People v. Rogers

• Citation: 68 P.3d 486
• Decision Date: 12 September 2002
• Docket Number: No. 01CA0105.,01CA0105.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas P. ROGERS, Defendant-Appellant.
• Court: Court of Appeals of Colorado

68 P.3d 486

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas P. ROGERS, Defendant-Appellant.

No. 01CA0105.

Colorado Court of Appeals, Div. II.

September 12, 2002.

Rehearing Denied November 14, 2002.

Certiorari Denied May 12, 2003.

Ken Salazar, Attorney General, Cheryl Hone, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

James Grimaldi, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Thomas P. Rogers, appeals the judgment of conviction entered upon jury verdicts finding him guilty of first degree (after deliberation) murder, conspiracy to commit first degree murder, and solicitation of another to commit first degree murder. We affirm.

Defendant's ex-wife was shot to death in the apartment defendant shared with his girlfriend. The girlfriend called 911, claiming to have shot the victim in self-defense. Police responding to the scene found only the girlfriend and the victim. The police determined, however, that the physical evidence at the scene was inconsistent with a claim of self-defense.

Investigating officers were aware that defendant had had an acrimonious relationship with the victim because of their divorce and disputes regarding custody of their children. About three hours after the shooting, defendant returned to the apartment. He was arrested after he showed no concern about who had been shot, and the police seized his clothes. He was released that same day.

Eighteen months later, defendant was charged with counts of first degree murder, conspiracy to commit first degree murder, and solicitation of another to commit first degree murder. He was convicted of those charges after a jury trial and sentenced to concurrent prison terms of life, twenty-five years, and twenty-five years.

I. Suppression of Evidence

Initially, defendant contends that the trial court erred in denying his motion to suppress evidence of gunshot residue on his clothing. According to defendant, his clothing was seized illegally because his arrest was not supported by probable cause. We disagree.

"Probable cause to arrest exists when, under the totality of the circumstances at the time of arrest, the objective facts and circumstances available to a reasonably cautious officer at the time of arrest justify the belief that (1) an offense has been or is being committed (2) by the person arrested." People v. King, 16 P.3d 807, 813 (Colo.2001).

The probable cause standard represents a necessary accommodation between the individual's right to liberty and the state's duty to enforce the law for the protection of society. People v. Rayford, 725 P.2d 1142, 1146 (Colo.1986). Accordingly, the quantum and quality of information necessary to support a finding of probable cause is significantly less than that required to prove an accused's guilt at trial. People v. Washington, 865 P.2d 145, 147 (Colo.1994).

Probable cause is measured in terms of "probabilities similar to the factual and practical questions of everyday life upon which reasonable and prudent persons act." People v. MacCallum, 925 P.2d 758, 762 (Colo.1996)(quoting People v. Thompson, 793 P.2d 1173, 1175 (Colo.1990)). It takes into account a police officer's experience and training in determining the significance of his or her observations, People v. King, supra, 16 P.3d at 813, and, because it turns on "common-sense conclusions about human behavior," People v. Polander, 41 P.3d 698, 702 (Colo.2001), it may be satisfied even where innocent explanations exist for conduct. See 2 W.R. LaFave, Search and Seizure § 3.2(e), at 70 (3d ed.1996)(probable cause exists if a "succession of superficially innocent events had proceeded to the point where a prudent man could say to himself that an innocent course of conduct was substantially less likely than a criminal one"). On appeal, while we defer to the trial court's findings of historical fact, we review de novo the issue whether the police had probable cause when they subjected a citizen to a warrantless arrest. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920 (1996)

; People v. Matheny, 46 P.3d 453, 461 (Colo.2002).

