Petition — California v. Prysock

Supreme Court brief1981

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80-1846 MAY 1 1981

ALEXANDER L. STEVAS,

CLERK

No. 80-

IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1980

PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

RANDALL JAMES PRYSOCK, ~

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA,

FIFTH APPELLATE DISTRICT

GEORGE DEUKMEJIAN, Attorney

General of the State of

California —

ROBERT H. PHILIBOSIAN, Chief

Assistant Attorney General,

Criminal Division

ARNOLD 0. OVEROYE

Assistant Attorney General

CARLA J. CARUSO

Deputy Attorney General

EDDIE T. KELLER

Deputy Attorney General

555 Capitol Mall, Suite 350

Sacramento, California 95814

Telephone: (916) 445-0581

Attorneys for Petitioner

QUESTION PRESENTED

Should respondent's voluntary

confession be suppressed because he was

advised of his constitutional rights

in language which conveyed all essential

information but was not phrased in pre-

cisely the same manner as the standard

language of Miranda v. Arizona (1966)

384 U.S. 436?

TABLE OF CONTENTS

QUESTION PRESENTED

OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS

INVOLVED

STATEMENT OF THE CASE

A. Proceedings in the

State Court

B. Statement of the Facts

ARGUMENT :

RESPONDENT WAS PROPERLY

ADVISED OF HIS CONSTITU-

TIONAL RIGHTS IN LANGUAGE

WHICH CONVEYED ALL ESSEN-

TIAL INFORMATION, AND HIS

CONFESSION IS ADMISSIBLE

CONCLUSION

TABLE OF AUTHORITIES

Cases: Page |

Camacho v. United States

(9th Circuit 1969)

407. 7.26 39, 42, 2. 2

cert. den. 396 U.S. 944,

90 S.Ct. 380, 24 L.Ed.2d 245 14

Coyote v. United States

(10th Circuit 1967)

380 F.2d 305

cert. den. 404 U.S. 864,

92 S.Ct. 44, 30 L.Ed.2d 107. 13,18-19

Evans v. Swenson

(8th Circuit 1972)

455 F.2d 291

cert. den. 408 J.S. 929,

92 S.Ct. 2508, 33 L.Ed.2d 342 19-20

Fare v. Michael C.

(1979) 442 U.S. 707

99 S.Ct. 2560, 61 L.Ed.2d 197 15-16

Miranda v. Arizona

(1966) 384 U.S. 436

88 S.Ct. 1602, 16 L.Ed.2d 694 Passim

Rhode Island v. Innis

(1980) 446 U.S. 291

100 §.Ct. 1682, 64 L.Ed.2d 297 12-13

' Tucker v. United States

(8th Circuit 1967)

375 F.2d 363

cert. den. 389 U.S. 888,

88 S.Ct. 128, 19 L.Ed.2d 189 14

TABLE OF AUTHORITIES

(continued)

Cases: . Page

United States v. Nixon

(1974) 418 U.S. 683

94 §.Ct. 3090, 41 L.Ed.2d 1039 21,22

United States v. Noa

(9th Circuit 1971)

443 F.2d 144 20

United States v. Vanterpool

(2d Circuit 1968)

394 F.2d 697 14

Codes:

28 United States Code,

§ 1257(3) 3

Constitutions:

United States Constitution

Fourteenth Amendment :

4,11

Miscellaneous:

California Rules of Court,

Rules 24(a) 2

28 2

iv.

No. 80-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

PEOPLE OF THE STATE OF CALIFORNIA,

)

Petitioner, ;

v. .

RANDALL JAMES PRYSOCK, ;

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA,

FIFTH APPELLATE DISTRICT

OPINION BELOW

The Opinion of the California Court

of Appeal, Fifth Appellate District, an un-

published 1980 decision numbered 5 Crim.

4051, appears as Appendix "A" to this

Petition.

JURISDICTION

The petitioner, the People of the

State of California, respectfully prays

that a writ of certiorari issue to review

the judgment of the California Court of

Appeal, Fifth Appellate District, which

' was entered in this proceeding on Decem-

ber 5, 1980. The Court of Appeal denied

petitioner permission to file petition

for rehearing on January 2, 1981 (Appen-

dix "B''), and that same day denied

respondent's petition for rehearing

(Appendix "C"). The decision became final

as to that court on January 4, 1981.

(Rules 24(a) and 28, California Rules of

Court.) Tue California Supreme Court de-

nied the People's and Respondent's

petitions for hearing on March 5, 1981

(Appendix "D"). The remittitur issued

on March 6, 1981.

This Court's jurisdiction is

invoked under 28 U.S.C. section 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amend-

' ment V:

"No person . . . shall be com-

pelled in any criminal case to be a

witness against himself, nor be

deprived of life, liberty or prop-

erty, without due precess of law;

United States Constitution, Amend-

ment XIV:

ee .nor shall any state de-

prive any person of life, liberty,

or property, without due process

of law;

STATEMENT OF THE CASE

A. Proceedings in the State Court

Respondent Prysock was convicted by

jury in the Superior Court of the State of

California, in and for the County of Tulare

of crimes in six counts: first degree mur-

der with two special circumstances (torture

and robbery), robbery, burglary, auto theft,

destruction of evidence and escape from

juvenile camp. (CT 52a-53a, 179a-190a,

230a.) Upon conviction, the Superior Court

committed respondent Prysock to life im-

prisonment without the possibility of

parole. (CT 23la.)

The Court of Appeal of the State of

California, Fifth Appellate District, by

unpublished decision filed December 5,

1980, reversed respondent's judgment of

conviction on all counts other than escape.

The State Court held that respondent was

not properly advised of his right to the

services of a free attorney before and

during the interrogation. (Appendix "A"’.)

The People of the State of California

petitioned for rehearing on December 29,

1980, but permission for petitioner to file

a petition for rehearing was denied on Jan-

uary 2, 1981. (Appendix '"B".) Respondent's

petition for rehearing was denied on Janu-

ary 2, 1981. (Appendix "'C".)

The petition for hearing was timely

filed in the California Supreme Court on

January 13, 1981, and denied on March 5,

1981. (Justices Mosk and Richardson voted

to grant a hearing.) (Appendix ''D".)

