People v. Henderson

• Decision Date: 21 October 1976
• Docket Number: No. 75--917,75--917
• Citation: 559 P.2d 1108,38 Colo.App. 308
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carol D. HENDERSON, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 1108

559 P.2d 1108

38 Colo.App. 308

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carol D. HENDERSON, Defendant-Appellant.

No. 75--917.

Colorado Court of Appeals, Div. II.

Oct. 21, 1976.

Rehearing Denied Nov. 26, 1976.

Certiorari Denied Feb. 14, 1977.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Robert C. Lehnert, Asst. Attys, Gen., Denver, for plaintiff-appellee.

Penfield W. Tate, II, Denver, for defendant-appellant.

ENOCH, Judge.

Defendant Carol Henderson appeals from her conviction for theft over $100 in violation of C.R.S.1963, 40--4--401. We affirm.

The defendant was arrested for shoplifting two men's suits from the K--G Men's Store in Aurora. At trial, assistant manager of the store, Mr. James Jones, testified that on the night of the arrest he observed the defendant and a female companion in the area of the men's suits. He watched the defendant's head bob up and down behind the suit rack and then saw defendant bend down and disappear from view behind the suit rack for a period of about 30 seconds. During this time, the defendant's companion, according to Mr. Jones, was constantly observing all of the customers, and employees in the store. When defendant reappeared, she immediately left the store with her companion. Jones, his suspicions aroused, followed the pair as they left the store and proceeded through the enclosed mall of the shopping center to the building exit to the parking lot. Jones testified that defendant 'was walking pigeon-toed with a limp,' and that there was a noticeable bulge under the mumu-type dress she was wearing. He observed defendant and her companion enter a car in the parking lot, where they sat for four to five minutes. The pair then left the car and returned to the K--G Men's Store. Defendant was then walking without a limp and without the noticeable bulge. Jones returned to the store by way of a stock room entrance, and by the time the pair had reentered the store Jones had warned several employees to watch them.

After three to five minutes, Jones, with another employee, Mr. Thomas Akerman, returned to the parking lot, entered the unlocked car in which the defendant had been sitting and discovered a large garbage-type bag containing two K--G Men's Store suits on the floor of the back seat. The suits were still on a K--G Men's Store hanger, which was a type that never left the store. If a customer purchased the suit, the red stock hanger was replaced with a plain wooden hanger and a K--G Men's Store bag was placed over it.

Jones and Akerman left the suits in the car, returned to the store, and called the police. Defendant and her companion were just leaving the store at this time, and another employee of the store, Mr. Donald Boswell, testified that he had observed the defendant during this second entry into the store conceal a sport coat, still on the hanger, under her dress and then walk out of the store. Boswell testified that he informed Jones of this and that Jones followed the pair out of the store and mall a second time. On instructions of Jones, Akerman enlisted the help of a friend with a vehicle and they followed the pair as they walked out of the parking lot and into a nearby apartment complex. During this period, Aurora Police Officer Michael Steirs, who was working off-duty in uniform at the shopping center, had arrived at the store and been informed of what had transpired. Steirs told Jones to wait until defendant and her companion went back to the car. However, when the women reappeared in the parking lot, Jones detained the two women when they were about 20 feet from the car in which they had previously been sitting. Officer Steirs immediately emerged through the stock room door, and took the women into custody. Jones then informed Steirs that he was going to retrieve the suits from the car. After recovering the suits he turned them over to Steirs and another officer who had now arrived on the scene.

Defendant testified that she was merely browsing in the store, and was looking for a sport coat for her fiance. She further testified that she was three and one-half months pregnant at the time of her arrest and that this pregnancy had inflamed a varicose vein and caused her to limp. The pregnancy was also the reason she gave for wearing the loose-fitting dress. She testified that the car belonged to an acquaintance whom they had previously met in the shopping center and who had promised to give her and her companion a ride. She explained that they entered the mall a second time, after sitting in the car, to try to find this acquaintance, and had gone to the apartment complex to find another friend who turned out not to be home. Defendant also stated on direct examination that she was a credit investigator at Levitz Furniture, and that she went to Dallas, Texas, shortly after her arrest and had an abortion under the name of Jackie Hamilton.

