Arapahoe County District Court No. 06CR713 Honorable Michael Spear, Judge Honorable Gerald J. Rafferty, Judge
Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
The Law Offices of Joshua Johnson, Joshua Johnson, Denver, Colorado; Dean Neuwirth, P.C., Dean Neuwirth, Denver, Colorado, for Defendant-Appellant
¶ 1 In Part II, JUDGE FOX, joined by Judge Ney, concludes that 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 reversal 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.
¶ 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, 384 U.S. 436 (1966), to have an attorney present before and during his interrogation. We conclude that this abbreviated statement does not meet the criteria established by Miranda. Nonetheless, as explained below, we affirm the judgment.
¶ 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 of 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 ...