People v. Tafoya, 82CA0376

Decision Date25 April 1985
Docket NumberNo. 82CA0376,82CA0376
Citation703 P.2d 663
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eugene Aloys TAFOYA, Defendant-Appellant. . III
CourtColorado Court of Appeals

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Robert M. Petrusak, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Martin J. Gerra, III, Deputy State Public Defender, Denver, for defendant-appellant.

METZGER, Judge.

Defendant, Eugene Aloys Tafoya, appeals from the judgment of conviction entered upon a jury verdict finding him guilty of third degree assault and conspiracy to commit third degree assault. We affirm.

On October 14, 1980, Faisal Zagallai, a Libyan student at Colorado State University, was shot twice by defendant, who was posing as a representative of a large computer company. Defendant was not connected to the crime until the F.B.I. identified a gun found in an irrigation ditch on February 8, 1981, as belonging to the defendant. The F.B.I. informed Fort Collins Police Department detective Martinez on April 10, 1981, of the link. After further investigation, including Zagallai's identification of defendant after a photographic line-up, detective Martinez obtained an arrest warrant and a warrant to search defendant's residence. Both of these warrants were executed on April 22, 1981.

On September 29, 1981, after his incarceration and retention of counsel, defendant requested to speak with detective Martinez. After signing a written waiver of his Miranda rights, defendant discussed his bond, the possibility of his testifying before a U.S. Senate committee investigating terrorism, and facts pertaining to the state's case against him.

Defendant's trial was accompanied by extensive local and national publicity centering on his claimed connections with the C.I.A. and the government of Libya. During the trial the press reported rumors of the possibility of Libyan "hit squads" attacking high-ranking American politicians. In response to this publicity and to the rumors of possible violence against defendant, extraordinary security measures were ordered, and the trial court instructed the jurors, who were not sequestered, to avoid news releases.

I.

Defendant first asserts that the trial court erred in denying his motion to suppress evidence seized in the search of his home, arguing that the affidavit in support of the search warrant was based on stale information and did not set forth sufficient facts to support the belief that the evidence of criminal activity was located on the premises to be searched. We disagree.

The passage of time between the commission of a crime and a search warrant application is not the sole criterion to be applied in considering the staleness of a search. Rather, the court must consider the elapsed time between the date the police had probable cause to secure a warrant and the date the warrant was issued. People v. Thrower, 670 P.2d 1251 (Colo.App.1983).

The police did not identify defendant as a suspect until April 10, 1981. The search warrant was executed on April 22 1981. Thus, only twelve days had elapsed between defendant's connection with the shooting and the execution of the search warrant. Because of the proximity between these two events, we conclude that the search warrant was not based on stale information. See People v. Cullen, 695 P.2d 750 (Colo.App.1984).

II.

Defendant next contends that his right to counsel was infringed upon when he made statements to the police during his incarceration and after retention of counsel. We disagree.

The general rule is that statements will be admitted after retention of counsel where (1) the accused initiates the conversation; (2) there is a valid waiver of the right to counsel and the right to remain silent, and (3) the defendant's statements were voluntary. See People v. Pierson, 670 P.2d 770 (Colo.1983).

Here, defendant initiated the conversations to discuss the amount of his bond and the possibility of his testifying before a U.S. Senate committee investigating terrorism. Both of these topics were significantly linked to the issues in his own case. Further, the record supports the trial court's findings that defendant's waiver of his rights and his subsequent statements were voluntary. See People v. Thorpe, 641 P.2d 935 (Colo.1982).

III.

Defendant further argues that the trial court erred in refusing to grant a change of venue because of excessive publicity.

A defendant, in order to prevail on this argument, must show that the publicity was so "massive, pervasive, and prejudicial" as to create a presumption of an unfair trial, or alternatively, that the publicity created actual hostility on the part of the jurors. People v. Bartowsheski, 661 P.2d 235 (Colo.1983).

Defendant has failed to meet this burden. The record shows that the trial court allowed extensive in camera voir dire and gave cautionary remarks to the jury concerning avoidance of publicity. Moreover, defendant failed to exhaust his preemptory challenges. Therefore, we find no abuse of discretion by the trial court in denying defendant's motion for change of venue. People v. Simmons, 183 Colo. 253, 516 P.2d 117 (1973).

IV.

Defendant next contends that the "armed camp" atmosphere of his trial robbed him of the presumption of innocence.

A defendant has the right to be free from excessive guards except where special circumstances dictate the use of enhanced security measures. Dorman v. U.S., 140 U.S.App.D.C. 313, 435 F.2d 385 (D.C.Cir.1970). The determination whether such special circumstances exist is within the trial court's discretion. People v. Dillon, 655 P.2d 841 (Colo.1982).

Here, threats upon the defendant's life and the...

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