Callis v. People

Decision Date10 December 1984
Docket NumberNo. 83SC110,83SC110
Citation692 P.2d 1045
PartiesTimothy Raymond CALLIS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtColorado Supreme Court

David F. Vela, Colorado State Public Defender, Lyndy Ohneck, Deputy State Public Defender, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Daniel Dailey, Asst. Atty. Gen., Denver, for respondent.

QUINN, Justice.

We granted certiorari to review the decision of the court of appeals in People v. Callis, 666 P.2d 1100 (Colo.App.1982), which affirmed the conviction and sentencing of Timothy Raymond Callis (defendant) for first degree felony murder, first degree burglary, robbery, and first degree sexual assault. The court of appeals held, in pertinent part, that the trial court did not err in admitting that part of the defendant's confession which contained a reference to his having been on federal probation when he committed the crimes in question, and that the trial court properly entered separate convictions and sentences for the crimes of murder and each of the three underlying felonies. We conclude that the trial court should have excised the reference in the defendant's confession to his federal probationary status, but that the failure to do so in this case was harmless error. We also determine that, because the defendant's conviction for first degree sexual assault was a lesser included offense of felony murder, a separate judgment of conviction and sentence should not have been entered on the lesser included offense. We therefore affirm the judgments of conviction and the sentences for felony murder, first degree burglary, and robbery, and reverse the judgment of conviction and sentence for first degree sexual assault.


The defendant was charged in one count with felony murder by causing the death of the victim, Rosey Bowman, on December 14, 1978, in Pueblo, Colorado, while committing or attempting to commit burglary, robbery, and first degree sexual assault, 1 and in three separate counts with first degree burglary, 2 robbery, 3 and first degree sexual assault. 4 A recitation of the pertinent trial testimony is necessary to place in focus the issues before us.

At 6:00 p.m. on December 14, 1978, Rita Schneider, who lived in an apartment about four blocks away from the victim, went to the victim's apartment at 126 East Grant Avenue in Pueblo, Colorado. Ms. Schneider worked as an evening caretaker for the victim, who was a 75 year old semi-invalid, and would usually spend the evening in the victim's apartment in order to tend to her needs. When Ms. Schneider entered the apartment, she found Rosey Bowman lying dead on a couch in the living room. The victim's body was only partially clothed, and her face was covered with a blanket and her left wrist tied to the couch. The apartment was in complete disarray at this time.

Police officers responding to the scene detected an identifiable odor of perfume throughout the apartment. Ms. Schneider informed the officers that the defendant, whom she knew as "Tim" and who lived in the same apartment building in which she lived, had been at the victim's apartment two days earlier. When Ms. Schneider opened the door on this occasion the defendant appeared surprised and said, "Hi, Rita. I didn't know you worked here." Ms. Schneider asked him what he wanted and he replied that he was looking for "George" in apartment 1. At this point the victim broke into the conversation and informed the defendant that there had never been a "George" living in that apartment and that her grandson had just moved in there. The defendant asked Ms. Schneider if she worked at this apartment all the time, and she informed him that she just worked there in the evenings. The victim again entered the conversation at this point and informed the defendant that another person worked for her in the mornings and that she stayed by herself in the afternoons.

Several hours after the victim's body was found, Pueblo police officers arrested the defendant at his apartment. Discovered in the apartment were a number of items belonging to the victim, including a bottle of pills with her name on it. The arresting officers detected a strong odor of perfume, similar to the odor in the victim's apartment, emanating from the defendant's person. Upon being advised of his Miranda rights, the defendant acknowledged that he understood them. When the officers asked the defendant his name, the defendant replied "Tim Calhoun" and signed a written advisement "Timothy James Calhoun." The officers then took the defendant to the police station.

At the police station the defendant was again advised of his Miranda rights and, after acknowledging that he understood them, agreed to make a statement. The statement, which was tape recorded and subsequently typewritten, was a response to questions by Officer Hurley of the Pueblo Police Department. The interrogation commenced as follows:

[OFFICER]: Tim would you tell me your full correct name?

