Opinion
Rehearing Denied Nov. 20, 1975.
Page 722
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Page 723
J. D. MacFarlane, Atty. Gen., Jean E. Dobofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Thomas J. Tomazin, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, Forrest W. Lewis, Deputy State Public Defender, Denver, for defendant-appellant.
PIERCE, Judge.
Defendant Dennis Louis Hogland was convicted on two counts of first-degree burglary, four counts of aggravated robbery, three counts of menacing, and four counts of first-degree kidnapping. He was sentenced to not less than 23 nor more than 30 years in the Penitentiary. He appeals from both the conviction and the sentence. We affirm.
All 13 of the felony counts arose out of criminal activities engaged in during the course of a single night. A man with a stocking over his head, later identified as the defendant, confronted a Mr. Benton Tibbets at 11:30 P.M. outside the latter's home. The man escorted Mr. Tibbets into the house. Once inside, Mr. Tibbets and the other family members were bound, and were then robbed of several items including cash and credit cards.
Shortly after midnight, in a nearby nighborhood, Mrs. Vivian Black answered her doorbell and opened the door to a man she thought to be a policeman. She and her family were then bound with wire, gagged with cotton and tape, robbed, and kidnapped. Their automobile was stolen and they were confined in another vehicle where they were rescued a few hours later by police.
Later that night, the defendant, his brother, and a third man were apprehended as the result of a traffic violation committed by the defendant, who was driving a car registered to Mr. Black. The men and the vehicle were searched at the scene of the arrest, and officers discovered firearms, shells, wire, wire cutters, tape, cotton balls, a fireman's badge, a gun belt, a security guard hat, a sum of money, and a large number of credit cards issued to black and Tibbets. The men were arrested for investigation of auto theft and for carrying concealed weapons. Although they were never prosecuted on these particular charges, criminal proceedings were brought against them for offenses perpetrated upon the Tibbets and Black families. I.
The defendant first alleges as error the trial court's refusal to grant a defense motion for suppression of evidence seized during the searches of the defendant, the other occupants of the vehicle, and the vehicle itself.
The circumstances of the search follow. Two officers were parked on the street at approximately 3:00 A.M. when a car pulled up behind their vehicle and then proceeded on. A short time thereafter, the officers saw the same car in the parking lot of a shopping center. None of the stores in the center were open at that time. The officers followed the car at it left the center, their suspicions having been aroused by the presence of the automobile in the center at that early hour. They stopped the vehicle when the driver, later identified as the defendant, allegedly disregarded a stop sign.
The defendant got out of the car and approached the officer in a hurried manner. One of the officers asked the defendant for his driver's license. The defendant stated that he did not have one. The officer then asked who owned the vehicle. The defendant answered that he did not know. The inquiring officer told his partner that the car might be stolen, and proceeded to conduct a pat-down search of the defendant, finding a box of shells and the credit cards issued to Black and Tibbets. The other officer ordered the two passengers from the vehicle and frisked them, finding that both were armed.
The officers then announced that all three men were under arrest for investigation of auto theft and carrying concealed weapons. The officers radioed for assistance and ran a check on the ownership of the car, learning that it belonged to Mr. Black. The officers then searched the car looking for additional weapons. Weapons were found, along with other paraphernalia linking the defendant with the offenses against the Tibbets and Blacks.
The defendant argues that the search of his person was invalid whether characterized as a search incident to arrest of as a frisk, because no probable cause for an arrest existed to justify the search, and because the search exceeded the scope of the pat-down search on less than probable cause as authorized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Defendant urges that there was insufficient probable cause to arrest him for auto theft at the time of the search, and that at best the officer had probable cause only to believe that the defendant had violated a traffic ordinance, which would not justify a warrantless search for evidence of an unrelated criminal act. The defendant further contends that the frisk of the other occupants of the car and the search of the vehicle were likewise invalid for lack of probable cause, and that therefore all of the evidence seized as a consequence of those searches should have been suppressed. We disagree.
Although it is undisputed that the officers had probable cause to suspect that the defendant had committed the traffic offenses of disregarding a stop sign and driving without a valid operator's license, the record reveals that the officers apparently based their search on the suspicion that the defendant had committed the offense of auto theft. Thus, the issue presented here is whether the officers had probable cause to arrest the defendant for auto theft at the time of the search of his person.
Although the defendant had obviously been driving the automobile, he stated, without further explanation, that he did not know who owned it and that he had no driver's license. These circumstances were such as would reasonably justify a police officer's belief that a theft had probably been committed. Lucero v. People, 165 Colo. 315, 438 P.2d 693. Thus the arresting officers had probable cause to arrest the defendant on the felony charge of theft, and the search of his person incident to that arrest was therefore valid. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. Since we hold that the search was incident to a valid arrest, we do not need to consider whether the search could be upheld as a Terry-frisk.
II.
The search of the other occupants of the car and of the vehicle itself must be judged by different criteria. In order to have standing to object to a search, a party must qualify as a 'person aggrieved' as defined by Crim.P. 41(e), and in order to do so must show that the search invaded a justifiable personal expectation of privacy. See People v. Towers, 176 Colo. 295, 490 P.2d 302. The defendant here lacks standing to challenge the search of the other occupants of the car, as the search of those persons did not violate his rights. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.
Similarly, the defendant cannot challenge the search of the automobile where he admittedly claims no possessory interest in the vehicle, People v. Trusty, 183 Colo. 291, 516 P.2d 423, where he was not charged with a possessory offense in connection with the search, and where he could not qualify as a person legitimately on the premises at the time of the intrusion. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. The defendant had the burden of proving that his presence in the automobile registered to Mr. Black was legitimate, People v. Trusty, supra; that burden was not sustained here.
