PEOPLE v. HENRY

ERICKSON, Justice.

The appellant, Carlos O. D. Henry, was convicted by a jury of aggravated robbery, conspiracy to commit aggravated robbery, and felony-murder. On appeal, the appellant contends that the trial court erred in denying his motions to suppress the introduction of certain evidence and asserts that numerous errors occurred which require a new trial. We affirm.

I.

Facts

A 7-11 Store in Aurora, Colorado, was robbed at approximately 3:30 a. m. on August 24, 1975. The store attendant on duty was killed during the robbery by a shotgun blast fired at close range into his back. Other than the participants, there were no eyewitnesses to the crimes.

The police investigation of the criminal episode led to the arrest of Daniel F. Barnes in Cheyenne, Wyoming, on August 30, 1975. Barnes initially denied involvement in the incident, but later admitted his participation and made a statement. He informed the police that the other individuals responsible for the crimes were "Carlos," later identified as the appellant, and the appellant's common-law wife, later identified as Yvonne Brown. According to Barnes, who later pled guilty to aggravated robbery, Brown first went into the store to look things over, and the appellant, thereafter, entered the store alone, robbed it, and killed the attendant.

On August 31, 1975, the Aurora police made efforts to locate the appellant. The police eventually obtained what was believed to be the appellant's current address. Further investigation, however, revealed that the appellant had recently moved to an apartment across the street from his prior address. At approximately 9:30 p. m., seven police officers initiated surveillance of the appellant's apartment building. During the next ninety minutes, the police kept the building under surveillance, so that no one could leave unnoticed. The lights in the appellant's apartment were observed to be on, and the shower was running. At 11:00 p. m., four policemen, including two officers armed with shotguns, knocked at the appellant's door. When a voice asked who was there, an officer answered by giving the name of a known acquaintance of the appellant. Yvonne Brown opened the door, and both the appellant and Brown were arrested.

During questioning conducted on the following day, at approximately noon, the appellant waived his constitutional rights and made a statement after having been given the warnings set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He admitted having been at a party the evening of the robbery and having met a person named "Danny," identified by a photograph as Barnes. However, he denied involvement in the robbery-murder. At the time of questioning, at the request of a police officer, the appellant provided the police with a hair sample. Subsequent analysis established that the appellant's hair sample had the same characteristics on comparison as a hair found in a mask recovered from the 7-11 Store after the robbery.

II.

Legality of the Warrantless Arrest

The appellant's initial contention is that his warrantless arrest was made in violation of Colorado's arrest statute, section 16-3-102, C.R.S.1973:1

It is well established that only probable cause and exigent circumstances serve to excuse the statutory warrant requirement. People v. Litsey, Colo., 555 P.2d 974 (1976); People v. Hernandez, Colo., 554 P.2d 291 (1976); People v. Hoinville, Colo., 553 P.2d 777 (1976); People v. Fratus, 187 Colo. 52, 528 P.2d 392 (1974); People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971). In People v. Hoinville, supra, we examined our statutory requirement and declared:

Both parties recognize that the Hoinville case states the law in Colorado, but disagree as to the existence of probable cause and exigent circumstances. A review of the record clearly establishes that probable cause existed to believe that a crime had been committed by the appellant prior to his arrest. The legality of the warrantless arrest, therefore, depends upon the existence of exigent circumstances.

The prosecution contends that exigent circumstances are established by the character of the investigation, the time of the arrest, the violent nature of the crimes, and the potential danger to the public. While all of these factors are relevant in the determination of exigent circumstances, no factor alone is conclusive, and the totality of the circumstances must be examined. See People v. Litsey, supra.

When the circumstances surrounding the appellant's warrantless arrest are considered, it is clear that exigent circumstances did not exist. Prior to the arrest, for one and one-half hours, seven police officers kept the appellant's apartment under surveillance. No explanation for the police failure to have one of the officers seek to obtain an arrest warrant during the course of the surveillance has been offered.

III.

