Respondents Brief — Colorado v. Connelly

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| Supreme Court, U.S.

— ™~

| FILED

V

\ MAY

Ly. 21 1986

No. 85-660 JOSEPH F. SPANIOL, Jp

IN THE

Supreme Court of the United States

OcTOBER TERM, 1985

THE STATE OF COLORADO,

Petitioner,

Vv.

FRANCIS BARRY CONNELLY,

Respondent.

On Writ Of Certiorari To

The Supreme Court Of Colorado

BRIEF FOR RESPONDENT

Davip F. VELA

Colorado State Public Defender

RosBin DESMOND

Deputy State Public Defender

ABELARDO P. BERNAL

Deputy State Public Defender

THomas M. VAN CLEAVE, III

Deputy State Public Defender

CouNSEL For RESPONDENT

1362 Lincoln Street

Denver, Colorado 80203

(303) 866-2661

LS LL

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 = (301) 864-6662

i

QUESTIONS PRESENTED

1. Whether the Due Process Clause precludes use at

trial of an inculpatory statement made to police by

Respondent which was compelled by his psychotic mental

condition but which was not the result of coercive police

conduct?

2. Whether Respondent's mental condition rendered

his waiver of Miranda rights ineffective?

TABLE OF CONTENTS

ARGUMENT

I. THe Cotorapo Courts CorRECTLY RULED THAT

Mr. CoNnNELLY’s INCULPATORY STATEMENT To

OFFICER ANDERSON RESULTED From His Psy-

cHOTIC MENTAL CoNDITION AND Its UsE aT

TriaL Woutp Vio._ate Due Process Or Law

NOTWITHSTANDING THE ABSENCE OF CoERCIVE

RSIS PR

Il. Mr. ConNELLY’s Psycuotic MENTAL CoNnDITION

RENDERED His WaIverR Or MirRanpDaA RIGHTS

ED dnnceetaccdécsauueunn

A. Applicability Of Miranda v. Arizona .......

B. Effectiveness Of Waiver ...................

COMRMIEE. «.c vo ccccncscssessescces deen

TABLE OF AUTHORITIES

Page

CASEs:

Ashcraft v. Tennessee, 322 U.S. 143 (1944).......... 13, 16

Blackburn v. Alabama, 361 U.S. 199 (1960)........ passim

Brooks v. Florida, 389 U.S. 413 (1967). ............. 15, 23

Brown v. Mississippi, 297 U.S. 278 (1936)........ 8, 13, 15

Chambers v. Florida, 309 U.S. 227 (1940)........... 14, 16

Clewis v. Texas, 386 U.S. 707 (1967) .............005- 7

Commonwealth v. Louraine, 390 Mass. 28, 453 N.E.2d

eed ca ceconsecdcccceseces

— v. Mozillo, 443 Pa. 171, 278 A.2d 874

Culombe v. Connecticut, 367 U.S. 568 (1961)..... 14, 15, 23

Darwin v. Connecticut, 391 U.S. 346 (1968)........... 7

Davis v. North Carolina, 384 U.S. 737 (1966). .... 14, 16, 17

Edwards v. Arizona, 451 U.S. 477 (1981) ............. 27

Eisen v. Picard, 452 F.2d 860 (1st Cir. 1971) .......... 21

Fare v. Michael C., 442 U.S. 707 (1979). .............. 27

Fikes v. Alabama, 352 U.S. 191 (1957). .............. 9,17

Gallegos v. Colorado, 370 U.S. 49 (1962).............. 7

Greenwald v. Wisconsin, 390 U.S. 519 (1968).......... 14

Harris v. South Carolina, 338 U.S. 68 (1949) ......... 15

Haynes v. Washington, 373 U.S. 503 (1963) ........... 16

Illinois v. Gates, 462 U.S. 213 (1983) ...............6. 7

Iverson v. North Dakota, 480 F.2d 414 (8th Cir. 1973)... 21

Jackson v. Denno, 378 U.S. 368 (1964)... ..........55. 17

Johnson v. Zerbst, 304 U.S. 458 (1938) ............... 27

Leyra v. Denno, 347 U.S. 556 (1954) ..............-.. 16

Lynumn v. Illinois, 372 U.S. 528 (1963)...........-. 14, 16

Malinski v. New York, 324 U.S. 401 (1945)............ 13

Michigan v. Mosley, 423 U.S. 96 (1975). ............ 23, 29

Miller v. Fenton, ___. U.S. — _, 106 S.Ct. 445 (1985).. 14

Mincey v. Arizona, 437 U.S. 385 (1978).... 9, 14, 21, 23, 28

Miranda v. Arizona, 384 U.S. 436 (1966)........... passim

Moore v. Ballone, 658 F.2d 218 (4th Cir. 1981)......... 29

Moran v. Burbine, ___. U.S. — _, 106 §.Ct. 1135

ERE Dae ca cacaseceseccscoceccccs 11, 27

iv

Table of Authorities Continued _

North Carolina v. Butler, 441 U.S. 369 (1979)......... 26

Oregon v. Elstad, __. U.S. ___., 105 S.Ct. 1285

i ibeienieadditadess dubbed’ séiesoeccscccces 24, 28

Pate v. Robinson, 383 U.S. 375 (1966) ................ 29

People v. Connelly, 702 P.2d 722 (Colo. 1985).......... 7,8

Reck v. Pate, 367 U.S. 483 (1961) ..............00005. 19

Rhode Island v. Innis, 446 U.S. 291 (1980)............ 25

Rogers v. Richmond, 365 U.S. 534 (1961)............ 14, 16

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) 8, 14, 15, 22

Spano v. New York, 360 U.S. 315 (1959)......... 14, 16, 17

State v. Caouette, 446 A.2d 1120 (Me. 1982)........... 22

Tague v. Louisiana, 444 U.S. 469 (1980).............. 26

Townsend v. Sain, 372 U.S. 293 (1968)............ 9, 19, 20

United States v. Brown, 557 F.2d 541 (6th Cir. 1977)... 22

United States v. Murphy, 763 F.2d 202 (6th Cir. 1985).. 22

United States v. Silva, 418 F.2d 328 (2d Cir. 1969) ..... 21

Watts v. Indiana, 338 U.S. 49 (1949). ............... 14, 16

Westbrook v. Arizona, 384 U.S. 150 (1966) ............ 29

CONSTITUTION:

Oe a 23, 24

ee ae passim

STATUTE:

8 Colorado Revised Statutes (1978), Section 16-8-102(3). 3

MISCELLANEOUS:

Dix, Waiver in Criminal Procedure: A Brief for More

Careful Analysis, 55 Tex. L. Rev. 193 (1977).... 26, 29

STATEMENT OF FACTS

On August i8, 1983, Officer Patrick Anderson of the

Denver Police Department was working in downtown

Denver in an off-duty capacity, though in full uniform,

when the Respondent, Francis Connelly, approached him

and stated that he had killed someone and wanted to tell

him about it. (J.A., 3-4) Anderson's initial response to Mr.

