22CA1131 Peo v Weaver 10-31-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1131 El Paso County District Court No. 20CR3478 Honorable Catherine Mitchell Helton, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
William Arthur Weaver,
Defendant-Appellant.
JUDGEMENT AFFIRMED
Division V Opinion by JUDGE FREYRE Grove and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 31, 2024
Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, William Arthur Weaver, appeals the judgment of
conviction entered on a jury verdict finding him guilty of first degree
murder as an act of domestic violence and two crime of violence
sentence enhancers. We affirm.
I. Background
¶2 On June 19, 2020, Weaver and the victim, his wife Wendy
Cupit, had a physical altercation that left her dead. Weaver told
police that while drunk, they had a verbal argument the previous
evening that escalated when Cupit assaulted, mocked, and taunted
him. He left the house, then returned, and another argument
ensued. The victim hit him, and in a fit of rage, Weaver tried to
strangle her to death. When that didn’t work, he retrieved a kitchen
knife and stabbed her to death.
¶3 Sometime later, Weaver contacted his ex-wife, J.M.S., via
Facebook Messenger, and said, “[I] just killed [my] wife” and that he
was going to turn himself in. J.M.S. contacted the police, and the
police responded to Weaver’s home. They observed blood on the
front door and saw the victim’s body through a front window. The
police arrested Weaver without incident and questioned him for
three hours. During the interview, Weaver described his
1 relationship with the victim, the events leading to their argument,
and how he had killed her. In additional statements that the court
excluded at trial, he described his mental health, past suicide
attempts, and victimization as a child at the hands of his parents.
¶4 The prosecution charged Weaver with first degree murder and
two crime of violence counts, and the jury convicted him as
charged. The trial court sentenced him to the custody of the
Department of Corrections for life without the possibility of parole.
¶5 Weaver challenges his conviction on four grounds and alleges
that the trial court erroneously (1) denied his motion to suppress
evidence obtained from the overly broad and general search
warrant; (2) admitted the victim’s “in life” photograph; (3) admitted
an exhibit containing impermissible character evidence; and (4)
excluded his statements to the police concerning his mental health.
He also contends that the cumulative effect of these errors requires
reversal. We address and reject each of his contentions.
II. Search Warrant
¶6 Relying on People v. Coke, 2020 CO 28, Weaver first contends
that the evidence obtained from the search of his cell phone violated
his constitutional rights under the Fourth Amendment to the
2 United States Constitution and article II, section 7 of the Colorado
Constitution because the warrant was overbroad, generalized, and
lacked particularity. We are not persuaded.
A. Additional Facts
¶7 After the police arrested Weaver, they seized his cell phone
along with two Cricket cell phones found in the house. During
Weaver’s interview, he gave the police the pass code to his phone
and said, “You can go through it, I don’t care.” He also confirmed
he had messaged his ex-wife and told her he had killed his wife and
said he had messaged other friends with the same information.
¶8 The police then sought a search warrant for all three phones.
In the affidavit, the detective recited Weaver’s statement that he
messaged his ex-wife saying he had killed his current wife and was
getting ready to turn himself in, and that he had messaged others
with the same information. The detective also described
conversations with witnesses who knew the victim, who had seen
previous injuries on her, and who were familiar with the couple’s
domestic violence history. Those witnesses said the victim had
kicked Weaver out of the house but let him return approximately
one week before the homicide.
3 ¶9 The detective requested six months of data from the phones
because he had reason to believe there was a history of domestic
violence. Specifically, the warrant sought the following:
• audio and video clips related to the criminal activity.
• data that may identify the owner or user of the cellular
communication device(s);
• call histories, call logs and visual voicemail related to the
criminal activity, as found in the cellular communication
device(s);
• photographs and associated metadata related to the
• texts, multimedia messages, recorded messages and
subscriber information modules between the cell phone
owner and co-conspirators involved in the criminal activity,
as found in the cellular communication device(s);
• email messages and attachments, whether read or unread
and related to the criminal activity, as found in the cellular
4 • internet browser files including, but not limited to, browser
history, browser cache, stored cookies, browser favorites,
auto-complete form history, and stored password(s); and
• global positioning system data including, but not limited to,
coordinates, way points, and tracks.
¶ 10 Before trial, Weaver moved to suppress all evidence seized
from the phones, arguing that the warrant “was unconstitutional as
it was not particular, but, instead, allowed for a general exploratory
search.” After a hearing, the trial court denied the motion and
found that while there was a lot of information contained in a cell
phone, the detective had given proper reasoning for why a six-
month time frame was requested. The trial court also noted that
Weaver and his wife were together for three years, and that a
witness said she had reason to believe domestic violence occurred
as early as “several months ago.”
