P. v. Landry
Filed 9/9/13 P. v. Landry CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
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opinion has not been certified for publication or ordered published for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.
BRIAN PAUL LANDRY,
Defendant and
Appellant.
G046993
(Super. Ct.
No. 09CF1004)
ORDER
MODIFYING OPINION
AND DENYING
PETITION FOR
REHEARING;
NO CHANGE IN
JUDGMENT
It
is ordered that the opinion filed herein on August 28, 2013, be modified
as follows:
On
page 25, second sentence of the last paragraph ending with “according to the
trial court,†add as footnote 6 the following footnote:
6
At oral argument and in a petition for rehearing, defendant contended the trial
court erred by concluding defendant was not in custody until more than halfway
through the interrogation. But while
defendant’s opening brief described the court’s custody ruling and pointed out
that trial counsel asserted custody occurred earlier, defendant did not argue
in his opening brief or reply brief that the court erred in its custody
determination. Indeed, defendant did not
even include in his briefs the appropriate standard for making a custody
determination or an appellate court’s standard of review in assessing a custody
determination. We therefore need not
address the question of whether the court erred in its custody determination. (See People
v. Spector (2011) 194 Cal.App.4th 1335, 1372, fn. 12 [declining to
address issue not adequately raised in opening brief; “cursory treatment
in . . . opening brief does not constitute an adequate
presentation of the issueâ€]; see also People
v. Mayfield (1993) 5 Cal.4th 142, 196 [declining to consider claims
“asserted perfunctorily and without argument in supportâ€].)
The
modification does not change the judgment.
The
petition for rehearing is DENIED.
IKOLA,
J.
WE CONCUR:
ARONSON,
ACTING P. J.
THOMPSON, J.
Filed 8/28/13 P. v. Landry
CA4/3 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
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opinion has not been certified for publication or ordered published for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.
BRIAN PAUL LANDRY,
Defendant and
Appellant.
G046993
(Super. Ct.
No. 09CF1004)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of Orange County,
Patrick Donahue, Judge. Affirmed.
Kevin D. Sheehy, 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, Melissa Mandel and Warren Williams, Deputy
Attorneys General, for Plaintiff and Respondent.
*
* *
A
jury convicted defendant Brian Paul Landry of the first of two counts alleged
against him, conspiracy to commit murder (Pen. Code, § 182, subd. (a)(1)).
second count, murder (§ 187, subd. (a)), because the jury could not reach
a unanimous verdict. A month later, in
exchange for the prosecutor’s agreement to dismiss a section 12022.53 gun
enhancement, defendant pleaded guilty to the murder count. The trial court sentenced defendant to 25
years to life in prison on count two, staying pursuant to section 654 the separate
25 years to life sentence imposed on count one.
This
appeal pertains solely to the admissibility of statements made by defendant to
police. Defendant argues his confession
consisted of involuntary statements induced by improper interrogation tactics. In particular, defendant contends the police
improperly withheld Miranda warnings
(Miranda v. Arizona (1966) 384
U.S. 436) until after they had questioned him in a coercive manner and obtained
incriminating statements. (See
(Seibert).) Finding no error in the court’s ruling that
defendant’s confession was admissible, we affirm the judgment.
FACTS
On
September 18, 2008, Darlene Saddler died in her Santa Ana residence. When Saddler was found, she was “lying
motionless face down in the kitchen†with a kitchen knife in the back of her
neck. Bullet fragments and a silver .22
caliber casing were found in the kitchen.
Blood was spattered on the kitchen walls and ceilings. A bullet was removed from Saddler’s brain at
her autopsy. A forensic pathologist
opined that Saddler’s death was a homicide caused by three gunshot wounds to
the head and a stab wound to the neck.
Saddler’s young daughter told her older brother (who found Saddler) that
a man had entered the house.
name="_ftnref2" title="">[2] The coroner estimated the time of death as
9:30 a.m.
Defendant,
who turned 18 on September 2, 2008, was linked to the murder of Saddler by
several distinct strands of evidence.
First,
defendant had a relationship with Saddler’s teenage daughter, Paula K. (who did
not testify). Early in 2009, police
found defendant’s phone number in Paula’s cell phone records. Defendant met Paula in mid-2007 and had what
defendant considered to be a romantic relationship with Paula after July 21,
2008. Jonathan Hanna claimed he was
party to a three-way phone conversation with defendant and Paula that occurred
in the summer of 2008 wherein the murder of Saddler was discussed. “Paula had stated that she [wanted] her mom
to die and [defendant was] going to help.â€
According to Hanna, Paula told him the next day that the plan was not
going to happen. On a separate occasion
in the summer of 2008, when Paula and Hanna were at defendant’s residence,
defendant showed Hanna a gun. According
to Hanna, Paula was Hanna’s girlfriend in 2008; Hanna met defendant in 2008 and
considered him to be a friend. “Paula
was one to cheat on†Hanna, so he would not be surprised if defendant was also
her boyfriend at the same time. Hanna
did not tell police about the three-way phone conversation or the gun when he
was interviewed immediately after the murder.
In his testimony, defendant denied the three-way phone conversation ever
occurred but admitted he showed a Ruger handgun to Hanna.
Second,
DNA evidence implicated defendant.
