Parish Carter Linked To Javad Marshall-Fields, Vivian Wolfe Killing

Case Number: 2017 CO 59

Judge: Nathan Coats

Court: The Supreme Court of the State of Colorado

Plaintiff's Attorney:

Cynthia H. Coffman, Attorney General Elizabeth Rohrbough, Senior Assistant Attorney General

Defendant's Attorney:

Joshua Johnson, Dean Neuwirth

Description: Parish Carter was charged with two counts of first degree murder, bribing a
witness, conspiracy to commit first degree murder, intimidation of a witness, and
unlawful distribution of a controlled substance, all in connection with the drive-by
shooting deaths of Javad Marshall-Fields and his fiancée Vivian Wolfe, the week before
Marshall-Fields was to testify in a prosecution of Carter’s stepbrother, Robert Ray, for
an earlier murder. Carter was acquitted of first degree murder and of bribing a witness
but convicted of conspiracy to commit murder and the remaining charges. He was
sentenced to 48 years for conspiracy and to consecutive lesser terms of incarceration for
his other convictions, for a total sentence of 70 years.

¶4 Prior to trial, the defendant moved to suppress the entirety of his interrogation at
the Aurora Police Department, asserting that he had not been adequately advised of his
Miranda rights, that he did not make an effective waiver of those rights, and that his
statements were, in any event, involuntary. The motion was heard over four different
days, interspersed among similar motions filed on behalf of two other defendants
accused of the same murders. Apart from the testimony of the detective who
interrogated Carter, and through her testimony the videotape of the interrogation itself,
the remainder of the evidence relative to Carter’s interrogation consisted of the
testimony of five witnesses, all concerning Carter’s mental condition and, as a result of
his mental condition, the effectiveness of his waiver of Miranda rights and
voluntariness of his statements.

¶5 With regard to the advisement administered to the defendant, itself, the record of
the suppression hearing indicated that just prior to that interrogation, the lead detective
warned the defendant as follows:

Since you’re in custody, before I can even talk to you I have to do the formal little rights things, okay? So you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney. If you cannot afford to hire a[n] attorney, one will be appointed to you without cost. Do you understand those?


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Following this advisement, the defendant answered questions for somewhere between
ninety minutes and two hours. In doing so, he admitted to being the individual shown
on a security videotape the day before the murders approaching Marshall-Fields in a
sports bar, after which Marshall-Fields was visibly disturbed. The defendant denied,
however, that he made any threats and denied that he made this approach at the behest
of others. He further denied any association with Ray or other individuals considered
suspects by the police. After the interrogation turned confrontational, the defendant
invoked his rights to an attorney and to remain silent, and accordingly, the
interrogation was terminated.

¶6 At the conclusion of the lengthy suppression hearing, the district court rejected
all of the defendant’s grounds for suppressing the interrogation, including his challenge
to the adequacy of the Miranda advisement itself. During trial, the prosecution played
a video recording of the custodial interrogation, and the recording was admitted into
evidence. A transcript of the interrogation was provided to the jurors while the video
played, as a demonstrative exhibit, and it was collected from them immediately
thereafter. At the close of the evidence, the defendant moved the district court to limit
the jury’s access to the interrogation exhibits during deliberations, on the grounds that
the jury would be unfairly prejudiced by re-watching the detectives’ accusations, made
during the interrogation, that the defendant was lying to them. The government
objected, arguing that because the case turned on the defendant’s mental capacity, the
jury needed unfettered access to the video—to see and deliberate over “the defendant’s


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demeanor, his conduct, his reaction, his gestures, his inflections throughout the
interview[,] to help them assess his mental abilities.”

¶7 The trial court largely adopted the government’s position, concluding that
out-of-court statements of criminal defendants should generally be given to juries, and
holding that the specific risk of prejudice asserted by the defendant—arising from the
interrogating detectives’ accusations—did not warrant restricting the jury’s access. The
trial court then provided the jury with the DVD recording and a computer on which to
play it, placing no restrictions on its use. Later, at the request of the jury, the trial court
also provided the jurors with the transcript, along with a defense-requested instruction
that unlike the video, the transcript did not constitute evidence.1

¶8 On direct appeal, the defendant challenged the adequacy of his Miranda
advisement, asserting specifically that the third advisement—that he had a right to have
an attorney—failed to convey that he had a right to the presence of counsel both before
and during his interrogation. In addition, the defendant asserted that even if the
videotape of his interrogation had been properly admitted into evidence, the district
court abused its discretion by denying his motion for restricted access and by instead
1 The instruction read: You are advised that the transcript is the transcriber’s interpretation of what was said and the transcript obviously does not show body language, head movements or intonation. You should rely on the actual video of the interview and only utilize the transcript in viewing the video. You are instructed you are not to rely on the transcript for a final determination of what was said, but rather rely on the video for that purpose.


