*1 July No. 20943. 1982.] [Crim. PEOPLE, Plaintiff Respondent,
THE HOGAN, Defendant Appellant. CARL DAVID July No. 21582. 1982.] [Crim. Corpus. CARL on Habeas
In re DAVID HOGAN *5 Counsel Denvir,
Quin Defender, State Public under appointment the Su- preme Court, Cutler, Mark E. Chief Defender, Assistant State Public and Tom Lundy, Defender, State Deputy Public for Defendant Ap- pellant and Petitioner. General, Philibosian, H. Chief Robert Attorney
George Deukmejian, General, Gen- Arnold Assistant Overoye, Attorney Assistant Attorney Tuton, eral, Ward A. Jana L. McMurray, Campbell, Edmund D. Venturi, Gen- E. Weinberger Roger Deputy Attorneys Michael J. eral, and Respondent. for Plaintiff
Opinion a BIRD, This is from a appeal judgment imposing C. J. an automatic (See Code, (b).)1 A corpus subd. habeas death. Pen. penalty § filed discovered evidence also petition newly exculpatory alleging this court.
I. the first murder degree by jury Carl David was convicted Hogan murder of Jeremy Montoya, the first degree Holland and Theresa 189.) cir- (§§ special As son. four-year-old Theresa Holland’s during present was personally cumstance it was alleged murders, he intended to cause two the commission of the than one of murder. committed more offense deaths and that he thereby true. (Former 190.2, was found be (c)(5).) This allegation subd. § to commit mur- Also, assault with intent was convicted an 217.) son, (Former Holland. infant Adam der Theresa Holland’s upon § death. penalty The fixed jury 16, 1978, in the of May the afternoon
These offenses occurred during and blud- victims were stabbed Bakersfield. Hollands’ home *6 other instruments. and possibly hammers geoned the his at the scene of on presence rested appellant The case against evidence. and other homicides circumstantial Hol- residence Dennis by in the Holland was discovered Appellant on home from work husband, when returned land, Dennis Theresa’s house, tried appellant entered the testified that as he 16. Holland May from the coroner indi- Testimony to with a hammer. sledge strike him hammer, in blood that matched which was covered that sledge cated the Code, unless to Penal otherwise hereinafter are the statutory 1A1I references indicated. have Holland and could types Montoya, the blood of Theresa Jeremy for yelled neighbors caused the wounds on the victims. When Holland out the to call the and a went back police bring gun, appellant the found and dead house. Dennis reentered home and his wife stepson and his son infant injured. from
Appellant surrendered to the several blocks the Holland He had stains He had residence. blood on his trousers and boots. also a residence, steak and a that Holland knife camera were taken from the $20 with two bills. along trial,
At maintained he charges that was innocent of the him, against that he had discovered the victims shortly before Dennis home, Holland returned and that he was at the overcome scene and was totally Appellant confused it. testified that on by bloodstains his pants and shoes were acquired as he knelt near the victims. Although he admitted had he hammer he grabbed when heard sounds at sledge door, the front appellant denied the hammer at swinging Dennis. Expert was introduced which psychological testimony indicated that Further, were killings inconsistent with appellant’s personality. this also his testimony supported claim of immobilization after psychological his discovery the victims. Several witnesses testified concerning ap pellant’s whereabouts on the question afternoon corroborate his account his activities on the day killings.2 2Appellant, during pendency of his appeal, petition filed a for writ of habeas cor- pus newly based on discovered evidence. A declaration of a coworker of Dennis Holland the evidentiary coworker, was basis petition. for the According to this Dennis had marriage, made statements prior that he had been institutionalized after se- verely beating coworker, a living. woman with whom he According was to this Dennis had confessed on several occasions to a fear that he would and family. blackout kill his allegedly Dennis revealed at times he would have argu- to leave the house after Theresa, ments with particularly bring up when Theresa would the fact that Dennis was not Jeremy. the father of allegedly like her son Dennis told coworker that he be- during upset arguments came so hitting these felt Theresa. The coworker also alleged it easy that was to leave work at shop the machine for an hour or so without detected, being punched that Dennis coworker each other’s time cards so they early. occasion could leave work did coworker not come forward with this information until after had been tried and sentenced death. court, In the return to the order show by cause issued this counterdeclaration Dennis Holland was He physically injuring any included. denied ever woman indi- cated stay that a five-month State Hospital voluntary Camarillo one to *7 drug problems. blacking overcome abuse He further ever angry denied out when or tell- ing anyone he was blacking killing worried about family. out his In view the judgment grounds, of reversal of petition on other the for writ of habeas corpus is denied as Appellant may newly moot. seek admission discovered evi- dence at the retrial of this case. Works Machine Hopper’s worked and Dennis Holland
Appellant from who had moved recently met when appellant, in Bakersfield. They work, Holland was to learned that needed transportation Oklahoma and his wife and her Accompanied by selling motorcycle. interested uncle, evening May Holland home on went to the appellant $550. Holland gave for Appellant purchased motorcycle $250 install- equal $300 balance two in cash and agreed pay A 19th and June 5th. on paychecks May ments when he received his retained a copy. Holland and each of them bill of sale was prepared by so Holland took appel- knew little about Appellant very motorcycles, instructed him in the of motor type lant for a demonstration fide and the bill of oil was written on oil to use. The name of the correct brand the evening, Carolyn Hogan (appellant’s of sale. the course of During the same wife) attended they and Theresa Holland discovered to come to dinner. church. Tentative were made for the plans Hogans 15th, and May appellant stopped by Sometime between 6th May that Dennis had told him Hollands’ house to obtain the can of motor oil home, wife but to his spoke to use. Dennis Holland was not at appellant Dennis appellant’s for 20 minutes. Holland told about about Theresa saw, told him which brand visit and Dennis later at work and appellant of oil to use. the sale the motorcycle
Theresa wanted to use the from proceeds son, her to finance so that Dennis could adoption proceedings adopt freezer Dennis wanted to use the for Jeremy Montoya. money buy his truck in the an ice cream business to supple- hopes establishing ment his income. The two to Dennis’ trial argued, according she he her Theresa then re- pushed him and shoved back. testimony, marked, don’t hit me?” and Dennis struck her on “Why you said, it shoulder. Dennis “Go ahead and do it if means Finally, ¡ much you.” homicides, However, 15th, on before the Dennis told May day been on the freezer. Dennis asked ap- that a made deposit for the him so that the freezer could be pellant picked owed money assured Dennis that would be no up Friday. Appellant payment problem. because he had a 1:30
On left work at 10:30 a.m. May exper- he had been p.m. According appellant, medical appointment. *8 it starting had difficulty and had motorcycle with his troubles iencing had a and out, they Dennis Holland he saw his way On morning. that was running the motorcycle that noticed Holland brief conversation. Appel- kind of oil. wrong using he was told appellant roughly noon, blue wearing light home, showered, and left about lant rode blue pants. shirt and house be- the Hollands’ toward walking appellant
Two saw neighbors numb, dazed, looked appellant testified that and 1 p.m. They tween 12 Jeremy Montoya saw neighbors Other and was limping slightly. some time be- the Holland house in front of girls playing two young that the Hollands’ noticed at 3:30 Another neighbor tween 2 and 2:30. were at when the Hollands drawn, was unusual were which drapes at 1:30. had been drapes open home. The son who had gone to her three-year-old
Yet another neighbor spoke question, In to his mother’s response with at 3. Jeremy over to play and Theresa Holland had in the house child indicated that he had gone 3:20, At that other neighbor’s that 3:15 or Jeremy asleep. told him son, man —not in front of appellant standing saw another age — door, house, in his several feet from the front a “slurpy” Holland hand.
Dennis Holland testified that he left work at 3:30 p.m., drove a co- home, worker stopped the freezer store and briefly by an optometrist’s office, and arrived home at He 4:10. approximately opened front door, inside, stepped and out of the corner of his eye noticed appellant swinging hammer toward him. He back and jumped the hammer missed him inches. Holland testified that appellant tried to strike him with asked, the hammer. Holland did “Why you swing thing at me?” Appellant responded, said, “What are you doing?” Holland “You must be to which crazy,” appellant “You replied, must be crazy. I’m just some doing work house. your in the Something back.” hand, Holland, still in to walk hammer
According appellant, began toward the kitchen near the back door as he talked. Holland in- stepped house, side the but backed outside when started again appellant walking toward him. Holland called out to his wife and family, told him that was all were right, they “asleep.” everything hammer,
Holland testified he told down the and then put called to his to contact the and to Two lit- neighbors bring gun. *9 came out of Jeremy’s for Theresa who were cared being
tie girls him and called the room, girls Holland napped. where they normally them outside. put briefly with Holland in the front doorway,
The two men struggled went into the screen. Holland the door and between trapping appellant so he could enter the house. with a skateboard to arm himself yard Woods, cries for help, ap- who had heard Holland’s Ben Neighbor as he was it into his waistband He tucked handgun. proached carrying house, ap- back into the When Holland went across the street. halfway wide back door was open. was and the gone pellant fence, through walking over a redwood climbing was seen Appellant head, and walking on the dog pet barking several gates, stopping walked appellant car and approached, street. A police down a nearby hands on top his put direction from the police, toward it. Without In- found a small they him down patted the vehicle. When the officers rear a steak knife in his right front pocket, camera in his right stamatic wallet, twice- contained two his which some and sunglasses, pocket, heav- perspiring $20 noted that folded bills. The officers wet. also observed They his shirt was quite and that the front of ily misbuttoned. his shirt had been Woods, entered Holland, meantime, neighbor followed by
In the went the master bedroom they Holland testified the house. blood, her feet with her head in a pool his wife lying where he found cord, around her of a sheet pieces and knotted with a black loosely tied her, still Adam next lying the infant Holland then saw throat. outside, neighbor, handed him to a asked He took Adam breathing. opened bedroom to Adam’s He returned for an ambulance. floor, covering with a blanket on the Jeremy he found door. He testified Two head wounds chest, tied rags. and his hands him to the up with last breaths. visible, Holland, Jeremy’s heard were found of blood pools They within moments. officers arrived Sheriff’s in the master on the waterbed and blood Holland’s body near Theresa and there body, found near were rags A number of bloody bedroom. doors, in that walls, dresser, and trunk closet were blood spots feet above the floor. over five were spots room. Some of in the kitchen tray a highchair blood on also discovered A bent porch. and the service the kitchen the door knob and on between counter, on the kitchen butcher knife was found and bloodied serrated on it in the ga- a claw hammer blood and a later search turned up which Holland had Police also the small hammer rage. sledge recovered on the head and handle earlier seen There was blood appellant holding. knife recovered from hammer. The steak sledge *10 kitchen, but contained no evi- matched other knives in the Hollands’ dence of blood on it. towel, it,
A wet bathroom which had no visible bloodstains on found in a trashcan in the There were bloodstains on the for- bathroom. mica area of the bathroom sink and on a tube of and a bar toothpaste on sink soap top.
