People v. Elmarr

• Decision Date: 21 April 2008
• Docket Number: No. 07SA379.,07SA379.
• Citation: People v. Elmarr, 181 P.3d 1157 (Colo. 2008)
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant. v. Kevin Franklin ELMARR, Defendant-Appellee.
• Court: Colorado Supreme Court

181 P.3d 1157

The PEOPLE of the State of Colorado, Plaintiff-Appellant. v. Kevin Franklin ELMARR, Defendant-Appellee.

No. 07SA379.

Supreme Court of Colorado, En Banc.

April 21, 2008.

Mary T. Lacy, District Attorney, Twentieth Judicial District, William F. Nagel, Assistant District Attorney, Boulder, Colorado, Attorneys for Plaintiff-Appellant.

Douglas K. Wilson, Colorado State Public Defender, Kristin Johnson, Deputy State Public Defender, Nicole Collins, Deputy State Public Defender, Boulder, Colorado, Attorneys for Defendant-Appellee.

Justice RICE delivered the Opinion of the Court.

In this interlocutory appeal taken pursuant to C.A.R. 4.1, we review an order from the Boulder County District Court suppressing statements the defendant made in response to police interrogation. We find that the trial court properly suppressed the defendant's statements because the defendant was in custody while interrogated, and it is conceded that he did not receive proper Miranda warnings before that custodial interrogation. We therefore affirm the trial court's suppression order and remand for further proceedings.

I. Facts and Procedural History

On Sunday, May 24, 1987, Detectives Ferguson and Haugse of the Boulder Sheriff's Department and Officer Stiles of the Longmont Police Department visited Defendant Kevin Franklin Elmarr at his home to inform him that his ex-wife, Carol Murphy, was found dead the day before. According to the testimony before the trial court, the detectives were not in uniform, and their weapons were holstered. Officer Stiles was in uniform, but was present more as a friend of Elmarr's family to aid in the notification of death. Two other police officers — Captain Epp and Lieutenant Hopper — later arrived at Elmarr's home in another unmarked police car and were seen there by Elmarr, but they stayed outside.

Detectives Ferguson and Haugse spoke with Elmarr at his home and Elmarr disclosed that he had visited with his ex-wife the day before she was found dead, and had taken her for a ride on his motorcycle. Shortly after this disclosure, Detective Ferguson said the police had more questions for him, and asked him if he would mind accompanying them to the Sheriff's Department at the Boulder Justice Center for further questioning; Elmarr agreed. The detectives drove Elmarr to the Sheriff's Department in their unmarked police car, with Elmarr in the back seat. The detectives did not provide Elmarr the option of driving himself to the station. Elmarr was not handcuffed.

During the drive to the Sheriff's Department, Elmarr volunteered that he had not been entirely truthful in his earlier conversation with the detectives, and provided further information regarding his meeting with his ex-wife the day before she was found dead. The detectives did not say anything while in the car.

The detectives arrived at the Sheriff's Department through the garage in the basement, which is a secure area not open to the public. They escorted Elmarr into an elevator that led to the Sheriff's Department Detective Bureau, which is also not open to the public. Witnesses were unable to recall whether Elmarr was searched before entering the building, but Captain Epp testified that it was standard procedure for persons to be patted down before being transported. Based on this testimony, the trial court found that Elmarr was subjected to a pat-down search upon arrival at the Sheriff's Department. The trial court also found that Elmarr was then placed in a closed interview room measuring seven by ten feet, and told to stay there until officers returned. Captain Epp and Lieutenant Hopper subsequently interrogated Elmarr in that interview room. During the interrogation, Elmarr was seated against the wall, while Captain Epp and Lieutenant Hopper were seated in front of the door. The officers were dressed casually, but the trial court found that they were carrying their weapons according to the testimony at the suppression hearing. Though the interview room door had a lock on it, no one could recall if it was locked while Elmarr was in the room.

Witnesses testified that Elmarr was never handcuffed or otherwise directly physically restrained, but no one ever told Elmarr that he was free to leave or that he was not under arrest. The interrogation was audio — and video-taped, and the recording shows that Captain Epp began his interrogation by advising Elmarr that he did not have to talk to the police, that he had a right to remain silent, that anything he said that incriminated him would be taken down, and that he had a right to an attorney.¹ Captain Epp then asked if Elmarr wanted to talk to them then. Elmarr answered "sure," and then began speaking about the last time he saw his ex-wife.

