Alameda County Super. Ct. No. H97978
The opinion of the court was delivered by: Kennard, J.
An amended information charged defendant Richard Christopher Tully with the 1986 murder of Shirley Olsson (Pen. Code, § 187) and assault with intent to commit rape (id., § 1203.065, subd. (b)).*fn1 The information also alleged a special circumstance that the murder was committed in the commission of a burglary and, as to both counts, that defendant used a dangerous and deadly weapon, to wit: a knife. (§§ 190.2, subd. (a)(17)(vii), 12022, subd. (b).)*fn2
Shirley Olsson, a 59-year-old nurse at the Livermore Veterans Administration medical center, was brutally murdered sometime in the night or early morning hours of July 24 to 25, 1986. A co-worker went to her residence and discovered Olsson's nude body in her bed; she had been stabbed 23 times. A bloody knife and Olsson's purse were found on the golf course that abutted her house. The screen to her bathroom window was found in a neighbor's backyard. The blood on the knife was the victim's. Several months later, a fingerprint and palm print on the knife were matched to defendant. Defendant, who had lived two houses down from Olsson's residence, admitted to police he had been at the victim's house the night she was murdered and had had sex with her, but claimed the murder was committed by another man.
A jury convicted defendant as charged and found true the special circumstance and weapon allegations. It then returned a verdict of death, which the trial court declined to modify. This appeal is automatic. We affirm the judgment.
1. Prosecution evidence a. Shirley (Sandy) Olsson's murder and the ensuing investigation*fn3
In July 1986, Sandy Olsson worked as a registered nurse at the Veterans Administration medical center in Livermore. Her specialty was ostomony -- caring for people who had colostomies -- and she also worked as a charge or supervising nurse. Typically, she worked Monday through Friday, arriving sometime between 7:00 and 7:30 a.m. and leaving at 4:00 p.m. Olsson was 59 years old and divorced with two adult children, a daughter, Sandra Walters, and a son, Elbert "Tripp" Walters III. For much of the year she lived alone at 1556 Hollyhock Street, except from October through March when her father, Clifford Sandberg, came from Kansas and stayed with her. Olsson's residence backed up against the Springtown Golf Course.
The portrait of Olsson that emerged from the testimony of various witnesses was of a person of fairly set habits. When she arrived home from work, she locked the front door with a chain lock. After changing her top, she poured herself a glass of Coca-Cola and added a little bourbon to it. When her father visited, he and Olsson ate dinner together and watched television. She usually rejected his suggestions that they do something in the evenings because she was tired from work. Instead, she went into her bedroom with her drink to read her mail, magazines, and the newspaper. Olsson's daughter testified that Olsson went to bed sometime between 9:00 and 10:00 p.m. She first went through her house and made sure all the windows and doors were locked. Olsson was a modest woman who slept in a pair of men's flannel pajamas.
Olsson's father testified that during his annual visits to his daughter, she never had any male visitors. Her social life apparently consisted of occasionally going out to dinner with work friends.
On Thursday, July 24, 1986, Olsson arrived for work at the Veterans Administration medical center at 7:00 a.m. and left at around 4:00 p.m. She walked to her car with another nurse, Deborah Gifford. Gifford testified that Olsson was in a good mood because she was flying to Topeka that weekend for a family celebration of her father's 85th birthday. Olsson's across-the-street neighbor, Elden Freeman, saw her arrive home sometime between 4:15 and 4:45 p.m. From his living room, Freeman saw Olsson leave her den at about 8:00 p.m. and then turn off the light in the room at about 10:00 p.m. At that point, there were no other lights on at her house that he could see.
At about 4:00 a.m., Linda Rocke, who lived in a house on the opposite side of the golf course from Olsson, was awakened by her dog's barking. She took the dog outside to keep it from waking the rest of her family. In her backyard, Rocke found what looked like a small bathroom screen. It had not been in her backyard earlier.
Olsson failed to appear at work the next morning, July 25. This was unusual because Olsson was described as "very reliable" by her colleague Maxine Gatten. When Olsson failed to appear by 7:25 a.m., Gatten called her residence but did not get an answer. Later, she again unsuccessfully tried to reach Olsson by phone. She discussed the matter with other nurses; they worried that Olsson might be sick, because she had complained about chest pains. Eventually, Gatten left the matter of Olsson's absence to another nurse, Barbara Green.
Green and Olsson had a close relationship. They shared an office and frequently ate lunch together. Olsson brought her lunch to work in a paper sack that she kept in her purse. Her lunch sometimes included fruit, like grapes. Green was aware that Olsson was flying to Kansas the next day for her father's birthday. When, at about 8:45 a.m., Gatten told Green that Olsson had not reported for work, Green became "[v]ery concerned." After she, too, failed to reach Olsson by phone, Green drove to Olsson's residence. Green found Olsson's car parked in the driveway and the newspaper in front of her house. She went to the front door, rang the bell, knocked, and called Olsson's name, but did not receive a response. She looked in through a glass panel at the front of the house; there was no movement inside.
Green went around to the back where the house abutted the golf course. The windows and the sliding door were locked. However, she noticed the bathroom window was open. She could not reach it on her own, so she pulled a wooden plant stand beneath it and climbed onto the stand. She was still unable to see through the window. Eventually, Green enlisted the help of Olsson's neighbor, Freeman.
Freeman knew Olsson well enough that she would ask him to water her plants and watch her house when she was on vacation. He had been expecting Olsson to bring him the key to her house so he could take care of it while she was in Kansas. As of Friday morning, the day before she was leaving, she had not done so. Green went to Freeman's house and, after explaining that she had been trying to reach Olsson, asked to use the phone. Green called 911. When there was no response from the 911 call, she and Freeman returned to Olsson's house. With Freeman's help, she managed to get high enough to see through the bathroom window. In the bathroom mirror, she saw Olsson's reflection. Olsson was lying naked on her stomach across her bed; there was a puddle of blood on the floor beneath her head. Green "knew that [she] had to get in as soon as [she] could because [she] had to stop the bleeding." Freeman returned to his house and got a ladder. Using the ladder, Green entered the house through the bathroom window. Freeman went around to the front door and waited.
Green went to her friend's side. She saw "slits" on Sandy Olsson's back, "blood dripping down her face," and "her left eye was bulging out of her head." Her bedclothes were crumpled beneath her. She touched Olsson's body; it was cold. She left the bedroom to find a phone to call 911. As she left the bedroom, she saw a framed photograph had fallen from the wall to the floor while another photograph, still on the wall, was crooked and broken. She was unable to find the phone and went to the front door. She saw that a chain lock had been broken; two of the screws that attached to a plate on the door were hanging from the chain. She opened the door and let Freeman in. She told him she could not find the phone. Freeman told her the phone was in the shape of a Coca-Cola bottle and where she would find it. Green called 911 and told the operator that Olsson had been murdered. Before long, a police officer arrived. He asked Green if Olsson was dead. Green tried unsuccessfully to get a pulse. She told the officer that Olsson was dead. At some point, Green left the house and went to Freeman's residence.
Sergeant Scott Robertson of the Livermore Police Department was put in charge of the investigation. He arrived at the house at about 9:45 a.m. He conferred with other officers already at the crime scene and then walked though the house. There were some green grapes on the living room carpet. He observed signs of a struggle in the front entryway, where he saw a framed photograph that had apparently fallen to the floor and two photographs on the wall that were slightly askew. Just inside the master bedroom he saw another photograph that had fallen from the wall. He also observed signs of a forced entry into the house in the form of the broken slide chain latch on the front door.
In Olsson's bedroom, he observed blood splatters on the closet door and a smear of blood on a light switch. He examined Olsson's body and saw wounds he believed were consistent with a forced entry into the house. There were bruises on Olsson's forehead and lips that seemed to be consistent with the edge of a door. There was a similar bruise on the outside of her left ankle. Beneath her body police found a pair of flannel pajamas and blankets. There was a glass of Coca-Cola and a glass of bourbon on the nightstand next to the bed. A bathrobe and pair of slippers were on the floor. On a desk in the bedroom were folded clothes, evidently put there by Olsson for her trip to Kansas. Robertson found no money in the house but a receipt in the kitchen indicated Olsson had received change of $3.95 from a supermarket purchase the prior evening.
Around noon, Judith Williams and Cathie Garton were finishing a round of golf at the Springtown Golf Course. They saw a purse floating in a pond on the course. They fished the purse out of the pond and took it into the clubhouse. The purse contained Olsson's hospital identification card, driver's license, credit cards and checkbook, among other items, as well as some loose grapes. It had no cash in it.
Later that afternoon, police searched the golf course for the murder weapon, assisted by security officers from the Lawrence Livermore Laboratory. At about 3:00 p.m., one of those officers, Renorise Conn, discovered a bloody knife beneath a tree in knee-high brush. That evening, police retrieved the window screen that Linda Rocke had discovered in her backyard the previous night. Police determined that the screen belonged to Olsson's master bathroom window.
