Capital Defense Weekly, July 21, 2003

By Capital Defense Newsletter
Jul 21, 2003

This edition covers cases handed down from July 14, 2003 to July 21, 2003, two of which are of special note.

The first case is yet another example of a state supreme court wrestling with Ring v. Arizona, this time the North Carolina Supreme Court in North Carolina v. Hunt. At issue in Hunt is whether Ring invalidates that state's so-called short-form indictment in capital cases. Specifically, the North Carolina short form indictment does not require, like some other jurisdictions, aggravators be set forth in an indictment. Hunt holds that the failure to include such information relating to aggravators is permissible under Ring. Those interested might want to see the collection of pleadings & related materials assembled by Tim Ford of MacDonald, Hoague & Bayless of Seattle as to many of the Ring challenges at http://www.mhb.com/news.htm.

The other case is a noncapital case, California v. Neal

Also below is a Fifth Circuit blood bath denying relief in five separate capital cases, including: Allridge v. Cockrell, Riley v. Cockrell, Miniel v. Cockrell, Kelly v. Cockrell, & Wilson v. Cockrell

The "Focus" section will return next week.

EXECUTION INFORMATION

The following person's have been executed since the last edition:

HOT LIST

North Carolina v. Hunt, 2003 N.C. LEXIS 746 (NC 7/16/203) The North Carolina short form indictment that does not list aggravators held permissible.

