People v. Hanley CA1/4

Filed 9/28/21 P. v. Hanley 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A157228
v.
THOMAS Z. HANLEY, (San Francisco County
Super. Ct. No. SCN202219)
Defendant and Appellant.
In April 2004, Thomas Hanley’s mother, Ann Outin, was killed during
a violent attack in her home. That same month, a complaint was filed
charging Hanley with the murder but proceedings were delayed due to
concerns about Hanley’s competency. In 2007, Hanley was formally charged
with first degree murder for financial gain. (Pen. Code, §§ 187 & 190.2, subd.
(a)(1); statutory references are to this code). In 2008, Hanley filed a motion to
suppress incriminating statements he made to police, which took years to
resolve. After Hanley’s suppression motion was denied in 2012, he entered a
plea of not guilty by reason of insanity.
In 2016, a jury convicted Hanley of second degree murder with an
enhancement for personally using a knife. (§§ 187 & 12022, subd. (b)(1)). In
2018, the trial court found that Hanley was sane when he killed Outin. He
was sentenced to 15 years to life plus one year in prison.
1
On appeal, Hanley contends his suppression motion was erroneously
denied and the prosecutor committed misconduct during closing argument to
the jury. We agree with Hanley that investigators should have given
Miranda warnings before they interviewed him at the police station, but we
find no prejudicial error and thus affirm the judgment.
BACKGROUND
I. Prosecution Evidence
A. Background
In September 2003, Hanley began living at Crossroads, a residential
placement facility in San Francisco designed to help young adults with
mental health issues transition to independent living. For the most part,
Hanley followed the program rules and he appeared to get along with
residents and staff. In February 2004, however, Hanley told Crossroads
program director, Maria F., that he wanted to move out because he was
afraid of another resident named Ivan R. Hanley reported that Ivan was in a
gang and that he extorted $100 from Hanley by threatening to kill him. Ivan
denied Hanley’s accusation, claiming that Hanley owed him $100 because he
bought Ivan’s jacket but failed to pay for it. Nevertheless, Hanley said he
wanted to move back home with his mother, Ann Outin.
During most of February and March 2004, Hanley did not reside at
Crossroads.1 For some part of that time, Hanley had parties at Outin’s house
while she was on vacation in Europe. When Outin returned, she was upset
with Hanley because of the parties and because her house had been damaged.
On April 5, Hanley moved back into the Crossroads facility.
1 Crossroads maintained a daily logbook where staff documented when
residents left or returned to the facility, whether they took their medication,
and other issues or conflicts that arose. A copy of the logbook was admitted
into evidence at Hanley’s 2016 murder trial.
2
On April 14, 2004, Hanley told Maria F. that he was worried about his
mom because a former Crossroads resident named Anthony D. had told him
that if Outin tried to get Anthony in trouble because of the parties, he would
have her killed or kill her himself. Maria was aware that Outin wanted to
talk to Anthony because Outin had called and asked for his contact
information, which Maria refused to provide. When Maria suggested that
Hanley call his mom and tell her about Anthony’s threats, Hanley responded
that the phone line was busy and he suspected it was off the hook. Maria
suggested calling the police, which Hanley said he would do the following
day.
B. Hanley’s 911 Call and the Crime Scene Investigation
On the morning of April 15, 2004, Hanley told Maria F. he was going to
his mom’s house for a family therapy session and he would call the police
when he got back. Later, at around 11:00 a.m., Hanley called 911 and
reported that his mother had “just been murdered.” Hanley told the operator
he did not see what happened; he had just arrived at his mom’s house for
family therapy and when nobody answered the doorbell he went around back.
He found his mom on the floor and there was “blood everywhere.”
When the 911 operator asked if Outin had been having “problems of
some kind,” Hanley reported his suspicions about Anthony D. Hanley
explained that he had a party at his mom’s house while she was on a trip to
Paris and when she returned she discovered some of her things were missing.
Hanley said that he had told Anthony that his mom wanted her things back
and if Anthony did not return them she might “call the police or something.”
Hanley recounted to the operator that Anthony told him that he didn’t care
and wasn’t worried and then said something like “I’ll kill the bitch or
whatever.” The operator told Hanley the police would be there soon. Hanley
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asked if he should open the door even though there was “blood all over the
doors and everything.” The operator told Hanley to try not to touch things
and stayed on the phone until Hanley indicated the police had arrived.
Officer Etcheveste was one of several San Francisco police officers who
responded to Hanley’s 911 call. When Etcheveste arrived at Outin’s house,
Hanley was sitting on the steps of a neighbor’s house. Sergeant Bosch, who
was already at the scene, instructed Etcheveste to “stand with” Hanley, to
not ask any questions, and to remember and report any statements Hanley
made.
While Etcheveste waited with Hanley, he received updates on his police
radio from officers who were conducting an initial search of Outin’s house.
Hanley appeared to listen to these updates with interest. When officers
reported they were going to search an in-law unit in the basement of Outin’s
house, Hanley stated: “ ‘Oh, no, the officers are checking the first floor.
That’s where my knives collection is. It’s under my bed where I used to stay.
That’s where Andy would look, yeah, when I saw my mom’s feet.’ ” A short
while later, Hanley said: “ ‘They were coming after me next. That Anthony
[D.], I should have never let them over. I just wanted to see my mom. Damn,
I came over this morning about 11:00 a.m. I rang the doorbell and waited for
her to answer. I looked at the doorknob and saw some blood. I went over to
the side of the house and saw the gate was opened. I thought that was weird.
And I checked the back door and saw it wide open. I went inside and went
upstairs and saw all this blood. Blood was splattered all over the place. I
went into my mom’s bedroom and saw her laying there. Man, I called the
police. Damn it. I knew Anthony [D.] would kill her. Do you know he was—
do you know he has been arrested for rape? Man, I can’t believe this.’ ”
4
Homicide inspectors Everson and Maffei arrived at Outin’s home
shortly after noon. A sergeant directed the inspectors to Hanley, who was
sitting on the neighbor’s steps with his family therapist, Mr. Scott. After the
inspectors introduced themselves and expressed their condolences, they told
Hanley they would like to speak with him because he was the person who
discovered his mother’s body and called 911. The inspectors asked if Hanley
would come to their office to give a statement and he said that he would. The
inspectors made the same request of Scott because he had indicated that he
came to the house to do a family therapy session with Hanley and Outin.
Scott declined but said he would come in later. The inspectors asked if
Hanley had a way to get to the Hall of Justice and when he said that he did
not they offered to have someone drive him. Hanley said that was fine. A
patrol officer drove Hanley to the Hall of Justice while the inspectors
investigated the crime scene.
When Everson viewed the scene, he first noticed blood outside the
house, on the stairs and front door. Inside, there was blood on the banister in
the stairwell leading to Outin’s bedroom. Outin’s body was on her bedroom
floor, partially blocking the door. Blood was everywhere and there were signs
of a violent struggle. A television had been knocked to the ground and things
were in disarray. A bloody knife handle with part of a blade attached was on
a chair. A set of knives was found under a bed on the lower level of the home.
After the inspectors supervised the collection of evidence and canvassed
the neighborhood for possible witnesses, they returned to the Hall of Justice
to interview Hanley. Meanwhile, the medical examiner was called to the
scene to receive Outin’s body. After completing an autopsy, the medical
examiner concluded that Outin bled to death as a result of sharp force and
blunt trauma injuries, which included four stab wounds and six incised
5
wounds in the region of her neck and head, 38 incised wounds on her hands
and wrists, and a total of 52 contusions, abrasions and lacerations on various
parts of her body.
C. Hanley’s Interview and Recorded Statements
At around 4:00 p.m., Everson and Maffei began taking Hanley’s
statement, which was recorded, transcribed and admitted into evidence at
Hanley’s trial. After re-introducing themselves, the inspectors asked Hanley
some general questions about himself and said that they “just want[ed] to
find out what happened today.”
Hanley stated that he was at Crossroads where he woke up at around
eight or nine that morning. He described Crossroads as a residential facility
for kids that have “been . . . arrested or whatever” and need rehabilitating.
Maffei asked if Hanley had recently been arrested, but Hanley said that he
had not. Hanley explained that although he had been on probation for
several years, he “got off” and the only reason he moved to Crossroads was
because he could not “deal” with the fact that his mom and his girlfriend were
not getting along. Hanley said that his girlfriend had lived at his mom’s
house, but had gone to Oregon and killed herself, or so the police suspected.
Hanley stated that he walked the 30 minutes from Crossroads to his
mom’s house that morning because he had a family therapy appointment at
11:30. He arrived around 11:00 and noticed several unusual things: there
was blood on the front door handle, the back gate was opened, and several
doors in the back of the house were opened. Hanley made his way to his
mom’s room, saw blood and found her body. He was shocked and confused
and immediately called 911.
Everson asked if Hanley had a key to his mom’s house. Hanley did not;
when he wanted to get in, he picked the lock with a small knife that he kept
6
in a planter box. Hanley volunteered that he was not “the only one that knew
how to pick those locks,” and began talking about parties he hosted at his
mom’s house. Anthony D. had invited people over who brought drugs and
alcohol. Hanley did not think they should drink and drive, so he told them
how to pick the locks so they could “crash” at his house. Hanley had several
parties over a three-week period while his mom was away. Anthony D. was
at every party. Anthony was a gang member who Hanley met at Crossroads.
Hanley did not know where Anthony lived but had his phone number, which
he had given to his mom because some things had been stolen from her home
and she wanted to talk to Anthony about it. Hanley told the inspectors that
he had warned Anthony that his mom was planning to get her things back
and Anthony responded that he would kill Hanley’s mom to avoid having to
go back to jail.
