Opinion
B157489.
7-25-2003
THE PEOPLE, Plaintiff and Respondent, v. CEDRIC LOMAR BEVERLY, Defendant and Appellant.
John J. Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
Cedric Lomar Beverly appeals from the judgment entered following his conviction by a jury for residential burglary and driving
under the influence of alcohol. Beverly contends his trial counsel provided constitutionally ineffective assistance by failing to move to exclude evidence of statements Beverly made to the police at the time of his arrest. Because we find no reasonable defense attorney would have failed to seek exclusion of this evidence and further conclude Beverly was prejudiced by his counsels deficient representation, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Events of June 16, 2000
Beverly worked as a security guard at a senior citizens complex in Palmdale. On Sunday morning, June 16, 2000, he was still "staggering drunk" after drinking beer and gin at an all-night party celebrating his wifes fortieth birthday. Nevertheless, he went to work as scheduled at 7:45 a.m. He returned home about an hour later, drank more gin and beer and returned to work.
Beverly began drinking at 4:00 p.m. on Saturday and continued drinking until Sunday morning. According to his wife, when he left home on Sunday morning he was "staggering drunk."
Anthony Douglas and his family lived in a house behind the senior citizens complex. A wall separates their back yard from the complex. On the morning of June 16, 2000 members of the Douglas family heard a crash of breaking glass and saw Beverly standing in their dining room. After Douglas shouted for his gun, Beverly left the house through the dining room window and jumped over the back wall. Douglas ran outside and saw Beverly walking with a bicycle (later determined to have been taken from the back yard) on the opposite side of the wall. Douglas saw Beverly approach a parked car, lean toward the passenger window and engage in conversation with someone inside the car, although no other person was visible. Beverly then got in the car and drove away.
Deputy Sheriff John Christie responded to the Douglas familys 911 call. While Deputy Christie was talking to Anthony Douglas outside the house, Beverly drove his car back to the scene of the break-in. Douglas recognized Beverly as the intruder and shouted "thats him!"
Deputy Christie ordered Beverly out of the car and handcuffed him. Noticing bloodstains on Beverlys shirt and a cut on his hand, Christie asked how he had cut his hand. Beverly replied that he had cut it closing the hood of his car. Christie then told Beverly he was under arrest and advised him of his right to remain silent, to the presence of an attorney, and, if indigent, to appointed counsel. (Miranda v. Arizona (1966) 384 U.S. 436 [86 S. Ct. 1602, 16 L. Ed. 2d 694] (Miranda).) Beverly told Christie he would answer questions and denied he had done anything wrong. When Christie asked if Beverly had cut his hand while breaking the window at the Douglas home, Beverly refused to answer and asked for an attorney. Christie then asked Beverly to take a field sobriety test. Beverly admitted he had been drinking and driving, but refused to cooperate with the field sobriety test. Based on the results of a subsequent breath test at the sheriffs station, Beverlys blood alcohol was estimated to have been .24 to .25 percent at the time of the break-in.
2. Events at Trial
Beverly was charged with first degree residential burglary (Pen. Code, § 459), driving under the influence of drugs and/or alcohol (Veh. Code, § 23152, subd. (a)) and driving with a blood alcohol level of 0.08 percent or higher (Veh. Code, § 23152, subd. (b)). He pleaded not guilty and denied the special allegations.
As to the felony burglary count, it was alleged Beverly had two prior "strikes" (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior serious felony convictions (Pen. Code, § 667, subd. (a)(1)) and had served five prior separate prison terms (Pen. Code, § 667.5, subd. (b)).
Trial was by jury. Beverly admitted he entered the Douglas home; his sole defense was that he lacked the mental capacity necessary to form the specific intent required for burglary.
Before any testimony was taken, the trial court asked counsel on several different occasions whether any Miranda issues needed to be addressed. Neither the prosecutor nor Beverlys defense lawyer indicated any pretrial hearing was necessary.
