People v. Renfrow
| Decision Date | 24 August 1970 |
| Docket Number | No. 24808,24808 |
| Citation | 172 Colo. 399,473 P.2d 957 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Calvin RENFROW, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Carl Parlapiano, Dist. Atty., Pueblo, for plaintiff-appellee.
Rollie R. Rogers, Colo. State Public Defender, Denver, R. D. Jorgensen, Deputy State Public Defender, Pueblo, for defendant-appellant.
Renfrow, the defendant, was charged with burglary and theft. He filed two pretrial motions to suppress. One was to suppress evidence seized as the result of an allegedly illegal search and seizure, and the second was to suppress in-court identification of the defendant tainted by an allegedly suggestive pretrial identification. The trial judge denied the motion for suppression of evidence and delayed his ruling on the motion to suppress identification.
The defendant argues (1) that a motion to suppress a lineup identification is an appropriate pretrial motion and must be decided before the trial to protect the rights of the defendant; (2) the lineup was unduly suggestive; and (3) the judge erred in finding that the police entered the premises occupied by the defendant at the latter's express invitation, and that no unconstitutional search of the premises was conducted. We do not agree with these contentions of error, and we affirm the ruling of the court.
The trial judge heard testimony on the defendant's pretrial motion to suppress the lineup identification, but did not decide the motion on its merits. Instead the judge dismissed the motion for the reason that '* * * there is no statutory or rule provision that a Motion to Suppress a lineup identification be entertained by the Court prior to trial.'
The trial judge was in error to the extent he may have thought that the suppression of a lineup identification cannot be pursued by pretrial motion. A motion to suppress a lineup identification is a motion within the scope of Crim.P. 12(b)(1) which provides that any defense or objection which is capable of determination without the trial of the general issue may be raised by motion.
While the judge may have been wrong in his reason for deferring judgment on the motion, his order delaying determination until trial was within his power under Crim.P. 12(b)(4). In areas other than search and seizure and confessions, the trial judge has the authority to deter determination of a pretrial motion until trial.
C.A.R. 4.1(a) provides that an interlocutory appeal may be taken from an Adverse ruling by a trial court in a pretrial motion to suppress evidence. This rule is designed as a procedural device to facilitate review and does not represent a constitutional right on the part of either the defendant or the People. The right to bring an interlocutory appeal on a question of suppression of evidence other than those coming under Crim.P. 41 must necessarily depend on the election of the trial judge to rule on the motion rather than to defer it until trial.
In this case, not only was the deferral of determination of the motion in accordance with our rules of criminal procedure, but it reflects the emphasis this court has placed on in-court identification of the defendant At trial as the touchstone of due process. It is the substantial chance that a suggestive identification procedure has resulted in a misidentification of the defendant at trial that raises the due process question, and a complete judicial determination can only be made at that time. See Neighbors v. People, Colo., 467 P.2d 804. The defendant is not precluded from raising his timely objection at trial to the admission of evidence relating to his identification which may be tainted by a lineup and from a ruling by the judge on the question.
This court has not gone so far as to hold that motions to suppress evidence must, in every case, be determined by a Pretrial hearing. While this court has indicated that the better practice, at least with questions involving the admissibility of confessions and admissions, is to conduct a hearing before the jury becomes aware that the evidence exists, we have never made a pretrial hearing a constitutional requirement. Crim.P. 41; Velarde v. People, Colo., 466 P.2d 919. Whether or not a reference to the evidence before the jury might result in a denial of the defendant's constitutional rights is a matter which we will consider on a case by case basis as it arises. We find no reason to reverse the judge's determination to defer his decision until trial.
The defendant next contends that certain evidence was seized from the house in which he was staying as the result of an illegal search and seizure by the police. In particular, he argues that there is no evidence in the record from which the judge could have concluded that the...
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