author: Chief Judge HUME.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Erik Brendan JENSEN, Defendant-Appellant.
    No. 99CA1871.
    Colorado Court of Appeals, Div. II.
    July 19, 2001.
    As Modified on Denial of Rehearing Sept. 27, 2001.

      Certiorari Denied Oct. 15, 2002.

      Ken Salazar, Attorney General, Julia A. Thomas, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    Haddon, Morgan & Foreman, P.C., Norman R. Mueller, Rachel A. Bellis, Denver, CO, for Defendant-Appellant.

       Chief Justice MULLARKEY and Justice BENDER would grant as to the following issue:
      Whether Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 LEd.2d 720 (1991), overrides CRE 404(a)'s proscription against introducing irrelevant evidence of the victim's good character in a non-capital homicide case.

   Opinion by

Chief Judge HUME.

Defendant, Erik Brendan Jensen, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree murder, conspiracy to commit murder, accessory to a crime, and tampering with physical evidence. We affirm.

Defendant was arrested in connection with the murder of his friend's mother. Before the murder, the son (codefendant) told defendant and a third friend (accomplice) that he intended to kill his mother and asked defendant to help him clean up afterward. Following the murder, defendant and the accomplice assisted codefendant in cleaning the apartment where the murder occurred. Co-defendant confessed to the murder and was tried separately from defendant.

Defendant testified at his trial that on the evening of the murder, he drove codefendant home and waited in the car for about thirty minutes smoking marijuana. He then walked up to the apartment where, to his surprise, the victim answered the door. - As defendant entered the apartment, however, codefendant hit his mother in the head with a fireplace tool. Defendant admitted that he provided codefendant with plastic wrap to suffocate the victim and that he "dropped" the fireplace tongs on the victim. Codefend-ant then used the tongs to strangle his mother.

In exchange for immunity, the accomplice testified at defendant's trial that defendant told him that he had hit the victim three times in the head with the tongs, and that the last time, the tool "got stuck in her head; and when he pulled it out, that's how the blood got on the ceiling." Defendant and codefendant paged the accomplice to come and help clean the murder scene, and when he arrived, defendant answered the door with blood on his face.

The accomplice also testified that code-fendant had previously told him he was going to kill his mother that night because she had threatened to send him to a military school and that defendant was "seared shitless."

Following trial to a jury, defendant was convicted of first degree murder, along with the conspiracy and accessory charges. He was sentenced to life in prison without parole on the murder charge and concurrent sentences of twenty-four years and six years on the conspiracy and accessory counts.

This appeal followed.

L.

Defendant first argues that the trial court denied him his right to confrontation of a witness by admitting the codefendant's hearsay statements to the accomplice under CRE as statements against penal interest. We do not agree.

In People v. Newton, 966 P.2d 563 (Colo.1998), the court articulated a three-part test to determine whether a statement inculpating a defendant may be admitted under CRE 804(b)(8) and will also satisfy the United States and Colorado Constitutions: (1) the witness must be unavailable, as required by CRE 804(a); (2) the statement must tend to subject the declarant to criminal liability and must be the kind of statement that a reasonable person in the declarant's position would not have made unless the person believed it to be true; and (8) corroborating cireum-stances at the time the statement was made must demonstrate the trustworthiness of the statement. In this third inquiry, the court should consider when and where the statement was made, what prompted the statement, how the statement was made, and the substance of the statement.

In addition, the court held in Newton that a precise statement against penal interest and related collaterally neutral statements are admissible under CRE 804(b)(8) unless they are so self-serving as to be unreliable or the declarant had a significant motivation to curry favorable treatment.

Here, the trial court found that codefend-ant was unavailable as a witness and that his statement relating his intention to kill his mother was against his penal interest and was not self-serving. The court also found that the codefendant lacked motivation to curry favorable treatment, because his statement was made to a friend and not to a law enforcement officer.

A.

Initially, we reject defendant's argument in his reply brief that the People failed to prove that codefendant was unavailable under the decision in People v. Barnum, 23 P.3d 1237 (Colo.App.2001)(cert. granted, June 11, 2001).

Defendant appeared to stipulate codefend-ant's unavailability both at the suppression hearing and in his opening brief on appeal to this court where he acknowledged that "the statements were clearly against the unavailable co-defendant's penal interest." See People v. Czemerynski, 786 P.2d 1100 (Colo.1990)(issues not raised in appellant's initial brief will normally not be considered on appeal).

Moreover, in Barnum, there was evidence that the codefendant wished to testify, which is not the case here. Under these cireum-stances, we perceive no reversible error in the court's determination that codefendant was unavailable under CRE 804(a)(1). See Barnum, supra (neither case law nor CRE 804(a)(1) require the physical production of the declarant in every instance before a determination of unavailability can be made).

B.

Defendant agrees that the statements were against codefendant's penal interest, but argues that the trustworthiness factor has not been satisfied because the statements were made to and reported by an immunized accomplice. We are not persuaded.

While a codefendant's statements introduced without the benefit of cross-examination are inherently unreliable when the government is involved in the statements' production, Lilly v. Virginia, 527 U.S. 116, 137, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); Stevens v. People, 29 P.3d 305 (Colo.2001); People v. Farrell, 10 P.3d 672 (Colo.App.2000)(cert. granted Oct. 10, 2000), such is not the case here.

Rather, here, codefendant was not in custody, his statements were not made to police, nor were they a result of leading questions or coercion, or made in the hope of any lenity or favorable treatment. Instead, the statements were made to a friend who testified about them in court, who was subject to cross-examination, and whose own credibility was a question for the jury to determine. We therefore conclude that the court did not err in admitting the statements.

IL

Defendant next contends that the admission of hearsay statements made by the victim violated the rules of evidence and violated his right to confront witnesses against him. We do not agree.

At issue are the victim's statements to her husband and to a close friend describing a confrontation she had with defendant and the accomplice. The husband testified that the victim had called him at work, extremely upset and erying, and told him that defendant and the accomplice had come by while she was in the driveway washing her car. The two teenagers got out of their car, approached her "very menacingly" and called her names. The victim's friend provided similar testimony.

At a pretrial hearing, the trial court deemed the statements admissible under the residual hearsay exception of the former CRE 803(24), now CRE 807. We review evidentiary challenges that raise constitutional concerns under a harmless error standard. Blecha v. People, 962 P.2d 931 (Colo. 1998).

People v. Fuller, 788 P.2d 41, 744 (Colo. 1990), outlines five prerequisites to admission of statements under the residual hearsay exception:

the statement is supported by cireumstan-tial guarantees of trustworthiness; the statement is offered as evidence of material facts; the statement is more probative on the points for which it is offered than any other evidence which could be reasonably procured; the general purposes of the rules of evidence and the interests of justice are best served by the admission of the statement; and the adverse party had adequate notice in advance of trial of the intention of the proponent of the statement to offer it into evidence.

Using this framework, the trial court found that the statements were supported by circumstantial guarantees of trustworthiness. Although the court focused on the fact that the statements were corroborated by defendant himself, the record indicates that the victim's statements had sufficient indicia of reliability to satisfy constitutional concerns. See Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 LEd.2d 638 (1990)(relevant circumstances include only those that surround the making of the statement).

In considering the trustworthiness of a statement, courts should examine the nature and character of the statement, the relationship of the parties, the probable motivation of the declarant in making the statement, and the cireumstances under which the statement was made. See Fuller, supra.

Here, the victim volunteered spontaneous statements recounting the incident to her husband and to a close friend whom she had known for years. Her description of the incident was not self-serving, nor did she have an apparent motive to lie. She had personal knowledge of the events she de-seribed, and there was no reason to question her ability to perceive, remember, or recount the incident.

The court further found that the evidence tended to establish a hostile relationship between the victim and defendant. Defendant's motivation to participate in killing the victim is a material fact. See Fuller, supra. In a homicide trial, evidence of prior threats, mistreatment, or malice by the defendant toward the victim is admissible to show the defendant's motive and culpable mental state. People v. Gladney, 194 Colo. 68, 570 P.2d 231 (1977).

Because the victim was deceased, the court concluded that the statements were more probative than any other available evidence portraying her relationship with defendant. The court also observed that "the interests of justice are also promoted by having the complete facts surrounding an incident available to the jury." '

Because defendant concedes that he received sufficient notice of the People's intent to introduce the statements at trial, we conclude that all of the factors mandated by CRE 807 and Fuller are satisfied in this case. Thus, we perceive no error in the trial court's admission of the victim's statements.

