Opinion
F070431
01-11-2017
THE PEOPLE, Plaintiff and Respondent, v. JERRY LEE WHITE, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Larenda R. Delaini and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F09900106)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Judge. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Larenda R. Delaini and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
On September 7, 2007, appellant/defendant Jerry Lee White fatally stabbed Christopher Westrick (Westrick) in the heart. Defendant had been diagnosed with schizophrenia since he was an adolescent. Westrick was the house manager of a sober-living residence where defendant was living. The murder occurred at the residence, shortly after defendant argued with Westrick about whether defendant could cook french fries in the kitchen. Defendant was arrested almost immediately after the murder.
Defendant was charged with murder (Pen. Code, §187, subd. (a)) with the special allegation that he personally used a deadly weapon, a knife (§ 12022, subd. (b)(1)). He pleaded not guilty and not guilty by reason of insanity.
All further statutory citations are to the Penal Code unless otherwise indicated.
As we will discuss, post, Fresno Police Detective Mark Yee interviewed defendant at the police department just a few hours after the murder. Yee advised him of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 486 (Miranda). Defendant answered questions about the stabbing and made incriminating statements. During the lengthy pretrial proceedings, however, the court found defendant's postarrest statements to Detective Yee were not coerced, but held the evidence was inadmissible in the prosecution's case-in-chief at the guilt phase because defendant was unable to give a knowing and intelligent waiver of his constitutional rights based on his mental state at the time of the interview.
At the guilt phase, defendant did not testify, and neither party sought to introduce any evidence about his postarrest statements. Defendant was convicted of second degree murder and the special allegation was found true.
Thereafter, the sanity phase was held before the same jury. Defendant again did not testify and neither party sought to introduce his postarrest statements. During deliberations, the jury advised the court that it was deadlocked and unable to reach a verdict. The court declared a mistrial as to the sanity phase and excused the first jury.
A second jury was impaneled and the sanity phase was completely retried. Defendant did not testify. The same witnesses testified with one exception: defense counsel called Detective Yee, who testified that it was apparent defendant showed mental health problems at the time of the interview. Thereafter, the prosecutor asked Yee about further details of the interview, including defendant's demeanor, whether he said anything about delusions, and what he said about the murder; defense counsel repeatedly objected to these questions. The court sustained defense counsel's objections as to defendant's statements about the murder, but overruled the other objections.
The second jury found defendant was legally sane. Defendant was sentenced to 15 years to life for second degree murder, plus one year for the personal use enhancement.
On appeal, defendant does not challenge his conviction for second degree murder, or argue there is insufficient evidence to support the jury's sanity verdict. Instead, defendant's appeal asserts the court abused its discretion when it overruled his objections at the second sanity trial, and allowed the prosecution to question Detective Yee about the statements he made at the postarrest interview, which were obtained in violation of Miranda. Defendant also contends defense counsel was prejudicially ineffective, to the extent that she failed to raise the proper objections, and for calling Detective Yee as a witness at the second sanity trial. Defendant contends the errors by the court and his attorney were prejudicial and affected the sanity verdict since evidence of his postarrest statements were not introduced at the first sanity trial, which resulted in a mistrial.
The People reply that defendant never moved to exclude evidence of Detective Yee's interview and/or his postarrest statements from the sanity phase, that such evidence was admissible, and any error is necessarily harmless. The People have not filed an appeal to challenge the court's finding that his postarrest statements were obtained in violation of Miranda.
In part I, post, we will review the facts of the murder, which are not in dispute. In part II, post, we will address the evidence that was introduced at the second sanity trial. In part III, post, we will review defendant's postarrest statements, the court's decision to exclude those statements, and how that evidence was introduced at the second sanity trial.
While the court may have improperly permitted Detective Yee to testify about certain details regarding defendant's postarrest interview, the error is not prejudicial given the nature of the evidence introduced at the second sanity trial.
FACTUAL AND PROCEDUAL HISTORY
PART I —THE MURDER
When a defendant joins a plea of not guilty with one of not guilty by reason of insanity, the issues of guilt and sanity are bifurcated and tried separately. The defendant must be tried first as to guilt. (People v. Hernandez (2000) 22 Cal.4th 512, 522 (Hernandez); People v. Elmore (2014) 59 Cal.4th 121, 141.)
We begin with the facts of the murder, which are not in dispute. The following evidence was adduced at the guilt phase.
Defendant was one of the residents in a sober-living home on East Fountain Way, near the intersection of Palm and Shields in Fresno. Bruce Kautzman (Kautzman) and Bruce Greiman (Greiman) were also residents.
Westrick lived in the residence and acted as the informal house manager. Another sober-living facility was located in an adjacent residence; James Smith was the house manager of that facility.
The people who lived in the homes had "dual diagnosis" with drug, alcohol, and mental health problems, and were on probation or parole. It was not a structured or locked facility, and the residents were free to leave.
Defendant was considered a problem resident because he had mental health problems; he did not take his medication; he refused to take showers; he smelled; and he kept to himself. When other residents repeatedly asked defendant to bathe, defendant became angry and said he could do whatever he wanted.
The residents described Westrick as a friendly, easy going person who treated everyone with respect. Defendant was not treated badly by Westrick or the other residents. On one occasion, however, one of the residents sprayed defendant with a garden hose because he wouldn't bathe, and later claimed it was an accident.
The Stabbing
Sometime after 4:00 p.m. on September 7, 2007, Westrick was in the kitchen with defendant. Kautzman and Greiman were in the house and heard the following exchange. Defendant said he was hungry and wanted to cook French fries. Westrick told him to wait because he was about to start dinner. Westrick said he was uncomfortable with defendant cooking because he previously left something on the stove.
Westrick and defendant argued whether he could use oil or butter. Defendant screamed, " 'F**k you, f**k you.' "
Westrick staggered into the living room. Westrick was holding his chest and bleeding profusely. He told Greiman and Kautzman that defendant had just stabbed him. Westrick was trying to reach for the telephone and fell on the couch.
Defendant left the house. Kautzman called 911 and reported the stabbing and tried to comfort Westrick.
Defendant Threatens Another Resident
As they waited for the police, Kautzman told Greiman to go next door and get help from the house manager at the adjacent facility. Greiman went through the front door and saw defendant standing outside. Defendant told him: " 'If you take one more step I'll stab you.' " Greiman avoided defendant and ran next door for help.
Greiman went into the adjacent house and told James Smith, the manager, and Fernando Valero, a resident, that defendant had just stabbed and "killed" Westrick.
Smith ran outside and saw Westrick emerge from the house. Westrick was still bleeding profusely, and blood was shooting out of his chest and into the air. Westrick spun around and collapsed in the front yard.
Smith testified that defendant walked past Westrick, who was lying on the ground. Smith testified defendant "[k]ind of" looked at Westrick. Defendant was holding the knife. He did not have any expression on his face. Defendant did not acknowledge Smith.
Defendant Threatens Another Person
Greiman testified defendant stood in the driveway for a few moments, ran across the street, stopped in the middle of the street to wait for cars to pass, and then went to a bus stop. Defendant had often hung out at that bus stop for hours on previous occasions.
Smith testified he followed defendant as he walked across the street and went to the bus stop. Smith called 911 and described defendant's whereabouts to the operator. Defendant was still holding the knife. As Smith approached defendant, he heard defendant "chanting a couple of things." Smith told defendant he was not going anywhere and might as well wait. Defendant replied, " 'Motherf**ker, I'll stab you, too. I just want you guys to leave me alone.' "
Apprehension of Defendant
Smith testified that the police cars arrived in the area. Defendant acted like he was going to put the knife in his pocket. Defendant hesitated and then threw the knife in a garbage can by the bus stop.
Fresno Police Officer Dalbec responded to the dispatch that the stabbing suspect was at the bus stop. Dalbec arrived at the scene and saw defendant standing near the bus stop. Someone was yelling and pointing to defendant, saying "that was him." Another person yelled that the knife was in the trash can.
Officer Dalbec approached defendant and ordered him to step away from the trash can. Defendant complied. Dalbec found a kitchen knife on the rim of the trash can. Dalbec seized the knife and placed defendant in handcuffs.
It was stipulated that there was no blood or fingerprints on the knife.
The Victim's Fatal Wound
Emergency personnel responded to the house, but Westrick died at the scene.
The pathologist testified that Westrick died from a single knife wound that went into the front left side of his chest, toward the back, on a direct horizontal plane. The knife went through the chest wall, penetrated the heart, and went into the left ventricle. It did not go all the way through the heart. Defendant had pulled the knife out of the body. Westrick suffered extensive internal and external bleeding, which caused his left lung to collapse. Westrick did not have any defensive injuries to indicate that he fought with defendant. There were no signs of a struggle in the kitchen aside from the blood evidence.
The pathologist determined there was a low level of an inactive metabolite in Westrick's system that indicated he had used cocaine within the previous 24 to 48 hours; there was no evidence of an active amount of cocaine in his blood, and he was not under the influence of cocaine when he died.
DEFENSE EVIDENCE
Roy Martin testified he was at the bus stop when defendant appeared. Defendant was holding a knife. Martin heard the police cars. Martin told defendant to put down the knife before the police arrived, or they might shoot him and also hit Martin. Martin testified defendant was scared and put the knife on the garbage can. Defendant walked away. He was talking and mumbling to himself. Martin only heard the word "butter."
Mark Duarte
Mark Duarte was a licensed clinical social worker, worked for both the county and state mental health departments, and had many interactions with defendant since 1975. Duarte testified at both the guilt and sanity phases.
At the guilt phase, Duarte testified that defendant was a patient in the acute psychiatric unit where Duarte was working in March 1981. Duarte offered defendant a cigarette. Defendant said, " '[G]et the skins off me.' " Without provocation, defendant punched Duarte in the face with his fist, and hit him so hard that he broke Duarte cheek bone. Duarte required surgery to repair the injury. Duarte later learned that defendant wanted to return to Atascadero State Hospital, and he had been placed in the acute unit because he threatened to harm the staff. Duarte believed defendant did not intend to harm him personally, but his actions were primitive and Duarte was in the wrong place at the wrong time. Duarte did not press charges against defendant because he believed he was insane at the time.
Dr. Howsepian
Dr. Avak Howsepian also testified as an expert in forensic psychiatry at both the guilt and sanity phases.
At the guilt phase, the People must prove all the elements of the charged offense, including mens rea, beyond a reasonable doubt. The defense cannot claim insanity at the guilt phase. (People v. Mills (2012) 55 Cal.4th 663, 671-672 (Mills).) However, the defense may introduce lay or expert testimony to rebut the prosecution's showing of the required mental state. (Id. at p. 672; Hernandez, supra, 22 Cal.4th at p. 520.) Evidence of a mental disease, defect, or disorder is admissible "solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.' [Citations.]" (Mills, supra, 55 Cal.4th at p. 671.) At the guilt phase, the defense relied on Dr. Howsepian's testimony to argue that defendant did not form the intent to kill the victim. The jury rejected this theory and convicted defendant of second degree murder. Dr. Howsepian also testified at the sanity phase, and we will fully address his testimony in part II, post.
At the guilt phase, Dr. Howsepian testified that defendant had been diagnosed as schizophrenic, and he was 12 years old when he was first hospitalized for the disorder. Defendant was unable to continue with his basic education from that time. He never held a job; he lived in care facilities or halfway houses; and he had been hospitalized 50 times. Defendant did well when medicated and his needs were met. He did poorly when he did not take his medication, or avoided treatment and supervision. Defendant was in a "feral" state when he was not medicated. He operated on a primitive level and in a survival mode, and he was dangerous to others. He could not understand or learn because he could not connect the past, present, and the future.
Dr. Howsepian interviewed defendant for this case on October 8, 2008, one year after the murder. Defendant repeatedly denied that he was mentally ill. Dr. Howsepian testified defendant suffered from symptoms of disorganized speech and behavior, delusions of misidentification, paranoia, and grandeur. He responded to things in his environment as if he were experiencing auditory hallucinations, but he did not claim to hear voices.
Defendant suffered from certain types of delusions, which were exceedingly unusual, and Dr. Howsepian had never read about or experienced anyone faking these types of delusions. Defendant believed people had hurt and even "killed" him in the past. Defendant believed he had been murdered and brought back to life; he was poisoned and in a coma for three years, and came back to life; and he was beaten by care providers and parole officers. He had delusions of grandeur and believed he built a space station, authored books, appeared in movies, and had theories about how people tried to steal from him.
Procedural History
On February 27, 2009, the information was filed which charged defendant with the murder of Westrick, with the special allegation that he personally used a deadly weapon, a knife. As explained above, he pleaded not guilty and not guilty by reason of insanity.
On August 5, 2010, the court declared a doubt as to defendant's competency to stand trial, suspended proceedings, ordered an evaluation pursuant to section 1368, and appointed experts to examine defendant. On September 23, 2010, the court appointed an additional expert to examine defendant.
