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People v. Coleman

Court of Appeals of Colorado, Third Division

May 17, 2018

The People of the State of Colorado, Plaintiff-Appellee,
Norman Idell Coleman, Defendant-Appellant.

          Jefferson County District Court No. 14CR928 Honorable Phillip J. McNulty, Judge Honorable Randall C. Arp, Judge.

          Cynthia H. Coffman, Attorney General, Melissa D. Allen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

          Douglas K. Wilson, Colorado State Public Defender, Inga K. Nelson, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.


          WEBB JUDGE.

         ¶ 1 A jury convicted Norman Idell Coleman of aggravated driving after revocation prohibited - driving under the influence (ADARP); driving under the influence (DUI) - third or subsequent alcohol related offense; and careless driving. The trial court sentenced him to concurrent terms of one year in the custody of the Department of Corrections (DOC) on the ADARP conviction; one year of jail and one year of additional jail, suspended subject to completion of four years of probation, on the DUI conviction; and ninety days in jail on the careless driving conviction.

         ¶ 2 Coleman appeals, contending the trial court erred in denying his motion to suppress; the prosecutor made improper closing argument; and because the court sentenced him to the DOC for the ADARP conviction, it could not also sentence him to probation for the DUI conviction. The last contention raises an unresolved question of statutory interpretation.

         ¶ 3 The Attorney General concedes preservation of the suppression contention, a portion of the improper argument contention, and the sentencing contention.

         ¶ 4 We affirm the judgment of conviction but vacate the sentence and remand for resentencing.

         I. Background

         ¶ 5 An officer pulled Coleman over after having observed Coleman's car not reacting to a green light until another car honked, then driving very slowly through the intersection, and weaving in and out of his lane. Based on his contact with Coleman, the officer requested a DUI investigator. During the approximately ten minute wait for the investigator to arrive, Coleman attempted to exit his car. The officer ordered him to remain inside, and Coleman complied. Also during the wait, the officer learned that Coleman's Colorado driver's license had been revoked because he was a habitual traffic offender (HTO).

         ¶ 6 The investigator arrived and questioned Coleman, who agreed to perform roadside sobriety tests. During the walk and turn test, Coleman lost his balance. He declined to continue, saying he wanted to be taken "where he needed to go so he could bond out." The investigator arrested him for DUI, ADARP, and careless driving, as well as on outstanding warrants.

         ¶ 7 After the investigator informed Coleman of the Colorado Express Consent law, he chose a blood test. But then he said again that he just wanted to be taken somewhere that he could bond out. The investigator took this statement as a refusal to submit to a chemical test, which Coleman does not challenge on appeal.

         II. The Trial Court Properly Denied the Motion to Suppress

         ¶ 8 Coleman contends that because he was in custody when he first said he wanted to be taken to bond out, and had not yet been given a Miranda advisement, that statement should have been suppressed. We reject this contention.

         A. Standard of Review

         ¶ 9 Whether a statement is the product of custodial interrogation for Miranda purposes presents a mixed question of law and fact. People v. Begay, 2014 CO 41, ¶ 9. An appellate court defers to the trial court's factual findings if they are supported by the record, but reviews de novo the ultimate legal question whether the defendant was subject to custodial interrogation. Id.

         ¶ 10 "If a statement obtained in violation of Miranda was admitted as part of the prosecution's case-in-chief, over the defendant's objection, reversal is required unless the error was harmless beyond a reasonable doubt." People v. Vasquez, 155 P.3d 588, 592 (Colo.App. 2006).

         B. Law

         ¶ 11 The United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V; see also Colo. Const. art. II, § 18. Under Miranda v. Arizona, 384 U.S. 436, 444 (1966), statements made by a defendant during custodial interrogation may not be admitted into evidence unless the defendant was advised of, and waived, "his right to remain silent . . . and his right to the presence of an attorney . . . ." People v. Frye, 2014 COA 141, ¶ 9 (quoting People v. Madrid, 179 P.3d 1010, 1014 (Colo. 2008)). But "[f]or Miranda to be applicable, the suspect must be in custody and the statement must be the product of a police interrogation." People v. Baird, 66 P.3d 183, 188 (Colo.App. 2002) (citing People v. Reddersen, 992 P.2d 1176 (Colo. 2000)).

         ¶ 12 To determine whether a suspect was in custody under Miranda, courts apply an objective test evaluating, under the totality of the circumstances, "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. Cowart, 244 P.3d 1199, 1203 (Colo. 2010) (citation omitted); see also People v. Stephenson, 159 P.3d 617, 620 (Colo. 2007).

