People v. White, 99CA2415.

• Decision Date: 20 June 2002
• Docket Number: No. 99CA2415.,99CA2415.
• Citation: 64 P.3d 864
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Columbus Michael WHITE, Defendant-Appellant.
• Court: Colorado Court of Appeals

64 P.3d 864

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Columbus Michael WHITE, Defendant-Appellant.

No. 99CA2415.

Colorado Court of Appeals, Div. II.

June 20, 2002.

Rehearing Denied September 26, 2002.

Certiorari Denied February 24, 2003.

Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

James Grimaldi, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge TAUBMAN.

Defendant, Columbus Michael White, appeals the judgment of conviction entered on a jury verdict finding him guilty of felony murder, second degree murder, and second degree burglary. We affirm the felony murder conviction but vacate the convictions for second degree murder and second degree burglary.

I. Facts and Procedural History

On the afternoon of April 28, 1998, the victim, an eighty-six year-old grandmother, was attacked and killed inside her home. She had been bludgeoned and stabbed several times, her pants were lowered and an "X" was carved into her buttock. Police determined that the cause of death was a dislocated neck.

Police found the following evidence at the crime scene: (1) the victim's hammer, which had been smashed into her television screen; (2) a knife in the kitchen sink; (3) bloody shoeprints on the floor near the bathroom where the victim was found; (4) emptied boxes of single serving packets of coffee and oatmeal on the kitchen floor; and (5) fingerprints, later determined to be defendant's, on the outside window sill.

Using dogs, the police followed the intruder's scent from the victim's house to the house of defendant's girlfriend. Inside the girlfriend's house, police found defendant's bloody tennis shoes. Testing later revealed that the sole pattern of the tennis shoes matched the shoeprints found inside the victim's house, and the victim's blood matched the blood found on the shoes. Police also found single serving packets of coffee and oatmeal in the girlfriend's house. The girlfriend told police that defendant brought the packets of food to her house.

Two witnesses also testified that they saw a person fitting defendant's description near the victim's home on the afternoon she was murdered.

The police contacted defendant at his father's house at 1:30 a.m. on the morning after the murder. A family friend had invited the police to enter. While police interviewed defendant and his father, a detective noticed more packets of oatmeal. The detective also noticed that defendant had blood splattered on his jeans. Testing later revealed that the blood on defendant's jeans matched the victim's blood. Police subsequently arrested defendant and charged him with felony murder, first degree murder (after deliberation), and second degree burglary. Defendant was seventeen years old at the time of the murder.

Defendant filed a motion to suppress all evidence that police seized at his father's and girlfriend's homes, as well as all statements he made to police. After a four-day hearing, the trial court denied defendant's motion in a detailed and well-written twenty-five page order.

Defendant maintained at trial that two separate and unrelated burglaries had occurred at the victim's house on the day of the murder. During the first burglary, he contended, another intruder had murdered the victim. The second burglary, for which he admitted responsibility, allegedly occurred after the victim was already dead.

A jury convicted defendant of felony murder, second degree burglary, and second degree murder, a lesser included offense of first degree murder (after deliberation). The trial court sentenced defendant to life in prison on the felony murder and concurrent sentences of forty-eight years on the second degree murder and twenty-four years on the burglary. This appeal followed.

II. Suppression Issues

Defendant advances four different reasons why the trial court erred when it denied his motion to suppress his statements and the evidence obtained at the homes of his father and girlfriend. We disagree.

Both the United States and Colorado Constitutions afford protection from unreasonable searches and seizures. See U.S. Const. amend. IV; Colo. Const. art. II, § 7.

However, the Fourth Amendment does not protect a defendant from police intrusions that do not abridge a legitimate expectation of privacy. The existence of a legitimate expectation of privacy must be determined after examining all the facts and circumstances in a particular case. People v. Shorty, 731 P.2d 679 (Colo.1987).

Further, under the Fourth Amendment, a warrantless search of a person's home is presumptively unreasonable. Petersen v. People, 939 P.2d 824 (Colo.1997).

