People v. Cowart

• Decision Date: 13 December 2010
• Docket Number: No. 10SA214.,10SA214.
• Citation: 244 P.3d 1199
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant v. Tommy COWART, Defendant-Appellee.
• Court: Colorado Supreme Court

244 P.3d 1199 The PEOPLE of the State of Colorado, Plaintiff-Appellant v. Tommy COWART, Defendant-Appellee. No. 10SA214. Supreme Court of Colorado, En Banc. Dec. 13, 2010.

Carol Chambers, District Attorney, Eighteenth Judicial District, David C. Jones, Senior Deputy, Centennial, Colorado, Attorneys for Plaintiff-Appellant.

Douglas K. Wilson, Public Defender, Scott Schultz, Deputy Public Defender, Centennial, Colorado, Attorneys for Defendant-Appellee.

Justice MARTINEZ delivered the Opinion of the Court.

In this interlocutory appeal filed pursuant to C.A.R. 4.1, the People challenge the trial court's suppression of statements made by the defendant Tommy Cowart. The trial court found that, for the purposes of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Cowart was in custody during a pre-arrest interview at his home on the night of August 29, 2009. Because the lead investigator, Marshal Sean Daniels, failed to adequately advise the defendant of his Miranda rights prior to formal arrest, the court suppressed all statements made during the pre-arrest interview. The trial court's order also prohibited Marshal Daniels from testifying during the People's case in chief.

We reverse the suppression order. Applying an objective test for determining custody, see People v. Matheny, 46 P.3d 453 (Colo.2002), we find that Cowart was not in custodyduring the pre-arrest interview with Marshal Daniels. Moreover, we find no legal basis supporting the trial court's decision to prohibit the People from calling Marshal Daniels during its case in chief.

I.

On August 29, 2010, Hugo Town Marshal Sean Daniels was dispatched to a residence in response to an alleged sexual assault. At approximately 9:00 a.m., Marshal Daniels arrived at the residence of S.L.'s parents. During the ensuing interview with S.L., she alleged that she had been raped by her uncle, Cowart.

At approximately 8:45 p.m. that evening, Marshal Daniels went to Cowart's home with three other police officers. Three of the four officers were in full uniform and armed. Upon finding that Cowart was not at home, Marshal Daniels contacted a neighbor, Hope Belzer, and asked her to call Cowart to inquire when he would be home. During this phone call, Cowart told Belzer that he would be home shortly and asked if the police were there.

Approximately ten minutes later, Cowart arrived at his house. Marshal Daniels approached Cowart and asked if he could talk with him. Cowart responded, "[s]ure, no problem" and handed one of the officers the keys to the home. The officers then assisted Cowart and his wife, who was in a wheelchair, into the residence. With Cowart's permission, Marshal Daniels and two officers went into the residence.

Marshal Daniels then asked Cowart to sit down and began asking questions. During the interview, Marshal Daniels stood about three feet away from Cowart while the two other officers stood near the front door. None of the officers touched Cowart or physically directed his movements. Cowart was not told that he was under arrest or that he was not free to leave. Cowart's wife remained present during the interview and sat across from Cowart.

During the interview, Marshal Daniels tone was conversational. He asked a mixture of open questions and more specific follow-up questions. While Marshal Daniels freely admitted that his questions were designed to elicit incriminating testimony, he did not confront Cowart with the evidence of sexual abuse or otherwise accuse him of any crime. Nonetheless, during the interview, Marshal Daniels noticed that Cowart appeared nervous and shaky.

Near the end of the interview, Marshal Daniels asked Cowart if he could see the underwear he had on. In response, Cowart dropped his pants. As a result, Marshal Daniels was able to determine that Cowart's underwear matched the description given by S.L. earlier that day.

At this point, Marshal Daniels stepped outside and informed one of the officers that he had probable cause to arrest. He then returned into the home, arrested Cowart for the sexual assault of S.L., and advised Cowart of his Miranda rights. Cowart expressly stated that he no longer wanted to talk to law enforcement and requested an attorney.

On November 11, 2009, Marshal Daniels re-contacted Cowart while he was being held in custody at the Lincoln County Jail. Even though Marshal Daniels knew that Cowart had refused to speak with officers and was represented by counsel, Marshal Daniels did not attempt to reach Cowart's attorney, but rather interviewed Cowart for over an hour in a secured room.

