THE PEOPLE, Plaintiff and Respondent, v. TOMMY SPENCER, Defendant and Appellant.
Crim. No. 7855
In Bank
Mar. 14, 1967.
66 Cal. 2d 158
Stanley Mosk and Thomas C. Lynch, Attorneys General, William E. James, Assistant Attorney General, and Gilbert F. Nelson, Deputy Attorney General, for Plaintiff and Respondent.
TOBRINER, J.—The jury found defendant guilty of kidnaping for the purpose of robbery (
Defendant contends that his confession was improperly admitted at the guilt trial because he had not been informed of his rights to silence and to counsel prior to the time he confessed; he also urges that improper comments by the district attorney and an inadmissible confession infected his penalty trial with error. Since we conclude that the introduction of defendant‘s confession at the guilt trial constituted reversible error under Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758], and People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], we need not reach the issues raised by defendant‘s other contentions.
The essential facts stand uncontradicted. Late in the evening of May 3, 1963, two sailors on liberty, Billy Jack and Paul Clements, were hitchhiking from San Diego to Hermosa Beach. Defendant and his codefendant, William Atlas, picked up the sailors in their automobile in Long Beach. Shortly thereafter, defendant and Atlas stopped the car and went into a liquor store to purchase some wine; upon returning, they were unable to start the car. The sailors left the car and attempted to obtain another ride, but they were soon picked up again by defendant and Atlas, who had finally managed to start their car.
When Atlas turned the car off the highway leading to Hermosa Beach, Clements said that he and Jack would leave the car. Defendant, holding a gun, replied, “No, you are going to take a little ride with us.” Defendant then demanded that the two sailors give him their valuables; this they did. Shortly thereafter, defendant ordered Jack and Clements out of the car and onto the ground. After they complied, defendant fired
Defendant and Atlas drove away but soon stopped their car in order to push a woman‘s stalled automobile. As they pushed the automobile to a gas station, a tire on their own car went flat. The woman agreed to pay for the flat, and defendant accompanied her to her home in order to secure the money. At this point the police arrived at the intersection where the gas station was located and arrested Atlas; as soon as defendant returned, the police arrested him as well. The police found the stolen goods in the possession of defendant and Atlas; they found a gun upon defendant.
After taking defendant and Atlas to the police station in the early morning of May 4, the police subjected both suspects to a tape-recorded interrogation. Defendant related most of the above facts but insisted that he, rather than Atlas, had been the driver, and that Atlas alone had perpetrated both the robbery and the killing. Atlas, on the other hand, claimed that he was the driver; he accused defendant of the robbery and shooting.
Later the same day, during a second recorded interrogation at the police station, defendant confessed that he had committed the robbery and the shooting. He said that he had fired the shots only to induce the sailors to keep their heads down and that he had not intended to hit either of them. In another recorded statement, however, Atlas stated that defendant had told him that he intended to shoot the sailors; Atlas claimed that defendant‘s declaration took him by surprise and that he tried to persuade defendant to abandon any such plan.
After the court admitted into evidence all of these recorded statements, both Atlas and defendant testified. Atlas’ testimony coincided in substance with his earlier statements. Defendant‘s testimony consisted generally of a repetition of the statements that he had given during the second interrogation. He again admitted picking up the sailors with the intention of robbing them; he said that after he had robbed them he told them to get out of the car and onto the ground: he admitted shooting one of the sailors but insisted that he had only intended to fire some shots to frighten them into keeping their heads down. He added that he had had a great deal to drink.
Clements, the surviving sailor, testified at the trial, identi-
1 Applying the principles established by Escobedo v. Illinois, supra, 378 U.S. 478, and People v. Dorado, supra, 62 Cal.2d 338, we have concluded that the trial court committed reversible error in admitting defendant‘s confession in evidence.
Turning initially to the admissibility of the confession, we note that defendant‘s first recorded interrogation took place at the police station at least two hours after he had been arrested. Later in the day, when defendant abandoned the position he had previously taken and confessed to the robbery and shooting, he remained in custody and at that point was subjected to a process of interrogation that manifestly lent itself to eliciting incriminating statements. The accusatory stage had thus been reached; defendant was therefore constitutionally entitled to remain silent and to consult counsel. (People v. Stewart (1965) 62 Cal.2d 571, 577 [43 Cal.Rptr. 201, 400 P.2d 97], affd. sub nom. Miranda v. Arizona, supra, 384 U.S. 436, 497-499; Escobedo v. Illinois, supra, 378 U.S. 478, 490-491; People v. Dorado, supra, 62 Cal.2d 338, 353-354.)
