Peo v. Weaver

22CA1131 Peo v Weaver 10-31-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1131
El Paso County District Court No. 20CR3478
Honorable Catherine Mitchell Helton, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

William Arthur Weaver,

Defendant-Appellant.

JUDGEMENT AFFIRMED

Division V
Opinion by JUDGE FREYRE
Grove and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 31, 2024

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, William Arthur Weaver, appeals the judgment of

conviction entered on a jury verdict finding him guilty of first degree

murder as an act of domestic violence and two crime of violence

sentence enhancers. We affirm.

I. Background

¶2 On June 19, 2020, Weaver and the victim, his wife Wendy

Cupit, had a physical altercation that left her dead. Weaver told

police that while drunk, they had a verbal argument the previous

evening that escalated when Cupit assaulted, mocked, and taunted

him. He left the house, then returned, and another argument

ensued. The victim hit him, and in a fit of rage, Weaver tried to

strangle her to death. When that didn’t work, he retrieved a kitchen

knife and stabbed her to death.

¶3 Sometime later, Weaver contacted his ex-wife, J.M.S., via

Facebook Messenger, and said, “[I] just killed [my] wife” and that he

was going to turn himself in. J.M.S. contacted the police, and the

police responded to Weaver’s home. They observed blood on the

front door and saw the victim’s body through a front window. The

police arrested Weaver without incident and questioned him for

three hours. During the interview, Weaver described his

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relationship with the victim, the events leading to their argument,

and how he had killed her. In additional statements that the court

excluded at trial, he described his mental health, past suicide

attempts, and victimization as a child at the hands of his parents.

¶4 The prosecution charged Weaver with first degree murder and

two crime of violence counts, and the jury convicted him as

charged. The trial court sentenced him to the custody of the

Department of Corrections for life without the possibility of parole.

¶5 Weaver challenges his conviction on four grounds and alleges

that the trial court erroneously (1) denied his motion to suppress

evidence obtained from the overly broad and general search

warrant; (2) admitted the victim’s “in life” photograph; (3) admitted

an exhibit containing impermissible character evidence; and (4)

excluded his statements to the police concerning his mental health.

He also contends that the cumulative effect of these errors requires

reversal. We address and reject each of his contentions.

II. Search Warrant

¶6 Relying on People v. Coke, 2020 CO 28, Weaver first contends

that the evidence obtained from the search of his cell phone violated

his constitutional rights under the Fourth Amendment to the

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United States Constitution and article II, section 7 of the Colorado

Constitution because the warrant was overbroad, generalized, and

lacked particularity. We are not persuaded.

A. Additional Facts

¶7 After the police arrested Weaver, they seized his cell phone

along with two Cricket cell phones found in the house. During

Weaver’s interview, he gave the police the pass code to his phone

and said, “You can go through it, I don’t care.” He also confirmed

he had messaged his ex-wife and told her he had killed his wife and

said he had messaged other friends with the same information.

¶8 The police then sought a search warrant for all three phones.

In the affidavit, the detective recited Weaver’s statement that he

messaged his ex-wife saying he had killed his current wife and was

getting ready to turn himself in, and that he had messaged others

with the same information. The detective also described

conversations with witnesses who knew the victim, who had seen

previous injuries on her, and who were familiar with the couple’s

domestic violence history. Those witnesses said the victim had

kicked Weaver out of the house but let him return approximately

one week before the homicide.

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¶9 The detective requested six months of data from the phones

because he had reason to believe there was a history of domestic

violence. Specifically, the warrant sought the following:

• audio and video clips related to the criminal activity.

