People v. Nudd , 12 Cal. 3d 204 ( 1974 )

Opinion

CLARK, J.

Defendant appeals from judgment entered on jury verdicts convicting him of two violations of Penal Code section 4573.6: Possession of narcotics (Demerol) and narcotics paraphernalia (a hypodermic syringe) by a state prison inmate. We affirm the judgment.

While patrolling a cell block, a state correctional officer noticed defendant had blacked out his window, but was sitting awake beside a table at the rear of the cell, his back to the door and his right hand clenched. A knotted strip of rag and small vial labeled “Demerol” lay on the table. Asked what he was doing, defendant answered “Nothing.” Told to hand over whatever he was holding, defendant shook his head “no,” and, his hand still closed, pushed the officer away. The officer shoved defendant into the corridor, but slipped. Defendant clambered over him back into the cell, kicked the lid off the toilet, and making a throwing motion, flushed it repeatedly.

The struggle ended, the officer found a makeshift syringe on the corridor floor a foot from defendant’s cell door. It had not been there previously, nor had anyone been in the corridor in the interim. The syringe contained YlVi to 25 milligrams of Demerol, a synthetic narcotic. The vial had a capacity of approximately 100 milligrams, sufficient to produce some euphoric effect had it been full of Demerol. However, when found on the cell floor after the struggle it was broken, insufficient fluid remaining for analysis.

On direct examination, defendant testified that the officer grabbed him for no apparent reason, and that he had nothing in his hand, did not struggle toward the toilet, throw anything into it, or flush it. On cross-examination, defendant was asked if he had not admitted to correctional officers that he had thrown contraband, into the toilet. The defense objected.

At the in camera hearing to determine the admissibility of defendant’s extrajudicial statement, and again in open court when his objections were overruled, the officer and his supervising lieutenant testified as follows: When the lieutenant advised him of his Miranda¹ rights and asked him whether he wanted to talk, defendant responded by asking if he would be charged with a felony. Informed he probably would be, defendant said, “Well, then, I don’t have anything to say.” The lieutenant then asked defendant “off the record” why he had fought with the officer and defendant replied he liked the officer but had to get rid of the “speed.”

A statement inadmissible as substantive evidence for violating Miranda, may nevertheless be used to impeach a defendant’s credibility if the statement is otherwise trustworthy. (Harris v. New York (1971) 401 U.S. 222 [28 L.Ed.2d 1, 91 S.Ct. 643].) However, defendant’s statement, unlike Mr. Harris’, was .made after he had been advised of his Miranda rights and had asserted his privilege against self-incrimination. Holding his statement admissible under Harris, defendant contends, will encourage Miranda violations and discourage other defendants.from testifying for fear they will be convicted by jury misuse of the statements as substantive evidence despite instructions limiting their use to impeachment.

Critics predicted Harris itself would have the same effects.² But the Harris court, anticipating the criticism and recognizing the conflicting values at stake, struck the balance in favor of seeking the truth. “The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner’s credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief. [¶] Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. ... [¶] The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” (401 U.S. at pp. 225-226 [28 L.Ed.2d at pp. 4-5]; citations and fn. omitted.)

We adopt the Harris rationale. Moreover, this case is in greater harmony with Miranda than Harris itself, because defendant — unlike Mr. Harris— was made aware of his Miranda rights.

Invoking the principle that an accused may not be impeached by an “involuntary” statement (People v. Underwood (1964) 61 Cal.2d 113, 120 [37 Cal.Rptr. 313, 389 P.2d 937]), defendant next contends his statement was necessarily involuntary. His contention finds apparent support in Miranda, but the support is illusory. “[A]ny statément taken after the person invokes his privilege [against self-incrimination] cannot be other than the product of compulsion, subtle or otherwise.” (Miranda v. Arizona, supra, 384 U.S. 436, 474 [16 L.Ed.2d 694, 723].) The sense in which a statement taken after invocation of the privilege is deemed “involuntary” must be distinguished from what is elsewhere in Miranda called the “traditional” sense of the term. (See Miranda v. Arizona, supra, 384 U.S. at p. 457 [16 L.Ed.2d at pp. 713-714].)

