Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 154887
Pollak, Acting P. J.
Defendant Monterrio Davis appeals his conviction by a jury of three counts of murder and several related felonies and enhancements arising out of a one night robbery spree committed by defendant with several other members of the so-called Nut Case Gang. His sole contention on appeal is that the trial court erroneously admitted statements that he assertedly made involuntarily during an extended interrogation at the Oakland Police Department. We disagree and shall affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
The Crimes
Since no issue is presented concerning the sufficiency of the evidence, an abbreviated summary of the facts established by the trial testimony is all that is required to consider the issue raised on appeal. On the evening of February 18, 2003, defendant and three fellow gang members, Louis Montgomery, Shawn Wyatt, and Donnie Mitchell, were driving in Oakland, smoking marijuana. When they realized they needed gas, defendant suggested they rob someone to obtain the money for the gas. After identifying two individuals on a street corner, defendant pulled over and with one of the other passengers, robbed the two victims at gunpoint. Defendant shot the first victim, causing the second victim to flee. Defendant ran after the second victim who another gang member caught and tripped. After a struggle, defendant shot the second victim. The group used a credit card from the wallet of one of the victims to purchase gas. Both victims died as a result of the shootings.
Later that night, the group went out again and attempted to commit another robbery. After defendant pointed out the third victim, Mitchell attempted to rob him, and eventually shot the victim, gravely injuring but not killing him.
Still later, defendant dropped off Montgomery and Wyatt and was joined by two other friends, Joven Bowen and Demar Antwone Lacy, and the four drove to San Francisco where they attempted to rob a fourth victim. Defendant was in the car nearby when the fourth victim was shot and killed.
The Interrogation
After a great deal of media coverage surrounding these incidents, on the morning of February 21 defendant was arrested for violating the conditions of parole by smoking marijuana. Sergeant Tim Nolan, lead investigator on the Oakland shootings, testified that defendant’s arrest was prompted by the desire to question defendant in connection with the multiple homicides. Nolan informed the jail sergeant that defendant and Louis Montgomery and Donnie Mitchell, who also had been arrested and were being questioned, were to be separated while in custody.
Shortly after being booked at the Oakland jail, at 11:20 a.m., defendant was transported to a station of the Oakland Police Department, where he was placed in a locked windowless interrogation room approximately eight-feet square, containing a table and three chairs. Defendant was intermittedly interrogated in this room in three sessions over the course of four or five days. Over this period he was in the room for what we construct from the record to have been approximately 25 hours, during which time he was questioned for about six and a half hours. Defendant was questioned by Sergeant Nolan, sometimes accompanied by either Sergeant Brock or Sergeant Green.
When Nolan entered the interrogation room at 2:14 p.m., approximately three hours after defendant was first brought there, defendant was advised of his Miranda rights. Nolan read the rights to defendant, asked him if he understood those rights, and defendant stated that he did and was willing to speak to the police. Defendant then initialed a form, confirming his understanding and waiver of those rights. According to the officers, defendant did not appear to be under the influence of drugs, despite having been picked up for smoking marijuana several hours earlier. He appeared conscious and alert and did not seem to be sick or injured.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
The police began their interrogation without the use of a tape recording device, because Nolan felt that tape recordings could have a chilling effect on a suspect’s willingness to speak candidly, but portions of the interrogation were recorded and ultimately played to the jury. During the taped portions of the interrogation, defendant confirmed testimony about what occurred during the untaped portions. Defendant confirmed that he was read his rights, that he was never threatened or forced to speak, and that his state of mind was clear.
A log was maintained, reflecting each entry into and departure from the room, as well as the times when meals, water, and bathroom breaks were provided. This record reflects cigarette breaks, significant periods when defendant was left alone in the room, and periods when defendant was returned to the Oakland jail. There is no indication that defendant ever requested to speak with an attorney or anyone else, asked the officers to terminate the interrogation, or complained that he was being mistreated.
The first interrogation session was the longest, lasting nearly 17 hours from the time defendant was placed in the interrogation room at 11:20 a.m. until 4:00 a.m. the following morning. The police log reflects numerous breaks during this period, many of which lasted several hours. During this 17-hour period, it appears that defendant was questioned for approximately four hours. Defendant was given several cigarette breaks, a meal break for a sandwich, juice and an apple, and a bathroom break shortly after his meal. During one break, defendant fell asleep in the room. Defendant was asked repeatedly whether he wanted a break, food or anything else.
