People v. Lewis
| Decision Date | 12 October 1989 |
| Docket Number | No. 88CA1380,88CA1380 |
| Citation | 791 P.2d 1152 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Alwyn Lee LEWIS, Defendant-Appellee. . IV |
| Court | Colorado Court of Appeals |
James F. Smith, Dist. Atty., and Michael J. Milne, Sr. Deputy Dist. Atty., Brighton, for plaintiff-appellant.
David F. Vela, Colorado State Public Defender, and Jonathan S. Willett, Deputy State Public Defender, Denver, for defendant-appellee.
Opinion by Judge TURSI.
Pursuant to § 16-12-102(1), C.R.S. (1986 Repl.Vol. 8A), and C.A.R. 4(b)(2), C.R.S. (1988 Cum.Supp.), the People appeal the order of the trial court entered after preliminary hearing in which it dismissed a count of felony murder that was predicated upon an underlying crime of burglary. We disapprove of the order dismissing the count of felony murder.
Defendant had been charged with first degree murder after deliberation, first degree murder during the commission or attempted commission of burglary, criminal attempt to commit first degree murder, second degree assault, first degree burglary with intent to commit the crimes of murder and assault, and mandatory sentence for violent crime. Defendant was ultimately convicted as charged, except for the felony murder charge, the dismissal of which is here at issue.
At the preliminary hearing, the People presented evidence that defendant and some companions, angered over a marijuana deal, went to the apartment of a third party with intent to find and kill one of the participants in their marijuana transaction. When the door was opened, the defendant shot and killed the person who opened the door, and he then stepped into the apartment, shooting and wounding a second person. Neither of the victims was the party being sought.
At the conclusion of the hearing, the trial court bound the defendant over on all grounds except the felony murder charge, and it amended the first degree burglary charge to delete the reference to murder and to the murder victim. The trial court ruled that the burglary was committed after the victim's death and that, therefore, it could not be the basis for a charge of felony murder. Further, the court concluded that the underlying crime of assault alleged in the burglary charge could not support a felony murder charge. The People urge that we disapprove of these rulings. We do.
Whether a defendant may be charged with felony murder based upon a burglary committed with intent to assault or to murder is a matter of first impression in Colorado. The People and the defendant agree that a majority of jurisdictions hold that a burglary charge premised on an underlying crime of assault may sustain a finding of felony murder. See People v. Miller, 32 N.Y.2d 157, 344 N.Y.S.2d 342, 297 N.E.2d 85 (1973); Blango v. United States, 373 A.2d 885 (D.C.App.1977); State v. Reams, 292 Or. 1, 636 P.2d 913 (1981). Defendant, however, would have us follow the jurisdictions which have held that when assault is not a discrete crime named in the felony murder statute, see § 18-3-102(1)(b), C.R.S. (1986 Repl.Vol. 8B), it cannot be the crime necessary to sustain a count of felony murder by burglary. See People v. Wilson, 1 Cal.3d 431, 82 Cal.Rptr. 494, 462 P.2d 22 (1969). We decline to do so.
Section 18-3-102(1)(b) provides that a person commits the crime of murder in the first degree if, "[a]cting either alone or with one or more persons he commits or attempts to commit arson, robbery, burglary, kidnapping, sexual assault ... and, in the course of or in the furtherance of the crime that he is committing or attempting to commit ... the death of a person, other than one of the participants, is caused by anyone...."
First degree burglary is defined in § 18-4-202(1), C.R.S. (1986 Repl.Vol. 8B) as: "A person commits first degree burglary if he knowingly enters ... [an] occupied structure within intent to commit therein a crime ... against a person ... and if in effecting entry or while in the ... occupied structure ... he or another participant in the crime assaults or menaces any person...."
Giving the statutes involved an interpretation consistent with their plain language we agree with the People that, inasmuch as both murder and assault are crimes which may underlie a felony burglary, there is no logic or reason to preclude a felony murder charge from being based upon a burglary charge that, in turn, is premised upon either an intent to assault or an intent to murder. See State v. Reams, supra (...
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People v. Farley
...fn. 3 (Miller)), and subsequently was rejected by numerous other jurisdictions, rendering it a minority rule. (See People v. Lewis (Colo.Ct.App.1989) 791 P.2d 1152, 1153 [court observed a "majority of jurisdictions hold that a burglary charge premised on an underlying crime of assault may s......
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