People v. Bruce E. Bagwell

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
April 21, 2022

2022COA44

No. 19CA2398, People v. Bagwell — Crimes — Murder in the
First Degree; Criminal Law — Affirmative Defenses — Consent;
Public Health and Environment — End-of-life Options —
Colorado End-of-life Options Act

A division of the court of appeals considers whether a

defendant who intentionally kills a consenting, terminally ill victim

may assert a defense of consent under section 18-1-505, C.R.S.

2021. This statute creates an affirmative defense under certain

circumstances in which the victim consents to the defendant’s

conduct or to the injury the defendant causes. Section 18-1-505(2),

however, states: “When conduct is charged to constitute an offense

because it causes or threatens bodily injury, consent to that

conduct or to the infliction of that injury is a defense only if the

bodily injury consented to or threatened by the conduct consented

to is not serious . . . .”
The division concludes that death is necessarily a bodily injury

that is serious. The division therefore holds that the defense of

consent is not available to a defendant who intentionally kills a

terminally ill victim who consents to her own death.
COLORADO COURT OF APPEALS 2022COA44

Court of Appeals No. 19CA2398
Jefferson County District Court No. 19CR490
Honorable Lily W. Oeffler, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Bruce E. Bagwell,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE KUHN
Pawar and Rothenberg*, JJ., concur

Announced April 21, 2022

Philip J. Weiser, Attorney General, Elizabeth Rohrbough, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Katherine Brien, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
¶1 Defendant, Bruce E. Bagwell, appeals his conviction of

intentional first degree murder. We affirm.

I. Background

¶2 Bagwell was convicted for killing his terminally ill wife of

thirty-six years. Shortly after Bagwell’s wife was diagnosed with

metastatic lung cancer, her health and quality of life began to

deteriorate. Weeks before Bagwell fatally shot her, his wife

experienced declining cognitive function, lapses in consciousness,

and difficulty walking because the cancer had spread to her brain.

She lost approximately forty pounds and needed a walker or

wheelchair to move around their apartment. Her doctor estimated

she had mere months or weeks to live.

¶3 Hospice care was ordered; a hospice nurse began weekly visits

to the Bagwells’ apartment to attend to Bagwell’s wife and bring her

medication for pain management. Bagwell’s wife, though, elected

not to take these medications or undergo the painful cancer

treatments that might have prolonged her life.

¶4 After she allegedly asked Bagwell to end her life each day for

five days straight, he shot her in the apartment they shared — twice

in her head and once in her chest.

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¶5 Shortly before Bagwell fatally shot his wife, he told her sister

he believed his wife would be dead in approximately two weeks. In

the hour after the shooting, Bagwell admitted to his wife’s father,

his wife’s sister, and the arresting officers that he shot his wife

because she asked him to do so to end her suffering. He told law

enforcement that his wife had begged him to shoot her each of the

preceding five days, and he explained that it was a “mercy killing.”

In a videotaped interrogation, Bagwell again admitted to two

detectives that he had killed his wife.

¶6 Bagwell was charged with first degree murder, a class 1 felony

under section 18-3-102(1)(a), (3), C.R.S. 2021. Before trial, he

moved to suppress his statements to the detectives and endorsed

an affirmative defense of consent under section 18-1-505, C.R.S.

2021. The trial court denied Bagwell’s motion to suppress and

precluded him from asserting his wife’s alleged consent to be killed

as a defense. The trial court reasoned that when the General

Assembly intended to create an affirmative defense to homicide, it

did so explicitly.

¶7 Bagwell was convicted and sentenced to life imprisonment. He

challenges both the consent and suppression rulings on appeal.

2
II. Affirmative Defense of Consent

¶8 Section 18-1-505 creates an affirmative defense for criminal

defendants under certain circumstances in which the victim

consents to the defendant inflicting the victim’s injury. Bagwell

contends the trial court erred by denying him this defense to the

first degree murder charge. We conclude that section 18-1-505

does not permit this defense when the victim consents to the

defendant causing the victim’s death.

