People v. Gomez, 80SA494
| Decision Date | 10 August 1981 |
| Docket Number | No. 80SA494,80SA494 |
| Citation | 632 P.2d 586 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph Raymond GOMEZ, Defendant-Appellant. |
| Court | Colorado Supreme Court |
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Susan P. Mele-Sernovitz, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Eugene Deikman, Denver, for defendant-appellant.
Joseph Raymond Gomez (defendant) appeals his conviction for possession of a narcotic drug for sale in violation of section 12-22-322(1)(a), C.R.S.1973 . 1 He asserts several grounds for reversal including the trial court's refusal to suppress evidence seized in the course of a warrantless entry into his motel room, various evidentiary rulings made by the court during the trial, the court's instruction on the statutory definition of sale and its refusal to give certain tendered instructions to the jury, and the alleged insufficiency of the evidence to support his conviction. We affirm the conviction.
The information charged that the defendant on November 11, 1977, unlawfully possessed for sale a narcotic drug, heroin, with the specific intent to induce or aid another person to unlawfully use or possess the heroin. The charge arose out of the defendant's arrest in the early morning hours of November 11, 1977, at the Sunset Village Motel in Lakewood, Colorado.
During the month preceding the defendant's arrest the management of the motel had experienced a series of thefts from the motel units. The manager noticed that four persons registered at the motel on several occasions under different names and the thefts usually occurred during their stay there. Agent Shilaos of the Lakewood Department of Public Safety advised the manager to notify him if any of the four persons registered at the motel again. During the evening of November 10, 1977, the defendant's companion, Joseph Herrera, who was one of the four suspects, registered at the motel and occupied unit 17 with the defendant. Upon being notified of this by the manager, Agents Shilaos and Shaw went to the motel to talk to Herrera about the thefts. Shilaos was dressed in plain clothes and Shaw was in uniform.
Unit 17 is a rectangular bedroom with a shower and toilet. It is approximately twenty-four feet in length from east to west and twelve feet deep. The front door opens on the north side to a sidewalk or entrance way which extends along the entire front of the unit. There are two large casement windows in the northwest corner of the unit, both of which are located at normal eye level. One window faces north and directly overlooks the sidewalk and the other faces west and overlooks the sidewalk at a slight angle. The windows had curtains but the curtains on the window facing north had a gap or aperture of 11/2 to 2 inches. Approximately four feet inside the unit, directly south of the curtain gap, was a makeup table with a five foot mirror on it.
The officers parked their vehicles near unit 17 in a common parking area. In walking from his vehicle to the sidewalk area, Shilaos noticed a person, later identified as Herrera, looking out the door window and closely watching him. On reaching the sidewalk directly adjoining the unit, Shilaos noticed the gap or break in the curtains covering the window facing north. The room inside was well illuminated. From the sidewalk area he looked through this gap and observed a man, later identified as the defendant, seated at the makeup table in front of the large mirror inside the unit. Shilaos saw the defendant moving a pile of brownish granular material toward a larger pile of white powder and concluded that he was observing the cutting of heroin with milk sugar. He told Agent Shaw of his observations and immediately radioed for assistance.
Shilaos then ran to the front door of the unit, identified himself as a police officer, and demanded entry. Herrera held the door shut but Shilaos was able to push it open. As the officers entered the room the defendant was exiting the bathroom adjoining the bedroom and the toilet was flushing. Shilaos ran to the bathroom and saw a clear plastic bag containing the same brown granular material going down the toilet. He unsuccessfully attempted to retrieve the bag from the toilet. A brown powdery material was visible around the porcelain rim of the toilet and on some utensils in the bedroom. 2 On the makeup table in the bedroom were various implements associated with the dilution and use of heroin, including a bag of balloons, small measuring spoons, plastic lids, cotton swabs, a syringe, and an empty container of lactose.
