People v. McDowell

• Decision Date: 05 March 2009
• Citation: People v. McDowell, 219 P.3d 332 (Colo. App. 2009)
• Docket Number: 07CA1358
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles William McDOWELL, Defendant-Appellant.
• Court: Colorado Court of Appeals

219 P.3d 332

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v.Charles William McDOWELL, Defendant-Appellant.

No. 07CA1358.

Colorado Court of Appeals, Div. II.

March 5, 2009.

John W. Suthers, Attorney General, Jonathan P. Fero, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Kathy Goudy, Carbondale, Colorado, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Charles William McDowell, appeals the order denying his Crim. P. 35(c)postconviction motion.He contends that the postconviction court erred when, after concluding that the evidence raised a presumption that he was improperly subjected to an interrogation style held unconstitutional in Missouri v. Seibert,542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643(2004), it denied relief on his outrageous governmental conduct claim because it concluded that Seibert was not retroactively applicable to his case.He also asserts that the court erred in denying a hearing on his ineffective assistance of counsel claim.We conclude that defendant's outrageous governmental conduct claim is procedurally barred, that Seibert is not retroactively applicable to this case, and that his allegations of ineffective assistance are refuted by the record.Accordingly, we affirm.

The facts surrounding defendant's confession to the 1998 murder of his wife are undisputed.Within forty-eight hours of his wife's death, he agreed to meet and speak with law enforcement officials at a local hotel.The initial interview, conducted by a Colorado Bureau of Investigation agent and an investigator from the district attorney's office, began at approximately 4:30 p.m. and continued for nearly five hours.Defendant, who participated without counsel, did not receive warnings under Miranda v. Arizona,384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966), during this interview.He made several potentially inculpatory statements, but did not confess.

A second interview began at around 9:45 p.m. Defendant then agreed to take two polygraph tests, both of which he failed.The local police chief, a personal acquaintance of defendant, then began additional questioning.After informing defendant that he had failed the polygraphs, the chief told defendant that further discussions would occur "only after Miranda and only if he agreed to waive his rights."At 11:30 p.m., another officer advised defendant of his Miranda rights, after which defendant waived his rights and confessed to killing his wife.He was then taken to jail, where he attempted to commit suicide.Two suicide notes were recovered, both of which included confessions.

Defendant moved to suppress all the statements he had made.Finding that defendant was in custody at the hotel and that he had been subjected to custodial interrogation, the trial court suppressed statements defendant made before the administration of the Miranda warnings.However, after concluding that defendant had validly waived his Miranda rights, the court found that all his statements were voluntary and held admissible those he made after the warnings had been given.

Following trial, the jury convicted defendant of first degree murder, felony murder, aggravated robbery, and theft.The trial court sentenced defendant to life in prison without parole.

On direct appeal, defendant asserted, as relevant here, that his statements were not voluntary, his Miranda waiver was not valid, and the post-waiver confession was the fruit of the initial statements obtained in violation of Miranda.In an unpublished opinion, a division of this court affirmed the trial court's judgment.People v. McDowell,2002 WL 1764441(Colo.App. No. 00CA0149, Jan. 17, 2002)(not published pursuant to C.A.R. 35(f))(McDowell I).The supreme court denied certiorari.

In 2006, defendant filed the postconviction motion at issue here, asserting that he had been subjected to a blatant violation of his constitutional rights by outrageous governmental conduct and ineffective assistance of counsel.The postconviction court determined that, although a defendant may not generally relitigate matters fully and finally resolved in an earlier appeal, Crim. P. 35(c)andPeople v. Close,22 P.3d 933, 936(Colo. App.2000), aff'd,48 P.3d 528(Colo.2002), provide a narrow exception to that rule when a defendant asserts a "significant change in the interpretation of the law, of constitutional magnitude, determined since a defendant's direct appeal was affirmed" by a "court whose decisions are binding."SeeCrim. P. 35(c)(3)(VI)(b)(court shall deny any postconviction claim that was raised and resolved in a prior appeal except a claim based on a new rule of constitutional law previously unavailable, if that rule has been applied retroactively by the United States Supreme Court or Colorado appellate courts);Crim. P. 35(c)(3)(VII)(c)(court shall deny any postconviction claim that could have been presented in an appeal previously brought, except for any claim based on a new rule of constitutional law previously unavailable, if that rule should be applied retroactively to cases on collateral review).

