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Colorado Criminal Law: Why You Should Never Make ANY Statement to The Police During an Investigation – Miranda and Interrogation: A 2010 Update

A recent decision of the Colorado Supreme Court makes clear why – when the police are investigating a case – such as a domestic violence or sexual assault case – the suspect -AT ALL TIMES- during the investigation phase – should refuse to make a any kind of a statement.

The Investigation Phase of a Colorado Domestic Violence Criminal Case.

Here are the facts of the case of Colorado vs Wayne Michael Klinck, decided on May 31, 2011

In this case the prosecution challenged the trial court’s suppression of statements made by the defendant, Wayne Klinck, while being questioned in connection with a domestic violence and sexual assault on Klinck’s girlfriend, D.B.

Initial Investigation – Statements Made During the Investigation on the Porch

Consistent with the classic Colorado Domestic Violence Case – the police responding to a domestic disturbance report, police officers arrived at D.B.’s house and asked Klinck to remain on the porch while the officers interviewed D.B. They actually use the typical “we just want to hear your side of the story” ruse.

Shortly thereafter, an officer spoke with Klinck and, when the officer determined he had probable cause, placed Klinck under arrest.

The Colorado Supreme Court held that Klinck was not in custody for Miranda purposes during his initial interview on the porch and that the lower court made an error in suppressing those statements. Further the Court reasoned that Klinck’s post-arrest interview statements were made voluntarily, and were admissible at trial for impeachment purposes

Here Are THE FACTS – (They Reflect the Classic Investigation Technique Used by Colorado Law Enforcement in Colorado Domestic Violence Cases)

On November 15, 2009, Douglas County Sheriff’s Deputy Hays arrived at the home of the victim, D.B., in response to a domestic disturbance report. En route to the house, he learned from dispatch that D.B. was involved in an altercation with her boyfriend, Klinck, who had just left the house and would return shortly. As Deputy Hays approached D.B.’s house on foot, he observed a truck pull into the driveway of the house and a man exit the vehicle.

Deputy Hays followed the man into the open garage and asked him for identification. After identifying the man as Klinck, Deputy Hays asked what he was doing at the house. Klinck responded he was returning to his girlfriend’s house after getting coffee. Klinck stated that, although he and D.B. had a “spat” the night before, he had no idea why the police were at the house. Deputy Hays asked to follow Klinck into the home. As they entered, he saw D.B. exit the front door and walk towards the back-up patrol car, which had pulled up in front of the house.

Klinck motioned to follow D.B. to the street, but Deputy Hays told Klink to remain on the porch and he would be back to talk with him.

Deputy Hays questioned D.B. in the patrol car for ten to fifteen minutes, during which time he learned that D.B. and Klinck had a fight the night before. D.B. said Klinck had come over to her house late at night, and she had woken up with him on top of her holding her down in bed by her wrists. She said Klinck at one point had put a pillow over her head and pushed her face into the mattress. Deputy Hays observed several red marks on D.B.’s wrists, as well as several red marks on her neck and right shoulder blade.

After speaking with D.B., Deputy Hays returned to the front porch to interview Klinck. The conversation lasted five to ten minutes. Deputy Hays maintained a conversational tone and did not touch Klinck or motion toward his weapon. Klinck reiterated he and D.B. had a “spat” the night before regarding alcohol, but, other than arguing, nothing occurred. Deputy Hays arrested Klinck on the basis of the physical evidence on D.B.’s person, which was consistent with her story.

At the jail, Deputy Hays informed Klinck, based upon D.B.’s statements, that Klinck would be charged with attempted murder, sexual assault, and burglary. Klinck responded that their sex was consensual and D.B was trying to set him up because she thought he was cheating on her. Hays then advised Klinck of his Miranda rights, and Klinck responded, “I want to talk to my lawyer.”

There are more case facts – but for the purposes of this article – the above facts are the most relevant.

The prosecution charged Klinck with criminal attempt –- murder in the first degree;[1] first degree burglary; [2] sexual assault with force; [3] second degree burglary; [4] assault in the third degree; [5] obstruction of telephone service; [6] false imprisonment; [7]and harassment, [8] all as acts of domestic violence.

The Court found that was not in custody for Miranda purposes during his initial interview on the porch.

