Opinion
No. 76-516 No. 76-517
Decided June 9, 1977. Rehearing denied June 30, 1977. Certiorari denied September 6, 1977.
From jury conviction of two counts of drug possession, and from subsequent revocation or probation, defendant appealed.
Judgment and Sentence Affirmed
1. CRIMINAL LAW — Search Warrant — Multi-Unit Structure — Affidavit — Specified Living Unit — Executed by Officer — Procuring Issuance — Evidence Obtained — Properly Not Suppressed. Ordinarily a search warrant of a multi-unit structure which does not specify a particular subunit is constitutionally defective; however, where affidavit for warrant specified that only the single apartment located in the upstairs portion of the apartment building was that for which the warrant was desired, and where the warrant was thereafter executed by the officer who procured its issuance, the affidavit contained sufficiently specific information to uphold its issuance, and the evidence obtained in the resulting search did not need to be suppressed merely because the warrant contained only a general description of the place to be searched.
2. Possession of Drugs — Evidence of Residency — Apartment — Where Contraband Found — Sufficient — Preclude — Judgment of Acquittal. Where, in prosecution for possession of drugs, there was evidence that at the time of the drug seizure, defendant was living in and paying rent on the apartment where the contraband was found, that evidence was sufficient relative to defendant's knowing exercise of dominion and control over the contraband so as to preclude entry of judgment of acquittal.
3. Hearsay Evidence — Issue of Defendant's Residency — Mistrial Denied — — Prosecution Assurances — Other Evidence Presented — Same Issue — No Error. Where, in drug possession trial, a witness began to narrate a hearsay affirmative response of an unnamed person as to where defendant resided, but a mistrial was denied on the basis of the prosecution's assurances that other evidence of defendant's residency in the building would later be introduced, and such evidence was later admitted, the denial of a mistrial was not error.
4. Chain of Custody — Trial Court Statement — Evidence Sufficient — Presence of Jury — Curative Instruction Given — Denial of Mistrial — No Abuse of Discretion. Where, in passing on admissibility of contraband in drug possession trial, the trial court indicated in the presence of the jury that the chain of custody as to the contraband was sufficient, but gave a contemporaneous curative instruction advising the jury as to its responsibility to determine whether an adequate chain of evidence was established irrespective of the court's ruling as to admissibility, that procedure was within the scope of the trial court's discretion, and thus the denial of a mistrial because of the court's remarks was not reversible error.
5. Probation Revocation — "Convicted" — Meaning of Term — Upon Trial — Not — Appellate Remedies Exhausted. For the purposes of probation revocation, a person is "convicted" when he is convicted upon trial, rather than when all his appellate remedies are exhausted.
Appeal from the District Court of the City and County of Denver, No. 76-516, Honorable Robert P. Fullerton, Judge. No. 76-517, Honorable James C. Flanigan, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dufofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, J. Stephen Phillips, Assistant Attorney General, James Thompson, Assistant Attorney General, for plaintiff-appellee.
David B. Savitz, for defendant-appellant.
Defendant, George Salazar, appeals a judgment of conviction of two counts of drug possession entered upon a jury verdict. He also appeals from the trial court's subsequent revocation of probation and refusal to stay execution of the sentence. We affirm.
I.
Defendant first argues that the trial court should have suppressed certain evidence seized under a search warrant that defendant asserts was insufficient on its face because it described the place to be searched by street address only, even though there were at least two apartments at the location. We find no error.
[1] Ordinarily a search warrant for a multi-unit structure which does not specify a particular subunit is constitutionally defective. People v. Avery, 173 Colo. 315, 478 P.2d 310 (1970). However, here the affidavit for the warrant specified that only the single apartment located in the upstairs portion of the building was that for which the warrant was desired. The warrant was thereafter executed by the officer who procured its issuance. Thus, since the affidavit contains sufficiently specific information to uphold issuance, evidence obtained in the resulting search need not be suppressed simply because the warrant contains only a general description of the place to be searched. See People v. Maes, 176 Colo. 430, 491 P.2d 59 (1971); People v. Lucero, 174 Colo. 278, 483 P.2d 968 (1971). Cf. People v. Alarid, 174 Colo. 289, 483 P.2d 1331 (1971). See generally Annot., 11 A.L.R. 3d 1330 (1967).
II.
[2] Defendant next alleges as error the trial court's failure to direct judgment of acquittal, urging the alleged insufficiency of the evidence as to defendant's knowing exercise of dominion and control over the contraband. See, e.g., Johns v. People, 179 Colo. 8, 497 P.2d 1253 (1972). Here, however, there was adequate evidence to warrant submission to the jury of the issue of defendant's guilt or innocence. Despite defense testimony to the contrary, there was evidence that at the time of the seizure, defendant was living in and paying rent on the apartment where the contraband was found. This evidence precluded entry of judgment of acquittal. See People v. Vigil, 175 Colo. 421, 489 P.2d 593 (1971). See also People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973).
III.
Defendant contends that the trial court erred in not declaring a mistrial because of allegedly improper comments made by a prosecution witness and by the court. No error was committed.
[3] The witness, a police detective, began to narrate the hearsay affirmative response of an unnamed person in the building as to whether defendant resided there. Mistrial was denied on the prosecution's representation that other evidence of residency would later be introduced, as was done. We will not overturn a conviction under these circumstances. Gonzales v. People, 156 Colo. 252, 398 P.2d 236 (1965), cert. denied, 381 U.S. 945, 85 S.Ct. 1788, 14 L.Ed.2d 709 (1965).
[4] The challenged commentary of the court followed a defense objection to admissibility of the contraband, based on an allegedly inadequate showing of chain of custody. No point of error is raised here as to the break in the chain of custody. The objection runs only to the remarks of the trial judge. In passing on admissibility, the court indicated in the presence of the jury that the chain of custody was sufficient. A defense motion for mistrial was denied, but a contemporaneous curative instruction was given advising the jury as to its responsibility to determine whether an adequate chain of evidence was established despite the court's ruling as to admissibility. This procedure was within the scope of the trial court's discretion, and under these circumstances, we do not view the denial of mistrial to be reversible error. McCune v. People, 179 Colo. 262, 499 P.2d 1184 (1972). See also People v. Goff, 187 Colo. 57, 530 P.2d 512 (1974).
IV.
[5] Finally, defendant contends that the trial court erred in revoking defendant's probation and in refusing to stay execution of sentence, arguing that a person is not "convicted" for the purposes of probation revocation under § 16-11-206(3), C.R.S. 1973, until appellate remedies are exhausted. While we recognize that this statute has not been interpreted previously, we rule that the rationale adopted by our Supreme Court in People v. District Court, 191 Colo. 558, 554 P.2d 1105 (1976), should control here. In that case the court held that:
"In the statute under consideration the legislative intent is apparent that the term 'convicted' means convicted upon trial . . . .
"In addition to the foregoing reasons, mention should be made that at the time of this enactment Crim. P. 32(c) was in effect. It provides:
'(c) Judgment. A judgment of conviction shall consist of a recital of the plea, the verdict or findings, the sentence, and cost if any are awarded against the defendant.' "
Additionally the statute before us specifically provides that probation can be revoked even prior to conviction. Hence, the trial court's ruling was correct. See also People v. Ray, 192 Colo. 391, 560 P.2d 74 (1977); People v. District Court, 192 Colo. 375, 559 P.2d 235 (1977).
Judgment and sentence affirmed.
JUDGE RULAND and JUDGE VAN CISE concur.