People v. McClary

• Decision Date: 02 December 1977
• Docket Number: Cr. 20080
• Parties: , 571 P.2d 620 The PEOPLE, Plaintiff and Respondent, v. Lorrie Sue McCLARY, Defendant and Appellant.
• Court: California Supreme Court

Page 163

142 Cal.Rptr. 163

20 Cal.3d 218, 571 P.2d 620

The PEOPLE, Plaintiff and Respondent, v. Lorrie Sue McCLARY, Defendant and Appellant.

Cr. 20080.

Supreme Court of California.

Dec. 2, 1977.

Lawrence M. Gassner, Upland, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Jay M. Bloom and Harley D. Mayfield, Deputy Attys. Gen., for plaintiff and respondent.

RICHARDSON, Justice.

Defendant Lorrie Sue McClary appeals from a conviction of first degree murder. (Pen.Code, § 187.) Among other contentions, defendant asserts that the trial court committed reversible error when it permitted the prosecution to introduce into evidence (1) certain portions of a tape-recorded statement made by defendant during the course of police interrogation, and (2) a filmed "reenactment" of the crime made by defendant shortly after recording her statement. Based upon our independent review of the record, we will conclude that both the statement and the reenactment were involuntary, being induced by implied threats of punishment and promises of leniency; that the error in admitting this evidence was prejudicial; and that accordingly defendant's conviction must be reversed.

On August 29, 1975, a highway patrolman discovered the body of 79-year-old Anna G. Mills in San Bernardino County. An autopsy determined that she had died from strangulation. Acting on information known to them, on September 30, 1975, San Bernardino County officers arrested defendant and her companion Sonny Wilson in San Mateo County, and within two hours of her arrest the officers conducted a taped "interview" with defendant, who was then 16 years of age. Although defendant's statements during this initial conversation were suppressed at trial, and accordingly are not directly at issue herein, we review the surrounding circumstances in some detail, as they bear on the propriety of the defendant's second interview, a part of which was submitted to the jury.

Defendant was arrested at 11:45 a. m., and her first statement to the interrogating officers was given around 1 p. m. the same day. The interview was conducted by Detective May and Sergeant Edmonds of the San Bernardino Sheriff's Department. May commenced the conversation by advising defendant that the officers were investigating Mrs. Mills' murder, that "we do have warrants for you and Sonny for the murder," based on "information we've developed," and that since defendant was "officially under arrest," the officers would advise her of her rights. May next informed defendant of her rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, including the right to appointed counsel, and asked defendant if she wished to talk with the officers. Defendant replied, "Well I don't have any money to get a lawyer or nothing like that." The officers explained that an attorney could be appointed for her without charge, and that "If you want an attorney present before you talk to us about anything down there (sic ), you can have an attorney." Defendant replied, "OK, well um what a decision. I'd like an attorney because this is serious. I know that and I want to get as much help as I can because I didn't do anything." (Italics added.)

Despite defendant's immediate request for an attorney, the officers continued to interrogate her. Sergeant Edmonds accused defendant of having previously "lied" to the officers regarding a wallet connected to the murder, and he told defendant that "Now maybe you're not lying to us about the murder. We don't know. But we know that you're lying to us about this wallet. (P) . . . So do you want to tell us anything about the wallet now?" Once again, defendant replied, "I'd rather wait and talk to an attorney first." (Italics added.) Yet the interrogation continued, the officers describing the various items of incriminating evidence which they had marshalled, and urging defendant "to tell your side of the story."

Thereupon, defendant explained that Mrs. Mills had picked up Sonny and her while they were hitchhiking; that they stayed at Mrs. Mills' cabin for a few days at her invitation; that Mrs. Mills left to visit friends; and that when she failed to return, defendant and Sonny notified the authorities. Defendant denied that she or Sonny had murdered Mrs. Mills, stating "I mean we did do some things wrong which I'll discuss with my lawyer, but we did not kill Mrs. Mills and we don't want to be blamed for that." (Italics added.)

