Filed
5/29/13 P. v.
Keller CA4/2
NOT TO BE PUBLISHED IN OFFICIAL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
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IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
EDWARD GEORGE
KELLER, JR.,
Defendant and Appellant.
E054119
(Super.Ct.No.
SICRF 09-49493)
OPINION
APPEAL
from the Superior Court of
Nancy
L. Tetreault, 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, Barry Carlton and Karl
T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant, Edward George Keller, Jr. (defendant), appeals from the judgment
entered after a jury found him guilty of second
degree murder, as a lesser included offense of the charged crime of first
degree murder, found true the allegation that he personally used a deadly
weapon in the commission of the crime, and the trial court sentenced him to
serve a determinate term of one year in state prison, followed by an
indeterminate term of 15 years to life.
Defendant
raises two claims of error in this appeal.
First, he contends his confession to the police was obtained in
violation of Miranda v. Arizona
(1966) 384 U.S. 436 (Miranda) because the prosecution did not show that defendant
voluntarily waived his right to remain silent and his right to have his
attorney present. Therefore, defendant
contends the trial court should have granted his motion to exclude that
confession from evidence. Defendant’s
second claim of error is that several jurors engaged in prejudicial misconduct
by commenting during the jury’s deliberations on the fact that defendant had
not testified at trial and, therefore, the trial court erred in denying defendant’s
motion for a new trial based on that misconduct.
We
will affirm the judgment because we conclude no error occurred.
The
pertinent facts are undisputed. On the
evening of November 26, 2009, Jimmy Williams was
bludgeoned to death with an object referred to in the trial court as a “weight
bar.†The issue at trial was the
identity of the killer. The crime took
place in the living room of the home where defendant, then 17 years old, lived
with his mother and other family members.
Defendant, along with Williams, Morgan “Jake†Kinney, and various other
people had been drinking beer, rum, and peppermint schnapps over the course of several
hours. An argument apparently arose
about whether Williams was mistreating Kinney, who appeared to be suffering an
alcohol induced seizure.
Shortly after 10:00
p.m.,
Brenda Allen, who was Williams’s girlfriend, was standing outside the front
door of defendant’s house, waiting for someone to open the door in response to
her knock. While waiting, Allen heard
what she described as a “hitting noise,†then she heard defendant’s sisters
say, “Stop Eddie, don’t, don’t, Eddie, stop.â€
She also heard a male voice say, “No, Eddie, no, oh, Eddie.†When the door opened, defendant ran out of
the house and down the driveway. Allen
ran to Williams when she spotted him lying on the floor with blood running from
his head. She screamed for someone to
call 911.
When law enforcement officers arrived, they
found Williams and Kinney lying near each other on the floor. Williams had blood coming from his head and
mouth. He had no pulse. Kinney was conscious but yelling
incoherently. He had blood spatters on
his shirt, which along with the weight bar found near him, caused officers to
suspect Kinney had killed Williams.
Outside, Officer Gillespie
was setting up a perimeter around the house.
When he directed the beam of his flashlight on an area of high weeds,
defendant stood up and came out from where he had been hiding. In response to Officer Gillespie asking what
defendant was doing, defendant said he lived in the house but that he had left
about 30 minutes earlier. Defendant also
said he knew what had happened but he was not going to say. Officer Gillespie took defendant to Deputy
Rennie. Defendant admitted to Deputy
Rennie that he was drunk. He then became
aggressive and started to scream incomprehensibly. As a result, the deputy arrested defendant
for being intoxicated in public, which was a violation of defendant’s juvenile
probation. Deputy Rennie tried to talk
with defendant again, at the police station, but defendant told her he did not
want to talk. When interviewed by two
sheriff’s deputies on December 1, 2009, defendant admitted he had hit Williams
with the weight bar.
Additional facts will be
recounted below as pertinent to the issues defendant raises on appeal.
Inyo
County Sheriff’s deputies, Sergeant Hollowell and Investigator Williams,
interviewed defendant on November 27, 2009, in juvenile hall, after defendant’s
arrest for violating his probation, and also on December 1, before defendant’s
first court appearance on that violation.
Investigator Williams recorded the audio portion of both interviews
using a microphone concealed in his jacket.
