Petition for Writ of Certiorari — Maruca v. Colorado

95 206 AUC 0 41995

OFFICE OF THE CLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1995

PERRY MARUCA,

Petitioner,

VS.

THE PEOPLE OF THE STATE OF COLORADO,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE COLORADO COURT OF APPEALS

Scotr H. RoBINSON

GERASH, Rosinson & MIRANDA, P.C.

1439 Court Place

Denver, Colorado 80202

Telephone (303) 825-5400

Attorney for Petitioner

Perry Maruca

A Great American Print Shop ¢ (303) 825-7975

QUESTIONS PRESENTED FOR #EVIEW

1. Whether the admission of incriminating

statements and evidentiary observations procured

through custodial interrogation in violation of Miranda

can be admitted in a state criminal proceeding under a

“voluntariness” theory, in overt disregard of this Court’s

opinion in Michigan v. Mosley 423 U.S. 96, 96 S.Ct. 321,

46 L.Ed.2d 31° (1975)?

2. Whether the admission of evidence derived

directly from a Miranda violation is “harmless error”

where the resultant testimony included an alleged

acknowledgement of wrongdoing by the accused and

contradictory statements concerning the complaining

witness’ conduct?

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il

TABLE OF CONTENTS

Pages

Questions Presented For Review ............cc.cccseeeeeees i

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COEDS TIGIO basctcens cosocsstintccccesssessencee 1

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Constitutional Provisions and Statutes ................ 2

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PRG bv cisveinsccticstriisceroternrega eee 4

Appendices:

Appendix A: Colorado Court of Appeals Opinion App 1

Appendix B: Colorado Court of Appeals Order App 7

Appendix C: Colorado Supreme Court Order App 8

TABLE OF AUTHORITIES

Cases

Arizona v. Fulminante, 490 U.S. 279,292-294.

111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) ....

Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct.

3138, 82 L.Ed.2d 317 (1984)....................

Bruton v. United States, 391 U.S. 123, 88 S.Ct

1620, 20 L.Ed.2d 476 (1968)...............

Chapman v. California, 368 U.S. 18, 87 S.Ct

824, 17 L.Ed.2d 705 (1967)..............

Colorado v. Connelly, 479 U.S. 157, 165, 107 S.Ct

515, 93 L.Ed.2d 473 (1986)........

Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct

1880, 68 L.Ed.2d 378 (1981)

Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319,

75 L.Ed.2d 229 (1983).............

Lego v. Twomey, 404 U.S. 477, 488, 92 S.Ct. 619,

30 L.Ed.2d 618 (1972)............

Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176,

108 L.Ed.2d 293 (1990)............

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321,

46 L.Ed.2d 313 (1975)......................

Minnick v. Mississippi, 498 U.S. 146, 151, 111 S.Ct

486, 112 L.Ed.2d 489 (1990).............

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602

16 L.Ed.2d 694 (1966) ....................

Pages

1]

Passim

iv

New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626,

ee Ree MIT IIT custeicncsiesossecchccameeanbensianniaabonebeinaditeaualsdadauacalace 10

Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830,

Ee i Cote nieletee ee a 10

Oregon v. Elstad, 470 U.S. 298, 307, 105 S. Ct. 1285,

ee a Ne SE GI icnheseuntrvcconcseescciuisciieemeuscbcases ekadebedbiabinnaasess g

Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct.

ey Pe Race GPE 6 IED siiccx-ecissccnstdsaboneinisidadeateincctaasesceasesemsideemmanaate 10

Sullivan v. Lousiana, 508 U.S.__ 113 S.Ct.__,

+ 3B R 8 ft: Ree eR eee eon ee 13

United States Constitution:

ra ee ee 2

United States Code:

Se I: Oe bs ea ed eat 2

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1995

PERRY MARUCA,

Petitioner,

VS.

THE PEOPLE OF THE STATE OF COLORADO,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE COLORADO COURT OF APPEALS

OPINION BELOW

The opinion of the Colorado Court of Appeals is

set forth in the Appendix, as is a copy of the Order

denying the copy of the appeals court denial of rehearing,

and the order by the Colorado Supreme Court denying

Writ of Certiorari, rendering this a final judgement.