I.

Defendant first contends that the removal of the suits from the automobile by Jones and the subsequent surrender of custody of the items to the officer on the scene constituted an illegal search and seizure in violation of the Fourth and Fourteenth Amendments, and Colo.Const. Art. II, Sec. 7, and that the evidence therefore should have been suppressed. Defendant agrees that constitutional prohibitions on searches and seizures do not in general apply to require exclusion of evidence seized by private parties. People v. Benson, 176 Colo. 421, 490 P.2d 1287. However, defendant contends that, at the time of the search and seizure, Jones was acting under the direction of the police and not as a private person. We do not agree.

An exception to the rule exists when the private person 'becomes an agent of the police by virtue of their suggestion, order, request, or participation for purposes of criminal investigation.' 68 Am.Jur.2d Searches and Seizures § 14. The test as to whether a 'search' or 'seizure' which falls within the scope of constitutional protection had occurred is whether the private person, in light of all the circumstances of the case, must be regarded as having acted as an 'instrument' or agent of the State. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, Rehearing denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120.

Here, the evidence shows, as the trial court found, that Jones acted on his own when he retrieved the clothing, and there is no evidence that the officers either directed or encouraged Jones to make the seizure. It appears from the record that, during the time that Jones retrieved the suits from the car, the officers were primarily concerned with detaining and attempting to calm the defendant and her companion.

The officers' presence in the vicinity does not necessarily constitute participation in the search and seizure. In those cases in which it was held that a policeman's presence while a search was being conducted by a private individual was sufficient to make constitutional limitations applicable there was much more participation by the officer than in this case, such as an actual entry and participation in the search, Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819, a joint plan of search, Stapleton v. Superior Court, 70 Cal.2d 97, 73 Cal.Rptr. 575, 447 P.2d 967, or standing in the doorway and taking items handed out by the private party, Moody v. United States, 163 A.2d 337 (D.C.Mun.App.). Accordingly, we hold that the admission of the evidence seized by Jones was not error.

II.

Defendant next contends that the trial court's refusal to allow a late-endorsed witness to testify unless defendant took the stand unconstitutionally compelled her to waive her right to remain silent.

Pursuant to a request by the People under Crim.P. 16, defendant was required to provide a list of prospective witnesses approximately 30 days prior to trial. At the time of trial, defendant determined it would be necessary to call a witness whose name had not been provided to the prosecution. The prosecution objected to this witness testifying. The witness was being called by the defendant to testify that her niece, the defendant, was pregnant and as a result was limping at the time of the incident for which she was charged.

In a hearing in chambers, the court determined that the testimony was merely 'corroborative' of certain facts alleged by defendant in her defense, and that the witness could not testify unless the defendant first testified as to the facts of her pregnancy and physical condition at the time of her arrest. Defendant contends this condition had the effect of compelling her to involuntarily waive her constitutional right to remain silent.

Even if the witness had been properly endorsed, the basic question is whether it was error for the court to have ruled that she could testify only if a proper foundation was first laid by other evidence. No objection to the court's ruling appears in the record, and it in fact appears that defendant's counsel acquiesced in the ruling. However, even if there had been an objection to the ruling, we do not find that ruling to be erroneous. Evidence which is not independently relevant is inadmissible unless its relevance is made to appear by other evidence. Pacific Gas & Electric Co. v. G. W. Thomas Drayage & Rigging Co., 69 Cal.2d 33, 69 Cal.Rptr. 561, 442 P.2d 641, 40 A.L.R.3d 1373; 31 A C.J.S. Evidence § 164. Furthermore, the exclusion of evidence for lack of foundation rests largely in the discretion of the trial court. Thompson v. Norman, 198 Kan. 436, 424 P.2d 593. Here, the total exclusion of the evidence was within the trial court's discretion, and the defendant was therefore not prejudiced by the judge's requirement that a foundation be laid before the testimony would be admissible.

Defendant asserts that the testimony of the witness at trial shows that testimony to be independently admissible, and argues that it must be presumed that the...