Petition for Writ of Certiorari — California v. Paschall

IN THE

JAN 11 1574

Supreme Court of the United States

ar wo 2.08

October Noe R= | 1973

109 3

STATE OF CALIFORNIA,

Petitioner,

vs.

ROBERT JAMES PASCHALL,

Respondent.

On Writ of Certiorari to the Court of Appeal of the State of

California, Second Appellate District, Division Five

PETITION FOR WRIT OF CERTIORARI

EVELLE J. YOUNGER,

Attorney General,

JACK R. WINKLER,

Chief Assistant Attorney

General—Criminal Division,

S. CLARK MOORE,

Assistant Attorney General,

FREDERICK R. MILLAR, JR.,

Deputy Attorney General,

DONALD F. ROESCHKE,

Deputy Attorney General,

600 State Building,

217 West First Street,

Los Angeles, Calif. 90012,

(213) 620-4275,

Attorneys for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

Petition for Writ of Certiorari -..............................-- 1

Opinion Below ..................------.--.- om 1

SRN ae eR Oe te le 2

I i creipeiionesonns 2

Constitutional Provisions Involved .....................- 2

I a a eneierrsoneneie 3

A. Procedural Background .......................... 3

B. Statement of Facts ................................. 4

C. Facts Pertaining to the Impeachment Is-

sue ae en

Reasons Why Certiorari Should Be Granted .......... 7

I

This Case Presents the Following Important Con-

Stitutional Questions Concerning the Proper

Interpretation of Harris v. New York, 401 U.S.

222 (1971): Does Harris Apply Only to Cases

in Which No Miranda Warning Is Given, or

Does It Apply Where the Warning Is Given

but the Waiver of Rights Is Invalid, Where

the Resulting Statement Itself Is Trustworthy

oi tai conceit 7

This Is an Appropriate Case to Clarify Con-

flicts and Ambiguities in Both Federal and

State Court Decisions Construing Harris ........

ID sseaScnlectiatehcndnceslannsieiebidiatactiiiidenaminces

Appendix A. Opinion of the Court of Appeal

slip ehaiecnceattdnsaaannndalanslsidtpiaicbalananeniiniatial App. p

ef + SSB Spgs EE RSE PETE SG ELLE SOT ALO LETTE ST 2 GS RS OE SPP

TABLE OF AUTHORITIES CITED

Cases Page

Ashcraft v. Tennessee, 322 U.S. 143 ......00000.2....... 10

Brooks v. United States, 449 F.2d 1296 .......... 10, 13

Commonwealth v. Harris, 295 N.E.2d 687 ............ 13

Crain v. Commonwealth, 484 S.W.2d 839 .............. 13

Harris v. New York, 401 U.S. 222 .............. i: ae

Seiakaasdemeeaainiacanaaa dakota Haile 8, 9, 10, 11, 12, 13, 14

Hysler v. Florida, 315 U.S. 4111 ............................ 10

Inmates of Attica Correctional Facility v. Rockefel-

By ME woctdasxcendisooinich tinticbdpienctbewacoiuiites 10

Lyons v. Oklahoma, 322 U.S. 596 ........................-- 10

Miranda v. Arizona, 264 U.S. 436 ................ YS Sa

intaigvasoteamees 7, 8, 9, 10, 11, 12, 14

People v. McColor, 36 Mich. App. 455 ................ 13

Pepin Ww. Pp, BE Ca Be BG ccecvccccssciiisesern 12

Ruffin v. United States, 293 A.2d 477 .................. 13

State v. Kassow, 28 Ohio St.2d 141.200.0002 .... 13

State of New Jersey v. Slobodian, 120 N.J. Super.

Re ve cere ee ee OD Re a REO Oe NN 13

Tucker v. Michigan, No. 73-482 ........................ 13, 14

United States v. McIntyre, 467 F.2d 274 .............. 13

United States v. Penta, 475 F.2d 92 ~.....0000... 13

United States v. Skillman, 442 F.2d 543 ~.00000..... 13

United States ex rel. Wright v. La Vallee, 471 F.2d

ERR Ae APES ERED ME IE EIS AL ORT SE ERE 13

Wilson v. United States, 162 U.S. 613 —....02002000.... 10

Wold v. State, S37 Wis.2d 344 ............20c....c..ccce-s: 13

Rules Page

California Rules of Court, Rule 976 .................... 1

Statutes —

California Penal Code, Sec. 220 ............................ 3

California Penal Code, Sec. 459 ... 3

California Penal Code, Sec. 460 ..........02..22.002.20022.- 3

United States Code, Title 28, Sec. 1257(3) ...... 2

United States Constitution, Amendment V ............ 2

United States Constitution, Amendment XIV ...... 2

| RAO LSE aed EERE ee 2

IN THE

Supreme Court of the United States

October Term, 1973

UG sctsdnancese

STATE OF CALIFORNIA,

Petitioner,

vs.

