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People v. Clawson

Court of Appeals of California, Fifth District.
Nov 12, 2003
F040889 (Cal. Ct. App. Nov. 12, 2003)

Opinion

F040889.

11-12-2003

THE PEOPLE, Plaintiff and Respondent, v. DAVID ROY CLAWSON, Defendant and Appellant.

Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Raymond L. Brosterhous and Justain P. Riley, Deputy Attorneys General, for Plaintiff and Respondent.


Defendant, David Roy Clawson, convicted of voluntary manslaughter with a weapon use enhancement, appeals, contending Miranda (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda)) errors require reversal. He also cites as error the denial of his motion for new trial. We will affirm.

STATEMENT OF FACTS

Rose Davis testified under a grant of immunity that in May 2001, she was living at a residence in Bakersfield with appellant, Everett Thomas, and her cohabitant, Jason Tinsley. Tinsley and Davis had a contentious and abusive relationship. Davis occasionally responded in kind to Tinsleys abuse. According to Davis, Tinsley yelled at her every day. He frequently hit her with his fist, usually in her facial area. During the month of the homicide, Tinsley hit Davis with a bat on one occasion. Davis had told him she was going to defend herself. On another occasion shortly before the homicide, she hit Tinsley in the head with a stick. Two or three days before the homicide, Tinsley had blackened Daviss eye. In response, she held a knife and, according to her, Tinsley "staggered into the knife that I was holding." A friend treated Tinsleys wound.

Appellant had known Davis for about three years and had been living with Davis and Tinsley for approximately five months. Appellant and Tinsley would frequently get into arguments, sometimes over the way Tinsley treated Davis. Sometime after dark on May 18, 2001, appellant and Tinsley drank to excess and got into an argument over Tinsleys treatment of Davis. Tinsley verbally abused Davis and appellant objected to Tinsleys behavior. As appellant and Tinsley argued, Davis left the residence to visit friends at a nearby motel. When Davis arrived at the motel, it appeared that no one was awake and she returned home.

When Davis entered the residence approximately 15 minutes later, she noticed Tinsley lying on his back in the entryway with blood running down his arms. Someone had inflicted nine separate stab wounds on Tinsley that evening. Davis attempted mouth-to-mouth resuscitation but to no avail. Paramedics and law enforcement officers arrived at the scene a short time later.

At approximately 11:30 p.m., Kern County Sheriffs Deputy Juan Trevino and his partner, Deputy Sheriff McCurtain, arrived at the scene and saw appellant leaving the residence. Trevino entered the residence and noticed Davis kneeling next to Tinsleys body. Davis stated, "I dont know what happened. I didnt kill him." Tevino and McCurtain performed cardiopulmonary resuscitation (CPR) on Tinsley until fire and rescue personnel relieved them. Tevino found a kitchen steak knife in the living room of the residence. The blade of the knife was approximately five inches long and covered with blood.

Soon after, Kern County Sheriffs Detective Joseph Giuffre arrived to investigate. Giuffre noticed what appeared to be blood on appellants pants, the back of his head and neck, his hands, and on his forearm. Appellant also had cuts or scrapes on his forearm, neck, left cheek, right collar bone, and left rib area. Davis had blood on her hands. An autopsy revealed a very high blood alcohol level in Tinsley.

Deputies questioned Davis and appellant at the sheriffs department. Appellant initially told deputies that four intruders—two of them wearing ski masks—attacked Tinsley. One of the intruders allegedly shoved appellant and said, "Move whitey or youre next." Appellant moved and the men stabbed Tinsley. Appellant said he gave Tinsley mouth-to-mouth resuscitation and then called 911 about 90 minutes later. Appellant said he thought the intruders were men whom Tinsley had insulted at a gas station a month earlier. The interviewing deputies indicated they disbelieved this story and invited appellant to give a version based on self-defense. Appellant maintained the story was true and repeatedly said he did not kill Tinsley. Appellant did admit he threatened to kill Tinsley two days earlier if Tinsley hit Davis again. However, throughout this interview he denied that he stabbed Tinsley or that Davis did so.

