     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                           December 5, 2019

                               2019COA177

No. 16CA2086, People v. Compos — Criminal Law — Search and
Seizure — Custodial Interrogation — Miranda

     A division of the court of appeals concludes for the first time in

Colorado that when an individual is interrogated in violation of

Miranda, and the response to the questioning is itself a criminal act

such as providing a false identity, Miranda’s exclusionary rule will

not bar admission of the statement at a subsequent trial involving

charges based on the criminal act.
 COLORADO COURT OF APPEALS                                     2019COA177


Court of Appeals No. 16CA2086
Pueblo County District Court No. 16CR254
Honorable Thomas B. Flesher, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Vincent Joseph Compos,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division V
                           Opinion by JUDGE TOW
                       Harris and Márquez*, JJ., concur

                         Announced December 5, 2019


Philip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Julia Chamberlin, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1    Defendant, Vincent Joseph Compos, appeals from a judgment

 of conviction entered on jury verdicts finding him guilty of criminal

 impersonation and false reporting to authorities. As a matter of

 first impression, we hold that when an individual is interrogated in

 violation of Miranda, and the response to the questioning is itself a

 criminal act such as providing a false identity, Miranda’s

 exclusionary rule will not bar admission of the statement at a

 subsequent trial involving charges based on the criminal act. We

 therefore affirm the judgment.

                           I.     Background

¶2    According to the prosecution’s evidence, police arrested

 Compos at the home of the victim, a woman whom Compos had

 previously dated. Compos had previously been arrested and

 charged with domestic violence crimes against the victim, which

 had resulted in a protection order being issued against Compos. 1

 On the night of his arrest, Compos appeared unexpectedly at the

 victim’s home and, according to the victim, pointed a gun at her




 1Among other things, the protection order prohibited Compos from
 being at the victim’s home.

                                    1
 and one of her children, threatening to kill them. The victim called

 the police and fled.

¶3    The victim reported to the police that Compos was at her home

 in violation of the protection order and that he had assaulted her.

 Two officers confronted Compos while he was inside the victim’s

 home. At that time, he identified himself as “J.R.”

¶4    The officers arrested Compos. Later, as he was standing next

 to a police car in handcuffs, a third officer asked Compos his name

 and he replied, “John Rocha.” Compos also volunteered a date of

 birth that matched John Rocha’s identity. Afterward, officers

 discovered that Compos had provided a false name and date of birth

 in response to the officer’s question.

¶5    Compos was charged with felony menacing, criminal

 impersonation, violation of bail bond conditions, and violation of a

 protection order. At Compos’s request, the trial court bifurcated the

 proceedings, and Compos was first tried for felony menacing and

 criminal impersonation. The jury found him not guilty of felony

 menacing but guilty of criminal impersonation and the lesser

 nonincluded offense of false reporting to authorities. Compos later




                                    2
 pleaded guilty to a single count of violating a protection order in

 exchange for dismissal of the remaining charges.

¶6    On appeal, Compos contends that the trial court erred by (1)

 failing to suppress his post-arrest statement giving a false name

 and (2) declining to grant a mistrial after the victim testified about

 his prior bad acts.

                       II.   Suppression of Statement

¶7    Before trial, Compos moved to suppress his statement to the

 officer that his name was “John Rocha” on the ground that it had

 been obtained in violation of Miranda v. Arizona, 384 U.S. 436

 (1966). After a hearing, the trial court denied the motion,

 concluding that the officer’s question was a “standard question of

 identification” that was “consistent with when [Compos] would be

 booked into jail.” Accordingly, the trial court found that the

 question did not constitute “custodial interrogation.”

¶8    At trial, the prosecution relied on Compos’s statement to

 support the charges of criminal impersonation and false reporting

 to authorities.




                                      3
                        A.    Standard of Review

¶9     When considering a trial court’s ruling on a motion to

  suppress, we defer to its findings of fact if they are supported by the

  record but review its conclusions of law de novo. People v.

