The People of the State of Colorado, Plaintiff-Appellee, v. Fredrick Charles Battle, Defendant-Appellant. (2023)

JUDGMENT AFFIRMED

¶ 1 Defendant, Fredrick Charles Battle, appeals the judgment of conviction entered on jury verdicts finding him guilty of various drug offenses as well as two special offender counts based on his possession of a firearm. We affirm.

I. Background

¶ 2 Police obtained a warrant to search Battle's person, cell phone, apartment, and two vehicles based on M.B.’s allegation that Battle had repeatedly given her drugs, sold her drugs in exchange for money or sex, and assaulted her with a gun. The affidavit supporting the warrant also alleged that Battle was prohibited from possessing a firearm based on a prior domestic violence conviction in Wyoming.

¶ 3 Police executed the search warrant one morning as Battle parked one of his vehicles outside his apartment. They approached Battle and asked him whether he had a weapon. Battle said yes. From Battle's person, police recovered a handgun and over $1,600 in cash. From his car, they recovered another handgun, 37.5 grams of heroin, 3.5 grams of methamphetamine, a digital scale, and plastic baggies containing other prescription drugs. From his apartment, they recovered a ledger showing pill prices and quantities and another handgun and a rifle.

¶ 4 Battle was arrested and charged with three counts of possession with intent to manufacture or distribute a controlled substance, one count of possession of a controlled substance, one count of possession of drug paraphernalia, and two special offender counts based on having committed the drug offenses while possessing a firearm. Before trial, he moved to suppress the evidence obtained from the searches, arguing that the warrant lacked probable cause and was defective. The trial court denied the motion and the evidence was admitted at trial, along with statements Battle made to officers during the searches and arrest.

¶ 5 During voir dire, a prospective juror said that she had seen Battle repeatedly on a mobile patrol app and suggested it might indicate that he was “repeatedly going to jail for drugs.” The prospective juror was dismissed for cause. Defense counsel then moved for a mistrial, arguing that this comment put inadmissible and prejudicial information before the jury. The court denied the motion and a curative instruction was neither requested nor given.

¶ 6 The jury found Battle guilty as charged and he was convicted and sentenced accordingly.

¶ 7 On appeal, Battle argues that the trial court erred by denying his suppression and mistrial motions. We address and reject these arguments in turn.

II. Suppression

¶ 8 Battle argues that the trial court should have suppressed the evidence obtained during the search because (1) there was no probable cause to search his home and vehicles; (2) the information supporting the warrant was stale; and (3) the warrant and search of his cell phone was overbroad.

¶ 9 We review a trial court's suppression ruling as a mixed question of fact and law. See People v. Tomaske, 2019 CO 35, ¶ 7. We defer to the court's factual findings if they are supported by the record and review the court's legal conclusions de novo. Id. Doing so, we perceive no grounds for reversal.

¶ 10 The United States and Colorado Constitutions require that a valid search warrant be supported by probable cause. See People v. Pacheco, 175 P.3d 91, 94 (Colo. 2006). This means that the affidavit supporting the warrant must contain “sufficient facts to warrant a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched.” People v. Miller, 75 P.3d 1108, 1112 (Colo. 2003). When reviewing whether there was probable cause, we do not consider facts outside the four corners of the search warrant and affidavit. See Pacheco, 175 P.3d at 94.

¶ 11 Here, the following allegations in the affidavit were more than sufficient to establish probable cause for a search of Battle's person, home, and vehicles. The affidavit alleged that M.S., who was married to another man, had been having an affair with Battle for three years. She told police that she regularly went to Battle's apartment and he would give or sell her methamphetamine and they would have sex. She said they also sometimes used methamphetamine and did not have sex.

¶ 12 On September 14, 2018, she went to Battle's apartment as normal.¹ She and Battle got into an argument and Battle grabbed her by the throat and pushed her up against a wall, hitting her head on the wall. After releasing her, Battle then held a gun to her head and threatened to kill her if she called the police or told anyone about the assault.

¶ 13 The officer-affiant viewed numerous Facebook messages between M.B. and Battle indicating that M.B. was having sex with Battle for drugs. In the messages, she accused him of being a drug dealer.

¶ 14 The affidavit also said that the officer-affiant had looked into Battle's criminal history and discovered that he had a conviction in Wyoming prohibiting him from possessing firearms. And M.B. told the officer-affiant that Battle kept guns in his home and car.

¶ 15 This information was more than sufficient to lead a reasonable person to believe that Battle was a drug dealer who had assaulted M.B. with a deadly weapon. It was therefore reasonable to believe that evidence of the assault and drug dealing would be found on Battle's person, in his home, or in his vehicles.

