People v. Pierson

• Decision Date: 11 October 1983
• Docket Number: No. 81SC211,81SC211
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Richard Austin PIERSON, Respondent.
• Court: Colorado Supreme Court

Page 770

670 P.2d 770

The PEOPLE of the State of Colorado, Petitioner, v. Richard Austin PIERSON, Respondent.

No. 81SC211.

Supreme Court of Colorado,

En Banc.

Oct. 11, 1983.

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., David K. Rees, Asst. Atty. Gen., Denver, for petitioner.

Massaro & Nugent, Nicholas R. Massaro, Jr., Sp. Deputy Public Defender, Grand Junction, for respondent.

ERICKSON, Chief Justice.

We granted certiorari to review People v. Pierson, 633 P.2d 485 (Colo.App.1981), which reversed the district court's denial of a motion to suppress statements made by the defendant at two different times and overturned Pierson's conviction for first-degree murder. We reverse the Court of Appeals in part and affirm in part, and return this case to the Court of Appeals with directions to remand to the district court for a further hearing and for a new trial.

I.

In the early morning hours of March 14, 1977, the defendant, Richard Austin Pierson, telephoned the Boulder police department and reported that Charles Schubert had committed suicide in his apartment. After investigating the death, the police determined that Schubert had been murdered. Evidence in the apartment and statements from Pierson's girlfriend led the police to suspect Pierson of murder. Pierson was taken to the Boulder Criminal Justice Center and advised of his Miranda rights. He chose not to waive his rights but said that he would talk to the detectives after he consulted his attorney. Pierson was permitted to call his probation officer and his parents. He told his parents to get him a lawyer.

Thereafter, a barium antimony test was made on Pierson's hands to determine if he had recently discharged a firearm. Before the test was performed, Pierson told Detective Sinclair that he had fired a rifle the day before at 7:00 p.m. at the Colorado University rifle range and asked whether it would affect the test. Detective Sinclair responded that the test would be affected if the rifle had been shot within six hours of the test. After the test was completed, Pierson repeated his concern that the results of the test would be inaccurate. Detective Sinclair questioned Pierson about the number of shots he had fired and Pierson stated that when he borrowed the rifle it had five rounds in the clip and that he and a friend, Clay Lance, had fired fifty rounds. In response to questions about where Lance lived, Pierson gave the detective directions to Lance's apartment. Later that day, Detective Sinclair learned that Lance had been in Colorado General Hospital for the previous four or five days. Lance's testimony was used at trial to impeach Pierson's explanation of his actions on the night of Schubert's death.

Following his arrest, Pierson made numerous requests to talk to the investigating officers. In an attempt to prevent Pierson from talking, defense counsel sought a protective order to prevent the police from questioning Pierson unless counsel were present. The district court denied the request for a protective order. However, at the hearing on the motion, the district attorney advised the court that the police would notify defense counsel prior to any subsequent interview of the defendant. The police, nevertheless, talked to Pierson on numerous occasions without notifying defense counsel.

On June 23, Pierson asked to talk to a detective about the burglary of his apartment. Detectives Epp and Sinclair interviewed Pierson at the jail on June 28, and again advised him of his Miranda rights. Pierson said he understood the warning, and agreed to talk with the police officers. After a short discussion of the burglary, Detective Epp asked the defendant if there was anything else he wanted to talk about. Pierson responded, "Yeah, there's a lot of things I want to tell you...." He then proceeded to give the officers an account of how he had fabricated a statement he had given in the murder investigation. After the detectives repeatedly asked Pierson about the murder and questioned his veracity, he confessed that he had shot and killed Schubert.

At the hearing on the defendant's motion to suppress, Pierson testified that he had made between ten and fourteen statements, and moved to have all the statements suppressed on the grounds that they were obtained in violation of his rights under the Fifth and Sixth Amendments to the United States Constitution. The district court suppressed all statements made between March 14 and June 28, but denied the motion to suppress the March 14 and June 28 statements. The court found that the March 14 statements were volunteered and not in response to questioning, and that the June 28 statements were obtained from the defendant after he had requested an interview and had waived his right to counsel. The court concluded that the defendant had knowingly and intelligently made the statements to the police. Subsequently, Pierson was convicted of first-degree murder and sentenced to life imprisonment.

