People v. Matheny

Justice MARTINEZ

dissenting:

In deciding this case, the majority adopts a de novo standard of review to determine whether a person is in custody for Miranda *469 purposes. Because a de novo standard is inconsistent with our prior jurisprudence, I respectfully dissent. Furthermore, after applying the controlling deferential standard of review, I conclude that the trial court erred in holding that Matheny was in custody when the interview began because it applied a subjective standard to determine the issue of custody. However, the evidence does support a finding that the interview may have become custodial during the course of the questioning but before formal arrest. Thus, I would remand to the trial court for a determination of whether Matheny was in custody at a later time, during the course of the interview.

I.

Initially, I disagree with the majority's adoption of a de novo standard of review for three reasons. First, I find the majority's reliance on Thompson v. Keohane, 516 U.S. 99 , 116 S.Ct. 457 , 133 L.Ed.2d 383 (1995), to be unpersuasive. Second, the issue is not squarely before us. And third, we have a long-standing precedent applying a more deferential standard in reviewing "in custody" determinations. I proceed to discuss each reason in turn.

The majority relies heavily on the United States Supreme Court decision in Keohane to support its adoption of a de novo standard. However, I find Keohane to be inapplicable. In Keohane, the task before the Supreme Court was to decide whether "in custody" determinations were entitled to a presumption of correctness under § 2254(d) of the federal habeas corpus statute, 28 U.S.C. § 2254 (d)(1966). Keohane, 516 U.S. at 106 , 116 S.Ct. 457 . Because section 2254(d)'s presumption of correctness applies only to "factual issues," the Court considered whether the issue of custody is one of fact or one of law. Id. at 108-09, 112-13 , 116 S.Ct. 457 . The Court recognized that the issue of ecusto-dy is neither a question of fact nor a question of law, but rather, a mixed question of law and fact. Id. at 112-13 , 116 S.Ct. 457 . The Court then considered whether it should treat this mixed question of law and fact as an issue of fact, entitled to a presumption of correctness, or as an issue of law, which qualified for de novo review. Id. at 113 , 116 S.Ct. 457 . For policy reasons, the Court held that the determination of whether a defendant was "in custody" should not be treated as one of fact. Id. at 113-16 , 116 S.Ct. 457 . On the other hand, the dissent found that the policy reasons weighed more heavily in favor of treating such determinations as factual questions. Id. at 117-20 , 116 S.Ct. 457 . Having decided to treat the issue of custody as a question of law, the Court applied a de novo standard of review. Id. at 113 , 116 S.Ct. 457 .

In identifying the governing standard of review, the Keohane Court considered only two options: Either the issue was one of fact entitled to § 2254(d)'s presumption of correctness or the issue was one of law for de novo review. In contrast, in deciding upon an appropriate standard of review, we are guided by our prior jurisprudence, which has consistently applied a more deferential standard in reviewing "in custody" determinations. We have found this deferential standard to be the appropriate standard of review for what we have determined to be a mixed question of law and fact, the issue of custody. Thus, because Keohane was decided in the context of the federal habeas corpus statute, and thus the Court was guided by legislative directive, I find it is distinguishable from this case and therefore unpersuasive.

In addition, the issue is not squarely before us. Admittedly, the parties do disagree about the standard of review that governs this case. However, this is the result of a misunderstanding of the cases that set forth the standard of review governing "in custody" determinations. The proseeution contends that we have adopted a de novo standard of review for "in custody" determinations. And while the prosecution cites cases to support this contention, these cases address the standard of review for issues other than the issue of custody, and are thus not on point. The defendant, on the other hand, argues that this court has adopted a deferential standard when reviewing "in custody" determinations. Neither party discusses the considerations we should take into account when deciding whether to *470 change our standard of review. Thus, there is no debate between the parties as to why a particular standard of review is the more appropriate one, but rather just a disagreement as to what is our current standard of review. Because I find that the issue is not before us, I disagree with the majority's decision to address the issue in the first instance.

This is not to say that the question as to the appropriate standard of review of "in custody" determinations is unworthy of review. Further, I recognize that identifying the appropriate standard is a preliminary matter that must be addressed before deciding a case. However, because the parties in this case have not raised, briefed, and debated the issue, I would not use this case as a vehicle to reject our long-standing standard of review and adopt a new one. If this court is inclined to take such action, it should do so in a case in which the issue is properly before us.

