Peltz v. People

• Decision Date: 02 December 1986
• Docket Number: 85SC171,Nos. 84SC390,s. 84SC390
• Citation: 728 P.2d 1271
• Parties: Robin Roy PELTZ, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. Robin PAPPADIAKIS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 1271

728 P.2d 1271

Robin Roy PELTZ, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

Robin PAPPADIAKIS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

Nos. 84SC390, 85SC171.

Supreme Court of Colorado En Banc.

Dec. 2, 1986.

Mary G. Allen, Denver, for Peltz.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Virginia Byrnes Horton, Asst. Atty. Gen., Denver, for respondent.

David F. Vela, Public Defender, Frances Smylie Brown, Deputy Public Defender, Denver, for Pappadiakis.

ERICKSON, Justice.

Defendants Robin Roy Peltz, Robin Pappadiakis, and David Dean Lindholm were jointly charged in an information with burglary, theft over $10,000, conspiracy to commit burglary, and conspiracy to commit theft over $10,000. Sections 18-4-203, 18-4-401, 18-2-201, 8B C.R.S. (1986). David Dean Lindholm was granted a severance. Peltz and Pappadiakis were jointly tried. Peltz was convicted on all four counts and Pappadiakis was convicted of theft over $10,000 and conspiracy to commit theft over $10,000. The convictions were affirmed by the court of appeals in separate decisions. People v. Pappadiakis, 705 P.2d 983 (Colo.App.1985); People v. Peltz, 697 P.2d 766 (Colo.App.1984). We granted certiorari in Peltz to consider whether the court of appeals correctly affirmed the trial court's denial of Peltz's timely and repeated motions for severance and suppression of evidence seized pursuant to a search warrant. We granted certiorari to review a similar severance issue in Pappadiakis. The cases are consolidated in this opinion because they arise from the same incident and involve closely related factual and legal issues. We affirm the court of appeals in both cases.

I.

Diversified Marine Products (Diversified Marine), a retail shop specializing in scuba equipment and accessories, was burglarized during the late evening or early morning hours of October 6 or 7, 1981. Greenwood Village police officers were summoned by the owner of the store, Randolph Williams (Williams). The police investigation revealed that the burglars pried the back door from its hinges to gain entry. Further investigation disclosed that great care was taken in removing the glass tops from display cases and aquariums so as not to break them. The glass tops were discovered on the shop's floor, beneath the counters. Williams, after reviewing his inventory, concluded that over two hundred items were missing. The stolen property included Williams's personal television set/am-fm radio, numerous underwater flashlights, river rafts, outboard motors, wetsuits, underwater watches for both men and women, and miscellaneous other scuba equipment. The stolen property was itemized by Williams, and the detailed list was given to the police for use in their investigation.

On May 28, 1981, seven months after the Diversified Marine burglary, Detective Joe Dempsey of the Arapahoe County Sheriff's Department was contacted by James Vest. ¹ Vest informed Detective Dempsey that the perpetrators of the burglary were Peltz, Pappadiakis, and David Dean Lindholm. Vest also gave Detective Dempsey a regulator that he acquired from Peltz which was stolen from Diversified Marine.

Detective Dempsey contacted Detective Laird Thornton of the Greenwood Village Police Department, and related the information regarding the burglary. Detectives Dempsey and Thornton met with Vest to discuss the burglary. Vest, an instructor-certified diver, stated that Peltz had approached him and asked how Vest liked Peltz's new scuba equipment. When Vest asked where Peltz acquired the equipment, Peltz related the details of the burglary. Peltz, Pappadiakis, and Lindholm parked their truck and van at the rear of Diversified Marine, pried open the back door, and transferred a large quantity of diving equipment, inflatable boats, and marine engines from the store to their truck. Peltz was primarily responsible for moving the items from the store to the vehicles, and Pappadiakis and Lindholm acted as "lookouts." Peltz mentioned that he was afraid of breaking the glass aquarium and counter tops, and that he removed them and placed them on the floor. Vest was also told that the stolen property was moved to the apartment that Peltz and Vest temporarily shared. The property was later divided between Peltz, Pappadiakis, and Lindholm, and the majority of the property was moved to a shed in a mini-storage warehouse. Vest believed that the property was still stored in the shed because the property was being put to the defendants' personal use.

