Opinion
Rehearing Granted Nov. 18, 1991.
Previously published at 235 Cal.App.3d 342
Kyle Gee (under appointment of Court of Appeal, First District Appellate Project), Oakland, for defendant and appellant.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Ronald E. Niver, Supv. Deputy Atty. Gen., Bruce Ortega, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.
STEIN, Associate Justice.
Ronald Wayne Goodwin was convicted of first degree murder (Pen.Code, § 187) and residential burglary (Pen.Code, § 459). The jury also found true the allegation that he personally used a firearm with respect to both crimes (Pen.Code, § 12022.5) and the special circumstance allegation that he committed the murder while engaged in the commission of, or in immediate flight after having committed, first degree burglary. (Pen.Code, § 190.2, subd. (a)(17).) Appellant was sentenced to the upper term of six-years on the burglary conviction and a consecutive term of life imprisonment without possibility of parole on the murder conviction. The court added a consecutive two-year term for each personal use of a firearm enhancement, but stayed the enhancement on the murder conviction pursuant to Penal Code section 654.
The sole issue on appeal is whether the trial court erred in denying his motion to suppress a series of statements he made to the police.
FACTS
The October 6th Burglary and Homicide
On October 6, 1987, at approximately 4 a.m., Rita Morelli, the victim's wife, was in bed when she heard her husband, who was in the kitchen, say, "What do you want?" She then heard a shot and a thud. Her husband was killed by a single gunshot to the head, fired at short range. The police found a small flashlight, some coins, Mrs. Morelli's purse, and Mr. Morelli's pants in the garage. They also found, in the driveway and along the street, a garage door opener, some more coins, and some pantyhose. These items, along with two wristwatches, a set of cufflinks, and a large amount of money Mr. Morelli kept in his pants, had been taken from the Morellis' residence. The police also found a pair of footprints in the garage made by "Pro Wings"-style tennis shoes.
The Interrogation
Appellant was arrested on another offense the morning of October 7, 1987. The arresting officer noticed that appellant was wearing Pro Wings tennis shoes and turned them over to the sergeant investigating the homicide. That sergeant then took appellant into an interrogation room and informed appellant that he was under arrest for robbery and auto theft. Appellant was fully advised of, and waived, his Miranda rights.
The interrogation initially focused on the robbery. After a break, the sergeant asked appellant about a gun that had been found in his car. Then, without disclosing where it had been found, the sergeant asked appellant about the small white flashlight that had been found at the Morelli residence. Appellant initially responded that he did not remember having a flashlight like that. He then said, "I don't want to talk any more, I want to go to sleep. I just want to go to sleep and get this taken care of and not be bothered. Just go to sleep."
The sergeant then informed appellant that he was investigating a shooting and a burglary that had occurred the prior day and asked what appellant could tell him about it. Appellant said he knew nothing about it. The sergeant then told appellant that an expert had identified the footprints in the garage as matching appellant's shoes. Appellant said, "I don't see how they could be mine."
The sergeant then asked whether the gun that had been found in appellant's car was the gun that shot Mr. Morelli. First, appellant said "he didn't know what I was talking about." Then, he turned his head to the wall and said, "I think I should call an attorney. All I want to do is go to the county and face this thing I got going now and go to sleep."
The sergeant told appellant that if he wanted an attorney that was "his choice. And then I confronted him with some evidence and statements." Specifically, he told appellant, "I'm not going to shit you, the man died. You know if that's the gun, you know if that's your flashlight, we know these are your footprints, at sometime even if you were wearing gloves you touched the flashlight and your fingerprints will be on it. You know if you did it or not. We know you did it. The way it looks now is that this was an intentional shooting. The person who did it will be looked at like some kind of an animal. This is the last chance you will have to talk to us about this to get your side of the story. It may have been accidental but only you can tell us what happened. This could be a gas chamber case. This is serious. Not a simple burglary or stolen property case. We know accidents happen. From your background we know you are not a violent person, but that's the way it would be looked at."
