People v. Nwuzi CA1/4 ( 2022 )

Filed 2/1/22 P. v. Nwuzi CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A159805
v.
CHINEDU NWUZI, (Contra Costa County
Super. Ct. No. 5-191645-1)
Defendant and
Appellant.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and
Edwards v. Arizona (1981) 451 U.S. 477 (Edwards) require police
to cease custodial interrogation after a suspect unambiguously
invokes his or her right to counsel. In this appeal, defendant
argues the trial court erroneously admitted statements that the
police obtained in violation of Miranda and Edwards. We agree
that the trial court erred in admitting these statements, and we
find that the error was not harmless (Chapman v. California
(1967) 386 U.S. 18, 24 (Chapman)). Accordingly, we reverse.
BACKGROUND
On the morning of March 27, 2019, between 10:45 a.m. and
10:49 a.m., two people called 911 to report an incident involving a
man and a woman fighting. One caller was in her apartment
when she heard a commotion and went out to her balcony. She
1
saw a man in a dark sweatshirt and sweatpants get out of a gold
sedan, walk around to the passenger side, return to the driver’s
seat, and drive away. She estimated the man was approximately
six feet tall. She testified at trial that she heard a woman
screaming, but she conceded that when she called 911, she said
the passenger was screaming at the top of “his or her” lungs. She
could not tell the race or ethnicity of the driver or the passenger.
The man drove away recklessly toward the nearby Walgreens.
The second 911 caller, Samantha Watt, saw a man driving
erratically in the parking lot of Walgreens. A woman was
hanging out of the partially-opened car door, screaming as the
driver pulled her long, brown hair. Watt did not get a good look
at the driver or describe him, the passenger, or the car during her
911 call.
At approximately 10:45 a.m. that day, Officer Chris Bruce
was on patrol in the Windemere area of San Ramon when he
received a dispatch notice to look for a gold-colored, four-door
sedan driving recklessly. The dispatch notice described a male
wearing dark clothing and a female in the car, but did not advise
who was driving. Bruce drove northbound on a four-lane divided
highway in the Windemere area and saw a gold-colored, four-door
sedan heading southbound with a Black male driver in dark
clothing and a female passenger. The two appeared to be
arguing. Bruce made a U-turn at the next intersection and
followed the sedan. He informed dispatch that he believed he
had spotted the vehicle they were looking for heading towards
Dublin and gave the car’s license plate number.
2
Bruce initiated a traffic stop. The car pulled over, and
Bruce gave dispatch his location. Bruce testified that the female
passenger’s hair was disheveled and she and the male were still
arguing. The male driver appeared to be Black, wore a black
jacket, and had dreadlocks. While Bruce waited for another
officer to arrive, the sedan sped away. Bruce followed. When the
car did not pull over, Bruce turned on his sirens. In his pursuit,
Bruce observed the car speed at as much as 100 miles per hour,
make unsafe lane changes, and turn into oncoming traffic. Bruce
ended the chase for safety reasons, and the car headed south
towards Interstate 580.
At approximately 11:00 a.m., a man and a woman came
into a Dublin dog grooming store, Paws About Town, through the
back door. The woman was screaming that they had been in a
car crash and needed to use the phone. Approximately five
minutes prior, Diego Plata, an employee who was working that
day, heard “a big bang” from behind the shop that he thought was
a car accident. Plata testified that the man who entered the shop
was Black, about six feet one or two inches tall, and in dark
clothing. He had dreadlocks and an odd scar on his forehead.
Plata testified that the woman had lighter skin and that she was
maybe Latina or mixed race. She was larger than the man and
about the same height, and she had her hair up. She was
wearing a dirty white shirt and tight pants, and she was carrying
a jacket. Both acted distressed. Another employee, Lindsay
Decker, allowed the woman to use the store phone. After the
woman used the phone, the pair left and headed towards the
3
West Dublin BART station. Decker went out the back door of the
store, which backs up to Interstate 680, and saw a light-colored
sedan motionless on the freeway. California Highway Patrol ( CHP)
located the gold-colored sedan abandoned on the freeway, and
Bruce went and identified the car as the one he had pursued.
Officer Kevan Lopez was on patrol when he received a
dispatch to go to Dublin for a vehicle pursuit that had ended in a
crash on the freeway with suspects seen running in the area.
