Auman v. People, No. 02SC885.

Docket NºNo. 02SC885.
Citation109 P.3d 647
Case DateMarch 28, 2005
CourtSupreme Court of Colorado

109 P.3d 647

Lisl AUMAN, Petitioner,
v.
The PEOPLE of the State of Colorado, Respondent

No. 02SC885.

Supreme Court of Colorado, En Banc.

March 28, 2005.

Rehearing Denied April 18, 2005.


109 P.3d 650
David S. Kaplan, Colorado State Public Defender, Kathleen A. Lord, Chief Appellate Deputy State Public Defender, Denver, for Petitioner

John W. Suthers, Attorney General, Paul Koehler, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, for Respondent.

Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, P.C., Norman R. Mueller, Rachel Bellis, Denver, for Amicus Curiae National Association of Criminal Defense Lawyers.

Colorado District Attorneys' Council, Peter A. Weir, Former Executive Director, Denver, Steven L. Bernard, Assistant District Attorney, Nineteenth, Judicial District, Brighton, for Amicus Curiae Colorado District Attorneys' Council.

BENDER, Justice.

I. INTRODUCTION

In this appeal, we review the court of appeals' decision in People v. Auman, 67 P.3d 741 (Colo.App.2002), which affirmed Lisl Auman's convictions for first degree felony murder and second degree burglary.1 We agree with the court of appeals that, as a matter of law, Auman's arrest did not terminate her liability for felony murder and that whether a co-participant's arrest terminates his or her immediate flight from the commission of the predicate felony while another participant remains in flight is a question for the jury to decide.

However, proof of the predicate crime is just as important an element of the crime of felony murder as is proof that death occurred in immediate flight. Here, the predicate felony was second degree burglary, which requires that the defendant intend to commit the crime of theft when unlawful entry occurs. Hence, we also address whether an error in the theft instruction requires reversal of Auman's conviction for second degree burglary and, if so, then necessarily of her conviction for felony murder as well.

Our review of the record leads us to conclude that the erroneous theft instruction may have deprived Auman of her right to a full and fair jury consideration of her defense to burglary. Hence, we reverse her second degree burglary conviction. Because Auman's felony-murder conviction was based upon the jury's finding that she committed second degree burglary, we similarly reverse that conviction and remand for a new trial.

In November 1997, Auman and a few others moved her belongings out of a room that she had been renting at an eleven-bedroom lodge (the Lodge) in the Denver foothills. In the process of moving her things out, the evidence supported a conclusion that Auman and the others with her broke the padlock to

109 P.3d 651
the room of another tenant, Shawn Cheever, and removed some of his belongings as well as some of Auman's things which were also in Cheever's room

According to the evidence presented, after loading the items into two cars they had driven to the Lodge, the group drove away in their separate cars. When the police attempted to stop the car that Auman was riding in, Matthew Jaehnig, the driver of that car, led law enforcement officers on a high-speed chase into Denver. During this chase, and while Auman held the steering wheel, Jaehnig shot at an officer's car with an assault rifle. He then drove to the apartment complex to which Auman was moving.

Upon reaching the apartment complex, police officers saw Auman and Jaehnig run into a small alcove of the complex, and, shortly thereafter, Auman surrendered to police. She had been under arrest for approximately five minutes when a Denver police officer, Bruce VanderJagt, who was searching for Jaehnig, looked around the corner of the alcove and was shot and killed by Jaehnig. In the period between her arrest and the fatal shooting, Auman did not tell police, despite their repeated questions, that she knew that Jaehnig was probably still cornered in the alcove and that he was armed with an assault rifle.

Under our relevant statute and established case law, each felony-murder case involving immediate flight, in which a death is caused after the arrest of a co-participant, must be decided according to its unique set of circumstances. Unless the connection between the resulting death and the co-participant's arrest, the predicate felony, or immediate flight is so attenuated that the trial court must order the entry of a judgment of acquittal under Colorado Rule of Criminal Procedure 29, the trial court shall submit this issue for decision by the jury.2 We hold that, as a matter of law, arrest, by itself, does not terminate a co-participant's liability for felony murder when death occurs at the hands of another participant who remains in flight.

