Peo v. Freeman

21CA1721 Peo v Freeman 12-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1721
Boulder County District Court No. 18CR1395
Honorable Norma A. Sierra, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Bryan Freeman,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE JOHNSON
Fox and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 5, 2024

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General, and Assistant Solicitor General, Denver, Colorado, for Plaintiff-
Appellee

James West, Alternate Defense Counsel, Longmont, Colorado, for Defendant-
Appellant
1 Defendant, Michael Bryan Freeman (Freeman), appeals his

2 judgment of conviction entered on jury verdicts finding him guilty of

3 aggravated robbery, possession of a controlled substance,

4 obstructing a peace officer, tampering with physical evidence, and

5 theft.1

6 Freeman contends that because the suppression hearing

7 transcript was destroyed in a fire and the district court found that

8 the record cannot be reconstructed, his right to a direct appeal is

9 violated.2 Specifically, he argues that the lack of a transcript

10 prevents him from challenging (1) the violation of his Sixth

11 Amendment rights to his counsel of choice and conflict-free counsel

12 and (2) the district court’s ruling that the statements he made to

13 police during his interrogation did not violate his Miranda

14 rights. He also contends that the lack of the suppression hearing

15 transcript forecloses any ineffective assistance of counsel claims.

1 Freeman was also convicted of possession with intent to distribute

a controlled substance, but that conviction was later dismissed by
the district attorney.
2 The district court clerk confirmed that the suppression transcript

had been destroyed.
1
1 Most of Freeman’s arguments are conclusory and normally we

2 do not review underdeveloped arguments. But we acknowledge that

3 destruction of the transcript was not Freeman’s fault. We conclude,

4 however, that because Freeman did not fully comply with C.A.R. 10,

5 he invited the error when the court found that the record could not

6 be reconstructed. As to his two contentions, we discern no error

7 based on the existing record; therefore, we affirm his judgment of

8 conviction. Finally, we decline to address whether any ineffective

9 assistance of counsel claim is futile because the argument is raised

10 prematurely.

11 I. Background

12 In June 2018, the Longmont Department of Public Safety

13 worked with a confidential informant (CI) to organize a drug buy

14 from Freeman. The CI was given $290 to purchase one ounce of

15 methamphetamine from Freeman. As the CI approached Freeman’s

16 car, Freeman motioned for the CI to get into the passenger seat.

17 Within seconds of sitting in the passenger seat, the CI heard a gun

18 cock behind him and noticed co-defendant Adam Lucero (Lucero) in

19 the back seat.

2
1 The CI owed Lucero money and was unaware that Freeman

2 and Lucero planned to rob the CI. Lucero had two guns pointed at

3 the CI’s head and asked “[w]here is my money[?]” The CI handed

4 the money to Freeman, left his phone in the car as instructed by

5 Freeman, exited the vehicle, and spoke with officers. Freeman and

6 Lucero were arrested.

7 Following a jury trial in August 2019, Freeman was convicted

8 as charged. After Freeman unsuccessfully collaterally attacked

9 some of his prior convictions, the district court adjudicated him a

10 habitual criminal in March 2021. Freeman requested a

11 proportionality review and in September 2021, the district court

12 determined that Freeman’s controlling sentence of sixty-four years

13 in the custody of the Department of Corrections was not grossly

14 disproportionate.

15 Freeman timely filed this direct appeal in November 2021.

16 When attempting to designate the record, Freeman discovered that

17 the March 15, 2019, suppression hearing transcript and recording

18 had been destroyed. After a motions division ordered a limited

19 remand, Freeman filed a motion in the district court in November

3
1 2023 requesting that the court conclude the record could not be

2 reconstructed. The district court granted his request.

3 Upon certification of the supplemental records from the

4 district court, Freeman requested a new trial because the record

5 could not be reconstructed. A motions division of this court denied

6 his request but directed that such a request could be briefed to the

7 merits division.

8 II. Reconstructed Record

9 In his opening brief, Freeman again requested a new trial

10 based on the missing March 15 hearing transcript. We deny his

11 request because, to the extent the district court erred in finding the

12 record could not be reconstructed, Freeman invited the error.