When sheriffs personnel interviewed Davis on the night of the homicide, she indicated she was present at the time of the struggle. The two men fell to scuffling and the next thing she knew, Tinsley was hurt. Davis went to check Tinsley and used a match for illumination because the electricity in the house had been turned off. She yelled at appellant and asked why he had hurt Tinsley. Davis told the deputies about the stabbing incident that occurred a few days before Tinsleys death. She also said she did not want to "rat on" appellant.

Later in the interview Davis furnished more details about the incident. Davis said she and Tinsley arrived home and Tinsley started referring to her as "fuckin cunt, you bitch, &# 8230; slut." When Tinsely started toward Davis, appellant said, "not this time ... you can fight me. I aint Rose." Sometime after appellant made that statement he told Davis that Tinsley might be hurt. Davis could not remember whether she stabbed Tinsley and said if appellant were to accuse her of the act, it might be true.

A few days later, sheriffs personnel conducted additional interviews with Davis and appellant at the sheriffs office. In her interview, Rose Davis said she was not present when the incident occurred. She said she "didnt see him stab him." Davis thought appellant would not have attacked Tinsley and was probably defending himself. In his interview appellant said he and Tinsley had gotten into a fistfight. The fight ended with Tinsley on the floor. Appellant repeatedly said he did not inflict the knife wounds on Tinsley. After the fistfight was over, Davis entered and began performing mouth-to-mouth resuscitation on Tinsley. Appellant admitted the story about the four intruders had been false. He said he made up the story to keep Davis out of trouble. Appellant acknowledged intervening in one of the fights between Tinsley and Davis. Appellant brandished a knife at Tinsley and threatened to cut Tinsleys heart out if he hit Davis again.

Later in the interview, appellant said he had wedged a knife into the door jamb and Tinsley fell back into the knife and was stabbed. However, appellant did not know how Tinsley suffered knife wounds to the front of his body. Appellant said Davis could not have stabbed Tinsley because she was not present. The interviewer asserted the stabber had to have been either appellant or Davis. However, appellant continued to insist that neither he nor Davis committed the offense. Still later in the interview, appellant acknowledged he had been lying to his interviewers and that the truth would put him in jail.

Defense

Appellant testified on his own behalf. He claimed that Davis stabbed Tinsley to death. He admitted having a fistfight with Tinsley earlier in the evening on May 18, 2001. However, he claimed he had fallen asleep only to awake and find Davis climbing off Tinsleys body with a knife in her hand. Appellant further claimed Davis put the knife in his own hand and said, "now finish him." However, appellant did not stab Tinsley. Appellant also testified he told this to Detective Giuffre in their second interview at the sheriffs office.

On cross-examination, appellant acknowledged prior convictions for grand theft and petty theft with a prior petty theft. When questioned in greater detail about the incident, appellant recounted the story he told sheriffs personnel in the second interview. Appellant said he went to sleep after the fistfight only to awaken and see Davis atop Tinsley with a knife in her hand. Appellant said he told Detective Giuffre, during the second interview, about seeing Davis with the knife. Appellant admitted he only told the story of the four intruders because that was what the sheriffs deputies wanted to hear.

DISCUSSION

I. There was no Miranda violation.

Appellant contends the trial court committed reversible error by holding his statements to sheriffs personnel to be admissible absent admonitions under Miranda, supra, 384 U.S. 436.

Statements obtained in violation of this rule cannot be used to establish guilt. Miranda advisements of the right to remain silent are required only when a person is subjected to custodial interrogation. "Custodial" means any situation in which a person has been taken into custody or otherwise deprived of his or her freedom in any significant way. Interrogation refers not only to express questioning but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1160-1161 (Aguilera).)

To determine whether an interrogation is custodial, a trial court must first establish the circumstances surrounding the interrogation. The court must then measure these circumstances against an objective, legal standard: would a reasonable person in the suspects position during an interrogation experience a restraint on his or her freedom of movement to the degree normally associated with a formal arrest. On appeal, we accept the trial courts findings of historical fact if supported by substantial evidence but independently determine whether the interrogation was custodial. (Aguilera, supra, 51 Cal.App.4th at p. 1161.)

