People v. Pettigrew

490 P.3d 680

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.William Scott PETTIGREW, Defendant-Appellant.

Court of Appeals No. 16CA1319

Colorado Court of Appeals, Division VII.

Announced March 26, 2020

Philip J. Weiser, Attorney General, Megan C. Rasband, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Casey J. Mulligan, Alternate Defense Counsel, Boulder, Colorado, for Defendant-Appellant

Opinion by JUDGE BERGER

¶ 1 William Scott Pettigrew appeals his convictions for pandering of a child and tampering with a witness or victim. He contends that two errors require reversal of his convictions. First, he claims that the trial court's statements made to the jury during voir dire regarding reasonable doubt lowered the prosecution's burden of proof. Second, he asserts that evidence of the contents of his cell phone was admitted in violation of the Fourth Amendment. This second claim raises a question of first impression in Colorado: What identifying information must be included in a search warrant authorizing the search of a cell phone to meet the Fourth Amendment's particularity requirement?

¶ 2 We conclude that none the statements made by the trial court lowered the prosecution's burden of proof. We also conclude that the independent source exception to the Fourth Amendment exclusionary rule applied to the evidence found in Pettigrew's phone and that the search warrant sufficiently identified the phone to be searched. Thus, we affirm the judgment.

I. Background

¶ 3 Pettigrew met the seventeen-year-old victim in 2013. After interacting in person, over the phone, and by text, they began a relationship. Text messages that Pettigrew sent to the victim supported the prosecution's theory that Pettigrew encouraged the victim to become a prostitute. The victim's mother contacted the police after seeing sexually explicit photographs on the victim's phone.

¶ 4 After obtaining information from the victim, her cell phone, and her mother, the police arrested Pettigrew inside his house without a warrant.

¶ 5 The police interrogated Pettigrew after they transported him to the police station.¹ During the interrogation, Pettigrew showed the police certain text messages on his cell phone. The police already had possession of the phone; they had seized it after arresting Pettigrew. Later that day, the police released Pettigrew because of concerns by the arresting officers’ superiors that the arrest might have been unlawful because it was effected without a warrant. Although the police released Pettigrew, they kept his phone.

¶ 6 The next day, on the detective's application, a magistrate issued a warrant for Pettigrew's arrest, and he was rearrested. Approximately a week later, the magistrate issued a search warrant for the cell phone, which, as noted, had remained in police custody.

¶ 7 Pettigrew was charged with soliciting for child prostitution, pandering of a child, sexual exploitation of a child, attempted inducement of child prostitution, and tampering with a witness or victim.

¶ 8 Pettigrew moved to suppress all of the information obtained from his cell phone. He argued that the officers unlawfully arrested him when they entered his home without a warrant and that the seizure and later forensic examination of his cell phone were fruits of the unlawful arrest. The trial court denied the motion, concluding that exigent circumstances justified Pettigrew's arrest.

¶ 9 The jury convicted Pettigrew of pandering of a child and tampering with a witness or victim but acquitted him of the other charges.

¶ 10 On appeal, in an unpublished remand order, a different division of this court rejected the trial court's conclusion that exigent circumstances justified Pettigrew's warrantless arrest. People v. Pettigrew , (Colo. App. No. 16CA1319, Feb. 27, 2019) (unpublished order). That division remanded to the trial court to determine whether the independent source exception to the exclusionary rule justified the admission of the evidence found on the phone.²

¶ 11 The prior division identified two questions that governed whether the independent source doctrine applied. First, was the decision to seek the search warrant prompted by information learned as a result of the unlawful arrest? Second, did any information gained from the illegal search affect the magistrate's decision to issue the search warrant? The division answered the second question in the negative. To do so, the division redacted from the warrant affidavit all of the information that it believed was discovered as a result of the unlawful arrest, and then concluded that the warrant affidavit still established probable cause for the issuance of the warrant. As to the first question, because issues of fact remained, the division remanded the case to the trial court to determine if the information obtained from the search of the phone before the warrant was issued affected the detective's decision to seek the search warrant.

¶ 12 On remand, the trial court (with a different judge presiding) found that the detective's decision to seek the search warrant was not prompted or impacted by the evidence gathered as a result of the illegal arrest. The court therefore concluded that the evidence was admissible under the independent source exception. The appeal was then recertified to this court.