On October 21, 2010, the court reviewed the experts' report, found defendant was competent to stand trial, and reinstated criminal proceedings. The record indicates that defendant remained at Atascadero State Hospital during the lengthy pretrial phase in order to maintain his competency.
The Jury's Verdict in the Guilt Phase
On April 25, 2013, defendant's jury trial began in the guilt phase. On May 7, 2013, defendant was convicted of second degree murder with the personal use of a deadly weapon.
PART II
THE SANITY PHASE
Procedural History of the Sanity Trials
If the defendant is found guilty of the charged offense, the trial then continues to the sanity phase. (Mills, supra, 55 Cal.4th at p. 671.) A finding that the defendant has the required mental state and is guilty of the charged offense does not foreclose a subsequent finding of insanity. (Hernandez, supra, 22 Cal.4th at p. 520.)
On May 8, 2013, defendant's trial began on the sanity phase before the same jury that heard the guilt phase. On May 14, 2013, the court found the jury was deadlocked. The jury had deliberated for four days, asked numerous questions, and taken five ballots. It was split 11 to 1 on the third day, and split 9 to 3 on the fourth day. The court declared a mistrial and excused the jury.
On September 2, 2014, the second sanity trial began with the selection of a new jury.
Legal Standard for Insanity
"Insanity, under California law, means that at the time the offense was committed, the defendant was incapable of knowing or understanding the nature of his act or of distinguishing right from wrong. [Citations.]" (Hernandez, supra, 22 Cal.4th at pp. 520-521; Mills, supra, 55 Cal.4th at p. 671; People v. Elmore, supra, 59 Cal.4th at p. 140.) " '[T]he issue at the insanity trial is not whether in fact the defendant has committed the act but whether or not he should be punished.' [Citation.]" (Hernandez, supra, 22 Cal.4th at p. 522.) The defendant may suffer from a diagnosable mental illness without being legally insane. (Mills, supra, 55 Cal.4th at p. 672.)
The defendant has the burden to prove by a preponderance of the evidence that he was insane at the time of the offense. (Hernandez, supra, 22 Cal.4th at p. 521; Mills, supra, 55 Cal.4th at p. 672.)
" 'If [a] mental illness is manifested in delusions which render the individual incapable either of knowing the nature and character of his act, or of understanding that it is wrong, he [or she] is legally insane' " under California law. (People v. Blakely (2014) 230 Cal.App.4th 771, 776.) Thus, the question for the jury in defendant's sanity trial was whether, based on a mental disease or defect, "he was incapable of: (1) knowing or understanding the nature and quality of his acts or (2) distinguishing right from wrong" when he murdered Westrick. (Id. at p. 779.)
The following evidence was introduced at the second sanity trial.
DEFENSE EVIDENCE
In contrast to the guilt phase, the defendant begins the presentation of evidence at the sanity trial since he has the burden of proving he was insane at the time of the offense. (Hernandez, supra, 22 Cal.4th at p. 521; Mills, supra, 55 Cal.4th at p. 672.)
Roy Martin
Roy Martin (Martin) repeated his testimony from the guilt phase: He was sitting at the bus stop when defendant walked across the street from his house. Defendant mumbled something about "butter." James Smith, one of the house managers, followed defendant across the street. Smith yelled at defendant "very rudely" to stay where he was and drop the knife. Defendant looked "really confused, not knowing what was going on, because everybody was yelling at him."
Martin heard the police sirens coming closer. Martin told defendant that he better put down the knife. Defendant just stood there and kept talking to himself. Martin again told defendant he better put down the knife because " '[t]hey're going to shoot you.' " Defendant walked to a garbage can and put the knife on it. A police officer arrived, and defendant complied with his instructions and did not try to get away.
Martin testified he did not see defendant act as if he was not following what was happening in the world. Defendant did not say anything about aliens in his head.
Mark Duarte
Mark Duarte (Duarte) testified in greater detail about his interactions with defendant, which began in the 1970s, when defendant was in various psychiatric placements where Duarte worked. Duarte had conducted numerous evaluations of defendant for treatment, conservatorships and as a result of court referrals.
Duarte testified defendant had "true schizophrenia" and had been diagnosed since he was an adolescent. Defendant's condition was "a fragmentation of his cognition of his ability to think. He can't really trust his mind. And if you can't trust your own mind, it's very hard to trust the world." "He's auditorily hallucinating most of the time. His ability to modulate his emotions is always tinged with this mental illness. It is a chronic condition. It is not something that he wills to happen or not to happen. It's constant. And it's an affliction. His ability to cope at best is primitive. I've seen him on conservatorship and off of conservatorship. He does best with structure." "His ability to function mainstream is grossly impaired. He has a tendency and his pattern is to isolate, be withdrawn. He's suspicious all the time. He has some family contacts, but they're infrequent."
Duarte testified defendant would suffer from schizophrenia for the rest of his life. He considered defendant to be "very dangerous" unless he took his medication and he was in a controlled and structured setting. Defendant often refused to take his medication because he did not like how it felt, and had told Duarte that he did not need it. Defendant was "under control" when he was in a structured environment and taking medication, and protected from stress and external stimuli. In those situations, defendant had said that he did not need to take medication anymore because he was functionally well.
Duarte repeated his testimony from the guilt phase about the incident in 1981 when defendant violently attacked him without provocation. Duarte learned that he could have been killed if defendant hit him an inch higher on the temple. Duarte did not consider defendant a criminal for what he did because he knew defendant's mental health history for schizophrenia. At the time of the incident, defendant had a pattern of becoming psychotic and lashing out when he did not take his medication.
Duarte knew that defendant had committed other violent crimes. In the 1990s, Duarte evaluated defendant and recommended that he plead not guilty by reason of insanity in a criminal case to ensure that he get "a lifetime continuity of care." Defendant refused to make the plea because he did not want to be locked up for a long time.
Duarte believed that defendant was in an out-patient treatment program with Fresno County Mental Health Department in 2007. Duarte evaluated defendant after he was arrested in this case, and recommended that he be sent to Atascadero State Hospital because he needed lifetime care.
Larry Benton
Larry Benton operated a transitional home in Fresno. Defendant lived there when he was on parole, and immediately before he moved into the home where the murder occurred. Benton testified defendant was a "pretty calm guy," but he said and did strange things that created problems in the household. Defendant started to believe that he owned and ran Benton's house. Defendant called the police several times and reported that Benton was trying to take "his house from him." As a result of these incidents, Benton talked to defendant's clinician and parole agent, and they decided to move him to another place to prevent the situation from "getting out of hand." Benton believed defendant moved to the East Fountain Way residence.
Bruce Welch
Bruce Welch (Welch) was a nurse at the Fresno County Jail, and evaluated arrestees as to whether they should be accepted into the jail population or needed to be referred for a psychiatric hold pursuant to Welfare and Institutions Code section 5150. Welch testified that an arrestee would not be accepted into the jail if he was incoherent or a danger to himself or others because he was gravely disabled.
Welch evaluated defendant when he was taken into custody after being arrested for killing Westrick. Welch did not know about defendant's psychiatric history when he initially evaluated him. Welch determined defendant's "insight at that particular time to me appeared poor." Defendant was "disorganized in his thoughts, incoherent, very guarded and suspicious, and he was refusing to take medication that was being offered to help clear up his mind." Welch accepted defendant for booking into the jail and did not recommend sending him to the hospital on a 72-hour psychiatric hold.
Angeline White
Angeline White was defendant's sister. There were 11 siblings in the family, they were very poor, and they did not have adequate food or clothing. Their parents often fought. Their mother was mean and cruel to the children and often beat them. Their mother had once pulled a gun on their father, and she also chased one of the siblings with a gun. Defendant was a "good kid" until an incident happened at school when he was 12 years old. Defendant was sent away until he was 16 years old. He returned home, but he never went back to school. He was "in and out of the system" and the county hospital's psychiatric ward. When he was on his own, he received a disability check and trusted everyone. He gave money to drug addicts and did not realize it. When defendant was pushed, he went "over the edge." White believed their mother once acted as defendant's conservator, but he was in his hospital for years at a time. She tried to check on him to make sure he was not on the streets, and she knew he could not take care of himself.
Clint Yarbrough
Clint Yarbrough (Yarbrough) was a deputy public guardian with Fresno County and testified about defendant's records with the Department of Behavioral Health. Defendant was diagnosed with schizophrenia paranoid type, and he had an extensive history of psychiatric hospitalizations. In 1968, defendant was admitted to Napa State Hospital after drawing a knife and threatening to kill a female classmate. He stayed at the hospital until 1969.
In the 1970s, defendant received outpatient support through the Department of Behavioral Health and placed on a conservatorship from 1974 to 1975. During that time, he was observed to be hostile to young children by slapping and kicking them; he repeatedly assaulted his sisters; he physically assaulted his mother; and he experienced auditory hallucinations, paranoia, delusions, command auditory hallucinations to kill himself, and suicidal and homicidal ideations.
In 1980, defendant set fire to the Fresno Care and Guidance Center. In 1981, he attacked a social worker (Duarte) and broke his cheek bone. In 1989, defendant was placed on a psychiatric hold for destroying his residence and not eating.
In 1993, defendant started a fire in his room at the Regina Hotel, assaulted the hotel manager with a steel rod, and fractured the manager's skull.
In 1998, defendant threatened his roommate with a knife and was aggressive to other housemates.
As of 1999, there had been at least 11 occasions when defendant had been placed on a 72-hour psychiatric hold pursuant to Welfare and Institutions Code section 5150. These incidents usually occurred because of his failure to take his medications when he was on his own.
Yarbrough testified that defendant's family members specifically asked the department not to give their addresses to defendant because they were afraid of him, and they did not want him to know where they lived.
The defense also introduced evidence that a psychiatrist prepared declarations in support of a temporary conservatorship for defendant in August 1999, based on his grave disability from his mental illness.
Dr. Robert Taylor
Dr. Robert Taylor, a clinical psychologist, conducted a court-ordered evaluation of defendant for this case. Dr. Taylor reviewed defendant's records from the state hospitals, psychiatric reports, and police reports. He interviewed defendant for about one hour in December 2010, three years after the murder. Defendant consented and cooperated with the interview. At the time of the interview, defendant had been in Atascadero where he received psychiatric treatment. Defendant was not "particularly verbose" and gave single and multiple word answers.
Dr. Taylor had no doubt that defendant had been schizophrenic since he was a teenager. Dr. Taylor testified that in his opinion, defendant did not understand the quality of his actions due to a paranoid delusion, and he was not able to differentiate right from wrong at the time of the homicide. Dr. Taylor conceded that everyone with a mental illness was not legally insane.
Defendant's statements about the murder
On cross-examination, the prosecutor asked Dr. Taylor if he questioned defendant about the murder. Dr. Taylor testified from his contemporaneous notes, where he recorded his questions and defendant's answers about the murder.
Dr. Taylor's testimony was based on the statements defendant made about the murder during the 2010 interview. Dr. Taylor did not testify about or rely on defendant's postarrest statements to Detective Yee. Defense counsel did not object to Dr. Taylor's testimony.
Dr. Taylor testified that defendant said: " 'I stabbed him with a knife in the stomach and he ran back into the room and I took off and ran outside.' " Taylor asked defendant why he ran outside after stabbing the victim. Defendant replied: " 'Because I had stabbed a man.' " Defendant said the victim's name was " 'Chris Westrick.' "
Defendant said he typically got along with Westrick and denied any frequent conflicts with him. Defendant said: " 'I didn't argue with him none except when I was going to stab him. I told him to go away because I was holding a knife. I wasn't playing because I had the knife on me.' "
Dr. Taylor testified he asked defendant what he was thinking after he stabbed Westrick. Defendant said: " 'I took off and ran.' " Dr. Taylor asked why he ran. Defendant said: " 'Because of what I had done, I ran across the street, I thought I put the knife in the trash can.' " Dr. Taylor asked why he put the knife in the trash can. Defendant said: " 'I don't know, just to get rid of it.' " Defendant added: " 'If the bus would have come, and I got on the bus, I wouldn't want to have the knife on me because I already - because I committed a crime already and didn't want anybody to think I want to kill anyone else.... If they would have seen me with a knife, they would have thought I wanted to harm them. I put it in the trash can in case the bus came, but I didn't and the bus didn't come.' "
Dr. Taylor testified he asked defendant how he felt after he stabbed Westrick. Defendant said: " 'I didn't feel too good.' " Dr. Taylor asked defendant if he thought his actions were right or wrong at the time of the offense. Defendant replied: " 'Wrong.' " Taylor asked why he did something that he believed was wrong. Defendant said: " 'I did it because I was angry.' "
On redirect examination, Taylor testified defendant was able to give a history of how he went to the hospital as a teenager, and that he was given books to study to become competent to stand trial. Defendant said he had auditory hallucinations and heard buzzing or whispering.
