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     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
                                                           November 9, 2023
2023COA105

No. 21CA0886, People v. Munoz-Diaz — Constitutional Law —
Fifth Amendment — Fourteenth Amendment — Due Process —
Voluntariness of Statements

     A division of the court of appeals, applying established law to a

novel fact pattern, concludes that a defendant’s statements made to

a police officer over the phone while the defendant was in Mexico

were voluntary notwithstanding the officer’s assurance that he was

not going to Mexico to look for the defendant. In doing so, the

division distinguishes our supreme court’s recent decision in People

v. Smiley,
2023 CO 36
.
COLORADO COURT OF APPEALS
2023COA105


Court of Appeals No. 21CA0886
City and County of Broomfield District Court No. 15CR339
Honorable Sharon Holbrook, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ricardo Enrique Munoz-Diaz,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                Division II
                          Opinion by JUDGE TOW
                       Furman and Berger*, JJ., concur

           Prior Opinion Announced August 10, 2023, WITHDRAWN

                         Announced November 9, 2023


Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Joseph T. Goodner, Alternate Defense Counsel, Englewood, 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. 2023.
¶1    Defendant, Ricardo Enrique Munoz-Diaz, appeals his

 judgment of conviction entered on jury verdicts finding him guilty of

 felony murder, second degree murder, two counts of aggravated

 robbery, and two counts of burglary. We affirm.

                           I.    Background

¶2    Munoz-Diaz was suspected of killing his neighbor in her home,

 stealing her safe, selling her valuables, and then fleeing to Mexico.

 A detective was able to reach Munoz-Diaz in Mexico by phone.1

 During their recorded conversation, Munoz-Diaz admitted the

 homicide and the theft. He was then extradited to Colorado and

 charged with first degree murder after deliberation and numerous

 other crimes.

¶3    Pretrial, Munoz-Diaz moved to suppress the statements he

 made during the phone call, arguing that his admissions were

 involuntary and thus inadmissible under the United States and

 Colorado Constitutions. The district court denied the motion, and

 Munoz-Diaz’s statements were presented to the jury. Further, these

 statements led to the discovery of the victim’s purse, which was


 1 The transcript of the phone call is a translation.   Most of the
 original conversation was in Spanish.

                                    1
 near a hardware store where Munoz-Diaz had purchased a dolly he

 allegedly used to move the victim’s safe. The purse and surveillance

 footage of Munoz-Diaz purchasing the dolly were also presented to

 the jury.

¶4    Additionally, the People presented police testimony that four of

 the victim’s watches had been sold to pawnshops under

 Munoz-Diaz’s name. Munoz-Diaz’s former roommate and coworker,

 Bernabe Mares, also testified that Munoz-Diaz looked “violent” and

 “scared” on the day of the murder. And finally, the prosecution

 presented DNA evidence linking Munoz-Diaz to the crime scene.

¶5    At trial, Munoz-Diaz did not dispute that he killed his neighbor

 in her home and took her safe; rather, he sought to negate the

 element of intent by proving that he was intoxicated. The jury

 acquitted Munoz-Diaz of first degree murder after deliberation but

 found him guilty of felony murder, second degree murder, and other

 crimes related to the theft.

                   II.   Voluntariness of Statements

¶6    Munoz-Diaz contends that his statements over the phone were

 involuntary under the Fifth and Fourteenth Amendments to the




                                   2
 United States Constitution and article II, sections 18 and 25 of the

 Colorado Constitution. We disagree.

                     A.    Additional Background

¶7    Early in the phone call, the detective said, “I’m not going to

 look for you in Mexico. . . . I’m just telling you — you that you can’t

 come back here, okay? But I want you to please tell me what

 happened that day, and why.”

¶8    When the detective asked about the killing, Munoz-Diaz first

 responded that he had found his neighbor’s dead body when Mares

 had sent him to the victim’s trailer to retrieve a safe. However, after

 only a few pages of transcript, Munoz-Diaz admitted to the killing:

           DETECTIVE: Look, um, [Munoz-Diaz], I know
           that . . . you killed this girl. And please . . .
           just tell me what — what happened that day
           because I know that [Mares] sent you. And
           I . . . want to get [Mares] because he took
           advantage of — of you. And . . . I want to
           know because the family needs to know why,
           what happened. Okay?

           MUNOZ-DIAZ: Yes, I know that . . . .

           DETECTIVE: Just . . . think about the family,
           the children she left behind, this — this girl,
           and so this way God — God will forgive you.
           But — but first you need, uh, to help me with
           this.