It is against this backdrop that we consider whether the United States Supreme Court's decision in Ring renders unconstitutional North Carolina's short-form murder indictments, the form of indictment under which petitioner was charged. The United States Supreme Court's decisions in Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), laid the groundwork for the Court's decision in Ring. Briefly, in Jones, the Court examined the defendant's conviction and sentence under a federal carjacking statute. Jones, 526 U.S. at 229, 143 L. Ed. 2d at 317. In Jones, the defendant's sentence had been increased [*19] based upon the existence of what the government treated as a sentencing factor found by a trial judge and proven by a preponderance of the evidence. The United States Supreme Court concluded that the so-called sentencing factors were actually elements of separate offenses and that they "must be charged by indictment, proven beyond a reasonable doubt and submitted to a jury for its verdict." Id. at 251-52, 143 L. Ed. 2d at 331.
Similarly, in Apprendi, the United States Supreme Court examined a portion of New Jersey's hate-crime legislation that provided that a trial judge could increase a defendant's sentence beyond the statutory maximum if the judge found, by a preponderance of the evidence, that the underlying crime was motivated by race or other impermissible factor. Apprendi, 530 U.S. at 468-69, 147 L. Ed. 2d at 442. The only issue before the Supreme Court was whether the above-noted statutory scheme violated the Sixth Amendment's guarantee to a trial by jury. The Court noted that the statutory labels "element" or "sentencing factor" were irrelevant in determining whether the Sixth Amendment required that the factors be proven to a jury beyond [*20] a reasonable doubt. Id. at 494, 147 L. Ed. 2d at 457. Rather, the inquiry should be whether "the required finding exposes the defendant to a greater punishment than that authorized by the jury's guilty verdict." Id. The Court held that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 147 L. Ed. 2d at 455.
In Ring, the United States Supreme Court held that Arizona's capital sentencing scheme violated the Sixth Amendment right to trial by jury. Ring, 536 U.S. at 609, 153 L. Ed. 2d at 576-77. The Court concluded that "because Arizona's enumerated aggravating factors operate as 'the functional equivalent of an element of a greater offense,' the Sixth Amendment requires that they be found by a jury" and be proven beyond a reasonable doubt. Id. at 609, 153 L. Ed. 2d at 577 (quoting Apprendi, 530 U.S. at 494 n.19, 147 L. Ed. 2d at 435 n.19).
Significantly, the United States Supreme Court in Ring observed that North Carolina was one [*21] of the twenty-nine states that "commits sentencing decisions to juries" in death penalty cases. Ring, 536 U.S. at 608 n.6, 153 L. Ed. 2d at 576 n.6. This Court has previously held that North Carolina's capital sentencing scheme comports with both Jones and Apprendi. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797, 121 S. Ct. 890 (2001); State v. Lawrence, 352 N.C. 1, 530 S.E.2d 807 (2000), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684, 121 S. Ct. 789 (2001); State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498, 121 S. Ct. 581 (2000). We now hold that North Carolina's capital sentencing scheme complies with Ring in that aggravating circumstances must be submitted to and found by the jury beyond a reasonable doubt. See N.C.G.S. § 15A-2000(c)(1).
In North Carolina criminal prosecutions, the use of indictments is a well-established practice. Our state Constitution has consistently provided that no person shall be put to answer any [*22] criminal charge but by indictment, presentment, or impeachment. But any person, when represented by counsel, may, under such regulations as the General Assembly shall prescribe, waive indictment in noncapital cases.
***
The enactment of legislation authorizing the short-form murder indictment in 1887 was an attempt by the General Assembly to reform our criminal pleading practice. See State v. Avery, 315 N.C. 1, 12-14, 337 S.E.2d 786, 792-93 (1985); Moore, 104 N.C. at 750-51, 10 S.E. at 185-86; see also ch. 58, 1887 N.C. Sess. Laws at 106 (entitled "An act to simplify indictments in certain cases"). The statute authorizing the use of short-form murder indictments, N.C.G.S. § 15-144, provides the same now as it did when enacted: "It is sufficient in describing murder to allege that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder [victim's name] . . . ." N.C.G.S. § 15-144 (2001).
Since the genesis of the short-form murder indictment in 1887, its validity has continually been avowed by the General Assembly. In 1893, when the legislature divided the common-law crime of murder into two degrees, it provided, by the same act, that "nothing herein contained shall be construed to require any alteration or modification of the [*27] existing form of indictment for murder." Act of Feb. 11, 1893, ch. 85, sec. 3, 1893 N.C. Sess. Laws 76, 76-77 (The relevant portion of the current version of the statute, N.C.G.S. § 15-172 (2001), provides the following: "Nothing contained in the statute law dividing murder into degrees shall be construed to require any alteration or modification of the existing form of indictment for murder."); see also State v. Kirksey, 227 N.C. 445, 448-49, 42 S.E.2d 613, 615 (1947) (noting that "the existing form of indictment" referred to in section 15-172 included short-form murder indictments as authorized by section 15-144).
This Court affirmed the General Assembly's intent to preserve the short-form murder indictment's usage, even after the most recent changes to the North Carolina Constitution and statutory changes to our criminal procedure laws. In 1971, North Carolina adopted the present incarnation of our state Constitution mandating the following: "In all criminal prosecutions, every person charged with a crime has the right to be informed of the accusation . . . ." N.C. Const. art. I, § 23. Shortly thereafter, in 1973, the General Assembly [*28] passed our Criminal Procedure Act (the Act), which was, as its name indicates, sweeping legislation regarding pretrial procedures in criminal prosecutions. Act of Apr. 11, 1974, ch. 1286, sec. 1, 1973 N.C. Sess. Laws (2d Sess.) 490, 490 ("An act to amend the laws relating to pretrial criminal procedure"). As part of the Act, the legislature provided that criminal pleadings must contain "[a] plain and concise factual statement in each count which . . . asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation." Id. at 535 (codified as N.C.G.S. § 15A-924(a)(5)).