Defendant said he built the house where he lived on East Fountain Way, and the other people were stealing it from him. Dr. Taylor asked if he ever served in the military. Defendant said he did not know what the military was. Defendant also said some of the people in the Fountain Way house were dressed like Marines and described the color of their clothes.
Defendant said he thought they were going to beat him up in the East Fountain Way house. He had been told to take a shower or they would throw him outside and shoot water on him. Dr. Taylor testified that it is common for schizophrenics to not care for their hygiene when not taking medication.
Dr. Taylor testified that defendant talked about a conflict in the kitchen about peeling potatoes. Defendant said he already had a knife in his hand and, in his mind, he was being stopped from doing that. Defendant believed in his mind that the victim was "coming at him." Defendant said he was hurt and scared immediately after the stabbing.
Detective Mark Yee
As we briefly mentioned in the introduction, Detective Mark Yee interviewed defendant a few hours after the murder. Yee advised defendant of the Miranda warnings, and defendant made incriminating statements about the murder. Prior to the guilt phase, the court held defendant's statements to Yee were inadmissible because defendant lacked the ability to give a knowing and intelligent waiver of his constitutional rights based on his mental health condition. Yee did not testify at the guilt phase or first sanity trial. At the second sanity trial, defense counsel called Yee to testify about defendant's demeanor at the time of the interview.
Defendant's assignments of error in this appeal are based on the prosecution's cross-examination of Yee at the second sanity phase. In part III, post, we will address Detective Yee's testimony and defendant's objections in detail. Here is a brief summary of Yee's testimony that was admitted at the second sanity trial.
In response to defense counsel's direct examination questions, Yee testified he had previously interviewed individuals who were mentally ill. Yee agreed that he had previously testified in this case that "it came to mind" that "[defendant] had mental health problems" when he interviewed defendant shortly after the murder. Yee further testified that he still stood by that opinion.
In response to the prosecutor's cross-examination questions, Detective Yee testified that he interviewed defendant on the night of the murder. Defendant told him what happened that day. Defendant discussed having a knife but did not say anything that would be considered a disconnect with reality. He did not act agitated or extreme in any way; he was calm. He did not say anything that struck him as delusional; he did not make any statements about building a space station, working in a galaxy, or Martians from outer space performing surgery on him. He did not say anything about being dead and coming back to life, being poisoned at Atascadero, being placed inside someone's body, or babies suddenly appearing in his motel room.
As we will shortly explain, Dr. Howsepian, the defense expert, testified that defendant was legally insane, and his opinion was based on defendant's description of these specific delusions when he interviewed defendant.
On redirect examination, Detective Yee testified defendant did not fully understand the entire Miranda statement that was read to him, but he still conducted the interview. Yee did not ask defendant about Martians, or if he had been inside someone's body. When Yee asked about the stabbing, defendant would repeat things throughout, and answered slowly. He was not very emotional, and his tone did not vary. He mumbled and rambled, and he repeated the same things over and over again.
Dr. Howsepian
Dr. Howsepian had testified for the defense at the guilt phase as to whether defendant was able to form the intent to kill. He testified in greater detail at the sanity phase, and gave his opinion that defendant was legally insane when he killed Westrick.
Dr. Howsepian testified he was privately retained by the defense to examine defendant. He interviewed defendant for five and one-half hours at Atascadero State Hospital on October 8, 2008, one year after the murder. He also reviewed nearly 5,000 pages of defendant's state hospital records. Defendant had been declared competent to stand trial, but he remained at Atascadero to make sure he stayed on his medications.
Dr. Howsepian testified that a person with schizophrenia will hear voices, are paranoid, and misperceive certain situations. There was a wide spectrum where many live on their own and are able to care for themselves while on medication, but some people are more impaired than others and cannot feed or clothe themselves.
Dr. Howsepian's opinion about defendant's sanity
Dr. Howsepian testified that everyone who has a mental illness is not legally insane. In his opinion, however, defendant was legally insane when he stabbed Westrick in September 2007, and he was not able to distinguish right from wrong. Dr. Howsepian testified about numerous reasons for his opinion, based on defendant's history and the statements defendant made during Dr. Howsepian's interview with him in 2008.
Dr. Howsepian's opinion was not based on defendant's postarrest statements to Detective Yee.
Defendant had a very long history of serious mental illness. It began when he was 12 years old and admitted to a state hospital. After that, he was admitted to other state hospitals and psychiatric facilities approximately 50 times. He had a history of being on very potent psychiatric medications. Defendant's IQ was in the high 70s, whereas average intelligence was from 90 to 110.
Dr. Howsepian testified that throughout his life, defendant's reports of hearing voices "were quite striking. They tormented him. They caused him to be in a state of anguish, severe enough that he attempted to take his life." Defendant had a long history of not taking his prescribed medications for various reasons, including his belief that the pills rotted his brain.
Dr. Howsepian also testified about defendant's paranoid ideas, as expressed by defendant during his interview:
"He claims he was beaten by a number of different kinds of people, including people that were enlisted to help him. [F]or example, he believes he was beaten by his parole agent. And that the house that [defendant] had built he claims was stolen from him by the very people who were charged to protect him and monitor him and be on his side."
"He was - also claimed to be - that there were ex-convicts from parole that came to his residence there and attacked him for no apparent reason. So people that were supposed to be friends or helpers attacked him. And, also, other people attacked him and beat him."
Defendant claimed he was poisoned by the doctors at Atascadero, that he was in a coma for three years, and he was eventually revived. This belief "made a huge impression on him. He ended up not trusting the medical staff there." Defendant "very strongly and repeatedly stated to me that he is not mentally ill, that[] he's never been mentally ill," which was consistent with schizophrenics who lack insight into their illness.
Defendant thought aliens had taken his brain out of his head at some point, which showed defendant was preoccupied with his brain. Defendant was concerned that "something" was getting his soul and his peers placed a hex on him, which was consistent with his paranoid delusions and beliefs that are significantly detached from reality.
Defendant said that when he was 25 years old, he was sexually molested by three homosexual men who disfigured his organs, and Westrick was one of those men. Defendant said Westrick murdered him after the sexual assault, buried him, and he was resurrected on a Sunday in the 1980s. Defendant claimed that after he was resurrected, Westrick placed defendant "into his rectum" and kept him there for days at a time, and only allowed defendant to get out to eat and to be beaten. Defendant said he had a slight build, was very vulnerable, and Westrick's body would "open up and almost like swallow him" and keep him imprisoned there.
Defendant claimed that at one point, he was ejected from Earth and lived in outer space. He claimed he worked in various capacities in the galaxy, that he built a space station, and he got to know a number of aliens. Defendant said that when he returned to Earth, he wrote books and appeared in a film about Mars. He also said something happened to his lung, and the Martians gave him a new lung. Defendant developed this theme in great detail during the interview.
Defendant said his brain was taken out of his head, and he needed to eat food to have his brain returned to his head. Dr. Howsepian thought this was significant because of another conflict involving food, and it showed how important food was to him. Defendant also said 345 babies appeared all over the place when he lived at the Virginia Hotel, and the sheriff came to his room and ate the babies.
Dr. Howsepian testified all of defendant's delusions were quite unusual, including his "misidentification delusions," "the Syndome of Subjective Doubles," and "the Syndrome of Intermetamorphosis." Defendant believed he had a number of doubles who existed in multiple locations, "but they're all him. And he expressed these delusions ... in very much detail." Defendant also claimed that he could turn into other people, things, or animals. He said he changed into animals at a particular dairy where his father worked, but his father never worked at that dairy. These statements were consistent with defendant's false beliefs about his environment and his psychotic delusional system.
Defendant's statements about the murder
Dr. Howsepian testified that defendant talked about his relationship with Westrick and the circumstances of the homicide. Defendant claimed Westrick threatened to spray him with a water hose multiple times because he did not take baths. Defendant said that after being sprayed with the hose, there were people next door who could turn him into a clay statute because he would be wet and malleable. Defendant said his sister had been turned into a statute at that same house, and he felt very threatened by Westrick spraying him with a hose.
Dr. Howsepian's testimony on these points was again based on the statements made by defendant during his 2010 interview. Dr. Howsepian did not rely or testify about defendant's postarrest statements to Detective Yee.
Dr. Howsepian noted defendant had a number of conflicts with Westrick about food, and defendant became quite agitated because he thought Westrick was simply exerting authority, and the rules didn't make sense. Defendant said at the time of the homicide, Westrick said he couldn't fry potatoes because there was not enough oil for dinner that night, but defendant said there was plenty of oil for dinner. "Again, thinking that Mr. Westrick was making this up as an excuse and simply kind of exerting his authority. [¶] And for someone who is quite paranoid about how individuals might treat him, this was really a great irritation for him."
Dr. Howsepian further testified:
"[Defendant] was told not to cook those potatoes or slice them up. Mr. Westrick said that he should put the potatoes away. [Defendant] had a knife. A small evidently paring knife or kitchen knife that he wanted, he said, to put into the sink so Mr. Westrick couldn't use it to kill him, and that Mr. Westrick blocked his way to the sink, so he felt profoundly threatened that he couldn't sequester this knife, and he couldn't get away, he felt, and he ended up because of his paranoia stabbing Mr. Westrick."
On cross-examination, Dr. Howsepian testified defendant repeatedly acknowledged that he killed Westrick by stabbing him in the chest. Defendant knew he was stabbing Westrick, and that Westrick was a human being.
"Q. [I]n your interview with [defendant] he was unequivocal that he was stabbing Christopher Westrick, a human being, not a martian?
"A. That's correct.
"Q. Not any other form of life?
"A. That's correct.
"Q. Not any other form of being?
"A. Correct."
Dr. Howsepian asked defendant about his behavior after he stabbed Westrick, and why he left the house and went across the street. Defendant said: " 'I was waiting to have myself arrested.' "
On redirect examination, defense counsel asked Dr. Howsepian about defendant's statements regarding the homicide and his delusional beliefs.
"Q. Okay. The question about if [defendant] understood that he was killing a human being, and you answered that. But isn't it true that [defendant] as part of his belief system seems to think that you can be resurrected? He felt he was dead at Atascadero and came back to life. He felt that Mr. Westrick had killed him before and he came back to life. This is a common theme; would you agree or disagree?
"A. I agree.
"Q. Yes. [¶] And so even though an individual of that belief system may know they're killing a person, they don't understand they're completely ending their life?
"A. They might not, that's right." (Italics added.)
The defense rested after Dr. Howsepian's testimony.
THE PROSECUTION EVIDENCE
Evidence About the Murder
As explained, ante, the first jury that was impaneled heard the guilt phase and convicted defendant of second degree murder. That same jury then heard the sanity evidence, but it was unable to reach a verdict in the sanity phase and a mistrial was declared.
A second jury was impaneled to hear the sanity retrial that eventually resulted in a verdict. During the second sanity trial, the prosecution called several witnesses to repeat their testimony from the guilt phase so the jury could hear the evidence about how defendant stabbed Westrick. Their testimony was consistent with their accounts at the guilt phase with the following additional evidence. The prosecutor asked Officer Dalbec about defendant's demeanor when he arrested him at the bus stop. Dalbec testified defendant spoke calmly, was not belligerent or combative, did not scream, and did not say anything about aliens abducting him.
These witnesses included Bruce Kautzman, Bruce Greiman, James Smith, Dr. Michael Chambliss (the pathologist), Officer Patrick Dalbec (the first officer at the murder scene), and Mindy Crow (the criminalist who determined there was no blood on the knife). It was again stipulated that there were no fingerprints on the knife.
Dr. Harold Seymour
Dr. Harold Seymour testified as the prosecution's expert on defendant's sanity. Dr. Seymour was appointed by the court to examine defendant. He reviewed defendant's records for 15 to 20 minutes. He interviewed defendant on March 24, 2009, for 40 to 45 minutes. Defendant said he understood the purpose of the evaluation and agreed to an interview.
Dr. Seymour testified there was no doubt that defendant was a chronic schizophrenic. In his opinion, however, defendant was legally sane at the time he committed the murder. During his interview, defendant denied he intended or planned to stab the victim. Defendant said they argued, he felt threatened, and he used the knife against the victim. Dr. Seymour testified defendant knew and understood what he did because he left the house and threatened other people. He did not blindly run into the street, but instead made a point of checking traffic as he crossed the street. He discarded the knife in a trash can. "So that indicated to me that he knew that what he had done was wrong, otherwise ... why get rid of the weapon?"
Defense witness Martin testified that he told defendant to put down the knife because he did not want the police to shoot them, and defendant placed it on the trash can.
Dr. Seymour testified it was significant that defendant used the sharp end of the knife to stab the victim, and stabbed him in the torso, front to back. These acts suggested his awareness that he was using a weapon, and that he understood the nature and quality of his act. When a person removes a knife from the victim's body, leaves the area, and takes the knife with him, it shows that he was removing evidence of the attack; he knew that he was in trouble; and he knew what he did was wrong. In contrast, if someone was "very random in their behavior, unpredictable in terms of a variety of acts that don't make logical or sequential sense, that argues more perhaps for not being sane. But if the behavior is organized, it argues for the person being sane." Dr. Seymour explained that in this case, "organized" did not mean planned, but a "[b]asic series of actions in a sequence."