Pathologist Sharon Van Meter autopsied Sandy Olsson's body. Dr. Van Meter counted 23 stab wounds. The wounds were consistent with the knife recovered from the golf course, a Buck 110 knife. Apart from the stab wounds, Van Meter found hemorrhaging of Olsson's neck and larynx muscles consistent with strangulation. Van Meter also observed injuries to Olsson's lip and head consistent with her head having come into contact with the edge of a door being forced open. While Van Meter found no trauma to Olsson's vaginal area, she testified that the absence of such trauma did not mean Olsson had not been forced to submit to sexual intercourse before her death. Van Meter testified that the cause of death was shock and hemorrhaging, as the result of multiple stab wounds, associated with asphyxia due to fractures of the larynx. Olsson may have survived for more than an hour after the wounds were inflicted.
The blood on the knife was consistent with Olsson's blood. The sheets on her bed had bloodstains that indicated they had been used to wipe off the bloody knife. Forensic examination of Olsson's body, clothes, and bedding failed to reveal the presence of semen or spermatozoa. The criminalist who conducted the examination testified that her findings did not rule out the possibility of sexual intercourse if the assailant had not ejaculated.
Two identifiable prints were recovered from the knife handle. Between July 25, 1986, and March 1, 1987, the Livermore Police Department submitted the names of 40 or 50 possible suspects to the California Department of Justice for fingerprint comparison purposes. Among the prints submitted were defendant's. However, the fingerprint analysts were unable at that time to match the prints on the knife or any prints taken from the crime scene to a suspect.
b. Defendant is connected to the murder
In July 1986, John Chandler lived on Hollyhock Street, two houses from Olsson's residence. Chandler was the boyfriend of defendant's mother and had known defendant since defendant was 15 years old. Defendant had lived with Chandler, moving out only three weeks before Olsson was murdered. Defendant kept a key and sometimes stayed at Chandler's house. He also received mail and phone messages there. Chandler told the district attorney and a district attorney investigator that he was with defendant when defendant purchased a Buck 110 knife in September 1985.*fn4
On March 17, 1987, Sergeant Robertson had a conversation with Officer Scott Trudeau, also a member of the Livermore Police Department.*fn5 Based on that conversation, Robertson resubmitted defendant's prints for analysis. A fingerprint and a palm print on the murder weapon were matched to defendant's right ring finger and right palm. On March 27, Robertson arrested defendant.
That same day, defendant was interrogated by Robertson and Detective Mike Newton, also of the Livermore Police Department. Defendant acknowledged that his mailing address was John Chandler's residence and admitted to having lived there. He claimed, however, that he had never met Sandy Olsson and had never been in her house. When Robertson told him that his fingerprints had been found on the knife that killed Olsson, defendant denied any involvement. He said his knife had been stolen from his car in the spring of 1986. Defendant, who said he read about the murder in the newspapers, suggested it was a "domestic type of killing."
Robertson also told defendant's wife, Vicky Tully, that defendant's fingerprints had been identified on the murder weapon. Robertson and Newton met with Vicky Tully the following Monday, March 30, 1987. Afterwards, the officers talked to defendant again.
At the second interview, defendant told the following story: At some point in the early morning hours of July 25, 1986, he met up with a man he knew only as "Doubting Thomas," who was a member of the Hell's Angels. Defendant had already consumed four or five 12-ounce beers and four or five 4-ounce "kamikazes" at a bar in Pleasanton. Thomas told defendant he wanted to go to the house of a woman who lived on Hollyhock Street in Livermore, from whom he bought drugs that she obtained from the hospital. When defendant told Thomas he rented a room from John Chandler on the same street, Thomas said "that worked out good" and told defendant to park at Chandler's because it was "only a couple of houses down" from their destination. The two men walked to the woman's residence. Thomas entered first and then signaled for defendant to enter. While Thomas and the woman talked in her bedroom, defendant waited in the living room where he found a bottle of whiskey and "took a few pulls off" of it.
He heard Thomas and the woman start to argue. After they calmed down, Thomas motioned for defendant to come into the bedroom and asked him if he "wanted to have a little fun" with the woman. Defendant entered the bedroom and found the woman naked on her bed. He had intercourse with the woman but was too drunk to maintain an erection and did not ejaculate. He was in the bedroom for under ten minutes and left feeling "kinda stupid."
Defendant went back out into the living room while Thomas rejoined the woman in the bedroom. He heard Thomas and the woman arguing again; "[i]t sounded like they were wrassling or he was knocking her around or something." Defendant went to the hallway to listen in and the woman came charging naked out of the bedroom and ran into him. Thomas came out and pulled the woman back into the room by her throat and hair. Defendant returned to the living room. Within a matter of minutes, it got quiet and Thomas came out of the bedroom. Defendant went into the bedroom and saw the woman lying naked on the bed with multiple stab wounds on her back. He said he "was freaking out" and asked Thomas if he had killed her. Thomas said yes, but did not say why.
Observing that Thomas had been wearing leather gloves the entire time, defendant went to his car to get his gloves. When he returned he saw Thomas in the living room rummaging through a purse. Defendant attempted to wipe his fingerprints off any object he had touched. He and Thomas left through the patio door. Thomas handed defendant the knife defendant had had in his car. Defendant became angry that Thomas had used his knife to kill the woman. Thomas wanted to return to Chandler's house, but defendant told him, "we can't go back over there, you know, looking like we do." They walked toward the pond on the golf course. Defendant tossed the knife while Thomas, after taking what he wanted from the purse, threw it into the pond. Defendant gave some of his clothes to Thomas while he went to get his car. When he returned for Thomas, his clothes were gone and Thomas told him, "I stashed 'em so they won't be found."
Defendant sought to be placed in a witness protection program because he was afraid of Doubting Thomas. He denied having stabbed the victim.
Later that day, defendant spoke to a deputy district attorney and an investigator. Defendant again expressed interest in the witness protection program. The district attorney declined to make any promises, rebuffed defendant's request for a plea bargain, and reminded him that what he said could and would be used against him. Defendant then essentially repeated the story he had told the police. Defendant told the district attorney that other women had offered themselves to him for sex before, explaining, "Sometimes it was party situations, sometimes it was just, um, what they call a pass-around chick."
A review of medications handled by Olsson revealed no shortages of any controlled substance. Police identified "Doubting Thomas" as Thomas Pillard. His fingerprints were obtained and submitted to the California Department of Justice along with defendant's.
The defense called Sergeant Scott Robertson, who identified a pair of men's shoes recovered from a dumpster near the golf course as well as bedding items taken from the victim's bedroom. The defense also recalled criminalist Sharon Binkley regarding her examination of hair evidence taken from Olsson's bedroom. Binkley testified that all the hairs retrieved from the crime scene were consistent with Olsson's hair and inconsistent with defendant's hair, except for some reddish-brown hairs on a pillowcase (which evidently belonged to Olsson's daughter's dog) and two unidentified human hairs on a knitted blanket. The defense's only other witness was Charles Fraser, the deputy district attorney who had interviewed defendant on March 30, 1987. He testified to his experience as a trial lawyer, particularly to the number of cross-examinations he had conducted prior to his interview with defendant.
B. Penalty Phase 1. Prosecution evidence
The prosecution presented evidence that defendant had been involved in two physical altercations while in jail. On January 7, 1988, defendant engaged in a fistfight with another inmate during mealtime. Defendant received a split lower lip that required a stitch, while the other inmate suffered no visible injuries. On September 26, 1991, Alameda County Deputy Sheriff Michael Perkins saw defendant and another inmate in a "wrestling hold" with each other. They had to be forcibly separated. Defendant had some bumps and bruises on his face. The other inmate was treated for an eye injury.
The prosecution also presented victim impact evidence in the form of testimony from Sandy Olsson's adult children, Sandra Walters and Elbert "Tripp" Walters III; her sister, Jan Dietrich; and Olsson's then 91-year-old father, Clifford Sandberg. Sandra Walters, 35 years old at the time of trial, testified that her mother was her "best friend," and "meant everything to me." She stayed with her mother once a month and called her every week. Her mother's death had left her feeling "lost" and "afraid." She "didn't know who was going to take care of me if my mom wasn't around." Her first thought about her mother "is the horror of how she died," and she could not see a knife without remembering the manner of her mother's death. She testified that she slept "with a night light" and a "hatchet underneath my bed." She knew her mother had had breast cancer "but if she would have died by cancer, [Walters] could have at least said good bye to her." She remained angry because her mother had been taken from her and it had become hard for her to be close to anyone.
Tripp Walters testified that his mother was his "anchor," who had "unconditional love" for him even when he "a little bit wild" as a teenager and into his 20's. He described his mother as "happy" and "caring." Her death "turned [his] whole world upside down," was "devastating," and left him "very depressed." Since his mother's murder, he had married and he and his wife were planning to have a child. He would have understood if his mother had died from cancer but he could not understand that she was murdered.
