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Court of Appeal, First District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Nadine FULLER, Defendant and Appellant.

No. A048888.

Decided: February 25, 1992

Charles Bush, San Francisco, for defendant and appellant, under appointment by the Court of Appeal. Daniel E. Lungren, Atty. Gen., George Williamson and John H. Sugiyama, Asst. Attys. Gen., Ronald E. Niver and Catherine A. Rivlin, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Nadine Fuller appeals after a jury conviction of voluntary manslaughter for the death of her young son.   Appellant contends that the trial court allowed the jury to hear a taped confession obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.   During a custodial interrogation shortly after her son's death, appellant stated several times that she did not want to talk about her son, though she earlier admitted to others that she killed him.   Respondent contends that appellant did not invoke her right to remain silent, but instead expressed only reluctance to face the details of her son's death.

At times, appellant gave conflicting signals on her willingness to talk.   However, appellant spoke one phrase her interrogator could not properly disregard:  “No, I don't want to talk about my baby.”   When the examining officer overcame appellant's reluctance to speak by telling appellant, “Nadine, we have to talk about your baby,” and “I have to know what happened,” the resulting confession was rendered inadmissible.

Appellant contends that such error is reversible per se, and in any event was not harmless.  Miranda error must be tested against the “harmless beyond a reasonable doubt” standard.   Appellant's prior, untainted confessions and the physical evidence of the death establish beyond a reasonable doubt that the erroneously admitted confession was harmless.   The judgment is affirmed.


There was no dispute that appellant killed her 11–year–old son.   The issues at trial concerned her state of mind at the time of the act.

On November 7, 1988, appellant visited her workplace after taking the previous week off to attend a personal improvement seminar.   Earlier that day, appellant had talked about the seminar with her sister, who described appellant as happy and very elated.   At noon, she met with a seminar employee, who testified that appellant was excited and said the seminar was the best thing that ever happened to her.   The employee also testified that appellant said she had set goals for her finances and her relationship with her son.   Appellant had a long lunch with another seminar participant, who described her as being very happy.

After these meetings, appellant went to her workplace.   At 4 p.m., appellant's employer saw her and approached to confront her about her recently discovered embezzlement from the company.1  Appellant's employer described her as looking “terrible,” “very worn out,” and as if she had been crying.   He told appellant that he had discovered her embezzlement, that he had reported it to the police, and that she was in trouble.   Appellant began crying.   Appellant then saw her son approaching and screamed to him to come with her.   Appellant left with the boy in her car.

Between 4:40 p.m. and 5:30 p.m., appellant called two of her sisters and three friends.   Three of the recipients of these calls said appellant sounded “very odd,” “extremely upset,” and was “crying uncontrollably.”   Appellant left messages or told the people she spoke with that she had learned a lot, but that it was too late.

One of the people appellant called was her boyfriend.   She sounded distressed and told him of her embezzlement.   He offered to leave his office and come to her home, but she said not to come before 7 p.m.   He then left for his apartment, arriving at 5:50 p.m., where he found a message from appellant on his telephone answering machine.   A few minutes later, appellant knocked on his door.

Appellant's boyfriend testified that she was disheveled and exhausted, her eyes puffy from crying, and that she had blood on her hands and feet.   Appellant collapsed outside his door, and he helped her into his apartment.   Once inside the apartment, appellant ran around frantically, saying repeatedly that she had killed her son and had tried to kill herself.   Appellant said she gave her son pills and strangled him, and asked several times that the police be called.   After a few minutes, her boyfriend called the police;  an officer soon arrived.

The first deputy sheriff to arrive described appellant as being extremely upset and very emotional.   Appellant was screaming that she had killed her son but could not kill herself.   Appellant said, “ ‘Oh, my God.   I killed my son.   Let me see my son.   I want my baby.’ ”   The deputy asked appellant why she thought she had killed her son;  appellant replied that she had given him pills and choked him.   A second deputy sheriff arrived, and appellant spontaneously stated many times that she was sorry about her son and that she was afraid she could not kill herself.

