People v. Lowe

Decision Date28 February 1983
Docket NumberNo. 82SA372,82SA372
Citation660 P.2d 1261
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James A. LOWE, Defendant-Appellant.
CourtColorado Supreme Court

J.D. MacFarlane, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Valerie McNevin Petersen, Asst. Atty. Gen., Enforcement Section, Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender Deborah S. Waldbaum, Deputy State Public Defender, Denver, for defendant-appellant.


The defendant appeals his convictions on two counts of first-degree murder. The defendant urges two grounds for reversal. First, the defendant argues that the trial court improperly admitted Exhibit Q-1 into evidence. Second, he contends that his convictions for first-degree murder must be reversed because a person can be convicted of only one homicide offense where there is but one victim. We affirm the trial court's evidentiary ruling and remand the judgments of conviction for further proceedings consistent with this opinion.

On June 26, 1979, eleven-year-old Michelle Conley was murdered at the Pinehurst Country Club (Club). The defendant, a maintenance man employed at the Club, was arrested at his residence the following morning. On June 29, 1979, he was charged with first-degree murder, i.e., murder after deliberation, 1 and first-degree kidnapping. 2 At the preliminary hearing in the county court, the defendant was bound over to the district court for trial only on the murder charge.

The defendant filed a motion to suppress evidence. The district court suppressed all statements made by the defendant and certain items of physical evidence. The People filed an interlocutory appeal to this court. We affirmed the trial court. See People v. Lowe, 200 Colo. 470, 616 P.2d 118 (1980).

Following the remand of the case to the district court, the People filed a motion to add a second count to the information charging the defendant with first-degree murder, i.e., felony murder by reason of sexual assault on a child. 3 The motion was granted over the defendant's objection. The district court held a preliminary hearing on count two. The court found there was probable cause to believe the defendant committed the crime charged.

The case was tried to a jury. The following evidence is relevant to our resolution of this appeal: Michelle was swimming at the Club. She left the pool area to go to the women's locker room. The defendant took Michelle into a small electrical room behind the engineer's office located in the basement of the Club where he forced her to perform fellatio. Two weeks prior to the murder, orthodontic braces had been placed on Michelle's teeth. When the braces cut his penis, the defendant became angry and killed the child. The parties stipulated that the cause of death was trauma to the head due to a blunt instrument. The evidence also indicated the defendant attempted to kill Michelle by strangling and/or suffocating her. The defendant wrote incriminating letters, including Exhibit Q-1, to fellow inmates at the Denver County Jail. The letters were admitted into evidence.

The jury returned its verdict finding the defendant guilty of both murder after deliberation and felony murder. The trial court entered a judgment of conviction on each count. The defendant was sentenced to the Department of Corrections for life.


The defendant's first argument is that the trial court erred in admitting Exhibit Q-1 because the document was irrelevant and prejudicial. 4 At trial, defense counsel objected to the introduction of paragraph 1 of the exhibit on the ground it was prejudicial. The alleged error was not specifically raised in the defendant's motion for a new trial. However, we elect to resolve the issue on its merits because of the substantial question presented. On appeal, the defendant claims the exhibit was not relevant and that its prejudicial contents outweighed any probative value. 5 Therefore, we must decide the issue under C.R.E. 401 and 403.


Relevancy is the threshold standard which all tendered evidence must meet. Evidence is relevant when it renders the claimed inference more probable than it would be without it. People v. Madson, 638 P.2d 18 (Colo.1981). Relevant evidence is defined in C.R.E. 401 as:

"[E]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

Rule 401 is silent as to what factors the trial court must consider in deciding whether the proffered evidence meets the requisite standard of probability. "This silence emphasizes that the Federal Rules reject Wigmore's theory that legal precedents determine relevancy, in favor of Thayer's view that 'the law furnishes no test of relevancy.' " 1 Weinstein & Berger, Weinstein's Evidence p 401 at 401-42 (1982) (footnotes omitted). Therefore, a trial judge has broad discretion in determining whether the tendered evidence meets the probability standard. However, this discretion is not unlimited. First, C.R.E. 102 provides that:

"These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined."

