State v. Currington

SWANSTROM, Judge,

dissenting.

I respectfully dissent from the conclusions of my colleagues in part B. In my view the facts of this case are not “remarkably similar to” those in Maine v. Moulton, supra. Here the facts are significantly different and they should lead to a result different from that reached by a closely divided Court in Moulton.

Currington’s telephone call to Cochran shortly before the preliminary hearing has an entirely different context from the recorded meeting in Moulton where defense strategy was to be discussed. Here, Currington’s call shows that he did not know whether Cochran stood with him or against him. Currington’s statements were guarded. He was suspicious obviously that someone who could hurt him at trial had talked to the prosecuting attorney. Currington seemed to be feeling out Cochran to determine whether he was the one. At least three times Currington indicated that he did not know who Cochran may have talked to or what Cochran may have said *547 “about what happened.” It is true that Cochran asked several questions. However, Currington’s cryptic statements invited questions from Cochran.

Currington made a point of letting Cochran know that he had received a large sum of money as a “settlement between the boys.” This was an apparent reference to “Jim and Tony.” According to the trial testimony of Cochran, Currington had previously frequently discussed his two associates. Currington had talked about a Denver business “front” through which they “filtered” large sums of money. Currington had suggested that Cochran could be a well-paid “collector” for them. According to Cochrane, after the fire Currington talked to him about what Jim and Tony would do if someone crossed them; he mentioned, for example that they were capable of pouring acid on Cochran’s girl friend, or of permanently separating her from her child. Cochran testified that because of these threats he went to the prosecuting attorney and agreed to record Currington’s calls. This testimony, for whatever it was worth, stood unrebutted at trial; it helps explain the full implications of Currington’s call to Cochran.

The tape recording of the call reveals that Currington told Cochran, “You know, if you haven’t said anything, then I don’t have anything to — ya know — you get what’s due comin to ya.” Currington made it clear that “if everything goes smooth like it’s supposed to,” Cochran would have at least “five grand” coming. In all of this, there was a much more subtle suggestion made to Cochran that he would have something quite different coming from “the boys” if he did not help things go smoothly at the preliminary hearing.

This is hardly the case of one trusting co-defendant confiding in another. Nor is this a case where state action induced the defendant to make any statements that he otherwise would not have made. Here, the only state action was to provide the means for recording Currington’s telephone call to Cochran. In context, Cochran’s questions and answers cannot be characterized as intended to elicit incriminating statements from Currington. I would hold that there has been no intrusion by the state upon Currington’s Sixth Amendment rights. Accordingly, I would affirm the judgment of conviction.