People v. Harris

The PEOPLE of the State of

Colorado, Petitioner, HARRIS, Respondent. Antonio

No. 86SC285. Colorado, Court of

En Banc. July 1988. Rehearing Aug. Denied 5, 1988.

Certiorari Denied Dec. See 109 S.Ct. 541. that com- Finally,

ness. the court held during prosecution clos- ments made argument relating to the defendant’s ing a witness went call his wife as failure to on a lack of beyond permissible comment granted prosecution's We evidence. affirm the court of certiorari and now writ appeals. I. sexually as- two men

On June campus of on the Boulder a woman saulted The victim University of Colorado. description relatively gave a detailed Gen., Woodard, B. Atty. Charles Duane never men, she said she had whom two Howe, Gen., H. Richard For- Deputy Atty. to pursuant On June seen before. Gen., Atty. man, Stapp, Peter J. Asst. Sol. 41.1, order for nontestimonial Crim.P. Gen., Denver, petitioner. for the was issued identification evidence Miranda, Robinson, Gerash, Miller & defendant, The order2 Antonio Harris. Denver, Robinson, re- P.C., H. Scott of the by Detective DeLaria executed spondent. Department Police University of Colorado 7, 1984, who served the defendant June on ERICKSON, Justice. he had construction site where at a Boulder Antonio Harris was convicted Defendant The authorized working. order assault, first-degree sexual jury a samples, pubic scalp and taking of blood (1978 18-3-402(3)(a), & 8 C.R.S. section photographs, samples, samples, hair saliva conspiracy to commit sex- Supp.), measurements, a fingerprints, foot-size 18-2-201, assault, 8 C.R.S. ual section requiring the exemplar, as well as voice (1978). appeal is primary issue on lineup. in a participation defendant’s by the defend- statements made of his Mi- the defendant DeLaria advised ant, of and had who had been advised him the transporting to rights while randa rights, and who was waived his Miranda1 Hospital explained Community Boulder 41.1 order custody pursuant to a Crim.P. exchange talk and that he could to Harris identification, should be for nontestimonial DeLaria told police. information with constitutional suppressed as violative of his ques- cease the defendant that he would reversed rights. The court lawyer. De- requested him if he a tioning conviction, finding pro- that statements ask Harris proceeded then to Laria Harris execution of cured from on actions and whereabouts tions about his in viola- 41.1 order were obtained Crim.P. response night of the assault. rights constitutional tion of the defendant’s provided de- the defendant questions, these under the against illegal search and seizure been, he had whom regarding where tails of the United States fourth amendment with, he had been and what he had been II, 7 of the and article section Constitution doing. Harris, Constitution. Colorado questioned en route (Colo.App.1986). The 729 P.2d way hospital, on the hospital, at the appeals also concluded court of lineup at the itself. lineup, to the restricted cross-ex- improperly trial court defend- after the questioning ceased rebuttal wit- amination of Arizona, first-degree assault ted the crime of 1. Miranda v. sexual identification the results of the nontestimonial determin- procedures be of assistance in would According were reasonable there ing committed the crime. whether Harris grounds suspect that Antonio Harris commit-

(J53 is in less than the officer who arrived and asked attorney ant’s testified asking questions. DeLaria cause. stop defendant was interrogation of the that his “part plan” in he intended A.

