fall conference... · web viewmr. martinez, through counsel, moves the honorable court to dismiss...

EXAMPLES OF MOTIONSAND RESPONSES

1. Destruction of Exculpatory EvidenceDefense Motion …………………………………………..2Prosecution Response …………………………………..9

2. Suppression of Statements of Juvenile DefendantDefense Motion …………………………………………. 15Prosecution Response ………………………………….28

3. Prosecution Response “Motion to Compel Prosecution to Provide the Defense with the Oral Statements of Witnesses” …………………………………………………….. 37

4. Prosecution Response “Change of Venue” …………….41

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DISTRICT Court, CONEJOS County, Colorado

Court Address: P. O. Box 128, Conejos, CO 81129

COURT USE ONLY

THE PEOPLE OF THE STATE OF COLORADO,Plaintiffv.

TYRONE MARTINEZ,Defendant

Douglas K. Wilson, Colorado State Public DefenderDaniel F. Zettler, #32388David M. Lipka, #37778Deputy Public DefenderAlamosa Regional Public Defenders610 Main St., Alamosa, CO 81101Phone: (719) 589-9615 Fax: (719) 589-6178E-mail: [email protected]

Case No. 2010 CR 53

Division

MOTION TO DISMISS OR IN THE ALTERNATIVE IMPOSE SANCTIONS FOR DESTRUCTION OF EVIDENCE AND IMPEDING

INVESTIGATION (D-30)

Mr. Martinez, through counsel, moves the Honorable Court to dismiss all charges or in the alternative impose sanctions for the destruction of evidence and for impeding counsel’s investigation in violation of Mr. Martinez’s Due Process rights under the Federal Constitution, as well as his Due Process rights under the Colorado State Constitution and his statutory rights under C.R.Cr.P. 16. He presents the following arguments in support of this motion:

BACKGROUUND

1. Mr. Martinez is charged with Murder in the First Degree, After Deliberation (F1) and Murder in the First Degree, Felony Murder (F1), in addition he is charged with numerous other lesser criminal law violations.

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2. The prosecution alleges he shot the alleged victim, Norma Salazar, three times through an open window while standing outside her apartment.

3. On August 6, 2010, the Colorado Bureau of Investigation (CBI) conducted an investigation of the alleged crime scene at 302 Main Street, La Jara, Colorado. During this investigation, despite extensive efforts, they were unable to locate one of the projectiles that they believed passed through Norma Salazar causing her death. This projectile was the projectile whose path was relied on for CBI trajectory analysis.

4. On August 9, 2010, Mr. Martinez, through counsel, filed a Motion for Preservation and Production of Physical Evidence (D-4).

5. D-4 specifically requested that the Court order the Prosecution to preserve and provide him with access to any and all physical evidence.

6. On or about August 10, 2010 the prosecution filed a written response objecting to Mr. Martinez’s D-4.

7. The prosecution’s motion specifically acknowledged the constitutional and statutory obligation of the prosecution and “any others who have participated in the investigation… of the case” to preserve, disclose and not purposefully or in bad faith destroy any evidence:

a. “The People are required to act reasonably and not in bad faith in the preservation of constitutionally material evidence.” See People’s Response to Defendant’s “Motion For Preservation and Production of Physical Evidence (D-4),” (hereinafter People’s Response), introductory paragraph.

b. “The state is required to employ regular practices to preserve evidence when it is reasonably foreseeable that the evidence might be favorable to the accused.” See People’s Response at paragraph 4.

c. “The People are required to not purposefully or in bad faith destroy any Brady material.” See People’s Response at paragraph 5.

d. “Crim.P.16(I)(a)(2) requires the disclosure of ‘any material or information within (the prosecuting attorney’s) possession or control which tends to negate the guilt of the accused as to the offense charged.” See People’s Response at paragraph 13.

e. “Crim.P.16(I)(c)(sic) addresses materials held by other government personnel, other than the prosecution. The rule requires that the prosecution make ‘diligent good faith efforts to cause such material’

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to be made available to the defense.” See People’s Response at paragraph 14.

8. On September 8, 2010, the Honorable Judge Mary Elizabeth Garcia granted Mr. Martinez’s Motion to Preserve (D-4).

9. On August 20, 2010, La Jara Police Chief Daniel Martinez, Deputy Howard Galvez of the Conejos County Sheriff’s Office, Deputy District Attorney McIntyre, Public Defender Investigatory Dale Salazar, Public Defender Daniel Zettler and Public Defender David Lipka where all present at 302 Main Street La Jara, Colorado so that the defense team could conduct initial investigations at the scene of the alleged crime.

10. Based on good faith belief, during the time all parties were present, Deputy Galvez located a flattened copper lined projectile on an outside stair rung leading up to the window outside Norma Salazar’s apartment.

11. Deputy Galvez showed the projectile to Deputy District Attorney McIntyre and La Jara Police Chief Daniel Martinez while intentionally keeping the discovery hidden from the defense team.

12. In contrast to standard practice concerning the handling of physical evidence, La Jara Police Chief Daniel Martinez picked the projectile up with his bare hands and placed it in the pocket of his trousers. Prior to handling and collecting the evidence he did not obtain gloves, an evidence collection bag or otherwise document the projectiles location or condition.

13. After collecting the evidence, La Jara Police Chief Daniel Martinez apparently forgot about the projectile and lost it.

14. Mr. Martinez has filed a motion requesting all projectiles be provided for independent forensic testing.

THE LAW

15. The prosecution's suppression of material evidence, which is favorable to an accused and relates to either guilt or punishment, violates due process of law. Brady v. Maryland, 373 U.S. 83 (1963); People v. Greathouse, 742 P.2d 334 (Colo. 1987); People v. Sheppard, 701 P.2d 49 (Colo. 1985). “[W]hen evidence can be collected and preserved in the performance of routine procedures by state agents, the failure to do so is tantamount to suppression of the evidence." Greathouse, 742 P.2d at 337; Gallagher v. District Court, 656 P.2d 1287 (Colo. 1983). The state is

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required to employ regular procedures to preserve evidence when it is reasonably foreseeable that such evidence might be favorable to the accused. Id..

16. It is well established that after a request is made by an accused, the prosecution's suppression of material evidence which is favorable to an accused and relates to either guilt or punishment, violates due process of law. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Accord, e.g., United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); People v. Sheppard, 701 P.2d 49 (Colo.1985); People ex rel. Gallagher v. District Court, 656 P.2d 1287 (Colo.1983); Garcia v. District Court, 197 Colo. 38, 589 P.2d 924 (1979). In considering whether the prosecution's acts amount to a suppression of evidence, we have held that “when evidence can be collected and preserved in the performance of routine procedures by state agents, the failure to do so is tantamount to suppression of the evidence.” Gallagher, 656 P.2d at 1291. The state is required to employ regular procedures to preserve evidence when it is reasonably foreseeable that such evidence might be favorable to the accused. Id.; People v. Gomez, 198 Colo. 105, 596 P.2d 1192 (1979). We have recognized that “when the police conduct scientific tests, they must preserve samples to permit the defendant to accomplish independent testing, permit the defendant's experts to monitor the police testing, or provide some other suitable means to allow the defendant to verify independently the appropriateness of the procedures and the accuracy of the results of the testing.” Gallagher, 656 P.2d at 1292. Our prior cases have involved “a failure to preserve evidence after arrests had been made and the facts had stabilized.” People v. Pope, 724 P.2d 1323, 1326 (Colo.1986) (emphasis added). In the case at bar, the state's failure to preserve evidence must be considered in the context of the ongoing investigation before the facts had stabilized.

17. To show a due process violation Mr. Martinez must show 1) the evidence was lost or destroyed by state action; 2) the evidence possessed an exculpatory value that was apparent before the evidence was destroyed; 3) the evidence is of such a nature that Mr. Martinez will be unable to obtain comparable evidence by other reasonably available means. See California v. Trombetta, 467 U.S. 479, 488 (1984); People v. Greathouse, 742 P.2d 334 (Colo. 1987); People v. Sheppard, 701 P.2d 49 (Colo. 1985).

18. Colorado Rule of Crim.P.16(I)(a)(1)(IV) requires the prosecution to “make available” any “tangible object held as evidence in connection with the case”.

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19. Colorado Rule Crim.P.16(I)(a)(2) requires the disclosure of any material or information within (the prosecuting attorney’s) possession or control which tends to negate the guilt of the accused as to the offense charged.

20. Colorado Rule Crim.P.16 (III)(a) notes in relevant part that “the prosecuting attorney…nor other prosecution or defense personnel shall…refrain from... showing any relevant material to any party, counsel or their agent, nor shall otherwise impede counsel’s investigation of the case.”

21. Relevant material is defined as material that tends to prove or disprove any fact of consequence to the defendant’s guilt or innocence. See People v. Gallegos, 644 P.2d 920 (Colo. 1982); see also CRE 401.

22. The state has a constitutional duty to preserve evidence that is constitutionally material. See People v. Wyman, 788 P.2d 1278 (Colo. 1990); see also Arizona v. Youngblood, 488 U.S. 51 (1988)

23. The goal of preservation is to eliminate the catch 22 inherent in trying to argue why a piece of evidence was constitutionally material. See California v. Trombetta, 467 U.S. 479, 488 (1984).

24. "The trial court has broad discretion in fashioning an appropriate remedy to protect a defendant's rights where a due process violation has denied him access to evidence.” People v. District Court, 656 P.2d 1287, 1293 (Colo. 1983); People v. District Court, 808 P.2d 831 (Colo. 1991). "The imposition of sanctions serves the dual purposes of protecting the integrity of the truth-finding process and deterring the prosecutor and the police from [misconduct]." People v. District Court, 656 P.2d at 1293. In serving the purpose of protecting the truth-finding process, the sanction should be "no more restrictive than necessary to protect the defendant's right to due process." Id.. The exercise of discretion in fashioning a sanction "should take into account the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances." People v. District Court, 808 P.2d 831 (Colo. 1991). In fashioning a sanction to achieve the goal of eliminating the due process violation, a court must strive to restore as nearly as possible the level playing field that existed before the discovery violation. Id.

25. Colorado Rule of Crim.P.16 (III)(g) grants this court broad authority in determining appropriate sanctions for failure to comply with the rule. See People v. District Court, 665 P.2d 247 (Colo. 1983); see also People v.

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Reger, 731 P.2d 752 (Colo. App. 1986); see also People v. Patterson, 541 P.2d 894 (1975).

ARGUMENT

26. The defense made a request via D-4 for the preservation of all physical evidence, which includes projectiles.

27. The prosecution acknowledged the motion and their obligation to preserve such evidence in their response to D-4.

28. Despite defense motion D-4 and the prosecution’s acknowledgment of their constitutional and statutory obligations, the destruction of the projectile occurred in the presence of the District Attorney, and in a manner which strongly suggests an attempt to impede defense investigation, possibly bad faith, and clearly gross negligence.

