q. We talked to his whole family, okay. We know that you guys left the Mobile
gas station around 4:20.
A. Mm hm.
Q. Okay.
The clerk up there saw you guys walking outside. You were walking southbound on Beach Boulevard.
A. Mm hm.
Q. Okay?
All we’re trying to find out is what happened when you guys walked down
that way, okay?
A. Mm hm.
Q. We have an idea what happened but you and [McKinney] were walking that way in that area.
A. Mm hm.
Q. You’re not responsible for everything that
every one does. You’re responsible for
yourself.
A. Mm.
Q. Okay?
But you need to tell us about what you saw that night because it’s very
important. Do you understand what I’m
saying?
A. Mm hm.
Q. We’ve been doing this a long time. We know what’s going on. You know what’s going on. We don’t need to play any cat and mouse games
here.
A. Mm hm.
Q. We want the truth. That’s all.
Okay. We haven’t been
unreasonable with you.
A. Mm hm.
Q. We told you you’re not under arrest,
okay. But we need to have the truth
because here’s the problem we have. You
know Detective Wersching here, he’s trying to get facts, he’s trying to get
statements from you, okay.
A. Mm hm.
Q. If, if you start telling us things that we
know are lies, it bothers us.
A. Mm hm.
Q. Okay?
We feel like you’re trying to hide something. But you may be scared only because you don’t
want to say what you seen happen.
Okay? I’m not trying to put the
blame on you[] or anything.
A. Mm hm.
Q. You’re not responsible for what every one
does, right?
A. Right.
Q. Maybe someone did something you didn’t
like. I wouldn’t like that if somebody
did something. Okay? But if you lie about it and you don’t tell us
about it, what are we supposed to think?
You know what I mean?
A. Mm hm.
Q. It’s obvious everyone around this whole
neighborhood knows what’s going on. . .
. Just tell us what happened when you
guys were walking away from the Mobile station. Did somebody
act like a fool and do something?
A. Yeah.
Q. They sure did, right?
A. Yeah.
Q. You know that. Just tell us about it. That’s all.
You’re memory’s real good. I
commend you for your memory. You gave us
a lot of details . . . about what happened.
You can remember blow by blow where you were, where you drove, who you
were with. You told us all that. But when we talk about the critical time, its
gets fuzzy. That’s pretty obvious,
right?
A. Yeah.
Q. We’re not stupid.
A. I’ll tell it straight up right now.â€
Appellant proceeded to explain
how the confrontation with Warren
transpired. He said that when he first
entered Warren’s van, he grabbed hold of an edging tool. Asked by Wersching what he intended to do
with the tool, appellant said, “Nothing, I was just being stupid.†He also said McKinney was looking around inside the van. When Warren appeared and asked them what they were doing, he got
nervous and slugged him in the face, causing him to fall. As to why he hit Warren, appellant explained,
“I got like nervous. And when I get
nervous and I’m drunk, I start getting like paranoid†to the point “where I don’t
think about shit, I just do it.†“And
that’s the only thing that came to my mind was hitting him.â€
Continuing
his story, appellant said that after he hit Warren, he reached down and took his wallet. Then he kicked Warren
in the head and he and McKinney took off running.
They went to McKinney’s place, divvied up the money and burned the
wallet. Then appellant went home and slept
for a couple of hours. He said that when
he went in to work later that morning, he told a couple of people he had “robbed
somebody last night.â€
As the interview was
winding down, the officers obtained a DNA sample from appellant and engaged him
in small talk about his work and family.
At appellant’s request, they also allowed his wife to come upstairs so he
could talk to her about the situation.
Appellant was concerned that one his roommates was going to “beat him upâ€
after the police left, so the officers allowed him to leave the apartment with
his wife and baby. However, once they
were outside, they arrested appellant on a misdemeanor warrant.
During the preliminary
hearing, defense counsel objected to
the admission of appellant’s statements on the grounds the detectives did not
read him his Miranda rights prior to
questioning. The magistrate said it was
a “close call†but ultimately determined appellant’s statements were admissible
because he was not in custody at the time he was interviewed.