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permitting the jury unfettered access to both the videotape and a transcript of it during
its deliberations.

¶9 The court of appeals affirmed the defendant’s convictions, with all three
members of the panel writing separately. With regard to the adequacy of the Miranda
advisement, one panelist declined to reach the issue, reasoning that the specific error
assigned on appeal, concerning the timing and extent of the defendant’s right to the
assistance of counsel, had not been preserved. The remaining two panelists found the
advisement inadequate, but one of the two found it to be harmless error. With regard
to exercise of the court’s discretion in permitting the jury access to the defendant’s
interrogation, one panelist declined to address the issue, based on a finding that the
erroneous admission of the defendant’s interrogation was not entirely harmless, while
the remaining two panelists concluded that the district court did not abuse its discretion
in allowing unfettered access to the out-of-court statement of the defendant, and
because the erroneous admission of the defendant’s interrogation at trial was harmless,
any error in allowing the jury access to the erroneously admitted exhibit was similarly
harmless.

¶10 The defendant petitioned this court for further review, challenging the court of
appeals’ conclusions that the district court’s Miranda rulings, although erroneous, were
nevertheless harmless, and that the district court did not abuse its discretion in allowing
jury access to the defendant’s interrogation. The People cross-petitioned for review of
the court of appeals’ conclusion that the defendant was not adequately advised of his
right to the presence of an attorney before and during interrogation.


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II.

¶11 In Miranda v. Arizona, the Supreme Court delineated a system for protecting the
privilege against self-incrimination of individuals taken into custody or otherwise
deprived of their freedom in any significant way by the authorities, and subjected to
questioning. 384 U.S. 436, 471, 478–79 (1966). In the absence of “other fully effective
means,” this system requires warnings of specific rights, a knowing and intelligent
waiver of those rights along with agreement to answer questions, and the opportunity
to exercise those rights throughout the interrogation. Id. The Supreme Court
specifically held that unless and until such warnings and waiver are demonstrated by
the prosecution at trial, no evidence obtained as a result of interrogation can be used
against that individual. Id.

¶12 With regard to the warnings in particular, the Court expressly summarized its
reasoning by holding that the individual “must be warned prior to any questioning that
he has the right to remain silent, that anything he says can be used against him in a
court of law, that he has the right to the presence of an attorney, and that if he cannot
afford an attorney one will be appointed for him prior to any questioning if he so
desires.” Id. Although the Court made clear that the warnings themselves are an
absolute prerequisite, without which sufficient awareness for an effective waiver of
those rights cannot be found, it indicated at the same time that no “talismanic
incantation” was intended. California v. Prysock, 453 U.S. 355, 359–60 (1981) (per
curiam) (describing Miranda, 384 U.S. at 476, 479). In subsequent cases, the Court has
similarly made clear that it “has never indicated that the rigidity of Miranda extends to


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the precise formulation of the warnings given,” Florida v. Powell, 559 U.S. 50, 60 (2010)
(quoting Prysock, 453 U.S. 355 at 359), nor must the words employed in the warnings be
examined “as if construing a will or defining the terms of an easement.” Id. (quoting
Duckworth v. Eagan, 492 U.S. 195, 203 (1989)). Rather the inquiry is simply whether the
warnings “reasonably convey to a suspect his rights as required by Miranda.” Id.
(quoting Duckworth, 492 U.S. at 203 (quoting Prysock, 453 U.S. at 361)) (internal
quotation marks and alterations omitted); see also Sanchez v. People, 2014 CO 56, ¶ 12,
329 P.3d 253, 257.