After a three or four minute silence, the sergeant asked, "if the gun in the car was going to be the gun." With tears in his eyes, appellant nodded yes three times and then proceeded to make "admissions that he had done it, that it was an accident, that he didn't know that the man had been shot. It was not intentional." The sergeant asked if appellant would make a recorded statement to the district attorney and appellant agreed.
While waiting for the district attorney, appellant continued to provide details about the burglary and homicide. The sergeant asked appellant "what he meant when he said he wanted to talk to an attorney." He asked whether appellant "actually had wanted to consult with a lawyer or did he say that just because he knew he had done the shooting and wanted to go to jail and get away from talking about it." According to the sergeant, appellant replied that "he wasn't actually asking for an attorney, just that he wanted to go to the jail. He said he didn't know what to do, but he wanted to tell his side of the story."
When the district attorney arrived, appellant was advised of and waived his Miranda rights a second time. He then gave a detailed recorded statement in which he admitted the burglary and that he shot Mr. Morelli while trying to escape, but continued to describe the shooting as accidental. The next evening, while still in custody, appellant, after being re-Mirandized, gave another long statement along the same lines as the first recorded statement.
The Trial
Although appellant did not testify at the trial of the felony-murder charge, all of his statements were admitted. In addition, the People presented expert testimony that the footprints in the garage matched appellant's. They also offered evidence that cufflinks belonging to Mr. Morelli were found in a hotel room near the Morelli residence registered under the name Ron Goodwin. The People further offered evidence that a gun was found in a search of a car that Goodwin admitted belonged to him. An expert testified that this gun was the murder weapon.
In the trial on the special circumstance allegation appellant testified, in accordance with his statements to the police, that the shooting was accidental. The People did not offer any new evidence and instead relied primarily on appellant's own description of the shooting to establish that the killing was intentional.
ANALYSIS
Appellant contends that his statements to the police should have been suppressed because: (1) his statement, "I don't want to talk anymore," was an invocation of his Fifth Amendment right to remain silent which the police ignored (see Michigan v. Mosely (1975) 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313); (2) his statement, "I think I should call an attorney," was an unequivocal assertion of his Fifth Amendment right to counsel (see, e.g., Edwards v. Arizona (1981) 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378; Minnick v. Mississippi (1990) 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489; McNeil v. Wisconsin (1991) 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158); and (3) his statements were involuntary because he had been "threatened" with the "gas-chamber" and impliedly promised leniency if he confessed to the shooting and described it as accidental (see, e.g., People v. Thompson (1990) 50 Cal.3d 134, 166, 266 Cal.Rptr. 309, 785 P.2d 857).
The dispositive question in this case is whether appellant invoked his Fifth Amendment right to counsel. If he did, none of his subsequent statements to the police should have been admitted. (See, e.g., Edwards v. Arizona, supra, 451 U.S. at pp. 484-485, 101 S.Ct. at pp. 1884-1885; Minnick v. Mississippi, supra, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489; McNeil v. Wisconsin, supra, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158.)
The United States Supreme Court recently explained the absolute bar on police-initiated interrogation absent the presence of counsel, once the Fifth Amendment right to counsel is invoked, as follows: "In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), we established a second layer of prophylaxis for the Miranda right to counsel: once a suspect asserts the right, not only must the current interrogation cease, but he may not be approached for further interrogation 'until counsel has been made available to him,' 451 U.S., at 484-485, 101 S.Ct., at 1884-1885--which means, we have most recently held, that counsel must be present, Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990). If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect's statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. This is 'designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.' Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 1180, 108 L.Ed.2d 293 (1990). The Edwards rule, moreover, is not offense-specific: once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present. Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988)." (McNeil v. Wisconsin, supra, 111 S.Ct. at p. 2208, emphasis in original.) The trial court found appellant's statement, "I think I should call an attorney," ambiguous. Although this court must accept the trial court's resolution of disputed facts and inferences and its evaluations of credibility, if they are substantially supported, we must "independently determine from the undisputed facts, and those properly found by the trial court" whether appellant invoked his right to counsel. (People v. Boyer (1989) 48 Cal.3d 247, 263, 256 Cal.Rptr. 96, 768 P.2d 610; see also People v. Jennings (1988) 46 Cal.3d 963, 979, 251 Cal.Rptr. 278, 760 P.2d 475.)
