People v. Hogan

KAUS, J.

— I concur in the result. Although I do not be lieve that the offers of police help for Hogan’s psychiatric problems amounted to an implied promise of leniency, nevertheless the repeated references to his possible mental difficulties form an essential part of the background which leads me to believe that the admitted police deception which preceded Hogan’s incriminatory statements was “of a type reasonably likely to procure an untrue statement.” (In re Walker (1974) 10 Cal.3d 764, 777-778 [ 112 Cal.Rptr. 177 , 518 P.2d 1129 ].)

Before explaining my reasoning, several points outlining and defining the framework of the relevant inquiry should be made.

First: once the “historical” facts are reliably determined by the trial court, the question whether the deception is of the kind which invalidates a confession is one of law. (Haynes v. Washington (1963) 373 U.S. 503, 515-516 [ 10 L.Ed.2d 513, 521-522 , 83 S.Ct. 1336 ]; Culombe v. Connecticut (1961) 367 U.S. 568, 602 [ 6 L.Ed.2d 1037, 1057 , 81 S.Ct. 1860 ]; People v. Jimenez (1978) 21 Cal.3d 595, 609 [ 147 Cal. Rptr. 172 , 580 P.2d 672 ].) Thus, I am willing to assume in favor of the trial court’s ruling that it found on substantial evidence that Officer Clendenon did not say, as Officer Orman recalled, that the girls had seen Hogan commit the homicide, but that he merely said that the girls had seen him hitting Jeremy. It does not really matter — either version was admittedly false.

Second: to determine whether police deception is of the kind that is reasonably likely to trigger a false confession, one must, of course, evaluate the deception’s probable effect on a person who is, in fact, not guilty. Otherwise a false confession is a rational impossibility.

*856 Third: the very nature of the test assumes that there are certain deceptive practices which under certain circumstances will cause certain persons to confess falsely: thus it simply will not do to say — as one may be tempted — that there can be no lie which would cause one to make a false confession to a crime as grave as murder.

Fourth: the question — what lie will trigger a false confession — cannot be answered in the abstract. A lie which may provoke nothing but a contemptuous smile on the part of a seasoned criminal may have a devastating effect on an emotionally overwrought individual, with no reservoir of psychological strengths, who has never been in serious trouble with the law. 1 Thus, among many other factors, we must consider the nature of the crime, the suspect’s admitted relation to it, his personality in general, relevant character traits in particular, the nature and course of the interrogation apart from the deception — in short, the totality of circumstances.

Fifth: in determining whether the deception was of the kind which was reasonably likely to trigger a false confession, we must of necessity perform a task for which we are not particularly well equipped — the determination how another person, whom we know only through the pages of an appellate record, was likely to act under certain stressful circumstances which none of us has ever experienced. Inevitably this exposes one to the charge of being a “parlor shrink.” Yet this is precisely the kind of determination which courts are constitutionally bound to make and do make in case after case involving a claim that a confession was involuntary. As the United States Supreme Court pointed out in Haynes v. Washington, supra, 373 U.S. at page 515 [ 10 L.Ed.2d at page 521 ]: “[W]e cannot escape the demands of judging or of making the difficult appraisals inherent in determining whether constitutional rights have been violated.”

Sixth: since in this particular area it does matter whether the police conduct is likely to beget a false confession (cf. Rogers v. Richmond (1961) 365 U.S. 534, 543-545 [ 5 L.Ed.2d 760, 767-769 , 81 S.Ct. 735 ]; People v. Ditson (1962) 57 Cal.2d 415, 437-438 [ 20 Cal.Rptr. 165 , 369 P.2d 714 ]), it seems legitimate to consider just what type of confession follows the deception. Quite apart from the obvious fact that a confes *857 sion which is independently verifiable is more likely to be true than one which is difficult to reconcile with established facts, it seems to me to be important whether a confession is in rational form or whether it consists of a series of emotional outbursts and explosions and — most vitally — whether it touches upon the main points to which a reliable confession would inevitably refer.

These preliminaries out of the way, I am bound to conclude that the admitted deception was of such a nature as to undermine the reliability of Hogan’s confession or — more accurately — that the People have not established its validity beyond a reasonable doubt. 2

The tapes of Hogan’s interrogations and of his conversations with his wife Carolyn reveal him as a weak person, conscious that he has been a failure as a husband, father and provider and very much under the thumb of Carolyn, who displays incredible coolness, strength and clarity of purpose while her world is collapsing around her. In his conversations with Carolyn, Hogan appears to feel that his being arrested for murder is just one more instance of his ineffectiveness as a human being. At the same time there is nothing in his background which suggests any contact with the type of violence which he encountered in the Holland residence. If he was innocent — as we must assume — the sight of the dead Theresa with the gravely injured Adam beside her must have had a cataclysmic effect on his mind. The scene is utterly senseless, yet the very fact that he is alone and observes it suggests some kind of connection.