Upon examining a challenge to short-form murder indictments in light of the above-noted constitutional and statutory provisions, this Court expressly found that such indictments remained a valid charging instrument, as neither Article I, Section 23 of our state Constitution nor N.C.G.S. § 15A-924(a)(5) expressly or implicitly repealed the statute authorizing the indictment's use. Avery, 315 N.C. at 14, 337 S.E.2d at 793. [*29] In sum, although changes were made to the way our courts indict for crimes other than murder, the short-form murder indictment remained a special instrument, statutorily distinguished from other indictments. The General Assembly again reaffirmed the validity of the short-form indictment by expanding its use to charge other serious felonies, including rape, see N.C.G.S. § 15-144.1 (2001) (enacted in 1977); Lowe, 295 N.C. at 603-04, 247 S.E.2d at 883-84 (affirming validity of short-form rape indictment), and statutory sex offense, see N.C.G.S. § 15-144.2 (2001) (enacted in 1979); State v. Edwards, 305 N.C. 378, 380, 289 S.E.2d 360, 362 (1982) (upholding short-form indictments charging sex offenses).
The Fifth and Sixth Amendments to the United States Constitution operate in tandem to guarantee those accused of a federal crime the right to indictment as the method by which they are "informed of the nature and cause of the accusations" against them. U.S. Const. amends. V, VI; Harris v. United States, 536 U.S. 545, 549, 153 L. Ed. 2d 524, 532, 122 S. Ct. 2406 (2002); see [*30] also Jones, 526 U.S. at 252, 143 L. Ed. 2d at 331 (noting that the so-called sentencing factors were actually elements of separate crimes and must therefore be charged in indictment); Almendarez-Torres v. United States, 523 U.S. 224, 228, 140 L. Ed. 2d 350, 358, 118 S. Ct. 1219 (1998) (noting that indictment must allege all of the elements of a crime); Hamling v. United States, 418 U.S. 87, 117, 41 L. Ed. 2d 590, 620, 94 S. Ct. 2887 (1974) (same). The United States Constitution does not, however, apply the same principles to state-court prosecutions. For instance, the United States Supreme Court has never applied the Fifth Amendment's guarantee to indictment by a grand jury to state prosecutions. Alexander v. Louisiana, 405 U.S. 625, 633, 31 L. Ed. 2d 536, 543-44, 92 S. Ct. 1221 (1972); see also Hodgson v. Vermont, 168 U.S. 262, 272, 42 L. Ed. 461, 464, 18 S. Ct. 80 (1897) ("The words 'due process of law' in the Fourteenth Amendment of the Constitution of the United States do not necessarily require an indictment by a grand jury in a prosecution by a State for murder."); Hurtado v. California, 110 U.S. 516, 538, 28 L. Ed. 232, 239, 4 S. Ct. 111 (1884) [*31] (same). In observing that it had never applied the above-noted Fifth Amendment guarantee to states, the Supreme Court expressly stated that "the Due Process Clause . . . does not require the States to observe the Fifth Amendment's provision for presentment or indictment by a grand jury." Alexander, 405 U.S. at 633, 31 L. Ed. 2d at 543.
Perhaps most important, in Apprendi and Ring--cases pivotal to petitioner's claim in the present case--the United States Supreme Court clearly indicated that those decisions did not concern or have any applicability to allegedly defective indictments. Ring, 536 U.S. at 597 n.4, 153 L. Ed. 2d at 569 n.4 ("Ring does not contend that his indictment was constitutionally defective."); Apprendi, 530 U.S. at 477 n.3, 147 L. Ed. 2d at 447 n.3 ("Apprendi has not here asserted a constitutional claim based on the omission of any reference to sentence enhancement or racial bias in the indictment."). In Apprendi, the Court expressly recognized that the Fourteenth Amendment "has not . . . been construed to include the Fifth Amendment right to 'presentment or indictment of a Grand Jury.'" Apprendi, 530 U.S. at 477 n.3, 147 L. Ed. 2d at 447 n.3. [*32] In Harris, the United States Supreme Court recently affirmed that while only federal prosecutions require presentment or indictment by grand jury, the Sixth Amendment guarantee to trial by an impartial jury, including the right to have all elements proven beyond a reasonable doubt, applies in both state and federal prosecutions. Harris, 536 U.S. at 549, 153 L. Ed. 2d at 532-33.
In contrast to its application of the Fifth Amendment's indictment guarantee, the United States Supreme Court has unequivocally applied the Sixth Amendment's edict that the accused be informed of criminal accusations against him. In re Oliver, 333 U.S. 257, 273, 92 L. Ed. 682, 694, 68 S. Ct. 499 (1948). In defining the parameters of state criminal defendants' rights to notice under the Sixth Amendment, the Supreme Court has concluded that such defendants have a right to "reasonable notice" sufficient to ensure that they are afforded an opportunity to defend against the charges. Id. As stated by the Supreme Court over one hundred years ago in Hodgson,
in all criminal prosecutions the accused must be informed of the nature and cause of the accusation [*33] against him; that in no case can there be, in criminal proceedings, due process of law where the accused is not thus informed, and that the information which he is to receive is that which will acquaint him with the essential particulars of the offense, so that he may appear in court prepared to meet every feature of the accusation against him.
168 U.S. at 269, 42 L. Ed. at 463 (emphasis added).
This Court has recognized that the Fifth Amendment's guarantee to indictment by a grand jury does not apply in the context of a challenge to state-court indictment. In Wallace, 351 N.C. 481, 528 S.E.2d 326, we examined a challenge to short- form indictments charging murder, rape, and sex offense in which the defendant claimed that the indictments failed to allege all elements of the crimes charged. In so doing, this Court acknowledged that the due process and notice requirements under the Sixth Amendment inured to state prosecutions, as stated by the Supreme Court in Hodgson. Id. at 507, 528 S.E.2d at 342-43. We further recognized that the Fifth Amendment's guarantee to indictment by a grand jury was not applicable to the states, and [*34] as such, "all the elements or facts which might increase the maximum punishment for a crime" do not necessarily need to be listed in an indictment. Id. at 508, 528 S.E.2d at 343. Our holding in Wallace is consistent with the United States Supreme Court's decision in Ring: that the Fifth Amendment would not require aggravators, even if they were fundamental equivalents of elements of an offense, to be pled in a state-court indictment.
