People v. Trujillo

The PEOPLE of the State of

Colorado, Petitioner, TRUJILLO, Respondent. Theodore Alex No. 01SC434. Colorado, Court of

En Banc. July1,2002. General, A. Salazar, Attorney Laurie Ken General, Attorney Booras, Assistant First Section, Division, Justice Criminal

Appellate Colorado, Attorneys for Petitioner. Denver, Broomfield, Almony, Colora- Trinh Suzan do, Respondent. Attorney for Opinion of BENDER delivered Justice the Court.

I. Introduction a defen whether consider

In this case may be dant's or to theory of defense rebut used than the other a witness testify.1 The not does when the defendant to attend defendant, Trujillo, failed Theodore County and a in Jefferson proceeding a court was He his arrest. issued for warrant warrant on the in Denver arrested thereafter Jefferson bail bond violating his Denver, custody in County case. While warnings, given Miranda2 being without and po incriminating Trujillo made was a war there he knew officers lice for his arrest. rant in Jefferson prosecuted then Trujillo was violating bail bond crime of County for the thе state- ruled court The trial conditions. following Miranda not made ments were testify trial. Trujillo did warnings. of- rested, the defense After through fered to rebut police officer testimony of a cog- poor possessed he Trujillo's defense not know did ability and therefore nitive prosecu- appeal the hearing. On about evi- alternative argues in the tion Tru- admitted properly dence testimony. jillo's wife's Arizona, on the granted question: certiorari 2. Miranda 1. We giv- voluntary 16 L.Ed.2d (1966). statement ''Whether a to im- warnings be used can before Miranda en testifying defen- than a witness other peach dant." appeals The court of reversed the memory, convic- had taken past, Ritalin in the grounds tion on the special took education classes school. improperly were admitted at trial Similarly, Trujillo's wife, Shelly Trujillo, tes- to rebut defense witnesses other than the very tified that her forgetful husband is People Trujillo, dеfendant. 30 P.8d 760 that she takes organizing care of the house- (Colo.App.2000).We hold that a defendant's hold, including keeping track of her hus- unwarned, voluntary, custodial statements obligations; band's such as court dates. may only impeach be used the defendant if Shelly Trujillo's day-timer page February for If he testifies at trial. the defendant does 3, 1997 was admitted into evidence. It re- trial, testify at such not flected that her husband had a appear- court not used either to rebut ance scheduled in February Lakewood on 3. theory impeach defense or to a witness other It did not reflect that he was scheduled to Trujillo than the defendant. Because did not appear in Golden. trial, testify at the admission of his custodial Shelly Trujillo's testimony vague was error, was and our inconclusive. She Trujil- that either testified review of the record leads us to conclude that lo did not tell her the date or that she correct beyond was not error harmless a reason- incorrectly. had recorded it point, At one Hence, able doubt. affirm the decision of attorney Shelly defendant's Trujil- asked appeals the court of judge- reverse the lo if her husband told her the date he had to ment of the trial court and to return this case be in court when he returned home from the to the trial court for a trial. new preliminary hearing. prosecutor object- The grounds ed on the question that Proceedings

II. Facts And called Below hearsay. for The court held that the answer 3, 1997, February Trujillo On was sched- prove was not offered to the truth of the appear County uled to in Jefferson Court matter asserted and was therefore not hear- appear Golden. He failed to and a warrant say. Shelly Trajillo's answer did not indicate was issued for his arrest. The warrant was that' her anything. husband told her She then County transferred to Jefferson District usually stated that he tells her about court Trujillo subsequently Court. arrested hearing dates after a and that if he did not February on 1997 at the Warwick Hotel | ' her, tell she day-timer would write it in the in Denver. when she found out about it later. arrest, Following police his two officers Trujillo questions asked giving without first After the close of the defendant's him warnings. Trujillo told the testimony offered the of Ser- officers that he geant understood there was a war- David Fisher to Shelly Trujil- lo's and to rant for his Trujillo's rebut defense arrest and that at the time of the fleeing arrest he was California. that generally he is keep unable to track of appointments his and was unaware of the suppression A hearing was held a differ- appearance scheduled court February ent case in Denver District sepa- Court on charges rate arising February from his arrest in Denver. That court determined The trial court separate did not hold а Trujillo's that statements were in vio- taken suppression regarding the admissi- hearing Miranda, lation of and could not be used bility Trujillo's statements but allowed ar- during prosecution's case in chief as sub- gument on this parties issue out of the stantive evidence of the guilt. presence jury. also re- court However, the court also ruled that the state- rulings ferred to of the Denver District voluntarily ments were made and could be regarding Trujillo's Court admitted on rebuttal pur- Although ments. the Denver court ruled poses if the defendant testify. were to Trujillo's that statements would be admissi- At trial in County Court, Jefferson District testified, ble him if he Trujillo testify. mother, did not His Alice trial court this case ruled that Trujillo, testified poor that her son has a statements were admissible as evidence to Trujillo of the crime of jury convicted defen- that theory of defense rebut was also He conditions. violating bail bond appear- his court about not know did dant аnd sen- criminal a habitual adjudicated learning disabilities ance because years. The for six imprisonment addition, tenced trial court memory. In poor reversed conviction appeals court of tran- District the Denver that noted adjudica- eriminal the habitual and vacated were indicate the seript did Trujillo's unwarned grounds on the tion involuntarily made. improperly admit- were Thereafter, Sergeant Fisher testified The court reasoned ted at trial interview, Trujillo told post-arrest during a holding in Supreme Court's United States a war- there was Trujillo knew Fisher Tilinois, day of his and that on arrest rant for his (1990), the use of precluded L.Ed.2d fleeing to process in the arrest he to rebut unwarned statements California. other witnesses testimony of defense the prosecution closing arguments, the During defendant. than the Trujillo's unwarned argued ap- court of appeals the prosecution The of rea the mens element ments satisfied court. holding to this peals' find, Trujillo required to is "knowingly" that violating bond bail of the crime guilty of Analysis III. that be- argued prosecution conditions. that Tru- Sergeant Fisher Trujillo told

