Petition — California v. Mobbs

| “Spree Cour

No di FILE w

SEP 21 i976

76-4214] —

, arena

Iu the Supreme Court of the United States -

OCTOBER TERM 1976

THE PEOPLE OF THE STATE OF

CALIFORNIA,

Petitioner,

v.

OTHA LEE MOBBS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEAL, SECOND APPELLATE DISTRICT,

OF THE STATE OF CALIFORNIA

EVELLE J. YOUNGER

Attorney General

JACK R. WINKLER

Chief Assistant Attorney General

DANIEL J. KREMER

Assistant Attorney General

JAY M. BLOOM

Deputy Attorney General

KARL J. PHALER

Deputy Attorney General

110 West “A” Street, Suite 600

San Diego, California 92101

Telephone: (714) 236-7719

Attorneys for Petitioner

INTERIM PRINTING & MAILING COMPANY

3191 ADAMS AVENUE, SAN DIEGO, CALIFORNIA 92116 — 2863-7282

TOPICAL INDEX

Page

SP hohe bbe es censesedeces 1

nk PPPOPTTTETTTTT TTT TT TT 2

etoayge 9 3k 1 | ee 2

CONSTITUTIONAL PROVISION INVOLVED... 3

SUA TEOEIEE GU BUN GABE ccc cccccccenss 3

POs TE DEPRUEEOE occ ccccesessccees 5

SUMMARY OF ARGUMENT ............... 8

oo ee ee ee rr 10

1. CLAIRFYING QUESTIONS MAY

BE ASKED OF THE SUSPECT

AFTER HE HAS MADE AN

AMBIGUOUS INDICATION OF

HIS RIGHT TO REMAIN

DEE ecuekeanekeendeek ee ees 10

ll. AFTER A SUSPECT’S CONDI-

TIONAL WAIVER IS SATISFIED,

INTERROGATION MAY

ogi Rg! 6 13

EE GS Sue eke eueouekesteceawes 18

TABLE OF AUTHORITIES CITED

CASES

Michigan v. Mosley,

G25 US. SE (ISIS) . ccccccces

Miranda v. Arizona,

384 U.S. 436 (1966) ........

People v. Parker,

45 Cal.App.3d 24(1975) ....

People v. Superior Court (Zolnay)

15 Cal.3d 729 (1975) ........

United States v. Menichino,

497 F.2d 935 (Sth Cir. 1974) ..

CODES

Penal Code

I or a eal

ee eo eer

EE oo et ie ee eins el eee

CONSTITUTION

Fifth Amendment to the United States

Bo USL. Goctian VASFSe ccccccvces

Page

14,15

8,9,12,13,

14,15,16,17

17

17

12

Ww

i?

|

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1976

THE PEOPLE OF THE STATE OF

CALIFORNIA,

Petitioner,

v.

OTHA LEE MOBBS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEAL, SECOND APPELLATE DISTRICT,

OF THE STATE OF CALIFORNIA

The People of the State of California respectfuily peti-

tion that a writ of certiorari be issued to review the judgment

of the Court of Appeal, Second Appellate District, State of

California, entered in this case on March 26, 1976.

OPINIONS BELOW

The opinion of the Court of Appeal of the Second

Appellate District, State of California, filed on March 26, 1976,

is printed as Appendix A hereto.

The opinion on denial of rehearing of the same court,

filed on April 21, 1976, is printed as Appendix B hereto.

oft,

A notification by the California Supreme Court of

denial of hearing in this case, filed May 26, 1976, is printed as

Appendix C hereto.

The order of the Court of Appeal directing that issuance

of the remittitur herein be stayed pending application for the

within writ of certiorari, filed June 25, 1976, is printed as

Appendix D hereto.

JURISDICTION

The Court of Appeal, Second Appellate District, of the

State of California entered judgment in this case on March 26,

1976. A timely petition for rehearing was filed, and on April

21, 1976, the Court of Appeal issued its opinion on denial of

rehearing. A timely petition for hearing was filed with the

Supreme Court of the State of California, and that court on

May 26, 1976, entered its order denying the petition for hearing

Issuance of remittitur in the matter has been stayed by order of

the Court of Appeal filed June 25, 1976.

The jurisdiction of this Court is invoked under Title 28

U.S.C. section 1257(3).

QUESTIONS PRESENTED

|

Whether clarifying questions may be asked of a suspect

after he has made a conditional invocation of his right to remain

silent?

Whether, after a suspect’s condition on his waiver is

met, interrogation may resume?

eis

CONSTITUTIONAL PROVISION INVOLVED

The constitutional provision which the present case in-

volves is the Fifth Amendment to the United States Constitution.

The Fifth Amendment provides as follows:

“No person shall be held to answer for a

capital, or otherwise infamous crime,

unless on a presentment of indictment

of a grand jury, except in cases arising

in the land or naval forces, or in the

militia, when an actual service in time

of war or public danger; nor shall a

person be subject for the same offense

or twice be put in jeopardy of life or

limb; nor shall be compelled in any

criminal case to be a witness against

himself, nor be deprived of life,

liberty, or property, or that due

process of law; nor shall private

property be taken for public use,

without just compensation.”

STATEMENT OF THE CASE

A. Lower State Court Proceedings

By information filed August 23, 1974, the District

Attorney of Los Angeles County accused respondent and two

others of murder in violation of Penal Code section 187, in-

cluding a use allegation, and in Count Two accused respondent

and two others of attempted robbery in violation of Penal Code

sections 664 and 211, again with a use allegation. (C.T. 1-2.) 1

V C.T. refers to the Clerk’s Transcript of proceedings in

this matter.

ee

That day respondent was arraigned on the information, entered

pleas of not guilty to the charges, and denied the use allegation.

c.v. 3.

Respondent’s motion to sever his trial was granted on

October 8, 1974. (C.T. 7.) The matter was called for trial on

February 26, 1975. (C.T. 11.)