• data that may identify the owner or user of the cellular

communication device(s);

• call histories, call logs and visual voicemail related to the

criminal activity, as found in the cellular communication

device(s);

• photographs and associated metadata related to the

criminal activity, as found in the cellular communication

device(s);

• texts, multimedia messages, recorded messages and

subscriber information modules between the cell phone

owner and co-conspirators involved in the criminal activity,

as found in the cellular communication device(s);

• email messages and attachments, whether read or unread

and related to the criminal activity, as found in the cellular

communication device(s);

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• internet browser files including, but not limited to, browser

history, browser cache, stored cookies, browser favorites,

auto-complete form history, and stored password(s); and

• global positioning system data including, but not limited to,

coordinates, way points, and tracks.

¶ 10 Before trial, Weaver moved to suppress all evidence seized

from the phones, arguing that the warrant “was unconstitutional as

it was not particular, but, instead, allowed for a general exploratory

search.” After a hearing, the trial court denied the motion and

found that while there was a lot of information contained in a cell

phone, the detective had given proper reasoning for why a six-

month time frame was requested. The trial court also noted that

Weaver and his wife were together for three years, and that a

witness said she had reason to believe domestic violence occurred

as early as “several months ago.”

¶ 11 Finally, the court noted that while law enforcement officers

had to describe or identify the items to be searched with

particularity, there was not always a specific date as to when things

occurred. It found that six months was reasonable, given the

evidence of a history of domestic violence between the parties.

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B. Standard of Review and Applicable Law

¶ 12 The suppression of evidence presents a mixed question of law

and fact. People v. Thompson, 2021 CO 15, ¶ 15. We defer to the

trial court’s factual findings if they are supported by competent

evidence, but we review the legal effect of those findings de novo.

Id. A constitutional error requires reversal if “there is a reasonable

possibility that the [error] might have contributed to the conviction.”

Hagos v. People, 2012 CO 63, ¶ 11 (quoting Chapman v. California,

386 U.S. 18, 24 (1967)).

¶ 13 The United States and Colorado Constitutions protect

individuals against “unreasonable searches and seizures.” U.S

Const. amend. IV; Colo. Const. art. II, § 7. When analyzing the

legality of a search, the touchstone is reasonableness. People v.

Davis, 2019 CO 24, ¶ 15. And reasonableness generally requires a

warrant. Id. at ¶ 16.

¶ 14 A lawful search warrant must describe with particularity both

“the place to be searched” and “the things to be seized.” People v.

Pacheco, 175 P.3d 91, 94 (Colo. 2006). Particularity limits the

government’s discretion in examining private information and

prohibits general exploratory rummaging. People v. Seymour, 2023

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CO 53, ¶ 44. To satisfy particularity, a cell phone search warrant

must include specific limitations based on (1) the type of alleged

criminal activity; (2) the identity of the alleged victim; and (3) if

applicable, the timeframe within which the suspected crime

occurred. People v. Herrera, 2015 CO 60, ¶ 20; see also Coke, ¶ 34

(finding insufficient particularity where the warrant permitted the

officers to search all texts, videos, pictures, contact lists, phone

records, and any data based on ownership absent a specific or

reasonable timeframe).

¶ 15 However, “a warrant doesn’t lack particularity simply because

it is broad.” Seymour, ¶ 46. “Likewise, a search isn’t

unconstitutional simply because the government, in some lightning-

fast, digital sense, very cursorily examines unrelated documents.”

Id. at ¶ 47. “Even when a warrant is adequately particularized, ‘it is

certain that some innocuous documents will be examined . . . to

determine whether they are, in fact, among those papers authorized

to be seized.’” Id. (quoting Andresen v. Maryland, 427 U.S. 463, 482

n.11 (1976)).

¶ 16 The warrant’s description of the property to be seized should

permit the officer charged with executing the warrant to know with

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a reasonable degree of certainty what should be seized. Coke, ¶ 34.

Given modern cell phones’ immense storage capacities and ability to

collect and store many distinct types of data in one place, courts

have recognized that cell phones “hold for many Americans ‘the

privacies of life’” and are, therefore, entitled to special protections

from searches. Id. at ¶ 37 (citation omitted). And a warrant

authorizing the search of a cell phone simply for general indicia of

ownership violates the Fourth Amendment’s particularity

requirement. See Herrera, ¶¶ 4, 18.

