Bustamonte v. People

• Decision Date: 03 May 1965
• Docket Number: No. 21010,21010
• Citation: 157 Colo. 146,401 P.2d 597
• Parties: Dorothy BUSTAMONTE, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 597

401 P.2d 597

157 Colo. 146

Dorothy BUSTAMONTE, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 21010.

Supreme Court of Colorado, En Banc.

May 3, 1965.

Rehearing Denied May 17, 1965.

William A. Trine, Roger E. Stevens, Boulder, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Aurel M. Kelly, Sp. Asst. Atty. Gen., for defendant in error.

SUTTON, Justice.

Plaintiff in error, Dorothy Bustamonte, hereinafter called defendant, was convicted by a jury of second degree murder following the shooting of one Charles M. Dyson. She was thereafter sentenced to not less than ten years nor more than fifteen years imprisonment at hard labor.

Defendant urges five grounds for reversal which can ge summarized as follows, to-wit:

(1) The trial court erred in refusing to submit to the jury original numbered Instruction No. 14 on self-defense which was later tendered and refused as defendant's Instruction No. 1;

(2) It was error to admit in evidence on rebuttal, over objection, testimony of one Frank Bernal, as to an alleged similar event when she asserts that it in fact was a separate and distinct occurrence unrelated to the present issue;

(3) It was error to admit, over objection, certain evidence labeled as hearsay, whith consisted of what the deceased had purportedly told a friend, Joseph Wolney, Jr., the morning of the shooting;

(4) It was error not to allow defendant to impeach as a hostile witness her witness Joseph Wolney, Jr.;

(5) It was error to submit charges of both first and second degree murder to the jury when allegedly no evidence existed to support a conviction thereunder, and the court erred in not directing an acquittal.

The record discloses the following pertinent facts, viz.: defendant, aged 22 years, and Dyson, a dry wall contractor, were illegally cohabiting in Boulder, Colorado, from June 1962 of December 20, 1962. On December 19, 1962, the couple quarrelled and as a result it was agreed that she would leave. This was later followed by Dyson ordering defendant 'to pack her things and he would take her to Longmont [where she formerly lived] the next day.' That evening, she partially packed her belongings before Dyson came home intoxicated. On the morning of the 20th, Dyson left the house early with his friend Joseph Wolney, Jr. After defendant was sure he was gone, she arose and continued to pack until a Mrs. Ruth Neptune appeared to demonstrate some reducing equipment. Dyson returned soon thereafter, apparently somewhat intoxicated. He was angry and upset. He demanded that Mrs. Neptune let him see defendant who was then partially disrobed and sitting in a chair in a downstairs room where a relaxacisor machine was attached to her body. After some argument, Dyson entered the room in which the defendant was sitting, and shortly thereafter began to curse, strike and beat her; he pulled the machine from her body and threw it towards the door where Mrs. Neptune was standing. Being terrified at his behavior, Mrs. Neptune soon departed in haste. Following her departure, Dyson threw a suitcase at defendant and again cursed her. He then started to slap her, grabbed her hair, threw her to the floor, put his knee on her chest and beat her again. She finally freed herself and ran upstairs pursued by Dyson. He then chased and continued to beat her as she fled from what is described as the north bedroom to the south bedroom.

During the fracas upstairs, Dyson threatened to kill defendant, and at one stage he went back downstairs but soon returned and demanded to know where his guns were. It appears that he was a hunter and owned two rifles and a pistol--the latter always kept loaded--which weapons he had left downstairs to clean, but which defendant had some time prior to the 20th taken upstairs to the north bedroom closet for storage. She testified that all the weapons were loaded then but that she had unloaded the rifles leaving a shell stuck in the chamber of one rifle. Fearing great harm from Dyson when he went downstairs, she took the pistol and put it on top of the dresser under a shirt, in the upstairs south bedroom. When he returned, she told him that it was in the closet in the north bedroom. Enraged at not having been able to locate, it he continued to strike her. She finally managed to escape to the south bedroom, after which she took the pistol from its hiding place and ran across the room. As Dyson came into the room after her, she told him to stop; but he tauntingly and threateningly continued to advance. She then fired the gun and the bullet hit his torso just above the pelvis; it, however, went through his body without striking any bone or vital part and apparently without any present effect on Dyson.

