Opinion
E032265.
11-4-2003
THE PEOPLE, Plaintiff and Respondent, v. RONNIE STEVEN MARTIN, Defendant and Appellant.
Jill M. Bojarski, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Raquel M. Gonzalez, Supervising Deputy Attorney General, and Quisteen S. Shum, Deputy Attorney General, for Plaintiff and Respondent.
Defendant was convicted of first degree murder and child endangerment. The jury found he personally used a knife in the murder. It also found true a special circumstance allegation that the murder involved the infliction of torture. The court sentenced defendant to seven years plus life without parole.
We affirm the judgment.
I
FACTUAL BACKGROUND
Defendant met Dawn Norris in 1993 or 1994, and eventually they were married. The couple had intense and violent arguments and separated seven or eight times over the years. In 2001, they divorced, though they continued to see each other and, according to defendant, planned to remarry and have a child together.
A. Prosecution Case
1. The homicide
During the last week of June 2001, defendant argued with Norris about her seeing other men. He also complained to a witness about Internet dating advertisements Norris had placed. Defendant blamed one of Norriss friends for introducing her to other men and said the friend "was just a tramp and she would get hers."
On Wednesday, June 27, 2001, Norris ordered defendant to stay away from her residence. A friend of defendants who was present when this occurred testified she had never seen him so upset. On the morning of Friday, June 29, 2001, Norris told a woman who had been caring for Norriss children that defendant was not allowed to have the children, and if the caretaker saw defendant, she was to lock the doors and tell him she was calling the police.
On the afternoon of June 29, a witness saw an African-American man in the parking lot of a Carls Jr. restaurant heatedly talking on a pay phone and saying repeatedly in a loud voice, "You be there." The man got into a red Chevrolet pickup truck and drove away. As he did so, he put on surgical gloves.
Shortly after 5:00 p.m. that day, a resident of an apartment complex near the Carls Jr. restaurant saw an African-American man standing next to a sport utility vehicle parked at the entrance to the complex. The man was arguing with a woman who was in the vehicle.
Residents heard honking and a female voice yelling or screaming from the direction of the vehicle. The African-American man who had been standing outside the vehicle was inside it, making thrusting motions. The woman exited the vehicle, fell to the ground, and then got up. The man came after her and began stabbing her with a knife. He stabbed the woman repeatedly as she lay on the ground. The assailant ran to a red Chevrolet pickup truck and drove away.
The victim, later identified as Norris, was pronounced dead at the scene. She had sustained 40 wounds caused by a sharp instrument, most likely a knife. Twelve of the injuries were life-threatening.
Based on descriptions of the assailant and his truck given by residents of the apartment complex, the police apprehended defendant in a shopping center parking lot. Defendant was standing next to a red Chevrolet pickup truck. A resident of the complex was taken to the parking lot and identified defendant as the assailant.
2. Statements of defendants nephew and niece
Defendants 11-year-old nephew and nine-year-old niece were with him when he was apprehended. The children told the police that defendant had picked them up at their house that afternoon and had driven them around in his truck. Defendant said he was going to look for a house to break into so he could get a gun to kill his wife. Defendant decided against that, so he was going to go to a hardware store to get some acid to throw on his wife. Defendant decided against that as well, so they went to a hardware store, where defendant purchased a knife, about 10 inches in length.
Defendant took the children to Kaiser Hospital and picked up some medicine, then to defendants apartment, and then to Carls Jr. to get something to eat. From there they went to an apartment complex where they saw Norris in another car. Defendant reached into Norriss car as if he were choking her. There was a very loud scream as if Norris were hurt. Defendant came back to the truck with blood on his hands. Norris was hanging half in and half out of her car, with the blood draining from her body.
Defendant and the children drove away from the complex. Defendant told the children they were going to be his alibi.
The children directed the police to several locations where defendant had disposed of clothing, gloves, and the knife after they left the apartment complex. The knife was of a size and shape consistent with the wounds Norris had sustained. With the discarded items, the officers also found a business card for a doctor at Kaiser Permanente Medical Group. A prescription for defendant, written by the doctor, was in defendants truck. The drivers door, steering wheel, and gear shift of the truck tested positive for blood.