Police investigators swabbed various blood spots in Saddler’s home for
DNA analysis. Defendant could not be
excluded as the source of DNA found in one blood stain, on the edge of the
front door. Defendant’s DNA matched “at
every loci examined by the Orange County crime lab.†It was “[m]ore rare than 1 in 1 trillion that
. . . DNA could randomly repeat in†the pattern matched by defendant’s
DNA. Defendant’s DNA was not found on
the kitchen knife used to stab Saddler or in other locations in the kitchen. DNA from both Saddler and an unknown male were
found on the knife. This unknown DNA did
not match the DNA of any of the approximately 20 people tested by police
(including Hanna and Saddler’s family members).
In an attempt to explain how his blood could have been present on the
front door, defendant testified that in August 2008, Paula whipped him with a
tree branch causing defendant to bleed.
Paula tended to defendant’s wounds at her house.
Third,
defendant possessed the firearm used in the Saddler murder both before and
after the murder. As noted above,
defendant admitted showing a Ruger handgun to Hanna in the summer of 2008. Pursuant to a search warrant, police found a
disassembled Ruger handgun, a holster, and ammunition (including .22 caliber
ammunition) at the Tustin residence of defendant’s mother. A firearm specialist opined that the .22
casing found in Saddler’s kitchen was fired from the gun found pursuant to the
search warrant. Defendant testified that
Hanna handed the gun to defendant after the murder occurred and told defendant
to get rid of the gun. Defendant did not
previously know Hanna had the gun.
Fourth
and finally, defendant confessed to police that he murdered Saddler. A redacted version of the videotaped police
interview with defendant was played for the jury and a transcript was
introduced into evidence. Both the video
and transcript are part of the appellate record. Detectives Fajardo and Fulcher conducted the
interview, which consists of 131 transcript pages in the version of the
transcript submitted to the jury. As
measured by the time counter on the videotape (which includes both active
interview time and down time), the entire interview took place over the course
of approximately three hours. Defendant
leaned back with his head in his hands for much of the initial portion of the
interview. Toward the end, he rested his
arms on the table in front of him.
Defendant talked softly throughout the interview. He did not engage in extended monologues,
regardless of the topic. Basically,
defendant responded to questions presented by the detectives; many of
defendant’s responses were simply noises acknowledging he was listening to the
questions/comments of the detectives.
Defendant’s
confession, described in detail below, is the focus of this appeal. Defendant denied the truth of his confession
at trial, claiming he made the statements to protect Paula and also because he
was intimidated by the police.
Defendant
filed a written motion seeking to exclude all of the admissions made during the
police interrogation. The parties
stipulated to the following facts for purposes of the pretrial hearing. “1) On
April 16, 2009 Santa Ana police detectives Fajardo and Fulcher were in Cypress,
California, looking for Brian Landry;
[¶] 2) The detectives made contact
with Mr. Landry in the area of Orange and Valley View, in Cypress sometime
before 10:00 a.m. on April 16, 2009 while Mr. Landry was on foot; [¶] 3)
At the time he was contacted, Mr. Landry was carrying two packs that contained
various items of Landry’s personal property;
[¶] 4) Mr. Landry agreed to
accompany the detectives back to the Santa Ana police department; [¶] 5)
Detectives Fajardo and Fulcher drove Landry to the Santa Ana police
department; [¶] 6) Prior to being seated in the back seat of
the detectives’ vehicle, Mr. Landry’s packs and personal property were placed
in the vehicle’s trunk; [¶] 7) When Landry was escorted into the police
station, his personal property remained in the detectives’ trunk; [¶] 8)
The detectives also took a set of house keys that Landry was carrying prior to
the start of the interview, which began at approximately 10:10 a.m.; [¶] 9)
When the house keys were taken, Landry was told that the officers would be
using the keys to enter the homes of his mother and father, if necessary, in
the process of serving search warrants that they had for those homes. [¶]
10) None of the items of personal property, including the set of keys
[were] returned to Landry.â€
Detective
Fulcher testified at the pretrial hearing.
Sometime in early 2009, he began investigating defendant as part of the
inquiry into the Saddler murder. On
April 15, 2009, Fulcher obtained an arrest warrant for Landry. The next day, Fulcher looked for and found
defendant in Cypress, California.
Fulcher wished to interrogate defendant.
Fulcher did not read defendant his Miranda
rights when he came in contact with him or before the interview actually
began. When asked whether he had “it in
[his] mind at that point that [he was] going to arrest and take Mr. Landry into
custody at some point,†Fulcher responded, “Not at that point, no.†Fulcher would not necessarily have placed
defendant under arrest had defendant refused to cooperate. Fulcher claimed, “It would have really
depended on other circumstances that took place throughout that day.†Fulcher stated the arrest warrant was a “
warrant was “essentially for arrest for an interview.†Fulcher never actually told defendant about
the arrest warrant because defendant agreed to accompany Fulcher to the police
station for an interview. Fulcher denied
he had ever received training to question suspects first, then provide
questions. Fulcher claimed this
technique was in use in the past, but he has not used it in “probably about ten
years at least.â€
The
first 14 pages of the transcript consist of small talk between defendant and
Fajardo, mostly pertaining to defendant’s interest in joining the
military. Even in this rapport-building
portion of the interview, defendant was far from effusive. Fulcher then asked defendant general
informational questions (e.g., full name, birthday, home address, phone
numbers, driver’s license number, and social security number), to which
defendant responded clearly.
