author: STEWART, Judge.

text:
    Michael W. SPROATES, Petitioner, v. STATE of Alaska, Respondent.
    No. A-8495.
    Court of Appeals of Alaska.
    Dec. 12, 2003.
    David D. Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

Under Alaska Criminal Rules 5(e)(2), 5(e)(d), and 5.1, a defendant who has been charged with a felony but who has not yet been indicted by the grand jury is entitled to a preliminary examination in the district court. If the defendant is in custody, this preliminary examination is to be held within the ten days following the defendant's initial appearance; if the defendant is not in custody, twenty days are allowed.

The purpose of the preliminary examination is to determine whether there is good cause to maintain the court's criminal jurisdiction over the defendant-either by holding the defendant in custody or by requiring the defendant to abide by conditions of release imposed under AS 12.80.020-029. If the State establishes probable cause to believe that the defendant has committed a criminal offense, the district court will continue its criminal jurisdiction over the defendant-i.e., hold the defendant to answer to the grand jury. If the State fails to establish probable cause, then the defendant is to be discharged from custody and freed from any conditions of release-although this does not prevent the State from presenting the case to the grand jury.

In the present case, Michael W. Sproates was charged by complaint with three counts of first-degree sexual abuse of a minor, a felony offense. Sproates was unable to post bail, so he remained in custody following his arrest. Sproates's initial appearance took place on December 12, 2002. At that time, the district court scheduled Sproates's preliminary examination for 3:45 p.m. on December 20, 2002-a day that fell within the ten-day time limit for defendants in custody.

But when the parties appeared in court for the scheduled preliminary examination, the prosecutor informed the magistrate that the State was presenting Sproates's case to the grand jury that same day. At the prosecutor's request, the magistrate agreed to delay the preliminary examination until 5:30 that afternoon.

When Sproates's attorney appeared for the 5:30 preliminary examination, the magistrate informed the attorney that he had heard (informally) that the grand jury had indicted Sproates, although the grand jury had not yet presented its indictment in the superior court. Because of the grand jury's action, the magistrate refused to hold Sproates's preliminary examination, or even to go on record to announce that no hearing would be held. The magistrate declared that, because of the grand jury's action, he believed that the district court no longer had any jurisdiction over Sproates's case. Sproates's attorney asked that Sproates be released from custody since no preliminary examination had been held, but the magistrate refused to release Sproates.

The grand jury had in fact voted to indiet Sproates on the afternoon of December 20th, but this indictment was not "returned"-4.e., presented in an open session of the superior court -until December 24th.

The question in this case is whether Sproates was entitled to be discharged from custody when the magistrate declined to hold Sproates's preliminary examination and the State presented no evidence that Sproates had committed an offense. We conclude that Sproates was entitled to be released, and that he was unlawfully held in custody for the four days between the aborted preliminary examination and the return of the indictment in the superior court. We further conclude that, even though this issue is moot in Sproates's case, we should decide the issue because it is an important question that might otherwise evade review.

As we have already explained, an unindict-ed defendant who is held in custody on a felony charge is entitled to a preliminary examination within ten days. If, at the close of the preliminary examination, the State has failed to establish probable cause to hold the defendant, the defendant must be discharged. In Sproates's case, the State declined to present any evidence to justify Sproates's continued detention; moreover, the magistrate declared that the district court had lost its authority to conduct the preliminary examination at all.

In its brief to this Court, the State now concedes that the magistrate was "mistaken [in his] belief that [the district court] lacked jurisdiction" to hold a preliminary examination. That is, the State concedes that the district court continued to have jurisdiction over Sproates until the grand jury formally presented its indietment to the superior court on December 24th.

Nevertheless, the State asserts that Sproates was not entitled to release on December 20th. The State points out that, under Criminal Rule 5(e)(4)(A), the district court has up to ten days to hold the preliminary examination of a defendant who is in custody. From this, the State infers that the district court can refuse to hold a scheduled preliminary examination, so long as the ten-day maximum time limit has not yet been exceeded. In other words according to the State, a defendant can automatically be held in custody for ten days without a showing of probable cause.

But Criminal Rule 5(e)(4)(A) does not say this. The rule declares that the defendant's preliminary examination "shall be held within a reasonable time," and it sets an outer limit to the definition of "reasonableness"-4.e., "in no event later than ... 10 days." Here, Sproates's preliminary examination was scheduled for December 20th (the eighth day following his initial appearance), and no one has suggested that this scheduled date was unreasonable. Accordingly, the district court was not at liberty to simply ignore the scheduled hearing and wait for the ten-day maximum time limit to expire. Instead, the district court was obliged to hold the preliminary hearing as scheduled, absent a request to continue the hearing to a later time within the allotted ten days or to a time outside the ten-day limit if "extraordinary cireumstances [made a further] delay ... indispensable to the interest of justice."

The State argues that, even though the magistrate was mistaken about the district court's purported lack of jurisdiction, the magistrate's refusal to hold Sproates's preliminary examination was nevertheless consistent with Criminal Rule 5(e)(4) because extraordinary cireumstances required a delay of the hearing. The State contends that, because the grand jury had voted to indict Sproates, the scheduled preliminary examination became "essentially superfluous," and the district court would have endangered the public if the court had released Sproates on the 20th.

There are two problems with this argument. First, the prosecuting attorney never asked the magistrate to delay Sproates's preliminary examination on this basis (that is, delay the examination until the grand jury had a chance to return its indietment in open court), and thus the magistrate never ruled on this issue. Instead, as we have explained, the magistrate simply refused to hold any proceedings at all, having erroneously concluded that the grand jury's vote had deprived the district court of all jurisdiction.

Second, the State's argument does not rest on a claim of "extraordinary cireumstances." Rather, it rests on cireumstances that will predictably occur again and again: a grand jury votes to indict a defendant at approximately the same time as the defendant's scheduled preliminary examination, but the indictment is not returned in the superior court until a later day.

This situation does not justify a deviation from the normal law governing preliminary examinations. Rather, the correct solution to this problem is illustrated by the facts of Buchanan v. State. In Buchanan, when the parties appeared in court for the defendant's scheduled preliminary examination, the prosecutor announced that the State was about to present Buchanan's case to the grand jury-and that, for this reason, the State would decline to present any evidence at the preliminary examination. Upon hearing the prosecutor declare that the State would not present any evidence to establish that Buchanan was guilty of a eriminal offense, the district court dismissed the charges against Buchanan and released him from custody.

We conclude that this is the result mandated by Criminal Rule 5.1. If, in civeumstances similar to Sproates's case, the State believes that the release of a particular defendant would be inconsistent with the public safety, the State has two ready options: either (1) present evidence of the defendant's guilt at the preliminary examination, or (2) schedule the grand jury hearing so that the indictment can be returned before the defendant's scheduled preliminary examination. In addition, when cireumstances present a true emergency, the State can ask the district court to delay the preliminary examination past the time limit specified in Criminal Rule 5(e)(4), to give the grand jury additional time to consider the defendant's case and return its indietment in the superior court.

But the district court violated Criminal Rules 5(e) and 5.1 in Sproates's case when, in the absence of a request for a continuance, the court declined either to hold the preliminary examination or to order Sproates discharged from custody. As a result, Sproates was illegally imprisoned between the afternoon of December 20th and the time the grand jury presented its indictment to the superior court on December 24th.

The action of the district court is DISAPPROVED.

      . Alaska R.Crim. P. 5(e)(4).

      . See Alaska R.Crim. P. 5.1().

      . See Alaska R.Crim. P. 5.1(b).

      . AS 11.41.434(a)(2).

       . See Alaska R.Crim. P. 6(1)(2) & (@)(3)G).

      . See State v. Roberts, 999 P.2d 151, 153 (Alaska App.2000).

      . Alaska R.Crim. P. 5(e)(2), 5(e)(4).

      . Alaska R.Crim. P. 5.1(b).

      . Alaska R.Crim. P. 5(e)(4)(4).

      . See Alaska R.Crim. P. 5(e)(4).

      . 561 P.2d 1197 (Alaska 1977).

      . Id. at 1208.

      . Id.


source: Caselaw Access Project

author: COATS, Chief Judge.

license: Public Domain

text:
    Ronald SMITH, Appellant, v. STATE of Alaska, Appellee.
    No. A-8017.
    Court of Appeals of Alaska.
    Dec. 12, 2003.

      Averil Lerman, Assistant Public Advocate, and Brant McGee, Public Advocate, Anchorage, for Appellant.
    John A. Seukanee, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

A jury convicted Ronald Smith of murder in the second degree, robbery in the first degree, and assault in the first degree. Superior Court Judge Larry Weeks sentenced Smith to a composite term of 85 years. Smith appeals, raising several issues. In his main issue on appeal, Smith contends that Judge Weeks erred in admitting the hearsay statements of Zachary Brown. Smith contends that Brown's statements were inadmissible hearsay and that admission of the statements violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution and under Article 1, Section 11 of the Alaska Constitution. We agree with Smith that Brown's statements were erroneously admitted and reverse his convictions.

Factual background

The grand jury charged Smith and Rey Soto with the second-degree murder of Kenneth Thomas, the first-degree assault of Alfred Torres, and robbery in the first-degree.

