P. v. Wynn

Filed 12/6/07 P. v. Wynn CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Amu Billy Wynn appeals a judgment that includes convictions for first degree murder (Pen. Code,  187),^[1]attempted murder ( 664/187, subd. (a)), and robbery ( 212.5, subd. (c)). He claims that police conducted a custodial interrogation in violation of his rights as enunciated in Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and more particularly in violation of the prophylactic rule set out in Edwards v. Arizona (1981) 451 U.S. 477 (Edwards)that custodial interrogation must cease once a suspect has invoked his or her right to have counsel present. Defendant contends it was therefore prejudicial error for the trial court to deny his motion to suppress the incriminating admissions he made during that interrogation. As discussed below, we find no reversible error and affirm the judgment.

Background

On the afternoon of October 11, 2002, defendant and two accomplicesSeti Scanlon and Sikai Telearobbed a Wells Fargo Bank in Burlingame. All three were armed. Entering the bank through a rear door, defendant discharged a revolver into the ceiling and demanded money from the tellers at gunpoint. While defendant was collecting the money, Scanlon saw a person close an office door near the banks front entrance, and fired through the door as he shouted a command for that person to come out. The bullet struck Alice Martel, the bank manager, as she stood behind the door. Despite emergency surgery later that day, Martel died from the gunshot wound. Telea fired his weapon as well, seriously wounding another bank employee who had ducked under his desk. Defendant and his associates fled the scene in a vehicle driven by a fourth accomplice, Manny Liu.

A few weeks later, on the evening of November 1, 2002, defendant and four associates committed two robberies in Mountain View in Santa Clara County. While defendant took money at gunpoint from the manager of a fast food restaurant, another accomplice, Semisi Umufuke, stood guard outside. At the same time Scanlon and Telea robbed a market across the street. All four fled the scene in a vehicle again driven by Liu. An officer of the Mountain View Police Department (MVPD) was on patrol nearby, saw Lius vehicle speed away, and gave pursuit. After Liu pulled over and stopped his vehicle, Scanlon emerged and fired on the officer, who was injured in the face as the bullet shattered his windshield.

Three other MVPD officers, in two patrol cars, took up pursuit of Lius vehicle soon after this shooting. A high speed chase ensued, from Mountain View to East Palo Alto in San Mateo County, during which Scanlon and Telea fired on the pursuing officers, at one point firing through the rear window of Lius vehicle and blasting out the windshield of one of the patrol cars.

Entering East Palo Alto, Lius vehicle ran a red light, collided with another vehicle, and spun to a halt. The occupants fled on foot. Searching the area around the crash site, officers apprehended both defendant and Liu, and MVPD officers took them into custody.^[2]

For approximately two hours, beginning around 5:00 a.m. on November 2, 2002, MVPD investigators questioned defendant after reading him his Miranda^[3]rights and obtaining his waiver of those rights. Their questioning focused on defendants role in the events of the preceding evening. Meanwhile, the MVPD contacted the Burlingame Police Department (BPD) to report that it had suspects in custody who might have been involved in the Burlingame bank robbery that had occurred on October 11.

Less than 30 minutes after the conclusion of the MVPD interview, at 7:28 a.m., two investigators from San Mateo County entered the MVPD interview room where defendant remained. These officers were John Minahan, an investigator for the San Mateo County District Attorneys Office, and Charles Castle, a BPD detective. Minahan identified himself and Castle as officers from the Burlingame area. He reminded defendant that the MVPD investigators had previously read [his] Miranda rights, that defendant had indicated to those investigators his understanding of those rights, and that he had agreed to waive those rights and talk with them. When Minahan asked defendant if that was still the same case, defendant nodded in the affirmative.

