P. v. Cole

Filed 3/15/06 P. v. Cole CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.

Dennis Cole appeals from a judgment convicting him of conspiracy to commit robbery and robbery. He contends that statements he made during a police interview were induced by promises of leniency, and thus the trial court erred in admitting them into evidence. We reject his argument and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Robbery

At about 4:15 a.m. on June 30, 2003, an adult bookstore in Clairemont was robbed by two men. The men, dressed entirely in black, were wearing ski masks and gloves and carrying what appeared to be real guns.^[1] The robbers pointed the guns at the store clerk and customers and screamed for everyone to get on the floor. The robbers directed the store clerk to get the money from the cash register and put the money inside a backpack. The robbers then directed the clerk to the back of the store to get more money. The store clerk was surprised that the robbers knew that money was kept in the back of the store, and wondered whether one of the robbers was an ex-employee of the store.

In August 2003, the police received information from Bianca Perez identifying the two robbers as Samuel Mercado and Roy Hart. Perez, who was Hart's girlfriend, reported to the police that Hart told her about the robbery. According to the police, Perez also stated that Hart identified Cole as the getaway driver.

By the time of Cole's trial, Mercado and Hart had already been convicted of the robbery. Both accomplices testified at Cole's trial. Mercado testified that Cole assisted with the planning of the robbery, and drove Hart and Mercado to and from the scene in Cole's Ford Mustang. Mercado stated that Cole, who had formerly worked at an adult

bookstore, told them that the clerks do not keep guns in the store and money was kept in the back room. Cole provided Mercado and Hart with ski masks, gloves, and one of the two "air soft" guns used in the robbery. After the robbery, the three men went to Cole's house and divided the robbery proceeds.

At trial, Hart indicated he did not want to testify against other people because it would put his life in danger. Hart denied that Cole was involved in the planning or commission of the robbery. Hart acknowledged that he had a general discussion with Cole about robbing an adult bookstore, and that he asked Cole to be the getaway driver. Hart stated that Cole refused to do so, and accordingly Hart drove himself. Hart stated he broke into one of Cole's vehicles and drove it to the robbery. After the robbery, he returned the vehicle to Cole's residence and threw away the items used in the robbery, except for a ski mask that was stuck in a speaker box in the vehicle.

Perez testified that before the robbery Hart told her that Cole advised them how to commit the robbery; that all three men went to Home Depot to buy gloves for the robbery; and that Cole would be the getaway driver. Later, Hart told her that Cole was scared and they did not commit the crime. However, in a third conversation Hart told her they did commit the robbery, but Perez could not remember if Hart said that Cole actually drove them.

In November 2003, during a search of Cole's Ford Mustang vehicle, the police found a ski mask inside a hole in a speaker box and black gloves on the floor. DNA on one of the gloves matched Mercado's DNA and DNA on the ski mask matched Hart's DNA. Inside Cole's residence, the police found two replica guns that looked like real guns. One of the replica guns was identified by the bookstore clerk as similar to the type of gun used during the robbery.

The Police Interview with Cole

Prior to their interview with Cole, the police had received the information from Perez about Cole's involvement in the robbery. According to the police, Perez told Officer George Alldredge that Hart disclosed to her that Cole advised him how to commit the robbery, drove the vehicle, and received $200 of the robbery proceeds.^[2]

On August 20, 2003, Officers Alldredge and John Keene interviewed Hart, who was in jail for a matter unrelated to the robbery. Hart denied all involvement in the robbery, stated Mercado was "trying to lay [the robbery] on him," and provided the police with no information.

Immediately after interviewing Hart, while it was still daylight, the two officers went to Cole's residence. The police were uncertain about Cole's level of participation in the robbery and were trying to acquire more information. Cole consented to be interviewed, and the officers questioned him at his home for about 45 minutes. A large portion of the interview with Cole was tape recorded. To assess whether the officers' questioning strategies elicited involuntary statements from Cole, we summarize the interview in some detail.

