Summary
notwithstanding the fact that an exterior evidence bag was not offered into evidence, a sufficient chain of custody was established for marijuana where the detective testified that suspected marijuana was placed in a sealed envelope in his presence and put in the property room, and the analyst testified that she received the envelope with the seal intact
Summary of this case from People v. RodriguezOpinion
Aug. 12, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Evidence was sufficient to sustain conviction of possession of marijuana.
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Louis L. Kelley, Administrative Asst. Atty. Gen., Denver, for plaintiff-appellee.
Peter H. Ney, P.C., John G. Bock, Englewood, for defendant-appellant.
PIERCE, Judge.
Defendant, Johnson, appeals from a conviction on a charge of possession of marijuana. His principal allegation is that the trial court erred in failing to suppress certain evidence gained by what he claims was an illegal search. The marijuana was seized at the premises where he was living at the time of his arrest.
I.
The search warrant in controversy here was issued on the basis of an affidavit filed by a Denver police officer. No issue is raised as to any infirmities in the affidavit or the search warrant issued pursuant thereto other than the address stated on both documents. The pertinent portion of the affidavit reads as follows:
'Det. Weber further stated to your affiant that 740 So. Washington St. is a duplex having a front and rear portion but that there is no address affixed to the rear half of this duplex which is the only portion of this address which Det. Weber observed Jeffrey Downs enter and leave.'
Downs was an alleged intermediary in previous drug buys allegedly occurring on the searched premises.
On the basis of this information in addition to other detailed data regarding the purchase of marijuana and dangerous drugs, a search warrant was issued which sanctioned the search of '740 South Washington St. rear east half.'
The search followed that same night and the defendant was arrested after the marijuana was seized. The dispute arises as to whether '740 South Washington St. rear east half' is a sufficient description of the premises to be searched when in fact the rear east half of the duplex in question bore house number 742. Photographs which are in evidence show that the building in question is readily identifiable as a duplex and that from the street one can discern the house number 740 above the southwest entrance. One can also detect the presence of a house number, presumably 742, over the rear southeast entrance. The building appears to have only these two entrances. The record is silent as to whether the address number over the rear southeast entrance was readily observable at night.
We rule that the description on the search warrant was sufficient. We consider People v. Peppers, 172 Colo. 556, 475 P.2d 337, to be controlling. In that case the warrant read '1537 Vine St. (Second Floor apt. first one on the left hand side (SE corner) (sic).' The Colorado Supreme Court upheld the legality of the search stating:
'This description is sufficient in that any person, upon being presented with the warrant, would have known immediately in which apartment the search was authorized. It seems unrealistic to require the technicality of indicating the number of the apartment to be searched when the location is otherwise indicated with reasonable specificity.'
The description here at issue meets this test.
The duplex character of the structure was important and was properly taken into account in the obtaining of this warrant. See People v. Lucero, 174 Colo. 278, 483 P.2d 968 (concurring opinion of Erickson, J.). With the character of the structure in mind and the description as stated on the warrant, anyone approaching the building from the street with the intent to execute a search pursuant to the warrant would be reasonably directed to enter the entrance at the rear southeast portion of the building, which was in fact number 742. Indeed that was the only portion of the building that was entered and searched. Therefore, the warrant and the search that followed it were entirely proper. Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757.
Defendant Johnson cites People v. Ragulsky, Colo., 518 P.2d 286, as supporting his claim that the description was inadequate, but we find that case to be entirely consistent with our determination on this issue.
II.
The court admitted People's Exhibit B into evidence. It was a clear plastic bag containing marijuana. Because another plastic bag, (Exhibit A), which at one time held Exhibit B and several other exhibits, was never offered into evidence, defendant contends that the chain of custody of Exhibit B was not sufficiently established.
Johnson was convicted of illegally possessing the contents of Exhibit B, which had been recovered from his residence and placed along with several other exhibits in Exhibit A by a detective. The detective testified that Exhibit A had been sealed in his presence and placed in the property section of the Denver police department. A clinical analyst for the police department received Exhibit A with the seal intact. She then broke the seal and analyzed the contents. The analyst identified Exhibit B as having been clinically analyzed by her as marijuana and marked with a laboratory number. It was then dated, heat sealed, and initialed by her.
The detective sufficiently identified Exhibit B and its contents. Thus, further testimony relating to a 'chain of possession' was not necessary, See Washington v. People, 158 Colo. 115, 405 P.2d 735. The handling of this exhibit negated the possibility that the exhibit had been altered, tampered with or that its condition may have been substantially changed.
Furthermore, any alleged weakness in the 'chain of evidence' regarding this particular exhibit would only have gone to its weight, and not to its admissibility. White v. People, 175 Colo. 119, 496 P.2d 4. Therefore, it was not necessary to place Exhibit A into evidence to validate the admission of Exhibit B.
III.
Defendant further argues that he was entitled to a directed verdict at the close of the People's case and again at the close of all the evidence because there was insufficient evidence presented to link this particular defendant sufficiently with the contraband. Again, we disagree.
When the defendant introduced evidence on his own behalf he waived his right to have us rule upon the sufficiency of the People's evidence at the conclusion of the prosecution. People v. Becker, 181 Colo. 384, 509 P.2d 799.
As to the insufficiency of the evidence at the close of the trial, we must review all the evidence presented in the light most favorable to the judgment. Southard v. People, 174 Colo. 324, 483 P.2d 962. There is evidence in the record that one of the witnesses, a detective, attempted to buy marijuana and LSD from this defendant, but the defendant refused to sell any such contraband to the witness because he stated that he did not know the witness and that therefore the witness would have to purchase the drugs through an intermediary. The detective then left the defendant's residence and obtained the search warrant. During the subsequent search, marijuana (Exhibit B) was found in the living room of that portion of the duplex that was occupied by Johnson and a young woman.
At the time of the search, there were two other men on the premises. After being advised of his rights, Johnson stated that these two persons were not in any way involved with the contraband. Further evidence was presented that indicated that there may have been two other persons residing at the 742 address during the same period of time that Johnson and the young woman were living there, but there was no evidence that these other persons were in any way involved in the illegal transaction charged. Evidence was also presented that the dwelling had been leased to Johnson and the young woman whom the landlady assumed was Johnson's wife.
It is Johnson's contention that where marijuana was found in the living room of the apartment and where there was evidence that other persons may have been sharing these common quarters, that there was insufficient evidence to link him to the possession of the contraband. We disagree. There is sufficient direct evidence to show that Johnson had at least partial dominion and control over these premises. People v. Storr, Colo., 527 P.2d 878; People v. Wilkie, Colo., 522 P.2d 727. The renting of the apartment, the discussion with the detective prior to the search, and his statements regarding the innocent parties after his arrest were sufficient independent links to show a prima facie case of his possession of the contraband. We consider these facts sufficient to satisfy the criteria of Feltes v. People, 178 Colo. 409, 498 P.2d 1128; and Petty v. People, 167 Colo. 240, 447 P.2d 217, relied on by Johnson.
Judgment affirmed.
SILVERSTEIN, C.J., and BERMAN, J., concur.