People v. Salyer

• Decision Date: 13 February 2003
• Docket Number: No. 01CA0311.,01CA0311.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert C. SALYER, Defendant-Appellant.
• Court: Colorado Court of Appeals

80 P.3d 831

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert C. SALYER, Defendant-Appellant.

No. 01CA0311.

Colorado Court of Appeals, Div. IV.

February 13, 2003.

Rehearing Denied April 24, 2003.

Certiorari Denied December 1, 2003.¹

Ken Salazar, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Nancy J. Lichtenstein, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Robert C. Salyer, appeals the judgment of conviction entered upon a jury verdict finding him guilty of possessing marijuana with the intent to distribute it, a class four felony. We affirm.

Defendant was eighteen years, nine months of age when, on February 14, 2000, two high school students were murdered at a store where he had been earlier that evening and at where he had previously worked. The next day, defendant was interviewed by law enforcement authorities, who suspected that the murders were drug related. During the interview, defendant admitted that he had sold marijuana for the past six months at the store. However, he said that after hearing about the murders, he removed a half pound of marijuana and a scale from his truck and "stashed" them in a field near an elementary school. He led the sheriff's officers to those items, telling them that because of the murders, he no longer planned to sell marijuana.

Defendant was interviewed again three days later by the sheriff's officers. He was subsequently arrested after refusing to participate in an undercover drug operation and alerting his source of drugs about the direction of the homicide investigation.

At trial, defendant argued that, although he possessed the half pound of marijuana, he did not intend to sell it and that it would, in any event, be unfair to convict him after he had been led to believe that, because of his cooperation in the homicide investigation, he would not be prosecuted for drug offenses.

The jury found defendant guilty of both possessing marijuana and possessing marijuana with the intent to distribute it. The trial court merged the verdicts and sentenced him to eighteen months probation on the greater crime.

I. Information

Initially, defendant contends that the information was insufficient to invoke the jurisdiction of the trial court. We disagree.

As pertinent here, to invoke the jurisdiction of the trial court, an information must: (1) contain information from which it can be understood that the offense was committed within the jurisdiction of the court or is triable therein; and (2) provide adequate notice of the charge, as well as the factual circumstances surrounding the offense, so that the defendant can adequately defend himself or herself and the trial court can pronounce judgment upon a conviction. See § 16-5-202(1)(c), (d), C.R.S.2002; People v. Williams, 984 P.2d 56, 60 (Colo.1999).

Relying on Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958), overruled in part on other grounds by County Court v. Ruth, 194 Colo. 352, 575 P.2d 1 (1977), defendant argues that the information was jurisdictionally defective because it encompassed a period when he was a juvenile. Defendant asserts that as in I.R. v. People, 171 Colo. 54, 56, 464 P.2d 296, 297 (1970), the juvenile court has exclusive jurisdiction. We are not persuaded.

In Bustamante, the defendant was charged with committing a crime between two specific dates, one of which was beyond the applicable statute of limitations for the crime charged. The supreme court concluded that where the charging document "avers two dates, one of which is so remote as to be barred by the statute of limitations, it is defective" and beyond the jurisdiction of the court. Bustamante v. District Court, supra, 138 Colo. at 105, 329 P.2d at 1017.

Here, the information does not reference two dates, one of which would necessarily be beyond the jurisdiction of the trial court. Instead, it references but one date, February 14, 2000. Because that date fell nine months after defendant became an adult, and because the allegation stated "on and before" that date, we conclude that the information was sufficient to invoke the trial court's jurisdiction over criminal cases. See Colo. Const. art. VI, § 9 (district courts have original jurisdiction in criminal cases, except as provided by law); § 19-2-104(7), C.R.S.2002 (juvenile court lacks jurisdiction "over a person for any offense committed after the person attains the age of eighteen years").

Defendant also argues that the time allegation in the information was not sufficient to provide him with adequate notice of the charged offense. We disagree.

