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People v. Molano

Supreme Court of California

June 27, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
CARL EDWARD MOLANO, Defendant and Appellant.

          Alameda County Superior Court H38118 Allan D. Hymer Judge.

          Wesley A. Van Winkle, under appointment by the Supreme Court, for Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Alice B. Lustre and Juliet B. Haley, Deputy Attorneys General, for Plaintiff and Respondent.

          OPINION

          CORRIGAN, J.

         Carl Edward Molano was convicted by jury of first degree murder, with the special circumstance that the murder was committed during a rape.[1] After he waived jury on prior conviction allegations for spousal abuse with great bodily injury and two rapes, the court found the allegations true. After the jury returned a verdict of death, the court imposed that sentence. This appeal is automatic. We affirm the judgment in full.

         I. BACKGROUND

         A. Guilt Phase

         On June 16, 1995, friends of Suzanne McKenna had been unable to reach her by phone and went to her cottage in Hayward. Judy Luque knocked on the front door but received no response. Peering through the blinds, she saw a heavy-set man with brown hair standing in McKenna's kitchen, wearing a blue Pendleton shirt. She yelled to her husband, Jeff, as the man left through another door. Jeff ran to the side of the cottage and saw a man walking quickly away, carrying something in his arms.

         Jeff shouted at him and the man began to run. Jeff gave chase but lost sight of him. Meanwhile, Judy entered the cottage. There was garbage all over the kitchen floor and a foul smell. The living room appeared to have been ransacked. Judy called for McKenna but heard nothing. She left and a neighbor called 911. Alameda County sheriff's deputies responded, searched unsuccessfully for the fleeing suspect, then entered the cottage. A trail of fecal matter led from the living room to the bathroom, where they found McKenna's corpse. There was a Reebok shoe print on the bathroom floor.

         McKenna's face was purple. A bra, panties, and a strip of leather were wrapped around her neck. Rigor mortis had set in. There was no sign of forced entry. Some fingerprints were recovered, but none were useful. The deputies found a tin of condoms, as well as an empty condom wrapper on the couch. Two tubes of personal lubricant were found nearby. Various items of McKenna's property, along with a pair of Reebok shoes, were discovered in the surrounding neighborhood.

         The pathologist testified that it would have taken “a couple of minutes” for McKenna to lose consciousness when she was strangled, and another one or two minutes before she died. The greatest pressure had been applied to the front of her neck. One breast bore abrasions that could have come from a blow or a bite. There were contusions on her face, which could have been inflicted by a fist or open hand. Abrasions on her back and buttocks were consistent with having been dragged across the floor. The vagina and anus showed no signs of trauma.[2] Sperm was detected on a vaginal swab. A toxicology screen showed a blood alcohol level of.15 percent, with 40 micrograms per liter of methamphetamine. The latter level was considerable, and reflected illicit rather than prescribed usage.

         Biological samples were preserved. Strands of hair were found wrapped around the strip of leather used as the ligature. In 1995, the crime lab was not able to do DNA testing. When no leads developed, the investigation was put on hold.

         In May 2001, defendant's wife Brenda brought their 13-year-old son Robert to the sheriff's station.[3] Robert had recently told his mother about an encounter with defendant in 1995, when they lived near McKenna, and he wanted to tell the police about it. While he and some friends were playing outside, he had seen defendant jogging from the area of the cottages behind their apartment complex. He knew defendant socialized with residents at the cottages. About 20 minutes later, Robert and his friends heard a commotion at the crime scene and decided to go see what was happening. When he went to a storage unit to get his bicycle, he found defendant inside, sweating and holding a barbecue fork. Defendant said he would kill Robert if he told anyone where he was. Frightened, Robert returned to his friends.

         Brenda also gave a statement to the police. At 7:00 a.m. on the day of the investigation, she had been getting ready for work. Defendant came into the apartment, without his shoes and appearing nervous. He said that he had been partying with a couple in one of the cottages, when the man got into an argument with the woman and choked her to death. Brenda told defendant to go to the police, but he replied that the man had threatened to kill his family if he did so. Defendant left the apartment, wearing a blue Pendleton shirt. Brenda was upset and called in sick. That afternoon, a sheriff's deputy came to the door and told her a suspect had been seen in a neighboring apartment where someone was killed. Defendant returned about three hours later, and said he had gone back to the cottage to wipe away his fingerprints. The dead woman's brother had come in and seen him. He ran because he was anxious about being seen. He changed his clothes, cut his hair, and shaved off his mustache. He and Brenda drove to the San Leandro Marina, where defendant threw the Pendleton shirt in the water. Brenda did not then suspect he was the killer.