A. The Affirmative Defense of Consent, First Degree Murder,
and Standard of Review

¶9 Section 18-1-505 provides that consent of the victim is an

affirmative defense when, as relevant here, two criteria are met.

§ 18-1-505(1), (2), (4). Subsection (1) makes the defense available if

“the consent negatives an element of the offense or precludes the

infliction of the harm or evil sought to be prevented by the law

defining the offense.” § 18-1-505(1); see Hotsenpiller v. Morris, 2017

COA 95, ¶ 24. But even if subsection (1) is satisfied, subsection

(2) may still preclude the defense. It provides that

[w]hen conduct is charged to constitute an
offense because it causes or threatens bodily
injury, consent to that conduct or to the
infliction of that injury is a defense only if the

3
bodily injury consented to or threatened by the
conduct consented to is not serious . . . .

§ 18-1-505(2).

¶ 10 We analyze whether consent can constitute a defense to a

crime in the context of the particular offense and the defendant’s

particular conduct. See Hotsenpiller, ¶ 22 (citing Model Penal Code

§ 2.11 note 1 on General Principles (Am. L. Inst., Official Draft and

Revised Comments 1985)). Bagwell committed first degree murder

if, “[a]fter deliberation and with the intent to cause the death of a

person other than himself, he cause[d] the death of that person.”

§ 18-3-102(1)(a).

¶ 11 Whether section 18-1-505 permits a defense of consent to first

degree murder is a question of statutory interpretation that we

review de novo. See People v. Jones, 2020 CO 45, ¶ 54. If the

defense is available, we also review de novo whether Bagwell

presented sufficient evidence to be entitled to the jury’s

consideration of it. People v. DeGreat, 2018 CO 83, ¶ 16.

¶ 12 “It is the General Assembly’s prerogative to define crimes and

prescribe punishments . . . .” People v. Trujillo, 631 P.2d 146, 148

(Colo. 1981). Our primary goal in statutory interpretation is to

4
discern the legislature’s intent and to “effectuate the purpose of the

legislative scheme[,] . . . read[ing] that scheme as a whole [and]

giving consistent, harmonious, and sensible effect to all of its

parts.” McCoy v. People, 2019 CO 44, ¶¶ 37-38.

¶ 13 We first look to the language of the statute, reading it as a

whole and giving its words and phrases their common meanings.

Jones, ¶ 54. If the plain meaning of the statute is clear, we apply it

as written. Id. “If, however, the language is ambiguous, meaning it

is silent or susceptible to more than one reasonable interpretation,

we may use extrinsic aids of construction, ‘such as the

consequences of a given construction, the end to be achieved by the

statute, and the statute’s legislative history.’” Id. at ¶ 55 (quoting

McCoy, ¶ 38).

B. Bagwell Was Not Entitled to
An Affirmative Defense of Consent

¶ 14 Bagwell contends that section 18-1-505 permits the defense of

consent to first degree murder when a terminally ill victim urges a

loved one to put an end to her painful, inevitable decline. We

disagree.

5
¶ 15 Bagwell urges that, in this situation, section 18-1-505(1)

makes the defense available because the terminally ill victim’s

consent to dying — and the loved one’s desire to fulfill that wish —

“precludes the infliction of the harm or evil sought to be prevented

by” the prohibition of murder. This prohibition, according to

Bagwell, seeks to prevent malicious killings, not mercy killings such

as the one that allegedly occurred here. In other words, Bagwell

argues that the prohibition of murder seeks to prevent unwanted as

opposed to wanted deaths.

