People v. Bartowsheski, 81SA556

• Decision Date: 07 March 1983
• Docket Number: No. 81SA556,81SA556
• Citation: 661 P.2d 235
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael J. BARTOWSHESKI, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 235

661 P.2d 235

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael J. BARTOWSHESKI, Defendant-Appellant.

No. 81SA556.

Supreme Court of Colorado En Banc.

March 7, 1983.

As Modified in Denial of Rehearings

April 18, 1983.

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., John Daniel Dailey, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, James England, Deputy State Public Defender, Denver, for defendant-appellant.

QUINN, Justice.

The defendant, Michael J. Bartowsheski, appeals from judgments entered in the Arapahoe County District Court on guilty verdicts to the charges of first degree murder after deliberation, first degree felony murder, and robbery, all of which involved a single victim. ¹ Bartowsheski's claims of error relate to the trial court's refusal to grant a second change of venue due to allegedly prejudicial publicity, the claimed insufficiency of evidence for the crimes charged, the trial court's failure to instruct on voluntary manslaughter, and the entry of judgments of conviction on all three charges. Although we conclude that the defendant was properly convicted of murder in the first degree, we hold that it was inappropriate for the trial court to enter separate judgments of conviction on the three separate verdicts. We accordingly vacate the judgments of conviction and remand the case for the entry of appropriate judgments and for resentencing.

I.

The defendant was originally charged in separate counts with first degree murder after deliberation, ² felony murder in the course of robbery, ³ and robbery. ⁴ The charges arose out of the death of Michelle Talbott, an eight year old child, on December 16, 1978, in her home in Elbert County, Colorado. The brutality of the killing and the victim's age generated extensive publicity about the homicide. The Rocky Mountain News and the Denver Post, the two major Denver newspapers, published approximately fifteen articles about the crime prior to the defendant's trial. Several of these articles were published in December of 1978, when the child was killed, and the others were published in June and July of 1979. Jury selection had begun in the Elbert County District Court on June 26, 1979. The defendant made several requests for a change of venue due to pretrial publicity. On the fourth day of jury selection, after the interrogation of ninety-seven prospective jurors had produced only five persons who could potentially serve on the jury, the motion was granted and venue transferred to neighboring Arapahoe County. On July 9, 1979, jury selection again began. Over a period of six days ninety-eight potential jurors were examined. During the voir dire the defendant again made repeated requests for a change of venue. The trial judge denied these requests, but expressly noted that any doubt about whether a juror should be excused would be resolved in favor of the defendant. ⁵ Of the ninety-eight potential jurors, approximately twenty-eight were excused for cause on the basis of a preconceived opinion due to pretrial publicity, while at least one-fourth of the panel could not recall ever having read or heard about the case. The defendant did not challenge for cause any of the fourteen jurors actually selected to serve, each of whom unequivocally professed an ability to be impartial. ⁶ Of these jurors only three remembered details of the case, and the extent of their knowledge was limited to basic facts.

On July 17, 1979, the evidentiary phase of the trial commenced. The prosecution's evidence was circumstantial and established the following facts. In November of 1978 the defendant was hitchiking in Nevada and was given a ride by a young man named Boyd Tarwater who, like the defendant, had no specific destination. A friendship developed between the two men, and Tarwater agreed to accompany the defendant to Colorado, where Bartowsheski knew of possible employment prospects through a man who owed him money. The man that the defendant had in mind was Richard Talbott, who with his wife Nancy and their four children lived in a home in Kiowa, Colorado. When the defendant and Tarwater arrived in Kiowa in late November, Talbott did secure employment for them at his landscaping business and also permitted them to share a basement room in the Talbott home with their twelve year old son.

On the evening of Friday, December 15, 1978, the defendant and Tarwater decided to spend the evening visiting several bars. They left the Talbott home just as Richard Talbott was arriving. They asked him to join them and he refused. A short discussion followed between Talbott and the defendant concerning the money which each believed to be owing from the other. After Talbott suggested that they discuss the matter on the following morning, the defendant and Tarwater drove off.

