People v. Guilmette

• Citation: 2 Cal.Rptr.2d 750,1 Cal.App.4th 1534
• Decision Date: 20 December 1991
• Docket Number: No. A051892,A051892
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Albert P. GUILMETTE, Defendant and Appellant.

Page 750

2 Cal.Rptr.2d 750

1 Cal.App.4th 1534

The PEOPLE, Plaintiff and Respondent, v. Albert P. GUILMETTE, Defendant and Appellant.

No. A051892.

Court of Appeal, First District, Division 4, California.

Dec. 20, 1991.

Review Denied March 19, 1992.

[1 Cal.App.4th 1536] Robert J. Graham, Oakland, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Morris Beatus, Supervising Deputy Atty. Gen., Ronald E. Niver, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

REARDON, Associate Justice.

Appellant Albert P. Guilmette was sentenced to an aggregate state prison term of

twenty-five years following his convictions of burglary, two counts of rape, assault with a deadly weapon, and false imprisonment, with weapon use enhancements and prior convictions being found true. He appeals, contending (1) that the trial court erred in admitting his post-arrest telephone conversation with the victim and (2) that the trial court erred in failing to provide an adequate response to questions from the jury during deliberations.

FACTS

During the early morning hours of January 16, 1990, appellant broke into the family home of his former girlfriend, Karen F., grabbed her from behind as she attempted to admit police who were responding to her earlier emergency telephone call, put a knife to her throat and threatened to kill her if she said anything. Karen was forced into her room at knifepoint by appellant.

After observing a broken window on a side door, receiving no response at the front door, and hearing "running [and] wrestling" inside, Sgt. Eskridge forced entry. He approached the closed door to Karen's room and announced, " 'Sheriff's Department.' " From inside the room, appellant responded, " 'Don't come in here. I'll kill her.' " Karen also stated, " 'Yeah, don't come in here. He's got a knife at my throat.' "

For the next four hours, appellant held Karen hostage. Efforts by police to negotiate with appellant were unsuccessful. During this time, appellant raped Karen twice. Appellant finally surrendered by leaving the room at approximately 6:37 a.m.

Appellant testified at trial. His version of the events was substantially different from that of the victim's. He admitted prying open a window with a knife to make entry, but explained that the reason for his entry was a fear that the victim had overdosed on drugs. When he heard the police at the front door, he became concerned because he was in possession of cocaine. Karen grabbed his hand and they ran down the hall to the bedroom. He testified that both he and Karen were under the influence of drugs and that the sexual activity was consensual.

DISCUSSION

A. Admissibility of Appellant's Post-Arrest Conversation With the Crime Victim

Appellant contends that the trial court erred in admitting his post-arrest statements made during the course of a telephone conversation with the victim. It is contended that the victim was acting as a police agent at the time of the conversation and that appellant had previously invoked his Miranda ¹ rights.

The facts relating to this contention are essentially undisputed. Following his arrest, appellant was transported to the sheriff's substation in San Leandro. There, Sgt. Eskridge contacted appellant and advised appellant of his Miranda rights. Eskridge testified that according to his report, appellant invoked his right to remain silent and to the presence of an attorney during questioning.

Shortly thereafter, appellant asked Eskridge to make a phone call for him. Eskridge agreed, dialed the number that appellant provided, and gave the receiver to appellant. Eskridge was then informed by appellant that "the people would not accept the collect call." This procedure was repeated, with the same number being dialed by Eskridge at appellant's request and with the same result. It was not until after this second call that Eskridge realized that the number being dialed was that of the victim's residence. When appellant made a third request, he was informed by Eskridge that there should be no contact with the victim.

Without any knowledge of the foregoing events, Deputy Alley responded to the Ferguson residence on the basis of a radio dispatch concerning annoying or threatening phone calls. When he arrived, Alley was informed by the victim's father that Initially, no phone calls were received. Alley then called the jail at Santa Rita, learned that appellant was now housed in an area without access to a telephone, and instructed jail personnel to move appellant to a location where there would be phone access. Shortly thereafter, the telephone rang and it was appellant calling.

collect calls had been received from appellant, which calls the family had declined to accept. Alley was also told by either Karen or her father that appellant was in jail because of crimes committed at the home earlier in the day. Karen told Alley that she wanted the calls stopped. Alley advised Karen that the only way to stop the calls was to speak with appellant. Karen agreed and a tape-recording device was affixed to the phone.