Minahan and Castle then began to question defendant concerning his possible role in the Burlingame bank robbery. Defendant initially denied any involvement in the robbery, but told the investigators he had heard of it. The officers, in turn, repeatedly challenged the truth of defendants denial, suggesting they had knowledge from other sources of defendants involvement in the bank robbery. After approximately one hour of questioning in this second interview, defendant said: would I be like messing with you guys if I said could I get a lawyer present . . . while we talk? After several more minutes of conversation, he told Minahan and Castle more pointedly that he fe[lt] like [he] need[ed] a lawyer present. Following a further, brief exchange of comments, Minahan and Castle left the room, telling defendant as they did so that they [would] not come back unless defendant changed [his] mind and want[ed] to talk and communicated that decision to an MVPD officer. Minahan left the interview room at 8:20 a.m. and Castle left moments later.

Defendant remained in the interview room for some two and one-half hours. During this time MVPD officers periodically entered the room to check on him, to offer him something to drink, and to escort him to a bathroom. At one point an officer brought in an individual whom he introduced as a doctor, who collected a blood sample from defendant. At 10:58 a.m., two MVPD officers escorted defendant from the interview room.

James Hutchings, a BPD officer assigned to support Minahan and Castle, later testified that the MVPD officers took defendant to the stations booking area in order to take fingerprints, and he accompanied them to be a witness in the event . . . defendant . . . ma[d]e any remarks regarding [the] case. When they arrived in the booking area, the MVPD officers began looking for fingerprint equipment. According to Hutchings, defendant then turned to [him] and asked if he could speak with [Hutchings] privately. Hutchings asked the MVPD officers to leave them alone for a moment so that he and defendant could have a private conversation. He stated that defendant then told him that he knew he was in trouble, and asked if there was some way [Hutchings] could help make a deal for [defendant] that would reduce any punishment he might receive. Hutchings told defendant he was forbidden from discussing the matter with him as [he] knew [defendant] had asked for an attorney. Defendant then asked if Minahan and Castle were still in the building . . . and could [he] please speak with them again. Hutchings said he would convey defendants request to the investigators and they would recontact him. After escorting defendant back to the interview roomwhich defendant reentered at 11:24 a.m.Hutchings sought out Minahan and Castle and relayed defendants request.

A little over one hour later, at 12:54 p.m., Minahan entered the interview room and read defendant his Miranda rights. Minahan then told defendant that when we spoke this morning . . . you said you wanted to talk to your attorney first [but] [y]ouve changed your mind since then? Defendant replied: Yes, yes. Minahan asked why, and defendant said I was talking with . . . he was talking to me. Castle entered the room a few moments later, and he and Minahan resumed their questioning concerning the Burlingame bank robbery. During this third interview, defendant admitted and described both his role in the robbery and that of his accomplices, Scanlon, Telea, and Liu.

The San Mateo County District Attorney filed an information on February 9, 2004. As later amended, the information charged defendant with one count of first degree murder ( 187, subd. (a), 190, subd. (a)(17)(A)), four counts of attempted murder ( 664/187, subd. (a)), and five counts of robbery ( 212.5, subd. (c)), all with accompanying firearm enhancement allegations ( 12022.53, subd. (c)). Defendant pleaded not guilty to all counts and denied all allegations.

On February 9, 2005, defendant filed a motion to suppress the admissions he made during the final interview conducted by Minahan and Castle on November 2, 2002. The trial court heard testimony relating to this motion over a period of two days. The testimony included that of Officer Hutchings, which we have summarized above. The defendant gave a conflicting account, claiming it had been Hutchings and not himself who had initiated contact in the booking area. During argument on the motion, defendants trial counsel focused primarily on the argument that Minahan and Castle had resumed the interrogation in violation of Edwards, supra, 451 U.S. 477, because defendant had not, in fact, been the one to initiate contact with the authorities after invoking his right to counsel. In denying the motion to suppress on April 11, 2005, the trial court resolved the factual conflict in favor of the prosecution, finding Hutchings testimony to be entirely credible.^[4]

