People v. Whitman

• Citation: 182 Colo. 6,510 P.2d 432
• Decision Date: 29 May 1973
• Docket Number: No. 25233,25233
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joel K. WHITMAN, Defendant-Appellant.
• Court: Supreme Court of Colorado

Page 432

510 P.2d 432

182 Colo. 6

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joel K. WHITMAN, Defendant-Appellant.

No. 25233.

Supreme Court of Colorado, En Banc.

May 29, 1973.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Patricia W. Robb, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Kenneth J. Russell, Lee Belstock, Deputy State Public Defenders, Lionel Dunievitz, Denver, for defendant-appellant.

LEE, Justice.

In separate trials appellant, Joel K. Whitman, was convicted of first-degree murder and of robbery. He was sentenced to serve concurrent terms in the state penitentiary. Motions for new trials were denied and this Court affirmed both convictions on writ of error. Whitman v. People, 161 Colo. 110, 420 P.2d 416; Whitman v. People, 161 Colo. 117, 420 P.2d 244.

Thereafter, Whitman filed a motion under Colo.R.Crim.P. 35(b) with the Denver district court, alleging certain violations of his constitutional rights during the course of both of his trials. The motion was denied without a hearing being granted. Whitman appealed from the trial court's decision and, in Whitman v. People, 170 Colo. 189, 460 P.2d 767, we reversed, holding that an evidentiary hearing should have been given on the question of the voluntariness of certain statements made by Whitman, used against him at his trial. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.

The trial court pursuant to this decision conducted an evidentiary hearing on Whitman's 35(b) motion. The court found and concluded that the incriminating statements were voluntarily given by Whitman and were properly admitted into evidence against him at his trials. Whitman brings this third appeal, contending that the court erred in its determination of voluntariness and erred in failing to hold that he was denied his constitutional right to counsel at the time the incriminating statements were made. The court's findings of fact and conclusions of law are adequately supported by the record and we therefore affirm the judgment.

I.

We do not find it necessary to detail the facts of the robbery and the resulting homicide. They are set forth fully in Whitman v. People, 161 Colo. 110, 420 P.2d 416. For the purposes of this appeal, it is sufficient to note that the incriminating statements were given by Whitman while he was in Denver General Hospital where he was confined for treatment of injuries suffered as a result of the violent automobile collision which occurred as he and his confederate fled the scene of the robbery. The trial court at the conclusion of the 35(b) hearing entered extensive findings of fact from which it concluded as follows:

'The Court concludes that the statements made by the defendant to Detective Lopez and Detective Brannan were made freely and voluntarily. The defendant was hospitalized, was being treated for his injuries, and was receiving medications. He was not extensively interrogated, nor did the police officers disregard his need for care and treatment. The defendant was not threatened, coerced, or mistreated before or during his conversations with these officers, and had the presence of mind to give false accounts of what had happened in an effort to extricate himself from his problems. Mr. Whitman was also able to converse with a Deputy Sheriff on duty at the hospital at the time.

'The written and signed statement taken by Detective Berry was also freely and voluntarily given. Whitman signed this statement without being induced or coerced, and acknowledged his signature on the statement. He was advised it could be used in court.

'Mr. Whitman's condition, his confinement at the hospital, and his care and treatment there did not render the statements he made involuntary and therefore inadmissible.'

The robbery and homicide in this case, and the police investigation, the giving of the incriminating statements, and the filing of charges all occurred before the decision in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. The trials, however, were held after Escobedo, but before Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.

As we analyze the record of the 35(b) hearing, it is apparent from the trial court's extensive detailed findings that in making its determination of voluntariness the court adhered to the applicable Pre-Miranda test of the 'totality of circumstances.' Young v. People, 175 Colo. 461, 488 P.2d 567. As noted before, the findings and conclusions of the court are amply supported by competent evidence and will not therefore be disturbed by this Court on review.

II.

Whitman additionally contends he is entitled to reversal because he was unconstitutionally '* * * refused counsel although he had requested to see a lawyer and this was true throughout the period of questioning.' This contention is premised on Escobedo v. Illinois, Supra. In Lucero v. People, 171 Colo. 167, 465 P.2d 504, we said:

'In Andrews v. People, 161 Colo. 516, 423 P.2d 322, we held that 'Escobedo is limited, insofar as this state is concerned, to the fact situation appearing in that case.' Also, see Bean v. People, 164 Colo. 593, 439 P.2d 678.

'A review of the circumstances leading to the oral and written confessions shows many similarities to Escobedo. One element--and an important one--in Escobedo which is not present here is that defendant had not requested and been denied an opportunity to consult with his lawyer.

'The trial court here, as in Arthur v. People, 165 Colo. 63, 437 P.2d 41, conducted a hearing outside the presence of the jury to determine whether the confessions of the defendant, both oral and written, were voluntarily made. The...