People v. Madson

Decision Date16 November 1981
Docket NumberNo. 80SA370,80SA370
Citation638 P.2d 18
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Alfred MADSON, Defendant-Appellant.
CourtColorado Supreme Court

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., David K. Rees, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Harvey M. Palefsky, Deputy State Public Defender, Denver, for defendant-appellant.

QUINN, Justice.

The defendant, Alfred Madson, appeals from his conviction of murder in the first degree after deliberation. Section 18-3-102(1)(a), C.R.S.1973 (1978 Repl.Vol. 8). 1 He challenges the conviction on several grounds including the sufficiency of evidence to support the jury verdict, the admission into evidence of several statements made by the victim to others under the state of mind exception to the hearsay rule, the claimed unconstitutionality of Crim.P. 41.1 which authorizes a judicial order for nontestimonial identification evidence on less than probable cause, and the constitutional propriety of admitting statements and other evidence which the police obtained from him during the initial phase of the investigation. 2 Although we conclude the charge of murder in the first degree was properly submitted to the jury, we reverse the defendant's conviction because of the admission of prejudicial hearsay evidence during the trial and we remand for a new trial. Since a new trial is required, we elect to address the suppression claims of the defendant in order to provide necessary direction to the trial court upon remand.

I. The District Court Proceedings

The defendant was charged with intentionally and after deliberation having caused the death of Geneva Josephine Van Hee on December 24, 1977. At approximately noon on December 26 Ms. Van Hee's body was discovered in the front passenger seat of her 1974 Chevrolet Vega automobile in a parking lot behind the Kit Carson Hotel in La Junta, Colorado. Her body was frozen and leaning toward the center console of the vehicle. A gunshot wound to the head was the obvious cause of death.

Investigating officers of the La Junta Police Department received information from Khip Turley, who was Ms. Van Hee's adult daughter, and Jessie Roberts, a close friend of the victim, that on the afternoon of December 24 the victim had been at Cap's Bar in the company of the defendant whom she had dated on several occasions. Cap's Bar, located on Second Street in La Junta, is diagonally across the street from the parking lot where the victim's body was found. Khip Turley informed the police that her mother was fearful of the defendant and had been threatened by him. Ms. Roberts told the officers that the defendant and the victim had an argument in the bar over their continued relationship and after the argument the victim told her that she was afraid of him.

Based on this information several officers went to the defendant's apartment in La Junta at approximately 5:30 p. m. on December 26. 3 After informing him that they were investigating the death of Ms. Van Hee, they asked to speak to him. The defendant invited the officers inside and, after being advised of his Miranda rights, 4 he expressed his willingness to talk to the officers. He told the officers that he left Cap's Bar at approximately 4:00 p. m. on December 24. Upon being questioned about a sweater allegedly worn by him on December 24, he stated that he had discarded it on December 21 after it had become soiled with grease from his automobile. While the officers were in the apartment he executed a written consent to search his apartment and automobile. 5

After completing the search the officers requested the defendant to accompany them to the station house for fingerprinting and further questioning. He agreed and at the police station he was questioned about the shoes he was wearing. He stated they were the same shoes he wore on December 24 and allowed the officers to examine them. In response to an officer's statement about the appearance of blood on one of the shoes, he replied, "If you say it is blood, it is blood." The police retained the shoes and the defendant then was permitted to leave the station house.

Subsequent police investigation disclosed that one Alfonso Whatley had been at Cap's Bar during the afternoon of December 24. Whatley was acquainted with Ms. Van Hee and also knew the defendant by sight. While at the bar he observed them arguing and later saw Ms. Van Hee driving her Vega automobile westbound on Second Street with the defendant riding as a passenger in the front seat. Still later, near dusk on December 24, Whatley saw the defendant alone in an alley near the parking lot across the street from Cap's Bar.

