People v. Erik Jamal Newton

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
June 2, 2022

2022COA59

No. 18CA1697, Peo v Newton — Crimes — Murder in the First
Degree — Tampering with Physical Evidence; Criminal Law —
Custodial Interrogation — Miranda; Constitutional Law — Fifth
Amendment — Right to Counsel

Confronting two issues of first impression, the division

reverses the defendant’s convictions for first degree murder and

evidence tampering and remands the case for a new trial. First, the

division concludes that when an interrogating officer contradicts

written Miranda warnings and misinforms a defendant about his

right to have an attorney appointed before questioning and then

fails to resolve the defendant’s resulting confusion, any statements

during the subsequent interrogation must be suppressed. Because

the defendant’s unconstitutionally obtained statements contributed

to both convictions, the convictions must be reversed.
Second, the division determines that, under the circumstances

here, the defendant’s attempt to conceal the weapon he used to

shoot the victim was sufficient to establish that he believed an

official proceeding was about to be instituted pursuant to section

18-8-501(3), C.R.S. 2021. The prosecution may thus retry the

defendant on this charge, although it will not have the benefit of his

unconstitutionally obtained confession in doing so.
COLORADO COURT OF APPEALS 2022COA59

Court of Appeals No. 18CA1697
Jefferson County District Court No. 16CR2019
Honorable Christie A. Bachmeyer, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Erik Jamal Newton,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE GROVE
Yun and Graham*, JJ., concur

Announced June 2, 2022

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meghan M. Morris, 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, Erik Jamal Newton, appeals his convictions for

first degree murder and evidence tampering. Because the officers

who conducted Newton’s custodial interview incorrectly led him to

believe that he had no right to counsel at state expense during his

interrogation, and because the admission of the confession that he

made during that interrogation was not harmless error, we reverse

his convictions and remand the case for a new trial.

I. Background

¶2 At trial, the People presented evidence from which the jury

could find the following facts. In 2009, Newton met Onyx Lebron in

high school, and the two became close friends. Newton got to know

Lebron’s family, including his mother and her boyfriend, Zachary

Greenstreet. By 2015, however, Newton and Lebron had fallen out

and Newton no longer had any contact with Lebron or his family.

¶3 Around that time, Newton began suffering from auditory

hallucinations, during which he heard voices of Lebron,

Greenstreet, and other members of the Lebron family. He reported

this to mental health professionals and was given antipsychotic

medication, but it did not help and caused side effects, so he

stopped taking it. The voices continued to taunt and torment

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Newton, and he claimed that the only way to stop them was to

shoot one of the people whose voices he heard.

¶4 On the night of June 17, 2016, Newton went to the Lebron

home and, finding Greenstreet in the driveway, shot Greenstreet

multiple times, killing him. Then he fled the scene and buried the

gun in a nearby cemetery because he “didn’t want to get caught.”

¶5 At approximately 3 a.m., after Newton left the cemetery, an

officer investigating a report of a suspicious person spotted him

walking down the road and activated his overhead lights. Startled,

Newton jumped a fence and tried to flee. Officers caught him a

short time later, but he claimed that he had been at a party and

denied knowing anything about the Greenstreet shooting. He was

arrested for trespassing and then released from the county jail.

Shortly after his release, however, Newton returned to the cemetery

and dug up the gun. By that time, the authorities had linked him

to Greenstreet’s shooting, and, while executing a search warrant,

they arrested him and found the gun in his jacket pocket.

¶6 Once again, Newton was brought to the county jail. This time,

after the officers read him his Miranda rights, he was interrogated

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for several hours. He admitted both to killing Greenstreet and to

hiding the gun in the cemetery.

¶7 Because they are dispositive of Newton’s appeal, we address

only two of his ten contentions: (1) whether the court should have

granted his suppression motion; and (2) whether there was

sufficient evidence to support his tampering conviction.1 We agree

that the trial court erred when it denied Newton’s suppression

motion and that, as a result, he is entitled to a new trial. We also

conclude that Newton is eligible for retrial on the tampering charge

because, even though that conviction depended heavily on his

unconstitutionally obtained statements, the prosecution still

presented sufficient evidence to support it.

