People v. Glover, No. 94SC299

Docket NºNo. 94SC299
Citation893 P.2d 1311
Case DateApril 24, 1995
CourtSupreme Court of Colorado

Page 1311

893 P.2d 1311
The PEOPLE of the State of Colorado, Petitioner,
v.
Stephen GLOVER, Respondent.
No. 94SC299.
Supreme Court of Colorado,
En Banc.
April 24, 1995.
Rehearing Denied May 15, 1995.

Page 1312

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Catherine P. Adkisson, Asst. Atty. Gen., Criminal Enforcement Section, Denver, for petitioner.

Barbara S. Blackman, Cherner and Blackman, Denver, for respondent.

Justice ERICKSON delivered the Opinion of the Court.

We granted the prosecution's petition for certiorari to review People v. Glover, No. 92CA0762 (Colo.App. Mar. 24, 1994) (not selected for official publication). 1 We affirm. The respondent, Stephen Glover (defendant), was charged with first-degree murder after deliberation, 2 first-degree felony murder, 3 robbery of the elderly, 4 conspiracy to commit robbery of the elderly, 5 and conspiracy to commit first-degree murder, 6 for the murder

Page 1313

and robbery of a single victim. The defendant was convicted by the jury on all charges.

The jury was given a special verdict form on the two counts of first-degree murder and returned a verdict of guilty on both counts. The trial court merged the two first-degree murder counts for sentencing purposes and imposed a life sentence. The defendant also was sentenced to a term of eight years for robbery of the elderly, twelve years for conspiracy to commit murder, and four years for conspiracy to commit robbery. The sentences were all to run concurrently with the life sentence.

On appeal, the court of appeals properly determined that the defendant could not be convicted of first-degree murder, under two separate theories, for the homicide of a single victim, and that there was no clerical error in the original amendment to the defendant's mittimus. Accordingly, we affirm and remand with directions.

I

In August, 1982, Charlie Peters hired Elizabeth Mayberry as a live in housekeeper. The defendant, whom Mayberry represented to be her husband, moved into Peters' home with Mayberry.

On August 24, 1982, the defendant left Peters' home at approximately 2:00 p.m. and went to the Sip N Eat bar, where he met Jerry Comacho. Comacho testified that over the next three and one-half hours, the defendant drank six glasses of beer. According to Comacho, the two men went to Gala Gardens for dinner, and the defendant drank one whiskey during dinner and three after dinner.

The defendant returned to Peters' home between 12:30 and 1:00 a.m. and woke Mayberry. Mayberry testified that the defendant asked her to enter Peters' bedroom and suffocate him with a pillow. When Mayberry refused, the defendant hit her, and they entered Peters' bedroom. Mayberry testified that she held Peters' feet while the defendant attempted to suffocate him. Peters rolled off of the bed, and the defendant choked him until he lost consciousness.

The defendant took Peters' wallet, silverware, television set, power tools, and other items. After cutting the telephone lines in Peters' home, Mayberry and the defendant fled in Peters' car.

Peters' left arm and jaw were fractured in the assault. In the hospital he developed pneumonia, suffered cardiac arrest, went into a coma on September 26, 1982, and died on October 11, 1982.

During the trial the prosecution examined Mayberry, Comacho, and a waitress regarding the defendant's state of intoxication. The defense did not request or tender jury instructions on the affirmative defense of intoxication or the lesser offense of second-degree murder, but argued that Peters died of causes unrelated to the assault.

Because the original mittimus reflected convictions for murder after deliberation under section 18-3-102(1)(a) and felony murder under section 18-3-102(1)(b), the defendant appealed. Relying on People v. Lowe, 660 P.2d 1261 (Colo.1983), the court of appeals vacated the first-degree murder convictions and remanded to the trial court with directions to prepare an amended judgment of conviction, sentence, and mittimus to reflect that the defendant had been convicted of one count of first-degree murder. People v. Glover, No. 83CA0976 (Colo.App. Apr. 25, 1985) (not selected for official publication) (Glover I).

On January 6, 1986, the trial court amended the mittimus to reflect a conviction for one count of murder after deliberation under section 18-3-102(1)(a). The amended mittimus included the robbery conviction and the two conspiracy convictions, but not the felony murder conviction.

In 1990, the defendant filed a pro se Crim.P. 35(c) motion for postconviction relief, contending that the trial court had failed to instruct the jury sua sponte that intoxication affected his ability to form the intent to commit murder after deliberation. The trial court denied the motion without a hearing, and the defendant appealed. The court of appeals reversed the order of dismissal and remanded to the trial court for an evidentiary hearing to determine the merits of the

Page 1314

defendant's Crim.P. 35(c) motion. People v. Glover, No. 90CA1845 (Colo.App. Sept. 5, 1991) (not selected for official publication) (Glover II).

