Goldman
Filed 7/11/13 P. v. Goldman CA5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
DON GOLDMAN,
Defendant and
Appellant.
F063883
(Super.
Ct. No. BF130094A)
APPEAL
from a judgment of the Superior Court
of
Patricia L.
Brisbois, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Daniel B.
Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant
Don Goldman was charged with first degree
premeditated murder (Pen. Code,
name="_ftnref1" title="">[1] § 187, subd. (a)) with the personal use
of a firearm causing death (§ 12022.53, subd. (d)) and possession of a
firearm by a felon (former § 12021, subd. (a), now § 29800, subd.
(b)). It was further alleged that defendant
suffered three prior felonies resulting in prison terms within the meaning of
section 667.5 subdivision (b). After a
jury trial, defendant was convicted of the lesser included offense of voluntary
manslaughter (§ 192, subd. (a)) and being a felon in possession of a
firearm. In a
found the prior conviction allegations true.
The trial court subsequently sentenced defendant to a 14-year prison
term.
On appeal,
defendant contends the trial court erred in denying his motion to exclude
evidence of a gun and the testimony of a witness pertaining to the gun as the
evidence was discovered as the fruit of a violation of Miranda v. Arizona (1966)
384 U.S. 436 (Miranda). He further argues the trial court erred in
admitting certain phone records as the records were irrelevant to the
proceedings. We find defendant’s
contentions without merit and affirm the judgment.
FACTS
On November 17, 2009, defendant
shot and killed his uncle, Steven Henderson, while at the home of his ex-wife,
JoAngel Goldman. There was no dispute at
trial that defendant shot Henderson; rather, the issue was whether the killing
was premeditated and deliberate, or whether defendant acted in self-defense or
from a heat of passion.
Charmaine
Goldman, defendant’s mother, was with Eric Peterson on the day of the
shooting. The two visited her sister,
Gwendolyn Davis, at her home. Henderson,
Charmaine’s
title="">[2] brother, was there at the time; when she
arrived, he asked her what was going on.
She responded she did not know, and Henderson said he was going to check
on defendant. Peterson then gave
Henderson a ride to JoAngel’s house.
Charmaine
did not recall talking to JoAngel anytime before the shooting on the day in
question although she had attempted to contact her during the day. She stated she did not have a working cell
phone at the time, and JoAngel did not know Peterson’s number.
Davis
testified that on the day in question she was at home with Charmaine, Peterson,
and Henderson. They were outside talking
when Davis decided she needed to go to the store to get cigarettes. She, her sister and Peterson went to the
store. On the way back from the store,
Charmaine appeared frustrated and rattled.
Charmaine told Davis she had had a conversation with JoAngel. Davis told her not to worry, they would send
Henderson to handle it. When they got
back from the store, Davis told Henderson what Charmaine had relayed to her,
and Henderson said not to worry, he would handle it. Davis asked Henderson to go talk to defendant
and he said he would. Subsequently,
Peterson gave Henderson a ride over to JoAngel’s house. Approximately two to three hours later they
found out Henderson had been shot. Davis
was unsure as to what time the initial call from JoAngel would have taken place
but she guessed it could have been an hour or two prior to the incident.
On the day
in question, JoAngel came home at approximately 4:00 p.m. Defendant was at the home at that time and
had been watching two of their children.
Once JoAngel arrived, she went into her room with three of her young
children. A fourth child was in another
room. Sometime later, JoAngel heard a
pop, left her room to check on the noise, and found Henderson lying on the
ground. Defendant asked her to help him
get the children to safety, and she complied.
JoAngel was unsure what time Henderson had arrived at her home as she
had gone directly to her room when she arrived home. JoAngel denied having any sort of heated
argument with defendant on the day of the shooting.
JoAngel
testified she did not see the shooting take place. She further testified her daughter D. was in
the bedroom doing her homework from the time they got home until the
shooting. The only exception was when D.
left the room briefly to get bottles for the baby. At the time of the shooting, D. was in the
bathroom next to the master bedroom.
D.,
defendant’s daughter, was eight years old at the time of trial. She testified she did not see the shooting as
she was in the bathroom at the time. She
had previously been in her mother’s room doing her homework.
Bakersfield
police officer Kennisha Short spoke with D. in the hours following the shooting
and recorded their conversation. The
recording was played for the jury. On
the recording, D. told the officer that defendant shot her “Uncle Red†in the
head while the two were talking about defendant. They were not arguing. She stated that at the time of the shooting,
she was doing her homework at the living room table. Detective Herman Caldas also spoke with D.
after the shooting. D. again relayed she
had seen defendant shoot Henderson in the head and added she saw defendant put
the gun in his pocket afterwards.
Bakersfield
police officer Andrea Pflugh was the first officer to arrive after the shooting
at approximately 5:00 p.m. She found
Henderson with a gunshot wound lying on the floor inside the house. She searched the area around Henderson as
well as his person and did not locate any firearms.