  Mejia-Mendoza, 965 P.2d 777, 780 (Colo. 1998); People v. Allen, 199

  P.3d 33, 35 (Colo. App. 2007). However, “appellate courts have the

  discretion to affirm decisions, particularly denial of suppression

  motions, on any basis for which there is a record sufficient to

  permit conclusions of law, even though they may be on grounds

  other than those relied upon by the trial court.” Moody v. People,

  159 P.3d 611, 615 (Colo. 2007).

                              B.    Analysis

¶ 10   The United States Constitution provides that no person “shall

  be compelled in any criminal case to be a witness against himself.”

  U.S. Const. amend. V; see also Colo. Const. art. II, § 18. To protect

  this right against self-incrimination, Miranda provides that a

  “suspect’s statements made during a custodial interrogation are

  inadmissible unless the suspect received adequate advisement of

  his constitutional rights.” People v. J.D., 989 P.2d 762, 768 (Colo.




                                     4
  1999). Therefore, Miranda’s protections apply only to a suspect

  who is (1) in custody and (2) subject to interrogation. Id.

¶ 11   The trial court found, and the parties agree, that Compos was

  in custody when the officer asked him his name. The parties

  disagree as to whether Compos was subject to interrogation.

¶ 12   Under Miranda and its progeny, a person is interrogated when

  he is subject to “either express questioning or its functional

  equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980);

  see also People v. Gonzales, 987 P.2d 239, 242 (Colo. 1999). In

  other words, for Miranda purposes, interrogation includes not just

  direct questioning, but also “any words or actions on the part of the

  police (other than those normally attendant to arrest and custody)

  that the police should know are reasonably likely to elicit an

  incriminating response from the suspect.” Innis, 446 U.S. at 301

  (footnotes omitted).

¶ 13   The purpose of Miranda is to protect suspects from

  investigative interrogation, which might bend a suspect’s will to that

  of his examiner, and not from routine questions about basic

  identifying information. Innis, 446 U.S. at 299. Accordingly, police

  officers are not required to give Miranda warnings prior to asking a


                                    5
  “routine booking question” aimed at securing the “biographical data

  necessary to complete booking or pretrial services.” Pennsylvania v.

  Muniz, 496 U.S. 582, 601-02 (1990) (plurality opinion). But law

  enforcement officers’ ability to inquire about basic identification and

  biographical data is not unlimited. Even as it created the “routine

  booking exception,” the Supreme Court cautioned, “[w]ithout

  obtaining a waiver of the suspect’s Miranda rights, the police may

  not ask questions, even during booking, that are designed to elicit

  incriminatory admissions.” Muniz, 496 U.S. at 602 n.14.

¶ 14   Compos contends that the officer’s request for his name was

  “express questioning” and thus “interrogation”; that it did not fall

  within Muniz’s booking exception to Miranda because it was not

  asked during the administrative booking process; and that it was

  likely to elicit an incriminating response, because his presence at

  the victim’s home tended to show that he had knowingly violated

  the protection order. The People respond that notwithstanding the

  circumstances of the questioning, the trial court correctly treated

  the officer’s inquiry as a noninvestigative, administrative question

  covered by the booking exception.




                                     6
¶ 15   We need not resolve that dispute. Even assuming the

  question was asked in violation of Miranda, we conclude that the

  trial court correctly denied the motion to suppress because

  Compos’s false statement about his identity constituted a new

  crime, not evidence of a prior crime, and thus the exclusionary rule

  does not apply.

¶ 16   Generally, the prosecution is prohibited from admitting in its

  case-in-chief statements acquired through custodial interrogation

  in the absence of Miranda warnings. Miranda, 384 U.S. at 492;

  People v. Breidenbach, 875 P.2d 879, 889 (Colo. 1994). “However,

  not all evidence obtained as a result of an illegal interrogation must

  be suppressed under the exclusionary rule.” Breidenbach, 875 P.2d

  at 889. For example, in Breidenbach, the Colorado Supreme Court

  analyzed a prosecution claim that evidence obtained in violation of

  Miranda should have nevertheless been admissible because of the

  inevitable discovery exception. Id.

