Petition for a Writ of Certiorari — California v. Stewart

S

SUBJECT INDEX

Page

IN RIOR iscirisicemninevinrsohieemeapaisinns 1

Jurisdiction ......... | 1

OIE PRIA sepeccscsssseitensinermseececenannspeslinsuign cncniebin 2

Statement of the case i ; ane

EEE a SER aN 3

How the federal question arose

Reasons why a writ of certiorari should be granted.. 6

1. The decision below rests upon a misinterpre-

tation of Escobedo v. Illinois, 378 U.S. 478 .. 6

2. Even if the court below was correct in its

interpretation of Escobedo, it was an un-

warranted extension of that decision to place

upon the prosecution the burden of proving

waiver ae 8

Conclusion ......... : TUS G

Appendix A—Opinion of the Supreme Court ........ 1

Concurring Opinion of Burke J. to Opinion

of Tobriner, J 15

Dissenting Opinion of Schauer, J. to Opinion of

Tobriner, J. é 15

Appendix B—Modification of Opinion ....................

. ae

rn a

TABLE OF AUTHORITIES CITED

Cases Page

Anderson v. State, 205 A. 2d 281-0000... 7

Ne OO, Te Fc Oe I eartrcereerceseckcntienictenrens 7

Biddle v. Comm., 141 S.E. 2d 710 -20.0.....2.eeeeeeeseeeeee 8

Browne v. State, 131 N.W. 2d 169...........0....2..:c00-0-000 7

Carnley v. Cochran, 369 U.S. 606..................-c-0c-00-+- 6

NE, OSI, Be Bey, Be FOE wcrc peices scsgeeenenesavers 7

Comm. v. Patrick, 206 A. 2d 295 ........ na py

ea ie ay | A aS 7

Cowans v. State, 209 A. 2d 552 ..2..0....n...eceeceeccsesee 7

Davis v. State, 388 S.W. 2d 940 Gs Bip:

Escobedo v. Illinois, 378 U.S. 478 2.0.0.0... 5, 6

Galarza Cruz v. Delgado, 233 F. Supp. 944................ 7

Jackson v. United States, 337 F. 2d 136 .................. 8

Long v. United States, 338 F. 2d 549 ow... 8

Morford v. State, 395 P. 2d 861 ...02.....00 eee eee 7

People v.. Agar, 253 N.Y.S. 24 76) no etsissstinss 7

People v. Dorado, 62 A.C. 350, 42 Cal. Rptr. 169 ..

REA PME es oe eNO EE REE pa EE oe

People v. Golson, 207 N.E. 2d 782 ...... 7

People v. Gunner, 15 N.Y. 2d 226, 205 N.E. 2d 852 =

People v. Hartgraves, 202 N.E. 2d 33 7

People v. Lewis, 207 N.E. 2d 65 .00.0.....---csscecscceseeeesees 7

People v. Scanlon, 84 N.J.S. Ct. 427, 202 A. 2d 448.. 7

Page

People v. Stewart, 62 A.C. 597, 62 A.C. 648, 43

Cal. Rptr. 201 ee 1, 3

State v. Dufour, 206 A. 2d 82 ............ ae

State v. Elam, 263 N.C. 273, 139 S.E. 2d 601 .......... 7

State v. Fox, 131 N.W. 2d 684..... 7

State v. Hall, 397 P. 2d 261 7

State v. Longmore, 134 N.W. 2d 66 oe

State v. McLeod, 203 N.E. 2d 349 uw eeeeeeee 7

State v. Mendes, 210 A. 2d 50 7

State v. Neely, 398 P. 2d 482 7

State v. Upchurch, 141 S.E. 2d 528 7

7

7

State v. Winsett, 205 A. 2d 510

State v. Worley, 132 N.W. 2d 764

United States v. Childress, 347 F. 2d 448 ............ 8

United States v. Ogilvie, 334 F. 2d 837 8

Ward v. Comm., 205 Va. 564, 138 S.E. 2d 293 ........ 8

Statute

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

IN THE

Supreme Court of the United States

October Term, 1965

No. ........

STATE OF CALIFORNIA,

Petitioner,

US.

Roy ALLEN STEWART,

Respondent.

Petition for Writ of Certiorari to the

Supreme Court of the State of California.

The State of California prays that a Writ of Cer-

tiorari issue to review the judgment of the Supreme

Court of California entered in the above case on March

25, 1965, as modified on April 21, 1965.

Opinions Below.

The opinion and modification of opinion of the Su-

preme Court of the State of California, printed in Ap-

pendix A hereto, are reported in 62 A.C. 597, 62 A.C.

648, and 43 Cal. Rptr. 201.

Jurisdiction.

The Supreme Court of the State of California first

entered judgment in this case on March 25, 1965. A

timely petition for rehearing was filed and denied on

April 21, 1965, at which time the opinion was modified.

(People v. Stewart, 62 A.C. [Minutes], No. 25, p. 1.)

siete

Petitioner invokes the jurisdiction of this court under 28

U.S.C., §1257(3), since a right has been especially set

up and claimed under the Constitution of the United

States.

Questions Presented.

1. Is a free and voluntary confession by a defend-

ant, who has neither requested nor been refused counsel,

inadmissible in a State criminal trial by reason of the

Constitution of the United States solely because the

investigating officers did not advise him of his right

to consult with counsel and his right to remain silent?

