People v. Theander

CHIEF JUSTICE BENDER,

dissenting.

T49 The majority holds that Stephanie Theander's statements were voluntary and that the interrogations on August 8 and 9 were not custodial. Maj. op. 112-8. I disagree with both conclusions. In my view, Theander's statements were the product of a police-dominated, coercive atmosphere and were involuntary, and the August 8 interrogation became custodial at least forty-nine minutes after the interview began. Hence, I would affirm the district court's order suppressing Theander's statements as involuntary and, therefore, respectfully dissent.

I.

50 On the morning of August 8, Stephanie Theander dropped her children off at school, checked into a hotel, and then attempted suicide by ingesting sleeping pills, tequila, and margaritas.

T51 At about 12:30 p.m., four uniformed police officers arrived at the hotel. They were aware of the ongoing criminal investigation into Theander's ex-husband's death, and they also knew that Theander was a suspect in that investigation. Hotel staff had unlocked the door but could not open it because the security latch was engaged. Through the partially open door, police saw that Theander was lying on the floor in a semiconscious state. They directed Theander to show her hands, which she was able to do, and then kicked in the door.

1 52 Onee inside, police searched Theander for weapons. Finding none, police permitted EMTs to enter the room. EMTs strapped Theander to a gurney, carried her to an ambulance, and took her to the hospital. While en route, an EMT inserted an intravenous line into Theander's arm and asked her general questions. Theander was able to tell the EMT that she had ingested sleeping pills, but her statements were mostly "incomprehensible." When prompted, she was unable to spell her entire last name. Officer Alvord, one of the four responding officers, rode with Theander in the back of the ambulance.

53 Upon arrival, Theander was taken to the emergency room and placed in an emer-geney room bed. Because she could not undress herself, hospital staff removed Theander's clothes and dressed her in a hospital gown. - Alvord, who had remained with Theander this entire time, told a nurse that he needed to collect Theander's clothes as evidence, which he did. Hospital staff then inserted a tube into Theander's nose and pumped charcoal into her stomach to counteract the effects of the sleeping pills.

T 54 At about 1:15 p.m., Detective Trujillo arrived at the hospital to relieve Alvord. Soon after, Detective Avrech also arrived and met Trujillo in Theander's room. Avrech was not in uniform, but his badge, gun, and handcuffs were visible. While standing at Theander's bedside, Trujillo told Avrech to collect physical evidence from Theander and that "no cleaning of her hands or any other part of her body be conducted until such time that evidence could be collected from her." Trujillo then left. At some point, Avrech told hospital staff to admit Theander to the hospital under an alias "so that people would not be contacting her unnecessarily before there was an opportunity for [police] to be able to have a chance to talk with her."

155 A crime scene investigator then arrived, and he and Avrech took photographs of Theander's face, shoulders, arms, hands, abdomen, back, and legs. To accomplish their task, they directed Theander to move her body and limbs in various ways, and, when she was unable to move, the crime scene investigator physically manipulated Theander's body while Avrech took photographs. During this process, Theander occasionally opened her eyes and looked at Av-rech, and Avrech testified that, because she was "not being resistive" to their directions, "it was clear that she understood our questions."

156 At about 2:30 p.m., hospital staff transferred Theander to a private room in a different part of the hospital, and Avrech followed Theander and remained with her. Theander drifted in and out of sleep and mumbled questions about where she was, how she got there, and what day or time it was. The doctor arrived and asked Thean-der whether she was still having suicidal thoughts, to which she affirmatively nodded. The doctor also told Theander that she had to undergo a mental health evaluation and was required to stay in the hospital. When asked whether there was anything the doctor could do to help her, Theander said that the doctor could kill her.

157 Meanwhile, Sergeant Volesky, who was in charge of the criminal investigation into Theander's ex-husband's death, ordered that a Sexual Assault Nursing Exam (SANE) be conducted. When the SANE nurse arrived, Avrech told her that police were concerned with "evidence collection" and directed her to collect samples of Thean-der's fingernails "and things of that nature." The SANE nurse described Theander as "sleepy, tearful, and quiet" during the three- and-a-half-hour exam, during which Thean-der drifted in and out of sleep, expressed concerns over whether her children were alone and where they were, stated that she did not have her cell phone, and vomited. The SANE nurse told Avrech about Thean-der's concerns for her children and that she did not have her cell phone and, at the end of the exam, provided him with the physical evidence he had requested as well as blood and urine samples. Avrech then reentered Theander's room while she was asleep and unplugged her phone to "keep people from contacting [her]."

1 58 Theander slept off and on until about 11:00 p.m., when she requested crackers and ginger ale and was able to eat and drink without assistance. About fifteen minutes later, Volesky and Detective Jungmeyer arrived to start the interrogation. Jungmeyer began by telling Theander that she was not "going to be in custody today." Theander asked whether the interrogating officers knew where her children were, and Jung-meyer responded that she did and that they were "somewhere very safe." Then, Jung-meyer asked Theander questions about her children, her strained relationship with her ex-husband, her issues with depression, and her suicide attempt. - Theander cried at times, explained that she had "lost everything," had not been a "good mom," and had spent about a month researching methods to kill herself.