¶13 In three separate cases, the Supreme Court has addressed the adequacy of a
Miranda advisement with respect to the interrogated person’s right to the presence of
an attorney or some combination of that right and the timing of the right to the
appointment of counsel. While it seems clear that a person must be informed of his
right to the appointment of counsel before custodial interrogation if he cannot afford
but desires one, and his right to consult with counsel and have counsel with him during
any interrogation, Miranda, 384 U.S. at 471–73, the Court found in each of these three
cases that, “in their totality,” the warnings given satisfied the requirements of Miranda.
See Powell, 559 U.S. at 61–64; Duckworth, 492 U.S. at 201–05; Prysock, 453 U.S. at
359-61. In perhaps the closest of the three to this case, the Supreme Court concluded
that being warned of his right to talk to a lawyer before answering questions and his
right to use his rights at any time, reasonably conveyed to the defendant the right to
have an attorney present, not only at the outset of interrogation but at all times. Powell,
559 U.S. at 53–54. The Court reasoned that a “reasonable suspect” in a custodial setting


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who has just been read his rights would not come to the counterintuitive conclusion
that he would be obligated to hop in and out of the holding area to seek his attorney’s
advice or to anticipate a scenario in which his lawyer would be admitted into the
interrogation room each time the police ask him a question and then ushered out each
time the suspect responded. Id. at 62–63. Despite acknowledging that the warnings in
that case were not the clearest possible formulation of Miranda’s right-to-counsel
advisement, the Court found them to be “sufficiently comprehensive and
comprehensible when given a commonsense reading.” Id.

¶14 Unlike the advisement in Powell, the specific advisement of the defendant’s right
to counsel in this case did not include any temporal limitation that might even colorably
be misunderstood to restrict the exercise of that right relative to interrogation by the
police. Rather than being advised that he could consult with a lawyer before answering
any particular question, which had given rise to a suggestion in Powell that he could
therefore consult with counsel only before, and not during, interrogation, the defendant
in this case was advised in the present tense, “You have the right to have an attorney,”
immediately after being advised that before the detective could even talk to him, she
had to do “the formal little rights things,” a clear reference to the advisement of rights
that followed forthwith. In addition to the fact that the defendant was simultaneously
advised in the present tense, “So you have the right to remain silent,” which the
defendant does not suggest could reasonably be understood to refer only to a right to
remain silent later at trial rather than at the time of interrogation, the defendant’s
advisement of his right to counsel was not followed by any suggestion that it would not


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apply until some later time. Cf. Duckworth, 492 U.S. 195 (resolving a question raised by
the subsequent advisement that an attorney would be appointed only “if and when” the
suspect went to court). Much as the Court held in Powell, it would be highly
counterintuitive for a reasonable suspect in a custodial setting, who has just been
informed that the police cannot not talk to him until after they advise him of his rights
to remain silent and to have an attorney, to understand that an interrogation may then
proceed without permitting him to exercise either of those rights.

¶15 The defendant would prefer to ignore the detective’s prologue to her articulation
of the four Miranda rights, which expressly notified him that the warnings that
followed were a prerequisite to any interrogation by her, and instead to assess in
isolation the adequacy of the warning concerning the third right. However, the
Supreme Court’s Miranda jurisprudence could not more clearly establish that the
adequacy of the warnings, as distinguished from the effectiveness of the defendant’s
waiver of the rights contained in them, is to be assessed objectively, for what the
warnings would “reasonably convey,” or would convey to a “reasonable suspect,” “in
their totality.” Powell, 559 U.S. at 61–63; Duckworth, 492 U.S. at 205. Unlike the focus
of his argument at the suppression hearing on the effectiveness of his waiver, the
defendant not only emphatically asserts in his presentation to us that his challenge on
appeal is limited to the adequacy of the warnings themselves, but he openly chastises
the People for even suggesting that he may intend to include in his assignment of error
a challenge to the effectiveness of his waiver. While characterizing the Miranda
warnings as “the formal little rights things” appears to be an attempt by the detective to


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minimize the significance of waiving those rights, and as the Supreme Court has noted,
law enforcement agencies run the risk of obtaining ineffective waivers by introducing
ambiguity into the Miranda advisement, Powell, 559 U.S. at 63–64, nevertheless
minimizing the significance of waiving the Miranda rights does not, in and of itself,
mean the rights have not been reasonably conveyed.

III.

