Metropolitan News-Enterprise


Tuesday, May 5, 2020


Page 1


California Supreme Court:

Clarification May Be Sought of Possible Refusal to Talk

Majority Says That Where Law Enforcement Officer Asked an Unclear Question, It Was Permissible To Pin Down Whether a ‘No’ Answer Constituted an Invoking of the Right to Remain Silent


By a MetNews Staff Writer


A divided California Supreme Court yesterday upheld a 2003 death sentence, rejecting the view of two justices that the defendant’s confession to an uncharged murder was improperly admitted during the penalty phase because questioning by a law enforcement officer should have ceased when the suspect said “no” or “nah” when asked if he were willing to talk about the matter.

Justice Leondra Kruger wrote for the majority. Justice Goodwin Liu authored an opinion, joined in by Justice Mariano-Florentino Cuéllar, agreeing with the affirmance of the convictions of Alfred Flores III of three first degree murders, committed on separate occasions, but dissenting as to allowing the death sentence to stand.

“Today’s opinion declines to hold that ‘No’ means no…,” Liu complained.

But, Kruger declared, there was ambiguity as to what it was to which Flores was giving a negative response.

Flores, arrested on suspicion of committing the slayings of three teenage boys in San Bernardino who refused to join a gang of which he was a member, was questioned by a Lieutenant Roderick Kusch concerning a murder in Maywood. (Kruger’s opinion says Kusch was “of the Los Angeles Police Department,” an entity that would have no jurisdiction of a crime committed in the City of Maywood; Kusch was a lieutenant, later a commander, in the Los Angeles Sheriff’s Department, and is now retired.)

Kusch’s Words

Kusch is quoted as saying to Flores:

“Basically what I’d like to do is talk about the the [sic] case that we investigated that we got called out on back on November 17th, 2000. Uh I’ll tell you how we got called out on it in a minute but uh do you want to take a few minutes to talk a little bit about that?”

Kruger notes:

“The transcript records defendant’s response as ‘No,’ although in the videotape of the interview, the response sounds more like, ‘Nah.’ ”

After receiving Flores’s response, Kusch continued to explain what he wanted to discuss, and Flores proceeded to admit the slaying.

“It is true, as defendant emphasizes, that a ‘no’ response to a simple question whether the suspect wishes to speak with law enforcement generally constitutes an unambiguous invocation” of the right to remain silent, Kruger wrote. “…But here, considered in context, neither the question asked, nor the answer given was this simple—and, as is true with most questions of interpretation, context does matter.”

Sees Ambiguity

She explained:

“Here, as the trial court found, the nature of Kusch’s initial question was unclear. Kusch said he would ‘tell [defendant] how [the police] got called out on [the case] in a minute’ immediately before asking whether defendant wanted to take a few minutes to talk a little bit about that.’ (Italics added.) It was not entirely clear whether Kusch was asking defendant whether he was willing to answer questions about the Jaimes case or whether defendant wanted to talk about how ‘we got called out on it,’ or both. Because Kusch’ question was imprecise, defendant’s answer could have meant either, ‘No, I do not want to talk to you at all,’ or ‘No, I do not want to hear about how the police got called out.’ ”

The second “interpretation” was “particularly plausible,” Kruger said, in light of his mother’s involvement in the matter. She was a prostitute; the victim was Mark Jaimes, 22, customer of hers who drew Torres’s anger by not quickly enough exiting a motel room, in which his mother conducted business, after their transaction had concluded.

Suspect Was Smiling

Kruger also noted that a videotape shows that Flores was smiling before and when he answered, “naw,” observing:

“When Kusch ultimately asks whether defendant wants to ‘take a few minutes to talk a little bit about that’ defendant says a casual sounding ‘no,’ or, perhaps, ‘nah’; as he says this, defendant is still smiling and gives a short laugh. The dissonance between defendant’s seemingly bemused demeanor and his spoken response is confusing; the combined effect is murky and unclear. A reasonable officer, having just asked a badly framed question, might legitimately wonder whether this response was rooted in some misunderstanding of the officer’s intended meaning.”

A factor known to Kusch, and suggesting a willingness on the part of Flores to discuss the Maywood killing, was that the suspect, the previous day, freely discussed with a San Bernardino officer the three slayings of teenagers.

Concurring, Dissenting Opinion

Liu said in his concurring and dissenting opinion, said he found no ambiguity in Flores’s response to Kusch.

“I am unsure how an ordinary person (or even an Oxford don) could have more clearly expressed his desire to remain silent,” he remarked, expressing this concern:

“After today’s decision, ordinary people must beware: If you say ‘no’ when the police ask if you want to talk, your answer better not be too ‘casual-sounding,’ and you better not ‘smil[e]’ or ‘laugh’ or betray, in a judge’s estimation, a ‘bemused demeanor.’…

“This aspect of the court’s opinion is especially misguided because judges are not theater critics and suspects facing custodial interrogation are not method actors.”

He noted Kruger’s comment that the decision is “a narrow one, based on the particular circumstances surrounding the interrogation in this case,” and said he would like to believe that to be so, but added that “I fear it portends further erosion of Miranda rights,” elaborating:

“Under its reasoning, interrogating officers, whether unscrupulous or well intentioned, need not take ‘no’ for an answer if they can parse a suspect’s intonation, facial expression, or body language for hints of uncertainty. In cases without a videotape, courts will have little basis to reject an officer’s sworn testimony that a suspect’s refusal to talk, as indicated by the word ‘no,’ was ‘confusing,’ ‘murky,’ or ‘unclear’ in light of the suspect’s demeanor and therefore warranted further questioning to ‘clarify [the] defendant’s intent.’…We should not open the door to such ‘interpretation’…when the suspect has used clear language.”

The case is People v. Flores, 2020 S.O.S. 2133.

Victim’s Mother

The teenagers slain by Flores were Jason Van Kleef, Ricardo Torres, and Alexander Ayala. Kleef’s mother was among family members who participated in a May 9, 2019 press conference to protest Gov. Gavin Newsom’s moratorium on executions in California. The Riverside Press-Enterprise reported:

“ ‘I can’t begin to tell you what the governor has done by doing this,’ said Marilyn Van Kleef, whose 18-year-old son, Jason, was shot in the back of the head in Rialto in 2001 because he refused to join a gang.

“The morning before Newsom announced his moratorium, Van Kleef received a call from state prison officials. She hoped to hear that inmate Albert Flores was dead. Instead, she was told she had to wait longer for the execution.

“ ‘So punch me in the stomach again. Make me relive everything,’ Van Kleef said.”


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