On February 28, 1975, respondent’s motion outside the

presence of the jury to exclude certain statements of respondent

was argued and denied. (C.T. 13.) On March 3, 1975, trial com-

menced. (C.T. 14.)

On March 14, 1975, the jury returned verdicts finding

respondent guilty of murder, fixing the degree thereof as second

degree, and finding it to be true that respondent used a handgun

at the time of commission of the offense. (C.T. 96.) On April

25, 1975, respondent’s motion for new trial was denied, proba-

tion was denied, and respondent was sentenced to state prison

for the term prescribed by law. (C.T. 99.) Timely notice of

appeal was filed. (C.T. 100.)

B. State Appellate Proceedings

The matter was argued on March 17, 1976, before

Division Three of the Court of Appeal, Second Appellate

District, State of California. The opinion of that court reversing

the case was filed on March 26, 1976. (App. A.)

A petition for rehearing was filed, and on April 21, 1976,

the Court of Appeal filed its opinion on denial of rehearing.

Justice Allport, who had concurred in the original opinion,

dissented from the denial of rehearing. (App. B.)

A petition for hearing was filed in the California Supreme

Court, and on May 26, 1976, that court entered its order denying

a hearing in the matter. (App. C.)

’

a ®

By order filed June 25, 1976, the Court of Appeal

directed issuance of the remittitur in this case be stayed pending

filing of the within application for writ of certiorari. (App. D.)

FACTUAL STATEMENT

On June 8, 1974, Donald Darrel Bays lived in Space 4

at a trailer park on Normandie Avenue in Los Angeles. The

manager of the park, Helen Godwin, saw Mr. Bays about a

quarter to twelve in the morning of that day. (R.T. 279, 282.) 2/

Shortly after noon, Mrs. Godwin and Hermann Buettner,

another resident of the trailer park, saw two black girls enter

the park, go to Darrel Bays’ trailer, and enter. Mrs. Godwin’s

attention was directed at the girls because they were strangers

and because they were blacks in a Caucasian area. (R.T. 281-

282, 313.)

Three or four minutes later two black men came into

the trailer park, went to Darrel Bays’ trailer, and entered it.

Both Mrs. Godwin and Mr. Buettner identified respondent as

one of the men. (R.T. 284-285, 314-315.) Shortly after Mobbs,

and his companion entered Darrel Bays’ trailer, the two girls

came out quickly and left the park. (R.T. 285, 316.)

After the girls left the park, Mr. Buettner heard voices

in Darrel Bays’ trailer, and then heard a shot. (R.T. 316.) Mr.

Buettner saw respondent and his companion, Reece Sowells,

leave the trailer. Reece Sowells was putting a handgun away in

his waistband. Mrs. Godwin also saw the two men leaving the

park, and noticed that one of them broke into arun. (R.T.

286-287, 318.)

2/ R.T. refers to the Reporter’s Transcript of proceedings

in this matter.

. ©

Mr. Buettner went and got Mrs. Godwin and the two of

them went to trailer number four. Mr. Buettner went inside,

and saw Darrel Bays lying on his stomach in the bedroom. Mr.

Bays’ hands were tied behind his back and his feet were tied

together with nylon stockings or panty hose. Mr. Buettner

shook Mr. Bays’ feet to see if he was still alive, and upon looking

closer observed a hole in the decedent’s shirt in the area of the

neck. Mr. Buettner then left the trailer and called the authori-

ties. (R.T. 289-290, 319-320, 323.)

Robert Kummelehne, a Los Angeles County fireman

paramedic, arrived on the scene and observed Mr. Bays face

down on the bed tied hand and foot. Bays was unconscious

and not breathing, although he had a faint pulse. Bays’ nose

and mouth were submerged in a pool of blood, which prevented

his breathing. Efforts to revive Bays, however, failed. (R.T.

295-297, 301-303.)

Darrel Bays died from a gunshot wound which severed

the cervical spinal cord. (R.T. 254.) In the opinion of the

medical examiner the muzzle of the gun was pressed up against

the back of the shirt collar when the gun was fired. (R.T. 261.)

It was stipulated at trial that Pamela Williams was tele-

phoned at Mobb’s house and was solicited by the decedent,

Darrel Bays, for an act of prostitution to take place at che

trailer. Pamela Williams and another girl, Desiree Charbonnet,

went to the trailer together. (R.T. 429.)

Respondent was arrested on lune 22, 1974, by Sergeant

Michael Nelson and Deputy Ronald Ablott of the Los Angeles

County Sheriff’s Office. (R.T. 345-347.) While enroute to the

Hall of Justice, Sergeant Nelson warned respondent of his con-

stitutional rights, and Mobbs indicated he understood them

and waived them. (R.T. 348.)

. -

In the police vehicle respondent stated on June 8 he had

received a telephone call at his home from Darrel Bays, and Bays

had asked for “Peaches,” or Pamela Williams, Mobbs’ girlfriend.

After the phone call Mobbs, Reece Sowells, Pam Williams, and

Desiree Charbonnet went to the trailer park. (R.T. 349.)

A short while after the girls went into the trailer, respond-

ent and Reece had entered the trailer and told the girls to leave.

Respondent had with him some nylon stockings he had obtained

from the trash and had a gun with him he had found near his

home. Mobb’s intention at the time was to scare Bays to pre-

vent him from calling asking for Pam anymore. Mobbs admitted

pointing a gun at Bays, and telling him to lie on his stomach.

(R.T. 350.)

Respondent gave the gun to Reece Sowells to hold while

Mobbs tied Bays up. After tying Bays up, respondent placed

the muzzel of the gun in the back of the victim’s head. Bays

continued “running off at the mouth,” and according to respond-

ent, Reece Sowells slapped Bays, causing Bays to jerk his head

back, at which time the gun discharged. (R.T. 350.)