Dr. Seymour testified that if a person was "actively psychotic," he would lose contact with reality, have beliefs and delusions that are not connected to reality, and act in such a way to express their delusions. If a person stabbed the victim and fled the scene, his actions showed that he recognized the reality and consequences of his actions.
If the perpetrator threatened another person to back away " 'or I'll stab you, too' " as he fled, that threat clearly showed the perpetrator knew the nature and quality of his acts, and that it was morally or legally wrong. "He is identifying the behavior. He identified that he had already done it to one person. And if you don't back off, I'm going to do it to you. So he had an awareness that he engaged in that behavior and was threatening to engage in it again." "[T]he fact that he stated that indicated that he knew what he had done and he was threatening to do it again." The statement showed the perpetrator knew he had stabbed another person just moments before, and showed his connection to reality. If the perpetrator was disconnected from reality, he might not even recognize that another person was present.
Dr. Seymour testified about a hypothetical situation where the perpetrator encountered another person as he fled, that person asked why he stabbed the victim, and the perpetrator threatened to stab that person. Such an exchange showed the perpetrator knew he had stabbed another human being, he understood the nature and quality of his act, and it was morally or legally wrong. "He's saying that he did it before. He was aware that he did it before. And that he's threatening to do it again." If the perpetrator attempted to place the knife in a garbage can, it showed he understood his behavior was wrong, and he was trying to dispose of the evidence.
Dr. Seymour was asked about defendant's behavior immediately after he was arrested, when the jail nurse determined he did not need to be placed on a 72-hour psychiatric hold and accepted him into the jail. Dr. Seymour testified the absence of observable psychotic behavior further supported his opinion that defendant was sane.
Cross-examination
On cross-examination, Dr. Seymour testified that defendant talked about delusions and some rather strange behavior during their interview. Defendant claimed the victim sexually assaulted him in 1980 when defendant was 24 years old, but that was not possible based on the respective ages of defendant and the victim. Defendant also said the victim's sexual assault "took his life. And then he was in the ground and he was resurrected."
Dr. Seymour was not aware that another person was at the bus stop and suggested defendant get rid of the knife so they would not get shot by the police. Dr. Seymour was also unaware that defendant regularly sat at that same bus stop for hours.
Dr. Seymour was critical of Dr. Howsepian's opinion because he examined defendant while he was at Atascadero, and Dr. Seymour felt defendant was there because he was incompetent. Defense counsel introduced documents to show that defendant had been restored to competency and remained at Atascadero prior to trial to ensure that he took his medication and maintained competency. Dr. Seymour conceded he was not aware of the circumstances of defendant's continued presence in Atascadero.
Dr. Seymour's testimony about defendant's postarrest interview
On direct examination, the prosecutor asked Dr. Seymour the following hypothetical, based on Detective Yee's testimony at the sanity hearing about defendant's postarrest interview.
"Q. [A]ssume for a moment then that a detective ... spoke with [defendant] sometime after the crime, which is approximately a number of hours. And in that interview there was no description - no observation or statements demonstrating any disconnect from reality; would that support your conclusion [that he was sane]?
"A. It would.
"Q. If instead ... that same detective in interviewing [defendant] had made statements that [defendant] was overcome with bugs and nonresponsive to the detective's questions; would that be a factor suggesting insanity to you?
"A. It would be.
"Q. The absence of that, a normal conservation would support your opinion of sanity; correct?
"A. Correct.
"Q. That's because there's no demonstration of psychotic symptoms at the time; correct?
"A. No overt symptoms, yeah."
Dr. Seymour testified the detective's observations further supported his opinion of sanity. His opinion might change if the detective described any disconnect with reality.
Defense counsel did not object to this sequence but returned to this issue during cross-examination.
"Q. ... Now, if the detective had testified under oath that in his opinion as an experienced detective [defendant] or, you know, an individual did not understand their Miranda rights because of their cognitive problems, because they weren't there present in the situation, would that change your opinion if, you know, the scenario that was presented as to the detective...?
"A. Yeah.
"Q. It is a very different scenario; isn't it?
"A. It potentially could be, yeah."
Sanity Verdict and Sentence
The second sanity trial began on September 2, 2014. On September 12, 2014, the jury found defendant was legally sane when he committed the murder.
On October 10, 2014, defendant was sentenced to 15 years to life for second degree murder, plus one year for the personal use enhancement.
PART III
DEFENDANT'S POSTARREST STATEMENTS
As set forth above, defendant was taken into custody almost immediately after the murder. Detectives Yee and Villalvazo interviewed defendant at the police station a few hours later. The interview was tape-recorded.
As we will explain, post, the court held a pretrial hearing and decided that defendant's statements were inadmissible in the prosecution's case-in-chief at the guilt phase because defendant's purported waiver of the Miranda warnings was not knowing and intelligent based on his mental condition at the time of the interview. Neither party sought to introduce defendant's postarrest statements at the guilt phase or the first sanity hearing.
At the second sanity trial, however, defense counsel called Detective Yee to testify to his opinion that defendant exhibited mental health problems during the interview. On cross-examination, the prosecutor asked Detective Yee to testify about additional details of the interview; defense counsel repeatedly objected to these questions.
On appeal, defendant challenges the court's rulings on his objections to the prosecutor's cross-examination questions and Detective Yee's answers to those questions.
We begin with defendant's postarrest statements to Detective Yee; the court's pretrial evidentiary hearing, where it found his statements were inadmissible; and Yee's testimony at the second sanity trial.
A. Defendant's Postarrest Statements
The fatal stabbing occurred sometime after 4:00 p.m. on September 7, 2014, and defendant was arrested shortly afterwards.
At 9:48 p.m., Detectives Yee and Villalvazo interviewed defendant at the police department for just under one hour. The interview was tape-recorded. The interview was not introduced at the guilt or sanity phases. We will briefly review defendant's statements, however, since they are peripherally involved in what happened in this case.
At the beginning of the interview, Detective Yee introduced himself and his partner and explained they were detectives with the police department. He asked defendant how he was doing. Defendant said he was not too good. Yee said they wanted to talk to him for a little while about what happened that day.
Detective Yee asked defendant if he was okay or taking any medicine. Defendant said he was alright and he was not taking anything. Yee asked if he knew where he was. Defendant thought he was at the jail or a law enforcement building. Yee asked if he knew why he was there. Defendant said, "I think I do" and added, "I wonder if he's alright." Yee asked if he had been arrested before, and if the police had read his rights to him. Defendant said he had been arrested and heard his rights before.
Detective Yee told defendant he was going to read his rights, and asked him to listen real carefully. Defendant said he would, and then started talking about trying to cash a money order. Yee asked him to wait and started to read the Miranda advisements:
"[Yee]. Okay? All right. Now you have the right to remain silent. Anything you say can and will be used against you in a court of law.
"[Defendant]. But you said you were the detective.
"Q. Yes, I am.
"A. You were tryin' to find out somethin'. What...
"Q. Yes, Sir.
"A. ... what do they do?
"Q. Wait 'til we - we find out the truth.
"A. Uh, but, um, what do you do? You try...
"Q. Well, we talk to people. We look at evidence. And then we try to find out the truth about what happened.
"A. Well what' it take to do - find out this, um, what led to un, e-to everything.
"Q. Exact - the whole truth Jerry.
"A. The whole truth e-every day for day.
"Q. Everything.
"A. Day for day.
"Q. Yes.
"A. And, um...
"Q. And that's our job.
"A. I take th-no just that, um, no one's uh, guilty. No one's - and no one's innocent. People be livin' from day- from day to day. But, um...
"Q. Yeah - yeah. We don't worry about guilt or innocence.
"A. But it...
"Q. ... we just worry about the truth.
"A. A detective is a, uh, is a book writer.
"Q. Mm-hm.
"A. But, um...
"Q. Mm-hm.
"A. ... what y'all seems like you an, uh, agent or law enforcers.
"Q. Right.
"A. This is not a law enforce.
"[Villalvazo]. Hm-hm.
"[Yee]. 'Kay. You wanna listen to this Jerry?
"A. Yeah.
"Q. Okay. You have the right to remain silent.
"A. Now what are you?
"Q. Any - anything you say...
"A. All right.
"Q. ... can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer one will be appointed to represent you before any questioning if you wish. You can decide at any time to exercise these rights, not answer any questions or make any statements. Do you understand everything I just read to you Jerry? Do you understand that? You under that ... that it's your right that if you don't wanna talk to me you don't have to. You understand that?
"A. Yeah."
Defendant again asked Detective Yee, "[W]ho are you?" And Yee again explained he was a police detective. Yee asked defendant numerous open-ended questions about what happened that day. Defendant gave rambling and lengthy responses, but eventually said that he was peeling potatoes in the kitchen and argued with "Chris" about whether he could cook them. Chris said defendant could not cook the potatoes because he was making burritos for dinner. Defendant said he wanted more to eat. Defendant said for some reason, Chris came at him. After more rambling statements, defendant said he stabbed Chris once in the gut, got him in the ribs, and saw blood all over Chris. He left the house, and he saw Chris fall down outside. "Bruce" (one of the residents) ran outside and yelled at him. Defendant said he did not want to stab him. Defendant said he went across the street and he still had the knife. He heard the police arrive and put the knife in the trash can.
B. Pretrial Evidentiary Hearing
Prior to the guilt phase, the court conducted an evidentiary hearing pursuant to Evidence Code section 402 as to the admissibility of defendant's postarrest statements to Detective Yee. The court stated that the People did not intend to introduce defendant's statements, but it wanted to conduct the hearing in an abundance of caution. The court marked the audio recording and transcript of the interview and listened to the interview.
Detective Yee was the only witness at the hearing. Yee testified that when he arrived at the crime scene, defendant was already in a patrol car and on his way to the police department. Later that day, Yee interviewed defendant at the police department with Detective Villalvazo.
Detective Yee testified that as he read the Miranda warnings to defendant, defendant repeatedly interrupted him. Defendant grabbed onto words and repeated them. Defendant repeated Yee's job title and what they did as detectives and made rambling statements. Defendant made quite a bit of eye contact with Yee, but he also looked down at the table as if he was concentrating on his words. There were some definite pauses between his responses.
Defendant said he had been at Atascadero, and Detective Yee knew that was the state's mental health facility.
"[Defense counsel]. Even if he hadn't told you that he had been to Atascadero, based on your training, and decades of experience at that time, was it—did it come to mind that he had mental health problems when you were interacting with him?
"[Yee]. Absolutely.
"Q. And that's why this wasn't an interview that took hours and - where there was a lot of interaction, because he - he appeared to not be well, and he pretty much told you what happened?
"A. Based on, yeah, his condition, I believe that we covered everything appropriately in the amount of time." (Italics added.)
Detective Yee testified that defendant interrupted him while he read the Miranda warnings.
"Q. Now, in your training and experience, did you feel he truly understood that he had a constitutional right not to implicate himself in a crime?
"[Yee]. I - I wasn't sure. I didn't - but I can tell you that I didn't get the feeling that he fully understood what - what I read to him."
The parties' arguments
The court noted that during the interview, defendant said he stabbed the victim in the gut, he left, and he felt sad about it. The court further noted that neither the People nor the defense intended to introduce the statement. However, the court asked the parties for their arguments as to whether defendant's statements were admissible at either the guilt or sanity phases.
Defense counsel argued defendant's statements were inadmissible under Miranda, based on the audio tape and Detective Yee's testimony. Counsel argued that defendant did not understand the Miranda warnings, he lacked the ability to decide whether he should ask for an attorney, and he did not have the capacity to give a knowing and voluntary waiver of his constitutional rights. However, counsel thought the statements could be introduced for a limited purpose at the sanity phase to show defendant's state of mind.
The prosecutor argued defendant's statements were admissible at the guilt phase because he gave an express waiver; he gave an implied waiver by answering questions; there was no evidence of coercion; and he said that he had been advised of the Miranda warnings before. The prosecutor believed the statements were also admissible at the sanity phase, but he had not conducted research on the question.
The prosecutor added: "And I just don't know whether if [defense counsel] sought to introduce it in the sanity phase there may be some way. [Defense counsel] and I may even reach some agreement."
The court asked the parties to conduct additional research as to the admissibility of the statements at the sanity phase. The court took the matter under submission. However, the record does not contain any briefs filed by the parties with the superior court on whether defendant's postarrest statements were admissible at the sanity phase.
The court's ruling
The court held that defendant's postarrest statements to Detective Yee were inadmissible in the prosecution's case-in-chief at the guilt phase. The court found defendant was unable to give a knowing and intelligent waiver of his constitutional rights based on his mental state at the time of the interview.
