Opinion
A142893
08-16-2017
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ALLEN CURRY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-132439-1)
Richard Allen Curry shot and killed his roommate, Robert Shelley. Shortly after the shooting, Curry told police in a recorded statement that he shot Shelley because Shelley harassed him and "I just can't take any more." At trial, Curry testified that he feared for his life at the time of the shooting. A jury convicted him of second degree murder. Curry argues the trial court erred in admitting his recorded statements and restricting voir dire on aspects of the law of self-defense. We affirm.
I. BACKGROUND
Curry was charged with murder. (Pen. Code, § 187, subd. (a).) It was alleged he personally used a firearm in committing the offense (§ 12022.5, subd. (a)) and personally discharged a firearm in committing the offense, proximately causing great bodily injury or death to Shelley (§ 12202.53, subd. (d)).
Curry and Shelley were residents of a shelter providing permanent housing to homeless adults with mental disabilities. Curry admitted that on December 2, 2012, he shot Shelley in their shared apartment bedroom. Shelley was hospitalized and died about a month later from complications due to his gunshot wounds.
In its case-in-chief, the prosecution presented two recorded statements Curry made to Antioch Police Officer Ryan McDonald shortly after the shooting. On those recordings, Curry said Shelley had been harassing him for months. Shelley ranted and raved and became very emotional when upset. He sometimes smoked PCP or crack and would become paranoid, vocally complaining that a super computer was controlling his mind. Although Shelley frequently slept in the living room, he would come into the bedroom and wake Curry "all night long." He would also come into the bedroom during the day and "slam the drawers and grunt and make all kind of noise. And it goes on all day." Shelley tried to destroy an electronic device Curry relied on to manage a heart condition, and he destroyed about half of Curry's personal property. Shelley never physically attacked Curry or anyone else to Curry's knowledge. He "just always seemed to have, like, an attitude, like, you know, you can't mess with me. I'm . . . an alligator and you're just a little, you know, schmuck that I can push around and bully all I want. I mean, that's kind of like the way he would look at me."
Curry repeatedly asked Shelley to stop harassing him. He also complained to a staff psychologist about Shelley, but neither he nor Shelley was ever relocated. Curry did not think calling the police would change anything. "And I'm not i[n] a situation where I could leave financially." At one point, Shelley told Curry: "[W]ell, if you want me to stop harassing you, I guess you're gonna have to kill me."
On cross-examination, Curry was unable to identify the psychologist.
The prosecution presented evidence that Curry had a monthly income of $2,900, he provided money to his relatives, and while in jail he had asked his brother to research the purchase of a Bowflex exercise machine.
Curry described his feelings on the night of the shooting as, "I just can't take any more"; "after a year of this and after repeatedly asking him to . . . [respect me], that was it"; "he is either gonna kill me from this lack of rest . . . and this campaign he is on or . . . I'm gonna have to defend myself." Curry owned a semiautomatic handgun which he kept on or near his bed for self-defense. Shelley entered the bedroom at about 2:00 a.m. on December 2, 2012, sat on his bed, and reclined. Curry, who was on his bed on the other side of the bedroom, "told him this is a bad move." "I said that's the wrong thing to do. And he ignored me, and I said, well, you know, this is it. . . . I just couldn't stand it anymore." Curry shot Shelley once "in the upper quadrant[, s]omewhere between probably his chest and head," with no intention of killing him. Curry was skilled with firearms and "[i]f I wanted for him never to get up, he wouldn't have." Curry then called 911 to report the shooting and unloaded his weapon.
Curry had suffered three heart attacks and in the weeks before the shooting experienced serious heart symptoms, including severe fatigue, leg swelling, chest palpitations, and sweats. "I watched my health decay over a period of a year, . . . and I was at the point where I really thought I was defending myself, . . . sometimes people can hurt you without ever touching you. [¶] . . . [¶] I just felt like I was defending myself for my life . . . ." When McDonald asked, "[D]id you feel at the moment you shot him that . . . it was a life-or-death situation?" Curry responded: "Was there somebody with a knife at my throat? No." "It was a reflex, you know, fight or flight arrangement. [¶] . . . [¶] And I didn't have the strength to run somewhere . . . ."