29. The evidence was destroyed due to Chief Martinez’s failure to follow standard and well established procedures for the preservation of physical evidence. These actions were witnessed and implicitly approved by the District Attorney.

30. The projectile was clearly material, relevant and exculpatory. Forensic testing of the bullet would have allowed the defense to develop cross-examination of prosecution experts, alternate suspect information regarding what weapon fired the projectile, where and if the projectile passed through Mrs. Salazar’s body, and show the projectile was most likely fired from outside the residence.

31. Mr. Martinez is unable to obtain comparable evidence through other reasonable means. No other projectile recovered from the scene left two impact points, making it the only projectile from which viable trajectory analysis can occur. In addition, no other projectile would have the same trace evidence and damage evident, disallowing this analysis entirely.

32. The destruction and failure to preserve the projectile constitutes both a violation of Mr. Martinez’s Due Process rights under the United States and Colorado Constitutions and his statutory rights under Colorado Rule of Crim.P.16.

33. Dismissal is the appropriate sanction in this case as Mr. Martinez’s statutory rights, rights under the Fifth, Sixth, and Fourteenth Amendment rights under the Federal Constitution, as well as his rights under Article II, Sections 7, 16, 18, and 25 of the State Constitution, have

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been violated. Brady v. Maryland, 373 U.S. 83 (1963); People v. Greathouse, 742 P.2d 334 (Colo. 1987); People v. Shepherd, 701 P.2d 49 (1985). No less restrictive sanctions would protect Mr. Martinez’s due process rights.

34. If the Court feels dismissal is too harsh a remedy, Mr. Martinez asks for appropriate sanctions which will protect his constitutional rights and statutory rights, including, but not limited to, a reduction in charges and the state being precluded from mentioning, arguing or presenting evidence regarding where Mr. Martinez was allegedly standing when the projectiles were fired. See People v. District Court, 656 P.2d 1287 (Colo. 1983).

___________________________________Daniel F. Zettler, #32388Deputy State Public Defender

Dated: March 21, 2011.

Certificate of ServiceI hereby certify that on 03/24/2011, I served the foregoing document by delivering X_ mailing ___ faxing ___ same to all opposing counsel of record.

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DISTRICT COURTCONEJOS COUNTYSTATE OF COLORADO6683 County Road 13, P.O. Box 128Conejos, Colorado 81129

THE PEOPLE OF THE STATE OF COLORADO,Plaintiff,

vs.

TYRONE MARTINEZ,Defendant

▲Court Use Only ▲

DAVID MAHONEE, DISTRICT ATTORNEYDaniel W. Edwards, Special Deputy D.A., 7938Attorney General’s Office1525 Sherman Street, 7th FloorDenver, Colorado 80203Phone: 303-866-5760Fax: 303-866-5671

Daniel McIntyre, Deputy District Attorney, 40084Mark Franklin, Deputy District Attorney, 39087426 San Juan AveAlamosa, Colorado 81101Phone: 719-589-3691Fax: 719-589-2734

CASE NUMBER:

10CR53

PEOPLE’S RESPONSE TO DEFENDANT’S “MOTION TO DISMISS OR IN THE ALTERNATIVE IMPOSE SANCTIONS FOR DESTRUCTION OF EVIDENCE AND IMPEDING INVESTIGATION D-30”

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COMES NOW, DAVID MAHONEE, District Attorney for the 12th Judicial District, by and through his duly appointed deputies, and respectfully files this “People’s Response To Defendant’s “Motion To Dismiss Or In The Alternative Impose Sanctions For Destruction Of Evidence And Impeding Investigation D-30” To establish a due process violation for the failure to preserve exculpatory evidence, the defendant must prove (1) the evidence was destroyed by state action; (2) the evidence possessed an exculpatory value that was apparent before it was destroyed; (3) the defendant was unable to obtain comparable evidence by other reasonably available means; (4) if the evidence was not apparently exculpatory when it was destroyed and was merely potentially useful, the defendant must show that the state agent acted in bad faith; and (5) speculative assertions regarding the exculpatory effect had the evidence been available for testing are not sufficient to show that the loss of the evidence constitutes a due process violation. California v. Trombetta, 467 U.S. 479, 488-89, (1984); Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988); People v. Wartena, 156 P.3d 469 (Colo. 2007); People v. Braunthal, 31 P.3d 167, 173 (Colo.2001); People v. Wyman, 788 P.2d 1278, 1279 (Colo.1990); People v. Daley, 97 P.3d 295, 299 (Colo.App. 2004); People v. Scarlett, 985 P.2d 36, 39 (Colo.App. 1998). Applying these well recognized legal principles to the defendant’s motion, even when the motion is construed in the best light for the defendant, the motion is insufficient for a hearing let alone sanctions.

THE CORRECT LEGAL FRAMEWORK FOR DETERMININGALLEGATIONS OF DESTRUCTION OF EXCULPATORY EVIDENCE

1. To establish a due process violation for the failure to preserve exculpatory evidence, the defendant must show three things: (1) the evidence was destroyed by state action; (2) the evidence possessed an exculpatory value that was apparent before it was destroyed; and (3) the defendant was unable to obtain comparable evidence by other reasonably available means. California v. Trombetta, 467 U.S. 479, 488-89, (1984); Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988); People v. Wartena, 156 P.3d 469 (Colo. 2007); People v. Braunthal, 31 P.3d 167, 173 (Colo.2001) and cited by the defendant in paragraph 17 of D-30. If the evidence was not apparently exculpatory when it was destroyed and was merely potentially useful, the defendant must show that the state agents acted in bad faith. Arizona v. Youngblood, 488

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U.S. 51, 58 (1988); People v. Wyman, 788 P.2d 1278, 1279 (Colo.1990) and not cited by the defendant in D-30. “The mere possibility that testing might lead to exculpatory evidence does not support a dismissal of the charges. Speculative assertions regarding the exculpatory effect had the evidence been available for testing are not sufficient to show that loss of the evidence constitutes a violation of due process.” People v. Daley, 97 P.3d 295, 299 (Colo.App. 2004) citing People v. Scarlett, 985 P.2d 36, 39 (Colo.App. 1998).

2. Examples demonstrate how the due process destruction of exculpatory evidence doctrine is applied.

a. In People v. Abdu, 215 P.3d 1265 (Colo.App. 2009) a videotape recording of the incident was automatically recorded over pursuant to the jail’s video recording system. The Supreme Court has held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988). The Colorado Supreme Court first adopted the Youngblood standard in People v. Wyman, 788 P.2d 1278 (Colo. 1990).

b. In People v. Bachofer, 192 P.3d 454 (Colo.App. 2008), the Court rejected defendant’s assertion of destruction of exculpatory evidence. The court assumed that significant information was lost and that the missing information might have been favorable to the accused as impeachment material and yet refused to grant relief because the defendant did not show bad faith nor that the evidence had exculpatory value that was apparent when the evidence was removed. 192 P.3d 454 at 459.

c. In People v. Victorian, 165 P.3d 890 (Colo.App. 2007) the prosecution destroyed videotaped interviews with the child victims of sexual assaults. The Court assumed, without deciding, that the videotapes were apparently exculpatory. The Court held that the due process claim was not sustainable because the defendant failed to prove the tapes had apparent exculpatory value when destroyed and the defendant did not establish that the state actor acted in bad faith.

d. In People v. Daley, 97 P.3d 295 (Colo.App. 2004) the defendant was charged with the death of a pedestrian allegedly

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hit by defendant’s car. Pieces of the vehicle were left at the scene including items that matched the bumper of defendant’s car. White paint was found on the victim’s jacket and pants that were likely the result of the collision. The defense sought to obtain the clothing to determine if the paint transfers matched the defendant’s car. The prosecution and Colorado State Patrol were unable to locate the clothing after the request was made. A week before trial, prosecutors found the clothing in CSP’s evidence room. The Court rejected requests for dismissal or exclusion of the evidence holding that “the mere possibility that testing might lead to exculpatory evidence does not support” those sanctions. 97 P.3d at 299. The Court held that there was no showing of a due process violation or a need for deterrence and that, therefore, no punitive sanctions were appropriate. Id.

e. In People v. Simpson, 93 P.3d 551 (Colo.App. 2003) the defendant sought dismissal or other sanctions for alleged destruction of exculpatory evidence. The defendant cited three issues: (1) failure to conduct gunshot residue testing on certain items; (2) record the measurements and pictures the exact location of bullet holes, and (3) conduct testing that would have provided the bullets trajectories. The Court of Appeals rejected all three of these allegations. The Court reiterated that “failure to preserve useful evidence does not constitute a due process violation absent a showing of bad faith on the part of the police.” 93 P.3d at 557. Further “because the defendant failed to establish either that the police acted in bad faith in failing to preserve evidence or that the evidence had apparent exculpatory value before it was destroyed” the trial court did not err in refusing to impose sanctions. Id.

3. In People v. Greathouse, 742 P.2d 334 (Colo.1987), the Colorado Supreme Court adopted the standard for determining the value of exculpatory evidence in a due process claim that was articulated by the United States Supreme Court in California v. Trombetta, 467 U.S. 479 (1984). The constitutional duty imposed upon the state to preserve evidence is limited to that evidence that is “constitutionally material.” 467 U.S. at 488 . For evidence to be constitutionally material, the evidence (1) must have an exculpatory value that was apparent before the evidence was lost or destroyed; and (2) the defendant must be unable to obtain comparable evidence through other available means. Id. at 489, 104 S.Ct. at 2534. The Colorado

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Supreme Court has “expressly declined to find a broader protection in the state constitution” than that provided federally by Youngblood. People v. Wartena, 156 P.3d 469, 475 (Colo. 2007). The defendant must show it had apparent exculpatory value when it was destroyed and he must show bad faith in order to establish a due process violation. In Abdu, the Court of Appeals found that there was no bad faith because the recording occurred automatically and not through any deliberate decision to deprive the defendant of evidence.

4. The Youngblood standard controls in the Colorado courts after the decision was reached in 1988. Pre-Youngblood cases must be carefully examined to determine whether the holding has been overruled by Youngblood. For example, in Abdu the defendant argued that where the defendant argued that grossly negligent conduct was sufficient citing People v. Harmes, 38 Colo.App. 378, 560 P.2d 470 (1976). The Court of Appeals held that Harmes’ holding of negligent destruction “cannot survive Youngblood.” 215 P.3d at 1270. The defendant cites to People ex rel Gallagher v. District Court, 656 P.2d 1287 (Colo. 1983) a pre-Youngblood case. The quotation the defendant utilizes in paragraph 16 has been superseded by Youngblood as adopted by the Colorado appellate courts.

