People v. Loggins

• Decision Date: 29 October 1998
• Docket Number: No. 96CA0154,96CA0154
• Citation: 981 P.2d 630
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Byron A. LOGGINS, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 630

981 P.2d 630

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Byron A. LOGGINS, Defendant-Appellant.

No. 96CA0154.

Colorado Court of Appeals Div. I.

Oct. 29, 1998.

As Modified on Denial of Rehearing Dec. 17, 1998.

Certiorari Denied Aug. 16, 1999. ^*

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Paul Koehler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Anthony Viorst, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, Byron Loggins, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession of a controlled substance. We affirm.

During the evening of January 15, 1995, police officers responded to a report that gunshots had been fired and found defendant lying on a porch with a serious gunshot wound. An ambulance was called and defendant was taken to University Hospital in Denver.

Following the standard procedure for treating trauma victims, emergency room personnel removed defendant's clothes and they observed a small piece of plastic sticking out from between defendant's buttocks. An attending doctor pulled on the visible plastic, which resulted in the removal of a plastic bag containing suspected cocaine. A paramedic turned the bag over to the police officer who had originally found defendant at the scene of the shooting, and the charges here at issue resulted.

I.

Defendant first contends that the trial court erred in denying his challenge for cause to a prospective juror who knew one of the prosecution's witnesses, and that the error was compounded when the court reporter lost the stenographic notes of voir dire and the parties were unable to reconstruct that particular juror's exact words at a later hearing. Defendant maintains he is entitled to a new trial. We disagree.

A trial court must sustain a challenge for cause of a potential juror if there exists a "state of mind in the juror evincing enmity or bias toward the defendant or the state." But, if the court is satisfied that the potential juror will render a fair and impartial verdict according to the law and to the evidence submitted at trial, that person should not be disqualified. Section 16-10-103(1)(j), C.R.S. 1998; Crim. P. 24(b)(1)(X).

The court has broad discretion in deciding whether to grant or deny a challenge for cause to a potential juror, and a decision denying such a challenge will be set aside only if the record discloses a clear abuse of that discretion. People v. Wright, 672 P.2d 518 (Colo.1983). This standard recognizes that the trial judge is the only judicial officer able to assess fully the attitudes and state of mind of a potential juror by personal observation and to determine the significance of what may appear to be inconsistent or self-contradictory responses to difficult questions. See People v. Russo, 713 P.2d 356 (Colo.1986).

An expression of concern by a potential juror regarding some facet of the case or about jury service does not mandate the automatic exclusion of such person for cause. People v. Taggart, 621 P.2d 1375 (Colo.1981). If the record adequately supports the trial court's decision to deny the challenge for cause, then the decision should not be reversed. People v. Sandoval, 733 P.2d 319 (Colo.1987).

Loss of a portion of the complete trial record does not automatically require reversal. Nonetheless, reversal is required when a defendant can show that the incomplete record "visits a hardship" upon him or her and prejudices the appeal. People v. Killpack, 793 P.2d 642, 643 (Colo.App.1990).

Here, because a portion of the court reporter's notes had been lost, the court held a hearing to reconstruct, to the extent possible, the relevant portion of voir dire. See C.A.R. 10(c) and (e) (discussing procedure when transcript is unavailable). At that hearing, defense counsel proffered a written statement setting forth his recollection of what the prospective juror had stated during voir dire. Defense counsel recalled the prospective juror saying that he would try to treat the prosecution's witness, a police officer, like any other witness, but that it would be very difficult, given the cordial nature of the relationship between the two.

However, the prosecutor's statement at the reconstruction hearing was that he would not have opposed the defendant's challenge for cause if the prospective juror's statements were as set forth by defense counsel.

The trial judge who presided over defendant's trial testified at the reconstruction hearing that: (1) in deciding whether a prospective juror harbored any bias which would affect his or her impartiality, the judge normally examined demeanor and body language as well as the prospective juror's statements; and (2) the judge was convinced by this prospective juror's statements that, whatever may have been his relationship with the prosecution's witness, the prospective juror could put that aside and decide the case fairly.