The defendant and Herrera were placed under arrest and searched. Cash in the amount of $275 was recovered from the pants pocket of the defendant. With their hands and through the use of an adhesive tape, the officers gathered up 160 milligrams of material from the area under and around the makeup table. They also seized the narcotics paraphernalia plainly visible on the makeup table. The trial court denied the defendant's pretrial motion to suppress the evidence recovered from the motel unit, concluding that Agent Shilaos' initial observations of the defendant in the motel room were lawful and established probable cause and exigent circumstances to enter the motel unit for the purpose of arresting the defendant and seizing the evidence therein.
During the trial Officer Shilaos described the circumstances of the defendant's arrest and the removal and preservation of the brown granules from the motel room. The granules were placed in a box and later were transmitted to the Colorado Bureau of Investigation (CBI) for chemical tests and then returned to the Lakewood Department of Public Safety. CBI Agent Netwall, whom the trial court received as an expert witness in analytical chemistry, testified that when he opened the box, there were no loose granules inside but, rather, all granules were sticking to the adhesive tape. The People offered into evidence the box and its contents, People's Exhibit 10, to which the defendant objected on the ground that an unbroken chain of custody had not been sufficiently established. The court overruled the objection and admitted the exhibit.
Agent Netwall described various chemical tests performed on the residue recovered from the motel and testified that in his opinion the 160 milligrams of material contained 21.6 milligrams of heroin. On cross-examination of Agent Netwall, defense counsel elicited testimony that 21.6 milligrams of heroin were the equivalent of 0.0007 of an ounce. On redirect examination Netwall testified that this amount represented a usable quantity of heroin and that other drugs, such as codeine, were used in amounts ranging from 2 to 15 milligrams. The defendant unsuccessfully objected to Netwall's redirect testimony as beyond the qualifications of the witness and outside the scope of proper redirect examination.
During the prosecution's case in chief the defendant unsuccessfully moved to strike the testimony of three prosecution witnesses on the grounds that they violated a sequestration order. Agent Knott, a member of the Lakewood Police Department, testified to the general method of illegal distribution and use of heroin. During a recess it was brought to the attention of the court that he had talked to Agent Shilaos about the condition in which Shilaos found the drug paraphernalia on the night of the arrest. The defendant moved for a mistrial and alternatively to strike Knott's testimony and that of Shilaos. The prosecution argued that it intended to proffer this information to Agent Knott in the course of further direct examination by asking him a hypothetical question and, therefore, the defendant suffered no prejudice by the technical violation of the sequestration order. The trial court denied the defendant's motion for a mistrial but ordered that there be no further direct examination of Agent Knott. It was also brought to the attention of the trial court that a conversation between the District Attorney and Agent Netwall about the percentages of active ingredients in certain drugs had been inadvertently overheard by Agent Knott. The defendant moved to strike the testimony of both Netwall and Knott. The trial court denied the motion to strike, finding that Knott's overhearing the conversation was inadvertent.
At the conclusion of the People's case the defendant moved unsuccessfully for a judgment of acquittal. Over the defendant's objection the court included in the instructions the statutory definition of "sale" as including "barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee." Section 12-22-301(25), C.R.S.1973 . The defendant tendered seven jury instructions, all of which were rejected. Two tendered instructions concerned the legal sufficiency and significance of evidence of useless traces of narcotics. Three of the defendant's instructions related to the evidentiary significance of such matters as the recent past possession or use of narcotics, the mere presence of the defendant on premises where narcotics were found and the defendant's joint possession of the motel room with another. The defendant's other two instructions dealt with opinion testimony and the prosecution's burden to prove that the amount of heroin actually recovered was usable.
The court submitted to the jury the crimes of possession of a narcotic drug, heroin, for sale with the intent to induce or aid another to use or possess the heroin, section 12-22-322(1)(a), C.R.S.1973 , and the lesser offense of possession of a narcotic drug, section 12-22-302, C.R.S.1973 . The jury returned a verdict of guilty to the principal charge, resulting in a sentence to a...
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