Ct. App. August 19, 2010

No. 06CA1831. People v. Strock.Vehicular Homicide—Driving Under the Influence—Prosecutorial Misconduct—Habitual Criminal—Extended Proportionality Review.

Defendant Richard Strock appealed the judgment of conviction entered on jury verdicts finding him guilty of vehicular homicide while driving under the influence, driving under the influence, and driving under the influence per se. He also appealed his sentence of forty-eight years in the Department of Corrections (DOC). The judgment and sentence were affirmed.

In 2005, Strock’s wife was killed after the vehicle he and his wife were traveling in collided with a guardrail and cement barrier on Interstate 70 in Denver. After Strock was found guilty by the jury, the trial court found Strock to be a habitual criminal based on two prior felony drug convictions and two prior felony convictions for driving after revocation prohibited.

On appeal, Strock contended that his conviction should be reversed because of prosecutorial misconduct.  The court examined two statements by the prosecutor; the first was ""It could just as easily have been [a witness] who was lying on that slab in the coroner’s office,".  The counsel at trial objected to such statement, however, the court of appeals did not believe it was misconduct to make such a statement.  The second statement was, "There were other people on that highway that night traveling west on I-70, and he was a loaded gun for every single one of them."  The trial court did not abuse its discretion in ruling that the prosecutor may use metaphors of this type in  closing argument, particularly since there was adequate evidence of the cause of the victim's death.  The prosecutor’s statements were a reasonable inference from the evidence in the record.

Strock argued that the prosecutor twice misstated the law during closing argument. Although the prosecutor’s statements were erroneous because they did not require the jury to find that Strock’s driving while intoxicated caused the victim’s death, the statements did not rise to the level of plain error, because the jury was given the correct information through closing arguments and the jury instructions. Further, the prosecutor’s comments on the lack of evidence to support Strock’s defense theory that he was not driving at the time of the accident did not improperly shift the burden of proof to Strock.

Strock contended that the prosecutor failed to prove beyond a reasonable doubt that he was a habitual criminal. However, Strock failed to show that he was prejudiced by the information’s failure to specify the felony offenses in counts five and eight, and that he did not have adequate notice of the underlying offenses to enable him to prepare a defense.

Strock further contended that the trial court erred by declining to conduct an extended proportionality review of his sentence, because his conviction for vehicular homicide while driving under the influence was not grave and serious. However, the offense of vehicular homicide while driving under the influence is grave and serious per se. Therefore, the court did not err in declining to conduct an extended proportionality review.

No. 06CA2252. People v. Warner. Motion to Suppress Evidence—Veracity Hearing—Possession of Controlled Substances—Drug Paraphernalia—Firearms—Special Offender—Search Warrant.

Defendant appealed his multiple convictions for possession of controlled substances, drug paraphernalia, and firearms. He also appealed his conviction and enhanced sentence as a special offender. The judgment and sentence were affirmed.

Pursuant to a warrant, police searched a residence identified as defendant’s home and found various items of contraband. Defendant asserted at trial that he did not live at the residence on the date it was searched and that the items seized belonged to an alternate suspect that he alleged was the sole tenant of the residence.

On appeal, defendant contended that the trial court improperly denied his motion to suppress evidence seized pursuant to a search warrant based on allegedly false statements made by a first-time informant.  The defense interviewed the alleged informant who denied making the statements attributed to him in the search warrant affidavit.  However, during the veracity hearing, defendant offered no evidence, other than the affidavit of a defense investigator, to support his claim that the search warrant affidavit was based on false information.  The trial court would not allow the affidavit of the investigator into evidence at the hearing.  The court of appeals agreed, and stated:

It is one thing for a trial court to accept an affidavit to establish the existence of a dispute regarding the truth of the allegations in the search warrant affidavit. It is quite another to accept the same affidavit for the purpose of resolving that dispute. See, e.g., Doug Sears Consulting, Inc. v. ATS Services, Inc., 752 So. 2d 668, 670 (Fla. Dist. Ct. App. 2000) (affidavit not generally admissible at evidentiary hearing because it is not subject to cross-examination). Even in circumstances where affidavits are otherwise admissible, an affidavit not based on the affiant’s personal knowledge will not suffice. See CRE 602; State v. Pearson, 551 S.E.2d 471, 475 (N.C. Ct. App. 2001).Therefore, the trial court properly based its decision on the only substantive evidence before it: the testimony of the police officer who had obtained the warrant. Further, the detailed facts contained in the search warrant affidavit created a substantial basis for concluding that probable cause existed to search defendant’s residence.

The court of appeals indicated in this case that no statute or rule would allow for use of an affidavit in a contested hearing of this type; and since the police officer came to testify about the informant's statements,  and was available for cross examination, this in some way evaded the rule on hearsay.

Defendant contended that the trial court erred by admitting a videotape seized during the search that showed him apparently smoking drugs at the residence one week before the search. However, the videotape was properly used to rebut defendant’s claim that he was not in possession of the residence at the time it was searched.

The Court of Appeals also rejected defendant’s contention that the evidence presented at trial was insufficient to support the jury verdicts against him. The evidence supporting an inference that defendant knowingly possessed the drugs found at the residence included the videotape showing defendant smoking drugs at the residence, the informant’s testimony, and defendant’s admissions about his use of the residence. Additionally, the informant’s testimony that defendant exercised control over the residence and gun found within the residence was sufficient to support his convictions for possession of a weapon by a previous offender and possession of a defaced firearm. Further, the evidence that police found drugs and guns in various places throughout the residence was sufficient to support his conviction as a special offender under CRS § 18-18-407(1)(f). The judgment and sentence were affirmed.