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Carter v. People

Court of Appeals of Colorado

June 5, 2017

Parish Ramon Carter, Petitioner/Cross-Respondent
v.
The People of the State of Colorado. Respondent/Cross-Petitioner

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 10CA1993

          Attorneys for Petitioner/Cross-Respondent: Dean Neuwirth P.C. Dean Neuwirth Denver, Colorado The Law Offices of Joshua Johnson Joshua Johnson Denver, Colorado

          Attorneys for Respondent/Cross-Petitioner: Cynthia H. Coffman, Attorney General Elizabeth Rohrbough, Senior Assistant Attorney General Denver, Colorado

         En Banc

          OPINION

          COATS JUSTICE.

          ¶1 Carter petitioned for review of the court of appeals' judgment in People v. Carter, 2015 COA 36, P.3d, which affirmed, among others, his conviction of conspiracy to commit first degree murder. With regard to a videotaped interrogation by the police, the district court denied a motion to suppress the defendant's statements, rejecting all of his Fifth and Fourteenth Amendment claims, including his assertion that he had not been adequately advised, as required by Miranda v. Arizona, of his right to have an attorney present during interrogation; and it denied the defendant's motion to limit access to that videotape during jury deliberations. In a fractured opinion, in which all three members of the division of the court of appeals wrote separately, the intermediate appellate court affirmed with regard to both of these assignments of error.

         ¶2 Because the Miranda advisement of the defendant reasonably conveyed that he had a right to consult with counsel, both before and during any interrogation by the police, and because the district court did not abuse its discretion in permitting the jury unrestricted access to both a video recording and transcript of the defendant's custodial interrogation, the judgment of the court of appeals is affirmed.

         I.

         ¶3 Parish Carter was charged with two counts of first degree murder, bribing a witness, conspiracy to commit first degree murder, intimidation of a witness, and unlawful distribution of a controlled substance, all in connection with the drive-by shooting deaths of Javad Marshall-Fields and his fiancée Vivian Wolfe, the week before Marshall-Fields was to testify in a prosecution of Carter's stepbrother, Robert Ray, for an earlier murder. Carter was acquitted of first degree murder and of bribing a witness but convicted of conspiracy to commit murder and the remaining charges. He was sentenced to 48 years for conspiracy and to consecutive lesser terms of incarceration for his other convictions, for a total sentence of 70 years.

         ¶4 Prior to trial, the defendant moved to suppress the entirety of his interrogation at the Aurora Police Department, asserting that he had not been adequately advised of his Miranda rights, that he did not make an effective waiver of those rights, and that his statements were, in any event, involuntary. The motion was heard over four different days, interspersed among similar motions filed on behalf of two other defendants accused of the same murders. Apart from the testimony of the detective who interrogated Carter, and through her testimony the videotape of the interrogation itself, the remainder of the evidence relative to Carter's interrogation consisted of the testimony of five witnesses, all concerning Carter's mental condition and, as a result of his mental condition, the effectiveness of his waiver of Miranda rights and voluntariness of his statements.

         ¶5 With regard to the advisement administered to the defendant, itself, the record of the suppression hearing indicated that just prior to that interrogation, the lead detective warned the defendant 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?

         Following this advisement, the defendant answered questions for somewhere between ninety minutes and two hours. In doing so, he admitted to being the individual shown on a security videotape the day before the murders approaching Marshall-Fields in a sports bar, after which Marshall-Fields was visibly disturbed. The defendant denied, however, that he made any threats and denied that he made this approach at the behest of others. He further denied any association with Ray or other individuals considered suspects by the police. After the interrogation turned confrontational, the defendant invoked his rights to an attorney and to remain silent, and accordingly, the interrogation was terminated.

         ¶6 At the conclusion of the lengthy suppression hearing, the district court rejected all of the defendant's grounds for suppressing the interrogation, including his challenge to the adequacy of the Miranda advisement itself. During trial, the prosecution played a video recording of the custodial interrogation, and the recording was admitted into evidence. A transcript of the interrogation was provided to the jurors while the video played, as a demonstrative exhibit, and it was collected from them immediately thereafter. At the close of the evidence, the defendant moved the district court to limit the jury's access to the interrogation exhibits during deliberations, on the grounds that the jury would be unfairly prejudiced by re-watching the detectives' accusations, made during the interrogation, that the defendant was lying to them. The government objected, arguing that because the case turned on the defendant's mental capacity, the jury needed unfettered access to the video-to see and deliberate over "the defendant's demeanor, his conduct, his reaction, his gestures, his inflections throughout the interview[, ] to help them assess his mental abilities."

