People v. Watson

• Decision Date: 10 March 1983
• Docket Number: No. 81CA1105,81CA1105
• Citation: 668 P.2d 965
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles S. WATSON, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 965

668 P.2d 965

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles S. WATSON, Defendant-Appellant.

No. 81CA1105.

Colorado Court of Appeals Div. II.

March 10, 1983.

Rehearing Denied April 7, 1983.

Certiorari Denied July 11, 1983.

Nolan L. Brown, Dist. Atty., Joseph Mackey, Deputy Dist. Atty., Golden, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Charles F. Kaiser, Deputy State Public Defender, Denver, for defendant-appellant.

SMITH, Judge.

Charles Watson appeals his conviction by a jury of first degree burglary, aggravated robbery, a crime of violence, and first degree motor vehicle theft. We affirm.

In February of 1981, a search warrant was issued for a search of Watson's residence. Based upon the sworn affidavit of Wheat Ridge Police Detective N.L. Forristall, both the affidavit and warrant originally listed the address to be searched as 1213 Oak Street, Lakewood, Colorado. However, this apparently was a typographical error, and, at the time the warrant was issued, the issuing judge personally amended the warrant and affidavit by interlineation, changing the address to 1312 Oak Street, and Detective Forristall gave his oath as to the amended affidavit.

Items seized in execution of the warrant at the designated address led to Watson's arrest and prosecution, and Watson's request to suppress the seized evidence was denied.

At trial, Watson objected unsuccessfully to certain offered testimony as hearsay, and the trial court also rejected his challenge to an instruction which allowed the jury to infer his guilt from his unexplained possession of a recently stolen car.

I.

On appeal, Watson first contends that the trial court erred in denying his motion to suppress evidence seized pursuant to the search warrant. Watson argues that correcting the address by interlineation was procedurally defective. We disagree.

The judicial officer issuing a search warrant has the right to alter, modify, or correct that warrant. See Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963). This is particularly true when, as here, the correction is made before any search has begun, and the person seeking the alteration is the same one who sought the warrant initially, and will be serving it. Mayorga v. People, 178 Colo. 106, 496 P.2d 304 (1972). The requirements of Hernandez and Mayorga have been met in this case, and we find no error.

There is no merit to Watson's argument that the affidavit relied on for issuance of the warrant was substantively insufficient.

II.

Watson next argues that certain testimony should have been excluded. We find no error in the court's rulings.

Watson's mother testified on direct examination by the prosecution that she called the Wheat Ridge Police Department in February of 1981 because she was worried about her son. The prosecutor asked her if she, "had some indication that your son was involved in anything in February." She answered, "Yes, I did." The prosecutor asked, "And what was that?" She answered, "Well, [Watson's] dad had called me and told me to turn to a certain ..." At this point defense counsel interposed a hearsay objection. The objection was overruled.

Watson's mother then testified that Watson's father told her to look at a newspaper article describing a residential burglary by two masked men. She asked him if Watson was involved, and he answered that he thought so. The court sustained a defense objection to what Watson's father thought, and instructed the jury to disregard this portion of the testimony only. Based on the information supplied by Watson's father, the mother testified that she had contacted Watson.

On appeal, Watson concedes that the foregoing testimony was not hearsay, having been admitted for the sole purpose of demonstrating the witness' state of mind, and not for the truth of the matters asserted. The jury was instructed at each point in the testimony as to its limited purpose and application. Nevertheless, Watson now argues, for the first time, that the probable misuse of the testimony by the jury as substantive evidence of guilt outweighed any probative value it might have had. In essence, this is an argument under CRE 403. However, Watson's objection to this testimony in the trial court was based on hearsay, not on its prejudicial effect as he now argues. Accordingly, having failed to object in the trial court on the grounds now asserted, he is deemed to have waived the objection and cannot raise it on appeal. CRE 103; People v. Taggart, 621 P.2d 1375 (Colo.1981).

Even were we to find that the argument was properly raised on appeal, it is without merit. This particular testimony did not play a central role in the case. There was more than sufficient other evidence of Watson's guilt, including a detailed admission to his mother and several pieces of physical evidence directly demonstrating Watson's connection with the crime.

III.

At trial, there was also testimony by a witness that she was told by one Bowman, in Watson's presence, that the car he and Watson were driving was stolen, and that it was "their car." The testimony indicated that Watson remained silent after this remark, making no...