Maffei asked Hanley where he had been the previous night. Hanley
said he was at Crossroads with Ivan G. He spent the night in Ivan’s room
because he had a nightmare. Hanley often had a nightmare where he felt
breathing on his neck, which he attributed to the fact that he had been
molested from the age of seven to thirteen by a neighbor who still lived
behind his mom’s house. Hanley said that he had spent the last several days
at Crossroads because he was not allowed to leave the facility unless he had
an appointment. He spoke to his mom on the phone but had not seen her
since the previous Friday when she came to Crossroads to drop off a needle
and thread, so he could repair a rip in his shoe. Hanley showed the
inspectors his shoe and Everson asked to see the bottom. At Everson’s
request, Hanley also showed Maffei.
Maffei said he was confused because Hanley had indicated that he was
not allowed to leave Crossroads but then said that he and Anthony had
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parties at Outin’s house. Hanley explained that he stopped going to
Crossroads for about a month because he wanted to live at home. During
that period he did not “go to school or anything,” he just had parties “day in-
day out.” The inspectors asked when the last time Hanley was with his mom
at her house. Hanley did not remember what date he was last at the house
but recalled that it was two days after Outin returned from her trip. He had
been told that if he went to the house again the police would be called on him,
but then he called his mom and asked if he could pick up some things. She
agreed that he could come over that day on the condition that he “put the
computer back together” and give her Anthony’s phone number, which he did.
Hanley acknowledged that he argued with his mom about things that
he should not have been doing, like having the parties, not going to school
and making stupid mistakes. They did not argue about drugs, although
Hanley had taken many illegal drugs at the house when people brought them
to his parties. While talking about the type of people who came to his parties,
Hanley said that one guy had pulled a knife on him because he did not pay
for some “crystal.” The conversation turned to Hanley’s knife collection,
which he “hid” in the downstairs unit. Hanley appeared to enjoy talking
about his knives and used a note pad to “draw them out.” Hanley hid his
knives in the downstairs unit because he did not want anyone to take them,
but he told Anthony D. and Anthony’s friends where the knives were even
though he did not trust them.
Everson asked Hanley, “what do you think happened to your Mom?”
Hanley said he did not know, but he could think of four possible culprits: the
neighbor who had molested him; Anthony; or the guy who had pulled a knife
on him at his party and the guy’s friend, whose name was “Tank.” When
Everson asked if Hanley’s mom had a problem with anyone, Hanley
8
responded that she had a problem with Anthony. Hanley admitted that his
mom was “really” mad at him because she had trusted him and he broke that
trust by letting people into her house. When Everson asked if that was a
heavy burden Hanley responded that he had let his mom down before and
she always forgave him.
Everson asked how Hanley felt about his mom being dead. Hanley said
he was shocked and upset and hoped the person who did it would get “the
punishment . . . he deserves.” Everson suggested that maybe the person
needed “help, not punishment,” which led to a discussion about how hard it is
to live with guilt—guilt from killing someone and guilt from disappointing
someone. Hanley said he had disappointed his mom so many times.
Sometimes he just did not care and other times he had tried to kill himself
because he felt so bad. He described some of his suicide attempts and how he
used knives and razors to harm himself, showing the inspectors some fresh
cuts on his hands.
Hanley acknowledged that it was a “huge” disappointment to Outin
that Hanley had parties at her house. He thought about hurting himself, but
he decided to face her and talk to her about it. There was an “argument,” and
his mom told him to “get the hell out of my house.” But after they talked
more, Outin said Hanley could come home if he started going to school or
work or did something productive with his life.
Everson suggested again that the person who killed Outin might need
help rather than punishment and said that the first step on the road to
recovery is to admit what happened. Everson suggested there may have been
an argument that got out of control. Hanley responded that Outin may have
argued with Anthony D. He had told his mom to “talk nicely” if she did call
Anthony because she tended to get really mad at people. When his mom got
9
angry at him, Hanley would try to be “the bigger person” and make her notice
that she was wrong to yell. Everson said that if Hanley knew who had hurt
his mom and told who that person was, they could help him because he would
need help dealing with his guilt. After Hanley said, “[y]eah I know what you
mean,” Everson asked “[w]hat happened.” Hanley said he did not know; that
was what he was “trying to figure out.” Everson said he thought Hanley did
know, but Hanley denied it.
Everson asked if Hanley hurt his mom. Hanley responded, “No, I was
at the Crossroads the whole entire time.” Maffei suggested the neighbors had
seen Hanley near the house. He asked if Hanley understood that there is a
“certain responsibility” that comes with committing a crime. Everson asked
if Hanley needed help and said that Hanley seemed nervous. Hanley
acknowledged needing help and then admitted that the knife that killed his
mother was his knife. Everson asked why Hanley “use[d] it.” Hanley became
non-responsive, but then said it was about “[r]espect.” He had always tried to
live up to his mother’s expectations but never could. Hanley became non-
responsive again, failing to answer when asked if he wanted to talk about
what happened and if he understood why he was at the police station. The
inspectors patiently repeated their questions, encouraged Hanley to relax,
not to drift off and to have a conversation. Then Everson asked, “Did you
hurt your Mother? Answer the question.” When Hanley did not respond,
Everson said, “Tell me the truth,” and Hanley said, “Yes.”
Everson told Hanley to look at him and said, “I have something I need
to tell you, okay.” He asked if Hanley understood he was at the police
station. Hanley said “[y]es,” then Everson advised Hanley of his “Miranda”
rights. (See Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) As Everson
delivered the admonitions, Hanley interrupted, saying “Yes I know all that.”
10
After Everson completed the warnings, Hanley confirmed that he understood
his rights.
The inspectors started asking specific questions about what happened.
Hanley either did not respond or gave non-substantive answers. Maffei
acknowledged the situation was upsetting and suggested they talk about
what happened after the incident. Hanley told the inspectors that he was not
“the person to ask” about what happened, and he was not allowed to say the
person’s name. Maffei asked if the person was somebody inside of Hanley,
and asked if that person could answer their questions. Then Hanley began
providing substantive responses and even altered his voice as the interview
progressed.
Hanley said that his friend Ivan told him to stab Outin, and Hanley did
it because he wanted “respect.” Ivan did not participate in the attack, but
waited outside Outin’s house. Ivan kept saying he wanted money and telling
Hanley to get money from the house. Hanley told the inspectors that Ivan
urged him to “[j]ust go in there, kill her and get it over with” because of all
“the shit” that she had done to Hanley. He and Ivan had several
conversations about this and Ivan told Hanley he would get at least half of
Outin’s money or more if he killed her. Then one night they snuck out of
Crossroads and went to Outin’s house. Hanley did not want to hurt his mom,
but Ivan challenged him by calling him weak and questioning his power.
When Hanley came outside after killing Outin, Ivan was proud and respected
him. They went back to Crossroads, Hanley gave his clothes to Ivan and took
a shower.
When Hanley started to become non-responsive again, Maffei asked
what Hanley was thinking and what the “voice inside” was telling him.
Hanley said that the voice was telling him not to talk and was worried about
11
where he would end up. But then Hanley denied being tired and agreed that
Everson could ask him another question, and the interrogation continued. At
first, Hanley maintained that he was not sure what happened in his mother’s
house, but then he told the inspectors that “he’s showing me.” Hanley stated
that “he” took the knife, stabbed Outin in the head three times, and tried to
strangle her, break her neck and cut her throat. Hanley wondered out loud
why the person was showing him this and why the person had done this.
The inspectors took a break, leaving Hanley alone in the interview
room for several minutes. When Everson returned to the room, Hanley was
sitting on the floor. Everson helped Hanley back into his chair and the
interview continued. Everson asked what else the person that Hanley had
described said or made him do. Hanley responded that the person told him
he would get “everything [he] wanted,” respect, money, power, and
immortality. Hanley said that “I didn’t stab her, he did.” That person
accosted Outin while she was in her bed, she fought back, and he used
Hanley’s hands to stab her and try to break her neck.
The conversation turned to Hanley’s childhood and how Outin had
mistreated him. Then Maffei asked what Hanley did with his clothes after he
got back to Crossroads. Hanley responded that Ivan told him “how to do
things,” suggesting ways he could kill Outin and how to clean up. Hanley
said there were two people with him that night: Ivan, who waited outside the
house; and another person who was inside of Hanley. This other person was
“Jake the Devil” and he had been inside of Hanley for a few weeks, “[s]ince
the party started.”
Hanley said he went into his mother’s room and stabbed her in the
head three times. She woke and got up “right away” and started screaming.
She could not see Hanley because it was dark, and he wore a mask. Hanley
12
wore plastic bags on his hands, which he left in the room. But he went back
later and retrieved them and the knife, which he had to pry out of his mom’s
hand. Hanley put the bags and the knife in another plastic bag and threw it
in a storm drain. He did not leave anything else at the house other than the
handle of his knife, which broke off during the stabbing. Hanley agreed to
show the inspectors the drain where he threw the knife. As they prepared to
leave, Hanley asked what would happen to Ivan. Everson said that he could
probably arrange for Hanley to see Ivan if he wanted to. After a brief
hesitation, Hanley said that he did want to see Ivan.
After the interview, Hanley directed Everson to the storm drain as they
rode in the back of an unmarked police car driven by Inspector Cleary. When
they arrived at the drain, Everson got out of the car and made arrangements
to retrieve the evidence. While Hanley waited in the car, he told Cleary that
he had done “something terrible to his mother” and he was going to have to
face his family. Cleary asked what Hanley had done with his bloody clothes
and he responded that he put them in a backpack and threw them in a
garbage can on the street. From the storm drain, officers recovered a bag
that contained a bloody knife, knife handle and pair of latex gloves.