C. Analysis

¶ 17 We discern no error in the court’s ruling denying Weaver’s

motion to suppress and conclude the warrant was sufficiently

particular for three reasons. First, unlike in Coke, where the

warrant contained no particulars about the alleged victim or when

the assault occurred, the warrant here identified the victim,

described the crime and when it was committed, and described a

history of domestic violence between Weaver and the victim.

Herrera, ¶ 20.

¶ 18 Second, unlike in Coke, where the warrant contained no time

limitations, the warrant here limited the search to the six months

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preceding the homicide and thus, constituted a reasonable period to

document the domestic violence history described by Weaver and

other witnesses.

¶ 19 Third, unlike in Coke, where the warrant permitted police to

search for any and all information without limitation, the warrant

here limited most of the data to be searched to the criminal activity

described in the affidavit. And to the extent the warrant permitted

a search of global positioning and internet searches beyond the

crime itself, we discern no constitutional violation because the

search was limited to a six-month timeframe and limited to a

narrow subset of information. Seymour, ¶¶ 16-18, 43.

¶ 20 To the extent Weaver argues that the use of the Cellebrite

software to download all information contained in the phones

violated the particularity requirement, we are not persuaded. The

forensic examiner explained that Cellebrite downloaded and

converted the data in the phones into a readable format that was

then provided to the detective. The detective then searched the

data consistent with the limitations listed in the search warrant.

The fact that the detective may have observed data not covered by

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the warrant does not render the warrant overly broad or

unconstitutional. Seymour, ¶ 46.

¶ 21 Accordingly, we discern no error in the court’s ruling denying

Weaver’s motion to suppress the search.

III. “In Life” Photograph

¶ 22 Weaver next contends the trial court erroneously admitted an

“in life” photograph of the victim and reasons that any probative

value was substantially outweighed by its prejudicial effect. We

disagree.

A. Additional Facts

¶ 23 Before trial, Weaver asked the prosecutor to provide notice of

all “in life” photographs it planned to admit. Counsel argued any

“in life” photograph lacked relevance because the victim’s status as

a living person was not disputed and could be established through

other eyewitness testimony. Counsel further argued under CRE

403 that such photos might inflame the passions of the jury and

unfairly prejudice Weaver. The prosecutor disclosed two “in life”

photographs, one that depicted the victim with her children and

another showing only the victim.

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¶ 24 The court concluded that one “in life” photo (the one without

the children) was admissible because it was relevant “to establish

that the victim was alive prior to the charged incident” and was not

unduly prejudicial. The court admitted the photo over the defense’s

objection.

B. Standard of Review and Applicable Law

¶ 25 We review a trial court’s evidentiary rulings for an abuse of

discretion. People v. Melillo, 25 P.3d 769, 773 (Colo. 2001). An

abuse of discretion occurs when a trial court’s ruling is manifestly

arbitrary, unreasonable, or unfair. Id.

¶ 26 To be admissible, evidence must be relevant. CRE 402.

Evidence is relevant when it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” CRE 401. A trial court may exclude logically

relevant evidence “if its probative value is substantially outweighed

by the danger of unfair prejudice.” CRE 403. While CRE 403’s

balancing test favors the admission of evidence, the rule helps

preclude issues of little or cumulative probative force. Yusem v.

People, 210 P.3d 458, 467 (Colo. 2009) (citation omitted). Unfairly

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prejudicial evidence has “an undue tendency to suggest a decision

on an improper basis, commonly but not necessarily an emotional

one, such as sympathy, hatred, contempt, retribution, or horror.”

Masters v. People, 58 P.3d 979, 1001 (Colo. 2002) (citation omitted).

