Opinion
No. 26408
Decided November 8, 1976.
Defendant was convicted of first-degree assault and appealed.
Affirmed
1. COURTS — United States Supreme Court — Miranda v. Arizona — Accused — Denial — Setting Fire — Interrogation — Negative. In prosecution for first-degree assault and first-degree arson, where accused denied he had set fire to his wife after police replied — in response to accused's inquiry as to reason for his arrest — that a witness had informed them (police) that accused had set fire to his wife, held, such denial by defendant as a volunteered response to the police reply was not inadmissible on Miranda grounds, particularly in light of fact that police had not sought to extract a statement from accused; actually, defendant was not "interrogated" in any sense and his denial does not fall within the protective provisions of Miranda v. Arizona.
2. ASSAULT AND BATTERY — First Degree — Evidence — Cumulative — Harmless Error. In criminal proceeding resulting in defendant's conviction of first-degree assault, any error in introducing evidence over accused's objections was harmless error, particularly where such evidence was merely cumulative of other overwhelming and competent evidence of defendant's guilt.
Appeal from the District Court of the City and County of Denver, Honorable Zita L. Weinshienk, Judge.
J. D. MacFarlane, Attorney General, Jean Dubofsky, Deputy, Edward G. Donovan, Solicitor General; Dale Tooley, District Attorney, Donald Eberle, Deputy, Brooke Wunnicke, Chief Appellate Deputy, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy, Dorian E. Welch, Deputy, for defendant-appellant.
The defendant was charged with first-degree assault (1971 Perm. Supp., C.R.S. 1963, 40-3-202), and first-degree arson (1971 Perm. Supp., C.R.S. 1963, 40-4-102). He was convicted by a jury of first-degree assault and sentenced to the Colorado state penitentiary. The undisputed evidence is that the defendant doused his wife with gasoline and struck a match to her clothing. As a result, she was severely burned.
Now section 18-3-202, C.R.S. 1973.
Now section 18-4-102, C.R.S. 1973.
[1] On appeal, the sole asserted error which merits discussion relates to a remark which the defendant made at the time he was arrested. When the defendant was taken into custody, he asked why he was being arrested and was told that a witness had informed the police that the defendant had set fire to his wife. The defendant then denied that he had done such a thing. While the defendant was in custody, it is clear from the record that his own initiative in asking why he was being arrested was met with a good-faith reply. To complain that a volunteered response to the police reply was inadmissible on Miranda grounds is to distort the context and purposes of the Miranda decision. There was no basis for a claim that the officers sought to extract a statement by confronting the defendant with another's accusation. The defendant was not "interrogated" in any sense. The denial, under the circumstances here, does not fall within the protective provisions of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See Larkin v. People, 177 Colo. 156, 493 P.2d 1 (1972); People v. Smith, 173 Colo. 10, 475 P.2d 627 (1970); In re Orr, 38 Ill.2d 417, 231 N.E.2d 424 (1967).
[2] As to the defendant's other claims, we are convinced that the errors, if any, were harmless and did not prejudice the rights of the defendant. The evidence introduced at trial over the defendant's objections was merely cumulative of other overwhelming and competent evidence of the defendant's guilt. Any error was harmless beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
Judgment affirmed.
MR. CHIEF JUSTICE PRINGLE, MR. JUSTICE HODGES, and MR. JUSTICE LEE concur.