GROUNDS ON WHICH THE JURISDICTION

OF THIS COURT IS INVOKED

28 U.S.C. § 1257(A): Certiorari jurisdiction for

review of state court criminal proceedings.

CONSTITUTIONAL PROVISIONS AND STATUTES

United States Constitution, Amendment V:

No person...shall be compelled, in any criminal

case, to be a witness against himself...

STATEMENT OF THE CASE

Petitioner was convicted of a state criminal

charge of felony menacing arising out of a domestic

dispute between him and his girlfriend, May Okihiro.

Petitioner and Okihiro had become involved in an

extended argument taking place over a two-day period

about the future of their relationship; the police were

not called but Okihiro left, taking her possessions with

her, when petitioner went to work. The police only

became involved in following up a subsequent “missing

person” report filed by petitioner: petitioner’s girlfriend

told the police, after they had located her, that petitioner

had threatened suicide during the course of the

argument, culminating in his allegedly threatening to

“take her with him” while holding a firearm.

Perry Maruca was then told by the police to come

to the station where, in an interview room, after being

told he was under arrest, he invoked his right to remain

2)

~*

EE ee |

silent, advising the inquiring officers unequivocally that

“he did not wish to speak” to them. The trial judge found

that no Miranda advisal was given.

Despite this invocation of the right to remain

silent, however, one of the officers persisted in

questioning petitioner, asking him “where his guns

were.” This inquiry led to petitioner admitting that he

had firearms, that he knew why the detective had asked

him about his guns, acknowledging that it might be

appropriate to turn those firearms over to the officers

for “safekeeping.”

After these incriminating responses, petitioner

and the two officers traveled to his home, where firearms

were observed and seized. In addition, during the course

of this firearms foray, petitioner allegedly made two

additional statements: that he had been “thinking of

taking himself out” and that “he knew that May

Okihiro had left him because she had taken her clothes

with her.” These two remarks were highly

incriminating. The first statement corroborated the

complaining witness’ account of the incident. The latter

utterance was inconsistent with the missing persons

report that petitioner had filed, the document which was

the genesis of the entire investigation.

Despite uncontroverted testimony that Perry

Maruca was questioned while under arrest in a police

interview room, a fact finding that no Miranda warning

was given, and uncontroverted testimony from one of

the officers that he questioned petitioner after the

accused unequivocally stated that he did not wish to

speak with the officers, the trial court held that the

information provided about the handguns was

admissible as “volunteered.” The trial judge disregarded

the Miranda and Mosley decisions entirely, denying

3.

suppression of the statements and subsequent seizures

on the theory that the question asked arose because of

the officers’ duty “to tell people why they are being taken

into custody!”

Despite the essentially uncontroverted facts, and

this curious ruling by the trial court which utterly

ignored the facts, the Colorado Court of Appeals affirmed

the conviction in a 2:1 decision. The Court of Appeals

reached an equally insupportable legal conclusion that

the constitutional violations which took place were

“harmless error.” The Colorado Supreme Court denied

certiorari, making this a final state court judgment.

ARGUMENT

THE STATEMENTS ATTRIBUTED TO PETITIONER AND

RESULTANT EVIDENTIARY OBSERVATIONS MADE BY

THE OFFICERS SHOULD NOT HAVE BEEN ADMITTED

AT TRIAL, AS SUCH EVIDENCE WAS OBTAINED

UNCONSTITUTIONALLY; THIS EVIDENCE WAS

HARMLESS BEYONDA REASONABLE DOUBT

In this state criminal trial, incriminating

statements by the accused and physical evidence seized

as a direct consequence of petitioner’s statements were

admitted at trial. The evidence at the suppression

hearing established the following essential facts

concerning the statements obtained and the consequent

seizures:

1) that petitioner was in custody, and was

not free to leave;

2) that petitioner was advised that he was

under arrest for felony menacing;

4.

3) that petitioner expressed a clear-cut

desire to remain silent;

4) that after invoking his right to remain

silent, petitioner was specifically

questioned without Miranda advisal and

in disregard of his invocation of the right

to remain silent concerning the location of

“his guns;”

5) that such questioning concerning the

whereabouts of guns took place several

days after the alleged incident, when there

was no danger to public safety;

6) that evidence about the statements

elicited and physical evidence thereafter

seized was admitted over defense

objections during petitioner’s trial; and

finally,

7) that the credibility of the complaining

witness was essential to the prosecution’s

case since no physical evidence

substantiated her story, credibility which

was enhanced by the evidence obtained

through custodial interrogation in

violation of Miranda.

