People v. Bowman

• Decision Date: 26 September 1983
• Docket Number: No. 81SA557,81SA557
• Citation: 669 P.2d 1369
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Melvin BOWMAN, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1369

669 P.2d 1369

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Melvin BOWMAN, Defendant-Appellant.

No. 81SA557.

Supreme Court of Colorado En Banc.

Sept. 26, 1983.

Rehearing Denied Oct. 17, 1983.

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

J. Gregory Walta, State Public Defender, Linda Hotes, Deputy State Public Defender, Denver, for defendant-appellant.

LOHR, Justice.

The defendant, Melvin Bowman, appeals ¹ from his convictions of two counts each of first degree murder after deliberation, ² felony murder by arson, ³ and extreme indifference murder, ⁴ and one count of first degree arson. ⁵ After trial to a jury in the District Court for Arapahoe County, Bowman was found guilty of all charges and received six concurrent life sentences for the murder convictions and a sentence of twenty-five to thirty years for arson, also to run concurrently. Among numerous other assertions of error, the defendant challenges the limitations imposed by the trial court on cross-examination of Bowman's two stepsons as violative of the defendant's constitutional right to confront the witnesses against him. We agree that the restrictions on cross-examination of one of the youths infringed the defendant's right of confrontation. Therefore, we reverse each of his convictions and remand the case for a new trial.

This prosecution arose from a fire on February 18, 1979, at the Cottonwood Motel in Aurora in the apartment where Bowman lived with his wife, Evelyn, and his three stepsons, Kevin, Anthony and Vincent. Mrs. Bowman and 12-year-old Vincent died in the blaze. The evidence against the defendant included the testimony of his stepsons, Kevin and Anthony. The limitations imposed by the trial court on defense counsel's cross-examination of the youths provides the basis for Bowman's contention that his constitutional right of confrontation was denied. In order to evaluate that claim it is necessary to review the evidence in some detail.

I. The Evidence

The prosecution presented the following evidence. At approximately 7:00 p.m. on February 18, 1979, Debra and Thomas Perry, who lived in the unit adjoining that of the Bowmans, heard an explosion from the Bowmans' apartment. The Perrys went to their window seconds later and observed the defendant leaving the apartment parking lot in his car. Both of these witnesses accurately described the defendant's car and identified Bowman in the courtroom.

The manager of the motel, Jack Kennedy, testified that, upon being advised of the fire by Bowman's stepson Anthony, Kennedy opened the door of the apartment, found the unit to be full of smoke, and called the fire department. While awaiting the arrival of the firefighters, Kennedy again opened the apartment door and observed flames in the corner away from the door on a bed and nearby chair. Kennedy stated that, just before the firemen arrived, the defendant drove up to the motel parking lot and told Kennedy that he had tried to enter the apartment earlier but the door was hot. Kennedy noticed that Bowman's pant legs were burned. Kennedy also noticed another motel resident, John Hanlon, talking with the defendant in the parking lot. Hanlon later testified that he spoke with a middle-aged black man, ⁶ whom he could not identify positively, outside of the apartment during the fire. Hanlon stated that the man told him that no one was inside the burning apartment.

Fireman William Jones testified that he spoke with Bowman outside of the apartment after the fire was extinguished. During this conversation, Jones noticed that the defendant's pant legs were burned in front. Bowman indicated that he wanted to enter the apartment because he was cold. Jones denied permission, but obtained a blanket for the defendant, who wrapped it around himself. Lieutenant Fix later obtained the burned pants from the defendant, as explained in part III.A. of this opinion.

Firemen found the two victims fully clothed in the bathtub of the apartment with the shower running. Paramedics administered aid on the scene and then transported the victims to the hospital where they were pronounced dead. Several firemen, policemen, paramedics and doctors noticed the smell of gasoline on the victims' clothing. A coroner testified that each victim died of cardio-respiratory arrest from smoke and fire inhalation, and exhibited carbon monoxide toxicity.

