Opposition Brief — Maruca v. Colorado

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IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1995

PERRY MARUCA,

Petitioner,

vs.

THE STATE OF COLORADO,

Respondent.

On Petition for Writ of Certiorari

to the Colorado Court of Appeals

RESPONDENT’S BRIEF IN OPPOSITION TO

CERTIORARI

GALE A. NORTON

Attorney General

STEPHEN K. ERKENBRACK

Chief Deputy Attorney General

TIMOTHY M. TYMKOVICH

Solicitor General

JOHN DANIEL DAILEY

Deputy Attorney General

ROBERT MARK RUSSEL*

First Assistant Attorney General

ERIC V. FIELD

Assistant Attorney General

Criminal Enforcement Section

Attomeys for Respondent

1525 Sherman Street, Sth Floor

Denver, Colorado 80203

Telephone: (303) 866-5785

*Counsel of Record

:

:

:

;

:

:

:

QUESTIONS PRESENTED FOR REVIEW

1. Whether the evidence reasonably supports the

Colorado trial court’s finding that Petitioner, in custody and

un-Mirandized, voluntarily consented to (indeed, invited) a

police search and seizure of his two handguns in his home?

(Or, alternatively, whether the evidence reasonably

supports admission of the search-observation testimony under

the doctrines of inevitable discovery or independent

evidence?)

2. Whether the evidence reasonably supports the

Colorado trial court’s findings that none of three un-

Mirandized, custodial admissions by Petitioner was preceded

by interrogation and that all were voluntary?

3. Whether the evidence reasonably supports the

Colorado Court of Appeals’ alternative conclusion that there

was overwhelming evidence of Petitioner’s guilt beyond a

reasonable doubt regardless of the three admissions and the

search-observation testimony, rendering any errors in their

admission harmless beyond a reasonable doubt?

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW ....... i

STATEMENT OF THE CASE .............. 1

SUMMARY OF THE ARGUMENT .......... 8

La. £ be 6 op ee eee 64 bs 68 9

Il. THE TOTALITY OF THE EVIDENCE

REASONABLY SUPPORTS THE TRIAL

COURT’S FINDING OF VOLUNTARY

CONSENT BY PETITIONER TO THE

SEARCH AND SEIZURE OF HIS GUNS.

(THE RECORD ALSO REASONABLY ES-

TABLISHES INEVITABLE DISCOVERY OR

INDEPENDENT EVIDENCE OF HIS

I i ue 0a 6 Wb 6 6 0 0 2 600 0 9

Il. THE TOTALITY OF THE EVIDENCE

REASONABLY SUPPORTS THE TRIAL

COURT’S FINDING THAT PETITIONER’S

THREE UN-MIRANDIZED ADMISSIONS

WERE VOLUNTARY AND NOT

PRECEDED BY INTERROGATION. .... 12

Il. THE RECORD REASONABLY SUPPORTS

THE CONCLUSION THAT THERE WAS

OVERWHELMING EVIDENCE OF GUILT

BEYOND A REASONABLE DOUBT

WITHOUT THE ADMISSIONS AND THE

SEARCH-OBSERVATION TESTIMONY. . 17

OE a ee re 19

TABLE OF AUTHORITIES

CASES

Arizona v. Fulminante, 499 U.S. 279, 111

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

Chapman v. California, 386 U.S. 18, 87 S.

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

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

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

Dandridge v. Williams, 397 U.S. 471,

90 S. Ct. 1153, 25 L. Ed. 2d

a ks, ERE Le eee eer ee

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

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

Illinois v. Gates, 462 U.S. 213, 103 S.

Ct. 2317, 76 L. Ed. 2d 527 (1983) ..

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

619, 30 L. Ed. 2d 618 (1972) .......

Michigan v. Mosley, 423 U.S. 106, 96 S.

Ct. 321, 41 L. Ed. 2d 313 (1975) ...

