Lead Opinion
Opinion
On a clear evening in February 2007, defendant Richard Tom broadsided at high speed a vehicle driven by Loraine Wong, who was making a left turn from Santa Clara Avenue onto Woodside Road in Redwood City. Wong’s younger daughter, Sydney Ng, eight, was killed; her older daughter, Kendall Ng, 10, sustained serious injuries. The evidence at trial showed that defendant did not brake prior to the crash. He had been speeding, although his precise speed was disputed. He had been drinking earlier that evening, although (again) the amount he had consumed was disputed.
The issue before us arises from the People’s reliance in their case-in-chief on defendant’s failure to inquire about the occupants of the other vehicle as evidence that he was driving without due regard for their safety. Did it violate the Fifth Amendment privilege against self-incrimination to admit evidence that defendant, following his arrest but before receipt of Miranda
Background
Defendant was charged with gross vehicular manslaughter while intoxicated, driving under the influence causing harm to another, and driving with a blood-alcohol level of 0.08 percent or higher causing harm to another, along with various enhancement allegations. A jury acquitted defendant of the alcohol-related charges but convicted him of vehicular manslaughter with gross negligence and found true the allegation that he personally inflicted great bodily injury on Kendall Ng. (Pen. Code, § 192, subd. (c)(1); id., former § 12022.7, subd. (a).) The court sentenced defendant to seven years in prison.
Events Surrounding the Fatal Collision
Defendant spent the early evening of February 19, 2007, entertaining his longtime friend Peter Gamino, a retired San Francisco police officer who was visiting from out of state. Defendant cooked a steak dinner at his Redwood City home and, after waking Gamino from a nap around 5:30 or 6:00 p.m., made them vodka tonics. Around 6:30 p.m., Gamino made another round of drinks. He did not know whether defendant finished that drink.
After dinner, defendant announced that they needed to pick up a vehicle from his son’s home just north of Woodside Road. Gamino testified that defendant exhibited no signs of intoxication, but admitted defendant had trouble finding his son’s house: “We didn’t get there right away. Couldn’t find our — the way. We eventually found it.” On the return trip, defendant
As the two cars turned from Alameda de las Pulgas onto Woodside Road, defendant was about 200 yards ahead. Gamino accelerated on Woodside, but defendant remained “a ways ahead.”
Meanwhile, Loraine Wong had left her home on Santa Clara Avenue in Redwood City to drive her daughters to an overnight visit at her sister’s house in Sunnyvale. Her sister, Geneva, had a new baby, and the girls were excited to see their new cousin. They were bringing some books they had purchased at Barnes and Noble that evening.
As they left the house, Wong called Geneva to let her know that they were on their way. Wong had completed the call by the time she reached the intersection of Santa Clara Avenue and Woodside (a two-lane divided state highway) less than a mile away, but the phone was still in her hand. Wong came to a full stop at the stop sign and inched forward, looking both ways. Her lights and blinker were on. She first looked left, and saw it was clear all the way to Alameda de las Pulgas, four-tenths of a mile away. She looked right, where it was also clear. Turning back to the left, she still saw no headlights or vehicles coming and began her turn onto Woodside. Wong, who had lived on Santa Clara Avenue for 15 years, had driven through this intersection several thousand times before.
This time was different. Suddenly, there was a flash of light, a feeling of soreness, and the pressure of the airbag. She had not seen headlights or heard any sound of braking, but Wong realized they had been hit. She looked outside but did not see any cars around her. She looked back and saw her daughters were unconscious and their faces were bleeding. As Wong climbed into the backseat, people nearby came to offer assistance. Wong shouted out her husband’s phone number for someone to call him. Kendall regained consciousness, but Sydney never did. Sydney was pronounced dead at Stanford Hospital at 8:53 p.m. The cause of death was multiple blunt injuries. Kendall suffered a three-inch gash on her forehead, which was closed with 30 to 40 stitches, and a broken arm. She had to use a brace for her injured neck and spent a week in the hospital. Wong suffered internal injuries, a broken rib, and a broken finger. Pieces of broken glass had scratched her face, arms, knees, and feet.
Sergeant Alan Bailey of the Redwood City Police Department received a report of the crash at 8:20 p.m. and arrived at the scene 10 minutes later. Wong’s vehicle, a 1996 Nissan Maxima, was badly damaged. The point of
Officer Janine O’Gorman, who arrived about an hour after Bailey, was assigned to be the lead investigator for this incident. She found no evidence that the Mercedes had applied its brakes prior to impact.
Officer Jincy Pace, a traffic accident investigator with the San Jose Police Department, agreed that the Mercedes barreled into the left rear portion of the Nissan and spun it around and that the primary cause of the collision was the Mercedes’s unsafe speed. Using a conservatively low “drag factor” (a measurement of the frictional relationship between the tire and the roadway), Pace calculated the Mercedes was traveling at a speed of at least 67 miles per hour prior to the collision; the Nissan was traveling about 12 miles per hour. Pace estimated that the Mercedes would have been at least 334 feet away from the intersection at the time the Nissan began its turn and opined that the Nissan would thus have had the right of way. Pace estimated that the Nissan would have been in the intersection for at least three to four and one-half seconds prior to the collision, which would have given the Mercedes enough time to stop even if it were speeding at 67 miles per hour.
