People v. Copenhaver, 99CA0905.

• Decision Date: 14 September 2000
• Docket Number: No. 99CA0905.,99CA0905.
• Citation: 21 P.3d 413
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jeffrey COPENHAVER, Defendant-Appellant.
• Court: Colorado Court of Appeals

21 P.3d 413

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jeffrey COPENHAVER, Defendant-Appellant.

No. 99CA0905.

Colorado Court of Appeals, Div. V.

September 14, 2000.

Rehearing Denied October 19, 2000.

Certiorari Denied March 19, 2001.

Ken Salazar, Attorney General, John J. Krause, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Thomas D. Silverman, P.C., Thomas D. Silverman, Julia Dawn Epps, Glenwood Springs, Colorado, for Defendant-Appellant.

Opinion by Judge VOGT.

Defendant, Jeffrey Copenhaver, appeals a judgment of conviction entered upon a jury verdict finding him guilty of possession of a schedule II controlled substance (cocaine), possession of drug paraphernalia, driving under the influence, and driving under restraint. We affirm.

Defendant was identified by a witness as the driver of a truck involved in an accident. Police officers contacted defendant in the parking lot of his apartment complex. They subsequently entered his apartment and, while inside, observed a bindle of cocaine on the kitchen counter.

After charges were filed against him, defendant reached a plea agreement with the prosecution, but the trial court refused to accept it. Defendant then filed motions to suppress statements and evidence taken by the police. Following hearings on both motions, the trial court denied defendant's motion to suppress evidence, but did not rule on his motion to suppress statements. A jury trial was held, and defendant was convicted as charged.

I.

Defendant contends that the trial court erred in denying his motion to suppress evidence seized during a warrantless search of his apartment. We do not agree.

Searches and seizures of private property must be reasonable. A warrantless search is presumptively unreasonable. The burden is on the prosecution to establish that the search falls within some clearly recognized exception to the warrant requirement. People v. Kluhsman, 980 P.2d 529 (Colo. 1999).

One such exception is the existence of exigent circumstances necessitating immediate police action. If the prosecution establishes both probable cause to support the search and exigent circumstances justifying the unauthorized entry, evidence discovered during a warrantless search is admissible. People v. Kluhsman, supra.

Exigent circumstances exist when there is a colorable claim of emergency threatening the life or safety of another. To invoke the emergency doctrine, there must be an immediate crisis and the probability that assistance will be helpful. People v. Kluhsman, supra; People v. Harper, 902 P.2d 842 (Colo.1995).

It is the function of the trial court, not the appellate court, to weigh the evidence and determine the credibility of witnesses. In reviewing a trial court's ruling on a motion to suppress, we give deference to that court's findings of fact. We may not substitute our judgment for that of the trial court unless its findings are clearly erroneous or not supported by the record. People v. Mendoza-Balderama, 981 P.2d 150 (Colo.1999).

Here, in denying defendant's motion to suppress evidence, the trial court made the following findings of fact:

Mr. Copenhaver was contacted, the vehicle was found, there was blood in the vehicle, Mr. Copenhaver said he wasn't the driver, there was a driver's license or there was a document in the front seat which the officer could see that showed a driver's license pertaining to someone else, I think. And I think the vehicle was not Mr. Copenhaver's vehicle; it traced to someone else.

So based upon that, the officers knocked on a door and entered to see if there was someone injured in that apartment. And in the course of looking for that injured person, the substance — whatever it was — was on the counter in the kitchen.

The court then concluded that the search of the apartment and the seizure of the cocaine were not unreasonable.

The testimony of the officers at the motions hearings supports the trial court's findings. The officers testified that they did not know how many people were in the truck at the time of the accident. Defendant had denied that he was the driver. Upon looking inside the truck, the officers observed blood on the dash and on the steering wheel, as well as a driver's license belonging to another person. Defendant also had blood on him; however, the officers were concerned that there could be another injured party. They entered defendant's apartment building looking for an injured person, saw blood on the slightly open door to his apartment, called out, "Is anybody hurt?" and then followed a trail of blood through the apartment. They saw an open cocaine bindle on the kitchen counter.