On June 17, 2005, defendant entered a slow plea to a further amended information that charged him with one count of first degree murder of Martel ( 187, subd. (a)) with a firearm enhancement allegation ( 1203.06, subd. (a)(1), 12022.53, subd. (b)), one count of second degree robbery in connection with the Burlingame bank robbery ( 212.5, subd. (c)), one count of attempted murder of the pursuing MVPD officers ( 664/187, subd. (a)), and one count of second degree robbery in connection with the fast food restaurant in Mountain View ( 212.5, subd. (c)). In other words, defendant pleaded not guilty to the amended charges and denied the amended enhancement allegation, but simultaneously waived his right to a jury trial and submitted the determination of his guilt to the trial court on the basis of designated portions of the preliminary hearing transcript, the transcript of the hearing on defendants motion to suppress, and certain exhibits admitted during the latter hearing, including both the videotaped recording of the interviews conducted by Minahan and Castle on November 2, 2002, and a transcript of that recording.^[5]

A written agreement filed in connection with defendants plea stipulated that defendant understood he would be found guilty of the amended charges, that he would receive a maximum sentence of 46 years to life in state prison with the possibility of parole, and that he agreed that, if any portion of the judgment was later reversed on direct appeal or through collateral challenge by writ petition, he would be subject to retrial under the original information, and if convicted of murder on retrial would face a sentence of life in state prison without the possibility of parole, together with consecutive determinate sentences on the remaining charges and allegations.

On June 22, 2005, the court found defendant guilty of the amended charges and found the enhancement allegation to be true. The following month it sentenced defendant

in accordance with the above-described agreement, imposing 25 years to life in state prison for the murder conviction, a consecutive state prison term of 10 years for the accompanying firearm enhancement allegation, and a consecutive, lower term sentence of five years in state prison for the attempted murder conviction.^[6] This appeal followed. ( 1237, subd. (a).)

Discussion

Defendant insists that he clearly, if disjointedly, invoked his right to counsel in . . . three successive assertions that followed his initial query concerning an attorney. Specifically, he stated: I thought about that . . . Lawyer . . . I just asked could one be present while we speak. He argues that statements made by Minahan and Castle after this invocationparticularly statements made by Castleconstituted a form of badgering intended to pressure him into waiving the right to counsel he had just invoked. It is essentially defendants position that such badgering was in clear violation of Edwards, supra, 451 U.S. 477, and effectively vitiated the renewed contact that led to the second [interview] in which [he] made his incriminating admissions. He accordingly reasons the trial court erred in denying his motion to suppress the incriminating admissions he afterwards made concerning his role in the Burlingame bank robbery, and that without these admissions his convictions for murder and for robbery of the Burlingame bank cannot stand.

The decision in Edwards and its progeny, hold that a suspect may not be interrogated once he or she has indicated a desire to consult with an attorney. Rather, . . .  the interrogation must cease until an attorney is present.   (People v. Sapp (2003) 31 Cal.4th 240, 266, citing Edwards, supra, 451 U.S. at p. 482.) If interrogation continues in violation of this rule, the suspects responses are presumptively involuntary and therefore inadmissible as substantive evidence at trial. (Edwards, supra, 451 U.S. at pp. 482, 487.) Such exclusion is not required, however, when the suspect personally initiates further communication, exchanges, or conversations with authorities. (Ibid.) Moreover, the rule that interrogation must cease because the suspect requested counsel does not apply if the request is equivocal. [T]he suspect must unambiguously request counsel. (Davis v. United States (1994) 512 U.S. 452, 459 (Davis).) To avoid difficulties of proof and to provide guidance to officers conducting custodial interrogations, courts employ an objective inquiry to determine whether a suspect has actually invoked his or her right to counsel. At a minimum, the suspect must make some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. But if the suspect makes a reference to an attorney that is ambiguous or equivocal, in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, questioning need not cease. A suspect must articulate his or her desire to have counsel present with sufficient clarity that a reasonable officer in the circumstances would understand the statement to be a request for an attorney. (Davis, supra, 512 U.S. at pp. 458-459.)