Since the record before us does not affirmatively indicate that defendant had been advised of his rights to silence and to counsel or that he was aware of these rights and chose to waive them, we hold that the trial court erred in admitting defendant‘s confession into evidence. (Escobedo v. Illinois, supra, 378 U.S. 478, 490 fn. 14; People v. Stewart, supra, 62 Cal.2d 571, 581, affd. sub nom. Miranda v. Arizona, supra, 384 U.S. 436, 497-499; People v. Dorado, supra, 62 Cal.2d 338, 353.)
We have held that use of a confession violative of Escobedo and Dorado necessarily compels reversal of the resulting conviction since a confession so completely shatters a defendant‘s case that its erroneous use at his trial works incalculable damage and precludes a finding of harmless error notwithstanding overwhelming extrinsic evidence of guilt. (People v. Schader (1965) 62 Cal.2d 716, 728-731 [44 Cal.Rptr. 193, 401 P.2d 665]; People v. Dorado, supra, 62 Cal.2d 338, 356; People v. Parham (1963) 60 Cal.2d 378, 385 [33 Cal.Rptr. 497, 384 P.2d 1001].)
The State contends that, since the jury in this case heard the defendant admit his guilt on the witness stand, the use of defendant‘s unlawfully obtained confession should be deemed harmless error on the theory that defendant‘s extrajudicial statement probably played little if any role in the jury‘s deliberation. (See Motes v. United States (1900) 178 U.S. 458, 475-476 [44 L.Ed. 1150, 20 S.Ct. 993]; People v. Combes (1961) 56 Cal.2d 135, 148 [14 Cal. Rptr. 4, 363 P.2d 4]; cf. People v. Jacobson (1965) 63 Cal.2d 319, 330-331 [46 Cal.Rptr. 515, 405 P.2d 555]; People v. Cotter (1965) 63 Cal.2d 386, 398 [46 Cal.Rptr. 622, 405 P.2d 862].) Even if we assume that the United States Constitution would permit the application of a harmless error rule under such circumstances,2 we could not rest affirmance of the judgment solely upon our evaluation of the minor effect of defendant‘s confession upon the jury; we must still weigh its impact upon defendant‘s trial.
In determining the effect of defendant‘s extrajudicial confession upon the outcome of the instant trial, we must consider the likelihood that it contributed to the verdict by in-
In evaluating the possibility that the erroneous introduction of defendant‘s extrajudicial confession might have induced his subsequent testimonial confession, we must assess defendant‘s reaction to the use of his confession at trial on the basis of the information then available to him; as we shall see, that information might easily have misled him.
In People v. Jones (1944) 24 Cal.2d 601 [150 P.2d 801], we considered the distinct but cognate problem of when a “subsequent confession [should be deemed] the result of the same influence which rendered [a] prior confession inadmissible....” (Id., at p. 609.) In concluding that the second confession in Jones, although not manifestly coerced, was no less tainted than the first, we noted that the police did not appear to have “cautioned defendant that his previous [coerced] confession could not be used against him.” (Id., at p. 610.) “For want of such information,” we said, “defendant might have concluded that he could not make his case worse than he already had made it and, under this [erroneous] impression, might have made the statements [which comprised his second confession].” (Ibid.)5
6 Since the trial in this case occurred in 1963, before the date of the Escobedo or Dorado decisions, the defendant here, like the defendant in Jones, could not have known that his previous confession should have been excluded and that its introduction in evidence constituted reversible error.
Believing his confession admissible, defendant might have taken the stand in order to explain its most damning features or to emphasize the extenuating circumstances
The situation we face here parallels closely one which confronted the United States Supreme Court in Fahy v. Connecticut (1963) 375 U.S. 85 [11 L.Ed.2d 171, 84 S.Ct. 229]. In Fahy, the prosecution had built its case largely upon illegally seized evidence, coupled with extrajudicial confessions and testimonial admissions by both defendants. Because the trial in Fahy took place before the decision in Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2d 1081, 81 S.Ct. 1684, 84 A.L.R.2d 933], the “petitioner was unable to claim at trial that the illegally seized evidence induced his admissions and confession.” (375 U.S. at p. 90.)
