People v. Drake
| Citation | 748 P.2d 1237 |
| Decision Date | 11 January 1988 |
| Docket Number | No. 84SA34,84SA34 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard Owen DRAKE, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Robert M. Petrusak, and Clement P. Engle, Asst. Attys. Gen., Denver, for plaintiff-appellee.
Harmon & Griff, Maurice J. Harmon, Grand Junction, for defendant-appellant.
Massaro & Nugent, Nicholas R. Massaro, Grand Junction, and Haddon, Morgan & Foreman, P.C., Norman R. Mueller, Denver, for amici curiae American Civil Liberties Union and Colorado Criminal Defense Bar.
Richard Owen Drake, the defendant, was found guilty by a jury of murder in the first degree, in violation of section 18-3-102, 8B C.R.S. (1986), in connection with the death of his wife, Regina Drake. After further proceedings, the trial court imposed a sentence of death pursuant to section
16-11-103, 8A C.R.S. (1978 & 1983 Supp.). The defendant has appealed his conviction pursuant to section 16-11-103(7)(a) and C.A.R. 4(e), asserting that numerous errors were committed by the trial court in both the guilt-innocence phase and the sentencing phase of the trial. Although we agree that errors were committed in both phases of the trial, we nevertheless affirm the jury's guilty verdict. However, in view of the nature and extent of the errors affecting the sentencing phase of the trial proceeding, we reverse the sentence imposed by the trial court and order the imposition of the alternative sentence of life imprisonment.
The following summary of main events puts into an overall perspective the numerous legal issues presented by this appeal. Other pertinent facts will be discussed in the course of addressing those issues.
The defendant and his wife, Regina Drake, had four children during their marriage. The youngest child, a girl, was named Jennifer.
In July of 1982, the defendant purchased a life insurance policy in the face amount of $5,000. Regina was the named insured. The insurer advertised that it would pay all life insurance claims within twenty-four hours. On November 18, 1982, the defendant cancelled a $5,000 life insurance policy that he owned on his life and increased the coverage of the policy covering Regina to $10,000.
During the fall of 1982 the defendant proposed marriage to a co-worker at the bakery where he was employed. He indicated that he would divorce Regina if his proposal were accepted.
On November 24, 1982, Jennifer Drake suddenly died. Both the defendant and Regina experienced great difficulty adjusting to the loss of their daughter. The defendant at times also professed to be upset at what he characterized as Regina's inability to accept Jennifer's death.
In mid-December of 1982, the defendant telephoned his brother James, a resident of Shreveport, Louisiana, asked James to come to Colorado, and mailed him funds to purchase an airline ticket for the trip. James arrived in Grand Junction on December 14, 1982, and met with the defendant that evening. The defendant asked James to kill Regina in return for the anticipated $10,000 proceeds from the life insurance policy on her life. The defendant offered to provide James with a knife and keys to the apartment occupied by the defendant and his family. James agreed.
On December 16, 1982, the defendant left his apartment at about 3:45 a.m. and was driven to his job at the bakery by a friend. At 5:20 a.m., a Grand Junction Police Department operator received a telephone call, later established by police investigation to have been placed by James Drake, indicating that a woman had been stabbed at the defendant's residence. The call was tape recorded and traced to a public telephone located near a local department store. Police officers responding to the call discovered Regina's body, with numerous stab wounds, in the Drake apartment.
At about 6:00 a.m., police officers went to the bakery where the defendant was employed and informed him that Regina had been murdered. During the trial, Sergeant James Hall testified that the defendant immediately threw his helmet to the floor, put his face in his hands and uttered sobbing sounds when advised of his wife's death, but shed no tears. The defendant agreed to accompany the officers to the police station, where he was questioned.