Before trial, appellant renewed his
should be suppressed because they were involuntarily rendered in violation of
his due process rights. At a hearing on
the issue, the parties agreed to let the trial court consider the preliminary
hearing transcript as part of the factual basis for the motion. They also submitted appellant’s interview for
the court’s consideration.
Regarding the preliminary hearing transcript, the
court was troubled by what it described as an “ambiguity in the record.†Particularly, the court was having difficulty
figuring out what it considered to be a key factor in the case, i.e., whether
Wersching ever told appellant he was detained.
At the court’s invitation, the prosecution called Wersching to the stand
in the hopes of clarifying that issue.
Wersching
testified that upon entering appellant’s apartment, he first made contact with
appellant as he was being escorted down the stairs by other officers. Wersching testified he could not remember if
appellant was handcuffed when he was taken into the living room, searched and
told to sit down with the others. After
appellant agreed to speak with him, they walked upstairs and entered one of the
bedrooms, along with Officer Nakama.
Wersching testified appellant walked back up the stairs and entered the
bedroom on his own free will. Describing
appellant’s demeanor as cooperative, Wersching said he was not handcuffed or
restrained in any fashion at that time.
Turning
to the detention issue, Wersching testified he had reviewed the portion of his
preliminary hearing testimony where he said he had told appellant he was
detained. Asked if he presently had any independent
recollection of telling that to appellant or saying anything to him about
whether he was free to leave, Wersching testified “no.†He said the only thing he could recall telling
appellant in that regard is what is on the tape recording. That is, telling appellant that he was not
under arrest and that he would be able to sleep in his own bed that night. Wersching said there was no other
conversation about appellant’s freedom of movement other than what’s on the
tape, and he never told appellant he could not leave. Wersching said the only time appellant’s
movement was restricted and he was told what to do was when the officers
initially entered the apartment and secured the premises.
On
cross-examination, defense counsel came back to Wersching’s preliminary hearing
testimony. He asked Wersching if he was
being truthful when he previously testified he had told appellant he was
detained. Wersching said he was being
truthful at that time, but he could not presently remember telling that to appellant.
In
argument to the court, defense counsel argued the circumstances surrounding
appellant’s interrogation could not have been “more overbearing†and clearly supported
the conclusion appellant was in custody at the time he was interviewed. He said that, based on Wersching’s
preliminary hearing testimony, Wersching must have told appellant he was
detained before he turned on the tape recorder because “it’s not on the
transcript.†He argued that, all things
considered, there was a “de facto arrest†or the “functional equivalent of an
arrest for Miranda purposes.â€
The
trial court disagreed. With respect to
Wersching’s preliminary hearing testimony about telling appellant he was
detained, the judge stated, “The way I interpret that . . . in the context of
what I’ve now read and heard is that when the officers came in initially before
the [apartment] had been secured and before [appellant] was taken upstairs for
a conversation, . . . before the tape [recorder] was on, everyone inside the
[apartment] was told that they were being detained.â€
The
trial court presumed this created an intrusive and intimidating situation for
the occupants. But, even assuming the
police handcuffed appellant when they initially contacted him and ordered him
to come downstairs, the court found appellant was no longer in handcuffs when
Wersching asked him if he would be willing to talk. And since the request was posed as a
question, as opposed to a command, appellant would have reasonably understood
that he had an option in terms of speaking with Wersching.
Continuing its analysis, the judge stated, “Walking
up those stairs, it is still an intrusive situation. I don’t want to say coercive; I’m not going
to go that far. But it’s an intrusive,
intimidating situation. Had [Wersching]
not continued to defuse the situation by specifically telling [appellant] . . .
he was not under arrest and he would not be arrested no matter what he said
during that conversation, my ruling might be otherwise. [¶] But
considering all of the [circumstances] . . . I find that this was a
non-custodial interview. Therefore,
The trial judge also rejected appellant’s
claim his statements were involuntarily rendered. In so doing, the judge said he was “struck by
the noncoervice [and] non-intimidating nature of the conversation.†“The officers [gave appellant] plenty of
opportunity to say whatever he want[ed] to say.
It [was] not intimidating. I don’t
find it coercive. I don’t find any evidence
that the officers in some way over[bore] [appellant’s] free will and created an
involuntary situation.†The judge
therefore denied appellant’s motion to suppress the statements he made during
the interview.