II. Waiver of Right to Counsel

¶8 Newton contends that statements he made during his

custodial interview should have been suppressed because the

1 We do not address Newton’s remaining contentions of error
because they are either intertwined with his unconstitutional
custodial interrogation or involve particular circumstances or
strategic decisions that may not arise in the event of a retrial. See
People v. Aldridge, 2018 COA 131, ¶ 45 (declining to address
appellate issues that are unlikely to arise in the same context on
remand).

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interrogating officers misled him about his right to have an attorney

appointed before questioning. We agree and further conclude that

the error was not harmless.

A. Standard of Review

¶9 A trial court’s ruling on a suppression motion presents a

mixed question of fact and law. People v. Webb, 2014 CO 36, ¶ 9;

People v. Krueger, 2012 COA 80, ¶ 42. We defer to the court’s

findings of fact if competent evidence in the record supports them,

and we review the court’s legal conclusions de novo. Webb, ¶ 9.

Whether a defendant understood his rights well enough to waive

them is essentially a question of law. People v. Al-Yousif, 49 P.3d

1165, 1167 (Colo. 2002).

¶ 10 We review preserved errors of constitutional dimension for

constitutional harmless error — that is, we will reverse unless the

People show that the error was harmless beyond a reasonable

doubt. Hagos v. People, 2012 CO 63, ¶ 11. An error is harmless

beyond a reasonable doubt if there is no reasonable possibility that

it contributed to the conviction. Margerum v. People, 2019 CO 100,

¶ 14.

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B. Applicable Law

¶ 11 Police are required to advise criminal suspects of their

constitutional rights before any custodial interrogation. Miranda v.

Arizona, 384 U.S. 436, 471 (1966). 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, that

anything he says can be used against him in court, that he has a

right to the presence of an attorney, and that if he cannot afford an

attorney one will be appointed for him prior to any questioning if he

so desires. Id. at 479.

¶ 12 If a defendant waives his rights and agrees to speak to police

officers, the validity of that waiver depends on whether the waiver

was (1) voluntary and (2) knowingly and intelligently made with full

awareness of the nature of the right and the consequences of its

abandonment. People v. Knedler, 2014 CO 28, ¶ 10.

¶ 13 When evaluating whether a Miranda waiver was knowing and

intelligent, we consider the totality of the circumstances. Id. at

¶ 13. Although no “talismanic incantation” of Miranda rights is

required to satisfy the strictures of that case, the appropriate

inquiry concerning the adequacy of the advisements is whether

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these rights have reasonably been conveyed to the suspect.

Sanchez v. People, 2014 CO 56, ¶ 12 (quoting Duckworth v. Eagan,

492 U.S. 195, 203 (1989)). The People bear the burden of proving

the validity of the defendant’s waiver. Knedler, ¶ 10.

C. Additional Facts

¶ 14 Officers Vernon Woodin and Elias Alberti brought Newton to

the police station for questioning shortly after arresting him. The

following facts are derived from our review of the video recording of

that discussion. Woodin gave Newton a written list of his Miranda

rights and read them out loud. He correctly told Newton that he

had a right to an attorney who could be present during questioning,

and that “[i]f you cannot afford to hire an attorney, one will be

appointed to represent you before questioning if you wish.” Newton

confirmed that he had read and understood his rights, and then he

initialed the form next to each of them. Before signing the bottom

of the form, however, he made clear that his understanding was

less than complete:

WOODIN: Ok. Having these rights in mind, do
you wish to talk with me now?

NEWTON: Um, well I do wish to talk to you
and I, I can’t afford a lawyer, and an attorney,

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when I go to court, wouldn’t he be there
anyway?

WOODIN: So, the, an attorney would be
appointed after um, the only way that you
would get an attorney now is if you were able
to pay for one.

NEWTON: Right.

WOODIN: Ok?

NEWTON: Right I can’t, uh, can’t.

WOODIN: Ok.

NEWTON: So . . .

ALBERTI: So the que-, the question is not
really whether you can afford [an] attorney or
not.

NEWTON: Mm-hmmm.

ALBERTI: Ok? The question is, with these
rights in mind do you wish to talk to us now?

NEWTON: Oh, yeah, so it’s fine.

ALBERTI: Ok.

WOODIN: Ok, so if you do, if you want to talk
with me, and you agree to talk with me
without your attorney, I’m gonna have you
sign your name right there ok?

NEWTON: Ok.

¶ 15 After hearing from Woodin that the “only way” to have an

attorney present for questioning would be to hire one, and after

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telling the officers that he could not afford an attorney, Newton then

signed his name to the Miranda waiver.

