People v. Dunlap, No. 96SA245

Docket NºNo. 96SA245
Citation975 P.2d 723
Case DateMarch 08, 1999
CourtSupreme Court of Colorado

Page 723

975 P.2d 723
1999 CJ C.A.R. 1199
The PEOPLE of the State of Colorado, Plaintiff-Appellee and
Cross-Appellant,
v.
Nathan Jerard DUNLAP, Defendant-Appellant and Cross-Appellee.
No. 96SA245.
Supreme Court of Colorado,
En Banc.
March 8, 1999.
Rehearing Denied April 12, 1999. *

Page 732

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, John Daniel Dailey, Deputy Attorney General, Paul R. Wolff, Assistant Attorney General, Paul Koehler, Assistant Attorney General, Criminal Enforcement Section, Capital Crimes Unit, Denver, Colorado, Jim Peters, Arapahoe County District Attorney, Littleton, Colorado, Attorneys for Plaintiff-Appellee and Cross-Appellant.

Barbara S. Blackman, Indianapolis, Indiana, Roman, Benezra & Culver, LLC, Seth J. Benezra, Lakewood, Colorado, Attorneys for Defendant-Appellant and Cross-Appellee.

JUSTICE KOURLIS delivered the Opinion of the Court.
                 Table of Contents *
                 I. Factual Background ................................................. 733
                 II. The Constitutional and Statutory Sentencing Requirements ........... 735
                 III. The Standard of Review ............................................. 736
                 IV. Prosecution Evidence Introduced to Rebut Mitigating Factors ........ 737
                 A. Background ................................................... 737
                 B. Constitutional Law ........................................... 739
                 C. Admissibility of Aggravating Evidence in Tenneson Step Four .. 740
                 D. Admissibility of Relevant Evidence ........................... 741
                 E. Error Analysis ............................................... 742
                 V. Inflammatory Evidence .............................................. 743
                 A. Tattoo Evidence .............................................. 743
                 B. Victim Impact Evidence ....................................... 744
                 C. Photographic Evidence ........................................ 746
                 VI. Statutory Aggravators .............................................. 747
                 A. Doubling of Aggravators ...................................... 747
                 B. Alleged Vagueness of Aggravators ............................. 749
                 1. Grave Risk of Death ....................................... 749
                 2. Lying in Wait ............................................. 751
                 C. Insufficient Evidence that Dunlap Killed to Prevent Arrest ... 752
                 D. Conviction for Burger King Robbery as Basis for Aggravator ... 753
                 VII. Polygraph Evidence ................................................. 755
                 A. Factual Background ........................................... 755
                 B. Constitutionality of the Per Se Rule ......................... 755
                VIII. Prosecutorial Misconduct ........................................... 757
                 A. Guilt Phase .................................................. 757
                 B. Penalty Phase ................................................ 759
                 IX. Independent Review ................................................. 764
                

* This Table of Contents and the section headings throughout this opinion are

offered solely for the convenience of the reader and do not control or modify

the substance of each section.

Page 733

In May 1996, following four death verdicts from a unanimous jury, a trial court of this state sentenced Nathan Gerard Dunlap to death for his murder of three teenagers and a fifty-year-old woman at a restaurant in Aurora, Colorado. Dunlap now seeks review of his death sentence by direct appeal to this court, 1 arguing that errors in the penalty phase of his trial 2 require this court to set aside his death penalty and resentence him to life imprisonment. Dunlap does not challenge the validity of his convictions, so the only issue on appeal is whether errors in the guilt or penalty phase of Dunlap's trial warrant the reversal of his death sentence. We conclude that they do not, and we therefore affirm the sentence of death.

I. Factual Background

In May 1993, nineteen-year-old Nathan Dunlap began working as a cook at the Chuck E Cheese's restaurant in Aurora. In late July, Dunlap and his supervisor had a disagreement over whether Dunlap would work additional hours beyond his scheduled shift, and Dunlap's supervisor fired him.

The evidence at trial suggested that Dunlap was angry about being fired and felt that his supervisor had made a fool of him.