Torres and Thomas lived in a trailer home in an area known as "The Village" in Juneau, Alaska. In the early morning hours of January 25, 2000, Torres testified that he, his girlfriend Stephanie Sanders, Thomas, and a friend, Mark Paddock, were watching a movie when they heard a knock at the door. Torres testified that after he unlocked and opened the door, a black man (later deter: mined to be Smith) wearing a ski mask and dark-colored clothes, rushed through the door pointing a silver pump-action shotgun at him. Torres testified that another man (later determined to be Soto) followed Smith wielding a baseball bat.

Torres stated that as he tried to grab the shotgun and wrest it from Smith, Soto hit him with the bat. As Torres and Smith struggled, Thomas ran to help Torres and Soto hit Thomas in the head. Torres attempted to run away, but according to Torres, Smith caught him and beat him with the shotgun. At this point, according to Torres, Smith ordered Torres and the other occupants of the trailer to give him "money and stuff." Torres testified that he complied and gave Smith his wallet containing $20 and a coffee mug containing approximately six grams of marijuana. Smith and Soto left and Torres and Paddock witnessed a dark car leave the area.

Torres and his friends then took Thomas to the hospital. On the way, they observed the dark car, noted the license number and reported the incident to the police. Thomas died at the hospital from a massive skull fracture. Torres suffered a dislocated shoulder, head lacerations, and a possible concussion.

Based on the report, the police stopped Smith and Soto's car and arrested them. The police found a baseball bat, two ski masks, a small baggie containing marijuana, and a blood spattered-coffee mug. The shotgun was not found in the car. Based on a tip, the police later located the shotgun in the woods. Smith and Soto had blood on their clothing and shoes and some currency found in Soto's pocket had blood on it as well. Alaska State criminalist Abirami Chidambar-am testified that the blood on Smith's and Soto's clothing, the bat, the coffee mug, and the currency from Soto's pocket matched the DNA profiles of Thomas and Torres.

Smith initially denied any involvement in the crime and stated that he knew nothing about the shotgun or the ski masks. When asked about the blood on his clothing, Smith told the Juneau Police Department that he had been in a fight a couple of days before and had not changed his clothes.

At trial, Smith testified that he did not go to Torres's residence to rob, but to purchase marijuana. He claimed he and Soto did not bring a shotgun, a bat, or wear ski masks. He went to The Village to buy a gram of marijuana from Torres for $25. According to Smith, after Torres offered the baggie of marijuana to him, he protested because he believed the baggie did not contain a full gram of marijuana. At this point, Torres left the door of the trailer, apparently to get more marijuana. When Torres returned, carrying a baseball bat, Smith testified that Torres was singing a nursery rhyme, "something like, 'my darling dearest adorable one, now you must pay for the shit you have done,' " and proceeded to attack Smith with the bat. Smith testified that the bat belonged to Torres. Smith testified that in the course of defending himself, he wrested the bat from Torres and tossed it aside. Soto then picked the bat up and struck Thomas. Smith stated that he and Torres exchanged blows until he and Soto retreated to the car and left.

Soto testified similarly. Specifically, Soto testified that he went to Smith's aid when he witnessed Torres and Thomas attack Smith. Soto claimed he hit Thomas with the bat in self defense because Thomas was running at him. Soto testified that he retreated to the car with his bat and kept the bat so that neither he nor Smith could be attacked with it. Soto also denied that he and Smith wore ski masks or had a shotgun.

The jury convicted Smith and Soto of murder in the second degree, robbery in the first degree, and assault in the first degree.

Zachary Brown's hearsay statements

At trial, the State sought to admit statements that an unavailable witness, Zachary Brown, allegedly made to his girifriend, Caroline Gerken. According to Gerken, she had a private conversation with Brown on January 25, 2000, between 2:00 and 4:00 p.m. (The incident that led to the robbery, murder, and assault charges took place during the early morning hours of January 25, 2000.) According to Gerken, she told Brown that she was concerned about him because of the police crime seene tape that she had seen near his residence. Brown told her that he had spoken to the police earlier in the day. Gerken then testified that she asked Brown if he knew anything about the investigation. She testified:

A. He said that he was woken up about 4:15, 4:30 in the morning by Rey [Soto] and Ron [Smith], and they asked if they could borrow his shotgun for a minute. They said they'd be back in five minutes, and left. He took all the bullets out of it, and they left. Then-exceuse me-he remembered them coming back around 5:00 . or so and just left it, and they left right away.
Q. Okay. He remembered that they came back at 5:00 and you said just left it.
A. Yeah, they just put it back against the wall.
Q. And then what did he say?
A. He fell back to sleep, and woke up in the morning, looked at his gun, said he saw what appeared to be dried blood, just very, very few splatters on it, on the gun, and he got really freaked out and scared, didn't know what happened, and he cleaned the gun.

Gerken then testified that Brown told her that he took the pistol grip off the gun and disposed of it in the channel. Gerken stated that Brown had told her that "Kyle [Nalan] had offered to say that he was there when they came in to get the gun, and he agreed." According to Gerken, Brown stated that because Nalan had offered to say that he had been present, Brown was also going to say that Nalan had been present.

Later in the day Gerken spoke to Nalan. Nalan told Gerken that, although he had not been present at Brown's residence when Smith and Soto had allegedly obtained the shotgun, he was going to testify that he had been at Brown's residence, slept on the couch, and had witnessed the incident. Gerken testified that she did not know if Brown knew Torres or Thomas.

At trial, Nalan testified that he was present when Smith and Soto picked up the shotgun. David Shaw, who identified himself as a friend of Nalan's, testified that Nalan told him that he had not been present at Brown's residence when Smith and Soto allegedly picked up the shotgun.

Upon the State's motion, the superior court admitted Brown's statements at trial as declarations against interest under Evidence Rule 804(b)(8). Declarations against interest are not excluded by the hearsay rule if the declarant is unavailable and the statement "was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or eriminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."

Brown was unavailable because he exercised his Fifth Amendment right to not testify. The State contends that Brown's statements that he gave the shotgun to Smith and Soto shortly before they used the weapon in the robbery and homicide and that he later cleaned the blood from the weapon and hid it, qualified as statements against interest. The State argues that Brown would not have admitted giving Smith and Soto the shotgun shortly before their alleged erimes and would not have admitted disposing of evidence unless these statements were true. According to the State, Brown's statement that he had given the shotgun to Smith and Soto put him at risk of being charged as an accomplice to the crimes. Brown's statement that he subsequently cleaned and disposed of the shotgun would subject him to being charged with tampering with physical evidence.

A problem with the State's contention that Brown's statements were a declaration against interest is that Brown's statements that Smith and Soto were the people who picked up the shotgun does not appear to be necessary to make Brown's statements a declaration against interest. For example, had Brown stated that he gave the shotgun to Torres (or anyone else involved) shortly before the incident, that statement would similarly have been against Brown's interest. Therefore, it does not appear that the part of Brown's statement identifying Smith and Soto as the people who picked up the shotgun and then returned it would qualify as a declaration against interest.

It is true that the other portions of Brown's statement about removing the pistol grip off the gun and disposing of it in the channel clearly subjected him to a charge of tampering with physical evidence, as did his statement that after waking up and discovering his gun had dried blood splatters on it, he cleaned the gun. However, in evaluating a declarant's statements, courts must view the statements separately and sever a declarant's non-inculpatory statements before a court admits a declarant's inculpatory statements under Rule 804(b)(3).

The United States Supreme Court construed Federal Rule of Evidence 804(b)@8), the federal counterpart to Alaska Evidence Rule 804(b)(8) in Williamson v. United States, and concluded that courts should "not just assume for purposes of Rule 804(b)(3) that a statement is self-inculpatory because it is part of a fuller confession, and this is especially true when the statement implicates someone else." In explaining the limits of its decision, the Court noted, however, that "whether a statement is self-inculpa-tory or not can only be determined by viewing it in context. Even statements that are on their face neutral may actually be against the declarant's interest." Many states have followed Williamson, but Alaska has never expressly adopted its holding. Assuming arguendo that the Williamson rule is applicable in Alaska, nonetheless, when viewed in context with Brown's other statements, Brown's statement identifying Smith and Soto is still not against his interest for the reasons previously stated. In sum, we conclude that the superior court abused its discretion in admitting the portion of Brown's hearsay statements identifying Smith and Soto as the ones who borrowed the shotgun.

We must also examine Brown's statements under the Confrontation Clause. Both the federal and state constitutions guarantee a defendant's right to confront the witnesses against him.

Under the {[Clonfrontation [Cllause, a hearsay statement is admissible against the accused "only if it bears adequate 'indi-cia of reliability' Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness."

Declarations against interest are not a "firmly rooted hearsay exception." In order to admit hearsay statements under the Confrontation Clause a court must find that the "statements were so inherently reliable that cross-examination would have been superfluous."

Looking at Brown's statements in context, Brown's statements do not meet that standard. As we have previously pointed out, the portion of Brown's statement identifying Soto and Smith as the people who picked up the shotgun does not qualify as a statement against interest. Furthermore, the part of Brown's statement about Nalan undermines the reliability of Brown's statement. According to Gerken's account of Brown's statement, it appears that Brown suggested that Nalan was going to lis and say that Nalan had been present when Smith and Soto had allegedly picked up the shotgun. If giving Smith and Soto the shotgun was against Brown's interest, why would Nalan falsely corroborate that Brown had done an act which the State argues subjected Brown to being charged as an accessory? The State could argue that perhaps Brown and Nalan wanted to minimize Brown's willingness to give Smith and Soto the shotgun. Smith would probably want to argue that Brown wanted Nalan to lie because the incident never happened and Brown was trying to frame Smith and help Torres. But that portion of Brown's statement that Nalan was going to falsely claim he witnessed the shotgun transfer at least suggests that Brown was not being entirely candid about the incident and demonstrates that Brown's statements were not "so inherently reliable that cross-examination would have been superfluous."