On
page 17, Fulcher stated: “I appreciate
you coming down here, you know, talking with us. I know you got . . . your school and everything, and . . .
you didn’t have to come with us†to discuss the murder of Paula’s mother. Defendant responded, “Well, I figured, you
know, I’d try to help . . . cause it’s crap what happened . . . .â€
Fulcher
asked about defendant’s relationship with Paula. Defendant stated he met her last year during
the school year, but “got to know her more . . . about June or July†of
2008. In response to further probing,
defendant stated he became “[k]ind of†close friends with Paula, but they were
not romantically involved. When asked
whether he only saw Paula in a group, defendant responded, “It was, uh, a lot
of the times just me and her, and then, uh, I met her mom through that, you
know.†Defendant added, “She seemed like
a nice lady, you know.†As the officers
continued to ask defendant about his relationship with Paula, defendant
mentioned a family issue with Paula’s stepdad, who supposedly used crack and
was kicked out of the family home after a fight in July or August of 2008.
Fulcher
then asked about defendant’s relationship with Saddler, which defendant
described as “not too bad.†Defendant
initially denied Paula had problems with her mother. Follow-up questioning revealed there might
have been “generic like, oh, me and my mom had an argument or fight.†Fulcher also asked about defendant’s (and
Paula’s) relationships with Paula’s stepdad and siblings. The detectives later asked about Saddler and
stepdad’s drug use, as well as the possibility that stepdad had something to do
with the murder.
Defendant
stated he was no longer picking up Paula for school because he had graduated
and now went to college. Defendant
estimated it had been a couple weeks before the murder since he had been to
Paula’s house. He was still in touch
with Paula though. Asked about whether
he remembered the the actual day of the murder, defendant responded, “Yeah, I
was with my friend John and we were gonna go to the campus Christian thing,
that starts at like 10:00 o’clock I think.â€
“And I was waiting at the college with him, like a few hours
beforehand.†Defendant found out about
the murder “like right after her school ended.â€
Defendant was at the high school when police officers picked up Paula. Paula saw defendant and told him she was
being taken by the police.
The
detectives asked defendant if he had any thoughts on what should happen to
Paula’s stepdad if it were found he had murdered Saddler. After a 10 second pause, defendant initially
responded, “No,†then added later after being asked again, “I guess let the justice
system decide.†Defendant stated he had
not attended Saddler’s funeral because he did not know about it until after it
happened.
The
officers continued to focus on defendant’s relationship with Paula and
defendant’s interactions with her.
Defendant contacted Paula at Orangewood Children’s Home, which is where
Paula was taken after the murder. Paula
never mentioned who she thought could have committed the murder. The officers suggested that, based on their
conversations with Paula, defendant had a romantic interest in Paula. Defendant continued to deny he dated
Paula. Fajardo mentioned the existence
of a diary kept by Saddler, in which Saddler wrote an entry about defendant’s
feelings for Paula and his plans for the future. Defendant eventually admitted he found Paula
attractive and was waiting for the future when Paula was old enough to have a
more serious relationship. Defendant
added that Paula’s mom liked him because she thought defendant was “a nice
guy.â€
When
Fajardo stated, “You wanted to get married at one point,†defendant responded
affirmatively. Defendant agreed with
Fajardo that Saddler “got a little pissy.â€
But Saddler “said . . . I [could] go with them to Bakersfield, I think,
and they, you know, live there, and then once, uh, she turned 18 we can†get
married. Fajardo assured defendant that
they did not care about the age issue (presumably, the potential criminality of
any sexual contact that may have occurred between defendant and Paula).
Defendant claimed the relationship consisted of mostly “kissing†and denied
anything else was occurring. Defendant
claimed the marriage conversation occurred over the phone in August 2008. Defendant agreed he still loved Paula at the
time of the interview. But defendant
denied he was still dating Paula.
After
noting he had interviewed “a shit load of people on this thing†and that many
of Paula’s friends had asked the police what was going on with the case,
Fajardo asked defendant why he had not reached out to police to ask about the
case. Defendant mumbled something. When asked whether he had thought about when
the police were going to ask for his DNA, he said “Not really.†Defendant provided unusual responses to
questions about whether he was right- or left-handed, claiming that he “usuallyâ€
writes with his left-hand but “usually†throws with his right-hand. Defendant also provided unclear responses
about if and when he knew about Paula dating other boys.
At
page 60 of the transcript submitted into evidence, the officers returned to the
topic of Saddler, introducing negative pieces of information about her (“could
be a bit of a bitch to put it lightly,†“didn’t treat people right,†“brought a
lot of trouble to herself, her family,†“we know who she is and we know what
she’s aboutâ€). Defendant responded with
noncommittal noises to most of these comments.
The officers also revisited defendant’s relationship with Paula’s
younger sister and the interactions between them.
At
page 63, the officers reminded defendant of the extensive investigation process
and the evidence uncovered. “[T]he
investigation’s getting to a point where . . . we’ve been able to eliminate a
lot of people, and . . . we have unanswered questions at this point, okay. And some of those
questions . . . , I think you could probably help us with
some of these answers. . . . I know you
kind of downplayed your . . . relationship
with . . . Paula.â€
Defendant responded, “Mh-huh.†In
contrast to prior statements, defendant then agreed “kind of a little bit†that
one of the reasons he had brought up love and marriage to Paula was he had
sensed something going on between Paula and Hanna. At page 66, Fulcher stated, “I’m just gonna
ask you straight up, man-to-man, okay.
Are you trying to protect Paula right now?†“I’m talking about protect her from possible
involvement in her mother’s death?â€
Defendant responded, “No.†He
added, “I wouldn’t think that she’d be able to do it. I mean she’s at school.†Defendant then agreed he had not shared
everything he knew about Paula’s relationship with her mother, adding Paula
“had fights and what not, and she told . . . my friends like bruises that she
had from her mom, so.†The officers
continued in this vein for several transcript pages (i.e., suggesting defendant
was protecting Paula and he should tell everything he knew about the
relationship between Paula and Saddler).