Meanwhile, other officers went to appellant's house.   Her son's body was found on the floor of the master bedroom.   A telephone cord was wrapped very tightly around his neck three times and knotted.   A quilted comforter covered blood stains on the bed, and there were blood stains near the bed.   The boy died by strangulation.   A notebook from appellant's seminar was tucked under his hand.   The officers also found evidence, consistent with abrasions on appellant's neck, that she had attempted to hang herself near her son's body.

At trial, the testimony of two prosecution expert witnesses produced an opinion that the boy had been given 28 to 30 tablets of a prescription drug called Vicodin, an amount that would have been lethal.   However, one of the prosecution's experts admitted there was a glaring inconsistency in the relative amounts of the two Vicodin ingredients detected that were the basis of that opinion.   A defense expert witness found that the boy had substantially lower levels of the Vicodin ingredients, which another defense expert testified was consistent with taking two Vicodin tablets.

Appellant did not testify;  the defense case consisted mainly of expert testimony.   A clinical psychologist testified for the defense that appellant had a long-standing borderline personality disorder.   The psychologist said the seminar appellant went through would particularly affect those with borderline personality disorder because the seminar is designed to get people to let go of reasoning and intellect and make big emotional displays.   The psychologist described the seminar as “a very intense[,] psychologically intense, defense-stripping program․”  The psychologist offered an opinion that appellant would not have killed her son had she not gone to the seminar and lost her psychological defenses.   The psychologist also asserted that shortly before the boy's death, appellant became unbalanced and entered “a brief psychotic reaction”—a sudden onset of psychotic symptoms.

A psychiatrist also testified for the defense.   The psychiatrist diagnosed appellant as having borderline personality disorder, “walking a tightrope between being neurotic and being psychotic.”   He testified that after the confrontation with her employer about the embezzlement, appellant became psychotic and began a brief reactive psychosis.   The psychiatrist also asserted that appellant would not have killed her son if she had not gone through the seminar.

Appellant's custodial interrogation, the tape of which was played for the jury, occurred the evening that the boy was killed and lasted approximately 40 minutes.   The deputy who took appellant to the sheriff's substation had read her the Miranda rights, including telling her that “ ‘You can decide at any time to exercise these rights ․ and not answer any questions or make any statements.’ ”   Appellant said she understood those rights and that she would talk to him.   The deputy waited with appellant for Sergeant Jeannette Prandi to arrive to conduct the interview;  appellant was still emotionally upset.

Just after 7:30 p.m., Sergeant Prandi began by asking appellant if she had ever been advised of her rights before.   Appellant said she did not know.   Sergeant Prandi repeated appellant's Miranda rights to her, including the right to decide at any time not to answer any questions or make any statements.   Although appellant repeatedly screamed, “No, no, no,” when told she was being read her rights because her son was dead, she said “Yes” when asked if she understood her rights and wanted to talk.

Sergeant Prandi began by asking appellant for simple background information about herself and her son.   When asked her son's date of birth, appellant cried and became hysterical, repeating, “No, no, no ․,” and then said, “I'm not supposed to be here.   I'm supposed to be with my baby.”   Appellant answered a few questions about the boy's father before saying, “No, no, ․ don't tell him, it's gonna break his heart too,” and lapsing into repetition of the phrase.   Sergeant Prandi continued questioning appellant:  “Nadine, could you please tell me what happened today?  [¶] [Appellant:] I'm supposed, I supposed [sic ] to die today and I [pause] [¶] [Sgt. Prandi:]  Well, tell me, tell me why.  [¶] [Appellant:]  I couldn't die.  [¶] [Sgt. Prandi:]  Tell me why.  [¶] [Appellant:]  Because I'm not happy.  [¶] [Sgt. Prandi:]  Well, tell me why you're not happy. [¶] [Appellant:]  It's because, because I, I'm in trouble financially.”