The court relied on Moran v. Burbine (1986) 475, U.S. 412, 441 (Moran), which held that a valid waiver must be given "with a full awareness of both the nature of the right being abandoned, and the consequence of the decision to abandon it." The court found that based on Detective Yee's testimony about defendant's demeanor and the recording of the interview, there was no evidence of coercion, intimidation, or deception. However, defendant's waiver was not made with a full awareness of both the nature of the right being abandoned, and the consequences of the decision to abandon it.
The court cited Detective Yee's testimony that he "absolutely" discerned there were mental health problems, and he had the feeling that defendant did not fully understand the Miranda warnings. "It was the perception of Detective Yee, and his opinion therein, that leads the Court to conclude that the second dimension of a valid Miranda waiver hasn't been established by a preponderance of the evidence."
The court held:
"[T]his is an in limine ruling. And the Court can reconsider and revisit all in limine rulings, not only this. But at this point it's the Court's ruling in limine that the statement ... is inadmissible in the case - in the People's case in chief, and case in chief only. [¶] And, of course, since the People have referenced they don't intend to introduce that evidence, I don't anticipate that to be a significant issue. But at last we've gone through it, and that's the Court's opinion at this point."
The court and the parties did not address whether defendant's postarrest statements would be admissible at the sanity phase.
C. The Guilt Phase and the First Sanity Trial
At the guilt phase, Detective Yee was called by the prosecution and testified briefly about the blood evidence throughout the house and his interviews with the residents about what happened. Yee did not testify about his interview with defendant.
At the first sanity trial, the defense witnesses were Dr. Taylor and Dr. Howsepian. The prosecutor's witness was Dr. Seymour. The evidence was consistent with the testimony set forth above from the second sanity trial. Detective Yee was not called as a witness at the first sanity trial.
As noted in part II, ante, the same jury heard the guilt phase and the first sanity trial; as a result, there was no need to introduce evidence about the homicide at the first sanity trial. As a result of the mistrial, the second sanity trial was held before a new jury, which had not heard any evidence about the homicide, so that the parties were required to call additional witnesses to testify about the murder.
D. The Second Sanity Trial
Prior to the beginning of the second sanity trial, neither party asked the court to revisit the admissibility of defendant's postarrest statements to Detective Yee. The parties did not refer to defendant's postarrest statements in their opening statements.
In the midst of the defense case, the court stated that the defense was going to call Detective Yee, and the prosecutor wanted to raise an issue before Yee testified. The prosecutor replied that he would speak with defense counsel to resolve the issue off the record. After a recess, the court asked the parties whether there was anything to address. The prosecutor said that he knew the nature and scope of Yee's proposed testimony, but he did not believe "it runs afoul of any of the Court's prior in limine rulings. So I would have no objection to Detective Yee's being called by [defense counsel]." The parties continued with other defense witnesses.
E. Detective Yee's Testimony
We have briefly summarized Detective Yee's testimony at the second sanity phase. We now review it in greater detail in order to address defendant's appellate contentions about whether Yee's testimony should have been excluded.
The defense called Detective Yee as a witness. Yee testified he responded to the homicide scene just after defendant was arrested and driven away in a patrol car. Yee investigated the scene and then returned to the police department.
Detective Yee testified he met with defendant in a room at the police department. Defense counsel asked how many people Yee had interviewed in his career. Yee replied he had interviewed at least 1,000 people. Defense counsel asked the following questions.
"Q. So you have a sharp eye for - you've dealt with mentally ill individuals; correct?
"A. Yes, quite often."
The prosecutor requested to approach the bench. Defense counsel replied they had already conferred. The court asked the attorneys to briefly confer about their concerns.
After a brief, unreported conference, the prosecutor said it was fine, and defense counsel continued.
"Q. And in your opinion based on all your experience, assessing his demeanor, you agree that he appeared to be mentally ill - a mentally ill person in September 2007?
"[The prosecutor]: Objection. Ask to approach. Relevance. Foundation. Unclear the foundation for this opinion. Improper opinion.
"THE COURT: Sustained on foundational basis.
"[Defense counsel]: Q. You've dealt with a lot of mentally ill individuals as suspects; correct?
"A. I have, yes.
"Q. Yes. [¶] And part of your assessment of an individual is to kind of determine where - where they're at, if they're able to understand you, or anything else; that's part of your background?
"A. Well, I would say, yes, assessing behavior, statements, known facts of their behavior, pretty much everything - all the information you can possibly get is used to determine, yeah.
"Q. And you've testified before in proceedings regarding [defendant]?
"A. Yes.
"[The prosecutor]: Your Honor, objection. May we approach?
"THE COURT: Well, again, Counsel, I ask you both to confer momentarily before I respond.
"[Defense counsel]: One more question.
"THE COURT: Go ahead.
"Q. Did you testify before [referring to the pretrial evidentiary hearing] that it came to mind when you were dealing with [defendant] that he had mental health problems?"
The prosecutor objected. The court directed defense counsel to ask the question again and then it would consider an objection.
"Q. You remember testifying previously in proceedings regarding [defendant]?
"A. Yes, I have.
"Q. Okay. And do you remember and still stand by that you told the truth that when I asked you in your decades of experience that it came to mind to you that he had mental health problems that you said, 'Absolutely.' Do you still stand by that?" (Italics added.)
The prosecutor objected and asked to approach. The court overruled the objection. Detective Yee answered: "I still stand by that, yes."
The prosecutor's cross-examination
The prosecutor asked Detective Yee to explain the basis for his opinion about defendant. Yee testified he relied on transcripts from his testimony at previous hearings, his investigation, the interview, and his observations of defendant.
In response to the prosecutor's request, the court called a recess and an unreported conference was held. When the court resumed, the parties did not place the substance of the conference on the record.
The prosecutor resumed cross-examination and asked Detective Yee about his conversation with defendant.
"Q. [D]id he tell you what took place on the evening of September 4th, 2007?
"[Defense counsel]: Objection. Preliminary ruling. Miranda.
"THE COURT: I'll allow the answer to that question at this time, that question.
"[A.] Yes, he told me what happened.
"[Q.] Okay. What did he tell you took place, Detective?
"[Defense counsel]: Objection. 402 hearing ruling. In limine ruling. Miranda.
"THE COURT: Sustained.
"Q. Detective, did he tell you about anything unusual that took place on that evening, September 4th of 2007?
"[Defense counsel]: Objection. In limine rulings. 402 hearing. Miranda.
"THE COURT: Sustained.
"Q. Detective, did—was there anything ever shared with you about anything that would be a disconnect with reality?
"[Defense counsel]: I'm going to object. All - the interview. Miranda. 402 hearings. In limine motions.
"THE COURT: I'll allow the answer to that question.
"[A.] No.
"[Q.] Based on your observations then of [defendant], did he appear to you to be - did he act agitated or extreme in anyway?
"A. Not at all.
"Q. Was he calm?
"A. Very.
"Q. In response to questions that you asked him, did he respond back to you calmly?
"A. Yes, he was calm throughout." (Italics added.)
Detective Yee testified the interview occurred around 8:00 p.m. or 9:00 p.m. on the day of the murder.
"Q. Any - did he say anything to you that demonstrated to you any disconnect with reality?
"[Defense counsel]: Objection. 402 hearing. In limine motions. Miranda.
"THE COURT: I'll allow the answer to that question.
"[A.] No, sir." (Italics added.)
Detective Yee testified he was familiar with the concept of a delusion as an untrue belief about reality.
"Q. In your speaking with [defendant], did he share with you anything that struck you as a delusion?
"[Defense counsel]: Objection. Foundation. Also Miranda. In limine ruling.
"THE COURT: I'll allow the answer to that question.
"[A.] No, sir, nothing appeared delusional to me." (Italics added.)
The prosecutor asked Detective Yee about defendant's statements.
"Q. [D]id the Defendant make any statements to you regarding ... building a space station, or working in a galaxy?
"[Defense counsel]: Interview. In limine motions. Miranda."
The court overruled the objection. Detective Yee testified defendant did not say anything of that nature. In response to further questions from the prosecutor, Detective Yee testified defendant did not say anything about Martians from outer space doing surgery on him.
"Q. Did he share with you anything about being dead and coming back to life?
"[Defense counsel]: Your Honor, objection. Well beyond the scope of direct. Relevance at this point. And, again, there's been Miranda here.
"THE COURT: I'll allow the answer to that question. Overruled."
Detective Yee testified defendant did not say anything like that, or say that babies suddenly appeared in the room. Defendant did not say that he had been killed and brought back to life. Defense counsel objected to the answer; the court overruled the objection.
In response to additional questions, Detective Yee testified defendant did not say that someone poisoned him at Atascadero, or he had been placed inside another person's body. Yee testified defendant never made any statements to indicate any disconnect from reality.
Defense counsel's redirect examination
In response to defense counsel's questions, Detective Yee testified defendant did not fully understand the entire Miranda statement that was read to him, but Yee still conducted the interview. Yee did not ask defendant about Martians or if he had been inside someone's body. When Yee asked about the stabbing, defendant would repeat things throughout and answered slowly. He was not very emotional, he did not vary his tone, he mumbled and rambled, and he repeated the same things over and over again.
The People's recross-examination
Detective Yee testified defendant did not make any statements indicating a disconnect with reality.
"Q. [Defendant] discussed what took place that evening...?
"A. He did.
"Q. He discussed ... having a knife; correct?
"A. Yes.
"[Defense counsel]: Objection. Statements by the Defendant. Miranda. In limine ruling.
"THE COURT: Sustained." (Italics added.)
Detective Yee testified that based on his experience as an officer, he could recognize mental health issues. Defendant did not show any disconnection with reality. Defendant often took long pauses or repeated the same thing over and over. Defendant was very soft spoken and he mumbled at times, but he did not appear agitated. Yee had no problem understanding him. His answers were always in response to a question.
Detective Yee testified he had interviewed people who were mentally ill and in the middle of psychotic episodes. In such cases, their answers demonstrated a disconnect with reality or were not responsive to the questions. Defendant did not demonstrate a disconnect with reality, and his answers were generally coherent and responsive to his questions about what happened that day.
DISCUSSION
Defendant raises one issue on appeal based on the second sanity trial: the court improperly permitted Detective Yee to testify about defendant's postarrest statements, which the court had already excluded because of the Miranda violation. Defendant asserts the court's finding that his statements were inadmissible in the prosecution's case-in-chief at the guilt phase "[b]y implication" also extended to the sanity phase. Defendant argues that statements obtained in violation of Miranda, but which are otherwise voluntary, were only admissible to impeach his own testimony if he took the stand at either the guilt or sanity phase. However, defendant never testified, and his postarrest statements were inadmissible under any circumstances.
Defendant concedes that Detective Yee was called by the defense - and not the prosecution - at the second sanity trial "to testify, briefly, as to one point: When Detective Yee saw [defendant] after his arrest, he thought that, absolutely, [defendant] had mental health problems."
Defendant asserts that the prosecutor's subsequent cross-examination questions about defendant's postarrest statements, his nonverbal communications, and what he did not say were improper. Defendant asserts that Detective Yee's cross-examination testimony violated defendant's right to silence pursuant to both Miranda and Doyle.
Defendant argues the court's evidentiary rulings as to Detective Yee's testimony were prejudicial and, to the extent that defense counsel did not adequately preserve these issues, counsel was prejudicially ineffective for failing to do so. Defendant further argues defense counsel was prejudicially ineffective for calling Yee at the second sanity trial. Defendant notes that the jury at the first sanity trial did not hear this testimony from Yee, and it was unable to reach a verdict; whereas the jury at the second sanity trial heard Yee's testimony about defendant's postarrest statements and conduct and found him sane.
A. The Court's Ruling as to Defendant's Postarrest Statements
While neither party has challenged the court's pretrial ruling as to the Miranda violation, we begin with the court's pretrial ruling to exclude defendant's postarrest statements and briefly review the applicable legal principles as relevant to the issues raised in this appeal.
As set forth in part III(B), ante, the court relied on Moran, supra, 475 U.S. 412 and held that, based on Detective Yee's hearing testimony about defendant's demeanor, and the audio recording of defendant's interview, that defendant was unable to give a knowing, intelligent, and voluntary waiver of his constitutional rights based on his mental state at the time of the interview.
The Miranda advisements are required when a person is subjected to custodial interrogation. (People v. Mickey (1991) 54 Cal.3d 612, 648; People v. Davidson (2013) 221 Cal.App.4th 966, 970.) "Miranda holds that '[t]he defendant may waive effectuation' of the rights conveyed in the warnings 'provided the waiver is made voluntarily, knowingly and intelligently.' [Citation.] The inquiry has two distinct dimensions. [Citations.] First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the 'totality of the circumstances surrounding the interrogation' reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.]" (Moran, supra, 475 U.S. at p. 421, italics added.)
