People v. LaFrankie , 17 Brief Times Rptr. 1502 ( 1993 )

Justice SCOTT

delivered the Opinion of the Court.

The People bring this interlocutory appeal pursuant to section 16-12-102(2), 8A C.R.S. (1986), asking that we reject the determination of the trial court and reverse its order suppressing statements made to the police by the defendant. After examining the totality of the circumstances, the district court concluded that because the defendant was interviewed by the police for the purpose of obtaining a confession and because the defendant reasonably believed he was not free to leave, the defendant was subjected to a custodial interrogation. For these reasons, and due to the fact that the police failed to advise the defendant of his Miranda¹ rights, the district court granted the defendant’s motion to suppress. We find sufficient evidence to support the trial court’s determination that defendant’s statements were made in the course of a custodial interrogation, and accordingly we affirm.

I.

On April 10, 1992, the defendant below, Leslie Benjamin LaFrankie (LaFrankie), was questioned by two Longmont police detectives regarding the theft of a computer from LaFrankie’s place of employment, High Tech Manufacturing (High Tech). The detectives, Lee Brian Scott and Pat Goeke, singled out LaFrankie for questioning based on information provided by management personnel at High Tech who suspected that LaFrankie had committed the theft because LaFrankie had access to the computer and had made suspicious statements to High Tech personnel.

The detectives arrived at High Tech at about 3:00 p.m. and spoke briefly with High Tech’s management personnel, including its president. After meeting with the police officers, a High Tech manager was dispatched to escort LaFrankie, who was working on the production floor, to the main administrative area where the detectives were waiting in an area just outside the president’s office. Upon LaFrankie’s arrival, the detectives identified themselves and, in the presence of High Tech’s management staff, asked LaFrankie if he “had a few minutes to talk.” LaFrankie, stating that he wanted to get the matter straightened out, agreed to meet with the officers.

Still in the presence of the management staff, the detectives were directed to the president’s office so that they could speak privately with LaFrankie. Officer Scott described the office as “very large” (fifteen feet by fifteen feet) and “well-lit.” The detectives closed the office door and began their questioning.² One detective sat in a chair next to LaFrankie and the other sat about six feet away. Both detectives were armed but no weapons were visible. Officer Scott began the interview by explaining to LaFrankie that people frequently made mistakes and that the best thing to do was to try and rectify the mistake once “you realize your error.” Officer Scott stated that he believed LaFrankie had knowledge of the recent computer theft because LaF-rankie had made statements regarding the theft before anyone else at the plant, except the president and general manager, knew about the incident. LaFrankie denied knowing anything about the whereabouts of the stolen computer. Officer Scott then asked LaFrankie if he would consent to a search of his house. LaFrankie said he would allow such a search and admitted that the officers would find a computer there, but said he did not believe that the computer at his house was the one stolen from the office. In apparent disbelief, Officer Scott told LaFrankie that he was acting “as nervous as a cat on a hot tin roof.” LaFrankie then explained he was nervous because he had recently purchased a computer from a garage sale for $200 and it was possible that the computer he purchased was the one that had been stolen from the plant. Officer Scott again indicated disbelief at LaFrankie’s story and told LaFrankie he thought he was lying. The majority of the interview was conducted in a similar fashion. For example, Officer Scott told LaFrankie not to worsen his mistake by lying; that LaFrankie would fail a polygraph test because he was lying; that LaFrankie had “a big bright sign on [his] forehead that says you made a mistake here”; that LaFrankie’s story was too coincidental to be believed; that LaFrankie looked nervous and sweaty — as if he were lying; that LaFrankie could be used as a “poster boy for lying”; and that LaFrankie had insufficient funds in his checking account to purchase a computer for $200 cash. Nonetheless, LaFrankie steadfastly maintained his innocence through most of the interrogation.

However, after about thirty minutes of this type of questioning, LaFrankie confessed to having stolen the computer. In the course of the closed-door interview, LaFrankie was never informed that he was free to leave or that he was not in official custody. Neither Officer Scott nor Officer Goeke advised LaFrankie of his Miranda rights before or during the interview. Immediately before he confessed, however, LaFrankie was informed that if he admitted his participation he would not be arrested and put in jail that night, but that a felony summons would be issued in six weeks if charges were to be filed against him. After confessing to the theft, LaFrankie led the detectives to his home and allowed them to search his home to recover the stolen computer.

LaFrankie was charged with theft of a thing of value of $300 or more, in violation of section 18-4-401(l)(a), 8B C.R.S. (1986). On May 27, 1992, he was served with a summons to appear. He subsequently filed a motion to suppress his confession and the evidence obtained as a result of his April 10 interview with Officers Scott and Goeke. After a hearing on November 30, 1992, the district court granted LaFrankie’s motion to suppress, finding that LaFrankie was subjected to a custodial interrogation without having been advised of his Miranda rights. We affirm the order of the district court granting LaFrankie’s motion to suppress.

