*1 factors, suspension generally mitigating “(a) appropriate lawyer knowingly a when: Colorado, PEOPLE State of perform services for a client and
fails Plaintiff/Appellant, client; injury injury potential causes or to a (b) pattern in a lawyer engages or a injury potential or neglect inju- causes LaFRANKIE, Benjamin Leslie ry to a client.” Standards 4.42. ABA On Defendant/Appellee. hand, censure public the other is warranted No. 92SA476. negligent lawyer “when a and does not diligence represent- act with reasonable Supreme Colorado, Court of client, injury potential and causes or En Banc. injury Id. at 4.43. to a client.” Oct. respondent note has not We disciplined in previously twenty over
years 9.32(a). practice. Id. More-
over, cooperated has respondent grievance proceed- committee in these
ings, 9.32(e), he has id. demonstrat- remorse, 9.32(Z). aggravation,
ed id. at offenses, multiple 9.22(d),
there are id. at respondent
and the experi- has substantial law, practice 9.22(i).
ence in the id. at previously public
We have found a cen- appropriate
sure to be even where the mis- pattern neglect,
conduct has involved neglect where the has extended over
long period time, lawyer when the has prior history discipline
no the actual
harm caused the misconduct has been
slight. Podoll, People See (Colo.1993); 1392-93 People v.
Smith, (Colo.1993); Nelson, 352-53
(Colo.1993). accept stipu- We therefore
lation, agreement, and conditional admis-
sion of misconduct. Some members of the
court, however, reject the stipula-
tion.
III.
Accordingly, hereby it is ordered that Joseph Berkley
Martin publicly cen-
sured. It is further ordered that Berkley
pay the costs of proceeding $53.40,
amount of days within after opinion,
the announcement of this
Supreme Committee, Court Grievance Street, 500-S,
Seventeenth Suite Dominion
Plaza, Denver, Colorado 80202. *2 Hunter,
Alexander Atty., M. Dist. Wil- Nagel, liam F. Deputy Atty., Chief Dist. Boulder, plaintiff/appellant. Vela, David F. Colorado State Public De- fender, Lucas, Deputy John State Public Defender, Boulder, defendant/appellee. Opinion Justice SCOTT delivered the the Court. People bring interlocutory ap-
peal pursuant 16-12-102(2), to section 8A (1986), asking reject C.R.S. we determination of the trial court and reverse suppressing its order statements made to police by the defendant. After examin- circumstances, district court concluded that because defendant was interviewed obtaining for the a confession reasonably and because the defendant be- leave, lieved he was not free the defen- interroga- dant was to a custodial reasons, tion. For these and due to the fact failed to advise rights, defendant of his the dis- Miranda1 granted trict court the defendant’s motion suppress. We find sufficient evidence to support the trial court’s determination that defendant’s statements were made Arizona, 1. Miranda v. interrogation, of a custodial and ac- that he knowledge
course believed had cordingly computer we affirm. of the recent theft because LaF- rankie regarding had made statements I. anyone theft plant, before else at ex- *3 below, April 10,
On cept president general manager, and (LaFrankie), Benjamin Leslie LaFrankie knew about the incident. LaFrankie denied questioned Longmont by was knowing anything about the whereabouts regarding comput- of a the theft computer. detectives of the stolen then Officer Scott employment, from er LaFrankie’s if asked LaFrankie he would to a consent Tech). High Manufacturing (High Tech search of house. his LaFrankie he said detectives, Brian Scott The Lee and Pat would allow such a search and admitted Goeke, singled question- out LaFrankie for computer the officers would find a ing provided by based on information there, man- said he did not but believe that the personnel High Tech agement at who sus- computer house at his was the one stolen pected that LaFrankie had committed disbelief, from In apparent the office. Of- theft because LaFrankie had access to the ficer Scott told LaFrankie that he was act- computer suspicious and had made state- ing as a “as nervous cat on a roof.” hot tin High personnel. ments to Tech explained LaFrankie then he was nervous recently purchased because he had a com- High The detectives arrived Tech at puter garage from a sale and $200 p.m. spoke 3:00 briefly about and possible computer pur- was he High personnel, management Tech’s includ- chased one that was the had been stolen president. meeting After with the plant. from the again Officer Scott indicat- officers, High manager Tech ed disbelief at LaFrankie’s story and told dispatched LaFrankie, to escort who was thought LaFrankie lying. he he was working floor, production on the majority of the interview was conducted in main administrative area where the detec- a similar fashion. For example, Officer waiting were just tives area outside Scott told LaFrankie not to worsen his mis- president’s Upon office. LaFrankie’s