People v. Cully

236 Cal. App. 2d 769, 46 Cal. Rptr. 644, 1965 Cal. App. LEXIS 873

• Court: California Court of Appeal
• Decided: August 24, 1965
• Docket: Crim. 9192
• Status: Published

Opinions

FLEMING, J.

On rehearing, pursuant to order of the Supreme Court for further consideration in the light of Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977], and Massiah v. United States, 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246].

The police, in searching for an unidentified burglary suspect whom they believed to have been wounded the previous night while fleeing the scene of the crime, the Beau Jest Bar, came upon Cully the next afternoon in a private house near the area of the shooting in what appeared to be a wounded condition. Officer Najera, who had not witnessed the attempted burglary and shooting at the Beau Jest Bar and who was investigating the case on information furnished by other members of the police department, arrested and handcuffed Cully and called for an ambulance. Prior to the arrival of the ambulance the conversation between the parties consisted of the officer’s question, “Are you hurt?”, and the suspect’s answer, ‘ ‘ I have a sore throat. ’ ’

After the suspect had been placed in the ambulance about 1 p.m. Officer Najera rode with him to the hospital, and during the ride Cully made a complete confession of the attempted burglary. He said he was not a good burglar and had got caught, that he was a better robber than burglar. He had been in back of the bar of the cafe and been surprised by the police, one of whom had shot at him. He had thrown his screwdriver at another, and started to run, and been hit while running across the street or jumping the fence. This was the first time he had burglarized any place, and he had gotten the idea from his roommates, Bruce, Steve, and Mike, who had burglarized numerous bars in Highland Park.

As a consequence of this information, Cully’s roommates were investigated and arrested for other burglaries.

Cully was tried by a court without a jury and convicted of attempted burglary with a record of two prior robbery felonies. In addition to his confession, the evidence against him included his direct identification by Officer Holubiczko as the burglar who had been surprised at the Beau Jest Bar and shot while making good his escape.

The principal question is whether the use as evidence of the confession by Cully in the ambulance on his way to the hospital was a violation of his right to the assistance of counsel and to remain silent guaranteed by the Sixth and Fifth Amendments to the Constitution. (Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977]; Massiah v. United States, 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246]; People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361].) No claim of coercion is involved. The issue turns on whether at the time of the confession the accusatory stage had been reached so that the right to benefit of counsel attached. A subsidiary question is whether the use in evidence of a second confession duplicating the first, which Cully gave the police at 7:30 that evening in the hospital, requires a reversal of the judgment. Other contentions of Cully, lack of probable cause for his arrest, use of evidence obtained by illegal search and seizure, insufficiency of the evidence to support a conviction for attempted burglary, are without merit and have been fully covered in the prior unpublished opinion in this case by Mr. Justice Fox, whose statements on these points we adopt.

Under the guarantee of the right to counsel articulated in Escobedo and Dorado, whenever a criminal inquiry has ceased to be investigatory and become accusatory, the suspect has become for all practical purposes one accused of

crime, he must be advised of his right to counsel and his right to remain silent. (Sixth and Fifth Amendments to the United States Constitution.) Absent proof of such advice, statements obtained from him in the accusatory stage may not be received in evidence over his objection. (People v. Stewart, 62 Cal.2d 571, 581 [43 Cal.Rptr. 201, 400 P.2d 97].) The accusatory stage is reached when two conditions have been met: (1) the suspect has been placed under arrest, and (2) the police have undertaken a process of interrogations whose objective purpose is to elicit a confession of guilt. (People v. Stewart, p. 577.) The question at bench is whether the accusatory stage had been reached at the time Cully was placed in the ambulance; for if it had, the admission in evidence of a confession obtained as a result of questioning would have been reversible error; but if it had not, his confession could have been received in evidence against him, for as Escobedo has said, only when an investigation has shifted to the accosatory stage, and the suspect has become an accused, and the questioning has become designed to elicit a confession, does the adversary system begin to operate. (378 U.S. 478,492.)

