People v. Drake

Decision Date16 January 1990
Docket NumberNo. 86SA205,86SA205
Citation785 P.2d 1257
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, Cross-Appellee, v. James A. DRAKE, Defendant-Appellee, Cross-Appellant.
CourtColorado Supreme Court

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Robert M. Petrusak, Asst. Atty. Gen., Denver, for plaintiff-appellant/cross-appellee.

David F. Vela, Colorado State Public Defender, and Michael J. Heher, Deputy State Public Defender, Denver, for defendant-appellee/cross-appellant.

Justice VOLLACK delivered the Opinion of the Court.

Defendant James Alvey Drake appeals his conviction on the charge of accessory to the crime of murder, § 18-8-105, 8 C.R.S. (1978). 1 The defendant contends that the trial court committed reversible error when it denied his motions to suppress statements he made to Grand Junction police officials. The defendant's suppression motions alleged that his statements were the product of his illegal arrest and the unlawful warrantless search of his motel room by Grand Junction police officers. The defendant further argues that the trial court erred in denying his motion to impose sanctions on the prosecution for violating the court's sequestration order. The defendant also argues that we must vacate his enhanced sentence under the habitual criminal counts of the amended information because his prior convictions supporting the enhanced sentence were obtained unconstitutionally and as a result of ineffective assistance of counsel. Finally, the defendant contends that the trial court's imposition of the enhanced sentence violated his right to due process of law, and that the sentence itself constitutes cruel and unusual punishment. We affirm.

I.

At 5:25 a.m. on the morning of December 16, 1982, the Grand Junction Police Department received a telephone call on the 911 emergency line from a man who said that he had broken into an apartment in Grand Junction, and that while he was there a woman had been stabbed several times. 2 Police officers went to the apartment identified by the caller and discovered the body of Regina Renae Drake, who had been stabbed to death. There were no indications that Regina's killer had made a forced entry. Regina was the wife of Richard Drake, who is the brother of the defendant. At around 6:00 a.m. Sergeant James Hall and Detective Ron Stiles of the Grand Junction Police Department met with Richard at his place of work to inform him of his wife's death. Sergeant Hall testified that upon learning of Regina's death Richard "took [his worker's] hat off his head and slammed it to the floor ... and let out a scream." Sergeant Hall further testified that Richard "bent over as if he was crying into his hands," but "after that was over, he raised his head up and there were no tears in his eyes or any indication that he was crying at all." Richard and the officers returned to the police station.

At the station, Sergeant Hall played the tape of the 911 call for Regina's parents and grandparents. They indicated that the caller sounded like Richard's brother Lonnie. Regina's father said the caller could possibly be the defendant. Hall then played the tape for Richard, and told Richard that Regina's father said the voice on the tape might be Lonnie's voice. Richard chuckled and said, "that is not Lonnie's voice." Detective Lester Johnson of the Grand Junction Police Department also played the tape recording of the 911 phone call for Lieutenant Richard Presnell of the Augusta, Kansas Police Department, who had grown up with the defendant and his brothers. Lieutenant Presnell told Detective Johnson that he knew without any doubt that the voice on the tape was the voice of the defendant.

At 2:00 p.m. on the afternoon of December 16th, Sergeant Hall received a telephone call from a person who identified himself as the defendant and said that he was calling from Shreveport, Louisiana. Sergeant Hall later testified that he "felt very positive" that the call was not a long-distance call and that the defendant's voice "sounded very much ... like the voice on the recording." The defendant said he knew there was some sort of problem, and he asked if Richard was there and if he could talk to Richard. Sergeant Hall, who was attempting to trace the call, gave the defendant a number to call to talk to Richard, but the defendant said he would not call back. Sergeant Hall then asked the defendant if he could have his number in Shreveport, to which the defendant replied "no, I am not at home. I am at another phone. I have to get dressed and go to work." Shortly thereafter the Grand Junction police received a phone call from the defendant's wife Stephanie, who asked if the police knew where the defendant was. Stephanie spoke with Sergeant Hall, and told him that the defendant was supposed to be in the Grand Junction area, and that he was due back in Shreveport that day.