Defendant provided additional details about the strained relationship
between Paula and Saddler, including alleged physical abuse of Paula as related
by Paula.
On
page 71, Fulcher asked whether Paula ever told defendant she wanted Saddler
dead. Defendant indicated Paula had
not. A page later, defendant backtracked
when asked what Paula would say: “I wish
she was dead, you know. Uh . . . and
asked, you know, if I could do it (unintell) . . . no, mh, that would screw up
my life.†The following ensued. FULCHER:
“So, she, she flat outright asked you to, to kill her mom by saying I
wish she was dead, can you do it?â€
DEFENDANT: “Yeah, kind of like a
round about way.†FULCHER: “A round about way. How many times do you think she asked you
that?†DEFENDANT: “A couple times.†Over the next several pages of transcript,
Fulcher restated various facts and described the circumstances of defendant’s
relationship as perceived by Fulcher.
Fulcher added commentary suggesting it was a very “combustible set of
circumstances,†citing in particular defendant’s relationship with Paula (“a
very attractive young ladyâ€) and Saddler’s abuse of Paula.
At
page 74, Fulcher wondered “if all that stuff didn’t come together . . . into
something tragic that happened.†He
continued, “And that leads us to the point of, of having to ask you did you
take it upon yourself to try to help Paula out in this situation?†DEFENDANT:
“I printed out the papers for like Child Services, trying to get, you
know, uh, I went to the Penal Code by the website†“to find, uh, child abuse
things.†FAJARDO: “You’re missing the point, Brian.†DEFENDANT:
“Yeah.†FAJARDO: “Totally missing the point. You’ve made some mistakes, man.†DEFENDANT:
“Mh.†FAJARDO: “We’re not sitting
here judging you, but it is what it is, man.
It is what it is. You find
yourself here for a reason, but we’re just trying to get down to the
bottom. So we know there was many
different factors that put you in that situation. We know that.†DEFENDANT:
“Mh-huh.†FAJARDO: “You made some mistakes, and you need to fill
in some of these gaps here. I know that
without [Saddler] in the picture you and Paula got a future. I think you chose to take a different path
and take care of this. I’m not saying
you’re a bad person, I’m not saying that, (sigh), I’m not saying you’re an
asshole. I don’t care, I don’t know you
like that, but there’s some gaps in the story†“that make us sit here looking
at the individual that is responsible for [Saddler’s] death. There is no other way to put it, man,
Brian.†DEFENDANT: “Mh-huh.â€
The
interrogation continued in this fashion (i.e., officers indicating defendant
murdered Saddler and presenting their theories of why defendant murdered
Saddler, with defendant providing mostly minimal responses). At one point, one of the detectives suggested
that if they “thought straight out you were just, you just did it for shits and
giggles, I’m going to kill this bitch, (unintelligible) I would have said put
your hands on your fricken head right now, turn around put your hands, we’re
going to cuff you, but because we know there’s other factors and, and possibly
a reason why this happened, okay, we wanted to know from you, to get your side
of the story . . . .â€
The detectives encouraged defendant to tell the truth, calling on his
honor as a man. The detectives also
related their view of Paula as a manipulator.
At
several points, defendant resisted the detectives’ logic. FAJARDO:
“You didn’t tell me what happened that day. You forget [the younger daughter]. You forget forensics. We found (unintell) . . . there, Brian. What the fuck happened? What made you go that route?†DEFENDANT:
“I was with my friend John.â€
FAJARDO: “No you weren’t. You can say that, but you weren’t,
unfortunately. The pieces to the puzzle,
man, that’s what it came down to. Now if
you’re saying that she put you up to this, fuck it then, then say it and we’ll
deal with her. I’m not putting those
words in your mouth, but I need to hear it from you. Why’d you kill [Saddler]?†DEFENDANT:
“I didn’t. It may look like it,
but I didn’t.†In response to a question
regarding how defendant felt about what the detectives had said, defendant
replied, “[k]ind of pressured.†When
told he looked nervous, defendant retorted, “But I’ve had coffee too.â€
Fajardo
ambiguously stated, “You know this will be your only opportunity to hear your
side.†But Fulcher clarified this
remark, “And basically what my partner just said to you, um, once we get up and
walk out of here that’s it, we’re done, okay.
Then it’s up to the courts and, and through all that. This is your opportunity†“to give us your
side of this. We’re, we’re totally
willing to listen.â€
The
detectives then suggested to defendant that they had obtained his DNA and had
followed defendant as part of their investigation. Fajardo expressed how important it was for
defendant to finally tell the truth: “I
don’t see you having any other option, man.
I really don’t. You need to just
lay it out on the table and say, this is what fucking happened, this is how it
happened, and this is why. I don’t see .
. . any other choice. Why would you
leave it up to us, or, or better yet, a fucking sharp, little fucking girl to
interpret your actions? Why? That’s all, they’re all lies inside of you,
in your head and your heart. I can’t put
words in your mouth, man. You sit there
cool, calm and collect[ed], but unfortunately all the jury is gonna see is you
sitting here cool, calm and collect[ed] in a recorded room.†“You know.
They’re gonna say, fuck, this guy don’t care, he didn’t give a fuck
about her, look at him he’s got his arms on his fucking head, kicking back, all
he needs is a cigarette and fucking beer and he’s having a good time. And if you don’t think the jury . . . looks
at people like that, then you’re mistaken.
