People v. in the Interest of J.D.

Justice MARTINEZ

dissenting:

The majority reverses the trial court for deciding that the juvenile, who was in detention for another matter, was in custody for purposes of Miranda. The majority faults the trial court for finding that promises, threats, and confrontation with evidence of *773guilt contribute to a determination that there was additional pressure exerted to detain the juvenile. See maj. op. at 770, 772. The majority holds that “the voluntary telephone statement of a juvenile” should not be suppressed. Id. at 765. I believe that the trial court understood that a juvenile questioned by telephone while in detention for another matter is generally not in custody for purposes of Miranda. Because the trial court considered the appropriate factors in arriving at the conclusion that the speakerphone interrogation of this juvenile was custodial, I would affirm. Accordingly, I respectfully dissent.

I.

Among the factors that were significant to the trial court were the physical surroundings of the juvenile during the interrogation, the extent to which she was confronted with evidence of her guilt, and the additional pressures exerted to detain her while she was persuaded to confess. That is, the interrogating detective promised her that he would file no charges, or minimal charges, against her for the robbery and that he would not file unrelated charges. He told her that other suspects had given statements and that he might offer them the same deal to implicate her. He threatened her with being returned to Colorado and sent to prison as an adult. Her probation officer, who participated from the juvenile’s end of the speakerphone conversation, assisted the detective by explaining the threats and promises, and by initiating the threat that she would be charged as an adult. Accordingly, I begin by relating some of the record support for the trial court’s findings and conclusions of law. Subsequently, I will explain how the trial court considered these facts, applied the totality of circumstances test and the Denison qualification of that test, and concluded that this particular juvenile was in Miranda custody.

A.

Fort Morgan police officers detained J.D., a juvenile, on October 28, 1998, for an unrelated incident at a motel and as a runaway from Nevada. While J.D. was in detention, Detective Kuretich confronted her in person and asked if she knew anything about a robbery in Colorado.1 After J.D. denied any involvement in the robbery, Kuretich confronted her with photographs from the robbery pointing out that one of the females in the photographs looked similar to her. He made clear that if his investigation concluded that she was a suspect, he would arrest and charge her accordingly. He also told her that she would remain under suspicion regardless of her transfer to Nevada. J.D. steadfastly refused to talk, so Kuretich gave her his name and telephone number, in case she changed her mind.

From the detention center in Nevada, J.D. called Kuretich’s office and left a message for him to return her call. Kuretich later returned her call. Kuretich testified at the suppression hearing that during this initial phone contact, she was in “a large room” where “several girls of her own age were present.” Kuretich told her to arrange to have “someone she trusted” with her for the interview.

Kuretich then called the facility again on the same day. Arrangements had been made for June Foster, a detention officer, and Steve Hagen, J.D.’s probation officer, to be present during an interview through a speakerphone. The call took place in a different room, separate from the general population at the detention center.

After Foster answered the call, Kuretich spoke with Hagen. The probation officer identified himself, told Kuretich that he was on the speakerphone and that J.D. was present. Kuretich said hello to J.D. and then explained to Hagen everything he and J.D. discussed during their encounters up to that point. Kuretich explained that he told J.D. that she had some charges pending when he tried to question her during her detention in Colorado. He told Hagen that he “informed [J.D.] that she was possibly a suspect as an accomplice to a robbery.”

*774He also explained to Hagen that he had already told J.D. that if she cooperated, “I would do what I can to dismiss the charges which occurred at the motel as well as possibly work a deal out with the District Attorney’s office in reference to her involvement in the robbery.” Finally, he discussed a subsequent conversation with the deputy district attorney. He claimed that the D.A. felt that they could work something out “based on what information that [J.D.] was to give us.”

