Tyson

*1277 Opinion

A jury convicted appellant Morgan Andre Tyson of second degree murder, attempted robbery, two counts of assault, and two counts of robbery. (Pen. Code, §§ 187, 211, 245, subd. (a)(1), 664.) 1 Tyson appeals, contending that (1) his statements were taken in violation of Miranda and were involuntary; (2) the murder charge should have been severed from the remaining counts; (3) an in-court identification of Tyson should have been excluded; (4) the trial court’s persistent acts of overruling his objections evidence its bias against Tyson; (5) the jury was incorrectly instructed; and (6) his sentence was improperly enhanced. We affirm the judgment.

I. FACTS

A. Assault and Robbery of Karen Kline

Close to midnight on June 21, 1982, 2 Karen Kline walked from her car toward Highland Hospital on East 31st Street in Oakland. Hearing footsteps, she turned and saw a man who stabbed her in the head and chest with a scissor-type weapon. After she was stabbed twice, she fell to the ground. Her assailant knelt beside her, placed his hand on her mouth, and said, “ ‘Don’t scream or I’ll kill you.’ ” At this point, Kline saw the man clearly. 3 He pulled her to her feet and tried to…

I respectfully dissent from the majority’s conclusion that defendant unambiguously waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ].

That defendant’s statement was unambiguous and that it was a waiver will come as a surprise to the interrogating police officers who took defendant’s response to be an ambiguous invocation of his right to counsel. The officers immediately rejoined by telling him he was an adult, and that he would have to make up his own mind as to whether he wanted to speak with the police. 2 Put plainly, if the officers right there on the scene hearing the words as they were uttered did not understand them to mean that defendant was affirmatively agreeing to speak with them, how can an appellate court reading a cold record have such intuitive powers? In all other cases I can remember this court as a matter of routine defers to what it calls police officer expertise. Why abandon that practice here?

My complaint is with the method by which these police officers elicited defendant’s actual waiver which came later: they argued with him once he mentioned that he had been advised that he needed an…