Dolan v. People

• Decision Date: 27 January 1969
• Docket Number: No. 22708,22708
• Citation: 168 Colo. 19,449 P.2d 828
• Parties: John Myles DOLAN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 828

449 P.2d 828

168 Colo. 19

John Myles DOLAN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 22708.

Supreme Court of Colorado, En Banc.

Jan. 27, 1969.

Edward H. Sherman, Public Defender, Denver, in and for the City and County of Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., James F. Pamp, Asst. Atty. Gen., Denver, for defendant in error.

MOORE, Justice ^*.

In an information filed in the district court of the City and County of Denver it was alleged that on the 23rd day of November 1964 John Myles Dolan 'did feloniously, wilfully, and of his premeditated malice aforethought kill and murder one Jane Wood Dolan.' He entered a plea of not guilty and also a plea of not guilty by reason of insanity. The last mentioned plea was subsequently withdrawn and the action went to trial on the not guilty plea. The jury returned a verdict of guilty on the charge of first degree murder and fixed the penalty at life imprisonment in the state penitentiary. Motion for a new trial was filed and overruled, and judgment entered on the verdict.

Argument for reversal of the judgment is presented in this court under nine captions, one of which (numbered V) we will treat summarily. It reads as follows: 'Defendant was Deprived of 'Effective Assistance' of Counsel.' It is clearly disclosed by the brief of the public defender, who did not represent the defendant at the trial, that the arguments presented under this caption appear pursuant to the insistence of the defendant himself and not for the reason that counsel believes there is authority to sustain them. The contentions are that the defendant believes he was deprived of a fair trial and due process of law because:

'A. He contends in his Supplemental Motion that he had requested his counsel to subpoena certain persons, all of whom would have testified that he was not able to form the specific intent to commit the crime with which he is charged. The right to counsel means 'effective assistance' of counsel in the preparation and trial of the case. Powell v. Alabama, (358 U.S. 850, 79 S.Ct. 78, 3 L.Ed.2d 84) supra. Implied in his contention is the duty of responsible counsel to interview and bring into court witnesses who would support the contentions of the Defendant and testify on his behalf;

'B. He further contends that counsel accepted the first 13 jurors impaneled and challenged none of them to ascertain whether they were suitable to hear this case, all to his prejudice;

'C. That pressure was imposed upon him to plead guilty to second degree murder, as a consequence of which he abandoned his plea of insanity;

'D. That none of the instructions were objected to nor were any tendered by his then counsel.'

The constitutional right to the assistance of counsel is not a guarantee against mistakes of strategy or exercise of judgment in the course of a trial as viewed through the 20--20 vision of hind-sight following the return of a verdict in a criminal case. Torres v. People, 159 Colo. 254, 411 P.2d 10; Valarde v. People, 156 Colo. 375, 399 P.2d 245. No error was committed by the trial court in connection with the above mentioned assignments.

We consider the other assignments presented in the brief of counsel for defendant, and will discuss the evidence pertinent to each argument as may be required by the claimed error under discussion. It is argued that:

'The evidence was Insufficient to Support the Verdict of First Degree Murder. The People Failed to Prove Malice or the Unlawful Intent required to Support the Verdict.'

The basis of this argument is that the defendant was so under the influence of alcoholic drink as to be unable to form the specific intent deliberately and premeditately to kill. Analysis of this argument calls for an abbreviated summary of the evidence.

Lela Davidson testified that she worked at the Denver General Hospital and knew Jane Wood Dolan who also worked there. Jane's working hours were from 7:30 A.M. until 4:30 P.M. The witness saw Jane leave work at about 4:30 P.M. on November 23, 1964, and did not see her again.