Yeah, audio and video.†Fajardo
empathized with defendant putting up with Paula’s constant requests to kill
Saddler. The detectives mentioned the
importance of showing remorse.
On
page 86, as the officers continued to pepper defendant with questions and
commentary, defendant asked, “Doesn’t there [have] to be like
“Well, there could be, I mean.â€
FULCHER: “What, what, what are
you trying to say?†DEFENDANT: “Well, cause, um, it’s just a, uh, read the
Mir . . . Miranda Rights,
whatever.†FULCHER: “Well (unintell) . . . DEFENDANT:
“You know if you’re doing like interviewing. (Sniffle).â€
FAJARDO: “You . . . weren’t
arrested.†DEFENDANT: “Oh.â€
FULCHER: “You’re not, you’re not
under arrest.†DEFENDANT: “Right.â€
FULCHER: “I’ll put it right out
there if that’s . . . something you want, we, we’ll
definitely do it.†DEFENDANT: “That’s fine.†FULCHER:
“Okay.†DEFENDANT: “Alright.â€
FULCHER: “Is that, is that
something you want, you want done?â€
DEFENDANT: “No, that’s
fine.†FAJARDO: “You know, we’re we’re trying to fill in the
gaps. I mean don’t wanna put words in
your mouth though either, you know.â€
After
this exchange, the officers returned to questioning defendant about the murder
of Saddler, interspersing questions about whether defendant was ashamed about
what he did, whether he injured himself, and how defendant would feel if
someone had done this to his mother. The
officers returned to the topic of how defendant’s demeanor would come across to
a jury. “You showed a glimpse of remorse
when you shut your eyes, man.†“[Y]ou’re
coming off as . . . somewhat I don’t give a fuck. It doesn’t even look . . . real. It almost looks immature.†When asked why he would not talk, defendant
responded he was “just scared.†After
Fajardo confirmed defendant was scared of going to jail, Fajardo noted “well,
you probably will go to jail.â€
At
this point, on page 90 of the transcript, the officers took a short break and
offered defendant a drink of water. When
he returned, Fulcher indicated that “since you brought up the whole, that
read it to you just to make everybody feel comfortable. This way we’re all cool with it, okay.â€
Fulcher
stated he would read defendant his rights, pausing after each section to
inquire whether defendant understood. FULCHER: “Okay.
Alright. You have the right to
remain silent. Do you understand?†DEFENDANT:
“Yes.†FULCHER: “Anything you say may be used against you in
court. Do you understand?†DEFENDANT:
“Yes.†FULCHER: “You have the right to an attorney before and
during any questioning. Do you
understand?†DEFENDANT: “Not exactly.†FULCHER:
“In other words, you have the right to contact a lawyer at . . . anytime
you want. It could be now, it could be
later, you have the right to an attorney.â€
DEFENDANT: “Right.†FULCHER:
“At all times. Understand
that?†DEFENDANT: “Mh-huh, yeah, yes.†FULCHER:
“Yes. If you cannot afford an
attorney, one will be appointed to you before questioning if you wish. Do you understand? DEFENDANT:
“Yeah, yes.†FULCHER: “Basically, what this means is if you don’t
have the money, you know, the, the government will give you the money to, to
have an attorney.†DEFENDANT: “Right.â€
FULCHER: “Um, can we talk about
what happened?†DEFENDANT: “Yes.â€
Fulcher and defendant signed a document memorializing the provision of
defendant’s Miranda rights, certain
personal items were taken away from defendant (e.g., a belt), and defendant
took a break to use the restroom.
When
questioning recommenced, defendant quickly and clearly confessed to the murder
of Saddler (although he did so by responding to questions rather than telling a
chronological story of what happened).
When asked how he got into the house, defendant responded that he opened
the front door from the inside by reaching his arm through the mail slot. Defendant looked around when he entered the
house; hid in another room while Saddler was dropping Paula off at school. Defendant approached Saddler from the side as
Saddler prepared food in the kitchen.
Defendant
first claimed he “kind of blanked out†after he approached Saddler. When asked if he took weapons with him,
defendant responded “a blade.†After he
was reminded that the police collected evidence at the scene, defendant was asked
whether he had a gun with him. Defendant
paused for 20 seconds, then said, “Yeah.â€
Defendant shot Saddler two or three times. Defendant then grabbed a knife on the counter
and severed Saddler’s spine. Defendant
collected two of the bullet casings, leaving one behind; he could not find the
third casing. Defendant claimed he got
rid of the gun. It was his grandmother’s
old gun.
After
prompting and a series of leading questions, defendant stated he saw Saddler’s
young daughter and reassured her that he would not hurt her. Defendant tried to comfort the girl after
killing Saddler. Defendant walked out
the front door and rode his bicycle home.
Defendant wore black pants, a black jacket, boots, and a “face thing,â€
which he carried in a backpack on his bicycle.
Defendant sent a text message to Paula indicating, “it’s done.†Paula had told defendant she wanted this done
“too many†times over the previous months.
Defendant had a three-way conversation with Paula and Hanna “like a
month or so†before the murder. Hanna
was not involved in the planning of the murder as it went forward. Defendant was finally convinced to go through
with the murder by Paula’s threat to kill herself and Saddler. Paula assisted defendant’s plan by telling
him how to get inside the house.
Defendant and Paula talked about the murder the night before it
happened.
