People v. Eugene

521 P.3d 663

2022 COA 99

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Terrence Kenneth EUGENE, Defendant-Appellant.

Court of Appeals No. 19CA2267

Colorado Court of Appeals, Division II.

Announced September 1, 2022

Rehearing Denied November 23, 2022

Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Katherine C. Steefel, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE PAWAR

¶ 1 Defendant, Terrence Kenneth Eugene, appeals the judgment of conviction entered on jury verdicts finding him guilty of second and third degree assault arising out of a road rage incident. We reverse his convictions and remand for retrial because we conclude that admitting a portion of his interrogation by police violated his Fifth Amendment rights.

I. Background

¶ 2 The undisputed facts at trial established that Eugene was driving with his wife and got into a road rage incident with two men in another vehicle. Eventually, all four individuals got out of their vehicles and Eugene had a physical altercation with the other driver. There was conflicting evidence about who initiated the fight. Both men sustained injuries, though the other driver's injuries were more severe, including cuts to his face and back. When the fight ended, Eugene and his wife got back into their car and left. The two men from the other vehicle remained, called 911, and relayed Eugene's license plate number to the authorities.

¶ 3 Two days later, two police officers arrived at Eugene's apartment and knocked on the door. They asked Eugene if he would step outside and talk to them, and Eugene agreed. What followed was a twenty-seven-minute interrogation that was captured on the body-worn camera of Officer Christopher Thivierge, the interrogating officer. The officers never advised Eugene of his Fifth Amendment rights in accordance with Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). During the interrogation, Officer Thivierge separated Eugene and his wife to interrogate each alone, suggested falsely that he had camera footage of the fight, and denied Eugene's request to go back inside and use the bathroom.

¶ 4 Before trial, Eugene moved to suppress the video of the interrogation, arguing that he was in custody for purposes of Miranda and the lack of a Miranda advisement rendered his statements during the interrogation inadmissible. The trial court held a suppression hearing and ruled that Eugene was never in custody for Miranda purposes. The entirety of Eugene's interaction with the interrogating officer was subsequently admitted at trial (save Eugene's references to being on probation, which were redacted and are irrelevant to this appeal).

¶ 5 The jury found Eugene guilty of second degree assault (reckless) and third degree assault (knowing). The trial court sentenced him to eight years in prison.

¶ 6 On appeal, Eugene argues that the trial court erred by failing to suppress the statements he made during the interrogation. He also argues that the court erred by refusing to give several self-defense instructions, allowing the prosecutor to engage in improper argument, admitting a medical expert's testimony, and failing to merge his convictions. We agree with Eugene that the trial court erred by failing to suppress some of his statements from the interrogation. We further conclude that this error requires reversal and therefore need not address his remaining arguments.

II. The Trial Court Should Have Suppressed Some of Eugene's Statements from the Interrogation

¶ 7 Whether an interrogation was custodial, thus requiring a preceding Miranda advisement, presents a mixed question of fact and law. See People v. Sampson , 2017 CO 100, ¶ 16, 404 P.3d 273. We defer to the trial court's factual findings if they are supported by the record. Id. But we review the court's custody determination de novo. Id.

¶ 8 At the suppression hearing, the only evidence was Officer Thivierge's body-worn camera footage and brief testimony from the second officer, which aligned with the footage. The trial court ruled that Eugene was not in custody and denied the motion to suppress. In so doing, the court found that the officers maintained a distance of four to five feet from Eugene, Eugene had a cigarette during the conversation, no weapons were drawn, and although Officer Thivierge used "assertive mannerisms or language," there was no detectable yelling, threatening, or coercion.

¶ 9 At the hearing, there was no conflicting evidence, nor was the trial court required to make any credibility determinations. We therefore base our analysis on our own review of the body-worn camera footage, mindful that we are in just as good a position as the trial court to determine whether, based on that footage, Eugene was in custody. See id. (reviewing court may consider undisputed facts evident in the record).

