Opinion
C083046
12-14-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL KIRRI MORRIS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CR24560)
Before conducting a parole search of a car in which defendant Michael Kirri Morris had been sitting in the driver's seat, a sheriff's deputy placed defendant in handcuffs and in the back of his patrol car for officer safety. When the deputy asked if there were weapons or a gun in the car, defendant volunteered that there were bullets in the driver's side door. The deputy found six rounds of ammunition there. Only after he found the ammunition did the deputy give defendant Miranda warnings.
Miranda v. Arizona (1966) 384 U.S. 436 .
On appeal from a conviction for being a felon in possession of ammunition, defendant contends his trial counsel was ineffective because defense counsel did not move to exclude his pre- and post-Miranda statements as being a product of a custodial interrogation. We conclude defense counsel was not ineffective because defendant was not in custody when he first told the deputy there were bullets in the car. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
During the early morning hours of March 22, 2016, Amador County Deputy Sheriff Ryan Franzen was on routine patrol when he saw a car with out-of-state license plates parked at the entrance of a mobile home park. Deputy Franzen proceeded to park on the passenger side of the car and approached the driver's side of the vehicle. Inside the vehicle were defendant and two women. Defendant was in the driver's seat. Defendant told Deputy Franzen that he was on parole, and Deputy Franzen confirmed defendant's parole status.
Because the area was "very remote" and he was "outnumbered three to one," Deputy Franzen treated the situation "with a little bit of more heightened security, a little bit more caution." Before conducting a parole search of the car, he removed the occupants from the car. For safety reasons, he placed defendant in handcuffs and then sat defendant in his patrol car. In addition, he checked the two female passengers for weapons and then had them stand outside the front of his patrol car. During the encounter, Deputy Franzen stated to defendant that he was "not under arrest," "not in any trouble," and only being "detained." In addition, Deputy Franzen told defendant, "You're just going in handcuffs for my safety because I'm by myself out here." After the deputy placed defendant in his patrol car, this exchange occurred:
"[Deputy Franzen]: Weapons? There's nothing in the car.
"[Defendant]: No, not that I know of.
"[Deputy Franzen]: Okay. All right, man, hang tight.
"[Defendant]: I mean, my clothes are in there. My gun holster's in there.
"[Deputy Franzen]: Is there a gun in there?
"[Defendant]: Not, no, no we pawned it, uh.
"[Deputy Franzen]: Uh, are you sure?
"[Defendant]: Yeah, 100% positive.
"[Deputy Franzen]: Okay.
"[Defendant]: Um, uh, there's bullets in the driver side door."
Following this exchange, Deputy Franzen searched the car and found six rounds of .40-caliber, hollow-point ammunition in the inside panel of the driver's side door. The ammunition was "within inches" of where defendant had been sitting in the driver's seat. Additionally, the deputy located a nylon holster for a handgun inside a duffel bag in the trunk. After locating the ammunition, Deputy Franzen advised defendant of his Miranda rights. Defendant waived his rights and told Deputy Franzen that the ammunition had belonged to his wife's gun, but they had sold the gun at a pawnshop about six months earlier.
Defendant was charged with one count of being a felon in possession of ammunition. The information further alleged that defendant sustained one prior serious felony conviction for the purpose of the three-strikes law and a prior prison term enhancement. A jury found defendant guilty as charged. Then, in a bifurcated trial, the trial court found the enhancement allegations true. The trial court sentenced defendant to the low term of 16 months, doubled under the three-strikes law, plus one year for the prior prison term enhancement, for a total prison term of three years and eight months.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends his statements to police were obtained in violation of Miranda, but he acknowledges that he cannot raise this issue directly on appeal because his trial attorney did not move to suppress his statements. Accordingly, he contends his trial attorney was constitutionally ineffective for not making such a motion. To prevail on this argument, defendant must show that the motion to suppress would have had merit. (See People v. Wharton (1991) 53 Cal.3d 522, 576.) Defendant has not made this showing.
To establish a claim of ineffective assistance of counsel, a defendant must prove: (1) trial counsel's representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms; and (2) the deficiency resulted in prejudice to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693].) "Prejudice is shown when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Williams (1997) 16 Cal.4th 153, 215.) An ineffective assistance of counsel claim fails if the defendant makes an insufficient showing on either one of these components. (Strickland, at p. 687 .)
We assess the reasonableness of trial counsel's performance and decision-making considering all the circumstances of the case as they existed at the time of trial. (People v. Hart (1999) 20 Cal.4th 546, 624-625; Strickland v. Washington, supra, 466 U.S. at pp. 689-690 [80 L.Ed.2d at pp. 694-695].) If the record fails to show why counsel acted or failed to act as he did, the contention of ineffective assistance fails unless counsel failed to provide an explanation upon request or there could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268; People v. Pope (1979) 23 Cal.3d 412, 425.) A claim of ineffective assistance of counsel based on failure to make a motion must demonstrate not only absence of any tactical reason for the omission, but also that the motion would have been meritorious. (See People v. Mattson (1990) 50 Cal.3d 826, 876.) Counsel is not ineffective for failing to make frivolous or futile motions. (People v. Thompson (2010) 49 Cal.4th 79, 122.) Thus, the initial question presented is whether trial counsel's failure to move to suppress defendant's pre-Miranda statement to the police was objectively reasonable.
