People v. Fite, 79SA553
| Decision Date | 27 April 1981 |
| Docket Number | No. 79SA553,79SA553 |
| Citation | 627 P.2d 761 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joan Francise FITE, Defendant-Appellant. |
| Court | Colorado Supreme Court |
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., R. Michael Mullins, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Duthie & Tate, Harry G. Tate, Durango, for defendant-appellant.
The defendant, Joan Fite, appeals her conviction for murder in the second degree. She asserts various grounds for reversal including the claimed unconstitutionality of the second degree murder statute, section 18-3-103(2), C.R.S. 1973 (1978 Repl.Vol.8), the sufficiency of the prosecution's evidence to support the conviction, and various evidentiary rulings made by the court during the trial. We affirm the conviction.
The defendant was charged by direct information with murder in the first degree after deliberation. 1 The charge arose out of the shooting death of Thomas Fite, her husband, in the early morning hours of December 26, 1978, in their trailer home located approximately 11 miles west of Pagosa Springs. The prosecution's evidence established that on December 25, the evening before the shooting, the defendant and her husband, along with the defendant's daughter, Denise, and other guests, were drinking and playing cards at the Fite home. During the game the victim brandished a hand gun, joking that the game was going to be fair. He then placed the holstered gun on the buffet. Later, during the game, the defendant removed the gun from the buffet and placed it in the drawer of the bedroom night stand. The game eventually was terminated and close to midnight the defendant and the victim retired to their bedroom. Both were intoxicated and their relationship was very tense. They frequently argued, especially when drinking, and apparently were contemplating a divorce.
Denise, who was in an adjoining bedroom, was able to hear what took place when the shooting occurred. She heard the victim ask the defendant to have sex with him, to which the defendant responded, "When you start treating me like a human being, maybe I will let you." The victim called the defendant "a goddamned bitch" and struck her. After a sarcastic remark by the defendant, the victim hit her again. Shortly thereafter two shots were fired and the defendant came to Denise's bedroom and stated "I just shot Tom twice." Denise called the police and requested an ambulance. During the next several minutes the defendant told Denise about having warned her husband several times that she would shoot him if he ever hit her again.
The victim eventually was taken by ambulance to a hospital in Durango. There emergency surgery was performed in an effort to repair extensive damage from two gunshot wounds in his abdomen and chest.
The wounds included major damage to the victim's liver, stomach and pancreas. After surgery he was under intensive care for several days and treated with antibiotics. Clinically the victim appeared to improve remarkably. His attending physician, a general surgeon, discontinued antibiotic treatment in order to avoid the risk of toxic damage to other vital organs. Unknown to the physician, a liver abscess had been developing and on January 17, when the victim was scheduled for discharge, the abscess burst and infiltrated his entire system. The abscess was surgically drained and antibiotic therapy was resumed. However, the victim expired on January 30, 1979, from massive infection and multiple organ system failure secondary to the gunshot wounds.
Shortly after the shooting and before the victim had been taken to the hospital, Officer Ernest Rivas of the Pagosa Springs Police Department and the Archuleta County Sheriff, Dale Smith, arrived at the Fite home. Rivas asked the defendant for the gun and she spontaneously stated that she had warned her husband not to hit her anymore or she would kill him. The defendant had made similar statements to several persons during the six months preceding the shooting.
Officer Rivas and Sheriff Smith made various observations at the scene and seized several objects as evidence, the admissibility of which was questioned at trial. Rivas located the gun wrapped in a towel and locked it in the trunk of his car. Smith discovered on the bed near the victim an expended bullet slug on which he placed the date and his initials. He also observed that the mattress was encased in a sewn cover stained with blood. Photographs depicting the scene were taken. At approximately 4:00 a. m. Rivas delivered the gun, wrapped in the towel, to the sheriff's office. Upon unwrapping the towel Sheriff Smith observed the gun, a .38 caliber revolver, and a holster. He removed two empty shell casings and three loaded shells from the cylinder and dated and initialed each piece of evidence.