¶ 27 Photographs are admissible if they depict relevant facts and

are not unnecessarily inflammatory to incite the jury to unfair

prejudice against the defendant. See People v. Moreland, 567 P.2d

355, 360 (1977). Numerous Colorado decisions have held that “in

life” photographs of homicide victims are admissible. See People v.

Loscutoff, 661 P.2d 274, 277 (Colo. 1983) (finding no abuse of

discretion in admitting photographs of a murder victim and her

young son, taken several months before the murder); People v.

Clary, 950 P.2d 654, 658 (Colo. App. 1997) (finding no abuse of

discretion in admitting enlarged school photograph of victim);

People v. T.R., 860 P.2d 559, 562 (Colo. App. 1993) (finding no

abuse of discretion in admitting photographs of victim and her

husband taken eight months before the victim was killed).

C. Analysis

¶ 28 We discern no abuse of discretion in the court’s admission of

the victim’s “in life” photo, for two reasons.

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¶ 29 First, the photo assisted the prosecution in meeting its burden

to prove the victim was alive and that Weaver caused her death.

People v. McClelland, 2015 COA 1, ¶ 49 (finding that victim’s “in

life” photo was relevant to proving charges of murder and reckless

manslaughter). Moreover, the photo was probative of the victim’s

identity because her son’s testimony connected the person depicted

in the photo to the deceased victim. See State v. Broberg, 677 A.2d

602, 610 (Md. 1996). Additionally, the photo was relevant to show

how the victim appeared before suffering the fatal injuries.

¶ 30 We are not persuaded by Weaver’s argument that, as in

McClelland, the probative value of the photograph was substantially

outweighed by the risk of unfair prejudice. The McClelland division

found three “in life” photos of the victim with family members

unfairly prejudicial because the defendant asserted self-defense and

defense of others at trial, making the victim’s demeanor

immediately before the shooting a crucial issue. Id. at ¶¶ 38, 55.

The division concluded the jury saw “a different image than that

presented by the eyewitness testimony[,]” on which the prosecution

was able to “unfairly capitalize” during its opening and closing

statements. Id. at ¶¶ 51-55.

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¶ 31 Unlike McClelland, the trial court here properly exercised its

discretion to admit a single “in life” photo that depicted only the

victim. The fact that Weaver asserted self-defense does not render

the photo unfairly prejudicial given his statement that he strangled

and stabbed the victim multiple times after she slapped him.

Moreover, the prosecutor did not rely on the photo to elicit the

jury’s sympathy for the victim in closing argument.

¶ 32 Second, we are not convinced that an otherwise relevant “in

life” photograph becomes inadmissible when the defendant

concedes identity or the fact and cause of the victim’s death. Clary,

950 P.2d at 658; T.R., 860 P.2d at 562-63; Wilks v. State, 2002 WY

100, ¶ 13.

¶ 33 Accordingly, we discern no error in the admission of the

victim’s “in life” photograph.

IV. Text Message

¶ 34 Weaver next contends that the trial court erroneously

admitted a text message he sent to the victim and then

compounded the error when it did not permit admission of other

“contextualizing” text messages, under the rule of completeness.

We are not persuaded.

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A. Additional Facts

¶ 35 Before trial, the prosecution disclosed a text message from

Weaver to the victim it intended to admit at trial that read, “I’m a

little sad. I’m kind afraid you’ll fall in love with Mike (is that right?)

and you’ll leave me. But just tell me if it happens. I’ll love you

forever anyway, even if we’re not together.”

¶ 36 Weaver objected and argued that the message was irrelevant

and inadmissible under CRE 404(b). Alternatively, he argued that if

the message was admitted, then he should be able to admit other

text messages in the days before this message under CRE 106 and

the rule of completeness.

¶ 37 Weaver sought to admit the following messages, under CRE

106:

June 10 – Sent from Messenger
William Weaver:
You were very mean just now.
I’m sorry I can’t solve all your problems.
I do try. but what you really need is
money. So go hsve [sic] fun.