Lastly, and most importantly, this court has long adhered to a more deferential standard in reviewing whether a defendant was "in custody" for purposes of Miranda. We have consistently held that "(olur role on appeal ... is to determine whether the trial court's findings of historical fact are adequately supported by competent evidence and whether the court applied the correct legal standard." People v. LaFrankie, 858 P.2d 702, 706 (Colo.1993); People v. Trujillo, 784 P.2d 788, 792 (Colo.1990). We have further held that "[an ultimate conclusion of constitutional law that is inconsistent with or unsupported by evidentiary findings ... is subject to correction by a reviewing court, as is a court's application of an erroneous legal standard to the facts of [a] case." People v. Gennings, 808 P.2d 839, 844 (Colo.1991); People v. Milhollin, 751 P.2d 43, 50 (Colo.1988).

Thus, our standard of review for custody determinations requires a three-part analysis. First, we review the record to determine whether the trial court's factual findings are supported by competent evidence. Second, we look to whether the trial court articulated the correct legal standard and fully applied this standard. If the factual findings are supported by the record and the trial court fully applied the correct legal standard, and thus the ultimate conclusion is supported by the evidentiary findings, no further inquiry is necessary and we apply a deferential standard. Third, if the trial court erred by either applying the incorrect standard or by failing to fully apply the correct standard, and if the findings of fact are sufficient and supported by the record, we may decide the issue of custody as a matter of law.

The majority, however, finds our case law to be ambiguous in this area. Specifically, the majority finds that while some Colorado courts have applied a de novo standard when reviewing whether a defendant was "in custody" for purposes of Miranda, other Colorado courts have applied a deferential standard. See maj. op. at 458-459, comparing Gennings, 808 P.2d at 844, 845 ; Milhollin, 751 P.2d at 50 -51 with People v. Trujillo, 938 P.2d 117, 123 (Colo.1997); LaFrankie, 858 P.2d at 706 . I do not agree that the cases cited by the majority support the majority's contention that we have applied two different standards of review for determining the issue of eustody. Maj. op. at 458-459. Rather than setting out two different standards of review, the cases cited by the majority instead focus on different parts of the deferential standard of review we have consistently applied to custody determinations. This standard of review does involve a de novo review, but only in limited cireumstances.

As previously discussed, under our standard of review, we defer to a trial court's ruling if the factual findings are supported by the record and the court fully applied the correct legal standard. Thus, under these circumstances, we apply a deferential standard of review to the issue of custody. However, if we find that the trial court failed to fully apply the correct legal standard, and the factual findings are sufficient and supported by the record, we may conduct a de novo review and decide the issue as a matter of law. Thus, while our standard of review does allow for a de novo review for custody determinations, it is only if the trial court failed to fully apply the correct legal standard.

*471 This standard of review was clearly articulated in People v. J.D., 989 P.2d 762 (Colo.1999). In J.D., we explained the circumstances under which we could resolve an issue of custody as a matter of law. We stated that:

Where the trial court utilizes the correct legal standard, and its conclusion is supported by evidence in the record, we will not reverse its ruling on appeal.... However, when the trial court fails to fully apply the correct standard ... its ruling cannot stand ... [and] where the findings are sufficient and supported by the record, an appellate court can review the matter and decide the issue as a matter of law.

989 P.2d at 768 (citations omitted). Thus, in J.D. we held that if a trial court fully applies the correct legal standard, we will not reverse its ruling. Therefore, we can decide whether a defendant was "in custody" for purposes of Miranda as a matter of law only if the trial court failed to fully apply the correct legal standard and the factual findings are sufficient and supported by the ree-ord. J.D. does not, as the majority suggests, stand for the proposition that a court may apply either a deferential standard or a de novo standard when reviewing "in custody" determinations.

For the reasons stated above, I do not agree with the majority's decision to adopt a de novo standard of review for "in custody" determinations. Thus, in reviewing whether Matheny was "in custody" for Miranda purposes, I believe we should adhere to our precedent and apply our more deferential standard of review. Therefore, in this case, we should review the issue of custody to determine whether the trial court failed to fully apply the correct legal standard.

IL

A review of the record in this case indicates that the trial court articulated the correct legal standard but then failed to fully apply this standard. The trial court stated: "[I]f I apply an objective standard ... I can't see how I can infer anything else other than they intended to arrest him right from the get-go and the minute he walked into the interview room he was not free to leave." The trial court further stated: "I want it clear for the record that I'm placing heavy emphasis on what I said at the beginning ... and it prevents me from inferring anything other than that they intended to hold Mr. Matheny right from the beginning." Thus, although the trial court expressly stated that it was applying an objective standard, it is clear from the trial court's language that it applied a subjective standard.

