Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F02671033-9. Gary D. Hoff, Judge.
Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Defendant Ray Dell Sims was convicted of the 1974 first degree murder of 15-year-old Elizabeth Ortega. He appeals, claiming it was prejudicial error for the trial court to instruct the jury with the standards for evaluating circumstantial evidence of culpable mental states (CALCRIM No. 225) without also instructing the jury concerning the evaluation of circumstantial evidence in general (CALCRIM No. 224). In addition, he asserts the trial court erred when it denied his request for a continuance of the motion for new trial and when it found that his pretrial statement was voluntary. We affirm.
FACTS
In 1974, 15-year-old Elizabeth Ortega lived with her mother and four siblings. On November 8, 1974, her mother, Ramona Soriano, contacted police when Ortega did not return home from school. On November 9, 1974, Ortega’s body was found on the bank of Avocado Lake. She was fully clothed and had marks on her neck. At the time of the murder defendant lived a block away from Ortega’s home.
It was determined that Ortega died of ligature strangulation. Ligature strangulation occurs when something is tightly wrapped around the neck, for example a cord, rope, or cloth. There was also evidence of an attempt at manual strangulation. In addition, there was a vaginal injury of recent origin.
Ortega’s clothing was removed and stored. In 1991, Deputy Sheriff Chris Curtice and criminalist Allen Boudreau decided to look into the Ortega case because there had been advances in science, particularly in the area of deoxyribonucleic acid (DNA) technology. Blood samples were gathered from Ortega’s biological parents and from three suspects, including a blood sample taken from defendant.
Preliminary testing was done in Fresno, and in 1996 Ortega’s clothing (including her blue panties) and the blood samples were sent to Cellmark Diagnostics (Cellmark), an out-of-state laboratory, for further testing.
Melissa Staples tested the clothing she received from Fresno in the Ortega case and compared the results to the blood samples she received. Staples found useable samples from Ortega’s panties, including sperm and non-sperm DNA. Defendant could not be excluded as the originator of the sperm. The population frequency for how often one would expect to see the DNA profile from defendant and the sperm found on the panties was one in 1.1 billion Caucasian people, one in 2.4 million in the African population (defendant is African-American), and 1 in 11 million individuals in the Hispanic population. One contributor of the non-sperm DNA on the panties was the victim. There was another contributor to the non-sperm DNA. The non-sperm DNA that did not belong to the victim and was found on the panties could have been an artifact or could have been DNA from another person. Defendant could not be excluded as the contributor of non-sperm DNA found on the panties. The sperm DNA did not match any of the samples from the other suspects.
One of the other suspects was Rudy Soriano, the father of Ortega’s four half-siblings. Ortega’s mother had kicked Soriano out of the home two months prior to Ortega’s murder after Ortega reported that Rudy had molested her.
After defendant was confirmed as a match for the sperm sample found on Ortega’s panties, Curtice interviewed defendant in November of 2001. Defendant agreed to speak to Curtice. Defendant was confronted with the DNA evidence numerous times, yet he did not admit committing the crime. Defendant told Curtice he did not know of Avocado Lake and did not know Ortega. When asked what he would do if his attorney ran DNA tests and the tests came back identifying him, defendant replied, “whatever it be, it would be.” Defendant was told that the testing would come back the same no matter how many times the material was tested. To this defendant stated, “Then I’ll pay.” He said if it came up the same then he would have nothing to complain about. Defendant said he was a fisherman but had never been to Avocado Lake. Curtice testified that Avocado Lake is a common fishing location. Defendant never admitted any involvement in the crime.
Defendant’s former wife, Carolyn Turner, testified that she was married to defendant at the time of Ortega’s murder. On more than one occasion, he forced her to have sex with him. On one occasion, he choked her during forced sex. He continued to choke her until she feigned unconsciousness.