Admissibility of the Appellant's Statement and Hair Sample

The remedy for the violation of our arrest warrant requirement is the exclusion of evidence seized which is tainted as fruit of the poisonous tree. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); People v. Hoinville, supra; People v. Moreno, supra. Evidence obtained subsequent to an illegal arrest need not be suppressed, however, if the taint of the official misconduct has been purged. Brown v. Illinois, supra.

The United States Supreme Court considered the factors which might serve to purge the taint of an illegal arrest in Brown v. Illinois, supra. The Supreme Court in Brown rejected the argument that the Miranda warning is sufficient to purge the taint and permit the admission of a confession:

Consideration of the factors enumerated in Brown leads us to conclude that the appellant's statement and hair sample were not tainted as fruit of the poisonous tree. First, the appellant's statement was made and the hair was obtained the day after the illegal arrest and not immediately thereafter, as was the case in Brown. Secondly, the warrantless arrest was not made for the purpose or with the intent of discovering evidence to establish probable cause. As properly determined by the trial court, the officers possessed probable cause at the time of the warrantless arrest. Finally, the appellant was fully advised of his constitutional rights by the Miranda warning and agreed in writing to waive those rights. Similarly, the record establishes that the hair sample was provided voluntarily by the appellant after an officer's request. No evidence suggests that the appellant's statement or hair sample were obtained involuntarily or through coercion.

IV.

Evidence of Prior Criminal Transaction

The appellant also challenges the trial court's decision to admit evidence concerning his involvement in a prior criminal transaction. Over the appellant's objection, the victim of an armed robbery testified about a liquor store robbery one month earlier and identified the appellant as a participant. A detective who had questioned the appellant at the time of his earlier arrest also testified. According to the detective, after the appellant was informed that he had been arrested because the victim recognized him, the appellant said, "The only mistake I made was not killing her or I wouldn't be here now."

As a general rule, evidence of an accused's other crimes is inadmissible to prove guilt of the crime charged. The reason for this rule is to insure a fair trial and to prevent an accused from being convicted because of his participation in or commission of some other unrelated crime. People v. Ihme, 187 Colo. 48, 528 P.2d 380 (1974); Warford v. People, 43 Colo. 107, 96 P. 556 (1908). The general rule is inapplicable, however, when the purpose for which the evidence is introduced is to establish plan, scheme, design, or intent. People v. Martinez, Colo., 549 P.2d 758 (1976); People v. Moen, 186 Colo. 196, 526 P.2d 654 (1974); Kennard v. People, 171 Colo. 194, 465 P.2d 509 (1970); McCormick, Evidence, § 190 at 448 (2d ed. 1972).

After a lengthy hearing, the trial court concluded that the evidence of the prior criminal transaction was sufficiently proximate in time and possessed the required degree of similarity to warrant its admission for the purpose of showing plan, scheme, or design. The trial court also concluded that the detective's testimony concerning the appellant's prior statement was admissible to establish the appellant's motive in killing the store attendant. The admissibility of the statement was within the trial court's discretion and would only be subject to review if an abuse of discretion occurred. People v. Ihme, supra; Clews v. People, 151 Colo. 219, 377 P.2d 125 (1962). Careful scrutiny of the record in this case causes us to conclude that the trial court did not abuse its discretion in admitting the challenged evidence. The jury was properly instructed as to the limited purpose of the evidence. Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959). Accordingly, we find no error which requires reversal.

V.

Constitutionality of Colorado's Competency Statute

The appellant's final allegation of error is that Colorado's competency statute, section 13-90-101, C.R.S.1973, is violative of his right to due process because it impermissibly chilled the exercise of his right to testify on his own behalf. The trial court, after a hearing on the appellant's motion to suppress prior felonies, ruled that the prosecution would be permitted to impeach the appellant with a 1969 felony conviction. The appellant did not take the stand at trial and asserts that his decision was influenced by the court's decision.

In answer to this argument, we adopt the reasoning of the Washington Supreme Court in State v. Ruzicka, 89 Wn.2d 217, 570 P.2d 1208 (1977):

The appellant's right to the due process of law has not been violated in this case.

Accordingly, the judgment is affirmed.

PRINGLE, C. J., and CARRIGAN, J., do not participate.