During trial Deputy Christie testified, without objection, that Beverly initially said he had cut his hand on his car; that after being advised of his rights under Miranda he denied any wrongdoing but refused to answer further questions and asked to see a lawyer when asked if he had cut his hand on the window at the Douglas home; and that he had refused to cooperate with Christies request that he perform field sobriety tests. This evidence was introduced, in part, to demonstrate consciousness of guilt and to establish that Beverly, even though highly intoxicated, was capable of thinking clearly about what he was doing and what was happening to him.
At the conclusion of the evidentiary portion of the trial, the court again raised, sua sponte, its serious concern about possible Miranda violations, particularly with respect to the evidence that Beverly had invoked his right to the presence of counsel before responding further to police questioning. After an extensive colloquy with counsel, during which the court criticized both the prosecutor and defense attorney for failing to alert it to the Miranda issues arising from Christies testimony, the court ruled it would strike the post-Miranda question regarding how Beverly cut his hand and Beverlys request for counsel in response and would immediately instruct the jury to disregard that evidence.
The full exchange between the trial court and counsel is set forth in the appendix to this opinion.
When the jury returned, the court in its presence struck the question and answer and instructed the jury not to consider it for any purpose: "You are not to consider it to show a consciousness of guilt. You are not to consider it to show whether the defendant had a certain mental capacity at the time, because when somebody asks for an attorney or they invoke their rights, that is something the law really respects. You are not to use that against him in any way, shape or form."
In his closing argument, defense counsel conceded that Beverly had been driving under the influence of alcohol and that Beverly was the person who broke into the Douglas home. However, he argued, "Mr. Beverly was so intoxicated that he could not form the required specific intent to make a complete burglary."
Shortly after the jury began to deliberate, the jurors sent a note asking for the testimony of Deputy Christie and the Douglas children to be read back. After conferring with both counsel, the trial court ordered Deputy Christies testimony read without the references to Beverlys request for an attorney and without Deputy Christies statement that he had "Mirandized" the suspect.
After six hours of deliberation, the jury found Beverly guilty on all charges and found the prior conviction allegations to be true. He was sentenced to a total of 35 years to life in state prison.
CONTENTIONS
Beverly contends his counsel provided constitutionally deficient representation by failing to object to the admission of the following three statements:
1. Beverlys pre-Miranda statement he had cut his hand while closing the hood of his car.
2. Beverlys post-Miranda request for counsel after being asked if he had cut his hand while breaking the window at the Douglas home.
3. Beverlys post-Miranda/post-request-for-counsel admission he had been drinking and driving in response to a request to perform field sobriety tests.
DISCUSSION
A criminal defendant has the right to counsel under the Sixth Amendment to the United States Constitution, as applied to the states through the due process clause of the Fourteeenth Amendment, and also under the counsel clause of article I, section 15 of the California Constitution. This right entitles the defendant to the effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (Strickland); People v. Kipp (2001) 26 Cal.4th 1100, 1122.) An effective counsel is one who performs to the standard of a "reasonably competent attorney who acts as a diligent conscientious advocate. [Citations.]" (People v. Soriano (1987) 194 Cal. App. 3d 1470, 1478-1479, 240 Cal. Rptr. 328.) There is a presumption that the challenged action "might be considered sound trial strategy" under the circumstances. (Strickland, at p. 689; accord, People v. Dennis (1998) 17 Cal.4th 468, 541, 950 P.2d 1035.) On a direct appeal a conviction will be reversed for ineffective assistance of counsel only where, as here, the record demonstrates there could have been no rational tactical purpose for counsels challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442, 907 P.2d 373.)
A defendant claiming ineffective assistance must also establish there is a reasonable probability that, but for counsels deficient performance, the result of the trial would have been different. (Strickland, supra, 466 U.S. at pp. 686-687; People v. Williams (1997) 16 Cal.4th 153, 215, 940 P.2d 710.) Such a reasonable probability plainly exists in this case. A timely motion to exclude would certainly have been granted as to Beverlys post-Miranda request for counsel and might well have been granted as to his false explanation of the cut on his hand made after he had been detained and handcuffed. There is a reasonably probability the jury would have reached a different verdict in that event.