Connelly was that he “thought he was some sort of a

crackpot.” (J.A., 4) Based on Mr. Connelly’s statement,

Anderson advised him of his Miranda rights, conducted a

cursory search for weapons and placed him in handcuffs.

(J.A., 5-6) Anderson then removed Mr. Connelly from the

street and took him into a nearby newsstand. (Transcript

of suppression hearing (hereinafter denoted by “Tr.”) at

page 11.) There Anderson removed Mr. Connelly’s wallet

and obtained a driver’s license from the wallet. (Tr., 11)

Anderson used a telephone in the newsstand to call the

National Crime Information Center computer network to

ascertain if there were any outstanding warrants on Mr.

Connelly. (Tr., 12) There were none. (Tr., 12) Meanwhile,

Mr. Connelly had given the additional information that he

had killed a girl, with whom he had been traveling, in the

area of West Mississippi Avenue (a Denver street). (Tr.,

12)

Anderson called the Crimes Against Perso:s Bureau of

the Denver Police Department and talked to Detective

Stephen Antuna and related to him the information he had

obtained from Mr. Connelly. (Tr., 12) Antuna told Ander-

son to retain Mr. Connelly in custody, and that he would

respond to their location. (Tr., 13) While waiting for

Antuna, Anderson, who had a “feeling” that Mr. Corinelly

previously had been. in a mental institution. (J.A., 8)

asked Mr. Connelly if he had ever been treated for any

mental disorders. (J.A., 7) Mr. Connelly replied that he

had been in five different hospitals. (J.A., 7; 9) Other than

2

questioning Mr. Connelly, Anderson did not threaten or

promise him anything. (J.A., 8)

When Detective Antuna arrived and had been briefed

on the situation by Officer Anderson, he removed the

handcuffs and placed Mr. Connelly in his police car. (J.A.,

12) Antuna verbally advised Mr. Connelly of his Miranda

rights and asked him to tell him “what he had on his

mind.” (J.A., 12) Mr. Connelly said that he wanted to

confess to the murder of a young Indian female. (J.A., 12)

Antuna then transported Mr. Connelly to Denver Police

Headquarters. (J.A., 13) There he contacted an Officer

Haney who was more familiar with homicides in Denver,

and began checking some records. (J.A., 13)

The records obtained by Officer Haney indicated that

the body of an unidentified female had been discovered in

April of 1983. (J.A., 13) They went to Haney’s office and

“began to get more information from Mr. Connelly.” (J.A.,

14) Upon Detective Antuna’s request, Mr. Connelly

related to Haney the same information he had told to

Antuna. (J.A., 15) Mr. Connelly told them that the

murder took place in southwest Denver, and agreed to

show them where the murder occurred. (Tr., 27) Antuna

and Haney, using Haney’s police car, drove Mr. Connelly

around southwest Denver where he eventually directed

them to a storage area at the rear of a building and stated

that it was there that he had killed the woman. (Tr., 29)

Mr. Connelly indicated that the murder occurred in

November or December of 1982. (Tr., 33)

Mr. Connelly was charged in the District Court of the

City and County of Denver, Colorado, on August 31, 1983,

with the offense of second degree murder. (Record of

pleadings (hereinafter denoted by “P1.”) at page 1) On the

next day, September 1, the court remanded Mr. Connelly

3

to the Colorado State Hospital for an examination as to

competency. (Pl., 4) On October 14, 1983, pursuant to a

report dated September 22, 1983, which was filed with the

court by Dr. Jeffrey Metzner, (P1., 11-17)! the court found

Mr. Connelly incompetent to proceed. (Pl., 21; 23)? On

March 7, 1984, Mr. Connelly was deemed competent to

proceed and a preliminary hearing was set. (Pl. , 37) Prior

to the preliminary hearing Mr. Connelly filed his Motion

to Suppress Statements and Evidence on the grounds

that because he was incompetent at the time, his con-

fession to police was involuntary and he did not volun-

tarily, knowingly and intelligently waive his Miranda

rights. (Pl., 43-44)

Upon completion of the testimony of Detective Antuna

at the suppression hearing, the State indicated that it

intended to present no further evidence. (Tr., 33) The

1 In the introduction to his report Dr. Metzner stated: “A psychi-

atric examination has been requested regarding the legal issue of . . .

(Mr. Connelly’s] competency to proceed and competency at the time

of allegedly making a confession to the police” (Pl., 11) In the sum-

Based upon my examination of Mr. Son Shape es

he was experiencing psychotic symptoms during the time imme-

Se

police. (Pl., 16-1

28 Colo. Rev. Stat. § 16-8-102(3) (1978) provides:

ss to proceed” means the defendant is suffering from

a Lottie chamtentnn amaetie dander

standing the nature and course of ings against him or of

——— nse or cooperating with his

4

defense then called Dr. Jeffrey Metzner, who was received

as an expert in the field of forensic psychiatry. (J.A., 17)

Dr. Metzner stated that at the request of the court he

conducted an examination of Mr. Connelly to determine

his competency to stand trial as well as his competence to

make a confession to the police. (Tr., 48) In the course of

his examination Dr. Metzner obtained various informa-

tion from Mr. Connelly. (J.A., 18) Mr. Connelly stated that

on the afternoon of August 17, 1983, when he was in

Boston, Massachusetts, he began experiencing God’s

voice telling him to go to Denver and confess the crime of

murder to a policeman. (J.A., 18) Upon arriving in Den-

ver the voices told him that he had only two choices: to

confess or to kill himself. (J.A., 19) Mr. Connelly even-

tually made his way to downtown Denver where he went

up to the first policeman he saw and confessed. (J.A., 22)

Dr. Metzner diagnosed Mr. Connelly as suffering from

chronic schizophrenia. (J.A., 23) Mr. Connelly’s symp-

toms included the experiencing of auditory hallucina-

tions, 7.e., hearing voices that are not really there. (J.A.,

24) Dr. Metzner stated that the importance of the voices

experienced by Mr. Connelly was that they were of a type

called “command hallucinations.” (J.A., 25) With this type

of hallucination, the person experiencing it feels that he

has to act on whatever the voice is telling him. (J.A., 25)

Dr. Metzner stated that in his opinion Mr. Connelly’s

illness did not impair his cognitive abilities, meaning “that

when he was read his Miranda rights, he probably had

the capacity to know that he was being read his Miranda

rights, and he had certain rights, but .. . I think he

wasn’t able to use that information because of the com-

mand hallucinations that he had experienced.” (J.A.,

25-26) Upon being asked if he had an opinion whether Mr.