II. Analysis

A. The Trial Court's Statements and Instructions on Reasonable Doubt

¶ 13 Pettigrew asserts that five statements made by the trial court to the jury during voir dire constituted reversible error.³ Pettigrew did not preserve any of these claims of error.

¶ 14 A jury "instruction that lowers the prosecution's burden of proof below reasonable doubt constitutes structural error and requires automatic reversal." Johnson v. People , 2019 CO 17, ¶ 8, 436 P.3d 529. But not every statement made by a trial court to a jury constitutes an instruction. See Deleon v. People , 2019 CO 85, ¶ 15, 449 P.3d 1135 ; People v. Knobee , 2020 COA 7, ¶¶ 72-76, 490 P.3d 543 (Dailey, J., concurring in part and dissenting in part). Thus, if we determine that the court made an improper statement that lowered the burden of proof during voir dire, we must then determine if it constituted an instruction. If so, reversal is required. Johnson , ¶ 8.

¶ 15 However, if the statements were not instructions, we evaluate under the plain error standard because Pettigrew did not preserve these claims. See Cardman v. People , 2019 CO 73, ¶ 18, 445 P.3d 1071 ; Knobee , ¶¶ 72-76 (Dailey, J., concurring in part and dissenting in part). "[P]lain error occurs when there is (1) an error, (2) that is obvious, and (3) that so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." Cardman , ¶ 19.

1. "Innocent" and "Not Guilty"

¶ 16 During voir dire, the court told prospective jurors:

Innocent would mean that the defendant didn't do anything, all right? He was in China at the time of this event okay? He just – he's innocent, all right? But that's not how we look at trials in this country. It's – trials in this country are a test of the prosecution's evidence. So even if you listen to the evidence and you start to think about it, you say, well, you know, he might have done it, or he could have done it, there's some evidence there that would suggest he's involved in this, if it doesn't convince you beyond a reasonable doubt, then you have to find him not guilty.

¶ 17 These statements did not lower the prosecution's burden of proof, so we need not determine if they were instructions. Nothing in the court's statements directed or even suggested that the jury could convict Pettigrew on anything less than proof beyond a reasonable doubt. Despite any possible confusion, the court correctly informed prospective jurors that they had to find Pettigrew not guilty if they were not convinced of his guilt beyond a reasonable doubt. And immediately prior to the quoted statements, the court correctly told the jury that guilty "means that the prosecution's evidence has convinced you beyond a reasonable doubt that the defendant committed one or all of the offenses charged."

¶ 18 Also, it is uncontested that the jury was correctly instructed on the burden of proof, under the pattern jury instructions. Pettigrew does not contend that those instructions were defective in any way. Courts have repeatedly recognized that the risk of lowering the burden of proof is mitigated when the jury is otherwise correctly instructed. People v. Estes , 2012 COA 41, ¶ 12, 296 P.3d 189.

2. "Beyond a Shadow of a Doubt"

¶ 19 Next, the trial court explained to the venire that legal concepts are not the same as they appear on television:

[B]eyond a shadow of doubt. Sounds really good, doesn't it? There's no such thing. In law, there is no such thing as a burden of proof beyond a shadow of doubt. There's no proof beyond all doubt, every doubt or any doubt. And that's because, as [prospective juror] pointed out, you can have vague, speculative or imaginary doubts about all kinds of things, but they aren't reasonable, okay?

So we don't – the burden is not an impossible burden on the prosecution, but it's a very, very high burden.

¶ 20 There is no need to determine whether these statements constituted instructions because they did not misstate the law or lower the prosecution's burden of proof. It is not reversible error for a court to distinguish the fictional "beyond a shadow of a doubt" standard from the constitutionally mandated beyond a reasonable doubt standard. Knobee , ¶ 37.

3. Perry Mason and CSI

¶ 21 After crediting the television show "Perry Mason" for the popularity and origin of the "beyond a shadow of a doubt" phrase, the court summarized an episode of the show "CSI" and made the following comments:

And the reason I emphasize that is because, you know, that's television. That's great for TV, but it's not real life, okay? And I am always concerned that when jurors go back into the jury

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