People v. Doubleday, 08CA2433.

• Citation: 369 P.3d 595
• Decision Date: 30 August 2012
• Docket Number: No. 08CA2433.,08CA2433.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. John Andrew DOUBLEDAY, Defendant–Appellant.
• Court: Court of Appeals of Colorado

369 P.3d 595

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.John Andrew DOUBLEDAY, Defendant–Appellant.

No. 08CA2433.

Colorado Court of Appeals, Div. II.

Aug. 30, 2012.

As Modified on Denial of Rehearing Oct. 25, 2012.

John W. Suthers, Attorney General, John J. Fuerst, III, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Alan M. Kratz, Deputy Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Chief Judge DAVIDSON.

¶ 1 Defendant, John Andrew Doubleday, appeals from the judgment of conviction entered on jury verdicts finding him guilty of first degree felony murder and second degree murder. We affirm and remand.

¶ 2 Among other issues, we consider the validity of a jury verdict finding a defendant guilty of felony murder but not guilty, based solely on a duress defense, of the predicate offense. As a matter of first impression, we hold that if the prosecution proves each element of the predicate offense beyond a reasonable doubt, the jury need not necessarily convict the defendant of the predicate offense to convict him of felony murder.

I. Background

¶ 3 The charges against defendant arose from a December 2006 shooting at a convenience store. The store's video surveillance camera recorded the incident. The video, which has no sound, showed that defendant entered the store and, apparently, asked the clerk for a pack of cigarettes. As the clerk handed defendant the cigarettes, defendant pulled out a shotgun and pointed it at the clerk. As the clerk turned and began walking away, defendant shot and killed her.

¶ 4 Defendant was subsequently arrested and charged with first degree murder after deliberation, first degree felony murder, attempted aggravated robbery, two counts of being an accessory to a crime, and two crime of violence counts.

¶ 5 At the trial, defendant testified that he had owed approximately $1,500 to a member of the Gallant Knights Insane (GKI) gang. Defendant said that two days before the convenience store incident, the gang member came to his apartment and ordered defendant to accompany him to another GKI member's house. Once there, the gang member confronted defendant about the debt and threatened to kill his family if it was not repaid. Several GKI members then assaulted defendant, knocking him unconscious.

¶ 6 The next day, the GKI members took defendant to his apartment, where they were joined by other friends and began drinking.

Defendant's family was also at the apartment. Later that night, the GKI member to whom defendant owed the money again confronted defendant about the debt. He told defendant to go "do a lick," which defendant understood as slang for committing a robbery. He then threatened to kill defendant and his family if defendant did not return with the money to pay his debt, gave defendant a shotgun, and had a friend drive defendant to the convenience store.

¶ 7 The court instructed the jury on first degree murder after deliberation and the lesser included offenses of second degree murder, reckless manslaughter, and criminally negligent homicide. The court also instructed the jury on attempted aggravated robbery, including the affirmative defense of duress and the special findings required for the two crime of violence counts. Finally, the court instructed the jury on felony murder, predicated on the attempted aggravated robbery charge. The jury was not asked to consider the accomplice charges.

¶ 8 After the jury told the bailiff that it had reached its verdicts, but before it announced its verdicts to the court, the prosecutor asked the court to give the jury a special interrogatory on the attempted aggravated robbery count. The court discussed the request with both parties and, over defendant's objection, gave the following special interrogatory:

If you find the defendant GUILTY of Count 3, Attempted Aggravated Robbery, disregard this instruction.

If you find the defendant NOT GUILTY of Count 3, Attempted Aggravated Robbery, your foreperson should check one of two lines below with an "X". Only one line should be checked, and this Interrogatory should be signed by the Foreperson. Your decision in this Interrogatory must be unanimous.

___ We the jury find the defendant ... NOT GUILTY of Attempted Aggravated Robbery because we do not believe the People proved, with the exception of the affirmative defense of duress, one or more of the elements of Attempted Aggravated Robbery beyond a reasonable doubt.

___ We the jury find the defendant ... NOT GUILTY of Attempted Aggravated Robbery because we do not believe the People disproved one or more of the elements of the affirmative defense of duress beyond a reasonable doubt.

¶ 9 The jury completed the special interrogatory and returned verdicts finding defendant not guilty of attempted aggravated robbery based on duress, guilty of second degree murder, and guilty of felony murder.

¶ 10 Defendant moved for a judgment of acquittal pursuant to Crim. P. 29(c) based, primarily, on the felony murder conviction. Following a hearing, the court denied defendant's motion. The court then merged defendant's two murder convictions, and sentenced him to a term of life imprisonment in the custody of the Department of Corrections.