Short-form indictments, including the ones used to charge petitioner in the instant case, comport with the statutory provisions governing indictment practices. Given the instrument's genesis and history, short-form murder indictments are special instruments that arose separate from and coexist with the statutory requirements of N.C.G.S. § 15A-924(a)(5), which mandates that indictments contain a "plain and concise factual statement in each count." Consistent with the concept of construing statutes in pari materia, our General Assembly could not have intended a conflict with other indictment statutes or a statutory violation arising from the use of short-form indictments. See Brown v. Flowe, 349 N.C. 520, 523-24, 507 S.E.2d 894, 896 (1998) [*35] (noting that "when multiple statutes address a single subject, this Court construes them in pari materia to determine and effectuate the legislative intent").
In support of his argument that the aggravating circumstances must have been pled in his indictments, petitioner relies heavily on our decision in State v. Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001). In Lucas, this Court invalidated the defendant's two noncapital felony sentences, partially because certain factors increasing the defendant's sentences were not pled in his indictment. Id. at 597-98, 548 S.E.2d at 731. Defendant's application of Lucas misapprehends the law. In Lucas, we were not concerned with a short-form indictment. As we indicated in Lucas, if the State wishes to seek a firearm enhancement in addition to a conviction for murder, rape, or sex offense, the enhancement must be pled in the indictment, even if the charging instrument is a short-form indictment. Id. at 598, 548 S.E.2d at 732. However, the principles of Lucas do not otherwise apply to short-form indictments.
Unlike a short-form indictment, the indictment in Lucas was [*36] not exempt from the statutory requirement, pursuant to N.C.G.S. § 15A-924, that indictments must state every element of the crime charged. It follows that crimes charged pursuant to a short-form indictment--murder, rape, and sex offense--are not governed by the principles espoused in Lucas. Such an application of Lucas comports with well-established case law holding that in prosecutions where short-form indictments are not used and the indictment alleges elements of a lesser crime, there is no statutory authority (sometimes referred to as "jurisdiction") to enter judgment based upon a verdict finding defendant guilty of the greater crime. See State v. Jerrett, 309 N.C. 239, 307 S.E.2d 339 (1983) (noting that although the legislature may prescribe the form of indictment sufficient to allege a crime without listing all elements and had done so in certain cases, it had not done so in the case of kidnapping); State v. Perry, 291 N.C. 586, 231 S.E.2d 262 (1977) (holding, prior to provisions for short-form rape indictments, that, unlike murder indictment, indictment sufficient to charge second-degree rape was not sufficient [*37] to charge first-degree rape); see also State v. Moore, 316 N.C. 328, 341 S.E.2d 733 (1986); State v. Goss, 293 N.C. 147, 235 S.E.2d 844 (1977). The legislature has thus made it clear that murder and other crimes for which it has authorized the use of short-form indictments are to be treated differently in the application of N.C.G.S. § 15A-924 (indictment must express the charge in a plain, intelligible, and explicit manner). Cf. N.C. Const. art. I, § 12 (treating capital crimes differently by prohibiting waiver of indictment in those cases); N.C.G.S. § 15A-642(b) (2001) (same); Thomas, 236 N.C. at 457, 73 S.E.2d at 285 (same).
As there is no statutory requirement that aggravating circumstances be pled in murder indictments, the only remaining potential bar to the use of the short-form murder indictment would be constitutional. See State v. Harris, 145 N.C. 456, 458, 59 S.E. 115, 116 (1907) ("'To be informed of the accusation against him' is the requirement of our Bill of Rights, and unless such legislation is in violation of this principle or in contravention [*38] of some express constitutional provision, it should and must be upheld by the courts."). As noted supra, neither Ring nor Apprendi purports to address or dictate the contents of a state-court murder indictment. Furthermore, to this date, the United States Supreme Court has not applied the Fifth Amendment indictment requirements to the states. See Alexander, 405 U.S. at 633, 31 L. Ed. 2d at 543-44. Thus, in answering the question before the Court today, Ring does not require that aggravating circumstances be alleged in state-court indictments.
Our independent review of decisions from our sister states reveals that to this date every state court addressing the above-noted issue has held that Ring does not require that aggravating circumstances be alleged in the indictment. See, e.g., Stallworth v. State, ___ So. 2d ___, ___, 2003 Ala. Crim. App. LEXIS 21, at *22-23 (Ala. Crim. App. Jan. 31, 2003) (No. CR-98-0366) (indicating that Ring did not change prior case law holding that aggravators do not need to be pled in an indictment); Bottoson v. Moore, 833 So. 2d 693, 695 (Fla.) (per curiam) (rejecting arguments [*39] based upon Ring), cert. denied, ___ U.S. ___, 154 L. Ed. 2d 564, 123 S. Ct. 662 (2002); Terrell v. State, 276 Ga. 34, ___, 572 S.E.2d 595, 602 (2002) (concluding in a post-Ring challenge to an indictment that the indictment need not allege aggravating circumstances); State v. Gilbert, 103 S.W.3d 743, 747 (Mo. 2003) (en banc) (holding that Ring had no effect on the court's previous rejection of the argument that indictments need to allege aggravators); State v. Oatney, 335 Or. 276, ___, 66 P.3d 475, 487 (2003) (holding that Ring did not address the issue of whether aggravators needed to be pled in the indictment and, therefore, that court's prior holding that an indictment need not contain aggravators remained unchanged); State v. Berry, ___ S.W.2d ___, ___, 2003 Tenn. Crim. App. LEXIS 316, *16 (Tenn. Crim. App. Apr. 10, 2003) (No. M2001-02023-CCA-R3-DD) (holding, post-Ring, that Apprendi did not apply to require the State to include aggravators in indictments).

