Opinion
H024933.
10-7-2003
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS EDWARD CONNER, Defendant and Appellant.
Defendant Douglas Edward Conner appeals after conviction, by court trial, of two counts of selling or furnishing a controlled substance to a minor (Health & Saf. Code, § 11353), one count of performing a lewd act upon a child (Pen. Code, § 288, subd. (c)(1)), and one count of providing alcohol to a minor (Bus. & Prof. Code, § 25658, subd. (a)). The trial court found true one prior conviction allegation (Pen. Code, § 1170.12) and one prior prison term allegation (Pen. Code, § 667.5, subd. (b)). Defendant was sentenced to a total of 11 years in prison.
On appeal, defendant argues that the trial court erred in admitting his interview with the Monterey County Sheriffs Department into evidence. Defendant contends that he was in custody at the time he gave his statement to the police, and that the statement was inadmissible since he had not been advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We will affirm the judgment.
I. BACKGROUND
In 1997, defendant married Leora Conner, mother to Jane Doe 2, Jane Doe 1, and Daniel. Together, defendant and Leora had another daughter, Jane Doe 3.
In May of 2000, Leora and defendant physically separated, and Leora and Jane Doe 3 moved into a mobile home in King City. Jane Doe 1 and Jane Doe 2 stayed with their father in King City, but they would visit Leora several times a week. Defendant would come to visit Jane Doe 3 on an erratic schedule, spending the night at Leoras home about half the time he visited.
Jane Doe 1 began smoking marijuana at age 12 and later used methamphetamine and other drugs, while Jane Doe 2 began smoking marijuana at age 14 and began using methamphetamine and cocaine a year later.
On August 11, 2001, defendant and Jane Doe 1 visited Leoras home. Leora had been ill and she fell asleep on the couch that evening. At about 4:00 a.m. on August 12, 2001, Leora woke up, saw Jane Doe 3 asleep on the couch next to her, and put Jane Doe 3 to bed. Leora then wondered where Jane Doe 1 had gone, and noticed the door to the spare bedroom was shut.
Leora opened the door, turned on the light, and discovered defendant and Jane Doe 1 on the twin bed. Jane Doe 1 had "her bra over her head, one leg out of her panties" and defendant was naked, lying next to her on his side. Leora "yelled and screamed and . . . hit him" with her fists. Defendant attempted to collect his clothes, which were in a pile on the floor. Leora followed him into the kitchen and told him, "`I could turn you in." Defendant responded, "`Theres no evidence. Theres no semen." Leora made defendant leave her home.
Jane Doe 1 testified that earlier that evening defendant had given her a mixed drink of vodka and fruit juice. Jane Doe 1 later found defendant in the spare bedroom smoking methamphetamine from a crank pipe. She saw that Jane Doe 3 had fallen asleep on the couch next to Leora. Jane Doe 1 joined defendant in the spare room and took one hit from his crank pipe. Jane Doe 1s next memory was of waking up next to defendant on the twin bed, although she testified that it was not normal that one drink and one hit of methamphetamine would make her pass out. Jane Doe 1 testified that defendant was "completely naked" and that she found hickeys on her neck the next morning.
Jane Doe 2 testified that defendant had provided her with drugs between 75 and 100 times. She also saw defendant provide drugs to her sister Jane Doe 1 on multiple occasions. Jane Doe 2 and defendant would use methamphetamine and cocaine together in Leoras home while Leora was at work.
Jane Doe 2 recalled a specific incident, during Christmas break of her sophomore year in high school, when she and defendant shared drugs at the Good Nite Inn in Salinas. Together with defendants friend Glen "Butch" Wright, defendant and Jane Doe 2 smoked methamphetamine in the motel room. Defendant then prepared crack cocaine in front of Jane Doe 2, using powdered cocaine, water and baking soda, a glass jar, and a metal Brillo-type pad. Defendant shared the crack cocaine with Jane Doe 2, who smoked some of it. This was Jane Doe 2s first time smoking crack cocaine.
Glen "Butch" Wright testified that he had accompanied defendant and Jane Doe 2 to the Good Nite Inn on New Years Day. There, he shared methamphetamine with defendant and Jane Doe 2. He had brought methamphetamine to the room himself, but did not recall whether defendant had also brought any. Wright and defendant then prepared crack cocaine, with Jane Doe 2 present. Wright had observed defendant providing drugs to Jane Doe 2 on more than one prior occasion.
