People v. Medina

• Citation: 260 P.3d 42
• Decision Date: 05 August 2010
• Docket Number: No. 05CA1605.,05CA1605.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee,v.Alarico MEDINA, Defendant–Appellant.
• Court: Court of Appeals of Colorado

260 P.3d 42

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Alarico MEDINA, Defendant–Appellant.

No. 05CA1605.

Colorado Court of Appeals, Div. VII.

Aug. 5, 2010.

John W. Suthers, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General, Denver, CO, for Plaintiff–Appellee.Samler & Whitson, P.C., Eric A. Samler, Hollis A. Whitson, Denver, CO, for Defendant–Appellant.Opinion by Judge CONNELLY.

Defendant, Alarico Medina, was convicted after a jury trial of felony murder and sentenced to life imprisonment. The jury also found defendant guilty of manslaughter and burglary, but the court merged those counts into the felony murder conviction. Finally, defendant was convicted of criminal trespass. We affirm.

I. Background

The homicide occurred after defendant's girlfriend asked defendant to beat up the victim because she mistakenly believed the victim had raped her friend. Four men, including defendant, drove to the victim's apartment complex. Defendant and one of the men, who later testified against defendant in return for reduced charges, exited the car and went inside the complex.

Defendant knocked on the apartment door, and the victim answered. Upon identifying himself by name, the victim was shot point blank and killed.

There was no dispute that defendant and the other man were both present, and that one of them had shot the victim. There was also evidence supporting a jury finding that defendant or the other man had entered the apartment with intent to assault the victim. The identity of the shooter was hotly contested.

The other man testified that defendant shot the victim; defendant testified that the other man was the shooter. The only independent witness to the murder could not identify who shot the victim, though some aspects of his testimony lent support to defendant's claim that the other man was the shooter.

The jury's guilty verdict on the felony murder count found specifically that defendant had committed a completed burglary. Its separate burglary verdicts found defendant guilty of first degree burglary because he or a participant had committed assault and menacing and had been armed with a deadly weapon.

It appears, however, the jury was not convinced defendant was the shooter. This is suggested by the jury's (1) finding that defendant did not possess a weapon, (2) note asking if defendant had to be the shooter to be convicted of murder, and (3) return of a manslaughter (not intentional murder) verdict.

II. Discussion

A. Felony Murder Predicated on Burglary

Defendant argues that a felony murder conviction cannot stand where the predicate felony is a burglary committed for purpose of assault. This is an issue of statutory construction, see People v. Lewis, 791 P.2d 1152, 1153–54 (Colo.App.1989), subject to de novo review. People v. Madden, 111 P.3d 452, 457 (Colo.2005). Because we conclude there was no error, we need not resolve the parties' debate over whether this argument was sufficiently preserved or should be reviewed only for plain error.

The felony murder statute is unequivocal. It applies where a defendant “commits or attempts to commit ... burglary” (or other predicate crimes) and anyone causes death of a nonparticipant “in the course of or in furtherance of” (or in immediate flight from) that crime. § 18–3–102(1)(b), C.R.S.2009. And Colorado burglary statutes, covering unlawful entries of buildings or occupied structures “with intent to commit therein a crime, other than trespass ..., against another person or property,” §§ 18–4–202(1) & 18–4–203(1), C.R.S.2009, plainly include the intended crime of assault. See People v. Delci, 109 P.3d 1035, 1037 (Colo.App.2004).

Consistent with this unequivocal statutory language, prior divisions of this court have upheld felony murder convictions based on the predicate offense of burglary with intent to commit assault. Lewis, 791 P.2d at 1153–54 (Colo.App.1989), followed in People v. Ager, 928 P.2d 784, 789 (Colo.App.1996). Though defendant attempts to raise factual distinctions between those cases and this one, Lewis and Ager were decided based on the relevant statutes and not on their particular facts.

Defendant asks us to reject the holdings in Lewis and Ager, in favor of purportedly contrary decisions of other state courts. We are convinced, however, not only that Lewis and Ager were decided correctly but also that their result is consistent with decisions of other state courts interpreting similar felony murder statutes.

Several out-of-state cases cited by defendant stand simply for the proposition that an assault or battery cannot be a felony murder predicate. See, e.g., Bowman v. State, 162 Wash.2d 325, 172 P.3d 681, 683 (2007); State v. Heemstra, 721 N.W.2d 549, 557–58 (Iowa 2006); People v. Morgan, 197 Ill.2d 404, 259 Ill.Dec. 405, 758 N.E.2d 813, 836–38 (2001). These cases track the reasoning of then Chief Judge Cardozo: an assault that is not “independent of the homicide” must “merge” into the homicide; otherwise, “every homicide, not justifiable or excusable, would occur in the commission of a felony, with the result that intent to kill and deliberation and premeditation would never be essential.” People v. Moran, 246 N.Y. 100, 158 N.E. 35, 36 (1927).