Our
analysis begins with United States Supreme Court’s landmark ruling in
In that case, the United States Supreme Court established “concrete
constitutional guidelines†for police officers to follow when they are
questioning a suspect who “has been taken into custody or otherwise deprived of
his freedom of action in any significant way.â€
(Id. at pp. 442, 444, fn.
omitted.) The court ruled that, under
those circumstances, the
suspect must be advised he “has the right to remain
silent, that anything he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and that if he cannot afford
an attorney one will be appointed for him prior to any questioning if he so
desires.†(Id. at p. 479.)
These
so-called “Miranda warnings†have “become
embedded in routine police practice to the point where [they] have become part
of our national culture. [Citation.]†(Dickerson
v. United States (2000) 530 U.S. 428, 435, 443, italics omitted.) Although sometimes described as “‘prophylactic’â€
in nature (id. at pp. 437-438,
quoting New York
v. Quarles (1984) 467
U.S. 649, 653), they are constitutionally required to safeguard a suspect’s Fifth
Amendment right against self-incrimination.
(Id.,
at p. 444 [the Miranda decision
created a federal “constitutional rule†that may not be superseded by Congress].)
Still,
the police are not required to administer Miranda
warnings to every person they interview.
Indeed, the United States Supreme Court has repeatedly held that, unless
a suspect is “in custody†at the time he is questioned, the
play. (Yarborough v. Alvarado (2004) 541 U.S. 652, 660-663 [reviewing the “clearly
established law†in this area].) So,
what are the key elements that courts look to in determining whether a suspect
has been placed in “custody†for Miranda
purposes?
“‘Two
discrete inquiries are essential to the determination: first, what were the circumstances
surrounding the interrogation; and second, given those circumstances,
to terminate the interrogation and leave. Once the scene is set and the players’ lines
and actions are reconstructed, the court must apply an objective test to
resolve the ultimate inquiry: was there a formal arrest or restraint on freedom
of movement of the degree associated with a formal arrest.’ [Citation.]â€
(Yarborough v. Alvarado, supra, 541
U.S. at p. 663.) In examining these
issues, we must defer to the trial court’s factual findings that are supported
by substantial evidence, but we independently examine the legal question of
whether the defendant was in custody when he was questioned by the police. (Thompson
v. Keohane (1995) 516 U.S. 99, 112-113; People
v. Cunningham (2001) 25 Cal.4th 926, 992.)
It
is undisputed that when the police entered appellant’s apartment to execute the
search warrant, they did so with a considerable amount of force and
authority. At least 10 uniformed officers
wearing raid vests were involved in the search, and when they went inside, they
had their weapons drawn and ordered the occupants into the living room area,
where they were searched and seated. It
also appears the occupants, including appellant, may have been handcuffed
momentarily during this initial phase of the search, which according to
Wersching, lasted about five minutes.
However,
“[h]andcuffing a suspect does not necessarily dictate a finding of custody. [Citation.]â€
(United States v. Booth (1981)
669 F.2d 1231, 1236; accord People v.
Pilster (2006) 138 Cal.App.4th 1395, 1404-1405 [recognizing this principle
but finding the defendant in that case was in custody since he “remained in
handcuffs when the investigating officer interrogated him.â€].) In executing a search warrant, “[s]trong but
reasonable measures to insure the safety of the officers or the public can be
taken without necessarily compelling a finding that the suspect was in custody. [Citation.]
The officers may take reasonable steps to maintain the status quo. [Citation.]â€
(Ibid.)
The situation during the
officers’ initial entry into appellant’s apartment was no doubt forceful and
intimidating, and no reasonable person would have felt free to leave during
this phase of the search. But the
measures utilized by the officers were reasonable considering the fact they
were investigating a violent crime and there were a large number of people
inside the apartment.