June 13
Wendy Werlinger Cupit:
Sorry
I dont [sic] remember anything. Im [sic]
sorry obviously I drank too much. Please
forgive me.

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Where are you? Please come back.

June 14 – Sent from Messenger
William Weaver:
I’m a little sad. I’m kind of afraid you’ll
fall in love with Mike (is that right?) and
you’ll leave me. But just tell me if it
happens. I’ll love you forever anyway,
even if we’re not together.

¶ 38 The trial court granted the prosecution’s request but denied

Weaver’s request to admit the previous messages, finding “these

messages [are not] appropriate under the rule of completeness.”

¶ 39 Weaver moved for reconsideration and argued the message

constituted impermissible character evidence (evidence of jealousy)

under CRE 404(a). The court disagreed and found the message was

not improper character evidence because it merely expressed how

Weaver felt.

B. Standard of Review and Applicable Law

¶ 40 As stated above in Part III, we review evidentiary errors for an

abuse of discretion, and we disregard an error unless it

substantially influenced the verdict or fairness of the trial.

Gonzales v. People, 2020 CO 71, ¶ 25; Hagos, ¶ 12.

¶ 41 Under CRE 404(a), with certain limited exceptions, “[e]vidence

of a person’s character or a trait of his character is not admissible

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for the purpose of proving that he acted in conformity therewith on

a particular occasion.” Thus, a person’s character may not be

placed before the jury unless such person makes their character an

issue. See CRE 404(a)(1).

¶ 42 Additionally, CRE 404(b) provides that “[e]vidence of any other

crime, wrong, or act is not admissible to prove a person’s character

in order to show that on a particular occasion the person acted in

conformity with the character” but may be admissible for purposes

such as “proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.”

¶ 43 CRE 106 codified the common law rule of completeness which

provides that “[w]hen a writing or recorded statement or part

thereof is introduced by a party, an adverse party may require him

at that time to introduce any other part or any other writing or

recorded statement which ought in fairness to be considered

contemporaneously with it.” CRE 106; see also McLaughlin, ¶ 4,

530 P.3d at 1207. If admitting only one part of a written or recorded

statement would be unfair or misleading, the rule of completeness

favors admission of the remaining parts of the statement. Id.

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C. Analysis

¶ 44 We discern no abuse of discretion in the trial court’s

admission of the text message to the victim or in its decision not to

admit other text messages, for three reasons.

¶ 45 First, to the extent Weaver asserts a CRE 404(b) violation, we

reject it. The message does not reflect any bad conduct, but

instead, reflects Weaver’s feelings at the time it was sent. CRE

404(b); see also People v. Casias, 2012 COA 117, ¶46.

¶ 46 Second, we are not convinced that the message constitutes

character evidence, let alone bad character evidence. Contrary to

Weaver’s argument, it was reasonable for the trial court to conclude

that the tone of the message reflects acceptance of the status of the

couple’s relationship, not jealousy, and was relevant to rebut

Weaver’s defense that he killed the victim under a sudden heat of

passion. People v. Helms, 2016 COA 90, ¶ 48 (finding defendant’s

statement not admitted as bad character evidence but to rebut his

defense). Moreover, the prosecution did not admit the message to

show Weaver possessed a jealous character. People v. Trujillo, 2015

COA 22, ¶ 13. Nor did the prosecutor argue Weaver’s jealous

character as evidence of his guilt in closing argument.

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¶ 47 Third, we conclude the message did not create a misleading

impression and thus, there was no reason for the court to admit the

messages that preceded it under CRE 106. The admitted message

revealed there were marital problems, and the messages before shed

no additional light on those problems. Indeed, the tone of Weaver’s

excluded June 10 message casts him as the jealous spouse to a

much larger degree than the admitted message. Therefore, in our

view, Weaver benefitted from the exclusion of that message. Absent

the existence of a misleading impression, we discern no abuse of

discretion in the court’s refusal to admit the additional text

messages.

