People v. Hogan

¶1— I concur in the result. Although I do not be lieve that the offers of police help for Hogan’s psychiatric problems amounted to an implied promise of leniency, nevertheless the repeated references to his possible mental difficulties form an essential part of the background which leads me to believe that the admitted police deception which preceded Hogan’s incriminatory statements was “of a type reasonably likely to procure an untrue statement.” (In re Walker (1974) 10 Cal.3d 764, 777-778 [112 Cal.Rptr. 177, 518 P.2d 1129].)

¶2Before explaining my reasoning, several points outlining and defining the framework of the relevant inquiry should be made.

¶3First: once the “historical” facts are reliably determined by the trial court, the question whether the deception is of the kind which invalidates a confession is one of law. (Haynes v. Washington (1963) 373 U.S. 503, 515-516 [10 L.Ed.2d 513, 521-522, 83 S.Ct. 1336]; Culombe v. Connecticut (1961) 367 U.S. 568, 602 [6 L.Ed.2d 1037, 1057, 81 S.Ct. 1860]; People v. Jimenez (1978) 21 Cal.3d 595, 609 [147 Cal. Rptr. 172, 580 P.2d 672].) Thus, I am willing to assume in favor of the trial court’s ruling that it found on substantial evidence that Officer Clendenon did not say, as Officer Orman recalled, that the girls had seen Hogan commit the homicide, but that he merely said that the girls had seen him hitting Jeremy. It does not really matter — either version was admittedly false.

¶4Second: to determine whether police deception is of the kind that is reasonably likely to trigger a false confession, one must, of course, evaluate the deception’s probable effect on a person who is, in fact, not guilty. Otherwise a false confession is a rational impossibility.

¶5*856Third: the very nature of the test assumes that there are certain deceptive practices which under certain circumstances will cause certain persons to confess falsely: thus it simply will not do to say — as one may be tempted — that there can be no lie which would cause one to make a false confession to a crime as grave as murder.

¶6Fourth: the question — what lie will trigger a false confession — cannot be answered in the abstract. A lie which may provoke nothing but a contemptuous smile on the part of a seasoned criminal may have a devastating effect on an emotionally overwrought individual, with no reservoir of psychological strengths, who has never been in serious trouble with the law.1 Thus, among many other factors, we must consider the nature of the crime, the suspect’s admitted relation to it, his personality in general, relevant character traits in particular, the nature and course of the interrogation apart from the deception — in short, the totality of circumstances.

¶7Fifth: in determining whether the deception was of the kind which was reasonably likely to trigger a false confession, we must of necessity perform a task for which we are not particularly well equipped — the determination how another person, whom we know only through the pages of an appellate record, was likely to act under certain stressful circumstances which none of us has ever experienced. Inevitably this exposes one to the charge of being a “parlor shrink.” Yet this is precisely the kind of determination which courts are constitutionally bound to make and do make in case after case involving a claim that a confession was involuntary. As the United States Supreme Court pointed out in Haynes v. Washington, supra, 373 U.S. at page 515 [10 L.Ed.2d at page 521]: “[W]e cannot escape the demands of judging or of making the difficult appraisals inherent in determining whether constitutional rights have been violated.”

¶8Sixth: since in this particular area it does matter whether the police conduct is likely to beget a false confession (cf. Rogers v. Richmond (1961) 365 U.S. 534, 543-545 [5 L.Ed.2d 760, 767-769, 81 S.Ct. 735]; People v. Ditson (1962) 57 Cal.2d 415, 437-438 [20 Cal.Rptr. 165, 369 P.2d 714]), it seems legitimate to consider just what type of confession follows the deception. Quite apart from the obvious fact that a confes*857sion which is independently verifiable is more likely to be true than one which is difficult to reconcile with established facts, it seems to me to be important whether a confession is in rational form or whether it consists of a series of emotional outbursts and explosions and — most vitally — whether it touches upon the main points to which a reliable confession would inevitably refer.

¶9These preliminaries out of the way, I am bound to conclude that the admitted deception was of such a nature as to undermine the reliability of Hogan’s confession or — more accurately — that the People have not established its validity beyond a reasonable doubt.2

¶10The tapes of Hogan’s interrogations and of his conversations with his wife Carolyn reveal him as a weak person, conscious that he has been a failure as a husband, father and provider and very much under the thumb of Carolyn, who displays incredible coolness, strength and clarity of purpose while her world is collapsing around her. In his conversations with Carolyn, Hogan appears to feel that his being arrested for murder is just one more instance of his ineffectiveness as a human being. At the same time there is nothing in his background which suggests any contact with the type of violence which he encountered in the Holland residence. If he was innocent — as we must assume — the sight of the dead Theresa with the gravely injured Adam beside her must have had a cataclysmic effect on his mind. The scene is utterly senseless, yet the very fact that he is alone and observes it suggests some kind of connection.