get information from him. 721, Mississippi, In 394 U.S. Davis v. arraignment, defendant moved the After 1397, 727, 1394, 22 676 89 L.Ed.2d S.Ct. to suppress to his statements Detective (1969), suggested the Supreme DeLaria, interrogation arguing ex- narrowly procedures, circumscribed the Crim.P. under beyond scope the tended proba the denied mo- limited based on less than 41.1 order. The trial court intrusions conclusion, arriving constitutionally In at this the might permis tion. ble following findings: the de- court made the by this adopted sible. Crim.P. 41.1 exceed the detention did not fendant’s response the court to Davis.3 While order; the order scope of the Crim.P. 41.1 Supreme Court has never United States ruse; the sole motivation for was not constitutionality of expressly addressed procure those obtaining the order was to procedures, it has reaffirmed that such order; by defend- items authorized may permit procedures fourth amendment in compli- ant’s statements were obtained Hayes to in Crim.P. 41.1. v. similar those Miranda; waived ance the defendant 817, 1643, Florida, 811, 470 U.S. 105 S.Ct. rights; the statements Miranda 1647, (1985); Dunaway 84 705 v. L.Ed.2d by the defendant to the officer were made 200, 2248, 215, York, New 442 U.S. 99 S.Ct. voluntary. 2258, (1979). 824 L.Ed.2d reversed trial The court Madson, (Colo.1981),this court 638 P.2d 18 the defendant’s court and concluded that constitutionality 41.1. upheld of Crim.P. rights against search constitutional because the and seizure had been violated 1. interrogation preplanned of the defendant The asserts that the nature and limited exceeded the limited more 41.1 order is not made of a Crim.P. P. 41.- contemplated intrusiveness Crim. asking intrusive Harris, 1. at 1002. court P.2d “lies at warnings by tions. This claim the crossroads also found Miranda Amendments,” Fifth taint dissipate do not of a the Fourth themselves 591, Illinois, 590, though even v. fourth amendment violation Brown (1975), voluntary. 45 L.Ed.2d 416 statements were otherwise S.Ct. and ori- requires Id. examine nature us to gin of Crim.P. 41.1 context II. seizures searches and general rule probable cause. must be on based the defend determining whether right of provides: “The fourth amendment response ant’s statements made ... people persons their to be secure interrogation, pur while he inwas and sei- against searches unreasonable order, suant to a Crim.P. 41.1 should be zures, violated, no War- shall not be as the fourth suppressed violative issue, upon rants shall but counterpart, and its amendment Colorado rights applicable These are cause....” initially must decide amend- through the fourteenth officer, the states executing iden a nontestimonial Ohio, 643, 81 367 U.S. interrogate Mapp ment. is authorized to tification (1978); 1969, Idaho adopted § 13-3905 rule 41.1 Ariz.Rev.Slat.Ann. 3. In October this court Procedure, (1987); chapter 810 the Colorado Rules of Criminal Iowa Code § Code 19-625 Fingerprinting.” The (1987); "Court Order for entitled to -3307 § 29-3301 Neb.Rev.Stat. adopted version of Crim.P. 41.1 current (1985); to -282 §§ N.C.Gen.Stat. 15A-271 adopted rules At least five other states have relating identification. See to nontestimonial (1961).4 mers, L.Ed.2d 1081 452 U.S. 101 S.Ct. execution of an order for nontestimonial (1981) (detention permitted L.Ed.2d 340 interrogation constitutes seizure under flight ensure that will not occur if incrimi- II, the fourth amendment and article sec found, nating evidence is to minimize risk tion 7 of the Colorado Constitution. Mad police, orderly and to facilitate the com- son, 638 P.2d at 31. pletion search); Pennsylvania Mimms, 434 U.S. 98 S.Ct. Ohio, Terry v. (1977)(order get L.Ed.2d 331 out of United car recognized permissible States Court first de minimis intrusion after exception requirement that fourth lawfully car is detained for traffic viola- amendment seizures must be based tions; weapons justified frisk for after probable “stop cause. the frisk” Since and “bulge” jacket); observed Adams v. at issue in Terry was considered less se- Williams, 143, 1921, 407 U.S. 92 S.Ct. 32 vere than that involved in a traditional ar- (frisk (1972) weapons L.Ed.2d 612 for rest, the Court did not extend the tradition- suspicion). basis of reasonable Conse- concept general al of arrest—and the rule quently, for all but those circumstances requiring probable to cause make arrests Court, enumerated the “seizures are “reasonable” under the fourth amendment only supported by probable ‘reasonable’ if Rather, —to cover such intrusions. in an 214, Dunaway, cause.” 442 U.S. at 99 effort the limited balance violation of at S.Ct. 2257. privacy against individual the state’s inter- 721, Mississippi, In Davis v. 394 U.S. 89 prevention, est crime detection and and 1394, (1969), 22 S.Ct. L.Ed.2d 676 the de- safety police, in the of the 392 U.S. at fendant, rape suspect, brought was into 22-27, 1880-83, 88 S.Ct. at the Court estab- police questioning fin- station for and narrowly lished “a authority per- drawn gerprinting. At issue was whether the de- weapons mit a reasonable search for proba- tention of the defendant on less than protection police officer, where purposes fingerprinting ble cause for dealing he has reason to believe he is constituted an seizure of unreasonable individual, dangerous with an armed and person violation of the fourth amend- regardless probable of whether he has Supreme ment. The Court noted that the cause to arrest the individual for a crime.” designed pre- fourth amendment was “to 27, 392 at U.S. 88 S.Ct. at 1883. upon person- vent wholesale intrusions “Because Terry exception involved an security citizenry, al of our whether these general cause, requiring probable rule ‘investiga- intrusions be termed ‘arrests’ or Court has careful to maintain its [the] ” 726-27, tory detentions.’ 394 U.S. at 89 scope.” York, Dunaway narrow v. New (footnote omitted). S.Ct. at 1397 The Court 2248, 2255, 442 U.S. 99 S.Ct. also discussed the distinctions fin- between (1979); see, e.g., L.Ed.2d 824 United States gerprinting interrogation. and 221, 675, v. Hensley, 469 U.S. (1985) (brief Fingerprinting involves none permit- L.Ed.2d 604 detention ted suspect probing private where reason to believe was into an individual’s involved in a felony); Michigan v. thoughts Sum- and that marks an inter- life II, correctly 4. Article section 7 Colorado Constitu- Defendant asserts that we need not provides: address the issue under the fourth amendment tion police if we find that have violated the Security person property—searches and Colorado While it is true that the Constitution. people —seizures—warrants. shall be provision protects greater range Colorado persons, papers, secure in their and homes privacy interests than does the fourth amend- effects, from unreasonable and sei- searches ment, Oates, (Colo.1985), 698 P.2d 811 zures; any place and no warrant to search or adopted response because Crim.P. 41.1 any person things seize or shall issue without Mississippi, Davis v. 89 S.Ct. searched, describing place to be or the (1969), and our resolution of the seized, person thing may to be as near as require applica- here issues examination be, cause, probable supported by nor without Supreme precedent, tion of we decline to writing. oath or affirmation reduced to solely grounds. problem resolve the on state execution, fingerprint investigatory. and in Nor can rogation or search. expedition to ha- employed repeatedly upon detectives embarked this detention be individual, police hope something need since the evidence rass up. prints. might each turn person’s one set of Furthermore, fingerprinting is an inher- (citation at 95 S.Ct. Id. at 2262 and effective crime- ently more reliable omitted). footnote eyewitness than identifica- solving tool York, Dunaway v. New U.S. subject and is tions or confessions 99 S.Ct. L.Ed.2d 824 improper line-up as the such abuses Court, previous relying upon its degree.” Finally, because “third Brown, held decisions Davis and fin- danger is no of destruction of there seize a with when criminal need not gerprints, the limited detention transport out him to unexpectedly or an inconvenient come at interrogation, station for time. suspect’s rights violate the under (emphasis at at add- Id. 89 S.Ct. fourth and fourteenth amendments. Dun ed). at away, concluding acknowledge amendment that the defendant fourth While for it applied being lawfully custody, detained in this case was in is to a finger against that purpose obtaining nevertheless this standard sole prints, interrogation “under nar determine the Court stated that must circumstances,” rowly detention the defendant the execution of the defined purpose obtaining fingerprints for Crim.P. 41.1 order violated his constitution cause, probable rights. com may, despite a lack of al