         The investigation was reopened after Brenda and Robert came forward. Judy Luque identified defendant in a photographic lineup as the man she had seen. One of the Reebok shoes found near the cottage tested positive for Brenda's DNA. Defendant's DNA was detected on the leather ligature. The analyst was unable to recover a DNA profile from the sperm sample.

         Defendant gave a series of statements to investigating sheriff's deputies and the district attorney, as set out more fully below. He admitted having consensual sex with McKenna and claimed McKenna had asked him to choke her during the encounter. He tied her panties and bra around her neck but did not intend to kill her. Realizing she was dead, he panicked, dragged her body into the bathroom, and tried to clean up. He returned to McKenna's cottage the next day to make sure he hadn't left anything inside.

         The prosecution introduced evidence of defendant's violence against other women. In 1982, he sexually and physically assaulted 19-year-old Anne H. Defendant visited Anne when her husband was out of town. He was friendly at first, but when Anne resisted his sexual advances, he forced himself on her, choking and threatening to kill her. He raped and sodomized her, then forced her to orally copulate him. He threatened to kill her unless she agreed he could visit again. Anne reported the assault and defendant ultimately pleaded guilty to one count of rape.

         In 1987, defendant sexually assaulted 60-year-old Mabel L., whom he had known since his childhood. Late one night he appeared at her door and asked to use the bathroom. Inside, he knocked Mabel to the ground and raped her. When he drew a knife, Mabel pleaded for her life and promised not to report the attack. Defendant stabbed her in the back, knocked her down, and choked her. Mabel was able to get free and defendant fled. Mabel reported the assault. Defendant pleaded guilty to forcible rape and use of a knife.

         In 1996, defendant physically assaulted his wife, Brenda, choking her to unconsciousness. She awoke to find her wrists and hands tied and a pillowcase shoved in her mouth. Defendant returned and again choked her. When she awoke a second time she was no longer bound and defendant was gone. It took six months for her voice to return to normal. Defendant subsequently pleaded guilty to corporal injury on a spouse, admitting to a probation officer: “ I choked my wife. I was under the influence of crack and I got paranoid. I thought she was going to call the police.”

         Defendant presented no evidence in his defense at the guilt phase.

         B. Penalty Phase

         1. Prosecution Evidence

         McKenna's brother, Ronald testified he and his children had been close to the victim. Her death devastated the entire family. McKenna had been very supportive of her sister, Patti Dutiot, who struggled with alcoholism and psychological problems. Dutiot was a recluse and McKenna was her lifeline to the outside world. Dutoit died in 1996. Ronald commented that he “lost two sisters because of this clown, ” referring to defendant. McKenna was estranged from her sister Lori, but had a close relationship with her 10-year-old nephew, Michael. After McKenna's death, Lori had a “breakdown” over the estrangement. It was very painful for her to explain McKenna's death to Michael.

         2. Defense Evidence

         Defendant's single mother raised him and his siblings. His half-brother, Ernest Molano, testified that their mother spanked them with her hand, a belt, or anything else she could grab. He felt that their mother loved them and only punished them when they deserved it. They always had food, clothing, and a roof over their heads.

         Defendant's former girlfriend, Bonnie Alexis, testified he was good with young children, including his own niece and Bonnie's son. Defendant supported Bonnie and helped her during difficult times. Another friend, Evelyn Horne, said defendant was kind and had helped her leave an abusive relationship. Other family members and friends likewise described defendant as a good person and role model who was close to his family and helpful to others.

         Several correctional officers testified about defendant's behavior in prison. They reported that defendant had a good attitude and work ethic and got along well with other inmates.

         Psychologist Rahn Minagawa compiled defendant's social and family history. Defendant's mother had seven children by different men, and his father's identity is unknown. The mother was verbally and physically abusive. She whipped him, said she hated him, and wanted to give him up for adoption. He began drinking when he was 12 years old, and began using cocaine in high school.