           MUNOZ-DIAZ: Yes, I accept that I did it.

                                    3
¶9     Munoz-Diaz then recounted numerous details about the killing

  and consistently insisted that he was guilty. The detective tried to

  garner favor with Munoz-Diaz by making statements like, “you’re a

  good person and you made a mistake. Okay? But we want to find

  the people who are guilty for this” and “I know you’re not a killer.

  You didn’t want to do this.” Munoz-Diaz consistently responded

  with statements like, “But I’m guilty” or “But, well, I did it.”

¶ 10   Additionally, when the detective repeated that he was not

  interested in coming after Munoz-Diaz in Mexico, Munoz-Diaz

  consistently responded by saying that he was willing to pay for his

  acts. This happened twice:

             DETECTIVE: Tell me who helped you. I just
             want to talk to them — they — they didn’t do
             what you did, but I need to speak to them.
             Okay? Just — just tell me the truth, okay, like
             I told you, I’m not going over there to look for
             you nor . . . .

             MUNOZ-DIAZ: No, in fact I’m willing to pay for
             my — for my acts. . . .

             DETECTIVE: But, um, but I swear that I
             don’t — I don’t — I’m not going to go looking
             for you over there in Mexico. I am just, um,
             telling you that you can’t come back here. You
             understand me? And if you come back here,
             you’ll get arrested.



                                      4
             MUNOZ-DIAZ: Uh-huh. I know. Hey and I’m
             willing to pay for my — my doings.

  At one point, Munoz-Diaz even offered to return to Colorado, saying,

  “I want to clear this all up, if it’s even possible I’d go back there. It’s

  no problem . . . . To pay for my fault.”

¶ 11   The phone call ended with planning a future conversation, the

  detective thanking Munoz-Diaz, and Munoz-Diaz saying, “Don’t

  mention it[,] and I’m willing to cooperate.”

                          B.   Standard of Review

¶ 12   “A trial court’s suppression ruling presents a mixed question

  of fact and law.” People v. Ramadon,
2013 CO 68, ¶ 21
. We defer

  to the district court’s findings of historical fact if they are supported

  by the record, but we review de novo the legal effect of the facts.
Id.

  Further, “[w]hen the interrogation is audio or video-recorded, and

  there are no disputed facts outside the recording pertinent to the

  suppression issue, we are in the same position as the trial court in

  determining whether the statements should or should not be

  suppressed under the totality of the circumstances.”
Id.




                                      5
                             C.    Analysis

¶ 13   “Under the due process clauses of the United States and

  Colorado constitutions, a defendant’s statements must be voluntary

  to be admissible as evidence.” Id. at ¶ 18. It is the People’s burden

  to show, by a preponderance of the evidence, that a defendant’s

  statements were voluntary. People v. Bryant,
2018 COA 53, ¶ 20
.

¶ 14   In determining whether a statement was voluntary, courts

  consider the totality of the circumstances and focus on whether the

  officer’s behavior overcame the defendant’s will and brought about

  an inculpatory statement that was not “freely self-determined.”

  Ramadon, ¶ 20. Analyzing whether a statement was voluntary is a

  two-step inquiry, asking (1) whether the official conduct was

  coercive and (2) whether the coercive conduct “played a significant

  role in inducing the statements.”
Id.
 Both steps of this inquiry

  consider a wide range of nonexhaustive 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;


                                    6
            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;

            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.

  Cardman v. People,
2019 CO 73, ¶ 23
 (quoting People in Interest of

  Z.T.T.,
2017 CO 48, ¶ 13
).

¶ 15   The factors that weigh towards a holding of voluntariness are

  that Munoz-Diaz was not in custody during the phone call

  (factor 1); he was free to hang up and leave (factor 2); nothing

  prevented him from consulting with counsel before or during the

  telephone call (factor 6); Munoz-Diaz was in good physical condition



                                    7
  and, although he said he was “tormented,” his mental condition

  was good enough to be alert and responsive (factor 10); and the

  conversation occurred while Munoz-Diaz was at work and there is

  no evidence that his working conditions were poor (factors 12

  and 13).

¶ 16   Conversely, the factors that weigh towards involuntariness are

  that Munoz-Diaz was neither advised of nor did he waive his

  Miranda rights (factors 4 and 5); the police promised that they

  would not come after him in Mexico (factor 8); and the phone

  conversation was, as the trial court found, “lengthy” (factor 11).

¶ 17   There were also multiple factors that went both ways given the

  unique circumstances of this phone call. While Munoz-Diaz was

  arguably unaware (based on the detective’s promises) that the

  conversation could lead to extradition, he was told from the outset

  that the detective wanted to talk about the killing (factor 3).

