People v. Baird

• Decision Date: 07 November 2002
• Docket Number: No. 99CA2221.,99CA2221.
• Citation: 66 P.3d 183
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel G. BAIRD, Defendant-Appellant.
• Court: Colorado Court of Appeals

66 P.3d 183

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel G. BAIRD, Defendant-Appellant.

No. 99CA2221.

Colorado Court of Appeals, Div. V.

November 7, 2002.

Certiorari Denied March 24, 2003.¹

Ken Salazar, Attorney General, Wendy J. Ritz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Lisa Dixon, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge MARQUEZ.

Defendant, Daniel G. Baird, appeals the judgment of conviction entered on jury verdicts finding him guilty of one count of attempted second degree murder, an accompanying count of crime of violence, and two counts of first degree assault. Defendant also appeals his sentence. We affirm in part, vacate in part, and remand for correction of the mittimus.

On September 22, 1996, at approximately 11:00 p.m., after defendant and his wife had gone to bed, the wife's former husband attempted to return their child to defendant's home located in a rural neighborhood. A deputy sheriff followed the former husband to the home and escorted the child to the door. The deputy knocked loudly enough to awaken defendant and his wife, but did not identify himself as a police officer. The deputy was carrying his flashlight, but did not direct his headlights at the house or turn on his overhead light bar.

Defendant, purportedly in fear for his safety and that of his family, picked up a decorative sword and proceeded to the door. Holding the sword in front of him, defendant opened the door, and the sword struck the deputy's chest. Not realizing it was a sword, the deputy pushed it away with his right hand, sustaining cuts that required twenty-two stitches.

A state trooper responded to the deputy's call for assistance and, after observing the scene and speaking with defendant, placed defendant under arrest.

After jurors were sworn, but before opening statements, one juror became ill and was excused. No alternate juror was available, and despite his attorney's advice to request a mistrial, defendant agreed to proceed with eleven jurors.

Following trial, defendant was sentenced to twelve years imprisonment for each count, with the sentences to run concurrently.

I. Defendant's Statements

Defendant contends that the trial court should have suppressed his statements to the trooper because they were made during a custodial interrogation without the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and because they were not made voluntarily. We disagree.

A. Custodial Interrogation

We first conclude that defendant's statements were not made during a custodial interrogation.

As a preliminary matter, we note that defendant requested a hearing on voluntariness under Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and that the trial court made no findings as to custodial interrogation.

For Miranda to be applicable, the suspect must be in custody and the statement must be the product of a police interrogation. People v. Reddersen, 992 P.2d 1176 (Colo.2000).

Statements made during a custodial interrogation are admissible only if the person making them has been properly advised of his or her rights and if the person has made a knowing, intelligent, and voluntary waiver of those rights. People v. Rivas, 13 P.3d 315 (Colo.2000); People v. Harrison, 58 P.3d 1103, 2002 WL 1040277 (Colo.App. No. 01CA0147, May 23, 2002).

The term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police, other than those normally attendant to arrest and custody, that the police should know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); People v. Taylor, 41 P.3d 681 (Colo.2002). However, an on-the-scene investigation or questioning that enables an officer to determine what has happened and who has been injured is not an interrogation under Miranda. People v. Denison, 918 P.2d 1114 (Colo.1996).

Here, upon entering defendant's residence, the state trooper asked defendant, "What happened?" According to the trooper's testimony at trial, defendant responded:

He said he heard a pounding at the door. We were in bed. I had a sword to protect my family. I thought it was her ex-husband. I thought it was her ex-husband—I'm sorry—I thought it was her ex-husband. He's a brown belt in Karate. He sometimes carries a gun. I did not mean to stab the deputy.

Defendant denied making these statements.

Defendant contends that when the trooper asked "what happened," the trooper had already determined that a crime had been committed and that defendant was a suspect. Defendant also asserts that he was not free to leave because the deputy had at one point drawn his gun and later told him to stay in the house, rather than go outside and confront the ex-husband. We are not persuaded.