cause argues that Theodore prosecution that he and of the warrant statements jillo aware Trujillo's was state, knew about he fleeing the Shelly properly admitted were he failed County court date Jefferson also testimony. The days earlier: nine to attend Theodore argues that he that his defense to rebut were admissible mental prove culpable you is how [ TJhis disabilities, of know, cognitive not due did is way prove that .... the best state February appearance on court And what own statements. person's Trujillo's state- that parties concede Both he That statements? are the he was illegally since obtained ments were his arrest was a warrant knew there rights before his Miranda not advised fleeing to of process in the he was and that of agree that parties also making Both them. any clearer than get It doesn't California. Thus, voluntary. were Trujillo's statements and we proven this case have that. We nor police illegality of the you. Thank guilty. you find him action that ask neither are at the voluntariness And: issue here. "culpable mental state" says right here It first to requires us case Analysis of this prov must be is an element of course impeach- the terms of definitions consider is when inference the clear And en.... to the then turn We and rebuttal. ment fleeing-what did they says are someone custodial state- admissibility a defendant's the de position of say? is the What he prin- apply these general, and in basic fellow? What is a confused that he fense were Trujillo's statements ciples to whether finally say he is when did the admissible. say, he days Did later? captured nine Jeffco, spaced I "Geez, that court date Impeachment Definitions Of A.' No, he he said? Sorry." that what Is it. Rebuttal And knew there He fleeing California. mean, I his arrest. out for a warrant attack technique used to j is a Impeachment clear. that is Im- capacity of a witness. truth-telling by demon- accomplished may be peachment request, and not did The defense self-contradietion, bias, strating the witness' limiting provide, a instruction court did capacity, character, perceptive defect poor it purpose for which informing jury of the acts, by contra- or or bad prior convictions Trujillo's statements. was to consider dicting specific the witness on facts in her (providing at 997 example as an of when testimony. Strong, 1 John W. McCormick substantively not be used un (5th ed.1999). § Evidence 16-10-2201, prior der section "a statement of an accused taken violation of impeach This case involves rights his Miranda constitutionally and thus technique demonstrating ment the witness' admissible for the purpose limited im by proof prior self-contradietion her peaching the testimony"). accused's trial ment present testimony.3 is inconsistent with her Id. When with a impeaching impeachment by Unlike prior in prior statement, inconsistent it is axiomatic statement, consistent which involves prior inconsistent statements must concept proof made belong 34; testifying § to the witness. Id. present inconsistent with his tes Joseph McLaughlin Weinstein, M. & B. Jack timony, contrary rebuttal refers to (2d § Weinstein's Federal Evidence 6183.04[1] (1) meanings: two has "contradiction of 1997) ("To admissible, ed. ... the incon (2) party's witness," an adverse "[the sistent belong statement must person to the given party present time to a contradicto it."); State, ‍​‌‌​​‌‌​​​​​‌​​​‌​​​​‌‌​​​‌​​​​‌​​‌‌‌​‌‌​‌‌​​​‌​‍being impeached by Summers v. ry arguments." evidence or Black's Low ("The (1986) Nev. 718 P.2d (ith ed.1999). Dictionary The first permitting impeaching admission of goes contradicting definition specific requires inconsistent witness. The second definition refers to a impeaching prior inconsistent statements distinct section of a trial. It is evidence by be statements made the witness to be "explains, refutes, counteracts, or dis impeached."). proves put the by evidence the other law, impeachment At common evidence party." People Rowerdink, 986, v. 756 P.2d evidence, was not admissible as substantive (Colo.1988). 994 type This of rebuttal evi merely but truth-telling to attack the capaci generally dence nature, is substantive in ty Montoya of a witness. v. People, 740 P.2d may support party's case-in-chief, id., (Colo.1987). statute, by such However, presented and is after opposing party may substantively evidence also be used to presented has its evidence. Thomas A. prove an element example, case. For of Mauct, Fundamentals Techniques Trial of cases, 16-10-201, in criminal section 6 C.R.S. (1980). § 1.8 Rebuttal evidencе is admissi (2001),4 permits admission of the witness ble at the discretion of the trial court. prior inconsistent statement as substantive Rowerdink, 756 P.2d at 994. evidence of the guilt defendant's if the foun- requirements Despite dational above, of the statute are met. definitions set forth . statutory If the requirements impeachment terms of section 16- and rebuttal are some- met, 10-201 if interchangeably. or times used defendant's custo example, For are dial statements are not subsequent made Court, to the Denver District ruled warnings Miranda voluntary, Trujillo's but are then statements could be used "in are only to be considered as Trujillo rebuttal" if testified at trial For impeachment Saiz, People evidence. v. clarity in this case we will refer impeach- 441, (Colo.2001); P.3d Montoya, 740P.2d ment proof as the witness made state- below, 3. length As discussed at admissibility competent wise evidence and is admissible not of ques- statements is a constitutional purpose impeaching testimony for the preclude tion. The using issues witness, purpose but also for the of estab- illegally these obtained statements contra- as lishing testimony a fact to which his and the diction evidence other than self-contradiction as if; relate, statement inconsistent established Harris v. New York, 401 U.S. 222, (a) witness, testifying, given while an (1971). 91 S.Ct. 28 LEd.2d 1 opportunity explain deny the statement or give witness is still available to testi- further 16-10-201, (2001), provides: Section 6 C.R.S. trial; mony in the and Inconsistent witness-competency statement of (b) previous purports inconsistent statement (1) Where a witness in a criminal to relate to a matter within the own witness's previous trial has made a statement inconsistent knowledge. trial, with previous his at the in- may by any consistent statement be shown other- made, the defendant untarily and whether present testimo- his with inconsistent ments on the cireum- Depending at trial. rebuttal, testifies will we the term we use ny. When stances, above-that definition second on the focus altogether, offered inadmissible or refute to contradict presented which is or offered guilt, substantive party's case. opposing credibility. testifying defendant's and rebuttal Using the terms them, address here defined have as we If a defendant's whether in this case: the issue proper Miranda given pursuant are ments may be used voluntary, then the state warnings are and himself than other impeach a witness as substan generally admissible are are admissible these statements whether Miranda, evidence. tive and theory defense. course, rebut 1602. Of 86 S.Ct. at 384 U.S. the statement's will affect of evidence rules Admissibility A Defendant's Of B. hand, a defen admissibility. the other On Statements Custodial statements, irre involuntary custodial dant's warned is spective of whether the admis- a discussion turn now to We self-incrimination, are privilege against of his statements. sibility of a defendant'scustodial any purpose. not admissible must admissibility, courts determining When 385, 397-98, Arizona, 437 U.S. Mincey v. fundamental the defendant's always protect (1978); People v. L.Ed.2d 290 S.Ct. testify compelled to being privilege (Colo.1991). Branch, 805 P.2d embod- case as a criminal against himself U.S. Const. Amendment. Fifth ied in the custody questioned a defendant When Mozee, P.2d V; People amend. rights, his of his is not warned (Colo.1986). illegally obtained. are considered 1602; Miranda, privilege A criminal (Colo. Jordan, P.2d State to re permits him against self-incrimination statements, 1995). custodial unwarned Such interrogation while in the face of main silent voluntary, inadmissible are not whether or Miranda, trial. custody and at otherwise, case, or direct "government's a defendant 1602. Unless 86 S.Ct. at guilt." United substantive as Amendment Fifth fully of his warned is 628, Havens, 620, 100 S.Ct. 446 U.S. States voluntarily, and intelli knowingly, rights and (1980). Jor See also 1912, LEd.2d his custodial rights, those gently waives dan, at 1014. 891 P.2d illegally obtained are considered statements as substantive are inadmissible involuntary state custodial Unlike Draсon, People defendant.5 against state ments, voluntary unwarned custodial Mozee, (Colo.1994); 712, P.2d impeach at trial to may be admissible at 123. P.2d only is the This judicially defendant. the defendant's purpose for which recognized underpinnings fundamental these With may be voluntary statements but unwarned affect mind, rules which are several there York, at 225- 401 U.S. New Harris v. used. custodial unwarned a defendant's whether James, (1971); at 493 U.S. 26, 91 S.Ct. The trial. may at be admitted statements 1081; Branch, at 648; 805 P.2d 312, 110 S.Ct. sever- depends on rules applicability of these 490, P.2d Cole, factors, a defendant's 195 Colo. including whether People v. al at (1978). testifies If the defendant given pursuant are statements custodial with testimony is inconsistent and his are safeguards that constitutional Miranda's unwarned, voluntary, custodial the defen- protection of his designed to ensure admis are ments, prior then compulsory self-in- against privilege statements dant's Harris, 401 credibility. impeach his vol- sible are crimination, the statements whether at is well, compulsory against self-incrimination lege rights as other addressed 5. Miranda interroga- during right issue here. example to counsel However, privi- only Amendment the Fifth tion. 643; James, U.S. at 493 U.S. at well as the impeachment basic definition of 648; Branch, 1081; by prior S.Ct. 805 P.2d at inconsistent statements lead us to Cole, People v. 195 Colo. at 584 P.2d at conclude that a defendant's unwarned custo- may dial statements impeach be used to