3. Defendants statements to police
Defendant was taken into custody and interviewed at the police station. At first he denied any involvement in Norriss murder. After being confronted with what the children had told the police, defendant admitted purchasing the knife and arranging to meet Norris at the apartment complex. Defendant said he approached Norris with the knife to scare her, because she had been putting pressure on him for money and had threatened to call the police on him.
According to defendant, when Norris saw the knife she told him if he was going to use it, to go ahead. She spat in his face and called him a "punk mother fucker, youre a pussy, words to that effect." Defendant "lost it" and began stabbing Norris. He did not recall anything from that point on. He returned to his truck and left the scene. He disposed of the knife, gloves, and clothes on the way to his brothers house.
B. Defense Case
As will appear, defendants account of the killing and the events leading up to it confirmed in most respects the evidence the prosecution already had presented in the form of the childrens statements to the police and other evidence. We summarize defendants testimony separately to provide a context for discussion of his contention, discussed in part II.C.4, post, that the jury might have believed his testimony that he never intended to kill Norris had the prosecution not been allowed to undercut his credibility by introducing his pretrial statements to the police.
Defendant testified at trial as follows: In June 2001, he still loved Norris. However, he learned she did not share his feelings. She commented on his dark skin color and made fun of his high-pitched voice and body hair. She also considered herself smarter than defendant because she had graduated from college and he had not. Basically she just felt she was better than defendant.
Defendant filed for divorce in December 2000. He tried to stop the divorce before it became final but was unsuccessful.
In June 2001, defendant went to Las Vegas with Norris. They decided to remarry and have a child. However, during the last week of June defendant became upset when he discovered Norris had put a dating advertisement on the Internet. He went to Norriss house to return some clothes to her, but they got into an argument, and she ordered him off the property.
On the morning of June 29, defendant called Norris to discuss their car insurance. She accused him of "keying" her car two days earlier when he left her property. Defendant denied it, but she "argued [him] down . . . ." Norris said if defendant did not sign a paper admitting he had damaged her car, she would call the police and have him arrested. Defendant agreed to sign the paper even though he had not damaged the car because there was an order prohibiting him from having negative contact with Norris, and he was afraid if he didnt sign the paper she would call the police, and he would go to jail.
Defendant became depressed and called the Kaiser suicide hotline. He scheduled an appointment for 4:00 p.m. that day. Defendant decided to spend the day with his nephew and niece because he thought that would pull him out of his depression. He went to his brothers house and played video games with the kids, which made him feel somewhat better.
Defendant called Norris about 12:30 or 1:00 p.m. She told him she was pregnant by another man. Defendant felt like he had been hit by a truck. He cried for 20 or 25 minutes while he watched the kids play video games.
Defendant went to get a money order to give to Norris to cover his share of their car insurance. He took the kids with him. As they drove around, defendant told the kids he was going to throw acid on Norris, but he realized it was a stupid idea. He also told the kids he was going to break into somebodys house and steal a gun and shoot Norris, but he was just "blowing off steam" and was not serious. He went to Kmart and bought a knife because he planned on killing himself.
The kids wanted defendant to spend the night with them, so he went home to get a change of clothes. Then he went to Kaiser for his appointment. The doctor gave him a prescription for Paxil and told him to come back in 30 days. Defendant was in a daze, because he had been hoping the people at Kaiser could help him with what he was going through and couldnt believe he was told to come back in 30 days.
The kids wanted something to eat, so defendant drove to Carls Jr. He had arranged to meet Norris at Kaiser to give her the insurance money. While the kids were in the restaurant, he sat in the car and started crying. He felt his life was over. He pulled the knife out and stuck it to his stomach, intending to push it in. However, the kids came back to the car, and he put the knife away.
Norris paged defendant on her cell phone, and he spoke to her on a pay phone. She asked him about the money and asked to borrow another $50. Defendant told her he was tired of their "up and down" relationship. As he spoke to Norris, he saw her driving by on the street, and they arranged to meet at the apartment complex. Defendant was going to give her the money and ask her to give him one more chance.
