People v. Gennings, 90SA44
| Citation | 808 P.2d 839 |
| Decision Date | 22 April 1991 |
| Docket Number | No. 90SA44,90SA44 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Charles Earl GENNINGS, Defendant-Appellee. |
| Court | Supreme Court of Colorado |
John Suthers, Dist. Atty., Gordon R. Denison, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.
Daniel & Thom, P.C., Bobby Lane Daniel, Norman R. Thom, Colorado Springs, for defendant-appellee.
The People appeal from a ruling suppressing an inculpatory statement made by the defendant, Charles Earl Gennings, a Colorado Springs police officer, to a polygraph examiner following the administration of a polygraph examination, another statement made by him to a police department psychologist, and a third statement made by him to the district attorney's investigator. The court suppressed the defendant's post-polygraph statement as involuntarily made. The court suppressed the other two statements because, at the suppression hearing, the prosecution failed to establish the voluntary nature of the statements. We vacate the suppression ruling and remand the case for further proceedings.
The defendant, who was a police officer of eleven years with the Colorado Springs Police Department, is charged with one count of aggravated incest for having sexual contact with his sixteen-year old stepdaughter between July 1, 1988, and August 4, 1989. The evidence at a preliminary hearing established that an investigation was commenced after the defendant sought assistance from a police department psychologist for what was described as a problem he was having with his stepdaughter. The psychologist reported the matter to the Colorado Springs Police Department, 1 which in turn referred the matter to the El Paso County Department of Social Services. Additional evidence at the preliminary hearing established that on August 4, 1989, an investigator with the district attorney's office, along with the defendant's supervising sergeant and a social services investigator, went to the defendant's home and interviewed the defendant's stepdaughter. The stepdaughter confirmed to the investigators that the defendant had fondled her breasts on several occasions and had also touched her vagina. The prosecution also presented testimony showing that the defendant was interviewed at his home on this occasion and told the investigators that he once had pinched his stepdaughter on her breast while they were horseplaying, but he denied touching her in the vaginal area or receiving any sexual gratification from the conduct. Because the stepdaughter denied in her preliminary hearing testimony that the defendant had sexual contact with her, the prosecution presented testimony regarding her previous inconsistent statement made to the district attorney's investigator at her home. In addition, the prosecution established that the defendant had undergone a polygraph examination and had told the examiner during a post-examination interview that he had touched his stepdaughter's breasts to meet some sexual and emotional need on his part. The district court found probable cause on the charge of aggravated incest and bound the case over for trial.
Prior to trial, the defendant filed a motion to suppress his statements to the police psychologist, to the district attorney's investigator, and to the polygraph examiner on the ground that such statements were involuntarily made. The district court conducted a hearing on the motion over a two-day period. The evidence at the suppression hearing established that during the investigative phase of the case, before the filing of any charges, the defendant had retained an attorney to advise him. On August 8, 1989, Dennis Dean, a district attorney investigator, contacted the defendant's attorney and discussed a polygraph examination for the defendant. The defendant agreed to submit to a polygraph examination to be administered by Jeanne Overall, a civilian polygraph examiner employed by the Colorado Springs Police Department. Prior to the examination, which was scheduled for August 15, 1989, the district attorney investigator met with the examiner and briefed her on the investigation. The investigator told the polygraph examiner that the defendant had taken and passed another polygraph examination and that the purpose of the upcoming examination was to "nail down the issue of sexual gratification" with respect to the sexual contact.
The polygraph examiner was aware that the defendant was represented by counsel and made arrangements for the defendant and his attorney to be admitted to the police building on the evening of August 15, 1989, for the examination. The defendant arrived without his attorney and was directed to a small examining room in the stationhouse. The examiner initially asked the defendant if his attorney would be present. The defendant told her that he chose not to have his attorney present. The examiner then advised the defendant of his Miranda rights 2 and also told him that he could stop the polygraph examination at any time and that the police department had access to her records. When asked if he understood his rights, the defendant stated that he did.
The polygraph examiner first conducted a pre-test interview with the defendant to determine his testability and then administered the polygraph examination. After the examination was completed, the examiner conducted a post-examination interview which she described as part of standard polygraph procedure. She told the defendant that in her opinion he was deceptive on the examination and that he needed to be honest with her. The defendant told the examiner that his attorney had advised him that he was not to discuss the examination results with her. The examiner at that point, according to the defendant's suppression testimony, told the defendant that she was conducting the examination at the request of the district attorney's office, that the police department would have access to all her records and findings, and that "the police department will find out if you don't cooperate with me." The defendant testified that he became extremely nervous and upset at this remark and felt like a "caged animal." He stated that he wanted to leave but, feeling intimidated by the examiner's statement and manner and fearful of losing his job, he stayed in the room "because of what the police department was going to do and what the police department was going to say."
The polygraph examiner testified to a different version of these events. She testified that immediately following the examination she told the defendant that he had been deceptive on the test and that he was free to leave. The defendant, however, made no effort to leave. The examiner acknowledged during her testimony that although she was aware that the defendant's attorney had advised him not to discuss the test results, she employed a "soft technique" on the defendant during the post-examination interview. This technique, as described by the examiner, was to convey a sympathetic attitude and to tell the defendant that he would feel better if he talked to her about what actually occurred between him and his stepdaughter. The purpose of this technique, according to the examiner, was to persuade the defendant "to tell the truth." The examiner, however, denied that she told the defendant that the police department would be informed of his refusal to cooperate with her. She testified that she would not make such a statement because, in her view, "it sounds like a threat." The defendant remained for the post-examination interview and, according to the examiner, acknowledged during the interview that he had touched his stepdaughter's breasts to meet a "sexual and emotional need."
At the conclusion of the evidence relating to the polygraph examination, the prosecuting attorney requested permission to present evidence concerning the defendant's statements to the police psychologist and to the district attorney's investigator. The district court denied the request and proceeded to rule on the motion to suppress. Finding that the polygraph examiner had violated the Code of Professional Responsibility by interviewing the defendant after the polygraph examination in the absence of and without notification to the defendant's attorney and by conducting the post-examination interview in a psychologically coercive manner, the court concluded that the defendant's post-examination statement to the examiner was involuntarily made and suppressed that statement. The court also suppressed the defendant's statements to the police psychologist and to the district attorney's investigator because the prosecution had failed to present any evidence establishing the voluntary nature of those statements.
The People thereafter filed this interlocutory appeal. After the record and briefs were filed, we remanded the case to the district court for more specific findings on the factual basis for suppressing the defendant's post-examination statement to the polygraph examiner. In a supplemental ruling after remand, the district court did not address whether the polygraph examiner had violated the Code of Professional Responsibility and instead ruled that "any reasonable person in the defendant's circumstances would not have felt free to leave the post-test interview" and that the defendant accordingly "had been subjected to custodial interrogation by Ms. Overall during the post-test interview." The court also expressly determined that the polygraph examiner, although aware that the defendant had been advised by his attorney to refrain from discussing the test results, confronted the defendant with the accusation that he was guilty and that his job was at risk and then employed a "soft technique" to get him to talk. The court concluded that the examiner's conduct constituted "coercive police activity" that rendered the defendant's post-examination statement constitutionally...
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