The of Theresa Holland revealed autopsy numerous skull fractures and head lacerations from at least three blows to the head. Deep wavy lacerations, parallel two inches and an approximately long inch apart, were found on the back of the skull with linear skull fractures under- hammer, neath. These wounds were not caused the claw by sledge knife, hammer or serrated butcher in the opinion coroner. The coroner testified that these wounds were caused blank by point crowbar, trauma with a blunt tool, instrument such as a a carpet-laying or from a fall possibly against dresser open drawers. The nose had a small laceration and it was fractured. There were cheekbone injuries which could have been caused aby blow from a hammer or grazing direct blow from a smaller object.
Several knife wounds were also evident. One wound was on the right neck, side of the one and a approximately half inches long two inches deep. Another stab wound back, was on the left side of the through the ribcage into the about four or lung, five inches deep. Both wounds could have been inflicted aby serrated butcher knife. There were cuts on three of the finger pads on the left hand and the front of the hand between right the thumb and forefinger. These cuts were consistent with an to ward off a attempt knife attack. The lower back portion of both hands showed a redness. slight
The traumatic wounds were the cause death and were they prob- ably inflicted at about the same time. Death occurred some time between several minutes to an hour after the were injuries inflicted. injuries blunt force also revealed Montoya
The autopsy Jeremy lacerations multiple his head bore The back of and stab wounds. the entire skull. fractures over were multiple left side. There in- heavy a blow by by have caused either been wounds appeared instrument wielded a smaller much or by strument without force scene found at the the claw hammer sledge force. Either great like- more wounds, hammer was the claw though have caused could of a was indicative right above the eyebrow A laceration ly. deep was present knife. laceration motion with a Another forceful sweeping inflicted to have been All wounds appeared over nose. bridge hemorrhage cerebral Death was caused massive at the same time. injuries. due blunt force *11 infant, Holland, were
The Adam survived of his skull portions after the lack of the surgically Despite scalp, removed. lacerations to any the injuries there were fractures to both sides of skull. These could have been either struck with instrument by having caused the child been an or been having dropped. arrest,
In an examination of after found no blood police appellant his. (head and chest), in his hair but found blood stains considerable on and found the cuffs and spots his trousers Bloodstains were on boots. A on the seams of the knee. criminalist testi- pant legs up inside both fied the stains on the were not consistent with mere contact pants blood, a pool with of but were caused the As for by hitting pants. drops boots, the blood the large, stains on the criminalist testified that one which and into the heavy top stain soaked into the of the boot seeped was, cracks the in his portion between the sole and the of boot upper a opinion, pool not consistent with a into of blood. person stepping the sun- A was on the back side of lens of drop of blood found when he arrested. Traces of blood appellant seized from was glasses the In were also between the lenses and frame of sunglasses. detected been wiping the could not have caused opinion, drop criminalist’s A on of shirt col- appellant’s action. bloodstain found the back also shirt, a litmus lar. no other were visible on spots blood Although side filter test reaction for blood on front paper gave positive right in the bedroom of his A shirt had been found master gray sbirt. which it, of small on in the form both spots numerous bloodstains mist-like deposits. fin- observed a cut on appellant’s arrested appellant
The officers who were not bleeding. elbow but noted that they an to his abrasion ger which ap- at trial a of statements The introduced series prosecution three recorded most of police tape made after his arrest. The pellant of these interviews Two appellant. interviews had conducted they The third took place following were on the of 16. evening May wife, also re- police of or his knowledge appellant Without the evening. had with his wife at the at jail corded three conversations he —one 16, at 6:54 on the following 11:18 on the of another evening May also record- and a third 18. evening, morning May police on had with his wife at 9:10 on the appellant ed a conversation telephone and his wife. with the of both evening May knowledge the third with the ap- Until interview police night May crimes, maintained his innocence of the both to the and to pellant However, his wife. the third interview with and dur- during police, wife, two his ing subsequent conversations with made various admissions of which he guilt repudiated trial. interview,
In the first which was conducted on the night May appellant denied in the any part an account of killings gave *12 whereabouts from the time he left work that until the time he morning was discovered in the Holland home. In a second interview later that evening, appellant described his again recollections of the day’s events and denied harmed the having victims or been involved in having an af- fair with Theresa Holland. interview, after this
Shortly second was allowed appellant to talk with his wife Carolyn. The recorded police their surreptitiously conversation. Appellant explained the events of the afternoon to his wife and repeat- denied edly hurting anybody.
Appellant to his wife spoke and the again following evening, po- lice recorded again surreptitiously the conversation. Appellant contin- ued to his deny but guilt, began express doubts about his due sanity, to the fact that I’m “everybody says crazy.” conversation,
Less than an hour after this
conducted a
police
third
The
officers
questioning.
police
reminded
again
appellant
his
(Miranda
Miranda rights
v. Arizona
In response to a series of he questions, appellant said did not know why, but he hit had her. He he did said not remember how he hit her. After twice if being asked used the he he had hammer had in his hand home, when Dennis came said he appellant so. When thought asked why had her tied said up, appellant he did not think he had. Throughout this was questioning, appellant sobbing.
In response to questions about where he had obtained extension cord used to tie up Theresa and the knife victims, used to stab the ap- pellant said that he found them both appellant floor. Once inter- jected, kill, “Oh. I killed them. Oh God. Oh God.” and then “I my don’t ” I don’t kill .. . . people denied Appellant sexual having attempting relations motivation, with Theresa. He that denied was the money say- ing the Hollands were too. At the poor end questioning, all, when asked said, what caused it “I want Carolyn have I can’t everything. give her nothing.” Appellant emotionally wrought weeping during became so questioning eventually upset that he vomited. The acknowledged officers finally *13 could not his ended the regain composure and questioning. later,
Ten minutes was allowed to appellant wife. Both telephone he and his were wife advised that conversation was recorded. being husband, Before Hogan spoke to her told her Carolyn police that he had admitted for the murders and responsibility very upset. was Appel- what, was, lant’s first remark to his “I wife don’t know I’m a murderer. I can’t get over I’m a wife asked if was it murderer.” His he sure he did know, or was he just so confused didn’t that he appellant replied he He thought thought did it. said he he hitting baby remembered but did not recall was unable stabbing Theresa Holland. He to offer I be- said, murderer. can’t “I’m a had done it and reason he why any I don’t kill people.” lieve it. on the jail visited him when she to his wife spoke again
Appellant he had commit- why 18. He didn’t know next day, May morning explanations. details or to supply any and was unable ted the killings it, said, know.” At he “I don’t he had done When asked if he was sure wife, telling me and I keep keep asking he said to his one point “[Y]ou like ’em.” just I don’t know. You’re you trial, that the motive for the murders was
At the prosecution argued $20 the two bills and the Instamatic camera robbery pointed as evidence in appellant’s pockets support which the found police this theory. $50 he had his wife
Dennis Holland testified that on May given $10 bill from his wife’s to hold for him. The took a following day $20 wallet, it, the wallet in a saw that there were two bills in and placed $60 Holland had told the on 17 that there was diaper bag. police May $20. in his wife’s wallet and that he had removed A defense investigator $5 had police stated that Holland had told him he removed a bill. $20 informed Holland 17 that two bills May carrying when he was arrested.
A the where- regarding number of law enforcement officers testified While several different versions abouts of Theresa Holland’s wallet. and investigators regarding exactly were sheriff’s given by deputies discovered, when, where and Theresa Holland’s wallet was all by whom that the wallet was discovered in the house after the house agreed the wallet had no in it when money been sealed and that found. trial, innocence, he did not although try
At asserted his her son. He establish who had killed Theresa Holland and actually restaurant, store called witnesses auto store and 7-Eleven parts from of the mur- day about his whereabouts and movements on testify ders. also took the stand. Appellant *14 was to the medical center from driving that as he testified
Appellant It then home, smoke and vibrate. spew his motorcycle began it, After several unsuccessful to start stopped running.3 attempts appel lant left the outside a restaurant4 walked to the motorcycle nearby house, Holland which one-third of a mile about a seven- away, minute walk. that he didn’t know in the Appellant explained anyone area and wanted to tell Theresa that was at the restaurant so she could send her husband him help start the when he re motorcycle turned from work. testified that he
Appellant from the Holland residence telephoned and cancelled his medical He with appointment. played Jeremy visited with Theresa Holland for an hour. approximately Appellant mentioned that his wife had been him to a camera to take asking get pictures of their daughter topic Theresa and had earlier Carolyn —a camera, discussed —and Theresa Holland loaned him her which appel- lant took with him when he returned to his motorcycle. Before left, he asked Theresa to have Dennis come to where the motorcycle was parked.
Appellant stated that he returned to his but still could not motorcycle start it. He walked store, to a auto nearby parts hoping remedy new problem He spark was unable to determine the plug. specif- ic spark he needed. The plug sales clerk at the store remembered him there being between 2 and 2:30.
Appellant testified that he then had a of coffee at the cup restaurant near where he had left his A cook at the motorcycle. restaurant saw a man who resembled at a booth with a sitting cup coffee be- tween 2:30 and nervously out the window of the restaurant looking before at around 3 leaving p.m. testified that he then Appellant went back to his motorcycle, waiting for Dennis for some time.
