Deeds v. People

• Decision Date: 21 December 1987
• Docket Number: No. 85SC336,85SC336
• Citation: 747 P.2d 1266
• Parties: Richard Guy DEEDS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 1266

747 P.2d 1266

Richard Guy DEEDS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 85SC336.

Supreme Court of Colorado En Banc.

Dec. 21, 1987.

Rehearing Denied Jan. 11, 1988.

David F. Vela, Colorado State Public Defender, Janet Fullmer Youtz, Deputy State Public Defender, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Eric Perryman, Asst. Atty. Gen., Nathan B. Coats, Sp. Asst. Atty. Gen., Denver, for respondent.

ERICKSON, Justice.

Petitioner Richard Guy Deeds was charged with two counts of sexual assault on a child and was convicted of the second count. The court of appeals affirmed the conviction, 712 P.2d 1055, and Deeds petitioned for certiorari. We granted certiorari on two issues: (1) Whether the trial court erred by refusing the defendant's tendered instruction on the standard of proof to be used by a jury to determine the voluntariness of the defendant's statements; and (2) whether the trial court erred by admitting rebuttal testimony that was allegedly irrelevant to the charges at trial. We affirm the court of appeals.

I.

Deeds was charged with two counts of sexual assault on a child, section 18-3-405, 8 C.R.S. (1978), arising from allegations made by Deeds' ten-year-old stepdaughter, the victim in this case. The victim testified that on February 27, 1982, during an evening thunderstorm, she was planning on sleeping with her mother, Susan Deeds, when Richard Deeds grabbed her and insisted that she sleep with him. According to the victim, Deeds held her mouth, rubbed his penis all over her body, and stuck it in her mouth. The victim also testified that on or about March 8, 1982, she accompanied Richard Deeds to a junkyard where Deeds looked at a magazine containing pictures of naked women. Deeds and the victim then returned to the house of Deeds' parents where Deeds stuck his penis out of a hole in his pants and made her hold it. According to the victim, after each incident Deeds threatened to beat her if she told anyone about what happened.

A hearing was held pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), to determine the admissibility of the Deed's statements. At the hearing the trial court found that on March 25, 1982, Willard Earl Goff, Sheriff of Baca County, and two other armed officers went to Deeds' home to make the arrest at approximately 9:00 p.m. Although there was conflicting testimony between the defendant and the sheriff as to what occurred during the arrest, the trial court found that the sheriff physically seized the defendant and made the arrest pursuant to a valid warrant. Before Deeds read the warrant and the information, Goff advised Deeds of his rights and asked him "what happened with [the victim]?" Deeds replied, "I plead guilty. It's all my fault." After reading the warrant and information, Deeds said: "I didn't do all these things. Susie [Deeds] would have to prove all these things." The trial court concluded that Deeds' statements were voluntary, and the sheriff testified to the statements made by Deeds at trial.

Ann Powers, the victim's school teacher, presented her attendance book and testified that the victim had been at school on March 8, 1982. Richard Deeds testified that after school he drove the victim and a group of children from the Bethell Fellowship into Lamar for a roller skating party. While in Lamar, he made a purchase at a Gibsons store and bought dinner at the local Burger King. A cancelled check dated March 8, 1982, written to Gibsons, was entered into evidence.

On rebuttal, the victim stated that David Krause, a neighbor, had seen her crying after the incident on March 8, 1982. The prosecution then called Krause as an unendorsed, nonsequestered rebuttal witness. Krause testified that he saw the victim with Richard Deeds at Deeds' parent's home on March 6, 1982. He also testified that the victim was crying and that Deeds had a hole in his trousers near his front pocket. No objection was raised by the defense to the rebuttal testimony of either the victim or David Krause. Valerie Deeds, the defendant's grandmother, was called on surrebuttal and presented testimony indicating that the assault could not have happened on March 6, 1982. After both sides rested, the defendant for the first time complained about the prosecution's rebuttal evidence. Deeds requested a mistrial claiming that the information failed to sufficiently apprise him of the offense because the date of count II on the information was March 8, 1982, but the evidence at trial demonstrated that the assault occurred on March 6, 1982. The motion was denied. The jury returned a verdict of guilty to the second count, and Deeds was sentenced to two years imprisonment.

II.