         Neuropsychologist Myla Young assessed defendant's IQ to be 85. His previous test scores were 109 in 1982 and 94 in 1988. He has significantly impaired attention and mild impairment of verbal memory. His cognitive flexibility and executive functioning are impaired, undermining his ability to conceptualize and plan. Neuropsychological testing and brain tomography suggested damage to his hippocampus and frontal lobe. Test results showed no evidence of malingering. Young opined defendant would function well in a structured environment.

         Frank Agee, a chaplain at the Santa Rita Jail, met with defendant weekly for several months before his trial. He described defendant as a born-again Christian who had experienced genuine spiritual growth.

         Retired correctional officer Daniel Vasquez testified that people sentenced to life without the possibility of parole do not receive conduct credits and are not allowed outside the prison walls.

         II. DISCUSSION

         A. Guilt Phase Issues

         1. Admissibility of Defendant's Statements

         Defendant argued his statements to officers and the district attorney were taken in violation of his rights to remain silent and be assisted by counsel. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); Edwards v. Arizona (1981) 451 U.S. 477 (Edwards).) On appeal, he challenges the court's denial of his suppression motion. When reviewing a Miranda ruling, “we accept the trial court's determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda.” (People v. Davis (2009) 46 Cal.4th 539, 586; see People v. Bradford (1997) 15 Cal.4th 1229, 1311 (Bradford).)

         Defendant gave three taped statements to law enforcement officers. The first was made at San Quentin State Prison. The second occurred in a patrol car while defendant was driven from prison to the sheriff's substation. The third was made the same day at the station. An audiotape of the prison interview and a videotape of the station interview were played for the jury. The conversation in the patrol car was not offered in evidence.

         Defendant claims he was deceived into waiving his Miranda rights at the outset of the San Quentin interview. He urges he did not reinitiate communication with the officers after invoking his Miranda rights, rendering subsequent statements inadmissible. He argues he invoked his right to counsel a second time during the drive to the station. He also contends his apparent waivers of Miranda rights at the station were involuntary because the officers disregarded his invocations and attempted to soften him up during the transport. We hold to the contrary.

         a. Background

         i. The San Quentin Interview

         On March 21, 2003, six years after the murder, Sergeant Scott Dudek and Detective Edward Chicoine went to San Quentin to interview defendant. They knew he was scheduled to be released from prison in about two weeks. His criminal record reflected two prior rape convictions as well as the spousal assault for which he was then incarcerated. Chicoine testified that he and Dudek concocted a “ruse, ” planning to present themselves as “290 investigators” looking into defendant's past sexual offenses before he returned to the community. (See § 290 et seq. [Sex Offender Registration Act].) Although Chicoine was in fact responsible for monitoring released sex offenders, he was also a homicide investigator and his true goal was to talk about the McKenna case.

         The interview was tape recorded, though there was some preliminary conversation before the recording began. Chicoine and Dudek identified themselves as deputies with the Alameda County Sheriff's Department. At the beginning of the tape, Chicoine said: “Ok. Carl, like I've explained to you before we want to talk to you about some of your past crimes and some of the sex registration laws and things like that. Before we do that, I had mentioned to you before that we're going to read you your rights....” Chicoine then recited the Miranda rights. Defendant said he understood them, was willing to talk, and signed a written waiver. As he was filling out the form, he asked if his parole would be affected “[i]f I don't answer any of these questions.” Chicoine replied, “No, absolutely not.”

         When defendant asked if “[y]ou do that for everybody now? All the sex registrants?” Dudek replied it was “our normal procedure.” Chicoine explained: “I list every single sex registrant that comes across my desk, I look at.” “Every single one and I'm constantly on the phone and I have two files full.” Chicoine said, “And here's, here's one of the things that I do just so you know, is that, you know, especially when you're out there your whole goal in life is you want to stay in my file. I mean you're going to be there for life anyhow.” Defendant echoed that he would be “there for life anyway.” Chicoine said, “Right. But you want to stay [i]n the filing cabinet.” Defendant said “Yeah.” Chicoine continued, “If you're causing a problem or if I'm getting called or whatever else, then it gets put in a red file and it sits on my desk and I have about 4 or 5 of them on my desk at any time. And those are the guys that I'm looking for. Those are the guys I'm going after. So, the goal... objective is to stay in the file and stay off my desk. Correct?”[4] Defendant's response is not audible, but Chicoine followed up with “All right.”