IIL

Defendant also argues that the prosecution elicited improper evidence of the vie-tim's good character. We perceive no reversible error.

During direct examination, the victim's husband, mother, and best friend testified regarding positive attributes of the victim's character. Because defendant failed to object to any of this testimony, we review only for plain error. See Wilson v. People, 743 P.2d 415 (Colo.1987).

Prosecutors are allowed to present crime victims as real persons who suffered real injuries. See Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 LEd2d 720 (1991)(prosecution may argue the human cost of the crime and the uniqueness of the vie-tim); People v. Marin, 686 P.2d 1351, 1355 (Colo.App.1983) ("Death is a very personal concept and one which, if spoken of in purely an abstract, antiseptic manner, is drained of its meaning.").

Consequently, we perceive no error, much less plain error, in the People's portrayal of the victim.

IV,

Defendant also contends that prosecutorial misconduct, both in cross-examination of defendant and in closing statements, requires reversal. We are not persuaded.

Defendant specifically complains of three questions during his cross-examination, which the district attorney withdrew upon defense objection. One question classified defendant's testimony as "new," another de-seribed defendant as "cool, calm, and collected" after the murder, and the last described defendant as the "best dressed teenager that's come into this courtroom." Defendant also argues that the prosecutor improperly characterized the murder as a "slaughter" and that he "gratuitously expressed his agreement" with defendant's testimony that he had done "nothing smart" on the night of the murder.

Because defendant made no contemporaneous allegation of prosecutorial misconduct with regard to the withdrawn questions, and did not object to the final two comments, we review only for plain error to determine if defendant's substantial rights were affected. See People v. Constant, 645 P.2d 843 (Colo.1982). Unless a prosecutor's misconduct is "glaringly or tremendously" improper, it is not plain error under Crim. P. 52(b) where no objection to the behavior was raised. People v. Simbolo, 188 Colo. 49, 532 P.2d 962 (1975). See also Wilson v. People, 743 P.2d 415 (Colo. 1987) (plain error occurs when the fundamental fairness of the trial is so undermined as to cast doubt on the reliability of conviction).

A.

Defendant directs us to no Colorado case law supporting his proposition that a prosecutor's withdrawal of a question before an answer is provided constitutes misconduct, nor is there any indication that the district attorney made or withdrew his inquiries in bad faith. Further, defendant fails to show any prejudice resulting from the comments. In the absence of actual prejudice, even improper prosecutorial conduct does not constitute reversible error. People v. Roy, 723 P.2d 1345 (Colo.1986). Accordingly, we perceive no plain error here.

B.

We similarly reject defendant's contention that the prosecutor's closing argument was improper and prejudicial, requiring reversal.

Again, defendant made no contemporaneous objection, and thus we review only for plain error. "[PJrosecutorial misconduct in closing arguments rarely, if ever, is so egregious as to constitute plain error...." People v. Sepeda, 196 Colo. 13, 25, 581 P.2d 723, 732 (1978).

After a review of the record, we conclude that none of the prosecutor's comments, even if improper, warrant reversal.

V.

Lastly, defendant contends that the trial court improperly struck a defense exhibit. We perceive no reversible error.

Trial courts have broad discretion in determining the admissibility of evi-denee. Absent an abuse of discretion, a trial court's evidentiary rulings will be affirmed. People v. Ibarra, 849 P.2d 33 (Colo.1993).

A defense expert testified during trial that in his opinion, defendant's marijuana intoxication, coupled with acute stress, prevented defendant from formulating the specific intent required to convict him of first degree murder. The expert used a diagnostic criteria exhibit for acute stress disorder to explain his testimony.

Although the prosecution's objection to the expert testimony was overruled, no objection was made as to the exhibit itself until the jury instruction conference. At that time, the court agreed to strike the exhibit because it:

lays out a diagnostic criteria [sic] which would, I think, have a tendency to suggest to the jury that this might be a defense to the crime, even though it's not dealt with in that manner in the instrue-tions. And the result, I think, would be confusing.

We perceive no abuse of discretion in the court's determination to strike the exhibit.

The judgment is affirmed.

NEY and CASEBOLT, JJ., concur.


source: Caselaw Access Project

author: Judge METZGER.

license: Public Domain

text:
    Karen PACHECO, Plaintiff-Appellant, v. Lawrence S. ALLEN, M.D.; Michael K. Miller, M.D.; Timothy R. Collins, M.D.; and Colorado Permanente Medical Group, P.C., Defendants-Appellees.
    No. 00CA1624.
    Colorado Court of Appeals, Division I.
    Sept. 13, 2001.
    Certiorari Granted Sept. 23, 2002.

      Law Offices of Gary S. Cohen, Gary S. Cohen, Christine Van Coney, Denver, CO, for Plaintiff-Appellant.
    Pryor, Johnson, Montoya, Carney & Karr, P.C., Elizabeth C. Moran, Daniel M. Hubbard, Teresa L. Thrailkill, Englewood, CO, for Defendants-Appellees.
   Opinion by

Judge METZGER.

In this wrongful death action, plaintiff, Karen Pacheco, appeals the judgment confirming the arbitration award entered in favor of defendants, Lawrence S. Allen, M.D., Michael K. Miller, M.D., and Timothy R. Collins, M.D. (defendant physicians), and Colorado Permanente Medical Group, P.C. (CPMG), their employer. We reverse and remand for further proceedings.

Plaintiff's husband died following extended hospitalization for treatment of pancreatitis. Plaintiff subsequently commenced this wrongful death action, alleging that defendant physicians had been negligent in diagnosing and treating her husband.

The medical services at issue were provided by defendant physicians, who were employed by CPMG, a physician group that had contracted with Kaiser Foundation Health Plan of Colorado (Kaiser) to provide medical care to Kaiser enrollees. Kaiser's Medical and Hospital Service Agreement requires arbitration of Medical Malpractice Claims:

It is understood that any claim of medical malpractice, including any claim that medical services were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered or omitted, will be determined by submission to binding arbitration in accordance with the provisions of the "Uniform Arbitration Act of 1975", part 2 of article 22 of title 18, Colorado Revised Statutes, and not by a lawsuit or resort to court process except as Colorado law provides for judicial review of arbitration proceedings....

Defendants filed a motion to compel plaintiff to submit to binding arbitration, as required by her husband's agreement with Kaiser. Plaintiff objected. The trial court granted the motion, and the case was arbitrated.

After the arbitrator entered an award in favor of defendants, plaintiff filed a motion to vacate the award, alleging that no enforceable arbitration agreement existed. She also asked the court to reconsider its order compelling arbitration. This appeal follows the denial of her requests by the trial court, a different judge presiding.

Plaintiff contends the trial court erred in determining she was a party to the agreement and that, therefore, she was bound by its requirement that disputes must be arbitrated. We agree.

The agreement provides:

Claims ... shall be submitted to binding arbitration if the claim is asserted:
(a) By a Member, or by a Member's heir or personal representative, or by a person claiming that a duty to him or her arises from a Member's relationship with Health Plan, Hospitals or Medical (roup incident to this Agreement ...
(b) For any reason, including, but not limited to, death, mental disturbance, bodily injury or economic loss arising from the rendition or failure to render services or the provision or failure to provide benefits under this Agreement or the consideration or defense of claims described in this Section,
(c) For monetary damages exceeding the jurisdictional limit of the Smail Claims Court, and
(d) Against one or more of the following
(1) Health Plan,
(ii) Hospitals,
(iii) Medical Group,
(iv) Any Physician, or
(v) Any employee or agent of the foregoing.

Because an arbitration agreement is a contract, a party cannot be required to submit a dispute to arbitration that he or she has not agreed to submit. See Everett v. Dickinson & Co., 929 P.2d 10 (Colo.App.1996). Similarly, a nonparty to an agreement containing an arbitration clause may not be compelled to use arbitration procedures. See City & County of Denver v. District Court, 939 P.2d 1353 (Colo.1997); see also Eychner v. Van Vleet, 870 P.2d 486 (Colo.App.1993).

The record contains no evidence that plaintiff agreed to submit her claim to arbitration or that she signed the agreement. Thus, she is not a party to the agreement and is not bound by its terms.