Lopez went to the West Dublin BART station to look for the
suspects. There, he saw a Black man about six feet tall, around
225 to 275 pounds, wearing dark clothing and a backpack, who
appeared to match the description of the man police were looking
for. Lopez contacted the man with another officer. The man,
later identified as defendant, was cooperative. In searching him,
the officers removed a wallet and, Lopez believed, a cell phone.
Police later located the female suspect not far from the BART
station. She was upset, irate, crying, and appeared intoxicated.
She gave a false name, but police eventually determined she was
Devon McNary.
Officer Lopez and another officer, Matt Scully, transported
defendant to Paws About Town for an in-field identification.
Plata and Decker identified defendant as the man who had come
into the store. Officer Lopez then drove defendant directly to the
police station where he was later questioned by Bruce. Officer
Scully drove Plata to where McNary was being detained,
approximately five to 10 minutes from the pet store. When
Scully and Plata arrived, McNary stood on the street with other
4
police officers, and Plata remained in Scully’s car. At trial, Plata
testified that he identified the person who was standing and
speaking with the officers in the street as the man who had come
into the store. Scully testified that the person Plata had
identified was actually McNary.
Defendant was charged by information with one count of
evading a peace officer with wanton disregard for the safety of
others (Veh. Code, § 2800.2) (count 1) and one count of evading a
peace officer while driving against traffic (Veh. Code, § 2800.4)
(count 2). The information also alleged that defendant had
suffered a prior strike for a serious or violent felony conviction
(Pen. Code, §§ 667, subds. (d), (e), 1170.12, subds. (b), (c)), and
had served several prior prison terms within the meaning of
Penal Code sections 667.5, subdivision (b), and 1203,
subdivision (e)(4).
A jury found defendant guilty of both counts. Defendant
waived his right to a jury trial on his prior convictions, and the
trial court found true the allegations as to defendant’s prior
convictions. At sentencing, the trial court struck the Penal Code
section 667.5, subdivision (b) priors, but declined defense
counsel’s request to dismiss the prior strike conviction pursuant
to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The
court sentenced defendant to the midterm of two years on each
count, doubled under the Three Strikes Law (Pen. Code, §§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d)), with the sentence on count
2 stayed pursuant to Penal Code section 654. Defendant timely
appealed.
5
DISCUSSION
I. Additional Background Regarding the Interview
After arrest, police put defendant in the “intoxilyzer” room
at the police station. The room was being recorded by a video
camera. Defendant asked the desk officer questions about why
he was being held and whether he was charged with a felony that
would “fuck up his parole,” but the officer told him he did not
know.
Officer Bruce then entered the room and confirmed that
defendant had been told he was under arrest. Bruce read
defendant his Miranda rights while defendant sat on a bench in
handcuffs. Defendant responded “mhm” when Bruce asked him if
he understood his rights. Bruce told defendant that he was being
charged with felony evading arrest; he further informed
defendant that police had found defendant’s vehicle, a gold
Maxima defendant had bought the day before, abandoned on the
freeway, and he (Bruce) was the officer who originally tried to
pull defendant over. Bruce asked defendant, “Do you wanna tell
me anything about that?” Defendant asked who was driving the
car, and Bruce responded, “Well, you tell me. It’s your car.”
Defendant said he had reported the car stolen. Bruce asked a
couple of follow-up questions about this alleged theft, including
where defendant’s car had been stolen from. At that point,
defendant said, “I wanna talk to my attorney.” Bruce said, “Ok.
Alright. I’m done [inaudible].”
Approximately five seconds later, a CHP officer said to
defendant, “Hey, there’s an accident involving your vehicle. You
6
mind if I ask you some questions or you just want to invoke your
right to remain silent?” Bruce interjected, “For a separate
incident involving your car.” The CHP officer stated, “Right, for a
separate incident involving a traffic collision, about 30 minutes
ago.” Defendant responded, “What happened? [inaudible] Tell
me about the situation.” The CHP officer said, “No. You tell us.
You were in a vehicle. We’ve got witnesses you were involved in
a traffic collision and they gave a general description fitting your,
you know, physical characteristics. So, do you deny that you
were in there or you just don’t want to talk about it? [Pause]
Just a traffic collision.” Defendant replied, “I want to talk to my -
cause I want to get more input about it.” The CHP officer asked,
“So you don’t want to answer any questions?” Defendant replied,
“I don’t want to answer any questions.” The CHP officer
responded, “Alright, fair enough. Okay.”
