DocketNumber: Court of Appeals No. 10CA1993
Citation Numbers: 414 P.3d 15
Judges: Fox, Ney
Filed Date: 4/9/2015
Status: Precedential
Modified Date: 7/19/2022
¶ 1 In Part II, JUDGE FOX, joined by Judge Ney, concludes that the defendant's Miranda rights were violated during his custodial interrogation and the statements he made during the interrogation were erroneously admitted at trial.
¶ 2 In Part III, JUDGE FOX, joined in part by Judge Ney as to the unlawful distribution of a controlled substance only, concludes that the error, however, does not warrant *17reversal because it was harmless beyond a reasonable doubt.
¶ 3 In Part IV, JUDGE FOX, joined by Judge J. Jones, addresses and rejects the defendant's contention that the district court erred by allowing the jury unfettered access to defendant's videotaped interrogation.
¶ 4 JUDGE J. JONES specially concurs in the judgment. Judge J. Jones disagrees with the majority's reasoning in Parts II and III because he is of the view that the defendant's Miranda contention is unpreserved and should not, therefore, be addressed.
¶ 5 JUDGE NEY concurs in part and dissents in part. Judge Ney concurs with the majority's reasoning and conclusion in Part II. Judge Ney also concurs with Part III's conclusion that the error was harmless beyond a reasonable doubt as to the defendant's conviction for unlawful distribution of a controlled substance. However, Judge Ney dissents from Part III's conclusion that the error was harmless as to defendant's convictions for conspiracy to commit first degree murder and intimidating a witness. Judge Ney would therefore reverse those convictions. Judge Ney would not address the issue in Part IV.
Opinion by JUDGE FOX.
¶ 6 Defendant, Parrish Ramon Carter, appeals his judgment of conviction, entered on jury verdicts, for conspiracy to commit first degree murder, intimidating a witness, and unlawful distribution of a controlled substance. One of Carter's contentions presents an issue of first impression in Colorado: whether a warning to a custodial suspect that he has "the right to have an attorney," without more, adequately informs him of his right, under Miranda v. Arizona,
I. Background
¶ 7 In the summer of 2004, Robert Ray and Sir Mario Owens attended an annual barbecue and rap festival. A fight broke out in the parking lot, and, during the conflict, Owens shot and killed an individual who attempted to break up the fight. In addition, Ray shot and injured Javad Marshall-Fields and another person. After the shooting, Ray and Owens fled in Ray's car.
¶ 8 Ray and Owens were charged in connection with the homicide. Marshall-Fields was the only cooperating witness to identify Ray as a shooter and was scheduled to testify against him.
¶ 9 About one year after the shooting, Ray, Owens, and Carter recognized Marshall-Fields's truck parked outside of a sports bar. Owens instructed Carter to approach Marshall-Fields inside and discourage him from testifying-either by offering him money or threatening him. Carter entered the sports bar and spoke to Marshall-Fields.
¶ 10 The following night, Marshall-Fields and his fiancée were shot and killed in their car by the occupants of a passing vehicle.
¶ 11 After the shooting, Marshall-Fields's friends told the police about the incident at the sports bar. The police received surveillance camera footage from the bar, identified Carter as the man who spoke to Marshall-Fields, and obtained a warrant for his arrest. After Carter's arrest, he was interrogated, outside the presence of an attorney, and a video recording of that interrogation was introduced at trial.
¶ 12 Carter was charged by indictment with first degree murder of Marshall-Fields and his fiancée, bribing a witness, conspiracy to commit first degree murder, intimidation of a witness, and unlawful distribution of a controlled substance.
¶ 13 A jury acquitted Carter of first degree murder and bribing a witness but convicted him of the remaining charges. The court sentenced Carter to Department of Corrections custody for a term of forty-eight years for conspiracy to commit first degree murder, twelve years for intimidating a witness, and ten years for distribution of a controlled substance, all to be served consecutively.
II. The Miranda Advisement
¶ 14 Carter contends that the district court erred in admitting, over his objection, evidence *18of his videotaped interrogation because the police failed to adequately advise Carter of his Miranda right to have a lawyer present. We agree and conclude that a warning, which provides that a custodial suspect has "the right to have an attorney" without more, does not adequately inform a suspect of his right to the presence of an attorney before and during the interrogation. However, we also conclude that the court's error does not warrant reversal because the admission of the evidence was harmless beyond a reasonable doubt as to the unlawful distribution charge.
A. Additional Background
¶ 15 After Carter was arrested, a police officer and the lead Aurora detective in the murder investigation interrogated him.
