Opinion
No. 76-697
Decided August 25, 1977. Rehearing denied October 13, 1977. Certiorari granted February 6, 1978.
From conviction on charges of first degree arson and conspiracy to commit arson, defendant appealed.
Affirmed
1. CRIMINAL LAW — Search and Seizure — Illegal Police Visit — No Evidence Resulted — All Pertinent Facts — Seizure of Gasoline Can — Known Before Trial — Motion to Suppress — Untimely. Although defendant was unaware prior to trial of assertedly illegal visit by police to his home, that intrusion produced no evidence which was used against defendant, and thus, since defendant possessed prior to trial all pertinent information relative to seizure of gasoline container that had been voluntarily delivered to the police by defendant's wife after the alleged illegal visit, the trial court did not abuse its discretion in declaring motion to suppress that container made during trial as being untimely.
2. Cross-Examination — Prosecution Witness — Admitted Numerous Offenses — Plea Bargain — Limitation on Further Inquiry — No Abuse of Discretion. Where prosecution witness recited numerous violations of the law for which he had been neither charged nor convicted, where he admitted his participation in the arson of which defendant was charged, and also stated that he had been involved in a previous adjudication resulting in a plea bargain, the trial court did not abuse its discretion in precluding an even more extensive inquiry into the witness' criminal background.
3. Appeal and Error — No Cross-Appeal — By People — Attempt — Enlarge Defendant's Sentence — Must Comply — Due Process. Generally, in the absence of a cross-appeal, an appellee may not raise on review alleged errors of the trial court, but an exception to this rule is recognized when the appellee asserts argument in support of his judgment which would not increase his rights under the judgment; and, in the context of a criminal proceeding, principles of due process demand, at a minimum, that an attempt by the prosecution to enlarge an appellant's sentence conform to those established procedural requisites.
4. Appeal and Error — Attempt — Enlarge — Defendant's Sentence — No Cross-Appeal Filed — Fatal — Merits Not Considered. Where, without apprising trial court of its alleged error, and without notice to defendant, the People sought, without filing cross-appeal, to attack the propriety of, and thereby enlarge, sentence received by criminal defendant, neither the appellate rules nor any other authority permits such an attack on that sentence; rather, the People's failure to file a cross-appeal was fatal to any further challenge to the sentence, and accordingly, the merits of that challenge will not be considered by the appellate court.
Appeal from the District Court of Jefferson County, Honorable Winston W. Wolvington, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, James S. Russell, Assistant Attorney General, for plaintiff-appellee.
Joe Clarence Medina, Charles F. Murray, for defendant-appellant.
The defendant, Joseph Edwin Hinchman, appeals his conviction on charges of first degree arson and conspiracy to commit arson. And, for the first time in the prosecution, the People now seek to attack the sentence imposed against defendant. We affirm the judgment.
I.
Defendant first contends that the trial court erred in denying defendant's motion, made during the trial, to suppress as evidence a gasoline can discovered at defendant's residence. There was no error.
Pursuant to a valid warrant, police officers searched defendant's home on March 20, 1975. The officers located and seized several gasoline containers, including the can in question. However, even though the item was listed in their return and inventory, the officers inadvertently left the container behind on the premises.
Becoming aware that the container was missing, the officers returned to defendant's home on the following day and placed tape over the mouth of the can to prevent any vapors therein from escaping. Subsequently, on March 24, defendant's then-estranged wife and a joint owner of the property visited the residence and observed the container in the garage. Mrs. Hinchman testified at trial that during a telephone conversation with one of the police investigators, she inquired of the officer why the gasoline can was still located in the garage and was informed that the police had mistakenly failed to transport it with the other items seized. Mrs. Hinchman stated that she thereupon volunteered to deliver the container to the officers, and later did so.
Although defendant did not move to suppress the container until the trial was in progress, the trial court in its discretion permitted defendant to argue the motion. See People v. Stevens, 183 Colo. 399, 517 P.2d 1336 (1973). Following an in camera hearing, the trial court found that defendant and his counsel were aware prior to trial of the means by which the police had obtained the container and, consequently, that the motion was not timely filed.
Defendant now maintains that regardless of his knowledge of Mrs. Hinchman's role in producing the evidence, neither he nor his attorneys were informed of the officer's second visit to, and allegedly illegal search of, his home on March 21. Thus, defendant concludes, he was not aware of the grounds for his motion prior to the officer's testimony at trial, see Crim. P. 41(e)(5), and that therefore the court erred in finding that the motion was not timely filed. This argument is not persuasive.
The initial search of defendant's home was conducted with a valid warrant, and the knowledge concerning the container acquired by the officers during that search was not impermissibly tainted under the doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). See People v. Orf, 172 Colo. 253, 472 P.2d 123 (1970). Actual seizure of the container was accomplished through Mrs. Hinchman's voluntary relinquishment of the item. And, in view of Mrs. Hinchman's proprietary interest in the premises, her agreement to surrender the evidence resulted in no infringement of defendant's constitutional rights. See United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Lanford v. People, 176 Colo. 109, 489 P.2d 210 (1971).
[1] Accordingly, even if the officers' second visit were deemed illegal, that intrusion produced no evidence which was used against defendant and could not have provided grounds upon which to grant the motion for suppression. Under these circumstances, defendant possessed prior to trial all pertinent information relative to the seizure of the container and its possible suppression, and the trial court consequently did not abuse its discretion in declaring the motion untimely. See Morgan v. People, 166 Colo. 451, 444 P.2d 386 (1968); see also Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
II.