Captain Epp then questioned Elmarr about the details of that last meeting with his ex-wife. Though Captain Epp spoke rather slowly and softly, he soon began expressing his doubts about Elmarr's story. For instance, early in the interview Captain Epp told Elmarr, "I hope you're telling me the truth. . . ." Later he inspected what he thought were scratches on Elmarr's arms.

Approximately halfway into the interview, Lieutenant Hopper took over much of the questioning, and his tone was more aggressive. He asked Elmarr if he ever thought of hurting his ex-wife; why witnesses would say they saw his ex-wife on a motorcycle matching Elmarr's near the place where her body was found; and whether his ex-wife was "all right" the last time he saw her. Lieutenant Hopper again asked Elmarr why he initially lied when interviewed at his house, asking, "Were you lying because you were afraid that you would be incriminated more and more?" He followed by stating, "You need to think about some of these answers pretty hard," prompting Elmarr to respond, "It seems to me like you guys are trying to say I did it." Lieutenant Hopper then continued his questioning, telling Elmarr that his story was "just not accurate," and warning him "don't be lyin' to us now. Don't be fool enough to build barriers, it's goin' to crumble right down on ya." Later, Elmarr repeated that he felt he was being accused of murder, and Lieutenant Hopper answered, "[Y]ou've lied to us already. . . . Put yourself in our place. What would you, what would you think if you were us?"

The recording also shows that near the end of the interrogation, which lasted almost an hour, Captain Epp resumed his questioning, telling Elmarr, "I just get the feeling that you are holding something back." When Elmarr wondered aloud whether he should get a lawyer² and protested that he was telling the truth, Captain Epp responded, "Well, I'm not sure. I've got reason to believe that something, that some points here that you're not." Shortly thereafter Lieutenant Hopper explicitly asked Elmarr whether he killed his ex-wife, and Elmarr denied it. Elmarr then said, "I think I would like to talk to a lawyer." At this point the officers stated the interview was over, opened the door, and left the room. They testified that the entire interrogation lasted approximately fifty minutes.

However, Elmarr remained in the Sheriff's Department. The recording shows that he was kept in the interview room for a period of time, after which one of the officers returned and asked him if he would like to take a polygraph test. Elmarr demurred and again stated he wanted to talk to an attorney. The officer left. After a further wait, yet another officer entered the interview room, stated that he wanted to take some photographs of Elmarr, and asked if Elmarr would mind removing his clothes for those pictures, adding, "You really don't have a choice right now. . . ." Elmarr complied, after which he asked, "When do I get to go home?" The officer responded, "Shortly here, I hope." Elmarr then asked to make some calls to his family and the officer left, returning later to escort Elmarr out of the interview room to make his calls. Afterwards, Elmarr was escorted back into the interview room, and in the videotape one can hear the door close again. Elmarr again asked how long he would be there, and was told, "At least until your lawyer calls." After a further wait, Elmarr's attorney entered the interview room and the videotape ended, almost an hour after Captain Epp and Lieutenant Hopper had terminated their formal interrogation.

Captain Epp testified that Elmarr was "allowed to leave" after he consulted with his attorney. Elmarr was not charged with a crime until almost twenty years later, when in January 2007 he was arrested and charged with first degree murder for the murder of his ex-wife Carol Murphy. Elmarr moved the trial court to suppress the statements he made to police twenty years earlier in his home, in the police car on the way to the Sheriff's Department, and in the Sheriff's Department interview room. The trial court declined to suppress the statements made at Elmarr's home and in the police car, and Elmarr does not challenge those rulings on appeal. However, the trial court suppressed all of the statements Elmarr made at the Sheriff's Department, finding that they were all the product of custodial interrogation.

Because there was no dispute that Elmarr was interrogated, the trial court focused on whether Elmarr was in custody while at the Sheriff's Department. In concluding that Elmarr was indeed in custody, the trial court made the following findings: (1) Elmarr was subjected to a pat-down search upon arrival at the Sheriff's Department; (2) Elmarr was provided with (albeit deficient) Miranda-type warnings typically given when a suspect is in custody; (3) Elmarr was placed in a seven-by-ten-foot interview room and told to stay there until the officers returned; (4) Elmarr was interrogated for at least fifty minutes by officers carrying weapons; (5) Captain Epp likely suspected that Elmarr was involved in Carol Murphy's murder and was attempting to elicit incriminating statements from him; (6) Captain Epp and Lieutenant...