Appellant stated that he walked to a store which was 7-Eleven sever- al blocks from the Holland residence and some A purchased cigarettes. clerk from the 7-Eleven store recalled that she was counting money in her cash drawer at the end of her 8 a.m. shift p.m. work when 3Appellant’s motorcycle wife testified that the repeatedly stalled when she had ridden with her days husband a few before the homicides. Her uncle and aunt testified they that when May had borrowed the stopped running it had ¡motorcycle sever- al times and finally pushed had to be back home. motorcycle by evi- police. 4The was found at the restaurant later that afternoon No motorcycle prosecution dence was offered defense or to establish whether signs showed of malfunction. *15 testified that The clerk also cigarettes. purchased entered and appellant 10 or 20 left work about car as she in a police patrol she saw appellant noted un- nothing The clerk had purchase. after the cigarette minutes did not notice She purchase. the cigarette usual about appellant during upset. nervous or nor was he bloodstains on his clothes He was as follows. few minutes of the next account Appellant’s knocked residence. He to the Hollands’ walked from the 7-Eleven store door, Theresa, he heard thought for and on the called partially opened little for whom girls He entered and saw the someone “come in.” say They just where Theresa was. Theresa was He asked the caring. girls hall, down the their He continued playing. lookdd at him and resumed door he saw bloodied opened for Theresa. Behind a calling partially he did not recog- testified that Appellant of Theresa and Adam. figures first, wife and that his own thought nize Theresa Holland at sick, and was not sure He felt confused and daughter lay before him. room, it felt like a time. He long how he remained in the long although actu- about his father him with a belt could kept thinking whipping feel the as well about how he let his ally parents He whipping. thought He he never fully down when he couldn’t football more. said play any Holland, he did although eventually realized woman was Theresa realize that it wife was not his Carolyn. several times and appellant who examined
A clinical psychologist testified by sodium amytal, when was administered present appellant before the terrible scene had related appellant way explanation he had his slapped incident in which him to his own about a recent guilt suffered a flashback to beatings hand.5 This then daughter’s triggered the trau opinion as a child. The psychologist gave him psychologi immobilized discovery ma occasioned by appellant’s cally. bedroom, testified that while he was in the
Appellant he recalled Theresa, near his shins her as he felt her kneeling bumping against cheek He for warmth. recalled his them dropping sunglasses wiping off on his He heard from outside leg. the house someone “Get over say, the fence.” 5AppeIlant’s Carolyn, wife her aunt and her niece all testified that sometime in the homicides, days preceding slapped one-year-old daughter
ten Carolyn keep Heather’s hand when had told him plants. Heather out of the house slapping, These three witnesses testified that after the appellant’s eyes tears came to very upset. and he was
Appellant stated that he went to the room where the were girls play- and told them not to out ing come because bad had something happen- and, ed. He said he heard a at the room rattling living door the thinking returned, killer had a picked up hammer he found on the floor sledge and stood the door with the hammer raised above his When head. door, Dennis Holland came the through testified that he low- appellant ered the hammer and did not to strike him with attempt it. Appellant said, God, Dennis, me,” recalled that he “Oh scared and that Hol- you too, land replied, “You scared Carl.” Appellant me also stated that he started to tell Dennis that wanted Dennis to work on the he motorcycle, but Dennis him. indicated that when interrupted Appellant Holland him for an pressed explanation of did not why family answer his calls, said, now, understand, he “Theresa’s don’t asleep she’s dead.” you
Appellant testified that he saw a with a neighbor approaching in gun response to Dennis’ shouts for help. became fearful Appellant of being shot, door, walked out the back an picking up Instamatic camera from the floor and a kitchen from a table as he left. He knife took the knife to defend himself but was unable to when explain cross-examined why he took the camera. The also elicited from the prosecution not, fact that he had in his prior statements about camera, ever claimed that Theresa had loaned it to him. $40
Appellant also denied from Theresa’s wallet. taking Appellant stated that when he cashed his he paycheck bought motorcycle put most of the Cash his wife’s as was his remaining purse custom. $20 He said that he a kept bill and some from this amount and change $40 that he $20 later took another bill from the This purse. him gave which he to use for a Mother’s planned for Day anniversary present his wife. He recounted that he put the a shirt in his locker at money work and that for several he to retrieve the days kept forgetting money and take it home. The weekend before the who killings, Carolyn Hogan, had noticed that the left from her husband’s first money paycheck fast from her said she needed some disappearing purse, money. Appel- $40 lant told her he had with which he had work her planned buy present. and her aunt following Monday, May Carolyn planned dress with the was irritated when buy money. Carolyn ap- pellant forgot to home from work. The next bring money day, May remembered to in his put money pocket to bring aunt, home. her and her cousin testified that Carolyn Hogan, on the homicide, night before the had told his wife that he had left áppellant for Mother’s Day her a dress buy at work but was money going the money. trial, he had told po-
At that on appellant acknowledged May He that when he made lice that he he hit Theresa. said thought true, it it be he did not remember although *17 admission believed he would have done and could not conceive of a reason happening why it. After that the and other outside had people told being by police girls it, seen him he that he must have done it. He that thought do believed he had and The maybe help. following Sunday needed gone crazy mind, however, remembered Theresa changed finding his because he and and didn’t remember seeing Adam Holland on the floor already Jeremy all.
The details of first two prosecution appellant’s exculpatory used the it was elicited example, statements to his trial For impeach testimony. that statements never mentioned into appellant going in those store, either the motorcycle restaurant or the 7-Eleven his waiting by after the auto store. In these first statements to the leaving parts police, appellant said that he returned to the Holland residence at about 3 p.m. trial, At it was the defense that did not return until theory appellant after 4 did p.m. and not have sufficient time to commit the be- killings fore Dennis Holland’s arrival.
Also, appellant, his statements to indicated he did not touch police, trial, At Theresa. he testified that he her with his bumped up against cheek, shins and touched her her to move. The ar- causing prosecution that gued such were made to changes testimony explain blood- stains on appellant’s pants.
The defense wit- expert psychiatric introduced the of two testimony nesses. Dr. had conducted a sodium Phillip Kelly, psychiatrist, amytal interview with The trial court refused to admit a appellant. videotape the two-and-one-half-hour interview as evidence that was not appellant However, was allowed to tes- memories of the repressing killings. Kelly interview, to his that tify opinion, amytal appellant based on sodium was not that a under influence of Kelly explained subject repressing. sodium lie but that if a trance good hypnotic could amytal intentionally were memories would sur- induced drug, involuntarily repressed trance quite face. He said that had entered into a appellant hypnotic While in suggestible person. concluded that he was readily very Hol- trance, harmed Theresa having said about appellant nothing land or her son. his also testified regarding
A clinical Dr. psychologist, Roger Wright, interviewing appellant. conclusions after extensive examination when he discovered processes testified about Wright appellant’s thought felt con- appellant the bodies in the Hollands’ house. He concluded father, as a husband and a and found siderable about failures guilt he had suggestible people was one of most readily the evidence related ever encountered After professionally. hearing above, the special convicted as found jury charged to be true. circumstance allegation witness called to followed. was the penalty phase Appellant only *18 offenses, was 24
the stand. He testified that at the time of the years record, arrest- old. had no criminal and had never been Appellant prior was 17 or 18. ed for an AWOL incident in the when he except Navy infant child. had been married for and had one Appellant eight years coming had worked at several Oklahoma before Appellant jobs since he first obtained California. He had worked fairly continuously a total of about been as an adult for employment, having unemployed one month. testified that he did not use or alcohol and had been
Appellant drugs involved in church from 1971 to 1977 membership work ministry no evi- with the of God Church. The Assembly prosecution presented dence at the returned a verdict of death. phase. penalty jury
II. Voluntariness his third statement to the Appellant po- the admission of challenges lice and his statements to his wife. contends subsequent Appellant He argues 17th statement made. May police involuntarily that it was the of of also product promises help by police. Appellant of his proof contends that false státements conclusive police regarding crimes while that he had committed the guilt, coupled suggestions ill, Appel- amounted to coercive mentally psychologically brainwashing. lant contends that the other made to his wife the same night statements the initial were tainted of following morning by illegality statements.
835 facts This court must examine the uncontradicted surrounding whether the independently of the statements to determine making met its burden and that the statements were volun prosecution proved inducement, intimidation or without threat. tarily given previous 218, 163, (1977) 571 v. 20 Cal.3d 227 McClary Cal.Rptr. (People [142 (1974) 190, 12 198 Cal.Rptr. P.2d v. Cal.3d 620]; People Haydel [115 394, 948, (1970) 1 524 P.2d v. Randall Cal.3d 959 866]; People [83 658, (1969) 562, v. Sanchez 70 Cal.2d Cal.Rptr. 114]; P.2d People 642, 571-572 With to the Cal.Rptr. 74].) respect 451 P.2d conflict the court must that version of events which is ing testimony, “accept most it favorable to the to the extent that is People, supported by Randall, 954.) record.” at Cal.3d The burden of (People supra, p. proof which must be sustained the prosecution on of volun by questions tariness is proof beyond reasonable doubt. v. Jimenez (People 21 Cal.3d 580 P.2d 672].) The police which consisted of two questioning appellant, sessions on the night 16th and a further May session on the night May 17th, was officers, conducted two Officers Orman and Clen- denon. The officers the first began interrogation approximately p.m. May about an hour and 40 minutes after appellant’s arrest. most of Although recorded, the questioning was tape Officer Orman testified that interviews, before each three there was conversation *19 between the officers and was appellant which not recorded. Orman stat- ed that there were about 10 minutes of conversation before the first interview. Orman admitted saying to in this appellant unrecorded por- tion of the interview that “if there was a mental problem involved in this situation that I would like to know what it was and we would see what we could do to help him.” Orman stated that the unrecorded por- tion was preceded Miranda and an warnings agreement by appellant to speak with the The officers. taped portion of the first interview com- menced with Miranda warnings appellant’s stated understanding of rights agreement to talk to the police.
The taped portion of the first minutes, interview spanned 47 termi- about 7 nating It p.m. consisted of appellant’s explanation of his whereabouts on that and his day exculpatory statements concerning how he came to discover the victims in the Holland house.
A second interview commenced at the jail about 9:30 p.m. The sub- stance of unrecorded initial portion of this interview was the subject of some dispute between the two police participants, Orman and Clen- that the two appellant girls
denon. Orman testified that Clendenon told in the had commit the homicide and that he appellant house observed (Clendenon) Clendenon had committed crime. thought appellant seen appellant hitting testified that all he said was that girls but he that at an earlier he had denied Jeremy, hearing acknowledged to about what the had seen. In substan saying anything appellant girls events, tial with Officer Orman’s version of agreement appellant testified that Clendenon had told him that the two had seen him girls do it.6 of the second interview discloses that taped portion
continued to maintain his innocence while sec- questioned. This being ond interview concluded after 30 minutes of questioning.