Before the first interview, Investigator Williams advised defendant of
his Miranda rights, i.e., the right
to remain silent, the fact that anything defendant said could be used against
him, the right to have an attorney present, and the right to have an appointed
attorney if he could not afford one.
Defendant acknowledged he understood each of those rights. Defendant then answered the deputies’
questions, and identified Kinney as the person who hit Williams with the weight
bar. Before the second interview, on
December 1, the deputies again advised defendant of his Miranda rights, and defendant again acknowledged that he understood
those rights. Defendant then answered
the deputies’ questions, providing more details about what had happened on the
night of November 26. Eventually,
Sergeant Hollowell told defendant that his story did not add up, and then
asked, “Why’d you hit him? Eddy, was it
because he was beating up Jake? What was
it?†Defendant then admitted he beat
Williams because Williams was “beating up Jake,†“punching the shit out of
him. He was kicking him, he was punching
him.â€
At his preliminary hearing,
defendant moved to exclude the statements he had made to Sergeant Hollowell and
Investigator Williams. Defendant argued
that although he had been advised of his rights under Miranda, he did not fully understand those rights, did not
expressly waive them and, in any event, the law enforcement officers who
questioned him knew defendant was represented by counsel so, at the very least,
they obtained defendant’s statement in violation of his constitutional right to
counsel.
After a hearing at which
defendant presented various witnesses, the trial court denied defendant’s
motion to suppress his confession. In
doing so, the trial court found that before both interviews, defendant was
advised of each of his Miranda
rights, defendant acknowledged he understood each of those rights, and he
impliedly waived those rights, as evidenced by the fact that after the advisements,
defendant answered the deputies’ questions.
The trial court also found that defendant voluntarily spoke with the
deputies, and that his statements were not the result of coercion. In addition, the trial court found that the
deputies did not violate defendant’s Sixth Amendment right to counsel because
defendant was represented by counsel in the violation of probation matter,
based on his public intoxication, and the deputies did not question him about
that case. Questioning defendant about
the uncharged homicide did not violate defendant’s right to counsel.
Defendant contends in this
appeal that the trial court incorrectly admitted defendant’s statements into
evidence at trial.
On
appeal, we review “issues relating to the suppression of statements made during
a custodial interrogation . . . under federal constitutional standards.†(People
v. Nelson (2012) 53 Cal.4th 367, 374 (Nelson).) In reviewing the trial court’s ruling on a
court’s resolution of disputed facts, if it is supported by substantial
evidence; but we independently determine from the facts, both undisputed and as
resolved by the trial court, whether the challenged statement or confession was
obtained illegally. (
829.)
“‘“[U]nder
the familiar requirements of Miranda,
. . . a suspect may not be subjected to custodial interrogation unless he or
she knowingly and intelligently has waived the right to remain silent, to the presence
of an attorney, and to appointed counsel in the event the suspect is
indigent.â€â€™ [Citations.]†(People
v. Samayoa, supra, 15 Cal.4th at
p. 829.)
Defendant contends in this
appeal, as he did in the trial court, that he did not lawfully waive his
fact that he answered questions after being advised of those rights. An express waiver is not required, even when
the suspect is a minor. (
1169.) “To establish a valid waiver of
show by a preponderance of the evidence that the waiver was knowing,
intelligent, and voluntary.
[Citations.]†(
“Determining the validity of a Miranda
rights waiver requires ‘an evaluation of the defendant’s state of mind’
[citation] and ‘inquiry into all the circumstances surrounding the
interrogation’ [citation]. When a
juvenile’s waiver is at issue, consideration must be given to factors such as
‘the juvenile’s age, experience, education, background, and intelligence, and .
. . whether he has the capacity to understand the warnings given him, the
nature of his Fifth Amendment rights, and the consequences of waiving those
rights.’†(Id. at p. 375, quoting Fare
v. Michael C. (1979) 442 U.S. 707, 725.)
The
facts in this case are undisputed. Both
times sheriff’s deputies questioned defendant, they advised him of his
he understood those rights, and then answered the deputies’ questions. Defendant was 17 years old at the time
of the questioning and had a record as a juvenile, which included a matter for
which he then was on probation.
