People v. Morse

• Citation: 76 Cal.Rptr. 391,452 P.2d 607,70 Cal.2d 711
• Decision Date: 10 April 1969
• Docket Number: Cr. 8684
• Parties: , 452 P.2d 607 The PEOPLE, Plaintiff and Respondent, v. Joseph Bernard MORSE, Defendant and Appellant.
• Court: United States State Supreme Court (California)

Page 391

76 Cal.Rptr. 391

70 Cal.2d 711, 452 P.2d 607

The PEOPLE, Plaintiff and Respondent, v. Joseph Bernard MORSE, Defendant and Appellant.

Cr. 8684.

Supreme Court of California In Bank.

April 10, 1969.

Rehearing Denied May 8, 1969.

Joseph Bernard Morse, in pro. per., Frank L. Eddens, Jr., and Robert E. Rickles, Santa Ana, under appointment by the Supreme Court, and Heinly & Rickles, Santa Ana, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for plaintiff and respondent.

SULLIVAN, Justice.

A jury found defendant guilty of first degree murder (Pen.Code, §§ 187, 189) ¹ and fixed the penalty at death (§ 190). The trial judge denied defendant's motions for a new trial and for reduction of penalty. This appeal is automatic. (§ 1239, subd. (b).)

On August 6, 1964, a jury determined that defendant, who in 1962 had been found guilty of murdering his mother and sister, should suffer life imprisonment. On August 14, 1964, while defendant was confined in the San Diego County jail awaiting formal sentencing for these crimes, he garrotted Thomas Larry Taddei, another prisoner, with part of a mattress cover braided into a cord.

Both defendant and Taddei occupied separate cells in a cellblock on the fifth floor of the jail. Deputy Sheriff Murkerson, who was assigned to jail duty on the floor below, was delivering medicine to another inmate in the same cellblock as defendant when he found the victim lying outside defendant's cell with his head and neck suspended by a sort of woven rope attached to the bars. Defendant was in his cell. Murkerson called to defendant 'Cut him loose, Joe.' Defendant, standing in the center of the cell and looking at the jailer, shrugged his shoulders, lay down on the bunk behind him, and folded his hands behind his head. Murkerson went for help and returned shortly with two other officers and a trusty. One of the officers cut the cord which had been knotted at the back of the victim's neck and looped around and knotted behind a bar of defendant's cell. Murkerson noticed that the victim was pale and cold and that there was paper sticking out of his mouth. An attempt was made to revive Taddei. Finally it was determined that he was dead.

At the trial Murkerson testified on Voir dire outside the jury's presence that approximately two or three minutes after he had returned with help and while he and another officer were attempting to use artificial respiration on Taddei, he had a conversation with defendant. At this time the two officers were outside defendant's call and Murkerson was kneeling beside the victim and facing defendant's cell. The jailer looked up toward defendant, who was lying on his bunk, and asked 'Joe, did you do this?' Defendant nodded his head in the affirmative and said, 'Yeah.' The jailer then immediately asked, 'Why?' and defendant replied, 'The sonofabitch wouldn't pay his debts.' The jailer then asked, 'What did he owe you?' and defendant immediately answered, 'Cigarettes.' No further questions were asked at that time. At no time did Murkerson inform defendant of his right to counsel or of his absolute right to remain silent. Nor did defendant at any time request counsel or show any unwillingness to respond to the jailer's questions.

Testifying further on Voir dire as to his purpose in asking the above questions, Murkerson said, 'From my information, I was surprised to find something like this and was still kind of amazed over it all, and I was trying to find out what had happened just for my own benefit.' He further stated that he was not attempting by his questions to elicit an incriminating statement from defendant and that the thought of advising defendant of his rights did not occur to him at the time.

At the conclusion of the testimony on Voir dire the court ruled that the first two of the three questions and answers involved in the conversation should be admitted with the proper foundation as to voluntariness. The jailer then resumed his testimony in the presence of the jury and gave substantially the same account which had been elicited on Voir dire, except that his testimony regarding the conversation was limited as indicated by the court.