by take lying; that fail LaFrankie would arrival, the detectives identified themselves polygraph lying; test because he was and, presence High Tech’s man- big bright LaFrankie had “a sign on [his] staff, agement asked LaFrankie if he “had says you forehead that made a mistake LaFrankie, a few minutes to stating talk.” here”; story that LaFrankie’s too coin- that he straight- wanted to matter believed; cidental to be that LaFrankie out, agreed ened to meet with the officers. looked and sweaty nervous if he were —as management Still lying; that LaFrankie could as a be used staff, the were detectives directed to the “poster lying”; boy and that LaFrankie president’s office speak so that could checking had funds in insufficient his ac- privately with LaFrankie. Officer Scott de- purchase computer count to for $200 “very large” (fifteen the office scribed Nonetheless, cash. steadfastly LaFrankie feet) feet fifteen and “well-lit.” The through maintained innocence most detectives closed the office door and began the interrogation. questioning.2 their One detective sat in a chair next to However, LaFrankie other sat after about minutes of away. six feet Both type detectives were questioning, LaFrankie con- weapons armed but no were visible. having computer. Offi- fessed to stolen the began Scott interview, cer the interview explaining the course of the closed-door people to LaFrankie that frequently made LaFrankie never informed that he was thing mistakes that the best to do was free to that he leave or was not in official try and rectify “you the mistake custody. once Neither Officer Scott nor Officer your realize error.” Officer Scott stated Goeke advised LaFrankie of his Miranda tape-recorded 2. The interview was without were LaF- interview admitted into evidence knowledge. tape transcript hearing. suppression rankie’s and a Interrogation” Im- refers to words or during the interview. rights before however, confessed, part actions “on the officer mediately before that if he admit- informed that the officer ‘should know are reason LaFrankie was arrest- he would not be participation ably likely incriminating to elicit an re ted his ” night, that a jail that but put suspect.’ sponse ed from in In issued in six would be felony J.C., summons terest of filed charges if 1993) Innis, weeks (quoting Rhode Island v. theft, confessing to the After 291, 301, 1682, 1689, him. U.S. his home detectives to led the (1980)). Here, undisputed L.Ed.2d 297 it is his home to to search allowed them question designed computer. the stolen recover incriminating from to elicit information *4 Thus, only question LaFrankie. of a charged theft in was custodial whether more, in violation thing of value of $300 nature. 18-4-401(l)(a), 8B C.R.S. of section 27, 1992, served with a May he was On Custody filed is not limited to those subsequently He appear. to
summons and the a formal arrest has his confession situations which suppress a motion to April place, 10 but also situa as a result of taken includes those evidence obtained person interrogated and Goeke. Officers Scott tions where “has interview with 30, 1992, the hearing significantly deprived on of his freedom After a November motion granted LaFrankie’s People Trujillo, district court of action.” v. 784 suppress, finding (Colo.1990). that LaFrankie An to 791 interrogation with- subjected to a custodial if a in the sus custodial of his Miranda having been advised position out he is de pect’s would believe that the order of the district rights. We affirm any sig prived of his freedom of action sup- to LaFrankie’s motion granting Horn, 818; way. nificant 790 P.2d at ac press. Cleburn, 782 P.2d 786 People cord
(Colo.1989).
determining
rea
whether a
II.
in the same situation
sonable individual
of his
significantly deprived
would feel
Arizona, 384 U.S.
Under Miranda v.
action,
must consider
a court
freedom
478, 479,
1602,1612,1629,
436, 444,
surround
totality of the circumstances
(1966),
ob-
evidence
16 L.Ed.2d
including the follow
interrogation,
interro-
the result of a custodial
tained as
ing factors:
against a defen-
gation may not be used
unless, prior
questioning,
to
the defen-
dant
time,
en-
purpose
right
that he has
dant is warned
counter;
during the
persons present
silent,
he makes
any
remain
statement
spoken by the
interrogation;
the words
him,
evidence
may be used as
defendant;
officer’s
officer to the
attorney pres-
right
to have
he has
demeanor; the
general
of voice and
tone
ent,
right to have an
that he has the
interrogation;
length and mood of
him if he cannot
attorney appointed for
of movement or
any limitation
whether
People,
afford one. See Jones
placed on the
form of restraint
other
(Colo.1986) (statements made
1270, 1275
interrogation;
during the
admissi-
interrogation are
during custodial
any questions asked
response to
officer’s
given a Miranda
only if defendant was
ble
defendant;
directions
whether
by the
Here,
advisement).
