People v. Grant, No. 98CA2099.

• Decision Date: 17 August 2000
• Docket Number: No. 98CA2099.
• Citation: 30 P.3d 667
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant and Cross-Appellee, v. Jeron J. GRANT, Defendant-Appellee and Cross-Appellant.
• Court: Colorado Court of Appeals

30 P.3d 667

The PEOPLE of the State of Colorado, Plaintiff-Appellant and Cross-Appellee, v. Jeron J. GRANT, Defendant-Appellee and Cross-Appellant.

No. 98CA2099.

Colorado Court of Appeals, Div. III.

August 17, 2000.

Certiorari Granted September 10, 2001.

Ken Salazar, Attorney General, Katherine A. Hansen, Catherine P. Adkisson, Assistant Attorneys General, Denver, Colorado; Jeanne M. Smith, District Attorney, David A. Gilbert, Kim L. Kitchen, Gordon R. Denison, Deputy District Attorneys, Colorado Springs, Colorado, for Plaintiff-Appellant and Cross-Appellee

David S. Kaplan, Colorado State Public Defender, Cynthia Camp, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee and Cross-Appellant

Opinion by Judge DAVIDSON.

The People challenge the propriety of the trial court's ruling which sentenced defendant, Jeron J. Grant, to concurrent terms. The People also seek disapproval of the court's refusal to give a jury instruction on complicity. Defendant cross-appeals the judgment of conviction entered upon jury verdicts finding him guilty of two counts of accessory to crime. We disapprove of the court's rulings and affirm the judgment.

Defendant's confessions to police, friends, and a cell mate, which were admitted at trial, stated that he and his co-defendant decided to "joke around" with a shotgun that was hidden in defendant's car. They spotted two boys walking down the street and pulled the car over. Defendant exited and confronted the boys, holding the shotgun to the head of one of them. Subsequently, according to defendant's confessions, he shot the first victim and, when the second boy tried to run away, shot him as well. Both shots proved fatal.

At trial, while defendant did not challenge the accuracy of his confession as to the events that led to the shooting, his theory of the case was that he falsely admitted to shooting the two boys and that his co-defendant had committed the murders.

I.

The People contend that the trial court erred when it refused the prosecutor's request for a complicity instruction. Specifically, the People argue that, as a result of defendant's claim that he was not the shooter but, implicitly, the driver, the evidence was sufficient to support a jury instruction on complicity. We agree.

The complicity statute, § 18-1-603, C.R.S. 1999, provides that:

[A] person is legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense.

Complicity is not an offense but a legal theory by which defendant could have been convicted. Palmer v. People, 964 P.2d 524 (Colo.1998). An instruction on complicity may be given when supported by evidence admitted at trial that two or more people engaged jointly in a crime. People v. Osborne, 973 P.2d 666 (Colo.App.1998).

Here, neighborhood residents uniformly testified that two people were involved in the incident, a shooter and a driver. Moreover, defendant did not advance an alibi or mistaken identity defense. To the contrary, defendant's expert witness advanced the theory that defendant had, in making his various confessions, switched roles with his co-defendant, the actual shooter.

Under this record of evidence, a complicity instruction was warranted. See Thompson v. People, 139 Colo. 15, 336 P.2d 93 (1959)

(two men committed a robbery and, shortly thereafter, three men were arrested in a car which contained masks and proceeds from the robbery; conviction of the third man, who had remained in the car and did not enter the store, as an accomplice was upheld).

II.

The People also seek disapproval of the trial court's ruling that consecutive sentences were not authorized. Again, we agree.

Pursuant to § 18-1-408(3), C.R.S.1999:

When two or more offenses are charged. . . and they are supported by identical evidence, the court upon application of the defendant may require the state, at the conclusion of all the evidence, to elect the count upon which the issues shall be tried. If more than one guilty verdict is returned as to any defendant in a prosecution where multiple counts are tried . . . the sentences imposed shall run concurrently; except that, where multiple victims are involved, the court may, within its discretion, impose consecutive sentences.

