People v. Kittrell, No. 87CA1095

Docket NºNo. 87CA1095
Citation786 P.2d 467
Case DateAugust 17, 1989
CourtCourt of Appeals of Colorado

Page 467

786 P.2d 467
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Donald Lee KITTRELL, Defendant-Appellant.
No. 87CA1095.
Colorado Court of Appeals,
Div. V.
Aug. 17, 1989.
Rehearing Denied Sept. 21, 1989.
Certiorari Denied Jan. 29, 1990.

Page 468

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and John Milton Hutchins, First Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, and Thomas R. Williamson and Katherine Campbell, Deputy State Public Defenders, Denver, for defendant-appellant.

Opinion by Judge MARQUEZ.

Defendant, Donald Lee Kittrell, appeals a judgment entered upon a jury verdict finding him guilty of murder in the first degree (felony murder) and murder in the second degree. We affirm in part, and remand with directions.

Defendant was charged by information with first degree murder (after deliberation) pursuant to § 18-3-102(1)(a), C.R.S. (1986 Repl.Vol. 8B) and first degree murder (felony murder) pursuant to § 18-3-102(1)(b), C.R.S. (1986 Repl.Vol. 8B) for the 1986 multiple stabbing death of a man. This murder occurred after the victim allegedly had solicited defendant for sex. The record reflects that defendant, who admitted stabbing the victim, stole the victim's wallet and keys and was later seen driving the victim's car.

I.

Defendant contends that the trial court erred by failing to instruct the jury adequately about the law of felony murder. We disagree.

Page 469

The jury was instructed on both first degree murder after deliberation and first degree felony murder, as well as robbery, the offense underlying the felony murder charge. The instruction setting out the elements of felony murder included among those elements that the defendant:

"(4) committed robbery, and

(5) in the course of or in the furtherance of robbery, or in the immediate flight therefrom,

(6) the death of a person, other than one of the participants, is caused by anyone."

Prior to deliberations, the defendant tendered two jury instructions to the trial court. The first of these read, in pertinent part:

"Donald Kittrell contends that the homicidal act against [the victim] was committed before anything was taken from him."

The second stated:

"In order to find the Defendant guilty of Murder in the First Degree as defined in [the felony murder instruction], you must find that the Defendant was committing or attempting to commit the crime of Robbery at the time he caused the death of [the victim]."

The trial court refused the second of these instructions, but accepted and gave to the jury a modified version of defendant's first instruction which, as modified, read:

"Donald Kittrell contends that the homicidal act against [the victim] was committed before the intent to take anything was formed."

Defendant asserts that a conviction for felony murder required proof of an intent to commit the underlying felony either prior to, or concomitant with, the killing of the victim. The People do not take issue with this proposition. We conclude that there was no error in the court's instructions.

Defendant's tendered instructions did not contain the language which defendant now asserts was erroneously omitted. Further, the court gave a modified version of his first tendered instruction and, as is discussed below, the second was an incorrect statement of the law.

The court correctly instructed the jury on the elements of robbery. See COLJI-Crim. No. 15:01. The court's felony murder instruction essentially follows COLJI-Crim. No. 9:02 (1983) and the language of § 18-3-102(1)(b), C.R.S. (1986 Repl.Vol. 8B). See People v. Scheer, 184 Colo. 15, 518 P.2d 833 (1974). In our view, the instructions as a whole clearly informed the jury of the applicable law. See People v. Freeman, 739 P.2d 856 (Colo.App.1987).

The purpose of the felony murder statute is to hold a participating robber accountable for a nonparticipant's death, even though unintended, as long as death is caused by an act committed in the course of or in furtherance of the robbery or in the course of immediate flight therefrom. People v. Raymer, 662 P.2d 1066 (Colo.1983). The prosecution still has to prove the homicide and all elements of the underlying felony beyond a reasonable doubt. People v. Morgan, 637 P.2d 338 (Colo.1981). Hence, we conclude that the court did not commit error in its instructions.

II.

We reject defendant's contention that the court erred in failing to accept the second tendered instruction quoted above, since the instruction did not completely and correctly reflect the law of felony murder.

A person commits felony murder if:

"Acting either alone or with one or more persons, he commits or attempts to ... commit ... robbery ... and, in the course of or in furtherance of the crime that he is committing or attempting to commit, or of immediate flight therefrom, the death of a person, other than one of the participants, is caused by anyone."

Section 18-3-102(1)(b), C.R.S. (1986 Repl.Vol. 8B).

Hence, by its plain language, § 18-3-102(1)(b) is not so limited as to allow conviction only if there is a finding that the...

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10 practice notes
  • People v. Auman, No. 99CA0016.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 26, 2002
    ...CJI-Crim. as authoritative. See, e.g., Patton v. People, 35 P.3d 124, 131 (Colo.2001)(definition of "possession"). In People v. Kittrell, 786 P.2d 467, 469 (Colo.App.1989), a division of this court approved a felony murder instruction that set out among the elements: "(4) committed robbery,......
  • People v. Doubleday, No. 08CA2433.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 30, 2012
    ...1191 (Colo.App.2000) (felony murder "requires as one of its elements that the principal commit a predicate felony"); People v. Kittrell, 786 P.2d 467, 469 (Colo.App.1989) ("The prosecution ... has to prove the homicide and all elements of the underlying felony beyond a reasonable doubt."). ......
  • Deutcsh v. State
    • United States
    • Alabama Court of Criminal Appeals
    • July 24, 1992
    ...of the accused, the court is obligated to clarify the matter for the jury in a concrete and unambiguous manner." People v. Kittrell, 786 P.2d 467, 470 (Colo.App.1989). "Where the jury raises an explicit question on a point of law arising from facts over which there is doubt or confusion, th......
  • People v. Chase, No. 09CA1908
    • United States
    • Colorado Court of Appeals of Colorado
    • March 14, 2013
    ...original instructions properly placed the burden of proof on the People and adequately defined the questioned term); People v. Kittrell , 786 P.2d 467, 470 (Colo.App.1989) (appropriate to refer the jury back to instructions when they adequately define the elements of the offense which are t......
  • Request a trial to view additional results
10 cases
  • People v. Auman, No. 99CA0016.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 26, 2002
    ...CJI-Crim. as authoritative. See, e.g., Patton v. People, 35 P.3d 124, 131 (Colo.2001)(definition of "possession"). In People v. Kittrell, 786 P.2d 467, 469 (Colo.App.1989), a division of this court approved a felony murder instruction that set out among the elements: "(4) committed robbery,......
  • People v. Doubleday, No. 08CA2433.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 30, 2012
    ...1191 (Colo.App.2000) (felony murder "requires as one of its elements that the principal commit a predicate felony"); People v. Kittrell, 786 P.2d 467, 469 (Colo.App.1989) ("The prosecution ... has to prove the homicide and all elements of the underlying felony beyond a reasonable doubt."). ......
  • Deutcsh v. State
    • United States
    • Alabama Court of Criminal Appeals
    • July 24, 1992
    ...of the accused, the court is obligated to clarify the matter for the jury in a concrete and unambiguous manner." People v. Kittrell, 786 P.2d 467, 470 (Colo.App.1989). "Where the jury raises an explicit question on a point of law arising from facts over which there is doubt or confusion, th......
  • People v. Chase, No. 09CA1908
    • United States
    • Colorado Court of Appeals of Colorado
    • March 14, 2013
    ...original instructions properly placed the burden of proof on the People and adequately defined the questioned term); People v. Kittrell , 786 P.2d 467, 470 (Colo.App.1989) (appropriate to refer the jury back to instructions when they adequately define the elements of the offense which are t......
  • Request a trial to view additional results

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