13 A. Standard of Review and Applicable Law

14 “The doctrine of invited error prevents a party from

15 complaining on appeal of an error that he or she has invited or

16 injected into the case; the party must abide the consequences of his

17 or her acts.” People v. Rediger, 2018 CO 32, ¶ 34. “The doctrine of

18 invited error generally precludes appellate review of alleged errors

19 that were invited by a party’s affirmative conduct.” People v.

20 Becker, 2014 COA 36, ¶ 20.
4
1 “It is the appellant’s job to ensure that the reviewing court has

2 an adequate record.” Knoll v. Allstate Fire & Cas. Ins., 216 P.3d

3 615, 617 (Colo. App. 2009). “[W]hen a complete transcript is

4 unavailable, the appellant must obtain an adequate substitute.” Id.

5 Indeed, the appellant “remains obligated to take all steps necessary

6 under the appellate rules to obtain the necessary record for review.”

7 Halliburton v. Pub. Serv. Co., 804 P.2d 213, 217 (Colo. App. 1990).

8 C.A.R. 10 lays out the process a party must undertake to

9 reconstruct a missing record. If a transcript of the evidence of a

10 hearing is unavailable, “the parties may file a statement of the

11 evidence or proceedings in lieu of designating transcripts with the

12 trial court, and the trial court must certify a statement of the

13 evidence or proceedings in lieu of a transcript.” C.A.R. 10(e). If the

14 parties disagree as to what transpired on the date of the missing

15 transcript, “the difference must be submitted to and settled by the

16 trial court.” C.A.R. 10(g)(1).

17 B. Analysis

18 Initially, Freeman complied with C.A.R. 10 and requested that

19 briefing in this court be stayed so that he could seek to reconstruct

5
1 the record in the district court. This court granted his request on

2 July 28, 2022. That same order gave both parties access to an

3 unredacted, sealed March 21, 2019, minute order the district court

4 had issued detailing what occurred and its rulings from the March

5 15 hearing.

6 In the district court, Freeman produced his own draft

7 (unexecuted) affidavit detailing the events of March 15. He also

8 gathered statements from his counsel at the time of the March 15

9 hearing, Eric Zale (Zale), and the district attorney. The original trial

10 judge issued an order indicating that he had nothing additional to

11 add independent of the March 21, 2019, minute order detailing the

12 court’s rulings from March 15.

13 The March 21 minute order stated that Zale sought to

14 withdraw as counsel and the court held a conflict hearing under

15 People v. Bergerud, 223 P.3d 686 (Colo. 2010). Once the courtroom

16 was cleared, Zale indicated that Freeman intended to file a

17 grievance against him. Freeman indicated that he had not yet filed

18 one but would do so if needed. The court discussed with Freeman

19 that if Zale withdrew, Freeman’s speedy trial deadline would be

6
1 tolled while Freeman secured new counsel. The court denied the

2 motion to withdraw, finding that because the grievance had not

3 been filed, there was no irreconcilable conflict between Freeman

4 and Zale. The rest of the March 21 minute order (which had

5 already been public) detailed the court’s denial of Freeman’s motion

6 to suppress certain statements he made to officers.

7 Despite gathering accounts of the March 15 hearing from all

8 participants, Freeman did not ask the district court to certify any

9 part of his draft affidavit or the other attorneys’ statements to be

10 part of the settled record. Instead, Freeman argued that because

11 Zale did not remember that a Bergerud hearing was held and the

12 district attorney only remembered general details of the suppression

13 hearing, any additional proceedings to reconstruct the record would

14 be futile. As a result, Freeman asked for, and the court entered, an

15 order that the record could not be reconstructed.

16 Contrary to what was required by C.A.R. 10(e), Freeman did

17 not ask the district court to certify the undisputed evidence in lieu

18 of a transcript. Much of the participants’ recollections are not in

19 dispute. For example, Freeman, Zale, and the district court agree

7
1 that Zale requested to withdraw as counsel, though Zale does not

2 remember the exact date. Freeman, Zale, and the district court

3 agreed that the purported conflict was, in part, related to Freeman’s

4 intent to file a grievance against Zale (although Zale recollected that

5 he thought Freeman had already filed a complaint). Freeman, Zale,

6 and the district court agreed that Freeman was concerned with

7 waiving his speedy trial rights if Zale withdrew as counsel.