This subsection provides that the trial court must impose concurrent sentences for multiple convictions arising from the same criminal episode when there is a single victim and the convictions are supported by identical evidence. See People v. Anderson, 187 Colo. 171, 529 P.2d 310 (1974)

. However, when multiple convictions arise from crimes committed upon different victims, the evidence is not identical. See People v. Wafai 713 P.2d 1354 (Colo.App.1985),

aff'd,

750 P.2d 37 (Colo.1988); People v. Cullen, 695 P.2d 750 (Colo.App.1984).

Here, defendant was found guilty of accessory to manslaughter of the first victim and accessory to the murder of the second victim. Because multiple victims were involved and, thus, the evidence necessary for each conviction would not have been identical, the trial court, by the plain language of the statute, did have the authority to impose, at its discretion, consecutive sentences.

III.

On cross-appeal, defendant claims that the trial court erred in failing to suppress a second incriminatory statement he made to police. Defendant alternatively argues that suppression was warranted because the statement was taken in violation of § 19-2-511, C.R.S.1999; the statement was the product of an illegal first statement; and it was made even though he had invoked his right to counsel. We are not persuaded.

The First Statement

Defendant, age 17 and six months, was arrested at his home at 2:55 a.m. His mother was present. He was taken to the police department, and his parents arrived at 4:30 a.m. Defendant and his parents were informed why he was in custody and that police wanted to interview him.

The detective advised the parents and defendant, verbally and in writing, of his rights pursuant to Miranda. The detective then ascertained their understanding of and agreement to waive those rights and wrote their affirmative answers on individual waiver forms prepared for each parent and defendant. The parties signed their individual Miranda waivers.

In the presence of his parents, defendant gave an initial statement regarding what happened the night of the shooting. When the detective voiced his disbelief, defendant asked to speak with the detective alone. The parents gave their verbal consent and left the interview room.

When defendant's next statement was also disputed, he agreed to take a polygraph exam. His parents verbally gave their permission. Prior to the administration of the exam, the detective again encouraged defendant to "come clean" and not waste time with the exam. Defendant began to cry and explained that he was scared and afraid to go to jail. Defendant was asked if he would tell the police what had happened, and he agreed to do so. The detective then said that if defendant was responsible for the boys' deaths, as he felt he was, it was going to be "extremely tough on him to live with." Defendant's parents were in an adjoining room where they could see but not hear this exchange.

At 6:00 a.m., defendant made a verbal confession, which he then wrote and signed. The parents declined the opportunity to read the statement, but they did sign the document. Defendant was then taken to a detention center.

The Second Statement

Later that morning, the detective learned that a waiver of a juvenile's right to have his parents present during his advisement and interrogation must be in writing. The detective then arranged for a second interview with defendant and his parents. The detective did not inform them that the reason for the second interview was the detective's concern that the first interview may have been rendered inadmissible by the failure to obtain a written waiver.

At 12:35 p.m., the detective met defendant at the detention center and asked for a second interview at the police department. Defendant responded, "I'm not supposed to talk to anyone until tomorrow." When asked who had told him that, defendant responded by handing the detective the business card of a public defender who had seen him earlier that morning.

The detective asked if the public defender was representing him; defendant stated he did not know. The detective asked if he had filled out any paperwork; defendant acknowledged he had signed something but did not know what it was. The detective then asked defendant to go with him to the police department anyway because his parents would be there.

While driving to the department, defendant spontaneously stated that he was willing to speak with the detective but did not want to do so with his parents present. The detective later relayed this request to defendant's parents.

Upon arrival, defendant had a private conversation with his parents. When the detective returned, defendant's mother stated that she had been contacted by the public defender's office. She was told that the office was unsure if it would be representing defendant, but would make the decision the next day. The detective replied that, regardless of the public defender's decision, the court would appoint an attorney to represent her son "throughout this situation." During this pre-interview discussion, neither his parents nor defendant expressed concern about speaking with an attorney before the interview or about proceeding with the interview.

The detective asked if he could conduct the interview. Defendant's mother responded, "Well, you interviewed him once, that would be fine." Defendant affirmed that the interview was "all right" with him. The detective again advised defendant of his rights. Defendant, his mother, and his father verbally...