Defense
Ann Hernandez, a classmate and best friend of Ortega at the time of her death, testified that when she was interviewed after the murder of Ortega she talked to detectives about Mark Masingale. She said that Masingale liked Ortega and would try to talk with her. One time, Hernandez accidently brushed up against Masingale. He shoved her against a wall and grabbed her by her neck. Ortega came running and helped Hernandez get away from Masingale. Hernandez claimed that Masingale bragged that he had killed her. He stated that he strangled her, raped her, and put her clothes on backwards. On cross-examination, it was established that Hernandez had a faulty memory. She did recall that Masingale was known as a chronic liar and that the circumstances of Ortega’s murder were common knowledge.
A private forensic DNA consultant, Norah Rudin, testified for the defense. She agreed that the sperm on the panties matched defendant’s DNA. Her disagreement with the prosecution’s expert was regarding the non-sperm DNA found on the panties. It was her opinion that an individual other than defendant or Ortega contributed to the non-sperm DNA recovered from the panties.
DISCUSSION
I. Failure to Instruct with CALCRIM No. 224
Defendant contends the trial court prejudicially erred when it failed to instruct the jury pursuant to CALCRIM No. 224, the general instruction on circumstantial evidence, and instead instructed with CALCRIM No. 225, which focuses on circumstantial evidence as it relates to intent or mental state.
Respondent concedes the trial court erred in failing to instruct the jury pursuant to CALCRIM No. 224, but argues the error was harmless in light of the evidence, which left no room for any substantial dispute that defendant killed Ortega.
CALCRIM No. 224 must be given sua sponte when the prosecution substantially relies on circumstantial evidence or direct and circumstantial evidence to prove guilt. (People v. Wiley (1976) 18 Cal.3d 162, 174.) The error in failing to give the instruction is not a constitutional error unless the jury is also not instructed on reasonable doubt. (People v. Smith (2008) 168 Cal.App.4th 7, 18-19.) We must determine whether there is a reasonable probability the jury would have found defendant did not kill Ortega if it had been given the general circumstantial evidence instruction. (People v. Rogers (2006) 39 Cal.4th 826, 886.)
The precursor to CALCRIM No. 224 was CALJIC No. 2.01.
In addition to arguing error in the failure to give CALCRIM No. 224, defendant argues that the giving of CALCRIM No. 225 created a “negative pregnant” that implied that the rule regarding ambiguities, when there is more than one reasonable conclusion from circumstantial evidence, applies only when the jury is considering the defendant’s mental state.
The jury was properly instructed on reasonable doubt. (CALCRIM No. 221.) The jury was also given a definition of direct and circumstantial evidence. (CALCRIM No. 223.)
The jury was then instructed with CALCRIM No. 225 as follows: “Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge including intent and mental state and acts necessary to a conviction and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.
“The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent and/or mental state. The instruction for the crime explains the intent and/or the mental state required.
“An intent and/or mental state may be proved by circumstantial evidence. Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent and/or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent and/or mental state. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent and/or mental state and the other reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent or mental state was not proved by the circumstantial evidence. However, when considering circumstantial evidence you must accept only reasonable conclusions and reject any that are unreasonable.”
Although CALCRIM No. 225 was focused on mental states, it contained general language also. The language instructed that both forms of evidence were acceptable to prove a fact, including intent and mental state, thus not limiting the instruction to proof of mental state. The jury was cautioned that it could not rely on a fact proved by circumstantial evidence unless the People have proved that fact beyond a reasonable doubt and that it must accept only reasonable conclusions from the circumstantial evidence. In addition, the instructions on reasonable doubt informed the jury that the evidence must prove defendant guilty beyond a reasonable doubt and unless that is done he is entitled to an acquittal. The pinpoint language in CALCRIM No. 225 regarding two or more reasonable conclusions, when considered as a whole with the entire instructions, did not require that the jury accept the reasonable conclusion regarding defendant’s identity as the murderer even if they came to an equally reasonable conclusion that he was not the murderer. If they came to a reasonable conclusion that defendant was not the murderer, then they would have been unable to convict defendant beyond a reasonable doubt. Defense counsel also informed the jury of this concept in his argument to the jury. Emphasizing proof beyond a reasonable doubt he stated, “[Y]ou can’t adopt the inference that points to Mr. Sims’ guilt if there exists a reasonable inference that somebody else’s DNA is on this young girl’s underwear.” The jury was sufficiently informed regarding how to treat circumstantial evidence.