APPLICATION IN THIS CASE

5. On good faith and belief the facts as stated by the defendant in his motion are generally correct. However, the application and relief requested is inappropriate. The bullet in question was not found in the apartment, the crime scene itself, but rather outside of the crime scene. The defendant has the burden of going forward and demonstrating to this Court a constitutional violation. The defendant is unable to meet his burden.

a. The defendant is unable to prove that the particular bullet related to this crime at all and thus the defendant cannot prove the evidence had any relevance to this case.

b. However, assuming that the bullet related to the crimes charged, the defendant cannot prove that it “possessed an exculpatory value that was apparent before the evidence was destroyed.”

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c. Assuming relevance and exculpatory value, the defendant cannot prove bad faith on the part of the state actors, even under the facts stated by the defendant

6. The best the defense is able to muster in their motion is that the evidence was lost or destroyed “in a manner which strongly suggests an attempt to impede defense investigation, possibly bad faith, and clearly gross negligence.” D-30 paragraph 28 (emphasis added). Based upon the authorities cited above “possibly bad faith and clearly gross negligence” are insufficient for any sanction to be imposed. Even the allegations are insufficient to support a hearing or a finding in favor of the defendant’s motion.

For the above reasons, even assuming every factual allegation in the defendant’s motion is correct, the People respectfully request that the motion be denied and be denied without a hearing.

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DISTRICT Court, RIO GRANDE County, Colorado

Court Address: 925 Sixth Street, Del Norte, CO 81132

COURT USE ONLY

THE PEOPLE OF THE STATE OF COLORADO,Plaintiffv.

JOHN MICHEL CAUDLE,Defendant

Douglas K. Wilson, Colorado State Public DefenderAmanda C. Hopkins #38677Deputy Public DefenderAlamosa Regional Public Defenders420 San Juan Avenue, Alamosa, CO 81101Phone: (719) 589-9615 Fax: (719) 589-6178E-mail: [email protected]

Case No. 2009CR239

Division

MOTION TO SUPPRESS STATEMENTS OF A CHILD OBTAINED WITHOUT THE PRESENCE OF A “RESPONSIBLE ADULT” IN VIOLATION OF THE UNITED STATES CONSTITUTION, THE

COLORADO CONSTITUTION, THE COLORADO CHILDREN’S CODE, AND MIRANDA V. ARIZONA [D-37]

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COMES NOW John Caudle, a child charged as an adult, by and through his counsel of record, and moves this Court for an Order suppressing all statements made by John Caudle when he was interviewed in a small room at two o’clock in the morning by an agent from the Colorado Bureau of Investigations and a Park County Sheriff’s Deputy in violation of the Fifth Amendment to the United States Constitution, Article II, Section 16 of the Colorado Constitution, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and C.R.S. § 19-2-511(1). As grounds, John Caudle states the following:

I. THE LEGAL CONTEXT FOR THIS MOTION

1. The Colorado Children’s Code requires that a “parent, guardian, or legal or physical custodian” of a child be present at custodial interrogation if the government wants to introduce statements from the interrogation at trial. C.R.S. § 19-2-511(1).

2. Additionally, any custodial interrogation must be preceded by a voluntary, knowing and intelligent waiver of the suspect’s constitutional rights in order for statements from the interrogation to be admissible. See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966).

3. Moreover, the Due Process Clause of the Colorado and United States Constitutions prohibit the government from using any statements that are involuntary. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 25; Mincey v. Arizona, 437 U.S. 385, 397 (1978); Effland v. People, ___ P.3d ___, ___, case no. 09SC70, slip op. at 21 (Colo., September 20, 2010).

II. JOHN CAUDLE’S ARREST AND THE 41.1 ORDER.

4. A Park County Sheriff’s deputy detained John Caudle (hereinafter “John”), who was just 14 years old, for erratic driving at 3:35 p.m. on October 27, 2009. He sat in an interior office in Fairplay, watched constantly by police officers, for the next ten hours until the police took him to another building to be interrogated.

5. As John sat in custody, Joe Homlar, who works for the Park County Department of Human Services, began an investigation at the request of the Park County Sheriff’s Office. Mr. Homlar contacted Rio Grande County Social Services and asked that the on-call worker be paged.

6. Mr. Homlar was then contacted by Park County Deputy John Burke who informed Mr. Homlar that placement with DHS would no longer

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be necessary because the child’s best interest were going “up the chain of command.” Mr. Homlar continued to follow up.

7. Mr. Homlar then spoke to Rio Grande County Undersheriff Charles Chick who told Mr. Homlar that they were “aware of the situation” with John Caudle and Rio Grande Department of Social Services would follow up as necessary.

8. Shortly after speaking with Undersheriff Chick, Colorado Bureau of Investigations Agent Jeff Schierkolk called Mr. Homlar to see if someone from Park County DHS could act as a guardian for John or what would need to be done to appoint a guardian ad litem for him.

9. After talking with Mr. Homlar, Agent Schierkolk decided getting John a guardian ad litem would be an inconvenience and “was not a timely process that could be done that evening.” He did not pursue this option. Mr. Homlar also told Agent Schierkolk that Park County DHS was no longer involved and Rio Grande County needed to be contacted regarding providing a guardian. It appears that Agent Schierkolk also did not pursue this option.

10. Agent Schierkolk did, however, contact a deputy district attorney and a district court judge, who signed an order for non-testimonial evidence pursuant to Crim.P. 41.1 at 11:39 that evening.

11. At 9:20 p.m., Agent Schierkolk came to Fairplay with the 41.1 Order. They made John strip naked and they took pictures of him. They took pictures of all of his scars and the marks on his body. They took all of his clothes, his belt, and his watch. They fingerprinted him and scraped under his fingernails. They took buccal swabs. They made him give a urine sample and they took two vials of blood.

12. No one was there for John when this took place and he was not told why the samples were taken.

III. FINDING VERLA MILLER

13. Law enforcement wanted to interrogate John and they felt they could not wait until the following day; however, they were having a difficult time finding a relative, any relative, to give them permission. After several hours, they tracked down Verla Miller, John’s maternal grandmother, who was living in Salida.

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14. Two police officers and a woman who worked as a victim advocate with the Chaffee County Sheriff’s Department knocked on Ms. Miller’s door a little after midnight on October 28, 2009. They woke her up to tell her that her daughter and son-in-law had been killed. They handed her a phone and Agent Schierkolk first, gave his condolences on the death of her daughter, then, instructed her to go to Fairplay so that she could give him permission to interrogate her grandson about the killings.

15. Less than 30 minutes after the knock on her door, Ms. Miller was in a police car, driving to Fairplay. During the hour-long drive, Ms. Miller could not bare to ask about the details of what was happening. Eventually, Ms. Miller broke down and the only sound left in the car was the sound of her crying.

IV. HOW THE POLICE “PREPARED” MS. MILLER, BEFORE SHE HELPED THEM INTERROGATE THE BOY SUSPECTED OF

MURDERING HER DAUGHTER

16. Ms. Miller got to Fairplay just before 2:00 a.m. Agent Schierkolk questioned her about John and his relationship with his mother and stepfather. According to his report, Agent Schierkolk told her details of the killings. His reasoning was that this would “prepare her for what she might hear in the interview.”

17. Agent Scheirkolk told Ms. Miller that he was not sure if John actually needed an attorney, but that he did need someone to act as his guardian.

18. Ms. Miller and John were taken, in separate police cars, to an old building no longer in use by the Park County Sheriff’s Office. John was shackled at his waist. The handcuffs left marks on his wrist.

19. Ms. Miller was given no instructions on what her role in the interrogation process would be. No one ever gave Ms. Miller the chance to talk to John privately about his legal options. Instead, the police showed both Ms. Miller and John a written Miranda form. Ms. Miller signed it, believing she was signing to say that she was his grandmother and would be sitting in on the interview.

V. THE TWO-HOUR INTERROGATION OF A FOURTEEN-YEAR-OLD, SLEEP-DEPRIVED, HUNGRY CHILD IN THE EARLY HOURS OF THE

MORNING

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20. John was placed in a seat in the corner of the small, cold room opposite the only door. Ms. Miller sat in a chair in the corner opposite of John.

21. Agent Shierkolk sat in a chair directly in front of the door.

22. Detective Amy Franck of the Park County Sheriff’s Office, who spent the majority of the evening silently watching John and recording his activities, was also in the interrogation room. She spent the majority of the interview with her chair directly in front of John, eventually ending up kneeling on the floor in front of John.

23. The interrogation began at 2:17 in the morning. John had been awake since the morning of October 26. He had eaten some candy and had some coffee and pop to drink during that time. He was hungry and very sleep-deprived. He was 14 years old and had just begun the ninth grade. He was five feet seven inches (5’7”) tall and weighed ninety-eight (98) pounds.

24. For almost 90 minutes, the police questioned John about his relationship with his mother and stepfather and the events of October 26th

and 27th. Detective Franck repeatedly touched John’s knee and leg, without his consent. Verla Miller sat silently in her chair, stunned into silence over the loss of her daughter. She never offered John any help or advice.

25. Frustrated by John’s continued denials, the police falsely asserted their belief that John’s best friend, Alex, was responsible for the killings. At 3:35 in the morning, John began answering the police’s questions about the killings. Verla Miller began to weep as she heard the details.

26. It is clear that John was in custody at all times during this interrogation. See Effland, supra; People v. Gennings, 808 P.2d 839, 845 (Colo. 1991).

VI. THE INTERROGATION CONTINUED SURREPTITIOUSLY AFTER THE POLICE’S FALSE REPRESENTATION THAT THE

INTERROGATION HAD ENDED

27. At 4:16 in the morning, Agent Schierkolk and Detective Franck told John and Verla Miller that the interrogation was over. They left the room and John’s grandmother was left alone with the child who had just confessed to killing her daughter.

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28. What the police did not tell John or Ms. Miller was that they were still tape-recording and monitoring everything the two of them said, including the discussions Ms. Miller had on the telephone with other people about the killings.

VII. VERLA MILLER WAS NEITHER JOHN’S GUARDIAN, NOR HIS LEGAL OR PHYSICAL CUSTODIAN, NOR HAD SHE ASSUMED THE

ROLE OF HIS PARENT. INSTEAD, AS THE MOTHER OF THE WOMAN HE HAD ALLEGEDLY MURDERED, HER INTERESTS WERE

OBJECTIVELY HOSTILE TO HIS, WHICH MADE HER INCOMPETENT TO ASSIST HIM IN WAIVING HIS RIGHTS UNDER C.R.S. SECTION

19-2-511.

29. C.R.S. § 19-2-511(1) provides:

“No statements or admissions of a juvenile made as a result of a custodial interrogation of such juvenile by a law enforcement official concerning delinquent acts alleged to have been committed by the juvenile shall be admissible in evidence against such juvenile unless a parent, guardian, or legal or physical custodian of the juvenile was present at such interrogation and the juvenile and his or her parent, guardian, or legal or physical custodian were advised of the juvenile’s right to remain silent and that any statements made may be used against him or her in a court of law, of his or her right to the presence of an attorney during such an interrogation, and of his or her right to have counsel appointed if he or she so requests at the time of the interrogation[.]”