California v. Neal, 2003 Cal. LEXIS 4426 (CA 7/14/2003) Reversal had on gross police misconduct relating to use of non-Miranda confession.

We begin with the fact that in the course of the first interview, Detective Martin intentionally continued interrogation in deliberate violation of Miranda in spite of defendant's invocation of both his right to remain silent and right to counsel. Martin conceded that, according to his own count, defendant invoked his right to counsel "probably" "7 to 10 times." Martin also conceded that in proceeding as he did, he was applying what he called a "useful tool" that he had learned from a supervisor and knew to be improper, in order to obtain a statement that the People might use "[f]or possible further impeachment at trial ... if [defendant] decided to testify." n5 Martin acknowledged that he terminated the first interview only because he grew tired of listening to defendant deny killing Collins. As we have emphasized on more than one occasion, misconduct such as Martin's is "unethical" and must be "strongly disapproved." (People v. Bradford (1997) 14 Cal.4th 1005, 1042 [60 Cal. Rptr. 2d 225, 929 P.2d 544]; see People v. Storm (2002) 28 Cal.4th 1007, 1034 [124 Cal. Rptr. 2d 110, 52 P.3d 52]; People v. Peevy, supra, 17 Cal.4th at p. 1204.) [*37]
***
The facts set out above are unlike those in our recent decision in People v. Storm, supra, 28 Cal.4th 1007. There, "[d]uring an investigation of his wife's homicide, defendant agreed to take a polygraph test. At the police station, he received Miranda warnings and waived his rights, but then said he wished to consult a lawyer before speaking further. Rather than cease questioning immediately, as Miranda and ... Edwards ... require in a custodial setting, the polygraph operator encouraged defendant to keep talking. During this interlude, defendant admitted he killed his wife, claiming an assisted suicide. [P] Defendant was allowed to leave the station. Two days later, detectives came to his home. After assuring [*42] him he would not then be arrested, they interviewed him again without new Miranda warnings. Defendant provided a more detailed version of his assisted-suicide story. The detectives then departed as they had promised." (People v. Storm, supra, 28 Cal.4th at p. 1012.) The defendant subsequently was charged with murder and, following a trial at which defendant's statements were admitted in evidence, he was convicted. On appeal, the defendant contended that the admission of these statements was error, but the Court of Appeal rejected this claim. We subsequently agreed with the Court of Appeal: "The narrow nature of our holding should be emphasized. We conclude only that Edwards is not violated when the police recontact a suspect after a break in custody which gives the suspect reasonable time and opportunity, while free from coercive custodial pressures, to consult counsel if he or she wishes to do so. We do not suggest the police can avoid Edwards simply by allowing the suspect to step outside the station house at midnight on a Saturday, then promptly rearresting him without affording any realistic opportunity to seek counsel's assistance free of the coercive atmosphere of custody. We are persuaded, however, that the two-day ... hiatus at issue here ... was amply sufficient to dissipate custodial pressures and permit defendant to consult counsel." (People v. Storm, supra, 28 Cal.4th at pp. 1024-1025.)
On all points, the facts here are distinguishable from those in Storm. When Detective Martin finally terminated the first interview after intentionally continuing the interrogation in deliberate violation of Miranda, notwithstanding defendant's invocation of both his right to remain silent and right to counsel, he did not allow defendant to leave; Martin already had arrested defendant, and then caused him to be jailed. When Martin resumed interrogation the next day, defendant remained in custody, and Martin questioned him in a custodial setting. Before confessing defendant was under arrest, and after confessing he remained under arrest. Thus, although the defendant in Storm generally was questioned outside of the "coercive atmosphere of police custody" (People v. Storm, supra, 28 Cal.4th at p. 1013), defendant here undeniably was questioned in [*44] that very atmosphere, from beginning to end. The break in custody at the heart of Storm simply is absent in the case before us.
The second circumstance that also weighs heavily against the voluntariness of defendant's initiation of the second interview, and against the voluntariness of his two subsequent confessions as well, involves defendant himself and his situation. Here, our evaluation "permits--indeed, it mandates--inquiry into all the circumstances," including "evaluation of [defendant's] age, experience, education, background, and intelligence ... ." (Fare v. Michael C. (1979) 442 U.S. 707, 725 [61 L. Ed. 2d 197, 99 S. Ct. 2560].) At the time pertinent here, defendant was 18 years of age. Defendant's experience apparently was hardly extensive, certainly so with respect to legal matters, suggesting no knowledge that he soon would be brought before a magistrate and have counsel appointed for him. Defendant's education was minimal, inasmuch as he failed to graduate even from continuation high school. Defendant's background was one of thoroughgoing neglect if not abuse. And defendant's intelligence, as the record reveals from beginning to end, was quite [*45] low. As for defendant's situation, after he was arrested and jailed following the first interview, he was placed in a cell without a toilet or a sink, he did not have access to counsel or to any other noncustodial personnel, he was not taken to a bathroom or given any water until the next morning, and he was not provided with any food until some time following the third interview, after more than 24 hours in custody and more than 36 hours since his last meal. Perhaps most significantly, defendant, as far as he could tell, was confined incommunicado. When defendant declared, "I am ready to talk to my lawyer," Detective Martin implied that defendant had to talk to him, and could talk to no one else. Martin did not offer defendant an opportunity to speak with an attorney or even with his mother or his brother, nor was there any evidence suggesting that anyone other than Martin made such an offer. Although defendant's situation might not have reflected "physical punishment" (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226 [36 L. Ed. 2d 854, 93 S. Ct. 2041]) in the strictest sense of the phrase, its harshness cannot be ignored. Put simply, defendant's situation "could only have increased his feelings of helplessness." (People v. Montano (1991) 226 Cal. App. 3d 914, 939 [277 Cal. Rptr. 327].)
The third circumstance that additionally weighs heavily against the voluntariness of defendant's initiation of the second interview, and against the voluntariness of his two subsequent confessions as well, arises from Detective Martin's promise and threat to defendant at the first interview. Promises and threats traditionally have been recognized as corrosive of voluntariness. (See, e.g., Hutto v. Ross, supra, 429 U.S. at p. 30; Malloy v. Hogan, supra, 378 U.S. at p. 7; People v. Benson, supra, 52 Cal.3d at p. 778.) Here we have both a promise and a threat. Each was made by Martin long after he should have brought the first interview to an end upon defendant's repeated invocation of both his right to remain silent and right to counsel. Specifically, Martin threatened defendant, in Martin's Greyhound bus metaphor, to drop defendant off closer to Timbuktu than to home if he did not cooperate. n6 Martin also promised defendant, if he did cooperate, to make it [*47] as good for him as he could. Both the promise and the threat had the effect plainly intended by Martin. As for the promise, defendant initiated the second interview, in part, " 'cause I felt like [Martin]'d be able to help me." And as the second interview opened, Martin responded, "[t]hat's no problem" and "that's on tape," to defendant's statement, "you gotta tell them that I helped you out, so that they help me out when I go to court." As for the threat, defendant apparently believed that he was moving closer to home by initiating the second interview and obtaining Martin's promise that he would "send a letter to your mom." In initiating the second interview, defendant was "thinking I wanted to see my mom and brother again one of these days."