It explained its conclusion as follows: "If you read it in a certain way, it can sound like a question by the defendant. I think his later statement [i.e., the unrecorded statement agreeing with the sergeant that appellant had not actually wanted an attorney but had only wanted to 'go to the jail' and get it over with] clarifies what he was actually saying, that he was not actually asking for an attorney."
The requirement that this court independently determine whether appellant invoked his right to counsel is particularly appropriate in this case because there was no conflicting evidence regarding the exchange that took place between the sergeant and appellant, and there is no recording of that part of the interview in which appellant claims to have invoked his right to counsel that would require an evaluation of inflection.
We fail to discern any ambiguity in the circumstances leading up to appellant's request for counsel or in the request itself. In Miranda, the court held that if a defendant "indicates in any manner " and at any stage of the process that he wishes to consult with an attorney before speaking, "the interrogation must cease." (Miranda v. Arizona (1966) 384 U.S. 436, 473-474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694, emphasis added; People v. Boyer, supra, 48 Cal.3d at p. 271, 256 Cal.Rptr. 96, 768 P.2d 610.) A suspect may invoke his right to silence by any words or conduct inconsistent with willingness to discuss the case freely and completely. (In re Joe R. (1980) 27 Cal.3d 496, 515, 165 Cal.Rptr. 837, 612 P.2d 927.) "To strictly limit the manner in which a suspect may assert the privilege, or to demand that it be invoked with unmistakable clarity (resolving any ambiguity against the defendant) would subvert Miranda 's prophylactic intent." (People v. Randall (1970) 1 Cal.3d 948, 955, 83 Cal.Rptr. 658, 464 P.2d 114.) Thus, for example, the courts have found invocations of the right to counsel where the accused says, "I don't know if I should have a lawyer here or what." (People v. Russo (1983) 148 Cal.App.3d 1172, 1176-1177, 196 Cal.Rptr. 466.) " 'Do you think we need an attorney?' " or " 'I guess we need a lawyer.' " (People v. Superior Court (Zolnay ) (1975) 15 Cal.3d 729, 735-736, 125 Cal.Rptr. 798, 542 P.2d 1390.) " 'Well, maybe I should talk to my attorney.' " (People v. Munoz (1978) 83 Cal.App.3d 993, 995, 148 Cal.Rptr. 165.) Or, " 'Tell me the truth, wouldn't it be best if I had an attorney with me?' " (People v. Hinds (1984) 154 Cal.App.3d 222, 234, 201 Cal.Rptr. 104.)
These cases illustrate that the interrogative form does not necessarily render the request for counsel ambiguous. Moreover, the sergeant himself demonstrated that he understood appellant's statement as a request for counsel because he responded, that's "his choice." He further indicated his own awareness of the consequences of appellant's invocation of the right to counsel by telling appellant that it was his "last chance" to tell his side of the story, and making a last-ditch effort to induce appellant to talk by confronting him with the seriousness of the offense. An additional factor supporting our conclusion is that, before making the statement, "I think I should call an attorney," appellant had stated "I don't want to talk anymore" when the focus of the interrogation appeared to switch from the robbery to the murder. Whether or not this was an attempt to invoke his right to remain silent, it was apparent that appellant was beginning to demonstrate some unwillingness to continue the interrogation once the interrogation began to focus on the murder. His reluctance finally culminated in the assertion: "I think I should call an attorney."
