People v. Azure

• Decision Date: 07 March 1986
• Citation: 178 Cal.App.3d 591,224 Cal.Rptr. 158
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Walter James AZURE, Defendant and Appellant. Crim. 13861.

Page 158

224 Cal.Rptr. 158

178 Cal.App.3d 591

The PEOPLE, Plaintiff and Respondent, v. Walter James AZURE, Defendant and Appellant.

Crim. 13861.

Court of Appeal, Third District, California.

March 7, 1986.

Review Denied May 22, 1986.

Patricia A. Bowman, Citrus Heights, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Robert D. Marshall, Supervising Deputy Atty. Gen., and Michael T. Garcia, Deputy Atty. Gen., for plaintiff and respondent.

CARR, Associate Justice.

A jury convicted defendant of four counts of lewd and lascivious acts upon a child under the age of 14. (Pen.Code, § 288, subd. (a).) Defendant appeals, contending (1) his statements to the police were involuntary and should have been excluded from evidence as the product of coercive police interrogation, (2) the victims of the molestations were not credible witnesses, resulting in a verdict unsupported by sufficient evidence, (3) the trial court erred in refusing to admit evidence of the victims' prior sexual knowledge; and (4) the trial court erred in denying defendant's motion for a new trial. We have listened to the four-hour tape recording of defendant's interrogation and conclude defendant's first contention is meritorious. On that basis, we shall reverse the judgment. ¹

FACTUAL AND PROCEDURAL BACKGROUND ²

The following facts are taken from the police interrogation tapes and testimony at trial.

On March 20, 1983, Officer Virgil Lowe brought defendant to the Stockton Police Department for questioning. The interrogation began at 11:40 a.m. Lowe informed defendant he was a possible suspect in a child molestation investigation and read defendant his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.) Lowe then said defendant's step-grandchildren, Christie, Stephanie, and Dawn, ³ had reported a number of incidents of sexual abuse committed by defendant.

Defendant immediately denied the allegations and stated he believed the girls' mother, Karen B., was influencing the girls to tell these stories in order to end the relationship between defendant and Karen's mother. As Lowe gave more details of the reported incidents, defendant continued to deny his participation, saying he was trying to figure out what the girls were talking about and why they would say these things. In recounting the girls' version of events Lowe accurately repeated some of their statements and fabricated others. Defendant told Lowe that Christie and Stephanie had previously been victims of a sexual molestation. He also described incidents of sexual conduct by the girls, such as masturbation and grabbing and slapping at defendant's penis. Lowe asked defendant if he thought the girls were lying. Defendant said he did not think the girls were lying, but he had no recollection of any of these events.

Lowe told defendant that in order for defendant to receive help with his problem, he first had to admit he had a problem. Lowe added that he wanted the truth: if the events did not happen and the children were lying, he wanted to know why the girls would make up such a story. Defendant repeated that nothing happened, that he could not remember any incidents.

After approximately one and one-half hours of questioning, defendant continued to maintain he could not remember ever having molested the girls. He did not directly repudiate the alleged statements of his step-grandaughters, but stated if the girls reported these incidents, they might have happened although he could not remember any such occurences.

Raising his voice in apparent frustration, Lowe then told defendant, "You have to remember. You've got to remember because ... we're not leaving here until you remember all this stuff.... It had to have happened. Now I want to know from you when it happened and what were the circumstances." (Italics added.)

Questioning continued. After another one-half hour, defendant was still saying he was trying to figure out when these acts could have occurred. Lowe told defendant that he had to remember, that he knew defendant did it and he wanted the truth. Lowe repeated that he knew the girls were telling the truth and that if defendant would also be truthful he could get help. He added that it was impossible for defendant to have had intercourse with Christie, ejaculated and not remember having done so.

As the afternoon progressed and the questioning and prompting went on, defendant finally said that while lying with Christie on the living room floor, Christie might have "played with" defendant's penis and his penis might have slipped into her vagina. Defendant said, "that could have been what happened; put it down that way if you want to." He said another time, when he was lying down with the girls on the floor, Christie put defendant's penis between her legs, but that he got up and no penetration occurred. Neither of these events had been described by Christie.