         ¶7 The trial court largely adopted the government's position, concluding that out-of-court statements of criminal defendants should generally be given to juries, and holding that the specific risk of prejudice asserted by the defendant-arising from the interrogating detectives' accusations-did not warrant restricting the jury's access. The trial court then provided the jury with the DVD recording and a computer on which to play it, placing no restrictions on its use. Later, at the request of the jury, the trial court also provided the jurors with the transcript, along with a defense-requested instruction that unlike the video, the transcript did not constitute evidence.[1]

         ¶8 On direct appeal, the defendant challenged the adequacy of his Miranda advisement, asserting specifically that the third advisement-that he had a right to have an attorney-failed to convey that he had a right to the presence of counsel both before and during his interrogation. In addition, the defendant asserted that even if the videotape of his interrogation had been properly admitted into evidence, the district court abused its discretion by denying his motion for restricted access and by instead permitting the jury unfettered access to both the videotape and a transcript of it during its deliberations.

         ¶9 The court of appeals affirmed the defendant's convictions, with all three members of the panel writing separately. With regard to the adequacy of the Miranda advisement, one panelist declined to reach the issue, reasoning that the specific error assigned on appeal, concerning the timing and extent of the defendant's right to the assistance of counsel, had not been preserved. The remaining two panelists found the advisement inadequate, but one of the two found it to be harmless error. With regard to exercise of the court's discretion in permitting the jury access to the defendant's interrogation, one panelist declined to address the issue, based on a finding that the erroneous admission of the defendant's interrogation was not entirely harmless, while the remaining two panelists concluded that the district court did not abuse its discretion in allowing unfettered access to the out-of-court statement of the defendant, and because the erroneous admission of the defendant's interrogation at trial was harmless, any error in allowing the jury access to the erroneously admitted exhibit was similarly harmless.

         ¶10 The defendant petitioned this court for further review, challenging the court of appeals' conclusions that the district court's Miranda rulings, although erroneous, were nevertheless harmless, and that the district court did not abuse its discretion in allowing jury access to the defendant's interrogation. The People cross-petitioned for review of the court of appeals' conclusion that the defendant was not adequately advised of his right to the presence of an attorney before and during interrogation.

          II.

         ¶11 In Miranda v. Arizona, the Supreme Court delineated a system for protecting the privilege against self-incrimination of individuals taken into custody or otherwise deprived of their freedom in any significant way by the authorities, and subjected to questioning. 384 U.S. 436, 471, 478-79 (1966). In the absence of "other fully effective means, " this system requires warnings of specific rights, a knowing and intelligent waiver of those rights along with agreement to answer questions, and the opportunity to exercise those rights throughout the interrogation. Id. The Supreme Court specifically held that unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against that individual. Id.

         ¶12 With regard to the warnings in particular, the Court expressly summarized its reasoning by holding that the individual "must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Id. Although the Court made clear that the warnings themselves are an absolute prerequisite, without which sufficient awareness for an effective waiver of those rights cannot be found, it indicated at the same time that no "talismanic incantation" was intended. California v. Prysock, 453 U.S. 355, 359-60 (1981) (per curiam) (describing Miranda, 384 U.S. at 476, 479). In subsequent cases, the Court has similarly made clear that it "has never indicated that the rigidity of Miranda extends to the precise formulation of the warnings given, " Florida v. Powell, 559 U.S. 50, 60 (2010) (quoting Prysock, 453 U.S. 355 at 359), nor must the words employed in the warnings be examined "as if construing a will or defining the terms of an easement." Id. (quoting Duckworth v. Eagan, 492 U.S. 195, 203 (1989)). Rather the inquiry is simply whether the warnings "reasonably convey to a suspect his rights as required by Miranda." Id. (quoting Duckworth, 492 U.S. at 203 (quoting Prysock, 453 U.S. at 361)) (internal quotation marks and alterations omitted); see also Sanchez v. People, 2014 CO 56, ¶ 12, 329 P.3d 253, 257.