Defendant
was arrested that same evening.
Detective James Moore of the Bakersfield Police Department interviewed
defendant after the shooting. Defendant
did not give him any information about where he was during the shooting or
where the gun was located. In addition,
Detective Moore did not observe any injuries to defendant suggesting he was in
any sort of physical struggle.
Additionally, nothing in the home appeared disturbed.
Bakersfield
police officer Ryan Kroeker transported defendant to the jail on the night of
the shooting after defendant was interviewed by detectives. On the way, defendant appeared distraught and
began crying. The officer asked him what
was wrong and defendant replied he had let the detectives down. When asked what he meant, defendant stated,
“I should have told them that I dropped my uncle.†On cross-examination, defendant’s counsel
elicited the fact that the officer had also questioned defendant about the
location of the gun used and defendant told him he had given the gun to “Rockâ€
who was later identified as Gregory Allen.
Defendant’s
friend, Gregory Allen, testified that on the date in question, after the
shooting, defendant walked up to him outside a market and asked him to hold a
.357 revolver for him until he could come back for it. The following day, Detective Moore contacted Allen,
asking about the gun. Allen turned the
gun over to the police.
After
defendant was arrested, he called Charmaine from jail. She claimed defendant told her he shot
Henderson after the two got into a tussle, however, there was no mention of any
struggle on the recording of the call which was played for the jury. Charmaine further testified Henderson liked
to carry guns, and shortly before the shooting she had seen him with a .357
revolver.
Dr. Thomas
Beaver, a forensic pathologist, testified the victim died from a single gunshot
wound to the head. The bullet traveled
from the front to the back of the head.
Bullet
fragments recovered from the victim’s brain were compared to bullets that were
test fired from the gun defendant had given Allen. A firearms ballistics expert opined the .357
revolver recovered by Detective Moore fired the bullet fragments recovered from
the victim’s brain.
The parties
stipulated defendant had suffered a prior felony conviction within the meaning
of former section 12021.
Defense Case
Defendant
testified in his own defense. Defendant
had known Henderson his whole life and had spent a lot of time with him except
when Henderson had been in prison.
According to defendant, Henderson had a violent temper and could become
angry very quickly over any perceived wrong or disrespect. Henderson liked to fight and made defendant
fight others when he was a child.
Defendant
related numerous prior instances where Henderson had been violent towards
others. When defendant was a young boy,
Henderson “gutted†a man in front of him.
Although defendant was present at the time, he also heard about the
incident from other family members. He
had also heard of other incidents from Henderson himself and from others. Defendant recalled an incident in September
of 2009 where Henderson pulled a gun, specifically, a .357 magnum, on Donald
Divers. Divers relayed this incident to
defendant. Henderson did not shoot Divers,
and Divers was able to walk away. Divers
also testified regarding this incident, adding that Henderson did not seem to
recognize him when he threatened him with the gun and noting defendant was
present when the incident occurred.
name="_ftnref3" title="">[3] He also identified the gun in this case as
the gun Henderson had used to threaten him.
Defendant
recounted another incident which occurred in October of 2009 where Henderson
pushed Alisha Blackwell and tried to get other women to fight with her. This incident was relayed to defendant by
Henderson as well as by Davis who was present at the time.
In November
of the same year, defendant observed an incident between his mother’s neighbor,
Ray King, and Henderson. Defendant was
aware Henderson had lost his dog and saw King with a dog that looked similar to
Henderson’s. Defendant called Henderson
to come look at the dog and, after looking at it, Henderson claimed the dog was
his. When King would not give the dog to
Henderson he became angry and threatened King, saying he was a gangster and if
he did not get the dog someone would lose a life. Henderson walked to the car, and defendant
followed and calmed him down saying he would get his dog back for him. The following day, King gave the dog to
defendant saying he did not want any problems over the dog. Defendant gave King $50 for the dog. King testified to the incident as well,
explaining Henderson was very aggressive and threatened to kill him.
During the
week of the shooting, defendant learned of an incident where Henderson hit a
man when he confronted Henderson over parking in his parking spot. That same week, defendant learned Henderson
had hit a woman, Elizabeth Heard, knocking her out after she confronted
Henderson for hitting her child. Heard
confirmed this incident and added that Henderson referred to himself as
“machete man†because he had gutted a man in his past.
According
to defendant, Henderson would not tolerate being disrespected and would take
action if he felt he had been disrespected.
In fact, Henderson had previously stabbed his own brother over a
perceived wrong. That incident occurred
about 20 years earlier.
On
November 13, 2009, Henderson threatened another man and friend of his,
Alden Rowel. While at a party, Rowel had
called Henderson’s ex-wife for a ride home.
