People v. Sellers

• Citation: 521 P.3d 1066,2022 COA 102
• Decision Date: 08 September 2022
• Docket Number: Court of Appeals No. 19CA2033
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Wayne Tc SELLERS IV, Defendant-Appellant.
• Court: Court of Appeals of Colorado

521 P.3d 1066

2022 COA 102

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Wayne Tc SELLERS IV, Defendant-Appellant.

Court of Appeals No. 19CA2033

Colorado Court of Appeals, Division I.

Announced September 8, 2022

Philip J. Weiser, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Carson D. Schneider, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee

Krista A. Schelhaas, Alternate Defense Counsel, Littleton, Colorado, for Defendant-Appellant

Opinion by JUDGE TOW

¶ 1 Defendant, Wayne TC Sellers IV, and several companions robbed two drug dealers at gunpoint. One of Sellers's companions shot and killed the second victim. A jury convicted Sellers of five charges related to the victim who was killed: felony murder, three counts of attempted aggravated robbery, and conspiracy to commit aggravated robbery. The jury also convicted Sellers of aggravated robbery related to the other victim.

¶ 2 Sellers appeals his conviction and also challenges his sentence. We affirm his conviction and his sentence for felony murder but vacate his consecutive sentence for aggravated robbery. In addressing the challenges to his sentence, we address three issues of first impression: (1) we reject his categorical attack on his sentence to life without the possibility of parole for felony murder; (2) we conclude that felony murder is a per se grave or serious offense for purposes of an abbreviated proportionality review; and (3) we hold that where the trial court does not specify whether a defendant's contemporaneously announced sentences are to be concurrent with or consecutive to one another, they are presumed to run concurrently.

I. Sellers's Attacks on His Conviction

¶ 3 Sellers raises two challenges to his conviction. He argues that the trial court erred by denying his motion to suppress statements he made to a detective. And he contends that the prosecutor engaged in misconduct warranting reversal. We address, and reject, each contention.

A. Motion to Suppress

¶ 4 According to the testimony at the motions hearing, El Paso County Detective Jason Darbyshire, who had located Sellers in Holyoke, Colorado, arrested Sellers with the assistance of local law enforcement officers. Before Sellers was taken to the Phillips County Sheriff's Office, Darbyshire told him,

You are under arrest currently for an active warrant for first degree murder. Okay. Uh, basically, what I want to tell you is I would like to give you an opportunity to get your version of events out there; speak with you; see what went down. Okay? Obviously, I've got a lot of information ‘cause that's why I'm here talking to you. But, it's up to you, if you don't want to talk to me then, then that's your right to. But if you do want to speak then we can go back to their police station we can have a chat and maybe iron a couple of things out.

Darbyshire asked Sellers what he wanted to do, and Sellers replied, "[U]h, which would be better?" Darbyshire responded,

Well, I mean, it's totally up to you man. Okay. You are under arrest either way. Okay. So there's a lot of. Before we can talk about the specifics of the case there's a lot of administrative parts and stuff that we've got to cover and a lot of legal stuff that you need to be aware of. Okay? So, do you think that is something you would like to do is make a statement in reference to this case? Or, is that not something you would like to do?

¶ 5 Sellers answered, "It is." Darbyshire then explained to him that he would be transported to the Phillips County Sheriff's Office to "hopefully get some things squared out."

¶ 6 At the sheriff's office, Darbyshire read Sellers his Miranda rights, see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).¹ After reading Sellers his rights, Darbyshire asked him, "[D]o you understand those rights as I've explained them to you?" Sellers said, "Yes." Darbyshire then confirmed that Sellers still wished to speak with him. Sellers, again, said yes.

¶ 7 The questioning, which was video-recorded, took place shortly after midnight and lasted ninety minutes. Sellers gave his version of the events, answered Darbyshire's questions, and even drew pictures to help illustrate certain scenes from the robberies.

¶ 8 Before trial, Sellers moved to suppress the initial audio-recorded police stop and the video-recorded interview at the sheriff's office. The trial court denied the motion as to both recordings. At trial, only the video-recorded interview was admitted.

1. Standard of Review

¶ 9 When reviewing a suppression order, we defer to the trial court's factual findings if they are supported by competent evidence in the record. Verigan v. People , 2018 CO 53, ¶ 18, 420 P.3d 247. However, "[w]hen the interrogation is audio or video-recorded, and there are no disputed facts outside the recording pertinent to the suppression issue, we are in the same position as the trial court in determining whether the statements should or should not be suppressed under the totality of the circumstances." People v. Ramadon , 2013 CO 68, ¶ 21, 314 P.3d 836. In that case, we review de novo the legal effect of those facts. People v. Liggett , 2014 CO 72, ¶ 19, 334 P.3d 231.