II.

Under Miranda v. Arizona, 384 U.S. 436, 444, 478, 479, 86 S.Ct. 1602,1612,1629, 1630, 16 L.Ed.2d 694 (1966), evidence obtained as the result of a custodial interrogation may not be used against a defendant unless, prior to questioning, the defendant is warned that he has the right to remain silent, that any statement he makes may be used as evidence against him, that he has the right to have an attorney present, and that he has the right to have an attorney appointed for him if he cannot afford one. See Jones v. People, 711 P.2d 1270, 1275 (Colo.1986) (statements made during custodial interrogation are admissible only if defendant was given a Miranda advisement). Here, there is no dispute that LaFrankie was not advised of any of these rights. Thus, if the interview in question constituted “custodial interrogation,” the evidence obtained as a result of the interview must be suppressed. People v. Horn, 790 P.2d 816 (Colo.1990).

Interrogation” refers to words or actions “on the part of the police officer that the officer ‘should know are reasonably likely to elicit an incriminating response from the suspect.’ ” People in Interest of J.C., 844 P.2d 1185, 1189 (Colo.1993) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980)). Here, it is undisputed that the interview in question was designed to elicit incriminating information from LaFrankie. Thus, the only question is whether the interrogation was custodial in nature.

Custody is not limited to those situations in which a formal arrest has taken place, but also includes those situations where the person interrogated “has been significantly deprived of his freedom of action.” People v. Trujillo, 784 P.2d 788, 791 (Colo.1990). An interrogation is custodial if a reasonable person in the suspect’s position would believe that he is deprived of his freedom of action in any significant way. Horn, 790 P.2d at 818; accord People v. Cleburn, 782 P.2d 784, 786 (Colo.1989). In determining whether a reasonable individual in the same situation would feel significantly deprived of his freedom of action, a court must consider the totality of the circumstances surrounding the interrogation, including the following factors:

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; whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; the officer’s response to any questions asked by the defendant; whether directions were given to the defendant during the interrogation; and the defendant’s verbal or nonverbal response to such directions.

People v. Thiret, 685 P.2d 193, 203 (Colo.1984), quoted in Horn, 790 P.2d at 818 and Trujillo, 784 P.2d at 791.

The issue of custody is “essentially a factual question that involves a trial court’s assessment of the credibility of witnesses and a weighing of their testimony.” Trujillo, 784 P.2d at 792. Our role on appeal, therefore, is to “determine whether the trial court’s findings of historical fact are adequately supported by competent evidence and whether the court applied the correct legal standard to these findings in resolving the issue before it.” Id. A trial court’s findings of fact will not be reversed on appeal when supported by competent evidence and when the trial court applied the correct legal standard. Horn, 790 P.2d at 818.

In the instant case, the People allege that the district court focused on the interviewing detectives' desire to extract a confession, to the exclusion of other factors which should have been considered as part of the “totality of the circumstances.” As evidence that the district court erroneously based its finding of custody on the detectives’ admitted desire to elicit a confession, the People point to the following passage from the court’s order:

[T]he encounter indicates to the Court that since the purpose of the interview was to get the defendant to confess, that that is what custodial interrogation is about and that is what Miranda is about. If you are going to interview somebody who you are going to try to get a confession from, you at least have to advise them of their rights. [Otherwise Miranda doesn’t mean anything.

We agree that this excerpt from the district court’s order, when read alone, may be misleading since it could be interpreted to require a Miranda advisement whenever the purpose of an interrogation is to gain a confession.³ The court’s order, however, clearly sets forth the standard established by our precedent for determining whether the defendant was subjected to a custodial interrogation, i.e., that “a reasonable person in the defendant’s position would have considered himself deprived of his freedom of action in a significant manner during a police interrogation.” Moreover, the court's conclusion that the interrogation was custodial is based on factors other than the motivation behind the detectives’ questioning of LaFrankie. In reaching its decision, the court focused on the totality of the circumstances surrounding the interview, including the “accusatory tone” used by the detectives⁴ and the fact that the detectives never told LaFrankie that he was free to leave. Additionally, the court noted that the interview took place at LaF-rankie’s place of employment; that the interrogation took place in the president’s office in a 15-by-15 foot room;⁵ that the only people in the room were the two police officers and LaFrankie; that the interview lasted for thirty minutes; that LaFrankie was accused of lying on several occasions; that LaFrankie’s statements were “not volunteered”; and that LaFrankie was told he would fail a potential polygraph test.

We hold that this evidence is competent to support the order of suppression. Our decision is supported by People v. Horn, 790 P.2d 816 (Colo.1990), where we found the evidence of custodial interrogation sufficient to support the trial court’s suppression order. As in the instant case, in Horn we noted the significance of the following facts: the interview was “accusative from the outset” (the defendant was accused of lying at least five times); during the course of the interview the defendant was urged to take a polygraph exam and encouraged to confess for the therapeutic value of the confession; the interview was conducted in an 8-by-12 foot room; the interview lasted for about thirty minutes; only the interrogating officer and defendant were present; and the sole purpose of the questioning was to obtain a confession from the defendant. Id. at 818-19. Additionally, unlike the instant case, the defendant in Horn was “repeatedly told that he was free to leave.”⁶ Id.