[DEFENDANT]: Timothy Raymond Callis.

[OFFICER]: Callis?

[DEFENDANT]: Ca-ll-is.

[OFFICER]: Why do we have a name of Timothy James Calhoun, Tim?

[DEFENDANT]: It's just a name I've been going under so the Federal Probation Officers don't get ahold of me.

The defendant then proceeded to tell the officer that he and a person named Pat drank some beer and then "proceeded to go rip off this house." The defendant admitted putting a cover over the victim's head and raping her for two or three minutes on the couch. He stated that he then looked throughout the house for money and other valuables while his companion Pat proceeded to rape the victim. In a subsequent interview with the officer, the defendant stated that he lied to the officer when he told him that a person named Pat also participated in the crimes. The defendant on this occasion admitted that he covered up the victim's face, tied her wrist to the couch, raped her for some period of time, and when she was no longer moving or making any sounds he got off of her and took money, jewelry, a bottle of pills, and other items from the apartment.

Prior to trial the defendant moved to suppress his confession on the basis that it was involuntary due to his state of intoxication. The trial court denied the motion to suppress, finding, inter alia, that the defendant "logically and carefully explained why he used an assumed name" at the time of his arrest. At trial the prosecution offered into evidence the defendant's confession to Officer Hurley on the evening of his arrest. The defendant objected to the reference in the confession to his federal probationary status and requested that this part of the confession be excised because it constituted a prejudicial reference to prior criminal conduct. The trial court, relying on the rule that any confession or admission made by the defendant is admissible in its entirety, e.g., McRae v. People, 131 Colo. 305, 281 P.2d 153 (1955), overruled the defendant's objection, denied the request for excision, and admitted the entire statement. 5

The prosecution also presented evidence of admissions made by the defendant to two of his friends. One of the defendant's roommates, John Deitalbach, testified that on the morning of December 14, 1978, prior to the killing, the defendant suggested that they "knock a place over to get ourselves some money." Deitalbach rejected the defendant's suggestion. Later that same day the defendant said to Deitalbach that he had "killed someone" and gave Deitalbach a gold watch and a brooch as a Christmas present. After his arrest the defendant telephoned another friend, James Hurley, who testified that the defendant told him that "he killed some old lady, that he threw a blanket over her head and stuffed it in her mouth because she was screaming and he thought she suffocated."

Additional evidence established that fingerprints lifted from the victim's apartment matched those of the defendant, and hairs found at the crime scene bore similar characteristics to samples taken from the defendant's head and pubic area. A pathologist who performed an autopsy on the victim at approximately 9:00 p.m. on December 14, 1978, testified that the cause of death was suffocation. The pathologist found motile spermatozoa in the victim's vagina, a finding consistent with sexual intercourse within twenty-four hours of the examination, and also observed lacerations on her face and head, as well as small purpuric spots on her tongue and lungs, all of which were consistent with death by suffocation.

At the conclusion of the evidence the trial court instructed the jurors that the prosecution had the burden of proving the voluntariness of the defendant's confession, and that if the jurors were not so convinced they should disregard the confession. 6 The jury returned guilty verdicts to first degree murder, first degree burglary, robbery, and first degree sexual assault. The trial court entered judgments of conviction on the verdicts and sentenced the defendant to life imprisonment on his conviction for felony murder, and concurrent sentences of 30 to 40 years for first degree burglary, an indeterminate term not to exceed ten years for robbery, and 40 to 50 years for first degree sexual assault. The defendant appealed to the court of appeals, which affirmed the judgments of conviction and sentences. We granted certiorari to review two questions: whether the trial court erred in admitting into evidence that part of the defendant's confession in which he referred to his federal probation; and whether the trial court erred in entering separate judgments of conviction and sentences on felony murder as well as each of the three underlying felonies.


We initially consider the propriety of admitting the defendant's confession without excising the defendant's reference to his federal probationary...

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