After the inspectors returned Hanley to the police station, he was put
in an interview room with Ivan G. When they were alone, Hanley said “I did
it. I confessed. It’s weird.” Ivan said that he did not want to confess and told
Hanley, “[s]o I don’t know where you live. Nothin. Nothin. I just, I just been
to your house once and that was a long time ago.” Ivan called Hanley
“stupid,” and asked what the police had said. Hanley responded that the
police thought he was “completely insane.” Ivan asked Hanley to confirm
that Ivan had never asked him “anything about money.” Hanley agreed and
then said the police had “caught [him] right away,” and he “couldn’t lie”
13
because the neighbor had seen him. Hanley said the neighbor saw him and
Ivan leave the house. Ivan told Hanley to shut up. He said he did not know
anything “about this shit” and was “totally unaware of everything.” Hanley
nodded his agreement.
Hanley told Ivan he was going to jail that night. Ivan called Hanley
stupid again and asked “[w]hy’d you do it?” Hanley said he did it for respect.
Ivan told Hanley, “[y]ou’re done.” Hanley responded that he would probably
get “a lifetime of psychiatric probation, five years in jail” or one year if he was
“lucky.” He said he was not “getting any lawyers,” he would just “take
whatever,” and that his conscience was “clear now.”
Ivan expressed disbelief about the situation. He said he had thought
Hanley was just a “nice kid” who liked to play video games. Hanley wanted
to know what Ivan thought of him now and Ivan responded, “Crazy man.
What [is] your problem?” Hanley asked if Ivan would tell Anthony about
what happened and then said, “I’ve been possessed.” Ivan said he was scared
of Hanley, and the two exchanged quips about whether Hanley might try to
do something to Ivan.
II. Hanley’s Defense
At trial, the defense conceded that Hanley killed Outin and lied about
it afterward but argued that he lacked the mental state to commit first
degree murder. The defense argued that Hanley was guilty of manslaughter,
or second degree murder at most, because his mental illness and lifetime of
physical and emotional abuse caused him to decompensate to the point that
he did not intend to kill Outin. The defense presented evidence that Hanley
has suffered many traumas from the time he was an infant and struggled
with mental health issues for many years. This evidence was presented by
percipient witnesses who had provided services to Hanley and his family, as
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well as expert witnesses who offered opinions about Hanley’s mental health
problems.
The defense focused on problems between Outin and Hanley to argue
that Outin provoked Hanley to commit murder. Three defense witnesses
were affiliated with a county mental health facility where Hanley received
services when he was 12 and 13 years old. During that period, a concern
arose that Hanley was being emotionally abused by Outin, who was perceived
as punitive, authoritarian and openly critical of Hanley. The matter was
referred to social services for consideration of an out-of-home placement, but
that recommendation was not followed.
Another component of Hanley’s defense focused on Ivan G. The defense
argued that Ivan used Hanley as a tool and exploited his desperate need for
acceptance. As support for this theory, the defense presented testimony from
two former Crossroads residents who lived at the facility with Hanley and
Ivan, Seth B. and Nancy M. Seth testified there were few rules at Crossroads
and they were not enforced. The facility was locked at night, but it was easy
to come and go. Seth recalled that Hanley was naïve and impressionable,
while Ivan was a bully who acted like he was in a gang. Ivan played pranks
and “messed” with other residents, including Hanley. Seth recounted an
incident when Ivan convinced Hanley to allow Ivan to sodomize him with a
stick by pretending it was a gang initiation. Seth also recalled that in early
2004, Hanley began playing video games obsessively. When Seth asked
Hanley about it, he said he was preparing to kill his mother. Nancy M.
testified about a statement she gave to police on April 16, 2004. Nancy could
not remember much about the incident but her recorded statement was
admitted into evidence. In that statement Nancy attempted to give Ivan an
alibi and told the police that she and Ivan were together when Hanley
15
confessed to them that he killed Outin, but Nancy’s timeline did not match
with the facts.
The defense also relied on the prosecution evidence, including
statements Hanley and Ivan made to the police. During closing argument,
defense counsel urged the jury to find that the circumstantial evidence
pointed toward innocence rather than guilt because it supported finding that
Ivan was in the house when Outin was killed and that he manipulated
Hanley and directed Hanley’s actions.
III. Jury Verdicts
The jury began deliberations on May 13, 2016. Over several days, they
requested clarification regarding the meaning of the terms “provocation,”
“deliberately,” and “conscious . . . disregard.” On May 23, the jury sent a note
stating they could not reach a verdict on first degree murder, but were close
to a verdict on second degree murder. The court responded that the jury
could consider the issues in whatever order they wished and that the court
could not accept a verdict as to second degree murder unless all of the jurors
agreed that the defendant was not guilty of first degree murder. On May 24,
the jury returned verdicts finding Hanley not guilty of first degree murder
but guilty of second degree murder. (§ 187, subd. (a).) They found true an
allegation Hanley personally used a deadly and dangerous weapon. (§ 12022,
subd. (b)(1).)
IV. Sanity Phase
On May 26, 2016, court reconvened for the sanity phase of Hanley’s
trial. Both sides elicited testimony from their respective experts. The jury
began deliberating on June 2. On the morning of June 8, the jury advised the
court they were unable to reach a unanimous verdict and a mistrial was
declared.
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A second sanity phase was postponed for reasons that are not clear
from the record. At some point, the parties stipulated to a court trial, which
began on November 30, 2018. The parties agreed that the court could
consider all evidence presented in earlier phases of the trial. They presented
additional testimony over seven court days before delivering closing
arguments on December 17. On December 18, 2018, the court found that
Hanley was sane when he committed his offense.
DISCUSSION
I. Suppression Issues
Hanley contends that all of his incriminating statements and their
“fruit” should have been suppressed because the police violated his
constitutional rights under the Fourth and Fifth Amendments. “Although
often factually overlapping, the exclusion of evidence under the Fourth and
Fifth Amendments serves different constitutional objectives.” (People v.
Jenkins (2004) 122 Cal.App.4th 1160, 1170 (Jenkins).) Evidence is excluded
under the Fourth Amendment in order to deter police misconduct while the
exclusion of evidence under the Fifth Amendment protects “ ‘the suspect’s
right against compulsory self-incrimination.’ ” (Ibid.) In the present case,
separate consideration of these distinct issues is appropriate for the
additional reason that Hanley did not make a Fourth Amendment claim in
the lower court.
“ ‘ “The scope of our review of constitutional claims of this nature is well
established. We must accept the trial court’s resolution of disputed facts and
inferences, and its evaluations of credibility, if they are substantially
supported. [Citations.] However, we must independently determine from the
undisputed facts, and those properly found by the trial court, whether the
17
challenged statement was illegally obtained.” ’ ” (Jenkins, supra, 122
Cal.App.4th at p. 1170.)
A. Additional Background
1. Hanley’s Motion
In 2008, Hanley filed a motion to suppress evidence obtained in
violation of the Fifth, Sixth and Fourteenth Amendments. He argued that
the inspectors violated his rights by: failing to deliver Miranda warnings
before initiating a custodial interrogation; employing a two-step interrogation
technique designed to elicit a confession before advising Hanley of his
Miranda rights; and engaging in coercive tactics throughout the
interrogation. Consequently, the defense sought to suppress the entire
interview conducted by Everson and Maffei, evidence seized from the storm
drain, and Hanley’s recorded conversation with Ivan G.
In 2010, the court held an evidentiary hearing on Hanley’s suppression
motion but did not issue a ruling. In March 2012, the motion was assigned to
Judge Massullo, who conducted a new evidentiary hearing. The court
admitted extensive documentary evidence and exhibits, including audio and
video recordings and transcripts covering the entire period that Hanley was
in the interview room at the Hall of Justice on April 15, 2004. Pursuant to
the parties’ stipulation, the court considered transcripts of testimony from
the following witnesses who had testified at the 2010 hearing: Officer
Morgante, Inspector Jones, Inspector Cleary, and Dr. Richard Ofshe.
Morgante: Officer Morgante transported Hanley to the Hall of Justice
at the request of Sergeant Bosch. Morgante testified that he put handcuffs
on Hanley before the transport as a safety protocol because he was alone in
the car with Hanley, and because he did not know how Hanley was involved
in the homicide investigation.
18
Jones: Inspector Jones was at the Hall of Justice when he was notified
that a person was being brought to the station in connection with a homicide.
Jones testified that he did not know if the person was a witness or a suspect.
He set up video equipment in an interview room and started running the
video before Morgante arrived with Hanley. Upon their arrival, Jones
escorted Hanley to the interview room and checked to see if he needed
anything. Jones was present when an inspector from “crime scenes” came to
take Hanley’s DNA. Jones testified that he did not put in the order to collect
Hanley’s DNA. Nor did he order a “cable query” for Hanley, but he
acknowledged that one was generated at 12:35 p.m. on April 15, 2004. A
cable query reports a person’s prior contacts with the police. Hanley’s cable
query was run at the Ingleside Station, not at the Hall of Justice.
Cleary: On the evening of April 15, 2004, Inspector Cleary assisted
with the investigation of Outin’s homicide. After Cleary was told that Hanley
had waived his Miranda rights, he drove Everson and Hanley to the storm
drain. Hanley directed them where to go. Cleary waited in the car with
Hanley, who made an unsolicited statement that he felt terrible about what
he had done to his mother. Then Cleary asked about Hanley’s clothes and
Hanley said he put them in a backpack and threw them in a garbage can.
Ofshe: Dr. Ofshe, a social psychology professor, testified as a defense
expert on the subject of influence used during police investigations. Ofshe
testified that the police made Hanley feel powerless by detaining him at the
scene, transporting him in handcuffs, taking his DNA and making him wait
to be questioned. Then, Ofshe opined, the inspectors used a psychologically
coercive interrogation technique to elicit a confession by making an offer of
leniency that induced Hanley to adopt their suggestion to act like he had a
multiple personality disorder.
