Opinion
No. 78-691
Decided August 9, 1979. Rehearing denied August 30, 1979. Certiorari granted December 17, 1979.
Convicted of first degree murder and conspiracy, defendant appealed.
Affirmed
1. EVIDENCE — Inculpatory Statement — Freely and Voluntarily Given — Supported By Evidence. Although there was some evidence suggesting that district attorney and police investigators agreed to a plan whereby defendant would be misled into believing that he was not a suspect, in hopes that information could be obtained before advising him of his rights, nevertheless, that plan was abandoned, defendant was properly advised of, and waived, his Miranda rights, and he then made an inculpatory statement; consequently, the asserted existence of the unlawful plan did not require that the inculpatory statement be suppressed.
2. Warrantless Arrest — Probable Cause Present — Arrest May Be Effected — Anywhere — Arrest in Home — Proper. As long as police officers have probable cause to believe that a person has committed a crime, they may arrest that person regardless of where they find him, provided that in the process of finding him they do not breach his constitutionally protected expectations of privacy; therefore, where police officers did not gain entry to a private residence by force, but rather were invited in by defendant's parents, any privacy expectations which defendant and his parents had were dissolved, and the warrantless non-exigent arrest of defendant in his home was proper.
3. Limitation — Cross-Examination — Co-Conspirator's Understanding — Plea Bargain — Within Discretion of Trial Court. Where defendant's alleged co-conspirator in murder had entered plea bargain, the trial court's limitation of cross-examination as to the co-conspirator's subjective understanding of his plea bargain was not an abuse of its discretion.
4. Jury Instruction — Lesser Offense — Only Required — Evidence Supports — Denial of Instruction — Accessory After The Fact — Correct. A trial court is obligated to give an instruction on a lesser offense only where there is evidence of lesser offense; therefore, since the evidence established that defendant was either guilty of first degree murder and conspiracy or not guilty of any offense, the trial court's refusal of defendant's tendered instruction on accessory after the fact as a lesser offense of first degree murder was correct.
Appeal from the District Court of Arapahoe County, Honorable Richard Greene, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Robert C. Lehnert, Assistant Attorney General, for plaintiff-appellee.
Peter H. Ney, for defendant-appellant.
Defendant was convicted of first degree murder and conspiracy to commit first degree murder. He appeals and we affirm.
Defendant's alleged co-conspirator, McCarthy, testified that he, defendant, and another person planned and carried out the murder of the victim, fearing that the victim might implicate them in the theft of a motorcycle. The substance of McCarthy's testimony was corroborated by defendant's own inculpatory statement, which he made to the police after his arrest and which was introduced through one of the arresting officers.
I.
Defendant first argues that the inculpatory statement should have been suppressed since it was the product of the district attorney's unlawful plan to interrogate him contrary to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We disagree.
[1] There is some evidence suggesting that the district attorney and various police investigators agreed to a plan whereby defendant would be misled into believing that he was not a suspect in the case, in the hopes that information could be obtained from him before advising him of his rights. There is also evidence indicating that there was an attempt to carry out this plan.
However, the plan bore no fruit, since the only statements which defendant made during this period were exculpatory. It was only after the officers abandoned the plan, arrested defendant, advised him of his rights pursuant to Miranda, and obtained a signed waiver of those rights, that defendant made the inculpatory statement. After a detailed hearing on defendant's motion to suppress, the trial court found that defendant's statement was freely and voluntarily given, a factual finding we will not disturb on review. See People v. Davis, 194 Colo. 466, 573 P.2d 543 (1978); People v. Costa, 193 Colo. 386, 566 P.2d 366 (1977).
We also disagree with defendant's contention that the statement should have been suppressed since it was the product of an unlawful warrantless arrest.
Defendant concedes that exigent circumstances are no longer statutorily required for a warrantless arrest. Section 16-3-102(1)(c), C.R.S. 1973 (1978 Repl. Vol. 8). Cf. People v. Hoinville, 191 Colo. 357, 553 P.2d 777 (1976). Nevertheless, he argues that the Colorado and United States Constitutions require exigent circumstances, at least in the context of a warrantless arrest at a defendant's home. We disagree.
The United States Supreme Court has expressly reserved the question of whether the Fourth Amendment requires police officers to obtain an arrest warrant before they may enter private premises to effect a non-exigent arrest. See United States v. Santana, 427 U.S. 38, 49 L.Ed.2d 300, 96 S.Ct. 2406 (1976); United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). See generally Note, Watson Santana: Death Knell for Arrest Warrants?, 28 Syracuse L. Rev. 787 (1977). Our Supreme Court has not decided this issue. See People v. Casias, 193 Colo. 66, 563 P.2d 926 (1977). And, the federal courts of appeals and courts of other states are divided over the question. Compare United States v. Wysocki, 457 F.2d 1155 (5th Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105 (1972), and People v. Payton, 45 N.Y.2d 300, 380 N.E.2d 224 (1978), with United States v. Reed, 572 F.2d 412 (2d Cir. 1978).
