P. v. Gamache

Filed 4/4/07 P. v. Gamache CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yuba)

----

After a court trial, defendant Sierra Gamache was convicted of the second degree murder of Rose Bennett. (Pen. Code,  187, subd. (a).)^[1] The trial court also found true two enhancements; (1) that defendant had, in the course of the offense, personally used a deadly weapon, specifically a knife ( 12022, subd. (b)(1)), and (2) that defendant had inflicted great bodily injury on the victim who was 79 years or older. ( 1203.09, subd. (a).) The trial court sentenced defendant to state prison for an indeterminate term of 15 years to life, plus a consecutive one-year term for the weapon enhancement.

On appeal defendant claims the trial court erred in admitting into evidence her statements to Lieutenant Gill confessing to the killing. Defendant claims her confession was involuntary as she was mentally disabled and coerced by previous promises of leniency from Sergeant Hatfield who earlier interviewed her without proper Miranda^[2]warnings and after she had invoked her right to counsel. As we conclude there was no error, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On May 12, 2003, 79-year-old Rose Bennett was stabbed to death in her mobile home on Forsythe Road in a rural area of Yuba County. She was found on her bathroom floor by her nine-year-old grandson and his father (her son) when they returned home around 3:45 p.m. that day. She had been stabbed 46 or 47 times.

Investigating officers found and took an impression of a shoe print in the dust on the kitchen floor. The print did not match any of the shoe prints taken from officers or paramedics who had been at the scene.

Yuba County Sheriffs Deputy Daniel Cross was one of the officers called to the Bennett home that evening. Cross told the lead investigator he had seen a woman walking on Forsythe Road toward the Bennett home at approximately 11:00 a.m. that morning, who might have been a witness. As he drove past the woman, she hid her face with her hand. He decided to stop and contact her. When he did so, she identified herself as Sierra Gamache and told Cross she was walking to her relatives place at the Lake Francis Club. She was wearing black shoes, blue jeans and carrying a black jacket.

The next day, Cross located a shoe print on Forsythe Road that could have been left by defendant as she was walking toward the Bennett home the previous day. Forsythe Road was a private road, which had not been maintained since the 1960s. At the time it was muddy and wet. After a discussion with Cross, Sheriff Sergeant Wendell Anderson went out and took photographs of the shoe print located about a half to three quarters of a mile north of the Bennett home.

On May 20, 2003, deputies went to defendants mothers home, where defendant had been living. With the prior consent of defendant, they collected defendants black shoes and jacket from defendants mother. Defendants shoes had a unique sole pattern. The shoe print turned out to match the print found in the Bennett kitchen and the print found on Forsythe Road.

On May 30, 2003, defendant agreed to accompany sheriffs deputies to the sheriffs office for questioning. Eventually, defendant admitted the killing. Only then was she given her Miranda rights. Despite several references by defendant to needing a lawyer, the deputy interviewing her, Sergeant Hatfield, continued to discuss the case with her until defendant unequivocally said she wanted a lawyer.

When the interview was concluded, defendant asked for the interview room door to be left open as she was having trouble breathing; she was claustrophobic. Lieutenant Gill saw her sitting in the doorway of the interview room and asked defendant if she was okay. She replied she was feeling better and asked Gill his name. He gave her his name. Hatfield then came over and told Gill defendant had invoked her right to counsel. Gill told defendant he could not talk to her about anything related to her case.

When Hatfield had completed the necessary booking forms, Gill and another deputy escorted defendant to the intake area of the jail. At the jail, defendant told Gill she might want to talk to him later. Gill told defendant they were going to book her into jail and he could not talk to her at that time. If she wanted to talk, she would have to re-contact him later. Defendant asked for a pencil and paper to get her thoughts together. Gill relayed the request to a deputy at the jail.

