People v. Rucker

No. 20682. Jan. [Crim. 1980.] PEOPLE,

THE Plaintiff and Respondent, RUCKER, WILLIAM ELLIOTT Defendant and Appellant. Counsel Halvonik,

Quin Defenders, Denvir and Paul State Public under appoint- Jeffers, ment the Court of Clifton R. Chief Assistant Appeal, State Defender, Feldman, Public B. III and Linda Bergesen E. State Deputy Defenders, Public for Defendant and Appellant. S. Ruffin

Roger as Amicus Curiae behalf on of Defendant and Appellant. General,

Evelle J. Younger and George Jack Deukmejian, Attorneys R. Winkler, General, O’Brien, Chief Assistant Edward P. Attorney Assis- General, tant Attorney Gillette, W. Eric Collins and Dane R. Deputy General, Attorneys for Plaintiff and Respondent. (Santa Roden, M. Barbara), District

Stanley Patrick Attorney J. Franklin, and Gerald McC. District McKinley Deputy as Attorneys, Amici Curiae on behalf Plaintiff Respondent. of and Opinion

BIRD, C. J.This raises an issue appeal important concerning whether the admission of of evidence two interviews between and law appellant of dimin a defense to rebut officers, was offered which enforcement (U.S. self-incrimination against the privilege violates ished capacity, first I, Const., 15) principles and the Amend.; art. Const., Cal. 5th § Arizona Miranda enunciated S.Ct. A.L.R.3d 974].

I a a clerk at 7:30 31, 1976, p.m. and On some time between July rob- killed a during was and in Redwood shot City See’s Store Candy circumstantial was strong but there were no eyewitnesses, There bery. contested issue The only the fatal shot. evidence that fired appellant of intent at time was appellant’s for decision presented jury the incident. first of guilty trial was that appellant at prosecution’s theory afore- was committed with malice murder since the either

degree killing deliberate, or was com- willful, manner in a thought premeditated a evidence was introduced mitted in the course of Extensive robbery. suf- at time of the killing, defense establish that and his from alcohol fered from diminished since intoxication capacity malice, premeditate, other it for him to harbor impossible made drugs deliberate, underly- to commit or form the intent necessary specific evidence, indicated This which trial ing felony robbery. judge defense, amounted to an “excellent” included the testimony lay test which showed expert witnesses as well as the results of blood time the offense was between appellant’s blood-alcohol level 0.25 0.30 percent.1 to the of prosecution capac-

The rebut defense diminished attempted ity evidence of with two by introducing appellant two interviews by officers and a officer. The circumstances police probation surrounding the fragmented prosecution interviews are somewhat since the success- fully to for an objected repeated requests evidentiary the prosecutor on of this evidence. The claimed hearing admissibility that the of the evidence was “not an issue” the legality obtaining since 1At percent, presumed a blood-alcohol level to be of 0.10 an automobile driver Code, (See 23126.) under the influence of At and alcohol. Veh. levels between 0.25 § percent, percent persons (Alcohol 0.30 grossly about 98 of all are intoxicated. & The Driver, A.M.A., Impaired Medicolegal 10-11.) pp. on Com. Problems mean approximately percent. level in blood-alcohol fatal alcohol overdose cases is 0.40 (Id., 12.) at “to

evidence was be used for limited only the purpose to jury] [the determine the mental or the processes responsiveness and of the clarity Defendant.” The trial court and refused agreed to permit evidentiary hearing.

Two interviews are at issue here. The first involves a tape-recorded interview with appellant conducted Officer Bob Ser- Petitjean Nelson Benton the of geant p.m. at 9:47 on the homicide. An evening edited of this version was to the and a tape transcript pro- played jury vided. The labeled the session the as prosecution with officers a “booking interview, interview.” On five occasions appellant the during either to a requested “talk to On lawyer” phone or make a call. each occasion, minute,” he was either wholly told to wait ignored, “just told first, had to he be “booked” can’t informed that “I let do that you I until talk the detective.”2 at appellant most indicated a Although address, reveal willingness to his name and he required was to divulge number, birth, his virtual life history: phone his of of age, year city birth, color, as on height, weight, eye eye color recorded his birth certi- ficate, present employment, occupation (“printer”), type printer, length of as how printer, career where his mother many living parents, lived, number, name, with, her phone appellant his brother’s who lived school, location, the name of his its the of his high year graduation, service, served, whether he in the long was how he where he was sta- tioned, where he did his what of work basic kind he did training, machinist, he was military, why discharged, where he worked as a school, where he started where he lived when he high started high school, from, how he long spent school he he high graduated why Force, Air went into the when he was where he was dis- discharged, from, charged when he where he went to what college, went college, took, law, courses he whether he name college was studying with whom he attorney studying. (and One portion of the interview been tape transcript) had edited to delete reference to certain matters.3 Those deletions were set forth in the manner in the jury following transcript: 2There police is also an indication to the his had communicated desire lawyer prior to consult with a on more than one to this the be occasion interview. At interview, ginning having rights certain if been advised of Miranda and asked he occurred,” stated, “Well, telling you to talk of what what I’ve been “wish[ed] you (Italics added.) picked up, lawyer....” when me I would talk ato [sic] deleted, although prosecutor repre 3There is no evidence as to what matters were to the court questions” sented trial the deletions involved “inadvertent appellant’s “prior officers about record.” year only stayed you in the Air Force? a it How “Benton: My duty assign- general discharge. got first Cause I “Rucker: got wrong place into to send a kid. I and it’s the Thailand ment was it, you know. you use? still Do

“Benton: Yep. see? You want to

“Rucker: you you just asking use now. No, if I’m “Benton: Sure, time. all the “Rucker: time? was the last When

“Benton: morning. This

“Rucker: About what time?

“Benton: (unreadible). Deleted. About ten “Rucker: Deleted. “Benton: Deleted.

“Rucker: Deleted.

“Benton: Deleted.

“Rucker: Deleted.

“Benton: This beef I can beat now I’m this beef. Deleted. on So “Rucker: easy. Deleted.

“Benton: Deleted.

“Rucker: Deleted.