In reviewing defendants claim that the trial court erred in denying his motion to suppress, we utilize an independent standard of review insofar as the trial courts underlying decision entails a measurement of the facts against the law. (People v. Waidla (2000) 22 Cal.4th 690, 730.) As to the trial courts subordinate determinations, we examine independently the resolution of pure questions of law, and we scrutinize for substantial evidence the resolution of pure questions of fact. With respect to mixed questions of law and fact, we examine independently the resolution of those that are predominately legal, and scrutinize for substantial evidence those that are predominately factual. (Ibid.)

In this instance, we review independently the questions whether defendant unequivocally invoked his right to the presence of counsel and whether Minahan and Castle thereafter continued their custodial interrogation in violation of the rule in Edwards. The challenged colloquy was recorded^[7]and transcribed, and is consequently undisputed. We set out the transcription of that colloquy below, in its entirety.^[8]

Defendant: Is, uh, would I be like, would I be messing with you guys if I said could I get a lawyer present while we talk? Or, would you guys, how would you guys feel?

Minahan: Thats something we cant advise you on.

Castle: Would you like a minute to think about that? Thats up to you.

Minahan: We cant advise you on that.

Castle: We cant answer.

Minahan: The one thing I will tell you is, were just here to gather the facts. Were just here to interview.

Defendant: I want to help. I want to help.

Minahan: Then you know what. If you want to help, nows the time.

Defendant: Ill help. Yeah, okay.

Minahan: Okay.

Defendant: Can, can I have a lawyer? Would that be all right?

Minahan: We cant tell you whether its all right or thats your choice to make, man. Thats a question we cant answer for you. Well give you a minute to think about that, all right? You want a glass of water or something man? Nothing?

Defendant: No, I mean I thought about that.

Minahan: Thought about what?

Defendant: Thats not cool.

Minahan: What? You lost me, man.

Defendant: Lawyer?

Minahan: Are you telling me you dont want to talk to us without a lawyer? Is that what youre telling me now?

Defendant: I just asked could one be present while we speak.

Minahan: I guess Im asking you, this is kind of my way of answering that question, are you telling me you dont want to talk to us without a lawyer? Thats what youre saying?

Defendant: Would that make it any different?

Minahan: Okay, once you tell us that you dont want to talk to us without a lawyer, our conversation here tonight is done.

Castle: Yeah, the only way we can talk to you . . . .

Defendant: Can I still, like I speak with you guys.

Castle: The only way, now, you have to tell us that you dont want a lawyer and have to think about this and make the decision on your own. You have to tell us you dont want a lawyer and you do want to talk to us.

Defendant: Ive been talking to you guys already without a lawyer.

Castle: Right, you have.

Defendant: Thats what I . . . .

Castle: Okay, but now, now you said to [Minahan], I want to have a lawyer present. Now Im, now I am going to answer the next question. If you want to continue to talk to us, and well give you a minute to think about it. You give it some thought because we cant tell you what the answer to this question is. If you want to talk to us you need to say I have changed my mind and I dont want a lawyer, I want to continue the conversation. Okay? So what were going to do is were going to leave for a minute. If you want, do you want or do you want us to just like give you a little body space like this, you want to think about it but now you have to tell us if you want to talk to us. We cannot ask you again.

Defendant: See, if I dont talk to you guys, you guys are going to get me wrong. You know, I dont want to mess up, the, the way you see me. Cause that is, you know, the way I am. Best I can do, best I can do is tell you who the guys are, you know. If I can go get them and point them out or some information to get them, you know. I can, thats it. Thats all I can do.

Minahan: And the balls back here, you . . . .

Castle: The balls back in your court from what I told you. We cannot ask any more questions.

Minahan: I got to step out for a second anyway. [Minahan steps up to the locked door of the interview room.] If I can. Maybe I cant. [He knocks on the door and is let out.]