"Determining the validity of a Miranda rights waiver requires 'an evaluation of the defendant's state of mind' [citation] and 'inquiry into all the circumstances surrounding the interrogation' [citation]." (People v. Nelson (2012) 53 Cal.4th 367, 375.) The defendant "must have been capable of freely and rationally choosing to waive his or her rights and speak with the officers. [Citation.]" (People v. Rundle (2008) 43 Cal.4th 76, 114, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
There is no requisite level of intelligence or sophistication to trigger a defendant's ability to validly waive his Miranda rights. (People v. Jenkins (2004) 122 Cal.App.4th 1160, 1171.) "[A]ll that is required for a valid waiver of [Miranda] rights is that the defendant understand that he could stand mute, request a lawyer and that anything he did choose to say could be used against him to secure a conviction. [Citation.]" (People v. Clark (1993) 5 Cal.4th 950, 991-992, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.)
The fact that a defendant has a mental illness or suffers from schizophrenia does not render the defendant incapable of waiving his or her constitutional rights if there is evidence that the defendant otherwise understood and validly waived his or her rights. (People v. Watson (1977) 75 Cal.App.3d 384, 396-397 [schizophrenic with I.Q. of 65 validly waived rights]; People v. Whitson (1998) 17 Cal.4th 229, 249-250 [defendant with low intelligence validly waived rights after he was seriously injured in car crash]; People v. Villareal (1985) 167 Cal.App.3d 450, 456-457 [psychotic paranoid schizophrenic whose competence was never questioned validly waived rights].) " ' "Neither a low I.Q. nor any particular age of minority is a proper basis to assume lack of understanding, incompetency, or other inability to voluntarily waive the right to remain silent under some presumption that the Miranda explanation was not understood." '[Citations.]" (People v. Lewis (2001) 26 Cal.4th 334, 384, italics added [defendant who was less than 14 years old and schizophrenic understood and validly waived Miranda rights].)
"To establish a valid waiver of Miranda rights, the prosecution must show by a preponderance of the evidence that the waiver was knowing, intelligent, and voluntary. [Citations.]" (People v. Nelson, supra, 53 Cal.4th at pp. 374-375.) On appeal, "we accept the court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained. [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 992.)
While defendant's mental health condition did not raise a presumption that he was unable to waive his constitutional rights, there is substantial evidence to support the trial court's finding that the defendant was not capable of giving a knowing and intelligent waiver at the time that Detective Yee interviewed him on the evening of September 7, 2007. The audio recording demonstrates that as Yee read the Miranda advisements, defendant became fixated on certain words and repeated them numerous times. The recording supports Yee's hearing testimony, that it was "absolutely" apparent that defendant had mental health problems, and he did not fully understand his constitutional rights. Defendant recounted what happened when he stabbed Westrick. Nevertheless, there is substantial evidence to support the trial court's factual findings, based on Yee's hearing testimony and the tape recording, that defendant showed no understanding of the constitutional rights that were being read to him or the consequences of waiving those rights.
B. Admissibility of Defendant's Postarrest Statements
The court found defendant's postarrest statements were obtained in violation of Miranda and were inadmissible in the prosecution's case-in-chief. It also found there was no evidence of coercion, intimidation, or deception such that his statements were otherwise involuntary. We next turn to whether defendant's statements were admissible for any purpose in light of the court's ruling.
"Generally, statements elicited in violation of ... Miranda ... may not be used against the defendant at trial [citation], including to rebut a sanity defense [citations]. This exclusionary rule is applied in prophylactic fashion to deter coercive investigative questioning and advance the trustworthiness of trial evidence, even if the defendant's statements were voluntary apart from the Miranda violation. [Citations.]" (People v. Andreasen (2013) 214 Cal.App.4th 70, 86.)
As explained in Harris v. New York (1971) 401 U.S. 222 (Harris), statements obtained in violation of Miranda are not admissible against the defendant in the prosecution's case-in-chief. If the defendant testifies, however, statements obtained in violation of Miranda, but which are otherwise voluntary, are admissible to impeach his credibility. (Harris, supra, at pp. 224-226; People v. Gutierrez (2002) 28 Cal.4th 1083, 1132; People v. Peevy (1998) 17 Cal.4th 1184, 1188; People v. May (1988) 44 Cal.3d 309, 315; United States v. Havens (1980) 446 U.S. 620, 626-627 [statements obtained in violation of the exclusionary rule are similarly admissible to impeach defendant's trial testimony].)
If the defendant's statements are involuntary, the evidence is inadmissible for all purposes. (Michigan v. Harvey (1990) 494 U.S. 344, 350-351; People v. Neal (2003) 31 Cal.4th 63, 85.)
As defendant notes, his postarrest statements, which were obtained in violation of Miranda, were not admissible under the rule of Harris because he did not testify at either the guilt or sanity phrases and thus he was not subject to impeachment. C. James v. Illinois and Impeachment of Defense Witnesses
While defendant did not testify at either phase of the trial, that does not end our analysis. The rationale underlying Harris's rule of impeachment is that although the prosecution cannot make affirmative use of unlawfully obtained evidence, this does not mean " 'that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.' " (Harris, supra, 401 U.S. at p. 224.) This rationale has been used to both limit and extend Harris's impeachment exception.
In James v. Illinois (1990) 493 U.S. 307 (James), the court held the impeachment exception addressed in Harris did not extend to impeaching a defense witness with evidence that had been illegally obtained from the defendant. In that case, the defendant was arrested for murder and attempted murder. The arrest occurred the day after the crime. When the defendant was arrested, his hair was black and curly, and the police asked him about his hair. The defendant said that the previous day, his hair was reddish brown, long, and combed straight back, and that he had dyed his hair to change his appearance. Prior to the defendant's trial, the court granted his motion exclude these statements as the fruit of a Fourth Amendment violation because the detectives lacked probable cause for his warrantless arrest. His statements were otherwise found to be voluntary. (Id. at p. 309-311)
At trial, the prosecution witnesses testified the gunman had reddish hair. The defendant did not testify. A defense witness testified that she was with the defendant on the day of the murder, and his hair was black. Over the defendant's objection, the court permitted the prosecutor to call the officer who interviewed the defendant at the time of his arrest, in order to impeach the credibility of the defense witness's testimony about his hair color. The officer testified to defendant's postarrest statements which had been excluded because of the Fourth Amendment violation - that the defendant admitted he had reddish hair and changed it the next day to alter his appearance. (James, supra, 493 U.S. at p. 310.)
James held trial court improperly admitted evidence to impeach the defense witness's testimony. James explained that while Harris's impeachment exception to the exclusionary rule permitted the prosecution to introduce illegally obtained evidence to impeach the defendant's own testimony, it did not extend "to impeach the testimony of all defense witnesses with illegally obtained evidence. [Citation.]" (James, supra, 493 U.S. at pp. 308-309, italics in original.) The Harris exception was designed to penalize defendants for committing perjury "by allowing the prosecution to expose their perjury through impeachment using illegally obtained evidence." (James, supra, at p. 314.) James declined to extend the exception "to encompass the testimony of all defense witnesses" because it would not have the same beneficial effects of discouraging perjured testimony, without also discouraging truthful testimony. (Ibid.) Expansion of the exception "likely would chill some defendants from presenting their best defense and sometimes any defense at all - through the testimony of others." (Id. at pp. 314-315.) It would also enhance the expected value to the prosecution of illegally obtained evidence. In balancing these concerns, the court held that illegally obtained evidence could only be introduced to impeach the defendant's own testimony at trial. (Id. at pp. 316-318.)
As applied to this case, Detective Yee testified as a defense witness about defendant's demeanor at the time of his postarrest interview, and that he showed signs of mental illness. The prosecution sought to use defendant's postarrest statements, obtained in violation of Miranda, to impeach Yee's testimony with additional details about defendant's demeanor and statements during that interview, that he did not appear detached from reality or mention any delusions. It thus would appear that James would prohibit using such illegally obtained statements to impeach a defense witness rather than the defendant himself. D. Limitation of James by Out-of-State Decisions
Although James could be broadly interpreted to prohibit the impeachment of any defense witness other than the defendant, several state courts have limited the decision to permit the use of evidence obtained in violation of Miranda and/or the exclusionary rule, to impeach a defense expert in circumstances similar to this case.
We are not bound by cases from other states. (People v. Mays (2009) 174 Cal.App.4th 156, 167.) However, we will review these cases because, as we will discuss in part E, post, a series of California decisions have relied on these holdings.
For example, in Wilkes v. United States (D.C. 1993) 631 A.2d 880, certiorari denied, 513 U.S. 848 (Wilkes), the defendant was charged with murder. He made statements to the police and admitted the offense. The trial court found the defendant's statements were voluntary, but held the evidence was inadmissible because of a Miranda violation. (Id. at pp. 881-882.) The defendant relied on an insanity defense. A defense expert testified that at the time of the crime, the defendant suffered from a disassociative disorder and was in a different state of awareness, so that he did not understand the implications of his behavior. (Id. at p. 883.) The trial court permitted the prosecutor to cross-examine the defense expert about the defendant's pretrial statements to the police, which had been excluded because of the Miranda violation. The prosecutor used hypothetical questions as to whether the expert's diagnosis would be different if the defendant told the police incriminating details about the crime when he was arrested. The trial court also allowed two police officers to testify about defendant's incriminating statements in the state's rebuttal case. (Ibid.)
Wilkes held the defendant's statements were admissible to impeach the defense expert under a limited interpretation of James. Wilkes held that James rejected "the idea that 'all defense witnesses' can be treated as a homogeneous group for the purpose of determining the scope of the impeachment exception. Thus the Court makes clear that there is no shorthand way to apply to 'all defense witnesses' en masse the balancing approach that is crucial to the impeachment exception." (Wilkes, supra, 631 A.2d at p. 887, italics in original.)
"[A]s the Court emphasized in James, an important purpose of the impeachment exception is to discourage defendants 'in the first instance from "affirmatively resorting to perjurious testimony." ' [Citation.] Such discouragement is best achieved here by upholding the admission of [the
defendant's] statements. Obviously, no one can be 100 percent certain whether [the defendant's] apparent mental disorder is feigned or real. Nevertheless, this is probably the only situation (we can think of no other) in which the threat of a perjury prosecution is of no value. A doctor who accurately recounts what his patient has told him, and in so doing properly discloses to the fact-finder the basis for his opinion, does not commit perjury simply by relating untruths told to him by his patient. Thus this case is readily distinguishable from James, for example, in which the Court recognized that most defense witnesses (other than the defendant) are sufficiently deterred from committing perjury by the threat of being prosecuted for it. No analogous threat hangs over the head of a defendant who knows that his untruths will simply be relied upon and repeated to the jury on his behalf by his psychiatrist." (Id. at pp. 889-890.)
Wilkes concluded that using statements obtained in violation of Miranda to rebut an insanity defense would not chill the defendant's ability to raise the best defense available. (Wilkes, supra, 631 A.2d at p. 890.) "A defendant may still avoid admission of the suppressed evidence if he or she does not open the door by telling something to a psychiatrist that is contradicted by that evidence. In this regard, the application of the impeachment exception which we uphold in this case is simply not of the same breadth, and consequently cannot be charged with the same infirmities, as the broad rule ... rejected by the Supreme Court in James. Our holding is limited to the factual context of a case such as this, in which the defendant offers the testimony of a psychiatrist (or other expert) to support an insanity defense. We do not think that such a defendant should be allowed to lie to the psychiatrist and get away with it when there is evidence tending to show that he lied and that the psychiatrist's diagnosis was based on that lie." (Id. at p. 890, italics in original.)
A similar result was reached in State v. DeGraw (1996) 196 W.Va. 261 (DeGraw), where the defendant was charged with murder for fatally stabbing his friend. The defendant made incriminating postarrest statements to the police about his activities on the night of the murder. The court excluded these statements because of a Miranda violation. At trial, the defendant relied on a diminished capacity defense and claimed he had blacked out at the time of the murder. A defense psychiatrist testified that the defendant told him that he was unable to recall anything because he suffered from blackouts caused by alcohol and drug consumption. In rebuttal to the expert's testimony, the prosecution called an officer who testified about the defendant's postarrest statements, obtained in violation of Miranda, that showed he remembered what happened that day. (Id. at pp. 265-267)
DeGraw relied on Wilkes and held the rebuttal evidence of the defendant's postarrest statements was properly admitted to show he could remember the events that occurred while he was allegedly blacked out, and to impeach the contrary claim the defendant made to the expert. The court distinguished James as follows. (DeGraw, supra, 196 W.Va. at p. 270.)
"[I]n these types of cases the real witness being impeached is not the defense witness, but the defendant. Consequently, when a defendant offers the testimony of an expert in the course of presenting a defense such as the insanity defense or the diminished capacity defense, which calls into question the defendant's mental condition at the time the crime occurred, and the expert's opinion is based, to any appreciable extent, on the defendant's statements to the expert, the State may offer in evidence a statement the defendant voluntarily gave to police, which otherwise is found to be inadmissible in the State's case-in-chief, solely for impeachment purposes either during the cross-examination of the expert or in rebuttal, even though the defendant never takes the witness stand to testify. [Citation.]" (Ibid., italics added, fn. omitted.)