8 True, there are disputes between Freeman and his counsel as

9 to certain details. For example, Freeman recollects that part of his

10 dissatisfaction with Zale was that Zale missed appointments and

11 had not provided him with discovery. Zale disagreed, saying he had

12 not missed any appointments and that they had “gone over the

13 discovery at length.” But when asking the district court to settle

14 the record, Freeman said that, even if his counsel had more

15 specifics about the Bergerud hearing, “the Attorney General and the

16 Court of Appeals will not accept the defense’s version of the events.”

17 Contrary to Freeman’s view, it is not for the Attorney General

18 or this court to accept a certain version of events when settling the

19 record. Instead, it is the district court’s responsibility to make

8
1 finding of fact, resolve conflicting evidence, and make credibility

2 determinations. See People v. Mendoza-Balderama, 981 P.2d 150,

3 157 (Colo. 1999) (“It is the function of the trial court and not the

4 reviewing court to weigh the evidence and determine the credibility

5 of the witnesses.”). And Freeman did not request that the district

6 court resolve those differences, as required by C.A.R. 10(g)(1). We

7 acknowledge that by the time Freeman asked the district court to

8 settle the record, the trial judge was not the same judicial officer

9 who presided over the suppression hearing. But it is still the

10 appellant’s responsibility to have the district court resolve the

11 differences in the record. This is especially true when, as here, the

12 trial judge who presided over the March 15 hearing issued a

13 detailed minute order.

14 We further acknowledge that Freeman attempted to

15 reconstruct the record from the March 15 hearing, but he is not

16 entitled to automatic reversal of his judgment because he failed to

17 follow all requirements of C.A.R. 10. See People v. Conley, 804 P.2d

18 240, 243 (Colo. App. 1990). And despite our conclusion that

19 Freeman invited the error, the existing record is adequate for us to

9
1 address his substantive contentions. Indeed, even when a record

2 does not include a transcript, we do not presume prejudice

3 requiring automatic reversal if the record is sufficient for intelligent

4 review of the defendant’s contentions. See People v. Whittiker, 181

5 P.3d 264, 270 (Colo. App. 2006).

6 III. Rights to Counsel of Choice and Conflict-Free Counsel

7 Freeman contends that because there is no reconstructed

8 March 15 transcript, we lack a sufficient record to determine

9 whether his Sixth Amendment rights to counsel of choice and

10 conflict-free counsel were violated. We disagree.

11 A. Standard of Review and Applicable Law

12 We review a district court’s denial of a counsel’s motion to

13 withdraw for an abuse of discretion. Ronquillo v. People, 2017 CO

14 99, ¶ 13. A district court abuses its discretion when its decision is

15 “manifestly arbitrary, unreasonable, or unfair” or when it

16 misapplies the law. Freedom Colo. Info., Inc. v. El Paso Cnty.

17 Sheriff’s Dep’t, 196 P.3d 892, 899 (Colo. 2008).

18 The Sixth Amendment includes a defendant’s right to hire and

19 fire retained counsel of choice without a showing of good cause.

20 Ronquillo, ¶ 27. But the right to fire retained counsel is qualified;
10
1 “[w]hile a defendant may fire retained counsel for any reason,

2 circumstances may prohibit him from proceeding the way he

3 desires.” Id. at ¶ 29.

4 The Sixth Amendment right to counsel also includes “the right

5 to conflict-free counsel.” People v. Shari, 204 P.3d 453, 460 (Colo.

6 2009). But the “mere ‘possibility of a conflict is insufficient’ to

7 establish a Sixth Amendment violation.’” Id. at 457 (quoting Cuyler

8 v. Sullivan, 446 U.S. 335, 350 (1980)). A defendant must

9 demonstrate that “an actual conflict of interest adversely affected

10 his lawyer’s performance” to prevail under a Sixth Amendment

11 claim. Cuyler, 446 U.S. at 350.