2. Is a free and voluntary confession by a defend-

ant, who has neither requested nor been refused

counsel, inadmissible in a State criminal trial by reason

of the Constitution of the United States because

the prosecution did not establish that the defendant at

the time of the questioning made a knowing and in-

telligent waiver of both (a) his right to consult with

counsel and (b) his right to remain silent?

3. If so, is such a free and voluntary confession

inadmissible where the record does not affirmatively

establish that the defendant was not advised of his

rights and did not waive them?

Statement of the Case.

In an informatict: filed by the District Attorney of

Los Angeles County, respondent was charged with two

counts of kidnapping to commit robbery, five counts of

robbery, one count of rape, and one count of murder.

[Clk. Tr. pp. 1-9.]’ In a jury trial, he was found

1Clk. Tr. refers to the Clerk’s Transcript and Rep. Tr. refers

to the Reporter’s Transcript. Certified copies of these proceed-

ings in the State court accompany this petition.

wa “

natin

guilty of four counts of first degree robbery and one

count of first degree murder and was acquitted on

the other counts. [Clk. Tr. pp. 27-28.] At the con-

clusion of a separate trial on the question of penalty,

the jury determined that respondent should suffer death

and he was sentenced to death. [Clk. Tr. pp. 40-42.]

Upon his automatic appeal to the California Supreme

Court, the judgment was reversed. People v. Stewart,

62 A.C. 597, 62 A.C. 648, 43 Cal. Rptr. 201.

Statement of Facts.

The essential facts may be summarized as follows:

Respondent was found guilty of murdering Miss

Lucille Mitchell and robbing Mrs. Meriwether Wells,

Mrs. Tsuru Miyauchi, Mrs. Beatrice Dixon and Miss

Maria Ramirez. Each woman was struck down while

walking along the street [Rep. Tr. pp. 365-384, 505-511,

525-532, 551-555, 560-567, 604-609.] Miss Mitchell was

kicked to death and the other women were injured with

varying degrees of severity. [Rep. Tr. pp. 376-384,

528-532, 557-558, 585-588, 631-632, 649-657, 663-664,

666-668, 671. |

There was evidence that respondent endorsed the

name of Mr. Wells to three dividend checks which had

been stolen from Mrs. Wells [Rep. Tr. pp. 419-423,

462-468, 470-471, 475-487.] After learning respond-

ent’s identity, the investigating officers went to his

house, where he was arrested for robbery on the even-

ing of January 31, 1963. [Rep. Tr. pp. 690-693, 696-

698.] A -harga-plate belonging to Miss Mitchell had

previously been found near the body of Miss Ra-

mirez. [Rep. Tr. pp. 687-688.] In a search of re-

spondent’s house immediately after his arrest, the of-

— ao

anilion

ficers found a purse and wallet belonging to Mrs. Wells,

a coin purse belonging to Mrs. Miyauchi, a watch be-

longing to Miss Mitchell, a wallet and purse belonging

to Miss Ramirez, and a coin purse belonging to Mrs.

Dixon. [Rep. Tr. pp. 699-705.] In a later search which

took place on February 3rd, the officers found a pair of

glasses belonging to Miss Ramirez and a cuff link, a

case and an ear plug for a transistor radio belonging to

Miss Mitchell. [Rep. Tr. pp. 705-708. |

Respondent was questioned briefly on January 31st,

February lst, February 3rd, February 4th and

February 5th. According to the investigating officers,

he participated freely and voluntarily in the conversa-

tions. [Rep. Tr. pp. 710-712. ]

On January 3lst and February Ist, respondent de-

nied endorsing and cashing the Wells dividend checks.

[Rep. Tr. pp. 712-713, 716-720.) Then, on February

3rd, and after talking to his girlfriend, Lillian Lara, he

admitted endorsing and cashing them but said that he

found them on the street. [Rep. Tr. pp. 720-722.]

Shown on February 4th the items recovered from his

house, respondent denied having seen them but he also

claimed that Mrs. Wells’ purse was one he brought with

him when he moved in. [Rep. Tr. pp. 722-725.] In a

later conversation on the 4th, he said that someone had

brought Miss Ramirez’ pursue to his house, he claimed

to have found Mrs. Miyauchi’s coin purse on the street

and, as to Miss Mitchell’s watch, he said first that

someone brought it to his house and then that he bought

it on the street as a present for Lillian Lara. [Rep. Tr.

pp. 725-726.] On February 5th, respondent admitted

robbing Miss Mitchell, then admitted killing her, stating

that he could have kicked her in the head after she fell.

a

He persisted in denying his guilt of the other robberies.

[Rep. Tr. pp. 735-739, 743-745, 788-790. ]

As previously mentioned, the investigating officers

testified that respondent’s statements were entirely vol-

untary. Respondent testified, among other things, that

he admitted his guilt of the Mitchell murder because the

officers told him that unless he did so, they would not

release Lillian Lara, who was pregnant and had also

been arrested for robbery. [Rep. Tr. pp. 823-824, 855-

857, 872-873.] This the officers denied. [Rep. Tr. pp.

746, 751-753, 766-767, 783, 940-941, 964-966].

There was no evidence that respondent asked to see

an attorney and the record does not show whether he

was or was not advised of his right to counsel and his

right to remain silent.

salle

How the Federal Question Arose.

