People v. Peevy

• Decision Date: 07 May 1998
• Docket Number: No. S056734,S056734
• Citation: 17 Cal.4th 1184,953 P.2d 1212,73 Cal.Rptr.2d 865
• Court: California Supreme Court
• Parties: , 953 P.2d 1212, 98 Cal. Daily Op. Serv. 3444, 98 Daily Journal D.A.R. 4763 The PEOPLE, Plaintiff and Respondent, v. Airreque PEEVY, Defendant and Appellant

Page 865

73 Cal.Rptr.2d 865

17 Cal.4th 1184, 953 P.2d 1212, 98 Cal. Daily Op. Serv. 3444,

98 Daily Journal D.A.R. 4763

The PEOPLE, Plaintiff and Respondent, v. Airreque PEEVY, Defendant and Appellant.

No. S056734.

Supreme Court of California

May 7, 1998.

Rehearing Denied June 24, 1998.

Alemayehu G. Mariam, under appointment by the Supreme Court, San Bernardino, for Defendant and Appellant.

Tuttle & Taylor, Mark A. Borenstein, Kate S. Gold, Dahni K. Tsuboi, Los Angeles, Barbara Bergman, Menlo Park, John T. Philipsbron, Charles D. Weisselberg, Los Angeles, Michael J. Brennan and Carrie L. Hempel as Amici Curiae on behalf of Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Keith I. Motley, Frederick R. Millar, Jr., William M. Wood and Sara Gros-Cloren, Deputy Attorneys General, for Plaintiff and Respondent.

Michael R. Capizzi, District Attorney (Orange), Wallace J. Wade, Assistant District Attorney, Kent S. Scheidegger and Charles L. Hobson, Sacramento, as Amici Curiae on behalf of Plaintiff and Respondent.

GEORGE, Chief Justice.

In order to protect the exercise of the privilege against self-incrimination, the United States Supreme Court has declared that persons subject to custodial interrogation must be informed of certain rights, including the right to counsel, and that once such a person invokes the right to counsel, the police must cease interrogation until counsel is provided or the suspect initiates further contact and makes it clear that he or she wishes to proceed without counsel. (Miranda v. Arizona (1966) 384 U.S. 436, 474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (Miranda ); Edwards v. Arizona (1981) 451 U.S. 477, 482, 484-485, 101 S.Ct. 1880, 1883, 1884-1885, 68 L.Ed.2d 378 (Edwards ); see also Rhode Island v. Innis (1980) 446 U.S. 291, 293, 100 S.Ct. 1682, 1686, 64 L.Ed.2d 297.)

The United States Supreme Court has decided that a statement taken in violation of these rules is inadmissible at trial in the prosecution's case-in-chief, but is admissible to impeach the defendant's credibility as a witness, so long as the statement otherwise is voluntary. (Harris v. New York (1971) 401 U.S. 222, 224, 226, 91 S.Ct. 643, 645, 646, 28 L.Ed.2d 1 (Harris ) [a statement taken without proper Miranda advisements may be admitted for impeachment purposes]; Oregon v. Hass (1975) 420 U.S. 714, 722, 95 S.Ct. 1215, 1220, 43 L.Ed.2d 570 [pursuant to the Harris rule, a statement taken after the police fail to honor the suspect's invocation of the right to counsel during interrogation is admissible for impeachment purposes].) Provisions of the California Constitution establish that statements taken in violation of Miranda are to be excluded from evidence in this state only to the extent required by the federal Constitution. (Cal. Const., art. I, § 28, subd. (d); People v. May (1988) 44 Cal.3d 309, 315, 243 Cal.Rptr. 369, 748 P.2d 307.) We are bound, therefore, to apply the rules established in Harris and its progeny.

The issue presented in this case is whether the Harris rule applies when a police officer conducting a custodial interrogation deliberately fails to honor a suspect's request for counsel, with the objective of securing evidence for impeachment purposes. We conclude that the Harris rule is applicable under these circumstances.

I

At 6:30 a.m. on January 30, 1995, Jack McBrayer collected the receipts from the Kentucky Fried Chicken restaurant he managed in Hesperia, intending to deposit them at a bank. As he entered his truck, he saw the image of two persons reflected in his side-view mirror, and observed that one of the persons was wearing a gorilla mask. McBrayer closed and locked the doors to his truck and turned on the ignition, observing that the person in the gorilla mask, later identified as Joshua Jenkins, as well the other man, later identified as defendant, Airreque Peevy, were attempting to open the doors of the truck. As McBrayer drove out of the parking lot, he saw Jenkins place a gun in the waistband of his trousers. Because his would-be assailants began to walk away from the scene and appeared to be stunned by the turn of events, McBrayer decided to give chase. He followed defendant until defendant reached his own vehicle and drove off with Jenkins as a passenger. Eventually, McBrayer abandoned the chase. He subsequently provided the police with descriptions of the two men and the license plate number of their vehicle. The police soon detained Jenkins and defendant, and McBrayer identified them. He also recognized Jenkins as an employee of the Kentucky Fried Chicken restaurant in Hesperia, noting that although Jenkins had a shaved head at the time of his arrest, he normally wore long hair. McBrayer also recalled that Jenkins had worked the previous evening, "Super Bowl Sunday," when the restaurant had unusually high receipts.

