People v. Madson

• Decision Date: 15 March 1984
• Docket Number: No. 82CA0922,82CA0922
• Citation: 689 P.2d 639
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Alfred MADSON, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 639

689 P.2d 639

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Alfred MADSON, Defendant-Appellant.

No. 82CA0922.

Colorado Court of Appeals Div. II.

March 15, 1984.

Rehearing Denied April 12, 1984.

Certiorari Denied Oct. 9, 1984.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Daniel Dailey, Chief, Crim. Appeals, Denver, for plaintiff-appellee.

Mitchell & Mitchell, P.C., Rexford L. Mitchell, Michael T. Mitchell, Rocky Ford, for defendant-appellant.

SMITH, Judge.

Geneva Van Hee was found dead in the passenger's seat of her car on December 26, 1977. She died as a result of a single bullet wound to the head. Alfred Madson was charged and convicted by a jury of murder in the first degree. He appeals and we affirm.

This case has twice previously been the subject of appeal. People v. Madson, 196 Colo. 507, 586 P.2d 1338 (1978) (interlocutory appeal from suppression order--Madson I); People v. Madson, 638 P.2d 18 (Colo.1981) (conviction reversed and re-trial ordered--Madson II). To the facts stated in the previous cases, we add only those additional facts necessary to our decision here.

I.

Defendant's first contention is that he was detained in violation of his Fourth Amendment rights and that, therefore, all evidence obtained during the period of his alleged illegal detention should be suppressed. We disagree.

Defendant filed a motion to suppress statements and evidence seized by police officers from him on December 26, 1977. See Madson II, supra. He claims that he was unconstitutionally detained and that therefore the statements he made, and the evidence which was subsequently seized by the police on that date should not have been admitted into evidence against him at his trial.

A suppression hearing was held on March 18, 1982, during which the trial court took judicial notice of the transcript of the previous suppression hearing held from July 31, 1978, through August 3, 1978. Further argument was heard at that time.

The trial court found that at 5:30 p.m. five police officers went to defendant's apartment to question him concerning the death of Geneva Van Hee. The People concede that at that time they lacked probable cause to arrest defendant.

Two of the officers were in uniform; the other officers were in street clothes. The uniformed officers accompanied the plainclothes officers because of the possibility, the crime being murder, that defendant might be armed. The trial court found that the two uniformed officers stationed themselves near the entrance to the common hallway and out of sight of the defendant's apartment door. The plainclothes officers then knocked on the defendant's door and identified themselves as policemen. Sergeant Bell, who was in charge of the investigation, advised defendant when he opened the door that they were investigating the death of Geneva Van Hee, and that he (defendant) need not permit their entry into the apartment. Defendant then invited the officers into his apartment.

A "consent to search" form was offered by Sergeant Bell to the defendant, and was signed by him. The trial court found that before signing the form, defendant was expressly told several times that he need not consent to the search. Nevertheless, he signed the consent.

Officer Bell then proceeded to advise the defendant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Certain incriminating statements were thereafter made to the police as they searched the defendant's apartment.

Once the search was completed, Officer Bell asked the defendant if he would like to accompany the officers to the local sheriff's department and then to the police department in La Junta, Colorado, for further discussions. The defendant agreed. The trial court found that, despite the fact that the defendant was told at least once, "if not numerous times," that he was free to decline the officer's request to accompany them, the defendant chose voluntarily to go with the officers.

The defendant was offered the choice of taking his own automobile or riding with the police in a police vehicle to the sheriff's office. The defendant elected to ride in the front seat of the police vehicle to the sheriff's office. At the sheriff's office the defendant was, with his consent, fingerprinted and again was told that he did not have to go with the officers to the police department in La Junta. Nonetheless, he agreed to go.

At the police department the defendant answered questions concerning his shoes, whereupon the shoes were taken into custody by Sergeant Bell. This seizure was upheld by the Supreme Court in Madson I. The ruling relative to that seizure we consider to be the "law of the case." See People v. Roybal, 672 P.2d 1003 (Colo.1983).

The defendant thereafter suggested that he would like to speak with an attorney, whereupon all questioning ceased. A telephone was made available to him, and he was again told that he was free to leave and that he was not under arrest. Defendant thereupon indicated his desire to leave and he was driven to his home by the officers.

The question of whether defendant's statements made during this period of time should be suppressed, as being the product of an arrest or seizure without a warrant or without the existence of probable cause to arrest, turns on the issue of whether there was, in fact, an arrest or seizure in the constitutional sense. Our Supreme Court has said in People v. Pancoast, 659 P.2d 1348 (Colo.1982):

"Admittedly, when a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person in a constitutional sense.... It does not follow, however, that every personal confrontation between a police officer and a citizen, which results in some form of interrogation directed to the citizen, necessarily involves a 'seizure' of the person.... 'Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of the citizen may [a court] conclude that 'a seizure' has occurred.' "

The test for determining if a seizure has occurred is whether in view of all the circumstances a reasonable person would have believed that he was not free to leave. U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct 1870, 64 L.Ed.2d 497 (1980); People v. Johnson, 671 P.2d 958 (Colo.1983); People v. Pancoast, supra; see also People v. Bookman, 646 P.2d 924 (Colo.1982).

The trial court, in addressing this issue, found that the defendant's freedom of movement was not restrained by physical force or show of authority. It found that he was free to disregard the questions and requests of the officers and terminate at will the contact between himself and the authorities. There was no display of weapons, no physical touching of the defendant's person, no use of language or tone of voice indicating that compliance with the officers' requests might be compelled. There was a total lack of threat, force, or coercion. Requests were uniformly made of the defendant and not demands. Each request was preceded by, or immediately followed by, an explanation that the defendant need not comply with the request.

In conclusion, it found that:

"[T]he evidence reflects that at all times during face-to-face contact between the defendant with any of the police officers, the demeanor of the officers was low key, quiet, considerate, and polite. The demeanor of the defendant at all times, until he terminated the contact was cooperative and nonargumentative."

The trial court, citing Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), then concluded:

"[A]s a matter of law ... a reasonable man would not believe that he was deprived of his freedom of movement in any significant way and that the defendant believed that he was free at any time to depart the presence of the police officer or officers then present. In fact, at the instance [sic] of the defendant he did leave the police station, not only without hindrance, but with the assistance of the authorities."

The trial court's findings of fact justified its conclusion that defendant was not arrested or seized in the constitutional sense, and our own independent review of the entire record shows ample support for the trial court's findings. See Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976). Hence, there was no error in the trial court's refusal to suppress the statements and other evidence obtained from the defendant during this period.

II.

Defendant next argues that the trial court erred in denying his motion to suppress the results of a test which was performed on a spot, or stain, believed to be blood, found upon his shoe. Because the spot was destroyed in the testing process, the defendant did not have an opportunity to test it independently. He argues that, as a matter of due process, the test results should have been suppressed in compliance with the rule announced in People v. Garries, 645 P.2d 1306 (Colo.1982), which he argues should be applied retroactively. We do not reach the retroactivity question because we find Garries to be inapplicable to the case at bar.

During his questioning at the police station, defendant admitted that he was wearing the same shoes that he had been wearing on the night of the murder, and conceded that the stain or spot on one of them was probably blood. It was this colloquy which lead to confiscation of the shoes. They were sent to the laboratory at the Colorado Bureau of Investigation where the tests were performed. Testimony from the People's witnesses adduced at trial disclosed that because of the small amount of material in the spot, all that could be determined was that it was human blood. It was testified that, for the same reason, the entire spot was virtually destroyed in the testing process.

The right of a defendant independently to test evidence had its genesis in the case of Brady v....