People v. Brewer

• Decision Date: 07 November 1985
• Docket Number: No. 83CA0481,83CA0481
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ronald Ray BREWER, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 583

720 P.2d 583

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ronald Ray BREWER, Defendant-Appellant.

No. 83CA0481.

Colorado Court of Appeals Div. II.

Nov. 7, 1985.

Rehearing Denied Dec. 12, 1985.

Certiorari Denied June 9, 1986.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Virginia Byrnes Horton, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Bluestein, Simon & Schulman, Lawrence J. Schulman, Denver, for defendant-appellant.

SMITH, Judge.

Defendant, Ronald R. Brewer, appeals a judgment of conviction and sentence entered upon a jury verdict finding him guilty of escape. We affirm the judgment of conviction but set aside the sentence and remand for resentencing.

In May 1982, defendant was in custody of the Denver County Jail awaiting trial on felony charges of attempted first degree murder, first degree assault, attempted aggravated robbery, second degree assault, and conspiracy. On May 18, 1982, defendant was taken to Denver General Hospital to receive medical treatment. At the hospital two men armed with a shotgun entered defendant's examining room and forced the deputy sheriff guarding defendant to release him.

An immediate investigation led the police to believe defendant was in a northeast Denver residence. A heavily armed police special services unit surrounded the house in which police suspected defendant was hiding.

Shortly thereafter, a police negotiator made telephone contact with defendant in an attempt to have him surrender peacefully to officers. During the negotiation defendant made inculpatory statements to the police negotiator without his having first been given a Miranda advisement. As a result of the forty-five minute negotiation, defendant peacefully surrendered to officers.

I.

Defendant first contends the trial court erred in failing to suppress his statements to the police negotiator. We disagree.

It is defendant's position that he was in police custody at the time the negotiator talked to him on the telephone because the house was surrounded by a heavily armed special services unit and he was not free to leave the house. On that premise, he argues the statements made by him without a Miranda advisement were inadmissible. Defendant also argues that his statements were involuntary because they were induced by a promise that the criminal justice system would be fair to him if he continued to talk to the officer. The trial court rejected the defendant's arguments and found defendant voluntarily spoke with the officer in a non-custodial setting that did not require Miranda warnings.

A.

For purposes of determining when advisement of an accused pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) is required, custodial interrogation is not limited to interrogation that occurs at the police station. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). However, questioning that occurs in a "coercive environment" does not always require Miranda warnings. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). The test of when a person is in custody is whether a reasonable person in the defendant's circumstances would have believed that he was free to leave the officer's presence. People v. Thiret, 685 P.2d 193 (Colo.1984); People v. Johnson, 671 P.2d 958 (Colo.1983).

The court must consider the totality of the circumstances surrounding the interrogation in determining what belief was reasonable. Among the many factors to be considered in this determination are the time, place, and purpose of the interrogation. People v. Thiret, supra; People v. Johnson, supra.

When the interrogating officer is not physically in the presence of the accused and makes contact with the accused on the telephone, the officer does not have the control over the accused necessary to subjugate him to the psychological pressures of concern in Miranda. See United States v. Mesa, 638 F.2d 582 (3rd Cir.1980). See also People v. Corley, 698 P.2d 1336 (Colo.1985).

Here, defendant could not have freely left the house because it was surrounded by a heavily armed special services team. However, defendant was not in a situation that presented a danger of compelling him to incriminate himself. Defendant controlled the police department's ability to communicate with him since he could hang up the phone at any time. This ability, in essence, gave him the power to leave the officer's presence at any time. Hence, like the situation in United States v. Mesa, supra, the lack of the police officer's presence and the defendant's ability to control the situation removed the compelling pressures of a custodial interrogation which work to undermine the individual's will to resist. Accordingly, the trial court did not err in ruling that the statements were not rendered inadmissible by virtue of the absence of a Miranda advisement.

B.

To be admissible in evidence, a confession must be shown to be free and voluntary, made without threats of violence or promises of special consequences and made without the exertion of improper influences. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); People v. Bookman, 646 P.2d 924 (Colo.1982). The voluntariness of the confession must be determined by looking at the totality of the circumstances surrounding the giving of the statement. People v. Bookman, supra. On appeal, the trial court's finding of fact on the voluntariness issue will not be reversed if the findings are supported by adequate evidence in the record. People v. Fordyce, 200 Colo. 153, 612 P.2d 1131 (1980).

Here, it was not an improper promise to tell defendant that the criminal justice system would treat him fairly. Accordingly, the record supports the trial court's finding that the defendant's statements were made voluntarily.

II.

At trial defendant offered to stipulate that he was being held on unspecified felonies at the time of the incident, and he contends that therefore the trial court erred in admitting evidence on the specific nature of those felonies. We disagree.

Defendant argues that in light of his offered stipulation, the prejudicial nature of the evidence outweighed its probative value. However, the fact that defendant offered to stipulate that he was being held on a felony at the time of escape does not make the evidence regarding the names of the felonies inadmissible. See People v. White, 199 Colo. 82, 606 P.2d 847 (1980). Whether the probative value of proffered evidence is outweighed by its prejudicial effect is within the discretion of the trial court, and its determination will not be disturbed on appeal absent an abuse of discretion. People v. Corbett, 199 Colo. 490, 611 P.2d 965 (1980).

Here, it was necessary to bring out the name of the crimes on which defendant was held to prove the "charged with a felony" element of escape. See § 18-8-208(3), C.R.S. (1978 Repl. Vol. 8); People v. Velarde, 657 P.2d 953 (Colo.1983). The court limited the prejudicial effect of this evidence by only allowing testimony as to the names of the felonies and not admitting the felony complaint or allowing testimony on the facts supporting the underlying charges. Under these circumstances, the trial court did not abuse its discretion in ruling that the probative value of the evidence outweighed its prejudicial effect.

III.

Defendant next contends the trial court erred in failing to instruct the jury properly on all elements of the offense. We disagree.

In its instruction to the jury on the elements of the charged crime of escape, the court specified only that one element was for defendant to be held for "a felony." Defendant argues that in that instruction the court should have named the actual felonies on which defendant was being held. However, in another instruction, the jurors were given the names of all five felonies on which defendant was being held, and they were instructed that these crimes were classified as felonies.

In determining the propriety of any one instruction, the instructions must be considered as a whole, and if the instructions as a whole properly instruct a jury, then there is no error. Chambers v. People, 682 P.2d 1173 (Colo.1984).

Here, the elemental instruction given was in the language of the statute and thus was adequate to advise the jury of the nature of the offense. People v. R.V., 635 P.2d 892 (Colo.1981). And, any perceived error caused by omitting the names of the underlying felonies from the elemental instruction was cured by the instruction that told the jury that each of the named underlying crimes were felonies.

IV.

The trial court instructed the jury that the crime of escape must be committed knowingly and voluntarily, and it properly defined the knowingly element but refused defendant's instruction defining "voluntarily," and declined to give its own definition of the word, holding that such definition was not required. Defendant contends that, by such action, the trial court erred.

In view of defendant's request for an instruction on the definition of voluntary, it would have been better practice to instruct the jury in accordance with the definition given in § 18-1-401(9), C.R.S. (1978 Repl. Vol. 8).

However, in the context at issue here, the word is one of common understanding. Also, there was no evidence presented to indicate that defendan...