Jan Dietrich, who lived in Washington, D.C., at the time of the trial, was Sandy Olsson's younger sister. They were each other's only sibling, and were close friends. They had travelled together in Europe and the United States. Dietrich testified that Olsson had planned to retire in three years and they had talked about Olsson's plans to travel. Dietrich had to tell her father about Olsson's death, and flew to Topeka, Kansas, so that she and her father could fly to California together. She and her father were at the airport at Topeka preparing to fly to California at about the same time Olsson's plane would have been arriving in Topeka for her father's birthday celebration. Dietrich felt no closure because of the manner of her sister's death.
Clifford Sandberg testified he and his daughter had planned to buy a car together after she retired and to use it to travel. At 91, he had experienced the death of many people, but the manner of his daughter's death still caused him difficulty.
Derek Mendoca, the inmate with whom defendant was fighting on January 7, 1988, testified that he threw the first punch because defendant had wiped mustard or ketchup on Mendoca's shirt. He and defendant were friends before the fight and were friends afterwards.
Defendant's older siblings, Shirley Brown and Roger Tully, also testified. Brown testified that defendant was born in Turkey, one of five children their mother had by three different men. Defendant's father, Richard Ross Tully (Richard Ross), was Brown's stepfather; their mother's name was Louise. Richard Ross was in the Air Force and the family moved often. Richard Ross also received assignments that took him away from home for long periods of time. Once, when he was gone for six months, Louise began living with another man.
Richard Ross had a drinking problem, and he and Louise "were always fighting." Louise was the physical aggressor. She was very demanding of the children, "wors[e] than a drill sergeant." Brown was ashamed of her stepfather's constant drinking because she "didn't know what he was going to do." If he was at home "he was drinking." Richard Ross's drinking affected his career -- he lost rank and was forced to enter a rehabilitation clinic. Once, when Brown was age 11, her stepfather came into her room, asked her if she wanted to learn how boys kissed, and tried to lay her down on her bed. She told her mother about the incident but Louise did nothing.
Defendant was a bed wetter. He was also the object of his mother's rage and she would call him stupid. Brown left home as soon as she graduated from high school, but continued to have emotional and psychological problems, for which she was hospitalized. She had visited defendant in jail and corresponded with him and she wanted to continue to do that.
Roger Tully, defendant's older brother, was adopted by Richard Ross Tully but was not his natural son. At the time of defendant's trial, Roger was a burglary detective in the Baton Rouge Police Department, where he had also served as a homicide detective.
During defendant's childhood, neither Richard Ross nor Louise was often at home, and responsibility for taking care of him fell to Roger and Shirley. Richard Ross was drunk most of the time he was at home, if he came home at all. Sometimes he drank to the point of hallucinating. Once, on a camping trip, he got so drunk he thought he was in a sinking boat in the lake where they were camped. He began screaming, "Get out, get out, get out. We're going down, we're going down." Roger tried to tell him they were not in the lake, but parked next to it. Richard Ross would also be brought home by the military police with black eyes and other injuries. Both he and Louise had affairs. Once Roger discovered his mother naked with another man. He also found incest pornography in his parents' bedroom.
Richard Ross and Louise fought over his drinking. Often she would rouse the children from sleep and they would be "hauled off to a friend's house or a neighbor's house." The fights were sometimes physical. One night Roger came home and found broken glass everywhere. Later, he saw Richard Ross on the kitchen floor with a skillet over his head; he had apparently been knocked cold. Richard Ross would leave, and then Louise channeled her anger at her children. Discipline was inconsistent and her rules were arbitrary. Louise hit her children with her hands and a belt. Defendant was a particular target of his mother's anger. Louise was "volatile" and had no close friends. Roger had had to intervene when his mother attempted suicide; it was the last time he saw her.
Roger reacted to the family's dysfunction by "act[ing] out." He experimented with drugs and ran away from home. When Roger was age 17, he became involved in a church. His mother threw him out of the house and he went to live with a family he had met through the church. For the first time, he experienced "what a normal life is." He tried to share his religious experience with defendant, but Louise would not allow defendant to go to church with Roger.
Roger said about defendant's actions, "The only thing between me being up here and him being there, was the fact that I had a religious conversion when I was 18 . . . . He's got to take his responsibility for his [actions], but as far as how it all came out . . . it's the most normal, natural result. I don't blame him."
Defendant's 18-year-old niece, Ursula -- Shirley Brown's daughter -- testified that she had begun to correspond with defendant while he was in jail on the present charges and she had come to feel comfortable confiding in him. She hoped to continue their relationship. Defendant's son Richard Anthony Tully, known as Tony, testified that he often spoke to his father on the phone and received letters from him. He wanted his father to live.
II. DISCUSSION A. Suppression Motions 1. Motion to suppress asserting unlawful detention on March 7, 1987
Sandy Olsson was murdered on July 24 or 25, 1986; by March 1987, the police investigation had failed to yield a suspect. On March 7, 1987, however, defendant was detained for driving on a suspended license. This led to his arrest on drug charges and ultimately to his arrest for Olsson's murder. Prior to trial, defendant brought two motions to suppress the fingerprint evidence that linked him to the murder weapon and also statements he made to police during interrogations on March 27 and March 30, 1987. The first suppression motion asserted this evidence was the poisonous fruit of his illegal detention on March 7, 1987. (See Wong Sun v. United States (1963) 371 U.S. 471, 484.)
a. Evidence adduced at hearing
On March 7, 1987, Officer Scott Trudeau of the Livermore Police Department was conducting surveillance of the residence of Kenneth Perry, a known narcotics offender. Trudeau was alone in his unmarked patrol car. Two other officers, Timothy Painter and Jeff Shweib, were nearby. At about 8:00 p.m., Trudeau saw a Fiat Brava drive past him with two occupants. He recognized the passenger as Ed Snyder. He also recognized the driver -- defendant -- because he had stopped him two or three months earlier, but did not recall his name. The Fiat passed Trudeau twice before parking near Perry's residence. Trudeau described the occupants to Painter. Painter identified the driver as defendant. Painter had taken a vandalism report a week earlier allegedly involving defendant. Painter told Trudeau defendant was driving on a suspended driver's license and that there was an arrest warrant out for Snyder.
Defendant got out of the car and went into the building where Perry lived, emerged 20 to 25 minutes later, and drove away. Trudeau followed and stopped him. Trudeau stopped defendant because of the license violation and Snyder's arrest warrant. He approached defendant and asked him for his driver's license and his registration. Defendant gave Trudeau his license but could not find his registration. While Trudeau was talking to defendant about his license and registration, Painter and Shweib were at the passenger side of the car talking to Snyder. Painter took Snyder to his own car where Shweib remained with him. Trudeau returned to his vehicle to write out the citation. He completed most of the citation in his car, but defendant still had to sign it and there were some boxes on the citation which required further discussion with defendant.
While Trudeau was in his patrol car, Painter approached defendant, who was now standing outside his car. Because of the vandalism incident, Painter knew defendant was a narcotics user who was normally armed and liked to use a knife. Painter had been told by the victims that they and defendant had been involved in a drug deal "gone sour" and defendant had retaliated against them by damaging their car with a knife. At that point, however, the vandalism incident was closed. Defendant had not even been listed as a suspect because there was no definite evidence of his involvement. Even if he had admitted vandalizing the car, Painter would not have arrested him because it was a misdemeanor that had not been committed in his presence. He could only have written up a report and asked for a complaint. Painter's purpose in talking to defendant was to obtain information that either confirmed or discredited what he had been told about defendant's involvement in the vandalism.
Painter told defendant "what had been said about him being a narcotics user and being armed" with a knife. He asked defendant if he could search him. Defendant said, "Sure, I don't have anything on me." Painter searched defendant by using a flashlight. He held the flashlight and peered in defendant's clothing and around him but did not want to "squeeze things too much" because he was afraid of being stuck by a needle.*fn6 Painter found a bindle in the coin pocket of defendant's left pants pocket. The bindle contained white power that Painter believed was methamphetamine. He turned it over to Trudeau.
As Trudeau returned to defendant's car to complete the citation, he heard Painter ask defendant for consent to search and defendant reply "[s]omething to the effect, you know, go ahead and knock yourself out, something like that." Trudeau heard Painter say he was concerned that defendant carried weapons but could not recall "[w]ord for word" what Painter said when he asked defendant if he could search him. After Painter gave Trudeau the bindle, Trudeau asked defendant for permission to search his car. Defendant said, "[S]ure, go ahead." Trudeau found three hypodermic syringes and a bent, burnt spoon. Defendant was then arrested for possession of methamphetamine, possession of hypodermic syringes and driving on a suspended license. He was transported to the police station where a booking search revealed seven or eight bindles of methamphetamine secreted in his underwear.