With the next few questions, appellant admitted stealing money from her employer.   Appellant said, “I owe them a lot of money because I want my baby to be happy.”   The interview continued:  “[Sgt. Prandi:]  Where does your baby go to school?  [¶] [Appellant:]  No, no [pause] (crying hysterically) No, I don't want to talk about my baby.  [¶] [Sgt. Prandi:]  Nadine, we have to talk about your baby.  [Indistinct sounds from appellant.]  [¶] [Sgt. Prandi:]  Nadine, I want to know what happened today.   Could you tell me what happened?   What happened with your baby?  [¶] [Appellant:]  No.   Please no.  [¶] [Sgt. Prandi:]  Nadine, I have to know what happened.”   Still crying loudly, appellant said she choked her son with her hands and a telephone cord because she wanted to die and wanted him with her.   Appellant said the rope broke when she tried to hang herself.

A few minutes later in the interview, when Sergeant Prandi returned to the subject of how the boy was killed, appellant again wailed that she did not want to talk about her son.   Sergeant Prandi changed the subject to appellant's activities earlier in the day.   When Sergeant Prandi got to the events leading to the boy's death, appellant said she gave the child some L–Tryptophan and two Motrin tablets to make him sleep.

Before Sergeant Prandi ended the interview when appellant began saying over and over that there was no blood on her shirt, the following exchange took place:  “[Sgt. Prandi:]  When did you know he was dead?  [¶] [Appellant:]  I was never really sure.  [¶] [Sgt. Prandi:]  Nadine, were you trying to kill him?  [Appellant's recorded answer was unclear.]  [¶] [Sgt. Prandi:]  Were you trying to kill yourself?  [¶] [Appellant:]  I really didn't mean to.2 ¶ Sgt. Prandi: Nadine, what happens when you choke someone?  [¶] [Appellant:]  You die.  [¶] [Sgt. Prandi:]  So when you choked [your son], did you know he was going to die?   I need to know yes or no.  [Appellant's response was not recorded.]”   At trial, Sergeant Prandi testified that appellant answered “Yes” to the questions about whether she was trying to kill her son and knew the child would die.

 Appellant was charged with murder for the death of her son.   The court instructed the jury on all aspects of homicide—first and second degree murder, voluntary and involuntary manslaughter.   The jury found appellant not guilty of first or second degree murder, and guilty of voluntary manslaughter.


The Miranda Error 3

For more than 200 years the Fifth Amendment to the United States Constitution has protected persons from being compelled to be witnesses against themselves in any criminal proceeding.   In Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the United States Supreme Court established the now familiar Miranda warnings as procedural safeguards to secure the privilege against self-incrimination during custodial interrogations.   The Supreme Court expressed the heart of the right to remain silent as follows:  “Once warnings have been given, the subsequent procedure is clear.   If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.   At this point he has shown that he intends to exercise his Fifth Amendment privilege;  any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.   Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.”  (Id., at pp. 473–474, 86 S.Ct. at pp. 1627–1628, fn. omitted.)   The court also stated, “Moreover, where in-custody interrogation is involved, there is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent when interrogated.”  (Id., at pp. 475–476, 86 S.Ct. at pp. 1628–1629, fn. omitted.)

In Michigan v. Mosley (1975) 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313, the Supreme Court explained:  “The critical safeguard identified [in the above quotation from Miranda ] is a person's ‘right to cut off questioning.’  [Miranda v. Arizona, supra, 384 U.S. at p. 474, 86 S.Ct. at p. 1628.]   Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation.   The requirement that law enforcement authorities must respect a person's exercise of that option counteracts the coercive pressures of the custodial setting.   We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ”  (Mosley, supra, 423 U.S. at pp. 103–104, 96 S.Ct. at pp. 326–327, fn. omitted.)

 A suspect may indicate a desire to invoke the privilege in many ways;  no particular form of words or conduct is necessary.  (People v. Randall (1970) 1 Cal.3d 948, 955, 83 Cal.Rptr. 658, 464 P.2d 114.)   The privilege can be asserted by conduct that reasonably appears inconsistent with a willingness to discuss the case freely and completely with the police at that time.  (People v. Burton (1971) 6 Cal.3d 375, 382, 99 Cal.Rptr. 1, 491 P.2d 793;  Randall, supra, 1 Cal.3d at pp. 955–956, 83 Cal.Rptr. 658, 464 P.2d 114;  People v. Porter (1990) 221 Cal.App.3d 1213, 1218, 270 Cal.Rptr. 773.)  “To strictly limit the manner in which a suspect may assert the privilege, or to demand that it be invoked with unmistakable clarity (resolving any ambiguity against the defendant) would subvert Miranda's prophylactic intent.”  (Randall, supra, 1 Cal.3d at p. 955, 83 Cal.Rptr. 658, 464 P.2d 114.)   Thus, any ambiguity as to whether a person intended to invoke his or her Miranda rights should be resolved in favor of an invocation.  (Porter, supra, 221 Cal.App.3d at pp. 1218–1219, 270 Cal.Rptr. 773.)