¶ 16 We also disagree with Battle's contention that this evidence was stale. The alleged assault occurred on September 14, 2018, and the drugs-for-sex relationship had been ongoing for the previous three years. The search occurred on October 10, 2018, less than four weeks after the alleged assault. Because M.B. told the officer-affiant she had been getting methamphetamine from Battle for the three years leading up to September 14, 2018, it was reasonable to believe that evidence of methamphetamine possession and distribution would be found on his person, in his home, and in his vehicles several weeks later.

¶ 17 Finally, to Battle's argument that the warrant was defective as to a search of the entire contents of his cell phone, he does not identify any evidence from the cell phone that was admitted at trial. Therefore, even if we agreed with Battle that the warrant was defective as to the cell phone evidence, he would not be entitled to any relief. We therefore reject this argument.

¶ 18 Because we conclude that the affidavit in support of the warrant established probable cause to search the places where drugs and guns were found, we disagree that any error in the suppression ruling entitles Battle to relief.

III. Mistrial Motion

¶ 19 Battle next argues that the trial court erred by denying his motion for a mistrial based on a dismissed juror's comment during voir dire. We review the denial of a mistrial motion for an abuse of discretion. See People v. Pernell, 2014 COA 157, ¶ 24.

¶ 20 “A mistrial is a drastic remedy that is warranted only when the prejudice to the accused is so substantial that its effect on the jury cannot be remedied by other means.” People v. Cousins, 181 P.3d 365, 373 (Colo. App. 2007) (quoting People v. Dore, 997 P.2d 1214, 1221 (Colo. App. 1999)). When a prospective juror makes comments that are prejudicial to the defendant during voir dire, the trial court can generally remedy the prejudice by issuing a curative instruction or canvassing the jury. See People v. Mersman, 148 P.3d 199, 204 (Colo. App. 2006). Importantly, the defendant must request a curative instruction: a trial court does not plainly err by failing to give one sua sponte. Id. at 203. And where a defendant moves for a mistrial based on a prospective juror's prejudicial comments without requesting a curative instruction or that the court canvass the jury, another division of this court has suggested that the court necessarily does not abuse its discretion by denying a mistrial motion. Id. at 204 (“[The defendant] moved for a mistrial without requesting a curative instruction. Furthermore, he did not request that the trial court canvass the jurors to see whether they had actually heard the prejudicial comment and, if so, whether it had affected their ability to decide the case fairly. Accordingly, we conclude the trial court did not abuse its discretion when it denied [the defendant]’s motion for a mistrial.”).

¶ 21 During voir dire in this case, a prospective juror said this about Battle: “I mean I also have a mobile patrol app which I'm sure most of the community does. I'm — I've seen this individual on there repeatedly which — I mean it — to me, if he's repeatedly going to jail for drugs then obviously we — there's a drug issue.” Defense counsel moved for a mistrial without requesting a curative instruction or that the court canvass the jury. Under these circumstances, Mersman suggests that the trial court does not abuse its discretion by refusing to declare a mistrial.

¶ 22 But even if Mersman does not stand for this proposition, we conclude that any prejudice resulting from the prospective juror's comment was insufficient to warrant the drastic remedy of a mistrial. Initially, we note that the comment was fleeting in the context of the extensive voir dire conducted by defense counsel. Moreover, the juror did not explain what a mobile patrol app is or what causes a person to appear on one.² And she did not say with certainty that Battle had repeatedly gone to jail for drugs. She said “if” Battle was repeatedly going to jail for drugs then there is a drug issue. The equivocal nature of this comment, coupled with the vague reference to an unnamed mobile patrol app, meant that this comment's prejudice could have been remedied with a curative instruction. Id. at 203 (“Generally, curative instructions issued after a prejudicial statement is made will remedy any harm caused by the statement.”). And because the drastic remedy of a mistrial is reserved for prejudicial comments that are impossible to remedy by other means, see Pernell, ¶ 24, the trial court did not abuse its discretion by denying Battle's mistrial motion.

IV. Disposition

¶ 23 The judgment of conviction is affirmed.

FOOTNOTES

1.   The affidavit says that this single event occurred on several different dates. But the trial court found that these were typographical errors and the incident occurred on September 14, 2018. We agree with this finding and Battle does not challenge it on appeal.

2.   Indeed, a different juror shared that he often saw people he knew and associates with on the app and therefore a person's presence on the app did not lead him to form any opinions about the person as a result.

Opinion by JUDGE PAWAR

J. Jones and Yun, JJ., concur JUDGE J. JONES and JUDGE YUN concur.