In our view the inquiry at the time of the conversation in the ambulance between Cully and Officer Najera was still investigatory and had not reached the accusatory or critical stage, and therefore the confession was properly obtained. Officer Najera in making his arrest was proceeding on inference derived from circumstantial evidence, which, although strong enough to justify an arrest, by no means foreclosed the possibility that Cully was not the man involved in the Beau Jest burglary. It was quite possible that the suspect’s difficulties had arisen from unrelated activities. Cully might have been up to other mischief which he did not wish known to the police, or he might have been engaged in some private venture which a point of honor forbade him to disclose. If such had been the case, his initial reluctance to disclose other activities, even of a discreditable nature, might have heen quickly dispelled by his need to solve his current difficulty. Officer Najera had never seen the suspect before, he had not been at the scene o£ the crime, and at that point had heard neither admissions nor denials from the suspect in relation to the Beau Jest Bar caper. Conversation between the two at that stage served two purposes: it provided the suspect with an opportunity to clear himself of matters with which he was not involved, and it gave the police an opportunity to hear the suspect’s explanation of his predicament.

This case falls squarely within the Konigsberg rule adopted in California in People v. Stewart, 62 Cal.2d 571 [43 Cal.Rptr. 201, 400 P.2d 97]. The Supreme Court in Stewart rejected the argument that the accusatory stage necessarily begins at the time of arrest, stating that although in most cases the process of interrogations following an arrest is accusatory, it is not necessarily so. The court cited with approval United States v. Konigsberg, 336 F.2d 844, cert. den., 379 U.S. 933, and commented as follows (pp. 578-579) : “In the Konigsberg case, supra, Federal Bureau of Investigation agents apprehended the defendants in a garage containing stolen goods, arrested them and took them to the bureau’s office. At that office, prior to an arraignment, the agents asked Konigsberg, 1 “why he was in this garage and just what had taken place . . . and ... if he wished to cleanse himself or explain . . . what his reasons for being there were, why the other individuals were there.” ’ (Id. at p. 852.) Konigsberg then made some incriminating statements. Among other reasons for not applying Escobedo, the court said that the purpose of the investigation, even though it took place after the arrest, was not to elicit a confession. The court stated, ‘The uncontradicted purpose of the discussion was to give Konigsberg a chance to explain his presence in the garage if he could; to hear Konigsberg’s side of the story. ... If Konigsberg or any of the other people caught in the garage could account for their presence this was their opportunity.' ”

In adopting the Konigsberg rule that a suspect may be asked for his explanation a reasonable time after his arrest, we believe the Supreme Court sought to maintain free communication between suspect and officer for reasons beneficial to both suspect and society—beneficial to the suspect by encouraging early communication which could lead to his speedy release, and beneficial to society by continuing to use to advantage the tendency of guilty persons to confess all on first being caught. These considerations have been well described by Professor Wigmore: “(1) In the first place, an innocent person is always helped by an early opportunity to tell his whole story ; hundreds of suspected persons every day are set free because their story thus told bears the marks of truth. Moreover, and more important, every guilty person is almost always ready and desirous to confess, as soon as he is detected and arrested. . . . The nervous pressure of guilt is enormous; the load of the deed done is heavy; the fear of detection fills the consciousness; and when detection comes, the pressure is relieved; and the deep sense of relief makes confession a satisfaction. At that moment, he will tell all, and tell it truly. To forbid soliciting him, to seek to prevent this relief, is to fly in the face of human nature. It is natural, and should be lawful, to take his confession at that moment—the best one. ...” (Wigmore on Evidence (3d ed.) § 851, p. 319, quoted by Traynor, J., concurring in People v. Garner, 57 Cal.2d 135, 163 [18 Cal.Rptr. 40, 367 P.2d 680].)

The problem of the courts is to keep in balance the social interest in the general security and the social interest in individual free will, to preserve the protection to society derived from the tendency of guilty persons to confess on first being caught and at the same time protect the individual from abusive questioning and the threat of compulsion. The usefulness of properly-secured confessions has long been recognized and approved. (People v. Garner, 57 Cal.2d 135, 164 [18 Cal.Rptr. 40, 367 P.2d 680]; Culombe v. Connecticut, 367 U.S. 568, 571 [81 S.Ct. 1860, 6 L.Ed.2d 1037].) No court has suggested that the use of confessions be outlawed; rather the recent rules are designed to assure that confessions received in evidence are reliable and voluntary and have been secured in conformity with due process.