Trudeau read defendant his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), which defendant waived. However, when Trudeau told defendant he "was going to ask [defendant] questions pertaining to the items that were found on him, [defendant] told [Trudeau] he didn't want to talk to [him]." Trudeau stopped questioning defendant. Defendant then "initiated [a] conversation about how he did not want to go to jail on that particular evening." Trudeau told him there were "ways for that not to occur," specifically that they could reach an agreement for defendant to "work off his offense," by becoming an informant. Defendant was interested and Trudeau went out to call a narcotics detective, Detective Jensen. While he and defendant were waiting for Jensen to arrive, they talked. Trudeau learned that defendant had been in the Marine Corps, was injecting himself with methamphetamine four or five times a day, and supported his habit by breaking into cars and houses and selling items he took from them. He also told Trudeau that he was being treated for stomach problems at a Veterans Administration hospital. Trudeau told defendant that what he had revealed about his drug habit and the way he supported it would not be used against him, and it did not appear in the police report. After Jensen arrived, Trudeau left the room. Jensen came out and said he and defendant had reached a deal. Defendant was released that night.
At this point, Trudeau knew very little about the Olsson investigation, although he had read an FBI profile of it. It "never entered [his] mind" that defendant might be a suspect in that crime. Trudeau was off work for a few days after the interview with defendant. When he returned he discovered he still had defendant's driver's license attached to his clipboard. He sought out Detective Jensen, who told him the deal with defendant was off because defendant had failed to keep his end of the bargain. Jensen said he was going to file the drug case. Trudeau said he would return defendant's license to him. He drove to the residence listed on defendant's driver's license -- 1572 Hollyhock -- and realized it was only two houses from where Sandy Olsson had lived. He remembered defendant had told him he was being treated at a Veterans Administration hospital and that Olsson was a nurse at the Veterans Administration medical center. He also remembered that the FBI profile suggested that the suspect lived in the area of the crime scene and was probably a drug user. Trudeau went to the address but found no one home. He returned to the police station and talked to Sergeant Robertson about defendant. As he was leaving, he ran into another officer, John Leal. Leal told Trudeau that defendant was a suspect in an assault with a deadly weapon case. Trudeau conveyed this new information to Robertson. He suggested Robertson run defendant's fingerprints against the prints found on the murder weapon.
Sergeant Robertson and his men had canvassed between 150 and 200 houses around the crime scene. Defendant's name had not come up from this canvass. Between July 1986 and March 1987, Robertson had looked at around 30 potential suspects. He had sent fingerprint cards of potential suspects to the California Department of Justice in Sacramento to compare to the prints found on the murder weapon but there had been no matches. Defendant's fingerprints had been among those sent to Sacramento.*fn7
As of March 17, 1987, when Trudeau approached him, Robertson had a new supervisor, Sergeant Jack Stewart, who had been assigned to the case in January 1987. He told Robertson he wanted to recanvass the entire neighborhood to determine who owned each house, and who had been living in the houses, whether as renters or visitors, at the time of the murder. A plot map of the houses surrounding the murder scene indicated that 1572 Hollyhock, where defendant had lived, had been double-checked during the first canvass to verify that someone at the residence had been interviewed. Both Robertson and Stewart testified that the new canvass would have resulted in a triple check of that address. Stewart also testified that he planned to run a computerized address check to identify all residents at houses around the scene of the crime. He was also going to see if it was possible to run a computer check through the Department of Motor Vehicles to determine whose driver's licenses listed those houses as their residence.
Based on the information about defendant provided to Robertson by Officer Trudeau on March 17, 1987, Robertson took defendant's fingerprint card, from a 1973 juvenile offense, and hand-delivered it to the Department of Justice in Sacramento. Angelo Rienti, a latent fingerprint analyst, told Robertson that defendant's fingerprint matched the print on the murder weapon.*fn8 Defendant's palm print, taken after his arrest, was later matched to a partial palm print on the murder weapon.
Defendant was arrested on March 27, 1987, at the home of his wife's parents. Police went there with arrest warrants on drug charges. Sergeant Stewart and Detective Tart went to the front door of the residence while Sergeant Robertson and Detective Newton were deployed to the rear. Diane Holbert, Vicky Tully's mother, answered the front door. She told police defendant was not there, but let the police into her house to talk to her. Once inside, Stewart asked Holbert if she knew where Vicky was. Holbert said no. However, as they were talking Stewart saw a woman in the hallway who he thought was Vicky Tully leaving one room and about to enter another. He asked her if she was Vicky Tully. She said yes and asked why he wanted to know. Stewart told her he was looking for defendant. Vicky looked at the door she was walking toward and told police defendant was asleep inside the room. She said she would get him because he did not have clothes on.
As she opened the door, Stewart went swiftly down the hall and told her the police would get him. At that point, the door was opened about a foot. Stewart saw a man lying on his stomach with his head on a pillow. Stewart entered the room, yelled at him to wake him and asked him if he was Richard Tully. Stewart identified himself as a police officer. Defendant woke slowly and identified himself as Richard Tully. Stewart told him the police had warrants for his arrest. Defendant was arrested, handcuffed and taken to jail wearing only a pair of blue jeans.
Defendant's initial motion, filed on February 2, 1992, asserted that all evidence arising from defendant's initial detention on March 7, 1987, and from his subsequent arrest on March 27, 1987, should be suppressed as a product of an illegal search and seizure. Following the hearing on the motion, defendant was allowed to file a supplementary motion specifying the grounds for suppression. These included: (1) any consent by defendant to a search of his person in the course of the March 7 vehicle stop was invalid as the product of an unlawful interrogation because he was not given a Miranda warning; (2) even if valid, the search of defendant's person exceeded the scope of his consent; (3) statements he made after his arrest on March 7 on drug charges regarding his drug use and criminal activity were involuntary; and (4) entry into the bedroom where he was arrested violated section 844's knock-notice requirement. The prosecution argued the stop was lawful but, even if it was illegal, the fingerprint comparison evidence connecting defendant to Olsson's murder was not tainted by such illegality. The prosecution also argued that the fingerprint comparison evidence would have inevitably been discovered in light of the new investigative measures that Sergeant Stewart intended to undertake.
The trial court concluded that the search of defendant's person did not exceed the scope of his consent. It found further, however, that the statements he made following his March 7 arrest about his drug use, his criminal activity to support his drug use -- breaking into homes and cars -- and that he was being treated at a Veterans Administration hospital were involuntary and must be suppressed because he had been told these statements would not be used against him.
Nonetheless, the court declined to suppress the fingerprint comparison evidence because it "was not tainted by the illegally obtained statements and is admissible." Specifically, "[a]t the time the involuntary statements were obtained, the officer had no reason to suspect or believe the conversation would turn up evidence of any crime other than the narcotics offenses. In the court's view, this was a case of investigatory serendipity." The court also found "the police would inevitably have again compared defendant's prints with those found on the knife found at the murder scene." On this point, the court found "credible" the prosecution's evidence that in the "normal course of the continuing murder investigation, [defendant] would have emerged as a prime suspect quite apart from the statements he gave to Officer Trudeau."
"In reviewing a suppression ruling, 'we defer to the superior court's express and implied factual findings if they are supported by substantial evidence, [but] we exercise our independent judgment in determining the legality of a search on the facts so found.' " (People v. Lomax (2010) 49 Cal.4th 530, 563.)
Thus, while we ultimately exercise our independent judgment to determine the constitutional propriety of a search or seizure, we do so within the context of historical facts determined by the trial court. "As the finder of fact . . . the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable." (People v. Woods (1999) 21 Cal.4th 668, 673.) We review its factual findings " ' "under the deferential substantial-evidence standard." ' " (People v. Ayala (2000) 23 Cal.4th 225, 255.) Accordingly, "[w]e view the evidence in a light most favorable to the order denying the motion to suppress" (People v. Manderscheid (2002) 99 Cal.App.4th 355, 357), and "[a]ny conflicts in the evidence are resolved in favor of the superior court's ruling." (People v. Limon (1993) 17 Cal.App.4th 524, 529.) Moreover, the reviewing court "must accept the trial court's resolution of disputed facts and its assessment of credibility." (People v. Valenzuela (1994) 28 Cal.App.4th 817, 823.)
Because the Attorney General asserts that many of defendant's arguments on appeal are forfeited by his failure to have advanced them in the trial court, we must also briefly examine the question of when an argument not made to the trial court is, nonetheless, cognizable on appeal.
Constitutional claims raised for the first time on appeal are not subject to forfeiture only when "the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court's act or omission, insofar as wrong for the reasons actually presented to the court, had the additional legal consequence of violating the Constitution." (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17, italics omitted; see People v. Yeoman (2003) 31 Cal.4th 93, 117.) However, "[a] party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct." (People v. Partida (2005) 37 Cal.4th 428, 435.)
Defendant contends he was unlawfully detained because the duration of the traffic stop was excessive in relation to its purpose. Additionally, he claims that Officer Painter's questions about defendant's involvement in the vandalism incident were unjustified by the purpose of the stop and lacked a separate "reasonable suspicion" of criminal activity. He concludes that because the detention was excessive and the questioning unjustified, his consent was involuntary. Additionally, he asserts his consent to search his person was involuntary because he was not given Miranda advisements before consent was sought.