V. Redacted Statements

¶ 48 Weaver last contends that the trial court erroneously redacted

from his police interview statements he made about his state of

mind and demeanor.

A. Additional Facts

¶ 49 Before trial, the prosecution sought to exclude statements

regarding suicidal ideation and childhood trauma from Weaver’s

interview with the police. During that interview, Weaver described

previous victimization and said if he remained at the jail, he would

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likely become suicidal and that he was not nearly as composed as

he appeared. He explained that no one cared about him in life and

that no one would care if he died. The defense argued the

statements were relevant to Weaver’s state of mind at the time of

the homicide and the time of the interrogation.

¶ 50 The court found the statements were not relevant to what the

prosecution had to prove or to Weaver’s defenses. It noted that

Weaver had not asserted a mental health defense and that any

limited probative value they might have was outweighed by the

danger of unfair prejudice.

B. Standard of Review and Applicable Law

¶ 51 As previously stated, we review a trial court’s evidentiary

rulings for an abuse of discretion and any error under the

nonconstitutional harmless error standard. Campbell v. People,

2019 CO 66, ¶ 21; Hagos, ¶ 12.

¶ 52 “‘Relevant evidence’ means evidence having any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it

would be without the evidence.” CRE 401. But evidence of a

mental disease or defect is only admissible when a defendant enters

20
a not guilty by reason of insanity plea. People v. Moore, 2021 CO

26, ¶ 44. Further, a person may use “[d]eadly physical force” if he

“reasonably believes a lesser degree of force is inadequate” and if he

“has reasonable ground to believe, and does believe, that he . . . is

in imminent danger of being killed or of receiving great bodily

injury.” § 18-1-704(2)(a), C.R.S. 2024. Therefore, self-defense

considers both the reasonable belief and the actual belief of the

defendant. People v. Darbe, 62 P.3d 1006, 1010 (Colo. App. 2002).

C. Analysis

¶ 53 We conclude that all but one of the statements were properly

redacted, for three reasons. First, Weaver defended the case under

a self-defense theory, which requires examining a defendant’s state

of mind at the time of the act. Weaver does not explain how feeling

suicidal after the killing was relevant to or supported that theory.

Thus, we agree with the trial court that the statements were not

relevant to this defense theory.

¶ 54 Second, we are not convinced that the statements were

necessary to rebut the prosecution’s argument that the killing was

deliberate and intentional. The jury heard Weaver’s description to

the police that he acted out of a sudden heat of passion and in self-

21
defense, and he told the police about all his actions between the

time the victim died and the time the police arrived at his house.

The fact that Weaver felt suicidal after the killing does not make it

more or less likely that he acted deliberately or under a sudden

heat of passion. And, as noted by the trial court, Weaver never

endorsed a mental health defense or pleaded not guilty by reason of

insanity.

¶ 55 Nevertheless, of the excluded statements, the one concerning

his demeanor during the interview — that he was not as composed

as it seemed — was arguably relevant to rebut the prosecution’s

argument that he was calm, cool, and collected and, therefore,

acted deliberately in killing the victim. But even assuming the

court erred in excluding this statement, we conclude it was

harmless and does not require reversal because the record contains

overwhelming evidence of deliberation from Weaver’s own

description of the crime.

¶ 56 Finally, Weaver has not explained, nor can we discern, how

childhood trauma he suffered years earlier related to the events in

this case. Accordingly, we discern no error in the court’s exclusion

of these statements.

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VI. Cumulative Error

¶ 57 Finally, because we have found that no errors occurred, we

necessarily reject Weaver’s cumulative error argument. People v.

Walton, 167 P.3d 163, 169 (Colo. App. 2007) (in the absence of

multiple errors whose effect can be compounded, cumulative error

does not exist).

VII. Disposition

¶ 58 The judgment is affirmed.

JUDGE GROVE and JUDGE LUM concur.

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