Furthermore, the relationships between Brown, Smith, Soto, Thomas, and Torres do not show that Brown did not have a motive to make a false statement implicating Smith and Soto. Smith presented some evidence that suggested that Brown was frequently at the residence of Thomas and Torres and was therefore acquainted with them. Although Torres denied that he knew Brown, Torres's testimony regarding Brown conflicted with Deborah Schorr's testimony. Schorr testified that she was a defense investigator and that during the course of her investigation, Crystal Ann Williams informed her that Brown was always over at Torres's trailer, suggesting that perhaps Torres did know Brown and that Torres and Brown might be friends. Williams testified that she did not know if Brown knew Torres and Williams. Gerken testified that Brown was unemployed and was apparently dealing drugs out of his apartment. So apparently Brown, Thomas, and Torres, as well as Smith and Soto, were involved in dealing drugs. The facts suggest that the statements that Brown allegedly made to Gerken were not so inherently reliable that they should have been admitted without allowing Smith the opportunity to cross-examine Brown. Consequently, we conclude that the superior court violated the Confrontation Clause when it admitted Brown's hearsay statements.

The State argues that Smith did not properly object to Gerken's proposed testimony. But the record reveals that Smith did object to Gerken's proffered testimony about Brown's statements and argued that the testimony was not admissible as a declaration against interest and the statements could not be admitted because Smith did not have the opportunity to confront and cross-examine Brown regarding his statements. Smith's objection was sufficient to preserve his claim.

The State also argues that admission of Brown's hearsay statement was harmless error. But Brown's hearsay statements were admitted in violation of Smith's constitutional right to cross-examine the witnesses against him. Since the evidence was admitted in violation of Smith's constitutional rights, we cannot uphold Smith's convictions unless we find that the error was harmless beyond a reasonable doubt. Under this standard, we are unable to find that the error was harmless.

The central conflict in the case was whether Smith and Soto went to the trailer to rob the inhabitants or whether Smith and Soto acted in self-defense when Torres attacked them. A central part of the State's theory that Smith and Soto intended to commit a robbery was that Smith and Soto went to the trailer wearing ski masks and armed with a shotgun and a baseball bat. The people present at the residence testified that Smith and Soto went to the trailer so armed and wearing ski masks. Smith and Soto testified that they were not wearing ski masks and did not bring any weapons. Therefore, Brown's statement that, shortly before the incident, Smith and Soto came to his residence and borrowed the shotgun, returning it a short time later, was significant evidence in support of the State's theory. If Smith and Soto did borrow the shotgun from Brown, it contradicted their testimony and tended to show that they had gone to Torres's trailer intending to commit a robbery.

The State argues that Brown's hearsay statement was not significant because Kyle Nalan testified that Smith and Soto obtained the shotgun from Brown shortly before the incident. It is true that Kyle Nalan testified that he was present when Smith and Soto obtained the shotgun from Brown. But Smith undermined Nalan's testimony by presenting evidence that Nalan lied about being present. A jury might therefore have had questions about Nalan's credibility.

Smith also presented evidence which placed in question the State's physical evidence that supported the State's theory that Smith and Soto went to Torres's residence to commit a robbery. Kathleen Mazon testified that two weeks prior to the incident she had observed a baseball bat inside Torres's trailer. This supports the defense theory that the baseball bat belonged to Torres and that Torres took the baseball bat from his trailer before he attacked Smith. Also contrary to testimony provided by the State's witnesses, Smith's and Soto's testimony that they were not wearing ski masks was similarly supported by the physical evidence. Alaska State Criminalist Kristin Denning analyzed the ski masks the police found in the car immediately after the incident and testified that the ski masks did not contain any hair or other DNA evidence identifying Smith or Soto. Denning also testified that Smith's clothing and jacket were covered with blood and blood splatter from the altercation, but the ski masks did not have any blood on them. Denning also testified that there was no blood on the shotgun and it did not appear to have been cleaned-thus supporting the defense theory that Smith or Soto did not bring a shotgun to the trailer or use a shotgun during the altercation.

Consequently, Brown's hearsay testimony that Smith and Soto obtained the shotgun from him shortly before the incident might have been critical to the jury in deciding whether Smith and Soto armed themselves before going to Torres's residence. We are therefore unable to find that the erroneous admission of Brown's hearsay statement was harmless error beyond a reasonable doubt.

Conclusion

We accordingly conclude that Smith's convictions must be reversed.

REVERSED.

      . AS 11.41.110(a)(2),(3).

      . AS 11.41.500(a)(3).

      . AS 11.41.200(a)(1).

      . ARE. 804(b)(3).

      . See Williamson v. United States, 512 U.S. 594, 600-03, 114 S.Ct. 2431, 2435-37, 129 L.Ed.2d 476 (1994).

      . AS 11.56.610(a)(1).

      . Williamson, 512 U.S. at 602-03, 114 S.Ct. at 2436-37.

      . 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994).

      . Id. at 601, 114 S.Ct. at 2435.

      . Id. at 603, 114 S.Ct. at 2436.

      . See, eg., State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996); People v. Duarte, 24 Cal.4th 603, 101 Cal.Rptr.2d 701, 12 P.3d 1110 (2000); State v. Schiappa, 248 Conn. 132, 728 A.2d 466 (1999); Smith v. State, 647 A.2d 1083 (Del.1994); Brooks v. State, 787 So.2d 765 (Fla.2001); Gabow v. Commonwealth, 34 S.W.3d 63 (Ky.2000); State v. Lucky, 755 So.2d 845 (La.1999); State v. Matusky, 343 Md. 467, 682 A.2d 694 (1996); State v. Dukes, 544 N.W.2d 13 (Minn.1996); Williams v. State, 667 So.2d 15 (Miss.1996); State v. Sheets, 260 Neb. 325, 618 N.W.2d 117 (2000); State v. Benavidez, 128 N.M. 261, 992 P.2d 274 (1999); People v. James, 93 N.Y.2d 620, 695 N.Y.S.2d 715, 717 N.E.2d 1052 (1999); Commonwealth v. Robins, 571 Pa. 248, 812 A.2d 514 (2002); State v. Pacheco, 763 A.2d 971 (R.I.2001); State v. Fuller, 337 S.C. 236, 523 S.E.2d 168 (1999); State v. Roberts, 142 Wash.2d 471, 14 P.3d 713 (Wa.2000); State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995); Johnson v. State, 930 P.2d 358 (Wyo.1996). But see People v. Newton, 966 P.2d 563 (Colo.1998); State v. Hills, 264 Kan. 437, 957 P.2d 496 (1998); State v. Sonthikoummane, 145 N.H. 316, 769 A.2d 330 (2000); Chandler v. Commonwealth, 249 Va. 270, 455 S.E.2d 219 (1995).

      . U.S. Const. amend. VI; Alaska Const. art. I, § 11.

      13. Linton v. State, 880 P.2d 123, 129 (Alaska App.1994) (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980).

      . Lilly v. Virginia, 527 U.S. 116, 134, 119 S.Ct. 1887, 1899, 144 L.Ed.2d 117 (1999); Porterfield v. State, 68 P.3d 1286, 1291 (Alaska App.2003).

      . Lilly, 527 U.S. at 139, 119 S.Ct. at 1901.

      . See Linton, 880 P.2d at 128 n. 5.

      . See Wyatt v. State, 981 P.2d 109, 112 (Alaska 1999).


author: Justice BENDER Justice COATS,

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John Mario MINJAREZ, Defendant-Appellee.
    No. 03SA219.
    Supreme Court of Colorado, En Banc.
    Dec. 15, 2003.

      (GF. Sandstrom, District Attorney for the Tenth Judicial District, Karl S. Tameler, Deputy District Attorney, Robert R. Case, Deputy District Attorney, Pueblo, Colorado, Attorneys for Plaintiff-Appellant.
    David S. Kaplan, Colorado State Public Defender, Thomas B. Flesher, Deputy State Public Defender, Pueblo Regional Public Defender, Pueblo, Colorado, Attorneys for Defendant-Appellee.
   Justice BENDER

delivered the Opinion of the Court.

Introduction

In this interlocutory appeal, filed pursuant to C.A.R. 4.1, the prosecution challenges the trial court's order suppressing statements made by the defendant to police officers during an interview at Children's Hospital in Denver, and statements subsequently made by the defendant to his wife in the officers' presence. The trial court held that all of the defendant's statements were elicited from the defendant in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We affirm in part and reverse in part. We hold that the defendant was in custody for Miranda purposes when he was questioned by the police officers and thus affirm the order of the trial court suppressing those statements. We also hold that the defendant was not subject to interrogation when he spoke to his wife in the officers' presence after the interview was over, and thus we reverse the trial court's order with respect to those statements.

Facts and Froceedings Below

On November 17, 2002, the defendant, John Mario Minjarez, placed a 911 call during which he reported that his infant daughter, Juanita Minjarez, was not breathing. Police and emergency personnel arrived at the home and found the infant severely injured. She was taken to a local hospital and subsequently transferred to Children's Hospital in Denver. The defendant was questioned several times at his home by members of the Pueblo Police Department, including Detective Patsy Archuleta, who is the lead detective in this case. At that time, the defendant claimed the infant was injured when his one-year-old daughter accidentally knocked over the seat in which the infant was sitting, causing the infant to fall six inches and hit her head.