159 After forty minutes, Jungmeyer explained that she was there to tell Theander that her ex-husband had been "killed." She then told Theander that "good people make bad decisions" and that it was important for Jungmeyer to hear "about everything that happened." Upon hearing Theander's story that she had met a man in Denver who had impliedly agreed to harm her ex-husband, Jungmeyer accused Theander of lying, told her that she was the prime suspect in a criminal investigation into her ex-husband's death, and stated that police would find her DNA and fingerprints on the murder weapon.

160 As the interrogation continued, Theander requested an attorney on at least two occasions. In response to her first request, Jungmeyer told Theander that she was "welcome to talk to a lawyer," and Vole-sky told Theander that she was not in custody. Later, Jungmeyer again told Theander that she was not in custody, and Volesky promised her that she was "not going to be arrested" or taken into custody. Later, Jungmeyer responded to another of Thean-der's requests by telling her that she did not need a lawyer if she was "just a witness." Toward the end of the interrogation, Jung-meyer expressed concern for Theander's children and told her that "your babies are going to want to know that you helped and you did whatever you could to make sure that their little minds and hearts will feel safe." The interrogating officers left at about 12:40 a.m.

T 61 On August 9, Jungmeyer and Volesky returned to Theander's hospital room. Jung-meyer began the interrogation by telling Theander that she had returned to relay a message from Theander's daughter: "She wanted me to tell you that she loves you." Jungmeyer then stressed the importance of finding the man from Denver because she had "made that promise to your babies, and that's something I take very seriously." Theander began to ery, and Jungmeyer assured her that she should not hold herself responsible for what the man from Denver did to her ex-husband. After Theander asked the interrogating officers to leave and requested an attorney, Jungmeyer threatened to tell Theander's children that Thean-der knew who had killed their father but had refused to help police. Theander eventually stopped speaking, and the interrogating officers left.

T 62 On these facts, the majority concludes that Theander's statements were voluntary and that she was not in custody and therefore not entitled to the protections of Mi-ramda.

II.

T 63 Because my analysis of the voluntariness issue would be dispositive, I address that issue first,. The majority concludes that Theander's statements were voluntary because no coercive government conduct occurred, and, even if it did, it played no "significant role" in inducing Theander's statements. Maj. op. 1942, 45. - Recognizing that the deliberate exploitation of a person's weakness can render statements involuntary, the majority nevertheless finds "no evidence" that the interrogating officers deliberately exploited Theander's weakness.Maj. op. 11 39, 43.

T 64 In my view, the record reveals a systematic effort by police to deliberately exploit Theander's weakened physical and mental state so they could gather evidence from her and induce her into making inculpatory statements. Under the direction of police, Thean-der was admitted to the hospital under an alias, effectively precluding family and friends from finding or contacting her. Having isolated Theander, police then began collecting evidence from her. Police collected Theander's clothes, prohibited hospital staff from cleaning her so as not to disrupt their evidence - collection - efforts, - manipulated Theander's body and photographed her in various positions, directed a nurse to conduct a SANE examination, and collected samples of Theander's hair, fingernails, blood, and urine. After Theander expressed concerns regarding the whereabouts of her children and having no cell phone, police unplugged her phone, ensuring that she had no means to contact anyone. Then, a mere eleven hours after Theander had been found semiconscious on a hotel room floor from having attempted suicide, the officers began their interrogation. This police-dominated, coercive atmosphere continued through August 9, and, although the record would support a conclusion that Theander had recovered physically to some degree, she was still in a mentally weakened state, still isolated from family and friends, and the interrogating officers' questioning tactics, which focused on exploiting Theander's concerns for her children's welfare, were more coercive.

T 65 Given this record and considering the totality of the cireumstances, I would conclude that the police deliberately exploited Theander's weakened physical and mental state by isolating her from her family and friends and placing her in a police-dominated, coercive atmosphere. I would further hold that the police's actions in deliberately exploiting Theander's weakness played a significant role in inducing her statements such that they were not "the product of an essentially free and unconstrained choice." See Effland v. People, 240 P.3d 868, 878 (Colo.2010) (quoting People v. Raffaelli, 647 P.2d 230, 234 (Colo.1982)); see also People v. Gennings, 808 P.2d 839, 843-44 (Colo.1991). Hence, I would affirm the district court's order suppressing Theander's statements during the August 8 and 9 interrogations as involuntary.

IIL

T 66 My conclusion that Theander's statements were involuntary would render the custody issue moot. However, because I also disagree with the majority's custody determination, I write separately to explain why. The majority concludes that the trial court erred in its custody analysis by "placing considerable weight on the fact that the officers subjectively believed that Theander was a suspect" and other facts of which Theander was "unaware." Maj. op. (123-24. Although I agree with the majority that we do not consider the officers' unarticulated subjective views when making custody determinations, an "officer's knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned," insofar as they affect how a reasonable person in the individual's position "would gauge the breadth of his or her freedom of action." People v. Matheny, 46 P.3d 453, 464-65 (Colo.2002) (quoting Stansbury v. California, 511 U.S. 318, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)).