B. Statement of the Facts

On January 30, 1978, Mrs. Donna Iris

Erickson was brutally murdered. She was

struck with a wooden dowel, bludgeoned with

a fireplace poker, stabbed with an ice pick

and finally strangled with a telephone cord

(RT 73-74, 76-78, 752, 755-757.)

On the evening of that day, respond-

ent and his co-defendant were apprehended

for commission of the offense. They were

brought to a substation of the Tulare

County Sheriff's Department. Upon arrival,

respondent Prysock was advised of his

Miranda rights by Sergeant Robert Byrd.

Respondent at this time invoked his right

to remain silent. (RT 226-228, 337-333.)

Thereafter, because respondent was

a minor, officers contacted respondent's

parents. The elder Prysocks arrived at

the substation, where Mrs. Prysock asked

to speak to her son. She and respondent

spoke privately in a small room for 15 to

20 minutes. Mrs. Prysock then emerged and

announced to deputies that her son was

ready to speak to them. (RT 233-234, 245.)

Sergeant Byrd set up a tape recor-

der in the room. On tape, Byrd asked

respondent whether he wished to speak to

officers. When respondent answered in the

affirmative, Byrd carefully explained to

respondent his constitutional rights.

i |

(RT 234-235.) The portion of the warnings

regarding right to counsel was transcribed

from the tape recordings as follows:

"Sgt. Byrd: You have the right

to talk to a lawyer before you

are questioned, have him present

with you while you are being

questioned, and all during the

a Do you understand

this:

"Randall P.: Yes.

"Sgt. Byrd: You also, being a

juvenile, you have the right to

have your parents present, which

they are. Do you understand

this?

"Randall P.: Yes.

"Sgt. Byrd: Even if they weren't

here, you'd have this right. Do

you understand this?

"Randall P.: Yes.

"Sgt. Byrd: You all, uh, -- if,

-- you have the right to have a

lawyer appointed to represent you

at no cost to yourself. Do you

understand this?

"Randall P.: Yes.

"Sgt. Byrd: Now, having all these

legal rights im mind, do you wish

to talk to me at this time?

La et Eee. eS

(Appendix "A", pp. ii-iii; RT 237.)

Respondent's parents and Sergeant

Byrd then had an off-tape conversation con-

cerning legal representation. Mrs. Prysock

asked the Sergeant whether respondent could

stiil have an attorney at a later date.

Sergeant Byrd replied that respondent could

have an attorney when he went to court,

that he could have an attorney at this time

if he wished one, and that respondent could

terminate his statement at any time he de-

sired. At the conclusion of this

conversation, respondent and his parents

again stated that they would like to pro-

ceed without counsel. Respondent then

gave a statement to the Sergeant regard-

ing his involvement with Mrs. Erickson's

murder. (RT 237-238, 422-423.)

It should be noted that respondent,

a youth camp escapee at the time, had been

represented by a Public Defender in his

previous case. (RT 288.)

At trial, the Superior Court de-

nied respondent's motion to suppress

evidence of the taped statement. (RT 221,

350-351.)

10.

ARGUMENT

RESPONDENT WAS PROPERLY ADVISED

OF HIS CONSTITUTIONAL RIGHTS IN

LANGUAGE WHICH CONVEYED ALL

ESSENTIAL INFORMATILN, AND HIS

CONFESSION IS ADMISSIBLE

On the basis of this Court's opinion

in Miranda v. Arizona (1966) 384 U.S. 436, 88

S.Ct. 1602, 16 L.Ed.2d 694, the California

Court of Appeal has erroneously concluded

that respondent was not adequately warned of

his right to the services of a free attorney

before and during interrogation.

The Court of Appeal's misinterpreta-

tion of Miranda involves substantial questions ©

of a recurring nature involving the Fifth and

Fourteenth Amendments, and application of

Miranda by lower courts.

This Court has never required that

Miranda warnings, in order to be effective,

must be phrased in the precise language

employed in the Miranda opinion, Rather,

this Court has made it clear that effective

11.

Miranda warnings need only convey the

substance of the required warnings in

intelligible language. In the Miranda opin-

ion itself, this Court introduced the newly-

required warnings by saying:

"The warnings required and the

waiver necessary in accordance with

our opinion today are, in the absence

of a fully effective equivalent,

prerequisites to the admissibility

ci any statement made by a defen-

dant." (384 U.S. at p. 476.)

(Emphasis added.)

Later in the opinion, this Court again stated:

"Procedural safeguards must be

employed to protect the privilege

[against self-incrimination] and unless

other fully effective means are

adopted tu notify the person of his

right of silence, and to assure that

the exercise of the right will be

scrupulously honored, the following

measures are required. .. ."

(384 U.S. at p. 479.) (Emphasis

added.)

Last year, this Court reiterated

that the proper emphasis is upon substance

rather than form. In Rhode Island v. Innis

(1980) 446 U.S. 291, 297, 100 S.Ct. 1682,

12.

64 L.Ed.2d 297, this Court reemphasized that

Miranda mandated "the now-familiar Miranda

warnings . .. or their equivalent."

(Emphasis added.)

In accordance with this Court's

directives, federal courts have rejected

rigid formalism in interpreting Miranda. It

is well established in these courts that

Miranda does not prescribe an exact, unde-

viating format which must be recited when

advising a suspect of his or her constitu-

bi dinik: xtahhe (See, e.g., Coyote v. United

States (10th Cir. 1967) 380 F.2d 305, 308,

cert. den. 404 U.S. 864, 92 S.Ct. 44, 30 L.Ed.

2d 107, "Surely Miranda is not a ritual of

words to be recited by rote according to

didactic niceties. What Miranda does require

is meaningful advice to the unlettered and

unlearned in language which he can comprehend

and on which he can knowingly act. We will

not indulge in semantical debates between

13.

counsel over the particular words used to

inform an individual of his rights"; United

States v. Vanterpool (2d Cir. 1968) 394 F.2d

697,.698-699, ". .. the words of Miranda do

not constitute a ritualistic formula which

must be repeated without variation in order

to be effective. Words which convey the

substance of the warning along with the

required information are sufficient";

Camacho v. United States (9th Cir. 1969)

407 F.2d 39, 42, n. 2, cert. den. 396 U.S.

944, 90 S.Ct. 380, 24 L.Ed.2d 245, "The pre-

cise words or nicety of language used in

advising a suspect of his rights are not

determinative; substance controls form";

Tucker v. United States (8th Cir. 1967) 375

F.2d 363, cert. den. 389 U.S. 888, 88 S.Ct.