Approximately nine seconds after the CHP officer stopped
talking, defendant said, “Hey, Officer.” Defendant then said,
“Like,” while gesturing with his head a couple of times, followed
by, “Come over here, man,” or, “Come on man.” Bruce testified
that, when defendant did this, he looked at Bruce and made the
“international sign of hey, come here, kind of thing.” Before
defendant began speaking, Bruce was at the entrance of the room
talking to CHP officers, who were leaving. Bruce approached
defendant, chuckling while responding, “Okay, alright. Well.
You got something to say? What?” Defendant, shaking his head,
looked up at Bruce and said, “Man. I fucked up bad. I fucked
up.” Bruce said, “How so?” Defendant explained he was two
7
months away from completing parole, and he was worried that
new felony charges would jeopardize his status. Defendant
begged Bruce not to charge him with a felony because he was
trying to get off parole. He said to Bruce that he “[did not] want
to be an asshole,” and, “It’s nothing personal. You’re just doing
your job.” Bruce responded, “I’m not mad at you[,] man.
[Defendant talking] It’s been a long time since I’ve been in
pursuit. [Defendant talking] I gotta keep up my skills.” Bruce
explained that defendant’s parole officer was aware of the
charges, and Bruce then explained why he had stopped
defendant, referring to defendant as the driver.
A bit later, defendant inquired what made the charge a
felony, and Bruce explained that driving against traffic elevated
the charge. Defendant said he was sorry, and Bruce explained
the charge was out of his hands, and “[e]verything is on film now.
You know that, they film everything we do.” Defendant
responded, “I know.” When Bruce mentioned his dash and body
cameras, defendant said, “But it don’t show me going the wrong
way of traffic.” After several minutes of further discussion, the
following exchange occurred:
Defendant: I wish, I just feel like, I was doing stupid
shit, I didn’t have nothing, I didn’t have nothing on
me to run for. I was clean and shit. No guns no
nothing. It was just like the hassle, get out of the
car.
Officer Bruce: Yeah, at that point, we were just
investigating. At that point nobody was in trouble
nobody was going to jail. We were just stopping you
because, domestic violence it’s pretty gruesome, we
8
have to investigate that. We were just making sure
nothing was going on. People call, we have to come.
[¶] . . . [¶]
Officer Bruce: . . . so like the only reason that you’ve
going right now is the evading. That’s it. That’s all
we’re charging. Ok?
Defendant: [unintelligible] I wanted to stop[.]
Officer Bruce: You wanted to stop? But you just
couldn’t?
Defendant: She was like “Go, go, go[.]”
Officer Bruce: Oh, she was telling you to go? You see
that’s bad on her. You know what I mean? Let me
ask you this, did you at least hear my sirens? Were
they loud enough?
Defendant: I just saw the colors.
Officer Bruce: The red and blue?
Defendant: [unintelligible]
[¶] . . . [¶]
Defendant: What’s your name Bruce? My bad, Bruce.
I really fucked up. I really wish—I wish I would’ve
stopped. I just wish everybody else [unintelligible]
Officer Bruce: Well, it happens bro. Like I said, I’m
not mad at you.
Defense counsel moved in limine to exclude these
statements as violative of defendant’s Fifth Amendment rights
and Miranda.1 After hearing brief testimony from Bruce, the
1 The only written support for the motion was two
sentences seeking to exclude statements “made by defendant in
violation of his Fifth Amendment rights,” and requesting an
Evidence Code section 402 hearing. At that hearing, the court
framed the issue as follows: “Looks like what we have is a case in
which a person was arrested, was -- looks like Miranda
9
trial court invited argument. The prosecution argued that police
had ceased the questioning when defendant voluntarily
summoned Bruce back and began discussing the case, thus
waiving his Miranda rights. Defendant’s counsel argued that
defendant invoked his rights, then he did call Bruce over, but
Bruce continued to question defendant without re-Mirandizing
him. That, defense counsel claimed, constituted the Miranda
violation. The court asked questions about whether more was
required for a valid waiver when the right to counsel had been
invoked as compared to the right to remain silent. Then, after
additional argument, the court made a lengthy oral ruling.