Only the Miranda claim was argued below; the others are forfeited. The questions raised by these arguments -- whether the duration of the stop was excessive and whether Painter's questions were proper -- involve analyses the trial court was not asked to conduct and potentially required factual bases additional to those adduced at the hearing.*fn9 The claims are also without merit.
" 'As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. (Whren v. United States (1996) 517 U.S. 806, 810 [135 L.Ed.2d 89, 116 S.Ct. 1769].) If there is a legitimate reason for the stop, the subjective motivation of the officer is irrelevant." (People v. Lomax, supra, 49 Cal.4th at p. 564, fn. omitted; see People v. Torres (2010) 188 Cal.App.4th 775, 785-786.) "[T]he law contemplates that the officer may temporarily detain the offender at the scene for the period of time necessary to discharge the duties that he incurs by virtue of the traffic stop." (People v. McGaughran (1979) 25 Cal.3d 577, 584 (McGaughran); see People v. Brown (1998) 62 Cal.App.4th 493, 496-497.) Those duties may "necessarily include the time required by the officer to write out the citation and obtain the offender's promise to appear . . . . [U]pon demand of a police officer every motorist must present for 'examination' both his driver's license [citation] and the registration card of the vehicle [citation]. . . . And although not specifically compelled by law, certain other steps customarily taken as matters of good police practice are not less intimately related to the citation process: for example, the officer will usually discuss the violation with the motorist and listen to any explanation the latter may wish to offer; and if the vehicles of either are exposed to danger, the officer may require the driver to proceed to a safer location before the investigation continues. [Citations.] [¶] Each of the foregoing steps, of course, requires a certain amount of time to accomplish." (McGaughran, supra, at p. 584, fn. omitted.)
Defendant argues that "once [the citation] process was completed, there was no cause to detain him for questioning, and any consent to search, which was obtained from [defendant] during the illegal questioning was tainted." This claim assumes that the citation process was completed when Officer Painter questioned defendant about the vandalism incident and asked to search him. Not so.
After Trudeau asked defendant for his license and registration, and discussed them with him -- while Painter and Shweib were removing Snyder from defendant's car -- Trudeau testified he went back to his car to write the citation, but still had to obtain defendant's signature and discuss with defendant some boxes on the citation form. While Trudeau was in his car working on the citation, Painter approached defendant, spoke to him about the vandalism incident and asked for his consent to search. Thus, defendant was not detained after the completion of the citation process to allow Painter to question him. As the factual predicate of his argument falls, the argument itself -- that the detention was excessive in relation to the time required by Trudeau to complete the citation process -- also collapses.
Moreover, Painter was permitted to ask defendant about matters unrelated to the traffic stop so long as the questioning did not prolong the stop beyond the time required to cite defendant. (See McGaughran, supra, 25 Cal.3d at p. 584 ["[i]f a warrant check can be completed" within the period of time necessary for the completion of the citation process, "no reason appears to hold it improper: because it would not add to the delay already lawfully experienced by the offender as a result of his violation, it would not represent any further intrusion on his rights"], fn. foll. quote; see People v. Bell (1996) 43 Cal.App.4th 754, 767 ["investigative activities beyond the original purpose of a traffic stop are permissible as long as they do not prolong the stop beyond the time it would otherwise take"].)
In People v. Brown, supra, 62 Cal.App.4th 493, the defendant was lawfully detained for riding a bicycle without a light or reflectors. While running a warrant check, the detaining officer asked the defendant about his probation status and, evidently, the contents of his fanny pack. A consent search of the pack yielded methamphetamine. On appeal, the defendant argued that it was improper for the officer to have questioned him about matters unrelated to the vehicle stop. The reviewing court rejected the claim: "Questioning during the routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation. Mere questioning is neither a search nor a seizure." (Id. at p. 499; see United States v. Shabazz (5th Cir. 1993) 993 F.2d 431, 435-437 [where car stopped for speeding, police could question defendant about his travels and ask consent to search his car as long as they were waiting for results of computer check on his driver's license].)
In People v. Bell, supra, 43 Cal.App.4th 754, where a similar claim was raised, the court observed: "Defendant argues that . . . police cannot ask questions unrelated to the purpose of the traffic stop, regardless of whether those questions prolong the stop. The warrant check in McGaughran, [supra, 25 Cal.3d 577] however, was unrelated to the purpose of the traffic stop; nevertheless, the court held that a warrant check would be permissible as long as it did not prolong the stop." (Id. at p. 767.) Nor must questioning on an unrelated matter, which does not unduly prolong the traffic stop, be justified by reasonable suspicion of wrongdoing. (People v. Gallardo (2005) 130 Cal.App.4th 234, 238 [where, during traffic stop, police asked defendant whether he had anything illegal in his car, obtained his consent to search and found drugs, an articulable suspicion of wrongdoing preceding search request was not required "as long as the detention [was] not unreasonably prolonged as a result of the request to search"].)
Accordingly, we reject defendant's claims that the traffic stop detention was unduly prolonged, that Painter's questions about the vandalism incident were improper because they were unrelated to the traffic stop, or that a separate reasonable suspicion of wrongdoing was required before Painter could inquire or seek consent to search, or that defendant's consent was obtained in the course of an illegal detention.
Defendant claims that his consent to search his person was improper because Painter did not give him his Miranda rights before questioning him about the vandalism incident. In Berkemer v. McCarty (1983) 468 U.S. 420 (Berkemer), the Supreme Court held that a routine traffic stop, although a detention, is not tantamount to a formal arrest, and, therefore, questions asked during such detentions do not constitute a custodial interrogation requiring Miranda warnings. (Id. at pp. 435-440.) The court characterized routine traffic stops as similar to Terry stops (Terry v. Ohio (1968) 392 U.S. 1), which permit police to briefly question individuals about whom the police entertain a reasonable suspicion of criminal activity that falls short of probable cause. "[T]his means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released. The comparatively non-threatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly non-coercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not 'in custody' for the purposes of Miranda." (Berkemer, at pp. 439-440, fns. omitted.)
Here, defendant was lawfully detained for a traffic violation during which Officer Painter asked him questions about the vandalism incident either to confirm or dispel his information that defendant had been involved. While defendant was not free to leave until the citation process was completed, he was under no obligation to answer Painter's questions. Unless his answers had provided Painter with probable cause to arrest him for vandalism -- which, in any case, Painter testified he could not have done -- he would have been free to leave once the citation was completed. Accordingly, pursuant to Berkemer, Painter was not required to give defendant Miranda warnings before questioning him and his failure to do so did not invalidate defendant's consent to search. We reject defendant's assertions to the contrary.*fn10
Next, defendant argues that the search of his person exceeded the scope of his consent because he consented only to a search for weapons, not drugs. He claims "Painter exceeded the scope of any consent when he forced his fingers in[to] the coin pocket of [defendant's] jeans in hopes of finding narcotics, under the pretext of searching for a knife, which could not possibly fit in that pocket." "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness -- what would the typical reasonable person have understood by the exchange between the officer and the suspect?" (Florida v. Jimeno (1990) 500 U.S. 248, 251.) "Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of the circumstances. [Citation.] Unless clearly erroneous, we uphold the trial court's determination." (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408; see United States v. Sierra-Hernandez (9th Cir. 1978) 581 F.2d 760, 764.)
Defendant's argument focuses on a perceived discrepancy about what Officer Painter said he told defendant. At the suppression hearing, Painter testified that he told defendant he wanted to search him for weapons and narcotics, while at the preliminary hearing Painter testified he searched defendant because he thought he might have a weapon, but made no mention of narcotics. Defendant also cites testimony by Officer Trudeau who, when asked whether he heard Painter say something to defendant about weapons but not drugs, replied, "He said weapons, correct."
Defendant's focus is too narrow. The question is what a reasonable person would have understood from his or her exchange with the officer about the scope of the search. To answer that question, we look at the totality of the circumstances. Here, Painter testified that he told defendant about his information that defendant used drugs and carried a knife. When he asked defendant if he could search him, defendant said, "Sure, I don't have anything on me." When Painter was confronted by his seemingly inconsistent testimony about whether he had asked to search for both a weapon and drugs, he responded, "I recall mentioning the weapon and I recall mentioning the narcotics use. But I -- apparently made reference in the transcript of searching for weapons. But I don't recall exactly narrowing my scope of my search at that point." As for Trudeau, his response was, at best, ambiguous and, in any event he also testified that he did not remember what Painter said to defendant "[w]ord for word," in asking his consent to search.
Thus, Painter knew defendant was an armed drug user, and communicated his awareness to defendant before he asked to search him. It is therefore reasonable to conclude -- as evidently the trial court did -- that defendant understood Painter was asking to search for both drugs and weapons. It appears, moreover, that the trial court found Painter to be a credible witness. We do not second-guess the trial court's credibility findings nor, on the record before us, can we conclude its implied determination that defendant understood the search to be for both drugs and weapons was clearly erroneous. For this reason, we reject defendant's further claim that the consent search of his car, his arrest, and the search of his person at the police station were tainted by the illegality of the initial search.