Defendant understood the meaning of the right to remain silent as
evidenced by the fact that on November 26, 2009, after his arrest, he told
Deputy Rennie he did not want to talk to her when she tried to question him a
second time. As a result of his prior
juvenile court matter, in which he was represented by a court-appointed
attorney, defendant knew the meaning of the right to counsel, but he did not
invoke that right. Defendant did not ask
to talk with an attorney even when the attorney representing him in connection
with the violation of probation came to the door of the room where the deputies
were conducting the second interrogation and asked to talk with defendant.
Defendant
would have us conclude that he did not knowingly waive his Miranda rights because he had spent much of his youth in juvenile
detention facilities, a fact he contends supports the reasonable inference that
“he had less than an optimal education.â€
The cited fact does not support the claimed inference. It is just as likely that defendant obtained
an adequate education in juvenile detention.
But even if defendant’s education had been less than “optimal,†as he
claims, that assertion is far too amorphous to support an inference that
defendant did not knowingly, intelligently, and voluntarily waive his
first interrogation, he was feeling ill from his consumption of alcohol the
previous night. That fact does not
support the further inference that the residual effects of his alcohol
consumption precluded him from knowingly, intelligently, and voluntarily
waiving his Miranda rights during the
first interrogation.
Defendant
also contends the deputies violated his Sixth Amendment right to counsel
because they excluded his attorney and family from the second interrogation. As defendant acknowledges, the right to
counsel is offense specific. (See
175.) This is true, even when two
offenses are factually related. (See
1076, 1079-1080, citing Texas v. Cobb
(2001) 532 U.S. 162.) When the deputies
interrogated defendant about the homicide, defendant was not represented by an
attorney in connection with that crime because defendant had not been charged
with that offense. Therefore, defendant
had to invoke his right to counsel in order to terminate the
interrogation. Because defendant was not
represented by an attorney in connection with the homicide, the deputies did
not violate defendant’s constitutional right to counsel when they told his attorney
on the probation violation that they were questioning defendant on an unrelated
matter. Nor were the deputies obligated
to notify defendant’s parents in order for defendant to validly waive his
supra, 53 Cal.4th at p. 375.)
In
short, we conclude the prosecution met its burden of demonstrating that
defendant knowingly, intelligently, and voluntarily waived his
have an attorney present when questioned.
The trial court further correctly concluded that defendant’s Sixth
Amendment right to counsel was not violated in this case. Consequently, we must conclude the trial
court correctly denied defendant’s motion to exclude the statements he made to
Sergeant Hollowell and Investigator Williams.
Defendant
contends several jurors engaged in misconduct during their deliberations
because they considered the fact that defendant did not testify at trial in
reaching their guilty verdict. Defendant
raised this issue in a motion for new trial, which the trial court denied. Defendant contends in this appeal that the
trial court erred in denying his new trial motion.
“In
resolving a question of whether jury misconduct occurred, we ‘accept the trial
court’s credibility determinations and findings on questions of historical fact
if supported by substantial evidence.’
[Citation.] Juror misconduct
raises a rebuttable presumption of prejudice.
The presumption may be rebutted by proof that prejudice did not actually
result.†(People v. Mendoza (2000) 24 Cal.4th 130, 195.)
“Ultimately,
the test for determining whether juror misconduct likely resulted in actual
bias is ‘different from, and indeed less tolerant than,’ normal harmless error
analysis. [Citations.] If the record shows a substantial likelihood
that even one juror ‘was impermissibly influenced to the defendant’s detriment,’
reversal is required regardless of whether the court is convinced an unbiased
jury would have reached the same result.
[Citations.]†(
475, 488.)
Defendant
based his new trial motion on declarations obtained from three trial
jurors. The prosecutor submitted
declarations obtained from seven jurors, three of whom were the same jurors who
had provided declarations to defendant.
One of the declarations submitted by the prosecutor was not signed under
penalty of perjury, and the trial court found that declaration to be inadmissible.
The nine admissible
declarations establish that early in their deliberations, either in the jury
deliberation room, or possibly during a break, at least one juror “discussed
the fact that [defendant] did not testify.