30. C.R.S. 19-2-511(3) provides:

Notwithstanding the provisions of subsection (1) of this section, statements or admissions of a juvenile shall not be inadmissible in evidence by reason of the absence of a parent, guardian, or legal custodian if the juvenile was accompanied by a responsible adult who was a custodian of the juvenile or assuming the role of a parent at the time.

31. The legislative purpose behind these two provisions is to extend Miranda’s protections to juveniles and to provide an “additional and

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necessary assurance that the juvenile’s Fifth Amendment right against self incrimination . . . will be fully afforded to him.” People v. Legler, 969 P.2d 691, 694 (Colo. 1998); see also, In re Gault, 387 U.S. 1 (1967); Miranda, supra.

32. This section of the Colorado Children’s Code provides protections above and beyond those afforded by the Fifth Amendment to juveniles in the context of custodial interrogation. People v. Blankenship, 119 P.3d 552 (Colo. App. 2005).

33. In Legler, a child accused of murder had her grandmother present at the interrogation. The trial court suppressed the ensuing confession and the Colorado Supreme Court affirmed.

34. It is undisputed that Verla Miller was neither John’s parent, guardian, nor legal or physical custodian. She had no responsibility for his care at all.

35. As in this case, in Legler the Court first determined that the grandmother was not a physical custodian or guardian of the child, because the child had not resided with her grandmother immediately prior to the interrogation. Legler, supra. The same is true with respect to Verla Miller and John. Ms. Miller was also not a legal custodian, nor was she assuming the role of a parent because she had not provided food, clothing, shelter or other care for John. Cf. C.R.S. 19-1-103(35); see also, Legler, supra at 697.

36. The mere fact that a child has resided with an adult at some point in the past does not guarantee the kind of protective relationship contemplated by the Children’s Code. Legler, supra.

37. An adult whose interests are hostile to a child’s interests is legally not competent to assist a child in deciding whether to waive his Miranda rights:

[I]t is implicit in the legislative purpose of section 19-2-511(1) that a child involved in the commission of an offense should be afforded protective counseling concerning his or her legal rights from one whose interests are not adverse to those of the child, to the end that any statement made by the child be given voluntarily, knowingly and intelligently.

Legler, supra at 694.

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38. As in this case, the Legler Court found that because the grandmother’s interests were “objectively hostile” to those of the juvenile and the police knew it, the grandmother “could not have aided the juvenile in making a knowing, intelligent, and voluntary waiver of her constitutional rights.” Id. at 696-697. (Emphasis added).

39. This case presents a far more grave case of objective hostility than did Legler. In that case, the grandmother had said she didn’t want the juvenile to live in her home anymore. In this case, the police told Ms. Miller that John had killed her daughter.

40. The statute expects that the adult who advises the child with regard to waiving or asserting constitutional rights will act “on the side” of the child and “have his best interest uppermost in mind when called upon to be with a juvenile who is in police custody for alleged criminal activity.” People v. Maes, 571 P.2d 305, 306 (Colo. 1977).

41. The General Assembly intended C.R.S. 19-2-511(1) to “ensure that a juvenile during police interrogation is advised and counseled concerning his or her Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel by someone whose interests are consistent with those of the child.” People v. S.M.D., 864 P.2d 1103, 1106 (Colo. 1994).

42. Ms. Miller, as the surviving immediate family member of Joanne Rinebarger, is a victim under the Colorado Constitution. Colo. Const. art. II, section 16(a); see also, C.R.S. § 24-4.1-302(5). The interests of a victim of a crime and an alleged perpetrator of that crime are axiomatically hostile to one another. “[I]t is not sufficient to have the presence of an [adult] when that [adult] is unable to function in the adviser role[.]” People In The Interest Of J.F.C., 660 P.2d 7, 8 (Colo. App. 1982).

43. Thus, as was the case in Legler, the statements seized from John during his two-hour interrogation must be suppressed. Law enforcement had actual knowledge that Ms. Miller’s interests were hostile to John’s. In fact, they contributed to this hostility by “preparing” her for her role in the interrogation by providing her with details of her daughter’s death before ask her to agree to the interrogation.

VIII. THERE WAS NO KNOWING, INTELLIGENT AND VOLUNTARY WAIVER OF RIGHTS IN THIS CASE

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44. The government always bears the burden of proving that statements produced by a custodial interrogation are preceded by a proper advisement of rights and a knowing, intelligent and voluntary waiver of those rights. Miranda, supra; see also, e.g., People v. May, 859 P.2d 879, 882 (Colo. 1993).

45. This requirement recognizes the “inherently compelling pressures present in custodial interrogations that work against the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” People v. Probasco, 795 P.2d 1330, 1333 (Colo. 1990) (quoting Minnesota v. Murphy, 465 U.S. 420, 430 (1984)).

46. A waiver is only voluntary if the government can show that it “was the product of a free and deliberate choice, rather than intimidation, coercion, or deception.” People v. Humphrey, 132 P.3d 352, 356 (Colo. 2006).

47. A waiver is knowing and intelligent if the government can convince the court that the defendant “was fully aware ‘both of the nature of the right being abandoned and the consequences of the decision to abandon it.’” Humphrey, supra (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). In order to meet its burden, the government must satisfy the court that the accused was sufficiently aware of the continuing nature of his constitutional rights as to render any subsequent statement the result of a knowing, intelligent and voluntary waiver of those rights.” People v. Chase, 719 P.2d 718, 721 (Colo. 1986).

48. This inquiry looks to the totality of the circumstances. Humphrey, supra. Some factors to consider include:

a. The time between the initial advisement and the interrogation;

b. Whether or how much the suspect knows about the subject of the interrogation before it begins;

c. Whether the interview was initiated by the police or the suspect;

d. Whether the accused was reminded of his rights;

e. The clarity and form of the accused’s waiver and acknowledgement of his rights;

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f. How much experience the accused had with the criminal justice system;

g. The accused’s age, experience, background, education and intelligence.

Id.; see also Humphrey, supra; People in the Interest of M.R.J., 633 P.2d 474 (Colo. 1981).

49. Here, John’s waiver was not voluntary. He was surrounded by police officers and by the mother of the woman he was accused of killing. He had no one to counsel him and act in his best interests with regard to the decision of whether to waive or assert his constitutional rights to silence and to counsel. In fact, the police affirmatively misled Verla Miller when Agent Schierkolk told her he “wasn’t sure” if John needed a lawyer, despite the desperately serious subject of the interrogation.

50. Additionally, selecting Ms. Miller to act as John’s adviser with regard to his constitutional rights was inherently coercive. Coercive police conduct not only includes physical abuse or threats directed against a person but also subtle forms of psychological coercion. Arizona v. Fulminante, 499 U.S. 279 (1991). Ms. Miller was clearly distraught over her daughter’s death and John was about to be interrogated about his role in that death. Neither he nor Ms. Miller made a free and deliberate choice about waiving or asserting his constitutional rights.

51. John’s waiver was also not made knowingly and intelligently. He did not know the nature of his rights prior to relinquishing them, nor did he understand the consequences of his decision. In fact, it was not a decision at all, but rather a paper that was given to him to sign without any adult present who was competent to talk to him about his options and the consequences attached to those options.

52. The Chase factors, supra, along with all of the other circumstances surrounding the interrogation, demonstrate that the government cannot meet its burden of showing a knowing, intelligent, and voluntary waiver of rights by John prior to his interrogation. The age and experience of a juvenile “should weigh heavily ‘in a consideration of the circumstances of an interrogation.’” People In The Interst of J.C., 844 P.2d 1185, 1189-90 (Colo. 1993) (quoting Leon v. United States, 380 A.2d 989, 992 n. 6 (D.C. Ct. App. 1977)).

IX. JOHN’S STATEMENTS WERE INVOLUNTARY UNDER THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION

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AND SECTION 25 OF THE COLORADO CONSTITUTION AND ARE INADMISSIBLE FOR THAT

REASON, AS WELL.

53. Inculpatory statements to the police must be voluntary to be admissible as evidence against an accused at trial. Jackson v. Denno, 378 U.S. 368, 376 (1964); People v. Jensen, 747 P.2d 1247, 1251-52 (Colo. 1987); People v. Rhodes, 729 P.2d 982, 984 (Colo. 1986); People v. Freeman, 668 P.2d 1371, 1378 (Colo. 1983).

54. In determining whether a juvenile’s confession is voluntary, the primary factors to be considered are the juvenile’s age, experience, background, and intelligence, his capacity to understand warnings given to him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. People in the Interest of M.R.J., 633 P.2d 474 (Colo. 1981).

55. The government has the burden to establish by a preponderance of the evidence that the confession or statement was voluntarily made. Lego v. Twomey, 404 U.S. 477, 489 (1972); People in the Interest of M.R.J., supra.

56. “While statements made by a defendant in circumstances violating the strictures of Miranda are subject to only partial suppression, allowing the prosecution to use the statements for impeachment purposes, involuntary statements must be completely suppressed.” Effland, supra, ___ P.3d at ___, slip op. at 21.

57. When considering the question of voluntariness, the focus is on coercive governmental conduct:

The focus of the voluntariness question is “whether the behavior of the state’s law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined—a question to be answered with complete disregard of whether or not the [defendant] in fact spoke the truth.

Effland, supra (quoting Rogers v. Richmond, 365 U.S. 534, 544 (1961)).

58. In addition to all of the other circumstances surrounding the confession, the court is obliged to consider the mental condition of the

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person making the statement, in determining the question of voluntariness. People v. Raffaelli, 647 P.2d 230, 235 (Colo. 1982):

While a defendant’s mental condition, by itself and apart from its relationship to official coercion, does not resolve the issue of constitutional voluntariness, the deliberate exploitation of a person’s weakness by psychological intimidation can under some circumstances constitute a form of governmental coercion that renders a statement involuntary.

Gennings, supra at 844 (internal citations omitted).

59. Here, law enforcement exerted a substantial and significantly coercive form of pressure upon John. Agent Schierkolk intimated that John was a liar. He asked John the same questions over and over again until he could see that John was frustrated. He left the room and came back in while Detective Franck was interrogating John.

60. Detective Franck referred to John as her “bud.” She told John that they had made friends over the preceding seven hours, that she had assured his needs were met, and asked him several times if he trusted her.

61. Detective Franck talked excitedly, almost in a child-like voice with John, in the middle of the interrogation, about their mutual desire to travel to Australia and their love of pickles. She told John about her first experience driving and they talked about their pets.