12 B. Analysis

13 We conclude for three reasons that Freeman’s Sixth

14 Amendment rights to counsel of choice and conflict-free counsel

15 were not violated.

16 First, the record supports that Freeman’s counsel requested to

17 withdraw as his counsel. Therefore, the court did not deny

18 Freeman’s request to have his counsel withdraw. In other words,

19 because Freeman had privately retained counsel, he had the right

11
1 to fire his counsel but he chose not to and proceeded with Zale

2 representing him at the suppression hearing.3

3 Freeman’s affidavit, Zale’s statement, and the court’s minute

4 order all confirm that Zale requested to withdraw as counsel.

5 Freeman stated that once he had shown Zale a copy of the draft

6 grievance complaint, Zale addressed the court by saying, “We have

7 a problem. I would like to withdraw as Mr. Freeman’s counsel.”

8 Zale said in his statement, “I did move to withdraw based upon

9 what I believed to be a conflict of interest based upon the

10 grievance.” And the court’s sealed minute order stated, “Defense

11 counsel moved to withdraw, arguing that there was a conflict.

12 Defense counsel provided that the Defendant may have filed a

13 grievance against him.”4

14 Second, Freeman chose not to fire Zale at the time of the

15 suppression hearing because the record supports that Freeman did

3 Although a defendant may generally fire privately retained

counsel, “[t]he right to counsel of choice is not absolute and must
sometimes give way to the demands of fairness and efficiency.”
Ronquillo v. People, 2017 CO 99, ¶ 35.
4 Shortly after the March 15 hearing, Freeman fired Zale. Freeman

was briefly represented by alternate defense counsel and then
retained private counsel who represented him at trial.
12
1 not want to waive his right to a speedy trial. The court said in its

2 minute order that it “provided to the Defendant that the

3 consequence of appointing new counsel [was] that speedy trial

4 would suspend because the trial would likely be continued, as [the]

5 trial [was] currently set . . . [for] April 15, 2019.” Zale said, “I have

6 no idea why Mr. Freeman continued to refuse to waive speedy and

7 to have me represent him at this hearing. He was in custody at the

8 time and would have qualified for court appointed counsel.” And

9 Freeman confirmed that the judge advised him that he would have

10 to waive his right to a speedy trial if Freeman fired Zale, and that

11 Freeman “wouldn’t take a continuance” because his right to a

12 “speedy trial was very important to [him].”

13 Indeed, if Freeman had removed retained counsel, the speedy

14 trial period would have been extended. See § 18-1-405(6)(f), C.R.S.

15 2024 (“In computing the time within which a defendant is brought

16 to trial as provided in subsection (1) of this section, the following

17 periods of time are excluded: . . . The period of any delay caused at

18 the instance of the defendant.”). Therefore, the court properly

19 advised Freeman of the consequences of firing counsel. See

13
1 Ronquillo, ¶ 29 ( “[B]efore a trial court grants a request to release

2 retained counsel from a case, it must ensure that the defendant

3 understands and accepts the consequences of doing so.”); see also

4 People v. McKimmy, 2014 CO 76, ¶ 8, n.3 (the defendant agreed to

5 toll his right to a speedy trial in light of obtaining new counsel);

6 People v. Scales, 763 P.2d 1045, 1048 (Colo. 1988) (“Continuances

7 made necessary because of the substitution of counsel may,

8 depending upon the particular circumstances of the case, be

9 chargeable to the defendant.”).

10 Finally, we discern no error in the court’s finding that the

11 proposed grievance did not create an irreconcilable conflict between

12 Freeman and his counsel. In People v. Martinez, 722 P.2d 445, 446

13 (Colo. App. 1986), a division of this court held that the “mere filing

14 of a grievance because of disagreement as to trial tactics does not,

15 without more, demonstrate that the relationship has deteriorated to

16 a point at which counsel is unable to give effective aid to the client.”

17 In that case, defense counsel moved to withdraw after defendant

18 filed a grievance against counsel with the Colorado Supreme Court.

