Reed v. People

• Decision Date: 08 March 1971
• Docket Number: No. 23765,23765
• Citation: 174 Colo. 43,482 P.2d 110
• Parties: James LeRoy REED and Zimmeri C. McNeal, Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 110

482 P.2d 110

174 Colo. 43

James LeRoy REED and Zimmeri C. McNeal, Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 23765.

Supreme Court of Colorado, In Department.

March 8, 1971.

Rollie R. Rogers, State Public Defender, Edward L. Kirkwood, Deputy State Public Defender, Edward H. Sherman, Public Defender, City and County of Denver, Denver, for plaintiffs in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Paul D. Rubner, David A. Sorenson, Asst. Attys. Gen., Denver, for defendant in error.

ERICKSON, Justice.

This case is before us for review on writ of error. The defendants, James LeRoy Reed and Zimmeri C. McNeal, were charged in a direct information with the crimes of robbery and conspiracy to commit robbery. The defendants allegedly participated in a vicious mugging and robbery. Even though the defendant Reed confessed to the mugging and robbery, the defendants elected to stand trial together, after the District Attorney offered the defendants a severance. At the trial, the defense urged that the prosecution failed to meet its burden of proof because of the victim's questionable ability to identify his assailants. The jury heard the evidence and returned a verdict of guilty against both defendants as to the robbery charge and acquitted both defendants of the conspiracy charge. From the conviction and sentence, the defendants prosecuted this writ of error, claiming that the trial court committed error by admitting into evidence Reed's confession which implicated his codefendant, McNeal. The defendants contend that the confession was inadmissible because (1) Reed's Fifth and Sixth Amendment rights, as defined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), were violated; (2) a sufficient foundation was not laid for the admission of Reed's confession and (3) McNeal was prejudiced by the reading of Reed's confession to the jury.

In regard to the requirements of Miranda, the record discloses no evidence of sustained interrogation. Reed was first advised of his rights on December 2, 1967, at which time he signed an advisement form, but declined to make a statement. On December 4, 1967, after Reed was again advised of his rights, he made the incriminating confession which was later admitted into evidence at the trial. The advisement of rights form that was signed by Reed was also admitted into evidence, and the language of the form clearly complies with the dictates of Miranda v. Arizona, Supra. We have held that the requirements of Miranda were met and that a defendant was properly advised of his rights under somewhat similar circumstances in Reed v. People, Colo., 467 P.2d 809 (1970).

Reed claims that he did not make the statement that was admitted into evidence and alleges that he was under the influence of narcotic drugs at the time he was questioned by Detective Villano. At the trial, however, Detective Villano denied Reed's allegation and testified as to the manner in which the statement was taken and to the presence of a court reporter during the taking of the statement. A hearing that fully complied with the constitutional standards of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), was held outside of the presence of the jury to determine the voluntariness of the confession, and the trial court made a finding that the confession was voluntary. In Whitman v. People, Colo., 460 P.2d 767 (1967), we directed that the trial court make an affirmative finding that a confession was voluntary at the conclusion of the Jackson v. Denno hearing. See Compton v. People, 166 Colo. 419, 444 P.2d 263 (1968).

Although the trial court's finding of voluntariness appears in the record in a side-bar conference, it is not as clear as might be desired. The better practice is for the trial judge to make clear and explicit findings as to the voluntariness of the confession at the conclusion of the In camera hearing. Whitman v. People, Supra; Compton v. People, Supra.

The jurors were properly instructed as to the weight to be given the confession and were advised that they could disregard the confession in its entirety if they did not believe it to be voluntary. See Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971).

Reed also claims that the Sixth Amendment rights afforded to an accused by Escobedo were not recognized by the trial court, but again we find nothing in the record to show that Reed sought or was denied the right to counsel before or during the taking of the controverted statement. Nor was Reed deprived of his Sixth Amendment right to counsel through surreptitious means, such as were present in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). For limitations on the Sixth Amendment rights afforded by Massiah, see Miller v. California, 392 U.S. 616, 88 S.Ct. 2258, 20 L.Ed.2d 1332 (1968).

Defendants further contend that a sufficient foundation was not laid for the admission of the defendant Reed's confession. The record indicates that Detective Villano reviewed the unsigned transcription of his interrogation of Reed and testified that it accurately reflected the questions which he asked and the answers given by Reed. He also testified that even without the transcription he could testify as to the substance of what was said by the defendant Reed. Reed, however, contends that Detective Villano is not qualified to identify or to lay a proper foundation for the admission of the statement, unless he also was the one who transcribed it. This Court disposed of a similar contention in Jordan v. People, 151 Colo. 133, 376 P.2d 699 (1962), cert. den. 373 U.S. 944, 83 S.Ct. 1553, 10 L.Ed.2d 699, when it was held that '(a) past recollection recorded meets the requirements for admissibility when it appears that the witness (1) can identify the memorandum, (2) adequately recalls the making of it at or near the time of the event, either as recorded by himself or by another, and (3) can testify to its accuracy.'

Courts must recognize the difficulty which an officer has in remembering the details of numerous investigations which are conducted over an extended period of time. People v. Griswold, 405 Ill. 533, 92 N.E.2d 91 (1950). In Jordan v. People, Supra, this Court, when confronted with a similar claim, said:

'A faithful memorandum is acceptable, not conditionally on the total or partial absence of a present remnant of actual recollection in the particular witness, but Unconditionally; because, for every moment of time which elapses between the act of recording and the occasion of testifying, the actual recollection must be inferior in vividness to the recollection perpetuated in the record.' See, also State v. Easter, 185 Iowa 476, 170 N.W. 748 (1919).

Lastly, the defendant McNeal argues that the reading of the confession was prejudicial to him. The record reflects that at the time Reed's statement was admitted into evidence, the jury was instructed that the statement was admissible only as to Reed and could only be considered against Reed. All references to McNeal that appeared in the Reed confession were properly and effectively stricken, and no implication of McNeal can be read into the confession....