ROBERT JAMES PASCHALL,

Respondent.

On Writ of Certiorari to the Court of Appeal of the State of

California, Second Appellate District, Division Five

PETITION FOR WRIT OF CERTIORARI

Petitioner State of California respectfully prays that

a writ of certiorari issue to review the judgment of

the Court of Appeal, Second Appellate District, Di-

vision Five of the State of California entered on Au-

gust 31, 1973. A petition for rehearing was denied on

September 17, 1973; one justice voting to grant a re-

hearing. The petition for hearing in the California

Supreme Court was denied on October 31, 1973.

Opinion Below

The opinion of the California Court of Appeal is

unpublished pursuant to Rule 976 of the California

Rules of Court. A copy of the opinion is attached

hereto as Appendix A.

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Jurisdiction

The judgment of the California Court of Appeal,

which considered the issue presented herein, was en-

tered on August 31, 1973. A timely petition for re-

hearing, in which the within issue was raised, was de-

nied on September 17, 1973, one justice voting to grant

a rehearing. A timely petition for hearing in the Cali-

fornia Supreme Court, in which the within issue was

raised, was denied on October 31, 1973. This Court’s

Jurisdiction is invoked under 28 U.S.C. § 1257(3).

Question Presented

Whether the rule announced in Harris v. New York,

401 U.S. 222 (1971), which permits impeachment of

a defendant with voluntary statements obtained from

him without a required Miranda warning, applies to

cases where the defendant is given the required Miran-

da warning but his waiver of those rights is invalid

by Miranda standards.

Constitutional Provisions Involved

United States Constitution, Amendment V, in rele-

vant part:

“[N]or shall [any person] be compelled in any

criminal case to be a witness against himself.”

United States Constitution, Amendment XIV, section

1, in relevant part:

“. . . No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any per-

son within its jurisdiction the equal protection of

the laws.”

LTS LL RTI TE LT EE BOAR I TL 8) LEE GP BE BLL IS PPTL

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Statement of the Case

A. Procedural Background

In a jury trial respondent was found guilty of bur-

glary of the first degree in violation of sections 459 and

460 of the California Penal Code and of assault with

the intent to commit rape in violation of section 220

of the California Penal Code. [Appendix A, p. 1;

Cl. Tr.’ pp. 60-62.] Respondent was sentenced to the

state prison for the term prescribed by law. It was or-

dered that the sentence on Count II merge with the

sentence on Count I. [Appendix A, p. 1; Cl. Tr. p.

65.] Respondent appealed to the California Court of

Appeal [Cl. Tr. p. 66], which reversed the judgment on

the ground that respondent’s out-of-court statement to

the police was not admissible for purposes of impeach-

ment under Harris v. New York, supra, 401 U.S. 222

(1971). The court held the statement was not admis-

sible under Harris because after appellant had been ad-

vised of his rights and had invoked his right to remain

silent, the officer had told appellant he just “wanted

to hear his side of the story” and since he had invoked

his rights, his statement could not be used against him.

The court reasoned that the officer’s statement to re-

spondent precluded a valid waiver of Miranda rights.

The court concluded that since the waiver was in-

voluntary under Miranda v. Arizona, 384 U.S. 436

(1966), respondent’s statement was involuntary and

inadmissible under Harris v. New York, supra. In es-

sence, the Court of Appeal engrafted the waiver rules

of Miranda onto the rule announced in Harris. (Ap-

pendix A, pp. 7-9.)

1As used in this petition, “Cl. Tr.” refers to the Clerk’s Tran-

script which was part of the record in the State appeal, and

“Rep. Tr.” refers to the Reporter’s Transcript which was also

part of the record on appeal.

ONE EE GIOVE IO LR PETAR. F 29 SO NIT DE SOs BONEN SNE. es IES ST ATR, rane a as rose

—_

B. Statement of Facts

On March 10, 1970, at about 7:30 p.m., Miss Kimi-

ko Jano, who was fully dressed, returned to her apart-

ment, located at 446 South Rampart Boulevard in Los

Angeles. When she entered her apartment, respond-

ent grabbed her and choked her so hard that she be-

came unconscious. [Rep. Tr. pp. 13-34, 135-39.] She

remained unconscious for about 15 to 20 minutes.

When she regained consciousness, she was lying naked

on her bed. Respondent again choked her while she

begged him to release her. [Rep. Tr. pp. 140-41.]

They struggled and at some time during the struggle,

Miss Jano grabbed respondent’s wrist watch and threw

it on the floor. She also scratched respondent on his

chest. [Rep. Tr. pp. 141-44.] Miss Jano testified that

several minutes thereafter, the manager of the apart-

ment, who was respondent’s mother, knocked on the

door, opened it and told respondent to dress and leave.?

Respondent complied with her request. [Rep. Tr. pp.

