April 29, 2011
People v. Ray Rule 35(c) / Witness Protection Programs - Protective Orders and Disclosure of Protected Witness Addresses To Defense
Facts: A jury convicted Mr. Ray of killing a witness and another person, and imposed the death penalty. Mr. Ray’s 35(c) counsel sought and the trial court granted access to the addresses of witnesses under a protective order and other witnesses in a “witness protection program.” The prosecution, Carol Chambers and crew, cried foul to the Colorado Supreme Court
Issue: Whether the prosecution’s interest in protecting witnesses outweighed Mr. Ray’s interest in locating and interviewing the witnesses?
Held: Yes, the prosecution wins.
Generally, the rule is that a defendant's right to obtain a witness' address is in aid of the defendant's right of confrontation. See People ex rel. Dunbar v. District Court, 177 Colo. 429, 432, 494 P.2d 841, 843 (1972). The defendant's right of confrontation, however, is not without limitations. See id. In Dunbar, this court first recognized a personal safety exception to the accused's right of confrontation. Id. We held in Dunbar that once a witness has made a showing that his safety would be endangered if he discloses his residence, then the defendant has a duty to show some materiality in questioning the witness as to his residence. Id. at 433, 494 P.2d at 844. Thus, in determining whether the witness must disclose his address, the trial court must balance the witness' right to personal safety against the defendant's right of confrontation. See id. at 434, 494 P.2d at 844.
People v. Dist. Court, 933 P.2d 22, 25 (Colo. 1997).
Here, in Mr. Ray’s case, the Colorado Supreme Court put great emphasis on the fact that a jury convicted Mr. Ray of killing a witness. The Court attempts to present this case as worse than District Court. However, in District Court, the prosecution previously placed the witnesses in a witness protection program. At that point, the defendant or a confederate of the defendant allegedly threatened the witnesses. On that basis the Colorado Supreme Court prevented disclosure of witness addresses to the defense. Further, in Mr. Ray's case, the Colorado Supreme Court put great emphasis on the fact the witnesses the defense sought to interview and investigate did not wish to be interviewed by anyone from the defense. Of course, the prosecution, the people who want to kill Mr. Ray and want to thwart any successful 35(c) ruling, provided this information themselves - not through any witness testimony. Lastly, the Court that found in a 35(c) post-conviction setting, the interest in interviewing the neighbors and such, did not provide the material basis needed to disclose the location of the witnesses – unlike perhaps preparation for a jury trial where placing the witnesses in each's setting could provide exculpatory evidence.
People v. Glick Fourth Amendment / Plain View Exception / Warrantless Search
Facts: Sometime before sunrise the cops in keystone fashion cannot find the 911 hang-up call address. This being Pueblo, where cops got nothing better to do, the police start banging on doors and canvassing the neighborhood for the crank 911 caller. Eventually they show up on Mr. Glick’s porch, wake him up, and ask to interview his girlfriend and another occupant. Mr. Glick tells the cops to stay outside. However, the cops claim that Mr. Glick left the door open, which prompted their snooping. The police shined a flashlight on a table and allegedly saw a white rock and green leafy stuff. The police claim what they saw was narcotics. When he came back, the police claim that Mr. Glick stopped over at the table and picked up the white rock. Of course, the police entered Mr. Glick’s home at this point - without a warrant, without permission, and against the express wishes of Mr. Glick. To justify their actions, the police claimed they thought Mr. Glick would attempt to destroy the evidence. The prosecution provided no actual evidence that Mr. Glick intended or attempted to destroy the evidence, just officer hopes and dreams. Based upon this warrantless entry and search, the trial court suppressed all the evidence.
Issue: Whether an officer’s unsubstantiated belief about possible destruction of evidence allegedly seen in pain view can justify a warrantless entry into a home?
Reasoning: To prove the police can seize evidence in plain view, the prosecution must show: “(1) the initial intrusion onto the premises was legitimate; (2) the police had a reasonable belief that the evidence seized was incriminating; and (3) the police had a lawful right of access to the object seized.”
In an opinion by Justice Bender the Colorado Supreme Court held:
Initial Intrusion: because the police could have seen the alleged narcotics in daylight, the Court held that shining a flashlight through the front door of the home did not convert this into a search. Interestingly, the trial court found that because the home is the most protected area under the constitution, this situation is not at all similar to shining a flashlight into a car where there is a lesser degree of privacy. Thus, the trial court found an officer is not permitted to shine a flashlight into a home. The Colorado Supreme Court repudiated the trial court on this point, and found no problem with an officer shining a light into a home despite no prior suspicions of illegal activity.
Reasonable Belief of Incriminating Evidence: the police believed that they saw narcotics.
Lawful Right of Access to the Evidence Seized: exigent circumstances provided the police with lawful access because the police believed Mr. Glick would attempt to destroy the evidence of narcotics.
Therefore, despite no prior reasonable suspicion, despite no warrant, despite no consent, despite an express refusal to allow entry into the home in the early morning, despite the keystone cop canvassing of homes based upon a 911 hang-up, the Court reversed the trial court’s suppression order – all under the guise of plain view.