Connelly spoke voluntarily to the police, Dr. Metzner

5

stated: “I don’t think that he was able to make a free and

intelligent decision in making that statement based on

impairment by his chronic schizophrenia.” (J.A., 26) Dr.

Metzner was then asked whether Mr. Connelly might not

have been psychotic when he talked to the police, and he

stated that although that was a possibility, based upon his

examination of Mr. Connelly, together with the history of

records from previous hospitalizations, he was of the opin-

ion that Mr. Connelly was psychotic at that time. With

respect to the waiver of rights Mr. Connelly signed, Dr.

Metzner stated:

It’s my opinion that Mr. Connelly felt that he didr.'t

have a choice about making a confession. It was not

just that his instructions from God and not just

instructions, it was that his command from God was

that, you go tell the police, and you tell them every-

pan ina ned, ‘and you don't have a choice, and

if you things, but you

have t to nel et and sign things, you hahe—ts e—in my opinion

is what he was acting on.

(J.A., 29)

Upon being asked upon cross-examination whether the

voices Mr. Connelly was hearing could be characterized as

a guilty conscience, Dr. Metzner stated that in his opinion

the voices were primarily attributable to Mr. Connelly’s

psychotic state. (J.A., 32-34) Finally, in response to a

question whether, in view of the fact that Mr. Connelly

chose to confess rather than to kill himself he could have

chosen to sign the advisement as well, Dr. Metzner

stated: “It was my opinion that he really didn’t have much

of a choice.” (J.A., 36)

At the conclusion of the evidence, the trial court stated

its findings and conclusions as follows:

to do so so that trained,

officers were not able to discern

the mental that the Defendant was having

(J.A., 47-49)

7

The Court then ruled that the prosecution could not pre-

sent any evidence concerning Mr. Connelly’s statements

to the police after he contacted them. (J.A., 49)

The Colorado Supreme Court affirmed the ruling of the

trial court. People v. Connelly, 702 P.2d 722 (Colo. 1985).

After noting that “(tJhe issue of voluntariness must be

resolved by evaluating the totality of circumstances sur-

rounding the making of the statement,” id., 702 P.2d at

728, the court ruled that under that test “(t]he record in

this case supports the district court's determination that

the defendant's initial statement to Officer Anderson on

August 18, 1983 . . . was not the product of a rational

intellect and a free will notwithstanding the fact that this

statement was neither solicited by the officer nor was the

result of any form of police action.” [d., 702 P.2d at 729.

The Colorado Supreme Court also affirmed the trial

court's ruling that Mr. Connelly did not effectively waive

his Miranda rights as to the subsequent statements made

to police:3

3In view of its ruling that the subsequent admissions were

obtained in violation of Miranda requirements, the Colorado

Supreme Court did not consider, and thus did not rule on, the

question of whether those statements were involuntary under due

process standards. Since those statements were not volunteered, but

resulted from police questioning, a ruling by this Court that the

initial statement to Officer Anderson was voluntary because it

resulted from no police action, would not necessarily require the

same result with the subsequent statements obtained through police

questioning. Similarly, the Colorado court did not consider whether,

given the involuntariness of the initial statement, the subsequent

statements derived from that statement. See Darwin v. Connecticut,

391 U.S. 346 (1968); Clewis v. Texas, 386 U.S. 707 (1967); Gallegos v.

Colorado, 370 U.S. 49 (1962). Since these issues were not considered

by the Colorado Supreme Court, they are not properly before this

Court for review. See Illinois v. Gates, 462 U.S. 213 (1983).

8

In light of the psychiatric testimony presented to

the district court, we see no reason to disturb the

court's conclusion that the prosecution failed to prove

b clear and convineing evidence that the defendant

effectively waived his Miranda > © meee ,

eee ane”

right of allence while in custody und his consticational

Rape Sp Uae WER 6 Coper Cetin Caeeny to the

police.

Id., 702 P.2d at 729.

Finally, the court remanded the case to the trial court for

further findings as to the trial court's order suppressing

evidence derived from Mr. Connelly’s statements. Id. , 702

P.2d at 730.

SUMMARY OF THE ARGUMENT

1. From the first application of the Due Process

Clause of the Fourteenth Amendment to preclude admis-

sion of an involuntary confession in Brown v. Mississippi,

297 U.S. 278 (1936), the Court has variously described

such confessions as coerced, compelled, not the product of

a rational intellect and a free will, not freely self-deter-

mined, and not the product of a free and rational choice, to

name a few. Nor has a precise definition of an involuntary

confession been successfully formulated. The Court has,

however, identified the factors to be considered in deter-

mining the voluntariness of a confession. Thus, “the total-

ity of all the surrounding circumstances—both the

characteristics of the accused and the details of the inter-

rogation,” Schneckloth v. Bustamonte, 412 U.S. 218, 226

(1973), are considered. Under this “totality of circum-

stances” standard, everything is relevant but no single

factor is determinative. While a common feature of the

involuntariness determination has been the nature and

extent of the confinement and interrogation of the defend-

ant, his or her physical and mental characteristics and

condition have also been given substantial consideration.

In examining these two factors the Court has compared

the circumstances of pressure applied in the interrogation

process against the power of resistance of the person

being interrogated. Fikes v. Alabama, 352 U.S. 191

(1957).

Both Petitioner and the Solicitor General (hereinafter

sometimes referred to as the Government) argue that

there can be no Due Process violation in the absence of

coercive government conduct. While the cases invariably

have involved some aspect of government conduct, usually

in the form of coercive interrogation practices, in Town-

send v. Sain, 372 U.S. 293 (1963), the Court noted that a

prior case, Blackburn v. Alabama, 361 U.S. 199 (1960),

had “held irrelevant the absence of evidence of improper

purpose on the part of the questioning officers.” Towns-

end, 372 U.S. at 309. Thus, although the nature and

extent of the interrogation process is a factor to be consid-

ered in determining the voluntariness of a confession, it is

not a prerequisite to a finding of involuntariness if the

defendant's mental condition is such that his confession

does not result from his “free and rational choice,” Mincey

v. Arizona, 437 U.S. 385, 401 (1978), to confess.

