Opinion
A098763.
7-24-2003
THE PEOPLE, Plaintiff and Respondent, v. JAMES MCCLARY, Defendant and Appellant.
I. INTRODUCTION
A jury convicted appellant of one count of receiving stolen property and one count of resisting a police officer. The trial court dismissed the latter count under Penal Code section 1385, and sentenced appellant to five years in state prison on the receiving stolen property count. Appellant appeals, claiming (1) constitutional error under Doyle v. Ohio (1976) 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (Doyle) in the admission of testimony from a police detective plus argument by the prosecution concerning appellants allegedly evasive answers to questions by an investigating detective, and (2) ineffective assistance of counsel in failing to object to that testimony and argument on Doyle grounds. We affirm.
All further statutory references are to the Penal Code.
Detective McElligott testified for the prosecution. The bulk of that testimony related to what appellant told the detective about the stolen Acura. Then the following testimony occurred:
"Q Did you ask him anything with respect to the stolen maintenance equipment that was located in the car?
"A Yes, I did.
"Q What did he say, if anything?
"A He became evasive and didnt answer my questions.
"Q He stopped answering your questions?
"A Thats correct.
"Q Did you terminate the interview at that time?
"A Thats correct."
Nothing further regarding this aspect of the police station interview was developed from Detective McElligott on cross-examination or redirect.
On direct examination, appellant testified that, when he was loading the material in the duffel bags into the Acura, he did not know the contents belonged to the motel;
II. FACTUAL AND PROCEDURAL BACKGROUND
On June 26, 2001, a black Acura belonging to one Jed Paz was stolen from a detail shop at a car dealership in Walnut Creek. Pazs wallet was in the car at the time it was stolen.
On July 3, 2001, one Wendy Siri checked into the Super 8 Motel in Vacaville; although she was alone, she told the motel manager, Karen Alford, that a friend would be joining her. Later, Alford saw appellant with Siri. In the process of checking in, Siri gave a partial license plate number for the car she was driving, a black Acura. A motel employee later determined that the Acuras two license plates had different numbers, and that neither matched the number provided by Siri.
On the morning of July 4, 2001, Bette Ringler, a maintenance worker for the motel, found that the maintenance closet at the motel had been broken into; it had been securely locked the night before. Missing from it were numerous pieces of equipment, including tools, a tool belt, a key "dubbing" machine, manuals, outdoor lighting and smoke alarms.
The next day, July 5, Alford, the motel manager, noticed appellant pushing a luggage cart full of luggage toward the trunk of the black Acura; the car had been positioned so that its trunk was facing the motel. Alford observed appellant make two trips from the motel to the car, each time emptying the contents of one of the pieces of luggage, a duffel bag, into the trunk of the Acura.
Vacaville Detectives Higby and Carli came to the Super 8 Motel parking lot, responding to a report of a stolen car. After parking their unmarked police car in the vicinity of the Acura, they saw appellant and Siri approach the Acura, Siri going to the passenger seat and appellant placing luggage in the trunk. With badges displayed on their belts, the detectives approached appellant and told him he was under arrest. They grabbed appellants arms so as to handcuff him, but appellant began to resist and struggle with the detectives. They had to wrestle him to the ground to handcuff him.
The detectives confirmed that the Acura belonged to Paz, and that its two license plates did not match. They also found Pazs wallet in the car and, in the trunk, a combination of appellants personal effects and tools and other material that had previously been in the motels maintenance room. Detective Carli testified that the motel room occupied the previous nights by appellant and Siri was approximately 35 feet from the maintenance room, and that there were pry marks on the door frame of the door leading to the maintenance room.
Following his arrest, appellant agreed to give a statement to another officer, Detective McElligott. He told McElligott that he knew the car was stolen, but denied being the one who stole it. He claimed he had traded some welding supplies for the car about a week earlier. When, however, McElligott asked appellant about the stolen motel tools and supplies in the trunk, appellant became evasive and would not answer specific questions.