After this background introduction with Hagen, Kuretich again addressed J.D. At the outset, J.D. was concerned about whether any of the other suspects would find out that she spoke with Kuretich. Kuretich assured her that he would not use the telephone recording when dealing with the other suspects. The attempt to persuade her to give a statement continued, with assistance from the probation officer, as follows:

Kuretich: Okay. Well J.D., what do you want to do? Do you want to give me a statement on how you were involved so we can try to work something out?
J.D.: I don’t want them to know, I was telling you this.
Kuretich: Okay well they’re not here and you’re in Nevada and I’m definitely going to question them further. I haven’t told them that I’ve talked to you already. They don’t know that you talked to me a couple days ago.
J.D.: So you’re not going to say anything about me? (inaudible)
Kuretich: Well I don’t plan to.
J.D.: Okay it’s not going to show up in court that I said anything (inaudible) there.
Kuretich: That, I can’t promise you that. I mean all I’m trying to do is work a deal out with you. So you don’t have to go to prison for a robbery charge.
Hagen: Very serious, you could (inaudible).
J.D.: I know, but I’m not gonna get shot. ⅜ ⅜ *
Hagen: (inaudible) in the state of Colorado she can be certified as an adult.
Kuretich: That’s correct. And that’s what the district attorney mentioned this morning, is that part of the deal that we’ve worked out is if any charges were filed, we wouldn’t charge her as an adult, but probably as a juvenile, which would make a big difference on how much time you serve in jail, if any at all.
Hagen: What it sounds like to me here, is with your cooperation they won’t go after you with full charges. If you don’t cooperate with them they might go after you with all the charges.

Later, Kuretich suggested that J.D. may not have to return to Colorado if she confessed, and that, if she did not confess the others involved would be offered the same deal and would likely take it:

Kuretich: And I, part of helping you out is to try to keep you from ... having to testify ... And if I end up not charging you then you’re not gonna have to come back here.
J.D.: And what if you come (inaudible) talk to them [other suspects].
Kuretich: There are several people who have talked already. You’re not just the only one.
* * ⅜
Kuretich: Let me put it this way [J.D.], when I bring them in here and I’m gonna, I may offer them the same kind of deal. Let me know about the robbery and who was involved and in turn I’m gonna give you this kind of deal. Which means that they may be not going to jail but they may finger you, and then, you’re gonna have to go to jail.
J.D.: (inaudible) from me because I wasn’t ever inside the store.
Kuretich: Now as I explained to you, you don’t have to be inside the store to be charged as an accomplice.
J.D.: I know that.
Kuretich: I am aware that you were a look out. You went and looked through the window as the whole thing occurred.

Afterward, J.D. went on to disclose her involvement in the robbery and the role of the other suspects. Kuretich ended the telephone call, as he began it, with a conversa*775tion with Hagen. Based on her statements, J.D. was charged with one count of aggravated robbery with a sentencing enhancement for violent crimes. See §§ 18-4-302(l)(b), 6 C.R.S. (1999); 19-2-516(3), (4), 6 C.R.S. (1999).

B.

The sole issue before us is whether J.D. was in custody for Miranda purposes. The voluntariness of the statements made by J.D. was not resolved in the trial court and is not before us. I agree with the majority that the correct test to determine whether a juvenile is in custody for Miranda purposes is a totality of the circumstances test. See maj. op. at 768. I also agree that, in detention settings, the appropriate test is a totality of the circumstances test that takes into account the factors set forth in our recent decision in Denison. See maj. op. at 768.

When determining whether a person is in custody for Miranda purposes, a court must decide “whether a reasonable person in the suspect’s position would consider herself deprived of her freedom of action in a significant way at the time of questioning.” People v. Dracon, 884 P.2d 712, 716-17 (Colo.1994); see also People v. Trujillo, 784 P.2d 788, 791 (Colo.1990). Courts rely on the totality of the circumstances test to determine a reasonable person’s belief. See Dracon, 884 P.2d at 717; Trujillo, 784 P.2d at 791.

When a person is in detention for another matter, a “restriction” standard is used for custody determinations. See People v. Denison, 918 P.2d 1114, 1116 (Colo.1996)(citing Cervantes v. Walker, 589 F.2d 424 (9th Cir.1978)). Under the “restriction” standard, a court includes four factors within the totality of the circumstances test when deciding whether a detained person is in Miranda custody. See Denison, 918 P.2d at 1116. The four factors are: “(1) the language used to summon the individual; (2) the physical surroundings of the interrogation; (3) the extent to which [the detainee] is confronted with evidence of his guilt; and (4) the additional pressures exerted to detain [the detainee].” Id.

