COURT WATCH: Prosecution Attempts to Use Accused’s Out-of-Context Statement as Evidence – Judge Disagrees

By Sarah Chayet and Ella Rindt

MODESTO, CA – A preliminary fact determination hearing was held here in Stanislaus County Superior Court Tuesday to decide if the prosecution could admit a statement made by the accused at the time of detainment in the jury trial later that day.

After hearing Deputy Public Defender Patrick Tat-Long Shum’s argument, Judge Dawna F. Reeves ultimately decided to exclude the statement from evidence, ruling it was “out of context.”

The accused is facing criminal felony charges of allegedly participating in organized retail theft in November of 2023.

DPD Shum also argued Deputy District Attorney Fawntina Maria Smolak was unable to establish the statement was made voluntarily; no witnesses could confirm whether or not the accused had their rights read to them before making the statement.

According to Modesto Police Detective Douglas Ridenour, who took the stand as DDA Smolak’s first witness, he heard the accused say “not gonna stick, it’s a democrat state,” while he was standing about three or four feet away.

Det. Ridenour had arrived at the Crossroads Shopping Center in Riverbank after the accused and others had already been detained.

“I just stood by with the people that were involved with the case,” said Det. Ridenour. He identified one of these people as the accused, noting, “She was standing with another female near a vehicle, and I just stood by with them while the officers conducted their investigation.”

When asked by DDA Smolak if he spoke to the accused at that time, Ridenour said “just in small talk…I don’t think I asked her anything.”

DDA Smolak also asked Detective Ridenour if he knew whether or not the accused had been “Mirandized” (read her rights) at that time. Detective Ridenour responded: “I have no idea.”

“I did hear one specific statement,” added the detective, stating, after reviewing the written report, he had heard the accused say “not gonna stick, it’s a democrat state.”

While Ridenour did recall hearing the accused make this statement, he could not recall what the accused was referring to, or what the context of the statement was.

“When (the accused) made that statement, was she speaking to you?” asked DDA Smolak.

“I don’t think so…if my memory serves me correctly I think that a conversation was occurring between her and the other female,” said Det. Ridenour.

DPD Shum asked Ridenour if he remembered asking the accused where she was from when he was making small talk, but he said, “I don’t recall it, but that would most likely be something in small talk that I would ask, yeah.”

DPD Shum inquired about the significance of the alleged small talk in the context of the investigation that, at the time, was ongoing: “But wouldn’t a question like where a person is from be information that you would want to get as part of an investigation?”

“If I was conducting the investigation or interview, probably,” said witness Ridenour.

Det. Ridenour added he wouldn’t classify what he was doing as helping the officers with their investigation, explaining, “I was more just standing by with them…if I was asking specific questions I would’ve reported that, saying, ‘this person told me this, that, and the other.” Again, I was there to stand by them while (officers) were searching the vehicle, and I was just making small talk with them.”

In response to a hypothetical situation proposed by DPD Shum, Ridenour said, if he had heard something that would be important to the investigation in that small talk, he would report it.

“But as far as chatting, of course, you’re still very attentive because you’re a police officer, and you need to be aware of your surroundings and what’s going on, for example, right?” asked DPD Shum.

“If this was a homicide investigation, if this was something more critical, yes, but that wasn’t the case here,” responded the detective.

“It sounds to me like you’re saying you’re not really careful if it’s not anything serious,” said DPD Shum.

“Again, I wasn’t asking any questions…to put it bluntly, I was a wasted body there. I was standing by with these people while people were doing the other job. I was absolutely doing nothing related to the investigation at that moment in time,” said Ridenour.

Det. Ridenour stated he did not remember if any other officers had asked the accused any questions, noting, “I can’t stress enough, as embarrassing as this might sound, I was not doing much. I was handling another thing, and I showed up to stand by with these guys.”

DPD Shum stated, “I don’t think there’s any dispute that the accused was in custody for Miranda purposes, and that Det. Ridenour does not recall if Miranda warnings were given. At this point, I believe the prosecution bears the burden of establishing the voluntariness of the statement.

“In light of Officer Ridenour’s failure to recall much of whether or not there was interrogation or not, I don’t think the prosecution has met its burden of establishing the voluntariness of the statement. I don’t think the prosecution has met their burden of proving admissibility, as they’re seeking to admit this statement into evidence.”

DDA Smolak continued to argue for the accused’s statement to be admissible, maintaining the detective “testified that the (accused’s) statement, based on his observations being three or four feet away, that it appeared that she was making that statement to the other person that was next to her. He also testified that she did not make that statement in response to any law enforcement question, therefore it is a spontaneous statement and the Miranda would not apply.”

In her response, Judge Reeves made the decision to discard the accused’s statement, disallowing it to be used as evidence in the coming trial, stating,  “What I understand, from what Det. Ridenour said, together with what I saw in the video, is that…(Ridenour) merely stood by with at least two ladies that were standing in handcuffs…and he overheard part of a conversation between the two of them, and he attributes the statement to the accused, something to the effect of, ‘it’s not gonna stick, it’s a democrat state.’”

“The statement is somewhat taken out of context,” continued Judge Reeves. “I do believe it’s voluntary, I believe that it was a spontaneous statement made not in response to police questioning, based on what I heard and what I saw on the video. The question is whether or not the statement should be admitted in the People’s case-in-chief as such.”

Judge Reeves ultimately agreed with some of DPD Shum’s main points, noting, “Mr. Shum had an argument that under (Penal Code) 352, (the statement) should be excluded, and that argument is somewhat compelling, because (the statement) is taken out of context. It’s not even a full statement…You can argue (the accused) is referring to the charges, but when it was first proffered to the court, the word ‘charge’ was included: ‘charge not gonna stick.’”

“So I think on the 352 analysis, even though it’s voluntary, it fails. I am going to exclude it from the People’s case-in-chief. However, if the defendant testifies, Ms. Smolak, you can ask her about it,” said Judge Reeves.

The case was introduced to a jury later that day. The matter will continue to be heard with the accused’s statement omitted from evidence.

About The Author

I'm a recent California Polytechnic University, San Luis Obispo grad. I majored in English and received a minor in Studio Art. In the fall, I plans to go back to school for a master's degree in English Literature. Currently, I am a transcript editor for CalMatters, and I hope to enter the field of technical writing someday. In my freetime, I love to draw, go on roadtrips, and camp

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