The sergeant's statements were clearly designed to elicit an incriminating response from appellant. There is no dispute that his statements were a form of interrogation under Rhode Island v. Innis (1980) 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297; see also People v. Boyer, supra, 48 Cal.3d at pp. 273-275, 256 Cal.Rptr. 96, 768 P.2d 610. Moreover, it is precisely this type of "badgering" of the defendant in an effort to persuade him to waive his previously invoked Miranda rights that the bright-line rule established under Edwards is designed to prevent. (See Michigan v. Harvey, supra, 494 U.S. at p. 350, 110 S.Ct. at p. 1180.)
Having concluded that appellant unambiguously invoked his right to counsel, we reject respondent's efforts to create an ambiguity based on appellant's responses to subsequent interrogation. Appellant's later agreement with the sergeant that he hadn't really intended to invoke the right to counsel but simply wanted to stop talking and "go to jail" and "go to sleep" was made after all interrogation should have ceased. (See Smith v. Illinois (1984) 469 U.S. 91, 97-98, 105 S.Ct. 490, 493-494, 83 L.Ed.2d 488.) In Smith, the court held that where "nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease" (id. at p. 98, 105 S.Ct. at p. 494), and subsequent statements may not be considered in determining whether the right to counsel was invoked. The reason for rejecting the use of such after-the-fact characterizations of appellant's invocation of the right to counsel when the initial invocation is not ambiguous was explained in Smith v. Illinois, supra, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488, as follows: " 'No authority, and no logic, permits the interrogator to proceed ... on his own terms and as if the defendant had requested nothing, in the hope that the defendant might be induced to say something casting retrospective doubt on his initial statement that he wished to speak through an attorney or not at all.' " (Smith, supra, at p. 99, 105 S.Ct. at p. 494.)
Some California courts have adopted the view that, if the invocation of Miranda rights is ambiguous, then the police are at least permitted to continue talking with the defendant for the limited purpose of clarifying whether the appellant is invoking his rights. (See, e.g., People v. Carey (1986) 183 Cal.App.3d 99, 103, 227 Cal.Rptr. 813; People v. Russo (1983) 148 Cal.App.3d 1172, 1177, 196 Cal.Rptr. 466; People v. Turnage (1975) 45 Cal.App.3d 201, 211, 119 Cal.Rptr. 237.) These decisions, however, are of no help even if we were persuaded that appellant's invocation of his Miranda rights was equivocal, because the interrogation immediately following appellant's statement, "I think I should call an attorney," was not directed towards clarifying whether he was invoking his right to counsel. To the contrary, the sergeant responded by applying maximum pressure to induce appellant to make incriminating statements despite his invocation of his right to counsel.
For this same reason we see no analogy between the facts of this case and those of People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 212 Cal.Rptr. 605, upon which respondent relies. In Bestelmeyer the defendant expressed confusion about the meaning of the Miranda rights, and the police engaged in a polite and low-key discussion with the defendant, attempting to explain those rights to him. The defendant's statements in Bestelmeyer were clearly tentative, and nothing more than thinking aloud, as he sought further explanation of his rights. By contrast, in this case appellant expressed no confusion over his Miranda rights. Instead of seeking clarification when appellant attempted to reinvoke those rights, the sergeant escalated the pressure of the interrogation with his "gas-chamber" speech.
We therefore conclude that all of appellant's statements subsequent to his invocation of the right to counsel should have been suppressed because they were obtained by police-initiated interrogation without the presence of counsel, after appellant invoked his Fifth Amendment right to counsel. (See, e.g., Edwards v. Arizona, supra, 451 U.S. at pp. 484-485, 101 S.Ct. at pp. 1884-1885; Minnick v. Mississippi, supra, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489; McNeil v. Wisconsin, supra, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158.)