The partial record of voir dire supports this conclusion by the trial court. It reflects the following exchange between the court and the prospective juror:

JUROR: I am a neighbor of [the officer].

COURT: Will that influence your decision, suppose he takes the stand, will you give more credibility to his testimony because he is a neighbor or less?

JUROR: No, sir.

In People v. Zurenko, 833 P.2d 794 (Colo.App.1991), upon which defendant relies, the panel held that a prospective juror should have been excused for cause after admitting that she was familiar with the prosecution's expert witness, and that she would be more inclined to believe that witness.

In contrast, here, the trial court was persuaded that the prospective juror could be fair and impartial. Because the record as a whole supports the trial court's determination that defendant's challenge for cause should have been denied, we thus perceive no abuse of discretion by the court in so ruling.

II.

Next, defendant contends the trial court erred in denying his motion to suppress evidence discovered as a result of what defendant characterizes as "an unconstitutional body cavity search." He asserts that the actions of the paramedic and emergency room doctor in removing the baggie of cocaine from between his buttocks constituted an unreasonable search. In response, the People maintain that no search occurred at all.

A. No Search

The People's contention that no search occurred under these circumstances is supported by court decisions that have interpreted the phrase "searches and seizures" in the Fourth Amendment to regulate the type of conduct designed to elicit a benefit for the government in an investigatory or, more broadly, an administrative capacity. United States v. Attson, 900 F.2d 1427 (9th Cir.1990). See New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (Fourth Amendment applies to conduct of governmental officials acting in various civil capacities but primarily involving activities of an investigative or administrative nature). Governmental conduct not actuated by an investigatory or administrative purpose has not been considered to be a search or seizure for purposes of the Fourth Amendment.

Thus, in United States v. Attson, supra, the court held that because a government-employed physician who attended defendant after a vehicle accident acted for a medical purpose and did not intend to benefit the government in its investigative or administrative capacity, the taking of defendant's blood sample was not a "search or seizure" under the Fourth Amendment.

University Hospital has been held to be a public entity, Colorado Association of Public Employees v. Board of Regents, 804 P.2d 138 (Colo.1990), and the People do not quarrel with defendant's assertion that the actions of the medical personnel employed there constituted state action.

Here, it is undisputed that the hospital's medical personnel were following standard hospital procedures used for treating trauma victims brought into the emergency room. Their conduct was not actuated by an investigatory or administrative purpose.

Accordingly, we conclude that there was no search or seizure within the meaning of the Fourth Amendment or Colo. Const. art. II, § 7. See United States v. Attson, supra.

B. Medical Emergency Exception

Even if we were to agree with defendant that a search had occurred within the meaning of the Fourth Amendment or Colo. Const. art. II, § 7, we would still reject his contention that his constitutional rights were violated.

The medical emergency exception is a variant of the exigent circumstances doctrine and creates an exception to the prohibition against warrantless searches. The exception recognizes that it is reasonable for public officials to respond to a medical emergency, even over the injured party's objections. See People v. Wright, 804 P.2d 866 (Colo.1991) (discussing medical emergency exception to the warrant requirement).

Consequently, courts have held that any evidence revealed by treatment provided in the course of that emergency is not within the scope of the constitutional prohibition against warrantless searches and is not illegally obtained. 3 W. LaFave, Search & Seizure § 5.4(c) (1996). See also United States v. Borchardt, 809 F.2d 1115 (5th Cir.1987)(if reasonable and good faith intrusion is made to assist person who is in imminent danger of physical harm, evidence of crime discovered thereby is admissible in criminal proceedings).

In applying such an exception, the courts have recognized that a warrantless search has occurred, but have justified it based on the existence of an emergency situation which posed a threat to the life or safety of the persons searched or others. People v. Wright, supra.

As noted, it was only during the course of emergency treatment and diagnosis that...