II. Felony Murder Conviction

¶ 11 Defendant contends that we must vacate his felony murder conviction because the jury acquitted him of attempted aggravated robbery, the predicate offense for the felony murder charge. Under the particular circumstances presented here, we disagree. We also disagree with defendant that the trial court violated CRE 606(b) by giving the special interrogatory.

¶ 12 Defendant's contention raises a question of statutory interpretation, which we review de novo. People v. Rowe, 2012 COA 90, ¶ 10, 318 P.3d 57. When interpreting statutes, our primary goal is to ascertain and give effect to the legislature's intent. Id. To do so, we look first to the plain language of the statute, giving the words and phrases their plain and ordinary meanings. Id. Where the language is clear and unambiguous, we apply the statute as written. Id. However, if the language is susceptible of more than one meaning, we may consider other sources, such as legislative history, the underlying purpose of the statute, and the consequences of a given interpretation to determine the legislature's intent. People v. Turecek, 2012 COA 59, ¶ 11, 280 P.3d 73.

A. The Felony Murder Statute

¶ 13 "The felony murder doctrine is designed to heighten penalties where death results during inherently dangerous felonies." People v. Medina, 260 P.3d 42, 46 (Colo.App.2010) ; accord People v. Raymer, 662 P.2d 1066, 1069 (Colo.1983) ; see generally 40 Am. Jur.2d Homicide § 65 (2012) ("The purpose of the felony-murder rule is to deter dangerous conduct by punishing as a first degree murder a homicide resulting from dangerous conduct in the perpetration of a felony, even if the defendant did not intend to kill. The traditional purpose of the felony murder rule is to punish accidental, negligent, or reckless killings that occur in the course of a distinct felony." (footnote omitted)).

¶ 14 As relevant here, section 18–3–102(1)(b), C.R.S.2011, provides:

A person commits the crime of murder in the first degree if ... he or she commits or attempts to commit [certain enumerated offenses, including robbery] and, in the course of or in furtherance of the crime that he or she 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.

One of the elements of felony murder, therefore, is the commission or attempted commission of one of the enumerated offenses. See People v. Fisher, 9 P.3d 1189, 1191 (Colo.App.2000) (felony murder "requires as one of its elements that the principal commit a predicate felony"); People v. Kittrell, 786 P.2d 467, 469 (Colo.App.1989) ("The prosecution ... has to prove the homicide and all elements of the underlying felony beyond a reasonable doubt.").

¶ 15 We assume the legislature purposefully chose the particular language used in this statute. See State v. Nieto, 993 P.2d 493, 500 (Colo.2000) ("[I]t is presumed that the General Assembly meant what it clearly said."); People v. Poage, 272 P.3d 1113, 1116 (Colo.App.2011) ("We may not adopt a construction that renders any word superfluous."). Thus, it is important that the legislature chose to premise felony murder on a death that occurs during the commission of a specific offense rather than during the commission of an offense for which the defendant is then convicted. See People v. Garcia, 33 Cal.App.4th 1119, 40 Cal.Rptr.2d 12, 17–18 (1995) (explaining that the plain meaning of "commit" is not "to be convicted of"); State v. Pixton, 2004 UT App 275, ¶ 9, 98 P.3d 433, 436 (similar); see also Auman v. People, 109 P.3d 647, 651 (Colo.2005) ("A conviction for the crime of felony murder requires that a death occur in the commission of a specifically enumerated felony.") (emphasis added); People v. Thompson, 328 Ill.App.3d 360, 262 Ill.Dec. 601, 765 N.E.2d 1209, 1212–13 (2002) (observing that a person can commit a crime without a formal judgment of conviction); cf. People v. Rester , 36 P.3d 98, 100 (Colo.App. 2001) (a person may be a victim of a crime even if the accused was not convicted of that crime).

¶ 16 Had the legislature intended to hold a defendant liable for first degree murder under a felony murder theory only if the defendant was convicted of the predicate offense, it could have written the statute accordingly. See People v. Sheehan, 168 Ill.2d 298, 213 Ill.Dec. 692, 659 N.E.2d 1339, 1342–43 (1995) ("Had the legislature meant for predicate offenses to include only DUI offenses resulting in convictions under the felony DUI statute ... we believe that it would have used the term ‘convicted’ rather than ‘committed.’ ").

¶ 17 Thus, it could have used language, similar to that found in other statutes,...