¶16 In this jurisdiction we have long adhered to the rule that absent a specific
exclusion of some particular class of exhibits, trial courts exercise discretionary control
over jury access to trial exhibits during their deliberations. Frasco v. People, 165 P.3d
701, 704 (Colo. 2007) (referencing Wilson v. People, 84 P.2d 463 (Colo. 1938)). The trial
court in criminal proceedings has an obligation, much as it does with regard to the
admissibility of evidence generally, to assure that juries are not permitted to use
exhibits in a manner that is unfairly prejudicial. Id. While acknowledging that some
kinds of exhibits obviously have a greater potential for unfair prejudice than others, and
bearing in mind the wishes and tactical considerations of the parties, we have held that
trial courts must ultimately retain discretionary control over which jury exhibits will be
allowed to go to the jury room and under which, if any, restrictions. Id. at 705.

¶17 Although we also long ago rejected the ancient common law prohibition against
permitting writings not under seal to be taken into the jury room, Wilson, 84 P.2d 463,
the trial court’s responsibilities with regard to testimonial exhibits has, in light of
modern rules, not always been clear. See Frasco, 165 P.3d at 703–04 (tracing impact of
amendments to civil rules of procedure on appellate decisions concerning jury access to


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testimonial exhibits). In Frasco, however, by analogy to our jurisprudence concerning a
trial court’s obligations to protect against the undue emphasis by juries on particular
portions of trial transcripts during their deliberations, see Settle v. People, 504 P.2d 680
(Colo. 1972), we similarly admonished trial courts to oversee with caution jury use of
trial exhibits effectively substituting for trial testimony. Frasco, 165 P.3d at 704.
Without mandating time limitations on jury access or particular limiting instructions
concerning jury use of such exhibits, we nevertheless emphasized the trial court’s
obligation, at least where prompted to do so by a party, to exercise its discretion to
guard, as with jury review of specific trial testimony itself, against the risk that
testimonial exhibits will be given undue weight or emphasis. Id.

¶18 As we also explain today in Rael v. People, 2017 CO __, ¶¶ 25–35, ___ P.3d ___,
out-of-court statements of a party offered against that party have, however, never been
considered primarily testimonial in nature. Even for purposes of admissibility, the
Colorado Rules of Evidence, like the Federal Rules of Evidence on which they are
patterned, exclude such statements from the category of hearsay evidence and admit
them into evidence largely “as the result of the adversary system rather than
satisfaction of the hearsay rule.” Fed. R. Evid. 801(d)(2) advisory committee’s note. As
the sources for the federal committee note demonstrate, this broad notion of adversarial
fairness encompasses not only such considerations as the opposing party’s ability to
explain his own statements without their trustworthiness being tested through cross
examination or alternative indicia, but also that despite possibly having some narrative
value, a party opponent’s out-of-court utterances offered against him have probative


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force simply as non-verbal or non-narrative conduct, which is assertedly in conflict with
a position he takes at trial. John S. Strahorn, Jr., A Reconsideration of the Hearsay Rule
and Admissions, 85 U. Pa. L. Rev. 484, 564, 569–79 (1937); Edmund M. Morgan, Basic
Problems of Evidence 265–66 (1962); 4 John Henry Wigmore, A Treatise on the Anglo
American System of Evidence in Trials at Common Law § 1048 (2d ed. 1923).

¶19 Similarly, confessions or out-of-court statements by criminal defendants
sufficiently harmful to be offered into evidence by the prosecution have historically
been allowed into the jury room, even in jurisdictions permitting much less discretion
with regard to jury use of trial exhibits generally. See generally 2 Kenneth S. Broun,
McCormick on Evidence § 220 (7th ed. 2013) (majority rule allows jury access to
confessions); Jonathan M. Purver, Annotation, Permitting Documents or Tape
Recordings Containing Confessions of Guilt or Incriminating Admissions to be Taken
into Jury Room in Criminal Case, 37 A.L.R.3d 238 (1971) (updated 2012) (same). While
the various rationales for this disparate treatment of confessions may not always have
been articulated in precisely the same terms, they appear to share considerations similar
to those expressed in the concept of adversarial fairness. See, e.g., Flonnory v. State, 893
A.2d 507, 528 (Del. 2006) (quoting State v. Jennings, 815 S.W.2d 434, 440 (Mo. Ct. App.
1991), for proposition that this exception is “apparently based on the theory that the
centrality of such confessions to the case warrants giving the jury access to them during
deliberations”); State v. Castelli, 101 A. 476, 480 (Conn. 1917) (“If these writings were
harmful, it was not because any rule of procedure was violated, but because the accused
had furnished harmful evidence against themselves.”); see generally Broun, McCormick


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on Evidence § 220. Whether or not exclusion of confessions from the jury room was
actually prohibited, or allowing access was simply presumed in the absence of a strong
showing to the contrary, it has generally been recognized that confessions have
probative force other than as mere testimonial exhibits, like depositions or other out-of
court witness statements. See Flonnory, 893 A.2d at 527–29.

