Opinion
Review Dismissed and Cause Remanded February 13, 1992.
Certified for Partial Publication
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II and III.
Previously published at 227 Cal.App.3d 602, 234 Cal.App.3d 561
James F. Johnson (under appointment by the Court of Appeal), San Francisco, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Ann K. Jensen, Laurence K. Sullivan, Deputy Attys. Gen., for plaintiff and respondent.
LOW, Presiding Justice.
We hold it was error to instruct the jury that it could consider false exculpatory statements taken from the defendant in violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, as evidence of consciousness of guilt. When Miranda-violative evidence is admitted for impeachment, but no limiting instruction is given, the court should not give CALJIC No. 2.03, instructing the jury the statements can be considered to show consciousness of guilt. We affirm because the error was harmless beyond a reasonable doubt in light of the other evidence showing consciousness of guilt.
Hans Eric Stelling was convicted of second degree murder (Pen.Code, § 187) and was found to have personally used a deadly weapon, to wit, a tennis racket (§ 12022, subd. (b)), in the beating death of Clara Leach. We affirm.
All further statutory references are to the Penal Code unless otherwise noted.
Clara Leach's body was found in Sheridan Alley near 9th Street at around midnight on the night of August 3, 1988. She had sustained numerous blows to the left side of her neck and face, fracturing her lower skull and facial bones, and collapsing her airway, resulting in aspiration of blood. A pattern impressed on the skin by at least six separate blows matched the pattern on the edge of a deformed and bloody tennis racket which police found on a nearby rooftop. She had methamphetamine in her blood. An eyewitness saw part of the beating shortly before midnight. From across 9th Street he saw someone kicking and beating another who was lying in Sheridan Alley. The assailant then picked up something which looked like a guitar case and fled down the alley. The eyewitness was unable to identify the assailant.
Nicholas Bazarini, the doorman at the Holy Cow bar on Folsom Street, testified that Stelling came into the bar at 10 or Michael Braten, doorman at the nearby Oasis bar, was given a description of a murderer who was in the area, and went to several neighboring clubs to look for the suspect. As he approached the Holy Cow he saw Stelling, who fit the description, standing in front talking to Bazarini. He heard Stelling say he had been "jumped by five Black guys" and had "beat their ass." Stelling was acting "like a tough guy," but appeared sober.
Stelling's story was also heard by Carolyn Seifert. She had come to the Holy Cow with four other women between 9 and 10 p.m. Stelling arrived, dressed in shorts and a T-shirt, carrying a red gym bag with a tennis racket attached. He asked if he could put his bag next to the women's purses on a bench, and, when they agreed, he did so. Later, one of Seifert's companions found her purse was missing; Stelling's bag was also gone. Seifert went outside, where she heard Stelling saying that he had been mugged by four or five Black men but had gotten away. Stelling appeared uninjured and sober. The purse belonging to Seifert's friend, along with the bent and bloody metal tennis racket, was found on the roof of a building on 10th Street.
The arresting officer testified Stelling did not appear intoxicated. His entire body was examined and, other than some puffiness on his hand, no wounds, cuts or abrasions were found. His blood alcohol level at 3:50 a.m. on August 4 was .06 percent, indicating a level of .08 to .14 at midnight, depending on when the alcohol was consumed.
While in jail Stelling talked with Carlos Dockery, an informant with several prior convictions for theft- and drug-related offenses. According to Dockery, Stelling said that on the night of the killing he drank six kamikazes at a bar. As he walked down Market Street he met a woman at a bus stop, and they had a few words. Dockery thought Stelling mentioned he had asked the woman for some money. Stelling said he hit the woman with a tennis racket because he was mad at his girlfriend.
Testifying in his own behalf, Stelling admitted stealing the purse and beating Leach with the racket, but claimed that she and at least one companion attacked him first while he was examining the contents of the purse in the alley. He grabbed his racket and began swinging it, after which everything was "a blur." The next thing he remembers is running down the alley holding the racket. He threw it up on a roof and went back to the bar.
The defense also presented evidence that the victim, Clara Leach, had participated in the strong-arm robbery of an intoxicated man less than a week before she was killed. Two witnesses testified that they were parked near the corner of Grove and Larkin Streets, at about 5:50 p.m. on July 29, 1988, when they saw a woman (stipulated to be Leach) and two men assault and rob a man who appeared intoxicated. They threw him to the ground and hit him on the head with a bottle, then pummeled and kicked him. Leach participated in hitting him, then reached in and took his wallet.