¶ 16 Before the detective began asking Carter questions, she advised him as follows
Since you're in custody, before I can even talk to you I have to do the formal little rights things, okay? So you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney. If you cannot afford to hire a[n] attorney, one will be appointed to you without cost. Do you understand those?
The advisement took approximately ten to fifteen seconds. Carter nodded and made a sound indicating that he understood.
¶ 17 At the time of Carter's interrogation, the police department had a standard Miranda advisement form that officers could use at their discretion and have the suspect sign. One portion of this written form stated, "You have the right to talk to a lawyer and have him present with you while you are being questioned."
¶ 18 The detective who interrogated Carter previously used the form to inform suspects of their Miranda rights. However, about a year before Carter's interrogation, she attended a police seminar on the principles of interviews and interrogation. At that conference, a speaker presented PowerPoint slides instructing officers to " '[m]inimize' the impact of Miranda on the interview" by introducing the Miranda warning with statements such as "You've seen T.V., they make me do this ..." and "I think other people may be lying but before I can ask you if they are...." After the conference, the detective stopped using the standard written form.
¶ 19 During Carter's interrogation, the police officer and the detective asked him questions about his family, his acquaintances, and threatening Marshall-Fields inside the sports bar. When the officers showed Carter a surveillance photo of a man at the bar with Marshall-Fields, he identified himself as that man. Carter also admitted that he was in the sports bar for ten to fifteen minutes and talked to Marshall-Fields, but he denied that he threatened anyone. Carter gave inconsistent and incomplete answers during his interrogation.
¶ 20 The interview lasted for approximately two hours, until Carter stated, "I just got to get me a lawyer." The entire interview was video recorded.
¶ 21 Before his trial, Carter filed a motion to suppress evidence of the videotaped interrogation. Following multiple hearings on the issue, the district court denied Carter's motion and admitted the recording, concluding that the detective advised Carter of "the four Miranda rights, which are required to be given." The court added
[A] police officer can minimize the Miranda advisement and not violate the constitutional requirement.
[The detective] ... said, "Before I can talk to you," and then gave him the four rights, I do find that she did minimize. I do find that the [advisement provided] to [Carter] were perfunctory in that they were the four rights. They were adequate but they were perfunctory.
B. Standard of Review and Preservation
¶ 22 Review of a court's denial of a motion to suppress evidence based on an inadequate Miranda advisement presents mixed questions of fact and law.
*19People v. Aguilar-Ramos,
¶ 23 Carter preserved this issue for appeal by filing a motion to suppress and further arguing in support of his motion at the motion's hearing. See People v. Jansen,
¶ 24 At the motion's hearing, Carter's counsel further specified the inadequate nature of the advisement when he questioned the detective who interrogated Carter. Counsel asked the detective about (1) her decision not to use the portion of the standard advisement form that referenced Carter's right to have an attorney "present with [him] while [he's] being questioned" and (2) her failure to advise Carter, before interrogating him, that he could "decide at any time to exercise [his Miranda ] rights." See CRE 103(a)(1) (A timely objection or motion must state the specific ground of the objection if "the specific ground was not apparent from context.").
C. Governing Legal Principles
¶ 25 The Fifth Amendment to the United States Constitution provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself."
¶ 26 Almost fifty years ago, the United States Supreme Court held that a suspect in custody must be advised of his rights under the Fifth and Fourteenth Amendments before being interrogated. Miranda,
¶ 27 If a suspect in custody does not receive an adequate Miranda warning, any statement made during the interrogation may not be used by the prosecution at trial. Sanchez v. People,
¶ 28 To be adequate, the advisement must inform the suspect that he "[1] has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Miranda,
¶ 29 The third warning, the absence of which is the primary issue in this case, requires that a suspect "be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation."
¶ 30 The Miranda warning need not "be given in the exact form described in [the Miranda ] decision," and we need not examine the words employed "as if construing a *20will or defining the terms of an easement." Duckworth v. Eagan,
¶ 31 The United States Supreme Court has regularly reinforced the principle that a suspect must be informed that he has the right to the presence of an attorney during interrogation. See, e.g., California v. Prysock,
¶ 32 In its most recent decision addressing the adequacy of a Miranda warning, the Supreme Court reiterated that such warnings must inform the suspect that the right to an attorney attaches before and during an interrogation. See Powell ,
¶ 33 Consistent with these cases, the Colorado Supreme Court has likewise required that a suspect in custody be informed of his right to have an attorney present before questioning begins. See People v. Carrion,
¶ 34 No appellate decision in this jurisdiction has ever addressed the specific question of whether the statement that a custodial suspect has "the right to have an attorney," without more, adequately informs the suspect of his right to have an attorney present before and during an interrogation. Other jurisdictions have arrived at differing conclusions regarding this question.