Later that was to see his wife and this con- night, appellant permitted versation was recorded. denied com- secretly Again, appellant having mitted crimes. He insisted that he “wouldn’t hurt no little any baby.” wife, his Appellant portions saying recounted to his interrogation that the had said don’t tell us that did it then “‘Why just you you we’ll get for like I’m nuts and I’m not nuts.” He also said to help you’ his wife if acted like I like I’m nuts me “[T]hey pleaded they’d get off.” Near the end of the conversation, said, “The little girls said that saw me but I He know didn’t. they they just trying make me think that I was But I didn’t do said crazy. anything. They ’em, didn’t, saw me and I hit see and I know didn’t. Cause I they they so how could they.” remained in the next and was
Appellant custody day, permitted The police at 6:54 speak evening p.m. wife again following continued Appellant recorded conversation. again surreptitiously *20 uncertainties about whether express but to deny guilt, began¡ whether he was crazy. Appellant committed the homicides and about lacking support testimony Clendenon’s that he did not 6Substantial evidence is to question. appellant only make the in Clendenon’s version that he had told statement girls hitting Jeremy previous was at odds with his de that he had been seen the two mentioning girls had The two other anything nial of about what the seen. conversation, Offi participants in the Officer Orman and both recalled that appellant, question. cer the statement in Clendenon made Also, testimony appeared court to credit Officer Orman’s over that of Offi- the trial argument hearing response cer In counsel’s at the voluntariness Clendenon. defense disregarded “according testimony should be because to him that Officer Clendenon’s details, nothing happened,” trying while Orman was to remember the trial Officer judge responded: problem with that.” “I have no who mentioned the statement about repeatedly prior police eyewitnesses him that appellant had seen commit the homicides and suggestions needed mental help.7 this conversation
During appellant’s wife also told him that the police “said that that her.” She also him “I it they proved you raped told mind that when I came in my here that were tell me the you gonna truth, did it you and that her.” Near end you raped of the con- versation, told it and “everything points you doing you don’t seem like you can come up anything didn’t do says you it. If on, there was stand just one One of anything thing.” appellant’s last comments to his wife was “You be gotta to kill crazy somebody.” Appellant’s conversation, voice was emotional highly this during break- ing frequently at times lapsing into sobs. following exchanges 7The are illustrative: “Hogan: Carolyn, crazy, I’m not am I? Carl, know, “Wife: I you don’t know. I don’t don’t know. “Hogan: But I’m crazy not—I’m not now. know, Carl, “Wife: I you gonna but don’t somebody’s know what split do in a sec- saying your’re
ond. I’m not crazy. you I don’t think are.. .. Carl, saying you’re crazy “Wife: I’m not you and I don’t crazy think are but I do people go deep just know off the end of a sudden you’re not above it and nei- —all ther am I .... Well, Thurston, night, Thurston, “Wife: the officer I Sergeant talked to last he told thought you me that he went berserk and done it. “Hogan: I go had no reason to berserk. Uh, else, “Wife: Yeah. they put you if somebody you another cell with better you’re watch doing what because Uncle they’ll you. Harold said kill “Hogan: Maybe I deserve it too. it, don’t, you If you “Wife: didn’t do you Carl. And even if you went berserk still don’t deserve you’re it because sick. Yes, “Hogan: I do. “Wife: talking Don’t start that-a-way. say you You didn’t do it. “Hogan: If I do I don’t know. Why? “Wife: “Hogan: everybody says Because crazy. I’m I don’t know .... « “Hogan: ... but even the detectives said that the kids saw me hit them. Well, old, they “Wife: though won’t take those kids’ word years they for it —three just ages. were two and three —their Yeah, “Hogan: they talking. but were talking? “Wife: Who was “Hogan: talking. The kids were I want them to take their word cause I think those lying. girls detectives are I think those little help might wrong could me out. I be just but —but I don’t myself know. I don’t know. I couldn’t stand to know that I did it *21 it, in craziness because I still did it. That’s what I’m you you afraid of. And if did did it, you’re crazy don’t matter if or not.” conversation, police questioned ap- this the Less than an hour after the interview There was of again portion the third time. pellant for that recorded; the Officer Orman indicated police. tape by that was not had a mental appellant the of whether he again brought up question a particular problem why that “if there is He told problem. appellant me and if it’s a mental been committed let know this could have thing with this of be, we can help you part whatever it problem, might maybe know what might happen.” the treatment or you with a reading this third interview began The of taped portion each right. was asked if he understood rights, appellant Miranda and wished to talk to that he understood the rights indicated Appellant about where he had appellant the The officers police. began questioning $20 said that he Appellant bills found in his wallet. obtained the two Day pre- had the for an and Mother’s saving money anniversary been with the appellant sent for his wife. The then confronted police $20 Holland’s that two bills were from Theresa missing information wallet, that she did not know and that wife had told appellant’s police $40 him that accused appellant day. police appellant when went about the asked to focus on he lying appellant then money, appel- into the bedroom and saw Theresa and the At this baby. point, statements described lant and made the began sobbing incriminating earlier.
It this that this court must inde is factual against background has sustained its burden prosecution determine whether pendently statements were appellant’s doubt that proving beyond reasonable voluntary.
“The cases in court clear the earliest time that any this are from or promise express implied, made an officer or person authority, accused, if it is a cause of motivating leniency advantage to confession, is sufficient to invalidate the confession and to make it and inadmissible as a matter of law.” Brommel involuntary (People Cal.2d 364 P.2d 845].) The comments made to to the first and appellant by police prior if he third an interrogations clearly implied advantage that, it if would cooperated, talked since was indicated we do him. The use of such as “we would see what could help phrases we can with this treat help help you part [you]” “maybe (italics added) the clear carry ment or know what you might happen” if he more lenient treatment could implication expect *22 839 in in used language than if he his denials. persisted were to confess held in the case of v. this similar to that quite improper People case is said (1902) where the sheriff 487], Cal. P. Gonzales defendant, re he he for the if the defendant “would do whatever could” pudiated guilt.8 his denial and admitted case,
In the instant the of these statements is made clear impact by to his wife which were his appellant’s comments recorded without conversation, In that he said the officers told him knowledge. “‘Why don’t it for tell us that did then we’ll While you just you get help you.’” mere exhortations the a to tell truth im police to the are not by suspect court proper, this has drawn the line between such exhorta repeatedly tions and or “When express implied promises leniency. the benefit pointed out the is by police suspect a that which flows natu merely a rally conduct, from truthful and we honest course of can perceive hand, On nothing improper .... the other if .. . the given defendant is to understand that he in the might reasonably benefits nature of expect more lenient treatment the hands of police, prosecution or court statement, one, consideration of making even truthful such moti vation is deemed to render the statement and inadmissible.” involuntary Hill (People 66 Cal.2d 426 P.2d 908].)
The prosecution statements, seeks to uphold admissibility despite First, the offers of it police help. is contended that ap because pellant did not admit to ill his being mentally state incriminatory ment to the police, he was not affected inducement. This argu ment fails take into account the condition while appellant making the statement. Appellant was sobbing uncontrollably throughout statement and vomited. The police were forced terminate the interro gation due to appellant’s inability control himself or answer coherently. Any failure by appellant under these ver circumstances to balize that he had a mental does not problem reasonably support suggested inference that was free of the influence of the po lice offer of help when made the statement.9 This factor is clearly Gonzales, 8As scarcely reasoning this court held in “It needs to show that a state- free, ment as extorted was this one is voluntary not statement which the law contemplates shall alone promises be admissible .... That inducements and were thus doubt, destroy voluntary held out sufficient to nature of the statement admits of no statement, amounting guilt, to an admission or confession of was therefore clearly (136 668.) p. inadmissible.” Cal. at 9It appellant’s is claimed that statement admissible because the did not However, promise escape penalty prison. would the death Hill states *23 the carry prosecution’s demonstrating
insufficient burden of volun- in the face of the prior police help. tariness offers of also that the inducements were not the prosecution contends is factor” behind statements. Reference “primary motivating appellant’s at the voluntariness portions appellant’s testimony made to certain of at time he had which stated that the confessed he hearing, been the that had committed the homicides. Ac- police convinced he appellant’s a that supports this cording respondent, testimony finding was not induced of benefit. testimony by any promise However, this is both flawed. While factually argument legally had police did indicate that the had convinced him he homicides, were linked out and committed the such indications blacked help. the of treatment or In ef appellant’s testimony to offer mental fect, him that he had was that appellant’s testimony by telling falsely homicides, been observed convinced him committing police homicides and thus needed the committed the unknowingly Thus, fairly mental were cannot help they offering.10 prosecution claim that indicated that of testimony promises help appellant’s Brommel, v. 56 were not “a Cal.2d cause.” (People motivating supra, 632.) p.
Indeed, reliance on a belief induced is by police deception par misplaced. While the or ticularly deception use communication false to a not render information does alone a state suspect resulting (see (1967) Arguello ment v. 65 Cal.2d 775 People involuntary 423 P.2d such is a factor which 202]), deception ” (Hill, expressed, may be be su implied benefit “need not but .... promise that a of a might 549.) “with help happen” An offer of treatment ... what pra, p. Cal.2d at 66 specifications necessary are not clarity that understand is of sufficient further of the inducement. nature making his following regarding his motivation for in the fashion 10Appellant testified statement: my great off why her that it would be a load me I would tell him I hit “He told if along help me this is statements possibly and of course chest and that he could time, having a crazy, I I hard hospital, I didn’t want to think was was about the mental crazy, but be- I want that I was pulling myself, within didn’t to admit I was kind investigators say again crazy, but I I couldn’t see didn’t that I was as cause I feel me; know, girls twenty people saw me kill them and two you and if some odd lying to them, help.... and wanted I have killed them I house saw me kill must inside the thought wanting I I mentally I treatment because ... thought I sick and was “I was ob- thought help I officers would me put away be I needed to sick help.” tain this
841 (N.D.Cal. v. Wilson a (Atchley weighs of voluntariness against finding 1968) 68, 71, v. New York Spano F.Supp. citing U.S. Also, is 1202]). L.Ed.2d 79 S.Ct. which “used deception to make more plausible” promise assistance does render state- (United (2d States v. ment 1964) inadmissible. Cir. 329 F.2d Murphy 68, 70; United (S.D.N.Y. 1966) States Denno see also F.Supp. *24 784.) The conversation with wife surreptitiously taped appellant’s short- ly before the statement was that incriminating made demonstrates false information had caused to doubt regarding eyewitnesses own his thus made more sanity, plausible police offer of help for any problem mental appellant might have.
Indeed, this and other forms of communicated to deception, ap wife, pellant by bear on a issue heavily separate appellant, raised by i.e., whether the statements were the product of coercion. psychological This court has concluded that appellant’s statements were involuntary due to promises implied An leniency. examination of other circum stances outside that framework us analytical leads to conclude further that there is evidence of other forms of coercion that psychological raises a doubt as to whether strong appellant’s were statements truly volitional.