On January 26, 1979, Smith obtained a search warrant for the search of the Fite home. During the search he removed the mattress cover and noticed what appeared to be blood stains on the mattress. Examination of a hole in the mattress revealed an expended bullet slug lodged inside. Photographs of the bed, mattress, hole and slug were taken and the mattress was seized as evidence. In January 1979 the sheriff sent several items of evidence by registered mail to the Colorado Bureau of Investigation (CBI) for examination and testing. The first mailing consisted of the .38 caliber revolver, the bullet slug recovered from the bed on December 26, 1978, and the shell casings and bullets which he had removed from the gun upon its delivery to him by Officer Rivas. A separate mailing was made to the CBI of the bullet slug found inside the mattress during the search on January 26.
The preceding recapitulation provides the factual setting for the rulings during the trial challenged by the defendant. Outside the presence of the jury the court conducted a hearing on the admissibility of the mattress. The defendant objected to its admission, claiming that it was not in the same condition as on the evening of the shooting. The court overruled the defendant's objection. With the jury present the prosecution then elicited brief foundation testimony from Sheriff Smith about the mattress and offered it into evidence. Defense counsel conducted a voir dire examination on the exhibit and the trial court ruled the mattress inadmissible. The prosecution also elicited testimony from the sheriff that he observed what appeared to be blood stains on the mattress during his search of the defendant's home on January 26, 1979. The court admitted, without objection, the photographs of the bed and mattress taken on the evening of the shooting and also, over the defendant's objection, those taken later on January 26. Claiming an inadequate foundation as to the chain of possession, the defendant objected to the admission of the gun (exhibit 25), the holster (exhibit 26), the empty shell casings and loaded shells recovered from the gun (exhibit 29), and the bullet slug (exhibit 28) found inside the mattress on January 26. 2 The court admitted each exhibit and then permitted Ted Ritter, a firearms identification specialist for the CBI, to testify that in his opinion the two bullet slugs recovered from the bed and mattress had been fired by the .38 caliber revolver.
At the conclusion of the prosecution's case the defendant moved for a judgment of acquittal, arguing the insufficiency of the prosecution's evidence on culpability and causation. She also moved to dismiss the lesser offense of second degree murder for the reason that the statutory exclusion in section 18-3-103(2) of impaired mental condition and self-induced intoxication as defenses to second degree murder violates due process of law. The court denied both motions.
The defendant then elected to testify on her own behalf, denied any recollection of the shooting, and stated her last memory of the evening was that of being struck by her husband. Her principal witness was a psychiatrist who testified that she was suffering from an explosive personality and a seizure disorder which rendered the shooting an automatic response beyond her control. In the psychiatrist's opinion the defendant did not deliberate before the killing, lacked an intent to cause death, and did not know what she was doing when she shot her husband.
The trial court submitted to the jury the charge of first degree murder after deliberation and the lesser offenses of second degree murder, manslaughter upon sudden heat of passion, 3 and criminally negligent homicide. 4 The court gave the following instruction to the jury on the affirmative defense of impaired mental condition:
"It is an affirmative defense to the crimes of murder in the first degree, murder in the second degree, manslaughter, and criminally negligent homicide that the defendant, due to an impaired mental condition, did not have the capacity to form the culpable mental state required by the offense." 5
The jury was also instructed that if the death of the victim was caused by an independent supervening cause, unforeseen by the defendant and in which she did not participate, then the defendant would not be criminally responsible for the homicide. 6 The jury returned a verdict of guilty to murder in the second degree, resulting in a sentence to a term of ten to twenty years.
We address first the defendant's constitutional challenge to section 18-3-103(2), next her claim on the insufficiency of evidence to support her conviction, and lastly the evidentiary issues.
Section 18-3-103(2) provides that "(d)iminished responsibility due to lack of mental capacity or self induced intoxication is not a defense to murder in the second degree." The defendant argues that the statutory exclusion of these defenses violates due process of law because it deprives a criminal defendant of the right to contest the...
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