Additionally, we conclude that plaintiff is not bound by the arbitration provision because she is not an "heir" of her husband. In wrongful death actions, that term refers only to lineal descendents of the deceased and not to a spouse. See Hindry v. Holt, 24 Colo. 464, 51 P. 1002 (1897) Whitenhill v. Kaiser Permanente, 940 P.2d 1129 (Colo.App.1997). Thus, the agreement's provision binding an heir does not apply to plaintiff.

Further, we note that plaintiff's wrongful death claim is not covered by the terms of the agreement.

Colorado law is clear that the cause of action created by the Wrongful Death Act, § 13-21-201, et seq., C.R.S.2001, is separate and distinct from the cause of action the deceased would have had for personal injuries had he survived. The Wrongful Death Act is not a survival statute. Fish v. Liley, 120 Colo. 156, 208 P.2d 930 (1949). Therefore, as a division of this court held in Rowell v. Clifford, 976 P.2d 363 (Colo.App.1998), even when the statute of limitations would have barred the decedent's personal injury claim as of the time of his death, the decedent's surviving spouse had a separate and viable wrongful death claim with its own statute of limitations.

Because plaintiff's cause of action for wrongful death here is wholly separate and distinct from any action her husband might have maintained, the arbitration provision is not applicable to her.

Finally, we reject defendants' assertions that the broad language of the agreement, which states that "claims ... by a member's heir ... for any reason ... against any physician" shall be submitted to binding arbitration, makes it applicable to plaintiff. The omission of the term "spouse," assuming one can bind the other, and the fact that a wrongful death action is wholly separate from a claim for personal injuries are critical distinctions, which we cannot overlook. Moreover, even if we were to say that the agreement is ambiguous, we would be required to construe it against Kaiser as the drafter. State Farm v. Stein, 940 P.2d 384 (Colo.1997).

Nor do we agree with defendants that the decision in Herbert v. Superior Court, 169 Cal.App.3d 718, 215 Cal.Rptr. 477 (1985), compels a different result. There, the California court held that a decedent's spouse and adult children, none of whom had signed the agreement to arbitrate, were nevertheless bound by it. The court reasoned that nonsigning heirs should be bound by their decedent's agreement to arbitrate all disputes for the following reasons: (1) a single cause of action exists in the heirs for the wrongful death of a decedent; (2) a wrongful death action, in a practical sense, is derivative of a cause of action in the deceased; (3) it is unrealistic and impractical to require the signatures of all the heirs (who are not identified until the time of the decedent's death); (4) decedents can bind their heirs through contracts and wills; and (5) arbitration is neither an extraordinary procedure nor disadvantageous to the heirs.

Because an action under the Colorado Wrongful Death Act is not derivative of a cause of action in the deceased, Fish v. Ltley, supra; Rowell v. Clifford, supra, this difference in the characterization of wrongful death actions renders the decision in Herbert v. Superior Court, supra, inapposite.

Consequently, the decedent's agreement with Kaiser does not apply to plaintiff, and the trial court erred in requiring her to arbitrate her claim.

In light of this disposition, it is unnecessary to address plaintiffs other contentions of error.

The judgment is reversed, and the case is remanded for further proceedings.

Chief Judge HUME and Judge ROY, concur.


author: Judge TAUBMAN.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph Crazyhorse ROYBAL, Defendant-Appellant.
    No. 00CA0667.
    Colorado Court of Appeals, Div. I.
    Nov. 23, 2001.
    Rehearing Denied March 7, 2002.
    Certiorari Denied Sept. 23, 2002.

      Ken Salazar, Attorney General, Evan W. Jones, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    Linda Perkins Cooke, Boulder, CO, for Defendant-Appellant.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2001.

   Opinion by

Judge TAUBMAN.

Defendant, Joseph Crazyhorse Roybal, appeals the judgment of conviction entered on a jury verdict finding him guilty of two counts of first degree murder (after deliberation and felony murder, the sentences for which were merged) and first degree burglary. We affirm.

At 6:00 p.m. February 2, 1999, Denver police officers arrested defendant in connection with a homicide and burglary committed on January 25, 1999. The arresting officer advised defendant of his Miranda rights and asked him if he wished to speak with a detective. Defendant answered "yes."

After being transported to Denver police headquarters and before any formal booking process, defendant was contacted in his holding cell by a second Denver police officer at about 7:55 pm. Defendant again indicated that he wanted to talk with police. Thereafter, the police officer led defendant to an interview room and read him his Miranda rights. Defendant gave a brief videotaped account of the burglary and the circumstances surrounding the homicide. The interview ended at 8:55 p.m. Defendant was then taken to the Denver city jail where he was booked.

The next morning, on February 8, 1999, the lead detective investigating the homicide retrieved defendant from the jail and took him back to police headquarters. After being advised again of his Miranda rights, defendant gave another videotaped statement. The interview began at 7:57 a.m. and concluded at 8:49 a.m.

While returning to the jail, defendant asked the detective if he could add something to his statement. The detective confirmed that defendant understood his constitutional rights and subsequently took a third statement from defendant. This interview lasted approximately eight minutes and ended at 9:07 a.m.

After the third interview, the detective asked defendant if he would be willing to take a polygraph examination. Defendant agreed.

A second detective conducted the polygraph examination. This detective also advised defendant of his Miranda rights and obtained permission to conduct the examination. The polygraph examination began at approximately 10:50 a.m. on February 8, 1999.

In each of the first three interviews, defendant admitted that he was present, with his codefendant, during the burglary and homicide. Defendant admitted to striking the victim in the head with a bottle, but attributed the death of the victim to his codefend-ant. However, during the polygraph examination, defendant acknowledged that he had stabbed the victim once in the chest.

After learning of the new statements that defendant had given during the polygraph examination, the first detective conducted a fifth interview of defendant, during which defendant again admitted that he stabbed the victim once in the chest. The detective returned defendant to the city jail at 1:10 p.m. on February 3.

Defendant was scheduled to appear in court for his first advisement pursuant to Crim. P. 5(a) at 10:80 a.m. on February 8. The record reveals that advisements are conducted daily at 10:80 a.m. for all inmates who are in jail by 2:00 a.m. the previous night. When defendant was not present for his scheduled advisement on February 3, the court bailiff continued his first advisement until the next day. Defendant first appeared in court for his Crim. P. 5(a) advisement at 10:30 am. on February 4, 1999, over forty-one hours after his arrest.

I. Voluntariness of Statements

Defendant contends that the totality of the cireumstances rendered all his statements during the five interrogations involuntary. We disagree.

We must defer to the trial court's findings of fact, and we will not substitute our judgment for that of the trial court unless its findings are clearly erroneous. However, a trial court's legal conclusions are subject to de novo review. People v. Romero, 953 P.2d 550, 555 (Colo.1998).

A confession made by a suspect is admissible at trial only if it was voluntarily made. People v. Raffaelli, 647 P.2d 230 (Colo.1982). In determining whether a defendant's statements are voluntary, a trial court must consider the totality of the circumstances surrounding the statements. People v. Valdes, 969 P.2d 208 (Colo.1998).

The supreme court has articulated several factors to consider when evaluating the voluntariness of a statement in light of the totality of the cireumstances, including: whether the defendant was in custody or was free to leave and was aware of his or her "inducing the statements. situation; whether Miranda warnings were given prior to any interrogation and whether the defendant understood and waived his or her Miranda rights; whether the challenged statement was made during the course of an interrogation or instead was volunteered; whether any overt or implied threat or promise was directed to the defendant; the method and style employed by the interrogator in questioning the defendant and the length and place of the interrogation; and the defendant's mental and physical condition immediately prior to and during the interrogation, as well as the defendant's educational background, employment status, and prior experience with law enforcement and the criminal justice system. People v. Gennings, 808 P.2d 839 (Colo.1991); People v. Lopez, 946 P.2d 478 (Colo.App.1997). Using the Gennings factors and any other relevant evidence, a trial court must determine whether the defendant's will was overborne by improper state conduct. If coercive conduct is found, a trial court must further conclude that such conduct played a significant role in People v. Valdez, supra.

Here, after a lengthy hearing and after viewing videotaped interviews with defendant, the trial court made clear, specific findings related to the Gennings factors. It found that defendant was orally advised of his Miranda rights, agreed to talk with detectives, was not suffering from any significant emotional or physical conditions, was not under the influence of drugs or alcohol, was not suffering from any sleep deprivation, and was eighteen years old and had his general equivalency diploma.