 Whether a defendant invoked the right to remain silent is a question of fact to be decided on the totality of the circumstances, with the defendant's words construed in context.  (People v. Hayes (1985) 38 Cal.3d 780, 784–785, 214 Cal.Rptr. 652, 699 P.2d 1259.)   Where, as here, there is no conflict in the evidence, we must undertake an independent review of the record to determine whether the right to remain silent was invoked.  (People v. Jennings (1988) 46 Cal.3d 963, 979, 251 Cal.Rptr. 278, 760 P.2d 475;  People v. Porter, supra, 221 Cal.App.3d at p. 1218, 270 Cal.Rptr. 773.)

 On this appeal, appellant challenges only the introduction into evidence of the custodial interrogation by Sergeant Prandi.   The trial court found that appellant did not invoke the right to remain silent during that interview.   Careful review of the tape recording of that interview leads us to conclude otherwise.   As could be expected, the recording presents appellant as a person in profound emotional turmoil.   A court-appointed psychiatrist testified at the suppression hearing that the recording evidenced a woman operating much of the time at the level of a demented child.   By contrast, Sergeant Prandi's tone of voice was understanding at times, or firm and commanding, as when she told appellant, “Nadine, we have to talk about your baby ․,” and “I have to know what happened.”

When appellant first cried, “No, I don't want to talk about my baby ․,” that was an unambiguous assertion of an unwillingness to discuss the case freely and completely.   Instead of ending the questioning or clarifying whether appellant wanted to end the interview,4 Sergeant Prandi stated, “Nadine, we have to talk about your baby․  Nadine, I want to know what happened today.   Could you tell me what happened?   What happened with your baby?”   Appellant pleaded with her interrogator, “No.   Please, no.”   Sergeant Prandi persisted, telling appellant, “Nadine, I have to know what happened.”   Appellant's resistance ended, and she once again began answering the questions put to her.   As Presiding Justice Lillie rhetorically obierved, “Is there more defendant must say to invoke his privilege to remain silent than ‘No’ when asked to explain or clarify or continue the conversation?”  (People v. Marshall, supra, 41 Cal.App.3d at p. 134, 115 Cal.Rptr. 821.)

Respondent suggests that Sergeant Prandi's statements “simply had the effect of bringing appellant back into focus when she began screaming, crying, and trying to avoid facing the details of her son's death.”   Respondent argues that appellant was not refusing to continue the interview, but rather was only reluctant to discuss the details of killing her child.   Thus, respondent contends that People v. Hayes, supra, 38 Cal.3d at pages 784–786, 214 Cal.Rptr. 652, 699 P.2d 1259, should control this case.

The defendant in Hayes, while in custody, admitted shooting a man during a holdup, claiming he shot in self-defense.   The interrogating officer asked the defendant how it happened, and the defendant said, “ ‘Do I gotta still tell you after I admit it?’ ”   The officer said, “ ‘Yeah,’ ” and obtained further details of the crime.  (People v. Hayes, supra, 38 Cal.3d at p. 784, fn. 2, 214 Cal.Rptr. 652, 699 P.2d 1259.)   The court held that the defendant's single, ambiguous question was not an implied assertion of the right to cut off questioning.  (Id., at pp. 785–786, 214 Cal.Rptr. 652, 699 P.2d 1259.)   The court stated it was reasonable to infer that, taken in context, the defendant's remark meant that although he was willing to confess to the crimes, he was uncomfortable about discussing the details.  (Id., at p. 786, 214 Cal.Rptr. 652, 699 P.2d 1259.)   The court also noted that unlike the defendant in People v. Marshall, supra, 41 Cal.App.3d at page 132, 115 Cal.Rptr. 821, the defendant in Hayes did not make a repeated and express refusal to continue talking.  (Hayes, supra, 38 Cal.3d at p. 785, 214 Cal.Rptr. 652, 699 P.2d 1259.)

