Opinion
A146056
03-27-2017
THE PEOPLE, Plaintiff and Respondent, v. JOVAN STRONG, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR208712)
Defendant Javon Strong appeals a judgment convicting him of first degree murder and sentencing him to a term of 25 years to life in prison. He contends his constitutional rights were violated by the admission at trial of his girlfriend's involuntary statements to the police. We find no error and thus shall affirm the judgment.
Background
On September 6, 2011, defendant was charged with a single count of murder (Pen. Code, § 187, subd. (a)).
Prior to trial, defendant moved to exclude statements made by his girlfriend, Ineshia Elder, to police during an interview on August 18, 2008, on the ground that the statements were unreliable and impermissibly coerced. The prosecutor argued that defendant was collaterally estopped from re-litigating the issue because he had raised the same issue at the preliminary hearing and the trial court had found the statements voluntary and not the product of coercion. The trial judge denied the motion to exclude the statement, explaining, "I have reviewed [the videotape of the statements] and my original ruling stands. . . . I don't find [the interview] to be, as I mentioned, of a constitutional dimension requiring a finding or unrelated reason or some other reason to not allow inquiry into its depth."
At trial, evidence was presented that shortly before 2:00 a.m. on February 8, 2008, two men entered a 7-Eleven store and during the course of a robbery, one of the men shot and killed the store clerk. Surveillance video from the store was shown to the jury and in it the shooter can be seen dropping a plastic bag. The store owner reported that approximately five cartons of Newport cigarettes and $80 in cash were taken during the robbery.
Four days later, officers stopped a vehicle in which Diovanni Whitmire was a passenger and, in searching the car, found a distinctive handgun which they recognized as the gun seen on the video of the robbery. Later, DNA analysis tied Whitmire to the handgun and forensic analysis established that the gun had fired three casings recovered at the murder scene.
In July 2008, fingerprint analysis revealed that several fingerprints found on the plastic bag left by the shooter at the 7-Eleven store belonged to Whitmire, defendant and Elder.
On August 18, 2008, after executing a search warrant at her home, police detectives brought Elder to the police department for an interview. A video of the interview was played for the jury. The detectives informed Elder that her fingerprints along with those of defendant and Whitmire were on a bag recovered at the murder scene. The detectives also told her, as a ruse, that her DNA was on the same bag. She insisted repeatedly that she was at home the night of the robbery but could not explain her prints on the bag. She denied knowing anything about the crime. Eventually, however, she told detectives that on the night of the incident defendant had taken her car and when he returned, he was teary-eyed and told her that he and Whitmire had gone to "hit" the 7-Eleven and that Whitmire had shot the store clerk. She also disclosed that defendant took Newport cigarettes from the 7-Eleven store during the robbery and that she had seen about 30 or 40 packs of Newport cigarettes in a white garbage bag.
The jury found defendant guilty of first degree murder. The court sentenced defendant to a term of 25 years to life in prison.
Defendant timely filed a notice of appeal.
Discussion
Defendant argues that the trial court erred by denying his motion to exclude Elder's August 2008 statements to the police. He contends that the statements were coerced so that their admission, in the form of the videotaped interview and Elder's trial testimony, violated his right to a fair trial.
"[E]vidence which is produced by coercion is inherently unreliable and must be excluded under the due process clause." (People v. Lee (2002) 95 Cal.App.4th 772, 786-787; see also People v. Badgett (1995) 10 Cal.4th 330, 344, 349 [A criminal defendant has standing to prevent the use of involuntary third party statements at trial.].) When a defendant seeks to exclude coerced testimony of a witness, it is the defendant's burden to establish the statement was involuntary. (Badgett, p. 348 ["[T]here is a significant difference in the burden of proof applicable to a claim under the Fifth Amendment and defendants' claim that the testimony of a third party is subject to exclusion as a matter of due process."].) On appeal, we independently review the record to determine whether a witness's statements were coerced so that their admission rendered the defendant's trial unfair. (People v. Boyer (2006) 38 Cal.4th 412, 444.)
A witness's statements are deemed coerced if they are the product of police conduct which overcomes the individual's free will. (People v. Lee, supra, 95 Cal.App.4th at p. 782.) Defendant contends his girlfriend's statements to the police were coerced by deception, improper threats of prosecution and promises of leniency. He argues that the detectives' conduct was particularly coercive in light of his girlfriend's age (18 years old) and lack of criminal sophistication.
