People v. Freeman

• Decision Date: 06 September 1983
• Docket Number: No. 82SA178,82SA178
• Citation: People v. Freeman, 668 P.2d 1371, 51 A.L.R. 4th 473 (Colo. 1983)
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Russell Eugene FREEMAN, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1371

668 P.2d 1371

51 A.L.R.4th 473

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v.Russell Eugene FREEMAN, Defendant-Appellant.

No. 82SA178.

Supreme Court of Colorado En Banc.

Sept. 6, 1983.

Rehearing Denied Sept. 26, 1983.

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol.Gen., Nathan B. Coats, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Michael Heher, Deputy State Public Defender, Denver, for defendant-appellant.

ERICKSON, Chief Justice.

The defendant, Russell Eugene Freeman, appeals from his convictions on two counts of first-degree murder after deliberation, section 18-3-102(1)(a), C.R.S.1973(1978 Repl.Vol. 8), and two counts of felony murder, section 18-3-102(1)(b), C.R.S.1973(1978 Repl.Vol. 8), all arising from the robbery-murders of Steven Tackett and Susan Williams.¹Freeman claims error in the trial court's refusal to suppress his confession, asserting that it was the fruit of an illegal arrest and was given involuntarily and without proper Miranda warnings.He also challenges venue with respect to the Williams murder, the district court's refusal to compel an election between the murder after deliberation and the felony murder counts, the imposition of consecutive sentences for two of the murder convictions, and a number of the district court's evidentiary rulings and instructions to the jury.We reverse and remand for a new trial.

I.

On July 13, 1979, the defendant and his step-brother, Fred Morris, sold a Chevrolet Malibu registered in the name of Steven Daniel Tackett to officers of the Lakewood Department of Public Safety, who were purchasing stolen goods as part of an undercover fencing operation.Freeman had sold automobiles to the operation on two prior occasions, and during one transaction he described to the officers how he had obtained the vehicle by kidnapping its owner at gunpoint.²He also displayed a .45 caliber semi-automatic handgun to the officers, who observed and recorded its serial number.

The defendant made a fourth sale of a Chevrolet Monte Carlo to the police on July 16.That evening, the officers learned that Tackett's decomposed body had been discovered at Molholm Elementary School, just two blocks from the undercover "sting" operation site.A spent .45 caliber shell casing was found near the victim, and the pathologist performing the autopsy indicated that Tackett had been killed by a large caliber gunshot wound to the head, with entry and exit wounds consistent in diameter with a .45 caliber bullet.The pathologist estimated the time of death as at least forty-eight hours prior to the discovery of the body.The officers also learned that the registered owner of the stolen Monte Carlo, Susan Rae Williams, had recently been reported as missing.

On July 17 at approximately 11:45 p.m., Freeman telephoned the Lakewood officers and made arrangements for the sale of yet another vehicle.The officers immediately called a meeting where they described the defendant and made plans to arrest him and anyone accompanying him to the sale, which was scheduled to take place at 1:00 a.m. on July 18.The defendant and Fred Morris were observed driving separate cars toward the undercover site at approximately 1:00 a.m., and Morris was stopped and arrested near the site; the .45 caliber pistol which the defendant had earlier displayed to the officers was recovered from the car.The defendant refused to stop, however, and led the officers, along with officers from a number of other jurisdictions, on a high speed chase.The chase ended when the defendant abandoned his car and fled into the fields near 136th Avenue and Huron Street in Adams County.

A search of the area was conducted but the officers were unable to locate the defendant and they left the area at 7:00 a.m. Broomfield police officers participating in the search then met to critique the investigation, but were interrupted at 7:53 by a report from the Adams County Sheriff's office that a black male matching the defendant's description was seen in the vicinity of the search area.The dispatcher also reported that the suspect was believed to have been involved in the previous night's search, and was suspected of auto theft and a possible homicide.As he was driving on Interstate 25 toward 136th Avenue, Broomfield Officer Robert Shephard saw a hitchhiker along the highway near the search area and, after calling him over to his car and determining that he matched the description of the defendant, arrested him.

