People v. Harrison, 01CA0147.

• Docket Nº: No. 01CA0147.
• Citation: 58 P.3d 1103
• Case Date: May 23, 2002
• Court: Court of Appeals of Colorado

58 P.3d 1103

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Nathan HARRISON, Defendant-Appellant

No. 01CA0147.

Colorado Court of Appeals, Div. III.

May 23, 2002.

Certiorari Denied December 2, 2002.¹

58 P.3d 1106

Ken Salazar, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Lisa A. Polansky, Boulder, Colorado, for Defendant-Appellant.

Opinion by Judge NEY.

Defendant, Nathan Harrison, appeals from the judgment of conviction entered on a jury verdict finding him guilty of manslaughter. He also challenges his sentence in the aggravated range. We affirm.

Defendant was charged with murder after he was involved in the beating of a homeless man who died as a result of the injuries he sustained in the attack. Defendant was convicted of the lesser offense of manslaughter.

I.

On appeal, defendant contends that the trial court committed reversible error in denying his motion to suppress on the basis that his waiver of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was improper. We find no error.

After the incident, defendant was arrested on an unrelated charge in California. Two Denver police detectives interviewed defendant in California.

The videotape of the interrogation reveals that defendant was advised of his Miranda rights by a detective who spoke extremely rapidly. The detective asked defendant if he understood each of those rights and defendant answered "yes."

Defendant was then given an advisement waiver form, which he signed. The detective then apparently read to him, from the waiver form, that "knowing my rights and what I'm doing I now wish to voluntarily talk to you." The detective again handed defendant the form to sign, and defendant asked, "Now what is this for?" The detective responded that they needed the form to talk to him, and for him to talk to them, regarding the incident.

The detective next asked defendant if he had been threatened by anyone to make the statement, to which he responded "no." When asked if he was under the influence of drugs, defendant responded "nope." The detective then asked, "Is this statement being made voluntarily by you, Nathan?" to which he again responded "nope." However, defendant did not hesitate, but instead continued to talk with the detectives. Throughout his statement, defendant never declined to talk, nor did he request that the interview cease.

After an evidentiary hearing, and a review of the videotaped statement, the trial court denied defendant's motion to suppress, concluding that defendant had voluntarily, knowingly, and intelligently waived his Miranda rights.

An accused's statement made during the course of a custodial interrogation is inadmissible unless it is given pursuant to a valid waiver of his or her constitutional rights. People v. Blankenship, 30 P.3d 698 (Colo.App.2000).

The prosecution has the burden to prove by a preponderance of the evidence that the waiver was made: (1) voluntarily, in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception; and (2) knowingly and intelligently. People v. Kaiser, 32 P.3d 480 (Colo.2001). "Only if the totality of the circumstances reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that constitutional rights under Miranda have been validly waived." People v. Blankenship, supra, 30 P.3d at 705.

The trial court's findings of historical fact are entitled to deference and will be overturned only if they are not supported by

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competent evidence, but the court's ultimate legal conclusion as to the validity of a waiver is subject to de novo review. People v. Blankenship, supra, 30 P.3d at 705

A.

Initially, defendant argues that neither the oral nor the written advisement of his rights was clear and unequivocal.

Specifically, with regard to the oral advisement, he asserts that the videotape indicates that it was given very rapidly, without pauses or time to reflect. Thus, defendant claims the oral advisement was not adequate. With regard to the written advisement, defendant asserts that there was no evidence in the record that he knew how to read, and he was not given the opportunity to read the advisement before signing it.

A suspect must be warned "in clear and unequivocal terms" of his rights pursuant to Miranda v. Arizona, supra, 384 U.S. at 467-68, 86 S.Ct. at 1624, 16 L.Ed.2d at 720. See, e.g., People v. Mejia-Mendoza, 965 P.2d 777 (Colo.1998).

The People concede, and our review of the videotape reveals, that the oral advisement was done very quickly. In fact, the trial court noted that the detective "whizzed" through the advisement, and it was "hard" to understand. However, we conclude that the oral advisement was complete and was comprehensible. Defendant was asked if he understood each of the rights, and defendant unequivocally answered "yes."

Furthermore, defendant does not challenge the adequacy of the written advisement form. Rather, he contends that there was no evidence in the record that he could read, and the videotape demonstrated that he did not read it before signing. However, a review of the record reveals no indication that defendant could not read, nor did he indicate that he did not understand what he was signing.

Thus, there is evidentiary support in the record for the trial court's implicit factual finding that the advisement was adequate.

B.

Defendant next asserts that the waiver of his Miranda rights was not voluntary.

The factors to be considered in a review of the totality of the circumstances surrounding the voluntariness of a Miranda waiver include:

the time between advisement and interrogation; whether the defendant or the interrogating officer initiated the interview; whether and to what extent the interrogating officer reminded the defendant of his or her rights prior to the interrogation by asking if he or she recalled those rights, understood them, or wanted an attorney; the clarity and form of the defendant's acknowledgement and waiver, if any; and the background and experience of the defendant in connection with the criminal justice system.

People v. Blankenship, supra, 30 P.3d at 705.

1.

Defendant first contends that the waiver was involuntary because it was not an uncoerced choice. In support of this contention, he argues that he was suffering from symptoms of heroin withdrawal and that police used coercive tactics to make him confess. Additionally, he points to the fact that he responded "nope" when asked if he was talking to the detectives voluntarily.

Here, the trial court indicated that it was unimpressed with defendant's claim that he was suffering from withdrawal. Defendant had been in custody in California for twelve days, and the detective who interrogated him testified that he did not appear to be suffering from withdrawal. Defendant stated that his mind was "pretty clear."

Moreover, contrary to defendant's assertion, any alleged coercion during his confession is not evidence that the initial waiver of his Miranda rights was involuntary. See People v. Jiminez, 863 P.2d 981 (Colo.1993)(voluntariness of a statement and voluntariness of a waiver are analytically distinct).

Finally, when the waiver is viewed in context, it is evident that defendant apparently

58 P.3d 1108

misspoke when responding "nope" to the question whether he...