When Henderson saw his ex-wife, he ran up and tried to hit her. Defendant intervened by grabbing Henderson
and trying to calm him down. Henderson
said he would kill Rowel over the incident.
After Rowel left, defendant had Henderson’s girlfriend take him home.
Approximately
30 minutes later, defendant’s aunt called and told him to come get
Henderson. Henderson had confronted
another man, Tyrone White, with a gun.
White told defendant that Henderson put a gun in his face and White had
to wrestle Henderson to the ground.
Henderson then left.
Regarding
the day of the shooting, defendant stated Henderson called him saying he was
going to come over and “hang out.â€
Defendant initially told him not to come over if he was on drugs because
Henderson had been acting very violently and he did not want to deal with his
behavior. Defendant had been very busy
trying to keep the peace with others due to Henderson’s behavior; he was tired
of the situation and having to constantly act as the peacemaker. Even though Henderson had a violent temper
and had been acting out a lot recently, defendant allowed him to come over and
visit because he was family.
A few days
before the shooting, Henderson gave defendant his dog. Defendant did not want to take the dog since
Henderson had already gotten into one altercation over the dog, but Henderson
insisted. Defendant and Henderson gave
the dog to defendant’s children as an early Christmas present. On the day of the shooting, while Henderson
was visiting, Henderson said he needed the dog back. Defendant told Henderson he was not going to
give him the dog and, technically, it was defendant’s dog since he had paid
King for it. Henderson became very
agitated, began pacing, said “you think I’m playing†and headed toward the
house. Defendant followed Henderson,
thinking he was going to try to take the dog.
As Henderson walked into the house, defendant saw him pull a gun from
his waistband. Defendant ran up to
Henderson, bear-hugged him, put a hand over the gun, and elbowed him to get
possession of the gun. Once he had the
gun, defendant pushed Henderson away.
Henderson continued to say he was not “playing†and came at
defendant. When Henderson came toward
him, defendant fired the gun one time and Henderson fell to the ground. At the time he fired the gun, defendant
feared for his life because he knew if Henderson pulled a gun he intended to
use it. Defendant felt that if Henderson
were able to get the gun back, he would have killed him. When he fired the gun, defendant was afraid
for his life.
After the
shooting, JoAngel came out of her room and defendant saw D. looking at him,
although he testified she did not see the shooting. Concerned for his children, defendant put the
gun in his pocket, covered D.’s eyes, and asked JoAngel to help him remove the
children from the house. After getting
all of the children to a neighbor’s house, he told JoAngel to call the
police. Wanting to get the gun away from
the house and kids, defendant left the area on foot.
Defendant
later saw Allen and asked him to hold the gun and told him to “give it to the
boys if they come looking for it.â€
Defendant explained he did not wait for the police to respond because he
had recently gotten out of jail and did not want to go back. He felt the police would not believe him, so
he wanted to “tie up a couple loose ends†before turning himself in. He did not tell the police what happened when
they interviewed him because he wanted to have a lawyer present; he knew
anything he said could be used against him.
Defendant
admitted being convicted of felonies in 1999, 2006, and 2008. Defendant identified the .357 magnum revolver
that was recovered by Detective Moore as Henderson’s gun.
Henderson
was about 49 years old and weighed about 130-140 pounds at the time he was
shot, while defendant was 33 at the time of trial and weighed 300 pounds. Defendant admitted he was a good fighter and
could defend himself well. Although
defendant was aware of prior incidents when Henderson had threatened others
with a gun, he admitted he knew Henderson never actually shot anyone.
Defendant
claimed he did not have a hot temper; however, he did admit to shooting a man
in the leg as he was running away from him in 2007, as well as hitting JoAngel
on two occasions when they were married.
Bobbie
Hawkins, Henderson’s ex-girlfriend, testified Henderson often had guns and had
held her at gunpoint a few years earlier.
She also described an incident where Henderson threatened her cousin
with a knife a few months before the shooting.
Several
witnesses described defendant as a calm and nonviolent person. Charmaine testified Henderson was a violent
man and he could become violent very quickly.
She also confirmed Henderson liked to carry guns and she identified the gun
in this case as belonging to Henderson.
Rowel also testified, confirming Henderson had previously threatened him
and that Henderson often carried guns.
Cell phone
records belonging to Eric Peterson were admitted into evidence after both sides
rested. Officer Richard Dossey obtained
JoAngel’s cell phone number on the date of the shooting. The records showed nine calls between Eric
Peterson and JoAngel on the day of the shooting.
I. The Gun Evidence Was
Properly Admitted
Defendant
contends the trial court erred in denying his
as well as the testimony of Allen as these items were obtained in violation of
the officer’s continued questioning of him regarding the gun after he invoked
his right to an attorney required suppression of the above evidence. Plaintiff counters the trial court was
correct in its ruling that a violation of the Miranda/Edwards rules does not require suppression of physical or
third party evidence where the defendant’s statements were voluntary. In addition, plaintiff argues the evidence
was admissible pursuant to the public safety exception. We find the evidence was properly admitted.