144-46. ]

Respondent was arrested the following day. At the

time of his arrest, the police observed abrasions on his

chest. They searched him and found a key to the vic-

tim’s premises and also $123. [Rep. Tr. pp. 314-16,

350.] The victim, Miss Jano, discovered that $60 plus

some coins she collected were missing from her apart-

ment. [Rep. Tr. pp. 147-48.]

*Respondent’s mother, who testified in behalf of respondent

in the trial, denied seeing respondent in Miss Jano’s apart-

ment. However, respondent's mother admitted that Miss Jano

stated that respondent had raped her and that she observed

Miss Jano holding her neck. [Rep. Tr. pp. 591, 596, 601-02.]

a eS ee oe 2p SST TRS DRE Be Ey gE REET

9 2 RRS ER EOS Da ELS Pe eee

—5—

C. Facts Pertaining to the Impeachment Issue

Prior to respondent’s pertinent testimony on direct

examination, proceedings were held outside the pres-

ence of the jury on the issue of whether respondent’s

statement to an officer could be used for impeachment

purposes.

Officer Robert J. Wilson of the Los Angeles Police

Department testified that on March 11, 1970, at about

11:00 a.m., he had a conversation with respondent in

the city jail. He advised respondent of his Miranda

rights. Respondent said he did not want to waive his

right to remain silent. [Rep. Tr. pp. 347, 396-97.]

The officer informed respondent that since respondent

had terminated the conversation by invoking his right

to remain silent, anything respondent would tell him

could not be used in court. He told respondent that

he just “wanted to hear his side of the story.”* [Rep.

Tr. pp. 347, 396-97.] Respondent then told the of-

ficer that he was in Miss Jano’s room when she en-

tered. He gained entry by the use of his mother’s key

to the apartment. After Miss Jano entered, they both

removed their clothes. Subsequently, respondent’s mother

entered and he left. [Rep. Tr. pp. 400-01. ]

The trial court ruled that the officer did not use

coercion to obtain the statement and that if during

respondent’s testimony on direct examination, he were

3The officer’s statement was made in good faith in that he

did not even make any notes regarding the conversation be-

cause it was his opinion that he would not be able to use

anything respondent said against respondent in any court pro-

ceeding. [Rep. Tr. pp. 617-18.]

a

to take a position “adverse” to his out-of-court state-

ment, the district attorney would then be allowed to

cross-examine respondent on his statement and put on

other proof of that statement. [Rep. Tr. p. 428.]

Respondent disregarded the warning of the trial

court and during direct examination testified that the

victim invited him into her apartment. They talked to

each other and eventually an argument ensued. Re-

spondent further testified that while he was in her

room, he was fully dressed and did not hear a knock

on her door. [Rep. Tr. pp. 431-38. ]

During cross-examination, the prosecution was per-

mitted to examine respondent regarding the subject of

his out-of-court statement to the officer. Respondent

admitted that he told a police officer that he obtained

entry to the victim’s apartment by obtaining a key, but

also testified that his statement to the officer was un-

true. He further testified that he told the officer that he

and the victim were unclothed and that his mother en-

tered the room. [Rep. Tr. pp. 510-12.] Officer Wilson

testified as a rebuttal witness to the aforementioned

statement which respondent made. [Rep. Tr. pp. 608-

09. ]

———— =Tege

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REASONS WHY CERTIORARI SHOULD

BE GRANTED

I

This Case Presents the Following Important Constitu-

tional Questions Concerning the Proper Interpreta-

tion of Harris v. New York, 401 U.S. 222 (1971):

In Harris v. New York, 401 U.S. 222 (1971), this

Court limited Miranda v. Arizona, 384 U.S. 436

(1966), in holding that a defendant may be impeached

through the use of voluntary statements obtained from

him without the necessary Miranda warnings. Harris

was a case where the suspect’s statement was inadmis-

sible as part of the prosecution’s case in chief because

he had not been advised of his Miranda rights. The

Court’s rationale was clearly stated:

“The shield provided by Miranda cannot be

perverted into a license to use perjury by way of

a defense, free from the risk of confrontation

with prior inconsistent utterances. . . .” Harris

v. New York, supra, 401 U.S. at 226.

The instant case presents a different kind of Miran-

da violation. Resvondent here was properly advised of

his rights, but the waiver of those rights was invalid

under Miranda because respondent initially invoked his

rights and he made his statements only after the of-

ficer stated that he “just wanted to hear his side of the

story” and that anything he said could not be used in

court. [Rep. Tr. pp. 347, 396-97. ]

— = . . —_

ore: | RS a SE es *

tains

Although the statements of respondent in the instant

case were used solely for impeachment, and the trial

court had held a hearing and ruled that the state-

ments were not coerced and could be used for impeach-

ment if respondent testified in his own behalf in a man-

ner inconsistent with his statements, the California

Court of Appeal reversed respondent’s conviction, hold-

ing that the statements were inadmissible for impeach-

ment under Harris. The California Court of Appeal

reasoned that the invalid waiver of rights made re-

spondent’s statements “involuntary” and hence inadmis-

sible even for impeachment purposes under Harris.