         ¶ 13 In applying this test, courts should consider the time, place, and purpose of the encounter with law enforcement; the persons present during the questioning; the words used by those conducting the interview; the officer's tone of voice and general demeanor; the length and mood of the interrogation; the officer's response to any questions asked by the suspect; whether the suspect was restrained in any way; whether the suspect was given any instructions; and the suspect's response to such directions. People v. Elmarr, 181 P.3d 1157, 1162 (Colo. 2008) (citing People v. Matheny, 46 P.3d 453, 465-66 (Colo. 2002)). Still, "[n]o single factor is determinative." People v. Becker, 196 P.3d 264, 266 (Colo. 2008).

         ¶ 14 Routine traffic stops do not implicate Miranda because the nature of the detention is brief and outside a "police dominated environment." People v. Taylor, 41 P.3d 681, 692 (Colo. 2002). Given that traffic stops are non-coercive, "the protections afforded by Miranda need not be applied unless the defendant's freedom of action is curtailed to a degree associated with formal arrest." People v. Wallace, 724 P.2d 670, 673 (Colo. 1986); see also People v. Null, 233 P.3d 670, 676 (Colo. 2010). Requiring a motorist to get out of his or her vehicle alone does not constitute custody for purposes of Miranda, unless the police apply physical restraint. Stephenson, 159 P.3d at 622.

         C. Analysis

         ¶ 15 Coleman asserts that what began as a routine traffic stop was elevated to custody for purposes of Miranda because the length of the detention was longer than a normal traffic stop, the officer's order for Coleman to remain in his car restrained his freedom of movement, and the investigator removed Coleman from public view for the roadside sobriety tests. For three reasons, this assertion falls short.

         ¶ 16 First, the record supports the trial court's factual findings that the stop was brief, noncoercive, and lasted only long enough for the DUI investigator to arrive and conduct the sobriety tests. See People v. Lidgren, 739 P.2d 895, 896 (Colo.App. 1987) ("[W]hen determining whether a detention is too long in duration, it is appropriate to examine whether police were diligent in pursuing a means of investigation likely to resolve their suspicions quickly.").

         ¶ 17 Second, the order for Coleman to remain in his car until the investigator arrived was reasonable under the circumstances, done without any show of force, and resulted in his remaining in the car for at most about ten minutes. Stephenson, 159 P.3d at 622 (order to remain in car not restraint on freedom tantamount to formal arrest when no show of force by officer and restraint not abnormally long).

         ¶ 18 And third, contrary to Coleman's argument that the investigator removed him from public view during the sobriety tests, the investigator testified that he positioned Coleman in a parking lot next to the street so that passing traffic would not distract him or interfere with his vision during the tests. If passing cars could affect Coleman's vision, their drivers could have "witnessed the interaction." People v. Pleshakov, 2013 CO 18, ¶ 30. Thus, he was not removed from the view of the public.

         ¶ 19 Given all this, we conclude that Coleman was not in custody for Miranda purposes. Thus, even assuming that he was interrogated without an advisement, we further conclude that the court properly denied the motion to suppress.

         III. The Prosecutor's Closing Argument Does Not Require Reversal

         ¶ 20 Coleman next contends the prosecutor's comments in summation on his pre-arrest and post-arrest silence violated his constitutional right against self-incrimination. We reject this contention.

         ¶ 21 Coleman defended the ADARP count by challenging the prosecution's evidence that he knew of his HTO status. While arguing in closing that the prosecution had failed to prove this knowledge, defense counsel said, "What we do know is that when Mr. Coleman was stopped there were no statements saying, I shouldn't be driving. I don't have a license."

         ¶ 22 In his rebuttal closing, the prosecutor responded to this comment, saying:

Well, he never stated that he was [an HTO]. Well, of course not. Who would admit to that? He tried to pass off a Texas ID. But the flipside, he never tried to say that he did have a valid driver's license. Never said, Officer, this is a valid driver's license.

         ¶ 23 Later in rebuttal, the prosecutor addressed Coleman's refusal to take a blood test, saying:

And then he says, yeah, I'll do a blood test. When he gets there, I don't think I will do that.
And the instructions say, this is one of the only times in the law that you can hold someone's silence against them. Because he didn't testify, that doesn't matter in this courtroom. He has a right not to testify. But he doesn't have a right to not take a test.
And because he refused to take a test you can hold that against him. The law allows you to. And that's ...

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