Interlocutory Appeal from the District Court. El Paso County District Court Case No. 13CR436. Honorable Barney Iuppa, Judge.
In this interlocutory appeal, the People seek review of the trial court's order suppressing inculpatory statements of the defendant. The trial court found that the defendant did not make the statements voluntarily. The supreme court holds that, when considering the totality of the circumstances, the police did not improperly coerce the defendant into making the statements but that he instead spoke voluntarily. Accordingly, the supreme court reverses the trial court's suppression order and remands the matter to the trial court.
Plaintiff-Appellant: Daniel Howard May, District Attorney, Fourth Judicial
District, Christopher Alexander Sutton, Deputy District Attorney, Doyle Jon
Baker, Senior Deputy District Attorney, Colorado Springs, Colorado.
Attorneys for Defendant-Appellee: Kelly M. McCullough, Deputy State Public Defender, Colorado Springs, Colorado.
[¶1] In this interlocutory appeal pursuant to C.A.R. 4.1, the People seek review of the trial court's order suppressing inculpatory statements of the Defendant-Appellee, Jay Carwile McIntyre. The trial court found that McIntyre did not make the statements voluntarily. We hold that, when considering the totality of the circumstances, the police did not improperly coerce McIntyre into making the statements but that he instead spoke voluntarily. Accordingly, we reverse the trial court's suppression order and remand the
matter to the trial court for proceedings consistent with this opinion.
I. Facts and Procedural History
[¶2] In 2012, McIntyre's niece, J.M., accused him of sexually assaulting her on two separate occasions in 2007, when she was 10 years old. Specifically, J.M. alleged that McIntyre sat behind her while helping her with her homework and placed his hands on her stomach, then moved his hands up to her breasts and massaged her breasts through her clothing. J.M. further alleged that, some time later, McIntyre touched her posterior, ran his hand down between her legs, and rubbed her vagina over her clothes.
[¶3] After the police contacted him, McIntyre appeared for a scheduled interview with Detective Otto at the El Paso County Sheriff's Department. At the outset of the interview, Detective Otto read McIntyre Miranda warnings and informed him that he could stop answering her questions at any time; she then showed him that the door was unlocked. Detective Otto proceeded to speak with McIntyre for roughly 44 minutes. Her tone was cordial throughout, and McIntyre appeared lucid and alert. He repeatedly stated that he was " flabbergasted" by J.M.'s allegations and that he remembered no such incidents. He specifically indicated that it was unlikely that he would have helped J.M. with her homework because he is dyslexic and reads at a fourth-grade level. He acknowledged, however, that he was using both marijuana and " speed" (methamphetamine) virtually every day at the time of the alleged misconduct and that the drugs could have damaged his memory. At the conclusion of the interview, Detective Otto asked if McIntyre would be willing to take a lie detector test, and McIntyre agreed without hesitation.
[¶4] One week later, McIntyre returned to the sheriff's department to take the lie detector test, which was to be administered by Deputy Porter. Prior to administering the test, Deputy Porter spoke with McIntyre for roughly 25 minutes. As with Detective Otto, Deputy Porter's tone was conversational, and McIntyre exhibited no signs of distress. Deputy Porter showed McIntyre that the door was unlocked, told him that he was free to leave at any time, and read him Miranda warnings. He also stated that " the results of the exam can't be used in court unless you want them to be." McIntyre then initialed and signed a consent form for the test.
[¶5] Deputy Porter next told McIntyre that before beginning the test, he wanted to consult with him in order to properly formulate the questions. To illustrate this process, he relayed an anecdote regarding a lie detector test that he had conducted with a college student accused of dealing drugs. When Deputy Porter asked the student, " Have you ever distributed narcotics?" the student said " no" and failed the test. Deputy Porter then spoke with the student, who admitted that he had bought marijuana and given it to his friends but asserted that he " never made a dime." Deputy Porter then rephrased the question to, " Have you ever distributed narcotics for a profit?" and the student said " no" and passed. As a result of the revised question, the police did not prosecute the student because they determined that, although he used marijuana recreationally, he was not a " drug dealer" in the criminal sense.