ply fourth amendment. Id. One with the to ad

of the reasons Court declined “petitioner dress this issue was because the authorizing An order nontestimonial merely fingerprinted during the was not only is if there is identification warranted subjected ... but also to interro detention probable cause to believe that an offense (em gation.” Id. at S.Ct. at 1398 committed; there are reason- has been that added) in phasis (quoted emphasis amounting probable grounds, not to able at at 442 U.S. Dunaway, arrest, person suspect cause to 2258). Accordingly, court concluded commit- named or described in the affidavit the fourth the detention violated offense; the results of ted the and that Florida, also, Hayes amendment. See proce- specific nontestimonial identification 811, 105 L.Ed.2d 705 S.Ct. determining of material aid in dures will be person in the affidavit whether the named 41.1(c). Illinois, the offense. Crim.P. Brown v. committed requirements, de- these we have L.Ed.2d addition to fendant, such on less than probable without cause declared that intrusions arrested warrant, following cause should meet the given probable and Miranda without warnings, custody, taken into and trans- conditions: he made

ported station where First, there must an articulable and be inculpatory two statements. in crimi- specific suspecting fact for basis n quality noted that the arrest “had Second, the activity nal at the outset. purposefulness” stated: pur- scope, intrusion must be limited Third, the intrusion pose was obvi- and duration. impropriety arrest virtually justified law en- ous; by must be substantial awareness of fact was Last, must there be by the two detectives when forcement interests. conceded subject opportunity point in their repeatedly acknowledged, some and detached testimony, of their ac- the intrusion the neutral judicial investigation” “ques- scrutiny of a officer before tion was “for or may arrest, design be ad- tioning” evidence obtained therefrom .... both by fingerprints, palm prints, footprints, proceeding against mitted in a criminal measurements, the accused. specimens, urine blood samples, specimens, samples, saliva hair Madson, P.2d 31-32 (Colo.1981). fingernails, under specimens of material physical other reasonable or medical requires The rule also that a nontes- examination, handwriting exemplars, specify the timonial identification order samples, photographs, appearing voice procedures “nontestimonial to be conduct instance, lineups, trying on articles of' cloth- 41.1(e)(3).5 If, for ed.” Crim.P. only au ing. nontestimonial identification order taking suspect’s finger thorizes the of a provision This is not an exclusive list of prints, subjects officer also but a procedures. nontestimonial identification and hair to a seizure of saliva Nevertheless, interrogation the absence of samples, the action would exceed officer’s subsection, view, in this in our is no mis- failing comply scope of the order definition, interrogation, by take since 41.1(e)(3). The saliva and hair

with Crim.P. proce- identification” not a “nontestimonial samples presumably be inadmissible would acknowledged principle in dure. We this failing comply with Crim.P. 41.- Madson, where we stated: “The rule is 1(e)(3). Accordingly, 41.1 limits Crim.P. identification evi- limited to nontestimonial purpose of nontestimonial scope does authorize the ac- dence to those matters procedures identification quisition of testimonial communications specifically listed within the order. This privilege against protected self-in- statement view is consistent with our (citation 638 P.2d at 32 omit- privacy that limited intrusions into crimination.” Madson may ted).6 support on less than This statement finds when, squared the fourth amendment Mississippi, 394 Davis v. alia, intrusion “limited in inter is L.Ed.2d scope, purpose and duration.” 638 P.2d at found the fruits of a non- where 31. procedure identification to be testimonial inadmissible, part, the detention 41.1(h)(2) because Crim.P. states: interroga- included of the defendant also in- “Nontestimonial identification” cludes, to, is not limited identification tion. but 41.1(e) survey jurisdictions provides: with similar statutes A 5. Crim.P. authorizes interro- reflects that no such statute An to take into Contents of Order. order flatly pro- gation. Statute The North Carolina identification for nontestimonial police interrogation, requiring the or- hibits shall contain: person will not be sub- der to state: "That (1) description name or of the individ- any interrogation jected asked to make or give ual who is to the nontestimonial identifi- appear- period statement of his cation: except required identifica- ance for voice (2) any persons making names affi- 15A-278(6). predeces- A tion.” N.C.Gen.Stat. § order; davits for issuance of the Annotated statute to Arizona Revised Statute sor (3) concerning which The criminal offense 13-3905, passed shortly after Crim. which was § the order has been issued and the nontestimo- 41.1, interrogation P. does not address procedures to be conducted nial identification However, addressing permitted. the inter- therein; specified issue, rogation commentator noted: one (4) to whom the A mandate to the officer Clearly, procedure allowed section if the person directed to detain the order is constitutional, it must be 13-1424 is to be held necessary nontes- such time as is to obtain the Only identification; narrowly defined and controlled. those timonial procedures (5) authorized the court order typewritten printed names of the statute to issuing signature. be tolerated. To allow the judge should the order and his interrogation purposes on less be used for Pre-Arraign- Code of

