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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Darrell DAVIS, Defendant and Appellant.

Cr. 36661.

Decided: September 16, 1980

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen.- Crim. Div., S. Clark Moore, Asst. Atty. Gen., William R. Weisman, Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent. Barney Goldstein, Long Beach, for defendant and appellant.

Following a trial by jury, appellant was found guilty, inter alia, of the first degree murder of Deborah Morgan, a child under the age of 14 years, personally committed by him during his rape of the victim. He was sentenced to state prison for the term of life without possibility of parole. On this appeal from the judgment of conviction it is contended:

1. That appellant's detention and arrest by police officers were illegal and his confession of the crime therefore inadmissible.

2. That the trial court erred in ruling otherwise that appellant's confession was admissible in that it was obtained in violation of his Miranda rights and was involuntary.

3. That there was error in allowing the preliminary examination testimony of a missing witness to be admitted in evidence.

The facts giving rise to the prosecution and which were adequately established at the trial are these.

On September 16, 1978, at about 10:30 in the morning, the dead body of Deborah Morgan, naked except for a blouse and bra pulled up around the neck, was found in Houghton Park in Long Beach. It was determined she had died in the early evening the day before from strangulation and that she had been involved in sexual activity shortly prior to death. A notebook belonging to her which contained various persons' names and telephone numbers was recovered some 300 feet away. The condition of the immediate area around the body suggested a struggle had occurred before the victim's demise.

Long Beach police began an extensive investigation involving among other things the interviewing of some 80 persons.

One of these, Elizabeth Cameron, had seen a male and female arguing in the park the evening in question and had heard the female say to him, “Get away from me, get away. You play too rough.”1

Another, Iona Ete, at the same time saw a similar altercation, between the victim and appellant, both of whom he knew, which also involved the victim's hitting appellant with some kind of object.

Each described incident occurred, according to these witnesses, about 50 feet from where Deborah's body was discovered.

With this information, Detective Collette phoned appellant on September 28 and asked if he would meet with him in Houghton Park the following afternoon.2 Appellant agreed and the appointment was kept. Because of pedestrian traffic in the park, Collette inquired whether appellant was willing to go to the police station for their interview and, again, appellant said yes. He was taken there, without handcuffs, arriving shortly before 3:00 p. m., and was advised of his rights, though Collette did not contemplate he was under arrest. When questioned, appellant admitted he had known Deborah since the summer, that he had seen her at Jordan High School on September 15 (see fn. 1) and that he had walked her through Houghton Park the same evening between 5:30 and 6:00, where they had met Iona Ete. Appellant then maintained, however, the three had gone their separate ways and denied there was any quarrel between himself and Deborah. When made a second time, these disclosures and their partial inconsistency with the other earlier accounts resulted in appellant's arrest.

Collette next offered appellant an opportunity to take a polygraph examination and appellant, after first declining, agreed. During its course, and after being further advised by the examiner respecting his rights, appellant was unresponsive. When he was asked, “Did you deliberately kill her?”, he replied, “I don't want to answer that question.” The test was thereupon terminated and appellant was returned to Collette, who was told appellant would not answer the examiner's question. Appellant was then placed in a cell.

At about 6:00 p. m., three hours after his arrival at the station, appellant was asked by Collette if he wished to have dinner. Appellant appeared sullen, but he replied, “Yes.” Collette then asked, “Do you want to tell me the truth, Michael?” Appellant answered, “Yes.” Collette inquired, “Did you kill Deborah Morgan?” and appellant nodded, yes.

Immediately thereafter appellant related a full confession respecting the rape and murder.

Appellant's detention and arrest were legal.

It is settled that:

“ ‘(C)ustody occurs if the suspect is physically deprived of his freedom of action in any significant way or is led to believe, as a reasonable person, that he is so deprived.’ (People v. Arnold, 66 Cal.2d 438, 448 (58 Cal.Rptr. 115, 426 P.2d 515) * * *.)”

(People v. Parker (1978) 85 Cal.App.3d 439, 443, 148 Cal.Rptr. 513, 515.)

and that:

“Each case must be decided on its own facts but ‘a detention occurs if the suspect is not free to leave at will-if he is kept in the officer's presence by physical restraint, threat of force, or assertion of authority.’ (In re Tony C., 21 Cal.3d 888, 895 (148 Cal.Rptr. 366, 582 P.2d 957) * * *.)”

(People v. Jones (1979) 96 Cal.App.3d 820, 158 Cal.Rptr. 415.)

The existence of either of these conditions, however, is clearly obviated when a person, whether denominated a suspect or otherwise, voluntarily permits police officers to occupy his time and neither can be in issue where such consent is present. (See People v. Herdan (1974) 42 Cal.App.3d 300, 307, fn. 9, 116 Cal.Rptr. 641; cf. Dunaway v. New York (1979) 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824.) In spite of appellant's assertion to the contrary, there was, as we have indicated, substantial evidence to support the conclusion appellant's permission had been granted. Under such circumstances the fact there was conflicting testimony on the question in the trial court is without consequence. (People v. Duck Wong (1976) 18 Cal.3d 178, 187-188, 133 Cal.Rptr. 511, 555 P.2d 297.)