The following day, Detective Archuleta received information from Dr. Sirotnik, the treating physician at Children's Hospital, that the infant's injuries were not consistent with accidental injury. Rather, the extent and severity of her injuries suggested the infant had been shaken or subject to some other non-accidental trauma. Based on this and other information, Detective Archuleta obtained a warrant for the defendant's arrest. Later that day, Dr. Sirotnik called Detective Archuleta to inform her that the defendant was at the hospital.

Detective Archuleta told Dr. Sirotnik that she was coming to Denver to arrest the defendant. She then drove with Officer Raymond Purvis from Pueblo to Denver to execute the warrant. After a two-hour drive, they arrived at Children's Hospital at approximately 6:00 p.m. Detective Archuleta had the warrant for the defendant's arrest in her pocket. The officers asked nurses in the neonatal ICU, where the infant was being treated, to provide them a room where they could speak to the defendant privately, and asked the nurses to bring the defendant to them. Detective Archuleta testified that she requested a private room to avoid creating a disturbance when the defendant was taken into custody.

The nurses showed Detective Archuleta and Officer Purvis into a meeting room a short distance from the area where the infant was being treated. The room had a long conference table and several chairs. After the defendant was taken to the interview room by the nurse, he sat down at the officers' request. The defendant was seated in a chair away from the door, and Detective Archuleta and Officer Purvis sat between him and the door. Once the defendant was shown to the room, the nurse closed the door, which remained closed throughout the interview. At no time during the interview was anyone else admitted to the room.

Officer Purvis and Detective Archuleta testified that the defendant cried on and off while he was questioned and that initially they could see he was emotionally distraught. The officers began to question the defendant immediately after he was admitted to the room. Officer Purvis testified that he told the defendant he was free to go at any time, and Detective Archuleta testified that she told the defendant he didn't have to say anything. At no time during the interview was the defendant advised of his Miranda rights or informed of the existence of the warrant.

Officer Purvis began the questioning in a conversational tone, but when the defendant responded with the same story he had told Detective Archuleta the day before, Officer Purvis' tone grew more accusing and confrontational. Officer Purvis told the defendant that the "medical evidence" contradicted his story, and that it would be better for the defendant to talk to Officer Purvis now and be honest about what happened.

From that point in the interrogation, Officer Purvis testified that the questioning proceeded with Officer Purvis providing details of what happened and the defendant agreeing. For example, in his report Officer Pur-vis wrote: "I told [the defendant] that he lost his temper and that he shook Juanita. I told [the defendant], 'this is what happened, right, you shook her-you lost your temper, and you shook Juanita.' " Later in the interview, Officer Purvis reported, "I told [the defendant] 'You shook her, didn't you?" And [the defendant] said, 'Yes." I told [the defendant], 'You violently shook her, and [the defendant] said, 'Yes' " At one point, Officer Purvis informed the defendant, incorrectly, that the infant had a skull fracture, and when Officer Purvis suggested how this might have happened, the defendant agreed with Officer Purvig' version of events. Detective Archule-ta testified that about twenty minutes of the forty-five minute interview were comprised of this type of confrontational exchange.

Based on the defendant's admission that he shook the infant, Detective Archuleta and Officer Purvis formally arrested him, again without advising him of his Miranda rights, and then the defendant's wife was permitted to enter the room. Before she saw her husband, nurses had informed her that the defendant confessed to shaking the infant. In the officers' presence, the defendant had a brief conversation with his wife during which he said, "I'm going to take full responsibility for this." Detective Archuleta and Officer Purvis then transported the defendant to Pueblo, and during the trip, the defendant made unsolicited comments that he was "a monster."

The trial court held that the defendant was in custody for Miranda purposes during his interview with Detective Archuleta and Officer Purvis and therefore prohibited the prosecution from using the statements made in the course of that interview as evidence in its case-in-chief. The court also held that the defendant's subsequent conversation with his wife was the functional equivalent of interrogation and ordered those statements suppressed as well.

Regarding the statements made while the defendant was being interviewed in the hospital, the trial court cited People v. Matheny, 46 P.3d 453 (Colo.2002), and articulated the standard we set forth in that case to determine whether a defendant is "in custody" for Miranda purposes. The court then made several findings of fact. First, the trial court found the officers were dishonest with the defendant "when Detective Purvis told him that he was free to leave." The court found that the officers drove two hours to execute the warrant, and that "[their] testimony that the Defendant was free to leave their presence once he came into the interview room" was incredible. The court then made the following findings regarding the character and tone of the forty-five minute interview: the defendant was isolated with the two detectives; the defendant was "directed to the chair farthest from the door and had two officers between him and the door"; and the officers communicated their belief in the defendant's culpability. The court found the overall tone of the interview to be "accusatory" and "confrontational," especially when Officer Purvis referred to the "medical evidence" that refuted the defendant's story. The court found that Officer Purvis was "empathetic towards the, [infant] and raised his voice to emphasize the violent nature of the act" and that the police used leading questions and "played on [the defendant's] emotions by ... conducting a confrontational interview."

The trial court also addressed the existence of the warrant in its findings. The court reiterated that the officers went to Denver for the purpose of arresting the defendant and stated that the officers' testimony that they would allow the defendant to leave was "incredible as a matter of law."

Overall, the court concluded, "In reviewing the facts of this matter and looking at the totality of the cireumstances, the Court finds that the Defendant in this matter was 'in custody' at the time he was interrogated by the two police officers" at the hospital.

With respect to the statements the defendant made to his wife, the court noted briefly: "The Court finds that to allow into a room a spouse, who has just been told that her husband has confessed to seriously injuring their child is the functional equivalent of questioning and the Court orders that those statements be suppressed."

Analysis

In 1966, the United States Supreme Court decided Miranda v. Arizona. Under this ruling, the state may not use in its case-in-chief any statement made by a suspect in the course of custodial interrogation unless the interrogation was preceded by certain warnings. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Mirando Court was particularly concerned about the threat to the privilege against self-incrimination posed by coercive interrogation techniques applied to individuals who are isolated and deprived of contact with friends and family. Id. at 461, 86 S.Ct. 1602. Such an environment, according to the Court, "is created for no purpose other than to subjugate the individual to the will of his examiner." Id. at 457, 86 S.Ct. 1602.

Miranda applies only "where there has been such a restriction on a person's freedom as to render him 'in custody.! " Matheny, 46 P.3d at 463 (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)). Under this Court's prior case law, whether a person is in custody for Miranda purposes is a question of law that we review de novo. Id. at 462, 86 S.Ct. 1602.

In Matheny we explained that an "in custody" determination involves two discrete inquiries. The first requires a trial court to establish the cireumstances surrounding the interrogation, and the second asks whether, under those cireumstances, there was a "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Id. at 459 (quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995))(further citations omitted).

The first inquiry is distinctly factual, and thus we will defer to a trial court's findings of historical fact and credibility findings so long as they are supported by competent evidence in the record. Id. at 462. The second inquiry is legal in nature and requires a court to apply the correct legal standard to the historical facts. See id. at 459. Provided a trial court's findings of fact are adequately supported by the record, our primary task on review is to determine whether, given the circumstances of the interrogation, the trial court correctly determined whether a reasonable person in the defendant's position "would believe that his freedom of action had been curtailed to a degree associated with formal arrest." Id. at 464 (citing Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)).

When applying this objective legal test, a court must look to the totality of the circumstances under which the questioning occurred. See Matheny, 46 P.3d at 459-60; People v. Horn, 790 P.2d 816 (Colo.1990). A court may consider many factors, but no single factor is determinative, and a court is not limited in the number of factors it may consider. Rather, the most important consideration is whether the trial court accurately evaluated the "totality of the circumstances" when making its "in custody" determination. See Matheny, 46 P.3d at 464 ("[A] court must examine all of the circumstances surrounding the interrogation.") (quoting Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)); see also People v. Thiret, 685 P.2d 193, 203 (Colo.1984) (reversing the trial court's in custody determination because the court's analysis focused on a single factor rather than the totality of the circumstances). To guide this inquiry, we have suggested a number of factors a court may consider, including the time, place and purpose of the encounter; the persons present during the questioning; the words used by the officers; the tome of voice of the officers and the general mood of the interrogation; whether the defendant is restrained in any way; and whether the defendant is given any instructions. See Matheny, 46 P.3d at 465-66 (quoting People v. Trujillo, 938 P.2d 117, 124 (Colo.1997)).

Despite the broad range of factors a court may consider, we have made clear that a court may not rest its conclusion that a defendant is in custody for Miranda purposes upon "a policeman's unarticulated plan." Matheny, 46 P.3d at 464 (quoting Stansbury, 511 U.S. at 323-24, 114 S.Ct. 1526). In other words, a police officer's knowledge, intentions, or beliefs are only relevant to a custody determination to the extent that they affect how a reasonable person in the defendant's position would evaluate his situation. See id. The mere existence of an arrest warrant, a police officer's undisclosed plan to take a suspect into custody, or a police officer's firm but unstated belief in the defendant's culpability do not, by themselves, establish that a defendant is in custody for Miranda purposes. These factors are relevant "only to the extent they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action." Id. at 464-65, 86 S.Ct. 1602 (quoting Stansbury, 511 U.S. at 325, 114 S.Ct. 1526).