After
the premises were secured, the officers put away their weapons and the next
phase of the search took place. While
some of the officers stayed in the living room to keep an eye on the seated
occupants, other officers began searching the apartment for evidence. That’s when Wersching asked appellant if he
would be willing to speak with him. When
appellant said yes, Wersching and Nakama walked with him upstairs into one of
the bedrooms. According to Wersching, he
and Nakama “escorted†appellant up the stairs, but they did not force or restrain
him in any fashion; rather, appellant made his way into the bedroom of his own
free will. The fact Wersching
and appellant voluntarily acquiesced
to this request, supports the conclusion he was not in custody at this
time. (Oregon v. Mathiason, supra, 429 U.S. 492; People v. Linton (2013) 56 Cal.4th 1146, 1167.)
It
is also significant that Wersching repeatedly told appellant he was not under
arrest and he would be spending the night at home with his family. This signaled to appellant he was not under
compulsion to speak with the officers. (
133 F.3d 943, 951; People v. Linton,
supra, 56 Cal.4th at p. 1167.) The
officers did not go the additional step of telling appellant he was free not to
speak with them, but they did not tell appellant he could not leave
either. And the fact they had
implied his freedom to refuse. Assuming
Wersching did tell appellant he was “detained,†as he testified at the
preliminary hearing, the record supports the trial court’s finding this
statement was made during the initial security sweep of the apartment, when the
officers gathered up all of the occupants and took them into the living room
area to be searched and seated. Had
appellant been interrogated then and there, there would be little question that
Miranda’s custody requirement would
have been met.
But
he wasn’t. Instead, the officers
obtained his permission to speak with him and then escorted him to a room in a
separate part of the house. As appellant
points out, this had the effect of isolating him from his family. However, it also distanced him from his angry
roommate, which likely eased appellant’s mind to some extent. Before interrogating appellant, the officers
also repeatedly told appellant he was not under arrest, which appellant
expressly acknowledged, and explained why they wanted to talk to him. They were in close proximity to appellant, and
the interview itself turned out to be rather lengthy, yet the door remained open
and it appears appellant’s path to it remained largely unobstructed.
These
circumstances support the conclusion appellant was not in custody at the time
he was interviewed. Indeed, California decisional law is clear that
time the police initially use weapons or other force to detain a suspect: “‘For Miranda
purposes, . . . the crucial consideration is the degree of coercive restraint
to which a reasonable citizen believes he is subject at the time of questioning.
Police officers may sufficiently attenuate an initial display of force,
used to effect [a detention], so that no Miranda
warnings are required when questions are asked.’†(People
v. Thomas (2011) 51 Cal.4th 449, 478, quoting People v. Taylor (1986) 178 Cal.App.3d 217, 230.)
As
to the attenuation issue, it is noteworthy that appellant was only detained for
a brief period of time at the outset of the search. Wersching estimated it only took about five
minutes for the officers to obtain control over the premises, at which time
they freed appellant of any physical restraint and asked him if he would be
willing to speak with them. The officers’
initial show of force was forceful and direct, to be sure, but the tenor of the
encounter changed significantly after they secured the apartment. And by the time the officers actually got
around to questioning appellant, he was neither formally arrested nor
restrained to a degree associated with a formal arrest. (See In
re Joseph R. (1998) 65 Cal.App.4th 954, 958 [although the defendant was
initially handcuffed in the back of a police car, he was not in custody for
questioned because his initial detention lasted only about five minutes, which
the court characterized as being “extremely shortâ€].)
In
arguing otherwise, appellant relies on two cases from the Ninth Circuit Court
of Appeals, United States v. Craighead
(9th Cir. 2008) 539 F.3d 1073 (Craighead)
and United States
v. Kim (9th Cir. 2002)
292 F.3d 969 (Kim). But these decisions are factually
distinguishable from the present case.
In Craighead, the defendant was directed into and questioned inside a
storage room in the back of his house while officers from three different law
enforcement agencies searched his residence for evidence of child
pornography. (Craighead, supra, 539 F.3d at pp. 1077-1079.) Although the defendant was informed by an FBI
agent that he was free to leave, any statements he made would be voluntary, and
he would not be arrested at the conclusion of the interview, the Ninth Circuit
found this meant very little in terms of the custody issue because the
circumstances were unclear as to whether the FBI agent was speaking for all of
the agencies that were present during the search. (Id.
at p. 1085.) Moreover, there was
evidence that when the defendant was interviewed, “the door was closed behind
him†and a detective was “leaning with his back to the door in such a way as to
block [defendant’s] exit from the room.â€
(Id. at p. 1086.) These factors were pivotal to the Ninth
Circuit’s determination the defendant was in custody for Miranda purposes during the interview. (Id.
at p. 1088.)
