County District Court No. 14CR3612 Honorable Thomas R. Ensor,
J. Weiser, Attorney General, Melissa D. Allen, Senior
Assistant Attorney General, Colleen Wort, Special Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Alan Kratz, Deputy
State Public Defender, Denver, Colorado, for
1 Defendant, Furmen Lee Leyba, appeals the district
court's judgment of conviction entered on jury verdicts
finding him guilty of aggravated robbery and three counts of
accessory to first degree murder. Among other things, he
argues that the district court erred by declining to suppress
statements he made to police detectives during a two-hour
interrogation after he invoked his right to counsel. Because
we conclude that the detectives stopped interrogating Leyba
after he invoked his right to counsel and Leyba reinitiated
the conversation about the investigation with the detectives,
we affirm the district court's decision declining to
suppress the statements. Leyba's remaining contentions
fail as well. Accordingly, we affirm.
2 Leyba and his fellow gang member Gabriel Flores went to a
house where Jason Quijada, a known drug dealer, was staying.
There were six people in the house - Quijada; two juveniles
who worked for Quijada; Quijada's girlfriend, Cherene
Rivera; Joshua Williamson; and Pastor Estapa. Flores spoke to
Quijada and Quijada gave him a hypodermic needle. A little
while later, for reasons that are unclear, Flores shouted at
Quijada and then shot and killed Quijada and the two
juveniles. He and Leyba then took from the house guns, a
toolbox, and a curling iron box thought to contain money.
Leyba drove away from the house with Flores. But when Flores
realized the box didn't have any money in it, they
returned to the house. Flores threatened the occupants with a
gun and demanded that they give him drugs and money. When
Estapa told Flores the police were on their way to the house,
Flores left and he and Leyba again drove away.
3 Two days later, police officers tried to arrest Leyba.
While Leyba unsuccessfully tried to flee, a gun fell out of
his pants. That gun proved to be the one which had been used
to kill the three victims. Detectives James Morgen and Casey
Overton questioned Leyba for two hours. The interview was
4 The People charged Leyba with three counts of felony
murder, three counts of aggravated robbery, three counts of
accessory to first degree murder, and one count of accessory
to commit aggravated robbery. Leyba's theory of defense
was that he didn't know Flores was going to shoot anyone,
and that after Flores did so, he only took things from the
house and drove with Flores from, back to, and again from the
house because he was afraid Flores would harm him too.
5 The jury acquitted Leyba of felony murder, but found him
guilty of one count of aggravated robbery of Quijada and
three counts of accessory to first degree murder.
6 Leyba raises four issues on appeal: (1) whether the
district court erred by failing to suppress the video of his
interview; (2) whether the district court erred by denying
his request for an instruction on theft as a lesser
nonincluded offense of aggravated robbery; (3) whether the
district court erred by refusing to instruct the jury on the
affirmative defense of duress for the aggravated robbery
charge; and (4) whether the prosecutor engaged in misconduct
requiring reversal. We discuss these issues in turn.
7 Leyba contends that the district court erred by denying his
motion to suppress the video-recorded statements he made
after he invoked his right to counsel because the detectives
didn't honor his request for counsel. We conclude that
the court properly denied the motion, albeit for somewhat
different reasons than those on which the district court
relied. See People v. Aarness, 150 P.3d 1271, 1277
(Colo. 2006) (an appellate court can affirm a district
court's ruling on different grounds). 1. Additional
8 Detectives Morgen and Overton interviewed Leyba at a police
station house. The video shows Detective Morgen asking Leyba
his name, date of birth, and other background information
before saying the detectives wanted to question him. The
following exchange ensued:
Morgen: Furmen, uh, we want to go through your advisement of
rights. I would like you to come over here and look at this
if you're willing?
Leyba: Do I need my lawyer for this?
Morgen: Are you asking for one or not?
Leyba: I don't know what you [inaudible] are doing, like
you're just asking me a bunch of questions about my name
and stuff; I haven't been told shit besides what I been
seeing on the news and I don't know what the fuck
you're talking about.
Morgen: K, we're investigating a homicide that took place
two days ago.
Leyba: I know all that I mean, I mean, obviously I was around
the same crowd of people and all that so, I mean, but the
person you guys already caught hasn't told you what you
guys needed to know? Why does everybody else keep putting
people involved that didn't do shit. There was more than
just me there. [Inaudible] been the only one that's
sitting on me like a suspect or something, I didn't do
Morgen: So, I'll make this clear, are you willing to talk
to me or go through this form and talk to me about this case
Leyba: And I can ask for a lawyer anytime I start to feel
Morgen: Yes, sir.
Leyba: All right.
9 Detective Morgen then asked Leyba to read through a form
advising him of his Miranda rights and to sign in
various places to waive those rights:
Morgen: Okay. I need you to be able to fill this out though.
Okay? So the first question is do you read, write, and
understand English? You answer "yes" or
"no," please. And just follow along. If you have
any questions, I'll be happy to answer 'em for you.
Leyba: I'm fucking stressed out, man.
Morgen: Okay. So starting with number one, read this. Okay?
Then read two, three, and four. And after you get done with
that, read this. You agree to it, yes or no. Okay? Go ahead
and sign, please. Okay. And then I need you to read this
little paragraph here and if you agree to it, sign, date, and
time, please. Okay.
then spoke with the detectives for about two hours.
10 Leyba moved to suppress his statements from the interview.
At the hearing on the motion, Detective Morgen testified that
he had intended to stop the interview when Leyba answered
"Yeah" to his question "Are you asking for [a
lawyer] or not?" but Leyba "kind of rambled
11 The district court denied the motion, finding that
Detective Morgen adequately advised Leyba of his rights,
Leyba didn't unequivocally invoke his right to counsel,
and Leyba continued the ...