dispute
no
there is
during the
given to
any of these
LaFrankie was
advised
verbal
interrogation; and the defendant’s
question
Thus,
rights.
if the interview
to such directions.
response
or nonverbal
interrogation,” the
“custodial
constituted
Thiret, 685 P.2d
People
inter-
as a result
evidence obtained
Horn,
P.2d at
1984),
Horn,
quoted in
People v.
suppressed.
must
view
be
P.2d at 791.
Trujillo,
(Colo.1990).
that LaFrankie’s statements
there
mean
needs to be
time when
unteered”;
was told he
and that LaFrankie
person is advised
their
You
potential polygraph test.
fail a
it
you
don’t need to do when
are investi-
competent
hold
this evidence is
We
you
asking questions
are
gating and
suppression.
Our
support
order
you
figure
out
is
trying
are
what
by People v.
supported
decision
on. You don’t need
do it
if
(Colo.1990),
found
where we
709 43, (Colo.1988). 49 A to be easier on court must examine probably going if certainly totality no There are the circumstances on a you admit....” case- promises. style by-case The to determine threats or basis whether the Mi- overt ap- questioners protections apply. People was an randa by the v. Wal- used lace, 670, (Colo.1986); in the low-keyed, People 724 P.2d 673 proach which view, Thiret, certainly 193, (Colo.1984). in the sense of v. Court’s beating yelling or all of are to there isn’t a While courts consider factors such things that could have as the those kinds of encounter and the technique general a tech- tone of voice and happened_ demeanor of the officer, fairly key interviewing nique which was low id. we have subjective to be calculated to held officer’s is not somebody’s appropriate mil as well state of mind is not an stan- overfbear] determining there is no evidence before the Court dard for whether an individual defendant’s that would indicate that the has been of his freedom of move- significant way. Wallace, mental condition was utilized ment in physical or 674; Black, any inappropriate People All of P.2d at manner.... (Colo.1984); put together, People Johnson, of 768 those factors (Colo.1983). lead the Court to the P.2d the circumstances the statements are not conclusion court, Although the trial at the outset of therefore, and, involuntary ... the Court order, correctly objective states this test believe that the statements does not deciding whether the defendant inwas product involuntary inter- were the custody, the remainder of the order raises added) (emphasis rogation. serious as to doubts whether the court attempt to court order does not correctly applied that test in this case. apparently conflicting descrip- reconcile its First, clearly laboring the court was under hand, the interview: on the one tions of assumption trig- the false trial court found the conversation was gered purposes for Miranda whenever a highly “accusatory” as a cus- when viewed designed to elicit a con- hand, yet, tody question, on the other problem fession.2 The with such a view of involved found that same conversation is that it shifts the focus of the Miranda statements, key” and only true was “low custody inquiry from the test of not “calculated to some- over[bear] person in the defen- what a reasonable body’s viewed as a voluntari- will” when believe, subjec- dant’s situation would to a question. ness rejected by this inquiry, previously tive court, of mind of the inter- into the state II See, Black, viewing e.g., officers. per- whether a The test 768; Corley, 698 P.2d setting is in a custodial is “whether a son (Colo.1985)(finding no custodial inter- suspect’s position *8 rogation despite the fact the investi- deprived of his free- consider himself would gating officer “focused” on the defendant way” during police significant in a a dom suspect). as a interrogation in which the defendant was majority opinion the trial exposed to the risk of self-incrimination. The finds Probasco, 1330, “misleading” of Miranda People v. view Milhollin, (Colo.1990); light apparent People v. harmless that court’s confess, passage get order was to the 2. The relevant of the trial court’s defendant to reads as follows: is about and is what custodial investigation transcript you Court has a of the The If are that is what Miranda is about. interrogation and the Court’s conclusion going somebody are who to interview get there to the is that the officers were ... from, you try at to a confession tell them that he stole this com- defendant to of their That least have to advise them about_ puter. That is what this is The otherwise, about, Miranda is what Miranda is to the Court's of the encounter indicates view anything. doesn’t mean the of the interview Court that since record exclusively upon other factors. The re issue based almost reliance on its con- for exam majority, police otherwise. The clusion the veals officers intended ple, points clearly that the trial court from the outset