Defendant asserts that his statements to Trudeau that were suppressed by the trial court because they were induced by Trudeau's promise not to use them against defendant -- a promise broken when he repeated them to Sergeant Robertson -- should also have been suppressed because they were taken in violation of Miranda. From this premise, he argues that all further evidence connecting him to Olsson's murder should have been suppressed as the fruit of the Miranda violation. Not so. Trudeau advised defendant of his Miranda rights. Defendant invoked those rights by declining to speak about the events surrounding his arrest. At that point, Trudeau ceased his questioning. Defendant reinitiated the conversation when he told Trudeau he did not want to go to jail that night, after which Trudeau suggested defendant might "work off" his offense by becoming an informant. Defendant indicated his interest, and a narcotics detective was summoned. While he and Trudeau waited for the detective, defendant made the statements at issue here. Thus, it was defendant who reinitiated the conversation of his own volition after Trudeau had acceded to his initial invocation of his right to remain silent. There was no Miranda violation. (Edwards v. Arizona (1981) 451 U.S. 477, 484-485; People v. Mickey (1991) 54 Cal.3d 612, 648-649.)
As noted, although the trial court suppressed defendant's statements to Trudeau on the ground they were induced by Trudeau's promise not to use them against defendant, it went on to find that the fingerprint evidence need not be suppressed either because it was the result of "investigative serendipity," or would inevitably have been discovered. Defendant contends the latter rulings were error. The Attorney General contends it was the trial court's initial finding that defendant's statements were involuntary that is the error here. The Attorney General argues that there is no substantial evidence those statements were induced by Trudeau's promise not to use them because defendant spoke voluntarily before Trudeau made that promise. We agree.*fn11
"In general, a confession is considered voluntary 'if the accused's decision to speak is entirely "self-motivated" [citation], i.e., if he freely and voluntarily chooses to speak without "any form of compulsion or promise of rewards . . . ." [Citation.]' [Citation.] However, where a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary and inadmissible as a matter of law." (People v. Boyde (1988) 46 Cal.3d 212, 238.) "A confession is 'obtained' by a promise within the proscription of both the federal and state due process guaranties if and only if inducement and statement are linked, as it were, by 'proximate' causation. . . . The requisite causal connection between promise and confession must be more than 'but for': causation-in-fact is insufficient." (People v. Benson (1990) 52 Cal.3d 754, 778.) "This rule raises two separate questions: was a promise of leniency either expressly made or implied, and if so, did that promise motivate the subject to speak?" (People v. Vasila (1995) 38 Cal.App.4th 865, 873.) To answer these questions " 'an examination must be made of "all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation." ' " (People v. McWhorter (2009) 47 Cal.4th 318, 347.)
Officer Trudeau testified that defendant made the statements in question while he and Trudeau were conversing as they awaited the arrival of the narcotics detective with whom defendant was going to work out an agreement that would allow him to be released that night in exchange for becoming a police drug informant. When asked specifically whether "this information about the use of methamphetamine and how [defendant] supported his habit" was made "in response to something . . . you said to him," Trudeau testified, "No, it was not." Rather, Trudeau testified these statements were made "after [defendant] had agreed to work his case off." Moreover, it was only after defendant made these unsolicited statements that Trudeau told him those statements would not be used against him in the drug case.
Trudeau's uncontroverted testimony establishes that defendant's statements about his drug use and burglaries were made after defendant had already agreed to "work off" his arrest, were not solicited by Trudeau, and were not part of any inducement for defendant to become an informant. Furthermore, Trudeau's testimony shows that the promise he made to defendant not to use those statements -- the very promise that the trial court ruled rendered those statements involuntary -- was not given until after the statements had been made. There is simply no evidence in the record, much less substantial evidence, to support the trial court's ruling that Trudeau's promise induced the statements. Rather, the statements were gratuitous and untethered to any promise made by Trudeau.
Accordingly, we conclude that the trial court erred when it suppressed defendant's statements as involuntary. Those statements should have been admitted and it was unnecessary for the trial court to justify admission of the fingerprint evidence as having been purged of the taint of the involuntary statement or as admissible under the inevitable discovery doctrine. Likewise, it is unnecessary for us to address the propriety of those justifications.
Inasmuch as we conclude that the fingerprint comparison evidence was not the fruit of any illegal police conduct, we necessarily reject defendant's further claim that his eventual arrest for the Olsson murder and statements he made to police on March 27 and March 30, 1987, were likewise tainted.
2. Motion to suppress defendant's statements on March 27 and March 30, 1987 a. Evidence adduced at hearing
Shortly before trial began, defendant moved to suppress the statements he gave to police on March 27 and March 30, 1987. During the March 27 interrogation defendant admitted to having lived at John Chandler's residence two houses from Olsson's residence. He otherwise denied knowing Olsson or having any involvement in her murder. During the March 30 interrogation, however, he claimed he had been taken to Olsson's house by a man he knew as "Doubting Thomas" to purchase drugs from her. Defendant admitted he had had sexual intercourse with Olsson but blamed "Doubting Thomas" for her murder.
Defense counsel argued the statements were obtained in violation of defendant's Miranda rights and were also involuntary.
Sergeant Robertson testified that defendant was taken into custody on March 27, 1987, at about noon. When arrested, he was wearing only a pair of blue jeans, but no shirt or shoes. Robertson could not recall if defendant was given clothing at the police station. At the same time defendant was arrested, his wife, Vicky Tully, was instructed to come to the police station because she was being investigated for writing checks on insufficient funds. The check investigation had originally been assigned to Robertson but was reassigned to Detective Jacobs, to whom Vicky Tully spoke. She admitted the charges, but she was not arrested because it was the policy of the Livermore Police Department to refer such cases to the district attorney for a misdemeanor complaint.
The police interrogation of defendant on March 27 began about 6:00 p.m. The interrogation was conducted initially by Sergeant Robertson and Detective Newton. Toward the end of the session, however, Officer Trudeau came in and Detective Newton left. At first, the police used a concealed microphone but, because the quality of the recording was poor, they replaced it with a microphone that they put on the table at which they and defendant were sitting. The interrogation ended at 12:05 a.m.
At the outset of the interrogation, defendant was advised of, and waived, his rights. During the interrogation, defendant was supplied with candy bars, pizza, and soft drinks and allowed cigarette and bathroom breaks. At one point, he was put into an ankle shackle because the officers were in and out of the room. Toward the end of the interview, Robertson asked defendant if he would take a polygraph test. Defendant asked, "Do I have a choice?" Robertson replied with a series of rhetorical questions about whether defendant was being coerced, e.g., "Do I have a rubber hose?" "Hot lamp?" "Water dripping on your face?" "[A] gun to your head?" Defendant replied in the negative. Robertson continued, "There's your choices."
"A. Well this charge you placed on me and the accusations, to say the least are serious, I think it would be --
"Q. In the State of California there is nothing more serious than murder.
"A. Then I think it would behoove me to consult a lawyer.
"Q. Okay. Before submitting to a polygraph examination?
"A. Um, yeah. Before submitting to any questions I wouldn't want to answer."
After some further discussion about polygraph machines and their fallibility, defendant said, "I think it best that if, if I wanted to face, I think it'd be best if I consult a lawyer." He and Robertson discussed whether defendant knew how the machines worked. Defendant said, "I don't know [so] that's why I'd like to talk to somebody who does." There was a short break in the interrogation. When it resumed, Robertson said, "When we last left this tape, we were talking about polygraph and you mentioned talking to a lawyer. Do you want a lawyer now? [¶] A. No. I'm all right. [¶] Q. You're sure? [¶] A. Yeah."
At the conclusion of the interrogation, Vicky Tully and defendant spoke for about five minutes. Afterwards, defendant was transported to the county jail.
On Sunday, March 29, Vicky Tully called the police station and asked to speak to Robertson or Newton about information she had regarding the case. Neither officer was on duty that day, so Roberson did not talk to her until Monday, March 30. Vicky Tully came to the police station and told Robertson defendant had been present at the murder but that "Doubting Thomas" had killed Sandy Olsson. She and Robertson talked about the witness protection program because she was afraid of Doubting Thomas. Robertson told her if the information she had given him was true, and if she qualified, arrangements could be made for her to go into the program but that the final decision rested with the district attorney.
Robertson and Newton then went to the jail to talk to defendant. Vicky Tully followed in her own car. The taped portion of the March 30 interview began at 8:08 p.m. Before the taping began, the officers told defendant about the information his wife had given them. Defendant did not respond. Robertson thought that defendant "was thinking," because he might be frightened of Doubting Thomas. He told defendant that he and his family might possibly qualify for the witness protection program. Less than a minute passed between the time Robertson initially confronted him with what Vicky had said and when he told him about the witness protection program.*fn12 Defendant asked about the program and there was some further discussion about it, after which he wanted to speak to his wife. She entered the room and she and defendant spoke privately. After she left, the taped portion of the interview began. Defendant was again advised of and waived his rights. After acknowledging and waiving his rights, defendant asked, "Can you add in the part about the Witness Protection program[?]" Newton replied, "Ok, prior to this tape being come on [sic] . . . we've discussed with [defendant] and with [defendant's] wife Vicky that some testimony that might be given or furnished by [defendant] might involve . . . the Witness Protection Program, be it the Federal and [sic] the State level. . . . I've assured [defendant] that in the event that the testimony and what information that he has meets that criteria then we would work on the Witness Protection Program and get he and his wife involved in that program. This testimony may be involving . . . the Hells Angels. Is that correct Richard? [¶] [A]: Yes it is."
