People v. Brockman

• Decision Date: 23 December 1969
• Docket Number: Cr. 7579
• Citation: 2 Cal.App.3d 1002,83 Cal.Rptr. 70
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Jack E. BROCKMAN, Defendant and Appellant.

Page 70

83 Cal.Rptr. 70

2 Cal.App.3d 1002

PEOPLE of the State of California, Plaintiff and Respondent, v. Jack E. BROCKMAN, Defendant and Appellant.

Cr. 7579.

Court of Appeal, First District, Division 1, California.

Dec. 23, 1969.

Hearing Denied Feb. 18, 1970.

Marteen J. Miller, Public Defender of Sonoma County, by Michael F. O'Donnell, Deputy Public Defender, Santa Rosa, for appellant.

Thomas C. Lynch, Atty. Gen. of California, Michael J. Phelan, William D. Stein, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment of conviction, following a trial by the court, of murder in the first degree (Pen.Code, § 187) and kidnaping (Pen.Code, § 207), and from an order denying his motion for a new trial. ¹ The sole contention is that the trial court improperly admitted an incriminating tape-recorded statement given by defendant.

The facts pertinent to our inquiry are as follows: On February 10, 1968, Inspector Walter Gesek of the Santa Rosa Police Department, who had been working on a case involving the homicide of Charles Kaufman and the kidnaping of Glenna Foote on October 7, 1967, went to defendant's home at about 10 a.m. He was accompanied by Officer Roger McDermott. Defendant's wife answered the door and told Gesek that defendant was in bed. Gesek, who had known defendant for approximately 15 years, awakened defendant and informed him that he was being arrested for murder. Officer McDermott gave defendant the Miranda warning ² by reading it from a card. Both Gesek and McDermott asked defendant if he understood these rights and he responded in the affirmative. McDermott then asked defendant if, having these rights in mind, he wished to make a statement without an attorney present. Defendant replied 'Give me a minute.' Defendant then dressed and was taken to the office of Police Chief Flohr.

Upon entering the chief's office, Flohr asked defendant, in the presence of Gesek, if he understood his rights and defendant replied that he had been advised of his rights. The chief then told defendant that he had knowledge of the incidents leading up to Kaufman's murder and that they had information that defendant and three other persons were involved. During this conversation, which took from 15 to 20 minutes, defendant stated on several occasions that he didn't care to discuss the matter. When Gesek was queried as to whether, during this conversation, Chief Flohr made the statement to defendant, 'Look out that someone doesn't put the gun in your hand,' Gesek replied, 'Seems to me there was something said like that.'

As defendant was being escorted from the chief's office to the county jail, he made the following statement to Gesek: 'Walt, give me a couple of days and I'll make a statement.' ³ Two days later defendant was taken to the district attorney's office. Present were Assistant District Attorney Hyland, Gesek, Flohr, police Captain Spaulding, and district attorney investigator Bach. After introducing the persons present, Hyland stated: 'Now, uh, you've been warned before about your rights, isn't that correct?' Defendant replied, 'Yes, I have.' Hyland then told defendant that 'we've got the whole story on this murder. And we want to know if you want to talk about it at all.' Defendant replied: 'Now, why do you say you have the whole thing or not, about the murder and all that?' Hyland then told Brockman what he knew, and Flohr interjected his knowledge of certain incidents, including statements made by other participants. During this colloquy, which from time to time included questions interposed by defendant to Hyland, defendant made admissions and other incriminating statements. At the close of the interrogation defendant was advised that he did not have to make any statement unless he wanted to and was asked if he had been advised of his rights at the time of his arrest, if he understood those rights, and if the statement he had given was voluntary. Defendant replied in the affirmative.

Adverting to the question presented we note, initially, that defendant concedes that a proper Miranda warning was given when he was arrested on February 10, 1968. His first contention is that he was deprived of his Miranda rights when he was not given the Miranda warning before the subsequent interrogations by Chief Flohr and Assistant District Attorney Hyland. With respect to this contention, we observe that Flohr did not interrogate defendant but merely made certain statements concerning Flohr's knowledge of the case and admonished defendant that someone might put the gun in his hand. In any event, a Miranda warning is not required before each meeting of a defendant and the police which is determined to be a 'custodial interrogation,' but one warning of the Miranda rights adequately given is sufficient for subsequent interrogations. (People v. Johnson, 70 A.C. 504, 511, 74 Cal.Rptr. 889, 450 P.2d 265; People v. Sievers, 255 Cal.App.2d 34, 38, 62 Cal.Rptr. 841; and see People v. Johnson, 70 A.C. 577, 594, 75 Cal.Rptr. 401, 450 P.2d 865; contra, see People v. Matthews, 264 Cal.App.2d 557, 569, 70 Cal.Rptr. 756.) The determination, in each case, is whether the Miranda warning sufficiently informs a defendant of his constitutional rights so that he has an understanding of these rights during subsequent interrogations. (People v. Johnson, supra, at p. 594, 74 Cal.Rptr. 889, 450 P.2d 265.)