Toward
the end of the interview, after his confession, defendant asked the detectives,
“That’s capital, isn’t it?†Fulcher
avoided answering the question, noting “there’s a lot of factors that . . .
come into capital†and the punishment determination will be up to
“lawyers.†The officers revisited the
facts one more time, then handcuffed defendant and informed him he would taken
to jail.
The
court, considering the “totality of the circumstances,†concluded defendant was
in “custody†slightly more than halfway through the interrogation. In support of its conclusion that defendant
was not in custody from the beginning of police contact on April 16, 2009, the
court cited the lack of a formal arrest, the lack of handcuffs, defendant’s
lack of awareness of the arrest warrant, and the conduct of the “interview in a
quiet, calm manner†without the officers raising their voices. As for the court’s finding that custody began
during the interview, the court noted the officers began to focus on defendant
as a suspect rather than merely a source of information. The court added that defendant asked about
began, at which point “a reasonable person would believe they were not free to
go[, e]specially with the added fact that . . . keys were
taken and they were going to be used for a search warrant.â€
The
court found defendant was advised of his rights pursuant to
rights. “The Miranda advisement was read . . . approximately three pages [after
defendant mentioned Miranda].†“[T]he officer did slightly minimize
it . . . .†But the actual statement of
including a further explanation to a question asked by defendant.
Finally,
again based on the “totality of the circumstances,†the court concluded
defendant’s confession was voluntary.
Defendant did not confess prior to the reading of his
detectives acted intentionally or unintentionally in delaying the reading of
into the interview, the provision of the Miranda
warnings under the circumstances of this case effectively advised defendant
that he had a choice going forward as to whether to provide an admissible
statement. Defendant’s “ability to
reason, comprehend, or resist†were not “so disabled that he was incapable of
free or rational choice.†The detectives
did not raise their voices, “even when the accusatory questions were being
asked.†The detectives remained seated
during the interrogation. Landry was
seated with his hands behind his head.
“There were no threats or promises.
The interview was conducted in a calm, nonthreatening manner. In the video [defendant] appears relaxed.â€
DISCUSSION
Defendant
contends his confession was inadmissible because it was unconstitutionally
extracted against his will. Defendant’s
argument is threefold: (1) defendant was
young (18 years old) and unfamiliar with the criminal justice system, thereby
making him particularly susceptible to coercive police tactics; (2) the police
used improper pressure tactics, such as insisting on defendant’s guilt and
offering implied promises of leniency in exchange for a confession; and (3) the
police withheld Miranda warnings on
the pretext that they believed defendant was not in custody, waiting to provide
Miranda warnings after defendant had
already been coercively questioned.
Determination of Whether Confession is Voluntary
“‘The
Fourteenth Amendment to the federal Constitution and article I, section 15, of
the state Constitution bar the prosecution from using a defendant’s involuntary
confession. [Citation.] [These provisions] require[] the prosecution
to establish, by a preponderance of the evidence, that a defendant’s confession
was voluntary. . . . [¶] Under both
state and federal law, courts apply a “totality of the circumstances†test to
determine the voluntariness of a confession.’â€
(People v. Holloway (2004) 33
Cal.4th 96, 114 (Holloway).) “We accept a trial court’s factual findings,
provided they are supported by substantial evidence, but we independently
review the ultimate legal question.†(
480.) “When, as here, the interview was
tape-recorded, the facts surrounding the giving of the statement are
undisputed, and the appellate court may independently review the trial court’s
determination of voluntariness.†(
Cal.App.4th 865, 873.)
“A
statement is involuntary if it is ‘not “‘the product of a rational intellect
and a free will.Չۉ۪ [Citation.] The court in making a voluntariness
determination ‘examines “whether a defendant’s will was overborne†by the
circumstances surrounding the giving of a confession.’ [Citation.]
Coercive police tactics by themselves do not render a defendant’s
statements involuntary if the defendant’s free will was not in fact overborne
by the coercion and his decision to speak instead was based upon some other
consideration.†(People v. Rundle (2008) 43 Cal.4th 76, 114 (
People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.) Factors
to consider in determining voluntariness include “‘“‘the crucial element of
police coercion [citation]; the length of the interrogation [citation]; its
location [citation]; its continuity’ as well as ‘the defendant’s maturity
[citation]; education [citation]; physical condition [citation]; and mental
health.’â€â€™â€ (People v. Boyette (2002) 29 Cal.4th 381, 411; see also
Cal.App.4th 200, 209 [defendants’s “age, sophistication, prior experience
with criminal justice system, and emotional state†are relevant factors].)
“‘It
is well settled that a confession is involuntary and therefore inadmissible if
it was elicited by any promise of benefit or leniency whether express or
implied. [Citations.] However, mere advice or exhortation by the
police that it would be better for the accused to tell the truth when
unaccompanied by either a threat or a promise does not render a subsequent
confession involuntary. . . . Thus,
“[w]hen the benefit pointed out by the police to a suspect is merely that which
flows naturally from a truthful and honest course of conduct,†the subsequent
statement will not be considered involuntarily made. [Citation.]
On the other hand, “if . . . the defendant is given to understand that
he might reasonably expect benefits in the nature of more lenient treatment at
the hands of the police, prosecution or court in consideration of making a
statement, even a truthful one, such motivation is deemed to render the
statement involuntary and inadmissible . . . .â€â€™â€ (Holloway,
supra, 33 Cal.4th at p.
115.)
