Jordan v. People

• Decision Date: 31 October 1966
• Docket Number: No. 21479,21479
• Parties: Joe JORDAN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 656

419 P.2d 656

161 Colo. 54

Joe JORDAN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 21479.

Supreme Court of Colorado, En Banc.

Oct. 31, 1966.

Rehearing Denied Nov. 21, 1966.

Walter L. Gerash, Carl Feldhamer, Kenneth A. Selby, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Robert C. Miller, Asst. Atty. Gen., Denver, for defendant in error.

PRINGLE, Justice.

Plaintiff in error, Joe Jordan, was found guilty by a jury of taking indecent liberties with his step-daughter. He was sentenced to an indeterminate term of from one day to life in the State Penitentiary. He brings writ of error, seeking to reverse the judgment of the trial court. We will refer to the plaintiff in error as defendant, or by name, and to the defendant in error as the People.

The defendant enumerates several alleged errors which he contends require reversal. They are as follows:

1. That the defendant's confession was involuntary and that it was prejudicial error to admit it into evidence.

2. That the information was fatally defective in that it failed to charge a crime.

3. That the alleged victim was not a competent witness and should not have been allowed to testify.

4. That the defendant's wife, Donna Jordan, should not have been allowed to testify over the defendant's objection that her testimony was privileged.

5. That numerous instructions given by the trial court to the jury were erroneous and highly prejudicial to the defendant.

6. That the sentence was erroneously imposed under the Sex Offender's Act, C.R.S.1963, 39--19--1 et seq., rather than under the statute on indecent liberties, C.R.S.1963, 40--2--32.

At the trial, the defendant's step-daughter testified concerning the acts committed upon her by the defendant, a practicing osteopathic physician. The victim's mother testified as to the complaint made by the girl. The court also admitted into evidence, on behalf of the People, a written statement made by the defendant that he had committed the various acts charged by the victim. The defendant himself did not testify. The evidence on his behalf consisted of character witnesses, statements made by the wife to witnesses that she was going to ruin the defendant for what he did, and testimony by a girl who worked in the defendant's office and also lived in the family home, that she did not see the commission of the acts charged although the victim testified that the girl was present in the doctor's office during some of these acts. She also testified that the victim was very fractious and often lied. The People attempted to impeach the testimony of this witness by showing that she and the defendant had left town together.

I.

The principal assignment of error relied upon is the defendant's claim that the trial court erroneously admitted the defendant's confession into evidence. The confession was admitted over repeated and timely objections that it was not voluntary. The confession was handwritten and in question and answer form. The questions were written by the interrogating officer and the answers were written by the defendant. An examination of all of the circumstances surrounding the obtaining of this confession convinces us that the trial court was correct in ruling that the confession was voluntary.

The testimony concerning the circumstances under which the confession was made was uncontradicted. It came from the interrogating officer and the defendant's wife. The defendant did not attempt to rebut this testimony by showing any contradictory evidence, nor did he take the stand either during the In camera proceeding held by the trial court to determine the voluntariness of the confession or in open court, after the confession had been introduced there. He offered no alternative version of the circumstances surrounding the making of the confession.

The record of the In camera hearing shows the following circumstances. The defendant was committed to the psychopathic ward of a hospital at Boulder, Colorado on December 27, 1963 under a hold and treat order because of an apparent suicide attempt on his part. He was questioned briefly on January 4, 1964 by officers from the Adams County Sheriff's office. On his release from the hospital on January 6, 1964, he was arrested, taken before a Justice of the Peace, charged with incest and jailed in Adams County. He was then questioned briefly on the morning of January 7, 1964. He was advised of his rights at this time. Late in the afternoon of that day he was again questioned after being advised of his rights. While he was being questioned in the late afternoon, the defendant's wife, Donna Jordan, came to the office where the questioning was taking place. Mrs. Jordan came of her own volition and not at the request of the police. The defendant asked to be alone with his wife and this request was granted. They talked together for about 15 minutes. Thereafter, the officer returned and the defendant's wife made the following statement:

'You have told me the truth and I would like to see you tell it to these people and not make * * * out to be a liar.'

Thereupon, the defendant indicated he wished to talk and made the statement now objected to.

The defendant had retained counsel prior to the evening of January 7, 1964, and had conferred with that counsel. His counsel was not present at the time the confession was made. The interrogating officer testified that at that time he advised defendant of his rights and he also said the following to the defendant: 'Well, I also assume that Mr. Selby (defendant's counsel) has told you you should not make a statement.' To this the defendant replied: 'Yes; but I will do what I please. I want to get right with God and myself * * * I will just do what I want to in this case * * * I'm going to make a statement and give it to you. I don't want my little girl to have to go through court.' The defendant then proceeded to give the confession to the interrogating officer.

We are asked to hold as a matter of law, that the absence of counsel was in itself a denial of the defendant's constitutional right to the assistance of counsel under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. However, Escobedo and Miranda are not applicable to this case since it was tried before either of them had been announced. In Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the United States Supreme Court held that Escobedo and Miranda do not apply retroactively, but apply only to cases in which trial began after the date of their announcement. See also Ruark v. People, Colo., 405 P.2d 751.

It is clear from Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895, that trials not governed by Escobedo and Miranda, however, are to continue to be governed by the traditional 'voluntariness' tests. Since each case dealing with the voluntariness of confessions must be decided on its own facts, we must look to the 'totality of the circumstances' to see if the confession here was voluntary or involuntary.

As early as 1941, the United States Supreme Court indicated that due process requires exclusion of involuntary confessions, not because they may not be truthful, but because of the fundamental unfairness in the use of evidence so obtained. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760; Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed 166.

Here the defendant was not subjected to prolonged and relentless interrogation by relays of officers as in Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265, or Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801. The periods of interrogation were not overly long nor were offensive tactics used here. While the trial court recognized that the defendant was emotionally distraught, the court also found as a matter of fact that the defendant was capable of understanding what he was doing. The defendant stated that he wanted to give this confession. And the confession itself shows that he was so sufficiently coherent in his own mind that when asked for an explanation of his conduct he wrote as the reason for his actions: 'compulsive, uncontrollable urges as result of childhood pathological-psychological experiences induced by relatives.' His answers were coherent and not inconsistent. They were not apparently given in coached wording but were in the defendant's own words.

We are not unaware of the Sixth Amendment right-to-counsel implications raised by Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, a case which preceded Escobedo by approximately one month. But even if the new exclusionary rule announced in that case were to operate retrospectively, (and we do not think it does) the situation here is vastly different from the fact situation there. Here with full knowledge of his rights, and having been told by his lawyer not to speak, and having been reminded of that admonition of counsel by the police, the defendant nevertheless explicitly chose to proceed to make his statement to the police officer with full knowledge that he was speaking to the police. This is in direct contrast to the situation in Massiah, where it was apparent that the police, after Indictment and arraignment, used trickery to obtain a confession from the defendant in the absence of his lawyer.

In view of the uncontradicted testimony of the witnesses as to the circumstances surrounding the taking of this confession, we are convinced that the trial court was correct in ruling that the confession was voluntary. Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448. The confession was not involuntary as a matter of law, and the record amply supports the trial court's conclusion that...