  Munoz-Diaz’s admission was also made during the phone call;

  however, in the middle of the conversation the call was dropped and

  Munoz-Diaz answered the phone when the detective called back

  (factor 7). Finally, to the extent Munoz-Diaz interpreted the

  detective’s statement as a promise, the fact that a phone call was


                                     8
  the method used lent credibility to the detective’s representation

  that the police would not come after Munoz-Diaz in Mexico, but also

  made it easier for Munoz-Diaz to disengage and feel unthreatened

  (factor 9).

¶ 18    While the factors here are roughly split, we do not simply

  count the factors on each side; rather, we accord weight depending

  on the circumstances involved. Id. at ¶ 27.

¶ 19    We first acknowledge that some of the detective’s questioning

  was arguably coercive. At the outset of the phone call, the detective

  told Munoz-Diaz that, while Munoz-Diaz could not go back to

  Colorado without being arrested, the detective was not “going to

  look for [Munoz-Diaz] in Mexico.” This concept was repeated two

  more times throughout the conversation, and accordingly, the

  district court found that the detective promised Munoz-Diaz that he

  would not be extradited and that this promise was not followed.

  These purported promises “to avoid punishment or hardship” may

  have risen “to the level of coercion.” People v. Springsted,
2016 COA 188
, ¶ 35.

¶ 20    But, as noted, whether the police conduct was coercive is only

  half the inquiry. We must still determine if Munoz-Diaz’s


                                    9
  statements were “obtained by any direct or implied promises.”

  People v. Medina,
25 P.3d 1216, 1223
 (Colo. 2001) (emphasis

  added) (quoting People v. Gennings,
808 P.2d 839, 843
 (Colo.

  1991)).2 We thus must consider whether the detective’s actions

  here played a significant role in inducing Munoz-Diaz’s statements.

  In other words, the detective’s promises not to come after Munoz-

  Diaz in Mexico must have overcome Munoz-Diaz’s will. See

  Ramadon, ¶ 20. We conclude that they did not.

¶ 21   Rather than expressing any concern of extradition or arrest,

  Munoz-Diaz consistently assured the detective that he was “willing

  to pay for [his] acts,” even in response to the detective’s promises

  not to come after him Mexico.3 In fact, even though the detective

  said Munoz-Diaz could not return to Colorado without being


  2 In light of this requirement, we reject the People’s argument that

  there can only be an involuntary statement based on a promise if
  the police, quid pro quo, promise a lack of punishment in exchange
  for a confession. The People’s interpretation would effectively
  require all coercive promises to be express and clearly lay out the
  exchange as if it were consideration in a contract. But implied
  promises, “however slight,” may result in involuntary confessions.
  People v. Medina,
25 P.3d 1216, 1223
 (Colo. 2001) (quoting People
  v. Gennings,
808 P.2d 839, 843
 (Colo. 1991)).
  3 Munoz-Diaz responded that he was “willing to pay” for his actions

  two out of the three times that the detective promised not to come
  after him in Mexico.

                                    10
  arrested, Munoz-Diaz said, “I want to clear this all up, if it’s even

  possible I’d go back there. It’s no problem . . . . To pay for my

  fault.”

¶ 22    This case is thus unlike Cardman, ¶ 5, where the defendant

  responded to the detective’s promise that the case would “go away”

  with “I would love that” — thus clearly expressing a desire to not get

  in legal trouble. To the contrary, Munoz-Diaz expressly repeated

  that he was “willing to pay for [his] acts,” indicating that he made

  his statements despite the possible consequences of extradition and

  arrest.

¶ 23    While this case was pending, the Colorado Supreme Court

  decided People v. Smiley,
2023 CO 36
, which Munoz-Diaz asks us to

  consider as supplemental authority. That case, however, dealt not

  with the voluntariness of statements but, rather, with the

  voluntariness of a waiver of the right to remain silent. As the

  supreme court noted, “While these two forms of voluntariness are

  factually related, they are ‘analytically distinct.’”
Id.
 at ¶ 18

  (quoting People v. Jiminez,
863 P.2d 981
, 984 n.3 (Colo. 1993)).

  Thus, we believe Smiley has little, if any, bearing on this case.




