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Court of Appeal:
Undercover Agents Pushing Waiver of Lawyer Is Not Coercion
Opinion Says No Constitutional Violation Where Officers Posed as Inmates, Encouraged Defendant to Give Up His Right to Attorney Before Speaking With Murder Investigators
By Kimber Cooley, associate editor
Div. One of the Fourth District Court of Appeal held yesterday that a defendant’s constitutional rights were not violated by undercover agents, posing as fellow inmates, encouraging him to waive his right to an attorney during an upcoming custodial interview with police officers investigating his involvement in a murder, saying his ensuing statements that placed him at the scene of the killing were not coerced.
The decision comes by way of an unpublished opinion, authored by Justice William Dato and joined in by Presiding Justice Judith McConnell and Justice Truc T. Do. It declares that a trial judge did not err in admitting the recordings from the cell, noting that the defendant chose to treat the agents as “jailhouse lawyers” that he could use as a “sounding board” to develop a strategy to defeat murder charges.
Appealing his conviction was Michael Goehner, who was arrested and charged with first-degree murder in connection with the shooting death of Andres Martinez at a Desert Hot Springs trailer park on March 29, 2021. Martinez was standing outside a neighbor’s mobile home with two others when a man wearing all back ran by and shot at the group, killing the decedent.
Goehner was identified as a suspect after his DNA was found on two of the shell casings recovered from the trailer park, his phone was recovered on the property, and he was determined to be the registered owner of the getaway car.
He was arrested in August 2021 and immediately placed in a holding cell with four law enforcement agents posing as prisoners as part of a so-called Perkins operation, named after the 1990 U.S. Supreme Court case of Illinois v. Perkins, in which the high court held that an undercover officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response.
Key to the holding in Perkins is that the questioning by undercover agents lacks the danger of coercion inherent in a custodial interrogation by known police officers, during which a suspect may feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess.
Helpful Guise
Under the guise of wanting to help Goehner come up with a believable story, the undercover agents advised him to forgo requesting an attorney during his custodial interrogation with investigators and to claim self-defense. At one point, Goehner asked them, “I shouldn’t talk to them, should I, without a lawyer?”
The agents told him that if he invoked his right to counsel, a murder charge was sure to be filed, but he might be able to avoid jail time altogether if he gave a version of events that innocently explained his presence at the scene.
Goehner followed their advice and told detectives that the shooting was done in self-defense, accusing Martinez of participating in robbing him at gunpoint.
After prosecutors filed a criminal complaint against him, he moved to suppress his statements to the undercover officers inside the holding cell and to the detectives during his custodial interview. Riverside Superior Court Judge Bernard Schwartz denied the request, saying:
“[A]ny compulsion that the defendant felt to speak to law enforcement, either not to invoke, or to make up a version of self-defense, arose from the defendant’s own decision to follow the operatives’ suggestions rather than his will being overcome by a coercive setting where law enforcement is present.”
Following a jury trial, Schwartz sentenced him to 48 years to life in prison.
Yesterday’s opinion affirms the judgment.
No Evidence of Coercion
On appeal, Goehner argued that his statements claiming self-defense, which placed him at the scene of the crime, were coerced by the undercover agents.
Addressing that contention, Dato wrote:
“The Perkins operation lasted three-and-a-half hours….Goehner’s interactions with the agents were friendly and casual, as the agents frequently sympathized with him and his circumstance. They occasionally asked Goehner questions about the murder and what he planned to tell investigators, but at no point did they threaten or attempt to physically intimidate him.”
He added:
“The main topics of conversation during the operation were whether Goehner should talk to a lawyer first and, if he did not, what he should tell the investigators. Goehner was especially interested in the agents’ thoughts as to whether he could persuade the investigators to advise the district attorney to initially seek a lesser charge than murder.”
No Compulsive Force
Finding no compulsive force, the jurist said:
“We find no evidence of coercion. Goehner repeatedly requested the agents’ advice on whether to invoke his right to counsel and, if he did not, what he should tell the investigators….Goehner participated in friendly discussions rather than being subjected to a pressure campaign designed to overcome his will….Indeed, his own conduct belies his coercion claim….For example, Goehner repeatedly denied having committed a murder, was evasive when agents tried to elicit from him what really happened the night Martinez was killed, had not made up his mind about what he would tell investigators in the moments before he was interviewed, and thanked the agents multiple times for their advice.”
Dato continued:
“In short, nothing in the record suggests that the agents did anything that actually caused Goehner to waive his Miranda rights and claim self-defense….This is so notwithstanding that the agents took an ‘active’ role in the operation….Goehner’s statements during the Perkins operation, his post-Miranda self-defense story, and the incriminating admissions it encompassed were voluntarily made and therefore properly admitted.”
Saying that “the agents may have planted the seed for Goehner to claim self-defense,” he concluded that they did not “feed him a story” as Goehner himself offered versions of the events that minimized his culpability.
The case is People v. Goehner, D085454.
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