People v. Lucas, 98CA0129.

• Decision Date: 04 March 1999
• Docket Number: No. 98CA0129.,98CA0129.
• Citation: 992 P.2d 619
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Larry D. LUCAS, Defendant-Appellant.
• Court: Colorado Court of Appeals

992 P.2d 619

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Larry D. LUCAS, Defendant-Appellant.

No. 98CA0129.

Colorado Court of Appeals, Div. I.

March 4, 1999.

As Modified on Denial of Rehearing June 24, 1999.

Certiorari Denied February 14, 2000.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Kathleen M. Byrne, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

The Tannous Law Firm, K. John Tannous, Trinidad, Colorado, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Larry D. Lucas, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree murder (felony murder) and robbery. We affirm the conviction and remand for correction of the mittimus.

While the El Paso County Department of Social Services (Department) had legal and physical custody of him, defendant, who was sixteen, ran away from a group home in Colorado Springs. Some three months thereafter, he and a group of friends began hitchhiking with the stated goal of leaving Colorado.

After traveling for three days, the group obtained a ride from the victim. Before entering his vehicle, the group agreed that they would "jump" the victim and take his car. After the victim stopped the car, the group did so. During the ensuing scuffle, two members of defendant's group held the victim's head underwater while strangling him, resulting in the victim's death. During the assault, defendant took the victim's jewelry and keys, and the group then left the scene in the victim's vehicle.

Less than two weeks later, defendant was arrested in Nevada. After he made incriminating statements in two separate interrogations by the police, he was extradited to Colorado where he was convicted of the above crimes as an adult. This appeal followed.

I.

Defendant first contends that, because he was sixteen and not emancipated at the time he gave his incriminating statements and neither his parent, custodian, nor guardian was present during the questioning, the trial court erred in refusing to suppress his statements. Specifically, he asserts that, since the Department had legal and physical custody of him, a guardian ad litem had been appointed for him, and his mother had not given real or apparent assent to his independence, the trial court erred in finding that he was emancipated. We reject these contentions.

A.

In general, a statement given by a juvenile during custodial interrogation is not admissible unless a parent, guardian, or legal custodian is also present at the time of the interrogation. Section 19-2-511(1), C.R.S.1998; Nicholas v. People, 973 P.2d 1213 (Colo.1999); People in Interest of M.R.J., 633 P.2d 474 (Colo.1981). However, if a juvenile is emancipated from the parent, guardian, or legal or physical custodian, statements made without such an adult being present are admissible. Section 19-2-511(2), C.R.S.1998.

Section 19-1-103(45), C.R.S.1998 (in effect here as Colo. Sess. Laws 1996, ch. 19, § 19-1-103(45)) states, in pertinent part:

An `emancipated juvenile' ... means a juvenile over fifteen years of age and under eighteen years of age who has, with the real or apparent assent of his parents, demonstrated his independence from his parents in matters of care, custody, and earnings. The term may include, but is not limited to, any such juvenile who has the sole responsibility for his own support.

Whether emancipation has been established must be determined with reference to the specific facts and circumstances of each case. Thus, the trial court's findings concerning a juvenile's emancipation will be upheld if there is evidence in the record to support them. See Napolitano v. Napolitano, 732 P.2d 245 (Colo.App.1986)

; Poudre Valley Hospital District v. Heckart, 491 P.2d 984 (Colo.App.1971) (not selected for official publication).

Here, defendant's father was deceased. The trial court found that defendant was totally on his own for three months without any financial, emotional, spiritual, or physical assistance from his mother or his guardian. It found that his mother had absolved herself of any meaningful relationship with her son, and concluded that defendant was emancipated at the time of the interrogations.

There is record support for these findings. In April 1996, defendant's mother had filed a police report alleging that defendant had stolen her husband's car. Thereafter, defendant was adjudicated a delinquent, and his legal and physical custody was given to the Department pursuant to a court order. Defendant was subsequently placed in a group home for juveniles run by the Department.

