Opinion
A129485
01-19-2012
THE PEOPLE, Plaintiff and Respondent, v. NATHAN ANGELO McGILL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR554417)
For his part in a robbery and murder of a drug dealer, Nathan Angelo McGill was found guilty by a jury of first degree murder (Pen. Code, § 187, subd. (a)), first degree residential robbery and burglary (id., §§ 211, 459), and possession of a firearm by a felon (id., § 12022, subd. (a)(1)), with allegations of arming (id., § 12022, subd. (a)(1)) and robbery in concert (id., § 213, subd. (a)(1)(A)) found true. The court found true prior serious felony and strike allegations and sentenced McGill to an aggregate term of 62 years to life.
On this appeal, McGill claims federal due process error in admitting evidence of his assertedly involuntary statements to a sheriff's detective. He has also filed a petition for habeas corpus (A131778) claiming ineffective assistance of counsel in this regard, and we ordered that his appeal and petition be considered together. Having considered both, we affirm the judgment here and, by separate order, summarily deny the petition.
B ACKGROUND
We have no occasion in this opinion to reach the merits of the due process claim or any prejudice from error, and so a brief summary of the procedure and trial evidence suffices. The murder was of longtime methamphetamine dealer Jody Reynolds at his trailer home on semi-rural property in Santa Rosa on January 20, 2009. Reynolds was beaten and shot twice, with different guns, during a robbery carried out by Felix Alvarado and Ernest Cassidy, William Hammack, and McGill. All were originally charged, as well as Eric Duran, a customer of Reynolds who set up Reynolds and directed the perpetrators to where Reynolds lived. Duran avoided a possible life term for murder through a plea agreement under which he agreed to testify against the others, and McGill was tried here on an information amended to include just the charges against him.
Evidence tying McGill to the planning and execution of the robbery/murder included: his arrival with the other three at Hammack's place by car just afterward, wearing a face mask; talk there in the presence of Duran about what happened; Duran splitting stolen drugs five ways; McGill threatening Duran, while holding a gun, that he would be dead if he said anything; a duffle bag with guns in it, including a revolver likely used to shoot the dealer, found in the house where McGill lived; and his DNA being found on a magazine with the guns. This appeal, however, focuses on statements McGill made to Detective Chris Vivian in two interviews, a day apart, at the Sonoma County Sheriff's Investigation Bureau, after McGill's arrest about a week after the crimes.
In those interviews, McGill was talkative, after Miranda warnings, and admitted being part of the planning for what was supposed to be just a robbery. In the course of the five and a half hours of the first interview (from about 5:30 to 11:00 p.m., he painted himself as a veteran (40 years old) who was anxious about the others' inexperience, showed them how to do it, wrote it down for them, had them practice at his house, and specifically warned them against shooting the dealer—that it was "a red light." He told who was involved, what happened at the shooting, that four guns were used, which ones he provided or fixed for them, but consistently in the first interview, denied being there. He said there were five perpetrators and named four, including Duran in their number, but denied being the fifth and never gave a fifth name. He said he was going to do it but backed off when he got "the red light" from his "people" about the dealer. Still, the others were "my boys," he said, so he had to "make sure they're doing shit right." He said it was "destined to go bad," but, "If I was there, this wouldn't a happened."
Only toward the end of the second interview, which ran some three hours from 9:00 p.m., did McGill admit being there. He said he stayed outside the house until he heard shots fired, then was angry and "ready to shoot them all."
DISCUSSION
McGill argues that his admission of presence, in the second interview, was an involuntary confession induced by a false promise of leniency. He concedes that both interviews were conducted free of undue stress or coercion in the main. But he argues that Vivian, particularly by speaking figuratively of a "lifeboat" and of intent and presence being "two bullets" available to him, made a false promise of leniency by suggesting that lack of intent to kill or presence during the shooting were ways to avoid first degree murder, when in fact he was tried in part on a theory of felony murder, which did not depend on either his intent to kill or his presence. He relies on People v. Johnson (1969) 70 Cal.2d 469, 478-479 (Johnson), and People v. Cahill (1994) 22 Cal.App.4th 296, 314-317 (Cahill), as involving analogous misadvice that resulted in involuntariness holdings. We agree with the People, however, that the due process involuntariness issue is forfeited by failure of the defense to raise it adequately below.
" 'It long has been held that the due process clause of the Fourteenth Amendment to the United States Constitution makes inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion. [Citations.] A statement is involuntary [citation] when, among other circumstances, it "was ' "extracted by any sort of threats . . . [or] obtained by any direct or implied promises, however slight . . . ." ' " [Citations.] Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the "totality of circumstances." [Citations.]' [Citation.]" (People v. Leonard (2007) 40 Cal.4th 1370, 1402.) The same standards apply under the state Constitution. (People v. Sapp (2003) 31 Cal.4th 240, 267.)
The admissibility of McGill's statements came before the court, but on a Miranda question (Miranda v. Arizona (1966) 384 U.S. 436). An in limine motion filed by the People asked that the interviews be admitted because they were given after Miranda advisements, with McGill reminded of those advisements thereafter, and without McGill ever invoking his right to counsel or to remain silent. The motion conceded that the initial advisements were not captured on tape because of inadvertent failure to turn on the recorder during the first 10 or 15 minutes of the first interview, but offered that Vivian would testify to giving full advisements and that McGill and he confirmed later on tape that the advisements had in fact been given.
