Opinion
E066714
06-15-2018
THE PEOPLE, Plaintiff and Respondent, v. NATHANIEL ANTHONY MARSHALL, Defendant and Appellant.
Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Meagan J. Beale and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1401146) OPINION APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed. Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Meagan J. Beale and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
Two police officers entered the home of defendant Nathaniel Anthony Marshall, with his consent. They saw a loaded revolver on a couch. They then found a loaded shotgun in his roommate's bedroom.
While defendant was in handcuffs, the officers asked him whether his fingerprints would be on the firearms. Thereafter, they Mirandized him. In response to further questioning, he said that the firearms belonged to his roommate, but he admitted that he was aware of them and that his fingerprints would be on both of them. Defendant had a previous felony conviction.
After a jury trial, defendant was found guilty on two counts of unlawful possession of a firearm. (Pen. Code, § 29800, subd. (a)(1).) In a bifurcated proceeding, after he waived a jury, a single strike prior allegation was found true. (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).) He was sentenced to a total of four years in prison, along with the usual fines, fees, and miscellaneous orders.
Defendant's sole appellate contention is that, by questioning him without Mirandizing him and then questioning him again after Mirandizing him, the officers used a deliberate two-step interrogation technique in violation of Miranda and its progeny. The trial court, however, found that the officers did not use a deliberate two-step interrogation technique. We will uphold this finding because it is supported by substantial evidence.
Miranda v. Arizona (1966) 384 U.S. 436.
II
USE OF A DELIBERATE TWO-STEP INTERROGATION TECHNIQUE
A. Additional Factual Background.
The following facts are taken from the testimony at the Evidence Code section 402 hearing (see part II.B, post) and from the transcript of the recorded interrogation of defendant.
The transcript was not formally introduced at the Evidence Code section 402 hearing. Defense counsel, however, discussed the contents of the transcript and even asked the trial court to "flip to the second page of the transcript, Line 21 . . . ." The prosecutor likewise discussed the contents of the transcript. We conclude that the transcript was part of the evidence that the trial court considered. --------
Officers Arthur Paez and Derick Spoelstra went to a certain address to investigate possible drug sales. When they arrived, defendant was one of four men outside fixing a fence. Officer Paez asked who lived there; defendant said he did. Officer Spoelstra asked if he was on any kind of supervised release, and defendant said he was on probation. Defendant then gave the officers consent to enter.
As soon as they went inside, Officer Paez saw a gun on a couch. He handcuffed defendant, for purposes of officer safety, while Officer Spoelstra did a protective sweep of the house. Officer Paez then asked defendant who owned the gun. Defendant said it belonged to "Joshua" (one of the other men outside). He asked defendant if he had ever been convicted of a felony. Defendant said yes. He asked defendant if his fingerprints would be on the gun. Again, defendant said yes.
Officer Paez went outside and talked to Joshua. He then went back inside, Mirandized defendant, and questioned him further. This further interrogation was recorded. Defendant made additional incriminating statements, including that the gun belonged to his roommate, not Joshua; that it was on the couch because defendant "was playing with it"; that he was aware of the presence of the shotgun; and that his fingerprints would be on the shotgun, because "I like touching it."
B. Additional Procedural Background.
Defendant moved in limine to exclude his statements to Officer Paez based on Miranda. The prosecution then counter-moved to admit defendant's statements.
The trial court held an evidentiary hearing on the motions. (Evid. Code, § 402.) After hearing argument, it ruled that defendant's statements while he was handcuffed but before he was Mirandized were inadmissible.
After hearing further argument, it ruled that his statements after he was Mirandized were admissible. It found that defendant's statements, both before and after he was Mirandized, were voluntary. It further found no evidence of "a two-part interrogation tactic . . . ." It explained, in part, that "the second interview covers a lot more ground . . . than the three very quick questions that were asked when the defendant was handcuffed prior to Miranda . . . ."
C. Analysis.
The case involves a "midstream Miranda warning" — i.e., a Miranda warning given after a suspect has already made some incriminating statements in response to custodial interrogation, but before the suspect goes on to make more. The leading cases on midstream Miranda warnings are Oregon v. Elstad (1985) 470 U.S. 298 (Elstad) and Missouri v. Seibert (2004) 542 U.S. 600 (Seibert). These cases were helpfully summarized and discussed in People v. Camino (2010) 188 Cal.App.4th 1359:
"Elstad held that a suspect who responds 'to unwarned yet uncoercive questioning' may later waive his rights and confess after being 'given the requisite Miranda warnings.' [Citation.] If the suspect's unwarned statement was voluntary, the 'relevant inquiry is whether, in fact, the second statement was also voluntarily made.' [Citation.] 'As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative.' [Citation.] Elstad did not, however, 'condone inherently coercive police tactics or methods offensive to due process that render the initial admission involuntary and undermine the suspect's will to invoke his rights once they are read to him.' [Citation.]
"In Seibert, an officer 'testified that he made a "conscious decision" to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question "until I get the answer that she's already provided once."' [Citation.] Employing this 'question-first practice' [citation], the interrogating officer left the defendant alone in an interview room at the police station for 15 to 20 minutes, then 'questioned her without Miranda warnings for 30 to 40 minutes, squeezing her arm and repeating' a suggestive, accusatory remark [citation]. After the defendant confessed and was given a 20-minute break, the officer read her the Miranda warnings, resumed the questioning by mentioning their previous conversation, 'and confronted her with her prewarning statements.' [Citation.]