(Appendix A, pp. 7-8.)

Petitioner respectfully submits that the California

Court of Appeal has misunderstood the “voluntariness”

requirement implicit in Harris and has confused validi-

ty of the Miranda waiver—which we submit is not re-

quired by Harris—with voluntariness of the suspect’s

statement—which is required by Harris and which is

present here. The reasoning of the California Court of

Appeal is contrary to the rationale of Harris, preven-

tion of perjury, and is inconsistent with the following _

statement in Harris:

“. . . It does not follow from Miranda that evi-

dence inadmissible against an accused in the pros-

ecution’s case in chief is barred for all purposes,

provided of course that the trustworthiness of the

evidence satisfies legal standards.” Harris v. New

York, supra, 401 U.S. at 224. (Emphasis added. )

When this Court noted in Harris that “. . . Petitioner

makes no claim that the statements made to the police

were coerced or involuntary” (401 U.S. at 224), it

is petitioner’s contention here that the Court meant only

_

eT ERLE OSES AOI I LEE GILLIE LEGS IE ELE LE DES ENLELE LIE LALLA GS ISDE EEO IES |

sw x |

a

that “the trustworthiness of the evidence satisfies legal

standards.” (Jd. at 22).

By focusing on the validity of respondent’s waiver

of Miranda rights, rather than on the voluntariness, i.e.

trustworthiness, of his statement itself, the California

Court of Appeal has misconstrued the purpose of

Harris. Under this interpretation of Harris, statements

of a defendant are admissible for impeachment only

where the defendant was not advised of his Miranda

rights. A whole separate category of cases, represented

by the instant example, is excluded from the applica-

tion of Harris under this interpretation. Under the

California Court of Appeal’s analysis, if the suspect is

advised of his rights but the waiver thereof is invalid

as judged by Miranda requirements, the statement is

“involuntary” and inadmissible for impeachment un-

der Harris.

Petitioner asks this Court to grant certiorari to clari-

fy and define the “coerced or involuntary” statement

(401 U.S. at 224) exception implicit in Harris and to

declare that a statement is “voluntary” and admissible

for impeachment purposes under Harris where the state-

ment is trustworthy and reliable, irrespective of wheth-

er the suspect validly waived the Miranda rights he was

given.

This interpretation which petitioner urges is consis-

tent with the rationale of Harris, which is to permit

the trier of fact to assess the credibility of the defend-

ant by hearing his prior inconsistent statements where he

chooses to take the witness stand and commit apparent

perjury. Under this rationale unreliable, untrustworthy

statements are “involuntary” and inadmissible even for

impeachment because they do not aid, but rather con-

23 RRS SNPS EE ASA NER LS LET I I a RES cs

6S ae RSE: : : 3

_

fuse, the trier of fact in assessing credibility. Trust-

worthy, reliable statements are “voluntary” and admis-

sible for impeachment under Harris because they are

valuable, credible aids to the trier of fact in assessing

credibility. See Brooks v. United States, 449 F.2d 1296

(9th Cir. 1971); Inmates of Attica Correctional Facili-

ty v. Rockefeller, 453 F.2d 12, 27 (2d Cir. 1971)

(Oakes, J., concurring).

Prior to Miranda, the decisions of this Court were

clear that statements of a suspect were admissible in

the case in chief providing that they were obtained freely

and voluntarily. It made no difference that the state-

ments were obtained after interrogation as long as the

free will of the suspect was not overcome. Lyons v.

Oklahoma, 322 U.S. 596, 600 (1944); Ashcraft v.

Tennessee, 322 U.S. 143, 154 (1944); Hysler v. Flori-

da, 315 US. 411, 413 (1942); Wilson v. United States,

162 U.S. 613, 622 (1896). Petitioner construes Harris

as a departure from the mechanical application of the

prophylactic Miranda rules, and, at least for the

purpose of impeachment, a return to the voluntariness

standard of pre-Miranda cases. The officer’s statement

to respondent that he just “wanted to hear his side of

the story” and that respondent’s statement could not be

used in court would not have rendered respondent’s

statement “involuntary” under pre-Miranda standards.

By focusing on the validity of the waiver judged by

Miranda standards, the California Court of Appeal has

limited the application of Harris to situations where the

suspect was never advised of his rights. This petition

raises the important question of whether a suspect’s

waiver may be invalid under the rules established by

Miranda, but his statement may nevertheless be trust-

worthy and “voluntary” under Harris.

—_

Respondent’s statement was voluntary and trust-

worthy. The fact that the officer, in good faith* told

respondent that he just “wanted to hear his side of

the story” and any statements would not be used against

him did not overcome the free will of respondent and

make his statement constitutionally involuntary. No fear

was created and no promise of leniency was made.

