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People v. Nudd

California Court of Appeals, Fourth District, Second Division
Aug 21, 1973
33 Cal.App.3d 1052 (Cal. Ct. App. 1973)

Opinion

For Opinion on Hearing, see 115 Cal.Rptr. 37, 524 P.2d 844.

Opinions on pages 1052-1077 omitted.

HEARINGS GRANTED

[109 Cal.Rptr. 636]Robert V. Fullerton, San Bernardino, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Mark L. Christiansen and Harley D. Mayfield, Deputy Attys. Gen., for plaintiff and respondent.


OPINION

KERRIGAN, Acting Presiding Justice.

Defendant was tried by jury and found guilty of two violations of section 4573.6 of the Penal Code: possession of narcotics (demerol) by an inmate of a state prison and possession of narcotic paraphernalia (a hypodermic injection kit) by an inmate. He appeals from the judgment sentencing him to state prison, the sentence to run consecutively with any other sentences he is serving.

Demerol is the trade name for a synthetic narcotic of the pethidine group, known generically as meperidine hydrochloride. It is used medically as an analgesic and sedative.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

THE FACTS

Resolving all conflicts in favor of the People, the evidence may be summarized as follows:

On Sunday, February 20, 1972, about 1:45 p. m., Warren Wenzel, a correctional [109 Cal.Rptr. 637] officer at the California Institution for Men at Chino (C.I.M.), was checking the West Dorm. As he passed defendant's cell, he noticed that there was a blanket over the window, and that defendant was sitting at a table toward the rear of the cell, with his back toward the cell door. Officer Wenzel could not see what defendant was doing. Inmates often cover their windows with blankets to keep out the light when they sleep, but it is unusual for an inmate to be sitting at his table with a blanket over the window. The officer walked on past, then came back and passed the cell again on his way to the guards' office to perform an errand. Thinking he had better check on defendant's activity, Wenzel abandoned his errand and returned to defendant's cell to see what he was doing.

Wenzel walked in. He saw defendant sitting at the table with his left arm on the table and his right arm by his thigh, with his right hand clenched. On the table were a rag and a small empty vial labeled 'Demerol.' Wenzel asked defendant what he had in his right hand; defendant said, 'Nothing.' Defendant started pushing Wenzel toward the door of the cell, keeping his right hand tightly clenched. A struggle ensued, in which some of the lockers in the cell were pushed out of their normal positions. Wenzel sat on the toilet lid and pushed defendant into the corridor. No one else was in the corridor at the time and there was nothing on the corridor floor.

As the struggle continued, Wenzel slipped. Defendant went over him and back into the cell, kicked the wooden cover off the toilet, made a throwing motion toward the toilet with his right hand, and flushed it twice. Wenzel did not actually see anything in defendant's hand, and did not see anything thrown into the toilet.

Starting to leave, Wenzel saw on the corridor floor about 12-18 inches from the door of defendant's cell an eyedropper with a hypodermic needle attached, wrapped with a rubber band, containing a small amount of a clear fluid. No one else was in the vicinity. He picked up the eyedropper and took defendant to the office, locking the cell as he left.

A few minutes later, Wenzel took defendant to Lieutenant Keser, the watch commander. A skin search was conducted. No contraband was found, but a red spot, approximately one inch in diameter, was observed on the right leg of defendant's undershorts, which were seized as evidence. Lieutenant Keser advised defendant of his Miranda rights and asked if, with his rights in mind, he wished to talk. Defendant asked if he would be charged with a felony. When Keser said, 'You probably will be,' defendant said, 'Well, then, I don't have anything to say.'

This is the conversation as reported by Lieutenant Keser at the in camera hearing on admissibility of defendant's statements, related infra.

People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 44 P.2d 65.

Keser, concerned about the physical encounter between guard and inmate, then initiated an 'off-the-record' conversation in which defendant indicated he had struggled with Officer Wenzel because he 'had to get rid of the stuff,' which was 'speed.' Confronted with the eyedropper and needle, defendant consistently denied any knowledge of them. None of these statements were reduced to writing or otherwise recorded in any form before trial.

Defendant's reference to 'speed' is puzzling, since demerol (fn. 1, supra) is a narcotic, a central nervous system depressant, and 'speed' is a slang expression that usually refers to methamphetamine hydrochloride, also known as methamphetamine or methedrine, a powerful central nervous system stimulant. (See Commonwealth v. Harvard (1969) 356 Mass. 452, fn. 2, 253 N.E.2d 346, 348; Social Services Publications, Narcotics and Drug Abuse, A to Z (1971) pp. I-49, II-6, II-13.) 'Speed' has come in recent years to refer to any amphetamine injected intravenously. (Brecher, Licit and Illicit Drugs (1972) p. 282.) Possibly the term has been further broadened to include, in colloquial usage in C.I.M., any drug or narcotic taken by injection.

As soon as the inmates learn through the prison grapevine that such 'off-the-record statements' may be used for impeachment purposes, no such statements will be forthcoming, and prison administrators will be deprived of information they may badly need for the proper operation of the detention facilities.