128, 19 L.Ed.2d 189, " . . . the Supreme

Court did not prescribe an exact format or

postulate the precise language that must be

used in advising a subject of his

14.

constitutional right to remain silent.

Courts must, of course, zealously guard

against an invasion of that right. In

resolving the question in light of the

Miranda standards, the substance anda not the

form of the warnings should be of primary

importance.")

Miranda requires that, prior to

custodial interrogation, a defendant be

warned, " .. . that he has the right to the

presence of an attorney, and that if he can-

not afford an attorney, one will be uppointed

for him prior to any questioning if ne so

desires."' (384 U.S. at p. 436.)

In the instant case, the torality of

relevant facts and circumstances show that

the police admirably dischargea cheir duty to

advise respondent of his constitutional

rights, and that respondent fully understood

and waived those rights. (See Fare v.

Michael C. (1979) 442 U.S. 707, 725-726,

99 S.Ct. 2560, 61 L.Ed.2d 197.) Respondent

was given Miranda warnings on two separate

occasions on the night of his arrest. When

respondent was first brought to the sheriff's

station, Sergeant Byrd informed him of unspe-

cified "Miranda" rights. Respondent invoked

his right to remain silent, demonstrating his

understanding of the warning.

Respondent was again warned of his

Miranda rights by Sergeant Byrd after respon-

dent's mother approached the sergeant and

told him that her son wished to speak. The

sergeant painstakingly explained respondent's

rights to him in a taped conversation. From

the advisements then given, respondent

clearly knew he had the right to have an

attorney present before and during any

questioning and to have an attorney appointed

to "represent" him free of charge. "Repre-

sentation" of respondent in the case could

clearly encompass an attorney's presence

16.

during questioning. There is no reason to

suppose appellant believed it referred to the

right to an attorney at some later time.

These warnings fully complied with Miranda,

even though they were not given in the pre-

cise sequence set forth in that opinion.

Only a hypertechnical view of Miranda would

invalidate such advisements.

Moreover, after respondent waived

his rights and before any statement was

taken, the sergeant also answered

respondent's parents' questions about legal

representation at a future time. The

sergeant informed respondent's parents that

respondent could have legal counsel at trial,

during interrogation if he so desired, and

that the questioning would stop if and when

respondent requested. Respondent then

reiterated his desire to have counsel and the

right to remain silent. Importantly,

respondent, who was a Youth Camp escapee at

17.

the time of his arrest, had been oreviiuely

represented by a Public Defender, an attorney

provided free of charge in California.

The record on appeal therefore

discloses that the warnings given respondent

more than adequately comply with the essen-

tial requirement that a defendant receive

meaningful advice "in language which he can

comprehend and on which he can knowingly

act.'"' (Coyote v. United States, supra, 38

F.2d 305, 308.)

A number of circuit courts have

ruled upon warnings similar to the ones given

in the instant case, and upheld them as ade-

quate under Miranda.

In Coyote v. United States, supra,

380 F.2d 305, the defendant was advised, with

regard to assistance of counsel, that before

making any statement he could consult a

lawyer of his own choice, and in the event he

was without funds to hire a lawyer, the judge

18.

would appoint or provide one for him, Defen-

dant then wrote a statement including a repe-

tition of his Miranda rights, specifically,

the following clause: ".. . I can talk to

a lawyer or anyone before saying anything,

and that the judge will get me a lawyer if 1

am broke." (380 F.2d at p. 307.) The Tenth

Circuit Court of Appeal rejected the conten-

tion that the advisement, and defendant's

repetition of it, indicated that defendant

had not been informed with sufficient clarity

of his right to a court-appointed attorney at

the time the statement was made,

In Evans v. Swenson (8th Cir. 1972)

455 F.2d 291, cert. den. 408 U.S. 929, 92

S.Ct. 2508, 33 L.Ed.2d 342, the court upheld

an advisement by which a police officer

informed a defendant that he had a right to a

phone call, that he had a right to an attorney,

and that if defendant didn't have an

attorney or couldn't afford one, "I'll [the

19.

police officer] get one for you." (455 F.2d

‘at 295.) The court stated that appellant

“was clearly advised and informed in

substance that... if he could not afford

an attorney one would be furnished for him

prior to his making any statement and before

continuing the interview, if he so desired."

(455 F.2d at pp. 295-296.)

In United States v. Noa (9th Cir.

1971) 443 F.2d 144, the court rejected

appellant's contention that the warning he

was given was inadequate because it failed

to explicitly inform him that he had a right

to consult with an appointed attorney prior

to any questioning. The court upheld a

warning which informed appellant "You have

the right to talk to a lawyer for advice

before he asks you any questions and to have

him with you during questioning. If you can-

not afford a lawyer, one will be appointed

for you if you wish." (443 F.2d at p. 145.)

20.

| These courts, unlike the California

Court of Appeal herein, have looked to the

substance of the warnings and determined

that, in warnings like those given in the

present case, appropriate advisement of the

right to free counsel occurred.

The California Court of Appeal, by

ruling respondent's confession inadmissible

for noncompliance with Miranda, has infringed

upon the People's right to proceed to trial

with properly admissible and highly important

evidence. As this Court has stated in United

States v. Nixon (1974) 418 U.S. 683, 709,

94 S.Ct. 3090, 41 L.Ed.2d 1039:

"'The twofold aim [of criminal

justice] is that guilt shall not

escape or innocence suffer.' Berger

v. United States, 295 U.S. at 88,

79 L.Ed. T3T4. We have elected to

employ an adversary system of criminal

justice in which the parties contest

all issues before a court of law.

The need to develop all relevant

facts in the adversary system is

both fundamental and comprehensive.

The ends of criminal justice would

be defeated if judgments were to be

21.

founded on a partial or speculative

presentation of che facts. The very

integrity of the judicial system

and public confidence in the system

depends on full disclosure of all the

facts, within the framework of the

rules of evidence. To ensure that

justice is done, it is imperative to

the function of courts that compul-

sory process be available for the

roduction of evidence needed either

y the prosecution or by the defense."

Furthermore, the prosecution's right

to the production of all evidence at a criminal

trial has constitutional dimensions. The

Nixon opinion bases the prosecution's right

to present all properly admissible evidence

upon the right of due process. Withholding

properly admissible and

" . .« « demonstrably relevant

[evidence] in a criminal trial would

cut deeply into the guarantee of due

abe gy" of law and gravely impair the

asic function of the courts... .

