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
Douglas K. Wilson, Colorado State Public Defender, Inga K.
Nelson, Deputy State Public Defender, Denver, Colorado, for
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.
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Coleman's Colorado driver's license had been revoked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
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.
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.
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.
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).
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.
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
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
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
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
The Prosecutor's Closing Argument Does Not Require
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
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 ...