“Benton: Deleted. Then I’ve been and then I’ll printing lately get “Rucker: under the table. money alright.” Doing

The second interview at issue involves the of appellant’s testimony officer, probation Gerald O’Donnell. O’Donnell had been summoned to the a district at jail by attorney about 1:30 a.m. of the deputy morning the following homicide. O’Donnell was asked to talk to “simply [appel- form and a whether he in judgment was a acting significantly lant] different fashion than previous experience. . . . [in O’Donnell’s] was the capacity used.” O’Donnell was told phrase that [Diminished appellant had been “advised rights,”4 of his and O’Donnell did not him- self attempt appellant of Miranda to advise his nor seek a rights waiver Instead, of those rights. he told appellant “this was a immediately very serious case” or are with a “you murder case.” charged O’Donnell was allowed to that “did not testify appellant replied he do it” and that he had an alibi for the time in question.

O’Donnell “went on with appellant about 20 minutes and talking” stated that was to his appellant responsive other “questions.” na- these ture of was the questions responses not revealed at trial.5 The evidence of the two interviews was admitted into in evidence the prosecution’s rebuttal. The court instructed the in the jury following manner:

“Ladies and Gentlemen. . .You be have to in very careful your mind how you are to listen to going both tape next wit- ness What I am to going give is you limiting [O’Donnell]. instruction. 4Presumably rights” pertained the reference to “his by to the advisement Officer Petitjean time, beginning of the first interview. At appellant that refused to rights.

waive his Apparently, O’Donnell neither inquired nor was appel advised as to unwillingness rights.” lant’s waive “his to testimony, to prosecutor judge 5Prior O’Donnell’s told that O’Donnell “has any been cautioned not directly indirectly prior to allude The prosecu offenses.” tor also stated that and appellant charges, O’Donnell “discussed the that but will not be referred to.” did testify appellant drinking, O’Donnell volunteered been that he had “but I didn’t go interrogating ask I didn’t him... want and be him about this offense.” Appel- precluded prosecutor’s objection lant ascertaining from why O’Donnell felt need determine whether had been “Mirandized” when O’Donnell was going “interrogate” him. later, As be prosecution’s position will seen it statement about spontaneous was a one. alibi “The his District is not or Attorney offering tape subsequent witness will about some statements who be evidently testifying him It is not offered for you made to Defendant. by being It consider the truth of those statements. is You very important. are listen decide whether were true not to to the statements to they not, whether statements or bad statements or however good you want to look That are at them. is not offered why they being You must not think you. aspect about that it. offered, are

“They to the District being according Attorney’s Court, representations to the to show the mental used processes by Defendant at the time. particular

“The District that he is Attorney’s argument being using attack the defense of diminished which has been raised capacity line, it Defendant. So is a fine but I are in- fairly know you telligent I am sure will jury. be able to this. you accept “He is it not using for the truth of the statements in the but tape, voice, intonation, process, the thought clarity what- ever you can it and get second, from that will also to the apply witness, next the same there. thing applies “It is not important what was said but whether or not there was a thought process that will assist in you deliberations. im- your Very portant. So remember that.

“On the tape itself—we listened to this is a yesterday—it very very poor tape, hard very to understand and that I have why sug- gested be transcript so that prepared can read as you along you are That is what I listening. and with that doing yesterday you can it pick said, what is up how it is being said. There are being deletions on the Certain tape. were not things relevant to the mat- ters before So I you. have ordered those sections particular deleted from the tape. You will see on your transcript where it will say ‘deleted’ and the will tape say ‘deleted.’ So there are certain por- tions that were not relevant and we did take out. You are not to about or worry consider those.”

The jury returned verdicts of first finding guilty degree murder and first degree and the robbery, was found to be allegation

true that appellant used a firearm the commission of these offenses. (Pen. Code, 187, 189; Code, Code, 211a; former Pen. Pen. §§ § 1203.06, (a)(1), subd. and 12022.5.) §§ This followed. appeal

II The issue primary to be decided this court is whether the trial court erred in permitting prosecution to introduce on rebuttal evidence of the two interviews. Appellant contends the evidence was in admissible it because was obtained in violation of the first safeguards Arizona, set forth in Miranda v. supra, 436, 384 and subsequently made “an intrinsic part (See of the law of this state.” v. Pettin gill (1978) 231, 21 861, Cal.3d 237 Cal.Rptr. 108].) P.2d The [145 Attorney General admits that the requirements of Miranda were not However, met. he urges that compliance was for two rea unnecessary (1) sons: the state’s questioning appellant did not call “testimonial” responses within the of the meaning privilege against (2) self-incrimination and the interrogation was not be incriminatory cause it fell within the “booking” “neutral information” exception Miranda. issue,

To resolve this it is to examine the necessary of the relationship Miranda doctrine to the self-incrimination. The privilege against is an mandate of both the privilege express California and United States It protects Constitutions.6 an individual from being compelled to provide “testimonial” evidence which tend to incriminate him. As a may corollary, privilege precludes from such evi government using (See dence or its fruits in a criminal Murphy Waterfront v. proceeding.

Comm’n. (1964) 52, 57, 678, 683, 378 U.S. fn. 6 L.Ed.2d 84 S.Ct. [12 The 1594].) be invoked in privilege may any setting,7 traditionally, privilege against 6The self-incrimination of the California Constitution is found in ar I, 15, pertinent ticle section which in part: may compelled reads “Persons not.. .be in a ” against analogous criminal cause to be a witness provision themselves.... The Amendment, federal Constitution is found in the Fifth pertinent part: which reads in person... compelled “No shall be against criminal case to be a witness himself....” 1, 47, 527, 557-558, (1967) 7See In re Gault 387 U.S. L.Ed.2d 87 S.Ct. [18 70, 274, 281-282, 1428], Turley (1973) v. 414 U.S. 94 S.Ct. [38 Lefkowitz 524, 314], (1894) 364], Tyars parte Ex Cohen 104 Cal. 527-528 P. and Cramer v. [38 (1979) Cal.Rptr. 23 Cal.3d 588 P.2d 793]. has focused on privilege an asserted invasion of review of judicial testi- (2) actually compelled to disclose the claimant was whether incriminate (3) which tended to him.8 monial communications in the Miranda decision and its “Califor The enunciated safeguards been nia are but have tailored to required by privilege progeny”9 focus of the of a “custodial specific setting interrogation.” primary Miranda line is “the inherent in custodial sur compulsion of decisions Arizona, (Miranda 384 U.S. at roundings.” L.Ed.2d at In order to combat these p. 714].) “inherently compelling and thus to a full to exercise the pressures” “permit opportunity privi self-incrimination,” the Miranda decision held lege that “the against accused must be and of his and adequately effectively apprised rights (Id., the exercise of those must be honored.” at 467 rights fully p. [18 L.Ed.2d at p. 719].)