[T]he constitutional need for pro-

duction of relevant evidence is

specific and central to the fair

adjudication of a particular criminal

case in the administration of justice.

(United States v. Nixon, supra, 418

U. . ’ at Ppp. 772-713.

The People's due process right is

22.

particularly clear in the instant case.

Respondent's confession was both voluntary

and given after a painstakingly thorough, and

proper, Miranda warning. The confession

constitutes important evidence of the crimes;

significantly, no question exists as to

respondent's culpability of the crimes.

Thus, due process and a common sense

interpretation of Miranda dictate that the

California Court of Appeal was in error in

ruling respondent's confession inadmissible.

23.

We respectfully submit that a writ of

certiorari should issue to review the

decision of the Court of Appeal.

CJC:ch

CR.SA81USO0002

5-1-81

Respectfully submitted,

GEORGE DEUKMEJIAN

Attorney General

ROBERT H. PHILIBOSIAN

Chief Assistant Attorney

General, Criminal Division

ARNOLD 0. OVEROYE

Assistant AttorneyGeneral

CARLA J. CARUSO

Deputy Attorney General

EDDIE T. KELLER

Deputy Attorney General

Attorneys for Petitioner

24.

APPENDIX A

APPENDIX -- (Opinion dated

December 5, 1980, 5 DCA)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, 5 Crim. No. 4051

(Super. Ct. No.

18655)

OPFrisgicocs

)

Plaintiff and ecenlnnaa |

RANDALL JAMES PRYSOCK,

)

Defendant and Appellant.

Appeal from a judgment of the

Superior Court of the County of Tulare.

David L. Allen, Judge. Reversed and

remanded.

Quin Denvir, State Public Defender,

under appointment by the Court of Appeal,

and Richard C. Fathy, Deputy State Public

Defender, for Defendant and Appellant.

George Deukmejian, Attorney General,

Robert H. Philibosian, Chief Assistant Attor-

me mney General, Arnold 0. Overoye, Assistant

' Attorney General, Diana Beth Constantino and

Carla J. Caruso, beputy Attorneys General,

for Plaintiff and Respondent.

| hetéidan’, Randall James Prvysock,

- aged sixteen at the time of the offenses

charged herein, was found guilty by jury of

first degree murder of Iris Donna Erickson as

charged in Count One of an amended informa-

tion. The jury also returned special findings

that the murder was (1) willful, deliberate

and premeditated, and was personally com-

mitted by defendant during the commision [sic]

of a robbery; and (2) was willful, deliberate

and premeditated and personally committed by

appellant involving the infliction of

| torture. The jury also found that the charge

of using a deadly weapon in the murder was

true. (Pen. Code, §§ 187, 190.2,+/ 12022,

subd. (b).)

The jury also returned verdicts of

guilty on the following charges: Count Two,

robbery of Iris Donna Erickson with the use

of a dangerous weapon (Pen. Code, §§ 211,

12022, subd. (b)); Count three, burglary of

the residence occupied by Iris Donna Erickson

and accompanied with the use of a deadly

weapon (Pen. Code, §§ 459, 12022, subd. (b));

Count Four, auto theft (Veh. Code, § 10851);

Count Five, escape from a youth facility

(Welf. & Inst. Code, § 871); and Count Six,

destroying evidence (Pen. Code, § 135).

Mark Danley, defendant's coparticipant and

also a juvenile, was found guilty of the same

charges in a later trial, including the

1. Defendant is accused of having

committed the offenses on January 30, 1978,

therefore, he is being tried under laws

enacted by the Legislature in 1977.

(Stats. 1977, ch. 316.)

special findings and an additional charge not

relevant here.

The court sentenced defendant under

Count One to state prison for life without

possibility of parole, The sentences for

Counts Two through Six were stayed pursuant to

Penal Code section 669.

We reverse and order a new trial

| because of Miranda error. For the guidance

of the trial court upon retrial, we also

discuss whether evidence was properly

admitted concerning the defendant's presence

when his co-participant Mark Danley was

arrested on a prior vehicle theft charge and

ai teube: tnetcuetional error. Other issues

raised by the parties but not likely to recur

on retrial are not discussed. We deem it

unnecessary to discuss the issue of whether

there is sufficient evidence to support a

jury determination of premeditation and

deliberation and the issue of the alleged

Penal Code section 135 violation.

FACTS

7 Brad Erickson, the victim's sixteen

year old son, had reported a car theft of

co-participant Mark Danley some four months

prior to the incidents in question. Danley

subsequently made the boast that he was going

"to take care of" Brad Erickson's mother, the

murder victim. Defendant overheard this

statement. Defendant had been (innocently)

with Danley when he was arrested for this

prior car theft.

The defendant and Danley escaped

from a juvaniie detention facility during the

evening of Saturday, January 28, 1978.

Danley stole a vehicle in whic® the boys rode

about in Tulare County on Sunday. Danley

collided with a tree and set the interior on

fire, The next day, Monday, defendant stole a

Datsun pickup. Danley then drove it around

the town of Porterville. He drove to his

sues to obtain clothing and food, but did

not stop because his mother was at home.

Danley then dreve past the victim's

house several times, saying that he knew

where they could get see food and clothes.

The victim's car was known tv Danley. It

was not there since it was at a repair shop.

The victim's son, Brad Erickson, had left in

his pickup earlier to take some papers to a

recycling center. The defendant and Danley

stopped long enough to look in the garage.

Danley made two separate telephone calls to

an unknown number from a convenience store

located near the house.

| The pair then parked on a nearby

street and walked to the rear of the house.

Danley attempted to force entry by breaking

out a window. When confronted by the victim,

both boys ran to the front of the house and

forced=! entry through the front door.

When the victim announced that she

was going to call the police, defendant hit

her two or three times with a wooden dowl

which he found near where he was standing in

the living room. Danley then hit her with a

metal fireplace poker, stabbed her in the

back eight times with an ice pick to a con-

sistent depth of 1" to 1 14" and eventually

strangled her to death with a telephone cord.

After the murder, the boys stole a

shotgun, some food, money and tapes from the

house. They also stole clothes which they

changed into, subsequently burning the

clothes which they wore at the time of the

killing. Later that day, their vehicle, full

of incriminating evidence, was spotted by the

police resulting in a chase and their arrest.