         For about an hour, they discussed defendant's job prospects, family background, substance abuse issues, and prior offenses. After reviewing the assault on Brenda, Chicoine told defendant “we want to look at other things to see if, you know, maybe you have an involvement in, in other situations that were out in that area.” He asked if defendant remembered “an incident where there was a girl that died?” Defendant said, “My neighbor next door.” He did not remember her name, but said he had “a drink at the manager's house with her and we got high at the manager's house together.” Dudek showed defendant a picture of McKenna, and defendant recognized her as “my neighbor.” Chicoine gave her name “Susan McKenna, ” and defendant acknowledged “we called her Sue.” He said at the time of the murder his parole officer had asked him if he knew anything, and he told her “no.”

         They talked about defendant's use of drugs with McKenna and asked if he had a sexual relationship with her. Defendant admitted that he did, saying it was a “hit and run, ” a single occasion a day or two before her death. He was surprised no one had come to see him after she died, “because I know what my record looks like.” He said they had had “[r]egular missionary style sex, ” and answered “No” when asked if it was “rough sex.” He said “it was just spontaneous sex.” He denied biting her.

         Chicoine asked if anyone had suspected him of the murder. Defendant said, “Yes, ” even his wife “thought so.” When Dudek inquired what he had told his wife, defendant became reticent, and said he needed to go to the bathroom. He admitted, “I told Brenda I know what happened, ” then again asked to use the restroom. Pressed by Chicoine for “the gist of what you told Brenda, ” defendant said “It was so long ago, I cannot remember. I'm not going to bullshit you.” The tape recorder was turned off and defendant went to the restroom. When he returned, he invoked his Miranda rights. The officers turned the recorder back on, and said defendant wanted “to tell us something specifically.” Defendant said, “No disrespect to both of you gentlemen. I understand where this is leading to, this conversation and I would rather not say anything else until I have a public defender of mine.”

         The officers stopped the interrogation and said they had a search warrant for blood and buccal swabs, dental casts, and his shoes. They said if he wanted to talk to them again, “You have to initiate the contact.” Defendant said he understood and asked if they had a card. They each gave him one, and repeated that he needed to initiate contact, telling him to “get ahold of the guards here” and say “I want to talk.” Defendant responded, “[or] my counselor [or my captain or something].” The tape recording ended. Chicoine testified that defendant said he wanted to tell them what happened, but would like to talk to a counselor first, which Chicoine understood to mean a religious counselor. Defendant said he would call them after he had that opportunity.

         Chicoine conceded that defendant's final statements about wanting to talk after consulting a counselor were not on the tape, or in his police report, written five days later. A supplemental report from April 3, however, includes the following summary: “Molano had previously invoked his right to an attorney during an interview... on 3/21/03. At that time, Molano told us that he intended to call us and tell us everything about his involvement with Suzanne McKenna's murder, but said he wanted to have a counseling session with his psychologist first. Dudek explained to Molano that we would not be able to contact him, and that if he wanted to tell us anything regarding the crime, he would have to contact us.”

         The officers finished collecting samples from defendant, and informed prison staff of his status as a suspect. Chicoine said it was understood that he would be placed in a “more secure situation, because of the possibility of [a] criminal complaint coming down in the future.”

         ii. The Conversation in the Car

         A complaint was filed on March 27, 2003, charging defendant with murder. An arrest warrant issued, and on March 31, Dudek and Chicoine drove to San Quentin to take defendant into custody. They told him he was under arrest for the murder. Chicoine testified that when the officers first encountered defendant in a receiving area at the prison, he told them “that he had been meaning to call us, that he had already talked to a counselor and that he intended to call us.” There had been no contact with defendant since the last interview, but he said “[h]e knew we'd be coming back.” Chicoine understood defendant's statements as a reinitiation of the discussion at the end of the March 21 interview, when he had said “he did want to talk to us, he wanted to explain what was going on.”