¶ 16 Even if we assume, however, that subsection (1) makes the

defense available to Bagwell,1 we conclude that subsection

(2) precludes it. Under any reasonable interpretation of subsection

1Historically, a victim’s consent to homicide has not precluded the
harm inflicted or evil sought to be prevented by its criminal
prohibition, as this prohibition also serves wider societal interests
beyond those asserted by the victim. Model Penal Code § 2.11 note
1 on General Principles (Am. L. Inst., Official Draft and Revised
Comments 1985); see also State v. Brown, 364 A.2d 27, 28 (N.J.
Super. Ct. Law Div. 1976) (discussing how some criminal
prohibitions are designed to protect the interests of society as a
whole and why the victim’s consent is not considered in that
context because there is more at stake than the victim’s rights),
aff’d, 381 A.2d 1231 (N.J. Super. Ct. App. Div. 1977).

6
(2), the injuries causing his wife’s death are “bodily injur[ies] . . .

[that are] . . . serious.”

1. The Plain Meaning of Section 18-1-505(2)

¶ 17 “When conduct is charged to constitute an offense because it

causes or threatens bodily injury, consent to that conduct or to the

infliction of that injury is a defense only if the bodily injury

consented to or threatened by the conduct consented to is not

serious . . . .” § 18-1-505(2). Whether the injuries to which

Bagwell’s wife consented fall under this provision turns on the

General Assembly’s intent in using the phrase “bodily injury . . .

[that] is not serious.”

¶ 18 The criminal code defines “bodily injury” as “physical pain,

illness, or any impairment of physical or mental condition.”

§ 18-1-901(1), (3)(c), C.R.S. 2021. It does not, however, define

“serious” by itself or the phrase “bodily injury . . . [that] is not

serious.”2

2 The General Assembly has also defined the phrase “serious bodily
injury” to mean “bodily injury which, . . . involves a substantial risk
of death, a substantial risk of serious permanent disfigurement, a
substantial risk of protracted loss or impairment of the function of

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¶ 19 Colorado’s consent defense is largely based on the Model Penal

Code (MPC), Hotsenpiller, ¶ 22 n.5, and subsection (2) enacted

section 2.11 of the MPC verbatim. Because no Colorado appellate

cases have interpreted subsection (2), we refer to the MPC and its

commentary for guidance on the meaning of this portion of the

consent statute. See Hotsenpiller, ¶ 22 n.5.

¶ 20 The MPC explains that, for offenses that cause or threaten

bodily injury, consent will have defensive significance only if, as

relevant here, “the injury is not serious.” Model Penal Code § 2.11

Explanatory Note (Am. L. Inst., Official Draft and Revised

Comments 1985) (emphasis added). Indeed, the commentary

observes that consent is generally accepted as a defense only when

“no injury is caused or the injury is slight.” Id. at note 2 on Bodily

Injury. Notably, the drafters of the MPC explained that homicide

has universally been thought to be an offense “as to which consent

any part or organ of the body, or breaks, fractures, or burns of the
second or third degree.” § 18-1-901(1), (3)(p), C.R.S. 2021. The
parties do not argue on appeal that the phrase “bodily injury that is
serious” means the same thing as the statutorily defined term
“serious bodily injury.”

8
does not operate to prevent consummation of the crime.” Id. at note

1 on General Principles.

¶ 21 Neither the consent statute nor the MPC defines when an

injury is “serious,” so we may refer to dictionary definitions to

determine the plain and ordinary meaning of this term. See People

v. Serra, 2015 COA 130, ¶ 52. The dictionary defines “serious” to

include “having important or dangerous consequences.”

Merriam-Webster Dictionary, https://perma.cc/SXQ4-ASMV.

¶ 22 We conclude the plain meaning of section 18-1-505 reveals the

General Assembly’s intent to adopt the consent defense as it was

described by the MPC commentary. In other words, the defense is

available under subsection (2) only when the victim consents to a

minor injury. An injury that causes a victim’s death is necessarily

“serious” — and thus not minor — because it involves a permanent

and dangerous impairment of the victim’s physical condition. The

consent defense is not available, then, when a defendant

intentionally kills a victim who consents to her own death.