[2] We are persuaded that as long as officers have probable cause to believe that a person has committed a crime, they may arrest that person regardless of where they find him, provided, of course, that in the process of finding him they do not breach his constitutionally protected expectations of privacy. We are not convinced that every arrest made at a private residence necessarily infringes on these privacy interests.
Here, where the police officers did not gain entry to the house by force, but rather were invited in by defendant's parents, any privacy expectations which defendant and his parents enjoyed were dissolved, and the warrantless non-exigent arrest was proper. See United States v. Santana, supra (White, J., concurring); Commonwealth v. Boswell, 372 N.E.2d 237 (Mass. 1978). Cf. Laasch v. State, 84 Wis.2d 587, 267 N.W.2d 278 (1978) (defendant's five-year-old son, without defendant's consent, let officers into the house).
II.
We also reject defendant's contention that the trial court reversibly erred when it limited the cross-examination of McCarthy by refusing to allow inquiry into McCarthy's subjective understanding of the plea arrangement. Specifically, the trial court ruled that defense counsel could not ask McCarthy about his subjective understanding of the parole possibilities for second degree murder as opposed to those for first degree murder. We find no reversible error.
[3] While it is true that a trial court should allow a defendant wide latitude in cross-examining his accusers, it is also true that the particular line drawn marking that latitude is a matter within the sound discretion of the trial court. People v. Crawford, 191 Colo. 504, 553 P.2d 827 (1976). We cannot say this discretion was abused here, particularly in view of the fact that defense counsel was permitted to inquire fully into the terms of the bargain which McCarthy struck, including the sentencing consequences of his guilty plea.
Moreover, in view of the other evidence against defendant, including his inculpatory statement, any error in limiting McCarthy's cross-examination was harmless. See C.R.C.P. 52(a); C. McCormick, Evidence § 40 (E. Cleary 2d ed. 1972), quoted in People v. Taylor, 190 Colo. 210, 545 P.2d 703 (1976). See also Parker v. Randolph 442 U.S. 62, 99 S.Ct. 2132 60 L.Ed.2d 713 (1979) (Blackmun, J., concurring in part).
III.
Citing Leech v. People, 112 Colo. 120, 146 P.2d 346 (1944), defendant also argues that the trial court erred in permitting the district attorney to put McCarthy on the stand and deliberately elicit testimony from him concerning his guilty plea. However, defendant failed to object to this testimony, waiting until after the weekend recess to move for a mistrial. Under these circumstances, and perceiving no plain error, we need not reach defendant's contentions in this regard. See Crim. P. 52; Duncan v. People, 178 Colo. 314, 497 P.2d 1029 (1972).
Moreover, defendant's reliance on Leech, supra, is misplaced. Where, as here, there is other evidence amply establishing the defendant's guilt, and defense counsel himself chooses to impeach the witness by questioning him about the guilty plea, any error in permitting the district attorney to inquire into the plea is harmless. See People v. Craig, 179 Colo. 115, 498 P.2d 942, cert. denied, 409 U.S. 1077, 93 S.Ct. 690, 34 L.Ed.2d 666 (1972).
IV.
Finally, defendant contends that the trial court erred when it refused his tendered instruction on accessory after the fact as a lesser offense of first degree murder. See § 18-8-105, C.R.S. 1973 (1978 Repl. Vol. 5). Defendant theorizes that the jury could have disbelieved the first portion of McCarthy's testimony relating to defendant's role in the planning and commission of the crime, yet believed the second portion of his testimony regarding defendant's role in disposing of the body.
[4] However, a trial court is obligated to give an instruction on a lesser offense only where there is evidence of the lesser offense. Hanes v. People, 198 Colo. 31, 598 P.2d 131 (1979); People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974). The evidence here, including defendant's own admission of involvement in the planning stages of the crime, established that defendant was guilty either of first degree murder and conspiracy — a single criminal episode of which the disposal of the body was the last step — or not guilty of any offense. Under these circumstances, and in view of the fact that the jury was properly instructed on the law of complicity, defendant's tendered instruction on accessory after the fact was properly denied.
Judgment affirmed.
CHIEF JUDGE ENOCH and JUDGE SILVERSTEIN concur.