People v. Viduya

• Decision Date: 24 June 1985
• Docket Number: No. 83SA48,83SA48
• Citation: 703 P.2d 1281
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roger Wayne VIDUYA, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1281

703 P.2d 1281

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roger Wayne VIDUYA, Defendant-Appellant.

No. 83SA48.

Supreme Court of Colorado En Banc.

June 24, 1985.

Rehearing Denied Aug. 19, 1985.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Solicitor Gen., John Milton Hutchins, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Margaret L. O'Leary, Lyndy Ohneck, Jody Sorenson Theis, Judy Fried, Deputy State Public Defenders, Denver, for defendant-appellant.

LOHR, Justice.

Roger Wayne Viduya appeals his conviction for vehicular homicide. See § 18-3-106, 8 C.R.S. (1978). ¹ Because the trial judge applied the wrong legal standard when concluding that statements made by Viduya to the police were constitutionally obtained and admissible at trial, we reverse and remand with directions to hold a new hearing on that issue. We affirm all the other challenged rulings of the trial court.

I.

At approximately 10:00 p.m. on February 6, 1981, a car driven by Viduya struck and killed pedestrian Rocco Borquez as Viduya was driving east on 112th Street in Adams County. Viduya was charged by information with causing the death of Borquez by driving in a reckless manner and by driving while under the influence of intoxicating liquor, the two means by which vehicular homicide can be committed pursuant to section 18-3-106(1), 8 C.R.S. (1978).

On September 8, 1981, after trial to a jury in Adams County District Court, Viduya was found guilty of vehicular homicide. The jury was provided with a verdict form that not only required the jurors to find Viduya either guilty or not guilty of the offense, but also required them, if they found Viduya guilty, to specify whether he committed the offense by operating a motor vehicle in a reckless manner, or by operating a motor vehicle while under the influence of intoxicating liquor, or both. The jury found that Viduya committed the offense of vehicular homicide while operating a motor vehicle in a reckless manner. Viduya was sentenced to two years with the department of corrections. He appeals, raising seven assignments of error. ²

II.

A.

Viduya contends that the district court erred in denying his motion to suppress statements made by him to police officers after the accident. We conclude that further proceedings in the trial court are necessary to resolve this issue.

At the hearing on Viduya's motion to suppress, Officer Holden, the first police officer on the scene and the officer who arrested the defendant, testified as follows: Holden arrived at the scene of the accident while on routine patrol. As he approached that location, he saw a large cloud of steam rising from a car lying in the ditch off the road. As he got closer, he could see a person lying in the middle of the road and approximately seven or eight other people in the vicinity. He radioed for emergency aid and got out of his car to check the prostrate victim, Rocco Borquez. Borquez had no pulse and was not breathing.

Two men at the scene then asked Holden if he needed to know who had been driving the car that was in the ditch. Holden said that he did, whereupon the two men pointed out a man approximately seventy-five yards away, walking away from the location of the accident. Holden "hurriedly approached" the man walking away--Viduya, although not yet identified by name--and asked him if he had been driving the vehicle that was in the ditch. ³ Viduya said, "no." Holden then requested that Viduya return with him to the scene of the accident. In Holden's words, "I advised him that we were investigating a serious accident and since he was in the area he would have to come back."

Holden returned with Viduya to the accident scene and had him stand near a fence alongside 112th Street while Holden went back to talk to the two men. They confirmed that Viduya was the person they had seen getting out of the vehicle involved in the accident. Sometime during this period, although after the first encounter with Viduya, Holden noted that Viduya appeared to be intoxicated. After confirming the identification, Holden returned to Viduya and placed him under arrest for vehicular assault. The officer advised Viduya of his Miranda ⁴ rights at this time. Viduya agreed to answer questions. He said he had been driving the car but that he did not remember being in an accident or striking any objects or pedestrians. Viduya also stated that he had consumed approximately six beers in the last five hours, and gave varying answers when asked at different times how fast he had been traveling. Another officer testified that the defendant made further statements at the police station after again being advised of his Miranda rights.