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

Ct. 1602, 16 L. Ed. 2d 694 (1966) ..

Murray v. United States, 487 U.S. 533 108

S. Ct. 2529, 101 L. Ed. 2d 472 (1988) ....

PAGE

TABLE OF AUTHORITIES

CASES PAGE

Nardone v. United States, 308 U.S. 338, 60

S. Ct. 266, 84 L. Ed. 307 (1939) ......----: 17

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

Ct. 2626, 81 L. Ed. 2d 550 (1984) ....... 13-15

Nix v. Williams, 467 U.S. 431, 104 S. Ct.

2501, 81 L. Ed. 2d 377 (1984) .......-.-. 11, 12

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

Ct. 2830, 77 L. Ed. 2d 405 (1983) ...... 10, 16

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

S. Ct. 1682, 64 L. Ed. 2d 297 (1980)... .. 13, 15

Schneckloth v. Bustamonte, 412 U.S. 235,

93 S. Ct. 2041, 36 L. Ed. 2d 854

(TD) 6 cccdvdeasets rte ¢er'n 9-11, 15, 16

United States v. Gay, 774 F.2d 368 (10th

. M.. ) PPRPPreuLe wet eee ae 13

United States v. Mendenhall, 446 U.S. 544,

100 S. Ct. 1870, 64 L. Ed. 2d 497

(1GGD) nc cece rscuveeesesnsreresers 9

STATUTES

§ 18-3-206, Colo. Rev. Stat. (1986) ........-.+--: 1,2

vi

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1995

PERRY MARUCA,

Petitioner,

vs.

THE STATE OF COLORADO,

Respondent.

On Petition for Writ of Certiorari

to the Colorado Court of Appeals

RESPONDENT’S BRIEF IN OPPOSITION TO

CERTIORARI

STATEMENT OF THE CASE

Petitioner, Perry Maruca, seeks certiorari review of the

Colorado Court of Appeals’ affirmance of his conviction of

felony menacing, a class 5 felony violating § 18-3-206,

Colo. Rev. Stat. (1986). The Colorado Supreme Court

denied certiorari. The facts of his crime and of the legal

issues he raises are summarized as follows.

A. FELONY MENACING (TRIAL EVIDENCE)

Against Petitioner Maruca’s will, his fiance, Dr. May

Okihiro, wanted to end their engagement, move out, and

terminate their rocky, three-year relationship. One day they

argued about it for an hour or two, then she backed off.

The next morning Petitioner re-started the argument, indi-

cating now that he was going to kill himself. He took a bag

that she believed contained his guns and drove away.

When Petitioner came home, May renewed her insis-

tence that they go their separate ways. This angered him.

Then he said, "That’s it then, I wasn’t going to do it but

after reading your letter [that she had just given him], I am

just going to do it here." Then he brought two handguns in

from his car.

Very angry, Petitioner continued to threaten to kill

himself. Moving fast, he looked around upstairs for bullets.

May begged him not to do it and threatened to call the

police. Armed with at least one gun, he grabbed the phone

from her, went downstairs, grabbed another phone, and put

the two phones in his car.

Then he went back upstairs, still threatening to kill

himself. May tried to grab the gun or guns from him and he

wrestled with her. She ran into another room and picked up

a third phone. Still armed, he said, "If you call the police,

I will take you with me. Is that what you want me to do.

Is that what you want me to do? Do you want me to take

you with me?"

She said no; he reached around her and grabbed the

third phone from her. He was very agitated and angry. She

was afraid he was going to kill both of them. He pulled the

phone out of the wall and broke the receiver. She ran

downstairs. Upstairs he said, "Well, I am just going to do

it now," counted aloud down to one, and fired.’ She

' However, firing the gun is not an element of the crime of

felony menacing. § 18-3-206, Colo. Rev. Stat. (1986). The

elements are: "by any threat or physical action, knowingly

places or attempts to place another person in fear of imminent

2

screamed and ran back upstairs, and he said, "This is what

it’s going to sound like when I do it."