The court noted defendant had alleged that in Seibert,a case decided nearly two years after his conviction became final, the Supreme Court had declared unconstitutional the so-called "two-step" interview strategy.The court addressed the applicability of Seibert and determined that the allegations in defendant's motion raised an initial presumption that the administration of Miranda warnings was insufficient to remove the taint of the prewarning phases of the interrogation.It then addressed whether Seibert applied retroactively, concluded that it did not, and determined that defendant's allegations of ineffective assistance of counsel were refuted by the record.It did not directly review defendant's claim of outrageous governmental conduct.This appeal followed.

I.Is Defendant's Claim Barred?

Defendant asserts that the postconviction court erred in denying relief on his outrageous governmental conduct claim once it concluded that the evidence raised a presumption that he was improperly subjected to an interrogation style held unconstitutional under Seibert.The People assert that defendant's outrageous governmental conduct claim is procedurally barred.We agree with the People.

Crim. P. 35 proceedings are intended to prevent injustices after conviction and sentencing, not to provide perpetual review.People v. Hampton,187 Colo. 131, 133, 528 P.2d 1311, 1312(1974).A defendant cannot use a Crim. P. 35 proceeding to relitigate matters that were fully and finally resolved in an earlier appeal.SeePeople v. Rodriguez,914 P.2d 230, 249(Colo.1996).

In addition to matters that were actually resolved, "an argument raised under Rule 35 which does not precisely duplicate an issue raised on appeal will be precluded if its review `would be nothing more than a second appeal addressing the same issues on some recently contrived constitutional theory.'"Id.(quotingPeople v. Bastardo,646 P.2d 382, 383(Colo.1982));seePeople v. Versteeg,165 P.3d 760, 764(Colo.App.2006)(a defendant may not use Crim. P. 35(c) to relitigate an issue resolved on direct appeal unless he shows the claim fits within certain exceptions).

Defendant asserts that he suffered a violation of his constitutional rights by the outrageous governmental conduct of law enforcement officers and the district attorney's office.We must therefore determine whether this claim involves an issue previously resolved on direct appeal.

Outrageous governmental conduct was first recognized as a defense in this state in Bailey v. People,630 P.2d 1062, 1068(Colo.1981).To successfully assert this defense, a defendant must show that his constitutional due process rights have been violated by the actions of government officials to such a degree as to violate fundamental fairness and shock the universal sense of justice.People v. Vega,870 P.2d 549, 553(Colo.App.1993), aff'd,893 P.2d 107(Colo.1995);People v. Aponte,867 P.2d 183, 185(Colo.App.1993).

When the claim is appropriately raised, a trial court must determine if there has been outrageous government conduct by reviewing the totality of the facts in a given case.People in Interest of M.N.,761 P.2d 1124, 1129(Colo.1988).This determination lies within the trial court's discretion and will not be overturned on appeal absent an abuse of that discretion.People v. Medina,51 P.3d 1006, 1011(Colo.App.2001), aff'd sub nom.Mata-Medina v. People,71 P.3d 973(Colo.2003).

Here, defendant asserted in his motion that the police and the district attorney's office had engaged in "outrageous governmental conduct [that] led to the obtaining of statements in a conscious decision to withhold Miranda warnings, to question first, then give the warnings, and then repeat the questions."We conclude that defendant's interrogation and confession have already been examined and his claims for suppression have been rejected by the trial court and likewise reviewed with the same result on direct appeal.We further conclude that defendant's current claim involves the issue previously resolved on direct appeal.

Although couched as an outrageous conduct claim, defendant's essential argument is that his confession was coerced and involuntary.His assertion thus duplicates the issue raised on direct appeal that his statements were involuntary under the principles outlined in People v. Gennings,808 P.2d 839, 844(Colo.1991), and were inadmissible under Miranda.

We find further support for this conclusion when we examine the essential underpinnings of the outrageous governmental conduct claim and compare those with the principles underlying Miranda.Outrageous governmental conduct involves conduct by government agents that violates fundamental fairness and shocks the universal sense of justice.The claim is based on due process of law.Medina,51 P.3d at 1012.

Before Miranda...