People v. Vasquez

• Decision Date: 28 December 2006
• Docket Number: No. 04CA0730.,04CA0730.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jimmy J. VASQUEZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

155 P.3d 588

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jimmy J. VASQUEZ, Defendant-Appellant.

No. 04CA0730.

Colorado Court of Appeals, Div. VI.

December 28, 2006.

Certiorari Denied April 9, 2007.

John W. Suthers, Attorney General, Laurie A. Booras, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Todd E. Mair, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CARPARELLI.

Defendant, Jimmy J. Vasquez, appeals the judgment of conviction entered upon a jury verdict finding him guilty of class 4 felony theft and class 5 felony forgery. We affirm.

I. Background

On August 6, 2002, the victim placed a check in her residential mailbox for mail pickup. The check was made payable to Nissan Motor Acceptance Corporation in the amount of $499.97. A few days later, the victim became suspicious about discrepancies in her mail service and contacted her credit union. An employee of the credit union informed her that the check had cleared in the amount of $2,500. After inspecting the check at the credit union, the victim signed an affidavit of forgery. The check the credit union had honored was faded and had been made out to "Jimmy Jospheph [sic] Vasquez".

A teller at the credit union testified that a man presented the check for payment on August 7, 2002. She wrote down his driver's license number (92-2397956) and placed his fingerprint on the back of the check. Upon viewing a photographic lineup, she identified a man other than defendant as the man who had presented the check. A latent print examiner testified that the fingerprint was not of suitable quality for identification. However, police officers investigating the forged check confirmed that defendant's driver's license number was 92-2397956.

II. Motion to Suppress

Defendant first contends that the trial court erred when it denied his motion to suppress the statements he made on September 5, 2002, because they were obtained in violation of his Fifth Amendment right to counsel. We disagree.

A. Facts

On September 4, 2002, defendant was arraigned on charges in an unrelated matter. On September 5, he was still being held in that matter when the police officers investigating the forged check spoke with him. Defendant waived his Miranda rights and confessed that he had passed the forged check and had been involved in a check-cashing scheme.

In the suppression hearing, defendant's counsel (1) asked the trial court to take judicial notice that, at the arraignment in the other case, defendant's counsel filed a motion in which he asserted defendant's "right to counsel, right to silence under both the Fifth Amendment and the Sixth Amendment" and (2) argued that there was "a very clear notification that [defendant] asserts his right to counsel and to have counsel present during any interrogation by police or prosecutors about his case or any other case." The prosecution did not object to defense counsel's proffer or request for judicial notice, and the court acknowledged that the referenced motion contained the words "any other case." However, the referenced motion is not part of the appellate record here, and the court did not describe what, if anything, it would judicially notice.

B. Law

When reviewing a suppression ruling, we give deference to a trial court's findings of fact, but we treat the application of legal standards to those facts as a question of law to be reviewed de novo. People v. Rivas, 13 P.3d 315, 320 (Colo.2000).

When police interrogate a suspect who is in custody, they must advise the suspect that he has the right to remain silent, that anything he says may be used against him, that he has the right to the presence of an attorney, and that if he cannot afford one, one will be appointed for him. Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1629-30, 16 L.Ed.2d 694 (1966). The purpose of this advisement is "to dispel the compulsion inherent in custodial surroundings." Miranda, supra, 384 U.S. at 458, 86 S.Ct. at 1619. Accordingly, Miranda is not implicated, and a suspect may not invoke his Miranda rights, unless he is both in custody and subject to official interrogation or interrogation is imminent. United States v. Bautista, 145 F.3d 1140 (10th Cir.1998); United States v. Grimes, 142 F.3d 1342, 1348 (11th Cir.1998); United States v. LaGrone, 43 F.3d 332, 339 (7th Cir.1994).

The Fifth Amendment privilege against self-incrimination and right to counsel are personal rights, and "nothing in Miranda or its progeny has indicated that the [Fifth Amendment] right to counsel may be invoked by anyone other than the suspect." People v. Rosales, 911 P.2d 644, 651 (Colo. App.1995); see also Moran v. Burbine 475 U.S. 412, 433 n. 4, 106 S.Ct. 1135, 1147, 89 L.Ed.2d 410 (1986) (during interrogation, police rebuffed attorney who had been hired by a Mirandized suspect's sister, where suspect had not requested assistance of counsel); United States v. Nobles, 422 U.S. 225, 233, 95 S.Ct. 2160, 2167, 45 L.Ed.2d 141 (1975)("The Fifth Amendment privilege against compulsory self-incrimination is an `intimate and personal one'....").