¶ 23 Bagwell nevertheless asserts that a victim’s injury is not

“serious” when the victim is suffering from an agonizing, life-ending

illness and urges the defendant to cause the victim’s death as an

9
act of mercy. But the plain meaning of the phrase “bodily injury

that is not serious” focuses on the degree of injury inflicted, not on

the intent of the defendant, and section 18-1-505 does not suggest

that a victim’s injury is any less “serious” merely because the

victim’s pre-existing condition is dire.

¶ 24 Here, it is undisputed that Bagwell inflicted fatal gunshot

wounds on his wife. Under section 18-1-505(2), such wounds are

“bodily injur[ies] . . . [that are] . . . serious.” Thus, even if she

consented to those injuries, as Bagwell claims, the plain meaning of

the statute precludes him from asserting the affirmative defense of

consent to his first degree murder charge.

2. The General Assembly’s Intent is Clear

¶ 25 Alternatively, Bagwell argues that section 18-1-505 is

ambiguous and that we should apply the rule of lenity to interpret it

in his favor. We are not persuaded.

¶ 26 The rule of lenity provides that, “when we cannot discern the

legislature’s intent, ‘ambiguity in the meaning of a criminal statute

must be interpreted in favor of the defendant.’” Jones, ¶ 70

(quoting People v. Summers, 208 P.3d 251, 258 (Colo. 2009)).

However, we only apply this rule as a last resort — only “if after

10
utilizing the various aids of statutory construction, the General

Assembly’s intent remains obscured.” Summers, 208 P.3d at 258

(quoting People v. Thoro Prods. Co., 70 P.3d 1188, 1198 (Colo.

2003)); Jones, ¶¶ 56-71 (invoking lenity after applying multiple

other tools of statutory construction). We also use the general rules

of statutory construction where, as here, the statutes we interpret

include citizen-initiated measures. Huber v. Colo. Mining Ass’n, 264

P.3d 884, 889 (Colo. 2011).

¶ 27 Even if we were to assume that the meaning of the consent

statute is ambiguous, though, we would still conclude that the

overall statutory scheme demonstrates that consent is not a defense

to first degree murder.

¶ 28 Colorado law provides a means for terminally ill individuals

like Bagwell’s wife to seek the end of their own lives — the Colorado

End-of-Life Options Act.3 This Act provides a path for certain

terminally ill patients to receive aid-in-dying medication from their

physicians. §§ 25-48-101 to -123, C.R.S. 2021. It carefully

3Bagwell told law enforcement that he and his wife were familiar
with her options under the Act but she didn’t want to go to a
hospital or wait to use them.

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delineates which terminally ill patients are eligible for this

medication, §§ 25-48-102(16), -103(1)(a), C.R.S. 2021, and the

procedures necessary to receive it.4

¶ 29 Critically, the Act expressly states that it does not authorize

any person — physician or not — to directly end an individual’s life

by “lethal injection, mercy killing, or euthanasia.” § 25-48-121,

C.R.S. 2021. To the contrary, the Act specifically notes that it does

not preclude criminal penalties for conduct inconsistent with the

Act. §§ 25-48-119(4), -121, C.R.S. 2021. These provisions

demonstrate the Act’s intent to create a narrow exception to the

4 The Act requires terminally ill patients not merely to consent to
receiving assistance in ending their lives, but rather to affirmatively
request such assistance. § 25-48-103(1)(c), C.R.S. 2021. Even
further, the patients must make the request to their attending
physician specifically, § 25-48-104(1), C.R.S. 2021, and their
request must be implemented via a host of statutorily prescribed
procedures, see id. (patient must make two oral requests, separated
by at least fifteen days, as well as a written request); § 25-48-103(1)
(attending physician must have diagnosed patient with terminal
illness and determine patient has mental capacity to request
assisted suicide); § 25-48-110, C.R.S. 2021 (attending physician
must verify that patient is making an informed decision);
§ 25-48-107, C.R.S. 2021 (consulting physician must confirm
attending physician’s findings); § 25-48-111, C.R.S. 2021 (attending
physician must document the patient’s requests and the physician’s
findings in patient’s medical record).