The court began, “Once a Miranda right to counsel has
been invoked, no valid waiver of the right to silence and counsel
may be found absent [the] necessary fact that the accused and
not the police re-open the dialogue with the authorities.” The
court commented that, while “it would be a nice rule to have a
minimum in order to find a re-initiation that the police re-
admonish a defendant[,] [i]t doesn’t appear that that has become
a bright-line rule.” The court continued, “[W]hat is required is
that the People carry the burden of proving to the Court and the
Court finding that it was the defendant or the accused who
initiates the dialogue and not the police. And the Court is aware
advisements were given, and it appears on the record that the --
there was an invocation. [¶] And then it appears -- at least what
the issue is to decide -- whether there was a reinitiation of the
conversation by the defendant and whether or not that was
actually reinitiation or not and [if it] was reinitiation whether or
not the rest of what’s being summoned by the People should be
introduced into evidence.”
10
that the law says that the police cannot design the way of their
interview to make it look like it’s the defendant who reinitiates.
It cannot lay a reinitiate trap. It cannot soften him up to hope
that he reinitiates. They must -- the police must scrupulously
obey the invocation of their rights. And if they do that and the
accused then is the one who reinitiates the conversation, then
there’s no violation of the Miranda rights.” (Italics added.)
“Case law also suggests that voluntarily and spontaneously
talking about the crime after a prior invocation is not in and of
itself a reinitiation of questioning, but the Court is to look to all
of the factors to determine whether or not it is the defendant or
the accused who is the one who reinitiates and intends to
reinitiate the conversation. [¶] [. . .] [¶] I have to look at this and
assess whether or not there was a re-initiation by the defendant
and that was his intent to -- while he understood his rights and
he had been properly advised of his rights whether he on his own
without any effort or work on the part of the officers reinitiated
the conversation and, as part of that re-initiation, began to talk
about the case. And reviewing the entire portions that have been
submitted to me at least – that’s all I can do is evaluate this
record -- is that I am finding that the defendant did reinitiate the
interview. [¶] It was his desire . . . .” The court further observed
that “the officer throughout the interview is not one of those
officers that was overbearing or creating these circumstances.”
And, if “that was the tone and tenor of the interview from that
point on, then that helps the Court decide that it was a valid
reinitiation of the conversation and therefore the defendant had
11
reconsidered his invocation and decided to waive his rights and
speak to the officers.”
The jury saw the videotaped interview, and the prosecutor
argued that defendant’s statements therein established his guilt.
II. Governing Legal Principles
Miranda “and its progeny protect the privilege against self-
incrimination by precluding suspects from being subjected to
custodial interrogation unless and until they have knowingly and
voluntarily waived their rights to remain silent, to have an
attorney present, and, if indigent, to have counsel appointed.”
(People v. Gamache (2010) 48 Cal.4th 347, 384 (Gamache).) If a
suspect expresses a desire to deal with law enforcement only
through counsel, police questioning must cease until counsel has
been made available, “unless the accused himself initiates further
communication, exchanges, or conversations with the police.”
(Edwards, supra, 451 U.S. at pp. 484–485.) This is a “ ‘ “ ‘bright-
line rule.’ ” ’ ” (Smith v. Illinois (1984) 469 U.S. 91, 98.) If the
defendant’s statements are made in response to discussion
reinitiated by police after the defendant’s invocation of the right
to counsel without an appropriate break in custody, the
defendant’s statements are presumed involuntary and are
inadmissible. (Gamache, at p. 385.) The Miranda-Edwards rule
applies during a continuous period of custody even where
different officers seek to interrogate a suspect regarding different
offenses after the suspect invokes the right to counsel. (Arizona
v. Roberson (1988) 486 U.S. 675, 682.) An officer interviewing a
suspect in custody has a duty to ascertain whether there has
12
been a previous request for counsel. (Id. at p. 687.) After a
suspect has invoked the right to counsel, police officers may
nonetheless resume their interrogation if the suspect (a) initiated
further discussions with the police, and (b) knowingly and
intelligently waived the right he had invoked. (Gamache, at p.
385.)
As our Supreme Court has recently made clear, where a
Miranda-Edwards violation has occurred and the state contends
that the defendant subsequently initiated further discussions
with the police, the court must assess whether the defendant
initiated further communication as a matter of fact. (People v.
Johnson (2022) 12 Cal.5th 544 [2022 Cal. LEXIS 2, *62–*64]
(Johnson).) A defendant “ ‘ “initiates” ’ further communication,
exchanges, or conversations of the requisite nature
[by] . . . ‘speak[ing] words or engag[ing] in conduct that can be
“fairly said to represent a desire” on his part “to open up a more
generalized discussion relating directly or indirectly to the
investigation.” ’ ” (People v. San Nicolas (2004) 34 Cal.4th 614,
642; Johnson, at *63.)
