People v. Coit

• Decision Date: 28 November 1997
• Docket Number: No. 95CA1145,95CA1145
• Citation: 961 P.2d 524,1997 WL 742263
• Parties: 97 CJ C.A.R. 2953 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jill COIT, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 524

961 P.2d 524

97 CJ C.A.R. 2953

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jill COIT, Defendant-Appellant.

No. 95CA1145.

Colorado Court of Appeals Div. II.

Nov. 28, 1997.

Rehearing Denied Jan. 8, 1998.

Certiorari Denied Aug. 24, 1998.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John J. Krause, Assistant Attorney General, Denver, for Plaintiff-Appellee.

Joseph Saint-Veltri, Denver, Steven Janiszewski, Arvada, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, Jill Coit, appeals the judgment of conviction entered upon jury verdicts finding her guilty of first degree murder and conspiracy to commit first degree murder. We affirm.

Defendant was embroiled in a bitter civil suit against her ex-husband, who was the victim in this case. The lawsuit arose over the victim's claimed interest in a bed and breakfast in Steamboat Springs, Colorado, which defendant owned with a son by a previous marriage. Defendant apparently had given the victim a fraudulent deed of trust encumbering the property in order to avoid execution of a judgment obtained in a divorce proceeding by one of her former husbands.

After defendant filed the civil action against the victim seeking a release of the deed of trust, the victim counterclaimed for intentional infliction of emotional distress and outrageous conduct. The counterclaim alleged, among other things, that defendant had falsely asserted she had given birth to a child fathered by the victim.

The victim's murder occurred in Steamboat Springs one week before the civil trial was to begin. Approximately one month later, defendant was arrested and charged with first degree murder and conspiracy to commit murder along with a co-defendant with whom she had a personal relationship. The two cases were joined and, following the filing of both defendants' motions for change of venue, the place of trial was changed from Routt County to Grand County. A six-week trial resulted in the convictions here at issue.

I.

Defendant first contends the trial court erred in only partially granting her motion for a change of venue and in moving the trial to Grand County rather than to a different judicial district. We are not persuaded.

A motion for a change of venue is committed to the sound discretion of the trial court, and absent a clear abuse of that discretion, its decision will not be disturbed. See People v. Simmons, 183 Colo. 253, 516 P.2d 117 (1973); People v. Moore, 902 P.2d 366 (Colo.App.1994), aff'd, 925 P.2d 264 (Colo.1996); § 16-6-102(2), C.R.S.1997.

In support of her initial motion, defendant presented an expert witness who testified about a public opinion survey taken in the Fourteenth Judicial District. According to the expert, unfavorable responses in excess of 40% signified that a fair and impartial jury could not be seated within the judicial district. Over 40% of the respondents had indicated their belief that defendant was either guilty or probably guilty of murder.

The survey did not distinguish among the individual counties comprising the judicial district but was weighted by population. It thus sampled more respondents from Routt County, the most populous county in the district and the county in which the murder had occurred. Based on this evidence, the trial court granted the defendant's motion in part by transferring the trial from Routt County to Grand County.

Defendant then filed a motion for re-hearing, attaching an affidavit from her expert which contained survey results specific to Grand County. However, the responses unfavorable to defendant in this survey were less than 40%, and we perceive no abuse of discretion in the trial court's determination that defendant could receive a fair trial in Grand County.

II.

Defendant next contends the trial court erred in denying her motion to suppress evidence seized at Lowry Air Force Base (Lowry). We disagree.

A.

Because one of defendant's ex-husbands had been in the military, she was allowed to use civilian living quarters located at Lowry. A state court judge had issued a search warrant for these premises and for a vehicle also located on-base. Defendant asserts that execution of the state court's warrant was invalid because, at that time, Lowry was a military reservation under the exclusive jurisdiction of the United States. See United States Fidelity & Guaranty Co. v. District Court, 143 Colo. 434, 353 P.2d 1093 (1960). We are not persuaded.

The record surrounding the warrant was not extensive. However, it appears that the state warrant was presented to Lowry's base commander who then issued a military authorization to search the same premises. Seemingly, both military and civilian law enforcement personnel conducted the search and seized certain items admitted in the criminal trial.

As defendant alleged in the trial court:

(1) [O]n or about December 2, 1993, personnel of the United States Air Force searched the [defendant's] room and vehicle at Lowry Air Force Base pursuant to an Authority to Search and Seize; and

(2) [T]he Authority to Search and Seize was signed by [the base commander].

