Summary
holding that the failure to record an interview with a suspect does not violate that suspect's due process rights under the Colorado Constitution
Summary of this case from People v. CasiasOpinion
No. 89CA1126
Decided June 4, 1992. Rehearing Denied August 6, 1992. Certiorari Denied January 11, 1993 (92SC578).
Appeal from the District Court of the City and County of Denver Honorable Paul A. Markson, Jr., Judge.
Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Timothy R. Twining, Assistant Attorney General, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, for Defendant-Appellant.
Defendant, Elliot J. Raibon, appeals from the judgment of conviction entered on a jury verdict finding him guilty of first degree murder. We affirm.
The defendant was a member of the "Crips" street gang. On the day of the killing, defendant and four other Crips gang members were driving in a residential neighborhood looking for members of the rival "Bloods" gang.
Late that evening, defendant saw a young man on a bicycle who was wearing a red baseball cap. Because red is the color adopted by the Bloods street gang, defendant assumed that this young man was a member of that gang.
He was not. Rather, he was simply a young university student on his way home from visiting his girlfriend.
After passing the student, defendant jumped out of the car and ran towards him. According to the testimony by the prosecution's witnesses, defendant shot the victim several times. The victim, however, managed to get up and started wrestling with the defendant. During this time, he was pleading for help and telling defendant that he was not a gang member. When defendant managed to disentangle himself from the victim, he shot the victim in the head, producing a fatal wound.
I.
Defendant first asserts that the trial court erred by refusing to suppress statements made by him during an in-custody interrogation and by refusing to allow his parents to testify as to their recollection of the interrogation session. We disagree with both these contentions.
A.
Defendant argues that the investigators' failure to videotape or audiotape his initial interview violated his rights under the due process clause of the Colorado Constitution, Colo. Const. art. II, § 25. We disagree.
When defendant, then 17 years old, was arrested, he was taken to the police station for interrogation. After his parents were notified and arrived at the jail, the police began to interrogate him. No verbatim record of this interrogation session was made.
The sole support for defendant's claim that this failure violated his right to due process rests upon two Alaska Supreme Court decisions. Both of these decisions, Stephan v. State, 711 P.2d 1156 (Alaska 1985) and Mallott v. State, 608 P.2d 737 (Alaska 1980), declared that the failure to record an interrogation session constituted a violation of the due process clause of the Alaska Constitution.
However, this view is not generally accepted. Although some state legislatures have adopted statutes mandating the recording of such statements, the majority of state courts which have considered this issue in response to a claim of a state constitutional violation have specifically rejected the Alaska court's conclusion. See State v. Rhoades, 119 Idaho 594, 809 P.2d 455 (1991); Jimenez v. State, 105 Nev. 337, 775 P.2d 694 (1989); State v. Gorton, 149 Vt. 602, 548 A.2d 419 (1988); and Williams v. State, 522 So.2d 201 (Miss. 1988). In declining to interpret the Vermont Constitution as requiring that all interrogation sessions be recorded, the Vermont Supreme Court, in State v. Gorton, supra, concluded that, absent state legislation supplementing the rights set forth in the Vermont Constitution, it would not by "judicial fiat" prescribe such a requirement. We find that analysis appropriate here.
Further, while not considered in a constitutional context as such, this court has previously concluded that the prosecution is under no duty to reduce to writing statements made during the course of an interview with a witness. People v. Graham, 678 P.2d 1043 (Colo.App. 1983), cert. denied, 467 U.S. 1216, 104 S.Ct. 2660, 81 L.Ed.2d 366 (1984); People v. Garcia, 627 P.2d 255 (Colo.App. 1980).
We recognize that the recording of an interview with either a suspect or a witness, either by audiotape or otherwise, may remove some questions that may later arise with respect to the contents of that interview. For that reason, it may well be better investigative practice to make such a precise record of any interview as the circumstances may permit. We decline, however, to mold our particular view of better practice into a constitutional mandate which would restrict the actions of law enforcement agents in all cases.
B.
Defendant also argues that the trial court erred in not allowing his parents to impeach the detectives' testimony describing inculpatory statements made by defendant during his interrogation. He further contends that § 19-2-102(3)(c)(I), C.R.S. (1986 Repl. Vol. 8B), now codified as § 19-2-210(1), C.R.S. (1991 Cum. Supp.), tacitly requires that parents, irrespective of the rules of evidence, be permitted to testify with respect to all statements made by their child during an interrogation at which they were present. We reject both these arguments.
When defendant was initially arrested, the police notified his parents, and they were present during his later interrogation. The detectives testified that, on two occasions, defendant said that he "shot" the victim, but later corrected himself by saying that he had "shot at" the victim. The parents, on the other hand, did not recall defendant ever saying that he "shot" the victim, but rather, recalled him saying that, while he had a gun at the time of the confrontation with the victim, he had merely fired the gun in the air.
The People sought an in limine order that the parents could not refer to any statements made by the defendant during the interrogation session. While defendant complains that the trial court erred in granting the People's motion, the record shows that the trial court did not grant that motion, but rather refused to rule upon the issue in advance of the trial.
In addressing the motion, the court generally noted that, if the parents' testimony contradicted the detectives' testimony regarding defendant's alleged inculpatory statements, such testimony would be admissible as independent impeachment evidence. The trial court also suggested, however, that, if the parents sought to testify as to other statements made by the defendant, such statements, to be admissible, would have to fall within one of the exceptions to the hearsay rule. The trial court then specifically reserved its decision upon any particular testimony until such testimony was actually offered.