Thus, the Miranda is a refinement of the compul- analysis primarily sion of the Where actual must be aspect compulsion privilege. Miranda holds established under a traditional privilege analysis, is assumed exist in a compulsion custodial unless setting specified However, the procedural are followed.10 fact that safeguards carefully the Miranda concerned with the analysis primarily compulsion aspect of the testimonial does not alter the fact that the privilege component Therefore, of the must also be satisfied. this court must deter- privilege mine whether at responses the two interviews were testimonial within the meaning privilege. contexts, analysis 8In other a somewhat different may (See, be appropriate. e.g., 834,

Reynolds Superior (1974) 437, v. Court 12 Cal.3d p. at 839 Cal.Rptr. 528 [117 [discovery by prosecution against P.2d defendant]; a criminal and 45] Marchetti v. 39, (1968) 889, 901-903, United States 55-57 390 U.S. L.Ed.2d 697], 88 S.Ct. and [19 62, (1968) 906, 911-913, Grosso v. United States 390 U.S. 67-69 L.Ed.2d 88 S.Ct. [19 required doctrine].) records 709] [the 101, (1976) 360, 9People v. Disbrow page Cal.Rptr. 16 Cal.3d at 113 545 P.2d [127 272]; Pettingill, see also v. page 21 Cal.3d at 237. safeguards quite 10Those are now suspect (1) familiar. A is entitled to be advised of rights certain prior any interrogation (id., constitutional custodial at pp. 467-474 [16 719-723]), pp. (2) L.Ed.2d at questioned only if he voluntarily, knowingly and intelli gently rights (id., waives pp. these at pp. 724-725]), (3) 475-476 L.Ed.2d at [18 allowed to “cut questioning” off by indicating at time attorney he wants an (id., wishes to remain p. 723]). silent 474 L.Ed.2d at [18 case, present warnings In the given undoubtedly were defective. Instead 380 to obtain evidence from an accused attempt incriminating

Not every For this violates the self-incrimination. court privilege against example, and the United States Court have actions the state Supreme upheld a criminal of his blood or breath fol requiring suspect sample give (1957) for drunk v. driving (People Duroncelay arrest lowing Schmerber v. (1966) 690]; Cal.2d 766 P.2d U.S. [312 California 908, L.Ed.2d 86 S.Ct. words for 1826]), repeat prescribed [16 v. Ellis (1966) voice identification 65 Cal.2d 529 purposes (People [55 States v. Wade 385, 393]; United (1967) 421 P.2d 388 U.S. Cal.Rptr. 1149, in a 1926]), L.Ed.2d 87 S.Ct. to appear corporeal lineup [18 (Gilbert (ibid.), (1967) to write a handwriting exemplar California an item 1951]), 87 S.Ct. to wear [18 v. White (1968) 69 Cal.2d 751 (People clothing Cal.Rptr. Holt v. United States 446 P.2d 218 U.S. 245 993]; L.Ed. 1021, 31 S.Ct. 2]).

These decisions were on the that “the premised concept prohibition a man in a criminal court to be witness himself compelling is a against of the use prohibition or moral to extort commu physical compulsion him, nications from not an exclusion of his as evidence when it body States, (Holt v. United bemay material.” 210 U.S. at 252 supra, p. [54 noted, L.Ed. at p. 1030].) As the Court has distinction Supreme “[t]he which has often in emerged, expressed different is that the ways, privi is a lege bar ‘communication’ or but against compelling ‘testimony,’ which makes a or an compulsion suspect accused the source of (Schmerber ‘real or evidence’ does not violate it.” v. physical Califor nia, supra, 384 U.S. at 764 L.Ed.2d at see also p. p. 916]; v. [16 Ellis, 533.) supra, 65 Cal.2d at p. This shorthand formulation of a distinction between testimonial and uninformative, physical evidence is often since in cases a many “such (Schmerber distinction is not California, drawn.” v. supra, readily 384 U.S. at p. L.Ed.2d at This p. 916].) court and the Supreme [16 advising attorney appellant appointed of that “if he cannot afford an one will be (id., 726]), prior any questioning p. p. him if he so desires” L.Ed.2d at at [18 following enigmatic you the officer “If have no funds to hire an made the statement: attorney, you you stages at all of the represent the Public Defender will advise of one to proceedings.” addition, rights; lawyer only In request did not waive his and his for a officers, bring pre- questioning by police failed to about an end to the but failed to questioning by probation vent a later round of his officer. have a examination as an of a example Court pointed polygraph results are based upon source of evidence—its arguably physical the spirit reactions—which nevertheless does “evoke suspect’s physical (ibid.) and is testimonial” “essentially history” privilege Ellis, Thus, 9). Cal.2d at fn. this formula- (People supra, v. tion is often less than whether a helpful determining particular statement from an individual is to be as “testi- compelled regarded monial” or merely “physical.”

The case law is instructive on this In the benchmark decision point. Schmerber v. California, supra, no violation of the test, federal was found in a compelled blood-alcohol results privilege of which were to be used in a under the prosecution for influ- driving ence of alcohol. The court that the testimonial noted component communications, “reaches privilege an accused’s whatever form they take, and might that are also communica- compulsion responses (384 However, tions. ...” U.S. at 763-764 pp. L.Ed.2d at p. 916].) did procedure extract the blood not involve “even a shadow of ” (Id., compulsion... testimonial or enforced communication. ... p. 765 L.Ed.2d at The court p. 916].) noted that the accused’s “par- donor, ticipation, test, as a except irrelevant to the results of the (Ibid.) which depend on chemical and on that alone.” analysis Schmerber, Almost six months after this court held that an accused had no to refuse privilege in a voice participate identification proce- Ellis, dure. (People 529.) test,” Cal.2d “In such a the court reasoned, asked, “the speaker is not to communicate ideas or knowledge facts, but to in the engage physiological processes necessary pro- of duce the verbal sounds, a series of articulated which meanings are of (Id., unimportant.” 533-534, added.) at pp. contrast, italics By the observed, court a lie detector test would be “essentially testimonial” be- cause it is “designed to the probe conscious of the knowledge accused.” (Id., 537, at p. 9.) fn.