Where the defendant does initiate further communication
after a Miranda-Edwards violation, the court “must next resolve
whether [the] defendant’s renewed contact with [police] should be
deemed effective or instead the tainted product of the earlier
Miranda violations, considering all the relevant surrounding
circumstances.” (Johnson, supra, 2022 Cal. LEXIS at *64.)
“ ‘[W]here law enforcement officers have disregarded a suspect’s
previously-invoked rights by continuing to interrogate him, a
13
renewal of contact by the defendant will be considered an
“initiation” only if the decision to renew contact was not a
“response to” or “ ‘product of’ the prior unlawful interrogation.”
(Id. at *65.) “ ‘[A] defendant’s decision to talk with police cannot
be a product of police interrogation, “badgering,” or
“overreaching,” whether “explicit or subtle, deliberate or
unintentional.” ’ ” (Ibid., citing People v. Davis (2009) 46 Cal.4th
539, 596 (Davis).) “Without this limitation, police ‘might
otherwise wear down the accused and persuade him to
incriminate himself notwithstanding his earlier request for
counsel’s assistance.’ ” (Davis, at p. 5962; People v. Boyer (1989)
48 Cal.3d 247, 272–275 (Boyer) [rejecting argument that
defendant initiated further conversation after invoking right to
counsel where he called out to detective and spoke immediately
following detective’s interrogative statement]), overruled on other
grounds in People v. Stansbury (1995) 9 Cal.4th 84, 830, fn. 1.)3
2 In Davis, the defendant invoked his right to counsel and
police later encouraged him to talk, saying they had enough
evidence to make a case without a confession. (Davis, supra,46 Cal.4th at pp. 589, 591.) Our Supreme Court observed that
the defendant’s statements to police after he requested to speak
with them, approximately 15 minutes after they had encouraged
him to speak, would have been inadmissible but for the rescue
doctrine exception to the Miranda-Edwards rule, which applied
because the kidnapping victim might still have been alive. (Id. at
pp. 596–599.)
3In other jurisdictions, in circumstances where there was
an Edwards violation followed by a brief break in questioning
and a defendant’s request to speak to police, courts have found
the defendant’s subsequent statements to be the inadmissible
product of the Edwards violation. (United States v. Walker
(D.Md. 1985) 624 F.Supp. 103, 104–106 [suppressing brief
14
Additionally, even when a defendant effectively initiates
further discussion, where reinterrogation follows, “ ‘ “the burden
remains upon the prosecution to show that subsequent events
indicated a waiver of the Fifth Amendment right to have counsel
present during the interrogation.” ’ ” (Gamache, supra,
48 Cal.4th at p. 385.) Whether the defendant made a valid
waiver is “ ‘ “a matter which depends in each case ‘upon the
particular facts and circumstances surrounding that case,
including the background, experience, and conduct of the
accused.’ ” ’ [Citation.] The state must demonstrate that the
suspect knowingly and intelligently waived his right to counsel
‘under the totality of the circumstances, including the necessary
fact that the accused, not the police, reopened the dialogue with
the authorities.’ [Citation.] . . . . ‘[T]he waiver must have been
made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.’ ”
(People v. Hensley (2014) 59 Cal.4th 788, 810.) Although a
defendant’s initiation of a conversation with officers “ ‘is strong
and essential evidence of a knowing and intelligent waiver,’ ” it is
not dispositive. (Ibid.) Rather, the initiation of further dialogue
by a defendant “does not in itself justify reinterrogation.”
statement made in “response” to an Edwards violation
approximately an hour after violation]; Wainwright v. State
(Del. 1986) 504 A.2d 1096, 1102–1103 [responsive statement
made 45 minutes after improper interrogation inadmissible];
United States v. Thomas (11th Cir. 2013) 521 Fed.Appx. 878, 883
[“statement made ‘no more than a few minutes’ after an Edwards
violation does not meet the legal standard for voluntariness”].)
15
(People v. Sims (1993) 5 Cal.4th 405, 440, citing Oregon v.
Bradshaw (1983) 462 U.S. 1039, 1044.)