To be sure, there is one circumstance that, unlike the rest, weighs in favor of the voluntariness of defendant's initiation of the second interview, and in favor of the voluntariness of his two subsequent confessions as well--the apparent pressure that defendant's guilty conscience exerted upon him. Defendant himself admitted that he was "feel[ing] guilty," and that guilt "was weighing pretty heavy on [his] mind." The evidence, however, does not suggest that defendant's sense of guilt alone caused him to initiate the second interview, or to make his subsequent confessions, but instead indicates that Martin's misconduct played the dominant role, with defendant making clear his concern that Martin assist both in communicating with defendant's mother and in dealing with the court.
In light of the record in its entirety, including all of the surrounding circumstances, we conclude that defendant's initiation of the second interview was involuntary, and that his two subsequent confessions were involuntary as well. Therefore, defendant's confessions were inadmissible not only in the People's case- in-chief because they were obtained in violation of Edwards, but also were inadmissible [*49] for any purpose because they were involuntary. Thus it follows that the trial court erred in denying defendant's motion to suppress the confessions.
From Justice Baxter's concurrernce:
Perhaps the most disturbing aspect of this fiasco is [*60] Martin's admission that he was taught on the job to disregard Miranda in order to obtain statements for use as evidence in criminal cases against the declarants. Martin testified he knew he was supposed to stop questioning a custodial suspect who asked for a lawyer, but he ignored this prong of Miranda in hopes of eliciting evidence that could be used to impeach defendant if he testified in his own behalf in a criminal trial. According to Martin, he received training from a Sergeant Lomeli, who informed Martin that this tactic "can be a useful tool."
As Martin knew, statements obtained in violation of Miranda's standards are excluded from the prosecution's case-in-chief, but if not otherwise involuntary, they may be used to impeach the suspect's trial testimony. (Harris v. New York (1971) 401 U.S. 222, 225-226 [28 L. Ed. 2d 1, 91 S. Ct. 643] (Harris).) Moreover, we have held that use for impeachment is not obviated simply because the interrogating officer's failure to honor Miranda was deliberate. (People v. Peevy (1998) 17 Cal.4th 1184, 1191-1205 [73 Cal. Rptr. 2d 865, 953 P.2d 1212] (Peevy).)
In Peevy, we expressly declined to consider [*61] whether a different result might apply to statements obtained "pursuant to ... a systematic policy of police misconduct." (Peevy, supra, 17 Cal.4th 1184, 1205.) But nothing in Peevy was meant to condone deliberately improper interrogation tactics, whether individual or systematic.
As we explained in Peevy, the courts' refusal to extend the exclusionary sanction of Miranda to impeachment evidence is not founded upon any notion that it is legitimate for the police to interrogate a suspect in custody despite his demand for counsel. Rather, the United States Supreme Court has simply concluded that, if the statements thereby elicited were voluntary, the cost of excluding them from evidence is too great where the result is to leave the defendant free to perjure himself at trial. (Peevy, supra, 17 Cal.4th 1184, 1204-1205; see Harris, supra, 401 U.S. 222, 224.)
California courts have time and again noted and decried deliberate police use of tactics that violate Miranda standards. (Peevy, supra, 17 Cal.4th 1184, 1204, citing, inter alia, People v. Bradford (1997) 14 Cal.4th 1005, 1042 [60 Cal. Rptr. 2d 225, 929 P.2d 544] [police officers' "conduct in deliberately interrogating defendant after [he] had invoked his right to counsel was unethical and it is strongly disapproved"]; In re Gilbert E. (1995) 32 Cal.App.4th 1598, 1602 [38 Cal. Rptr. 2d 866] [deploring deliberate Miranda violation and observing that "[w]hen the police deliberately step over the line and disobey Supreme Court pronouncements, respect for the ... law necessarily diminishes"]; People v. Bey (1993) 21 Cal.App.4th 1623, 1627 [27 Cal. Rptr. 2d 28] [expressing grave concern at deliberate Miranda violation, and observing that such police misconduct appears not to be a new tactic]; and People v. Baker (1990) 220 Cal. App. 3d 574, 579 [269 Cal. Rptr. 475] [also deploring intentional Miranda violation and noting "the trial court here was well aware of the unlawfulness of the police conduct and stated that it intended to initiate steps to prohibit the San Diego Police Department from using such procedures in the future"].) It could not be clearer that efforts to gather court evidence by such means are improper.
Given this history, it is unconscionable for police departments or supervisors to give contrary instruction or encouragement [*63] to the officers under their jurisdiction. Law enforcement agencies have the responsibility to educate and train officers carefully to avoid improper tactics when conducting custodial interrogations. Officers must be made aware that they have an absolute obligation to play by the rules when questioning suspects in custody, and that their deliberate failure to do so will be severely disciplined. There can be no suggestion--formal or informal, direct or indirect--that improper interrogation tactics are required, encouraged, approved, condoned, or tolerated. Exactly the opposite impression must be conveyed to each and every officer. Only in this way can the police perform the crucial responsibilities they carry. n1
In a free society, we place the police in a position of unique power, but only on condition that they will do their best to uphold the law, and to enforce it nobly and fairly. Their ability to function effectively depends upon their credibility in that role. The community must trust that they do not operate by deliberately violating the very standards they are sworn to observe. When the police dishonor proper procedures, community respect for the police, and for the law itself, is undermined. (See In re Gilbert E., supra, 32 Cal.App.4th 1598, 1602.)
Police officers are human beings, charged with the important, difficult, and "often competitive enterprise of ferreting out crime." (Johnson v. United States (1948) 333 U.S. 10, 14 [92 L. Ed. 436, 68 S. Ct. 367].) Individual mistakes and overreaching will occur despite the best efforts of departments, supervisors, and officers acting in good faith. But our community should never be subjected to cynical efforts by police agencies, or the supervisors they employ, to exploit perceived legal loopholes by encouraging deliberately improper interrogation tactics. Such practices tarnish the badge most officers [*65] respect and honor.

