People v. Thomas, 26198

• Decision Date: 17 November 1975
• Docket Number: No. 26198,26198
• Citation: 189 Colo. 490,542 P.2d 387
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Henry THOMAS, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 387

542 P.2d 387

189 Colo. 490

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Henry THOMAS, Defendant-Appellant.

No. 26198.

Supreme Court of Colorado, En Banc.

Nov. 17, 1975.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Gregory L. Williams, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Daniel B. Mohler, Colorado Springs, for defendant-appellant.

HODGES, Justice.

Defendant Thomas was convicted of first-degree burglary under 1971 Perm.Supp., C.R.S.1963, 40--4--202 ¹ and as a habitual criminal. He was sentenced according to the Habitual Criminal Statute, Colo.Sess.Laws 1972, ch. 44, 39--13--101 at 253. ² The trial court denied his motion to suppress evidence found during an inventory search of his car. The trial court also denied his post-conviction motion to quash the habitual criminal charge, which motion alleged, that the habitual criminal statute is unconstitutional. On this appeal, the defendant asserts that these rulings are erroneous and therefore the judgment of conviction should be reversed. We find no merit to the defendant's contentions and therefore affirm the judgment.

I.

Jewelry, watches and other items were taken during the night from a store in Cripple Creek, Colorado. During the early morning hours of the following day, police officers in nearby Woodland Park, Colorado, responded to a silent burglar alarm at the Woodland Park Pharmacy. Upon their arrival, they observed a car parked near a side door of the store and noted two sets of footprints in the snow leading to the front door. One officer went to a side door of the pharmacy where he heard a male voice inside saying that 'they' had to hurry up and get out in case there was an alarm. Meanwhile, another officer observed that the glass in the front door had been smashed and from that location, he saw the defendant and a female companion removing drugs from the shelves in the back of the pharmacy. He ordered them to raise their hands and to walk to the front of the store. After hurriedly consuming some of the drugs, they complied and were immediately placed under arrest.

A search of the defendant revealed that he was armed with two guns and his companion was also in possession of a gun. At this time, the defendant volunteered that he broke into the store because he needed the drugs. The officers testified that defendant appeared to be behaving normally at this time, but that he later became very ill and was taken to the hospital.

A pry bar and several suitcases, containing only drugs taken from the shelves, were found inside the pharmacy.

After the defendant and his companion were jailed, his car was impounded and taken to the police station. Later that morning, an inventory search was conducted pursuant to established police department procedures. This search produced several items of jewelry which were linked to the burglary at the Cripple Creek store, a pair of plastic gloves, a flashlight, six boxes of ammunition, pliers, wirecutters, clothing, and other miscellaneous articles.

The defendant was charged in several counts with burglary of the Woodland Park Pharmacy, burglary and felony theft stemming from the Cripple Creek break-in, and being a habitual criminal. It was alleged that he had previously been convicted of burglary and aggravated robbery.

At trial, the defendant testified that he was a heroin addict and that he broke the front glass door and entered the Woodland Park Pharmacy to 'get drugs,' because he and his companion were suffering from withdrawal. He denied any participation in the burglary of the store in Cripple Creek.

With reference to the jewelry items which were taken in the Cripple Creek burglary and found in his car, the defendant testified that a friend had given these items to him to exchange for drugs.

The jury found the defendant guilty of the Woodland Park Pharmacy burglary and acquitted him of the two counts relating to the Cripple Creek burglary. The jury also found that he had two prior felony convictions, whereupon, the court imposed an enhanced sentence under the Habitual Criminal Statute.

II.

Defendant Thomas challenges the constitutionality of the search of his car and the use of evidence obtained as a result of the search at his trial. However, we hold that the issue of constitutionality of the search is now moot because the fruits of the search were used primarily to prove that the defendant was guilty of the burglary and theft at the Cripple Creek store, on which charges he was acquitted.

The defendant argues further, however, that the evidence in the car prejudiced his case in regard to the question of his ability to form the specific intent necessary to commit the burglary at the Woodland Park Pharmacy. However, in reply to this argument, we note that he was caught by the police inside the pharmacy while armed and while taking drugs off the shelves. A crowbar and suitcases were found inside the pharmacy. During his arrest, he told the police that 'he did it for the drugs.' He even admitted during cross-examination that he 'broke into the pharmacy' to get drugs. These facts and this evidence amply support a jury finding that Thomas had the requisite specific intent to commit first-degree burglary.

Therefore, even assuming that the trial court committed error by not suppressing the inventoried items, we hold that this could not have materially and substantially prejudiced him since there was an overwhelming amount of competent evidence apart from this disputed evidence to support his conviction. Thomas did not meet his burden of disclosing and establishing prejudicial error; the mere possibility of prejudice is insufficient to warrant reaching the merits of the constitutionality of the inventory search. See e.g., People v. Jones, 184 Colo. 96, 518 P.2d 819 (1974); Gould v. People, 167 Colo. 113, 445 P.2d 580 (1968); Segura v. People, 159 Colo. 371, 412 P.2d 227 (1966). To constitute reversible error, the questionable evidence must have had a substantial influence on the verdict. People v. Hanson, Colo., 537 P.2d 739 (1975).

III.

The defendant also argues that the Habitual Criminal Statute is unconstitutional in its application because its rare use and severity of punishment renders it a denial of equal protection of the laws, due process of law, and freedom from cruel and unusual punishment. To support his contention, he appends to his brief, a statistical study ³ prepared at the Colorado State Penitentiary which shows that only thirty persons were actually sentenced under the Habitual Criminal Statute in the last twenty years out of a potential group of $3,220 inmates sentenced to the penitentiary with three or more prior felony convictions. We find this argument without merit.

Both the United States Supreme Court and the Colorado Supreme Court have ruled unequivocably that habitual criminal statutes are constitutional despite contentions that they violate constitutional strictures dealing with double jeopardy, Ex post facto laws, cruel and unusual punishments, due process, equal protection, and privileges and immunities. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1964); Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Bernard v. Tinsley, 144 Colo. 244, 355 P.2d 1098 (1960); Vigil v. People, 137 Colo. 161, 322 P.2d 320 (1958).

In Oyler, the court was faced with the identical equal protection issue raised here by the defendant. The petitioner there also appended statistical data based on prison records to support his allegation that he was denied his constitutional rights since the Habitual Criminal Statute was imposed so rarely. The court first questioned in the following statement the probative value of such data to prove arbitrary enforcement:

'We note that it is not stated whether the failure to proceed against other three-time offenders was due to lack of knowledge of the prior offenses on the part of the prosecutors or was the result of a deliberate policy of proceeding only in a certain class of cases or against specific persons. The statistics merely show that according to penitentiary records a high percentage of those subject to the law have not been proceeded against. There is no indication that these records of previous convictions, which may not have been compiled until...