the defendant himself if he testifies at trial C. When The Defendant Does may Not Testi- not be used other de- fy, His Unwarned Custodial State- fense witnesses.

ments Are Not Admissible As Sub- The Supreme United States Court has es stantive Evidence Of Guilt Or For tablished a line of holding cases that the Impeachment Purposes impeachment exception to exclusionary only permits

A rule impeachment unwarned the defen dant with may his own against not be admitted him statements. Miranda, defining case evidence. is Harris which created substantive exception. 86 S.Ct. 1602. Colorado ex Unless a defendant plicitly followedthe Harris rule in Cole.Nei waives his privilege against ther self-incrimination, Harris nor Cole considered whether the he shall not be compelled exclusionary precluded against be a himself at trial. A a witness with a non-testifying possesses defendant an right absolute not to Although statements. testify at trial. have not Her testify decision not to yet precise issue, considered this the United does not constitute a privilege waiver of her States question decided this Mozee, self-inerimination. 723 P.2d in James. In that specifical the Court at 123. ly prohibited using a defendant's unwarned Admission at trial of a defendant's a defense prior custodial as substantive witness when the testify. defendant did not proof guilt is tantamount compelling James, 493 U.S. at 110 S.Ct. 648. testify against defendant to himself. If the argues that waives privilege against his self- Fourth Amendment inapplicable case and is incrimination giving before by his statements However, here. reading a close of James acknowledging his rights tes demonstrates that its disposi- rationale is as tifying trial, ‍​‌‌​​‌‌​​​​​‌​​​‌​​​​‌‌​​​‌​​​​‌​​‌‌‌​‌‌​‌‌​​​‌​‍be admit tive when the statement was obtained in ted without offending the Constitution. On violation of the Fifth Amendment as when hand, other if his custodial state evidence is obtained in violation of the unwarned, ments are and the defendant does Fourth Amendment. upon James rests Su testify, admission of the defendant's cus preme precedent Court dealing with the ex todial statements as guilt evidence of during clusion "iMlegally of evidence obtained" in vi the state's rebuttal, case-in-chief during olation of both the Fourth and Fifth violates his privilege against James, Amendments. 312-13, 493 U.S. at Branch, self-incrimination.6 805 P.2d at (holding S.Ct. 648 . that statements ob 1081 tained as a fruit of an illegal search cannot Having decided that a defendant's be used to impeach a defense witness other unwarned custodial may statements not be than the defendant)(citing 401 U.S. Harris 222, 643, admitted as evidence, 91 S.Ct. rebuttal 1 (holding substantive LEd.2d that turn question now to the of whether such defendant's unwarned custodial statements may be impeach admitted to a properly admitted to defendant's witness other than the defendant. The perjurious testimony); Walder v. Unit Unit States, Supreme ed States 62, ed jurisprudence 354, 74 S.Ct. Court's only 6. The Colorado case to consider the issue of fendant as substantive rebuttal evidence. Evans, admitting a defendant's unwarned 630 P.2d at 96. The court relied on the Harris statements when testify the defendant does not line of cases which establishes that a defendant's Evans, People v. (Colo.App.1981). 630 P.2d 94 may unwarned custodial only ad- The appeals court of held in that case impeachment, that such mitted for not substantive evi- not be admitted the de- dence. Id. exclusionary rule as of rent rаtionale questions re (1954) (holding that L.Ed. 503 search-and- Fourth Amendment to applied properly unlawfully evidence seized garding per- ra explained, expose "[Tlhis It cross on seizure admitted violations. majori fact, the In testimony). the Fifth applicable to jurious trial seem would tionale explicitly to in refers ty opinion James Tucker, as well." Amendment context in eleven twice Amendment 447,94 S.Ct. 2357. Fourth atU.S. pages. . cases shows post-Harris of research Our reasoning of heavily on the relies recognize that James jurisdictions most that in Harris, Amendment a Fifth line of and Walder 'the Harris continues Walder, reasoning in a on turn is based context of either that in the to hold cases In Amendment case. Fourth Harris violation, illegal or Fifth Amendment Fourth in trial and at testified im may be used ly obtained voluntary consistent, but not for sub testifying defendant but peach a The Court him. were used See, e.g., United guilt. of stantive exception to aрplied 92CR322, 1992 WL Taylor, v. No. States in forth Walder. exclusionary rule as set 4, 249969, Dist. LEXIS *7 n. 1992 U.S. at there is persuaded that "not The Court (S.D.N.Y. 22, 1992); Sept. n. 4 at *13 a result that warrants principle in difference States, A.2d 886-87 in v. United Wilkes by the Court reached from that different Burris, 145 N.J. balancing (D.C.App.1993); State Walder adopted the and Waider" (1996).8 Instead 132-338 679A.2d Har Amendment violation. Fifth for a test 643. vis, 91 S.Ct. at Amend solely 401 U.S. the Fourth being rooted ment, rests on reasoning of James Harris ex following Walder Cases variety in a of cases balancing used test ex the notion press The bal exclusionary rule. applied the have exclusionary applies rule to the ception truth-seeking function ancing weighs the test Amendment Fifth in Fourth and equally deterrent effect with the a trial court Tucker, of Michigan example, cases. For evidence. excluding illegally obtained 433, 446, 41 L.Ed.2d 417 U.S. 648; James, 313-14, 110 S.Ct. at (1974),7 the deter- discussed the Court property when the stolen the location officers given full was not Tucker, In went to his house police officers enforcement warnings law and his statements excluded, « However, burglaries. Id. at 78-79. during investigate inter- were therefore Wal- jury proceeding who in which grand an alibi witness After a rogation he had named admitted, property incriminat- were police gave the information and the later ton's statements burglary charges. testified at trial He then The defendant defendant. ed the was indicted he testimony to im- was admitted suppress and the alibi's the statements a motion to