Petitioner then bullied May verbally, repetitively, for

another hour or two. A fourth phone rang, and he would

not let her answer; her friend Deborah left a message.

Deborah called back four or five times, but Petitioner re-

fused to let May answer. He became more and more angry

in response to the ringing. May finally insisted on

answering and told Deborah she was okay. Then he angrily

made May call her back and tell her not to call the police.

He continued to harangue May that evening until he calmed

down and fell asleep.

The harangue continued the next morning. Petitioner

repeated a previous threat to make May’s life miserable if

she did not marry him. That night, when he was out, she

departed, first going to Deborah’s house, then to the Boulder

Safe House. She took her clothes and left him a note that

she had gone to the safe house.

Petitioner thereafter reported May to the police as

missing. When the police located and talked to her at the

safe house, she informed them of the menacing incident, in-

cluding his threats to kill himself and her. She also related

her departure from Petitioner’s home, including taking her

clothes and leaving him a note. The police then phoned him

and asked him to come to the Justice Center to "chat."

(They did not "order" him to do so, as his Petition claims at

p. 2.)

serious bodily injury . . . by the use of a deadly weapon... .

Id.

B. OFFICERS’ SUPPRESSION TESTIMONY

At the suppression hearing, Deputy Scott and Detective

Norton testified as follows.

1. Arrest & Non-Advisement; "Where

Are the Guns?"; Refusal to Answer

Petitioner was taken to an interview room with Deputy

Scott and Detective Norton. Scott advised Petitioner he was

being arrested, for felony menacing.

No interrogation commenced. Rather, Petitioner imme-

diately became very upset and agitated, volunteering that he

did not wish to speak to the officers, denying the charge,

and saying he wanted to leave. Scott had been preparing to

give Petitioner the Miranda advisement, but overlooked and

omitted it in the confusion of both calming Petitioner down

and putting himself in a defensive position against possible

violence from Petitioner.

After Petitioner was calmed down, the officers said only

one thing: Detective Norton asked Petitioner, "Where are

the guns?" Petitioner replied that he was not going to tell

them. The officers said nothing more.

2. Volunteered Statement: Offer to

Surrender the Guns

About a minute passed in silence. The officers said

nothing. They did nothing to elicit further response. Detec-

tive Norton was thinking about the fact that he would have

to get a search warrant.

Then Petitioner volunteered to take them to his home

and give them the guns "for safekeeping." The officers did

not accept "safekeeping" as a limitation on receipt of the

guns. Nor did they did make any further statement or re-

quest about the guns. Detective Norton did explain that

Petitioner would have to go handcuffed in a patrol car with

Deputy Scott. Petitioner agreed.

3. Two Later Volunteered Admissions

At Petitioner’s house the officers followed him and he

showed them where two handguns were. The officers seized

them. Petitioner’s demeanor was "real cooperative” and

everyone’s tone of voice was normal.

Before Petitioner and the officers left his house, they

gave water to Petitioner’s dog. They had been at the house

15 to 20 minutes. Then Petitioner volunteered to Detective

Norton that he had been thinking about "taking himself out"

but had decided not to because he had too much to lose.

The officers had not asked him any questions prior to this

statement and had not done anything to try to elicit it.

Going back to the Justice Center with Deputy Scott,

Petitioner volunteered that he had known May was leaving

because she had taken clothes with her. Again, the officers

had not said anything to Petitioner before that statement or

done anything to try to elicit it.

C. PETITIONER’S SUPPRESSION TESTIMONY

Petitioner testified at the suppression hearing that he was

age 33, working as a registered nurse for the University of

Colorado (holding a four-year degree in nursing), and getting

a degree in mechanical engineering. He said that when he

5

was with the officers his thinking was not confused and he

understood what they said.