In November of 2001, Leora reported the August 12, 2001 incident involving Jane Doe 1 to the police. Detective William Kaye of the Monterey County Sheriffs Office attempted to locate defendant. On January 25, 2002, Sergeant Robert Bryant of the Monterey County Sheriffs Office received a message from Leora, concerning defendants whereabouts. Sergeant Bryant relayed the message to Detective Kaye, who then authorized Sergeant Bryant to attempt to contact defendant.
Sergeant Bryant arrived at 536 Park Street, Salinas, in an unmarked vehicle. He parked roughly 50 yards from the residence. Shortly, he saw defendant drive up to the residence with a woman and two children in a black pickup truck. Sergeant Bryant noticed that defendant was "pointing at the woman and rather animated, and it appeared . . . as though he was upset with her over some issue."
Sergeant Bryant requested Salinas Police Department backup, in case the situation escalated into a domestic dispute. Detective Nelda Sanders of the Monterey County Sheriffs Department arrived on the scene in an unmarked vehicle before the Salinas Police backup arrived. An officer from the Salinas Police Department arrived within "a matter of minutes" in a marked patrol vehicle with a cage.
Sergeant Bryant approached defendant and informed him that a detective wished to speak with him about a case involving his stepdaughter. Defendant consented to an interview at the sheriffs department.
Neither Sergeant Bryants nor Detective Sanders car was a transport unit. The Salinas police officer therefore transported defendant to the sheriffs department. The Salinas officer frisked defendant and defendant "ended up in the [back of the patrol] car." Sergeant Bryant did not see whether defendant was placed in the car or sat there of his own accord. Generally, the rear doors of a patrol car cannot be opened from the inside. Upon arriving at the sheriffs department, the Salinas police officer escorted defendant inside.
Sergeant Bryant showed defendant to an interview room in the investigation division of the sheriffs department. The interview room had two doors: one was locked, while the other opened into a hallway with adjacent cubicles. Sergeant Bryant provided defendant with pen and paper, made sure defendant was comfortable, and left the door to the interview room open until Detective Kaye arrived. Defendant, when asked to wait for Detective Kaye, told Sergeant Bryant, "Not a problem. My time is your time."
Detective Kaye arrived, introduced himself to defendant, and immediately told him, "[Y]ou know that you are not under arrest right now right? . . . That you are here voluntarily to talk to us." Defendant agreed: "Yeah." Detective Kaye proceeded to question defendant, who answered at length. Defendant indicated to Detective Kaye that the detectives questioning was "fair enough" and "honest." Throughout the interview, defendant only refused to answer one question, regarding any partners he may have had at the time he dealt drugs.
Defendant admitted to Detective Kaye that he had shared drugs with Jane Doe 1. Detective Kaye explained how this amounted to supplying her; defendant responded, "Okay, fair enough, I guess." Defendant stated that on August 11, 2001, he and Jane Doe 1 had drunk vodka with juice and smoked half a bowl of crank. Defendant and Jane Doe 1 later put Jane Doe 3 to bed and read her a book. Defendant fell asleep on the bed and was awakened by Leora standing over him. Defendant stated he was not naked, but wearing his boxer briefs, in which he normally slept. Defendant was not sure whether Jane Doe 1 was dressed, since he did not look her way when Leora woke him.
Detective Kaye and defendant had the following exchange:
"[KAYE]: Well, you gotta admit you wake up naked next to your fourteen-year-old daughter thats kind of wrong.
"[DEFENDANT:] I wasnt naked but I mean ...
"[KAYE]: You were in your boxers.
"[DEFENDANT]: Yeah, agreed, that is wrong.
"[KAYE]: Thats pretty ...
"[DEFENDANT]: Thats, thats, that looks real bad. That looks real bad.
"[KAYE]: And you being a man ...
"[DEFENDANT]: Responsibility falls on me."
Defendant also admitted that he had taken Jane Doe 2 to the Good Nite Inn in Salinas, where she "smoked a couple bowls" of methamphetamine. However, defendant claimed that Wright had provided the methamphetamine. Detective Kaye and defendant then had the following exchange:
"[KAYE]: Let me ask you this, do you think you did any wrong?
"[DEFENDANT]: You know what, if I look at it, do I think I did anything wrong? Like had sex with Jane Doe 1 or anything like that.
"[KAYE]: I mean no, just being naked in the bed with her.
"[DEFENDANT]: Thats wrong.