Less than an hour later Gill was contacted by the jail because defendant wanted to talk to him. He returned to the sheriffs office where he set up an interview space in the detectives room where defendant would not become claustrophobic. Defendant was brought over from the jail. Gill told defendant she would have to initiate the contact with him if she wished to talk to him. He told her he had been informed she wanted to talk to him and asked her if that was true. Defendant responded: Correct and produced a piece of paper with writing on it. The writing was in the form of an outline that Gill understood to be a summary of defendants thoughts at the time. Defendant told Gill she had written down her feelings about her relationships with the Bennett family (defendant had dated one of Roses grandsons prior to the grandsons death in a car accident) and about possible factors motivating what had happened.

Gill advised defendant of her Miranda rights, which she waived. Defendant talked about her relationship with the Bennetts and its deterioration over the years. When Gill wanted to question defendant about the death of Rose, Gill again advised defendant of her Miranda rights. Defendant again indicated she wanted to talk to him.

Defendant told Gill about her actions on May 12. That morning, she bought a hunting knife for $5.00 from a pawnshop in Marysville as she likes to have a knife for protection when she walks in the hills. She then hitched a ride up into the hills, ultimately deciding to go to the Bennett home to try and talk to Rose. Rose made defendant feel as if she was an inconvenience in being there. Defendant felt she was treated like a total fool while she was at the house. Defendant said she first had the idea of killing Rose when Rose made a mockery out of her. As Rose reached for something in the bathroom, defendant just snapped and struck Rose multiple times with the knife. As she was stabbing Rose, defendant felt like she was defending herself against a lot of people. Rose did not defend herself because she was frail. Afterward, defendant washed off in a nearby creek and threw away the knife. She offered to help Gill find the knife. She said she was sorry for what she had done.

The following day, defendant accompanied deputies to a creek approximately a mile from the Bennett residence, where she showed them where she had disposed of the knife. Gill retrieved the weapon.

A complaint charging defendant with murder was filed on June 3, 2003. On August 6, 2003, defense counsel expressed the opinion that defendant was mentally incompetent. On August 25, 2003, the trial court found defendant not mentally competent to stand trial and a couple of weeks later, defendant was committed to Patton State Hospital. On May 28, 2004, the trial court found defendant had been returned to competency and reinstated the criminal proceedings. On July 12, 2004, defendant entered pleas of not guilty and not guilty by reason of insanity. Psychiatrists were appointed to examine defendant. ( 1027.)

In October 2004, the defense filed a motion in limine to suppress defendants statements to Hatfield and Gill. The People filed written opposition.

A hearing on defendants motion was held on October 22, 2004. After hearing argument and reviewing the videotape of the Hatfield interview, the trial court ruled defendants statements made to Hatfield in the first interview on May 30, 2003, were inadmissible based on Hatfields violation of defendants constitutional rights. Turning to the admissibility of defendants subsequent statements to Gill, the trial court heard testimony from both Gill and Sergeant Melford Duncan. The trial court denied defendants request to take judicial notice of the section 1368 reports on defendants mental competency based on foundational issues and hearsay. The parties stipulated the court could consider the videotape of defendants interview with Hatfield to consider defendants demeanor and manner of responding as relevant to her ability to perceive, understand, and waive her rights on that day. The parties also stipulated that on May 12 and May 13, 2003, Hatfield spoke with defendants mother about defendants mental health. The court took the matter under submission.

On October 25, 2004, the trial court issued a seven-page written ruling denying defendants motion to suppress her statements to Gill. Defendant then waived her right to a jury trial and the case was set for a court trial.

On the date set for trial, defendant withdrew her insanity plea based on the reports of the psychiatrists. A court trial was held. The court found defendant guilty as charged and the enhancement allegations true. Defendant was sentenced to 15 years to life for the second degree murder conviction, plus a consecutive one year term for the weapon enhancement.

DISCUSSION

Defendant claims on appeal the trial court erred in denying her motion in limine to suppress her statements to Gill. She claims her waiver of her rights in the Gill interview was involuntary as she was mentally disabled and coerced by previous promises of leniency from Hatfield in her earlier interview, in which her Miranda rights and invocation of her right to counsel were intentionally ignored.