In light of Beverlys blood-alcohol levels and Christies testimony that he saw Beverly drive back to the scene of the break-in, any error in the admission of Beverlys statement that he had been drinking and driving, standing alone, is harmless beyond a reasonable doubt.
1. Failure to Object to the Use of Beverlys Statement That He Had Cut His Hand Closing the Hood of His Car Constituted Ineffective Assistance of Counsel
The People argue it would have been futile for Beverlys counsel to object to evidence of Beverlys initial, pre-Miranda statement regarding how he cut his hand because this limited, pre-arrest questioning of Beverly was entirely proper. We do not believe the question of admissibility is so simple or the answer as clear as the People suggest.
A criminal suspect may not be subjected to custodial interrogation unless he or she has been advised of his or her right to remain silent, to the presence of an attorney and to appointed counsel if he or she cannot afford private counsel. (Miranda, supra, 384 U.S. at pp. 444-445, 473-474; see People v. Montano (1991) 226 Cal. App. 3d 914, 930, 277 Cal. Rptr. 327 ["California courts apply federal standards to Miranda-related issues of both substance [citation] . . . and procedure [citation]."].) "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Miranda, at p. 444.) "A person is in custody for purposes of Miranda if he is deprived of his freedom in any significant way or is led to believe, as a reasonable person, that he is so deprived. [Citation.]" (People v. Whitfield (1996) 46 Cal.App.4th 947, 953.)
Relying on cases permitting law enforcement officers to temporarily detain and question a suspect when the officer harbors suspicion of wrongdoing but no probable cause for arrest (Terry v. Ohio (1968) 392 U.S. 1, 88 [88 S. Ct. 1868, 20 L. Ed. 2d 889]; Berkemer v. McCarty (1984) 468 U.S. 420, 438-441 [104 S. Ct. 3138, 82 L. Ed. 2d 317]), the People contend Beverlys pre-Miranda statement was admissible because he was not in custody when Deputy Christie ordered him from his car and handcuffed him. Although it is true that, under limited circumstances, a suspect may be handcuffed without being in custody (e.g., United States v. Bautista (9th Cir. 1982) 684 F.2d 1286, 1292), we have serious reservations as to whether those circumstances exist in this case. (See United States v. Glenna (7th Cir. 1989) 878 F.2d 967, 972 ["handcuffs are restraints on freedom of movement normally associated with arrest"].) Had counsel properly raised the issue, it is quite possible the trial court would have found Beverly was in custody from the moment he was handcuffed, after being clearly identified by Douglas as the person who broke into his home. (See Bautista, at p. 1292 [trial court determines whether suspect is "in custody" based on "all the pertinent facts"].)
Absent findings from the trial court regarding all the circumstances surrounding Beverlys detention, we certainly cannot say it would have been futile for defense counsel to have objected to the admission of Beverlys statement. Failure to even present the issue to the trial court, notwithstanding the courts repeated invitation to raise possible Miranda issues, on the other hand, plainly falls below the level of "reasonable competence" to which a criminal defendant is entitled. (See People v. Fosselman (1983) 33 Cal.3d 572, 584, 189 Cal. Rptr. 855, 659 P.2d 1144.)
The People also contend, "Deputy Christie asked a single question which was neutral on its face and a reasonable person would not conclude that such a question was one reasonably likely to elicit an incriminating response." Thus, they argue there was no interrogation for Miranda purposes. The question, however, is not whether the question is neutral on its face, but whether the officer knows or intends it to elicit an incriminating response. (People v. Mosley (1999) 73 Cal.App.4th 1081, 1089 ["For Miranda purposes, interrogation is defined as any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response," (italics added)]; Rhode Island v. Innis (1980) 446 U.S. 291, 301 [100 S. Ct. 1682, 64 L. Ed. 2d 297] [interrogation includes statements or actions "that the police should know are reasonably likely to elicit an incriminating response from the suspect" (italics added, fn. omitted)].) Although the police are permitted to ask routine questions designed to identify the suspect or other persons near the scene of a crime (People v. Clair (1992) 2 Cal.4th 629, 679-680, 828 P.2d 705), Deputy Christies question appears designed, not to determine Beverlys identity, but to elicit either an admission that Beverly had cut his hand on the window when he broke into the Douglas home or a denial that could be used to show consciousness of guilt and the ability to form the specific intent to steal. (See People v. Cunningham (2001) 25 Cal.4th 926, 993 ["The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response"].) Again, whether or not Deputy Christies question is ultimately found to be "interrogation" within the meaning of Miranda, we have no doubt defense counsels failure to object and thereby bring the issue to the attention of the trial court falls below the required standard of professional competence.
