People v. MacCallum, 96SA124
| Decision Date | 23 September 1996 |
| Docket Number | No. 96SA124,96SA124 |
| Citation | 925 P.2d 758 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Stephen Andrew MacCALLUM, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Alexander M. Hunter, District Attorney, Twentieth Judicial District, William F. Nagel, Appellate Chief Deputy District Attorney, Steven Louth, Deputy District Attorney, Boulder, for Plaintiff-Appellant.
David F. Vela, Colorado State Public Defender, Steven K. Jacobson, Deputy State Public Defender, Boulder, for Defendant-Appellee.
This interlocutory appeal is brought, pursuant to section 16-12-102(2), 8A C.R.S. (1996 Supp.), and C.A.R. 4.1, by the District Attorney for the Twentieth Judicial District challenging various rulings of the trial court suppressing evidence in connection with a case alleging vehicular homicide while the defendant, Stephen Andrew MacCallum (MacCallum), was driving under the influence of alcohol, and other related offenses.
The trial court found that officers did not have probable cause to administer blood alcohol tests of MacCallum and therefore suppressed the test results. The court also suppressed any and all statements MacCallum made to officers while hospitalized and during transport to jail, based on Crim. P. 5 (Rule 5). 1 In addition, statements made by MacCallum to transporting officer Jon Judson (Judson) were suppressed under Miranda. 2
We reverse the suppression orders, except for that part of the trial court's order which suppressed, under Miranda, the contents of the conversation between MacCallum and Judson on the day of transport. As to that conversation, we do not address the prosecution's challenge to the suppression order under Miranda because the record does not convince us that any statements made to Judson are a substantial part of the proof of the charge pending against MacCallum within the meaning of C.A.R. 4.1(a). Finally, we remand to the district court for the purpose of making additional findings of fact and conclusions of law regarding Miranda issues implicated by any statements MacCallum made to police officers other than Judson while in the hospital, if the prosecution identifies such statements as part of its proof in the case.
At mid-day on August 18, 1995, approximately fifteen miles north of the city of Golden, a Nissan pickup truck proceeding northbound on Highway 93 towards Boulder swerved into the southbound lane and collided head-on with a Toyota pickup truck. The driver of the southbound vehicle died as a result of the impact and fire.
MacCallum was taken unconscious from the wrecked northbound Nissan to Vista Medical Hospital. At the scene, investigating officers interviewed witnesses who were driving behind the Nissan truck. Trooper Robert Kropp (Kropp) of the Colorado State Patrol testified that he and other officers were told by witnesses John and Jennifer Johnson (the Johnsons), within ten to fifteen minutes of the collision, that they had followed the Nissan truck approximately fifteen miles from the Golden area. The Johnsons reported that the driver of the Nissan was "tailgating ... off on the shoulder once or twice," and "driving erratically the whole time, varying speeds." The Johnsons "watched him make a bad pass on the double yellow and impact with the southbound truck." On the basis of the dangerous driving they observed, the Johnsons said that they "believed that the driver was intoxicated."
Harold M. Tyus (Tyus) testified at the suppression hearing that he witnessed the collision when driving northbound on Highway 93 and spoke to officers at the scene. This conversation was later reduced to a sworn statement. Kropp recalled that Tyus stated at the scene that the driver of the Nissan was "tailgating him ... speeding up and slowing down, leaving his lane, attempting to pass, not pass, so on, so forth." Around Mile Marker 13, the "driver of the blue Nissan truck passed him over that double yellow and impacted with the southbound pickup truck."
Kropp's investigation included looking inside the Nissan. He saw a prosthetic leg on the driver's seat. He said he detected the odor of an alcoholic beverage and also smelled radiator fluid and gasoline. There were no visible alcohol containers.
Officers made arrangements with Vista Hospital to take two blood samples. The first was taken from MacCallum approximately two hours after the accident, the second sample was taken thereafter. The respective test results showed 0.145 and 0.117 grams of ethyl alcohol per 100 milliliters of blood.
