People v. Disbrow

• Decision Date: 06 February 1976
• Docket Number: Cr. 18445
• Citation: 545 P.2d 272,127 Cal.Rptr. 360,16 Cal.3d 101
• Court: California Supreme Court
• Parties: , 545 P.2d 272 The PEOPLE, Plaintiff and Respondent, v. Robert Marshall DISBROW, Defendant and Appellant.

Page 360

127 Cal.Rptr. 360

16 Cal.3d 101, 545 P.2d 272

The PEOPLE, Plaintiff and Respondent, v. Robert Marshall DISBROW, Defendant and Appellant.

Cr. 18445.

Supreme Court of California In Bank.

Feb. 6, 1976.

As Modified on Denial of Rehearing March 10, 1976.

Albert D. Silverman, Canoga Park, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Donald F. Roeschke, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant was charged in court I with the murder of Kathleen Pairis, and in count II with the murder of his wife Harriet. (Pen.Code, § 187.) It was further alleged that a firearm was used in the commission of both offenses. (Pen.Code, § 12022.5.) Following a jury trial defendant was found guilty on count II of murder in the second degree involving the use of a firearm. The jury was unable to reach a verdict on count I, and a mistrial was declared as to that charge. Thereafter defendant waived trial by jury on count I and the matter was submitted to the court on the transcript of the prior trial. The court adjudged defendant guilty of voluntary manslaughter, a lesser included offense, and found the allegation of use of a firearm to be true. Defendant's motion for new trial was denied and he was sentenced on each count to state prison for the term prescribed by law, the sentences to run concurrently. He appeals from the judgment (Pen.Code § 1237), predicating error on the use of certain evidence to impeach his testimony at trial.

Defendant was separated from Harriet on March 21, 1973, after a marriage of only four months. On the afternoon of April 15, 1973, he drove to the home of Kathleen Pairis, one of Harriet's friends. He there confronted Kathleen, her mother Pernilla Blankenship, and other members of the family, and demanded to be told the whereabouts of his estranged wife and two stepchildren. Mrs. Blankenship testified that defendant threatened to kill his wife and 'anybody else that got in his way.' He then left, but returned four or five times that day and repeated the threats.

The next evening defendant once more went to the Pairis home. In the living room at this time were Mrs. Blankenship, Harriet, Kathleen, two Pairis children and two Disbrow children. Mrs. Blankenship testified she heard a loud knock at the door and when she went to answer she saw defendant through a peephole. She advised Harriet not to open the door and began collecting the children and removing them to an adjoining bedroom.

While in the other room Mrs. Blankenship heard what she described as a 'loud blam' and then the voice of Kathleen demanding that defendant leave. ¹ She returned to the living room and saw defendant dragging Harriet by the hair with a pistol at her temple. Kathleen was also armed with a pistol. Mrs. Blankenship tried to intercede but defendant responded by pointing the gun at her. She pushed him away and defendant then directed his attention to Kathleen who was trying to call the police. There was a brief struggle over the telephone during which Mrs. Blankenship seized it and ran to the kitchen to make the call. She was unable to raise the operator and began searching for a knife. She then heard a single shot, a groan, followed by a flurry of gunshots, and ran to the bedroom to protect the children. She remained there until she heard a car drive away, then returned to the living room and discovered the bodies of Kathleen and Harriet.

On April 21, 1973, five days after the shooting, Deputy Sheriff Brown observed defendant sleeping in a bloodstained sleeping bag in his car. He inquired about the stains and defendant replied, 'I'm shot in the legs. My name in Disbrow. I've been thinking about surrendering to you. I'm wanted for murder in Van Nuys.' Defendant also said, 'She shot me first.' He had been shot five times.

Defendant was taken to a hospital for treatment. While being wheeled on a gurney from the emergency room he was interviewed by Detective Yost, who was surreptitiously taping the conversation on a concealed recorder. After being informed of his rights under the rule of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, defendant stated he wished to remain silent and consult an attorney. Yost, however, continued the interrogation, representing to defendant that any statements he made could Not be used against him in court. Eventually, persuaded by these false assurances, defendant made certain inculpatory statements.

