Opinion
B162622.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. KEVIN LAMONT RICHARD, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Louis W. Karlin, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Kevin Lamont Richard of the lesser-included offense of voluntary manslaughter and found he personally used a handgun to kill Brian Harvey. (Pen. Code, §§ 192, subd. (a); 12022.5, subd. (a)(1).) The trial court sentenced him to a total term of 11 years in state prison. On appeal from the judgment, he contends the trial court prejudicially erred by excluding evidence of third-party culpability, and by refusing to suppress his incriminating statement elicited in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
Appellant lived at his mothers house in Compton. On November 28, 2001, he was at the house with a friend. At around 10:30 p.m. Brian Harvey and his girlfriend Deandre Burditt drove by the house and saw appellant standing beside his car. Harvey was carrying a counterfeit $100 bill. He decided to stop and buy marijuana from appellant as he had in the past. Burditt remained in the car while Harvey left to speak with appellant. About five minutes later, Burditt heard three to four "popping sounds" and she saw appellant chasing Harvey across the street and shooting at him. Harvey fell to the ground and attempted to stand up. Appellant stood over Harvey and shot him several times. Burditt yelled at appellant to stop and he ran towards Harveys car. Burditt drove away and telephoned police.
Sheriff deputies arrived at around 11:45 p.m. and found Harvey lying face-down on the ground. Harvey had received three gunshot wounds, including a fatal wound that had been fired downwards into the back of his head. A handgun was found on the sidewalk, about 15 feet from Harveys body. A baggie of marijuana was found on the front seat of appellants car. Another handgun was retrieved from the house of appellants mother. Neither gun had been fired at the scene.
Deputies went to the house of appellants mother and ordered the occupants to come out. Only appellant, his mother and his friend emerged. After appellant was taken into custody, a deputy sheriff performed a gunshot residue test on appellant, who told the deputy he had washed his hands about 20 minutes earlier. Appellants hands tested positive for gunshot residue, indicating he had either fired a gun or was nearby when a gun was fired.
Detective Scott Fines asked appellant for permission to search the house. Appellant told him to ask his mother because it was her house. When appellant asked why he was being detained, Fines replied he was investigating a homicide that had occurred near appellants home and that appellant was a possible suspect. Appellant said: "`That guy tried to jack me because I wouldnt sell him weed."
Defense Evidence
Appellant testified in his own defense that he had known Harvey for 26 years and had often sold him marijuana, sometimes extending him credit. There was no animosity between them. Appellant sold Harvey some marijuana on the afternoon of November 28, 2001. That night, appellant was at his mothers house. He was sitting in his car when Harvey drove up and asked to buy a bag of "weed." Appellant lied and claimed not to have any marijuana because he never sold drugs from his mothers house. An argument ensued. Harvey pleaded, saying: "`Come on, Blood?" Appellant then heard somebody else say: "`Blood." Appellant turned, heard a gunshot and saw "the flash" of a gun. He also saw part of a hand belonging, "more than likely," to a Black person. Appellant ran and jumped into his brothers truck, parked nearby. Appellant claimed he was wounded when the fired bullet grazed his hand.
Appellant denied telling Detective Fines that Harvey had tried "to jack" him. He claimed that when he invoked his right to counsel, the detective became upset and threatened him. According to appellant, Detective Fines waived his pen and said he was going to "`do [appellant] anyway" because "`the pen is mightier than the sword." Detective Fines had a tape recorder with him.
Appellant denied shooting Harvey. He admitted prior felony convictions for spousal battery and inflicting injury upon a child.
During cross-examination, the prosecutor introduced the audiotape of appellants custodial interview to show Detective Fines had not threatened him. The tape was played for the jury and they were also provided with transcripts. Appellant admitted that the tape was a complete record of the interview, but testified Detective Fines had threatened him in an earlier interview.
DISCUSSION
1. Evidence of Third-Party Culpability.
Appellants defense was mistaken identity, which rested on his own testimony and the testimony of Makayla Basham, a prosecution witness. Basham testified that at the time of the shooting, a short, stocky Black man with braided hair was standing near the house of appellants mother.
In support of the defense theory, defense counsel sought to introduce evidence that a person named Richard King, Jr. had been detained as a suspect in the Harvey killing and his gunshot residue test was positive. Answering the courts question, however, defense counsel acknowledged that she had no other foundation for admitting the evidence, such as witnesses placing King near the shooting, or describing him as a short, stocky Black man with braided hair. Defense counsel told the court that she had "no information on Mr. King." The court granted the prosecutors motion to exclude the evidence for lack of relevance.
Appellant contends the court erred and denied him the right to present a defense by disallowing his evidence of third-party culpability. We agree with the trial court that the defense counsels offer of proof was deficient and find no abuse of discretion.
To be admissible, third-party evidence need not show substantial proof that the third person committed the offense; it need only be capable of raising a reasonable doubt of the defendants guilt. (People v. Yeoman (2003) 31 Cal.4th 93, 140.) "However, `evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendants guilt; there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Yeoman, supra, at pp. 140-141 quoting People v. Hall (1986) 41 Cal.3d 826, 833.) If third party evidence is relevant, it is admissible unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion. (Hall, supra, at p. 834.)
Here, the proffered evidence was not relevant because it failed to link King directly or circumstantially to Harveys death and thereby exonerate appellant of the killing. The fact that King had a positive gun residue test merely showed he had been in close proximity to a fired gun at some point in some place. Indeed, any inference from the test result that King was the man Basham and appellant purportedly saw at the shooting would be entirely speculative. (People v. Babbitt (1988) 45 Cal.3d 660, 682.) Accordingly, the evidence was properly excluded.