procure out a confession. however, “accusatory majority, considered the tone” The cites several other key decision. interview as a factor its “factors” mentioned in the order as exam- order, ples read in application trial court of the trial court’s The correct reveals, however, entirety, while the custody example, test. For majority points communicated their belief to the fact that the trial them, lying that the defendant was court described the interview as transpiring “low-keyed” president’s manner. More did so office in fifteen-by- over, accusatory the officers followed such fifteen foot room. majority While the statements what trial court chose to view that as highly with fact relevant truth,” decision, deemed “statements of such custody finding to be places “few intimidating as that the would from potentially benefit more or coercive to being police. with the place honest an than employ- individual one’s n, technique ment,” maj. 706, court op. described interview there is no approach” anywhere a “soft that was not “calculated indication in the record that the sombody’s Finally, placed un- gloss will.” trial court a similar on the over[béar] Indeed, iike in office dimensions.3 the majority’s 1990), assumption officer in interviewing place where work is some- one’s charges formed inherently “intimidating” the defendant that “poten- how regardless him tially generalization be filed the de coercive” is a false responses, fendant’s here re record not an accurate statement of the law.4 despite veals that officers’ accu Moreover, majority opinion omits to tone, satory LaFrankie was told that he mention the fact that the defendant testi- custody would not into “unless be taken he he fied that remained in office with the committed a murder.” police largely due to fact that the com- managers The trial court’s focus on the “accusato- pany whom worked asked ry” tone cooperate and content of the interview its investigation. him to issue, analysis custody employment obligations when con- normal give Where approval trasted with its of the officers’ employee’s rise to restrictions on an free- move, approach” “soft under its voluntariness dom to such restrictions will not in analysis, suggests that support themselves that the em- misreading Probasco, fatally ployee custody. of Miranda infected its is in 795 P.2d at reasoning is, 1334-1335; in this case. That the trial Immigration accord & Natu- appears to have decided ralization v. Delgado, Serv. emphasizes majority precedent rejects 3. The the factual similari- 4. The relevant federal such a Horn, citing; employment among sweeping ties case between this view of the context in custody analysis: things, other the dimensions of Upon inspection, room in case. each closer place where an takes however, distinguishable the two cases are conclusively does establish the important ways. example, majority For custody. deprivation absence of A of free- eight-by-twelve cites foot dimensions of the may dom take at one's home as well as room in Horn as indicative that the of the fact Texas, station. Orozco trial court in this case must have found the U.S. fifteen-by-fifteen foot dimensions relevant in its token, By the same at the analysis majority issue. The fails *9 police Oregon may station be noncustodial. however, mention, key some in facts Horn 492, Mathiason, 711, 97 S.Ct. 50 distinguish it from the case at hand: in (1977)_ Determining L.Ed.2d 714 if there Horn, specifically pointed the trial court out that deprivation has been a entails freedom eight-by-twelve foot room was “windowless" simply something identifying the more than a secured “located in area of the basement interrogation. Horn, police 613, Jones, (8th station." 819. F.2d United States v. 615 630 Cir.1980), Carter, provided No such quoted additional information is in in United States v. 368, (8th Cir.1989). the trial order in court this case. F.2d 371
7H (1984)(“Or 1758, triggered that custodial by police procure intent to a confession. their people are at work dinarily, when meaning move has been freedom to restricted, by not the actions of law
fully
Ill
officials,
by the workers’
enforcement
but
obligations
employers.”);
to their
voluntary
summary,
support
In
the record fails to
Dockery,
applied
determination can be found two instanc- first, explains the court that the
es: when to the defendant
police officers’ statement taken into
that he would “weighs a murder
unless he committed custody,”
against finding that he is
second, erroneously the court states present approach" again, provides important taken Horn con-
5. Once Horn, example, thirty-minute case. In duration trast to this the relevance of explained thirty-minute that the dura- trial tion of the interview was is at best unclear. significant "because of highly confrontational nature of the encoun- the ter.” light P.2d at of the "soft