On appeal, defendant does not assert that the bindle was not in plain view. Rather, he contends that the officers' stated concerns about an injured person were pretextual because they had to have known that there was only one person in the truck. Defendant points to evidence introduced at trial that supports that contention. However, based on the evidence that was before the trial court when it ruled on the suppression motion, we cannot conclude that its ruling was either clearly erroneous or unsupported by the record. Therefore, that ruling will not be disturbed on appeal. See People v. Mendoza-Balderama, supra.

II.

Defendant next contends that he was denied due process by the trial court's failure to rule on his motion to suppress statements he made to police officers. We disagree.

Trial courts are to make timely rulings on motions to suppress and are to make findings that show the basis for their rulings. See Barela v. People, 826 P.2d 1249 (Colo. 1992); People v. McIntyre, 789 P.2d 1108 (Colo.1990). However, failure to do so may be harmless if there is no showing that the defendant's substantial rights were affected. See Crim. P. 52(a); see also Barela v. People, supra (rescheduling of trial necessitated by untimely suppression ruling did not amount to due process violation where defendant did not establish that rescheduling would hamper his defense, deprive him of witnesses or evidence, or otherwise prejudice him in any significant way).

In this case, the trial court announced at the conclusion of the hearing on defendant's motion that it would defer ruling until the next scheduled hearing. Although the issue of whether the court had ruled was brought up at various hearings prior to trial, the court does not appear to have ruled at any time on whether the statements would be admitted. At a pretrial conference at which the court inquired regarding outstanding motions, counsel for both sides stated that they thought the court had ruled the statements admissible; however, no such ruling is in the record.

On appeal, defendant does not identify any statements that were introduced at trial that should have been suppressed; nor does he explain why a ruling admitting the statements would have been error. Rather, he contends without elaboration that the lack of a ruling "prejudiced his ability to effectively proceed with his case by preventing the defense an opportunity to resolve any constitutional admissibility of prosecutorial evidence that could have a direct effect on trial strategy and by frustrating the prosecution and defense time to give adequate consideration to the feasibility of pursuing a plea agreement prior to trial."

In our view, this contention is insufficient, without more, to establish that his right to due process or any other substantial rights were violated because the court did not rule on his motion. Further, the contention is belied by his failure to ask for a ruling on the motion when the court indicated uncertainty about whether it had ruled.

Because defendant has not established that he was prejudiced by the lack of a ruling, the court's failure to rule was harmless error. See Crim. P. 52(a); Barela v. People, supra.

III.

We also disagree with defendant's contention that the trial court abused its discretion in rejecting his plea agreement.

Whether to accept a plea agreement is a matter committed to the discretion of the trial court, which is to exercise independent judgment in deciding whether to accept or reject the agreement. Section 16-7-302(3), C.R.S.2000; Crim. P. 11(f)(5). The court's reasons for rejecting such an agreement must be set forth on the record. People v. Jasper, 984 P.2d 1185 (Colo.App.1999) (cert. granted, March 27, 2000). Among the factors which a trial court may properly consider are the defendant's previous criminal history and any pre-plea report or recommendation. See People v. McGhee, 677 P.2d 419 (Colo.App.1983).

When presented with the proposed disposition for a deferred judgment and sentence on the cocaine charge, the trial court stated that it would not accept the disposition. After recounting defendant's criminal history, which consisted of various traffic offenses and a previous deferred judgment and sentence in connection with a theft charge, the court cited additional factors that led it to reject the plea agreement: (1) defendant had stated that he was pleading guilty because his attorney had advised him to do so; (2) his statement of the offense was "minimalistic;" (3) he tried to cover up his offense by stating that he had consumed alcohol after he stopped driving; and (4) the urine specimen he provided was diluted. The court later noted that it routinely rejected guilty pleas in which the defendant stated he was pleading guilty to get probation but did not commit the offense.

Contrary to defendant's contention, the factors considered by the trial court were appropriate. Defendant distinguishes this case from People v. McGhee, supra, on the basis that the probation officer in McGhee had not approved the plea agreement. However, while the probation officer here did endorse the agreement, he expressed reservations about it, stating:

This officer endorses the proposed plea agreement with some reservations. This officer asked the defendant wh

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