People v. Close, 91CA0947

• Decision Date: 01 July 1993
• Docket Number: No. 91CA0947,91CA0947
• Citation: 867 P.2d 82
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James C. CLOSE, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 82

867 P.2d 82

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James C. CLOSE, Defendant-Appellant.

No. 91CA0947.

Colorado Court of Appeals,

Div. V.

July 1, 1993.

Rehearing Denied Aug. 5, 1993.

Certiorari Denied Feb. 14, 1994.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Linda C. Michow, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Kathleen A. Lord, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge DAVIDSON.

Defendant, James C. Close, appeals from the judgments of conviction entered on jury verdicts finding him guilty of criminal mischief, first degree criminal trespass, theft, conspiracy to commit criminal mischief and theft, aggravated robbery, attempted aggravated robbery, second degree assault, ethnic intimidation, and conspiracy to commit assault and ethnic intimidation. We affirm, but remand for resentencing.

Around midnight on October 6, 1990, defendant and three companions drove to a park near Teikyo Loretto Heights University in Denver. They vandalized and stole speakers from a car parked nearby, then wandered through the park armed with baseball bats and sticks. Upon finding a group of six Japanese students, defendant and his friends surrounded the group, ordered them to lie down, demanded identification and personal items, and beat them with the bats and sticks. The attack continued until the victims were able to escape.

I.

A.

Defendant first contends that the trial court erred in denying his motion to suppress custodial statements on the grounds that the police did not "scrupulously honor" his right to cut off questioning after he had been advised of his Miranda rights and had invoked his right to remain silent. We disagree.

The pertinent undisputed facts are as follows. The police first contacted defendant at the Douglas County jail where he was being detained for an unrelated traffic offense. He was taken to an interview room and advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant told the police he did not want to discuss his case, signed "Nope" on the Miranda advisement form, and the interview terminated. The police then arranged to transport the defendant to the Denver county jail.

It took approximately 45 minutes to transfer the defendant from the Douglas county jail to Denver, during which time the defendant talked casually with the police about other matters. At the police station, defendant "had been very conversational" so the police asked him again if he wanted to discuss the case. He said, "Yes," and was then readvised of his Miranda rights. Approximately one hour and forty minutes had elapsed since the first advisement. The defendant said he understood his rights, signed the form, and made an oral and a written statement. After a third advisement, he also made a videotaped statement.

The trial court denied defendant's motion to suppress, concluding that the statements were "voluntary" under "the totality of the circumstances."

Defendant contends, and the People concede, that the trial court used the wrong legal standard to determine whether the defendant's statements should have been suppressed. "[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.' " Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 321 (1975); People v. Quezada, 731 P.2d 730 (Colo.1987). Thus, we agree that the trial court here used an incorrect standard in ruling on the suppression motion.

Defendant asserts that application of the correct legal standard requires that we determine as a matter of law that the police did not scrupulously honor defendant's request to cut off questioning. In the alternative, citing People v. McKinstrey, 852 P.2d 467 (Colo.1993), he suggests that we should remand the issue to the trial court to reconsider its ruling under the correct standard.

However, applying the correct legal standard to the trial court's adequately supported findings of fact, the record will support no result other than that the questioning of defendant was consistent with a scrupulous observance of his right to cut off questioning at any time and, therefore, we affirm the trial court's ruling. See People v. Hutton, 831 P.2d 486 (Colo.1992).

In determining whether a defendant's right to cut off questioning has been scrupulously honored by the police, consideration of the following factors on a case by case basis is appropriate: (1) whether the police immediately ceased the initial interrogation upon the defendant's request; (2) whether questioning was resumed only after the passage of a significant period of time; (3) whether a fresh set of Miranda warnings was given prior to the second interrogation; and (4) whether the subject of the second interrogation differed from that of the first interrogation. No one factor is conclusive nor are the factors exhaustive. People v. Quezada, supra.

Here, defendant concedes that the interviewing officers ended the initial interview immediately upon his request and that a fresh set of Miranda warnings preceded the second interrogation. Moreover, in the context of finding that defendant's statements were voluntary, the trial court stated that it had considered:

the totality of the circumstances, [that is], the atmosphere, the events, the defendant's conduct before, during the statement, the defendant's mental condition, any events or occurrences surrounding the statement.

Specifically noting the lengthy experience of the officers, the trial court indicated that they had taken care not to put the evidence into jeopardy by a "violation of defendant's procedural and substantive rights." From this finding and the tenor of the entire ruling, we infer that the trial court found nothing improper in the officers' conduct during the time surrounding defendant's statements.

We reject defendant's contention that a failure to honor his refusal to discuss the case was conclusively demonstrated by virtue of the second interrogation occurring less than two hours after and by the same officers on the same subject as the initial questioning. See People v. Quezada, supra (second interrogation concerning same crime proper even though only 45 minutes had passed).

Nothing in the record supports the conclusion that the questioning was inconsistent with a scrupulous observance of the defendant's right to cut off questioning at any time. See People v. Quezada, supra.

B.

Additionally, defendant contends that the trial court erred in denying his motion to suppress his statements because they were given after the police "erroneously implied that he was likely to receive a light sentence." We do not agree.

Defendant's contention is based on a videotaped conversation which occurred while one officer had left the room for an advisement form. Although portions of the pertinent conversation are not clear because more than one person was talking at the same time, the following is a transcription of the colloquy as understood by defendant:

Defendant: This is cool. (Laughs) This doesn't bother me too much.

Officer: No, this is the way to handle it.

Defendant: What's the most, what's the most they ever gave somebody for this kind of a charge?

Officer: I really don't know. We'll have to, uh. You know every [set of] circumstances is unique and you've got a clean record, certainly ...

Their conversation was interrupted at this point.

The trial court, after viewing the videotape, found that the response to defendant's inquiry was "particularly neutral," that "[e]ssentially they pass the buck and say that other people, particularly the courts and the jury, will take care of that part, and it depends on what happens at points beyond their involvement in the investigation of the case."

Defendant contends that the trial court's remarks were made in the context of its finding of voluntariness, did not specifically reference the "clean record" comment, and might have been based, in part, on an "incorrect" transcription by the police that indicated that the conversation trailed off just prior to the crucial comment. For purposes of addressing this contention, we assume, as defendant urges, that the officer made this reference to defendant's unblemished record and that the trial court somehow was unaware of it, despite having viewed the videotape. Nonetheless, we conclude, as a matter of law, that the officer's comment did not constitute an implied promise of leniency.

When asked by defendant what sentence might be imposed, the officer's first statement was, "I really don't know." His further comment that "you've got a clean record" was interrupted. It is purely speculative what the officer intended to say after that. Nothing in the conversation indicates an implicit promise to do anything for defendant in exchange for his statement. Importantly, defendant had already given an oral and a written statement. As observed by the trial court, the case against defendant appeared strong at that time, there was no need to make "some compromise with the defendant," nor were these experienced officers likely to make any type of deal in this case without conferring with the prosecutor.

II.

In a pretrial motion, the prosecutor sought to have admitted pursuant to CRE 404(b) evidence of an incident one week earlier in which defendant and some of the same companions had attacked two Japanese students and demanded personal belongings from them. After a hearing on the matter, the trial court found by a preponderance of the evidence that defendant had committed this other crime, see People v. Garner, 806 P.2d 366 (Colo.1991), and permitted this other crime evidence to prove elements of defendant's intent, common plan or scheme, and identity...