Melina v. People, 05SC500.

• Decision Date: 25 June 2007
• Docket Number: No. 05SC500.,05SC500.
• Citation: 161 P.3d 635
• Parties: Daniel Gregory MELINA, Jr., Petitioner v. The PEOPLE of The State of Colorado, Respondent.
• Court: Colorado Supreme Court

161 P.3d 635

Daniel Gregory MELINA, Jr., Petitioner v. The PEOPLE of The State of Colorado, Respondent.

No. 05SC500.

Supreme Court of Colorado, En Banc.

June 25, 2007.

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado, Forrest W. Lewis P.C., Forrest W. Lewis, Dean Neuwirth P.C., Dean Neuwirth, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Cheryl Hone Canaday, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.

Justice BENDER delivered the Opinion of the Court.

Introduction

In this appeal we review the unpublished court of appeals decision, People v. Melina, No. 03CA0391, 2005 WL 729537 (Colo.App. Mar.31, 2005), which affirmed Defendant Gregory Melina, Jr.'s conviction for solicitation to commit first degree murder. At trial, the People argued that Melina solicited another person to kill a man whose cooperation with police led to the filing of serious criminal charges against Melina's brother. The People presented evidence that Melina spoke with several people, known and unknown, regarding the solicitation. Melina argues that his conviction must be reversed because the court did not give the jury an unanimity instruction for the solicitation charge.

Courts should give unanimity instructions where there is evidence of multiple acts, any one of which would constitute the offense charged. These instructions require jurors to agree on the specific act or series of acts on which their verdict is based. Courts need not give an unanimity instruction when a defendant is charged with crimes occurring in a single transaction.

Melina contends that the People presented two independent, discrete, and mutually exclusive theories of solicitation to the jurors: one involving Leandro Lopez, and the other involving Robert Padilla. Thus, he claims that his conviction must be reversed because it is impossible to determine whether the jury unanimously convicted him of soliciting Lopez or of soliciting Padilla.

The court of appeals rejected Melina's argument that the court needed to provide jurors with an unanimity instruction, and agreed with the trial court's conclusion that the People charged and tried their case against Melina on the theory that he was involved in a single transaction of solicitation. For this reason, the court of appeals held that the prosecution was not required to select a single solicitee. Melina now argues that this conclusion was in error and that the trial court needed to give an unanimity instruction. We disagree.

Our review of the record supports the trial court's and the court of appeals' conclusions that the prosecution's theory and the evidence presented amounted to a single transaction of solicitation by the defendant to kill one victim. Further, we conclude that the People referenced Melina's conversations with several individuals to corroborate his intent to have someone kill Bueno, not to suggest that Melina had committed several crimes of solicitation. Thus, the trial court was not required to give an unanimity instruction. Hence, we affirm the judgment of the court of appeals.

Facts and Procedural History

A grand jury indicted Melina with first degree murder, conspiracy to commit first degree murder, solicitation to commit first degree murder, and five additional habitual criminal counts. The trial jury found Melina guilty of solicitation but acquitted him of first degree murder and conspiracy. The court then found him to be a habitual criminal and sentenced him to ninety-six years in prison.

All charges arose from the murder of Paul Bueno, a man who had cooperated with law enforcement officials in a case against Melina's brother, Manuel. The People presented evidence at trial that Lopez and Padilla kidnapped Bueno and Padilla killed Bueno. The central question at trial concerned whether Melina was involved in the murder, and if so, what his level of involvement was. Pertinent to our decision here, the People alleged that Melina made several efforts to solicit someone to kill Bueno.¹

The indictment charged Melina with solicitation of several people, "Manuel Daniel Melina, Leandro Salvatore Lopez, Jr. and persons unknown to the District Attorney," between January 1, 1999 and February 1, 2000.² Before voir dire started, the trial court read the solicitation indictment to the jury panel, inserting Robert Padilla's name into the indictment.

At trial, the People did not specify a specific individual as the solicitee, but stated the jurors should "convict this Defendant, Daniel Melina . . . for soliciting the murder of Paul Bueno." The People argued that the solicitation occurred "when this man, Daniel Melina, beg[an] actively seeking someone to murder Paul Bueno." (Emphasis added.) Statements of Melina's intent to have someone kill Bueno pervaded the trial.

The People in their opening statement told the jury that Melina, in addition to statements made to Lopez and Padilla, made similar statements to others, including witnesses Cruickshank and Mascarenas, that he wanted someone to kill Bueno:

[Daniel Melina] begin[s] telling people, such as Rick Cruickshank [and] Vince Mascarenas, "Bueno is snitching, his days are numbered." Daniel Melina, the Defendant in this case, tells Rick Cruickshank somebody needs to take Bueno out, whoever takes out Bueno is going to get paid.

Several witnesses testified that Melina told them that Bueno needed to be killed. Lopez testified that Melina said that he told Padilla that "this dude [Paul Bueno] needed to get it." Investigator Fuller testified that Vince Mascarenas said that Melina told him, "Paul's days are numbered." Robert Osbourne testified that Melina asked him, "You know about Paul Bueno?" and then stated, "[s]omebody should get rid of Paul Bueno." (Emphasis added.) Cruickshank testified that although Melina never directly tried to get him to kill Bueno, Melina had told him that "whoever did [kill Paul Bueno] would get paid." (Emphasis added.) The People claimed that Melina's indirect comments constituted the solicitation to have someone kill Bueno, arguing "there's no difference between me saying . . . [i]f somebody kills .. . Paul Bueno, it's going to be worth a lot of money. That's the same thing as saying, I want you to kill him and then I'll pay you." (Emphasis added.)

In addition to these named individuals, the People argued that the evidence showed that Melina expressed his intention to have Bueno killed to several unknown individuals. In both opening and closing arguments, the People argued that Melina was responsible for getting "the word out on the street" that he and his brother wanted Bueno to be killed. In opening, the People stated:

[T]he Melinas decide they need to get Paul Bueno out of the picture. Manuel Melina begins getting the word out in jail. As his brother, Daniel Melina, gets the word out on the street. They want to let everybody know that Paul Bueno is a snitch and somebody needs to take this guy out . . . . [Manuel tells Joe Zuniga] "how his brother was going to take care of things. . . . Daniel Melina is out on the street getting the word out." . . . The Melinas know they need to find somebody to kill Bueno and Daniel Melina is the one outside, he's the one who has the ability to do it.

(Emphasis added.) During closing the People argued similarly that Melina "begins getting the word out on the streets."

Ultimately the People focused on Melina's interaction with Lopez and Padilla, both of whom the evidence indicated were directly involved in the killing of Paul Bueno. The People argued that Melina was guilty of solicitation, conspiracy, and murder: "[Melina] solicited Padilla and Lopez to commit this murder. He conspired with them. . . . He is the one who set this crime in motion, he is the one calling the shots. . . . He is as guilty of Paul Bueno's murder as if he pulled the trigger himself."

The court instructed the jury that to find Melina guilty of criminal solicitation, it had to find that Melina attempted to persuade another person to commit first degree murder with the intent to promote the murder or under circumstances strongly corroborating this intent:

The elements of the crime of Criminal Solicitation are 1. That the Defendant; 2. in the state of Colorado, at or about the date and place charged; 3. commanded, induced, entreated, or otherwise attempted to persuade another person; 4. to commit the crime of first degree murder, whether as a principal or accomplice; 5. with intent to promote or facilitate the commission of the crime of first degree murder; and 6. under circumstances strongly corroborative of that intent.

(Emphasis added.) Melina did not request that the People identify the specific acts or series of acts that they relied upon to prove the crime of solicitation; nor did he request that the court give the jurors an unanimity instruction.

Melina first argued that an unanimity instruction was necessary on the solicitation count in his post-trial motion for a new trial. In opposition, the People argued that they did not need to specify who was solicited. They told the trial court that this was a charging decision and they could have pled the solicitation as separate counts and alleged each as a separate crime, but they chose to charge only one count of solicitation:³

I don't believe that this is the type of situation that we needed to specify who was solicited. . . . I don't think that we needed to identif[y] each individual that was solicited. . . . Had we done that, they would have been pled as separate counts and each one alleged to be a separate crime.

The trial court denied Melina's motion for a new trial based on the failure of the trial court to sua sponte give an unanimity instruction concerning the crime of solicitation, stating, "I assume at least for purposes of this hearing, that the jury found but one solicitation, although, there may be a number of individuals...