[109 Cal.Rptr. 638]At 2:05 defendant was taken to the dispensary where he was examined by William G. Ham, a registered nurse on the prison hospital staff. Ham had defendant strip. He found no sign of an injection, and observed that defendant's eyes, speech and gait were normal. He did not notice any blood.

He testified that the vial found in defendant's cell by Officer Wenzel is the usual package for demerol, which comes in vials of 25-100 milligrams; that 100 milligrams would have 'some euphoric effect'; that it would take 25-45 minutes to feel the effect of an injection of demerol, and one to one and a half hours for the full effect; that he would expect demerol to have very little effect on eyes, speech and gait.

Sometime on the day of the incident, Ezekiel Hernandez, an employee of C.I.M., tested a sample of the liquid from the eyedropper with a Valtox Kit, a field narcotics tester. The test indicated the presence of cocaine. The kit contained no specific test for demerol. Subsequent testing at the San Bernardino County Sheriff's Crime Laboratory by criminalist Sandra Rakestraw showed positively that the fluid in the eyedropper was demerol. Mrs. Rakestraw performed additional tests which showed that the Valtox Kit gives identical indications for cocaine, demerol, and about 20 other drugs.

When she examined it, the eyedropper was 1/4 to 1/3 full. She did not measure the quantity, but estimated it to be about 1/4 to 1/2 a cubic centimeter, which would amount to 12 1/2 to 25 milligrams of demerol. She did not test the contents of the vial because there was not enough in it to test. She estimated the volume of the vial as two cubic centimeters.

Mr. Ham had testified that 100 milligrams of demerol, as received at C.I.M., would occupy two cubic centimeters.

Most remarkable is the reliance by the majority upon language in Groshart v. United States (9th Cir. 1968), 392 F.2d 172, 180 to the effect that if they are permitted to do so, law enforcement officers are likely to conduct unconstitutional interrogations designed to elicit possible impeachment evidence. The Groshart case was decided three years before the United States Supreme Court decision in Harris in which this argument was answered as follows: 'Assuming that the exclusionary rule has a deterrent effect on Proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.' (Harris v. New York, supra, 401 U.S. at p. 225, 91 S.Ct. at p. 645, 28 L.Ed.2d at p. 4.) Moreover, viewing the evidence most favorably to the determination of the trial court, it is clear that Lieutenant Keser did not elicit the statements for use as impeachment evidence but to gain information necessary to the proper performance of his duties in connection with the administration of the prison.

Although defendant and two other inmates testified that Officer Wenzel had a special animosity toward him and had threatened to 'get him,' Wenzel denied any such threats and said he thought he got along well with defendant, but that he had to reprimand him at times to get back to his job.

Defendant's contentions on appeal will be considered in the order in which he raises them: (1) Admission into evidence of his statements to Lieutenant Keser was prejudicial error requiring reversal; (2) the trial court should have declared a mistrial because the prosecution deliberately suppressed defendant's statements to Keser; and (3) the evidence was insufficient to support the conviction.

EXTRA-JUDICIAL STATEMENTS

Defendant testified in his own behalf and denied the offense. On cross-examination, the district attorney asked if he had not told Lieutenant Keser that he had flushed the contraband down the toilet. Defendant said he did not remember such a statement.

Defendant's attorney objected to any evidence of conversations with defendant after he had invoked his Miranda rights, and moved for a mistrial on grounds of inadequacy of discovery, in that the prosecutor had not previously informed him of defendant's extra-judicial statements. The motion was denied.

The following morning the court held an in camera hearing on admissibility of the statements. Lieutenant Keser testified that he had warned defendant per Miranda; that defendant had said he understood his rights and that if he were to be charged with a felony, he had nothing to say; that he, Lieutenant Keser, was worried about the physical encounter between defendant and Mr. Wenzel and initiated an 'off-the-record' conversation to find out why the struggle occurred; that in his conversation defendant said he 'had to get rid of the stuff,' which was 'speed.' [109 Cal.Rptr. 639] Defendant testified that the conversation took place but denied making any of the admissions recited by Lieutenant Keser. The court ruled that the statements were admissible.

Keser testified as follows on direct examination by the district attorney at the in camera hearing:

In open court, Keser testified on rebuttal essentially as he had in chambers, Mr. Wenzel also gave his version of the conversation, which differed in detail, but not in any essential facts. Lieutenant Keser testified that although the conversation with defendant was held in confidence, he felt justified in violating that confidence because defendant's testimony in his own behalf tended to 'degrade or question the integrity' of the officers.

In response to questioning by the district attorney, Keser said:

Defendant's objection to the admission of his extra-judicial statement to Keser is predicated on two grounds: (1) violation of the rules set down in Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 and (2) voluntariness. All the witnesses to the statements--defendant, Keser and Wenzel--agreed that the statements were made immediately after defendant had been warned of his Miranda rights and had declined to talk. The statements, therefore, were inadmissible for any purpose unless the rule of Harris v. New York, infra, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, applies. (Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; People [109 Cal.Rptr. 640] v. Fioritto (1968) 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625.) The court's ruling necessarily implies findings that defendant's statements were voluntarily given and that the Harris rule applies. (Evid. Code, § 402, subd. (c).)