"[KAYE]: I know it is. (unintelligible)
"[DEFENDANT]: (Unintelligible) Thats wrong, thats wrong.
"[KAYE]: I know it is.
"[DEFENDANT]: Thats wrong, give me the (unintelligible). Thats wrong.
"[KAYE]: Giving Jane Doe # 2 crack before, I mean, she turned 16.
"[DEFENDANT]: Okay, yeah, um, okay."
Detective Kaye left the room to grab a pen and a drink of water; he offered a drink to defendant, who accepted. Sergeant Bryant brought defendant a Coke. Detective Kaye returned to the interview room and questioned defendant further on the events of August 12 and his relationship with Jane Doe 1. Defendant and Detective Kaye then had the following exchange:
"[DEFENDANT]: You know being here is embarrassing.
"[KAYE]: Well no one knows youre here.
"[DEFENDANT]: It dont matter if they know or not. Its embarrassing if somebodys even leveling those kind of charges at me.
"[KAYE]: You know that youre free to go at any time?
"[DEFENDANT]: No it aint like that, I want it done. I want to get acquitted, `cause see once this is over with then I can bring [a] defamation of character charge."
Defendant later asked to use the restroom "[i]f possible." Detective Kaye responded, "Sure." After some additional questioning, Detective Kaye moved to end the interview:
"[KAYE]: Okay. Have anything else that you want to add.
"[DEFENDANT]: Nah.
"[KAYE]: Okay. Well, you know that you were here voluntarily and you could have left at any time, alright.
"[DEFENDANT]: But now Im not gonna."
Detective Kaye then placed defendant under arrest, but at no point read him his Miranda rights. The entire interview lasted less than 90 minutes.
Defendant was charged by information with two counts of furnishing a controlled substance to a minor (counts 1 & 4; Health & Saf. Code, § 11353), two counts of child endangerment (counts 2 & 5; Pen. Code, § 273, subd. (a)), one count of threats of violence (count 3; Pen. Code, § 422), one count of performing a lewd act upon a child (count 6; Pen. Code, § 288, subd. (c)(1)), and one count of providing alcohol to a minor (count 7; Bus. & Prof. Code, § 25658, subd. (a)). The information also alleged that defendant had two prior convictions that qualified as "strikes" under the three-strikes law, (Pen. Code, § 1170.12) and that he had served two prior prison terms (Pen. Code, § 667.5, subd. (b)).
On May 20, 2002, at the start of trial, the People moved to dismiss counts 2 and 5 (child endangerment), count 3 (threats of violence), one of the strike allegations, and one of the prior prison term allegations. The remaining charges were renumbered: counts 1 and 2 became the two counts of furnishing a controlled substance to a minor, count 3 became the lewd act count, and count 4 became the misdemeanor count of providing alcohol to a minor. Defendant waived his right to a jury trial in exchange for a maximum sentence of 12 years.
At the court trial, defendant moved to suppress his statements to Detective Kaye and Sergeant Bryant. After an evidentiary hearing, the trial court denied the motion. The trial court explained that it had considered "the length of the questioning, the length of the detention, the number of officers, the [lack of] use of handcuffs, the [lack of] drawing of weapons, whether weapons were present or observed, whether or not the suspect was told he was free to go, the manner of the questioning, the location of the questioning, and where the questioning took place," as well as the statements made by defendant during the interview. The trial court concluded that at the time he made his statement, defendant had not been in "a custodial situation under the Miranda purposes."
Defendant was convicted on all four counts, and the trial court found true the strike and prior prison term allegations. Defendant was sentenced to a total of 11 years in prison. The trial court imposed concurrent three-year terms for counts 1 and 2, doubled to six years pursuant to the three strikes law; a consecutive term of four years for count 3; one year for the prior prison term enhancement; and time served for the misdemeanor.
II. DISCUSSION
Defendant maintains that his statements to the sheriffs officers were inadmissible because he was in custody at the time he gave the statements, without having been read his Miranda rights. (Miranda v. Arizona, supra, 384 U.S. 436.) Under Miranda, an individual held for custodial interrogation "must be warned prior to any questioning that he [or she] has the right to remain silent, that anything he [or she] says can be used against him [or her] in a court of law, that he [or she] has the right to the presence of an attorney, and that if he [or she] cannot afford an attorney one will be appointed for him [or her] prior to any questioning if he [or she] so desires." (Id. at p. 479.) "Statements elicited in violation of this rule are generally inadmissible in a criminal trial. [Citations.]" (People v. Mayfield (1997) 14 Cal.4th 668, 732.)