His testimony reasonably supported, and did net

contradict, the voluntariness of his offer and consent to

search, as well as the voiuntariness of his two later state-

ments. His testimony reasonably supported, and did not

contradict, the complete absence of questioning other than

the request for the location of the guns, and the complete

absence of coercive conduct or statements.

D. SUPPRESSION DENIED; EVIDENCE AT TRIAL

The state trial court found that Petitioner received no

Miranda advisement, but was not interrogated. The trial

court also found that Petitioner voluntarily gave the guns to

the officers, without the officers accepting the "safekeeping"

limitation he initially proposed.

Both officers testified at trial to Petitioner’s offer and

surrender of the guns "for safekeeping.” They said guns

matching the description given by the victim were recovered

in working order from Petitioner’s home. Victim May had

already testified that Petitioner had one or two handguns in

his hands when he was threatening to kill himself and her.

The guns were not placed into evidence.

The officers also testified at trial to Petitioner’s

Statements to them that he had intended to kill himself and

that he had known May was leaving because she had taken

her clothes. Again, May had already told the jury about his

threats to kill himself and about having left him a departure

note and taken her clothes.

Petitioner presented no evidence at trial.

E. AFFIRMANCE ON APPEAL

Based on the preceding essentially uncontroverted facts,

the Colorado Court of Appeals affirmed, as follows.

Consensual Search. The court of appeals held the

evidence sufficient to support the trial court’s finding that

Petitioner’s offer to take the police home and give them his

guns was "voluntary and not the product of coercion." The

court added that "defendant’s physical surrender of the guns

at his home was a volitional act performed after he had ini-

tially exercised his right to remain silent and without further

request or inquiry by the officers."

Volunteered Later Statements. The court of appeals

held that the two later admissions "were volunteered rather

than being made in response to any police interrogation.

They were made long after the sole inquiry made by the offi-

cers at the police station."

Harmlessness Beyond Reasonable Doubt; Overwhelm-

ing Evidence of Guilt. The court of appeals held that, even

if the search offer was elicited in violation of Miranda, the

admission of its fruit (the officers’ observation testimony)

was harmless beyond a reasonable doubt, since other

evidence of the accused’s guilt was overwhelming.

Victim’s Testimony. The court of appeals particularly

noted the independent evidence of the three admissions,

citing "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.” The court thus viewed the officers’ "brief cor-

roborative testimony” about the guns and about Petitioner’ s

Statements as cumulative to May’s independent, overwhelm-

ing evidence, and thus (if erroneous) harmless beyond a

reasonable doubt.

SUMMARY OF THE ARGUMENT

The Petition for Writ of Certiorari should be dismissed,

for it presents no new legal issue and turns on essentially

factual claims challenging trial court findings and appellate

conclusions that all have reasonable support in the evidence.

Specifically:

As the appellate court concluded, the evidence reason-

ably supports the trial court’s finding that the search and

seizure of Petitioner’s two handguns in his home (at his

invitation) was consensual, hence that testimony about it was

admissible. Alternatively, the evidence reasonably supports

affirmance under either the inevitable discovery or

independent evidence doctrine.

As the appellate court also concluded, the evidence

reasonably supports the trial court’s finding that none of the

three un-Mirandized admissions (not even the first) was

preceded by interrogation and that each was voluntary.

The evidence reasonably supports the appellate court’s

alternative conclusion that any error was harmless beyond a

reasonable doubt, given the overwhelming evidence of Peti-

tioner’s guilt beyond a reasonable doubt, even without the

three admissions and the search-observations.

ARGUMENT

I, THE TOTALITY OF THE EVIDENCE

REASONABLY SUPPORTS THE TRIAL

COURT’S FINDING OF VOLUNTARY

CONSENT BY PETITIONER TO THE

SEARCH AND SEIZURE OF HIS GUNS.

(THE RECORD ALSO REASONABLY ES-

TABLISHES INEVITABLE DISCOVERY

OR INDEPENDENT EVIDENCE OF HIS

GUNS.)