Furthermore, the evidence supporting a finding that defendant was the killer was strong. Defendant denied knowing Ortega yet his DNA, in the form of sperm cells, was found in her panties. He lived one block away from Ortega. Around the time of Ortega’s murder he forced his wife to have sex with him and during the act he choked her until she feigned unconsciousness. When told that if the DNA is retested it would come back again identifying defendant as the originator, defendant replied, “Then I’ll pay.”
Considering the strength of the evidence and the instructions that were given to the jury, the trial court’s error in failing to instruct the jury pursuant to CALCRIM No. 224 was harmless.
II. Denial of Continuance
At the time of sentencing defense counsel asked for a continuance so he could submit points and authorities for a motion for new trial on the ground that the court erred when it failed to instruct the jury with CALCRIM No. 224. The trial court denied the motion for continuance, finding that the instructions as given substantially covered the issues relative to circumstantial evidence. The court also stated that defendant had preserved his right to appeal that particular issue notwithstanding the court’s denial of the motion to continue.
Defendant contends the trial court abused its discretion when it denied the motion for a continuance. Defendant acknowledges that the merits of this issue have been addressed in issue I above, but makes this argument in the event we decline to address issue I on the merits based on some irregularity that would preclude review.
Having decided on the merits that the trial court did not prejudicially err in failing to instruct the jury with CALCRIM No. 224, we deem moot the issue concerning the denial of the requested continuance.
III. Voluntary Statement
Defendant contends that his statements made when he was interviewed at San Quentin prison were involuntary because he was threatened by the prosecutor that he could seek the death penalty against defendant when in fact the death penalty was not available as punishment in 1974. Defendant argues that even though he disputed the prosecutor’s statements, even the most confident suspect would waver and doubt when a prosecutor tells him that he will seek the death penalty if the suspect does not speak now. Defendant claims that the totality of the circumstances demonstrates that his statements were involuntary. Defendant further argues that the use of his involuntary statements was prejudicial error.
On November 29, 2001, Deputy Sheriff Christian Curtice, Sergeant Toby Rien, and Deputy District Attorney John Skiles traveled to San Quentin prison to speak to defendant about several murders, including the murder of Elizabeth Ortega. On this date, defendant was serving an indeterminate life sentence for the first degree murder of Janet Herstein.
At the outset of the interview, Curtice informed defendant that after testing defendant’s blood it was determined that his DNA matched the DNA found on two separate murder victims. Curtice explained to defendant that they were now at the prison trying to come up with some mutually beneficial conclusion for everyone involved. Prior to further questioning, defendant waived his Miranda (Miranda v. Arizona (1966) 384 U.S. 436) rights.
Curtice pointed out to defendant that he was 66 years old and was doing a life term and obviously defendant could get a couple of more life terms if they go to trial on the cases. To this defendant replied, “That’s, that’s what we going to trial for... DNA, I’m gonna test it.” Defendant repeated they were going to trial.
At this time, Skiles interjected with the district attorney’s position. Skiles told defendant that there was no guarantee, but if defendant would plead he would be given life without the possibility of parole versus facing trial for capital murder.
Defendant responded to the district attorney, and the following discussion took place between the two:
“A. [Defendant] I got to go up on capital murder[?] That, that murder, that murder go too far back. That’s no capital murder period.
“S. [Skiles] I’m just telling you where the D.A.’S Office is coming from, sir.
“A. I’m, I’m, D.A. can’t, he ain’t break the law. I’m under, I’m under [indeterminate] sentence of seven to life. And you can not, and then I have no guilt.
“S. I’m not talking about the case you’re already in here for, sir.
“A. Uh, huh (affirmative).
“S. I’m talking about cases that we’re filing on you, I already have …
“A. It can’t be filed still go back … it still don’t make no difference.
“S. Do you understand they already have been filed and we’re here with warrants, right?
“A. Okay, issue your warrants.
“S. Okay.
“Q. Okay.
“S. Listen, I’m, I’m not trying, I certainly don’t wanna … you know, bump heads with you …
“A. Uh, huh (affirmative).