In People v. Williams (1998) 181 Ill.2d 297 [229 Ill.Dec. 898, 692 N.E.2d 1109] (Williams), the trial court permitted the prosecution to impeach a defense expert's testimony with a statement that defendant made in violation of Miranda, and which had been excluded from the prosecution's case-in-chief. Williams rejected the defendant's argument that the introduction of the impeachment evidence violated James. (Williams, supra, 692 N.E.2d at p. 1128.) "The testimony elicited from [the defense expert] during cross-examination was used not to impeach the expert, but rather to test the soundness and fairness of the expert's opinion regarding defendant's state of mind at the time of the shooting. This type of questioning is within the proper scope of cross-examination." (Ibid., italics added.) E. Limitation of James by California Decisions
There are some California cases that have followed Wilkes, DeGraw and Williams, and held that James does not prevent impeachment of a defense expert with statements obtained from the defendant in violation of Miranda or the exclusionary rule.
In People v. Boyer (2006) 38 Cal.4th 412, the trial court allowed the prosecutor to impeach a defense expert's testimony about the defendant's mental state, with statements that the defendant had made to two other defense experts. The defendant argued his statements to the other two defense experts were inadmissible to impeach the first expert because they were the tainted fruit of his illegal confession. Boyer acknowledged that James held the impeachment exception to the exclusionary rule did not apply to defense witnesses other than the defendant himself. Boyer held that James's reasoning did not apply because the defense expert was not cross-examined with the defendant's statements that were illegally obtained by the police. (Id. at pp. 463-464.)
In People v. Johnson (2010) 183 Cal.App.4th 253 (Johnson), the defendant was arrested for a series of robberies. He confessed that he committed a particular gas station robbery while wearing a distinctive jersey. The court excluded that confession because it was obtained in violation of Miranda, but it was otherwise voluntary. The prosecution dropped the charge based on that gas station robbery and proceeded with other robbery charges. At trial on the other charges, the defendant sought to introduce evidence that the victim of the uncharged gas station robbery had been unable to identify him or anyone else in a lineup, in support of his defense claim of third party culpability. The prosecutor objected and argued such evidence would present a fraud on the court since the defendant had confessed to that crime, although his statement was obtained in violation of Miranda. (Johnson, supra, at pp. 274-278.) The trial court held that the defendant could introduce the victim's inability to identify him, but that it would also admit evidence of his voluntary but suppressed confession that he actually committed that robbery: " 'I don't think [the defendant] should be permitted to put before the jury through other witnesses information which he knows to be untrue.' " (Id. at p. 278.) The defendant declined to introduce the evidence.
Johnson rejected the defendant's claim that the trial court's evidentiary ruling violated his constitutional right to present a defense. (Johnson, supra, 183 Cal.App.4th at p. 278.) Johnson held that the defendant was still able to present evidence of possible third-party culpability through other evidence that did not implicate his confession to the uncharged crime. Johnson further held that the trial court's ruling was valid pursuant to James. (Id. at p. 281-282.) "Although Harris concerned the admission of a defendant's suppressed statement to impeach the defendant when he testifies at trial, the ruling's principle of admitting the evidence in a context other than the prosecution's case-in-chief so as to avoid false testimony applies equally here and satisfies the James balancing test" since the defendant sought to use the victim's testimony to convince the jury he did not commit the uncharged robbery "and, by extension, commit the other robberies, when in fact he was the person who robbed [that victim]. The court's reliance on his suppressed confession significantly furthered its truth-seeking function by ensuring the jury was not confused or misled by a bogus argument." (Id. at p. 282, italics added.)
"The reasoning of James is inapposite here. The trial court did not authorize use of [the defendant's] confession to impeach a witness. Rather, the court considered the confession in order to prevent [the defendant] from extrapolating a false argument from truthful testimony. James was concerned that a broad exception to the exclusionary rule would chill defendants from calling witnesses 'who would otherwise offer probative evidence.' [Citation.] James said nothing about a defendant's attempt to use Miranda as a sword to force the jury to consider a false and misleading argument." (Id. at p. 283.)
On appeal in this case, the People have relied on People v. Spence (2012) 212 Cal.App.4th 478 (Spence), in support of the argument that the court properly allowed the prosecutor to cross-examine Detective Yee. As we will explain, Spence relied on the cases from other states, discussed above, in finding that a defense expert was properly impeached.
In Spence, the defendant was charged with sexually molesting his girlfriend's daughter. The defendant voluntarily went to the police station and admitted to a detective that he molested the child. The detective asked if he wanted to apologize to the child; the defendant said he could not write or read well, and the detective offered to write a letter of apology if the defendant dictated it. The defendant agreed, and the detective wrote the letter and kept the original. The police allowed the defendant to take care of his affairs and turn himself in a few days later. When the defendant later surrendered, he had two handwritten, signed letters in his possession, which were addressed to the victim and her mother and expressed his remorse and sadness. The police made copies of the letters and returned the originals to the defendant. (Spence, supra, 212 Cal.App.4th at p. 486-487.)
Prior to trial in Spence, the court held a hearing on the defendant's motion to exclude his prearrest statements and the dictated letter. At the suppression hearing, the defendant testified that he let the detective write the dictated letter because he thought that was what the police wanted to hear him say. The prosecution presented the defendant with the two letters that were in his pocket when he surrendered. The defendant admitted the signature and handwriting looked like his own and guessed that he wrote them. The court denied the defendant's motion to exclude his prearrest statements and the dictated letter. (Spence, supra, 212 Cal.App.4th at pp. 487-488.)
At the trial in Spence, the prosecution introduced the dictated letter of apology. The defendant did not testify. A defense psychologist testified the defendant had mental deficiencies and did not read or write at a normal adult level, based on samples the defendant provided during the expert's evaluation of him. On cross-examination, the prosecution showed the expert the two handwritten letters found in the defendant's pocket when he was arrested. The prosecution also moved to introduce the defendant's testimony at the suppression hearing, when he admitted he must have written those two letters. The court overruled the defendant's objections and permitted the evidence. (Spence, supra, 212 Cal.App.4th at p. 489-490.)
Spence held that the trial court properly permitted the prosecution to introduce the defendant's testimony at the pretrial suppression hearing to rebut the defense expert's testimony about his inability to write, and that the evidence did not violate James. In reaching this holding, Spence relied on Boyer and Johnson, and the out-of-state cases of Wilkes and Williams, and concluded that while the defendant had a form of qualified immunity at the suppression hearing, "when the defendant's testimony at a suppression hearing is potentially contrary to a defense expert's opinion that was based in part upon discussion with the defendant, the rule established by James does not apply." (Spence, supra, 212 Cal.App.4th at pp. 493, 498-502.)
"Since [the defendant's] main defense was that he is sufficiently mentally challenged so that he was very likely to make a false confession when requested to do so by authority figures (the detectives), and/or that the evidence against him was mainly trumped up by [the victim's mother], this sequence of events shows that the door was legitimately opened for impeachment of [the defense psychiatrist's] expert opinion, to the extent his testimony was being used in support of those defenses. The reasoning expressed in James ... is not applicable to the case before us. Even though the Supreme Court in that case stated its conclusions sweepingly, by discussing the impeachment exception as not being extended to 'all defense witnesses,' it must be acknowledged that its discussion of the applicable policies was engaged in with specific reference to the facts before it. [Citation.] The facts before this court are different from those in James, and when we apply its balancing test, we find that allowing the impeachment of the expert witness's opinion, by presenting the excerpt from Spence's suppression testimony, will best promote truth seeking; it will not chill defendants 'from presenting their best defense - and sometimes any defense at all - through the testimony of others' [citation], and it will not 'unduly encourage police misconduct by preserving a broad area in which the evidence could be used despite its illegal procurement.' [Citation.]" (Id. at pp. 504-505, italics added.)
F. Analysis
We now turn to Detective Yee's testimony at the second sanity phase. In doing so, however, we cannot address defendant's contentions about the prosecutor's cross-examination questions to Yee without considering the circumstances under which he testified.
First, at the pretrial evidentiary hearing, the court asked the parties for argument as to whether defendant's postarrest statements were admissible at the guilt and/or sanity phases. Defense counsel argued the statements were inadmissible at the guilt phase, but thought the statements might be admissible for a limited purpose at the sanity phase to show defendant's state of mind. The prosecutor said he did not intend to introduce defendant's statements at the guilt phase, but believed defendant validly waived his rights and the statements were admissible at both the guilt and sanity phases.
The court took the matter under submission and asked the parties for further briefing on whether the statements were admissible at the sanity phase. The court subsequently held that defendant's statements were inadmissible in the prosecution's case-in-chief at the guilt phase because of the Miranda violation but were otherwise voluntary. The court did not address the admission of defendant's postarrest statements in the sanity phase, and there is nothing in the record to indicate the parties submitting any pleadings on that issue, even though the court stated it was willing to reconsider its ruling.
Second, it is also important to note that Detective Yee was not called as a witness by either party at the first sanity trial, which ended in a mistrial. As explained above, the defense has the burden of proof at the sanity trial and begins the presentation of evidence. At the second sanity trial, defendant - and not the prosecution - moved to call Yee as a witness in support of his burden to prove he was legally insane. In response to the defense motion, the prosecutor asked to raise an issue with the court, but instead the prosecutor and defense counsel discussed the matter off the record. After a recess, the prosecutor stated that Yee's proposed testimony would not run afoul of the court's prior in limine ruling. Defense counsel did not ask the court to clarify the nature and extent to which Yee could testify about the postarrest interview.
Third, when Detecive Yee testified for the defense, defense counsel attempted to establish a foundation that Yee had previously interviewed and assessed suspects who were mentally ill and, based on his expertise as an officer, asked about his prior testimony and opinion regarding defendant's mental health condition. The court overruled the prosecutor's objections. In response to defense counsel's questions, Yee testified that he had interviewed at least 1,000 people in his career, and had dealt with and assessed mentally ill people as suspects quite often.
"[Defense counsel]. Okay. And do you remember and still stand by that you told the truth that when I asked you in your decades of experience that it came to mind to you that he had mental health problems that you said, 'Absolutely.' Do you still stand by that?" (Italics added.)
The prosecutor objected and asked to approach. The court overruled the objection. Detective Yee answered: "I still stand by that, yes."
The record implies that defense counsel apparently made the tactical decision to call Detective Yee in light of the jury's inability to reach a verdict at the first sanity trial, and that Yee's belief about defendant's mental health condition would be relevant, probative, and helpful to defendant's burden to prove that he was legally insane when he committed the murder.
As in Spence, Johnson, and the other cases which limited the application of James, defendant's decision to call Detective Yee to testify about his opinion regarding defendant's mental health condition, based on his expertise interviewing people with mental illness, opened the door to the prosecution being able to impeach Yee's opinion with defendant's postarrest statements to Yee that were obtained in violation of Miranda but were otherwise voluntary. In asking for Yee's opinion, defense counsel did not simply ask him to describe defendant's demeanor. Instead, defense counsel sought to establish Yee's experience as a police officer in evaluating and questioning suspects who are mentally ill, and then asked if he stood by his previously expressed opinion that defendant had mental health problems.
As a result of defense counsel's questions, the prosecutor's cross-examination was within the scope of Detective Yee's direct examination testimony as to defendant's demeanor: that he was calm and not agitated during the interview. "The Supreme Court has distinguished 'physical' and 'demeanor' evidence from 'testimonial' evidence, holding that evidence of the former does not engender Fifth Amendment protection. [Citation.] Demeanor evidence often involves the admission of evidence concerning a defendant's 'slurr[ed] speech,' [citation], 'apparent nervousness,' [citation], or a defendant's demeanor during a polygraph test, even though the results may not be admissible ... [citation]." (United States v. Velarde-Gomez (9th Cir. 2001) 269 F.3d 1023, 1031.)
The more problematic portion of the cross-examination was when the prosecutor asked Detective Yee if defendant told him what happened that day. The court overruled defense counsel's Miranda objection. Yee replied that defendant told him what happened, but did not reveal the contents of the statement. It could be argued that the question and answer were appropriate under Johnson and Spence. Yee had already testified that based on his experience as an officer, defendant showed mental health problems during the interview. His response to the prosecutor's question demonstrated that defendant was still able to communicate about what happened. Yee did not testify about the contents of that statement, whether it was consistent with the evidence, or if defendant confessed.
The prosecutor's next question directly addressed the contents of defendant's statements: "What did he tell you took place...?" Defense counsel again raised a Miranda objection and this time the court sustained the objection. The court also sustained defense counsel's Miranda objection to the prosecutor's question about whether defendant said "anything unusual" took place that day.