The court noted that the also involves the of privilege protection pri- values. The vacy “Fifth Amendment at least right privacy protects uncommunicated thoughts and has been extended to com- preclude pelled production of private papers and documents. A voice [Citation.] test, however, contemplates no such intrusion into no disclosure privacy; of thought (Id., or privately held at requested.” p. information added.) italics Ellis, the Court handed Supreme decision in after this court’s

Shortly Wade, cases of United States in companion down its decisions the and Gilbert v. California, supra, 388 U.S. 263. 388 U.S. when There, was deemed not to have been violated the federal privilege in was a required participate a criminal offense a accused of person (Wade), (Wade), words give handwriting lineup speak designated conclusions, (Gilbert). the court relied on these exemplar reaching In. knowl- to “disclose the fact that the accused had not been required (388 1155], have” at L.Ed.2d at edge p. p. that he U.S. might [18 added) The words italics or to otherwise communicate information. them the po- and Gilbert wrote had been for prescribed by Wade spoke their own creation. lice. The content of their utterances was not of Rather, character- physical their revealed “an responses only identifying (388 at 1155]; 222-223 L.Ed.2d at U.S. pp. p. istic.” at p. 1183].) behind these decisions the conclusion compels rationale within the extracted from were testimonial responses appellant made were meaning privilege. Clearly, responses their face for he was asked to “communicate “communications” on were not pre The words appellant spoke ideas or of facts.” knowledge Rather, as in Wade. him, he to “disclose required scribed was Moreover, held information.” and to reveal knowledge” “privately Ellis, as in his utterances were not “unimportant,” “verbal meanings” for which were elicited. they but were in fact essential to the purpose concerned, value of appel the probative As far as the prosecution the questions their being responsive lant’s disclosures on depended turn, could be determined by asked him. This responsiveness, only and comparing the disclosures themselves the contents of examining were disclosures them with the asked. questions Although said, literal truth of what was their contents used to prove being relied on establish the value of probative necessarily being were disclosures. was relevant

Further, of the disclosures accuracy contents If the disclosures were admitted. to the for which were purpose they face, on their incorrect, appearing responsive be even though shown to was functioning to prove appellant value of their admission then the would be diminished.11 normally value of the understanding probative of how the helpful to an example may 11An be and accuracy appellant’s upon responsiveness both the depended

interview evidence

383 the as evidence of the question A to the to whether approach related focuses of the aspect privi- was testimonial on the privacy first interview Ellis, 65 Cal.2d at page People supra, this court in v. As noted lege. least uncommunicated protects the “at privilege’s right privacy Requiring responses and held information.” thoughts” “privately life this purpose an thwarted questions appellant’s history concerning compulsion. behind the To purpose sug- the of the privilege, regardless be his to reveal and compelled thoughts individual gest may wishes to his mental whenever the state determine past history capacity case is out the the virtually wipe privilege protec- in a criminal tion of which it affords. privacy the first is that the evidence of interview was argument advanced to prove

not testimonial since the state only trying contention, and mental To buttress “physical condition.” this cases are cited which hold disclosure that a of “an compelled identifying physical voice, etc., such body, characteristic” as one’s is a form of handwriting, Therefore, rather than physical testimonial communicative evidence. (Peo it is that the are admissions argued protected by privilege. Ellis, Wade, States ple supra, United v. 65 529 [voice, Cal.2d v. body]; (1953) U.S. 218 People Harper [voice, body]; v. 115 Cal. [handwriting]; Gilbert California, supra, App.2d P.2d 950] v. Goldenson (1888) [handwriting]; Cal. P. [body].) 161] This argument reveals fundamental misconception of the privilege against self-incrimination. It assumes the of the application is privilege determined by nature of ultimate sought fact to be In proved. fact, it is not what the state is which be attempting prove may pro- tected how but the state privilege, tries to it. For prove example, even though one of the issues in a prosecution under driving central accused, influence of alcohol sobriety the privilege would forbid the state from an accused to disclose compelling verbally how much he had had to drink or how he felt. The privilege autho- may If an answers. individual (New York) were asked where he was born and he answered (1) York;” “Paris;” following one of the ways: (2) (3) “New “I waiting am still born;” weather, too;” (4) to be “I enjoy hot nursery rhyme,” “hums a that answer might probative be of his mental state. In a trial in which his defense centered on his inability to requisite formulate the mental state due capacity, to his diminished trier of fact would draw quite different depending upon conclusions which of the above responses gave he accuracy. Clearly, its the content of the statement determines its probative value. rize the state to him to furnish a compel blood from sample which his later be guilt may established. This is permitted because the is a sample form physical of evidence and not because it is used to an prove argu (See Curcio v. United States ably physical fact. also (1957) 354 U.S. L.Ed.2d 77 S.Ct. the custodian of the [1 1145] [while records of a labor union be may compelled the union’s produce books, he not be may compelled as testify to their whereabouts if he refuses to produce them].)

It is that argued were nontestimonial since responses they were not admitted to truth prove However, of their literal contents. this to the suggested analogy rule12 lacks an anchor in law hearsay or reason. privilege self-incrimination is not a against rule. To hearsay value, have communicative or testimonial disclosure compelled need not be obtained admitted into evidence to prove its substantive truth. A use of a disclosure for other than the truth of the matter asserted can still be a communicative use.13

Nevertheless, the Attorney General urges that appellant’s responses were not testimonial because their contents were irrelevant. What was essential was not the contents of appellant’s disclosures, but the fact that he was able to articulate However, appropriate responses. this over- looks the fact the contents of appellant’s disclosures were relevant necessarily to the purpose for which they were admitted. Only by examining whether his disclosures were responsive and accurate could be inferred about anything a lack of (Cf., diminished capacity. ante, 382-383.) at pp.