The interrogation continued, and Sergeant Edmonds declared that although the officers had gathered much information about the murder, ". . . we're not going to tell you what we know. If you don't think enough of your own welfare to give us your side of the story." Stating that "We have enough information to fully prosecute you for murder," May then began a lengthy discourse, the substance of which was that defendant was a "liar," that the officers could prove she was lying, and that she could be tried either as a "principal" to murder thus subject to the death penalty, or as an accessory after the fact, depending on the extent of defendant's knowledge and involvement. (The officer's statement that defendant could be subject to the death penalty was incorrect for, under the law then in effect, the death penalty could not be imposed upon any person who was under the age of 18 years at the time of the commission of the offense; Pen.Code, § 190.3.)

The clear implication of the officer's remarks was that unless defendant changed her story and confessed her true involvement in the crime, she would be tried for murder. Thus, May stated at one point in the interview that "You can tell us the truth. You're (sic ) involvement can be less than what we think it is right now. It might be more. I don't know. You're the one that's going to have to say. You can either be a direct participant, or you can be an accessory after the fact. I don't know which one. You're the one that knows. What we're going to try you for unless your story turns out to be true and we can prove your part of the story true, you're going to be tried as a principal, as the person who committed the murder. Do you understand that? Unless your story changes to where you can say something else happened and we can prove you true, then you're going to be tried the other way." (Italics added.)

In response to the officer's discourse, defendant asked for a further explanation of the difference between a principal and an accessory. Detective May, explaining that a principal is one who committed the murder or participated in some way, whereas an accessory only has "knowledge" of the murder after it occurred, added, "They are not punishable by life imprisonment. They're not punishable by death." Once again, May stated that "unless we hear a different story," the officers would consider defendant the principal; that the officers have "shot down" defendant's version of the events; that "There may be another story which means maybe you are not directly involved, but maybe you're an accessory" and that "It's all up to you, Lorrie. We can't force you (to talk)."

The interview terminated at 2:50 p. m. after defendant stated "I think I'd like to talk to a lawyer." (Italics added.) This was the fourth time during the interview that defendant had asked for an attorney to assist her. No attorney was obtained.

Following the interview, defendant remained in police custody. Approximately two and one-half hours later the officers sought and obtained consent from her and Sonny to search their apartment, and brought defendant with them as they conducted the search, which search produced several items of property subsequently proved to have belonged to Mrs. Mills. (The propriety of the search was not challenged at trial, nor is it presently before us.) In the officers' car, following the search, defendant said that she "wished to tell the truth." Detective May informed her that because she had requested an attorney he could not discuss the matter with her unless she initiated the conversation. She replied that she did want to discuss the case in the absence of an attorney, and the conversation commenced at approximately 6:50 p. m., approximately four hours after the first interview had terminated.

The second interview was conducted by Detective May at the San Mateo County jail in Redwood City and was also tape recorded. At the commencement thereof, May established that defendant had requested the "reinterview," and that she was "now willing to talk . . . without an attorney present." Defendant also confirmed that no "promises" had been made to her to induce her to give a further statement. During the course of this conversation (which lasted 1 hour and 20 minutes), defendant admitted that she had wrapped a rope around Mrs. Mills' neck and pulled on it after Mrs. Mills had assertedly jabbed at Sonny and her with a knife; that Sonny also pulled on the rope as defendant and Mrs. Mills struggled with each other; and that Mrs. Mills died as a result of their actions. Defendant detailed the circumstances of the event, and of her attempts to cover up the killing. At the conclusion of the interview, defendant agreed to give a filmed "crime re-enactment," demonstrating in Mrs. Mills' kitchen the events which had transpired. The filmed reenactment of the killing of Mrs. Mills occurred the next day, October 1, 1975, in the victim's home in San Bernardino County. The statements and actions of defendant during the filming conformed substantially to the text of defendant's second interview previously recited.

Prior to trial, defense counsel objected to the introduction of the text of the first and second interviews, and of the filmed reenactment. The trial court, after a hearing, ruled that although the first interview was conducted in violation of Miranda v. Arizona, supra, 384...