• Forfeiture by Failing to Object
• Coerced Confessions and Due Process
• Threats to Charge a Relative as an Inducement to Confess

Failure object to the admissibility of evidence at the trial court level precludes, as a general rule, an appellate court from considering the issue.  An appellate court, however, has the discretion to consider an issue not previously objected to if the issue involves pure questions of law on undisputed facts.  A confession coerced by a threat to arrest a close relative is a violation of the Due Process Clause and not admissible in evidence.  An exception to this rule applies when probable cause to arrest the relative exists.

Defendant Enrique Mayorga Jimenez lived in a residential neighborhood in the City of Highland, California, on Elmwood Road, with his two sons (ages 14 and 17) and his elderly disabled mother.  Seven or eight doors down the street was the residence of Morris Barnes; a gang member known to defendant as “Maurice.”  Defendant had heard rumors that Maurice—who he considered to be a friend—and his gangster homies were planning to do a home invasion robbery at defendant’s residence, intending to steal marijuana that defendant grew in his house.  On May 19th of 2016, defendant, while outside, encountered Maurice walking down the street in front of his house.  Defendant—thinking about maybe killing Maurice but not yet being able to make up his mind—invited him into his garage for a beer.  As the two of them sat there drinking together, defendant eventually told Maurice: “I don't understand how can you tell my business to other people and put my mom and my family in harm’s way.”  Maurice’s repeated denials to knowing what he was talking about only pissed defendant off.  Knowing only one way to “make sure that nothin’ happens to my mom,” defendant went into his house and got a kitchen knife.  Returning to the garage, defendant grabbed Maurice in a headlock and stabbed him in the neck and back, killing him.  He then stuffed Maurine’s body into a trashcan and poured gasoline on his remains.  That night, Maurine enlisted the aid of his two sons and took Maurice’s body—still stuffed into the trashcan—to an open field where he intended to light it on fire. Just then, however, Sheriff’s Deputy Jeffrey Casey happened to be driving by.  Deputy Casey observed the three males and their trashcan in the field.  Suspecting that they might be illegally dumping trash, Deputy Casey drove up to them as he turned on his overhead lights, intending to detain the suspects.  Defendant and his sons reacted by fleeing the scene in their Chevy Suburban.  And so the pursuit was on.  The chase went only a few blocks, however, before defendant made a U-turn, returning to the trashcan where he hurriedly tossed a cigarette lighter into the can, setting it (along with Maurice’s body) on fire.  Defendant then sped off again.  As Deputy Casey and other units followed defendant’s Suburban with lights flashing and sirens on, defendant stopped near his house where he dropped off his two sons; both of whom were immediately arrested.  The pursuit went on for some time after that, over various Southern California freeways, eventually ending up in the City of Downey.  Defendant was finally arrested when he ran out of gas.  In a subsequent videotaped interview with a detective, defendant first claimed that he’d found Maurice’s body in a neighbor’s trash.  However, after certain promises were made relative to his sons, defendant fully confessed.  Specifically, in discussing defendant’s son’s possible involvement in Maurice’s murder, the detective told defendant that; “. . . (Y)ou’re gonna be the one to help them. . . . (b)ecause I’m gonna have to charge them with the death of the guy. . . . (u)ntil I find out what happened.”  Defendant responded:  “Okay, well I'll talk to ya and tell ya what happened, okay ”  To make sure they were both on the same page, the detective added:  “So I want to be able to try to help you and your boys, mostly the boys, so— . . . (s)o we don't have to make them criminals.”  Defendant at that point provided a Mirandized confession to killing Maurice and attempting to dispose of his body.  His motivation for confessing to murdering Maurice—as he later testified—was to prevent his sons from being charged with murder and taken to Juvenile Hall.  Defendant’s confession was used against him at trial without objection from his attorney.  Convicted of first degree murder and other charges, he was sentenced to 29-years-to-life.   Defendant appealed.

In a split 2-to-1 decision, the Fourth District Court of Appeal (Div. 2) reversed.  Two issues were discussed on appeal:  (1) Whether defendant forfeited the issue of the admissibility of his confession by his attorney’s failure to object at trial, and (2) whether (if not forfeited), his confession was admissible under the circumstances. 

(1)  Forfeiture:  The basic rule is that absent an objection to the admissibility of some specific piece of evidence (defendant’s confession in this case) at the trial court level, the issue is “forfeited.”  It cannot be considered by an appellate court.  However, there is an exception to this rule.  (Isn’t there always )  Despite the lack of an objection, an appellate court has the discretion to consider an issue if it involves “pure questions of law on undisputed facts.”  In this case, the facts surrounding defendant’s confession were not in dispute; his confession being on videotape.  And the Court found the issue to be “pure(ly a) question of law,” i.e., the admissibility of a confession when precipitated by an interrogator’s threat to criminally charge a close relative.  The Court, therefore, decided to exercise its discretion and consider the trial admissibility of defendant’s confession. 