Hence, respondent’s statements were made freely with-

out coercion. The reliability and trustworthiness of the

statement is self-evident. Without the limitations con-

tained in Miranda, the statement would be admissible.

Those limitations were removed in Harris for the pur-

pose of allowing the prosecution to employ the truth-

testing device of impeachment and thereby aid the trier

of fact in obtaining the truth.

II

This Is an Appropriate Case to Clarify Conflicts and

Ambiguities in Both Federal and State Court Deci-

sions Construing Harris

The instant factual situation illustrates precisely the

kind of case in which Harris was meant to apply.

The credibility of the prosecutrix and of respondent

was, from a practical standpoint, the single issue be-

fore the jury here, as it generally is in a sex case. In

such cases the jury is generally instructed, and was

instructed here, that such charges are easily made and

4The officer had no thought of using the statements in court

because of Miranda, and he did not even make notes of the

conversation for that reason. [Rep. Tr. pp. 617-18.] Respond-

ent’s statement might have convinced the officer that respondent

was innocent and could have resulted in his release. Moreover,

the statements were not used against respondent in the case in

chief and would not have been used at all had not respondent

taken the stand and told a conflicting story to the jury. Thus,

there was no bad faith or unconscionable unfairness present

as to the officer’s or the prosecutor’s conduct.

"os See age eee

= oe

difficult to defend against, and that for such reason

the law requires the jury to examine the testimony of

the prosecutrix with caution. [Cl. Tr. p. 52.] See

People v. Nye, 38 Cal.2d 34, 39-40, 237 P.2d 1, 4

(1951). In view of the special burdens faced by the

prosecutor and prosecutrix in a sex Case, it is especially

important that the defendant be prevented from further

tipping the scales of justice in his favor by using the

Miranda decision as a shield for perjury. This was the

purpose of Harris and its purpose is particularly ap-

plicable to the instant sex case where the question of

credibility is crucial.

There has been considerable criticism in the press

and the media recently that women labor under spe-

cial disabilities in rape cases and that justice to rape

victims is too infrequently accomplished. Decisions such

as the instant one, if not overturned by this Court,

do much to foster such criticism. Here the trial judge

held a hearing out of the presence of the jury before

respondent took the stand and held that if respondent

took the stand and testified inconsistently with his state-

ment to the police, his statement could be used for im-

peachment. [Rep. Tr. p. 428.] Respondent chose to

disregard the trial judge’s admonition. He should not

be permitted to use Miranda as a shield for perjury.

The jury should not be kept in the dark concerning

crucial evidence bearing on respondent’s credibility, his

prior inconsistent statement to the police. Does Miranda

permit, or does Harris prevent, the kind of miscarriage

of justice that is likely to occur if respondent’s prior

inconsistent statement is kept from the jury? That is

the question presented by this petition for certiorari.

Granting this petition will establish uniformity of de-

cision and eliminate confusion throughout state and

a

federal courts as to the proper interpretation of Harris.

For example, the instant case illustrates one interpre-

tation of Harris, in which an invalid waiver is held

to render the resulting statement involuntary, without

regard to its trustworthiness. Other jurisdictions have

given a similar restrictive reading to Harris. See United

States v. Skillman, 442 F.2d 543, 551 n.6(a), cert.

denied, 404 U.S. 833 (1971); People v. McColor, 36

Mich. App. 455, 194 N.W.2d 99, 100 n.2 (1971);

State of New Jersey v. Slobodian, 120 N.J. Super. 68,

293 A.2d 399, 402 (1972). Contrary to these cases,

other decisions have held that the issue under Harris

is whether the statement is voluntary. United States v.

Penta, 475 F.2d 92, 94 (1st Cir. 1973); United States

ex rel. Wright v. La Vallee, 471 F.2d 123, 125 (2d

Cir. 1972); United States c. McIntyre, 467 F.2d 274,

277 (8th Cir. 1972); Commonwealth v. Harris, 295

N.E.2d 687, 692 (Mass. App. 1973); Crain v. Com-

monwealth, 484 S.W.2d 839, 841 (Ky. App. 1972);

State v. Kassow, 28 Ohio St.2d 141, 277 N.E.2d 435,

439 (1971); Ruffin v. United States, 293 A.2d 477,

480 (D.C. Cir. 1971). Finally, some cases have held

that the issue under Harris is whether the statement is

trustworthy. Brooks v. United States, supra, 449 F.2d

1296 (9th Cir. 1971); Wold v. State, 57 Wis.2d 344,

204 N.W.2d 482, 489-90 (1973).

This confusion should be resolved by this Court and

the instant case presents a clear legal issue and a fac-

tual situation which presents that legal issue dramatical-

ly.

Finally, we note that this Court has very recently

granted certiorari in Tucker v. Michigan, No. 73-482.

