People v. Auman, No. 99CA0016.

Docket NºNo. 99CA0016.
Citation67 P.3d 741
Case DateSeptember 26, 2002
CourtCourt of Appeals of Colorado

67 P.3d 741

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Lisl E. AUMAN, Defendant-Appellant

No. 99CA0016.

Colorado Court of Appeals, Div. II.

September 26, 2002.

As Modified on Denial of Rehearing November 14, 2002.


Certiorari Granted March 24, 2003.1

67 P.3d 748
Ken Salazar, Attorney General, Paul Koehler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

David S. Kaplan, Colorado State Public Defender, Kathleen A. Lord, Chief Appellate Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Peter A. Weir, Executive Director, Colorado District Attorneys' Council, Denver, Colorado; Steven L. Bernard, Assistant District Attorney, Brighton, Colorado, for Amicus Curiae Colorado District Attorneys' Council.

Haddon, Morgan & Foreman, P.C., Norman R. Mueller, Rachel Bellis, Denver, Colorado, for Amicus Curiae National Association of Criminal Defense Lawyers.

Opinion by Judge WEBB.

In this case primarily challenging the breadth of Colorado's felony murder statute, defendant, Lisl E. Auman, appeals the judgment of conviction entered on jury verdicts finding her guilty of felony murder, second degree burglary, menacing, and conspiracy to commit first degree burglary. We affirm.

Defendant formerly lived at a rooming house known as the "Lodge," in Buffalo Creek, Colorado. Each resident had his or her own room. Defendant had dated another resident of the Lodge (boyfriend), spent time

67 P.3d 749
in his room, and kept some of her belongings there

Defendant broke off her relationship with boyfriend, moved out of the Lodge, and visited a girlfriend at her condominium in Denver. They decided to transfer defendant's belongings from the Lodge to the condominium.

Mattheus Jaehnig and his male friend stopped by the condominium the night before the critical events. According to defendant's statements to police, which were admitted into evidence, she told these two men and girlfriend's live-in boyfriend (D.G.) that she felt ill-treated by boyfriend and wanted to "retaliate." The three men agreed to accompany defendant to the Lodge.

Defendant told police she feared the men might hurt boyfriend if he were there and asked D.G. not to kill him. She said D.G. responded he could not make any promises.

Defendant also told police one of the men inquired about boyfriend's possessions and she responded that boyfriend had two large stereo speakers. She said the group decided to go to the Lodge the following day when fewer people would be present. In statements that were presented during trial, defendant, girlfriend, and D.G. all told police they had not planned to take anything other than defendant's belongings.

Around noon the next day, defendant led the group to the Lodge. Defendant rode in a stolen Trans Am driven by Jaehnig. The others followed in girlfriend's car. Jaehnig had a shotgun and two assault rifles in the Trans Am. Defendant told police she did not know Jaehnig was armed when she rode with him to the Lodge.

Defendant told police that upon arrival at the Lodge, Jaehnig stayed with the cars as the "lookout," while defendant and girlfriend went into defendant's room and began gathering her belongings. Defendant then led D.G. and girlfriend to boyfriend's room.

Bolt cutters were used to cut a padlock on boyfriend's door, although who actually did this is unclear. Girlfriend testified that after the padlock had been cut, defendant handed bolt cutters to her. D.G. testified that Jaehnig carried bolt cutters and other tools in the Trans Am.

Defendant, D.G., and the other man entered boyfriend's room. Several items belonging to him were taken, including the two stereo speakers. His ownership of other items taken was disputed, but defendant told police she saw boyfriend's property taken.

While defendant was in boyfriend's room, a resident of the Lodge asked, "Are you taking [boyfriend's] stuff?" Any wrongdoing was denied. However, this resident became suspicious and wrote down the license plate numbers of the two cars.

Various items from both rooms were loaded into the two cars. Defendant and Jaehnig then left in the Trans Am, with Jaehnig again driving. The others drove off in girlfriend's car in the opposite direction. Shortly thereafter, residents of the Lodge called 911, reported a crime, and gave the license numbers.

About ten miles from the Lodge, deputies began following the Trans Am toward Denver and turned on their overhead lights. When Jaehnig did not stop, a high-speed chase ensued. Defendant told police she was very frightened during the chase and asked Jaehnig to stop several times, but he continued into Denver.