On July 20, 1996, defendant left the group home without permission and was considered absent without leave. Between July 20 and October 12, 1996, the date of his arrest, defendant did not voluntarily return to the group home. He was involuntarily returned there for one night in August before fleeing again.

While living on his own for approximately three months, defendant did not receive any financial support from his mother or his legal custodian.

In October 1996, when the police contacted defendant's mother regarding the incident involved in this case, she informed them that she had no idea where her son was and that he had not contacted her. She apparently had seen him once in a parking lot, but when she tried to approach him, he fled.

During an interview with the police after his arrest, a police officer had asked the defendant if he wanted his mother to be notified. Defendant told the officer, "No, I'll take care of it." Also in one of the police interviews, defendant had indicated to police that he did not know his mother's telephone number because it had been changed since he left.

Thus, the evidence supports the court's determination that defendant was emancipated to the extent he was independent from his mother in matters of care, custody, and earnings.

B.

Defendant nevertheless asserts that his mother did not give her assent to his independence. We disagree.

Even though defendant's mother testified that she had not given her assent to defendant living on his own, the statute specifies that a parent's assent can be real or apparent. Implicit in the trial court's findings and conclusions is a determination that the consent of defendant's mother was apparent. The record supports this conclusion.

For the same reasons, we conclude that defendant was emancipated from his guardian and legal and physical custodian. See § 19-2-511(2), C.R.S.1998.

C.

Defendant, however, contends that, regardless of the above-described circumstances, he could not be emancipated, as a matter of law, because legal and physical custody of him had been given to the Department. We disagree.

As to this issue, we are unaware of any authority directly on point; however, we do note that § 19-2-511(2), C.R.S.1998, specifically states that if the juvenile "is emancipated from the parent, guardian, or legal or physical custodian," the juvenile's statements to police are admissible (emphasis added). Thus, the language of the statute implicitly recognizes that a juvenile may be emancipated from the custody of someone other than a parent, and that pronouncement, in our view, includes the state. See § 19-1-115, C.R.S.1998 (state agency or institution may be legal custodian or guardian).

We are aware that arts. IV and V of the Interstate Compact on Juveniles, § 24-60-702, C.R.S 1998, which provide for the return of runaway juveniles, might be read to support defendant's contention. Under art. IV of the Compact, when a juvenile, who has not been adjudicated delinquent, runs away without the consent of the parent, guardian, person, or agency entitled to legal custody, such custodian may petition for the issuance of a requisition for the return of the juvenile, but must allege facts in the petition to show that the juvenile is not an emancipated minor. However, under art. V, when a runaway juvenile has been previously adjudicated delinquent, the custodian need say nothing in the petition concerning emancipation. Arguably, therefore, a delinquent juvenile cannot be emancipated.

We reject this interpretation. In our view, the difference turns not on emancipation, but jurisdiction. A custodian and a demanding state would have no interest, jurisdictional basis, or nexus to petition for return of a non-delinquent juvenile who is emancipated. A fully emancipated juvenile would be entitled to exercise all rights of adulthood and, absent involvement in the juvenile or criminal justice system, would not need to account to a former custodian or state concerning his or her whereabouts or well-being.

In contrast, however, there would be a proper basis to seek return of a delinquent juvenile, because the custodian and the state have an interest in, and jurisdiction for, satisfaction of the legal terms and conditions imposed because of the delinquency. Whether such a juvenile was emancipated would be irrelevant to whether he or she could be returned to face the consequences of the delinquent acts in this state. See § 19-2-102, C.R.S.1998 (jurisdiction of the juvenile court may continue until all orders have been complied with or the juvenile reaches the age of twenty-one, whichever first occurs).

Moreover, to prohibit the use of inculpatory statements of a delinquent juvenile who is emancipated in fact, because he or she is a ward of the state and therefore could not be emancipated as a matter of law, while admitting statements of juveniles who were also emancipated but not delinquent, seems anomalous at best.

Accordingly, the trial court did not err in concluding that defendant was emancipated, and thus, his inculpatory statements were admissible.

II.

Defendant also contends his statements should have been suppressed because he was under the influence of alcohol and/or drugs when interviewed. We disagree.

Confessions,...