Defendant’s friend Peter Gamino, on the other hand, testified that the Nissan pulled out from Santa Clara Avenue “fairly fast” and “instead of
Defendant’s Postcollision Conduct
Right after the collision, Gamino parked and went over to defendant’s car to see if he was all right. Defendant said, “I didn’t even see it.” Once the paramedics arrived, Gamino returned to the Camry.
Defendant was behind the wheel of the Mercedes when police first arrived. Two paramedics, one in the front seat and one in the back, were attending to defendant. Officer Josh Price had a brief conversation with defendant, but did not detect any odor of alcohol. When defendant’s girlfriend arrived and he got out of the car, he was limping slightly and complained of an ankle injury. The paramedics tried to convince defendant to go to the hospital to be examined, but defendant declined because he was concerned that his insurance would not cover it.
At some point, defendant and his girlfriend walked over and got into Gamino’s Camry. About 15 minutes later, Officer Price walked over to the Camry to talk to Gamino. Defendant interrupted them to ask whether he could walk home, as he lived only half a block away. Price told him “no,” since the investigation “obviously” was ongoing and he was needed at the scene. When defendant said his ankle hurt, he was given an icepack. Despite the recommendation of the paramedics that he seek treatment, defendant signed a form declaring that he had refused to seek treatment “against medical advice.”
Around 9:30 p.m., when Sergeant Bailey discovered that defendant was sitting in the Camry, he ordered defendant be moved to the rear of a patrol vehicle. Defendant’s girlfriend was allowed to join him in the backseat. He was not handcuffed. In accordance with the police department’s general policy to ask for a voluntary blood sample when a major injury collision has occurred (and to obtain a detailed statement from defendant), Sergeant Bailey asked defendant whether he would cooperate. Defendant said he would, although he seemed irritated that his blood could not be drawn at the scene. Defendant and his girlfriend were transported to the police station so that defendant’s blood could be drawn. They arrived at 9:57 p.m. A paramedic was dispatched to the police station around 10:00 p.m., but Redwood City’s contract with American Medical Response did not authorize a blood draw for suspicion of driving under the influence unless the suspect had first been placed under arrest. When Officer Price asked whether defendant would be willing to go to the hospital to get his blood drawn, defendant again seemed
Shortly thereafter, around 10:30 p.m., defendant asked to use the bathroom. He was accompanied there by Sergeant Bailey. While in the bathroom, defendant, who was limping, asked for an aspirin. Bailey, who was in “very close proximity” to defendant, for the first time noticed the odor of alcohol on his breath and the bloodshot and glassy appearance of his eyes. Back in the interview room, Officer Price likewise noticed the odor of alcohol on defendant, who had been chewing gum at the crash scene and at the station. Officer Roman Gomez, too, smelled alcohol and noticed that defendant’s eyes were bloodshot and glassy. Officer Price administered three field sobriety tests (the horizontal gaze nystagmus test, the Romberg test, and the finger-to-nose test), concluded that defendant had been under the influence of alcohol at the time of the collision, and arrested him. During his contact with Officer Price and Sergeant Bailey, defendant never asked them about the welfare of the other people involved in the collision.
Defendant’s blood was drawn at 11:13 p.m., around three hours after the crash. The test revealed a blood-alcohol level of 0.04 percent. Using a burnoff rate of 0.02 percent of alcohol per hour (which is a rate widely accepted in the scientific community) and taking account of the steak dinner consumed by defendant as well as the other circumstances, criminalist Carlos Jose Jirón opined that defendant must have consumed six drinks and that his blood-alcohol level at the time of the crash was 0.098 percent. In Jirón’s opinion, defendant would have been too impaired to drive safely.
Police Interview of Peter Gamino
Sergeant Paul Sheffield went to defendant’s house around 11:30 p.m. to speak with defendant’s houseguest, Peter Gamino. The interview was taped and played for the jury. Sergeant Sheffield noticed a large bottle of vodka, “much bigger than a fifth,” in the kitchen. The bottle was two-thirds empty. Gamino, who was awakened by the police visit, seemed to have “had a drink or two.” Gamino initially told police that he and defendant had nothing to drink during dinner, then admitted they had a “cocktail or so,” but “no idea” how many. Gamino eventually claimed defendant had no more than two drinks, but he did not know whether defendant had anything to drink before he started making dinner. In describing defendant’s driving prior to the collision, Gamino told police that although he and defendant were only a car length apart while waiting for the light at the intersection of Alameda de las Pulgas and Woodside, defendant “was a long ways in front” of him after the turn onto Woodside. Indeed, Gamino had just made the turn when the crash
Defense Case
Kent E. Boots, who was retired from the Orange County Sheriff’s Department and now performs collision reconstruction, disputed the drag factor calculation on which the prosecution’s experts relied. He also denied that a driver on Woodside could lose his right of way because of excessive speed.
Traffic accident reconstructionist Christopher David Kauderer estimated that the Mercedes’s preimpact speed was between 49 and 53 miles per hour and the Nissan’s preimpact speed was between seven and nine miles per hour. He opined that the driver of the Nissan entered the roadway suddenly, violating the Mercedes’s right of way, and that the driver of the Mercedes did not have sufficient time to react. Kauderer did not believe there was enough information to assign an appropriate drag factor to the Mercedes; the estimated drag factor had been the basis for the prosecution expert’s estimate of the Mercedes’s speed.