The trooper's question constituted an on-the-scene investigation. See People v. Denison, supra. However, even if the question is viewed as interrogation, we conclude that defendant was not in custody.

The question of custody turns on an objective assessment of whether a reasonable person in the suspect's position would believe himself or herself deprived of freedom of action to the degree associated with a formal arrest. To determine whether a person is in custody, we consider a number of factors including the time, place, and purpose of the encounter, the persons present, the words spoken, the officer's tone of voice and general demeanor, the length and mood of the interrogation, any limitation of movement or other form of restraint, responses to questions asked by the defendant, directions given to the defendant, and the defendant's responses. People v. Matheny, 46 P.3d 453 (Colo. 2002); People v. Taylor, supra; see People v. Mangum,

48 P.3d 568 (Colo.2002).

Determining whether a person is in custody for Miranda purposes is a mixed question of law and fact. People v. Matheny, supra.

While the trial court here made no findings on custody, the following facts are undisputed. The question was asked in defendant's home in the middle of the night, after an officer had been injured. Except for being told by the deputy not to go outside when defendant indicated he wanted to get the ex-husband off his property, defendant was not restrained or limited in his movement. While two officers were present, one was injured, and at the time of the question neither officer had a weapon drawn. Only one short question was asked, and after answering the trooper, defendant refused to be arrested in his home. This refusal strongly indicates that defendant did not believe himself to be in custody at the time of the trooper's question.

We therefore conclude defendant's statements were not the product of a custodial interrogation, but rather responses to an appropriate on-the-scene investigation.

B. Voluntariness

Nor did the trial court err in ruling that defendant's statements to the trooper were voluntary.

A statement obtained from a defendant is admissible only if it was voluntary. People v. DeBaca, 736 P.2d 25 (Colo.1987).

Whether a statement is voluntary depends on the totality of the circumstances, which must demonstrate that the accused's statement is the product of his or her free and rational choice. People v. Taylor, supra; People v. Blankenship,

30 P.3d 698 (Colo. App.2000).

The ultimate question is whether the defendant was compelled by the police to make a statement. People v. Rivas, supra.

The burden is on the prosecution to establish by a preponderance of the evidence that the statements were made voluntarily. People v. Taylor, supra.

Defendant contends that the deputy had told him he was not under arrest, thereby impliedly promising that defendant was immune from criminal liability and was a witness rather than a suspect. Accordingly, defendant asserts he was tricked into making the statements. We reject this contention.

A reviewing court is bound by the trial court's findings of fact on voluntariness. People v. DeBaca, supra.

Here, the trial court's findings that there were no "threats, violence, promises or any undue influence" are supported by the record, which contains no evidence of coercive police activity. After the deputy was injured, defendant had dressed, rendered assistance, and waited with the deputy for help to arrive. When the trooper arrived, defendant was in his own home, and he had been told he was not under arrest. He was not under any physical restraints, and he had been awake for approximately half an hour.

Thus, we conclude that the trial court properly ruled that defendant's statement was voluntary.

II. Eleven-Member Jury

Defendant next contends that the trial court should have ordered a mistrial when one of the twelve jurors became ill, leaving only eleven. Specifically, he asserts that his waiver of his right to twelve jurors was not in writing, as required by statute, and therefore, he was deprived of his substantive right to a fair trial. We disagree.

A trial court has broad discretion in deciding whether to grant a mistrial, and its decision will not be overturned absent a gross abuse of discretion and prejudice to a party. A mistrial is a drastic remedy and is warranted only if the prejudice to the defendant cannot be remedied by other means. People v. Fears, 962 P.2d 272 (Colo.App. 1997).

In Colorado, every person accused of a felony has a statutory right to be tried by a jury of twelve. See § 18-1-406(1), C.R.S. 2002. This right may be waived if a juror becomes unable to serve.

If no alternate juror is available to replace the juror, the parties at any time before verdict may stipulate in writing with court approval that the jury shall consist of any number less than twelve, and the jurors thus remaining shall proceed to try the case and determine the

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