2. Analysis

¶ 10 We disagree with Sellers's contention that his waiver of his Miranda rights was not voluntary, intelligent, and knowing.

¶ 11 "A waiver of Miranda rights is involuntary ‘only if coercive governmental conduct—whether physical or psychological—played a significant role in inducing the defendant to make the confession or statement.’ " People v. Jiminez , 863 P.2d 981, 984 (Colo. 1993) (quoting People v. May , 859 P.2d 879, 883 (Colo. 1993) ). We look to the totality of the circumstances to determine whether an interrogation was coercive and consider the following nonexclusive factors:

• whether the defendant was in custody;

• whether the defendant was free to leave;

• whether the defendant was aware of the situation;

• whether the police read Miranda rights to the defendant;

• whether the defendant understood and waived Miranda rights; • whether the defendant had an opportunity to confer with counsel or anyone else prior to or during the interrogation;

• whether the statement was made during the interrogation or volunteered later;

• whether the police threatened the defendant or promised anything expressly or impliedly;

• the method of the interrogation;

• the defendant's mental and physical condition just prior to the interrogation;

• the length of the interrogation;

• the location of the interrogation; and

• the physical conditions of the location where the interrogation occurred.

People v. Zadran , 2013 CO 69M, ¶ 11, 314 P.3d 830.

¶ 12 We disagree with Sellers that his waiver was invalid because he was encouraged to speak before being read his Miranda rights. Rather, Darbyshire told Sellers twice that he was giving him the option to tell his version of the events. Darbyshire also said, "[I]f you don't want to talk to me then, then that's your right to" and "it's totally up to you man." Moreover, Darbyshire needed to know where to take Sellers: if Sellers wished to talk, he would be taken to the sheriff's office for questioning; if not, he would be taken to the jail for booking. None of these statements encouraged Sellers to speak; they merely gave Sellers the option to do so.

¶ 13 We further disagree with Sellers that the following statements made by Darbyshire were improper promises that induced him to speak:

• "I kinda just want to give you a chance to explain what happened and how all that went down just so I have a clear picture of how everything transpired."

• "Here's the deal, I know you don't know me, but I mean this isn't an act. I'm a [sic] shoot straight with you and if stuff is not good news, I'll tell you it's not good news."

• "I'm going to make sure that you get a fair shake as well."

These statements are not promises and were not coercive. See id. at ¶ 19 (concluding that the statement made by an officer that "it would be in [the defendant's] best interest" to speak was not coercive).

¶ 14 And we disagree with Sellers that his experience in the army, where soldiers are expected to answer questions in a command-heavy environment, influenced him to waive his Miranda rights.² First, we note that there is no evidence that Darbyshire was aware of Sellers's military background or attempted in any way to take advantage of it. See People v. Cisneros , 2014 COA 49, ¶ 84, 356 P.3d 877 ("[A] defendant's weakened mental condition, in the absence of deliberate exploitation and intimidation by law enforcement officers, is insufficient to render the defendant's statements involuntary."). In any event, the trial court noted that Sellers was only in the military for two years. And he was discharged for underage drinking after being pulled over for driving under the influence. Based on these facts, the trial court concluded, with record support, that Sellers's military background and experience did not impact the voluntariness of his waiver.

¶ 15 Lastly, we disagree with Sellers's emphasis that his age—twenty years old—contributed to him believing he had no choice but to speak with Darbyshire. See People v. Kaiser , 32 P.3d 480, 484 (Colo. 2001) (holding that age is another factor for courts to consider in analyzing whether a Miranda waiver is valid); Fare v. Michael C. , 442 U.S. 707, 726–28, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) (noting that even juveniles can validly waive their Miranda rights).

¶ 16 Under the totality of the circumstances, Darbyshire's behavior did not overbear Sellers's will and, therefore, we conclude that Sellers's waiver and his subsequent statements were voluntary. See Zadran , ¶ 10.

¶ 17 Next, we disagree with Sellers that his waiver was not knowing and intelligent because he was intoxicated and not properly advised of his Miranda rights.

¶ 18 A waiver must be made with full awareness regarding the nature of the rights being abandoned and the consequences of abandoning them....