Contra Costa County Superior Court No. 05-051785-4, Theresa J. Canepa, Judge Super. Ct. No. 05-051785-4
The opinion of the court was delivered by: Simons, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant and appellant Paul Westmoreland (appellant) was convicted by a jury of first degree felony murder, second degree robbery, and second degree burglary. On appeal, appellant contends the trial court erred in admitting his confession and the confession of a co-defendant, erred in admitting an autopsy report authored by a non-testifying forensic pathologist, abused its discretion in discharging a juror, and abused its discretion in excluding certain impeachment evidence.
We reverse the convictions for murder and robbery. In the published portion of this opinion, we address two issues. First, we conclude appellant's confession was involuntary because it was motivated by an interrogating detective's false assertion appellant would not receive a life sentence if he admitted to an unpremeditated killing during a robbery. Admission of the confession at trial was not harmless beyond a reasonable doubt. Second, to assist the trial court in the event of a retrial, we determine admission of the autopsy report did not violate appellant's confrontation rights under the California Supreme Court's recent decisions in People v. Dungo (2012) 55 Cal.4th 608 (Dungo) and People v. Lopez (2012) 55 Cal.4th 569 (Lopez).
In the unpublished portion of this opinion, we reject appellant's other claims of error.
Appellant was charged by information filed December 2005 with murder (Pen. Code, § 187)*fn2 (count 1), second degree robbery (§§ 211, 212.5, subd. (c)) (count 2), and second degree burglary (§§ 459, 460, subd. (b)) (count 3). The information alleged an enhancement for use of a deadly weapon (§ 12022, subd. (b)(1)) in counts 1 and 2 and alleged a felony murder special circumstance in count 1 (§ 190.2, subd. (a)(17)).*fn3
In July 2009, a jury found appellant guilty as charged and found true the enhancement allegations. In November 2009, the trial court sentenced appellant to life without the possibility of parole. This appeal followed.
On the evening of August 19, 2005, a Friday, the victim Francisco Sanchez went to a bar with his friends Andres Jiminez and Gregorio Zuniga. They spent several hours drinking before going to another bar called El Rodeo at around 11:30 p.m.
A female, later identified as Erica Gadberry, approached the men. According to Gadberry's trial testimony,*fn4 she had gone to El Rodeo that night with a plan to pose as a prostitute and lure a customer to a vacant apartment, where the victim would be robbed by appellant, her boyfriend. Earlier on the evening of August 19, 2005, Gadberry and appellant had entered a vacant apartment in their housing complex by breaking a window. They left the front door unlocked so that Gadberry would be able to re-enter the apartment for the robbery. Appellant had a steak knife to scare the victim.
Gadberry and appellant lived with appellant's mother and his sister, Laquita Richardson, in an apartment complex on Weldon Lane in Bay Point (apartment complex). On August 19, 2005, Gadberry arrived at El Rodeo with appellant and Richardson. Gadberry had told Richardson about the plan and Richardson agreed to go to El Rodeo with her.*fn5 Appellant went inside the bar but did not sit with or talk to Gadberry. Gadberry spent about an hour in El Rodeo before she spoke to Sanchez. Gadberry asked Sanchez, "Want to have a fiesta?" She wanted him to think she was going to have sex with him. She and Sanchez left the bar to go to the vacant apartment; Gadberry saw appellant drive by as she and Sanchez walked to the apartment complex.
Gadberry took Sanchez to a back room in the vacant apartment, where she helped him remove his pants. He was drunk. Gadberry left the room, saying she was going to get a condom and come back. Gadberry encountered appellant near the living room and said, "He's in the back." Appellant had the steak knife with him.
Appellant went to the back room and then Gadberry heard voices saying "Where's the money?" and "I don't have it." She ran back to the room and told appellant, "His pants are right there." She saw appellant pulling the knife out of Sanchez's chest; Sanchez was grasping his chest and saying, "I'm bleeding." Sanchez did not have a weapon. Gadberry grabbed Sanchez's pants with his wallet inside and ran out of the vacant apartment with appellant following her. Appellant returned to El Rodeo to pick up Richardson.
The next day, August 20, 2005, Sanchez's body, dressed in only underwear and socks, was found laying facedown at the bottom of stairs at the apartment complex. The police found more blood in a vacant apartment approximately 100 yards away from Sanchez; the vacant apartment had a broken window. The police were able to identify the body as Sanchez's by his fingerprints. The investigation led to Jiminez, who described the woman he saw leaving El Rodeo with Sanchez. A bouncer at El Rodeo told police he knew someone who matched the woman's description. He said the woman and a female friend were at the bar on occasion, and he had once driven one of them home. He showed the police the building where he dropped her off, which was in the same housing complex where Sanchez died.