On February 26, 2002, via an amended information, appellant was charged with three counts. The first count alleged receiving a stolen automobile ( § 496d, subd. (a)), the second, receiving stolen property (the items stolen from the motel) ( § 496, subd. (a)), and the third, resisting a police officer ( § 148, subd. (a)(1)). The amended information also alleged that appellant had suffered two prison priors within the meaning of section 667.5, subdivision (b).
Trial commenced two days later, on February 28, 2002. At the trial, appellant testified that Siri had been his girlfriend for about a month and had told him that she had borrowed the Acura from someone. He further testified that he did not know the items he loaded into the car belonged to the motel. He explained that Siri had mentioned something to him about "moving some property or some stuff" for a friend of hers, the friend allegedly being maintenance worker Ringler.
When the police approached the car, appellant testified, he was not wearing his glasses and thus did not see the badges the detectives exhibited. He also testified he did not hear them say he was under arrest. Regarding his statements to Detective McElligott after his arrest, appellant testified he had falsely said he knew the car was stolen to keep Siri from getting into trouble. He testified he did not understand he was being questioned about the motel break-in, but acknowledged that he did not tell McElligott about Siris alleged plan to return or exchange motel property for Ringler because, again, he did not want to get her into trouble.
The jury returned its verdict on March 1, 2002. It found appellant guilty on the second and third counts. It hung on the first count (receiving the stolen car), which was then dismissed on the prosecutors motion. The court found the two prison priors to be true.
On April 30, 2002, the court dismissed the third count (resisting a police officer) under section 1385, and sentenced appellant to five years in state prison for his conviction under section 496, subdivision (a). This sentence was composed of the upper term of three years on the second count and one year each for the two prior prison terms. Appellant was ordered to pay restitution in the amount of $ 1,000 pursuant to section 1202.4; a second restitution fine in the same amount was ordered pursuant to section 1202.45, but stayed. Appellant was ultimately awarded 450 days total credit for actual time served and conduct.
Appellant filed a timely notice of appeal.
III. DISCUSSION
As noted, appellant contends the prosecution violated his constitutional right to remain silent by, in violation of the rule in Doyle, supra, 426 U.S. 610, both commenting on and cross-examining him concerning his "partial silence" while being questioned by Detective McElligott. And, he further contends, any failure on the part of his trial counsel to object to any of this on Doyle grounds constituted ineffective assistance of counsel. We reject the first argument because nothing done by the prosecution violated Doyle. As a consequence, we do not reach the ineffective assistance of counsel contention.
The rule of Doyle has been summarized as follows by our Supreme Court: "It is fundamentally unfair, and a deprivation of due process, to promise an arrested person that his silence will not be used against him, and then to breach that promise by using silence to impeach his trial testimony." (People v. Hughes (2002) 27 Cal.4th 287, 332.)
Appellant contends that this rule was violated here by the prosecutions actions in (1) noting in opening argument to the jury that, when questioned about the motel property in the car, appellant "became evasive and didnt answer any questions," (2) having Detective McElligott testify to the same effect as part of the prosecutions case, (3) cross-examining appellant about his failure to accurately answer McElligotts questions about the motel property, and (4) again noting appellants alleged evasiveness and failure to answer questions about that property in closing argument to the jury. And the importance of this issue is underlined, appellant continues, by the fact that the jury requested and got a read-back of McElligotts testimony regarding his post-arrest interview with appellant.
We reject this argument for two interrelated reasons. In the first place, the record does not establish that appellant at any time invoked, either explicitly or implicitly, his right to remain silent. Second, assuming arguendo that he did so, the absolute maximum the record supports is that appellant may have been trying to remain "selectively silent." Such a tactic simply does not qualify for Doyle purposes.
First, a bit of background. Nothing in the record establishes when, where and how appellant was given and waived his Miranda rights. But clearly that happened. Appellant testified on direct examination that he had agreed to speak to Detective McElligott and, on cross-examination, conceded that he had "substantial experience with police officers and law enforcement and the judicial system." he only found that out, he testified, from Detective McElligott. His understanding from Siri, he testified, was that Siri had told him "she had a plan whereby she was going to return some property for a friend of hers," namely Ringler, the motels maintenance worker.
Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.