In the present case the defense presented the testi-

mony of Dr. Jeffrey Metzner, a psychiatrist appointed by

the trial court to examine Mr. Connelly to determine his

to stand trial. Dr. Metzner was of the opinion

that Mr. Connelly suffered from severe schizophrenia and

was psychotic. A prominent symptom of Mr. Connelly’s

psychosis was that he experienced command auditory

hallucinations. Dr. Metzner explained that this is a type of

xs

g

j woman, Mr. Connelly was

compelled to do so by voices which told him that the only

alternative to confessing was to kill himself. Because Mr.

Connelly’s confession was compelled by the command hal-

lucinations, Dr. Metzner was of the opinion that his con-

fession was not volitional. In his report to the court, Dr.

Metzner found that Mr. Connelly was incompetent to

surrounding

making of the statement, the Colorado Supreme Court

affirmed the trial court’s ruling, holding that the trial

court's determination that Mr. Connelly’s confession was

involuntary was supported by the evidence. Given the

unique factual posture of this case, the undisputed evi-

dence of Mr. Connelly’s impaired mental condition, and

the Colorado Supreme Court's application of the proper

constitutional standard to those facts, its ruling should

not be disturbed on review.

2. Miranda v. Arizona, 384 U.S. 436 (1966), estab-

lished concrete constitutional guidelines for law enforce-

ment agencies and courts to follow in applying the

ul

privilege against self-incrimination to custodial inter-

rogations. Miranda required certain specified warnings

to be given persons questioned in custody as a prere-

quisite to the admissibility of statements obtained

thereby. The requirements specified by Miranda do not

depend on whether the rationale underlying the Miranda

decision is fulfilled in each particular case. boy toa

Seeman “eal Caan,” Gass tte C Con-

nelly was handcuffed by police officers and removed from

the street and since his statements were in response to

questioning by the officers, the Miranda requirements

are .

In Miranda the Court acknowledged that a defendant

could waive the rights to counsel and to remain silent, but

a “heavy burden” on the government to prove that

the defendant voluntarily, knowingly and intelligently

waived those rights. Although an express waiver is not

required, a valid waiver will not be presumed simply from

the fact a confession is eventually obtained. In the present

case although Mr. Connelly stated that he understood his

rights, this was an insufficient showing to establish a valid

waiver.

To be a valid waiver under Miranda it must be volun-

tary as well as knowing and intelligent. In the recent case

of Moran v. Burbine, _. U.S. — ~, 106 S.Ct. 1135

(1986), the Court stated that for a waiver to be voluntary it

must be the product of a free and deliberate choice, while

the knowing and intelligent aspect requires an awareness

of the nature of the right being waived and the con-

sequences of forgoing it. The Court’s description of the

voluntary component of the waiver requirement substan-

tially resembles that of the due process voluntariness

12

requirement for confessions. For the reasons stated in

Argument 1, above, with respect to the voluntariness of

confessions, Mr. Connelly’s psychotic mental condition

rights to counsel and to remain silent. :

Mr. Connelly’s impaired mental condition precluded

him from being able to knowingly and intelligently waive

his rights as well. As noted above, Dr. Metzner’s

undisputed finding that Mr. Connelly was incompetent to

stand trial was based on his diagnosis of Mr. Connelly’s

mental condition which was present at the time he made

the statements to the police officers. Thus, Dr. Metzner

effectively found that Mr. Connelly was incompetent at

that time as well as later. Mr. Connelly’s incompetence

clearly rendered any waiver neither knowing nor intel-

ligent.

In order to voluntarily, knowingly and intelligently

waive constitutional rights, a person must necessarily

have the capacity to acceptably make a choice. Dr.

Metzner testified that while Mr. Connelly had the capac-

ity to know that he was being read his Miranda rights, he

was not able to use that information to consciously choose

between waiving his rights and confessing, since the for-

mer choice would require his self-destruction. This, of

course, was no choice at all. Lacking the capacity to make

a conscious choice, Mr. Connelly was precluded by his

impaired mental condition from being in a position to

voluntarily, knowingly and intelligently waive his right to

counsel and to remain silent.

Both the Petitioner and the Government argue that a

waiver of constitutional rights can be rendered ineffective

only by official overreaching or government coercion, and

not by internal psychological pressures. However, these

13

contentions fail to take into account the unique and

unusual circumstances of this case. The substantial and

undisputed medical evidence of Mr. Connelly’s severe psy-

chotic condition which rendered him incompetent pre-

cluded him from having the capacity to voluntarily,

knowingly and intelligently waive his constitutional

rights.

ARGUMENT

I. THE COLORADO COURTS CORRECTLY RULED

THAT MR. CONNELLY’S INCULPATORY STATE-

MENT TO OFFICER ANDERSON RESULTED FROM

HIS PSYCHOTIC MENTAL CONDITION AND ITS USE

AT TRIAL WOULD VIOLATE DUE PROCESS OF LAW

NOTWITHSTANDING THE ABSENCE OF COERCIVE

POLICE CONDUCT.

The Fourteenth Amendment Due Process volun-

tariness requirement for confessions traces back to the

case of Brown v. Mississippi, 297 U.S. 278 (1936). There,

where the evidence showed that the defendants’ con-

fessions were obtained by brutally whipping them,

“(t]here was thus enough before the court when these

confessions were first offered to make known to the court

that they were not, beyond all reasonable doubt, free and

voluntary.” Id., 297 U.S. at 283. Accordingly, “the use of

the confessions thus obtained as the basis for conviction

and sentence was a clear denial of due process.” /d., 297

U.S. at 286.

While the Court in Brown used the terms “free” and

“voluntary” to describe the due process requirement for

confessions, in subsequent cases the Court has ruled vio-

lative of due process. the admission of confessions that

were “coerced” or “compelled” or obtained under “com-

pulsion,” see Malinski v. New York, 324 U.S. 401, 406

(1945); Ashcraft v. Tennessee, 322 U.S. 1438, 153 (1944);

14

Chambers v. Florida, 309 U.S. 227, 239 (1940); “not

issue(d] from free choice,” Watts v. Indiana, 338 U.S. 49,

53 (1949); or obtained as the result of “coercive influ-

ences,” see Davis v. North Carolina, 384 U.S. 737, 752

(1966). Confessions are also involuntary in a due process

sense where the defendant's “will was overborne,” Spano

v. New York, 360 U.S. 315, 323 (1959); Lynumn v. IIli-

nois, 372 U.S. 528, 534 (1963); where the confession is not

“the product of a rational intellect and a free will,” Black-

burn v. Alabama, 361 U.S. 199, 208 (1960); or is not

“freely self-determined,” Rogers v. Richmond, 365 U.S.