"In applying Miranda, . . . one normally begins by asking whether custodial interrogation has taken place. `The phrase "custodial interrogation" is crucial. The adjective [custodial] encompasses any situation in which "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." [Citation.] The noun [interrogation] "refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect." [Citation.] [Citation.]" (People v. Mayfield, supra, 14 Cal.4th at p. 732.)
"[T]he court must apply an objective test to resolve `the ultimate inquiry: `[was] there a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest. [Citation.]" (Thompson v. Keohane (1995) 516 U.S. 99, 112.) "[T]he only relevant inquiry is how a reasonable [person] in the suspects position would have understood his [or her] situation." (Berkemer v. McCarty (1984) 468 U.S. 420, 442.) "[W]e look at the interplay and combined effect of all the circumstances to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest. [Citation.]" (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162 (Aguilera).)
In determining whether there has been a custodial interrogation, "[c]ourts have identified a variety of relevant circumstances. Among them are whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the persons conduct indicated an awareness of such freedom; whether there were restrictions on the persons freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation. [Citations.]" (Aguilera, supra, 51 Cal.App.4th at p. 1162.)
On appeal, we accept the trial courts findings of historical fact if supported by substantial evidence but independently determine whether the interrogation was "custodial." (Aguilera, supra, 51 Cal.App.4th at pp. 1161-1162.)
In Green v. Superior Court (1985) 40 Cal.3d 126, the defendant was transported to the police station in an unmarked car and interviewed there. The interview questions were "detailed but not accusatory." (Id. at p.132.) Green had consented to both the interview and the wait, and no evidence showed that he knew the interview room was locked. (Id. at p. 131.) The investigating officers had also offered Green a ride back to his workplace if at any time he wished to return there. (Ibid.) The Supreme Court concluded that a reasonable person would not have felt "`in custody" during that interview. (Id. at p. 136.)
In People v. Spears (1991) 228 Cal.App.3d 1 (Spears), the defendant was first questioned in his home, then asked to come to the sheriffs station to identify an individuals photograph. (Id. at pp. 10-11.) Spears consented and he was transported to the station in a patrol car driven by plainclothes officers. (Id. at pp. 10, 21.) At the station, Spears was questioned for roughly 75 minutes, during which time he was repeatedly told he was free to leave; he never asked to go home. (Id. at pp. 22, 26.) One of the officers drove him home following the interview. (Id. at p. 12.)
While this Court agreed that "the questioning of [Spears] was extensive in nature and included many inquiries concerning his drug use and money habits, as well as one pointed question regarding his complicity in the crime," we did "not find that length or form of the questioning was such that a reasonable person would have believed that his freedom of movement had been impaired in any significant way." (Spears, supra, 228 Cal.App.3d at p. 25.) We did not believe that a 75-minute interrogation was "unduly prolonged," we noted that Spears was advised "several times during the course of the evening that he was, in fact, free to leave," and we remarked that Spears decision to assert his Fourth Amendment rights for the first time on appeal was "strong evidence that he believed his freedom of choice, including freedom to leave, had not been restricted." (Id. at p. 26.) Examining the totality of the circumstances, we held that "the record supports the trial courts finding that [Spears] was not in custody or otherwise deprived of his freedom of action in any significant way." (Ibid.)
Finally, in Aguilera, the police brought the defendant to the police station, where he was interrogated for about two hours. (Aguilera, supra, 51 Cal.App.4th at p. 1159.) The interrogating officer told Aguilera that he was not in custody, but also that he would only be brought home only "after he told them the truth." (Id. at p. 1163, italics in original.) The interrogation of Aguilera was "intense, persistent, aggressive, confrontational, accusatory, and, at times, threatening and intimidating." (Id. at p. 1165.) This court concluded that under such circumstances, "a reasonable person would have felt deprived of liberty in a `significant way and that the restraint was tantamount to being under arrest." (Ibid.)
Here, some of the circumstances listed in Aguilera, supra, 51 Cal.App.4th at page 1162 support defendants contention that he was in custody at the time of the interrogation: contact was initiated by the police rather than by defendant; defendant was already a suspect when brought in for questioning; the interview took place at the sheriffs department; and defendant was arrested at the end of the interview. Other factors, however, militate against a finding that defendant was in custody: defendant was interviewed primarily by one police officer, who asked short questions that elicited long responses from defendant; defendant voluntarily agreed to the interview; Detective Kaye made no representation that he had evidence to prove defendants guilt; the questions he posed to defendant were hardly confrontational or accusatory; Detective Kaye employed no interrogation techniques beyond simple conversation; defendant was provided with a drink and opportunity to use the restroom; and, importantly, defendant was repeatedly told that he was not under arrest and that he was free to leave.