Ordinarily, an information need only answer the questions of "who, what, where, and how." See People v. Steiner, 640 P.2d 250, 252 (Colo.App.1981); cf. People v. Tucker, 631 P.2d 162, 163 (Colo.1981)(indictment). The prosecution is not required to specify the precise date of an alleged offense unless that date is a material element of the offense. See Roelker v. People, 804 P.2d 1336, 1340 (Colo.1991); see also Marn v. People, 175 Colo. 242, 247-48, 486 P.2d 424, 427 (1971).

Because a specific date is not an element of the crime of possessing marijuana with intent to distribute it, see § 18-18-406(8)(b)(I), C.R.S.2002, here any indefiniteness regarding time was a matter of form, which did not deprive the court of jurisdiction and would not warrant reversal absent substantial prejudice to the defendant. See People v. Williams, supra, 984 P.2d at 63-65.

We discern no such prejudice in this case. Defendant neither complained in the trial court of an insufficiency in the information nor requested a bill of particulars, for good reason: the "on and before February 14, 2000" allegation was sufficient to apprise him that the charge related only to the marijuana recovered by sheriff's officers on February 15, 2000. His claim of surprise, raised for the first time on appeal, based on an alleged inability to defend against charges of prior acts, is unavailing: those acts were not the basis of the charge, and the record does not reflect that he was unprepared for or surprised by evidence of the prior acts.

Defendant's reliance on People v. Thimmes, 643 P.2d 780 (Colo.App.1981), is misplaced. In Thimmes, the division concluded that the indictment was fatally deficient because it failed to allege "any date upon which the alleged offense was committed." See People v. Thimmes, supra, 643 P.2d at 782 (emphasis added). Here, in contrast, an actual date was alleged, namely "on and before February 14, 2000."

Thus, we conclude the information was sufficient.

II. Voluntary Statements

Defendant contends that the trial court erroneously admitted statements that the sheriff's officers had involuntarily extracted from him by: (a) deliberately exploiting his emotional vulnerability over the deaths of friends; and (b) assuring him, near the beginning of his February 15, 2000, interview, that they were interested in solving a murder and not in his drug activity. We find no basis for reversal.

In the trial court, defendant grounded his motion to suppress only on evidence and argument concerning sheriff's officers' statements made to him and his father following the conclusion of the interview and the recovery of the marijuana. During the suppression hearing, he never asserted that psychological intimidation or earlier assurances by the authorities rendered his statements involuntary.

Inasmuch as the grounds upon which defendant now relies for relief were not raised in the trial court, we decline to consider them. See People v. White, 2002 WL 1339115, 64 P.3d 864, 869 (Colo.App. No. 99CA2415, June 20, 2002)(issues not raised in fourth amendment suppression hearing need not be addressed on appeal).

III. Videotape Evidence Procedures

Defendant contends that reversal is required by certain irregularities surrounding the jury's viewing of his videotaped statements during the trial. According to defendant: (1) the court's comments to the jurors concerning the videotape evidence improperly diminished the dignity and seriousness of the trial and the role of the jury and also were made in the absence of defense counsel; and (2) the judge's absence during the playing of the videotapes was structural error. We are not persuaded that reversal is required.

A. Court's Comments

The trial court met with the jurors for a few minutes to discuss the procedure for viewing defendant's videotaped statements. From the record, it appears that this meeting was conducted without defense counsel being present.

At this meeting, the court informed the jurors that it would take longer than originally anticipated to view evidence of defendant's videotaped statements and that, instead of finishing the case as expected on that day, the jurors would spend most of the day watching videotapes on television. The court mentioned that, in contrast to the situation where live witness testimony was being presented, it would permit jurors to have candy, drinks, and lunch in the courtroom while the videotapes were played. The goal, the court said, was to make the jurors comfortable while watching the videotapes.

Read in context, the remark about watching television conveyed nothing more than appropriate information about the medium by which the videotape evidence would be presented; and the remarks about allowing candy, drinks, and lunch—or even the remark about renting a movie theater made in response to one juror's quip about getting couches—did not convey a sense that the jurors need not be attentive or that this evidence was less important than other evidence in the case. Rather, the court's remarks were an attempt to preserve the attentiveness of the jury by making them comfortable about the prospect of viewing videotape evidence over a prolonged time.

However, relying on Key v....