             Opinions of the Colorado Supreme Court are available to the
         public and can be accessed through the Judicial Branch’s homepage at
           http://www.courts.state.co.us. Opinions are also posted on the
           Colorado Bar Association’s homepage at http://www.cobar.org.


                                                     ADVANCE SHEET HEADNOTE
                                                                   May 22, 2017

                                      2017 CO 48

No. 17SA23, People in the Interest of Z.T.T.—Criminal Law—Evidence Suppression.

      This     interlocutory appeal requires the supreme court to answer whether a

defendant’s confession to an Army investigator during basic training was the product

of coercion.    The supreme court holds that, when a defendant knowingly and

intelligently waived his Miranda rights, knew he was free to leave an interview, and

confessed to committing a crime during the course of a conversational, friendly

interview devoid of coercive promises or threats, he gave his statements voluntarily.

The supreme court therefore reverses the trial court’s suppression order and remands

for proceedings consistent with this opinion.
                     The Supreme Court of the State of Colorado
                       2 East 14th Avenue • Denver, Colorado 80203


                                       2017 CO 48

                           Supreme Court Case No. 17SA23
                       Interlocutory Appeal from the District Court
                     La Plata County District Court Case No. 15JD43
                         Honorable William L. Herringer, Judge

                                   Plaintiff–Appellant:
                           The People of the State of Colorado,
                                     In the Interest of
                                   Juvenile–Appellee:
                                          Z.T.T.

                                     Order Reversed
                                         en banc
                                       May 22, 2017


Attorneys for Plaintiff–Appellant:
Christian Champagne, District Attorney, Sixth Judicial District
Sean Murray, Deputy District Attorney
John-Patrick Sansom, Deputy District Attorney
 Durango, Colorado

Attorneys for Juvenile–Appellee:
The Walsh Law Firm, LLC
Jeffrey M. Walsh
 Steamboat Springs, Colorado

Greenberg, McGuinness & Alt, LLC
Ingrid A. Alt
 Durango, Colorado




CHIEF JUSTICE RICE delivered the Opinion of the Court.
¶1     This    interlocutory appeal requires us to answer whether a defendant’s

confession to an Army investigator during basic training was the product of coercion.

We hold that, when a defendant knowingly and intelligently waived his Miranda

rights, knew he was free to leave an interview, and confessed to committing a crime

during the course of a conversational, friendly interview devoid of coercive promises or

threats, he gave his statements voluntarily.      We therefore reverse the trial court’s

suppression order and remand for proceedings consistent with this opinion.

                           I. Facts and Procedural History

¶2     In the fall of 2015, the victim, F.G.—age thirteen at the time—told the La Plata

County Sheriff’s Office that seven years prior, the defendant, Z.T., had forced her to

give him oral sex on several occasions at BMX bicycle races. At the time of the alleged

assaults, F.G. was six and Z.T. was thirteen. Z.T., at the time that F.G. made the

allegations in 2015, was in Army basic training at Fort Benning, Georgia. A La Plata

County sheriff’s deputy formally requested that Agent Kevin Kendall of the Army’s

Criminal Investigations Division (“CID”) at Fort Benning interview Z.T. about F.G.’s

allegations.

¶3     Z.T.’s commanding officer escorted him to the interview. Agent Kendall advised

Z.T. of his Miranda rights and that the interview concerned allegations of a “child sex

assault.” Initially, Z.T. invoked his right to an attorney and Agent Kendall said, “I’ll let

your command know and they’re going to come pick you up, and then . . . whatever

you want to do from there is pretty much the gist of it.” Z.T. then decided to revoke his




                                             2
request for counsel and agreed to proceed without counsel. Z.T. signed a waiver to that

effect. Agent Kendall then spoke with Z.T. for nine hours.

¶4     For the first three hours of the interview, Agent Kendall and Z.T. discussed Z.T.’s

childhood, family, friends, experiences racing BMX bicycles, and sexual history. When

asked if he knew why he was being interviewed, Z.T. stated that he did not know.

Almost three hours into the interview, Agent Kendall told Z.T. that F.G. was his accuser

and what F.G. had accused him of, and Z.T. denied ever touching F.G. inappropriately.

