People v. Cummings, 85SA39

• Decision Date: 23 September 1985
• Docket Number: No. 85SA39,85SA39
• Citation: 706 P.2d 766
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Pete James CUMMINGS, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 766

706 P.2d 766

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Pete James CUMMINGS, Defendant-Appellee.

No. 85SA39.

Supreme Court of Colorado.

Sept. 23, 1985.

James F. Smith, Dist. Atty., Seventeenth Judicial Dist., Steven L. Bernard, Chief Trial Deputy Dist. Atty., Brighton, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, Ronald M. Aal, Deputy State Public Defender, Brighton, for defendant-appellee.

DUBOFSKY, Justice.

In this interlocutory appeal under C.A.R. 4.1, the People assert that the Adams County District Court erred in suppressing as involuntary certain statements made by the defendant and in suppressing certain evidence found during the execution of search warrants. We reverse.

The bodies of a man and a woman, apparently murder victims, were found in a parked Toyota Corolla on September 4, 1984. Both victims had been shot and stabbed numerous times. Late that afternoon, the defendant, Pete James Cummings, called the Aurora Police Department after seeing a newcast about the discovery of the bodies and stated that he could identify them. Meanwhile, police detectives had identified one of the victims as Joe Watkins, and while the detectives were searching Watkins' residence late the same afternoon, the defendant called to speak to Watkins. The detective who answered the phone identified himself as a police officer, and the defendant asked the officer to come to the defendant's house to speak with him. Shortly thereafter, two detectives went to the defendant's home and talked with him for approximately one hour. Gloria Falls, whom the defendant introduced as his wife, was present during the conversation. ¹ The defendant identified the murder victims as his niece and a friend, Watkins, and stated that they had been at the defendant's house the evening before the bodies were found.

The next morning two police detectives went to the defendant's home and asked him to come with them to the Aurora police station. The defendant agreed, and the officers and the defendant arrived at the station shortly before 10:00 a.m. The officers escorted the defendant to a small interview room containing a table and chairs. One of the detectives informed the defendant of his Miranda rights and told him that he was not required to remain at the police station and that he could leave at any time. The defendant signed a waiver of his rights and spoke with the detective for about half an hour.

The detective and a police sergeant then asked the defendant to sign a consent form allowing them to search his house, and the defendant signed the form. The defendant remained at the police station with another officer while the detective and the sergeant went to search his house. While at the station, the defendant encountered members of the victims' families who yelled at him and tried to hit him.

At about 1:00 p.m., the police officers returned from the defendant's home and reminded the defendant of his Miranda rights, again advising him that he could leave the police station at any time. The detective spoke with the defendant for about an hour and a half, questioning him about discrepancies in his various statements and about evidence that might link him to the scene where the bodies were found including bloody fingerprints on the Toyota, a .22 caliber bullet found next to the mattress of a waterbed in the defendant's home, and the fact that carpet covering the woman's body in the car matched carpet on the patio and in the garage at the defendant's home. The detectives had discovered that a portion of the carpet covering the defendant's garage floor had been removed, revealing a section of foam carpet pad that was the same size as the piece of carpet covering the body.

At the suppression hearing, the detective testified that he did not yell at the defendant during the afternoon interview, but that he might have raised his voice when he told the defendant that he did not believe him because of the discrepancies in his statements. During the afternoon interview, the defendant provided different information than he had at the earlier interviews and wrote out a statement at the request of the detective, although the detective told him that he was not compelled to do so and that the statement might be used against him in court.

The defendant requested a polygraph examination, and the detective arranged an examination with the police department's polygraph technician. The detective also provided lunch for the defendant before the examination. The polygraph technician preceded the polygraph testing with a repeat of the defendant's Miranda rights and a pre-examination interview, which were tape-recorded and transcribed. The defendant made further statements about the evening preceding the discovery of the victims' bodies during the pre-examination interview. The interview and polygraph examination lasted almost two hours. Afterward, the police detective informed the defendant that he was a suspect in the case, and, without questioning the defendant further, arranged a ride home for him.