Similarly, probable cause to arrest exists where there are “facts (which) would lead a man of ordinary care and prudence to believe and conscientiously to entertain an honest and strong suspicion that defendant was guilty of a crime. (People v. Terry (1970) 2 Cal.3d 362, 393 (85 Cal.Rptr. 409, 466 P.2d 961) * * * ; People v. Harris (1975) 15 Cal.3d 384, 389 (124 Cal.Rptr. 536, 540 P.2d 632) * * * .)” (People v. Brown (1979) 88 Cal.App.3d 283, 292, 151 Cal.Rptr. 749, 755.)

Here the facts were that appellant was acquainted with the victim and was with her at the approximate time of her death, under circumstances where the two were at odds to the point of having an angry exchange involving Deborah's striking her companion and admonishing him to get away from her because he played “too rough.” This, when buttressed by appellant's denial the two had argued or that Deborah had struck him was sufficient for the purpose. (See People v. Amador (1970) 8 Cal.App.3d 788, 791-792, 87 Cal.Rptr. 662.)

Appellant's confession was properly admitted into evidence.

Appellant on this point first maintains his failure to respond during the polygraph test coupled with his express refusal to say whether he killed Deborah invoked his privilege against incrimination for all further purposes and that his subsequent confession on Detective Collette's later inquiry respecting his guilt should have been suppressed. We disagree.

While it is true that interrogation must cease immediately if an accused indicates he wishes to assert the privilege (People v. Pettingill (1978) 21 Cal.3d 231, 240-241, 145 Cal.Rptr. 861, 578 P.2d 108), it is reasonable to require that his desire in this respect relates in sufficiently clear fashion to every aspect of questioning and not simply to one specific form. Here appellant was initially reluctant to undergo polygraph examination while not being theretofore at all reluctant to deal directly with the police. On the face of it, therefore, it rationally might well be concluded his objection was confined to the mode of inquiry associated with the machine testing process, rather than interrogation as such. To the extent, in any event, that his reluctance concerning the matter was thus ambiguous, it was permissible for Collette to clarify appellant's intentions. No more than this was done when he asked appellant whether he wished to tell him the truth. (See People v. Marshall (1974) 41 Cal.App.3d 129, 135, 115 Cal.Rptr. 821.)

It is likewise suggested appellant's confession was involuntary because questioning was over a prolonged period of time, because appellant had no communication with his family or friends and because the police employed subtle coercion by engaging appellant in friendly conversation as he was being taken to the police station. Appellant, as noted, spent about three hours with police and was not being interrogated the whole of that time. He did not on any occasion express a wish to speak with any third party. To the contrary, he indicated he did not want his mother to find out where he was. During his transport from the park to the station, the officers accompanying him spoke between themselves on the subject of sport and according to Collette's testimony appellant was not included in their conversation, though he did interject uninvited comments.

If it is accepted, as we think it must be, that coercion rendering a confession involuntary must be determined by a totality of circumstances showing imposition upon a rational intellect and a free will, nothing in this set of facts could render appellant's statements less than freely made. (See People v. Alfieri (1979) 95 Cal.App.3d 533, 544, 157 Cal.Rptr. 304.)

Finally, it is asserted on this point that In re Patrick W. (1980) 104 Cal.App.3d 615, 163 Cal.Rptr. 848, is authority for appellant's confession having been made in violation of his Miranda rights, since his mother had inquired by telephone concerning his presence at the station without appellant being made aware of his call. In Patrick W., however, a 13-year old had expressed reservations about whether he wished to have an attorney, based on uncertainty which he indicated would be resolved only by speaking with his parents. His confession obtained without any attempt by authorities to permit such consultation was thus held invalid.

Appellant, on the other hand, voiced no such reservation and in fact indicated he did not wish his mother to know of his situation. His reliance on the case cited is therefore misplaced.

Due diligence.

Lastly, it is contended the trial court erred in allowing the preliminary hearing testimony of Iona Ete to be introduced in evidence because no adequate showing of diligence was made in establishing his unavailability at trial. The contention is without merit.

What was shown was that Ete had left school and apparently gone to Samoa or from there to San Francisco, but that no addresses of any sort at those locations were discoverable. Other efforts to locate him included searches of school records, interviews with potential suppliers of information and examination of Probation Department and police records. In the exercise of its sound discretion, these efforts were viewed as sufficient by the trial court. Its ruling will not be disturbed by us. (See People v. Dunn (1947) 29 Cal.2d 654, 660-661, 177 P.2d 553.)

The judgment is affirmed.

As a purely legal question I agree with the affirmance of the judgment of conviction.

As a question of equity in criminal law the cause to my view constitutes a distortion of justice, in that the punishment life imprisonment without possibility of parole is grossly disproportionate to the crime committed. Simply stated, a 16-year-old high school student, who for three months had known a 13-year-old cheerleader in junior high school, choked, raped and strangled the victim in the bushes of a Long Beach park when she repulsed his advances. He was seen with the victim in the area where her body was found, was overheard quarreling with her, and, along with 80 other persons, became an object of police investigation. He voluntarily accompanied the police to the police station, where, after advice of his rights, he confessed to the murder and corroborated his confession by disclosing the contents of the victim's notebook and the location of her missing cap.