Vest also told the detectives that he had seen defendant Pappadiakis wearing an underwater watch obtained from the burglary, and some of the women's diving equipment was in her possession. Vest said that he had recently seen a river raft, diving watch and outboard motors in Lindholm's possession. He also saw the television/am-fm unit, which was taken from Diversified Marine and was the personal property of Roger Williams, in the trunk of Peltz's 1978 Camaro.

Four days after his conversation with Vest, Detective Laird Thornton prepared affidavits setting forth the facts as described above. Search warrants were issued for Peltz's car and the shed at the mini-storage unit. Randolph Williams's television set was found in the trunk of Peltz's car. The search of the shed yielded over 180 separate items of diving equipment.

II.

Peltz moved to suppress the evidence seized pursuant to the execution of the search warrant, and the trial court denied the motion to suppress. The court of appeals affirmed the trial court's ruling. Peltz argues that the evidence should have been suppressed because Vest's reliability as an informant was not established by the affidavit as required by the Aguilar-Spinelli ² rule. We affirm.

The court of appeals held that Peltz's reliance on the "rather rigid Aguilar-Spinelli test which previously applied to tips from anonymous or confidential informants" was misplaced. People v. Peltz, 697 P.2d at 769 (Colo.App.1984). While the court of appeals decision predated our decision in People v. Pannebaker, 714 P.2d 904 (Colo.1986), the lower court's holding is correct. In Pannebaker, we followed the "totality of the circumstances" test enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) for the purpose of determining probable cause under the fourth amendment to the United States Constitution and article II, section 7 of the Colorado Constitution. People v. Pannebaker, 714 P.2d at 907.

Under the totality of the circumstances test, "the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. The analysis "places particular importance on the value of corroboration of the details of an informant's tip by independent police work." Id. See also Illinois v. Gates, 462 U.S. at 241-246, 103 S.Ct. at 2333-2336.

The court of appeals correctly noted the ways in which the investigative efforts of the police were corroborated by the information supplied by Vest. People v. Peltz, 697 P.2d at 770. Vest obtained information from an alleged participant in the burglary which corroborated the date and time of the crime, as well as the method of breaking and entering. Vest described the items taken, stated that he had seen several of those items in the possession of Peltz, Pappadiakis, and Lindholm, and actually gave one of the stolen regulators to Detective Thornton. Vest informed Detective Thornton of Peltz's concern about breaking the glass aquarium and counter tops, and how the glass tops had been placed gently on the floor so as not to break them. This unusual fact corroborated the investigating officers' observations at the scene of the burglary. Finally, Vest and the law enforcement authorities with whom he was in contact were identified, and the details of their conversations were set forth with great particularity. We agree with the court of appeals that, taken together, "these facts are more than sufficient to support the requisite probable cause." People v. Peltz, 697 P.2d at 770. ³

III.

Both defendants contend that the court of appeals erred in affirming the trial court's denial of their motions for severance. We affirm.

A defendant is entitled to a severance as a matter of right if (1) there is material evidence admissible against one but not all of the parties, and (2) admission of that evidence is prejudicial to the party against whom the evidence is not admissible. § 16-7-101, 8A C.R.S. (1986); Crim.P. 14; People v. Gonzales, 198 Colo. 450, 601 P.2d 1366 (1979). Otherwise, a motion for severance is addressed to the sound discretion of the trial court, and will be affirmed absent a showing of an abuse of discretion and actual prejudice to the moving party. People v. Horne, 619 P.2d 53 (Colo.1980).

A. Peltz's Motion for Severance

Peltz contends that he was entitled to a severance, either as a matter of right or in the discretion of the trial court for two reasons. First, Vest was the prosecution's main witness, and counsel for Pappadiakis attempted to impeach Vest by inquiring into his Douglas County arson conviction. See n. 1 at 1274. Vest received a deferred judgment upon his plea of guilty to being an accessory after the fact, and Peltz was found to be guilty of arson as a principal by a Douglas County jury. The questioning was intended to show that Peltz and Vest were at one time "partners in crime," and to impeach Vest's credibility as a witness. Vest testified that the deferred judgment arose out of the fact that he was "covering up the crime for Mr. Peltz." ⁴ Peltz also claims that he was entitled to a severance because Vest testified that he was in protective custody. Counsel for Pappadiakis was permitted to ask Vest if he was in...