People v. Wallace, 02CA1012.

• Decision Date: 26 February 2004
• Docket Number: No. 02CA1012.,02CA1012.
• Citation: 97 P.3d 262
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph WALLACE, Defendant-Appellant.
• Court: Colorado Court of Appeals

97 P.3d 262

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph WALLACE, Defendant-Appellant.

No. 02CA1012.

Colorado Court of Appeals, Div. IV.

February 26, 2004.

Rehearing Denied April 15, 2004.

Certiorari Denied August 16, 2004.

Ken Salazar, Attorney General, Karen E. Lorenz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge GRAHAM.

Defendant, Joseph Wallace, appeals the judgment of conviction entered on a jury verdict finding him guilty of sexual assault on a child. We affirm.

The People's evidence at trial revealed the following. Defendant lived with the victim, K.H., the victim's sister, J.H., and their father. At the time of the alleged assault, the victim was fourteen years old, and J.H. was ten years old.

One evening defendant returned home after having drinks at a restaurant with the victim's father. The victim and J.H. were asleep in their shared bedroom when he returned. Defendant went into their bedroom to see whether their father had called. Defendant sat on the edge of the victim's bed, asked her whether she was okay, and touched her breast. Although the victim moved away from his hand, he slipped his hand into her pajama bottoms and touched her vagina. The victim turned away from defendant, and defendant lay down next to her and rubbed her arm and buttocks. The victim told defendant to leave her alone, and he eventually left.

The victim got out of bed, shut the bedroom door, sat against the door crying, and told J.H. what had happened. The victim then called the police. When the police arrived, the victim answered the door, was "visibly shaken," and looked as though she had been crying. The officers spoke with the victim until they heard a scream from upstairs. The officers ran upstairs to find J.H. crying. She reported that she had seen defendant standing naked in the hall. J.H. pointed the officers toward defendant's bedroom to indicate where he had gone.

The officers confronted defendant, who was still naked, in his bedroom. Defendant initially denied touching the victim, but then admitted to an officer that he grabbed her arm to wake her up and might have "rolled her over."

Defendant was sentenced to lifetime probation, including a two-year work release sentence in county jail. This appeal followed.

I.

Defendant contends the trial court erred in denying his motion to suppress his statements to police officers in the bedroom. He maintains that, because he was in custody, his statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We disagree.

When we consider a trial court's suppression ruling, we defer to its findings of fact, but review de novo its conclusions of law. People v. Smith, 13 P.3d 300 (Colo.2000).

Under Miranda, a defendant's statements made during a custodial police interrogation are inadmissible as evidence in a criminal case unless the prosecutor establishes that the defendant was advised of certain constitutional rights and waived those rights. Before a Miranda advisement is required, there must have been "such a restriction on a person's freedom as to render him `in custody.'" People v. Matheny, 46 P.3d 453, 463 (Colo.2002). Determining whether a person is in custody requires the trial court to establish the historical circumstances of the interrogation and then consider whether there was a formal arrest or restraint of movement tantamount to a formal arrest. People v. Minjarez, 81 P.3d 348 (Colo.2003).

In reviewing the trial court's determination, we will not disturb its findings of fact so long as they are supported by competent evidence in the record. In reviewing the trial court's legal conclusion, we need ask only whether a reasonable person in the defendant's position would believe that his freedom of action has been limited to the degree of a formal arrest. People v. Minjarez, supra.

The question of custody turns on an objective assessment of whether a reasonable person in the defendant's circumstances would have believed that he was free to leave the officer's presence and does not turn on the subjective beliefs of either the suspect or the law enforcement officer. People v. Thiret, 685 P.2d 193 (Colo.1984); see also United States v. Erving L., 147 F.3d 1240 (10th Cir.1998)(in evaluating whether a defendant was in custody, only the restraint imposed by the officers is a relevant consideration). Thus, if a defendant believed his freedom of action had been restrained to a degree associated with formal arrest, and his belief was reasonable from an objective viewpoint, then the defendant was in custody during the interrogation. See United States v. Axsom, 289 F.3d 496 (8th Cir.2002); People v. Matheny, supra.