19
At the 2012 evidentiary hearing, the court heard live testimony from
Officer Etcheveste, Inspector Suyehiro, Inspector Maffei, Inspector Everson
and Dr. Gregory.
Etcheveste: When Officer Etcheveste arrived at the crime scene,
Sergeant Bosch told him to stand with Hanley while Bosch and other officers
conducted a sweep of the house. Bosch did not tell Etcheveste to physically
restrain Hanley and there was no other officer in the vicinity who could
potentially have prevented Hanley from leaving. Etcheveste did not
physically restrain Hanley or order him to stay. Nor did Hanley try to get up
and leave. Etcheveste did not attempt to block Hanley from moving or take
any action that, in his experience, would have constituted a detention. He
made small talk with Hanley, but did not ask him any questions.
At the suppression hearing, Etcheveste was shown a Computer
Assisted Dispatch report (CAD), which stated that shortly after Sergeant
Bosch arrived at Outin’s house, he made a report to dispatch that he had one
person detained at the scene. Etcheveste testified that when he was at the
crime scene, Bosch did not tell him Hanley had been detained. After
Etcheveste went back to his station at Ingleside, Bosch directed him to write
in his report that Bosch had detained Hanley.
Suyehiro: Inspector Suyehiro collected DNA evidence from Hanley’s
mouth and fingertips at around 1:35 p.m. on April 15, 2004. The procedure
was recorded and a copy of the recording was admitted into evidence. Jones
accompanied Suyehiro into the room and removed Hanley’s handcuffs.
Suyehiro described the collection procedure to Hanley before taking samples.
Hanley asked a question about the oral swabs, which Suyehiro answered and
then asked if that was “okay.” Hanley answered “yeah.” After Suyehiro took
the swab samples, he asked Hanley to sign a form to indicate that he
20
voluntarily gave his DNA, telling Hanley that this would show his
“cooperation.” Hanley signed the form without expressing hesitation. At the
suppression hearing, Suyehiro testified that he collected Hanley’s DNA at the
request of Inspector Jones, and that it was collected without a court order.
Everson: When Inspectors Everson and Maffei were dispatched to the
scene of Outin’s homicide, the dispatcher did not advise them that a person
had been detained. At the scene, Sergeant Bosch pointed out Hanley, who
was sitting with Scott, and told the inspectors Hanley was the victim’s son
and the person who called 911. Bosch did not say that anybody had been
detained or arrested. When Everson went to the neighbor’s steps to talk with
Hanley, he viewed Hanley as a witness. The inspectors asked if Hanley was
willing to come to the Hall of Justice to provide a statement without exerting
pressure on him to agree. Everson asked Bosch to arrange a ride for Hanley,
but did not tell anybody to restrain Hanley, nor did he tell anybody that
Hanley had been detained or arrested.
Everson testified that Scott gave the inspectors background
information about Hanley before he left the crime scene. Initially, Everson
did not recall having this conversation, but his memory was refreshed with
Maffei’s contemporaneous notes. Scott reported that Hanley was “disabled”
and lived in a halfway house at Crossroads, and that Outin had recently gone
to Europe for about four weeks.
When Everson viewed the crime scene, his first thought was a burglary
had gone bad. But he acknowledged under cross-examination that there was
no indication that items had been stacked together as if someone was
planning to steal things, and only a few rooms were disturbed. He also
acknowledged that the circumstances he observed in the house raised the
possibility of domestic violence, which is a major contributor to homicides.
21
As part of their crime scene investigation, the inspectors interviewed
several neighbors who expressed concern about Hanley and his relationship
with Outin. Hanley was described variously as strange, inappropriate,
violent, and a troublemaker. The inspectors were told that Hanley had
emotional problems, and that he and Outin had loud fights. One neighbor
reported that when he saw police cars at the house, he assumed Hanley had
killed Outin or himself. Another neighbor, who was a close friend of Outin,
was sure Hanley did not kill his mom. But Outin’s friend was candid about
Hanley’s mental health problems and reported that he had tried to burn the
house down when he was 12 years old. This friend also reported that
Anthony D. was Hanley’s roommate at Crossroads and Hanley said he was a
“gangbanger.”
Everson testified that a cable report of Hanley’s prior police contacts
that was generated on the early afternoon of April 15 showed that Hanley
was the subject of a 2002 “Tarasoff report.” Everson was aware that a doctor
is required to make a Tarasoff report when a patient threatens to harm
someone, but he testified that he did not see Hanley’s cable report until after
Hanley’s interview. Nor was Everson aware, prior to the interview, that
Hanley was handcuffed and swabbed for DNA. An officer at the crime scene
must have ordered the DNA test but it was not Everson or Maffei. Everson
acknowledged that officers at the Hall of Justice had treated Hanley as if he
was a suspect, but he testified that he would not have treated Hanley that
way. While Everson was at the crime scene, he did not communicate with
officers at the Hall of Justice.
Everson testified that when the inspectors arrived at the Hall of Justice
at around 4:00 p.m., Hanley was waiting for them in the interview room,
alone and unrestrained. At the beginning of the interview, they did not
22
advise Hanley of his rights because at that point Hanley was not a suspect,
was not in custody, and was free to leave. During the interview, Hanley
made statements that cast suspicion on himself, which led the inspectors to
focus on Hanley’s relationship with his mother. Once Hanley admitted that
he hurt his mother, Everson advised him of his Miranda rights. Prior to that
disclosure, Everson testified, the inspectors did not have grounds to detain or
arrest Hanley.
Everson testified that he was not familiar with a two-step interview
technique police interrogators use to withhold Miranda warnings when they
are warranted. He had not received training about that tactic and never used
it himself. Everson did know about a tactic for “softening up” a suspect
before beginning an interview, but he did not use that tactic when he
interviewed Hanley. Everson testified that the inspectors never threatened
Hanley or promised him leniency.
Maffei: When Maffei arrived at the crime scene, Hanley was sitting on
the steps with his family counselor and was not restrained. Maffei asked to
speak with Hanley because he was a witness who found his mother dead in
the house. Nobody told Maffei that Hanley was detained. Maffei did not
issue any order or directive to Hanley but asked if he would come to the
station to give his statement. Maffei did not want to have that conversation
at the scene for privacy reasons and because he wanted access to recording
equipment and other resources at the Hall of Justice. After Hanley agreed to
come to the station and accepted the offer of a ride, Maffei did not tell any
officer at the scene that Hanley had been detained. Nor was Maffei aware at
the time that Hanley was transported in handcuffs or that he was swabbed
for DNA. Maffei did not instruct anyone to place Hanley under arrest,
handcuff him or restrain him in any way.
23
At the 2012 hearing, Maffei could not remember much about the
information the inspectors gathered before they interviewed Hanley. Under
cross-examination, he acknowledged knowing about Hanley’s knife collection,
which included an empty sheath, and that all of the neighbors had focused on
Hanley without identifying any other possible suspect. Maffei did not run the
cable inquiry about Hanley and did not recall when he saw it. Nor did he see
Etcheveste’s report prior to Hanley’s interview.
Maffei testified that when the interview began, he considered Hanley to
be a witness, not a suspect. In Maffei’s mind, Hanley was not under arrest or
detained and was free to leave. As the interview progressed, Hanley made
statements that led the officers to probe whether he had been involved in the
crime. Once Hanley disclosed that he hurt his mother, he was no longer free
to leave and was advised of his Miranda rights. Maffei knew about an
interview technique that involved making oneself “likeable” before
administering Miranda warnings so that a subject would feel comfortable
and free to speak, but he did not use that technique with Hanley. Nor did
Maffei ever threaten Hanley or make any promise of leniency.
Gregory: Dr. Gregory is a clinical neuropsychologist who was retained
by the defense to evaluate Hanley in 2007 and 2008. At the suppression
hearing, Gregory testified that Hanley’s mental deficits and history of
childhood trauma are well documented in his records. Gregory offered the
opinion that Hanley suffers from PTSD and that he is not malingering in
presenting with cognitive deficits. Gregory also opined that when the
inspectors interviewed Hanley in April 2004, he was experiencing symptoms
of anxiety and dissociation that caused a decline in his cognitive function and
impacted his judgment.
24
2. The Trial Court’s Rulings
On June 11, 2012, Judge Massullo denied Hanley’s suppression motion,
announcing her decision at a hearing scheduled for that purpose. In reaching
its decision, the court made the following findings:
First, Hanley was not detained at the murder scene. He was not
subject to any physical restraint when he made unsolicited comments in front
of Etcheveste. And he was still unrestrained and making voluntary choices
when he agreed to go down to the station to give the inspectors his statement
and accepted their offer of a ride.
Second, Hanley was not taken into custody at the Hall of Justice.
Crediting Morgante’s testimony, the court found that Hanley was placed in
handcuffs because of officer safety concerns, not because he was a suspect.
The court also relied on evidence that after DNA samples were taken, Hanley
was asked to sign a release form. Because this after-the-fact release was
invalid, the court suppressed the DNA evidence. However, this interaction
was an objective indication that Hanley was made aware that his cooperation
was not required.
Third, the court made an alternative finding that if Hanley was taken
into custody prior to the inspectors’ arrival at the Hall of Justice, Hanley’s
confession was not the fruit of an unlawful arrest. In addressing this issue,
the court made an initial finding that officers did not have probable cause to
arrest Hanley when they took his DNA. It went on to find, however, that
Hanley’s conduct after the DNA removal showed that he made the voluntary
choice to wait for the inspectors and give them his statement. The court
based this finding on evidence that Hanley signed the consent form after he
was told it would signify his cooperation. Moreover, he was no longer in
handcuffs and remained unrestrained in the interview room while he waited
25
for the inspectors. During that time, he slept for about an hour, and people
checked in with him, asking if he was okay, if he wanted a soda, or to use the
bathroom, or if he needed anything. Hanley never inquired about the wait,
asked to leave or made any request other than to go to the bathroom.