The Harris Rule

In Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, the Supreme Court held that incriminating statements made by an accused who had not been warned of his right to counsel were admissible to impeach him when he made contrary statements at his trial, where there was no claim that the statements were coerced or involuntary, and where the jury was instructed that the extra-judicial statements were to be considered only on the issue of defendant's credibility and not as evidence of his guilt, even though such statements would be inadmissible in the prosecution's case-in-chief under the rule of Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

It was early decided in California that statements elicited in violation of the rules of Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, which preceded the more definitive Miranda rules, were not admissible in evidence to impeach the testimony of the defendant given in his own defense. (People v. Green (1965) 236 Cal.App.2d 1, 16, 45 Cal.Rptr. 744.) The Green court reconsidered its rule after the Harris decision and, in an opinion by Justice Molinari, author of the Green opinion, concluded that Green had been superseded by Harris. (People v. Hayes (1971) 19 Cal.App.3d 459, 468-469, 96 Cal.Rptr. 879.)

The trial judge impliedly found, and the Attorney General urges on this appeal, that Harris governs the present case. For the reasons which appear below, we conclude that it does not.

In Harris the defendant was not warned of his rights. Defendant in the case under review was questioned, and made the damaging statements, after he had asserted his right to remain silent. The distinction is crucial. It is entirely conceivable (the Harris court so found) that a person who has not been warned of his right to remain silent may nevertheless give a voluntary statement to the police, but 'any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.' (Miranda v. Arizona, supra, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 723.)

In People v. Fioritto, supra, 68 Cal.2d 714, 719, 68 Cal.Rptr. 817, 44 P.2d 625, the California Supreme Court, quoting at length from Miranda, held that statements made by an accused in response to police-initiated questioning after the accused had once invoked his Fifth Amendment right to silence or his Sixth Amendment right to counsel may not be used against him. (See also People v. Ireland (1969) 70 Cal.2d 522, 532-537, 75 Cal.Rptr. 188, 450 P.2d 580.) The Attorney General argues that since Fioritto was based on Miranda, the Harris rule applies as much to statements elicited in violation of Fioritto as to statements by persons who have not been properly warned as required by Miranda.

Some support for this argument can be found in the language of two recent Court of Appeal cases, People v. Peters (1972) 23 Cal.App.3d 522, 531-532, 101 Cal.Rptr. 403, and People v. Deutschman (1972) 23 Cal.App.3d 559, 565, 100 Cal.Rptr. 330, which held that there is no distinction for purposes of appealability, so that where an accused fails to raise a Fioritto question in [109 Cal.Rptr. 641] the trial court, he may not do so for the first time on appeal. The language of these cases is not free from ambiguity and, insofar as they may stand for the proposition that a voluntary confession given in absence of Miranda warnings is to be treated for all purposes in the same way as a confession obtained by questioning continued after the accused has invoked his Miranda rights, we decline to follow them.

'The apparent thrust of Fioritto and Randall [infra] is that any statement or confession obtained by police interrogation after a defendant has invoked his constitutional right to remain silent is not voluntary, and, if admitted over objection, results in prejudicial error. There is nothing in these cases that suggests that a Fioritto violation suffers from the same infirmity inherent in the coerced confession.' (People v. Peters, supra, 23 Cal.App.3d 522, 531, 101 Cal.Rptr. 403, 409.) The second sentence of this passage is difficult to reconcile with the first, unless a constitutional distinction is to be drawn between statements that are coerced and statements that are involuntary but not coerced, a distinction which we believe is untenable. (See, e. g., People v. MacPherson (1970) 2 Cal.3d 109, 115, 84 Cal.Rptr. 129, 465 P.2d 17.)

We intimate no view on the narrow question decided in those cases, which is not now before us.

The distinction has been recognized by the California Supreme Court: 'After the initial assertion of the privilege, the defendant is entitled to be free of police-initiated attempts to interrogate him. Any statements made by a defendant in response to such questioning cannot be characterized as voluntary. . . . It is just such police-initiated interrogation that Fioritto and Ireland hold cannot produce voluntary waivers or spontaneous statements.' (Original emphasis.) (People v. Randall (1970) 1 Cal.3d 948, 958, 83 Cal.Rptr. 658, 664, 464 P.2d 114, 120. See also Ibid. at 955 (distinction between statements made willingly after being advised, and statements made after invoking the privilege) and 956, fn. 7 (distinction between a change of mind prompted by the defendant himself or his attorney and a change of mind induced by further police interrogation--the present case).)

The Harris opinion asserts that unavailability of the accused's statements in the prosecution's case-in-chief will assure sufficient deterrence to law enforcement officers. (Harris v. New York, supra, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1, 4.) This may be so in the case of the unwarned suspect, but permitting use for impeachment or rebuttal, as here, of statements made by the accused in response to continued questioning after he had invoked his constitutional privilege would be an open invitation to police to continue their interrogation until the accused confesses or makes damaging admissions. As the United States Circuit Court of Appeals observed three years before the Harris decision, 'There is little doubt but that the great majority of the law enforcement officers of our Circuit strive to comply with the mandates of the Constitution. At the same time, they are engaged in a continuing, frustrating battle against lawlessness. If authorized to do so, they could not fairly be criticized for conducting unconstitutional interrogations designed to elicit possible impeachment evidence.' (Groshart v. United States (9th Cir. 1968) 392 F.2d 172, 180, quoted in Comment, 11 Santa Clara Lawyer, 440, 443 (1971). See also Riddell v. Rhay (1971) 404 U.S. 974, 975-978, 92 S.Ct. 336, 337-339, 30 L.Ed.2d 291, 292-293 (Douglas, J., dissenting from denial of certiorari).)