         The court asked if that was only what Chicoine thought defendant meant, or if defendant expressly said he wanted to talk to them. Chicoine answered, “It sounded to me that that's exactly what he meant.” The court commented, “But he didn't overtly say ‘I want to talk to you now.' ” Chicoine said, “Yes, he did. He said he wanted to talk to us. He had already talk[ed] to his counselor and that he meant to call us.” Chicoine told defendant “to wait” and that “we would get an opportunity to talk to him later.” On cross-examination, Chicoine said he could not remember defendant's exact words, “but I know that it was very close to - he said that he wanted to - that he meant or intended to call us, and that he had just wanted to get this over with.” The court asked whether defendant made this statement before or after being told he was under arrest. Chicoine could not remember the sequence of the exchange.[5]

         Dudek drove from San Quentin to the station. Chicoine sat behind him and defendant was in the right rear seat. When they got into the car, Dudek turned on a tape recorder placed on the front passenger seat. At the outset of the ensuing conversation, Dudek asked defendant if he had “any questions or anything.” Defendant said he was “in limbo.” Dudek replied, “You're in limbo?” “Is that, is that a good thing or a bad thing being in limbo?” Defendant said he didn't know. Dudek asked him, “Know what's going on or no?” Defendant replied, “[No, ] run it down.” Chicoine told defendant he would be arraigned, “hopefully on Wednesday.” After a pause, defendant asked, “What's it look like I'm facing?” Dudek said “obviously we can't tell one way or the other, but, I don't know. You understand the charge, right?” Defendant gave an affirmative response, and silence ensued.

         Dudek resumed the conversation, saying “I've seen better, I've seen worse. That's a pretty chicken shit answer but....” “And obviously we'd like to have an explanation, but we're not in that position because of what you said the other day, but if you'd like to give an explanation then we're gonna give you another opportunity once we get to our station. That's kind of where we're at right now. And obviously, you know, we're a little bit more at liberty to tell you some things that we didn't tell you the other day that we can tell you now. That'll come out if you want it to, but [you kind of hold the, ] you're kind of in control here right now to say yeah, go ahead and tell me or I don't give a shit, I'll find out sooner or later, so....”

         Defendant said, “Tell me.” Dudek replied, “Alright. Does that mean you want to talk to us again or does that mean you just wanna, let me explain what's gonna go on now and then maybe [you'll answer] our questions. You're gonna go back, we're gonna put you in an interview room, we're gonna read you your rights again, we're gonna go over the fact that we were out to talk to you a week ago, ten days ago actually it is now, and at that point you talked to us a little bit and you said hey, at this point here you want to talk to your counselor, you wanted to talk to whoever, and, and, we'll go over that again... if at that point you say I wanna know a little bit more, I wanna talk to you about it a little bit more then we'll go from there, and that's where we're at, OK?” Defendant said, “[All right].”

         Dudek continued, “So, even if it's one sided and you say hey, I want to talk to you and you don't say nothing, you gotta tell us I want to have the conversation be more of a two-sided conversation. Cause I think that's only fair to us and you've been in the system, you know what I mean? I'm not here to clown you, like I told you the other day, you know. And it's only right that you say yeah, let's go ahead and I want to hear what's up, and then once you give us that, and if you decide at one point again, you know what, I'm hurting enough, and, and then we stop again, so. I think truthfully, and you know this too, and you even said it, that, you know, you, I think you did want to go on with a little bit more, and I think there's probably stuff that you do want to share with us that we may not know about, but... [¶]... Now ultimately... [¶]... You know, and the bottom line is too, is, is, is ultimately there's always a story behind everything, and unfortunately when it comes down to the charging part of it, we're, we're, this is kind of a one shot deal here. You get your [opportunity to] say this is where we're at, or let's see how it shakes out, and then that's [a decision you, ] Carl Molano the, the, the, the 46, 47 year old [dude's gotta make]. I, I can't, Scott or Ed can't do that for you. You have to do it on your own, you know what I mean?”

         At this point Chicoine interjected, “Right now, there's a story [that's being told, but it doesn't have your side].” Dudek resumed, “I'll be more than happy, and so would Ed, we'd [be] more than happy to share exactly, you know, how the story even started. Why are we at this point after so many years, and, and, and, you know, a lot of that has to do with, with your family and, and, and, and it's only fair that you know that cause you are gonna know and my credibility and Ed's credibility with you is gonna mean everything as far as this goes. If you think I'm a big bullshitter, horse's ass, and you think he is, there's no sense of us even going any further, you know what I mean? And you're gonna find that what we tell you is ultimately, you know, we're not bullshitting you, so.”