“S. … I just wanna make sure you understand why we’re here.
“A. We don’t have to bump heads, like I say, issue your warrants … and let me go to [trial] on it.”
The conversation continued between defendant and Curtice. Defendant denied any knowledge of the females who had been murdered and did not remember Ortega at all. Defendant was informed that Ortega died the same way as Herstein [the female whom defendant was already convicted of murdering]. Curtice explained to defendant that the semen on Ortega’s panties was identified as coming from defendant. Defendant replied that it should not come back to him because he did not know any of the females. Defendant was told that Ortega’s body was found at Avocado Lake. Defendant said he had never been to Avocado Lake. Defendant denied any knowledge regarding the other murder he was questioned about.
Curtice explained to defendant that law enforcement officials wanted to clear these cases. They could clear the cases by going to trial or they could discuss the options with defendant and come to some kind of decision. Defendant replied that he wanted to go to trial; he said he had no choice but to fight the cases and had nothing to lose one way or another. At this point, Skiles asked defendant what he thought the possible outcomes would be if he were found guilty. Defendant replied, “It’s probably gonna be here the rest of my life anyway, so it doesn’t make no difference.”
The following exchange then took place between defendant and Skiles:
“S. [Skiles] Do you think the only thing that can happen to you is a life sentence?
“A. [Defendant] Yes, exactly.
“S. Allow me to … explain that you’re wrong. What can happen is a death sentence.
“A. I can’t get a death penalty.
“S. Sir, I’m not here to lie to you.
“A. I’m not …
“S. I’m telling you …
“A. … if you look back at the crime in 19 … that’s, that’s in the ‘70’s. That’s the same law, there was no law for death penalty … that I got it on this one.
“S. Well, I’m the one that filed the complaint, sir and it’s …
“A. Well …
“S. … with special circumstances.
“A. … you can’t put a death row then.
“S.. Okay. I just wanna make sure we’re all on the same page.
“A. Uh, huh (affirmative).”
Curtice then asked defendant about his family and said that when Curtice and the others returned to Fresno the story would be all over the media and defendant would be considered a serial killer. Defendant was asked what effect this would have on his daughter, ex-wife, and brothers and sisters. Defendant said they had been through the media publicity before. Defendant acknowledged that the media attention would be bigger now but he was going to go to trial on the new accusations. He was not swayed that this might affect his family.
Curtice explained that the current offer from the district attorney might not be available once they return to Fresno. To this defendant replied, “I don’t want the offer to be there... it don’t make no difference to me or not. I still wanna go to [trial] on all of ‘em.”
The conversation continued with defendant insisting he wanted to go to trial on the matters and had nothing to lose. He continued to deny raping or even knowing the females he was accused of killing. Defendant reiterated that he had nothing to lose by going to trial because he did not believe he was ever going to get out of prison in any event.
Defendant sought to exclude the statement at trial. He claimed that his statement was involuntary because the district attorney threatened him with the death penalty. In addition, he argued the fact that the threat of the death penalty came from the district attorney made the threat even more coercive than if it came from a police officer.
Curtice and Skiles testified at the hearing. Curtice testified that the interview took less than an hour and that he did not discuss the death penalty with defendant. Curtice observed that when the district attorney discussed the death penalty with defendant, defendant would correct him.
Skiles testified that when he interviewed defendant it was Skiles’s belief that defendant would be eligible for the death penalty. He learned later that defendant could not be given the death penalty for a 1974 murder. It was Skiles’s testimony that defendant was adamant that the murders discussed in the interview would not result in the death penalty and that defendant was very aware of the law. It was Skiles’s opinion that his conversation with defendant about the death penalty did not have any effect on defendant.
The court found that the statements by the district attorney regarding the death penalty were not intentionally deceptive. The court found the statements were not coercive or illegal and in any event the death penalty statements had no coercive effect on defendant. The court concluded defendant’s statement was voluntary.
“On appeal, our role when reviewing the trial court’s determination that a confession was voluntary is similar to the standard applied in the Miranda context: we independently examine the record, but, to the extent the facts conflict, we accept the version favorable to the People if supported by substantial evidence.” (People v. Weaver (2001) 26 Cal.4th 876, 921.)