534, 544 (1961). In Culombe v. Connecticut, 367 U.S. 568

(1961), the Court stated that the test for voluntariness is

whether the confession is “the product of an essentially

free and unconstrained choice by its maker.” Jd., 367 U.S.

at 602. See also, Mincey v. Arizona, 437 U.S. 385, 401

(1978) (“Mincey’s statements were not ‘the product of his

free and rational choice.’”) (quoting Greenwald v. Wiscon-

sin, 390 U.S. 519, 521 (1968)).

Although the cases have employed a variety of terms to

describe confessions, which “by way of convenient short-

hand,” have been termed “involuntary,” Blackburn, 361

U.S. at 207, “[tJhose cases yield no talismanic definition of

‘voluntariness,’ mechanically applicable to the host of sit-

uations where the question has arisen.” Schneckloth v.

Bustamonte, 412 U.S. 218, 224 (1973). The difficulty in

defining “voluntariness,” it has been noted, is that the

concept of voluntariness “is itself an amphibian. It pur-

ports at once to describe an internal psychic state and to

characterize that state for legal purposes.” Culombe, 367

U.S. at 605. See also Miller v. Fenton, __. U.S. ___, 106

S.Ct. 445, 453 (1985).

The Court has tended to look at a number of various

factors in determining whether a particular confession is

15

voluntary or involuntary. In Harris v. South Carolina,

338 U.S. 68 (1949), the Court stated that “(t]he systematic

persistence of interrogation, the length of periods of ques-

tioning, the failure to advise the petitioner of his rights,

the absence of friends or disinterested persons, and the

character of the defendant constitute a complex of circum-

stances” which determine whether a confession is involun-

tary. Id., 338 U.S. at 71. Later, in Culombe the Court set

forth additional factors to be considered in making the

voluntariness determination:

Each of these factors [extensive cross-questioning,

undue delay in arraignment, failure to caution a pris-

oner, refusal to permit communication with friends

and legal counsel], in company with all of the sur-

rounding circumstances—the duration and condi-

tions of detention (if the confessor has been

detained), the manifest attitude of the police toward

him, his physical and mental state, the diverse pres-

sures which sap or sustain his powers of resistance

and self-controli—is relevant.

Id., 367 U.S. at 601-02.

Thus, in determining the voluntariness of a confession

“the totality of all the surrounding circumstances—both

the characteristics of the accused and the details of the

interrogation” are considered. Bustamonte, 412 U.S. at

226 (1973).

Applying the foregoing factors, confessions obtained

by brutal torture,4 deprivation of food or sleep,® decep-

4 Brown v. Mississippi, 297 U.S. 278 (1936) (confession by defend-

ant after being brutally whipped).

5 Brooks v. Florida, 389 U.S. 413 (1967) (defendant confined for 15

days in a punishment cell and given 12 ounces of food and 8 ounces of

water per day).

16

tion® and threats’ have been held involuntary. Similarly,

confessions obtained during extended periods of con-

finement with prolonged or intense interrogation have

also been held involuntary.® In these cases, while a com-

mon feature of the involuntariness determination was the

nature and extent of the confinement and interrogation of

the defendant, the Court made frequent references to the

physical or mental infirmities or deficiencies of the

defendants which reduced their abilities to resist the

coercive effects of that confinement and interrogation. In

Chambers the defendants were “ignorant young colored

tenant farmers.” Jd., 309 U.S. at 238; in Spano the

defendant was a “foreign-born young man of 25 with no

past history of law violation” who had “progressed only

® Spano v. New York, 360 U.S. 315 (1959) (police officer-friend of

defendant falsely told defendant that the officer would lose his job if

defendant did not confess); Leyra v. Denno, 347 U.S. 556 (1954)

(confession obtained by psychiatrist skilled in hypnosis whom police

represented as physician who would treat defendant's sinus con-

dition).

* Haynes v. Washington, 373 U.S. 508 (1963) (defendant told that

he would not be allowed to communicate with his wife until he

confessed); Lynumn v. Illinois, 372 U.S. 528 (1963) (police threat-

ened to take defendant's children away if she did not confess); Rogers

v. Richmond, 365 U.S. 534 (1961) (interrogating officer threatened to

take defendant's wife into custody).

8 Davis v. North Caroling, 384 U.S. 737 (1966) (defendant confined

for 5 days and in ‘intermittently for 12 and a half hours);

Watts v. Indiana, 338 U.S, 49 (1949) (defendant confined for 6 days

and subjected to 9 to 10 hours of interrogation on 5 of the 6 days);

Ashcraft v. Tennessee, 322 U.S. 143 (1944) (defendant confined

incommunicado in a small room without sleep or rest for 36 hours and

subjected to continuous interrogation); Chambers v. Florida, 309

U.S. 227 (1940) (defendant held incommunicado for 7 days and sub-

jected to persistent and repeated interrogation, with overhanging

threat of mob violence).

17

one-half year into high school” and “had a history of emo-

tional instability.” Jd., 360 U.S. at 321-22; and in Davis

the defendant was “an impoverished Negro with a third or

fourth grade education” whose “level of intelligence is

such that it prompted the comment by the court below

_. . that there is a moral question whether a person of

Davis’ mentality should be executed.” Jd., 384 U.S. at

742. Thus, even in cases in which there was evidence of

substantial police coercion, the mental characteristics of

the defendant were considered a significant factor in the

voluntariness determination.

As police interrogation practices became more humane

and the physical abuse of defendants diminished or was

not present, the Court noted that “police conduct requir-

ing exclusion of a confession has evolved from acts of clear

physical brutality to more refined and subtle methods of

overcoming a defendant's will.” Jackson v. Denno, 378

U.S. 368, 389 (1964). However, the Court has recognized

that confessions obtained under less severe police conduct

than had been present in earlier cases may be involuntary

nonetheless: “{AJs law enforcement officers become

more responsible, and the methods used to extract con-

fessions more sophisticated, our duty to enforce federal

constitutional protections does not cease.” Spano, 360

U.S. at 321.

With the emphasis shifted away from physically coer-

cive methods of obtaining confessions toward more

sophisticated and subtle practices, the Court began to

examine closely the psychologically coercive aspects of

the interrogation process as well as the mental capacity of

the defendant to resist that coercion. In Fikes v. Ala-

bama, 352 U.S. 191 (1957), where the defendant was

incarcerated for four days and interrogated for several

hours a day on three of those days before he made a first

18

confession, and a second confession was made five days

later after another five hours’ interrogation, the Court

noted at the outset of its opinion:

It is, of course, highly material to the question before

this Court to ascertain petitioner's character and

background. He is a Negro, 27 old in 1953, who

Cee pee ate t and at 16 while still in

was

the third grade. testimony by three psy-

chiatrists at the trial, in connection with a plesded

defense of i ity, to the effect that petitioner is a

schizophrenic highly suggestible.

