People v. Page

• Decision Date: 02 March 1995
• Docket Number: No. 93CA1367,93CA1367
• Citation: 907 P.2d 624
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Billy J. PAGE, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 624

907 P.2d 624

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Billy J. PAGE, Defendant-Appellant.

No. 93CA1367.

Colorado Court of Appeals,

Div. II.

March 2, 1995.

Rehearing Denied April 13, 1995.

Certiorari Denied Dec. 11, 1995.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Laurie A. Booras, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge BRIGGS.

Defendant, Billy Joe Page, appeals the judgments of conviction on two counts of attempted first degree murder, two counts of first degree assault, and four counts of crime of violence. Defendant challenges, among other things, the admissibility of evidence obtained pursuant to search warrants, of a confession he made after his arrest and while a public defender was attempting to contact him, of testimony by a witness who contacted police, and of a police report documenting defendant's confession. He also contends that the trial court abused its discretion when it sentenced him to forty years in prison for each conviction of attempted murder and erred in imposing consecutive sentences for the first degree assault and attempted murder convictions as to each victim. We affirm the judgments of conviction. The sentences imposed are also affirmed, except that the cause is remanded to the trial court with directions to amend the mittimus to impose concurrent, rather than consecutive, terms of imprisonment for the assault and attempted murder convictions as to each victim.

I.

As two women were jogging in the desert near Grand Junction, they were approached by a man on a motorcycle. He dismounted, walked toward them, raised a pistol, and began firing. Each woman was shot once, the first in the chest, the second in the hand. Both fell to the ground. The man walked closer. He shot each woman a second time, the first in the face, the second in the back of the head.

When one of the women heard the gun clicking, as if it were out of bullets, she got up, struggled with the man, and yelled at her friend to run. Both women fled before he could reload. The man did not pursue them further. Both women survived.

The police investigation led to defendant. His defense at trial was misidentification.

II.

Defendant contends the trial court erred in failing to suppress evidence obtained pursuant to search warrants and a Crim.P. 41.1 order for nontestimonial identification. He argues that the supporting affidavits, which were virtually identical, failed to establish a sufficient nexus between the criminal act, the property to be seized, and the place to be searched, and that omitted material facts rendered the affidavits so misleading as to make the finding of probable cause erroneous. We are not persuaded.

A.

The Fourth Amendment and Colo. Const. art. II, § 7, prohibit the issuance of a search warrant except upon probable cause supported by oath or affirmation particularly describing the place to be searched or the objects to be seized. Under both constitutions, probable cause exists when an affidavit for a search warrant alleges sufficient facts to warrant a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched. People v. Abeyta, 795 P.2d 1324 (Colo.1990); People v. Quintana, 785 P.2d 934 (Colo.1990).

The issuing judge or magistrate is to make a practical, common-sense decision whether, given the totality of the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be found in a particular place. The duty of a reviewing court is to ensure that the judge or magistrate had a substantial basis for concluding that probable cause existed. Doubts concerning the existence of probable cause are to be resolved in favor of the determination by the judge or magistrate in order to avoid giving police an incentive to resort to warrantless searches. People v. Abeyta, supra.

Here, the affidavits each consisted of a thirteen-page statement by the investigating officer. The affidavits recounted reports from numerous interviews with the victims, the crime scene investigation, and citizen responses to the publication of a composite drawing of the suspect, including that of an acquaintance of defendant who reported defendant's suspicious activities after the shootings. The affidavits also recounted the affiant's inspection of defendant's motorcycle and the similarities between its tire treads and photographs of tread marks left at the crime scene. Finally, the affidavits report a statement by a citizen who had seen a gun in defendant's home after the shootings.

The information in the affidavits provided a substantial basis for the issuing judge's finding of probable cause. See United States v. Rahn, 511 F.2d 290 (10th Cir.1975). We will therefore not disturb that finding on appeal. See People v. Pate, 878 P.2d 685 (Colo.1994).

