Opinion
F060518 Super. Ct. No. BF131066A
12-28-2011
THE PEOPLE, Plaintiff and Respondent, v. GUY WILLIAM HEDEMARK, Defendant and Appellant.
Jeremy Valverde, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge.
Jeremy Valverde, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
This is an appeal from a judgment entered after a jury found defendant Guy William Hedemark guilty of one count of possession of a controlled substance (methamphetamine) for sale, a violation of Health and Safety Code section 11378. Defendant contends the trial court erred in refusing to suppress certain statements defendant made and in overruling defense objections to portions of the prosecutor's argument to the jury. We conclude the trial court did not err. Accordingly, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
On February 9, 2010, Deputy Sheriff Robert Stevenson and a Highway Patrol officer went to a house in Bakersfield to arrest defendant on a traffic warrant and to conduct a probation search. A woman answered the door. Stevenson asked for defendant, who came to the door. There was a large dog at the door. Stevenson asked defendant if the dog bit; defendant told the woman to "put the dog in my room." Stevenson told the woman to hold onto the dog, and he told defendant his purpose for being there. Defendant told Stevenson he could not search without a search warrant. Stevenson said he was going to search defendant's room. Defendant continued to argue and was very angry. Stevenson arrested defendant on the traffic warrant, handcuffed him, and placed him on the living room sofa. After 15 or 20 minutes of defendant saying "you can't go in there, you need a search warrant," and Stevenson repeating that he was going to search, defendant said he did not live there.
The original reporter's transcript is rendered in all capital letters. All quotations from that transcript in this opinion are modified to reflect conventional capitalization.
Stevenson and the Highway Patrol officer searched two bedrooms of the house. In one of the bedrooms, on a dresser, there were two pieces of mail addressed to defendant; one of the items was defendant's telephone bill, dated about 15 days before the search. (There were other items of mail on the dresser but Stevenson did not seize them nor did he recall to whom they were addressed.) They also saw a dog bowl on the floor of the room and male clothing in the closet. In that bedroom, they found 9.58 grams of methamphetamine (in 10 separate baggies), a digital scale, a glass pipe, and a pay-owe sheet.
After defendant was transported to the jail and given Miranda advisements (see Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]), Stevenson asked him about the drugs found in his bedroom. Defendant responded, "I ain't no fucking rat. I'm not going to rat like the person that ratted on me."
Defendant was charged with one count of violation of Health and Safety Code section 11378.
At trial, the court conducted a hearing out of the presence of the jury on defendant's motion to suppress evidence of statements he made to Stevenson at the time of the search, that is, the statements made prior to the Miranda admonition. Defendant contended that Stevenson should have advised him, at the time of his arrest, that anything he said would be used against him so that he would have that knowledge in the event he chose to "blurt out anything or say anything ...." Finding "no evidence of interrogation," the trial court denied the motion. Stevenson testified before the jury concerning his argument with defendant. He said he told defendant he was going to search defendant's bedroom and defendant responded that he could not do so without a search warrant.
Stevenson also testified concerning defendant's post-Miranda statement at the jail: in response to Stevenson's request that defendant tell him about the drugs found in his room, defendant said that he was "not going to rat like the person that ratted on me." Without objection, Stevenson testified that during this interview defendant never said the bedroom in question was not his. On redirect examination, and without objection, Stevenson testified that, in his opinion, the bedroom in question was defendant's for several reasons: defendant tried to keep Stevenson out of the bedroom; defendant's mail was found in the bedroom; the dog's bowl was in the room and defendant had told the woman to put the dog in "my room"; and defendant responded to Stevenson's inquiry about the "drugs found in your room" with the "I'm no rat" statement, but not with a denial that it was his bedroom. Stevenson testified that the first time he heard anything about the bedroom not being defendant's was "here in court."
During her closing argument to the jury, the prosecutor stated: "And you heard Deputy Stevenson tell you that he asked the defendant something related to, tell me about the drugs, or tell me about the items we found in your room. [¶] At no time did the defendant say, it's not my room. At no time [did] he ever say, I didn't stay in that room, I stayed in" a bedroom down the hall. Defense counsel's objection was overruled. The prosecutor repeated this point in her rebuttal argument: In response to Stevenson's inquiry about the drugs in defendant's bedroom, "[w]ouldn't a reasonable person have said ... it's not my bedroom." Defense counsel's objection again was overruled.
