Key v. People

• Decision Date: 31 January 1986
• Docket Number: No. 84SC96,84SC96
• Citation: 715 P.2d 319
• Parties: Kipling G. KEY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 319

715 P.2d 319

Kipling G. KEY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 84SC96.

Supreme Court of Colorado,

En Banc.

Jan. 31, 1986.

Rehearing Denied Feb. 24, 1986.

David F. Vela, Colo. State Public Defender, Rachel A. Bellis, Deputy State Public Defender, Denver, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for respondent.

ERICKSON, Justice.

Kipling Key, the defendant, was convicted of first-degree murder ¹ in the El Paso County District Court. The court of appeals affirmed. People v. Key, 680 P.2d 1313 (Colo.App.1984). The court held that although one of the trial court's jury instructions defining "after deliberation" was erroneous, the error was harmless beyond a reasonable doubt. We granted certiorari and now affirm.

I.

Key was charged with the first-degree murder of James Shadday. Key admitted that he killed Shadday but maintained at trial that he acted in a hasty and impulsive manner in a fight with Shadday. ²

Harold Duane Johnson, a friend of both Key and Shadday, was the prosecution's chief witness. His testimony established the facts surrounding the homicide and also provided the jury with evidence about the relationship between Key and Shadday.

Johnson met Key and Shadday in November 1980, when the two men were sharing a room with Johnson's younger brother, John, at the United States Army base at Fort Carson. Johnson was also in the Army at the time of the homicide but lived off the base. Shadday owned a four-wheel drive pickup truck and, according to Johnson, gave Key a set of keys to the vehicle. Johnson testified that Shadday and Key drove into the mountains on a weekly basis to practice target shooting with a two-shot .22 caliber derringer that Key kept, with Shadday's approval, in the glove compartment of the truck. Johnson considered Key and Shadday to be good friends and stated that he had never seen them argue or fight. Prior to his death, however, Shadday had been assigned to another room in the barracks at the request of Key and Johnson's brother. Shadday, according to Johnson, was upset at being asked to move.

Johnson testified that on Wednesday, May 13, 1981, he and Key went to a bar. During a discussion concerning Shadday's truck, Key told Johnson: "I could take Jimmy Shadday up in the mountains and shoot him.... I could take the truck because I had been buying the truck from him...." Other evidence indicated that Key and Shadday had gone shopping for trucks that week but Key had been told by a salesman that he could not qualify for a loan. Johnson had not been alarmed by Key's statement because he did not think Key was serious.

Johnson last saw the victim late in the afternoon on Thursday, May 14. The next day he saw his brother and Key driving on the base in Shadday's truck. Key explained his possession of the victim's vehicle to Johnson by telling him that Shadday had gone AWOL (absent without official leave) after selling his truck to Key. On that same day, Key went to the dealership which sold the truck to Shadday and attempted to have the vehicle's registration changed to his name so that he could take over the remaining payments. Later that evening, Key came to Johnson and confessed that he killed Shadday. Key told Johnson that he and Shadday had gone to the mountains to do some target shooting. He said that they began to argue about the room situation. During an ensuing fistfight, Key shot the victim four times in the head. Johnson testified that Key told him: "And he [Shadday] wouldn't die, and I picked up a rock and mashed his head in, and he still wouldn't die. So I took his truck and ran over his head, and he still wouldn't die. And I got scared and drug him out in the woods."

Shadday's body was discovered by a jogger about noon on Friday, May 15, on Gold Camp Road outside of Colorado Springs. Shadday had four gunshot wounds, two to the front of his head and two to the back of his head. His skull had been crushed, and there were tire-track impressions across his forehead. Empty shell casings, a bloodied rock, and tread marks matching the tires on the victim's truck were found in the immediate vicinity. A number of empty and half-filled beer bottles were also found in the area. The El Paso County coroner testified that Shadday died of a "massive cranial cerebral trauma ... with extrusion or squeezing out of most of the brain at the time of the death." ³ In the coroner's opinion, the victim's blood alcohol level of 0.127 indicated that he may have consumed about six or seven bottles of beer before his death.