Defendant: You guys are so sure that Im one of the per, one of the people. What if, Im just speculating, you know, but Im not. So I dont want to say it, but what if theres a person that fit all those descriptions and it wasnt me? Or its just a fact.

Castle: We play fair. We play honest. We play by the rules. Okay? I told you what has to be done in order for us to talk to you further. I cannot talk to you about the case now. Unless you tell us, I want to talk to you about it, I dont want a lawyer here. And thats a decision for you to make.

Defendant: Youre making me feel like I need a lawyer. I dont want to do that. Yeah, I need a friend right now. I do need someone. Okay, let me ask you this, right? Say I get a lawyer present, is there anyway I can speak with you guys again?

Castle: Im not being evasive. Im trying, that could happen. Okay? I cant give you legal advice. Im not a lawyer. Okay. I cannot do that.

[Minahan reenters the interview room.]

Defendant: Okay. I do want to help, you know, but see the thing with the lawyer is I dont know, having just speaking with you guys, you guys been telling me a lot of things and I dont know what point, you know, were to a point, am I[] going to be incriminating myself or? I have no idea. I want to help. I want to help you guys but I feel like I need a lawyer present cause I just dont feel, I do want to talk to you guys again . . . .

Minahan: And thats the answer to the question.

Castle: The question was, and I told him I gotta be careful because I cant give legal advice, the question was if he gets a lawyer, can he talk to us again? And I gave him the big pause. And my reply basically is yeah that can happencause I dont think thats legal advice but were not telling you its going to happen, that would be between you and the attorney.

Defendant: Cause, uh, I look at you two like, I know you two are doing your job, right? But in the situation Im in, Im feeling you guys are friends, you know, you guys are trying to help me, but . . . .

Minahan: We cant tell you what you, if you tell us you dont want to talk to us anymore . . . .

Castle: Thats it.

Minahan: Thats it. And thats good, but thats we cant . . . .

Defendant: I could come talk to you again later, couldnt I?

Minahan: That would be between you and your attorney.

Defendant: Okay, I could tell my attorney I want to talk with you guys again later. Okay. Can I do that?

Minahan: I cant . . . .

Castle: See, were policemen. Okay? Were not the District Attorney and were not any attorney that might represent you. And what we have to be real careful of is we cannot give you legal advice. We cant, we cant tell you what to do. Okay? I mean, you basically heard the line we have for you . . . .

Defendant: Yes.

Castle: [T]ell the truth.

Defendant: Yes.

Castle: Okay. Thats our standard line. Tell the truth. We deal in truths. They work better for everybody. But when it gets down to whats right for you and whats good for you and what you have to do. Uh, what Im telling you is, were going to leave you, okay? Uh, if you decide, independent of us because youre a man, you think it over and you decide, you want [Minahan] and I to come back in here, then you tell one of these Mountain View policemen and if we decide, you know we come back in here, then you have to tell us that I on my own, have changed my mind and want to talk to you tonight. Okay? And we will no longer, we will not come back and knock on this door. We cannot. But you can knock on that door if you change your mind.

Minahan: We got to knock to get out.

Defendant: Thank you.

Castle: Take care of yourself, huh?

Defendant: Thank you.

Defendant concedes that his initial question, asking the interrogators how would [they] feel if he could get a lawyer present while we talk, was hardly an unambiguous invocation. Defendants second questionCan, can I have a lawyer? Would that be all right?is similarly equivocal, and in both instances Minahan and Castle responded by saying, in effect, that they could not advise him whether or not to invoke his right to counsel, because it was a decision he himself had to make.

In our view, the three successive assertions that defendant made shortly afterward were not so unequivocal as to render it objectively unreasonable for Minahan to conclude only that defendant might be invoking the right to counsel. (Davis, supra, 512 U.S. at p. 459.) Hence, it was reasonable for Minahan to respond by asking defendant, Are you telling me you dont want to talk to us without a lawyer? Furthermore, despite the fact that defendant gave no direct answer to this question, it is apparent that, at that point, both Minahan and Castle recognized that defendants cumulative questions and comments were a sufficiently clear invocation of his right to counsel to require that they cease their interrogation. Thus, Minahan stated, once you tell us that you dont want to talk to us without a lawyer, our conversation here tonight is done. Castle said soon afterward, We cannot ask any more questions.