These facts require that this unconstitutionally obtained

conviction be set aside.

This Court’s landmark decision in Miranda uv.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966), established the entitlement to be advised of the

5.

right to remain silent and the right to terminate

custodial questioning through the invocation of the Fifth

Amendment. In creating Miranda warnings, this Court

traced the historical underpinnings of the Fifth

Amendment, noting that: “These precious rights were

fixed in our Constitution only after centuries of

persecution and struggle.” Id. at 442. Miranda

established that a proper advisement of rights “is an

absolute prerequisite to interrogation,” but perhaps

more importantly here, definitively directed that if “an

individual is alone and indicates in any manner that he

does not wish to be interrogated, the police may not

question him.” /d. at 445, 471.

An aspect of this Court’s rationale in Miranda

was the recognition of the pervasive persuasiveness of

police interrogation procedures. One form of

interrogation discussed in Miranda was that of

displaying an “air of confidence in the suspect’s guilt,”

that the “guilt of the subject is to be posited as a fact.”

Id. at 450. Just such a technique was utilized here:

despite the invocation of the right to remain silent,

petitioner was specifically questioned about the

whereabouts of “his guns,” as though there was no doubt

that he in fact possessed firearms and that they had

been recently utilized in some sort of altercation with

his girlfriend.

As this Court made clear in Miranda, custodial

interrogation means “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.” /d. at 444. There was no dispute

that Perry Maruca was asked to come to the police

station, was placed under arrest, and thereafter, stated

that he did not wish to speak with the officers yet

custodial interrogation followed. A more patent

6.

Miranda violation can hardly be imagined. As this Court

made manifest in Miranda:

Once warnings have been given, the

subsequent procedure is clear. If the

individual indicates in any .aanner, at any

time prior to or during questioning, that

he wishes to remain silent, the

interrogation must cease. Id. at 473-474.

This right to “cut off” questioning is critical:

without this entitlement, the coercive setting of custodial

interrogation has the effect of overcoming the free will

of persons accused of crime, thus producing

incriminating statements even after Miranda advisal

is given and the desire to remain silent has been

expressed. Id. at 474.

This prophylactic rule is designed to safeguard

an essential freedom. Thus, once the accused indicates

that he or she wishes to remain silent, all interrogation

must cease. All further police-initiated questioning is

proscribed even if the suspect “has been advised of his

rights.” Edwards v. Arizona, 451 U.S. 477, 484, 101

S.Ct. 1880, 68 L.Ed.2d 378 (1981).

Miranda and Edwards require that incriminating

information provided by a suspect subjected to custodial

interrogation after invocation of the right to remain be

excluded from trial. There are no ifs, ands, or buts about

it: the “merit of the Edwards decision lies in the clarity

of its command and the certainty of its application.”

Minnick v. Mississippi, 498 U.S. 146, 151, 111 S.Ct. 486,

112 L.Ed.2d 489 (1990).

Miranda, Edwards, and their progeny establish

indisputably that police officers are not permitted to

question suspects in custody after the accused invokes

the right to remain silent or requests an attorney. This

entitlement has been described in a variety of ways. For

3

example, in Lego v. Twomey, 404 U.S. 477, 488, 92 S.Ct.

619, 30 L.Ed.2d 618 (1972), this Court explained that

Miranda “excludes confessions fiowing from custodial

interrogations unless adequate warnings were

administered and a waiver was obtained.”

Similarly, in Berkemer v. McCarty, 468 U.S. 420,

104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), this Court stated:

In the years since the decision in Miranda,

we have frequently reaffirmed the central

principle established by that case: if the

police take a suspect into custody and then

ask him questions without informing him

of the rights enumerated above, his

responses cannot be introduced into

evidence to establish his guilt. Jd. at 429.

As the Berkemer opinion elucidates, the purpose of

Miranda is to guarantee that the police do not coerce

captive suspects into making incriminating statements,

and “as much as possible to free courts from the task of

scrutinizing individual cases to try to determine, after

the fact, whether particular confessions were voluntary.”

