People v. Perez

486 P.3d 305

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

v.Marcus PEREZ, Defendant-Appellant.

Court of Appeals No. 15CA0546

Colorado Court of Appeals, Division I.

Announced April 4, 2019

Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Laura E. Schwartz, Alternate Defense Counsel, Esteban A. Martinez, Alternate Defense Counsel, Longmont, Colorado, for Defendant-Appellant

Opinion by JUDGE TOW

¶1 Defendant, Marcus Perez, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree assault on a peace officer and four counts of possession of a dangerous weapon by a previous offender. We affirm in part, reverse in part, and remand with directions.

I. Background

¶2 In February 2014, police officers conducted a traffic stop of an SUV for various traffic infractions. The officers noticed that the occupants were acting suspiciously, appeared more nervous than the officers would have expected, and may have been attempting to conceal something. An officer contacted the passenger (later identified as Perez), who provided a name and date of birth. When the officer found no record of such an individual, he asked Perez to step out of the car. Perez complied, but immediately started running.

¶3 Perez ran across a very busy street through rush-hour traffic, and through residential and commercial areas, while the officers pursued him. Eventually, officers caught up to him in a residential backyard. At this point, additional police officers arrived to assist. Perez took a fighting stance and began to resist the officers’ efforts to take him into custody. During the fracas, Perez broke an officer's nose. Another officer injured himself during the chase.

¶4 After handcuffing Perez, an officer frisked him and found two shotgun shells in his pocket. Before advising him of his Miranda rights, the officer asked Perez where the gun was. Perez responded that he had thrown it away. When asked where he had thrown it, Perez's response was unintelligible. The officer did not pursue the inquiry further.

¶5 At some point, other officers searched the car, though it is unclear from the record when the search occurred in relation to Perez's statement. During the search, the officers found a short shotgun¹ between the center console and the passenger seat.

¶6 The prosecution later charged Perez with two counts of second degree assault on a peace officer and eight counts of possession of a weapon by a previous offender (POWPO). All eight POWPO charges involved the same short shotgun; there were two separate charges (one alleging possession of a firearm, and one alleging possession of a "dangerous weapon"² ) connected to each of four prior felony convictions. Before trial, the prosecution dismissed one of the second degree assault charges.

¶7 A jury convicted Perez of the remaining assault charge and the four POWPO charges involving a dangerous weapon. At sentencing, Perez admitted that he had three prior felony convictions, and the parties stipulated that Perez would receive a twenty-four-year prison sentence in this case, a concurrent six-year prison sentence in a separate case, and a third case would be dismissed in its entirety. At the sentencing hearing, the court sentenced Perez to twenty-four years in prison for second degree assault and four years in prison for each of Perez's four POWPO counts. The remaining POWPO charges were dismissed. The court ordered that all of the sentences would run concurrently.

II. Miranda Violation

¶8 Perez first contends that the trial court erred by denying his motion to suppress incriminating statements he made after his arrest and before police advised him of his Miranda rights. We conclude that, although admission of the statement was erroneous, reversal is not required.

A. Standard of Review

¶9 Whether custodial interrogation has occurred in violation of Miranda is a mixed question of fact and law. People v. Barraza , 2013 CO 20, ¶ 15, 298 P.3d 922. We defer to the trial court's findings of historical fact and will not overturn them if they are supported by competent evidence in the record. Id. We then review de novo the ultimate legal effect of those facts, such as whether the defendant was in custody, People v. Matheny , 46 P.3d 453, 459 (Colo. 2002), or whether a particular inquiry constituted interrogation, People v. Gonzales , 987 P.2d 239, 242 (Colo. 1999). Although no Colorado appellate court has clearly stated that whether the public safety exception applies is a legal determination, other courts have done so. See United States v. Liddell , 517 F.3d 1007, 1009 (8th Cir. 2008). We agree and review the issue de novo.

¶10 "When reviewing a trial court's suppression ruling, appellate courts must only consider evidence presented at the suppression hearing." People v. Bryant , 2018 COA 53, ¶ 19, 428 P.3d 669.