Escorting him to the bathroom was common practice, the court found, in light
of security issues at a police station.
Fourth, the inspectors did not employ a two-step interview strategy
designed to circumvent Miranda. The court based this finding on the
testimony of Everson and Maffei, finding both officers were credible. The
court also found that the inspectors’ activities at the crime scene and the
information they gathered prior to returning to the Hall of Justice were
consistent with their testimony that Hanley was a witness not a suspect
when the interview began. Moreover, when the inspectors arrived at the
station, they were not aware that Hanley had been handcuffed or that his
DNA was taken, so they were “simply carrying on . . . from where they left
off” by talking to Hanley as “a witness, a very important witness, about what
happened at the scene.”
Fifth, Hanley’s confession was voluntary and not coerced under the
totality of the circumstances. Suggesting that the person who killed Outin
needed help not punishment was not an offer of leniency, the court found.
Statements Hanley made prior to the Miranda warnings were far less
incriminating than statements he made afterwards. And, Hanley understood
his rights, and knew those rights even before the Miranda warnings were
given.
Finally, the storm drain evidence and Hanley’s conversation with Ivan
were not fruits of a poisonous tree. Not only was Hanley’s confession
voluntary, but he decided to go to the storm drain after he had been
26
Mirandized and booked. Nor had the defense shown that there was anything
improper about recording Hanley’s conversation with Ivan.2
B. Analysis of Fifth Amendment Issues
Hanley contends that the trial court erred by failing to suppress all
evidence of his April 15 interview because (1) his Miranda rights were
violated; (2) coercive interrogation tactics rendered his entire statement
involuntary; and (3) the court disregarded expert testimony establishing that
Hanley was coerced.
The Fifth Amendment right against self-incrimination may be invoked
to preclude the admission of involuntary pretrial confessions or other
incriminating statements made by a defendant during coercive police
interrogation. (Dickerson v. U.S. (2000) 530 U.S. 428, 433–435; Oregon v.
Elstad (1985) 470 U.S. 298, 304 (Elstad).) “A determination of the
voluntariness of a defendant’s statements must be based upon the totality of
the circumstances, including whether defendant was read and understood his
Miranda rights, defendant’s maturity, education and mental health, and any
elements of coercion in the interrogation, the length of the interrogation, and
its location.” (Jenkins, supra, 122 Cal.App.4th at p. 1171.)
1. The Miranda Violation
The first issue raised by Hanley’s Fifth Amendment claim is whether
inspectors violated his rights by failing to give him Miranda warnings at the
beginning of the April 15 interview. Unlike the trial court, we conclude that
a Miranda violation did occur.
2In 2018, Hanley sought reconsideration of his suppression motion by
Judge Chan, the trial judge in this case. Judge Chan held a hearing on the
matter and denied Hanley’s motion.
27
“In Miranda, the United States Supreme Court held that the Fifth
Amendment privilege against self-incrimination prevents the prosecution
from using ‘statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-
incrimination.’ [Citation.] The court was concerned that, without these
procedural safeguards, the ‘inherently compelling pressures’ of custodial
interrogation might induce suspects to speak where they normally would
not.” (People v. Bejasa (2012) 205 Cal.App.4th 26, 34 (Bejasa), quoting
Miranda, supra, 384 U.S. at pp. 444 & 467.)
“Because a Miranda warning is only required once custodial
interrogation begins, the defendant must necessarily have been in custody in
order to assert a violation.” (Bejasa, supra, 205 Cal.App.4th at p. 35.) Here,
the trial court found that Hanley was not in custody when inspectors began
interviewing him on the afternoon of April 15, 2004. That finding was error.
“Custody determinations are resolved by an objective standard: Would
a reasonable person interpret the restraints used by the police as tantamount
to a formal arrest? [Citations.] The totality of the circumstances
surrounding an incident must be considered as a whole.” (People v. Pilster
(2006) 138 Cal.App.4th 1395, 1403–1404, fn. omitted (Pilster).) “[W]e look at
the interplay and combined effect of all the circumstances to determine
whether on balance they created a coercive atmosphere such that a
reasonable person would have experienced a restraint tantamount to an
arrest.” (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162 (Aguilera).)
“Although no one factor is controlling, the following circumstances
should be considered: ‘(1) [W]hether the suspect has been formally arrested;
(2) absent formal arrest, the length of the detention; (3) the location; (4) the
28
ratio of officers to suspects; and (5) the demeanor of the officer, including the
nature of the questioning.’ ” (Pilster, supra, 138 Cal.App.4th at p. 1403.)
Courts also consider “whether the suspect agreed to the interview and was
informed he or she could terminate the questioning, whether police informed
the person he or she was considered a witness or suspect, whether there were
restrictions on the suspect’s freedom of movement during the interview, and
whether police officers dominated and controlled the interrogation or were
‘aggressive, confrontational, and/or accusatory.’ ” (Id. at pp. 1403–1404.)
Importantly, the views and beliefs of officers involved in the incident are
relevant only if those “ ‘views or beliefs were somehow manifested to the
individual under interrogation and would have affected how a reasonable
person in that position would perceive his or her freedom to leave.’ ” (People
v. Stansbury (1995) 9 Cal.4th 824, 830.)
Here, Hanley initiated contact with the police by calling 911.
Moreover, the record supports the trial court’s findings that Hanley was not
detained at the crime scene, that he consented to give a statement at the
station, and that he accepted the offer of a ride. But Hanley was transported
to the station in handcuffs, and when he arrived officers did not remove his
handcuffs until they took his DNA without his prior consent. Then they had
him wait in a police interrogation room for several hours without ever telling
him that he was free to leave. Considered together, these circumstances
would make a reasonable person experience restraint that was tantamount to
a detention or arrest. Thus, under the totality of the circumstances, Hanley
was in custody and entitled to a Miranda warning when the stationhouse
interview began.
Resisting our conclusion, the People contend that by the time Hanley’s
interview began, a reasonable person would have felt free to terminate the
29
police encounter. Because the Miranda inquiry turns on “the degree of
coercive restraint to which a reasonable citizen believes he is subject at the
time of questioning,” it is possible for officers to “sufficiently attenuate an
initial display of force” that was used to effectuate a temporary detention “so
that no Miranda warnings are required when questions are asked.” (People
v. Taylor (1986) 178 Cal.App.3d 217, 230, italics in initial quote omitted.)
Here, the People argue that the use of handcuffs to transport Hanley to the
Hall of Justice did not transform the consensual encounter into a custody
situation because after the cuffs were removed officers treated Hanley like a
witness who had agreed to give a statement rather than a suspect.
The trial court was persuaded by the People’s argument. Based on its
review of the interview room video, the court found that even if Hanley
experienced an initial restraint of his liberty, he was not in custody when the
inspectors began their interview because after the cuffs were removed,
“sufficient time” passed before the inspectors arrived at the station and,
during that period, Hanley was treated like a witness and not like a person
who was in custody. We disagree with this reasoning. Police investigators do
not collect DNA samples from mere witnesses. And, under these facts, the
passage of time was not a factor that would lead a reasonable person to
believe that he was no longer being restrained. After the handcuffs were
removed, Hanley was not in a public place but in an interrogation room at a
police station where nobody told him that he was free to leave. Although
Hanley was not mistreated, that factor is hardly dispositive. Hanley was
restrained with handcuffs for close to an hour, officers took DNA without his
prior consent, and then left him to wait in a police interview room for several
hours. Each of these events would be perceived reasonably as a display of
30
authority by law enforcement, and in combination they conveyed a clear
message that Hanley was not free to leave.
The People rely on In re Joseph R. (1998) 65 Cal.App.4th 954. In that
case, an officer who was investigating a complaint that two boys threw rocks
at a bus questioned a boy while standing outside the home of the boy’s friend.
(Id. at pp. 956–957.) After placing the boy in handcuffs and putting him in
the back of a patrol car for five minutes, the officer took the boy out of the car,
removed the cuffs, and questioned him about the rock throwing complaint.
(Id. at p. 957.) The boy’s acknowledgement that “ ‘it was a pretty dumb thing
for us to do’ ” was admitted into evidence at a subsequent court proceeding.
(Ibid.) Warnings and waivers required by Miranda did not apply, the court
found, because the brief detention to facilitate the officer’s investigation was
justified, the minor was released from the temporary restraint before the
officer questioned him, the minor was not told that he was under arrest or
had to answer questions, and after the brief encounter, the officer left the
scene alone. (Id. at pp. 957 & 961.)
Joseph R. does not apply to the facts of this case. Using handcuffs
while transporting Hanley may have been an appropriate safety precaution,
but the cuffs were not removed until approximately 45 minutes after Hanley
arrived at the Hall of Justice, and it appears that the reason the cuffs were
removed was so that Inspector Suyehiro could take DNA samples without
Hanley’s prior consent. Nor was this a brief encounter in a public place.
When Hanley’s handcuffs were removed, officers left him in an interview
room at a police station. And although they asked if Hanley was doing okay,
they did not do anything to indicate that he was free to leave. Courts have
found that brief handcuffing is not indicative of a formal arrest when, for
example, an “interviewing officer informed the detainee the handcuffs were
31
temporary and solely for safety purposes,” or the “officers considered the
detainee only a witness in the investigation and advised the detainee he or
she could decline to answer their questions.” (Pilster, supra, 138 Cal.App.4th
at p. 1404.) Absent such “mitigating facts” handcuffing “is a distinguishing
feature of a formal arrest.” (Id. at pp. 1404–1405.)