Respondent argues that as in Hayes, appellant already had confessed, while at her boyfriend's apartment, to killing her son by choking the boy and giving him pills.   Respondent thus distinguishes Marshall, where the defendant had not confessed before invoking the privilege, asserting that here there was only an emotional reluctance to discuss the details of a horrifying crime.

However, we see more fundamental distinctions between this case and Hayes.   Appellant's earlier confessions were essentially spontaneous declarations made in the relatively nonthreatening confines of her boyfriend's living room.   Appellant does not contend on appeal that the Miranda rules applied to these prior statements.   Appellant's custodial interrogation at the sheriff's substation plainly was governed by Miranda, and it was there that appellant clearly and unequivocally expressed a desire not to discuss her child.   Appellant's protests to Sergeant Prandi were not a single, ambiguous question as in Hayes, nor were they merely a reluctance to discuss details.   Appellant expressly and repeatedly asserted that she did not want to talk about her child.   That appellant may have tried to avoid talking about her son because of her emotional turmoil did not give Sergeant Prandi license to bring her “back into focus.”   The reason for asserting the privilege to remain silent is immaterial.  (People v. Marshall, supra, 41 Cal.App.3d at p. 135, 115 Cal.Rptr. 821.)

The right to cut off questioning must be scrupulously honored.   (Michigan v. Mosley, supra, 423 U.S. at p. 104, 96 S.Ct. at p. 326.)   We know of no authority for the proposition that this right diminishes if the defendant has made a prior confession.   Appellant attempted to assert this right, but the right was not scrupulously honored;  it was countermanded.   Appellant's subsequent statements were obtained in violation of Miranda and its progeny.   The motion to suppress the remainder of the custodial interrogation should have been granted.

The Error Was Harmless

Appellant urges us to follow the decision of our colleagues in Division Two of this court, People v. Porter, surpa, 221 Cal.App.3d at pages 1220–1223, 270 Cal.Rptr. 773, that improper introduction of a confession continues to be reversible per se until the California Supreme Court says otherwise.   Respondent contends we should apply the standard mandated by the United States Supreme Court in Arizona v. Fulminante (1991) 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302.  Fulminante held that when assessing the erroneous admission of an involuntary confession, an appellate court should review the rest of the evidence to determine whether introduction of the confession was harmless beyond a reasonable doubt.  (Id., at p. ––––, 111 S.Ct. at p. 1265.)

Until recently, there was little question in California about the rule that introduction of a confession obtained in violation of Miranda is automatically prejudicial and therefore reversible per se.  (See, e.g., People v. McClary (1977) 20 Cal.3d 218, 230, 142 Cal.Rptr. 163, 571 P.2d 620;  People v. Randall, supra, 1 Cal.3d at p. 958, 83 Cal.Rptr. 658, 464 P.2d 114.)   Application of the rule was complicated by a distinction between confessions and admissions.   An improperly admitted confession—a defendant's declaration of intentional participation in a criminal act—meant automatic reversal, while erroneous introduction of an admission—a statement of facts tending to show guilt when considered with other evidence—was subject to harmless-error analysis.  (McClary, supra, at p. 230, 142 Cal.Rptr. 163, 571 P.2d 620.)   The rule is further complicated by an exception for the “rare case” where the record contained a properly admitted confession that was equally as damaging as one improperly admitted.  (See, e.g., People v. Quicke (1969) 71 Cal.2d 502, 516–517, 78 Cal.Rptr. 683, 455 P.2d 787;  People v. Jacobson (1965) 63 Cal.2d 319, 330–331, 46 Cal.Rptr. 515, 405 P.2d 555 [no undue emphasis placed on any one of the confessions].) 5

The continuing validity of these distinctions and attendant separate standards for reversal was undercut by the decision in Rose v. Clark (1986) 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460.   In Rose, the United States Supreme Court emphasized that application of a reversal per se standard is the exception, not the rule, for constitutional errors at trial.  (Id., at p. 578, 106 S.Ct. at p. 3105.)  “[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.”  (Id., at p. 579, 106 S.Ct. at p. 3106.)   Thus, even federal constitutional errors are not governed by a reversal per se standard unless the type of error “necessarily render[ed] a trial fundamentally unfair.”  (Id., at p. 577, 106 S.Ct. at p. 3105.)

