People v. Speer
| Decision Date | 18 October 2007 |
| Docket Number | No. 05CA0206.,05CA0206. |
| Citation | 216 P.3d 18 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Tremaine D. SPEER, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Todd E. Mair, Deputy State Public Defender, Elisabeth Hunt White, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by Judge ROTHENBERG.
Defendant, Tremaine D. Speer, appeals the judgment of conviction entered upon jury verdicts finding him guilty of attempted aggravated robbery and a crime of violence. We reverse and remand for a new trial.
Defendant was originally charged with attempt to commit first degree murder, first degree assault, theft by receiving, crime of violence, and possession of a weapon by a previous offender. The last count was severed from the other counts before trial and later dismissed. Before trial, he pled guilty to the theft by receiving count.
According to the prosecution's evidence, on April 6, 2004, defendant approached the victim at a convenience store, pointed a gun at him, and demanded money. When the victim resisted, defendant fired several shots, one of which hit the victim in the stomach.
Defendant testified at trial and admitted robbing and shooting the victim, but he claimed he acted under duress. He maintained that an acquaintance (the accomplice) had planned the robbery and had forced defendant to participate by threatening to harm him and defendant's brother if defendant did not participate. Defendant explained that the accomplice had arranged to buy the victim's car on the night of April 6 for $600 in cash; that the accomplice told defendant he would drive the victim and the victim's wife and child home, but would stop at a particular convenience store along the way; that the accomplice would go into the store; and that while he was in the store, defendant was to rob the victim of the $600 and return the money to the accomplice. Defendant also testified that the accomplice came to defendant's apartment around noon on the day of the offense, stayed with defendant all day, drove him to see the victim's car, and gave defendant a gun to carry out the plan. Defendant claimed that the gun had gone off accidentally when the victim resisted, and that defendant fired the other shots to scare the victim.
At the close of the evidence, defendant requested that the trial court instruct the jury on the affirmative defense of duress. The court denied his request, concluding that (1) the accomplice's action in allegedly giving defendant a gun eliminated the possibility of harm to defendant in the immediate future; (2) because the accomplice had not taken any physical action against defendant, but had only threatened him, defendant's fear was not well grounded; (3) because defendant had an ample opportunity to escape, to warn the victim, to walk away, and to unload the weapon, there was also no possibility of death or injury; and (4) therefore, the threshold required for the defense of duress had not been shown.
Defendant was convicted of attempted aggravated robbery and crime of violence and acquitted of the remaining charges.
Defendant first contends the trial court erred in denying his motion to suppress his statements to the police because his waiver under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was invalid, and because his statements were involuntary and were made after he invoked his right to stop the interrogation. We disagree.
A trial court's ruling on a motion to suppress presents a mixed question of fact and law. People v. Medina, 25 P.3d 1216, 1223 (Colo.2001); People v. Arroya, 988 P.2d 1124, 1138 (Colo.1999); People v. Blessett, 155 P.3d 388, 393 (Colo.App.2006). An appellate court must defer to the trial court's findings of fact if they are supported by competent evidence in the record, but will review its conclusions of law de novo. Arroya, 988 P.2d at 1129.
A defendant may waive the right to remain silent and the right to counsel, but such a waiver must be knowing, intelligent, and voluntary. Miranda. The validity of a waiver is evaluated under the totality of the circumstances. People v. Platt, 81 P.3d 1060, 1063 (Colo.2004); People v. Al-Yousif, 49 P.3d 1165, 1168 (Colo.2002); Blessett, 155 P.3d at 395.
For a waiver to be valid, the prosecution must prove by a preponderance of the evidence the waiver was knowingly, intelligently, and voluntarily made. A waiver is voluntary if it is the product of a free and deliberate choice rather than intimidation, coercion, or deception. People v. Pease, 934 P.2d 1374, 1377 (Colo.1997).
At the motions hearing in this case, the arresting officer testified that he advised defendant of his Miranda rights by reading from a card issued by the police department, that he went over the advisement form with defendant, and that defendant said he understood those rights and agreed to talk to the officers.
A second officer testified and denied that the officers made any threats or promises to induce defendant to sign the advisement form. That officer stated that he had witnessed defendant being asked whether the initials and the signature on the form were his, and that defendant said he understood his rights and was willing to talk.
The trial court found the prosecution had established by clear and convincing evidence that a proper Miranda warning was given, that defendant had voluntarily waived his rights before making a statement, and that he was readvised before he agreed to make a statement. The court applied the correct legal standard, and its findings are adequately supported by competent evidence. Accordingly, we will not disturb its ruling.
Defendant also contends his statements were involuntary because they were obtained by psychological coercion. He largely relies on two undisputed facts: (1) during his interrogation at the police station, the officers told him that a video from the convenience store showed he was there and that a witness had already identified him as the perpetrator, and both of these statements were false; and (2) during the interrogation, he began shaking and crying. Defendant maintains that the police officers violated his right to due process because they extracted his statements using lies, threats, and pressure. We disagree.
A defendant's confession must be voluntary to be admissible. Blessett, 155 P.3d at 393; see Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); People v. Fordyce, 200 Colo. 153, 156, 612 P.2d 1131, 1133 (1980). The burden is on the prosecution to prove by a preponderance of the evidence the confession was voluntary. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); People v. McIntyre, 789 P.2d 1108, 1110 (Colo.1990); see People v. May, 859 P.2d 879, 887 (Colo.1993); People v. Gray, 975 P.2d 1124, 1128 (Colo. App.1997).
The determination whether a confession is voluntary is based on the totality of the circumstances. People v. Mendoza-Rodriguez, 790 P.2d 810, 816 (Colo.1990); Blessett, 155 P.3d at 394. As a division of the court stated in People v. Zamora, 940 P.2d 939, 942 (Colo.App.1996):
Although deception by the police is not condoned by the courts, the limited use of ruses is supported by the overwhelming weight of authority. Most courts have recognized that ruses are a sometimes necessary element of police work and have held that deception standing alone does not invalidate consent; it is one factor to be considered in assessing the totality of the circumstances.
Here, the trial court found that defendant's statements were voluntary, and the transcript of defendant's interrogation supports the trial court's findings. It shows that the officers stopped questioning defendant while he cried, and continued when he regained his composure. The transcript also reflects that defendant started crying when the officer asked him whether the incident had been an accident and whether the accomplice had been involved. See People v. Stephenson, 56 P.3d 1112, 1120-21 (Colo.App. 2001) (). Furthermore, throughout the interrogation, defendant continued to deny any involvement in the incident and to deny knowing the accomplice.
Thus, the evidence does not support defendant's contention that his will was overborne by mentally or physically coercive conduct. People v. Blankenship, 30 P.3d 698, 703 (Colo.App.2000); see People v. Valdez, 969 P.2d 208, 211 (Colo.1998) .
Defendant's reliance on People v. Freeman, 668 P.2d 1371 (Colo.1983), is misplaced. There, the officers made repeated misrepresentations to the defendant regarding his potential punishment and the strength of the evidence against him, and they alternately berated, reassured, and complimented him. The supreme court concluded that, while none of the factors considered separately would render the confession involuntary, their combined effect, together with the coercive atmosphere, made the defendant's confession involuntary. Id. at 1380; see also People v. Klausner, 74 P.3d 421, 425 (Colo. App.2003).
It is true the officers here made false statements regarding the evidence, but the record supports the trial court's finding that the effect of the statements did not make defendant's statements involuntary. The officers urged him that telling the truth was in his best interest, and during the interrogation, none of the...
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