Appendix — California v. Boyer

Supreme Court brief1989

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No. JUL 11 1989

JOSEPH F. SPANIOL, JR,™

; CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1988

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner and Respondent,

Vv.

RICHARD DELMER BOYER,

Defendant and Appellant.

APPENDICES TO PETITION FOR WRIT OF

CERTIORARI TO THE CALIFORNIA

SUPREME COURT

JOHN K. VAN DE KAMP,

Attorney General of the

State of California

RICHARD B. INGLEHART,

Chief Assistant Attorney

General

HARLEY D. MAYFIELD,

Senior Assistant Attorney

General

JAY M. BLOOM,

Deputy Attorney General

110 West A Street, Suite 700

San Diego, California 92101

Telephone: (619) 237-7750 :

TABLE OF CONTENTS

APPENDIX A

Opinion of the Supreme Court

of the State of California in

People v. Richard Delmer Boyer,

$004656, Crim No. 24265, Superior

Court No. C-24265

APPENDIX B

Order Denying Rehearing

Modification of Opinion

Remittitur

- APPENDIX A

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PE ee ae ee

APPENDIX A

[Filed March 13, 1989]

IN THE SUPREME COURT OF THE

STATE OF CALIFORNIA

THE PEOPLE OF THE

S004656

STATE OF CALIFORNIA,

Crim No.

Plaintiff and 24265

Respondent

S.C. No.

v. C-24265

RICHARD DELMER BOYER,

Defendant and

Appellant.

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Defendant Richard Delmer Boyer was :

convicted in Orange County Superior Court

of two counts of first degree murder (Pen.

Code, §§ 187, 189 +/) and two counts of

robbery (§211). The jury sustained an

allegation that defendant had used a

deadly weapon, a knife, in each of the

offenses (§ 12022, subd. (b)). It also

SEE DISSENTING OPINION

1. All statutory references are to

the Penal Code unless otherwise indicated.

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found as special circumstances under the

1978 death penalty statute that defendant

had been convicted of more than one murder

in the proceeding (§ 190.2, subd. (a)(3))

and that each of the murders was committed

intentionally in the course of a robbery

(§ 190.2, subd. (a)(17)(i).) After a

penalty trial, a jury imposed a death

sentence. The trial judge sustained the

penalty verdict (§ 190.4, subd. (e)), and

a judgment of death was entered. This

appeal is automatic.

We confront the relatively rare but

distressing case in which the outcome is

determined by the constable’s blunders.

Defendant's inculpatory statement to the

police was obtained in flagrant violation

of the Fourth Amendment and Miranda v.

Arizona (1966) 384 U.S. 436. The courts

below should therefore have granted

defendant's motions to suppress the

statement. Its admission at his guilt

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trial was prejudicial by any applicable

standard. We must therefore reverse the

judgment in its entirety.

However, we reject defendant's

contention that other material evidence of

his guilt was also suppressible as

“tainted fruit” of the illegal police

conduct. This remaining evidence, we

conclude, may be admitted in any retrial.

I. GUILT TRIAL

A. Prosecution case-in-chief.

On the evening of December 7, 1982,

Francis and Eileen Harbitz, an elderly

Fullerton couple, were robbed and stabbed

to death in their home.’ There were no

signs of forced entry. The bodies were

discovered several days later by the

victims’ son William, who had become

concerned for his parents because they had

not responded to his calls and had not

been seen.

William testified he knew defendant,

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who was also acquainted with the victims.

On several occasions, defendant helped the

elder Harbitzes around the house, and he

owed them money. Defendant had been at

the senior Harbitzes’ home about four

months before the killings, and William

had not seen or heard from him for a long

while thereafter. However, in the week

before December 7, William received

several telephone calls from defendant.

In once conversation, defendant indicated

he was struggling to survive financially.

Under a grant of immunity, John

Kennedy testified that he and defendant

purchased and injected cocaine together on

the afternoon of December 7. Kennedy used

$25 of his own money to buy the drug.

After consuming the cocaine, the two men

went to the home of defendant’s parents,

where defendant was to get money to pay

Kennedy back. When he emerged from his

parents’ residence, defendant claimed he

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had the money, but he did not immediately

give it to Kennedy.

Defendant later indicated he wanted

to go to the residence of someone named

Bill to collect some money Bill owed him.

Kennedy drove defendant to a neighborhood

in Fullerton. At defendant's direction,

Kennedy parked on a side street, then

waited while defendant crossed a yard and

disappeared. Defendant was wearing a

knife in a sheath. After 45 or 50

minutes, defendant returned carrying a

towel. At that moment, a police or

security car passed by, and defendant used

the towel to wipe off the rear window of

Kennedy's vehicle.

Defendant then got into Kennedy’s car

and told him to drive off calmly without

attracting attention. Kennedy noticed a

spot of blood on defendant's knife. While

they were driving, defendant disclosed he

had been stabbed in the leg, and he put

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the towel over his left knee. Defendant

said there had been dope dealers in the

house who had no dope and wanted to hurt

him, but he had hurt them instead. At

defendant's direction, Kennedy proceeded

back toward defendant’s El Monte

residence, using the “605” and San

Bernardino freeways. During the trip,

defendant went through two wallets. He

threw one out the window along the San

Bernardino freeway and discarded the other

in a sewer ditch beside an offramp in

Temple City. Defendant eventually repaid

Kennedy for the cocaine.