In determining overborne, whether not an will or accused’s an examination must be made of “all the surrounding circumstances —both the characteristics of the accused the details of the interrogation.” (Schneckloth (1973) Bustamonte 218, v. 412 U.S. 226 L.Ed.2d [36 854, 862, 93 2041].) question S.Ct. The the due clause posed by process in cases of claimed coercion is whether the influences psychological to brought upon bear the accused were “such toas overbear petitioner’s will to resist and bring about confessions not self-determined.” freely (Rogers v. Richmond 534, 760, (1961) 768, 365 U.S. L.Ed.2d [5 coercion, 81 S.Ct. are 735].) Statements which “the either product physical cannot stand ... used to psychological, because methods extract them offend an in enforcement of our underlying principle criminal law: that ours is not inquisitorial an accusatorial and an system which the State must establish evidence system guilt by —a secured and its independently freely may prove not coercion (Id., of his charge an accused out own mouth.” 540-541 against pp. Also, 766].) L.Ed.2d at coerced are of reli- p. confessions doubtful [5 v. Garner (1961) 57 Cal.2d (People ability. Cal.Rptr. (cone. J.).) 367 P.2d opn. Traynor, 680] ap- between
The conversation tape recording recorded secretly wife, police interroga- which occurred before the shortly and his pellant 17th, of appellant’s is vivid evidence of the deterioration of May tion of his guilt under the of manufactured evidence pressure will resist ill. The crimes while mentally that committed the and suggestions emotional state. voice him be appellant’s highly tone of revealed had they proof said His wife informed him that existed, fact, no such since proof Theresa Holland. In raped swabbing Theresa nor the arrest performed post neither the autopsy activity. provision recent sexual appellant’s pubic area indicated has members the accused information inculpatory by family of false coercion. (People held be evidence of psychological been Alfieri 304].) 544-545 Cal.App.3d *25 conversation, ap- this followed police closely In the interrogation to maintain continued emotionally. Appellant voice pellant’s quavered seeing in and him to remember going innocence until the officers asked the first caused appellant, This had question Theresa and baby. before, composure begin lose his and day conducted the interrogation appel- same from response question triggered sobbing. Again, more ques- and several and sobbing crying lant. After 30 seconds tions, hit the little In baby. approximate said he appellant un- to sob continued that followed interrogation appellant half-hour of during answers to questions of his at times. Some controllably, vomiting halted one was by Finally, interrogation were incoherent. period this composure “not going get was appellant of the officers because [his] back.” his wife and
The call between phone appellant officers arranged The him. the police stopped questioning which minutes after began still and sobbing was appellant that conversation shows recording of appellant he admitted by why guilt, When asked his wife semi-coherent. I sick and got want to talk to me. ... They “I don’t know. responded be due appellant’s had to terminated cold.” This conversation also uncontrolled sobbing. testified morning the next in court
An who saw attorney hppellant Ap- court. sobbing and moaning, sniffing was crying, that appellant than to sob other questions, attorney’s to answer pellant was unable When the attor- know, know, I’m so confused.” I aon’t “I and don’t say, said, anybody, appellant the case not to discuss told ney Orman, “Not even Joe?” testified that Joe one of the Appellant interro- officers, gating was the Joe he knew in only Bakersfield. statements appellant’s
The of the circumstances totality surrounding While no raises a doubt as to their volitional character. strong physical occurred, coercion also includes “the brainwashing abuse of appellant that comes from .... repeated suggestion prolonged interrogation sures are [11] ... It is a truism of the modern world that applied most persons will confess .. . . ” when (People sufficient pres- Andersen It was 707].) Cal.App.3d repeated- that he was and that he ly suggested unquestionably guilty suffered from mental of his illness. certainty guilt suggested by references to nonexistent deceptive proof of eyewitnesses rape. officers, These came not from the but also only interrogating ap- from pellant’s wife. The mental illness was raised question appellant’s officers interrogating reinforced wife and again by appellant’s her communication to him that another yet officer thought had gone berserk and committed the homicides.
On this basis, evidentiary this court cannot conclude a rea- beyond sonable doubt that appellant’s admissions were “freely self-determined” as required by (See Richmond, due process. *26 Rogers v. 365 U.S. supra, 544 p. L.Ed.2d at p. 768].) [5
The determination that appellant’s third statement
to the police
was involuntary affects the
of the two
admissibility
subsequent conver
sations with his wife. The
conversation,
first
over
taped
phone
the knowledge of appellant
wife,
and his
occurred
ten
just
minutes after
the completion of the third police interview. The second subsequent
conversation
„of
took place the following
at the
morning
jail. The rule
law governing repetitions of incriminating statements was stated in Peo
v.
ple
(1969)
Johnson
541,
70 Cal.2d
547-548
401,
Cal.Rptr.
450
[75
865,
P.2d
43 A.L.R.3d
“Where an accused makes one confession
366]:
and then testifies or upon subsequent
confesses,
questioning again
it is
presumed that testimony
second confession is the product first.
...
prosecution
[Citations.
has the burden
]
showing
[T]he
”
break in the causative
(See
chain.
Jimenez,
.. .
also
v.
People
supra,
844 were full whether the statements determine
It is
to
unnecessary
were ad
they
it is assumed that
Even if
or mere admissions.
confessions
v.
(Chapman
test of prejudice
to the Chapman
missions subject
709-711,
705,
18,
87
22-24
L.Ed.2d
(1967) 386 U.S.
[17
California
to
824,
subject
than confessions
1065]) rather
S.Ct.
24 A.L.R.3d
(1967) 67
(see
v. Powell
People
test
prejudice
generally
se
per
817,
the error
admit
32,
137]),
429 P.2d
51-52
Cal.Rptr.
Cal.2d
[59
and the two subsequent
the police
third statement
ting appellant’s
(Cf.
v. MacPherson
People
his wife
prejudicial.
statements
129,
The
17].)
judg
465 P.2d
(1970)
Cal.Rptr.
2 Cal.3d
shows
a reason
beyond
the prosecution
ment must be reversed unless
the verdict.
v.
(Chapman
that the error did not contribute
able doubt
18;
20 Cal.3d at
McClary, supra,
v.
People
U.S.
California, supra,
230;
66 Cal.2d
v.
p.
People
Spencer
which inferences could varying “Oh, I them” and killed tape saying own voice on appellant’s hearing underestimated. It is also significant “I’m a murderer” cannot be of all state- transcripts taped deliberations requested jury during statement of the inadmissible provided transcripts ments and were call between and his and the subsequent telephone 230.) (Cf. 3d at Since the er- p. Cal. McClary, supra, wife. People statements was one of federal constitutional ror in admitting doubt, harmless a reasonable beyond dimension and cannot be deemed be reversed. must judgment III.
Jury’s Evidence Consideration of Unadmitted *27 16th taped to hear the permitted May jail- the was Although jury wife, portion and his one was house conversation between the That portion trial on the motion of defense. excluded the court lie test and his to take a detector unwillingness concerned appellant’s of unless he took jail that would not out get wife’s comment one:
“Carolyn Hogan: tell them don’t to a lie detector Why you give you test? I I Hogan: want ... I want don’t to take possibly [or won’t]
“Carl one.
“Carolyn Hogan: Why? Hogan: Because word is if the my good, what machine
“Carl messed know, and what if up [then, they there just you hesitation] — are. you There is too ifs in of many one, one them. I told I’d them take did you realize that?
“Carolyn I realize your chances are slim Hogan: out getting of here without one.”
When the tape appellant’s 16th conversation with his wife May was for the played jury case, the during prosecution’s the district attor ney skipped over this portion because the trial court ruled had that the passage However, was unduly prejudicial. the first during day delib eration, the at 3:20 jury p.m. court, to hear requested the tape. counsel,11 without sent the entire notifying tape into the room. jury Lat afternoon, er in the just before the was excused for the the jury day, trial judge told counsel that the had tape been sent to the jury. After defense counsel reminded him the about inadmissible of the portion tape, the trial called in judge the He found jury. they that had already listened to the and excused at tape them 4:30 p.m.
The next the morning, jury commenced their deliberations at 9:30 a.m. After the court had a colloquy counsel and sometime before a.m., 10:50 the was jury admonished disregard portion that of the which tape been previously excluded.12 11Appellant’s provision jury contention that the of exhibits to the without notification right counsel infra, pages denied him to assistance of counsel is considered 848-850. 12The trial jury following language: court admonished the in the gentlemen. “Ladies you morning get I have this you called before too far in your you tape recording. thirty deliberations to People’s talk about nine. Late
yesterday you requested recording afternoon and apparently tape listened to a that is record, People’s thirty nine. previous- For Mr. Wilkinson indicated it was. You had trial; ly during however, tape heard that you course of the at the that time heard tape recording previously tape I had ordered a certain part that of that be omitted. “Now, inadvertence, through portion tape not omitted when the was sent in Now, you, yesterday. portion referring that I am tape I have refer- ence to wife.asking concerns the defendant’s a lie about detector test and defendant *28 indicating, going quote and I am here them I ‘I told would take one.’ “Now, portion that was stricken Court perhaps you out of the and remember when
846 and conceded by respondent
It is contended by
which
which was not admitted is error
the
of evidence
jury’s receipt
v. Boyd
creates a
of
to the
presumption
prejudice
appellant.
(People
577,
(1979)
586
v. Kitt
Cal.Rptr. 293]; People
95 Cal.App.3d
[157
834,
This
(1978)
Cal.Rptr. 447].)
pre
849-851
Cal.App.3d
[148
prejudice
be rebutted
that no
sumption
prejudice may
only by “proof
(1977) 20
Cal.3d
Honeycutt
resulted.
actually
(People
[Citation.]”
698,
150,
1050].)
presumption
570 P.2d
Unless
Cal.Rptr.
[141
rebutted,
is entitled to a new trial regardless
is
the accused
prejudice
verdict would have resulted ab
of the
that a
favorable
probability
more
(1979) 24
206-207
sent the error.
v. Pierce
Cal.3d
(People
Therefore,
the determinative issue is
].)13
Respondent court, the admonition the trial rebuts the presumption prejudice. is not to be of a na- The content of the inadmissible statement asserted At one told the point appellant ture to affect the jury’s impartiality. contends Respondent he was to take a lie detector test. willing which that this serves to offset his reluctance to take the test expressed of the reliability polygraph. was based on his doubts about specific While mind be ar- appellant’s various inferences as to state of may test, from his comments to his wife the lie detector gued regarding general tenor of statement is reluctance to submit to such an exami- here, Quirk standing part tape Mr. was I said that there is a of the that isn’t material going skip portion and is it. was stricken out because it must not oyer at all deciding unringing by you any way be considered in this case. It is the the bell situa- case, beginning you that I talked about at if will recall. You have tion it, already you jury though it back in room. You must treat it as heard because you had not heard it. tests, tests, just generally “Lie detector and I want to talk now about lie detector be- subject brought up tape. in the Lie detector tests are not reliable and cause the recognized being Any by you any they are not under our law as reliable. discussion Hogan drawing any by you because of the comments made between Mr. inferences concerning only prosecution a test would not be unfair to both the and wife such justice, Hogan, entirely improper, la- and to Mr. but it would be immaterial served, gentlemen, put your dies and would not be done or so that out of minds though you treat it as had never heard it. “Alright. you very your You resume deliberations.” Thank much. can People Cal.App.3d page 13As v. Martinez stated right “Convincing guilt deprive evidence of a defendant of the to a fair does not 208]: things right including] among jury trial to an unbiased ... other ....”
847
737,
P.2d
(1957)
665],
48 Cal.2d
752
nation. In
v. Carter
People
[312
which the ac-
from
testimony
this court held that
the admission of
error,
was
take a lie
test could be implied
cused’s refusal to
detector
(See
(1971) 19
even in
of an
v. Schiers
People
the absence
objection.
102,
330].) Other courts have
Cal.App.3d
Cal.Rptr.
recognized
109 [96
introduction of
posed
the “horrendous
for
capacity
prejudice”
by
(State
test.
v.
evidence of an
refusal to take a lie detector
individual’s
655,
(1962)
“In
of
of
659].)
degree
Driver
Far from rebutting the content presumption of the prejudice, inadmissible evidence reinforces the While some cases presumption. have found the to be presumption rebutted the inherent- prejudice by ly nonprejudicial considered, value of the evidence so these cases are clearly inapplicable (See instant factually case. v. Mar- People tinez, 82 supra, Cal.App.3d at p. [jury’s consideration of maps which duplicated evidence (1974) before already jury]; Reyes People Cal.3d 506-507 526 P.2d re- [jury’s 225] ceipt victim’s overruled, to which clothing, defense was objection but which were not moved into evidence by prosecutor].)