Mobbs further related he and Reece then left the loca-

tion, with Reece panicking and running, while respondent

walked out slowly. They returned to the car, picked up the

girls, and drove away. Mobbs claimed to have thrown the gun

out of the car during this trip. (R.T. 350-351.)

At the Hall of Justice Mobbs was again given a complete

advisement of his Miranda rights. He indicated, however, he

did not wish to discuss the case ‘“‘right now.”” It was determined

that respondent wished to telephone his home before continuing

to talk about the matter. (R.T. 64-65.) The interview then

ceased to permit Mobbs to call his home. (R.T. 34.)

Respondent telephoned his home. Officer Nelson,

seated to the right of Mobbs and in his view, listened to this

-8-

conversation on an extension. Talking to his brother, respondent

said: ‘What should | do?’”’ Mobbs’ brother replied: “You done

did it.” Mobbs stated: “It was an accident. | did it.”” Respond-

ent’s brother asked: “Did you kill him?” Mobbs replied: ‘‘The

way it happened was an accident.” (R.T. 431-433.)

Following the telephone conversation with his brother,

respondent was again advised of his rights, and stated he was

now willing to talk. (R.T. 39.) Mobbs then made a tape recorded

statement. This statement was essentially identical to the nar-

ration of events he had recounted in the police vehicle on the

way to the Hall of Justice. (R.T. 363-365.) This tape recorded

statement was played for the jury following testimony as to

Mobbs’ statement in the automobile. (R.T. 355.)

SUMMARY OF ARGUMENT

The California Court of Appeals, relying on Miranda v.

Arizona, 384 U.S. 436 (1966), as interpreted by the California

Supreme Court, ruled that a police officer’s attempt to clarify

statements by a defendant concerning his willingness to talk

was improper. Further, the court, again relying on an interpre-

tation of Miranda v. Arizona, held it was improper to interrogate

the defendant after his condition upon interrogation had been

fulfilled.

Petitioner submits these rulings do nothing to further

the purpose sought to be achieved by Miranda. The Miranda

rule is intended to insure an accused would be fully and effec-

tively advised of his rights in order to counterbalance the

pressures of custodial interrogation. Questioning which seeks

to clarify an assertion of right, however, has nothing whatso-

ever to do with self-incrimination. Furthermore, an interpretation

of Miranda which bars all further contact with a defendant, even

when that is not what is desired by the defendant, is an absurdity

unsupported by Miranda or any legitimate purpose sought to be

served in the protection of a defendant’s rights.

ole

Petitioner in this case contends no more than (1) ques-

tions seeking to clarify an ambiguous assertion of right are proper

and (2) where a conditional waiver is made by a defendant, law

enforcement officers may properly resume interrogation when

the condition is fulfilled, particularly where, as here, the Miranda

warnings are again administered and a fresh waiver is obtained

from the defendant.

The holding of the California Court of Appeals elevates

the interrogation process to a level of legal complexity matched,

if at all, only by the Rule against Perpetuities. Police officers,

engaged in the investigation of the crime, should not be trapped

by linguistic legerdemain. Respondent in this case, after being

advised of his rights, wished to make a telephone call before he

talked. He made the telephone call. He was again advised of

his rights. He then talked. Nothing in the least reprehensible

appears in any of the police contacts with respondent. Reversal

of the decision below would in no manner diminish the rights

accorded an accused, but would rather support reason and the

understanding of the parties below as well as the efficient in-

vestigation of crime.

_ =

ARGUMENT

l

CLARIFYING QUESTIONS MAY BE

ASKED OF THE SUSPECT AFTER HE

HAS MADE AN AMBIGUOUS INDICATION

OF HIS RIGHT TO REMAIN SILENT

The central issue in this proceeding revolves around the

constitutional implications of a brief exchange between respond-

ent and a sheriff's deputy following their arrival at the Hall of

Justice. As noted above, respondent had related to the officers

while in the police vehicle a somewhat damaging statement,

although claiming the shooting to have been accidental. At the

Hall of Justice respondent was read a complete statement of

his rights. The following then occurred:

“Q. Do you understand each of the

rights explained to you?

“A. Yes.

“Q. Do you want to talk about this

case or not?

“A. Not right now.

“Q. Well now, a few moments ago

when we were in the car and when

we were talking here, you were pre-

viously advised of your rights and

you stated that you did want to

talk about it. Have you changed

your mind or do you want to get

this off your chest?

“A. Changed my mind.

~ -

“A. Pardon me?

“A. Changed my mind.

“Q. Can you tell us why?

A. ‘Cause | want to talk to two people.

“Q. Who do you want to talk to?

“A. My mother and Pam [Williams] .”

(Opinion, pp. 5-6, fn. 2.)

The opinion and the opinion on denial of rehearing of

the Court of Appeals in this matter is fundamentally erroneous.

In the opinion on denial of rehearing, the Court of Appeals

Stated:

“. .. The Miranda violation occurred in

taking the taped confession of appellant

after he had twice informed his inter-

rogators that he had changed his mind

about talking to them. Further

inquiries by them should have ceased

at that point.” (Opinion on denial of

rehearing, p. 1.)

The problem here is that confusion between the asking

of clarifying questions and interrogation, that is, a process of

questioning designed to elicit incriminating statements. Respond-

ent had given the officers a statement in the police vehicle.

When asked if he wished to talk about the case with a tape

recorder present, he replied “Not right now.” The officers,

understandably confused, sought to clarify this. The ambiguity

of the “‘not right now” statement was clarified when respondent

stated that he first wished to talk to two people.

-12-

None of this conversation has anything whatsoever to

do with interrogation, which would indeed be forbidden after

the invocation of the right to remain silent, however temporarily.

An assertion of Miranda rights does not, however, mean a com-

plete prohibition on any verbal transaction whatsoever between

police and a defendant. Rather, custodial interrogation may not

be carried out in violation of such an assertion of right. Nothing

of the sort appears in the transaction quoted above.

