# People v. Sims > California Supreme Court · June 28, 1993 · 5 Cal. 4th 405 URL: https://www.frixlaw.com/law-library/cases/9580186 ## Case - **Full name:** The PEOPLE, Plaintiff and Respondent, v. MITCHELL CARLTON SIMS, Defendant and Appellant - **Court:** California Supreme Court - **Decided:** June 28, 1993 - **Citations:** 5 Cal. 4th 405; 20 Cal. Rptr. 2d 537; 93 Daily Journal DAR 8252; 853 P.2d 992; 93 Cal. Daily Op. Serv. 4925; 1993 Cal. LEXIS 3086 - **Precedential status:** Published - **Opinion:** Concurring in part by Kennard - **Judges:** George, Kennard, Mosk - **Cited by:** 224 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by People v. Storm, 124 Cal. Rptr. 2d 110 (2002). - Negative treatments: 1 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9580186 ## How later opinions describe it (automated extraction) - holding that the “defendant’s remark in the present case—asking the police officers what was going to happen to him with reference to extradition—cannot, in itself, properly be construed as constituting a waiver of previously invoked rights” - noting the "trial court erred in suggesting that it lacked authority to order the reading back of defense counsel's closing summation," but concluding the error was not prejudicial ## Opinion text KENNARD, J., Concurring and Dissenting. I concur in the judgment and in the reasoning of the majority opinion, except on the points mentioned here. I. Alleged Miranda Violations A. The December 25 Confession On December 25, 1985, while defendant was in custody in Las Vegas, Nevada, Glendale Police Officers Perkins and Montecuollo came to interview him at the jail. Perkins began the interview by stating that he and Montecuollo were investigating a murder committed in Glendale. Perkins then advised defendant of his rights as required by Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ], When defendant invoked his right to counsel, the officers stood up and gathered their papers, preparing to leave. Defendant then asked “what was going to happen from this point on” and asked specifically whether he would be extradited to South Carolina (where another murder charge was pending against him) or to California. Perkins said they would attempt to extradite him to California. Perkins explained that he had been present in the Glendale motel room in which the victim had been found and that he had reason to believe that defendant and a female companion had occupied that room. “I had to kill that boy,” said defendant. “What did you say?” asked Perkins. “I had to kill that boy,” defendant repeated. Perkins described how the victim had been found in a bathtub bound and gagged and said the victim “did not have to die in this manner and could have been left there tied and gagged.” *468 “The boy would have identified me,” said defendant. Perkins then terminated the interview and instructed defendant that he would have to initiate any further contact. The controlling legal principles are not in doubt. When an accused invokes the right to counsel after a Miranda advisement, the police must immediately cease interrogation, which can resume in the absence of an attorney only if (1) the accused initiates the conversation, and (2) the circumstances indicate that the accused has made a knowing and intelligent waiver of the right to counsel. (Oregon v. Bradshaw (1983) 462 U.S. 1039 [ 77 L.Ed.2d 405 , 103 S.Ct. 2830 ] [hereafter Bradshaw]; Edwards v. Arizona (1981) 451 U.S. 477 [ 68 L.Ed.2d 378 , 101 S.Ct. 1880 ] [hereafter Edwards].) I am persuaded that the evidence in this case establishes compliance with both requirements. The leading case on the first requirement—that the suspect initiate the conversation—is Bradshaw, supra, 462 U.S. 1039 . There, the defendant, after invoking his right to counsel, asked the police officer who was escorting him: “ ‘Well, what is going to happen to me now?’ ” (Id. at p. 1042 [ 77 L.Ed.2d at p. 410 ].) The lead opinion by Justice Rehnquist (for four members 1 of the United States Supreme Court) concluded that by this question the defendant had initiated a conversation because the question “evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship.” (Id. at pp. 1045-1046 [71 L.Ed.2d at pp. 412-413].) Here, defendant’s question (“what [is] going to happen from this point on[?]”) was almost identical to the statement in Bradshaw (“ ‘what is going to happen to me now?’ ”). Federal courts have found similar remarks to be sufficient to satisfy the initiation requirement. (See, e.g., Henderson v. Dugger (11th Cir. 1991) 925 F.2d 1309, 1312-1313 , cert. den. _ U.S. _ [ 121 L.Ed.2d 554 , 113 S.Ct. 621 ] [suspect asked “what was going to happen next”]; U.S. v. Velasquez (3d Cir. 1989) 885 F.2d 1076, 1085-1086 [“ ‘What is going to happen?’ ”].) Defendant’s question was not merely a request for a drink of water or use of a telephone, which are the examples that the Bradshaw lead opinion gives of a “necessary inquiry arising out of the custodial relationship.” ( Bradshaw, supra, 462 U.S. 1039, 1045-1046 [ 77 L.Ed.2d 405, 412-413 ].) Indeed, it is doubtful that any custodial relationship existed between defendant, a prisoner in a Nevada jail, and the California police officers seeking to extradite him. A defendant’s inquiries about *469 extradition have been held to constitute initiation. (State v. Lionberg (R.I. 1987) 533 A.2d 1172, 1177 .) I conclude that defendant initiated further conversation with the officers. To establish the second requirement—a waiver of the previously asserted right to counsel—it is not necessary that the suspect be readvised of the right or that the suspect waive it expressly. (See U.S. v. Montana (2d Cir. 1992) 958 F.2d 516, 519 ; Jacobs v. Singletary (11th Cir. 1992) 952 F.2d 1282, 1295 ; Moore v. Dugger (11th Cir. 1988) 856 F.2d 129, 134 .) Rather, waiver may be implied from the totality of the surrounding circumstances. (See North Carolina v. Butler (1979) 441 U.S. 369, 373 [ 60 L.Ed.2d 286, 292 , 99 S.Ct. 1755 ]; U.S. v. Velasquez, supra, 885 F.2d 1076, 1087-1089 .) Here, defendant had just been advised of his rights and had asserted his right to counsel, thereby indicating he understood his interrogation rights and how to invoke them. The officers, by immediately preparing to leave, had demonstrated that they would honor the invocation. Although it