September 16, 2014

Colorado Court of Appeals: Parental Consent Not Required for Victim to Consent to Recorded Phone Conversation

The Colorado Court of Appeals issued its opinion in People v. Richardson on Thursday, April 24, 2014.

Motion to Suppress Statements—Challenge for Cause.

Until the victim, C.S., was almost 12 years old, he lived with his great-grandmother. Defendant, the great-grandmother’s brother, often visited the home. When the victim was 11 years old, defendant inappropriately touched the victim and then progressed to performing oral sex on the victim.

Defendant was arrested and, after waiving his Miranda rights, substantially admitted the victim’s allegations regarding sexual contact. He subsequently was charged with and found guilty of sexual assault on a child, sexual assault on a child by a person in a position of trust, and sexual assault on a child as part of a pattern of abuse.

On appeal, defendant contended that the trial court erred in denying his motion to suppress the statements he made during his phone conversation with the victim, which were recorded by the police. Contrary to defendant’s argument, however, parental presence was not required for the victim’s consent to record the conversation with defendant to be valid.

Defendant also contended that the trial court erred when it denied his motion to suppress the statements he made during a custodial interrogation. The record supports the trial court’s finding that defendant did not unequivocally invoke his right to silence. Accordingly, the trial court did not err in denying defendant’s motion to suppress.

Defendant further contended that the trial court erred in denying his challenge for cause to Juror M. On her juror questionnaire, Juror M indicated that a relative had been the victim of a sexual assault, and that this would affect her ability to be a fair and impartial juror. She also wrote that she believed she could not be a fair and impartial juror because the case involved “a crime against a child.” The court thereafter questioned Juror M, who affirmed that she understood that the prosecution carried the burden of proof, and that she would listen to all the evidence and base her decision on the evidence despite her background. Therefore, the trial court did not abuse its discretion in denying defendant’s causal challenge to Juror M.

Summary and full case available here.

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