Early in the interview, Officer Alldredge told Cole that Hart had disclosed to the police that Cole provided the guns, drove the getaway car, and received $200 from the robbery proceeds. Cole stated he did not know why Hart told the police this story, and suggested he would not do "something like that for two hundred dollars." Cole denied any conversations with Hart and Mercado about the robbery; stated he did not know what guns were used in the robbery; denied that he had any guns in his house except for a fake-looking "air soft" pistol; and stated Hart and Mercado likewise only had an "air soft" pistol.

Officer Alldredge then told Cole that Cole's car might match the description of the vehicle that was used in the robbery and that he had to clarify this information with Hart, but that he would rather Cole "be a witness than a suspect." Cole then offered to testify against Hart. Officer Keene responded to this offer by stating: "In a case like this where we know certain people are involved, we have a little leeway, and what it comes down to is at some point you'll be in court, but you have the option of which way you go to court. Now you can go to court as a witness or you can go to court as a defendant. That's your choice. . . . [¶] . . . Up to a point." (Italics added.) Cole stated he understood this, and then claimed that he did not go with Hart and Mercado, he did not give them anything, and he did not understand why Hart was trying to "put this" on him. Officer Alldredge responded that Hart, who was only 18 or 19 years old, was suggesting that Cole, who was 37, was an older adult who had "been around the block" and was more responsible for the crime.

Officer Alldredge stated that if there was anything that would "lead [the officer] down the path away from [Cole] and towards [Hart]," that would "certainly go a long way." Cole responded that the only thing he ever said to Hart and Mercado was that he used to work at an adult bookstore in Spring Valley that was frequently robbed; however, he told Hart and Mercado he was not going to have anything to do with a robbery. Cole denied that he told Hart and Mercado about the details of the robberies at the Spring Valley bookstore, and stated he did not know where Hart and Mercado got the idea to use gloves and masks.

Officer Alldredge then asked if Cole told them that there was more money at a bookstore than at a hobby store. Before Cole responded to this question, Officer Alldredge explained that these were the kinds of matters Cole would have to testify to in court as a witness; the police were building the case and would disclose how the idea for the robbery started; the district attorney would want to know why the police were not charging Cole with conspiracy; and the police had to tell the district attorney that Cole "is a cooperating person with the police department, telling [the police] every little detail . . . ." Officer Alldredge then reiterated to Cole: "[L]ike . . . [Officer Keene] said, the side of the table is your choice. You can either be on the defendant's side or the witness side." (Italics added.) Cole acknowledged that he may have mentioned to Hart and Mercado that during the robberies at the Spring Valley bookstore, a gun was stuck in the back of an employee; however, he did not exactly remember saying this, explaining that he and the others "were always bullshitting out there" and he could not remember "half the things" that he said.

Officer Alldredge advised Cole that these matters "were going to be real important down the line," and Cole needed to start remembering some of the things he said. Officer Alldredge explained that Hart was "putting the whole shitting caboodle right on top of" Cole, but Officer Alldredge had not told Hart that Hart, not Cole, matched the description of the suspect who was in the store. Officer Alldredge stated he did not believe that Cole was in the store, but that Hart said Cole was the driver. Officer Alldredge then asked Cole if he drove Hart and Mercado to the store, and Cole responded: "I told them I wouldn't do it."

Cole acknowledged that Hart and Mercado wanted him to assist with the robbery, and that they told him they were going to commit the crime at an adult bookstore in Kearny Mesa or Clairemont, although they did not name the store. Officer Alldredge encouraged Cole to think about whether they told him what store they were going to rob, because he had "one story from [Hart]."