Cindy Cornwell, also granted immunity

for her testimony, disclosed that she and

her three children lived with defendant

from October 1982 until his arrest. The

sole household income was Cornwell's

welfare check, and they were in severe

economic straits. Cornwell knew defendant

had no money on December 7, 1982, because

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he asked her for $30 that morning. Later

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that day, he left with Kennedy, saying he

wanted to sell a shotgun to his parents to

get cash and would be “right back.”

Defendant returned home in the

evening with a stab wound near his left

knee. He said he had been unable to sell

the gun to his parents, and had been

knifed in an argument with a loan shark

whom he next approached. Defendant told

Cornwell he had ultimately obtained $10

for the shotgun. He displayed the money,

which consisted of two separate bundles of ‘

five $1 bills.

On the evening of December 14,

defendant told Cornwell he had done

something which would make her "mad at

him” but gave no further details. Shortly

thereafter, Fullerton detectives arrived

and asked defendant to accompany them to

the station for an interview. Later that

evening, after consulting defendant and

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her attorney, Cornwell gave the police

permission to search the residence.

Before the police arrived to search,

Cornwell burned the light blue jacket

defendant had worn on December 7.

Cornwell said her motive was to distract

defendant when he returned from the police

station by telling him she had burned the

jacket but was buying him a new one for

Christmas.

Cornwell had seen defendant drunk

“many times”; by early December 1982 she

was aware he smoked marijuana and used

cocaine daily. However, defendant seemed

sober when he returned on the night of

December 7. Cornwell also indicated that

defendant habitually wore a knife on his

belt, but had stopped doing so after that

day.

During the December 14 search of the

home shared by defendant and Cornwell,

police found pants stained with blood

A-9

similar to that of the victims. A

bloodstained knife was also seized from

the residence. The stains on the knife

were of human origin, but were too small

to allow closer analysis.

While at the Fullerton police station

on December 14, defendant admitted killing

the Harbitzes. His recorded interview

with Detective Lewis was played for the

jury. During the interview, defendant

said he had been drinking on December 7

and “was on cola that night, cocaine.” He

went to his parents to obtain money, but

was unsuccessful. He next tried to find

William Harbitz for the same purpose, but

William had moved from the last address

defendant knew. Defendant shared a PCP

cigarette with his friend Melody. He then

proceeded to the senior Harbitzes’

residence, driving a car borrowed from

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Kennedy.2/ His purpose was to find out

where William lived. When he arrived, he

“had bennies in [him]” as well as “cocaine

- « »« and PCP;”" he “was definitely on the

stuff.”

According to defendant's statement,

Mrs. Harbitz admitted him cordially. They

chatted briefly in the kitchen. Defendant

was beginning to feel faint. Mrs. Harbitz

encouraged him to say hello to her

husband, who was watching television in

the bedroom. Defendant did so. While in

the bedroom, he noticed Mr. Harbitz’s

wallet on the dresser. He began to form a

"crazy idea” to rob the Harbitzes or

obtain money from them somehow.

He emerged from the bedroom, feeling

more and more dizzy, and encountered Mrs.

Harbitz. As he followed her back down the

2. In his recorded statement,

defendant denied that Kennedy was with him

when he went to the Harbitz residence.

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hall toward the kitchen, he decided to

take the couple's wallets and money. At

that time, he did not intend to harm then.

However, as he placed his hand over Mrs.

Harbitz’s mouth, he “freaked out” and

began to stab her again and again. She

broke free and screamed for her husband.

Mr. Harbitz came into the hallway and

began hitting defendant with his cane.

Defendant then “tore into” Mr. Harbitz

with the knife. Sometime during the

attacks, defendant stabbed himself in the

leg but did not realize it at the time.

After the assaults, defendant

recounted, he retrieved Mr. Harbitz’'s

wallet from the bedroom dresser.*/ He then

rinsed off the knife in the kitchen sink.

Mrs. Harbitz's purse was in the kitchen,

and he removed her wallet. He took a

3. In responde to questioning,

defendant made clear that the wallet was

on the dresser, not in Mr. Harbitz’s

trousers.

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towel for his leg, left by the front door,

and drove away. He removed the cash from

the wallets--about $40 in all--and threw

them out of the car along the "605"

freeway. He also threw the towel away.

However, defendant indicated that his

bloody jacket, trousers, and knife were

still in the house he shared with

Cornwell.

Defendant said that just before he

grabbed Mrs. Harbitz, he developed a

severe headache; then he "started just

freakin’ out.” He was “seeing colors,”

“flashes” went through his head, and the

room “started spinnin’.” When Mrs.

Harbitz struggled, defendant drew his

knife; as he did, he remembered thinking,

"I get too involved in, in, violent

movies. Okay? And I was thinking of

something into that nature at the time. I

don't know if I was puttin’ myself in, in

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one of the actor's spots or

something. . . .” He remembered only

“pieces” of the episode and could not

recall where or how many times he had

stabbed the victims. He expressed remorse

for the killings.

Later on the evening of December 14,

after the interview had ended, defendant

led detectives to a sewer gutter next to

the Temple City offramp from the San

Bernardino freeway. There they recovered

a wallet linked to the victims.

B. Defense case.

Defendant testified in his own behalf

as follows: He had been at the Harbitz’s

home many times, doing yard and house

work. He felt affection for Mr. and Mrs.