Following the first shot, Dyson said to defendant 'You are crazy,' turned and started down the stairway which was just in front of the bedroom. Defendant testified that because she thought he was going to get some object with which to attack her she followed him to the top of the stairway and fired again when he was about half-way down the stairs. The second shot, which proved fatal, hit Dyson in the back of the head. It appears that at the time the only other weapon known to defendant was a bayonet which she had last seen downstairs in the kitchen; however, she did not recall where it was on this particular day.

After the shooting, and without knowing whether Dyson was dead, defendant fled to her grandparents' home in Longmont and told them what had happened. In due course she turned herself over to the police, cooperated fully in the investigation and gave them statements about the tragedy.

The undisputed testimony of Mrs. Neptune was that defendant had no bruises on her nearly nude body at the time of the relaxacisor demonstration. There was also other undisputed testimony to the effect that she had numerous fresh bruises on her arms and one one thigh, as well as a tender spot on her chest, after the shooting.

With the above facts in mind we turn to the alleged errors.

First, as to defendant's requested instruction on self-defense which the trial court refused. This lengthy instruction attempted to encompass within its borders many statements of law applicable to facts in evidence. It assertedly and obviously was copied almost verbatim from an instruction which appeared in Mr. Justice Hilliard's dissent in Winbern v. People, 116 Colo. 136, 152-153, 180 P.2d 516 (1947). In Winbern the majority of the court refused to review this instruction on procedural grounds; and it certainly did not approve it. Mr. Justice Hilliard set it forth the haec verba and correctly remarked as to the final wording contained therein (i. e. letting the jury put itself in the place of the defendant) that it '* * * is indefensible, inexcusable, prejudicial, and wholly without precedent.' He then discussed the instruction at some length and pointed out that the last part of it called for a subjective test by a jury and not an objective test. In the instant case the trial court was correct in refusing such an instruction when tendered.

The court did, however, submit to the jury its Instruction No. 13 in the statutory language relating to self-defense. In so doing it commented in effect that it felt this was all it should give in view of our decision in Vigil v. People, 143 Colo. 328, 353 P.2d 82 (1960) wherein we had stated that it was proper to give an instruction in the statutory form.

So there will be no future misunderstanding of Vigil, however, we point out that there a quoted and given instruction on self-defense was held to be improperly worded for reasons set forth and we merely commented '* * * it has been stated to be a good rule to couch instructions in the language of the statute * * *.' We did not thereby mean to imply that this is the only type of instruction that is proper. In fact, in Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962) we made it clear that a defendant is entitled to supplementary clarification when additional instructions are necessary adequately to inform a jury in a case; and, that instructions should be geared to the case being tried. In Young v. People, 47 Colo. 352, 355, 107 P. 274 (1910) we pointed out that a defendant has 'a constitutional right to have a lucid, accurate and comprehensive statement by the court to the jury of the law on the subject of self-defense from his standpoint * * *.' Thus, if the statutory instruction does not fit a particular case, or, if it is given and yet other supplementary instructions are needed to state a defendant's position, then such, when properly worded and tendered, should be submitted to the jury.

In the instant case the defendant tendered no supplemental instructions deemed necessary except the objectionable one described above. Since the trial court had performed its duty by the giving of Instruction No. 13 and the jury was thereby instructed as to self-defense in the applicable statutory manner, no error appears as to this issue.

As to the second point for reversal dealing with Frank Bernal's testimony, we face a different problem.

It appears that Bernal and defendant had once illicitly lived together for approximately three years in Longmont and that she bore him two children during the period. On rebuttal, over objection, Bernal was permitted to testify that approximately twenty months prior to the shooting he was vacating their abode for good; and that when he came with relatives to pick up his belongings, she stabbed him with a knife as he was leaving. At the time of the stabbing she was again pregnant, had no food in the apartment and had a baby to care for.

This testimony had first been offered in the People's case in chief to show intent or motive, but was rejected with the right to renew the offer at the close of defendant's case. On rebuttal it was permitted by the trial court (under a limiting admonishment to the jury) for the...