When reviewing a trial court's suppression ruling, we must determine whether the trial court's factual findings are adequately supported by competent evidence in the record. If they are, we will not disturb them. People v. Gennings, 808 P.2d 839 (Colo.1991); People v. Graham, 53 P.3d 658 (Colo.App.2001). We must also determine whether the trial court applied the proper legal standard to the facts of the case. People v. Jordan, 891 P.2d 1010 (Colo.1995); People v. Graham, supra. A trial court's legal conclusions are subject to de novo review. People v. Romero, 953 P.2d 550, 553 (Colo.1998).

A. Tennis Shoes Seized at the Girlfriend's House

We reject defendant's various arguments that his tennis shoes should have been suppressed.

1. Common Authority

Defendant first contends that because he was a licensed guest at his girlfriend's home, she did not have common authority to consent to the police seizure of his tennis shoes. However, we conclude, as discussed below, that the girlfriend had common authority to invite police into her bedroom and that the plain view doctrine justified the police seizure of his tennis shoes.

The prohibition against warrantless searches does not apply when voluntary consent has been obtained, either from the individual whose property is searched or from a third party who possesses common authority over the property. People v. Breidenbach, 875 P.2d 879 (Colo.1994).

A third party does not have authority to consent to a search simply by virtue of ownership of the property. Rather, the third-party's authority rests on mutual use of the property by persons generally having joint access or control for most purposes. People v. Breidenbach, supra.

To establish common authority, the evidence must show such mutual use, that it is reasonable to recognize that any of the cohabitants has the right to permit inspection and that the others have assumed the risk that one of them might permit the area to be searched. People v. Kellum, 907 P.2d 712 (Colo.App.1995).

Here, the trial court found that the girlfriend rented the house and paid the bills and that defendant stayed there frequently and kept some clothes there. The court concluded that she had control over and access to the entire home.

Further, the trial court found that although the police had the girlfriend's house under surveillance because the police dogs had tracked a scent to her house, the police had initially contacted the girlfriend because she reported that her car had been stolen. She subsequently invited the police into her house, where she discussed her relationship with defendant and the murder at issue here. While they were in her home, the police and the girlfriend began talking about her handcrafted furniture in the living room. The girlfriend indicated that she had more furniture in her bedroom and asked the police if they wanted to see it. A police officer followed her into the bedroom and, as he entered the bedroom, he saw a pair of tennis shoes on the floor near the doorway with one shoe lying on its side. The officer noticed that the shoes appeared to have blood on them. This officer had seen the shoeprints on the floor of the victim's house. He noticed that the soles of the tennis shoes matched those shoeprints. The girlfriend told police that the shoes belonged to defendant. She then she signed a consent to search form, and subsequently, the police seized the tennis shoes, other clothing, and packets of food.

Defendant argues that although the girlfriend had authority to consent to a search of the premises, she could not authorize a seizure of his tennis shoes. However, based on our review of the record, we conclude that the girlfriend had common authority to invite police into her home and into her bedroom, where, under the plain view doctrine, the police legally seized his tennis shoes. The fact that she consented to the seizure of his tennis shoes is irrelevant.

2. Plain View

Defendant contends that because police lacked probable cause to believe that the tennis shoes contained any material evidence of a crime, the trial court erred when it determined that the plain view exception to the warrant requirement applied to the shoes. We disagree.

The "plain view" doctrine is another well-established exception to the warrant requirement. The plain view doctrine justifies the warrantless seizure of evidence when an object in plain view possesses a readily apparent incriminating character. People v. Kluhsman, 980 P.2d 529 (Colo.1999).

Police may seize evidence in plain view if: (1) the initial police intrusion onto the premises was legitimate; (2) the police had a reasonable belief that the evidence seized was incriminating; and (3) the police had a lawful right of access to the object. People v. Kluhsman, supra, 980 P.2d at 534.

The trial court's findings discussed above are supported by the record, and thus the trial court properly concluded that the shoes were subject to the plain view exception to the warrant requirement. The officer observed the tennis shoes as a result of a lawful entry into the girlfriend's bedroom — he was invited in — and the incriminating character of the tennis shoes was immediately apparent.

Further, we disagree with defendant's contention that the Supreme Court's...