Because the Court of Appeals below confused the dis-

tinction between questioning unrelated to criminal activity and

interrogation designed to elicit incriminating statements, there

was no violation of Miranda in the officers’ attempts to deter-

mine whether and to what extent appellant was invoking his

right to remain silent. United States v. Menichino, 497 F.2d

935, 941 (Sth Cir. 1974).

<

AFTER A SUSPECT’S CONDITIONAL

WAIVER IS SATISFIED, INTERROGATION

MAY PROPERLY RESUME

Further constitutional confusion is evidenced by the

statement in the opinion of the Court of Appeals that“...

Because the taped confession which followed the coloquy we

have just analyzed was obtained after [Mobbs] communicated

his desire to remain silent, it was error to admit the recording

in ev'dence.”’ (Opinion, p. 7.) Also, in the opinion on denial

of the rehearing, the Court of Appeals states ‘‘Further inquiries

by [the officers] should have ceased at that point.”’ (Opinion

on denial of rehearing, p. 1.)

In other words, the holding of the Court of Appeals is

that after Mobbs communicated to the officers his desire to

remain silent they could not interrogate him. The People agree

completely with this position, adding only one small caveat:

For what period of time? Does an invocation of right such as

the present one forbid any contact with persons such as respond-

ent by police authorities at any time on any date in connection

with any matter? Or is an invocation of right to be respected

according to its terms? The latter, of course, is the correct

interpretation of Miranda.

The Miranda decision itself made this clear. Invocation

of the right to an attorney, for example, simply prevents the

police from pursuing further inquiries until the defendant

“.. has consulted with an attorney and thereafter consents to

be questioned.” Miranda v. Arizona, 384 U.S. 436 (1966). In

other words, an invocation of right must be respected according

to its terms. A literalist and extreme interpretation of Miranda

is not required by the terms of that decision.

~'*

A recent opinion by this Court underlines the validity

of this proposition. Michigan v. Mosley, 423 U.S. 96 (1975),

is of great assistance in elucidating Miranda. \n that case the

defendant was questioned by a police officer with respect to a

robbery, and indicated he did not wish to discuss the matter.

Interrogation thereupon ceased. Shortly thereafter another

detective, from the homicide detail, again gave the defendant

his Miranda rights, following which appellant discussed his

participation in a murder. The question before this Court was

the interpretation of the passage in the Miranda decision to the

effect interrogation must cease when the person in custody

indicates he wishes to remain silent. 423 U.S. 101-103.

This Court noted that the Miranda decision itself would

permit resumed questioning after a suspect had obtained an

attorney if the attorney was then present. The Court observed,

however, this procedure was not decisive of the question before

them, as Mosley did not request an attorney. 423 U.S. 101,

n. 7. This Court pointed out a literalist interpretation of Miranda

would prohibit ever questioning a person who had invoked his

right to silence at any time or place or upon any subject. After

characterizing this as an absurd and unintended result, the Court

noted “. . . the vast majority of federal and state courts pre-

sented with the issue have concluded that the Miranda opinion

does not create a per se proscription of any further interrogation

once the person being questioned has indicated a desire to re-

main silent. [Citations.]”” 423 U.S. 103, n. 9.

This Court determined in the circumstances of the

Mosley case the defendant’s right to cut off questioning had

been fully respected. As the Court pointed out,

“This is not a case, therefore, where the

police failed to honor a decision of a

person in custody to cut off question-

ing, either by refusing to discontinue

the interrogation upon request or by

~ 2

persisting in repeated efforts to wear

down his resistance and make him

change his mind. In contrast to such

practices, the police here immediately

ceased the interrogation, resumed

questioning only after the passage

of a significant period of time and

the provision of a fresh set of warnings,

and restricted the second interrogation

to a crime that had not been a subject

of the earlier interrogation.”” 423 U.S.

105-106.

In conclusion, the Court found the provision of warnings

at the outset of interrogation, the suspension of questioning in

accordance with the defendant’s wishes, and the lack of any

overbearing conduct combined to support admission of the

incriminating statement obtained. 423 U.S. 106-107.

The central teaching to be derived from Mos/ey is that,

in determining whether an individual who has once invoked his

right to silence may thereafter be questioned, the entire circum-

stances of the affair should be looked at. Tested by these

principles, respondent Mobbs’ provisional invocation of his

right to remain silent, that is, conditioning it upon the making

of a telephone call, was fully respected. Interrogation ceased

at that point, and Mobbs was again reminded of his rights fol-

lowing completion of the telephone call, indicating he then

wished to discuss the matter. (R.T. 34, 39.) On this record

there is no reason to even suspect a Miranda violation as that

decision is construed by this Court.

The present matter falls squarely within the legal princi-

ples enunciated above. The practicality of the application of

these principles to this matter is perhaps best illustrated by way

of an example: After being advised of his rights and indicating

he understands them, a defendant is asked whether he wishes

5

to discuss the matter. He replies “Not until | get a pack of

cigarettes.”” The police cease interrogation, procure a pack of

cigarettes, and furnish them to the suspect. Questioning then

resumes, preceded by a reminder of the suspect’s rights. Does

such a procedure violate Miranda? The answer, of course, must

be no.

That is precisely the situation in the present case. The

discussion between respondent and the officers set forth in

footnote two of the court’s opinion (opinion p. 5) may be sum-

marized as follows: Mobbs was willing to speak to the officers,

but only after he communicated with his family. This was in

fact the way the conversation was interpreted by one of the

participants. (R.T. 89.) The validity of this interpretation is

supported by the fact Mobbs, upon having his condition pre-

cedent to sneaking with the officers fulfilled, proceeded to

make a statement without coercion or harrassment of any kind

being practiced upon him, and after again having been informed

of his rights.