“Although at present the state’s burden is to prove the voluntariness of a confession by a preponderance of the evidence, defendant’s crimes occurred before the enactment of article I, section 28, subdivision (d) of the state Constitution, the so-called Truth in Evidence provision that was added to the state charter by passage of Proposition 8 in 1982. Accordingly, at defendant’s trial the state was required to show the confession was voluntary beyond a reasonable doubt.” (People v. Weaver, supra, 26 Cal.4th at p. 920.)
“‘It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied.’ [Citation.] Since threats of harsh penalty often contain an implicit promise of more lenient treatment, they are treated as promises of leniency.” (People v. Cahill (1994) 22 Cal.App.4th 296, 311.)
“The statement is involuntary only if the threat actually induces defendant to make the statement.” (People v. Lucas (1995) 12 Cal.4th 415, 442.) “An implied promise of leniency must be ‘a motivating cause of the confession.’ [Citation.]” (People v. Cahill, supra, 22 Cal.App.4th at p. 316.)
Defendant cites several cases for the proposition that misrepresentations of the law, particularly the applicability of the death penalty to a defendant, render statements made after the misrepresentations to be involuntary. We find the cases relied on by defendant to be dissimilar to what occurred here. We discuss some of those cases to illustrate our disagreement with defendant’s argument.
In People v. McClary (1977) 20 Cal.3d 218 the 16-year-old defendant was questioned by law enforcement; she continually asked for an attorney but the officers ignored her requests and continued interrogating her. At one point during the interrogation she was told that she could be subject to the death penalty, depending on her knowledge and involvement in the crime. (Id. at pp. 222-223.) This interview was terminated after three hours. She was interviewed again after her apartment was searched. At the outset of the second interview she was told she could not be reinterviewed unless she initiated the conversation. She initiated the conversation and admitted some participation in the murder. (Id. at pp. 224-225.)
The trial court did not admit the first statement, finding it to be in violation of Miranda, but admitted statements made by the defendant during the second interview. The California Supreme Court found the second interview to be involuntary. “We think the following facts are significant: Defendant, while doubtless sophisticated for her years, was a 16-year-old girl; the officers failed to respond to any of defendant’s repeated requests for the assistance of counsel; there was a relatively short time span between the two interviews during some of which time defendant had remained in the officers’ presence; during the first interview defendant had several times been called a liar; the death penalty had been improperly mentioned; there were implications for leniency in the ‘principal vs. accessory’ conversation. Taken together, we think it fair to conclude from the record that the threats of punishment and the promises of leniency echoed in the continuum between the two conversations to a degree which renders her statements in the second interview involuntary and inadmissible.” (People v. McClary, supra, 20 Cal.3d at p. 229.)
The decision in McClary was based on a multitude of reasons, not merely improper mention of the death penalty. Here, the only possible viable reason to demonstrate improper coercion was the misrepresentation regarding the possibility of imposition of the death penalty.
The threat of imposition of the death penalty when the death penalty was not in effect occurred in People v. Nicholas (1980) 112 Cal.App.3d 249. The defendant was interviewed regarding two murders at a gas station. He denied any involvement and said he had a legitimate alibi that he did not want to discuss with the officers. The officers were not convinced that the defendant would not change his mind and make an admission, so they persisted in their interrogation of him. He was then confronted with the fact that his palm print matched a print found on the duct tape that bound one of the murder victims. The defendant said he would die swearing he did not commit the murders. At this point in the interview, the defendant was informed that the death penalty went back into effect “today.” The defendant replied that if he was guilty, which he was not, “then a life for a life.” (Id. at p. 263.)
The officers then encouraged the defendant to be a man, earn some respect, and tell them what happened. The defendant asked that the tape recorder be turned off and he asked to speak to one of the officers alone. After being assured that the room was not bugged and there was no one in the adjoining office, the defendant lowered his head and said he did it. The defendant then agreed to make a tape-recorded confession. (People v. Nicholas, supra, 112 Cal.App.3d at p. 263.)