62. Detective Franck engaged in a lengthy discussion with John about his best friend, Alex. In particular, she talked to John about the bullying he and Alex had both been subjected to. She talked to John about his other friends and about how many friends he had on Facebook. Detective Franck empathized with John about the pain he felt growing up without a father and John’s wish that Tracy Rinebarger would have adopted him. Detective Franck repeatedly encouraged John to relieve the “big burden inside” and to get the “chip off” his shoulder. She told John several times that she could see the pain in him and she understood how he was feeling.

63. Detective Franck talked to John about what her “job” was and what she needed him to do to help her. Detective Franck enlisted John’s help in “getting the people” who killed John’s parents. She told John that he was a “smart man” and praised him for corrected her mistake.

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Detective Franck told John several times that she did not believe him and even elicited the help of Ms. Miller to discount John’s story.

X. ALL STATEMENTS PROVIDED BY JOHN CAUDLE, INCLUDING THOSE MADE IN THE PRESENCE OF HIS GRANDMOTHER AFTER

IMPROPERLY WAIVING HIS MIRANDA RIGHTS, SHOULD BE SUPPRESSED AS THE

“FRUITS OF A POISONOUS TREE.”

64. Evidence that is obtained by police as the result of their improper or illegal conduct must be suppressed as a “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471 (1963); People v. Corpany, 859 P.2d 865 (Colo. 1993); People v. Sprowl, 790 P.2d 848 (Colo. Ct. App. 1989).

XI. RELIEF REQUESTED

Based upon all of the foregoing facts and authorities, John Caudle seeks a ruling from this Court that all statements and derivative fruits must be suppressed at trial, based upon a violation of his Miranda rights and because they were not made voluntarily, knowingly, or intelligently. In addition to the other authorities upon which he relies, John Caudle also relies upon the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution and art. II, sections 16 and 25 of the Colorado Constitution.

DOUGLAS K. WILSONCOLORADO STATE PUBLIC DEFENDER

___________________________________Amanda C. Hopkins #38677Deputy State Public Defender420 San Juan AvenueAlamosa, Colorado 81101(719) 589-9615/9666

Certificate of ServiceI certify that on ____________________, I served the foregoing document by delivering _____ mailing _____ same to all opposing counsel. ________________

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DISTRICT COURTRio Grande County, Colorado925 6th StreetDel Norte, Colorado 81132______________________________________________THE PEOPLE OF THE STATE OF COLORADO,Plaintiff.

vs.

JOHN CAUDLE,Defendant.

▲ Court Use Only ▲DAVID MAHONEE, DISTRICT ATTORNEYDaniel W. Edwards, Special Deputy District Attorney Case Number:

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Colorado Attorney General’s Office1525 Sherman Street, 7th FloorDenver, Colorado 80203Phone: 303-866-5760Fax: 303-866-5671Atty Reg. # 7938

Daniel R. McIntyre, Deputy District Attorney, 40084Crista Maestas, Deputy District Attorney, 39178925 6th Street, South WingDel Norte, Colorado 81132Phone: 719-657-3670Fax: 719-657-3670

2009 CR 239

PEOPLE’S RESPONSE TO DEFENDANT’S “MOTION TO SUPPRESS STATEMENTS OF A CHILD OBTAINED WITHOUT THE PRESENCE OF A RESPONSIBLE ADULT IN VIOLATION OF TH EUNITED STATES CONSTITUTION, THE COLORADO CONSTITUTION, THE COLORADO CHILDREN’S CODE, AND MIRANDA v. ARIZONA D-37”

COMES NOW, DAVID MAHONEE, District Attorney for the 12th Judicial District, by and through his duly appointed deputies, and respectfully files this “People’s Response to Defendant’s Motion to Suppress Statements D-37.” Pursuant to statute and case law, Verla Miller was a responsible adult. The statements made by the defendant were constitutionally voluntary. There was no Miranda violation. Finally, there are no fruits of a Miranda violation or a statutory violation, and therefore, no suppressible evidence. After an evidentiary hearing, the People will argue accordingly.

I. Factual Allegations Must Await An Evidentiary Hearing

1. The defendant makes various factual allegations that are matters of proof at an evidentiary hearing. The People disagree with the defendant recitation of the facts. The specific facts that are brought out at that hearing will guide this Court’s findings of fact and conclusions of law.

II. Miller Was A “Responsible Adult” Under the Statute

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2. Whether Verla Miller was an appropriate person under the statute is subject to factual determinations by this Court. The crucial issue at the hearing will be whether Ms. Miller was a “parent, guardian, or legal or physical custody

3. The statute, §19-2-511, in pertinent part states as follows:

(1) No statements or admissions of a juvenile made as a result of the custodial interrogation of such juvenile by a law enforcement official concerning delinquent acts alleged to have been committed by the juvenile shall be admissible in evidence against such juvenile unless a parent, guardian, or legal or physical custodian of the juvenile was present at such interrogation and the juvenile and his or her parent, guardian, or legal or physical custodian were advised of the juvenile's right to remain silent and that any statements made may be used against him or her in a court of law, of his or her right to the presence of an attorney during such interrogation, and of his or her right to have counsel appointed if he or she so requests at the time of the interrogation; except that, if a public defender or counsel representing the juvenile is present at such interrogation, such statements or admissions may be admissible in evidence even though the juvenile's parent, guardian, or legal or physical custodian was not present.

(3) Notwithstanding the provisions of subsection (1) of this section, statements or admissions of a juvenile shall not be inadmissible in evidence by reason of the absence of a parent, guardian, or legal custodian if the juvenile was accompanied by a responsible adult who was a custodian of the juvenile or assuming the role of a parent at the time.

(emphasis added).

4. People v. Legler, 969 P.2d 691 (Colo. 1998) should be considered in determining whether Ms. Miller’s position satisfied the statute. However, Legler addressed only two issues: (1) whether the juvenile’s grandmother qualified as a “physical custodian” under § 19-2-511(1) and (2) the hostility between the juvenile and grandmother rendered the grandmother incompetent to assist in waiving her constitutional rights under 19-2-511(1). Id. at 693. While it is true in this case that the grandmother was not the “physical custodian,” the grandmother

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was looking out for the best interests of the defendant. In Legler:

a. the Department of Social Services was the legal custodian of Legler;

b. Jennings, Legler’s grandmother, served as a foster care provider, as the physical custodian;

c. Legler ran away from her grandmother’s house;

d. when Legler was found, Jennings refused to have Legler return, making “it clear that Legler was not welcome to return;”

e. Legler was on the run when the interrogation occurred;

f. Jennings, Legler’s grandmother was present at the interrogation;

g. Legler’s guardian-ad-litem faxed a letter to the police stating that Legler was not to be interviewed without an attorney present;

h. a public defender arrived before the interrogation began, but was denied access to Legler

5. The determination of whether an individual is acting in the best interests of the child is a fact-intensive question, not a simple question of whether under the law the person was in fact a parent or custodian. To “ensure that a juvenile during police interrogation is advised and counseled concerning his or her Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel by someone whose interests are consistent with those of the child.” Legler, 969 P.2d at 695 citing People v. S.M.D., 864 P.2d 1103, 1106 (Colo. 1994) (court appointed guardian ad litem in separate action sufficiently protective of juvenile’s interest to serve as custodian) and compare People v. Maes, 194 Colo. 235, 571 P.2d 305 (1977) (social service caseworker not acting in capacity of parent, guardian or legal custodian where the caseworker had not seen the defendant for 18 months prior to interrogation and the caseworker indicated he had no special concern or interest in the juvenile) with People v Cunningham, 678 P.2d 1058 (Colo.App. 1983) (holding social worker could be custodian for the defendant during interrogation where he was acting

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as the child’s custodian after parental rights had been terminated and interests were not adverse to the child).

6. The evidence in this case will show that while Ms. Miller was distraught over the death of her daughter, she was still able to act in the defendant’s best interests and, in fact, after the interrogation gave the defendant a hug.

III. All Constitutional Requirements Concerning Statements Were Satisfied.

7. There are three constitutional bases upon which a criminal defendant may attack his statement to government agents: (1) the statement was involuntary as a violation of due process, implicating the Fourteenth Amendment, Brown v. Mississippi, 297 U.S. 278 (1936); Lego v. Twomey, 404 U.S. 477 (1972); Colorado v. Connelly, 479 U.S. 157 (1986); (2) the statement was taken in violation of Miranda as protective of the Fifth Amendment as applied to the States through the Fourteenth Amendment, Miranda v. Arizona, 384 U.S. 436 (1966); and (3) the statement was taken in violation of a defendant’s right to counsel in violation of the Sixth Amendment, as applicable to the States through the Fourteenth Amendment. Massiah v. United States, 377 U.S. 201 (1964); Montejo v. Louisiana, __ U.S. __, 129 S.Ct. 2079 (2009). The defendant in this case specifically challenges his statement as a violation of Miranda, confounds the Miranda requirements with the due process voluntariness requirements sufficiently to raise an involuntariness issue, and makes no claim of a violation of his right to counsel.

A. There Was No Miranda Violation

8. The constitutional analysis for Miranda is best set forth in two cases: Colorado v. Connelly, 479 U.S. 157 (1986), and Effland v. People, 2010 WL 3733539 (Colo. 9/27/10). In People v. Connelly, 702 P.2d 722 (1985), the Colorado Supreme Court held that the “proper test” for admissibility is whether the statements are “the product of a rational intellect and a free will,” unhinged from any government action. In Colorado v. Connelly the United States Supreme Court held that this was an improper standard. The Court held that

“(T)he cases considered by this Court over the 50 years since Brown v. Mississippi have focused upon the crucial element of

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police overreaching. While each confession case has turned on its own set of factors justifying the conclusion that police conduct was oppressive, all have contained a substantial element of coercive police conduct. Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.” . . . .

“The difficulty with the approach of the Supreme Court of Colorado is that it fails to recognize the essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other. The flaw in respondent's constitutional argument is that it would expand our previous line of “voluntariness” cases into a far-ranging requirement that courts must divine a defendant's motivation for speaking or acting as he did even though there be no claim that governmental conduct coerced his decision.”

479 U.S. at 163-64; at 166 (emphasis added).

9. If a court finds that the suspect was both in custody and under interrogation, then the court must determine whether there has been a valid waiver of a defendant’s Miranda rights. In determining whether there was a valid waiver a court must decide two questions: first, whether the waiver was made voluntarily and second, whether the waiver was made “knowingly and intelligently.” People v. Humphrey, 132 P.3d 352, 356 (Colo. 2006). Each factor is judged against the totality of circumstances standard. Id. When considering voluntariness of the waiver, “the sole concern here is the presence or absence of government coercion.” Id. at 357, citing Connelly. “Accordingly, we look to the government's actions with respect to the defendant's Miranda waiver to determine whether the waiver was made voluntarily or whether it was the product of official coercion or compulsion.” Id.