A search warrant was obtained for the apartment where Gadberry and appellant lived, and it was served on August 21, 2005, at about 12:50 a.m. Among other persons, officers found Richardson in the apartment and found appellant in bed with Gadberry. Richardson, Gadberry, and appellant were transported to a location where they were interviewed separately. Richardson, who was interviewed first, became hysterical and began crying and ranting. She admitted she saw appellant watching Gadberry talk to a Hispanic male at El Rodeo, and Gadberry left the bar with the Hispanic male.
Gadberry was interviewed next. When shown a photo of Sanchez, Gadberry said she had a drink with him at El Rodeo. She broke down in tears when told Sanchez had been killed. Eventually, she admitted that she and appellant were involved in a plan to commit a robbery in a vacant apartment. Her confession, which was described to the jury by one of the interrogators, largely mirrored her trial testimony.
Appellant's interview began at 3:18 a.m. and ended at 4:00 a.m. He eventually admitted there was a plan to pick up a man and bring him to a place where he would be robbed. Appellant insisted he did not intend to kill Sanchez. The jury saw a videotape of portions of appellant's interview.
Based on information provided by Gadberry, the police found Sanchez's pants behind some bushes at the Walnut Creek BART*fn6 station. Appellant's and Gadberry's fingerprints were found on or around the broken window in the vacant apartment.
In December 2007, while appellant and Gadberry were in custody, Gadberry received a threatening letter from appellant that referred to her as a "snitch."
At trial, Dr. Ikechi Ogan, a forensic pathologist with the Forensic Medical Group in Fairfield, testified that the autopsy of Sanchez was performed by Dr. Brian Peterson. The Coroner's Division of the Contra Costa County Sheriff's Department has contracted with the Forensic Medical Group to perform autopsies. Peterson was the managing partner of the Forensic Medical Group before being hired by the Wisconsin Medical Examiner's Office. Ogan reviewed the coroner's report prepared by Peterson and the photos documenting the autopsy. Ogan testified he concurred with Peterson's opinion that the fatal injury was a single stab wound on the left side of the chest. The knife penetrated four inches, going clear through the third rib and puncturing the left lung and the heart. Ogan explained that the third rib is one of the heaviest ribs in the human body and opined it would take a great deal of force to cause a knife to pass entirely through the rib. Sanchez had no illegal drugs in his system and his blood alcohol level was .10 percent. Ogan opined that injuries to Sanchez's face, including bruises and a laceration above the left eyebrow, were inflicted while the victim was still alive. The coroner's report authored by Peterson was admitted into evidence.
An expert pediatric hematologist oncologist testified for the defense that appellant had sickle cell disease and suffered a stroke at the age of two and one-half years. She explained that stroke patients suffer brain damage and have significant intellectual deficits.
I. Admission of Appellant's Involuntary Confession Was Prejudicial Error
Appellant contends his "confession was inadmissible because it followed an incomplete Miranda[*fn7 ] warning and not even an implicit Miranda waiver, and it was involuntary because of the interrogating officers' false statements and inducements." We conclude the warning was adequate and appellant waived his rights, but appellant's confession was involuntary. Because admission of the confession was not harmless beyond a reasonable doubt, we must reverse the murder and robbery convictions.
"In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under Miranda, supra, 384 U.S. 436, we accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we ' "give great weight to the considered conclusions" of a lower court that has previously reviewed the same evidence.' [Citations.]" (People v. Wash (1993) 6 Cal.4th 215, 235-236 (Wash).) The "voluntariness of [a] defendant's waiver and confession must be established by a preponderance of the evidence. [Citation.]" (Id. at p. 236.)
A. The Miranda Warnings Were Adequate*fn8
Appellant first contends the Miranda warnings given by the police were inadequate because they failed to inform him he was entitled to counsel during questioning.
According to a transcript of the questioning at the outset of appellant's police interview, Detective Shawn Pate admonished appellant as follows: "Being an adult and being here with us, you know you do have the right to remain silent. Anything you say can and will be used against you in court. Do you understand that? [¶] . . . [¶] You know you have the right to an attorney. You have to have an attorney prior to any questioning if you desire. If you can't afford to hire one, one will be represent [sic] to you free of charge. Do you understand that?" Appellant briefly nodded his head in response to Pate's questions.