A defense psychiatrist testified that methamphetamine, at the level found in Leach's blood at the time of her death, could produce aggression, belligerence and paranoia. He also testified that a blood alcohol level between .08 and .14 percent, combined with a blow to the head, could produce memory loss and affect the consciousness with which actions were taken. I
On cross-examination Stelling was impeached with statements he had made to police during an interrogation, and with statements he had made to his father and girlfriend in telephone conversations covertly taped at the police station. All of these statements had been excluded, in limine, from the prosecution's case-in-chief because they had been obtained in violation of Miranda, and were admitted solely for impeachment, pursuant to People v. May (1988) 44 Cal.3d 309, 243 Cal.Rptr. 369, 748 P.2d 307. Stelling admitted he lied when he told police that he had not had his racket with him in the Holy Cow but had left it in his car. He agreed that he lied when he told the police he could not remember where he was on the evening of August 3 before he went to the Holy Cow. He had told the police he could not remember what happened after he left the Holy Cow, but he testified that he remembered walking to Sheridan Alley, going through the purse, and being attacked. He agreed that his statement to police was therefore a lie. Similarly, he had told his father and girlfriend he did not remember what happened that evening, when in fact he remembered everything except the actual killing. Finally, he told police he did not remember talking with Bazarini, the doorman; he admitted that, too, was a lie.
No jury instruction limiting the purpose for which this evidence could be considered was requested or given. Over defense objection, the court instructed the jury with CALJIC No. 2.03: "If you find that before this trial, the defendant made a willfully false or deliberately misleading statement concerning the crime for which he is now being tried, you may consider such statement as a circumstance tending to prove a consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your determination."
All CALJIC jury instructions referred to are from the fifth edition (1988).
Defense counsel objected that the instruction would tend to confuse the jury as to the proper use of the Miranda-violative statements. The prosecutor responded that the instruction should be given because it properly applied to the other false and misleading statements Stelling had made (his "five Black guys" story); the prosecutor pledged not to link CALJIC No. 2.03 to the police station statements in his argument.
A
In People v. Nudd (1974) 12 Cal.3d 204, 115 Cal.Rptr. 372, 524 P.2d 844, our Supreme Court adopted the rule and rationale of Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, allowing trustworthy statements obtained in violation of Miranda to be used for impeachment if the defendant testifies. The defendant in Nudd also contended the trial court had erred by failing to give, on its own motion, an instruction limiting the purpose for which the jury could consider the statements. The Nudd court rejected that claim: "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. [Citations.] But absent request by a party, there is no duty to give an instruction limiting the purpose for which evidence may be considered. [Citations.]" (12 Cal.3d at p. 209, 115 Cal.Rptr. 372, 524 P.2d 844.)
Nudd's adoption of the Harris rule was overruled in People v. Disbrow (1976) 16 Cal.3d 101, 113, 127 Cal.Rptr. 360, 545 P.2d 272, but Disbrow was in turn abrogated by the electorate's 1982 addition of article I, section 28, subdivision (d) to the California Constitution. (People v. May, supra, 44 Cal.3d at pp. 315-320, 243 Cal.Rptr. 369, 748 P.2d 307.) Three Court of Appeal panels have concluded that Nudd remains good law on the question of a sua sponte duty to give limiting instructions. (People v. Baker (1990) 220 Cal.App.3d 574, 579, 269 Cal.Rptr. 475; People v. Wyatt (1989) 215 Cal.App.3d 255, 258, 263 Cal.Rptr. 556; People v. Kendrick (1989) 211 Cal.App.3d 1273, 1277, fn. 8, 260 Cal.Rptr. 27.) In Baker and Wyatt, as in Nudd, the issue was limiting instructions as to Miranda- Even if the Nudd holding were not binding, we would reach the same conclusion. The Nudd court relied on the general principle, stated in cases involving a variety of types of evidence, that instructions limiting the jury's use of evidence to a particular purpose need not be given absent a request. (Nudd, supra, 12 Cal.3d at p. 209, 115 Cal.Rptr. 372, 524 P.2d 844.) That general principle remains valid whatever the precedential value of Nudd itself. (See People v. Kendrick, supra, 211 Cal.App.3d at p. 1277, 260 Cal.Rptr. 27 [collecting and describing cases].) We know of no reason it should not apply here.
If the only claim were that no limiting instruction was given, therefore, we would find no error here. But the trial court not only failed to limit the jury's consideration of the statements here, it instructed, in effect, that the statements could be considered as showing consciousness of guilt. The combination of instruction with CALJIC No. 2.03 and the lack of a limiting instruction was error.