A. CONSENSUAL SEARCH

Courts determine whether consent to a search is volun-

tary by examining the totality of the circumstances. United

States v. Mendenhall, 446 U.S. 544, 557, 100 S. Ct. 1870,

64 L. Ed. 2d 497 (1980). The State must prove consent was

freely and voluntarily given. Florida v. Royer, 460 U.S.

491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). The

proof must be by a preponderance of the evidence. See Lego

v. Twomey, 404 U.S. 477, 488-89, 92 S. Ct. 619, 30 L. Ed.

2d 618 (1972); Schneckloth v. Bustamonte, 412 U.S. 235, 93

S. Ct. 2041, 36 L. Ed. 2d 854 (1973). It is a question of

fact; the reviewing court must affirm unless the trial court’s

finding is clearly erroneous. Royer, supra.

A voluntary consent to a search is one that is "the

product of an essentially free and unconstrained choice by its

maker." Schneckloth, supra, 412 U.S. at 225. The question

is whether the defendant’s will was "overborne." Jd. 412

U.S. at 226. That is: was the defendant’s consent coerced?

See id. 412 U.S. at 227-28.

Determining factors include the defendant’s age, edu-

cation, intelligence, experience, and conduct; the length of

time involved; and the conduct and statements of the police.

Oregon v. Bradshaw, 462 U.S. 1039, 1046, 103 S. Ct.

2830, 77 L. Ed. 2d 405 (1983); Schneckloth, 412 U.S. at

226. Knowledge of the right to refuse is a factor, but not a

sine qua non. Id. 412 U.S. at 227, 232-34. Consent is not

the same as waiver of rights and does not require waiver.

Id. 412 U.S. at 235-46.

Here the record reasonably supports the trial court’s

finding that Petitioner voluntarily offered the search and

seizure of his guns. His age, intelligence, occupation,

course of study, and testimony all reasonably support a free,

unconstrained decision. There were no coercive words or

conduct. His state of mind by then was calm.

He had been asked, "Where are the guns?", but had

immediately refused to answer; and the officers had said

nothing more and had not tried to persuade him to answer.

Cf. Michigan v. Mosley, 423 U.S. 106, 104-05, 96 S. Ct.

321, 41 L. Ed. 2d 313 (1975) (interrogation case; held,

assertion of silence was fully respected when officers did not

continue questioning or try to persuade suspect to reconsider;

thus later admission was volunteered).

Here, the search and seizure were Petitioner’s idea. So

was limiting them to "safekeeping" purposes (though he in-

accurately implies the contrary at p. 3 of his Petition). The

police did not accept that limitation, and his own testimony

and conduct reasonably support the finding that he did not

insist on or expect performance of that limitation.

Nor did his words, "for safekeeping", imply, as the

Petition claims, some substantive admission of guilt. His

suppression testimony and the officers’ testimonies reason-

10

ably indicate that he meant merely that he wanted his guns

kept safe while he was in jail.

Under Royer, supra, and Schneckloth, supra, the

consent to search and seizure was thus reasonably found to

be voluntary. Thus the testimony about the search and

seizure was fully admissible. See Royer, supra.

B. INEVITABLE DISCOVERY AND

INDEPENDENT EVIDENCE

Alternatively, evidence initially discovered in an uncon-

stitutional manner may be received if the record shows by a

preponderance that the same evidence inevitably would have

been obtained lawfully in the normal course of police inves-

tigation. Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct.

2501, 81 L. Ed. 2d 377 (1984). It likewise may be received

if the record shows by a preponderance that the evidence

would have been discovered by means wholly independent of

any constitutional violation. Jd. 467 U.S. at 443-44.

