People v. Romero

953 P.2d 550, 1998 Colo. J. C.A.R. 393, 1998 Colo. LEXIS 109, 1998 WL 27586
CourtSupreme Court of Colorado
DecidedJanuary 26, 1998
DocketNo. 97SA311
StatusPublished
Cited by55 cases

This text of 953 P.2d 550 (People v. Romero) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Romero, 953 P.2d 550, 1998 Colo. J. C.A.R. 393, 1998 Colo. LEXIS 109, 1998 WL 27586 (Colo. 1998).

Opinions

Justice HOBBS

delivered the Opinion of the Court.

In this interlocutory appeal under C.A.R. 4.1 and section 16-12-102(2), 6 C.R.S, (1997), the prosecution challenges an order of the Alamosa County District Court suppressing statements the defendant Mario Romero (Romero) made during custodial interrogation. The district court determined that police officers had delivered a proper advisement under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966), and had secured a written waiver of rights but improperly continued to question Romero after he requested the assistance of legal counsel within the meaning of Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). We agree with the district court that oral and written statements Romero made in response to police questions after he requested counsel must be suppressed.

I.

On March 27, 1997, Romero was at home in Alamosa drinking large amounts of “Ken-[552]*552tacky Deluxe” — “three to six pints,” he said — with his Mend, Jesse Ortega (Ortega). Romero’s pregnant wife and his children also were at home. A vehicle unexpectedly arrived in front of the house. Several persons exited and came towards the house' holding bottles and bats. From previous confrontations, Romero recognized them as members of the “Eastside Gang.” He took a few minutes to retrieve a rifle from under the floorboards of the house and then apparently fired at the car from inside the house. A shot struck and killed Joe Cervantes who was sitting in the front passenger seat.

Romero fled the San Luis Valley and was arrested in Adams County. Officers Rick Needham (Needham). and Shawn Woods of the Alamosa Police Department interrogated Romero at the Adams County jail on April 1, 1997, after Needham read Romero his.Miranda rights and Romero had executed a written waiver. The record contains a tape recording of the interrogation, a fifty-four page transcript of the interrogation, and a suppression hearing transcript.

The first page of the interrogation transcript contains Needham’s advisement to Romero.1 Romero answered in response that he understood his rights and then signed the waiver form. Needham commenced the' interrogation with open-ended questions about the circumstances of the shooting. Needham promptly turned to specific questions regarding Romero’s intent and potential defenses:

Needham: So what were you thinking when that gun went off?
Romero: I don’t know, I, I, I just don’t know man, I was just [expletive], I was in fear man, for my life because they’re, my kids were there, Vida’s pregnant from me, ya know, I mean....
Needham: So you thought you were defending yourself when you shot at the car?
Romero: Yea. Cause I, ya know, I’m not gunna lie man, ya know, I mean I should wait, and I should talk to a lawyer and this and that and ya know because I do want to go to trial on this.

(Emphasis added.) Needham quickly continued to probe Romero’s claim of self-defense: Needham: Did you think you’d have a valid point?

Romero proceeded thereafter to make potentially damaging statements about his prior contacts with the “gang members” and events surrounding the shooting, all the while attempting to justify himself to the interrogating officer. For example, he proceeded to state that he, Ortega, and a third person several nights before had gone to the house of the other persons — to say they wanted no trouble, he claimed — but left when they “started all panicking.” He also said that he and Ortega discussed shooting the gang members during the three to four minutes it took to retrieve the rifle.

On page thirty-five of the transcript, when Romero again referenced legal counsel, Needham prolonged the questioning by indicating that Romero had already “made the choice” not to have a lawyer during questioning and holding out the possibility of a charge of less than first degree murder for Romero if he would continue talking without the assistance of counsel:

Romero: I still won’t be, I mean, I mean, look I already [expletive], see I don’t even understand this man, cause....
Needham: Okay, what don’t you understand?
Romero: People telling me that I shouldn’t [expletive] talk to you guys.
Needham: Well I think by talking to us....
Romero: That I should talk to a lawyer first. . . .
Needham: Well, you made the choice.
[553]*553Romero: I mean that I don’t, ya know....
Needham: Right now, when we walked in here, we were looking at 1st degree murder, okay, now I’m not so sure I’m looking at 1st degree murder. I was looking at charging just you with 1st degree murder, hut now I’m thinking Jesse’s got a lot more involvement than Jesse’s been telling me. Okay. I’m thinking maybe second or something else. Okay. But that’s the DA.

(Emphasis added.) The interrogation lasted about two hours, including the time it took Romero to make a written statement during a break in the questioning. Three days later, on April 4,1997, the prosecution charged Romero with murder in the first degree and other offenses2 and sought to use his oral and written statements without restriction at trial.

At the suppression hearing, in reference to Romero’s first statement, “I should talk to a lawyer,” on the third page of the transcript, Needham testified that, “I did not at that point or any subsequent point or any prior point believe that he wanted a lawyer. I believe he wanted to talk to me.”

The district court used a totality of the circumstances analysis in finding and concluding that,

Mr. Romero’s statement was an unambiguous request for an attorney. It was made shortly after the questioning began with his rights firmly in mind. He had declared his actions were in self-defense. Initially the detective asked open-ended questions that let the defendant talk. The detective then asked two specific questions seeking to obtain evidence of mens rea. It is at this point that the defendant states, “I should get an attorney.”

Accordingly, the district court suppressed all oral and written statements which Romero made after requesting an attorney but determined that those statements could be used on cross-examination in the event that Romero testifies at trial.

The prosecution contends, under Davis, that Romero’s statement was not a sufficiently clear expression of his desire for legal counsel. We disagree and uphold the district court’s suppression order.

II.

Under the Fifth Amendment to the United States Constitution,3 we uphold the district court’s findings and conclusions that Romero sufficiently clearly invoked his right to an attorney during questioning and that custodial statements he made subsequently during the interrogation must be suppressed.

A.

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Bluebook (online)
953 P.2d 550, 1998 Colo. J. C.A.R. 393, 1998 Colo. LEXIS 109, 1998 WL 27586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-romero-colo-1998.