Courts have identified a variety of relevant circumstances, including: (1) whether contact with law enforcement was initiated by the police or the person interrogated; (2) if by the police, whether the person voluntarily agreed to an interview; (3) whether the express purpose of the interview was to question the person as a witness or a suspect; (4) where the interview took place; (5) whether police informed the person that he or she was under arrest or in custody; (6) whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the persons conduct indicated an awareness of such freedom; (7) whether there were restrictions on the persons freedom of movement during the interview; (8) how long the interrogation lasted; (9) how many police officers participated; (10) whether they dominated and controlled the course of the interrogation; (11) whether they manifested a belief that the person was culpable and they had evidence to prove it; (12) whether the police were aggressive, confrontational, and or accusatory; (13) whether the police used interrogation techniques to pressure the suspect; and (14) whether the person was arrested at the end of the interrogation. No one factor is dispositive. Rather, a reviewing court looks at the interplay and combined effect of all the circumstances to determine whether on balance they would have created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest. (Aguilera, supra, 51 Cal.App.4th at p. 1162.)

In the instant case, the prosecution filed an in limine motion for admission of appellants statements to deputies, asserting the interview encounters were noncustodial. Sheriffs Detective Joseph Giuffre testified on behalf of the prosecution at the contested hearing on the motion. Giuffre said when he arrived at the scene of the crime, Rose Davis was seated in the back of a patrol vehicle and her demeanor went from cooperative to argumentative to loud to hysterical and then back to calm. Appellant was seated in the back of a different patrol vehicle, which could not have been opened from the inside. He appeared to have been drinking and was hard to understand. Giuffre told Davis and appellant they needed to talk and asked them to come down to the sheriffs office. Davis and appellant agreed and the drivers of their respective patrol vehicles brought them to the office. Patrol officers then placed Davis and appellant in separate interview rooms until interviewing deputies arrived.

To Giuffres knowledge, Davis and appellant were never handcuffed and no weapons were displayed before them, although Giuffre wore a sidearm in his holster. Giuffre first spoke to appellant at the crime scene but appellant only uttered a few words. Giuffre next spoke to appellant at the sheriffs office at about 2:30 a.m. on May 19. Giuffre had previously spoken with Davis at the sheriffs office. When Giuffre spoke to appellant, he provided the latter with coffee or water and escorted him to the bathroom once or twice. Giuffre never put appellant in a holding cell and the detective told appellant he was free to leave before he spoke with him. In Giuffres opinion, the interview was not hostile and appellant appeared to be at ease. Detective Rascoe also interviewed appellant on May 19 and their discussion did not appear "hostile" to Giuffre. After Giuffre was done with the interviews of Davis and appellant, they were photographed and a patrol deputy took them home, asked them to change clothes, and then took the clothes that Davis and appellant wore at the crime scene.

Giuffre spoke to Davis and appellant again at the Elliott Street house on May 22. Sergeant Johnson, a unit supervisor, accompanied Giuffre on the call. Giuffre was dressed in a suit and tie rather than a law enforcement uniform. Sergeant Johnson did most of the talking and asked Davis and appellant to come back down to the sheriffs office. They agreed, sat in the backseat of a sheriffs vehicle, and returned to the sheriffs office. The couple was not handcuffed during this contact. When they arrived at the sheriffs office, the pair was separated and Sergeant Johnson spoke to them first. Detective Giuffre did not detect any hostility in Johnsons interview with appellant. Giuffre spoke to Davis and appellant individually at a later time. When asked whether the pair was free to go, Giuffre said, "We asked them if they would come down, and they were free to go. Just follow-up statements." Giuffre said the round trip transportation of Davis and appellant and their interviews took "probably a couple hours." Appellant was not placed under arrest after his interview.