¶ 17   The theoretical and policy underpinnings of the Fourth

  Amendment exclusionary rule are different from those of the

  Miranda exclusionary rule. See People v. Trujillo, 49 P.3d 316, 328

  (Colo. 2002) (Coats, J., concurring in the judgment). Thus, the full


                                    7
  scope of the two exclusionary rules may not be coextensive.

  However, as the supreme court made clear in Breidenbach, an

  exception to suppression rooted in the Fourth Amendment may be

  equally applicable in the Fifth Amendment context.

¶ 18   Another exception to the exclusionary rule is the new crime

  exception. The Colorado Supreme Court has adopted this exception

  in the Fourth Amendment context. People v. Doke, 171 P.3d 237

  (Colo. 2007). In Doke, the supreme court held that “if, following an

  illegal stop or attempted stop, the detained person’s response is

  itself a new, distinct crime, then the police constitutionally may

  arrest the person for that crime and the evidentiary fruit of that

  arrest will not be suppressed.” Id. at 239 (quoting People v. Smith,

  870 P.2d 617, 619 (Colo. App. 1994)); see also People v. Tomaske,

  2019 CO 35, ¶ 18 (explaining that the Fourth Amendment

  exclusionary rule applies “where police officers’ misconduct leads to

  their discovery of evidence of a completed crime” but not where the

  police misconduct “led to the commission of a new crime”)

  (emphasis in original).




                                    8
¶ 19   While no Colorado appellate court has addressed whether this

  exception applies to the Miranda-based exclusionary rule, other

  courts have.

¶ 20   In United States v. Kirk, 528 F.2d 1057 (5th Cir. 1976), the

  defendant was subjected to custodial interrogation without having

  been advised of his Miranda rights. Id. at 1060. During the

  interrogation, he told federal agents he was “going to blow the

  [President’s] brains out.” Id.

¶ 21   Based on that statement, the defendant was indicted for a

  single count of making threats against the President. Id. After

  being convicted, the defendant appealed the trial court’s denial of

  his motion to suppress the threatening statement. In affirming, the

  court of appeals observed, “[t]he Fifth Amendment’s prohibition

  against self-incrimination relates to crimes alleged to have been

  committed prior to the time when the testimony is sought.” Id. at

  1061. The court declined to require suppression of the statement

  because “no [F]ifth [A]mendment problem is presented when a

  statement . . . in and of itself constitutes the crime charged.” Id. at

  1062.




                                     9
¶ 22   Similarly, in United States v. Mitchell, 812 F.2d 1250 (9th Cir.

  1987), abrogated on other grounds by Planned Parenthood of

  Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 290

  F.3d 1058 (9th Cir. 2002), customs agents, who had information

  that the defendant had made threats against the President, arrested

  him. Id. at 1252. Without providing Miranda warnings, agents

  from another law enforcement agency later questioned the

  defendant and he reiterated his threat to kill the President. Id.

¶ 23   The court of appeals affirmed the trial court’s denial of the

  defendant’s motion to suppress his statements. Id. at 1253. It

  concluded that “[c]ommitting a crime is far different from making an

  inculpatory statement, and the treatment we afford the two events

  differs accordingly.” Id. The court reasoned that the exclusionary

  rule was not “the proper vehicle for determining whether a crime

  should be immunized from prosecution.” Id. at 1254.

¶ 24   The Seventh Circuit followed a similar approach in United

  States v. Pryor, 32 F.3d 1192 (7th Cir. 1994). There, after arresting

  the defendant’s friend, an officer asked the defendant for his

  identification. In response, the defendant provided a false name




                                    10
  and Social Security card. Id. at 1194. Defendant was later charged

  with fraudulent use of a Social Security number. Id.