was the officer, not defendant, who directed the conversation to the facts of the offense after defendant had initiated further general conversation, this is “not the crucial question” under Bradshaw, supra, 462 U.S. 1039 . (People v. Mattson (1990) 50 Cal.3d 826, 862, fn. 21 [ 268 Cal.Rptr. 802 , 789 P.2d 983 ].) Defendant’s incriminating statements were not the product of threats or promises, nor was defendant ill-treated. Under these circumstances, it is reasonable to infer that defendant made a knowing, intelligent, and voluntary waiver of his right to the presence of an attorney. Because the trial record establishes compliance with both requirements of Edwards, supra, 451 U.S. 477, defendant’s December 25 confession was properly received in evidence. B. The December 26 Statements On December 26, 1985, defendant asked to speak to Perkins and Montecuollo. They arrived at defendant’s cell with a tape recorder concealed in an accordion file. Defendant said he wanted cigarettes and wanted to talk to Padgett. He complained that the jail authorities treated him as suicidal. Perkins asked defendant if he was going to commit suicide. Defendant said no. Perkins remarked that defendant didn’t “seem like that kind of guy.” “I’m not, I’m not a murderer either,” said defendant. “What does that mean?” asked Perkins. “That means that I just got drunk, and I didn’t know what the fuck I was, I knew I was doing it, but I shouldn’t of done it,” said defendant. *470 After some further discussion about extradition, defendant said he wanted to exonerate Padgett. Perkins gave the Miranda advisement again and defendant expressly waived his interrogation rights. Perkins brought out the tape recorder and pretended to turn it on (it had been recording all along). Defendant described some of his acts preceding the Glendale crimes but again invoked his right to counsel without describing the crimes themselves. By requesting to meet with the officers, defendant initiated a generalized conversation, thus satisfying the first requirement of Edwards, supra, 451 U.S. 477 . Again, no threats or promises were made to defendant, nor was he mistreated. On this occasion, it was defendant who first alluded to the facts of the Glendale crimes. When asked to waive his Miranda rights expressly, defendant did so without hesitation. The record thus establishes that defendant made a knowing, intelligent, and voluntary waiver of his Miranda rights. The incriminating statements defendant made on December 26 were properly received in evidence. II. Seizure of the Gun Las Vegas police arrested defendant and Padgett in their motel room. After handcuffing and searching defendant, the police gave defendant a Miranda advisement, and defendant said he understood his rights. Without asking defendant whether he waived the rights, the police asked defendant where the guns were. (The police had information that defendant was armed with a handgun and possibly also a machine gun.) Defendant said there was a gun under the mattress. The police lifted the mattress and found a handgun and a bank deposit bag. In my view, the case is indistinguishable from People v. Sully (1991) 53 Cal.3d 1195, 1233 [ 283 Cal.Rptr. 144 , 812 P.2d 163 ]. As in this case, the defendant in Sully was advised of his interrogation rights, affirmed his understanding of those rights, and thereafter proceeded to answer questions without expressly waiving his rights. On the authority of North Carolina v. Butler, supra, 441 U.S. 369, 373 [ 60 L.Ed.2d 286, 292 ], this court held that defendant had knowingly, intelligently, and voluntarily waived his rights, and that the waiver was manifested by his conduct in responding to the officer’s questions. I would make the same holding here. The conclusion that defendant fully and effectively waived his rights makes it unnecessary to decide whether defendant’s statement could be held admissible under the “public safety” exception to the Miranda requirements articulated in New York v. Quarles (1984) 467 U.S. 649 [ 81 L.Ed.2d 550 , 104 S.Ct. 2626 ], *471 III. Cross-examination of Defendant During the trial, defense counsel moved for an advance ruling that if defendant testified in his own behalf during the guilt phase, the prosecution would be barred from cross-examining him about two murders committed in South Carolina. The trial court refused to make such a ruling, remarking that defendant’s testimony on direct examination could conceivably make the South Carolina murders proper subjects of cross-examination. Defendant did not testify at the guilt phase. Defendant contends on this appeal that the trial court erred in failing to grant the request for an order barring cross-examination on the South Carolina crimes. The majority concludes that defendant’s claim is not preserved for review because he did not testify at the guilt phase. The majority relies upon People v. Collins (1986) 42 Cal.3d 378, 383 [ 228 Cal.Rptr. 899 , 722 P.2d 173 ], in which this court held that to preserve for appellate review a claim of error in a trial court ruling permitting impeachment with a prior felony conviction, the defendant must testify and suffer impeachment. The majority’s reasoning is unnecessarily cumbersome. Rather than holding that the issue is not preserved for review, I would hold that the trial court did not err. Although the propriety of impeachment with a prior felony conviction often may be determined in advance of a witness’s testimony, the trial court in the present case could not judge the relevance or probative value of questions about the South Carolina murders without knowing the content of defendant’s testimony on direct examination. Because an advance ruling simply was not feasible, the trial court properly declined to make one. Conclusion Finding no error or other defect warranting reversal, I concur in the affirmance of the judgment. Justice Powell, the fifth member of the majority, did not believe it should make a difference who initiated the conversation, provided only that the circumstances showed that the accused had made a knowing and intelligent waiver of the previously asserted right to counsel. ( Bradshaw, supra, 462 U.S. 1039, 1047-1054 [ 77 L.Ed.2d 405, 413-416 ] (conc. opn. of Powell, J.).) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9580186. Public record. Not legal advice.