Here, the record reflects that the police knew the following facts when they arrested defendant: (1) the victim was killed in defendant's apartment, purportedly by defendant's girlfriend; (2) the physical evidence indicated that the victim was not shot in self-defense, but rather was shot several times while trying to escape to the far end of the apartment; (3) defendant's girlfriend displayed, in the officer's opinion, an unusually calm demeanor; (4) defendant had an acrimonious relationship with the victim, evidenced, in part, by the domestic violence and harassment calls to which the police had previously responded; (5) defendant had been seen with the girlfriend at the apartment on the afternoon of the shooting; (6) one witness observed, close in time to the shooting, defendant drive out of the apartment complex in a rush; (7) defendant and the victim had previously exchanged custody of their children in the lobby of the police station; (8) on at least two occasions, defendant had waited in the lobby for the victim to arrive, but on the evening of the shooting, defendant entered the police station at about 6:30 p.m. and requested verification that he had been waiting outside in the parking lot since 6 p.m.; (9) the victim had been shot around 6 p.m.; and (10) upon returning to the apartment, and after having been informed of a shooting in his apartment, defendant evidenced no concern for who (including his girlfriend) might have been shot.

Looking at the totality of the circumstances known to the police at the time of the arrest, we, like the trial court, conclude that the police had adequate grounds to reasonably believe that defendant was criminally responsible in some manner—as a conspirator, a complicitor, or even a principal—for the death of the victim. Because defendant's arrest was supported by probable cause, we have no reason to disturb the trial court's ruling.

Finally, inasmuch as they were not raised in the trial court, we decline to consider defendant's assertions that: (1) the trial court's probable cause determination was premised, in part, upon evidence obtained in violation of his constitutionally protected rights to remain silent and to the assistance of an attorney; and (2) because he was released from custody shortly after his arrest, the prosecution was judicially estopped from arguing that his arrest was based on probable cause. See People v. White, 64 P.3d 864 (Colo.App.2002)

(issues not raised in suppression hearing need not be addressed on appeal); People v. Bolton, 859 P.2d 311, 316 (Colo.App.1993)(declining to address judicial estoppel argument not raised in the trial court), overruled on other grounds by Close v. People, 48 P.3d 528 (Colo.2002).

II. Presentment to a Magistrate

Defendant contends that either his case should have been dismissed or evidence should have been suppressed, because he was not brought before a magistrate or judge to receive his Crim. P. 5 advisements until eighteen months after his arrest. We are not persuaded.

Crim. P. 5(a)(1) & (2) require that a person arrested for a felony be taken without unnecessary delay before the nearest available county or district court to be informed of, among other things, the nature of the charges filed against him or her and certain basic rights, such as the right to bail. The purpose of the rule, however, is "to furnish a prophylaxis against abuses in the detention process." People v. Heintze, 200 Colo. 248, 252, 614 P.2d 367, 371 (1980)

(emphasis added); see People v. Vigoa, 841 P.2d 311, 317 (Colo.1992); see also People v. Roybal, 55 P.3d 144 (Colo.App.2001).

Because defendant was released from custody the same day he was arrested, he was no longer "in the detention process" or otherwise subject to the potential abuses the rule addresses. The right to bail, for example, was inapposite because he was no longer in custody. Similarly, because no charges had been filed before he was released, defendant could not be informed of them, no plea could be entered, and defendant's statutory speedy trial rights were not implicated.

Finally, to the extent that defendant complains about the lack of assistance of counsel during those eighteen months, we note that the state did nothing during that time to interfere with defendant's ability to obtain counsel on his own.

For these reasons, we conclude that neither dismissal of charges nor suppression of evidence is warranted.

III. Defendant's Reaction to News of the Shooting

Defendant contends that the trial court erred in permitting an officer to express his opinion regarding defendant's credibility on a specific occasion. According to defendant, the officer improperly testified that defendant reacted to news of the shooting in a way that was "strange" and "different than [what the officer was] used to." We are not persuaded.

At trial, defendant objected to the officer's testimony only on grounds of general relevancy. Because he did not object upon the grounds he raises now, we review the trial court's ruling only for plain error. See People v. Kruse, 839 P.2d 1, 3 (Colo.1992)

.

"Plain error has been defined as an error that is obvious, substantial, and grave, seriously affecting the substantial rights of the accused." Moore v. People, 925 P.2d 264, 268-69 (Colo.1996)(footnote omitted). Ordinarily, plain error exists when, after a review of the entire record, an appellate court concludes with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. See Moore v. People, supra.

Here, we discern no error, much less plain error, because the witness did no more than produce evidence tending to make defendant's guilt more likely, and innocence less likely, than it...