¶ 11 Finally, the court noted that while law enforcement officers
had to describe or identify the items to be searched with
particularity, there was not always a specific date as to when things
occurred. It found that six months was reasonable, given the
evidence of a history of domestic violence between the parties.
5 B. Standard of Review and Applicable Law
¶ 12 The suppression of evidence presents a mixed question of law
and fact. People v. Thompson, 2021 CO 15, ¶ 15. We defer to the
trial court’s factual findings if they are supported by competent
evidence, but we review the legal effect of those findings de novo.
Id. A constitutional error requires reversal if “there is a reasonable
possibility that the [error] might have contributed to the conviction.”
Hagos v. People, 2012 CO 63, ¶ 11 (quoting Chapman v. California,
386 U.S. 18, 24 (1967)).
¶ 13 The United States and Colorado Constitutions protect
individuals against “unreasonable searches and seizures.” U.S
Const. amend. IV; Colo. Const. art. II, § 7. When analyzing the
legality of a search, the touchstone is reasonableness. People v.
Davis, 2019 CO 24, ¶ 15. And reasonableness generally requires a
warrant. Id. at ¶ 16.
¶ 14 A lawful search warrant must describe with particularity both
“the place to be searched” and “the things to be seized.” People v.
Pacheco, 175 P.3d 91, 94 (Colo. 2006). Particularity limits the
government’s discretion in examining private information and
prohibits general exploratory rummaging. People v. Seymour, 2023
6 CO 53, ¶ 44. To satisfy particularity, a cell phone search warrant
must include specific limitations based on (1) the type of alleged
criminal activity; (2) the identity of the alleged victim; and (3) if
applicable, the timeframe within which the suspected crime
occurred. People v. Herrera, 2015 CO 60, ¶ 20; see also Coke, ¶ 34
(finding insufficient particularity where the warrant permitted the
officers to search all texts, videos, pictures, contact lists, phone
records, and any data based on ownership absent a specific or
reasonable timeframe).
¶ 15 However, “a warrant doesn’t lack particularity simply because
it is broad.” Seymour, ¶ 46. “Likewise, a search isn’t
unconstitutional simply because the government, in some lightning-
fast, digital sense, very cursorily examines unrelated documents.”
Id. at ¶ 47. “Even when a warrant is adequately particularized, ‘it is
certain that some innocuous documents will be examined . . . to
determine whether they are, in fact, among those papers authorized
to be seized.’” Id. (quoting Andresen v. Maryland, 427 U.S. 463, 482
n.11 (1976)).
¶ 16 The warrant’s description of the property to be seized should
permit the officer charged with executing the warrant to know with
7 a reasonable degree of certainty what should be seized. Coke, ¶ 34.
Given modern cell phones’ immense storage capacities and ability to
collect and store many distinct types of data in one place, courts
have recognized that cell phones “hold for many Americans ‘the
privacies of life’” and are, therefore, entitled to special protections
from searches. Id. at ¶ 37 (citation omitted). And a warrant
authorizing the search of a cell phone simply for general indicia of
ownership violates the Fourth Amendment’s particularity
requirement. See Herrera, ¶¶ 4, 18.
C. Analysis
¶ 17 We discern no error in the court’s ruling denying Weaver’s
motion to suppress and conclude the warrant was sufficiently
particular for three reasons. First, unlike in Coke, where the
warrant contained no particulars about the alleged victim or when
the assault occurred, the warrant here identified the victim,
described the crime and when it was committed, and described a
history of domestic violence between Weaver and the victim.
Herrera, ¶ 20.
¶ 18 Second, unlike in Coke, where the warrant contained no time
limitations, the warrant here limited the search to the six months
8 preceding the homicide and thus, constituted a reasonable period to
document the domestic violence history described by Weaver and
other witnesses.
¶ 19 Third, unlike in Coke, where the warrant permitted police to
search for any and all information without limitation, the warrant
here limited most of the data to be searched to the criminal activity
described in the affidavit. And to the extent the warrant permitted
a search of global positioning and internet searches beyond the
crime itself, we discern no constitutional violation because the
search was limited to a six-month timeframe and limited to a
narrow subset of information. Seymour, ¶¶ 16-18, 43.
¶ 20 To the extent Weaver argues that the use of the Cellebrite
software to download all information contained in the phones
violated the particularity requirement, we are not persuaded. The
forensic examiner explained that Cellebrite downloaded and
converted the data in the phones into a readable format that was
then provided to the detective. The detective then searched the
data consistent with the limitations listed in the search warrant.