¶ 16 Alberti, apparently realizing his partner’s misstatement, then

attempted to fix it by “clarify[ing]” that while Newton had a right to

representation during the interrogation, if he “want[ed] to talk to

[the officers] without your attorney present, then we can do that

now.” But when Newton asked once again about whether he would

have to pay for an attorney during the interview, Alberti sidestepped

the question:

NEWTON: And I’d have to pay for that one,
right?

ALBERTI: Well what I’m trying to say is, is that
you have a right to have an attorney present,
so if you’re saying I want to talk to you, but I
only want to talk to you with my attorney
present, then that’s your right.

NEWTON: Oh, (inaudible).

ALBERTI: If you’re saying, I’ll talk to ya’ and I
don’t really care whether my attorney’s present
or not, that’s the second part. Does that make
sense?

NEWTON: Yes, yeah, I just don’t have an
attorney.

ALBERTI: Ok. It’s not whether you have one
or not, you’re, I think you’re confused.

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NEWTON: Oh.

ALBERTI: It’s not whether you have, we know
you don’t have one, because there’s not one
sitting here.

NEWTON: (Laughs) Yeah, yeah.

ALBERTI: The right is that you, you can have
an attorney sitting here if you want one. So
my question is to you, just so we’re on the
same page, are you willing to talk to us
without an attorney present or would you like
to have an attorney present before you answer
any questions?

NEWTON: Um, (long pause) no I think it’s fine.

ALBERTI: Ok. Do you understand the two
differences that we’re talking about, though,
right?

NEWTON: Yeah.

ALBERTI: Ok.

¶ 17 Once this discussion about Newton’s Miranda rights

concluded, Newton confessed in extensive detail that he

intentionally killed Greenstreet after hearing voices telling him to do

so, and that he buried the gun because he did not want to get

caught with the murder weapon.

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D. Analysis

¶ 18 Newton moved to suppress his statements at the police

station, arguing that he did not knowingly and voluntarily waive his

Miranda rights because the officers misled him about his right to

counsel. We agree that Newton’s waiver was invalid.

¶ 19 Our supreme court has held that an advisement is adequate if

a suspect’s Miranda rights are “reasonably conveyed to the suspect”

and he understands them as safeguards for his constitutional

privilege. Sanchez, ¶ 11. One of those rights, guaranteed by the

Fifth Amendment, ensures that a suspect is entitled to “deal with

the police only through counsel,” id. at ¶ 14 (quoting McNeil v.

Wisconsin, 501 U.S. 171, 178 (1991)). To effectuate that right,

police must warn a suspect “not only that he has the right to

consult with an attorney, but also that if he is indigent a lawyer will

be appointed to represent him.” Id. at ¶ 15 (quoting Miranda, 384

U.S. at 473). Thus,

[a]s long as the suspect is made to understand
that regardless of his present ability to retain
counsel, he will be entitled to have an attorney
appointed to intercede on his behalf with the
police, and he voluntarily waives that right, his
Fifth Amendment right to counsel has been
adequately safeguarded.

10
Id. at ¶ 16 (emphasis added).

¶ 20 In Sanchez, our supreme court considered the adequacy of an

advisement in which the interviewing officer did not expressly tell

the defendant that he was entitled to an attorney “free of charge.”

Id. at ¶ 4. The court affirmed the defendant’s conviction, noting

that in response to the defendant’s inquiry whether “a lawyer was

going to want money . . . the officer expressly informed him that if

he did not have the means for an attorney, one would be appointed

for him.” Id. at ¶ 20. This advisement was adequate, the court

held, because “[u]ltimate financial liability for the cost of

consultation with and the presence of appointed counsel during

custodial interrogation was never a consideration of consequence

for the Court in Miranda.” Id. at ¶ 16.

¶ 21 No such clarity was provided to Newton. To the contrary,

Woodin affirmatively misinformed Newton about his Miranda rights,

telling him that “the only way” he could have an attorney present

for questioning would be if he was able “to pay for one.” This

inexplicably contradicted the written advisement that Woodin had

just read aloud, and in any event, it did not answer Newton’s

question, which was about representation during future court

11
appearances. It was only after this incorrect statement that Newton

signed the Miranda waiver.

¶ 22 Even though the written Miranda warning on the page Newton

signed — “if you cannot afford to hire a lawyer, one will be

appointed to represent you before questioning, if you wish” — was

correct, it was obvious that Newton remained unsure of his rights.

