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
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.
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.
Background and Procedural History
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.
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
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.
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
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.
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.
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.
We granted certiorari to review these issues.
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.
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.
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.
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
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 ...