The defense filed no written opposition, but when a time was set for the hearing, this exchange took place between prosecutor Robert Waner, defense counsel Marie Case, and the court: "MR. WANER: The only lengthy delay I would anticipate in the Miranda motion is if the Court felt it necessary to view or listen to all of the recorded statements for some reason. As far as simply eliciting testimony from the detective and pinpointing certain parts of the interview, I don't think that's going to take that long.
"THE COURT: So what I'd like to do is plan on 11:00 in the morning, and what I'd like to do is just start with the witness. Now if it is not a voluntariness issue then the Court probably won't have to listen to all the tapes. But is that an issue for the defense?
"MS. CASE: Well, it is, I think depending on what foundation is laid for the actual taking of the statement should be dispositive of the Court's ruling, so I don't think it is a hearing that would take more than an hour."
Case's response at that point was ambiguous, perhaps alluding to voluntariness in the due process sense for testing whether a confession was coerced (People v. Bradford (1997) 14 Cal.4th 1005, 1041), but perhaps meaning only voluntariness in the limited Miranda sense that, once adequately advised, a suspect's implied or express waiver of rights to counsel and to remain silent must be voluntary (Connecticut v. Barrett (1987) 479 U.S. 523, 527; People v. Whitson (1998) 17 Cal.4th 229, 247). It is clear from the rest of the hearing, however, that counsel must have had in mind only the Miranda sense, and, in the end, opted to submit without argument even on that point.
Detective Vivian was examined, not about the full interviews, but about having properly advised McGill of his rights, and McGill speaking readily in an amicable and nonconfrontational atmosphere, never indicating that he wanted to invoke his rights to counsel or to remain silent. He had access to food and drink (offering to buy Vivian dinner at one point), bathroom, and rest. Vivian explained that, being one of the initial responding officers, having worked on the investigation for a week with little sleep, and having interviewed 10 to 15 others that day, he somehow forgot to turn on the interview room's recorders before entering to speak with McGill. A fellow detective who remotely monitored the interview, however, soon noticed the problem, turned on the recorders 10 to 15 minutes into the interview, and then called the omission to Vivian's attention at a food break two and a half hours into the interview. Vivian explained that he did in fact give the advisements, and re-Mirandized McGill at one point. Vivian read from numerous places in the interview transcripts where, mindful of the early recording gap, he spoke with McGill about the advisements having been given.
Brief argument by the prosecutor on whether to admit the interviews also focused on Miranda advisements and the circumstances of McGill waiving his rights (at both interviews). Defense counsel submitted "on the record," without argument, and the court, in ruling, also focused on the advisements and McGill's circumstances in agreeing to talk. The court also remarked, without response from defense counsel: "It appears that there is really no voluntariness issue. It really gets down to the technical aspects of Miranda being given." The court closed: "So I do find that Miranda was complied with. It was a voluntary statement. And it will be admitted subject to authentication." We must view the finding of "a voluntary statement," in context, not as a due process finding of no coercion, but as meaning that McGill voluntarily waived his rights after Miranda advisements. The court never read a transcript or listened to any of the eight and a half hours of taped interviews. It implicitly found it adequate—as the court earlier said it might—to rely on Vivian's testimony. No one cited the Johnson or Cahill cases or offered any analysis of those parts of the interviews now urged by McGill as containing an implied promise of leniency.
"An objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide," including when, "despite inadequate phrasing, the record shows that the court understood the issue presented" (People v. Scott (1978) 21 Cal.3d 284, 290), and a sufficient objection also allows the proponent of the evidence a fair opportunity to establish its admissibility (People v. Partida (2005) 37 Cal.4th 428, 434-435; People v. Marks (2003) 31 Cal.4th 197, 228; Evid. Code, § 353, subd. (a)). Here, the issue of due process coercion was not fairly raised, intuited by the court itself, or understood by the prosecutor so as to enable him to explore and argue more of the interviews.
Accordingly, the issue is waived or, more accurately, forfeited (In re S.B. (2004) 32 Cal.4th 1287, 1293 & fn. 2) for purposes of this appeal. (People v. Burgener (2003) 29 Cal.4th 833, 866 [federal constitutional issues], 889 [8th Amendment issue]; People v. Champion (1995) 9 Cal.4th 879, 918 [due process]; cf. People v. Crittenden (1994) 9 Cal.4th 83, 126 [Miranda]; People v. Rogers (1978) 21 Cal.3d 542, 548 [same].)
Defendants facing forfeiture on appeal do sometimes try to argue ineffective assistance of trial counsel based on just the appeal record, but McGill does not do so. Apparently heeding case law guidance that such a claim is more effectively brought by petition for habeas corpus, where matters behind the record may be presented (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267), McGill explains in his opening brief that, anticipating a waiver argument from the People, he has concurrently filed the related petition for habeas corpus (A131778) and moved that we consolidate the two matters. We did not order consolidation, only that the two matters be considered together, and we have not issued an order to show cause on the petition. Thus we have no occasion to discuss the ineffective-assistance claim in this opinion.
DISPOSITION
The judgment on the appeal is affirmed. Having considered the related petition for habeas corpus, we shall summarily deny the petition by separate order.
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Kline, P.J.
We concur:
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Haerle, J.
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Lambden, J.