B. Applicable Law

¶11 The Fifth Amendment of the United States Constitution provides that no person shall be compelled to be a witness against himself in a criminal case. Police must warn a person of his rights against self-incrimination when he is subjected to custodial interrogation. See Miranda v. Arizona , 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ; People v. Theander , 2013 CO 15, ¶ 20, 295 P.3d 960. Absent such warnings, the prosecution generally cannot introduce in its case-in-chief any statement obtained from a suspect as a result of custodial interrogation. Matheny , 46 P.3d at 462.

¶12 However, in some circumstances, police may question a suspect in custody who has not yet received a Miranda warning about the presence of weapons that could immediately endanger them or members of the public. See New York v. Quarles , 467 U.S. 649, 657-58, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) ; see also People v. Mullins , 188 Colo. 23, 27, 532 P.2d 733, 735 (1975). This exception to Miranda , called the public safety exception, applies most readily in the context of immediate, on-scene investigations of a crime. See People v. Requejo , 919 P.2d 874, 879 (Colo. App. 1996). The determinative question is whether the officer's questioning related to an objectively reasonable need to protect the police or the public from immediate danger associated with a weapon. See Quarles , 467 U.S. at 655, 104 S.Ct. 2626 ; People v. Ingram , 984 P.2d 597, 605 (Colo. 1999).

¶13 In Quarles , for example, a police officer pursued a rape suspect who had been described by the victim as carrying a gun. 467 U.S. at 651-52, 104 S.Ct. 2626. The officer chased the suspect through a grocery store, ultimately apprehending him in the rear of the store. Id. at 652, 104 S.Ct. 2626. When the officer frisked the suspect, he discovered that the defendant was wearing an empty shoulder holster. Id. After handcuffing him, but before advising him of his Miranda rights, the officer asked the suspect where the gun was located, and the suspect told him. Id.

¶14 The defendant's statements about the gun were excluded at trial because they were elicited before he had received a Miranda warning. The Supreme Court ultimately held that the initial statement indicating the location of the gun was admissible under a public safety exception, despite the officer failing to advise the defendant of his Miranda rights. Id. at 657-58, 104 S.Ct. 2626. It explained, "the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." Id. at 657, 104 S.Ct. 2626.

C. Application

¶15 Here, there is no dispute that Perez was in custody when the officer asked about the gun. Nor do the People argue that the inquiry about the gun was not interrogation. We thus turn to the applicability of the public safety exception.

¶16 The public safety exception has been discussed sparingly in Colorado case law. In Requejo , officers were responding to a bar fight during which someone had been stabbed. 919 P.2d at 878. Within two minutes of receiving the dispatch and a description of the suspect's vehicle leaving the scene, officers located and stopped the vehicle. Id. An officer approached the vehicle and asked where the knife was. Id. A division of this court held that because the officer had a legitimate concern for her safety, the inquiry was within the scope of the public safety exception. Id.

¶17 In People v. Janis , a division of this court held that the public safety exception applied when officers responded to a report of a stabbing, encountered the defendant shortly thereafter near the location of the stabbing, had reason to believe that the defendant was involved in the crime, and then asked the defendant, "Do you have any weapons on you?" 2016 COA 69, ¶ 56, 441 P.3d 1, rev'd on other grounds , 2018 CO 89, 429 P.3d 1198.

¶18 In People v. Wakefield , a division of this court held that the public safety exception applied when officers responded to a report of a shooting, found the defendant at the scene of the crime, and asked the defendant about the extent of his injuries and whether there was anyone else in the residence. 2018 COA 37, ¶ 57, 428 P.3d 639. There, "the officers, having just arrived on the scene, had a legitimate concern that there could be other armed suspects or injured victims in the vicinity." Id.

¶19 In Quarles , Requejo , Janis , and Wakefield , the very nature of the dispatch informed the officers that a weapon might be present; in each case, someone had already reported to the police that a weapon was involved. Here, in contrast, when the officer first contacted Perez, he had no information suggesting that Perez was armed. Nor was the officer responding to a report of a crime involving a weapon. Only after the officer found shotgun shells in Perez's pocket did the officer become concerned that Perez may have disposed of a shotgun while being chased through residential and commercial areas.

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