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prohibition of homicide by allowing individuals a path to receive

assistance in ending their own lives under specific circumstances.

The Act explicitly forecloses Bagwell’s interpretation that the

consent statute creates, in effect, its own “mercy killing” exception.

Bagwell’s actions directly ending another’s life were not authorized

by the Act or the consent statute, even under circumstances that

might constitute a mercy killing.

¶ 30 The Act also left in place the offense of intentionally aiding

another in committing suicide as a form of manslaughter.

§ 18-3-104(1)(b), C.R.S. 2021. In People v. Gordon, 32 P.3d 575

(Colo. App. 2001), a defendant charged with first degree murder

testified that he shot and killed his suicidal girlfriend to put her out

of her misery, as she had allegedly already shot herself once in the

head and survived. Id. at 577. A division of this court concluded

he was not entitled to a jury instruction on the lesser offense of

manslaughter (aiding suicide). The division reasoned that the

defendant did not “aid” the victim’s suicide because he did not

“merely furnish[] the victim the means to kill herself . . . [but rather]

actively engaged those means to kill her himself.” Id. at 578-79

(“This particular phraseology [of ‘aids another to commit suicide’]

13
evidences a clear and unambiguous intent to penalize only persons

who provide indirect types of aid or assistance to others who then

go forward and kill themselves.”).

¶ 31 Likewise here, Bagwell actively engaged the means leading to

his wife’s death rather than indirectly aiding her passing.5 We

conclude that if Bagwell would not even be entitled to a jury

instruction on manslaughter, a lesser offense than murder, then

the statutory scheme would also not entitle him to an affirmative

defense completely exonerating his conduct. See People v. Nelson,

2014 COA 165, ¶ 48 (“An affirmative defense admits ‘the

defendant’s commission of the elements of the charged act, but

seek[s] to justify, excuse, or mitigate the commission of the act.’”

(quoting People v. Pickering, 276 P.3d 553, 555 (Colo. 2011))).

¶ 32 Finally, like in Gordon, our interpretation of the consent

defense serves similar, important ends. It guards against murders

being disguised as mercy killings and gives effect to the Act’s

5During his interrogation, Bagwell admitted that he and his wife
had discussed helping her to commit suicide by overdose on her
prescribed medications, but he alleged that they decided not to do
so.

14
statutory safeguards surrounding a terminally ill individual’s

decision to seek assistance in dying. See Gordon, 32 P.3d at 579;

§ 25-48-110, C.R.S. 2021; see also, e.g., § 25-48-103(1)(c) (requiring

terminally ill patient to voluntarily express the wish to receive aid-

in-dying medication); § 25-48-104(2)(a), C.R.S. 2021 (patient’s

signed, written request must be witnessed by at least two

individuals); § 25-48-108, C.R.S. 2021 (requiring a physician to

verify the patient is mentally capable and making an informed

decision before prescribing aid-in-dying medication); § 18-1-505(3)

(consent is not available as a defense if the consent is induced by

force, duress, or deception, and the consenting individual must be

legally competent and not unable to consent due to a behavioral or

mental health disorder).

¶ 33 These considerations are particularly apt where, as here, the

only evidence of Bagwell’s wife’s consent was from Bagwell, his wife

was suffering cognitive decline, and her ability to freely and capably

consent was not evaluated before her death.

¶ 34 Given this statutory context, we conclude that the General

Assembly did not intend for section 18-1-505(2) to allow the defense

15
of consent to murder, and therefore, there is no basis for applying

the rule of lenity.

¶ 35 In summary, we hold that a defendant is precluded from

raising a consent defense under section 18-1-505 where, as here,

he intentionally kills a victim who consents to her own death. The

trial court did not err by denying Bagwell’s request to assert it.

