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People v. Jaquez

Court of Appeals of Colorado, Fourth Division

May 31, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Anthony Roger Jaquez, Defendant-Appellant.

          Adams County District Court No. 14CR2305 Honorable John E. Popovich, Judge

          Cynthia H. Coffman, Attorney General, John T. Lee, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          BERGER JUDGE

          ¶ 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 (1966), before this encounter.

         ¶ 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 Jaquez's 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 Jaquez's conviction and remand for a new trial.

          I. Relevant Facts And Procedural History

         ¶ 4 The prosecution's 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 wouldn't 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 clerk immediately triggered the store's silent alarm and called 911.

         ¶ 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.[1] 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 Harris's 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 Harris's 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 Harris's 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 Jaquez's 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 don't want to see you get in trouble or jammed up if you didn't 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 "wouldn't do anything like that . . . he wouldn't 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 officer's attention to the robber's feet, which led him to notice an unusual crease in the robber's jeans. The officer further testified that he compared a photo of Jaquez's 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 clerk's 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).

         II. Jaquez's Statements Were Admitted in Violation of the Fifth Amendment

         ¶ 18 Jaquez contends that the trial court violated his Fifth Amendment right against self-incrimination when it admitted the statements he made to the clerk during his voice identification. We agree. A. Introduction

         ¶ 19 In its written order addressing the admissibility of Jaquez's statements, the trial court found that the clerk's colloquy with Jaquez constituted a custodial interrogation under Miranda. It also found, with record support, that the clerk was acting as an agent of the state. Nevertheless, the trial court determined that Jaquez's statement, "I would not harm you, " made while he was in custody, was admissible because Jaquez was merely asked to repeat the words as spoken by the robber. As a result, the trial court found that the statements were nontestimonial and thus not protected by the Fifth Amendment.

         ¶ 20 Had Jaquez been directed to say the words said by the robber for the purposes of the voice identification procedure, the trial court's analysis would have been sound and consistent with the Fifth Amendment. But, the record does not support the factual underpinning of the court's analysis.

         ¶ 21 At trial, the prosecutor introduced the statements both through the clerk and through a police officer who was standing nearby. The prosecutor had the following colloquy with the clerk:

Q. And what was the response from the individual in the police car ...

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