People v. Botham

Decision Date08 June 1981
Docket NumberNo. 27525,27525
Citation629 P.2d 589
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kenneth H. BOTHAM, Jr., Defendant-Appellant.
CourtColorado Supreme Court

J. D. MacFarlane, Atty. Gen., John R. Rodman, Lynne Ford, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Carol L. Gerstl, Sp. Deputy State Public Defender, Norman Mueller, Deputy State Public Defender, Denver, for defendant-appellant.

ERICKSON, Justice.

The defendant-appellant, Kenneth Botham, Jr., was charged with the first-degree murders of his wife, Patricia Botham, his neighbor, Linda Miracle, and her two sons, Chad and Troy Miracle. A jury found the defendant guilty of first-degree murder of Patricia Botham, and also returned verdicts finding the defendant guilty of three counts of second-degree murder for the deaths of Linda, Chad, and Troy Miracle. 1 The trial court sentenced the defendant to three consecutive terms of 20-30 years on the second-degree murder convictions, and to death for the first-degree murder conviction. 2

On appeal, the defendant asserts that the trial judge erred by: (1) denying his motion for substitution of judge and refusing to recuse himself; and (2) not granting his motion for a change of venue. The defendant also claims that the cumulative effect of the errors asserted, coupled with erroneous evidentiary rulings, denied him a fair trial.

The defendant has raised serious constitutional questions which center on whether he was denied a fair trial. We conclude that the combined and cumulative effect of the errors asserted denied the defendant his constitutional right to a fair trial. We reverse the defendant's convictions and remand for a new trial before a different judge.

The Factual Background

The Bothams and Miracles lived across the street from each other in Grand Junction, Colorado. On the night of August 22, 1975, Patricia Botham, Linda Miracle, and her two sons, Chad and Troy, unaccountably left their homes. Several neighbors testified that they heard shouts and noises sounding like gun shots coming from the Botham and Miracle homes in the early morning hours of August 23. One neighbor testified that after hearing the shots, she looked through the window and saw someone resembling the defendant carrying a bundle from the Miracle residence. The same neighbor also remembered seeing a car similar to the defendant's parked in the Miracle driveway. Another neighbor testified that she saw a man physically resembling the defendant outside the Miracle residence around 1:00 or 1:30 a. m. on August 23. None of these witnesses, however, positively placed the defendant in Grand Junction during the early morning hours of August 23.

The defendant testified that he left Grand Junction early in the evening of August 22, for a weekend trip to the mountains in order to do some photography. Instead of camping out as planned, the defendant spent the night in Ouray at Polly's Motel and Campground. Several witnesses testified that they saw the defendant in Ouray on the evening of August 22. None of the witnesses, however, testified that they could place the defendant in Ouray after 11:00 p. m. on August 22. The defendant testified that he spent the night in Ouray and left the following afternoon. He told the jury that he returned to Grand Junction around 4:00 p. m. on August 23. He said that his two sons were home when he arrived, but that he could not find his wife. After checking with several neighbors, he called the police and reported his wife missing. During their search for Patricia Botham, the police went to the Miracle residence and discovered that Linda Miracle and her two sons were also missing. There were no signs of violence or forced entry at either the Botham or Miracle homes, and the police speculated that the four had simply left their homes together.

On September 28, 1975, the body of Linda Miracle was discovered near Bridgeport in the Gunnison River. Patricia Botham's body was discovered in the Gunnison River on October 2, 1975. The following day, the bodies of Chad and Troy Miracle were also found in the river. Each of the bodies was bound with wire to a piece of railroad iron. The coroner determined that Patricia Botham and Linda Miracle died of asphyxiation. Chad and Troy Miracle each died from a .22 cal. gunshot wound to the head.

During the investigation of the homicides, the Grand Junction Police Department and the Mesa County Sheriff's Office uncovered certain physical evidence which they believed linked the defendant to the homicides, including wirecutters and the presence of blood stains in the defendant's automobile. Circumstantial evidence also linked the defendant to the homicides.