The entire matter was the subject of lengthy and extensive

hearings in the trial court. Following these hearings, the trial

court found Mobbs was properly advised of his constitutional

rights, properly waived them, freely and voluntarily made the

statements in question, and was not subjected to any improper

police conduct. (R.T. 203.) The trial court specifically found

Mobbs’ taped statement was a product of his own psychological

makeup and contributing factors other than police interrogation.

One of these contributing factors was the fulfillment of ‘““Mobbs’”

condition on his speaking with the officers, that is, the making

of a phone call. Specifically, the court found his taped statement

was properly admissible because (1) there had been an earlier

statement to the same effect, (2) Mobbs was aware a participant

in the proceedings had placed him at the scene of the crime, (3)

having previously incriminated himself he was disposed to reiterate

his version of events, (4) Mobbs’ conversation with his brother

«Ms

contributed to his determination to give a statement to Officer

Nelson, (5) his knowledge of his conversation with his brother

had been overheard by Officer Nelson further contributed to

his resolve to discuss the matter, (6) the manner of questioning

was absolutely non-coercive, (7) there was no request to see an

attorney, and (8) the testimony of all the witnesses, all the

documents, and the entire record before court supported this

conclusion. (R.T. 203-206.)

Petitioner has seldom seen a record in which the trial

judge displayed as clear an awareness of the issues and the mat-

ters necessary to resolve them as in the present case. By no

stretch of the imagination is this a situation in which the burden

of proof on the People to show a waiver of constitutional rights

was not met. Compare People v. Parker, 45 Cal.App.3d 24, 29

(1975).

The present matter is thus distinguishable from People

v. Superior Court (Zolnay), 15 Cal.3d 729, 737 (1975), where

the California Supreme Court found a confession after the

assertion of the privilege was e/icited by police questioning. In

the present case, the trial judge found Mobbs’statement after

fulfillment of his condition precedent to speaking was motivated

by factors other than the officers’ questioning. (R.T. 203-206.)

Because the holding of the Court of Appeals, contrary to the

reasoning of the trial court, misapplies the Miranda principles

as enunciated by this Court, the opinion of the Court of Appeals

was in error, and no constitutional violation whatsoever occurred

in this case.

~

CONCLUSION

Wherefore, petitioner concludes that this Court should

grant certiorari to resolve these questions of overwhelming

importance to the bench, the bar, law enforcement, and the

public as a whole.

Respectfully submitted,

Kant J. Pheak,

EVELLE J. YOUNGER, Attorney General

JACK R. WINKLER, Chief Assistant

Attorney General -- Criminal Division

DANIEL J. KREMER,

Assistant Attorney General

JAY M. BLOOM,

Deputy Attorney General

KARL J. PHALER,

Deputy Attorney General

APPENDIX A

A-i

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE OF THE STATE

OF CALIFORNIA,

2D CRIM. NO. 27437

Sup. Ct. No. A-607928

)

)

)

Plaintiff and Respondent,

v.

OTHA LEE MOBBS,

)

)

)

)

Defendant and Appellant,

APPEAL from a Judgment of the Superior Court of Los

Angeles County. Carlos E. Velarde, Judge. Reversed.

Block and Cohen and Seymour |. Cohen, under appoint-

ment by the Court of Appeal, for Defendant and Appellant.

Evelle J. Younger, Attorney General, Jack R. Winkler,

Chief Assistant Attorney General, Daniel }. Kremer, Assistant

Attorney General, A. Wells Petersen and Karl J. Phaler, Deputy

Attorneys General, for Plaintiff and Respondent.

Otha L. Mobbs appeals from a judgment of conviction

of second degree murder (Pen. Code, § § 187, 189) following

a jury trial. The appeal lies. (Pen. Code, § 1237, subd. (1).)

Appellant urges numerous grounds for the reversal of

his conviction. We have concluded, however, that the single

issue of the admissibility in evidence of a tape recorded

a a

A-2

interrogation of appellant is dispositive of this appeal. Thus we

do not reach appellant’s remaining contentions. Because the

use of the tape recording at trial was a prejudicial abridgement

of appellant’s federal and state constitutional protection against

self-incrimination, we will reverse his conviction.

STATEMENT OF FACTS L/

On June 8, 1974, Donald Bays called appellant’s home

and told appellant he wished to speak to appellant’s girl friend,

Pam Williams. Williams in the past had performed acts of pro-

stitution with, and received payment from, Bays. Appellant

was aware of but tried to discourage his girl friend’s conduct.

As a result of the phone call, Williams agreed to go to Bays’

residence to perform an act of prostitution. Appellant, Williams

and two of their acquaintances, Reece Sowells and Desiree

Charbonnet, drove in Sowells’ car to Bays’ trailer park home.

Sowells parked the car a short distance from the trailer

park, and the girls entered Bays’ trailer. Moments later, the

two men left the car and also went into the trailer. Once inside,

they told the girls to get out. Appellant brandished a handgun,

ordered Bays to lie on the bed, and told Sowells to tie the

victim’s hands and feet with nylon stockings appellant had

brought with him for that purpose.

Bays at one point protested and uttered profanities at

his two attackers. Sowells slapped him, his head jerked back

against the cocked gun which appellant had trained upon him,

and the gun discharged. Bays died of the single wound. Appel-

lant and Sowells ran from the trailer immediately after the

incident.

1/ We construe all conflicting evidence in the light most

favorable to the People as the prevailing party below. (See

People v. Vann, 12 Cal.3d 220, 225.)

A-3

Appellant called Sowells as a hostile witness in his de-

fense. Sowells testified that Bays said nothing, that appellant

had struck the victim, and that at the time the gun discharged,

both Sowells and appellant “had ahold” of it. Appellant’s trial

counsel impeached this testimony by introducing a prior state-

ment of Sowells that he alone was holding the gun when it

“accidentally” went off.

Appellant testified in his own behalf that Sowells brought

the gun into the trailer, that appellant discovered Bays with his

arm around Pam Williams and Bays’ trousers unzipped, that

appellant tied the victim up with stockings found on the bed

while Sowells held the gun, and that when Bays insulted him

appellant struck Bays causing his head to hit the gun.

