People v. McCall

• Decision Date: 09 August 1979
• Docket Number: No. 78-691,78-691
• Citation: People v. McCall, 603 P.2d 950, 43 Colo.App. 117 (Colo. App. 1979)
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard Michael McCALL, Defendant-Appellant.
• Court: Colorado Court of Appeals

Page 950

603 P.2d 950

43 Colo.App. 117

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard Michael McCALL, Defendant-Appellant.

No. 78-691.

Colorado Court of Appeals.

Aug. 9, 1979.

Rehearing Denied Aug. 30, 1979.

Certiorari Granted Dec. 17, 1979.

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Peter H. Ney, Littleton, for defendant-appellant.

PIERCE, Judge.

Defendant was convicted of first degree murder and conspiracy to commit first degree murder. He appeals and we affirm.

Defendant's alleged co-conspirator, McCarthy, testified that he, defendant, and another person planned and carried out the murder of the victim, fearing that the victim might implicate them in the theft of a motorcycle. The substance of McCarthy's testimony was corroborated by defendant's own inculpatory statement, which he made to the police after his arrest and which was introduced through one of the arresting officers.

I.

Defendant first argues that the inculpatory statement should have been suppressed since it was the product of the district attorney's unlawful plan to interrogate him contrary to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We disagree.

There is some evidence suggesting that the district attorney and various police investigators agreed to a plan whereby defendant would be misled into believing that he was not a suspect in the case, in the hopes that information could be obtained from him before advising him of his rights. There is also evidence indicating that there was as attempt to carry out this plan.

However, the plan bore no fruit, since the only statements which defendant made during this period were exculpatory. It was only after the officers abandoned the plan, arrested defendant, advised him of his rights pursuant to Miranda, and obtained a signed waiver of those rights, that defendant made the inculpatory statement. After a detailed hearing on defendant's motion to suppress, the trial court found that defendant's statement was freely and voluntarily given, a factual finding we will not disturb on review. See People v. Davis, Colo., 573 P.2d 543 (1978); People v. Costa, Colo., 566 P.2d 366 (1977).

We also disagree with defendant's contention that the statement should have been suppressed since it was the product of an unlawful warrantless arrest.

Defendant concedes that exigent circumstances are no longer statutorily required for a warrantless arrest. Section 16-3-102(1)(c), C.R.S.1973 (1978 Repl. Vol. 8). Cf. People v. Hoinville, 191 Colo. 357, 553 P.2d 777 (1976). Nevertheless, he argues that the Colorado and United States Constitutions require exigent circumstances, at least in the context of a warrantless arrest at a defendant's Home. We disagree.

The United States Supreme Court has expressly reserved the question of whether the Fourth Amendment requires police officers to obtain an arrest warrant before they may enter private premises to effect a non-exigent arrest. See United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). See generally Note, Watson & Santana: Death Knell for Arrest Warrants ?, 28 Syracuse L.Rev. 787 (1977). Our Supreme Court has not decided this issue. See People v. Casias, Colo., 563 P.2d 926 (1977). And, the federal courts of appeals and courts of other states are divided over the question. Compare United States v. Wysocki, 457 F.2d 1155 (5th Cir.), Cert. denied, 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105 (1972), and People v. Payton, 45 N.Y.2d 300, 408 N.Y.S.2d 395, 380 N.E.2d 224 (1978), With United States v. Reed, 572 F.2d 412 (2d Cir. 1978).

We are persuaded that as long as officers have probable cause to believe that a person has committed a crime, they may arrest that person regardless of where they find him, provided, of course, that in the process of finding him they do not breach his constitutionally protected expectations of privacy. We are not convinced that every arrest made at a private residence necessarily infringes on these privacy interests.

Here, where the police officers did not gain entry to the house by force, but rather were invited in by defendant's parents, any privacy expectations which defendant and his parents enjoyed were dissolved, and the warrantless non-exigent arrest was proper. See United States v. Santana, supra (White, J., concurring); Commonwealth v. Boswell, 372 N.E.2d 237 (Mass.1978). Cf. Laasch v. State, 84 Wis.2d 587, 267 N.W.2d 278 (1978) (defendant's five-year-old son, without defendant's consent, let officers into the house).

II.

We also reject defendant's contention that the trial court reversibly erred when it limited the cross-examination of McCarthy by refusing to allow inquiry into McCarthy's subjective understanding of the plea arrangement. Specifically, the trial court ruled that defense counsel could not ask McCarthy about his subjective understanding of the parole possibilities for second degree murder as opposed to those for first degree murder. We find no reversible error.

While it is true that a trial court should allow a defendant wide latitude in cross-examining his accusers, it is also true that the particular line drawn marking that latitude is a matter within the sound discretion of the trial court. People v. Crawford, 191 Colo. 504, 553 P.2d 827 (1976). We cannot say this discretion was abused here, particularly in view of the fact that defense counsel was permitted to inquire fully into the terms of the bargain which McCarthy struck, including the sentencing consequences of his guilty plea.

Moreover, in view of the other evidence against defendant, including his inculpatory statement, any error in limiting McCarthy's cross-examination was harmless. See C.R.C.P. 52(a); C. McCormick, Evidence § 40 (E. Cleary 2d ed. 1972), Quoted in People v. Taylor, 190 Colo. 210, 545 P.2d 703 (1976). See also Parker v. Randolph 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979) (Blackmun, J., concurring in part).

III.

Citing Leech v. People, 112 Colo. 120, 146 P.2d 346 (1944), defendant also argues that the trial court erred in permitting the district attorney to put McCarthy on the stand and deliberately elicit testimony from him concerning his guilty plea. However, defendant failed to object to this testimony, waiting until after the weekend recess to move for a mistrial. Under these circumstances, and perceiving no plain error, we need not reach defendant's contentions in this regard. See Crim.P. 52; Duncan v. People,178 Colo. 314, 497 P.2d 1029 (1972).

Moreover, defendant's reliance on Leec...