People v. Adams

• Decision Date: 15 June 1983
• Docket Number: Cr. 5797
• Citation: 192 Cal.Rptr. 290,143 Cal.App.3d 970
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Nancy ADAMS, Defendant and Appellant.

Page 290

192 Cal.Rptr. 290

143 Cal.App.3d 970

The PEOPLE, Plaintiff and Respondent, v. Nancy ADAMS, Defendant and Appellant.

Cr. 5797.

Court of Appeal, Fifth District, California.

June 15, 1983.

Hearing Denied Sept. 8, 1983.

[143 Cal.App.3d 974] Quin Denvir, State Public Defender, Cynthia A. Thomas, Deputy State Public Defender, Sacramento, for defendant and appellant.

George Deukmejian and John K. Van de Kamp, Attys. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., James T. McNally and Carla J. Caruso, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

PAULINE DAVIS HANSON, Associate Justice.

Appellant, convicted by a jury of the first degree murder of her friend and lover, contends that crucial admissions were obtained from her through impermissibly coercive police tactics and that the use of these statements and their fruits was prejudicial. We agree that critical statements of appellant were the product of psychological coercion and other improper influences during questioning. Our reasons for reversing the judgment on this ground are discussed in detail. (People v. McClary (1977) 20 Cal.3d 218, 227, 142 Cal.Rptr. 163, 571 P.2d 620.)

Appellant was charged by information filed in Kings County with the murder of Jerry Lee Pollock in violation of Penal Code section 187, subdivision (a), and with the use of a gun in the commission of the offense. (Pen.Code, § 12022.5.)

Appellant's pretrial common law motion to suppress statements on the ground of coercion by police interrogators and to dismiss (Pen.Code, § 995) was denied in Kings County Superior Court. Thereafter, appellant's petition for a writ to overturn the ruling was denied by this court. Appellant's pretrial motion for change of venue was denied. After jury selection began, a renewed motion for change of venue was granted and the case was transferred from Kings County to Kern County.

The case was tried twice in Kern County. The jury in the first trial was unable to reach a verdict and the court declared a mistrial. Before the second jury trial appellant renewed her motion to suppress statements made during questioning by the Kings County Sheriff and all statements which followed this interrogation; the motion was denied. On the 13th day of trial, appellant was convicted of first degree murder with the use of a gun. She was sentenced to state prison for 25 years to life plus a consecutive term of two years for the gun use allegation.

FACTS

Jerry Lee Pollock was killed shortly after 8:10 p.m. ¹ on the rainy evening of February 19, 1980, in a rural area two miles south of Lemoore in Kings County. Soon after Pollock was shot, Dave Oliveira and his wife Kathy approached the intersection of 19th Avenue and Idaho and saw a van with flashing lights in the middle of the road. Oliveira also noticed a body in the road; the van moved forward and back as the headlights went on and off once and the flashing lights came on.

The Oliveiras stopped their car and ran up to the body. Appellant got out of the driver's side of the van and approached them, saying " 'Please help me. Oh, God, please help me.' " Oliveira testified the victim "was not breathing" and appeared to have been hit by a car. He sent his wife to the nearest house, the Leal home, for assistance. No one was in the area other than appellant, Oliveira and the victim.

Oliveira asked appellant what happened and appellant replied, " 'They shot my Jerry.' " Appellant said while she and Pollock were parked at the intersection a car stopped and one of the occupants asked Pollock for help. The unidentified man shot Pollock and, when Pollock attempted to run, more shots were fired. Appellant said she saw the attackers beat and kick Pollock and as she knelt beside the victim, one of the men aimed a gun at her head and squeezed the trigger; the gun misfired and appellant blacked out. After Oliveira arrived, appellant sat in the van holding a wallet and said " 'They didn't even take his money.' " When Tony Leal and two others arrived, Oliveira drove appellant in the van to the Leal home where he called appellant's father at her request. Appellant was crying as she talked.

