People v. Lopez, No. 94CA1171

Docket NºNo. 94CA1171
Citation946 P.2d 478
Case DateJanuary 23, 1997
CourtCourt of Appeals of Colorado

Page 478

946 P.2d 478
21 Colorado Journal 117
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
John LOPEZ, Defendant-Appellant.
No. 94CA1171.
Colorado Court of Appeals,
Div. III.
Jan. 23, 1997.
As Modified on Denial of Rehearing
May 8, 1997.
Certiorari Denied Nov. 10, 1997.

Page 480

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, David K. Rees, Special Assistant Attorney General, Denver, for Plaintiff-Appellee.

Frolich & Jensen, LLC., Lindy Frolich, Denver, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, John Lopez, appeals the judgment of conviction entered on a jury verdict finding him guilty of first degree felony murder, second degree burglary, theft, and robbery. We reverse and remand for a new trial.

In March 1993, defendant's stepfather was beaten and stabbed to death in the bedroom of his home. A safe containing an estimated $170,000 in cash and jewelry was taken from the home during the attack. No other valuables were removed.

Defendant and a friend of his were immediate suspects and defendant was first questioned about the crime in March 1993. Although police lacked sufficient evidence to make an arrest, defendant's mother remained in contact with the investigating officer, urging him to solve the murder. The officer told her that defendant and his friend were involved in the crime, but that the police lacked evidence to arrest them.

In a bizarre series of events, defendant's mother became entangled in the case against defendant. In July 1993, she allegedly assaulted him in the parking lot of a grocery store. Two days later she went to see him, held a loaded gun to his head, and threatened to kill him, herself, and his younger sister unless he went to the police to talk to the investigating officer. That visit occurred on a Friday and she gave him until Sunday to agree to her ultimatum.

The following Monday defendant appeared at the police station. He was interrogated there about the murder that day and he also left and returned every day during the next four days for further interrogation. Not only was defendant's mother present at the interrogations, but she actively assisted in questioning defendant. During these interviews, which lasted nearly 30 hours over the course of the five days, defendant admitted involvement in the theft. In doing so, he implicated himself as a complicitor in the murder of his stepfather and also in a previous theft from the stepfather's home. Defendant's confession was the primary evidence which led to the convictions at issue here.

Page 481


Defendant first contends that the statements he made during his interviews with police were involuntary and should have been suppressed. We disagree.

The prosecution may not use a defendant's involuntary statements for any purpose at trial. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); People v. Branch, 805 P.2d 1075 (Colo.1991).

A statement is involuntary if coercive governmental conduct played a significant role in inducing it. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); People v. Dracon, 884 P.2d 712 (Colo.1994); see also People v. Whalin, 885 P.2d 293 (Colo.App.1994). Such activity can take the form of overt physical abuse and threats or subtle forms of psychological coercion. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); People v. Gennings, 808 P.2d 839 (Colo.1991).

In determining voluntariness, a court should consider the totality of the circumstances. People v. Breidenbach, 875 P.2d 879 (Colo.1994). Factors to be considered include:

[W]hether 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.

People v. Gennings, supra, 808 P.2d at 844.

A trial court's factual findings regarding voluntariness are entitled to deference on review. People v. Breidenbach, supra. However, the ultimate determination whether a statement is voluntary is a legal question and is reviewed de novo. See People v. Gennings, supra; see also Arizona v. Fulminante, supra.

Here, after a lengthy hearing and after viewing many hours of the videotaped interviews with defendant, the trial court made clear, specific findings relating to each factor specified in People v. Gennings, supra. Based on the totality of the circumstances, it determined with full record support that, although coercive techniques were used at various points in the interrogation, defendant's final statements regarding his role in the offenses nevertheless were voluntary and did not result from coercive police tactics.

We also find no error in the trial court's conclusion that defendant's mother was not an agent of the police.

Constitutional violations resulting in the exclusion of evidence generally do not apply to evidence obtained by private parties or evidence resulting from the conduct of private parties. See Colorado v. Connelly, supra (outrageous behavior by private party seeking to secure confession against a defendant does not make evidence inadmissible under Due Process Clause). An exception to this rule exists when private persons become agents of the police by virtue of their suggestion, order, request, or participation for purposes of criminal investigation. People v. Henderson, 38 Colo.App. 308, 559 P.2d 1108 (1976).

The test as to whether a private citizen has acted as an agent of the police for purposes of criminal investigation is whether the person "in light of all the circumstances of the case, must be regarded as having acted as an 'instrument' or agent of the state." Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2049, 29 L.Ed.2d 564, 595 (1971). Critical factors include

Page 482

whether the prosecution knew of and acquiesced in the intrusive conduct, and whether the party performing such intrusive conduct intended to assist law enforcement efforts. United States v. Black, 767 F.2d 1334 (9th Cir.1985), cert. denied, 474 U.S. 1022, 106 S.Ct. 574, 88 L.Ed.2d 557 (1985).

Here, the trial court found that the police did not initiate, induce, or acquiesce in the alleged assault and the gun incident preceding the police interrogations. Thus, while the involvement of defendant's mother in his interrogation was highly unusual and we do not condone it, we conclude that the trial court did not err in finding her conduct relevant to the totality of circumstances surrounding defendant's statements, but in not treating her as a police agent.

Accordingly, the trial court did not err in admitting the defendant's statements.


However, we do agree with defendant's next contention that the trial court erred in excluding the testimony of defendant's expert witness at trial. We further conclude that such error was not harmless and requires a new trial.

The expert witness whom the defense sought to call was a psychologist who had interviewed defendant in February and April 1994. In early May 1994, after the pretrial suppression hearing at which defendant's statements were held to be voluntary, defendant endorsed the witness and trial was scheduled for May 16.

In granting the prosecution's motion to strike the endorsement of defendant's expert witness, the trial court stated two reasons: (1) the expert testimony was irrelevant; and (2) the testimony should be excluded as a sanction for defendant's failure timely to endorse the expert witness pursuant to Crim. P. 16.

A. Relevancy

The reason emphasized by the trial court in rejecting defendant's expert testimony was that it went only to the voluntariness of defendant's statements. And because the voluntariness issue had already been decided adversely to defendant, the court viewed the expert testimony as irrelevant.

However, in Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), the United States Supreme Court faced a situation nearly identical to that before us. There, as here, a youthful defendant sought to introduce testimony regarding the physical and psychological environment surrounding his out-of-court confession. And there, as here, the trial court ruled the testimony inadmissible on the basis that it pertained solely to the issue of voluntariness.

In a unanimous opinion the Supreme Court reversed the conviction, holding that: (1) although the voluntariness issue had been determined by the trial court, defendant nevertheless had the right to present evidence to show the jury his confession, which was the principal component of the prosecution's case, was unworthy of belief; and (2) exclusion of the defendant's evidence about the circumstances of his confession deprived defendant of his constitutional right to a fair opportunity to present his defense.

We view Crane v. Kentucky, supra, as dispositive. Here, as in Crane, even though the issue of...

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