If this court were to with the agree arguments of the Attorney Gen- eral, the state would have the compel right individual to engage an incriminating discussion—to use his mental faculties to create evi- that, here, hearsay 12The provides rule with certain exceptions not relevant an extra judicial statement proceedings prove is not admissible in court “to the truth of the Code, However, (Evid. 1200.) matter stated.” proceeding, if otherwise relevant to the § may such prove a statement be admitted if offered to some issue or fact other than the truth of the matter stated. apply privilege 13Prior cases have not hesitated to to evidence which was ad nonhearsay purposes impeachment (New mitted for such Jersey (1979) as v. Portash 1292]) 99 S.Ct. guilt (People consciousness of [59 P.2d.l8]; Snyder (1958) Simmons 28 Cal.2d 699 People v. 50 Cal.2d 1]). P.2d dence himself—whenever it wished to his medical or against prove condition. Viewed in this the General’s physical light, Attorney argu- ments run counter to both the and the of the history spirit privilege, Nation’s most cherished which has been described as “one of our aptly Arizona, (Miranda at 384 U.S. 457-458 principles....” pp. L.Ed.2d at p. 714].) Cal.Rptr. in Cramer v. 23 Cal.3d Recently, Tyars the self- 588 P.2d this court stated that 793], privilege against disclosure of state- incrimination was not violated the by compelled ments “mental condition” at a civil com- an individual’s revealing mitment of a retarded proceeding mentally person.

However, decision, in that the court was careful to note that those were civil in nature” and “not to proceedings “essentially analogous Moreover, (Id., 137.) criminal at the disclosures proceedings.” p. per- mitted in were since Tyars not incriminatory, they exposed Thus, individual to civil not criminal is Tyars’ liability. language not informative on the issue of the of the in crimi- availability privilege nal proceedings.14 by concurring dissenting Tyars 14Reliance opinion totally and on Cramer v. misplaced present Tyars, in the criminal It case. should be remembered that in this court basically compelled considered two sets of statements from conservatee. The compelled by first set involved of Tyars potential utterances Mr. which revealed “evidence (Id., 138.) p. criminal conduct.” at compelled second set involved statements

Tyars (ibid.) which did “any not relate to criminal conduct” but which were relevant only nonincriminating, to his liability potential civil as a conservatee. Both sets of Tyars’ conservatorship hearing statements had been admitted at for a single contents, purpose—not prove to the truth of their but rather “to reveal to the [i.e., trier of Tyars’] physical (Id., 137.) fact his mental characteristics.” at If the concurring dissenting opinion compelled were correct that are disclosures nontesti monial purpose whenever the of their admission prove falsity is not to the truth or manner, spoken the words Tyars but rather the then both sets of statements in would have been against nontestimonial hence outside protection privilege self-incrimination. However, Rather, that is not what this court held. the court stated that the first set (and, therefore, protected by testimonial) of statements was privilege and the sec- ond set was not. Obviously, nonhearsay purpose for which sets both of statements were admitted could not been have the basis for this court’s determination whether the privilege applied. Tyars protected though One set of statements in held be was even not admitted for falsity the truth or of its contents but to the manner show in which Tyars responded questions. protected despite The other set was held not to be its be- ing purpose admitted for the identical as the first. The true difference between the difference on which statements—the the court’s de- incriminating (i.e., cision turned—was that one set of statements was those which tended implicate Tyars activity) (i.e., in criminal and one set those which subjected Tyars (For only potential liability). potential civil a discussion of the case, 387-389.) incrimination of the present post, pp. interview evidence in the see This holds that the evidence elicited the two court interviews during was testimonial within the of the state and federal meaning privileges self-incrimination. against

Ill of Miranda Next, it is that with the compliance requirements urged neither interview amounted in this case because unnecessary The Su an within the of that decision. “interrogation” meaning defined custodial in Miranda as preme interrogation “questioning Court after a has been taken into person initiated law enforcement officers by or otherwise of his freedom of action custody deprived any significant (384 at 444 L.Ed.2d at this court p. p. 706].) Recently, way.” [16 it process reaffirmed that an is “‘a of that lends interrogation inquiry self, even if not so statements to eliciting support designed, damaging his guilt.’” (People Pettingill, person’s] arrest and v. ultimately [a 244.) 21 at p. supra, Cal. 3d case,

In present the the questioning appellant by police by officer was “initiated law enforcement offi- probation clearly by Arizona, (Miranda supra, cers.” v. 384 U.S. at 444 L.Ed.2d at p. [16 “the the defendant’s p. 706].) The interviews were result of own hardly 522, v. Ireland (1969) 70 Cal.2d (People Cal.Rptr. initiative.” [75 580, If 450 P.2d 40 A.L.R.3d these interviews were not 1323].) would bear the burden of “interrogations,” prosecution establishing White, 69 Cal.2d at p. (See 761.) People supra, that fact. v. the interview the probation There can be no that of question It ficer constituted an elicited a highly incriminatory interrogation. Moreover, from a false claim that he had an alibi.15 response appellant, this confrontation was to obtain evidence of express purpose ap with the offenses he had committed. pellant’s respect mental capacity not have been to elicit state That of the interview purpose might in the crimes is irrelevant. ments acts involved physical concerning of these with which act is as much an element just The intent an done (Pen. Code, 20.) Questions themselves. offenses as are acts § intent, are no albeit indirectly, to elicit information about designed about a questions person’s than are similar indirect less incriminatory by appellant spontaneous was a one but the argued that this statement facts 15It is contrary indicate the to be true. officer, appellant probation had refused to waive his Prior to his interview with later, sought attorney. ap- to contact an Several hours rights on several occasions has The Court of held that the Appeal or motive. knowledge actions the men an interview is used “as a basis for determining fact that to be it from a process does not remove tal condition accused statements, nor eliciting incriminating lends itself interrogation seeks to from the which the rule against guard shield it dangers (1965) Montgomery Cal.App.2d v. accused.”16 (People Walker, 454; Cal.App.3d People Cal.Rptr. 475]; v. Bennett 58 Cal.App.3d Cal.Rptr. see also 679].) with the come into in connection ear considerations play

