Opinion
No. 74-522
Decided August 26, 1975. Rehearing denied September 16, 1975. Certiorari granted December 15, 1975.
From conviction by jury of second degree kidnapping and menacing with a deadly weapon, defendant appealed challenging the use of his confession, and the refusal to give certain jury instruction.
Reversed
1. CRIMINAL LAW — Confessions — Voluntariness — Totality of Circumstances — Considered. To be admissible a confession must be free and voluntary, and in assessing the voluntariness of a statement, the totality of the facts and circumstances of the case and also the conduct of the accused must be considered and examined.
2. Confessions — Totality of Circumstances — Police Officer's Advice — Statement of Defendant — Not Involuntary. Where defendant in criminal case challenged the admissibility of his confession on the basis that it was involuntary, looking to the totality of the circumstances, including the fact that the Miranda warnings were given, the length and time of the interrogation, and the lack of any suggestion of brutality or third-degree tactics, it must be concluded that the police officer's advice to the defendant that it would be better if he cooperated did not make the statement the product of an improper inducement, thereby rendering it involuntary; and thus the defendant's statements were given freely and voluntarily and were properly admitted into evidence.
3. Confessions — Instruction on Weight — Must Be Given — Not Requested. Unless a defendant in a criminal case specifically requests that such an instruction not be given, the trial court is required to instruct the jury on the weight to be given a defendant's confession, and that is so even though the defendant failed to request such an instruction.
4. Crimes — Lesser Included Offenses — False Imprisonment — Second Degree Kidnapping — Defendant — Entitled to Instruction. False imprisonment is a lesser-included offense of second degree kidnapping, and defendant charged with attempted second degree kidnapping is entitled to an appropriate instruction thereon.
Appeal from the District Court of Weld County, Honorable Robert A. Behrman, Judge.
John D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Solicitor General, E. Ronald Beeks, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Carol L. Gerstl, Deputy State Public Defender, defendant-appellant.
Defendant, Baltazar Arispe, was convicted by a jury of attempted second degree kidnapping and menacing with a deadly weapon and sentenced to serve specified concurrent sentences. Defendant appeals. We reverse.
Defendant first urges reversal on the grounds that the confession obtained from him was involuntary and that thus the trial court erred by allowing its admission into evidence. We disagree.
At a hearing on defendant's motion to suppress his confession, only one of the interrogating officers, Officer Raymond Warr, testified. Officer Warr testified that on September 14, 1974, defendant was taken into custody at approximately 8:00 p.m. by the Weld County Sheriff's Department and read his Miranda rights. The officer testified that defendant, who is of Spanish descent, did not speak English as well as he and that he wrote defendant's answers that he understood his rights on the form. The defendant indicated his lack of understanding of the word "indigent," which the officer explained to him.
Officer Warr then began his interrogation of the defendant regarding the offenses for which he was subsequently charged. His testimony indicated that this questioning proceeded as follows: He interrogated the defendant for approximately 30 minutes during which time defendant denied any involvement in the incident. He then called in another "more experienced" officer, Sgt. Andrews, to assist in the interrogation because he "couldn't get him [defendant] to cooperate with some of the questions." He told Sgt. Andrews that he didn't believe defendant was telling the truth and that he wanted to get the straight story, but the record does not indicate whether defendant heard those remarks. Sgt. Andrews proceeded to interrogate the defendant, and for approximately ten minutes defendant did not change his story.
Then, however, Sgt. Andrews told defendant that it would be better if he cooperated and asked defendant "if he would mind if we talked to his wife." At this juncture defendant's demeanor changed and, in Officer Warr's words, "all of a sudden he got to where he was changing his story." Defendant then admitted that he was at the victim's house, that he had asked to use her phone, that she did go outside with him, and that he had a spoon at her throat instead of a knife.
Warr did not, during the interrogation, take down defendant's statement regarding his involvement in the incident, but summarized defendant's answers the following morning. The statement was not signed by defendant, and there was no indication whether defendant ever saw the statement. The trial court denied defendant's motion to suppress the confession, and at the trial Sgt. Andrews testified to the statements made by the defendant.
[1] The standards governing the admissibility of a statement or confession made by one accused of a crime have been set out in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. "To be admissible, a confession must be free and voluntary." In assessing the voluntariness of a statement, we must consider and examine the totality of the facts and circumstances of the case, and also the conduct of the accused. People v. Duncan, 178 Colo. 314, 497 P.2d 1029. The trial court's determination of the voluntariness of a confession will be affirmed when supported by competent evidence in the record. People v. Pineda, 182 Colo. 385, 513 P.2d 452; People v. Medina, 180 Colo. 56, 501 P.2d 1332.
Prior to the admission of the confession into evidence, the trial court conducted an in camera hearing on the question of voluntariness. After evaluating all of the evidence, the trial court specifically found the confession to be voluntary and admissible in evidence. The totality of the circumstances here convinces us the defendant's statements were given freely and voluntarily and we affirm the trial court's ruling as to their admissibility.
Although the specific findings of the court are not included in the record, appellant concedes that the court at the suppression hearing did make a specific finding that the confession was voluntary.
[2] Relying upon People v. Pineda, supra, defendant claims that the statements were rendered involuntary because the interrogating officer told him that it would be better if he cooperated. We disagree. Looking at the totality of the circumstances ( Miranda warnings given, the length and time of the interrogating, the lack of any suggestion of brutality or third-degree tactics), the advice to the defendant that it would be better if he cooperated did not make the statement the product of an improper inducement, thus rendering it involuntary.