A few weeks later, on September 28, 1984, another detective obtained a warrant to search the defendant's house. The affidavit accompanying the application for the warrant included evidence obtained from the interviews with the defendant and indicated that testing had revealed that the bullet found in the waterbed matched a bullet removed from one of the victims' bodies. The warrant specified certain property that could be seized and also allowed the police to measure the interior house and garage dimensions and take photographs of the interior of the house and garage. During the search, conducted on September 28th, the detective seized a jar of .22 caliber bullets sitting in plain view on a dresser next to the waterbed.

After this search, police officers spoke with Gloria Falls. Falls told the officers that on the evening of September 3, 1984, the victims had visited the house where Falls and the defendant lived. She stated that the defendant became upset, obtained a rifle from the bedroom, and shot the victims who were seated on a brown couch in the living room. The defendant then dragged the bodies to the garage, came back to the kitchen to get a knife "to finish Joe off," and returned to the garage. According to Falls, the defendant put the bodies in the Toyota and drove it to the place where it was discovered the next day. An affidavit accompanying an application for a second search warrant detailed this conversation.

The second search warrant, also obtained on September 28th, authorized a search of the house and garage for, among other things, a "brown fur couch and bloodstains." The affidavit accompanying the search warrant indicated that officers had seen bloodstains on foam carpet padding in the garage. Later on September 28th, while looking in the garage for bloodstains, a police officer explored among the rafters where bloodstained rags might have been hidden. He noted that what appeared to be a shelf above a table in the garage was actually a piece of plywood nailed vertically between two wallstuds, with three containers balanced on the edge of the plywood against the wall of the garage. The officer noted a possibly bloodstained nail above the plywood. He removed the containers and pulled the plywood away from the wall, finding something wrapped in black mesh behind the plywood. After unraveling the black mesh, he found and seized a .22 caliber rifle.

After the defendant was charged with the two murders, he filed a motion to suppress all the statements he made to police officers and the evidence seized during the two searches on September 28th. ² The prosecution wished to introduce at trial the defendant's statements on September 5th to the polygraph examiner during the interview preceding the polygraph test, after editing the statements to remove any reference to the polygraph. The district court relying on People v. Anderson, 637 P.2d 354 (Colo.1981), in which we held that evidence of polygraph results is per se inadmissible in a criminal trial, held that none of the statements the defendant made to the polygraph examiner were admissible because the nature of the testing atmosphere made them involuntary. The court also suppressed the statements made by the defendant in the interview during the afternoon of September 5th, after the consent search of his house, finding that they were not voluntary because they were obtained after the defendant had been at the police station for a long time. The district court suppressed the jar of .22 caliber bullets and the rifle as well because it concluded that these items were not found in plain view during a search authorized by warrant. The People request reversal of each of the district court's suppression rulings.

I.

The People first protest the trial court's suppression of the defendant's statements during the September 5th afternoon interview as involuntary. To determine whether a statement is voluntary, a court must evaluate the totality of the circumstances surrounding the making of the statement. People v. Raffaelli, 647 P.2d 230 (Colo.1982); People v. Scott, 198 Colo. 371, 600 P.2d 68 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The prosecution bears the burden of establishing by a preponderance of the evidence that a defendant's statement was voluntary. Raffaelli, 647 P.2d at 235. Statements may not be admitted if they were obtained through promises, threats, violence, or any other improper influence. People v. Freeman, 668 P.2d 1371 (Colo.1983); Scott, 198 Colo. at 373, 600 P.2d at 69; People v. Quintana, 198 Colo. 461, 464, 601 P.2d 350, 351 (1979); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The fact of custody alone is not sufficient to render statements involuntary, People v. Helm, 633 P.2d 1071 (Colo.1981), and questioning a suspect over a period of time does not...