We begin by rejecting the Peoples claim that defendant has forfeited these contentions because she failed to raise them with the trial court. Admittedly, the heading in defendants written motion in limine relating to the Gill interview stated only that defendants statements were involuntary because there was insufficient time between interrogations to sufficiently purge the taint of [] Hatfields interrogation. (Capitalization omitted.) However, in the text of the argument defendant discussed the effect on her of Hatfields efforts to convince her to tell her side of the story, although she did not explicitly label Hatfields efforts as coercive and asserted she was not mentally competent to waive her Miranda rights. The People apparently understood defendants motion to include claims of coercion and mental incapacity because the Peoples written response specifically addressed both issues. Not surprisingly, the trial courts written ruling also addressed both issues, rejecting defendants claims. While defendants motion is far from a model of clarity, we conclude under the circumstances the issues have been preserved for appeal. We reach the merits of defendants claims.

It is useful to summarize defendants interview by Hatfield.

The Hatfield Interview

Hatfield started his interview of defendant by telling her she was not under arrest, that she could end the interview anytime she wanted, but he wanted to talk to her so she could be eliminated as a possible suspect. Hatfield did not give defendant any Miranda warnings. Hatfield and defendant discussed where defendant had been walking and what she was doing near the Bennett home on May 12, 2003. They talked about what she had been wearing. They talked about defendants prior dating relationship with one of Roses grandsons, how well defendant knew Rose, and when she was last at the Bennett house. Defendant denied being at the house the day Rose died.

Hatfield then returned to the issue of the shoes defendant had been wearing that day, informing her that officers had obtained her black shoes from her mother, that the shoes had a distinctive sole pattern, that they were at the crime lab in Chico and they matched perfectly the prints found in the Bennetts yard and inside the home. Hatfield told defendant the officers knew something happened up there and some people are up there saying that someone came in and just butchered her for no reason at all. Hatfield recognized, however, that there are always two sides to a story. He explained it could make the difference between first, second degree murder to maybe manslaughter, depending on what the circumstances are. Hatfield then suggested Rose could be difficult and she might have done or said something that ticked you off. He again assured defendant they had the evidence in the shoe print that she was there. When asked, he agreed with defendant that she was the prime suspect at this point. He said he did not believe defendant went up there with the intention to kill Rose but said, yes when defendant asked him if he believed she did it.

Defendant asked if she was going to get a chance to see a lawyer[.] Hatfield replied that if [shed] like he could give her her rights and she could decide what to do, but he was just trying to get her side of the story. Defendant said: I dont -- I dont -- you know, I have to talk to a lawyer about this. I really dont understand, Officer. Hatfield asked defendant if she was requesting a lawyer and defendant said: I guess so. Hatfield said okay, that the interview would be terminated, but then suggested defendant should think about what he talked about. Again, he told defendant he did not believe it was first degree murder, it might be manslaughter, that Rose did something to tick defendant off. Since Rose was dead, defendant was the only one who would know. Hatfield then left the interview room.

When Hatfield returned, defendant asked how the interview would help her case. Hatfield noted defendant had said she wanted a lawyer and if she wanted to talk further with him she would have to self-initiate it now. He told defendant she had a right to have a lawyer present, but he went on to say he and his lieutenant both felt defendant needed help; it was up to her. At that point, defendant confirmed with Hatfield that the deputies had her clothes and everything. When he said they did, defendant said, All right. Ill just go ahead and admit it right now. Hatfield asked if she was admitting it free and willingly and went on to advise defendant of her Miranda rights. Hatfield asked defendant if she wanted to speak with him without a lawyer. Defendant asked his advice. Hatfield said he could not give her fair and unbiased advice as a cop, that they were looking at anything from a possible first degree murder, which carries a penalty of 25 to life or even death, to manslaughter or second degree murder, which does not carry any death penalty but a possible 25 to life, 15 to life or even less. Hatfield again left defendant to think about it.