Although the trial court did not address individually each of the Gennings factors, it heard testimony related to each factor, and a review of the record supports the trial court's finding that defendant's statements were voluntary.

In addition, the trial court determined, with record support, that defendant's statements regarding his role in the offense did not result from coercive police tactics such as promises or express or implied threats. Defendant testified that he had received his Miranda warnings more then six times and that he understood and waived these rights. In fact, defendant expressed a complete willingness to cooperate with police on several occasions. After hearing conflicting testimony regarding why defendant cooperated with police and the manner in which the police conducted the polygraph examination, the trial court concluded that defendant's testimony was not credible and elected to give more eredence to the police officers' testimony.

Because the trial court's findings of fact are supported by competent evidence in the record, see People v. Valdez, supra; the trial court's ruling will not be disturbed.

IIL. Crim. P. 5(a)

Defendant next contends that the trial court erred when it found no unnecessary delay in presenting defendant for a Crim. P. 5 advisement. Again, we disagree.

Crim. P. 5(a)(1) requires a peace officer making an arrest to take the arrested person "without unnecessary delay before the nearest available county or district court."

Crim. P. 5(a)(2) imposes on the judge at the accused's first appearance the duty to inform the suspect of, and to make certain that the suspect understands, those basic rights applicable upon the initiation of formal criminal proceedings, especially the privilege against self-inerimination and the right to the appointment of an attorney at state expense if the suspect is financially unable to retain one.

The purpose of Crim. P. 5 is to prevent abuses in the detention process and, more importantly, to place the accused in early contact with a judicial officer, so that the right to counsel may not only be clearly explained but also be implemented upon the accused's request. People v. Heintze, 200 Colo. 248, 614 P.2d 367 (1980).

The supreme court has declined to adopt a per se rule of exclusion of evidence for Crim. P. Rule 5 violations and instead has articulated a two-pronged test requiring defendants to show (1) that the delay was unnecessary and (2) that some prejudice resulted therefrom. See People v. Heintze, supra.

A necessary delay is one reasonably related to the administrative process attendant upon the arrest of an accused. Such delays are usually associated with fingerprinting, photographing, taking inventory of personal belongings, preparing necessary charging documents and reports, and other legitimate administrative procedures. People v. Heintze, supra.

However, where the delay is occasioned by the decision of law enforcement officers to conduct a custodial interrogation of the defendant before presenting him or her to a judicial officer for a proper advisement of rights, such a delay is not a necessary delay within the meaning Crim. P. 5(a). People v. Raymer, 662 P.2d 1066 (Colo.1983).

Here, the trial court found that there was no unnecessary delay between defendant's arrest and his initial appearance before a judicial officer. As a result, the trial court made no findings as to prejudice.

Defendant argues that the trial court applied an incorrect legal standard and that the record supports a finding of unnecessary delay. However, even if we were to conclude that the delay was unnecessary, defendant has not shown that he was prejudiced by this delay. See People v. Aguirre, 839 P.2d 483 (Colo.App.1992)(appellate court can affirm judgment based on reasoning different from that of trial court).

The supreme court has instructed courts to consider several factors in determining prejudice, including:

whether an attorney had already been retained by, or had been made available to, the defendant during the period of unnee-essary delay; whether that attorney was accessible to the defendant prior to the challenged statement; and whether the defendant freely and knowingly waived the presence of the attorney in making the challenged statement to the police.

People v. Heintze, supra, 200 Colo. at 253-54, 614 P.2d at 372.

Even repeated Miranda warnings are not a substitute for the speedy presentment requirements of Crim. P. 5. People v. Heinize, supra, 200 Colo. at 253, 614 P.2d at 371 (citing Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), for the proposition that proper Miranda warnings do not always assure that the right to remain silent and the right to counsel will remain unfettered throughout the interrogation process).

Prejudice does not require a showing of intentional or willful disregard of Crim. P. 5 requirements by police officers. Rather, a defendant may be prejudiced by prolonged indifference or inadvertence to his or her rights. People v. Heinize, supra, 200 Colo. at 253, 614 P.2d at 371.

Instead, the appropriate inquiry in determining the existence of prejudice is whether the unnecessary delay reasonably contributed to the acquisition of the challenged evidence. People v. Heintze, supra.

Subsequent cases provide further guidance in analyzing the prejudice prong. See-generally People v. Garcia, 746 P.2d 560 (Colo.1987)(the type of prejudice that will justify relief for a violation of Crim. P. 5 must be related to the harm the rule was promulgated to prevent, and the defendant must show unfair prejudice or the denial of some basic constitutional right by reason of the failure to comply with the rule); People v. Raymer, supra (relevant period for purposes of Crim. P. 5(a) is the time between the arrest and the acquisition of the challenged evidence); People v. Johnson, 653 P.2d 737 (Colo.1982)(prejudice can be inferred if the unreasonable delay reasonably contributed to the challenged evidence); People v. La Plant, 670 P.2d 802 (Colo. that because defendant was advised of his Miranda rights, and his confession was otherwise completely voluntary, any failure to comply strictly with Crim. P. 5(a) was harmless).

Here, defendant argues that had he been in court for his initial appearance on the morning of February 3, 1999, he would not have been at the police station making incriminating statements. However, to demonstrate prejudice, defendant must establish more than this attenuated causal connection.

Courts of other jurisdictions considering state constitutional, statutory, and eriminal procedure provisions similar to Crim. P. 5(a) have required that, to establish prejudice, a defendant show a nexus between the delay and the challenged evidence. See Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973). In other words, a defendant must establish that the delay induced, caused, or was used to extract a confession. See-generally People v. Thompson, 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883 (1980) (defendant must show the illegal detention produced the admissions or that there was an essential connection between the illegal detention and the confession); Pawloski v. State, 269 Ind. 350, 380 N.E.2d 1230 (1978)(when a confession is the product of the detention, it must be suppressed, but when it is so independent of that detention as to be the product of free will, it will not be suppressed); People v. Wynn, 102 Misc.2d 785, 424 N.Y.S.2d 664 (N.Y.Sup.Ct.1980)(confession suppressed because without the delay, the defendant's waiver of counsel and confession would not have occurred).

Here, the record reflects that the delay did not cause defendant to confess. Rather, defendant willingly made statements to the police during the delay, not as a result of it. Furthermore, the record does not reveal that the prejudice defendant complains of is related to the type of harm that Crim. P. 5 was designed to prevent.

As discussed in Part I, there were no abuses in the detention process. Defendant was given multiple Miranda warnings, understood and waived his rights, and repeatedly expressed a desire to talk with police. Defendant's interrogation was unaccompanied by any coercive police conduct. More importantly, the record does not reveal, and defendant does not argue, that early contact with a judicial officer would have changed defendant's willingness to waive his rights to counsel and to remain silent.

Finally, this case does not present the situation in Oregon v. Hass, supra, that the supreme court in Heinize was trying to prevent. The defendant in Oregon v. Hass received Miranda warnings and invoked his right to counsel. However, before police officers made an attorney available to him, the defendant confessed. Here, defendant never asserted his right to an attorney.

Accordingly, defendant has not demonstrated that the delay in bringing him before a judge for a Crim. P. 5 advisement induced or caused him to make the incriminating statements. Thus, we conclude that defendant was not prejudiced by any delay.

III. Motion to Continue

Defendant also contends that the trial court abused its discretion in denying his request for a continuance so that his attorney could secure the presence of a witness having material evidence related to defendant's duress defense. We are not persuaded.

The grant or denial of a motion for continuance lies within the sound discretion of the trial court, and a conviction will not be overturned on appeal unless an analysis of the totality of the cireumstances shows that the trial court's denial of the continuance was an abuse of discretion. People v. Bakari, 780 P.2d 1089 (Colo.1989); People v. Davis, 849 P.2d 857 (Colo.App.1992), aff'd, 871 P.2d 769 (Colo.1994).

An abuse of discretion occurs only when, under the cireumstances, a ruling is manifestly arbitrary, unreasonable, or unfair. People v. Crow, 789 P.2d 1104 (Colo.1990).

No mechanical test exists for determining whether the denial of a request for a continuance constitutes an abuse of discretion. Rather, the answer must be found within the cireumstances of each case, particularly in the reasons presented to the trial judge at the time of the request. People v. Hampton, 758 P.2d 1344 (Colo.1988).