One of the issues there appears to be whether leads

discovered through a defendant’s statement obtained in

a" wae

violation of Miranda are admissible under the rationale

of Harris v. New York, supra. The instant case poses

related issues concerning the interpretation of Harris

as to the limitations it has placed on Miranda. In this

regard, it is clear that both this case and Tucker con-

cern the issue of the permissible methods which may be

employed to enable the trier of fact to obtain the

truth. Therefore, it is submitted that the instant case

would be an excellent companion case to the Tucker

case in settling the numerous conflicts which have aris-

en in both federal and state cases.

Conclusion

For the foregoing reasons, petitioner respectfully re-

quests that this petition for a writ of certiorari be

granted.

Respectfully submitted,

EVELLE J. YOUNGER,

Attorney General,

JACK R. WINKLER,

Chief Assistant Attorney

General—Criminal Division,

S. CLARK Moore,

Assistant Attorney General,

FREDERICK R. MILLAR, JR.,

Deputy Attorney General,

DONALD F. ROESCHKE,

Deputy Attorney General,

Attorneys for Petitioner.

BRED LENE RE MTA IPO IN IN ERIE IGM, ATTN 1) AOE ICN CH

APPENDIX A

Opinion of the Court of Appeal

In the Court of Appeal of the State of California,

Second Appellate District, Division Five.

The People, Plaintiff and Respondent v. Robert

James Paschall, Defendant and Appellant. 2d Cr. No.

23008. S.C. No. A282702.

Filed: Aug. 31, 1973.

APPEAL from a judgment of the Superior Court

of Los Angeles County. Jack E. Goertzen, Judge. Re-

versed.

Albert D. Silverman, under appointment by the

Court of Appeal, for Defendant and Appellant.

Evelle J. Younger, Attorney General, Edward A.

Hinz, Jr., Chief Assistant Attorney General, William

E. James, Assistant Attorney General, and James H.

Kiline and Donald F. Roeschke, Deputy Attorneys

General, for Plaintiff and Respondent.

By information, defendant was charged in Count

I, with burglary (Pen. Code, § 459), and in Count

II, with assault with the intent to commit rape (Pen.

Code, § 220). Defendant pleaded not guilty and was

tried by jury. Defendant was found guilty as to both

counts and was sentenced to state prison for the “term

prescribed by law, on merged counts.” Defendant ap-

peals.

At trial, the victim, Kimiko Jano, testified that on

March 10, 1970, she left her apartment at approxi-

mately 6:30 a.m. and returned carrying bags of groceries

at approximately 7:30 p.m. Upon her return, she un-

locked her apartment door and entered. Jano then

went into her kitchen, but before she could set down

re a re EE

=

her groceries, defendant, whom Jano knew to be her

apartment manager’s son, “came from the kitchen, and

grabbed [her] neck, and started choking [her].” De-

fendant was wearing no clothing. Defendant continued

choking Jano and pushed Jano toward, and upon, a

bed. Defendant told Jano to “just keep quiet” and

continued choking Jano until Jano lost consciousness.

Jano regained consciousness approximately 20 minutes

later and found that she was undressed. Defendant

was lying with her on the bed. Jano did not “think”

that she had been raped because she “was on [her]

period and . . . had a tampax.” When defendant real-

ized that Jano was again conscious, he returned to his

attack and began “choking [her] again.” Jano begged

defendant to leave, but defendant responded: “Just be

quiet.” Jano and defendant continued to struggle for

“several minutes” until there was a knock upon her

apartment door. The apartment manager, defendant’s

mother, then opened the door “and she saw [Jano and

defendant} on the floor fighting.” The manager then

told “defendant to get dressed and go away,” and de-

fendant complied. Later that same evening, Jano dis-

covered that $60 and a camera had been taken from

her apartment.

At the close of the prosecution’s case, defense coun-

sel made a motion for discovery of the recollection of

one Sergeant Jerry Wilson as to a conversation be-

tween Wilson and defendant at city jail on March 11,

1970. Specifically, defense counsel sought the court’s

ruling as to whether any of defendant’s statements in

that conversation may have constituted an “admission

, and secondly, whether, if it is determined to be an

admission or a declaration against penal interest,

[whether] it would be admissible in the light of . . .

SAE SE SS? Se es a ee, Se ——————we

Sl ee LE Oy a ee GOEL LET AE EIDE CS

a

Miranda [v. Arizona, 384 U.S. 436] .. . and Harris

v. New York [401 U.S. 222.]” The court, however,

denied the motion without prejudice and ordered the

defense to proceed.

Defendant then testified on his own behalf that on

the date in question, he had been: doing maintenance

work at the apartment building that was managed by

his mother, and that at approximately 6:30 p.m. that

day, defendant had seen Jano in the apartment build-

ing hallway. At this point in defendant’s testimony,

however, proceedings were interrupted, and the court

stated, out of the presence of the jury, that it had re-

considered defense counsel’s discovery motion, and that

the “spirit of discovery . . . compel[led]” that the

motion be granted.

