People v. Gordon, 99CA0419.

• Decision Date: 15 February 2001
• Docket Number: No. 99CA0419.,99CA0419.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David GORDON, Defendant-Appellant.
• Court: Colorado Court of Appeals

32 P.3d 575

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David GORDON, Defendant-Appellant.

No. 99CA0419.

Colorado Court of Appeals, Div. I.

February 15, 2001.

Certiorari Denied October 15, 2001.

Ken Salazar, Attorney General, John D. Seidel, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

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

Opinion by Judge DAILEY.

Defendant David Gordon appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree murder. We affirm.

In March 1998, police discovered the dead body of defendant's girlfriend lying in a bed in the house where she had lived with defendant. She had been shot four times in the head — once near the right ear and three times in and about the left eye. Two different guns had been used to shoot her, a derringer and a rifle. A blanket covered part of her body, and the blanket had a bullet hole that appeared to match up to the ear wound.

Defendant's relationship with his girlfriend had been deteriorating for some time, and there was evidence that the girlfriend had wanted to separate from defendant.

After his arrest, and without any prompting, defendant made several incriminating statements to law enforcement officials.

At trial, defendant testified that his girlfriend was depressed and using drugs. He admitted he shot her the three times in and about the eye, but only after she had shot herself near her right ear. According to defendant, he had been elsewhere in the house when he heard the gunshot, and he had no idea whether she intentionally or accidentally shot herself. He related that, in order to put her out of her misery, he shot her in the face once with a derringer he claimed was lying next to her and twice with a rifle he obtained from another room.

The coroner testified that he had never encountered a suicide where the person covered his or her head with a blanket before inflicting a head wound. He further testified that only the three shots defendant admitted taking penetrated the girlfriend's brain. He attributed her cause of death to multiple gunshot wounds and was unable to identify which wound actually caused her death.

The trial court instructed the jury on the crimes of first degree murder, second degree murder, second degree heat of passion murder, and reckless manslaughter. The jury found defendant guilty of first degree murder.

On appeal, defendant contends that the trial court erred in: (1) refusing to instruct the jury on the lesser offense of "aiding suicide" manslaughter; (2) refusing to instruct the jury adequately on his theory of defense; (3) admitting evidence of, and allowing cross-examination about, one of his statements; and (4) condoning prosecutorial misconduct during closing argument. In addition, he argues that the cumulative impact of prosecutorial misconduct in this case warrants reversal.

We address each of defendant's contentions in turn.

I. Lesser Offense Instruction

Defendant contends that the trial court erred in not instructing the jury on another lesser homicide offense, i.e., "aiding suicide" manslaughter. We disagree.

A trial court is not required to give a lesser offense instruction requested by a defendant unless there is some evidence tending to establish the lesser offense and a rational basis upon which the jury may acquit the defendant of the greater offense but convict him or her of the lesser. People v. Hennion, 923 P.2d 256 (Colo.App.1995).

Section 18-3-104(1)(b), C.R.S.2000, provides that a person commits manslaughter if "[s]uch person intentionally ... aids another person to commit suicide."

Here, the trial court found no evidence to support defendant's request for an instruction on "aiding suicide" manslaughter. According to the trial court, Colorado's aiding suicide statute applies only to individuals who furnish others with the means of committing suicide, and not to those who, like defendant, actively participate in causing the death of suicidal persons.

Defendant contends that § 18-3-104(1)(b) encompasses active participation in causing the death of a suicidal person. This follows, he argues, because the General Assembly did not limit or otherwise qualify the term "aids"; consequently, the plain language of the statute does not limit its scope to a passive, or indirect, type of aid or assistance.

The interpretation of statutes presents a question of law subject to de novo review. Hendricks v. People, 10 P.3d 1231 (Colo.2000).

In interpreting § 18-3-104(1)(b), our task is to ascertain and give effect to the intent of the General Assembly. People v. Swain, 959 P.2d 426 (Colo.1998). To discern legislative intent, we look first to the plain language of the statute itself. People v. McNeese, 892 P.2d 304 (Colo.1995). We read its words in context and give them effect according to either their commonly accepted meaning or whatever technical or particular meaning they may have acquired by legislative definition or otherwise. State v. Nieto, 993 P.2d 493 (Colo.2000). When the statutory language is clear and unambiguous, the statute must be interpreted as written without resort to interpretive rules and statutory construction. People v. Zapotocky, 869 P.2d 1234 (Colo.1994).