We must now determine if the error in admitting these statement is reversible per se, People v. McClary (1977) 20 Cal.3d 218, 230, 142 Cal.Rptr. 163, 571 P.2d 620, or whether the error is reversible only under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. In Arizona v. Fulminante (1991) 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302, the United States Supreme Court held that admission of a coerced confession does not require automatic reversal and that, instead, the court must determine whether the error is harmless beyond a reasonable doubt under Chapman. In reaching this conclusion the court explained that since its landmark decision in Chapman, it had adopted "the general rule that a constitutional error does not automatically require reversal of a conviction" and listed the "wide range of errors" it had since recognized could be harmless. (Id. at p. ----, 111 S.Ct. at p. 1263.) The court explained that the unifying principle behind the line of decisions applying the Chapman standard is that the constitutional errors were "trial errors" which "occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." (Id. at p. ----, 111 S.Ct. at p. 1264.) By contrast, the court held that constitutional errors that constitute "structural defects," such as "total deprivation of the right to counsel at trial" (see Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799) or a biased judge (see Tumey v. Ohio (1927) 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749) affect the "entire conduct of the trial from beginning to end" and "defy analysis by 'harmless-error' standards." (Id. 499 U.S. at p. ----, 111 S.Ct. at pp. 1264-1265.) The court explained that "[t]he evidentiary impact of an involuntary confession, and its effect upon the composition of the record, is indistinguishable from that of a confession obtained in violation of the Sixth Amendment--of evidence seized in violation of the Fourth Amendment--or of a prosecutor's improper comment on a defendant's silence at trial in violation of the Fifth Amendment," all of which are errors reversible under the Chapman standard. (Id. at p. ----, 111 S.Ct. at p. 1265.)
Our own Supreme Court presaged the recognition that the Chapman standard should apply to this type of error in People v. Boyer, supra, 48 Cal.3d at pp. 279-280, fn. 23, 256 Cal.Rptr. 96, 768 P.2d 610. The court stated: "California has followed the rule that 'the improper introduction of a confession [i.e., a declaration of defendant's intentional participation in a criminal act] is considered reversible per se [citations], whereas wrongful introduction of an admission [i.e., the recital of facts tending to establish guilt when considered with the remaining evidence in the case] is deemed prejudicial unless the People show beyond a reasonable doubt that the error complained of did not contribute to the verdict. [Citations]....' (People v. McClary, supra, 20 Cal.3d 218, 230, [142 Cal.Rptr. 163, 571 P.2d 620] italics in original.) This California distinction, never expressly divorced from federal law, is doubtful in light of Rose v. Clark (1986) 478 U.S. 570, [106 S.Ct. 3101, 92 L.Ed.2d 460] [citations]. Rose emphasized that even federal constitutional errors are not subject to a per se reversal standard unless they render the entire trial 'fundamentally unfair.' The court acknowledged that a per se standard applies to introduction of a coerced confession,[ ] complete denial of the right to counsel, or adjudication by a biased judge. However, 'if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis....' [Citations.] Under this reasoning, if a wrongfully introduced confession is invalid only for Fourth Amendment or prophylactic Miranda reasons, harmless-error analysis may be appropriate." (People v. Boyer, supra, 48 Cal.3d at pp. 279-280, fn. 23, 256 Cal.Rptr. 96, 768 P.2d 610, original emphasis.)
Boyer was decided before the decision in Arizona v. Fulminante, which, as we have explained, clarifies that the per se standard does not apply even to a coerced confession. A fortiori, it does not apply to a confession that is presumed involuntary for "prophylactic Miranda reasons."
Appellant contends that we are bound by prior California Supreme Court decisions holding that the erroneous introduction of a confession obtained in violation of Miranda is reversible per se. (People v. Porter (1990) 221 Cal.App.3d 1213, 270 Cal.Rptr. 773.) In Porter, which was decided before Arizona v. Fulminante, supra, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302, the court held that it was bound by prior decision of the California Supreme Court in People v. McClary, supra, 20 Cal.3d at p. 230, 142 Cal.Rptr. 163, 571 P.2d 620, to apply the reversible per se standard when a confession, obtained after the police ignored the defendant's attempt to halt an interrogation by invoking his right to remain silent, was erroneously admitted. (Porter, supra, 221 Cal.App.3d at pp. 1220-1223, 270 Cal.Rptr. 773.)
