People v. Lankford, 25816
| Citation | 524 P.2d 1382,185 Colo. 445 |
| Decision Date | 29 July 1974 |
| Docket Number | No. 25816,25816 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Arlon Wayne LANDKFORD, Defendant-Appellant. |
| Court | Supreme Court of Colorado |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Aurel M. Kelly, First Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Lee Belstock, Deputy State Public Defender, Denver, for defendant-appellant.
The defendant, Arlon Wayne Lankford, was charged with first-degree murder, C.R.S.1963, 40--2--3, and was convicted by a jury of second-degree murder. The offense occurred on May 7, 1972, and the victim of the killing was his wife, Gladys C. Lankford.
The defendant asserts four grounds for reversal of his conviction of murder in the second degree. First, he asserts that there was insufficient evidence to support the conviction; second, that the jury should have been instructed on self-defense; third, that the trial court should have admitted evidence of a previous knifing offense committed by the People's only witness to the murder; and fourth, that a mistrial should have been granted because of the district attorney's characterization of the murder weapon as a 'Saturday-night special.' We affirm.
A brief summary of the evidence will suffice to place the defendant's argument in proper perspective in reference to his first assignment of error.
There is no substantial disagreement as to what transpired up to the time immediately prior to the killing. The defendant, sometime after work, joined his wife and a mutual friend, one Villegas, in the Lankfords' mobile home for a few beers. It was then decided to go into nearby Burlington, Colorado. The three of them spent the evening in town visiting various taverns, drinking more beer and finally leaving to return to the Lankford home. On the return trip, as the result of some disagreement between the Lankfords, the defendant ordered his wife to get out of the pick-up truck. After proceeding along the road a short distance further, Villegas induced the defendant to return for his wife. In the course of conversation, Lankford told Villegas that if his wife was still in the road he would run over her. However, she was lying in the field adjacent to the road. Villegas picked her up and brought her back to the pick-up. They then proceeded to the Lankford home.
The defendant entered the house first and when Mrs. Lankford and Villegas came in the defendant had a gun in his hand. At this point the People's evidence as articulated by Villegas and the testimony of the defendant differ in several material aspects.
The defendant states that he asked Villegas to leave; that Villegas stuffed his hand in his pocket; and that defendant pointed the pistol at him. At this juncture Villegas grabbed the pistol, and in the struggle which followed, the pistol discharged, accidently killing Mrs. Lankford.
Villegas, on the other hand, testified that, upon being confronted with the gun, he asked Lankford what he was going to do with the gun, and the defendant said, 'I'm going to kill this bitch.' Defendant then shot her in the chest.
In defendant's first assignment he contends that there was insufficient evidence to support his conviction of second-degree murder. The essence of the argument is that under the evidence presented to the jury, there were only two verdicts it could return: first-degree murder or involuntary manslaughter. Defendant maintains that if the jury had believed the People's evidence it would have had to return a verdict of first-degree murder. On the other hand, if the jury believed the testimony of the defendant, it could find him guilty only of involuntary manslaughter.
The rationale of defendant's argument is that in finding the defendant guilty of second-degree murder, the jury necessarily rejected Villegas' testimony and the only evidence remaining, that of the defendant, would support only an involuntary manslaughter verdict.
The People respond to this argument by contending that when the evidence is viewed in its most favorable light, it was sufficient to sustain a verdict of first-degree murder, and that evidence which would sustain a verdict of first-degree murder must perforce sustain a finding of second-degree murder. We agree.
We have consistently held that the evidence must be viewed in the light most favorable to the jury's verdict and that the jury is presumed to have adopted that evidence which supports its verdict. People v. Vigil, Colo., 502 P.2d 418 (1972); Dodge v. People, 168 Colo. 531, 452 P.2d 759 (1969) and cases cited therein.
The defendant in this court concedes that the evidence of the People, if believed by the jury, was sufficient to support a conviction for first-degree murder. This means that the killing was willful, deliberate and premeditated with malice aforethought. However, we note that counsel for the defendant, at the close of the People's evidence, moved for a judgment of acquittal on the charge of first-degree murder, and at the same time suggesting 'that the case proceed on second-degree murder or any lesser included offenses.'
Second-degree murder does not require proof of premeditation, but it does require proof of malice, which, by statute, is defined as 'that deliberate intention to take away the life of a fellow creature.' Under our system of justice, assuming the sufficiency of the evidence to support first-degree murder, it is strictly within the province of the jury to evaluate the evidence and say by its verdict whether the evidence justifies a verdict of first or second-degree murder. See Bray v. People, 102 Colo. 199, 78 P.2d 366 (1938); Murphy v. People, 9 Colo. 435, 13 P. 528 (1886). It is illogical to say that the evidence is sufficient to support a conviction of first-degree murder but insufficient to support the lesser included offense of second-degree murder.
Defendant's second assignment of error, raised for the first time on appeal, is the failure of the court to instruct the jury on the issue of self-defense. We note that the record discloses that the defendant did not tender nor...
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People v. Steele
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