Here,
in contrast, only one law enforcement agency was involved in the search. At the outset of the interview, Wersching and
Nakama made it clear they were both from the Huntington Beach Police Department,
and appellant never expressed any confusion as to who was in charge or what was
going on. In addition, after appellant
agreed to be interviewed, the officers left the bedroom door open while they
questioned him. These circumstances,
which were absent in Craighead,
militate against a finding of custody.
The
fact the officers asked appellant if he would be willing to speak with them and
were respectful to him during the interview also sets this case apart from
In that case, the officers told the defendant to “shut up†and ordered
her to speak English, even though her native language was Korean and they knew
she did not speak English very well. (
tell the defendant she was not under arrest before they questioned here. In fact, there was no evidence that the
defendant in Kim ever acquiesced to
being interviewed. (Ibid.)
In our case, there was no
language issue, appellant was asked and agreed to be interviewed, and he was
informed and acknowledged he was not under arrest. He was also told that no matter what he said,
he would be spending the night with his family at the apartment. Although not dispositive, it appears appellant
actually believed this because at the end of the interview he expressed concern
about what his roommate was going to do to him after the police left the apartment.
Appellant apparently did not think he
was going to be arrested, even after
he confessed to assaulting Warren.
Regardless
of appellant’s subjective beliefs, the objective circumstances surrounding the
interview were not so coercive as to lead a reasonable person to believe
appellant was restrained to a degree associated with a formal arrest. Therefore, he was not in custody during the
interview, and the police were not required to read him his
Appellant also contends his confession should have
been excluded because it was obtained in violation of his right to due process. “The due process
test takes into consideration ‘the totality of all the surrounding
circumstances — both the characteristics of the accused and the details of the
interrogation.’ [Citations.]†(Dickerson
v. United States, supra, 530 U.S. at p. 434.) If the record shows the defendant’s will was
overborne by the circumstances surrounding the interrogation such that his
confession was coerced or compelled, it cannot be used against him. (Ibid.)
Like
the trial court, in reading the transcript of appellant’s interview we are
struck by the fact that in interrogating appellant, Wersching and Nakama took a
polite and professional tone from the very beginning. They allowed appellant to tell his story in his
own words and permitted the interview to unfold in a slow-paced, conversational
manner. Although appellant had
difficulty remembering everything that happened on the night in question, he
did not show hesitancy in answering the officers’ questions. Thus, there was no need for the officers to
exert pressure on him. It wasn’t until
after the midpoint of the interview that they confronted appellant with the
surveillance tape and urged him to come clean.
They strongly implored appellant to tell the truth and claimed they
already had a pretty good idea what happened, but they did not induce his
confession by threat or promise, nor did they accuse him of anything. In fact, when appellant asked what was going
to happen to him in terms of his case, they said they didn’t know because it
was out of their hands.
The
totality of the circumstances convince us appellant was not speaking against
his will but rather voluntarily confessed to his involvement in the crimes with
which he was charged. Accordingly, the
trial court properly allowed his confession to be introduced into evidence at
his trial.
II
Appellant
also contends his attorney was ineffective for failing to ensure the jury did not hear anything about
other crimes he may have committed. We
do not believe appellant’s attorney was ineffective in this regard.
In
order to succeed on a claim of ineffective assistance of counsel, a defendant
must show counsel’s performance was objectively unreasonable under prevailing
professional norms. (
436.) The defendant must also
v. Washington (1984) 466 U.S. 668, 687.)
To do this, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.†(
sufficient to undermine confidence in the outcome.†(Ibid.) Under this standard, the defendant “must
carry his burden of proving prejudice as a ‘demonstrable reality,’ not simply
speculation as to the effect of the errors or omissions of counsel.†(People
v. Williams (1988) 44 Cal.3d 883, 937.)