While we have never reviewed a scenario precisely like the one at issue in this case, our prior custody cases illustrate the range of factors a court may consider in evaluating whether a defendant is in custody. In Math-eny, we held that the trial court erred by basing its custody determination on the fact that the officers intended to arrest the defendant from the outset of questioning. Matheny, 46 P.3d at 468. Applying the reasonable person standard, we concluded that the suspect was not in custody for Miranda purposes because, although the questioning took place in a secured area of a police station, the defendant drove himself to the police station voluntarily, was relaxed throughout the interview, was accompanied by his mother, and told his story in narrative form. Id. at 467, 86 S.Ct. 1602. Further, the trial court noted that the officers were polite during the questioning and spoke with a soft tone of voice. Id. at 467, 86 S.Ct. 1602. Similarly, we held that the suspect was not in custody in People v. Thiret because the suspect went voluntarily to the police station, was told he was not under arrest, and was informed by an officer at one point during the questioning that he could let him know when he was ready to go. Thiret, 685 P.2d at 203.

By contrast, we upheld the trial court's conclusion that the defendant was in custody in People v. Horn. In that case, despite the fact that the defendant was told he was free to go, the officers repeatedly accused the defendant of lying and encouraged the defendant to reconsider his answers; the officers confronted the defendant with the evidence against him; the interview was accusatory from the outset; and the court concluded that the "sole purpose of the questioning was to obtain a confession from the defendant." Id. at 818-19. We also upheld the trial court's determination that the defendant was in custody in People v. Cleburn, 782 P.2d 784 (Colo.1989). In that case, the defendant was interviewed in his home by two armed police officers. The trial court emphasized that the officers initiated the questioning, the questioning was conducted for the sole purpose of obtaining evidence against the defendant, the officers (who were well-acquainted with the defendant) exerted a "subtle coercive influence over the defendant as a friend," and the questioning, which lasted about 25 minutes, was relatively lengthy. Cleburn, 782 P.2d at 786.

With these examples in mind, we now turn to the present case to determine whether the defendant was "in custody" for Miranda purposes when he was questioned by Detective Archuleta and Officer Purvis.

Application

The People contend that the trial court misapplied Matheny by basing its custody determination on the existence of the warrant and by considering the police officers' opinion as to their belief in the defendant's guilt as a separate factor. The People urge this Court to apply Matheny "correctly" to the facts of this case and hold that the defendant was not in custody when he was questioned by Detective Archuleta and Officer Purvis. In response, the defendant argues that the trial court properly determined that the defendant was in custody when he was questioned by police officers at Children's Hospital in Denver.

We agree that the trial court overemphasized the legal significance of the warrant. The court made two findings with respect to the warrant, which we address in turn. First, the court found "that when the police have a properly authorized arrest warrant for an individual and he is to be interrogated on the specific case for which the warrant has been issued, this is [an] additional factor the court can consider in determining, in the totality of the circumstances, whether an individual is in custody for purpose [sic] of a Miranda advisement." This finding is not per se incorrect, but it must be evaluated in light of our holding in Matheny. As we explain above, a police officer's "unar-ticulated plan" has no bearing on whether an individual is in eustody for Miranda purposes unless that plan would somehow affect the way a reasonable person would perceive his situation. See Matheny, 46 P.3d at 464-65. Thus, a trial court may consider the existence of the warrant as part of the totality of the cireumstances, but only to the extent that the warrant affects the perception of the defendant.

Second, the court concluded that, because the officers had a warrant in their possession that they intended to execute that evening, their testimony that they would "allow the Defendant to leave the room any time he wished and just arrest him later is incredible as a matter of law." This finding is incorrect, but it does not affect our determination of whether the trial court applied the correct legal standard in its "in custody" analysis.

A trial court may conclude that testimony is "incredible as a matter of law" only when a witness's testimony conflicts with nature or fully established facts. See People v. Ramirez, 30 P.3d 807, 809 (Colo.App.2001). Testimony rises to this level of incredibility when a witness describes events she could not possibly have seen or that are not possible under the laws of nature. See U.S. v. Emerson, 128 F.3d 557, 561 (7th Cir.1997); U.S. v. Lerma, 657 F.2d 786, 789 (5th Cir.1981); State v. Hornsby, 858 S.W.2d 892, 894 (Tenn.1998); Chapman v. State, 69 Wis.2d 581, 230 N.W.2d 824, 825 (1975). On the other hand, testimony that is merely biased, conflicting, or inconsistent is not incredible as a matter of law. See People v. Franklin, 645 P.2d 1, 5 (Colo.1982); Ramirez, 30 P.3d at 809. In this case, the trial court erred in concluding that the officers' testimony that the defendant was free to leave if he had wished was incredible as a matter of law. The trial court may make factual credibility determinations based on impressions formed while the officers testified. See Page v. Clark, 197 Colo. 306, 592 P.2d 792, 796 (1979). In this case, the court did exactly that when it found that the officers were dishonest with the defendant and that their testimony that the defendant was free to leave if he chose to do so was not credible. A trial court may not, however, reach legal conclusions that are not supported by the record. Thus, while we defer to the trial court's factual and credibility determinations, we hold that the officers' testimony with respect to the defendant's freedom to leave is not incredible as a matter of law.

Nonetheless, despite our conclusion that the trial court misconstrued the legal significance of the warrant, our review of the record and of the final order reveals that the trial court based its "in custody" determination on far more than the existence of the warrant. Cf. Matheny, 46 P.3d at 468 (reversing trial court's custody determination because it was based primarily on the conclusion that officers intended to arrest the defendant from the outset of the questioning).

The trial court made detailed findings of fact, which are supported by competent evidence in the record and which support the conclusion that a reasonable person in the defendant's position would believe that his freedom of action was curtailed to a degree associated with formal arrest. The court found that the police officers were dishonest with the defendant and that their testimony regarding the defendant's freedom to leave the interview room was not credible. The questioning took place in a private room, and the officers, intentionally or not, physically separated the defendant from the door. The officers initiated contact with the defendant, who was visibly emotionally distraught both at the outset and throughout the interview. Onee inside the interview room, the defendant was alone with the officers and was seated in the farthest chair from the door while the officers sat between him and the door. Significant portions of the interview proceeded in a highly confrontational and accusatory atmosphere that was clearly aimed at obtaining a confession. The interrogating officer's questions provided all of the details of the incident and were designed essentially to force agreement from the defendant. And the interrogating officer confronted the defendant with the evidence against him and with his own belief in the defendant's guilt.

These factors are all relevant to the question whether, under the totality of the cireumstances, a person in the defendant's position would consider himself to be deprived of his freedom of action to a degree associated with formal arrest. The People's argument that the trial court should not have considered the fact that the interrogating officer communicated his belief in the defendant's culpability to the defendant as a separate factor is unpersuasive. Nothing in our case law limits the number of factors a court may consider when it analyzes the cireum-stances under which an interrogation took place. On the contrary, a trial court's first responsibility in any "in custody" analysis is to "examine all of the cireumstances surrounding the interrogation. ..." Matheny, 46 P.3d at 464 (quoting Stansbury, 511 U.S. at 322, 114 S.Ct. 1526). In this case, the trial court did precisely that.

Our only remaining task, then, is to determine whether the trial court applied the correct legal standard to the historical facts. See Matheny, 46 P.3d at 459. As we explain above, the trial court did misinterpreted the legal significance of the warrant. However, the trial court made additional, sufficient, and detailed findings of fact, all of which are supported by competent evidence in the ree-ord. The court also applied the "reasonable person" test to those facts and determined that, given the totality of the circumstances, the defendant was in custody when questioned. This is precisely the analysis we held applies when a court is determining whether a person is "in custody" for Miranda purposes. See Matheny, 46 P.3d at 459-60.

However, even if we assume the trial court incorrectly applied the standard articulated in Matheny, under de novo review, we hold that the defendant in this case was "in custody." The totality of the cireumstances surrounding the interrogation establish that a reasonable person in the defendant's position would not think that he was free to leave the conference room once law enforcement officers began questioning him. As we explain above, we defer to a trial court's findings of fact if they are supported by competent evidence in the record. Matheny, 46 P.3d at 462. In this case, the trial court found the officers' testimony to be incredible, and its findings of fact regarding the cireumstances of the interview are all supported by competent evidence. The defendant was questioned for forty-five minutes in a small room by two law enforcement officers who, by their seating arrangement, blocked the defendant's access to the only door. Unlike the defendant in Matheny, the defendant in this case was emotionally distraught, and the tone of the interview was confrontational and accusatory. The officers told him "it would be better ... to talk now." The defendant did not give his statements in a relaxed, narrative style but rather was confronted repeatedly with the interrogating officer's version of events and encouraged to admit that this version was accurate. As in Horn, the defendant was subject to repeated accusations. Overall, the mood in the room was tense and confrontational, and the defendant was subjected to the mode and manner of questioning that police use when a suspect is not free to leave-that is, after a suspect has been formally arrested and advised of his Miranda rights.