Additional Respondent and Benton. character Petitjean lier interview Officers by “neutral information” “booking” izes this session as a at a Miranda necessary proper The are not safeguards interview. is elicited having interview at which certain basic information booking offense with surrounding any to do with the circumstances nothing v. Hernandez (See, People charged. which the defendant has been e.g., v. Van Cal.Rptr. 448]; People Alstyne (1968) 263 242 Cal.App.2d [69 The (1975) booking proce 46 Cal.App.3d Cal.Rptr. 363].) 900 [121 (Pen. dure, Code, 7, 21), defined subd. has been as statute by § (Kamisar al., as et Modern process.” described a clerical “essentially 6.) (1974) information needed at a Criminal Procedure limited p. is" for the of internal ad procedure solely booking required purposes jail ministration, not for use in connection with criminal proceeding the is arrestee. When use of this information confined to those against its cannot proper elicitation be considered purposes, incriminatory. pellant again “interview,” brought was out for officer, an this by probation time his and rights. was not even advised of his The officer’s first appellant words to were intended convey to and very did that “this was a serious case.” In response, appellant made the question. admission in This a was not contact by appellant, initiated and response his implied the officer’s hardly accusation could unexpected. (See have been People v. White, supra, 760-761.) 69 Cal.2d at pp. Obviously, spontaneous. (See it was Peo- 948, ple (1970) 658, v. Randall 1 Cal.3d 958 Cal.Rptr. 464 P.2d [83 114] [once rights, accused has invoked his police-initiated interrogation Miranda pro- “cannot voluntary duce spontaneous statements.”].) waivers or significant 16It probation part is not that the officer for the most testified to his con opinions clusions or appellant’s responsiveness about to the and not actual substance of appellant’s responses. only opinion testimony Not is such inadmissible as a fruit of the illegal interrogation, objectionable grounds: (1) it is also on learning other without the conversation, underlying contents of the testimony conclusory (see such People v. Simmons, 717-718; supra, (1972) 28 Cal.2d pp. People at v. Walker Cal.App.3d 448, Cal.Rptr. 672]), (2) 454-455 and jury is likely to conclude from the [105 obvi gap testimony “incriminating ous in the being that matters were withheld from them” (id., 455). p.

However, case, in the used present prosecution his to the officers’ at trial. responses “booking” questions prove guilt This use to the attention a deal of incrimi brought jury’s great patently material, (1) his natory prejudicial including appellant invoking Arizona, Miranda v. (cf., on five occasions rights separate 468, U.S. at fn. 37 L.Ed.2d at p. 720]; [16 Griffin California (1965) (2) the state 1229]); U.S. 609 S.Ct. ment I’m I officers that “so now on this beef. This beef can beat (3) an admission under easy.”; “get[ting] money (4) table” connection with a as a an admission he job printer; Also, drove without a driver’s to the transcript license. given jury deletions, contained 10 which could have told the more only jury (Cf., v. Walker had material been omitted. incriminatory 454-455 the entire Cal.App.3d Cal.Rptr. 672].) Finally, interview was recorded and covered tape far-ranging aspects appel life, law, lant’s whether he studied he went into the mili including why service, and where he lived at the time he started school. tary high These far exceeded need questions for information any legitimate authorities. jail information,

Even the if remaining introduced at a criminal proceed would ing, tend to incriminate. has noted that Wigmore privilege “[t]he any applies fact which is relevant to a whose sole or es proceeding (8 sential is to the claimant with object charge a crime.” specific 1961) 2260, 369, Wigmore, Evidence rev. ed. (McNaughton p. origi § italics, omitted.) Here, nal fns. issues in question at trial were only appellant’s intent and mental at the time of the commission of capacity the offenses. The the first interview questioning appellant during used him, to establish these of the elements and “at charges against (ibid.), least on the prosecution’s assumption” appellant’s responses were incriminating.

The fact that most disclosures related to biographical data, se, material and statistical rather than the facts of the crime is per (See v. McCormick (1951) 102 dispositive. Cal.App.2d Supp. 954 P.2d down under the California [striking privilege [228 349] a local ordinance “member requiring communist every organiza- name, alia, tion” to his inter with the local register sheriff]; Prudhomme v. Court (1970) 129, Superior 2 Cal.3d 320 Cal.Rptr. [85 Bradshaw Court (1970) 466 P.2d 2 332 Superior 673], v. Cal.3d [85 Allen 136, Court (1976) 18 Superior 466 P.2d v. Cal.Rptr. 680],

389 774, Cal.3d 520 of these deci- Cal.Rptr. P.2d each [134 65] [in sions, the court struck down under the California an order privilege reveal, alia, a criminal defendant to inter the names and ad- compelling Marchetti v. United States (1968) dresses of prospective witnesses]; and Grosso v. United States 889, U.S. 39 L.Ed.2d 88 S.Ct. [19 697] (1968) 390 U.S. 62 L.Ed.2d 88 S.Ct. down un- [striking [19 709] der the federal a statute which a privilege required gambler register, alia, name, inter his residence and business address with the local Inter- Byers nal Revenue Service]; compare, California 91 S.Ct. 1535].) [29 It is not the nature of the just information revealed but the potential for incrimination under all the circumstances that is In the important. case, present had been arrested for a homicide. Homicide statutes,’” “‘an area with permeated criminal and those arrested for are, murder “a purposes privilege, group ‘inherently suspect States, (See Marchetti v. United of criminal activities.’” illustrates, U.S. at 47p. L.Ed.2d at As the case p. 897].) present the hazards of incrimination from an unreasonable interview booking (Id., are not “trifling imaginary.”17 p. 901].) L.Ed.2d at Evidence of an arrestee’s responses questions can constitute booking “evidence which will facilitate unless its use is limit- [his] conviction[]” (Ibid.) ed to the for which it was purposes elicited.

Jail officials still retain the right demonstrated need for satisfy certain basic information the arrestees in their This concerning custody. need can be accommodated the state to obtain from an by permitting basic, arrestee the neutral information is necessary proper jail administration, but the the state from arrestee’s re- forbidding using Therefore, in sponses manner in a criminal any subsequent proceeding. Miranda warnings need not be at a since given booking interrogation, the information acquired cannot be to uses. For put any incriminatory reason, this evidence of the interview with was not “booking” admissible on the substantive criminal charges.