Virgil Cook testified that he was driving north on Josephine street at about 4:30 in the afternoon of November 23, 1964, within a block of Fifth avenue; there was a parked car in the lefthand driving lane which appeared to be stopped to allow a passenger to alight but it started up and changed lanes to the righthand lane coming out from the curb and missing the witness's car by not more than 'a paper thin edge.' The witness was forced to maneuver his car to avoid hitting another vehicle parked at the righthand curb. He heard a noise from the car, first mentioned, which he described as 'CARPOONG' or a 'sound like he hit the curb.' The witness had passed this car and stopped short of Sixth avenue and looked back to watch the action of the other driver whom he subsequently identified as the defendant. He heard a second 'CARPOONG' and thought the man hit the curb a second time. The righthand door of the car opened and a woman's leg came out as though to get out of the car. The defendant grabbed the woman and started the car forward. 'He grabbed her back in and I guess the motion of the car going forward could have caused her to get back in the car.' The witness decided 'to go after this man.' He followed defendant and took his license number, AW 3570; pulled abreast of the car and got a good look at the defendant, and after following him in and out of traffic the car eluded him at the intersection of 17th and York street (which is the southwest corner of City Park in Denver.)

Mr. Rounsavell, a radar operator for the 138th Aircraft Control Squadron, testified that at approximately 4:30 in the afternoon of November 23, 1964, he was sitting in his car in City Park talking with a friend with whom he worked; they heard a woman screaming; she was wrestling in the snow with a man; the man started to kick and punch her, knocking her down, and proceeded to drag her across the snow; the witness and his companion ran toward the man yelling at him and the man thereupon let go of the woman and ran to his car; they could see blood on the woman's dress and her stockings were down around her ankles. The witness continued:

'A. He drove his car back up onto the lawn. He got out of his car and grabbed hold of her and we were just about on top of him at that time. He let loose of her and got back in his car and pulled out a .38 pistol. I imagine it was on the seat. Anyway, he grabbed a .38 pistol and pointed it at us, and his comments were--he said, 'You two get the hell out of here.' Then he told her to get the hell back in the car.

'Q. What did you do then?

'A. I got the nearest tree between him and me. She ran across the lawn. I hollered for her to follow us. He came back up across the lawn doing an estimated forty miles an hour and he hit her with the left front fender of the car. She turned completely over in the air and hit the ground. Then, he turned around and went out of the park--out the west exit. I stopped somebody then and told him to call the police. We went over there and when we got over there, the first thing she said--she says, 'That is my husband.' She said, 'He is drunk. He is trying to kill me."

The statements made by deceased were admitted in evidence over the 'hearsay' objection of defendant's attorney. The witness identified the defendant as the man involved in the events described above. He gave the police the license number of defendant's car which was the same as that taken by the witness Virgil Cook.

Charles E. Osgood testified that he was an employee at the City Park zoo; that at about 4:30 P.M. on November 23, 1964, he noticed a car over on the grass of the park; that a couple were scuffling on the snow; that he called to them to get the car off the grass; that they didn't pay any attention. He continued: 'Then, this man dragged the girl or woman over to the car and tried to get her in and she broke away.' The man got in his car and drove around, speeding up towards the woman. 'I saw him hit something * * *. She somersaulted and went completely over the hood of the car.' The witness got in his car and drove

'Over there and there was this woman on the ground. I don't remember which side she had blood on her. There was two young fellows there. I went back to the Bird House where the phone was. I was the only one that had a key and we called the police. By the time I got out, the place was swarming with them.'

J. W. Horn, a police officer, testified that at 8:45 P.M. on November 23, 1964, he saw the car, which had been described over police radio, in the Denargo Market; he and his partner turned on the police car lights and followed the defendant for about three blocks into a barricade across the 23rd street viaduct which had been closed; the defendant turned about and making a quick turn drove past the police car. The officer fired four shots but the defendant kept on going until he was stopped three blocks away by another car which blocked an intersection. Thereupon the defendant was arrested. Officers found a .38 caliber revolver on the front seat of defendant's car. The gun contained four live rounds of ammunition. In response to a question concerning the driving of the car by defendant, the witness said, 'The only thing that I would say is that he wouldn't stop when we had the red light on. So far as his driving, it wasn't--well, it was normal driving. He wasn't swerving or anything like that.'

Dr. Ogura testified that the death of Jane Wood Dolan was caused by a bullet which entered the back shoulder on the right side, coursed downward through the right lung, through the diaphragm, the liver, the various segments of the small and large intestines, the bladder, and was ultimately imbedded in the public bone. Another witness, a ballistics expert, stated that the bullet recovered from the body was fired from the defendant's .38...