People v. Newton

517 P.3d 79

2022 COA 59

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

v.Erik Jamal NEWTON, Defendant-Appellant.

Court of Appeals No. 18CA1697

Colorado Court of Appeals, Division II.

Announced June 2, 2022

Rehearing Denied August 25, 2022

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meghan M. Morris, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE GROVE

¶ 1 Defendant, Erik Jamal Newton, appeals his convictions for first degree murder and evidence tampering. Because the officers who conducted Newton's custodial interview incorrectly led him to believe that he had no right to counsel at state expense during his interrogation, and because the admission of the confession that he made during that interrogation was not harmless error, we reverse his convictions and remand the case for a new trial.

I. Background

¶ 2 At trial, the People presented evidence from which the jury could find the following facts. In 2009, Newton met Onyx Lebron in high school, and the two became close friends. Newton got to know Lebron's family, including his mother and her boyfriend, Zachary Greenstreet. By 2015, however, Newton and Lebron had fallen out and Newton no longer had any contact with Lebron or his family.

¶ 3 Around that time, Newton began suffering from auditory hallucinations, during which he heard voices of Lebron, Greenstreet, and other members of the Lebron family. He reported this to mental health professionals and was given antipsychotic medication, but it did not help and caused side effects, so he stopped taking it. The voices continued to taunt and torment Newton, and he claimed that the only way to stop them was to shoot one of the people whose voices he heard.

¶ 4 On the night of June 17, 2016, Newton went to the Lebron home and, finding Greenstreet in the driveway, shot Greenstreet multiple times, killing him. Then he fled the scene and buried the gun in a nearby cemetery because he "didn't want to get caught."

¶ 5 At approximately 3 a.m., after Newton left the cemetery, an officer investigating a report of a suspicious person spotted him walking down the road and activated his overhead lights. Startled, Newton jumped a fence and tried to flee. Officers caught him a short time later, but he claimed that he had been at a party and denied knowing anything about the Greenstreet shooting. He was arrested for trespassing and then released from the county jail. Shortly after his release, however, Newton returned to the cemetery and dug up the gun. By that time, the authorities had linked him to Greenstreet's shooting, and, while executing a search warrant, they arrested him and found the gun in his jacket pocket.

¶ 6 Once again, Newton was brought to the county jail. This time, after the officers read him his Miranda rights, he was interrogated for several hours. He admitted both to killing Greenstreet and to hiding the gun in the cemetery.

¶ 7 Because they are dispositive of Newton's appeal, we address only two of his ten contentions: (1) whether the court should have granted his suppression motion; and (2) whether there was sufficient evidence to support his tampering conviction.¹ We agree that the trial court erred when it denied Newton's suppression motion and that, as a result, he is entitled to a new trial. We also conclude that Newton is eligible for retrial on the tampering charge because, even though that conviction depended heavily on his unconstitutionally obtained statements, the prosecution still presented sufficient evidence to support it.

II. Waiver of Right to Counsel

¶ 8 Newton contends that statements he made during his custodial interview should have been suppressed because the interrogating officers misled him about his right to have an attorney appointed before questioning. We agree and further conclude that the error was not harmless.

A. Standard of Review

¶ 9 A trial court's ruling on a suppression motion presents a mixed question of fact and law. People v. Webb , 2014 CO 36, ¶ 9, 325 P.3d 566 ; People v. Krueger , 2012 COA 80, ¶ 42, 296 P.3d 294. We defer to the court's findings of fact if competent evidence in the record supports them, and we review the court's legal conclusions de novo. Webb , ¶ 9. Whether a defendant understood his rights well enough to waive them is essentially a question of law. People v. Al-Yousif , 49 P.3d 1165, 1167 (Colo. 2002).

¶ 10 We review preserved errors of constitutional dimension for constitutional harmless error—that is, we will reverse unless the People show that the error was harmless beyond a reasonable doubt. Hagos v. People , 2012 CO 63, ¶ 11, 288 P.3d 116. An error is harmless beyond a reasonable doubt if there is no reasonable possibility that it contributed to the conviction. Margerum v. People , 2019 CO 100, ¶ 14, 454 P.3d 236.

B. Applicable Law

¶ 11 Police are required to advise criminal suspects of their constitutional rights before any custodial interrogation. Miranda v. Arizona , 384 U.S. 436, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A Miranda advisement is adequate as long as it conveys to the suspect a clear and understandable warning that he has a right to remain silent, that anything he says can be used against him in court, that he has a right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Id. at 479, 86 S.Ct. 1602.