Cole told the police that he wanted a meeting with the district attorney, stating: "[A]ny information I give I want immunity from it. [¶] . . . [¶] If you think that's possible." (Italics added.) Officer Alldredge then stated: "[L]et me ask you point blank, were you involved in the robbery?" Cole answered he was not, and denied that he was at the robbery or drove for the robbery. Officer Alldredge told Cole that if the answers to those questions were really no, and that further police investigation would not reveal otherwise, then Cole did not need immunity and could tell the police what he knew because the only thing he was guilty of was conspiracy from talking with the others about what to do. Officer Alldredge stated: "I am personally not going to charge you with conspiracy because conspiracy is shit compared to the robbery." (Italics added.) However, Officer Alldredge stated that if there was even a remote possibility the police would find out Cole was at the robbery or was the driver (for example from video surveillance tapes from businesses near the bookstore) then the police would set up a meeting with the district attorney.

Cole reiterated that none of the answers to the questions were yes. Officer Alldredge again asked him what he knew about the adult bookstore robbery. Cole responded: "I wasn't involved but I know a lot more than what I'm telling you and if you set me up with the DA and give me immunity and I'll, I can testify against both of them." Officer Alldredge responded: "OK. Give me something I can go take to the DA then. Give me some specifics. . . . [w]e'll set you up with the DA." (Italics added.) Further, Officer Keene interjected: "You're absolutely positive that you were not involved in the robbery, you were not there. . . . We can turn on the tape recorder. On the tape recorder we tell you, if you absolutely positively were not there, were not involved, we're not going to charge you. And then you've got it on tape. If you weren't there and you weren't involved we're not going to charge you, OK. Just general chit chat between you and them and they say, hey we're going to do it, it technically might be conspiracy but it's not something that the DA is going to charge if they can't prove." (Italics added.) Officer Alldredge confirmed this viewpoint, stating: "That's not something I'm going forward on." Officer Keene continued: "So you got, you'll have it on tape that we're not going to charge you if, if that is your only involvement, OK. Then will you tell us what you know?" (Italics added.)

Cole again asked for immunity from the district attorney, stating: "[I]f we go to the DA and they give me immunity, I'll tell everything that I know." Officer Alldredge responded that before they could go to the district attorney Cole needed to give at least some specifics so that Officer Alldredge could tell the district attorney that Cole had information and wanted to talk. As an example of the type of specifics he needed, Officer Alldredge asked if Cole knew how much money was taken from the adult bookstore or what type of guns were used.

Cole then stated that Hart "suddenly had about $800," but that Hart did not tell Cole where he got the money. Officer Alldredge responded that this was not enough information to go to the district attorney. However, Officer Alldredge stated the information did not require immunity because it merely established Cole as a witness. Officer Alldredge again asked if Cole knew who the driver was. When Cole answered negatively, Officer Alldredge queried whether Hart was lying when he stated Cole was the driver. Cole responded that Hart was lying and he did not understand why. Officer Alldredge then repeated Hart's version of the events, i.e., that Cole decided he did not want to do the robbery but offered to drive, and that Cole was paid $200 to drive. Cole reiterated that he had nothing to do with it. Officer Alldredge stated he believed Cole not Hart, but that because Hart had implicated Cole, they had to talk to Cole.

Officer Alldredge asked Cole to disclose when Hart spoke to him about the crime and exactly what Hart told him. Cole stated he did not remember when he spoke with Hart about it, but that it was he (Cole) who brought up the subject. Cole asked Hart: "[D]id you guys ever do that [robbery]?" Hart answered yes, telling Cole that he and Mercado robbed the store in Clairemont. Hart told Cole he drove himself to the crime in a white Ford Escort, and that they were dressed in black. Hart did not tell Cole what type of gun he used, but Cole knew that Hart had access to Hart's stepfather's guns.

Officer Alldredge inquired whether Hart had asked Cole if the bookstore clerk carried a gun. Cole responded that he may have mentioned that the adult bookstore owner (who owns four adult bookstores, including the stores in Spring Valley and Clairemont) does not believe in having guns in the stores, and he may have mentioned the address of the store in Clairemont.