The discovery proceeding was then commenced out

of the presence of the jury, and Wilson testified as

follows: On March 11, 1970, Wilson had conversed

with defendant at city jail. Wilson had advised de-

fendant of defendant’s constitutional rights and then

had asked defendant whether defendant wanted “to give

up the right to remain silent.” Defendant replied:

“No.” Wilson then told defendant “that since [their]

conversation had ended, that anything that [defend-

ant] told [Wilson] could not be used in court and

that [Wilson] wanted to hear [defendant’s] side of

the story.” Defendant then told Wilson that he had

been in Jano’s apartment when Jano returned. De-

fendant had obtained entry into Jano’s apartment by

means of a key that he had taken from his mother’s

apartment. Sometime after Jano had returned, defend-

ant had undressed himself, and Jano had undressed

herself, and they made love. Defendant then hit Jano

because Jano had become “very nervous and upset,

zg ceaieniaden

—

Started screaming, and that this is what [defendant]

dees to his wife, and [defendant] thought if he did the

same thing to [Jano] it would calm her down.” De-

fendant and Jano did not complete their “sex act,” and

defendant thereafter left because defendant’s mother

had come into Jano’s apartment. Defendant denied

taking anything from the apartment.

At the conclusion of the discovery proceeding, de-

fense counsel moved to “suppress any evidence of the

statement attributed to [defendant] on the ground that

it violates .. . Miranda . . . and . . . falls outside the

ambit of Harris v. New York. . . .” In response to de-

fense counsel’s motion, the court ruled that “if the de-

fendant should take a position during this case that is

adverse to . . . some of the things he stated to [Wil-

son], the Court feels that the district attorney is entitled

to cross-examine on those, and ultimately put on proof

of them by way of impeachment.”

The jury was then returned to the courtroom, and

defendant continued his testimony on direct examina-

tion: After defendant’s having encountered Jano in the

apartment building’s hallway, defendant and Jano en-

tered into a casual conversation, and when they had

“walked down as far as [Jano’s} room, . . . [Jano]

asked [defendant] to come in, have a cup of coffee,

or something.” Defendant and Jano then entered Jano’s

apartment. Jano put down “whatever it was that she

was carrying,” and defendant seated himself on a

couch. Jano then seated herself on her bed, and de-

fendant and Jano continued their conversation. Both

were clothed. Defendant then said something “to the ef-

fect that Jano was a gook whore,” and Jano got mad.

Jano then stood and approached defendant, and de-

fendant stood. Jano “started to pound on [defendant’s]

a ae Se a ee en ee a]

—

chest.” Defendant “grabbed” Jano’s arms, but when he

released her, she began to beat and scratch him. De-

fendant then slapped Jano’s face, and left the apart-

ment. Defendant was arrested later that same evening.

On cross-examination, defendant was questioned in

regard to the conversation that he had had with Wilson

at city jail. Defendant, in response to the cross-examina-

tion, testified as follows: Wilson advised defendant of

defendant’s constitutional rights, and defendant told

Wilson that he did not want to waive his rights. Wil-

son then told defendant that “any statement . . . made

could not be used against [him].” Defendant then

told Wilson that he had had a key to Jano’s apart-

ment, and that he had entered the apartment, but what

he had told Wilson was not true, and, in fact, he had

not been in Jano’s apartment when Jano returned. De-

fendant did not tell Wilson that he had made love to

Jano, but did tell Wilson that he and Jano were un-

clothed. Defendant did not tell Wilson that he “had

to hit [Jano] because that is what [defendant did]

to [his] wife under the same circumstances.” Defend-

ant told Wilson that his mother had come into Jano’s

apartment while he was there, but, in fact, his mother

had not come into the apartment. Defendant told Wil-

son that “at some time [he] and . . . Jano were laying

[sic] on the bed together.”

Wilson was then called as a defense witness and

was questioned as to his aforementioned conversation

with defendant at city jail.

Defendant’s mother, June Kraft, was then called

as a defense witness, and testified as follows: On the

day in question, sometime after dark, she went to

Jano’s apartment. Kraft knocked on Jano’s door and

eailines

heard Jano say “come in.” Kraft opened Jano’s un-

locked door and entered the apartment. Jano was nude,

sitting on the side of her bed and holding her throat.

Kraft saw no other person in the apartment. Jano

made a “complaint” to Kraft, in response, Kraft sum-

moned the police.

At the close of trial, the jury was given the follow-

ing instruction: “Evidence has been ruled admissible

in this case that on some former occasion the defend-

ant may have made a: statement or statements that

were inconsistent with his testimony in this trial. Such

testimony may be considered by you only for the lim-

ited purpose of testing the credibility of the witness.

Such inconsistent statements, if made, must not be con-

sidered by you as evidence in any way of the truth of

the matter contained in such statements.’ It is for you,

the jury, to determine whether the statements were

made and the effect, if any, such statements have on

the credibility of the witness.”