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. CRE 401. Facts collateral to or bearing so remotely upon an issue that they afford only conjectural inference should not be admitted into evidence. People v. Botham, 629 P.2d 589 (Colo.1981).

Whether evidence is relevant is within the sound discretion of the trial court, and its determination will not be disturbed unless there was an abuse of discretion. People v. Melillo, 25 P.3d 769 (Colo.2001). The trial court's discretion to determine relevancy is broad. People v. Gutierrez, 1 P.3d 241 (Colo.App.1999)

Here, on January 21, 2000, defendant made an oral motion to continue the trial. As grounds, defendant's counsel stated, among other things, that he needed more time to investigate statements made by a potential witness who was apparently present when defendant's codefendant planned the burglary. Noting that the trial date had been continued once and that defendant's counsel and the People were meeting that afternoon to address discovery issues, the trial court denied the motion, but stated that defendant could file a written motion if a need for a continuance still existed after the meeting.

Defendant filed a written motion for continuance and orally renewed the motion on the morning of trial, stating: (1) he needed more time to secure the presence of the witness; (2) the witness would testify that defendant was not present when defendant's codefendant and wife were planning the burglary; (8) this testimony supported defendant's duress defense and his claim that he did not intend to kill the victim; and (4) he learned about this evidence on February 1, 2000, when the People transmitted the witness's statements to him. The witness gave his statements to a detective on January 24, 2000. The trial court denied defendant's motion, stating that it was not convinced the testimony was material.

We are not persuaded by defendant's argument that the witness's anticipated testimony was relevant to his duress defense. The fact that defendant was not present during a conversation where defendant's code-fendant and wife indicated that they were going to commit a burglary is simply too remote to establish that defendant acted under duress. Accordingly, we conclude that the trial court did not abuse its discretion when it determined that the witness's testimony would not be material.

The judgment is affirmed.

NEY and PIERCE, JJ., concur.


author: Judge NEY.

text:
    Robert A. WEST, Plaintiff-Appellant, v. EVERGREEN HIGHLANDS ASSOCIATION, a Colorado non profit corporation, Defendant-Appellee.
    No. 00CA1586.
    Colorado Court of Appeals, Div. I.
    Nov. 23, 2001.
    Rehearing Denied March 14, 2002.

    Certiorari Granted Sept. 23, 2002.

      Stephen A. Groome, Conifer, CO, for Plaintiff-Appellant.
    Winzenburg, Leff, Purvis & Payne LLP, Lawrence B. Leff, Carey Gunn Helm, for Defendant-Appellee.

       Meizger, J., would GRANT.

   Opinion by

Judge NEY.

Plaintiff, Robert A. West, appeals the judgment entered in favor of defendant, Evergreen Highlands Association, declaring valid a restrictive covenant affecting his real property. We reverse and remand.

This case concerns property located in Evergreen Highlands Subdivision-Unit 4, in Jefferson County. In 1972, protective covenants for the subdivision were recorded in Jefferson County. Paragraph 18 of those covenants stated that:

These covenants shall run with the land and shall bind all parties and all persons claiming under them for a period of ten years from the date of filing ... and shall automatically be continued thereafter for successive periods of ten years each; provided, however, that the owners of seventy-five percent of the lots which are subject to these covenants ... may change or modify any one or more of said restrictions, by executing and acknowledging an appropriate agreement ... (emphasis added).

In 1982, an amendment to the protective covenants was filed with Jefferson County. The recitals to the amendment indicated that paragraph 13 of the 1972 covenants allows for "amendment" of the protective covenants.

Nothing in the 1972 protective covenants or in the 1982 amendment thereto provided for membership in the association, assessment of dues, or the power to subject subdivision property to a lien for the nonpayment of dues.

Subsequently, in 1986, plaintiff purchased real property located in the subdivision. He purchased his property subject to the 1972 protective covenants and to the 1982 amendment thereto.

In December 1995, defendant recorded a document entitled "Written Consent to Amend Protective Covenants for [the Subdivision] Prepared and Recommended by the Evergreen Highlands Association." It was signed by seventy-five percent of the subdivision lot owners, but not by plaintiff. This document purported to add a "new" article 16 to the protective covenants, which, among other things, required all lot owners in the subdivision to be members and pay dues to defendant and subjected the subdivision lots to liens for nonpayment of dues.

Defendant subsequently notified plaintiff that it would record a lien against his property for nonpayment of annual dues pursuant to article 16. In response, plaintiff filed this action seeking to have the 1995 written consent document declared invalid.

The court ruled that the covenant contained in the 1995 written consent document was valid and enforceable against plaintiff. This appeal followed. f

I.

Plaintiff contends that the trial court erred in interpreting paragraph 183 of the 1972 protective covenants to allow seventy-five percent of the subdivision lot owners to add a new restrictive covenant, binding all the property owners in the subdivision, when such restrictions were not addressed in either the 1972 protective covenants or the 1982 amendment thereto. We agree.

Construction of a covenant is a question of law that requires de novo review. Buick v. Highland Meadow Estates at Castle Peak Ranch, Inc., 21 P.3d 860 (Colo.2001).

When interpreting a restrictive covenant, courts will enforee it as written if it is clear on its face. When interpreting an unclear covenant, courts resolve all doubts against the restriction and in favor of free and unrestricted use of the property. Buick v. Highland Meadow Estates at Castle Peak Ranch, Inc., supra.

The language at issue from paragraph 13 of the 1972 protective covenants provides that "owners of seventy-five percent of the lots ... may change or modify any one or more of said restrictions." Plaintiffs position is that the 1995 amendment improperly adds article 16 to the protective covenants, when the 1972 protective covenants only allow existing covenants to be changed or modified by seventy-five percent of the lot owners.

Both parties agree this issue is one of first impression in Colorado.

A.

Plaintiff refers us to cases from other jurisdictions in which covenants allowing future modification or amendment were narrowly drafted. He argues that in those cases such narrowly drafted covenants, like paragraph 13 here, have been construed against restriction of property rights. We find those cases persuasive.

For example, in Lakeland Property Owners Ass'n v. Larson, 121 Ill.App.3d 805, T77 Ill. Dec. 68, 459 N.E.2d 1164, 1167 (1984), the court held that the language "to change the said covenants in whole or in part" did not permit the addition of a new covenant allowing a homeowners association to collect mandatory dues. The court concluded that the "provision permitting the change of covenants ... clearly directs itself to changes of existing covenants, not the adding of new covenants which have no relation to existing ones." Lakeland Property Owners Ass'n v. Larson, supra, 77 Ill.Dec. 68, 459 N.E.2d at 1169. See also Boyles v. Hausmann, 246 Neb. 181, 517 N.W.2d 610, 613 (1994)(ruling that the language to "change same in whole or in part" did not allow a majority of homeowners to adopt covenants restricting the uses of the relevant property because they were new and different from the existing covenants); Meresse v. Stelma, 100 Wash.App. 857, 999 P.2d 1267, 1269 (2000)(ruling that the language providing that existing covenants remain in effect until "majority vote of the then owners agree to change or alter them in full or in part" did not allow adoption of a new restrictive covenant that relocated an access road, because the covenant differed in nature from the existing covenants).

Here, the trial court relied on Windemere Homeowners Ass'n v. McCue, 297 Mont. 77, 990 P.2d 769, 772 (1999), in which the court found that the language providing that covenants could be "waived, abandoned, terminated, modified, altered or changed" was broad enough to authorize a new covenant not contemplated in the original restrictive covenants. See also Sunday Canyon Property Owners Ass'n v. Annett, 978 S.W.2d 654, 658 (Tex.App.1998)(finding a valid modification of the restrictive covenants, creating a mandatory property owners association, under the rationale that a majority of the lot owners could "contract with relation to their property as they see fit in the absence of contraventions of public policy and positive law").

The trial court also relied on Ticor Title Insurance Co. v. Rancho Santa Fe Ass'n, 177 Cal.App.3d 726, 732, 223 Cal.Rptr. 175, 178 (1986), in which the court reviewed language providing that any of the covenants may be "changed or modified" by approval of two-thirds of the lot owners. The homeowners association there argued that, with regard to an existing setback requirement, the "change or modify" language would only apply to a reduction, and not an increase, in the setback requirement. The court in Ticor Title ruled that the words "changed" and "modified" include any alteration, whether involving an increase or decrease; thus, the court presumed that two-thirds of the lot owners must approve any change or modification (e., any increase or decrease) in the setback requirement.