Harbitz, and he cared about them. He had

borrowed money from the Harbitzes in the

past, but they were not pressing him for

repayment.

Defendant habitually used alcohol,

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cocaine, marijuana, LSD, Quaaludes,

“reds”, and “angel dust” (PCP). He

consumed a pint of whiskey during the day

of December 7, 1982, and may have smoked

some “pot.” He and Kennedy also “scored”

a quarter gram of cocaine, using Kennedy's

money. While waiting for Kennedy to

obtain the cocaine from Kennedy's

“connection” in El Monte, defendant smoked

a PCP cigarette. As Kennedy had

testified, the two injected the cocaine,

then began an odyssey in search of money

to repay Kennedy.

During this interval, defendant began

to develop a headache he recognized as a

reaction to the drugs. He knew from

experience that he was “in trouble” and

that the symptoms would worsen. His

paranoia increased, and his vision began

to “play games” with hin.

Finally defendant and Kennedy arrived

in the senior Harbitzes’ neighborhood.

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Defendant intended to ask William

Harbitz’s parents where William was now

living. Defendant had no intent to harm

the elder Harbitzes or obtain money from

them. He told Kennedy to drop him off

around the corner from the Harbitz

residence because his head hurt, Kennedy’s

“complaining” was making him “paranoid, "

and he just wanted to get out of the car.

After defendant entered the house, his

headache intensified, and he felt like

someone was hitting him in the back of the

head with a hard object. He chatted with

Mrs. Harbitz in the kitchen and briefly

visited Mr. Harbitz in the bedroom,

feeling worse as the minutes passed and

wanting only to be on his way.

Defendant politely ended his

conversation with Mr. Harbitz, then began

to follow Mrs. Harbitz back down the hall

toward the front room. As he did so, he

say a foggy figure which looked like a

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killer in a horror movie, either "Friday

the 13th” or “Halloween.” He could not

make the vision disappear. Defendant felt

like he was on a “bad trip” induced by the

drugs he had ingested.

At this point, everything “went

black.” Defendant next recalled kneeling

beside Mrs. Harbitz, who was lying on the

floor surrounded by blood. Defendant saw

Mr. Harbitz and told him to get help.

When Mr. Harbitz did not respond,

defendant wondered if he was also hurt and

went toward him. Defendant again

remembered nothing until he found himself

in the bathroom, holding a towel and

noticing blood on his leg. He blacked out

again until he arrived at his car.

Contrary to his taped statement, he did

not remember taking wallets from the

house.

Defendant recalled wiping off the

car's rear window with the towel when a

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police vehicle passed by, but “wasn’t

really sure” what he needed to conceal.

Anxious that “something” had happened

inside the house, he told Kennedy to drive

away slowly. Defendant then noticed Mr.

Harbitz’s wallet in his pocket and took

the money it contained. He initially

intended to throw the wallet out of the

car along the freeway, but he ultimately

left it in a drainage ditch across the

street from his house.

Defendant lied to both Kennedy and

Cornwell about the events of the evening

of December 7 because he did not know what

to say and did not want questions. During

the next week, he telephoned both William

Harbitz and the senior Harbitzes’

residence several times, hoping to learn

whether something had happened to them.

By the evening of December 14, when

Fullerton detectives arrived, defendant

was convinced he had probably done

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something “terrible”; he told Cornwell he

thought he had “hurt a couple of people. "+

However, in the taped interview with

Detective Lewis, defendant "filled in gaps

in his memory,” saying he remembered

things he actually did not recall.

Defendant did so to protect Kennedy and

Cornwell. Contrary to his interview

statement, he never consciously decided to

rob the Harbitzes or obtain money from

4. This testimony differs both from

defendant's police interview and from

Cornwells’ trial testimony. Defendant and

Cornwell have consistently stated that

they had a brief, interrupted discussion

just before the Fullerton detectives

arrived at defendant's El Monte home on

December 14. Cornwell claimed at trial

that defendant said he had done something

she would be “mad” about, but that he gave

no further details. Cornwell said she

assumed at the time that the transgression

was minor. In his statement to the

police, on the other hand, defendant

declared that he "told her who it was” he

had “murdered” and confessed he had

"killed .. . Bill's parents." According

to defendant’s interview statement, his

admission to Cornwell "just like took the

breath away from her . ‘

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them, and he had no memory of the

stabbings.

The defense also called Dr. Ronald

Siegel, a psychopharmacologist. Siegel

recited his understanding of defendant's

heavy use since adolescence of multiple

drugs. According to Siegel, certain of

these drugs, particularly LSD, can induce

later spontaneous and involuntary

“flashbacks,” in which the subject relives

, a prior drug experience. Siegel testified

that in a minority of cases--about 7

perndat=<ties subject cannot distinguish

the flashback from reality.

Siegel said he had ascertained from

defendant’s description that defendant's

hallucinations in the Harbitz residence

were from the movie “Halloween II," which

defendant had seen under the influence of

PCP, marijuana, and alcohol. The film was

played for the jury, and Siegel pointed

out various similarities between its

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scenes and the visions defendant

described.