At the evidentiary hearing on April 8, 1992, the trial court amended the mittimus to reflect a generic first-degree murder conviction under section 18-3-102 and concluded that the 1986 amendment was a clerical error. Because the instructional errors asserted by the defendant in his Crim.P. 35(c) motion applied only to the conviction for murder after deliberation and not his conviction for felony murder, the trial court did not reach the merits of the motion. The defendant appealed, and the court of appeals remanded to the trial court to determine whether the error in the 1986 amended mittimus was clerical or judicial. People v. Glover, No. 92CA0762 (Colo.App. Apr. 15, 1993) (not selected for official publication) (Glover III).

Based upon an affidavit by the judge who issued the first amended mittimus, the trial court determined that the 1986 amended mittimus contained a clerical error and the mittimus was properly amended in 1992. The trial court declined to address the merits of...

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55 practice notes
  • People v. Rodriguez, No. 91SA112
    • United States
    • Colorado Supreme Court of Colorado
    • 11 Marzo 1996
    ...be convicted for both felony-murder and first-degree murder after deliberation for the murder of a single victim. See People v. Glover, 893 P.2d 1311, 1314 (Colo.1995); People v. Lowe, 660 P.2d 1261, 1269-71 (Colo.1983); see also infra part Throughout his brief, and particularly in Issue 13......
  • Rodriguez v. Zavaras, No. Civ.A. 96-D-2559.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • 1 Abril 1999
    ...law because "[t]he rule of lenity permits a conviction for only one first-degree murder when there is a single victim." People v. Glover, 893 P.2d 1311, 1314 (Colo.1995). The two conspiracy convictions (conspiracy to commit second-degree kidnapping and conspiracy to commit aggravated motor ......
  • People v. Thoro Products Co., Inc., No. 01SC419.
    • United States
    • Colorado Supreme Court of Colorado
    • 19 Mayo 2003
    ...confinement credit be taken into account to determine when twenty year period for parole eligibility accrued); People v. Glover, 893 P.2d 1311 (Colo.1995) (because statutes were ambiguous, application of the rule of lenity requires that a defendant may not be convicted of felony murder and ......
  • People v. Washington, No. 03CA1895.
    • United States
    • Colorado Court of Appeals of Colorado
    • 31 Mayo 2007
    ...prior to sentencing because they were redundant of the convictions for first degree murder (after deliberation). See People v. Glover, 893 P.2d 1311, 1314 On August 22, 2003, the court sentenced defendant to serve consecutive life sentences in the Department of Corrections, without the poss......
  • Request a trial to view additional results
55 cases
  • Rodriguez v. Zavaras, No. Civ.A. 96-D-2559.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • 1 Abril 1999
    ...law because "[t]he rule of lenity permits a conviction for only one first-degree murder when there is a single victim." People v. Glover, 893 P.2d 1311, 1314 (Colo.1995). The two conspiracy convictions (conspiracy to commit second-degree kidnapping and conspiracy to commit aggravated motor ......
  • People v. Rodriguez, No. 91SA112
    • United States
    • Colorado Supreme Court of Colorado
    • 11 Marzo 1996
    ...be convicted for both felony-murder and first-degree murder after deliberation for the murder of a single victim. See People v. Glover, 893 P.2d 1311, 1314 (Colo.1995); People v. Lowe, 660 P.2d 1261, 1269-71 (Colo.1983); see also infra part Throughout his brief, and particularly in Issue 13......
  • People v. Thoro Products Co., Inc., No. 01SC419.
    • United States
    • Colorado Supreme Court of Colorado
    • 19 Mayo 2003
    ...confinement credit be taken into account to determine when twenty year period for parole eligibility accrued); People v. Glover, 893 P.2d 1311 (Colo.1995) (because statutes were ambiguous, application of the rule of lenity requires that a defendant may not be convicted of felony murder and ......
  • People v. Washington, No. 03CA1895.
    • United States
    • Colorado Court of Appeals of Colorado
    • 31 Mayo 2007
    ...prior to sentencing because they were redundant of the convictions for first degree murder (after deliberation). See People v. Glover, 893 P.2d 1311, 1314 On August 22, 2003, the court sentenced defendant to serve consecutive life sentences in the Department of Corrections, without the poss......
  • Request a trial to view additional results

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