People v. Parker

Opinion

In this appeal from a conviction of first degree murder, appellant contends that: (1) a confession received in evidence was obtained in violation of his right to remain silent and his right to counsel; (2) evidence introduced at trial was the product of an illegal search and seizure; (3) the court committed reversible error by failing to order a present sanity hearing; and (4) appellant was not represented by competent trial counsel. We conclude that the confession was obtained in violation of the rules of Miranda as amplified in People v. Fioritto, 68 Cal.2d 714 , 719 [ 68 Cal.Rptr. 817 , 441 P.2d 625 ], Therefore, the judgment of conviction is reversed.

Facts

Eyewitness testimony, circumstantial evidence, an admission of appel

Appellant purchased an I.D. card and birth certificate from one John Joseph Walsh and assumed that identity. He then secured employment from Lynch Security which placed him at the Bank of California. Appellant planned a robbery of the bank and secured the help of three other individuals to carry out the plan. The scheme envisioned that the four conspirators would meet two Brinks trucks that were to deliver money at the bank at 6:30 p.m. on November 11, 1972. The conspirators would incapacitate the two guards, Thomas and Caillouet, who were scheduled to be on duty at the time, and take the funds.

Pursuant to the plan, appellant did not report for work on the 11th. At about 6:25 p.m. on that day, he entered the bank and asked Caillouet where Thomas was working. He was told that Thomas was on the second floor. Appellant went to the second floor locker room. He attempted to bind Thomas’ hands with thumb cuffs. A struggle ensued and Thomas was shot and killed by appellant. Appellant fled and was arrested in Denver, Colorado, on November 26, 1972.

At trial, appellant moved to suppress a confession made by him and evidence that was seized pursuant to a warrantless search. The motions having been denied, appellant, after appropriate waivers, submitted the issue of his guilt upon the transcript of the preliminary hearing and testimony taken during both motions to suppress. He was found guilty of burglary, attempted robbery, and first degree murder. A new trial was granted appellant on the counts of burglary and attempted robbery. Those charges were then dismissed. This appeal relates to the remaining judgment of guilt of first degree murder-

Confession

Appellant first contends that the confession received in evidence over his objection was obtained in violation of his Fourth and Fifth Amendment rights.

Appellant was apprehended by Denver, Colorado, police on November 26, 1972. At about 6:30 p.m. on that date, the Denver police sought to question him concerning the crime. Reading from a printed form, the Denver police advised appellant of his Miranda right. Rather than consenting to a waiver of the right, appellant wrote on the form space designated for signature of the “Person Advised,” “You are in as much

Appellant argues that he having once asserted his right to counsel and to remain silent as enunciated in Miranda v. Arizona, 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ], and expanded in People v. Fioritto, 68 Cal.2d 714 , 718-719 [ 68 Cal.Rptr. 817 , 441 P.2d 625 ], subsequent questioning by the police which resulted in his confession was constitutionally impermissible. The contention has merit.

In Fioritto, our Supreme Court, quoting from Miranda but adding its own emphasis, stated: “ ‘Once [Miranda] warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.’ ” (68 Cal.2d at p. 718.)

In People v. Randall, 1 Cal.3d 948 [ 83 Cal.Rptr. 658 , 464 P.2d 114 ], the California Supreme Court discussed application of the Fioritto rule to

The burden is upon the prosecution to establish that a confession obtained after Miranda rights have been asserted by the suspect is the result of a change of mind prompted by advice of counsel, his own psychological makeup, or similar facts. (Jefferson, Cal. Evidence Benchbook, §§ 23.2; 25.2, subds. (c), (d).)

Here the record establishes that appellant asserted his Miranda right and establishes also that the prosecution failed in its burden of proof of preliminary facts requisite to the admissibility of a confession obtained after that assertion. Miranda rights are deemed asserted where “conduct reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time.” (People v. Randall, supra, 1 Cal.3d 948 , 956, italics in opinion.) Appellant’s response to the original Miranda warning by the Denver police and his subsequent request to see a doctor or psychiatrist prior to responding to the reinstituted questioning by the Los Angeles officers are both conduct inconsistent with a present willingness to discuss the case freely at the time of the questioning. The record is silent on the reason why, after consulting the prison psychologist, appellant elected to submit to further interrogation. While the psychologist testified that he did not advise appellant to confess, he also noted that appellant was under “pressure and stress” and could not decide whether to make a confession “to the detectives.” It cannot be

Other Contentions

Appellant’s contentions of error in the trial court’s failure sua sponte to order a hearing on present sanity and of ineffective representation by trial counsel are totally without support in the record. There is no evidence that appellant lacked capacity to stand trial and his representation by Deputy Public Defender Wisot was masterful in the preservation of the record upon which we reverse the judgment.

Disposition

The judgment is reversed.

Wood, P. J., and Lillie, J., concurred.

A petition for a rehearing was denied February 28, 1975, and respondent’s petition for a hearing by the Supreme Court was denied March 26, 1975.