At the preliminary hearing, one of the officers admitted that the officers knew the reenactment of the death penalty would have no retroactive effect on defendant’s case, but this was not explained to him. The appellate court found the defendant’s statement to be involuntary on more than one basis. The court found unquestioned abuse by the officers during their interrogation of defendant. “Although there were no express threats in the death penalty reference, in the context of the in-custody interrogation, after repeated denials of guilt by defendant and coupled with the other psychologically coercive ploys of the police, such a threat was implied. What other conceivable reason would the officer have in mentioning the death penalty? Such an implication was palpably false and deceitful. The officer admitted at the preliminary examination that he knew the death penalty was not applicable to the defendant’s case. The matter was further exacerbated by defendant’s clear acceptance of the death penalty as a possibility when he said “If I’m guilty... then a life for a life.” At this point, the officers, rather than correcting defendant’s expressed misconception, perpetuated their deception by telling him there were two people dead and he could not equalize the situation. In the very next series of comments, the officers, in effect, told defendant they would have consideration for him if he would admit the crimes. Whereupon, defendant then expressed his desire to speak to one of the officers alone and without recordation.” (People v. Nicholas, supra, 112 Cal.App.3d at p. 266.) The court held that when defendant requested to turn off the tape recorder and speak to one of the officers alone in complete privacy, this was an invocation of his right to remain silent. (Id. at pp. 267-268.)
In Nicholas, the court had more than one basis to find the confession involuntary. Here there is only one basis that might be coercive, informing defendant he could receive the death penalty, and there were no other circumstances to support a finding of coerciveness.
People v. Denney (1984) 152 Cal.App.3d 530, a case from this court, is also relied on by defendant. In Denney, a murder case, the defendant asked for an attorney but the officers kept the interrogation going and told the defendant they were trying to help him and wanted to keep him from getting the gas chamber. We held that this “blatant violation of the Miranda rules compels a finding that everything said by appellant from this point on was the product of the officers’ threats.” (Id at p. 540.) The defendant then waived his Miranda rights and continued to talk. One of the officers told the defendant a fictionalized hypothetical story involving a robbery murder where two of the individuals in the car during the robbery were granted extreme leniency because they cooperated with law enforcement. The claims of leniency were blatantly false. The defendant confessed. At the hearing on the motion to suppress, the defendant testified that he had a definite feeling that if he cooperated he would receive a lesser sentence. We found the defendant’s statement to be involuntary and held “it is clear that appellant was induced to confess by the officer’s hypothetical story and pressured by the implied threat that he would get the gas chamber if he did not confess.” (Id. at pp. 540-544.) “In sum, when we consider the substance of the hypothetical and appellant’s request for an attorney, together with the officers’ threats to walk out if he persisted in asking for an attorney and that appellant might get the death penalty, we must conclude that appellant’s confession was involuntarily obtained by the misconduct of the police officers.” (Id. at p. 546.)
Again, there were more reasons than just the threat of the imposition of the death penalty in Denney to cause this court to find the defendant’s statement to be involuntary. More important, the defendant in Denney explicitly stated that the officers’ representations induced him to confess.
We are satisfied that Skiles’s statements had no coercive effect on defendant. From the outset of the interview, defendant stated he was going to go to trial. When told he could be subject to the death penalty, he disputed this and said there was no death penalty. Defendant was adamant in his position and did not waiver from his legally correct belief whenever Skiles mentioned the death penalty. The fact that defendant was aware of changes in the death penalty law demonstrated his understanding of the subject far beyond the knowledge of an average defendant. There was no change in attitude, nor any change in the information defendant offered the interviewers throughout the course of the interview. Defendant continually denied all knowledge of and involvement in the crimes and repeatedly insisted that he would go to trial. Defendant repeatedly stated he had nothing to lose by going to trial. There is nothing in the record to show that the statements by Skiles caused defendant any particular concern. Nor did defendant make any statements in reliance on what Skiles said to him.
We find beyond a reasonable doubt that the erroneous threat of possibly seeking the death penalty made by Skiles did not actually induce defendant to continue talking to the officers nor was it a motivating cause of his continued conversation with them.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, J., HILL, J.