The main thrust of recent restrictions on the questioning of individuals under arrest clearly appears from the language of In re Lopez, 62 Cal.2d 368 [42 Cal.Rptr. 188, 398 P.2d 380], which tells us that the Escobedo and Dorado rules are aimed at the use of oppressive police practices to dissolve and overbear the vdll of the individual. Again and again the Lopez opinion articulates the objective of the restrictions:

“to eliminate conditions which invited coerced confessions” (p. 372);

“to prevent police tactics which, in the past, have spawned involuntary confessions” (p. 372-373);

1 ‘prevention of coercive practices” (p. 373);

‘‘compulsory self-disclosure as a source of proof” (p. 373) ; “a readiness to resort to bullying and to physical force and torture” (p. 373);

“confessions have often been extorted” (p. 373);

“the prevention of practices that might lead to coerced confessions” (p. 373);

“the possibility of extorted confessions” (p. 373); “effective antidote to abusive police tactics and extorted confessions” (p. 373);

“the third degree” (p. 374);

“coerced confession” (p. 374);

“to sterilize the police antechamber from the use of coercive tactics” (p. 374);

“inadequacy of present methods of dealing with involuntary confessions” (p. 374);

“coercion that might occur during police interrogation” (pp. 374-375) ;

“the correction of the conditions which invited the coerced confessions and the attendant evils” (p. 375);

“the evil fruit of the coerced confession” (p. 375);

“secret interrogation was the source of coercion” (p. 377) ; “to discourage oppressive practices” (p. 377);

“by drying up the sources of coercion” (p. 382).

Clearly, coercion is the enemy with which we wrestle, not the use of free confessions. Where the possibility of coercion is minimal, questioning of a suspect under investigation serves the public interest. A suspect, even one under arrest, may be questioned at a time when the inquiry is still investigatory and has not reached the accusatory stage. (People v. Stewart, 62 Cal.2d 571, 578-579 [43 Cal.Rptr. 201, 400 P.2d 97].) Only after an investigation has reached the accusatory stage does the possibility of pressure on the accused become a significant factor so as to require the protection of counsel and advice as to his rights.

To determine whether questioning of a suspect under arrest has been properly investigatory or improperly accusatory, the Supreme Court in Stewart suggested the use of a five-point test to evaluate the circumstances of the questioning. Factors specified are: (1) time of interrogation; (2) place of interrogation; (3) length of interrogation; (4) nature of the questions; (5) conduct of the police. These and other relevant circumstances make up “the total situation which envelops the questioning”, from whose examination the court will determine whether or not the inquiry had reached the accusatory phase during the course of which the police carried out a process of interrogations which lent itself to eliciting incriminating statements. (Escobedo v. Illinois, 378 U.S. 478, 491 [74 S.Ct. 1758, 12 L.Ed.2d 977].) In the present case the evidence shows these factors answerable somewhat as follows:

Time of interrogation—about 1 p.m. immediately following arrest;

Place of interrogation—in the ambulance on the way to the hospital;

Length of interrogation—while riding to the county hospital;

Nature of questions—whether the suspect was the man involved in the Beau Jest attempted burglary; the conversation was in large part a narrative statement by the suspect;

Conduct of police—there is no evidence of threats, promises, over-reaching, accusation, or cross-examination.

Clearly, here, the suspect was being offered an opportunity to explain if he were a victim of mistaken identity. What resulted was not only the suspect’s confession but the furnishing of valuable information to the police about other crimes which led to other arrests for other burglaries.