Here, in contrast, the assault was not—and under Colorado's statute, could not have been—a felony murder predicate. See § 18–3–102(1)(b) (felony murder predicates are arson, robbery, burglary, kidnapping, some sexual assaults, and escape). The predicate crime was burglary, not assault. While proof of an assault can raise burglary from second to first degree, compare § 18–4–203(1) with § 18–4–202(1), the degree of burglary makes no difference here because second degree burglary is also a felony murder predicate. See People v. White, 64 P.3d 864, 876 (Colo.App.2002).

Making all burglaries felony murder predicates does not obliterate distinctions among homicides. While homicide inevitably involves an assault, not all homicides involve burglaries. And burglaries are Article 4 “Offenses Against Property” that involve conduct and harm distinct from any assault or resulting death. The felony murder doctrine is designed to heighten penalties where death results during inherently dangerous felonies. See Auman v. People, 109 P.3d 647, 655 (Colo.2005); 2 Wayne R. LaFave, Substantive Criminal Law § 14.5(a), at 446 (2d ed.2003). Excluding assault-driven burglaries—categorically, the most dangerous burglaries—would disserve this purpose.

Defendant, by looking past the burglary to the intended assault, essentially urges “a two-step version of the merger doctrine.” State v. Makthepharak, 276 Kan. 563, 78 P.3d 412, 418 (2003). Most courts, consistent with Lewis and Ager, reject that approach. State v. Moore, 222 Ariz. 1, 213 P.3d 150, 163 (2009); Makthepharak, 78 P.3d at 418; State v. Contreras, 118 Nev. 332, 46 P.3d 661, 664 (2002); State v. Dasa, 234 Or.App. 219, 227 P.3d 228, 239 (2010); see also United States v. Loonsfoot, 905 F.2d 116, 118 (6th Cir.1990) (citing cases); LaFave, supra, Substantive Criminal Law § 14.5(g), at 470–71 & n. 28 (citing cases following this “majority view”). Compare Commonwealth v. Claudio, 418 Mass. 103, 634 N.E.2d 902, 905–06 (1994) (following “majority, ... better reasoned view” that burglary with intent to assault can be felony murder predicate), with Commonwealth v. Gunter, 427 Mass. 259, 692 N.E.2d 515, 525–27 (1998) (crime of armed assault within dwelling normally not sufficiently independent of resulting death to be a felony murder predicate).

With one exception, the courts not allowing felony murder to be based on assault-motivated burglaries construed differently phrased statutes. See Williams v. State, 818 A.2d 906, 912–13 (Del.2002), superseded by statute as noted in Comer v. State, 977 A.2d 334, 340 (Del.2009); Sellers v. State, 295 Ark. 489, 749 S.W.2d 669, 670 (1988). Those statutes required that death occur both in the course of and in furtherance of the burglary. Williams, 818 A.2d at 913 (“the murder, although ‘in the course of’ the burglary, was not carried out ‘in furtherance of’ it”); Sellers, 749 S.W.2d at 671 (similar); cf. People v. Cahill, 2 N.Y.3d 14, 777 N.Y.S.2d 332, 809 N.E.2d 561, 587–90 (2003) (relying on conjunctive statutory language to hold that burglary committed with intent to murder cannot elevate intentional murder to capital murder). In contrast, our statute is phrased disjunctively to cover deaths occurring “in the course of or in furtherance of” a burglary. § 18–3–102(1)(b) (emphasis added).

California was the one exception. For four decades after engrafting an extra-statutory limit, see People v. Wilson, 1 Cal.3d 431, 82 Cal.Rptr. 494, 462 P.2d 22 (1969), its courts struggled to decide which burglaries could be felony murder predicates. But last year, citing the “analytical anomalies” this had spawned, the California Supreme Court overruled Wilson and held the felony murder statute covered all burglaries. People v. Farley, 46 Cal.4th 1053, 96 Cal.Rptr.3d 191, 210 P.3d 361, 407–11 (2009). Its ruling, like ours, was based on the felony murder statute's unequivocal language making no distinctions among burglaries. Id.

B. Double Jeopardy

Defendant argues that it violated double jeopardy to use the same act (breaking the threshold of the apartment to shoot the victim) to prove both the burglary and the felony murder. It is not clear that a single act sufficed to prove both crimes: there had to be both a breaking and a shooting. In any event, where separate statutory crimes are involved, double jeopardy analysis looks to “the statutory elements of the offenses in question, not the evidence presented at trial.” People v. Leske, 957 P.2d 1030, 1036 (Colo.1998) (applying “statutory elements test” of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). Defendant misplaces reliance on Woellhaf v. People, 105 P.3d 209 (Colo.2005), which involved the appropriate “unit of pro...