Defendant also testified at the suppression hearing. According to defendant, his family's participation in the witness protection program was the "key part" in his decision to talk to police. He also testified that the police told him unless he cooperated his wife would go to jail on "the check charges" and his children would be placed in foster homes. Detective Newton, who was also called by the defense, denied any such threats were made.
Defense counsel argued that defendant's March 27 interrogation was taken in violation of Miranda because his statement "Then I think it would behoove me to consult a lawyer" was an invocation of his right to counsel. Counsel argued defendant's March 30 interrogation violated Miranda because his lack of response when initially confronted by police with the information given them by his wife was an invocation of his right to remain silent. Defense counsel also argued that the statement was involuntary because it was induced by the promise of placing defendant and his family in the witness protection program.
The trial court denied the motion in its entirety. The court found that defendant did not "unambiguously invoke his right to counsel" during the March 27 interrogation, nor did his failure to immediately respond to the officers at the beginning of the March 30 interrogation constitute an invocation of his right to remain silent. The court also concluded, based on "the totality of the circumstances," that discussions of the witness protection program did not render defendant's statement on March 30 involuntary.
Defendant contends that his March 27 statement was obtained in violation of Miranda because the police continued to question him after he had invoked his right to counsel. "In Edwards v. Arizona, 451 U.S. 477 (1981), we held that law enforcement officers must immediately cease questioning a suspect who has clearly asserted his right to have counsel present during custodial interrogation." (Davis v. United States (1994) 512 U.S. 452, 454 (Davis).) In Davis, the Court had held that such invocation must be unambiguous. "As we have observed, 'a statement either is such an assertion of the right to counsel or it is not.' [Citation.] . . . [A] suspect . . . must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect." (Davis, at p. 459.) Moreover, the court "decline[d] to adopt a rule requiring officers to ask clarifying questions." (Id. at p. 461.) "Consistent with Davis, a reviewing court . . . must ask whether, in light of the circumstances, a reasonable officer would have understood a defendant's reference to an attorney to be an unequivocal and unambiguous request for counsel, without regard to the defendant's subjective ability or capacity to articulate his or her desire for counsel, and with no further requirement imposed upon the officers to ask clarifying questions of the defendant. [Citation.] In reviewing the issue, moreover, the reviewing court must 'accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. [The reviewing court] independently determine[s] from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.' [Citation.]" (People v. Gonzalez (2005) 34 Cal.4th 1111, 1125.)
Applying these standards to the facts before us, we uphold the trial court's ruling. The context in which defendant referred to an attorney was not a request for counsel for purposes of the interrogation then occurring, but an indication that, if required to submit to a polygraph test, he would first want to consult with a lawyer. This interpretation of his initial remark is reinforced by further statements he made in the context of the fallibility of polygraph machines and his lack of understanding of how they operated, i.e., "I think it best that if, if I wanted to face [it], I think it'd be best if I consult a lawyer," and "I don't know [so] that's why I'd like to talk to somebody who does." Finally, any ambiguity regarding his meaning was dispelled when, after a short break, Sergeant Robertson, referring to his earlier mention of lawyer while discussing the polygraph test, asked him pointblank, "Do you want a lawyer now?" to which defendant replied, "No. I'm all right." Robertson pressed him, asking, "You're sure?" Defendant replied, "Yeah." Thus, defendant did not unambiguously invoke his right to counsel during the March 27 interrogation and the police were not required to cease their questioning.
We also conclude that defendant's momentary silence when confronted by police with his wife's statements to them at the beginning of the March 30 interrogation was not an invocation of his right to remain silent. "As Miranda itself recognized, police officers must cease questioning a suspect who exercises the right to cut off the interrogation. . . . 'Whether the suspect has indeed invoked that right, however, is a question of fact to be decided in the light of all the circumstances . . . .' [Citation.]" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1238.) The standard of review is the same as set forth above with respect to whether a defendant has invoked his or her right to counsel. (See People v. Crittenden (1994) 9 Cal.4th 83, 128-129.)
Sergeant Robertson testified, "We informed [defendant] that Vicky had come to see us and had told us what he had told her regarding the homicide scene [and] Doubting Thomas." Thus, defendant was not accused of the murder himself nor asked any questions about it. Indeed, the information the police told him had been provided by his wife exonerated him of the murder. When defendant failed to immediately respond, Robertson, thinking he might be apprehensive about Doubting Thomas, explained that he and his family might qualify for the witness protection program. Defendant asked about the program and then to speak to his wife. It appears that the entire exchange was relatively brief. Defendant's ultimate response -- asking about witness protection and to speak to his wife -- indicates not that he was invoking his right to remain silent but that he was nonplussed to learn his wife had talked to the police. He seems simply to have been absorbing the information when he failed to immediately respond to Robertson's statement. Therefore, defendant's momentary silence was not an invocation of the privilege against self-incrimination.
Defendant maintains that both his March 27 and March 30 statements were involuntary. The Attorney General contends that defendant did not specifically argue involuntariness with respect to the March 27 statement and has thereby forfeited the claim on appeal. Defendant responds by citing evidence adduced during the hearing that he claims shows that the statement was involuntary. Even if there was evidence that could have supported such an argument, the argument was not made. The only argument trial counsel made to the court regarding the March 27 interrogation was that the statement was taken in violation of defendant's invocation of counsel. Thus, with respect to the March 27 interrogation, trial counsel never mustered evidence in support of an involuntariness claim and the trial court was never asked to undertake a voluntariness analysis. Accordingly, the argument is forfeited.*fn13
Defendant renews his claim that his March 30 statement was involuntary because it was induced by the promise he and his family could enter the witness protection program. As a corollary, he claims the police manipulated Vicky Tully into getting him to incriminate himself. He also asserts the police acted deceptively when they suggested defendant and his family might qualify for the witness protection program because, at the time they made the suggestion, they already believed defendant was guilty of the Olsson murder. Defendant also maintains police threatened to prosecute his wife on the check charges and put his children into foster care.
"It is well settled that 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.) "In terms of assessing inducements assertedly offered to a suspect, ' "[w]hen the benefit pointed out by the police . . . is merely that which flows naturally from a truthful and honest course of conduct," the subsequent statement will not be considered involuntarily made. [Citation.]' " (People v. Howard (1988) 44 Cal.3d 375, 398.) "The prosecution has the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made. [Citations.] In determining whether a confession was voluntary ' "[t]he question is whether defendant's choice to confess was not 'essentially free' because his [or her] will was overborne." ' [Citation.] Whether the confession was voluntary depends upon the totality of the circumstances. [Citations.] ' "On appeal, the trial court's findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court's finding as to the voluntariness of the confession is subject to independent review." ' [Citation.]" (People v. Carrington (2009) 47 Cal.4th 145, 169.) " '[W]hen a reviewing court considers a claim that a confession has been improperly coerced, if the evidence conflicts, the version most favorable to the People must be relied upon if supported by the record. [Citations.]' " (People v. McWhorter, supra, 47 Cal.4th at p. 357.)
Defendant bases his involuntariness claim on interpretations of the evidence and questions of the credibility of witnesses that the trial court implicitly rejected. Because substantial evidence supports those factual determinations, we rely on them and, therefore, independently reject defendant's claim that his March 30 statement was the result of either threats or promises.
Defendant claims that the police promised him they would place him and his family into a witness protection program if he spoke to them. The record dispels the assertion. Robertson testified that he told both Tullys the same thing: if they were being truthful, they might qualify for witness protection, but the final decision would be made by the district attorney. Deputy District Attorney Fraser, who interviewed defendant after the police, confirmed that he could make no promises to defendant. Fraser repeated this statement at the end of the interview, reminded defendant that everything he had disclosed could and would be used against him, and admonished him that Fraser would compare defendant's statement against the physical evidence. Even defendant's own testimony fell short of asserting that explicit promises were made to him by the police about witness protection. He testified that the police "explained" the program and "talk[ed]" to him about it but, when asked whether he had pressed Detective Newton about any promises, he acknowledged he did not do so.
To the extent there was conflict in the evidence about whether the police promised defendant protection, the trial court resolved it in favor of the prosecution. The record provides substantial evidence in support of its finding and we are bound by it. Thus, the evidence shows only that defendant was told if his statement was truthful and he otherwise qualified, he and his family could be placed into a witness protection program if the district attorney approved. Therefore, the police did no more than permissibly point out a possible benefit that might accrue from his " ' "truthful and honest course of conduct. " ' " (People v. Howard, supra, 44 Cal.3d at p. 398.) Accordingly, his statement was not induced by a promise to place him and his family into witness protection.