As he drove away from the restaurant, defendant put on a surgical glove, which he had for use in his job as a painter. His nephew asked what he was doing. Defendant said he was "tripping" and took the glove off.
Defendant drove to the complex, parked, and approached Norriss car. She opened the door, and he got in and gave her the money. He asked whether Norris was going to give him a second chance. She asked whether defendant was going to give her the additional $ 50. Defendant told her no.
Norris took on an angered look. Defendant asked her again for another chance. She said, "[H]ow fucking stupid are you?" He took the knife from his pocket and put it to his throat. He was going to kill himself because she didnt want to be with him, and he didnt want to be alive if he couldnt be with her.
Norris looked at defendant and said he didnt have the balls. She told him if he didnt kill himself, she was going to tell the police, and he was going to go away for a long time. She said, "[Y]oure a sorry punk mother fucker nigger" and spat in his face.
Defendant did not remember what happened after that. When he "came to," he saw Norris outside her car, lying there and bleeding. He saw blood on his hands and on the knife. He ran to his truck and told the kids he thought he might have hurt Norris. He drove off. He was scared and figured he had to get rid of everything.
Defendant changed clothes and tried to get rid of the clothes and the knife by throwing them away. He saw a helicopter and heard sirens. He pulled into a parking lot and told the kids to get out and sit on the curb.
Defendant testified he decided to stab Norris when she spit in his face. He denied he ever planned to hurt or kill her. He stated his intention was to try to get back with Norris and, if he did not do that, to take his own life.
2. Additional defense evidence
In addition to his own testimony, defendant presented testimony of family members and mental health professionals who described his emotional problems and, in some cases, his distress over his relationship with Norris. Defendant also presented testimony of Norriss best friend. She stated Norris had told her she was not attracted to defendant because he was too black for her, and she thought he was very feminine. Norris constantly expressed feelings of being ashamed of defendant and said she did not want to be seen with him.
II
DISCUSSION
A. Sufficiency of Evidence of Torture Murder
First degree murder includes murder perpetrated by "torture, or by any other kind of willful, deliberate, and premeditated killing . . . ." (Pen. Code, § 189.) The prosecution proceeded on theories of both torture and premeditation on the first degree murder charge in this case.
Defendant claims there was insufficient evidence to support the torture theory, because the evidence did not show he acted with the intent to inflict extreme and prolonged pain. He further contends that since the jury did not indicate which theory, torture or premeditation, it relied upon in finding first degree murder, the finding cannot stand because it is reasonably probable some or all jurors may have relied solely on the torture theory.
The California Supreme Court has stated: "[W]hen a prosecutor argues two theories to the jury, one of which is factually sufficient and one of which is not, the conviction need not be reversed, because the reviewing court must assume that the jury based its conviction on the theory supported by the evidence. [Citations.]" (People v. Seaton (2001) 26 Cal.4th 598, 645.) Thus, "the appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory." (People v. Guiton (1993) 4 Cal.4th 1116, 1130.)
Here, the premeditation theory was sufficiently, in fact compellingly, supported by the evidence. Defendants conflicts with and anger toward Norris in the days just before the killing provided a clear motive for him to want to kill or injure her. The afternoon of the killing, defendant discussed extensively with the children his plan to kill Norris and how he might accomplish it. He purchased the knife, put on surgical gloves, and arranged to meet Norris in the parking lot. Once there, he entered her vehicle with the knife and attacked her with it, pursuing and continuing to stab her a total of 40 times until she was dead.
Defendant, in fact, does not deny there was substantial evidence to support a premeditation theory of first degree murder. Instead, he contends the evidence of premeditation, though sufficient to support first degree murder on that theory, was equivocal, because it also was consistent with the conclusion that he did not plan in advance to kill Norris but only exploded in rage when she goaded him beyond his limits. Therefore, defendant concludes, there is a reasonable probability one or more jurors found first degree murder solely based on torture.