¶ 25   He challenged the admission of his false statements to the

  officers, both as the fruit of an illegal detention and as a violation of

  his Miranda rights. Id. at 1195. In rejecting the defendant’s claims,

  the court of appeals declined to resolve several questions, including

  whether the defendant had been detained and whether he had been

  interrogated: “This is a nice list of questions, but none of the

  answers matters. [The defendant] did not divulge evidence of some

  prior crime during his few minutes in the office; instead he

  committed a crime, which makes all the difference.” Id. The court

  held that “to suppress the evidence would be to say that the

  suspect is indeed free to commit the crime. The exclusionary rule,

  whether under the [F]ourth or [F]ifth [A]mendment, does not reach

  so far.” Id. at 1196.

¶ 26   In our view, the principle enunciated in Kirk, Mitchell, and

  Pryor is both sound and consistent with our supreme court’s

  announcement in Doke. We thus conclude that when an individual

  is interrogated in violation of Miranda, and his response to

  questioning is itself a crime, the exclusionary rule will not bar


                                     11
  admission of the response at any subsequent trial for charges based

  on the criminal act committed in the response.2 As a result, albeit

  on different grounds, we affirm the trial court’s denial of the motion

  to suppress. See People v. Aarness, 150 P.3d 1271, 1277 (Colo.

  2006) (holding that an appellate court may affirm the trial court on

  any grounds supported by the record).

                               III.   Mistrial

¶ 27   Compos next contends that the trial court violated his

  constitutional right to a fair trial by denying his motions for a

  mistrial after evidence of his prior bad acts was admitted. We are

  not persuaded.

                         A.   Standard of Review

¶ 28   We review a trial court’s denial of a motion for mistrial for an

  abuse of discretion. People v. Van Meter, 2018 COA 13, ¶ 9. A trial

  court abuses its discretion when its ruling is manifestly arbitrary,

  unreasonable, or unfair, or it misapplies the law. Id. Where the

  request for a mistrial is based on improper statements at trial, we




  2 Of course, to be admissible, any statement must also be
  voluntary. Compos does not challenge the voluntariness of his
  statement.

                                      12
  must give the trial court considerable discretion because it “is in a

  better position to evaluate any adverse effect of improper

  statements or testimony on a jury . . . .” Id. (quoting People v.

  Tillery, 231 P.3d 36, 43 (Colo. App. 2009)). The erroneous

  admission or presentation of prior bad act evidence is not

  constitutional error. Yusem v. People, 210 P.3d 458, 469 n.16

  (Colo. 2009).

                          B.   Law and Analysis

¶ 29   Evidence of a defendant’s prior crimes or bad acts is generally

  inadmissible to prove the character of a person to show that he

  acted in conformity therewith on a particular occasion. CRE 404(b).

  However, the evidence may be admissible for other purposes, such

  as proof of motive, intent, plan, identity, or absence of mistake. Id.

¶ 30   In determining the admissibility of evidence concerning prior

  misconduct, a court should consider (1) whether the evidence

  relates to a material fact; (2) whether the evidence is logically

  relevant; (3) whether the evidence has logical relevance apart from

  the inference that the defendant has a bad character and acted in

  conformity therewith to commit the crime charged; and (4) whether

  the probative value of the evidence is substantially outweighed by


                                     13
  the danger of unfair prejudice. People v. Spoto, 795 P.2d 1314,

  1318 (Colo. 1990).

¶ 31   Even if prior bad act evidence is erroneously admitted,

  however, a mistrial is “the most drastic of remedies.” People v.

  Abbott, 690 P.2d 1263, 1269 (Colo. 1984). Therefore, a court

  abuses its discretion in denying a mistrial only when the

  presentation of inadmissible evidence is likely to have substantially

  prejudiced the jurors despite other remedies. Id. In considering

  whether a trial court should have declared a mistrial, relevant

  factors include the nature of the inadmissible evidence, the weight

  of admissible evidence concerning the defendant’s guilt, and the

  value of any cautionary instruction given. People v. Vigil, 718 P.2d

  496, 505 (Colo. 1986).