According to Siegel, defendant's

report of his feelings at the time of the

killings was “consistent with” a momentary

flashback to the movie. If such an

episode occurred, Siegel suggested, it

would have produced confusion, anxiety,

impulsiveness, and panic. ‘nese feelings

would be intensified by the PCP and

cocaine defendant had ingested on

December 7, 1982, and “may” have caused

him to overreact.

Siegel acknowledged that any such

flashback was brief, since defendant's

conduct beginning immediately after the

killings showed rational attempts to

conceal his guilt. Thus, Siegel conceded,

“I don't think [defendant's] intoxication

was that intense... .”"

C Prosecution rebuttal.

On rebuttal the prosecution

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introduced a stipulated statement to the

following effect: On December 15, 1982,

the day after the taped statement,

Fullerton Detectives Allred and Lewis

again interviewed defendant. At that

time, defendant said he remembered

stabbing Mr. and Mrs. Harbitz more than

once, but he could not say how many times.

Defendant also admitted knowing before he

left the Harbitzes’ home that he had

killed them, and he again expressed

remorse.

II. SUPPRESSION OF EVIDENCE

At his preliminary hearing, and

before both guilt trials in this case,='

defendant sought suppression of his

statement of December 14, 1982, and of

other evidence stemming from his station

house interview, on grounds they were

obtained in violation of his rights under

5. A previous guilt trial resulted

in a hung jury.

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the Fourth and Fifth Amendments and

Miranda v. Arizona, supra, 384 U.S. 436.

His motions were denied at all stages.

Defendant renews contentions that he was

denied his Miranda rights, that his

statement was involuntary because induced

by promises and threats, and that it was

the product of an illegal seizure without

legal cause.

We find defendant's Fourth Amendment

and Miranda claims persuasive. The police

misconduct leading to defendant's

inculpatory statement was aggravated.

Though the People characterize his

participation as “voluntary,” defendant

was transported from his El Monte home to

the Fullerton police station and

interrogated under circumstances amounting

to an arrest. This detention was improper

under the Fourth Amendment because, as the

People concede, the police had no legal

ground for the restraint. Defendant’s

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statement was the direct product of the

illegal seizure.

Moreover, the interrogating

detectives pointedly ignored defendant's

unequivocal attempts to assert his Miranda

rights to silence and counsel. After

questioning finally ceased, and without

honoring defendant's request for an

attorney, one of the detectives began a

new conversation about the case under

circumstances reasonably calculated to

elicit an incriminating response. The

ploy was successful; defendant blurted an

admission that he was the killer. For

each of these reasons independently,

defendant's statement was inadmissible at

trial as proof of his guilt.

The scope of our review of

constitutional claims of this nature is

well established. We must accept the

trial court's resolution of disputed facts

and inferences, and its evaluations of

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credibility, if they are substantially

supported. (See, e.g., People v. Howard

(1988) 44 Cal.3d 375, 398; In re Erick J.

(1979) 25 Cal.3d 522, 527; People v. James

(1977) 19 Cal.3d 99, 107.) However, we

must independently determine from the

undisputed facts, and those properly found

by the trial court, whether the challenged

statement was illegally obtained. (See,

e.g., People v. Jimenez (1978) 21 Cal.3d

595, 609.) Applying these standards, we

address the circumstances surrounding

defendant's statement.

A. Circumstances of interrogation.

The record, viewed most favorably to

the prosecution, indicates as follows: By

December 14, 1982, Fullerton police deemed

defendant a possible suspect in the

Harbitz killings, but they lacked

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sufficient cause to arrest him.£ About

5:30 p.m. on December 14, after evening

darkness had set agg err pare Allred and

Lewis met at defendant's El Monte

residence with Officers Scroggins and

Fentress of the El Monte police force.

Both sets of officers were in plainclothes

and unmarked vehicles. Lewis explained to

Scroggins and Fentress that he lacked

probable cause to arrest petitioner and

was seeking a voluntary interview. He

instructed them to “cover the rear” of the

house while he and Allred knocked at the

front door. It was understood that

6. Fullerton Detectives Allred and

Lewis acknowledged_as much in their

testimony at the suppression hearings.

Their concession appears well-founded. As

of December 14, police suspicions rested

principally on the “long shot” suggestion

of William Harbitz (himself initially a

suspect) that defendant might be the

killer because he had done gardening work

for the elder Harbitzes, owed them money,

often carried a sheath knife, was violent

when drunk, and had suddenly begun calling

William after being out of touch for

several months.

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defendant would be detained if he

attempted to flee.

Lewis knocked on the door, identified

himself to a woman who peered out the

window, asked for defendant, and requested

permission to enter. The woman explained

the front door could not be opened.

Defendant then emerged from the back door

and was stopped by Scroggins and Fentress.

Scroggins identified himself as a police

officer, asked defendant to step into the

driveway, and told him two gentlemen in

front would like to speak to him. Lewis

and defendant testified that the El Monte

officers commanded defendant to “freeze”

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or “halt” when he came out the door.”

The evidence was conflicting as to

whether the El Monte officers had “ahold”

of defendant as they walked him to the

front of the house. There Lewis asked

defendant if he would voluntarily come to

the Fullerton police station for an

interview. Defendant agreed. He

testified he did so beca:s2 he thought he

would have to go anyway and did not want

to create a scene in front of Cornwell.

