People v. Level

• Decision Date: 28 February 1980
• Docket Number: Cr. 34398
• Citation: 162 Cal.Rptr. 682,102 Cal.App.3d 897
• Court: California Court of Appeals Court of Appeals
• Parties: , 103 Cal.App.3d 899 The PEOPLE, Plaintiff and Respondent, v. Willie Edward LEVEL, Defendant and Appellant.

Page 682

162 Cal.Rptr. 682

102 Cal.App.3d 897, 103 Cal.App.3d 899

The PEOPLE, Plaintiff and Respondent, v. Willie Edward LEVEL, Defendant and Appellant.

Cr. 34398.

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

Feb. 28, 1980.

Rehearing Denied March 26, 1980.

Hearing Denied April 30, 1980.

Carolyn Froeberg, Marina Del Rey, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

LILLIE, Acting Presiding Justice.

Defendant was accused of murder in Kern County. After denial of his motion to suppress evidence, venue was transferred to Ventura County. A jury found him guilty of second degree murder. He appeals from the judgment.

Frances Brown and her husband attended evening classes at Bakersfield College. On November 15 she died of hemorrhage and cerebral laceration due to blunt force trauma with skull fracture by the hand of defendant.

About 6 p. m. Frances left her husband studying in their van parked in the college parking lot to attend a class. Shortly after 6 p. m. a student observed Frances carrying her books walk in the parking lot followed about 20 feet behind by defendant carrying a metal table leg with which he was poking the ground while he walked. Later her husband in the van saw Frances return to the parking lot followed by a man about 6 feet behind; when he looked up again he heard a thud and saw her hit the ground and bounce, then saw defendant bend over her, pick her up and try to drag her toward another car; he got out of the van and briefly pursued defendant who ran away Frances was unconscious and died soon thereafter in a hospital. Her books, purse and keys were strewn about; a metal table leg was on the ground. ¹

Defendant, who fit the description of the suspect, was arrested by police on the campus at 6:20 p. m.; fresh splattered blood was on his hands and shoes; his fingerprints were on the table leg. He gave written consent to search his car. A letterman's jacket was found in the trunk of the car; a description of the clothes worn by the suspect included a letterman's jacket. Tests showed that blood taken from the defendant's hands and his jacket, was not consistent with his blood type; blood on the metal table leg and jacket was consistent with that of Frances. A "TMDT" (metal detection) test indicated traces of steel in his right hand. After having been given his Miranda rights and waived the same, defendant made a confession which was received in evidence.

In his testimony ² defendant attempted to establish self defense.

Appellant's primary contention is that his confession was obtained in violation of his Miranda Rights. The following is part of the evidence adduced on the section 1538.5 motion in Bakersfield. Defendant was arrested on campus and transported to the station. He signed a written consent to a search of his car. He was in custody about three hours before being given his constitutional rights. During this time Officer Ennis talked with him about school; no question was asked concerning the offense; he only wanted to engage in conversation and not ask questions; in a case of major significance it was departmental policy that detectives conduct all investigation other than preliminary investigation at the scene; inasmuch as Officer Ennis did not intend to ask any questions, he did not advise defendant of his Miranda Rights; after about two hours defendant asked Officer Ennis if he could telephone his mother; having determined from defendant's driver's license that he was 19 years of age, he asked defendant to wait until the detectives arrived. Officer Ennis knew defendant's brother and friends, and his wife was one of defendant's former teachers; because defendant was sweating profusely and appeared extremely nervous, he conversed with defendant about mutual acquaintances and knowledge in order to relax him.

Detective Singleton arrived at 10:10 p. m. and advised defendant of his Miranda rights which he said he understood and waived, and said he would make a statement. Detective Singleton interviewed defendant for an hour during which he denied committing the offense; however, he "got the impression that (defendant) did want to make a statement regarding the actual facts of the assault. But he was for some reason or other, uneasy."; defendant then asked to talk with his mother; a telephone call was made and defendant talked with her two or three minutes; defendant then told Detective Singleton he wanted to have his mother present before he made any statement. As to what occurred next, Detective Singleton testified "And afterwards, we went back to the room, talked a little longer, and I asked him if he would make a statement if it was tape recorded; therefore, there could be no way that we could indicate in the report other than what he stated to us. . . . I asked if he would go ahead and make a statement without his mother there, if we tape recorded it, and he indicated he would. . . . I suggested it (that the second interview be taped) to him and he said he wished it taped."