The record also demonstrates that the trial court did not, in fact, exclude any of the parents' testimony. Despite the fact that the trial court had remarked generally that any testimony contradictory to that of the detectives would be admissible, the defendant did not attempt to elicit any such testimony from the parents at trial. Hence, defendant cannot predicate a claim of error upon the exclusion of testimony when such testimony was neither offered nor rejected. See generally People v. Aragon, 653 P.2d 715 (Colo. 1982) (defendant cannot assert invalidity of statute if he does not offer evidence showing its applicability to him).
We also reject defendant's argument that § 19-2-210(1) allows a juvenile's parents to testify about everything said during an investigatory interrogation, irrespective of its inculpatory or exculpatory nature. This statute bars the admission of any statements made during a police interrogation unless the child's parents, guardian, legal custodian, or attorney are present when such are made. Its legislative purpose is to provide to the minor an opportunity to consult with a parent or guardian before deciding whether to assert or to waive his or her Fifth Amendment rights. See People in Interest of G.L., 631 P.2d 1118 (Colo. 1981); People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973). However, this statute does not render admissible testimony that is otherwise inadmissible under the rules of evidence.
II.
Defendant next argues that the trial court erred in refusing to require the prosecutor to grant immunity to one of the eyewitnesses. He also contends this error was compounded by the trial court's refusal to instruct the jurors that they could draw an adverse inference from the People's failure to call this witness and by its refusal to allow defense counsel during final argument to comment upon this witness' absence. We disagree.
A.
Our supreme court has expressly rejected the doctrine of court granted immunity. Harding v. People, 708 P.2d 1354 (Colo. 1985); see People v. Merrill, 816 P.2d 958 (Colo.App. 1991). Hence, the only immunity available to a witness is under § 13-90-118, C.R.S. (1987 Repl. Vol. 6A), which allows immunity to be granted by the trial court only upon the request of the People. And, the trial court possesses no authority to order the prosecutor to make such a request, nor does it have the authority, on its own, to grant immunity. Harding v. People, supra; People v. Merrill, supra.
Here, three of the four gang members who had accompanied defendant on the evening the victim was killed were granted immunity for their testimony. However, earlier that same evening, the fourth member had shot another individual and had been charged with aggravated assault. Because of the seriousness of this pending charge and the temporal proximity between that incident and the one at issue here, the People elected not to request that this witness be granted immunity.
Even if we assume that a trial court possesses the power to impose sanctions, including the dismissal of charges, in those instances in which a prosecutor, in an effort to distort the fact finding process, refuses to grant immunity to a witness who could provide vital, exculpatory evidence not available from any other source, such circumstances do not exist here.
First, defendant theorized that the non-immunized witness conspired with the immunized witnesses to shift the blame for the murder from him to defendant. Nothing within the record or within any other offer of proof, however, indicates that, if the non-immunized witness had testified, his testimony would have provided support for this theory or would have been beneficial to defendant in any other manner.
Further, there is no indication that the prosecutor attempted in any way to distort the fact finding process by refusing to grant immunity to this one witness. This non-immunized witness had been identified as the gunman in an earlier shooting of an innocent motorist. In contrast, none of the other three witnesses had been identified as direct participants in a violent crime. Thus, the decision by the prosecutor to grant immunity to three of the witnesses, but not to the fourth, was based upon a logical distinction between them.
B.
We also disagree with defendant's assertion that the trial court erred in refusing to instruct the jurors that they could draw an adverse inference from the People's failure to present the testimony of the fourth gang member.
An instruction with respect to a missing witness is appropriate only if the witness' absence is due solely to the actions of the People. People v. Bustos, 725 P.2d 1174 (Colo.App. 1986).
Here, the prosecutor did not prohibit the non-immunized witness from testifying. Rather, it was the witness' assertion of his Fifth Amendment rights, and not any action of the prosecutor, that prevented that testimony from being presented. And, this circumstance could not support an inference that the People had chosen not to have this witness testify because that testimony would be unfavorable to them. Under these circumstances, the trial court did not err in refusing to give an instruction of the nature requested.
C.
Defendant's further contention upon this subject is that the trial court erred in refusing to allow defendant to comment on the absence of the non-immunized witness in his closing argument. We conclude that, even if we assume, purely arguendo, that the trial court's broad prohibition could be considered error, it was harmless.
In determining whether an error in a criminal trial is harmless, the proper inquiry is whether the error substantially influenced the verdict or affected the fairness of the trial proceedings. Tevlin v. People, 715 P.2d 338 (Colo. 1986). If there is no reasonable possibility that the error contributed to the defendant's conviction or that it interfered with the trial proceedings, it must be disregarded. People v. Taylor, 197 Colo. 161, 591 P.2d 1017 (1979).
The absence of the witness here was relevant, if at all, only to the extent that that absence supported defendant's conspiracy theory. Counsel for the defense, however, gave a detailed presentation of this theory to the jury during his closing argument. That this witness had not testified during the trial was obvious to everyone and certainly did not need to be specifically noted. Consequently, the trial court's refusal to allow defendant to state the obvious could not have contributed to defendant's conviction, nor did it affect the fairness of the trial.
III.
Defendant's final contention is that he was improperly prohibited from impeaching one of the People's witnesses. According to defendant, he should have been allowed to refer to the witness' prior conviction of a juvenile offense, which would have been a felony had it been committed by an adult. However, this argument was fully considered and rejected in People v. D'Apice, 735 P.2d 882 (Colo.App. 1986). That opinion is dispositive of the defendant's contention here.
Judgment affirmed.
JUDGE MARQUEZ concurs.
JUDGE DUBOFSKY dissents.