People v. Fears, 93CA0720

• Decision Date: 07 August 1997
• Docket Number: No. 93CA0720,93CA0720
• Citation: 962 P.2d 272
• Parties: 97 CJ C.A.R. 1470 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kevin FEARS, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 272

962 P.2d 272

97 CJ C.A.R. 1470

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kevin FEARS, Defendant-Appellant.

No. 93CA0720.

Colorado Court of Appeals,

Div. V.

Aug. 7, 1997.

Rehearing Denied Sept. 18, 1997.

Certiorari Denied Aug. 31, 1998.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Clemmie P. Engle, Senior Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Justice ERICKSON. ^*

Defendant, Kevin Fears, appeals the judgment of conviction entered upon jury verdicts finding him guilty of two counts of first degree murder, attempted first degree murder, conspiracy to commit first degree murder, intimidation of a witness, second degree assault, and first degree burglary. We affirm.

The June 1989 murders and attempted murder underlying the convictions in this case have their genesis in a September 1988 robbery at Denver's Parkside Cafe (for which defendant was not prosecuted). A robbery occurred when the assistant manager of the Parkside Cafe, Cheryl Kaai (Kaai), closed the restaurant and walked to her car with a waiter, Frank Magnuson (Magnuson). As the two approached the car, they were charged by four men. Two of the men grabbed Kaai, held her at gunpoint, and attempted to force her to open the restaurant. When Magnuson ran to seek help, the other two men briefly chased him before fleeing from the scene on foot. After witnesses near the Parkside Cafe intervened on Kaai's behalf, the remaining two robbers released her and fled. Shortly thereafter, Roger Young a/k/a Roy Young was arrested nearby with Kaai's necklace in his possession. The other robbers were not apprehended.

On the night before Roy Young's robbery and habitual criminal trial was scheduled to commence, Magnuson's roommate, Steven Curtis (Curtis) returned home accompanied by a friend, Dan Smith (Smith). Just after Curtis and Smith entered the house, two men ran upstairs from the basement. Evidence established that the shorter of the two men was the defendant, Kevin Fears, and that the other man was Joe Young, the younger brother of Roy Young.

Defendant pointed a gun at Curtis and pulled the trigger. The gun failed to fire. Defendant and Joe Young then directed Curtis and Smith to lie on the floor and repeatedly demanded to know which man was "Frank." When Curtis and Smith explained that "Frank" was not there, the two gunmen demanded to see identification. Defendant and Joe Young held Curtis and Smith captive while they waited for Frank Magnuson to return.

As Curtis and Smith lay on the floor, Curtis heard Joe Young speaking on the telephone. Curtis heard Young tell the person to whom he was speaking that they were going to have to "pop them." Shortly thereafter, defendant shot both Smith and Curtis. Though Curtis was shot in the head and the arm, he pretended to be dead and survived. Smith was shot twice in the head and died. As the gunmen were leaving, Curtis heard Frank Magnuson enter the house and then heard numerous gunshots. Curtis waited until the gunmen were gone, discovered that Smith and Magnuson were both dead, and called 911.

At trial, Roy Young's wife, Christa Schaeffer-Young (Schaeffer-Young), testified that defendant and Joe Young murdered Frank Magnuson so that he could not testify against Roy Young regarding the robbery at the Parkside Cafe. Schaeffer-Young testified that, some time before the murders, defendant told her that he would try to make the witnesses to that case "not testify."

Schaeffer-Young detailed how she obtained Magnuson's telephone number by reviewing discovery documents from Roy Young's case and, a few days before Young's trial, called Magnuson to ask him not to testify. When Magnuson told her he could identify Roy Young as one of the robbers and would testify at the trial, Schaeffer-Young passed the information on to Roy Young who was in custody awaiting trial.

Schaeffer-Young's testimony was that, two days before the murders, she participated in a four-way phone conversation with defendant and the Young brothers. She listened as Roy Young told the other two men to wear rubber gloves under their regular gloves "so the powder burns don't show up." Later that day, defendant called her and complained that Roy had waited so long that "it was going to be sloppy."

Schaeffer-Young testified that she received a phone call from Joe Young on the night of the murders. Young asked if she knew what Frank Magnuson looked like and told her that "they" had been there for a while with two other guys but that "Frank" had not yet showed up. After Joe Young told her they were going to "pop" the two men, she heard a man in the background pleading for his life and heard defendant's voice threatening to shoot the men.