This case is yet another grandchiid of Escobedo v.

Illinois, 378 U.S. 478 and yet another child of People

v. Dorado, 62 A.C. 350, 42 Cal. Rptr. 169, cert. den.

... U.S. ..... In Dorado, the Supreme Court of Cali-

fornia felt constrained by Escobedo to hold as a matter

of federal constitutional law, that once the “accusatory”

stage of a police investigation is reached, the police

must advise a suspect who has not requested and

been denied counsel of his right to consult with coun-

sel and to remain silent, and that if he does not waive

those rights, his free and voluntary confession may not

be used against him at his trial. In the instant case,

the California Supreme Court felt itself constrained by

Escobedo and Dorado to hold, as a matter of federal

constitutional law, that unless it appears affirma-

tively from the record that the police gave the requisite

a a

aval

caution and that the suspect gave the requisite waiver,

it will be presumed that there was no warning and no

waiver. The issues were briefed and argued before the

California Supreme Court and petitioner challenged the

correctness of the decision in a timely petition for re-

hearing.

Reasons Why a Writ of Certiorari

Should Be Granted.

1. The Decision Below Rests Upon a Misinterpretation

of Escobedo v. Illinois, 378 U.S. 478.

The Supreme Court held, relying on Dorado, that re-

spondent was deprived of a federal right when his

free and voluntary confessions were received in evidence

against him. The question, therefore, is not whether it

is good practice for the police to caution suspects dur-

ing interrogation, nor is it whether a State court may

fashion a state rule of evidence requiring the police to

give legal advice. The question is, rather, whether the

Constitution of the United States compels the police to

caution suspects or to suffer the exclusion of free and

voluntary confessions, which are reliable evidence of

guilt.

It is unnecessary for petitioner to quote to this Court

the substance of its own ruling in Escobedo, which

holds merely that the State must honor a suspect’s re-

quest to see his attorney during interrogation. It is a

far cry from that careful and very limited decision to

a ruling that the police must arraign suspects before

questioning them with the same formalities required in

judicial proceedings. Cf., Carnley v. Cochran, 369 U.S.

606.

‘le

This Court denied certiorari in Dorado, but it like-

wise denied certiorari in an Illinois case which specifi-

cally rejected the Dorado rule. In addition, Dorado is

contrary to a number of federal cases, as well as to de-

cisions in Massachusetts, New York, Pennsylvania, Wis-

consin, North Carolina, Virginia, Maryland, Idaho,

Nebraska and Nevada.’ Certiorari should be granted

here, if only to secure uniformity of interpretation

upon a constitutional question of the first importance to

the administration of justice in every State.

*People v. Hartgraves, 202 N.E. 2d 33 (Ill. 1964), cert.

den. ;

People v. Lewis, 207 N.E. 2d 65, 66 (Ill. 1965) ;

People v. Golson, 207 N.E. 2d 782 (Pa. 1964) ;

Comm. v. Coyle, 203 A. 2d 782 ra 1964) ;

Comm. v. Patrick, 206 A. 2d 295, 299 (Pa. 1965) ;

Browne v. State, 131 N.W. 2d 169 (Wis. 1964) ;

State v. Upchurch, 141 S.E. 2d 528, 531 (No. Car. 1965) ;

State v. Elam, 263 N.C. 273 , 139 S.E. 2d 601, 607 (No.

Car. 1965) ;

State v. M cLeod, 203 N.E. 2d 349 (Ohio 1964) ;

Cowans v. State, 209 A. 2d te (Md. 1965) ;

Anderson v. State, 205 A. 2d 281 ( Md. 1964) ;

State v. Hall, 397 P. 2d 261, 264-265 (Idaho 1964) ;

State v. Worley, 132 N.W. 2d 764 (Neb. 1965) ;

Morford v. State, 395 P. 2d 861 (Nev. 1964) ;

Bean z. State, 398 P. 2d 251, 253-255 (Nev. 1965) ;

State v. Fox, 131 N.W. 2d 684 (Iowa 1964) ;

erty Gunner, 15 N.Y. 2d 226, 205 N-E. 2d 852 (N.Y.

1

Comm. v. Roy, 207 N.E. 2d 284, 288 (Mass. 1965).

Intermediate appellate courts further support our position.

People v. Agar, 253 N.Y.S. 2d 761 (1964) ;

Davis v. State, 388 S.W. 2d 940, 941 (C.C.A. Tex. 1965) ;

Bars oP Vv. Scanlon, 84 N.j.S. Ct. 427, 202 A. 2d 448

(1964) ;

Cf. State v. Neely, 398 P. 2d 482 (Ore. 1965) ;

State v. Dufour, 206 A. 2d 82 (R. I. 1965) ;

State v. Mendes, 210 A. 2d 50, 52-54 (R. I. 1965) ;

Galarza Cruz v. Delgado, 233 F. Supp. 944, 948 (D. Puerto

Rico 1964) ;

See too,

State v. Winsett, 205 A. 2d 510, 525 (Del. Super. Ct.

1964) ;

—

‘aiciloes

2. Even if the Court Below Was Correct in Its Interpre-

tation of Escobedo, It Was an Unwarranted Extension

of That Decision to Place Upon the Prosecution the

Burden of Proving Waiver.