Defendant offered evidence at the trial on the issue of guilt and at the trial on the issue of penalty but did not take the stand on his own behalf at any time. Upon the return of the verdict of guilty, he personally withdrew, with the court's approval, his plea of not guilty by reason of insanity.

We first consider defendant's contention that his above statements to Deputy Sheriff Murkerson were secured in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution, that their admission in evidence was error under the rules announced in Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, and that such error is reversible per se because the statements constituted a confession. (People v. Schader (1965) 62 Cal.2d 716, 728 et seq., 44 Cal.Rptr. 193, 401 P.2d 665.)

We agree that the statements constitute a confession by defendant since it is obvious that they are a 'declaration of his intentional participation in a criminal act' (People v. Ferdinand (1924) 194 Cal. 555, 568--569, 229 P. 341, 346; People v. Fitzgerald (1961) 56 Cal.2d 855, 861, 17 Cal.Rptr. 129, 366 P.2d 481) and amount to a complete and express acknowledgment of the crime charged (3 Wigmore on Evidence (3d ed. 1940) § 821; McCormick on Evidence, p. 234). In fact, the first question and answer, viewed in their context, constitute in themselves a confession whose directness and clarity would be difficult to improve upon. Thus it is clear that reversal is here required if the statements were obtained in violation of defendant's constitutional rights. In our determination of this question we apply the standards set forth in Escobedo and Dorado rather than those set forth in Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 since the instant case was tried prior to June 13, 1966, the date of the Miranda decision. (People v. Rollins (1967) 65 Cal.2d 681, 685--691, 56 Cal.Rptr. 293, 423 P.2d 221.)

Following the decision of the United States Supreme Court in Escobedo, we held in Dorado 'that defendant's confession could not properly be introduced into evidence because (1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he had waived these rights.' (People v. Dorado, Supra, 62 Cal.2d 338, 353--354, 42 Cal.Rptr. 179, 398 P.2d 371.) In subsequent decisions we have repeatedly pointed out that the accusatory stage, or that stage when the suspect is entitled to counsel, has been reached when the investigation has begun to focus on the suspect, the suspect is in custody and the police have undertaken a process of interrogations that lends itself to eliciting incriminating statements. ² We have also made it clear on a number of occasions that any determination as to whether or not a process of interrogations was undertaken must rest upon an objective test according to which we 'analyze the total situation which envelops the questioning by considering such factors as the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances.' (People v. Stewart (1965) 62 Cal.2d 571, 579, 43 Cal.Rptr. 201, 206, 400 P.2d 97, 102, affd. sub nom. California v. Stewart (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.) ³

We have determined, after consideration of the instant case according to these factors and principles, that the accusatory stage of interrogation was not reached prior to or during the short conversation here at issue, and that therefore there was no requirement that defendant be advised of his constitutional rights. Though we intend no implication that the accusatory stage of interrogation cannot be reached in the absence of a team of skilled detectives engaged in a protracted process of questioning, neither is it to be assumed that any question put by any police officer to a person seriously suspected of crime must necessarily be prefaced by information or warnings as to constitutional rights. As we said in People v. Cotter (1965) 63 Cal.2d 386, 46 Cal.Rptr. 622, 405 P.2d 862, vacated on another ground in Cotter v. California (1967) 386 U.S. 274, 87 S.Ct. 1035, 18 L.Ed.2d 43, our decisions dealing with the right to counsel before trial 'were aimed at restraining law enforcement officers, once the accusatory stage has been reached, from the use of inquisitorial techniques in seeking to prove the charge against the accused out of his own mouth.' (63 Cal.2d at p. 393, 46 Cal.Rptr. at page 626, 405 P.2d at page 866.)

In the case before us, the conversational episode took place in a time period of perhaps a few seconds and in a setting devoid of 'inquisitorial techniques.' Murkerson, although a uniformed deputy sheriff, was in fact a jailer whose duties at the time were custodial, not investigative. He was not specifically assigned to defendant or to defendant's cell block, having been on duty on the floor below and having volunteered to bring medicine to another prisoner on the fifth floor. We note that here, while defendant was in custody in the general sense in which all prisoners are deemed to be in custody, he was not yet in custody for the particular offense. The general atmosphere of the setting discloses a preoccupation on the...