Appellant
claims his attorney was remiss for failing to prevent the jury from hearing about
other crimes he may have committed. The
issue about other crimes surfaced in light of the fact that, during his interview
with Wersching and Nakama, appellant admitted he had previously been involved
in gang activity and committed other robberies.
However, at defense counsel’s request, the trial court ordered the
prosecutor to redact this information from the tape and the transcript of the
interview. Specifically, the court told
the prosecutor, “I don’t want
to hear anything about the prior alleged robberies or any gang activity in the
People’s case-in-chief.†The court also ordered
the prosecutor to meet and confer with defense counsel to ensure he was content
with the redactions.
After the redactions were
made, defense counsel agreed they were satisfactory. However, toward the end of the trial, after
the interview tape had already been played for the jury, defense counsel told
the court there was a reference to appellant’s prior criminal activity that
should have been redacted from the tape.
That reference also appeared in the transcript of the interview, which
the jurors were given when the tape was played for them.
The
reference came up toward the end of the interview, after appellant had already
confessed to assaulting Warren. Nakama asked appellant, “And have you, have
you . . . It sounds like you . . . mainly
jack people on the street. Is that
correct?†Appellant answered, “Yeah.â€
In
bringing this issue to the court’s attention, defense counsel stated, “I missed
[the reference] in my review, just to concede that. I don’t think it was done maliciously but it
was in there[.]†The court said it was a
“close call†as to whether the reference violated its pretrial ruling to omit
reference to appellant’s prior criminal activity. However, “in abundance of caution†the court
ordered the prosecutor to redact the reference on the tape and the transcript. The newly-redacted versions of the tape and
transcripts were made available to the jury during its deliberations, but there
is nothing in the record to suggest the jury actually asked to review them in
deciding the case.
Appellant
argues his attorney should have pressed the issue further and moved for a mistrial
because the reference rendered his trial unfair. Characterizing the reference as “improper
propensity evidence,†he asserts the “jury more than likely was biased against
him upon learning that he engaged in other robberies . . . .†However, the jury didn’t hear any evidence about
any other robberies. In fact, the wording
of the challenged statement makes it hard to figure out exactly what appellant
admitted to.
In
assessing prejudice, it is also significant that the single, fleeting reference
to “jack[ing]†was made during the course of a lengthy taped interview that focused
not on appellant’s past behavior, but
his actions in the present case. At no point did the prosecution ever attempt
to use the reference to denigrate appellant’s character or prove he was prone
to criminal behavior. As a matter of
fact, after the tape was played, the reference was never alluded to by either
party while the jury was present. Under
these circumstances, it is not reasonably likely the reference affected the verdict. Because the reference does not undermine our
confidence in the verdict, reversal is not required.
III
Next,
appellant asserts the trial court erred in allowing expert medical witnesses Singhania
and Juguilon to rely on Dr. Andrew’s pathology report in forming their opinions
about the cause of Warren’s death. Given that Dr.
Andrews did not testify at trial, appellant contends the experts’ reliance on
his report allowed the jury to hear prejudicial hearsay evidence and violated
his right to confront witnesses. We do
not believe that was the case.
As
we stated in the facts
above, Dr. Singhania and Dr. Juguilon relied on several sources of information
in forming their opinions in this case.
In order to properly analyze appellant’s claims, we must thoroughly
examine not only what they relied on, but how they conveyed their opinions and
how the jury was told to assess their testimony.
As
the physician who conducted Warren’s autopsy, Dr. Singhania testified to
the physical condition of Warren’s body. She stated Warren had signs of heart
disease, diabetes and chronic obstructive pulmonary diseases (COPD). In addition, he had a scab on the right side
of his forehead and a scar on his left cheek below his eye. The scar was consistent with craniofacial
injury or trauma of some sort. However,
Dr. Singhania did not detect any signs of injury to Warren’s skull.
With respect to Warren’s brain, Dr. Singhania
said she removed the organ from his skull and examined it externally only. Not seeing any abnormalities, she sent Warren’s brain to Dr. Andrews,
who, as a neuropathologist, specializes in the central nervous system. Whereas Dr. Singhania only conducted a gross
external examination of Warren’s brain, Dr. Andrew’s
examination involved both an exterior and microscopic examination of that
organ.