2. There is conflict in the evidence as

to method of entry and whether force was

used.

MIRANDA ERROR@’

Shortly after being taken to the

police station, the defendant was given a

statement of rights by a Sgt. Byrd. Defen-

dant declined to talk. The record does not

reveal the exact content of the advisement,

the officer merely testified that he read a

recitation of Miranda rights.

Defendant's parents were called, and

they came to the station. About 20 minutes

after defendant refused to talk, his mother

entered the room where her son was located.

She talked with him about 20 minutes.

Defendant's mother exited and indicated

defendant wished to discuss the events of

earlier in the day.+/ A few minutes after

3. Miranda v. State of Arizona (1966)

384 U.S. 436.

4. The facts suggest possible Pettinghill

error but none occurred. The mother came to

the station house at police behest and

requested permission to talk with her son.

this Sergeant Byrd re-entered the room where

defendant was located; defendant's parents

followed. Byrd took a taped statement from

defendant which was admitted into evidence,

The statement is set forth in full in the

appendix attached hereto.

Defendant contends that he was not

given an adequate warning tht he could have

the services of a free attorney before and

during the interrogation. We agree.

The issue can be presented by

‘selecting portions of the statement and per-~

tinent testimony given by Sergeant Byrd as to

an off-tape discussion. The tape reflects

the following:

"Set. Byrd: You have the right

to talk to a lawyer before you are

questioned, have him present with you

while you are being questioned, and

Footnote 3 continued.

After twenty minutes of conversation she then

advised the police that her son was ready to

talk. (See People v. Pettinghill (1978)

21 Cal.3d 231.

all during the questioning. Do

you understand this?

"Randall P.: Yes.

"Set. Byrd: You also, being

a juvenile, you have the right to

have your parents present, which

they are. Do you understand this?

"Randall P.: Yes.

"Set. Byrd: Even if they

weren't here, you'd have this

right. Do you understand this?

"Randall P.: Yes.

"Sgt. Byrd: You all, uh --

if -- you have the right to have a

lawyer appointed to represent you

at no cost to yourself. Do you

understand this?

"Randall P.: Yes."

The trial transcript reveals the following

regarding an off-the-record conversation that

took place at Mrs. Prysock's request just

after defendant was advised of his rights and

prior to any questioning:

"Q [Prosecution] Okay. And

what was discussed during the time

the tape was off?

10.

’

"A ([Sgt. Byrd] Her question

was if he gave a statement, could,

as I recall, could she still have

an attorney at a later time or

would -- did this deny him the

right to have an attorney at a

later date.

"Q And what was your response

to that?

"A That he would have an

attorney when he went to Court. And

that he could have one at this time

if he wished one. He could termi-

mate the statement at any time he

so desired,

"Q Okay. Did anybody respond

to that in the room?

"A Well, they said, as I

recall, said 'Go ahead.' They just

wanted to clarify that point."

On cross examination, Sgt. Byrd was ques-

tioned about a discussion after the statement

was given:

"Q [Defense counsel] Did you

ever mention to Mr. or Mrs. Prysock

or Randy how much it would cost

them to hire an attorney?

"A I think Mr. Prysock made

some remarks to me that he didn't

have money to hire an attorney. And

I told him that the price of an

11.

attorney that Randy qualified for

the Public Defender's Office.

"And that the price of the

attorney that this would be the

proper people to contact, and

that they had some excellent

attorneys, I believe is the state-

ment I made to him,

"Q Is this reflected in

your police report?

"A. No, it .ds not.

"Q When are you recalling

that you made this remark to Mr.

Prysock before or after the tape

started?

"A This was after the tape.

"Q Was this completely after

the statement was given?

"A Yes. And in fact I had

to go eat and come back as I

recall."

It is not for this court to overrule

Miranda, disparage it, nor extend it. Its

meaning is clear. It has stood the test of

time. Law enforcement practices have adjusted

to its strictures. One of its virtues is its

precise requirements which are so easily met.

12.

The United States Court of Appeals,

Fifth Circuit, sitting en banc in Harryman v.

Estelle (Sth Cir. 1980) 616 F.2d 870,

recently discussed the Miranda decision and

stated:

"The rigidity of the Miranda

rules and the way in which they are

to be applied was conceived of and

continues to be recognized as the

decision's greatest strength. EB

Tague v. Louisiana, U.S.

Miranda v. Arizona, 384 U.S. at

. See also Fare v. Michael

C., "439 ‘U.S. 1310, 1314, 99 s.ct. 3,

5, 58 L.Ed.2d 19 (1978) Rehnquist,

J., on application for stay) (calling

rigidity of Miranda its ‘core virtue’),

The decision's rigidity has afforded

police clear guidance on the accept-

able manner of questioning an

accused. It has allowed courts to

avoid the intractable factual deter-

minations that the former totality

of the circumstances approach often

entailed. When a law enforcement

officer asks a question of an

accused and the accused, without

the benefit of Miranda's safeguards,

answers, the totality of the circum-

stances is irrelevant. The accused's

answer is simply inadmissible at

trial as part of the prosecution's

er tela chief."" (Id. at pp. 873-

874.

13.

The language of Miranda bears

repeating. (See Miranda v. State of Arizona

(1966) 384 U.S. 436.) At 384 U.S. page 479

we are told that a person about to undergo

custodial interrogation must be told:

" . . « that he has the right to the presence

of an attorney, and that if he cannot afford

an attorney one will be appointed for him prior

to any questioning if he so desires. .. ."

In the case at bench, the defendant

was told that he had a right to talk to a

lawyer before he was questioned and to have

him present during the questioning. The

officer then could and should have added,

"and if you cannot afford an attorney one

will be appointed for your prior to any

questioning if you so desire". Instead, the

officer diverted the conversation to a

discussion of the minor's right to have his

‘parents present. This was a needless

excursion, since both parents were seated in

14.

the room with their son. The officer then

said:

"Set. Byrd: You all, uh --

if -- you have the right to have a

lawyer appointed to represent you

at no cost to yourself. Do you

understand this?

" Randall P.: Yes. [sic]

Unfortunately, the minor was not

given the crucial information that the ser-

vices of the free attorney were available

prior to the impending questioning.