Forensic Toxicologist Kenneth Allen Mark questioned the prosecution expert’s estimate of defendant’s blood-alcohol level at the time of the collision, an estimate that relied on retrograde extrapolation. Because retrograde extrapolation depends on so many factors that were unknown in this case, such as defendant’s burnoff rate, how much food he had consumed and how quickly, the size of his liver, his physiological or emotional state, and whether defendant was in the absorption or elimination phase, Mark testified that it would not be possible to determine, with any degree of certainty, what defendant’s blood-alcohol level had been at the time of the collision. In Mark’s opinion, defendant’s blood-alcohol level at the time of the crash could have been as low as 0.01 or 0.02 percent. The fact that no one detected the odor of alcohol until 10:30 p.m. was consistent with a blood-alcohol level of substantially less than 0.08 percent at the time of the crash. Mark did concede, however, that the odor of vodka is less detectable than that of other liquor and that chewing gum would make detection even more difficult. Mark also stated that the field sobriety tests performed here would not necessarily indicate impairment from alcohol, since those are “highly variable” tests and could have been affected by defendant’s ankle injury.
Paramedic Daniel Giraudo arrived at the scene at 8:24 p.m. He testified that defendant had a perfect score on a test of alertness. Giraudo did not smell alcohol on defendant, and he did not recall whether defendant was chewing gum at the time.
Officer David Johnson, who was trained in accident reconstruction, testified that Kauderer’s model vastly understated the Mercedes’s preimpact speed, since the model would imply a drag factor so unreasonably low as to equate to vehicles skidding on ice. Based on the damage to the vehicles, their points of rest, and other information, Johnson estimated that the circumstances were consistent with a preimpact speed for the Mercedes of 67 miles per hour. Johnson further estimated that it would have taken Wong six to nine seconds to look left, right, and left again before pulling out into the intersection and then another three seconds to get to the point of impact. Under those assumptions, the Mercedes would have been between 884 and 1,179 feet away, too far away to be perceived as a hazard.
Arguments of Counsel Concerning Defendant’s Failure to Inquire
Both sides mentioned in argument to the jury the evidence of defendant’s postarrest, pre-Miranda silence.
The district attorney found it “particularly offensive” that defendant “never, ever asked, hey, how are the people in the other car doing? Not once. . . . Now, you step on somebody’s toe or you bump into someone accidentally, what is your first thing out of your mouth? Whoops. I’m sorry. I’m not saying that he has to say sorry as an expression of his guilt or as some kind of confession, but simply as an expression of his regret. Look, I’m sorry those people were hurt, [¶] Not once. Do you know how many officers that he had contact with that evening? Not a single one said that, hey, the defendant asked me how those people were doing. Why is that? Because he knew he had done a very, very, very bad thing, and he was scared, [¶] He was scared or — either that or too drunk to care.”
Defense counsel argued in response that “there was a big point made of Richard Tom didn’t ask about the condition of the people in the other vehicle. He didn’t care. He wasn’t telling the officers — asking the officers, what happened? What’s going on? How are those other people? [j[] And I ask you: What’s that got to do with anything? Does that help prove to you any element of the offense? They kind of stuck it there under consciousness of guilt. Does that have anything to do with the way you’re supposed to look at the evidence in this case? No. It’s there to make you dislike Mr. Tom, make you think he’s a bad person, therefore, get you closer to deciding he’s the one who caused this accident. [|] My response to that, by the way, would be, police know at 8:53 there’s a fatality in this case. I asked . . . Sergeant Bailey, Officer Price, did you ever tell Richard Tom this was — there was a fatality, between 8:53 and his arrest around eleven o’clock? They didn’t. Of course
The Court of Appeal Decision
The Court of Appeal consolidated the appeal (A124765) with a petition for writ of habeas corpus (A130151). Although defendant did not object on Fifth Amendment grounds to the evidence that he failed to inquire about the occupants of the other vehicle (nor did he object to the prosecutor’s argument on that basis), the Court of Appeal addressed the merits of the Fifth Amendment claim and reversed the judgment. The Court of Appeal concluded that defendant was under de facto arrest when he was transported to the police station in a patrol vehicle at 9:48 p.m.; that “the right of pretrial silence under Miranda is triggered by the inherently coercive circumstances attendant to a de facto arrest”; that the trial court therefore erred in admitting evidence in the prosecution’s case-in-chief of defendant’s postarrest, preMiranda failure to inquire about the welfare of the occupants of the other vehicle; and that the error was prejudicial under Chapman v. California (1967)
We granted the People’s petition for review. Our grant was limited to the admissibility of defendant’s postarrest silence under the Fifth Amendment. No party challenged in the petition for review, the answer to the petition, or the extensive briefing here the Court of Appeal’s decision to address the Fifth Amendment claim on the merits, nor does the Court of Appeal’s conclusion on this procedural point present an issue worthy of review. (Cal. Rules of Court, rules 8.500(b)(1), 8.516(a), (b); Southern Cal. Ch. of Associated Builders etc. Com. v. California Apprenticeship Council (1992)
Discussion
The Fifth Amendment’s self-incrimination clause states that “[n]o person . . . shall be compelled in any criminal case to be a witness against
The high court has found governmental coercion where, for example, the prosecutor invites the jury to draw adverse inferences from a defendant’s failure to take the witness stand. (Griffin v. California (1965)