. Since the unadmitted evidence received not by inherent- jury ly nonprejudicial, the issue remains whether the trial court’s admonition is sufficient to that no prove prejudice resulted. reasons,
For several
the admonition
given
this case does not
it-
by
self rebut
the presumption
First,
the nature of the
prejudice.
considered evidence
improperly
is so prejudicial
many
courts have
held it
(Bowen
incurable
(D.Ariz.
admonition
by
1970)
alone.
v. Eyman
339, 342;
324 F.Supp.
(1963)
State v. Green
was somewhat one-sided. test, while failing a lie detector that he would take statement pellant’s in which the portion the need to disregard state specifically to the test. to take reluctance expressed in a compelled trial would be for a new the order
Finally, although here, presump- presented the circumstances case under noncapital is even inadmissible evidence with from contact jury tion of prejudice in cases that capital “It is vital case. capital in the context of stronger to tending external causes the case free from should pass upon the jury Nor can any unbiased judgment. deliberate and disturb the exercise of inter- has been of justice the administration ground suspicion (1892) 146 U.S. (Mattox v. States United fered with be tolerated.” Britt, accord, supra State v. 917, 921, 140, 50]; 13 S.Ct. 149 L.Ed. [36 vitae where jury sentence and death [reversing conviction favorem test].) detector refusal to take a lie learned of defendant’s IV. During Jury Deliberations
Denial Counsel when contends that he was denied to counsel Appellant right counsel, responded the trial without judge, jury requests notifying 26, 1979, On see various trial exhibits deliberations. during February sent all sent four different notes exhibits. jury requesting judge exhibits into the room.14 requested jury The conduct court in in the exhibits sending without noti- trial! Indeed, fying counsel was serious error. it has been the long rule that the trial court should not entertain communications from the ex- jury court, with cept open prior notification to counsel. communi- “[A]ll cations should be made in open court.... Ordinary procedure would that the trial require afford the an judge parties to be opportunity ap- such prised any communication and to have the to make opportunity timely objection action the court or which any be jury might requests 14The were as follows: (10:50 a.m.): Note 1 photos “We would like to see all in evidence.” (1:15 shirt, p.m.): Note 2 Hogan’s “We like to see pants, would shoes and and the wet towel found in the bathroom.” Hollands’ (1:35 p.m.): Note 3 transcripts “We would like to have tapes of all in evidence.” (3:20 p.m.): 4 jail Note “We would like to tape hear the first of the conversation be- Hogan tween and his wife.”
849 (1944) 177, deemed v. 24 Alcalde Cal.2d irregular.” (People [148 (1962) P.2d 627]; in Paulson v. Court quoted approval Superior accord, Cal.2d 641]; P.2d People 27 Cal.2d 418-420 753].) P.2d Weatherford Failure counsel of the notify for exhibits also violat jury’s requests ed section 1138.15Section 1138 requires requests for information to jury *31 be made in court after notice open to counsel.
A jury for request exhibits during deliberation is a critical of stage the prosecution (Cf. which the during right to counsel applies. v. People (1978) Dagnino 981, 80 Cal.App.3d 985-988 Cal.Rptr. [146 129] of sending written instructions to jury [court’s deliberation is during critical Exhibits, stage].) like are testimony, evidence. The trial court’s decision to provide evidence to the deliberations, jury during whether the through rereading of testimony exhibits, the provision requires the for counsel opportunity to assist his client. As was held in recently (1980) v. People Knighten 128, 105 Cal.App.3d 132 Cal.Rptr. “It is obviously critically important that a 96]: defendant and his attor- be ney permitted to participate decisions as to what is to testimony be reread to the the jury; essence of the error this action is its ten- dency the deprive defendant of his fundamental constitutional right to the assistance of counsel at this critical stage the proceedings. [Citations.]”
The question remains whether the denial of assistance of counsel here was prejudicial error requiring reversal. As held v. People Knighten, and supra, People v. 80 Dagnino, supra, Cal.App.3d if the denial of the right to counsel during jury deliberations have affected may sub- stantial rights defendant, of a prejudice is presumed “[o]nly most compelling to the showing will overcome contrary the presump- tion.” (People v. Knighten, 105 supra, 133.) at Cal.App.3d p. reason for the strong presumption of when the prejudice assistance of counsel has been denied is both the fundamental nature of the right its relation to a fair trial and the of a difficulty “meaningful assessment prejudice the record.” (People Coffey 67 Cal.2d deliberation, 15Section jury any 1138 states: “After the have retired for if there be disagreement they any between them as to the be testimony, or if desire to informed on case, point arising they of law in the require must the officer to conduct them into court, Upon being brought court. required given into the information must be in the of, to, presence sel, prosecuting attorney, or after notice defendant or his coun- they or after have been called.” omitted; v. Dagnino, People P.2d italics 15], 988.) When faced with a record of pro- supra, Cal.App.3d p. counsel, court assessing possible without a reviewing conducted ceeding have occurred had to- as to what compelled speculate might is prejudice such a determination re- The uncertain nature of present. counsel been the above-cited cases have quires strong presumption prejudice applied. case,
In look far to determine that the court need not present thjs the trial informed coun judge has not been rebutted. Once presumption defense tape, sel that he had 16th given jury May jailhouse the trial about the inadmissible judge portion counsel informed quickly been notified of the properly jury’s requests Had counsel tape. room, it is certain the exhibits were sent into the jury virtually before material prejudicial concerning appel that the inadmissible and highly *32 lant’s lie test would never have reached the reluctance to take a detector circumstances, to over In these jury. compelling showing necessary has not been made. The error is of come the of presumption prejudice and be deemed “harmless be federal constitutional dimension cannot California, supra, v. 386 U.S. at a reasonable doubt.” (Chapman yond 24 L.Ed.2d at p. p. 711].)16 [17
V. Remaining The Issues that; must be reversed for the reasons concluded Having judgment above, of content appellant’s stated this court does not reach certain plaim However, that he was denied due process by ions.17 appellant’s must be addressed since con destruction of material evidence that the dismissal of the case requires prejudice. tends error 981, 989-990, People Dagnino, supra, Cal.App.3d prejudicial 80 where error 16Cf. v. given jury jury was found when written instructions were to the without notification to because, notified, prejudicial held the error if counsel Appeaj counsel. The Court 17.45, might cautionary jury CALJIC a instruction which tells the requested have No. disregard any modifications or deletions contained in written instructions. The measures, undoubtedly precautions, court also determined that are other “there reasonably ‘may could have taken which have affected’ able and conscientious counsel 990.) rights.” (Id., p. their clients’ substantial guilt of ineffective assistance of counsel at the include the claim 17These contentions harrassing prejudicial trial-judge permitted photography phase, claim that the prosecutorial during argu- misconduct jurors; a claim of final in front relating penalty phase. guilt numerous clairns of error to the phase, in the ment
851
9, 527
Cal.Rptr.
(1974)
Appellant was not entitled to a dismissal or other *33 to obtain from the victim. fingernail scrapings
Appellant evidentiary also claims error as to certain rulings. criminalist, The first concerns the Vernon who questioned Kyle, ruling offered evidence on the source of various blood stains on expert opinion and shoes at the time of his arrest. pants áppellant wearing testified in He Kyle opined detail the stains. certain regarding stains were caused the air “splatters,” through following blood by flying rather than mere contact with a ob impact object. Appellant by bloody skill, the criminalist was not reason of jected qualified by 18Appellant only duty contends that this case involves preserve evidence —that is, body just that the of the victim should preserved, breathalyzer have been as the am- poule sample in Hitch and the semen preserved, in Nation should have been presumably until fingernail had the chance to take scrapings and to examine body might help for other evidence which exonerate him. This contention must be rejected. “[Pjrosecutorial agencies right custody have no of the remains of a de- ceased; duty therefore no preservation (People (1980) of arises.” v. McNeill 112 330, Code, Cal.App.3d Cal.Rptr. 313]; see also Health & Saf. 7100 and [169 §§ 1058, (1970) People 7102 and Cal.App.3d 236].) Vick 1065-1066 Cal.Rptr. on the expert opinion to render an or education training
experience, of bloodstains. origin subject proponent expert testimony section 720 requires
Evidence Code the witness if there is an objection.19 qualifications to establish of a witness will be as to the qualifications While a trial court’s decision (Brown v. Colm (1974) 11 Cal.3d absent an abuse of discretion upheld 128, must be found 639, 688]), 522 P.2d error Cal.Rptr. 646-647 [114 lacks clearly as an qualification if “the evidence shows that a witness the witness to be as an qualified expert and the has held expert judge 29.3, (Jefferson, Benchbook p. witness.” Call Evidence § Also, an must be related expert italics in original.) qualifications which he is giving expert testimony. to the particular subject upon (Miller v. Los matter are insufficient. Qualifications subject on related Flood Control Dist. (1973) 8 Cal.3d Angeles County (1978 Jefferson, 29.3, supra 193]; supp.) 505 P.2d § 331-332.) pp. as an
Kyle’s qualifications expert determine whether blood had been or transferred contact were He spattered nonexistent. had never performed to make such any laboratory analyses determinations either in the or in the case. He had past present received no admittedly formal education or to make such determinations. His training background on exhibit, consisted of some an subject viewing years prior which had discarded, since been some prepared by criminalist which unknown demonstrated oí human patterns dropped blood from various heights and angles. had also read some Kyle years prior book about flight Also, he patterns blood.20 had observed bloodstains at crime many scenes, and had determined in his own mind whether were they spatters but had never verified his “wipes,” conclusions in When any way. pressed about his qualifications, testified as follows: *34 provides: 19Evidence Code section skill, “(a) expert knowledge, person qualified testify special A is as an if he has training, experience, qualify expert subject or education sufficient to him as an on the Against objection testimony party, special to which his relates. of a such knowl- skill, edge, experience, training, may or education must be shown before the witness I testify expert. an as skill, “(b) training, special knowledge, experience, may A witness’s or education be evidence, by any including testimony.” his own shown otherwise admissible (1971). Kyle Blood 20McDonnell, of Human indicated that Stain Patterns Flight and making had not referred to it in his deter- work and with the familiar very not he was case. instant in the mination seeing sort of it’s training, just specific recall any “Kyle: I don’t ob- fairly it seemed a liquid, just of the characteristics something given of know, physics on, principles just general you vious based chemistry. obvious to anyone? It would seem
“Q: fairly I believe it would be.” “A: boiled down to observed blood-
Kyle’s qualifications having many stains without inquiry, stains. But mere observation of preexisting criminalist with expertise or does not invest analysis experiment, determine whether the stains were or deposited by “spatters” “wipes.” in v. Los Flood Angeles County situation is akin to that Miller Dist., Miller, In a mechanical engineer Control Cal.3d 689. supra, with and in char- training hydraulics, hydrology evaluating flooding areas, acteristics in called as an witness to expert testify hillside was whether reasonable construction would have dictated erection practices of a wall a hillside residence. Despite as retaining part design the witness’ observation of the construction of several hundred residen- areas, tial homes in construction specific hillside he was unfamiliar utilized in flood hazard areas and did not or recom- practices design mend the trial court as qualified by such structures. He was found not an and this was expert on the of construction subject practices ruling this court. upheld by about qualified testify in this case
Similarly, Kyle undoubtedly the stains. were blood and about the blood typing whether the stains However, he did not demonstrate under Evidence Code section skill, as testify or education special experience, training knowledge, whether blood was an expert particular subject determining or surface-to-surface contact.21 deposited by drops by flying evidence of The next concerns challenged evidentiary ruling debts, appel which was out on cross-examination of appellant’s brought lant over his contends the evidence was more objection. Appellant pre (Evid. Code, 352.) judicial than testified that probative. Appellant § $1,800 $10,000 owed and over to a to a finance Oklahoma company stan- performed experiments criminalist here had no and had no reference 21The dards, study compare self-generated reputable expert, either or created some to' *35 with the evidence in this case. 854 $79 $260
bank in Payments Oklahoma. month were due per these debts. trial court admitted the evidence of debts appellant’s on the that the theory evidence was as to motive probative for robbery and would not prejudice him.