Id. at 433.

Thus, the breadth of Miranda:

The Miranda exclusionary rule, however,

serves the Fifth Amendment and sweeps

more broadly than the Fifth Amendment

itself. It may be triggered even in the

absence of a Fifth Amendment violation.

The Fifth Amendment prohibits the

prosecution in its case in chief only of

compelled testimony. Failure to administer

Miranda warnings creates a presumption

of compulsion. Consequently, unwarned

statements that are otherwise voluntary

8.

within the meaning of the Fifth

Amendment must nevertheless be

excluded from evidence under Miranda.

Thus, in the individual case, Miranda's

preventive medicine provides a remedy

even to the defendant who has suffered no

identifiable constitutional harm. Oregon

uv. Elstad, 470 U.S. 298, 307, 105 S.Ct.

1285, 84 L.Ed.2d 222 (1985).

The presumption of compulsion created by this

Court’s Elstad decision compels the conclusion that this

state court conviction was unconstitutionally obtained:

that damaging incriminating statements and the fruits

thereof were admitted into evidence despite having been

obtained in violation of Miranda and in the face of an

unequivocal invocation of the right to remain silent by

the accused.

In this case, the Colorado courts also thumbed

their judicial noses at Michigan v. Mosley, 423 U.S. 96,

96 S.Ct. 321, 46 L.Ed.2d 313 (1975). In that case,

Richard Mosley told the police after questioning began

that he did not want to answer questions. Although

questioning temporarily terminated, a short time later

subsequent questioning took place. In deciding the

Mosley case, this Court discussed Miranda, and

concluded as follows:

In sum, the Court held in that case that

unless law enforcement officers give

certain specified warnings before

questioning a person in custody, and follow

certain specified procedures during the

course of any subsequent interrogation,

any statement made by the person in

custody cannot over his objection be

Q.

admitted in evidence against him as a

defendant in trial, even though the

statement may in fact be wholly voluntary.

Id. at 99-100 (emphasis supplied).

This was the essence of the error committed by the state

courts here: a later finding of “voluntariness” is not and

has never been a substitute for Miranda advisal and

the duty to “scrupulously honor” a suspect’s invocation

of the right to remain silent.

There can be little doubt that the question asked

was custodial interrogation. Custodial questioning

includes those methodologies “that the police should

know is reasonably likely to evoke an incriminating

response from a suspect....” Rhode Island v. Innis, 446

U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

There was no claim by the inquiring officer that his

question was prompted by a concern for public safety or

by exigent circumstances.

On the contrary, the incident with Okihiro had

occurred days before, and the investigation had only

taken place because of the report filed by petitioner who

was concerned about the whereabouts of his girlfriend.

Indeed, at the time of inquiry, the police had no

information from the complaining witness to the effect

that shots had been fired during the incident, although

Okhiro’s story in that regard changed dramatically at

trial. Cf. New York v. Quarles, 467 U.S. 649, 104 S.Ct.

2626, 81 L.Ed.2d 550 (1984)(“public safety” exception

to the Miranda exclusionary rule).

This is not a case where the suspect personally

initiated further discussions with law enforcement

authorities. See, e.g., Oregon v. Bradshaw, 462 U.S.

1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). Nor does

it involve a situation where the evidence was offered in

10.

rebuttal, to impeach the accused after testimony. See

Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108

L.Ed.2d 293 (1990).

In this case the evidence obtained was introduced

in the prosecution’s case in chief, to help convict the

defendant, who did not testify at trial. The admissions

in this case flowed directly from “coercive activity” by

the State. See Colorado v. Connelly, 479 U.S. 157, 165,

107 S.Ct. 515, 93 L.Ed.2d 473 (1986). The claim that

petitioner subsequently “consented” to the search of his

home runs afoul of well-established case law to the

contrary. See, e.g., Florida v. Royer, 460 U.S. 491, 103

S.Ct. 1319, 75 L.Ed.2d 229 (1983).

The “harmless error” analysis by the majority of

the Colorado Court of Appeals was also fatally flawed,

premised as it was on the theory that the admission of

testimony concerning the statements and subsequent

evidentiary observations and seizures had no impact

on the jury, as two of the three appellate judges

concluded. This felony menacing conviction was

premised entirely on the credibility of the complaining

witness. Her believability was substantially bolstered

by the incriminating and inconsistent remarks

attributed to Perry Maruca and the officers’ own

observations about the existence of firearms in the home.

