County District Court No. 11CR3119 Honorable Jill-Ellyn
Cynthia H. Coffman, Attorney General, Molly E. McNab,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Kamela
Maktabi, Deputy State Public Defender, Denver, Colorado, for
1 Defendant, April Rose Travis, beat her housemate with a mop
handle and stabbed her over a disagreement about money. A
jury convicted Travis of second degree assault causing
serious bodily injury, felony menacing, and third degree
assault with a deadly weapon. The trial court sentenced
Travis to ten years imprisonment and three years of mandatory
2 Travis claims three errors on appeal. First, she argues
that the trial court erred when it denied her motion to
suppress statements she made to the police and admitted those
statements at trial. Second, she contends that the trial
court abused its discretion when it denied her motion to
continue the trial so she could hire private counsel. Third,
she argues that statements by the prosecution during closing
argument constituted prosecutorial misconduct. Travis also
asserts that the cumulative effect of these alleged errors
3 Because we are unable to determine on the record before us
whether the court should have continued the trial, we remand
for further proceedings. We reject all other claims of error.
Relevant Facts and Procedural History
4 Travis, her husband, and the victim lived together in a
three-bedroom trailer. The victim suffered from disabilities
and Travis purportedly helped the victim manage her money and
5 Travis learned that the victim had between six and eight
dollars in her purse. Travis told the victim she was not
permitted to have any money (the basis for such a directive
is unclear), and took away the victim's purse. The victim
demanded that Travis return her purse. In response, Travis
slapped the victim and punched her in the face several times.
The victim fell and knocked over a potted plant, spilling
dirt on the floor. Travis ordered the victim to clean up the
mess. When the victim did not do so to Travis's
satisfaction, Travis hit the victim with a mop handle
repeatedly, tore out clumps of her hair, and stabbed her arm
with a kitchen knife. The victim called 911.
6 Several medical personnel and police officers responded to
the call. While the victim received medical attention in the
living room, one of the officers asked Travis to step into
the adjoining kitchen, where he questioned her for about ten
minutes. A second officer participated in a portion of that
7 After Travis told the first officer that she had attacked
the victim, the second officer arrested Travis and drove her
to the police station, where she was advised of her
Miranda rights and further interrogated. Travis
again admitted to the attack during this interrogation.
Travis was charged with second degree assault causing serious
bodily injury, felony menacing, and second degree assault
with a deadly weapon.
8 Travis moved to suppress the statements she made to the
police at her home and at the police station. The trial court
denied her motion. On the morning of trial, Travis requested
a continuance to enable her to dismiss her public defender
and hire private counsel. The court denied that motion, the
trial commenced, and the jury convicted Travis of the
offenses described above.
Suppression of Travis's Statements to Police
9 Travis argues that the trial court erroneously concluded
that she was not in custody during the interview with police
that occurred at her home and that, because she was not
advised of her Miranda rights, the court erred in
denying her motion to suppress the statements she made at
that time. Like the trial court, we conclude that Travis was
not in custody during that interview and thus no
Miranda warnings were required.
10 "To protect a [defendant's] Fifth Amendment right
against self-incrimination, Miranda prohibits the
prosecution from introducing in its case-in-chief any
statement . . . procured by custodial interrogation, unless
the police precede their interrogation with
[Miranda] warnings." People v.
Matheny, 46 P.3d 453, 462 (Colo. 2002) (citing
Miranda v. Arizona, 384 U.S. 436, 444 (1966)). The
protections of Miranda apply only if a defendant is
subject to both custody and interrogation. Mumford v.
People, 2012 CO 2, ¶ 12.
11 The People concede that Travis was subjected to
interrogation at her home. Thus, to resolve Travis's
claim, we must determine whether the trial court correctly
ruled that she was not in custody at that time.
12 Determining whether a person is in custody for
Miranda purposes is a mixed question of fact and
law. Matheny, 46 P.3d at 462. We defer to the trial
court's findings of historical fact if those findings are
supported by competent evidence in the record. Id.
However, we review de novo the legal question of whether the
facts, taken together, establish that a defendant was in
custody for Miranda purposes. People v.
Elmarr, 181 P.3d 1157, 1161 (Colo. 2008).
13 "To determine if a particular defendant was in
custody, trial courts must decide whether a reasonable person
in the defendant's position would consider himself to be
deprived of his freedom of action to the degree associated
with a formal arrest." People v. Pascual, 111
P.3d 471, 476 (Colo. 2005) (citation omitted). To make this
determination, a court must consider the totality of the
circumstances under which the interrogation was conducted.