filed Tucker, U.S. at peach the defendant. The the officers. obtained physical pleaded S.Ct. 2357. he suppress denied and motion ques- reserving charges, a certified guilty to the court. It upheld the trial Supreme Court suppress. Id. regarding the motion to tion of law the exclusion- deterrent rationale balanced 79-81. truth-seeking function ary with the Wal- held that Tennessee the alibi's to determine courts rights been violated had Amendment ton's Fifth per- expose be admitted to could interrogated with- custody and he was because S.Ct. 2357. testimony. jurious Id. cus- warnings. It also held all Miranda out Walton, v. 41 were argues State defendant made the 8. The todial statements (Tenn.2001), suggests re- a different evidence obtained inadmissible, S.W.3d but the physical holding this case. some than our sult interrogation admissible the a result of To as theory suggests a constitutional case extent Id. at 95-96. him. adopt reasoning we here. differing rights from the scope Miranda of with the Walton deals However, back factual question of law and the as a obtained physical evidence applied to distinguishes it from ground that court before present case poisonous tree." The ''fruit of the the deriv- whether Walton considered this case. excep- impeachment scope of the the considers physical applies to rule ative evidence regard to oral exclusionary with to the tion interrogation that violated seized as result testify. does not defendant when the at 78. Id. Fifth Amendment. the reasoning Supreme Court's the Walton follows do not which we with a result Elstad to reach warnings, Wal- Miranda benefit of Without the -----. infra, pages See take issue. and showed incriminating made ton Hass, 714, 722-23, Oregon peach v. 420 U.S. a defense witness when the defendant (1975); Michigan S.Ct. 43 L.Ed.2d 570 testify. does not Tucker, 2357; at U.S. S.Ct. support argument To its that James is a Harris, at U.S. S.Ct. 643. Fourth Amendment case that is not relevant here, prosecution argues the the ratio- Harris, In the Court determined that the Elstad, Oregon nale of weighed admitting test in favor of unwarned (1985), S.Ct. LEd.2d should impeachment pur- govern here and that appeals the court of poses prevent giving per- defendants from following case, erred in not it. In that jurious testimony at trial. It also held that Supreme Court held that the taint or the admissiоn of statements for such a limited scope poisonous 'of the "fruit of the tree" purpose encourage would do little to further involving doctrine a Fifth Amendment viola- improper police conduct. tion was much narrower than that which James, In applied balancing the Court involves a Fourth Amendment violation. test impeachment refuse to extend the unpersuaded by prosecution's We are exception exclusionary to the rule to all de argument. Since the 1954 Walder case inter holding fense In witnesses. that such an preting rule, the federal exclusionary Weeks9 expansion would "frustrate rather than fur precedent Court's has consis purposes ther underlying the exelusion- tently applied the balancing analysis rule," ary the Court reasoned that admission scope to determine of the impeach other witnesses would undermine exception irrespective of whether the state 'the promote deterrent effect and would not ment or contrary evidence was seized to the truth-seeking function court. Fourth or the Fifth Amendment. James, 313-14, 493 U.S. at 110 S.Ct. 648. It is the balancing test that Harris-James The Court also noted that governs analysis our here. The Elstad case other prior witnesses with the defendant's scope concerns the poison- "fruit of the - likely statements would chill the defendant's ous tree" regard doctrine with to Fifth and ability present his best defense. For ex- Therefore, Fourth Amendment violations. ample, may willing be less holding in Elstad irrelevant to our call witnesses for fear his own discussion in this case. ments will impeach be admitted to them. Id. By rejecting the rationale of Elstad with at 110S.Ct. 648. regard to this we do not imply mean to holding Elstad does not remain in We with reasoning agree the Su- full force and Recently, effect. the Court in preme Court that admission of a defendant's Dickerson, 428, 444, 530 U.S. custodial statements (2000), 147 L.Ed.2d 405 made clear that the defense witnesses other than the defendant warnings are rooted in the Consti would erode the deterrent effect of the exclu- Dickerson, tution. In the Court also noted sionary rule, doing perju- while little to limit approval with principle the Eistad that "un trial,. ry at If a defendant's unwarned custo- searches under the Fourth reasonable dial statements be admitted to Amendment are different from unwarned in witnesses, other defense then the exclusion- terrogation under the Fifth Amendment." ary severely rule would be eroded because a Dickerson, 120 S.Ct. 2326. defendant's custodial statements could be ad- We conclude that Elstad retains its fall vitali trial, mitted much frequently more ty disapprove of the court appeals' whether testifies ‍​‌‌​​‌‌​​​​​‌​​​‌​​​​‌‌​​​‌​​​​‌​​‌‌‌​‌‌​‌‌​​​‌​‍would have opinion to the might extent that the be read bearing no on the admission of his state- contrary. to the Hence, ments. following Supreme Court precedent, we hold that Fifth Independent Amend- of the constitutional doctrine ment exclusionary prohibits above, rule the use of discussed the fundamental rules of the defendant's unwarned im- by statements to inconsistent (1914). 9. Weeks v. 58 L.Ed. 652 States, United forth in Cole exeeption as set ment inconsistent proof that mandate Branch. person must be uttered statements us that Logic tells impeached. sought to be case, Trujillo's statements In this may be the statement speaker of only the voluntary. His statements unwarned but are is, by her own way, that in this impeached impeach his trial testi to may only be used Hence, if the statements. prior inconsistent against self- privilege mony if he waives cannot testify, then she not does defendant parties concede Both incrimination. earlier inconsistent by her own impeached be rights not waive his Trujillo did statement. No or at trial. police questioning during the suggests otherwise. record in the

