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B. Defendant Made a Knowing, Intelligent, and Voluntary Waiver

Defendant argues that because she was interviewed while intoxicated and suffering the effects of a concussion, she lacked the capacity to knowingly, intelligently, and voluntarily waive her Miranda rights. Defendant also contends the trial court failed to inquire whether the circumstances of her interrogation, including the officers’ decision to avoid seeking an express Miranda waiver, precluded a finding that the Miranda warnings were effective. We disagree. We conclude the record supports the trial court’s finding that defendant knowingly, intelligently, and voluntarily waived her Miranda rights.


1. The Concussion Evidence

Outside the presence of the jury, the respective medical experts—Dr. Ponton for the prosecution and Dr. O’Connor for the defense—testified as to the effects of defendant’s concussion on her ability to knowingly, intelligently, and voluntarily waive her Miranda rights. Both experts based their conclusions on (1) a nurse’s report prepared when defendant received medical attention at the jail at 10:00 p.m. on the night of her arrest, and (2) defendant’s videotaped interview statements.



The Prosecution’s Expert. Dr. Ponton testified that based on his review of the nurse’s report and defendant’s videotaped interview statements, it was “more likely than not” that defendant had suffered a concussion. Because there was no evidence of a loss of consciousness, Dr. Ponton believed that defendant had suffered a grade one concussion. Based on defendant’s videotaped statements, Dr. Ponton found that defendant was not confused and was able to understand the questions that were posed during the interview. Dr. Ponton saw nothing in the videotape that would lead him to believe that defendant did not understand the Miranda rights that were read to her. It was clear, in his view, that defendant “could understand what she was being asked. She was responding appropriately.”

Dr. Ponton further noted that during the videotaped interview, defendant “was trying to provide stories filling up time. She was thinking on the spot. She was trying to provide exculpatory versions of the events.” He concluded from the manner in which she presented herself that she would have responded to the questions in the same way even in the absence of a head injury.

As to defendant’s difficulty in providing personal information, Dr. Ponton stated: “Whenever she had to provide her personal information that identified herself, she had difficulties. She did not have any difficulty identifying her son’s date of birth, her son’s name, her son’s phone number, her boyfriend’s full name and address, her boyfriend’s phone number, the name of the employer. Whenever information was asked of her that involved other people, she was able to provide it just like that. When she was asked about her date of birth, her age, her name, she always hesitated and had problems providing that information. [¶] Q How did that strike you in entering your opinion so far as possible confusion? [¶] A I felt that she was not forthcoming with personal information.”

The Defense Expert. Dr. O’Connor testified that based on his review of the nurse’s report, defendant was still intoxicated when she was examined by a nurse at the jail at 10:00 p.m. on the night of her arrest. He believed, based on his review of the nurse’s report and the videotaped interview, that defendant had suffered a grade two concussion. In Dr. O’Connor’s view, defendant’s difficulty in answering basic questions (the spelling of her last name and date of birth) and her complaints of blurred vision, headache, and not feeling well were consistent with a grade two concussion.

However, Dr. O’Connor testified that there was nothing in the videotaped interview that would lead him to conclude that defendant did not understand the Miranda rights that were read to her or the questions that followed.


2. The Trial Court’s Ruling

In concluding that defendant was able to understand her Miranda rights, the trial court stated: “I listened to the testimony of Dr. Ponton, Dr. O’Connor, and Officer Lopez. Just to summarize briefly. Dr. O’Connor testified, in his belief, at the time of the interview, Ms. Rios had suffered what he believed to be a grade two concussion. Dr. Ponton testified, in his belief, the concussion was a level one concussion. Dr. O’Connor indicated that he could not opine whether or not with the grade two concussion Ms. Rios was or was not able to understand the Miranda warnings given. I don’t find that leads me to believe even if Ms. Rios had suffered a grade two concussion, there is no evidence produced before me that Ms. Rios was not able to understand the Miranda warnings and the questioning of her during the actual interview. I find Dr. Ponton’s opinion to be more credible than Dr. O’Connor’s. Over the objections of the defense, I am going to find that the statements given by Ms. Rios during the Miranda interview were knowing and voluntary, and that would be my ruling.”


3. Defendant’s Contentions on Appeal

Defendant contends that by relying on Dr. O’Connor’s inability to determine whether the concussion had rendered her incapable of understanding her Miranda rights, the trial court erroneously shifted the burden of proof to defendant. We disagree. The trial court found the prosecution had met its burden, through Dr. Ponton’s expert testimony, to establish a knowing, voluntary, and intelligent wavier of defendant’s Miranda rights. We conclude the trial court’s reliance on Dr. Ponton’s testimony was proper and did not shift the burden of proof to defendant.

Defendant next contends, for the first time on appeal, that Dr. Ponton’s testimony was insufficient to support the trial court’s ruling because Dr. Ponton lacked the necessary medical experience to determine whether she understood her Miranda rights. The problem with this contention, however, is that defendant did not raise it below and, therefore, failed to preserve the issue for appeal. (Evid. Code, § 353, subd. (a) [a finding shall not be reversed based on the erroneous admission of evidence unless “[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion”].)13

Finally, defendant contends that because the trial court denied her exclusionary motion on the ground that the pre-Miranda questions were not meant to elicit incriminating statements, “the court never undertook an inquiry into the question of whether the circumstances of appellant’s interrogation, including the officers’ decision not to seek a waiver of rights from appellant, precluded a finding that the Miranda warnings were effective. Absent such an inquiry by the court, the statement was inadmissible, and the conviction must be reversed.” (Citing Edwards v. Arizona (1981) 451 U.S. 477, 484.) Defendant’s reliance on Edwards is misplaced. In that case, the defendant invoked the right to have counsel present during custodial interrogation. Where the right to counsel is invoked, “a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” (451 U.S. at p. 484.) Because in this case the right to counsel was not invoked during custodial interrogation, Edwards is inapplicable. Based on our review of the record, we are satisfied that substantial evidence supports the trial court’s finding that defendant knowingly, intelligently, and voluntarily waived her Miranda rights.





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