¶ 35 Federal circuits disagree about how detailed this particular Miranda warning must be to adequately protect a suspect's rights. Compare United States v. Dire,
¶ 36 While recognizing that there is "no talismanic incantation" under Miranda, Prysock,
D. Analysis
¶ 37 In accordance with these principles, we conclude that Carter's Miranda rights were violated. See
¶ 38 First, the statement did not reasonably convey to Carter that he had the right to an attorney during his interrogation because it contained "no temporal element and could be construed as meaning sometime after questioning or during trial." Adam S. Bazelon, Comment, Adding (or Reaffirming) a Temporal Element to the Miranda Warning "You Have the Right to an Attorney, "
¶ 39 Second, the detective did not combine her warning with any other statement that would have indicated that the right to an attorney began before, and continued throughout, Carter's interrogation.
¶ 40 Third, Carter could not have reasonably inferred that his right to an attorney attached before and during interrogation. To the contrary, the detective's advisement, when read in context, could just as well have misled Carter to believe that he was entitled to counsel only at some future court proceeding. The detective's warning of the right to an attorney was immediately preceded by the advisement that anything Carter said "can and will be used against [him] in a court of law" and immediately succeeded by the advisement that if he could not afford an attorney, one "will be appointed to you without cost." The preceding statement related to a later court proceeding and the succeeding statement implied the future appointment of an attorney. See, e.g., Atwell v. United States,
¶ 41 The need for a clear Miranda warning is particularly important where law enforcement officers intentionally downplay the significance of the Miranda rights by de-emphasizing their importance. This is so because Miranda "established a number of prophylactic rights designed to counteract the 'inherently compelling pressures' of custodial interrogation," McNeil v. Wisconsin,
¶ 42 The People argue that Carter's previous experience with law enforcement and his invocation of his right to counsel after two hours of questioning established that he understood his right to have an attorney with him during the interrogation. We disagree.
¶ 43 Miranda,
¶ 44 We also disagree with the People's contention that Carter voluntarily, knowingly, and intelligently waived his Miranda rights. "No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the [ Miranda warnings] have been given." Miranda,
¶ 45 Because Carter did not receive an adequate Miranda advisement, the statements he made during the course of his custodial interrogation should not have been admitted at trial. See id . at 444,
III. Harmless Error
¶ 46 Even though we conclude that the district court erroneously admitted Carter's statements, we
¶ 47 We review perceived errors of constitutional dimension that were preserved by objection for constitutional harmless error. Id ."These errors require reversal unless the reviewing court is 'able to declare a belief that [the error] was harmless beyond a reasonable doubt.' "
¶ 48 Because Carter never confessed-and did not otherwise incriminate himself-during the interview, Judge Fox concludes that the admission of his videotaped interview was ultimately harmless beyond a reasonable doubt and did not affect the outcome of the trial. See Crim. P. 52(a) ; People v. Frye,
¶ 49 Various factors guide this analysis, including " 'the importance of the witness' testimony to the prosecution's case, whether the testimony was cumulative, the presence or absence of corroborating or contradictory evidence on the material points of the witness' testimony, the extent of the cross-examination otherwise permitted, and the overall strength of the prosecution's case.' " Raile,
¶ 50 The jury acquitted Carter of first degree murder, but convicted him of conspiracy to commit first degree murder, intimidating a witness, and unlawful distribution of a controlled substance. The prosecution's overarching theory of the case was that Carter offered or agreed to assist Ray in intimidating, and if necessary, silencing Marshall-Fields, an eyewitness to a 2004 homicide attributed to Ray. The videotaped interview does nothing to confirm that theory. Accordingly, the videotape did nothing to prove the prosecution's theory of guilt.
¶ 51 In contrast, the People presented ample other evidence tying Carter to the charged crimes. For example, the surveillance camera from the sports bar that Marshall-Fields patronized the evening before he was shot and killed documented Carter speaking with him. Marshall-Fields's friends also witnessed the exchange and reported it to law enforcement authorities. The prosecution offered ample evidence-including Carter's later statements to cellmates-proving Carter's involvement in the conspiracy and the actions he took to intimidate Marshall-Fields. Thus, the police interrogation was unnecessary to the prosecution's case and duplicated other evidence presented during trial.
¶ 52 Given the record here, Judge Fox concludes that any error in the Miranda advisement that preceded Carter's police interview cannot serve as a basis to reverse Carter's conviction. See Raile,
IV. Jury's Access to the Videotaped Interrogation
¶ 53 Carter also contends that the district court erred in allowing the jury to have unfettered access to the video recording of his interrogation. We are not persuaded.