Prior to
trial, defendant moved to exclude the gun and any testimony from Allen
regarding the gun as the evidence was obtained as the fruit of a
hearing, where it was established Detective Moore interviewed defendant after
the shooting. Prior to beginning the
interview, Detective Moore read defendant his Miranda rights. At some
point during the course of the interview defendant invoked his right to
counsel, stating he would prefer to talk to a lawyer. Moore ceased questioning defendant any
further and contacted other officers to transport defendant to the jail.
Officer
Kroeker escorted defendant to the jail after he was interviewed by Detective
Moore. Kroeker was informed defendant
had invoked his Miranda rights. On the way to the jail, defendant began
crying and appeared quite upset. Kroeker
asked defendant what was wrong.
Defendant replied “[M]an, I let those detectives down.†When the officer asked defendant what he
meant by that, defendant stated, “I should have told them that I dropped my uncle.†Knowing defendant had invoked his rights,
Kroeker ceased any further conversation on that topic.
As the
officer arrived at the jail, he asked defendant some questions regarding the
location of the firearm. He did so out
of concern for the public’s safety because he knew the gun had not yet been
recovered, that the area is populated, and there was an elementary school in
the vicinity. In questioning defendant
about the location of the gun, the officer explained to defendant it would be a
shame for a child to pick up a firearm and have something bad happen. Defendant informed the officer he had given
the gun to “my boy Rock.†The officer
further inquired as to whether Rock was in a vehicle or on foot to determine
whether the gun was possibly still in an area accessible by the public. Defendant explained Rock was on foot and
further stated he had told Rock he would be back to pick up the firearm at a
later point. The officer subsequently
asked defendant to describe Rock so he could identify him.
According
to Officer Kroeker, the conversation, which took place in the patrol car, was
very casual and informal. The officer
explained his entire contact with defendant was respectful. He never raised his voice, displayed any
weapons, and did not promise defendant anything during the conversation. Defendant answered the questions in a normal
conversational manner without any noticeable time gaps.
The trial
court held that defendant had invoked his Miranda
rights, but his statements to Officer Kroeker were voluntary and not
coerced. As the gun was located as a
result of the voluntary statement, evidence of the gun itself was
admissible. The prosecutor indicated he
was not seeking the introduction of defendant’s statements regarding the
location of the gun as those statements constituted a violation of
statements would be excluded.
name="_ftnref4" title="">[4] He indicated he would, however, be seeking to
introduce Allen’s testimony regarding his contact with defendant and the
resulting gun evidence. When asked if he
sought an Evidence Code section 402 hearing on the matter, defense counsel
informed the court it would not be necessary as the court’s ruling regarding
the gun evidence would require the defense to produce evidence regarding all of
defendant’s statements regarding the gun.
Analysis
We begin
with a brief review of the well-settled principles regarding Miranda and Edwards.
“As a prophylactic safeguard to protect a suspect’s
Fifth Amendment privilege against self-incrimination, the United States Supreme
Court, in Miranda, required
law enforcement agencies to advise a suspect, before any custodial law
enforcement questioning, that ‘he has the right to remain silent, that anything
he says can be used against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires.’ [Citations.]
If the suspect knowingly and intelligently waives these rights, law
enforcement may interrogate, but if at any point in the interview he invokes
the right to remain silent or the right to counsel, ‘the interrogation must
cease.’ [Citations.]†(People v. Martinez (2010) 47 Cal.4th
911, 947.)
In Edwards, the United States Supreme Court
“superimposed a ‘second layer of prophylaxis’†to implement Miranda when
a suspect invokes his right to counsel.
(Maryland v. Shatzer (2010) 559 U.S. 98, 104.)
“[A]n accused …, having expressed his desire to deal
with the police only through counsel, 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.)
The Supreme Court has “frequently emphasized that the
mandate, but a judicially prescribed prophylaxis.†(Shatzer,
supra, at p. 105.) And “[b]ecause Edwards is ‘our rule, not a constitutional command,’ ‘it is our
obligation to justify its expansion.’†(
Defendant
argues the failure to honor the invocation of his right to counsel requires the
suppression of any evidence obtained as a result of further questioning under
the “fruits†doctrine of Wong Sun v.
United States (1963) 371 U.S. 471.
While acknowledging the United States Supreme Court has rejected this
very argument in the context of the failure to provide Miranda warnings (United
States v. Patane (2004) 542 U.S. 630), he contends a different rule should
apply when the derivative evidence is obtained in violation of
The deliberate failure to honor the invocation of these rights,
defendant argues, requires the imposition of the “fruits†doctrine. We disagree.