Id., 352 U.S. at 1938.

Later in the opinion the Court noted that “[tJhere is no

evidence of physical brutality, and particular elements

that were present in other cases in which this Court ruled

that a confession was coerced do not appear here.” /d..,

352 U.S. at 197. The Court then held that the totality of

“the circumstances of pressure applied against the power

of resistance of this petitioner, who cannot be deemed

other than weak of will or mind, deprived him of due

process of law.” Jd., 352 U.S. at 198.

Three years later the Court decided Blackburn v. Ala-

bama, 361 U.S. 199 (1960), which presented a factual

situation quite similar to the one in this case. In Black-

burn, the defendant was arrested shortly after a robbery.

About three weeks later, after an eight to nine-hour inter-

rogation session with an hour's break, he confessed to the

robbery. The evidence showed that the defendant had a

prior history of mental illness and after being charged

with the robbery had been found insane and incompetent

to stand trial. He was found restored to competency four

years later and was tried and convicted with the con-

fession being admitted into evidence at the trial.

Although noting that the eight to nine-hour interroga-

19

tion, the absence of the defendant's friends and relatives

and the composition of the confession by the sheriff were

“other pertinent circumstances,” the primary factor in

the Court’s holding that the confession “most probably

was not the product of any meaningful act of volition,” id.,

361 U.S. at 211, was the mental illness of the defendant:

In the case at bar, the evidence indi y estab-

unreliability of the confession, the lack of rational

choice of the accused, or simply a conviction

that our system of law enforcement not oper-

ate so as to take advantage of a person in this fashion.

Id., 361 U.S. at 207.

A year later, in Reck v. Pate, 367 U.S. 433 (1961), the

defendant was interrogated over a three-day period, was

without adequate food, and was considered at least

borderline retardation. Thus his “powers of resistance to

overbearing police tactics,” id., 367 U.S. at 442, were

insufficent to allow his confession to be considered volun-

tary.

In Townsend v. Sain, 372 U.S. 293 (1963), defendant

was injected with prescribed drugs during an interroga-

tion session to alleviate severe heroin withdrawal symp-

toms. Unknown to the police, one of the drugs injected

had properties of a “truth serum.” Additionally, a pros-

ecution expert testified that the defendant was of such a

low intelligence that he was a near mental defective and

just a little above a moron. About an hour after the

injection was administered, the defendant confessed to a

20

robbery and murder. In holding the confession inadmissi-

ble as involuntary, the Court stated: “It is difficult to

imagine a situation in which a confession would be less the

product of a free intellect, less voluntary, than when

brought about by a drug having the effect of a ‘truth

serum.’” Jd., 372 U.S. at 307-08. The Court then noted

that in Blackburn it had “held irrelevant the absence of

evidence of improper purpose on the part of the question-

ing officers.” Jd., 372 U.S. at 309.

The foregoing progression of cases illustrates that as

police conduct in obtaining confessions has evolved from

the use of physical force and brutality to more subtle

forms of psychological persuasion, the Court has

increasingly looked to the mental condition of the defend-

ant and the effect upon his or her mental state of the

particular police conduct involved. And where there has

been no impermissible police conduct, as in Blackburn

and Townsend, the deficient mental condition of the

defendants in those cases was sufficient to render their

confessions involuntary. A rational application, not exten-

sion, of prior decisions of this Court fully supports the

Colorado courts’ conclusions that the admission of Mr.

Connelly’s confession to Officer Anderson at trial would

violate his right to due process of law. Such a holding

would involve no “new constitutional rule” designed to

protect citizens from their own “self-generated compul-

sion to reveal information to the authorities.” Brief of the

United States at 10. Rather, it would involve simply an

acknowledgement of the principles previously established

in Blackburn and Townsend that under particular circum-

stances a confession may be involuntary even though

there is no impermissible police conduct.

Given the unusual and unique circumstances of Mr.

Connelly’s severely impaired mental condition, the

21

absence of government coercion does not require reversal

of the Colorado courts’ findings of involuntariness. Dr.

Metzner’s undisputed testimony established that at the

time of the confession Mr. Connelly was suffering from

chronic schizophrenia and was experiencing command

hallucinations under which his only option to making a

confession was self-destruction. Also undisputed was Dr.

Metzner’s opinion that Mr. Connelly’s mental condition

was so substantially impaired that his confession was not

the product of a free and rational decision. Finally, Dr.

Metzner’s determination that Mr. Connelly was so men-

tally impaired that he was incompetent to proceed judi-

cially renders any confession made while under that

disability clearly involuntary, and use of such a confession

at trial would affront a “most basic sense of justice.” See

Blackburn, 361 U.S. at 201-02, 207. See also, Iverson v.

North Dakota, 480 F.2d 414, 428 (8th Cir. 1973) (although

statement obtained outside custodial interrogation set-

ting, case remanded for hearing on competency of the

defendant; if defendant was not competent, statement

was involuntary and may not be used for any purpose);

Eisen v. Picard, 452 F.2d 860 (1st Cir. 1971) (although

trial court found no threats, pressure or suggestions by

police officers in obtaining statements, it erred in failing

to consider whether defendant's insanity rendered them

involuntary); United States v. Silva, 418 F.2d 328 (2d Cir.

1969) (trial court erred in finding confession voluntary

without receiving evidence as to defendant's mental con-

dition). Thus the ruling of the Colorado courts that under

the totality of the circumstances Mr. Connelly’s statement

was involuntary was factually and legally correct, and Mr.

Connelly’s statement to Officer Anderson was inadmissi-

ble “in any way” against him at trial. Mincey, 437 U.S. at

402.

The primary contention of both Petitioner and the Gov-

ernment in their respective briefs is that there can be no

violation of the Due Process Clause in the absence of

coercive government conduct. Brief of Petitioner, at 14;

Brief for the United States, at 12.9 However, as noted

earlier, the determination of voluntariness depends upon

an assessment of “the totality of all the cir-

euntennn hth Gocenaatiindeamenlent

the details of the interrogation,” Bustamonte, 412 U.S. at

226. There the Court surveyed a number of cases in which

confessions had been found involuntary in a due process

context and noted that “(t]he significant fact about all of

these decisions is that none of them turned on the pres-

ence or absence of a single controlling criterion.” /bid.