It is simply impossible to fairly conclude that

testimony about petitioner’s acknowledgement that: his

guns were properly turned over to the police for

“safekeeping;” that he had been contemplating suicide,

and his inconsistent comments about why his girlfriend

had moved out; had no effect on the verdict, let alone

that such evidence was harmless beyond a reasonable

doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct.

824, 17 L.Ed.2d 705 (1967). The statements attributed

to Perry Maruca included his concession that there was

a reason to turn his guns over to the police for

“safekeeping” and that he had been contemplating

suicide. These reputed remarks directly corroborated

the claim by his girlfriend that, while holding a firearm,

he claimed that he was going to “take her with him.”

Such evidence was hardly harmless; on the

contrary, this evidence was devastating, perhaps “the

most probative and damaging evidence” introduced into

evidence in this cases in a manner inconsistent with

“the thesis that ours is not an inquisitorial system of

criminal justice.” Arizona v. Fulminante, 490 U.S. 279,

292-294, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). As

this Court acknowledged in Fulminante:

A confession is like no other evidence.

Indeed, “the defendant’s own confession is

probably the most probative or damaging

evidence that can be admitted against

him... [T]he admissions of a defendant

come from the actor himself, the most

knowledgeable and unimpeachable source

of information about his past conduct.

Certainly, confessions have profound

impact on the jury, so much so that we may

justifiably doubt its ability to put them out

of mind even if told to do so.” Jd. at 296,

quoting Bruton v. United States, 391 U.S.

123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

Thus, as this Court even more recently opined:

The inquiry, in other words, is not whether,

in a trial that occurred without the error,

a guilty verdict would surely have been

rendered, but whether the guilty verdict

actually rendered in this trial was surely

}?

a.

unattributable to the error. Sullivan v.

Lousiana, 508 U.S. __ 113 S.Ct. _, 124

L.Ed.2d 182, 189 (1993).

As the dissenting state appellate judge noted, the

testimony concerning the incriminating statements

attributed to petitioner and the evidentiary observations

by the officers corroborated the account of the incident

provided by the complaining witness, testimony

unsubstantiated by physical evidence or any other

evidence. No fair reading of the record could possibly

give rise to a supportable conclusion that the challenged

evidence was harmless beyond a reasonable doubt, that

the guilty verdict in petitioner’s trial was “surely

unattributable” to the improperly obtained evidence, as

is required under Sullivan. As a consequence, petitioner

prays for an order granting certiorari, to reverse the

judgment of the Colorado Court of Appea!s affirming

petitioner’s conviction of felony menacing.

Respectfully submitted,

Scotr H. Ropinson

GERASH, ROBINSON & MIRANDA, P.C.

1439 Court PLACE

DENVER, CoLoRADO 80202

TELEPHONE (303) 825-5400

Attorney for Petitioner

Perry Maruca

App. |

APPENDIX A

COLORADO COURT OF APPEALS

No. 93CA1033

THE PEOPLE OF THE STATE OF

COLORADO,

Plaintiff-Appellee,

v.

PERRY MARUCA,

Defendant-Appellant

Appeal from the District Court of Boulder County

Honorable Joseph Bellipanni, Judge

No. 92CR1078

(Filed October 6, 1994)

DIVISION IV JUDGEMENT AFFIRMED

Opinion by JUDGE HUME

Davidson, J., concur

Pierce, J., * dissents

Gale A. Norton, Attorney General

Stephen K. ErkenBrack, Chief Deputy Attorney General

Timothy M. Tymkovich, Solicitor General

Eric V. Field, Assistant Attorney General

Denver, Colorado

Attorneys for Plaintiff-Appellee

Gerash, Robinson & Miranda, P.C.,

Scott H. Robinson

Denver, Colorado

Attorney for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of

the Colo. Const. art. VI, Sec. 5(3), and §24-51-1105, C.R-S.

(1993 Cum. Supp.).

App. 2

Defendant, Perry Maruca, appeals from a judgment of

conviction entered upon a jury verdict finding him guilty of

felony menacing. We affirm.