When Hatfield returned, he explained that wed like to help you, but we can only help you if -- you know, if basically you gotta help yourself. It was her decision. Again he asked if defendant wanted to give him her side of the story. Defendant said she did not have a story the only thing I got is what a typical situation is and what my lawyers willing to give me. She repeated she did not have a story. Hatfield said he didnt understand, defendant said she did it and then they started talking about this lawyer thing. He wanted defendant to know he was not going to force defendant to do anything. She could have a lawyer brought to the interview or if she wanted, she could give Hatfield her side of the story.

Defendant asked Hatfield about the possible sentences for the offense and Hatfield again described the degrees of murder and manslaughter. Hatfield suggested the crime could be premeditated, but some of us thought it could have been provoked by Rose. He told defendant again they had evidence putting her in the house and added that the shoes were now being examined for blood. The officers were looking for other physical evidence like fibers and hair. He thought they might end up with even more forensic evidence. He asked for defendants decision and when she said she wanted a lawyer, the interview was concluded. Hatfield left to talk to Gill about a decision regarding defendants arrest.

Defendant was subsequently arrested and booked into jail. Within an hour she requested to talk to Gill and her interview with Gill started about an hour and a half after the conclusion of the Hatfield interview. Defendant was advised pursuant to Miranda twice by Gill and waived her rights.

Standard of Review

In reviewing constitutional claims regarding the admissibility of a defendants confession to law enforcement, it is well established that we accept the trial courts resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained. [Citations.] (People v. Storm (2002) 28 Cal.4th 1007, 1022-1023, quoting People v. Cunningham (2001) 25 Cal.4th 926, 992.)

Analysis

Concerned that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures that might lead an accused person to make statements in derogation of his or her Fifth Amendment privilege against self-incrimination, the United States Supreme Court, in Miranda, required law enforcement agencies to advise the accused of certain rights and to honor the accuseds exercise of those rights. [Citation.] (People v. Gonzalez (2005) 34 Cal.4th 1111, 1122.) Police advisement of a suspects Miranda rights is the first line of defense against the suspects involuntary waiver of the privilege against self-incrimination. [Citation.] In Edwards v. Arizona (1981) 451 U.S. 477 [68 L. Ed. 2d 378, 101 S. Ct. 1880], the court added a second layer of prophylaxis for the Miranda right to counsel [citation], when it held that, once a suspect has asserted his or her right to counsel during custodial interrogation, the interrogation must cease and the suspect is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. (Edwards, supra, 451 U.S. at pp. 484-485.) (People v. Gonzalez, supra, at pp. 1122-1123.)

It is the violation of this latter requirement of Edwards that formed the basis for the trial courts conclusion regarding defendants statements to Hatfield in this case. The trial court determined based upon the totality of the circumstances, statements to Sergeant Hatfield may not be introduced at the time of trial. Sergeant Hatfield ignored [d]efendants request for an attorney on two occasions and continued to pursue his objective to obtain a confession from the [d]efendant. And because of the violations of the [d]efendants rights, the statements are considered by this Court to be inadmissible.

The trial courts conclusion regarding defendants statements to Hatfield, however, does not necessarily require exclusion of defendants statements to Gill.

In Oregon v. Elstad (1985) 470 U.S. 298 [84 L.Ed.2d 222] (Elstad), the United States Supreme Court concluded a custodial suspects subsequent voluntary incriminating statement, made after a waiver of Miranda rights, was admissible even though it was preceded by an earlier incriminating statement obtained by custodial questioning without a Miranda warning. (Id. at p. 300, 317-318 [84 L.Ed.2d at pp. 226, 237-238].) The Supreme Court stated: Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made. (Id. at p. 309 [84 L.Ed.2d at p. 232].) [A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. (Id. at p. 314 [84 L.Ed.2d at p. 235].)