The court overruled defense counsel's Miranda objections to the prosecutor's questions about whether defendant said or did anything to demonstrate that he was disconnected with reality. Detective Yee testified no. The prosecutor also asked Yee if he was familiar with the concepts of delusions, and if defendant "share[d]" anything that "struck" him as delusional. Yee again said no. Again, based on the nature of the direct and cross-examination, the questions and answers addressed Yee's evaluation of defendant's demeanor, and appears appropriate based on Johnson and Spence's limitation on James.
Alleged Doyle error
On appeal, defendant argues the prosecutor's cross-examination questions to Detective Yee implicated Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) and defendant's right to remain silent, because the questions elicited evidence as to what defendant did not say during the interview. Doyle prohibits the prosecution from using the defendant's postarrest and post-Miranda silence to impeach the defendant's trial testimony. (Id. at pp. 617-619.) Doyle also prohibits the prosecution from using the defendant's post-Miranda silence as evidence of guilt in the case-in-chief. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118.) Doyle has been extended to prevent the prosecution from using the defendant's post-Miranda silence to overcome a plea of insanity in a criminal case. (Wainright v. Greenfield (1986) 474 U.S. 284, 292.) "The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony. It is equally unfair to breach that promise by using silence to overcome a defendant's plea of insanity." (Ibid.)
The failure to make a Doyle objection at trial waives the claim of error and precludes raising the issue on appeal. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 63; People v. Huggins (2006) 38 Cal.4th 175, 198; People v. Tate (2010) 49 Cal.4th 635, 691-692.)
Defendant's appellate claim of Doyle error is based on the prosecutor's cross-examination questions to Detective Yee about whether defendant made statements about building a space station, working in a galaxy, being dead and returning to life, that babies appeared in his room, that he had been placed inside someone's body, or that he was poisoned at Atascadero. The court overruled defense counsel's repeated Miranda objections, and Detective Yee said defendant did not say anything like that. On redirect examination, defense counsel brought out that Yee did not ask defendant any questions about these topics.
The prosecutor's questions were clearly intended to rebut the testimony from the defense experts about defendant's delusions on these topics. However, the defense experts did not rely on defendant's postarrest statements when they testified about defendant's delusions.
Defendant acknowledges defense counsel never raised a Doyle objection, and asserts counsel was prejudicially ineffective for failing to do so in response to the prosecutor's questions to Detective Yee about what defendant did not say during the interview. Defendant equates his failure to mention certain delusions with a suspect's postarrest, post-Miranda silence.
At most, however, defendant's Doyle claim might implicate an alleged assertion of the defendant's partial or "selective" silence - that a suspect may selectively waive his Miranda rights by answering some questions but not others - a purported right that has not been recognized in California. (See, e.g., People v. Hurd (1998) 62 Cal.App.4th 1084, 1092-1093; People v. Coffman and Marlow, supra, 34 Cal.4th at pp. 118-119; People v. Jennings (2010) 50 Cal.4th 616, 664; People v. Bowman (2011) 202 Cal.App.4th 353, 364-365.)
The Ninth Circuit has reached a different conclusion on "partial" Doyle error. In Hurd v. Terhune (9th Cir. 2010) 619 F.3d 1080, the court held that "the right to silence is not an all or nothing proposition. A suspect may remain selectively silent by answering some questions and then refusing to answer others without taking the risk that his silence may be used against him at trial. [Citation.]" (Id. at p. 1087, fn. omitted; see also United States v. Soliz (9th Cir. 1997) 129 F.3d 499, 503-504, overruled on other grounds in United States v. Johnson (9th Cir. 2001) 256 F.3d 895.)
The Doyle rule is not absolute. (People v. Bowman, supra, 202 Cal.App.4th at p. 363.) Doyle does not prohibit the prosecution from cross-examining a defendant, who received the Miranda warnings and voluntarily spoke to an officer, with discrepancies between the defendant's pretrial statements and trial testimony. (Ibid.)
In addition, there are circumstances where the prosecution may introduce evidence of defendant's silence in a sanity trial: "[E]ven if defendant had been given Miranda warnings at the time of his arrest, it still would have been proper for the prosecution - by introducing evidence that defendant consciously chose to remain silent - to attempt to rebut defendant's assertion that his mental illness rendered him incapable of communicating. Because defendant had introduced evidence of his uncommunicativeness as alleged proof that he suffered from a mental illness, the prosecution was entitled to impeach or rebut such an inference by presenting to the jury evidence that established a different explanation for defendant's lack of communication. The prosecution's ability, in such circumstances, to show the reason for defendant's silence should be no less than it would be had the prosecution introduced evidence that defendant had taken a vow of silence or suffered from laryngitis." (People v. Jones (1997) 15 Cal.4th 119, 172, reversed on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Defendant's interpretation of Doyle does not apply to this case. At the pretrial evidentiary hearing, the court excluded defendant's statements because it found he was not capable of giving a knowing and intelligent waiver, and he may not have understood his right to remain silence at the time of the interview. Nevertheless, the audio recording of Detective Yee's interview refutes any implication that defendant refused to answer certain questions or attempted to claim a right to silence. Instead, defendant responded to all of Yee's questions, which raised the inference of an implied waiver. (See, e.g., Berghuis v. Thompkins (2010) 560 U.S. 370.) While the court found defendant was not capable of giving either an express or implied waiver, defendant gave rambling answers and described what happened before, during, and after the murder. He expressed his anger at Westrick's refusal to let him cook, consistent with what the witnesses heard, and never referred to any delusions as to the reason for the stabbing.
As we have explained, the prosecutor's questions to Detective Yee implicated James and the limitations on impeaching a defense witness with statements that were obtained from the defendant in violation of Miranda. There is no evidence of Doyle error, or that defendant attempted to claim a full or selective right to silent.
Defendant's statement about the knife
In the last portion of Detective Yee's testimony, the prosecutor asked him whether defendant discussed having a knife. Yee said yes, apparently answering just before defense counsel again made a Miranda objection. The court sustained the objection, but defense counsel did not ask for a motion to strike or to admonish the jury.
Detective Yee's testimony on this point would not have been admissible under even the most limited interpretation of James. As a defense witness, Yee's direct examination opinion about defendant's mental health condition was not based on whether or not defendant said anything about a knife, but on his observations of defendant's demeanor. As a result, defendant's statement about the knife was subject to exclusion even under Johnson, Spence, and Wilkes, pursuant to the court's ruling that his postarrest statements were obtained in violation of Miranda.
G. Prejudice
Defendant raises an ineffective assistance claim as to whether defense counsel failed to make the appropriate objections as to Doyle error. Defendant further argues that counsel was prejudicially ineffective for making the apparent tactical decision to call Detective Yee as a defense witness at the second sanity trial and asking him to give his opinion, based on his experience as an officer, as to whether defendant showed signs of mental illness during the interview. Defendant asserts counsel's decision was prejudicial because it allowed the prosecution to cross-examine Yee about other aspects of the interview.
To prevail on a claim of ineffective assistance, the defendant "must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.] Tactical errors are generally not deemed reversible, and counsel's decision making must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation ....' [Citation.] Finally, prejudice must be affirmatively proved; the record must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 333.)
" 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' [Citations.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]." (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
We have already explained that Doyle error was not implicated by the prosecutor's questions to Detective Yee about what defendant did not say; thus, counsel's failure to raise a specific Doyle objection was not prejudicial error. However, counsel repeatedly objected to the prosecutor's questions based on the court's prior Miranda ruling.
As for defendant's second ineffective assistance argument, the record implies that in light of the mistrial at the first sanity phase, defense counsel apparently made the tactical decision to call Detective Yee at the second sanity trial to testify to his belief that defendant showed signs of mental illness shortly after the murder. This tactical decision was consistent with defense counsel's comments at the pretrial evidentiary hearing - that defendant's statements could be introduced for a limited purpose at the sanity phase to show defendant's state of mind. In making this decision, counsel must have been well aware that the facts of the murder were undisputed, and that defendant had recounted those facts to the experts who examined him in preparation for the sanity phase. Counsel may have believed that introducing Yee's opinion about defendant's condition was relevant and probative, and outweighed the risk that she was opening the door to the prosecutor's cross-examination questions. Indeed, counsel may have realized exactly what was going to happen by calling Yee as a defense witness. Counsel never asked the court to clarify its ruling as to whether Yee's testimony about defendant's postarrest statements were admissible at the sanity phase. Instead, the parties discussed Yee's proposed testimony during the recess, and they never placed those discussions on the record, either before or after Yee's testimony.
Even if we conclude that defense counsel was ineffective for calling Detective Yee as a defense witness, we cannot find that this apparent tactical decision, or that the court's evidentiary rulings during Yee's testimony, were prejudicial under the circumstances. As explained in part II, ante, "[i]nsanity, under California law, means that at the time the offense was committed, the defendant was incapable of knowing or understanding the nature of his act or of distinguishing right from wrong. [Citations.]" (Hernandez, supra, 22 Cal.4th at pp. 520-521; Mills, supra, 55 Cal.4th at p. 671; People v. Elmore, supra, 59 Cal.4th at p. 140.) " 'If [a] mental illness is manifested in delusions which render the individual incapable either of knowing the nature and character of his act, or of understanding that it is wrong, he [or she] is legally insane' " under California law. (People v. Blakely, supra, 230 Cal.App.4th at p. 776.) Thus, the question for the jury in defendant's sanity trial was whether, based on a mental disease or defect, "he was incapable of: (1) knowing or understanding the nature and quality of his acts or (2) distinguishing right from wrong" when he murdered Westrick. (Id. at p. 779.)
The circumstances surrounding defendant's commission of the murder, which was introduced before the second jury at the sanity phase, was strong evidence that he knew the nature and character of his act, and that he knew it was wrong. Defendant murdered Westrick by plunging a knife deep into his upper torso, with such force that it penetrated his heart. The knife entered Westrick's body on a direct horizontal plane. There was no evidence of a struggle or defensive wounds on Westrick's body. Defendant removed the knife from Westrick's body, held onto it, and immediately fled the house, demonstrating his realization that he did something wrong and needed to leave.
When Greiman, one of defendant's fellow residents, went through the front door to get help, defendant confronted him and, without being challenged by Greiman, said: " 'If you take one more step I'll stab you.' " This statement shows that defendant was well aware that he was holding a knife, that it was a weapon, and that he could use it to attack another person. When James Smith, the manager of the adjacent house, told defendant not to flee at the bus stop, defendant was still holding the knife and told him: " 'Motherf**ker, I'll stab you, too. I just want you guys to leave me alone.' " Defendant's statements again showed his realization that he was holding a weapon, that he could use it to attack and injure someone and, more importantly, that he had just stabbed another person and was willing to do it again.
Dr. Howsepian, Dr. Taylor, and Mark Duarte, the defense experts, extensively testified about defendant's long history of schizophrenia, his delusions, and his acts of violence. Dr. Howsepian testified in detail about defendant's descriptions of delusions which the expert described as unique - defendant's belief that he had been held within Westrick's body, that he died and was brought back from the dead, and that he built a space station with Martians. Defendant also made these statements to the prosecution's expert.
As we have explained, however, a defendant may suffer from a diagnosable mental illness without being legally insane. (Mills, supra, 55 Cal.4th at p. 672.) Both the prosecution and defense experts interviewed defendant from one to three years after the murder. The record revealed that during the pretrial period, defendant remained at Atascadero after he had been restored to competency, and the experts interviewed him there. In the course of these interviews, defendant described his delusions but also gave succinct accounts about why and how he stabbed Westrick, and his descriptions were consistent with the undisputed evidence of the murder.
When defendant was interviewed by the experts, he described his delusion of being poisoned and killed, that he was buried, and that he came back to life. While he had delusions that Westrick had assaulted him, defendant never tied any of his delusions to what happened in the kitchen when he stabbed Westrick, or that he believed Westrick would also return from the dead.
Even if the entirety of Detective Yee's testimony had been excluded, it effectively mirrored that of Bruce Welch, the nurse at the jail who evaluated defendant immediately after he was arrested. Welch testified that an arrestee would not be accepted into the jail if he was incoherent, or a danger to himself or others because he was gravely disabled. Welch did not know about defendant's psychiatric history when he initially evaluated him. Welch determined defendant's "insight at that particular time to me appeared poor." Defendant was "disorganized in his thoughts, incoherent, very guarded and suspicious, and he was refusing to take medication that was being offered to help clear up his mind." Welch did not describe defendant voicing any delusions, such as those described by the experts, or demonstrating that he was disconnected from reality. Instead, Welch accepted defendant for booking into the jail, and did not recommend sending him to the hospital on a 72-hour psychiatric hold. Welch's testimony thus demonstrated that while defendant may have been incoherent and suspicious, he was not acting in a delusional or dangerous manner immediately after the stabbing, that would have required a psychiatric hold.
We conclude that to the extent that the court's evidentiary rulings as to Detective Yee's cross-examination testimony were erroneous, or that defense counsel's decision to call Yee constituted ineffective assistance, the errors were not prejudicial under the entirety of the circumstances.
DISPOSITION
The judgment is affirmed.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DETJEN, J.