People v. Russo

• Decision Date: 18 November 1983
• Docket Number: Cr. 23556
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jason John RUSSO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 466

196 Cal.Rptr. 466

148 Cal.App.3d 1172

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jason John RUSSO, Defendant and Appellant.

Cr. 23556.

Court of Appeal, First District, Division 5, California.

Nov. 18, 1983.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Cr. Div., William D. Stein, Asst. Atty. Gen., Ann K. Jensen, Clifford K. Thompson, Jr., Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Quin Denvir, State Public Defender, Neil Rosenbaum, Deputy State Public Defender, San Francisco, for defendant and appellant.

KING, Associate Justice.

In this case we hold that a waiver of Miranda rights is invalid when given by a suspect after being told by the police, as part of the reading of his Miranda rights, that if he did not commit the crime he did not need a lawyer.

Jason John Russo was charged with murder (Pen.Code, § 187) with use of a deadly weapon (Pen.Code, § 12022, subd. (b)). A jury found him guilty of second degree murder and found the use allegation to be true. We reverse the judgment.

The evidence at trial showed that on February 25, 1981, as part of a ruckus between two groups of young people, Russo stabbed Ronald Puterbaugh, who bled to death. At trial Russo's defense was diminished capacity based upon intoxication.

In early March of 1981, Santa Rosa Police Detective James Carlson received an anonymous tip that Russo had stabbed Puterbaugh. Carlson interviewed him on March 4. He again interviewed Russo on March 6, at the Santa Rosa police station, at which time Russo admitted being present when Puterbaugh was stabbed but said that he had taken no part in the incident. Russo also told Carlson he had consumed no alcohol that night. Stephanie Franco, Russo's girlfriend, testified at the preliminary hearing that Russo had drunk nothing alcoholic that night.

At trial Ms. Franco testified she saw Russo drink three regular glasses full of tequila before the stabbing occurred, and that he was drunk. She claimed that she had lied at the preliminary hearing to conceal Russo's drinking from her mother. Detective Carlson testified on behalf of the prosecution that Russo had told him during the March 6 interview that he had not been drinking that night.

Russo contends that his statement to Detective Carlson that he had not been drinking on the night of the homicide should have been excluded because it was the product of a violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. He argues that before making this statement he had invoked his right to counsel so that questioning should have ceased, and that his subsequent waiver of Miranda rights was not a knowing and intelligent waiver.

To fully consider these contentions, reference must be made to portions of the transcript of the recording of the March 6 interview.

It seems clear from the transcript of the interview that Detective Carlson, despite his denial at trial, must have indicated to Russo prior to the recording of the interview that Russo did not need a lawyer. At the very beginning of the interview when Detective Carlson first began to give Russo his rights, the transcript discloses the statement by Russo, "But you said I didn't need a lawyer." Detective Carlson then told Russo he wanted him to be aware of his rights and went on to say to Russo, "Okay, if you didn't do this, man, you got no, you got no problems. If you didn't do this, you don't need a lawyer, you know." Thereafter, when asked, having these rights in mind, whether he wished to talk to Carlson, Russo replied, "I don't know if I should have a lawyer here or what, ..." From the transcript, two issues are presented on appeal: first, whether Russo invoked his right to counsel when he said, "I don't know if I should have a lawyer here or what ...; " second, whether any waiver of Miranda rights was nullified by Carlson's prior statement that "If you didn't do this, you don't need a lawyer, you know."

At the outset, however, respondent raises two procedural issues. The first pertains to the applicable standard of review on appeal. Respondent contends that the degree of deference owed trial court findings as to the validity of a Miranda waiver is "ill-defined," and urges this court to defer to the trial court's specific finding that Carlson did not attempt to "soften up" Russo and that Russo's reference to a lawyer at the outset of his interrogation was not a request for counsel. The rule of deference, however, applies only to issues of fact where there is a conflict in the evidence. (E.g., People v. Duren (1973) 9 Cal.3d 218, 237, 107 Cal.Rptr. 157, 507 P.2d 1365.) Here the facts surrounding the March 6 interview are undisputed, as the interview was recorded. The consequent standard of review on appeal is well settled: "[T]his court must independently assess whether Russo knowingly and intelligently waived his rights. This degree of appellate scrutiny is required, since the facts in the record are essentially uncontradicted." (People v. Diaz (1983) 140 Cal.App.3d 813, 820, 189 Cal.Rptr. 784, citing People v. Jiminez (1978) 21 Cal.3d 595, 609, 147 Cal.Rptr. 172, 580 P.2d 672.)

The second procedural issue raised by respondent pertains to the standard of proof below as to the effectiveness of a Miranda waiver. The rule in California has been that the prosecutor must prove effectiveness of the waiver beyond a reasonable doubt. (People v. Jackson (1980) 28 Cal.3d 264, 168 Cal.Rptr. 603, 618 P.2d 149, cert den. (1980) 450 U.S. 1035; People v. Jiminez (1978) 21 Cal.3d 595, 147 Cal.Rptr. 172, 580 P.2d 672.) The federal rule is that voluntariness may be proved by a preponderance of the evidence. (Lego v. Twomey (1972) 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618.) We must apply the California rule since the stabbing took place prior to the effective date of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)). (See People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149.)

Russo contends that he invoked his right to counsel when he said, "I don't know if I should have a lawyer here or what ...." If he did, all questioning should have ceased until an attorney was present. (Edwards v. Arizona (1980) 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378.)

The court in Miranda held that if a defendant "indicates in any manner and at any state of the process that he wishes to consult with an attorney before speaking there can be no questioning." (384 U.S. at pp. 444-445, 86 S.Ct. at p. 1612; emphasis added.) This holding has been construed by California courts to mean that "a suspect may invoke his right to silence by any words or conduct reasonably inconsistent with a present willingness to discuss his case freely and completely." (People v. Duran (1983) 140 Cal.App.3d 485, 492, 189 Cal.Rptr. 595 (emphasis added), citing People v. Burton (1971) 6 Cal.3d 375, 382, 99 Cal.Rptr. 1, 491 P.2d 793.) Thus courts have found invocations of the right to counsel where suspects have stated "Do you think we need an attorney?" or "I guess we need a lawyer" (People v. Superior Court (Zolnay ) (1975) 15 Cal.3d 729, 736, 125 Cal.Rptr. 798, 542 P.2d 1390, cert. den. (1976) 429 U.S. 816, 97 S.Ct. 58, 50 L.Ed.2d 76), "Well, maybe I should talk to my attorney" (People v. Munoz (1978) 83 Cal.App.3d 993, 995, 148 Cal.Rptr. 165), and "Well then I think it's better that I have an attorney here" and "have you got an attorney right here present, close?" (People v. Duran, supra, 140 Cal.App.3d at pp. 490-492, 99 Cal.Rptr. 1, 491 P.2d 793.)

Respondent challenges the notion that any ambiguity surrounding the assertion of Miranda rights must be resolved in favor of the suspect, citing the holding in Taylor v. United States (D.C.App.1977) 380 A.2d 989, 994, that the trial court must evaluate...