Officer Alldredge told Cole that they were going to interview another individual to verify what Cole was telling them, so they could "completely keep everybody else out of the loop except for [Hart] and [Mercado]." Officer Alldredge summarized what Cole had told the police; i.e., that he was present during a conversation that Hart and Mercado had about robbing a bookstore, and Cole's "two cents" during the conversation were that the Spring Valley bookstore had been robbed before and the bookstore owner did not allow the employees to carry guns. Cole agreed with these statements. Further, Cole stated he may have talked about an incident when robbers came into the Spring Valley store with stockings on their heads but the clerk recognized one of the robbers through the stockings. After a bit more discussion, Cole reiterated to the police that he had no gun to supply to Hart.

In a pretrial motion in limine Cole argued that his statements during the police interview were involuntary. The trial court denied his motion, finding his statements to the police were voluntary, and allowed the jury to hear the evidence. The court also denied Cole's new trial motion based on the admission of the evidence. Cole challenges these rulings on appeal.

DISCUSSION

Legal Authority

If a defendant's statements to the police are motivated by an express or implied promise of leniency made by the police, the statements are involuntary and must be excluded from evidence. (People v. Ray (1996) 13 Cal.4th 313, 339.) "'"[I]f . . . 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.) "'[I]n carrying out their interrogations the police must avoid threats of punishment for the suspect's failure to admit or confess particular facts and must avoid false promises of leniency as a reward for admission or confession . . . .'" (Ibid.)

However, this rule does not require exclusion of statements that are induced by the investigating officers' discussion of an "'advantage' or other consequence that will 'naturally accrue' in the event the accused speaks truthfully about the crime." (People v. Ray, supra, 13 Cal.4th at p. 340.) "'[M]ere 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 [statement] 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.'" (People v. Holloway, supra, 33 Cal.4th at p. 115 (first brackets added).)

Further, lies told by the police to a suspect are a factor to consider in assessing the voluntariness of a statement, but they are not per se sufficient to establish involuntariness. (People v. Farnam (2002) 28 Cal.4th 107, 182; People v. Musselwhite (1998) 17 Cal.4th 1216, 1241.) Police misrepresentations are permissible if they are not "of a type reasonably likely to procure an untrue statement . . . ." (People v. Farnam, supra, at p. 182.) "The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable." (People v. Ray, supra, 13 Cal.4th at p. 340.) Additionally, the officers' ploys must be the "'motivating cause'" of a defendant's decision to speak to require exclusion of the defendant's statements. (People v. Thompson (1980) 27 Cal.3d 303, 328; People v. Williams (1997) 16 Cal.4th 635, 661; see People v. Musselwhite, supra, 17 Cal.4th at p. 1241.)

The prosecution must prove by a preponderance of the evidence that a defendant's statements to the police were voluntary to introduce them at trial. (People v. Williams, supra, 16 Cal.4th at p. 659.) On appeal, we independently review the trial court's determination of the ultimate legal issue of voluntariness, but apply the deferential substantial evidence standard as to factual determinations. (Id. at pp. 659-660.) In deciding voluntariness we consider the totality of the circumstances. (Id. at p. 660.)

Analysis

On appeal, Cole does not contend that his statements were the product of overt coercion by the police. Further, there is no contention that Cole--who was interviewed for about 45 minutes at his home during the day--was in a custodial situation requiring Miranda^[3] advisement prior to questioning. Rather, the focus of Cole's argument is that his statements were involuntary because they were induced by express or implied promises of leniency.

Viewing the interview in its totality, we conclude the police strategies used to elicit information from Cole did not induce involuntary statements. Throughout the interview, the police repeatedly told Cole that Hart had provided information against him. The police fabrication about Hart's implication of Cole was not, in and of itself, a coercive tactic. There is nothing in the claimed fact that Hart had identified Cole as an accomplice that would give Cole a motive to make an untrue inculpatory statement. Moreover, the police representation that Hart had implicated Cole in the crime was not necessarily a full fabrication, because, according to the police, they had received information from Perez indicating that Hart had indeed identified Cole as an accomplice.^[4]

The statements by the police that if Cole provided them with information, he could be a witness instead of a defendant constituted a consequence that could naturally flow from his statements. That is, if Cole could explain to the police why his name was being associated with the robbery and convince them that he was not personally involved, he would be able to avoid being charged with the crime. Thus, the police officers' encouragement that Cole should provide details in order to be a witness rather than a defendant was not the type of inducement likely to lead to an involuntary response. Rather, the inducement was likely to engender a voluntary effort by Cole to provide information that would exculpate himself in the eyes of the police.