Wash is directly on point. There, the defendant was informed, "you have the right to have an attorney present before any questioning if you wish one, if you cannot--if you cannot afford . . . an attorney one will be provided to you at no cost before any questioning begins." (Wash, supra, 6 Cal.4th at p. 236.) Wash's reasoning is equally applicable here: "Miranda holds that a suspect must be apprised, inter alia, that he has the right to the presence of an attorney during questioning, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. [Citation.] Although the warning given to [the] defendant here deviated from the standard form in failing to expressly state that [the] defendant had the right to counsel both before and during questioning, we are not persuaded--as [the] defendant's argument implies--that the language was so ambiguous or confusing as to lead [the] defendant to believe that counsel would be provided before questioning, and then summarily removed once questioning began. [Citation.] As the high court has observed, the Miranda warnings are 'prophylactic' [citation] and need not be presented in any particular formulation or 'talismanic incantation.' [Citation.] The essential inquiry is simply whether the warnings reasonably ' "[c]onvey to [a suspect] his rights as required by Miranda." ' [Citation.] We are satisfied that the warnings given [the] defendant here 'reasonably conveyed' his right to have an attorney present during questioning." (Id. at pp. 236-237; see also People v. Valdivia (1986) 180 Cal.App.3d 657, 662-664.)
The United States Supreme Court recently considered a similar claim in Florida v. Powell (2010) 559 U.S. ___ [130 S.Ct. 1195] (Powell). There, the defendant was informed he had " 'the right to talk to a lawyer before answering any of [their] questions' " and " 'the right to use any of [his] rights at any time [he] want[ed] during th[e] interview.' " (Id. at pp. 1204-1205.) The high court concluded those warnings were adequate. (Id. at p. 1205.) Although the second statement made the warnings in Powell clearer than the warnings in the present case and in Wash, we do not read Powell as effectively overruling Wash. That is, we do not read Powell as requiring that suspects be told they have the right to use any of their rights at any time in order for warnings to be adequate.
In the present case, appellant was informed he had, without any limitation, the "right to an attorney" and, additionally, that he had the right to an attorney "prior to any questioning." Nothing in the detective's words indicated counsel's presence would be restricted after the questioning commenced. Under Wash, the warnings given to appellant reasonably conveyed to him he had the right to an attorney before and during any questioning.
Appellant also contends he was not properly advised an attorney would be provided if he could not afford one because the officer misspoke, stating "If you can't afford to hire one, one will be represent [sic] to you free of charge." In context, the warnings reasonably conveyed to appellant that an attorney would be provided to represent him.
B. The People Established That Appellant Waived His Miranda Rights*fn9
Appellant next contends the People failed to show that appellant knowingly and intelligently waived his Miranda rights.
"Even absent the accused's invocation of the right to remain silent, the accused's statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused 'in fact knowingly and voluntarily waived [Miranda] rights' " when making the statement. [Citation.] The waiver inquiry 'has two distinct dimensions': waiver must be 'voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception,' and 'made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.' [Citation.]" (Berghuis v. Thompkins (2010) 560 U.S. ___ [130 S.Ct. 2250, 2260] (Berghuis).) "[T]he question of waiver must be determined on 'the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.' [Citations.]" (North Carolina v. Butler (1979) 441 U.S. 369, 374-375.)
Appellant appears to focus on the second dimension of the waiver inquiry, whether he waived his rights with awareness of the nature of the rights and the consequences of waiver. Appellant contends there was no showing of a knowing and intelligent waiver because he responded to the detective's question as to whether he understood his rights only non-verbally, with "at best" a "slight" nod of his head. He also points to testimony presented to the trial court regarding his mental deficiencies. In particular, a pediatric oncologist hematologist testified appellant had sickle cell disease and suffered a stroke when he was under three years of age. The stroke caused permanent neurologic damage; appellant's cognitive impairment was mild to moderate. Moreover, patients with sickle cell disease often show a very poor sense of judgment. A clinical neuropsychologist testified that tests showed appellant had "significant" cognitive impairments; she expected appellant to be slower and have fewer skills. Appellant had an IQ score of 76, which could be considered in the mentally retarded range, although appellant did not appear to have mental retardation. Finally, appellant's mother testified appellant was slower than her other children; he attended school "to the 10th grade" and was in special education classes. On cross-examination, she admitted appellant probably had more than one attorney as a juvenile.
In concluding appellant waived his Miranda rights, the trial court reasoned as follows: "In this case the court is fortunate to have the videotaped statements which demonstrate both the demeanor and attitude of the witnesses and the environment in which the statements were made. [¶] Here after . . . Pate provided the warnings and asked [appellant] if he understood, the court viewed [appellant] nodding his head. The nodding of the head coupled with the fact that he proceeded to speak with the detectives and did not ask for an attorney persuades the court that he waived his Miranda rights. [¶] . . . [¶] As the videotape clearly shows, [appellant] was prepared to talk to the police. He displayed no emotional weakness. He was not under the influence of alcohol or drugs. He appeared to be streetwise. He did not appear intimidated by the officers or cowed by their presence. [¶] His initial statement that, quote, it wasn't me, unquote, showed that he was willing to speak to the officers. His behavior later in the interview complete with a physical demonstration of the way in which Erica walked back in the master bedroom, as ...