Several jurors made statements to the effect that they would have been
‘on the stand’ in a case such as this.â€
Another juror said that while one juror had made a comment to that
effect, “[s]ome other jurors shook their heads . . . and said, ‘Oh yeah, me
too, I would have done it for sure.’â€
Other members of the jury reminded the group that they were not to
discuss the fact that defendant did not testify. In one declaration, a juror stated that
not only did several jurors discuss the fact that defendant had not testified,
they also said that fact “caused them to believe that he was guilty.†In a second declaration submitted as part of
the prosecutor’s opposition filing, that same juror clarified that only one
other juror had made a comment regarding defendant’s guilt, something like, “‘I
do feel like he’s first degree murder because, since, he didn’t want to testify
at all,’ or words similar to that.â€
this made the defendant more guilty or less guilty, or anything along those
lines.†The topic only came up once.
The trial court found that
if some jurors actually discussed the fact that defendant had not testified,
that discussion was brief and immediately followed by other jurors reminding
the group not to consider that fact in their deliberations. Only one juror reportedly stated that
defendant’s failure to testify inclined that juror to believe defendant was
guilty of first degree murder. However,
the ultimate verdict was second degree murder.
Therefore, the trial court found that no misconduct had occurred. Even if the jury engaged in misconduct, the
trial court further found that the prosecution met its burden of proving the
misconduct was not prejudicial because there was no “substantial likelihood
that any juror was improperly influenced in reaching a verdict in the case.â€
Defendant contends the trial
court’s analysis was erroneous because defendant’s failure to testify affected
the verdict of at least one juror, namely Juror No. 4, who reputedly stated
defendant’s failure to explain his conduct made that juror believe defendant
was guilty of first degree murder. We
agree the jury engaged in misconduct.
“‘[B]y violating the trial
court’s instruction not to discuss defendant’s failure to testify, the jury
committed misconduct. [Citations.] This misconduct gives rise to a presumption
of prejudice, which “may be rebutted . . . by a reviewing court’s
determination, upon examining the entire record, that there is no substantial
likelihood that the complaining party suffered actual harm.†[Citations.]’
[Citation.] We independently
review the trial court’s determination that defendant was not prejudiced
by the improper comments.
[Citation.]†(
749 (Loker).)
In Loker, jurors discussed the defendant’s failure to testify at the
penalty phase of his trial. When the
comments were made, another Loker
juror responded that the defendant not testifying could not be considered in
their deliberations. The jury foreperson
in Loker also admonished the jurors
that the defendant “‘had a legal right not to testify and it should not be held
for or against him; that it should not be considered one way or the other. That was the end of it.’†(Loker,
supra, 44 Cal.4th at p. 748.)
In upholding the trial
court’s ruling that the misconduct was not prejudicial, the court stated, “It
is natural for jurors to wonder about a defendant’s absence from the witness
stand. [Citation.] The . . . declarations show that the comments
on this subject were brief and played no role in the jury’s . . .
deliberations. ‘[T]he purpose of the
rule prohibiting jury discussion of a defendant’s failure to testify is to
prevent the jury from drawing adverse inferences against the defendant, in
violation of the constitutional right not to incriminate oneself.’ [Citation.]â€
(Loker, supra, 44 Cal.4th at p. 749.)
In this case, as in Loker,
“[e]ven if some comments disclosed in the . . . declarations might have given
rise to inferences adverse to defendant, the foreperson promptly forestalled
that possibility . . . . Under these
circumstances, the purpose of the rule against commenting on defendant’s
failure to testify was served, and the presumption of prejudice is
rebutted.†(Ibid.)
Although the record in this
case shows that Juror No. 4 did consider the fact that defendant had not
testified as evidence suggesting defendant was guilty of first degree murder,
the record also shows the juror was not impermissibly influenced because
ultimately the jury unanimously agreed and found defendant guilty of second
degree murder.
For the reasons discussed,
we conclude that the prosecutor rebutted the presumption of prejudice in this
case. Therefore, the trial court
correctly denied defendant’s motion for new trial.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] By the time defendant’s sister tried to
deliver the message that defendant should not say anything without an attorney
or his parents present, defendant had already confessed to the homicide.
name="_ftn2" title=""> [2] In this second declaration, the juror who
made the comment was identified as Juror No. 4.