In the discussion that ensued, with Alberti taking the lead, Newton

again sought to clarify whether he would need to pay for a lawyer to

obtain representation prior to questioning. Alberti dodged the

question, and instead — despite acknowledging that Newton was

“confused” — only reiterated that Newton had a right to an

attorney. At the suppression hearing, Newton testified that with

respect to the Miranda advisement, he “went with what [the officers]

were saying.” Notably, despite Newton’s obvious confusion, at no

point during the conversation did either officer correct Woodin’s

affirmative misrepresentation.

¶ 23 To be sure, no talismanic recitation of a defendant’s Miranda

rights is necessary. Sanchez, ¶ 12. But any Miranda advisement

that either contains an affirmative misrepresentation of a

defendant’s rights or misleads a defendant about a material fact

12
regarding those rights, such as a defendant’s right to an attorney

regardless of his ability to pay, is inherently insufficient. And

because Newton’s agreement to speak to the police without counsel

present was based at least partly on the interviewing officers’

incorrect and unrebutted explanation of his constitutional right, we

cannot conclude that his waiver was knowing and intelligent.

Therefore, the trial court erred by denying Newton’s motion to

suppress his statements made at the police station.

¶ 24 We further conclude that the error was not harmless with

respect to either of Newton’s convictions. The prosecution relied on

Newton’s confession throughout each phase of the trial:

 In her opening statement, the prosecutor described how

Newton told the officers exactly what happened the night

he shot Greenstreet, and how he ran away and hid the

gun “because he didn’t want to get caught.”

 During the prosecution’s case-in-chief, Woodin described

how Newton’s statements supported the theory that the

shooting was premeditated and deliberate. Among other

things, Woodin discussed the souring of the relationship

between Newton and the Lebron family and explained

13
how Newton, armed with a gun, traveled for hours on two

trains and a bus to get to Greenstreet’s home, and then

fled after the shooting because he did not want to get in

trouble.

 During closing argument, the prosecutor used direct

quotes from Newton’s confession to explain the steps that

Newton took to intentionally kill Greenstreet, saying that

“every single step shows deliberation.”

¶ 25 Given the importance of Newton’s unconstitutionally obtained

statements to the prosecution’s case, we cannot conclude that their

admission was harmless beyond a reasonable doubt. Newton’s

theory of defense was that he had not formed the culpable mental

state for first degree murder. But his confession provided

significant support for the prosecution’s argument that he had, in

fact, intended to kill Greenstreet. In addition, Newton’s confession

provided clear evidence that he tampered with evidence by burying

the gun, as he described in his own words why he chose to do so.

Because the prosecution relied on Newton’s confession so heavily

throughout the trial, and because some elements of Newton’s

confession provided a unique insight into the motivations for

14
Newton’s conduct, we cannot say that this error was harmless

beyond a reasonable doubt. Accordingly, we reverse both

convictions.

III. Sufficiency of the Evidence

¶ 26 Newton contends that the prosecution presented insufficient

evidence to support his conviction on the tampering charge. We

disagree.

A. Standard of Review and Applicable Law

¶ 27 We review de novo sufficiency of the evidence claims. McCoy v.

People, 2019 CO 44, ¶ 27. In determining whether sufficient

evidence exists to sustain a defendant’s conviction, we consider

whether the evidence, both direct and circumstantial, when viewed

as a whole and in the light most favorable to the verdict, is

substantial and sufficient to support a conclusion by a reasonable

mind that the defendant is guilty of the charge beyond a reasonable

doubt. Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). We give

the prosecution the benefit of all reasonable inferences that might

fairly be drawn from the evidence. People v. Perez, 2016 CO 12,

¶ 25.

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B. Analysis

¶ 28 “A person commits tampering with physical evidence if,

believing that an official proceeding is pending or about to be

instituted and acting without legal right or authority, he . . .

conceals . . . physical evidence with intent to impair its . . .

availability in the pending or prospective official proceeding.” § 18-

8-610(1)(a), C.R.S. 2021. An “official proceeding” is “a proceeding

heard before any legislative, judicial, administrative, or other

government agency, or official authorized to hear evidence under

oath, . . . or other person taking testimony or depositions in any

such proceedings.” § 18-8-501(3), C.R.S. 2021; see also § 18-8-

601, C.R.S. 2021 (definitions in section 18-8-501(3) apply to section

18-8-610). Newton contends that the prosecution failed to

introduce evidence that an official proceeding was “about to be

instituted” and that he concealed the gun with intent to impair its

availability in a prospective official proceeding.