While "a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied" (People v. Jimenez (1978) 21 Cal.3d 595, 611, overruled on other grounds in People v. Markham (1989) 49 Cal.3d 63, 71 & People v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17), "the case law fails to support defendant's premise that a third party witness's statements are rendered inadmissible against a defendant if induced by improper offers of leniency." (People v. Ervin (2000) 22 Cal.4th 48, 83; see also People v. Badgett, supra, 10 Cal.4th at p. 354 ["We have never held, nor has any authority been offered in support of the proposition, that an offer of leniency in return for cooperation with the police renders a third party statement involuntary or eventual trial testimony coerced."].) As the Attorney General argues, "For the witness, offers of leniency or immunity in exchange for truthful testimony are commonplace and are not considered coercive. [Citation.] There is nothing improper in confronting a witness with the predicament he or she is in, with offering to refrain from prosecuting the witness if he or she will cooperate with the police investigation, or with offering to release the witness from custody in return for cooperation." All of the detectives' "promises" were before the jury so that the jury was able to determine what impact, if any, those promises had on the veracity of her statements.
Likewise, the detectives did not coerce Elder's statement by telling her that her DNA was found on the plastic bag. "California courts have long recognized it is sometimes necessary to use deception to get to the truth. Thus, the courts have held, a 'deception which produces a confession does not preclude admissibility of the confession unless the deception is of such a nature to produce an untrue statement.' " (People v. Lee, supra, 95 Cal.App.4th at p. 785, italics & fn. omitted.) Given that Elder's fingerprints were on the bag, there is no likelihood that any deception regarding her DNA produced an untrue statement.
Finally, the detectives did not improperly threaten to arrest Elder if she did not implicate defendant in the crime. People v. Lee, supra, 95 Cal.App.4th 772 is instructive. In Lee, the court held a third party witness's statement was coerced because the police threatened to charge the witness with the crime at issue if he did not name the defendant as the shooter. (Id. at pp. 785-786.) The court explained that the officer's statements "went beyond mere deceit as to the evidence pointing to [the witness] as the killer. He also went beyond merely exhorting [the witness] to tell the truth. He even went beyond threatening [the witness] with prosecution for first degree murder unless he named the real killer. [¶] [The officer] in essence told [the witness]: We will prosecute you for first degree murder unless you name [the defendant] as the killer." (Id. at p. 785.) The court concluded that the interrogation of the witness was "not designed to produce the truth as [the witness] knew it but to produce evidence to support a version of events the police had already decided upon." (Id. at p. 786.)
In this case, Elder was not under arrest at the time of the interview and contrary to defendant's argument, the officers never threatened to arrest her for murder or any other crime if she did not make a statement naming defendant as one of the robbers. At most, they told her, "This is a damn homicide and you're caught up in it" and told her she would have to explain why her fingerprints were on the bag. They repeatedly claimed they knew she had information about the crime and exhorted her to tell them the truth about what she knew. When she asked what would happen if she told the detectives what she knew about the crime, the officers answered, "You're either a witness in this or you're involved in this. I don't know which it is. Until you tell me what you know I don't know. I will do everything that I can to help you. [¶] . . . But we're gonna have to have the truth. Laid out. It's gonna have to be laid out. [¶] . . . No ifs ands or buts, no holding back, no minimizing." We have reviewed the video recording of Elder's police interview and find that the officer's conduct was within the permissible scope of a police interview. Although the two interrogating officers persisted in pressing Elder to tell them what she knew about the murder after she repeatedly and tearfully insisted she was home and knew nothing about it, the officers neither suggested the substance of what she should tell them nor made any threats or promises. The officers did tell Elder that it was in her best interest to relate what she knew because her fingerprints and DNA on the bag at the crime scene implicated her in the killing, but they did no more than to urge her to tell the truth. Under the totality of the circumstances, there is no basis to conclude that Elder's subsequent statements, after initially denying any knowledge, were coerced. There was no error in admitting her testimony or videotaped interview.
Disposition
The judgment is affirmed.
/s/_________
Pollak, J. We concur: /s/_________
McGuiness, P. J. /s/_________
Siggins, J.