Defendant asked if he could go in and

get a shirt before leaving with the

officers. Lewis agreed, and the officers

followed defendant inside. Lewis went

7. Defendant testified he had heard

noises that sounded like dogs barking,

went outside to investigate, saw

flashlight beams he associated with police

officers, and heard someone say “halt” and

identify as a police officer. Lewis said

he heard someone behind the house say,

“police officers, freeze.” Defendant then

came around the corner of the house

walking in front of Scroggins and

Fentress.

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into the house because he wanted to keep

defendant in sight .2/

Inside the house, Cindy Cornwell

asked if she could accompany defendant to

the station. Lewis said she could go, but

she was unable to arrange child care.

Lewis explained that defendant would be

gone about three hours, including one hour

of interview time and two hours of travel.

Defendant and the officers then

emerged from the house and walked to the

Fullerton police car, where defendant was

frisked for weapons. Lewis told defendant

to “have a seat in back,” and defendant

did so. Lewis and Allred got into the

front seat. There was no cage between the

front and rear of the passenger

compartment, defendant was not handcuffed,

and the car doors were not locked. During

8. Whether defendant expressly

consented to the officers’ entry is

disputed.

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the one-hour drive from El Monte to

Fullerton, Lewis told defendant they were

investigating a homicide and would not

take statements until they reached the

station.

Once at the Fullerton station, Lewis

and Allred brought defendant to a small

interrogation room. About 7:15 p.m.,

Lewis advised defendant ofhis Miranda

rights and commenced a tape recorded

interview. Defendant testified he was

not aware the conversation was being

recorded.

Lewis told defendant the police were

9. In obtaining defendant’s Miranda

waiver at the outset, Lewis twice asked if

defendant, with his rights in mind, was

willing to talk to Lewis about the

“charges” against him. After the first

such question, defendant inquired what

charges Lewis was talking about. Lewis

then attempted to correct himself, saying $

"“[t)here's, there’s no charges at. .

Defendant responded, "Oh, okay,” and

agreed to talk. Lewis then re-asked the

question, again using the words "charges

against you.”

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investigating the murders of Mr. and Mrs.

Harbitz. He then asked some general

questions about defendant's relationship

to the victims and how recently he had

been at their home. Defendant insisted he

had not been there for at least six

months. After several minutes, Lewis told

defendant that William Harbitz "says you

killed his mother and dad.” As defendant

continued to protest his innocence, Lewis

repeatedly proclaimed that the police knew

and could prove defendant had committed

the homicides, and that defendant was

“gonna’ fall on this one.” Lewis declared

that the iekeken had evidence of which

defendant was unaware, that they could

“place [him] at the scene,” and that he

would discover the nature of the evidence

“when [he went] to court.” Defendant's

lies to the contrary, Lewis asserted,

would not make the situation “go away.”

Lewis suggested that defendant

A - 31

probably was “wired” (i.e., intoxicated by

drugs) when he stabbed the victims and was

not fully aware of what he had done.

Defendant was urged to show some "damn

conscience” and to help the police

“understand” his actions. Again and

again, Lewis insisted defendant would not

be able to “live with” his guilt. Still

defendant insisted he had not gone to the

| Harbitz residence on December 7 and was

not the killer.

During this period, defendant asked

several times if he was under arrest;

Lewis evaded the questions and continued

the interrogation. In hopes of prolonging

the interview, Lewis also ignored several

unequivocal statements by defendant that

he wanted a lawyer and did not wish to say

anything further. Finally, around

8:49 p.m., defendant again said he

“(didn‘t] wanna talk no more.” At this

point, Lewis ended the questioning and

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told defendant to “sit tight. "4

After leaving the room for a moment,

10. After twice refusing to answer

defendant's inquiry whether he was under

arrest, Detective Lewis continued

aggressive questioning, finally accusing

defendant of “sittin’ here lying to

me. .. .” The conversation then

proceeded as follows: "“[{€] [DEFENDANT]:

“So, am I under arrest? I’m under arrest.

For murder. (inaudible) charges. [{]

LEWIS: That‘s where you’re at right now.

{%] [DEFENDANT]: Can I have a phone call

later? [4] LEWIS: Uh-huh (yes) [4]

{DEFENDANT}: Well, if I’‘m under, I wanna

lawyer-- [4] LEWIS: I didn’t think that

a, [4] [DEFENDANT]: If I’m under

arrest, I wanna lawyer. [4]... [{@] .

- I wanna lawyer now if I'm under arrest.

["@] LEWIS: What do you mean, if you’re

under arrest? You saying you don’t want a

lawyer if you’re not under arrest? That's

kinda word games, isn't it? [{}

[DEFENDANT]: Well I, in other words, I

don’t wanna say no more, you know. Those

are my rights, aren’t they? [4] LEWIS:

Sure.” Nonetheless, Lewis continued the

conversation, reemphasizing his theme that

defendant would not be able to live with

his guilt. Defendant again said, “I'm not

sayin’ no more. I’m sorry.” Again he was

ignored. Lewis asked if defendant's

girlfriend knew “what you did,” and he

pursued a line of questioning, ostensibly

sympathetic, about defendant’s relations

with his parents and with the victims.

Finally, after an apparent break in the

tape, defendant said again, “And I don’t

wanna talk no more.” This time, his

request was honored.

. . e

toe °

A - 33

Lewis returned and asked defendant for

consent to search the El Monte house.

Lewis urged that defendant should have no

objection if, as: he insisted, he had

nothing to hide. Defendant agreed to a

search, but only if Cornwell also gave

permission, since “[ijt’s her house.”