We are not convinced that the opinions relied upon by the trial court apply to the facts here. The language at issue in Windemere Homeowners Ass'n v. McCue, supra-"waived, abandoned, terminated, modified, altered or changed"-is significantly broader than the language at issue here. In addition, we do not consider Ticor Title Insurance Co. v. Rancho Santa Fe Ass'n, supra, relevant here, because the setback to be modified in that case was an existing restriction, as opposed to a new and unrelated restriction, as is at issue in this case.

Thus, we conclude that Lakeland Property Owners Ass'n v. Larson, supra, is persuasive and applicable to the facts presented here. The language in that case-'"to change the said covenants in whole or in part"-is similar in seope to the language in this case-"change or modify any one or more of said restrictions." Moreover, "any doubt relative to the meaning and application of the covenant must be resolved in favor of the unrestricted use of property." Dunne v. Shenandoah Homeowners Ass'n, 12 P.3d 340, 345 (Colo.App.2000).

Therefore, we follow the reasoning and interpretation set forth in Lakeland Property Owners Ass'n v. Larson, supra, that the amendment provision only allows changes to the existing covenants, not the creation and addition of new covenants that have no relation to the existing covenants.

Accordingly, our de novo interpretation of paragraph 18 of the 1972 protective covenants is that the plain and clear language of "change or modify" means that only a pre-existing covenant, related in subject matter, may be altered by seventy-five percent of the lot owners. Our review of the 1972 protective covenants, and the 1982 amendment thereto, does not reveal a restriction or covenant regarding membership in a homeowners association or payment of dues that could, in turn, be changed or modified by seventy-five percent of the lot owners.

Thus, we conclude that the trial court erred in interpreting paragraph 13 of the 1972 protective covenants to allow seventy-five percent of the subdivision lot owners to add article 16 as a new restrictive covenant requiring mandatory membership and mandatory dues and granting defendant the power to subject the property to liens for nonpayment of the dues.

B.

On appeal, defendant argues that plaintiff was on either actual or constructive notice of the restrictions contained in article 16, via documents or references in his chain of title. Specifically, defendant relies on the subdivision plat, which indicated that the park areas in the subdivision were to be conveyed to the homeowners association; the subsequent deeds conveying the park property; and defendant's articles of incorporation, which state that one of defendant's purposes is to maintain the park areas and determine annual membership and fees. Defendant thus argues that plaintiff was on notice of the possibility of change in existing restrictions and that the amended covenant making membership and fees mandatory simply reflected matters of which he was already on notice as a resident of the subdivision. Defendant argues that, as such, the trial court properly interpreted paragraph 18 of the 1972 protective covenants.

We are unpersuaded by defendant's argument that simply because plaintiff was on notice of the existence of a homeowners association, as a result, seventy-five percent of the lot owners could amend the covenants to make membership and payment of dues in a homeowners association mandatory.

Defendant also relies upon the 1982 amendment, which in its recitals indicated that paragraph 13 of the 1972 protective covenants allowed for the "amendment" of the covenants by seventy-five percent of the lot owners and that all of the lot owners in the subdivision were members of the association. The recital in the 1982 amendment-which in defendant's view authorizes "amendment" of the 1972 protective covenants cannot, in and of itself, expand or change the restrictions on the ability to modify contained in the 1972 protective covenants. See § 38-35-107, C.R.S8.2001.

Additionally, we note that the 1982 amendment does not provide for membership in the association, the setting of dues, or liens for nonpayment.

Even assuming, arguendo, that the recitals in the 1982 amendment served to expand the right to modify the protective covenants by seventy-five percent of the lot owners, by describing that right as the right to "amend," we would still conclude that only a pre-existing covenant could be modified or amended by seventy-five percent of the lot owners and, as such, made applicable to all lot owners in the subdivision. Seq eg., Caughlin Ranch Homeowners Ass'n v. Caughlin Club, 109 Nev. 264, 849 P.2d 310, 312 (1993)(provision allowing for "amendment" refers to the amendment of "existing covenants as opposed to the creation of new covenants unrelated to the original covenants").

IL.

Plaintiff also contends that the trial court's interpretation of the 1972 protective covenants constitutes a wrongful impairment or taking of his property rights in violation of the Fourteenth Amendment.

Because the record indicates that this constitutional argument was not raised in the trial court, we will not consider it here for the first time on appeal. City & County of Denver v. Desert Truck Sales, Inc., 837 P.2d 759 (Colo.1992).

Judgment reversed and the case is remanded with directions to enter judgment in favor of plaintiff, declaring invalid article 16 of the 1995 "Written Consent to Amend Protective Covenants for [the Subdivision] Prepared and Recommended by the Evergreen Highlands Association."

METZGER and TAUBMAN, JJ., concur.


author: Judge JONES.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joshua C. LAWRENCE, Defendant-Appellant.
    No. 99CA2431.
    Colorado Court of Appeals, Div. III.
    Dec. 6, 2001.
    As Modified on Denial of Rehearing Feb. 28, 2002.
    Certiorari Denied Oct. 15, 2002.

      Ken Salazar, Attorney General, John T. Bryan, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

       Justice KOURLIS does not participate.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VL, § 5(3), and § 24-51-1105, C.R.S.2001.

   Opinion by

Judge JONES.

Defendant, Joshua C. Lawrence, appeals the judgment entered on jury verdicts finding him guilty of twenty-seven counts of willful destruction of big game under § 83-6-117, C.R.S8.2001. We affirm.

I.

Defendant first contends that the trial court erred when it declined to suppress statements he gave to Department of Wildlife officers. He argues that he was in custody at the time of the interview and that the People failed to meet their burden of demonstrating that he knowingly, voluntarily, and intelligently waived his right to remain silent. We disagree.

An accused's statement during interrogation in a custodial setting is inadmissible unless it is provided pursuant to a valid waiver, which is made knowingly, voluntarily, and intelligently. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 LEd.2d 694 (1966); People v. Owens, 969 P.2d 704, 707 (Colo.1999). The court must determine whether an accused was in custody by considering the totality of the circumstances, based on whether "a reasonable person in the suspect's position would consider himself deprived of his freedom of action in a significant way at the time of questioning." People v. Breidenbach, 875 P2d 879, 885 (Colo.1994)(citing Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 LEd.2d 317 (1984)).

Here, the record reflects that defendant came to the sheriffs office voluntarily. When he arrived, the officers did not handcuff or search him. They escorted him to an interview room, where he sat nearest the unlocked door, across a table from the Department of Wildlife officers. Except for brief periods when a third officer stood inside the room near the door, defendant had clear access to the door. The officers did not tell defendant that he was under arrest, and defendant did not ask whether he was under arrest. We conclude that the officers, thus, elicited defendant's voluntary cooperation through noneoercive questioning. See People v. Trujillo, 773 P.2d 1086 (Colo.1989).

During the interview, defendant did not express any concern that he might be under arrest. At the conclusion of the interview, the officers allowed defendant to leave. A short time later, defendant voluntarily returned to deposit his gun with the sheriff's office.

The trial court found by a preponderance of the evidence that the interview was consensual and that a reasonable person in the same situation would not have considered it a custodial interrogation. We will not disturb that finding. Under these cireumstances, a reasonable person would not have considered his freedom of action limited in a significant way at the time of questioning. See People v. Breidenbach, supra.

Because defendant was not in custody, his statements were consensual, and the officers were not obligated to advise him of his rights under Miranda. Therefore, we need not consider whether defendant waived his rights under Miranda.

IL.

Defendant next contends that the trial court erred when it denied his motion for a bill of particulars. He argues that, in denying his motion, the trial court violated his constitutional rights to due process. We disagree.

A bill of particulars is intended to enable the defendant to properly prepare his defense in cases where the [information], although sufficient to advise the defendant of the charges raised against him, is nonetheless so indefinite in its statement of a particular charge that it does not afford the defendant a fair opportunity to procure witnesses and prepare for trial.

Erickson v. People, 951 P2d 919, 921 (Colo.1998)(citing People v. District Court, 198 Colo. 501, 504, 603 P.2d 127, 129 (1979)). The bill of particulars is intended to define the charged offense with more specificity, but it need not disclose in detail the evidence upon which the prosecution expects to rely. Erickson v. People, supra. The decision to grant or deny a request for a bill of particulars is vested in the sound discretion of the trial court, and its ruling will not be disturbed on review absent an abuse of that discretion. People v. Laurson, 15 P.3d 791 (Colo.App.2000); People v. Atencio, 780 P.2d 46 (Colo.App.1989). The trial court abuses its discretion in this regard only if its ruling is manifestly arbitrary, unreasonable, or unfair, People v. Mandez, 997 P.2d 1254, 1262 (Colo.App.1999).

