People v. Martinez
Decision Date | 12 April 2001 |
Docket Number | No. 98CA2228.,98CA2228. |
Citation | 32 P.3d 520 |
Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Max A. MARTINEZ, Defendant-Appellant. |
Court | Colorado Court of Appeals |
Certiorari Denied October 1, 2001.1
Ken Salazar, Attorney General, Paul Koehler, Assistant Attorney General, Lauren Edelstein Park, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
Law Offices of Peter R. Bornstein, Peter R. Bornstein, Denver, CO, for Defendant-Appellant.
Opinion by Judge ROTHENBERG.
Defendant, Max A. Martinez, appeals the judgment of conviction entered upon jury verdicts finding him guilty of second degree kidnapping, first degree assault, second degree assault, and first degree sexual assault. He also appeals the sentence imposed. We affirm, but remand for correction of the mittimus.
This case arises from the sexual assault of a fifteen-year old girl and the beating of her sixteen-year-old male cousin in a rural area of Adams County in August 1997. The victims were waiting for a bus in Denver when two men in a car drove up to them. A man later identified as defendant pointed a gun at the victims and ordered them into the back seat of the car.
A few minutes later, the driver (co-defendant) stopped the car at a gas station. While defendant got out to use the pay phone, the co-defendant got into an altercation with the station attendant, who later selected the co-defendant's picture from a police photo lineup. The attendant also identified the vehicle, but he could not see into the back of the car because it had tinted windows.
After the car left the gas station, it pulled into the parking lot of a convenience store. Defendant pointed a gun at the victims stating, "Don't get out of the car," and the co-defendant approached a female clerk in the store. According to her testimony, he asked for her pager number and she wrote it on a piece of paper and gave it to one of the men.
The men then drove with the victims to some trailer homes or duplexes. They ordered the male victim out of the car at gunpoint and told him to get into a blue and gray Chevy Blazer parked nearby that was later identified as belonging to defendant. Defendant and the co-defendant drove the two vehicles in tandem to a remote field in Adams County where they ordered the male victim out of the Blazer. They kicked and beat him with a baseball bat, and left him unconscious on the ground. The two men then sexually assaulted the female victim and beat her until she was unconscious. When she regained consciousness, she summoned help.
Upon arrival at the scene, the police found the male victim unconscious in the field. The prosecution presented evidence at trial that he was so badly beaten he was unable to remember the events and did not testify at trial. The female victim suffered a skull fracture, abrasions to the head and back, and other injuries.
After defendant was selected from a photo lineup by the convenience store clerk and the female victim, police obtained an arrest warrant for him and arrested him at his home. A blue and gray Chevrolet Blazer was parked nearby. The police seized it without a warrant and impounded it. Later, they prepared an affidavit and obtained a search warrant for the vehicle. In the glove compartment, police found a slip of paper later identified by the clerk as the pager number she had given to the men.
Defendant was tried separately from the co-defendant and convicted of first degree assault on the male victim. Defendant was also convicted of three offenses against the female victim: second degree kidnapping, first degree sexual assault, and second degree assault.
The following issues are presented on appeal: (1) whether the trial court erred in denying defendant's motion to suppress evidence seized from his vehicle; (2) whether he should have been granted a mistrial because the co-defendant was brought into the courtroom in jail clothes and shackles; (3) whether the admission of testimony by a victim and a detective in another case as similar act evidence unfairly prejudiced defendant; (4) whether the photographic lineup used to identify him was unfairly suggestive; (5) whether he was entitled to concurrent rather than consecutive sentences; and (6) whether the mittimus reflects the proper sentence.
We agree with defendant that the mittimus must be corrected to reflect a total sentence of 91.5 years in the Department of Corrections, rather than 93.5 years as was stated by the trial court. However, we reject all of his other arguments.
Defendant first contends the trial court erred in denying his motion to suppress as evidence the slip of paper recovered from the glove box of his vehicle, a key piece of evidence linking him to the crime because it contained the convenience store clerk's pager number. Defendant claims that the vehicle was illegally seized without a warrant and that, even though a search warrant later was obtained, the police conduct violated his constitutional right to be free from unreasonable searches and seizures under U.S. Const. amend. IV and Colo. Const. art. II, § 7. We disagree.
As a general rule, the Fourth Amendment requires police to secure a warrant before conducting a search. However, there is an exception for vehicles. Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); People v. Reyes, 956 P.2d 1254 (Colo. 1998). The vehicle exception "is predicated on the inherent mobility of motor vehicles and the diminished expectation of privacy in an object designed exclusively as a means of transportation." People v. Thiret, 685 P.2d 193, 202 (Colo.1984).
Although earlier decisions have reasoned that an automobile's mobility created exigent circumstances that often make it impractical for police officers to obtain a search warrant, see People v. Naranjo, 686 P.2d 1343 (Colo.1984), it is now clear that exigent circumstances are not required under the automobile exception. Maryland v. Dyson, supra. If there is probable cause, the vehicle may be searched immediately without a warrant or seized for a later search after a warrant is obtained. People v. Romero, 767 P.2d 1225 (Colo.1989); People v. Thiret, supra.
As a threshold matter, we reject defendant's contention that the People may not raise the automobile exception on appeal because they failed to do so during the suppression hearing in the trial court. A party may defend the judgment on any ground supported by record, whether or not the trial court relied on or considered the argument. See People v. Quintana, 882 P.2d 1366 (Colo. 1994).
We are satisfied that the seizure and subsequent search of defendant's vehicle met the requirements of the automobile exception.
At the time defendant's vehicle was seized, the female victim had already informed police that one of the vehicles used in the crimes was a "Blazer of some type," and she had identified defendant in a photo lineup as one of the assailants. Defendant was arrested at his home pursuant to a warrant, and a Blazer was parked on the street outside of his residence and was the same color described by the victim. The police checked the license plate and discovered that the vehicle was registered to defendant.
Although the affidavit supporting defendant's arrest warrant identified a much earlier model Blazer, defendant was identified as a suspect and his vehicle was alleged to have been used during the crimes. See People v. Edwards, 836 P.2d 468 (Colo.1992)(probable cause means reasonable grounds to believe that contraband or evidence of criminal activity is located in area to be searched). Another important factor was the mobility of the vehicle and the potential that it could easily have been removed and evidence could have been destroyed or lost.
Accordingly, we conclude there was probable cause for the warrantless seizure of defendant's vehicle.
We also agree with the trial court that the affidavit in support of the search warrant for the vehicle established probable cause for the later search at the police impound lot.
Probable cause is established when an affidavit submitted in support of a search warrant alleges facts sufficient to cause a person of reasonable caution to believe that contraband or other evidence of criminal activity is located at the place to be searched. The standard for evaluating whether a search warrant complies with constitutional requirements is one of practical accuracy rather than technical nicety, and a description is adequate if the officer executing the warrant can with reasonable effort ascertain and identify the place intended to be searched. People v. Meraz, 961 P.2d 481 (Colo.1998); People v. Ragulsky, 184 Colo. 86, 518 P.2d 286 (1974).
A trial court's finding that there was probable cause to support the issuance of a search warrant is entitled to great deference, and a reviewing court need only determine that a substantial basis existed for the finding. See People v. Leftwich, 869 P.2d 1260 (Colo.1994).
Contrary to defendant's contention, the affidavit in support of the search warrant for the vehicle was not fatally defective because it failed to state specifically that the sexual assault had taken place inside the car. That affidavit specified that the police intended to search for:
The affidavit also set forth the circumstances surrounding the alleged crimes and directed the officers...
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