In evaluating a claim that a statement or confession is
inadmissible because it was obtained in violation of a defendant’s
rights under Miranda, “ ‘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. Molano (2019)
7 Cal.5th 620, 633.)
III. Analysis
Defendant contends the trial court erred in admitting his
post-arrest statements because police obtained them in violation
of the Miranda-Edwards rule. More specifically, he claims that:
1) officers impermissibly continued to question him after he
invoked his right to counsel, rendering anything he said
thereafter inadmissible; 2) his words when calling Bruce over
could not be fairly said to represent a desire “ ‘ “ ‘to open up a
more generalized discussion relating directly or indirectly to the
investigation’ ” ’ ” (Gamache, supra, 48 Cal.4th at pp. 384–385);
and 3) even if defendant reinitiated conversation, the prosecution
did not establish that he made a valid voluntary, knowing and
intelligent waiver of his right to counsel. The Attorney General
counters that police asked a couple of clarifying questions, then
“scrupulously” honored defendant’s invocation of his rights,
defendant reinitiated conversation about the case, and he
impliedly waived his right to counsel. As set forth below, we find
that defendant’s statements were the inadmissible product of
16
police interrogation following defendant’s clear invocation of his
right to counsel.
First, we address whether the officers “scrupulously”
honored defendant’s invocation of his right to counsel. After an
unambiguous invocation of this right, police must cease
interrogation. (People v. Cunningham (2015) 61 Cal.4th 609,
645–646 (Cunningham).) Interrogation “refers not only to
express questioning, but also to any words or actions on the part
of the police . . . that the police should know are reasonably likely
to elicit an incriminating response from the suspect.” (Rhode
Island v. Innis (1980) 446 U.S. 291, 301, fn. omitted.) “The
standard is whether ‘under all the circumstances involved in a
given case, the questions are “reasonably likely to elicit an
incriminating response from the suspect.” ’ [Citation.] This is an
objective standard. ‘The subjective intent of the [officer] is
relevant but not conclusive. [Citation.] The relationship of the
question asked to the crime suspected is highly relevant.’ ”
(People v. Wader (1993) 5 Cal.4th 610, 637.) This inquiry focuses
on the perceptions of the suspect. (Boyer, supra, 48 Cal.3d at
p. 275.)
The trial court’s ruling was premised on the implied finding
that police scrupulously obeyed defendant’s invocation of his
right to counsel, but the record does not support this finding.
(See People v. Clark (1993) 5 Cal.4th 950, 985 [a finding of
whether interrogation occurred is reviewed for substantial
evidence], overruled in part on other grounds in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22.)
17
It is undisputed that, about five seconds after defendant
invoked his right to counsel, the CHP officer spoke to defendant
about what he called a “separate” traffic collision involving
defendant’s vehicle.4 When defendant said, “[T]ell me about the
situation,” the CHP officer responded, “No. You tell us,” clearly
inviting defendant to talk. The officer continued, “You were in a
vehicle. We’ve got witnesses you were involved in a traffic
collision and they gave a general description fitting your, you
know, physical characteristics. So, do you deny that you were in
there or you just don’t want to talk about it?” The officer paused
briefly, then emphasized, “Just a traffic collision.” The accident
at issue occurred shortly after Bruce terminated pursuit. It was
CHP that located defendant’s car, and the CHP officer was
present during at least part of Bruce’s interrogation of defendant.
Viewed objectively, the CHP officer’s mix of statements and
express questioning was reasonably likely to elicit an
incriminating response. It therefore constituted continued
interrogation, not scrupulous honoring of defendant’s invocation
of his right to counsel.
We reject the Attorney General’s contention that the CHP
officer merely asked clarifying questions in the face of an
ambiguous assertion of the right to counsel. Where there is an
ambiguous invocation of a suspect’s Fifth Amendment rights
before a Miranda waiver occurs, officers may clarify the
4 The prosecution described this traffic collision to the court
as “a separate hit and run, somewhat related to this case as it
relates to the crash in this case.”
18
invocation. (People v. Sauceda-Contreras (2012) 55 Cal.4th 203,
217–218.) But “ ‘an unambiguous request for counsel or refusal
to talk bars further questioning.’ ” (Id. at p. 219) After a
Miranda waiver, questioning must cease when the suspect
changes his or her mind and unambiguously invokes the right to
counsel. (Cunningham, supra, 61 Cal.4th at pp. 645–646.) Here,
there was no room for clarifying questions where defendant
unequivocally invoked his right to counsel by stating, “I wanna
talk to my attorney.”
