A man who was convicted of the criminally negligent homicide and sexual assault of Nicole Leigh Redhorse will be retried in May after appeals court judges ruled that some of his statements to police were involuntary and should have been suppressed at trial.
The Colorado Court of Appeals reversed the original conviction from 2008, and it remanded Harold Nakai for retrial. At the time, Judge Jeffrey Wilson suppressed some of Nakai’s statements to police, but the Court of Appeals thought he should have suppressed more.
“The defendant contends the trial court erred in denying in part his motion to suppress statements he made during police interrogation,” Judge Dennis Graham wrote in the Court of Appeals’ opinion. “Defendant argues the court misinterpreted the law when it concluded that during one portion of his interrogation, his will was overborne by police coercion, and thus his statements were involuntary, but in a later portion of the same interrogation, the coercion ceased, and his statements were voluntary. We agree.”
The other two judges who heard the appeal, Judge Steve Bernard and Judge Michael H. Berger, agreed in the opinion.
Reversal of a verdict is a relatively rare action by the Court of Appeals. Since 2005, it has heard between 650 to 900 criminal cases annually, and its verdict reversal rate has ranged from 7.9 to 11.4 percent, said Rob McCallum, public information officer for the Colorado Judicial Department.
The trial is scheduled to begin May 18 and is expected to last about two weeks, according to the Office of District Attorney Dan Hostentiller with the 7th Judicial District in Montrose, which will prosecute the case.
Nakai’s original trial was held in Pueblo because Wilson believed extensive pretrial publicity could affect Nakai’s ability to get a fair trial in La Plata County.
Sixth Judicial District Attorney Todd Risberg was co-counsel for one of Nakai’s co-defendants in the original set of three trials in 2008 and had to recuse his office, Risberg said.
This retrial will take place in Durango. Hostentiller and his deputy prosecutor will be aided by Sgt. Rita Warfield of the Durango Police Department, and Wilson will preside.
Redhorse, 34, a member of the Navajo Nation and a graduate of Dartmouth College, was found dead in a motel room at Spanish Trails Inn & Suites in Durango on June 7, 2007.
Prosecutors said Nakai, who was Redhorse’s boyfriend, and the other two men convicted, Derrick Nelson Begaye and Carlton Lee Yazzie, took a drunken Redhorse to the motel on June 6, 2007, and helped her upstairs to the room.
Once there, they continued to give her alcohol while having sex with her. At some point, a blunt object, perhaps a broken hammer handle, was used to assault her vaginally, and the injuries led to her bleeding to death.
Redhorse’s blood-alcohol level at the time of her death was about 0.47 percent, almost six times the legal limit for driving.
Dr. Carol Huser, La Plata County coroner at the time, testified that the injuries were the worst of their kind that she had ever seen, but Redhorse could have survived the injuries had the suspects sought medical care.
“No man worthy of respect when his girlfriend was bleeding as badly as Nicole was would just leave her naked on the cold, hard floor at the bottom of the bed,” Wilson said at Nakai’s sentencing, “and not even cover her up – just allow her to bleed to death. And you don’t just leave her on the floor; you took care of your own personal comfort by flipping over the mattress and going to sleep while she lay at the foot of your bed and bled to death.”
The district attorney at the time, Craig Westberg, pursued charges of felony murder and four counts of sexual assault with aggravations against Nakai. He was convicted of criminally negligent homicide and sexual assault – victim helpless – serious bodily injury.
At issue in the appeal was what happened during Investigator Jeff Tipton’s second interview with Nakai, after Nakai had been in custody for 12 hours and was recovering from being extremely intoxicated.
Nakai told Tipton he wasn’t trying to get Redhorse drunk, which Tipton misunderstood, either purposefully or not, the Appeals Court said, as Nakai’s saying he was trying to get her drunk.
“The Court finds the involuntary statements were the product of three unique factors in this case,” Graham wrote. “They were Tipton’s interviewing technique, the linguistic differences between native Navajo speakers and native English speakers, and the cultural differences between Navajos and English-speaking Americans.”
Nakai’s lawyer introduced testimony from an expert on Navajo linguistics and cultural communications at the hearing to suppress the statements in the first trial, which Wilson cited as part of his ruling to exclude the statements he did.
“The defendant, as a native Navajo speaker who grew up speaking Navajo and learned English later in life,” the opinion said, “would have problems with negative yes/no questions and the pronunciation of the letter ‘t’ at the end of words. The expert also testified that culturally, Navajos do not maintain eye contact during conversations or argue with authority.”
The expert said all of these cross-cultural problems took place during the interrogation.
“In listening, I found that the first part of the interrogation that defendant was explaining what happened ...” the expert testified. “At a point – and I’d have to look at it, it seemed that (defendant), his hand gestures quit, he put his hands down, put his head down and just quit arguing.”
The Appeals Court said the law required a consideration of all the factors surrounding the interrogation, and that the final 12 minutes of the interview should be suppressed, not just the three sections that Wilson suppressed.
“The court went on to determine that additional piecemeal sections of the remaining portion of the defendant’s interrogation were admissible as voluntary because Detective Tipton’s change in interrogation tactics attenuated the coercion,” Graham wrote in the opinion about Wilson’s decision. “This was an abuse of discretion.”
The Appeals Court also said that even without the suppressed statements, there was sufficient evidence to support the jury’s conviction.
Wilson sentenced Nakai to 48 years for the aggravated sexual assault and another three years for the criminally negligent homicide. In general, prisoners must serve 75 percent of their sentence before becoming eligible for parole. But under Colorado law, the Department of Corrections can keep high-level sexual-assault offenders in prison indefinitely until they are reformed.
abutler@durangoherald.com. City Editor Shane Benjamin contributed to this story.
Court of Appeals statistics (PDF)
Appeals court opinion on Nakai (PDF)