We conclude, therefore, that the present case is not governed by Harris v. New York, supra, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1. Defendant's statements to Lieutenant Keser were inadmissible and should have been suppressed. (People v. Fioritto, supra, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625.)

Voluntariness

As an alternative ground for decision, we find that defendant's statements were made involuntarily.

[109 Cal.Rptr. 642]One of the bases for the Harris decision was that harris had made no claim that his statements were coerced or involuntary. (Harris v. New York, supra, 401 U.S. 222, 224, 91 S.Ct. 643, 645, 28 L.Ed.2d 1, 4.) We have previously recognized that Harris cannot be read as sanctioning the use of involuntary statements for impeachment or for any other purpose. (People v. Rice (1971) 16 Cal.App.3d 337, 344, 94 Cal.Rptr. 4. See also People v. Harrington (1970) 2 Cal.3d 991, 999, 88 Cal.Rptr. 161, 471 P.2d 961; People v. Underwood (1964) 61 Cal.2d 113, 37 Cal.Rptr. 313, 389 P.2d 937; People v. Rodriguez (1943) 58 Cal.App.2d 415, 418 et seq., 136 P.2d 626.) Use in a criminal trial of an involuntary confession is a denial of due process in violation of the Constitutions of the United States and California. (People v. Sanchez (1969), 70 Cal.2d 562, 571, 75 Cal.Rptr. 642, 451 P.2d 74.)

There was some indication in the record that Harris did in fact raise the issue both in the trial court and in United States Supreme Court. (Dershowitz and Ely, Comment: Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L.J. 1198, 1201 et seq. (1971).) However that may be, the Supreme Court's opinion must be taken to mean what it says.

Although the trial court's determination of voluntariness is entitled to great weight, and will not be lightly overturned on appeal, it is the appellate court's duty to re-examine the uncontradicted facts to determine independently whether or not the accused's extra-judicial statements were voluntarily obtained. (People v. Sanchez, supra, 70 Cal.2d 562, 571, 75 Cal.Rptr. 642, 451 P.2d 74; People v. Daniels (1969), 1 Cal.App.3d 367, 374, 81 Cal.Rptr. 675.) The performance of this duty cannot be foreclosed by the finding of a court, or the verdict of a jury, or both. (Payne v. Arkansas (1958), 356 U.S. 560, 562, 78 S.Ct. 844, 847, 2 L.Ed.2d 975, 978.)

The burden is on the prosecution to show that the statements were voluntarily given without previous inducement, intimidation or threat. (People v. Sanchez, supra, 70 Cal.2d 562, 572, 75 Cal.Rptr. 642, 451 P.2d 74.) The statements are inadmissible if they were made under 'the slightest pressure' by the authorities (People v. Berve (1958) 51 Cal.2d 286, 291, 332 P.2d 97), or if there was 'compulsion or inducement of any sort' (Haynes v. Washington (1963), 373 U.S. 503, 513, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513, 521), or if the police used 'any direct or implied promises, however slight,' or 'any improper influence.' (Malloy v. Hogan (1964), 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653, 659.) Whether the statements were obtained by coercion or improper inducement can be determined only by an examination of the entire record and the totality of the circumstances. (Haynes v. Washington, supra, 373 U.S. 503, 513, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513, 521; People v. Sanchez, supra, 70 Cal.2d 562, 572, 75 Cal.Rptr. 642, 451 P.2d 74; People v. Daniels, supra, 1 Cal.App.3d 367, 374, 81 Cal.Rptr. 675.)

Under the 'totality of the circumstances' test, defendant's statements must be held to be involuntary as a matter of law. Here, as in Haynes, there was no claim that the defendant was physically abused, deprived of food or rest, or subjected to prolonged periods of uninterrupted questioning. (See Haynes v. Washington, supra, 373 U.S. 503, 504, fn. 1, 83 S.Ct. 1136, 138, 10 L.Ed.2d 513, 516.) On the other hand, the uncontradicted evidence was that: (1) Defendant was an inmate in a state prison, being questioned by a senior officer of the custodial force with a probable felony charge facing him; (2) he had unequivocally asserted his right to remain silent; (3) he consistently denied possession of the paraphernalia recovered by Mr. Wenzel from the corridor floor; and (4) he was told that the conversation would be 'off the record.'