Dr.
Singhania testified it is customary for her to rely on information from other
people in forming her opinions about forensic matters. She said that in this case, she reviewed a
“brief investigation report†as well as some of Warren’s medical records prior
to conducting his autopsy. She also
testified she had “been briefed†about the circumstances of Warren’s death, including the fact
he had suffered blunt force trauma to the head.
Dr. Singhania opined that trauma is what landed Warren on life support and led
to his eventual death.
Dr.
Singhania stated that in addition to the investigation report and medical
records she received, she also relied on Dr. Andrew’s report in determining the
cause of Warren’s death. Particularly, she relied on Dr. Andrew’s
finding that Warren had “chronic sequelae,â€
i.e., scarring, on his brain, which is indicative of blunt force trauma to the
head. Speaking to the effect of that
trauma, Dr. Singhania testified “that’s why [Warren was] not able to
breathe by himself [and] . . . was on a life support. And that’s how I put the cause of
death.â€
During
her testimony, Dr. Singhania admitted that when she receives information from
other sources during the autopsy process, her lack of first-hand knowledge
about the information precludes her from knowing if it is actually accurate and
correct. However, she can effectively
verify the information she receives by comparing it to her own observations and
findings. When asked if her findings
were consistent with the finding that Warren had “post chronic
sequelae of blunt force trauma to the brain,†Dr. Singhania answered, “That’s
correct.â€
Like Dr. Singhania, Dr.
Juguilon testified he relied on a variety of information in forming his
opinions about the cause of Warren’s
death. While he did not receive any information
from the police, he did review Warren’s medical records, Dr. Singhania’s autopsy report and
the autopsy photos. He also considered
Dr. Andrew’s pathology report.
Dr. Juguilon testified
that, as a neuropathologist, Dr. Andrews would have training “above and beyondâ€
the typical forensic pathologist. He
also said it was common to “send out certain items such as the brain to a
neuropathologist for a consult and report on that particular organ.†Dr. Andrews’ report indicated Warren suffered from DAI, diffuse axonal injury. Dr. Juguilon explained DAI is a widespread
brain injury that often follows severe head injuries. In diagramming what the injury looks like for
the jury, he said it occurs when axons separate from the body of a nerve
cell. When there is evidence of this
separation over a large portion of the brain, it signifies diffuse axonal
damage or DAI. The injury causes irreversible
damage to the nerve cells and cessation of normal nervous system function,
often resulting in unconsciousness or lengthy coma. It also necessitates the need for life
support in many cases.
Dr. Juguilon testified DAI
can only be caused by “severe blunt head trauma,†such as a hit or kick to the
head. In his opinion, Warren suffered blunt force trauma to the head, which
triggered a coma and the need for life support.
Warren’s feeding tube then caused an infection, which led to
the pneumonia, which was the ultimate cause of his death. However, Dr. Juguilon believed blunt head
trauma was the direct cause of Warren’s death because it set in motion the chain of events
that led to his demise. While Dr.
Juguilon acknowledged Warren’s other ailments, such as heart disease and diabetes,
may have been contributing factors to his death, he did not believe they were
an intervening or independent cause of death.
On cross-examination,
Dr. Juguilon admitted he was not present when Dr. Singhania performed Warren’s
autopsy or when Dr. Andrews examined Warren’s brain. Nor
did he speak with them about their findings.
He said he arrived at his opinions about the case independently after
examining all the information that was provided to him.
During the course of Dr.
Singhania and Dr. Juguilon’s testimony, defense counsel repeatedly objected to
the fact they relied on hearsay evidence in forming their opinions about the
case. Although the trial court overruled
defense counsel’s objections, it told the jurors, during both Dr. Singhania’s
and Dr. Juguilon’s testimony, that they could not consider this hearsay
evidence for its substantive truth.
Rather, they could only consider it for the limited purpose of
evaluating the basis of the experts’ opinions.
The court also told the jurors they were free to disregard the opinion
of an expert, and if they did not believe the basis for the expert’s opinion
was reliable, they could consider that in evaluating the expert’s
testimony.