¶11This totally unprecedented shock is followed by his encounter with Holland, the attempted flight, his arrest, incarceration, and a series of police interrogations. The record clearly shows that during these sessions the police firmly planted in his mind the suspicion that he was “crazy.” Perhaps he was, in some fashion, responsible for the pitiful *858scene he had witnessed — a scene calculated to trigger guilt feelings in the most innocent spectator.3 These vague feelings of some kind of responsibility are then confirmed by the information that, indeed, there were witnesses of his having done something which he has no recollection of having done. Was he really crazy? Why would he have done such a thing? He had no reason to kill Theresa, hurt Adam, or hit Jeremy. Significantly, it was not until the police supplied him with a motive of sorts — the robbery of $40 — that Hogan literally exploded into admitting that he had hit Theresa and the “little baby.”

¶12I have carefully listened to the tape of the interrogation of this “confession” which, in truth, is more like a series of emotional outbursts than a coherent description of the recollection of a past event. The most remarkable aspect of it, however, is that it fails to make any reference whatever to an event which would have been uppermost in the mind of a guilty person: the murder of Jeremy. It is as if the only victims had been Theresa and Adam, the “little baby.” Nor is there any reference to Jeremy in any of Hogan’s less emotional statements which followed the third police interrogation.4 I find it impossible to believe that a person who wants to unburden his soul by confessing to a crime or crimes he has actually committed would say nothing about one of two homicides.

¶13In sum: not only were the circumstances such that the police deception was likely to provoke a false confession, but in addition the confession itself — or, rather, its shortcomings — reveal most persuasively that it was, indeed, not a reliable “product of a rational intellect and a free will.” (Blackburn v. Alabama (1960) 361 U.S. 199, 208 [4 L.Ed.2d *859242, 249, 80 S.Ct. 274]; In re Cameron (1968) 68 Cal.2d 487, 498 [67 Cal.Rptr. 529, 439 P.2d 633].) It should have been suppressed.5

¶14Newman, J., concurred.

¶20I respectfully dissent. Defendant was convicted of stabbing and bludgeoning to death Theresa Holland and her four-year-old son Jeremy, and attacking her baby, Adam, with intent to murder him. Defendant repeatedly admitted the attacks. Nevertheless, merely because the interrogating officers at one point offered to “help” defendant with any “mental problem” he might have, and because their interrogation later caused defendant to sob uncontrollably and lose his composure as he admitted his guilt, my colleagues hold that defendant’s statements were inadmissible as the product of improper promises of leniency and “psychological coercion.”

¶21Despite his admitted guilt, justice may well be frustrated by the majority’s holding because the remaining evidence against defendant is largely circumstantial. It should be understood that the majority’s determination that defendant’s statements were involuntary was expressly rejected by the trial court which heard the evidence during an extensive pretrial hearing regarding the voluntariness of defendant’s statements. (See Evid. Code, § 402, subd. (b).) Because the trial court’s determination was based on conflicting evidence, under well established principles, we “must accept the trial court’s resolution of conflicting evidence, unless the evidence ... is so improbable as to be entirely unworthy of belief. [Citations.]” (People v. Jimenez (1978) 21 Cal.3d 595, 607 [147 Cal.Rptr. 172, 580 P.2d 672].) This has been our consistent policy. (People v. Aikens (1969) 70 Cal.2d 369, 378 [74 Cal.Rptr. 882, 450 P.2d 258]; People v. Massie (1967) 66 Cal.2d 899, 914 [59 Cal.Rptr. 733, 428 P.2d 869]; People v. Huston (1943) 21 Cal.2d 690, 693 [134 P.2d 758].)

¶22*8601. Promises of Leniency

¶23Promises of lenient treatment by police officers or other persons in authority will taint admissions or confessions only if the promises were “a motivating cause” of the defendant’s statements. (People v. Johnson (1969) 70 Cal.2d 469 [74 Cal.Rptr. 889, 450 P.2d 265]; People v. Hill (1967) 66 Cal.2d 536, 548 [58 Cal.Rptr. 340, 426 P.2d 908]; People v. Brommel (1961) 56 Cal.2d 629, 632 [15 Cal.Rptr. 909, 364 P.2d 845].) As we noted in Johnson, “If there was conflicting evidence, or if the facts admit of substantially conflicting inferences, the admissibility of the confession might depend on determining what was the motivating cause. [Citation.]” (P. 478.)