In determining whether an individual has been subjected to custodial interrogation, the relevant inquiry is "whether a reasonable person in the suspect's position would consider herself deprived of her freedom of action in a significant way at the time of the interrogation." People v. Dracon, 884 P.2d 712, 716-17 (Colo.1994). In arriving at this determination, a trial court must consider the totality of the circumstances surrounding the interrogation. Id. at 717 . Relevant criteria include the time, place, and purpose of the encounter, the words and demeanor of the officer, and the person's verbal and nonverbal response to any directions given to him by the officer. People v. Harper, 726 P.2d 1129, 1131 (Colo.1986).

Because an objective standard applies to the issue of custody, neither the interrogating officer's subjective state of mind nor the suspect's mental state is conclusive on the issue of whether a reasonable person in that situation would have considered the interrogation to be custodial. People v. Hamilton, 831 P.2d 1326, 1330 (Colo.1992). However, an officer's knowledge or beliefs may bear upon the custody issue if conveyed, by word or deed, to the individual being questioned. Stansbury v. California, 511 U.S. 318, 325 , 114 S.Ct. 1526 , 128 L.Ed.2d 293 (1994). Those beliefs are relevant only to the extent they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his " 'freedom of action.' " Id. (quoting Berkemer v. McCarty, 468 U.S. 420, 440 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984). The weight and pertinence of any communications regarding an officer's degree of suspicion will depend upon the facts and cireumstances of the particular case. Id. Moreover, the mere fact that an interrogation begins as non-custodial *472 does not prevent the interrogation from later becoming custodial. See e.g., State v. Augustine, Nos. IN-91-09-1557, IN-91-19-1558, IN-91-09-1559, IN-91-09-1728, 1992 WL 357873 , at *7, 1992 Del.Super. LEXIS 461, at **19-20 (Del.Super.Ct. Oct. 8, 1992)(recog-nizing that a non-custodial interrogation can become custodial); Commonwealth v. Medeiros, 395 Mass. 336 , 479 N.E.2d 1371 (1985)(same); State v. Wiernasz, 584 N.W.2d 1 (Minn.1998)(same).

After reviewing the videotaped interview, I agree with the majority that Matheny was not "in custody" for purposes of Miranda when the interview began. While the purpose of the interview may have been to get Matheny to admit to his involvement in the Dutchers' murders, there is no evidence in the record to suggest that Matheny was aware of this purpose. Thus, under these circumstances, a reasonable person in Mathe-ny's position would not consider himself significantly deprived of his freedom. Therefore, in considering the officers' subjective purpose, the trial erred by applying a subjective standard to the issue of custody. However, the record does support the trial court's application of an objective standard later in the interview because, during the course of the interview, the investigators gradually revealed to Matheny that they believed he was involved in the Dutchers' murders and, eventually, that they believed he was the trigger-man in two of the killings.

Shortly after Matheny recounts the events of the night of the murders, the investigators first reveal to Matheny that Isaac is in custody. They tell him that Isaac has confessed to murdering Tony and that they have no reason to doubt Isaac's story because he knows details that only a person who was at the crime seene would know. In addition, they tell Matheny that Isaac told them that "you [Matheny] provided transportation for him that night," that "he can't get there without assistance," and that "he was there and he was with you [Matheny]." Thus, the interview evolves from Matheny answering questions about his whereabouts on the night of the murders to investigators accusing Matheny of being involved in the murders. Therefore, it becomes clear to Matheny, early on in the interview, that the investigators believe he is involved in the murders.

Furthermore, as the interview progresses, an investigator tells Matheny that "if you continue lying to us, you're gonna force us to start making decisions of who gets up at bat first in the process" and that "if you're going to choose to protect those people, well then it tells us that you're the hardest of the bunch . and the truth is going to be, the hardest don't get deals." The investigator's discussion of "deals" suggests to Matheny he is going to be charged with a crime. When Matheny continues to deny any involvement in the murders, Matheny is finally told that "Isaac says you shot the Dutchers with an AK4T,"

Because investigators effectively told Matheny, at some point during the course of the interview, of their subjective intent to hold him in custody for murder, this intent becomes relevant in determining whether a reasonable person in Matheny's position would have considered himself deprived of his freedom of action in a significant way. Thus, while Matheny's interview began as non-custodial, at some time during the course of the questioning, it became custodial. However, because the trial court did not make detailed factual findings concerning the communication to Matheny of the investigators' intent to hold him in custody, I would not decide the issue of custody as a matter of law. Instead, I would remand to the trial court with directions to make further factual findings, fully apply an objective standard of law, and thus determine at what point Math-eny's non-custodial interrogation became custodial.

Chief Justice MULLARKEY joins in the dissent.