III. Suppression of Bagwell’s Statements

¶ 36 Bagwell also contends that the trial court violated his

constitutional rights by denying his motion to suppress his

statements to the detectives because (1) the detectives failed to

obtain a valid waiver of his constitutional rights under Miranda v.

Arizona, 384 U.S. 436 (1966); and (2) his statements were given

involuntarily. We see no error in the trial court’s suppression

ruling.

A. Additional Facts

¶ 37 One of the detectives who interrogated Bagwell testified at the

suppression hearing. A transcript and video recording capturing

the entirety of the interrogation were also admitted. The

interrogation took place at the police station in a ten-by-ten-foot

room and lasted approximately an hour and forty minutes. Before

16
the detectives entered, Bagwell spoke spontaneously to a

supervising officer for twenty minutes and admitted that he shot his

wife.

¶ 38 Upon entering, the detectives read Bagwell his Miranda rights

and asked Bagwell if he understood those rights. Bagwell

responded, “Absolutely.” He asked for no clarification, said no

lawyer needed to be present, and then signed a written Miranda

advisement. At no point during the rest of the interrogation did

Bagwell request an attorney, ask to stop answering questions, or

seek any clarification of his rights. The detectives made no

promises or threats to Bagwell to get him to speak with them, and it

appeared to the testifying detective that Bagwell spoke freely and

voluntarily. Bagwell did most of the talking, speaking

spontaneously at times and giving lengthy answers to the

detectives’ open-ended questions.

¶ 39 Bagwell repeatedly told the detectives that he killed his wife to

end her suffering. He expressed that he was upset because he had

just shot his best friend, that he hadn’t wanted to kill her, and that

his decision tormented him.

17
¶ 40 The tone of the interview was conversational. Bagwell

cooperated with the detectives’ questioning and appeared to be

tracking what they were saying and responding appropriately.

Bagwell appeared to speak rapidly at times but said on multiple

occasions that he understood he was going to be arrested for

homicide, and, on one occasion, he said that he was thinking

rationally.

¶ 41 The testifying detective noted that Bagwell had an odor of

alcohol on his breath, but that he didn’t slur his words, sway, or

nod off during the interrogation.

¶ 42 Near the end of the interrogation, the detectives ordered a

blood draw to test Bagwell’s blood alcohol content (BAC), but

neither party sought admission of the results at the hearing.

Bagwell said that he believed his BAC was not high at that moment,

but that he was “not completely sober” when he shot his wife. At

the end of the interrogation, Bagwell lay on the floor of the

interrogation room and said he believed he was on the verge of

having a partially alcohol-induced seizure.

¶ 43 In denying Bagwell’s motion, the trial court found that

(1) Bagwell was oriented as to time and place and that any self-

18
induced intoxication did not prevent him from understanding his

waiver or the circumstances of the interrogation; (2) Bagwell’s

answers — though lengthy and spoken rapidly — were coherent

and responsive to questioning, and evidenced Bagwell’s

understanding of his circumstances; and (3) though Bagwell

appeared upset and agitated, this did not negate his ability to waive

his Miranda rights.

B. Standard of Review

¶ 44 We review suppression rulings as mixed questions of fact and

law. People v. Ferguson, 227 P.3d 510, 512 (Colo. 2010) (Miranda

waiver); Effland v. People, 240 P.3d 868, 878 (Colo. 2010)

(voluntariness of statements). We defer to the trial court’s factual

findings unless they are clearly erroneous but review the court’s

application of the relevant constitutional law to the facts of the case

de novo. Ferguson, 227 P.3d at 512-13.

¶ 45 In reviewing a trial court’s suppression order, we look solely to

the record created at the suppression hearing. People v. Thompson,

2021 CO 15, ¶ 16. Because we also have a video recording of

Bagwell’s interrogation and Miranda waiver, we can undertake this

review independently and not just from the cold record. See

19
Ferguson, 227 P.3d at 514 n.3; see also People v. Taylor, 2018 CO

35, ¶ 7 (“Where, as here, a portion of the challenged incident is

recorded, and there are no disputed facts outside of that recording

pertinent to the issue of suppression, we . . . may undertake an

independent review of the recording to determine whether the

evidence was properly suppressed in light of the controlling law.”).