B.

The omission of material facts known to the affiant at the time the affidavit was executed may cause statements within the affidavit to be so misleading that a finding of probable cause based on such statements may be deemed erroneous. People v. Winden, 689 P.2d 578 (Colo.1984). However, "an omitted fact [is] material for purposes of vitiating an entire affidavit only if its omission rendered the affidavit substantially misleading to the judge who issued the warrant.... By the same token, omission of facts relative to a statement in an affidavit should require striking the statement only if the statement is substantially misleading without the missing facts." People v. Unruh, 713 P.2d 370, 381 (Colo.1986). Omissions that are the product of an intentional effort to mislead the issuing judge or magistrate or a reckless disregard of known material facts would normally justify more severe sanctions than errors occurring for other reasons. People v. Winden, supra.

Here, the omissions from the affidavits challenged by defendant, including those concerning the number of composite drawings of the suspect, the existence of and information given by telephone tipsters other than the acquaintance of defendant, and the description of the color of the motorcycle on different occasions by the victims, do not render the affidavits misleading. There is no requirement that all steps taken, all information obtained, and all statements made by witnesses during the course of an investigation be described fully and in chronological order in an affidavit. None of the omitted information made the affidavits, or any statements in them, misleading as to the existence of probable cause.

III.

Defendant also contends that the search warrants could not be properly issued based on the affidavits because a virtually identical affidavit was submitted in support of the motion for an order for nontestimonial identification pursuant to Crim.P. 41.1, and in that motion the prosecutor included a statement that "there are reasonable grounds, not yet amounting to probable cause to arrest, that the suspect Billy Joe Page may have committed the offense." Defendant argues that this constitutes a judicial admission that there was no probable cause for issuance of the search warrants. We disagree.

Defense counsel failed to make this argument to the trial court. Our review is therefore limited to determining whether the trial court committed plain error in issuing the search warrants because of the statement in the Crim.P. 41.1 motion. See Crim.P. 52(b); People v. Kruse, 839 P.2d 1 (Colo.1992). Plain error exists only if we can say with fair assurance that the error so undermined fundamental fairness as to cast serious doubt on the reliability of the judgment of conviction. See Wilson v. People, 743 P.2d 415 (Colo.1987).

A judicial admission is a "formal, deliberate declaration which a party or his attorney makes in a judicial proceeding for the purpose of dispensing with proof of formal matters of facts about which there is no real dispute." People v. Garcia, 826 P.2d 1259, 1263 (Colo.1992).

Here, the statement in the motion was a recitation of one of the bases for the issuance of an order for nontestimonial identification set forth in Crim.P. 41.1(c). However, in order to obtain the order, it was not necessary that the prosecutor establish that in fact no probable cause for arrest existed. Rather, it was necessary to establish that at least reasonable grounds existed to suspect that the subject of the order committed the offense. See generally People v. Harris, 762 P.2d 651 (Colo.1988).

In these circumstances, we do not consider the rote recitation of a minimum legal standard to be a declaration made "for the purpose of dispensing with proof of formal matters or of facts about which there is no real dispute." See People v. Garcia, supra. The trial court therefore did not commit plain error in issuing the separate search warrants based on the supporting affidavits.

IV.

Defendant asserts the trial court erred in failing to suppress the confession he made after his arrest. He argues that the affidavit supporting the arrest warrant suffered from deficiencies similar to those he asserted in regard to the affidavits supporting the search warrants, and thus, the confession was the fruit of an illegal arrest.

For the same reasons that we have concluded there was no error in the issuance of the search warrants, we find no error in the issuance of the arrest warrant. The trial court therefore did not err in refusing on this basis to suppress defendant's confession.

V.

Defendant's next contention is that the failure of the Sheriff's Department to advise him during his interrogation of the presence of two public defenders who sought to meet with him, as well as the Department's failure to interrupt his interrogation for such a meeting, violated his constitutional and...