Having found that police did not properly cease
interrogation when defendant requested counsel, we will accept
for purposes of this opinion that defendant initiated further
discussions of the requisite nature as a matter of fact because, as
explained in more depth below, we find dispositive the question of
whether defendant’s “ ‘decision to talk’ ” was “ ‘a product of police
interrogation, “badgering,” or “overreaching,” whether “explicit or
subtle, deliberate or unintentional.” ’ ” (Johnson, supra,
2022 Cal. LEXIS at *65.)
In Johnson, police failed to honor the defendant’s
invocations of his rights to remain silent and to counsel four
times during a three-hour period while the defendant was being
treated for gunshot wounds after shooting and killing one of four
police officers who responded to a domestic violence call.
(Johnson, supra, 2022 Cal. LEXIS at *52–*53.) The last Miranda
violation occurred when Patterson, a psychiatrist sent by the
district attorney, attempted to interview the defendant. (Id. at
*53.) The defendant invoked his right to counsel, Patterson
19
stepped out of the defendant’s hospital observation room to speak
with police, and then Patterson followed the defendant to the X-
ray room and back to the observation room. (Id. at *39–*40.)
Approximately 20 minutes after invoking his right to counsel to
Patterson, the defendant turned to Patterson and asked, “Still
here, huh?” (Id. at *40–*41.) The defendant then spoke to
Patterson about his mental health history and eventually began
speaking about the shooting. (Id. at *41–*42.) The majority
found that the defendant’s decision to speak was not the product
of police coercion or interrogation because the police did not
badger the defendant; Patterson stepped out of the room after the
defendant’s invocation of his right to counsel and did not ask
questions for approximately twenty minutes; the defendant led
the conversation about his mental health and the events under
investigation; and the defendant said he spoke because he had
determined “it was ‘best to be honest.’ ” (Id. at *68–*74.) The
majority recognized that the defendant’s contention that he did
not “initiate the communication with Patterson is not without
force,” but found, after listening to the defendant’s interview and
considering the totality of the circumstances, that the defendant
had freely initiated the conversation. (Id. at *62, *66, *80.)
In Boyer, by contrast, the defendant clearly invoked his
right to counsel; improper and coercive interrogation ensued and
then ceased; and, sometime later (after the defendant
participated in allegedly voluntary fingerprinting), an
investigator called the defendant back into the interrogation
room and “launched into a monologue on the status of the
20
investigation,” including an assertion that a new witness had
directly contradicted some of the defendant’s previous
statements. (Boyer, supra, 48 Cal.3d at pp. 264–267, 274.) As
the investigator turned to leave the room, the defendant called
him back and said, “Hey, wait a minute. Come back here and sit
down. You’re right, I can’t live with it. I did it. I didn’t mean to
do it. But I did it.” (Id. at p. 267.) Our Supreme Court found
that the investigator’s remarks were clearly renewed
interrogation initiated by the police, and the defendant’s
statements were the result of improper interrogation, not the
defendant’s voluntary initiation of discussion with police. (Id. at
pp. 274–275.)
Upon independent review, we find that defendant’s
statements to Bruce were illegally obtained because they were
the result of the authorities’ improper continuation of
questioning.5 (See People v. Sapp (2003) 31 Cal.4th 240, 267–268
[independently determining defendant’s decision to summon
investigators and resulting statements were voluntary and not
result of coercion or Miranda violation]; People v. Neal (2003)
31 Cal.4th 63, 80, 85 [finding defendant’s initiation of contact
with police after Edwards violation involuntary on independent
review, stating subsequent confessions obtained in violation of
5 The trial court concluded that defendant spoke of his own
volition, but, as set forth above, this conclusion appeared to be
premised on the erroneous implied finding that police
scrupulously honored defendant’s invocation of his right to
counsel.
21
Edwards were inadmissible in case-in-chief, and holding them
inadmissible for impeachment].)
Here, the circumstances show that the CHP officer engaged
in questioning that was reasonably likely to elicit incriminating
information after defendant clearly invoked his right to counsel,
and the questioning had the direct effect of eliciting
incriminating information. Importantly, prior to the
impermissible questioning, Bruce told defendant that his car was
found abandoned on the freeway, and defendant maintained it
had been stolen. The CHP officer then invited defendant to
explain what happened with the accident, relayed that a witness
had linked defendant to the crash scene, and inquired whether
defendant denied being there. Although defendant invoked his
Fifth Amendment rights in immediate response and the CHP
officer ceased his questioning, a mere nine seconds passed
between the time the CHP officer stopped speaking and the time
defendant called Bruce over to say, “Man. I fucked up bad.” The
impermissible interrogation was not overtly badgering, but the
nine seconds that elapsed in this case are a far cry from the 20
minutes of silence between the Miranda violation and the
defendant’s ensuing initiation in Johnson. (Johnson, supra,
2022 Cal. LEXIS at *70.) In further contrast to Johnson,
defendant’s interview does not suggest that he spoke out of an
independent desire to be honest. (Id. at *74.) Rather, the record
shows that defendant changed his mind and spoke as a direct
result of the CHP officer’s improper questioning, in that he
summoned Bruce over only seconds after the CHP officer’s
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questions made clear that defendant was unlikely to persuade
law enforcement that his car had been stolen and driven by
someone else. (Cf. Boyer, supra, 48 Cal.3d at p. 274 [statement
“was the result” of an Edwards violation where defendant called
officer back and confessed immediately after officer confronted
defendant with a witness who “disputed defendant’s claim as to
the last time defendant had visited the victims’ residence”].)