In
held the failure to provide warnings in accordance with Miranda does not require the suppression of physical fruits of the
unwarned statement. (
violating a restraining order. (
was in illegal possession of a firearm.
(Id. at p. 634.) Upon his arrest, officers attempted to read
the defendant his Miranda
rights. However, he interrupted, asserting
he knew his rights and the rights were never fully provided. (Patane,
at p. 635.) The officers proceeded to
question the defendant about the presence of a gun and the defendant ultimately
provided information to its location. (
The question before the Supreme Court was “whether a failure to give a
suspect the warnings prescribed by Miranda
… requires suppression of the physical fruits of the suspect’s unwarned but
voluntary statements.†(
In
answering the question in the negative, the Supreme Court, in a plurality
opinion authored by Justice Thomas, pointed out that the core purpose of the
Fifth Amendment’s self-incrimination clause is to protect a defendant from
being compelled to testify against himself at trial. (United
States v. Patane, supra, 542 U.S.
at p. 637.) The court explained “the
to protect against violations of the Self-Incrimination Clause,†which “is not
implicated by the admission into evidence of the physical fruit of a voluntary
statement.†(Id. at p. 636.) This is
because the admission of physical evidence obtained through voluntary
statements cannot violate the right against self-incrimination
as the right itself is a trial
right. (Id. at pp. 637, 641.)
Because the
Miranda rule is a prophylactic
measure that “necessarily sweep[s] beyond the actual protections of the
Self-Incrimination Clause,†its extension “must be justified by its necessity
for the protection of the actual right against compelled
self-incrimination.†(
fundamentally a trial right, it is not violated “by negligent or even
deliberate failures to provide the suspect with the full panoply of warnings
prescribed by Miranda.†(Id.
at p. 641.) Rather, “violations occur,
if at all, only upon the admission of unwarned statements into evidence at
trial. And, at that point ‘[t]he
exclusion of unwarned statements … is a complete sufficient remedy’ for any
perceived Miranda violation.†(Id.
at pp. 641-642.) Thus, there is no
reason to exclude fruits of unwarned statements. (Patane,
at p. 642.) Similarly the court rejected
a deterrence argument, noting that admitting nontestimonial fruit of a
voluntary statement “presents no risk that a defendant’s coerced statements
(however defined) will be used against him at a criminal trial.†(Id.
at p. 643.) Consequently there is no
reason to extend the rule to that context.
We find the
reasoning of United States v. Patane
to be fully applicable to a situation such as this, where there is continued
questioning after the invocation to the right to counsel. As we have already noted, the rule requiring
cessation of questioning after a suspect invokes the right to counsel is simply
a second layer of prophylaxis to protect the rule announced in
(Maryland v. Shatzer,
sweeps more broadly than the constitutional right it protects, therefore, its
expansion must be limited to the right it protects. (Maryland
v. Shatzer, supra, at p. 105
[“because Edwards is ‘our rule, not a
constitutional command,’ ‘it is our obligation to justify its expansion’â€].) Similarly, like Miranda, the Edwards rule
simply creates a generally irrebuttable presumption of coercion when statements
are obtained outside of its mandates forbidding the use of such statements in
the prosecution’s case-in-chief. (
in custody, Edwards presumption no
longer applies]; Oregon v. Hass
(1975) 420 U.S. 714, 722 [defendant’s statements after requesting an attorney
admissible to impeach defendant’s testimony]; People v. Peevy (1998) 17 Cal.4th 1184, 1193 [statement taken in
deliberate violation of Edwards,
while inadmissible in prosecution’s case-in-chief, is admissible to impeach
defendant’s testimony].)
Further,
longstanding Supreme Court precedent supports this conclusion. In Michigan
v. Tucker (1974) 417 U.S. 433, the Supreme Court declined to extend the
exclusionary rule to suppress testimony of a witness who was discovered as a
result of a defendant’s statement taken in violation of Miranda. Likewise, in
the court declined to extend the “fruit†analysis to a situation where an
initial unwarned statement was followed by a subsequent statement which was
properly Mirandized. The court held it “is an unwarranted
extension of Miranda to hold that a
simple failure to administer the warnings, unaccompanied by any actual coercion
or other circumstances calculated to undermine the suspect’s ability to
exercise his free will, so taints the investigatory process that a subsequent
voluntary and informed waiver is ineffective for some indeterminate
period.†(Elstad, at p. 309.) More
recently, in Missouri v. Seibert
(2004) 542 U.S. 600, a majority of the court continued to reject using the
“fruit†analysis in a sequential confession case. (Id.
at p. 612, fn. 4 (plur. opn. of Souter, J.) [“Elstad rejected the Wong Sun
fruits doctrine for analyzing the admissibility of subsequent warned confession
following ‘an initial failure … to administer the warnings required by
appropriately follows Elstad in
concluding that Seibert’s statement cannot be held inadmissible under a ‘fruit
of the poisonous tree’ theoryâ€].)
