People v. Rosa

• Decision Date: 16 May 1996
• Docket Number: No. 94CA0599,94CA0599
• Citation: 928 P.2d 1365
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carl D. ROSA, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 1365

928 P.2d 1365

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carl D. ROSA, Defendant-Appellant.

No. 94CA0599.

Colorado Court of Appeals Div. III.

May 16, 1996.

Rehearing Denied June 27, 1996.

Certiorari Denied Dec. 16, 1996.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John J. Krause, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge ROY.

Defendant, Carl D. Rosa, appeals from a judgment of conviction entered on jury verdicts finding him guilty of theft, attempted theft, and criminal impersonation. We affirm and remand with instructions to correct the mittimus.

Defendant's convictions arose from the theft of a ring from a Colorado Springs jeweler and the attempted theft of a ring from another Colorado Springs jeweler.

On April 1, 1992, defendant purchased a cubic zirconia ring that met his detailed specifications, paying $200 for it.

On April 2, 1992, a man switched a cubic zirconia ring with a similar appearing diamond ring that had a list price of $15,000. Following discovery of the switch, the store manager alerted a nearby jewelry store that a person matching defendant's description might be switching rings.

On May 3, 1992, a man and woman entered the second store ostensibly looking for a large engagement ring. A sales clerk testified that the man acted suspiciously while he held a one carat diamond ring. When the man returned the ring to the clerk, the clerk examined it and concluded that it was not the same ring she had handed him. When the clerk accused the man of switching rings, the man demanded to see the diamond ring again. When he returned the ring a second time, it was the original one carat diamond ring.

The manager at the first store and the clerk at the second store later identified defendant through a photographic array as the person involved in the theft and attempted theft.

Defendant, a senior airman at Cheyenne Mountain Air Force Base, was charged, inter alia, with one count of theft over $10,000, one count of attempted theft over $10,000, and one count of criminal impersonation. After he was charged, he was denied access to the air force base.

After a period of several months, defendant's belongings were removed from his desk and work station and stored in a box to make room for another person. One of his supervisors, while looking for a document amongst defendant's belongings, later discovered a notebook belonging to defendant which listed the address of a jeweler, a drawing of a price tag for a diamond ring, and the name of a clerk at the jewelry store where the first theft occurred. The supervisor showed the notebook to an officer investigating the matter for the Air Force who, in turn, delivered the notebook to the Colorado Springs investigating officers.

Defendant moved unsuccessfully to suppress the notebook. The trial court held that defendant had no reasonable expectation of privacy in the area where the supervisor discovered the notebook and that the supervisor was acting as a private person and not at the behest of law enforcement officials.

Defendant also moved to sever the counts and hold separate trials on the theft charge related to the first store and the attempted theft and criminal impersonation charges related to the second store. The court also denied this motion.

I.

Defendant first contends that the trial court erred in not suppressing the notebook found at the air force base. We disagree with defendant's contention.

A defendant must demonstrate a legitimate expectation of privacy in the area searched to have standing to challenge the constitutionality of that search. People v. Juarez, 770 P.2d 1286 (Colo.1989). In addition, the court must determine whether the defendant's subjective expectation of privacy is one that society would recognize as reasonable. Hoffman v. People, 780 P.2d 471 (Colo.1989).

Generally, government employees, including those in the military, have reasonable expectations of privacy in their offices and workplaces. O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987); United States v. Battles, 25 M.J. 58 (C.M.A.1987); see also City & County of Denver v. Casados, 862 P.2d 908 (Colo.1993), cert. denied, 511 U.S. 1005, 114 S.Ct. 1372, 128 L.Ed.2d 48 (1994). However, that expectation of privacy may be limited:

Public employees' expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation.... [I]n many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits. Simply put, it is the nature of government offices that others--such as fellow employees, supervisors, consensual visitors, and the general public--may have frequent access to an individual's office.... [S]ome government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable.

O'Connor v. Ortega, supra, 480 U.S. at 717-18, 107 S.Ct. at 1497-98, 94 L.Ed.2d at 723.

Here, we agree with the trial court's determination that defendant had no reasonable expectation of privacy in the area where the supervisor found the notebook. The supervisor, who was the only witness at the suppression hearing, testified that defendant worked in an open area where desks were next to each other. Personnel had access to other people's work areas. Each person was given a separate lock and key for his or her desk, but would commonly give the key to another person in case he or she was to be absent for an extended time. The supervisor also testified that people in the building and on the base were subject to search at all times.

After defendant had been denied access to the air force base, his work area was reassigned, and his belongings were stored and locked in a storage area. The supervisor testified that he removed the notebook from storage when he was looking for information on social activities that defendant had helped organize. While looking through the notebook, he found the address of a jeweler, a drawing of a price tag for a diamond ring, and a store clerk's name.

Under these circumstances, we conclude, as did the trial court, that defendant had no reasonable expectation of privacy. In addition, under military law, persons in the area were subject to search. See United States v. Muniz, 23 M.J. 201 (C.M.A.1987) (desk under military command subject to search at a moment's notice). Therefore, the trial court did not err in declining to suppress the notebook as evidence.

Having determined that defendant had no reasonable expectation of privacy in the area searched, we need not address his other contention that the supervisor acted at the behest of police.

II.

Defendant next argues that the court committed reversible error when it told him that he would be subject to cross-examination on other issues if he testified at the suppression hearing. We conclude that any error was harmless as a matter of law.

Here, before defendant was to testify at the suppression hearing, the following exchange occurred between the court and defendant.

Q: Now, also if you testify in this proceeding, you're testifying under oath. That's called former testimony when you come to trial if you decide to testify at trial, do you understand that? In other words, you'll have prior testimony under oath by the time you decide to take the stand in the trial if you want to, this will become former testimony, this hearing here today?

A: Yes, sir.

Q: What that means is that if you take the stand--

A: Yes, sir.

Q: If you take the stand and you testify differently in the trial than you did today, then the testimony given here today can be used against you to impeach your credibility?

A: Yes, sir.

Q: If you take the stand in this hearing and, say, for purposes of trying to get the evidence suppressed, 'Yes, I did write this,' and then at trial you were to say, 'No, I didn't write it' or this wasn't your notebook, then the District Attorney could use the fact that you testified in this trial to impeach your credibility and argue that you testified falsely at a previous court proceeding or in the middle of the trial, do you understand that?

A: Yes, sir.

....

[The court]: It's your right to testify or not to testify. I want to make sure you understand that if you come up here and testify in this hearing in order to try to get this notebook suppressed, that you wrote it, this is your writing in here, then if you take the stand during the trial and say it's not your writing, then [the prosecution] will be able to use this testimony here today in the suppression hearing and bring it in front of the jury and say, 'Isn't it a fact that you told this Judge in another hearing that you did write this document under oath?'

[Defendant]: I totally understand.

....

[Defense counsel]: If [defendant] did take the stand, it would be pursuant to 104(d), Colorado Rules of Evidence where the defendant would not be allowed to be cross-examined as to matters outside of the specific issue involved here with suppression.

[The court]: From the court's perspective this is not a rule on a forematter [sic], this is a suppression hearing, so he would be subject to cross-examination just as any other witness.

A defendant must be able to invoke his Fourth Amendment rights at a suppression hearing without surrendering his Fifth Amendment right not to incriminate himself. Therefore, a defendant's suppression hearing testimony cannot be used against him at trial on the issue of his guilt or innocence. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968...