evidence not be Hence, could Trujillo's statements Inadmissibility AOf Exceptions To D. the erime proof of used as substantive -. Custodial Unwarned Defendant's charged. Does Defendant When Statements Testify Not for the trial it was error hold that We custodial Trujillo's unwarned admit court to no federal reveals that research Our had that he rebut the defense statements un a defendant's has admitted court state not know that and did cognitive disabilities impeach oth statements warned appear in court. We supposed to he defendant witnesses when er defense statements that while the defendant's note exceptions. narrow testify, with two not does for his was a he knew there warrant or other psychiatric a when first occurs fleeing to California he was arrest and that opinion her about testifies expert contrary defense necessarily to his are not her, and told the defendant оn what based date, about his court not know that he did unwarned ample provided unwarned statements these opinion. a different lead ments would prosecution to ar- contrary evidence for occurs Wilkes, The second at 889. A.2d prose- untrue. The gue that the defense specifically testifies a defense witness when Trujillo's jury statements cutor told ie., her, told what the defendant about February 1997 consti- police on to Denver admitted, and he hearsay is had to be he he tuted evidence knew hearsay declarant impeached as be then February County Jefferson statements. with his own unwarned custodial Permitting use of (Tex. State, 904 S.W.2d Appling when as substantive upon to ad not called are App.1995). We testify would vio- at trial not does here. circumstances of these dress either privilege Fifth Amendment late the self-incrimination. Exception The Exclu- To Is No E. There alterna- prosecution's to the turn now We Admis- sionary Permits Rule Which Trujillo admissibility. did argument for tive Trujillo's Custodial Unwarned sion Of testify as to Shelly Trujillo testify nor did not Statements told her about specifically husband her what Thus, it would February date. 3 court Har- exeeptions to the of the two Neither trial court for the error be apply here. of exclusion ris-James to im- Trujillo's custodial statements admit out us to carve Rather, prosecution asks because Shelly peach exception proposed exception. The newa a defen- prohibits use Fifth Amendment use permit Harris rule expand the would to im- custodial statements dant's unwarned voluntary unwarned cus- but of a defendant's when peach defense to rebut defense todial testify. does the defen- other than impeach a witness or to the trial Additionally, would error the cere- it require exception would This dant. Trujillo's custodial to admit the United court that contravenes of a rule ation testimony be- holding Shelly Trujillo's reason- Supreme Court's States does a use ecausesuch a rule would Such and James. ing Harris impeachment. the definition not meet impeach- our own expansion of require also The Error Was Not F. Harmless warrant for his arrest and that he was flee- Beyond A ing Reasonable Doubt to California. prosecution admitted no ev- Having determined that constitutional er- additional case, idence Trujillo's to corroborate