10. The defendant alleges in this part of the motion that “he had no one to counsel him . . . .” This confounds the statutory issues with the constitutional issues. There is no constitutional right that requires a juvenile to have an adult present during interrogation and the defendant cites none. The defendant only repeats arguments already made and no new constitutional challenge.

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11. The defendant merely concludes without allegation of any specific facts that the defendant’s waiver was “not made knowingly and intelligently.”

12. The defendant argues that the Colorado Supreme Court has stated that “the age and experience of a juvenile “should weigh heavily ‘in a consideration of the circumstances of an interrogation.’” Paragraph 52. The defendant while correctly citing the sentence, misconstrues this portion of the decision. People in the Interest of J.C., 844 P.2d 1185, 1189-90 (Colo. 1993), concerned the issue of custody, not the issue of voluntary, knowing and intelligent waiver. The Court actually stated:

“In its initial ruling, the district court correctly identified this totality-of-the-circumstances test as being applicable to the analysis of the present case. The court also noted that the age and experience of the juvenile “ ‘should weigh heavily in a consideration of the circumstances' of a confession.” Although the court stated that it weighed the totality of the circumstances in making its determination of custody, that declaration is not supported by the record. Instead, it is evident that the court focused its complete attention on J.C.'s age as the determinative factor in the finding of custody.

We agree that the age of the person interrogated is a factor to be considered in a totality-of-the-circumstances situation; however, we do not find it to apply to the exclusion of all other factors in the weighing process. It is clear that a person lacking age and experience, when confronted by a police officer, will sustain some sense of fear. We have previously found, however, that, despite a juvenile's fear and ignorance as to her ability to cease the questioning and leave, custody had not been imposed. This is due to the rule that the determination of custody does not turn on the subjective beliefs of the accused or the police officer. Thus J.C.'s supposed fear and awe of authority, which was assumed by the court but never stated by J.C., will not necessarily prove determinative to a finding of custody.”

(emphasis added)(citations omitted). The defendant has taken his quotation out of context. The Supreme Court was discussing what the

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trial court stated, not holding that the factor “should weigh heavily.” Rather, age is “a factor” in the “totality-of-the-circumstances” test.

B. The Statements Were Constitutionally Voluntary

13. The defendant states that his statements were “involuntary under the Fourth Amendment.” Issue Heading IX. There is no voluntariness issue concerning statements in the Fourth Amendment. But assuming that the defendant meant the Fourteenth Amendment, the voluntariness of a statement is an independent inquiry from the voluntariness of a waiver for Miranda purposes.

14. In Effland, the Colorado Supreme Court did separate analysis on whether there was a violation of Miranda, pages 4 – 7, and then whether there was a violation of the voluntariness requirement, pages 7 – 10.

15. The defendant again cites a case decided prior to Colorado v. Connelly where the requirements of voluntariness focus on the suspect, not on police activity. Paragraph 54. This notion was discredited in Connelly and has long been abandoned by the Colorado Courts. Colorado v. Connelly was decided on December 10, 1986. The Colorado Supreme Court first cited to Connelly in People v. Rhodes, 719 P.2d 982 (Colo. 1986), only two weeks later. The Colorado Supreme Court held that the record “does not indicate that the defendant’s statements were induced by coercive police activity,” in reversing a trial court’s finding that the defendant’s psychosis rendered any statement “involuntary.” Id.

16. An involuntary waiver for Miranda purposes is not the same thing as an involuntary statement. See United States v. Patane, 542 U.S. 630 (2004) (holding that “the Miranda rule is not a code of police conduct, and police do not violate the Constitution (or even the Miranda rule, for that matter) by mere failures to warn); Effland v. People, (holding “the focus of the voluntariness question is ‘whether the behavior of the State’s law enforcement officials was such as to overbear (the defendant’s) will to resist and bring about confessions not freely self-determined – a question to be answered with complete disregard of whether or not the (defendant) in fact spoke the truth.” citing Rogers v. Richmond, 365 U.S. 534, 544 (1961)).

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17. The defendant only points to the same facts in arguing that the statement was in violation of the statute, in violation of Miranda, and involuntary. There is no violation of the statute. There is no violation of Miranda. The statements are not involuntary.

C. There Are No Suppressible Fruits of A Miranda Violation.

18. Interestingly, the defendant cites to three search/seizure cases to argue that “evidence that is obtained by police as the result of their improper or illegal conduct must be suppressed as a ‘fruit of the poisonous tree.” Paragraph 64. Wong Sun, 371 U.S. 471 (1963) (illegal search of business); People v. Corpany, 859 P.2d 865 (Colo. 1993) (illegal search fanny pack); People v. Sprowl, 790 P.2d 848 (Colo.App. 1989) (illegal search house). Again, the defendant is wrong. The United States Supreme Court has specifically held that there are no suppressible fruits of a Miranda violation. In United States v. Patane, 542 U.S. 630 (2004), the defendant made a statement that was found to be in violation of Miranda. Within the statement was a reference to the location of a pistol. The pistol was found and later introduced in evidence at trial. The United States Supreme Court held that “the exclusionary rule articulated in cases such as Wong Sun does not apply” to violations of Miranda.” Id. at 636.

19. The exclusionary rule generally does not apply to statutory violations unless the statute contains exclusionary language itself. See, e.g., Sanchez-Llamas v. Oregon, 548 U.S. 331, 347 (2006) (holding that violation of right to consular notification does not require suppression of evidence); People v. Clayton, 207 P.3d 831 (Colo. 2009) (holding that “suppression of evidence is generally reserved to remedy violations of constitutional rights, and is not used to remedy statutory violations.”). If a violation of the statute is found, the statute requires that “no statements of admissions . . . shall be admissible in evidence.” § 19-2-511(1). There is nothing in §19-2-511 that refers to the fruits of any statement that is taken in violation of the statute, and therefore suppression of fruits of those statements is not required.

IV The Request For Relief Inappropriately Cites Inapplicable Provisions

20. The request for relief again confounds the Miranda rule based on the Fifth Amendment and voluntariness based on the Fourteenth Amendment. For Miranda purposes, any waiver must be (1) voluntary

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and (2) knowing and intelligent. For voluntariness, the statement itself must not be the result of government misconduct. Therefore, the defendants statement that suppression is appropriate as “based upon a violation of his Miranda rights and because they were not made voluntarily, knowingly, or intelligently” is entirely confusing. Further the defendant states that he relies upon the Fourth Amendment and Sixth Amendment without ever having indicated what Fourth Amendment right or Sixth Amendment right is implicated. Further the defendant cites to Article II, Section 16 of the Colorado Constitution without ever explaining or citing to a case that holds that this provision applies at all. Simply put, the defendant lacks any good faith in making these allegations in his request for relief.

For the foregoing reasons, the People respectfully requests that this Court hold an evidentiary hearing to determine the facts and before making any conclusions of law concerning this matter.

JUVENILE COURT

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Rio Grande County, Colorado925 6th StreetDel Norte, Colorado 81132______________________________________________

THE PEOPLE OF THE STATE OF COLORADO,Petitioner.

In the Interest of:

JOHN CAUDLE,A Juvenile

▲ Court Use Only ▲

DAVID MAHONEE, DISTRICT ATTORNEYDaniel W. Edwards, Special Deputy District AttorneyColorado Attorney General’s Office1525 Sherman Street, 7th FloorDenver, Colorado 80203Phone: 303-866-5760Fax: 303-866-5671Atty Reg. # 7938

Geoffrey D. Rieman, Deputy District Attorney, 40538Daniel R. McIntyre, Deputy District Attorney, 40084925 6th Street, South WingDel Norte, Colorado 81132Phone: 719-657-3670Fax: 719-657-3670

Case Number:2009 JD 58

PEOPLE’S RESPONSE TO DEFENDANT’S “MOTION TO COMPEL THE PROSECUTION TO PROVIDE THE DEFENSE WITH THE ORAL STATEMENTS OF WITNESSES” D-9

COMES NOW, DAVID MAHONEE, District Attorney for the 12th Judicial District, by and through his duly appointed deputies, and respectfully files this Response to the juvenile’s “Motion to Compel the Prosecution to Provide the Defense With the Oral Statements of Witnesses” D-9. The

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constitution provides no general constitutional right to discovery in a criminal case, except for impeaching, exculpatory, or mitigating evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. Therefore, when determining whether discovery is required, the Court must look to the Rules of Criminal Procedure. The Colorado Appellate Courts have held that there is no requirement in Crim.P. 16 for the reduction of oral statements of witnesses and the production of such statements to the defense, except the substance of oral statements of the defendant and any co-defendant.

1. The United States Supreme Court has stated that “there is no general constitutional right to discovery in a criminal case, and Brady did not create one.” Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (cited in People v. District Court of El Paso County, 790 P.2d 332, 338 (Colo. 1990)). Under the Brady doctrine information that is impeaching, exculpatory, or mitigating must be provided to the defendant. Brady v. Maryland, 373 U.S. 83 (1963). Otherwise, any discovery is governed by statutes and court rules. “By providing additional means for disclosure, Colorado’s rules of criminal procedure to some extent compensate for the limitations on the protection afforded criminal defendant under the Brady doctrine.” People v. District Court, 790 P.2d at 338.

2. There is no requirement under Crim.P. 16 that any oral statements given to law enforcement or the People be reduced to writing and provided to the defendant. In People v. Denton, 91 P.3d 388, (Colo.App. 2003), the Court of Appeals held:

“In our view, the current Crim. P. 16(I)(a)(1)(I) only requires the prosecution to provide the defense with the written statements of witnesses or any written reports that quote or summarize oral statements made by witnesses. If the supreme court had intended the amendment of Crim. P. 16(I)(a)(1)(I) to require the disclosure of unrecorded oral statements, then it would have so specified . . . .”

In People v. Garcia, 627 P.2d 255, 259 (Colo.App. 1980) the Court of Appeals held:

“We note that the discovery order entered here comports with Crim. P. 16(I)(a)(1), which requires that the following material be provided:

“The names and addresses of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial, together with their relevant written or recorded statement.”

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This rule specifically requires disclosure only of the substance of oral statements made by the accused, or, if a joint trial is to be held, by a co-defendant. Crim. P. 16(I), (II). This limitation on the disclosure of oral statements suggests that, aside from these specified situations, additional disclosure is not mandated. Imposition of a greater burden is not warranted where, as here, the prosecution has fulfilled its obligation to defendant pursuant to a valid discovery order in compliance with Crim. P. 16.”

3. The defendant cites People v. Thatcher, 638 P.2d 760, 768 (Colo. 1981) in support of the proposition that oral statements should be reduced to writing and given to the defendant. D-9, paragraph 1. The Thatcher case was specifically overruled by amendments to the Rules of Criminal Procedure and the overruling recognized in People v. District Court of El Paso County, 790 P.2d 332, 336-37 (Colo. 1990) (holding that prosecutor’s notes of witness’ oral statements “fall outside the specifically enumerated categories” in Crim.P. 16). The Thatcher case has not been good law on this point since 1990.