Consequently, the Fifth Amendment privilege against self-incrimination does not categorically bar the prosecution from relying on a defendant’s pretrial silence. The prosecution may use a defendant’s pretrial silence as impeachment, provided the defendant has not yet been Mirandvzed. (Fletcher v. Weir (1982)
As noted by both parties, there is a split in the federal circuits and among state courts as to whether the Fifth Amendment bars the government from offering evidence in its case-in-chief of a defendant’s postarrest, pre-Miranda
A
In Davis v. United States (1994)
Berghuis v. Thompkins (2010)
Salinas then applied the objective invocation rule outside the context of a custodial interrogation. In that case, police visited Genovevo Salinas at his home as part of a murder investigation. Salinas agreed to hand over his
Salinas did not testify at trial, but the prosecution used his silence in reaction to the interview question about the shotgun as evidence of his guilt. (Salinas, supra,
The Salinas plurality began its analysis by explaining that “[t]he privilege against self-incrimination ‘is an exception to the general principle that the Government has the right to everyone’s testimony.’ [Citation.] To prevent the privilege from shielding information not properly within its scope, we have long held that a witness who ‘ “desires the protection of the privilege . . . must claim it” ’ at the time he relies on it.” (Salinas, supra, 570 U.S. at p._[
In justifying the application of the objective invocation rule in this new context, the plurality relied on the same two concerns the court had identified in previous cases — i.e., the need to avoid difficulties of proof and the need to provide guidance to law enforcement officers. (Salinas, supra,
Subsequent to Salinas, the Sixth Circuit held that the objective invocation rule applies not only when the suspect, prior to arrest, declines to answer a question, but also “where, as here, the silence did not occur in response to interrogation.” (Dis. opn. of Liu, J., post, at p. 1249.) In Abby v. Howe (6th Cir. 2014)
An unpublished decision of the Texas Court of Appeals then applied the objective invocation rule to a defendant’s postarrest, pre-Miranda silence. In Torres v. State (Tex.App., June 12, 2014, No. 10-12-00263-CR) 2014 Tex.App. Lexis 6354, a police officer spotted several items in the defendant’s vehicle that matched the description of items reported stolen and testified that the defendant offered no explanation as to why those items were in the back of his vehicle. (Id. at pp. *7-*8.) Relying on Salinas, the court concluded that the defendant “did not invoke his Fifth Amendment rights when he refused to offer an explanation to police for the items found in the back seat of the vehicle.” (Id. at p. *9; see U.S. v. Jones (E.D.N.Y., Mar. 11, 2014, No. 13-CR-438 (NGG)) 2014 U.S.Dist. Lexis 32032, pp. *17-* 18 [postarrest
We likewise conclude that the objective invocation rule applies to defendant’s postarrest, pre-Miranda silence. {U.S. v. Graves (4th Cir., Jan. 13, 2014, No. 12-4416) 2014 U.S.App. Lexis 617, p. *12 [describing Salinas as a decision “[djrawing no distinction between the invocation requirements before and after custody and Miranda warnings”].) Here, as in the situations discussed above, the objective invocation rule “ ‘avoid[s] difficulties of proof and . . . provide[s] guidance to officers’ on how to proceed in the face of ambiguity.” (Berghuis, supra,
B
The general rule that a witness who intends to rely on the privilege against self-incrimination must clearly invoke it has two “well-defined” exceptions. (Minnesota v. Murphy, supra,
First, a criminal defendant need not take the stand and assert the privilege at his or her own trial. (Salinas, supra, 570 U.S. at p._[133 S.Ct.
Second, “a witness’ failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary.” (Salinas, supra, 570 U.S. at p._[
Defendant, like Justice Liu’s dissent, seizes on the last of these scenarios, seeking to distinguish Salinas on the ground that the defendant there was deemed not to be in custody. But custody alone — in this case, a de facto arrest
The line between custody and custodial interrogation is a significant one. According to the United States Supreme Court, Miranda — and the custodial interrogation on which it relies — represents “a limited exception to the rule that the privilege must be claimed.” (Roberts v. United States (1980)
Indeed, Roberts itself applied the objective invocation rule to a defendant who had been arrested. In that case, evidence was admitted at sentencing that the defendant had refused over a period of three years, preceding and following his arrest, to cooperate with the investigation of a criminal conspiracy in which he was a confessed participant. {Roberts, supra, 445 U.S. at pp. 553, 557.) In response to the defendant’s complaint that use of his silence punished him for exercising his Fifth Amendment privilege against self-incrimination, the high court recognized, as we do here, that the privilege “is not self-executing” and “may not be relied upon unless it is invoked in a timely fashion.” {Roberts, supra,
Where a defendant could have invoked his privilege against self-incrimination at any point — but failed to do so — the prosecution’s use in its case-in-chief of the defendant’s postarrest, pre-Miranda silence in the absence of interrogation cannot be deemed a “penalty ... for exercising a
C
Although Salinas emphatically refused to adopt a “third exception” to “the ‘general rule’ that a witness must assert the privilege to subsequently benefit from it” (Salinas, supra, 570 U.S. at pp.___-__[133 S.Ct. at pp. 2180-2181] (plur. opn. of Alito, J.)), Justice Liu’s dissent depends entirely on the recognition of such an exception. In the view of the dissent, all postarrest, pr e-Miranda silence should be inadmissible, even though “the true reason” for the custodial silence may be “something other” than the intent to invoke the privilege in an individual case. (Dis. opn. of Liu, J., post, at p. 1253.) It is difficult to square the dissent’s approach with its concession that the Fifth Amendment “protects silence that constitutes an exercise of the privilege against self-incrimination, not silence attributable to other reasons.” (Dis. opn. of Liu, J., post, at p. 1248.)
