People v. Terry

• Decision Date: 10 March 1966
• Docket Number: Cr. 10308
• Citation: 240 Cal.App.2d 681,50 Cal.Rptr. 120
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of Callfornia, Plaintiff and Respondent, v. Willie Floyd TERRY, Defendant and Appellant.

Page 120

50 Cal.Rptr. 120

240 Cal.App.2d 681

The PEOPLE of the State of Callfornia, Plaintiff and Respondent, v. Willie Floyd TERRY, Defendant and Appellant.

Cr. 10308.

District Court of Appeal, Second District,

Division 2, California.

March 10, 1966.

Hearing Denied May 4, 1966.

Herbert E. Selwyn, ^* Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Leslie F. Bell, Deputy Atty. Gen., for respondent.

ROTH, Presiding Justice.

On September 9, 1963 at approximately 3:00 a.m. California Warehouse Company in Los Angeles was burglarized. When the burglar entered, the automatic discharge of a silent alarm system alerted a private dispatching service, which in turn forthwith notified the police. An immediate police broadcast to officers in the area of the warehouse gave the address and the time of the alarm, plus a description of the clothing worn by the burglar. The source of the description was one Phillip Shafer, an eye witness, who was unloading a truck in the vicinity of the warehouse. Shafer at the trial identified appellant as the man he had seen emerging from an open window in the warehouse at the time of the burglary. Shafer's identification was based entirely upon the clothing of the burglar.

A few minutes after receiving the call, two police vehicles, each containing two officers, noticed appellant whose clothing matched the broadcast description, running a few blocks from the warehouse. Both cars simultaneously converged on appellant. He was stopped and his hands were handcuffed behind his back. He remained in this position until his incarceration at the police station some time later.

Appellant was searched and questioned at the scene of the arrest for approximately 10 or 15 minutes. The questions are not revealed in detail. The police stated that they asked him about the ownership of a flashlight he had in his possession and the whereabouts of some gloves they suspected had been used in the burglary. Appellant testified that he was questioned extensively about his reasons for being in that neighborhood at that time of night, and his implication in the burglary of the Warehouse. ¹

Appellant was then transported to the warehouse in a police car and interrogated further. Officer Silviano Gurrola of the Los Angeles Police Department testified that appellant did not volunteer any information, and that all statements made by appellant were in response to questions directed to him by the police. Officer Gurrola's testimony concerning this interrogation was as follows:

'Q Do you recall the first question and answer (after arriving at the scene of the crime), or at least to the best of your ability? A At the warehouse? Q Yes. A Yes, we asked him how he got into the warehouse. Q What did he say? A He said he had gotten in through the window, the one he came out of.'

Officer Gurrola then investigated the premises to verify this story. The testimony continues:

'A I went back (to the police vehicle) and said he couldn't have gotten in through that window, there wasn't a set of boxes there that he claimed he had taken * * * and threw out the window. Q You heard him say something about boxes, did you? A Yes, he said he had taken some boxes off of a flat and had thrown them out the window * * *.' ²

Officer Martin participated in the interrogation and testified as follows:

'Q To the best of your ability to do so, would you tell us what questions were put to him and what answers he gave? A I asked the defendant how he got into the warehouse on Wholesale Street and his first response was that he got in through the window, he got in the same way he got out, through the same window. * * * And Officer Gurrola got out of the car and checked the front window and came back to the car and stated to me that he didn't get in that way. Q Was this in the presence of the defendant? A That is right. Q Then what happened? A I questioned the defendant more about it and at this time he stated that he got in through a rear window.

'* * *.'

Officer Martin further testified that under interrogation, the defendant described to the police how he obtained entry to the building and his reasons for burglarizing the warehouse.

The cause was tried to a jury, and appellant was found guilty of burglary in the second degree (Pen.Code, § 459) with five prior felony convictions. Appellant's appeal is from the judgment of conviction and based solely on People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361.

Appellant argues that the evidence of his statements to the police obtained during the interrogation at the warehouse, which constituted a full confession, was illegally admitted and therefore a reversal is required under People v. Dorado, supra, at p. 356, 42 Cal.Rptr. 169, 398 P.2d 361.