The bright-line rule of Edwards ensures that police do not,
through impermissible interrogation, badgering, or overreaching,
“explicit or subtle, deliberate or unintentional,” persuade a
defendant to incriminate himself notwithstanding an earlier
request for counsel. (Smith v. Illinois, supra, 469 U.S. at p. 98;
Davis, supra, 46 Cal.4th at p. 596.) On this record, we find that
defendant’s decision to speak to Bruce and his ensuing
statements were the “tainted product” of the Edwards violation.6
(Johnson, supra, 2022 Cal. LEXIS at *64.) As such, the
statements were subject to the Edwards presumption of
involuntariness (Maryland v. Shatzer (2010) 559 U.S. 98, 106
[describing the presumption]), and they should have been
suppressed.
6 With respect to the CHP officer’s questions, the Attorney
General argues only that these were permissible clarifying
questions after an ambiguous invocation of the right to counsel, a
position we have rejected. The Attorney General does not argue
in briefing that, even if police violated Edwards by failing to
scrupulously honor the defendant’s invocation of his right to
counsel, defendant’s ensuing statements to police were
nonetheless admissible.
23
We turn next to the question of whether the erroneous
admission of defendant’s statements was harmless beyond a
reasonable doubt. (Chapman, supra, 386 U.S. at p. 24; People v.
Cunningham (2001) 25 Cal.4th 926, 994.) Under Chapman, the
inquiry “is not whether, in a trial that occurred without the error,
a guilty verdict would surely have been rendered, but whether
the guilty verdict actually rendered in this trial was surely
unattributable to the error.” (Sullivan v. Louisiana (1993)
508 U.S. 275, 279.) Keeping in mind that “ ‘the defendant’s own
confession is probably the most probative and damaging evidence
that can be admitted against him’ ” (Arizona v. Fulminante
(1991) 499 U.S. 279, 296), the admission of defendant’s
statements in this case was not harmless beyond a reasonable
doubt. The prosecution’s evidence was largely circumstantial.
Before the chase, the 911 callers described a man driving the car
they observed, but they did not provide much detail about the
driver, the passenger, or the car. Neither of the employees from
Paws About Town testified to seeing the crash behind the store.
Defendant and McNary were both about six feet tall and
apparently resembled each other enough that, at trial, one
employee testified that he identified defendant at an in-field line
up away from the store when police testified this identification
was in fact of McNary.
Bruce provided the strongest evidence of guilt with his
testimony that the driver of the car he pulled over appeared to be
a Black man who had dreadlocks similar to those that defendant
had in court. But, as defense counsel pointed out, Bruce first saw
24
the car from across the divided four-lane highway, and Bruce was
pulled over behind the car for less than ten seconds before it
drove off. Bruce conceded that the car’s back windshield had
some tint, and he could not identify the passenger’s race. Bruce
did not approach the car before it took off. In court, he identified
defendant as the man he interviewed at the station, but Bruce
testified that he “did not see the driver until he was back at the
station.”
Finally, the prosecutor’s closing argument emphasized
defendant’s statements to the police as evidence of his guilt, and
the jury twice asked to review the videotaped statements during
deliberations. Approximately 11 minutes after seeing the
videotape for the second time with enhanced audio, the jury
reached a guilty verdict. On these facts, we cannot conclude that
“the verdict actually rendered in this trial was surely
unattributable to the error” in admitting defendant’s statements.
(Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) His
convictions must therefore be reversed.
DISPOSITION
The judgment is reversed.
BROWN, J.
WE CONCUR:
POLLAK, P. J.
STREETER, J.
People v. Nwuzi (A159805)
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