People v. Cerezo, 81SA324

• Decision Date: 05 October 1981
• Docket Number: No. 81SA324,81SA324
• Citation: 635 P.2d 197
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Deborah M. CEREZO, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 197

635 P.2d 197

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Deborah M. CEREZO, Defendant-Appellee.

No. 81SA324.

Supreme Court of Colorado, En Banc.

Oct. 5, 1981.

Alexander M. Hunter, Dist. Atty., Peter A. Hofstrom, Chief Deputy Dist. Atty., John E. Maas, Deputy Dist. Atty., Boulder, for plaintiff-appellant.

I. Melvin Tatsumi, Carl F. Manthei, Boulder, for defendant-appellee.

QUINN, Justice.

The People in this interlocutory appeal challenge the ruling of the district court suppressing a custodial statement made by the defendant, Deborah M. Cerezo, to a police detective during the course of a re-interrogation after she previously had invoked her constitutional right to counsel. We affirm the suppression order.

The defendant is charged with murder in the first degree after deliberation, section 18-3-102(1)(a), C.R.S.1973 (1978 Repl.Vol. 8), and conspiracy to commit that offense, section 18-2-201, C.R.S.1973 (1978 Repl.Vol. 8). She moved to suppress three separate statements made by her on February 10, 1981, in the state of Florida. The court denied the motion to suppress the first two statements but granted a motion to suppress the third statement and it is that order which the People contest in this appeal.

The charges in this case arise out of the death of Mary Ann Bryan, who was abducted from a Longmont drugstore on January 28, 1981, and was bludgeoned to death. Her body was found on January 31 in an outhouse along the side of a road approximately 31/2 miles west of the town of Lyons in Boulder County, Colorado. The Boulder County Sheriff's Department investigated the homicide and suspected a contract-murder involving several persons including Herbert David Marant, who was the victim's ex-husband, as well as Bob Landry and the defendant. All the suspects resided in the state of Florida.

In early February Thomas Shomaker and other officers of the Boulder County Sheriff's Department traveled to Florida to investigate the homicide. Several officers of the Sheriff's Department of Broward County, Florida, assisted in the investigation. During the afternoon of February 10, Shomaker and Broward County Detective Don Scarborough went to an apartment complex in West Miami, Florida, in order to question the defendant about a vehicle which she had rented in Denver, Colorado, on January 27, 1981, and which matched the description of the vehicle involved in the abduction of Mary Ann Bryan. During a brief interrogation at her apartment the defendant admitted that she had recently had taken a trip to Colorado with Bob Landry and had rented a vehicle in Denver (the first statement). Officer Shomaker, after telling the defendant that he wanted her to discuss the trip in more detail and to view some pictures, requested her to accompany him for these purposes to the Broward County Sheriff's Office in Fort Lauderdale, Florida.

After arriving at the sheriff's office at about 5:00 p. m., the defendant was brought to an interview room and was advised of her Miranda ¹ rights by Officer Shomaker and Detective Scarborough. She acknowledged her understanding of these rights and agreed to talk to the officers. At 6:00 p. m. she made a statement describing two recent trips to Colorado with Bob Landry and her rental of a motor vehicle on January 27 during the last trip (the second statement). At approximately 6:30 p. m., in the course of this second statement, she stated, "I think I better have a lawyer." The officers at this point left the interview room. No effort was made by the officers to secure legal counsel for the defendant.

There followed a 45 minute discussion among several officers, including Broward County Detective Mark Schlein, about the propriety of any further interrogation in view of the defendant's request for an attorney. Officer Shomaker testified that due to the defendant's request for an attorney he decided any further interrogation would constitute a violation of her rights. He further testified that the consensus among the officers was that an additional statement from the defendant would be important for investigative purposes and that Detective Schlein although realizing any further interrogation might be illegal, decided to obtain a statement. According to Shomaker's testimony, Detective Schlein told the officers during the discussion: "Shomaker's already been removed. He's already broken off his interrogation. Let's remove him completely from the (next) statement, and I'll take whatever heat for (that) statement." Detective Schlein, on the other hand, testified that the decision was made to terminate all interrogation of the defendant and his purpose in later entering the interview room was to look after the defendant's comfort and to ask her whether she had to use the bathroom or wanted a cup of coffee.

It was undisputed that after the officers' discussion about the propriety of further interrogating the defendant, Detective Schlein at 7:30 p. m. entered the interview room where the defendant had been confined alone after giving her previous statement to Officer Shomaker and Detective Scarborough. He provided the defendant with coffee and escorted her to the restroom and then back to the interview room. The defendant then asked Detective Schlein how things looked for her. He told her that she was in the most serious trouble of her life. The defendant asked the detective "What would you do?", to which he responded: "I would either remain completely silent or I would be completely truthful; I would not lie." The defendant next inquired about the probability of a "deal" and, after telling her that there would be no deals, the detective suggested that she think about her situation and he left the room.

Detective Schlein returned to the interview room at 8:30 P.M. and the defendant stated "I would like to talk." After again acknowledging and waiving her Miranda rights, the defendant at 8:41 p. m. gave a lengthy recorded statement describing her role in the killing (the third statement).

The court suppressed the third statement for the following reasons:

"The law is clear that once a person in custody asks for an attorney, all questioning must cease. It is obvious that the Florida detective was determined to get a statement by whatever means, even though Colorado authorities tried to convince him otherwise. This court feels the detective's conduct was contrived and illegal." ²

The People argue that there is no evidence to support the court's finding concerning Detective Schlein's conduct and that the court should have determined under Edwards v. Arizona, --- U.S. ----, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), that the third statement resulted from the defendant's initiation of communication with the police rather than from police interrogation. We are not persuaded by the People's arguments.

There is an evidentiary basis in the record for the court's finding regarding the impropriety of Detective Schlein's conduct. The defendant's statement at 6:30 p. m. that "I think I better have a lawyer" was a clear assertion of her right to counsel. Her statement was almost identical to the language in the Miranda advisement previously given her and there can be no doubt that the officers understood her statement to be a request for an attorney. See People v. Richards, 194 Colo. 83, 568...