Defendant denied ever having molested the girls in their bedroom or committing any other acts. Lowe responded that there must have been more times and that defendant was not admitting everything. Defendant again said he did not want to call the children liars and that the events had to have happened but he did not remember ever ejaculating or "french-kissing" the girls. He said he was physically unable to get an erection and that the only possible time something could have happened was the incident on the living room floor.

Lowe again said he believed the girls and that there had to be more times when penetration occurred. Defendant continued to deny it. Lowe said defendant's statements were "not good enough to call it a day" and that the various versions he had received from the girls and defendants did not add up. He told defendant to "quit beating around the bush and tell me what happened."

Defendant again said the penetration could have happened the one time when Christie was lying with defendant on the living room floor with her leg over defendant. He categorically denied any incidents with Stephanie or Dawn.

The interview concluded at 3:35 p.m. Defendant was placed under arrest and charged with five counts of lewd and lascivious conduct with a child under the age of 14.

Before trial, defendant moved to suppress the tapes of the interrogation and defendant's statements as the product of coercive questioning. After listening to the tapes, the testimony of the interrogating officer and argument, the trial court denied defendant's motion.

During his testimony at the suppression hearing, the officer stated the interview lasted about four hours; that he had told defendant "we're not going to leave, meaning both of us" until defendant remembered the molestation incidents; that he The tapes were subsequently played to the jury during the trial and defendant was convicted on four of the five counts. ⁴

said to defendant there was no way he (defendant) could get any help unless he admitted molesting the girls; that he (the officer) wanted to know now about the molestation because if he found out later it would cause defendant more problems; and that "we're not leaving" here until you remember all this stuff. Defendant did not testify at the suppression hearing but at trial he testified he felt the officer would not let him leave until he admitted molesting his step-grandaughters and that was the reason for his incriminating statements. The trial court did not indicate whether it [178 Cal.App.3d 598] found the confession voluntary under the beyond a reasonable doubt standard (People v. Jimenez (1978) 21 Cal.3d 595, 608, 147 Cal.Rptr. 172, 580 P.2d 672) or under the federal standard of preponderance of evidence. (Lego v. Twomey (1972) 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618.)

DISCUSSION

The privilege against self-incrimination protects a defendant against the use of his confession by the prosecution unless the confession is shown to be the product of a rational intellect and a free will. (People v. Jimenez, supra, 21 Cal.3d 595, 605, 147 Cal.Rptr. 172, 580 P.2d 672.) "In determining whether or not an accused's will was overborne, an examination must be made of 'all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation.' (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226 [36 L.Ed.2d 854, 862, 93 S.Ct. 2041, 2047].) The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were 'such as to overbear petitioner's will to resist and bring about confessions not freely self-determined.' (Rogers v. Richmond (1961) 365 U.S. 534, 544 [5 L.Ed.2d 760, 768, 81 S.Ct. 735, 741].) Statements which are 'the product of coercion, either physical or psychological, cannot stand ... because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system--a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.' (Id., at pp. 540-541 [81 S.Ct. at p. 739, 5 L.Ed.2d at p. 766].) Also coerced confessions are of doubtful reliability. (People v. Garner (1961) 57 Cal.2d 135, 163 [18 Cal.Rptr. 40, 367 P.2d 680] (conc. opn. of Traynor, J.).)" (People v. Hogan (1982) 31 Cal.3d 815, 841, 183 Cal.Rptr. 817, 647 P.2d 93.)

Before passage of Proposition 8 the burden of proof borne by the prosecution as to the voluntariness of a confession was beyond a reasonable doubt. (People v. Jimenez, supra, 21 Cal.3d at p. 608, 147 Cal.Rptr. 172, 580 P.2d 672.) In Jimenez, supra, the Supreme Court adopted the reasonable doubt standard as a judicially declared rule of criminal procedure and determined it was unnecessary to determine if this standard was also constitutionally compelled. (21 Cal.3d at p. 605, 147...