167 Here, forty minutes after the August 8 interrogation began, Jungmeyer told Theander that her ex-husband had been "killed," that "good people make bad decisions ... they wish they could take back," and that she needed to hear "about everything that happened." In my view, these statements were sufficient to inform Thean-der that the interrogating officers were collecting evidence to use in a criminal investigation, and the clear import of Jungmeyer's remark that "good people make bad decisions" was that Theander was a suspect in that investigation. At the forty-nine-minute mark, Jungmeyer told Theander that she was the prime suspect in a criminal investigation and that they would find her DNA (which police had collected from her that day) on the murder weapon:

I think you did this on your own.... [The fact of the matter is we have the knife, Stephanie, we have the knife. And your fingerprints are going to be on that knife when we process it, your DNA is going to be there.... But I don't think that it's some stranger that came into Gregg's house. I don't believe that Stephanie. I believe it was you.

'I 68 Upon hearing these statements, a reasonable person in Theander's position would know of the interrogating officers' subjective beliefs that she was the prime suspect in a criminal investigation and, as a result, would have felt less free to terminate questioning. See People v. Holt, 233 P.3d 1194, 1198 (Colo.2010) (reasoning that police officers' actions in detaining a suspect were sufficient to inform him of the officers' subjective belief that he was the prime suspect in a felony investigation).

169 I also disagree with the majority's determination that Theander was unaware of certain facts, such as the police's evidence collection tactics, and that the district court erred by relying on them. Maj. op. 124. At the suppression hearing, Avrech testified that he and Trujillo discussed "evidence collection" at Theander's bedside, and he testified that Theander would open her eyes and look at him while he and the crime scene investigator manipulated her body to photograph her. The record also includes a consent form titled "RELEASE OF EVIDENCE/INFORMATION TO LAW ENFORCEMENT" that was purportedly signed by Theander and allows for "collection & laboratory examination of evidence" by police. Thus, the record suggests that Theander was aware, to some degree, of the police's evidence collection tactics, and I am especially wary of concluding that Theander was unaware of the police's efforts to collect evidence from her during the SANE examination when the record suggests that she consented to exactly that.¹ Accordingly, the district court did not err by considering the police's evidence collection tactics in its custody determination, insofar as the record supports the conclusion that a reasonable person in Theander's position would have been aware of them.

170 Finally, unlike the majority, I see no principled basis on which to distinguish Eff land. Here, similar to the circumstances present in Effland, (1) Theander was accompanied to the hospital by a uniformed police officer; (2) a uniformed police officer was stationed next to Theander's bed, in her room, or outside her room during all of August 8, and the district court found, with record support, that she was aware of his presence; (8) Theander requested an attorney on at least two occasions; (4) the interrogating officers ignored Theander's requests and continued to question her; (5) although the interrogating officers told Theander that she was "welcome to talk to a lawyer," they repeatedly responded to her requests by stating that she was not in custody and would not be taken into custody, implying that she was not entitled to an attorney; (6) Jungmeyer sat in close proximity to Thean-der during the interrogation; (7) Jungmeyer sat between Theander and the door; (8) Theander was emotionally distraught and cried during the interrogation; (9) there were two officers present during the interrogation; (10) the purpose of the interrogation was to collect evidence to use in a criminal investigation into Theander's role in her ex-husband's death; (11) the interrogation consisted of pointed questions and short answers and did not proceed in narrative form after Jungmeyer told Theander that her purpose was to gather evidence to use in a criminal investigation; and (12) Theander was told that she could not leave the hospital until a mental health evaluation was conducted, and evidence in the record shows that she was physically unable to leave her hospital bed and was connected to an intravenous line. See Effiand, 240 P.3d at 875. Additionally, I would consider, as did the district court, (13) the police officers' subjective beliefs that Theander was a suspect, insofar as those beliefs were communicated to her by words or deeds; and (14) the police's evidence collection tactics, such as photographing Thean-der and conducting a SANE examination, insofar as those facts would affect how a reasonable person in Theander's position would perceive her situation.

T7L Based on the totality of the cireum-stances, and in light of the police's evidence collection tacties throughout the day and the interrogating officers' statements and intimations during questioning, I would conclude that a reasonable person in Theander's position would have felt "deprived of [her] freedom of action in a manner similar to a formal arrest" at least at the forty-nine-minute mark of the August 8 interrogation and would suppress, for violations of Miranda, all of Theander's statements from that point. See Holt, 288 P.8d at 1199.

T72 For these reasons, I respectfully dissent.

I am authorized to state that Justice HOBBS and Justice RICE join in this dissent.

1 . Theander has disputed the authenticity of her signature and the validity of her consent in the district court, and I express no opinion on either issue.