Second, even though the drafters of Rule 401 endorsed Thayer's view that relevancy issues must be decided on a case by case basis, it is obvious that particular categories of evidentiary facts will appear in cases on a recurring basis. Legal precedents will be developed by appellate courts for the guidance of trial courts in the exercising of their discretion. Appellate review of relevancy decisions is limited because we must assume the maximum probative value that a reasonable fact finder might give the evidence and the minimum unfair prejudice to be reasonably expected. 1 Weinstein & Berger, Weinstein's Evidence p 401 at 401-10 (1982).

The determination of whether proffered evidence is relevant is within the sound discretion of the trial court. If the evidence has probative value in determining the central issue in dispute, the trial court's decision will not be reversed unless it is shown that there was an abuse of discretion. See Tucker v. Lower, 200 Kan. 1, 434 P.2d 320 (1967). In addition, both the Federal and Colorado Rules of Evidence strongly favor the admission of evidence. See United States v. Dennis, 625 F.2d 782 (8th Cir.1980).


We now review the trial court's admission of Exhibit Q-1. The first issue to be resolved is what are the facts of consequence in the case. "Whether or not a fact is of consequence is determined not by the rules of evidence but by substantive law." 1 Weinstein & Berger, Weinstein's Evidence p 401 at 401-16 (1982). Under the pertinent provisions of section 18-3-102, C.R.S.1973 (1978 Repl.Vol. 8), the facts of consequence in the prosecution of murder after deliberation and felony murder are (1) whether the defendant, after deliberation, and with specific intent, caused the death of another person; and (2) whether the defendant in the course of committing or attempting to commit sexual assault on a child caused the death of another person.

Paragraph 2 of Exhibit Q-1 is properly characterized as an admission as opposed to a confession. An admission is "an acknowledgement by the accused of certain facts which tend, together with other facts, to establish his guilt." 3 Wharton, Criminal Evidence § 694 (13th ed. 1973). An admission is also defined as "any voluntary statement by one accused of ... crime, relating to some particular fact or circumstance and not the whole charge, which indicates a consciousness of guilt and tends to connect him with the crime charged and to incriminate him." 2 Underhill, Criminal Evidence § 381 (5th ed. 1956).

Under the rubric "consciousness of guilt," evidence of a party's behavior is relevant to show, through a series of reasonable inferences, that the accused committed the crime charged. At least two permissible inferences may be drawn from paragraph 2. First, the defendant was conscious of the fact that he had been charged with first-degree murder. Second, the permissible inference which a jury could draw from the statement "your [sic] just as weak as that little girl!" is that the defendant killed Michelle Conley, with whose murder he was charged. Accordingly, paragraph 2 of Exhibit Q-1 was relevant and was properly admitted into evidence.

Threats against a witness are also admissible to show consciousness of guilt. See, e.g., United States v. Gonsalves, 668 F.2d 73 (1st Cir.1982), cert. denied, 456 U.S. 909, 102 S.Ct. 1759, 72 L.Ed.2d 168 (1982); United States v. Monahan, 633 F.2d 984 (1st Cir.1980); United States v. Flick, 516 F.2d 489 (7th Cir.1975), cert. denied, 423 U.S. 931, 96 S.Ct. 282, 46 L.Ed.2d 260 (1975); United States ex rel. Hill v. Pinto, 394 F.2d 470 (3d Cir.1968); State v. Valenzuela, 109 Ariz. 1, 503 P.2d 949 (1972). The problem presented here, however, is that the threats were made by the defendant against a party who was not a witness in the case. That distinction is not determinative of the issue because the circumstances tend to show the defendant's consciousness of guilt on the charge of killing the child.

C.R.E. 403 establishes a balancing test. The trial court may exclude relevant evidence only "if its probative value is substantially outweighed by the danger of unfair prejudice." (Emphasis added.)

The rule of completeness provides a satisfactory basis for the admission of the entire document. In McRae v. People, 131 Colo. 305, 281 P.2d 153 (1955), we held:

"[I]f a statement made by the defendant in a criminal case is admissible in evidence as an admission or declaration, it is admissible as an entire statement, including the parts thereof...

