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People v. Buskirk

July 24, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
NICHOLAS BUSKIRK, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of San Bernardino County, Rodney A. Cortez, Judge. Affirmed. (San Bernardino Super. Ct. No. FMB700183).

The opinion of the court was delivered by: Huffman, Acting P. J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

A jury convicted Nicholas Buskirk of second degree robbery (Pen. Code,*fn2 § 211), but found the attendant firearm use allegation not true (§ 12022.5). Buskirk admitted he had served a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Buskirk to a total prison term of six years.

Buskirk appeals, contending the trial court prejudicially erred in denying his motion to suppress his pretrial statements obtained in violation of the Fifth Amendment to the United States Constitution after he had invoked his right to counsel, in failing to instruct the jurors that a witness was an accomplice as a matter of law, and in failing to advise him of his Boykin-Tahl*fn3 rights before he admitted his prison prior was true. Buskirk also requests, and the People do not oppose, that this court review the sealed record of the in camera hearing conducted by the trial court regarding the testifying purported accomplice to determine whether any information should have been disclosed which would be relevant to her credibility as a witness, and if so, to permit him to file a supplemental brief on the question of prejudice due to the alleged erroneous nondisclosure by the trial court.

In the published portion of this opinion we determine Buskirk did not clearly and unequivocally invoke his right to counsel. In all other respects, we affirm.

FACTUAL BACKGROUND

On April 22, 2007, a masked man pointed a black gun at Lillian Abrams and said, "Give me your purse, bitch," as she was getting into her car in the parking lot of the Stater Brothers Market shopping center in Twenty-nine Palms in San Bernardino County, California. Scared, Abrams handed her purse to the man and he fled across the parking lot and a major intersection to Cactus Drive where he jumped into the passenger side of a tan Mazda truck and crouched down in the seat. Two men, who were in a car in the parking lot and had observed the robbery and the assailant get into the truck on Cactus Drive, memorized the license plate number of the truck as it drove away before returning to assist the victim and call 911.

San Bernardino County (SBC) Sheriff Deputy Steven Everhart responded to the scene of the robbery where he interviewed Abrams and the witnesses, obtaining a general description of the suspect and his clothes, and a license plate number for the Mazda truck in which he fled. Based on the interviews, Everhart also collected recent shoe imprints in a dirt field the suspect had run across to reach the truck on Cactus Drive.

On April 30, 2007, SBC Sheriff's Detective James Thornburg, assisting in the follow-up investigation of the robbery, received information from another sheriff's deputy that there were two people involved in the crime, named Buskirk and Nicole Alexander, and that Alexander drove a tan Mazda pickup truck similar to the one seen by the witnesses the day of the robbery. When Thornburg ran a check on Alexander's vehicle registration, it came back "with a Mazda pickup truck with a license plate [number] that was extremely close to the ones written down by the witnesses of the robbery."

Thornburg then located an address for Alexander on Henry Road in Wonder Valley, sent several deputies to confirm the address, authored a search warrant and executed it at that location the same day.

Buskirk was contacted by SBC sheriff's deputies Rick Millard and Jeffery Joling and subsequently arrested at the Henry Road address. During a search of the property, a pair of men's tennis shoes was found in Buskirk's mother's car that was parked in the driveway and a black BB gun, a utility bill in Buskirk's name and a day planner with his name inside were found in the house. Thornburg, who was an expert in tracking, noted that the measurement and tread on those shoes was similar to the shoe print found at the robbery crime scene.

After Buskirk was transported to the Morongo Basin Sheriff's station, he waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), initially denied any involvement in the robbery, but then changed his story after Thornburg told him that Stater Brothers had a surveillance video camera in the parking lot and that Alexander was in custody being interviewed. When Buskirk wanted a deal before talking further, Thornburg terminated the interview and walked Buskirk back to his cell. Although Buskirk expressed a desire at that time to again speak with Thornburg, the deputy told Buskirk he would have to come back later.