The People argue that circumstances pertaining to the interrogation
itself and the manner in which it was conducted support the trial court’s
finding that Hanley was not in custody during the pre-Miranda phase of the
interview. According to this argument, the inspectors treated Hanley like a
witness, the encounter was “relaxed,” the conversation “meandered,” and
there was “no confrontational questioning that would overtly telegraph that
appellant’s freedom of movement was restricted.”
The manner in which an interrogation is conducted is relevant to the
custody inquiry; courts consider whether the questioners were aggressive,
confrontational, or accusatory. (Aguilera, supra, 51 Cal.App.4th at p. 1162.)
But they also consider the length of the interrogation and whether the police
informed the person that he was free to terminate the interview and leave at
any time. (Ibid.) Here, the pre-Miranda part of the interview was long,
Hanley was never told that he was free to leave, and the officers’ patient
persistence in seeking answers when Hanley stopped responding to questions
were all objective indications that Hanley was not free to terminate the
encounter. (Compare Green v. Superior Court (1985) 40 Cal.3d 126, 131
[officer’s request that defendant accompany him to the office for an interview
included assurance that defendant could leave at “ ‘any time’ ”]; People v.
Spears (1991) 228 Cal.App.3d 1, 22 [defendant told he was free to leave “on
several occasions during the time he spent with the detectives”].)
32
Under the totality of the circumstances, Hanley was in custody when
the April 15 interview began. However, we conclude that the erroneous
admission of statements Hanley made during the pre-Miranda portion of his
interview was harmless beyond a reasonable doubt. (See People v. Thomas
(2011) 51 Cal.4th 449, 498.) During that part of the interview, Hanley
attempted to shore up his narrative that Anthony D. was the killer, a story
he first told Maria F. and then repeated to the 911 operator and to
Etcheveste. When that narrative broke down, and Hanley admitted that he
had “hurt” his mother, he was advised of his Miranda rights and waived
them. Then he provided a detailed confession with a completely different
narrative. Since statements that should have been excluded under Miranda
were largely redundant of other trial evidence and materially less
incriminating than the confession Hanley made after waiving his Miranda
rights, admission of the unwarned statements was harmless error if Hanley’s
post-Miranda statements were properly admitted.
2. Post-Miranda Statements Were Admissible
Hanley contends that his post-Miranda confession should have been
suppressed because the inspectors: (1) used an impermissible two-step
interrogation technique to deliberately circumvent Miranda; and (2) coerced
Hanley’s confession by promising him leniency.
A Miranda violation does not render inadmissible statements made
later after proper admonishments. “ ‘[A]bsent deliberately coercive or
improper tactics in obtaining the initial statement, the mere fact that a
suspect has made an unwarned admission does not warrant a presumption of
compulsion.’ ” (People v. Storm (2002) 28 Cal.4th 1007, 1030–1031 (Storm),
quoting Elstad, supra, 470 U.S. at p. 314.) When police provide Miranda
warnings in the middle of an interview, “the admissibility of any subsequent
33
statement [depends] solely on whether it is knowingly and voluntarily made.”
(Elstad, at p. 309.) Courts should assume the subsequent statement is made
knowingly and voluntarily unless the police engaged in “coercive or improper
tactics in obtaining the initial statement.” (Id. at p. 314.)
The Elstad presumption of voluntariness is undermined, however,
when a “two-step interrogation technique” is used by officers “in a calculated
way to undermine the Miranda warning.” (Missouri v. Seibert (2004) 542
U.S. 600, 622 (Seibert) (conc. opn. of Kennedy, J.).) In Seibert, an officer who
was conducting a custodial interrogation of a murder suspect elicited a
confession that the defendant intended to kill the victim, then he Mirandized
the defendant and used her unwarned statement to pressure her to make the
same confession again. (Seibert, at pp. 605–606 (plur. opn. of Souter, J.).) At
a subsequent suppression hearing, the officer testified that he “made a
‘conscious decision’ to withhold Miranda warnings” until he got the answer
he wanted and then, after warning the defendant, to “repeat the question”
until he got “ ‘the answer that she’s already provided.’ ” (Ibid.) The trial
court suppressed the defendant’s prewarning statements but admitted her
postwarning confession at a trial where she was convicted of second degree
murder. A divided Missouri Supreme Court reversed the conviction, finding
that the defendant’s postwarning confession was involuntary because it was
the product of the first unwarned confession, and “distinguish[ing] Elstad on
the ground that warnings had not intentionally been withheld there.” (Ibid.)
The United States Supreme Court affirmed, albeit without a majority
opinion.
Joined by three others, Justice Souter concluded that in all two-stage
interrogation cases, the admissibility of warned statements depends on
whether delivery of midstream Miranda warnings could reasonably be found
34
effective under the facts of the particular case. (Seibert, supra, 542 U.S. at
pp. 611–612 (plur. opn. of Souter, J.).) Justice Kennedy, concurring in the
judgment, rejected the plurality’s test as too broad, concluding instead that
the Elstad presumption of voluntariness applies to postwarning statements
unless the police used a deliberate “two-step interrogation technique . . . in a
calculated way to undermine the Miranda warning.” (Id. at pp. 621–622.)
Justice Kennedy found that the deliberate use of this tactic renders
“postwarning statements that are related to the substance of prewarning
statements [inadmissible] unless curative measures are taken before the
postwarning statement is made.” (Ibid.) “Because Justice Kennedy
‘concurred in the judgment[] on the narrowest grounds’ [citation], his
concurring opinion represents the Seibert holding.” (People v. Camino (2010)
188 Cal.App.4th 1359, 1370 (Camino); see also People v. Rios (2009) 179
Cal.App.4th 491, 504 [collecting cases]; cf. People v. Krebs (2019) 8 Cal.5th
265, 309 (Krebs) [declining to decide if plurality opinion or Justice Kennedy’s
concurrence “provides the controlling standard” when the result was the
same under either test].)
Here the trial court made an express finding that the inspectors did not
engage in a deliberate two-step interrogation process to evade the protections
of Miranda. We defer to the court’s finding as it is supported by substantial
evidence. (Camino, supra, 188 Cal.App.4th at p. 1372; People v. Delgado
(2018) 27 Cal.App.5th 1092, 1105 & 1106 (Delgado).) In contrast to Seibert,
the officers in this case testified that they did not use the tactic, nor is there
any evidence that the tactic was a department policy. (Compare Seibert,
supra, 542 U.S. at p. 606.) And, while the officer in Seibert admitted that he
delayed giving Miranda warnings when they were warranted, the inspectors
in this case testified unequivocally that they did not believe Miranda
35
warnings were required until Hanley disclosed that he hurt his mother.
While the inspectors erred in delaying reading Hanley his rights, the
Miranda violation was neither deliberate nor “calculated” as Justice
Kennedy’s concurrence would require. (Id. at pp. 621–622 (conc. opn. of
Kennedy, J.); see also Storm, supra, 28 Cal.4th at pp. 1030–1031 [exception
for “ ‘deliberately coercive or improper tactics’ ”].)
Hanley’s concern about the length of the un-Mirandized portion of his
interview is legitimate, but not dispositive. (See Krebs, supra, 8 Cal.5th at
p. 312 [“simply because an officer could have given an advisement earlier is
not enough to show that he delayed ‘in a calculated way to undermine the
Miranda warning”].) Much of the un-Mirandized interview was spent
discussing general background information and prior voluntary statements
Hanley made in an effort to divert attention to Anthony D. Importantly,
there was little overlap between the few incriminating pre-Miranda
statements and the substantive confession that Hanley made after he waived
his Miranda rights. Moreover, Hanley’s post-interview talk with his friend
Ivan provides insight that the Miranda warnings “function[ed] ‘effectively’ as
Miranda requires,” in that Hanley appeared completely unperturbed about
his post-Miranda statements. (Seibert, supra, 542 U.S. at pp. 611–612 (plur.
opn. of Souter, J.).) He told Ivan he was not “getting any lawyers” and would
just “take whatever,” but that his conscience was “clear now.” For all these
reasons, we reject Hanley’s contention that the admission of his postwarning
confession violated Seibert.
Hanley’s second argument is that his confession was involuntary
despite the waiver of his Miranda rights. “ ‘A confession is involuntary under
the federal and state guaranties of due process when it has been extracted by
any sort of threats or violence, or obtained by any direct or implied promises,
36
however slight, or by the exertion of any improper influence. [Citation.]
Coercive police activity is a necessary predicate to a finding that a confession
was involuntary under both the federal and state Constitutions.’ ” (Delgado,
supra, 27 Cal.App.5th at p. 1107.)
Hanley contends that his confession was involuntary because he was
coerced by the inspectors’ implied promise of leniency, which was conveyed
through Everson’s suggestions that Outin’s killer needed help rather than
punishment and that the inspectors wanted to help that person. When these
challenged statements are viewed in the context of the entire interview,
Hanley’s coercion claim does not withstand scrutiny. The interview tape and
transcript make clear that, to the extent Everson made a promise at all, it
was an offer to help the killer deal with his guilt by telling the truth about
what happened. Pointing out a benefit that flows naturally from a truthful
course of conduct is neither a threat nor a promise of leniency. (People v.
Vance (2010) 188 Cal.App.4th 1182, 1212 [collecting cases].)
Even if Everson’s statements could be construed as a promise of
leniency, “[a]n improper promise ‘must be causally linked’ to the defendant's
confession to warrant exclusion under the Fifth Amendment.” (People v. Wall
(2017) 3 Cal.5th 1048, 1066.) That link is not apparent here. Hanley’s
statement that he wanted the killer to receive the punishment he deserves
prompted Everson’s observation that the killer might need help instead of
punishment. Hanley appeared to consider this idea, but he did not respond
by making an incriminating disclosure. Hanley first acknowledged that he
hurt his mother during a different part of the interview, right after Maffei
suggested that a neighbor had seen Hanley outside Outin’s house. Indeed,
Hanley himself admitted to Ivan that this was the reason he confessed.