Later that morning James Drake telephoned the defendant's apartment twice, asking to speak to the defendant. At approximately 2:00 that afternoon James Drake phoned the police station, identified himself, said he was calling long distance, and asked to speak to the defendant. The officer answering the call recognized the voice as that of the person who earlier had reported Regina's murder and suspected that the call originated locally. The defendant The officers went to the motel, found James and, with his consent, searched his room. That search and later investigation of the area near the motel resulted in the discovery of a ski mask, gloves, sales tags from the department store near the telephone booth from which the earlier morning call had been placed, airline boarding passes, a Schrade brand knife with blood stains on it and a matching sheath. James Drake was taken to the police station and was searched. During this search blood stains were found on his shirt, pants and belt and on the ski mask and gloves taken from his motel room.
initially denied that James was in Grand Junction, but subsequently informed the officers that James was staying at a local motel.
The defendant was arrested later that day. On December 17, 1982, he was formally charged with murder in the first degree and a defense attorney was appointed to represent him. On February 8, 1983, the defendant tendered a plea of not guilty to the charge. The trial court declined to accept the plea, and no formal plea of not guilty was entered in the case.
On March 28, 1983, the defendant requested a meeting with the Mesa County District Attorney. Investigators Jack Rentfrow and G. Stone of the district attorney's office met briefly with the defendant, but refused to discuss the case unless the defendant waived his attorney's presence. On March 29, at the defendant's request, a second meeting was held with Rentfrow and Stone. The defendant was advised of his rights and signed a form waiving his attorney's presence. An audio tape was made of almost all of that interview, and the defendant signed a written statement that day.
In his March 29 statement the defendant said he arranged for his brother James to visit him in Grand Junction about the death of his daughter Jennifer; that at the meeting the defendant was informed that James had a "contract" to kill five people, including the defendant, Regina, or both, before the end of the year; and that the defendant was told he should either go into business with James or suffer the consequences. The defendant said he told James to go ahead and kill Regina because, in view of her instability over the loss of their daughter, she would not be able to handle his death and he could better care for the remaining children. He stated that he agreed to leave the keys to his apartment in the mailbox in front of his home when he left for work on December 16 and that he gave James a knife. The defendant also stated that at 6:15 a.m. on December 16 he telephoned James and asked that he be killed instead of Regina, but that James said it was too late.
On April 1, the defendant requested another interview with Rentfrow and Stone. After he was given proper advisements, a reduction in the amount of defendant's bond was discussed, but the officials made no promises concerning that matter. The defendant said that he wanted to make another statement and tell the truth. He agreed that this statement could be recorded.
In his April 1 statement, the defendant stated that he called James and said he "needed someone out of the way," paid the cost of James' flight, and met with James on December 14 in Grand Junction. He told James the victim was to be Regina and agreed to pay James $10,000 from life insurance policy proceeds if James would kill Regina. The defendant said he made this arrangement because Regina could not handle Jennifer's death and because he wanted freedom. The defendant stated that on December 15 he and James finalized the plan; that he gave James a knife and left keys to the apartment in the mailbox; and that he did not ask James to abandon the plan.
At trial, which commenced December 5, 1983, the defendant objected to the participation of several prospective jurors on grounds of bias and prejudice. Many of the objections were denied. During the defense portion of the case, the defendant After discussions between the defendant's attorney and the trial court, the defendant was advised in the presence of the jury of his right not to testify. He and his attorney indicated that he would nevertheless testify. The defendant told the jury that the April 1 statement was untrue and had been given in the hope of achieving his release from jail. He also testified that he did not participate in any way in Regina's murder.
called a clinical psychologist as an expert witness to establish that neither of the two statements made to the investigators was truthful. During the defendant's direct examination of the witness the trial court sustained an objection by the prosecutor to a question seeking to establish the basis of the expert's opinion by reference to discussions between the expert and the defendant. The trial court commented that the expert witness seemed "weird," and interrupted the direct testimony of the witness with comments critical of the defense attorney's performance. The trial court also denied the defendant's request to present testimony from another expert purportedly to the effect that a voice analysis indicated that the defendant's April 1...
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