In People v. York, 189 Colo. 16, 537 P.2d 294, the Colorado Supreme Court held that a detective's urgings to the defendant to tell the truth, cooperate, and level with him, and that such would be noted in his report and reach the proper people, did not render the defendant's statements involuntary as being the product of an implied threat or promise of leniency. Here, the urging of Officer Warr did not go as far as did the urgings of the detective in York, supra. Nor did the fact that the interrogating officer asked defendant if he would mind if they talked to his wife render the statements involuntary. The police are precluded neither from attempting to verify a suspect's story nor from telling the suspect they plan to do so.
Defendant also contends that error occurred as a result of the failure of the trial court to instruct the jury on the weight to be accorded defendant's confession. The People urge that since defendant did not request such an instruction no error can be assigned. We agree with the defendant that even in the absence of a request the judge should instruct the jury on the weight to be accorded defendant's confession.
It should be emphasized that the issue here is not the appropriateness of the customarily given instruction on confessions, but rather whether it was error for the trial judge to fail to give a specific instruction sua sponte when the voluntariness of a confession was in issue.
The Supreme Court, in People v. Shearer, 181 Colo. 237, 508 P.2d 1249, stated:
"'The court having admitted the confession in evidence, it is for the jury to determine the weight to which it is entitled. The jury may accord to it great weight, little weight, or no weight at all, depending on the circumstances surrounding the making of the confession.'
"If the failure to properly instruct the jury had been properly raised at the time of trial or in a motion for a new trial or on appeal, we may well have reversed and ordered a new trial." (emphasis supplied)
[3] Shearer, supra, involved a review proceeding under Crim. P. 35(b) where errors are limited to those of constitutional magnitude. Our review is not so constrained. Crim. P. 52(b). We view Shearer as authority for a reversal where there is a failure of the trial court to instruct the jury properly on the weight to be given a confession. Hence, we hold that, unless a defendant specifically requests that such an instruction not be given, the trial court is required to instruct the jury on the weight to be given a confession.
General instructions to the jurors that they are the sole judges of the credibility of the evidence are insufficient. The defendant may, as in this case, never take the witness stand, and a special instruction is essential to inform the jurors of their role in weighing the credibility of a confession.
The trial judge has a duty to instruct the jury properly on the weight to be given a confession, even in the absence of a request by the defendant, just as he has a duty to conduct a hearing when it becomes evident to him that the voluntariness of a confession is in issue, even in the absence of an express objection to the admission of the confession. Whitman v. People, 170 Colo. 189, 460 P.2d 767. Accordingly, the judgment of conviction must be reversed.
To avoid error on retrial, we consider the only remaining allegation of error. Defendant contends that since the jury was instructed to return a verdict on attempted second degree kidnapping, the trial court erred by refusing his request to instruct the jury that false imprisonment is a lesser-included offense of the crime of second degree kidnapping. We agree.
The pertinent statutes state, as follows:
"Any person who forcibly or otherwise seizes and carries any person from one place to another without his consent and without lawful justification or who takes, entices, or decoys away, any child not his own and under the age of eighteen years, with intent to keep or conceal the child from his parent or guardian, commits second degree kidnapping . . . . " (emphasis supplied) Section 18-3-302, C.R.S. 1973. See § 18-2-101, C.R.S. 1973, for definition of attempt.
"Any person who intentionally confines or detains another without the other's consent and without proper legal authority commits false imprisonment . . . . " Section 18-3-303, C.R.S. 1973.
The People, in their brief to this court, conceded that the first alternative method of committing second degree kidnapping "probably does include false imprisonment," but relied instead on distinctions between the elements of false imprisonment and the second alternative method of committing second degree kidnapping. The argument is without merit, however, because the second alternative method is inapplicable in this case since the victim was over 18 years of age and the jury was not instructed on this theory.
In People v. Rivera, 186 Colo. 24, 525 P.2d 431, the "statutory test" was adopted for determining whether a greater offense includes a lesser offense. By this test, the statute which set forth the constituent elements of each crime must be compared.
"'[T]he greater offense includes a lesser offense when the establishment of the essential elements of the greater necessarily establishes all of the elements required to prove the lesser . . . . ' "
Applying this test to the above statutes, we conclude that second degree kidnapping necessarily includes all of the elements of false imprisonment. Although second degree kidnapping requires the actor to "seize and carry" and no specific requirement of "confine and detain" is present, proof of second degree kidnapping of necessity also proves false imprisonment since a victim must be unlawfully held against his or her will, i.e., confined and detained, in order to be seized and carried away. People v. Johnson, 183 Colo. 219, 516 P.2d 116.
This conclusion is buttressed by the pertinent legislative history of these two criminal statutes. The comment in the Legislative Council Committee Report dealing with kidnapping and false imprisonment states: "Simple kidnapping is aggravated false imprisonment. It requires a confinement or restraint without consent and without proper legal authority plus some aggravating factor, other than an intent to extort a ransom." Colorado Legislative Council, Research Publication No. 98, November 1964.
The argument was also advanced by the People that false imprisonment is not a lesser-included offense of the crime charged, to wit, attempted second degree kidnapping. While this argument might have merit, the defendant's tendered instruction which set forth the proposition that false imprisonment is a lesser-included offense of second degree kidnapping was necessarily modified by the court's instructions on attempt, which were given separately from the instruction on kidnapping.
[4] Thus, here, false imprisonment is a lesser-included offense of second degree kidnapping and defendant is entitled on retrial to such an instruction under the principles announced in Rivera, supra, and contained in § 18-1-408(6), C.R.S. 1973.
The judgment is reversed and the cause remanded for a new trial in accordance with the views expressed herein.
JUDGE COYTE and JUDGE ENOCH concur.