Friday, August 15, 2014
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S.C. Orders New Look at Conviction in Traffic Fatality of Child
Divided Court Says Evidence of Defendant’s Lack of Concern for Victims May Have Been Admissible
By KENNETH OFGANG, Staff Writer
The California Supreme Court yesterday ordered the First District Court of Appeal to reconsider a ruling that threw out the manslaughter conviction of a man charged with causing a 2007 car crash that resulted in the death of a child.
Police said Richard Tom, who did not receive Miranda warnings, never asked about the condition of the occupants of the vehicle with which his Mercedes E320 crashed in Redwood City.
A San Mateo Superior Court judge said Tom’s apparent lack of concern was relevant to the issue of recklessness, but Div. Three of the Court of Appeal said the testimony violated Tom’s Fifth Amendment rights because “post-arrest, pre-Miranda silence” cannot be used as substantive evidence of guilt.
The high court, however, said in a 4-3 decision that—in the absence of a custodial interrogation—the burden was on Tom to unambiguously invoke his right to silence. The case was sent back to the Court of Appeal to determine whether he did so, and if not, to consider issues not addressed in its March 2012 opinion.
Tom was sentenced to seven years in prison following his 2008 conviction for vehicular manslaughter with gross negligence. Prosecutors said Tom was drunk and speeding when he broadsided a vehicle making a left turn in Redwood City.
The driver of the other vehicle, Lorraine Wong, suffered a broken rib and finger, and her 8-year-old daughter, Sydney Ng, was killed. Another daughter, 10-year-old Kendall Ng, spent a week in the hospital with injuries to her forehead, arm, and neck.
Following the collision, Tom was held at the scene for more than an hour, and asked if he could walk to his home, which was less than a block away. An officer told him he could not leave, because the investigation was ongoing, and he was later placed in a patrol car for about 20 minutes before being taken to the police station.
Reconstruction Dispute
A prosecution expert on accident reconstruction testified that Tom was driving at least 67 miles per hour—in a 35 mph zone—at the time of the crash. The defense expert countered that he was going no faster than 52 miles per hour.
Jurors found him guilty of gross vehicular manslaughter, as a lesser offense of vehicular manslaughter while intoxicated. They found him not guilty of driving while impaired and driving with an excessive blood alcohol level.
Justice Martin Jenkins, writing for the Court of Appeal, said that while Tom was not under formal arrest, the circumstances of his detention were such that the failure to give Miranda warnings rendered any testimony regarding his statements, or the lack thereof, inadmissible.
During the period that he was kept at the scene, the justice wrote, “the atmosphere surrounding defendant’s detention became increasingly coercive,” so that “any reasonable person would interpret those restraints ‘as tantamount to a formal arrest.’”
But Justice Marvin Baxter, in his opinion yesterday for the Supreme Court, said an intervening opinion of the nation’s highest court, in Salinas v. Texas (2013) 133 S.Ct. 2174, supports the view that evidence of pre-Miranda silence is not always inadmissible.
Home Visit
In Salinas, police visited the defendant at his home as part of a murder investigation. He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning, which the parties agreed was noncustodial.
When asked whether his shotgun would match the shotgun shells recovered at the murder scene, Salinas “[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up,” according to testimony cited in the Supreme Court’s opinion. He did not testify at trial, but the prosecution argued that his reaction to the question about the shotgun showed consciousness of guilt.
The Supreme Court affirmed the conviction, 5-4, with Chief Justice John Roberts and Justice Anthony Kennedy joining an opinion by Justice Samuel Alito, who said the evidence was admissible because the defendant failed to invoke his right to silence. Justices Antonin Scalia and Clarence Thomas concurred, arguing that a case cited by Alito was wrongly decided, and that the evidence was admissible regardless of whether the defendant invoked the right to silence.
Baxter rejected the lower panel’s concern that allowing evidence of post-arrest silence would encourage police to delay interrogations. A suspect can avoid such a scenario by invoking the privilege, the justice said, adding”
“[T]he Court of Appeal’s assumption that a delay in interrogation is necessarily unjustified ignores the government’s interest in ensuring that questioning be conducted under circumstances that allow for proper documentation of the interview by law enforcement personnel who are trained in interrogation techniques. Indeed, the record here showed that defendant needed to be taken to the station not only to give a detailed taped statement, but also to provide a blood sample—which was required by department policy in all major injury collisions and likewise could be done only in a controlled environment….”
In any event, he added, such an incentive already exists because the Supreme Court has held that a defendant’s postarrest, pre-Miranda silence may be used as impeachment.
Chief Justice Tani Cantil-Sakauye and Justices Carol Corrigan and Ming Chin joined in the opinion.
Justice Goodwin H. Liu argued in dissent that the ruling was contrary to “commonsense expectations,” unworkable in practice, a misinterpretation of Salinas, and inconsistent with holdings of other courts.
“An arrest entails an official accusation, supported by probable cause, that the suspect has committed a crime,” Liu wrote. “Instead of today’s counterintuitive holding, I would follow the simple and sensible rule adopted by the Seventh, Ninth, and D.C. Circuits: After being placed in custody, regardless of whether Miranda warnings have been given, the fact that the suspect remained silent may not be used as evidence of guilt in the prosecution’s case-in-chief.”
Court of Appeal Justice William Rylaarsdam of the Fourth District Court of Appeal, Div. Three, one of several justices who have sat on assignment since Justice Joyce Kennard’s retirement in April, joined Liu’s opinion. Justice Kathryn M. Werdegar dissented separately, saying she agreed with Liu’s analysis, but that the high court should not have taken the case on the merits because the issue wasn’t properly preserved in the trial court.
The case is People v. Tom, 14 S.O.S. 3458.
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