19 Id. The division affirmed the denial of the motion to withdraw, as

14
1 the district court reasoned that the defendant had made “no claim

2 that the attorney’s conduct of the trial was in any way deficient”

3 and the record supported that defendant’s counsel “competently

4 represented the defendant’s interest.” Id.; see also United States v.

5 Williamson, 859 F.3d 843, 858 (10th Cir 2017) (“[A] defendant’s

6 mere filing of a disciplinary inquiry or criminal complaint against

7 his attorney is not enough to establish an actual conflict of

8 interest.”).

9 Here, Freeman said that he had not filed the complaint against

10 Zale. And regardless, the court noted that Freeman may have

11 instead been upset about the prosecutor filing habitual criminal

12 counts against him. The court specifically made findings that

13 during the Bergerud hearing, Freeman’s “demeanor was calm” and

14 that he “showed a degree of equivocation or pensiveness on Mr.

15 Zale’s representation.” Id. Even if Freeman were to dispute the

16 description of his demeanor and his behavior regarding Zale’s

17 representation, we are bound by the court’s credibility assessments,

18 as it had the opportunity to observe Freeman during the hearing

19 and its findings are not “so clearly erroneous as not to find support

15
1 in the record.” People v. Turner, 2022 CO 50, ¶ 19 (citation

2 omitted).

3 Accordingly, we conclude that Freeman’s Sixth Amendment

4 rights were not violated.

5 IV. Miranda Waiver

6 Freeman contends that the lack of a transcript prevents him

7 from arguing that his Miranda waiver was not voluntary, knowing,

8 and intelligent and, therefore, the statements he made to the police

9 should have been suppressed. We disagree and conclude that the

10 record is sufficient to affirm the district court’s finding that

11 Freeman’s waiver of his Miranda rights was voluntary, knowing,

12 and intelligent.

13 A. Additional Facts

14 In June 2018, Freeman was arrested and brought to the

15 Longmont Police Station. Freeman’s interrogation was audio

16 recorded. Before being questioned, Freeman was read his Miranda

17 rights. Freeman verbally acknowledged he understood his rights

18 and waived them to talk with detectives. The recorded interview

19 lasted approximately twelve minutes.

16
1 Freeman filed a motion to suppress all his statements he made

2 to police, arguing that he did not voluntarily, knowingly, or

3 intelligently waive his Miranda rights.

4 At the suppression hearing, three law enforcement officers —

5 two officers and one detective — testified regarding the Miranda

6 issue.

7 In the March 21 minute order, the court held that Freeman

8 voluntarily, knowingly, and intelligently waived his Miranda rights

9 and that the statements he made were not coerced. Specifically, the

10 court stated that (1) Freeman was read his Miranda rights and

11 agreed to talk; (2) the interviewing officer’s and Freeman’s tones

12 were conversational; (3) there were no physical threats or nonverbal

13 communication; and (4) Freeman answered some questions but

14 declined to answer others.5

15 B. Standard of Review and Applicable Law

16 We review a district court’s denial of a motion to suppress as a

17 mixed question of law and fact. People v. Ramadon, 2013 CO 68,

5 Freeman’s motion to suppress, the March 15 minute order, and

his briefing on appeal do not challenge any specific statements
outside of the those he made during the audio recording.
17
1 ¶ 21. We defer to the district court’s factual findings and uphold

2 them if they are supported by the record. Id. But we review the

3 legal effect of the facts de novo. Id.

4 Where, as here, the interrogation is audio-recorded and there

5 are no disputed facts outside the recording pertinent to a

6 suppression ruling, we are in the same position as the trial court in

7 deciding the voluntariness issue. Id. In such instances, the

8 question on appeal is one of law and is reviewed de novo. People v.

9 Springsted, 2016 COA 188, ¶ 16; see also People v. Madrid, 179

10 P.3d 1010, 1014 (Colo. 2008).

11 Under the Due Process Clauses of the United States and

12 Colorado Constitutions, a defendant’s involuntary statements are

13 not admissible evidence. See U.S. Const. amends. V, XIV; Colo.