The rule governing evidence of as motive for poverty crime was stat- ed (1901) long 430, v. 132 ago People Kelly Cal. 431-432 [64 P. evidence of the “Generally, wealth or of a defendant is poverty 563]: admissible; not but the sudden possession money, immediately after the commission of a one who larceny, by before that had been impecu- nious, is admissible as a clearly circumstance in the case. [Citation.]” states a Wigmore general policy exclusion of this type evidence as motive for crime because “the practical result of would be [admission] to put poor under so person much unfair suspicion and at such a rela- tive that for reasons of disadvantage fairness this has argument seldom been countenanced as crimes, evidence of the graver of vio- particularly (2 (3d lence.” 1940) Evidence Wigmore, 341; ed. p. v. People § (1953) 122 Gorgol Cal.App.2d 303 69].) P.2d [265 case, In the instant details of appellant’s immediate cash situation were fully developed both prosecution and defense in the controversy $20 over the source of the two bills in appellant’s after possession his arrest. The fact that and his were family relatives living and that had only single received since paycheck coming Bakersfield was before already the jury.
The evidence of debts in appellant’s Oklahoma added little of proba tive value to the evidence of his financial condition. The prejudicial value of the evidence was to show appellant as a mishandler of money and to create the possible inference that he had left Oklahoma to es cape debts. Because of the general rule against admission of evi dence of as a motive poverty for serious offenses and because of the limited probative value of the Oklahoma debts in view of the other evi dence of condition, financial appellant’s the evidence should have been excluded pursuant to the Evidence Code section 352 objection.22 People 22The People cite dictum in v. Cal.App.3d Morales 88 264 [151 “[p]roof money of defendant’s need for has been held relevant 610] theft, prosecuting admissible in robbery (People Gorgol, for Cal.App.2d v. 69]; People Orloff, P.2d Cal.App.2d 288]), P.2d ...” The Mo rales unsupported by dictum is overbroad and Gorgol, the cases cited. In evidence that an difficulty accused was in financial recently stolen his roommate’s wallet only was admitted to refute claim that robbery he would not have committed the
855 VI. corpus of habeas writ The for petition reversed. is judgment moot. is denied as 21582
numbered Crim.
Broussard, J., concurred. I not be do KAUS, J. Although I concur in the result. — Hogan’s psychiatric problems of for police help lieve that offers repeated nevertheless the promise leniency, to an of implied amounted of part difficulties form an essential references to his mental possible de believe the admitted police which leads me to that background was “of a which statements Hogan’s incriminatory ception preceded (In an untrue statement.” re Walker reasonably procure type likely 177, 764, 518 P.2d 1129].) 10 Cal.3d 777-778 [112 outlining defining points Before several my reasoning, explaining should be made. framework the relevant inquiry of the trial determined by First: once the “historical” facts are reliably is the kind which invali court, the whether of question deception (1963) 373 Washington is one of law. v. (Haynes dates confession 521-522, 503, 513, Culombe 1336]; 515-516 L.Ed.2d 83 S.Ct. U.S. [10 1057, 1037, 81 (1961) 367 602 L.Ed.2d v. Connecticut U.S. (1978) 21 609 Cal. v. Jimenez Cal.3d 1860]; S.Ct. People Thus, 580 I assume favor of 672].) willing P.2d am Rptr. it evidence that Officer trial court’s that found on substantial ruling recalled, did as Officer Orman the girls Clendenon not say, homicide, that he said that the merely girls seen commit the but Hogan him version Jeremy. had seen It does not matter —either hitting really was admittedly false. is is of kind deception
Second: determine whether police course, must, confession, a false one trigger reasonably likely is, fact, on a who not evaluate the effect deception’s probable person is a impossibility. Otherwise a false confession rational guilty. 303.) money. Gorgol, Cal.App.2d p. (People supra, because he did not need v. 122 at Orloff, possessed In error in the that the defendants was found admission evidence cash, arrested, jewelry “impecuniousness” when new clothes and because no evidence prior (People Orloff, supra, Cal.App.2d v. at robbery to the had been shown. 620-621.) general (Gorgol policy of exclusion of evidence pp. Both cited Orloff Gorgol, 303; p. People at v. Or- poverty (People supra, Cal.App.2d as motive. 620.) loff, supra, p. Cal.App.2d
Third: the nature of the very test assumes that there are certain de- ceptive practices which under certain circumstances will cause certain persons to confess thus it will falsely: not do to simply one say may —as be tempted there can be no lie which would cause one to make a —that false confession to a as crime as murder. grave
Fourth: the lie will a false question confession —can trigger —what not be answered in the abstract. A lie which may provoke but a nothing smile contemptuous part of a seasoned criminal have may a dev astating individual, effect on an emotionally with no overwrought reservoir of psychological who has never been in serious strengths, trou Thus, factors, ble with the law.1 other among many we must consider crime, it, nature of the suspect’s admitted his person relation to in relevant ality general, character traits in particular, the nature and course of the interrogation apart short, from the deception the to —in tality of circumstances.
Fifth: in whether the determining was deception of the kind which was confession, reasonably to a false likely trigger we must of necessity a perform task for which we are not well particularly equipped de- —the termination how another person, whom we know only through pages of an record, appellate to act under certain likely stressful circum- stances which none of us has ever experienced. this Inevitably exposes one to the charge being “parlor shrink.” Yet this is precisely kind of determination which courts are bound to constitutionally make and do make in case after case a claim involving that a confession was As the involuntary. United States Supreme Court pointed out Haynes v. Washington, supra, U.S. at page L.Ed.2d at [10 page escape demands of judging or of 521]: cannot making “[W]e the difficult appraisals inherent whether determining constitutional rights have been violated.”
Sixth: since in this particular
it
area
does matter whether the police
conduct
is likely
(cf.
a false
beget
confession
Rogers
Richmond
(1961)
534,
365 U.S.
760,
543-545
L.Ed.2d
767-769,
These the preliminaries out of the I am bound to conclude that way, to the reliability admitted was of such a nature as undermine deception of the not Hogan’s People confession or—more have accurately —that established its a reasonable doubt.2 validity beyond his with of his conversations and tapes interrogations of Hogan’s been a that he has conscious person, reveal as a weak wife him Carolyn the under much husband, very and provider as a father failure coolness, clarity strength who incredible displays thumb of Carolyn, In his conversations around her. while is collapsing of her world purpose murder his arrested for being feel that to Hogan appears with Carolyn, At the as a human being. of his ineffectiveness is one more instance just which con- any suggests is in his nothing background time there same in the Holland which he encountered violence type tact with the of of the sight must innocent —as we assume —the If he was residence. must have Adam beside her with gravely injured Theresa the dead senseless, the utterly yet scene is a his mind. The effect on cataclysmic of kind it some suggests he and observes fact that is alone very connection. with followed his encounter by shock is unprecedented
This totally arrest, incarceration, a of Holland, series his flight, the attempted these ses- during shows The record clearly interrogations. suspicion that he in mind planted the police firmly sions the fashion, for was, pitiful responsible in some Perhaps he “crazy.” only by murky provoked deception question law whether a confession 2The is is as “involun- procure an untrue statement classified likely which is of a nature is, course, generally may be deception one of tary.” It of well established that involuntary. (Spano v. New York 360 U.S. which renders a confession factors 315, event, 1265, 1271, holding 1202].) People any In our in 323 L.Ed.2d 79 S.Ct. Jimenez, P.2d that the supra, 606-608 Cal.3d 672] by beyond a admissibility proof of a confession that convinces People prove must strict part based on the consideration this reasonable doubt was in considerable (Id., 607.) p. be possibility that a false confession would admitted. rule decreased the scene he had scene in trigger guilt feelings witnessed —a calculated the most innocent These of some of re spectator.3 vague kind feelings that, indeed, then sponsibility are confirmed the information there were witnesses of his done he has having something which no recollec done. crazy? tion Was would he have done having really Why Theresa, Adam, kill such He had no reason to hurt thing? hit it was not until the Jeremy. Significantly, police supplied him $40 motive of sorts —the robbery Hogan literally exploded into —that he had admitting that hit Theresa and “little baby.” I have of the carefully listened of this “con tape interrogation which, truth, fession” is more like a series of emotional outbursts than a coherent description past recollection of a event. The most it, however, remarkable is that it fails aspect reference any make whatever to an event would which have been mind uppermost *39 a the guilty person: murder of It is as if the victims had Jeremy. only Adam, been Theresa and the “little baby.” Nor is there reference any in of Jeremy less emotional which any Hogan’s statements followed the third I find interrogation.4 impossible it to believe that person who wants to unburden his soul crime by confessing to a or crimes he has actually say nothing committed would about one of two homicides.