On cross-examination Detective Singleton testified that defendant said he wanted to place a call to his mother, "That's when we broke . . . It is not that he didn't want to talk to me. He did not want to make a statement regarding the actual facts of the assault without talking to his mother."; however, after the phone call defendant told him he wanted to have his mother present Before he made any statement; they returned to the interview room waiting for her to arrive, and he (Detective Singleton) "suggested that he might not want to say something in her presence. He might feel uncomfortable, but if we put it on tape, then there would be no question as to what his statement was."; he got the "impression" that defendant wanted his mother present When he gave a statement but could not recall if he so stated; it was he (Detective Singleton) who suggested to defendant that he make a tape recording instead of having his mother present; although defendant's mother was at the station at the time defendant gave his confession, he neither saw nor talked to her until he finished.

The court denied the motion stating, "I can't find anything in the evidence produced that would indicate to me that there is in fact a violation of Miranda in this case." This court is not confronted with any conflict in the evidence relative to the taping of defendant's confession. Thus it is our duty to examine the uncontradicted facts to determine independently whether the trial court's conclusion of voluntariness was properly found. (People v. McClary, 20 Cal.3d 218, 229, 142 Cal.Rptr. 163, 571 P.2d 620.)

"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." (Miranda v. Arizona (1966) 384 U.S. 436, 473-474, 86 S.Ct. 1602, 1627-1628, 16 L.Ed.2d 694.) We are compelled under Miranda And the holdings of its California progeny (People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625; People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580; People v. Randall, 1 Cal.3d 948, 83 Cal.Rptr. 658, 464 P.2d 114; People v. Burton, 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793; People v. Carr, 8 Cal.3d 287, 104 Cal.Rptr. 705, 502 P.2d 513; People v. Superior Court (Keithley), 13 Cal.3d 406, 118 Cal.Rptr. 617, 530 P.2d 585; People v. Superior Court (Zolnay), 15 Cal.3d 729, 125 Cal.Rptr. 798, 542 P.2d 1390; People v. Disbrow, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272; People v. Enriquez, 19 Cal.3d 221, 37 Cal.Rptr. 171, 561 P.2d 261; People v. McClary, 20 Cal.3d 218, 142 Cal.Rptr. 163, 571 P.2d 620; People v. Pettingill, 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108), to hold, and we do so reluctantly, that the confession was inadmissible and mandates reversal of the judgment.

First, in the context of the events surrounding the confession the only reasonable interpretation of defendant's assertion to Detective Singleton that he wanted to have his mother present before he made any statement, is that he thereby invoked his privilege against self-incrimination and wished to remain silent. While defendant did not expressly say he did not want to talk any more to the detectives, Miranda teaches that if a suspect "indicates in any manner" that he wishes not to proceed with the interview, no matter the reason, the interrogation must cease. Miranda rights are deemed asserted when "conduct reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police At that time." (People v. Randall, 1 Cal.3d 948, 956, 83 Cal.Rptr. 658, 663, 464 P.2d 114, 119, fn. omitted; original emphasis.) He was not required to use any particular form of words or conduct to indicate his unwillingness at that time to continue with the interrogation. (People v. Superior Court (Keithley ), 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585; People v. Randall, 1 Cal.3d 948, 955, 83 Cal.Rptr. 658, 464 P.2d 114; People v. Burton, 6 Cal.3d 375, 381-388, 99 Cal.Rptr. 1, 491 P.2d 793) ³ or to give any explanation or reason therefor. (People v. Marshall, 41 Cal.App.3d 129, 134, 115 Cal.Rptr. 821.) Conduct inconsistent with a present unwillingness to discuss his case fully and...