Rehearing Denied July 12, 2018
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
County District Court No. 14CR2305, Honorable John E.
H. Coffman, Attorney General, John T. Lee, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
K. Wilson, Colorado State Public Defender, Kamela Maktabi,
Deputy State Public Defender, Denver, Colorado, for
1] During a one-on-one voice identification
procedure, the victim of an armed robbery was directed by the
police to speak with the defendant, Anthony Roger Jaquez,
while Jaquez was in custody, to "see if [Jaquez] would
say anything to [the victim]." Jaquez was not warned of
his Fifth Amendment rights under Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before
2] Unlike a typical voice identification procedure,
Jaquez was not merely asked to repeat the words heard by the
victim during the robbery. Instead, Jaquez and the victim had
a brief conversation during which Jaquez made statements that
were nearly identical to the statements made by the robber.
These statements were admitted at his criminal trial as
substantive evidence of his guilt.
3] We must decide whether the admission of those
statements violated Jaquezs Fifth Amendment right against
self-incrimination. We conclude that the statements should
not have been admitted and further conclude that the error
was not constitutionally harmless. Accordingly, we reverse
Jaquezs conviction and remand for a new trial.
Relevant Facts And Procedural History
4] The prosecutions evidence permitted the jury to
find the following facts. At approximately 4:50 a.m., a
masked man robbed an Adams County 7-Eleven and its store
clerk at gunpoint. The robber directed the clerk to give him
the money in the cash register, and told the clerk that as
long as he cooperated, "he wouldnt be harmed."
5] The clerk gave the robber the money in the cash
register— approximately $107, comprised of ten, five,
and one dollar bills. The robber then left the store. The
immediately triggered the stores silent alarm and called
6] The clerk described the robber as male, wearing a
blue bandana over his face, a white hat, black coat, blue
jeans, white shoes, and white contact lenses. When officers
arrived on scene, the clerk also told them that he recognized
the voice of the robber as the voice of a prior customer. He
said that when the robber told him that he would not harm
him, the robber drew out, in an unusual manner, the
"h" in the word harm.
7] Roughly ten minutes after the robber left the
7-Eleven, Jaquez was walking north up a hill in the
Lamplighter Mobile Home Trailer Park— about six blocks
from the 7-Eleven— and came across Paul Harris sitting
on his porch. Harris noticed that Jaquez "seemed a bit
out of breath, a little sweaty, [and] kind of look[ed] a
little tired." The two started a conversation. Jaquez
told Harris that he had been in an argument with his cousin,
and that his cousin had driven off in their car. Jaquez
explained that he lived in Pueblo, and asked Harris if he
knew how to get to the nearest Greyhound bus station. Harris
did not know where the Greyhound station was, so instead
tried to explain how to get to the local bus. However, it
became clear to him that Jaquez did not know the area well
enough to understand the directions Harris was giving.
8] Jaquez then asked Harris to give him a ride to
the bus stop. Harris initially refused. Jaquez asked again
and told Harris that he was willing to pay him. Jaquez pulled
a wad of cash out of his pocket, which, according to Harris,
contained some ten, five, and one dollar bills. Harris then
reluctantly agreed to give Jaquez a ride to the bus stop, but
permitted Jaquez to first use his cell phone, his bathroom,
and have a drink of water.
9] The two started walking towards Harriss car, but
they saw a police car parked on the nearby corner. For
reasons not explained by the record, Harris suggested that
they go back to his house and wait until the police left the
area. Jaquez instead suggested that Harris go pick up his
car, and then meet him back at Harriss house. Harris agreed.
As he walked to his car, he was stopped by the police
officer. After some questioning, Harris told the officer
about his interactions with Jaquez.
10] Harris then took officers back to his house
where Jaquez was supposed to be waiting. The officers
searched Harriss house and surrounding yard but did not find
Jaquez. While the officers were speaking with Harris outside
his house, Harris noticed Jaquez crouched between two cars,
and pointed him out to officers.
11] An officer approached Jaquez, but Jaquez walked
away. The officer told Jaquez to stop, but Jaquez started
jogging. The officer ran after Jaquez and, a short distance
away, the officer stopped Jaquez, handcuffed him, and placed
him in the backseat of a police vehicle. At the time, Jaquez
was wearing jeans, a black t-shirt, and white shoes; he had
$28.58 in his possession. He did not have a white hat, blue
bandana, white contact lenses, black jacket, or a gun.
12] Shortly after Jaquez was apprehended, the
7-Eleven clerk was brought to the mobile home park for a
show-up identification. The clerk was unable to make a visual
identification because the robber had covered his face and
disguised the color of his eyes with white contact lenses.
13] As an alternative to a visual identification,
the police asked the clerk to speak to Jaquez to see if he
could recognize Jaquezs voice as the voice of the robber.
Importantly, the police did not ask Jaquez to repeat the
words the robber had used during the robbery. Instead, the
officers told the clerk that he did not need to ask Jaquez
any questions, but was told "to speak with [Jaquez] and
tell him that, listen, I was just robbed and I dont want to
see you get in trouble or jammed up if you didnt do this and
just see if [Jaquez] would speak with [the clerk]."
14] At the time, Jaquez was in the backseat of the
police vehicle in handcuffs with the window closest to him
rolled down. The
clerk stood next to the car and did exactly what the police
told him to do: he told Jaquez that he did not want to see
him get "jammed up" for something he did not do.
Jaquez responded by saying he "wouldnt do anything like
that ... he wouldnt harm him." The clerk immediately
walked to the nearest officer and identified Jaquez as the
robber. Based on this identification, Jaquez was arrested and
charged with aggravated robbery.
15] Jaquez moved to suppress both the out-of-court
voice identification and the statements he made to the clerk
during the voice identification procedure. After an
evidentiary hearing, the trial court ruled that both would be
admissible at trial.
16] The prosecution also presented testimony by an
investigating officer who testified that in watching the
surveillance video at the 7-Eleven, he noticed that the
robber had a distinct gait. This distinct gait drew the
officers attention to the robbers feet, which led him to
notice an unusual crease in the robbers jeans. The officer
further testified that he compared a photo of Jaquezs jeans
to a still frame from the surveillance video from the
7-Eleven. From this, he concluded that Jaquez had the same
unusual crease in his jeans as the robber.
17] Jaquez was convicted as charged. He appeals,
arguing that the trial court erred by (1) admitting the
statements made to the clerk during a custodial interrogation
in violation his Fifth Amendment rights; (2) admitting the
clerks one-on-one voice identification because the
identification procedure was unduly suggestive and unreliable
in violation of his right to due process; and (3) permitting
a police officer to give expert opinion testimony when he was
not disclosed or qualified as an expert under CRE 702 and
Crim. P. 16(I)(a)(1)(III).
Jaquezs Statements Were Admitted in Violation of the Fifth
18] Jaquez contends that the trial court violated
his Fifth Amendment right against self-incrimination when it
admitted the statements he made to the ...