At trial defendant interposed a defense of self-defense, contradicting the testimony of Mrs. Blankenship and claiming he did not fire until after he had been shot by Kathleen. ² Over defendant's objection portions of the inculpatory statements elicited at the hospital were admitted to impeach his testimony. ³ Defendant contends that the use of the illegally obtained statements as impeachment evidence constitutes reversible error. ⁴

The People make no claim that defendant's statements to Detective Yost at the hospital were other than the product of an illegal police interrogation. Miranda made explicit the rule that a suspect's declaration of intention to remain silent and stand on his constitutional rights cannot thereafter be followed by additional questioning: 'Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, The interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of Compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.' (Fn. omitted; italics added.) (Miranda v. Arizona (1966) supra, 384 U.S. 436, 473--474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694.) Given the tainted nature of defendant's statements to Detective Yost, it is clear they are inadmissible as part of the prosecution's case in chief. (Id. at p. 479, 86 S.Ct. 1602; People v. Fioritto (1968) 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625.) The question is whether the statements may be used to impeach defendant's testimony.

In Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, the Supreme Court held that statements which were inadmissible as affirmative evidence because of a failure to comply with Miranda could nevertheless be used for impeachment purposes to attack the credibility of a defendant's trial testimony, as long as the statements were not 'coerced' or 'involuntary.' The court dismissed language to the contrary in Miranda as dictum (Id. at p. 224, 91 S.Ct. 643) ⁵ and concluded, 'The shield provided by Miranda cannot be perverted into a license to use prejury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.' (Id. at p. 226, 91 S.Ct. at p. 646.)

In People v. Nudd (1974) 12 Cal.3d 204, 208, 115 Cal.Rptr. 372, 524 P.2d 844, a bare majority of this court 'adopted' the Harris rationale as the law in California. The defendant in Nudd was an inmate at a state correctional facility who was charged with possession of narcotics. A guard had surprised the defendant while the latter was holding narcotics, and after a brief scuffle some material was flushed down the cell toilet. Informed of his Miranda rights the defendant chose to remain silent. He was then invited to speak 'off the record' and finally admitted that while he liked the officer a struggle was necessary in order to dispose of the contraband. At trial the defendant denied every allegation in the People's case, and the 'off the record' admission was introduced to impeach his credibility. No limiting instruction was requested or given, and hence the jury were presumably free to consider the illegally obtained confession as substantive evidence. ⁶

In the present case we reexamine Nudd and its uncritical acceptance of the Harris rationale. A useful starting point in this inquiry is the authority relied on the Harris itself, i.e., the general availability of an 'impeachment exception' to exclusionary rules.

An exclusionary rule analogous to Miranda is predicated on the Fourth Amendment's proscription of unreasonable searches. (Weeks v. United States (1914) 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652.) The first case in which an impeachment exception to the Weeks exclusionary rule was claimed was Agnello v. United States (1925) 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, and there the argument was unavailing. The defendants in Agello were charged with conspiracy to sell cocaine in violation of the Harrison Act. Following their arrest narcotics officers had conducted a warrantless search of defendant Agnello's home and there found a can of cocaine. At trial this evidence was excluded under Weeks but the prosecution proceeded on the strength of other, legally seized evidence. On cross-examination Agnello stated he had never seen narcotics. He was then asked if he had ever seen the can of cocaine, to which he responded in the negative. In rebuttal, over defense objection, the government was permitted to introduce the can illegally seized from Agnello's bedroom.

The Supreme Court reversed, holding the can to be the product of an illegal search, admissible neither as part of the case in chief nor as rebuttal evidence: '(T)he contention that the evidence of the search and seizure was admissible in rebuttal is without merit. In his direct examination, Agnello was not asked and did not testify concerning the can of cocaine. In cross-examination, in answer to a question permitted over his objection, he said he had never seen it. He did nothing to waive his...