Opinion
No. 81CA0152
Decided February 24, 1983. Rehearing Denied March 24, 1983. Certiorari Granted August 29, 1983.
Appeal from the District Court of Douglas County Honorable Charles A. Friedman, Judge.
J. D. MacFarlane, Attorney General, Charles B. Howe, Deputy Attorney General, Joel W. Cantrick, Special Assistant Attorney General, Maureen Phelan, Assistant Attorney General, for plaintiff-appellee.
Gerash Robinson, P.C., Scott H. Robinson, for defendant-appellant.
The defendant, Paul Briggs, was convicted by a jury of first degree murder. The primary question on appeal is whether the extrajudicial statements of Kirk R. Martin, his trial testimony, and the tape-recorded conversation between Martin and the defendant must all be suppressed as derivative evidence from the defendant's concededly illegally-obtained statements or whether the trial court correctly found sufficient attenuation to dissipate the taint. Error in the suppression rulings requires reversal and remand for a new trial.
On November 30, 1979, Harry Dewey's body was found by a hunter in the mountains between Sedalia and Deckers, Colorado. Death was caused by a gunshot wound to the head. The police knew when the homicide investigation began that Dewey had been involved in the burglary of a mountain cabin, and that Dewey might have been killed with a gun stolen in that burglary.
Special Crime Attack Team (SCAT) officers interviewed the defendant, who was Dewey's former roommate, on December 20. He was given Miranda warnings and told that he was suspected of burglary, theft receiving, and murder. At this interview, the defendant told the police that he knew that the property found in Dewey's apartment was stolen. SCAT officers reinterviewed him on January 4 and 5, 1980. The defendant was not readvised of his Miranda rights before these interviews. Based on a promise of immunity from prosecution for burglary of the mountain cabin, the defendant divulged, among other things, that Kirk Martin had taken some of the stolen property to Indiana.
Armed with this information from the defendant, the police interviewed Kirk Martin. Martin told SCAT officers he had taken some of the items to Indiana to sell to a Bill Neeley there. On January 8, SCAT officers flew to Indiana and learned from Neeley that Martin and a man referred to as "the mountain man" had formulated a plan to kill "Gator" (Dewey's nickname).
On January 9, the officers told Martin that they suspected him of the Dewey murder. Confronted with this information, Martin implicated the defendant in the murder by identifying him as "the mountain man," and the police offered immunity from prosecution to Martin if he were able to pass a polygraph test. After two polygraph tests given on January 10 and 11 registered deceptive responses, Martin agreed to be wired for sound and to engage the defendant in a recorded conversation. In the tape-recorded conversation of January 14, the defendant and Martin discussed the murder weapon and its hidden location in relation to the body.
It is uncontroverted that the statements made by the defendant during the January interviews by the officers were illegally obtained and that the trial court properly suppressed certain derivative evidence as "fruits of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); People v. Fisher, 657 P.2d 922 (1983). The defendant argues that all of Kirk Martin's statements to the police, his trial testimony, and the tape-recorded conversation must also be suppressed as having been derived from the defendant's illegally obtained statements. We agree.
The People bear the burden of establishing that the evidence obtained from Martin was not obtained through exploitation of the defendant's illegally obtained statements. See Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); People v. Lowe, 200 Colo. 470, 616 P.2d 118 (1980). The presence of an intervening circumstance is one factor to be considered in determining whether the causal connection between the illegality and the evidence sought to be admitted is sufficiently attenuated to remove the primary taint. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); People v. Gouker, 628 P.2d 149 (Colo.App. 1981).
Here, the police learned from the defendant's January statement, for the first time, that there was illegal activity in Indiana in connection with the burglary. By following this lead, they elicited from Martin the identity of Bill Neeley in Indiana. Neeley then implicated both Martin and the defendant in Dewey's murder. Using this incriminating information to confront Martin with a possible murder prosecution, the police extracted statements from Martin implicating defendant in the murder. Thus, the road from the defendant's January statements to Martin's statements implicating the defendant is direct and uninterrupted. See United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978).
The trial court reasoned, nevertheless, that Martin's decision to testify was in his own self-interest and was, therefore, an intervening independent act sufficient to attenuate the taint. People v. Saiz, 620 P.2d 15 (Colo. 1980). We do not agree with this analysis.
While it is true that an independent intervening event may decontaminate the evidence, People v. Saiz, supra, where a witness' decision to testify is induced by a grant of immunity from prosecution, the compelled testimony is not such an act of free will as to dissipate the taint arising from a prior illegality. See United States v. Scios, 590 F.2d 956 (D.C. Cir. 1978); People v. Lee, 630 P.2d 583 (Colo. 1981).
The People's arguments that the police had pursued an independent trail and that the normal course of investigation would ultimately have disclosed the incriminating evidence were not presented to the trial court, and, since these arguments require fact-findings, the issues have not been properly preserved for review.
The People also argue that this is a case for the application of the principles espoused in United States v. Williams, 622 F.2d 830 (5th Cir. 1980) and United States v. Brookins, 614 F.2d 1037 (5th Cir. 1980). While it may ultimately be the law of Colorado that the exclusionary rule is not to be applied when police action is reasonable, see People v. Quintero, 657 P.2d 948 (1983); People v. Eichelberger, 620 P.2d 1067 (Colo. 1980), we are unable to say here, as a matter of law, that the conduct of the police was reasonable investigation.
We conclude, therefore, that Martin's extrajudicial statements, his trial testimony, and his tape-recorded conversation with the defendant must be suppressed. In view of this conclusion, it is not necessary to reach the defendant's other arguments.
The judgment is reversed and the cause is remanded for a new trial.
JUDGE KIRSHBAUM concurs.
JUDGE VAN CISE dissents.