The Denison restriction standard is consistent with the purpose of Miranda. Miranda was primarily concerned with the inherently coercive nature of custody. Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When a person is already detained for another reason, the detention is no longer inherently coercive. If we were to judge all detention settings as inherently coercive, then the on-the-scene questioning exception outlined in Miranda would disappear in such settings. See Cervantes, 589 F.2d at 427 (citing to Miranda, 384 U.S. at 477, 86 S.Ct. 1602). Every investigative or fact-finding interview in a detention setting would require Miranda warnings. Id. This result would be inconsistent with Miranda. Hence, the Denison factors are designed to test whether the coercive aspect of the detention is present even though the person was already in detention.

This concern about the coercive nature of detention is missing from the majority’s understanding that the Denison factors only relate to “an undue ‘limitation of movement or other form of restraint ... placed on the defendant during the interrogation.’ ” Maj. op. at 768-769 fn. 5 (quoting People in the Interest of J.C., 844 P.2d 1185, 1189 (1993)).2 The Miranda Court appraised psychological restraints as a more important factor than physical restraints for determinations of co-erciveness. See Miranda, 384 U.S. at 448, 86 S.Ct. 1602. Consistent with this appraisal of psychological restraints, some of the Deni-son factors do not address physical restraints. The language used to summon an individual and whether the person is confronted with evidence of guilt focus instead on psychological restraint.

Correctly applying the test, the trial court made thorough findings concerning all the circumstances of the interrogation, including the Denison factors. Regarding the first Denison factor,'the trial court found nothing significant in the way the officers summoned *776the juvenile. Under the second factor, however, the trial court made findings regarding J.D.’s physical surroundings during the interrogation. The trial court found that J.D. was in a room separate from the population at the detention center. The trial court further found that J.D.’s probation officer and a detention officer were present for the duration of the interrogation.

Kuretich’s testimony supports the finding that the interrogation took place in a room separated from the rest of the population in detention. Kuretich testified that the first .call took place in a large room with many girls of J.D.’s age present. During the speakerphone interrogation, Hagen said that only he, Foster and J.D. were present. The probation and detention officers were present in the room for the duration of the interrogation as noted from the telephone transcripts. Throughout the conversation, the probation officer actively participated: the speakerphone interrogation began and ended with him and he helped the detective persuade J.D. to talk.

Under the third factor, the evidence in the record supports the trial court’s finding that Kuretich confronted J.D. with evidence of her guilt. At the suppression hearing, Kure-tich testified that he showed J.D. pictures of the robbery. In these pictures, there was a female that looked like J.D. During the speakerphone interrogation, Kuretich said that he had several other people to interrogate who “may finger [J.D.].” He also claimed that he was aware that “[J.D.] was a look out [who] went and looked through the window as the whole thing occurred.”

There is ample evidence to support the trial court’s finding of additional pressures used to detain J.D. under the fourth factor. Even before the recorded telephone interrogation, Kuretich had mentioned his efforts to reduce the charges against J.D. in exchange for her information on the robbery. He threatened that she would be returned to Colorado, prosecuted as an adult, and sent to prison.

Before J.D. made incriminating statements, Hagen and Kuretich exerted pressure on J.D. to keep her detained in a separate room and coerce her into confessing. These promises and threats increased when she appeared reluctant to give a statement. The record also supports the trial court’s finding that, “there was both coaxing and some implied threats that if she was not willing to cooperate that they would seek information from others and then would proceed with full panoply of charges against her.” In the trial court’s judgment, all these actions exerted pressure to keep her detained in a separate room for the duration of the interrogation.

