People v. Henry, No. 27837

Docket NºNo. 27837
Citation195 Colo. 309, 578 P.2d 1041
Case DateMay 01, 1978
CourtSupreme Court of Colorado

Page 1041

578 P.2d 1041
195 Colo. 309
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Carlos O. D. HENRY, Defendant-Appellant.
No. 27837.
Supreme Court of Colorado,En Banc.
May 1, 1978.
Rehearing Denied June 5, 1978.

[195 Colo. 310] J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., David Schwartz, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Lee Belstock, James E. Scarboro, Deputy State Public Defenders, Denver, for defendant-appellant.

ERICKSON, Justice.

[195 Colo. 311] The appellant, Carlos O. D. Henry, was convicted by a jury of aggravated robbery, conspiracy to commit aggravated robbery, and felony-murder. On appeal, the appellant contends that the trial court erred in denying his motions to suppress the introduction of certain evidence and asserts that numerous errors occurred which require a new trial. We affirm.

I.

Facts

A 7-11 Store in Aurora, Colorado, was robbed at approximately 3:30 a. m. on August

Page 1042

24, 1975. The store attendant on duty was killed during the robbery by a shotgun blast fired at close range into his back. Other than the participants, there were no eyewitnesses to the crimes.

The police investigation of the criminal episode led to the arrest of Daniel F. Barnes in Cheyenne, Wyoming, on August 30, 1975. Barnes initially denied involvement in the incident, but later admitted his participation and made a statement. He informed the police that the other individuals responsible for the crimes were "Carlos," later identified as the appellant, and the appellant's common-law wife, later identified as Yvonne Brown. According to Barnes, who later pled guilty to aggravated robbery, Brown first went into the store to look things over, and the appellant, thereafter, entered the store alone, robbed it, and killed the attendant.

On August 31, 1975, the Aurora police made efforts to locate the appellant. The police eventually obtained what was believed to be the appellant's current address. Further investigation, however, revealed that the appellant had recently moved to an apartment across the street from his prior address. At approximately 9:30 p. m., seven police officers initiated surveillance of the appellant's apartment building. During the next ninety minutes, the police kept the building under surveillance, so that no one could leave unnoticed. The lights in the appellant's apartment were observed to be on, and the shower was running. At 11:00 p. m., four policemen, including two officers armed with shotguns, knocked at the appellant's door. When a voice asked who was there, an officer answered by giving the name of a known acquaintance of the appellant. Yvonne Brown opened the door, and both the appellant and Brown were arrested.

During questioning conducted on the following day, at approximately noon, the appellant waived his constitutional rights and made a statement after having been given the warnings set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He admitted having been at a party the evening of the robbery and having met a person named "Danny," identified by a photograph as Barnes. However, he denied involvement in the robbery-murder. At the time of questioning, at the request of a police officer, the appellant provided the police with a hair sample. Subsequent analysis established that the appellant's hair sample had the same characteristics on comparison as a hair found in a mask [195 Colo. 312] recovered from the 7-11 Store after the robbery.

II.

Legality of the Warrantless Arrest

The appellant's initial contention is that his warrantless arrest was made in violation of Colorado's arrest statute, section 16-3-102, C.R.S.1973: 1

"16-3-102. Arrest by peace officer. (1) A peace officer may arrest a person when:

"(a) He has a warrant commanding that such person be arrested; or

"(b) Any crime has been or is being committed by such person in his presence; or

"(c) He has probable cause to believe that an offense was committed and has probable cause to believe that the offense was committed by the person to be arrested. An arrest warrant should be obtained when practicable."

It is well established that only probable cause and exigent circumstances serve to excuse the statutory warrant requirement. People v. Litsey, Colo., 555 P.2d 974 (1976); People v. Hernandez, Colo., 554 P.2d 291 (1976); People v. Hoinville, Colo., 553 P.2d 777 (1976); People v. Fratus, 187 Colo. 52, 528 P.2d 392 (1974); People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971). In People v. Hoinville, supra, we examined our statutory requirement and declared:

"In order to give practical meaning to what the legislature has written, we must hold sub-section (1)(c) to require that police officers must obtain an arrest warrant whenever possible.

Page 1043

"Such a requirement does not impede effective police action. It does not deprive police officers of the right to make an arrest where exigent circumstances exist. It expresses the view of the American people, as enunciated as early as the discussions of the framers of the Bill of Rights that wherever possible, a neutral magistrate should make probable cause determinations. See Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

"When immediate police action is essential to protect the public safety, the warrant preference expressed by section 16-3-102(1)(c) must, and does give way to the public security. DeLaCruz v. People, 177 Colo. 46, 492 P.2d 627 (1972). But when an adequate opportunity to obtain an arrest warrant exists, the police, by the terms of section 16-3-102(1)(c), must obtain an arrest warrant." (Footnote omitted.)