Fire investigators testified that they gathered several samples of materials from the apartment to determine the cause of the fire. Pieces of carpeting and material from the furniture and from the victims' clothing were tested for, and found to contain, a volatile hydrocarbon with the chemical properties of gasoline. Expert testimony established that gasoline had been poured on the furniture and the floor, and that someone was sitting in the chair near the bed when the fire started. One expert expressed the opinion that the flammable fumes were ignited by the pilot light of a space heater that was only a few feet away from where the gas was poured. This expert opined that ignition occurred within the range of two seconds to two minutes after the gasoline was spread.

The defendant's burned pants were also analyzed. An expert testified that the singed areas on the pants were consistent with their presence in the apartment at the moment of ignition because the pants displayed "flash marks" characteristically made only at the point of ignition of a volatile hydrocarbon. The fire would have ignited low to the floor, and the positioning of the singe marks on the lower part of the pant legs was an important basis for this expert's conclusion.

Other evidence recovered from the scene of the crime included a plastic antifreeze container cut into two pieces and smelling like gasoline, and two paper matches burned at the tips. The bottom half of the container was found near the front door of the apartment and the matches were near it. The top half of the container was found outside under a mattress that had been removed from the apartment by the firefighters.

Police found a paring knife from the apartment kitchen in the defendant's coat pocket. The knife had white specks on it, analyzed by experts as having the chemical properties of plastic. Traces of blood, too small for analysis, were present on the antifreeze container. Band-Aid wrappers, a box of Band-Aids and a receipt from Safeway for ninety-six cents plus tax, dated the day of the fire, were found in the defendant's car. A doctor testified that he treated the defendant for a cut finger, requiring stitches, at the hospital after the fire was over.

The foregoing evidence was supplemented by the testimony of Bowman's stepsons. Kevin Toliver, who was eighteen years old at the time of trial, testified that the family had moved to Denver from Chicago a few months before the fire because his mother wanted a "change of life." He stated that on the afternoon of the incident he picked up his little brother Vincent in his car, and the two boys then met their mother at a restaurant-lounge. They purchased four fish dinners to go, and returned to the apartment, where they found the defendant. The defendant was angry that they had purchased only four dinners, and he began to argue with Kevin. Mrs. Bowman then asked Kevin to leave, and he drove to a friend's apartment. Kevin returned home later that evening to find that the firemen and police officers were present. Kevin also testified that he had seen a white plastic antifreeze container in the trunk of Bowman's car on the day before the fire.

On cross-examination, defense counsel attempted to establish that Kevin had lied about seeing the antifreeze container the day before the fire and also had lied about the reasons for the family's move to Denver. When defense counsel inquired: "To your knowledge, was anyone else in the family having problems in Chicago?" the trial court sustained the district attorney's objection. Out of the hearing of the jury, defense counsel made an offer of proof that Kevin's younger brother Anthony was in "some trouble" in Chicago, and argued that Kevin properly could be cross-examined about it to impeach his account of the reasons for the family's move. Defense counsel also argued that evidence about Anthony's trouble in Chicago would be relevant to his "possible motives." The court held that this was an inappropriate attempt to impeach Kevin on collateral issues and disallowed the line of questioning.

Anthony Toliver, fourteen years old at the time of trial, testified that on the afternoon of February 18, 1979, he was shooting pool with a friend, who drove him back to the Cottonwood Motel at about 7:00 p.m. When he arrived, he saw the defendant in his car driving slowly, first in one direction and then the other, on Colfax Avenue in front of the motel. Anthony saw that the apartment was on fire, and he notified the manager, who called the fire department. Anthony then stopped his stepfather and told him that the apartment was on fire. The defendant replied that he knew and that he had attempted to enter the apartment but the fire burned his pant legs. Anthony also related that the defendant had told him that he had gone to the store to get some beer before the fire started. The day before the fire, Anthony had cleaned Bowman's car. During the course of the project he had seen a Safeway plastic antifreeze container in the trunk of the vehicle, but no Band-Aids or Band-Aid containers were present in the car at that time.

On cross-examination, defense counsel established that the police had taken swabs of Anthony's hands for evidence while he was at the hospital after the fire. Defense counsel asked Anthony if he had given a statement to the police and if he was on probation when he gave the statement. The district attorney's objection to the latter...