People v. Ferguson

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<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"> <HTML> <HEAD> <TITLE></TITLE> <META http-equiv="Content-Type" content="text/html; charset=UTF-8"> <META name="generator" content="pdftohtml 0.36"> <META name="author" content="JUD"> <META name="date" content="2010-03-22T08:01:47+00:00"> </HEAD> <BODY bgcolor="#A0A0A0" vlink="blue" link="blue"> Error : Bad color Error : Bad color <A name=1></a> <br> Opinions of the Colorado Supreme Court are available to the <br>public and can be accessed through the Court’s homepage at <br>http://www.courts.state.co.us/supct/supctcaseannctsindex.htm <br>and are posted on the Colorado Bar Association homepage at <br>www.cobar.org. <br> <br> ADVANCE SHEET HEADNOTE <br> March 22, 2010 <br> <b> </b><br> <b> </b><br> <b>No. 09SA375, People v. Ferguson: </b>Fifth Amendment -- Miranda <br>advisement -- voluntary, knowing, and intelligent waiver <br> <br> <br> The Colorado Supreme Court reverses the trial court’s order <br> suppressing the defendant’s statements because the defendant <br> made a voluntary, knowing, and intelligent waiver of his Fifth <br> Amendment Miranda rights prior to the statement. The supreme <br> court holds that the voluntary waiver test asks if there was <br> coercive government conduct, and the test for a knowing and <br> intelligent waiver weighs the totality of the circumstances <br> according to a multitude of factors. The trial court’s analysis <br> was flawed in both respects, so the supreme court reverses the <br> trial court’s order and holds that the defendant’s statements <br> given after validly waiving his Miranda rights are admissible. <b> </b><br> <br> <hr> <A name=2></a> <br> <br> <br> SUPREME COURT, STATE OF COLORADO <br> Case No. 09SA375 <br> Two East 14th Avenue <br> <br> Denver, Colorado 80203 <br> <br> <br>Interlocutory Appeal from the District Court <br>Mesa County District Court Case Nos. 08CR1617, <br>08CR1659, 08CR1679 <br>Honorable Brian J. Flynn, Judge <br> <br><b>Plaintiff-Appellant: <br></b> <br>The People of the State of Colorado, <br> <br>v. <br> <br><b>Defendant-Appellee: <br></b> <br>Lance Eugene Ferguson. <br> <br> <br> <br> ORDER REVERSED <br> EN BANC <br> March 22, 2010 <br> <br> <br>Pete Hautzinger, District Attorney, <br>Twenty-First Judicial District <br>Christopher Nerbonne, Deputy District Attorney <br> <br> Grand Junction, Colorado <br> <br> <br> Attorneys for Plaintiff-Appellant <br> <br>David Eisner Law <br>David G. Eisner <br> <br> Grand Junction, Colorado <br> <br> Attorney for Defendant-Appellee <br> <br> <br> <br> <br> <br>JUSTICE RICE delivered the Opinion of the Court. <br> <hr> <A name=3></a>In this interlocutory appeal pursuant to C.A.R. 4.1, we <br> review a Mesa County District Court order suppressing evidence <br> obtained from a police interrogation of the defendant-appellee <br> Lance Ferguson. We find that the trial court erred in <br> suppressing the evidence because Ferguson made a voluntary, <br> knowing, and intelligent waiver of his Miranda rights prior to <br> the interrogation. We therefore reverse the trial court's <br> order. <br> <b>I. Facts and Procedural History </b><br> <br> On the night of November 12, 2008, an officer on patrol <br> observed a white Isuzu driving with expired license tags. After <br> the officer pulled over the vehicle, the driver, who was later <br> identified as Ferguson, claimed that his name was Cody Newitt <br> and that he lacked proof of insurance, registration, and a <br> driver’s license on his person. The officer checked the name <br> Cody Newitt in his patrol car, and it came back without any <br> record. When the officer attempted to arrest him, Ferguson <br> resisted and fled the scene, losing the officer after a half-<br> mile chase through the surrounding area. <br> The officer returned to the scene and, in an attempt to <br> find identification, observed drug paraphernalia in plain view <br> and a wallet with multiple credit cards in various names. <br> Meanwhile, other officers found Ferguson hiding in the bushes in <br> 2 <br> <br> <hr> <A name=4></a>the area and brought him back to the scene. At this point, the <br> officer confirmed that Ferguson was the driver and placed him <br> under arrest. <br> At the booking area, the officer read Ferguson his Miranda <br> rights, which Ferguson said he understood. Ferguson initially <br> agreed to speak with the officer on a limited basis, but after <br> the officer began the questioning by showing Ferguson a picture <br> of the real Cody Newitt, Ferguson said he wished to consult an <br> attorney. The officer escorted Ferguson back to his cell <br> without further questioning. Shortly thereafter, staff at the <br> jail informed the officer that Ferguson had requested the <br> opportunity to speak to him. The trial court found on the <br> record that Ferguson initiated this conversation