The defendant was arrested November 8, 1975. Following a preliminary hearing, an information charging the defendant with four counts of first-degree murder was filed in the district court of Mesa County. Prior to trial, the defendant moved for a change of venue from Mesa County to an area outside the general area served by the Mesa County media. Crim.P. 21. Sections 16-6-101 and 16-6-102, C.R.S.1973 (1978 Repl. Vol. 8). The motion for change of venue was predicated on the theory that extensive and highly prejudicial pretrial publicity in Mesa County prevented the defendant from obtaining a fair trial. The defendant also filed a motion to select a jury from veniremen outside of Mesa County. Both motions were denied. The defendant subsequently discovered information which he asserted showed that the trial judge was prejudiced against him, and he, therefore, moved for substitution of judge pursuant to Crim.P. 21(b) and section 16-6-201, C.R.S.1973 (1978 Repl. Vol. 8). The court denied the motion on the grounds it was untimely and legally insufficient.

The defendant's trial began on November 15, 1976. Jury selection lasted two weeks. Following a two-week trial, the jury commenced deliberation on December 11, at approximately 4:30 p. m., and returned a verdict the following day at approximately 4:30 p. m.

I. Substitution of Judge

The defendant asserts that the trial court erred in denying his motion for substitution of judge. We conclude that the defendant's motion and affidavits established the appearance of prejudice against the defendant and the motion should have been granted.

Several weeks after this case had been assigned to Judge Ela, the defendant's attorneys, who were state public defenders, informed the trial judge that they had just discovered information which tended to show that the judge was prejudiced against the defendant. The second paragraph of defendant's verified motion for substitution of judge stated:

"2. As evidenced by the attached affidavits, defendant believes that this Court, even prior to the time defendant was arrested and charged in the instant case, has made statements which indicate the Court's belief in the guilt of the defendant. The fact of such statements having been made suggests the Court has prejudged the instant case and issues raised thereby."

Two affidavits were filed in support of the motion. One affiant, Rollie Rogers, who was then the Colorado State Public Defender, stated that he was a party to a conversation with Judge Ela when the judge said that there were four unsolved homicides in Mesa County and that there was a suspect but that no one was in custody. The affidavit set forth that Judge Ela said: "I know what I would do, I would put the guy in jail, choke a confession out of him and charge him with the first degree murders." Judge Richard D. Greene, who was the second affiant, corroborated the first affiant's statements.

Judge Ela denied the motion. He ruled that the motion was untimely because more than ten days had elapsed between the time when the case was assigned to him and the time when the motion was filed. The judge concluded: "Admittedly, though local counsel of the Public Defender's office, and Mr. Foreman from the State Public Defender's office did not know of the alleged grounds for disqualification, they are bound by the knowledge of Rollie Rogers, Esq., who is a member and director of their office. Under the rule, the motion was not timely filed." Moreover, the trial judge concluded that the affidavits did not state sufficient grounds for disqualification. The court concluded that the motion and the supporting affidavits were legally insufficient because: (1) the affidavits did not in themselves allege any belief on the part of the affiants that the judge was prejudiced; (2) the judge's remarks could not have been directed towards the defendant individually because the defendant was not in custody at the time the remarks were made; (3) the agency relationship between the defendant and Rollie Rogers, the Colorado State Public Defender, disqualified Rogers from being a proper person to file an affidavit in support of the motion; and (4) the motion was conclusory in nature.

Crim.P. 21(b) provides:

"(1) Within ten days after a case has been assigned to a court, a motion, verified and supported by affidavits of at least two credible persons not related to the defendant, may be filed with the court and served on the opposing party to have a substitution of the judge. Said motion may be filed after the ten-day period only if good cause is shown to the court why it was not filed within the original ten-day period. The motion shall be based on the following grounds:"

"(IV) The judge is in any way interested or prejudiced with respect to the case, the parties, or counsel "

Section 16-6-201, C.R.S.1973, states:

"(1) A judge of a court of record shall be disqualified to hear or try a case if:"

"(d) He is in any way interested or prejudiced with respect to the case, the parties, or counsel."

"(3) A motion for change of judge on any ground must be verified and supported by the affidavits of at least two credible persons not related to the...

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