In the conversation that followed, up to the moment Minahan and Castle left the interview room, neither posed any question concerning defendants role in the Burlingame bank robbery. Neither, in other words, continued the custodial interrogation. Their comments were chiefly limited to repeated statements that effectively informed defendant that any continued conversation concerning the bank robbery would take place only if defendant initiated that conversation by stating that he wanted to talk with them and had decided to do so without an attorney present.

We reject defendants suggestion that Minahan and Castle went on to badger defendant into waiving his right to counsel, or to mislead him into doing so by suggesting that his only options were to speak with them without a lawyer or not speak to them at all. When defendant asked whether he could resume their conversation in the presence of an attorney, Castle responded by saying, Im not being evasive . . . that could happen . . . were not telling you its going to happen, that would be between you and the attorney.

We similarly reject defendants contention that the statements by Castle we have italicized above constituted an improper ultimatum or exhortation to waive his right to counsel. (See fn. 8, ante.) In context, these statements were no more than repeated explanations that it was up to defendant to decide whether to resume their conversation without a lawyer present. Castles additional comments, encouraging defendant to tell the truth . . . because youre a man, do not amount to improper coercion. (Cf. People v. Nicholas (1980) 112 Cal.App.3d 249, 265.)

Based on our independent review including a review of the videotape of the interrogations, we conclude that Minahan and Castle did not improperly continue to interrogate defendant once he had clearly invoked his right to counsel. Almost five hours separated the interrogations. Defendant explained that he changed his mind and did want to talk further without an attorney. We further conclude that substantial evidence supports the trial courts implied finding that it was defendant, and not Hutchings, who initiated the contact with authorities and expressed his desire to speak further with Minahan and Castle without the presence of an attorney. The trial court, in sum, did not err when it denied defendants motion to suppress.

Disposition

The judgment is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Stein, J.

______________________

Swager, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

^[1]Further statutory references are to the Penal Code. References to rules are to the California Rules of Court.

^[2]We have drawn this summary of events from the exhibits and transcripts submitted during the guilt phase of defendants trial.

^[3]Miranda, supra, 384 U.S. 436.

^[4]The resolution by the trier of fact, in this instance the trial court, of credibility issues and conflicts in the evidence are, of course, determinations a reviewing court cannot disturb. (People v. Young (2005) 34 Cal.4th 1149, 1181.)

^[5]A slow plea is an agreed-upon disposition . . . which does not require the defendant to admit guilt but results in a finding of guilt on an anticipated charge and, usually, for a promised punishment. (People v. Tran (1984) 152 Cal.App.3d 680, 683, fn. 2.) Such a plea usually involves a submission of the guilt phase to the [trial] court on the basis of the preliminary hearing transcripts [and is] tantamount to a plea of guilty because guilt is apparent on the face of the transcripts and conviction is a foregone conclusion if no defense if offered. (People v. Sanchez (1995) 12 Cal.4th 1, 28.)

^[6]The court also imposed three-year midterm determinate sentences, for each of the two robbery convictions, to run concurrently with the five-year sentence for attempted murder.

^[7]Although the videotaped recording admitted at the hearing on defendants motion to suppress was not included in the record on appeal, we directed the transmission of that recording to this court. (See Cal. Rules of Court, rules 8.224(d), 8.320(e).) We have accordingly reviewed the recording carefully in addition to our review of its transcription.

^[8]We have italicized the three successive assertions that defendant has described as a clear[], if disjointed[] invocation of this right to counsel. We have also italicized those statements made by Castle, which defendant characterizes as an improper ultimatum and an all but explicit exhortation to [defendant] to waive his previously asserted right to counsel.