Our California Supreme Court has found Elstad applicable to a situation where the police have violated Edwards by ignoring a custodial suspects request for counsel. (People v. Storm, supra, 28 Cal.4th 1007, 1013, 1028-1031.) Although a Miranda and/or Edwards violation is a circumstance to be considered in assessing the voluntariness of the subsequent statement, the subsequent statement may be found voluntary despite such violations. (Id.at p. 1035; People v. Bradford (1997) 14 Cal.4th 1005, 1039-1040, cert. den. sub nom. Bradford v. California(1997)522 U.S. 953 [139 L.Ed.2d 293].

Defendant contends, however, her initial statements were not only obtained in violation of Miranda and Edwards, but were the product of deliberately coercive tactics capitalizing on defendants known mental disability. Defendant identifies the coercive tactics as Hatfields implicit offers of leniency for cooperation or first degree murder with exposure to the death penalty for silence.

It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied. [Citations.] However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary. . . . Thus, [w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, the subsequent statement will not be considered involuntarily made. [Citation.] On the other hand, if . . . the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible . . . . (People v. Holloway (2004) 33 Cal.4th 96, 115 (Holloway), quoting People v. Jimenez (1978) 21 Cal.3d 595, 611-612, Jimenez overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 510, fn. 17.)

Here Hatfield did not make any express or implied promise of leniency. He suggested the crime appeared to some people to be a first degree murder, but that it depended on the circumstances. He suggested Rose was known to be a difficult person and something might have ticked [defendant] off. He noted defendant was the only one who knew what really happened since Rose was dead. Hatfield told defendant a number of times he was just trying to get her side of the story. As in Holloway, supra, 33 Cal.4th at p. 116, such suggestions fall far short of being promises of lenient treatment in exchange for cooperation. Hatfield did not represent that he, the prosecutor or the court would grant defendant any particular benefit if she told them how the killing happened. (Ibid.) An accurate assessment of a suspects prospects in the absence of a statement does not constitute a threat or a promise. (People v. Thompson (1990) 50 Cal.3d 134, 170, disapproved on other grounds in Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 829.)

Nor was Hatfields mention of the death penalty as a possible sentence for a first degree murder an impermissible threat. Law enforcements mere mention of the possibility of a death sentence does not invalidate a confession. (People v. Ray (1996) 13 Cal.4th 313, 340.) Rather, a confession is invalidated only where the confession results directly from the threat such punishment will be imposed if the suspect is uncooperative, coupled with a promise [of] leniency in exchange for the suspects cooperation. (Holloway, supra, 33 Cal.4th at p. 116.) Here Hatfields description of the degrees of murder and manslaughter, correlated with possible penalties, did no more than tell defendant the benefit that might flow [] naturally from a truthful and honest course of conduct. [Citation.] (Ibid.)

Hatfields interview of defendant is factually distinguishable from People v. Johnson (1969) 70 Cal.2d 469 and People v. Brommel (1961) 56 Cal.2d 629 [overruled on other grounds in People v. Cahill, supra, 5 Cal.4th 478, 510, fn. 17], on which defendant relies. The officers in Johnson, after telling defendant that his statements were not admissible evidence, but only investigative aids, urged defendant to tell the truth, telling defendant his companions had accused him of shooting the victim, that he could get the gas chamber, that no one would believe him because he denied everything, and that his denials would show malice and hatred making the death penalty more likely. (People v. Johnson, supra, at pp. 474, 478.) The appellate court found this went beyond merely pointing out to a suspect that which flows naturally from a truthful and honest course of conduct. (Id. at p. 479.) In Brommel, the defendant persistently denied killing his 23-month-old daughter. (People v. Brommel, supra, at pp. 631, 633.) The police told defendant that unless he told the officers what they wanted and were insisting that he tell them, they would write liar on his statement. However, if he cooperated and confessed, the defendant might expect a break from the court. (Id. at pp. 633-634.) The court found defendants subsequent confessions and admissions were the result of both an improper threat and a promise of leniency. (Id. at p. 634.) In contrast, here Hatfield did not tell defendant she was unbelievable or a liar. Hatfield did not tell defendant she would get the death penalty or otherwise threaten defendant. Hatfield promised no break for defendant if she cooperated.