To reconcile those two positions, Justice Liu’s dissent theorizes that Salinas’ s reliance on the general rule was “premised on the relatively uncertain reasons for silence in the noncustodial context,” and posits that silence after an arrest “gives rise to a much stronger inference of reliance on the Fifth Amendment privilege.” (Dis. opn. of Liu, J., post, at p. 1252.) But the application of the objective invocation rule in Salinas rested not on the likelihood that a suspect in general might wish to rely on the privilege in the prearrest context, but on the fact that Salinas “alone knew why he did not answer the officer’s question.” (Salinas, supra, 570 U.S. atp._[
Moreover, “ ‘the general principle that the Government has the right to everyone’s testimony’ ” (Salinas, supra, 570 U.S. at p._[
D
Defendant relies heavily on two pre-Miranda
Indeed, none of the cases cited by defendant or his amicus curiae analyzes the threshold question whether the privilege must be timely and unambiguously invoked if the defendant wishes to bar use of postarrest, pre-Miranda silence that occurs in the absence of custodial interrogation. In many of the cited cases, the defendant actually invoked his rights. (U.S. v. Okatan, supra,
E
The Court of Appeal also feared that, as a policy matter, allowing comment on a defendant’s postarrest, pr e-Miranda silence prior to custodial interrogation would “ ‘create an incentive for arresting officers to delay interrogation in order to create an intervening “silence” that could then be used against the defendant.’ ” (Quoting U.S. v. Moore, supra,
In any event, the same incentive to delay Miranda warnings already exists by virtue of the high court’s decision in Fletcher v. Weir, supra,
F
The Court of Appeal, which did not have the benefit of the Salinas decision, found a violation of the Fifth Amendment privilege in the admission of defendant’s postarrest, pre-Miranda silence based solely on the fact defendant was in custody and was silent as to the welfare of the others involved in the crash, without considering whether or when defendant ever invoked the privilege. This was error. As stated, a defendant must invoke the privilege in order to claim its protections, and the invocation must be “unambiguous.” (Berghuis, supra,
Our conclusion that use of a defendant’s postarrest, pre-Miranda silence is not barred by the Fifth Amendment in the absence of custodial interrogation or a clear invocation of the privilege does not mean that evidence overcoming those constitutional hurdles would necessarily be admissible under the Evidence Code. (People v. Aquino (1992)
In future cases, the better practice for a party seeking to offer evidence of postarrest, pr e-Miranda silence or a party seeking to exclude such evidence is to proceed by way of a motion in limine, which will offer the trial court the opportunity to develop a record as to whether the circumstances would have made it clear to the officer that the defendant had invoked the privilege against self-incrimination, whether the evidence of silence is relevant, and, if so, whether its probative value is substantially outweighed by the probability of undue consumption of time or undue prejudice under Evidence Code section 352.
Disposition
The judgment of the Court of Appeal is reversed and the matter is remanded for further proceedings consistent with this opinion.
Cantil-Sakauye, C. J., Chin, J., and Corrigan, J., concurred.
Notes
Miranda v. Arizona (1966)
Neighbor Nico Roundy testified that he did not hear any braking before the “really loud bang” at the intersection.
Justice Alito’s plurality opinion was joined by Chief Justice Roberts and Justice Kennedy. Justice Thomas, joined by Justice Scalia, concurred separately, expressing the view that Griffin was wrongly decided and therefore “. . . Salinas’ claim would fail even if he had invoiced the privilege because the prosecutor’s comments regarding his precustodial silence did not compel him to give self-incriminating testimony.” (Salinas, supra, 570 U.S. at p._ [
Defendant was not formally arrested until approximately 11:00 p.m. The Court of Appeal determined that the restraint on defendant’s freedom of movement ripened into a de facto arrest at 9:48 p.m., when police transported him and his girlfriend in a patrol vehicle to the police station for a blood test and interview.
Cockrell was tried and convicted in January 1963 (People v. Cockrell, supra,
Some state courts view the calculus differently and have interpreted their own constitutions to bar the use of postarrest, pre-Miranda silence for impeachment. (E.g., Adams v. State (Alaska 2011)
Dissenting Opinion
Dissenting. — The majority concludes a defendant may not rely on his Fifth Amendment rights as a basis for challenging the admission in the People’s case-in-chief of his postarrest, pre-Miranda
I.
The evidence of defendant’s silence — that is, his failure to inquire after the welfare of the people in the car he crashed into — was twice placed before the jury. First, during Officer Price’s testimony, the prosecutor asked him, “when [defendant] made [his] request to go home, had he asked you any questions about the condition of the occupants in the Nissan?” Officer Price simply answered: “No.” Defendant interposed no Fifth Amendment objection. Later, when questioning Sergeant Bailey, the prosecutor asked him: “So, during any of this time [prior to defendant’s arrest at the police station, did] the
The question of defendant’s silence was later raised during the prosecutor’s closing argument. During that argument, the prosecutor addressed the conflicting expert evidence that attempted to reconstruct defendant’s speed at impact, presumably because the greater the speed, the more likely the jury would find defendant was not merely negligent, but grossly so. The prosecutor argued that because defendant was travelling at more than twice the posted limit, the jury should infer that he did not care about the consequences of his actions. The prosecutor then said: “The next one I think is particularly offensive; he never, ever asked, hey, how are the people in the other car doing? Not once. . . . Now you step on somebody’s toe or you bump into someone accidentally, what is your first thing out of your mouth? Whoops. Pm sorry. I’m not saying that he has to say sorry as an expression of his guilt or as some kind of confession, but simply as an expression of his regret. Look, I’m sorry those people were hurt.
