People v. Cornelison
| Decision Date | 15 May 1980 |
| Docket Number | No. 77-626,77-626 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roy O. CORNELISON, Defendant-Appellant. . III |
| Court | Colorado Court of Appeals |
Robert N. Miller, Dist. Atty., Elizabeth Strobel, Deputy Dist. Atty., Greeley, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Margaret L. O'Leary, Deputy State Public Defender, Denver, for defendant-appellant.
Defendant was charged with and convicted of second degree murder. He appeals and we affirm.
Testimony at trial disclosed that defendant was employed by his victim as a sheepherder and that defendant lived in a small trailer on land which had been rented as pasture land for the sheep. On the day of the killing, the victim was called by the owner of the land and was told that no one was tending the sheep. The victim and his wife then drove to the site to investigate.
The victim's wife testified that the victim went to defendant's trailer and when he returned he told her that defendant had been drinking and that he had fired him. According to the wife, she and the victim then rounded up the sheep and put them in a pen, a project which took between 15 to 20 minutes. As the victim was walking back to the car, his wife heard a sharp crack and saw the victim fall to the ground.
Defendant did not testify. However, several other witnesses testified as to what defendant had told them regarding the incident. According to these witnesses, defendant said that the victim had come to his trailer, had sworn at him, had said he was going to get defendant, and had started running for his car. Defendant reportedly said that he knew victim carried a gun in his truck and thought he might have one in his car, so defendant got his rifle from inside his trailer and shot victim as he was going back to his car.
Several witnesses testified that defendant had told them that the victim had become angry with defendant and had cursed him on other occasions prior to the killing and that defendant had developed a fear of the victim.
Defendant was convicted by a jury of second degree murder only and was sentenced to a term of not less than 20 and not more than 50 years.
Defendant first contends that the trial court erred in its instruction to the jury on manslaughter, as a lesser included offense, by stating that "(i)f between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the killing is murder." Citing English v. People, 178 Colo. 325, 497 P.2d 691 (1972), and Wickham v. People, 41 Colo. 345, 93 P. 478 (1907), defendant contends that the question of whether there was a sufficient "cooling off" period is an issue for the trial court and not for the jury.
Alternatively, defendant contends that if the manslaughter instruction did properly address the question of whether there was a "cooling off" period, the trial court erred by not submitting to the jury an instruction proposed by defendant which stated that "(t)he provocation or the injury inflicted on the Defendant by the alleged victim, whether real or threatened need not immediately precede the act."
It is true that the Supreme Court stated in both Wickham and English that the question of whether there has been a sufficient cooling off period is a question of law for the court. In both cases, however, it was clear that there was a sufficient interval between any provocation or threats by the victims and the killings for the voice of reason and humanity to be heard. As a result, in both cases the trial court was justified, as a matter of law, in not instructing the jury on the offense of manslaughter.
We read Wickham and English to stand for the proposition that where the evidence is undisputed that the interval between provocation and killing is relatively long and where the evidence is such that the minds of reasonable men could not differ, the trial court may hold, as a matter of law, that there was a sufficient cooling off period. See, McClung v. Commonwealth, 215 Va. 654, 212 S.E.2d 290 (1975); see also, State v. Robinson, 161 Ohio St. 213, 118 N.E.2d 517 (1954).
In the present case, the length of the interval between any provocation and the killing was a disputed factual issue, and, under defendant's version of the incident, might have been too short for there to have been a "cooling off." Therefore, the trial court properly instructed the jury that it might find the defendant guilty of the lesser offense of manslaughter. The question of the sufficiency of the interval was properly submitted to the jury for its determination along with the other factual issues.
Likewise, we find no error in the trial court's refusal to give defendant's supplemental instruction. We find that the instruction on manslaughter, which was given in the language of the statute, was sufficient to inform the jury of the law on this issue. People v. Crawford, 191 Colo. 504, 553 P.2d 827 (1976).
Defendant further contends that the trial court erred in denying his motion for mistrial based on prejudicial remarks made by the prosecutor during closing argument. He contends that the prosecutor (1) impermissibly drew attention to the fact that defendant did not testify; (2) expressed his personal opinion that the defendant's version of the incident was false; and (3) made comments which tended to appeal to the emotions of the jurors. We find no error.
Not every reference to the exercise of the right to remain silent is an error requiring reversal. The determining factors are (1) whether the defendant's silence was used by the prosecution as a means of creating an inference of guilt, or (2) whether the prosecution argued that defendant's silence constituted an implied admission of guilt. People v. Key, 185 Colo. 72, 522 P.2d 719 (1974); see also People v. Ortega, Colo., 597 P.2d 1034 (1979). Here, we find no such abuse by the prosecutor, whose comments were to the effect that defendant's story had been presented to the jury indirectly through the testimony of the defense witnesses. In the absence of an abuse of discretion, the trial court's rulings on mistrial motions will not be disturbed on review....
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...prosecution argued that the defendant's exercise of his constitutional right was an implied admission of guilt. People v. Cornelison, 44 Colo.App. 283, 616 P.2d 173 (1980). In the briefs filed before this court, the state asserts that the evidence presented against Rodgers was overwhelming.......
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