¶ 54 Carter's counsel argued, outside the presence of the jury, that the jury should have only supervised access to the video of Carter's interrogation and objected to giving the jury unfettered access to the transcription of the videotape. The prosecution, in turn, responded that the videotaped interrogation contained Carter's own statements and those statements were non-testimonial. Accordingly, the prosecution argued that DeBella v. People,
¶ 55 After hearing extensive argument by both sides and reviewing then-available case law, the district court allowed the jury to access the video recording (and the equipment to play that recording). The court did not, however, initially allow the jury to also have the transcript of the recording. Rather, it indicated it would rule on the transcript issue if the jury requested access after viewing the video recording.
¶ 56 Consistent with the rationale in People v. Gingles,
¶ 57 Counsel's contention, during oral argument, that the videotaped interview was not a "confession" since Carter never admitted to the crimes at issue does not persuade us to disavow Gingles here. Whether the recorded statements inculpate or exculpate a defendant, the fairness-because they are Carter's own words and because they can help the jury assess Carter's credibility (or lack thereof)-in allowing their use is the same.
¶ 58 Absent the Miranda violation, the videotape would have been admissible. See, e.g., *24People v. Meier,
V. Conclusion
¶ 59 The judgment is affirmed.
JUDGE J. JONES specially concurs in the judgment.
JUDGE NEY
J. JONES, J., specially concurring in the judgment.
¶ 60 I agree with Judge Fox's analysis rejecting defendant's contention that the district court erred by allowing the jury unfettered access to defendant's videotaped interview with the police. And though I agree with Judge Fox that the judgment of conviction should be affirmed, I write separately because I would reject defendant's contention that the district court erred in denying his motion to suppress. I respectfully disagree with Judges Fox and Ney that defendant preserved his argument that the detective's Miranda advisement was inadequate because the detective failed to advise him that he could speak with an attorney before the interview and have an attorney with him during the interview. Defendant never raised that issue in the district court and the district court never ruled on it.
¶ 61 With respect to the adequacy of the advisement, defendant's written motion to suppress said, in full: "The Miranda advisement was completely inadequate. It was less than perfunctory. There was no written advisement." In its written response to defendant's motion, the prosecution pointed out that the detective had given defendant all four warnings required by Miranda, including "that he has the right to the presence of an attorney." Defendant never challenged that assertion.
¶ 62 At the hearing on defendant's motion, defendant's attorney argued that the advisement was inadequate because "it was less than perfunctory." She argued that the detective "did not give [defendant] a written advisement of rights," the advisement "took a total of 15 seconds," "it took [the detective] 10 seconds to click off on her fingers the formal little rights thing," and the detective had "belittl[ed] the constitution" by saying the advisement was "just a formality." She did not argue, expressly or by clear implication, that the substance of any of the four warnings required by Miranda was incorrect or incomplete.
¶ 63 The district court's ruling on the motion dealt almost entirely with defendant's contention that he had not validly waived his rights, the issue which had consumed the vast majority of the hearing. In the course of its ruling, the district court said the detective had given defendant "the four Miranda rights, which are required to be given.... I do find that the rights as given to [defendant] were perfunctory in that they were the four rights. They were adequate but they were perfunctory."
¶ 64 Considered in context, the district court's ruling that the advisement was adequate can reasonably be understood only as a rejection of the arguments that defendant's counsel actually made, which were both specific and limited, and which did not include any assertion that the detective was required to advise defendant that he had the right to an attorney before and during the interview. As a rule, courts decide issues raised by the parties, not issues they could have, but did not, raise. The record simply does not support a conclusion that the district court in this instance ruled on an issue that defendant failed to raise.
¶ 65 Colorado case law is clear that if the defendant fails to raise a particular reason *25for suppression in the district court, he may not raise it on appeal. People v. Samuels,
Judge Fox would find the admission harmless beyond a reasonable doubt as to conspiracy to commit first degree murder and witness intimidation as well.
As explained more fully in Judge Ney's dissent, Judge Ney only agrees that the error was harmless as to Carter's conviction for unlawful distribution of a controlled substance, not his convictions for conspiracy to commit first degree murder and intimidating a witness.
Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2014.
The People's answer brief says that they "generally agree that the claim was preserved because the adequacy of the advisement was raised in the motion," but continues that "the defense did not specifically argue below that the advisement was inadequate for failing to make explicit the right to the presence of counsel during questioning." To the extent this ambiguous passage is intended as a concession regarding preservation, we are not bound by it. People v. Corral,