A conviction for the crime of felony murder requires that a death occur in the commission of a specifically enumerated felony. Here, Auman's conviction for second degree burglary served as the predicate felony for her felony-murder conviction. Second degree burglary requires that a defendant possess the intent to commit a crime when he or she breaks an entrance into a building or occupied structure. The People charged that Auman intended to commit the crime of theft when she, and the others with her, broke the lock and entered Cheever's room. Hence, the jury's understanding of the definition of theft formed an essential element of Auman's conviction for felony murder.

However, the theft instruction omitted a required element of theft. The element which was omitted was the requirement that the defendant acted "knowingly" without authorization in taking the other person's property. Based on this omission, the court of appeals determined that the theft instruction was erroneous. Auman, 67 P.3d at 760. The People agree that the instruction was improper. If a proper theft instruction had been incorporated into the instruction on second degree burglary, the jury, to convict Auman of burglary, would have been required to find that she intended to steal (to knowingly take Cheever's property without his authorization) when she unlawfully entered Cheever's room.

Auman admitted she entered Cheever's room unlawfully but claimed she did so only to retrieve her property and contended that the taking of Cheever's property occurred by the others involved. In making this admission, Auman conceded that she committed the crime of criminal trespass, which is a lesser included crime of second degree burglary and is not burglary. The erroneous instruction here, however, allowed the jury to convict Auman of burglary without considering her defense to that crime. According to

109 P.3d 652
the terms of the improper instruction, it was irrelevant to the jury's decision to convict her of burglary whether Auman intended to take only those items which she believed she was authorized to take when she entered Cheever's room

Auman's defense to burglary centered upon the claim that she had not formed the intent to steal when the unlawful entry occurred. The evidence, when viewed in its entirety, was not so overwhelming that she formed this required intent to sufficiently cure the instructional error. Thus, we conclude that this erroneous instruction substantially affected Auman's right to a full and fair jury consideration of her defense to burglary. It is reasonably possible that the error contributed to Auman's burglary conviction such that the fundamental fairness of her trial is called into question and serious doubt is cast upon the reliability of the jury verdict.

Hence, we reverse the judgment of the court of appeals affirming those convictions which were based upon the erroneous theft instruction: second degree burglary and felony murder. We remand this case to the court of appeals to be returned to the trial court for a new trial on these charges.

II. FACTS AND PROCEEDINGS BELOW

Auman was convicted of felony murder for her role in an alleged burglary which resulted in the shooting death of a Denver police officer, Bruce VanderJagt, on November 12, 1997.

Auman had rented a room at an eleven-bedroom lodge (the Lodge) in Buffalo Creek, Colorado and had dated another Lodge tenant, Shawn Cheever, while she was there. Approximately one week before the alleged burglary, Auman learned that Cheever no longer wanted to continue his relationship with her.

Auman made plans to move out of the Lodge and to move in with her friend, Demetria Soriano, at Soriano's apartment in southeast Denver. On the evening before the alleged burglary, Auman and Soriano were at the apartment with Soriano's live-in boyfriend, Dion Gerze, and Gerze's friends, Matthew Jaehnig and Stephen Duprey. At Auman's request, the group agreed to help her retrieve her belongings, some of which were in Cheever's room, from the Lodge. At that same time, Auman indicated to the group that Cheever had mistreated her.

In a post-arrest interview with police, Auman stated that she had wanted the men to come along as "muscle" in case a problem with Cheever were to arise when she tried to get her things. She admitted she was aware that Gerze and Jaehnig carried guns, and she had asked Gerze not to kill Cheever. In response, Gerze stated he could not promise anything.

At approximately noon on the day of the alleged burglary, the group headed to the Lodge in two cars. Auman rode with Jaehnig in a Trans Am, which, according to Detective Rick Schneider's testimony, was stolen. The others followed in Soriano's car. Prosecution photos showed that Jaehnig was carrying a shotgun and two assault rifles in his car, which were visible from the passenger seat. Auman told police she did not notice the assault rifle until Jaehnig took it out during the later police chase into Denver.