[¶6] Turning to the particulars of McIntyre's case, Deputy Porter emphasized the importance of crafting appropriate questions regarding McIntyre's alleged sexual misconduct. Deputy Porter first posed a hypothetical in which the police had accused a father of molesting his 18-month-old daughter. He explained that if he asked the father, " Have you ever touched your daughter's vagina?" he would likely be compelled to answer " yes," meaning a superior question would be, " Have you touched your daughter's vagina for sexual gratification?" Deputy Porter then asked McIntyre, " Is there any part of this exam that will show that you touched your niece's breasts or vagina for sexual gratification?" McIntyre responded, " I do not believe so. I don't recall doing any of this." McIntyre again confirmed that he was
using marijuana and methamphetamine at the time.
[¶7] Deputy Porter then said to McIntyre, " Here's my concern. These exams are extremely expensive. . . . You're not gonna have to pay for that, unless, eventually if they determine that your niece is telling the truth, they'll come after you for all the legal fees and all that stuff." Shortly thereafter, Deputy Porter reiterated this concern, saying, " I don't want you to go down the rabbit hole of me turning this machine on, incurring the cost of what I charge this department for this exam."
[¶8] Deputy Porter and McIntyre then discussed the goals of the sheriff's department in sexual assault cases. Deputy Porter stated, " In today's world . . . when we have somebody . . . especially if they were the victim of an addiction . . . our goal is often rehabilitation." After confirming that McIntyre had a spotless criminal background, Deputy Porter repeated, " Our goal isn't to destroy a life. Our goal isn't to ruin a life." Deputy Porter then qualified his legal authority over McIntyre's case, stating, " I can make no legal promises or anything like that, but I know Detective Otto. . . . She's a good person, and she's all about . . . trying to get people the help they need."
[¶9] Deputy Porter then asked McIntyre if he knew how the subconscious worked. McIntyre answered, " Kind of. That's what I'm thinking. I'm thinking it might be subconscious. I might remember it." Deputy Porter suggested that McIntyre had suppressed his memory of the incidents, stating, " I think that you have a memory of something that you're embarrassed about, but it seems to me like you're the kind of person that would be willing to get some help." McIntyre responded, " That's what I want. If I did do it, I want some help."
[¶10] Continuing in a cordial tone, Deputy Porter said, " This conversation's between us. I'm not the detective working your case." He then encouraged McIntyre to reveal what he remembered:
Before this [test] starts, tell me what you think you remember, 'cause I think you do. Don't bullshit me . . . . I honestly think that, with a guy like you with a clean record, I can give [Detective Otto] a call. . . . You'll walk out of here, I'll talk to [Detective Otto], you guys'll probably make another appointment, you can come in and sit down and talk with her . . . . But tell me what you think you remember, 'cause I can see in your eyes that there's some shit floating around there that you haven't told [Detective Otto], and you're scared.
McIntyre then confessed to the allegations in part, stating, " When I first came in, I didn't remember anything. And now that I've been dwelling on it . . . I do remember one time downstairs rubbing on her legs, just fun, and I think I do remember going in between her legs, that was just like once [or] twice." Deputy Porter then asked, " So you think she's telling the truth about you rubbing her vagina?" and McIntyre responded, " I do somewhat remember, yeah, a little bit of just, like, rubbing her legs and doing that."
[¶11] Deputy Porter then informed McIntyre that the lie detector test was no longer necessary. He asked McIntyre if he wished to write an apology letter to J.M., which McIntyre did after Deputy Porter left the room. When Deputy Porter came back, McIntyre signed the letter, and they arranged for McIntyre to return two days later to speak with Detective Otto. When McIntyre arrived at that time, he indicated that he wanted a lawyer, and Detective Otto never conducted the follow-up interview.
[¶12] The People charged McIntyre with four counts of sexual assault on a child by one in a position of trust and two counts of incest. McIntyre moved to suppress the statements he made during both interviews, arguing that they were involuntary. The trial court denied the motion as to the first interview but granted it as to the second, finding that " the cumulative effect of Deputy Porter's misstatements, innuendos, threats and implicit promises are more than enough ...