People v. Braxton, 88CA1765

• Decision Date: 08 November 1990
• Docket Number: No. 88CA1765,88CA1765
• Citation: 807 P.2d 1214
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James Allen BRAXTON, Defendant-Appellant. . A
• Court: Colorado Court of Appeals

Page 1214

807 P.2d 1214

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James Allen BRAXTON, Defendant-Appellant.

No. 88CA1765.

Colorado Court of Appeals,

Div. A.

Nov. 8, 1990.

As Modified on Denial of Rehearing Dec. 6, 1990. ^*

Certiorari Denied April 8, 1991.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Robin Desmond, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Chief Judge STERNBERG.

The defendant, James Allen Braxton, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree murder, first degree felony-murder, aggravated robbery, and determining he was subject to mandatory sentence for violent crime. We affirm.

I.

The principal issue on appeal concerns defendant's assertion that the trial court erred in denying his motion for nontestimonial identification pursuant to Crim.P. 41.1(g). We find no error.

The defendant sought an order for nontestimonial identification procedures to be conducted on a third party whom he advanced as an alternate suspect to the charges against him. His motion was supported by an affidavit which asserted that the third party had had recent altercations with the victim, had given inconsistent stories when questioned, and had been in the company of the victim on the day of the murder. The defendant also asserted that a pair of men's shoes, which were not the victim's, were recovered from the victim's home, and that they were considerably smaller than the size worn by the defendant. Finally, defendant pointed to evidence of a hair found under the victim's fingernails which could be that of the third party.

During a hearing on the motion, the prosecutor stated that the third party had been investigated to some extent with regard to the crime. He then conceded that the third party had a possible motive and an opportunity to commit the crime. However, he took no position on whether the motion should be granted.

Believing that it did not have the authority to grant the motion, the trial court denied it. In doing so, the trial court ruled that Crim.P. 41.1(g) applies only to obtaining nontestimonial identification from the defendant himself. We agree.

Crim.P. 41.1(g) provides:

"A person arrested for or charged with an offense may request a judge to order a nontestimonial identification procedure. If it appears that the results of specific nontestimonial identification procedures will be of material aid in determining whether the defendant committed the offense, the judge shall order the state to conduct such identification procedure involving the defendant under such terms and conditions as the judge shall prescribe." (emphasis added)

There is a dearth of authority on this question. The issue has been ruled on in State v. Messier, 146 Vt. 145, 499 A.2d 32 (1985), in which the Vermont Supreme Court interpreted a similar rule containing the phrase "involving the defendant" in its nontestimonial identification rule. There, as here, the defendant sought a nontestimonial identification order for procedures to be conducted on a third party. In approving the denial of the motion by the trial court, the Vermont Supreme Court held that:

"by its language [the rule] applies only to procedures involving a defendant himself, not to non-party witnesses. The purpose of this rule is to allow the suspect an opportunity to initiate the procedures on his own, should it be in his best interests and the State has failed to do so, or if he desires some tests in addition to those provided by the State."

We agree with this interpretation. The phrase "involving the defendant" is clear and unambiguous. By its own terms it limits the scope of Crim.P. 41.1(g) to nontestimonial identification procedures on the defendant himself. We decline to adopt a strained interpretation to make it applicable to nontestimonial identification procedures on a third party.

The defendant argues that, even if Crim.P. 41.1(g) is limited to tests "on" a defendant, the denial of the motion, nevertheless, impinged upon his constitutional rights. This contention finds some support in dictum in State v. Messier, supra, in which, after holding the rule to be limited to tests on the defendant, the court stated:

"That is not to say that there could never be any compelling circumstances under which the granting of such a request might be constitutionally required. We simply hold that no such circumstances were present here." (emphasis added)

While it is true that the constitutional rights of the defendant must be considered, in our view, Crim.P. 41.1(g) is not the means by which to protect those rights. Rather, it is the constitution itself which affords the defendant such protection. More specifically, it is the due process clause which provides the type of protection contemplated here. "The very idea of due process of law includes a meaningful opportunity for a criminally accused to challenge assertedly unconstitutional evidence before it may be used against him to prove guilt or enhance punishment in a pending prosecution." People v. Germany, 674 P.2d 345 (Colo.1983).

However, absent a showing of official actions in bad faith, defendant has no constitutional right to require the state to investigate or gather potentially exculpatory evidence on his behalf. People v. Roark, 643 P.2d 756 (Colo.1982). " 'The State may not suppress evidence, but it need not gather evidence for the accused.' " People v. Culp, 189 Colo. 76, 537 P.2d 746 (1975). See also People v. Moore, 701 P.2d 1249 (Colo.App.1985).

Here, the defendant has not shown that the police acted in bad faith. Nor has he shown prejudice as a result of any alleged deficiencies in the investigation.

Therefore, we hold that the defendant's due process rights were not violated by the trial court's denial of his motion for nontestimonial identification.

II.

Defendant asserts that there exists insufficient evidence to support his conviction for first degree felony murder and that, therefore, his motion for judgment of acquittal should have been granted. We disagree.

Under § 18-3-102(1)(b), C.R.S. (1986 Repl.Vol. 8B), felony murder occurs if:

"Acting either alone or with one or more persons, he commits ... robbery ... 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."

The defendant was charged with, and the jury found, that he had committed aggravated robbery. Evidence was presented that items from the victim's home were found in pillowcases on the floor near the body.

The defendant argues on appeal that this shows "[a]t the least, an attempted robbery occurred," but that "the record is barren of any evidence showing any connection whatsoever" between the death and the robbery. He further asserts that such evidence equally supports a theory that the robbery was staged by the assailant after he had committed the homicide, and that this would not support a felony murder conviction.

The felony murder statute does not require a finding that the defendant was committing the predicate felony at the time he caused a death. See People v. Kittrell, 786 P.2d 467 (Colo.App.1989) (felony murder conviction upheld where defendant stabbed victim and then stole victim's wallet and car). Therefore, we hold, as a matter of law, that the sequence of events is irrelevant as long as sufficient evidence is produced to show that a...