Schaeffer-Young also said that, several hours later, she received another phone call from Joe Young in which he told her that they had killed three men at the house, one of whom was Magnuson. Schaeffer-Young's testimony about her phone conversations with Joe Young was corroborated by evidence showing that a key which fit the lock to Joe Young's residence was found the day after the murders in the house shared by Magnuson and Curtis.

Police officers testified that they responded to the scene of the murders and made plaster casts of shoe impressions found outside the window which the gunmen used to gain entry. A representative from the company which manufactured the shoes Fears allegedly wore stated that each shoe had a unique sole pattern. An expert witness in the field of footwear impression evidence testified that it was "highly probable" that the impressions found at the scene were made by the pair of shoes taken from defendant when he was arrested.

Curtis viewed defendant's shoes along with several other pairs of shoes in a shoe lineup. Curtis testified that defendant's shoes might have been worn by the shorter of the two gunmen.

Prior to defendant's trial in this case, one of the four Parkside robbers came forward and, in exchange for immunity, agreed to testify. The robber, Derek Everett, testified that he committed the robbery with Roy Young, Joe Young, and defendant, Kevin Fears.

Defendant was convicted of all charges by a jury which declined to impose the death penalty. Defendant was sentenced to two consecutive life sentences and additional consecutive sentences totalling 144 years.

Details of the investigation which led to defendant's arrest, the procedural history of the case, and other relevant facts are set out in this opinion.

I.

Statutory Speedy Trial

Defendant first argues that the trial court erred in denying his motion to dismiss the charges because of a violation of his statutory right to a speedy trial. Section 18-1-405, C.R.S. (1986 Repl.Vol. 8B). More specifically, defendant contends that the speedy trial period was not tolled during the time required for the supreme court to review the trial court's ruling that Colorado's death penalty statute was unconstitutional. We disagree.

Defendant pled not guilty to the charges in this case on February 1, 1990, and a jury trial was scheduled for June 11, 1990. On May 9, 1990, the district court ruled that Colorado's death penalty statute, as amended in 1988, was unconstitutional. On that same date, the prosecution filed a notice of appeal in the supreme court. The prosecution's notice of appeal denominated the appeal as an interlocutory appeal pursuant to § 16-12-102(1), C.R.S. (1986 Repl.Vol. 8A).

In People v. Young, 814 P.2d 834, 836 (Colo.1991), the supreme court held that: "[S]ection 16-12-102(1) does not authorize [the prosecution's] appeal but ... we can and should exercise our original jurisdiction under C.A.R. 21 to review the district court's ruling invalidating Colorado's death penalty sentencing statute." In reaching that conclusion, the supreme court first held that "a pre-trial ruling that the death penalty statute violates the Colorado Constitution [is not] a 'final judgment' for the purposes of appeal under subsection 16-12-102(1)" and that the section therefore was not a "source of ... jurisdiction to review the district court's interlocutory ruling...." People v. Young, supra, 814 P.2d at 838.

Notwithstanding that conclusion, the supreme court went on to suspend the rules of appellate procedure pursuant to C.A.R. 2 and to exercise original jurisdiction to review the district court's ruling under C.A.R. 21. The supreme court concluded that, if it did not exercise such jurisdiction, a direct appeal would be an inadequate remedy "because the prosecution will be foreclosed from seeking the death penalty in this case even if the district court's ruling were to be later overturned on appeal." People v. Young, supra, 814 P.2d at 839.

The supreme court then addressed the merits of the district court's ruling and held that, as amended in 1988, the death penalty statute was unconstitutional under the Colorado Constitution. The supreme court's opinion, as modified on denial of the prosecution's petition for rehearing, was issued on July 29, 1991. People v. Young, supra.

After a second original proceeding in the supreme court, which we consider in Part II in addressing the defendant's claim of a denial of the constitutional right to a speedy trial, the district court denied defendant's motion to dismiss the charges for violation of his statutory right to a speedy trial. The court reasoned that the supreme court's ruling in People v. Young, supra, was a "redenomination" of the prosecution's appeal such that the statutory speedy trial period was tolled because jurisdiction was ultimately accepted in the supreme court.

Section 18-1-405(1), C.R.S. (1986 Repl.Vol. 8B) provides that: "[I]f a defendant is not brought to trial on the issues raised by the complaint, information, or...