On the listed circumstances, those that most influence our judgment are the first and last. Defendant's interrogator was a [514 P.2d 643] [109 Cal.Rptr. 643] person who had tremendous power to influence, for better or for worse, his life in prison and his future by, for example, granting or withholding privileges, imposing light or arduous conditions of confinement, making favorable or unfavorable entries in official records, or by favorable or unfavorable recommendations to the Parole Board (defendant's scheduled parole date was only a few months after the incident). (See clutchette v. Procunier (N.D. Calif.1971), 328 F.Supp. 767, 777-778.) $The most reasonable interpretation of the term 'off the record' is that defendant believed, and was expected to believe, that any remarks he chose to make would be kept in strict confidence and would not be used against him in court. In this respect, the case is similar to People v. Johnson (1969), 70 Cal.2d 469, 74 Cal.Rptr. 889, 450 P.2d 265, where a conviction was reversed because, among other things, of admission into evidence of damaging statements made by the accused to a district attoney's investigator, who told him 'this had to be a free and voluntary thing, that anything he said could be used against him, that he didn't have to say anything if he didn't wish, that the evidence obtained was not admissible in court, but it was an investigative lead, did.' (Original emphasis.) (Ibid., p. 474, 74 Cal.Rptr., p. 892, 450 P.2d, p. 268.)

In view of Keser's power over defendant, the invitation to talk off the record could reasonably be interpreted as an implied promise or more favorable treatment if he did talk. (See People v. Barric (1874) 49 Cal. 342, 345 (sheriff told prisoner, 'It will be better for you to make a full disclosure') and other cases cited in Witkin, California Evidence (2d ed. 1966) § 482, p. 444.) Any such inducement renders a confession inadmissible. (People v. Carr (1972) 8 Cal.3d 287, 296, 104 Cal.Rptr. 705, 502 P.2d 513.)

Defendant also suggests that Keser's offer to talk 'off the record' could be construed as an implied promise not to prosecute defendant, but to impose only intraprison discipline--that is, an offer of immunity. We think that without more specific language this interpretation is probably not reasonable.

We do not discuss the cases cited by both sides on the subject of statements obtained by trickery or deception because the facts of the present case do not show deliberate fraud on the part of the questioning officer.

The suggestion by the prosecution that Lieutenant Keser's interrogation 'off the record' was designed not to elicit incriminting responses but only to get to the bottom of the physical encounter is disingenuous. The physical encounter itself, if Officer Wenzel's version be accepted, would constitute an offense. (Pen.Code, § 4501.5)

The circumstances of defendant's statements are strongly reminiscent of the following portion of the Miranda opinion: 'To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect's guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it.' (Miranda v. Arizona, supra, 384 U.S. 436, 450, 86 S.Ct. 1602, 1615, 16 L.Ed.2d 694, 709-710.)

The Attorney General asserts that the legitimate and compelling interest of the prison officials in determining the reasons for physical resistance by an inmate outweighed defendant's Fifth Amendment right against self-incrimination, citing People v. Miller (1969) 71 Cal.2d 459, 78 Cal.Rptr. 449, 455 P.2d 377, cert. den. 406 U.S. 971, 92 S.Ct. 2417, 32 L.Ed.2d 672, and People v. Paton (1967) 255 Cal.App.2d 347, 62 Cal.Rptr. 865. These cases involved the omission of Miranda warnings before non-custodial interrogation which was directed in each case not toward incriminating responses but toward obtaining information needed immediately to save human life. They are not authority for the Attorney General's untenable position.

[109 Cal.Rptr. 644]On the other hand, nothing in the record compels an inference that Lieutenant Keser had bad motives or did anything other than what he thought his duty required. We may infer from his testimony that at the time of the off-the-record conversation with defendant, he did not in fact intend to use it against the defendant in court.

Nevertheless, whatever the motives behind such interrogations, we condemn the practice of 'off-the-record' conversations with inmates accused of criminal offenses. Unless the prosecution can meet its heavy burden of proving that any such conversation was initiated by the inmate himself, either of his own free will or on advice of counsel, any statements elicited in the course of such conversations must be deemed involuntary and inadmissible in evidence for any purpose in a trial on the merits of a declarant accused of a criminal offense.

We hold that, in the circumstances of this case, the use of his extra-judicial statements to impeach or rebut defendant's testimony denied him his constitutional rights against self-incrimination and to due process of law (U.S.Const., Amends. V and XIV; Cal.Const. art. I, § 13), rights which he did not forfeit when he forfeited his liberty by commission of the crime for which he was imprisoned. (See Jackson v. Bishop (8th Cir. 1968) 404 F.2d 571, 576; Clutchette v. Procunier, supra, 328 F.Supp. 767.)

