People v. Lewis

671 P.2d 985, 1983 Colo. App. LEXIS 1000
CourtColorado Court of Appeals
DecidedApril 21, 1983
DocketNo. 79CA1069
StatusPublished
Cited by6 cases

This text of 671 P.2d 985 (People v. Lewis) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Lewis, 671 P.2d 985, 1983 Colo. App. LEXIS 1000 (Colo. Ct. App. 1983).

Opinion

KIRSHBAUM, Judge.

Defendant, Harold G. Lewis, appeals his jury conviction of two counts of theft and one count of conspiracy to commit theft. We affirm.

The record reveals the following facts. In February 1978, officers of the Metropolitan Denver District Attorney’s Consumer Office obtained a warrant and conducted a search of the South Colorado Boulevard Office of Allied Research and Marketing, Inc. (Allied). As a result of this search, defendant, an employee of Allied, was charged with theft, conspiracy to commit theft, fraud in effecting sales, and conspiracy to commit fraud in effecting sales.

On October 30, 1978, defendant filed a motion for a bill of particulars and, on February 26,1979, filed an amended motion for a bill of particulars. The trial court denied these motions respecting information not already disclosed to defendant by the prosecution.

On March 9, 1979, the prosecution moved for late endorsement of 14 additional witnesses, including three expert witnesses. The motion was granted except with respect to the three expert witnesses. Defendant then successfully moved for a continuance, expressly waiving his right to speedy trial. On March 16, 1979, the trial court denied defendant’s motion to suppress. On June 6,1979, defendant’s motion to dismiss based on alleged violations of his speedy trial rights was also denied.

I.

Defendant contends that the trial court erred in denying his motion to suppress evidence because the affidavit in support of the search warrant did not meet constitutional standards. We disagree.

An affidavit submitted in support of a request for a search warrant must allege sufficient facts to lead a person of reasonable caution to believe that material evidence of criminal activity is located on the premises to be searched. People v. Ball, 639 P.2d 1078 (Colo.1982). If information is obtained by the affiant police officer from an unidentified informer, the affidavit must state sufficient facts to disclose the basis for the informer’s knowledge of the alleged criminal activity and also must allege adequate circumstances to justify the officer’s belief in the informer’s credibility or reliability. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); People v. Jackson, 189 Colo. 316, 543 P.2d 705 (1975); People v. Montoya, 189 Colo. 106, 538 P.2d 1332 (1975); People v. Peschong, 181 Colo. 29, 506 P.2d 1232 (1973).

Here, the affiant police officers utilized information furnished by citizens named in the affidavit to seek the issuance of the warrant. Thus, “both the credibility of the source and the reliability of the information may be presumed and, therefore, need not be independently established in the affidavit.” People v. Ball, supra. See also People v. Henry, 631 P.2d 1122 (Colo.1981); People v. Glaubman, 175 Colo. 41, 485 P.2d 711 (1971).

The affidavit contains the following statement:

“Since September of 1977 your affiants, Gayle W. Savage and James G. Rickett, Investigators for the Metropolitan District Attorney’s Consumer Office, have [988]*988interviewed clients and prospective clients of Allied Research and Marketing, Inc. ... including Dianna Muegge, Kim Preston, and Charles Brewer, Gordon Collins, Bob Hutchenson, Vicki Linn, and Ben Janacek.”

Asserting that the term “including” is noninclusive, defendant argues that the affiant officers utilized information provided by other, unidentified individuals, thus preventing the issuing magistrate from making independent findings respecting the reliability of the source of such information.

Affidavits for search warrants must be interpreted in a common sense and realistic fashion. People v. Lindholm, 197 Colo. 270, 591 P.2d 1032 (1979). See also United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). We conclude, as did the trial court, that the sources of information in this affidavit were complete, and that no unidentified informants supplied the information contained therein. We also conclude, contrary to defendant’s alternative argument, that the affidavit alleged sufficient facts to support the issuing magistrate’s determination that, at the time the warrant was issued, material evidence of criminal activity was located on the premises to be searched. People v. Hearty, 644 P.2d 302 (Colo.1982); People v. Ball, supra.

II.

Defendant next contends that the prosecution did not afford him the opportunity to negotiate a plea agreement equivalent to that offered similarly situated defendants and that, therefore, the trial court erred in denying his motion to dismiss on these grounds. We disagree.

Section. 16-7-301(3), C.R.S.1973 (1978 RepLVol. 8), states as follows:

“Defendants whose situations are similar should be afforded similar opportunities for plea agreement.”

Crim.P. 11(f)(3) contains identical language.

The authority to pursue plea negotiations in criminal cases is committed to the executive authority of the prosecution. Section 16-7-301(1), C.R.S.1973 (1978 Repl. Vol. 8); People v. District Court, 186 Colo. 335, 527 P.2d 50 (1974). Here, the prosecution exercised its discretion by offering to discuss the possibility of a plea arrangement with defendant. Section 16-7-301(3) and Crim.P. 11(f)(3) do not require that similarly situated defendants must be offered identical concessions. See ABA Standards for Criminal Justice, Pleas of Guilty § 14-3.1(c) (commentary) (2d ed.1980). Moreover, the prosecution’s discretion in the area of charging defendants should “not be controlled or limited by judicial intervention.” People v. District Court, 632 P.2d 1022 (Colo.1981). See also Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479 (1967); J. Bond, Plea Bargaining & Guilty Pleas §§ 5.2, 5.2(b) and 5.3 (2d ed.1982). Assuming that defendant may obtain judicial review of the district attorney’s exercise of its discretion in these circumstances, we note that the trial court found that defendant was not similarly situated to other alleged co-conspirators. The record supports this finding; hence, we conclude that the trial court did not err in denying defendant’s motion.

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671 P.2d 985, 1983 Colo. App. LEXIS 1000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lewis-coloctapp-1983.