Here, viewing the totality of the cireum-stances, a reasonable person in the defendant's position would have considered that he was being restrained to a degree associated with formal arrest. It is certainly appropriate for police to use confrontational interrogation techniques to obtain evidence of erimi-nal conduct. However, when police create an atmosphere equivalent to that of formal arrest by questioning a suspect who is isolated in a small room, by effectively blocking his access to the room's only exit, by confronting him repeatedly with the weight of the evidence against him, and by telling him that he is free to leave when all external cireum-stances appear to the contrary, they must begin this type of interrogation with the Miranda advisements. The officers' failure to so advise the defendant under these cireum-stances renders the defendant's statements inadmissible in the prosecution's case-in-chief, as the trial court concluded.

Finally, we address the trial court's order suppressing the statements the defendant made to his wife after he was taken into custody. The trial court summarily found that allowing into the interview a spouse who had recently been told that her husband confessed to injuring their child room is the functional equivalent of interrogation. In response, the People cite People v. Gonzales, 987 P.2d 239 (Colo.1999), in which we explained that "interrogation" means either express questioning by a police officer or "words or actions ... that the officer should know are reasonably likely to elicit an incriminating response from the suspect." Gonzales, 987 P.2d at 241 (citations and internal quotation marks omitted). Police conduct may be considered the functional equivalent of interrogation if it employs "compelling influences or psychological ploys in tandem with police custody to obtain confessions." Id. at 242.

In this case, although the defendant was undeniably in custody when he was allowed to see and speak with his wife, the police did not engage in any psychological ploys to obtain incriminating evidence against him. Nothing in the record indicates that the officers made any tactical decision when they allowed the defendant to see his wife, and nothing in the record suggests that it was anything other than the defendant's own choice to speak to her. Thus, we hold that the defendant was not subject to the functional equivalent of interrogation when he made statements to his wife in the presence of the officers, and therefore those statements should not have been suppressed.

Conclusion

For reasons set forth above, we hold that the defendant was in custody when he was questioned by police officers at Children's Hospital in Denver, and that he was not subject to the functional equivalent of interrogation when he subsequently spoke with his wife in the officers' presence. Thus we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.

Justice COATS concurs in part and dissents in part, and Justice KOURLIS joins in the concurrence and dissent.

Justice COATS,

concurring in part and dissenting in part.

Despite concluding that the trial court failed to apply the correct legal standard, maj. op. at 856, and "overstated" some of its factual findings, maj. op. at 356 n. 7, the majority nevertheless concludes that additional findings of fact by the trial court are sufficient to establish custody under the correct standard. Because I believe the existing record is wholly inadequate to support a de novo determination of custody by this court, I would reverse the trial court's clearly flawed ruling and remand for further proceedings. I therefore dissent from that portion of the majority opinion upholding suppression.

As the majority readily acknowledges, the trial court misapprehended the legal significance of the arrest warrant in this case. Its ruling left no doubt that it considered relevant to the determination of custody the fact that the detectives already had judicial authority to arrest the defendant and therefore must bave intended to arrest him and, similarly, must have been dishonest in telling him that he was free to leave. As the majority points out, the totality of cireumstances test for assessing the question of custody turns on the perceptions of a reasonable person in the defendant's position rather than the subjective intent of the officers. The trial court's legal conclusion was therefore fatally flawed.

Nevertheless, the majority concludes that the police created "an atmosphere equivalent to that of formal arrest by questioning a suspect who [was] isolated in a small room, by effectively blocking his access to the room's only exit, by confronting him repeatedly with the weight of the evidence against him, and by telling him that he [was] free to leave when all the external cireum-stances appear[ed] to the contrary." Maj. op. at 357. In fact, these propositions are either completely unsupported by the record or are insufficient, to the extent that some find partial support, to justify a legal conclusion of custody.

Initially, the defendant was "isolated" only in the sense that the detectives were the only other persons in the room with him. Nothing in the record suggested that he was deceived or had not come into the room voluntarily. (He had been directed to that location by the nurses.) Nor did anything suggest that he wanted to have, or was in any way prevented from having, anyone else in the room with him. Hospital staff, rather than the detectives, closed the door as they left, and it was clearly not locked. When the defendant eventually asked for his wife, one of the officers immediately located her, and she was permitted to come in.

Similarly, the record did not indicate that the interview took place in a small room but rather in a comparatively large one. The only evidence concerning the nature of the room and the positioning of those present indicated that, unlike a typical police interrogation room, it was a hospital meeting room (as distinguished from a "private room"), large enough to house a table seating twelve, in addition to a television and other chairs positioned for watching. Nowhere was the location of the table described, relative to the door, nor was there any evidence to support a finding that the detectives were effectively blocking the defendant's access to the door, or even that they were sitting between him and the door. The only reference in the record to the relative positions of the participants indicated that the defendant was sitting some ten feet away from Detective Pur-vis and that Purvis and Detective Archuleta were nearer than the defendant to the door.

As the majority concedes, the undisputed testimony indicated the defendant was told that he need not talk to the detectives and that he was free to leave at any time, and the trial court made factual findings to that effect. The majority's qualification that "all external cireumstances appear[ed] to the contrary," maj. op. at 357, was neither a finding of the trial court nor a permissible inference from the testimony. The trial court, in fact, found only that the detectives were dishonest in indicating to the defendant that he would be allowed to leave, and it was actually criticized by the majority for failing to appreciate that the question of custody turned on appearances rather than the intent of the detectives.

To the extent that the majority's inference is drawn from the trial court's finding that the detectives sat between the defendant and the doorway and the fact that the defendant was confronted with the evidence against him, the former was no more supported by the record than the trial court's finding that the defendant was directed to the chair furthest from the door, see maj. op. at 356, n. 7, and the latter, in itself, does not imply that the defendant must have felt that he was no longer entitled to withdraw from the interview. The record is undisputed that only after the defendant made clear his wish to talk ("No, I'm talking") to the detectives and made several attempts to allay their suspi-clons by giving explanations that they knew to be medically impossible, did they challenge his account.

Unlike the majority, I would not hold that two plainclothes detectives, without visible weapons, verbally confronting an unrestrained suspect, in an unlocked hospital TV room, after notifying him that he is free to leave rather than talk to them, with the lies he has voluntarily told them in an attempt to shift suspicion away from himself, amounts to an infringement on his liberty to such an extent that it is commensurate with a formal arrest. At such a point, concessions by a suspect are, in my mind, more naturally explained by his realization that his attempts at deception have not only failed but have actually increased police suspicions, and that further fabrication will not improve his position, rather than because of any reasonable perception that he has, in effect, already been arrested.

Apprehending and punishing those who commit crimes, is not a contest requiring the perpetrator to be given a sporting chance to evade detection. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court squarely rejected the notion that confessions are in some way unworthy evidence or an undesirable way of solving crimes. Instead, it sought only to provide an additional protection from police coercion in situations comparable to the inherently coercive atmosphere of the stationhouse interrogation. Because the defendant asserted and the trial court erroneously found it to be improper for officers to attempt a consensual interview with a suspect whom they already had grounds to arrest, the record in this case not surprisingly fails to address or support a finding of custody under the correct legal standard. Rather than attempt to pour the trial court's old findings into new bottles, I would remand for reconsideration in light of the proper legal standard.

I therefore concur in part and dissent in part.

I am authorized to state that Justice KOURLIS joins in this partial concurrence and partial dissent.

      . These statements were ruled admissible by the trial court in another motion, and are not the subject of this appeal.

      . Purvis testified that he was a detective at the time of the investigation into Juanita Minjarez' injuries. He is now on patrol and was referred to as an officer at the time he testified.

      . The trial court ruled that these statements were made voluntarily and spontaneously and were not elicited in violation of Miranda. Thus, the court ruled that these statements are admissible.

      . We note that other jurisdictions have reached different conclusions where police officers possess a warrant. For example, in State v. Wolfe, 295 Or. 567, 669 P.2d 320 (1983), the Oregon Supreme Court held that police engaged in flagrant misconduct when they arrived at the suspect's house with a warrant and asked questions before they executed the warrant and advised the suspect of his Miranda rights. See also Commonwealth v. Pitts, 740 A.2d 726 (Pa.Super.1999) (suspect "in custody" because suspect would never have been allowed to leave and was going to be arrested); State v. Sosinski, 331 N.J.Super. 11, 750 A.2d 779 (App.Div.2000) (statements suppressed where police question suspect with warrant in pocket in a deliberate aitempt to avoid Miranda). But see State v. Edwards, 589 N.W.2d 807 (Minn.App.1999) (warrant immaterial because suspect volunteered information in an attempt to receive favorable treatment); People v. Bury, 199 Ill.App.3d 207, 145 Ill.Dec. 281, 556 N.E.2d 899 (1990) (warrant immaterial where defendant questioned in his home in wife's presence).

      . Because People v. Horn was decided before Matheny, we reviewed that case under a more deferential standard than we use today. See Horn, 790 P.2d at 818 ('The determination of whether an individual was 'in custody' as a result of being deprived of his liberty in a significant way is a question of fact which must be expressly made by the trial court.") (citation omitted). We note, as we did in Matheny, however, that the trial court in Horn not only made findings of fact that were adequately supported by the record but also applied the correct legal standard to those facts. See Matheny, 46 P.3d at 466 n. 6 (citing Horn with approval).

      . As with Horn, Cleburn was decided under our pre-Matheny standard of review. See supra note 4.

      . The court found that the defendant was "directed to the chair in which he was furthest from the door." Our review of the record reveals that this finding is somewhat overstated. Archuleta testified that the defendant was asked to sit down, but there is no evidence in the record that the officers intentionally directed the defendant to any particular chair.