Sergeant Hall then contacted another sergeant of the Grand Junction Police Department and the two began searching for the defendant in Grand Junction motels. Detective Stiles then reported to Sergeant Hall that Richard had described the location of a motel in Grand Junction where the defendant was staying. Based on Richard's information, Sergeant Hall and the other sergeant proceeded to the Columbine Motel, which is located next to the building containing the pay phone from which the 911 call was made. 3 The woman at the front desk of the motel identified the defendant from a photograph the officers showed to her and stated that the defendant was staying in room 8. Sergeant Hall then called some units into the area of the motel. This took about five minutes. Sergeant Hall then telephoned the defendant in room 8. Sergeant Hall later testified about the events that followed:

A ... A male voice answered and I said, "is this James"? He said, "who is this"? I said, "I am Sergeant Hall with the police department and we have the area sealed off and I would like you to come out of the room," and I told him to keep his hands where we could see them, that I did not want anybody to get hurt and he said, "okay, I will be right out," and I went back out and told Sergeant Dibsie he was coming out. However, he did not. There was at least 5 minutes delay and he never came out so I went back into the telephone room again and told him, "you told me that you were coming right out. We don't want to have any problems. We don't want anybody to get hurt. Would you please come out now and keep your hands on your head," and he indicated to me that he had been undressed and that he was nearly dressed now and he was putting his coat on and he would be right out and hung up the phone. I went back out, and he came out of the room at that time.

Q How far out of the room did he come?

A He stepped out of the room with his hands up and I told him, I then directed him to the center of the parking area and told him to stand there with his hands in the air and turn around and face the other direction with his back towards us, which he did.

It was approximately 3:15 p.m. when the Grand Junction police arrested the defendant in the parking lot of the Columbine Motel. His shirt, belt and pants were stained with blood. The officers patted the defendant down, handcuffed him and arrested him. Immediately after the defendant's arrest Sergeant Hall asked the defendant for permission to search the motel room. The defendant gave Hall permission to search the room and said that he had no objection to the search. 4 Sergeant Hall and another detective then entered the room and conducted a quick protective search to make sure that no one else was in the room. The officers determined that the room was empty and secured the room, but they did not search it. 5

Sergeant Hall then telephoned Detective Stiles and directed him and the officers holding the defendant at the station to attempt to obtain the defendant's consent to search the motel room. Detective Stiles orally advised the defendant of his Miranda 6 rights, and presented the defendant with a consent-to-search form which contained a written Miranda warning. Detective Stiles allowed the defendant to read the Miranda warning. After about fifteen to twenty minutes the defendant signed the consent-to-search form authorizing the officers to search room 8 of the Columbine Motel. When the defendant gave his written consent to search the room he commented that he had already given Sergeant Hall his permission to search the room. Detective Stiles notified Sergeant Hall that the defendant had signed the form and the officers conducted a search of the room.

Information obtained by the police after the defendant's arrest established that, up until his arrest, the defendant was probably destroying and disposing of evidence related to Regina's murder. During their search of room 8 the police found washcloths and towels with diluted blood on them. Gary Koverman, a criminalist agent 7 with the Colorado Bureau of Investigation, testified that the blood stains on the towels were diluted with water, indicating that someone had attempted to remove the blood from the towels, or had wiped the wet towels over a bloody surface. The police also recovered a ski jacket from the room. Sergeant Hall testified that when he found the ski jacket in the room it was damp and "felt like it may have been recently washed."

Sergeant Hall's testimony was later confirmed by a seriologist's examination which found blood in the crevices of the defendant's nylon jacket, but not on the "high points" of the jacket, from which it is easier to wipe away blood. The police also found a ski mask, gloves, and a tee-shirt in the defendant's motel room, all of them stained with blood. The day after the defendant's arrest Detective Johnson and Detective Eugene Peele found a knife on the roof of the K-Mart located about two blocks from the...

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