I.

The principal issue raised by defendant concerns the trial

court's refusal to suppress testimony concerning weapons found

at the defendant's apartment and statements that defendant made

concerning his suicidal thoughts. The trial court ruled that this

evidence was obtained from defendant's volunteered statements.

We perceive no reversible error.

Defendant was asked by police to come to the police

station, where he was arrested for felony menacing. After his

arrest he became agitated and quite vocal, and there is evidence

to support the trial court's finding that he was not given Miranda

warnings at that time. After the arresting officers had calmed

him, one of them asked defendant where his guns were. Defen-

dant initially refused to answer that question, but after further

reflection and without further interrogation, he volunteered to

surrender his guns to the police for safekeeping.

The officers then accompanied defendant to his residence

where he turned the guns over to them and made a statement

regarding his previous thoughts of suicide. Still later, defendant

made a third statement to the effect that he knew the victim was

leaving him because she had "taken a lot of clothes with her."

At trial, the guns were not placed into evidence. One of

the officers testified about the suicide statement and both officers

testified that guns matching the description given by the victim

were recovered from defendant's apartment and that they were in

working order.

App. 3

Here, the evidence is sufficient to support the trial court's

finding that defendant's statements to police were voluntary and

not the product of coercion by virtue of the custodial setting in

which they were made. The statements made by defendant

during and after the visit to his home were volunteered rather than

being made in response to any police interrogation. They were

made long after the sole inquiry made by the officers at the police

station. Similarly, defendant's physical surrender of the guns at

his home was a volitional act performed after he had initially

exercised his right to remain silent and without further request or

inquiry by the officers.

Even if we assume that the initial statement indicating

defendant's willingness to surrender the guns was elicited in

violation of the Miranda rule, the U.S. Supreme Court has held

that, under some circumstances, the improper admission of such

evidence may be considered harmless if other evidence of the

accused's guilt isoverwhelming. See Arizona v. Fulminante, 499

U.S. 279, 111 S. Ct. 1246, 113 L.Ed.2d 302 (1991); Milton v.

Wainwright, 407 U.S. 371, 92 S.ct. 2174, 33 L.Ed.2d 1 (1972).

Here, the defense presented no evidence. The bulk of the

People's evidence consisted of the extensive testimony by the

victim who described in detail how defendant had threatened her

with the guns and indicated that he intended to commit suicide

and "take her with him." In view of this testimony, the brief

corroborative testimony of the police officers relating to the

weapons and to defendant's statements was harmless.

Our review of the record leaves us with no reasonable

doubt that the jury in this case would have reached the same

verdict without hearing the testimony of either officer and that

there was overwhelining evidence of guilt, fairly established by

App. 4

the state through the use of evidence which is not being

challenged. See Milton v. Wainwright, supra. See also Chapman

v. California, 386 U.S. 18,87 S.Ct. 824, 17 L.Ed.2d 705 (1967);

People v. Wilson, 709 P.2d 29 (Colo. App. 1985).

_ Therefore, we conclude that any error in the trial court's

refusal to suppress the statements made by defendant and the

ensuing testimony regarding the weapons that flowed from those

statements was harmless beyond a reasonable doubt.

Defendant also contends that he was denied a fair trial

when, during closing argument, the prosecutor implied that more

serious charges could have been filed and indicated his own

personal knowledge of the alleged embarrassment of the victim.

We disagree.

In closing argument, counsel is entitled to argue all reasonable

inferences from the facts and evidence, People v. Constant, 645

P.2d 843 (Colo. 1982), cert. denied, 459 U.S. 832, 103 S.Ct. 73,

74 L.Ed.2d 72 (1982). Counsel may, with propriety, comment

on how well and in what manner a witness measures up to the

tests of credibility set forth in the instructions. People v. Lucero,

677 P.2d 370 (Colo. App. 1983), cert. dismissed 706 P.2d 1283

(Colo. 1985). We perceive no reversible error in the statements

complained of here.

Judgement affirmed.

JUDGE DAVIDSON concurs.

JUDGE PIERCE dissents.

JUDGE PIERCE dissenting.

I respectfully dissent.

[ cannot agree that the testimony of the police officers in

this action was harmless beyond a reasonable doubt.

