People v. Ellis

• Decision Date: 15 February 2001
• Docket Number: No. 98CA2614.,98CA2614.
• Citation: 30 P.3d 774
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David ELLIS, a/k/a James Wesley, Defendant-Appellant.
• Court: Colorado Court of Appeals

30 P.3d 774

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David ELLIS, a/k/a James Wesley, Defendant-Appellant.

No. 98CA2614.

Colorado Court of Appeals, Div. IV.

February 15, 2001.

Certiorari Denied September 17, 2001.¹

Ken Salazar, Attorney General, John J. Fuerst III, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge MARQUEZ.

Defendant, David Ellis, a/k/a James Wesley, appeals the judgment of conviction entered upon jury verdicts finding him guilty of two counts of criminal attempt to commit first degree extreme indifference murder, one count of first degree extreme indifference assault, and one count of crime of violence. Defendant also appeals the imposition of consecutive sentences for the two counts of criminal attempt to commit first degree extreme indifference murder. We affirm.

After being asked to leave a Christmas party in 1997, defendant turned and fired three shots from a revolver into the front door of a house filled with approximately 35 people. The bullets went through a screen door and a wooden door and struck one of the two people standing behind the doors. One of the bullets fired by defendant ricocheted off the injured victim and went into the living room where people were gathered. Defendant admitted the act of firing his gun towards the door, but claimed it was in self-defense.

Following medical treatment, the victim who was struck recovered. This person was the victim in one of the attempted first degree extreme indifference murder counts and the victim in the first degree extreme indifference assault count. The other person standing behind the door was not struck. However, this uninjured person was considered a victim for purposes of criminal attempt to commit first degree extreme indifference murder.

I.

Defendant first contends that the trial court erred in refusing to declare a mistrial after one of the named victims testified that defendant had "shot a brother before." We are not persuaded.

During the direct examination by the prosecution, the uninjured victim stated that defendant "may have shot a brother before." Defense counsel promptly objected and asked that the testimony be stricken. The trial court agreed and also instructed the jury to disregard it. In camera, immediately thereafter, defense counsel moved for a mistrial, arguing that the order to disregard the statement would not cure the prejudice. The court denied the motion.

In so ruling, the court noted that the witness did not say defendant had, but only that he "may have" shot a brother. The court further found that the testimony surprised both the defense and the prosecution and that the curative instruction was an adequate remedy.

A mistrial is the most drastic of remedies. A trial court has broad discretion to grant or deny a mistrial, and its decision will not be disturbed on appeal absent a gross abuse of discretion and prejudice to the defendant. Furthermore, a mistrial is warranted only where the prejudice to the accused is too substantial to be remedied by other means. People v. Abbott, 690 P.2d 1263 (Colo.1984); see also People v. Dore, 997 P.2d 1214 (Colo.App.1999)

.

A trial court is in a better position than a reviewing court to evaluate any adverse effect that improper testimony might have upon a jury. People v. Price, 903 P.2d 1190 (Colo.App.1995).

Here, absent evidence to the contrary, we presume that the jury followed the curative instruction and that the instruction cured any prejudice to defendant. See People v. Lowe, 969 P.2d 746 (Colo.App.1998)

; People v. Baca, 852 P.2d 1302 (Colo.App. 1992). Such a conclusion is especially warranted in light of the overwhelming evidence of defendant's guilt.

Consequently, this case is unlike People v. Goldsberry, 181 Colo. 406, 509 P.2d 801 (1973), where the court held that the trial court's instruction to disregard prejudicial testimony was not sufficient to cure the prejudice. In Goldsberry, the evidence was not overwhelming, and proof of at least one of the essential elements of the crime charged was entirely circumstantial.

II.

Defendant next contends that the evidence was insufficient to sustain the two convictions for attempted extreme indifference murder. Specifically, he argues that either (1) the evidence failed to establish the "universal malice" necessary for attempted extreme indifference murder, or (2) the evidence failed to establish beyond a reasonable doubt that he was aware that his actions were practically certain to cause the death of either of two potential victims. We disagree.

