People v. Duran, 76-203
| Decision Date | 05 January 1978 |
| Docket Number | No. 76-203,76-203 |
| Citation | 40 Colo.App. 302,577 P.2d 307 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas DURAN, Defendant-Appellant. . III |
| Court | Colorado Court of Appeals |
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., David K. Rees, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Ilene P. Buchalter, Deputy State Public Defender, Denver, for defendant-appellant.
Thomas Duran was convicted by a jury of two counts of first-degree murder. The trial court reduced one of the convictions to second-degree murder because of an erroneous verdict form. Duran appeals, contending: (1) The jury was incorrectly instructed on self-defense; (2) the lesser offense of criminally negligent homicide should have been submitted to the jury; (3) there was insufficient evidence of premeditation to sustain the convictions for first-degree murder; and (4) it was plain error to omit second-degree murder from one of the verdict forms. We conclude that the first two allegations of error are meritorious and reverse.
The record reflects that after an evening of holiday celebration at a drinking and dancing establishment in Trinidad, Colorado, the two victims, Jack Tortorelli and Dale Van Matre, and their wives went to a restaurant for coffee. Duran and Mr. and Mrs. Edward Bonney were seated at a table in the restaurant when the Van Matres and Tortorellis arrived. After paying their bill, Duran and the Bonneys left the restaurant, but returned a short time later and approached the table where Van Matre and Tortorelli were seated.
Although it is unclear who initiated the fist fight which led to the deaths, it is undisputed that either Duran or Bonney asked Van Matre if he wanted to continue the fight which had erupted earlier at a nightclub. Although Van Matre declined, what can only be described as a brawl ensued. Duran produced a large hunting knife and was disarmed after having been wrestled to the floor where he had been kicked around the head and face by one of the patrons. Duran extricated himself from the fracas and was then chased from the restaurant by a group of customers. One of the patrons who had helped disarm him stated to Tortorelli, "He's had enough," or, "Let's go finish our coffee he doesn't want to fight or nothing." Tortorelli was heard to yell, "There he goes let's get him."
Duran was able to reach his car, which was parked nearby, and lock himself inside. One witness saw Tortorelli and another customer kicking at the windows of Duran's car. Although no witness observed the shooting of Tortorelli, there was testimony that shots were fired, and Tortorelli stumbled back into the restaurant and collapsed near the washroom.
Duran immediately re-entered the restaurant with a gun. Van Matre, who was on his knees beating Bonney, got up and turned toward Duran. As the two men approached each other, Bonney urged Duran to kill Van Matre. As the distance between the two men narrowed, Duran attempted to stop Van Matre's approach by placing his left hand on Van Matre's right shoulder. Notwithstanding, Van Matre continued his approach; whereupon Duran raised the gun and shot Van Matre.
Duran first contends the trial court erred in refusing his tendered instructions on his right to act on appearances in self-defense. As stated in Young v. People, 47 Colo. 352, 107 P. 274 (1910):
See People v. Tapia, 183 Colo. 141, 515 P.2d 453 (1973); People v. LaVoie, 155 Colo. 551, 395 P.2d 1001 (1964).
Where, as here, the evidence raises the question of self-defense, instructions on apparent necessity and acting on appearances as outlined in Young v. People and People v. Tapia, supra, should be given. The trial court's failure to do so after timely request by the defendant constitutes reversible error. Contrary to the People's contention, it was for the jury to determine whether Duran was justified in killing Van Matre and Tortorelli in defense of himself and another person, and whether Duran was the initial aggressor who did not communicate an intent to withdraw. People v. Thompson, 187 Colo. 252, 529 P.2d 1314 (1975); cf. People v. Salas, Colo., 538 P.2d 437 (1975).
We agree with Duran's contention that the trial court erred in refusing to instruct the jury on criminally negligent homicide. The statutory scheme in Colorado relating to homicide is unique. Section 18-3-105, C.R.S.1973, provides:
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