14 Const. art. II, § 25; Mincey v. Arizona, 437 U.S. 385, 387 (1978);

15 People v. Raffaelli, 647 P.2d 230, 234 (Colo. 1982).

16 Therefore, before being questioned, a defendant must be read

17 his Miranda rights. But a defendant “may waive effectuation of

18 these rights, provided the waiver is made voluntarily, knowingly and

19 intelligently.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). When

18
1 a defendant seeks to suppress a statement on the ground that it

2 was made in violation of his Miranda rights, the prosecution must

3 prove by a preponderance of the evidence that the statement was

4 made after a voluntary, knowing, and intelligent waiver of his

5 Miranda rights. People v. Mejia-Mendoza, 965 P.2d 777, 780 (Colo.

6 1998). Courts will review the totality of the circumstances to

7 determine if a person’s Miranda rights have been violated. People v.

8 Kaiser, 32 P.3d 480, 484 (Colo. 2001).

9 “Statements are voluntary if they are the product of an

10 individual’s free and rational choice.” People v. Mendoza-Rodriguez,

11 790 P.2d 810, 816 (Colo. 1990); see also Ramadon, ¶ 19. The

12 statement must not be the product of “any direct or implied

13 promises,” or result from the government’s exertion of improper

14 influences. People v. Medina, 25 P.3d 1216, 1222 (Colo. 2001).

15 Coercive physical or psychological governmental conduct can

16 render an otherwise voluntary statement involuntary under certain

17 circumstances. Cardman v. People, 2019 CO 73, ¶ 21.

18 “The focus of the voluntariness inquiry is whether, under the

19 totality of the circumstances, the behavior of the official was

19
1 coercive so as to overbear the defendant’s will in making the

2 statements.” People v. Zadran, 2013 CO 69M, ¶ 10. This analysis

3 requires a two-step inquiry: (1) whether the police conduct was

4 coercive; and (2) if so, whether the coercive conduct played a

5 significant role in inducing the statement. Id. at ¶ 10; see also

6 People v. Coke, 2020 CO 28, ¶ 19. We consider a nonexclusive list

7 of factors:

8 (1) whether the defendant was in custody;

9 (2) whether the defendant was free to leave;

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

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

12 (5) whether the defendant understood and waived his

13 Miranda rights;

14 (6) whether the defendant had an opportunity to confer with

15 counsel or anyone else prior to or during the

16 interrogation;

17 (7) whether the statement was made during the

18 interrogation or volunteered later;

20
1 (8) whether the police threatened [the] defendant or

2 promised anything directly or impliedly;

3 (9) the method [or style] of the interrogation;

4 (10) the defendant’s mental and physical condition just prior

5 to the interrogation;

6 (11) the length of the interrogation;

7 (12) the location of the interrogation; and

8 (13) the physical conditions of the location where the

9 interrogation occurred.

10 Cardman, ¶ 23; see also Zadran, ¶ 11. A court will determine how

11 much weight to give each factor depending on the circumstances of

12 that particular case. Cardman, ¶ 27.

13 For a waiver to be knowing and intelligent, the defendant must

14 possess “an awareness of both the nature of the right and the

15 consequences of the decision to waive it.” Mejia-Mendoza, 965 P.2d

16 at 780.

17 C. Analysis

18

21
1 We conclude that Freeman voluntarily waived his Miranda

2 rights.

3 Six of the Cardman factors appear to weigh in favor of a

4 finding of involuntariness. Freeman was in custody at the time of

5 the interview (factor 1); he was not free to leave because he was in

6 custody (factor 2); he was presumably not allowed to confer with

7 counsel given the short amount of time between when the incident

8 occurred and when Freeman arrived at the police station (factor 6);

9 he made incriminating statements during the interview (factor 7);

10 and the interview took place in a small room of a police station6

11 (factors 12 and 13).

12 Yet seven factors appear to weigh in favor of the court’s finding

13 of voluntariness. Freeman was arrested shortly after the robbery

14 and upon questioning he immediately began discussing the events

15 that transpired leading up to the robbery (factor 3); Freeman was

16 read his Miranda rights (factor 4); Freeman stated he understood

17 those rights and then agreed to talk with detectives (factor 5);

6 The parties’ briefs do not discuss the size of this room and there is

no video recording of the interview. We will assume it was a small
room for purposes of our analysis.
22
1 detectives did not threaten or promise anything directly or impliedly

2 (factor 8); detectives were respectful and the interview was

3 conducted in a conversational manner (factor 9); although Freeman

4 exhibited some stress at times, his mental and physical condition

5 appeared normal before the interview (factor 10); and the interview

6 lasted approximately than twelve minutes (factor 11).