The fact that the detective may have observed data not covered by
9 the warrant does not render the warrant overly broad or
unconstitutional. Seymour, ¶ 46.
¶ 21 Accordingly, we discern no error in the court’s ruling denying
Weaver’s motion to suppress the search.
III. “In Life” Photograph
¶ 22 Weaver next contends the trial court erroneously admitted an
“in life” photograph of the victim and reasons that any probative
value was substantially outweighed by its prejudicial effect. We
disagree.
¶ 23 Before trial, Weaver asked the prosecutor to provide notice of
all “in life” photographs it planned to admit. Counsel argued any
“in life” photograph lacked relevance because the victim’s status as
a living person was not disputed and could be established through
other eyewitness testimony. Counsel further argued under CRE
403 that such photos might inflame the passions of the jury and
unfairly prejudice Weaver. The prosecutor disclosed two “in life”
photographs, one that depicted the victim with her children and
another showing only the victim.
10 ¶ 24 The court concluded that one “in life” photo (the one without
the children) was admissible because it was relevant “to establish
that the victim was alive prior to the charged incident” and was not
unduly prejudicial. The court admitted the photo over the defense’s
objection.
B. Standard of Review and Applicable Law
¶ 25 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Melillo, 25 P.3d 769, 773 (Colo. 2001). An
abuse of discretion occurs when a trial court’s ruling is manifestly
arbitrary, unreasonable, or unfair. Id.
¶ 26 To be admissible, evidence must be relevant. CRE 402.
Evidence is relevant when it has “any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.” CRE 401. A trial court may exclude logically
relevant evidence “if its probative value is substantially outweighed
by the danger of unfair prejudice.” CRE 403. While CRE 403’s
balancing test favors the admission of evidence, the rule helps
preclude issues of little or cumulative probative force. Yusem v.
People, 210 P.3d 458, 467 (Colo. 2009) (citation omitted). Unfairly
11 prejudicial evidence has “an undue tendency to suggest a decision
on an improper basis, commonly but not necessarily an emotional
one, such as sympathy, hatred, contempt, retribution, or horror.”
Masters v. People, 58 P.3d 979, 1001 (Colo. 2002) (citation omitted).
¶ 27 Photographs are admissible if they depict relevant facts and
are not unnecessarily inflammatory to incite the jury to unfair
prejudice against the defendant. See People v. Moreland, 567 P.2d
355, 360 (1977). Numerous Colorado decisions have held that “in
life” photographs of homicide victims are admissible. See People v.
Loscutoff, 661 P.2d 274, 277 (Colo. 1983) (finding no abuse of
discretion in admitting photographs of a murder victim and her
young son, taken several months before the murder); People v.
Clary, 950 P.2d 654, 658 (Colo. App. 1997) (finding no abuse of
discretion in admitting enlarged school photograph of victim);
People v. T.R., 860 P.2d 559, 562 (Colo. App. 1993) (finding no
abuse of discretion in admitting photographs of victim and her
husband taken eight months before the victim was killed).
¶ 28 We discern no abuse of discretion in the court’s admission of
the victim’s “in life” photo, for two reasons.
12 ¶ 29 First, the photo assisted the prosecution in meeting its burden
to prove the victim was alive and that Weaver caused her death.
People v. McClelland, 2015 COA 1, ¶ 49 (finding that victim’s “in
life” photo was relevant to proving charges of murder and reckless
manslaughter). Moreover, the photo was probative of the victim’s
identity because her son’s testimony connected the person depicted
in the photo to the deceased victim. See State v. Broberg, 677 A.2d
602, 610 (Md. 1996). Additionally, the photo was relevant to show
how the victim appeared before suffering the fatal injuries.
¶ 30 We are not persuaded by Weaver’s argument that, as in
McClelland, the probative value of the photograph was substantially
outweighed by the risk of unfair prejudice. The McClelland division
found three “in life” photos of the victim with family members
unfairly prejudicial because the defendant asserted self-defense and
defense of others at trial, making the victim’s demeanor
immediately before the shooting a crucial issue. Id. at ¶¶ 38, 55.
The division concluded the jury saw “a different image than that
presented by the eyewitness testimony[,]” on which the prosecution
was able to “unfairly capitalize” during its opening and closing
statements. Id. at ¶¶ 51-55.
13 ¶ 31 Unlike McClelland, the trial court here properly exercised its
discretion to admit a single “in life” photo that depicted only the
victim. The fact that Weaver asserted self-defense does not render
the photo unfairly prejudicial given his statement that he strangled
and stabbed the victim multiple times after she slapped him.