A. "Universal Malice"

A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he or she engages in conduct constituting a substantial step toward the commission of the offense. Section 18-2-101(1), C.R.S.2000; People v. Harris, 892 P.2d 378 (Colo.App. 1994).

Here, the jury was instructed that a "substantial step" is "any conduct, whether act, omission or possession, which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense."

The crime of extreme indifference murder requires that: (1) under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally; (2) the defendant knowingly engages in conduct that creates a grave risk of death to a person, or persons, other than himself or herself; and (3) thereby causes the death of another. Section 18-3-102(1)(d), C.R.S.2000.

"Universal malice" is defined as "that depravity of the human heart, which determines to take life upon slight or insufficient provocation, without knowing or caring who may be the victim." People v. Jefferson, 748 P.2d 1223, 1228 (Colo.1988)

(emphasis added)(quoting Longinotti v. People, 46 Colo. 173, 181, 102 P. 165, 168 (1909)). It is evinced by acts that are calculated to put the lives of many persons in danger, without being aimed at anyone in particular. The killing conduct must be of a type that is not directed against a particular person. People v. Perez, 972 P.2d 1072 (Colo.App.1998).

Here, although defendant knew both the injured and uninjured victims were directly behind the doors, at the time the bullets were fired, the doors were closed. The act of shooting through the doors was directed towards the house, which he knew was full of adults and children.

In spite of the fact that defendant may have been angry with the two victims, his shots could have killed any person who happened to be behind the doors or in the general vicinity. See People v. Moore, 902 P.2d 366 (Colo.App.1994)

(although defendant's animus was first directed toward certain persons, defendant was properly convicted of extreme indifference murder when he attacked the next person to happen by); People v. Fernandez, 883 P.2d 491 (Colo.App.1994)(despite defendant's testimony that he just shot at a specific person, universal malice finding was sustainable where other evidence placed persons other than the victim in or near the doorway at which the defendant shot).

Significantly, when defendant's attorney asked him if he was "directing [his] fire at any particular individual," defendant replied, "No, I wasn't."

Accordingly, ample evidence existed to establish that the defendant displayed the requisite universal malice and that he knowingly engaged in conduct creating a grave risk of death to others.

B. Sufficiency of the Evidence

Defendant correctly points out that the culpable mental state described by the extreme indifference murder statute requires an awareness on the part of the offender that his actions were practically certain to cause the death of another. People v. Marcy, 628 P.2d 69 (Colo.1981). However, the evidence of defendant's purposeful firing of a revolver through the door of a house full of people is sufficient to support a conclusion that he knew his actions were practically certain to cause the death of some of the people inside.

Under that evidence, a reasonable jury could find that defendant's conduct constituted a knowing, substantial step towards the commission of the crime of extreme indifference murder, and thus, that evidence supports the two convictions.

III.

We are not persuaded by defendant's contention that the evidence was insufficient to sustain the conviction for first degree extreme indifference assault. Specifically, defendant contends that, for the same reasons he asserted above, the conviction here should be vacated as well.

A person commits first degree extreme indifference assault when, "[u]nder circumstances manifesting extreme indifference to the value of human life, he knowingly engages in conduct which creates a grave risk of death to another person, and thereby causes serious bodily injury to any person." Section 18-3-202(c), C.R.S.2000.

Based on our discussion in part II and the reasons stated therein, we conclude that the evidence was sufficient to support defendant's conviction for first degree extreme indifference assault.

IV.

Defendant next contends that the trial court erroneously instructed the jury on the limited applicability of self-defense. Defendant bases this contention on his own testimony that he was hit in the back of the head and heard a "bang" as he was pushed out the door. We are not persuaded.

The trial court gave the following self-defense instruction:

It is an affirmative defense to the crime of Attempted Second Degree Murder that the defendant used physical force upon another person

(1) in order to defend himself or a third person from what he reasonably believed to be the use or imminent use of unlawful physical force by the victim, and

(2) he used a degree of force which he reasonably believed to be necessary for the purpose.

It also gave the following instruction:

The

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