This totally unprecedented shock is followed by his encounter with Holland, the attempted flight, his arrest, incarceration, and a series of police interrogations. The record clearly shows that during these sessions the police firmly planted in his mind the suspicion that he was “crazy.” Perhaps he was, in some fashion, responsible for the pitiful *858 scene he had witnessed — a scene calculated to trigger guilt feelings in the most innocent spectator. 3 These vague feelings of some kind of responsibility are then confirmed by the information that, indeed, there were witnesses of his having done something which he has no recollection of having done. Was he really crazy? Why would he have done such a thing? He had no reason to kill Theresa, hurt Adam, or hit Jeremy. Significantly, it was not until the police supplied him with a motive of sorts — the robbery of $40 — that Hogan literally exploded into admitting that he had hit Theresa and the “little baby.”

I have carefully listened to the tape of the interrogation of this “confession” which, in truth, is more like a series of emotional outbursts than a coherent description of the recollection of a past event. The most remarkable aspect of it, however, is that it fails to make any reference whatever to an event which would have been uppermost in the mind of a guilty person: the murder of Jeremy. It is as if the only victims had been Theresa and Adam, the “little baby.” Nor is there any reference to Jeremy in any of Hogan’s less emotional statements which followed the third police interrogation. 4 I find it impossible to believe that a person who wants to unburden his soul by confessing to a crime or crimes he has actually committed would say nothing about one of two homicides.

In sum: not only were the circumstances such that the police deception was likely to provoke a false confession, but in addition the confession itself — or, rather, its shortcomings — reveal most persuasively that it was, indeed, not a reliable “product of a rational intellect and a free will.” (Blackburn v. Alabama (1960) 361 U.S. 199, 208 [ 4 L.Ed.2d *859 242, 249 , 80 S.Ct. 274 ]; In re Cameron (1968) 68 Cal.2d 487, 498 [ 67 Cal.Rptr. 529 , 439 P.2d 633 ].) It should have been suppressed. 5

Newman, J., concurred.

White, Police Trickery In Inducing Confessions (1979) 127 U.Pa.L.Rev. 581, 586: “Trickery that is relatively innocent in one context might have a devastating effect on certain suspects when employed in a different setting.”

The law is murky on the question whether a confession provoked only by deception which is of a nature likely to procure an untrue statement is classified as “involuntary.” It is, of course, well established that deception generally may be one of the factors which renders a confession involuntary. (Spano v. New York (1959) 360 U.S. 315, 323 [ 3 L.Ed.2d 1265, 1271 , 79 S.Ct. 1202 ].) In any event, our holding in People v. Jimenez, supra, 21 Cal.3d 595, 606-608 [ 147 Cal.Rptr. 172 580 P.2d 672 ] that the People must prove the admissibility of a confession by proof that convinces beyond a reasonable doubt was in considerable part based on the consideration that this strict rule decreased the possibility that a false confession would be admitted. (Id., at p. 607.)

In his book The Broken Connection (1979), Dr. Robert Jay Lifton .describes a psychological phenomenon which he calls “death guilt”: “I came to call this kind of memory an image of ultimate horror, one involving the dead or dying in a way that evokes the survivor’s strongest identification and feelings of pity and self-condemnation. Such imagery tended to involve either people who had been very close to the survivor, or else those (such as children or sometimes women or older people) who are looked upon as most vulnerable and helpless. The image of ultimate horror can symbolize the entire death-saturated event, its horror and pity as well as the survivor’s sense of debt and responsibility to the dead. That debt to the dead contains the survivor’s unanswerable inner question, ‘Why did I survive while he, she, they died?’ and is the essence of death guilt.” (Pp. 142-143.)

In fact, the only mention of Jeremy in any of the interrogations comes in Officer Clendenon’s disputed statement that the girls had seen Hogan hit Jeremy. One additional reason why, as the majority opinion suggests, it is far more probable that Officer Orman’s version of Clendenon’s statement is correct, is the total absence of any reference to Jeremy in any of the questions and answers that followed.

Because the erroneous admission of defendant’s confession requires reversal, it is unnecessary in my view to determine whether the trial court’s errors with respect to the deleted portion of the tape recording were in themselves sufficiently prejudicial to require a retrial; for that reason I do not join parts III and IV of the court’s opinion. With respect to part V, I agree that defendant is not entitled to a dismissal or other relief under Hitch and that the trial court erred in permitting Kyle to testify as an expert on “blood spattering” and in admitting the evidence of defendant’s debts.