After defendant was returned to the jail early in the morning of February 22, he was not questioned for the next 36 hours, until 4:34 p.m. on February 23. Shortly after he arrived in the interrogation room on that occasion, defendant was given a McDonald’s meal and left alone to eat for the next 20 minutes. Defendant was again advised of his Miranda rights and again verbally consented to speaking with the officers. When the tape recorder was turned on a half hour later, defendant again stated that he had been informed of his rights and was willing to speak, and he initialed the same Miranda form he signed during the first session. At around 8:50 p.m., defendant indicated he was tired and would like to sleep. Shortly thereafter, the police returned him to jail.
After 24 hours, at 9:18 p.m. on February 25, defendant was returned to the interrogation room for the third and final time. He was again advised of his Miranda rights and waived them. Defendant was questioned for a short period of time and was returned to the jail four hours after being brought to the interrogation room.
Over the course of the interrogation, defendant was questioned about the February 18 events. While he made several admissions that proved damaging at trial, at no point did he admit responsibility for any of the shootings. He admitted that he was present on the night of the murders, that he knew he was traveling with several members of the Nut Case Gang, that he knew that at least one member of the gang was armed with a.32 caliber handgun, and that he knew the group was going to commit robberies. He admitted to being at the scene when the murders took place, but insisted that either Montgomery or Wyatt had been the actual shooters.
The criminal proceedings
Defendant was charged by information with three counts of murder (Pen. Code, § 187, subd. (a)), one count of attempted second degree robbery (§§ 211, 664) and one count of attempted murder. Two counts included enhancement allegations for personally and intentionally discharging a firearm resulting in death (§ 12022.53, subd. (d)) and three counts included an enhancement for being armed with a firearm. (§ 12022, subd. (a)(1)). The three murder counts alleged felony murder as a special circumstance (§ 190.2, subd. (a)(17)(A)) and a multiple murder special circumstance. (§ 190.2, subd. (a)(3)). It was also alleged that defendant had a prior prison term conviction. (§ 667.5, subd. (b).)
All statutory references are to the Penal Code.
Defendant was also charged with one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)), but this count subsequently was dismissed by the prosecution.
Defendant moved before trial to exclude the statements he made to the police as involuntary and taken without a knowing and intelligent waiver of his Miranda rights. After an evidentiary hearing, the court denied the motion with the following explanation: “I find that the statements made by the defendant to the police, in particular all of the taped and nontaped statements, were made after the defendant was properly advised of his constitutional rights pursuant to Miranda, and that he understood those rights, and that he voluntarily waived those rights and voluntarily spoke with the police.” Evidence of the statements, including tapes of the interrogation, was received at trial and defendant was found guilty of all counts, enhancements and allegations. Defendant was sentenced to three terms of life imprisonment without possibility of parole, a term of 65 years to life, and a term of six years, all to be served consecutively. Defendant timely filed a notice of appeal.
DISCUSSION
“In reviewing constitutional claims of this nature, it is well established that 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.” (People v. Storm (2002) 28 Cal.4th 1007, 1022-1023.)
Defendant asserts that his waiver of Miranda rights and all of the statements he made during the interrogation were given involuntarily. He argues that “the repeated interrogation sessions, the small interrogation room in the homicide section of the police department, and the lengthy delays between portions of the interrogation session[s]” constituted an “inherently coercive” interrogation. A confession, including incriminating statements less than a full confession, are of course inadmissible if obtained by compulsion or inducement. (Haynes v. Washington (1963) 373 U.S. 503, 513.) A confession is admissible only if it is “ ‘ “the product of a rational intellect and free will.” ’ ” (Mincey v. Arizona (1978) 437 U.S. 385, 398.) Whether a statement was made voluntarily is evaluated in light of the “totality of the circumstances,” looking to, among other facts that may be pertinent, the length of interrogation, its location, the defendant’s maturity, physical condition, and mental health. (Withrow v. Williams (1993) 507 U.S. 680, 693; People v. Massie (1998) 19 Cal.4th 550, 576.)