                                      11
¶ 24   And even acknowledging that the analytical principles of the

  involuntariness analysis involving a waiver of the right to remain

  silent overlap with the analytical principles involving the

  voluntariness of a defendant’s statements, Smiley still provides

  Munoz-Diaz no assistance. In Smiley, the police affirmatively

  misled a homeless teenager in their custody. Id. at ¶ 44. No similar

  facts exist here, where Munoz-Diaz was not in custody, re-initiated

  the contact on his own, and was not affirmatively lied to by the

  police.

¶ 25   Additionally, we disagree that the detective’s other actions

  rendered Munoz-Diaz’s statements involuntary. First, the

  detective’s appeals to Munoz-Diaz’s religion and to the family’s need

  for closure did not rise to police coercion, instead implicating only

  “moral and psychological pressures to confess emanating from

  sources other than official coercion.” Berghuis v. Thompkins,
560 U.S. 370, 387
 (2010) (quoting Colorado v. Connelly,
479 U.S. 157, 170
 (1986)) (holding that detective’s question, “Do you pray to God

  to forgive you for shooting that boy down?” did not render the

  defendant’s statement involuntary); see also People v. Theander,
2013 CO 15, ¶ 44
 (concluding that “it was not coercive for police to


                                    12
  indicate . . . that [the defendant’s] children would want to know that

  [the defendant] had helped find their father’s killer”).

¶ 26   And, although the detective indicated the police were

  interested in alternate suspects, including Mares, Munoz-Diaz

  consistently responded by saying, “But I’m guilty.” First, “[p]loys to

  mislead a suspect or lull him into a false sense of security” do not

  necessarily “rise to the level of compulsion or coercion.” Illinois v.

  Perkins,
496 U.S. 292, 297
 (1990). And even if the detective’s

  suggestion that there was an alternate suspect qualified as coercive

  police conduct, we cannot say Munoz-Diaz’s statements were

  induced by these misleading statements because he consistently —

  and willingly — affirmed his own guilt in response.

¶ 27   We thus agree with the district court that the prosecution

  showed, by a preponderance of the evidence, that Munoz-Diaz’s

  statements were not brought about by coercive police conduct but

  rather were the product of his willingness — even desire — to “pay

  for his acts” and to “clear this all up.” In other words, his

  statements were freely self-determined and voluntary. See

  Ramadon, ¶ 20. The district court’s denial of Munoz-Diaz’s motion

  to suppress, therefore, was not error.


                                     13
                           III.   DNA Evidence

¶ 28   Munoz-Diaz next contends the district court reversibly erred

  by admitting DNA swabs into evidence without adequate

  foundation. Munoz-Diaz also argues, for the first time on appeal,

  that this introduction of unauthenticated evidence violated his

  rights to an impartial jury, to due process, and to confront the

  witnesses against him. Again, we disagree.

¶ 29   Even assuming that the district court abused its discretion by

  admitting the DNA swabs, which linked Munoz-Diaz to the scene of

  the crime, there was overwhelming independent evidence of

  Munoz-Diaz’s guilt. See Pernell v. People,
2018 CO 13, ¶¶ 25-27

  (concluding error was harmless when there was overwhelming

  independent evidence of defendant’s guilt); see also People v. Clark,
2015 COA 44, ¶ 14
 (reviewing evidentiary rulings for abuse of

  discretion). As noted, Munoz-Diaz admitted to the killing, his

  statements led to the discovery of the victim’s purse, and

  surveillance footage showed Munoz-Diaz buying a dolly to move the

  safe. Further, police found that the victim’s stolen watches had

  been pawned in Munoz-Diaz’s name. Moreover, at trial, Munoz-

  Diaz did not dispute that he was at the crime scene or committed


                                    14
  the killing, arguing only that he did not form the requisite intent for

  first degree murder after deliberation. (And the jury accepted that

  argument.) The admission of DNA evidence linking Munoz-Diaz to

  the crime scene was thus harmless given Munoz-Diaz’s defense and

  the overwhelming amount of independent evidence indicating he

  was guilty.

¶ 30   As for Munoz-Diaz’s unpreserved constitutional arguments, for

  similar reasons, we do not believe the admission of the DNA

  evidence “so undermined the fundamental fairness of the trial itself

  so as to cast serious doubt on the reliability of the judgment of

  conviction.” Hagos v. People,
2012 CO 63
, ¶ 14 (quoting People v.

  Miller,
113 P.3d 743, 748-50
 (Colo. 2005)) (holding that, under plain

  error review, “the error must impair the reliability of the judgment

  of conviction to a greater degree than under harmless error to

  warrant reversal”).

                             IV.   Disposition

¶ 31   The judgment of conviction is affirmed.

       JUDGE FURMAN and JUDGE BERGER concur.




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