Defendant next asserts that the trial court erred in limiting his cross-examination of the People's chief witness. We disagree.
The prosecution witness, who had been involved in a previous juvenile delinquency adjudication, testified that defendant had offered him $200 to burn the offices of one Russel Gummin. The witness recounted at length his conversations with defendant, the means by which he gained access to the building and started the fire, and his motives for testifying against defendant, which included a plea bargain in the instant case. He also admitted that he had burglarized the offices before burning them, that he had used drugs on the day of the incident, and that he fled the scene of the crime in an automobile which he had stolen several days previously.
With respect to the witness' past adjudication, the trial court ruled in camera that impeachment on this basis would be limited to establishing that the witness had been charged with previous offenses and that he had in that prosecution received certain favorable treatment in return for his testimony against the other defendants.
Relying on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) and People v. King, 179 Colo. 94, 498 P.2d 1142 (1972), defendant argues that he was entitled to impeach the witness by detailed examination concerning the earlier adjudication, including the nature of the offense, the date of the adjudication, and the precise terms of the plea bargain. Neither decision advanced by defendant mandates such a result.
Davis v. Alaska, supra, does not confer a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications, see concurring opinion of Stewart, J.; see also People v. Robles, 183 Colo. 4, 514 P.2d 630 (1973), but rather it requires only that an adequate inquiry into the bias and motivation of a witness be permitted. Here, in contrast to the circumstances present in Davis, defense counsel was permitted to explore fully the witness' motives for testifying, which examination satisfied the rights of confrontation enunciated in both Davis and in People v. King, supra.
In connection with general impeachment designed to show a witness' lack of credibility through his prior crimes, broad latitude is to be afforded the cross-examiner. However, the scope and limits of such cross-examination are within the sound discretion of the trial court. People v. Crawford, 191 Colo. 504, 553 P.2d 827 (1976).
[2] Here, the witness recited numerous violations of the law for which he had been neither charged nor convicted. He admitted his participation in the arson and also stated that he had been involved in a previous adjudication resulting in a plea bargain. Given that testimony, the trial court did not abuse its discretion in precluding an even more extensive inquiry into the witness' criminal background.
III.
Without cross-appeal, the People here attempt to challenge the propriety of defendant's sentence, which was suspended in part by the trial court. We decline to consider the matter.
[3] Generally, in the absence of a cross-appeal, an appellee may not raise on review alleged errors of the trial court. Newt Olson Lumber Co. v. School District No. 8, 83 Colo. 272, 263 P. 723 (1928). An exception to the rule is recognized when the appellee asserts arguments in support of his judgment which would not increase his rights under the judgment. City of Delta v. Thompson, 37 Colo. App. 205, 548 P.2d 1292 (1975). In the context of a criminal proceeding, principles of due process demand, at a minimum, that an attempt by the prosecution to enlarge an appellant's sentence conform to these established procedural requisites.
Appeals by the prosecution are permitted in this state pursuant to statute. Section 16-12-102, C.R.S. 1973; see also Krutka v. Spinuzzi, 153 Colo. 115, 384 P.2d 928 (1963). But, § 16-12-102 must be interpreted consistently with applicable rules of procedure and judicial precedent indicative of the legislative intent underlying the statute. See People v. Stevens, 183 Colo. 399, 517 P.2d 1336 (1973).
The People argue that C.A.R. 4(c)(2)(I) and People v. Renfrow, 193 Colo. 131, 564 P.2d 411 (1977), establish the proposition that review of the propriety of a sentence is an adjunct of the appeal, even when the matter has not been raised. However, the situation here concerning an attempted enlargement of defendant's sentence is to be distinguished from the circumstances contemplated in the Rule, which is specifically limited to appeals by a defendant, and from the situation in Renfrow where a reduced sentence was ordered.
In addition, judicial standards of fairness reaching constitutional proportion do not permit procedures which effectively deter a defendant from exercising his rights to appeal. Here, given the People's failure to apprise the trial court of its alleged error and the lack of notice to defendant of the intended attack on his sentence, the observance of such standards becomes crucial.
The United States Supreme Court has on numerous occasions addressed the due process considerations arising from the possibility of a criminal defendant's receiving an increased sentence as a consequence of his appeal. In its most recent and definitive treatment of the question, the Court stated:
"The lesson that emerges from [past cases] is that the due process clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of 'vindictiveness.' "
Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The decision further explains that the requisite "vindictiveness" is not necessarily evidenced by bad faith on the part of the prosecution, but can also be manifested through circumstances which indicate that the state is engaged in retaliation against the defendant.
[4] While the precise facts of Blackledge are distinguishable from those presented in this case, the Court's rationale is not. See also ABA, Standards Relating to Criminal Appeals § 2.3(c)(iii). We therefore conclude that neither C.A.R. 4(c) nor any other authority permits the attack on defendant's sentence attempted by the prosecution in this case. Rather, we hold that the People's failure to file a cross-appeal was fatal to any further challenge to the sentence, and, accordingly, we do not reach the merits of that issue.
The judgment is affirmed.
JUDGE BERMAN concurs.
JUDGE KELLY concurs in part and dissents in part.