People v. District Court In and For First Judicial Dist., Jefferson County, Colo., s. 89SA197

• Decision Date: 16 January 1990
• Docket Number: Nos. 89SA197,89SA198,s. 89SA197
• Citation: 785 P.2d 141
• Parties: PEOPLE of the State of Colorado, Petitioner, v. DISTRICT COURT IN AND FOR the FIRST JUDICIAL DISTRICT, JEFFERSON COUNTY, COLORADO; and The Honorable William DeMoulin, One of the Judges Thereof, Respondents. PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Mark Nicholas MATSON, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 141

785 P.2d 141

PEOPLE of the State of Colorado, Petitioner, v. DISTRICT COURT IN AND FOR the FIRST JUDICIAL DISTRICT, JEFFERSON COUNTY, COLORADO; and The Honorable

William DeMoulin, One of the Judges

Thereof, Respondents.

PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Mark Nicholas MATSON, Defendant-Appellee.

Nos. 89SA197, 89SA198.

Supreme Court of Colorado,

En Banc.

Jan. 16, 1990.

Donald E. Mielke, Dist. Atty., and Donna Skinner Reed, Sr. Deputy Dist. Atty., Golden, for petitioner and plaintiff-appellant.

Pozner Hutt Gilman Kaplan, P.C., David S. Kaplan and Shelley Gilman, Denver, for respondents and defendant-appellee.

Justice VOLLACK delivered the opinion of the Court.

The People bring this appeal under C.A.R. 4.1 ¹ to challenge the trial court's suppression of defendant's statements. The People also petition this court under C.A.R. 21 ² for a rule to show cause why the trial court should not be prohibited from excluding the defendant's statements under the provisions of CRE 403. ³ The trial court entered both rulings in a pretrial hearing on defendant's motion to suppress statements. We consolidate the appeal and original proceeding. We reverse in 89SA198 and make the rule absolute in 89SA197.

I.

In June of 1988, the Jefferson County Sheriff's Department (the Sheriff's Department) was investigating allegations made by two boys that they had been sexually assaulted by the defendant Mark Matson (defendant). In connection with this investigation, a sergeant with the Sheriff's Department contacted the defendant and arranged to meet with him at the Sheriff's Department on June 7, 1988. At the Sheriff's Department the sergeant informed the defendant that he was a suspect in a sexual assault case involving two boys under the age of fifteen, and that the sexual assaults occurred in December 1987. The sergeant advised the defendant of his Miranda ⁴ rights, which he waived.

During the interview, the defendant admitted giving the two boys a ride to one of the boys' homes. The defendant denied putting his hand on either of the boys' crotch areas, and told the sergeant that the boys were sober when he let them out of the car, and that he had not given liquor to either boy. At the close of the interview the sergeant asked the defendant if he would be willing to take a polygraph examination. The sergeant told him that if he passed the polygraph test, "we'll look somewhere else in this." The defendant agreed to return to the Sheriff's Office at a later date to take the polygraph test.

Prior to taking the polygraph test, the defendant talked to a friend who was an attorney. The defendant did not actually hire the attorney, but merely received free advice from him. The attorney told the defendant that he could take the polygraph test if he wanted to since "it's inadmissible in court." The attorney also told him that although he had consented to take a polygraph test, he did not have to go through with it.

On June 21, 1988, the defendant returned to the Sheriff's Office to take the polygraph test. The polygraph technician, who was employed by the Sheriff's Department, gave the defendant a written consent form which included a Miranda advisement. The defendant read the form and signed both the consent and the waiver portions of the form. During the pre-test interview the defendant told the polygraph technician that he discussed with the boys a recent trip of his to Las Vegas, and that he talked to the boys about "floating," an apparent relaxation technique. The boys had told the Sheriff's Office earlier that they had a conversation with the defendant on these two topics and that, while showing them a particular floating technique, the defendant touched their crotch areas.

The defendant told the polygraph technician during the pre-test interview that the boys had been drinking before they got into his car. The boys brought a bottle of whiskey with them to the car. After the boys got out of the car the defendant noticed that another bottle of whiskey he had been keeping in the back seat was missing. The defendant explained to the polygraph technician that he had not told the sergeant at the June 7 interview about the alcohol because he was confused by the sergeant's questions.

After administering the polygraph test the polygraph technician concluded that the defendant was not telling the truth. The polygraph technician informed him that he did not believe his story and asked the defendant if he could explain why his test came out the way it did. The defendant did not respond to the polygraph technician's comment.

