People v. Chavez
| Citation | 190 P.3d 760 |
| Decision Date | 27 December 2007 |
| Docket Number | No. 05CA2392.,05CA2392. |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Rodolfo Eliseo CHAVEZ, Defendant-Appellant. |
| Court | Court of Appeals of Colorado |
Douglas K. Wilson, Colorado State Public Defender, Ned R. Jaeckle, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by Judge J. JONES.
Defendant, Rodolfo E. Chavez, appeals the judgment of conviction entered on jury verdicts finding him guilty of possession with intent to distribute cocaine, possession of more than one gram of cocaine, possession with intent to distribute marijuana, and possession of eight ounces or more of marijuana. We affirm.
On August 7, 2003, two Denver police officers went to an apartment building located at 2205 Larimer Street in response to a tip from an anonymous informant describing possible narcotics trafficking in and around the building. The informant described a person by the name of "Rodolfo" who lived in the apartment building, and whom the informant indicated was selling marijuana and cocaine. The officers arrived in a marked patrol car and parked down the street from the building to watch for illegal drug activity.
At about 2:00 a.m., the officers saw a car park in front of the building. A woman got out of the car and walked into the building. A short time later, she exited the building with two men, one of whom (defendant) matched the description of "Rodolfo" given by the informant. The officers saw defendant hand something to the other man in a manner consistent with a narcotics transaction. They quickly approached the group to investigate further, and while doing so, saw the other man attempt to discard a small plastic bag of cocaine. The officers arrested defendant, the other man, and the woman, and advised each of them of their rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The officers testified at trial that upon questioning the two men, defendant gave his name and said he lived in Apartment 211 in the building. The officers further testified that defendant said he and the other man had been drinking in defendant's apartment and came downstairs to meet the woman from the vehicle. According to one of the officers testifying in rebuttal, when he asked defendant for his consent to search the apartment, defendant refused.
The officers obtained a search warrant and searched Apartment 211. They found $600 in cash in the bedroom, and mail addressed to defendant. In the kitchen they found two scales, a box of plastic baggies, 13.932 grams of cocaine (in a Kool-Aid can), and approximately three pounds of marijuana. The marijuana was found in two separate locations in the kitchen: in the freezer and on a plate in a cabinet. A picture of defendant was also on the plate. The plate was next to the Kool-Aid can containing the cocaine.
Defendant testified at trial that he had moved out of the apartment six days before his arrest, was allowing the other man to live there temporarily pursuant to an unwritten sublease, had not been inside the apartment since he moved out, had not entered the apartment on the night of the arrest, and did not know there were illegal drugs in the apartment. He also maintained that when questioned by the officers at the time of his arrest he gave only his name, did not tell them he lived in Apartment 211, and when asked for his consent to search the apartment, he said nothing.
A jury found defendant guilty of (1) one count of possession with intent to distribute cocaine, in violation of section 18-18-405(1), (2)(a)(I)(A), C.R.S.2007; (2) one count of possession of more than one gram of cocaine, in violation of section 18-18-405(1), (2)(a)(I)(A), C.R.S.2007; (3) one count of possession with intent to distribute marijuana, in violation of section 18-18-406(8)(b), C.R.S.2007; and (4) one count of possession of eight ounces or more of marijuana, in violation of section 18-18-406(4)(b)(I), C.R.S.2007. The court sentenced defendant to ninety days in the county jail and two years of probation.
Defendant contends that the district court erred by allowing testimony that he refused to consent to a search of the apartment and by allowing the prosecutor to argue in closing and rebuttal closing argument that his refusal to consent was evidence that he knew illegal drugs were in the apartment. He argues he was effectively penalized for exercising a constitutional right — specifically, his Fourth Amendment right to be free from unreasonable searches — and that his right to due process under both the United States and Colorado Constitutions was thereby violated. See U.S. Const. amends. V, XIV; Colo. Const. art. II, § 25. In the alternative, he argues the evidence of his refusal to consent to a search was inadmissible because it was irrelevant or because its probative value was substantially outweighed by the danger of unfair prejudice. See CRE 402, 403. We disagree with both of defendant's arguments.
