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Marko v. People

Supreme Court of Colorado, En Banc

December 17, 2018

Robert Hull Marko, Petitioner
v.
The People of the State of Colorado. Respondent

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 11CA623

          Attorneys for Petitioner: Megan Ring, Public Defender Alan Kratz, Deputy Public Defender Denver, Colorado

          Attorneys for Respondent: Cynthia H. Coffman, Attorney General Rebecca A. Adams, Senior Assistant Attorney General Denver, Colorado

          OPINION

          HART JUSTICE

         ¶1 Robert Hull Marko asks this court to reverse his convictions for first degree murder and sexual assault for two reasons. First, he argues that the trial court impermissibly denied his request to strike a juror for cause because of that juror's views on the defense of not guilty by reason of insanity. Second, he argues that he was in custody and under interrogation before he was informed of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), such that certain statements he made should have been excluded at trial. Because we disagree with both of Marko's contentions, we affirm the decision of the court of appeals, though on different grounds.

         ¶2 We hold that the trial court did not abuse its discretion in denying Marko's challenge for cause to the prospective juror because the trial court sufficiently rehabilitated the juror through individual questioning during voir dire. We therefore do not reach the question whether our decision in People v. Novotny, 2014 CO 18, 320 P.3d 1194, applies retroactively. As to the statements Marko made at the beginning of his interview with the civilian police, we conclude that they were properly admitted because he was not in custody at the time he made the challenged statements.

         I. Background and Procedural History

         ¶3 Nineteen-year-old J.L. was reported missing after she failed to return home on the evening of October 10, 2008. Following a search of the family computer, officers from the El Paso County Sheriff's Office (EPCS) determined that J.L. received a message on October 9, through an online social-network platform, from a person with the username "Rex290." The message suggested that the two "get together" the following day. The police identified "Rex290" as Robert Hull Marko, a soldier stationed at Fort Carson.

         ¶4 The EPCS officers contacted the military police officers (MPs) at Fort Carson and asked that the MPs speak with Marko to determine whether he knew J.L.'s whereabouts. In the early morning of October 11, the MPs conducted a "missing persons and welfare check" at Marko's barracks. J.L. was not in the barracks, and Marko denied knowing her.

         ¶5 Subsequently, the civilian police received information that J.L. had been seen with Marko in the past. The police then went to the provost marshal's office (PMO) at Fort Carson and asked to speak with Marko directly. Following standard base policy, the MPs picked Marko up at his barracks and transported him to the PMO in handcuffs. The handcuffs were removed before the interview with the civilian police began, and Marko was told by the civilian police that he was not under arrest and was free to leave. At the outset of the interview, Marko again denied knowing the victim. But after repeatedly changing his story, he eventually admitted that he knew J.L. and saw her on October 10.

         ¶6 The EPCS officers conducted additional interviews with Marko throughout the day on October 11, as well as on October 12 and 13. On October 13, Marko led the officers to J.L.'s body. Marko admitted that he drove into the mountains with J.L. the morning of October 10, where they argued. He said he knocked J.L. unconscious and sexually assaulted her, before cutting her throat with a knife and leaving her body in a wooded area.

         ¶7 The People charged Marko with first degree murder after deliberation, first degree felony murder, sexual assault, and other crimes, to which he pleaded not guilty and not guilty by reason of insanity (NGRI). At trial, the jury rejected Marko's NGRI defense and convicted him of first degree murder after deliberation, two counts of sexual assault, and two counts of attempted sexual assault as crimes of violence.

         ¶8 Marko appealed his convictions. As relevant here, he argued that the trial court erred in denying his challenge for cause of a prospective juror, Juror C, who made several concerning statements during voir dire about the NGRI defense, including a statement that he would require "overwhelming" evidence of insanity before finding a person not guilty by reason of insanity. Marko also contended that the trial court should have suppressed statements he made to the EPCS officers prior to being advised of his Miranda rights because he was in custody at the time he made them. In particular, he argued that because the MPs transported him to the interview with the EPCS officers and a reasonable person in the military would regard himself as being ordered to submit to the EPCS officers' questioning, the entire initial interview was a custodial interrogation.

         ¶9 A division of the court of appeals affirmed Marko's convictions. People v. Marko, 2015 COA 139, ¶ 248, P.3d . Without addressing whether it was error to deny Marko's for-cause juror challenge, the division held that, under Novotny, Marko failed to "establish a reasonable probability that any error contributed to the verdict" warranting reversal. Id. at ¶ 21. The division also concluded that, under the totality of the circumstances, Marko was not in custody during the pre-advisement portion of his initial interview with the EPCS officers. Id. at ¶¶ 60-70. The division recognized that Marko was taken to the PMO in handcuffs and "arguably would have felt that, under the military command structure, he was under an order to go to the station . . . ." Id. at ¶ 61. Marko was informed, however, "at the outset of the interview that he was not under arrest and was free to go at any time." Id. For that reason, the division agreed with the district court that Marko was not in custody at the time of the challenged questioning. Id.

         ¶10 We granted certiorari to review these issues.[1]

         II. Analysis

         ¶11 We begin our analysis by considering whether the trial court erred in denying Marko's challenge for cause to Juror C. After examining the circumstances surrounding the voir dire of Juror C, we cannot conclude that the trial court's decision to deny Marko's challenge was arbitrary, unreasonable, or unfair. Indeed, despite Juror C's initial concerning comments, he was sufficiently rehabilitated by the conclusion of his individual questioning. Because we conclude that there was no error in denying Marko's juror challenge, we need not decide today whether Novotny applies retroactively, or what showing would be required to mandate reversal.

         ¶12 We next consider whether it was error to admit statements Marko made during the pre-advisement portion of the October 11 interview with the EPCS officers. We consider the context of the interview itself as well as the inherent pressures associated with the military command structure and the circumstances that surrounded Marko's delivery to the civilian police for questioning. Ultimately, we conclude that, under the totality of the circumstances, Marko was not in custody before he was advised of his Miranda rights, so the challenged statements were properly admitted.

         A. Juror Challenge

         ¶13 Marko contends that the trial court violated his right to a fair trial by an impartial jury by denying his challenge for cause to Juror C. We disagree.

         1. Relevant Facts

         ¶14 During voir dire, the trial court instructed the panel of prospective jurors that Marko had pleaded not guilty by reason of insanity and noted that the prosecution had the burden of establishing beyond a reasonable doubt that Marko was legally sane at the time he allegedly committed the offenses.

         ¶15 The trial court and the attorneys later questioned several members of the prospective juror panel about their responses to written questionnaires. During this questioning, Juror C expressed concerns that the NGRI defense is too often used by defendants to "excuse" their behavior. The trial court explained the legal definition of insanity and asked whether Juror C would be able to return an NGRI verdict if the prosecution did not meet its burden at trial. He responded, "I think I'd still have a tough time with it." He also stated that the evidence needed to prove insanity would have to "be so ...


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