37
3. Dr. Ofshe’s Expert Opinion
Hanley contends the denial of his suppression motion must be reversed
because the trial court erred by disregarding the expert opinion of Dr. Ofshe.
As noted, the parties stipulated that the court could consider a transcript of
Ofshe’s testimony from the 2010 evidentiary hearing, which was part of the
extensive documentary evidence admitted at the hearing. According to
Hanley, the court abused its discretion by “disregarding Dr. Ofshe’s
testimony” and the court’s “failure to consider” that testimony was prejudicial
error. The record belies these claims.
One of the last issues the court addressed in its oral ruling on the
suppression motion was the defense claim that Hanley’s confession was
coerced. After summarizing the legal principles, the court stated that it had
reviewed portions of the interview relied on by the defense as well as the
testimony of both defense experts, Dr. Gregory and Dr. Ofshe. Then it found
that under the totality of the circumstances Hanley’s confession was
voluntary. The court relied on evidence suggesting that Hanley “wanted to
get the crime off his chest,” and also found that the statements the defense
construed as a promise of leniency “wasn’t a promise at all.” Then, the court
turned to evidence of Hanley’s personal qualities and considered whether his
mental health problems impaired his ability to appreciate the consequences
of what he was saying or what was happening at the time. In that context,
the court discussed the opinions of both experts, finding Dr. Gregory’s
testimony helpful and Dr. Ofshe’s opinions less so. Thus, the court did not
fail to consider Ofshe’s testimony as Hanley contends on appeal.
When discussing Ofshe’s testimony, the court was critical, “candidly”
observing that Ofshe was evasive and failed to answer simple questions
during cross-examination. With the caveat that it had only a transcript
38
rather than Ofshe’s live testimony, the court found that Ofshe was not
credible because he seemed “jaded,” and his testimony was so one-sided. On
appeal, Hanley disputes this critique, characterizing it as a prejudicial abuse
of discretion. We reject this claim, which is unsupported by citation to
relevant authority or consideration of pertinent legal principles. The
exclusion of admissible expert testimony may be reversible error (People v.
Cegers (1992) 7 Cal.App.4th 988, 1001), but no evidence was excluded here.
A trier of fact is not bound by an expert’s opinion, even if only one expert
testifies about the matter. (People v. Williams (1957) 151 Cal.App.2d 173,
187; see also § 1127b.)
C. Analysis of Fourth Amendment Claim
Hanley contends that officers violated his Fourth Amendment rights by
subjecting him to an unlawful detention at the crime scene and an unlawful
de facto arrest at the Hall of Justice.
“The Fourth Amendment of the federal Constitution requires state and
federal courts to exclude evidence obtained from unreasonable government
searches and seizures. [Citation.] Penal Code section 1538.5 allows a
defendant to move to suppress evidence obtained in an improper seizure.”
(People v. Fews (2018) 27 Cal.App.5th 553, 559.) Here, however, Hanley did
not make such a motion. Instead, he brought a motion to suppress evidence
obtained in violation of his rights under the Fifth, Sixth and Fourteenth
Amendments. In making these claims, Hanley argued he was detained at the
scene and subjected to a de facto arrest at the station, but he did not argue
that these alleged restraints on his liberty were unlawful. Therefore, Hanley
forfeited his Fourth Amendment claim. (People v. Caro (2019) 7 Cal.5th 463,
488 (Caro); People v. Miranda (1987) 44 Cal.3d 57, 80.)
39
Hanley contends his trial counsel rendered ineffective assistance by
failing to allege a Fourth Amendment violation. To prove an ineffective
assistance claim, the defendant must establish that his trial counsel’s
representation was deficient and that this deficiency caused him prejudice.
(Strickland v. Washington (1984) 466 U.S. 668, 687–692.) To carry this
burden here, Hanley must first show that trial counsel’s failure to litigate a
Fourth Amendment claim was objectively unreasonable in that it was
contrary to prevailing professional norms. (Caro, supra, 7 Cal.5th at pp. 488–
489.) “The prejudice prong of Strickland then requires the defendant to
‘prove that [the] Fourth Amendment claim is meritorious and that there is a
reasonable probability that the verdict would have been different absent the
excludable evidence.’ ” (Caro, at pp. 488–489.)
Hanley takes the view that his ineffective assistance claim proves itself
because all evidence of his guilt was subject to exclusion under the Fourth
Amendment, and thus there can be no reasonable explanation for failing to
bring this claim. This conclusory proposition does not satisfy Hanley’s
burden of proof. Nevertheless, we consider three categories of evidence that
could potentially have been excluded under the Fourth Amendment.
1. Hanley’s Statements to Etcheveste
First, Hanley intimates that statements he made in front of Etcheveste
were the product of an illegal detention. This claim fails on its merits
because Hanley was not detained at the crime scene.
“Not all interactions between law enforcement and members of the
public rise to the level of seizures implicating the Fourth Amendment.
[Citation.] For a seizure to occur, an officer must intentionally restrain an
individual’s freedom of movement either physically or through a show of
authority. [Citations.] A seizure through a show of authority occurs when a
40
reasonable person would not believe he or she is free to leave or to decline an
officer’s request. [Citation.] The reasonableness of an officer’s conduct must
be viewed in light of all the circumstances surrounding the incident.” (People
v. Bates (2013) 222 Cal.App.4th 60, 65.) “The test is ‘objective,’ not subjective;
it looks to ‘the intent of the police as objectively manifested’ to the person
confronted. [Citation.] Accordingly, an ‘officer’s uncommunicated state of
mind and the individual citizen’s subjective belief are irrelevant . . . .’ ”
(People v. Zamudio (2008) 43 Cal.4th 327, 341.)
Here, Hanley called the police to the scene of his mother’s murder,
made unsolicited statements about matters that were material to the crime,
agreed to go to the station to provide a statement that would help with the
investigation, and accepted the offer of a ride. When Hanley made each
decision, he was not subject to any physical restraint and there is no evidence
of a threat, application of force, or any other police conduct that prevented
Hanley from leaving the scene. On appeal, Hanley contends he was detained
because Etcheveste stood very near him and positioned himself in a way that
blocked Hanley from leaving. The trial court found that Hanley was not
physically restrained, blocked or otherwise prevented from leaving. These
findings are supported by testimony from Etcheveste, Everson and Maffei.
On appeal, we defer to factual findings supported substantial evidence.
(People v. Leyba (1981) 29 Cal.3d 591, 596–597.)
In his appellate brief, Hanley mentions several times that he was pat
searched by fire department personnel and intimates this intrusion was
unjustified. Hanley’s only support for this undeveloped claim is a citation to
testimony Maffei gave at the 2010 suppression hearing. According to that
testimony, a few weeks after Hanley’s confession, Maffei interviewed the fire
department officers who responded to Outin’s house and they told him that
41
they frisked Hanley because he was acting “creepy.” This evidence does not
show that an initial pat search was unlawful or that it had anything to do
with incriminating statements that Hanley later made to Etcheveste.
2. DNA Evidence
DNA samples taken from Hanley are a second type of evidence raising
Fourth Amendment concerns. As discussed, Hanley’s DNA was removed
without his prior consent under circumstances indicating that he was in
custody. Thus, the removal of Hanley’s DNA could have supported a Fourth
Amendment claim. However, the failure to bring such a claim was not
ineffective assistance of counsel on this record because Judge Massullo
excluded the DNA evidence.
3. Hanley’s Interview
For reasons we have explained, Hanley was in custody when he was
interviewed at the Hall of Justice. Because his encounter with police was no
longer consensual by the time the inspectors arrived to interview him, he was
subject to a seizure under Fourth Amendment principles. (People v. Celis
(2004) 33 Cal.4th 667, 673 (Celis).) Hanley contends that because this
seizure of his person was unjustified, all statements made during his
interview should have been suppressed. The issue on appeal is whether trial
counsel rendered ineffective assistance by failing to litigate this Fourth
Amendment claim.
“ ‘[N]ot all seizures of the person must be justified by probable cause to
arrest for a crime.’ ” (Celis, supra, 33 Cal.4th at p. 674.) “A detention is
reasonable under the Fourth Amendment when the detaining officer can
point to specific articulable facts that, considered in light of the totality of the
circumstances, provide some objective manifestation that the person detained
may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224,
42
231.) “There is no fixed time limit for establishing the constitutionality of an
investigatory detention. Rather, such a detention will be deemed
unconstitutional ‘when extended beyond what is reasonably necessary under
the circumstances that made its initiation permissible.’ ” (People v. Gomez
(2004) 117 Cal.App.4th 531, 537–538.)
Circumstances may develop that “provide reasonable suspicion to
prolong the detention.” (People v. Russell (2000) 81 Cal.App.4th 96, 102.)
But if a detention becomes overly intrusive and exceeds the boundaries of a
permissible investigative stop, it becomes a de facto arrest requiring probable
cause. (People v. Stier (2008) 168 Cal.App.4th 21, 26–27.) Probable cause
“exists when the facts known to the arresting officer would persuade someone
of ‘reasonable caution’ that the person to be arrested has committed a crime.”
(Celis, supra, 33 Cal.4th at p. 673.)
In light of these principles, competent counsel could have concluded
that after Hanley arrived at the Hall of Justice to give a consensual
interview, detaining him until the inspectors returned from the crime scene
was justified by a reasonable suspicion that Hanley was involved in his
mother’s murder. Because the record shows that Hanley was taken into
custody through the collective action of several officers, all of the officers who
participated in the investigation “constructively shared the same pool of
information under the collective knowledge doctrine.” (Cornell v. City and
County of San Francisco (2017) 17 Cal.App.5th 766, 780; see also People v.
