People v. Leyba

• Decision Date: 12 September 2019
• Docket Number: Court of Appeals No. 16CA1724
• Citation: 490 P.3d 483
• Court: Colorado Court of Appeals
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Furmen Lee LEYBA, Defendant-Appellant.

490 P.3d 483

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Furmen Lee LEYBA, Defendant-Appellant.

Court of Appeals No. 16CA1724

Colorado Court of Appeals, Division IV.

Announced September 12, 2019

Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney General, Colleen Wort, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE J. JONES

¶ 1 Defendant, Furmen Lee Leyba, appeals the district court's judgment of conviction entered on jury verdicts finding him guilty of aggravated robbery and three counts of accessory to first degree murder. Among other things, he argues that the district court erred by declining to suppress statements he made to police detectives during a two-hour interrogation after he invoked his right to counsel. Because we conclude that the detectives stopped interrogating Leyba after he invoked his right to counsel and Leyba reinitiated the conversation about the investigation with the detectives, we affirm the district court's decision declining to suppress the statements. Leyba's remaining contentions fail as well. Accordingly, we affirm.

I. Background

¶ 2 Leyba and his fellow gang member Gabriel Flores went to a house where Jason Quijada, a known drug dealer, was staying. There were six people in the house — Quijada; two juveniles who worked for Quijada; Quijada's girlfriend, Cherene Rivera; Joshua Williamson; and Pastor Estapa. Flores spoke to Quijada and Quijada gave him a hypodermic needle. A little while later, for reasons that are unclear, Flores shouted at Quijada and then shot and killed Quijada and the two juveniles. He and Leyba then took from the house guns, a toolbox, and a curling iron box thought to contain money. Leyba drove away from the house with Flores. But when Flores realized the box didn't have any money in it, they returned to the house. Flores threatened the occupants with a gun and demanded that they give him drugs and money. When Estapa told Flores the police were on their way to the house, Flores left and he and Leyba again drove away.

¶ 3 Two days later, police officers tried to arrest Leyba. While Leyba unsuccessfully tried to flee, a gun fell out of his pants. That gun proved to be the one which had been used to kill the three victims. Detectives James Morgen and Casey Overton questioned Leyba for two hours. The interview was video-recorded.

¶ 4 The People charged Leyba with three counts of felony murder, three counts of aggravated robbery, three counts of accessory to first degree murder, and one count of accessory to commit aggravated robbery. Leyba's theory of defense was that he didn't know Flores was going to shoot anyone, and that after Flores did so, he only took things from the house and drove with Flores from, back to, and again from the house because he was afraid Flores would harm him too.

¶ 5 The jury acquitted Leyba of felony murder, but found him guilty of one count of aggravated robbery of Quijada and three counts of accessory to first degree murder.

II. Discussion

¶ 6 Leyba raises four issues on appeal: (1) whether the district court erred by failing to suppress the video of his interview; (2) whether the district court erred by denying his request for an instruction on theft as a lesser nonincluded offense of aggravated robbery; (3) whether the district court erred by refusing to instruct the jury on the affirmative defense of duress for the aggravated robbery charge; and (4) whether the prosecutor engaged in misconduct requiring reversal. We discuss these issues in turn.

A. Suppression

¶ 7 Leyba contends that the district court erred by denying his motion to suppress the video-recorded statements he made after he invoked his right to counsel because the detectives didn't honor his request for counsel. We conclude that the court properly denied the motion, albeit for somewhat different reasons than those on which the district court relied. See People v. Aarness , 150 P.3d 1271, 1277 (Colo. 2006) (an appellate court can affirm a district court's ruling on different grounds).

1. Additional Background

¶ 8 Detectives Morgen and Overton interviewed Leyba at a police station house. The video shows Detective Morgen asking Leyba his name, date of birth, and other background information before saying the detectives wanted to question him. The following exchange ensued:

Morgen: Furmen, uh, we want to go through your advisement of rights. I would like you to come over here and look at this if you're willing?

Leyba: Do I need my lawyer for this?

Morgen: Are you asking for one or not?

Leyba: Yeah.

Morgen: Okay.

Leyba: I don't know what you [inaudible] are doing, like you're just asking me a bunch of questions about my name and stuff; I haven't been told shit besides what I been seeing on the news and I don't know what the fuck you're talking about.