SUPREME COURT

The Court is in recess until September.

CAPITAL CASES (Favorable Disposition)

Belmontes v. Woodford, 2003 U.S. App. LEXIS 14127 (9th Cir 7/16/2003) Relief granted on "Boyde" error. The trial judge's instructions failed to advise the jury to consider the portion of his mitigating evidence that tended to show that he would adapt well to prison and would become a constructive member of society if granted a life sentence.

CAPITAL CASES (Unfavorable Disposition)

Allridge v. Cockrell, 2003 U.S. App. LEXIS 14174 (5th Cir 7/16/2003) "[W]e are convinced that Allridge suffered no constitutional deprivation from his trial court's exclusion of venireman Osborn from the jury and that no reversible error was committed by the trial or appellate courts of Texas in that regard. We are likewise convinced that Allridge procedurally defaulted his claim of ineffective assistance of counsel; and, alternatively, that on the merits of that claim, he has not demonstrated either cause or prejudice under the test of Strickland, the failure to demonstrate either being fatal to such a claim."

Riley v. Cockrell, 2003 U.S. App. LEXIS 14325 (5th Cir 7/17/2003) Relief denied on claims that trial counsel failed to investigate and present evidence with regard to Riley's possible mental retardation. COAs denied on "the three additional grounds that: (1) the trial court deprived itself of jurisdiction by granting a motion to set aside the indictment, which rendered Riley's conviction and sentence unconstitutional under the Due Process Clause; and (2) trial counsel was ineffective because, (a) he argued that there were no mitigating factors that arose from Riley's personal history, and (b) he failed to argue that Riley had accepted responsibility for his crime when trial counsel specifically urged him to plead guilty for that purpose."

Miniel v. Cockrell, 2003 U.S. App. LEXIS 14404 (5th Cir 7/17/2003) COA denied on whether "(1) the jury was precluded from considering mitigating evidence during sentencing; (2) he was denied the right to trial by an impartial jury; and (3) counsel rendered ineffective assistance by failing to conduct a pretrial investigation and present mitigating evidence during sentencing."

Kelly v. Cockrell, 2003 U.S. App. LEXIS 14406 (5th Cir 7/17/2003) Relief denied on "claims: (1) his conviction and sentence constitute a denial of due process of law because he is actually innocent; (2) the prosecutor violated his due process rights by arguing incorrectly to the jury that his former wife should not be considered an accomplice; (3) his death sentence constitutes cruel and unusual punishment because it was secured in part through the use of perjured testimony; (4) the denial of sufficient funds to adequately investigate and prepare his defense constitute a denial of due process of law and cruel and unusual punishment; (5) the failure to provide sufficient funds to investigate and prepare his defense rendered counsel's performance ineffective; (6) the state court's denial of his motion to recuse itself denied him due process; and (7) counsel rendered ineffective assistance at trial."