Moreover, the prosecutor did not rely on the photo to elicit the
jury’s sympathy for the victim in closing argument.
¶ 32 Second, we are not convinced that an otherwise relevant “in
life” photograph becomes inadmissible when the defendant
concedes identity or the fact and cause of the victim’s death. Clary,
950 P.2d at 658; T.R., 860 P.2d at 562-63; Wilks v. State, 2002 WY
100, ¶ 13.
¶ 33 Accordingly, we discern no error in the admission of the
victim’s “in life” photograph.
IV. Text Message
¶ 34 Weaver next contends that the trial court erroneously
admitted a text message he sent to the victim and then
compounded the error when it did not permit admission of other
“contextualizing” text messages, under the rule of completeness.
We are not persuaded.
14 A. Additional Facts
¶ 35 Before trial, the prosecution disclosed a text message from
Weaver to the victim it intended to admit at trial that read, “I’m a
little sad. I’m kind afraid you’ll fall in love with Mike (is that right?)
and you’ll leave me. But just tell me if it happens. I’ll love you
forever anyway, even if we’re not together.”
¶ 36 Weaver objected and argued that the message was irrelevant
and inadmissible under CRE 404(b). Alternatively, he argued that if
the message was admitted, then he should be able to admit other
text messages in the days before this message under CRE 106 and
the rule of completeness.
¶ 37 Weaver sought to admit the following messages, under CRE
106:
June 10 – Sent from Messenger William Weaver: You were very mean just now. I’m sorry I can’t solve all your problems. I do try. but what you really need is money. So go hsve [sic] fun.
June 13 Wendy Werlinger Cupit: Sorry I dont [sic] remember anything. Im [sic] sorry obviously I drank too much. Please forgive me.
15 Where are you? Please come back.
June 14 – Sent from Messenger William Weaver: I’m a little sad. I’m kind of afraid you’ll fall in love with Mike (is that right?) and you’ll leave me. But just tell me if it happens. I’ll love you forever anyway, even if we’re not together.
¶ 38 The trial court granted the prosecution’s request but denied
Weaver’s request to admit the previous messages, finding “these
messages [are not] appropriate under the rule of completeness.”
¶ 39 Weaver moved for reconsideration and argued the message
constituted impermissible character evidence (evidence of jealousy)
under CRE 404(a). The court disagreed and found the message was
not improper character evidence because it merely expressed how
Weaver felt.
¶ 40 As stated above in Part III, we review evidentiary errors for an
abuse of discretion, and we disregard an error unless it
substantially influenced the verdict or fairness of the trial.
Gonzales v. People, 2020 CO 71, ¶ 25; Hagos, ¶ 12.
¶ 41 Under CRE 404(a), with certain limited exceptions, “[e]vidence
of a person’s character or a trait of his character is not admissible
16 for the purpose of proving that he acted in conformity therewith on
a particular occasion.” Thus, a person’s character may not be
placed before the jury unless such person makes their character an
issue. See CRE 404(a)(1).
¶ 42 Additionally, CRE 404(b) provides that “[e]vidence of any other
crime, wrong, or act is not admissible to prove a person’s character
in order to show that on a particular occasion the person acted in
conformity with the character” but may be admissible for purposes
such as “proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”
¶ 43 CRE 106 codified the common law rule of completeness which
provides that “[w]hen a writing or recorded statement or part
thereof is introduced by a party, an adverse party may require him
at that time to introduce any other part or any other writing or
recorded statement which ought in fairness to be considered
contemporaneously with it.” CRE 106; see also McLaughlin, ¶ 4,
530 P.3d at 1207. If admitting only one part of a written or recorded
statement would be unfair or misleading, the rule of completeness
favors admission of the remaining parts of the statement. Id.
17 C. Analysis
¶ 44 We discern no abuse of discretion in the trial court’s
admission of the text message to the victim or in its decision not to
admit other text messages, for three reasons.
¶ 45 First, to the extent Weaver asserts a CRE 404(b) violation, we
reject it. The message does not reflect any bad conduct, but
instead, reflects Weaver’s feelings at the time it was sent. CRE
404(b); see also People v. Casias, 2012 COA 117, ¶46.
¶ 46 Second, we are not convinced that the message constitutes
character evidence, let alone bad character evidence. Contrary to
Weaver’s argument, it was reasonable for the trial court to conclude
that the tone of the message reflects acceptance of the status of the
couple’s relationship, not jealousy, and was relevant to rebut
Weaver’s defense that he killed the victim under a sudden heat of
passion. People v. Helms, 2016 COA 90, ¶ 48 (finding defendant’s
statement not admitted as bad character evidence but to rebut his
defense). Moreover, the prosecution did not admit the message to
show Weaver possessed a jealous character. People v. Trujillo, 2015
COA 22, ¶ 13. Nor did the prosecutor argue Weaver’s jealous
character as evidence of his guilt in closing argument.