A statement is involuntary in the traditional sense if it is the product of physical or psychological coercion. (Rogers v. Richmond (1961) 365 U.S. 534, 544 [5 L.Ed.2d 760, 768, 81 S.Ct. 735]; In re Cameron (1968) 68 Cal.2d 487, 498 [67 Cal.Rptr. 529, 439 P.2d 623]; People v. Lopez (1963) 60 Cal.2d 223, 248 [32 Cal.Rptr. 424, 384 P.2d 16].) “A principal objective of [Miranda] was to establish safeguards that would liberate courts insofar as possible from the difficult and troublesome necessity of adjudicating in each case whether coercive influences, psychological or physical, had been employed to secure confessions or admissions.” (People v. Fioritto (1968) 68 Cal.2d 714, 717 [68 Cal.Rptr. 817, 441 P.2d 625].) Thus, insofar as the prosecution’s case in chief is concerned, Miranda has relieved courts of the necessity of determining whether a statement taken in violation of its safeguards may also have been the product of coercion. However, the determination of voluntariness is still necessary under Harris when the statement is offered for impeachment. As the statement there held inadmissible was coerced, People v. Underwood, supra, does not govern this case.³

Defendant contends his statement was involuntary in the traditional sense, as well, because it was made in reliance on the lieutenant’s invitation to speak “off the record” and in response to coercion implicit in his power to affect defendant’s conditions of confinement and chances of parole. However, when testifying at the in camera hearing on the voluntariness of his statement, defendant did not even suggest it was the product of such considerations. Instead, he simply denied making the statement. In fact, although his testimony on the point is not free from ambiguity, it appears defendant did not even realize the lieutenant was offering him the opportunity to speak confidentially.⁴

Assuming arguendo that his statement was admissible under Harris to impeach his credibility, defendant contends the trial court committed prejudicial error by failing to instruct the jury on its own motion that consideration of the statement must be limited to that issue. Granted, even though not requested to do so, the trial court must instruct the jury on the general principles of law raised by the evidence. (People v. Perry (1972) 7 Cal.3d 756, 788 [103 Cal.Rptr. 161, 499 P.2d 129]; People v. Hood (1969) 1 Cal.3d 444, 449 [82 Cal.Rptr. 618, 462 P.2d 370].) But absent request by a party, there is no duty to give an instruction limiting the purpose for which evidence may be considered. (See Evid. Code, § 355; People v. Cantrell (1973) 8 Cal.3d 672, 683 [105 Cal.Rptr. 792, 504 P.2d 1256]; People v. Perry, supra, 7 Cal.3d at pp. 787-788; People v. White (1958) 50 Cal.2d 428, 430 [325 P.2d 985]; People v. Simms (1970) 10 Cal.App. 3d 299, 310-311 [89 Cal.Rptr. 1].)

Defendant accuses the prosecutor of misconduct on the ground he did not offer his statement until rebuttal, improperly suppressing it prior thereto. However, the statement could not properly have been introduced in the prosecution’s case in chief because it was clearly inadmissible under Miranda and Fioritto. Moreover, there was no showing the prosecutor had knowledge of it before defendant testified, prompting the lieutenant to reveal the statement he had until then kept in confidence.⁵

Finally, contrary to defendant’s contention, the other evidence was sufficient to support the convictions. (See People v. White (1969) 71 Cal.2d 80, 82 [75 Cal.Rptr. 208, 450 P.2d 600]; People v. Groom (1964) 60 Cal.2d 694, 696 [36 Cal.Rptr. 327, 388 P.2d 359]; People v. Redrick (1961) 55 Cal.2d 282, 285 [10 Cal.Rptr. 823, 359 P.2d 255].)

Judgment affirmed

Wright, C. J., McComb, J., and Burke, J., concurred.

1 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974],

2 Note, Constitutional Law — Evidence—Statements Inadmissible Against a Defendant as Substantive Evidence May Be Used to Impeach Credibility of Defendant’s Trial Testimony (1970) 39 Geo.Wash.L.Rev. 1241, 1246-1248; Note, Criminal Procedure —• Self Incrimination —• Statement Admissible to Impeach Defendant Even Though Miranda Warnings Were Not Given (1971) 40 Fordham L.Rev. 394, 399-400; Note, Evidence — Criminal Law — “Trustworthy” Self-Incriminating Evidence Not Otherwise Admissible Under Miranda v. Arizona Is Admissible to Impeach an Accused’s Trial Testimony (1971) 49'Texas L.Rev. 1119, 1126-1127; Note, Evidence —Statements Obtained in Violation of Miranda Guidelines May be Used to Impeach Testifying Defendant’s Credibility (1971) 24 Vand.L.Rev. 843, 848.-850; Note, The Supreme Court, 1970 Term (1972) 85 Harv.L.Rev. 3, 51-52.

3 The defendant there testified he made the statement because he was physically exhausted from lack of sleep after police repeatedly awakened him, he had a piercing headache caused by sleep loss and physical abuse from the victim’s family, and an officer said he personally would see that defendant was escorted to the gas chamber. (People v. Underwood (1964) 61 Cal.2d 113, 119-121 [37 Cal.Rptr. 313, 389 P.2d 937].)

4 “Q. Do you recall [the officer] saying something to you about talking off the record? [¶] A. No. sir. [¶] Q. Did you talk to him off the record? [¶] A. Yes, I did. We talked afterwards; I don’t know if it was off the record but we talked.”

5 At the in camera hearing, the correctional officers testified they had not previously recorded or reported defendant’s statement and would have continued to keep it in confidence had he not perjured himself.