Formulating the constitutionally required test for assessing the prejudicial effect of illegally obtained evidence under such circumstances, the court said: “We are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” (375 U.S. at pp. 86-87.) The court found the requisite “reasonable possibility” in Fahy, stressing the fact that “[i]t was only after admission of the [challenged evidence] and only after introduction of the confession that the defendants took the stand, [and] admitted their acts....” (375 U.S. at p. 91.) Given this “indication of the prejudicial effect of the erroneously admitted evidence” (ibid.), the court concluded that “petitioner should have had a chance to show that his admissions were induced by being confronted with the illegally seized evidence.” (Ibid.)
In the application of Fahy v. Connecticut, supra, nothing can turn upon the distinction between verbal and physical
Because the trial here preceded the decisions in Escobedo and Dorado, the defendant in this case, like the petitioner in Fahy, was “unable to claim ... that [his illegally obtained confession] induced his [testimonial] admissions....” (375 U.S. at p. 90.) Here, as in Fahy, the precise issue which we are therefore called upon to resolve is “whether there is a reasonable possibility that the evidence complained of” (italics added) (375 U.S. at p. 86)—in this case, the extrajudicial statement—“might have contributed to the conviction” (italics added) (id., at pp. 86-87)—in this case, by inducing the defendant‘s judicial confession of guilt.
Under the circumstances of the instant case, we cannot realistically ignore the possibility that defendant‘s extrajudicial confession might have impelled his subsequent confession in court.
We recognize that no court has ever “gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.” (United States v. Bayer (1947) 331 U.S. 532, 540-541 [91 L.Ed. 1654, 67 S.Ct. 1394].) Nonetheless, the courts have not been blind to the fact that “after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good.” (Id., at p. 540.) In this sense, a later confession may always be viewed in part as fruit of the first. (See Note (1963) 72 Yale L.J. 1434, 1442-1443.) We must therefore recognize that it is always possible that an improperly obtained confession
To overcome the likelihood that the erroneous introduction of defendant‘s extrajudicial confession impelled his testimonial one, the State bears the burden of showing that the causative link between the two confessions had been broken. “[T]he beneficiary of a constitutional error [must] prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Italics added.) (Chapman v. California, supra, 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].)
The prosecution has failed to do so here. Instead, the prosecution urges us to speculate upon the defendant‘s motives for testifying and to infer, from a record which leaves the issue completely unexplored, that his decision to confess in court did not emanate from the erroneous receipt in evidence of his extrajudicial statement of guilt. We cannot posit so important a determination upon so conjectural a base.8
Although substantial evidence other than defendant‘s extrajudicial confession connected him with the crime,9 his case had been shattered by the “evidentiary bombshell” of that
We conclude that the record in this case fails to dispel beyond a reasonable doubt the possibility that the defendant took the stand in an attempt to mitigate the explosive impact of a confession which had left his case in ruin. Given that possibility, we cannot sever defendant‘s confession in the courtroom from his confession at the police station in order to render harmless the underlying violation of Escobedo and Dorado. Defendant‘s two confessions, viewed together, worked such prejudice as to compel reversal.
The judgment is reversed.
McCOMB, J.—I dissent. I would affirm the judgment. Applying the “harmless error” rule (
*Assigned by the Chairman of the Judicial Council.
that defendant demonstrate that when he decided to testify he shared the prosecution‘s estimate of the significance of his confession, would require an unwarranted departure from precedent (e.g., Chapman v. California, supra, 386 U.S. 18 [17 L.Ed.2d 705, 86 S.Ct. 824]; Fahy v. Connecticut, supra, 375 U.S. 85; People v. Schader, supra, 62 Cal.2d 716; People v. Parham, supra, 60 Cal.2d 378; People v. Jones, supra, 24 Cal.2d 601) and could only serve to encourage law enforcement authorities to employ confessions of doubtful validity in cases which seem unlikely to lead to convictions unless such confessions are introduced at trial.