“The
business of police detectives is investigation, and they may elicit
incriminating information from a suspect by any legal means. ‘[A]lthough adversarial balance, or rough
equality, may be the norm that dictates trial procedures, it has never been the
norm that dictates the rules of investigation and the gathering of proof.’ [Citation.]
‘The courts have prohibited only those psychological ploys which, under
all the circumstances, are so coercive that they tend to produce a statement
that is both involuntary and unreliable.’â€
(People v. Jones (1998) 17
Cal.4th 279, 297-298.) Suggesting
possible justifications for a homicide is not coercive; this tactic instead
suggests “possible explanations of the events and offer[s] defendant an
opportunity to provide the details of the crime.†(People
v. Carrington (2009) 47 Cal.4th 145, 171.)
Interviews
“As
a prophylactic safeguard to protect a suspect’s Fifth Amendment privilege
against self-incrimination, the United States Supreme Court, in
agencies to advise a suspect, before any custodial law enforcement questioning,
that ‘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.’
[Citations.] If the suspect
knowingly and intelligently waives these rights, law enforcement may
interrogate, but if at any point in the interview he invokes the right to
remain silent or the right to counsel, ‘the interrogation must cease.’†(People
v. Martinez (2010) 47 Cal.4th 911, 947.)
“Failure to administer Miranda
warnings creates a presumption of compulsion.
Consequently, unwarned statements that are otherwise voluntary within
the meaning of the Fifth Amendment must nevertheless be excluded from evidence
under Miranda.†(Oregon
v. Elstad (1985) 470 U.S. 298, 307 (Elstad).) The “Miranda
presumption†is “irrebutable for purposes of the prosecution’s case in chief .
. . .†(Id. at p. 307.)
Law
enforcement officers “are not required to administer Miranda warnings to everyone whom they question.†(Oregon
v. Mathiason (1977) 429 U.S. 492, 495.)
“‘Absent “custodial interrogation,†Miranda
simply does not come into play.’†(
401.)
person who enters a police station and states that he wishes to confess to a
crime, or a person who calls the police
to offer a confession or any other statement he desires to make. Volunteered statement of any kind are not
barred by the Fifth Amendment and their admissibility is not affected†by the
absence of a reading of Miranda
rights. (Miranda, supra, 384 U.S.
at p. 478, fn. omitted.)
“In
midstream Miranda cases (where a
defendant is interviewed before and after the giving of Miranda warnings), a defendant’s postwarning inculpatory statements
are generally admissible if the prewarning statements and the postwarning statements were voluntarily made. [Citation.]
But where law enforcement uses a two-step interrogation technique ‘in a
calculated way to undermine the Miranda
warning,’ curative measures must be taken to ensure that a reasonable person
would understand the Miranda
advisement and the significance of waiving Miranda
rights.†(People v. Camino (2010) 188 Cal.App.4th 1359, 1363-1364 (
“‘Even
when a first statement is taken in the absence of proper advisements and is
statement was voluntary a subsequent voluntary confession ordinarily is not
tainted simply because it was procured after a Miranda violation. Absent
“any actual coercion or other circumstances calculated to undermine the
suspect’s ability to exercise his free will,†a Miranda violation — even one resulting in the defendant’s letting
“the cat out of the bag†— does not “so taint[] the investigatory process that
a subsequent voluntary and informed waiver is ineffective for some
indeterminate period.†[Citations.] Rather “there is no warrant for presuming
coercive effect where the suspect’s initial inculpatory statement, though
technically in violation of Miranda,
was voluntary. The relevant inquiry is
whether, in fact, the second statement was also voluntarily made.â€â€™â€ (People
v. Scott, supra, 52 Cal.4th at p.
477.) “‘A subsequent administration of
given a voluntary but unwarned statement ordinarily should suffice to remove
the conditions that precluded admission of the earlier statement.’†(People
v. San Nicolas (2004) 34 Cal.4th 614, 639.)
These
principles are derived from two United States Supreme Court cases. Elstad,
supra, 470 U.S. 298, “held that a
suspect who responds ‘to unwarned yet uncoercive questioning’ may later waive
his rights and confess after being ‘given the requisite Miranda warnings.’†(
police arrived at the residence of a burglary suspect with an arrest
warrant. (Elstad, supra, 470 U.S.
at p. 300.) Before escorting the suspect
to the patrol car and without reading the suspect his Miranda rights, an officer interacted with the suspect in the
suspect’s living room (i.e., do you know why we are here, do you know the
victim, the police think you are involved), whereupon the suspect made an
incriminating statement to the effect that he was present at the burglary. After he was read his Miranda rights at the police station, the suspect confessed to his
role in the burglary and signed a written statement describing his
conduct. (Elstad, at p. 301.) It was
conceded that the suspect was in custody at the time of his first incriminating
statement. Thus, the initial
statement inadmissible. (
Supreme Court held the postwarning confession could be introduced against the
defendant. (Id. at p. 300.) “It is an
unwarranted extension of Miranda to
hold that a simple failure to administer the warnings, unaccompanied by any
actual coercion or other circumstances calculated to undermine the suspect’s
ability to exercise his free will, so taints the investigatory process that a
subsequent voluntary and informed waiver is ineffective for some indeterminate
period.†(Id. at p. 309.)
In
Seibert, the court “test[ed] a police
protocol for custodial interrogation that calls for giving no warnings of the
rights to silence and counsel until interrogation has produced a
confession. Although such a statement is
generally inadmissible, since taken in violation of Miranda [citation], the interrogating officer follows it with
suspect to cover the same ground a second time.†(Seibert,
supra, 542 U.S. at p. 604 (plur. opn.
of Souter, J.).) The question before the
court was the “admissibility of the repeated statement.†(Ibid.) In a fractured set of opinions, the court
held the repeated statement was inadmissible.