      . See Stansbury v. California, 511 U.S. 318, 326, 114 S.Ct. 1526, 1530, 128 L.Ed.2d 293 (1994)(Remand required despite consideration of a number of appropriate factors, where trial court regarded officers' subjective focus on defendant as a suspect as significant in and of itself).

      . See Oregon v. Mathiason, 429 U.S. 492, 497, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) ("Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But the police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect."); see also Matheny, 46 P.3d at 468 (quoting Mathiason ).

      . Cf. Matheny, 46 P.3d at 466 (noting significance of fact that the "initial tone" was conversational).

      . Cf. Matheny, 46 P.3d at 456 (noting significance of fact that officers were not uniformed).

      . Cf. People v. Polander, 41 P.3d 698, 705 (defendant not confined at police station nor did officers draw guns, use handcuffs or otherwise demonstrate the kind of force typically associated with an arrest); see generally 2 Wayne R. La-Fave, Jerold H. Israel & Nancy J. King § 6.6(F) (West Group, 1999 & Supp.2003)(A court is more likely to find custody for Miranda purposes if there is physical restraint such as handcuffing, drawing a gun, holding by the arm, or placing into a police car.).

      . Id.

      . Cf. Matheny, 46 P.3d at 466 (noting significance of unlocked interview room).

      . Cf. Matheny, 46 P.3d at 466 (noting such advisement as one indication that the defendant's freedom of action had not been curtailed).


author: Justice MARTINEZ

text:
    In re WICK COMMUNICATIONS COMPANY, d/b/a The Montrose Daily Press, Plaintiff, v. MONTROSE COUNTY BOARD OF COUNTY COMMISSIONERS and Dennis Hunt, Montrose County Manager.
    No. 03SA194.
    Supreme Court of Colorado, En Banc.
    Dec. 15, 2003.

      Brooks & Brooks, LLC, John A. Brooks, Aaron J. Brooks, Montrose, Colorado, Attorneys for Plaintiff.
    Paul C. Sunderland, Grand Junetion, Colorado, Attorney for Defendant.
   Justice MARTINEZ

delivered the Opinion of the Court.

I. Introduction

This case comes before us under C.A.R. 21. At the request of the defendant, we issued a rule to show cause why a writ of prohibition should not issue to the district court barring enforcement of the district court's order mandating the defendant to produce his diary to the court for an in camera review. The defendant questions whether the district court is authorized to inspect his diary to determine whether it is a public record under circumstances where the Colorado Public (Open) Records Act (CORA) applies only if the diary is a public record. Because we cannot decide whether the trial court is authorized to order an in camera review without first determining whether CORA applies, we necessarily begin our analysis with a discussion of whether the Act applies. We adopt the federal test for determining whether the federal public records act, the Freedom of Information Act (FOIA) applies: the plaintiff must show that a public entity: (1) improperly; (2) withheld (8) a public record. Additionally, we hold that in cases where it is unclear whether the custodian of the record holds the record in an individual or official capacity, and thus whether the record is private or public, the requesting party must make a threshold showing that the document is likely a public record. We find that the plaintiff in this case could not make the required showing that the defendant's diary is likely a public record. Consequently, we find that CORA does not apply and therefore the trial court did not have authority to order an in camera review.

II. Facts and Procedure

After the Montrose County Manager, Dennis Hunt, fired Montrose County's former airport manager, David Miller, Miller requested a review of his termination with the Board of County Commissioners. In preparation for that hearing, Hunt wrote an outline of events that he had considered in his decision to fire Miller. Although it is unclear from the incomplete record before us, it appears that the outline included edited tran-seriptions of excerpts from Hunt's diary. This outline was made available to the Daily Press. Hunt did not produce the diary itself.

After the hearing, the Montrose Daily Press requested, under CORA, photocopies of "any and all pages from the diary ... discussed and used during a public grievance hearing for former Montrose Regional Airport Manager Dave Miller" The Daily Press's first request was made to the Mont-rose County Clerk and Recorder's office. In response, the County Clerk and Recorder stated that she did not have eustody or control of the requested records and referred the Daily Press to Hunt. Hunt also responded, thus acting before the Daily Press made an official request to him, stating that he did not believe his diary to be a public record. Nonetheless, Hunt offered to have pages relating to Miller copied by a neutral third party and given to the Daily Press. Hunt conditioned this offer on obtaining a satisfactory release from Miller that Miller would not take action against Hunt for releasing the records. The Daily Press rejected Hunt's offer, maintaining that the diary was a public record subject to disclosure.

The Montrose Daily Press then sued Montrose County and Hunt, in both his official and individual capacities, for disclosure of Hunt's personal diary. Montrose County and Hunt responded that the diary is not a public record under the Act. Consequently, they moved to dismiss for lack of subject matter jurisdiction, arguing that the court did not have jurisdiction to compel disclosure of a private record.

The trial court dismissed the claims against the County and Hunt individually. However, the trial court ruled that in order to decide whether the diary is a public record, it would need to conduct an in camera review. The trial court thus ordered Hunt, in his official capacity, to produce his personal diary.

Faced with the decision of disclosing the entire contents of his personal diary or risking citations for contempt and prosecution, Hunt petitioned this court for a rule to show cause why a writ of prohibition should not issue to the trial court, barring enforcement of the court's order of production. We issued a rule to show cause. Because we find that CORA does not apply to a private diary, and therefore that the trial court exceeded its authority by issuing its order, we now make the rule absolute.

III. Analysis

We decide that in order to show that CORA applies, the plaintiff must show that a public entity: (1) improperly; (2) withheld; (8) a public record. In a case such as this one, where the disagreement centers on whether the requested document is a public record, we hold that the court must make an initial determination of whether the doeument is likely a public record. In the unique situation where the parties dispute whether a requested document is public or private, and there exists the question of whether the custodian holds it in a personal or official capacity, we place the initial burden on the requesting party to make a threshold showing that the document is likely a public record. If the plaintiff makes that initial offer of proof, then the burden shifts to the custodian of the document to demonstrate the contrary.

We find that the Montrose Daily Press did not meet the required threshold of proof that a private diary was likely a public record. We therefore hold that CORA does not apply to the defendant's diary and consequently the trial court may not conduct an in camera review of the diary.

A. Determining Whether CORA Applies

A trial court cannot allow a suit to proceed under CORA without first determining that the Act applies. We have not previously discussed the necessary prerequisites for the provisions of CORA to apply. Under the federal equivalent to CORA, the Freedom of Information Act (FOIA), 5 U.S.C. § 552(a)(4)(B) (2000), application of FOIA is dependent on a showing that an agency: (1) improperly; (2) withheld; (@) agency rec-ords. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). Although Colorado's statute is not identical to its federal counterpart, it also allows for a complainant to apply to the district court for relief when access to a record is denied. § 24-72-204(5), 7B CRS. (2008). Therefore, though our statutory language differs, the intent is the same: an agency cannot improperly withhold ageney records, and if it does so, the courts are empowered to remedy the situation.

As we find that the federal test for the application of FOIA is consistent with CORA's goals, we adopt it now. Thus, in order to show that CORA applies, a plaintiff must show that the public entity in question: (1) improperly; (2) withheld; (8) a public record. All three of these prongs must be shown or the Act will not apply.

B. Challenge to CORA's Application

In the present case, the dispute over CORA's application centers on the third prong of the test: whether the requested record is a public record. To decide whether a requested document is a public record, we must look at several sub-issues. First, we decide who has the burden of proof to show whether the diary is a public record. Second, we determine the degree of protection appropriate for private writings in a public records case, balancing the goal of open government with considerations of individual privacy. Finally, we apply our analysis to the facts of this case. We hold that when a public records request is made for an arguably private document held by a public official, the requesting party must show that the document is likely a public record in order to show that CORA applies.

1. Challenge to CORA's Application: Burden of Proof

Generally, the plaintiff has the burden to present facts to establish a claim under a particular act. However, under FOIA, the U.S. Supreme Court has held that the custodian of a record has the burden to show that the record is not an agency (public) record. United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n. 3, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). Therefore, even though the plaintiff has the burden of proof to show that CORA applies, when the parties dispute whether a document fits within the definition of a public record, in most cases the burden will fall on the custodian to show that the record is not a public record.

Ordinarily, we agree with the U.S. Supreme Court that placing the burden of proof on the custodian of the record makes sense. In most cases, the custodian of a requested public record is a public entity. If a party requests a document that the public entity believes to be outside of the provisions of CORA, either because the public entity thinks it is not a public record as defined by CORA, or because it falls under one of the public record exceptions, the public entity is in the best place to demonstrate why CORA does not apply. This rule is consistent with both the public policy behind CORA, which favors disclosure, and the common sense notion that the burden should be on the party with the information necessary to explain why CORA does not apply to the requested document. See §§ 24-72-201, 204(6)(a), 7B C.R.S. (2008) (public records are to be open for inspection) (burden on custodian to show that disclosure would do substantial injury to the public interest).

Nonetheless, the rationale for requiring the custodian to show that a document is not a public record does not extend to a situation where the custodian is not a public entity. In a case such as the one before us, where the custodian of the record has both a private and an official capacity, determining in what capacity the document is held resolves the underlying question of whether the document is a public record. If Hunt holds the document in his official capacity as County Manager, then the document is clearly a public record. Conversely, the document is not a public record if Hunt keeps it in his individual capacity. Thus, the premise of the normal situation, that the public entity is in the best position to provide information about the document, is not true when it is unclear whether the County, acting through its County Manager, is the custodian, or whether Hunt as an individual possesses that information. Because this approach entails resolving the entire case, and inspecting a personal diary to resolve a threshold question of whether the Act even applies, we do not find it to be a proper placement of the burden in this unique cireumstance.