The police arrested defendant and Jenkins. A search of defendant's vehicle disclosed a gorilla mask, a pair of gloves, and a BB gun.

At the hearing on defendant's in limine motion to exclude evidence of statements he made to the police following his arrest, San Bernardino County Deputy Sheriff Douglas Combs testified that he had arrested defendant and advised him of his rights pursuant to Miranda at the Hesperia police station. Defendant responded to the Miranda advisements by stating that he did not wish to speak.

Thereafter defendant was taken to the office of Detective Dennis Henderson of the San Bernardino Sheriff's Department. Detective Henderson testified that he advised defendant of his rights pursuant to Miranda, and defendant responded that "I would rather have an attorney here." Henderson testified that: "I kept talking with him for impeachment purposes.... I just continued to talk about the crime." He explained that it was his understanding that "Impeachment is where the defendant gets up on the witness stand and starts telling the court he didn't do it. We can use this. The way I understand it is we can use it against him." Henderson testified that he knew he was violating the dictates of the Miranda decision when he continued to talk to defendant. The court sustained the prosecutor's objection to defense counsel's question whether Henderson knew he was violating the law. The court explained that it considered the officer's subjective thought processes to be irrelevant.

Henderson further testified that, in the conversation following defendant's request for counsel, Henderson asked defendant why he was at the Kentucky Fried Chicken restaurant in Hesperia. Defendant replied that he knew they were there for the money. Henderson's interrogation lasted only 10 minutes and took place inside Henderson's office at the police station, and Henderson remained 3 feet away from defendant during the interrogation. The officer spoke in a conversational tone, did not use threats or promises, and did not indicate to defendant that his statements could not be used against him at trial.

Deputy Combs testified that he also was present during this interview. He was aware that detective Henderson was interviewing defendant for "impeachment purposes."

At the conclusion of this interview, Combs transported defendant to the Victorville jail. During this trip, defendant stated that Jenkins had been involved. Combs reminded defendant that he had refused to speak about the case earlier, and stated he would read him his Miranda rights again. Defendant said he understood his rights and wished to talk. He stated that he had been contacted by Jenkins, that Jenkins told him the manager of the Kentucky Fried Chicken restaurant was giving Jenkins and other employees a hard time, and that Jenkins had solicited defendant's assistance.

The trial court determined that the police had interrogated defendant in deliberate violation of his rights under Miranda. The court found that when Detective Henderson continued to question defendant despite his invocation of the right to counsel, this circumstance did not render defendant's statement to Henderson involuntary. Accordingly, the court ruled that the statement could be used for impeachment purposes. The court found, however, that the subsequent interrogation, in which defendant was informed of his Miranda rights for the third time, was "abusive," and the court prohibited the use, for any purpose, of defendant's statements to Deputy Combs after the third Miranda advisement.

At trial, in addition to the testimony provided by McBrayer regarding the circumstances of the crime, one Lewis Calandrino, an acquaintance of both defendant and Jenkins, testified for the prosecution that he had seen both men in possession of a gun similar to the one found in defendant's vehicle. Calandrino also stated that defendant had telephoned him after being arrested. When Calandrino chided defendant, stating that he was too smart to have been involved in the incident, defendant responded that he was supposed to have been only the driver.

Defendant testified in his own defense, claiming that Jenkins, a juvenile with whom he barely was acquainted, had asked him to participate in frightening McBrayer in revenge for McBrayer's poor treatment of the restaurant's employees. Defendant testified that there had been no plan to rob McBrayer. Defendant testified that he had feigned willingness to participate in the attempt to frighten McBrayer, because defendant desired to have revenge upon Jenkins by leaving Jenkins "in the lurch" at the scene. Defendant testified that he and Jenkins hid in the bushes outside the Kentucky Fried Chicken restaurant, and that when Jenkins emerged and accosted McBrayer, defendant turned and headed toward his own vehicle. Defendant denied telling investigating officers that he knew he was at the Kentucky Fried Chicken restaurant parking lot with Jenkins "for the money."

In rebuttal, Detective Henderson testified that he int...