If we were to adopt appellant's position, we would be applying a standard for reversal based on federal constitutional error that is in clear conflict with a decision of the United States Supreme Court.
Appellant's argument is premised on the incorrect assumption that California has adopted an independent and more stringent standard, based on the state Constitution, for determining whether a federal constitutional error requires reversal of a criminal conviction. (See People v. Boyer, supra, 48 Cal.3d at pp. 279-280, fn 23, 256 Cal.Rptr. 96, 768 P.2d 610; but see People v. Asay (1990) 224 Cal.App.3d 608, 612-615, 273 Cal.Rptr. 737.)
We do not question the power of our Supreme Court to declare more stringent standards for the protection of state constitutional rights. We hold only that the decisions of our Supreme Court have not articulated any such separate standard for determining when a federal constitutional error requires reversal.
The decisions of the United States Supreme Court are binding on this court and our California Supreme Court on issues of federal constitutional law. (See, e.g., People v. Greenwood (1986) 182 Cal.App.3d 729, 734, 227 Cal.Rptr. 539, revd. on other grounds in California v. Greenwood (1988) 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30; People v. Rooney (1985) 175 Cal.App.3d 634, 644, 221 Cal.Rptr. 49.) In this case, not only has our state Supreme Court never expressly based the application of the per se standard for reversal on the state Constitution, it has clearly stated that its decisions on the subject have never been "expressly divorced from federal law." (People v. Boyer, supra, 48 Cal.3d at p. 280, fn. 23, 256 Cal.Rptr. 96, 768 P.2d 610.) We therefore are not bound under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937, to follow decisions of our California Supreme Court interpreting federal law that are now clearly in conflict with the most recent pronouncements of the United States Supreme Court.
We now turn to the question whether, under Chapman, the erroneous admission of appellant's statements was harmless beyond a reasonable doubt. The Attorney General concedes that admission of these statements at the trial on the special circumstance allegation cannot be deemed harmless beyond a reasonable doubt. The prosecutor relied almost exclusively upon appellant's statements describing the details of the shooting to support the inference of "intent to kill" which, at the time of trial was a necessary element of the Penal Code section 190.2, subdivision (a)(17), felony-murder special circumstance. Although there was some independent physical evidence that supports the inference that the shooting was not accidental as appellant claimed, we cannot say beyond a reasonable doubt that the admission of appellant's statements did not contribute to the finding that the special circumstance finding was true. There is no question that appellant's own statements provided many of the details supporting the inference of an "intent to kill" in this case.
The "intent to kill" requirement imposed by Carlos v. Superior Court (1983) 35 Cal.3d 131, 138-154, 197 Cal.Rptr. 79, 672 P.2d 862, was disapproved in People v. Anderson (1987) 43 Cal.3d 1104, 1138-1147, 240 Cal.Rptr. 585, 742 P.2d 1306. It was agreed at trial that the instant crimes were committed during the "window" period between Carlos and Anderson.
At the special circumstance portion of this trial, appellant testified in support of his defense that the shooting was accidental. His testimony was for the most part consistent with statements that he made to the police. We cannot, however, rely on his testimony as an independent basis for supporting the special-circumstance finding because it cannot be shown beyond a reasonable doubt that he would have testified at all absent the previous introduction of his illegally obtained statements. (See, e.g., People v. Boyer, supra, 48 Cal.3d at p. 280, 256 Cal.Rptr. 96, 768 P.2d 610 [court cannot assume the defendant would have testified conceding his identity as the killer if the illegally obtained statements had not been admitted]; People v. Spencer (1967) 66 Cal.2d 158, 163-169, 57 Cal.Rptr. 163, 424 P.2d 715; Harrison v. United States (1968) 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047.)