A. Governing Law on Custody for Miranda Purposes

¶ 10 Before being subjected to custodial interrogation by law enforcement, a suspect must be advised of his Fifth Amendment rights, including the right to remain silent to avoid self-incrimination. Miranda , 384 U.S. at 444, 86 S.Ct. 1602. A suspect's statements during custodial interrogation that were not preceded by a Miranda advisement are not admissible in the prosecution's case-in-chief (unless the suspect voluntarily, knowingly, and intelligently waives his rights, an issue not relevant to this appeal). See Sanchez v. People , 2014 CO 56, ¶ 11, 329 P.3d 253.

¶ 11 The prosecution concedes, and we agree, that the entire interaction was an interrogation. The question therefore becomes whether all or part of that interrogation was custodial.

¶ 12 To answer that question, we apply an objective test. We ask whether a reasonable person in Eugene's position would have believed that his freedom of action had been curtailed to a degree associated with a formal arrest. Id. at ¶ 18. Our supreme court has made clear that we are to holistically analyze the totality of the circumstances in each particular case. Id. No single fact or factor is determinative. See People v. Matheny , 46 P.3d 453, 466 (Colo. 2002). That said, our supreme court has identified a nonexhaustive list of factors that courts should consider. Id. They are

(1) the time, place, and purpose of the encounter; (2) the persons present during the interrogation; (3) the words spoken by the officer to the defendant; (4) the officer's tone of voice and general demeanor; (5) the length and mood of the interrogation; (6) whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; (7) the officer's response to any questions asked by the defendant; (8) whether directions were given to the defendant during the interrogation; and (9) the defendant's verbal or nonverbal response to such directions.

Id. at 465-66 (quoting People v. Trujillo , 938 P.2d 117, 124 (Colo. 1997) ).

B. The Last Part of Eugene's Interrogation was Custodial

¶ 13 With the above law to guide us, we now review de novo whether the totality of the circumstances rendered Eugene's interrogation custodial at any point. We conclude that although the interrogation was not custodial at the beginning, it became custodial toward the end.

¶ 14 The interrogation began with two officers knocking on the door of Eugene's apartment in the middle of the day. Eugene came to the door, Officer Thivierge asked if he wanted to come talk outside, and Eugene said "sure." Eugene's wife followed Eugene and the officers outside the building, and they began to talk in front of the building's door.

¶ 15 The interrogation unfolded in three distinct phases: first, Officer Thivierge spoke to Eugene and his wife, and then Eugene alone, outside; second, Officer Thivierge went inside and spoke to Eugene's wife while Eugene remained outside accompanied by another officer; and third, Officer Thivierge spoke to Eugene outside again with other officers present.

¶ 16 The entire interaction lasted over twenty-seven minutes. Eugene was never physically restrained. Nevertheless, based on the totality of the circumstances, we conclude that at the beginning of the third phase of the interrogation, a reasonable person in Eugene's position would have believed that his freedom of action was curtailed to a degree associated with a formal arrest.

¶ 17 Officer Thivierge's tone throughout the interrogation was accusatory and confrontational. He raised his voice on more than one occasion, though he did not yell at any point. At the beginning, Officer Thivierge asked Eugene and his wife whether they had been in a road rage incident two days earlier. Eugene's wife started to answer, but Officer Thivierge cut her off, extended his hand outward gesturing her to stop, and talked over her, saying "stop" repeatedly and "before you start making up stories ... how do you think we found you and [Eugene]?" Minutes later, Officer Thivierge asked Eugene's wife to go inside so he could speak to her and Eugene separately. For the remainder of this first phase of the interrogation, the second officer stood between Eugene and the door to the apartment building, keeping his hand on the door handle.

¶ 18 After Eugene's wife went inside, Eugene recounted his version of the fight. Officer Thivierge told him, "I don't believe you." Officer Thivierge also falsely and repeatedly suggested that there was video footage of the fight, saying "[W]hat if I were to tell you that there was a camera that caught the incident and in that incident, somebody had a knife and cut the driver of that car enough to cause serious bodily injury to his body, what if I were to tell you that?" Officer Thivierge later asked, "[W]hat if that camera caught you doing it, what would you say to that?" And then, "[W]hat if I also told you that you were driving that car because cameras showed you getting in the...