7 In determining whether a defendant’s statements are

8 involuntary, our analysis is not “quantitative,” based on how many

9 factors fall on either side of the tally. But after considering all of

10 the factors together, our independent review leads us to conclude

11 that Freeman voluntarily waived his Miranda rights.

12 The audio recording reveals no undue influence from the

13 detectives that would amount to overbearing Freeman’s free will

14 and choice. Freeman fails to point to evidence in the record that

15 indicates he was coerced into speaking with detectives. He merely

16 provides conclusory arguments that his statements were not

17 voluntary. For example, there is no evidence that detectives even

18 suggested to Freeman that he might gain leniency if he was honest.

19 See People v. Perez-Rodriguez, 2017 COA 77, ¶ 51-52 (Police

23
1 “suggested that judges or prosecutors may be more lenient on a

2 defendant who they perceive as being honest and who ‘took

3 responsibility’ for his actions. These statements, however, do not

4 promise any sort of leniency or guarantee any special treatment.”).

5 Next, we conclude that the district court did not err when it

6 found that Freeman knowingly and intelligently waived his Miranda

7 rights.

8 At the beginning of the police interview, detectives read

9 Freeman his Miranda rights and asked whether he understood his

10 rights and wished to continue speaking with detectives. Freeman

11 answered affirmatively to both. Freeman was cognizant at the time

12 that he was waiving his rights. There was no language barrier

13 between Freeman and the detectives. The interview contains no

14 indication that the detectives misled Freeman, that he did not

15 understand his rights, or that the detective read the Miranda rights

16 in a confusing manner.

17 Nonetheless, Freeman contends that his answers are barely

18 audible on the recording, which, according to him, supports that he

19 did not knowingly and intelligently waive his rights. But in

24
1 listening to the recording, we could hear the detective read him his

2 Miranda rights and Freeman affirmatively waived them and agreed

3 to speak. Although there are times that the audio is difficult to

4 hear, there is no indication that Freeman recanted his waiver or at

5 any time asked for counsel.

6 Thus, we conclude that the court’s denial of Freeman’s motion

7 to suppress is supported by the record.

8 V. Ineffective Assistance of Counsel

9 Finally, we decline to review whether any ineffective assistance

10 of counsel claim is futile due to the missing transcript.

11 Generally, a criminal defendant cannot “raise a claim of

12 ineffective assistance of counsel on direct appeal because such a

13 claim ordinarily requires the development of a factual record that

14 will not have been developed in the trial court.” A.R. v. D.R., 2020

15 CO 10, ¶ 62; see also Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003)

16 (“[D]efendants have regularly been discouraged from attempting to

17 litigate their counsels’ effectiveness on direct appeal.”); People v.

18 Vondra, 240 P.3d 493, 495 (Colo. App. 2010) (“[I]neffective

19 assistance of counsel claims involve factual issues that should be

25
1 resolved by the trial court and are thus not properly raised for the

2 first time on direct appeal.”);

3 “Such procedure promotes judicial economy because the

4 conviction may be overturned in the course of the direct appeal.”

5 People v. Thomas, 867 P.2d 880, 886 (Colo. 1994). Although the

6 record may support that the defendant received ineffective

7 assistance of counsel, it may still “require explanations by trial

8 counsel about alleged incompetent acts or omissions, or expert

9 testimony as to the requisite standard of care in the applicable legal

10 community,” and a “trial court is positioned to hear and evaluate

11 evidence as necessary.” Id.

12 Because Freeman raises his arguments pertaining to potential

13 ineffective assistance of counsel on direct appeal, we decline to

14 address them as premature.

15 VI. Conclusion

16 The judgment of conviction is affirmed.

17 JUDGE FOX and JUDGE SCHOCK concur.

26