* In its brief the Government notes that “{t]he most difficult ques-

tion would arise when the suspect has a weakness or

not known to the police but in fact making him especially vulnerable

to some otherwise permissible form of interrogation.” Brief of the

United States, at 16 n.4. The Government thus appears to recognize

that a confession in a particular situation may be considered involun-

tary without official coercion. See United States v. Murphy, 763 F.2d

202 (6th Cir. 1985), cert. denied, _._. U.S. —__.,, 106 S.Ct. 812

(1986). (statements by defendant made out of fear of being bitten by

police dogs used to arrest him held involuntary); United States v.

Brown, 557 F.2d 541 (6th Cir. 1977) (statements by defendant induced

by fear of beating by police, but which were not in response to

questioning held involuntary); Commonwealth v. Louraine, 390

Mass. 28, 453 N.E.2d 437 (1983) (defendant's insanity may render

spontaneous inculpatory statements he made at scene of crime upon

arrival of police involuntary); State v. Caouette, 446 A.2d 1120 (Me.

that statement was involuntary); Commonwealth v. Mozillo, 443 Pa.

171, 278 A.2d 874 (1971) (spontaneous statements made to correc-

tional facility guard while defendant incompetent to stand trial held

inadmissible as unreliable).

uct of a rational intellect and a free will.” Blackburn, 361

U.S. at 208. Accordingly, “any criminal trial use against

_.. (Mr. Connelly] of his involuntary statement is a

denial of due process of law.” Mincey, 437 U.S. at 398.

(emphasis in original) See also Brooks, 389 U.S. at 415

(1967); Culombe, 367 U.S. at 635; Blackburn, 361 U.S. at

205.

ll. MR. CONNELLY’S PSYCHOTIC MENTAL CON-

DITION RENDERED HIS WAIVER OF MIRANDA

RIGHTS INEFFECTIVE.

A. Applicability Of Miranda v. Arizona.

In Miranda v. Arizona, 384 U.S. 436 (1966) this Court

established “concrete constitutional guidelines for law

enforcement agencies and courts to follow” in “applying

the privilege against self-incrimination to in-custody

interrogation(s).” [d., 384 U.S. at 441-42. Accordingly,

the Court there held

that unless law enforcement officers give certain

specified warnings before questioning a in

custody, end follow certain specified dur-

ing the course of any eubeoquent See eet any

statement made b person in custody cannot over

yon eee in evidence against him as a

at trial, even though the statement may in

fact be wholly voluntary.

Michigan v. Mosley, 423 U.S. 96, 99-100 (1975).

The applicability of these requirements does not, as sug-

gested by the Government, depend on whether their

24

underlying rationale is fulfilled in each particular case.

Rather, “the Fifth Amendment privilege is so fundamen-

tal to our system of constitutional rule and the expedient

of giving an adequate warning as to the availability of the

privilege so simple, we will not pause to inquire in individ-

ual cases whether the defendant was aware of his rights

without a warning being given.” Miranda, 384 U.S. at

468.

Miranda applies only to statements obtained through

“custodial interrogation,” that is, “questioning initiated

by law enforcement officers after a person has been taken

into custody or otherwise deprived of his freedom of

action in any significant way,” id., 384 U.S. at 444, and

expressly exempts volunteered statements from its

reach: “Volunteered statements of any kind are not bar-

red by the Fifth Amendment and their admissibility is not

affected by our holding today.” Jd., 384 U.S. at 478. Thus

Mr. Connelly’s initial statement to Officer Anderson is not

subject to the Miranda requirements.

While Petitioner does not question the applicability of

Miranda to Mr. Connelly’s subsequent statements to

Officer Anderson, '° the Colorado Attorney General does

question whether they were obtained pursuant to

custodial interrogation, '! and the Solicitor General, while

conceding that Mr. Connelly was in custody, asserts that

°In the Brief of Petitioner the State does not allege that Mr.

Connelly’s statements were not the result of custodial interrogation.

The State's concession of custody and interrogation should be deter-

minative of the issue. Oregon v. Elstad, _._. U.S. . , 106

S.Ct. 1285, 1297 (1985).

'! See Brief Amici Curiae in Support of the Petitioner by the

Colorado Attorney General and the 35 Amici that Appear on the

Inside Cover at 13, n.10.

the questioning was not “interrogation,” but rather

to the initial volunteered

“follow-up

statement. !2 Since the subsequent statements were made

to Anderson by Mr. Connelly after he was handcuffed and

removed from the street, he certainly was in custody. See

New York v. Quarles, 467 U.S. 649, 655 (1984). And since

Mr. Connelly’s statements were made in response to ques-

tioning by Anderson, the interrogation requirement was

also met. Rhode Island v. Innis, 446 U.S. 291, 301 (1980)

4

12 Brief for the United States at 22-23 n.7, 25.

26

fengnl ane eee

Id., 384 U.S. at 475.

Although an express waiver is not required, “[tJhe

courts must presume that a defendant did not waive his

rights.” North Carolina v. Butler, 441 U.S. 369, 373

(1979). In the present case, although Mr. Connelly stated

that he understood his rights and answered the officers’

questions, under Miranda and Butler this is not enough

to constitute a valid waiver. See also, Tague v. Louisiana,

444 U.S. 469, 471 (1980). Assuming, however, that a

waiver occurred, Mr. Connelly’s impaired mental con-

dition rendered it ineffective.

In Miranda the Court adopted the test formulated in

Johnson v. Zerbst, 304 U.S. 458, 464 (1938)—“an inten-

tional relinquishment or abandonment of a known right or

privilege” —for determining the validity of a waiver of the

constitutional rights to counsel and to silence. Since the

Court in Johnson had also stated that there must be “an

intelligent and competent waiver by the accused,” id. , 304

U.S. at 465, the Court in Miranda indicated that the

waiver must be voluntary as well. Miranda, 384 U.S. at

444, 476. See also, Dix, Waiver in Criminal Procedure: A

Brief for More Careful Analysis, 55 Tex. L. Rev. 193, 200

(1977). Subsequent cases have adopted this view and

emphasized that voluntariness is a component of a waiver

of Miranda rights. “The question is not one of form, but

rather whether the defendant in fact knowingly and vol-

untarily waived the rights delineated in the Miranda

case.” Butler, 441 U.S. at 373. The determination of the

validity of a waiver of Miranda rights is to be made upon

“an inquiry into the totality of the circumstances sur-

rounding the interrogation, to ascertain whether the

accused in fact knowingly and voluntarily decided to forgo

27

his rights to remain silent and to have the assistance of

counsel.” Fare v. Michael C., 442 U.S. 707, 725 (1979). See

also, Edwards v. Arizona, 451 U.S. 477, 482 (1981) (quot-

ing Johnson v. Zerbst, 304 U.S. at 464):

It is reasonably vlear under our cases that waivers of

counsel must not only be voluntary, but must also

constitute a ing and intelligent relinquishment

or abandonment of a known nght or privilege, a

matter which nds in each case “upon the par-

- including the yr — | =

case, , experience, and con-

duct of the accused.”