In sum: not were only the circumstances such that the police decep confession, was provoke tion a false likely but in addition the confes or, rather, sion its most shortcomings persuasively that itself — —reveal was, indeed, it not a “product reliable of a rational intellect and a free (Blackburn v. Alabama 199, will.” (1960) 361 U.S. L.Ed.2d 3In his (1979), book The Broken Jay Dr. psy- Connection Robert Lifton .describes chological phenomenon guilt”: which he calls “death “I came call this kind of horror, memory an image involving dying ultimate one or way dead in a of strongest evokes the feelings survivor’s identification pity and of and self-condemnation. imagery survivor, Such people tended to involve either very who had been close to the (such or else those as people) children sometimes women or older who are looked upon helpless. image as most and vulnerable of symbolize ultimate horror can event, entire death-saturated its horror and pity as well as the survivor’s of sense debt responsibility and to the dead. That debt to the dead contains survivor’s unanswer- he, she, question, ‘Why able inner did they I survive while and is died?’ the essence of 142-143.) guilt.” death (Pp. fact, 4In only Jeremy interrogations mention any comes in Officer disputed Clendenon’s girls Hogan statement that the Jeremy. had seen hit One addi- tional reason why, majority opinion as the suggests, probable it is far more that Officer correct, Orman’s version of any Clendenon’s statement is is absence the total refer- Jeremy ence to any questions answers followed. 487, In re Cameron 68 Cal.2d 80 S.Ct. 274]; It have P.2d should 633].) been suppressed.5
Newman, J., concurred. RICHARDSON, J . dissent. Defendant was convicted of I respectfully stabbing to death Theresa Holland and her bludgeoning four-year- Adam, old son her intent Jeremy, to murder attacking baby, Nevertheless, him. Defendant admitted the attacks. merely repeatedly because the officers at one offered to defen- interrogating point “help” have, dant with might “mental and because their inter- any problem” rogation later uncontrollably caused defendant to sob and lose his com- as he admitted hold that posure guilt, colleagues defendant’s my statements were inadmissible as the of le- product improper promises niency and coercion.” “psychological well be frustrated ma may his admitted
Despite guilt, justice is evidence defendant remaining against because the jority’s holding de majority’s circumstantial. It should be understood that largely involuntary expressly termination that defendant’s statements were *40 evidence an extensive during the trial court which heard the rejected by of defendant’s statements. the voluntariness pretrial hearing regarding (See 402, Code, (b).) Because the trial court’s determina Evid. subd. § evidence, princi based under well established tion was on conflicting evidence, conflicting we “must resolution of the trial court’s ples, accept is of unworthy unless the evidence ... so as to be improbable entirely 595, Jimenez (1978) 21 Cal.3d 607 (People belief. v. [147 [Citations.]” 172, our policy. This has been consistent 672].) 580 P.2d Cal.Rptr. (1969) 369, 882, v. Aikens Cal.Rptr. 378 450 (People 70 Cal.2d [74 899, v. Massie (1967) Cal.Rptr. 914 66 Cal.2d P.2d 258]; People [59 690, (1943) v. Huston 733, 21 Cal.2d 693 869]; People 428 P.2d [134 P.2d 758].) reversal, it is un- requires defendant’s confession of admission the erroneous 5Because to respect the court’s errors the trial whether to determine necessary my in view to re- sufficiently prejudicial recording in themselves were tape portion of the deleted opinion. court’s IV of the retrial; join parts III and I do not for that reason
quire other re- a dismissal or V, to is not entitled defendant agree I part respect With expert testify as an Kyle permitting erred in trial court and that the Hitch lief under debts. defendant’s admitting evidence of in spattering” and on “blood 1. Promises Leniency of
Promises
lenient
of
treatment by police officers
other
or
in
persons
will taint
authority
admissions or confessions
if the
only
promises were
“a
cause” of
motivating
the defendant’s statements.
v.
(People
Johnson
(1969)
889,
In the present the evidence the motivation for defen- regarding dant’s hand, inculpatory was one conflicting. statements On the both officers testimony and the inferences interrogating reasonably drawn from the tape-recorded interviews with defendant indicate that he was not motivated any way by any promises leniency. Detective interviews, Orman testified before defendant’s first and third officer defendant advised that if he had a “mental problem,” officer would “help” for try arranging defendant treatment him. Accord- Orman, ing discussed, no offers of were specific help treatment in, showed to, defendant neither interest nor any response made Orman’s offer.
Moreover, the the view that defendant’s transcripts support con- fully fession of not a Orman’s offer guilt product prior help. recorded interview is which that confession was made illu- during very It reveals that minating. consistently defendant denied calmly whatever in until the officer any killings interrogating complicity first from Holland and then money accused defendant of Mrs. stealing defendant to what he did after topics and asked relate abruptly changed *41 he bedroom Theresa and the This question entered the “and saw baby.” a for defendant lost his apparently deep response, emotional triggered admitted that “I began to and thereafter composure, cry, immediately know, know, hit know .... I hit the little I don’t I don’t I don’t baby. her.” further with included interspersed sobbing, Defendant’s responses, hammer, the that he he hit Mrs. Holland statement “thought” her, I and that “I I hit and hit her and I hit her.” hit her Indeed, that the officer’s of- acknowledge prior seems to majority admissions: fer of was not the cause of defendant’s help motivating him innocence until the officers asked to maintain continued “Appellant This baby. question Theresa and the in and going seeing to remember conducted the be day in first interrogation had caused appellant, fore, sobbing. Again, question composure begin to lose his seconds of sobbing After 30 appellant. the same triggered response from had hit said questions, appellant and several more crying (Ante, added.) italics p. the little baby.” contrast,
In defendant told that his admissions were motivat jury ed, least, treatment, in at part the officer’s offer of medical which defendant said he assumed meant that he would time in a spend some trial, mental The court institution. Yet the unimpressed. majority (ante, 839-840) value, pp. this accepts face with seemingly testimony out real it was fabrication considering possibility pure designed to fit the legal principles above described. con event, to resolve the
In it was the trial court’s any responsibility case, In the present on the of motivation. flicting question evidence the recorded interviews and live tes a careful examination of following officers, the trial court defendant and timony by interrogating that, not have lied re deliberately concluded defendant although may motivation, the reason he “broke down” confessed was garding time,” that were asked at that rather than questions being “the of type The trial court denied on this offer of medical assistance. any previous statements, to exclude his and ac pretrial basis defendant’s motion very we, review, court’s in our “must the trial appellate accept cordingly ” Jimenez, evidence . ... v. (People supra, resolution conflicting 595, 607.) Cal.3d we decide better than are position trial court was clearly defendant’s confession.
whether
or treatment motivated
help
an offer
trial
Indeed,
uphold
is
cases from other states
That
its function.
several
(State
(1962) 150 Conn.
this issue.
v. Traub
rulings
precisely
court
linked
treatment not
psychiatric
A.2d
offer
[prior
236]
(Alaska 1969) 454 P.2d
346-347
confession]; Thessen
State
Miranda
of waiver of
offer of
not
cause
[prior
“help”
motivating
S.E.2d
court was entitled to find that defendant’s statements were inculpatory induced legitimate by perfectly police questioning preced- immediately statements, ing those rather than earlier offers The help. majority’s contrary conclusion ignores evidence on this conflicting issue and the trial court’s erroneously usurps proper role in resolving such conflicts.
2. Psychological Coercion alternative majority’s is holding officers’ interrogation techniques produced a coercion” “psychological which rendered defen dant’s (Ante, statements involuntary. p. 841.) The majority purportedly relies upon “vivid evidence of the deterioration of appellant’s will to re sist under the pressure of manufactured evidence of his and guilt suggestions that he committed (Id., the crimes while ill.” mentally 842.) p. record, Having reviewed the I am persuaded the majority seriously it misinterprets and is totally No coercion of wrong. kind any occurred here. Defendant’s statements were a product of his free and voluntary choice.
First (and there was no “manufactured At evidence.” most the record inis conflict on the one of the point), may officers have told defendant that the Holland saw him one daughters commit of the homicides. Such deception is commonplace police during interrogations does not render involuntary inadmissible admissions any thereby produced, as as long the deception was not of a type reasonably likely an procure (In 764, untrue (1974) statement. re Cal. 3d Walker 10 777-778 [112 177, Cal.Rptr. (1977) 518 P.2d v. Felix 1129]; People Cal.App.3d cited.) 885-886 cases The Felix case sum [139 366] marizes several of our cases own substantial involving police deceptions here, ly (1) identical to that present suspect including falsely telling (1925) were on cash v. fingerprints Connelly register (People Cal. 374]); (2) P. falsely telling there were suspect (1924) eyewitnesses his crime Castello 194 Cal. (People P. 855]); the wounded not telling suspect that might Walker, (In live and therefore 3d should talk to re 10 Cal. supra, 879). cases, In suspects’ all these we held that the statements ad were missible deception likely because the was not to induce an innocent in the as person implicate Similarly, crime. Castello himself case, defendant herein that there were witnesses to his offense telling was not to induce a false confession. likely *43 otherwise, evidence, a Likewise, suggests “vivid” or which I find no (Ante, 841.) confessing. p. will resist” appellant’s “deterioration of All record such the finding. the trial court made no Certainly, offenses, defendant, the lost upon admitting in this is that shows regard the interview. cried the remainder of during control of his emotions and crimes, two murders bludgeon which included Given nature of his means a sledge on committed helpless baby, and a brutal attack a he had knife, both, appre- the realization that been or and hammer or then in hended, understandable. entirely Being such a seems reaction do inevita- most not they certainly could be but expected, tears custody, conclusion that defendant was “brainwashed” bly compel majority’s (Ante, 843.) Indeed, conclusion the in- at the p. “coercion.” by police had confirmed that the officers expressly terview in defendant question, that he had agreed begun to harm threaten him. He nothing done or Moreover, al- recalling he was what he had done. cry only because last during segment defendant cried though frequently interview, of the officers’ ques- he nevertheless to answer most managed sir, (“No sir.” “I I’m sir.” “Yes don’t know coherently politely tions the interview. remainder of throughout sorry.”) Walker, 764, 777, we as upheld, voluntary, In Cal. 3d In re supra, who been struck twice admissions exacted from suspect certain shoulder, in and who butt and gun the head with an officer’s shot that neither an of when We observed “badly” questioned. was bleeding nor the suspect in a resisting ficer’s use of reasonable force arresting his subsequent rendered pain necessarily accompanying injuries of the record herein con statements review involuntary. Similarly, my tears, was neither that defendant Hogan, despite vinces me voluntarily competently but instead “brainwashed” nor “coerced” for the two murders. admitted his complete responsibility Errors 3. Other but, for reversal of the judgment, finds two other bases
The majority a brief discus- view, are so minor that only the asserted “errors” my first The majority conclusion. majority’s sion is needed to refute jury allowing the court’s inadvertence finds reversible error in he his wife why explained in which defendant recording hear a tape that, observed simply test. Defendant to take a lie detector had declined test, believed he now to take such a had originally agreed although There up messed .... what if the machine is “my good, word ” afforded per- explanation This ifs in one of them .... is too many *44 rational, fectly understandable reason defendant’s for refusal to take test. No reasonable could have drawn adverse inferences from juror any defendant’s This was explanation. not reversible error. likewise would reverse trial majority because the judgment
court allowed to view certain trial exhibits their delib- jurors during erations without due notifying first counsel. With I believe respect, it is simply inconceivable that such affected de- adversely “error” any (see fendant’s Cal. rights” Knighten “substantial People App.3d for the exhibit 96]), only subject possible objection tape recording defen- foregoing disclosing test, dant’s refusal to submit to a lie detector a matter harmless wholly under the circumstances here.
I would affirm the judgment.
Mosk, J., concurred. :