The independent physical evidence included the fact that the murder weapon did not have a "hair trigger"; the close range at which the victim was shot; and that the angle of the wound suggested that the victim might have been ducking.
The more difficult question is whether the admission of appellant's statements in the felony murder trial also constitutes reversible error under Chapman. The Attorney General argues that reversal is not required because: "Appellant's footprints were found in the Morelli garage. The gun which killed Mr. Morelli was found in appellant's car. Some of the stolen property was found in appellant's possession."
Appellant contends that many of the connections between appellant and the evidence cited by the Attorney General were provided by appellant's own statements. For example, he points out that the car in which the stolen property was found was located in a city parking lot and was registered to persons named Margaret and Vic Ritter. He contends that the only connection between appellant and the car is that appellant admitted the car belonged to him. It is unclear from the record, however, whether this particular admission was made before or after appellant invoked his right to counsel. Obviously only those statements made after appellant invoked his right to counsel must be suppressed. However, appellant's argument does illustrate the more general proposition that, in the absence of appellant's statements, the defense strategy might have been quite different because appellant might have challenged more vigorously the significance of the footprint identification and some of the other physical evidence linking him to the crime.
. The evidence cited by the Attorney General, although strong, is circumstantial. In People v. Boyer, supra, 48 Cal.3d at p. 280, 256 Cal.Rptr. 96, 768 P.2d 610, the court found reversible error under the Chapman standard even though, once the illegally obtained statements were excluded, there was strong circumstantial evidence against the defendant. We think the circumstantial evidence in this case, once appellant's illegally obtained statements are excluded, is no more compelling than the evidence in Boyer.
In Boyer, the admissible evidence included eyewitness testimony that the defendant had been in the victims' residence at the time the homicides occurred, and had seen defendant emerge from the house with a knife, a stab wound, and a suspicious story about how it had occurred. As the witness drove the defendant away from the scene of the crime, the defendant rummaged through several wallets and threw them out the window. The defendant then told his girlfriend a different story about how he was wounded, and told her he had done something wrong. His girlfriend burned a jacket defendant had been wearing, and a bloodstained knife and pants with blood similar to the victim's was found in defendant's residence. A wallet belonging to the victims was found in a location described by the defendant. The court nonetheless concluded that it could not say beyond a reasonable doubt that the jurors would have convicted the defendant of the crimes had they not heard his taped statements. (Id.)
Moreover, the denial of appellant's motion to suppress the illegally obtained statements influenced the entire defense strategy in this case. Knowing that appellant's statements would be introduced, defense counsel made a strategic choice to rely exclusively on the claim that the shooting was accidental. In the felony murder phase of the trial appellant barely offered a defense. Defense counsel's closing statement did not even ask the jury to return a "not guilty" verdict. Instead, appellant asked the jury to believe his statements to the police, which virtually admitted all facts necessary to find a felony murder, and urged that if they believed his statements at all, to believe them in their entirety. In other words, rather than seriously defending the felony-murder charge, he placed all his bets on the jury believing that he did not have "intent to kill" in the special circumstance phase. The People rested their special-circumstance case on the evidence introduced in the felony-murder phase. Appellant knew that the People's theory was that the details appellant provided in his statements demonstrated that the shooting was intentional. He apparently choose to testify in order to convince the jury of the credibility of his version. Of, course, having already given the details to the police, appellant could not vary from that version without being impeached by his prior statements. It is very likely, however, that absent the admission of appellant's statements, appellant would have chosen not to testify at all, and his defense strategy might have been entirely different. We therefore cannot find the erroneous admission of appellant's statements to be harmless beyond a reasonable doubt.
The irony is that a retrial is of questionable benefit to appellant because it may be that appellant's best defense is that the shooting was accidental, yet it will be extremely difficult on remand for appellant to develop that defense without testifying. If his testimony does vary from the statements illegally obtained, he may be impeached. (Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1.)
CONCLUSION
The judgment is reversed.
NEWSOM, Acting P.J., and DOSSEE, J., concur.