Hampton v. People

• Decision Date: 16 February 1970
• Docket Number: No. 23126,23126
• Citation: 171 Colo. 153,465 P.2d 394
• Parties: Richard Clyde HAMPTON, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 394

465 P.2d 394

171 Colo. 153

Richard Clyde HAMPTON, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 23126.

Supreme Court of Colorado, En Banc.

Feb. 16, 1970.

Rehearing Denied April 6, 1970.

Edward H. Sherman, Public Defender, Truman E. Coles, Deputy Public Defender, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Robert C. Miller, Asst. Atty. Gen., Denver, for defendant in error.

HODGES, Justice.

The plaintiff in error, Richard Clyde Hampton, will be referred to herein as the defendant. He was charged with killing and murdering one Bobbie Jean McDade feloniously, wilfully and with premeditated malice aforethought. At the trial, evidence was adduced to show the victim had been shot four times: twice in the head; once in the leg; and once in the hand. It was also shown she had had sexual intercourse before her death. The crime took place in her apartment at approximately 3:30 A.M.

The death penalty was withdrawn from the consideration of the jury at the close of the evidence, undoubtedly because of the provisions of C.R.S. 1963, 40--2--3(3) which prohibits that penalty where a conviction is based entirely on circumstantial evidence. The defendant was found guilty by the jury of the lesser included offense of murder in the second degree and was sentenced to a term of not less than 25 nor more than 40 years in the state penitentiary.

As the voir dire of the jury panel began, the district attorney asked generally whether anyone had any moral, conscientious or religious objections to imposition of the death penalty. The district attorney attempted to challenge those veniremen who answered affirmatively but an objection by the defendant was sustained. Thereafter, during the voir dire, the district attorney asked each individual venireman whether he had any moral, conscientious or religious objection to imposition of the death penalty. Those who answered yes were questioned further and asked whether their objection was of long standing or an abiding one. Those who again answered yes were questioned further and their answers fell into one of the following categories: they felt they could not consider or impose the death penalty in any circumstances: or they felt they could not be objective; or they felt their ability or deliberation might be impaired; or they felt they could not follow the instructions of the court if the case involved the possibility of capital punishment. Those veniremen were again challenged and excused for cause.

Several assignments of error pertain to the conduct of the voir dire of the jury panel. Others relate to the conduct of trial during the presentation of the evidence, and to the introduction of several exhibits. Only those claims of error deemed materially significant are discussed. Our review of this extensive trial record reveals no reversible error. The defendant received a fair trial and the verdict of the jury is fully supported by the evidence. We therefore affirm the trial court's judgment.

I.

The defendant first contends that he was denied a fair trial by permitting the district attorney to qualify the jury panel for the death penalty, when at the time, the People knew they had no direct evidence of the alleged homicide and that the case against him consisted entirely of circumstantial evidence.

We think the case of Atencio v. People, 147 Colo. 566, 364 P.2d 575, a case strikingly similar to the instant case, is controlling and fully answers this contention. We therein stated:

'It is true the district attorney, in examining his case prior to presentation in the trial court, might well have concluded that he did not have direct evidence sufficient to warrant the death penalty. However, the charge was first degree murder and it was conceivable that such would be the verdict of the jury. * * * At the time these questions were asked no one could tell exactly what the evidence would show. See State v. Milosovich, 42 Nev. 263, 175 P. 139. The charge here grew out of the death of a young girl by violent means under sordid circumstances. Had the defendant's guilt been proved by direct evidence, the district attorney would have been guilty of neglect had he not sought the death penalty. Considering the unpredictability of trials and the circumstances surrounding this case, the district attorney did not act improperly in qualifying the jury to return the death penalty. Under such circumstances the district attorney should be given considerable latitude in the scope of his voir dire of the jury. The court committed no error on this point.'

II.

The defendant next claims the court committed reversible error by permitting the district attorney to ask the veniremen on individual voir dire whether they had any moral, conscientious or religious objection to imposition of the death penalty because the question injected a religious issue and other extraneous matters into the case; it also denied him a jury which represented a cross section of the community thus assuring the prosecution of a jury more prone to convict.

In our view, the question did not inject a religious issue or deny defendant a fair trial. In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, a case where 47 veniremen were excused for cause after apparently very little questioning on their beliefs concerning capital punishment, the United States Supreme Court stated:

'* * * Specifically, we hold that a Sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced generally objections to the death penalty or expressed conscientious or religious scruples against its infliction * * *.' (Emphasis added.)

The court further stated that the only thing invalid where veniremen were improperly challenged was the sentence and that a Jury so selected could decide the issue of guilt. Even if we were of the opinion that the seven veniremen were improperly excluded- --and we are not of that opinion--the verdict would still stand. See also Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, an appeal which also involved selection of a jury from which all prospective jurors who stated their opposition to capital punishment had been excluded.

Nor can we conclude, as a matter of law, that the jury selected here was more prone to convict than to acquit. As stated in Witherspoon, supra:

'* * * We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.'

The defendant cites no authority, studies, or other data to support his contention, which is the same contention proposed and rejected by the court in Witherspoon.

III.

The defendant also alleges the court erred when it excused the seven veniremen without a showing first having been made that they would not follow the instructions of the court by considering both life imprisonment and death upon finding him guilty of first degree murder. We disagree.

Under both Witherspoon and Bumper, the veniremen were properly excused when each of them indicated at least one of the following: that he felt he could not consider or impose the death penalty in any circumstances; that he felt he could not be objective; that he felt his ability to deliberate might be impaired; or that he felt he could not follow the instructions of the court if the case involved the possibility of capital punishment.

IV.

Defendant next complains that he was denied a fair trial by testimony that certain items of clothing of the defendant introduced into evidence were stained by human blood. He argues that absent a showing that the stains were from either the victim or defendant, the evidence was not relevant or material and its introduction was prejudicial.

The defendant cites no authority for his proposition and we know of none. As noted in Washington v. People, 158 Colo. 115, 405 P.2d 735, Cert. denied, 383 U.S. 953, 86 S.Ct. 1217, 16 L.Ed.2d 215, in order to establish the relevancy and materiality of real evidence, it must only be connected in some manner with the perpetrator, the victim, or the crime. To be admitted, it must be shown to be what it purports to be in relation to the crime charged.

In this connection, see Militello v. People, 95 Colo. 519, 37 P.2d 527, wherein we held:

'* * * The attacks upon much of this evidence, including the contention that it should have been stricken on defendant's motion, are based upon the theory that isolated statements do not prove definite facts. This is seldom possible and never essential. A case of circumstantial evidence can rarely be so constructed. Its very nature implies the weaving of a fabric of known facts, which, often, infinitesimal or immaterial, or even prejudicial when considered alone, become important only as they are tied to others and when so tied lead to inevitable conclusions as to facts in issue. * * *'

See also Corbett v. People, 153 Colo. 457, 387 P.2d 409, Cert. denied, 377 U.S. 939, 84 S.Ct. 1346, 12 L.Ed.2d 302.

Standing alone, the evidence of the blood stains found on defendant's clothing may not have been sufficient to sustain the finding of defendant's guilt, but when considered together with all the other evidence of a violent death and all justifiable inferences which can be drawn therefrom, the evidence was relevant, material, probative and properly admitted.

V.

The defendant claims the court erred in denying him an opportunity to examine two prospective witnesses regarding a conversation they had with a third witness in the corridor outside the courtroom after the exclusionary rule had been invoked. The court permitted counsel to question the third witness who participated in the conversation. ...