Defendant's principal legal point assumes that at the time he agreed to go to the police station he was under arrest without probable cause, and, therefore, he argues, his confession should have been suppressed. (Dunaway v. New York (1979) 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824.) The record fails to support either his assumption that the police arrested him at the time they first met him or that the police lacked probable cause to make an arrest. Arrest only occurred after defendant's initial interview at the police station, when the police concluded that his story was at variance with other information they had received. The voluntariness of a witness' agreement to accompany the police to the police station is a question of fact, which the trial court here determined adversely to defendant's contention. I find it significant that the police had already interviewed 17 or 18 other potential witnesses and/or suspects at the police station and only placed one of them under arrest. Furthermore, the police had probable cause to arrest defendant. The circumstance that defendant, the last person seen with the victim at the scene of the crime, had been observed quarreling with her, creates sufficient, rational suspicion to provide reasonable cause for his arrest. (People v. Reilly (1970) 3 Cal.3d 421, 90 Cal.Rptr. 417, 475 P.2d 649.)

But this crime, though heinous and callous, was an unplanned crime of passion. Its punishment has been blown out of proportion by two rigid rules of penal law. The first is felony murder, which classifies all homicides committed in the course of certain felonies, among them rape, as first-degree murder (Pen.Code, s 189). Under this rule any rape-murder automatically becomes first-degree murder. The second rigid rule, that of special circumstances, provides a mandatory penalty of life imprisonment without possibility of parole whenever, as charged here, (1) the murder involves rape, or (2) the murder victim is a child under the age of 14 on whom a lewd and lascivious act has been performed. (Pen.Code, s 190.2(a)(17), formerly s 190.2(c)(3), Stats. 1977, ch. 316, s 9.) Thus, rape escalates the crime of murder twice. Initially, rape is used to make the offense first-degree murder. It is then used again as a special circumstance to require punishment by life imprisonment without possibility of parole. The other special circumstance charged here, victim under 14, mandates similar heightened punishment whenever a sexual act has been committed on the murder victim. As a result of the mandatory features of these two rules, defendant, a 16-year-old without a prior record, stands under sentence of life imprisonment without possibility of parole. (People v. Superior Court (Reed) (1979) 98 Cal.App.3d 39, 159 Cal.Rptr. 310.) A law designed to redress the murder of a five-year-old child by a 40-year-old adult, has caught in its net the murder of one high school student by another during the commission of a crime of passion. (The sequence of strangulation, rape, and strangulation, to which the defendant confessed, shows little evidence of premeditation or calculation or anything other than anger and panic.)

In such cases what can be done?

For the past two decades the courts have solved similar problems by creating what Jeremy Bentham called legal quibbles, devices of technical procedure designed to apply to a particular cause in order to relieve the harshness of a particular result. But in practice the creation of these quibbles has resulted in miscarriages of justice of the opposite variety, those in which guilty defendants take full advantage of the new procedural technicality to escape all punishment. (Bentham, Rationale of Judicial Evidence (Works, vol. VII, Bowring ed., Edinburgh, 1843), p. 453.)

The solution to such cases lies not in distortion of law but in executive clemency. Executive clemency operates outside the letter of the law, and it can apply equitable considerations to hard cases without making bad law for cases to which the full rigor of the law should apply. Unfortunately, executive clemency in this state has atrophied into an exercise of miniscule proportion. As of 1 January 1980 no commutation of sentence involving the death penalty or life imprisonment without possibility of parole had occurred since June 1972. (See, Acts of Executive Clemency of California, 1979, Governor's Office, Sacramento, p. vii.) Yet once we create a system of mandatory punishment for all defendants whose crimes fall within a particular category, the need for an active system of executive clemency becomes urgent, in that the mechanical application of mandatory punishment to a particular defendant may produce a grossly disproportionate result. One does not need to cultivate a sentimental attachment for all criminals and a callous disregard for all victims to conclude that the punishment for this particular crime, when compared with that for other crimes, is excessively severe and demands modification.

Appellate courts in California do not have authority to modify mandatory sentences, but such authority does exist in the constitutional power of clemency given to the Governor. (Cal.Const., art. V, s 8; Pen.Code, ss 4800ff.) At the time of defendant's crime the Penal Code punished first-degree murder by death, life imprisonment without possibility of parole, or life imprisonment. (Pen.Code, s 190, Stats. 1977, ch. 316, s 5.) A person sentenced to life imprisonment became eligible for release on parole at the end of seven years (Pen.Code, s 3046). I urge the Governor to exercise his power of executive clemency in this cause and commute defendant's sentence to life imprisonment.


1.  Ms. Cameron was unable to identify appellant as the male from a high school yearbook photo of him.

2.  Houghton Park is located near Jordan High School where appellant, then 16 years of age, was a student.

ROTH, Presiding Justice.

BEACH, J., concurs.

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