In
Cal.App.4th 947, this court had occasion to analyze the Elstad and Michigan v. Tucker
decisions in determining whether the “fruits†doctrine applied to physical
evidence obtained by a noncoercive Miranda
violation. After reviewing those cases
we held, as did the United States Supreme Court later did in
cases applied equally to physical evidence obtained from a Miranda violation. (
“the United States Supreme Court has stated
unequivocally, in Elstad and
constitutional violation. As the
infringement of the suspect’s constitutional rights, the case was not
controlled by the doctrine expressed in Wong
Sun that fruits of a constitutional violation must be
suppressed ….’ (
Thus, while the high court has not actually decided a case involving
physical evidence seized as a result of a Miranda
violation, it has decided the premise from which it necessarily follows that
physical evidence seized as a result of a noncoercive Miranda violation is not excludable under the Wong Sun doctrine.†(
Likewise
here, it is clear from a review of United
States v. Patane that the United States Supreme Court has decided the
premise which controls this case. As the
court has held, the admission of nontestimonial physical “fruit†of a voluntary
statement does not implicate the self-incrimination clause. (United
States v. Patane, supra, 542 U.S.
at pp. 641-642.)
Indeed our
own Supreme Court has indicated its willingness to apply United States v. Patane to an Edwards
violation in People v. Davis (2009)
46 Cal.4th 539, 598-599. There the
California Supreme Court noted that a violation of Miranda and Edwards would
not “taint the admissibility of any physical
evidence derived from those confessions.â€
(Davis, at p. 598.) Citing Patane,
the court explained the “fruit†doctrine does not apply to noncoercive
out that a violation of Edwards “does
not mean that any ensuing confession was coerced.†(Davis,
at p. 598.) Davis discussed these principles in determining that any admission
of statements taken in violation of Edwards
was harmless, as the derivative physical evidence would have nevertheless been
fully admissible. (Davis, at pp. 598-599.)
Defendant
argues that applying the exclusionary rule to fruits of an Edwards violation would provide an appropriate deterrent for police
from intentionally violating a suspect’s rights. We disagree.
Like the court articulated in Patane,
the exclusion of a suspect’s statements from trial is a complete remedy for the
violation of the right against self-incrimination. (United
States v. Patane, supra, 542 U.S.
at pp. 642-643.) As the
above that required by the Fifth Amendment, extension of the rule to that
context is unwarranted. Further, as to a
deterrent effect, we note that under well-settled law, not only are statements
obtained by a violation of Edwards
already inadmissible, but so are the fruits of an actually coerced
statement. (Patane, at p. 644.)
Further,
the Supreme Court in Oregon v. Hass
rejected a similar deterrence argument.
There, the court held that a statement taken after valid
defendant requested to speak to an attorney, while not admissible in the
prosecution’s case-in-chief could, in fact, be admitted to impeach the
defendant’s contrary testimony. (
The court explained that while one could argue that an officer may have
an incentive to question a suspect further after the invocation of the right to
counsel in the hopes of securing impeachment evidence, those cases could “be
taken care of when it arises measured by the traditional standards for
evaluating voluntariness and trustworthiness.†(Id. at p. 723.) Indeed, when
a statement is taken in violation of Edwards
and found to be involuntary, it is excluded for all purposes. (People
v. Neal (2003) 31 Cal.4th 63, 79-85.)
We note
several state Supreme Courts as well as some federal circuit courts have come
to the same conclusion. (
S.W.2d 19, 22-23 [“fruits†doctrine inapplicable to noncoercive violation to
honor invocation of Miranda rights];
327-329 [same]; People v. Bradshaw
(Colo. 2007) 156 P.3d 452, 459-460 [continued questioning of suspect after
invocation of right to counsel did not invalidate subsequent voluntary consent
to mouth swab that led to admission of inculpatory DNA evidence];
P.3d 456, 460-461 [physical “fruit†of Edwards
violation obtained from voluntary statement admissible] cert. den.
377-379 [“the exclusionary rule does not apply to evidence derived from a
voluntary statement[] obtained in violation of Edwards, … and that it was not error to admit the ‘fruits’ of the
defendant’s statementâ€], overruled on other grounds in Morgan v. State (1996) 267 Ga. 203; Taylor v. State (2001) 274 Ga. 269, 276 [553 S.E.2d 598, 604-605]
[exclusionary rule does not apply to physical “fruit†of voluntary
[“fruits†doctrine does not apply to Edwards
violation where underlying statement was voluntary]; U.S. v. Gonzalez-Garcia (5th Cir. 2013) 708 F.3d 682; 686-687 [
suppression of physical “fruits†of statement]; Martin v. Wainwright
(11th Cir. 1985) 770 F.2d 918,
928 [police failure to honor suspect’s request to “cut off†questioning does
not make fruits of ensuing voluntary confession inadmissible], aff. as mod.
