People v. Marko
434 P.3d 618
Colo. Ct. App.2015Background
- On Oct. 2008 Robert Marko (a soldier) was investigated after online contact with a missing 19‑year‑old woman; over several interviews he ultimately admitted sexual activity, assault, and killing the victim and led police to the body. A search of his barracks produced bloody clothing and a knife with the victim’s DNA. He pleaded not guilty and not guilty by reason of insanity (NGRI).
- Three court‑ordered interviews occurred Oct. 11–13 (some pre‑ and post‑Miranda); Marko was held temporarily on base under military procedures during parts of the investigation. He made inculpatory statements on each date and later confessed at the sheriff’s office.
- A court‑ordered sanity exam at the state mental hospital produced a prosecution expert who concluded Marko was sane and characterized Marko’s account as malingering; defense experts testified to legal insanity.
- A jury convicted Marko of first‑degree murder (after deliberation), two counts of sexual assault (vaginal and anal), and two counts of attempted sexual assault (vaginal and anal); he was sentenced to life without parole plus additional terms.
- On appeal Marko raised multiple challenges: suppression of statements and barracks search, juror challenges and voir dire misconduct, admissibility of psychiatrist testimony arising from the court‑ordered exam, constitutional attacks on the NGRI statutes, prosecutorial misconduct, sufficiency of sexual assault evidence, merger, and multiplicity.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Marko) | Held |
|---|---|---|---|
| Were pre‑Miranda statements admissible (custody/voluntariness)? | Officers acted reasonably; statements were voluntary and Miranda warnings were given when required. | Marko was effectively in custody under military orders and coerced; some statements occurred pre‑Miranda or after invocation of rights. | Court held Marko was not in custody during pre‑advisement portion, did not validly invoke silence or counsel, and statements were voluntary. Suppression denied. |
| Was the barracks search warrant valid and must evidence be excluded? | Warrant complied with military authorization; execution in good‑faith; exclusionary rule not warranted. | Warrant invalid under Colorado statutory/constitutional requirements because issued/authorized by military magistrate and orally rather than reduced to written oath. | Court upheld admission under good‑faith/ military‑procedure rationale; even if invalid, objectively reasonable reliance justified denial of suppression. |
| Did prosecution expert’s sanity‑exam testimony improperly opine on guilt/credibility (statutory self‑incrimination limits)? | Testimony was within scope to rebut NGRI and explain expert’s sanity opinion; limiting instruction was given. | Expert’s statements improperly went to substantive guilt and credibility and violated §16‑8‑107 and privilege against self‑incrimination. | Court agreed some statements improperly addressed wrongfulness but found error harmless beyond a reasonable doubt; expert could evaluate veracity of defendant’s accounts as bases for the sanity opinion. |
| Do attempted sexual assault convictions and the two sexual assault counts stand (merger/multiplicity)? | Prosecution maintained separate counts were proper. | Attempt counts are lesser‑included offenses and sexual assault counts duplicated; convictions violate double jeopardy. | Court agreed: attempted sexual assaults merge into completed offenses and one sexual‑assault conviction (anal) vacated as multiplicitous; remaining convictions otherwise affirmed. |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (Miranda custodial‑interrogation rule)
- Dickerson v. United States, 530 U.S. 428 (U.S. 2000) (confessions voluntary standard remains constitutional)
- United States v. Leon, 468 U.S. 897 (U.S. 1984) (good‑faith exception to exclusionary rule)
- Heien v. North Carolina, 574 U.S. 54 (U.S. 2014) (reasonable mistake of law can support Fourth Amendment reasonable suspicion)
- People v. Herrera, 87 P.3d 240 (Colo. App. 2003) (limits on use of court‑ordered sanity‑exam information; unitary NGRI procedure upheld with statutory limits)
- People v. Harlan, 8 P.3d 448 (Colo. 2000) (strict elements test for lesser‑included offenses and merger doctrine)