entirely of his <br> own volition. The officer briefly conversed with Ferguson, who <br> admitted his true identity. No further questioning occurred. <br> Two days later, Investigator Mike Piechota and his partner <br> initiated a formal interrogation of Ferguson while Ferguson was <br> still in custody. Ferguson stated upon entering the <br> interrogation room that “I don’t know that now’s a good time.” <br> He claimed to be having mental problems and that his mind was <br> “shuttering” due in part to withdrawal from methamphetamine, <br> which he had been using up until three days prior. He <br> repeatedly asked for mental help, stating that he should be in <br> 3 <br> <br> <hr> <A name=5></a>an asylum and that he could not stay indoors in the jail because <br> it was like a coffin. He also claimed that Investigator <br> Piechota could get him to admit to anything and that “I don’t <br> understand anything right now.” When asked if he could proceed <br> with the questioning, Ferguson said, “there’s a lot of static <br> around but I’ll try.” Ferguson, however, was outwardly calm, <br> collected, and rational, stating that “I want to talk to you” <br> and “I want to be very cooperative.” Nothing in his actions <br> evinced any debilitating mental problem or confusion at the <br> proceedings. <br> Most importantly, Ferguson stated at one point, “I do feel <br> like maybe there needs to be a lawyer or my mother here or <br> something.” Investigator Piechota responded that it was <br> entirely Ferguson’s decision whether to proceed with the <br> interrogation: “If you want to talk to us, that’s on you. If <br> you want to wait, that’s also on you. But you need to tell me <br> what you want to do.” Ferguson clearly responded, “I want to <br> talk to you; I do.” Then, after some brief discussion of <br> Ferguson’s drug problems, Investigator Piechota commented to <br> Ferguson that Ferguson seemed “pretty coherent” and seemed to be <br> “understanding the questions,” to which Ferguson agreed. <br> Ferguson then asked if Investigator Piechota could get him some <br> “mental health,” and Investigator Piechota agreed to try before <br> 4 <br> <br> <hr> <A name=6></a>immediately beginning a detailed explanation of his Miranda <br> rights. After asking Investigator Piechota not to “use” him, <br> Ferguson signed a form listing his Miranda rights while <br> Investigator Piechota again emphasized that Ferguson could stop <br> the questioning at any time. <br> Ferguson’s actions throughout the nearly two hours of <br> questioning were somewhat nervous and jittery, but he appeared <br> composed and in full control at all times. He answered <br> questions calmly, rationally, and without ever losing his focus <br> or train of thought, and he admitted his criminal acts prompting <br> the current incarceration. He broke down at one point, <br> confessing his wrongs and recognizing that he had let down <br> everyone, especially his mother. He also stated that he would <br> fear for his personal safety in jail because of what he had <br> done. He repeatedly expressed regret for his actions, <br> acknowledging his many prior felonies and stressing the theme <br> that he needed professional help to end his drug addiction. <br> Prior to trial, Ferguson moved to suppress the evidence and <br> statements, and the trial court held a hearing, heard from <br> witnesses, and admitted the interrogation video into evidence. <br> After reviewing Miranda law, the court wrote: <br> Here, the Court finds that the prosecution has <br> failed to meet its burden of showing that the <br>defendant made a knowing, intelligent and voluntary <br>decision to waive his Miranda rights given the <br> 5 <br> <br> <hr> <A name=7></a>defendant’s clearly expressed need for help with the <br>mental health issues and that from the moment he sat <br>down he began telling investigators of his impaired <br>ability to understand what was taking place. The <br>Court also finds that coercive governmental conduct <br>played a significant role in inducing the defendant to <br>make a statement. The Court therefore finds that the <br>defendant did not knowingly, voluntarily and <br>intelligently waive his rights pursuant to Miranda and <br>orders the use of statements he made to investigators <br>on November 14, 2008 suppressed. <br> <br> The State brought this interlocutory appeal. <br> <b>II. Analysis </b><br> <b>A. The Standard of Review and Miranda Law </b><br> <br> In a motion to suppress evidence, the trial court must find <br> facts and apply the law. People v. Platt, 81 P.3d 1060, 1065 <br> (Colo. 2004); People v. Kaiser, 32 P.3d 480, 483 (Colo. 2001); <br> People v. Gennings, 808 P.2d 839, 844 (Colo. 1991). We defer to <br> the trial court’s findings of fact unless they are clearly <br> erroneous or unsupported by the record. Platt, 81 P.3d at 1065; <br> Kaiser, 32 P.3d at 483. However, “whether the trial