People v. Wickham, No. 99CA2087.

• Decision Date: 23 November 2001
• Docket Number: No. 99CA2087.
• Citation: 53 P.3d 691
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ricky WICKHAM, Defendant-Appellant.
• Court: Colorado Court of Appeals

53 P.3d 691

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ricky WICKHAM, Defendant-Appellant.

No. 99CA2087.

Colorado Court of Appeals, Div. II.

November 23, 2001.

Certiorari Denied September 16, 2002.¹

Ken Salazar, Attorney General, Evan W. Jones, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, Ricky Wickham, appeals the judgment of conviction entered on a jury verdict finding him guilty of felony murder, robbery, and aggravated motor vehicle theft. We vacate the robbery conviction and otherwise affirm.

In October 1998, defendant's companion stabbed the victim repeatedly until he died, while defendant assisted. The two assailants then stole the victim's ATM card, his wallet, a cell phone, a pager, two VCRs, and stereo equipment. They loaded these belongings into the victim's car and drove away in it.

After the police found the victim's body, defendant's parole officer identified defendant in ATM surveillance videos that showed defendant withdrawing funds from the victim's bank account. The police later obtained a warrant to search defendant's house for items stolen from the victim.

Sixteen days after the murder, defendant was arrested on an existing warrant for violating his parole, and the police searched his house pursuant to the search warrant. They uncovered several pieces of incriminating evidence.

I.

Defendant first contends that his videotaped confession was involuntary and that the trial court violated his right to due process by admitting it into evidence. We disagree.

The trial court initially viewed the videotaped confession, found it was voluntary, and admitted it. Because neither party contests the facts that controlled the trial court's determination whether to admit the videotaped confession, we review its admission de novo. See People v. Valdez, 969 P.2d 208 (Colo.1998)

(when no dispute remains regarding the controlling facts, question on appeal is one of law and is reviewed de novo).

Involuntary confessions must be excluded under the Due Process Clause. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); People v. Raffaelli, 647 P.2d 230 (Colo.1982). For a confession to be involuntary, police coercion must have played a significant role in obtaining it. Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 520, 93 L.Ed.2d 473, 482 (1986)("all [confession cases] have contained a substantial element of coercive police conduct"); People v. Miranda-Olivas, 41 P.3d 658 (Colo. 2001); People v. Gennings, 808 P.2d 839, 843 (Colo.1991) ("[a] confession or inculpatory statement is involuntary if coercive governmental conduct played a significant role in inducing the statement").

In determining whether the confession here was involuntary, the inquiry is whether defendant's will was overborne by physically or mentally coercive government conduct. People v. Valdez, supra.

However, even where a causal connection exists between police misconduct and the defendant's confession, a violation of due process does not automatically ensue. Colorado v. Connelly, supra (n.2). Rather, the court must look at the totality of the circumstances. See Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

We initially observe that defendant relies upon earlier opinions, including one by the United States Supreme Court, that held confessions were per se involuntary when elicited using threats or promises. See Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897)

; People v. Pineda, 182 Colo. 385, 513 P.2d 452 (1973). In later cases, however, the per se approach has been criticized, and the current weight of authority now holds that the totality of circumstances should be applied in analyzing the voluntariness of confessions. See Arizona v. Fulminante, supra; see also Taylor v. Singletary, 148 F.3d 1276 (11th Cir.1998)(stating that the language in Bram advocating a per se rule on voluntariness was dicta and that other language there suggested a totality of circumstances approach); People v. McCormick, 881 P.2d 423 (Colo.App.1994)(Bram language was dicta and the correct standard is totality of the circumstances, as set forth in Arizona v. Fulminante, supra).

Accordingly, we look to the totality of the circumstances in analyzing the voluntariness of defendant's videotaped confession. See Arizona v. Fulminante, supra; People v. Miranda-Olivas, supra; People v. Gray, 975 P.2d 1124 (Colo.App.1997)

.

