dissenting:
The majority holds that since the suppressed evidence is to be used only for impeachment purposes it is not a substantial part of the prosecution’s proof. I disagree and dissent from the disposition of this case.
In People v. Rhodes, 729 P.2d 982 (Colo.1986), we addressed the voluntariness issue even though the trial court had not made a determination on the Miranda issue. Thus we did not know whether the statement would ultimately be used for impeachment purposes only or as a part of the case-in-chief. If the impeachment/case-in-chief distinction were as telling as the majority implies, it would have been more appropriate to remand and await a determination on the waiver issue.
I also note that in People v. Fish, 660 P.2d 505 (Colo.1983), we refused to reach an impeachment issue because the trial court jhad not yet ruled on it. If the impeachment/case-in-ehief distinction were determinative, as the majority suggests, we would not have indicated in Fish that we would have addressed the issue if the trial court had ruled upon it.
The evidence which the majority opinion characterizes as not substantial is an admission by the defendant to officer Ramirez that she knew the victim, that she emptied the gun — which held nine rounds— into him, and that she had given the gun to a friend of hers who had placed it in his car. My sense of the matter is that this evidence has probative value and would be significant if the defendant testifies.
Contrary to the majority, I would decide the issue which has been presented to us: whether the defendant’s statement to officer Ramirez was voluntary.
Alternatively, I would remand. The record indicates that the trial court held that the People had not proven the defendant had waived her Miranda rights by “clear and convincing evidence.” In Colorado v. Connelly, 479 U.S. -, 107 S.Ct. 515, 523, 93 L.Ed.2d 473 (1986), the Court held that the state need only prove a Miranda waiver by a preponderance of the evidence. If the trial court were to apply the correct standard, it may find a valid waiver. If it did, then the defendant’s statement, if voluntary, would be admissible in the case-in-chief.