People v. Harlan, No. 95SA298.

• Decision Date: 27 March 2000
• Docket Number: No. 95SA298.
• Citation: 8 P.3d 448
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Eliot HARLAN, Defendant-Appellant.
• Court: Colorado Supreme Court

8 P.3d 448

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Eliot HARLAN, Defendant-Appellant.

No. 95SA298.

Supreme Court of Colorado, En Banc.

March 27, 2000.

As Modified on Denial of Rehearing September 11, 2000.¹

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Alan J. Gilbert, Solicitor General, John Daniel Dailey, Deputy Attorney General, Paul R. Wolff, Assistant Attorney General, Paul Koehler, Assistant Attorney General, Criminal Enforcement Section, Capital Crimes Unit, Denver, Colorado, Robert S. Grant, Special Assistant Attorney General, Steven L. Bernard, Special Assistant Attorney General, Denver, Colorado, Attorneys for Plaintiff-Appellee.

David Kaplan, Colorado State Public Defender Kathleen A. Lord, Deputy State Public Defender Terry L. Brake, Deputy State Public Defender Denver, Colorado Attorneys for Defendant-Appellant.

Justice MARTINEZ delivered the Opinion of the Court.

Table of Contents² I. FACTS AND PROCEDURAL HISTORY ............................ 458 II. PRETRIAL ISSUES ......................................... 459 A. Voir Dire ............................................ 459 B. Venue ................................................ 468 III. GUILT PHASE ISSUES ...................................... 470 A. Instruction on Affirmative Defense of Intoxication ... 470 B. Specific Intent Element of First Degree Murder ....... 474 C. Asportation Element of Second Degree Kidnapping ...... 476 D. Attempted Murder of Maloney .......................... 478 IV. SENTENCING PHASE ISSUES ................................. 480 A. Pretrial Discovery of Harlan's Expert Witnesses ...... 480 B. Aggravating Factors .................................. 482 C. Dunlap Issues ............................... 493 V. INDEPENDENT REVIEW ...................................... 498 A. Appropriateness ...................................... 498 B. Arbitrariness ........................................ 499 VI. DIRECTIONS ON REMAND .................................... 501 VII. APPENDIX ................................................ 501

A jury found defendant Robert Harlan guilty of the kidnap, attempted first degree murder, and first degree murder of Rhonda Maloney, and the attempted murder of Jaquie Creazzo. Following a sentencing hearing, the jury sentenced the defendant to death. In addition, the trial court imposed three forty-eight-year consecutive sentences on the attempted murder and kidnapping verdicts. The defendant appeals under section 16-11-103(6), 6 C.R.S. (1999),³ raising pretrial, guilt phase, and sentencing phase claims of error. We conclude that none of these claims merits reversal of the death sentence.

I. FACTS AND PROCEDURAL HISTORY

On February 12, 1994, at approximately 2:00 a.m., Rhonda Maloney (Maloney) finished her shift at Harrah's Casino in Central City. She took a shuttle bus to her car, which was in the Golden bus station parking lot, arriving there between 3:00 and 3:30 a.m. At approximately 5:45 a.m., Jaquie Creazzo (Creazzo) was driving eastbound on I-76. Taking the ramp onto northbound I-25, Creazzo saw two cars parked on the side of the highway; she slowed down to see if there was a problem or if there had been an accident. Maloney got out of the passenger side of one of the cars and drew Creazzo's attention to her. Creazzo stopped her car slightly past Maloney, and, as Creazzo was backing up, Maloney jumped into the car.

Maloney and Creazzo drove northbound on I-25. Robert Harlan (Harlan) began to pursue them in one of the cars that had been parked by the road. Maloney told Creazzo that she needed help to escape from a man with a gun who was going to kill her and that he had raped her for two hours.⁴

As Harlan pursued Creazzo and Maloney, his car drew up alongside Creazzo's and Harlan fired several shots into the car. Several bullets hit Creazzo in the knee, spine, and face.⁵ Creazzo lost control of her car, which swerved across the median and stopped on the front lawn of the Thornton Police Department. Harlan parked his car and approached Creazzo and Maloney. Harlan pulled Maloney and her belongings from the car, warning Creazzo not to tell anyone what had happened and threatening to kill her if she did. Harlan then dragged Maloney to his car and drove away.