¶ 12 If a defendant waives his rights and agrees to speak to police officers, the validity of that waiver depends on whether the waiver was (1) voluntary and (2) knowingly and intelligently made with full awareness of the nature of the right and the consequences of its abandonment. People v. Knedler , 2014 CO 28, ¶ 10, 329 P.3d 242.

¶ 13 When evaluating whether a Miranda waiver was knowing and intelligent, we consider the totality of the circumstances. Id. at ¶ 13. Although no "talismanic incantation" of Miranda rights is required to satisfy the strictures of that case, the appropriate inquiry concerning the adequacy of the advisements is whether these rights have reasonably been conveyed to the suspect. Sanchez v. People , 2014 CO 56, ¶ 12, 329 P.3d 253 (quoting Duckworth v. Eagan , 492 U.S. 195, 203, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989) ). The People bear the burden of proving the validity of the defendant's waiver. Knedler , ¶ 10.

C. Additional Facts

¶ 14 Officers Vernon Woodin and Elias Alberti brought Newton to the police station for questioning shortly after arresting him. The following facts are derived from our review of the video recording of that discussion. Woodin gave Newton a written list of his Miranda rights and read them out loud. He correctly told Newton that he had a right to an attorney who could be present during questioning, and that "[i]f you cannot afford to hire an attorney, one will be appointed to represent you before questioning if you wish." Newton confirmed that he had read and understood his rights, and then he initialed the form next to each of them. Before signing the bottom of the form, however, he made clear that his understanding was less than complete:

WOODIN: Ok. Having these rights in mind, do you wish to talk with me now?

NEWTON: Um, well I do wish to talk to you and I, I can't afford a lawyer, and an attorney, when I go to court, wouldn't he be there anyway?

WOODIN: So, the, an attorney would be appointed after um, the only way that you would get an attorney now is if you were able to pay for one.

NEWTON: Right.

WOODIN: Ok?

NEWTON: Right I can't, uh, can't.

WOODIN: Ok.

NEWTON: So ...

ALBERTI: So the que-, the question is not really whether you can afford [an] attorney or not.

NEWTON: Mm-hmmm.

ALBERTI: Ok? The question is, with these rights in mind do you wish to talk to us now?

NEWTON: Oh, yeah, so it's fine.

ALBERTI: Ok.

WOODIN: Ok, so if you do, if you want to talk with me, and you agree to talk with me without your attorney, I'm gonna have you sign your name right there ok?

NEWTON: Ok.

¶ 15 After hearing from Woodin that the "only way" to have an attorney present for questioning would be to hire one, and after telling the officers that he could not afford an attorney, Newton then signed his name to the Miranda waiver.

¶ 16 Alberti, apparently realizing his partner's misstatement, then attempted to fix it by "clarify[ing]" that while Newton had a right to representation during the interrogation, if he "want[ed] to talk to [the officers] without your attorney present, then we can do that now." But when Newton asked once again about whether he would have to pay for an attorney during the interview, Alberti sidestepped the question:

NEWTON: And I'd have to pay for that one, right?

ALBERTI: Well what I'm trying to say is, is that you have a right to have an attorney present, so if you're saying I want to talk to you, but I only want to talk to you with my attorney present, then that's your right.

NEWTON: Oh, (inaudible).

ALBERTI: If you're saying, I'll talk to ya’ and I don't really care whether my attorney's present or not, that's the second part. Does that make sense?

NEWTON: Yes, yeah, I just don't have an attorney.

ALBERTI: Ok. It's not whether you have one or not, you're, I think you're confused.

NEWTON: Oh.

ALBERTI: It's not whether you have, we know you don't have one, because there's not one sitting here.

NEWTON: (Laughs) Yeah, yeah.

ALBERTI: The right is that you, you can have an attorney sitting here if you want one. So my question is to you, just so we're on the same page, are you willing to talk to us without an attorney present or would you like to have an attorney present before you answer any questions?

NEWTON: Um, (long pause) no I think it's fine.

ALBERTI: Ok. Do you understand the two differences that we're talking about, though, right?

NEWTON: Yeah.

ALBERTI: Ok.

¶ 17 Once this discussion about Newton's Miranda rights concluded, Newton...