IV Next, it is contended that even if the evidence of the two inter case-in-chief, views were it was inadmissible in the prosecution’s also, 17See People (1967) 374]; v. Cal.App.2d Cal.Rptr. People Walters 252 336 [60 Hernandez, 242; v. supra, Cal.App.2d Alstyne, supra, 263 People v. Van 46 Cal.App.3d 900.

390 appellant’s presen- nevertheless admitted on rebuttal properly following tation defense. capacity of a diminished

The case law clear. The self-incrimination forbids privilege against “the derived compelled use of... answers evidence [an individual’s] in in criminal case which he is a defendant.” any subsequent therefrom 414 282].) v. at L.Ed.2d at (Lefkowitz Turley, p. p. U.S. supra, [38 use, indirect, It the provides “a direct or sweeping proscription any (Kasti compelled testimony any information derived therefrom.”18 441, 212, 226, v. gar United States added; McCormick, 1653], see v. People S.Ct. italics also supra, 957-958.) Su Supp. at the United States Cal.App.2d pp. Significantly, has held preme Court federal Constitution forbids recently statements, state an individual’s in using from taken violation Fifth Amendment his at a trial criminal privilege, impeach testimony Portash, (New at which he is defendant. 440 U.S. Jersey 450.) in this protection Since accorded to individuals state by at in the California Constitution is privilege against self-incrimination as, than, least as broad and often broader that accorded the federal by Constitution, Con Portash conclusion would also our state apply (See (1976) 16 Cal.Rptr. stitution. v. Disbrow Cal.3d 272].) 545 P.2d Constitution, Moreover, if there been a fail- under the California has with safeguards, “any [resulting] extrajudicial ure to Miranda's comply defendant, is in- or exculpatory,” statement whether by inculpatory of im- purposes affirmative evidence or for admissible “either as added.) (Id., italics peachment.” because apply contention is made that these rules do not here the sub- this case prosecutor sought [prove] “[w]hat made, but have appellant might stance of remarks or comments logic rather as evidenced his attitude ability respond his [and] ” asserted, is “neu- it is evidentiary merely Such an reply. purpose, ... tral” than “inculpatory exculpatory.” rather in viola obtained derivative use of evidence privilege prohibits 18Since the use or concerning their thereof, testifying manner tion would the officers from in it forbid im to their overall including testimony limited appellant, possible with conversation questions. appellant responsive to be pression appeared that 391 However, were it is irrelevant that the of not ad responses mitted the truth of their literal contents. The courts of this prove admitted which had been state have excluded evidence consistently White, (See, v. 69 Cal.2d at nonhearsay purpose. e.g., People supra, 761-762 statements excluded which were offered pp. obtained [illegally and lack v. Dis remorse”]; show accused’s “callousness People brow, 16 Cal.3d 101 obtained statements excluded supra, [illegally which defendant]; were offered to Peo impeach credibility testifying Bennett, v. obtained statements ple Cal.App.3d [illegally supra, excluded which were offered to show defendant’s motive].) state, salient is point that this rules exclusionary relating to Miranda and to the privilege apply regardless purpose for which the response to be admitted or the sought of its ad- timing Disbrow, (See mission. v. People 16 Cal.3d 101 supra, [impeachment Walker, evidence on rebuttal]; People Cal.App.3d [tes- timony of a psychiatrist, based on illegal interrogation, inadmissible on rebuttal to attack diminished capacity defense].)

V The next question to be resolved is whether the erroneous admission of the interview evidence was prejudicial. An examination of the record of these statements indicates that the error was within prejudicial meaning v. Watson Cal.2d P.2d 243]. trial, At appellant presented what characterized as an judge “excellent” defense of diminished Evidence of capacity.

statements went to that directly defense. The question of the degree of appellant’s criminal liability not clear-cut since the sole issue pre- sented to the was the jury defense of diminished The fact that capacity. the jury deliberated nine hours before a verdict underscores reaching Further, this fact. the statements which intimated that appellant was his defense fabricating were most into prejudicial. Taking consideration all factors, these this court finds the introduction of these statements Therefore, amounted to the prejudicial error. of convic- judgment tion is reversed.

Tobriner, J., Mosk, J., Newman, J., concurred. RICHARDSON, J., Concurring Dissenting. I concurin the deter- mination the defendant’s conviction must be reversed. In addition 392 however, clarification, I of wish to reaffirm that by way strongly

the status interviews remains unaltered legitimate booking following opinion. today’s

I. to Is Not Routine Rights Advice as Constitutional Required for

Police Personal and Back- Regarding Questioning Identification Process ground During Booking Information interview, limited to routine booking It is clear that the traditional data on a questions purpose completing personal police asked for the form, and routine proc- is unaffected our here. The holding regular suspected individuals who have been arrested for criminal essing of necessitates that obtain information to confirm the police conduct medical care if such is to provide required, identity suspect, kin in the event of an and to emergency, accomplish next of identify other valid functions related to police directly booking. various In order to eliminate the inherent in custodial in compulsion police must warned that he has a suspect a criminal be terrogation, right silent, him; remain that he can be used that he says against anything one, if he presence has the to the of an cannot afford right attorney (Miranda (1966) will be the court. v. Arizona attorney appointed by 436, 694, 726, 1602, 384 479 86 S.Ct. 10 A.L.R.3d L.Ed.2d [16 de 974].) prerequisites interrogation These are absolute warnings (Id., at 471 to elicit statements. signed incriminating [16 571, (1965) 62 Cal.2d 579 p. 722]; Cal.Rptr. see v. Stewart [43 201, 400 P.2d 97].) the Miranda rules do it is well established

Conversely, equally identification questions relating personal to routine apply booking information, which have to do with questions nothing and background which the declarant circumstances the offense with surrounding situations, ‘de In there is “no process interrogation such charged. (1968) statements.’” v. Hernandez (People to elicit signed incriminating 242, v. Walters Cal.Rptr. 448], quoting People 263 253 Cal.App.2d [69 336, v. Palmer (1967) Cal.Rptr. 374]; People Cal.App.2d [60 Indeed, 239, such rou (1978) 466].) Cal.Rptr. 80 Cal.App.3d [145 even after elicited from a suspect custody tine information can be v. Van his Miranda rights. (People he has exercised one or more of (1975) Cal.Rptr. 363]; People Cal.App.3d Alstyne 332].) Cal.Rptr. 20 Cal.App.3d Johnson re- questions When the have concluded those police asking directly lated to the forms and to other formalities completion requisite interview” is attendant on the the concluded. booking suspect, “booking police If the wish to continue once the limited questioning suspect fulfilled, of have been must the individ- purposes booking they apprise ual of those constitutional enumerated above and obtain a waiver rights of those The the nature rights. interrogation, regardless of of ques- tions, may otherwise continue once the are requirements booking satisfied. If the interview does continue the requisite without warnings waiver, to them be questions responses to a may subject subsequent suppression motion.