(Ibid.)
In
his concurring opinion, Justice Kennedy stated that the interrogation technique
at issue amounted to a deliberate violation of Miranda, intentionally designed to circumvent its protections. (Seibert,
supra, 542 U.S. at pp. 618, 620
(conc. opn. of Kennedy, J.).) “If the
deliberate two-step strategy has been used, postwarning statements that are
related to the substance of prewarning statements must be excluded unless curative
measures are taken before the postwarning statement is made. Curative measures should be designed to
ensure that a reasonable person in the suspect's situation would understand the
import and effect of the Miranda
warning and of the Miranda
waiver.†(Seibert, supra, at p. 622
(conc. opn. of Kennedy, J.).) “This narrower test —that excludes confessions
made after a deliberate, objectively ineffective mid-stream warning —
represents Seibert’s holding. In situations where the two-step strategy was
not deliberately employed, Elstad
continues to govern the admissibility of postwarning statements.†(United
States v. Williams (9th Cir. 2006) 435 F.3d 1148, 1158; see also
Our
independent review of the video and transcript of the interrogation indicates
that defendant’s admissions and confession were voluntary and not coerced. There were no “impermissible threats of
punishment or promises of leniency.†(
By insisting they wanted to hear defendant’s story and encouraging him
to show remorse and fill in the gaps in the detectives’ knowledge, the
detectives cannot reasonably be deemed to have conveyed an offer of lenient
treatment in exchange for a confession.
The officers did not mischaracterize the law; indeed, they said little
to nothing about the law. (Cf.
Cal.App.4th 296, 306-307, 315 [“materially deceptive†explanation of law
by omission of felony murder rule led to confession procured by false promise
of leniency].)
An
interrogation room in the police station is not the most comfortable
environment. Moreover, the detectives
subjectively considered defendant to be a suspect and withheld this
information, presumably in the hope that by doing so the interrogation would be
more successful. But, with the exception
of their penchant for using conversational profanity, the detectives were mild
mannered in the conduct of the interview.
They did not intimidate defendant physically or verbally. The interview was not unreasonably long, and
defendant was provided with restroom access and beverages. (See People
v. Jablonski (2006) 37 Cal.4th 774, 815-816 [interview spread over
four hour period with refreshment and lunch break not coercive];
Cal.App.4th 987, 1011 [17 year old’s four hour interview by “two
experienced detectives†not coercive under totality of circumstances].) Defendant was an adult who was enrolled in
college; there is no evidence in the record suggesting he suffered from mental
or physical illness that would preclude him from telling the truth or declining
to participate in the interview.
Certainly, both the transcript and the video evidence of defendant’s
interrogation depict an individual who was evasive and reluctant to talk about
his role in Saddler’s murder. The police
officers engaged in legitimate tactics to overcome defendant’s reluctance —
developing a rapport with defendant, verbally empathizing with defendant’s
situation vis-à -vis Paula, offering possible motives for defendant’s actions,
confronting defendant with evidence (e.g., the DNA), and imploring defendant to
tell his side of the story. Defendant’s
confession and associated admissions, both before and after the
We
likewise conclude the court correctly found a Seibert violation did not occur.
As the court found, defendant was in custody before the topic of
interview focused on obtaining information about Saddler’s family members,
particularly Paula and the stepfather.
It was not until about halfway through the interview that the
questioning suggested defendant was a focus of the investigation. At that point, the court ruled defendant was
in custody. Although defendant never
actually invoked his right to remain silent or right to an attorney (either
before or after having his Miranda rights
read to him), he raised Miranda
himself and the police did not immediately stop the interview to read defendant
his rights. It is certainly reasonable
to take issue at the margins with the process followed by the police in this
case.
But
Seibert does not compel the exclusion
of defendant’s voluntary confession under the circumstances of this case. Defendant does not actually argue in his
brief that he was in custody from the beginning of the interview or at any time
prior to the point of the interview that constituted custody according to the
trial court. Thus, defendant was not
interrogated in custody for long before the Miranda
warnings were provided. As to this brief
portion of the interview between the commencement of custody and the provision
of Miranda warnings, there is no
evidence in the record suggesting the police followed a policy to question
first, provide Miranda rights
later. Fulcher denied the existence of
such a policy or practice and attributed the conduct of defendant’s
interrogation to his custody determination.
And although defendant made some admissions that were harmful during the
first portion of the interview (i.e., admitting Paula had asked defendant to
kill Saddler), the court was correct in concluding the police did not extract
an actual confession from defendant until after his Miranda rights were read to him.
Fulcher carefully read defendant his Miranda
rights and defendant subsequently agreed to continue talking about the Saddler
murder. Under the totality of the
circumstances, defendant’s pre-Miranda
admissions and post-Miranda
confession were voluntary.
DISPOSITION
The
judgment is affirmed.
IKOLA,
J.
WE CONCUR:
ARONSON,
ACTING P. J.
THOMPSON, J.
All statutory
references are to the Penal Code.
The parties
stipulated that had Saddler’s young daughter testified, she would have
described the intruder as “Mexican, wearing dark clothing, like a costume,
gloves, and a bank robber’s mask, skinny, long hair, and armed with a
firearm.†The prosecutor conceded in his
closing argument that defendant does not match all aspects of this description.