During cross-examination of defendant, the prosecutor questioned him about his encounter with the police officers outside the apartment, and the following exchange took place:
The court subsequently allowed defendant's counsel to make a record on his objections. Defendant's counsel moved for a mistrial based, in part, on the ground that the prosecutor had improperly elicited testimony from defendant that he had refused to consent to a search of the apartment. The court denied the motion, concluding that defendant's refusal to consent was inconsistent with his earlier testimony that he did not live at the apartment and did not know illegal drugs were in the apartment.
In rebuttal, the prosecutor called one of the officers who had questioned defendant outside the apartment. The jury submitted the following question for the officer: "Did you or Officer Duncan specifically ask Mr. Chavez if you could search his apartment and what was his response?" Defendant's counsel objected on the grounds the question was not proper rebuttal and had been asked and answered previously and "goes to our right not to have ... the apartment searched." The prosecutor argued the answer would contradict defendant's testimony that he had remained silent when the officer asked for his consent to search the apartment, and was therefore proper impeachment. The court overruled the objection. The officer answered:
In closing argument, the prosecutor argued that defendant refused to consent to a search of the apartment "because he knew that inside his apartment was half an ounce of cocaine." Defendant's counsel objected, and the court overruled the objection. The prosecutor went on to state, in discussing the concept of reasonable doubt, "It's also not reasonable the defendant would deny the officers consent to search the apartment if he didn't know the drugs were inside." In rebuttal closing argument, the prosecutor again alluded to defendant's refusal to consent to the search, stating, "It's intriguing that he would not allow [the police] up in the apartment when they asked him." Defendant's counsel moved for a mistrial based, in part, on these statements. The court denied the motion.
We review a trial court's evidentiary ruling for an abuse of discretion. Dunlap v. People, 173 P.3d 1054, 1097 (Colo. 2007); People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). We also review a trial court's rulings on the scope of final argument and requests for a mistrial based on such argument for an abuse of discretion. People v. Hoover, 165 P.3d 784, 795 (Colo.App.2006); People v. Richardson, 58 P.3d 1039, 1046-47 (Colo. App.2002). "A trial court abuses its discretion only when its ruling is manifestly arbitrary, unreasonable, or unfair." Stewart, 55 P.3d at 122; see also Hoover, 165 P.3d at 795 (). "A trial court necessarily abuses its discretion when it bases...
To continue reading
Request your trial
-
People v. Robles
...rhetorical questions and comments on the lack of evidence were not improper. See Lucas, 232 P.3d at 165;cf. People v. Chavez, 190 P.3d 760, 765 (Colo.App.2007) (the prosecutor's comments encouraging the jury to draw an inference of the defendant's guilt based on his decision not to testify ......
-
People v. Ujaama
...the guilty verdict.” ’ ”) (citation omitted) (quoting People v. Trujillo, 114 P.3d 27, 32 (Colo.App.2004), and People v. Chavez, 190 P.3d 760, 765 (Colo.App.2007)). Indeed, the only difference in analyzing instructional plain error prejudice and preserved constitutional error prejudice in C......
-
People v. Mollaun
... ... Thus, we will conclude that the court erred in this context only if we discern that it abused that discretion. A court abuses its discretion where its decision or action is manifestly arbitrary, unreasonable, or unfair, or based on an erroneous view of the law. People v. Chavez, 190 P.3d 760, 765, 2007 WL 4531719 (Colo.App. No. 05CA2392, Dec. 27, 2007); People v. Garcia, 169 P.3d 223, 226 (Colo.App.2007) ... CRE 606(b) expressly applies to efforts to challenge the validity of verdicts with evidence pertaining to jury deliberations. That rule ... ...
-
People v. Helms
...if its decision is manifestly arbitrary, unreasonable, or unfair, or based on a misapprehension of the law. See People v. Chavez , 190 P.3d 760, 765 (Colo. App. 2007) ; see also People v. Muniz , 190 P.3d 774, 781 (Colo. App. 2008).¶ 46 All relevant evidence is admissible unless otherwise p......