People v. Harris

• Decision Date: 02 May 1985
• Docket Number: No. 83CA0147,83CA0147
• Citation: 703 P.2d 667
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jerry Rodean HARRIS, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 667

703 P.2d 667

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jerry Rodean HARRIS, Defendant-Appellant.

No. 83CA0147.

Colorado Court of Appeals Div. II.

May 2, 1985.

Rehearing Denied May 30, 1985.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Milton Hutchins, First Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, for defendant-appellant.

KELLY, Judge.

Defendant, Jerry Harris, appeals his conviction of vehicular homicide and leaving the scene of an accident, arguing that the trial court erred in failing to suppress statements and in failing to instruct the jury on a lesser included offense. We reverse.

After drinking intoxicants at a bar one evening, David Flores asked defendant Harris for a ride home. Harris drove Flores to an isolated road north of Fort Collins where he asked to be dropped off. As Flores, who was very intoxicated, began to walk into an open field, Harris became concerned, turned the car around, and drove back to look for him. Flores was on the road, and Harris' car struck him. Harris stopped the car and went to find Flores; after determining that Flores was dead, Harris panicked and drove away.

I.

Defendant argues that the trial court erred because it failed to suppress his statements obtained through custodial interrogation before Miranda warnings were given. We agree.

The prosecution may not use statements stemming from custodial interrogation of a defendant unless it demonstrates that the defendant had been adequately warned of his privilege against self-incrimination and his right to counsel, and thereafter voluntarily, knowingly, and intelligently waived those rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

A person is in custody for Miranda purposes if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave. People v. Pancoast, 659 P.2d 1348 (Colo.1982); People v. Gutierrez, 198 Colo. 118, 596 P.2d 759 (1979). Here, the trial court ruled that, when the incriminating statements were made, defendant was not in custody and, therefore, his Miranda rights were not violated. We conclude that that ruling was error as a matter of law.

Fragments of the left front park light of a 1968 Mercury were found by the police at the scene of Flores' death. As a result, the next afternoon Officer Elder of the Fort Collins Police Department was on the lookout for a car of that type when he saw the defendant driving a 1968 full-size Mercury, with the left front park lens missing. Officer Elder followed the car into a parking lot, approached Harris immediately as he exited his car, asked him for license and registration, and proceeded to question him before advising him of his Miranda rights. Officer Elder testified at trial that Harris was not free to leave. There was no testimony to the contrary, and the undisputed facts do not allow an inference that Harris was not in custody for Miranda purposes.

Interrogation occurs when the police use words or engage in actions that are reasonably likely to evoke an incriminating response from the defendant. People v. Lee, 630 P.2d 583 (Colo.1981). The critical inquiry is not whether the police considered the defendant a suspect, but whether the defendant was exposed to a risk of self-incrimination by the interrogation. People v. Lee, supra.

Before advising Harris of his rights, Officer Elder asked him whether he had been involved in any recent accidents, and whether anyone else had driven the car during the last 24 hours. Harris responded that he was the only one who had driven the car during that time, and that he had not been involved in any accidents.

The officer then examined the front of the car, noticed that the left front park light was damaged and that there appeared to be slight traces of blood on the driver's door. The officer asked Harris how the damage had occurred, and he answered that it had been there when he purchased the car. The officer then asked Harris how long he had owned the vehicle and from whom he had purchased it. The officer further asked Harris if he had been in the area of the accident the previous night and for an account of his activities over the last 24 hours. Harris said he had not been in the area of the accident and that he had spent the day drinking in several bars in downtown Fort Collins with a friend. These questions exposed Harris to the risk of self-incrimination, and we hold that Harris was interrogated within the meaning of Miranda. Hence, defendant's statements to Officer Elder should have been suppressed.

II.

Defendant argues that his subsequent statements should also have been suppressed as the statements were the product of the initial illegal interrogation and therefore tainted. We disagree.

Failure to administer Miranda warnings creates a presumption of compulsion, and consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence. Miranda v. Arizona, supra.

The United States Supreme Court recently decided in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222, 36 Crim.L.Rptr. 3167 (1985) that Miranda does not require that the statements and their fruits be discarded as inherently tainted. Rather, the court ruled that a careful and thorough administration of Miranda warnings may cure the condition that rendered the previous unwarned statement inadmissible. According to Oregon v. Elstad, the warning conveys the relevant information and thereafter a suspect's choice whether to exercise a privilege to remain silent should ordinarily be viewed as an act of free will. The court reasoned that there is no basis for presuming a coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary.

Pursuant to Oregon v. Elstad, the relevant inquiry is whether in fact the second statement was also voluntarily made. The finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of any statements. The fact that a suspect chooses to speak after being informed of his rights is highly probative. Thus, a suspect who has once responded to an unwarned yet uncoercive questioning is not thereafter disabled from waiving rights and confessing after Miranda warnings have been given. Oregon v. Elstad, supra.

Immediately after the initial questioning near defendant's car, Officer Elder advised defendant of his Miranda rights and ordered him to sit in the police car. At about 2:10 p.m., some other officers arrived at the scene and Harris was transferred into State Trooper Olthoff's patrol car. Olthoff advised Harris of his rights for the second time, and Harris then made a written statement which was consistent with his previous oral statements to Officer Elder. Olthoff then orally interrogated Harris for some time, but he stuck to his original story.

At about 3:00 p.m., Olthoff handcuffed Harris and drove him to the sheriff's office where he was booked. Detective Wilson then took Harris upstairs to the interrogation room. After ten minutes of questioning, Harris broke down and for the first time admitted that he had been involved in the accident. For the next 30 to 35 minutes, Wilson interrogated Harris concerning the details of the accident. Wilson found a police officer witness, went through the confession a second time, and then decided to tape record the confession. Harris was read his Miranda rights for the third time, and the third confession was taped.

Under these circumstances, the defendant knowingly and voluntarily waived his right to remain silent. There is no evidence that either the environment or the manner of the initial interrogation was coercive. And, although belated, the reading of defendant's rights was complete and was repeated three times. Thus, although defendant's initial statements to Officer Elder prior to Miranda warnings are not admissible, defendant's subsequent statements are not rendered inadmissible under Oregon v. Elstad, supra.

III.

The defendant next argues that his confessions to Detective Wilson should have been suppressed because the officer threatened him, thereby rendering the confessions...