Dorado, of course, establishes the rule that statements of a defendant made to the police are inadmissible where (1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on the 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 remain silent, and no evidence establishes that he has waived those rights. (People v. Dorado, 62 Cal.2d 338, 347, 42 Cal.Rptr. 169, 398 P.2d 361.)

It is settled that when the record is silent we must presume that appellant was not informed of his rights to counsel and to remain silent. (People v. Stewart, 62 Cal.2d 571, 581, 43 Cal.Rptr. 201, 400 P.2d 97.) Respondent argues, however, that the interrogations herein detailed were during the investigatory stage, and therefore, the police were under no duty to inform appellant of his constitutional rights.

The principal question in this case is whether the accusatory stage had been reached. We think it had.

Stewart, supra, holds that the second and third factors listed in Dorado (People v. Stewart, supra, at p. 577, 43 Cal.Rptr. 201, 400 P.2d 97) are the test. To the same effect see also People v. Mathis, 63 A.C. 434, 449--450, 46 Cal.Rptr. 785, 406 P.2d 65.) We must decide, therefore, whether appellant (1) was under arrest, and (2) whether a process of interrogations had been undertaken that lent itself to eliciting incriminating statements. 'Whenever the two conditions are met, * * * the accusatory or critical stage has been reached and the suspect is entitled to counsel.' (People v. Stewart, supra, at p. 577, 43 Cal.Rptr. at p. 204, 400 P.2d at p. 100.)

At the time of the interrogation in question, appellant had been physically restrained with handcuffs, interrogated for a substantial period of time, and (presumably unwillingly) transported from the scene of the detention to the site where the crime was committed. Such a restraint goes far beyond temporary detention for the purpose of making inquiries; (People v. Anguiano, 198 Cal.App.2d 426, 429, 18 Cal.Rptr. 132; People v. Morris, 211 Cal.App.2d 274, 278, 27 Cal.Rptr. 129) and constitutes an arrest. (Pen.Code, §§ 834, 835; People v. Gibson, 220 Cal.App.2d 15, 21, 33 Cal.rptr. 775.)

In ascertaining whether a process of interrogation had begun we must '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, supra, 62 Cal.2d at p. 579, 43 Cal.Rptr. at p. 206, 400 P.2d at p. 102.)

Here, the length of the crucial interrogation at the warehouse is not revealed, but the record does show that appellant had already been questioned for 10 or 15 minutes at the time of the arrest. The interrogation at the time of the arrest shortly after the crime had been committed, and before the police had time to acquire much data relevant to its commission, may be classed as investigatory. However, when appellant was taken from the point of arrest to the warehouse and there confronted with the type of questions of which we have made a verbatim excerpt, the accusatory stage had been reached. That this is so, is demonstrated by the nature of the questions which show on their face that they were designed to elicit a confession or incriminating statements. When the parties arrived at the warehouse, the police were no longer merely inquiring whether appellant might have committed the crime; they were asking him Why he did it, and in what manner. The questions assumed appellant was the burglar, and each response carried with it an implicit confession of guilt. In addition, the police themselves admitted that appellant's statements were made only in answer to questions posed by the police, and that the accused volunteered nothing. Objectively, therefore, the facts impel us to the conclusion that a process of interrogation was carried on that lent itself to eliciting incriminating statements.

Moreover, since such a process of interrogation is normally conducted after arrest (People v. Stewart, supra, 62 Cal.2d at p. 577, 43 Cal.Rptr. 201, 400 P.2d 97), the courts will presume that fact, and the burden is on the prosecution to negate it. (People v. Stockman, 63 A.C. 519, 523, 47 CalRptr. 365, 407 P.2d 277.) In the instant case, the prosecution has failed to sustain that burden.

People v. Ford, 234 Cal.App.2d 480, 44 Cal.Rptr. 556, relied on by respondent, does not hold to the contrary. In Ford, the police found the defendant in a vehicle reported as stolen. In a brief conversation prior to arrest, the defendant was able to give the name, but not the address, of the registered owner of the car. He was then arrested and subjected to an interrogation which resulted in some incriminating statements. The court said: 'Although Ford was under arrest on suspicion of car theft, there is nothing to suggest the arresting officers were conducting ...