I do not an suggest approved for use litany questions during booking precise questions interview. will in undoubtedly num- vary ber and form from police department to police department. If a defendant wishes to which he challenge questions believes are extrane- and, therefore, ous to the booking asked, function and which improperly answer, he was to obliged resolution of the will matter be left to the sound discretion of the trial court.

II. Improper Questioning Necessitates Reversal in Present Case Applying foregoing case, to legal principles the present it seems to me self-evident that the were police entitled ask defendant booking questions. They were not obliged preface those questions with any Miranda nor warning were they, before the conclusion of the booking interview, obliged honor defendant’s request for an attorney.

However, it seems evident equally that the numerous questions asked regarding defendant’s military service and his past and present educa- tional experience exceeded the scope valid booking interview. were, These questions therefore, improper the absence of an admoni- tion regarding defendant’s constitutional rights and his waiver of those rights.

Distilled from those questions asked and impermissibly included in the material presented to the were jury defendant’s repeated request an attorney, arguably improper comment on his exercise of his con- stitutional rights (Griffin 380 U.S. 609 [14 California 85 S.Ct. 1229]), admissions that he in various engaged conduct, forms of and, petty illegal most perhaps a tran- damaging, deletions, jury may suggested which have script containing the jury. to presented evidence not inculpatory of additional presence evidence, in obtained of this the admission it is not clear that Because a beyond was harmless rights, constitutional of defendant’s violation (1967) v. (Chapman reasonable doubt California view, convic- in 824, 1065]), my 705, 24 A.L.R.3d 87 S.Ct. tion must be reversed. to Prove Is Admissible Booking Questions Proper

III. Evidence of Mental Condition Appellant’s interview booking proper, the evidence secured

Turning during to in this I must re admitted case. validly I now consider whether it was (ante, majority opinion from those of the portions dissent spectfully infor that, obtain neutral 389) police although may which p. hold administration, the state may mation necessary proper jail in questions to responses legitimate booking thereafter use the arrestee’s The receipt initial subsequent proceeding. manner in a criminal It trenched on no constitutional this information was authorized. clearly interview subsequent booking and the use of evidence rights as testimo opposed be to disclosure of to physical should analogized nial evidence. (1979) in Cramer v. Tyars we addressed this distinction

Recently (at We there said 588 P.2d Cal.Rptr. 23 Cal.3d 131 793]. that, 139): questioned while could not be “We conclude him, he subject to incriminate to about matters that would tend nonincriminatory respond call as a witness and could be required to the jury, revealed his mental condition may which have questioning Rea mentally whether he was retarded. whose it was to determine duty that it under such appropriate son and common sense suggest person to observe the permitted fully that a be jury circumstances committed, and in order hear him speak respond to be and to sought his mental as to the level of it make an informed judgment may be analo such evidence receipt may and functioning. intellectual as to testimonial evidence opposed to the disclosure of gized physical indicator of proof probative be the most reliable may in fact (1966) (See v. Ellis People mental condition. person’s present privilege not within the Cal.2d 533-534. .. identification [voice (1966) Cal.App.2d v. Arnold against self-incrimination]; People self- privilege against not within the identification [handwriting .. . criminal proceeding defendant even in a incrimination].) Similarly, to ‘com- evidence contrast ‘real or required give physical’ be may Thus disclosing knowledge. in the sense of munications or testimony’ stand, hold wear clothing, be asked to the criminal defendant may Ellis, 533-534; v. items, at pp. People v. words. speak (People 544, 552....) It was for the proper jury 64 Cal.App.3d Sims both in of Tyars’ responses, have the benefit of its own observations (See content, also questions.” manner and to the court’s 114-115 561 P.2d Cal.Rptr. James 19 Cal.3d preceded to search need not be Miranda by warnings].) 1135] [consent Here, (see ante, the trial court in careful instructions to the jury 376-377) limited the admission of the interview evi pp. specifically dence, alia, “It the court inter is not offered for stating, being you consider the truth He is not it using of those statements.... for the truth of the statements in the but for the the tape, thought process, ” voice, intonation, the whatever can from it.... clarity you get Thus, the the claim that of the contents of the dis majority’s accuracy (ante, 382), closures was relevant the ignores explicit instructions of the trial court to the and divorced from the context of jury wholly this case.

The limited for which evidence purpose proper otherwise book- ing interview was admitted this case from those relied distinguishes upon by their conclusion that admission majority support evidence violated Miranda. It is the nontestimonial character of this evidence rather than its which removes it from the nonhearsay purpose reach of Miranda. the cases cited exception Without majority wherein the Miranda rule was to exclude evidence admitted for applied a this nonhearsay purpose all involved testimonial evidence. By making distinction, I do not mean that there not be other valid suggest may bases on which evidence secured interview proper booking may a during be I admitted. have here to determine attempted only validity basis on which the evidence was admitted in this case.

IV. Conclusion

I conclude that conviction must be reversed under the well ante, II, discussed, part and that principles established constitutional in this case is on the facts extension of these principles majority’s and unsupportable. both unnecessary

I would reverse the judgment.

Clark, J., Manuel, J., concurred. 27, 1980. was denied rehearing February Respondent’s petition Manuel, J., Clark, J., Richardson, J., were of the opinion should be petition granted.

Case Details

Case Name: People v. Rucker

Court Name: California Supreme Court

Date Published: Jan 29, 1980

Citation: 605 P.2d 843

Docket Number: Crim. 20682

Court Abbreviation: Cal.