The defendant and Tarwater spent the evening at several bars, where they played pool and drank beer. In the course of the evening they visited the Stagecoach Inn in Franktown, Colorado, where they experienced difficulties in starting Tarwater's pickup truck and were forced to secure the assistance of another bar patron who was able to "jump start" the vehicle. They eventually headed back to the Talbott home and decided on their way to leave Colorado in favor of a visit to Tarwater's relatives in Kansas. They also decided, in order to compensate for the money Talbott allegedly owed the defendant, to steal several guns owned by Talbott. They accordingly stopped at the Talbott home.

According to Tarwater, who testified as a prosecution witness, he remained in the truck to keep it running while the defendant went into the Talbott home to recover their possessions and the guns. When the defendant failed to return in five or ten minutes, Tarwater fell asleep. He was awakened by the defendant who was sitting on the passenger's seat wrapped in a blanket and tapping him on the arm. The defendant told him that they had to leave and they proceeded to drive towards Kansas.

Nancy Talbott awoke about 4:00 a.m. on December 16th. On her way to the bathroom she noticed that the upstairs closet door was open and that her husband's guns, usually kept in the closet, were missing. She descended to the basement, where she saw her son but did not see either the defendant or Tarwater. Returning to the living room, she noticed blood on a pillow on the couch where eight year old Michelle Talbott had been sleeping. Upon investigating more closely she discovered that Michelle had been subjected to a brutal attack and had bled profusely from several wounds. Mrs. Talbott awoke her husband and, after discovering that their telephone lines had been cut, drove to the sheriff's nearby house. The ensuing investigation by law enforcement officers revealed indications of blood on the doorknob to the upstairs closet, on a nearby piece of paper and wall plaque, and on the upstairs telephone. The telephone lines, which had been cut on both the upstairs and downstairs telephones, had been positioned in such a manner as to conceal the cutting. A number of items were missing from the house, including three guns from the upstairs closet, $283 in cash from the upstairs bathroom, two piggy banks, a penny jar and a green rug from the kitchen, a quilt and a blanket from the basement, and a single boot which apparently had been on the steps leading upstairs.

About 4:30 a.m. on the same day the defendant and Tarwater pulled their pickup truck into a Husky truckstop in Limon, Colorado, hoping to replace a tire which had blown out. After Tarwater declined to buy a tire from the manager of the station because of its high price, the defendant picked up money from the floorboard of the truck and negotiated a purchase price. On this occasion, Tarwater, the station manager, and another attendant noticed a considerable amount of blood on the defendant's hands, face and clothes, which he passed off as resulting from a nosebleed. The defendant then went to get something to eat and cleaned up in the restroom of the restaurant. Upon resuming their trip to Kansas, the defendant and Tarwater stopped at a rest area just across the Kansas border where the defendant discarded his bloody blue corduroy pants and changed into a pair of Tarwater's fatigue pants. They traveled until about 10:30 a.m., when a Kansas highway patrol officer, who had been alerted as to their possible destination, signalled them to pull over. The defendant urged Tarwater, who was driving the truck, to outrun the officer. Tarwater, however, stopped the truck, and the officer took them into custody. Acting upon information given to them by Tarwater, Kansas officers recovered the trousers which the defendant had previously discarded at the Kansas rest area.

The defendant, upon questioning, related that he could not recall the events of the previous evening, except for eating at the Talbotts' residence and frequenting several bars. In response to the question, "You don't remember cutting the little girl's throat?", the defendant put his face in his hands, became silent, and stated: "I may have done it. I don't remember. I could have done it." Blood located on the defendant's short sleeved white shirt, his blue corduroy trousers, and his jacket was found to be consistent with that of the victim, Michelle Talbott, and inconsistent with that of either the defendant or Tarwater.

An autopsy performed on the victim by Dr. Ben Galloway, Deputy Coroner for the City and County of Denver, disclosed that Michelle had sustained eight wounds, each of which had been inflicted by a sharp cutting instrument. One of the puncture wounds had been inflicted near the right ear and extended into the brain. Another puncture wound was to the chest and extended into the underlying lung tissue, while still another resulted in the laceration of a major branch of the lung veins. There was also a...