In both Seaton and Guiton, however, the California Supreme Court stated that where a factually supported theory exists, the reviewing court normally must assume the jury relied on that theory. (People v. Seaton, supra, 26 Cal.4th 598, 645 ["the reviewing court must assume that the jury based its conviction on the theory supported by the evidence"]; People v. Guiton, supra, 4 Cal.4th 1116, 1127 ["if there are two possible grounds for the jurys verdict, one unreasonable and the other reasonable, we will assume, absent a contrary indication in the record, that the jury based its verdict on the reasonable ground"].) In Guiton, the court further explained the kind of showing that would be required to dispel the assumption: "We may, for example, hypothesize a case in which the district attorney stressed only the invalid ground in the jury argument, and the jury asked the court questions during deliberations directed solely to the invalid ground. In that case, we might well find prejudice. The prejudice would not be assumed, but affirmatively demonstrated." (Id. at p. 1129.)
No such affirmative demonstration of prejudice could be made here. The prosecutor did not stress only the torture theory of first degree murder, nor did the jury ask questions directed solely to that theory. The evidence of premeditation was compelling — more so, in fact, than the evidence of torture.
Defendant points to the fact the jury found true the torture special circumstance allegation as an indication that it relied on torture murder as a basis for first degree murder. However, the fact the jury might have found the torture theory to be persuasive is no indication that it relied solely on that theory. To the contrary, the jury was instructed that to convict defendant of first degree murder on a theory of torture, it had to find he "committed the murder with the willful, deliberate and premeditated intent to inflict extreme and prolonged pain upon a living human being for the purpose of revenge, extortion, persuasion or for any sadistic purpose . . . ." (Italics added.) It is not reasonably probable the jury would conclude defendant killed Norris with the premeditated intent to torture her, yet fail to conclude he premeditated the killing itself.
Accordingly, even if the jury found the torture theory persuasive, it is virtually certain that they found the premeditation theory persuasive as well, and there is no reasonable probability they convicted of first degree murder solely on the torture theory.
That being the case, even assuming the evidence did not support the torture theory as defendant claims, there was no prejudice, and reversal is not required. (People v. Guiton, supra, 4 Cal.4th 1116, 1130.)
Our conclusion that it is not reasonably probable the jury relied solely on torture and rejected premeditation also disposes of defendants related contention that the convictions on the child endangerment counts must be reversed, because those counts were based on the premise that he planned to murder Norris when he took the children with him.
B. Sufficiency of Evidence to Support Torture-Murder Special Circumstance Finding
Defendant also contends the evidence was insufficient to support the torture special circumstance finding. That finding required the prosecution to prove that "[t]he murder was intentional and involved the infliction of torture." (Pen. Code, § 190.2, subd. (a)(18).) As stated previously, defendant does not dispute there was substantial evidence the murder was premeditated and therefore, by definition, intentional. He contends, however, that the murder did not involve the infliction of torture as used in Penal Code section 190.2, because the evidence did not show he acted with the intent to inflict suffering beyond that inherent in the infliction of mortal wounds.
"`For the purpose of [Penal Code section 190.2, subdivision (a)(18)] torture requires proof of the infliction of extreme physical pain no matter how long its duration." (People v. Bemore (2000) 22 Cal.4th 809, 839, fn. omitted.) As defendant recognizes, the torture special circumstance under Penal Code section 190.2, subdivision (a)(18) differs from torture murder under Penal Code section 189 in that the special circumstance does not require an intent to inflict prolonged pain. Thus, the only question is whether a reasonable trier of fact could find defendant acted with the intent to inflict extreme pain on Norris, regardless of its duration. In addressing that question, we must "`consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment." (People v. Crittenden (1994) 9 Cal.4th 83, 139.)
Penal Code section 190.2, subdivision (a)(18) was amended in 1990 to delete the sentence referring to "extreme physical pain." (See People v. Bemore, supra, 22 Cal.4th at p. 839, fn. 17.) Nevertheless, the standard jury instruction, CALJIC No. 8.81.18, still requires that the jury find the "defendant intended to inflict extreme cruel physical pain and suffering upon" the victim, and the court so instructed in this case.