Prior to trial, Cowart filed a motion to suppress, among other things, statements made during the pre-arrest and jail-house interviews with Marshal Daniels. Cowart argued that the police had failed to provide him with a Miranda advisement prior to the pre-arrest interview in violation of his Fifth Amendment rights. Cowart also argued that the jailhouse interview violated his Fifth and Sixth Amendment rights. The People conceded that the jailhouse interview did violate Cowart's Fifth and Sixth Amendment rights. The People also conceded that Cowart was interrogated within the meaning of Miranda during the pre-arrest interview. However,the People argued that a pre-arrest Miranda advisement was unnecessary because the statements made by Cowart during the pre-arrest interview were voluntary and non-custodial.

The trial court conducted hearings on May 7, 17, and June 2, 2010. In a June 16 Written Order, the trial court found that Cowart was in custody at the time of the pre-arrest interview for the purposes of Miranda. The trial court stated that Cowart "was not free to leave his home, nor were the Officers going to honor a request for them to leave...." Moreover, the trial court noted that Cowart was "nervous and shaking during the interview." Accordingly, the trial court concluded that while Cowart's answers were given voluntarily, he was "effectively in custody and should have been read his Miranda rights." Because no Miranda advisement was given prior to arrest, the trial court suppressed all of the statements made by Cowart during the pre-arrest interview. Accompanying its suppression ruling, the trial court also prohibited the People from calling Marshal Daniels during its case in chief. The trial court did not, however, provide a clear legal basis for this prohibition.

The People filed this interlocutory appeal to challenge the trial court's suppression of Cowart's pre-arrest statements. The People also challenge that part of the trial court's order prohibiting it from calling Marshal Daniels to testify during its case in chief. We consider each of these issues in turn.

II.

We reverse the order suppressing the statements made by Cowart during the pre-arrest interview. Considering the totality of the circumstances, no objective person in the circumstances presented here would have found his freedom of action deprived to the degree associated with formal arrest. See Matheny, 46 P.3d at 468. Cowart was not therefore in custody during the pre-arrest interview. Accordingly, a Miranda advisement was not necessary prior to the formal arrest.

A.

Whether a particular defendant was in custody for Miranda purposes involves an objective test requiring the court to determine "whether a reasonable person in the defendant's position would consider himself to be deprived of his freedom of action to the degree associated with a formal arrest." Matheny, 46 P.3d at 468; see also, People v. Hankins, 201 P.3d 1215, 1218 (Colo.2009); People v. Trujillo, 785 P.2d 1290, 1293 (Colo.1990). In making this determination, a court is to consider the totality of the circumstances. Id.; People v. Pascual, 111 P.3d 471, 476 (Colo.2005). Some of the factors a court should evaluate include:

(1) the time, place, and purpose of the encounter; (2) the persons present during the interrogation; (3) the words spoken by the officer to the defendant; (4) the officer's tone of voice and general demeanor; (5) the length and mood of the interrogation; (6) whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; (7) the officer's response to any questions asked by the defendant; (8) whether directions were given to the defendant during the interrogation; and (9) the defendant's verbal or nonverbal response to such directions.

Matheny, 46 P.3d at 465-66. The court may also consider whether the officers told the defendant he was free to leave. See People v. Holt, 233 P.3d 1194, 1197 (Colo.2010).

The court may not, however, consider subjective factors in making a custody determination. In particular, the court may not consider the " 'unarticulated thoughts or views of the officers and suspects' because the custody test is objective in nature." Hankins, 201 P.3d at 1219 (quoting People v. Elmarr, 181 P.3d 1157, 1162 (Colo.2008)); see also Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). Similarly, it would be inappropriate for the individual characteristics of the defendant to bear on the objective custody determination. See Yarborough v. Alvarado, 541 U.S. 652, 668, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ( "[T]he custody inquiry states an objective rule designed to give clear guidance to the police, while consideration of a suspect's individual characteristics—including his age—could be viewed as creating a subjective inquiry.").

When a trial court rules on a motion to suppress incriminating statements due to a Miranda violation, it engages in both fact-finding and law application. Hankins, 201 P.3d at 1218. We defer to the trial court's findings of fact, but we review de novo whether those facts establish that the suspect was in custody during interrogation. Matheny, 46 P.3d at 462.

B.

We now turn to apply the above factors to the present case. Considering the totality of the circumstances, we are persuaded that Cowart was not in custody during the pre-arrest...