Traffic caused the Trans Am to stop near a suburban shopping center. Defendant did not attempt to get out, and the Trans Am sped away. The deputies broke off and then resumed pursuit.

While defendant briefly held the steering wheel, Jaehnig leaned out the car window and shot at the pursuing deputies. Defendant explained to police that Jaehnig told her to take the wheel, but did not threaten her or force her to do so. Defendant also said she steered the car so it would not go off the road and likely kill her.

As the chase continued, the Trans Am struck another car and again briefly came to a complete stop. Defendant told police she did not then attempt to get out of the car because she was afraid of Jaehnig and he had told her, "Don't even think about it."

67 P.3d 750
Jaehnig and defendant reached girlfriend's condominium and went into an alcove outside the entrance. Police officers approached and made several demands for surrender. Defendant stepped out of the alcove. Jaehnig disappeared from the officers' sight

Officers grabbed defendant, forced her to the ground, and handcuffed her. They repeatedly asked her where Jaehnig had gone. Defendant responded that she did not know what they were talking about. The officers then put defendant in a squad car.

Approximately five minutes later, a police officer looked around the corner of the alcove. Jaehnig shot and killed the officer. A gun battle then broke out. After exhausting his ammunition, Jaehnig killed himself with the deceased officer's pistol.

An autopsy revealed high levels of methamphetamines in Jaehnig's system. According to a defense expert at trial, the drug would have made Jaehnig paranoid, violent, and irresponsible.

At police headquarters, defendant consented to a videotaped interview. A few hours later, she agreed to a second videotaped interview, during which she admitted lying to police in the first interview and then described the events differently. Both videotapes were played to the jury.

As relevant here, defendant was charged with first degree felony murder, attempted first degree murder, first degree assault, menacing, first degree burglary, conspiracy to commit first degree burglary, and second degree burglary.

At the request of the People, the second degree burglary count was dismissed the day jury selection began. At defendant's request, however, the court instructed the jury on second degree burglary as a lesser included offense.

The jury found defendant guilty of felony murder, second degree burglary, menacing, and conspiracy to commit first degree burglary.

I. The Information

Defendant first asserts the information charging her with felony murder did not provide adequate notice of the predicate felony, burglary, and therefore the trial court lacked jurisdiction. We do not agree.

The information charged defendant with felony murder in count one as follows:

On or about the 12th day of November, A.D.1997, at the City and County of Denver, State of Colorado, Lisl E. Auman, did unlawfully and feloniously, acting alone and with one or more persons, commit and attempt to commit the felony of Burglary; and, in the course of and in furtherance of said crime that defendant was committing and attempting to commit, and in immediate flight therefrom, the death of a person other than one of the participants, namely [the deceased officer] was caused....

Two other counts of the information separately charged defendant with first degree burglary and second degree burglary. Both counts described the same incident, but the first degree count also alleged use of a deadly weapon, assault, and menacing in connection with the burglary or flight therefrom. Before trial, defendant did not challenge the information.

When faced with a challenge to an information, courts consider defects in both substance and form. A substantive defect "renders void any conviction entered on such charge." People v. Williams, 984 P.2d 56, 64 (Colo.1999). However, an information generally will be deemed adequate in substance if it tracks the language of the pertinent statutes as to essential elements. People v. Williams, supra.

The language in count one follows the language of the felony murder statute, which lists "burglary" among the predicate felonies. See Colo. Sess. Laws 1988, ch. 124, § 18-3-102(1)(b) at 712 (version applicable to defendant's offense). Therefore, the information was substantively sufficient and conferred jurisdiction on the trial court. See People v. Richardson, 58 P.3d 1039 (Colo.App.2002).

The failure to specify an underlying offense is a defect in form. People v. Richardson, supra. "Objections to the form of an information must be made before trial or they are waived." People v. Williams, supra, 984 P.2d at 64. Nevertheless, a defect

67 P.3d 751
in the form of an information may render a conviction void if the defect substantially prejudices rights of the defendant. People v. Richardson, supra. When determining whether a defect in form caused prejudice, courts consider the surrounding circumstances, including the context provided by other counts in the information. People v. Williams, 23 P.3d 1229 (Colo.App.2000)(Williams II).