“Not once. Do you know how many officers he had contact with that evening? Not a single one said that, hey, the defendant asked me how those people were doing. Why is that? Because he knew he had done a very, very, very bad thing, and he was scared.” Defendant raised no objection to this argument.
II.
As a general rule, a timely and specific objection at trial to the admission of evidence is a necessary prerequisite before one may challenge on appeal the admissibility of the evidence. This rule of appellate procedure requiring the preservation of claims is one of both statutory (Evid. Code, § 353)
This forfeiture rule, while subject to some exceptions,
When, as here, we decide a question of constitutional law, the rule requiring a timely and specific objection is animated by more than mere judicial efficiency or practicality. “As the United States Supreme Court reiterated, ‘A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.’ ” (Santa Clara County Local Transportation Authority v. Guardino (1995)
This reasoning gains additional force when, as here, an appellate court confronts a constitutional question whose answer is both difficult and unsettled. That the issue before us today has no easy answer is amply illustrated by an examination of the majority’s supporting legal authority. It relies on (1) a hopelessly fractured decision by the United States Supreme Court in which none of the three legal theories in play obtained the support of a majority of the justices {Salinas v. Texas (2013) 570 U.S._[
Given this uncertainty in the law, considerations of judicial restraint counsel that we decline to decide the merits of a case in which the aggrieved party forfeited the claim for appeal, for “[constitutional analysis should not be embarked on lightly and never when a case’s resolution does not demand it.” (People v. Giles (2007)
The majority’s decision to extend this court’s reach to expound on a forfeited claim is the antithesis of the light step I find appropriate in this case, and its explanation for the departure from proper appellate procedure is unpersuasive. That this court can limit its review to one of several issues decided by a lower court (Cal. Rules of Court, rule 8.516(a)(1) [“the Supreme Court may specify the issues to be briefed and argued”]), as the majority observes, does not speak to whether it is prudent to overlook a party’s forfeiture to reach out unnecessarily to decide that issue. That no party sought review of the forfeiture issue is of no moment; defendant certainly had no incentive to do so, as the Court of Appeal excused his omission to reverse his conviction. In any event, this court “may decide any issues that are raised or fairly included in the petition or answer” (Cal. Rules of Court, rule 8.516(b)(1)), and the question of forfeiture is fairly included in the Fifth Amendment issue presented in this case. Finally, the cases the majority cites in support of its choice to address the issue {Southern Cal. Ch. of Associated Builders etc. Com. v. California Apprenticeship Council (1992)
Conclusion
Concerning the constitutional question of whether using a defendant’s postarrest, pre-Miranda warning silence against him violates his right against
Miranda v. Arizona (1966)
Evidence Code section 353 provides: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
“(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and
“(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”
See, e.g., People v. Hill, supra,
Dissenting Opinion
Dissenting. — As anyone who has ever watched a crime drama on television knows, a suspect who is placed under arrest “has a right to remain silent,” and “any statement he does make may be used as evidence against him . . . .” (Miranda v. Arizona (1966)
The court today holds, against commonsense expectations, that remaining silent after being placed under arrest is not enough to exercise one’s right to remain silent. If the police have not given Miranda warnings, the court says, a suspect in custody cannot later claim the protection of the Fifth Amendment unless he breaks his silence and “clearly invoke[s]” the privilege in a manner that “a reasonable police officer in the circumstances would understand.” (Maj. opn., ante, at p. 1228.)
But why? No one disputes that if the police in this case had given Miranda warnings to defendant Richard Tom immediately upon placing him in custody, the prosecutor could not have relied on his postarrest silence to show consciousness of guilt regardless of whether he clearly invoked the Fifth Amendment privilege. Why should the result be any different simply because the police did not give him the Miranda warnings until some time later? Whether warned or not, Tom knew that he had been involved in a serious car crash and that the police had put him in custody because they suspected he
Moreover, the court does not explain how its rule is supposed to work in practice. As Tom sat in the backseat of the patrol car, he was not being questioned by the police. To whom and how should he have invoked the Fifth Amendment privilege? Was he required to approach an officer on his own initiative and blurt out, “I don’t want to talk”? Would it have been enough for Tom to say just that, without mentioning the Fifth Amendment or otherwise indicating he did not want to incriminate himself? And if so, how would that have been materially different from simply remaining silent? Moreover, why should it matter whether Tom invoked the privilege to a police officer? What purpose would that have served, since no police officer was trying to question him?
Today’s decision conflicts with Ninth Circuit precedent holding that “the government may not comment on a defendant’s post-arrest, pre-Miranda silence in its case-in-chief because such comments would ‘act [] as an impermissible penalty on the exercise of the . . . right to remain silent.’ ” (U.S. v. Velarde-Gomez (9th Cir. 2001)
The United States Supreme Court has long held that the Fifth Amendment bars comment on a defendant’s decision to remain silent at trial. (Griffin v. California (1965)
I.