We also reject his claim that the police manipulated his wife into persuading him to make a statement. The trial court found credible the police officers' testimony that they did not engineer Vicky Tully's initial discussion with defendant at the end of the interrogation on March 27, where he evidently told her the "Doubting Thomas" story. Moreover, it is undisputed that Vicky Tully contacted the police on her own and asked to speak to Robertson or Newton about what defendant had told her. Finally, the trial court evidently rejected defendant's testimony that the police threatened to prosecute his wife on the check charges and place his children into foster care if he did not speak to them. Again, we are bound by the trial court's resolution of conflicts in the evidence and its credibility determinations. Finally, and for the same reason, we reject defendant's assertion that the police had already concluded he was the murderer before they spoke to him on March 30 and, therefore, their offer of protection was a deception to induce him to speak to them. When defense counsel asked Sergeant Robertson whether he had believed defendant's account of the murder, Robertson testified that he had not known what to believe and wanted to "gather more information . . . [to] continue the investigation."
On this record, we conclude that defendant's March 30 statement was not involuntary.
B. Excusal of prospective jurors for cause 1. Overview
Defendant contends the trial court erred in removing for cause five prospective jurors who expressed reservations about the death penalty, thereby violating his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and article I, section 16 of the California Constitution.*fn14
"A prospective juror in a capital case may be removed for cause if his or her views on capital punishment 'would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." ' (Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct. 844].) Because prospective jurors 'may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings' (id. at p. 425), 'deference must be paid to the trial judge who sees and hears the juror' and must determine whether the 'prospective juror would be unable to faithfully and impartially apply the law' (id. at p. 426). We have adopted this standard for determining whether excusing for cause a prospective juror in a capital case based on the prospective juror's views on capital punishment violates the defendant's right to an impartial jury under article I, section 16 of the California Constitution. [Citations.] [¶] 'On appeal, we will uphold the trial court's ruling if it is fairly supported by the record, accepting as binding the trial court's determination as to the prospective juror's true state of mind when the prospective juror has made statements that are conflicting or ambiguous. [Citations.]' [Citation.] 'In many cases, a prospective juror's responses to questions on voir dire will be halting, equivocal, or even conflicting. Given the juror's probable unfamiliarity with the complexity of the law, coupled with the stress and anxiety of being a prospective juror in a capital case, such equivocation should be expected. Under such circumstances, we defer to the trial court's evaluation of a prospective juror's state of mind, and such evaluation is binding on appellate courts. [Citations.]' [Citation.]" (People v. Thomas (2011) 51 Cal.4th 449, 462-463.)
" ' "There is no requirement that a prospective juror's bias against the death penalty be proven with unmistakable clarity. [Citations.] Rather, it is sufficient that the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law in the case before the juror." [Citation.] "Assessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court. " ' [Citation.]" (People v. Abilez (2007) 41 Cal.4th 472, 497-498.)
Initially, defendant argues that the trial court improperly "excluded jurors who could not promise they would vote for death based solely on the [trial court's description of the] bare facts of the capital offense." Defendant failed to object to the trial court's description of the offense and, therefore, his claim is forfeited. Moreover, in his opening brief defendant fails to identify which jurors were improperly dismissed based on the trial court's summary of the offense. In his reply brief, defendant argues, "it was the trial court's jury selection protocols, admonitions, and questions that led to the systematic exclusion of the five jurors, and others, as raised in the Opening Brief."*fn15 As we demonstrate, however, the trial court's excusal of those five prospective jurors was entirely correct and, therefore, no error can be attributed to the trial court's description of the offense. In the same vein, defendant argues the prospective jurors excused by the trial court were improperly excused because of their attitudes toward the particular facts of this case, rather than their abstract inability to impose a death sentence. Again, however, our conclusion that the five prospective jurors were properly excused subsumes and rejects this complaint.*fn16
2. Specific challenges*fn17 a. Prospective Juror M.D.
On his juror questionnaire, Prospective Juror M.D. wrote about his general feelings regarding the death penalty, "I do not feel that it works very well as a deterrent to crime, but in some cases it is necessary and perhaps the best solution." He wrote he was "[m]oderately in favor" of the death penalty and held no religious, moral or philosophical views that would affect his ability to vote for the death penalty. As to whether he would vote for a death penalty law were it to appear on the ballot, he wrote, "I just don't want to make that choice until I have to."
The court asked M.D. whether he could listen to the penalty phase evidence and consider both death and life without possibility of parole after having found beyond a reasonable doubt that "the defendant, either alone or with somebody else, had burglarized the house of the woman by the name of Shirley Olsson. That she had been intentionally killed by way of multiple stab wounds, perhaps as many as 25 of those. You may also have found that she was assaulted with an intent to commit rape." M.D. replied, " I think I could." Under questioning by defense counsel, however, M.D. acknowledged he entertained some "ambivalence" about the death penalty. Defense counsel continued: "[The prosecutor] is going to ask you, in effect, to sentence this man to death. If you get to the appropriate stage of the proceeding, he's going to ask you to decide by signing a verdict or raising your hand or being polled." He reminded M.D. he would taking the first step of putting defendant "in the gas chamber" and asked whether M.D.'s ambivalence "would be so great as to impact upon that decision?" M.D. replied: "Honestly, I would have to say that that's a possibility. Because I've always had to deal with the death penalty in a theoretical context. I never had to apply it." He added, "I would tend against the death penalty, but that doesn't mean I would definitely vote against the death penalty." However, he then said that, given the special circumstances in this case -- what defense counsel called "a burglary" that "went awry" -- "I would be very hard pressed to decide on the death penalty."
M.D. told the prosecutor that on a scale of 1 to 10, he was a three and a half in favor of the death penalty. He repeated that where the special circumstance was felony-murder involving burglary, he would not be open to imposing the death penalty. The prosecutor asked him again whether the "[d]eath penalty is out of the door" and he would "always go for life without possibility of parole in this type of case." M.D. replied: "Based only on the information I've gotten today, yes. I don't know what other information might sway my mind, but based on what you've told me today and what I've heard up to this point, I would have to say I would be inclined not to." The prosecutor asked a third time whether, in this case, "I could stand up here and ask you for the death penalty and I've got a shot?" M.D. replied, "I would have to say no, based on what I know now . . . but that's the only way I could answer the question because I don't know all the evidence." He added, "something may come up which would sway me. I don't know what it would be, I don't know where it would come up, but based on what I know now, I'd have to say no, that I can't." The prosecutor said: "If we're talking about a case of a person breaking into a home, and in the course of a burglary gone awry, as defense counsel says, a single person is killed. [¶] Given this type of fact situation, the death penalty is not a viable penalty here for you?" M.D. replied: "No, so long as the other option is available, life without possibility of parole."
The prosecutor challenged M.D. for cause. Defense counsel asked no further questions and submitted the matter. The trial court excused the juror.
The trial court did not abuse its discretion in excusing M.D. on the ground that his voir dire answers demonstrated that his "views would prevent or substantially impair the performance of his duties as a juror." M.D.'s responses indicated he would not consider the death penalty in a case like this where the special circumstance alleged was burglary murder. (See People v. Pinholster (1992) 1 Cal.4th 865, 917 [prospective juror properly excused where he "concluded that he would never vote for the death penalty in a burglary-murder case unless the killing were in fact premeditated"].)
We are not swayed by defendant's claim that M.D.'s responses indicated he might have been able to consider both penalties based on further evidence that might emerge at trial. He was told the case involved a brutal murder by the multiple stabbing and possible sexual assault of a victim in the course of -- as defense counsel described it -- a burglary gone awry. This was an accurate overview of the case. We are not persuaded acquainting him with further details would have changed his mind and made him more inclined to consider death. Moreover, while he said he might be swayed by additional information, he added, "I don't know what it would be," indicating there was no further circumstance he could think of that would allow him to consider the death penalty in this case.*fn18 Additionally, defense counsel had every opportunity to attempt to rehabilitate M.D. but made no effort to do so and submitted without argument on the prosecutor's challenge for cause. Finally, to the extent M.D.'s answers were equivocal, we defer to the trial court's evaluation of his state of mind. (People v. Thomas, supra, 51 Cal.4th at pp. 462-463.)
b. Prospective Juror E.H.
Prospective Juror E.H. indicated on her questionnaire that the death penalty "in some cases is necessary," described her view toward it as neutral and wrote she would have to "research" before she could decide how to vote were the death penalty law on the ballot. (Subsequently, she told defense counsel she would vote for a death penalty law.)
She told the court she could consider both penalties. But when defense counsel asked her whether the death penalty would be appropriate where a "man broke into a house to commit a burglary . . . and killed a lady who lived there, stabbed her to death 25 times," E.H. replied, "Based on that outline, I wouldn't think so." Even after he introduced the possibility of the perpetrator's intent to commit rape, E.H. indicated it was not the kind of crime where she would ...