In
this regard, the court told the jury, “[I]f an expert witness gives opinions
and to some degree they are based on hearsay information . . ., you can look
behind the opinion to see whether or not you think the hearsay upon which [the
expert] relied was based on fact. And if
you find that the hearsay was not based on fact, then you may find that affects
the weight to which you give the opinion[.]â€
At another point, the court told the jurors that, in evaluating the
believability of an expert opinion, they should consider “the facts or information
on which the expert relied in reaching that opinion. You must decide whether information on which
the expert relied was true and accurate.â€
Appellant contends that, by allowing Drs. Singhania
and Juguilon to testify about the contents of Dr. Andrew’s report, the trial
court violated both state and federal law.
Under the state rules of evidence, “[a]n expert may generally base his
opinion on any ‘matter’ known to him, including hearsay not otherwise
admissible which may ‘reasonably . . . be relied upon’ for that purpose. (Evid. Code, § 801, subd. (b);
[].) On direct examination, the expert
may explain the reasons for his opinions, including the matters he considered
in forming them. However, prejudice may
arise if, ‘“under the guise of reasons,â€â€™ the expert’s detailed explanation
‘“[brings] before the jury incompetent hearsay evidence.â€â€™ [Citation.]†(People
v. Montiel (1993) 5 Cal.4th 877, 918.)
To guard against this
eventuality, the trial court ‘“has considerable discretion to control the form
in which the expert is questioned . . . .’
[Citation] A trial court also has
discretion ‘to weigh the probative value of inadmissible evidence relied upon
by an expert witness . . . against the risk that the jury might improperly
consider it as independent proof of the facts recited therein.’ [Citation.]
This is because a witness’s on-the-record recitation of sources relied
on for an expert opinion does not transform inadmissible matter into ‘independent
proof’ of any fact. [Citations.]†(People
v. Gardeley (1996) 14 Cal.4th 605, 618.)
In this case, it is
clear the trial court was aware of its responsibility to balance the “jury’s
need for information sufficient to evaluate an expert opinion†against
appellant’s “interest in avoiding substantive use of unreliable
hearsay[.]†(People v. Montiel, supra, 5 Cal.4th at p. 919.) It repeatedly admonished the jury that, while
experts may rely on hearsay in forming their opinions, and while the jury could
consider the reliability of that hearsay in evaluating the experts’ opinions,
the jury could not consider the hearsay for the truth of the matter asserted
therein.
At
one point, the court did tell the jurors to consider whether the information on
which the experts relied was “true and accurate.†But that was in the context of explaining to
the jury how they should go about evaluating the experts’ opinions, so it is
unlikely the jurors considered that information as substantive evidence,
especially when they were repeatedly instructed not to do so. Viewing the
instructions as a whole, we are convinced they adequately informed the jury of
the limited purpose for which the information in Dr. Andrew’s report was
offered. We believe the court exercised its
discretion admirably in handling this delicate issue.
Given that Dr. Andrews
did not testify at trial, appellant argues the experts’ reference to his
findings also violated his federal constitutional right to confront
witnesses. (U.S. Const., 6th Amend.)
In so arguing, appellant relies on Crawford
v. Washington (2004) 541 U.S. 36 (Crawford)
and its progeny, which have established the Sixth Amendment’s Confrontation
Clause prohibits testimonial hearsay unless the declarant is unavailable and
the defendant had a prior opportunity for cross-examination. (Id. at pp. 53-54; see
also Davis v. Washington (2006) 547 U.S. 813; M
| Description | Appellant Curtis James Hill stands convicted of special circumstances murder for causing the death of Cecil Warren in the course of a robbery. Although Warren did not die until nearly four years after the robbery, the jury determined he did so as a result of the injuries appellant inflicted on him during that crime. Appellant contends his trial was unfair because the prosecution introduced statements that were taken in violation of his Miranda rights,[1] his attorney negligently allowed the jury to hear about other crimes he may have committed, and the state’s expert medical witnesses referenced the findings of a nontestifying physician in rendering their opinions as to the cause of Warren’s death. Appellant also contends cumulative error compels reversal and California’s special circumstances law is unconstitutional. Finding appellant’s contentions unmeritorious, we affirm the judgment. |
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