The introduction into evidence of an involuntary confession compels reversal regardless of other evidence of guilt. (In re Cameron (1968) 68 Cal.2d 487, 503, 67 Cal.Rptr. 529, 439 P.2d 633; People v. Mattesoon (1964) 61 Cal.2d 466, 469, 39 Cal.Rptr. 1, 393 P.2d 161; Haynes v. Washington, supra, 373 U.S. 503, 518, 83 S.Ct. 1336, 1345, 10 L.Ed.2d 513, 523-524.) The Attorney General urges that defendant's statements were admissions and not confessions, and therefore subject to the harmless error rule. (People v. Powell (1967), 67 Cal.2d 32, 52, 59 Cal.Rptr. 817, 429 P.2d 137.) We need not decide this subsidiary question because, assuming that the statements did not rise to the level of a full confession, we cannot say that their admission into evidence was harmless error, since the evidence against defendant, though substantial, was not overwhelming, and mostly circumstantial. But for the illegally-admitted statements, the testimony given by defendant and his witnesses might have been sufficient to raise a reasonable doubt as to his guilt in the minds of the jurors. (See People v. Milton (1969), 270 Cal.App.2d 408, 416, 75 Cal.Rptr. 803; Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

'A confession is a declaration by a person that he is guilty of a crime with which he is charged. It differs from an admission of an accused in that the confession is an express and complete acknowledgment of guilt of the crime, while an admission may be either express or implied, and is merely an acknowledgment of some fact which tends to prove guilt.' (Witkin, California Evidence, (2d ed. 1966) § 474, p. 436.)

In view of our conclusion that the judgment must be reversed, we need not reach defendant's contention that the trial judge should have given sua sponte an instruction limiting the jury's consideration of the statement to the issue of defendant's credibility as a witness.

PROSECUTORIAL MISCONDUCT

Defendant accused the prosecutor of misconduct in (1) holding defendant's statements to rebuttal instead of introducing them in his case-in-chief (People v. Rodriguez, supra, 58 Cal.App.2d 415, 418-419, 136 P.2d 626), and (2) suppressing evidence of the statements.

The statements could not have been introduced in the prosecution's case-in-chief, because they were clearly inadmissible under People v. Fioritto, supra, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625. Moreover, there was no showing that the prosecutor had any knowledge of the statements [109 Cal.Rptr. 645] before defendant testified in his own behalf.

Whenever the prosecution has knowledge of any oral statements made to the police by an accused, such statements must be revealed to the defense in discovery. (People v. Campbell (1972) 27 Cal.App.2d 849, 858, 104 Cal.Rptr. 118.) It may be inferred from the record that the district attorney had no knowledge of the statements before the trial. In view of our holding that the statements must be suppressed, we do not reach defendant's contention that knowledge by the police is equivalent to knowledge by the district attorney in the circumstances of the present case.

SUFFICIENCY OF THE EVIDENCE

Defendant contends that the evidence before the court was insufficient to sustain his conviction on either court. We disagree. The evidence recited in the first part of this opinion, disregarding all defendant's extra-judicial statements, was sufficient to support the jury's verdict. Nothing in People v. Showers (1968) 68 Cal.2d 639, 68 Cal.Rptr. 459, 440 P.2d 939 (constructive possession of contraband) or People v. Leal (1966) 64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665 (usable quantity of a narcotic) compels a different conclusion.

The judgment is reverse.

TAMURA, J., concurs.

KAUFMAN, Associate Justice (dissenting).

I am compelled to dissent.

With one remarkable exception discussed, infra, the majority has accurately set forth the facts and correctly holds that there is substantial evidence to support defendant's conviction as to both counts 'disregarding all defendant's extra-judicial statements.' (Page 645, ante.) However, by formalistic adherence to certain rubrics in cases decided prior to Harris v. New York (1971), 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 and by violating fundamental principles of appellate review, the majority affords a new trial to a defendant whose guilt is supported by substantial evidence and whose trial testimony was obviously found perjurious by the jury. This result is reached on the basis of an asserted error in the introduction by the People in rebuttal of defendant's perjurious testimony of statements made by him which, far from constituting a confession, were barely material to the issue of guilt or innocence of the offenses with which he was charged.

I cannot in good conscience subscribe to such a result, the avoidance of which was the precise purpose of the United States Supreme Court in Harris. 'Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. [Citations omitted.] Having voluntarily taken the stand, [defendant] was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. [Fn. omitted.] Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment. [p] The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.' (Harris v. New York, supra, 401 U.S. at pp. 225-226, 91 S.Ct. at pp. 645-646, 28 L.Ed.2d at pp. 4-5.)

Nature of Defendant's Statement

While, I, like the majority, do not approve the practice of taking 'off-the-record statements' on violation of Miranda 1 or Fioritto 2 principles with the [109 Cal.Rptr. 646] intention of utilizing such statements for impeachment purposes and, indeed, while I believe such a procedure to be counterproductive 3, the question is not whether I nor, indeed, whether the majority approve of the taking of such statements. The question is whether they are admissible in evidence in the People's rebuttal case to ensure the integrity of the fact-finding process and expose perjury. 4 In the case at bench, the latter question must be answered in the affirmative.

The statements of defendant are treated by the majority as equivalent to a confession or at least a very damaging admission. This is accomplished by the astounding and unprecedented appellate technique of speculating that in CIM the term 'speed' may refer to demerol. (See majority opinion, fn. 3.) There is not a scintilla of evidence to support such speculation. As is correctly pointed out in the first portion of footnote 3 of the majority opinion, the term 'speed' is a slang expression that usually refers to certain chemical stimulants, whereas demerol is a narcotic depressant. Defendant was charged with possession of demerol and possession of narotics paraphernalia. In his statement, even as reported by Lieutenant Keser, defendant consistently denied possessing the paraphernalia in which the demerol was found and instead indicated that he was attempting to get rid of 'speed.' Thus, viewing the statement most favorably to the determination of the trial court, defendant's statement was not a confession and, indeed, not an admission except to the extent it admitted defendant's presence and the scuffle with Officer Wenzel, matters which were undisputed in any event. Thus viewed, defendant's statement was in substance exculpatory in respect to the charges against him.