Defendant contends that he was effectively taken into custody as soon as he was frisked and transported in the cage of the Salinas Police officers patrol car. However, defendant was invited to the interview at the sheriffs office and personally consented. Sergeant Bryant could not testify with certainty that defendant was unable to exit the car. Moreover, the patrol car was operated not by sheriffs department personnel but by the Salinas Police Department, which was not otherwise involved in the questioning of defendant or the statements he produced for Detective Kaye.
In Aguilera, we "acknowledge[d] that `[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. [Citation.]" (Aguilera, supra, 51 Cal.App.4th at p. 1165.)
The cases described above (Green, Spears, and Aguilera) suggest that defendants interview was not custodial. In each of those cases, the police transported the defendant to the police station and the interview took place at a police station. However, those factors were not determinative; instead, the analysis of whether the interview was custodial focused primarily on the circumstances of the interview itself. Here, defendant was interviewed in a room with an open door, provided with writing materials and drinks, permitted to use the restroom as he needed, and reminded on three separate occasions that he was free to leave if he chose. Throughout the interview, defendant gave no indication that he found Detective Kayes questions inappropriate, nor did he ever express an unwillingness to answer them. Defendants statements show no evidence of discomfort or a coercive atmosphere; indeed, when offered the opportunity to leave the interview, defendant declined, stating: "No, it aint like that, I want it done."
We find that Green, Spears, and Aguilera support the Peoples position and the trial courts determination that defendants interview was not custodial. However, even if we were to find support for defendants contention that he was in custody during the interview, we would conclude that any error in admitting defendants statements was harmless. The erroneous admission of statements obtained in violation of Miranda does not require reversal if the error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see Arizona v. Fulminante (1991) 499 U.S. 279; People v. Cahill (1993) 5 Cal.4th 478, 509-510.)
Here, defendants statements were not "the most compelling evidence of his guilt." (Compare Aguilera, supra, 51 Cal.App.4th at p. 1166.) First, in his statements to the sheriffs officers, defendant never admitted committing a lewd act with Jane Doe 1 (count 3). Rather, the factual premise for that offense was established by the testimony of Jane Doe 1 and Leora. In addition, defendant made an implied admission to Leora: "`Theres no evidence. Theres no semen." Defendant also told his friend Glen Wright that he wanted to sleep with Jane Doe 1.
Second, although defendant did admit sharing drugs and alcohol with Jane Doe 1, other evidence proved those two offenses beyond a reasonable doubt (count 1, furnishing drugs to a minor, and count 4, furnishing alcohol to a minor). Specifically, both Jane Doe 1 and Jane Doe 2 testified that defendant provided Jane Doe 1 with drugs and alcohol on multiple occasions; their testimony was corroborated by Glen Wright, who testified that both Jane Doe 1 and Jane Doe 2 had used drugs with defendant and himself on various occasions.
Third, in his interview, defendant never admitted furnishing drugs to Jane Doe 2 (count 2, furnishing drugs to a minor). Defendant admitted using drugs in the presence of Jane Doe 2, but he claimed that his friend Butch had provided any drugs Jane Doe 2 may have used. Butch testified that Jane Doe 2 used the drugs that he provided, but he also testified that defendant gave Jane Doe 2 drugs on other occasions and may have provided some of the drugs that night. The trial court clearly resolved any credibility contest in favor of Jane Doe 2, who testified that defendant gave her crack cocaine to smoke.
After reviewing the record and the relevant law, we conclude that the facts here support the trial courts determination that defendant was not in custody for Miranda purposes. We further conclude that defendants statements were "`unimportant in relation to the prosecutions other evidence" (Aguilera, supra, 51 Cal.App.4th at p. 1167) and that therefore, any error in admitting defendants statements was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
DISPOSITION
The judgment is affirmed.
I CONCUR IN THE JUDGMENT ONLY:
RUSHING, P.J.
I CONCUR:
PREMO, J. --------------- Notes: Counts 1, 3, and 4 pertained to defendants conduct with Jane Doe 1, and count 2 pertained to defendants conduct with Jane Doe 2.