Prior to trial, Viduya moved to suppress all statements made by him relating to the alleged vehicular homicide. At the hearing on that motion, Viduya asserted that his initial response to Holden's question concerning whether he was driving the vehicle involved in the accident was a statement given while in custody but without a proper Miranda advisement and that all subsequent statements were the fruits of the initial improper questioning. The district court denied the motion. Viduya assigns this ruling as error.

B.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless the prosecution demonstrates that the defendant was adequately advised of his privilege against self-incrimination and his right to counsel, and thereafter voluntarily, knowingly and intelligently waived those rights. The reason for the automatic warning requirement is that without such a safeguard, the compelling pressures inherent in police custody "work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely," in violation of the Fifth Amendment to the United States Constitution. ⁵ Id. at 467, 86 S.Ct. at 1624.

By "custodial interrogation," the Court meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 444, 86 S.Ct. at 1612. We have held that this question of custody turns on an objective assessment of whether a reasonable person in the suspect's position would believe himself to be deprived of his freedom of action in any significant way. People v. Black, 698 P.2d 766, 768 (Colo.1985); People v. Johnson, 671 P.2d 958, 961 (Colo.1983); People v. Algien, 180 Colo. 1, 7, 501 P.2d 468, 471 (1972). Several factors must be considered in determining whether a person is in custody, including:

[T]he time, place and purpose of the encounter; the persons present during the interrogation; the words spoken by the officer to the defendant; the officer's tone of voice and general demeanor; the length and mood of the interrogation; whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; the officer's response to any questions asked by the defendant; whether directions were given to the defendant during the interrogation; and the defendant's verbal or nonverbal response to such directions.

People v. Black, 698 P.2d at 768; People v. Thiret, 685 P.2d 193, 203 (Colo.1984).

Denying the defendant's motion to suppress his original statement, the district court ruled:

With respect to the statements made by the Defendant at the time the initial inquiry was made of the Defendant, to-wit, "Were you driving?" and the Defendant answered in the negative. The officer at that time was investigating an accident, which he had no way of knowing how it occurred. A body is lying in the middle of the street. Other people have identified the Defendant as the driver of that vehicle. For all the officer knew at that point, the victim could have been ejected from the vehicle in a collision with another object. So, that particular question I do not find to be inappropriate in view of the fact that there was no suspicion at that time of any offense by the Defendant, and the officer asked the question in the course of a valid investigation.[ ⁶

The court thus premised its denial of Viduya's motion to suppress his original response on the facts that Officer Holden had not yet determined that an offense had been committed and that Holden's investigation had not focused on the defendant as a criminal suspect at the time the officer made his initial inquiry. The district court applied the wrong legal standard by failing to determine whether Viduya was in custody for the purposes of Miranda at the time of the initial questioning. People v. Black, 698 P.2d at 768. Compare Miranda v. Arizona with Escobedo v. Illinois, 378 U.S. 478, 490-91, 84 S.Ct. 1758, 1764-65, 12 L.Ed.2d 977 (1964). See also People v. Parada, 188 Colo. 230, 233, 533 P.2d 1121, 1122 (1975) ("Miranda substituted the 'custodial interrogation' requirement for the 'focus of the investigation' test which had earlier been enunciated in Escobedo....").

The district court's failure to apply the proper legal standard requires us to reverse the judgment and remand for a new hearing on this issue. ⁷ People v. Black; People v. Johnson. On remand, the district court has discretion to receive additional evidence and shall make findings of fact on the issue of custody, using the legal standards set forth in this opinion and considering the applicability of the United States Supreme Court's holding in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), to the facts as found by the court. ⁸ If the court finds that Viduya's answer to Officer Holden's original inquiry was admissible despite the absence of Miranda warnings, the court should reinstate the judgment of conviction. ...