The People Of The State Of Colo. v. Lucas, 05CA1621.

Citation232 P.3d 155
Case DateAugust 06, 2009
CourtCourt of Appeals of Colorado

232 P.3d 155

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
James Edward LUCAS, Defendant-Appellant.

No. 05CA1621.

Colorado Court of Appeals,

June 25, 2009.
As Modified on Denial of Rehearing Aug. 6, 2009.

232 P.3d 156


232 P.3d 157


232 P.3d 158
John W. Suthers, Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Sarah Burtis, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, James Edward Lucas, appeals the judgment of conviction entered on a jury verdict finding him guilty of first degree burglary, third degree assault, menacing, second degree criminal tampering, and first degree criminal trespass. He asserts that the trial court erred by (1) failing to suppress statements he made to police, (2) wrongly instructing the jury on the law regarding voluntary intoxication, (3) denying several of his challenges for cause during jury selection, (4) allowing the prosecution to make improper comments in closing argument, and (5) unconstitutionally subjecting him to double jeopardy. We disagree and therefore affirm.

232 P.3d 159
I. Factual Background

Defendant spent the evening and early morning before his arrest drinking with friends at various clubs, bars, and restaurants. He drove home after closing time and upon arrival noticed that his neighbor, the victim in this case, had left her garage door open.

Defendant went to his own home, changed into black clothing, a ski mask, and gloves, and obtained a pocket knife. He then entered the victim's house, moved some things about, shut off her electrical breakers, and let the air out of one of her car's tires.

At some point defendant climbed the victim's stairs inside her house. The victim awoke, screamed at him to leave, and then chased him out of her house. The victim chased defendant until he was at the end of the driveway. Defendant then turned, ran toward the victim, and hit her on the side of the head with a knife in his hand.

The victim called the police, who approached defendant's home at approximately 5:30 a.m. that morning as part of a neighborhood sweep. While inside defendant's home, they noticed drops of blood in various locations and a cut on defendant's hand. The police arrested defendant and transported him to the stationhouse.

The police interviewed defendant twice on the day of his arrest. The officer conducting the first interview did not inform defendant of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant made vague but incriminating statements during the first interview. Initially he stated that he remembered nothing about his activities the previous night, but later said it was possible that he had “done it” and he was “scared that he might have done it.”

Approximately an hour later, a second officer delivered the Miranda warnings, conducted a second interview, and obtained a detailed confession from defendant.

Before trial, defendant sought to suppress his statements from both interviews. The trial court ruled that the initial interview was conducted in violation of Miranda, and that defendant's statements therein would not be admitted into evidence. However, the court found the second interview-including defendant's detailed confession-was admissible.

After trial, the jury found defendant guilty as previously noted. The trial court entered judgment and sentenced defendant to twenty-four years in the custody of the Department of Corrections for the burglary charge. It also imposed lesser sentences for the other offenses and set them to run concurrently. This appeal ensued.

II. Suppression of Defendant's Statements

Defendant contends that the trial court erred by denying his motion to suppress the statements he made during his second interview at the police station because the Miranda warnings issued by the interrogating officer were ineffective. We disagree.

A. Standard of Review

A trial court's ruling on a motion to suppress presents a mixed question of fact and law. People v. Medina, 25 P.3d 1216, 1223 (Colo.2001). We review questions of law de novo, while deferring to a trial court's findings of fact if supported by competent evidence. Id. However, where, as here, the statements sought to be suppressed are video-recorded, and there are no relevant disputed facts outside of the recording, we are in a position similar to that of the trial court to determine whether the statements should have been suppressed. People v. Madrid, 179 P.3d 1010, 1014 (Colo.2008).

B. Preservation of the Issue

Initially we conclude, contrary to the People's contention, that defendant adequately preserved his objection because he moved to suppress the statements made at the police station and argued that the statements were not voluntary. In addition, defense counsel argued that the post- Miranda statements should be excluded because they were tainted by the earlier interrogation.

Moreover, even though the trial court did not have the benefit of the Missouri v. Seibert decision, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), and therefore made no findings concerning the factors identified

232 P.3d 160
in Seibert, as previously noted we are essentially reviewing de novo because the statements are video-recorded and there are no disputed facts concerning the circumstances surrounding the statements. Accordingly, a remand for further findings is not required.
C. Applicable Law

The Fifth Amendment grants every citizen the right not to be “compelled, in any criminal case, to be a witness against himself.” To protect this right, law enforcement officers must inform a person in their custody-prior to interrogation-that he has “a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602. These warnings serve to ensure that a person has sufficient knowledge of his constitutional rights, and that any waiver of those rights is made voluntarily, knowingly, and intelligently. Id. at 467, 475, 86 S.Ct. 1602.

Certain interrogation techniques can render the Miranda warnings ineffective for purposes of advising suspects of their constitutional rights. In Seibert, 542 U.S. at 604-05, 124 S.Ct. 2601, decided two months after the trial court's suppression ruling here, the Supreme Court considered a method of questioning by which police deliberately withheld Miranda warnings before an initial interview, extracted a confession during that interview, and then gave the suspect a brief break. Upon resumption of questioning, the police administered the warnings, obtained a waiver, and then extracted a second confession covering essentially the same information. Id. at 605, 124 S.Ct. 2601.

The Court found that in the circumstances of that case, it was “likely that if the interrogators employ the technique of withholding warnings until after interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content.” Id. at 613, 124 S.Ct. 2601. When Miranda warnings are inserted in the midst of a continuing interrogation, they are likely to deprive a defendant of the knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. Id. at 613-14, 124 S.Ct. 2601.

A plurality of the Seibert Court established a five-factor analysis to be used in determining whether Miranda warnings provided after an initial interrogation are effective. Id. at 615, 124 S.Ct. 2601. These factors include (1) the completeness and detail of the questions and answers in the first round of interrogation, (2) the overlapping content of the two statements, (3) the timing and setting of the first and second interrogations, (4) the continuity of police personnel, and (5) the degree to which the interrogator's questions treat the second round as continuous with the first. Id.

Justice Kennedy concurred, but stated his preference for the analysis of Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). That case held that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, does not necessarily taint a subsequent warned confession. Id. at 318, 105 S.Ct. 1285. The relevant inquiry under Elstad is whether the initial unwarned and subsequent warned confessions were voluntary. Id. Justice Kennedy would break from this analysis only where the police have deliberately employed a “two-step strategy” and withheld Miranda warnings until after an initial confession has been obtained. Seibert, 542 U.S. at 622, 124 S.Ct. 2601. His analysis in the concurrence thus requires an inquiry into the subjective intent of the interrogating officer. State v. Fleurie, 968 A.2d 326, 332 (Vt.2008).

It is unclear whether the plurality's approach or Justice Kennedy's will dominate future jurisprudence. But cf. Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the ‘holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’ ” (quoting

232 P.3d 161
Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976))). However, as explained below, we conclude that under either approach, the trial court did not err in admitting defendant's second stationhouse interview.
D. Analysis Under the Seibert Plurality Approach

Under the Seibert plurality approach, we conclude that...

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