Billings v. People

• Decision Date: 16 March 1970
• Docket Number: No. 23034,23034
• Citation: 171 Colo. 236,466 P.2d 474
• Parties: Clifford A. BILLINGS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 474

466 P.2d 474

171 Colo. 236

Clifford A. BILLINGS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 23034.

Supreme Court of Colorado, In Department.

March 16, 1970.

Williams, Taussig & Trine, John A. Purvis, William D. Neighbors, Boulder, John L. France, Aurora, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., James F. Pamp, Aurel M. Kelly, Asst. Attys. Gen., Denver, for defendant in error.

GROVES, Justice.

The plaintiff in error, called the defendant, was convicted of second degree arson and of burning a building with intent to defraud an insurer. The structure involved, part of which was used by the owner as a liquor store with the remainder occupied as a dwelling, was located at Erie, Colorado. The fire occurred on a Sunday evening and was extinguished by the fire department. The property owner expressed his appreciation by giving the fire chief a bottle of whiskey. The discovery that the bottle contained gasoline rather than whiskey prompted an arson investigation.

A witness testified that earlier on the evening of the fire he had seen the defendant carrying a large shopping bag enter the liquor store. Nine days following the fire the defendant was questioned by two sheriff's officers, the fire chief, and an insurance investigator. The questioning took place in the officers' automobile and, after approximately two hours, the defendant made an oral confession. Later the defendant signed a printed form which acknowledged his receipt of 'Miranda' warnings and contained his waiver of the constitutional rights involved. At the same time he signed a written confession.

The two officers testified in effect that prior to the initial questioning they gave 'Miranda' warnings to the defendant. The defendant and the fire chief testified that no such warnings were given prior to the oral confession. One sheriff's officer stated that he advised the defendant that he had the right to remain silent; that anything he said might be used against him; that he had the right to an attorney; that he had a right to have an attorney present during any questioning; and that if he could not afford an attorney the court would appoint one. The officer was then asked, 'What did Mr. Billings say with response to that?'; and the officer answered, 'I asked if he understood this, and he said that he did.' The record continues, as follows:

'Q And was that the gist of the advice you gave him?

'A Yes, sir.

'Q. Anything further at all?

'A No, sir.'

The other officer testified that the defendant was advised that he need not say anything; that he might have an attorney present; that if he couldn't afford one that the court would appoint an attorney; and that anything he said could be used against him. The defendant replied 'I understand.' We have been unable to find any testimony in the record to the effect that prior to the oral confession the defendant made any statement expressly waiving his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.

The information originally charged the defendant, the owner of the building and the mortgagee of the building with the crimes of which the defendant was convicted and, in addition, charged the three with conspiracy to commit arson and conspiracy to defraud an insurer. The prosecuting attorney planned to rely heavily on the testimony of the defendant's wife to establish the acts of conspiracy. When his wife was called to the stand, she successfully declined to testify on the ground that she might incriminate herself. Thereafter, the charges against the owner and mortgagee were dismissed on motion of the prosecuting attorney.

I

The principal issue in this matter is whether there was adequate compliance with Miranda v. Arizona, Supra. Sullins v. United States, 389 F.2d 985, was decided by the Court of Appeals of the Tenth Circuit and was announced on February 26, 1968, subsequent to the trial of the instant action. In contrast to Miranda, Sullins has facts quite analogous to the present matter. The Attorney General has conceded that, if we are to follow Sullins, we must reverse.

In Miranda it was said:

'An individual need not make a preinterrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given.'

'An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.'

We need not follow Sullins unless we find it persuasive; and we do not so find its majority opinion. We are far nore impressed with Judge Lewis' concurring and dissenting opinion in which he made the following statement:

'We learn from the specifics of Miranda that neither the silence of the accused nor the actual giving of a statement is sufficient in this regard and the evidence in this case offers nothing further. But I do not agree, as I read the main opinion to hold, that an express declination of the right to counsel is an absolute from which, and only from which, a valid waiver can flow. Miranda states that such a declination followed closely by a statement 'could' constitute a waiver. It does not negate other possibilities. * * *'

As we read a subsequent 10th Circuit case, Bond v. United States, 397 F.2d 162, it approves Judge Lewis' concurring and dissenting opinion in Sullins. See People v. Johnson, Cal., 75 Cal.Rptr. 401, 450 P.2d 865. As Miranda was decided by the United States Supreme Court, we are bound by it and must follow it. Rohr Aircraft Corp. v. San Diego County, 51 Cal.2d 759, 336 P.2d 521; State v. Coleman, 46 N.J. 16, 214 A.2d 393, 16 A.L.R.3d 845; Breckline v. Metropolitan Life Ins. Co., 406 Pa. 573, 178 A.2d 748, 2 A.L.R.3d 1135. Had the confession of the defendant immediately followed the giving of the Miranda warnings, we might reach a conclusion that the defendant's statement, 'I understand,' constituted sufficient evidence to support a finding that the defendant had waived his rights against self-incrimination--but this is not the case under the present record and we have reached no conclusion in this respect.

The defendant was pressed hard by each of the four people who had him in the sheriff's car, and particularly by the insurance investigator. As stated, nearly two hours were consumed between the time the Miranda warnings were given and the time that the defendant made his oral confession. This elapse of time, coupled with the defendant's weakness for alcohol and the fact that he had been drinking prior to the arrival of the officers, creates a situation--so far as the record before us discloses--which did not meet the Miranda standards. As is always the case, a court in passing on whether a confession is voluntary must consider the totality of the circumstances. For this confession to be admissable there must be further evidence of waiver on the part of the defendant.

In Sullins a new trial was ordered when the court found that there had been no compliance with Miranda. We do not feel that in all events a new trial is required. From the testimony of the officers above set forth an implication might be drawn that the defendant did not expressly waive his rights against self-incrimination. Perhaps one making such an implication might find strength in the testimony of the fire chief and the defendant to the effect that no warnings were given. However, since neither of the sheriff's officers was questioned as to the matter of any affirmative waiver being made by the defendant, we do not indulge in the implication. Rather, we rule that the trial court should first hold a further hearing to determine whether or not, at the commencement of the initial questioning, there was an express waiver by the defendant of his constitutional privilege against self-incrimination. If, as a result of such hearing, the trial court determines that there was a failure to comply with Miranda, then it should order a new trial. If, on the other hand, it determines that there was such a compliance, we affirm the conviction as to both charges. See Compton v. People, Colo., 444 P.2d 263.

II

The defendant urges that prejudicial error was committed by forcing the defendant's wife to claim the 'Fifth Amendment' in front of the jury after the court and the prosecuting attorney had been advised that she would make such claim. Defendant relies on De Gesualdo v. People, 147 Colo. 426, 364 P.2d 374...