What Does the Miranda Decision Mean in this Case in Colorado?

To protect a suspect’s Fifth Amendment right against self-incrimination, Miranda prohibits the prosecution from introducing any statement procured by custodial interrogation unless the police precede their questions with certain warnings.

Neither party disputes that the police questioned Klinck on D.B.’s front porch; the only issue is whether or not he was in police custody at the time.

Was Klinck in Custody?

In determining whether a suspect has been subjected to custodial interrogation, the relevant inquiry is “whether a reasonable person in the suspect’s position would believe himself to be deprived of his freedom of action to the degree associated with a formal arrest.”

An officer’s unarticulated plan has no bearing on the question of whether a suspect was in custody at a particular time; the only relevant inquiry is

…. how a reasonable man in the suspect’s position would have understood his situation.

The Court will examine the circumstances surrounding the interrogation and evaluate whether, given those circumstances, a reasonable person would have felt he or she was at liberty to terminate the interrogation and leave.

To determine whether someone is in custody the Court looks at “the totality of the circumstances,” including:

(1) the time, place, and purpose of the encounter

(2) the persons present during the interrogation;

(3) the words spoken by the officer to the defendant;

(4) the officer’s tone of voice and general demeanor;

(5) the length and mood of the interrogation;

(6) whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation;

(7) the officer’s response to any questions asked by the defendant;

(8) whether directions were given to the defendant during the interrogation;

and

(9) the defendant’s verbal or nonverbal response to such directions.

No single factor is determinative.

The Officer’s Intention is NOT the Basis for the Judge’s Decision

The subjective intent of the police is NOT taken into account when determining whether Klinck’s statements on the porch at D.B.’s house were subject to Miranda.

The Court ONLY focus’s is on ….

whether a suspect is in custody for purposes of Miranda is subject to an objective reasonable person standard. … whether a reasonable person in Klinck’s position would have felt deprived of freedom to the degree associated with a formal arrest.

In this case, the Colorado Supreme Court held that the time, place, and purpose of the encounter does not support a finding of custody.

Klinck was in a familiar location, his girlfriend’s home, and the encounter lasted less than ten minutes. Deputy Hays used a conversational tone when speaking with Klinck, and asked non-confrontational, open-ended questions.

As the Supreme Court acknowledged in Oregon v. Mathiason, 429 U.S. 492, 495 (1977), any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. However, the consensual interview between Klinck and Deputy Hays did not exert the compulsive forces that Miranda sought to prevent. Thus, the trial court erred in finding that Klinck was in custody on the porch at D.B.’s house for Miranda purposes before the police formally placed him under arrest.

The Second Test – the Voluntariness of the Suspect’s Statements

Under the due process clauses of the United States and Colorado Constitutions, a defendant’s statements must be made voluntarily in order to be admissible into evidence. U.S. Const. amends. V, XIV; Colo. Const. art. II, § 25.

Statements made by a defendant that violate the parameters of Miranda are subject to suppression, but so long as the defendant made those statements voluntarily, the prosecution may use them for impeachment purposes.

To be voluntary, a statement must be the product of an essentially free and unconstrained choice by its maker.

Coercive government conduct, physical or mental, is necessary to find that a confession is not voluntary.

For a confession to be involuntary, coercive governmental conduct must play a significant role in inducing the statement

The inquiry’s focus is on whether the behavior of the state’s law enforcement officials was such as to overbear the defendant’s will to resist and bring about a confession not freely self-determined.

Whether a statement is voluntary must be evaluated on the basis of the totality of the circumstances under which it is given.

Factors helpful to the voluntariness determination include, but are not limited to:

whether the defendant was in custody or was free to leave and was aware of his situation;

whether Miranda warnings were given prior to any interrogation and whether the defendant understood and waived his Miranda rights;

whether the defendant had the opportunity to confer with counsel or anyone else prior to the interrogation;

whether the challenged statement was made during the course of an interrogation or instead was volunteered;

whether any overt or implied threat or promise was directed to the defendant;

the method and style employed by the interrogator in questioning the defendant and the length and place of the interrogation;

and the defendant’s mental and physical condition immediately prior to and during the interrogation,

as well as his educational background, employment status, and prior experience with law enforcement and the criminal justice system.