In Edwards the Court also indicated that “the volun-

tariness of a consent or admission on the one hand, and a

knowing and intelligent waiver on the other, are discrete

inquiries.” Jd., 451 U.S. at 484.

In the recent case of Moran v. Burbine, __. U.S. —_,

106 S.Ct. 1135 (1986), the Court, citing Edwards, reitera-

ted the standards for determining waiver under Miranda:

First the relinquishment of the right must have been

voluntary in the sense that it was the product ofa free

and deliberate choice rather than intimidation, coer-

cion or deception. Second, the waiver must have been

made with a full awareness both of the nature of the

right being abandoned and the consequences of the

decision to abandon it. www the “totality of the

circumstances i e interrogation” reveal

both an uncoerced choice and the requisite level of

comprehension may a court properly conclude that

the Miranda rights have been waived.

Id., _. U.S. at __., 106 S. Ct. at 1141.

The Court’s description of the voluntary component of

the waiver requirement in Burbine substantially resem-

bles that of the traditional due process voluntariness

requirement of confessions which requires the “exercise

28

of ‘a rational intellect and a free will.’” Mincey v. Arizona,

437 U.S. at 398. See also, Elstad, ___ U.S. at ___., 105 S..

Ct. at 1285, 1293 (1985). Given the large body of decisional

law presently existing in the due process area, any deter-

mination of whether a waiver is voluntary should be made

with reference to those circumstances in which a con-

fession is considered to be voluntary in a due process

sense. Since, as established in Argument I, supra, Mr.

Connelly’s psychotic mental condition rendered his con-

fession involuntary in a due process context, his subse-

quent statements should likewise be considered

involuntary for purposes of the voluntary component of

the Miranda waiver requirement.

As in the due process voluntariness of confessions con-

text, the State and the Government contend that a waiver

of constitutional rights can be invalidated only by official

overreaching or government coercion, and not by internal

psychological pressures. Allowing a consideration of such

pressures, the Government asserts, “would force courts

to confront complex and uncertain issues of ‘free will’ in

order to evaluate the propriety of a Miranda waiver, and

make it difficult for police officers to predict in advance

whether a suspect’s waiver would be upheld.” (Brief for

the United States at 29)

However, as indicated in Argument I, supra, this Court

traditionally has considered the mental condition and

characteristics of the defendant in determining whether a

confession is voluntary. Moreover, a totality of circum-

stances standard, by definition, would include the mental

features of a particular defendant, and any lack of predic-

tability in determining the validity of a waiver is attribut-

able more to the nature of the standard than to the factors

which are included or excluded in applying it.

29

The effect of Mr. Connelly’s impaired mental condition

is not limited to the voluntary component of the waiver

requirement. It is applicable as well to the requirements

of a knowing and intelligent waiver. As noted above Dr.

Metzner, in his initial report submitted to the trial court,

concluded that Mr. Connelly was incompetent to proceed

to trial and that his psychosis which resulted in this

incompetence existed at the time of the confession and

statements. In light of this uncontested evidence that Mr.

Connelly was incompetent at the time of the statements

made to police officers in response to questioning, he

clearly could not have knowingly and intelligently, as well

as voluntarily, waived his rights to counsel and to remain

silent.

In discussing the value of waivers in criminal cases the

Court has noted that “{uJnless an individual is incompe-

tent, we have in the past rejected any paternalistic rule

protecting a defendant from his intelligent and voluntary

decisions about his own criminal case.” Mosley, 423 U.S.

at 108-09 (1975) (White, J., concurring). In so stating, the

Court has necessarily recognized that a person who is not

mentally competent may not be able to voluntarily, know-

ingly and intelligently waive his rights. See also, Pate v.

Robinson, 383 U.S. 375, 384 (1966) (“[I]t is contradictory

to argue that a defendant may be incompetent, and yet

knowingly or intelligently ‘waive’ his right to have the

court determine his capacity to stand trial.”); Westbrook

v. Arizona, 384 U.S. 150 (1966) (finding of competence to

stand trial not determinative of competence to waive right

to representation of counsel); Moore v. Ballone, 658 F.2d

218 (4th Cir. 1981) (defendant’s impaired mental condition

invalidated Miranda waiver).

The undisputed evidence of Mr. Connelly’s impaired

mental condition should preclude a determination that he

30

voluntarily, knowingly and intelligently waived his consti-

tutional rights. Such a determination necessarily presup-

poses a “capacity acceptably to evaluate and to choose

among different courses of action.” Dix, supra, at 260.

The testimony of Dr. Metzner refutes the notion that Mr.

Connelly possessed any capacity to choose between exer-

cising or waiving his rights to counsel or to remain silent.

While Dr. Metzner indicated that in his opinion Mr. Con-

nelly had the capacity to know that he was being read his

Miranda rights, he was of the further opinion that Mr.

Connelly “wasn’t able to use that information because of

the command hallucinations that he had experienced.”

(J.A., 26) From Mr. Connelly’s perspective the choice

between waiving or exercising his rights was indis-

tinguishable from a choice between life or death, which, of

course, is no choice at all. Lacking the capacity to make a

conscious choice between these options, Mr. Connelly

could not be said to have waived his rights to counsel and

to remain silent. Thus, the trial court's ruling, supported

as it was by Dr. Metzner’s substantial and uncontradicted

testimony as to Mr. Connelly’s severely impaired mental

condition at the time he made the confession and state-

ments, was correct and the Colorado Supreme Court’s

affirmance of it was, correct as well.

CONCLUSION

For the foregoing reasons, Respondent submits that

the judgment of the Colorado Supreme Court should be

Davip F. VELA

Colorado State Public Defender

Rosin DESMOND

Deputy State Public Defender

/s/

ABELARDO P. BERNAL

Deputy State Public Defender

/s/

Tuomas M. Van CLEAVE, III

Deputy State Public Defender

CouNsEL For RESPONDENT

1362 Lincoln Street

Denver, Colorado 80203

(303) 866-2661