People v. Lee, 80SA314
| Decision Date | 15 June 1981 |
| Docket Number | No. 80SA314,80SA314 |
| Citation | 630 P.2d 583 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Scott LEE, Defendant-Appellant. |
| Court | Colorado Supreme Court |
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Lynne Ford, Asst. Atty. Gen., Denver, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Norman R. Mueller, Deputy State Public Defender, Denver, for defendant-appellant.
The defendant, David Scott Lee (defendant), appeals his conviction based on a general jury verdict of guilty to murder in the first degree. His principal contention is that the statutory definition of extreme indifference murder, which was submitted to the jury for its consideration under the general verdict, is constitutionally infirm. We recently resolved the constitutionality of extreme indifference murder in People v. Marcy, Colo., 628 P.2d 69 (1981), and, on the basis of that decision, the defendant's conviction must be reversed. Although the defendant asserts several other claims in support of reversal, 1 we address only two of them. We conclude that the trial court's failure to suppress certain custodial statements made by the defendant to a police officer and prosecutorial misconduct occurring during the trial require a new trial. Accordingly we reverse and remand.
The defendant, who was then 15 years old, 2 was charged by indictment with murder in the first degree after deliberation 3 as well as extreme indifference murder. 4 The charges arose out of the shooting death of William Larmore on October 2, 1978, in the city of Colorado Springs. Larmore was struck in the abdomen by a bullet while walking home from work. Prior to trial the defendant moved to suppress several custodial statements made by him as well as all derivative evidence obtained therefrom. The evidence at the suppression hearing established the following sequence of events which are pertinent to this appeal.
On October 2, 1978, the defendant was arrested by Officer Reeve of the Colorado Springs Police Department on an outstanding bench warrant for an unrelated matter. 5 After his arrest the defendant was transported to the Colorado Springs police station for standard "booking" procedures. During this process Officer Reeve learned about the Larmore shooting and realized that he had arrested the defendant very close to the location where the shooting occurred. Reeve had a prior contact with the defendant and considered him "street- wise". Not having a particular suspect, Reeve decided to question the defendant about the shooting. At approximately 6:30 p. m. on the evening of October 2, he asked the defendant, without any warning of rights, what he knew of the shooting. The defendant replied that he was familiar with it but was reluctant to become involved. Reeve then told him that any truthful information he provided would inure to his benefit in the matter for which he had been arrested. Upon further questioning the defendant told Reeve that he played football that afternoon at Van Diest Park with four other boys and that one of the boys, "Bug", 6 had claimed responsibility for the shooting. The defendant described the location where the gun had been concealed. Reeve informed his superior of this information and, pursuant to instructions, made an unsuccessful search for the weapon. Detective Gurule, who was also investigating the shooting, had earlier spoken to a witness who had seen a young black male similar in description to the defendant carrying a rifle case in the area of the shooting. Detective Gurule requested and obtained from Reeve a photograph of the defendant for the stated purpose of conducting a photo-lineup with this witness.
Officer Reeve was instructed to reinterview the defendant, who had been transferred to a juvenile detention center, and to obtain more specific information about the shooting. No warning of rights preceded the second interrogation. The defendant identified by name the individuals with whom he had played football that afternoon. Additionally, he stated that "Bug" gave him some .22 caliber bullets to dispose of and he threw them away at a location near the park where they played ball. The defendant again expressed reluctance to provide information but Officer Reeve assured him he would assist him in gaining release from his present confinement.
After this interrogation Officer Reeve returned to the police station. He there learned from Detective Gurule that a witness had made a photographic identification of the defendant as the young black male who had been seen in the area of the shooting earlier that afternoon. On the following day, October 3, 1978, Officer Reeve drove to the park and found the discarded bullets which the defendant mentioned in his previous statement.
On the afternoon of October 3 Officer Reeve questioned the defendant for a third time without any warning of rights. The officer gave the defendant a high school year book to examine for the purpose of selecting the photograph of "Bug". The defendant was unable to make a photographic identification but still insisted that "Bug" had shot the victim and the weapon was hidden in the area previously described by the defendant during his first interrogation by Officer Reeve. At the suppression hearing Officer Reeve testified that during all three interrogations he considered the defendant as a witness having possible information of the shooting and, therefore, believed it unnecessary to advised him of his constitutional rights. For the same reason the officer did not arrange for the defendant's parent to be present during the interrogations. 7 After the third interrogation a police captain informed Reeve that one of the persons previously named by the defendant had implicated the defendant in the shooting. Officer Reeve did not thereafter interrogate the defendant.
Further police investigation centered primarily on interviewing the persons mentioned by the defendant in his statements to Officer Reeve. It was determined that on October 2 the defendant and his friend, Jimmy Sanchez, burglarized an apartment and obtained three guns, including a shotgun. They fired the guns in a nearby field. Sanchez then went to the home of his aunt Kathy Johnson where the defendant had been living. The defendant in the meantime went somewhere to hide the guns. Shortly after their separation the defendant arrived at the Johnson house with the weapons. He told Sanchez and some other friends who were there that he had just shot someone. The defendant and his friends then drove to Van Diest Park to play football. On the way the defendant admitted the shooting several times and at one point threw a handful of ammunition outside the car window. The police obtained a search warrant for Mrs. Johnson's home and recovered the weapon used in the shooting along with other rifles and ammunition.
The court denied the defendant's motion to suppress, ruling that the Miranda warnings were not required because Officer Reeve interrogated the defendant as a witness rather than as a suspect. For similar reasons the court held inapplicable to the defendant's interrogations section 19-2-102(3)(c)(I), C.R.S.1973 , which prohibits the admission of a child's statement unless the child's parent or an attorney acting in the child's behalf was present at such interrogation and the child and parent, if present, were advised of the child's constitutional rights. 8
The case proceeded to a jury trial and the defendant's statements to Officer Reeve were admitted into evidence, as well as the bullets recovered by Reeve and the weapon seized from Mrs. Johnson's home. The prosecution also called as witnesses several persons named by the defendant in the course of his statements to Reeve. During the direct examination of the victim's wife, Donna Larmore, the prosecutor, over the defendant's objection, asked her what happened to her after her husband was pronounced dead at the hospital. She responded "Well, I felt sick, and I went home and miscarriaged my child." The court ordered the question and answer stricken, instructed the jury to disregard this testimony, and denied the defendant's motion for a mistrial.
It was the defendant's theory that the victim was shot accidentally by a ricocheting bullet fired by him in a field near the route Mr. Larmore was walking on his way home. The court submitted to the jury alternative verdict forms of murder in the first degree after deliberation or by extreme indifference. The lesser offenses of second degree murder, 9 reckless manslaughter, 10 and criminally negligent homicide 11 were also submitted to the jury. The jury returned a general verdict of guilty to murder in the first degree resulting in a sentence of life imprisonment.
Since the defendant's conviction of first degree murder was by a general verdict after instructions on first degree murder after deliberation and first degree murder by extreme indifference, we are unable to determine which form of first degree murder is represented by the jury's verdict. Under these circumstances a constitutional infirmity in either form of first degree murder would require a reversal of the defendant's conviction. In People v. Marcy, supra, we recently held that the statutory definition of extreme indifference murder violates equal protection of the laws under Article II, Section 25, of the Colorado Constitution because that crime is not sufficiently distinguishable from second degree murder to warrant the substantial differential in penalty authorized by the statutory scheme. Accord, People v. Gurule, Colo., 628 P.2d 99 (1981); People v. Curtis, Colo., 627 P.2d 734 (1981). Accordingly, the defendant's conviction of murder in the first degree must be reversed.
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