After obtaining defendant's consent

to search, Lewis again told him to “sit

tight for a few minutes” and turned off

the recorder. Lewis then telephoned

Fullerton Officers Davinroy and Ritter,

who had been waiting at a fire station

near the El. Monte house. He told them

they must obtain Cornwell's consent to

search the residence. Before doing so,

she consulted both defendant (see

discussion, post) and her attorney.

Cornwell subsequently signed a written

consent form.

After calling Davinroy and Ritter,

Lewis returned to the interrogation room.

A - 34

With the tape recorder still off, Lewis

asked defendant if the police could

‘fingerprint him for elimination purposes.

According to Lewis, defendant said “okay”

but asked again if this meant he was under

arrest; Lewis answered that he was not.

Defendant recalled no such conversation.

Allred then “walk[ed defendant] over to

the jail facility” to have his

fingerprints taken. Defendant testified

he was handcuffed during the trip to the

jail; the officers denied it.

After about 25 minutes, Allred

returned from the jail with defendant.

Defendant took a telephone call from

Cornwell. As Lewis interpreted

defendant's side of the conversation,

Cornwell was asking whether she should

give permission to search their residence.

Defendant indicated “that it was her

decision, it was her house, it was okay

with him.” Lewis overheard defendant tell

Bix.

A - 35

Cornwell he was being charged with two

counts of murder. This “somewhat shocked”

and “surprised” Lewis, since defendant had

not been placed under arrest.

When defendant completed the

telephone conversation, he walked toward

Lewis, who was standing in the hallway

adjacent to the interrogation room. As he

did so, Lewis said, "Why don’t you step in

here [i.e., the interrogation room] for a

few minutes, I just want to tell you a

couple things.” Defendant walked into the

room and sat down, while Lewis remained

standing at the doorway. The tape machine

was not turned on. Lewis recited that

since defendant had asked for an attorney,

"I wasn't there to solicit any statements

from him,” but "I just wanted him to

understand a couple things.”

Lewis then told defendant that while

he was being fingerprinted, the detectives

had telephoned Paul Harbitz, another of

A - 36

the victim's sons. Paul was “fairly

certain” defendant had done yard work for

the senior Harbitzes in September or

October, more recently than defendant

maintained. Lewis advised defendant that

he “didn’t know whether [defendant] was

involved in this” and “whether he was

telling the truth or not” but would be

“checking further into the case with Bill

Harbitz.”

According to Lewis, he then turned to

leave the room, intending to arrange

transportation home for defendant. At

this point, defendant shouted, “Hey, wait

a minute. Come back here and sit down.

You're right, I can’t live with it. I did

it. I didn’t mean to do it. But I did

st.*

Lewis reactivated the recorder and

took a waiver of defendant's Miranda

rights, during which defendant remarked

that he could not afford an attorney.

A - 37

Defendant then proceeded to give the

statement described above.

B. Illegal seizure.

Defendant first urges that his

statement must be suppressed because it is

the fruit of an illegal arrest without a

warrant or probable cause. We agree.

Because of the particular interests

protected by the Fourth Amendment, a

statement must be suppressed, even when

knowing, voluntary, and intelligent, if it

is the direct product of an illegal arrest

or detention. (Dunaway v. New York (1979)

442 U.S. 200, 216-217; Brown v. Illinois

(1975) 422 U.S. 590, 602-604.) By

proscribing searches and seizures without

adequate cause or judicial authorization,

the Fourth Amendment guards, among other

things, against the police tactic of

“investigative detention. * (E.g., Hayes

v. Florida (1985) 470 U.S. 811, 815-816.)

This case presents a classic example of

~~ e

A - 38

such tactics.

The People urge that the encounter

between defendant and the police was

consensual, and thus not a detention.

However, the test of detention under the

Fourth Amendment is whether a reasonable

person in the suspect’s position would

have felt free to leave. (E.g., Florida

v. Royer (1983) 460 U.S. 491, 501-502.)

Under this test, the instant facts suggest

conclusively that defendant's

interrogation occurred during an illegal,

prolonged detention amounting to arrest.

The People stress that defendant was

contacted by plainclothes officers in

unmarked cars, agreed to go to the police

station, was never handcuffed or overtly

restrained, and was questioned in an

interview room not exclusively reserved

for suspects under arrest. They emphasize

that the officers never told defendant he

was under arrest and had no intent to

A - 39

arrest him until he made the incriminating

statement "I did it.”

We agree with defendant, however,

that many of the formal indicia of

detention or arrest were present during

the initial encounter with the officers,

his transportation to the Fullerton

station, and the ensuing interview. The

manner in which the police arrived at

defendant’s home, accosted him, and

secured his “consent” to accompany them

suggested they did not intend to take "no”

for an answer. Indeed, as previously

noted, Lewis testified that the officers

intended to detain defendant if he

attempted to leave before speaking with

them.

Whatever defendant’s status before

arriving at the Fullerton station,

however, the situation quickly ripened

into a full-blown arrest inside the

station house. Defendant was confronted

PRT GSAS ET REI FAN

A - 40

by two officers in a small interrogation

room. He was informed of his Miranda

rights, an indication that the officers

themselves believed the situation might be

tantamount to custody. Thereafter, he was

subjected to more than an hour of directly

accusatory questioning, in which Lewis

repeatedly told him--falsely--that the

police knew he was the killer, had all the

necessary evidence, intended to charge him

with the crimes, and would prove his guilt

in court. According to Lewis, they sought

only to learn “why” he had done it, in

order to establish the precise degree of

culpability.