On cross-examination by the prosecution, appellant was examined further regarding that portion of his interview with Detective McElligott, which concerned the stolen motel property:
"Q Now, this plan that you said that you knew Wendy Siri had with a friend to exchange property, you never told that to the police officers, did you?
"A No.
"Q And at the time that you were under arrest at the police station when you were making a statement to Detective McElligott, you knew at that time that the car had contained stolen property from the motel; isnt that correct?
"A Yeah. Thats when I found out.
"Q But you never told Detective McElligott about any plan that Wendy Siri had involving somebody from the motel, did you?
"A My idea was to get her out of trouble, not into trouble.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"Q . . . At the time you were being interviewed by Detective McElligott, your testimony is you knew that Wendy Siri had the arrangement with somebody at the motel to exchange property, correct?
"A Yeah.
"Q But you had no knowledge that Wendy Siri knew that this property was stolen; isnt that correct?
"A Yeah. " . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"Q [Prosecutor] You are saying that Detective McElligott never asked you about the stolen property from the maintenance room?
"A Yeah. At the end, yeah, after we were talking about the vehicle.
"Q But you never told him about any plan that Ms. Siri had with somebody at the motel, did you?
"A No."
On redirect, appellant testified as follows:
"Q [Defense counsel] When you were speaking with Detective McElligott concerning the property at the motel, at the time you were talking with the detective, you had learned that there was stolen property in the car, correct?
"A Yeah.
"Q And you had learned that because the police had told you; is that right?
"A Yes.
"Q Why did you not tell the officer about Wendys plan to exchange motel property?
"A I didnt realize that that was the stolen stuff in question. She never really-he was asking me about something separate really. I dont know if-when he was talking about a break-in."
There was, of course, considerably more testimony from both Detective McElligott and appellant concerning the formers questions and the latters answers regarding the stolen Acura. Appellants counsel argues from this record that appellant "chose to limit the extent of incrimination by speaking on only one topic." Counsels brief continues: "In this case, appellant neither completely refused to speak to the police nor completely waived his right to silence. He selectively chose to speak only as to the stolen car and refused to answer questions regarding the stolen goods. As such, appellant was a `partially silent defendant and the prosecution should have been barred from impeaching him with his refusal to speak to the police about the stolen goods."
The record simply does not support this contention, raised for the first time on appeal. The record confirms that appellant was initially questioned by Detective McElligott about the stolen car; however, and as noted above, he was also questioned about the stolen motel property. At no time did appellant suggest, in his trial testimony, that he had deliberately remained silent on the latter subject, much less that he had formally announced either an intention or desire to do so. Rather, appellants testimony confirms McElligotts description of his responses as "evasive." This is not the sort of behavior protected by Doyle.
Anderson v. Charles (1980) 447 U.S. 404, 65 L. Ed. 2d 222, 100 S. Ct. 2180 (Anderson) is perhaps the leading case demonstrating the limits of the Doyle rule that bars the use of a defendants silence against him. In that case, after receiving his Miranda warning, the defendant admitted stealing a car from a spot two miles from a bus station. At trial, however, he testified differently, claiming that the theft occurred right next to the station. The Supreme Court found no Doyle violation in the prosecutors use of these inconsistent statements on cross-examination, stating, "Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all." (Anderson, supra, at p. 408.)
Appellants counsel seizes on the last sentence from this passage in Anderson to argue that "the subject matter" at issue here was the stolen car, not the stolen motel property. This cuts things much too finely. Clearly, and especially from appellants own testimony at trial, he was asked questions, and responded, about both matters in his post-arrest interview with Detective McElligott.
