People v. White

• Decision Date: 26 March 1981
• Docket Number: No. 78-158,78-158
• Citation: People v. White, 632 P.2d 609 (Colo. App. 1981)
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joe Kenneth WHITE, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 609

632 P.2d 609

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v.Joe Kenneth WHITE, Defendant-Appellant.

No. 78-158.

Colorado Court of Appeals, Div. I.

March 26, 1981.

Rehearing Denied April 23, 1981.

Certiorari Denied Aug. 10, 1981.

J. D. MacFarlane, Atty. Gen., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., City and County of Denver, Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Norman R. Mueller, Deputy State Public Defender, Denver, for defendant-appellant.

KIRSHBAUM, Judge.

Defendant, Joe Kenneth White, appeals his conviction by jury of first degree murder.We affirm.

The record reveals that on the evening of April 6, 1977, Dean McLaughlin was shot and killed in front of the Union Pacific Building in Denver.Defendant and McLaughlin were both employed by Union Pacific and McLaughlin was defendant's immediate supervisor.

Following the shooting, several shotgun shell casings were found at the scene.Later that same evening, a police officer interviewed several other Union Pacific agents and learned that defendant had purchased an Ithaca 12-gauge shotgun two weeks prior to the shooting, that he had stated displeasure with McLaughlin over the amount of a recent pay raise, and that defendant sought information about McLaughlin's whereabouts the day prior to the shooting.A police ballistics expert determined that the shells found at the scene could have been fired by an Ithaca 12-gauge shotgun.

This and other information was incorporated into an affidavit in support of an application for an arrest warrant for defendant and a search warrant for his home, both of which were issued on April 7, 1977.Defendant was taken into custody by the police on April 7th at Dahlia Shopping Center and transported to his house, which was then searched.During the search of defendant's house, the police discovered an Ithaca shotgun in a closet and several expended shotgun shells in a garbage can in the kitchen.Defendant was subsequently charged with first degree murder.

At trial, an expert witness for the prosecution testified that some of the shotgun shells recovered at the scene were fired by the same gun which fired the shells found in defendant's garbage can.The expert also testified that he test-fired defendant's gun and that the markings on the shells expended during the test matched those found on some of the shells at the scene and the shells found in defendant's garbage can.Defendant was convicted of first degree murder.

I.THE AFFIDAVIT

Defendant argues that the trial court erroneously denied his motion to suppress statements made by him to arresting officers and to suppress evidence seized from his house and yard.He asserts that the affidavit in support of the search and arrest warrants does not establish probable cause.We disagree.

Defendant first claims that the affidavit was insufficient because it contained inaccurate information.The affiant, Officer Haney, interviewed three of defendant's co-workers immediately following the murder.In the affidavit, Haney stated that one of those agents indicated that defendant had challenged McLaughlin's authority over him.At the suppression hearing, all three of the agents denied having made the statement.The trial court concluded that one of them did make the statement but that Haney had misidentified that agent in the affidavit.

Statements in an affidavit which are untrue or which were known to the affiant to be false must be stricken and cannot be considered in determining whether probable cause exists to support the issuance of a warrant.Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667(1978);People v. Hampton, 196 Colo. 466, 587 P.2d 275(1978).After hearing the testimony of witnesses, including the defendant, the trial court concluded that Haney had acted in good faith in executing the affidavit; that although some of his statements may have been conclusory, they accurately reflected the information obtained at the meeting with the three agents; and, that any inaccurate attribution of information contained in the affidavit was an error of identification which did not invalidate the accuracy of the information itself.There is substantial evidence in the record to support the trial court's conclusions; hence, we may not disturb its findings on appeal.SeePeople v. Ellis, 189 Colo. 242, 539 P.2d 132(1975).

Defendant further argues that, even with the disputed information, the affidavit falls short of establishing probable cause.We disagree.

Facts set forth in an affidavit must support the belief of a reasonably prudent person that the property to be seized is located at the place to be searched or, in the case of an arrest warrant, that an offense has been committed by the person named in the warrant.SeeBeck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142(1964);People v. Brethauer, 174 Colo. 29, 482 P.2d 369(1971).