court <br> applied the correct legal standard to the facts established by <br> the record is a mixed question of fact and law we review de <br> novo.” Platt, 81 P.3d at 1065 (“[A] trial court may not reach <br> legal conclusions that are not supported by the record.”). <br> Hence, we defer to the trial court’s finding of facts in the <br> record but review all legal conclusions de novo, including the <br> application of legal factors to the facts of the case. <br> 6 <br> <br> <hr> <A name=8></a> <br> Prior to a custodial interrogation, the Fifth Amendment <br> requires that the police give a Miranda advisement to inform the <br> defendant of his constitutional rights. Miranda v. Arizona, 384 <br> U.S. 436, 444 (1966). “Suspects can waive their rights upon <br> receiving a proper Miranda advisement; however, in order to be <br> valid, the waiver must be voluntary, knowing, and intelligent.” <br> Platt, 81 P.3d at 1065; Miranda, 384 U.S. at 444. We have <br> previously analyzed the validity of a waiver in two parts, <br> asking first whether the waiver was voluntary and free of <br> governmental coercion and second whether it was knowingly made <br> with full awareness of the nature and consequences of the right. <br> See Platt, 81 P.3d at 1065; People v. May, 859 P.2d 879, 882 <br> (Colo. 1993);1 People v. Hopkins, 774 P.2d 849, 851 (Colo. 1989). <br> The State has the burden to prove the validity of the <br> defendant’s waiver by a preponderance of the evidence. Colorado <br> v. Connelly, 479 U.S. 157, 168 (1986). <br> <br>1 The May court actually included both elements of the analysis <br>-- coercion and knowing -- under the general heading of <br>voluntariness, which tends to confuse the analysis. Compare <br>May, 859 P.2d at 883 (“To determine the validity of a waiver, a <br>court must address the two separate dimensions of voluntariness: <br>first is the presence or absence of coercion, which primarily <br>concerns the effect of police conduct, and second is the knowing <br>and intelligent action on the part of the person being <br>interrogated.”) with Platt, 81 P.3d at 1065 (distinguishing <br>between the “voluntary” and “knowing and intelligent” elements). <br>This is merely a semantic distinction, and this discussion <br>employs the term voluntary to describe only an absence of <br>coercion -- the first of the two elements. <br> 7 <br> <br> <hr> <A name=9></a> <br> In this case, we agree with the trial court that Ferguson <br> was in custody, so Miranda applies. We also agree with the <br> trial court that, because Ferguson volitionally initiated <br> conversation with the arresting officer after invoking his <br> Miranda rights on the night of the arrest, he validly waived his <br> rights. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (“[A]n <br> accused, . . . having expressed his desire to deal with the <br> police only through counsel, is not subject to further <br> interrogation by the authorities until counsel has been made <br> available to him, unless the accused himself initiates further <br> communication, exchanges, or conversations with the police.”); <br> Maryland v. Shatzer, No. 08-680, slip op. at 5 (U.S. Feb. 24, <br> 2010) (endorsing and further defining the Edwards rule).2 <br> With respect to Ferguson’s statements to Investigator <br> Piechota two days after the arrest, however, we reverse the <br> trial court. We disagree with the trial court’s ruling that <br> “coercive government conduct played a significant role in <br> inducing the defendant to make a statement,” because the trial <br> court provides no explanation of its reasoning and there are no <br> <br>2 This first finding of waiver on the night of the arrest is not <br>in contention on appeal. In addition, we note that because <br>there was a valid Miranda waiver initiated by the defendant on <br>the night of the arrest, the Supreme Court’s rule in Shatzer <br>creating a fourteen-day period after which police may reinitiate <br>questioning of a defendant does not apply. Shatzer, No. 08-680, <br>slip op. at 11-13. <br> 8 <br> <br> <hr> <A name=10></a>examples in the record of coercive conduct. We also disagree <br> with the trial court’s ruling that, although Ferguson signed a <br> printed form waiving his rights, the waiver was not knowing or <br> intelligent because Ferguson was not mentally sound at the time. <br> The trial court failed to engage in the proper totality of the <br> circumstances analysis appropriate to the knowing element of a <br> Miranda waiver. We discuss each error in turn. <br> <b>B. The Voluntary Element </b><br> “A <br> Miranda waiver is considered voluntary unless ‘coercive <br> governmental conduct -- whether physical or psychological --<br> played a significant role in inducing the defendant to make the <br> confession or statement.’” Platt, 81 P.3d at 1065 (quoting May, <br> 859 P.2d at 883); Connelly, 479 U.S. at 170 (“The voluntariness <br> of a waiver of this [Fifth Amendment] privilege has always <br> depended on the absence of police overreaching, not on ‘free <br> choice’ in any broader sense of the word.”). Voluntariness is <br> an objective inquiry reviewing the record for outwardly coercive <br> police action, not a subjective analysis attempting to <br> arbitrarily surmise whether the defendant perceived some form of <br> coercive influence. See Connelly, 479 U.S. at 169-71. The <br> appellate court must reverse the trial court on this element if <br> “the record is devoid of any suggestion that police resorted to <br> physical or psychological pressure to elicit the statements.” <br> 9 <br> <br> <hr> <A name=11></a>Moran v. Burbine, 475 U.S. 412, 421 (1986); see also People v. <br> Jordan, 891 P.2d 1010, 1015-16 (Colo. 1995). Hence, we review <br> the record, which includes a video of the entire interrogation,3 <br> for an instance of physical or psychological coercion on the <br> part of the government. We find none. <br> <br> Ferguson began the interrogation complaining of poor mental <br> health, but Investigator Piechota did nothing to exacerbate or <br> exploit this problem. Instead, Investigator Piechota <br> consistently emphasized that Ferguson was under no obligation to <br> speak to him at that moment and that the decision to continue <br> was entirely Ferguson’s. Although Investigator Piechota did <br> offer to help Ferguson “get some mental health,” he in no way <br> made or implied a quid pro quo arrangement forcing statements in <br> exchange for future medical aide. Also, any potential residual <br> intoxication remaining from Ferguson’s methamphetamine use falls <br> under the intelligent and knowing element because it was not <br> induced by the government. Platt, 81 P.3d at 1066. Because the <br> trial court’s finding of coercion is not supported in the <br> record, we reverse it. <br> <br>3 We have previously noted that a video of a Miranda advisement <br>“enables us to undertake this review not just from the ‘cold <br>record,’ but -- at least in part -- in precisely the same manner <br>as the trial court.” People v. Al-Yousif, 49 P.3d 1165, 1172 <br>(Colo. 2002); see also Platt, 81 P.3d at 1067 (“We are in the <br>same position as the trial court to review these recorded <br>statements.”). <br> 10 <br> <br> <hr> <A name=12></a><b>C. The Knowing and Intelligent Element </b><br> <br> “A waiver is knowing and intelligent when made with full <br> awareness of the nature of the right being abandoned and the <br> consequences of the decision to abandon it.” Id. at 1065; <br> Hopkins, 774 P.2d at 851. This is a totality of the <br> circumstances analysis depending on a number of factors, none of <br> which is independently determinative. Platt, 81 P.3d at 1065; <br> Kaiser, 32 P.3d at 484. We have observed: <br> In assessing the validity of a Miranda waiver, factors <br>a court may consider include, but are not limited to, <br>the following: the time interval between the initial <br>Miranda advisement and any subsequent interrogation; <br>whether and to what extent the interrogating officer <br>reminded the defendant of his or her rights prior to <br>the interrogation by asking if the defendant recalled <br>his or her rights, understood them, or wanted an <br>attorney; the clarity and form of the defendant’s <br>acknowledgement and waiver, if any; the background and <br>experience of the defendant in connection with the <br>criminal justice system; the defendant’s age, <br>experience, education, background, and intelligence; <br>and whether the defendant has any language barrier in <br>understanding the advisement. <br> <br> Platt, 81 P.3d at 1065-66 (citing Kaiser, 32 P.3d at 484). <br> In Platt, we also included mental competence or <br> intoxication as another factor, providing another set of <br> subfactors to guide this inquiry. These subfactors include: <br> whether the defendant seemed oriented to his or her <br>surroundings and situation; whether the defendant’s <br>answers were responsive and appeared to be the product <br>of a rational thought process; whether the defendant <br>was able to appreciate the seriousness of his or her <br>predicament, including the possibility of being <br> 11 <br> <br> <hr> <A name=13></a>incarcerated; whether the defendant had the foresight <br>to attempt to deceive the police in hopes of avoiding <br>prosecution; whether the defendant expressed remorse <br>for his or her actions; and whether the defendant <br>expressly stated that he or she understood their <br>rights. <br> <br> Platt, 81 P.3d at 1066 (citing Kaiser, 32 P.3d at 484; Al-<br> Yousif, 49 P.3d at 1172; Jordan, 891 P.2d at 1015-16). <br> <br> We apply the general knowing and intelligent factors to <br> this case, beginning with the time between the Miranda <br> advisement and the interrogation. Here, there were two <br> advisements -- one on the night of the arrest