Wilson v. Cockrell, 2003 U.S. App. LEXIS 14405 (5th Cir 7/17/2003) (unpublished) COA denied on Batson claim and ineffective assistance claims including failure to investigate the fact that the "alternate suspect" the defense sought to pin the murder on was in jail at the time of the offense.

Arizona v. Lamar, 2003 Ariz. LEXIS 105 (AZ 7/17/2003) Relief denied (save Ring claim which will be addressed in a separate opinion) on issues relating to: continuance, constructive denial of the right to self representation, and denial of mistrial after prosecutor elicited testimony which had been ruled inadmissible during a motion in limine.

California v. Yeoman, 2003 Cal. LEXIS 4823 (CA 7/17/2003) Relief denied most notably on Batson challenge to prosecution's striking four black women, sufficiency of evidence for robbery-murder special circumstance, prosecutorial misconduct during closing arguments, and juror misconduct.

Allen v. Indiana, 2003 Ind. LEXIS 581 (Ind 7/15/2003) The trial court held to have previously resolved, during a prior round of post-conviction proceedings, whether Allen is or is not mentally retarded & therefore relief denied.

FOCUS

To return next week.

OTHER RESOURCES

The Death Penalty Information Center (Deathpenaltyinfo.org) notes:

Judge Overturns Conviction, Criticizes Decision to Seek Federal Death Penalty
Stating that "this Court is unwilling to contort the law of federal kidnapping," and that federal prosecutors failed to present sufficient evidence to support that charge during the recent capital murder trial of Jay Lentz, a federal judge in Virginia has overturned the jury's guilty verdict in the case. In the ruling, U.S. District Judge Gerald Bruce Lee criticized the government for trying what he deemed a local homicide case in federal court. Earlier, the jury had rejected the government's request for a death sentence. (Washington Post, July 23, 2003) Despite a more aggressive pursuit of this punishment by the Justice Department, juries in 16 of the last 17 federal capital trials have declined to impose the death penalty (see below). See Federal Death Penalty.
NEW VOICES: Former San Francisco Prosecutor Denounces Death Penalty
After years of supporting capital punishment, former San Francisco prosecutor Bill Fazio recently changed his position on the death penalty. Fazio, who now serves as a defense attorney, stated, "Life without parole is a viable alternative." He noted that he began to reconsider his stance on capital punishment after the U.S. Court of Appeals reversed his sole death penalty conviction. Fazio noted, "It was an error by the trial judge, and it made me realize that after 21 years there was still no closure in the case. If Coleman had gotten life without parole, it would have been over in 1981." (San Francisco Daily Journal, July 10, 2003). See New Voices.
Illinois Is First State to Require Taped Interrogations
Governor Rod Blagojevich has signed a measure requiring police to record their interrogations of homicide suspects. The governor's signature makes Illinois the first state to officially implement such a policy. Blagojevich, a former prosecutor, noted that his previously-voiced concerns that video taped interrogations would impede police from doing their job had been overridden by the knowledge that the tapes will yield "clearer, more reliable" evidence for the state's justice system. The law will require detectives to audio- or video-tape homicide suspects during all interrogations that occur while the suspects are in custody. Although state law does not require the practice, law enforcement agents in Alaska and Minnesota also tape interrogations. This measure is one of more than 80 reforms recommended by the Illinois Commission on Capital Punishment. Additional reform legislation based on the recommendations currently awaits Blagojevich's signature. (New York Times, July 17, 2003, Peoria Journal Star, July 18, 2003). See Illinois Commission on Capital Punishment and Recent Legislative Developments.
Two Former Death Row Inmates Exonerated and Freed in Ohio
After spending a quarter century in prison, including time on Ohio's death row, Timothy Howard and Gary Lemar James have been freed from prison and all charges against the men will be dropped. The men, who have maintained their innocence since their arrest in 1976, were freed, according to Franklin County Prosecutor Ron O'Brien, "in the interest of justice." O'Brien stated, "The lesson to be learned is what I said in the letter I sent a year and a half ago. We don't want anybody in prison serving time for something they didn't do." The seven-year effort to exonerate Howard and James was led by their attorneys in conjunction with Centurion Ministries, a non-profit organization that has assisted in freeing more than 30 wrongfully convicted prisoners since 1983. Attorneys for Howard and James presented prosecutors with new evidence in the cases, including fingerprints, witness statements, and polygraph results that were not available during the original trial that resulted in the pair being sentenced to death. O'Brien acknowledged that dismissing the charges means that the city of Columbus has a 26-year-old unsolved bank robbery and murder. (Columbus Dispatch, July 16th & 18th, 2003). See Innocence.

ADDITIONAL RESOURCES

If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit: http://www.lidab.com/ (Louisiana's public defender), probono.net (ABA/ABCNY) & http://www.capdefnet.org/ (federal defender & arguably the best death penalty defense site on the net). These other resources have many prepackaged motions and law guides dealing with death penalty issue. Findlaw.com 's new service provides e-mail style newsletters on a wide variety of subjects at newsletters.findlaw.com , including both a free weekly free criminal law and limited state court decision lists. For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org).