While Lewis never expressly told

defendant he was under arrest, his

response to defendant's pointed inquiries

on that issue furthered the impression of

official restraint. Lewis first ignored

defendant's questions about arrest. Then,

in what appeared an immediate answer to

st 8 inry Tac NRO AeA SAIN AAI IDR CLARA IEE ALN APES ARE EN AB ADE Is CE ES

another such question, Lewis said, “That's

where you're at right now.” (See fn. 10,

ante.) when defendant then asked if he

could have a telephone call “later”--an

obvious indication that he believed

himself in custody--Lewis simply

responded, “Uh-huh.” (Ibid.)

Under such circumstances, a

reasonable person could only conclude that

the police deemed him their sole suspect

in a double murder and would restrain and

formally arrest him if he tried to leave.

Thus, defendant was under illegal arrest

during this period. The question remains

whether his final statement was obtained

by exploitation of the illegality and must

11. Lewis testified he intended this

comment merely as a continuation of his

prior statement to defendant that he

believed defendant was lying about his

innocence. In context, his remark was not

likely to be understood in that way. Even

if it were, however, it would constitute

yet another ominous evasion of defendant's

questions.

ibis Sha OS ORs SK OA NIRA OO RAAT OPO E RIOR Sigh sna tg 1 gE Nl EAE api RR dD ing <A RDEARY t ee DE

AV ey aD et ea WEAR oi 7 \

So eh pale»

REAR NGI DI Bee eA AR AOI Ne AMC

PT as ee 2 eee ee

A - 42

therefore be suppressed.

The issue is whether "intervening

events break the causal connection between

the illegal [detention] and the

{incriminating statement] so that the

{statement] is ‘"sufficiently an act of

free will to purge the primary taint.”’

[Citations.]” (Taylor v. Alabama (1982)

457 U.S. 687, 690, quoting Brown, supra,

422 U.S. at p. 602, which in turn quotes

Wong Sun v. United States (1963) 371 U.S.

471, 486.) The important considerations

are "t]he temporal proximity of the

{illegal seizure] and the [statement], the

presence of intervening circumstances,

- - «- and, particularly, the purpose and

flagrancy of the official misconduct.”

(Taylor, supra, quoting Brown, supra, at

pp. 603-604.)

The People suggest that defendant's

statement was not the tainted “product” of

the illegal arrest, since it occurred as a

SYNE Fe TEM ME Ky TIE pe ITE ~ Se ee oo ep “~ CNT t OOP NOTE P ERNST LETT PER ~ ee

A - 43

spontaneous outburst, long after coercive

questioning had ceased, and at a time when

defendant cannot have believed his liberty

was restrained. They emphasize that in

the interim between interrogation and

statement, defendant consented to

. “voluntary” fingerprinting, was told he

was not under arrest, and was allowed to

speak by telephone with his girlfriend.

Moreover, the People note, Detective Lewis

was preparing to arrange defendant's

transportation home when defendant called

him back with the words, “I did it.”

No such “attenuation” argument was

raised below. In any event, we are not

persuaded. As the record makes clear,

defendant's statement occurred less than

four hours after he left this home under

police escort, and less than two hours

after the commencement of a station house

interrogation in which aggressive

“softening up” tactics were employed. He

De VE ESAS NPR SAORI He Oo

A- 44

remained in police facilities and police

company up to the moment he decided to

give his statement. Hence, there were no

significant intervening events to break

the chain of causation between the

flagrant illegality of his custodial

interrogation and his subsequent

statement. (Compare, e.g., Dunaway,

supra, 442 U.S. at pp. 218-219; Brown,

supra, 422 U.S. at pp. 603-605.)

Were there any remaining doubt, it is

resolved by defendant’s own words when he

first blurted out this involvement in the

killings. Defendant’s concession that

"You're right, I can‘t live with it” was a

direct and ebvivvs response to the

interrogational techniques used by

Detective Lewis during the earlier illegal

interview. Again and again, Lewis had

exhorted defendant to confess because he

would not be able to “live with” his

acl

A - 45

guilt .42/ Defendant's "I did it” statement

led immediately to his agreement to give a

12. Lewis’ variations on the “guilty

conscience” theme included the following:

"I don’t think . . . you can live with it.

I don’t think you can keep it in your head

now that you know what you've done.” “You

think you can ever face Bill [Harbitz]

again? Or Glenda [William Harbitz’'s

wife]?” ”". . . And I know you're probably

sorry as hell you did it, and you probably

can’t even believe at this time that you

did do it. I think it’s like a bad dream

to you--you’re just trying to wipe it out.

but it’s not gonna go away.”

“, . .What. . . I want you to face up to

telling me why you did it.” "I'll tell

you what I think, Pich. I don’t think

you’re gonna be able to live with it. I

mean up here. I don’t think you can take

what you did, you know what I’m saying?