In People v. Boyer (1989) 48 Cal.3d 247, 280, footnote 23, 256 Cal.Rptr. 96, 768 P.2d 610, the California Supreme Court made a point of noting Rose 's implications for the reversal per se rule for confessions:  “This California distinction [between reversal standards for confessions and admissions], never expressly divorced from federal law, is doubtful in light of Rose v. Clark [citation]․  Under [Rose 's] reasoning, if a wrongfully introduced confession is invalid only for Fourth Amendment or prophylactic Miranda reasons, harmless-error analysis may be appropriate.” 6

Two years later, the United States Supreme Court held in Arizona v. Fulminante, supra, 499 U.S. at pp. –––– – ––––, 111 S.Ct. at pp. 1263–1266, that involuntary statements or confessions render convictions subject to reversal under the harmless-error standard of Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.   Thus, California's reversal per se rule for improperly obtained confessions no longer has any basis in federal constitutional law.

In Chapman, the court stated, “Whether a conviction for crime should stand when a State has failed to accord federal constitutionally guaranteed rights is every bit as much of a federal question as what particular federal constitutional provisions themselves mean, what they guarantee, and whether they have been denied.”  (Chapman v. California, supra, 386 U.S. at p. 21, 87 S.Ct. at p. 826.)   Thus, the remedies for infractions of federally guaranteed rights are determined by the United States Supreme Court, while application of state remedies is a state question where only errors of state procedure or law are involved.  (Ibid.)  Under the “Truth–In–Evidence” provisions of Proposition 8, the California Constitution's privilege against self-incrimination does not provide a basis for exclusion of evidence separate from those required by the federal Constitution.  (Cal. Const., art. I, § 28, subd. (d);  People v. Markham (1989) 49 Cal.3d 63, 68–69, 260 Cal.Rptr. 273, 775 P.2d 1042;  People v. May (1988) 44 Cal.3d 309, 318–320, 243 Cal.Rptr. 369, 748 P.2d 307;  In re Lance W. (1985) 37 Cal.3d 873, 888–889, 210 Cal.Rptr. 631, 694 P.2d 744.)   Proposition 8 dealt with the admissibility of evidence, not the standard for reversing convictions tainted by erroneously introduced evidence.  (People v. Porter, supra, 221 Cal.App.3d at p. 1222, 270 Cal.Rptr. 773.)   Nevertheless, the absence of a separate state constitutional basis for excluding evidence necessarily undermines the foundation for a state standard for reversal more stringent than that required by the federal Constitution.

Appellant urges us to adopt Porter 's approach, which adhered to the reversal per se rule for improperly introduced confessions because the court felt constrained to follow the California Supreme Court decisions applying that rule.  (People v. Porter, supra, 221 Cal.App.3d at p. 1221, 270 Cal.Rptr. 773.)   However, the California Supreme Court has clearly stated that its decisions on reversals per se for improperly obtained confessions have never been “expressly divorced from federal law․”  (People v. Boyer, supra, 48 Cal.3d at p. 280, fn. 23, 256 Cal.Rptr. 96, 768 P.2d 610.)   Therefore, there is no independent state law basis supporting a standard for reversal different from that required by federal law.   After Arizona v. Fulminante, supra, 499 U.S. at pp. –––– – ––––, 111 S.Ct. at pp. 1263–1266, the California Supreme Court decisions interpreting federal law as requiring a reversal per se standard are in conflict with the controlling pronouncement of the United States Supreme Court.   The decision of the United States Supreme Court on this federal constitutional question is binding on us, and we are obliged to follow it.  (Chapman v. California, supra, 386 U.S. at p. 21, 87 S.Ct. at p. 826;  see also 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 779, p. 750.)