At trial, Curry testified was very frightened by Shelley's behavior, which included ranting, prolonged and delusional self-talk, stomping around the apartment, pounding on the wall (including an incident when he punched a hole in the wall), and making threats. He saw Shelley as very dangerous. The night before the shooting, Shelley told Curry he was an alligator and Curry would soon find out what that meant. The comment absolutely felt like a threat to Curry. The night of the shooting, Shelley entered the bedroom with his back toward Curry and moved sideways to the bed, keeping his back toward Curry. He then turned around and Curry could see a small blanket draped over Shelley's shoulder, which concealed his right arm. Shelley sat on the bed and reclined, still facing Curry. Curry thought Shelley would attack and kill him, so he shot Shelley in a reflex action.
The jury was instructed on first and second degree murder, self-defense and imperfect self-defense (i.e., justifiable homicide and voluntary manslaughter), heat of passion voluntary manslaughter, and assault with a deadly weapon. On the second and third days of deliberations, the jury asked questions on the elements of second degree murder and voluntary manslaughter. After considering the court's responses, the jury returned a verdict of not guilty on first degree murder and reported they were hung on whether Curry was guilty of second degree murder or voluntary manslaughter. The court gave the jury an Allen instruction and the jury resumed deliberations. The jury asked further questions about the elements of second degree murder and voluntary manslaughter and finally returned a verdict finding Curry guilty of second degree murder and finding true the allegation that Curry personally discharged a handgun resulting in great bodily injury. Curry was sentenced to 15 years to life for the murder conviction and 25 years for the enhancement, for a total prison sentence of 40 years to life.
See Allen v. United States (1896) 164 U.S. 492; People v. Gainer (1977) 19 Cal.3d 835; People v. Moore (2002) 96 Cal.App.4th 1105, 1118-1123.
II. DISCUSSION
A. Motion to Suppress
Curry argues the trial court erred in denying his motion to suppress the statements he made to McDonald. He argues the statements were gathered during custodial interrogation and the officer never obtained a valid waiver of Curry's right to remain silent and have counsel present during the interrogation. (See Miranda v. Arizona (1966) 384 U.S. 436, 479 (Miranda).) We affirm.
"In reviewing the trial court's denial of a suppression motion on Miranda . . . grounds, ' " 'we accept the trial 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.] Where, as was the case here, an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review." (People v. Duff (2014) 58 Cal.4th 527, 551 (Duff).) The prosecution bears the burden of establishing a valid waiver. (Ibid.)
1. Background
Curry exited the apartment soon after police arrived in response to 911 calls of the shooting. He was handcuffed and placed in the back of McDonald's patrol car. McDonald said, "[T]he 911 reporter [said] that you just wanna get your side of the story. [¶] . . . [¶] . . . [L]et me just read your rights first before I ask you any questions." After recitation of the Miranda warnings, McDonald said:
"Q: Do you understand your rights?
"A: I do.
"Q: Okay. Can you tell me what happened inside the house, your side of the story?
"A: Well, you know, I am going to need an attorney, but I will tell you that I'm just a peace-loving person. I've never hurt anybody in my life. But I've been living at this address for maybe, uh—a little over a year. And . . . he has just been harassing me. I have a—I have a heart condition. A device in my chest, uh, which is necessary, uh, to be monitored by my cardiologist. And, uh, he tried to destroy that. He's . . . just been after me one second after another after another and after another. And we have spoken many times, and I have asked him, you know, will you stop harassing me. I have never done anything to you. And then he—one day he said to me, well, if you want me to stop harassing you, I guess you're gonna have to kill me. And we have had numerous conflicts and . . . he just will not stop doing things that endanger my life. So, uh, finally, you know, . . . it came down to whether or not I thought it was gonna be me or him." (Italics added.)
McDonald then asked, "Can you tell me what got you to that point?" The interview continued for several minutes, followed by a recorded walk-through of the apartment. Curry did not again mention his need for an attorney or express a desire to stop responding to the officer's questions.
The trial court denied the suppression motion. It ruled the statement, "I am going to need an attorney," was not an unequivocal invocation of the right to counsel during custodial interrogation, and there was no Miranda violation in light of Curry's "clear willingness to continue speaking" after making the statement about the attorney. Although remarking that it did not find it "clear-cut," the court found that "on balance, with the burden being a preponderance, that . . . the statement is admissible and Miranda has been complied with."