Here, the critical statutory term is "aids." The General Assembly has elsewhere defined the term "to aid" in a manner adverse to defendant's position. See § 18-1-901(3)(a), C.R.S.2000 ("`To aid' or `to assist' includes... to make possible or available, or to further the activity thus aided or assisted."). However, as defendant points out, that definition is not necessarily exclusive of other meanings. See Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150, 1154 (Colo.App. 1998)

("The word `includes' is generally used as a term of extension or enlargement when used in a statutory definition.").

Defendant's argument, however, ignores the context in which the term "aids" appears in § 18-3-104(1)(b). The statute reads "aids another to commit suicide" (emphasis added). This particular phraseology evidences a clear and unambiguous intent to penalize only persons who provide indirect types of aid or assistance to others who then go forward and kill themselves. See People v. Kevorkian, 447 Mich. 436, 527 N.W.2d 714 (1994)

(fn. 71) ("Suicide is, by definition, the killing of oneself," and there is "a distinction between killing oneself and being killed by another."). Indeed, as noted by the New Mexico Court of Appeals, "It is well accepted that `aiding,' in the context of determining whether one is criminally liable for their involvement in the suicide of another, is intended to mean providing the means to commit suicide, not actively performing the act which results in death." State v. Sexson, 117 N.M. 113, 116, 869 P.2d 301, 304 (N.M.Ct. App.1994). We agree with this analysis and consequently conclude that under the circumstances of this case, defendant's reliance on People v. Romero, 745 P.2d 1003 (Colo.1987)(construing complicity statute), is misplaced.

Other jurisdictions, interpreting similarly worded statutes, have reached the same conclusion. See People v. Cleaves, 229 Cal. App.3d 367, 375, 280 Cal.Rptr. 146, 150 (1991)

("deliberately aids, or advises, or encourages another to commit suicide" statutory language); Goodin v. State, 726 S.W.2d 956, 958 (Tex.App.1987)("aids or attempts to aid the other to commit or attempt to commit suicide" statutory language), aff'd en banc, 750 S.W.2d 789 (Tex.Crim.App.1988). See also Model Penal Code § 210.5(2) (1985)(proposing criminal penalties for "[a] person who purposely aids ... another to commit suicide."); Model Penal Code & Commentaries, § 210.5 cmt. 7 at 106 (1980)(noting that the provision applies "only when the actor goes no further than aid or solicitation; if he is himself the agent of death, the crime is murder notwithstanding the consent or even the solicitation of the deceased.").

Interpreting our statute accordingly serves important public policies: it guards against murders being disguised as suicides and ensures that suicidal persons have the maximum amount of opportunity to choose life instead of death. See Note, A Little Help From My Friends: The Legal Status of Assisted Suicide, 25 Creighton L.Rev. 1151 (1991-92).

Here, there was no evidence from which the jury could find that defendant merely furnished the victim the means to kill herself; by his own account, he actively engaged those means to kill her himself. To the extent that his acts caused her death, he would, under Colorado law, be guilty of some form of homicide other than aiding suicide; and, to the extent that his acts did not cause her death, he would be guilty of no homicide at all.

Consequently, we agree with the trial court and conclude that, because there was no evidence to support a conviction of aiding suicide manslaughter, no instruction on that offense was warranted.

II. Theory of Defense Instruction

Defendant next contends that the trial court erred in not adequately instructing the jury on his theory of the case. We disagree.

The trial court instructed the jury, at defendant's request, that there was evidence that defendant never intended deliberately to cause the victim's death and that he merely "reacted in an impulsive manner under the irresistible passion of seeing [the victim] convulsing and suffering, and shot [her] not knowing that she may have been dead."

The trial court refused defendant's request to also instruct the jury that:

In addition to the element of deliberation, the prosecution has the burden of proving causation, as well as all other elements of the crime charged, to your satisfaction beyond a reasonable doubt. If you, the jury, are not satisfied beyond a reasonable doubt that the defendant fired the shot which caused [the victim's] death, you must find him Not Guilty of the charge of Murder in the First Degree

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