DISCUSSION

!. The Admissibility of Appellant’s Oral and Taped Confessions

According to the testimony of deputy sheriffs, appellant

twice gave detailed answers to their questions about Bays’ death.

The first confession occurred after appellant’s arrest while he

was being driven to the Hall of Justice. The second was tape

recorded there. Appellant contends that on both occasions,

statements were obtained from him in violation of Miranda v.

Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] , and People v.

Fioritto, 68 Cal.2d 714.

There is substantial evidence to support the trial court’s

conclusion as to the legality of the patrol car confession. Both

deputies testified that they advised appellant of his constitutional

rights and obtained valid waivers of those rights before appellant

made any statements. The trial court’s finding on this issue will

not be disturbed on appeal unless it is clearly erroneous. (See

People v. Rodriguez, 256 Cal.App.2d 663, 668-670.)

A-4

The admission in evidence of the second, recorded con-

fession, however, was erroneous. To assist in explaining our

conclusion, we reproduce below a transcript of the relevant

portions of the recording. 2/ Appellant’s first indication that

he no longer wanted to talk to the deputies (“Not right now”)

was somewhat ambiguous and conditional. Appellant’s

2/ [Preliminarily, one deputy asked appellant his name and

read to him a complete statement of the rights accorded him

under the Miranda decision. |

“Q. Do you understand each of the rights explained to

you?

A. Yes.

“Q. Do you want to talk about this case or not?

A. Not right now.

Q. Well now, a few moments ago when wer were in the

car and when we were talking here, you were previously advised

of your rights and you stated that you did want to talk about it.

Have you changed your mind or do you want to get this off your

chest?

A. Changed my mind.

“Q. Pardon me?

A. Changed my mind.

Q. Can you tell us why?

“A. ‘Cause | want to talk to two people.

Q. Who do you want to talk to?

A. My mother and Pam [Williams] .”

[Appellant then telephoned his home and spoke with his younger

brother. Evidence of this incriminating conversation, which was

overheard by deputies, was not introduced at trial. Following

the call, the deputy resumed the interrogation and obtained

appellant’s confession. |

A-5S

interrogators could properly seek clarification of his confusing

assertion of constitutional rights. 3/ (See People v. Turnage,

45 Cal.App.3d 201. 211 , and People v. Brashier, 271 Cal.App.2d

298, 302.)

Despite this opening ambiguity, appellant's response

(“Changed my mind”) to the deputy’s next question was a rea-

sonably clear indication, stated twice, that he did not wish to

speak further with the officers. The fact that shortly before he

may have been willing to talk is irrelevant. As our Supreme

Court has recently stated, the mandate of Miranda regarding

the invocation of constitutional rights is “broad” and may be

indicated by a suspect “in any manner and at any state of the

process.”’ The decision need not be made with “unmistakable

clarity.” (Emphasis original.) (People v. Superior Court (Zolnay),

15 Cal.3d 729, 735-736, in part quoting Miranda v. Arizona,

supra, 384 U.S. at 444-445 [16 L.Ed.2d at 707].)

We fail to see how the deputies interrogating appellant

could have understood appellant’s statement of change of mind

as anything other than a decision thereafter to remain silent.

3/ The deputy’s next question (“Have you changed your

mind or do you want to get this off your chest?’’), however,

failed to seek the appropriate clarification. (Cf. People v. Fisher,

49 Cal.App.3d 174, 179.) Instead it was couched in terms ofa

strong moral exhortation. While this type of remark may not

render a subsequent confession involuntary (see People v. Hill,

66 Cal.2d 536, 549), we think it is clearly contrary to the inten-

tion stated in Miranda v. Arizona, supra, that a suspect must be

informed of his constitutional rights in “clear and unequivocal

terms.”’ (384 U.S. at 468 [16 L.Ed.2d at 720] ; cf. People. v.

Russell, 259 Cal.App.2d 637, 645-646.)

A-6

Indeed, the deputy’s next question to appellant (‘““Why?”’)

demonstrates that the interrogator did comprehend appellant’s

meaning. Because the taped confession which followed the

colloquy we have just analyzed was obtained after appellant

communicated his desire to remain silent, it was error to admit

the recording in evidence. (See People v. Burton, 6 Cal.3d 375,

384.)

11. Was the Erroneous Admission of the Tape Recording

Prejudicial?

The use at trial of an improperly obtained confession is

usually reversible error per se. (People v. Fioritto, supra, 68

Cal.2d at 720.) This may not be the result, however, if the

defendant has made multiple confessions, at least one of which

was properly admitted in evidence. (See People v. Jacobson,

63 Cal.2d 319, 330-331.) In order to affirm a conviction based

upon multiple confessions, an appellate court must be satisfied

beyond a reasonable doubt that no result more favorable to

appellant would have occurred had the illegal confession(s) not

been admitted in evidence. (See Chapman v. California (1967)

386 U.S. 18, 24 [17 L.Ed.2d 705, 710].) Such harmless error

is most likely when (1) the proper confession preceded the

improper one in time; (2) the improper confession provided

detail not significantly different from the proper one; and (3)

no undue emphasis was placed at trial upon the improper con-

fession. (See People v. Powell, 67 Cal.2d 32, 53-54.) Obviously,

the first condition was met in the instant case. It is also true

that the deputy sheriff who arrested and twice interrogated

appellant testified that the two confessions were “substantially

identical,” 4/

4/ Indeed, the deputy’s recounting of the patrol car con-

fession bears an uncanny resemblance in chronology and detail

to the contents of the taped confession. While we do not suggest

(Cont’d.)

ee :

A-7

It is the third criterion which we believe makes the intro-

duction of the illegal confession Prejudicial to appellant. We are

not convinced beyond a reasonable doubt that no special empha-

sis was placed upon the taped confession. In reaching this

conclusion, we do no more than observe the emphasis accorded

the taped confession by the prosecutor and the jury. (See

People v. Cruz, 61 Cal.2d 861 , 868.) The prosecutor in his

cross-examination of appellant relied repeatedly on the contents

of the taped transcript for impeachment purposes. 5/ (Cf.