2. Analysis
" '[A] suspect who desires to waive his Miranda rights and submit to interrogation by law enforcement authorities need not do so with any particular words or phrases. A valid waiver need not be of predetermined form, but instead must reflect that the suspect in fact knowingly and voluntarily waived the rights delineated in the Miranda decision. [Citation.] We have recognized that a valid waiver of Miranda rights may be express or implied. [Citations.] A suspect's expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights. [Citations.] In contrast, an unambiguous request for counsel or refusal to talk bars further questioning. [Citation.]' [Citation.] [¶] Ultimately, the question becomes whether the Miranda waiver is shown by a preponderance of the evidence to be voluntary, knowing and intelligent under the totality of the circumstances surrounding the interrogation. [Citations.] The waiver must be 'voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception' [citation], and knowing in the sense that it was 'made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.' " (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 218-219.)
Curry argues the trial court erred in applying the "unequivocal invocation" test to an initial waiver of Miranda rights at the inception of a custodial interview. Instead, he argues that the test should only be applied following a valid initial waiver of rights. In our view, the court correctly applied the totality-of-the-circumstances test in this context.
Curry relies on the following discussion in Duff: "[B]ecause [the defendant's] reference to a lawyer occurred at the beginning of questioning, the rules respecting pre-Miranda waiver invocations of the right to counsel apply. (See People v. Williams [(2010)] 49 Cal.4th [405,] 427 [inquiries into the initial waiver of the right to counsel and the sufficiency of subsequent postwaiver invocation are distinct]; U.S. v. Rodriguez (9th Cir. 2008) 518 F.3d 1072, 1078-1080 [articulating different rules for police conduct before and after an initial waiver of the right to counsel].) Thus, the postwaiver rule rejecting any duty to clarify ambiguous invocations and permitting an officer to continue substantive questioning ' "until and unless the suspect clearly requests an attorney" ' . . . is inapposite here." (Duff, supra, 58 Cal.4th at p. 553, fn. omitted.) Williams in turn holds: "The question whether a suspect has waived the right to counsel with sufficient clarity prior to the commencement of interrogation is a separate inquiry from the question whether, subsequent to a valid waiver, he or she effectively has invoked the right to counsel. [Citations.] It is settled that in the latter circumstance, after a knowing and voluntary waiver, interrogation may proceed 'until and unless the suspect clearly requests an attorney.' (Davis v. United States (1994) 512 U.S. 452, 461, italics added.) Indeed, officers may, but are not required to, seek clarification of ambiguous responses before continuing substantive interrogation. (Id. at p. 459.) [¶] With respect to an initial waiver, however, '[a] valid waiver need not be of predetermined form, but instead must reflect that the suspect in fact knowingly and voluntarily waived the rights delineated in the Miranda decision.' ([Citation]; see Berghuis v. Thompkins [(2010)] 560 U.S. [370, 385] [Miranda 'does not impose a formalistic waiver procedure that a suspect must follow to relinquish these rights'].)" (Williams, at pp. 427-428.)
Notwithstanding the citation of Berghuis v. Thompkins, supra, 560 U.S. 370 in People v. Williams, supra, 49 Cal.4th 405, there appears to be at least some facial tension between state and federal articulations of the rule. The Berghuis court held that the clear invocation rule of Davis v. United States applies to an invocation of the right to remain silent as well as an invocation of the right to counsel, and implied that a clear invocation is required at any time after a defendant is read the Miranda warnings, not only following a valid initial waiver of rights. (Berghuis, supra, 560 U.S. at pp. 380-381; see United States v. Plugh (2d Cir. 2011) 648 F.3d 118, 123 [Berghuis "clarified that the Davis 'unambiguous[]' invocation standard . . . applies where, as here, a court evaluates an initial rather than subsequent invocation"].) In Berghuis, the defendant refused to sign a written waiver of rights and stayed largely silent during three hours of interrogation. The court held that his actual silence was not an unequivocal invocation of the right to silence. However, the court went on to consider whether a valid initial waiver of rights occurred despite the defendant's failure to clearly invoke, at any time, his right to remain silent. It confirmed that the prosecution bears the burden of establishing waiver and that waiver may be implied from the totality of the circumstances. The Berghuis court noted the defendant's silence (i.e., his equivocal invocation of the right to remain silent) along with the evidence that he understood his rights and ultimately answered an officer's question, and concluded in the totality of circumstances that the defendant waived his right to remain silent. (Id. at pp. 375, 386-387.) "Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." (Id. at p. 384; see id. pp. 382-384.) Duff, Williams, and Berghuis can be reconciled with an understanding that equivocality in a defendant's assertion of Miranda rights at the initiation of custodial interrogation cannot alone establish waiver; however, equivocality remains relevant to an analysis of whether the defendant waived his rights in the totality of the circumstances.
