County District Court No. 14CR2305 Honorable John E.
Cynthia H. Coffman, Attorney General, John T. Lee, Senior
Assistant Attorney General, Denver, Colorado, for
Douglas 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 (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.
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. 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
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
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
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.
Jaquez's Statements Were Admitted in Violation of the
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
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 ...