Later that summer, Dunlap told a former Chuck E Cheese's co-worker that he planned to "get even" for the incident. He talked with other friends about robbing Chuck E Cheese's and killing his former supervisor. Then, on December 14, 1993, while playing basketball with friends, Dunlap indicated that his mind was made up and that he was going to "go to Chuck E Cheese, kill them all, and take the money."

That night, shortly before 9:00 p.m., Dunlap went to the restaurant, carrying a concealed small caliber handgun. He ordered a sandwich, and sat alone at a table near the front of the restaurant. Later, he played a video game, talked to a Chuck E Cheese's employee who had just finished a shift, and called his girlfriend. He learned that his former supervisor was not working that night. Then, at some point after about 9:50 p.m., he went into the men's bathroom and waited until the restaurant closed at 10:00 p.m.

Page 734

While Dunlap was in the bathroom, the last customers left, and five Chuck E Cheese's employees began to close for the night. Nineteen-year-old Sylvia Crowell began disassembling a salad bar close to the bathroom where Dunlap hid. Seventeen-year-old Ben Grant ran a vacuum cleaner near Crowell, and seventeen-year-old Colleen O'Connor performed closing duties further back in the dining area. Bobby Stephens, who was nineteen years old, was cleaning the kitchen, and Marge Kohlberg, the restaurant's assistant manager, totaled the day's receipts in a back office.

At some point shortly after 10:05 p.m., Dunlap emerged from the bathroom, walked up behind Sylvia Crowell and shot her from close range behind the right ear. Next, Dunlap approached Ben Grant, and shot him in the face near his left eye.

Dunlap then turned to Colleen O'Connor, who knelt before him, begging for her life and promising not to tell anyone what she had seen. Dunlap shot her through the top of her head. A witness later testified that Dunlap said that "she went out like a soldier."

Then Dunlap burst into the kitchen and shot Stephens in the face. The bullet knocked Stephens to the floor, but did not kill him.

Dunlap left the kitchen, and entered the office where Marge Kohlberg was working. He commanded her to open the restaurant's safe, which she did, and then he shot her through an ear. Kohlberg fell to the floor. Believing Kohlberg was still alive, Dunlap shot her through the other ear, killing her instantly. He took Kolhberg's purse and emptied it over her body. He then loaded the purse with approximately $1500 from the safe, Chuck E Cheese's key chains, and arcade game tokens, and left.

Meanwhile, Bobby Stephens recovered from his initial shock, and left the restaurant through an emergency door, setting off an alarm. He ran to a nearby condominium complex for assistance. Shortly thereafter, paramedics arrived at the restaurant, but within a few hours every victim but Stephens had died.

Upon leaving Chuck E Cheese's, Dunlap went to the nearby apartment of two of his friends, arriving shortly after 10:00 p.m. He described his crimes to his friend Carl Wilson, with whom he counted the stolen money, and asked Wilson to give him an alibi. According to Wilson, Dunlap said, "I did it. Chuck E Cheese."

Dunlap then went to the home of his girlfriend, Tracie Lechman, where he had a telephone conversation with his mother, Carol Dunlap. His mother told him that she was with police officers, who were already looking for him, and he agreed to meet with the officers. Later, Lechman overheard Dunlap asking someone over the telephone if peroxide would remove gunshot residue. Following this conversation, Dunlap washed his hands with peroxide and took a shower.

Dunlap subsequently met with the police and asserted that he had left Chuck E Cheese's between 9:00 p.m. and 9:20 p.m. The following morning, the police arrested Dunlap. On December 23, 1993, the People charged Dunlap with four counts of deliberative murder in violation of section 18-3-102(1)(a), 6 C.R.S. (1998), four counts of felony murder in violation of section 18-3-102(1)(b), 6 C.R.S. (1998), attempted first degree murder after deliberation in violation of sections 18-2-101, 8B C.R.S. (1993 Supp.), and 18-3-102(1)(a), 6 C.R.S. (1998), attempted first degree felony murder in violation of sections 18-2-101 and 18-3-102(1)(b), 6 C.R.S. (1998), first degree burglary in violation of section 18-4-202, 6 C.R.S. (1998), first degree assault in violation of section 18-3-202(1)(a), 6 C.R.S. (1998), aggravated robbery in violation of section 18-4-302(1)(a)(b), 8B C.R.S. (1986), theft in violation of section 18-4-401, 8B C.R.S. (1993 Supp.), and three violent crime sentencing counts pursuant to section 16-11-309, 8A C.R.S. (1993 Supp.). On January 20, 1995, the People announced that they would seek the death penalty.