Okay?” "Okay, now, listen, up here, is

where I don’t think you’re gonna be able

to handle what you did.” “I just don’t

think that you can handle it,

psychologically, what you did. Having

killed those two people. I don’t think

you can live with that, Rich. And I think

further down the road, you’re probably

gonna need some help. ...” ". .. I've

been tryin’ to find . . . some damn

conscience in ya, you know.” “Don’t you

think when someone does something that,

you know, especially if it’s a, a

situation that hurts uh, someone else

- « »« [t]Jhat they oughtta be penalized?

Don‘t you believe that?” “”. . . Tell me

something Rich, you think you’re gonna be

able to live with it? “Up in your head?”

A - 46

complete statement under a new Miranda

waiver. We could hardly have clearer

proof that defendant’s entire statement

was the product of a will overborne during

an illegal detention. For this reason

alone, the statement should have been

suppressed.

C. Miranda.

Defendant asserts that his statement

was also inadmissible for the additional

reason that his Miranda rights were

violated in several respects. We concur

that defendant’s statement was obtained in

contravention of Miranda. For this

A - 47

independent reason, it should have been

excluded from his trial .+/

13. In discussing defendant's

Miranda arguments, we realize that some

question arises whether his trial counsel

took all necessary technical steps to save

the point for review. As we have noted on

several occasions, in limine trial court

rulings on nonstatutory motions to exclude

evidence are not binding, since a court

must remain free to alter its ruling upon

full information at trial. Hence, in

general, “when an in limine ruling that

evidence is admissible has been made, the

party seeking exclusion must object at

such time as the evidence is actually

offered to preserve the issue for appeal.

{[Citations.] .. -" (People v. Jennings

(1988) 46 Cal.3d 963, 975, fn. 3.)

Binding pretrial suppression rulings under

section 1538.5 as an exception to these

principles, but a section 1538.5 motion is

limited to evidence obtained by illegal

search or seizure; it does not extend to

Miranda claims. (People v. Campa (1984)

36 Cal.3d 870, 885.)

Here, both the section 1538.5 motion

and the nonstatutory Miranda motion were

heard and decided in the superior court

before the challenged evidence was offered

at defendant’s first trial. For the

record, defendant renewed all suppression

motions at the second trial. At the

conclusion of jury selection at the second

trial, but before evidence had been

presented, the court ruled without

objection that all suppression rulings

from the first trial would remain in

effect. Thereafter, defense counsel

raised no Miranda challenge when the

(Footnote continued on next page.)

A - 48

The prophylactic requirements of

Miranda, supra, are familiar. In order to

(Footnote continued from previous page. )

prosecution offered the taped statement in

evidence.

Nonetheless, we find the Miranda

issue properly before us on the particular

facts. Even if the parties’ acceptance of

the “continued effect” ruling did not

amount to a “stipulation” on that point

(see Jennings, supra, 46 Cal.3d at pp.

975-976, & fns. 3, 4), any renewed

objection would have been entirely futile.

The sole issue litigated in the binding

pretrial emotion under section 1538.5 was

whether defendant was being “detained” by

the police for Fourth Amendment purposes

at the time he made his statement. (The

People conceded that the police had

neither a warrant nor legal cause to

detain him, and they did not argue that

the statement was somehow “attenuated”

from any illegal detention.) As both

counsel acknowledged in their later

arguments on the nonstatutory Miranda

motion, this “no detention” finding

essentially obviated Miranda's

application, since the requirements of

that case extend only to “custodial”

interrogation; the Miranda test of

“custody” is functionally equivalent to

the Fourth Amendment test of “detention.”

(See text discussion, post.)

Under these circumstance, counsel

cannot be faulted for failing to renew his

Miranda challenge at the moment

defendant's statement was offered in

evidence. No rational interest is served

by a conclusion that Miranda arguments

were waived.

a utente Deedee CRE ee ete oe ee . .

Se eng eat a p ee

A - 49

assure protection of the Fifth Amendment

right against self-incrimination under

“inherently coercive” circumstances, a

suspect may not be subjected to an

interrogation in official “custody” unless

he has previously been advised of, and has

knowingly and intelligently waived, his

rights to silence, to the presence of an

attorney, and to appointed counsel if he

is indigent. Even if the suspect

initially waives these rights and responds

to interrogation, he may reinvoke them at

any time. If he does so “in any manner

and at any stage of the process,” his

request to terminate the questioning or

obtain counsel must be “scrupulously

honored.” (384 U.S. at pp. 444-445, 473-

474, 479.) Statement obtained in

violation of Miranda are not admissible to

establish his guilt.

Here, defendant was read his Miranda

rights before the station house interview

“

A - 50

began, and he waived them. However,

defendant notes that his interrogator,

Detective Lewis, later evaded inquiries

about his custodial status, then refused

to end the interview immediately when

defendant asserted his rights to silence

and an attorney. Once questioning was

suspended, defendant urges, Lewis erred

further by engaging him in a new

conversation which was reasonably likely

to, and did, elicit an incriminating

response. Finally, defendant points to

his subsequent remark, after a new Miranda

waiver was taken, that he could not

"fuckin’ afford an attorney.” This

comment, he urges, shows that he

misunderstood his right to free appointed

counsel. Thus, defendant argues, any

waiver of rights he made before giving his

statement was not knowing and intelligent.

Miranda applies to the coercive

conditions which exist whenever "a person

A- 51

has been taken into custody or otherwise

deprived of his freedom in any significant

way.” (384 U.S. at p. 444 [fn. omitted],