People v. Gomez-Garcia, 06CA2556.

• Decision Date: 03 September 2009
• Docket Number: No. 06CA2556.,06CA2556.
• Citation: 224 P.3d 1019
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Raul GOMEZ-GARCIA, Defendant-Appellant.
• Court: Colorado Court of Appeals

224 P.3d 1019

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Raul GOMEZ-GARCIA, Defendant-Appellant.

No. 06CA2556.

Colorado Court of Appeals, Div. VII.

September 3, 2009.

John W. Suthers, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

The Viorst Law Offices, P.C., Anthony Viorst, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge NIETO.^*

Defendant, Raul Gomez-Garcia, appeals the judgment entered on jury verdicts finding him guilty of second degree murder and attempted second degree murder. We affirm and remand for correction of the mittimus.

I. Background

Defendant attended an invitation-only party. The venue hired two police officers as security. Defendant left the party early and attempted to re-enter with several friends. The officers denied them entry because they did not have an invitation. An argument ensued and one of the officers allegedly assaulted defendant. Defendant and his friends then left.

Later, defendant returned to the party and shot the officers. One of the officers was wearing a bullet-proof vest and escaped serious injury. The other officer was not wearing a vest and died. After shooting the officers, defendant fled to Mexico. He was apprehended there by Mexican officials and returned to the United States.

Defendant was charged with second degree murder and attempted first degree murder. At trial, he admitted that he shot the officers but claimed that he had not intended to kill them. He further testified he thought both officers were wearing bullet-proof vests and only intended to scare them by shooting them. Relying on this testimony, defense counsel argued that defendant should be convicted of the lesser included crimes of reckless manslaughter and attempted reckless manslaughter. The jury returned verdicts finding him guilty of second degree murder and attempted second degree murder.

Defendant appeals.

II. Motion to Suppress

Defendant contends that the trial court erred in denying his motion to suppress statements he made when he was arrested in Mexico. We disagree.

A. Additional Background

The United States requested Mexico's aid in apprehending defendant after learning he had fled there. A Mexican judge issued an arrest warrant for defendant, and several Mexican officials were assigned to locate him. A United States official traveled with the Mexican officials to provide intelligence information and to serve as a technical adviser.

When the officials located defendant, the United States official waited in the car while the Mexican officials made the arrest. The Mexican officials placed defendant between them in the back seat of the car, and the United States official drove the car to the police station. On the way there, defendant made a number of statements. Nobody advised defendant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Prior to trial, defendant moved to suppress the statements. The trial court denied the motion.

B. Miranda

Defendant contends the trial court erred in not suppressing his custodial statements because he made them without first receiving a Miranda warning. We conclude the trial court properly rejected this argument because Miranda warnings are not required where a defendant is interrogated by foreign officials unless, for Fifth Amendment purposes, the foreign officials are engaged in a joint venture with United States officials. Here, there was no such joint venture.

1. Standard of Review

When reviewing a trial court's suppression ruling, we defer to the court's factual findings if they are supported by competent evidence, and we review its ultimate legal conclusion de novo. People v. Hankins, 201 P.3d 1215, 1218 (Colo.2009). We must limit our review to the evidence presented at the suppression hearing. Moody v. People, 159 P.3d 611, 614 (Colo.2007).

2. Application of Miranda to Foreign Officials

Although Colorado courts have not yet addressed the issue, other jurisdictions have concluded, the parties concede, and we agree, that the exclusionary rule does not automatically apply when the defendant was interrogated by foreign officials in a foreign jurisdiction. See, e.g., United States v. Abu Ali, 528 F.3d 210, 227 (4th Cir.2008); United States v. Yousef, 327 F.3d 56, 145 (2d Cir. 2003); United States v. Martindale, 790 F.2d 1129, 1132 (4th Cir.1986); Kilday v. United States, 481 F.2d 655, 656 (5th Cir.1973); United States v. Trenary, 473 F.2d 680, 681 (9th Cir.1973). We conclude that, because "the United States cannot dictate the protections provided to criminal suspects by foreign nations," and because "one of the principal purposes of the exclusionary rule—deterrence of unlawful police activity—is absent when foreign agents direct an interrogation," voluntary statements elicited by foreign officials are generally admissible. Abu Ali, 528 F.3d at 227; see also, e.g., Yousef, 327 F.3d at 145; Martindale, 790 F.2d at 1132; Kilday, 481 F.2d at 656; Trenary, 473 F.2d at 681-82.