In the complaint and information, the People charged defendant with the willfoal destruction of each of thirty-four animals found. During discovery, the People provided defendant with a list entitled "Animals Found-Master List," which identified the killed and abandoned animals that the People relied upon to define the charges against defendant. The Master List identified the species and sex of each animal found, its location and the types of wounds it suffered, how long the animal had been dead, the time the officers discovered the animal, the identity of the officers, and any shell casings or other debris found near the carcass.

Thus, as the People argue and the trial court found, the complaint and information, combined with the Master List, provided defendant with sufficient information to prepare a defense and to procure witnesses. Accordingly, the trial court did not abuse its discretion by denying defendant's motion for a bill of particulars.

IIL.

Defendant further contends that the trial court erred and violated his due process and confrontation rights by finding unavailable a codefendant who exercised his Fifth Amendment rights to avoid testifying in this case, and admitting the codefendant's out of court statements, made during a non-custodial interview with DOW officers, without defendant having an opportunity to cross examine the statements. We perceive no error.

A.

The test for a hearsay statement that would not deprive a defendant of his constitutional right to be confronted with the witnesses against him is whether "the declarant's truthfulness is so clear from the surrounding cireumstances that the test of cross-examination would be of marginal utility." People v. Farrell, 34 P.3d 401, 405 (Colo.2001) (quoting Lilly v. Virginia, 527 U.S. 116, 136, 119 S.Ct. 1887, 1900, 114 LEd.2d 117, 134 (1999)). Based on the three-part analysis set forth in People v. Newton, 966 P.2d 563 (Colo.1998), we determine whether the codefendant's earlier testimony was admissible here. See also People v. Farrell, supra.

Initially, the declarant must be unavailable. See CRE 804(a). Here, we conclude that the codefendant was unavailable to testify, having exercised his Fifth Amendment privilege when called to testify at defendant's trial.

Secondly, we must determine whether the statements sought to be admitted were against the codefendant's penal interests. In this part of the analysis, we consider whether a reasonable person in the declarant's position would not have made the statement unless he or she believed it to be true. A statement against penal interest is admissible provided that the statement is not so self-serving as to be unreliable and the declarant did not have significant motivation to curry favorable treatment. People v. Newton, supra.

Here, the record reveals that during the DOW interview, after first denying any involvement, the codefendant confessed to his own willful destruction of wildlife, as well as that of defendant and of others. Additionally, the codefendant expressed that he understood that he had done something wrong and that he would face criminal charges for his actions.

We conclude that, under the cireum-stances, a reasonable person in the codefend-ant's position would not have made these statements unless he believed them to be true. We further conclude that his statements were not so self-serving as to be unreliable and that he did not have a significant motivation to curry favor with the authorities.

Thirdly, we consider whether, in the surrounding cireumstances under which the statements were made, there existed particularized guarantees of the statements' trustworthiness, to assure that there was no material departure from the purposes underlying the right of confrontation. People v. Farrell, supra, People v. Aguirre, 839 P.2d 483 (Colo.App. 1992).

In Farrell, the supreme court sets forth several factors to consider when assessing a hearsay statement's trustworthiness:

(1) whether the statement was truly self-inculpatory; (2) whether the statement was detailed; (8) whether police officers threatened or coerced the defendant to make the statement; (4) whether the confession was offered in exchange for leniency; (5) whether the declarant was likely to have personal knowledge of the events in the statement; (6) whether the declarant made the statement shortly after the described events; (7) whether the declarant had a reason to retaliate against the defendant; and (8) whether the declarant was mentally or physically unstable at the time of the confession.

People v. Farrell, supra, 34 P.3d at 406 (citing Stevens v. People, 29 P.3d 305 (Colo.2001)).

Here, as stated above, the codefend-ant's statements were truly self-inculpatory. The assertions were made without the benefit of any promises of leniency or other considerations from the DOW officers.

In addition, the record reveals that the codefendant provided detailed information concerning the offenses in which he participated with defendant, proving that he had personal knowledge of the events he described. He described the weapons and ammunition used; the types and numbers of animals each man killed; the vehicles they drove; and the technique they used to kill the wildlife, including, who drove, who shot, and who illuminated the animals in the dark.

The record shows that the codefendant was not nervous or upset during the interview, that he had no difficulty in understanding and answering the officers' questions, and that the doorway to the interview room was never blocked, eliminating any implication that he was not free to leave.

Furthermore, near the end of the interview, the codefendant asserted that he and defendant had spoken before they voluntarily granted interviews to the DOW and that they had agreed that they would be straightforward about the events, thus revealing that the codefendant did not intend to retaliate against defendant.

B.

Defendant argues that the state did not demonstrate that the codefendant was unavailable under CRE 804(a) because the codefendant testified in a hearing in his own case. Because no transcript or testimony was presented as to codefendant's testimony in that case, the record here is not sufficient to show that any such testimony actually reveals that he waived his Fifth Amendment privilege.

Therefore, we conclude that the trial court did not err nor violate defendant's due process and confrontation rights by finding the codefendant unavailable.

IV.

Defendant also contends that the trial court erred when it instructed the jury that "knowingly" was the culpable mental state for the charged offenses of willful destruction of wildlife. We disagree.

Defendant did not raise any objections to this jury instruction at trial If a defendant lodges no objection to a trial court's jury instruction, a plain error standard should be applied in reviewing the instruction. People v. Garcia, 28 P.3d 340 (Colo.2001). Under the plain error standard, a defendant must "demonstrate not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to the defendant's conviction." Bogdanov v. People, 941 P.2d 247, 255-56 (Colo.1997).

The court's purpose in construing a statute is to give effect to the General Assembly's intent. Martin v. People, 27 P.3d 846 (Colo.2001).

The General Assembly stated its intent in enacting § 33-6-117 as follows: "The purpose and intent of this section is to protect the wildlife of this state from wanton, ruthless, or wasteful destruction or mutilation for their heads, hides, claws, teeth, antlers, horns, internal organs, or feathers or any or all of the foregoing, and the provisions of this section shall be so construed." Section 83-6-117(2), C.R.$.2001.

When defendant and others slaughtered numerous deer and antelope and left the carcasses to rot where they fell, they participated in "wasteful destruction" of those animals. The General Assembly explicitly condemned this conduct when it passed § 383-6-117.

When the language of a statute is unambiguous, we presume it expresses the intent of the General Assembly, and we will apply it as written, without resort to other interpretive rules of construction. People v. Shinaut, 940 P.2d 380 (Colo.1997). However, when the language of a statute is ambiguous, the court may turn to other rules of construction.

In pertinent part, the statutory language reads:

it is unlawful for any person to hunt or take, or to solicit another person to hunt or take, any wildlife and detach or remove, with the intent to abandon the carcass or body, only the head, hide, claws, teeth, antlers, horns, internal organs, or feathers or any or all of such parts or to kill and abandon any wildlife.

Section 38-6-117(1), C.R.S.2001 (emphasis added).

Here, in arguing that the General Assembly affized a specific intent mens rea to the offenses on which he was charged, defendant questions whether the phrase "with the intent to abandon the carcass or body" modifies the entire sentence, or whether that phrase modifies all but the last part, "or to kill and abandon any wildlife." The People assert that the "intent" phrase is a subordinate clause within the element "detach or remove ... only the head, hide, claws, teeth, antlers, horns, internal organs, or feathers" and, therefore, modifies only these elements.

We recognize that Colorado courts no longer apply the rule of statutory construction that relative and qualifying terms be construed to refer solely to the last antecedent phrase with which they are closely connected, unless contrary legislative intent appears. Section 24-214, C.R.S.2001; see People v. Myers, 714 P.2d 513 (Colo.App.1985). Nonetheless, we agree with the People, because we conclude that within the statutory context in which § 38-6-117 is found, the General Assembly intended that the phrase "or to kill and abandon any wildlife" be read to stand on its own.

