Thе People of the State of Colorado v. Warren Gilbert Wieckert
No. 26585
Supreme Court of Colorado
September 7, 1976
October 12, 1976
554 P.2d 688
Levine, Pitler & Westerfeld, P.C., Robert L. Pitler, for defendant-appellant.
En Banc.
MR. JUSTICE ERICKSON delivered the opinion of the Court.
The defendant, Warren Gilbert Wieckert, was convicted by a jury of two counts of menacing,
Early in the morning of March 14, 1974, the defendant, in an intoxicated condition, had a violent quarrel with his wife. During the course of the argument, he threatened to shoot his wife and their thirteen-year-old daughter. Mrs. Wieckert and the daughter fled from their house and sought refuge at a neighbor‘s house across the street. The neighbor called the pоlice, who arrived and parked between the two residences.
As Mrs. Wieckert and her daughter talked with officers in the vicinity of the patrol cars, the defendant appeared at the corner of his house, armed with a pistol. An officer shined his flashlight at the defendant. The defendаnt responded by firing several shots toward the group. Several officers then returned fire, and the defendant retreated into his house. After prоlonged negotiations, the defendant surrendered to the police. Shortly thereafter, the police conducted a warrantless sеarch of the Wieckert house. According to police testimony, Mrs. Wieckert had agreed to allow the police to search for weapons which she believed her husband kept in the residence. In the suppression hearing, she denied giving consent to the search. Lаter in the morning, the police returned and conducted a search pursuant to a warrant.
The Consent Search
The defendant contends that the trial court shоuld have granted his motion to suppress the evidence that was seized without a search warrant. Contrary to the trial court‘s findings at the supprеssion hearing, the defendant alleges that the evidence was insufficient to support the conclusion that his wife voluntarily consented to the police officers’ initial search of the premises.
The burden rests upon the prosecution to prove that the consent to sеarch was freely and intelligently given. People v. Neyra, 189 Colo. 367, 540 P.2d 1077 (1975); People v. Hancock, 186 Colo. 30, 525 P.2d 435 (1974); People v. Railey, 178 Colo. 297, 496 P.2d 1047 (1972). The defendant apparently concedes that another person possessing common authоrity over the premises may consent to a search of those premises, see United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); People v. Hancock, supra, but alleges that in this case the consent was not voluntary nor given with full knowledge of the right to withhold consent. Phillips v. People, 170 Colo. 520, 462 P.2d 594 (1969);
Whether the consent given in any particular case is voluntary is a question “to be determined by the court in light of the totality of the circumstances surrounding the consent.” People v. Hancock, supra; Capps v. People, 162 Colo. 323, 426 P.2d 189 (1967). The evidence supports the court‘s finding in this instance that Mrs. Wieckert freеly and voluntarily consented to the search of her premises. Mrs. Wieckert was informed by the police that they would not conduct the search if she did not want them to, and she responded that she wanted all of the guns out of her house. Mrs. Wieckert further evidenced her consent by assisting thе police officers in their efforts to locate a revolver in the garage and by offering them coffee while they searched her house.
Mrs. Wieckert denied these facts during the hearing, but the trial court apparently chose to believe the testimony of the poliсe officers. The trial court found that Mrs. Wickert freely and voluntarily consented to the search. The evidence supported these findings. Accordingly, we affirm the trial court. Massey v. People, 179 Colo. 167, 498 P. 2d 953 (1972); People v. Reyes, 174 Colo. 377, 483 P.2d 1342 (1971).
II.
The Search Warrant
Defendant further alleges that the affidavit underlying the search warrant was defective because it was basеd upon hearsay and certain misstatements of facts. We note that the police officer‘s affidavit does not affirmatively disclosе whether the source of the information contained therein is the affiant‘s personal knowledge or hearsay information
As to both claims, however, we are convinced that the errors, if any, were harmless and did not prejudice the rights of the defendant. The evidence which was discovered in the warrant search and thereafter introduced at trial was merely cumulative of оther overwhelming and competent evidence of the defendant‘s guilt. Therefore, the constitutionality of the search need not be dеtermined. See, e.g., Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); People v. Thomas, 189 Colo. 490, 542 P.2d 387 (1975); People v. Jones, 184 Colo. 96, 518 P.2d 819 (1974).
III.
Consistency of Verdicts
Defendant‘s third argument is that the evidence shows only one criminal act on his part. He fired four shots in the direction of the рatrol car where several officers and the defendant‘s wife and daughter were standing. Therefore, he claims that he cannot be found guilty of four counts and the violation of two specific criminal statutes. This argument has two facets: Does each “victim” create a sеparate offense, and did the defendant‘s activities constitute only a single criminal transaction entailing only a single criminal offense?
A defendant who commits an act of violence with the intent to place more than one person in fear of serious bodily injury or who recklessly creates a substantial risk of bodily injury to more than one person may be found guilty of multiple offenses under the same criminal statute.
“[T]he test to be applied to determine whether there are two offenses or only one is whether each provision requires proof оf a fact which the other does not.”
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See People v. Sharpe, 183 Colo. 64, 514 P.2d 1138 (1973); DeBose v. People, 175 Colo. 356, 488 P.2d 69 (1971); People v. McKenzie, 169 Colo. 521, 458 P.2d 232 (1969). See also
We have reviewed the defendant‘s remaining arguments and find them to be without merit.
Accordingly, the judgment is affirmed.
MR. JUSTICE GROVES concurs in pаrts I and II, and dissents as to part III.
MR. JUSTICE GROVES dissenting in part:
I respectfully dissent to part III.
The majority opinion states:
“A defendant who commits an act of violence with the intent to place more than one person in feаr of serious bodily injury or who recklessly creates a substantial risk of bodily injury to more than one person may be found guilty of multiple offenses under the same criminal statute.”
To me this means that, if a person fires at a group without causing injury, he commits that number of offenses which are equal to the number of persons in the group. To this I cannot subscribe.