¶20 This court has not had occasion to address the treatment of written or recorded
confessions admitted as trial exhibits since we singled out for particular caution exhibits
substituting for trial testimony, but the court of appeals has. In People v. Gingles,
heavily relied upon by the division below, a different division of the court of appeals
considered both the in- and out-of-state treatment of confessions pre-dating our
decision in Frasco and concluded that our expression of caution in that case did not
evidence any intent to alter the historically disparate treatment of confessions. 2014
COA 163, ¶¶ 14–18, 350 P.3d 968, 971–72. In contrast to other witness statements, the
Gingles court found that a defendant’s confession could be used by the jury during its
deliberations, in large part because a confession’s “centrality in the case warrants
whatever emphasis may result.” Id. (quoting Broun, McCormick on Evidence § 220).

¶21 The court of appeals rightly discerned that in Frasco, in analogizing testimonial
exhibits to partial transcripts of actual trial testimony and in requiring the same
discretionary caution with regard to jury use of the former as of the latter, we had no
intention of including admissions of criminal defendants in the former category. In
addition to having probative force for reasons more related to the adversary process
than any narrative or testimonial value a defendant’s detrimental out-of-court


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statements may have, allowing the jury access to exhibits evidencing such statements
simply does not implicate the same danger of undue emphasis inherent in permitting
the jury access to some, but not all, of the testimonial evidence. Unlike testimonial
evidence, the accuracy and veracity of which must be weighed in conjunction with all of
the other admissible evidence, a criminal defendant’s out-of-court statement offered
against him has value primarily as demonstrative evidence of conduct on his part that is
contradictory of a position he takes at trial.

¶22 Much like questions concerning the order of evidence generally, at least in the
absence of specific statutes or rules requiring otherwise, trial courts necessarily retain
broad discretion concerning jury use of trial exhibits. Unlike jury access to testimonial
exhibits with regard to which we require the exercise of particular caution, however,
access to transcripts or recordings of the interrogations of criminal defendants does not
implicate the same concern for selective use or require the same exercise of caution.
While a trial court may find grounds to restrict a jury’s access to such exhibits under
particular circumstances, they would not typically be the same reasons that might lead
it to caution the jury concerning the use of, or limit its access to, testimonial exhibits.
¶23 Notwithstanding the defendant’s assertion to the contrary, the trial court in this
case did not abuse its discretion in allowing jury access to the videotape of the
defendant’s interrogation by failing to exercise any discretion at all, in the mistaken
belief that it had no discretion to exercise. Unlike People v. Jefferson, 2017 CO 25, ___
P.3d ___, where we found that the trial court abused its discretion by permitting jury
access to testimonial exhibits in reliance on considerations we had expressly found to be


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inappropriate, the trial court below entertained the defendant’s assertions of prejudicial
impact, distinguished the defendant’s interrogation from testimonial exhibits meriting
particular caution, and found that unrestricted access would not be unfairly prejudicial.
As an even clearer indication that the court exercised its discretion with regard to
permitting jury access to trial exhibits, upon request it further permitted the jury access
to a transcript of the interrogation but included a cautionary instruction requested by
the defendant.

¶24 Finally, the defendant’s assertion of prejudicial impact from permitting the jury
to review the police accusations, as distinguished from the defendant’s responses
themselves, appears to be more appropriately made as a challenge to the admission of
unfairly prejudicial evidence than to permitting undue weight to be given by the jury to
properly admitted evidence. If a recording of a police interrogation contains evidence
of uncharged crimes or otherwise inadmissible evidence, it must of course be redacted
before being admitted into evidence. Where, as in this case, the recording of an
interrogation has value as demonstrative evidence of the defendant’s capacity for
fabrication and self-preservation, rather than for any inculpatory admissions by the
defendant, its treatment as other than testimonial evidence, for purposes of jury access,
is, if anything, even more appropriate.

Outcome: