People v. Moore

• Decision Date: 25 August 1994
• Docket Number: No. 93CA0003,93CA0003
• Citation: 902 P.2d 366
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kevin Jerome MOORE, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 366

902 P.2d 366

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kevin Jerome MOORE, Defendant-Appellant.

No. 93CA0003.

Colorado Court of Appeals,

Div. I.

Aug. 25, 1994.

Rehearing Denied Oct. 20, 1994.

Certiorari Granted Sept. 25, 1995.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Linda C. Michow, Sp. Asst. Atty. Gen., Denver, for plaintiff-appellee.

Chambers, Dansky and Hansen, P.C., Nathan Chambers, Denver, for defendant-appellant.

Opinion by Judge RULAND.

Defendant, Kevin Jerome Moore, appeals from the judgment of conviction entered upon a jury verdict finding him guilty of manslaughter. He also seeks review of the 12-year sentence imposed by the trial court. We affirm.

Prior to the homicide, defendant and a group of his high school friends were occupying a street corner. Some of the youths picked a fight with several soldiers, and defendant was observed throwing punches in that altercation. Later, he kicked the door of the car in which the soldiers left the scene. A witness quoted defendant as stating at this point, "Let's fight, let's fight."

Shortly thereafter, defendant, along with at least one of his schoolmates, began to kick nearby newspaper stands. Defendant and his schoolmates were visibly upset and angry.

Approximately 30 minutes later, the victim and his friend, also soldiers, were walking along the street where defendant and his group had congregated. The victim's friend heard one of the young men ask them, "What are you guys doin' walkin' on our block?" The victim then received a blow in the back of the head and fell to the ground.

The victim's friend attempted to aid the victim but could not because he was attacked by some of the youths including defendant. Eventually, he fought his way to the victim who was lying on the ground unconscious.

At least five of the youths including defendant were still kicking the victim. The friend tried to push the assailants away and pleaded with them to stop. However, one of the assailants kicked the friend, causing him to fall on top of the victim. The kicking blows by defendant and others continued against the victim and there was some evidence that defendant kicked the victim again after the others had stopped. A witness testified that she pleaded with defendant to stop and he replied: "So, I don't care. If you want to, you can be next."

Ultimately, the assailants dispersed. The victim died from blunt trauma to the head caused by hemorrhaging inside his skull.

Defendant was charged with extreme indifference murder in the first degree and murder in the second degree. The jury was also instructed on manslaughter and criminally negligent homicide as lesser included offenses. As noted, defendant was convicted of manslaughter.

I.

Relying on People v. Jefferson, 748 P.2d 1223 (Colo.1988), defendant first contends that the trial court committed reversible error by denying his motion for judgment of acquittal on the charge of extreme indifference murder because, he argues, there was insufficient evidence to support that charge. Specifically, defendant claims that the prosecution failed to prove "universal malice" because the "killing conduct" in this case was directed at a particular person, the victim.

In addition, and relying upon cases such as Tate v. People, 125 Colo. 527, 247 P.2d 665 (1952), defendant asserts that the error was not harmless because the jury's deliberations on the various lesser included charges including criminally negligent homicide likely produced a compromise verdict. We conclude that the trial court did not err in denying defendant's motion.

Section 18-3-102(1)(d), C.R.S. (1986 Repl.Vol. 8B) provides that a defendant commits first degree murder if:

Under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself and thereby causes the death of another.

With reference to the component of universal malice, the Jefferson court, quoting Longinotti v. People, 46 Colo. 173, 102 P. 165 (1909), stated:

By universal malice, we do not mean a malicious purpose to take the life of all persons. It is that depravity of the human heart, which determines to take life upon slight or insufficient provocation, without knowing or caring who may be the victim.

People v. Jefferson, supra, at 1228.

In discussing the constitutionality of the extreme indifference murder statute, our supreme court explained in Jefferson that:

The intent of the legislature has always been to prohibit extremely reckless conduct when accompanied by evidence of 'universal malice.'

People v. Jefferson, supra, at 1231.