Ramirez (1997) 59 Cal.App.4th 1548, 1555.) Thus, at the outset of Hanley’s
interview, the officers had the following pertinent information: Hanley and
Outin’s relationship was fraught; Hanley was living in a half-way house but
had parties at his mom’s house while she was away, which had angered
Outin; Outin was the victim of a violent attack that was consistent with
43
domestic violence; Hanley had mental health and behavioral problems; the
murder weapon may have been Hanley’s knife, which he kept hidden; Hanley
had made unsolicited incriminating statements about his knife collection and
about Anthony D.; and Hanley had been the subject of a Tarasoff report,
which meant he had made a credible threat of violence against someone in
the past.
Moreover, even if a Fourth Amendment violation could have been
established, it would not require suppression of Hanley’s confession absent a
causal link establishing that the confession was obtained by exploitation of
the illegal detention. (Jenkins, supra, 122 Cal.App.4th at pp. 1178–1180.)
This issue turns on “whether ‘intervening events break the causal connection
between the illegal [detention] and the [incriminating statement] so that the
[statement] is “ ‘sufficiently an act of free will to purge the primary taint.’ ” ’ ”
(People v. Boyer (1989) 48 Cal.3d 247, 268.) Here, although a reasonable
person in Hanley’s position would not have felt free to leave the Hall of
Justice, he never expressed a desire to leave, either by words or actions. Nor
did the officers actually prevent Hanley from leaving. Further, there is
strong evidence that Hanley wanted to be there and wanted to discuss his
mother’s murder with the inspectors.
In addition to these obstacles to proving that Hanley’s confession was
the product of an unlawful detention, the record suggests a tactical reason for
electing not to purse this Fourth Amendment challenge: it would potentially
undermine Hanley’s Fifth and Sixth Amendment claims. The defense, joined
by Ivan’s counsel, presented a strong argument that the police had reason to
focus on Hanley from the outset of their investigation and, by the time the
inspectors arrived at the Hall of Justice, Hanley was their prime suspect.
This theory was important to the defense in more than one way. They used it
44
to argue that Hanley’s entire interview was a custodial interrogation, to
challenge the credibility of officers who claimed that Hanley was treated as a
witness rather than a suspect, and to argue that the inspectors intentionally
violated Miranda by employing an improper two-step interrogation
technique. Under these circumstances, defense counsel may have been
concerned that bringing an additional Fourth Amendment challenge would
be counterproductive because it would highlight evidence suggesting that
Hanley was not a suspect and could not reasonably have been detained at the
outset of the interview.
Thus, competent trial counsel could have concluded that a Fourth
Amendment challenge was not only potentially inconsistent with Hanley’s
Fifth Amendment claim but would have been more difficult to prove, and
thus made a reasonable tactical decision to litigate only the Fifth
Amendment claim. Hanley has failed to carry his burden of showing that he
was denied the effective assistance of counsel.
II. Prosecutor Misconduct
Hanley contends the prosecutor engaged in “egregious” misconduct
during closing argument, which resulted in a denial of due process. “ ‘A
prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the
conviction a denial of due process. Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct
under state law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the jury.’ ” (People v.
Montes (2014) 58 Cal.4th 809, 869.)
When a misconduct claim is based on the prosecutor’s remarks to the
jury, “the defendant must show that, ‘[i]n the context of the whole argument
45
and the instructions’ [citation], there was ‘a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or
erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly
infer” that the jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.’ ” (People v. Centeno (2014) 60
Cal.4th 659, 667 (Centeno).) Generally, trial court rulings on prosecutor
misconduct are reviewed for abuse of discretion. (People v. Alvarez (1996) 14
Cal.4th 155, 213.)
A. Appealing to Passion and Prejudice
The prosecutor concluded his initial closing argument by discussing the
implications of evidence that Hanley tried not to get caught. Counsel argued
this evidence showed that Hanley knew the consequences of his conduct and
once he got caught, he tried to avoid those consequences by fooling the
inspectors. The prosecutor urged the jury not to be fooled by letting Hanley
get away with murder, stating: “He had a coverup. First Anthony [D.], then
Jake the Devil. [¶] Don’t let him get away with murder. Mr. Hanley
murdered Anne Outin in the first degree and he did it for financial gain.
[¶] Please return verdicts accordingly.” Outside the presence of the jury,
defense counsel objected that the prosecutor inflamed the passions of the
jury. The trial court stated that this remark did “not rise to that level.” So
the court noted the objection for the record but did not give an admonition.
On appeal, Hanley contends that urging the jury not to let Hanley get
away with murder was an act of “misconduct,” but he cites no authority and
provides no analysis. “ ‘A prosecutor is allowed to make vigorous arguments
and may even use such epithets as are warranted by the evidence, as long as
these arguments are not inflammatory and principally aimed at arousing the
passion or prejudice of the jury.’ ” (People v. Johnsen (2021) 10 Cal.5th 1116,
46
1179.) Here, the trial court’s finding that the prosecutor did not cross this
line was not an abuse of discretion.
B. Commenting on the Defendant’s Silence
During Hanley’s closing argument, defense counsel argued that
evidence proving that Ivan manipulated Hanley to commit the homicide could
be found in the recorded witness statements made by Hanley, Ivan G., and
Nancy M. The prosecutor disputed this claim during his rebuttal, and urged
the jury to evaluate this evidence as they would evaluate any statement by a
witness. In this context, the prosecutor made the following argument:
“With regard to the statements by Nancy [M.], Ivan [G.], and Mr.
Hanley, and all other witnesses, you’re given instruction 226. That’s the
instruction that tells you how to evaluate witnesses. [¶] We discussed this
during jury selection. You look at their demeanor. You compare their
statements against other statements. You compare these statements against
the evidence, and you determine whether you will believe some, part, all or
none of the statement. [¶] When it refers to witnesses in 226, you can take
that as Nancy, as Ivan, and as Mr. Hanley. Evaluate their statements
according to the way you would evaluate any other witness.”
Then the prosecutor immediately focused on Nancy M.; questioning
why Nancy was called as a defense witness, the prosecutor argued that
although Nancy got some facts wrong, her statement was evidence that
Hanley did intend to kill Outin.
For the first time on appeal, Hanley contends this argument by the
prosecutor violated Griffin v. California (1965) 380 U.S. 609. Griffin holds
that the Fifth and Fourteenth Amendments to the United States Constitution
“forbids either comment by the prosecution on the accused’s silence or
instructions by the court that such silence is evidence of guilt.” (Griffin, at
47
p. 615.) Hanley posits that the prosecutor violated Griffin here because he
told the jury to treat Hanley like any other witness in order to draw attention
to the fact that Hanley did not give live testimony. Hanley forfeited this
claim by failing to make a Griffin objection in the trial court.
We are not persuaded by Hanley’s rejoinder that the failure to object
was a denial of his right to the effective assistance of counsel. The decision
whether to object during opposing counsel’s arguments in a criminal trial “ ‘is
inherently tactical, and the failure to object will rarely establish ineffective
assistance.’ ” (People v. Lopez (2008) 42 Cal.4th 960, 972.) Because
competent counsel may often elect to forego even a valid objection, the
tactical decision whether to object is “ ‘not ordinarily reviewable on appeal.’ ”
(People v. Riel (2000) 22 Cal.4th 1153, 1197.) Here, competent counsel could
have concluded that there was little likelihood the jury or trial court would
interpret the prosecutor’s argument as a comment on Hanley’s decision not to
testify at trial. On the other hand, making a Griffin objection would have
risked focusing the jury’s attention on that very fact. Thus, failing to make a
Griffin objection did not constitute ineffective assistance of counsel.
C. Alluding to Punishment
At the end of his rebuttal argument, the prosecutor responded to a
closing argument by defense counsel that Hanley should be convicted only of
manslaughter because he lacked the intent to kill. The prosecutor argued
that involuntary manslaughter made no sense in this case and that it would
be more appropriate to acquit Hanley completely. In presenting this
argument, the prosecutor stated: “Do not convict him of involuntary
manslaughter. Walk him out the door. Acquit him.” Defense counsel
objected on the ground that the prosecutor’s argument referenced
punishment. This objection was sustained. Completing his argument, the
48
prosecutor argued that acquittal made more sense than involuntary
manslaughter but the evidence showed that what Hanley actually did was
commit first degree murder.
To the extent that the prosecutor’s argument can be construed as an
improper remark about punishment, the trial court sustained defense
counsel’s objection on that ground. And, although the jury was not
admonished then, it was subsequently instructed with CALCRIM No. 3550.
In delivering that instruction, the court stated: “As I said before—I will
repeat it now—you must reach your verdict without consideration of
punishment.” In light of this admonition, the prosecutor’s reference to
punishment was not prejudicial under any standard of error.
On appeal, Hanley argues that the prosecutor’s remark constituted
prejudicial misconduct because he subverted the administration of justice by
presenting the jury with an all or nothing choice to either convict Hanley of
murder or acquit him and deprive him of the mental health services he
desperately needed. Hanley forfeited this claim by not making it at trial. In
any event, Hanley fails to show that “there was ‘a reasonable likelihood the
jury understood or applied the complained-of comments in an improper or
erroneous manner.’ ” (Centeno, supra, 60 Cal.4th at p. 667.) It is not
reasonably likely the jury interpreted the prosecutor’s argument as requiring
them to either convict Hanley of murder or deprive him of mental health
services by acquitting him.
DISPOSITION
The judgment is affirmed.
49
TUCHER, J.*
WE CONCUR:
POLLAK, P. J.
BROWN, J.
People v. Hanley (A157228)
Presiding Justice of the Court of Appeal, First Appellate District,
*
Division Three, sitting by assignment pursuant to article VI, section 6 of the
California Constitution.
50