Both parties recognize that the Hoinville case states the law in Colorado, but disagree as to the existence of probable cause and exigent circumstances. A review of the record clearly establishes...

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31 practice notes
  • People v. Curtis, Nos. 82SC414
    • United States
    • Colorado Supreme Court of Colorado
    • April 23, 1984
    ...denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981); People v. Montez, 197 Colo. 126, 589 P.2d 1368 (1979); People v. Henry, 195 Colo. 309, 578 P.2d 1041, appeal dismissed, 439 U.S. 961, 99 S.Ct. 445, 58 L.Ed.2d 419 (1978). Our recognition of the constitutional right to testify is ......
  • People v. Castro
    • United States
    • California Court of Appeals
    • January 24, 1984
    ...(1977) 89 Wash.2d 217, 570 P.2d 1208, 1212-1215; in accord, People v. Layton (1980) 200 Colo. 59, 612 P.2d 83, 84; People v. Henry (1978) 195 Colo. 309, 578 P.2d 1041, 1045, appeal dism., 439 U.S. 961, 99 S.Ct. 445, 58 L.Ed.2d 419; Johnson v. State (Fla.1979) 380 So.2d 1024, 1026; Commonwea......
  • People v. Meyers, No. 80SA75
    • United States
    • Colorado Supreme Court of Colorado
    • October 6, 1980
    ...(1979); People v. Montez, 197 Colo. 126, 589 P.2d 1368 (1979); People v. McKenna, 196 Colo. 367, 585 P.2d 275 (1978); People v. Henry, 195 Colo. 309, 578 P.2d 1041 (1978); Velarde v. People, 179 Colo. 207, 500 P.2d 125 (1972). We are not persuaded that reconsideration of that issue is justi......
  • People v. Tippett, No. 86SA3
    • United States
    • Colorado Supreme Court of Colorado
    • March 9, 1987
    ...was an abuse of discretion. People v. Schwartz, 678 P.2d 1000 (Colo.1984); People v. Cole, 654 P.2d 830 (Colo.1982); People v. Henry, 195 Colo. 309, 578 P.2d 1041, appeal dismissed, 439 U.S. 961, 99 S.Ct. 445, 58 L.Ed.2d 419 (1978). In applying the legal principles to the evidence, there wa......
  • Request a trial to view additional results
31 cases
  • People v. Curtis, Nos. 82SC414
    • United States
    • Colorado Supreme Court of Colorado
    • April 23, 1984
    ...denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981); People v. Montez, 197 Colo. 126, 589 P.2d 1368 (1979); People v. Henry, 195 Colo. 309, 578 P.2d 1041, appeal dismissed, 439 U.S. 961, 99 S.Ct. 445, 58 L.Ed.2d 419 (1978). Our recognition of the constitutional right to testify is ......
  • People v. Castro
    • United States
    • California Court of Appeals
    • January 24, 1984
    ...(1977) 89 Wash.2d 217, 570 P.2d 1208, 1212-1215; in accord, People v. Layton (1980) 200 Colo. 59, 612 P.2d 83, 84; People v. Henry (1978) 195 Colo. 309, 578 P.2d 1041, 1045, appeal dism., 439 U.S. 961, 99 S.Ct. 445, 58 L.Ed.2d 419; Johnson v. State (Fla.1979) 380 So.2d 1024, 1026; Commonwea......
  • People v. Meyers, No. 80SA75
    • United States
    • Colorado Supreme Court of Colorado
    • October 6, 1980
    ...(1979); People v. Montez, 197 Colo. 126, 589 P.2d 1368 (1979); People v. McKenna, 196 Colo. 367, 585 P.2d 275 (1978); People v. Henry, 195 Colo. 309, 578 P.2d 1041 (1978); Velarde v. People, 179 Colo. 207, 500 P.2d 125 (1972). We are not persuaded that reconsideration of that issue is justi......
  • People v. Tippett, No. 86SA3
    • United States
    • Colorado Supreme Court of Colorado
    • March 9, 1987
    ...was an abuse of discretion. People v. Schwartz, 678 P.2d 1000 (Colo.1984); People v. Cole, 654 P.2d 830 (Colo.1982); People v. Henry, 195 Colo. 309, 578 P.2d 1041, appeal dismissed, 439 U.S. 961, 99 S.Ct. 445, 58 L.Ed.2d 419 (1978). In applying the legal principles to the evidence, there wa......
  • Request a trial to view additional results

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