In short, our review considers the totality of the circumstances. People v. O'Hearn, 931 P.2d 1168 (Colo.1997).

The following factors are applicable in evaluating the totality of circumstances: the 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; any limitation of movement or other form of restraint placed on the defendant during the interrogation; the officer's response to any questions asked by the defendant; any directions given to the defendant during the interrogation; and the defendant's verbal or nonverbal response to such directions. People v. O'Hearn, supra; People v. Thiret, supra.

When a suspect is interrogated in the comfort of his home, a court is less likely to find the circumstances custodial. United States v. Axsom, supra; United States v. Erving L., supra. Here, the trial court found that the questioning lasted only five to seven minutes; the officer's gun was holstered; the officer did not pull his gun nor was the gun visible to defendant; the officer's tone was conversational; there were no threats or promises; defendant was allowed to get dressed; the officer stood about four to five feet away from defendant; the lights in the bedroom were on, and the door was open; defendant was not handcuffed; the officer never touched defendant; only one officer spoke with him while in the bedroom; the officer did not block the door; defendant was not told that he could not leave; and defendant was in his own home. There is ample support in the record for these findings.

The court found that defendant was not free to go, but was "ordered out of the bathroom" and "ordered to sit in a particular place." However, the court concluded that there was "nothing, absolutely nothing about this interchange which suggests ... that an arrest has occurred." Moreover, we note that defendant did not retreat to his bedroom as the result of a chase. Instead, he was found there when his location was given by another occupant of the house.

We conclude that a reasonable person in defendant's position would not have believed himself at the time of questioning to have been so restrained that it was tantamount to a formal arrest. Indeed, the trial court expressly found defendant was not yet formally arrested. Thus, we conclude that defendant was not in custody for Miranda purposes. See People v. Milligan, 77 P.3d 771 (Colo.App.2003).

The trial court's conclusion, under the totality of the circumstances, that defendant was not subjected to custodial interrogation in violation of Miranda is supported by evidence in the record and will not be disturbed on appeal.

II.

Defendant next contends that the trial court erred by denying his motion to introduce polygraph evidence. Specifically, the trial court did not permit defendant's expert in polygraphy to testify that he had administered a modern polygraph test to defendant and that defendant denied the allegations with no deception indicated. We perceive no error.

Trial courts are vested with broad discretion to determine the admissibility of expert testimony, and the exercise of that discretion will not be overturned unless manifestly erroneous. Masters v. People, 58 P.3d 979 (Colo.2002). A trial court has a superior opportunity to determine the competence of the expert and to assess whether the expert's opinion will be helpful to the jury. People v. Martinez, 74 P.3d 316 (Colo.2003).

In determining whether scientific evidence is admissible, a trial court should consider whether (1) the scientific principles underlying the testimony are reasonably reliable; (2) the expert is qualified to opine on such matters; (3) the expert testimony would be helpful to the jury; and (4) the evidence satisfies CRE 403. People v. Martinez, supra; People v. Shreck, 22 P.3d 68 (Colo.2001).

"[U]nless otherwise provided by constitution, statute, or rule, all relevant evidence is admissible." People v. Rath, 44 P.3d 1033, 1038 (Colo.2002)(citing CRE 402). "Evidence is relevant, in the logical sense, as long as it is `evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'" People v. Rath, supra, 44 P.3d at 1038 (quoting CRE 401). However, relevant evidence must be excluded, if "its probative value is substantially outweighed by the danger of unfair prejudice." People v. Rath, supra, 44 P.3d at 1038 (quoting CRE 403).

Thus, while CRE 401 and 402 reflect liberal admission of evidence, CRE 403, in conjunction with CRE 702, tempers broad admissibility by giving courts discretion to exclude expert testimony unless it passes more stringent standards of reliability and relevance. People v. Martinez, supra.

In People v. Anderson, 637 P.2d 354 (Colo.1981), the supreme court adopted the Frye standard and determined that polygraph evidence was per se inadmissible in a criminal trial...