People v. Duran

• Decision Date: 21 July 2011
• Docket Number: No. 06CA1850.,06CA1850.
• Citation: 272 P.3d 1084
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Dominic Dale DURAN, Defendant–Appellant.
• Court: Colorado Court of Appeals

272 P.3d 1084

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

v.Dominic Dale DURAN, Defendant–Appellant.

No. 06CA1850.

Colorado Court of Appeals, Div. II.

April 28, 2011.Rehearing Denied July 21, 2011.

John W. Suthers, Attorney General, Jennifer A. Berman, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Samler & Whitson, P.C., Eric A. Samler, Hollis A. Whitson, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge CASEBOLT.

Defendant, Dominic Dale Duran, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempted first degree extreme indifference murder and reckless manslaughter. He does not appeal his conviction of being an accessory to a crime. We vacate the judgment of conviction for reckless manslaughter, reverse the judgment of conviction for attempted first degree extreme indifference murder, and remand for a new trial on the attempted murder charge.

I. Background

A teenager (host) held a large party at his house while his parents were out of town. Defendant's group, which included codefendant Angelo Montoya, Gilbert Salazar, and four others, attended the party. Defendant drove himself, Montoya, and two others to the party.

Following a confrontation at the party between Montoya and one of the host's friends, Montoya pulled a gun from his waistband and brandished it. The partygoers panicked and many of them, including Salazar and Montoya, ran outside.

At defendant's joint trial with Montoya, the prosecution presented evidence that Montoya's weapon held ten bullets, that Montoya shot five bullets at the house while running in the yard, and that either Montoya or defendant shot five bullets from Montoya's gun toward the house from defendant's car as they drove from the scene. Salazar pulled his gun and shot twice into the air while running in the yard in front of the house and five additional times into the air while in the street south of the house.

Testimony indicated that defendant was with the group at the party before the confrontation began and that he ran out of the house to his car after the confrontation, but the prosecution presented no other evidence of his actions from the commencement of the confrontation until he and Montoya reached his car. One witness testified that defendant was in the driver's seat of the car and told Montoya, “Let's go,” after Montoya fired the first group of gunshots. The witness testified that Montoya then got in the car and the witness saw someone shooting from the passenger side of the car. Salazar, however, testified that Montoya later told him that Montoya was driving the car, and that defendant later admitted that he had fired the second group of gunshots at the house.

The prosecution presented evidence that the victim was seated on a couch in a bedroom at the front of the house when the host came into the bedroom and told her and her friends that someone had pulled a gun. As the victim was getting up from the couch, the first shots rang out, the host said, “Get down,” and she and all the occupants of the bedroom went down on the floor. After the first group of shots was fired, the host got up and turned off the bedroom lights. The second group of gunshots ensued. The victim did not get up. She died from one gunshot to the head.

The prosecution's experts testified that the bullet wound was located fifty-five inches above the victim's heel and that a bullet hole in a window screen (the glass window was open at the time) in the bedroom was fifty-three inches from the floor of the house. All the testimony indicated that the victim was near the bedroom window during the shooting. Investigators testified at trial that they searched the bedroom and adjacent rooms in the home and found no other evidence, aside from the single hole in the window screen, of any bullet entering the bedroom or striking any surface inside the home.

Forensic evidence established that the bullet that killed the victim could not have come from Salazar's gun. The prosecution's experts testified that they could not determine the precise trajectory of the bullet that entered the bedroom through the window screen. No testimony, however, indicated that the bullet could have entered through the screen and hit the victim while she was down on the floor, nor was there any evidence from which that fact could reasonably be inferred.

The prosecution also presented evidence that after Montoya and Salazar pulled their guns and ran into the yard, one of the host's friends ran to his truck and pulled out a pellet gun that was similar in appearance to an assault rifle. By the time defendant and Montoya were in the car, the friend was holding the rifle, taking cover behind a tree in a position where he would have been visible to defendant and Montoya as they drove away from the house, and aiming the gun as if to shoot at defendant's car.

The grand jury had returned an indictment charging defendant and Montoya with first degree extreme indifference murder explicitly naming only the victim. After the prosecution's case-in-chief, defendant moved for judgment of acquittal, asserting that the prosecution had presented insufficient evidence to support a jury verdict finding him guilty of murdering the victim. The trial court denied the motion.

Following completion of the testimony, the trial court instructed the jury on first degree extreme indifference murder and, as a lesser included offense, attempted extreme indifference murder. It also instructed the jury on reckless manslaughter and attempted reckless manslaughter, but listed those as lesser nonincluded offenses, and the instructions required the jury to consider those charges in addition to the murder charges. Defendant did not object to these instructions. The trial court also gave a general complicity instruction to the jury, which applied to all the homicide charges.

In addition, the trial court instructed the jury on self-defense. The instruction contained a description of circumstances under which a person is justified in using physical force and deadly physical force, including sections on provocation and initial aggressor. Montoya raised specific objections to the provocation and initial aggressor sections of the instruction. At the end of lengthy argument regarding the self-defense instruction, defendant objected generally to “the language of the entire instruction.”

The jury returned guilty verdicts for attempted first degree murder, reckless manslaughter, and accessory to a crime. This appeal followed.

II. Sufficiency of the Evidence

Defendant contends that there was insufficient evidence to support the jury's verdict finding him guilty of reckless manslaughter and attempted first degree extreme indifference murder. We conclude that the evidence was insufficient to support the reckless manslaughter verdict, but was sufficient to support attempted first degree extreme indifference murder.

A. Standard of Review

We review de novo whether the evidence before the jury was sufficient to sustain defendant's conviction. Clark v. People, 232 P.3d 1287, 1291 (Colo.2010).

When reviewing a claim of insufficient evidence, we must determine “whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt.” Id. (quoting People v. Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)). In making this determination, we must give the prosecution the benefit of every reasonable inference arising from the evidence.

The determination of the credibility of witnesses is solely within the province of the jury. People v. Sprouse, 983 P.2d 771, 778 (Colo.1999). A verdict in a criminal case, however, may not be based on guessing, speculation, or conjecture. Id.

B. Law

A person commits first degree extreme indifference murder when, “[u]nder circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally,” the person knowingly engages in conduct that creates a grave risk of death to others and “thereby causes the death of another.” § 18–3–102(1)(d), C.R.S.2010.

A person commits reckless manslaughter when the person “recklessly causes the death of another person.” § 18–3–104(1)(a), C.R.S.2010.

A person commits criminal attempt when, “acting with the kind of culpability otherwise required for commission of an offense, [the person] engages in conduct constituting a substantial step toward the commission of the offense.” § 18–2–101(1), C.R.S.2010. A “substantial step” means any conduct that is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense. Id.; People v. Lehnert, 163 P.3d 1111, 1114 (Colo.2007) (“the ultimate inquiry under the statutory definition concerns the extent to which the actor's conduct is strongly corroborative of the firmness of his criminal purpose, rather than the proximity of his conduct to consummation of the crime”).

Under principles of complicity, a person is legally accountable for the actions of another if, “with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in ... committing the offense.” § 18–1–603, C.R.S.2010. To be a complicitor, the person must have knowledge that the principal intends to commit the crime, must intend to promote or facilitate the commission of the offense, and must aid, abet, advise, or encourage the principal in the commission or planning of the crime. Bogdanov v. People, 941 P.2d 247, 253–54 & n. 10 (Colo.), modified, 955 P.2d 997 (Colo.1997), disapproved of on other grounds by Griego v. People, 19 P.3d 1 (Colo.2001).

C. Reckless Manslaughter

Defendant contends that the evidence is insufficient to support a determination by the jury...