2. Failure to Object to the Use of Beverlys Post-Miranda Request for Counsel Constituted Ineffective Assistance of Counsel
The People quite properly do not attempt to argue that Deputy Christies testimony regarding Beverlys request for counsel was admissible, implicitly conceding it would have been excluded if defense counsel had objected. (People v. Crandell (1988) 46 Cal.3d 833, 878, 251 Cal. Rptr. 227, 760 P.2d 423 overruled on another ground by People v. Crayton (2002) 28 Cal.4th 346, 364-365 [under due process clause "it is fundamentally unfair to use post-Miranda silence against the defendant at trial in view of the implicit assurance contained in the Miranda warnings that exercise of the right of silence will not be penalized. [Citation.] A similar process of reasoning supports the conclusion that comment which penalizes exercise of the right to counsel is also prohibited."]; see People v. Cleland (2003) 109 Cal.App.4th 121 [same].) However, they argue counsels failure to object could have been the result of a tactical choice because "it would be reasonable for trial counsel to conclude that evidentiary objections would not sit well with the jury" and therefore is not an appropriate basis for a finding of ineffective assistance of counsel. (People v. Lucas,supra, 12 Cal.4th at p. 442.)
Failure to object to this evidence, which according to the trial court created "a big problem" for both the court and the defense, could not reasonably have been a matter of tactics. Objections to Deputy Christies testimony should have been raised outside the presence of the jury, through a motion in limine or otherwise, a procedure the trial court invited on several occasions. Moreover, the record makes it clear that defense counsels failure to object was not the result of any rational tactical choice: Beverlys trial counsel admitted in open court that he "was struggling with how to deal with it," "probably should have jumped up at the time [the evidence was admitted]" and he "should have brought this up ahead of the trial, but [he] just overlooked and forgot about it." Contrary to the Peoples contention, defense counsels statement that he thought he might raise the issue in a new trial motion does not constitute a rational tactical reason for failing to raise the issue at the first possible moment.
As the trial court pointed out, such conduct would have constituted improper "sandbagging."
3. Beverly Was Prejudiced by His Counsels Ineffective Assistance
It was undisputed that Beverly was the person who broke into the Douglas home. His defense to the burglary charge was that his intoxication left him unable to form the required specific intent to commit theft once inside. In support of this theory, Beverly presented evidence he was a habitual heavy drinker who had, on a prior occasion, mistakenly entered a home not his own. However, the jury also heard Deputy Christie testify that Beverly was able to construct an innocuous explanation for the cut on his hand, invoke his constitutional rights to remain silent and to an attorney and attempt to divert attention from the burglary by confessing to driving under the influence. This evidence was potentially devastating to the defense theory that Beverly was too drunk to know what he was doing.
Nevertheless, the jury apparently still found the case to be a close one. The jury requested a read-back of the testimony of Deputy Christie and the Douglas children and deliberated for six hours over two days. (See People v. Woodard (1979) 23 Cal.3d 329, 341, 152 Cal. Rptr. 536, 590 P.2d 391 superseded by statute on another ground as recognized by People v. Castro (1985) 38 Cal.3d 301, 307-310, 211 Cal. Rptr. 719, 696 P.2d 111 [six hours of deliberation and request for reading of trial testimony demonstrates defendants guilt "was far from open and shut" and evidentiary errors were therefore prejudicial]; People v. Fudge (1994) 7 Cal.4th 1075, 1133, 875 P.2d 36.) A reasonable probability exists that the outcome of the trial would have been different had defense counsel performed adequately and successfully excluded the challenged statements. (See Strickland,supra, 466 U.S. at pp. 693-694 ["reasonable probability" that defendant was prejudiced by ineffective assistance of counsel means "a probability sufficient to undermine confidence in the outcome" of the trial].)
