People v. Moore

902 P.2d 366, 1994 WL 460734

• Court: Colorado Court of Appeals
• Decided: September 25, 1995
• Docket: 93CA0003
• Status: Published

Opinions

Opinion by

Judge RULAND.

Defendant, Kevin Jerome Moore, appeals from the judgment of conviction entered upon a jury verdict finding him guilty of manslaughter. He also seeks review of the 12-year sentence imposed by the trial court. We affirm.

Prior to the homicide, defendant and a group of his high school friends were occupying a street comer. Some of the youths picked a fight with several soldiers, and defendant was observed throwing punches in that altercation. Later, he kicked the door of the ear in which the soldiers left the scene. A witness quoted defendant as stating at this point, “Let’s fight, let’s fight.”

Shortly thereafter, defendant, along with at least one of his schoolmates, began to kick nearby newspaper stands. Defendant and his schoolmates were visibly upset and angry-

Approximately BO minutes later, the victim and his friend, also soldiers, were walking along the street where defendant and his group had congregated. The victim’s friend heard one of the young men ask them, “What are you guys doin’ walkin’ on our block?” The victim then received a blow in the back of the head and fell to the ground.

The victim’s friend attempted to aid the victim but could not because he was attacked by some of the youths including defendant. Eventually, he fought his way to the victim who was lying on the ground unconscious.

At least five of the youths including defendant were still kicking the victim. The friend tried to push the assailants away and pleaded with them to stop. However, one of the assailants kicked the friend, causing him to fall on top of the victim. The kicking blows by defendant and others continued against the victim and there was some evidence that defendant kicked the victim again after the others had stopped. A witness testified that she pleaded with defendant to stop and he replied: “So, I don’t care. If you want to, you can be next.”

Ultimately, the assailants dispersed. The victim died from blunt trauma to the head caused by hemorrhaging inside his skull.

Defendant was charged with extreme indifference murder in the first degree and murder in the second degree. The jury was also instructed on manslaughter and criminally negligent homicide as lesser included offenses. As noted, defendant was convicted of manslaughter.

I.

Relying on People v. Jefferson, 748 P.2d 1223 (Colo.1988), defendant first contends that the trial court committed reversible error by denying his motion for judgment of acquittal on the charge of extreme indifference murder because, he argues, there was insufficient evidence to support that charge. Specifically, defendant claims that the prosecution failed to prove “universal malice” because the “killing conduct” in this case was directed at a particular person, the victim.

In addition, and relying upon cases such as Tate v. People, 125 Colo. 527, 247 P.2d 665 (1952), defendant asserts that the error was not harmless because the jury’s deliberations on the various lesser included charges including criminally negligent homicide likely produced a compromise verdict. We conclude that the trial court did not err in denying defendant’s motion.

Section 18 — 3—102(1)(d), C.R.S. (1986 Repl. Vol. 8B) provides that a defendant commits first degree murder if:

Under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself and thereby causes the death of another.

With reference to the component of universal malice, the Jefferson court, quoting Longinotti v. People, 46 Colo. 173, 102 P. 165 (1909), stated:

By universal malice, we do not mean a malicious purpose to take the life of all persons. It is that depravity of the human heart, which determines to take life upon slight or insufficient provocation, without knowing or caring who may be the victim.

People v. Jefferson, supra, at 1228.

In discussing the constitutionality of the extreme indifference murder statute, our supreme court explained in Jefferson that:

The intent of the legislature has always been to prohibit extremely reckless conduct, when accompanied by evidence of ‘universal malice.’

People v, Jefferson, supra, at 1231.

By adding the words “universal malice” and “generally” to the statute in 1981, the Jefferson court perceived:

[A]n unmistakable indication of the legislative intent to ... limit the application of extreme indifference murder to situations in which the actor demonstrates an indifference to human life generally, as distinguished from indifference to, or willingness to take, a particular human life.

People v. Jefferson, supra, at 1232.

Thus, the court held that the offense is committed under the current statute “only if the killing conduct is of a type which is not directed against a particular person at all” and that the General Assembly intended to adopt different penalties for “knowing conduct of a type directed against a particular individual [second degree murder], and ... killing conduct ... which by its very nature evidences a willingness to take human life without regard to the victim.” People v. Jefferson, supra, at 1233.