(11th Cir. 1986) 781 F.2d 185, abrogated on other grounds in
30 F.3d 1420; U.S. v. Mendoza-Cecelia
(11th Cir. 1992) 963 F.2d 1467, 1474 [“fruits†doctrine did not bar use of subsequent
voluntary confession after suspect invoked right to counsel], abrogated on
other grounds in Coleman v. Singletary
(11th Cir. 1994) 30 F.3d 1420; see Greenawalt
v. Ricketts (9th Cir. 1991) 943 F.2d 1020, 1026-1027 [following
voluntary confession inadmissible on the ground of Edwards does not taint a subsequent voluntary confession].)
Defendant
argues this court should follow the decision in State v. Venegas (Fla.App. 2012) 79 So.3d 912. There, a Florida appellate court declined to
apply United States v. Patane to a
situation where a defendant was advised of and invoked his Miranda rights, but was subsequently questioned resulting in the
discovery of physical evidence. The
court reasoned that Patane did not
apply because the defendant had been advised of and invoked his right to
counsel. In distinguishing
defendant’s statement could not be considered voluntary simply because it
occurred after the defendant invoked his right to counsel. (State
v. Venegas, supra, at p.
915.) However, our own Supreme Court has
held that mere questioning after a suspect invokes his right to counsel is not
necessarily coercive. (
1005, 1040; People v. Storm (2002) 28
Cal.4th 1007, 1033; People v. Davis,
California Supreme Court, we decline to follow its holding.
Concluding
that fruit of the poisonous tree doctrine does not apply to the physical
evidence in the case, namely the firearm as well as Allen’s testimony, does not
end our analysis. We must also consider
whether defendant’s statement was in fact voluntary and not coerced.
The rules
regarding whether a statement is voluntary are well-settled. A statement is considered involuntary “if it
is not the product of ‘“a rational intellect and free will.â€â€™ [Citation.]
The test for determining whether a confession is voluntary is whether
the [witness’s] ‘will was overborne at the time he confessed.’†(People
v. Maury (2003) 30 Cal.4th 342, 404.)
A statement may be coerced by either physical intimidation or
psychological pressure. In cases of
psychological coercion, the question is “‘“whether the influences brought to
bear upon the accused were ‘such as to overbear [the accused’s] will to resist
and bring about confessions not freely self-determined.’ [Citation.]â€â€™â€ (Ibid.) “‘“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.â€â€™â€ (People v. Williams, supra,
49 Cal.4th at p. 436; see also People v.
Ray (1996) 13 Cal.4th 313, 340; People
v. Thompson (1990) 50 Cal.3d 134, 166-167.)
Defendant
does not argue his statements as to the location of the gun were coerced, and
nothing in the record would support such a conclusion. The record does, however, support a finding
that defendant voluntarily made the statements regarding the location of the
gun to Officer Kroeker. The officer
testified that upon arriving at the jail, he had said something to the effect
that it would be a shame if a child were to come across the gun and be harmed. Defendant then immediately provided the
officer with the statement that he had given the gun to “Rock.†Officer Kroeker testified he made no threats
toward defendant, the exchange was in a conversational tone, and defendant
answered the question without delay. No
weapons were used, nor was there any evidence that defendant was in any way
badgered into making the statement. It
appeared to be a very short exchange during which defendant freely made the
statement. As there is no hint of compulsion
on the record, we find the subsequent fruits of the statement were fully
admissible.
II. Admission of the Phone
Records Was Proper
Defendant
argues the trial court abused its discretion in admitting evidence of cell
phone records as the evidence was irrelevant.
We disagree.
Evidence
Code section 351 provides that “all relevant evidence is admissible†unless it
is otherwise prohibited. Relevant
evidence is defined as evidence “having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action.†(Id., at § 210.)
“Evidence is relevant if it tends ‘“logically, naturally, and by
reasonable inference†to establish material facts such as identity, intent, or
motive.’†(People v. Williams (2008) 43 Cal.4th 584, 633-634.) A trial court enjoys broad discretion in determining
the relevancy of evidence. (People v.
Cash (2002) 28 Cal.4th 703, 727.) We
review a trial court’s rulings on relevance and the admissibility of evidence
for abuse of discretion. (People v.
Aguilar (2010) 181 Cal.App.4th 966, 973.)
Defendant
contends the evidence of the phone records was irrelevant because there was no
evidence showing the phone records at issue belonged to the same Eric Peterson
referred to by the witnesses. Defendant
is mistaken.
Evidence at
trial established JoAngel’s phone number.