Upon arriving at the Lodge, Auman and Soriano began moving Auman's things out of her room and loading them into the cars. Cheever was at work during this time, and, at some point, the padlock securing his room was cut with bolt cutters. Auman, Gerze, and...

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52 practice notes
  • People v. Miller, No. 04SC414.
    • United States
    • Colorado Supreme Court of Colorado
    • 6 June 2005
    ...a contemporaneous objection is required for the application of a constitutional harmless error standard of review. See Auman v. People, 109 P.3d 647 (Colo. 2005) (noting conflicts). We have, at times, refused to apply that standard in the absence of an objection, holding instead that plain ......
  • In re Subpoena To Crisis Connection Inc.State , No. 19S05–1012–CR–678.
    • United States
    • Indiana Supreme Court of Indiana
    • 23 June 2011
    ...Ritchie by finding that they provide absolute protection from disclosure and, thus, have not required an in camera review.14 See Turner, 109 P.3d at 647 (finding that, unlike the statute in Ritchie, the Colorado privilege has no exceptions); State v. J.G., 261 N.J.Super. 409, 619 A.2d 232, ......
  • People v. Doubleday, No. 08CA2433.
    • United States
    • Colorado Court of Appeals of Colorado
    • 30 August 2012
    ...is not "to be convicted of"); State v. Pixton, 2004 UT App 275, ¶ 9, 98 P.3d 433, 436 (similar); see also Auman v. People, 109 P.3d 647, 651 (Colo.2005) ("A conviction for the crime of felony murder requires that a death occur in the commission of a specifically enumerated fe......
  • People v. Greer, No. 08CA0329.
    • United States
    • Colorado Court of Appeals of Colorado
    • 21 April 2011
    ...before an impartial jury); Miller, 113 P.3d at 748–50 (due process error in instructions pertaining to intoxication); Auman v. People, 109 P.3d 647, 663–66 (Colo.2005) (instructional error of constitutional dimension); People v. Harlan, 8 P.3d 448, 489–90 (Colo.2000) (instructional error co......
  • Request a trial to view additional results
50 cases
  • People v. Miller, No. 04SC414.
    • United States
    • Colorado Supreme Court of Colorado
    • 6 June 2005
    ...a contemporaneous objection is required for the application of a constitutional harmless error standard of review. See Auman v. People, 109 P.3d 647 (Colo. 2005) (noting conflicts). We have, at times, refused to apply that standard in the absence of an objection, holding instead that plain ......
  • In re Subpoena To Crisis Connection Inc.State , No. 19S05–1012–CR–678.
    • United States
    • Indiana Supreme Court of Indiana
    • 23 June 2011
    ...Ritchie by finding that they provide absolute protection from disclosure and, thus, have not required an in camera review.14 See Turner, 109 P.3d at 647 (finding that, unlike the statute in Ritchie, the Colorado privilege has no exceptions); State v. J.G., 261 N.J.Super. 409, 619 A.2d 232, ......
  • People v. Doubleday, No. 08CA2433.
    • United States
    • Colorado Court of Appeals of Colorado
    • 30 August 2012
    ...of "commit" is not "to be convicted of"); State v. Pixton, 2004 UT App 275, ¶ 9, 98 P.3d 433, 436 (similar); see also Auman v. People, 109 P.3d 647, 651 (Colo.2005) ("A conviction for the crime of felony murder requires that a death occur in the commission of a specifically enumerated felon......
  • People v. Greer, No. 08CA0329.
    • United States
    • Colorado Court of Appeals of Colorado
    • 21 April 2011
    ...before an impartial jury); Miller, 113 P.3d at 748–50 (due process error in instructions pertaining to intoxication); Auman v. People, 109 P.3d 647, 663–66 (Colo.2005) (instructional error of constitutional dimension); People v. Harlan, 8 P.3d 448, 489–90 (Colo.2000) (instructional error co......
  • Request a trial to view additional results

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