On August 8, 1988, the Jefferson County District Attorney filed a complaint against the defendant charging him with two counts of class four felony sexual assault on a child, section 18-3-405, 8B C.R.S. (1986), two counts of class four felony enticement of a child, section 18-3-305, 8B C.R.S. (1986 & 1989 Supp.), one count of class one misdemeanor sexual assault in the third degree, section 18-3-404, 8B C.R.S. (1986), ⁵ and two counts of misdemeanor providing liquor to a minor, subsection 12-47-128(1)(a), 8B C.R.S. (1986).

The defendant filed a motion to suppress his statements and the trial court held a hearing on the motion. The trial court granted defendant's motion to suppress as to all statements made during the polygraph test, the pre-test interview, and the post-test interview. The trial court found that the statements were voluntarily given under the mistaken impression that they would be inadmissible at trial. The trial court also ruled sua sponte that the statements were inadmissible under C.R.E. 403 because the probative value of the statements was far outweighed by their unfair prejudice to the defendant.

II.

The defendant contends that this court should dismiss the People's appeal because the statements are not a substantial part of the proof of the charges pending against the defendant. We disagree.

In an interlocutory appeal the People must certify to this court that the evidence suppressed by the trial court "is a substantial part of the proof of the charge pending against the defendant." C.A.R. 4.1. The People filed in this court a certification in the proper form containing the necessary language required by C.A.R. 4.1.

Our independent review of the record provided on appeal convinces us that the statements suppressed by the trial court constitute a substantial part of the proof of the charges pending against the defendant because the credibility of the victims and the defendant will be of central importance to the trier of fact. See People v. Harding, 671 P.2d 975, 979 (Colo.App.1983), aff'd in part, cert. dismissed in part, 708 P.2d 1354 (Colo.1985) (certiorari not granted on question of substantial evidence test under C.A.R. 4.1).

III.

We will consider first the issue raised by the interlocutory appeal of the trial court's suppression of the statements made by the defendant during the polygraph test.

To determine whether a statement is voluntary a court must evaluate the totality of the circumstances surrounding the making of the statement. People v. Sparks, 748 P.2d 795, 797 (Colo.1988); People v. Cummings, 706 P.2d 766, 769 (Colo.1985); People v. Raffaelli, 647 P.2d 230, 235 (Colo.1982); see also Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986); Brown v. Illinois, 422 U.S. 590, 598, 95 S.Ct. 2254, 2259, 45 L.Ed.2d 416 (1975).

The prosecution bears the burden of establishing by a preponderance of the evidence that the defendant's statement was voluntary. Cummings, 706 P.2d at 769; Raffaelli, 647 P.2d at 235. The trial court must determine whether the statement was the "voluntary product of a free and deliberate choice rather than [the product of] intimidation, coercion, or deception." Moran, 475 U.S. at 421, 106 S.Ct. at 1141; see Colorado v. Connelly, 479 U.S. 157, 169-70, 107 S.Ct. 515, 523, 93 L.Ed.2d 473 (1986) (the voluntariness of a Miranda waiver depends on the absence of police overreaching and coercion). The defendant should be aware of the rights he waives, Burbine, 475 U.S. at 421, 106 S.Ct. at 1141, but the fact the defendant may have a mistaken belief, or does not understand every possible consequence that may result from his waiver, does not negate the admissibility of the statement. See Colorado v. Spring, 479 U.S. 564, 573-74, 107 S.Ct. 851, 857, 93 L.Ed.2d 954 (1987); Connecticut v. Barrett, 479 U.S. 523, 530, 107 S.Ct. 828, 833, 93 L.Ed.2d 920 (1987).

IV.

(A)

In the present case the defendant was an intelligent, well-educated person. The defendant testified that he knew he did not have to take the polygraph examination. He testified he was nervous at the time of the examination but admitted he attended the examination voluntarily and of his own "free choice." The record shows without contradiction that the defendant understood his rights, was not confused or frightened by the examination, was not under the influence of medication or intoxicating liquor, was not threatened or coerced, and understood everything that was going on prior to, during, and after the polygraph examination.

(B)

We held in People v. Anderson, 637 P.2d 354, 362 (Colo.1981), that evidence of polygraph results is per se inadmissible in a criminal trial. We reached this conclusion because of the inherent unreliability of polygraph results. Our analysis in Anderson of the potential sources of unreliability in polygraph examinations did not lead us to conclude that all statements made in connection with polygraph examinations are involuntary. The factors that make the results of polygraph examinations unreliable and inadmissible do not necessarily apply to statements made to a polygraph technician during pre-examination interviews. Cummings, 706 P.2d at 770.

The uncontradicted credible evidence in the record does not support the trial court's finding that the defendant's statements to the polygraph examiner were inadmissible. People...