People v. Garcia

• Decision Date: 09 September 1974
• Docket Number: No. 25730,25730
• Citation: 186 Colo. 167,526 P.2d 292
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jose David Urban GARCIA, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 292

526 P.2d 292

186 Colo. 167

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jose David Urban GARCIA, Defendant-Appellant.

No. 25730.

Supreme Court of Colorado, En Banc.

Sept. 9, 1974.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Dickie D. Lewis, Thomas M. Van Cleave III, Deputy State Public Defenders, Denver, for defendant-appellant.

HODGES, Justice.

Defendant Garcia was convicted by a jury of second-degree murder and assault with a deadly weapon. He was sentenced to concurrent terms in the penitentiary. He advances several grounds for reversal of his conviction, none of which have merit and we therefore affirm the judgment of the trial court.

At about 4:00 a.m., February 5, 1972, the defendant, who was carrying a rifle, knocked on the door of the house occupied by his ex-wife and her fiance , one Daniel Montoya. When defendant was refused entry, he broke the door window with the rifle barrel, fired and wounded Montoya. Montoya, however, was able to phone for the police before he ran from the house. Defendant then managed to gain entry, went to his ex-wife's bedroom, asked her to leave with him, and when she refused, he shot her three times. She died within an hour.

I.

To support the jury verdict of second-degree murder, there must be evidence of either express or implied malice. Walker v. People, 175 Colo. 173, 489 P.2d 584 (1971). The defendant argues that such evidence is lacking in this case. Our review of the record reveals that the evidence of malice was present and amply supports the verdict. For example, there was testimony by a bartender that several hours before the fatal shooting, defendant expressed his intention of 'going down there and kill them both.' The fact that defendant armed himself with a rifle before coming to the house of his ex-wife is also evidence from which the jury could properly infer malice. Hampton v. People, 171 Colo. 153, 465 P.2d 394 (1970); People v. Spinuzzi, 149 Colo. 391, 369 P.2d 427 (1962). Implied malice in a second-degree murder conviction is cogently discussed in our recent decision of People v. Hosier, Colo., 525 P.2d 1161, announced September 3, 1974.

II.

The specific intent to do bodily injury to another person is an essential element of the offense of assault with a deadly weapon. C.R.S.1963, 40--2--34. Also see Moyer v. People, 165 Colo. 583, 440 P.2d 783 (1968) and Armijo v. People, 157 Colo. 217, 402 P.2d 79 (1965). Defendant contends that this essential element was not proven and therefore his conviction of assault with a deadly weapon cannot be sustained. In this regard, the defendant alleges that the prosecution has not shown that the defendant intended to direct shots at Montoya, or at any other person, or to injure Montoya or any other person. Defendant buttresses this argument by testimony of Montoya that defendant's vision was blocked by a curtain when he shot Montoya.

In our view, there is considerable evidence from which the jury could infer the existence of the required specific intent. For instance, the evidence shows that the defendant screamed an expletive at Montoya at the time of the shooting. Also, the testimony of the homicide victim's daughter, who was present at the scene, supports an inference that defendant purposely directed shots at Montoya. Our examination of all of the testimony regarding the shooting injury to Montoya reveals ample evidence from which the jury could conclude that the required specific intent existed.

III.

The defendant contends that portions of the testimony of officer Wilcox, a technician employed by the Grand Junction Police Department, requires reversal.

On direct examination, while he was describing certain exhibits obtained from the homicide victim's home, officer Wilcox referred to the victim's bedroom as 'the room of the scene of the murder.' The trial court sustained the defendant's objection to this reference and immediately instructed the jury to disregard the witness' remark with respect to the legal conclusion of 'murder.' In our view, the trial court's action as to this part of officer Wilcox's testimony eliminated the possibility of prejudice. Furthermore, it appears quite evident that the officer was not offering any personal opinion of guilt as was condemned in McKee v. People,69 Colo. 580, 195 P. 649 (1921). Officer Wilcox used this phrase merely as a convenient reference to the place where he had obtained certain evidence. See Gallegos v. People, 157 Colo. 484, 403 P.2d 864 (1965).

During examination by defense counsel regarding the admissibility of an exhibit upon which the defendant's fingerprints appeared, officer Wilcox stated that there was also a print card in the permanent file. It is this remark which the defendant states improperly revealed to the jury that the defendant may have had a previous arrest record. In our view, this was a confusing and cryptic remark in the context of all the testimony and did not actually reveal anything of an improper nature to the jury. Therefore, there is no reversible error.

IV.

The defendant contends that the trial court should have granted its motion for a mistrial based upon the following incident.

While in the trial court's chambers, out of the presence of the jury, the judge indicated that he would sustain the defendant's objection to instructing the jury on firstdegree murder and would submit the case only on second-degree murder and lesser included offenses. The...