For purposes of the torture special circumstance, "[i]ntent is a state of mind which, unless established by the defendants own statements, must be proved by the circumstances surrounding the commission of the offense [citations], which include the severity of the victims wounds. [Citation.]" (People v. Proctor (1992) 4 Cal.4th 499, 531.) The nature and severity of Norriss 28 nonfatal wounds in this case amply supported a finding that defendant intended to inflict extreme pain on her, above and beyond that inherent in killing her. One wound went completely through Norriss wrist. Another went through her upper arm. Defendant, in fact, acknowledges there may have been sufficient evidence to prove he intended to inflict gratuitous pain, given the number of nonlethal wounds he inflicted on Norris.
There was no question these nonfatal wounds caused Norris to suffer extreme pain before she died. A resident of the apartment complex testified he heard screaming that "sounded almost like a small dog was caught under a tire or something . . . ." He further testified he could tell it was some kind of a painful experience for whomever was yelling and stated, "I never heard anything like it before."
Sufficient evidence of intent to torture may be shown by the infliction of wounds while the victim was still alive but was incapable of avoiding further attack. (People v. Proctor, supra, 4 Cal.4th 499, 531-532.) The evidence in this case showed defendant continued to stab Norris after she ceased resisting. The pathologist who performed Norriss autopsy testified some of her injuries were received when her back was to her assailant. A resident of the apartment complex testified that after defendant pulled Norris from her car, he "was squatted over her, and he was methodically just stabbing her everywhere." (See id. at p. 532 [sufficient evidence of torture where wounds revealed that a "methodical approach" had been employed in their infliction].)
Finally, there was ample evidence apart from the nature and severity of the wounds that defendant intended to inflict extreme pain on Norris. Defendants resentment toward Norris was manifest in the evidence of the violent arguments that led to their divorce; her disparaging statements about his physical appearance and his belief she thought she was better than he due to her superior education; defendants statement shortly before the killing that Norriss friend would "get hers" for introducing Norris to other men; defendants becoming extremely upset when Norris ordered him off her property two days before the killing; Norriss forcing defendant on the day of the killing to falsely admit damaging her car; defendants statements to the children the day of the killing about throwing acid on Norris; defendants heated discussion with Norris on the pay phone just before the killing; and defendants violent reaction when he "lost it" after Norris spat at him and called him a derogatory racial epithet.
A killers desire for revenge against the victim is a recognized indicator of an intent to torture. (See People v. Bemore, supra, 22 Cal.4th 809, 839, fn. 18.) Here, the jury reasonably could find defendant harbored built-up resentment toward Norris, which caused him to want to seek revenge on her. That finding, combined with the severity of the wounds he inflicted, would support the conclusion that defendant intended not only to kill Norris but also to cause her extreme pain. Accordingly, substantial evidence supported the special circumstance finding.
C. Admissibility of Defendants Pretrial Statements
1. Background
Prior to trial, defendant moved to suppress his pretrial statements to the police on the ground they were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda). Before ruling on the motion, the court viewed a videotape of defendant made while he was in custody in an interrogation room at the police station prior to being interviewed.
The videotape covered about one hour and 15 minutes and showed the following. During the first approximately 28 minutes, defendant was left alone in the room except when the officer in charge entered to bring him a drink or escort him to the restroom. Defendant summoned the officer once by knocking on the door and once by rattling the chain on his handcuffs. Other times the officer entered without being summoned.
About 28 minutes into the tape, the officer entered the room and stayed for about 12 minutes, apparently at the request of another officer. During that time, defendant asked about his nephew and niece and talked about his marriage and his fear his probation would be violated. The officer left about 40 minutes into the tape, telling defendant to "hang on."
About three minutes later, about 43 minutes into the tape, the officer reentered the room, stayed another five minutes, and left. While the officer was present, defendant talked about his job as a painter and his belief he could not have children due to radiation damage from working in a nuclear power plant.