Although our record is not completely clear in this regard, defense counsel apparently used a chart during his argument to the jury. The chart apparently contained an array of words describing levels of certainty, such as "suspect," "likely," "probably," and "possibly," in addition to "beyond a reasonable doubt." In her rebuttal argument, the prosecutor stated: "I didn't prepare a colorful chart to show you what is not the law. All those words, probably[,] likely, more likely than not, none of that is the law. It is an attempt to confuse you and to mislead you." Defense counsel's objection was overruled. Subsequently, the prosecutor admonished the jury: "Don't be misle[]d by charts or colors or misstatements of the law." Shortly thereafter, the prosecutor stated: "Don't be fooled. Look past the smoke screens that have been placed in front of you."
The jury found defendant guilty of violation of Health and Safety Code section 11378. The court sentenced defendant to a term of two years in prison.
DISCUSSION
A. Pre-Miranda Statements
Defendant asserts that his statements, that Stevenson could not search because he did not have a warrant, should have been excluded because Stevenson's "statements and actions" were reasonably likely to elicit an incriminating response.
"A defendant who is in custody, as here, must be given Miranda warnings before police officers may interrogate him." (People v. Haley (2004) 34 Cal.4th 283, 300.) Even though it may not be a formal interrogation, a "'practice that the police should know is reasonably likely to evoke an incriminating response from a suspect . . . amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.'" (Ibid., quoting Rhode Island v. Innis (1980) 446 U.S. 291, 301-302, fns. omitted.)
After defendant's arrest and prior to the Miranda admonitions, Stevenson did no more than state, in neutral terms, his reason for being at the premises. Such a statement was not reasonably likely to elicit an incriminatory response. If the statement sought any response at all, it only sought defendant's noninterference in the undertaking. Mere repetition of the statement by Stevenson in the face of defendant's objections to the search did not turn the neutral announcement of purpose into an interrogation.
Even if our conclusion were otherwise, any error in failing to suppress the post-arrest, pre-Miranda statements was clearly harmless: Stevenson made the same announcement of purpose, and defendant made the same response, before defendant was taken into custody. Accordingly, the pre-arrest statements—which were the same as the post-arrest statements—would have been admissible, permitting the jury to draw the same inculpatory conclusions.
B. Doyle Error
Defendant next contends the prosecutor was impermissibly allowed to comment on defendant's invocation of his right to silence, or on his post-Miranda silence, in violation of Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91, 96 S.Ct. 2240]. As far as the present record shows, however, defendant did not invoke his right to silence and was not, in fact, silent; the prosecutor merely argued inferences from what defendant did say in response to Stevenson's questioning. Thus, the prosecutor argued that the statement "I'm no rat" was not what one would reasonably expect to hear from a person who is asked to talk about the drugs found in "his" room if, indeed, that person contended the room was not his.
As a general matter, the prosecutor is permitted "wide latitude to discuss and draw inferences from the evidence presented at trial. '"Whether the inferences the prosecutor draws are reasonable is for the jury to decide."'" (People v. Thornton (2007) 41 Cal.4th 391, 454.) In this case, defendant's response to Stevenson's inquiry—not defendant's silence—was in evidence. The prosecutor was entitled to suggest that the statement made no sense in light of defendant's contention at trial that the room in which the drugs were found was not his. The prosecutor did not commit misconduct by contrasting what defendant actually said with what one would reasonably have expected him to say under the circumstances presented by defendant's theory of the case.
C. Disparagement of Counsel
Finally, defendant contends it was misconduct for the prosecutor to argue to the jury that defense counsel was attempting to "confuse you and to mislead you" through the use of the chart listing various degrees of certainty in human affairs. We reject this contention. "An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper." (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.) Here, the prosecutor merely sought to focus the jury on the proper legal standard of proof. (See also People v. Kennedy (2005) 36 Cal.4th 595, 626-627 ["smoke screen" metaphor not misconduct].)
In his reply brief, defendant contends that there is a difference between an accusation that the defense is trying to "confuse" the jury (which defendant agrees is permissible under case law) and an accusation that the defense is trying to "mislead" the jury, which he claims is impermissible, citing to dictionary definitions that attribute an element of deceit to the latter term and no such element to the former. The cases make no such fine distinction, however. In People v. Cummings, supra, 4 Cal.4th at page 1302, prior to the footnote approving the "attempting to confuse" formulation (quoted above), the court stated that the prosecutor's statements were not misconduct because "the context was such that the jury certainly would understand it to be nothing more than urging the jury not to be misled by defense evidence." We conclude the prosecutor did not engage in misconduct in her discussion of the defense chart.
DISPOSITION
The judgment is affirmed.
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DETJEN, J.
WE CONCUR:
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WISEMAN, Acting P.J.
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POOCHIGIAN, J.