Agent Kendall rejected his denials with statements such as, “This isn’t going to go

away,” “There has to be more than that,” and “These allegations are very specific, and

kids don’t just make this stuff up.” Agent Kendall then began invoking Z.T.’s military

career, stating:

       We don’t want this to . . . we don’t want it to affect your military career or
       affect your life at all . . . help us understand what’s going on . . . why she
       would feel this way.

       ....

       The quicker we find out the truth, you know, the faster we’ll be able to
       take care of this and get it wrapped up so that way it’s not affecting your
       career. . . . Okay, because I don’t want this to affect your career. . . . I
       don’t want this to be hanging over you for the rest of your life. . . . You
       know, mistakes happen . . . and people do things, and they regret it later.
       They’re like, crap, I shouldn’t have done that . . . the kid, you know, steals
       a candy bar . . . and the guy that accidentally kisses a girl and maybe she
       didn’t want to be kissed.

¶5     After a long pause, Z.T. admitted to inappropriate sexual contact with F.G.

Specifically, Z.T. admitted to masturbating with F.G. on his lap during a game of hide

and seek. Agent Kendall and Z.T. then discussed Z.T.’s strong religious upbringing,




                                             3
and Z.T. described the overwhelming guilt he felt from the improper sexual contact

with F.G. Z.T. then also admitted to other instances of improper sexual contact with

F.G., including oral sex, and discussed how guilty these other acts made him feel.

Afterward, Z.T. told Agent Kendall that he would not have been honest with a more

aggressive interrogator, and thanked him, stating:

       I honestly don’t think if I had someone who was, all right, you did it,
       what’s going on, what’d you do, where, why? Sir, I would have locked
       up. I don’t think I could have truthfully completed everything being
       hounded like that sir. So I guess I’m trying to say thank you for being
       understanding.

¶6     At the end of the interview, Z.T. swore that he freely gave his statements and

read aloud the following:

       I, [Z.T.], have read or have had read to me this statement which begins on
       page one and ends on page four. I fully understand the contents of the
       entire statement made by me. I have initialed the bottom of each page
       containing the statement. I’ve made this statement freely without hope of
       benefit or reward, without threat of punishment, and without coercion,
       unlawful influence, or unlawful inducement.

Agent Kendall asked Z.T. if he knew what that meant, and Z.T. said, “Yes sir, no one

forced me or said it would be better or worse for me to do this.” Finally, Agent Kendall

asked, “Do you swear at this time, do you swear, this whole statement is the truth?”

Z.T. answered, “I swear that this statement is the truth.”

¶7     The prosecution then charged Z.T. with sexual assault on a child. Z.T. waived

his right to contest extradition and was transported to Colorado to stand trial.     In

August 2016, Z.T.’s defense counsel successfully moved to suppress his confessions. In

suppressing Z.T.’s confessions, the trial court concluded that Agent Kendall had




                                            4
engaged in coercive conduct that played a significant role in inducing Z.T.’s

confessions, particularly Agent Kendall’s promises of leniency. However, the trial court

also held that Z.T. (1) was not in custody at the time of his confessions; (2) knowingly

and intelligently waived his Miranda rights; (3) initiated further communication with

Agent Kendall after he had invoked his right to counsel; and (4) made a second

knowing and intelligent waiver of his Miranda rights.

¶8     The prosecution filed a timely interlocutory appeal pursuant to section

16-12-202(2), C.R.S. (2016), and C.A.R. 4.1. We now reverse the trial court’s suppression

order and remand for proceedings consistent with this opinion.

                                        II. Analysis

¶9     The prosecution argues that the trial court improperly suppressed Z.T.’s

confessions because Agent Kendall never engaged in coercive behavior and that Z.T.’s

confessions were voluntary. We agree.

¶10    “A trial court’s suppression order presents a mixed question of law and fact.”

People v. McIntyre, 2014 CO 39, ¶ 13, 325 P.3d 583, 586. We defer to a trial court’s

findings of historical fact that are supported by competent evidence, but we review the

legal effect of those facts de novo. Id., 325 P.3d at 587.

¶11    For a defendant’s confession to be admissible, he must have made it voluntarily.