As stated by the Supreme Court, the evidence did not

affirmatively show that the police advised respondent

of his rights and that respondent waived them. But it

did not show that the police did not advise respondent

of his rights and that respondent did not waive

them. In reversing the judment, the Supreme Court

decided that the People were under an affirmative ob-

ligation to establish waiver and held that when the

record is silent, waiver will not be presumed.

Petitioner submits that this further holding-is un-

sound and is not compelled by the Constitution of the

United States. It is common knowledge that suspects,

particularly those with prior convictions, are well aware

of their rights.* The instant holding that a silent

record militates against the People is based upon the

contrary assumption that they do not know their rights.

Petitioner submits that even if the Dorado rule is con-

stitutionally sound, a defendant should bear the burden

of establishing that he did not know his rights and

did not waive them if he seeks to exclude his own free

and voluntary confession from the evidence.

Ward v. Comm., 205 Va. 564, 138 S.E. 2d 293 (Va. 1964) ;

Biddle v. Comm., 141 S.E. 2d 710, 713;

State v. Longmore, 134 N.W. 2d 66 (Neb. 1965) ;

— States v. Ogilvie, 334 F. 2d 837, 843 (7th Cir.

1964) ;

Long v. United States, 338 F. 2d 549, 550 (D.C. Cir.

1 .

964) ;

Jackson v. United States, 337 F. 2d 136 (D.C. Cir. 1964) ;

United States v. Childress, 347 F. 2d 448, 450 (7th Cir.

1965).

3Respondent admitted having suffered two prior felony convic-

tions. [Clk. Tr. pp. 10, 14.]

ee ————

-

canis

Conclusion.

For the reasons discussed above, petitioner submits

that a writ of certiorari should issue to review the de-

cision of the court below.

Tuomas C. Lyncu,

Attorney General,

WILLIAM E. JAMEs,

Assistant Attorney General,

GorDON RINGER,

Deputy Attorney General,

Attorneys for Petitioner.

APPENDIX “A”,

Opinion of the Supreme Court.

In the Supreme Court of the State of California, in

Bank.

The People, Plaintiff and Respondent, v. Roy Allen

Stewart, Defendant and Appellant.

Filed: March 25, 1964.

William I. Sullivan, Clerk.

S.F. Deputy

Crim. 7662

The jury found defendant guilty of robbery and mur-

der of the first degree and fixed the penalty at death.

The trial court denied his motion for a new trial

and for a reduction of the penalty. This appeal is au-

tomatic (Pen. Code, § 1239, subd. (b)).

Defendant contends that his confession was improp-

erly admitted at the trial because he was not informed

of his right to counsel and of his right to remain silent

prior to the time he confessed and because he gave

his confession involuntarily. He also contends that dur-

ing the penalty trial the trial judge gave an instruc-

tion condemned in People v. Morse (1964) 60 Cal.2d

631.

Since we conclude that the admission of defendant’s

confession constituted reversible error in view of our re-

cent holding in People v. Dorado (1965) 62 A.C. 350,

we need not reach the issues raised by defendant’s other

cqmtentions.

Po orine December 1962 and January 1963 a series of

robberies accompanied by beatings took place in a neigh-

as

borhood of Los Angeles. On December 21, 1962, an as-

sailant struck Mrs. Meriwether Wells while she was

walking down the street and took from her a handbag

containing $5 to $10, a wallet bearing her maiden name,

charge-a-plates in the names of Mr. and Mrs. Robert

K. Wells, a salary check payable to Mrs. Wells, a salary

check payable to Mr. Wells, and three dividend checks.

Mrs. Wells, who suffered a fractured jaw, said that

the culprit was a “colored man,” but she was unable

to identify him.

On January 10, 1963, someone robbed Mrs. Tsuru

Miyauchi of her leather lunch bag, containing a red

change purse with her daughter’s name on it, pictures,

keys, and $8 to $10 in cash. As she was walking down

the street, the assailant hit her on the head with a

blunt instrument, causing her to suffer a fractured

skull and a broken nose. She could not identify the

robber.

On January 19, 1963, Miss Lucile O. Mitchell was

beaten and robbed of a silver cufflink, a transistor

earplug, a black leather case for such an earplug, a

watch, and a charge-a-plate. Miss Mitchell, who was

found on a house porch, subsequently, without have iden-

tified the attacker, died from a head wound.

On January 25, 1963, Mrs. Beatrice Dixon, while

walking down a street, was hit on the head and robbed

of her large leather bag containing a billfold, $23, a

black coin purse, cash, and a door key on a chain

bearing her initial, “B.” Mrs. Dixon could not identity

the person who hit and robbed her.

When, on January 30, 1963, Miss Maria Louisa

Ramirez was walking down a street, someone hit her

-—

on the side of her head. When she regained: conscious-

ness, her purse containing a wallet, coin purse,:and-a

pair of glasses in a case were gone. The police officer

investigating the robbery found the charge-a-plate

taken from Miss Mitchell on the ground about 18

inches from the place where Miss Ramirez had been

lying. A witness to the crime testified at the trial that

defendant looked like the assailant, but she did not

make a positive identification.

Mr. Wells, husband of the first of the above victims,

reported to the police that the dividend checks stolen

from his wife bore the endorsement, “Robert K.

Wells.” He said that he had never endorsed the checks.

The police then interviewed a Mr. Sam Newman, who

operated the market where the checks had been cashed.

