People v. Rosales

• Decision Date: 23 March 1995
• Docket Number: No. 93CA0938,93CA0938
• Citation: 911 P.2d 644
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John L. ROSALES, a/k/a Juan L. Rosales, a/k/a Kango, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 644

911 P.2d 644

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John L. ROSALES, a/k/a Juan L. Rosales, a/k/a Kango Defendant-Appellant.

No. 93CA0938.

Colorado Court of Appeals,

Div. III.

March 23, 1995.

Rehearing Denied May 18, 1995.

Certiorari Denied Feb. 26, 1996.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Roger G. Billotte, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David Vela, State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge TAUBMAN.

Defendant, John L. Rosales, appeals the judgment of conviction entered upon a jury verdict finding him guilty of two counts of criminal attempt to commit second degree murder, two counts of first degree assault, and two counts of violent crime. We remand for further findings.

The following facts are essentially undisputed. Late in the evening on August 29, 1992, defendant and several of his friends were standing outside a video arcade when they became embroiled in an altercation with two men. The two men were stabbed multiple times, and defendant also incurred stab wounds during the altercation.

Subsequently, some of defendant's companions took him to the hospital for treatment of his injuries. The other two men went to the same hospital for treatment.

At approximately 2:00 a.m., the police arrived at the hospital and began conducting an investigation of the altercation. The police interviewed defendant while he was sitting in the waiting room of the hospital, as well as his companions who had been waiting for him outside. The police were unable to interview either of the other two men at that time because they were undergoing medical treatment.

At 7:30 a.m. that morning, the police arrested defendant and questioned him over a two and one-half hour period at the police department. The record does not disclose whether defendant had slept at any time between 2:00 a.m. and 7:30 a.m. that morning.

Before questioning him, the detective gave defendant a warning pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and defendant acknowledged that he understood his rights and that he was waiving those rights. During the interview, he provided several different versions of the incident, most of which indicated that he was the victim of the attack.

After defendant gave the first version of the altercation, the detective told defendant that he knew that he was not being truthful based on his interviews with other witnesses.

When the defendant began giving another version that still involved him being attacked, the detective stopped him and again told him that he was lying based upon what the other witnesses had told him and that he wanted the truth from defendant. The detective then falsely told the defendant that the altercation had been videotaped by a security camera and that the videotape was being prepared so that the detective could view it. At the suppression hearing, the interviewing detective admitted that no videotape of the altercation existed.

The defendant then provided the detective with three other versions of the altercation, and after each version the detective told him that he was still not being truthful. The detective warned defendant to tell him the truth before he learned it himself from the videotape.

At that point, the detective exited the interview room to confer with other detectives who had been monitoring the conversation. The detectives decided that, if it appeared to them that defendant continued to be untruthful, they would confront him with statements that he had made in the car on the way to the hospital. Those statements indicated that defendant was the person who stabbed the victims. The detectives also decided that if defendant continued to be untruthful, the interviewing detective would cough as a signal for the officers to knock on the door and give him a blank videotape.

The interview resumed, and the interviewing detective confronted defendant with the statements he had allegedly made about thinking that he had killed one of the men by stabbing him six times. Defendant responded that he had merely been bragging about something that he had not done. Defendant also stated that it was not until he arrived at the hospital that he learned that the second man had been stabbed.

Still believing that defendant was not being truthful, the interviewing detective coughed to signal the other detectives. He then left the interview room and obtained from the other detectives a blank videotape that had been conspicuously marked, both on the videotape itself and the cover, with the date and location of the altercation. The detective then placed the tape in front of the defendant and told him he was tired of being lied to. He also falsely told defendant that he had just watched the videotape, which showed the defendant stab the two other men. Then, the detective asked him why he had lied to him and wasted his time. At that point, defendant confessed that he had stabbed both victims because they had embarrassed him in front of his friends during the fight.

Contending that the statements he had made to the police, both at the hospital and after his arrest, were involuntary, defendant filed separate motions to have them suppressed. He also argued that the police had violated his right to due process since they had continued to question him after he had invoked his right to counsel. The trial court conducted an evidentiary hearing on his motions after which it concluded that all of his statements were voluntary and that he had not invoked his right to counsel. Defendant was subsequently convicted and this appeal followed.

I. Voluntariness of Defendant's Confession

Defendant contends that the trial court erred in refusing to suppress the statement he made during the interview at the police department because the officers' coercive and deceptive conduct during the questioning rendered the statements involuntary. Because the trial court made only limited factual findings, and no factual findings on disputed issues, in determining whether defendant's confession was voluntary, we conclude that the matter must be remanded for entry of additional findings, including resolution on the record of contested factual issues.

A suspect's confession is admissible in evidence only if it is voluntary. People v. Raffaelli, 647 P.2d 230 (Colo.1982). Voluntariness is derived from the totality of the circumstances, which must demonstrate that the accused's statement is the product of his or her free and unconstrained choice. People v. Mounts, 784 P.2d 792 (Colo.1990). It must not be the result of official coercion, intimidation, or deception. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); People v. May, 859 P.2d 879 (Colo.1993).

Official coercion includes any sort of threats, or any direct or implied promises or improper influences, however slight. People v. Mendoza-Rodriguez, 790 P.2d 810 (Colo.1990); People v. Lytle, 704 P.2d 331 (Colo.App.1985). A statement by a police officer instructing a suspect not to lie to him or her may constitute a threat. See People v. Thomas, 839 P.2d 1174 (Colo.1992). Coercive police conduct may include even subtle forms of psychological coercion. People v. Gennings, 808 P.2d 839 (Colo.1991).

The determination of whether governmental conduct is actually coercive and induces a challenged statement can only be made by assessing the totality of the circumstances under which the statement is made, including factors such as:

Whether the defendant was in custody or free to leave and was aware of his situation; whether Miranda warnings were given prior to any interrogation and whether the defendant understood and waived his Miranda rights; whether the defendant had the opportunity to confer with counsel; whether the challenged statement was made during the course of interrogation or instead was volunteered; whether any overt or implied threat or promise was directed to the defendant; the method and style employed by the interrogator in questioning the defendant and the length and place of the interrogation; and the defendant's mental and physical condition immediately prior to and during the interrogation, as well as his educational background, employment status, and prior experience with the law enforcement and criminal justice system.

People v. Gennings, supra, at 844; People v. Dracon, 884 P.2d 712 (Colo.1994).

Here, although the trial court made extensive findings in its ruling on the motion to suppress regarding the custodial nature of the statements made by defendant at the hospital and, later, whether he had invoked his right to counsel, the trial court concluded that defendant's confession at the police department was voluntary with only limited factual findings and no factual findings on issues that were disputed.

In ruling on a motion to suppress a confession, a court must engage in both fact finding and law application. While a court's findings of historical fact are entitled to deference and will not be overturned if adequately supported by competent evidence in the record, it is critical that the trial court, in making its findings, expressly resolve on the record the contested factual issues. People v. Gennings, supra.

Once the trial court has made its factual findings, it must then conclude as a matter of law whether defendant's confession was voluntary. See People v. Dracon, supra.

As we read People v. Gennings, supra, at least where there are disputed issues of fact, the trial court, in determining whether a defendant's confession is voluntary, must make specific findings concerning the factors it has considered under the "totality of the circumstances" test. As the Gennings court noted, such factual findings are necessary to allow for appellate review of an ultimate legal conclusion of...