People v. Terry

• Decision Date: 21 July 1975
• Docket Number: No. 26114,26114
• Citation: 189 Colo. 177,538 P.2d 466
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Howard Lincoln TERRY, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 466

538 P.2d 466

189 Colo. 177

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Howard Lincoln TERRY, Defendant-Appellee.

No. 26114.

Supreme Court of Colorado, En Banc.

July 21, 1975.

J. E. Losavio, Jr., Dist. Atty., Donald M. Hoerl, Cecil L. Turner, Asst. Dist. Attys., Pueblo, for plaintiff-appellant.

Bollinger, Flick & Young, Tuck Young, Pueblo, for defendant-appellee.

GROVES, Justice.

The defendant Howard Lincoln Terry, also known as Dr. H. L. Terry, was charged with feloniously making and uttering a false and forged prescription for Isonipecaine (Demerol), and with making false statements in the prescription. At the close of the People's case, the judge granted the defendant's motion for acquittal. This appeal by the People is (1) from the court's ruling that a certain prescription and certain testimony concerning the same were inadmissible in evidence because they were the 'fruit of the poisonous tree' (the poisonous tree being an admittedly invalid search warrant); and (2) from the court's order denying the district attorney time within which to take an interlocutory appeal to this court. We approve of the rulings.

According to an offer of proof of the prosecutor the following incidents transpired on July 17, 1972: A woman, known to the pharmacist as Marlies Ragulsky, entered the Economy Drug Store in Pueblo. She presented a prescription on a form bearing the name of H. L. Terry, M.D. and purportedly signed by him, dated July 16, 1972, for Demerol tablets for Joyce Cook. The pharmacist attempted to detain her until he could call Dr. Terry, but she demanded a return of the prescription. He returned it to her after making a photographic copy, which photographic copy was tendered in evidence and is a part of the record.

As a result of the foregoing, the authorities sought to prosecute Marlies Ragulsky, and we gather from the record that a charge was made against her.

Captain Hurley of the Pueblo Police Department testified that he called on Dr. Terry on July 18, 1972, in connection with the investigation concerning the Ragulsky case; that Dr. Terry told him that he had no patient by the name of Joyce Cook; that he had not written any prescription on July 16, 1972; and that specifically on that day he had not written one for Demerol for Joyce Cook.

The present district attorney was first sworn into office on January 9, 1973. Prior to January 4, 1973 he had engaged as deputy or as investigators Jane Freeman, Joseph A. Koncilja and Rodney Cozzetto. All three testified at the hearing on defendant's motion to suppress. The two men testified In camera as an offer of proof at the trial. On January 4, 1973, in preparation for the Ragulsky case, these three called on Dr. Terry. They all testified that Dr. Terry showed them a copy of a prescription dated July 16, 1972, prepared for Joyce Cook and signed by Dr. Terry. They testified that it appeared to be identical to the copy made by the pharmacist at the Economy Drug Store.

The three immediately made a report to Captain Hurley, who in turn executed an affidavit upon which a search warrant issued for seizure of the copy of the prescription in Dr. Terry's office. The copy in Dr. Terry's possession was seized under the warrant the same day. As already mentioned, the affidavit was insufficient to support the warrant, and the warrant admittedly was invalid.

On the back of the copy seized was the notation 'Grove--W. 4th'. This led the law enforcement people to conclude that the Grove Drug Store at 726 East 4th Street probably was involved. The next day they went to this drug store and found that the original of the prescription had been filled there on July 19, 1972. The defendant was charged as above set forth.

The defendant filed motions to suppress, among other things, the carbon copy of the prescription seized under the search warrant and all other evidence derived from information gained during the search and seizure under the warrant. The court ruled that the affidavit upon which the warrant was predicated was fatally defective and that the copy of the prescription seized at Dr. Terry's office be suppressed.

The motions to suppress and the court's order did not relate to the original of the prescription located at the Grove Drug Store. On the day of trial the prosecutor asked that the court clarify the extent of the earlier suppression order, and he asked for a hearing in this respect. He stated:

'Now, there was certain evidence seized after the prescription was taken And without indicating at this point what that evidence was, we feel that although the prescription could well have led to the seizure of that property, that it did not, and that there was an independent source for discovery of those items; and at one point there was--they were in the process of seizing that evidence.' (Emphasis added)

The prosecutor stated that, if upon a hearing the ruling were adverse to the People, he would seek an interlocutory appeal. The court declined to hold a hearing and ordered that the admissibility of any evidence not already suppressed would be determined when the evidence would be offered at trial.

I

Thirty-six days elapsed from the time the court ordered the evidence suppressed and the day of trial. For the prosecutor on the day of trial to request a hearing upon the admissibility of evidence, but state that he was not disclosing what the evidence was, is simply unthinkable and preposterous. Other reasons occur to us as to why it was not error to hold a hearing in order that, upon an adverse ruling,...