After emergency treatment at Vista Hospital, MacCallum was hospitalized at Denver General Hospital from August 18, 1995, to September 7, 1995. For the first fifteen days MacCallum was in the intensive care unit. After MacCallum was released from intensive care, a police guard was posted outside the door of his hospital room during the duration of his hospitalization. MacCallum was transported from Denver General Hospital to the Boulder County jail on the afternoon of September 7, 1995, and was given his Rule 5 advisement in court on the following day.
When Judson, of the Colorado State Patrol, walked into MacCallum's hospital room on the day of transport, he introduced himself and placed MacCallum under arrest. A brief conversation ensued regarding the prosthetic leg, which had been brought to the hospital by MacCallum's brother from the accident scene. Judson asked MacCallum whether he wished to wear the prosthetic device. MacCallum responded that the artificial leg had been broken in the accident and could not be worn.
On the way from Denver General Hospital to the Boulder County jail, Judson and MacCallum engaged in conversation. Judson quoted MacCallum as saying Additionally, MacCallum was concerned about being in jail because of his physical condition. He raised his shirt to show Judson his injury explaining that he was worried because a rib protecting his heart had been removed. MacCallum asked Judson what charges would be filed against him. Judson told MacCallum "driving under suspension, passing on a yellow line, driving under the influence" and vehicular homicide. Brief conversation about vehicle registration and insurance for the Nissan, and MacCallum's concern about personal effects he left in the Nissan, also occurred.
At the suppression hearing, Judson testified that it was not his practice to interrogate prisoners during transport. He engaged in conversation with MacCallum because he "was feeling kind of sorry for him for the predicament he was in." MacCallum testified at the suppression hearing but provided scanty detail about the conversation or the attendant circumstances in the hospital room or patrol car. The record of the conversation between MacCallum and Judson, and the context in which that conversation occurred, consists primarily of Judson's direct and cross-examination testimony at the suppression hearing.
At no time prior to the Rule 5 in-court advisement was MacCallum advised of his rights to remain silent and to have the assistance of counsel, and that any statements he might make could be used as evidence against him.
The trial court suppressed the blood test results as having been obtained without probable cause, ruling that Kropp could not have smelled alcohol because of the anti-freeze, smoke, and gasoline fumes at the scene of the accident. The court concluded that evidence of erratic driving was not sufficient to constitute probable cause for an alcohol-related offense. The court also determined that, because police officers were posted outside his hospital door, MacCallum was under arrest four or five days prior to his transport to Boulder County jail on September 7, that he could have been afforded a Rule 5 hearing while in the hospital, and that undue delay in giving the Rule 5 advisement had occurred. Accordingly, under Rule 5, the court suppressed MacCallum's statements in the hospital and during transport. The court further ruled that MacCallum's conversation with Judson on the day of transport must be suppressed under Miranda.
First we examine whether officers had probable cause to arrest MacCallum for an alcohol-related driving offense, 3 whether there existed to investigating officers a clear indication that the blood samples, if taken, would provide evidence of intoxication, whether exigent circumstances existed for taking the blood samples, and whether the blood tests were reasonably conducted.
In People v. Sutherland, 683 P.2d 1192 (Colo.1984), we enumerated the criteria that must be established before obtaining a blood sample involuntarily from a putative defendant:
First, there must be probable cause for the arrest of the defendant on an alcohol-related driving offense. Second, there must be a clear indication that the blood sample will provide evidence of the defendant's level of intoxication. Third, exigent circumstances must exist which make it impractical to obtain a search warrant. Fourth, the test must be a reasonable one and must be conducted in a reasonable manner.
Id. at 1194; accord, e.g., People v. Reynolds, 895 P.2d 1059, 1060 (Colo.1995).
The trial court correctly determined that probable cause to arrest the defendant for an alcohol-related driving offense is the "threshold requirement before a blood sample may be involuntarily extracted from a defendant." In ruling that probable cause did not exist, the court stated that "[i]t is clear from the cases that something more than aberrant driving behavior is necessary to support a probable cause finding." The trial court also found that Kropp could not have smelled an alcoholic beverage in the...
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