People v. Aalbu
| Citation | 696 P.2d 796 |
| Decision Date | 11 March 1985 |
| Docket Number | No. 83SA141,83SA141 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gene Brian AALBU, Defendant-Appellant. |
| Court | Supreme Court of Colorado |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, Colorado State Public Defender, Linda J. Hotes, Deputy State Public Defender, Denver, for defendant-appellant.
The defendant, Gene Brian Aalbu, appeals his conviction of criminal solicitation to commit first degree murder. The issues which he raises include the claimed unconstitutionality of the criminal solicitation statute, § 18-2-301, 8 C.R.S. (1978), the failure of the trial court to sever charges and to suppress evidence, several evidentiary rulings made during the trial, the failure of the trial court to instruct the jury on the affirmative defense of renunciation and certain lesser included offenses, and the asserted insufficiency of the evidence to support the conviction. Finding no error, we affirm. 1
The defendant was charged in the District Court of El Paso County with solicitation to commit first degree murder, § 18-2-301, 8 C.R.S. (1978), allegedly committed between April 20 and May 30, 1980, in El Paso County, Colorado. 2 The charge was filed on June 17, 1980, and was based primarily on a series of conversations which the defendant had with James Ross concerning a plan to kill Mark Olson. These conversations took place while the defendant was confined in the El Paso County jail on a sentence imposed as a condition of probation on a recent drug conviction. James Ross was also confined in the El Paso County jail during part of this same period of time. On September 26, 1980, the information was amended by adding a count of tampering with a witness. § 18-8-605, 8 C.R.S. (1978). This charge was based on the defendant's alleged attempt to induce Olson to testify falsely at a providency hearing conducted in the District Court of El Paso County on January 21, 1980, at which Olson pled guilty to conspiracy to dispense a narcotic drug.
Prior to trial the defendant filed several motions including the following: a motion to dismiss the criminal solicitation charge on the ground that the statutory proscription of section 18-2-301 was unconstitutionally vague and overbroad in violation of due process of law; a motion to sever the charge of criminal solicitation from the charge of tampering with a witness; a motion to suppress taped telephone conversations between the defendant and James Ross; and a motion to authorize the admission of the results of a polygraph examination which the defendant had recently taken. The court denied all the defendant's motions except that concerning the polygraph evidence, upon which it deferred ruling until trial.
A summary of the evidence at trial will place in focus many of the issues raised by the defendant. The prosecution's evidence established that the defendant, along with Mark Olson and Richard McAllister, was charged in 1979 in the District Court of El Paso County with possession, sale, and conspiracy to possess and sell a narcotic drug, cocaine. These charges arose out of several drug transactions in August and October 1979, including a sale of cocaine by the defendant and Olson to an undercover police officer on October 13, 1979, at Olson's home. 3 On January 21, 1980, Olson pled guilty to conspiracy to dispense a narcotic drug in exchange for dismissal of the other counts. The defendant, according to Olson, attempted to induce him to testify at the providency hearing that he (the defendant) was not involved in the drug transaction, but was merely handling the money obtained from the sale as a favor to Olson. Olson refused to accede to this request and instead told the judge that the defendant had supplied the cocaine and received most of the money obtained from the sale. Immediately after the providency hearing the defendant confronted Olson outside the courtroom and told him that he (Olson) "had really screwed him." On February 26, 1980, the defendant pled guilty to conspiracy to possess narcotic drugs in exchange for the dismissal of the charges of selling and possessing a narcotic drug. The court sentenced the defendant to five years probation on the condition that he serve seventy-five days in the county jail and make restitution in the amount of $1400, which represented one-half of $2800 in unrecovered government funds which he and his confederates had allegedly received from other cocaine sales to undercover police agents. Prior to admitting any evidence relating to the October 1979 drug transaction involving the defendant and Olson, the trial court instructed the jurors in this case that they were to consider such evidence for the limited purposes of showing a motive to commit criminal solicitation and of establishing that, with respect to the charge of tampering with a witness, there was an official proceeding pending against both the defendant and Olson.
Evidence presented by the prosecution also established that while the defendant was confined in the El Paso County jail on the seventy-five day sentence, he met James Ross, an inmate ward representative, who was assigned to the same part of the jail as the defendant. At first, according to Ross, he and the defendant engaged only in general conversation, but later the defendant told him that there were some people whom he wanted killed. The defendant initially mentioned as targets some members of the police department who had been involved in the cocaine investigation and also Mark Olson and Richard McAllister. In later conversations, however, the defendant focused exclusively on Olson as an intended victim. Ross testified that he agreed to kill Olson in exchange for a gun, a pickup truck, and some money from the defendant.
Ross, who had served as a police informant on prior occasions, reported these conversations to a police detective and agreed to participate in further conversations with the defendant in exchange for money payments and favorable consideration on criminal matters pending against himself. He was initially fitted with a body transmitter, but this device proved unsatisfactory because background noise within the county jail made conversations between himself and the defendant inaudible. During these unrecorded conversations, according to Ross, it was agreed that the defendant would arrange for his girlfriend to deliver a truck, $200 cash, and a gun to a certain location in Colorado Springs so that Ross could then proceed to carry out his part of the agreement. Ross identified a map allegedly drawn by the defendant which showed the location of Olson's house. 4 After the defendant drew the map on a piece of paper, Ross wrote on the other side of the paper a physical description of Olson given to him by the defendant and the words "strong arm or kill." The map, with the added notations of Ross, was admitted into evidence during Ross' testimony.
Shortly after these initial unrecorded conversations, the police arranged for Ross' release from jail. Pursuant to police suggestion, Ross would call the jail and leave a message for the defendant to call him back at a specific number. When the defendant would call Ross back, the conversation would then be tape recorded. These telephone conversations between the defendant and Ross took place over the period from April 30 to May 27, 1980. On April 30 Ross told the defendant that he had waited at the specified location but that the defendant's girlfriend had not appeared with the truck, gun, and money. The defendant responded that his girlfriend was unable to get the truck from his parents' home, as they were out of town. The next day, after the defendant's girlfriend again failed to appear, Ross asked the defendant whether he was still serious about the plan. The defendant replied, "Damn right." During this conversation the defendant gave Ross his girlfriend's phone number so that Ross could make arrangements for the meeting directly with her. Ross later telephoned the defendant's girlfriend, but she was reluctant to do anything until she spoke to the defendant. Ross again telephoned the defendant, informing him of the conversation with the girlfriend and suggesting that he (Ross) use his own car rather than the defendant's truck. The defendant agreed to this suggestion. Ross told the defendant that he wanted "to get it over with," to which the defendant replied, "Yeah, I do too." During this conversation the defendant also inquired of Ross whether he had a home phone where he could be contacted.
In a later conversation the defendant, believing that his attorney would be successful in obtaining his early release from jail, told Ross that there was "no sense wasting money" on the plan since he (the defendant) would be getting out of jail shortly. When the early release did not occur, however, the defendant said to Ross, "I wouldn't really mind you nailing this guy," although he was not sure "if it will do me any good or not." Because it later developed that the defendant's girlfriend would have no involvement with the plan, the defendant told Ross that he would contact a friend, Mark Hill, about getting Ross what he needed to carry out the plan. The defendant gave Ross Hill's telephone number and urged Ross to contact Hill at work. The defendant cautioned Ross to "[d]o things neatly, whatever you do."
On May 29, 1980, the police ended the investigation because they became concerned that the defendant might have enlisted help from others over whom the police had no control. Ross' testimony was supplemented by that of the detective working with him. This detective, without objection by the defendant, testified that during the course of the investigation he believed Ross was providing accurate information about the defendant's...
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