People v. Hutton

• Decision Date: 22 June 1992
• Docket Number: No. 91SA427,91SA427
• Citation: 831 P.2d 486
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Douglas Lee HUTTON, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 486

831 P.2d 486

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Douglas Lee HUTTON, Defendant-Appellee.

No. 91SA427.

Supreme Court of Colorado En Banc.

June 22, 1992.

Donald E. Mielke, Dist. Atty., Donna Skinner Reed, Chief Appellate Deputy Dist. Atty., Golden, for plaintiff-appellant.

M. Evan Sweet, Lakewood, for defendant-appellee.

Justice MULLARKEY delivered the Opinion of the Court.

The People, pursuant to C.A.R. 4.1, appeal the district court's ruling, in People v. Hutton, No. 91CR747, suppressing a statement given by the defendant to a polygraph examiner. Although the district court concluded that the defendant waived his Miranda ¹ rights and voluntarily gave statements prior to the polygraph examination, the court concluded that the defendant's statement, made after the test in response to the examiner's expressed belief that the defendant had lied, was not voluntary. The court's reasoning was based upon a finding that, while there had been no coercion, the examiner's conduct "tainted" the defendant's responsive statement, rendering it involuntary. The People argue that because the court concluded that the examiner's conduct did not amount to coercion, the defendant's statement is admissible as having been voluntarily made under the totality of the circumstances. We reverse the district court's ruling.

I.

The defendant, Douglas Hutton, is charged with two counts of sexual assault on a child in violation of section 18-3-405, 8B C.R.S. (1986 & 1991 Supp.). ² On January 8, 1991, Hutton underwent a polygraph examination at the request of the Lakewood Police Department pursuant to the Department's investigation of the alleged sexual assault. The examination was conducted by a private polygraph examiner, who was employed by and acting on behalf of the police department. The examination was conducted at the examiner's office. The defendant was not in custody at the time, and no counsel was present with the defendant.

Before the examiner began the polygraph test, he conducted a pre-test interview. Prior to the commencement of that interview, the defendant was verbally advised of his Miranda rights and signed a waiver form which contained the rights in written form. The waiver form included a paragraph which stated:

The above statement of my rights has been read and explained to me. I fully understand my rights. I am ready and willing to answer questions or to make a statement without further consulting a lawyer or having a lawyer present during questioning. In waiving my right to remain silent, I wish to state no threats or promises have been made and no persecution or coercion has been used against me.

The polygraph machine was attached to the defendant during the pre-test interview in order to acclimate him to the machine. The machine was not operating during that time, and the defendant was so informed. In addition, the examiner told the defendant that he was "free to leave" at any time.

During the pre-test interview, the examiner asked questions concerning Hutton's relationship with the victim. Hutton stated that he had met the victim in February 1990 when the victim was delivering newspapers. He stated that he had developed a friendship with the victim, and the victim had often visited the defendant at his home.

After the polygraph test, Hutton signed a form which stated:

This polygraph examination having concluded, I can state at no time were there any threats, coercion or harm done to me during the entire time I have been here, either in connection with the examination or the signing of this form. That although I realize the results of the examination may be unfavorable to me, I hereby release, waive and forever discharge [the examiners and their corporation] from any and all action, claim, demands or liability resulting directly or indirectly from the taking of said examination.

The form originally provided that the examiner and his corporation would be released from liability in the event that "any error" was made. However, the defendant crossed out the words "any error" on the form, not wishing to release the examiner from liability in the event of an error.

Upon completion of the polygraph examination, the examiner left the room to review the results of the test. When he reentered the room in which the defendant was seated, he explained to the defendant that, "in [his] opinion there had been some deception." ³ The defendant then gave a statement to the effect that he had become sexually aroused on several occasions in the presence of the victim. He described one particular occasion in which the victim had changed clothes in the defendant's bedroom, stating that he had become aroused at the sight of the boy without clothes. The defendant did not at any point in the pre- or post-test interview or polygraph examination state that he wanted to cease answering questions. Nor was there any indication that the defendant was under duress.

II.

When the voluntariness of a defendant's statement is challenged, the burden is on the prosecution to prove by a preponderance of the evidence that, under the totality of the circumstances, the statement was made voluntarily. People v. District Court, 785 P.2d 141, 144 (Colo.1990); People v. Sparks, 748 P.2d 795, 797 (Colo.1988); People v. Raffaelli, 647 P.2d 230 (Colo.1982). "The trial court must determine whether the statement was the 'voluntary product of a free and deliberate choice rather than [the product of] intimidation, coercion, or deception.' " District Court, 785 P.2d at 144 (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140, 89 L.Ed.2d 410 (1986)). "The term 'totality of circumstances' refers to the significant details surrounding and inhering in the interrogation under consideration." People v. Gennings, 808 P.2d 839, 844 (Colo.1991). In Gennings, this court articulated several factors which should be considered in determining voluntariness under the totality of the circumstances:

Included in any listing of such details, but by no means intended as an exhaustive cataloging, are the following: whether the defendant was in custody or was free to leave and was aware of his situation; whether Miranda warnings were given prior to any interrogation and whether the defendant understood and waived his Miranda rights; whether the defendant had the opportunity to confer with counsel or anyone else prior to the interrogation; whether the challenged statement was made during the course of an interrogation or instead was volunteered; whether any overt or implied threat or promise was directed to the defendant; the method and style employed by the interrogator in questioning the defendant and the length and place of the interrogation; and the defendant's mental and physical condition immediately prior to and during the interrogation, as well as his educational background, employment status, and prior experience with law enforcement and the criminal justice system.

Gennings, 808 P.2d at 844. We give deference to the trial court's findings of fact concerning voluntariness. People v. Jensen, 747 P.2d 1247 (Colo.1987); People v. Parks, 195 Colo. 344, 579 P.2d 76 (1978).

The prosecution asserts that although the trial court used language in its ruling which referred to the totality of the circumstances, the court did not actually consider the totality of the circumstances because the only detail mentioned by the court was the examiner's statement to the defendant that he believed there had been some deception. The prosecution emphasizes that the trial court determined the pre-test statements to be voluntary and that the only change identified by the court between the pre- and post-test statements was the examiner's statement to the defendant concerning his deception....