2. The Post-Miranda Statement.
Defense counsel moved to suppress all statements appellant made to Detective Fines after invoking his right to counsel during the tape-recorded custodial interview. The trial court denied the motion, finding the detective did not attempt to engage in further interrogation, or its functional equivalent, after appellant demanded an attorney. Rather the court determined that once appellant invoked his right to counsel, "innocuous conversation" occurred between him and the detective, culminating in appellants volunteered statement: "`Cant you tell? Do you know in about five minutes shit can happen?" Appellant now disputes the use of this last statement as violating his Fifth and Sixth Amendment rights as well as the prophylactic rules of Miranda. Appellant contends the challenged statement resulted from Detective Fines prolonged conversation with him, which was designed to elicit an incriminating response.
a. The interview.
When the interview commenced, appellant was advised of his Miranda rights and invoked his right to counsel. Detective Fines responded that he would honor the invocation and informed appellant that he would be booked for murder. The following colloquy then ensued between appellant and Detective Fines:
"APPELLANT: I already knew that.
"DETECTIVE FINES: Okay. But, uh
"APPELLANT: Im the only person [unintelligible] youre pointin at.
"DETECTIVE FINES: Im not — were not pointin at anybody. Uhm, weve done an investigation thats led us to you, and — were gonna book you for murder.
"APPELLANT: I already knew that.
"DETECTIVE FINES: Okay.
"APPELLANT: Alright.
"DETECTIVE FINES: Alright. Just being honest. Okay. Good luck.
"APPELLANT: Huh?
"DETECTIVE FINES: Good luck.
"APPELLANT: (Laughing) Shit. Oh, man, I dont have no good luck.
"DETECTIVE FINES: Okay.
"APPELLANT: Cant you tell? Well, do you know in about five minutes, shit can happen."
b. The law.
Before a suspect can be subjected to custodial interrogation, he must be informed of
the right to remain silent and to have counsel present during the interrogation. (Miranda,
supra, 384 U.S. at pp. 444-445.) Interrogation may only proceed where a suspect makes
a "knowing and intelligent" waiver of those rights. (Edwards v. Arizona (1981) 451 U.S.
477, 483-484.) If a suspect invokes the right to counsel at any time before or during
questioning, all interrogation must cease until a lawyer is made available or until the
suspect reinitiates the conversation. (Davis v. United States (1994) 512 U.S. 452, 458;
People v. Crittenden (1994) 9 Cal.4th 83, 128-130.)
"Miranda safeguards come into play whenever a suspect in custody is subjected to either express questioning or its functional equivalent. That is to say, the term `interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301.)
Not all conversation between an officer and a suspect constitutes interrogation. "The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response." (People v. Clark (1993) 5 Cal.4th 950, 985; see Rhode Island v. Innis, supra, 446 U.S. at p. 301.) The issue is whether the officer should have known that his or her words and actions were reasonably likely to elicit an incriminating response from the suspect based on the totality of circumstances. These circumstances include the place, time, length, and nature of the conversation, the conduct of the police and all other relevant circumstances. (People v. Stewart (1965) 62 Cal.2d 571, 579.)
A trial courts conclusion that a defendants Miranda rights were not violated is subject to de novo review and its underlying findings regarding interrogation are scrutinized for substantial evidence or clear error. (People v. Clark, supra, 5 Cal.4th at p. 985.)
c. The challenged statement was properly admitted.
The record does not establish that appellant was subject to "compelling influences, psychological ploys, or direct questioning" by Detective Fines to elicit an incriminating response. (Arizona v. Mauro (1987) 481 U.S. 520, 529.) Although, the length of the entire interview is unknown, the conversation leading up to the challenged statement appears brief and casual. Apprised he had been booked for murder, appellant responded that he was the only one targeted by police. Detective Fines explanation that appellants arrest was the product of an investigation was nothing more than a factual statement. It cannot be viewed as renewing interrogation. (See People v. Harris (1989) 211 Cal.App.3d 640, 647-648.) After trading one-word affirmative statements, the detective wished appellant "good luck" to which appellant responded "Huh?" In response, Detective Fines repeated himself. At this point, viewed objectively, the detective was merely in the process of wrapping up the interview. His "good luck" comment did not require any response, nor does the evidence suggest the detective reasonably expected one, after his innocuous exchange with appellant. Appellants challenged statement was therefore voluntary and spontaneous. It did not result from interrogation or its functional equivalent. (See People v. Clark, supra, 5 Cal.4th at pp. 985-986.)
Appellant relies on People v. Harris, supra, 211 Cal.App.3d 640, 649, to argue that Detective Fines unnecessary comments would be taken by appellant "as a prodding invitation to further discussion . . . ." We are not persuaded. In Harris the defendant, a murder suspect, left town. He telephoned police, claiming he was innocent but agreed to come to the station and "get it straightened out." After his arrest, the defendant invoked his Miranda rights. The officer ceased questioning and informed the defendant he was to be booked for murder. When the defendant reacted with surprise, the officer told him: "`I thought you were going to come back and straighten it out." The defendant acknowledged that he did wish to do so and ultimately confessed to committing the murder. (Harris, supra, at pp. 644-646.) Under the circumstances, the appellate court deemed the officers comment as the functional equivalent of further questioning. (Id. at p. 648.) Unlike the officer in Harris, Detective Fines neither invited nor prodded appellant to make incriminating statements. We also note that in contrast the murder confession in Harris, the challenged statement in this case was ambiguous and thus questionably incriminatory.
Finally, even if a Miranda violation occurred, it was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24) as there was overwhelming evidence of appellants guilt. The eye witness testimony corroborated by the forensic evidence and appellants other incriminatory statement to Detective Fines amply supported his conviction.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., JOHNSON, J.