We hold that in cases where it is not clear whether the custodian holds a record in an individual or official capacity, and thus whether the record is private or public, the requesting party must make a threshold showing that the document is likely a public record. Therefore, the requesting party must show that the requested material is likely a public record as defined by CORA: it was made, maintained, or kept by a public entity. As this initial showing requires only that the requesting party demonstrate that the document is likely to be a public record for purposes of establishing that the Act applies, not that it is definitively a public record, we do not find this requirement to be overly burdensome. Furthermore, it is consistent with both CORA, which seeks to ensure an open government, and our prior case law protecting individuals' privacy. We turn to those considerations now.

2. Balancing Open Government with the Privacy of Public Officials

Placing a greater burden on a party requesting a document that may not be a public record is in harmony with both the intent of CORA and with our previous cases protecting individuals' private documents.

Generally, the intent behind CORA is stated in the legislative declaration: "It is declared to be the public policy of this state that all public records shall be open for inspection by any person at reasonable times...." $ 24-72-2201. CORA limits disclosure requirements, however, to public ree-ords, which the Act defines: "'Public ree-ords' " means and includes all writings made, maintained, or kept by the state, ... or political subdivision of the state ... for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds." § 24-72-202(6)(a)(D).

Although generally CORA favors broad disclosure, the General Assembly ree-ognized that not all documents should be subject to public disclosure. First, the definition of "public record" limits which documents are subject to disclosure under the statute. Further, that definition is limited by exceptions for certain documents that the General Assembly deemed inappropriate for disclosure such as work product, criminal justice records, and trade secrets. § 24-72-202(6)(a)(II), (6)(b); see also City of Westminster v. Dogan Constr. Co., 930 P.2d 585, 589 (Colo.1997) ("Although the general purpose of the Act is to provide access to public records, the General Assembly qualified that purpose by providing specific exceptions to the statutory disclosure requirements."). Thus while the general purpose of CORA is to provide open government through disclosure of public records, CORA's purpose is not to disclose information that is not held by the government or that otherwise falls under an exception. In sum, CORA was not intended to cover information held by a government official in his private capacity. See Johnson v. Bd. of County Comm'rs, 85 F.3d 489, 493 (10th Cir.1996) ("When a governmental official is sued in his official and individual capacities for acts performed in each capacity, those acts are 'treated as the transactions of two different legal personages.? ").

Consistent with the General Assembly's definition of public records, we have recognized the distinction between private and public records. Our prior case law demonstrates that our decision today is in keeping with the greater protection we have traditionally afforded private documents.

First, we have previously distinguished between writings made in a public versus a private capacity. In Downing v. Brown, 3 Colo. 571, 590-91 (1877), a forgery case, we held that a probate judge's memorandum-book was a "convenient book of reference" and was not a book "of or belonging to any public office." The judge used the memorandum-book to record notes concerning applications about lots for which he was acting as the trustee. Id. at 590. We noted that the judge was not required to keep such a book, it was not evidentiary, and there were other documents that were deposited that served as pleadings in the contested cases. Id. As such, we concluded that the book had "no official character." Id. at 591; accord Int'l Union, United Auto., Aerospace & Agric. Workers of America v. Voinovich, 100 Ohio App.3d 372, 654 N.E.2d 139 (1995) (Governor's personal calendar which was made for his own convenience, to which he had sole access, and could destroy at any time, was not a public record, and to allow access would intrude on his subjective thoughts); cf. Herald Ass'n, Inc. v. Dean, 816 A.2d 469 (Vt.2002) (Governor's calendar considered a public record because the calendar was created by his staff and was an essential part of the functioning of the Governor's office).

Similarly, in People v. Trujillo, 185 Colo. 14, 17, 521 P.2d 769, 770 (1974), another forgery case, we interpreted public records to include only those records "which were prepared by, and in, the custody of a public agency." Consequently, we held that an official could not have forged his application for promotion as that document did not fall within the ambit of public records. Id. at 771. Thus, we again distinguished between documents made in a public versus private capacity.

Our case law therefore reveals the distinction we have made between private and public documents made by public offi-clals. Merely because a document is made during one's tenure as a public official does not render it a public record. While not applicable here, other provisions of CORA support this distinction. § 24-72-202(6.5)(a) (CORA exception to disclosure for documents that are work product and are deliberative in nature); see also City of Colorado Springs v. White, 967 P.2d 1042, 1045 (Colo.1998) ("[MJaterials falling within the ambit of the deliberative process privilege are not subject to disclosure in the context of a request for public records under the Colorado open records laws.").

Additionally, our prior case law illustrates the high value we have placed on the privacy of private papers. A diary is the foremost example of one's private papers. "Indeed, it would be difficult to imagine what 'papers and effects' should be more entitled to privacy than one's personal diary." People v. Williams, 192 Colo. 249, 254, 557 P.2d 399, 403 (1976). While we made that statement in the context of a search and seizure case, the sentiment is no less valid here. The highly personal nature of one's diary would cause even inspection by a court to be far too intrusive. See Martinelli v. Dist. Court, 199 Colo. 163, 173, 612 P.2d 1083, 1091 (1980) (citing Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977)) (right of privacy protects "the individual interest in avoiding disclosure of personal matters").

In short, both CORA and our prior case law demonstrate that while we deem the disclosure of public records and the creation of an open government important goals, we steadfastly guard against disclosure of private papers. The purposes behind CORA, open government and citizen access, generally are not furthered by disclosing public officials' every thought and feeling. Were we to allow such unfettered access, we would not only discourage public service, we would create an arena of gossip and scandal instead of facilitating a forum of open and frank discussion about issues concerning public officials and the citizenry they serve.

3. Application

In the case before us, the Montrose Daily Press made a request under CORA for Hunt's diary. This request was denied both by the County Clerk and Recorder, who stated that she did not have custody, and by Hunt, who asserted that his diary was not a public record. The Daily Press then brought suit, which survived only against Hunt in his official capacity, demanding disclosure of the diary. We now decide that the Montrose Daily Press did not show that the diary was likely a public record. Consequently, CORA does not apply and the trial court is not authorized to order an in camera review of the diary.

Under CORA, a public record must be made, maintained, or kept by the state or political subdivision of the state. § 24-72-202(6)(a)(I), (5). The burden is on the plaintiff to establish that CORA applies, which includes showing that a public entity: (1) improperly; (2) withheld; (8) a public record. In the case of a record held by an individual who is also a public official, the plaintiff must present evidence that would show that the requested document is likely a public record in order to establish the third prong of the test to show that the Act applies.

The Montrose Daily Press has failed to show that the diary is likely a public record under CORA. In particular, they have not shown that the diary was made, maintained, or kept by a public entity.

First, the diary was made in Hunt's individual capacity and not in his official one. While there is some overlap between the two, as evidenced by the entries that spawned this case, one can hardly expect a public official to leave all of his thoughts relating to his work out of his personal diary. The inclusion of such thoughts does not render a personal paper a public record for the purposes of CORA. Furthermore, reference to an outline that included excerpts from his diary to recall the events leading up to the termination proceedings does not render the entire diary a public document. See Forsham v. Harris, 445 U.S. 169, 170, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980) (data which merely serves as the basis for a public document is not a public record under FOIA). Moreover, the outline used in the termination proceeding was given to the Daily Press.

Second, the diary was not maintained by the County. Hunt made entries into his diary in his individual capacity, and it was not used in the daily functioning of the office. Montrose County does not require Hunt to keep the diary nor has it ever attempted to exercise control over the diary.

Finally, the diary was not kept by the County or Hunt in his capacity as County Manager. Rather, he kept his diary locked and in his possession. He did not leave it at work or allow others to view it as one would a purely work related document. See id. ("FOIA applies to records which have been in fact obtained [by an ageneyl, and not to records which merely could have been obtained.").

As the Montrose Daily Press has made no showing that Hunt's diary was made, maintained, or kept by Hunt in his official capacity, they have not made the threshold showing that the document is likely a public record. Consequently, CORA does not apply and the trial court is not authorized to review the diary in camera.

IV. Conclusion

We hold that in cases where it is not clear whether the custodian holds a record in an individual or official capacity, and thus whether the record is private or public, the requesting party must make a threshold showing that the document is likely a public record. As the requesting party in this case did not show that a personal diary was likely a public record, the trial court is not authorized to conduct an in camera review of the defendant's personal diary. Therefore, we make the rule absolute.

      . FOIA states specifically:
      On complaint, the district court of the United States ... has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.
      5 U.S.C. § 552(a)(4)(B) (2000).

      . CORA states in pertinent part:
      [Alny person denied the right to inspect any record covered by this part 2 may apply to the district court of the district wherein the record is found for an order directing the custodian of such record to show cause why the custodian should not permit the inspection of such record....
      § 24-72-204(5), 7B C.R.S. (2003).

      . Because the parties have not presented any issues regarding the first two prongs of the test, we do not address those prongs.

      . While we note that this constitutional right to privacy exists, and could possibly be a bar to access of public records, we do not need to engage in that discussion in this case. Because we find that the diary here is not a public record, it does not come under the provisions of CORA. Thus, there is no need to discuss what would essentially be a defense to its disclosure.