Here, Curry does not dispute that he heard and understood his rights to remain silent and to have an attorney present during custodial interrogation. Nor does he dispute that he failed to expressly waive those rights and that he responded to McDonald's first question with only an equivocal statement that he was "going to" need an attorney. His equivocal statement was not sufficient alone to invoke his rights and require McDonald to cease the interview. Thereafter, Curry never suggested that he wanted to stop talking or that he wanted the assistance of counsel. The trial court on this record could properly conclude that, in the totality of the circumstances, Curry validly waived his Miranda rights before he made the recorded statements and the statements were admissible. Our independent review of the record leads us to the same conclusion. B. Juror Voir Dire
Curry argues the trial court erred in rejecting a series of voir dire questions he proposed about the jurors' feelings about and willingness to follow the law of self-defense. We find no error.
"[W]hile the right to an impartial jury enjoys constitutional protection, the manner of choosing that jury is not similarly endowed." (People v. Cardenas (1997) 53 Cal.App.4th 240, 246-247 [noting that " '[t]he right to voir dire . . . is not a constitutional right but is a means to achieve the end of an impartial jury' "]; see Morgan v. Illinois (1992) 504 U.S. 719, 729 [federal Constitution "does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury"].) The federal constitution "does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice veniremen against him. [Citation.] . . . [T]he State's obligation to the defendant to impanel an impartial jury generally can be satisfied by less than an inquiry into a specific prejudice feared by the defendant." (Ristaino v. Ross (1976) 424 U.S. 589, 594-595, fn. omitted; cf. Ham v. South Carolina (1973) 409 U.S. 524, 527-528 [constitutional error may arise from inadequate opportunity for voir dire about racial bias in a case where racial factors were significant].)
Under California law, the right of counsel to ask specific questions during voir dire has expanded and contracted over the years by statute and judicial decision in an ongoing effort to balance the necessity of ensuring juror impartiality against concerns about judicial economy. (See generally People v. Taylor (1992) 5 Cal.App.4th 1299, 1307-1309.) Currently, Code of Civil Procedure section 223 provides: "In a criminal case, the court shall conduct an initial examination of prospective jurors. The court may submit to the prospective jurors additional questions requested by the parties as it deems proper. Upon completion of the court's initial examination, counsel for each party shall have the right to examine, by oral and direct questioning, any or all of the prospective jurors. The court may, in the exercise of its discretion, limit the oral and direct questioning of prospective jurors by counsel. . . . Examination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause." The trial court has " 'significant discretion with respect to the particular questions asked and areas covered in voir dire. [Citation.] The failure to ask specific questions is reversed only for abuse of discretion. Abuse of discretion is found if the questioning is not reasonably sufficient to test the jury for bias or partiality.' " (People v. Cardenas, supra, 53 Cal.App.4th at p. 247.) " 'It is, of course, well settled that the examination of prospective jurors should not be used " 'to educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law.' " ' " (People v. Abilez (2007) 41 Cal.4th 472, 492-493.)
1. Background
The trial court had each prospective juror fill out a 13-page jury voir dire questionnaire. The first page asked standard questions about family status, employment of family members, prior criminal and civil justice involvement, prior jury service, medical condition, and willingness to be fair and impartial. Later pages asked about gender, age, race, place of origin, language ability, education, community activities related to criminal justice, and attitudes toward law enforcement personnel and defense and prosecuting attorneys. Under the heading, "General Legal Principles," the questionnaire then asked jurors generally if they would set aside their personal beliefs and follow the law as stated in the court's instructions, and specifically whether they would follow the law on the burden of proof, a defendant's right to choose whether to testify, causation, expert witness testimony, and self-defense: "Will you follow the Court's instructions on Self Defense? [¶] ___ Yes ___ No [¶] Please explain."
The court rejected Curry's requests to ask specific questions about the law of self-defense in the questionnaire. The proposed questions elaborated legal principles related to self-defense and asked jurors if they could follow those principles, as well as their reaction to those rules. The legal principles were (1) "Killing another person in self-defense is justifiable and not unlawful when the person who does the killing actually and reasonably believes the following: [¶] There is imminent danger that the other person will either kill him or cause him great bodily injury. [¶] It is necessary to use self-defense that might cause the death of the other person." (2) "If a person actually, but unreasonably, believes that they were in imminent danger of being killed or suffering great bodily injury, and actually believed they needed to immediately use deadly force, the killing must be reduced from murder to manslaughter. This legal concept is known as imperfect self de[fe]nse." (3) "The burden is on the prosecution to prove that Mr. Curry was not acting in self-defense." (4) "A person who is lawfully defending themselves does not have a duty to retreat. In other words, they are entitled to stand their ground."