People v. Powell, supra, 67 Cal.2d at 55.) In his closing argument

that the first interrogation was imaginary, we do note that when

appellant told the deputy on tape that he had changed his mind

and did not wish to talk, the deputy did not remind appellant

that he had already confessed -- only that appellant had earlier

expressed a willingness to talk. We also should point out that

the existence of the first confession was not even revealed by

the People until after the jury was impaneled and the taped

confession’s admissibility was under challenge. Appellant him-

self denied making any statements in the patrol car.

As long as the recorded confession was before it, the

jury had no reason to consider seriously the existence of the

first confession. Upon retrial, this issue will be squarely faced.

5/ We offer as examples two extended excerpts.

“Q. All right. When you were talking to the police

officers, you told them that you Carried the nylons in; is that

right?

“A. Yes.

“Q. You didn’t tell them Reece carried the nylons in,

right, because you were trying to protect him?

“A. Yes.

(Cont’d.)

'

A-8 A-9

to the jury, the prosecutor referred on several occasions to inseparable. (Cf. People v. Spencer, 66 Cal.2d 158, 164 (where

“appellant's confession,” apparently considering the two multiple confessions cannot be separated, defendant will be

“Q. And you told them that the gun was in your hand “A. Yes, because at the time they only had Reece or

when it was fired; is that right? Maurice. They didn’t have his last name.

“A. Yes. “Q. They found you, didn’t they?

“Q. And the reason you did that was because you were “A. They still didn’t have him.

trying to protect him? “Q. Page 98, line 3 through line 5:

“A. Yes. ‘Q. Had you taken it back from Maurice then,

“Q. But then on page 94 of your statement at line 22 -- the gun?

Strike that -- at line 20 and following to the end of the page ‘A. Yes. So he was stil! running off at the

were you asked the following questions and did you give the mouth. So Maurice slapped him outside the head

following answers: and when he slapped him outside the head, the

‘Q. Well, | mean you went down there. gun, | guess, | guess it hit the gun. The gun

How did you get there? went off.’

‘A. With Reece.

‘Q. With Reece? Now, is that man’s name That was the question you were asked and the

Maurice or Reece? answer you gave?

‘A. | call him Reece.

‘Q. Have you heard him called anything else? “A. | think so.

‘A. Maurice.’ “Q. You told the police that the gun was caused to

You were trying to protect him by giving the police fire by sametuing thet Maurice did; is that correct?

his name? a Ven.

“A. They didn’t have his whole name. “Q. Now, when you talked to the police officers, was

“Q. Could you turn to page 97, lines 15 through 18. the following question asked and did you give the following

Was the following question asked of you and did you give the answer?

following answer: “Mr. Thomas: What is your reference?

‘Q. Then what happened? “Mr. Levitin: Page 98, counsel, lines 16 and 17.

‘A. | !et Maurice hold the gun. Then | tied ‘Q. Uh-huh, then it is your feeling that you

him up. didn’t really mean to shoot him?

‘Q. Maurice held the gun while you tied him up? ‘A. No, my intentions is to scare him.’

‘A. Uh-huh,’ ! “Q. Is that your answer to the police officers?

Were you trying to protect Maurice or Reece by “A Yes.

telling the police that Reece held the gun? “Q. Is that what you wanted to do?

(Con’t.) (Cont’'d.)

A-10

considered to have made only one confession).) Further exam-

ination of his remarks, however, reveals that he was speaking

“A. | don’t know what | wanted to do.

“Q. Well, when you told the police officers that, were

you lying to them?

“A. Yes.

Q. You wanted to hurt that man, didn’t you?

“A. | don’t know.

Q. Didn’t you want to get even?

A. | don’t know.

“Q. You told the police officers that the gun was in

your hand when the shot was fired, didn’t you?

“A. Yes.

“Q. Now, on page 107 of the transcript beginning at

line 5 the following question was asked, my question to you were

the following questions asked you and the following answers

given by you? Question by Sergeant Nelson.

‘Q. Well, theis concludes the interview except

that | want to ask you just this one thing. Has all

this been freely and voluntarily given by you?

‘A. Yes.

‘Q. Nobody has used any brutality or anything

like that to you; is that right?

‘A. Yes.

‘Q. So, in other word[s] , this is all — getting

it out of your own chest; is that right?

‘A. Yes.

‘Q. Okay. Speak up just a little bit.

‘A. Yes.

‘Q. Have you been treated fairly and so on

since you have been here?

‘A. Yes.’

(Cont’d.)

i ef

A-11

particularly of the taped statement. 6/

Now, when you were asked those questions and you

give those answers, is that what happened? Does that fairly

depict what happened? You were asked those questions and

you gave those answers?

“A. Yes.

“Q. You didn’t say at that time | am trying to protect

Reece, and | am trying to protect Pamela Williams, and | am

taking this whole thing on my chest because | want to proctect

[sic] everybody. You didn’t want to say that?

“A. No, because if | was protecting them like | was, why

should | have brought it up?

“Q. You didn’t tell the police that you went over there

by yourself and did everything all by yourself?

“A. No, they didn’t have no names and addresses et

cetera.

“Q. They had Pamela Wiliiams, didn’t they?

“A. That is all they had.

“Q. You didn’t say | went there by myself?

“A. No, | didn’t.

“MR. LEVITIN: | have no further questions.”

6/ We nave reproduced below three of the most emphatic

references to the taped confession.

1. “I think one of the most important pieces of

evidence in this case .. is the evidence which is produced as

a result of talking to the defendant Mr. Otha Mobbs. Now on

June the 22nd of 1974, Mr. Otha Mobbs spoke on tape and

before that in the car, nolice car, to Sergeant Nelson. Sergeant

Nelson testified that . .. when [appellant] got to that location

he followed, those were his words, they appear on the tape, he

followed Pamela Williams to see where she was going.”