Defendant did not allege that probable cause was lacking either for the state warrant or for the base commander's authorization.

A military base commander is competent to issue authorizations to search and seize for persons and property situated in places under the commander's control. United States v. Banks, 539 F.2d 14 (9th Cir.), cert. denied, 429 U.S. 1024, 97 S.Ct. 644, 50 L.Ed.2d 626 (1976); Wallis v. O'Kier, 491 F.2d 1323 (10th Cir.), cert. denied, 419 U.S. 901, 95 S.Ct. 185, 42 L.Ed.2d 147 (1974) (military base commander is neutral and detached magistrate for determining probable cause and may issue search warrant for persons or property, including civilian property, situated in place under commander's control).

In State v. Long, 37 N.C.App. 662, 246 S.E.2d 846, appeal dismissed, review denied, 295 N.C. 736, 248 S.E.2d 866 (1978), a search and seizure was upheld under analogous circumstances. There, as here, a base commander issued an "Authority to Search and Seize" directing military officers to search an on-base home occupied by both military and civilian personnel. And there, as here, following execution of a search by military and civilian law enforcement officers, the evidence seized was admitted in defendant's civilian criminal prosecution. See also Eggleston v. Department of Revenue, 895 P.2d 1169 (Colo.App.1995) (upholding sobriety test administered by military officer to civilian while driving on Air Force Academy grounds).

Similarly, we reject defendant's contention that the evidence seized at Lowry should have been suppressed.

B.

We also reject defendant's contention that the evidence seized at Lowry should have been suppressed because the search and seizure violated the Posse Comitatus Act, 18 U.S.C. § 1385 (1994) (PCA).

The PCA was passed shortly after the end of the Reconstruction Era and was designed to "put an end to the use of federal troops to police state elections in the ex-Confederate states where the civil power had been reestablished." Chandler v. United States, 171 F.2d 921, 936 (1st Cir.1948), cert. denied 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081, rehearing denied, 336 U.S. 947, 69 S.Ct. 809, 93 L.Ed. 1103 (1949). See also State v. Pattioay, 78 Hawai'i 455, 896 P.2d 911 (1995).

However, even if we assume the search and seizure violated the PCA, suppression of the evidence was not required. See Hayes v. Hawes, 921 F.2d 100 (7th Cir.1990); United States v. Wolffs, 594 F.2d 77 (5th Cir.1979); United States v. Hartley, 486 F.Supp. 1348 (M.D.Fla.1980), aff'd, 678 F.2d 961 (11th Cir.1982); Taylor v. State, 645 P.2d 522 (Okla.Crim.App.1982); State v. Valdobinos, 122 Wash.2d 270, 858 P.2d 199 (1993).

Contrary to defendant's suggestion, People v. Tyler, 854 P.2d 1366 (Colo.App.1993), rev'd on other grounds, 874 P.2d 1037 (Colo.1994), does not require a different result.

In Tyler, defendant was convicted of the possession, distribution, and sale of a controlled substance. She moved to suppress evidence of a drug sale she had made in her house, located off-base, to an undercover agent of the United States Army Criminal Investigation Division. A division of this court noted that violations of the PCA do not automatically trigger an exclusionary rule, but that no justification had been shown for the military's participation in an undercover drug investigation of a civilian in her off-base activities. The panel thus concluded that the evidence should have been suppressed.

In contrast, here, other than the claimed violation of the PCA, no reasons were presented which justified exclusion of the evidence. Accordingly, the trial court did not err in denying defendant's motion to suppress.

III.

Defendant next contends the trial court erred in not suppressing her post-arrest, in-custody statement to law enforcement officers. She claims the statement was made without a proper advisement or waiver of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We disagree.

A waiver of Miranda rights must be knowingly, intelligently, and voluntarily made, and unless and until such warnings and waiver are demonstrated, any statement made by the suspect is inadmissible at trial. People v. Trujillo, 785 P.2d 1290 (Colo.1990). Whether a waiver is voluntary, knowing, and intelligent requires consideration of the totality of the circumstances surrounding the custodial interrogation. People v. Jiminez, 863 P.2d 981 (Colo.1993).

Here, defendant was interviewed shortly after her arrest and while in jail. After an evidentiary hearing in which one of the interviewing detectives testified and the taped interview was played, the trial court found that: (1) defendant had invited the interview; (2) there was no evidence of coercion by the officers; (3) although defe...