6. The A.L.I. Model Penal an cause would be intrusion than Procedure, 170.7(4) (1975), provides: § ment area of communicative evidence that into the assuredly be unconstitutional. would person pursuant while detained to a non- No Comment, Taking Physical Evi- Detention For subject "ques- testimonial order shall be tioning” Cause, 14 Ariz.L.Rev. dence Without Probable in Subsection as that term is defined 140.8(5) of this code. I could exchange we could information^] DeLaria also going on.” tell him what is progeny did not and its Davis investigat- police were told Harris state, suggest, that all state do not and we he was seen and that ing a sexual assault suspect, who is and confessions of a ments area. in the obtaining nontesti- purposes detained intend- DeLaria reflects that The record pursuant narrowly cir evidence monial from the defendant. elicit information ed to are inadmissible. procedures, cumscribed 41.1 executing the that in DeLaria testified suspect who is detained A statement of a had questioning the order, may, un 41.1 pursuant to Crim.P. the de- plan.” Knowing that “part of the circumstances, admissible—for der some investigation, of the fendant was the focus a con example, initiates where from get information wanted to DeLaria and, police despite a lack with the versation designed questioning initial him. The voluntarily interrogation, of of coercion or rapport the officers develop so information. If the exclusive fers them out later.” details to “check could obtain 41.1 order is object executing a Crim.P. record attempted tape even DeLaria had evidence and the nontestimonial to obtain responses, but failed to defendant’s remarks, inculpatory which suspect makes suppression the recorder. At activate governmental result of coer are not the counsel’s cross-examina- hearing, defense cion, may not violate such statements following of DeLaria resulted tion view, an ex rights. our constitutional exchange: surround amination of the circumstances Q. tape your conversa- you Did record required suspect is ing the statement of a Mr. Harris? tion with exceeded to determine whether rele scope tape 41.1 order. Factors recorder failed. A. I tried but to this determination include: sub vant tape? Q. you get anything on Did executing jective intent of the No, on the A. I didn’t turn button. order; objective assessment of the offi him if he Q. have asked You must and cir light of the facts cer’s actions in- being raped the woman he him; identity of known to cumstances vestigated raping? initiated the conversation party who No, A. I didn’t. suspect’s inculpatory state led to a Q. Why not? confession; physical and the envi ment or Well, ground work laying I when such state A. was ronment of for it. made. ments were ground What do Q. Laying the work? subjective examining DeLaria’s you mean? 41.1 executing the Crim.P. intent listening to Developing rapport, A. reversed the trial appeals court of listening his say, he had to what the interro ruling and characterized court’s story. Harris, “preplanned.” People v. gation as Al (Colo.App.1986). Q. trying to see wheth- Okay, you P.2d 1002 were pro give you was a bunch 41.1 order er he could though the Crim.P. maybe you could check the court of legitimate purpose, details cured for a them, explore out or police offi details correctly held that the those right? 41.1 order the Crim.P. cer’s execution of put the defendant a ruse intended correct. A. That is might talk. The de position where he technique, isn’t it? Q. Investigative job into fendant was taken Yes. A. immediately transported to site. He was slowly, right? Q. Kind of reel them hairs, head pubic hospital for removal Whatever, sure. A. After hairs, samples. and blood and saliva ability as a using your Q. you are rights, Okay, reading defendant his Miranda us, detective. he could talk Harris told him “that site, requiring an order him Right. job served with A. body, of his to various intrusions submit Q. Fine form on this occasion? hospital seizures of various taken to a Right. A. samples, and then bodily fluids and hair Q. questioned You must him more have for additional taken to the station report given you than is knowledge that he seizures—all with way hospi- folks all the went not free to leave. Under the facts of tal, hospital were at the then [and] case, conducting a custodial this full-blown Department? went to C.U. Police cause, interrogation, on less than No, period A. this is over a of time like prescribed guise narrowly under the we in the car and then while were 41.1, violated the procedures of Crim.P. waiting for the examination and rights under the fourth amend- defendant’s Department then back at the Police II, 7 of the Colora- ment and article section going and were over some of the we do Constitution. details. the trial court’s We will not overturn B. findings they supported are of fact when asserts that after by adequate evidence in the record. Peo knowingly voluntarily the defendant (Colo. ple Corley, v. 698 P.2d rights, questioning waived his Miranda 1985). however, findings, Factual “must him did turn the Crim.P. 41.1 “not valid clearly be set aside when are ‘so erro Having into arrest.” con order support neous as not to find ” cluded that the Crim.P. 41.1 order did not Johnson, People record.’ 653 P.2d interrogate authorize DeLaria to the de (Colo.1982) (quoting Page fendant, we must determine whether Mi Clark, P.2d Colo. warnings sufficiently randa attenuated (1979)). The record that DeLa- establishes illegally expanded taint of the detention to interrogate ria intended to the defendant defendant’s statement admissible. render when he executed the Crim.P. 41.1 order. Accordingly, set aside trial court’s undisputed proper It is Miranda findings. contrary warnings given to the defendant and were case, “voluntary” that his statements were this DeLaria initiated the conver- purposes sations that resulted in the defendant’s in- of the fifth amendment. culpatory Illinois, statements. He did not ask the Brown v. questions exemplar to obtain an the Court stat- relating to further other ed that the fourth and fifth amendments execution of the 41.1 order. The frequently appear to coalesce since “the

tioning way of the defendant was in no con- ‘unreasonable searches and seizures’ part associated with a concern on DeLaria’s Amendment are al- demned the Fourth safety general for the or the himself always most made for the of com- Indeed, public. the defendant was not pelling give against evidence him- a man and, DeLaria, according handcuffed was self, which in criminal cases is condemned cooperative. From the time the defendant 601, in the Fifth Amendment.” at Id. was served the order at his work site he (quoting Boyd S.Ct. at 2260 v. United was in DeLaria’s and was not free States, 616, 633, 524, 534, S.Ct. to leave. (1886)). 29 L.Ed. 746 The interests and policies exclusionary served the rule un- was, effect, using