ror in this we turn to the occurred police. Trujillo Denver testify. did not His question of whether the error was harmless. supplied direct type This case involves the of consti evidence that he knew there was a warrant tutional error known error-that for his arrest or fleeing that he was to Cali- " 'during presentation which occurred prosecution fornia. Additional evidence was jury case and ... therefore proving Trujillo's general dirеcted toward quantitatively be assessed the context of abilities, cognitive in helping wife's role presented other evidence ...'" Blecha v. him, supposed where he was to be on Febru- (Colo.1998) People, (quot P.2d ary participation and the extent of his Fulminante, ing Arizona v. scheduling hearing that was held the 113 LEd2d prior November. (1991)). appellate An court must assess the prosecution argued jury to the in clos- light error in of the other evidence in the ing that Trujillo's custodial statements con- " 'to case determine its admission is whether stituted guilt evidence of his of the crime of beyond harmless a reasonable doubt"" Id. violating bail bond conditions-that he knew Fifth Amendment subject violations are he was to County Jefferson Court on Fulminante, this trial error standard. February 3rd. prosecution 111 S.Ct. 1246. The Thus, our review of the record convinces bears proving the burden of Trujillo's us that Trujillo's the admission of unwarned custodial statemеnts did not con custodial statements was not harmless error tribute to his conviction or that the error was beyond a reasonable doubt and that the evi- beyond harmless a reasonable doubt. Ble likely prejudicial. dence was cha, 962P.2d at 942. If there is reasonable probability Trujillo could have been IV. Conclusion prejudiced error, by the then it is not harm discussed, For the reasons we affirm the less. Id. appeals decision of the court of to reverse the There are several appel- factors judgement of the trial court and to return late court should in determining consider this case to the trial court for a new trial. whether the error impor- was harmless:

tance of prosecu- statements to the Justice judgment COATS concurs in the only, case, and Justice KOURLIS and Justice tion's strength the overall prose- of the cution's probative join whether the value RICE the concurrence. сumulative, the statements was pres- and the COATS, Justice concurringin the ence or absence of corroborating or contra- judgment only: dictory evidence on the facts asserted in the I majority understand the to hold that if statements. Id. at 943. the admission of a statement in the case-in- One'of the two contested elements chief a defendant would violate the prosecution prove rule, needed to in this Miranda that statement cannot be used Trujillo case "knowingly" was that failed to even for purposes unless the appear February for the 3 court date. The testifies at trial. Because it seems pieces had two of evidence to clear to me that the satisfy the mens rea element of the crime. statement in this case did adequately Trujillo The first was that par attended and contradict any defense wit- ticipated in scheduling hearing ness, three I unnecessary consider it to reach the February months before piece 3. The second question broader majority. addressed of evidence was custodial statement Because I also have concerns about various police to Denver that he aspects knew there majority's discussion of im-