Our conclusion there is a reasonable probability Beverly would have obtained a better result at trial had his counsel performed competently is not altered in this case by the trial courts decision to strike the testimony by Deputy Christie that Beverly had invoked his right to counsel during his interrogation and its instruction to the jury to disregard the question and answer. First, the curative instruction did not in any way address Deputy Christies testimony that Beverly had initially proffered a false explanation as to how he had cut his hand.
Second, although we generally presume the jury was able to follow the courts instructions to disregard improper questions or argument by counsel (People v. Lucero (2000) 23 Cal.4th 692, 714; People v. Pinholster (1992) 1 Cal.4th 865, 919, 824 P.2d 571), our review of the entire record reveals that in this case the trial courts admonition was as likely to have highlighted the improper evidence regarding Beverlys invocation of his right to counsel as to have induced the jury to disregard it. The trial court not only instructed the jury not to consider the evidence "in any way, shape or form" and to "just wipe it out of your brain and your memory" but also expressly — and repeatedly — directed the jury "not to consider it to show a consciousness of guilt," "not to consider it to show whether the defendant had a certain mental capacity at the time," "dont use it to show he knew what he was doing," "dont use it to show he had a consciousness of guilt or anything of that nature." By thus emphasizing the critical significance of the now-stricken testimony to Beverlys defense, the trial court virtually ensured that the jury could not avoid weighing it in the balance when deciding whether Beverly was too drunk to form the specific intent to commit a burglary, particularly when it could also consider how Beverlys ability to fabricate an innocent explanation for his bleeding hand demonstrated an unimpaired level of mental functioning. Under these circumstances the trial courts instruction to disregard the improper questioning did not cure defense counsels ineffective representation of Beverly. (See People v. Luparello (1986) 187 Cal. App. 3d 410, 426, 231 Cal. Rptr. 832 [improper introduction of gang evidence could not be cured by admonition].)
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court for further proceedings not inconsistent with this opinion.
We concur: WOODS, J. MUNOZ (AURELIO), J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
APPENDIX
"THE COURT: . . . The court has one issue I would like to bring up with counsel.
"According to my notes, Deputy Christie testified that he confronted the defendant by the parking structure I believe, and he asked him how he cut his hand, and he said he cut it closing the hood of his car.
"And that then thereafter he was Mirandized and he said he would answer the officers questions and he didnt do anything wrong.
"The officer then asked him if he cut his hand at the victims apartment and he asked for an attorney.
"The officer then testified that he asked him to cooperate with the field sobriety tests, and the defendant said he had been drinking and driving, but he wouldnt take the test.
"He refused to open his eyes for nystagmus test and the defendant said he would take the breath test and blow in the machine.
"So I am concerned about there was no objection at the time it came in.
"I did ask counsel if they wanted to have a Miranda hearing with respect to any statements before the trial started.
"Both attorneys said no, that was not necessary.
"I didnt think there would be any issues; that they did expect the defendants statement regarding he had been drinking and driving, but he would blow in the machine.
"But I didnt know he had this issue that he asked for an attorney.
"So I am concerned that we need to deal with this.
"So my proposal would be that I instruct the jurors to disregard the officers question I asked him if he cut his hand at the victims apartment and he asked for an attorney, and they are not to consider that either to show a consciousness of guilt or even for his mental state or functioning.
"I dont know.
"MR. SWARTH [Beverlys counsel]: Just tell them not to consider it for any purpose.
"THE COURT: What is your position, Mr. Fleck? Have you given this any thought?
"MR. FLECK [prosecutor]: Just right now.
"My thinking on it
"MR. SWARTH: Of course, it is classic pink elephant.
"MR. FLECK: I mean, it certainly does show a certain level of mental state.
"It shows a level of consciousness and that is a major issue in this case.
"So I would think it should come in for that purpose.