The case had to stand or fall on the credibility of the

complaining witness. A great deal of her testimony concerned

the actions and statements of the defendant regarding his threats

of suicide. The testimony also concerned descriptions of the

weapons and their location in the apartment.

The cross-examination also pointed out some discrepan-

cies. The most serious of which was that in her testimony the

complaining witness made references to a shot probably being

fired. She admitted that she had not informed the police of this

fact prior to her testimony. The testimony of the police officers,

the only other witnesses, gave strong support both to the location

of the weapons, their appearance, and that they were capable of

being fired. Their testimony also gave credance to the victim's

several statements regarding the intent to commit suicide by the

defendant. I would rule that the prosecution has not carried its

burden of proving that this evidence was harmless beyond a

reasonable doubt.

When a harmless error ruling is not available, the usual

rules regarding the type of interrogation involved here apply.

In Miranda y. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966), The United States Supreme Court promul-

gated safeguards to protect the constitutional rights of persons

subjected to custodial police interrogation. After prescribing

App. 6

certain warnings which the police must give before questioning

begins, the court stated that if the individual indicates in any

manner, at any time prior to or during questioning, that he wishes

to remain silent, then interrogation must cease. That principle

was violated here.

In People v. Thomas, 839 P.2d 1174, 1179 (fn. 4) (Colo.

1992), the Colorado Supreme Court stated; "If statements are

made while in custody, such statements will be supressed if

Miranda warnings have not been given, whether or not they are

voluntarily made." See also Oregon v. Elstad, 470 U.S. 298, 105

S.Ct. 1285, 84 L.Ed.2d 222 (1985) (statements taken in violation

of Miranda, though voluntary, must be excluded from evidence

in the prosecution's case).

Here, it is clear that the defendant was under arrest and in

custody and had not been given Miranda warnings. He refused

to talk to police, but they continued their interrogation and asked

him where the guns were. All of his statements thereafter and the

recovery of the weapons were the fruit of the "poisonous tree"

and should have been supressed. Wong Sun v. United States, 371

U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); People v.

Breidenbach, 875 P.2d 879 (Colo. 1994).

Accordingly, I would reverse the judgment and remand

the cause to the trail court for a new trial.

App. 7

APPENDIX B

THE COURT OF APPEALS OF THE STATE OF COLORADO

Case Number 93CA 1033

ORDER

PEOPLE V PERRY MARUCA

Upon consideration of the Petition for Rehearing filed by the

Appellant herein, the Petition is hereby DENIED. Pierce, J.

would GRANT. It is ordered that issuance of the Mandate is

stayed to and including December 05, 1994 provided that if a

Petition for Writ of Certiorari is timely filed with the Supreme

Court of the State of Colorado, the stay shall remain in effect until

disposition of the cause by the Supreme Court.

BY THE COURT:

Hume, J.

Davidson, J.

Pierce, J.

DATED: November 03, 1994

(SEAL)

App. 8

APPENDIX C

SUPREME COURT, STATE OF COLORADO

CASE NO. 94SC696

CERTIORARI TO THE COLORADO COURT OF APPEALS, 93CA 1033

DISTRICT COURT, BOULDER COUNTY, 87CR625

ORDER OF COURT

PERRY MARUCA,

Petioner.

THE PEOPLE OF THE STATE OF COLORADO.

Respondent.

Upon consideration of the Petition for Writ of Certio

rari to the Colorado Court of Appeals, and after review of the

record, the briefs, and the judgment of said Court of Appeals,

IT IS THIS DAY ORDERED that said Petition for

Writ of Certiorari shall be, and same hereby is, DENIED

BY THE COURT, EN BANC, JUNE 5, 1995

Cc.

App. 9

Scott H. Robinson

GERASH, ROBINSON, & MIRANDA, P.C.

1439 Court Place

Denver, CO 80202

Eric V. Field

Assistant Attorney General

Criminal Enforcement Section

Honorable Joseph Bellipanni

Boulder County District Court

P.O. Box 4249

Boulder, CO 80306-4249

Clerk of the District Court

Boulder County District Court

P.O. Box 4249

Boulder, CO 80306-4249

Patrick H. Sanford, Clerk

Colorado Court of Appeals

(SEAL)