327 includes statements but prior inconsistent distinguish the bar failure to its peachment, Fourth including from the credibility, show- any challenge Mirando to of the interest, capaci- rule, proving a lack of ing its under or exclusionary and bias Amendment Illinois,1 remember, demonstrating I generally, ty perceive v. standing to of James untrustworthiness, of the court. judgment in or contra- reputation concur of a witness' dicting the substance majority's with the Initially, I take issue Strong, McCormick on John W. ments. See and "re "impeachment" between distinction (5th ed.1999)(relied by on § Evidence 33 in this case buttal," and its contentionthat 319). James, Supreme majority In at by imрeachment technique of only the volves through "impeachment referred 'to Court maj. op. at 319-821. See self-contradiction. impeach- contradictory rather than evidence" rigid of these terms its use I do not believe by prior inconsistent statements. ment usage jurisl in this comports with historical 315, James, Al 110 S.Ct. 648. at 493 U.S. diction, it does not importantly, and more contradictory admitted though evidence usage Supreme Court parallel United States impeach in to here. at issue formulating the doctrines in statement, the cases prior inconsistent own Havens, See, 446 U.S. v. e.g., United States 1912, developed the 559 relied that 620, 623, upon which James 64 LEd.2d 100 S.Ct. de con- impeaching approved of the (1980)(referring to evidence impeachment doctrine by illegally testimony ob- of trial credibility as "rebuttal tradiction evidence"); fendant's 222, 228, York, 91 Havens 446 physical 401 U.S. evidence. See v. New tained Harris (admitting J., 1912 (Brennan, 100 S.Ct. 643, dissent 1 28 L.Ed.2d S.Ct. Statеs, defen- to illegally obtained T-shirt characterizing United ing: Walder v. 354, 62, L.Ed. 503 74 98 S.Ct. 347 U.S. pieces having connection to denial of dant's exclusionary rule (1954), holding that as co-conspir- possession of found in same shirt from not bar the Government would 65, "rebut Walder, 354 ator); 74 S.Ct. testimony with tainted evi ting" defendant's unlawfully her- (admitting seized evidence dence). is unneces the distinction Because testimony that he oin difference between sary make clear the narcotics). the use of possessed Since never merely a witness and that discredits neither impeach involves physical evidence I avoid guilt, would evidence of substantive prior nor "self-contradietion" us matters not before potential impact on its majority's defi- defendant, restrictive than in omitting altogether.2 Rather it clearly not that is nition of by self-contra only impeachment volving agree I by the James court. intended diction, precisely be is us this case before "impeachment" is defined if course question whether ‍​‌‌​​‌‌​​​​​‌​​​‌​​​​‌‌​​​‌​​​​‌​​‌‌‌​‌‌​‌‌​​​‌​‍poses it cause by a witness' own contradiction include only can be used a defendant statements, by definition witnesses. other defense contradict impeached only person who can I statements. unwarned custodial with his generally understood is not Impeachment however, postula- not, majority's find the confronting a with do being limited to fense," testimony" is "intro 648, "rebuttal from 107 LEd.2d 676 1. 493 U.S. (1990). Muniz, v. impeach"); People duced solely (distinguishing (Colo.App.1980) 102-03 P.2d prominently, have Perhaps these terms most testimony alibi which refutes "rebuttal obligation over the of a debate been at the heart does not con involving witnesses, to endorse pronouncements credibil does attack the evidence but tradict alibi People v. arguably See inconsistent. that are matters," in ity witnesses on collateral of defense (Colo.1998) (Kourlis, J., P.2d Cobb, 962 concerning verаcity by attacking their finding but characteriz- dissenting: a distinction crime); defendant before of the the activities one," part slippery on ing "a based it as People, 424 P.2d 162 Colo. v. see also Palmer evidence); direct nature collateral versus (1967); People, 95 Colo. v. Schreiner (Colo.1986) v. 720 P.2d Terry, People (1934); Ingles People, 90 Colo. v. P.2d dissenting (Vollack, concurring J., in part Hamrick, (1931); 624 P.2d People v. Vollentine, P.2d 455 relying People 643 P.2d part: 624 P.2d distinguishing (Colo.App.1979), aff'd, "rebuttal (Colo.App.1982), (Colo.1981). a de- testimony" to "refute is introduced helpful definition tion of such restrictive Miranda rule to bar certain kinds of deriva deciding the intent of the evidence, exclusionary tive much like the rule, predetermines Breidenbach, People because it result. see 875 P.2d 879 (Colo.1994)(excluding marijuana plants as majority, Unlike the I do not believe the violation); Wayne fruit of Miranda 3 R. La- in Supreme United States James in- Fave, 9.5(b) al., Procеdure, § et. Criminal imposed by the tended to define limitations (1999), readily acknowledged have also the Miranda rule on use of defendant's T.C., People their differences. v. See 898 impeachment. for James forbade 20, (Colo.1995)(adopting P.2d 27 rule of impeachment of another with a Tucker), Michigan People Trujillo, v. v. 778 of the defendant had been statement (Colo.1989)(adopting P.2d 1086 rule of Ore illegally in obtained violation of Fourth ). gon v. Elstad prohibition against Amendment's unreason- so, doing openly rule, able seizures. In it bal- exclusionary Unlike the which exists truth-seeking objective legal anced the purpose protecting privacy of our for the of inter system against privacy protected deterring police ests future by violations of values by excluding prohibition. "the rule evidence seized unrea constitutional seizures, violation Fourth Amendment." sonable searches and the Miranda 311, 319, 110 Despite U.S. S.Ct. 648. privilege against rule protects self-in by barring Court's reference to both Fourth and the use of unwarned crimination recounting Fifth cases custodial statements to incriminate the de Amendment doctrine, impeachment of the I Although clearly fendant. development nothing suggest find in James to that the rule that by legislation, cannot be overruled rule, protects Miranda the Fifth see Dickerson, 530 431-32, U.S. 120 S.Ct. 2326, the Miranda rule's privilege against theoretical precise Amendment self-incrimina- tion, necessarily impeachment scope bars the use of basis and remain somewhat unclear. § evidence to the same extent as the Fourth 6.5(e)(Supp.2002). regard LaFave With exclusionary solely Amendment rule. impeachment admission purposes for rather than as substantive guilt, evidence of Supreme distinguished Court has it is not to envision the imposition difficult purposes nature and of the Miranda rule voluntary limitations on the use of exclusionary from those of the rule on a acquired without the benefit of the occasions, number of both before and after prophylactic warnings that are dif States, James. See Dickerson v. United ferent from the imposed limitations on the 428, 441, 2326, U.S. S.Ct. LEd.2d use by of evidence obtained Elstad, (2000)(referring Oregon v. unconstitutional context, searches and the latter U.S. 105 S.Ct. 84 LEd.2d 222 seizures. In the extent to which is allowed (1985), different); holding they are depends largely upon impact its on the deter Elstad, 470 U.S. at 105 S.Ct. 1285 rent effect exclusionary of the rule. In the (subsequent custodial statements not exelud- context, former it impeach is not clear that violation); ed as fruit of earlier Miranda ment use aof defendant's statements is in Tucker, Michigan v. S.Ct. criminating Particularly, at all. respect with (1974)(testimony 41 L.Ed.2d 182 of wit rules, prophylactic applicability ness through discovered Miranda violation peculiarly which is power within the of the by rule)3; not barred Miranda Withrow cf. Court, Supreme I am reluctant to announce a Williams, 680, 686-89, v. excluding more evidence than has al 1745, 123 (1993)(distinguishing LEd.2d 407 ready been mandated that Court. Miranda violation from Fourth Amendment purposes event, violation corpus any of habeas re In I do not believe this case view purposes). based on its different requires While anticipate us to Court. we, many courts, unlike Impeachment by evidence, have illegally understood the obtained majority, maj. op. Unlike the through voluntary see at 323 n. I but unwarned inter- understand Tucker not as an rogation. See T.C., 898 P.2d People holding but as the Miranda rule does not (Colo.1995). testimony extend to the of witnesses discovered himself, permissible of the even Colorado, conflict or contra presents a direct only if it The PEOPLE State testimony. See witness' with the diction Plaintiff-Appellee, (Colo. P.2d People, 678