DeLaria a nontesti- the amendment differ from der fourth monial identification order to conduct a cus- those under the fifth amendment. served interrogation probable than todial on less 601, Brown, 422 at 95 S.Ct. at 2260. U.S. simply cause. Crim.P. 41.1 does not autho- “[Ejxclusion made without of a confession intentionally rize a officer to regarded warnings might as purposefully elicit information from a crim- Miranda be who, Fifth Amend- suspect, probable necessary inal than to effectuate the on less cause, ment, unexpectedly up fully sufficient picked from his but it would case, detention, warnings, pur- In this protect the Fourth. Miranda evidence, pose obtaining of a confession made nontestimonial exclusion them, sufficiently de- do not alone illegally expanded without to elicit testimonial violation.” Id. ter a Fourth Amendment relating to crime evidence under inves- (footnote omitted). pur- Voluntariness tigation questioned the when DeLaria de- is therefore poses of the fifth amendment way hospital. The fendant on the requirement for fourth only a threshold making began inculpatory re- analysis. Dunaway v. New amendment sponses immediately almost thereafter. York, 442 99 S.Ct. U.S. any intervening This left no time for cir- 60 L.Ed.2d 824 and the de- cumstances between arrest Finally, Brown, fendant’s statements. the interro- stated that is- was, by product gation a confession is a on less than sue of whether depends admission, on the facts of each a free will intended to elicit DeLaria’s own at 2261 case. 422 U.S. at 95 S.Ct. information from the defendant. States, 371 (citing Wong Sun v. United The statements of the defendant resulted U.S. 83 S.Ct. illegal expansion of the Crim.P. from (1963)). determining a confes- whether intervening event 41.1 order. Because no by exploiting illegal sion obtained the causal connection between broke arrest, the Court noted Miranda state- police illegality and the defendant’s important factor but not warnings are an ments, dissipated. illegality was not In this factor to be considered. McCall, peti- 623 P.2d at 404. “To admit case, given proper Mi- the defendant was confession in such a case would tioner’s warnings. Detective DeLaria elabo- randa enforcement officers to violate allow ‘law the de- warnings and told rated those impunity, safe the Fourth Amendment him if stop questioning he fendant would knowledge could wash want to answer additional he did not ‘procedural safeguards’ their hands in the attorney. are tions or if he wanted an We ” Dunaway, the Fifth.’ however, not, convinced that the Miranda omitted). (footnote at 2260 We by il- warnings purged the taint created interrogation therefore conclude legally expanding the defendant’s deten- his fourth amend- the defendant violated tion. rights. ment follow The Court in Brown set forth the determining ing additional factors by exploi a confession is obtained III. temporal of an arrest: “The tation contends that confession, proximity of the arrest and the concluding that appeals erred in court of circumstances, intervening presence of of a rebuttal cross-examination defendant’s and, flagran purpose and particularly, the grayA limited. improperly witness was rele cy misconduct are all of the official Harris, defend from Lonzo jacket seized 603-04, S.Ct. at 2261-62 vant.” Id. at brother, investigation of during the ant’s omitted); (citations Dun and footnotes see intro kidnapping, was aborted an unrelated at 2259. away, 442 U.S. at prosecution. at trial duced Brown, con concluded that the the Court help establish at trial to jacket was used there was fession was inadmissible because in this two assailants identity of the significance” be intervening of “no event testified that second case. The victim confession, and the arrest and the tween Lonzo jacket. a had worn blue assailant had probable that the arrest without Fortenberry, the de Harris and Ricardo it “quality purposefulness” of because a cousin, implicated were fendant’s admittedly expedition for was an evidence which occurred kidnapping, aborted something hope that “in the undertaken The two rape in this case. night after the 604-05, 95 S.Ct. at might up.” turn Id. at kidnappers, descriptions of the 397, men fit the 2262; People, 623 P.2d McCall v. see Fortenberry confessed day, the next (Colo.1981). and retrial, care upon to a should be taken