¶ 32   Compos asserts that the victim made two prejudicial

  statements at trial in violation of CRE 404(b).

¶ 33   First, when the prosecutor asked the victim to describe her

  argument with Compos on the day of his arrest, she testified that

  he was “[j]ust pushing me around, yelling at me like he always did.”

  Defense counsel objected and moved for a mistrial. The trial court

  denied the motion.


                                    14
¶ 34   Second, in response to the prosecutor’s questions about an

  interview with a defense investigator, the victim testified that she

  and the investigator had talked about her relationship with Compos

  “and other pending cases.” Defense counsel renewed his motion for

  a mistrial, and the court again denied the motion. However, the

  trial court precluded the prosecutor from asking further questions

  and offered to instruct the jury to disregard the statement about

  pending cases. Defense counsel declined the court’s offer.

¶ 35   Even assuming the two statements were inadmissible under

  Rule 404(b), we conclude that their admission did not warrant a

  mistrial. The victim’s statement that Compos was “pushing her

  around” and yelling “like he always did” did not unambiguously

  indicate that Compos had previously subjected her to physical

  abuse. True, her testimony could have been construed to mean

  that he had pushed the victim on other occasions, but it could also

  have been construed to mean that although he habitually yelled at

  her, on this occasion, he also pushed her.

¶ 36   Likewise, when viewed in context, the second statement

  referencing “other pending cases” did not clearly implicate Compos.

  During cross-examination, defense counsel extensively questioned


                                    15
  the victim about criminal charges she incurred based on her

  encounter with police on the night of Compos’s arrest. On redirect

  examination, the victim acknowledged “other pending cases.” Given

  that the victim had just discussed the charges filed against her, this

  statement did not explicitly refer to any criminal conduct by

  Compos.

¶ 37   An ambiguous reference to a defendant’s prior criminal

  misconduct or other bad acts does not warrant a mistrial. People v.

  Salas, 2017 COA 63, ¶ 12; People v. Lahr, 2013 COA 57, ¶¶ 24, 27.

  Moreover, when a reference to improper conduct is fleeting, as it

  was here with respect to both statements, the potential prejudice is

  minimized. Lahr, ¶ 24.

¶ 38   Any prejudice created by the victim’s statements is especially

  inconsequential in this case given the other evidence of Compos’s

  prior misconduct, including evidence that the victim had obtained a

  protection order against him. In other words, the jury was aware,

  based on properly admitted evidence, that Compos had engaged in

  prior misconduct with respect to the victim. We do not believe that

  the victim’s fleeting statements about pushing and yelling or “other

  pending cases” would have substantially altered the jury’s existing


                                   16
  impression of Compos. Nor, it appears, did defense counsel

  perceive that the victim’s testimony was particularly prejudicial, as

  he declined the court’s offer of a limiting instruction.

¶ 39   We note as well that the jury did not find Compos guilty of

  felony menacing. The verdict of acquittal on some counts but not

  others indicates that the jury was able to separate the facts and law

  applicable to each charge and it did not blindly convict based on

  prejudicial testimony. Martin v. People, 738 P.2d 789, 795-96 (Colo.

  1987) (concluding that the jury’s failure to convict on all counts was

  an indication that it did not blindly convict the defendant based on

  prejudicial evidence of a prior conviction).

¶ 40   Moreover, there was ample evidence that Compos repeatedly

  misrepresented his identity to the police, and the jury was able to

  rely on this evidence alone to convict Compos.

¶ 41   Accordingly, we do not perceive that the trial court abused its

  discretion by denying Compos’s motions for a mistrial.

                             IV.   Conclusion

¶ 42   The judgment is affirmed.

       JUDGE HARRIS and JUDGE MÁRQUEZ concur.




                                     17
