No. 84CA1192Colorado Court of Appeals.
Decided May 15, 1986. Rehearing Denied June 19, 1986. Certiorari Denied Rivers October 14, 1986 (86SC255).
Appeal from the District Court of Mesa County Honorable William M. Ela, Judge
Page 395
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 396
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 397
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Maureen Phelan, Assistant Attorney General, for Plaintiff-Appellee.
David A. Palmer, for Defendant-Appellant.
Division II.
Opinion by JUDGE SMITH.
[1] Defendant, West Rodrick Rivers, appeals the judgment of conviction and the sentence imposed that were entered upon a jury verdict of guilty of second degree murder and felony theft. We affirm. [2] Defendant was charged with first degree murder and felony theft stemming from the death of his wife. The evidence at trial and the suppression hearing established that the victim was last seen on a Friday evening outside the trailer which she shared with defendant. The following day defendant was seen outside the trailer, but appeared reluctant to invite others inside. On that Sunday, the defendant drove away in his employer’s truck with his two dogs, and did not return to the padlocked trailer. [3] The next Wednesday the trailer park owners heard complaints about an offensive odor emanating from the Rivers’ trailer. One of the owners called the sheriff’s office, and an investigator came out. The owner accompanied the deputy sheriff to the trailer and unlocked the padlock with a key that had been given to the owners a few weeks previously by defendant. The deputy entered the trailer and discovered the wife’s decomposing body. The deputy left and called an investigating team. The team, including the coroner, came out and took photographs of the body in its original position and then removed it. Later the sheriff’s department secured a search warrant, and made a detailed search of the premises. [4] The defendant was not arrested until almost three years after the victim’s death. The arrest occurred in a fishing camp in Texas where defendant had rented a cabin under an alias. A Texas sheriff’s deputy, relying solely on the Colorado arrest warrant, knocked on the door of defendant’s cabin and asked defendant to step outside. Defendant was placed under arrest after he stepped outside his door. After he was arrested, defendant asked to go inside to get some cigarettes. When the deputy accompanied him inside he saw several items which were later seized and used as evidence at trial.[5] I. SEARCH OF THE TRAILER
[6] Defendant contends that the initial entry into and search of his trailer were illegal because they were not conducted under a warrant and did not fall under any of the exceptions to the Fourth Amendment warrant requirement. We do not agree.
Page 398
entry. He further argues, citin Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), that, absent an emergency justifying a warrantless entry, the park owners lacked the authority to consent to a search on behalf of defendant.
[9] Consent to a search of a dwelling need not be obtained from the owner, if it is obtained from a third party who possesses “common authority” over the property or some other “sufficient relationship” with it. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 854 (1973) People v. Berow, 688 P.2d 1123 (Colo. 1984). Consent may be explicit, or it may be inferred from the totality of the circumstances. People v. Berow, supra. [10] Valid consent has been inferred in several cases where the individual giving the consent had been entrusted with a key by the individual seeking to suppress the evidence discovered. United States v. Sellers, 668 F.2d 1123 (4th Cir. 1981); United States v. Sor-Lokken, 557 F.2d 755 (10th Cir. 1977); People v. Berow, supra. [11] Here, we need not reach the question of whether the defendant’s qualified entrustment of the key to the park owners gave them blanket authority to consent to a search because defendant explicitly granted them the authority to enter in case of an “emergency.” The requisite emergency need not be an exigency sufficient by itself to waive the warrant requirement. Any event understood by the park owners to be so unusual as to require investigation suffices. See People v. Berow, supra. Here, an odor that was unpleasant enough to cause complaints from other park residents was adequate to constitute an “emergency” sufficient to allow the park owners to enter the trailer and investigate its source.[12] II. ARREST
[13] Defendant next contends that his arrest was unlawful because it was effected in the defendant’s home not pursuant to a warrant based on probable cause. His contention is without merit.
§ 16-19-115, C.R.S. (1978 Repl. Vol. 8). Therefore, defendant’s arrest in Texas was valid only if he was in a public place at the time it was made. [16] Generally, if a suspect steps onto his stoop or into his doorway so that he is in public view before being arrested a warrantless premised on probable cause arrest is valid. United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). [17] Here, the court found, on supporting evidence, that defendant was not enticed to his doorway by improper means. Therefore, the deputy’s knowledge of the Colorado warrant served as probable cause on which he effected a valid warrantless arrest in a public place.
Page 399
[18] III. CONFESSION
[19] Defendant’s third contention is that his confession to a co-worker should have been suppressed because it was involuntary as a result of his extreme intoxication. We perceive no error.