The central issue at trial was whether Key killed Shadday after deliberation. Accordingly, in two separate instructions, the trial court instructed the jury on the meaning of deliberation. Instruction No. 14 provided:

The term "after deliberation" means not only intentionally but also that the decision to commit the act has been made after the exercise of reflection and judgment concerning the act. An act committed after deliberation is never one which has been committed in a hasty or impulsive manner.

Instruction No. 15 stated:

The element of deliberation is established by proof of the formed designed [sic] to kill, and length of time is not a determinative factor. The only time requirement for deliberation within the meaning of the first degree murder statute is an interval sufficient for one thought to follow another.

Instruction No. 17 required that the requisite culpable mental state of the defendant had to be proven beyond a reasonable doubt.

The trial court overruled Key's objection to Instruction No. 15 and submitted the instructions to the jury. In the course of the jury's deliberations, the jury sent a note to the trial judge stating: "Need additional explanation of deliberation." The trial court replied that it could not give any further explanation other than what was already contained in the instructions. The jury found Key guilty of first-degree murder. His motion for a new trial was denied and he was sentenced to life imprisonment.

Key appealed, alleging that the trial court committed reversible error in giving Instruction No. 15. The court of appeals acknowledged that the second sentence of the challenged instruction included language that was rejected by this court in People v. Sneed, 183 Colo. 96, 514 P.2d 776 (1973), but held that under People v. Blair, 195 Colo. 462, 579 P.2d 1133 (1978), the error was harmless beyond a reasonable doubt because the evidence of deliberation was overwhelming.

II.

Key concedes that Instruction No. 14 is a correct statement of the law but argues that the second sentence of Instruction No. 15 contradicted the statutory definition of "after deliberation" and effectively lowered the prosecution's burden of proving deliberation as an element of first-degree murder.

Section 18-3-102(1)(a), 8 C.R.S. (1978), provides that "[a] person commits the crime of murder in the first degree if ... [a]fter deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person." The term "after deliberation" is defined in section 18-3-101(3), 8 C.R.S. (1978), to mean "not only intentionally but also that the decision to commit the act has been made after the exercise of reflection and judgment concerning the act. An act committed after deliberation is never one which has been committed in a hasty or impulsive manner." See People v. Bartowsheski, 661 P.2d 235, 242 (Colo.1983) ("[W]hile deliberation requires that a design to kill precede the killing, the length of time required for deliberation need not be long.... What is required for the element of deliberation is that the decision to kill be made after the exercise of reflection and judgment concerning the act.").

The language used in Instruction No. 15--that deliberation requires only an "interval sufficient for one thought to follow another"--originated in Van Houton v. People, 22 Colo. 53, 43 P. 137 (1895). In Van Houton, the defendant appealed his first-degree murder conviction on the ground that the evidence was insufficient to establish deliberation and premeditation. ⁴ We upheld the conviction, stating:

Time ... is not essential if there was a design and determination to kill formed in the mind of the defendant previous to or at the time the mortal wound was given. It matters not how short the interval, if it was sufficient for one thought to follow another, and the defendant actually formed the design to kill, and deliberated and premeditated upon such design before firing the fatal shot, this was sufficient to raise the crime to the highest grade known to the law.

Van Houton, 22 Colo. at 66, 43 P. at 142 (emphasis added). Trial courts incorporated this language into jury instructions which stated that premeditation and deliberation may occur in a time interval "sufficient for one thought to follow another," and such instructions were approved by this court. See Hammil v. People, 145 Colo. 577, 361 P.2d 117, cert. denied, 368 U.S. 903, 82 S.Ct. 182, 7 L.Ed.2d 98 (1961).

However, in People v. Sneed, 183 Colo. 96, 514 P.2d 776 (1973), we disapproved of the Van Houton language. Sneed declared that the legislature intended to abandon the Van Houton definition of premeditation when it defined the culpable mental state of first-degree murder as "premeditated intent" and the culpable mental state of second-degree murder as "intentionally, but without premeditation." We said:

In effect, by emphasizing that "premeditated intent" and "intentionally, but without premeditation" were different, and that premeditation required design before the act, it indicated deliberation and reflection were necessary to create the premeditated intent.

This means that between the forming of the intent to do the act and the act itself, an appreciable length of time must have...