The court did not, it is true, specifically link the Miranda-violative statements and the consciousness-of-guilt issue. That was, however, one of the main points made by the prosecutor in his cross-examination with those statements. After Stelling was impeached with several of his police station statements, there followed this exchange:
"Mr. Gordon: Q Mr. Stelling, isn't it true that you lied to the police about what happened after you left the hotel bar because you had guilty knowledge because you knew you had committed a crime, committed a murder?
"A Murder, no. [p] Petty theft, yes.
"Q So your testimony is that you lied to the police because you didn't want to be found out as far as taking this purse was concerned, No. 18, is that why?
"A That's correct.
"Q You weren't concerned at all, Mr. Stelling, about being charged with or put on trial for killing Clara Leach, you weren't concerned about that in talking to the officers?
"A At that time, no.
"Q Why not?
"A I don't know."
In argument, moreover, the prosecutor did not keep his promise to avoid linking the police station statements to consciousness of guilt. Addressing the defense claim of imperfect self-defense, the prosecutor argued that the lies Stelling told after the killing, including those at the police station, showed he knew the killing had been wrong: "To allow this defense in this case, ladies and gentlemen, you must find--you must find that the defendant had an honest belief out in that alley that his life was imperiled. [p] The man who, after the murder, runs down the alley and hides the evidence. The man who after the murder goes to the bar and starts with these cover stories. The man who after the murder has spoke [sic] with the police and has nothing to say about the true facts in that alley as he says they happened. [p] The man who doesn't tell his father, doesn't tell his girlfriend. You must say in spite of those lies, in spite of those cover-ups, in spite of hiding the evidence, I still believe he had an honest belief his life was threatened in that alley."
The effect of giving CALJIC No. 2.03, without excluding from its purview the Miranda -violative statements, was to inform the jury that it could consider those statements not only on the issue of the defendant's credibility, as intended under Harris and Nudd, but also on the issue of his guilt. Harris created a strictly limited exception to Miranda 's exclusionary rule, designed to address a single problem, false Duran v. Stagner (N.D.Cal.1985) 620 F.Supp. 803, is closely on point. The defendant's prior false exculpatory statement was introduced and used for impeachment; no limiting instruction was given, and the court instructed with CALJIC No. 2.03. The district court held the giving of the consciousness-of-guilt instruction was error: "To expressly allow the jury to consider such a statement as the one in issue here for any purpose other than credibility of the declarant goes beyond the permissible borders of the Harris holding." (Id., at p. 805.) The Attorney General argues Duran is distinguishable because in the present case there were other false or misleading statements to which the instruction properly applied. It is not apparent from the Duran opinion, however, whether or not such was also the case there. Moreover, the instruction here would, as has already been discussed, reasonably have been taken as applying to all of Stelling's false and misleading statements, including those obtained in violation of Miranda.
The court erred in giving the jury CALJIC No. 2.03 without either (1) excluding from the scope of that instruction the Miranda -violative statements, or (2) instructing the jury that those statements could be considered only on the issue of the defendant's credibility. Lacking both those qualifying measures, the consciousness-of-guilt instruction incorrectly informed the jury it could consider the statements for a purpose which is constitutionally impermissible under Harris and Nudd.
Our holding applies when a trial court admits, for impeachment only, a testifying defendant's statements obtained in violation of Miranda, but does not give an instruction limiting jury consideration of the evidence to impeachment. In that circumstance, the trial court must not instruct the jury, pursuant to CALJIC No. 2.03, that the statements can be considered as evidence of consciousness of guilt. If there is more than one statement to which CALJIC No. 2.03 could apply, and not all are Miranda -violative, the court can avoid error either by tailoring CALJIC No. 2.03 to exclude the Miranda -violative statements from its purview, or by directly instructing that those statements are to be considered only on the issue of credibility.
B
As the error was one affecting a federal constitutional right, it requires reversal unless it appears harmless beyond a reasonable doubt, that is, that there is no reasonable possibility the error materially affected the verdict. (Chapman v. California (1967) 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-828, 17 L.Ed.2d 705; Duran v. Stagner, supra, 620 F.Supp. at p. 805.)
Although he conceded the killing itself, Stelling presented evidence he had killed in self-defense, in unreasonable self-defense or in a heat of passion. There was proof that the victim had, less than a week before and only a few blocks from the scene of her death, participated in an attack on and robbery of an inebriated man. The prosecution's case for murder rested heavily on the physical evidence, which suggested an extraordinarily ferocious attack arguably inconsistent with self-defense, and on the evidence showing consciousness of guilt.
While consciousness of guilt was thus an important ingredient in the People's case, the police station statements at issue played only a minor, cumulative role in showing such consciousness. Immediately upon fleeing the scene of the killing, II-III
See footnote *, ante.
IV
The judgment is affirmed.