(2)  Admissibility of Defendant’s Confession:  On appeal, defendant argued that his confession, motivated by the detective’s threat to criminally charge his two sons if he didn’t cooperate, was “coerced;” a constitutional “due process” issue.  The basic rules on this issue are well established: “The use of coerced (i.e., ‘involuntary’) confessions, whether true or false, is forbidden because the method used to extract them offends constitutional principles.” (Lego v. Twomey (1972) 404 U.S. 477, 485.)  Although statements obtained in violation of the Miranda rules, although suppressed in the People’s case-in-chief, may still be used for purposes of impeachment should the defendant take the witness stand and lie, coerced confessions are inadmissible for any purpose.  Whether or not a confession is the product of a law enforcement officer’s coercion depends upon an evaluation of the “totality of the circumstances,” with no single factor being dispositive.  For defendant’s confession to be found to be the product of “coercive police activity,” however, it must be determined whether his eventual confession was “causally linked” to his interrogator’s illegal coercion. (People v. Guerra (2006) 37 Cal.4th 1067, 1093.) With these rules in mind, the majority of the Court here had no problem finding that defendant’s eventual confession was in fact the product (i.e., “causally linked”) of the detective’s threat to charge his two sons with a criminal offense (i.e., murder, or perhaps being an accessory after the fact, per Pen. Code, § 836(a)(2)) if he didn’t cooperate.  In so ruling, the Court noted that the detective initially played on defendant’s emotions, telling him that his sons were “a little afraid.” This was followed by the detective saying: “I’m gonna have to charge them with the death of this guy . . . (u)ntil I can find out what happened.”  Defendant was also told that this was up to him:  “(Y)ou’ve gonna be the one to help them.”  Up until this point, defendant was claiming to have found Maurice’s body in a neighbor’s trashcan.  But after being told that his cooperation was the key to whether or not his sons would be charged, defendant told the detective: “I’ll talk to ya and tell ya what happened, okay ”  And then to cement the deal, the detective reiterated to defendant:  “And then once we do all of that, then we’ll be able to, you know, to clear them from this and then we’ll move on, okay ” The detective also added; “So I want to be able to try to help you and your boys, mostly the boys,” “[s]o we don’t have to make them criminals.”  Clearly, defendant’s confession was not “self-motivated.  It was the direct product of the detective’s threat to charge his sons if he didn’t cooperate.  The case law is clear that threats to incarcerate a close relative used as an inducement to get a suspect to confess is a due process violation.  The People in this case, however, cited an exception to the rule to the effect that when there is probable cause to believe that the relative (the two sons in this case) did in fact commit a crime for which they could be arrested, threatening to do so is not a due process violation and is not impermissible.  (See People v. Boggs (1967) 255 Cal.App.2nd 693.)  The detective in this case, however, admitted to defendant that his sons, based upon what they had told him, were probably not liable to the charge of murder.  The fact that they might instead be liable for some charge other than murder (such as “accessories after the fact”) renders this exception (per the Court) inapplicable.  (But, see Note, below.) As such, the Court ruled that the fact that there might have been probable cause to arrest the sons for something other than murder does not change their ruling.  Defendant’s due process rights were still violated.  Finding the error in admitting defendant’s confession into evidence to be prejudicial, the Court reversed his conviction for murder and remanded the case to the trial court for further proceedings.

The Court’s ruling that you can’t threaten to bucket a “near relative” as a means of motivating a suspect to confess has been around for almost eight decades, and is clearly correct.  (See People v. Mellus (1933) 134 Cal.App. 219, 225; and People v. Matlock (1959) 51 Cal.2nd 682, 697; “A confession coerced by a threat to arrest a near relative is not admissible.”)  The detective in this case should have known this and perhaps tailored his questioning accordingly.  However, that doesn’t necessarily mean that he screwed up.  The dissenting opinion (this being a 2-to-1 decision) argued that aside from the issue being forfeited by defense counsel’s failure to object (disagreeing with the majority on this issue), defendant’s motivation for confessing was not an attempt to keep his sons from being charged with murder, but rather that they merely be released from custody at that time and not taken to Juvenile Hall.  The dissent also points to comments made indicating that defendant was well aware that the D.A. would be making the decision whether or not to charge his sons, and not the detective, taking the wind out of the argument that he confessed to keep the detective from charging his sons with murder.  And perhaps more importantly, remembering that it is not error to threaten to charge a close relative with a crime when there is probable cause to believe that the relative did in fact commit some crime (People v. Boggs, supra.), the dissent pointed out that when the detective was questioning defendant, he didn’t know to what degree the sons might have been involved. The detective was not required to believe the sons when they claimed that they didn’t participate in the murder itself.  And as noted by the dissent, the sons, as far as the detective knew at that point, could have been criminally liable for anything from being accessories after the fact to the murder itself.  For this reason, as argued by the dissent, the Boggs exception does in fact apply in this case despite the majority’s opinion to the contrary.  Additionally, I might point out—also contrary to the majority’s express opinion— that there is also absolutely no case law saying that for the Boggs exception to apply, the crime which the relative is suspected to have committed (the sons likely being guilty of at least being accessories after the fact), and that the detective is threatening to charge them with, has to be the same crime for which the defendant is being charged.  Bottom line; there are some contestable points here making this case ripe for reconsideration at the Supreme Court level.  Hopefully, it will be taken up.