18 ¶ 47 Third, we conclude the message did not create a misleading
impression and thus, there was no reason for the court to admit the
messages that preceded it under CRE 106. The admitted message
revealed there were marital problems, and the messages before shed
no additional light on those problems. Indeed, the tone of Weaver’s
excluded June 10 message casts him as the jealous spouse to a
much larger degree than the admitted message. Therefore, in our
view, Weaver benefitted from the exclusion of that message. Absent
the existence of a misleading impression, we discern no abuse of
discretion in the court’s refusal to admit the additional text
messages.
V. Redacted Statements
¶ 48 Weaver last contends that the trial court erroneously redacted
from his police interview statements he made about his state of
mind and demeanor.
¶ 49 Before trial, the prosecution sought to exclude statements
regarding suicidal ideation and childhood trauma from Weaver’s
interview with the police. During that interview, Weaver described
previous victimization and said if he remained at the jail, he would
19 likely become suicidal and that he was not nearly as composed as
he appeared. He explained that no one cared about him in life and
that no one would care if he died. The defense argued the
statements were relevant to Weaver’s state of mind at the time of
the homicide and the time of the interrogation.
¶ 50 The court found the statements were not relevant to what the
prosecution had to prove or to Weaver’s defenses. It noted that
Weaver had not asserted a mental health defense and that any
limited probative value they might have was outweighed by the
danger of unfair prejudice.
¶ 51 As previously stated, we review a trial court’s evidentiary
rulings for an abuse of discretion and any error under the
nonconstitutional harmless error standard. Campbell v. People,
2019 CO 66, ¶ 21; Hagos, ¶ 12.
¶ 52 “‘Relevant evidence’ means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.” CRE 401. But evidence of a
mental disease or defect is only admissible when a defendant enters
20 a not guilty by reason of insanity plea. People v. Moore, 2021 CO
26, ¶ 44. Further, a person may use “[d]eadly physical force” if he
“reasonably believes a lesser degree of force is inadequate” and if he
“has reasonable ground to believe, and does believe, that he . . . is
in imminent danger of being killed or of receiving great bodily
injury.” § 18-1-704(2)(a), C.R.S. 2024. Therefore, self-defense
considers both the reasonable belief and the actual belief of the
defendant. People v. Darbe, 62 P.3d 1006, 1010 (Colo. App. 2002).
¶ 53 We conclude that all but one of the statements were properly
redacted, for three reasons. First, Weaver defended the case under
a self-defense theory, which requires examining a defendant’s state
of mind at the time of the act. Weaver does not explain how feeling
suicidal after the killing was relevant to or supported that theory.
Thus, we agree with the trial court that the statements were not
relevant to this defense theory.
¶ 54 Second, we are not convinced that the statements were
necessary to rebut the prosecution’s argument that the killing was
deliberate and intentional. The jury heard Weaver’s description to
the police that he acted out of a sudden heat of passion and in self-
21 defense, and he told the police about all his actions between the
time the victim died and the time the police arrived at his house.
The fact that Weaver felt suicidal after the killing does not make it
more or less likely that he acted deliberately or under a sudden
heat of passion. And, as noted by the trial court, Weaver never
endorsed a mental health defense or pleaded not guilty by reason of
insanity.
¶ 55 Nevertheless, of the excluded statements, the one concerning
his demeanor during the interview — that he was not as composed
as it seemed — was arguably relevant to rebut the prosecution’s
argument that he was calm, cool, and collected and, therefore,
acted deliberately in killing the victim. But even assuming the
court erred in excluding this statement, we conclude it was
harmless and does not require reversal because the record contains
overwhelming evidence of deliberation from Weaver’s own
description of the crime.
¶ 56 Finally, Weaver has not explained, nor can we discern, how
childhood trauma he suffered years earlier related to the events in
this case. Accordingly, we discern no error in the court’s exclusion
of these statements.
22 VI. Cumulative Error
¶ 57 Finally, because we have found that no errors occurred, we
necessarily reject Weaver’s cumulative error argument. People v.
Walton, 167 P.3d 163, 169 (Colo. App. 2007) (in the absence of
multiple errors whose effect can be compounded, cumulative error
does not exist).
VII. Disposition
¶ 58 The judgment is affirmed.
JUDGE GROVE and JUDGE LUM concur.