The phone records, admitted as People’s exhibit 57, included a summary
page establishing the records belonged to “Eric Peterson†and listed a
Bakersfield address. The phone number
belonging to Peterson is listed. The
records themselves showed nine telephone calls between JoAngel’s phone number
and Peterson’s on the day of the shooting, which would establish this was in
fact the same Peterson to which the witnesses referred.
Additionally,
Davis testified Charmaine took a phone call from JoAngel sometime before coming
back from the store and that afterwards she was frustrated and rattled. She relayed that only she, Charmaine, and
Peterson went to the store together, and the phone call took place a few hours
before the shooting. Davis recalled that
Peterson had a phone number with a 510 area code and the phone records at issue
were for a phone number with a 510 area code.
The records further established there was a phone call between
Peterson’s and JoAngel’s telephones at 3:12 p.m., exactly within the time frame
to which Davis testified. This further
establishes the relevance of the records at issue.
Moreover,
Charmaine testified Peterson was with her on the day of the shooting and he had
given Henderson a ride to JoAngel’s home.
She claimed she had not spoken to JoAngel before the shooting because
she did not have a cell phone at the time and JoAngel did not have Peterson’s
phone number. However, Charmaine further
stated she called JoAngel sometime after the shooting, while she was with
Peterson, and JoAngel told her to come over immediately but did not tell her
what had happened. The phone records at
issue show a very brief call from Eric Peterson’s phone to JoAngel at 6:21
p.m., which further established the records in question were for the same Eric
Peterson involved in this case.
JoAngel
testified she did not know anyone by the name of Eric Peterson. However, the records show nine telephone
calls between JoAngel’s number and the number listed for Peterson on the day of
the shooting. This further establishes
the relevance of the records.
In light of
the above testimony, the records were relevant to corroborate Davis’s testimony
that Charmaine took a call from JoAngel on the date in question, and also to
impeach JoAngel’s testimony that she did not know anyone by the name of Eric
Peterson. Defendant’s main argument is
that the records are irrelevant because they could have belonged to another
Eric Peterson and had nothing to do with this case. However, defendant’s arguments go to the weight
of the evidence, not its admissibility.
(People v. Sorrentino (1956)
146 Cal.App.2d 149, 162.) Considering
the above testimony in light of the actual phone records, it is clear that a
reasonable person could conclude that the records belonged to the Eric Peterson
to whom the witnesses referred, and the jury could give those records whatever
weight they saw fit. Thus, the records
were relevant and properly admitted.
Defendant
argues the phone records were irrelevant because they did not demonstrate a call
between JoAngel and Peterson within a few hours of the shooting as she
testified. First, we note the timing of
the calls would go to the weight of the evidence, not its admissibility. Second, a review of the actual phone logs at
issue reveals there was in fact a 32-second call between Peterson’s and
JoAngel’s telephones at 3:12 p.m., exactly within the time frame defendant
argues would be consistent with the testimony.
This, of course, is entirely consistent with Davis’s testimony that
Charmaine and JoAngel spoke shortly before Henderson went to JoAngel’s house,
and that the call occurred a few hours before the shooting.
As the
records were relevant, the trial court did not err in admitting them. Even if this court were to conclude the
records were irrelevant, we would find any error harmless. The erroneous admission of the evidence does
not require reversal of the judgment unless it is reasonably probable defendant
would have obtained a more favorable result had there been no error. (People v. Earp (1999) 20 Cal.4th 826,
878.) The admission of the phone records
added little to the case. The issue
presented to the jury was whether defendant killed Henderson with premeditation
or if he was acting in self-defense. At
most, the challenged evidence shows there were calls between JoAngel’s phone
and Peterson’s phone on the day in question.
However, the fact of the phone call does not establish what was said on
the call. Defendant seems to argue the
phone records somehow established the prosecution’s theory that Henderson came
to the home at JoAngel’s request. But
there was never any evidence regarding the content of the call, and the
admission of the records did not change that in any way. Davis had already testified that Charmaine
spoke to JoAngel sometime before Peterson drove Henderson to JoAngel’s
house. While the records corroborate a
conversation took place, that is all they could establish. Defendant argues the jury obviously relied on
the phone records in deliberations. To
support this conclusion he points to the fact the jury requested to see the
records during deliberations. However,
defendant neglects to mention the jury never had the opportunity to observe the
records during trial. Indeed, the
records were not even admitted until both parties had rested their cases. The records were mentioned by both the
prosecutor and defense in their closing
arguments. As that is the first time
they were ever mentioned, it is hardly surprising the jury requested to see
them.
Considering
the record as a whole, the admission of the records was clearly harmless.
DISPOSITION
The
judgment is affirmed.
__________________________
PEÑA, J.
WE CONCUR:
________________________________
CORNELL, Acting P.J.
________________________________
KANE, J.
name="_ftn1" title="">[1]All
further references are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2]Due
to the fact that several of the witnesses have the same last name, we will
refer to them by their first names. No
disrespect is intended.