The ensuing conversation can best be described as an attempt by appellant to dissuade Karen from testifying against him. Some statements by appellant were made in response to questions suggested by Alley or his partner. Some statements by appellant were in response to questions asked independently by Karen. Some statements by appellant were simply volunteered and were not made in response to any question.

The positions espoused by the respective parties have been well briefed and are relatively straightforward. Appellant argues that the tape-recorded conversation was erroneously admitted because the evidence was the product of custodial interrogation, appellant had previously invoked his Miranda rights, and those rights were never waived by him. The Attorney General concedes that there was sufficient evidence to support the trial court's conclusion that Karen was acting as a police agent at the time of the challenged conversation. Citing McNeil v. Wisconsin (1991) 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 and Arizona v. Roberson (1988) 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704, it is also conceded that if a Miranda violation occurred, the entire conversation should have been excluded. The Attorney General maintains, however, that appellant's statements to Karen were not the product of custodial interrogation within the meaning of Miranda and that a prior invocation of rights, therefore, cannot serve to bar admissibility.

The Miranda rule is designed to protect and preserve an accused's Fifth Amendment ² privilege against self-incrimination during "incommunicado interrogation of individuals in a police-dominated atmosphere...." (Miranda v. Arizona, supra, 384 U.S. at p. 445, 86 S.Ct. at p. 1612.) As stated by the Miranda court, such an atmosphere tends to generate "inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." (Id., at p. 467, 86 S.Ct. at p. 1624.) "It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation.... When the suspect has no reason to think that the listeners have official power over him, it should not be assumed that his words are motivated by the reaction he expects from his listeners." (Illinois v. Perkins (1990) 496 U.S. 292, ----, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243.)

In Perkins, the United States Supreme Court held that a conversation between an incarcerated suspect and an undercover agent posing as a fellow inmate did not implicate the concerns underlying Miranda. The court's ruling was clearly articulated: "We reject the argument that Miranda warnings are required whenever a suspect is in custody in a technical sense and converses with someone who happens A similar result has been reached by our highest court. In People v. Williams (1988) 44 Cal.3d 1127, 245 Cal.Rptr. 635, 751 P.2d 901, the court found that Miranda "has never been applied to conversations between an inmate and an undercover agent." (Id., at pp. 1141-1142, 245 Cal.Rptr. 635, 751 P.2d 901.) The reason why Miranda has no application to this type of conversation is because "Miranda warnings serve to dispel the coercive effect of police custodial questioning" (id., at p. 1142, 245 Cal.Rptr. 635, 751 P.2d 901, emphasis in original) and "[w]hen a defendant talks to a fellow inmate, the coercive atmosphere of custodial police interrogation is absent." (Ibid.) The Williams court concluded that "the conversations between Oglesby [police agent] and defendant did not take place in a setting in which Miranda warnings were required, and thus introduction of those conversations into evidence did not violate defendant's Fifth Amendment rights. [Citations.]" (Ibid.)

to be a government agent. Questioning by captors, who appear to control the suspect's fate, may create mutually reinforcing pressures that the Court has assumed will weaken the suspect's will, but where a suspect does not know that he is conversing with a government agent, these pressures do not exist. The State Court here mistakenly assumed that because the suspect was in custody, no undercover [1 Cal.App.4th 1540] questioning could take place." (Illinois v. Perkins, supra, 496 U.S. at p. ----, 110 S.Ct. at p. 2397.)

One would be hard-pressed to characterize appellant's conversation with Karen as "police custodial" interrogation as defined in Miranda and as construed by subsequent decisions, and equally hard-pressed to distinguish the setting or atmosphere of the conversation from those in Perkins and Williams. Here, appellant initiated the telephone contact and sought conversation with the crime victim. He was not forced to speak with the victim and, in fact, had been admonished by Eskridge not to do so. In...