and another <br> immediately before the formal interrogation. Police issued both <br> of these advisements in close proximity to Ferguson’s statement, <br> with the written waiver immediately preceding it. Second, <br> Investigator Piechota stressed the fact that the decision to <br> give a statement was entirely Ferguson’s, reminding him of his <br> rights before any waiver occured. Third, the clarity of the <br> waiver was sufficient because Ferguson had two days to consider <br> his rights after the first Miranda advisement, was again told <br> his rights by Investigator Piechota, was provided with a printed <br> copy of his rights, and then signed the waiver in two places. <br> Fourth, Ferguson had experience with the criminal justice system <br> based on his prior felonies, so the concepts of personal rights <br> and incarceration were not foreign to him. Fifth, the video <br> evidence demonstrates that Ferguson was of at least normal <br> 12 <br> <br> <hr> <A name=14></a>intelligence based on his ability to understand questioning, <br> respond lucidly, and describe his criminal acts to Investigator <br> Piechota. Finally, there was no language barrier as Ferguson is <br> a native English speaker. All of these general factors militate <br> in favor of a valid waiver, but the trial court considered none <br> of them in its suppression order. <br> <br> The trial court based its order entirely on the mental <br> competency factor, but even this factor indicates a valid <br> waiver. Taking its subfactors individually, we begin by <br> observing in the video statement that Ferguson seemed perfectly <br> aware of his surroundings and the situation, commenting that “I <br> want to talk to you” and “I want to be very cooperative.” Next, <br> Ferguson rationally responded to Investigator Piechota’s <br> questioning for nearly two hours without ever becoming <br> disengaged from or confused by the interrogation. There were no <br> signs of any residual intoxication from his methamphetamine use <br> three days prior. Third, Ferguson ostensibly appreciated the <br> seriousness of the charges, breaking down at one point and <br> saying that he had let down everyone with his actions. He also <br> noted that he would have to fear for his physical safety in jail <br> because he had angered certain groups, demonstrating an <br> appreciation that the actions to which he was currently <br> admitting would result in jail time. Fourth, although there <br> 13 <br> <br> <hr> <A name=15></a>were no obvious attempts at deception from Ferguson, he did <br> display an awareness that his statements were part of a criminal <br> investigation that could implicate others, frequently commenting <br> that certain people or friends were not involved or should not <br> be brought into the investigation. Fifth, Ferguson expressed <br> considerable remorse throughout the nearly two hours, breaking <br> down multiple times to express regret for his actions. Finally, <br> when Investigator Piechota commented that Ferguson appeared to <br> understand the proceedings, Ferguson readily agreed. Moreover, <br> Ferguson signed a waiver that expressly stated that he <br> understood his rights. <br> <br> Although statements like “I don’t know that now’s a good <br> time” and “I don’t understand anything right now” cast doubt <br> upon the knowing and intelligent element, those statements do <br> not form the entirety of our analysis. Instead, we apply the <br> aforementioned legal factors to the record and reach a <br> conclusion based on the totality of the circumstances. The <br> trial court failed to apply the full test for a knowing and <br> intelligent waiver, entirely omitting the totality of the <br> circumstances analysis. Based on the record, we find that the <br> totality of the circumstances indicates that Ferguson was given <br> the Miranda advisement twice during custody; was both read and <br> given a printed copy of the advisement immediately preceding the <br> 14 <br> <br> <hr> <A name=16></a>interrogation; had the choice whether to continue clearly <br> presented to him; had experience with the criminal justice <br> system; was intelligent enough to understand his rights; <br> understood English; was aware of his surroundings and the <br> situation; provided rational, lucid answers to the questioning; <br> appreciated the charges and their consequences; expressed <br> reasonable remorse for his actions; and was not the subject of <br> any police coercion. Therefore, we reverse the trial court’s <br> ruling that Ferguson’s waiver was not knowing and intelligent. <br> <b>III. Conclusion </b><br> <br> We hold that Ferguson validly waived his Fifth Amendment <br> Miranda rights because the waiver was voluntary, knowing, and <br> intelligent. We reverse the trial court’s suppression order <br> regarding all statements made on November 14, 2008. <br> <br> 15 <br> <br> <hr> </BODY> </HTML>