"A divided Supreme Court held the defendant's postwarning statements were inadmissible. [Citation.] Justice Souter's plurality opinion focused on whether 'it would be reasonable to find that in these circumstances the warnings could function "effectively" as Miranda requires' [citation], noting that the giving of midstream Miranda warnings 'without expressly excepting the statement just given, could lead to an entirely reasonable inference that what [the accused] has just said will be used, with subsequent silence being of no avail' [citation].
"Justice Kennedy's concurring opinion expressed his view that the plurality's test, which 'envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations,' was too broad. [Citation.] Justice Kennedy noted that in Elstad, 'the postwarning statements could be introduced against the accused because "neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression" given the facts of that case.' [Citation.] With these goals in mind, Justice Kennedy observed that a deliberate two-step technique intended to violate Miranda did 'not serve any legitimate objectives' and presented inherent temptations for police abuse (such as the use of a defendant's prewarning statement to obtain an incriminating postwarning statement). [Citation.] Justice Kennedy concluded: 'I would apply a narrower test applicable only in the infrequent case . . . in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.' [Citation.] 'If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. [Citations.] Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient.' [Citation.] Because Justice Kennedy 'concurred in the judgment[] on the narrowest grounds' [citation], his concurring opinion represents the Seibert holding." (People v. Camino, supra, 188 Cal.App.4th at pp. 1368-1370, fns. omitted.)
In determining whether the police deliberately used a two-step interrogation strategy, "'courts should consider whether objective evidence and any available subjective evidence, such as an officer's testimony, support an inference that the two-step interrogation procedure was used to undermine the Miranda warning.' [Citation.] 'Such objective evidence would include the timing, setting and completeness of the prewarning interrogation, the continuity of police personnel and the overlapping content of the pre- and postwarning statements.' [Citation.]" (People v. Camino, supra, 188 Cal.App.4th at p. 1370.)
"'In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under Miranda . . . , the scope of our review is well established. "We must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained."' [Citation.] '"Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we '"give great weight to the considered conclusions" of a lower court that has previously reviewed the same evidence.'"' [Citation.]" (People v. Camino, supra, 188 Cal.App.4th at pp. 1370-1371.)
The trial court's finding that the officers did not deliberately use a two-step interrogation technique is a factual finding that we review under the substantial evidence standard. (People v. Camino, supra, 188 Cal.App.4th at pp. 1371-1372.)
Officer Paez's initial three questions were narrowly focused on whether any crime had been committed, and if so, by whom. As the prosecution argued below, "[H]e does not know who that gun belongs to. He doesn't know who's been touching that gun or been in possession of that gun, because, as we know, there were . . . three or four other men outside . . . ." The questioning was brief and far short of complete. Although Officer Paez handcuffed defendant, he did so for officer safety purposes, not because defendant was already a prime suspect. Indeed, after defendant said the gun belonged to Joshua, Officer Paez went outside and talked to Joshua.
Only then did Officer Paez's suspicions crystallize around defendant. He turned on his recorder and conducted a formal interrogation. It seems reasonable to conclude that, before then, he had no plan of conducting a two-step interrogation.
In the post-Miranda interview, Officer Paez referred back to the pre-Miranda interview only once. After Mirandizing defendant, he started the actual questioning by saying, "Here's my concern with what's going on here today. The firearm[,] as I mentioned before[,] I mean you said your prints are gonna be on there[,] is that correct?"
In Seibert, the interrogating officer described his two-step interrogation technique as "question first, then give the warnings, and then repeat the question 'until I get the answer that she's already provided once.'" (Missouri v. Seibert, supra, 542 U.S. at p. 606.) "He acknowledged that [the defendant's] ultimate statement was 'largely a repeat of information . . . obtained' prior to the warning. (Ibid.)
Seibert held that, in this context, midstream Miranda warnings could not be effective. (Missouri v. Seibert, supra, 542 U.S. at pp. 611-612.) It added that the "manifest purpose" of a deliberate two-step interrogation technique is "to get a confession the suspect would not make if he understood his rights at the outset; the sensible underlying assumption is that with one confession in hand before the warnings, the interrogator can count on getting its duplicate, with trifling additional trouble." (Id. at p. 612.)
Here, by contrast, Officer Paez's reference back to the pre-Miranda questioning was simply an explanation for why he was interrogating and recording defendant. He did not try to get defendant to repeat the information he had already given. Rather, he went on to elicit new and additional information. As the prosecution aptly argued below, "[I]t's not a situation where you have an officer . . . bringing someone to a station, getting them to give a confession, and then turning on a recorder and being like, 'You just told me this; right? And this; right? And this; right?'"
Defendant emphasizes the fact that both interviews were conducted by the same officer at the same place and more or less back-to-back. Even so, there was a patent shift in the purpose of the questioning. In any event, the issue before us is whether there is substantial evidence to support the trial court's ruling. And there was. The fact that there was some arguably contrary evidence does not change this.
The single case that defendant puts forward as similar to this one is United States v. Barnes (9th Cir. 2013) 713 F.3d 1200. There, however, while the defendant was in custody (id. at pp. 1204-1205), FBI agents told him that they knew he had participated in a drug transaction. They also played part of a recorded phone call between him and an accomplice. The defendant admitted that he remembered the transaction. Only after that did they Mirandize him. (Id. at p. 1203.) One agent admitted that they did not Mirandize him immediately because that would have made him less willing to talk. (Id. at p. 1205.) Here, by contrast, Officer Paez had not already decided that defendant was guilty and had no preconceived plan to question defendant before Mirandizing him.
Defendant does not argue that any of his statements were involuntary. It therefore follows that there was no violation of the principles stated in Miranda, Elstad, and Seibert.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.