People v. Barraza, 2013 CO 20, ¶ 17. Factors a
court should consider include the following:
(1) the time, place, and purpose of the encounter; (2) the
persons present during the interrogation; (3) the words
spoken by the officer to the defendant; (4) the officer's
tone of voice and general demeanor; (5) the length and mood
of the interrogation; (6) whether any limitation of movement
or other form of restraint was placed on the defendant during
the interrogation; (7) the officer's response to any
questions asked by the defendant; (8) whether directions were
given to the defendant during the interrogation; and (9) the
defendant's verbal or nonverbal response to such
Matheny, 46 P.3d at 465-66. No single factor is
determinative. People v. Pleshakov, 2013 CO 18,
14 The following undisputed facts inform our analysis of the
● At about 1:00 a.m., several officers and medical
personnel responded to an emergency call at Travis's
● One of the officers approached Travis and asked her
to step from the living room into the kitchen, a distance of
about fifteen feet, so he could ask her some questions.
● No walls separated the kitchen and the living room.
● The officer questioned Travis about the events of
that night for about ten minutes.
● Travis's husband was seated five or six feet away
from Travis during the interview and was within her line of
● The officer did not place Travis in handcuffs or
touch her during the interview.
● The officer asked open-ended questions and maintained
a conversational tone.
● Travis's demeanor was calm and relaxed, she was
responsive to questions and gave coherent answers, and she
did not ask the officers any questions.
● A second officer joined the interview for three or
four minutes and then left before the interview had
● Though both officers were in uniform and armed,
neither made any threats or promises or brandished their
● Immediately after the interview concluded, the first
officer took the second officer aside and told him that
Travis had admitted to having committed the assault. The
second officer then told Travis, "you are going to be
placed under arrest for assault against [the victim], "
placed her in handcuffs, and drove her to the police station.
15 For five reasons, we conclude that Travis was not in
custody for Miranda purposes during the interview at
16 First, neither of the officers used physical restraint or
force on Travis during the interview. See People v.
Breidenbach, 875 P.2d 879, 886 (Colo. 1994) ("One
well-recognized circumstance tending to show custody is the
degree of physical restraint used by police officers to
detain a citizen."). To the contrary, the first officer
did not demand, but merely requested, that Travis move to the
kitchen. See People v. Howard, 92 P.3d 445, 452
(Colo. 2004) (suspect was not in custody where the officer
asked, but did not direct, the suspect to step outside of his
17 Second, though Travis was never told that she was
"free to leave, " she did not appear emotionally
distraught, was calm, and never indicated that she wanted the
interview to end. See People v. Klinck, 259 P.3d
489, 494 (Colo. 2011).
18 Third, the interview was brief, lasting no more than ten
minutes. See id. This scenario is significantly
different from the circumstances in People v. Holt,
233 P.3d 1194, 1195-96 (Colo. 2010), where the supreme court
concluded that the defendant was in custody because at least
six police officers entered the defendant's apartment
with their weapons drawn, the defendant was handcuffed and
ordered not to move, the defendant's voice quavered
during questioning, and the interview lasted nearly thirty
19 Fourth, though several officers were present in and around
Travis's home, only two questioned Travis, and one
participated in the conversation for only three or four
minutes. Moreover, Travis's husband (who was also
unrestrained) was nearby, and the officers' tones were
conversational. These circumstances are similar to those in
Pleshakov, ¶ 30, where the supreme court
concluded that the defendant was not in custody when four
officers were present during the interrogation with the
defendant, but only one officer questioned the suspect while
the other officers were engaged in other tasks; the defendant
was questioned in close proximity to his two companions,
neither of whom was handcuffed; and the tone of the
interaction was conversational.
20 Lastly, although the interview took place late at night
during a response to an emergency call, it took place in
Travis's kitchen and not in a secluded location. In
People v. Cowart, 244 P.3d 1199, 1204 (Colo. 2010),
the supreme court addressed the significance of an interview
taking place in the suspect's home, which is inherently
less coercive than questioning in a "police-dominated
setting." Cf. Orozco v. Texas, 394 U.S. 324,
326-27 (1969) (holding that a neutral locus is not
determinative because Miranda protections are not
limited to police station interrogations). In
Cowart, four officers went to the defendant's
home at night to question him about an alleged sexual
assault. 244 P.3d at 1204. One officer asked the defendant to
sit down in the living room and then asked him questions
while the other officers stood a few feet away. Id.
During the interview, the defendant's wife was seated
nearby, and the defendant was never isolated from her by the
officers. Id. Taking these circumstances into
consideration, the court concluded that "[a] consensual
interview that takes place in the defendant's house and
in the presence of his wife does not exert the compulsive
forces Miranda sought to prevent." Id.
21 Similarly, Travis was interviewed in her kitchen with her
husband in view and the officers did not isolate her. This
contrasts with People v. Minjarez, 81 P.3d 348,
356-57 (Colo. 2003), where the defendant was determined to be
in custody when he was questioned in a ...