Finally, we believe that the district court applied the correct legal standard in resolving the case before us. At the outset of its order the court stated that the standard for determining custodial interrogation is whether “a reasonable person in the defendant’s position would have considered himself deprived of his freedom of action in a significant manner,” almost a verbatim restatement of the standard utilized in Horn, Trujillo, and Cleburn. See discussion supra, pp. 704-705. And in concluding that LaFrankie was in custody, the court stated as follows:

I mean there needs to be a time when a person is advised of their rights. You don’t need to do it when you are investigating and you are asking questions and you are trying to figure out what is going on. You don’t need to do it if the person can walk away from you and the objective test is whether the person can figure that out. In this case, the Court believes there was custodial interrogation. ... The Court has found that he was in custody and ... he was not aware he was free to leave.

(Emphasis added). Thus, it appears that the court was well aware of the proper legal standard and correctly applied that standard to the totality of the circumstances in making its determination.

III.

In summary, we agree with the district court that LaFrankie was subjected to custodial interrogation, without having been advised of his rights pursuant to Miranda. The district court considered the totality of the circumstances, including the purpose of the interview, the words used by the officers, the setting and duration of the interview, and the fact that LaFrankie was never informed that he was free to leave the interview, and, in doing so, found that the interrogation of LaFrankie was custodial. In reaching this conclusion, the court applied the correct legal standard, i.e., whether a reasonable person in the suspect’s position would feel significantly deprived of his or her freedom of action. Thus, we affirm the order of the district court suppressing statements and evidence obtained as a result of the April 10 custodial interrogation of the defendant.

MULLARKEY, J„ dissents. ROVIRA, C.J., and YOLLACK, J., join in the dissent.

1 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2 . The interview was tape-recorded without LaF-rankie’s knowledge. The tape and a transcript of the interview were admitted into evidence at the suppression hearing.

3 . While the purpose of an encounter is one of the prominent factors which should be considered in determining if a reasonable person would feel deprived of his freedom of action in a significant way, see Thiret, 685 P.2d at 203, we do ndt today establish a per se rule whereby a Miranda advisement is required any time a police officer's actions are motivated by the desire to obtain a confession- or other information from a suspect.

4 . On at least ten different occasions the detectives expressed disbelief at LaFrankie’s statements. At one point, Officer Scott told LaFrankie, "Listen to me, Ben. Don’t blow smoke at me, cause I’m going to find out, okay." In another instance Officer Scott told LaFrank-ie, “you have a big bright sign on your forehead that says you made a mistake here.” Additionally, Officer Goeke told LaFrankie "we could use you as a poster boy for lying."

5 . Although the interrogation by Officers Scott and Goeke did not take place at the station house, there can be few places more intimidating or potentially coercive to an individual than one’s place of employment. This is especially true when the employee is first confronted in the presence of senior management, escorted to the president’s office, interviewed while the door is closed, and never informed that he is free to leave. See, e.g., United States v. Carter, 884 F.2d 368 (8th Cir.1989) (holding that a bank employee questioned by police in bank president’s office was subjected to custodial interrogation); United States v. Nash, 563 F.2d 1166 (5th Cir.1977) (finding custodial interrogation where suspect was taken to security office at his place of employment by his supervisor-, interrogated by an FBI agent for 45 minutes with the office door closed, and was not informed that he had the right to leave the office); United States v. Phelps, 443 F.2d 246 (5th Cir.1971) (interrogation custodial where police questioned suspect at his place of business); cf. United States v. Dockery, 736 F.2d 1232 (8th Cir.1984) (police questioning of defendant at place of employment not custodial where defendant initiated interview and was told that she did not have to answer any questions, that she was not under arrest, and that she was free to leave at any time). While the place of interrogation is significant, it is not controlling. See generally 1 Wayne R. LaFave and Jerold H. Israel, Criminal Procedure § 6.6 (1984) (questioning has been held to be noncustodial where it occurred at a place of employment, however the circumstances of the particular case need to be carefully assessed; police interviews were held to be custodial where an employee was marched off to a security office of his employer, or where a suspect was put into a police-dominated situation).

6 . In Horn, the interview took place at the police station. Although this fact certainly supports a finding of custody, it is not conclusive. United States v. Hudgens, 798 F.2d 1234 (9th Cir.1986); Graham v. State, 535 N.E.2d 1152 (Ind.1989); State v. Perkins, 444 N.W.2d 34 (S.D.1989). Moreover, in Horn, it does not appear that either the district court or this court emphasized the location of the interview more than any other factor in determining the existence of custodial interrogation. Horn, 790 P.2d at 818— 19.