Threats and promises used by the interrogator factor into the analysis of voluntariness but are not conclusive. For such threats and promises to render a confession involuntary, they must have caused the defendant to confess, for example, where police have promised leniency in exchange for a confession or have threatened harmful consequences unless the defendant confesses. See People v. Valdez, supra

(requiring a causal connection between abrasive demeanor of interrogator and the defendant's confession for it to be involuntary); see also United States v. Fraction, 795 F.2d 12, 15 (3d Cir.1986)(defining a promise in the context of a confession as "an offer to perform or withhold some future action within the control of the promisor, in circumstances where the resulting action or inaction will have an impact upon the promisee").

Other appropriate factors to be considered include:

whether the defendant was in custody or was free to leave and was aware of his situation; whether Miranda warnings were given prior to any interrogation and whether the defendant understood and waived his Miranda rights; whether the defendant had the opportunity to confer with counsel or anyone else prior to the interrogation; whether the challenged statement was made during the course of an interrogation or instead was volunteered; whether any overt or implied threat or promise was directed to the defendant; the method and style employed by the interrogator in questioning the defendant and the length and place of the interrogation; and the defendant's mental and physical condition immediately prior to and during the interrogation, as well as his educational background, employment status, and prior experience with law enforcement and the criminal justice system.

People v. Gennings, supra, 808 P.2d at 844.

In support of defendant's assertion here that his confession was involuntary, he relies on several cases. We conclude each is distinguishable.

People v. Pineda, supra,

applied the per se rule regarding threats and promises in determining whether the defendant's confession was involuntary. Because the per se rule is no longer applied by the United States Supreme Court or in more recent Colorado cases, Pineda does not require us to accept defendant's argument.

The same is true of People v. Gennings, supra.

There, the supreme court reversed the trial court's finding that the defendant's statement was involuntary, after concluding the finding was unsupported by the record:

[W]e cannot say with any assurance that the polygraph examiner's conduct played so significant a role in overbearing the defendant's will as to have caused the defendant's statement to be constitutionally involuntary.

People v. Gennings, supra, 808 P.2d at 846-47.

Defendant's reliance on People v. Quintana, 198 Colo. 461, 601 P.2d 350 (1979), is also misplaced. While the supreme court there upheld the trial court's finding that the defendant's confession was involuntary, the police had promised him leniency and assistance in exchange for his confession. Such promises were not made to defendant here.

Nor does People v. Freeman, 668 P.2d 1371 (Colo.1983), require a different result. After examining the record, the supreme court there concluded the defendant's statement was involuntary based on several coercive techniques that had been used by multiple interrogating officers. Those techniques included: (1) referring to charges that the defendant might face if not cleared; (2) minimizing the seriousness and extent of the defendant's culpability if he confessed; (3) telling the defendant that he could not talk to his girlfriend unless he confessed; (4) employing a "Mutt and Jeff" tactic in which one officer berated the defendant while another reassured and complimented him; and (5) making false representations regarding their knowledge of the evidence and asserting the defendant was obviously guilty. People v. Freeman, supra, 668 P.2d at 1379-80. Again, such conduct did not occur in this case.

People v. Valdez, supra,

offers more guidance. There, multiple officers had interrogated the defendant. The court considered the totality of the circumstances and was persuaded by several factors to conclude the defendant's confession was voluntary. The factors recited were: (1) a lack of a causal connection between the angry, condemning demeanor of one interrogator and the confession; (2) the absence of a nexus between the defendant's alleged confusion with respect to the questioning and the confession; and (3) the fact that the interview only lasted an hour and twenty minutes, even though the defendant claimed to have been tired and hungry. The supreme court also found significant the fact that the defendant denied the charges throughout the interview, that he understood the meaning and extent of his rights and waived them, and that he was given water and never asked for food. People v. Valdez, supra, 969 P.2d at 212-13.

Here, following defendant's arrest, he was given Miranda warnings before any questioning, and he waived his rights. Evidence also was presented that he was mentally and physically healthy before and during the questioning, that he was not intoxicated, that he did not suffer from mental illness, that he never mentioned being tired to the detective, that he had successfully earned a GED diploma, and that he had...