About 50 minutes into the tape, the officer reentered, stayed another five minutes, and left. Thereafter, the officer reentered a few times to bring defendant water and escort him to the restroom.
About one hour, eight minutes into the tape, defendant knocked, and the officer entered about 15 seconds later. Defendant asked if his nephew and niece were there, whether they were being interrogated, and whether it was legal to interrogate minors. The officer said he would see what he could find out and left.
About a minute after the officer left the room, defendant said words to the effect of, "Attorney. I dont want to say nothing, I want to talk to an attorney." About five seconds later, defendant knocked and said, "I want to talk to an attorney." There was no response. About 30 seconds after that, defendant knocked again. Again there was no response. Defendant knocked again about 20 seconds after that.
We quote from the videotape as accurately as possible. Because defendant spoke in a soft voice and sometimes mumbled, it was not always entirely clear what he was saying.
About seven seconds later, the officer called into the room and asked what defendant wanted. Defendant asked again if his nephew and niece were there. The officer entered the room. Defendant said, "Do I need to have counsel?" Defendant also said interrogating minors without counsel was illegal. The officer told defendant the detectives would address his concerns when they interviewed him and left the room.
Defendant listened at the door for a while, and then called out to his nephew and niece. Defendant then said, "Thats illegal. Im calling a lawyer. Id like to call an attorney."
There was no response, and after about 10 seconds defendant knocked and said, "Id like to call an attorney now." About 12 more seconds went by with no response. Defendant knocked again and said, "Excuse me. Hello?" Defendant then called out to his nephew and niece that they should not say anything until their mother came and that it was illegal for the police to interrogate them without their mother being present.
A few seconds later, defendant knocked again. He waited about 20 seconds with no response, and then called out, "Thats their mother." He knocked again, waited about 10 seconds with no response, and knocked a third time, saying "This is illegal." After about 10 more seconds defendant said, "I would like to call an attorney. Hello?" He waited a few seconds with no response, knocked again, and again said, "Hello?"
After about 20 more seconds with no response, defendant knocked again. The officer entered about five seconds later and removed defendant from the room. The tape ended at that point.
Subsequently, two officers interviewed defendant and advised him of his Miranda rights. Defendant stated he understood his rights. Although he did not respond directly when asked whether he wished to talk to the officers, defendant proceeded to do so without requesting an attorney.
During the interview, defendant asked the interviewing officers if he needed counsel and told them he could not afford an attorney. Defendant does not contend either statement was an invocation of the right to counsel.
2. Trial courts ruling
At the argument on defendants motion to suppress his statements to the police, defense counsel acknowledged "there was no one present in the room when [defendant] was asserting his contention that he wanted to talk to an attorney" but asserted that "just about every time" defendant knocked on the door, someone responded almost immediately. Therefore, it was reasonable to infer that when defendant said he wanted an attorney he "was talking to someone he knew was listening."
The court found defendant had made "no unequivocal request for an attorney." When defendant stated he would not say anything and wanted to talk to an attorney, he was "talking to himself" because there was "no one present during that." Although "there may have been people outside who heard what he said," it was "difficult to know that anyone actually heard it because there was no one present in the room. I can only do that with surmise and speculation, which I tend not to do." Therefore, there was no Miranda violation.
3. Miranda violation
Defendant contends the court erred in finding no Miranda violation. He asserts that because the court concluded it could not tell whether defendants statement that he wanted to talk to an attorney was heard by an officer, it was compelled to find the prosecution had failed to carry its burden of proving his subsequent statements to the officers were voluntary. He argues that the prosecution had the burden of proving that his invocation of his right to counsel was not effective, and that this burden obligated the prosecution not merely to show that the officer might not have heard his request for counsel, but to show affirmatively that he did not hear it. The prosecution, defendant asserts, did not meet that burden, since the court concluded it was impossible to tell whether anyone heard the statement, and that conclusion was supported by substantial evidence.
In reviewing defendants Miranda claim, "we accept the trial courts 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.]" (People v. Cunningham (2001) 25 Cal.4th 926, 992.) Pursuant to article I, section 28, subdivision (d) of the California Constitution, we apply federal standards in reviewing a defendants claim that his or her statements were elicited in violation of Miranda. (Cunningham at p. 993.)