LeMasters v. 1984). us, the defendant's In the case before aсtually knew he was he statement Defendant- Bolivar PINEDA-ERIZA, day question in no in court on the appear Appellant. any less true or or made

way with conflicted concerning testimony his mother's accurate No. 98CA0721. memory or his wife's history poor of record practice her usual about Appeals, Colorado Court of dates, done was not ing his court Div. III. testimony of both wit case. While probative less clearly have been would nesses 1,March 2001. knowledge light lack of the defendant's admission, Rehearing witness contradicted neither As Modified on Denial of his to a or testified statement the defendant's 7, 2001. June contradictory of the defendant. statement July Denied Certiorari in this case that the evidence To determine admitted, erroneously it is therefore suf- pre-trial the defendant's ficient prosecution's

ment, in the inadmissible made rule, could be by the Miranda case-in-chief purposes admitted for contradictory directly extent it was narrowly, testimony. Defined this of trial with the impeachment of another excluded unless the rarely become an issue should contradictory representa- testimony involves himself. As to tions of appears majority eventuality, even the Maj. op. judgment. at 825. have reserved any pressing need the absence of Given uncertainty surrounding appli- remaining rule, I no merit see cation of the venturing prediction about gratuitously of this ultimate resolution Supreme Court's question. pre-trial the defendant's I believe

Because directly contra- custodial statement any wit- testimony of defense dictory of the ness, appeals' affirm the court of I would trial, I Because for a new to remand order majori- aspects of the various

also consider questionable and unneces- ty's rationale both only. judgment in the ‍​‌‌​​‌‌​​​​​‌​​​‌​​​​‌‌​​​‌​​​​‌​​‌‌‌​‌‌​‌‌​​​‌​‍sary, I concur join and Justice RICE KOURLIS Justice concurring opinion. in the

Case Details

Case Name: People v. Trujillo

Court Name: Supreme Court of Colorado

Date Published: Jul 1, 2002

Citation: 49 P.3d 316

Docket Number: 01SC434

Court Abbreviation: Colo.