Kathy Oliveira called the sheriff's department from the Leal home and was present when her husband brought appellant to the house. Appellant lay on top of her purse on a couch in the living room; she looked uncomfortable. When Mrs. Oliveira offered to take the purse to make her more comfortable, appellant "grabbed it and said 'I'm okay,' " putting the purse farther behind her. Appellant repeated her account of the attack upon "Jerry" by two or three men. One of the men who had Pollock's wallet threw the wallet down. Appellant explained she and Pollock had been waiting to meet a woman who was going to show them a house. Appellant said they had planned to get married the next day. When Mrs. Oliveira offered to put the victim's wallet, which had bills protruding from it, into appellant's purse, appellant said " 'No, I'll hold onto the wallet.' "

Sheriff's officers arrived and appellant again described an assault by strangers. When appellant's father arrived appellant said, " 'Oh, Daddy, they shot my Jerry.... Oh, and Daddy, we had a surprise for you, because we were going to get married tomorrow.' "

Eventually the Kings County Sheriff, who had been sheriff for two and one-half years and who was acquainted with appellant, arrived. He greeted her by her first name and talked with her alone. Appellant told the sheriff substantially the same story and agreed to accompany officers to the scene to answer further questions. She described a shooting by strangers, but could not provide a useful description of the suspects or the vehicle. Appellant returned to the scene in the front seat of the sheriff's car.

Appellant spent 10 to 15 minutes with officers at the scene and agreed to repeat her statement with a court reporter present, but requested that she first use a respirator at home to stem a slight asthma attack. The sheriff drove appellant and her father to her residence in Hanford and waited 10 minutes while appellant went into her bedroom alone, taking her purse. The sheriff then drove appellant directly to the sheriff's department where a detective sergeant in the Kings County Sheriff's Office took a court-reported statement commencing at 12:55 a.m. and concluding at 3 a.m., February 20, 1980. ² This entire statement was read into the record. It relates in detail appellant's activities during the day and the previous day and an account of the shooting similar to appellant's earlier statements. In the reported statement, appellant said she thought she hit Pollock with the van while trying to back the vehicle close enough to lift him inside. She claimed she was unaware whether Pollock had owned a gun, and explained that she spent the day moving the victim's possessions into her apartment but saw no gun.

The testimony of a pathologist and a criminalist established that Pollock was shot in the chest with a .22 caliber semiautomatic pistol. Dr. Dollinger, the pathologist, testified that Pollock bled to death internally within minutes of receiving a "perforated" gunshot wound. The victim sustained multiple severe abrasions consistent with being run over by the van.

At the scene of the homicide, the detective sergeant found a .22 caliber live round, a .22 caliber spent cartridge and two pools of blood, one "across the road" from the body. After appellant gave her court-reported statement on February 20, 1980, the detective sergeant found a live .22 caliber bullet on the floorboard of the van and a spent .22 caliber cartridge on the passenger's seat. The two spent rounds came from a .22 caliber semiautomatic pistol. The live bullet in the van had "extractor marks" indicating it was manually removed from the pistol; the other live round "probably ... was never in the ... pistol." Another spent cartridge was later found in the defroster vent on the driver's side of the van; it was fired from the same pistol.

Between the 20th and 28th of February, the detective sergeant discovered from other sources that the victim had owned a .22 caliber Ruger semiautomatic weapon which normally was kept in Pollock's apartment, but had not been found by police officers. The detective sergeant's investigations also indicated that appellant was seen moving clothing and furnishings from the victim's apartment on the day he was shot. He learned from the criminalist that the probable weapon was a Ruger .22 semiautomatic. By February 28, 1980, appellant was a suspect in the detective sergeant's mind.

On February 28, 1980, a search warrant for appellant's residence and vehicle was obtained and served. The officers found belongings of Pollock and letters from appellant addressed to the victim, but no firearm. When appellant arrived at her residence at about 7 p.m., she was advised of her Miranda (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) rights by the detective sergeant. Appellant waived her rights and agreed to speak with him. ³ Appellant was questioned regarding her activities prior to the shooting. She repeated her story and again denied knowledge that the victim had owned a gun. At the conclusion of this interview, which lasted two and one-half to three hours, the detective sergeant asked appellant if she would be willing to come to the sheriff's office the next day, February 29, to make a video tape reconstruction of the incident. Appellant said "she would be more than willing to do this if it would assist in the efforts to apprehend the individuals who had killed her Jerry."

On February 29, the victim's van was driven to the scene where the detective sergeant played the part of Jerry Pollock, another officer played the unknown suspect, and appellant played herself. The events were reenacted under appellant's direction and video taped. Appellant was not given...