Defendant is correct as a general matter that the prosecution has the burden to prove a defendants confession was voluntary and that the defendant waived his Miranda rights. (Lego v. Twomey (1972) 404 U.S. 477, 489 [92 S.Ct. 619, 627, 30 L.Ed.2d 618] [prosecution must prove at least by preponderance of evidence that confession was voluntary]; Colorado v. Connelly (1986) 479 U.S. 157, 168-169 [107 S.Ct. 515, 522-523, 93 L.Ed.2d 473] [prosecution must prove waiver of Miranda rights by preponderance of evidence].) The specific question in this case, however, is whether, where the defendant makes a request for counsel that is ambiguous or equivocal — that is, where the court cannot determine whether the defendant intended to assert his right to counsel — the court must presume he did intend to assert that right in the absence of an affirmative showing to the contrary by the prosecution. We believe Davis v. U.S. (1994) 512 U.S. 452 [114 S.Ct. 2350, 129 L.Ed.2d 362] (Davis), on which the court in this case relied in ruling there was no Miranda violation, answers that question in the negative.
In Davis, the United States Supreme Court held that in order to effectively invoke his right to counsel under Miranda, a suspect "must unambiguously request counsel." (Davis , supra, 512 U.S. at p. 459.) That is, the suspect "must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." (Ibid.) Thus, the court held, a suspects statement, "Maybe I should talk to a lawyer," was not a request for counsel: "[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." (Ibid.)
It appears the California Supreme Court, at least at one time, took a different view of the matter. In People v. Randall (1970) 1 Cal.3d 948, 955, disapproved on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 510, the court said: "To strictly limit the manner in which a suspect may assert the privilege, or to demand that it be invoked with unmistakable clarity (resolving any ambiguity against the defendant) would subvert Mirandas prophylactic intent." However, as the court subsequently recognized, Randall is inconsistent with Davis and, since federal law governs the issue, Davis must prevail. (People v. Crittenden, supra, 9 Cal.4th 83, 129-131.)
Davis thus represents, in effect, a limited exception to the general rule placing the burden on the prosecution to prove that a suspect waived his Miranda rights. Under Davis, the prosecution meets its burden of proof if it shows the suspects conduct was sufficiently ambiguous that a reasonable officer would conclude only that the suspect
"might be invoking the right to counsel . . . ." (Davis, supra, 512 U.S. at p. 459.) Davis thus necessarily relieves the prosecution of any burden to affirmatively negate the possibility that the suspect intended to invoke his Miranda rights, for it expressly allows an officer to question a suspect even though the circumstances show he "might" be invoking those rights. If the suspect wishes to assert those rights, it is his burden to do so in a way that is sufficiently unequivocal to remove any ambiguity. (See Reed, Davis v. United States (1995) 33 Duq.L.Rev. 1109, 1126 ["[t]he holding in Davis places the burden on the suspect to prove that he positively invoked his right to counsel"].)
Moreover, Davis expressly relieves law enforcement officers who are faced with an ambiguous Miranda invocation of any obligation to try to clarify the matter, stating: "Of course, when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. . . . But we decline to adopt a rule requiring officers to ask clarifying questions. If the suspects statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." (Davis, supra, 512 U.S. at pp. 461-462.)
In this case, the principles articulated in Davis meant that the prosecution did not have to prove that no custodial officer heard defendant say he wanted to talk to an attorney, as defendant now contends. Rather, all the prosecution had to show was that defendants statement was sufficiently ambiguous that a reasonable officer who did hear it would conclude only that he might or might not be invoking his right to counsel.
The prosecution met that burden. Granted, this case differs from Davis in that here, there was no ambiguity in the words defendant used — he plainly stated he wanted to talk to an attorney. But nothing in Davis suggests that in determining whether a request is ambiguous a court must look only at the words used. Quite to the contrary, the court said a statement need not be treated as a Miranda invocation if a reasonable officer "in light of the circumstances" would not have understood it to be an unequivocal request for counsel. (Davis, supra, 512 U.S. at p. 459.)