"Clearly there are some problems with that statement based on the fact that, you know, we dont want the jury considering it as evidence of consciousness, as evidence of consciousness of guilt.
"I suppose an extraction [sic] could be specifically tailored for that purpose.
"MR. SWARTH: If I may, the problem is, of course, how it jibes with the instruction that the defendant is under no obligation to testify and that his failure to testify cant be used against him.
"We are in a position now is any consideration of the invocation of Miranda would be used against my client, at the very least to show either not consciousness of guilt, capacity, when the defense is essentially lack of capacity.
"So I think the jury has got to be told flat out as broadly as possible they are not to consider, they should have not heard of it, and they are not to consider it for any purpose.
"THE COURT: Well, if I had been asked to rule on this in advance, which I wasnt, clearly Mr. Fleck is right that it is relevant on the issue of capacity.
"At the same time it is prejudicial.
"So I think it is a[n Evidence Code section] 352 analysis and I think the court has to decide if the prejudicial effect outweighs the probative value which I think given how the law treats an invocation of right to counsel or invocation of Miranda rights, I think the prejudicial effect outweighs the probative value.
"So I am inclined to strike it from the record and order the jury to disregard it and give them a little speech about it as well.
"MR. SWARTH: To make the record clear I am going to move for a mistrial on this issue.
"THE COURT: Mr. Swarth, you didnt even object. I brought this up or nobody would have noticed it.
"MR. SWARTH: That is not correct.
"I had noticed it, and I was struggling with how to deal with it as well.
"It is not simply a matter itself out there and I should jump up.
"I probably should have jumped up at the time.
"THE COURT: About what, about half an hour later during the break?
"MR. SWARTH: Well, I have on other occasions in this trial attempted to interpose an objection, a question late, and was ruled against. I was late.
"So that didnt seem to me to be an appropriate way to proceed.
"What I had planned on doing was to raise it in a new trial motion if it became a problem.
"THE COURT: Not cure it and now sandbag the court and see if he is convicted and see if he is convicted and get a new trial.
"MR. SWARTH: Please dont use the term sandbag.
"This becomes a problem of law. It becomes a problem of tactics as well.
"I cant simply — I cant forget that I am, you know, I am on a track, and I have to work towards convincing this jury of something through the evidence, and, you know, then I am getting lost here in what I want to say so give me a moment.
"THE COURT: Let me say one thing.
"I asked counsel repeatedly if there is any issues regarding this precisely so we dont have this problem.
"If I had any clue that he had invoked his rights at some point we would have had a hearing about it.
"We would have instructed the officers not to say this.
"But in spite of repeated requests, both attorneys told me there were no issues.
"There were no problems.
"I didnt read the police report to check to see to make sure you were both correct there were no issues and no problems that were going to come up, because this comes up repeatedly.
"Are there any issues that are going to come up.
"You guys need to tell me if there is [an] issue you see in the police report looming on the horizon.
"You cant just tell me we dont need a hearing. We dont need a hearing.
"There is no issue. There is no problem, and then have it come up and then it is a big problem.
"And it is like
"MR. SWARTH: I thought — I have never been in a position where counsel asked a question regarding invocation of rights.
"MR. FLECK: Counsel did not ask that question.
"THE COURT: If you dont want the officer to say it, you have to tell him that before you start.
"He doesnt know that automatically. The question was asked
"MR. SWARTH: Counsel asked a question he shouldnt have asked, and he entered into an area that he shouldnt have gone into.
"I took it on faith that he
"THE COURT: He asked him what happened
"MR. SWARTH: I took it on faith that he should have known not to go there.
"THE COURT: — the officer what happened next. It was right in the middle of everything.
"The officer wouldnt have known to jump over it if nobody told him.
"MR. FLECK: I should have brought this up ahead of the trial, but I just overlooked and forgot about it.
"It is my mistake.
"THE COURT: I dont know what the effect is going to be.
"I am going to instruct the jurors to disregard it.
"So lets go ahead and ask the jurors to come in.
"MR. SWARTH: You are going to, of course, deny my motion?
"THE COURT: Yes. The motion is denied."