Although defendant now claims lack of specificity as to which burglary count was the predicate offense for felony murder hindered her...

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18 practice notes
  • People v. Cavitt, No. S105058.
    • United States
    • United States State Supreme Court (California)
    • June 21, 2004
    ...one of the perpetrators retains control over the victim or is in flight from the crime scene. (E.g., People v. Auman (Colo.Ct.App.2002) 67 P.3d 741, 751-752, cert. granted (Colo.2003) 2003 Colo. LEXIS 262; White v. State (2001) 14 Cal.Rptr.3d 298 140 Md.App. 520, 781 A.2d 902, 911; see Morr......
  • State v. Gilberto L., No. 18213.
    • United States
    • Supreme Court of Connecticut
    • June 23, 2009
    ...Shewfelt v. Alaska, 228 F.3d 1088, 1090-92 (9th Cir.2000); State v. Hannagan, 559 P.2d 1059, 1063-66 (Alaska 1977); People v. Auman, 67 P.3d 741, 765-66 (Colo.App. 2002), rev'd on other grounds, 109 P.3d 647 (Colo.2005); Key v. State, 760 So.2d 278, 278-79 (Fla.App.), review denied, 779 So.......
  • People v. Smith, No. 02CA1515.
    • United States
    • Colorado Supreme Court of Colorado
    • October 11, 2005
    ...entire record we conclude reversal would not be required under the higher standard of constitutional harmless error. See People v. Auman, 67 P.3d 741 (Colo.App.2002) (cert. granted Mar. 24, In People v. Stewart, 55 P.3d 107, 116 (Colo.2002), the supreme court concluded that vehicular assaul......
  • Palmer v. Hartley, Civil Action No. 08-cv-00860-PAB
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • December 30, 2010
    ...at trial, as here, nevertheless may render the conviction void if it results in substantial prejudice to a defendant. See People v. Auman, 67 P.3d 741 (Colo. App. 2002)(cert. granted, Mar. 24, 2003); People v. Williams, 984 P.2d 56 (Colo.1999).Page 13Contrary to defendant's contention, the ......
  • Request a trial to view additional results
18 cases
  • People v. Cavitt, No. S105058.
    • United States
    • United States State Supreme Court (California)
    • June 21, 2004
    ...one of the perpetrators retains control over the victim or is in flight from the crime scene. (E.g., People v. Auman (Colo.Ct.App.2002) 67 P.3d 741, 751-752, cert. granted (Colo.2003) 2003 Colo. LEXIS 262; White v. State (2001) 14 Cal.Rptr.3d 298 140 Md.App. 520, 781 A.2d 902, 911; see Morr......
  • State v. Gilberto L., No. 18213.
    • United States
    • Supreme Court of Connecticut
    • June 23, 2009
    ...Shewfelt v. Alaska, 228 F.3d 1088, 1090-92 (9th Cir.2000); State v. Hannagan, 559 P.2d 1059, 1063-66 (Alaska 1977); People v. Auman, 67 P.3d 741, 765-66 (Colo.App. 2002), rev'd on other grounds, 109 P.3d 647 (Colo.2005); Key v. State, 760 So.2d 278, 278-79 (Fla.App.), review denied, 779 So.......
  • People v. Smith, No. 02CA1515.
    • United States
    • Colorado Supreme Court of Colorado
    • October 11, 2005
    ...entire record we conclude reversal would not be required under the higher standard of constitutional harmless error. See People v. Auman, 67 P.3d 741 (Colo.App.2002) (cert. granted Mar. 24, In People v. Stewart, 55 P.3d 107, 116 (Colo.2002), the supreme court concluded that vehicular assaul......
  • Palmer v. Hartley, Civil Action No. 08-cv-00860-PAB
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • December 30, 2010
    ...at trial, as here, nevertheless may render the conviction void if it results in substantial prejudice to a defendant. See People v. Auman, 67 P.3d 741 (Colo. App. 2002)(cert. granted, Mar. 24, 2003); People v. Williams, 984 P.2d 56 (Colo.1999).Page 13Contrary to defendant's contention, the ......
  • Request a trial to view additional results

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