[21] IV. VOIR DIRE
[22] Defendant contends that the trial court erred when it denied his motion to voir dire members of the jury panel individually with respect to their attitude towards alcoholism. While defendant did question prospective jurors with respect to alcoholism, he contends that the fact that the questioning occurred in open court so inhibited the panel members that he was unable to assess accurately their attitudes toward alcoholism. Defendant’s contention is without merit.
[24] V. DISCOVERY MATTERS
[25] Defendant contends that the trial court erred when it denied him a continuance after interviews with prosecution witnesses divulged felony records which had not been disclosed to defendant prior to trial. We disagree.
(Colo. 1981). However, evidence is generally not considered improperly withheld if the defendant has knowledge of it, and mere technical non-compliance does not require the imposition of sanctions by the trial court. People v. Graham, 678 P.2d 1043 (Colo.App. 1983). [27] Here, the trial court ordered disclosure of the criminal records of prosecution witnesses. When it became apparent at trial that certain prosecution witnesses had criminal records which had not previously been discovered by the prosecution, the trial court ordered computer checks done on each witness over the night recess. When the computer checks turned up no information which had not already been disclosed to the defendant by the prosecution, the trial court specifically found that the prosecution had complied with the discovery order. Because no new information was unearthed by the tardy computer search, the trial court did not abuse its discretion in denying defendant’s motion for continuance.
[28] VI. SIMILAR TRANSACTION EVIDENCE
[29] Defendant also contends that the trial court erroneously admitted evidence that he had threatened and struck the victim on occasions prior to the assault that caused her death. He argues that the prejudicial effect of this evidence so far outweighs its probative value that it is inadmissible even for limited purposes. This contention is meritless.
Page 400
[30] Evidence of prior criminal transactions is admissible only if the trial court finds: (1) the evidence is admitted for a valid purpose; (2) the evidence is relevant to a material issue in the case; and (3) the probative value of the evidence outweighs its prejudicial effect. People v. Honey, 198 Colo. 64, 596 P.2d 751 (1979). The trial court must also instruct the jury at the time the evidence is admitted that it may only be considered for limited purposes. Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959). [31] Here, the trial court properly instructed the jury that it could consider the similar transaction evidence to establish identity, motive, and intent. Because the evidence of the crime was circumstantial, identity, intent, and motive appeared to be material issues at the time the evidence was admitted (although defendant later conceded identity). However, the trial court was less than explicit in its finding that the probative value of the evidence outweighed its prejudicial effect. [32] Trial court errors do not require reversal unless they affect the substantial rights of a defendant. Crim. P. 52(a). In light of defendant’s concession in closing argument of his identity as the person who killed the victim, his reliance on intoxication to disprove intent, and the jury’s verdict of not guilty to first degree murder, we hold that any prejudice resulting from admitting the similar transaction evidence was harmless error.[33] VII. EXPERT OPINION TESTIMONY
[34] Defendant further contends that the pathologist’s testimony that the attack on the victim occurred in two stages was improper because it went directly to an ultimate issue in the case, i.e., whether the killing was “after deliberation.” This contention is without merit.
[36] VIII. VOLUNTARY INTOXICATION DEFENSE
[37] The defendant also contends that the defense of voluntary intoxication should be available to rebut the mens rea requirement of second degree murder. However, based on the common-law tradition, our General Assembly has determined for policy reasons that voluntary intoxication is not available as a defense to general intent crimes, including second degree murder. See § 18-1-804(1), C.R.S. (1978 Repl. Vol. 8); People v. DelGuidice, 199 Colo. 41, 606 P.2d 840 (1979).
[38] IX. INEFFECTIVE ASSISTANCE OF COUNSEL
[39] Defendant contends that his counsel’s concession in closing argument that the evidence showed that defendant had killed the victim constituted ineffective assistance of counsel and entitled him to a new trial. We disagree.
Page 401
the time of trial, he received effective representation.
[42] X. CUMULATIVE ERROR
[43] Defendant’s final contention with respect to the judgment of conviction is that cumulative errors prevented him from having a fair trial. Defendant particularly relies on the trial court’s denial of his motion for mistrial made after a prosecution witness made certain inadmissible statements with respect to similar transactions by the defendant. We find no reversible error.
[47] XI. SENTENCING
[48] Defendant contends that the court erred in sentencing him to a term in the aggravated range. He argues that the trial court erroneously excluded a videotaped interview with him while he was under hypnosis by a psychologist. He contends that the interview presented evidence of mitigation which would have precluded the imposition of a sentence in the aggravated range. His contention is without merit.