"As a prophylactic safeguard to protect a suspect's Fifth Amendment privilege against self-incrimination, the United States Supreme Court, in Miranda, required law enforcement agencies to advise a suspect, before any custodial law enforcement questioning, that 'he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.' " (People v. Martinez (2010) 47 Cal.4th 911, 947, quoting Miranda v. Arizona, supra, 384 U.S. at p. 479 .)
For Miranda to apply, " 'the suspect must be in "custody," and the questioning must meet the legal definition of "interrogation." ' " (People v. Whitfield (1996) 46 Cal.App.4th 947, 953.)
Defendant contends he "was in-custody once he was removed from the vehicle and put under the control of Deputy Franzen by being handcuffed and confined to the patrol car." Further, he argues that "[a]n objective view of the circumstances of the interrogation would lead a reasonable person to believe that he was in-custody and not free to leave." We disagree.
To ascertain whether the detainee is "in custody" for purposes of Miranda, all of the circumstances surrounding the interrogation should be considered, including the location of the interview; whether the suspect was informed that he or she was under arrest; the length of the interview; the number of officers participating; whether the officers were confrontational and/or accusatory; and whether the investigating officers used interrogation techniques to pressure the suspect. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.) The trial court must "measure these circumstances against an objective, legal standard: would a reasonable person in the suspect's position during the interrogation experience a restraint on his or her freedom of movement to the degree normally associated with a formal arrest." (Id. at p. 1161.)
As a general matter, no Miranda warnings need be given to an individual detained pursuant to a traffic stop, since the detainee is not "in custody." (Berkemer v. McCarty (1984) 468 U.S. 420, 440 [82 L.Ed.2d 317, 334-335].) "[D]etention of a motorist pursuant to a traffic stop is presumptively temporary and brief." (Id. at p. 437 .)
Here, the circumstances surrounding the encounter support the conclusion that defendant was not in custody for purposes of Miranda. Although defendant was handcuffed and placed in the back of a patrol car, "[d]etermining whether an individual's freedom of movement was curtailed . . . is simply the first step in the analysis, not the last." (Howes v. Fields (2012) 565 U.S. 499, 509 [182 L.Ed.2d 17, 28]; see also People v. Davidson (2013) 221 Cal.App.4th 966, 972 [concluding that "[h]andcuffing a suspect during an investigative detention does not automatically make it custodial interrogation for purposes of Miranda"]; Berkemer v. McCarty, supra, 468 U.S. at p. 437 [reasoning that "[f]idelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated"].) As a result, we must also determine "whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda." (Howes v. Fields, supra, at p. 509 [reasoning that " 'that the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody' "].)
Defendant told Deputy Franzen that he was on parole, and Deputy Franzen confirmed defendant's parole status. Deputy Franzen stated that because the area was "very remote" and he was "outnumbered three to one," he treated the situation "with a little bit of more heightened security, a little bit more caution." Consistent with these concerns, even though defendant was handcuffed in the back of a patrol car, Deputy Franzen clearly stated to defendant that he was not "under arrest," was only being "detained," and was being put in handcuffs for his "safety" because Deputy Franzen was the only officer at the scene. (See People v. Pilster (2006) 138 Cal.App.4th 1395, 1404 [concluding that the "brief handcuffing of a detainee would look less like a formal arrest if the interviewing officer informed the detainee the handcuffs were temporary and solely for safety purposes"].) Further, the exchange between defendant and Deputy Franzen prior to defendant's admission regarding the ammunition did not last more than a couple of minutes. There was no evidence the questions Deputy Franzen asked were hostile or accusatory. Instead, he told defendant that defendant was "not in any trouble," and he only asked whether there were any weapons or a gun in the car. (See Miranda v. Arizona, supra, 384 U.S. at p. 477 [concluding that no Miranda admonitions are required in cases of "[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process"]; see also Berkemer v. McCarty, supra, 468 U.S. at p. 439 [concluding that the "officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond"].)
Taken together, these factors support the conclusion that defendant was not in custody at the time he told the deputy there was ammunition in the car. The encounter was one in which defendant was not pressured to incriminate himself and one in which a reasonable person would understand that the handcuffing of defendant did not equate to a formal arrest. Thus, defendant was not "in custody" for the purposes of Miranda. And because he was not in custody, a motion to suppress his statements to Deputy Franzen would not have had any chance of success, and defense counsel was not deficient for failing to make such a motion.
Because defendant was not in custody, we need not reach the issues of whether defendant was subject to interrogation or whether the deputy circumvented Miranda using a two-step interrogation technique. --------
In addition, however, even if defendant was in custody for purposes of Miranda, his statement, "there's bullets in the driver side door," was entirely unsolicited and spontaneous. (See Miranda v. Arizona, supra, 384 U.S. at p. 478 [concluding that "Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today"].)
Accordingly, defendant's claim of ineffective assistance of counsel is without merit.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, J. I concur: /s/_________
Nicholson, Acting P. J. I concur in the result. /s/_________
Duarte, J.