On appeal, defendant contends that the court erred

in allowing the prosecution to impeach defendant by use

of the March 11, 1970 conversation between defend-

ant and Wilson. We agree.

Preliminarily, we note that the court was correct in

holding that none of defendant’s statements from the

conversation could be used for the truth of the state-

ment’s contents, but it did not go far enough; the state-

ment should have been excluded in toto. “One of

the primary ‘protective devices’ envisioned by Miranda

is that requiring that custodial interrogation wholly

cease when the suspect indicates in any manner that he

1This is an incorrect statement of the law (see Evid. Code,

§ 1235; People v. Green, 3 Cal.3d 981) except in the limited use

under the circumstances of Harris, supra. (See discussion, infra.)

ESS EEE ELLE. ENGL GI EOL OBE SEIS LETS TOSI BA eS OS RA CLSPLBDIL

—

wishes to exercise his Fifth Amendment privilege. A

suspect may indicate such a wish in many ways. He

may, as in [People v. Fioritto, 68 Cal.2d 714,] refuse

to sign a waiver of his constitutional rights; he may

simply refuse to continue an interrogation already in

progress; or he may, as in the instant case, ask for an

attorney. “Without the right to cut off questioning, the

setting of in-custody interrogation operates on the in-

dividual to overcome free choice in producing a state-

ment after the privilege has been once invoked. If the

individual states that he wants an attorney, the interro-

gation must cease until an attorney is present.’ (Italics

added.) (Miranda v. Arizona, supra, 384 U.S. 436,

474 [16 L.Ed.2d 694, 723].)” (People v. Ireland,

70 Cal.2d 522, 535-536.) Here, both Wilson and de-

fendant testified that defendant had manifested to Wil-

son, prior to their conversation, that defendant did not

desire to forfeit his right to remain silent. Wilson’s en-

suing examination of defendant was therefore improper,

and defendant’s statements made during the course of

that conversation could not be introduced for the truth

of their contents.

The People argue, however, that notwithstanding

the inadmissibility of the statements for the truth of their

contents, defendant’s statements were nonetheless ad-

missible for the limited purpose of impeaching defend-

ant’s in-court testimony. We disagree.

We recognize, of course that in Harris, supra, the

court held that an accused’s custodial interrogatory

responses taken in the absence of Miranda warnings,

though not admissible for the truth of the accused’s

responses, were admissible for the purpose of impeach-

ing the accused’s in-court testimony. In Harris, how-

_—| RE RSS OE Ae EER ET ES Oe LN ET TS

-_

ever, the court stated specifically that the accused

“makes no claim that the statements . . . were coerced

or involuntary” (at p. 224), and in this regard, the

court in People v. Rice, 16 Cal.App.2d 337, 344,

wrote the following: “Harris holds voluntary statements

made to officers where no Miranda warning is given

may be used to impeach a defendant’s testimony. This

case does not apply here, however. There is no claim

that Miranda warnings were not given; defendant him-

self testified they were. But unlike Harris, where the

[accused] made ‘no claim that the statements made to

the police were coerced or involuntary,’ defendant here

asserted his statement was involuntary because obtained

by a promise of leniency. Harris cannot be read as sanc-

tioning the use of involuntary statements for impeach-

ment or any other purpose. . . .” (Cf. People v. Taylor,

8 Cal.3d 174, 184-185; People v. Walker, 29 Cal.

App.3d 448, 453-454.)

Likewise, in the case before us, defendant argues

that his statements to Wilson were involuntary be-

cause, as Wilson admitted, Wilson had told defendant

that “anything that [defendant] told [Wilson] could

not be used in court. . . .” We agree. Since Miranda

has told us that “any evidence that the accused was...

tricked, or cajoled into a waiver will, of course, show

that the [accused] did not voluntarily waive his priv-

ilege” (at p. 476), and that “the setting of in-custody

interrogation operates on the individual to overcome

free choice in producing a statement after the privilege

has been once invoked” (at p. 474; emphasis added),

we must therefore hold that defendant’s post-Miranda-

warnings statements were not voluntary. Therefore, pur-

suant to the rule of People v. Rice, supra, it was error

for the court to allow defendant’s statements to Wil-

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son for the purpose of impeaching defendant’s in-court

testimony.

The People argue in the alternative, however, that

even if defendant’s statements should not have been used

for impeachment, the error was not reversible. We dis-

agree. Jano testified that defendant had sexually as-

saulted her, and that the assault had been interrupted

by the appearance of defendant’s mother. Defendant

denied the assault, and defendant’s mother denied hav-

ing seen defendant in Jano’s apartment. The case, there-

fore, turned on credibility, and we cannot say that

defendant’s impeachment by the use of defendant’s

conversation with Wilson was harmless beyond a rea-

sonable doubt. (Chapman v. California, 386 U.S. 18,

24.)

The judgment is reversed as to both counts.

NOT FOR PUBLICATION.

Stephens, J.

We concur:

Kaus, P. J.

Hastings, J.