III.
The defendant next contends that the trial court erred in admitting an incriminating statement made by him. He asserts that the prosecution failed to establish that he had been fully advised of his rights or that he had knowingly and intelligently waived those rights, and he argues that the statement made was the product of coercion.
The defendant testified that he had been subjected to physical abuse by members of the Denver Police Department prior to questioning by agents of the Federal Bureau of Investigation. He also claimed that he had made the inculpatory statement in response to promises made by agents that they would try to arrange his being able to see his brother, who was in the custody of the Denver Police. He argues that the prosecution failed to establish that he understood his rights prior to questioning, and contends that these circumstances demonstrate that he was coerced into making the incriminating statement. We disagree.
The issue of physical abuse was considered by the trial court and resolved against the defendant. Much of the evidence presented at the suppression hearing was disputed. The essential matter to be resolved at the hearing was the credibility of witnesses who testified regarding the treatment defendant received prior to interrogation. This question is properly determined by the trial court. People v. Stephenson, Colo., 528 P.2d 1313.
The record fully supports the trial court's finding that the defendant was properly advised of his rights, and that his statement was voluntary. Two F.B.I. agents orally advised the defendant of his rights prior to questioning. He received a printed advisement form and a waiver of rights, and signed them after stating that he understood their content. The defendant was then questioned for approximately one hour during which time he made an oral confession. While this interrogation was in progress he did not request an attorney nor an end to the questioning. Although the defendant did not orally state that he waived his rights, the facts here establish an effective equivalent of an express waiver. See Reed v. People, 171 Colo. 421, 467 P.2d 809.
We also note that the defendant had been advised of his rights at the time of several prior arrests which fact is further supportive of the trial court's determination that he understood his rights. See People v. Allen, Colo., 523 P.2d 131; Mingo v. People, 171 Colo. 474, 468 P.2d 849. The record also supports that trial court's finding that the statement was voluntarily given and was not the product of coercion. The promises allegedly made by the agents to permit the defendant to see his brother did not represent improper influence inducing hope or fear in the mind of the defendant, See Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568, and did not rise to the indignity of the threats, trickery, or cajolery condemned in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The allegation that the agents promised the defendant that he could see his brother after making a statement is insufficient in itself to render an otherwise voluntary confession inadmissible.
IV.
The defendant's third allegation of error is that the trial court improperly refused to submit certain instructions tendered by the defendant. He asserts that second-degree kidnapping and criminal intimidation and lesser included offenses of first-degree kidnapping, that menacing is a lesser included offense of aggravated robbery, and that the evidence on the record supports instructions on such lesser included offenses.
However, the record before us contains no evidence warranting a jury verdict of guilty on either of the above lesser crimes and acquittal on the greater offense charged. See People v. Reed, 180 Colo. 16, 502 P.2d 952; People v. Velasquez, 178 Colo. 264, 497 P.2d 12; People v. Futamata, 140 Colo. 233, 343 P.2d 1058; s 18--1--408, C.R.S.1973. A defendant is entitled to an instruction on a lesser included offense only where there is evidence on the record to support such an instruction. People v. Ross, 179 Colo. 293, 500 P.2d 127. Hence, without addressing the issue of whether the lesser offenses are included in the greater offenses, we conclude that it was not error for the trial court to refuse to submit the tendered instructions to the jury.
V.
Defendant next argues that the trial court erred in failing to instruct the jury that the requirement of specific intent is applicable to all elements of each offense. See Colorado Jury Instructions (Criminal) 5:110.
He submits that no contemporaneous objection was made on this basis, nor was a proposed instruction on specific intent tendered. He asserts, however, that the failure to instruct the jury properly on specific intent is tantamount to a failure to instruct the jury as to the essential elements of the crime charged, and citing People v. Archuleta, 180 Colo. 156, 503 P.2d 346, he claims this failure is plain error to be considered even though raised for the first time on appeal. This argument is without merit.
Even if the propriety of these instructions could be considered on appeal, the instructions given were sufficient. See People v. Bowen, 182 Colo. 294, 512 P.2d 1157. The tendered instructions were phrased in the language of the relevant statutes, and set forth the requisite intent necessary for each offense. An explanatory instruction dealing expressly with the concept of specific intent was submitted to the jury as well. When these instructions are read together, it is apparent that the jury was adequately informed as to the applicable law, including specific intent. Blincoe v. People, 178 Colo. 34, 494 P.2d 1285.
VI.
Finally, the defendant contends that the sentence of 23 to 30 years was excessively harsh. Although we have the power to review the sentence under s 18--1--409, C.R.S.1973, the boundaries of such review are narrow. Where the sentences imposed are within the statutory limits proscribed for the respective offenses, and there is no showing of an abuse of discretion by the trial court, the sentence will not ordinarily be modified on appeal. People v. Duran, Colo., 533 P.2d 1116.
We have carefully reviewed the nature of the 13 offenses committed, the character of the defendant, the interest of the public in the protection of society and in development of respect for our legal system, the manner in which the sentences were imposed, including the nature of the information upon which the sentence was based, and the defendant's chance for rehabilitation. We conclude that the record fully supports the sentence imposed.
The offenses committed were of ann extremely serious nature. In the course of a single night, the defendant and his accomplices engaged in conduct which disrupted and threatened at least nine lives. The trial court was aware at the time of sentencing that the defendant had a prior record and was in fact on parole at the time the offenses were committed; this factor was properly considered by the trial court in its determination of sentence. In our opinion, the possibility that the defendant could be successfully rehabilitated warranting the imposition of a lesser sentence, of outweighed by the need for protection of the public from the commission of similar criminal acts in the future.
Judgment and sentence affirmed.
VanCISE and STERNBERG, JJ., concur.