The prosecutor argued this statement omitted an important element of the defense. Defense counsel conceded that any legal error in the proposed question should be corrected. --------
Defense counsel argued: "I'm not sure how we would be able to determine whether jurors would be able to follow the law unless they know what the law is. Self-defense . . . [is] a concept that many people may not understand how it works in the criminal justice system. [¶] I think one of the biggest examples of that is where the burden rests . . . . [¶] . . . [¶] [P]eople are going to have probably some pretty strong feelings on the concept one way or the other. That's why it's even more important to determine whether or not they are going to come in with a preconceived notion. . . . [T]his is a central part of Mr. Curry's case . . . . [¶] . . . [¶] [T]his notion that it's going to somehow . . . take up too much time, I think is not a very strong argument. Because . . . we're talking about a very important case."
The court disagreed. "[Y]ou are actually saying we need to precondition the jurors on the defense in the case. If it's so important in the case, it has to be covered in voir dire[.] . . . That's what gives me so much trouble. . . . [Y]ou are suggesting every case that's tried, [the] jury [in] voir dire [is] told by the Court or [it is] covered in the questionnaire[] what the central defenses are. [¶] I just don't see the law permitting that. Sure, the Court may have discretion in this area, but I don't know why we would start down this path. . . . There are all kinds of . . . issues we'll be spending a long time on." The court conceded the logic of Curry's argument: "if a person says he or she will follow the law, how can we be sure, unless we tell them what the instruction is[?]" But the court rejected his proposed solution: "We wouldn't ever instruct on all the instructions we expect to be given in a case. The commitment of a juror to follow the law is a solid commitment, and I take it very seriously. When the juror swears that's what he or she is going to do, I accept that." At one point during oral argument, the prosecutor asked for an additional portion of the self-defense instruction be read to the jury if the court accepted Curry's proposed question, and the court observed: "you would like me to read the next paragraph. If I read the next paragraph, I would have to read the [following] paragraph . . . ."
Defense counsel clarified that his broader concern was the scope of questioning during oral voir dire. He argued he should be allowed to inquire into jurors' attitudes regarding the principles of self-defense. The court ruled that if the issue arose a side bar would be held to discuss the extent of permissible inquiry. During individual voir dire, the court and defense counsel followed up with jurors who had responded equivocally regarding self-defense, and at least one juror was excused for cause who indicated he would not follow court instructions on self-defense that were contrary to his beliefs. Curry points to nothing in the record to show that during oral voir dire defense counsel sought to ask any juror more probing questions and was denied leave to do so.
2. Analysis
The trial court did not abuse its discretion in controlling the scope of voir dire. In fact, it was its obligation to do so. (People v. Virgil (2011) 51 Cal.4th 1210, 1246 [" 'trial court . . . has a duty to restrict voir dire within reasonable bounds to expedite the trial' "].) As noted ante, the trial court has " 'significant discretion with respect to the particular questions asked and areas covered in voir dire. [Citation.] The failure to ask specific questions is reversed only for abuse of discretion. Abuse of discretion is found if the questioning is not reasonably sufficient to test the jury for bias or partiality.' " (People v. Cardenas, supra, 53 Cal.App.4th at p. 247.) The court was understandably concerned about being asked, in essence, to pre-instruct the jury, but on the law applicable only to one aspect of the case, and incompletely with respect to that issue. It is " 'well settled' " that is not a proper purpose of voir dire to " ' " 'instruct the jury in matters of law.' " ' " (People v Abilez, supra, 41 Cal.4th at pp. 492-493.) The court instead reasonably focused the written questions on general principles of law likely to test a juror's impartiality in the case, and reserved more probing questions for in-court follow-up with jurors who expressed doubt about their willingness to follow the court's instructions whatever they might be. Significantly, Curry points to nothing in the record to show that he requested greater latitude to directly question any individual juror on principles of self-defense and was denied an opportunity to do so. There was no abuse of discretion. C. Authentication of the 911 Call
Curry argues a recording of Shelley's 911 call was not properly admitted in evidence because the recording was never properly authenticated. We need not address this argument because Curry concedes that, in the absence of other cumulative errors, this error standing alone did not cause him prejudice.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.