On February 15, 1994, police arrested Harlan in connection with Creazzo's shooting and Maloney's abduction. Maloney's body was found on February 19, 1994; an autopsy revealed that she suffered several skull and facial fractures, wounds consistent with sexual assault, and other severe injuries. The autopsy also established that Maloney died from a gunshot wound to the head. Harlan eventually was charged with one count of first degree murder after deliberation, in violation of section 18-3-102(1)(a), 6 C.R.S. (1999); one count of felony murder, in violation of section 18-3-102(1)(b), 6 C.R.S. (1999); two counts of attempted first degree murder after deliberation, in violation of section 18-2-101(1), 6 C.R.S. (1999) and section 18-3-102(1)(a); two counts of second degree kidnapping, in violation of section 18-3-302, 6 C.R.S. (1999); and one count of assault, in violation of section 18-3-202, 6 C.R.S. (1999). The prosecution also alleged that Harlan was eligible for mandatory sentencing for violent crimes pursuant to section 16-11-309, 8A C.R.S. (1986 & 1994 Supp.).

On June 20, 1995, a jury found Harlan guilty of all charges. The jury also determined that the defendant had used a deadly weapon during the attempted murders and that he had robbed and sexually assaulted Maloney in the course of kidnapping her. After hearing evidence in the sentencing phase of the trial, the jury returned a death sentence, which was subsequently imposed by the trial court.

Harlan appealed his convictions to the court of appeals and his death sentence to this court. We consolidated the appeal by transferring the court of appeals case to this court. After considering all the issues Harlan presents concerning both his convictions and sentence, we find no error that merits reversal of the death sentence. Moreover, independently reviewing the propriety of the death sentence under section 16-11-103(6), we find no factors that warrant overturning it. Accordingly, we dissolve the stay of execution and remand this case to the trial court to set a date for imposition of the sentence.

Harlan raises numerous pretrial, guilt phase, and sentencing phase claims of error. We find little guidance from the submitted defense briefs as to which of these claims have priority or are most significant from counsel's standpoint. See People v. Rodriguez, 914 P.2d 230, 303 (Colo.1996). Thus, we have selected those claims of error that we believe focus on the fundamental merits of the defendant's case. We address in this opinion those issues that: (1) come close to requiring reversal of the death sentence; (2) constitute legal questions that had not been discussed by us at the time this case was tried; or (3) potentially bear on future capital cases. Because they are clearly resolvable under our precedent, and because to discuss each of the issues in depth would unnecessarily lengthen the opinion, we deny the balance of the defendant's claims without extensive discussion in the attached appendix, along with a brief statement of the legal principles or factual grounds that lead to a denial of the claim. We do not intend for the appendix to be cited and relied upon as authority; our brief statements in it are not sufficiently detailed to give guidance in future cases. However, they do constitute the law of this case for future reference.

In Part II we discuss the significant pretrial issues Harlan presents. Parts III and IV address the most important guilt and sentencing phase issues. Part V sets forth our statutorily mandated independent review of the defendant's death sentence.

II. PRETRIAL ISSUES

A. Voir Dire

1.

The Due Process Clauses of the United States and Colorado constitutions guarantee every criminal defendant the right to a fair trial. See U.S. Const. amends. V, XIV; Colo. Const. art. II, §§ 16, 25. Even minimal standards of due process are violated when an accused does not receive a fair trial. See Groppi v. Wisconsin, 400 U.S. 505, 509, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971); see also In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). An impartial jury is a fundamental part of the constitutional right to a fair trial. See People v. Rhodus, 870 P.2d 470, 473 (Colo.1994); People ex rel. Faulk v. District Court (Anderson), 673 P.2d 998, 1000 (Colo.1983). Every individual, whether detested or revered, is entitled to a fair trial before an impartial jury. See Oaks v. People, 150 Colo. 64, 68-69, 371 P.2d 443, 447 (1962).

a.

We have previously held that affording a criminal defendant full use of his allotted peremptory challenges is an intrinsic part of securing a balanced and impartial jury. In People v. Macrander, 828 P.2d 234, 246 (Colo.1992), we reversed the defendant's conviction because the trial court erroneously denied his challenge for cause to a potential juror struck by the defendant's use of a peremptory challenge.⁶Macrander turned on our consideration of the role played by peremptory challenges in a criminal trial, particularly when exercised by an accused. We observed that "[t]he peremptory challenge serves the purpose of providing both the defense and the prosecution with a greater opportunity to secure a balanced and impartial jury by rejecting a limited number of prospective jurors without cause." Id. at 242 (internal quotation marks, citation and footnotes omitted); see also People v. Prator, 856 P.2d 837, 840 (Colo.1993) ("Peremptory challenges serve to `eliminate extremes of partiality on both sides' and `to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise.'") (...