his involvement in the abduction Fortenberry unnecessarily friend. also told friend limit on cross-examination jurisdiction. that he intended to leave affecting credibility of a wit- matters Harris were later Fortenberry and Lonzo agree. ness. We Oakland, arrested in California. P.2d 274 People Loscutoff, Ricardo Forten- The record indicates that (Colo.1983), that the constitution- we noted berry strongly the defendant resembles right and cross-examine wit- al to confront mistaken for the and that he had been au- tempered by nesses is the trial court’s just days the victim’s two before thority prohibit cross-examination description Fortenberry fit the assault. wholly matters irrelevant and immaterial to assailant, corresponding closely the second course, court, The trial issues at trial. height weight, having in both and and scope to determine the has discretion mustache, shiny” wearing his hair “wet or cross-examination, People v. the limit of just gel, being strongly cologned from Homan, 185 Colo. 521 P.2d the assault. addition a few hours before discretion, its rul- and absent abuse characteristics, chemical physical to the review, ings will not be disturbed on Peo- Fortenberry fell into testing revealed that (Colo.1982). P.2d 230 ple Raffaelli, percent population who the two Here, the issue was identification of critical the source of the semen that was could be alleged accomplice. the defendant and his gray jacket A recovered from the victim. attempting to im- Defense counsel was as- similar to the one worn the second peach the so as to advance his witness sailant in this assault was said have questions theory of misidentification. by Fortenberry. worn on occasion been to whether on cross-examination related Ownership jacket recovered from of the Fortenberry Ricky wore Lonzo Harris important therefore Lonzo Harris was jackets the same size and whether two determining identify of the assailant. view, it is not clear traded clothes. our Hamilton, a friend of Antonio Har- Lee the cross-examination exceeded ris, testified that he had seen Ricardo For- scope direct examination.7 More- of the once, tenberry jacket than wear the more over, attempt- defense counsel was because never, it. but had seen the defendant wear credibility of the wit- ing impeach cross-examination, defense counsel On ness, on matters related cross-examination you telling Ms. asked: “Do recall Cracraft permitted. have jacket to the should though Lonzo was on October 10 that even 611(b); Frezquez, 186 CRE cf. Ricky than wore the shorter both (Colo.1974). P.2d 146 Colo. jackets?” prosecution same size ob- asserts that defense jected question, going beyond the to this as an offer of failing to make counsel erred objection scope of direct examination. The provides, pertinent proof. CRE was sustained. Defense counsel then part: you asked: “And did not tell Ms. Cracraft ruling. (a) Error Effect of erroneous Ricky on October that Lonzo upon ruling may predicated not be prosecu- clothes?” The sometimes traded evidence unless which admits or excludes objection tion’s was sustained on the same party is affect-' right substantial make an grounds. Defense counsel did not ed, and proof offer that the statements had ac- tually been made. ruling (2) In case the of Proof. Offer that the de- The court of noted evidence, excluding the substance is one failed to that the limita-

fendant had show as made known manifestly prejudicial, but stated of the evidence tion was discretion, may, 611(b) provides: The court in the exercise 7. CRE inquiry as if on permit into additional matters Scope of Cross-examination. limited to the direct examination. Cross-examination should be added.) subject (Emphasis matter the direct examination affecting credibility the witness. matters testimony by provision “precludes This apparent was from the court offer or spouse against for or the other without one questions were context within which spouse.” People the consent of the other asked. 660, (Colo.1987). Lucero, 747 P.2d view, the of the evidence In our substance ease, the defendant had an absolute this the context of the apparent from wife, permit right not to call his proof was not neces- and an offer of tions testify. Permitting commentary on her to trial Accordingly, we reverse the sary. right of that the defendant’s invocation court. damaging privilege to the than al no less lowing alluding to an accused’s remarks IV. See, of the fifth amendment.8 invocation 657, Charlton, 90 Wash.2d e.g., State v. next contends that The defendant (1978).9 P.2d 142 improperly permit the trial court acted during closing argu ting prosecutor, ap- the court of Accordingly, we affirm ment, invo on the defendant’s to comment peals. privilege. principle spousal

cation of the ROVIRA, Justice, dissenting: trial, testimony that the During established jog that he was defendant told DeLaria from Part II.B. of respectfully I dissent up he went ging campus on to sober before majority opinion, which holds like him his wife did not home because voluntarily Harris made while statements tes drinking. The defendant’s wife did not he was in lawful for execution of During closing defendant. tify, nor did the sup- have 41.1 order should been Crim.P. prosecutor repeatedly com argument, pressed. on the fact that the defendant’s mented Illinois, 422 U.S. Brown v. point during testify. did not At one wife (1975), Su- prosecutor stated: closing argument, obtained preme Court held that statements story Harris’ is fabri- The rest of Antonio amendment, even in violation of the fourth you that? Think cation. How do know voluntarily purposes if made it it.... And he did because about amendment, only if the admissible fifth are he drinks. That gets wife mad when “sufficiently making of the statements enough care of. The easy to take seems purge primary an act of free will T he you, get could tell mad when wife illegal seizure. 422 U.S. at taint” of the drinks, night had drink- and that he (quoting Wong 95 S.Ct. at Sun running and when ing and so he went out States, 471, 486, 83 S.Ct. United jogging had left the house he he (1963)). The Court 9 L.Ed.2d ever testified. pants.’ No wife explained that: se, per (1984 warnings, alone and 13-90-107(1)(a), Miranda 6 C.R.S. Section sufficiently the act always make provides: cannot Supp.), part, break, for Fourth product of free will to shall not be examined for A husband purposes, the causal connec- Amendment consent, her nor against his wife without the con- illegality tion between against her husband with- a wife for or every They cannot assure fession. consent; marriage nor out his Amendment viola- case that the Fourth examined shall either be or afterward unduly exploited. tion has not been as to the consent of other without (emphasis at 2261 made one to the any communications original). marriage.... during other time, Defendant, other al- first raises urges for the us to follow