Sergeant Johnson began the May 22 interviews at the sheriffs office. He spoke to Davis first and then appellant. Appellant and Davis were again seated in separate interview rooms. Appellant stayed at the sheriffs office for several hours. When the interview was done, the deputies took appellant to a place off of Fourth Street to pick up his Social Security check. Then they went to a liquor store on South Chester Avenue where appellant was known. Appellant cashed his check at the store and the deputies took him home. Appellant had consumed some alcohol on May 22 but, in Giuffres opinion, not as much as he consumed on the evening of May 19. On June 1, 2001, Giuffre placed appellant under arrest pursuant to a warrant and gave appellant his Miranda advisements at that time. Appellant made no further statements after receiving the Miranda advisements.

On redirect examination, Detective Giuffre confirmed the interviews of May 19 and 22 were recorded on audiotape and videotape. The transcript of appellants May 19 interview with Detective Rascoe stated in relevant part:

"Rascoe: And wait a minute-, wait a minute, David, wait, just hear me out. And youre saying I didnt do anything but the evidence clearly shows that you did do something. Now, if the evidence shows that you did do something and you tell us exactly what happened cause you had to do it, you were forced to do it, that would be understandable, David, that would be understandable, okay? Cause its gonna be quite obvious, I think you know, its gonna be quite obvious to anybody.

"Clawson: You mean-, are you saying to me, youre saying to me if I dont tell you this (inaudible) and that (inaudible), I-, I dont go home tonight and that.

"Rascoe: Now, say that again?

"Clawson: Youre sayin to me that if I dont tell you (inaudible) I aint goin home tonight.

"Rascoe: Im not-, Im not sayin that, Im not makin any threats to you, David, Im tryin to be man to man here and Im tryin to show you the facts. Im showin you some of the facts, man to man, Im layin `em out on the table and tellin you David.

"Clawson: Am I arrested?

"Rascoe: No. No.

"Clawson: Can I go home?

"Rascoe: Do you want to?

"Clawson: Yes.

"Rascoe: Okay, you dont want to clear this thing up?

"Clawson: Then clear it up.

"Rascoe: Huh?

"Clawson: Clear it up.

"Rascoe: Thats what were tryin to do.

"Clawson: And I wont leave my house either. Ill be there any time.

"Rascoe: Well, thats up to Joe [Giuffre] and well talk to him in just a minute. You know, the detective that was talking to you?"

The trial court ruled that appellant was not in custody; Miranda warnings were not compelled and the statements were admitted.

With respect to the May 19 interview, appellant contends that virtually all of the factors set forth previously for determining an interrogation to be custodial were met.

As noted, ante, we must look at the interplay and combined effect of all the circumstances to determine whether on balance they would have created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest. (Aguilera, supra, 51 Cal.App.4th at p. 1162.) Here, law enforcement did contact appellant but he voluntarily consented to both interviews. Appellant was not placed under arrest before, during, or at the conclusion of either interview. No law enforcement official ever informed appellant to the contrary. He was never handcuffed during the interview process. One of the interviewing officers, Detective Giuffre, said appellant was free to leave during the May 19 interview. While appellant waited to be questioned, the door to his interview room was open to the detective division but no specific law enforcement officer was assigned to guard him.

Although each visit to the sheriffs office lasted several hours, appellant was not interviewed for the entire period on each occasion. Only two law enforcement officers participated in the interviews and, generally speaking, only one officer interviewed appellant at a time. Appellant appeared at ease during the May 19 interview and Detective Giuffre did not consider the atmosphere in the interview room to be hostile. With respect to the May 22 interview, Sergeant Johnson asked appellant to come back to the sheriffs office for an interview and he agreed to do so. Appellant addressed Sergeant Johnson by his first name and Johnson addressed appellant by a nickname. Appellant traveled in a patrol vehicle to participate in the May 19 interview and an unmarked sheriffs vehicle to participate in the May 22 interview. On each occasion, deputies transported appellant home. On May 22, Detective Giuffre even transported appellant to one location to pick up a benefit check and then to another location to cash that check before ultimately taking him to the Elliott Street residence.