Morgen: K, we're investigating a homicide that took place two days ago.

Leyba: I know all that I mean, I mean, obviously I was around the same crowd of people and all that so, I mean, but the person you guys already caught hasn't told you what you guys needed to know? Why does everybody else keep putting people involved that didn't do shit. There was more than just me there. [Inaudible] been the only one that's sitting on me like a suspect or something, I didn't do shit wrong.

Morgen: So, I'll make this clear, are you willing to talk to me or go through this form and talk to me about this case or no?

Leyba: And I can ask for a lawyer anytime I start to feel uncomfortable?

Morgen: Yes, sir.

Leyba: All right.

¶ 9 Detective Morgen then asked Leyba to read through a form advising him of his Miranda rights and to sign in various places to waive those rights:

Morgen: Okay. I need you to be able to fill this out though. Okay? So the first question is do you read, write, and understand English? You answer "yes" or "no," please. And just follow along. If you have any questions, I'll be happy to answer ‘em for you.

Leyba: I'm fucking stressed out, man.

Morgen: Okay. So starting with number one, read this. Okay? Then read two, three, and four. And after you get done with that, read this. You agree to it, yes or no. Okay? Go ahead and sign, please. Okay. And then I need you to read this little paragraph here and if you agree to it, sign, date, and time, please. Okay.

Leyba then spoke with the detectives for about two hours.

¶ 10 Leyba moved to suppress his statements from the interview. At the hearing on the motion, Detective Morgen testified that he had intended to stop the interview when Leyba answered "Yeah" to his question "Are you asking for [a lawyer] or not?" but Leyba "kind of rambled on."

¶ 11 The district court denied the motion, finding that Detective Morgen adequately advised Leyba of his rights, Leyba didn't unequivocally invoke his right to counsel, and Leyba continued the conversation with the detectives (not the other way around).

2. Standard of Review

¶ 12 Whether a district court erred by refusing to suppress evidence presents a mixed question of fact and law. See People v. Bradshaw , 156 P.3d 452, 455 (Colo. 2007). We defer to the court's factual findings if they are supported by the record but review the court's legal conclusions de novo. Id. at 455-56. Where the statements in question are recorded, and there aren't any disputed, relevant facts, we are in as good a position as the district court to decide the issue. People v. Kutlak , 2016 CO 1, ¶ 13, 364 P.3d 199 ; People v. Madrid , 179 P.3d 1010, 1014 (Colo. 2008).

3. Applicable Law

¶ 13 To be sure, a suspect has a right to have counsel present during a custodial interrogation. See Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When a suspect unambiguously and unequivocally invokes his right to counsel during an interrogation, the police must scrupulously honor that request. Edwards v. Arizona , 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Simply put, after invocation, police must stop interrogating the defendant until counsel has been made available to him or until the defendant voluntarily reinitiates communication with the police. Id. The purpose of this bright-line rule is to protect a defendant from being badgered or coerced into waiving his rights. Davis v. United States , 512 U.S. 452, 458, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) ; see also Smith v. Illinois , 469 U.S. 91, 98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (per curiam) ("In the absence of such a bright-line prohibition, the authorities through ‘badger[ing]’ or ‘overreaching’ — explicit or subtle, deliberate or unintentional — might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel's assistance.") (citations omitted).

¶ 14 In practice, we most often answer two questions when assessing whether the " ‘rigid’ prophylactic rule" of Edwards applies: First, did the suspect unambiguously invoke his right to counsel; and second, did the suspect initiate the succeeding conversation and then knowingly and intelligently waive the right he previously invoked? Smith , 469 U.S. at 94-95, 105 S.Ct. 490 (quoting Fare v. Michael C. , 442 U.S. 707, 719, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) ).¹ This case, however, raises the additional, subsidiary question implicit in the second: Did the law enforcement officer ever stop interrogating the suspect? The framework for addressing these three questions is relatively clear.

¶ 15 A suspect unambiguously requests counsel if he "articulate[s] his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis , 512 U.S. at 459, 114 S.Ct. 2350 ; see also Kutlak , ¶ 23 (clarifying that an unambiguous invocation is one that a reasonable police officer would...