The Jefferson court indicated that a variety of factors may exhibit a legally sufficient degree of aggravated recklessness to support a finding of extreme indifference murder:

The nature, duration and intensity of the actor’s culpable state of mind, his manner of killing, his relationship to the vietim(s), and the presence or absence of mitigating factors — may all affect a jury’s determination of whether the extreme indifference statute fits the facts of a particular case.

People v. Jefferson, supra, at 1234.

However, contrary to defendant’s contention, we do not read People v. Jefferson, supra, as limiting the jury’s consideration of this charge here to the evidence relative to the blows inflicted upon the victim by defendant immediately before the victim’s death. Instead, under the circumstances of this case, we conclude that the jury could properly consider the conduct of defendant from and after the time when he and his companions took control of the street corner as bearing upon his state of mind, his reckless conduct, and as indicating his intent to take human life without provocation and without regard to who the victim might be,

As a result, and unlike in People v. Atkins, 844 P.2d 1196 (Colo.App.1992), here, there was evidence to support the charge. Specifically, the jury could have concluded that defendant had indiscriminately shoved, hit, kicked, and threatened one or more persons without provocation near the time of the victim’s death, thus indicating excessively reckless conduct. Further, there was testimony that defendant had worked himself into a frenzy and that he did not know the victim or any of the other people he hit, kicked, or shoved, tending to establish his extreme indifference to the value of human life.

Viewing that evidence in a light most favorable to the prosecution, as we must, we conclude that the jury could well have found defendant guilty of the charge beyond a reasonable doubt. See People v. Gonzales, 666 P.2d 123 (Colo.1983); People v. Braxton, 807 P.2d 1214 (Colo.App.1990). Thus, the trial court did not err in denying defendant’s motion.

II.

Defendant contends that the court made various errors regarding jury instructions. Again, we find no merit in any of his contentions.

A.

Defendant first asserts that the jury was wrongly instructed that second degree murder is a lesser included offense of extreme indifference murder. However, a division of this court held to the contrary in People v. Rodriguez, 888 P.2d 278 (Colo.App.1994). We view that case as dispositive of defendant’s contention.

B.

Defendant further contends that the trial court committed reversible error when it failed to instruct the jury on the misdemeanor charge of third degree assault. While defendant concedes that the tendered instruction was submitted by trial counsel improperly as a lesser included offense, nevertheless, he asserts that the instruction should have been given either as a lesser non-included offense or as a theory of the case instruction. We perceive no error in the court’s ruling.

A court is required to give a lesser included offense instruction whenever there is a rational basis for the jury to acquit the defendant on the greater charge and convict him on the lesser offense. People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974). Likewise, in People v. Skinner, 825 P.2d 1045 (Colo.App.1991), a division of this court held that the same legal standard should be used to determine whether a lesser non-included instruction is appropriate.

Here, defendant proposed that the jury be given an instruction on third degree assault, which is defined as follows:

A person commits the crime of assault in the third degree if he knowingly or recklessly causes bodily injury to another person or with criminal negligence he causes bodily injury to another person by means of a deadly weapon.

Section 18-3-204, C.R.S. (1986 Repl.Vol. 8B).

We agree with the trial court’s conclusion that there was no rational basis upon which the jury could convict defendant of assault on the victim and acquit him of manslaughter. This is because the victim' died from the injuries inflicted by defendant and his companions, and there was evidence both that defendant kicked the victim after his companions had stopped and that defendant’s blows contributed to the cause of the victim’s death.

On the other hand, to the extent that defendant characterized the instruction as a theory of the case, we conclude that this concept was already contained in the given theory of the case instruction.

C.

In regard to defendant’s contention that the trial court erred in failing to instruct the jury on the legal defimtion of “intentionally” in conjunction with the instruction on eomplieity, People v. R.V., 635 P.2d 892 (Colo.1981) is dispositive.

III.

Defendant next contends that the trial court improperly allowed evidence of defendant’s other “bad acts” consisting of the assault which occurred approximately 30 minutes before the victim was assaulted. Again, we disagree.

Generally, evidence of independent wrongdoing or bad acts is inadmissible. People v. Spoto, 795 P.2d 1314 (Colo.1990). Such evidence is admissible, however, when it is an integral part of the criminal transaction and may be relevant for the fact finder to understand the context in which the alleged crime occurred. And, in such circumstances, the evidence is not subject either to the general rule that excludes evidence of prior criminality or to the procedural requirements of Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959). People v. Czemerynski, 786 P.2d 1100 (Colo.1990).