¶ 46 The prosecution bears the burden of proving both the validity

of a defendant’s Miranda waiver and the voluntariness of his

statements by a preponderance of the evidence. People v. Thames,

2015 CO 18, ¶ 12; Effland, 240 P.3d at 878. We consider the

totality of the circumstances surrounding the interrogation.

Thames, ¶ 13; Effland, 240 P.3d at 877.

¶ 47 If we conclude that the trial court erred in failing to suppress

Bagwell’s statements in violation of his constitutional rights, we

must reverse the judgment of conviction unless the error was

harmless beyond a reasonable doubt. Hagos v. People, 2012 CO

63, ¶ 11.

C. Bagwell’s Miranda Waiver Was Valid

¶ 48 Bagwell contends that the detectives failed to obtain a valid

waiver of his Miranda rights. We disagree.

20
¶ 49 The United States and Colorado Constitutions guarantee

individuals the right against self-incrimination. U.S. Const.

amends. V, XIV; Colo. Const. art. II, § 18. To protect this right,

Miranda, 384 U.S. 436, holds that the prosecution may not

introduce in its case-in-chief any of a suspect’s custodial

statements resulting from interrogation unless the police preceded

their interrogation with certain advisements of the suspect’s

constitutional rights. People v. Davis, 2019 CO 84, ¶ 16; Thames,

¶ 11 (“A Miranda advisement is adequate as long as it conveys to

the suspect a clear and understandable warning that he has a right

to remain silent, anything he says can be used against him in

court, he has a right to the presence of an attorney, and, if he

cannot afford an attorney, one will be appointed for him prior to any

questioning if he so desires.”).

¶ 50 Suspects can choose to waive their rights, but this waiver is

only valid if given voluntarily,6 knowingly, and intelligently.

6 Bagwell’s only challenge to the voluntariness of his waiver is his
contention that he was intoxicated during the interrogation. But
intoxication only renders a suspect’s waiver involuntary when
governmental conduct causes the intoxication, People v. Platt, 81

21
Thames, ¶¶ 12, 14 (listing factors for evaluating the validity of a

waiver). A suspect’s waiver is knowing and intelligent “when made

with awareness of the nature of the right being abandoned and the

consequences of the decision to abandon it.” Id. at ¶ 12. This

awareness can be diminished by a suspect’s intoxication, but

intoxication does not automatically invalidate a waiver. People v.

Knedler, 2014 CO 28, ¶ 15; People v. Platt, 81 P.3d 1060, 1066

(Colo. 2004). We use a set of factors to determine whether a

suspect’s intoxication prevented him from understanding the

nature of those rights and the ramifications of waiving them:

(1) whether the defendant was oriented to his
or her surroundings and situation; (2) whether
the defendant’s answers were the responsive
product of a rational thought process;
(3) whether the defendant was able to
appreciate the seriousness of his or her
situation and the possibility of incarceration;
(4) whether the defendant had the foresight to
attempt to deceive the police to avoid
prosecution; (5) whether the defendant
expressed remorse for his or her actions; and
(6) whether the defendant expressly stated that
he or she understood his or her rights.

P.3d 1060, 1066 (Colo. 2004), and the record here contains no
evidence that Bagwell’s intoxication was anything but self-induced.

22
Knedler, ¶ 14 (citing Platt, 81 P.3d at 1066).

¶ 51 Bagwell argues that his waiver was not knowing and

intelligent because he was intoxicated, sick, and visibly upset

during the interrogation, and because he had no criminal history.