         ¶13 In three separate cases, the Supreme Court has addressed the adequacy of a Miranda advisement with respect to the interrogated person's right to the presence of an attorney or some combination of that right and the timing of the right to the appointment of counsel. While it seems clear that a person must be informed of his right to the appointment of counsel before custodial interrogation if he cannot afford but desires one, and his right to consult with counsel and have counsel with him during any interrogation, Miranda, 384 U.S. at 471-73, the Court found in each of these three cases that, "in their totality, " the warnings given satisfied the requirements of Miranda. See Powell, 559 U.S. at 61-64; Duckworth, 492 U.S. at 201-05; Prysock, 453 U.S. at 359-61. In perhaps the closest of the three to this case, the Supreme Court concluded that being warned of his right to talk to a lawyer before answering questions and his right to use his rights at any time, reasonably conveyed to the defendant the right to have an attorney present, not only at the outset of interrogation but at all times. Powell, 559 U.S. at 53-54. The Court reasoned that a "reasonable suspect" in a custodial setting who has just been read his rights would not come to the counterintuitive conclusion that he would be obligated to hop in and out of the holding area to seek his attorney's advice or to anticipate a scenario in which his lawyer would be admitted into the interrogation room each time the police ask him a question and then ushered out each time the suspect responded. Id. at 62-63. Despite acknowledging that the warnings in that case were not the clearest possible formulation of Miranda's right-to-counsel advisement, the Court found them to be "sufficiently comprehensive and comprehensible when given a commonsense reading." Id.

         ¶14 Unlike the advisement in Powell, the specific advisement of the defendant's right to counsel in this case did not include any temporal limitation that might even colorably be misunderstood to restrict the exercise of that right relative to interrogation by the police. Rather than being advised that he could consult with a lawyer before answering any particular question, which had given rise to a suggestion in Powell that he could therefore consult with counsel only before, and not during, interrogation, the defendant in this case was advised in the present tense, "You have the right to have an attorney, " immediately after being advised that before the detective could even talk to him, she had to do "the formal little rights things, " a clear reference to the advisement of rights that followed forthwith. In addition to the fact that the defendant was simultaneously advised in the present tense, "So you have the right to remain silent, " which the defendant does not suggest could reasonably be understood to refer only to a right to remain silent later at trial rather than at the time of interrogation, the defendant's advisement of his right to counsel was not followed by any suggestion that it would not apply until some later time. Cf. Duckworth, 492 U.S. 195 (resolving a question raised by the subsequent advisement that an attorney would be appointed only "if and when" the suspect went to court). Much as the Court held in Powell, it would be highly counterintuitive for a reasonable suspect in a custodial setting, who has just been informed that the police cannot not talk to him until after they advise him of his rights to remain silent and to have an attorney, to understand that an interrogation may then proceed without permitting him to exercise either of those rights.

         ¶15 The defendant would prefer to ignore the detective's prologue to her articulation of the four Miranda rights, which expressly notified him that the warnings that followed were a prerequisite to any interrogation by her, and instead to assess in isolation the adequacy of the warning concerning the third right. However, the Supreme Court's Miranda jurisprudence could not more clearly establish that the adequacy of the warnings, as distinguished from the effectiveness of the defendant's waiver of the rights contained in them, is to be assessed objectively, for what the warnings would "reasonably convey, " or would convey to a "reasonable suspect, " "in their totality." Powell, 559 U.S. at 61-63; Duckworth, 492 U.S. at 205. Unlike the focus of his argument at the suppression hearing on the effectiveness of his waiver, the defendant not only emphatically asserts in his presentation to us that his challenge on appeal is limited to the adequacy of the warnings themselves, but he openly chastises the People for even suggesting that he may intend to include in his assignment of error a challenge to the effectiveness of his waiver. While characterizing the Miranda warnings as "the formal little rights things" appears to be an attempt by the detective to minimize the significance of waiving those rights, and as the Supreme Court ...


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