The affidavit reveals that two weeks before the killing defendant had purchased an Ithaca 12-gauge shotgun, 00-gauge Remington-made buckshot, and Remington shells; that 00-gauge Remington buckshot and Remington shells were found at the scene; that the Remington shells could have been fired by an Ithaca shotgun; that defendant was dissatisfied with a recent pay raise recommended by the victim; that defendant had made a statement revealing hostility toward the victim just prior to the shooting; that the day prior to the incident, the defendant had requested information about the victim's whereabouts; and that defendant had rented an automobile in Colorado Springs for a 24-hour period on the day prior to the incident.We conclude that the affidavit included sufficient facts to warrant the conclusion by an issuing judge that there was probable cause to believe defendant fired the shots that killed McLaughlin.

II.ADMISSIBILITY OF DEFENDANT'S STATEMENTS

Defendant contends that the trial court erred in admitting into evidence certain statements defendant made while being taken into custody and during the drive to his house.We disagree.

Testimony was admitted that, while police officers sought to subdue and arrest defendant, he stated that they would never take him alive and that they would have to kill him.Testimony was also admitted that during the drive to defendant's house, prior to the giving of any Miranda warnings, defendant volunteered the information that the shotgun was in his closet.

The trial court found on conflicting evidence that these statements were spontaneous and voluntary utterances by defendant, that they were not given in response to any interrogation or comments by police officers, and that, therefore, defendant's constitutional rights had not been violated.The record supports the trial court's ruling on this question and it will not be disturbed on appeal.SeePeople v. Pineda, 182 Colo. 385, 513 P.2d 452(1973).Furthermore, defendant did not deny ownership of an Ithaca shotgun at the time the offense occurred; hence, the admission of his statement concerning the location of the shotgun was not prejudicial.

III.EXCLUSION OF EVIDENCE

Defendant argues that the trial court erred in excluding testimony from two witnesses, Mr. Loggins and Mr. Seward, proffered by the defendant.We disagree.

After hearing in camera testimony from both witnesses, the trial court ruled that their testimony was inadmissible, relying on People v. Mulligan, 193 Colo. 509, 568 P.2d 449(1977).In Mulligan, the trial court excluded evidence that other persons had a motive to commit the crime of which defendant was charged where there was no evidence linking the other persons to the crime charged.

Loggins and Seward would have testified that some two and one half hours before the killing they saw an unidentified man with a shotgun walking on the street a few blocks from where McLaughlin was shot.This evidence, while relevant to some degree concerning defendant's theory that other persons committed the murder, had no direct connection with the crime of which defendant was charged.In these circumstances, the trial court did not abuse its discretion in excluding this testimony.SeePeople v. Schultheis, Colo.App., 618 P.2d 710(1980)(cert. granted Oct. 27, 1980);People v. Marioneaux, Colo.App., 618 P.2d 678(1980).

IV.JURY INSTRUCTIONS AND CHARACTER EVIDENCE

Defendant contends that the trial court erroneously instructed the jury regarding evidence of character.We disagree.

Evidence concerning defendant's character and his reputation for truth and veracity was presented by defendant.The trial court refused defendant's requested instruction on good character, but gave the following instruction to the jury:

"You have heard evidence in this case that the defendant has a good moral character and a good reputation for truth and veracity.This evidence may be used by you in conjunction with all the evidence presented in reaching your decision and such evidence is competent as evidence tending to generate a reasonable doubt of the guilt of the defendant as to the offense charged.It is entirely within the province of the jury to determine what weight shall be given this evidence.If on all the evidence you believe in the guilt of the defendant beyond a reasonable doubt, he may not be acquitted solely upon the ground of such good moral character or good reputation for truth and veracity."

Defendant argues that the last sentence of this instruction misstates the law on the weight to be accorded evidence of good character announced by the United States Supreme Court in Edgington v. United States, 164 U.S. 361, 17 S.Ct. 72, 41 L.Ed. 467(1896).

Some jurisdictions have adopted the position urged by defendant.SeeUnited States v. Leigh, 513 F.2d 784(5th Cir.1975);State v. Allen, 89 Wash.2d 651, 574 P.2d 1182(1978).However, in Wilder v. People, 86 Colo. 35, 278 P. 594(1929), the Colorado Supreme Court approved an instruction containing language...