But even if the record supported appellants belated "partial silence" argument, California law does not. Several appellate decisions, including one from our Supreme Court, make clear that "selective silence" is not protected under Doyle absent a clear manifestation of an intent to reassert an arrestees right to remain silent. Thus, in People v. Silva (1988) 45 Cal.3d 604, 247 Cal. Rptr. 573, 754 P.2d 1070, the court rejected the defendants claim that he had been denied his Miranda rights during the course of an interview by a Lassen County undersheriff, an interview conducted after there had been a recorded waiver of those rights. The court noted, first, that the defendant answered several questions about the prelude to the murders with which the defendant was charged, but then noted: "When asked if he saw [one of the victims] vehicle later or if defendant was driving the truck, defendant responded, `I dont know. [The undersheriff] again asked defendant if he was driving the truck and defendant said, `I dont know. I really dont want to talk about that. [P] The interview continued, and [the undersheriff] asked questions involving areas other than the identity of the person driving the truck. [The undersheriff] noted that there were other areas which defendant indicated he did not wish to discuss. According to [the undersheriff], `any time I hit on an area where Im getting into the, concentrating [on] the, homicide, [defendant] gets evasive to a point: doesnt deny, does not admit, stays in limbo. Defendant continued, however, to answer other questions." (People v. Silva, supra, at p. 629.)
The Silva court then addressed the error claimed about the interview (the tape recording of which was apparently admitted into evidence): "Defendant now claims that his statement, `I really dont want to talk about that represented an invocation of his rights to remain silent and that any further questioning occurred in violation of his Miranda rights. The trial court properly rejected this argument. [P] Having obtained defendants consent to the questioning, [the undersheriff] was free to interview defendant until he exercised his privilege against self-incrimination. [Citation.] A suspect may do so by `refusing to sign a waiver of his constitutional rights[,] . . . refusing to continue an interrogation already in progress[,] or . . . [by] asking for an attorney. [Citation.] A defendant may indicate an unwillingness to discuss certain subjects without manifesting a desire to terminate `an interrogation already in progress. [Citation.]" (People v. Silva, supra, 45 Cal.3d at pp. 629-630; see also, to the same effect, People v. Davis (1981) 29 Cal.3d 814, 824-825, 176 Cal. Rptr. 521, 633 P.2d 186; People v. Watkins (1970) 6 Cal. App. 3d 119, 124, 85 Cal. Rptr. 621.)
Interestingly, in rejecting defendant Silvas argument, the Supreme Court never even cited Doyle, supra, 426 U.S. 610 . We can only surmise that it did not think there was enough "silence" in the course of the interrogation at issue there to warrant such a mention. If so, the same conclusion applies here.
In a more recent case, People v. Hurd (1998) 62 Cal.App.4th 1084 (Hurd), the rule against "selective silence" was emphasized even more pointedly. There, the defendant contended that, even though he had waived his Miranda rights and answered police questions, the prosecution violated his rights under Doyle by both impeaching him with, and commenting on, his refusal to either demonstrate the fatal shooting of his wife or to take a polygraph examination. The appellate court disagreed, stating, "A defendant has no right to remain silent selectively. Once a defendant elects to speak after receiving a Miranda warning, his or her refusal to answer questions may be used for impeachment purposes absent any indication that such refusal is an invocation of Miranda rights. Here, appellant talked freely and voluntarily about his relationship with his wife and how the shooting occurred including drawing a diagram. By refusing the demonstration, appellant in effect said, `I11 tell you, but I wont show you. Appellant cannot have it both ways. Appellant was not induced by the Miranda warning to remain silent. Having talked, what he said or omitted must be judged on its merits or demerits, and not on some artificial standard that only the part that helps him can be later referred to. [P] This was not a case where the prosecution commented upon a prior exercise of rights. The prosecutor asked the jury to measure what appellant said and refused to do. We do not think Doyle was meant to preclude the prosecutor from commenting on highly relevant evidence bearing on appellants credibility, including appellants refusal to provide critical details, when he had voluntarily waived his right to remain silent." (Hurd, supra, at pp. 1093-1094, fn. omitted.)
Although the People cite Hurd, supra, 62 Cal.App.4th 1084 in their brief to this court, in her reply brief appellants counsel nowhere mentions that case and continues to rely on the concept of "partial silence."
We strongly agree with Hurd, supra, 62 Cal.App.4th 1084. Indeed, any other rule would effectively mean that someone arrested for pickpocketing could choose to answer questions about the wallet found in his right pocket but not about the one found in his left pocket. Thus, even if the record can be construed to suggest that appellant intended to remain "partially silent" to Detective McElligotts questions regarding the stolen motel property, this is insufficient to invoke the rule of Doyle, supra, 426 U.S. 610 .
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Ruvolo, J.