Mr. Newman related that because the person who

cashed the checks lacked identification, a Mrs. Lena

Franklin, who was then in the store and was apparently

acquainted with the defendant, cosigned them. On Janu-

ary 31, Mrs. Franklin pointed out to a police officer

the defendant as the one who cashed the checks.

The police officer went to defendant’s residence and

there informed him that he was under arrest for a

series of “purse snatch robberies.”” When the officer

asked if he could search the house, the defendant re-

plied, “Go ahead.” During the search, the officer found

Mrs. Wells’ purse and wallet, Mrs. Miyauchi’s coin

purse attached to a key that operated the door to de-

fendant’s house, Miss Mitchell’s watch. Mrs. Dixon’s

coin purse and initialed key, and Miss Ramirez’ wallet.

On February 3, during a further search of the house

the police found Miss Ramirez’ glasses and Miss Mitch-

ell’s cufflink, transistor earplug and case.

ag

wii es

Likewise on January 31, the police arrested four

other people who were in the house at the time of de-

fendant’s arrest. The police later determined that besides

defendant the only other people who actually lived in

the house were a woman referred to as Lillian Lara’

and her daughter. The police interrogated all five per-

sons.

The police officers testified at the trial that during

the interrogations of the defendant on January 31, and

on February 1 he denied any knowledge of the checks,

even though confronted by Mrs. Franklin, the cosigner

of the checks. A tape of the January 31 interrogation

was introduced at the trial for impeachment purposes.

According to one of the officers, on February 3 de-

fendant said that if he could see Lillian Lara he might

have “something to say.” After a meeting with her, de-

fendant admitted signing Wells’ name to the checks

and cashing them, but he claimed that he found the

checks; he also denied having seen any of Mrs. Wells’

other belongings prior to the date of the interrogation.

On February 4 the police showed defendants the ob-

jects found in his residence, but, according to the

police officers, he denied having seen them before.

One of the officers testified that defendant then said

that he had brought the purse, subsequently identified

as belonging to Mrs. Wells, to his house when he had

moved there two months earlier. He also told the police

that other people had brought some of the other stolen

objects into the house. A police officer testified that

1Some question arose as to whether defendant and Lillian Lara

were married. During the January 31 interrogation, which was

recorded, defendant referred to a “Lillian Davis” as a “girl friend”

at whose house he spent two or three nights a week. Defendant

testified that he and Lillian Lara had been married in Mexico.

xin

defendant denied having seen Miss Ramirez’ wallet;

but the defendant said he found Mrs. Miyauchi’s coin

purse on the street. Another officer testified that when

the defendant was shown Miss Mitchell’s watch he at

first denied having previously seen it, but then said

someone brought it to his house. He later said he had

bought the watch on the street and had given it to

Lillian Lara.”

On February 5 defendant admitted that he robbed

Miss Mitchell. An officer testified that defendant ex-

pressed sorrow at having killed Miss Mitchell and said,

“T didn’t mean to kill her.” The police then recorded

an interrogation during which defendant again admitted

robbing Miss Mitchell. He denied hitting Miss Mitchell

on the head; he did say, however, that he could have

kicked her in the head after she fell and while he was

escaping. He continued to insist that he had not par-

ticipated in the other robberies.

The police brought defendant before a magistrate

for the first time shortly after his confession. They

then released the other persons arrested in connection

with the crimes. An officer testified that an investiga-

tion of these people revealed “no evidence to connect

them with any crime.”

2At the trial defendant denied having said at any time that

he had never seen the dividend checks or that he had found the

checks. He asserted that a Jackie Jackson gave him the checks

to cash. He also denied having said that he never saw Miss

Mitchell’s watch or having said that he had purchased it. He

testified that Jackie Jackson and a Louis Bookman brought the

stolen goods to his house. Jackie Jackson also testified that

Louis Bookman brought the stolen gcods to the house. Linda

Lara, Lillian Lara’s daughter, testified that Bookman and Jackie

Jackson were in the house and that Jackie Jackson used Miss

Mitchell’s charge-a-plate.

‘icin

The transcriptions of the January 31 interrogation

and of the February 5 confession of the robbery and

other incriminating statements were admitted into evi-

dence without objection, although during the trial de-

fendant contended that he gave his confession involun-

tarily.* Nothing in the record indicates whether or not

defendant was informed prior to his confession of his

rights to counsel and to remain silent or whether he

otherwise knowingly and intelligently waived those

rights.*

Following the decision of the United States Su-

preme Court in Escobedo v. Illinois (1964), 378 U.S.

478, we held in People v. Dorado (1965), 62 A.C, 350,

365, “that defendant’s confession could not properly be

introduced into evidence because (1) the investigation

was no longer a general inquiry into an unsolved crime

but had begun to focus on a particular suspect, (2)

the suspect was in custody, (3) the authorities had car-

ried out a process of interrogations that lent itself to

eliciting incriminating statements, (4) the authorities

had not effectively informed defendant of his right to

counsel or of his absolute right to remain silent, and

no evidence establishes that he had waived these rights.”

The instant case presents the following principal

questions: (1) whether, at the time defendant uttered

5Although the record does not indicate that the trial judge

made an independent determination of whether the confession was

voluntary, we do not probe the problem raised by Jackson v.

Denno (1964), 378 U.S. 368, since we reverse on other grounds.