8. The Medina, relating prosecution's leged P.2d 702 190 Colo. misconduct prosecution’s grant comment argument. which also involved closing we did not Because case, testify. how- issues, In that on a wife’s failure ever, will not address on these certiorari statutory invoke his the defendant did not them. 13-90-107(l)(a). right under section declined, however, adopt a It is clear from the record before us that The Court rights remain si- following Harris understood his rule that statements made per se attorney present lent and to have an In- illegal an arrest must be excluded. knowledge and that with full stead, questioning, following the Court announced voluntarily rights of these he chose not to test: cooperate them instead to with exercise but a confession is the question The whether not con- DeLaria. We therefore need be product Wong a free under of will Sun responses gave cerned that Harris answered on the facts of each must be product might have unreliable as the single dispositive_ case. No fact duress, Harris was unaware of or that warnings important are an The Miranda investigation DeLaria the nature of the factor, sure, determining to be wheth- conducting. Harris’s statements were by exploita- er the confession is obtained spontaneous—in which ease it is clear they But are tion of an arrest. nei- they would have been admissible—but only not the factor to be considered. improvident ill- ther do reflect an temporal proximity of the arrest and the solely cooperate decision to be- considered confession, intervening presence Harris of a lawful circumstances, and, particularly, pur- police officer. pose flagrancy the official miscon- duct all are relevant. requires also that the court con- Brown intervening sider events or 603-04, at 95 S.Ct. at 2261-62. defend- passage of time between the giving warnings, under of Miranda making the state- ant’s arrest and his case, suggests of this the circumstances might the causal con- ments have severed strongly rather that Harris’s decision to the arrest and the subse- nection between product talk DeLaria was the of his with agree I quent making of the statements. free will. that no majority’s view notable with sup- at the Detective DeLaria testified questioning interrupted DeLaria’s events pression hearing serving Harris that after Harris and that Harris made the state- transported with the Crim.P. 41.1 he began. shortly questioning after the ments tests hospital Harris to the where several Finally, “particularly, consider we must way performed. were to On the flagrancy of the official hospital, proper read the Miranda warn- he emphasis of that misconduct.” Court’s if ings emphasized to Harris and that even where, especially important as factor is rights remain Harris chose to waive his here, are not concerned with determin- attorney present dur- silent and to have an violation has ing whether a constitutional ing questioning, he could decline to answer occurred, whether we should but any question propounded. DeLaria ad- suppress statements a defendant conceded- dition, once the explained DeLaria voluntarily knowing ly has made after questioning began, Harris could terminate intelligent right of his to re- waiver completely if he desired and interview main silent. attorney request that he could before suppressing cases statements continuing questions. After be- those answer amendment, informed, the fourth agreed to talk with for violations of ing so Harris DeLaria, the United States point which DeLaria informed both illegal police clearly found investigating a sexual this court have Harris that he was warranting University of misconduct the sanction place assault that took on the exclusionary rule. Brown v. Illinois campus and that Harris had been Colorado itself, at the back the defendant arrived having identified as been near scene stranger apartment to see a time the crime was door of his the crime at about the pointing gun at him from inside explained Harris then that he committed. Chicago stranger—a evening apartment, drinking had been and was which il- and searched running policeman—had did entered “out it off” because his wife officer, brandishing legally. Another also him not like to drink.