The defendant was driven to the Broomfield Police Department where he was held for approximately two hours.He was then driven to Lakewood and at about 1:00 p.m. was interviewed by the Lakewood officers for approximately two hours.The officers informed the defendant that they were interested in questioning him about the previous night's automobile chase, and advised him that he need not answer any questions and that he had the right to have an attorney present.Freeman agreed to talk to the officers and tell them "what happened last night," and initially denied any involvement in the chase.³He also denied participation in any automobile thefts.During one point in the interrogation one of the undercover officers to whom the defendant had made sales of stolen vehicles entered the room.The officers then attempted to employ a version of the "Mutt and Jeff" routine, with several officers acting in a belligerent and accusatorial fashion toward the defendant while another acted as his sympathetic friend.

When pressed, the defendant admitted to the theft and sale of several automobiles, including Tackett's Malibu and Williams' Monte Carlo.The questioning then focused specifically upon the Tackett murder.The officers accused the defendant of the crime and told him that they knew his gun was the murder weapon.In fact, no testing of the weapon had yet been performed.On numerous occasions the officers referred to Fred Morris' involvement in the crimes and indicated that he would face murder charges "unless somebody else has got enough guts to stand up and say what really happened."They indicated that Morris "didn't want to go back to prison," and falsely stated that he had implicated the defendant in Tackett's murder.The officers also appealed to the defendant's sympathy for Susan Williams' family, stating "they know she is dead.They want to find her, can you show us where she is....It doesn't make any difference to you at all other than--you know maybe it would be a good thing."The defendant responded, "yeah, get time in the can," to which an officer replied, "for one or ten--it doesn't make any difference--you know that as well as I do.If you do one stickup, if you do ten stickups, you get the same time."

When he was assured that he would be allowed to see his girlfriend after he revealed the location of Williams' body, Freeman stated, "I'll take you to the body."Thereafter, he admitted to the shooting of Tackett after encountering him in downtown Denver, forcing him into his own car, and driving to Molholm School.Freeman also admitted that he and his brother, Harry, encountered Susan Williams as she was leaving a Denver nightclub, forced her into her automobile, and drove her to a field where he stabbed her and tried to cut her throat.When the defendant expressed concern regarding the length of the sentence which he could receive, an officer reassured him by stating that a person convicted of murdering even a famous person like Coors actually serves little time in prison.The defendant later stated, "its hard to run it all together," to which the officer responded, "Oh, that's just going to be on paper--that's all its gonna be--they don't stack 'em up.If you get five here and ten there and ten more someplace else--they'll run them all together."Freeman then described how he eluded capture following the automobile chase and drew a map for the officers indicating the location of Williams' body, which was recovered.The autopsy indicated that Williams died as the result of multiple stab wounds to the chest, and a superficial incisional wound was discovered on her neck.

The defendant was charged in Jefferson County District Court with the murders of Tackett and Williams--two counts of murder after deliberation and two counts of felony murder.An additional charge of theft by receiving was severed from the murder charges.His pro se motion to suppress statements and physical evidence was denied by the trial court after a hearing, and he was subsequently convicted of both murders.The court entered judgment and sentenced the defendant to life imprisonment on all four murder counts, ordered the premeditated and felony murder convictions for each victim to run concurrently, and ordered the sentences for the murder of Tackett to run consecutively to those for the murder of Williams.

II.

The defendant claims that his statements to the Lakewood officers should not have been admitted into evidence because they were the fruit of an arrest made without probable cause.His claim is not supported by the record.

Probable cause to arrest exists when the objective facts and circumstances available to a reasonably cautious officer warrant the belief that an offense has been or is being committed by the person arrested.People v. Hazelhurst, 662 P.2d 1081(Colo.1983);People v. Chavez, 632 P.2d 574(Colo.1981).An officer who does not personally possess sufficient information to constitute probable cause may nevertheless make a valid arrest if he acts upon the direction or as a result of a communication from a fellow officer, and the police, as a whole, possess sufficient information to constitute probable cause.People v. Baca, 198 Colo. 399, 600 P.2d 770(1979);People v. Nanes, 174 Colo. 294, 483 P.2d 958(1971).

At the suppression hearing, Officer Shephard testified that he was dispatched to...