The Court of Appeals concluded that the admission of the March 14 statement violated the defendant's Fifth Amendment Miranda rights and the admission of the June 28 statements deprived the defendant of his Sixth Amendment right to effective assistance of counsel and then reversed the defendant's conviction and remanded for a new trial. The Court of Appeals declared that once an accused requests counsel, any statements made without counsel present are per se inadmissible unless the defense attorney has been notified of the pending interview and given a reasonable opportunity to be present, or unless the defendant has expressly waived his right to counsel.

II.

The Miranda safeguards provide an accused protection against compelled self-incrimination which is the result of custodial interrogation. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); People v. Lowe, 200 Colo. 470, 616 P.2d 118 (1980). In Rhode Island v. Innis, 446 U.S. at 300-301, 100 S.Ct. at 1689-1690, the Supreme Court defined interrogation as either express questioning or its functional equivalent. The functional equivalent of questioning consists of "any words or actions on the part of the police [other than those normally attendant to arrest and custody] that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id. at 301, 100 S.Ct. at 1689.

In our view, the March 14 statements are comprised of two distinct parts: remarks made at the defendant's initiative and direct responses to questions asked by Detective Sinclair. We believe that the defendant's initial remarks about target practicing are not the result of custodial interrogation. Pierson's initial statements were not made in response to express questioning by Detective Sinclair. The defendant initiated the conversation about target practicing and Detective Sinclair's response was not custodial interrogation. What occurred during the performance of the barium antimony test is not the equivalent of express questioning. See People v. Sharpless, 635 P.2d 896 (Colo.App.1981).

The defendant's answers to Detective Sinclair's subsequent questioning were, however, the product of custodial interrogation and were obtained in violation of the defendant's Miranda rights. We have repeatedly held that once an accused requests counsel all questioning must cease. People v. Traubert, 199 Colo. 322, 608 P.2d 342 (1980); People v. Richards, 194 Colo. 83, 568 P.2d 1173 (1977); People v. Brake, 191 Colo. 390, 553 P.2d 763 (1976). A defendant's exercise of his privilege against self-incrimination must be scrupulously honored. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Here Pierson made an unequivocal request to talk to an attorney. Nevertheless, when Pierson expressed his concern about target practicing, Detective Sinclair began to probe and elicited incriminating information with questions directed to the number of rounds of ammunition Pierson had fired at the Colorado University firing range with Clay Lance. Pierson was also questioned about Lance's address. The record establishes that Detective Sinclair sought to obtain incriminating responses from the defendant. Detective Sinclair should have known that his questioning was reasonably likely to elicit an incriminating response. Rhode Island v. Innis, supra. Accordingly, we affirm the Court of Appeals' conclusion that the defendant's responses to Detective Sinclair's questioning should have been excluded at trial. However, we conclude that Pierson's voluntary statements which were made prior to Detective Sinclair's questioning should not have been excluded.

III.

The Court of Appeals also held that, once an accused has retained counsel, any statement obtained without counsel being present may not be admitted into evidence without an express waiver of counsel. Accordingly, the Court of Appeals held that the June 28 statement should have been suppressed.

We disagree and do not adopt the express waiver rule established by the Court of Appeals. An express waiver is not necessary to support a finding that an accused has relinquished the right to counsel guaranteed by Miranda. By creating an inflexible rule eliminating the possibility of an implicit waiver, the Court of Appeals has gone far beyond the requirements of Miranda. See North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). ¹ We believe the better rule to be that the validity of a waiver must be determined from the totality of the circumstances in a particular case.

The requirements for admitting statements made by an accused after invoking the right to counsel are set forth in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) and Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). ² The Edwards-Bradshaw test requires first that the accused initiate further communication with the police. An accused...