While the line can be a fine one (People v. Thompson, supra, 50 Cal.3d at p. 169), we do not believe Hatfield crossed the line between urging [defendant] to tell the truth by factually outlining the benefits that may flow from confessing, which is permissible, and impliedly promising lenient treatment in exchange for a confession, which is not. (Holloway, supra, 33 Cal.4th at p. 117.)

Defendant contends, however, Hatfields questioning must be evaluated in light of his knowingly capitalizing on her mental disability. Defendants contention is not supported by the evidence presented to the trial court in connection with defendants motion in limine.

At the hearing on defendants motion, the trial court heard testimony from both Gill and Duncan regarding defendants demeanor and responses on the day she was questioned by Hatfield and Gill. Duncan testified he provided transport for defendant when she agreed to come to the sheriffs office for questioning. He engaged in idle chit chat with defendant on the way and nothing in that interchange indicated to him defendant was out of touch with her circumstances in terms of where she was or what she was doing. Their conversation seemed age appropriate. (RT 54) Defendant seemed to track whatever was being said. Gill testified there was nothing unusual in defendants demeanor after her interview with Hatfield when she asked for pencil and paper at the jail intake. She did not seem to have any difficulty in articulating what her thoughts were. The paper she later gave Gill was in outline form, was legible and made sense. Defendant and Gill spoke in a conversational fashion. Gill had no difficulty understanding defendant and she did not appear to have any problem understanding what he was saying to her. Although defendant told Gill she took medication for mental health issues, she did not say she was on medication at the time of the interview. The Gill interview was conducted in an open area of the office to avoid defendants earlier claustrophobia.

The parties stipulated the court could consider the videotape of defendants interview with Hatfield. In its ruling on defendants motion, the trial court noted Hatfield was not caustic or demeaning. He had a pleasant demeanor throughout the interview. He did not call defendant names. He did not threaten her. . . . [H]e did not promise her leniency if she talked to him. The trial court noted [n]o bizarre behavior or comments by defendant in the Hatfield interview tape. Defendant does not challenge these observations on appeal.^[3]

At the hearing, defendant also requested judicial notice of the section 1368 reports on defendants mental competency. Defendant does not challenge on appeal the trial courts denial of the request based on foundational issues and hearsay. The only other evidence presented to the trial court regarding defendants mental capacity on the day of her interviews was a stipulation that on May 12 and May 13, 2003, Hatfield spoke with defendants mother about defendants mental health. No evidence was presented as to the specifics of such conversation.

Defendant has not shown Hatfield knowingly capitalized on defendants mental disability in his questioning. Defendant has not shown she was suffering from any mental disability on the day of her interviews with Hatfield and Gill that interfered with her ability to perceive and understand, to knowingly and intelligently waive her Miranda rights in the Gill interview.

Considering the totality of the circumstances shown, we conclude defendants waiver of her rights in the Gill interview was voluntary and not the product of any prior violation of her constitutional rights or coercive tactics by Hatfield capitalizing on defendants known mental disability. The trial court did not err in denying defendants motion to suppress her statements to Gill.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

NICHOLSON , Acting P.J.

MORRISON , J.

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^[1]Hereafter, undesignated statutory references are to the Penal Code.

^[2]Miranda v. Arizona(1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).

^[3]Defendant requested transmission of the videotape of the Hatfield interview to this court. We granted defendant relief from the late designation for transmittal of exhibits to allow defendant to serve and file a notice designating exhibits to be transmitted to this court. (Cal. Rules of Court, former rule 18(c).) Although such a notice prepared by defendant was subsequently received by this court, it does not appear the notice was ever filed with the trial court and the videotape has never been transmitted to us. We conclude it is unnecessary to augment the record on our own motion to include the videotape as defendant does not contest any of the trial courts observations from the tape.