‘The Attorney General admits that there is nothing “specifically

. showing whether appellant was or was not advised of his ‘right

to counsel and right to remain silent at the interrogation.’” In

a number of instances, the police officers conducting the inter-

rogations were asked to relate everything that was said during

specific interrogations. They at no time indicated that they had

advised defendart of his rights to counsel and to remain silent.

——

Re SS

the confession, the investigation had reached the ac-

cusatory or critical stage so that he was entitled to

counsel, and hence to be advised of his rights to

counsel and to remain silent if he did not otherwise

waive those rights; (2) whether the lack of any in-

dication in the record that defendant was advised of his

rights to counsel and to remain silent precludes a find-

ing that he was so advised. We set forth our reasons

for answering each of these questions in the affirma-

tive.

The United States Supreme Court in Escobedo fixed

the point at which a suspect is entitled to counsel is

that at which “the process shifts from investigatory to

accusatory—when its focus is on the accused and its

purpose is to elicit a confession. . . .” (378 U.S. at p.

492.) The court also characterized the time when a per-

son needs the “guiding hand of counsel” as that when

the “investigation had ceased to be a general investi-

gation of ‘an unsolved crime’”; at that time the de-

fendant “had become the accused, and the purpose of

the interrogation was to ‘get him’ to confess his guilt

despite his constitutional right not to do so,” (Jd. at

pp. 485, 486.)

Normally “the investigation is no longer a general in-

quiry into an unsolved crime but has begun to focus on

a particular suspect” (Id. at p. 490) at that point when

the police officers placed that suspect under arrest.

But Escobedo indicates that the accusatory or critical

state is not reached unless another event occurs: the

police must “carry out a process of interrogations that

lends itself to eliciting incriminating statements.” (Jd.

at pp. 490-491; see also Jd. at pp. 485, 492.) That proc-

ess may be undertaken either before or after arrest.

Whenever the two conditions are met, that is, when

enn cg

sical

the officers have arrested the suspect and the officers

have undertaken a process of interrogations that lends

itself to eliciting incriminating statements, the accusa-

tory or critical stage has been reached and the suspect

is entitled to counsel.

We believe that the arrest encompasses two of the

circumstances which produced the accusatory stages in

the Escobedo and Dorado cases: (1) the investigation is

no longer a gerieral inquiry into an unsolved crime

but has begun to focus on a particular suspect, and (2)

the suspect is in custody.

An arrest fulfills the first requirement that the in-

vestigation has begun to focus on a particular suspect.

The Penal Code itself conditions the arrest upon the

presence of reasonable ground for the belief that the

individual committed the offense; section 813 predicates

the issuance of a warrant upon “reasonable ground to

believe that the defendant has committed” the otfense;

section 836 requires that the arrest must rest upon the

officer’s reasonable cause for ee the person com-

mitted the offense.

“Probable cause for an arrest,’ we have said,

shown if a man of ordinary caution or prudence would

be led to believe and conscientiously entertain a strong

suspicion of the guilt of the accused. . . . Probable cause

may exist even though there may be some room for

doubt. . . . The test in such case is not whether the

evidence upon which the officer made the arrest is suf-

ficient to convict but only whether the prisoner should

stand trial.”’ (People v. Fischer (1957) 49 Cal.2d 442,

446; see generally, Witkin, Cal. Crim. Proc. (1963) pp.

102-104: Fricke, Cal. Criminal Procedure (6th ed. 1962)

pp. 19-20.)

ce

The arrest includes “custody,” the second condition

present in Escobedo and Dorado. By definition in this

state, an element of an arrest is custody. Thus, section

834 of the Penal Code states “An arrest is taking a per-

son into custody... .”

Since, once a person has been properly placed under

arrest, probable cause must support it, we conclude that

the investigation has at least “begun to focus on a par-

ticular suspect.” (378 U.S. at p. 490; emphasis added.)

Indeed, as the court said in a case which, although based

upon the McNabb-Mallory rule, cites Escobedo, “Ordi-

narily, arrest is the culmination, not the beginning, of

police investigation.” (Greenwell v. United States

(1964) 336 F.2d 962, 966.)

We turn to the further requirement of Escobedo that,

beyond the “focus” and custody, the accusatory stage

matures upon the undertaking by the police of a “proc-

ess of interrogations that lends itself to eliciting in-

criminating statements.” (378 U.S. at p. 491; see id.

at pp. 485, 492; United States v. Konigsberg (3rd Cir.

1964) 336 F. 2d 844, 853.)° Although in most cases the

process of interrogations following an arrest will so

lend itself, it does not necessarily do so.

In the Konigsberg case, supra, Federal Bureau of In-

vestigation agents apprehended the defendants in a ga-

rage containing stolen goods, arrested them and took

them to the bureau’s office. At that office, prior to an

5We do not agree with the suggestion of some writers that,

for purposes of Escobedo, the accusatory or critical stage bejins

with the arrest alone. See Anderson, Representation of De-

fendants, Panel Discussion (1965), 33 F.R.D. 129, 141; Enker

and Elsen, Counsel for the Suspect: Massiah v. United States

and Escobedo v. Illinois (1964), 49 Minn. L.Rev. 47, 70-73;

Note, The Supreme Court, 1963 Term (1964), 78 Harv.L.Rev.

143, 220.