The focus of analysis is not what might have been done,

but what investigatory measures necessarily or inevitably

would have been taken, even absent the police intrusion in

question. See id. Factors to consider are whether: (1) the

searchers were already seeking the specific evidence obtained

by that intrusion; and (2) in the "natural and probable course

of events," the search would soon have led to the discovery

without that intrusion. Jd.

Here, the officers would inevitably have found Petition-

er’s guns. Detective Norton started planning to get a search

warrant as soon as Petitioner refused to provide the location;

only Petitioner’s change of mind prevented the detective

ll

from doing so. Petitioner was in custody and could not re-

move the guns.

Similarly, Victim May had independently already told

the officers that Petitioner had them, giving the police

probable cause for a search warrant, see Illinois v. Gates,

462 U.S. 213, 238-39, 103 S. Ct. 2317, 76 L. Ed. 2d 527

(1983).

Thus even if, arguendo, the trial court had erred in

finding there was no voluntary consent to the search, the

admission of the gun-observation evidence was reasonable

and must be affirmed, either as a matter of inevitable

discovery, see Nix, supra, or of independent evidence, see

id.; Murray v. United States, 487 U.S. 533, 537-39, 108 S.

Ct. 2529, 101 L. Ed. 2d 472 (1988).?

Il. THE TOTALITY OF THE EVIDENCE

REASONABLY SUPPORTS THE TRIAL

COURT’S FINDING THAT PETI-

TIONER’S THREE UN-MIRANDIZED

ADMISSIONS WERE VOLUNTARY AND

NOT PRECEDED BY INTERROGATION.

A. NO MIRANDA WITHOUT INTERROGATION

When a suspect makes a statement while in custody and

under interrogation, he must be advised inter alia of his

right to remain silent. Miranda v. Arizona, 384 U.S. 436,

86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

* This is so, even though the Colorado Court of Appeals did

not discuss the two doctrines (the State had asserted both). See

Dandridge v. Williams, 397 U.S. 471, 475, n.6, 90 S. Ct.

1153, 25 L. Ed. 2d 491 (1970).

12

"Interrogation" is typically found to exist when there

are: (1) express questions by a police officer, or (2) words

or acts by an officer that he should know are reasonably

likely to elicit an incriminating response. Rhode Island v.

Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 64 L. Ed. 2d

297 (1980). The existence of interrogation turns primarily

on the perception of the suspect, not on the intent of the

Officer. Id. 446 U.S. at 301.

B. FIRST ADMISSION: POSSESSION OF THE GUNS

1. Non-Accusatory Request Is Not

Interrogation.

A non-accusatory request that a person consent to a

search is not interrogation. United States v. Gay, 774 F.2d

368, 379 (10th Cir. 1985). See Innis, supra.

In Petitioner’s case, after informing him of his arrest

and charge, an officer asked Petitioner one, single question:

"Where are the guns?” This was non-accusatory, and it

reasonably implied a request for consent to a search. The

Petitioner patently perceived it that way, and his percep-

tion controls. See Innis. Thus, the question was not an

interrogation, Gay, supra; see Innis. There was thus no

error in the admission of Petitioner’s answer. See Innis.

2. Public-Safety Inquiry is Not

Interrogation.

Asking a suspect where a gun is located is not interro-

gation when asked in order to protect police or others from

the weapon. New York v. Quarles, 467 U.S. 649, 655-56,

104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984). In the instant

13

case, the one question asked of Petitioner, "Where are the

guns?", was precisely a request to know where the guns

were. It was patently not a request to know whether Peti-

tioner had used guns. It was not even a request to know

whether he had possessed guns. (May had already told the

police that he had both possessed and used them.)

Rather, the police had seen Petitioner display great vola-

tility and substantial risk of violence when they informed

him of his arrest. This fact, plus his false missing-person

report, and May’s relation of his threats and his aggressive,

volatile behavior toward her while armed, all made it reason-

able for the officers to view him as capable of irrational,

reckless, and dangerous disposition of the firearms.