In this case, the prosecutor elicited testimony and made comments during trial suggesting that Tom’s silence after the accident showed his consciousness of guilt. In her direct examination of Sergeant Alan Bailey, the prosecutor asked, “So, during any of this time [at the accident scene], the defendant ever ask you about the occupants of the other vehicle?” Sergeant Bailey answered, “No, he did not.” When defense counsel objected, the prosecutor said, “Consciousness of guilt,” and the trial court overruled the objection. In her direct examination of Officer Josh Price, the prosecutor asked, “During those three hours [after the accident], did the defendant ever ask you about the condition of the occupants of the Nissan?” After defense counsel’s objection was overruled, Officer Price answered, “No.” In her closing argument, the prosecutor said that “how [Tom] acted the night of the collision” pointed to “his consciousness of his own guilt.” She said one aspect was “particularly offensive, he never, ever asked, hey, how are the people in the other car doing? Not once. . . . [¶] Not once. Do you know how many officers that he had contact with that evening? Not a single one said that, hey, the defendant asked me how those people were doing. Why is that? Because he knew he had done a very, very, very bad thing, and he was scared. [][] He was scared or — either that or too drunk to care. But he was scared. And he was obsessed with only one thing, that is, saving his own skin.”
Although Tom was not formally arrested until after he had been taken to the police station, the trial court ruled that he was under de facto arrest when Officer Price told him he was not free to leave the accident scene. The Court of Appeal below found, and this court agrees, that Tom was under de facto arrest when the police transported him to the station in a patrol vehicle. The police did not question him about the accident at that point and did not give him Miranda warnings until several hours later at the station. The issue in dispute is the prosecution’s use of Tom’s silence during the postarrest, pr e-Miranda period as part of its case-in-chief.
Because today’s opinion holds that Tom did not clearly invoke the right to remain silent and thus never exercised the right, the court declines to decide “whether the Fifth Amendment bars the use of a defendant’s postarrest, pre-Miranda exercise of the privilege against self-incrimination in the absence of custodial interrogation.” (Maj. opn., ante, at p. 1225; see id. at
The Fifth Amendment to the United States Constitution provides: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” The high court has construed this prohibition to mean that a criminal defendant has a right not to testify at trial. If a defendant chooses to remain silent, “the Fifth Amendment . . . forbids . . . comment by the prosecution on the accused’s silence . . . .” (Griffin, supra,
The question is whether the Fifth Amendment privilege against self-incrimination comes into play even earlier. The high court recently declined to resolve whether the Fifth Amendment bars a prosecutor from using a defendant’s noncustodial silence as evidence of guilt. (Salinas v. Texas (2013) 570 U.S._,_[
In a nutshell, high court precedent holds that a defendant’s decision to testify at trial effectively waives protection of his pretrial silence for impeachment purposes (per Fletcher and Jenkins) unless the administration of Miranda warnings has estopped the government from commenting on the defendant’s silence altogether (per Doyle and Miranda). Fletcher was simply an application of the general principle that evidence otherwise off-limits to the prosecution may be used to impeach a defendant who chooses to testify at trial. (See Harris v. New York (1971)
Recognizing that “the holding in Fletcher is restricted to use of silence for impeachment purposes,” the Eighth Circuit in U.S. v. Frazier (8th Cir. 2005)
In discussing compulsion, Frazier focused on the compulsion inherent in custodial interrogation, which triggers an affirmative governmental inducement to remain silent, namely, the Miranda warnings. But custodial interrogation is not the only type of compulsion that implicates the Fifth Amendment. Griffin addressed a different kind of compulsion. A defendant who decides not to testify at trial does not do so in response to any questioning by the prosecutor or the judge. His silence is not induced by any governmental assurance like the Miranda warnings, nor is it a response to any “government-imposed compulsion to speak.” {Frazier, supra,
The rule recognized in Griffin — that the Fifth Amendment privilege against compulsory self-incrimination “prohibit[s] an inference of guilt from a defendant’s rightful silence” — has found “general and wide acceptance in the legal culture” and “has become an essential feature of our legal tradition.” (Mitchell, supra,
The accusatory nature of an arrest is also confirmed by the investigatory license given to law enforcement after placing a person under arrest. Although subject to limitations (see, e.g., Riley v. California (2014) 573 U.S._ [
In this case, the Court of Appeal below summarized “the increasingly coercive circumstances” of the police’s interaction with Tom as follows: “[T]he stop in this case was not ‘temporary and brief.’ [Citation.] Rather, defendant was held at the scene for approximately an hour and a half before he was placed into a patrol car and transported to the police station. Moreover, during that time frame of approximately an hour and a half, the atmosphere surrounding defendant’s detention became increasingly coercive. In this regard, after paramedics had examined defendant and police officers had surveyed the accident scene, defendant asked Officer Price if he could walk to his home less than a block away. Price replied, T told him no. That obviously the investigation was still ongoing. We needed him to remain at the scene.’ Later, after police denied defendant’s request to walk home, Officer Fellcer removed defendant from the Toyota Canary, where he was seated with his girlfriend and Gamino, and placed him in the back of the patrol car at approximately 9:30 p.m. Defendant was held in the patrol car for another 20 minutes before he was transported from the accident scene at 9:48 p.m. and driven to the police station for further investigation. At no point prior to defendant’s transportation from the scene did police tell defendant he was free to leave the accident scene. To the contrary, defendant’s request to leave the scene was denied.”