 In this case, Fulminante requires application of the Chapman test rather than a reversal per se standard.  (Arizona v. Fulminante, supra, 499 U.S. at pp. –––– – ––––, 111 S.Ct. at pp. 1263–1266.)   We must be able to declare a belief that the error was harmless beyond a reasonable doubt by determining whether respondent has met the burden of demonstrating that the introduction of the confession to Sergeant Prandi did not contribute to appellant's conviction.  (Id., at p. ––––, 111 S.Ct. at p. 1257;  Chapman v. California, supra, 386 U.S. at p. 24, 87 S.Ct. at p. 827.)

Yates v. Evatt (1991) 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 recently specified a methodology for harmless-error analysis in the context of a jury instruction containing an unlawful presumption.   The court's discussion sheds light on applying the harmless-error analysis in the context of improperly admitted confessions.   The court initially observed, “To say that an error did not ‘contribute’ to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous․  [¶] To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.”  (Id., at p. ––––, 111 S.Ct. at p. 1893, 114 L.Ed.2d at pp. 448–449.)   The court emphasized that the harmless-error test does not call for a subjective inquiry into the jurors' minds.  (Id., at p. ––––, 111 S.Ct. at p. 1893, 114 L.Ed.2d at p. 449.)

The Chapman test requires the reviewing court to consider the entire record as a whole.  (United States v. Hasting (1983) 461 U.S. 499, 509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96;  but see Yates v. Evatt, supra, 500 U.S. at p. ––––, 111 S.Ct. at p. 1894, 114 L.Ed.2d at pp. 449–450 [improper presumption instructions may require more restricted review].)   We must review the remainder of the evidence against appellant to determine whether the erroneously admitted confession was harmless beyond a reasonable doubt.   (Arizona v. Fulminante, supra, 499 U.S. at p. ––––, 111 S.Ct. at p. 1265.)

 After a careful review of the entire record, we are convinced that the improper introduction of the custodial interrogation was harmless beyond a reasonable doubt.   There is no dispute that appellant killed her child without any legal justification.   Thus, the trial concerned only appellant's state of mind.   Under the trial court's instructions to the jury, if the jury found that appellant acted with the specific intent to kill, but without malice aforethought because of a mental disease or defect, then appellant could be found guilty of voluntary manslaughter.7  The court's instructions also informed the jury that if appellant lacked the specific intent to kill, she could be found guilty of involuntary manslaughter.   The jury acquitted appellant of murder, but found her guilty of voluntary manslaughter.   Therefore, the jury necessarily found that appellant had a specific intent to kill.

The evidence that appellant had the intent to kill her son was direct, overwhelming, and inescapable.   There never was any contention that the death was accidental.   Appellant admitted both to her boyfriend and to the first officer to arrive that she had killed her son by giving him pills and choking him.   These statements were starkly corroborated by the physical evidence of the child's bloody strangulation with a tightly knotted cord and the presence of at least some amount of Vicodin in his system.

In short, by her own voluntary statements before the custodial interrogation, appellant had already convicted herself of at least voluntary manslaughter.   (See People v. Morris (1991) 53 Cal.3d 152, 203, 279 Cal.Rptr. 720, 807 P.2d 949.)   In light of appellant's acquittal of the murder charges, the tape recording of the custodial interrogation added only inconsequential details to appellant's two earlier confessions.   For the defense, the recorded evidence of appellant's profound emotional disturbance during the interrogation provided demonstrative support for the defense experts' opinions on appellant's mental disorder.   The jury's exposure to the recorded interrogation was harmless.