The police did not know where the guns were. Peti-

tioner had asked the police to locate May, and could have

brought the guns with him, thinking the police would tell

him where she was. The weapons could have been outside

the police station, unattended, perhaps visible; or in the

possession of a waiting companion; or in some other

publicly-accessible or visible place. They could have been

left somewhere loaded, with their safeties off. They could

have been left at home in circumstances endangering May if

she were to return for more of her possessions.

As Quarles holds, supra, 467 U.S. at 657:

In such a situation, if the police are

required to recite the familiar Miranda

warning before asking the whereabouts of

the gun, suspects in [the defendant’s]

position might well be deterred from

responding.

The officer needed an answer to his question "to insure

that further danger to the public did not result from the

14

a eee

concealment of the gun in a public area." Jd. The test is

whether the evidence shows the officers’ questions were

"reasonably prompted by a concern for public safety." Jd.

(emphasis added). This test is met on this record. And, as

in Quarles, 467 U.S. at 654, there is “no claim that

Petitioner’s statements were actually compelled by police

conduct which overcame his will to resist."

Thus Petitioner’s volunteered response to the police

question was reasonably admitted, despite the absence of a

Miranda warning.’

C. THE TWO LATER ADMISSIONS: NO

INTERROGATION; VOLUNTARINESS

As for the two statements volunteered by Petitioner to

the police in returning to the police station, neither the

slightest questioning, nor soliciting words or acts, preceded

either of them. Under Jnnis, supra, no interrogation was

present, hence Miranda’s advisement of rights was not

required, and the two admissions were properly admitted

into evidence if they were volunteered.

"Voluntary" means "the product of an essentially free

and unconstrained choice by its maker." Schneckloth, supra,

412 U.S. at 225. The question is whether the defendant’s

will was "overborne." Jd. at 226. It is determined on the

totality of the circumstances. Jd.

Thus coercive police activity "is a necessary predicate"

to finding that a self-incriminating statement is not voluntary.

> Again, this is so, even though the Colorado Court of

Appeals did not address the public-safety exception (the State

had asserted it). See Dandridge, supra.

15

Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515,

93 L. Ed. 2d 473 (1986); Schneckloth, supra, 412 U.S. at

227-28. Absence of coercion must be established by the

State by a preponderance of the evidence. Connelly, 479

U.S. at 168; Lego, supra; see Schneckloth, supra.

Determining factors include the age, education, intel-

ligence, experience, and conduct of the defendant, the length

of time involved, and the conduct and statements of the

police. Bradshaw, supra, 462 U.S. 1046; Schneckloth, 412

U.S. at 226. Knowledge of the right to refuse consent may

be a factor, but it is not a requirement. Schneckloth, 412

U.S. at 227, 232-34. Voluntariness is a separate issue from

waiver. Id. 412 U.S. at 235-46.

Here, as the trial court found, Petitioner’s admitted

education, intelligence, experience, and frame of mind all

reasonably support voluntariness, by a preponderance. And

in Connelly’s language, "the record is devoid of any sugges-

tion that the police resorted to physical or psychological

pressure to elicit" the two later admissions. The tone of the

participants was "normal." The Petitioner was "real cooper-

ative." The officers had just let him stop to give water to

his dog.

Petitioner claims that, if the un-Mirandized question

constituted interrogation, it encompassed and coerced the two

later statements. But "interrogation" had ceased after the

asking of the question, and it had not resumed when

Petitioner volunteered his two admissions. Only when

interrogation has resumed before the voluntary self-

incrimination do the Fifth Amendment advisement and

waiver return as requirements. Bradshaw, supra, 462 U.S.

at 1044-45.

16

Moreover, time had passed, the location had changed

from the police station to Petitioner’s home, and the action

had changed from arrest to search and seizure. Thus, the

two later admissions were not responses to the question. Cf.

Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266,

84 L. Ed. 307 (1939) (unlawful search; attenuation dissipates

taint, precluding exclusion of evidence); accord Murray,

supra, 487 U.S. at 537.