However, the record reveals that Bagwell waived his Miranda rights

out of a desire to justify shooting his wife — to explain she was

suffering and repeatedly asked him to do it. He was read a Miranda

advisement, right by right, immediately before the interrogation;

responded clearly that he had no questions; signed the written

advisement; and said on multiple occasions that he knew he would

be charged with homicide. These circumstances establish Bagwell’s

awareness of his rights and the consequences of abandoning them.

¶ 52 Bagwell’s self-induced intoxication did not sufficiently

undermine this awareness to render his waiver invalid. Bagwell’s

responses during questioning, though lengthy and at times

rambling, evidence the rational thought process of an individual

oriented to the circumstances of the situation. He repeatedly said

he understood the consequences of his actions, expressed remorse

over them, and chose to speak with the detectives anyway. Indeed,

Bagwell waived his Miranda rights approximately two hours after

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his last drink, and he told the detectives that he did not believe he

was intoxicated during the interrogation.

¶ 53 Although Bagwell did exhibit some signs of disorientation,

these signs do not demonstrate that his waiver was unknowing and

unintelligent. At most, they demonstrate Bagwell’s understandable

shock and torment over just having shot his terminally ill wife.

¶ 54 We therefore conclude the trial court did not err in ruling that

Bagwell validly waived his Miranda rights.

D. Bagwell’s Statements Were Made Voluntarily

¶ 55 Bagwell further contends that, even if he waived his Miranda

rights, the trial court erred in ruling that he gave his statements

voluntarily. We again disagree.

¶ 56 The Due Process Clauses of the United States and Colorado

Constitutions protect defendants from the admission of statements

they made involuntarily. Effland, 240 P.3d at 877. A statement is

given voluntarily if it is “the product of an essentially free and

unconstrained choice by its maker.” Id. (quoting People v. Raffaelli,

647 P.2d 230, 234 (Colo. 1982)). But a statement is given

involuntarily if “coercive governmental conduct played a significant

role in inducing the statement.” Id. The focus of the voluntariness

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analysis is thus “whether the behavior of the [government] official

was such as to overbear the defendant’s will to resist and bring

about an admission or inculpatory statement not freely self-

determined.” People v. Ramadon, 2013 CO 68, ¶ 20.

¶ 57 This coercive governmental conduct can “include[] not only

physical abuse or threats directed against a person, but also subtle

forms of psychological coercion” like the deliberate exploitation of

the suspect’s weaknesses. Effland, 240 P.3d at 877. In assessing

the coerciveness of the governmental conduct, we look at both the

defendant’s ability to resist coercive pressures and the nature of the

police conduct, using a nonexclusive list of factors:

(1) whether the defendant was in custody;

(2) whether the defendant was free to leave;

(3) whether the defendant was aware of the
situation;

(4) whether the police read Miranda rights to
the defendant;

(5) whether the defendant understood and
waived Miranda rights;

(6) whether the defendant had an opportunity
to confer with counsel or anyone else prior to
or during the interrogation;

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(7) whether the statement was made during
the interrogation or volunteered later;

(8) whether the police threatened [the]
defendant or promised anything directly or
impliedly;

(9) the method or style of the interrogation;

(10) the defendant’s mental and physical
condition just prior to the interrogation;

(11) the length of the interrogation;

(12) the location of the interrogation; and

(13) the physical conditions of the location
where the interrogation occurred.

Ramadon, ¶ 20.

¶ 58 Bagwell points to no behavior by the detectives that amounted

to coercive police conduct. Indeed, he admitted his crime even

before the detectives asked any questions, and throughout the

interrogation he gave lengthy and revealing answers to the

detectives’ open-ended questions. The detectives made no threats

or promises to induce Bagwell’s statements. We do not see how

Bagwell’s will was overborne by the detectives’ conduct.

¶ 59 We therefore conclude the trial court did not err in finding

Bagwell’s interrogation statements voluntary or in denying his

motion to suppress.

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IV. Conclusion

¶ 60 The judgment is affirmed.

JUDGE PAWAR and JUDGE ROTHENBERG concur.

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