The matter was obfuscated, rather

than clarified, by the off-the-record dis-

cussion. The statement in reference to’

attorney services omitted the advice that a

free lawyer would be provided prior to

questioning if desired.

Since most police agencies use a

standard Miranda warning card, there are not

many recent cases on the subject. However, if

we go back to the first year or two after the

Miranda decision, when the full scope of the

15.

—

decision. was not universally understood, we

find some.

In People v. Bolinski (1968)

260 Cal.App.2d 705, 718, 723, prior to giving

a statement the defendant was told by one

officer that if he was charged he would be

appointed counsel. By another officer he was

told that he had a right to a lawyer. The

parties were then in Illinois and the second

. officer testified: "I advised him that the

court would appoint one in Riverside County"

and that a "public defender would be fur-

nished for him by the court."

Bolinski differs from the case at

bench in that there was a stronger implica-

tion that the provision of free counsel would

be provided later. But it is similar to our

case in that there was no statement that free

counsel would be provided prior to

questioning if desired.

16.

| Bolinski was followed by People v

Stewart (1968) 267 Cal.App.2d 366. The

Stewart court held that a warning which told

the defendant " .. . that he had a right to

an attorney, and he could have his attorney

here; .. . [that] he had a right to have the

Public Defender appointed in case he couldn't

afford an attorney; that if he didn't want

the Public Defender to be appointed, that he.

could pick an attorney and this attorney

would be appointed by the Court for him," was

not adequate." (Id. at p. 378, fn. 16.)

The court stated at page 378:

"It is argued that the statement

that defendant might have his attorney

"here' distinguishes Bolinski and

satisfies Miranda. We do not agree.

The burden is on the People to show

that warnings of all the consti-

tutional rights were given, that

defendant understood them, and that

he thereafter voluntarily and

intelligently waived those rights.

Ambiguities in the warnings must

be resolved against the prosecution.

As recounted in the case at bench,

the warning could well have been

interpreted to mean no more than

17.

that the court-appointed attorney

would, at some future time, visit

defendant in jail. This is not

the equivalent of telling him that

the interrogation would suspend

until the attorney arrived."

It may be seen that Stewart closely

parallels the case at bench. There the

defendant was told that he could have his

attorney “here", and that he had the right to

have the public defender appointed. In our

case defendant was told he had a right to

talk to a lawyer before and during

questioning and that he had a right to have a

lawyer appointed to represent him at no cost.

‘In both cases it was not stated that the free

attorney could be present in the interroga-

tion room.

VOLUNTARINESS OF CONFESSION

The finding of Miranda error

obviates the need to review defendant's state-

ment on the issue of voluntariness according

to the principles enunciated in People v.

18.

rT?

Sanchez (1969) 70 Cal.2d 562, 576, cert.

dism., 394 U.S. 1025. However, we note that

the trial court was told by the prosecution

that the test to be used in determining the

voluntariness of a confession was that of

preponderance of the evidence, and the court

made its ruling without stating that it was

applying the correct standard of proof of

beyond a reasonable doybt. (See People v.

Jimenez (1978) 21 Cal.3d 595.) Perhaps the

reason for the apparent error was the fact

that Jimenez had been filed just four days

prior to the hearing challenging the volun-

tariness of the confession in this case.

ADMISSION OF EVIDENCE THAT DEFENDANT WAS

WITH DANLEY WHEN THE LATTER WAS ARRESTED

Over timely objection on the ground

of relevancy, the prosecution was permitted

to cross-examine the defendant on the fact

that the latter was (innocently) with Danley

when Danley was arrested for car theft. It

19,

°*.s

will be recalled that the victim's son had

reported this theft to law enforcement.

There wae tb evidence that the defendant knew

this fact at the time of the arrest, but |

defendant admitted that he was present when

Danley told a. fellow Juvenile Hall resident

that he was going to "take care of" Mrs.

Erickson.

The question and answer tend to

disprove those portions of defendant's testi-

money in which he alleged he did not know of

any Brad Erickson or his family and tends to

disprove his statement at trial that he did

not know what Danley meant when he "over-

heard" Danley telling another juvenile hall

resident that he was going to "take care" of

Brad Erickson's mother.

A trial court is vested with wide

discretion in deciding relevance of evidence.

(People v. Warner (1969) 270 Cal.App.2d 900,

908.) It was within the trial court's

20.

discretion to admit the testimony.

FLIGHT INSTRUCTION

Defendant contends that the trial

court prejudicially erred when it gave CALJIC

No. 2.52, the standard flight instruction.’

He implicitly concedes that evidence of

flight existed but argues that the instruc-

tion might be used by the jury to find

appellant's state of mind at the time the

crime was committed, which it is claimed, is

contrary to People v. Anderson (1968) 70

Cal,2d 15, pages 32-33.

= —

5. CALJIC 2.52 states as follows:

"The flight of a person immediately

after the commission of a crime, ar

after he is accused of a crime that

has been committed, is not sufficient

in itself to establish his guilt,

but is a fact which, if proved, may

be considered by you in the light

of all other proved facts in deciding

the question of his guilt or innocence.

The weight to which such circumstance

is entitled is a matter for the jury

to determine."

21.

Respondent asserts that Penal Code

section 1127c mandated the instruction, that

the instruction did not direct the jury to

consider flight as bearing on appellant's

mental state, and that other instructions

informed the jury as to the intent required.

_ Penal Code section 1127c provides:

"In any criminal trial or proceeding

where evidence of flight of a

defendant is relied upon as tending

to show guilt, the court shall instruct

the jury substantially as follows;

"The flight of a person immediately

after the commission of a crime,

or after he is accused of a crime

that has been committed, is not

sufficient in itself to establish

his guilt, but is a fact which, if

proved, the jury may consider in

deciding his guilt or innocence.

The weight to which such circumstance

is entitled is a matter for the jury

to determine.

"No further instruction on the subject

of flight need be given."

Defendant has cited no authority

which suggests that the instruction was

improper here. Anderson, supra, did not

22.

involve CALJIC 2.52 or flight evidence at

all. Rather, it concerned other evidence of

cognizance of guilt.

In essence, appellant's argument

appears to be that the instruction should

have been modified to limit the effect of

flight to issues other than appellant's men-

tal state.

The trial court had no sua sponte

duty to modify the instruction,

23.

ORDER

The judgment is reversed as to all

counts except Count 5, and the cause remanded

for retrial. As to Count 5, “escape”, the

judgment is affirmed. None of the errors

complained of or dealt with here affect that

count.