When a person who is in custody and subjected to interrogation personally and unambiguously informs the interrogator that he wants to be assisted by an attorney "in dealing with custodial interrogation by the police," the interrogation must stop, and it may not resume until counsel is made available to him or he initiates further communications. McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 2209, 115 L.Ed.2d 158 (1991) (discussing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981)); see United States v. Kelsey, 951 F.2d 1196, 1199 (10th Cir.1991); People v. Adkins, 113 P.3d 788, 792 (Colo. 2005). Later interrogators are charged with the knowledge of a suspect's invocation of his right to counsel because of the presumption that the suspect considers himself unable to deal with the pressures of custodial interrogation without legal assistance. See Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988) (discussing Edwards v. Arizona, supra). Accordingly, a proper invocation of the right to counsel may not be disregarded "simply because the police have approached the suspect, still in custody, still without counsel, about a separate investigation." Roberson, supra, 486 U.S. at 683, 108 S.Ct. at 2099. However, interrogators are not charged with knowledge of a suspect's attempt to invoke his Fifth Amendment right to counsel in prior communications with government officials not charged with the investigation of criminal activity. See Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980); United States v. LaGrone, supra; Alston v. Redman, 34 F.3d 1237 (3d Cir.1994).

The failure of the police to recognize a defendant's Fifth Amendment right to counsel "will result in suppression of any evidence obtained as a result of the improper interrogation." Perry v. Bd. of County Comm'rs, 949 P.2d 99, 102 (Colo.App.1997). If a statement obtained in violation of Miranda was admitted as part of the prosecution's case-in-chief, over the defendant's objection, reversal is required unless the error was harmless beyond a reasonable doubt. See People v. Trujillo, 49 P.3d 316, 326 (Colo. 2002).

C. Application

Here, defendant does not allege that he personally asserted his right to counsel at any time before police approached him regarding the forgery and advised him of his rights on September 5, 2002.

Nor does defendant dispute the evidence that he did not request counsel to assist him regarding that interrogation. Therefore, we conclude that the trial court properly determined that he was not denied his Fifth Amendment right to counsel.

We reject defendant's contention that his Fifth Amendment right to counsel was invoked when, in a motion before the trial court on September 4, 2002, his attorney purportedly stated that defendant was invoking his "right to counsel, right to silence under both the Fifth Amendment and the Sixth Amendment" with regard to the case in which defendant was being arraigned "and in any other case." We reject this contention for several reasons.

First, the Supreme Court has never held that a person can invoke his Miranda rights anticipatorily, in a context other than custodial interrogation. McNeil v. Wisconsin, supra, 501 U.S. at 182 n. 3, 111 S.Ct. at 2211. Here, defendant does not allege, nor does the evidence show, that he was questioned on September 4, 2002, the date on which his attorney filed the motion with the court. And, on this record, we conclude that there was sufficient evidence upon which the court could find that defendant was not under imminent threat of interrogation for the forgery when his attorney attempted to invoke his Miranda rights as to that matter. See Rhode Island v. Innis, supra, 446 U.S. at 300, 100 S.Ct. at 1689 ("`Interrogation,' as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself."); see also Alston, supra, 34 F.3d at 1245 (holding defendant was not under imminent threat of interrogation while sitting in jail cell speaking with public defender).

Second, we reject defendant's argument that this case is distinguishable from the McNeil line of cases because his attorney stated that he was asserting his Fifth Amendment right to counsel in "any other case." The facts of this case are similar to those in Grimes, in which the Eleventh Circuit held that a defendant was unable to anticipatorily invoke his Miranda rights by means of a claim of rights form filed in an unrelated case, which purported to assert his right not to make "any statements . . . regarding the facts or circumstances of any criminal offenses." Grimes, supra, 142 F.3d at 1348 n. 9 (emphasis added); see also People v. Villalobos, 193...