4. The defendant cites Goodwin v. District Court, 588 P.2d 874 (1979) D-9, paragraph 1. Goodwin did not involve oral statements at all, but the production of a written statement that was made by a witness. This case has nothing to do with oral statements.

5. The defendant’s motion notes that the rule of criminal procedure was amended in 1985, but fails to acknowledge that the amendment of the rule overruled Thatcher. D-9, paragraphs 3, 4, 5.

6. The defendant states that any oral statement would be in the “possession, custody, and control of a law enforcement agency.” D-9, paragraph 7. First, the Criminal Rules do not require the production of oral statements to the defendant except for the substance of oral statements of the defendant or his co-defendant, Crim.P. 16 Part I(a)(VIII). Second, the Criminal Rules do not place upon the People the obligation to provide all materials in the “possession, custody, and control” of any law enforcement agency, but only of “any others who have participated in the investigation or evaluation of the case and who either regularly report, or with reference to the particular case have reported, to his or her office.” Crim.P. 16, Part I, (a)(3). In the same paragraph the defendant cites to Ortega v. People, 426 P.2d 180 (Colo. 1967) which was superseded by amendment to the Criminal Rules as recognized in People ex rel Shinn v. District Court, 469 P.2d 732, 733 (Colo. 1970). Ortega has not been good law since 1970.

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7 The defendant is not entitled to the substance of oral statements with the exception of what is provided for in Crim.P. 16 and what is required by Brady and its progeny.

8. The allegation of bad faith by the People and law enforcement is itself made in bad faith, without any factual predicate. D-9, paragraph 9.

The People respectfully request that this Court deny D-9 except for the substance of any statements made by the defendant.

DISTRICT COURTRio Grande County, Colorado925 6th Street

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Del Norte, Colorado 81132______________________________________________THE PEOPLE OF THE STATE OF COLORADO,Plaintiff.

vs.

JOHN CAUDLE,Defendant.

▲ Court Use Only ▲DAVID MAHONEE, DISTRICT ATTORNEYDaniel W. Edwards, Special Deputy District AttorneyColorado Attorney General’s Office1525 Sherman Street, 7th FloorDenver, Colorado 80203Phone: 303-866-5760Fax: 303-866-5671Atty Reg. # 7938

Daniel R. McIntyre, Deputy District Attorney, 40084Crista Maestas, Deputy District Attorney, 39178925 6th Street, South WingDel Norte, Colorado 81132Phone: 719-657-3670Fax: 719-657-3670

Case Number:2009 CR 239

PEOPLE’S RESPONSE TO DEFENDANT’S “MOTION FOR CHANGE OF VENUE TO A COUNTY OR JURISDICTION THAT CAN PROVIDE FOR AN EXPEDITIOUS TRIAL

BY A FAIR AND IMPARTIAL JURY D-38”

COMES NOW, DAVID MAHONEE, District Attorney for the 12th Judicial District, by and through his duly appointed deputies, and respectfully files this “People’s Response to Defendant’s Motion for Change of Venue to a County or Jurisdiction That Can Provide For an Expeditious Trial by a Fair and Impartial Jury D-38.” First, this is not a case where the presumption of prejudice requiring a change of venue applies. “Only when the publicity is so ubiquitous and vituperative that most jurors in a community could not ignore its influence is a change of venue required before voir dire.” People v. McCrary, 190 Colo. 538, 545, 549 P.2d 1320, 1326 (1976). Presumptive prejudice cannot be predicated exclusively on news account of a crime. Skilling v. United States, ___ U.S. ___, 130 S.Ct. 2896, 2914 (2010). The defendant has not and cannot satisfy this requirement. Second, this is not a case where, at this stage, the

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defendant can demonstrate actual prejudice requiring a change of venue. As a general matter, actual prejudice can only be demonstrated by an unsuccessful attempt to obtain a fair and impartial jury during voir dire. Third, the affidavits in support of the defendant’s motion are insufficient under Crim.P. Rule 21(a) to demonstrate either presumptive or actual prejudice. Fourth, holding the trial in Alamosa as opposed to Del Norte does not provide for a “more expeditious” trial. The People do not stipulate to a change of venue. The defendant’s motion for change of venue should be denied.

1. Venue is based first upon constitutional provisions. The United States Constitution in Article III, § 2, cl. 3 and the Sixth Amendment require that a crime be tried where “the crime shall have been committed.” The Colorado Constitution, Article II, § 16 provides for an “impartial jury of the county or district in which the offense is alleged to have been committed.

2. However, transfer of venue, as a constitutional matter, may be had where there is extraordinary local prejudice that will prevent a fair trial as a basic due process right of the defendant. See Skilling v. United States, __ U.S. __, 130 S.Ct. 2896 (2010) “The theory of our (trial) system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Id. at 2913, citing Patterson v. Colorado ex real Attorney General of Colo., 205 U.S. 454, 462 (1907).

3. “The constitutional standard of fairness requires that a defendant have a panel of impartial and unbiased jurors. However, an important criminal case can be expected to generate much public interest and usually the best qualified jurors will have heard or read something about the case. To hold that jurors can have no familiarity through the news media with the facts of the case is to establish an impossible standard in a nation that nurtures freedom of the press. It is therefore sufficient if jurors can lay aside the information and opinions they have received through pretrial publicity.” People v. McCrary, 190 Colo. 538, 549 P.2d 1320, 1325 (Colo. 1976) citing to Murphy v. Florida, 421 U.S. 794 (1975), Irvin v. Dowd, 366 U.S. 717 (1961).

4. Whether a change of venue is appropriate is analyzed through a two-step process: first, whether there has been massive, pervasive and prejudicial publicity such that there should be a presumption of prejudice, and second, whether there was actual prejudice. Skilling, 130 S.Ct. at 2914-15; McCrary, 190 Colo. 538, 546, 549 P.2d 1320, 1326 (1976) (holding that where only eight out of 100 jurors impaneled stated they had not heard or read about the case, and where 68 jurors were

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individually questioned, 28 of whom were dismissed for cause there was neither presumptive prejudice nor actual prejudice); People v. Bartowsheski, 661 P.2d 235, 240-41 (Colo. 1983) (finding neither a requirement of a presumption of prejudice or actual prejudice); People v. Harlan, 8 P.3d 448, 469 (Colo. 2000) (holding that “the existence of extensive pretrial publicity does not alone trigger a due process entitled to a change of venue.”); People v. Munsey, 232 P.3d 113, 121 (Colo.App. 2009).

I. Under Federal Law Concerning Presumption of Prejudice There Is No Presumption of Prejudice Applicable in This Case

5. United States Supreme Court cases that discuss the presumption of prejudice begin with Rideau v. Louisiana, 373 U.S. 723 (1963). Rideau was charged with robbing a bank and the kidnapping of three employees, one of which he murdered. The police filmed the confession of the defendant. On three occasions shortly before trial the local television station broadcast the confession. Rideau moved for a change of venue. The population of the parish was approximately 150,000. The Supreme Court reversed holding that what was broadcast “was Rideau, in jail, flanked by the sheriff and two state troopers, admitting in detail the commission of the robbery, kidnapping, and murder.” Id. at 725. The Rideau case was followed by Estes v. Texas, 381 U.S. 532, where during pretrial proceedings reporters and television crews overran the courtroom and bombarded the community with a media blitz. The Court held that the “judicial serenity and calm to which (the defendant)was entitled” was denied. Id. at 536. In Sheppard v. Maxwell, 384 U.S. 333, 355 (1966), the courthouse was so rife with media personnel that it thrust the jurors “into the role of celebrities.” The verdict was overturned because of the “carnival atmosphere” that pervaded the trial. Id. at 358. Of these three presumption cases, only Rideau has any application to the current case before this Court.

6. The Rideau-Estes-Sheppard line of cases notwithstanding, those cases “cannot be made to stand for the proposition that juror exposure to . . . news accounts of the crime . . . alone presumptively deprives the defendant of due process.” Skilling, 130 S.Ct. at 2914, (emphasis added) citing Murphy v. Florida, 421 U.S.794, 798-99 (1975). “Prominence does not necessarily produce prejudice, and juror impartiality . . . does not require ignorance.” Skilling at 2914-15 referencing Irvin v. Dowd, 366 U.S. 717 (1961) (where “a barrage of newspaper headlines, articles, cartoons and pictures was unleashed against (the defendant) during the six or seven months preceding his trial,” but holding that jurors are not required to be totally ignorant of

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facts and issues at trial and that the voir dire by the judge was constitutionally sufficient); Reynolds v. United States, 98 U.S. 145, 155-56 (1879) (holding “every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression of some opinion in respect to its merits”). Adverse pervasive pretrial publicity does not inevitably lead to an unfair trial. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 554 (1976).

7. The United States Supreme Court established criteria for determining when a presumption of prejudice arises. First, the size and characteristics of the community. Skilling, 130 S.Ct. at 2915. Second, whether there is a confessor or “other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight.” Id. at 2916. Third, the elapsed time between the publicity and the trial. Id. And, fourth, for purposes of appellate review, the jury’s verdict. Id.

8. In Skilling, the Supreme Court found that a presumption of prejudice was not appropriate even though there had been massive publicity concerning Enron’s downfall. Id. at 2916-17. Appropriate steps at trial may reduce the risk of the impact of prejudicial pretrial publicity. Among those steps include continuance of the trial to a later, less-immediate time. Id. The trial court’s inquiry to the prospective jurors both in a questionnaire and in individual sequestered voir dire of certain jurors who had indicated in the questionnaire exposure to pervasive publicity may also be an appropriate remedy to pretrial publicity. Id.

II. Under Colorado Law Concerning Presumption of PrejudiceThere Is No Presumption of Prejudice Applicable In This Case

9. “Only when the publicity is so ubiquitous and vituperative that most jurors in a community could not ignore its influence is a change of venue required before voir dire.” People v. McCrary, 190 Colo. 538, 545, 549 P.2d 1320, 1326 (1976). Some of the factors to consider in determining whether there is massive, pervasive, and prejudicial pretrial publicity as to bias a community include: the size and type of locale, reputation of the victim, revealed sources of news stories, specificity of newspaper accounts, volume and intensity of coverage, extent of comment by the news reports on the facts, the manner of presentation, the proximity to the time of trial, and the publication of highly incriminating facts not admissible at trial. Id. at 545, 549 P.2d at 1326. The Court in McCrary found that there was not sufficient publicity as to raise a presumption of bias.