The issue of postarrest, pre-Miranda silence typically arises in situations where, as here, the prosecution contends that the defendant, upon being arrested or confronted with contraband, showed consciousness of guilt by reacting with silence instead of concern, surprise, or indignation as an innocent person would. Penalizing silence in this way, thereby pressuring the suspect to speak and possibly incriminate or perjure himself (or both), imposes the same type of burden that Griffin found impermissible in the context of trial. If the right to remain silent did not apply at all in the postarrest, pre-Miranda context, then a suspect would face “the ‘cruel trilemma’ of incriminating himself, lying, or demonstrating his guilt by silence.” (Maj. opn., ante, at p. 1231.) Whatever choice the suspect makes, he becomes “the unwilling instrument of his or her own condemnation.” (Mitchell, supra,
In sum, a suspect who has been arrested or otherwise taken into custody has a right under the Fifth Amendment to remain silent, whether or not Miranda warnings have been given.
II.
At the same time, the Fifth Amendment “does not establish an unqualified ‘right to remain silent.’ ” (Salinas, supra, 570 U.S. at p._ [
First, it is settled that “a witness confronted with questions that the government should reasonably expect to elicit incriminating evidence ordinarily must assert the privilege rather than answer if he desires not to incriminate himself.” (Minnesota v. Murphy (1984)
Second, the high court has adopted a clear invocation rule in order to guide police conduct in the specific context of custodial interrogation. In Davis v. United States (1994)
Third, in the context of noncustodial police questioning, as in Salinas, there are additional reasons for a clear invocation rule: “That requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, see Hoffman v. United States,
These concerns are also far afield from the issue here, which does not involve an attempt by the government to obtain incriminating information from Tom. When a witness is being questioned by a government officer, a clear invocation rule gives the government an opportunity to dispel any real or perceived risk of self-incrimination and, in turn, to lawfully insist that the witness provide the information sought. Absent a risk of self-incrimination, the witness cannot rely on the Fifth Amendment in refusing to answer. That explains why Roberts v. United States, supra,
Thus, a clear invocation is required when it is necessary to put the government on notice that a defendant’s refusal to answer questions is based on fear of self-incrimination. In this case, Tom’s silence about the crash victims did not occur in response to police questioning. The dispute does not involve an effort by the government to obtain incriminating information from a suspect, and there is no similar problem of notice. Indeed, the state can hardly suggest it had “no substantial reason to believe” Tom remained silent for fear of self-incrimination (Roberts, supra,
Nor does the three-justice plurality opinion in Salinas, on which today’s opinion heavily relies, support a clear invocation rule here. (See Salinas, supra, 570 U.S. at p._[
First, Salinas, like the other cases above, involved police questioning. As its dominant theme, the plurality emphasized “ ‘the general principle that the Government has the right to everyone’s testimony.’ ” (Salinas, supra, 570 U.S. at p._[
Second, although the Salinas plurality went beyond Roberts in applying the invocation rule “even when an official has reason to suspect that the answer to his question would incriminate the witness” (Salinas, supra, 570 U.S. at p._[
After a person has been arrested, however, the context is different. As discussed earlier, an arrest entails a formal accusation based on probable cause, and “probable cause means ‘a fair probability that contraband or evidence of a crime will be found ....’” (United States v. Sokolow (1989)
Today’s decision gives rise to two additional concerns. First, in rejecting the contention that the invocation rule will give law enforcement an incentive to delay Miranda warnings after an arrest, the court says “the same incentive to delay Miranda warnings already exists by virtue of the high court’s decision in Fletcher v. Weir . . . .” (Maj. opn., ante, at p. 1234.) But this concern surely has “greater force here” (id. at p. 1235) because Fletcher involved only the use of silence to impeach the defendant at trial if he chooses to testify, whereas the issue here is the use of silence to prove guilt in the prosecution’s case-in-chief. Whatever incentive police officers may have to delay Miranda warnings when they do not know whether a suspect will end up testifying at trial, they certainly have a greater incentive to delay Miranda warnings when any postarrest silence may be used to prove the suspect’s guilt unless he clearly invokes the Fifth Amendment privilege.
Second, how is the invocation rule supposed to work in practice? Because pre-Miranda silence ordinarily does not occur in response to police questioning, the court must envision that a suspect, immediately after being arrested, will take the initiative to get a police officer’s attention and declare his desire to invoke the Fifth Amendment privilege. Assuming the suspect has the awareness and presence of mind to do that (even in a “fairly chaotic”
The rationale for the invocation rule would suggest that a suspect must make clear “his reasons” for wanting to remain silent. (Salinas, supra, 570 U.S. at p._[
III.
For reasons persuasively set forth by the Court of Appeal below, the prosecution’s use of Tom’s silence about the crash victims in its case-in-chief cannot be deemed harmless error. The jury was instructed that “[g]ross negligence is the exercise of so slight a degree of care as to exhibit a conscious indifference or T don’t care’ attitude concerning the ultimate consequences of one’s conduct.” Relying on testimony of an accident reconstruction expert, the prosecutor argued that Tom’s preimpact speed was at least 67 miles per hour, demonstrating gross negligence. But this testimony was disputed by a defense expert who estimated Tom’s speed to be around 50 miles per hour, a speed that police deemed safe for that road under certain conditions. Given this conflicting expert testimony, the prosecutor’s emphasis on Tom’s failure to ask about the crash victims was a significant aspect of her claim that Tom “was driving down that night . . . without a care of what was going to happen. I don’t care is the attitude that he had.” The improper use of Tom’s postarrest, pre-Miranda silence was not harmless beyond a reasonable doubt. (Chapman v. California (1967)
Rylaarsdam, J.,
Appellant’s petition for a rehearing was denied October 1, 2014. Werdegar, J., was of the opinion that the petition should be granted.
Associate Justice of the Court of Appeal, Fourth Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.