# Opposition Brief — Maruca v. Colorado

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1605%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 914

## Text

4
99-206 !

No.

a
]
.

.
; ,
_ FF oe © F~ |

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

20

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1605%3A2. Public record. Not legal advice.