Nonprejudicial Error

Since defendant's statement was not a confession, but at most an admission, its introduction into evidence was not reversible error per se (People v. Powell, 67 Cal.2d 32, 51-52, 59 Cal.Rptr. 817, 429 P.2d 137; People v. Rice, 16 Cal.App.3d 337, 344, 94 Cal.Rptr. 4), and I am convinced beyond a reasonable doubt that the jury would have reached the same verdict even if defendant's statement had not been introduced into evidence on rebuttal. (Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; see People v. Rice, supra.)

The entire trial in this case amounted only to a contest of credibility between defendant and Officer Wenzel. Officer Wenzel testified he saw the empty demerol vial in defendant's cell; that after the struggle with defendant he found the paraphernalia close by in the hallway adjoining defendant's cell; and that he saw no other persons in the hallway at any pertinent time. Defendant's testimony was in substance a denial that the demerol container was in his cell and a denial that he possessed [109 Cal.Rptr. 647] the paraphernalia containing demerol found in the hall outside his cell. As previously indicated, defendant's statement to Lieutenant Keser had nothing to do with either the possession of demerol or the possession of narcotics paraphernalia and thus had little bearing on defendant's innocence or guilt. It is obvious that the jury credited the testimony of Officer Wenzel and did not believe defendant's story, and I am convinced the result would have been precisely the same had defendant's statement not been introduced into evidence for, as already stated, the statement barely related to the offenses with which he was charged.

Defendant's Statement was Properly Received in Rebuttal

The Statement Was Not Involuntary.

As an alternative basis of decision, the majority holds, contrary to the finding implied in the trial court's determination (Evid.Code, § 402, subd. (c)), that, on a factual basis, defendant's statement was involuntary. This conclusion not only ignores the proper function of an appellate court in reviewing a trial court's determination of voluntariness, but, worse yet, it is incorrect.

The rules governing appellate review of the voluntariness of a confession are correctly distilled in People v. Daniels, 1 Cal.App.3d 367, 374-375, 81 Cal.Rptr. 675, 679, an opinion of this court authored by Mr. Justice Tamura. 'On appeal, the trial judge's findings on the question of waiver of rights and voluntariness will not be set aside unless they are 'palpably erroneous.' [Citations.] It is not the function of the reviewing court to resolve conflicts in the evidence, to reweigh it, or to make an independent determination as to whether the prosecution has sustained its burden beyond a reasonable doubt. [Citations.] It is the duty of an appellate court, however, to make an independent examination of the uncontradicted evidence to determine whether a confession has been obtained in compliance with Miranda requirements and was voluntarily made. [Citations.] Those issues must be reviewed in light of the whole record and 'the totality of circumstances.' [Citations.]' (See also People v. Lara, 67 Cal.2d 365, 392, 62 Cal.Rptr. 586, 432 P.2d 202; People v. Lyons, 18 Cal.App.3d 760, 774-775, 96 Cal.Rptr. 76.)

Except for a legal question concerning voluntariness discussed in the next section, there can be no question but that, on a factual basis, the trial court's determination that defendant's statement was voluntarily made must be upheld on this appeal. Defendant did not testify that his statement was involuntarily made or that it resulted from any promise, express or implied, of leniency nor, indeed, that he was induced to make the statement by Lieutenant Keser's indication that the statement would be 'off-the-record' or confidential. It was defendant's testimony that he did not make the statements attributed to him by Lieutenant Keser. Thus, except for the above-mentioned question of law, the uncontradicted evidence supports the trial court's determination of voluntariness, and that determination cannot possibly be said to be 'palpably erroneous.'

Applicability of Harris Decision.

The majority refuses to apply the Harris decision, attempting to distinguish the case at bench from Harris by the fact that here the defendant was advised of his right to remain silent and indicated his inclination to do so, whereas in Harris apparently, no warning was given at all. The majority asserts that it follows from this distinction that the statement in the case at bench must have been involuntary, whereas in a Harris situation it is altogether possible that the statement elicited will be voluntary. In support of its position, the majority quotes the rubric from Miranda v. Arizona, supra, 384 U.S. at p. 474, 86 S.Ct. at p. 1628, 16 L.Ed.2d at p. 723 that, 'any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise,' and without discussion rejects as untenable any distinction between an 'involuntary' statement [109 Cal.Rptr. 648] obtained in violation of Miranda or Fioritto principles and a 'coerced' statement. (See majority opinion, fn. 8.) Of course, precisely this distinction between a statement 'involuntary' because obtained without compliance with Miranda or Fioritto and a 'coerced' statement obtained by threats, force, or promises of leniency has been recognized by numerous well considered opinions. (See e. g., In re Lopez, 62 Cal.2d 368, 372-378, 42 Cal.Rptr. 188, 398 P.2d 380; People v. Peters, 23 Cal.App.3d 522, 530-532, 101 Cal.Rptr. 403; People v. Hayes, 19 Cal.App.3d 459, 468-469, 96 Cal.Rptr. 879.) The distinction is crucial. While a statement obtained in violation of Miranda or Fioritto is classified as 'involuntary,' it does not suffer from the same lack of trustworthiness as does a statement obtained by threat, force or promise of leniency. (See In re Lopez, supra, 62 Cal.2d at pp. 377-378, 42 Cal.Rptr. 188, 398 P.2d 380; People v. Peters, supra, 23 Cal.App.3d at pp. 531-532, 101 Cal.Rptr. 403; People v. Hayes, supra.) It is this distinction, I trust, that the Supreme Court had in mind in Harris v. New York, supra, 401 U.S. at p. 224, 91 S.Ct. at p. 645, 28 L.Ed.2d at p. 4 in stating: 'It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.' (Emphasis supplied.)