Absent a showing of abuse of discretion, a trial court’s determination on the admissibility of evidence will not be reversed. People v. Lowe, 660 P.2d 1261 (Colo.1983).

Here, the court found the disputed testimony to be part of the res gestae of the criminal transaction. The record reflects no abuse of discretion by the court in that ruling.

Contrary to defendant’s contention, the time interval did not preclude admission of this evidence. In this context, a division of this court has previously allowed evidence that occurred “within hours” to be admitted as “contemporaneous.” Contemporaneous does not mean simultaneous. See People v. Tauer, 847 P.2d 259 (Colo.App.1993).

IV.

Defendant also argues that his cons“onal right to a jury of Ms peers was abndged‘ We not P™ded.

Defendant’s original court-appointed counsel filed a motion to change venue. Defendant now claims that, although he was represented by counsel, at no time was inquiry made as to whether defendant wished to have his trial moved. Following an extensive hearing, the district court ordered that venue be moved from El Paso County to Larimer County. Five months later, defendant, through new counsel, filed a motion to return the venue to El Paso County. His motion was denied.

The decision whether to grant or deny a change of venue rests in the sound discretion of the trial court, and, absent a clear abuse of discretion, a trial court’s decision will not be disturbed. Wafai v. People, 750 P.2d 37 (Colo.1988). Here, there is nothing in the record to indicate, nor does defendant suggest, that the trial court abused its discretion in determining that defendant could receive a fair and expeditious trial in Larimer County.

Defendant’s motion to return the case to El Paso County merely stated that, given the length and complexity of the case, it would be more economical to try the case in that county where his co-defendants apparently were able to impanel a fair and impartial jury. However, as the court noted in its denial of defendant’s motion, extensive pretrial publicity about the murder of the victim had increased during the five months between defendant’s venue motions. Further, the court relied upon the fact that significant difficulties and time were required to pick a jury for a trial of one of defendant’s co-defendants.

In these circumstances, the trial court did not abuse its discretion in determining that venue should not be changed. See Wafai v. People, supra.

V.

Defendant’s final contention is that the trial court abused its discretion in imposing an aggravated sentence of 12 years because its finding of extraordinary aggravating circumstances was based on elements of the crime for which he was convicted. Defendant’s claim lacks merit.

Defendant’s conviction of manslaughter, a class 4 felony, required the court to impose a two to eight year sentence. Section 18-1-105(1)(a)(IV), C.R.S. (1986 Repl.Vol. 8B). If, however, the court found extraordinary aggravating circumstances, it could impose a discretionary aggravated sentence not to exceed 16 years. Section 18-1-105(6), C.R.S. (1993 Cum.Supp.).

When a sentence outside the presumptive range is imposed, the court is required to place on the record its findings as to aggravating circumstances that justify variation from the presumptive range. People v. Vela, 716 P.2d 150 (Colo.App.1985). Further, there must be sufficient facts in the record to support the trial court’s finding. People v. Walters, 632 P.2d 566 (Colo.1981). And, a trial court’s sentencing decision will not be reversed absent a clear abuse of discretion. People v. Watkins, 684 P.2d 234 (Colo.1984).

Here, the court stated that:. “If there ever was a crime of manslaughter that can be characterized by the brutality and extraordinary aggravating [circumstances], this crime was.” The court found that the nature of the offense was extremely violent, the victim lay helpless and unconscious through most of the attack, and the victim in no way provoked the attack. The court further found that defendant not only minimized, but flatly denied his involvement in kicking the victim. The court also noted that defendant had consumed alcohol the night of the incident.

Based on the record before us, we conclude that the trial court considered appropriate factors and made sufficient findings to support its sentence. Hence, it will not be disturbed on review.

Finally, we reject defendant’s assertion that the trial court improperly considered the elements of the offense as extraordinary aggravation. No constitutional or statutory provision prohibits the trial court’s consideration of specific relevant facts, which in isolation, are not necessarily determinative of the essential elements of the offense as extraordinary aggravating circumstances justifying the imposition of a sentence in the aggravated range. People v. Sanchez, 769 P.2d 1064 (Colo.1989); People v. Hernandez-Luis, 879 P.2d 429 (Colo.App.1994).

The judgment and sentence are affirmed.

METZGER, J., concurs. ROY, J., dissents.