—10—

arraignment, the agents asked Konigsberg “ ‘why he

was in this garage and just what had taken place...

and . . . if he wished to cleanse himself or explain .. .

what his reasons for being there were, why the other in-

dividuals were there.’” (Jd. at p. 852.) Konigsberg

then made some incriminating statements, Among other

reasons for not applying Escobedo, the court said that

the purpose of the interrogation, even though it took

place after the arrest, was not to elicit a confession.

The court stated, “The uncontradicted purpose of the

discussion was to give Konigsberg a chance to explain

his presence in the garage if he could; to hear Konigs-

berg’s side of the story. . . . If Konigsberg or any of the

other people caught in the garage could account for their

presence this was their opportunity.” (Jd. at p, 853;

see People v. Ghimenti (1965) 232 A.C.A. 111, 119.)

The test which we have described does not propose a

determination of the actual intent or subjective purpose

of the police in undertaking the interrogations but a de-

termination based upon the objective evidence. Whatever

may be the subjective intent of the interrogators, we

must, in order to determine if the police are carrying

out “a process of interrogations that lends itself to

eliciting incriminating statements” (Escobedo v. Illi-

nois, supra, at p. 491), analyze the total situation which

envelopes the questioning by considering such factors

as the length of the interrogation, the place and time of

the interrogation, the nature of the questions, the con-

duct of the police and all other relevant circumstances.

As some writers have suggested, “An objective test is

. . . likely for the new American rule, for it is note-

worthy that the question of ‘purpose to elicit a confes-

sion’ may be more readily determined from the objec-

anni Discs

tive evidence—such as the nature of the questions and

accusations put to defendant and the length of the in-

terrogation—than the question whether the police had

decided to charge the defendant.” (Enker and Elsen,

Counsel for the Suspect: Massiah v. United States and

Escobedo v. Illinois (1964) 49 Minn. L.Rev. 47, 71.)

In the instant case all of the above conditions had

been fulfilled. Defendant was not only under arrest at

the time he confessed but had been in custody for five

days and had been interrogated daily. In his summation,

the prosecutor referred to the interrogation of the de-

fendant on January 31 concerning the robbery of Mrs.

Wells as an “accusatory circumstance.” A police officer

testified that on February 5 he entered the interroga-

tion room and said to the defendant, “Roy, you killed

that old woman. .. .” Such extensive interrogations dur-

ing the period of defendant’s incarceration could serve

no other purpose than to elicit incriminating statements.

Thus, prior to his confession, the defendant was enti-

tled to counsel under the Escobedo case, for the “accu-

satory” stage had been reached.

We do not think the contrary contention of the At-

torney General that defendant’s confession was pro-

cured at the investigatory stage can prevail in the light

of the above facts. The Attorney General argues that

the fact that the Mitchell watch had not been found

among defendant’s possessions but in a bureau drawer

containing the possessions of Lillian Lara, as well as the

fact of the continued custody of four other suspects of

the crime, establishes that the police were still conduct-

ing a “general inquiry” and had not “begun to focus”

on the defendant at the time of the confession. As we

have explained above, the arrest of defendant demon-

—

Poe, en

strates that the police believed that they had reasonable

ground for attributing to him the commission of the

crimes. The continued custody of other suspects does

not automatically negate the advent of the accusatory

stage as to defendant; the above conduct of the police

destroys that contention.

Concluding, therefore, that prior to his confession

defendant was entitled to counsel under Escobedo, we

probe the second major premise of the Attorney Gen-

eral that, despite the absence of a showing of advice to

defendant of his rights to counsel and to remain silent,

we can presume that such warning was given. The

Attorney General bases his contention upon People v.

Farrara (1956), 46 Cal. 2d 265, which, in the absence

of evidence to the contrary, expressed a presumption

that the officers in that case lawfully performed their

duties. °

Farrara, we believe, can readily be distinguished

from the instant case. There, appellants contended that

the police obtained certain of the adduced evidence dur-

ing an illegal search and seizure. Since the trial oc-

curred prior to our decision in People v. Cahan (1955),

44 Cal.2d 434, declaring such evidence inadmissible,

the record was barren of any showing as to the

legality of the search. This court said, “It is settled

. . . that error will not be presumed on appeal, .. .

and in the absence of evidence to the contrary it must

also be presumed that the officers regularly and law-

fully performed their duties. (Code Civ. Proc., § 1963

subds. (1), (15), (33). . . .” (46 Cal.2d at p. 268.)

Whereas, long before Cahan, searches and seizures

illegal under federal law had been illegal in California

(Cal.Const., art. I, § 19), no such antecedent illegality

————

ig ae) ee

had been present in the Escobedo situation. Indeed,

Cahan merely provided a remedy in the form of

exclusion for evidence illegally seized. Until Escobedo

and Dorado, however, the law of this state did not give

an accused a right to counsel during prearraignment

interrogations and therefore did not require that an

accused be advised of his rights to counsel and to re-

main silent if he had not otherwise waived those rights.®

We cannot presume that the police acted in accordance

with an unannounced constitutional principle. We

therefore cannot presume in the face of a silent record

that the police informed defendant of his right to re-

main silent and of his right to counsel. (See Carnley v.

Cochran (1962) 369 U.S. 506.)

In Carnley v. Cochran (1962) 369 U.S. 506, the

United States Supreme Court said, “The record must

show, or there must be an allegation and evidence

which show, that an accused was offered counsel but

intelligently and understandingly rejected the offer.