Id. at ¶ 15, 325 P.3d at 587.      “If the defendant makes a prima facie showing of

involuntariness at a suppression hearing, the prosecution then bears the burden of

establishing by a preponderance of the evidence that he in fact made the statements

voluntarily.” Id.; accord Prima Facie, Black’s Law Dictionary (10th ed. 2014) (stating


                                              5
that a prima facie showing is one that is “[s]ufficient to establish a fact or raise a

presumption unless disproved or rebutted”).

¶12     To determine whether a defendant made voluntary statements, we consider the

totality of the circumstances surrounding the statements, “particularly ‘the significant

details surrounding and inhering’ in the questioning.” McIntyre, ¶ 16, 325 P.3d at 587

(quoting People v. Ramadon, 2013 CO 68, ¶ 20, 314 P.3d 836, 842). A defendant’s

statements are involuntary when an officer’s behavior was “coercive so as to overbear

the defendant’s will in making the statements.” Id. (quoting People v. Zadran, 2013 CO

69M, ¶ 10, 314 P.3d 830, 833). “The existence of coercion alone, however, does not

automatically nullify the voluntariness of a defendant’s statements and make them

inadmissible.” Id. “Instead, in order to justify suppression, ‘the coercive police conduct

must have played a significant role in inducing the statement[s].’” Id. (alterations in

original) (quoting Zadran, ¶ 10, 314 P.3d at 833).

¶13     In evaluating the coerciveness of the police’s conduct, we examine “both the

defendant’s ability to resist coercive pressures and the nature of the police conduct.”

Ramadon, ¶ 20, 314 P.3d at 842. Specifically, we consider the following non-exhaustive

list of factors:

        1. whether the defendant was in custody;
        2. whether the defendant was free to leave;
        3. whether the defendant was aware of the situation;
        4. whether the police read Miranda rights to the defendant;
        5. whether the defendant understood and waived Miranda rights;
        6. whether the defendant had an opportunity to confer with counsel or
           anyone else prior to or during the interrogation;
        7. whether the statement was made during the interrogation or
           volunteered later;


                                             6
       8. whether the police threatened [the] defendant or promised anything
           directly or impliedly;
       9. the method [or style] of the interrogation;
       10. the defendant’s mental and physical condition just prior to the
           interrogation;
       11. the length of the interrogation;
       12. the location of the interrogation; and
       13. the physical conditions of the location where the interrogation
           occurred.

McIntyre, ¶ 17, 325 P.3d at 587 (alterations in original).

¶14    Here, the first six factors favor a finding of voluntariness: (1) Z.T. was not in

custody; (2) Z.T. was free to leave the interview and have his commanding officer pick

him up; (3) Z.T. was told he was there because of sexual assault allegations; (4) Z.T. was

told of his Miranda rights; (5) Z.T. knowingly and intelligently waived his Miranda

rights; and (6) Z.T. had the opportunity to obtain and confer with counsel but declined

to do so. As to the seventh factor, Z.T. confessed during the interrogation, but that by

itself is not necessarily indicative of coercion. On the eighth factor, Agent Kendall made

vague references to his hopes that this incident would not affect Z.T.’s career, but Agent

Kendall never made any overt promises to help Z.T. or any promises that by confessing,

Z.T. would be allowed to complete basic training and remain in the Army. As to the

ninth factor, the interview was conversational and friendly. Further, Z.T.’s statements

thanking Agent Kendall for the way in which he conducted the interview support the

conclusion that Agent Kendall did not use coercive methods.

¶15    The final four factors support finding a coercive environment, because the

interview lasted nine hours on an Army base during basic training. But there is no

indication in the record or in the recording of the interview that these factors somehow


                                              7
contributed to coercing Z.T. to confess. Rather, the conversational tone and honest

conversation, coupled with Z.T.’s discussion of his religious upbringing and statements

of guilt, suggest that Z.T. made these statements of his own free will. Z.T. even thanked

Agent Kendall at the end of his interview for helping him tell the truth, saying,

“[T]hank you for being understanding.” Therefore, we hold that Agent Kendall did not

engage in coercive behavior, and Z.T. gave his confessions voluntarily.

                                   III. Conclusion

¶16   We reverse the trial court’s suppression order and remand for proceedings

consistent with this opinion.




                                           8