¶24In the present case, the evidence regarding the motivation for defendant’s inculpatory statements was conflicting. On the one hand, both the testimony of the interrogating officers and the inferences reasonably drawn from the tape-recorded interviews with defendant indicate that he was not motivated in any way by any promises of leniency. Detective Orman testified that before defendant’s first and third interviews, the officer advised defendant that if he had a “mental problem,” the officer would try to “help” defendant by arranging treatment for him. According to Orman, no specific offers of help or treatment were discussed, and defendant showed neither interest in, nor made any response to, Orman’s offer.

¶25Moreover, the transcripts fully support the view that defendant’s confession of guilt was not a product of Orman’s prior offer of help. The recorded interview during which that confession was made is very illuminating. It reveals that defendant had calmly and consistently denied any complicity whatever in the killings until the interrogating officer first accused defendant of stealing money from Mrs. Holland and then abruptly changed topics and asked defendant to relate what he did after he entered the bedroom “and saw Theresa and the baby.” This question apparently triggered a deep emotional response, for defendant lost his composure, began to cry, and immediately thereafter admitted that “I hit the little baby. I don’t know, I don’t know, I don’t know .... I hit her.” Defendant’s further responses, interspersed with sobbing, included the statement that he “thought” he hit Mrs. Holland with a hammer, and that “I hit her, I hit her and I hit her and I hit her.”

¶26Indeed, the majority seems to acknowledge that the officer’s prior offer of help was not the motivating cause of defendant’s admissions: *861“Appellant continued to maintain innocence until the officers asked him to remember going in and seeing Theresa and the baby. This question had caused appellant, in the first interrogation conducted the day before, to lose his composure and begin sobbing. Again, the question triggered the same response from appellant. After 30 seconds of sobbing and crying and several more questions, appellant said that he had hit the little baby.” (Ante, p. 842, italics added.)

¶27In contrast, defendant told the jury that his admissions were motivated, in part at least, by the officer’s offer of medical treatment, which defendant said he assumed meant that he would spend some time in a mental institution. The trial, court was unimpressed. Yet the majority (ante, pp. 839-840) seemingly accepts this testimony at face value, without considering the real possibility that it was pure fabrication designed to fit the legal principles above described.

¶28In any event, it was the trial court’s responsibility to resolve the conflicting evidence on the question of motivation. In the present case, following a careful examination of the recorded interviews and live testimony by defendant and the interrogating officers, the trial court concluded that, although defendant may not have deliberately lied regarding his motivation, the reason he “broke down” and confessed was “the type of questions that were being asked at that time,” rather than any previous offer of medical assistance. The trial court denied on this very basis defendant’s pretrial motion to exclude his statements, and accordingly we, in our appellate review, “must accept the trial court’s resolution of conflicting evidence . ... ” (People v. Jimenez, supra,21 Cal.3d 595, 607.)

¶29The trial court was clearly in a better position than are we to decide whether an offer of help or treatment motivated defendant’s confession. That is its function. Indeed, several cases from other states uphold trial court rulings on precisely this issue. (State v. Traub (1962) 150 Conn. 169 [187 A.2d 230, 236] [prior offer of psychiatric treatment not linked to confession]; Thessen v. State (Alaska 1969) 454 P.2d 341, 346-347 [prior offer of “help” not motivating cause of waiver of Miranda rights]; Townes v. Commonwealth (1974) 214 Va. 683 [204 S.E.2d 269] [officers assured defendant that the courts would “do something” for his mental problem if he were guilty of the offense].) As expressed by the Virginia court in Townes, “The trial court was entitled to find that the statement was not made to induce and in fact did not induce defendant’s confession.” (P. 271.) Likewise, in the present case the trial *862court was entitled to find that defendant’s inculpatory statements were induced by perfectly legitimate police questioning immediately preceding those statements, rather than by earlier offers of help. The majority’s contrary conclusion ignores the conflicting evidence on this issue and erroneously usurps the trial court’s proper role in resolving such conflicts.

¶302. Psychological Coercion

¶31The majority’s alternative holding is that the officers’ interrogation techniques produced a “psychological coercion” which rendered defendant’s statements involuntary. (Ante, p. 841.) The majority purportedly relies upon “vivid evidence of the deterioration of appellant’s will to resist under the pressure of manufactured evidence of his guilt and suggestions that he committed the crimes while mentally ill.” (Id., at p. 842.) Having reviewed the record, I am persuaded that the majority seriously misinterprets it and is totally wrong. No coercion of any kind occurred here. Defendant’s statements were a product of his free and voluntary choice.