The circumstances in this case included the facts that defendant confined his statements that he wanted to talk to an attorney to moments when he was alone in the room and, significantly, never reiterated them at any time when an officer was present. A reasonable officer could conclude that if defendant actually wanted an attorney, he would have taken the obvious step of saying so during one of the numerous times when the attending officer was physically present in the room, instead of relying on the off chance that someone outside the room might overhear his soliloquizing.
Moreover, the record strongly suggests defendant knew no one heard his statement that he wanted to talk to an attorney and did not intend that anyone hear it. Defendant made the statement shortly after the attending officer left the room to try to find out, at defendants request, whether his nephew and niece were there. After he made the statement, defendant knocked on the door three separate times over a period of about a minute before the officer finally returned. It is reasonable to infer that in the interim the officer had been out of earshot trying to determine the whereabouts of the children and that, if he had been close enough to hear defendants statement, he would have responded more promptly to defendants knocks. When the officer did return, defendant then asked, "Do I need counsel?" If defendant thought he had already invoked his right to counsel with his previous statement, it would have made no sense to ask the officer that question.
In addition, defendant interspersed his statements that he wanted to talk to an attorney with assertions that the police were acting illegally in interrogating his nephew and niece without counsel present. This circumstance made it unclear whether defendants statement that he wanted to talk to an attorney meant that he wanted an attorney for himself or that he wanted one to protect the rights of the children.
The rationale underlying the holding in Davis is that requiring the cessation of questioning based on an ambiguous or equivocal reference to an attorney "would needlessly prevent the police from questioning a suspect in the absence of counsel even if the suspect did not wish to have a lawyer present." (Davis, supra, 512 U.S. at p. 460.) That rationale would be disserved if we were to adopt defendants position and hold that the prosecution must affirmatively show that a suspects statement that he wants an attorney, made when there was no law enforcement officer physically present, was not overheard by any such officer. A defendant who wants an attorney reasonably can be expected to take the simple expedient of saying so directly to a custodial officer. If he does not take that step, he has not made the unequivocal request for counsel that Davis requires, and Davis dictates that the officers have no obligation to refrain from questioning him.
We therefore conclude the trial court was justified in finding defendant had failed to make an unequivocal invocation of his right to counsel. That being the case, the court properly found no Miranda violation in the subsequent interrogation of defendant and the use of his statements at trial.
4. Prejudice
Even if we were to assume that defendants statements to the police were obtained in violation of Miranda, we would conclude their admission was harmless beyond a reasonable doubt. (See People v. Cunningham, supra, 25 Cal.4th 926, 994.) As defendant recognizes, the prosecution did not rely on his statements primarily to show his commission of the murder, which had already been amply established through the statements of the children and the testimony of the apartment complex residents. Instead, the prosecutor used the statements for impeachment in his cross-examination after defendant testified on his own behalf. The prosecutor used the statements to force defendant to admit he had lied to the police when he initially denied involvement in the murder, telling them, by the prosecutors count, 86 separate lies. Defendant argues that since his defense — that he never intended beforehand to kill Norris — depended almost entirely on his credibility, the use of his statements to the police to undermine his credibility was prejudicial.
However, the prosecutor would have been able to use defendants statements for impeachment even if they had been obtained in violation of Miranda. (Harris v. New York (1971) 401 U.S. 222, 224, 226 [91 S.Ct. 643, 646, 28 L.Ed.2d 1]; People v. Peevy (1998) 17 Cal.4th 1184, 1191-1205.) Therefore, any error in admitting the statements for that purpose could not have been prejudicial.
Moreover, even without any impeachment, defendants claim that he did not intend to kill Norris was utterly lacking in credibility. His preparations on the day of the crime, and his express statements to the children about wanting to kill Norris, would have insured his conviction regardless of whether his statements to the police had been admitted. Any error in admitting the statements was harmless beyond a reasonable doubt.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J. and McKINSTER J.