On December 30 the district attorney filed an application for nontestimonial identification evidence, supported by an affidavit relating the details of the investigation to date. 6 Pursuant to Crim.P. 41.1, the court issued an order authorizing the police to take the defendant into custody for the purpose of obtaining various forms of identification evidence, including a photograph and a handwriting exemplar. 7 The defendant was taken into custody on December 31, the court order was executed, and thereafter he was released. On January 3, 1978, Alfonso Whatley was again interviewed by police officers and he identified the photograph of the defendant as the man he observed on December 24 in Ms. Van Hee's automobile and later in the alley near the parking lot. 8 The defendant was arrested on January 6, 1978, and charged with murder in the first degree.

Prior to trial the defendant moved to suppress his statements made to the police, his shoes and any tests performed on them, and also the handwriting exemplars obtained pursuant to the court's order for nontestimonial identification evidence. The court denied the motion to suppress statements, concluding that the police fully advised the defendant of his Miranda rights and the defendant knowingly, intelligently, and voluntarily waived those rights. It granted the defendant's motion to suppress the shoes and the chemical tests conducted thereon because the defendant had not voluntarily consented to the retention of the shoes by the police. This court reversed the trial court's suppression order in People v. Madson, 196 Colo. 507, 586 P.2d 1338 (1978), holding that the defendant voluntarily consented to the search of his shoes and thereby waived any objections to their retention by the police. With respect to the handwriting exemplar, the court denied the motion to suppress on the basis that the requirements of Crim.P. 41.1 had been fully satisfied. In its suppression ruling the trial court did not determine whether the defendant's statements to the police on December 26 and the retention and testing of his shoes were the fruits of an illegal arrest or detention in violation of the Fourth Amendment, although this issue was raised and argued at the suppression hearing.

At trial several prosecution witnesses placed the defendant and the victim at Cap's Bar on the afternoon of December 24 and testified to seeing them arguing at that time. Jessie Roberts described how, while the defendant was still in the bar, she left with the victim at about 3:45 p. m. and walked with her a short distance towards the Vega automobile. There was evidence establishing that the defendant left the bar sometime later, returned to the bar about 4:35 p. m. and then left again with a male companion close to 5:00 p. m. Alfonso Whatley recounted his observations of the defendant and the victim riding in her vehicle later in the afternoon and then his subsequent sighting of the defendant near dusk in an alley next to the parking lot across from Cap's Bar.

The prosecution offered into evidence and the court admitted defendant's statements to the police on December 26. Also admitted into evidence was a letter found by Khip Turley in her mother's apartment shortly after her body was discovered. The letter, undated and unsigned, was identified by an expert witness as having been written by the defendant. Although not overtly threatening, it expressed hostility and jealousy toward the victim because of her ongoing relationships with other men. The following excerpts depict its overall tone:

"I dont know why I'm writing this, still being stupid I guess.

"If your game was to break my heart you did.

"The plain and simple truth works with me. If you only wanted me for a fill in you should have said so. Mondays Sams nite, tues. wed. Babes nite. thur fri Rays nite. Sat Sun maybe Als nite.

"Not let me hang around and become hooked and convinced that you cared some for me.

"You told me that you didnt want to get hurt, and didnt want to hurt me. Well the plain truth would have saved me from being hurt. You pulled all kinds of shadey tricks that I let slid as much as I could.

"You told me that you spent the day with Ray and told him it was all over. And would still be friends.

"It just makes sence that if you cared for me as you said there was no reason to be mad, if he had been put off.

"The one you care for comes first, before a put off the list friend.

"You also said that you had told your daughter you cared and might be getting serious with Al.

"So who do you care for? the dumb act took place in a bad spot, Because it was the only place he would stand still. He acted guilty of being caught.

"You confuse jealously with Loyality. Who were you loyal to? Not Al.

"Yet he has done everything possible to show and prove his loyalty to you.

"You prove loyality first then there is no room for jealously. As loyality is a trust.

"You plead guilty in public view. of how much I ment to you."

A forensic chemist for the Colorado Bureau of Investigation described chemical tests performed on the defendant's shoes and identified human blood on the instep and sole of the right...

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