After Buskirk told another deputy at the jail that he wanted to talk again with Thornburg, Buskirk was interviewed again, but this time by SBC Sheriff's Detective Randy Warfield and Sgt. Jeff Joling. Buskirk admitted to Warfield that he had committed the robbery, but minimized his conduct, saying he only used a brown and black water pistol.

At Buskirk's trial, in addition to presenting the above evidence, Alexander testified and the prosecutor played for the jury the redacted portions of Buskirk's interviews with Thornburg and Warfield.

Alexander, who had originally been charged as a co-defendant in this case and had pled guilty to being an accessory after the fact and was awaiting sentencing, testified that according to her plea agreement she was to testify truthfully about the events surrounding the robbery. As background, she explained that she had met Buskirk while working at a Denny's restaurant and that he was good friends with both her and her husband who was a Marine deployed overseas at the time of the robbery. On the day of the robbery, Alexander had spent the day with Buskirk, first having lunch at his mother's house and then running errands with him in Twenty-nine Palms in her tan Mazda pick-up truck. At some point, she dropped Buskirk off at the Stater Brothers Market shopping center so he could pick up medication for his mother at the Rite Aid store next to the market while she looked at some properties for rent on Cactus Drive, a street adjacent to the shopping center.

A short time later, as Alexander was stopped in her car writing down information from a rental sign, she saw Buskirk running down the street with his sweatshirt hood over his head. He jumped into the passenger side of her truck holding a purse, crouched down in the seat and told her to "go" and "not to stop" because he had just snatched a purse.

She drove to some friends' house where, once inside, Buskirk rummaged through the purse and told her and the friends what had happened.

Later that evening, Alexander drove Buskirk back to her home on Henry Road. As she did so, Buskirk tossed some of the contents of the purse out the truck's window. Once they arrived at her house, Buskirk went into the backyard, doused the purse with lighter fluid and burned it in a fire pit.

About a week later, Alexander was contacted by sheriff's deputies and interviewed at the station house about the robbery. She initially lied about any involvement, but during a second interview admitted she drove the car in which Buskirk fled. Although Alexander conceded that Buskirk had talked in general about committing a robbery because he had done one before, she denied any knowledge that he was going to commit the robbery that day and denied planning to commit it with him. Alexander said that Buskirk had purchased the tennis shoes in evidence on the Friday before the robbery at a mall in Palm Springs and that he was in possession of a nine millimeter handgun on the day of the robbery.

Sgt. Joling additionally testified about his encounter with Buskirk outside of Alexander's house, stressing that in spite of Buskirk's denial that the Henry home was his primary residence, his day planner and a utility bill in his name for that address were found during the search of the home that day.*fn4

The Defense

On his behalf, Buskirk called Detectives Warfield and Thornburg as defense witnesses to further expound upon Alexander's evasiveness and untruthfulness during her interviews. He also presented the testimony of two volunteer workers at the Way Station, a Christian facility involved in providing food and clothing to the needy, who identified two food box slips dated April 26, 2007, one bearing Buskirk's name and the other with Alexander's name. One of the volunteers noted that the Way Station carried shoes similar to those in evidence that had been found with Buskirk at Alexander's house. The forms, however, did not indicate whether any clothing or shoes had been given along with the food to Buskirk or Alexander on April 26, 2007.

Buskirk additionally presented the testimony of a woman named Tanya Luke who had been driving on Cactus Drive near the time of the robbery. Luke saw a man wearing a hooded sweatshirt running down the street carrying a purse toward a tan Mazda truck that was pulling away from the curb and driving east toward her on Cactus. Luke then saw the man run across the front of the car and get into the passenger side of the truck. As the truck passed Luke's car going the opposite way, she saw that the driver of the truck was a thin, white male, about six foot two inches tall, who was wearing a baseball cap. Although Luke was able to get a partial license plate number of the truck, which she gave to the 911 operator, she did not think the photograph of Alexander's truck in evidence depicted the same truck she saw that day.

DISCUSSION

I. MOTION TO SUPPRESS BUSKIRK'S ...


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