Following extensive pre-trial motion hearings throughout most of 1995, Dunlap's capital murder jury trial began on January 12, 1996. The trial concluded six weeks later, on February 26, 1996, when the jury found Dunlap guilty of all charges filed. The trial proceeded into the penalty phase on February

Page 735

28, 1996. On March 7, 1996, the jury returned four verdicts of death. On May 17, 1996, the trial court sentenced Dunlap to death on the four murder counts, and to the Department of Corrections for consecutive terms totaling 113 years for the other counts. Dunlap appealed to this court, alleging various errors in the sentencing phase of the trial.

II. The Constitutional and Statutory Sentencing Requirements

This court has previously upheld the constitutionality of the death penalty in Colorado under a prior version of the...

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150 practice notes
  • People v. Casares, No. S025748.
    • United States
    • United States State Supreme Court (California)
    • February 4, 2016
    ...and in Colorado lying in wait is understood to include the killer's concealment of his presence (see, e.g., People v. Dunlap (Colo.1999) 975 P.2d 723, 751 ). The United States Supreme Court has found that no national consensus exists where only a handful of states retain a particular capita......
  • People v. Casares, No. S025748.
    • United States
    • United States State Supreme Court (California)
    • February 4, 2016
    ...and in Colorado lying in wait is understood to include the killer's concealment of his presence (see, e.g., People v. Dunlap (Colo.1999) 975 P.2d 723, 751 ). The United States Supreme Court has found that no national consensus exists where only a handful of states retain a particular capita......
  • St. Clair v. Commonwealth, 2011-SC-000774-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • August 21, 2014
    ...and tried, ... Payne does not contemplate admission of such evidence as permissible under the Eighth Amendment"); People v. Dunlap, 975 P.2d 723, 745 (Colo. 1999) ("Evidence regarding the impact of a capital defendant's prior crimes on the victims of those crimes ... is not admissible becau......
  • St. Clair v. Commonwealth, No. 2011–SC–000774–MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 21, 2014
    ...and tried, ... Payne does not contemplate admission of such evidence as permissible under the Eighth Amendment”); People v. Dunlap, 975 P.2d 723, 745 (Colo.1999) ( “Evidence regarding the impact of a capital defendant's prior crimes on the victims of those crimes ... is not admissible becau......
  • Request a trial to view additional results
150 cases
  • People v. Casares, No. S025748.
    • United States
    • United States State Supreme Court (California)
    • February 4, 2016
    ...and in Colorado lying in wait is understood to include the killer's concealment of his presence (see, e.g., People v. Dunlap (Colo.1999) 975 P.2d 723, 751 ). The United States Supreme Court has found that no national consensus exists where only a handful of states retain a particular capita......
  • People v. Casares, No. S025748.
    • United States
    • United States State Supreme Court (California)
    • February 4, 2016
    ...and in Colorado lying in wait is understood to include the killer's concealment of his presence (see, e.g., People v. Dunlap (Colo.1999) 975 P.2d 723, 751 ). The United States Supreme Court has found that no national consensus exists where only a handful of states retain a particular capita......
  • St. Clair v. Commonwealth, 2011-SC-000774-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • August 21, 2014
    ...and tried, ... Payne does not contemplate admission of such evidence as permissible under the Eighth Amendment"); People v. Dunlap, 975 P.2d 723, 745 (Colo. 1999) ("Evidence regarding the impact of a capital defendant's prior crimes on the victims of those crimes ... is not admiss......
  • St. Clair v. Commonwealth, No. 2011–SC–000774–MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 21, 2014
    ...and tried, ... Payne does not contemplate admission of such evidence as permissible under the Eighth Amendment”); People v. Dunlap, 975 P.2d 723, 745 (Colo.1999) ( “Evidence regarding the impact of a capital defendant's prior crimes on the victims of those crimes ... is not admissible becau......
  • Request a trial to view additional results

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