To continue reading

Request your trial
198 cases
  • Dunlap v. People
    • United States
    • Colorado Supreme Court
    • May 14, 2007
    ...13 violated the rule that a defendant can only be convicted of one count of first-degree murder for a single victim.34 See People v. Lowe, 660 P.2d 1261 (Colo.1983); People v. Bartowsheski, 661 P.2d 235 (Colo. 1983). For each of the four murder victims, the jury found Dunlap guilty of both ......
  • People v. Harlan, No. 95SA298.
    • United States
    • Colorado Supreme Court
    • March 27, 2000
    ...erred in instructing the jury that Harlan was charged with two separate and distinct crimes of first degree murder. In People v. Lowe, 660 P.2d 1261, 1269 (Colo.1983), we held that first degree murder after deliberation and first-degree felony murder were not separate offenses, but were alt......
  • People v. Whitmer
    • United States
    • California Supreme Court
    • July 24, 2014
    ...293 ; U.S. v. Rosenbarger (6th Cir.1976) 536 F.2d 715, 721 ; Townsend v. State (Ala.Crim.App.2001) 823 So.2d 717, 723 ; People v. Lowe (Colo.1983) 660 P.2d 1261, 1269, overruled on other grounds in Callis v. People (Colo.1984) 692 P.2d 1045, 1050, fn. 7 ; State v. Rawls (1985) 198 Conn. 111......
  • Callis v. People
    • United States
    • Colorado Supreme Court
    • December 10, 1984
    ...was under arrest charged with an offense, and the rule is the same in respect to written or oral confessions. Accord, e.g., People v. Lowe, 660 P.2d 1261 (Colo.1983); People v. Mann, 646 P.2d 352 (Colo.1982); Torres v. People, 149 Colo. 314, 369 P.2d 80 (1962); Wooley v. People, 148 Colo. 3......
  • Request a trial to view additional results
5 books & journal articles
    • United States
    • Colorado Bar Association Colorado Rules and C.R.S. of Evidence Annotated (CBA)
    • Invalid date
    ...fellow prisoner, is admissible to show a consciousness of guilt despite the prejudicial aspects of the included threat. People v. Lowe, 660 P.2d 1261 (Colo. 1983). Defendant's statement to polygraph examiner was admissible because it was relevant to ultimate issue in case and prejudicial im......
    • United States
    • Colorado Bar Association Colorado Rules and C.R.S. of Evidence Annotated (CBA)
    • Invalid date
    ...652 P.2d 588 (Colo. 1982); People v. Lucero, 654 P.2d 835 (Colo. 1982); People v. Fisher, 657 P.2d 922 (Colo. 1983); People v. Lowe, 660 P.2d 1261 (Colo. 1983).II. SELF-INCRIMINATION. Law reviews. For note, "Involuntary Confessions — Fourth Stage in Colorado", see 31 Dicta 133 (1954). For c......
    • United States
    • Colorado Bar Association Colorado Rules and C.R.S. of Evidence Annotated (CBA)
    • Invalid date
    ...43 (Colo. App. 1981); People v. Gallegos, 644 P.2d 920 (Colo. 1982); People v. District Court, 652 P.2d 582 (Colo. 1982); People v. Lowe, 660 P.2d 1261 (Colo. 1983); People v. McGhee, 677 P.2d 419 (Colo. App. 1983); People v. Hardy, 677 P.2d 429 (Colo. App. 1983); Danburg v. Realties, Inc.,......
    • United States
    • Colorado Bar Association Colorado Rules and C.R.S. of Evidence Annotated (CBA)
    • Invalid date dispute, the trial court's decision will not be reversed unless it is shown that there was an abuse of discretion. People v. Lowe, 660 P.2d 1261 (Colo. 1983); People v. Schwartz, 678 P.2d 1000 (Colo. 1984); People v. McKeehan, 732 P.2d 1238 (Colo. App. 1986), cert. denied, 753 P.2d 243 (......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT