People v. Ager, 94CA0309

• Citation: 928 P.2d 784
• Decision Date: 02 May 1996
• Docket Number: No. 94CA0309,94CA0309
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel Leonard AGER, Defendant-Appellant. . I
• Court: Court of Appeals of Colorado

Page 784

928 P.2d 784

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel Leonard AGER, Defendant-Appellant.

No. 94CA0309.

Colorado Court of Appeals,

Div. I.

May 2, 1996.

Rehearing Denied May 30, 1996.

Certiorari Denied Nov. 25, 1996.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, and John J. Krause, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Thomas R. Williamson and C. Keith Pope, Deputy State Public Defenders, Denver, for Defendant-Appellant.

Opinion by Justice QUINN. ^*

Defendant, Daniel Leonard Ager, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree (felony) murder, two counts of first degree assault, and accessory to murder in the first degree. He also appeals the consecutive nature of the sentences for first degree murder and first degree assault. We affirm.

The prosecution presented evidence that on the night of the homicide, defendant and two friends began drinking in a bar, and then went to the friends' home. After consuming more alcoholic beverages, defendant and his friends decided to go to the victim's trailer to confront him about certain rumors concerning the victim's molestation of a young girl. The victim answered defendant's knock on the door, and defendant immediately assaulted the victim. During the scuffle, defendant gained control of a club that the victim was using to defend himself and beat on the victim many times. Defendant then grabbed a knife from the kitchen, cut the victim's throat, and stabbed him in the side.

Upon his conviction, the court sentenced the defendant to life for first degree murder, 32 years for first degree assault, and 10 years for accessory to murder. The latter sentences were made consecutive to the life sentence but concurrent with each other.

Defendant's companions were also charged with first degree murder, but the charges were dismissed prior to the defendant's trial under plea agreements in which the companions pled guilty to accessory to first degree murder, a class four felony, and second degree assault.

I.

Defendant argues that the indictment was insufficient because the absence of some of the grand jury members during the introduction of evidence at several grand jury proceedings was a structural error that mandates dismissal of the indictment. We disagree.

The United States Supreme Court has described "structural defects" as those constitutional violations which affect the very "framework within which the trial proceeds" and thus defy analysis by harmless error standards, as distinguished from a constitutional error "in the trial process itself" which is subject to harmless error analysis. Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302, 331 (1991); see also Luu v. People, 841 P.2d 271 (Colo.1992).

Examples of structural defects include total deprivation of the right to counsel, unlawful exclusion of members of the defendant's race from a grand jury, and partial or biased trial judges. Arizona v. Fulminante, supra. However, the absence of some grand jury members during the presentation of evidence to that body does not rise to the level of a structural defect.

Colo. Const. art. II, § 23, provides that "a grand jury shall consist of twelve persons, any nine of whom concurring may find an indictment." See also § 13-72-102, C.R.S. (1995 Cum.Supp.) (grand jury shall consist of twelve persons, and assent of nine members required to return true bill).

The grand jury sits not to determine guilt or innocence but to determine whether there is probable cause to believe that a crime was committed and that a specific person committed the crime. United States v. Williams, 504 U.S. 36, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992); United States v. Byron, 994 F.2d 747 (10th Cir.1993); People v. Maestas, 199 Colo. 143, 606 P.2d 849 (1980). Because the grand jury is an accusatory and not an adjudicatory body, there is no constitutional requirement that a grand jury hear and consider exculpatory evidence. United States v. Williams, supra; United States v. Byron, supra; United States v. Leverage Funding Systems, Inc., 637 F.2d 645 (9th Cir.1980).

Moreover, it must be presumed that a grand juror who votes to indict has heard sufficient evidence to believe that a trial is warranted. United States v. Leverage Funding Systems, Inc., supra. Since the evidence missed by an absent juror would only be inculpatory, once enough evidence has been presented to establish probable cause, further inculpatory evidence would only be cumulative and unnecessary for a valid vote to indict. McCann v. Thompson, 144 F.2d 604 (2d Cir.1944).

Here, the grand jury convened and heard evidence on six occasions. A quorum of at least nine jurors was present at each session, while only seven, or at best eight, of the nine jurors required to indict could have heard all of the evidence presented. The trial court, in ruling on defendant's motion to dismiss the indictment, determined that all of the grand jurors were present when defendant elected to testify before the grand jury and that no exculpatory evidence was presented in those sessions where some jurors were absent. Under the circumstances present here, we conclude that there was no structural error in the grand jury proceedings.

II.

Defendant argues that the district court erred in failing to instruct the jurors that they had to agree unanimously upon which ulterior crime, assault or harassment, supported the burglary offense that was the predicate for the felony murder count. We find no reversible error.

Initially, we note that defendant does not direct us to any part of the record that would indicate either that he objected to the pertinent jury instructions or that he tendered any separate unanimity instruction. Therefore, our analysis here is under the plain error standard of review. Under that standard we review the entire record to see if the alleged error so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the conviction. People v. Kruse, 839 P.2d 1 (Colo.1992).

Jury instructions generally are adequate if they specify the alternative ways by which the crime at issue may be committed. Jurors should be instructed that, in order to convict the defendant, they must unanimously agree that the defendant's conduct satisfied any one of those alternative ways. People v. Ledman, 622 P.2d 534 (Colo.1981); People v. Taggart, 621 P.2d 1375 (Colo.1981).

Here, the jury was instructed that "[i]n order to return a verdict, it is necessary that each juror agrees to it" and that the "verdict must be unanimous." The jury also was instructed that the elements of the crime of burglary are: "[t]hat the Defendant ... knowingly, broke an entrance into or entered or remained unlawfully in a dwelling, with intent to commit therein the crime of assault or harassment." Furthermore, the jury was instructed that, unless the prosecution proved beyond a reasonable doubt that defendant committed or attempted to commit burglary and caused the death of a person other than a participant in the burglary in the course of the burglary or attempted burglary, defendant was to be found not guilty.

When the record is considered as a whole, the failure of the court to instruct the jurors that their finding as to the ulterior offense supporting the predicate offense of burglary must be unanimous does not rise to the level of plain error. The jury returned a verdict finding that defendant committed first degree assault with a deadly weapon and assault in the first degree while committing another crime. Therefore, the jurors reached unanimous agreement that defendant committed at least one of the two ulterior crimes, which agreement was sufficient to support the burglary finding. See Thomas v. People, 803 P.2d 144 (Colo.1990) (special verdicts may provide assurance that a verdict is supported by unanimous jury agreement).

III.

Defendant next contends that his conviction for felony murder must be reversed because the ulterior crime supporting the predicate burglary offense was assault, a crime not specifically included in the felony murder statute. We are not persuaded.

The felony murder statute, § 18-3-102(1)(b), C.R.S. (1995 Cum.Supp.), provides in pertinent part that a person commits the crime of first degree murder if:

Acting either alone or with one or more persons, he commits or attempts to commit arson, robbery, burglary, kidnapping, sexual assault in the first or second degree as prohibited by section 18-3-402 or 18-3-403, or a class 3 felony for sexual assault on a child as provided in section 18-3-405(2), or the crime of escape as provided in section 18-8-208, and, in the course of or in furtherance of the crime that he is committing or attempting to commit, or of immediate flight therefrom, the death of a person, other than one of the participants, is caused by anyone.

As defendant concedes, a division of this court has rejected the argument that felony murder cannot be predicated upon an assault directed at the person who was killed. In People v. Lewis, 791 P.2d 1152, 1154 (Colo.App.1989), the division concluded that even though the crime of assault is not a discrete crime named in the felony murder statute, it nevertheless could sustain a count of felony murder by burglary. The division reasoned that:

[I]nasmuch as both murder and assault are crimes which may underlie a felony burglary, there is no logic or reason to preclude a felony murder charge from being based upon a burglary charge that, in turn, is premised upon either an intent to assault or an intent to murder.

We decline defendant's invitation to deviate from the conclusion reached by the division in Lewis.

IV.

Defendant also contends that his conviction for first degree felony murder based on the...