People v. Guffie, 83CA1193

• Decision Date: 20 August 1987
• Docket Number: No. 83CA1193,83CA1193
• Citation: 749 P.2d 976
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Willie Frank GUFFIE, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 976

749 P.2d 976

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Willie Frank GUFFIE, Defendant-Appellant.

No. 83CA1193.

Colorado Court of Appeals Div. I.

Aug. 20, 1987.

Rehearing Denied Oct. 8, 1987.

Certiorari Denied Feb. 8, 1988.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., David L. Saine, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Jane S. Hazen, Denver, Tegtmeier & Sears, P.C., Mary G. Allen, Colorado Springs, for defendant-appellant.

BABCOCK, Judge.

Defendant, Willie Frank Guffie, appeals the judgments of conviction entered on jury verdicts finding him guilty of first degree (felony) murder, first degree burglary, second degree assault, and two counts of aggravated robbery. We affirm.

During a night in August 1982, two robberies were reported to police within half an hour of each other. The victim of the first robbery reported that two black men had entered his home and bound and gagged him at gunpoint. The men left, taking the victim's guns and other property. In the second robbery, which occurred within blocks of the first, the victim and his girlfriend were awakened by gunshots. A black man then entered their room, ordered them to lie face down on their bed, and demanded money. After searching for the victim's wallet, the man left the room. The victim heard voices coming from the living room, then crashing noises and more shots, one of which hit him in the foot. After he heard the front door close, he went to check on his roommate, who was fatally wounded. The victim also noticed that his cassette deck was missing.

Police responding to the victims' calls stopped a car occupied by two black men, defendant and a companion. Based on objects seen in the car, which the victims later identified as stolen, police arrested both men. Although both defendant and the other man were charged with the same offenses, their cases were severed for trial.

I.

Defendant first contends that the instructions and verdict forms given to the jury constituted plain error because they contained a definition in the disjunctive of an essential element of felony murder that permitted the jury to return a verdict that was not unanimous as to that charge. We disagree.

Defendant was charged with first degree murder of the homicide victim during the commission of an aggravated robbery and, as a separate charge, with the aggravated robbery of the second victim and the girlfriend. The jury was instructed that, for purposes of the felony murder charge, defendant could be found guilty if the murder occurred during the aggravated robbery of either the decedent, the second victim, or the girlfriend. The special verdict form for aggravated robbery stated that the jury had found defendant guilty of the robbery of either the second victim or the girlfriend. Hence, although there were two victims of that robbery, the verdict form allowed the jury to find defendant guilty for the robbery of either of them.

Defendant argues that because the jurors could have been divided on who was the aggravated robbery victim, the conviction for felony murder was not the result of a unanimous verdict. Because defendant did not object to either the instruction or the verdict form at trial, review is under a plain error standard. Crim.P. 30 and Crim.P. 52(b). Thus, defendant must show not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to his conviction. People v. Rubanowitz, 688 P.2d 231 (Colo.1984).

Unanimity in a verdict means only that each juror agrees that each element of the crime charged has been proven to that juror's satisfaction beyond a reasonable doubt. Jurors are not required to agree on what particular evidence is probative on a specific element of a crime, particularly if the evidence supports alternative theories of how that element occurred. People v. Lewis, 710 P.2d 1110 (Colo.App.1985).

Aggravated robbery is an element of felony murder, see § 18-3-102(1)(b), C.R.S. (1986 Repl.Vol. 8B); but it is not necessary that the robbery victim also be the murder victim. See People v. Raymer, 626 P.2d 705 (Colo.App.1980), aff'd, 662 P.2d 1066 (Colo.1983). Hence, the felony element of felony murder may be satisfied by a showing that the decedent was killed during the commission of an aggravated robbery of one of several alternative victims. It is therefore not necessary that jury members unanimously agree on the specific victim of the underlying felony in convicting a defendant of felony murder, provided each juror is convinced beyond a reasonable doubt of the aggravated robbery of any one or more of the alternative victims. See People v. Lewis, supra.