"We are required, under another well known and universally recognized rule of construction, in ascertaining the intent of a legislative body, and the meaning of its enactments, to give effect to every word, phrase, clause, sentence and section, if it can be done, and we are not to presume that the legislative body used the language idly and with no intent that meaning should be given to its language." City & County of Denver v. Taylor, 88 Colo. 89, 94-95, 292 P. 594, 596 (1930); see People v. Swain, 959 P.2d 426, 433 (Colo.1998)(Bender, J., dissenting)(quoting State v. Graves, 269 S.C. 356, 287 S.E.2d 584 (1977)).

Giving proper effect to all of the words of the provisions in § 33-6-117 requires recognition that the General Assembly has established two separate offenses. With the words, "to hunt or take ... any wildlife and detach or remove, with the intent to abandon the carcass or body, only the head, hide, claws, teeth, antlers, horns, internal organs, or feathers or any or all of such parts," the General Assembly has made it an offense to hunt or kill an animal with the intent to keep only certain parts and to abandon the rest of the carcass. The second offense is found in the words, "or to kill and abandon any wildlife." This offense involves only the killing and abandoning of an animal without regard for the actor's purpose or intention.

The General Assembly did not prescribe a particular mens rea for this second offense. When a statute does not contain an explicit statement of the culpable mental state required for a conviction, its silence on the element of intent is not necessarily to be construed as an indication that no culpable mental state is required. Rather, the mental state is to be inferred from the statute. People v. Hart, 658 P.2d 857 (Colo.1983); see People v. Moore, 674 P.2d 354 (Colo.1984)(concluding that "knowingly" implied by counterfeit controlled substances statute); People v. Bridges, 620 P.2d 1 (Colo.1980)(inferring mental state "knowing ly" from "make-my-day" statute), overruled in part on other grounds by People v. Jeffers, 690 P.2d 194 (Colo.1984).

We conclude that the mental state "knowingly" is implied by the second offense set forth under § 33-6-117, namely "to kill and abandon any wildlife" The "knowingly" mental state is implied first because the first crime set forth in the statute is expressly assigned as a specific, not general, intent crime. Thus, had the General Assembly intended to make the second enumerated offense a specific intent crime, it would have done so. Secondly, the language of the see-ond offense in § 83-6-117 logically requires "knowing" that one killed and abandoned wildlife. Nothing in that language logically is tied to "specific intent," "recklessness," or "neglect." See People v. Moore, supra.

In this case, defendant was charged with the killing and abandonment of wildlife, the second offense of § 88-6-117. He was not charged with the hunting or taking of wildlife and detaching or removing portions of the carcass with the intent to abandon the carcass or body thereafter. Therefore, the trial court properly instructed the jury to apply the culpable mental state of "knowingly."

Thus, the trial court did not err in instructing the jury that the culpable mental state for the willful destruction of wildlife is "knowingly."

v.

Defendant further contends that the trial court erred in not requiring the prosecution to elect which incidents supported each count of willful destruction of wildlife and in not instructing the jury on verdict unanimity. Defendant argues that the jury may not have agreed on which specific animal he was accused of killing and abandoning with respect to each count and that the jury might have rendered guilty verdiets without a unanimous agreement as to the conduct supporting each conviction and each acquittal. We disagree.

When evidence of many acts exists, any one of which would constitute the offense charged, the People may be compelled to select the transaction on which it relies for conviction or, in the alternative, the jury should be instructed that to convict the defendant, it must have unanimous agreement either that defendant committed the same act or acts, or that defendant committed all the acts included within the time period charged. Thomas v. People, 803 P.2d 144 (Colo.1990); People v. Estorga, 200 Colo. 78, 612 P.2d 520 (1980).

Because defendant did not request that the prosecution make an election and did not submit a unanimity instruction, we must apply a plain error standard of review. See People v. Williams, 899 P.2d 306 (Colo.App.1995). Under that standard, the error must so undermine the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. People v. Kruse, 839 P.2d 1 (Colo.1992).

The Estorga case involved charges against a defendant for sexual assaults on a child over the course of several months. The People failed to select a specific act or acts upon which the jury could convict. The supreme court concluded that it was reversible error to fail to require the People to so select a specific act when there was evidence of more than one transaction and there could be some doubt as to which transaction each individual juror relied upon for conviction.

In Thomas v. People, supra, the supreme court noted that when the evidence does not present a reasonable likelihood that jurors may disagree as to which act the defendant committed, the People need not designate a particular instance upon which to argue for conviction. However, if the People do not designate an instance, the jurors should be instructed that they must unanimously agree either that the defendant committed the same act or that the defendant committed all of the acts described. Thomas v. People, supra.

Here, the acts for which the jury found defendant guilty consist of willful destruction of wildlife, and the jury was instructed that it could use the theory of complicity in considering defendant's guilt or innocence.

To be guilty of willful destruction of wildlife, a defendant must "kill or abandon any wildlife." Section 38-6-117(1). It is a class five felony to kill and abandon "big game." Section 838-6-117(1)(@), CR.S.2001. "Big game" includes deer and antelope under § 33-1-102(2), C.R.8.2001.

A complicitor "is legally accountable as a principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense." Section 18-1-603 C.R.S.2001. Complicity does not require a separate charge. People v. Thompson, 655 P.2d 416 (Colo.1982).

In this case, before the jury could find defendant guilty of the twenty-seven counts, the People had to prove beyond a reasonable doubt that defendant himself killed and abandoned an antelope or a deer for each count charged, or that, with the intent to facilitate or promote the killing and abandonment of the wildlife, he aided, abetted, advised, or encouraged another in killing and abandoning an antelope or a deer for each count charged. See § 18-1-6038.

The record shows that, here, to convict defendant, the prosecution presented the evidence so as to interconnect an individual animal with each count charged. The record reflects clearly the demonstrated interconnections among the details contained in: (1) the interview transcripts of defendant and the codefendant; (2) the map showing the locations and the numbers assigned to each animal destroyed; (3) the photographs numbering the animals according to the map locations and giving the time and place the animal was found and the identity of the officers that found the carcass; and (4) the Master List, which identified the animals that defendant was charged with destroying. Viewed as a whole, and in the light most favorable to the People, the record reveals that, as to each charge for which defendant was convicted the People presented sufficient evidence to support a conclusion by a reasonable person that defendant participated in the willful destruction of each of the individual animals charged, either as a shooter or as a complicitor. The People's approach to presenting the evidence as to each individual animal charged in each count sufficiently interlocks to support the jury's unanimous conclusions that defendant was guilty of the individual counts charged beyond a reasonable doubt.

Unlike in Estorga and Thomas, where several acts could have constituted the individual crimes, here, only one discrete act could constitute each crime. Further, the interconnected evidence relating to each animal was clear and definite. Therefore, it is unlikely that jurors could disagree or be confused as to which acts of killing defendant committed or assisted in. Under these cireumstances, there was no need for the prosecution to make an "election," or for a unanimity instruction. See Thomas v. People, supra.

Additionally, certain instructions presented to the jury persuade us that it was not necessary either to require the prosecution to elect or to extensively instruct on unanimity.

The record reflects that the jurors were instructed that proof must be presented as to each element of every charge beyond a reasonable doubt. They were instructed that each of the thirty-four verdict forms must represent a unanimous verdict of the jury, and that: "Each count charges a separate and distinct offense and the evidence and the law applicable to each count should be considered separately, uninfluenced by your decision as to any other count" (emphasis added).

The interconnected evidence, the instructions, and the fact that the jury acquitted defendant on seven counts based on strong evidentiary rationale, lead us to conclude that the jury reached unanimous verdicts on all counts.

Therefore, the trial court did not commit error that so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.

Based on the foregoing, we also reject defendant's related contention that the trial court erred and violated the constitutional prohibition against double jeopardy when it failed to require an election or, in the alternative, to instruct the jury concerning unanimity.

VI.

Defendant finally contends that the totality of the evidence was insufficient to sustain the jury's guilty verdicts and that, therefore, the convictions should be vacated. We disagree.

When the sufficiency of the evidence is challenged on appeal, our task is to determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crimes charged beyond a reasonable doubt. Kogan v. People, 756 P.2d 945, 950 (Colo.1988).

The record plainly shows that, when viewed in a light most favorable to the prosecution, the totality of the evidence amply supports the verdicts rendered by the jury that defendant was guilty of each count on which he was convicted beyond a reasonable doubt. Accordingly, this contention must fail.

The judgment is affirmed.

NIETO and STERNBERG , JJ., concur.