By adding the words "universal malice" and "generally" to the statute in 1981, the Jefferson court perceived:

[A]n unmistakable indication of the legislative intent to ... limit the application of extreme indifference murder to situations in which the actor demonstrates an indifference to human life generally, as distinguished from indifference to, or willingness to take, a particular human life.

People v. Jefferson, supra, at 1232.

Thus, the court held that the offense is committed under the current statute "only if the killing conduct is of a type which is not directed against a particular person at all" and that the General Assembly intended to adopt different penalties for "knowing conduct of a type directed against a particular individual [second degree murder], and ... killing conduct ... which by its very nature evidences a willingness to take human life without regard to the victim." People v. Jefferson, supra, at 1233.

The Jefferson court indicated that a variety of factors may exhibit a legally sufficient degree of aggravated recklessness to support a finding of extreme indifference murder:

The nature, duration and intensity of the actor's culpable state of mind, his manner of killing, his relationship to the victim(s), and the presence or absence of mitigating factors--may all affect a jury's determination of whether the extreme indifference statute fits the facts of a particular case.

People v. Jefferson, supra, at 1234.

However, contrary to defendant's contention, we do not read People v. Jefferson, supra, as limiting the jury's consideration of this charge here to the evidence relative to the blows inflicted upon the victim by defendant immediately before the victim's death. Instead, under the circumstances of this case, we conclude that the jury could properly consider the conduct of defendant from and after the time when he and his companions took control of the street corner as bearing upon his state of mind, his reckless conduct, and as indicating his intent to take human life without provocation and without regard to who the victim might be.

As a result, and unlike in People v. Atkins, 844 P.2d 1196 (Colo.App.1992), here, there was evidence to support the charge. Specifically, the jury could have concluded that defendant had indiscriminately shoved, hit, kicked, and threatened one or more persons without provocation near the time of the victim's death, thus indicating excessively reckless conduct. Further, there was testimony that defendant had worked himself into a frenzy and that he did not know the victim or any of the other people he hit, kicked, or shoved, tending to establish his extreme indifference to the value of human life.

Viewing that evidence in a light most favorable to the prosecution, as we must, we conclude that the jury could well have found defendant guilty of the charge beyond a reasonable doubt. See People v. Gonzales, 666 P.2d 123 (Colo.1983); People v. Braxton, 807 P.2d 1214 (Colo.App.1990). Thus, the trial court did not err in denying defendant's motion.

II.

Defendant contends that the court made various errors regarding jury instructions. Again, we find no merit in any of his contentions.

A.

Defendant first asserts that the jury was wrongly instructed that second degree murder is a lesser included offense of extreme indifference murder. However, a division of this court held to the contrary in People v. Rodriguez, 888 P.2d 278 (Colo.App.1994). We view that case as dispositive of defendant's contention.

B.

Defendant further contends that the trial court committed reversible error when it failed to instruct the jury on the misdemeanor charge of third degree assault. While defendant concedes that the tendered instruction was submitted by trial counsel improperly as a lesser included offense, nevertheless he asserts that the instruction should have been given either as a lesser non-included offense or as a theory of the case instruction. We perceive no error in the court's ruling.

A court is required to give a lesser included offense instruction whenever there is a rational basis for the jury to acquit the defendant on the greater charge and convict him on the lesser offense. People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974). Likewise, in People v. Skinner, 825 P.2d 1045 (Colo.App.1991), a division of this court held that the same legal standard should be used to determine whether a lesser non-included instruction is appropriate.

Here, defendant proposed that the jury be given an instruction on third degree assault, which is defined as follows:

A person commits the crime of assault in the third degree if he knowingly or recklessly causes bodily injury to another person or with criminal negligence he causes bodily injury to another person by means of a deadly weapon.

Section 18-3-204, C.R.S. (1986 Repl.Vol. 8B).

We agree with the trial court's conclusion that there was no rational basis upon which the jury could convict defendant of assault on the victim and acquit him of manslaughter. This is because the victim died from the injuries inflicted by defendant and his companions, and there was evidence both that defendant kicked the...