Deeds contends that the trial court erred by refusing his tendered instruction setting out the standard of proof to be used by the jury in determining the voluntariness of his confessions as beyond a reasonable doubt. The trial court submitted the following instruction to the jury:

Extra-judicial statements or confessions of one on trial for the commission of a crime must be voluntary, otherwise they are not admissible against him, and the burden is upon the prosecution to prove, by a preponderance of the evidence, that any extra-judicial statements or confessions offered in evidence by them are voluntary; therefore, if you shall not find and believe from all the evidence in this case by a preponderance of the evidence, that the extra-judicial statements or confessions alleged to have been made by the defendant were voluntary, then you shall disregard such statements or confessions entirely.

By "preponderance of the evidence" is meant that evidence which is most convincing and satisfying in the controversy between the parties, regardless of which party may have produced such evidence.

The trial court interpreted People v. Smith, 179 Colo. 413, 500 P.2d 1177 (1972), as adopting Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), and holding that the trial judge had only to find by a preponderance of the evidence that the defendant's statement was voluntary to justify submission of the statement to the jury. The court of appeals agreed, holding that the appropriate standard of review for voluntariness was by a preponderance of the evidence.

A.

It is axiomatic that a criminal defendant is deprived of due process of law if his conviction in any way is based upon an involuntary confession. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961); Kwiatkoski v. People, 706 P.2d 407 (Colo.1985); People v. Freeman, 668 P.2d 1371 (Colo.1983); Feldstein v. People, 159 Colo. 107, 410 P.2d 188 (1966). Prior to trial, a defendant seeking to prohibit the admission of a confession is entitled to a determination of whether the statement is in fact involuntary and therefore inadmissible as evidence against the defendant. Jackson, 378 U.S. 368, 84 S.Ct. 1774; Kwiatkoski, 706 P.2d 407. If the trial court determines that a confession is voluntary and therefore admissible as evidence against the defendant, an issue arises concerning the role of the jury: should the jury also assess the voluntariness of the confession, or should the jury merely consider the credibility of the confession. Generally, courts have adopted one of two rules: the orthodox rule, "under which the judge himself solely and finally determines the voluntariness of the confession," or the Massachusetts rule, "under which the the jury passes on voluntariness only after the judge has fully and independently resolved the issue against the accused." Jackson, 378 U.S. at 378, 84 S.Ct. at 1781-1782; see generally McCormick on Evidence, 430-34 (Cleary 3d ed. 1984) (discussion of procedures for determining the admissibility of confessions); 3 Wigmore, Evidence § 861 (Chadbourn rev. 1970 & 1987 Supp.) (same).

While acknowledging the uncertainty of the law in Colorado, Deeds claims that after the trial court initially determines voluntariness in accord with Jackson v. Denno, a jury is permitted to redetermine voluntariness pursuant to the Massachusetts rule. Deeds further argues that when the jury considers whether a confession is voluntary, the required standard of proof is beyond a reasonable doubt. The prosecution, on the other hand, asserts that Colorado follows the orthodox rule and that the jury does not determine whether Deeds' confession was voluntary.

B.

In Kwiatkoski v. People, 706 P.2d 407 (Colo.1985), we acknowledged that "[p]rior decisions of this court contain statements which arguably support both [the orthodox and Massachusetts] positions." Id. at 408 n. 4. It is well established that to be admissible, a confession must be voluntary, and that, at least initially, the question of admissibility is for the court to decide. Whitman v. People, 170 Colo. 189, 460 P.2d 767 (1969); Osborn v. People, 83 Colo. 4, 262 P. 892 (1927); Fincher v. People, 26 Colo. 169, 56 P. 902 (1899). In Osborn, this court stated:

The jury, of course, is not permitted to pass upon the question of admissibility. The court having admitted the confession into evidence, it is for the jury to determine the weight to which it is entitled. The jury may accord to it great weight, little weight, or no weight at all, depending upon the circumstances surrounding the making of the confession.

Osborn, 83 Colo. at 29, 262 P.2d at 901; see also Fincher, 26 Colo. 169, 56 P. 902 ("the truth or falsity of the confession, or the weight which should be given it, were all questions peculiarly within the province of the jury to determine"). Our earliest cases, therefore, adhered to the orthodox rule.

In Bruner v. People, 113 Colo. 194, 156 P.2d 111 (1945), however, this court applied the Massachusetts rule by stating that the judge must preliminarily determine the voluntariness of a...