ANDREEN

WE CONCUR:

HOPPER

Acting P.J.

THOMPSON

*® Retired Judge of the Superior Court

assigned by the Chairperson of the Judicial

Council.

24.

APPENDIX

"Set. Byrd: . . . Today's date being

January the 30th 19 and 78; The

time at this time is 22:47 hours;

interviewing officer is Sergeant

Byrd, Tulare County Sheriff s

Office. Sitting in on the inter-

view is his mother Maxine Prysock

and James Prysock. Mrs. Prysock,

would you state your full name

for the record please.

"Mrs. P.: Lenora Maxine Prysock.

"Set. Byrd: And Mr. Prysock, would

you state your name please.

"Mr. P.: My name is James, Jr. Prysock.

"Set. Byrd: And, Randall, would you

state your full name please.

"Randall P.: Randall James Prysock.

"Set. Byrd: Okay. Mr. Randall James

Prysock, earlier today I advised

you of your legal rights and at

that time you advised me you

did not wish to talk to me, is

that correct?

"Randall P.: Yeh.

"Set. Byrd: And, uh, since then you

have asked to talk to me, is

that correct?

"Randall P.: Yeh.

"Set. Byrd: And, uh, during, at the

first interview your folks were

not present, they are now

present. I want to go through

your legal rights again with

you and after each legal right

I would like for you to answer

whether you understand it or not.

And it's being recorded so if I

could get you to would you set up

pretty straight and remove your hand.

from your mouth and talk as plain as

you possibly can, okay. Your

legal rights, Mr. Prysock, is

follows:

Number One, you have the right to

remain silent. This means you don't

have to talk to me at all unless

you so desire. Do you understand

this?

"Randall P.: Yeh.

"Set. Byrd: If you give up your right

to remain silent, anything you

say can and will be used as evi-

dence against you in a court of

law. Do you understand this?

"Randall P.: Yes.

"Sgt. Byrd: You have the right to talk

to a lawyer befere you are ques-

tioned, have him present with you

while you are being questioned,

and all during the questioning.

Do you understand this?

"Randall P.: Yes.

"Sgt. Byrd: You also, being a juvenile,

you have the right to have your

parents present, which they are.

Do you understand this?

"Randall P.: Yes.

"Sgt. Byrd: Even if they weren't here,

you'd have this right. Do you

understand this?

"Randall P.: Yes.

"Sgt. Byrd: You all, uh, -- if, --

you have the right to have a lawyer

appointed to represent you at no

cost to yourself. Do you under-

stand this?

"Randall P.: Yes.

"Sgt. Byrd: Now, having all these legal

ii.

rights in mind, do you wish to talk

to me at this time?

"Randall P.: Yes.

"Sgt. Byrd: Now, uh, Mrs. Prysock, you

are indicating you want to talk to

me with the tape recorder off. So

I am going to shut the tape recorder

off for a couple minutes, or what-

ever time it takes. The time at this

time is 10:50 p.m. on 1/30/77.

Going off the tape.

Okay, Mrs. Prysock, you asked to

get off the tape, we are going back

on the tape and the time now is

22:55 hours, we are on 1/30/78, the

time, uh, we were off the air, the

record, record for approximately

five minutes. During that time you

asked, decided you wanted some time

to think about getting, whether to

hire a lawyer or not.

"Mrs. P.: ‘Cause I didn't understand it.

"Sgt. Byrd: And you have decided now

that you want to go ahead and you

do not wish a lawyer present at

this time?

"Mrs. P.: That's right.

"Sgt. Byrd: And I have not persuaded

you in any way, is that correct?

"Mrs. P.: No, you have not.

"Sgt. Byrd: And, Mr. Prysock is that

correct that I have done nothing

to persuade you not to, to hire

a lawyer or to go on with this?

"Mr. P.: That's right.

"Sgt. Byrd: Okay, everything we're

doing here is strictly in accord-

ance with Randall and yourselves,

is that correct?

"Mr. P.: That is correct.

si.

"Sgt. Byrd: Okay. Uh, all right, Randy,

I can't remember where I left off,

I think I asked you, uh, with your

legal rights in mind, do you wish

to talk to me at this time? This

is with everything I told you, all

your legal rights, your right to an

attorney, your right, and your

right to remain silent, and all

these, I mean do you wish to talk

to me at this time about the case?

"Randall P.: Yes.

"Sgt. Byrd: Okay, uh, uh, Randy, or it's

Randall, if I might call you Randall,

that all right with you?

"Randall P.: Yes.

"Sgt. Byrd: Okay. Would you in your own

words just tell me what happened?

"Randall P.: Well, sir, it was about,

this morning about 7:30 or 8:00,

Mark knew where this car was parked

at, the, the Datsun. And, uh, he

knew it was by the store ‘cause he

said they usually leave the keys

in it. So he was the one that

wanted to take it.

"Sgt. Byrd: Okay. What kind of a car

was this?

"Randall P.: A Datsun.

"Sgt. Byrd: What color was it?

"Randall P.: White.

"Sgt. Byrd: Okay. And did you take it?

"Randall P.: Yeh, we taken it.

"Sgt. Byrd: Uh, okay, who, you say we,

who are you talking about when you

Say we?

"Randall P.: Mark taken it.

"Sgt. Byrd: Mark, what's his last name?

"Randall P.: Danley.

"Sgt. Byrd: And who drove the car?

"Randall P.: Mark did.

iv.

"Set. Byrd:

"Randall P.:

Okay. And where did you go?

Well, we tooken it, and we

came to Porterville this morning.

"Set. Byrd: Where did you go in

Porterville?

"Randall P.: All over, we just went. .

"Set. Byrd: Okay. Did you ever end up

at any certain place?

"Randall P.: No.

"Set. Byrd: Did you ever stop anywhere?

"Randall P.: No.

"Set. Byrd: At no houses, no nothing?

"Randall P.: No. We didn't stop any-

place.

"Set. Byrd: Well, did sometime today,

did some...

"Randall P.: Well...

"Set. Byrd: Something happen?

"Randall P.: We stopped at that red house.

"Set. Byrd: At a red house?

"Randall P.: Yeh.

"Set. Byrd: Is it some other color than

red?

"Randall P.: As far as I can remember

it's red.

"Set. Byrd: What color is the top?