Ill. THE RECORD REASONABLY SUPPORTS

THE CONCLUSION THAT THERE WAS

OVERWHELMING EVIDENCE OF

GUILT BEYOND A _ REASONABLE

DOUBT WITHOUT THE ADMISSIONS

AND THE SEARCH-OBSERVATION

TESTIMONY.

Even when an admission is coerced, if there is ample

other evidence without it to support conviction beyond a

reasonable doubt, admitting the coerced admission into

evidence is harmless beyond a reasonable doubt. Arizona v.

Fulminante, 499 U.S. 279, 295, 111 S. Ct. 1246, 113 L.

Ed. 2d 302 (1991); see Chapman v. California, 386 U.S. 18,

24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Likewise,

admission of the fruit of an illegal search is harmless beyond

a reasonable doubt given ample other evidence of guilt

beyond a reasonable doubt. See Fulminante, supra,

Chapman, supra.

Factors to consider include whether the incriminating

statement was a full confession, whether conviction depended

on the jury believing the illegal evidence, whether that

evidence was merely cumulative, and whether its admission

led to admission of other prejudicial evidence. Fulminante,

supra, 499 U.S. at 296-301.

17

Thus, even if, arguendo, the three disputed admissions

here were all coerced, and the search was illegal, the

Colorado Court of Appeals correctly concluded that any

error would have been harmless beyond a reasonable doubt.

As the Statement of the Facts summarizes above, none of the

admissions was a confession; each was an ancillary reference

to one of the many facts of the crime. The police

observation of the guns was likewise ancillary. The

admission of the three statements and the search-observation

testimony into evidence did not lead to admission of any

other evidence; nor were the four disputed items

foundational to other evidence.

And successful prosecution did not depend on whether

the jury believed the four items. Each was cumulative to

May’s testimony about the same facts. (That is: (1) that

Petitioner had guns; (2) that he threatened to kill himself;

and (3) that he must have known May had left him when he

reported her missing.) Despite the lack of corroborating

physical evidence of a physical struggle, despite the absence

of other eyewitnesses, her evidence was overwhelming on its

face in its proof of guilt beyond a reasonable doubt.

The Petition argues to the contrary that May’s credibil-

ity was adversely affected by the omission from the police

report of any mention that Petitioner had fired a gun during

their argument. The argument is incorrect. First, May was

not the one who initiated this case; she did not contact the

police. Thus the omission of the gunshot from the report

reflects on the thoroughness of the police, who reported her

answers. (May testified that she had told the police

everything she told the jury.)

Second, her credibility on the face of the trial transcript

is overwhelming. She testified articulately, consistently, in

detail, and at length about the events of the crime and the

18

surrounding circumstances. Her sincerity and intelligence

were patent. She was compassionate toward the defendant.

And nothing called her credibility into question

specifically as to his possession of the guns, his suicide

threats, or his knowledge (through her note, absent clothes,

and previous expressions of intent) that she had departed.

CONCLUSION

No fair reading of the record could possibly give rise to

a supportable conclusion that the evidence does not reason-

ably support the trial court’s findings and the appellate

court’s conclusions. Thus the Petition for Writ of Certiorari

presents no new legal issue and no cognizable factual issue.

It therefore should be denied.

GALE A. NORTON

Attorney General

STEPHEN K. ERKENBRACK

Chief Deputy Attorney General

TIMOTHY M. TYMKOVICH

Solicitor General

JOHN DANIEL DAILEY

Deputy Attorney General

ROBERT MARK RUSSEL*

First Assistant Attorney General

19

ERIC V. FIELD, 14075

Assistant Attorney General

Criminal Enforcement Section

Attorneys for Respondent

1525 Sherman Street, 5th Floor

Denver, Colorado 80203

Telephone: (303) 866-5785

FAX: (303) 866-3955

*Counsel of Record

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