In Miranda, the Supreme Court expressed concern about interrogations that have “the required intervals for food and sleep, but no respite from the atmosphere of domination.” (384 U.S. at p. 451.) However, to determine whether the defendant was questioned in an atmosphere of domination, the court must examine the specific circumstances surrounding the interrogation, including the characteristics of the accused and the conditions of the interrogation. (People v. Memro (1995) 11 Cal.4th 786, 826.) The voluntariness inquiry “does not turn on any one fact, no matter how apparently significant, but on the ‘totality of circumstances.’ ” (People v. Neal (2003) 31 Cal.4th 63, 79.)
There is no mechanical test to determine when questioning must cease or when an “atmosphere of domination” has been created. As indicated in Neal, the length of the interrogation cannot be viewed in isolation. The ultimate question is not how long the interrogation lasted, but whether the circumstances, including the length of the questioning, overwhelmed the free will of the suspect. Here the record makes plain that defendant spoke with the police officers freely and voluntarily, fully aware of the rights he was waiving by doing so. Defendant is an adult not shown to have been other than in full possession of his faculties, and with prior experience in the criminal justice system. Although his questioning extended over a period of several days, and the first session lasted some 17 hours, there were numerous extended interruptions and defendant was given many opportunities to eat, smoke, rest and take personal breaks. The questioning extended for only a relatively small portion of the time spent in the interrogation room. Defendant was repeatedly advised of his Miranda rights and he repeatedly waived them. At no point did he complain about the questioning, ask that it be terminated, or request an attorney. He was at the time in custody for violating the terms of his parole, so that the questioning did not prevent him from pursuing other activities in which he otherwise would have been engaged. So far as the record indicates, defendant may have preferred sitting in the interrogation room to being held in the jail, over-estimating his ability to convince the officers that he bore no responsibility for the murders.
Defendant intimates that something untoward may have happened during the interrogation because much was unrecorded. However, defendant neither alleged nor presented any evidence of any mistreatment or coercive methods utilized during the periods in which the sessions were unrecorded. The failure to have recorded the entire interrogation may have rendered the police vulnerable were the defendant to have claimed that coercive techniques were employed when the recorder was off, but defendant has made no such claim. Defendant’s contention that the lack of a recording added to his sense of isolation is both questionable and insufficient to show that his statements were the product of unlawful coercion. From the recordings that were made and presented in evidence, there is no sign of raised voices or other forms of intimidation. To the contrary, when the recorder was activated, defendant confirmed that he was being treated properly and wished to make the statements he gave to the police.
The cases defendant cites where the length of an interrogation rendered an admission involuntary are clearly distinguishable. In Davis v. North Carolina (1966) 384 U.S. 737, 739, the defendant was interrogated in an isolated location for 16 days. According to the United States Supreme Court, “So far as [the defendant] could have known, the interrogation in the overnight lockup might still be going on today had he not confessed.” (Id. at p. 752.) Moreover, the defendant in Davis had a fourth grade education and was never advised of his Miranda rights. (Id. at pp. 739, 742.) Other cases deal with “relay” questioning, in which the police questioners relieve each other to give themselves a break from stifling conditions while giving the defendant no respite. (Harris v. South Carolina (1949) 338 U.S. 68, 69-70.) In Harris, a suspect was subjected to relay questioning by five officers in a hot cubicle with very few breaks over a period of three days. (Id. at p. 70.) Moreover, the interrogator threatened to arrest the suspect’s mother if he did not confess, and failed to inform the suspect of his rights. (Id. at pp. 70-71.) Similarly, in Ashcraft v. Tennessee (1944) 322 U.S. 143, 149, a suspect was interrogated continuously for 36 hours with only a five minute break before confessing.
The circumstances of defendant’s interrogation do not come close to the coerciveness of the questioning in Davis, Harris or Ashcraft. While several officers were involved in the interrogation, the defendant was not subjected to “relay” interrogation. Sergeant Nolan was present at each session, accompanied by either Sergeant Brock or Sergeant Green on two occasions. While the defendant was in the interrogation room for extended periods, he was not interrogated continuously during that time and was given several breaks of many hours. He was provided meals, cigarettes and breaks when he requested them. Between the first and second days of interrogation, defendant was taken back to his cell for a 36-hour break, and the third session involved little more than a half hour of actual questioning. On each day, defendant was advised of his rights, and given the option of declining to speak with the police officers or to request the advice of counsel. We find in the record absolutely no indication that defendant was improperly coerced or that his statements were not made knowingly and voluntarily. The trial court properly denied the motion to suppress the statements defendant made during his interrogation.
DISPOSITION
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.