We are also convinced beyond a reasonable doubt that Sergeant Prandi's testimony was harmless.   Sergeant Prandi testified that appellant responded, “ ‘Yes,’ ” when asked if she tried to kill her son and if she knew that her son would die when she choked him.   The tape recording played for the jury does not corroborate Sergeant Prandi's testimony that appellant said, “ ‘Yes,’ ” when asked if she tried to kill her son, a point defense counsel stressed to the jury in a telling argument.   In any event, in light of the two prior confessions and the compelling physical evidence, Sergeant Prandi's testimony was, at most, cumulative evidence on the inevitable conclusion that appellant had the intent to kill her son.   The erroneous admission of the tape recording and Sergeant Prandi's statements was harmless beyond a reasonable doubt.  (See Milton v. Wainwright (1972) 407 U.S. 371, 377, 92 S.Ct. 2174, 2177, 33 L.Ed.2d 1.)


The judgment is affirmed.


1.   During appellant's absence, the employer learned that the company's bank account was missing $14,000 due to checks forged by appellant.   At trial, it was stipulated that appellant stole $38,000.

2.   Review of the tape recording suggests, as appellant's counsel argued to the jury, that this answer by appellant was a continuation of her response to the previous question.

3.   Initially, we dispose of the arguments related to the contention that appellant waived the Miranda issue by not renewing the objection when the taped confession was introduced at trial.   At the start of trial, a full evidentiary hearing was held on the admissibility of the interview by Sergeant Prandi.   A motion in limine will preserve an evidentiary objection for appeal if:  (1) a specific legal ground for exclusion is advanced and subsequently raised on appeal;  (2) the motion is directed to a particular, identifiable body of evidence;  and (3) the motion is made at a time before or during trial when the trial judge can determine the question in an appropriate context.  (People v. Morris (1991) 53 Cal.3d 152, 190, 279 Cal.Rptr. 720, 807 P.2d 949.)   Appellant's pretrial motion in limine to exclude the interview satisfied these requirements and preserved the issue for appeal.

4.   When a suspect's invocation of the Miranda rights is indecisive or equivocal, some courts have suggested that the police may continue talking to the suspect to clarify whether an invocation is intended.  (See, e.g., People v. Carey (1986) 183 Cal.App.3d 99, 103, 227 Cal.Rptr. 813;  People v. Russo (1983) 148 Cal.App.3d 1172, 1177, 196 Cal.Rptr. 466;  People v. Turnage (1975) 45 Cal.App.3d 201, 211, 119 Cal.Rptr. 237;  People v. Marshall (1974) 41 Cal.App.3d 129, 135, 115 Cal.Rptr. 821.)   Here, the prerequisite of indecision or equivocation is missing.

5.   The multiple confession exception continues to raise questions.   In People v. Hinds (1984) 154 Cal.App.3d 222, 201 Cal.Rptr. 104, the court said the “arcane doctrine” had no application to introduction of an involuntary confession, though the court would not speculate on whether it might apply to a Miranda violation—a further distinction that went undiscussed.  (Hinds, supra, at p. 241, fn. 4, 201 Cal.Rptr. 104 & accompanying text.)   However, that court found the exception inapplicable because the properly introduced admissions did not contain the improper confession's damaging evidence of defendant's mental state on which the prosecutor heavily relied.  (Id., at pp. 242–243, 201 Cal.Rptr. 104.)   More recently, in People v. Asay (1990) 224 Cal.App.3d 608, 273 Cal.Rptr. 737, the court applied a harmless error analysis in the multiple confession context when one confession was obtained in violation of Miranda 's rule against questioning after a request for an attorney.   However, the court did not explicitly apply the additional test of whether the confessions were equally damaging.  (Asay, supra, at p. 619, 273 Cal.Rptr. 737.)

6.   The court did not decide this question in Boyer, though, because the court found the improperly admitted statements in that case required reversal regardless of which standard was used.  (People v. Boyer, supra, 48 Cal.3d at pp. 279–280, fn. 23, 256 Cal.Rptr. 96, 768 P.2d 610 & accompanying text.)

7.   Such an instruction is no longer proper in California.   People v. Saille (1991) 54 Cal.3d 1103, 1112–1117, 2 Cal.Rptr.2d 364, 820 P.2d 588, held that an intent unlawfully to kill is equivalent to express malice, and, therefore, voluntary intoxication or mental disorder cannot reduce to voluntary manslaughter what otherwise would be murder.

CHIN, Associate Justice.

WHITE, P.J., and STRANKMAN, J.*, concur.

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