         Defendant said, “No, you guys been straight up.” Dudek replied, “I mean we're, we're trying to be that way cause this is what we do. You, you got to do what you got to do, we got to do want we got to do, you know what I mean, and, and I was up front with you when I said the other day, I said I, I mean, I know Suzy's not an angel, or wasn't an angel, you know what I mean, and, and there could be some other factors, but that, that's....” At this point Dudek evidently took a wrong turn, which interrupted the conversation briefly. He resumed with, “like Ed said, there's two sides to every story, you know what I mean? I mean, you can tell by where we were going that we obviously talked to a bunch of people and somebody, you know, and, and, quite frankly, you know, we talked to your ex old lady who told us some stuff and we talked to some other people, so that's kind of, that's kind of where we're at.”

         Defendant said, “I ought to be arraigned Wednesday [and assigned a] (unintelligible).” Dudek told him, “[Nuh.] You'll probably just be arraigned, they'll ask you your financial status, more than likely you'll be assigned a PD your next court appearance, but you could get one right off the get go on something like this, I'm, I'm, probably you will actually.” Defendant said, “Can I ask you a question?” Dudek answered, “Sure.” Defendant said, “They assign me a PD, right?” Dudek said, “Right.” Defendant said, “I can sit down and talk to my PD first, then talk with you all?” Dudek replied, “Yeah.” Defendant said, “Can I do that?” Dudek told him, “Yeah. I mean, that's one of your options and that's why we're here, you know.” Defendant said, “That's, I would, I would (unintelligible).”

         Dudek responded, “Ok. If you're [gonna go through] that formally when we get to the tape, we're gonna say Carl Molano, you understand you're being charged with this, and then, ... and then we're gonna go through the rights thing again. It's at that time, you know, you can say hey, let me talk to my PD and I'll talk to you again, but, you know, that's entirely up to you. We're here only to do shit on the up-and-up. If we don't do it on the up-and-up then we might as well just throw it away right now, you know what I mean?”

         After a pause, Dudek said, “I know I read some of your letters and I know you know I read them, when you were, you were out there the other day with your other daughter, your daughter there, the 4.0 whiz kid there, you know. I, I can't think of, Regina, is that her name?” Defendant said, “Jasmine.” Dudek said, “It sounds like you're starting to, you know, at least head in the right direction there with a relationship with her. Irregardless whether you talk to us or not, when we get to our station I think it's only fair that you know that, is it Robert? Robert's your 17 year old son? Robert played a fairly key role in this as far as where we're at right now, and I just don't want it to be a, a, a mind blower from you when it comes out, ok? So, that's kind of, you know, you've got one relationship by your own admittance you're trying to get back together when you were talking to us the other day, and, and really said you hadn't talked to Robert or your other, was it son, from, from your that wife?” Defendant said, “Yeah.” Dudek continued, “But I think what I'm asking you probably, from my standpoint [as a dad and stuff, ] that you've got to rebuild and don't take it out on your kids. They, they had to do what they had to do, so, you know what I mean?”

         Dudek continued, “Ok. So, unfortunately, Robert's had a lot of problems over the years because of, you know, the stuff and, and Robert felt he had to do what he had to do, and you'll probably never have a relationship with Robert, but in the scheme of things hopefully you'll, you'll view it as Robert's becoming a man, that type of thing, you know what I mean? And I think the reason I'm telling you this is because when I first talked to your ex-wife, the first thing was well, of course she's coming forward because she can't stand your guts because, you know what I mean?” Defendant said, “Yeah I know.” Dudek said, “So that's something that, that the whole thing weighed on, so.”

         After an extended pause, Dudek asked about the temperature in the back seat, then opened a new topic: “Other thing too is, and then this is just kind of [weird], obviously this, this murder occurred in 1995. It's gonna be fairly a, a big deal in the newspapers and probably even the media and stuff because it's, you know, it's an eight year old homicide, so I'm just kind of preparing you for that. I don't know, I mean I know your mom's not around anymore, but if you think there's somebody you may want to prepare for it, you may want to let us know that so we can tell them before they hear it on the 7 o'clock news [tonight], i.e. your, your daughter, or whoever else, know what I mean?”

         After a long pause, there was some talk about the art work defendant had done, and his life in prison. After another extended pause, Dudek asked if defendant had told anyone about their previous visit. Defendant said inmates had seen them, but Dudek said, “I meant family or something, not inmates.” Defendant asked, “I can give you two numbers to call?” Dudek said, “I can let you call two numbers, how's that? I don't really like to tell people what's up. I'd rather have them hear it from you, or, you know, I mean if you don't want to do that I understand, but it's up to you. That's a decision you can make from now until the 150th exit, right?” This was a reference to the freeway exit for the station. Defendant said, “Yeah.” After some further conversation about defendant's other son who was serving a prison term in New York, there was a long pause broken by defendant saying, “Hey.” Dudek replied “[Heyo], ” and defendant said, “[I have a question, ] if I want to get this over with as soon as possible, right?” Dudek said, “Uh-huh.” Defendant asked, “Who [do I talk] to? [PD? DA?]”