However, other jurisdictions have concluded, the parties concede, and we again agree that "United States law enforcement officials may not intentionally evade the requirements of Miranda by purposefully delegating interrogation duties to foreign law enforcement officers and then having the fruits of the interrogation admitted at trial in the United States." Abu Ali, 528 F.3d at 227-28; cf. Anderson v. United States, 318 U.S. 350, 356, 63 S.Ct. 599, 87 L.Ed. 829 (1943) (for suppression purposes, conduct by individuals who were working in collaboration with federal agents was properly considered, even though the federal agents themselves did not engage in any illegal conduct).

To prevent an evasion of Miranda, courts have created a "joint venture" exception to the general rule that warnings are not required for questioning by foreign authorities in foreign countries. Abu Ali, 528 F.3d at 227-28. This exception applies, and warnings are required, only if American agents "actively participate in questioning conducted by foreign authorities" or somehow "use foreign officials as their interrogation agents in order to circumvent the requirements of Miranda." Yousef, 327 F.3d at 145-46; see United States v. Emery, 591 F.2d 1266, 1267 (9th Cir.1978) (Miranda's rationale "is not present where United States agents do not actively participate in the arrest and interrogation").

It is not entirely clear how actively American agents must participate in a foreign interrogation in order to trigger the need for Miranda warnings. Compare Emery, 591 F.2d at 1268 (requiring warning because participation of federal agents in arrest and interrogation was "greater than in [Trenary, 473 F.2d 680], where the agent merely acted as an interpreter"), with Abu Ali, 528 F.3d at 229-30 n. 5 (majority concluded federal agents did not actively participate in overseas interrogation by suggesting questions to their foreign counterparts). What is clear is that mere presence at an interrogation is insufficient. See Pfeifer v. United States Bureau of Prisons, 615 F.2d 873, 877 (9th Cir.1980).

Here, the trial court found that the United States official's role in the investigation was limited: he provided intelligence information to and consulted with the Mexican officials, but had no supervisory authority over the Mexican officials, did not participate in the arrest, and made no attempt to investigate the underlying crime. The court further found the United States official's role in the interrogation was similarly limited: although he was present when defendant made statements, he did not ask any questions. Ultimately, the trial court concluded that "[i]t appears here that the same scenario could have happened even if [the United States official] was not even present." We also note that the evidence at the suppression hearing did not show any effort by the United States official to encourage interrogation of defendant by the Mexican officials.

We will not disturb the trial court's findings because they are supported by the evidence presented at the hearing. And, under these circumstances, we conclude that the United States and Mexican officials were not engaged in a joint venture for Miranda purposes. Compare Yousef, 327 F.3d at 146 ("evidence that the United States may have solicited the assistance of a foreign government in the arrest of a fugitive within its borders is insufficient as a matter of law to constitute United States participation under the joint venture doctrine"), and Pfeifer, 615 F.2d at 877 (concluding the presence of "`an American DEA agent' who had a pistol visible under his jacket" during an interrogation by Mexican officials did not alone constitute substantial participation by a federal agent necessary to apply the joint venture doctrine), with Emery, 591 F.2d at 1268 (finding a joint venture where United States officials "substantially participated in the entire arrest" by "alert[ing] the Mexican police of the possible activity, coordinat[ing] the surveillance at the [Mexican] airport, suppl[ying] the pilot for the plane and g[iving] the signal that instigated the arrest once it was determined that the marijuana was in the suitcase"). Our conclusion that this case does not require application of the joint venture exception to prevent the evasion of Miranda is fortified by the fact that the Mexican authorities here conducted little, if any, interrogation.

Finally, because the United States Marshal in this case was not part of the state investigation and was present solely to facilitate the apprehension and return of a fugitive, the facts of this case do not raise an appreciable risk that American authorities would use foreign authorities to evade or circumvent Miranda.

C. Scope of Cross-Examination

Defendant contends the trial court erred in ruling that, if he testified his statements were coerced, the prosecution would be able to...