(Cont’d.)

A-12

The jury also placed considerably greater emphasis on

the taped statement than on the fleeting testimony of the deputy.

We need not speculate on this point because the record reveals

that during the jury’s deliberations, it requested and received

permission to play the tape. There were no requests to review

the deputy’s testimony. The jury’s preference for the tape is

hardly surprising. “lE]vidence, from the lips of the third per-

sons, is trifling when compared with the impact of hearing the

defendant’s own voice. ... The impact of the tape [ recording]

cannot be calculated.” (People v, Jacobson, supra, 63 Cal.2d

at 342 (Peters, J., dissenting).)

While Justice Peters’ viewpoint did not prevail in People

v. Jacobson, that was a pre-Chapman decision which cited both

People v. Watson, 46 Cal.2d 818, 836 (error more likely than

not contributed to conviction) and Fahy v. Connecticut (1963)

375 U.S. 85, 86-87 [11 L.Ed.2d 171, 173] (“reasonable pos-

sibility” that error might have contributed to the conviction).

More importantly, the defendant in /acobson provided the

Prosecution with no less than eight valid confessions. (See

also People y. Neustice, 24 Cal.App.3d 178, 183-186, 188.)

In the instant case, the jury was given only two confessions.

The People called no eyewitnesses to the events inside the

2. “Well, you are going to have an opportunity to

have that confession, the tape recorded version of that confes-

sion in chambers, and you will have an opportunity to listen

to it.... Howcan anybody say that that confession is un-

reliable? That confession is the crux of this case.”’

3. “The only explanation of what they were doing

there, the only explanation, that is the one that is found in his,

the defendant’s confession. That explains it.”’

a mnt

A-13

trailer. We think it accurate to state that the taped confession,

by its form and use at appellant’s trial, received substantially

greater emphasis than the oral confession. 2/ Thus its admission

in evidence was prejudicial and requires reversal of appellant’s

conviction. (Cf. People v. Disbrow, 16 Cal.3d 101, 116.)

DISPOSITION

The judgment is reversed.

COBEY, Acting P.}.

We concur:

ALLPORT, J.

POTTER, J.

1/ In People v. Valencia, 267 Cal.App.2d 620, this court

determined that the erroneous admission of an illegal taped

confession was harmless because there were two proper confes-

sions placed before the jury and because the independent

evidence of the defendant’s guilt was “overwhelming.” (/d. at

627-628.) The Valencia decision gave no consideration to the

special evidentiary impact of a taped confession as opposed to

a single confession presented through hearsay testimony. This

distinction makes the taped confession more than merely cumu-

lative to a single oral confession. As our Supreme Court said

in People v. Quicke, 71 Cal.2d 502, at 516, in order for the

harmless error rule to apply in multiple confession cases, “It}he

properly admitted confession must nullify any ancillary effect

of the improperly admitted confession.” While the present

case is admittedly a close one, we cannot say beyond a reason-

able doubt that such nullification occurred.

APPENDIX B

B-1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE OF THE STATE 2D Crim. No. 27437

OF CALIFORNIA,

Plaintiff and Respondent,

v.

OTHA LEE MOBBS,

Defendant and Appellant.

we OO OT OTE Oi Oe eee

OPINION ON DENIAL OF REHEARING

We are denying the People’s petition for rehearing for

the following reasons. The Miranda violation occurred in taking

the taped confession of appellant after he had twice informed

his interrogators that he had changed his mind about talking to

them. Further inquiries by them should have ceased at that

point. (See People v. Fioritto, supra, 68 Cal.2d 714,719.) The

fact that immediately thereafter appellant made what the

People have construed as a conditional offer to talk is irrelevant.

Neither appellant’s testimony nor that of his confederate

at trial may be considered by us in determining whether we have

a reasonable doubt as to whether appellant would have been

convicted of the same crime without the improperly admitted

taped confession. We say this because the People have not

B-2

shown that the testimony of these individuals was not impelled

by the People’s prior improper introduction of appellant’s taped

confession. (See People v. Spencer, supra, 66 Cal.2d 158, 168.)

Furthermore, in view of the special reliance upon the

improperly admitted taped confession displayed by the prosecu-

tor and the jury, as noted at some length in our original Opinion,

we are unable to say that we are convinced beyond a reasonable

doubt that appellant would have been convicted on the basis

essentially of his properly admitted prior oral confession.

The People’s petition for rehearing is denied.

APPENDIX C

COBEY, Acting P.}.

| concur:

POTTER, J.

| dissent. | would grant rehearing.

ALLPORT, }.

C-1

ICE, SUPREME COURT

STATE BUILDING

a /

“Fe , CALIFORNIA 94102

_ People

bs.

a Mobbs

Respectfully,

G. E. BISHEL

Clerk

95965-677 7.75 3m OSPF

—

APPENDIX

D-1

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE OF THE STATE 2d Crim. No. 27437

OF CALIFORNIA,

(Sup. Ct.No. A-607928)

Plaintiff and Respondent,

v.

)

)

)

)

)

|

OTHA LEE MOBBS,

)

Defendant and Appellant.

THE COURT:

Upon consideration of the motion of plaintiff and

respondent for stay of issuance of remittitur, which motion

was filed herein on June 21, 1976, and good cause appearing

therefor, it is ordered as follows:

The issuance of the remittitur herein is stayed for a

period of 90 days from the date of this order to enable plaintiff

and respondent to petition the Supreme Court of the United

States for a writ of certiorari. In the event such petition is

docketed in the Clerk’s office of the Supreme Court of the

United States within said period of time, then »e remittitur

of this court shall be stayed until the Supreme Court of the

United States has passed upon said petition and notice thereof

has been received by this court.