The trustworthiness of defendant's statements in the case at bench satisfies legal standards. As I have previously pointed out, the trial finding that, factually, the statement was voluntarily made is supported by the uncontradicted evidence. Defendant did not testify that the statement was induced by threat, force, or promise of leniency. On the contrary, he testified that he had a conversation with Lieutenant Keser, but he denied making the statements attributed to him by Lieutenant Keser. Moreover, if in fact the statement was made 'off-the-record' as Lieutenant Keser testified, there would have been no reason whatever for defendant to make a false statement, and the trustworthiness of the statement he made would seem to be assured.

The distinction the majority attempts to make between the case at bench and Harris is spurious. The distinction between 'coerced' statements and 'involuntary' statements rejected by the majority is a valid, indeed a vital, distinction, and the rationale of Harris should apply.

Defendant's other contentions are without merit, and I would affirm the judgment.

'And after [reading the Miranda warning] I asked him if he understood the rights and asked him to--if there is any questions, to ask them, and I tried to explain it to him, and, 'Having these rights in mind, do you wish to talk to us now?'

'Q. How did he answer this?

'A. He explained to me then--again he asked if he was being charged with a felony and I said, 'You probably will be.'

He said, 'Well then, I don't have anything to say.'

'Q. Okay.

Was there any further conversation?

'A. Yes, After that Mr. Nudd--Mr. Nudd and I have known one another for quite a while, or at least as long as I have been down there, and I was more concerned with the physical encounter, and I told him off the record--I asked him, I said: 'You know the thing that bothers me the most is you are out of character. The physical encounter, had anyone been injured, it could have cost you more.'

And I said, 'Why,' you know, 'why the physical encounter?'

He said, 'Well, I like Mr. Wenzel; I wouldn't hurt him but I had to get rid of this stuff.'

I said, 'Was it heroin or what?'

He said, 'No, it wasn't heroin; it was speed.'

And that is all that was said.'

Defendant's attorney then cross-examined Keser:

'Are those the exact phrases or exact words that he said?

'A. To sit here and swear that he said anything other than 'speed' and the fact he wouldn't hurt Mr. Wenzel--the only reason that--specifically, I couldn't detail the exact phrases that he used other than the fact he did use 'speed'.

'Q. Did he say that he tried to flush the commode?

'A. Yes, he did.

Let me think a minute.

He said that he had to get rid of the stuff, and that is when I asked him about was it worth a physical encounter with Mr. Wenzel and possible injury.

'Q. Did he answer that?

'A. And he explained to me that he wouldn't hurt Mr. Wenzel, that he just needed to get rid of the stuff.'

'When we are off record like that, I have--unless it is going to be harmful to someone or another felony going to be committed, or whatever, and if I have the rapport with the inmate, I don't write anything down; it is on [sic] off record because of the respect we both have for one another. When the inmate or the other person then uses information to degrade or question the integrity of the officer and make him look like he is a liar or whatever, then I use the information off record. It is kind of, in the layman's terms, respect begets respect, integrity begets integrity, and if he violates the integrity off record, the code, you might call it, then I violate it also.

'Q. Is this sort of an understanding within the prison?

'A. I can't say that. Each man would work different. That is my mode of operation.'

The scope of Harris in California has not yet been established, but there has been a tendency to interpret that decision narrowly. (See People v. Taylor (1972) 8 Cal.3d 174, 184-185, 104 Cal.Rptr. 350, 501 P.2d 918; People v. Walker (1972) 29 Cal.App.3d 448, 454, fn. 2, 105 Cal.Rptr. 672; People v. Rice, infra, 16 Cal.App.3d 337, 344, 94 Cal.Rptr. 4.)


Summaries of

People v. Nudd

California Court of Appeals, Fourth District, Second Division
Aug 21, 1973
33 Cal.App.3d 1052 (Cal. Ct. App. 1973)
Case details for

People v. Nudd

Case Details

Full title:PEOPLE of the State of California, Plaintiff and Respondent, v. Benjamin…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Aug 21, 1973

Citations

33 Cal.App.3d 1052 (Cal. Ct. App. 1973)
109 Cal. Rptr. 634