The trial court made other findings regarding the circumstances of the interrogation. The trial court found that J.D. did not have control over the telephone and could not hang up at any time to end the interrogation. The evidence in support of this finding includes the presence of the two officers during the entire interrogation and the fact that it was a telephone conference by speakerphone. The trial court also noted that this case was distinguishable from other eases where the defendant had the power to end the conversation by simply hanging up.

In contrast to this finding supported by the record, the majority found that J.D. had control over the speakerphone interview. See maj. op. at 769. The majority did not see “any indication of control exercised by [the] two adults present with J.D.” Id. The majority argued that “[t]here is no evidence to indicate that J.D. was unable to terminate her telephone conversation at any time.” Id. at 772.

Also in contrast to the trial court’s supported findings, the majority found that there was no restriction or limitation on J.D.’s freedom during the interrogation. See id. at 772. In the majority’s opinion, there was “no ‘restriction’ placed on J.D. that resulted in an added imposition on her freedom of movement.” Id.

The majority found that the probation and detention officers attended the telephone interrogation at J.D.’s request and were people that J.D. trusted. See id. at 771. Nowhere does the record even suggest that J.D. trusted Hagen or Foster, only that Kuretich instructed her to get someone she trusted. Nevertheless, the majority assumes that J.D. was able carry out these instructions, make *777the arrangements for a private room with a speakerphone, and find people she trusted while in detention.

The record supports the trial court’s opposite conclusion. J.D.’s language betrayed her uneasiness with the whole interrogation. In fact, Kuretich had to point out that she “need[edj to start trusting someone.” Based on the circumstances of the interrogation, the trial court found that, in the company of Hagen and Foster, J.D. was under restraint. The trial court also found that there was not a parental or custodial figure present. Hence, the majority’s finding that she trusted Hagen and Foster is inconsistent with the record and the trial court’s findings concerning the role the officers played in restraining her movement and preventing her control over the speakerphone.

While the majority “do[es] not question the trial court’s decision to apply the totality of the circumstances standard” or its “factual findings, none of which are in material dispute,” maj. op. at 770, they nonetheless apply the same standard to those findings and reach a different conclusion. See id. I agree with the majority that the evidence supported the trial court’s findings and that the trial court applied the proper test in determining that the juvenile was in custody. I further agree that the standard of review is a clearly erroneous standard, under which we will not reverse “[wjhere the trial court utilizes the correct legal standard, and its conclusion is supported by evidence in the record.” Id. at 768.

This totality of the circumstances test by nature lends itself to the deferential standard laid out above. No single factor is required or exclusive of the others. As such, reasonable people can disagree about the factors applicable to the circumstances of a certain case. Different circumstances require different factors. The trial court must apply the test to decide which factors are present and what weight each factor deserves. The trial court carries out this application and decision-making on a case by case basis, warranting deference on the part of the appellate court.

It is generally true that the degree of restraint and control associated with a custodial setting does not occur by telephone, or when the detention is for an unrelated matter. However, the trial court found particulars which make this case exceptional: the use of a speakerphone, the presence of officers assisting the interrogation, the separation from the general population, and the promises and threats about whether the detained juvenile would be returned to Colorado for prosecution.

Consequently, I believe that the applicable standard of review requires us to uphold the trial court’s suppression ruling even if we would rule differently were we sitting as the trial court.

II.

The trial court considered the totality of the circumstances in this case, including the four factors $pplied in detention settings. Under these factors, the trial court made explicit findings. I find evidence in the record to support these findings. I would not substitute the trial court’s findings or conclusion with my own. Henee, I would uphold the trial court’s ruling to suppress the statements made during the interrogation.

Justice HOBBS and Justice BENDER join in this dissent.

. The parties did not raise any issues regarding this initial contact in detention. Thus, I do not consider any impact of this contact here, other than as factual background.

. The majority cites J.C. to characterize the Deni-son factors as only relating to physical restraint, even though J.C. was decided three years before Denison. See maj. op. at 768-769 fn. 5. J.C. is not relevant to a discussion of the Denison factors because J.C. was at home during the interrogation, not in detention. See J.C., 844 P.2d at 1186.