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10. The Colorado Supreme Court addressed the presumption of prejudice from “massive, pervasive, and prejudicial publicity” in People v. Botham, 629 P.2d 589 (Colo. 1981). Botham was charged with killing four people in Grand Junction. The local newspaper published approximately 100 articles specifically related to the case, the arrest, and every step of the investigation, The case was also massively covered by local television and radio. Thirteen of the fourteen jurors seated had been exposed to pretrial publicity. Despite these facts, the Colorado Supreme Court held that “this was not a case where there was such massive, pervasive, and prejudicial publicity that the denial of a fair trial can be presumed.” Id. at 597. The Court later determined that despite the presumption not applying, actual prejudice had occurred and reversed the conviction. This case will be discussed later in the actual prejudice section.

11. In Walker v. People, 169 Colo. 467, 458 P.2d 238 (Colo. 1969), the Colorado Supreme Court did apply the presumption of prejudice. A recitation of the pretrial publicity in that case runs over 10 pages in the Colorado Reporter. A careful reading, however, of the publicity and occurrences pretrial and during trial is essential to a full understanding of the reasons the Court did so. The Court stated “to sum up, we conclude that the publicity only meagerly described in this opinion was so extensive, so slanted and prejudicial, so calculated to inflame, and so all-pervasive as to posit this case within the holding of Sheppard.” Id. at 485, 458 P.2d at 247.

12. However, the Colorado Supreme Court ruled shortly after Walker that “it was the intent of Walker that the rule (concerning the presumption of prejudice) should be applied only when the publicity is so extensive and pervasive as was the case in Sheppard and Walker.” Small v. People, 173 Colo. 304, 310, 479 P.2d 386 (Colo. 1970). The Court reaffirmed the rule that “in order to reverse the refusal of a court to grant a motion for change of venue by reason of publicity it must be shown that this publicity had an adverse effect upon the jury panel or a portion thereof,” i.e. actual prejudice. Id. at 309.

13. “In rare cases, a denial of a change of venue will also be reversed upon a showing of ‘massive, pervasive and prejudicial publicity’ where a denial of a fair trial could have been ‘presumed,’ or, in other words, where a reasonable likelihood existed that a fair trial could not be had.” McCrary, 190 Colo. 538, 545, 549 P.2d 1320, 1325 (Colo. 1976) (emphasis added).

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14. The Colorado Supreme Court found no presumption of prejudice from pretrial publicity in a murder case, despite “highly inflammatory information” concerning a heinous murder contained in 64 newspaper articles and extensive television coverage. People v. Harlan, 8 P.3d 448, 468-69 (Colo. 2000).

15. In this case, the number of newspaper articles, in and of themselves, is not sufficient to create a presumption of prejudice. The conclusions that the defendant seeks to reach concerning the victim’s life in Rio Grande County is mere speculation. The defense has failed to meet their burden to show “massive, pervasive and prejudicial publicity.”

III. Under Federal Law Concerning Actual PrejudiceThere Has Been No Demonstration of Actual Prejudice In This Case

16. Where the trial court during voir dire finds prejudicial pretrial publicity the trial judge may: (1) cause extensive voir dire examination of prospective jurors; (2) change the trial venue to a place less exposed to intensive publicity; (3) postpone the trial to allow public attention to subside; (4) empanel veniremen from an area that has not been exposed to intense pretrial publicity; (5) enlarge the size of the jury panel and increase the number of peremptory challenges; or (6) use emphatic and clear instructions on the sworn duty of each juror to decide the issue only on the evidence presented in open court. Nebraska Press Association v. Stuart, 427 U.S. 539 (1976); Botham, 629 P.2d 589, 596 (Colo. 1981). “The critical inquiry is whether the chosen means did in fact preserve the accused’s right to a fair trial.” Botham, 629 at 596.

17. In Irvin v. Dowd, 366 U.S. 717 (1961), the defendant was tried for six murders that received extensive publicity in a small rural community. The defendant sought a change of venue to an adjoining county, but was denied a second request to move the trial out of the district. The voir dire examination lasted four weeks, began with 430 perspective jurors with excusal of 268 for cause as having fixed opinions as to the defendant’s guilt. Almost 90% of those examined had some opinion as to guilt. Two-thirds of the jurors selected had an opinion that the defendant was guilty and were familiar with the materials facts and circumstances of the case, including the fact that other murders were attributed to the defendant. The Supreme Court stated: “with such an opinion (of guilt) permeating (the jurors’ minds) it would be difficult to say that each could exclude this preconception of guilt from his deliberations.” Id. at 727.

IV. Under Colorado Law Concerning Actual PrejudiceThere Has Been No Demonstration of Actual Prejudice In This Case

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18. A defendant is required to show actual prejudice. This actual prejudice is usually shown during voir dire examination of prospective jurors from the venue. For example, In McCrary, 190 Colo. 538, 549 P.2d 1320 (1976), the Court looked to the actual voir dire that was conducted and held that there was no actual prejudice. There were 68 jurors individually questioned, 13 were dismissed for cause on the defendant’s motion and 15 were dismissed by the court, for a total of 28 dismissals. These facts were held to be insufficient to demonstrate that “it must be concluded that it would be improbable that a fair and impartial jury could be selected from the panel as a whole.” Id. at 546, 549 P.2d at 1326.

19. In Botham, 629 P.2d 589 (Colo. 1981), the Court found that there was not a presumption of prejudice, but then reviewed the matter for actual prejudice. “Where a defendant not demonstrated the existence of massive, pervasive, and prejudicial publicity, which would create a presumption that he was denied a fair trial, (citations omitted), he must establish the denial of a fair trial based upon a nexus between extensive pretrial publicity and the jury panel. (citations omitted).” Id. at 597. The Court concluded after a review of both the pretrial publicity and the voir dire examination that the defendant was denied a fair trial. Id.

a. The Court held that “where a defendant demonstrates the existence of a pattern of deep and bitter prejudice throughout the community where he is to be tried, a juror’s assurance that he will be fair and impartial is not conclusive. Id. at 599.

b. Actual voir dire resulted in a finding that more than 50% of the panel were inclined to believe in defendant’s guilt; 50% of the jurors selected believed, at one time or another, that the defendant was guilty; more than 90% of the jury panel had been exposed to pretrial publicity; thirteen of the fourteen jurors selected to hear the case were exposed to pretrial publicity; approximately 50% possessed detailed knowledge of the crime; and all jurors selected to hear the case knew some of the details of the crime.

20. The holding in Small, 173 Colo. 304, 309, 479 P.2d 386 (Colo. 1970) is that a reversal of a conviction because of a denial of a motion for change of venue based upon publicity will be granted only if the defendant can show that “the publicity had an adverse effect upon the jury panel or a portion thereof.”

21. The Colorado Supreme Court continued its application of the Small rule in Sergent v. People, 177 Colo. 354, 497 P.2d 983 (Colo. 1972). News

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reports covered the disappearance of the victim and the arrest and trial of the defendant. Publicity was by newspapers, radio, television, and even in a detective magazine. The articles were based on information from news releases, both by the defense and the prosecution, and by the defendant granting interviews to reporters for the Denver Post. The Court held that there was no presumption of prejudice and the defendant had to establish a “nexus between the publicity and the alleged denial of a fair trial.” Id. at 361, 497 P.2d at 986-87. The Court looked to the actual voir dire to determine that there was no prejudice.

22. The trial court looks to the media coverage as contained in the record. People v. Dore, 997 P.2d 1214, 1220 (Colo.App. 1999). The trial court should consider whether the pretrial publicity was “prejudicial.” Prejudicial pretrial publicity can be balanced out by publicity that is favorable to the accused. Consideration of the coverage is reviewed to determine whether it was balanced. Id. Consideration should also be given to whether any of the articles conveyed sympathy towards the defendant. Id.

23. In People v. Munsey, 232 P.3d 113 (Colo.App. 2009), the Colorado Court of Appeals recently addressed this issue. Approximately 90 newspaper articles were attached to the defendant’s motion. First, the trial court excused prospective jurors for statutory reasons unrelated to publicity. Second, those remaining filed out a jury questionnaire. The attorneys reviewed the responses and agreed to excuse 75 to 80 people. Third, 55 prospective jurors were examined outside the presence of the rest of the venire. Fourth, voir dire examination was held concerning the remaining prospective jurors. The Court found that there was no “daily barrage” of articles and television and radio news reports concerning the murders. The Court held that the defendant had not shown actual prejudice that required a new trial.

24. Whether or not there is actual prejudice awaits voir dire. This Court should follow the Munsey procedure. The Court should call in a sufficiently large number of prospective jurors. Any statutory challenges for cause should be explored and those jurors released. The remaining jurors would then fill out a juror questionnaire. The attorneys would be given a sufficient period of time to review the questionnaires. Any stipulated challenges for cause should then be made. Individual sequestered voir dire concerning publicity should occur. Finally, voir dire in open court would take place. At any time during this procedure, a trial court would have the opportunity to make a determination whether there is sufficient actual prejudice to require a change of venue.

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V. The Affidavit Supporting the Motion Is Legally InsufficientTo Require a Change of Venue

25. Crim.P. Rule 21(a) provides the procedure for a motion for change of venue. Crim.P. Rule 21(a)(2)(I) requires the filing of a motion in writing “accompanied by one or more affidavits setting forth the facts upon which the moving party relies . . . .”

26. Here, the motion is supported by an affidavit which only provides newspaper articles. As the defendant is required to file affidavits “setting forth facts upon which the moving party relies,” only the newspaper articles should be considered at the hearing. All other factual allegations and conclusions in the defendant’s motion should not be considered by this Court.

VI. The Defendant Has Not Demonstrated That a Trial In AlamosaWould Be “More Expeditious” Than a Trial in Del Norte

27. The defendant argues for a “more expeditious trial” by change venue to Alamosa. Any prejudice arising from pretrial publicity in Rio Grande County would be substantially the same in Alamosa County.

28. Crim.P. 21(a)(1) states “the place of trial may be changed when the court in its sound discretion determines that a fair and expeditious trial cannot take place in the county or district in which the trial is pending.” (emphasis added). Thus, as a predicate to a change of venue based upon convenience, the trial court first must determined that it cannot take place in Rio Grande County. The lawyers convenience should not be a factor in the place of trial.

29. The statute, § 16-6-101(1)(b) states that “when a more expeditious trial may be had by a change in the place of trial from one county to another” a change of venue may be ordered. Thus, it is insufficient that it would be equally expeditious to have the trial in Alamosa as opposed to Rio Grande County. The defendant would have to prove that it is “more expeditious.” It does not matter if it would be “practical and more convenient:” that is simply not the test. That Monte Vista is equidistant from Del Norte as from Alamosa balances in favor of Del Norte, not Alamosa.

VII. The People Do Not Stipulate to a Change of Venue

30. The People do not stipulate to a change of venue.

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For the foregoing reasons, the People respectfully request that the defendant’s motion for change of venue be denied.

DATED this _________ day of ____________________, 20_______.

Respectfully Submitted:DAVID MAHONEEDISTRICT ATTORNEY

_____________________________________Deputy District Attorney

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