Because the crime of aggravated robbery is a lesser offense which merges into the greater offense of felony murder committed during an aggravated robbery, defendant could not be sentenced for both aggravated robbery and felony murder of the decedent. See People v. Raymer, 662 P.2d 1066 (Colo.1983). Thus, although defendant could not have been sentenced for both aggravated robbery and murder of the homicide victim, because the killing occurred during the aggravated robbery of three separate victims, the jury instruction that defendant could be convicted of felony murder committed during the robbery of either the decedent, the second victim, or his girlfriend was not error. See People v. Lewis, supra; see also Bizup v. People, 150 Colo. 214, 371 P.2d 786, cert. denied, 371 U.S. 873, 83 S.Ct. 144, 9 L.Ed.2d 112 (1962) (felony murder is committed when robbery and homicide are part of same continuous transaction).

Here, sufficient evidence was presented from which the jury could have found that defendant killed the homicide victim while robbing him or assisting in his robbery; there was also sufficient evidence that defendant robbed or assisted in the robbery of both the second victim and his girlfriend. The jury was properly instructed on complicity. Because there was sufficient evidence of alternative means of committing felony murder, jury unanimity as to the identity of an aggravated robbery victim of the underlying felony was not required. See People v. Lewis, supra. Thus, considering the entire record of this case, we cannot say that defendant was deprived of his right to a unanimous verdict on the felony murder conviction. See People v. Noble, 635 P.2d 203 (Colo.1981). Superceded by statutes as stated in People v. Thompson, 717 P.2d 972 (Col.App.1985).

Here, testimony established that the second victim and his girlfriend were robbed at the same time in the same room. Although we find no plain error, it would have been better to issue a special verdict form for each victim. However, there is no reasonable possibility that this instruction contributed to defendant's conviction.

II.

Defendant next contends that the trial court erred in finding that police had reasonable suspicion to stop defendant's car, and that it therefore erred in denying his motion to suppress evidence and statements obtained as a result of the stop. Again, we disagree.

The facts of the stop are recounted in People v. Weeams, 665 P.2d 619 (Colo.1983), an interlocutory appeal of a trial court ruling in the prosecution of defendant's companion:

"At approximately 1:15 on the morning of August 23, 1982, the Aurora police received a call reporting an armed robbery at 1135 Florence Street. The report described the suspects as two black males, twenty-five to thirty years of age, approximately 5'9"' tall, dressed in dark clothing, and wearing white tennis shoes. According to the radio report, the suspects were armed with a pistol, a sawed- off shotgun, and a .38 caliber revolver taken from one of the robbery victims.

"At approximately 1:38 a.m., the Aurora police were notified of a second armed robbery at 1245 Emporia Street, two and one-half blocks from the first robbery. In the second criminal episode, one person was killed and another wounded. The suspects were again described in the police report as two black males.

"At 1:46 a.m., Lieutenant Sloan entered the vicinity. While driving into the area where the crimes were committed, he observed only two other vehicles, each occupied by a single white male. After arriving at the crime scene, he saw a vehicle occupied by two black males in their twenties, wearing dark clothing. He followed their vehicle for several blocks without seeing any other vehicles. Sloan and Officer Huffman used their public address system and directed the vehicle to stop."

An investigatory stop is proper when the officers conducting it have a reasonable suspicion that the individual has committed the crime, the purpose of the detention is reasonable, and the scope and character of the intrusion are reasonably related to its purpose. People v. Weeams, supra; Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971).

Defendant contends only that the police officers who stopped him did not have a reasonable and articulable suspicion that he had committed a crime. In People v. Weeams, supra, our supreme court determined that the scope and character of the police intrusion upon this defendant was reasonable under the circumstances. However, it declined to say whether the trial court was correct in ruling there was a reasonable and articulable suspicion to support the stop. We now address that issue.

A court faced with the question of the sufficiency of the basis for an investigatory stop must determine whether the totality of the circumstances provided the officer with a particularized and objective basis for suspecting that an individual is or has been engaged in criminal activity. People v. Bell, 698 P.2d 269 (Colo.1985). The factors material to a determination whether an investigatory stop is permissible include the particularity of the description of the offender or the vehicle in which he fled; the size of the area in which the...