663 deception gaining entry to exercise in weapon, approached Brown from be- his employ he was un- into the defendant’s home and to hind informed Brown that and condemning illegal trickery the in their efforts to extract an arrest. der seizure, suppressing incriminating in statement from him. and and This search subsequently type made of official misconduct le- Brown belies statements custody police, exemption the gitimate claim from the while in exclusionary concluded that manner sanctions of the rule. the Court “[t]he gives Brown’s arrest was effected which 623 P.2d at 404. appearance having been calculated the questioned That DeLaria should not have surprise, fright, and confusion.” Harris is mandated decisions of the 605, 422 at at 2262. U.S. 95 S.Ct. United States Court that are con- York, 200, 442 Dunaway v. New U.S. now, however, trolling. question The is the 2248, (1979), L.Ed.2d 824 and in 60 extent to DeLaria’s actions which demand Alabama, 687, 102 S.Ct. Taylor v. suppression the sanction of so as to deter 2664, acting police L.Ed.2d 314 73 future violations of this sort. See United tips the of informants on uncorroborated Calandra, 338, 347, v. 414 States U.S. prob- defendants into without took (1974)(“[t]he S.Ct. 38 L.Ed.2d 561 interrogating able cause for the [exclusionary] prevent, rule is calculated to that statements them. The Court held repair”) (quoting not to Elkins United suppressed, each made should have been States, U.S discussing police in the misconduct the and (I960)). emphasized police that action majority opinion concludes that the ‘quality purposefulness’ “had a in that it finding district court erred no miscon- admittedly ‘expedition was an for evidence’ part questioning duct on the of DeLaria something hope undertaken ‘in the Harris the execution of the Crim.P. ” might up.’ Dunaway, turn U.S. at support finding, of that 41.1 order.1 Brown, (quoting 99 S.Ct. at 2259 majority suggests that the Crim.P. 41.1 2262). 95 S.Ct. at See also part improper as of some order was utilized Taylor, 457 U.S. at 102 S.Ct. at 2668. exploit Harris plot to detain McCall, Finally, People 623 P.2d get incrimina- custody to Harris to make (Colo.1981), investigat- officers ting statements. Close attention to ing possible murder discussed “how record, however, nothing reveals more sin- might incrimi- suspects three be made to diligent utilizing detective ister than a they nate themselves before were taken question potential witness opportunity to custody.” P.2d at 399. The offi- into apparently willing suspect who appeared at McCall’s house cers then provide what information he could. officers overcame where—after majority finds that: parents’ objections to McCall’s P. 41.1 order was Although the Crim. by telling parents tioning of their son legitimate purpose, the for a procured was not a and was McCall correctly held court of separated officers under arrest—the of the Crim.P. police officer’s execution parents interrogated from his McCall put a ruse intended to 41.1 order was that the statements McCall him. We held might position he in a where from those made and evidence derived talk. suppressed, have been statements should added). (emphasis At 657 explained: and we procurement respect to the depicts choice With evidence a deliberate [T]he that DeLa- record demonstrates part of law enforcement officials found, case is abso- evidence in this pertinent part: but the different The trial court lutely undisputed that the officers’ clear suggested had that the 41.1 If the evidence pure- getting this 41.1 order was motivation officers en- order was a ruse that get order ly simply what the 41.1 position gaged get in ... to Mr. Harris in get.... provided might could might result he talk then the where the crime help investigation only tangentially—if at further participated ria majority’s leading question. to the decision in construal of all—in discussions Arai, Gary suggesting any- testimony to obtain the order. Neither as DeLaria’s applied to the court for the especially detective who in thing more than that—and in provided the affidavit among order who of some finding these facts evidence thereof, attorney support nor the district too much into DeLa- nefarious ruse—reads its prior the affidavit to sub- who reviewed ria’s words. mission, question suggested that DeLaria Second, intent to to find that DeLaria’s executing the order. defendant while the during of the question Harris the execution addition, it be inferred from the In cannot police misconduct is itself substantial order the intended or record that either of two consideration under renders the fourth question Harris. expected DeLaria to flagrancy of miscon- Brown—the short, finding pro- the trial court’s nullity. It is difficult to duct—a virtual part of of the order was not curement which an offi- imagine circumstances under con- get to Harris to talk is ruse in interrogation of a cer’s record. supported clusion would be pursuant to a Crim.P. 41.1 order then focuses its attention majority culpable DeLaria’s conduct here. less than in subjective mental state exe- DeLaria’s today presented with a case We are not concludes, apparently, cuting the order and “cal- acted a manner which question that DeLaria intended because surprise, fright, and confu- culated to cause order, he he executed the Harris when Brown, 422 U.S. at 95 S.Ct. at sion.” the order as a “ruse” must have executed here, Nor are confronted as we 2262. circum- question Harris under coercive McCall, delib- with authorities’ were above, purported As noted stances. erate, trickery in preplanned deception and perfectly have included the ruse could not obtaining suspect. By from a statements proper procurement of the order question interpreting DeLaria’s intent DeLa- place. Thus it must have been first justi- of misconduct that Harris as the sort that question intent to Harris alone ria’s statements, the suppression of Harris’s fies he improper “plan” constituted majority applies a rule intended to deter carrying out. that police misconduct a case which agree majority’s inter- I cannot not “rise to the level misconduct did reasons. pretation of the evidence two requiring flagrant misconduct conscious or First, apart simple fact that De- from prophylactic exclusion of [defendant’s] question Harris while Laria intended Rawlings Kentucky, statements.” executing there is no evidence 2556, 2564, 65 L.Ed. questioned not have that DeLaria would 2d 633 DeLaria de- him for the order but judg- reverse the Accordingly, I would take layed investigation until he could on the issue ment of the court incrimi- advantage of the order to extract should have Harris’s statements whether fact, nating from Harris. statements suppressed.2 personally that he did not DeLaria testified but, suspect in the case

consider Harris a rather, thought he Harris “could have And, majority too.” as the

been a witness notes, pursue question- DeLaria did not asking Harris

ing point crime: DeLaria was con- committed the background interview to ducting a routine having prosecutor’s comments clos- majority opinion, whether the 2. The concluded light improper. ing argument interrogation were of the defendant violated his majority’s amendment rights, goes resolution of the fourth on to consider fourth amendment issue, majori- necessary do not think it of a I whether the defendant's cross-examination ty since there is the latter two issues improperly limited and to consider rebuttal witness was of the State The PEOPLE Petitioner,

Colorado, HUMES, Randy Respondent. L. No. 87SC115. Colorado,

En Banc. Sept. Rehearing Denial of As Modified on 11, 1988. Oct. Smith, Atty., F. L.

James Dist. Steven Bernard, Deputy, Brighton, Trial for Chief petitioner. Brown, Arvada, respon-

Michael D. dent. Bar, Defense James

Colorado Criminal Boulder, England, for amicus curiae Colo- rado Criminal Defense Bar. YOLLACK, Justice. appeal, People

In this seek reversal County of the Adams District Court’s order affirming county suppression court’s evidence of blood alcohol test results ob- prosecution. Based on our tained Greathouse, holding People 742 P.2d (Colo.1987), reverse and remand the proceedings. case for further

I. April Randy Lee Humes was Influence, Driving Under the

arrested 42-4-1202, of section 17 C.R.S. violation (1984 Supp.). time of his & 1987 At the arrest, sample of Humes’ blood was ob- express pro- consent pursuant tained statute visions of Colorado’s motor vehicle alcohol con- order to determine his blood 42-4-1202(3), tent. 7B C.R.S. See § 0.333, The blood alcohol test result legal limit.1 Humes significantly over the alleged person’s 0.10 or more that those errors will be alcohol in such blood is little likelihood Accordingly, express repeated in a new trial. I grams per of alcohol one hundred milliliters opinion either of those issues. 42-4-1202(2)(c). no presumption of blood.” A § applies driving impaired the blood while when presumed driving to be under 1. An individual is the influence of alcohol when "the amount of

Case Details

Case Name: People v. Harris

Court Name: Supreme Court of Colorado

Date Published: Jul 5, 1988

Citation: 762 P.2d 651

Docket Number: 86SC285

Court Abbreviation: Colo.