1. Official Proceeding About to Be Instituted

¶ 29 First, we conclude that the evidence was sufficient for the jury

to conclude that Newton knew an official proceeding was about to

be instituted. Although Colorado courts have not addressed this

16
precise issue, they have concluded that a defendant’s attempt to

conceal an item is sufficient to establish the defendant’s belief that

an official proceeding was about to be instituted. See Frayer v.

People, 684 P.2d 927, 929 (Colo. 1984); People v. Atencio, 140 P.3d

73, 77 (Colo. App. 2005).

¶ 30 In Atencio, a division of this court specifically left open

circumstances, like those here, where a defendant makes evidence

“unavailable to law enforcement at a point in time when he or she

does not know with certainty of an imminent arrest that will result

in discovery of the” evidence. 140 P.3d at 77. However, “it is

evident from the language of the tampering statute that the General

Assembly intended to criminalize behavior that interferes with an

official proceeding even if that behavior occurs before the

proceeding is instituted.” Id.; see also Frayer, 684 P.2d at 929

(sufficient evidence that defendant believed an official proceeding

was about to be instituted); People v. Candelaria, 107 P.3d 1080,

1087 (Colo. App. 2004) (same), rev’d in part on other grounds, 148

P.3d 178 (Colo. 2006).

¶ 31 Thus, we conclude that there is no requirement under section

18-8-610 that acts sufficient to support a tampering charge must

17
occur subsequently to either a defendant’s contact with police or his

discovery that he is about to be arrested. Rather “the offense of

tampering with physical evidence depends, to an important degree,

on the defendant’s conduct and intent.” Frayer, 684 P.2d at 929.

And a defendant could believe, without certainty, that an official

proceeding is about to be instituted even if the police have not

contacted him.

¶ 32 Newton’s own video confession established that he buried the

gun because he “didn’t want to get caught.”2 This statement made

clear that Newton knew that his killing of Greenstreet could trigger

an official proceeding. The jury could have reasonably concluded,

based on the evidence, that such a proceeding was “about to be

instituted.” See § 18-8-610(1); Candelaria, 107 P.3d at 1087

(holding that when the murder weapon was never found, the

evidence was sufficient for the jury to conclude that the defendant

had tampered with the evidence).

2 Although we have already held that Newton’s confession would be
inadmissible in the event of a retrial, when assessing the sufficiency
of the evidence, “we must consider all the evidence admitted at trial,
including . . . erroneously admitted evidence.” People v. Hard, 2014
COA 132, ¶ 39.

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2. Intent to Impair the Gun’s Availability in a Prospective Official
Proceeding

¶ 33 Second, we agree that the evidence was sufficient for the jury

to conclude that Newton concealed the gun with the intent to impair

its availability in a prospective proceeding. Newton argues that

because he retrieved the gun from its hiding spot and had it in his

possession when he was arrested, he could not have intended to

impair its availability in a future proceeding. But the statute

plainly requires the jury to assess Newton’s intent at the moment

he buried the gun, and not whether his objectives later changed.

As we have already noted, Newton buried the gun because he

“didn’t want to get caught.” This direct admission was an

expression of his intent at the moment he buried the gun. And

acting on that intent worked, at least initially. Despite being

arrested in the vicinity of the Lebron house shortly after shooting

Greenstreet, Newton did not have the gun on him and was not

charged at that time with Greenstreet’s murder.

¶ 34 Taken as a whole and in the light most favorable to the

prosecution, these facts support a reasonable inference that, at the

time Newton buried the gun, he believed that an official proceeding

19
was about to be instituted and he intended to impair the gun’s

availability in that proceeding. If there is evidence from which one

may reasonably infer that the elements of the crime have been

established, the evidence is substantial and sufficient. People v.

Torres, 224 P.3d 268, 277 (Colo. App. 2009). Therefore, we

conclude that the evidence was sufficient for a jury to conclude that

Newton was guilty of the tampering charge.

IV. Conclusion

¶ 35 The judgment is reversed, and the case is remanded for a new

trial on both the first degree murder and evidence tampering

charges with directions to exclude evidence of Newton’s confession

to the police.

JUDGE YUN and JUDGE GRAHAM concur.

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