"Randall P.: I can't, it's either white.

"Set. Byrd: White top? Okay. Uh, you

know what street it's on?

"Randall P.: No.

"Set. Byrd: Okay, did you park right in

front of the house, or where did

you park?

"Randall P.: We parked about a block from

it.

"Set. Byrd: And, uh. ...

"Randall P.: On a different road.

"Set. Byrd: Yeh. Uh, did you walk down

to the house then?

"Randall P.: Yes.

"Sgt. Byrd: Okay. How were you dressed

Vv.

at the time you walked down to the

house?

"Randall P.: In our, in our, uh, camp

clothes.

"Set. Byrd: Okay. And when you got to

the house, what did you do?

"Randall P.: Well, Mark wanted to take

everything and, Mark, and that

- lady answered the door. Well, Mark

went around to the window and broke

out that window and that lady come

to the door. And Mark kicked the

door open and went in there, pushed

her down.

"Set. Byrd: Pushed her down?

"Randall P.: Yeh.

"Set. Byrd: And then what happened?

"Randall P.: And then Mark [inaudible],

and I hit her once. And Mark...

"Set. Byrd: What did you hit her with?

"Randall P.: A little, a stick.

"Set. Byrd: What kind of a stick?

"Randall P.: Looked like a broom handle.

"Set. Byrd: Okay. Where did you hit

her at?

"Randall P.: In the head.

"Set. Byrd: In the back of the head or

the front of the head?

"Randall P.: I can't remember.

"Set. Byrd: You just hit her with a

stick?

"Randall P.: Yeh.

"Set. Byrd: Then what happened?

"Randall P.: Then Mark picked up this

thing that was setting on the

fireplace and he hit her in the head

a bunch of times.

"Set. Byrd: What kind of a thing was it?

"Randall P.: I don't know, ok Be: FS

don't, it's what you use for a fire-

place to clean them out I guess or

vi.

something.

"Set. Byrd: Kind of a shovel-like deal?

"Randall P.: Yeh.

"Sgt. Byrd: Okay. Go ahead.

"Randall P.: Then he hit her in the

head a bunch of times, then, you

know, that was it, then she started

screaming and stuff. And Mark,

that's when Mark stabbed her.

"Sgt. Byrd: What did he stab her with?

"Randall P.: Ice pick.

"Sgt. Byrd: Where did he get the ice

pick at?

"Randall P.: I don't know.

"Set. Byrd: Okay. Then what happened?

"Randall P.: Then, that's all I know,

Mark took, Mark went to the house

and took what he wanted.

"Sgt. Byrd: What did he take?

"Randall P.: He took a gun, money, uh,

clothes, that's about all I can

remember. And we went over and

got the pickup, Mark put all that

crap in and Mark drove off.

"Sgt. Byrd: Okay. You were telling me

earlier, or, uh, something about

you met a guy in, in camp. And

that's just before I walked in,

this was just something you blurted

out to me, uh, as we was coming in

here. What, what was this, I ~The t

recall exactly what it was. Some-

thing about somebody in camp give

you an idea to do it or seunthtin .

What was this?

"Randall P.: Oh, I said Mark told Hipp

that his plans, what he was going

to do.

"Sgt. Byrd: Okay, now, who is Hipp?

"Randall P.: Roy Hipp.

"Sgt. Byrd: And where'd you meet him at?

vii.

"Randall P.: At Juvenile Hall.

"Set. Byrd: And how long ago was this?

"Randall P.: About three, two or three

weeks.

"Set. Byrd: And what did Mark tell this

guy that he was going to do?

"Randall P.: He told him what all he was

going to do was rob, and what he was

going to do to Brad Erickson's mom.

"Set. Byrd: What'd he say he was going

to do to her?

"Randall P.: Kill her.

"Set. Byrd: Well, why, how, why did he

want to kill her?

"Randall P.: I don't know. He never did

tell me.

"Set. Byrd: Are these things that you're

telling me the truth?

"Randall P.: Yes.

"Set. Byrd: Okay. Uh. Where did you go

after you left the residence where

the old lady was beaten up and

stabbed?

"Randall P.: Mark, well Mark was driving

off and we, I don't know, we went a

bunch of back roads, we went to a

whole bunch of back roads. I don't

know where they were.

"Set. Byrd: Well, did you do something

with clothes, jail clothing you

was wearing?

"Randall P.: Yeh.

"Sgt. Byrd: What was that?

"Set. Byrd: Burn ‘em.

"Set. Byrd: You burn ‘em or throw ‘em

out?

"Randall P.: We burned ‘em.

"Set. Byrd: What about the tennis shoes

you was wearing?

"Randall P.: We burned ‘em.

"Sgt. Byrd: You burned everything?

viii.

——— ee

"Randall P.: Yeh.

"Sgt. Byrd: You sure of this?

"Randall P.: Yes.

"Sgt. Byrd: You didn't just throw ‘em

out in an orange grove?

"Randall P.: No, we burned ‘em.

"Sgt. Byrd: Okay. Mr. and Mrs. Prysock,

do you have anything you'd like to

ask?

"Mrs. P.: Yes, I would. I'd like to

know; I wish to would like to ask

Randy when he started drinking. To

me he appears he has been drinking

heavily. I know my child.

"Sgt. Byrd: Okay.- How much have you had

to drink?

"Randall P.: Well, we started this

morning and we had a case of beer.

"Sgt. Byrd: How do you feel right now?

"Mrs. P.: I'd like a blood sample taken

of him also.

"Sgt. Byrd: Yeh, there has been a blood

sample taken ma'am. How many, how

do you feel now?

"Randall P.: Uh, I feel .

"Mrs. P.: He can't remember .

~meeeail P.: .Dissy .. .

"Mrs. P.: [inaudible] . . . bringing

that in.

"Sgt. Byrd: Huh?

Randall P.: I feel dizzy. I don't know.

"Sgt. Byrd: Do you know what you're

telling me now?

"Randall P.: Yes.

"Sgt. Byrd: Are you well aware of what

you're saying?

"Randall P.: Yes.

"Set. Byrd: And there's not a doubt in

your mind that what you're telling

us is exactly what happened?

"Randall P.: That's what happened; what

ix.

"Sgt.

"Mr

"Set :

"Mrs.

"Sgt.

"Mrs.

"Sgt.

I'm telling you.

Byrd: Do you have any questions,