Any interview of one suspected of a crime by a police officer will have coercive aspects to it. That is simply by virtue of the fact the officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. However, police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house or because the questioned person is one whom the police suspect. (Aguilera, supra, 51 Cal.App.4th at p. 1165.) Here, the questioning on each occasion was incisive, of moderate length, and relatively detailed in nature. However, the questioning was not conducted in a hostile manner or in a manner to suggest that appellant—or a reasonable person in his position—was deprived of freedom of action in any significant way.

The trial court did not err in granting the prosecutions motion to admit appellants May 19 and 21 statements to sheriffs personnel. We disagree with appellants assertion that Aguilera, supra, 51 Cal.App.4th 1151 compels reversal as the circumstances in Aguilera were egregious and not at all similar to those in the instant case.

II. Appellants motion for new trial was properly denied.

Appellant contends the trial court erroneously denied his motion for new trial based on his counsels conflict of interest, which arose from his acceptance of a job as a deputy district attorney after completion of the trial in the instant case.

Included in the right to effective assistance of counsel is a correlative right to representation free from conflicts of interest. Such conflicts embrace all situations in which an attorneys loyalty to, or efforts on behalf of, a client are threatened by his or her responsibilities to another client or a third person or by his or her own interests. The standard for obtaining relief under the Sixth Amendment based on a conflict of interest depends upon whether the defendant objected to a conflict at trial. Under our state Constitution, the California Supreme Court has applied a somewhat more rigorous standard of review. Regardless of an objection, even a potential conflict may require reversal if the record supports an informed speculation that appellants right to effective representation was prejudicially affected. (People v. Clark (1993) 5 Cal.4th 950, 995.)

A potential or actual conflict of interest, arising when criminal defense counsel has agreed to future employment as a prosecutor, does not taint a defendants conviction where no actual prejudice is demonstrated. (People v. Marshall (1987) 196 Cal.App.3d 1253, 1258-1259.) To assess prejudice, a reviewing court must examine the record and inquire whether counsel "pulled his punches," i.e., failed to represent defendant as vigorously as he or she might have had there been no conflict. (People v. Clark, supra, at p. 995.)

In the instant case, appellant contends Defense Counsel Gutstein was ineffective by failing to seek (a) exclusion from trial of his non-Miranda statements to deputies during the interviews and (b) testing of the fingernail scrapings taken from the body of the victim. Both bases were insufficient to establish actual prejudice. As to the first ground, the prosecutor filed an in limine motion on October 21, 2001, to admit the statements. At the contested hearing on this motion, defense counsel Gutstein examined the interrogating officer at length and argued against the admissibility of the statements. At oral argument on the motion, Gutstein specifically asserted the interview of May 19, 2001 was custodial and that appellant should have been advised of his rights under Miranda.

As to the impact of the fingernail scrapings, defense counsel filed a motion to dismiss the information on September 11, 2001. Counsel argued there was insufficient evidence to link appellant to Tinsleys homicide and that Davis had motive and opportunity to commit the offense. In written opposition, the prosecutor acknowledged that Davis had some blood on her hands and knees but appellant had a large amount on his clothing and person. From these facts, defense counsel could reasonably conclude that appellant had some complicity in the offense and elect not to undermine or destroy his clients only viable defense by demanding DNA analysis.

Further, Defense Counsel Gutstein moved to set aside the information, subpoenaed witnesses favorable to appellants theory of the defense, and helped secure a verdict of voluntary manslaughter, a lesser included offense of the charged crime of murder. Given these facts and circumstances, it is apparent that counsel represented appellant as vigorously as he would have had there been no impending transfer to the district attorneys office.

DISPOSITION

The judgment is affirmed.

WE CONCUR: Vartabedian, Acting P.J., and Cornell, J.


Summaries of

People v. Clawson

Court of Appeals of California, Fifth District.
Nov 12, 2003
F040889 (Cal. Ct. App. Nov. 12, 2003)
Case details for

People v. Clawson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID ROY CLAWSON, Defendant and…

Court:Court of Appeals of California, Fifth District.

Date published: Nov 12, 2003

Citations

F040889 (Cal. Ct. App. Nov. 12, 2003)