Anything less is not waiver.” (Jd. at p. 516.) It fol-

lows that in order to establish a waiver of the right

to the assistance of counsel the record must indicate

that the defendant was advised of his right to counsel

and to remain silent or that he knew of these rights

and intelligently and knowingly waived them.

To presume in the instant case that absent the

warnings defendant knew of his right to counsel at

the prearraignment stage prior to the time that the

United States Supreme Court established this right in

®Section 825 of the Penal Code, guaranteeing a person ar-

rested the right to see an attorney, does not signify that counsel

must be allowed to be present during interrogations. (People v.

Garner (1961), 57 Cal.2d, 165 (Traynor, J., concurring).)

a” ae

Escobedo would be to ascribe to him an utterly fictitious

clairvoyance.

We have said that the use of a confession obtained

in violation of the defendant’s constitutional right to

counsel compels a reversal. (People v. Dorado (1965)

62 A.C. 350, 368-369.)

The judgment is reversed.

Tobriner, J.

We concur:

Traynor, C. J.

Peters, J.

Peek, J.

ciemiiateimeeettiter ee

| send Gane

People v. Stewart, Crim. 7662.

Concurring Opinion of Burke, J.

to

Opinion of Tobriner, J.

The majority bases its reversal upon the admission

into evidence of a voluntary confession in violation of

the defendant’s constitutional right to counsel, based

upon this court’s decision in People v. Dorado, 62 A.C.

350. As noted in my dissent in Dorado, concurred in by

Mr. Justice Schauer, assuming that there was error in

the admission of such voluntary confession the mandate

of section 4% of article VI of the California Con-

stitution requires this court to review the entire record

to determine the probability that a result more favorable

to the defendant would have been reached had the error

not been committed (People v. Watson (1956) 46 Cal.

2d 818, 836) and that therefore there was a miscarriage

of justice. The majority opinion in the case at hand does

not indicate that there was a review of “the entire

cause, including the evidence” and that the majority is

of “the opinion that the error complained of has

resulted in a miscarriage of justice.” (Const., art. VI,

§4y4.)

Under the mandate of article VI, section 4%, and

of the supplemental rule of this court as to the test to

be applied in determining whether such an error in the

admission of evidence compels reversal (People v. Wat-

son, supra (1956) 46 Cal.2d 818, 836), I have reviewed

__aeaene

sith

the entire cause, including the evidence, and have con-

cluded that it is reasonably probable that a result more

favorable to the defendant would have been reached if

the subject evidence had not been erroneously admitted

against him. Under these circumstances the error com-

pels reversal and I, therefore, concur in the reversal of

the judgment of conviction.

Burke, J.

|, ae

PEOPLE v. STEWART, Crim. 7662.

Dissenting Opinion of Schauer, J.

to

Opinion of Tobriner, J.

I concur generally in the law as stated by Mr. Jus-

tice Burke in his concurring opinion, but after review

of the entire cause, including the evidence, am not af-

firmatively persuaded that a result more favorable to

the defendant would have been reached in the absence

of the declared error.

The encompassing net of interwoven circumstances

established by the prosecution is to me inherently more

convincing than the direct uncorroborated statement of

any single witness could ordinarily be. The confession

here is significant principally because it is consistent

with the only conclusion reasonably supported by the

proof independently made. Assuming that such addi-

tional—in effect, cumulative—proof was erroneously

received does not persuade me to the conclusion that in

the absence of the error a result more favorable to the

defendant would have been probable.

I would affirm the judgment in its entirety.

*Schauer, J.

I Concur:

McComb, J.

*Retired Associate Justice of the Supreme Court sitting under

assignment by the Chairman of the Judicial Council.

aise

APPENDIX “B”.

Modification of Opinion.

In the Supreme Court of the State of California in

Bank.

The People, Plaintiff and Respondent, v. Roy Allen

Stewart, Defendant and Appellant. Crim. 7662.

Filed April 21, 1965.

By the Court:

Strike the paragraph at the top of the ditto copy page

17 beginning “We have said” and insert in lieu thereof

the following: “Since we have said that the use of a

confession obtained in violation of the defendant’s con-

stitutional right to counsel compels a reversal, we must

reverse the judgment on the counts involving the rob-

bery and murder of Miss Mitchell. (People v. Dorado

(1965) 62 A.C. 350, 368-369.)

“Because defendant, however, confessed only to the

robbery and murder of Miss Mitchell, we must deter-

mine if the erroneous admission of his confession con-

stituted prejudicial error as to those other robberies for

which he was convicted but as to which he did not con-

fess. (See Pecple v. Dorado, supra, 62 A.C. 350, 368.)

A full examination of the record indicates that the error

requires the reversal of the judgment on these counts

since ‘it is reasonably probable that a result more favor-

able to the appealing party would have been reached in

the absence of the error.’ (People v. Watson (1956) 46

Cal.2d 818, 837.)

pac

“Thus the evidence adduced at the trial indicated that

the same person participated in all of the charged rob-

beries. All of the robberies took place in the same neigh-

borhood; they were all committed in the same fashion;

the police found at defendant’s residence items stolen

during each of the robberies. Because of the inter-rela-

tionship among these crimes, defendant’s confession to

the robbery and murder of Miss Mitchell composed

strong evidence of his guilt on each of the robberies to

which he did not confess.”