People v. Thrower, 81CA1078

Decision Date10 February 1983
Docket NumberNo. 81CA1078,81CA1078
Citation670 P.2d 1251
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert McKinley THROWER, Defendant-Appellant. . III
CourtColorado Court of Appeals

R. Dale Tooley, Dist. Atty., Brooke Wunnicke, Deputy Dist. Atty., for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Jody Sorenson Theis, Deputy State Public Defender, for defendant-appellant.

BERMAN, Judge.

Defendant here appeals his conviction of first degree murder. We affirm the judgment of conviction, but remand for correction of the mittimus and resentencing.

According to the record, a man entered a market on August 8, 1980, carrying a brown grocery bag. He purchased two ice cream sandwiches. As the man reached into his pocket for money, the bag shifted and the store owner was able to see the butt of a gun within the bag.

The owner sent one of his employees after the man to try to get his license number. When the employee did not return fifteen minutes later, the owner called the police. The employee was found in his car, mortally wounded with a gunshot wound to the head. Detectives identified the bullet as being approximately 38 caliber.

A number of people in the neighborhood witnessed either the shooting or the gunman's flight on foot and were able to describe the assailant and his clothing. An investigation was commenced but no arrests were made at that time. The afternoon of the shooting, defendant was arrested for auto theft, and was held in county jail until late September 1980.

On October 3, fingerprints taken from an ice cream wrapper which the owner saw the assailant discard moments after he left the store and which had been preserved as evidence were, for the first time, positively identified as those of defendant. A search warrant was issued on October 4 for the defendant's home for any handgun of approximate 38 caliber, bullets or spent shells of that same caliber, and for a black T-shirt seen worn by the assailant on the day of the shooting. The search recovered the black T-shirt in defendant's room. A warrant for defendant's arrest was then issued.

Defendant was convicted of first degree murder. He now appeals his conviction, claiming that the search warrant was "stale," and that certain items of evidence were improperly admitted. We affirm.


Defendant first claims that because of the lapse of nearly two months between the shooting on August 8, 1980, and the issuance of the search warrant on October 4, 1980, and because of incorrect information in the warrant, there was no probable cause to support the issuance of that warrant. We disagree.

A search warrant may properly issue only upon a written affidavit establishing probable cause for the belief that the items are, or will be, located on the premises to be searched. Section 16-3-303(1)(d), C.R.S.1973 (1978 Repl.Vol. 8). Here, the police did not consider that they had sufficient evidence establishing probable cause to obtain a search warrant until on October 3 when the fingerprints taken from the ice cream wrapper were confirmed to be those of the defendant. The warrant was issued on October 4. Thus, the warrant was not predicated on "stale information" as defendant asserts.

People v. Erthal, 38 Colo.App. 245, 556 P.2d 1228 (1976), aff'd, 194 Colo. 147, 570 P.2d 534 (1977), cited by defendant, is distinguishable. In Erthal, probable cause existed months before the warrant was issued.

Defendant also claims that the warrant was invalid because it erroneously stated that the defendant had been continuously in jail since August 8, 1980, when, in fact, he had been released in late September. However, the trial court correctly struck the erroneous information, holding that the affidavit contained other sufficient facts to support a finding of probable cause. See People v. Dailey, 639 P.2d 1068 (Colo.1982); People v. White, 632 P.2d 609 (Colo.App.1981).


Defendant also claims that admission of his driver's license as photo identification was irrelevant and prejudicial. Because defendant gives no explanation of why he believes the admission of...

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8 cases
  • Banks v. People, 82SC375
    • United States
    • Colorado Supreme Court
    • February 19, 1985
    ...and palmprints at scene of homicide was sufficient to establish probable cause at preliminary hearing); see also People v. Thrower, 670 P.2d 1251 (Colo.App.1983) (where man with a brown paper sack entered a grocery store and purchased two ice cream sandwiches and the store owner, after noti......
  • People v. Wickham, No. 99CA2087.
    • United States
    • Colorado Court of Appeals
    • November 23, 2001
    ...stolen items on the premises and the issuance of the warrant. While those cases offer guidance, we are more persuaded by People v. Thrower, 670 P.2d 1251 (Colo.App.1983). There, the police investigated a murder and obtained a warrant to search the defendant's home for a handgun, bullets, bu......
  • People v. Salazar, 83CA1066
    • United States
    • Colorado Court of Appeals
    • September 12, 1985
    ...the alleged crime and the execution, the information was not stale. People v. Tafoya, 703 P.2d 663 (Colo.App.1985); People v. Thrower, 670 P.2d 1251 (Colo.App.1983). D. Defendant next contends that the warrant authorized an "exploratory" search because there was probable cause to search onl......
  • The People Of The State Of Colo. v. Mapps, No. 06CA1591.
    • United States
    • Colorado Court of Appeals
    • October 8, 2009
    ...offense and the execution of a warrant, while a consideration, is not determinative of the staleness of information. See People v. Thrower, 670 P.2d 1251 (Colo.App.1983) (holding that a two-month lapse between the crime and the issuance of a search warrant did not render the information sta......
  • Request a trial to view additional results
1 books & journal articles
    • United States
    • Colorado Bar Association Colorado Rules and C.R.S. of Evidence Annotated (CBA)
    • Invalid date
    ...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); People v. Tafoya, 703 P.2d 663 (Colo. App. 1985). Expiration of previous warrant's 90-day period for completing a forensic......

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