¶32First there was no “manufactured evidence.” At most (and the record is in conflict on the point), one of the officers may have told defendant that the Holland daughters saw him commit one of the homicides. Such deception is commonplace during police interrogations and does not render involuntary or inadmissible any admissions thereby produced, as long as the deception was not of a type reasonably likely to procure an untrue statement. (In re Walker (1974) 10 Cal. 3d 764, 777-778 [112 Cal.Rptr. 177, 518 P.2d 1129]; People v. Felix (1977) 72 Cal.App.3d 879, 885-886 [139 Cal.Rptr. 366] and cases cited.) The Felixcase summarizes several of our own cases involving police deceptions substantially identical to that present here, including (1) falsely telling the suspect his fingerprints were on a cash register (People v. Connelly (1925) 195 Cal. 584, 597 [234 P. 374]); (2) falsely telling the suspect there were eyewitnesses to his crime (People v. Castello (1924) 194 Cal. 595, 602 [229 P. 855]); and (3) telling the wounded suspect that he might not live and therefore should talk to police (In re Walker, supra,10 Cal. 3d 879). In all these cases, we held that the suspects’ statements were admissible because the deception was not likely to induce an innocent person to implicate himself in the crime. Similarly, as in the Castellocase, telling defendant herein that there were witnesses to his offense was not likely to induce a false confession.

¶33*863Likewise, I find no evidence, “vivid” or otherwise, which suggests a “deterioration of appellant’s will to resist” confessing. (Ante, p. 841.) Certainly, the trial court made no such finding. All that the record shows in this regard is that defendant, upon admitting the offenses, lost control of his emotions and cried during the remainder of the interview. Given the nature of his crimes, which included two bludgeon murders and a brutal attack on a helpless baby, committed by means of a sledge hammer or knife, or both, and the realization that he had been apprehended, such a reaction seems entirely understandable. Being then in custody, tears could be expected, but they most certainly do not inevitably compel the majority’s conclusion that defendant was “brainwashed” by police “coercion.” (Ante, p. 843.) Indeed, at the conclusion of the interview in question, defendant expressly confirmed that the officers had done nothing to harm or threaten him. He agreed that he had begun to cry only because he was recalling what he had done. Moreover, although defendant cried frequently during the last segment of the interview, he nevertheless managed to answer most of the officers’ questions coherently and politely (“No sir.” “Yes sir.” “I don’t know sir, I’m sorry.”) throughout the remainder of the interview.

¶34In In re Walker, supra,10 Cal. 3d 764, 777, we upheld, as voluntary, certain admissions exacted from a suspect who had been struck twice on the head with an officer’s gun butt and shot in the shoulder, and who was bleeding “badly” when questioned. We observed that neither an officer’s use of reasonable force in arresting a resisting suspect nor the accompanying injuries or pain necessarily rendered his subsequent statements involuntary. Similarly, my review of the record herein convinces me that defendant Hogan, despite his tears, was neither “brainwashed” nor “coerced” but instead voluntarily and competently admitted his complete responsibility for the two murders.

¶353. Other Errors

¶36The majority finds two other bases for reversal of the judgment, but, in my view, the asserted “errors” are so minor that only a brief discussion is needed to refute the majority’s conclusion. The majority first finds reversible error in the court’s inadvertence in allowing the jury to hear a tape recording in which defendant explained to his wife why he had declined to take a lie detector test. Defendant simply observed that, although he had originally agreed to take such a test, he now believed that “my word is good, and what if the machine messed up .... There is too many ifs in one of them .... ” This explanation afforded a per*864fectly rational, understandable reason for defendant’s refusal to take a test. No reasonable juror could have drawn any adverse inferences from defendant’s explanation. This was not reversible error.

¶37The majority likewise would reverse the judgment because the trial court allowed the jurors to view certain trial exhibits during their deliberations without first notifying counsel. With due respect, I believe that it is simply inconceivable that such “error” adversely affected any of defendant’s “substantial rights” (see People v. Knighten (1980) 105 Cal. App.3d 128, 133 [164 Cal.Rptr. 96]), for the only exhibit subject to possible objection was the foregoing tape recording disclosing defendant’s refusal to submit to a lie detector test, a matter wholly harmless under the circumstances here.

¶38I would affirm the judgment.

¶39Mosk, J., concurred. :