Appellant argues that any conversation with a suspect after an arrest on probable cause is improper. Yet this is not what our Supreme Court said in Stewart. It specifically rejected such a mechanical rule and formulated the pragmatic test previously referred to. (Pp. 578-579.) The inquiries in the ambulance appear to us to have been part of a normal investigatory process which a conscientious officer would be duty-bound to make in order to assure himself he had arrested the right man and not been led astray by suspicious circumstances. In the course of performing this duty Officer Najera not only solved the Beau Jest Bar burglary but secured information which led directly to the solution of other burglaries and the arrest of other burglary suspects. Were we to hold this questioning to have been in violation of the Constitution, logically, we might be required at some future time to suppress all evidence of the crimes of Bruce, Steve, and Mike, which had been uncovered by means of Cully’s disclosures in the ambulance, as tainted fruit from a poisoned tree. (People v. Reeves, 61 Cal.2d 268 [38 Cal.Rptr. 1, 391 P.2d 393]; People v. Ditson, 57 Cal.2d 415, 439-440 [20 Cal., 369 P.2d 714]; Wong Sun v. United States, 371 U.S. 471, 487-488 [83 S.Ct. 407, 9 L.Ed.2d 441].)

In our view the confession of the suspect in the ambulance on the way to the hospital was properly obtained, properly introduced in evidence, and properly used to make other arrests of other suspects for other crimes. (People v. Ford, 234 Cal.App.2d 480, 486-494 [44 Cal.Rptr. 556]; People v. Beverly, 233 Cal.App.2d 702, 715-716 [43 Cal.Rptr. 743]; People v. Fork, 233 Cal.App.2d 725, 735-737 [43 Cal.Rptr. 804].)

The remaining point in this ease involves the admission in evidence of a second confession given by Cully to Officer Combs in the hospital about 7:30 p.m. on the evening of his arrest. Officer Combs asked what had happened that morning. Cully told him he had been at the Beau Jest Bar trying to get in the back way when the cops drove by with their lights off. He took off and a cop started after him, but he didn’t stop because he didn’t want to go back to the joint. When a cop almost got him he threw his screwdriver and took off again. Bruce and Steve and Mike had been hitting all the bars in Highland Park, and Bruce was the one who had gone through the roof at the 58 Club on Figueroa.

The apparent purpose of this further interview was to secure a written statement—which Cully declined to give—and obtain more information about the activities of Cully’s roommates. At that point the police already had the benefit of Cully’s first confession, the accusatory stage had been reached, and therefore Cully, the accused, should have been advised of his right to counsel and his right to remain silent. Absent such advice, the use in evidence of his second confession was improper. However, the second confession given to Officer Combs at the hospital almost repeated word for word the first confession to Officer Najera in the ambulance, and added nothing to the case except reiteration. (People v. Robinson, 62 Cal.2d 889, 897 [44 Cal.Rptr. 762, 402 P.2d 834].) Since the first confession was properly admitted in evidence, we see no prejudice to the defendant from the improper admission of a second confession covering the same ground, especially since the case was tried by the court without a jury. (People v. Ford, 234 Cal.App.2d 480, 494-495 [44 Cal.Rptr. 556].) In our opinion the impropriety of this admission did not result in a miscarriage of justice, and a different result on retrial is not probable. (People v. Atchley, 53 Cal.2d 160, 170-171 [346 P.2d 764]; People v. Moya, 53 [3 Cal.Rptr. 360, 350 P.2d 112]; People v. Garner, 57 Cal.2d 135, 144 [18 Cal.Rptr. 40, 367 P.2d 680]; United States v. Bayer, 331 U.S. 532, 540 [67 S.Ct. 1394, 91 L.Ed. 1654].) The constitutional provision with respect to harmless error applies. (Cal. Const., art. VI, § 4½; People v. Watson, 46 Cal.2d 818, 834-837 [299 P.2d 243]; People v. Modesto, 62 Cal.2d 436, 462-464 [42 Cal.Rptr. 417, 398 P.2d 753], Peters, J., concurring and dissenting.)

Appellant’s purported appeal from the order denying his motion for a new trial is dismissed. (Pen. Code, § 1237, subd. 1.)

The judgment of conviction is affirmed.

Herndon, J., concurred.