         Dudek said, “Yeah, you mean you just wanna plead and get, get on with your time?” Defendant said, “Yeah.” He wanted to be “sentenced, you know, or whatever.” Dudek said, “We can, we can let the DA know that that's your, your wish[es]... I mean, they're, they're gonna go on the guidance of your PD anyway....” Defendant said, “Yeah, ” and commented, “PD doesn't (unintelligible).” After some discussion about waiving time, Dudek told defendant, “It's going to be up to you.” He explained, a defense attorney would be “[t]here to advise you, but you, you're still in the driver's seat, you know, it's your defense. I mean, he's there to advise you, but if you say hey, you know, you're still a young guy, let's just get on with this so I can...” Defendant said, “I'm the only one that [holds it]. I actually, you know, it's like [at the house? I have the keys to all the doors].” Dudek said, “Exactly.”

         After a pause Dudek said, “When we get here it's a lot easier, let, let us do what we gotta do and then we can talk to you and you can talk to us [and]. I mean, I understand what you said before, but let's just, just get in here and do what we gotta do.” After another pause he asked defendant, “You consider yourself institutionalized? By that (unintelligible) talk to a whole bunch of people and some dudes are just kind of reserved to the fact that that's the way it's always gonna be, and sometimes...” “It's easier and just do time, or do you consider yourself, I want to get over with this so I can try to make at least, have ten good years or whatever.” Defendant's response is unintelligible. Dudek concluded the conversation with an exhortation:

         “It's kind of unfortunate for you because... it seems like you were at least heading in the right direction as far as with the religion, and the making amends with your kids, and stuff like that. What you can't do Carl though, is, is, is, it's, it's your heart and it's your soul, don't, don't give up on yourself, alright? It's, you know, believe it or not your, your, your daughter obviously is pissed off at you for not having a relationship [but at least] she's kind of proud of herself [and] proud of [making amends], [and] you can still do some good, you know what I'm saying, and, and you, you can't give up on yourself. Once you give up on yourself then, you know, the healing process has to start with you first, you know.” Defendant said, “Yeah.”

         Dudek continued: “It does, so I'm not gonna jump into this Bible thumping thing or anything like that, but I'm just telling you don't give up on yourself, alright? Cause then you don't do anybody any good. Believe it or not, what families want more is, like Ed said, they want to know the why and they want to hear something from your mouth and people, even people that are victims of something terrible, they get over it too, you know what I mean? So, they mainly look at you and, you know that from your previous crimes too though, you know. Just like that lady that you see walking around.[6] You know, that was one of your more powerful moments, was meeting up with her on the streets. [So, people] get over it. People realize that, you know. I told you before that before I did this I was in, you know, I, I did dope, I was a dope sergeant, you know what I mean, and believe me I know when, when crack cocaine and, and crank, and everything else does to people. People, it's the wors[t] thing that they ever had because you take people that have been clean and you could sit there and you could, and trust them and, and you'd, you'd want to have them come around and, and then I see these [fuckin'], more so the girls (unintelligible) and stuff spun out on the [crank] and shit. It's like damn, it's like how can anybody get to that point, but you understand [how they can, ‘cause, ] especially with the crack man, it's just so powerful and stuff you know. I mean, you gotta realize people are going to do you in one fashion, but only you know what, what Carl's all about inside, inside your heart. That pretty much ends my sermon here so that's where I'm coming from.”

         There was a considerable period without conversation before they arrived at the station.

         iii. The Statements at the Station

         Chicoine testified that at the station, defendant stopped by the rear of the car and said, “ ‘I have a question.' ” Chicoine said, “ ‘What?' ” and defendant told him that he “wanted to get this over with... that he had been speaking with inmates in the prison and they told him not to talk to the police. He said he knows that the public defender would tell him not to talk to the police, but he told me that he had to walk in his shoes, that they don't have to walk in his shoes. He just wants to get closure from this, and he just wants to tell the story, and get it over with.” Chicoine told him to wait until they got into ...


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