People v. Jones

• Decision Date: 13 May 1999
• Docket Number: No. 97CA1568.,97CA1568.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Trevor P. JONES, Defendant-Appellant.
• Court: Colorado Court of Appeals

990 P.2d 1098

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Trevor P. JONES, Defendant-Appellant.

No. 97CA1568.

Colorado Court of Appeals, Div. A.

May 13, 1999.

Certiorari Denied January 18, 2000.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Kathleen M. Byrne, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Claudia Brett Goldin, Deputy State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Trevor P. Jones, appeals the judgments of conviction entered on jury verdicts finding him guilty of murder in the first degree (felony murder), reckless manslaughter, robbery, and conspiracy to commit robbery. We affirm in part, vacate in part, and remand with instructions.

Defendant agreed to sell a gun to the victim. Before the sale, however, he and a friend decided that, after giving the gun to the victim in exchange for money, defendant would retake possession of the gun from the victim "using some excuse" and would then keep both the gun and the money.

Thereafter, defendant and his friend met the victim to consummate the transaction. When the two entered the back seat of a vehicle in which the victim was a front seat passenger, defendant sat directly behind the victim. Defendant handed the gun to the victim and received the money. He then asked the victim to return the gun so he could demonstrate how to load it. When the victim complied, defendant loaded the gun, chambered a round, and told the victim that it was "ready to go." Then, still holding the gun, defendant exited the vehicle, approached the front passenger window, and said, "You better not say anything or this'll come back on you." The gun then discharged, fatally wounding the victim.

While defendant was charged with first degree murder after deliberation, the jury acquitted him of that charge and instead convicted him of reckless manslaughter. Defendant was also found guilty of felony murder with robbery as the predicate felony, robbery, and conspiracy to commit robbery.

Defendant was sentenced to life imprisonment without parole for felony murder, six years for reckless manslaughter, eight years for robbery, and eighteen months for conspiracy to commit robbery, with all sentences to run concurrently. This appeal followed.

I.

The parties assert, and we agree, that defendant cannot be convicted of both felony murder and reckless manslaughter for the same killing. See People v. Leske, 957 P.2d 1030 (Colo.1998); People v. Bartowsheski, 661 P.2d 235 (Colo.1983); People v. Lowe, 660 P.2d 1261 (Colo.1983). Accordingly, those two convictions must be vacated, and only one conviction may enter for the homicide. See People v. O'Neill, 803 P.2d 164 (Colo.1990).

However, the parties disagree as to which homicide conviction to retain. Defendant contends that the reckless manslaughter conviction must stand, while the People assert that it is the felony murder conviction that must be upheld. We agree with the People.

In deciding which of two convictions to retain under these circumstances, a court should enter as many convictions and impose as many sentences as are legally possible so as fully to effectuate the jury's verdict. People v. Glover, 893 P.2d 1311 (Colo.1995); People v. Fisher, 926 P.2d 170 (Colo.App.1996).

Defendant notes, correctly, that he cannot be convicted of both felony murder and robbery because robbery, as the predicate felony, is a lesser-included offense of felony murder. See People v. Rodriguez, 914 P.2d 230 (Colo.1996); People v. Bartowsheski, supra. Thus, he reasons, the jury's verdict will be maximized by vacating the felony murder conviction because, in that way, the robbery and reckless manslaughter convictions will thereby stand, retaining the highest number of convictions and sentences. He acknowledges that vacating the felony murder conviction will result in a lower sentence, but he argues that considering punishment when determining how best to effectuate a jury's verdict undermines the division between fact-finding and sentencing.

Contrary to defendant's contention, existing case law indicates that we are to take into account the length of the sentences in making this determination. For example, as noted in People v. Glover, supra, 893 P.2d at 1315: "In each of the preceding cases the trial court selected the combination of offenses that produced the most convictions and the longest sentences in order to maximize the effect of the jury's verdicts." See also People v. Osborne, 973 P.2d 666 (Colo.App.1998); People v. Cole, 926 P.2d 164 (Colo.App.1996).

Further, we do not agree that considering the highest number of convictions and the highest number of sentences is the exclusive directive under People v. Glover, supra. Instead, we conclude that a court should also consider the General Assembly's felony classification of the various crimes committed by the defendant, together with the length of sentences, because "maximizing" a jury's verdict in this context connotes giving effect to the most serious offense.

Here, if we vacate the felony murder conviction as defendant proposes, he would then stand convicted of reckless manslaughter, a class four felony; robbery, a class four felony; and conspiracy to commit robbery, a class five felony. Although the total number of convictions is then reduced only by one, the sentence would drop from life without parole to eight years. However, if we vacate the reckless manslaughter and robbery convictions as the People propose, defendant would then stand convicted of felony murder, a class one felony, and conspiracy to commit robbery, a class five felony, since we find no reason the conspiracy conviction cannot stand. Although the total number of convictions is then reduced by two, the life sentence without parole remains.

Because the latter option produces the longest sentence and effectuates the felony with the highest classification, we conclude that it maximizes the effect of the jury's verdict.

Defendant, nevertheless, relies upon language in People v. Bartowsheski, supra, 661 P.2d at 247, that requires a court to "give as much effect to the jury's resolution of the issues submitted to it as can be done without running afoul of the defendant's constitutional and statutory rights." (emphasis added) He asserts that vacating the felony murder conviction would best reflect the jury's resolution of the issues presented to it here because it would maximize the elements established by the verdict. He points out that the jury made a factual finding that he acted recklessly when he caused the victim's death, and without retaining the manslaughter verdict, a court cannot give effect to this critical finding. Further, he contends, all elements of felony murder other than "causing the death of another" are reflected in the robbery conviction, and "causing the death of another" is in turn reflected in the manslaughter conviction.

We reject this contention. The "issues" presented to a jury in this context means the offenses presented for the jury's consideration, not simply the elements of each. See People v. Bartowsheski, supra, 661 P.2d at 247 ("because the two crimes of first degree murder and robbery do not preclude entry of separate judgments of conviction on both offenses, the trial court should enter judgments of conviction on those two crimes" (emphasis added)).

Relying on People v. Lowe, supra, defendant further asserts that, because vacation of one conviction is required by the rule of lenity, it would be anomalous under that rule to retain the felony murder conviction when the jury has decided that the defendant is "less culpable" by convicting him of the lesser included offense of reckless manslaughter. Again, we disagree.

There are several flaws in this assertion. First, felony murder does involve a culpable mental state. It requires the actor to act knowingly in perpetrating a robbery, although it does not specifically require any mens rea with regard to the death associated with commission of the felony.

Second, although the felony murder doctrine has been criticized because of the general proposition that liability for an act should be commensurate with the mental state of the perpetrator, see People v. Meyer, 952 P.2d 774 (Colo.App.1997) (Casebolt, J., specially concurring), degrees of culpability are not necessarily solely reflected in the mental state required for a particular crime.

While felony murder may be characterized as a strict liability crime because it requires no intent to kill, People v. Hickam, 684 P.2d 228 (Colo.1984), the General Assembly nevertheless has the authority to determine that a high degree of culpability exists when a death occurs in the course of commission of a felony. See People v. Morgan, 637 P.2d 338 (Colo.1981).

Third, the rule of lenity does not stand for the proposition that a court must show "leniency." Rather, it is a rule of statutory construction to be used when a statute is ambiguous, and here, no such ambiguity exists. See People v. Leske, supra.

Accordingly, we reject defendant's contention.

II.

Defendant next contends that the felony murder verdict must be vacated because it is inconsistent with the reckless manslaughter verdict and the jury's findings of culpability. We disagree.

If the existence of an element of one crime negates the existence of a necessary element of another crime, guilty verdicts on both are legally and logically inconsistent and should not be sustained. People v. Frye, 898 P.2d 559 (Colo.1995); People v. Lee, 914 P.2d 441 (Colo.App.1995).

Here, the jury, through its reckless manslaughter verdict, found that the killing was reckless. Because the jury rejected murder after deliberation and second degree murder, it must have...