In the instant case, as pointed out above, it is conceded that defendant, at the time of his arrest, was sufficiently informed of his Miranda rights. It is clear that he understood these rights when, in response to Chief Flohr's inquiry as to whether he understood his constitutional rights, he stated he had been advised of them. That he understood his rights is further made apparent by the fact that he also informed Flohr that he did not care to discuss the matter. The use of the privilege against self-incrimination, preceded by a clear showing that defendant has been informed of his rights, indicates that he understands those rights. (People v. Johnson, supra, 70 A.C. 577, 594, 75 Cal.Rptr. 401, 450 P.2d 865.)

When defendant indicated to Flohr that he did not care to discuss the matter he exercised his Fifth Amendment privilege and thereupon the law enforcement officers were required to cease any interrogation of defendant. (Miranda v. Arizona, supra, 384 U.S. 473--474, 86 S.Ct. 1602; People v. Fioritto, 68 Cal.2d 714, 718, 68 Cal.Rptr. 817, 441 P.2d 625; People v. Ireland, 70 A.C. 557, 570--571, 75 Cal.Rptr. 401, 450 P.2d 865.) This principle is based upon the tationale that police are to be prevented 'from wearing down a prisoner's resistance by repeated pressuring until he finally makes the statement desired in order to get peace.' (People v. Milton, 270 A.C.A. 438, 445, 75 Cal.Rptr. 803, 808.)

Although Miranda prohibits continued questioning Once an individual has asserted his constitutional rights, it does not prohibit subsequent admissions or confessions which are voluntarily initiated by the suspect. (People v. Fioritto, supra, 68 Cal.2d 714, 719, 68 Cal.Rptr. 817, 441 P.2d 625.) Accordingly, where the prisoner or suspect initiates the subsequent interview, evidencing a change of mind not affected by official action, there may be an admissible confession or admission. (People v. Fioritto, supra; People v. Lara, 67 Cal.2d 365, 392, 62 Cal.Rptr. 586, 432 P.2d 202; People v. Milton, supra, 270 A.C.A. 438, 445--446, 75 Cal.Rptr. 803; People v. Duran, 269 A.C.A. 101, 105--106, 74 Cal.Rptr. 459; People v. Brashier, 271 A.C.A. 354, 359, 76 Cal.Rptr. 581; People v. Chambers, 276 A.C.A. 117, 134--135, 80 Cal.Rptr. 672.) The inquiry, in each instance, therefore, is whether the further discussion was brought about by renewed police interrogation or was initated by the suspect. (People v. Fioritto, supra; People v. Brashier, supra, at p. 361, 76 Cal.Rptr. 581.)

When the suspect initiates the subsequent interview after having previously asserted his Miranda rights, a voluntary statement, knowingly and intelligently made, constitutes a waiver of constitutional rights. (People v. Hill, 66 Cal.2d 536, 553, 58 Cal.Rptr. 340, 426 P.2d 908; People v. Fioritto, supra, 68 Cal.2d 714, 719, 68 Cal.Rptr. 817, 441 P.2d 625; People v. Lara, supra, 67 Cal.2d 365, 392, 62 Cal.Rptr. 586, 432 P.2d 202; People v. Duran, supra, 269 A.C.A. 101, 106, 74 Cal.Rptr. 459; see People v. Johnson, supra, 70 A.C. 577, 594, 75 Cal.Rptr. 401, 450 P.2d 865.) In determining whether there has been a waiver of constitutional rights, the issue must be resolved on the whole record. (People v. Lara, supra, at p. 376, 62 Cal.Rptr. 586, 432 P.2d 202; People v. Johnson, supra, 70 A.C. 504, 511, 74 Cal.Rptr. 889, 450 P.2d 265; People v. Lantz 265 Cal.App.2d 5, 71 Cal.Rptr. 188), and its resolution must depend upon the particular facts and circumstances surrounding the case under consideration, including the background, experience, and conduct of the accused. (People v. Johnson, supra, at p. 511, 74 Cal.Rptr. 889, 450 P.2d 265.) The attendant facts must, therefore, show clearly and convincingly that the accused did relinquish his rights knowingly, intelligently and voluntarily (People v. Johnson, supra, 70 A.C. 577, 594, 75 Cal.Rptr. 401, 450 P.2d 865), and the burden of making such a showing is upon the prosecution. (People v. Rodriguez, 256 Cal.App.2d 663, 668, 64 Cal.Rptr. 253; People v. Hildabrandt, 244 Cal.App.2d 423, 430, 53 Cal.Rptr. 99; see People v. Lara, supra, 67 Cal.2d 365, 391, 62 Cal.Rptr. 586, 432 P.2d 202.) Procedurally, the determination of this issue is primarily a question for the trial judge, and his determination will not be disturbed by an appellate court unless, in the light of the applicable principles, it is palpably erroneous. (People v. Stafford, 240 Cal.App.2d 422, 424, 49 Cal.Rptr. 598; People v. Sosa, 251 Cal.App.2d 9, 17, 58 Cal.Rptr. 912; People v. Duran, supra, 269 A.C.A. 101,...