Once Cole began providing the police with information about conversations he had with Hart and Mercado before the robbery, the police in effect suggested he could be charged with conspiracy, but that he could avoid this result if he provided details. However, the police also told Cole that if his sole involvement was discussing a possible robbery with Hart and Mercado before the robbery, Cole would not be charged with conspiracy because the evidence would be too weak. This latter information falls within the category of advice or promises that are a natural consequence of the defendant's statements. If the prosecuting authorities were convinced that Cole had merely discussed a possible robbery with Hart and Mercado, but abandoned the plan before an overt act was undertaken towards commission of the crime, it is indeed unlikely they would charge him with conspiracy because an essential element of the crime would be missing. (See People v. Morante (1999) 20 Cal.4th 403, 416, & fn. 4; People v. Russo (2001) 25 Cal.4th 1124, 1131 [overt act requirement gives opportunity to abandon criminal plan].)

To the extent the officers' statements (including the references to having "a little leeway" and saying they would tell the district attorney that he was a cooperative witness) suggested Cole would not be charged with conspiracy if he provided details, the interview, viewed in its entirety, shows that any such promise of leniency from the officers did not motivate Cole to speak. It is clear that Cole knew it was the district attorney, not the police, who was the ultimate decision maker on the issue of whether he would be charged with a crime, as evinced by his repeated statements that he wanted to meet with the district attorney to request immunity before he disclosed all the information he knew about the robbery. Given Cole's knowledge of the district attorney's role in the process and the fact that he did not meet with the district attorney, any suggestions by the officers that he would not be charged with conspiracy if he provided information cannot be characterized as the motivating factor behind Cole's ultimate decision to expand on his statements to the police. (See People v. Williams, supra, 16 Cal.4th at p. 661.)

Further, it was not coercive for the police to tell Cole that he needed to provide them with some details before they would set up a meeting with the district attorney. Cole undoubtedly recognized that the police had, or would uncover, evidence that could implicate him in the crime, and he likely ascertained it was in his best interests to try to cooperate with them so as to deflect any investigation away from him as a suspect. Thus, he offered to testify against Hart and Mercado, and offered to provide the police with information, but he first wanted a promise of immunity from the district attorney. Cole was in effect bargaining with the police, and the police were entitled to bargain in return by asking for some details that would make a meeting with the district attorney worthwhile.

As recognized by our California Supreme Court, "[t]he line 'can be a fine one' [citation] between urging a suspect 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." (People v. Holloway, supra, 33 Cal.4th at p. 117.) We are satisfied Cole's disclosure of his discussions with Hart and Mercado before and after the robbery--while still repeatedly denying any personal involvement in the crime--resulted from his assessment that he might be able to explain his interactions with the robbers and thereby exonerate himself, rather than from a belief that he would receive more lenient treatment. We conclude the preponderance of the evidence shows Cole's statements were voluntary. The trial court did not err in admitting the evidence.

DISPOSITION

The judgment is affirmed.

HALLER, Acting P.J.

WE CONCUR:

McDONALD, J.

AARON, J.

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^[1] According to information later provided by Cole's accomplices, the guns were actually "air soft" guns that shoot plastic pellets.

^[2] At trial, Perez refuted the police officer's version of what she told them, testifying she merely told them that Cole "might have been" the getaway driver and she never said he received $200.

^[3] Miranda v. Arizona (1966) 384 U.S. 436.

^[4] At trial, Officer Alldredge explained that he did tell Cole that the source of the information came from Hart rather than Perez in order to protect Perez's safety. As we noted earlier, at trial Perez disputed that she positively told the police Hart had identified Cole as the getaway driver. (See fn. 2, ante.)