People v. Moreland

• Decision Date: 31 May 1977
• Docket Number: No. 26536,26536
• Citation: 193 Colo. 237,567 P.2d 355
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gerald Bruce MORELAND, John Otto Hopper, and Joseph E. Valentine, Defendants-Appellants.
• Court: Colorado Supreme Court

Page 355

567 P.2d 355

193 Colo. 237

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gerald Bruce MORELAND, John Otto Hopper, and Joseph E Valentine, Defendants-Appellants.

No. 26536.

Supreme Court of Colorado, En Banc.

May 31, 1977.

Rehearing Denied Aug. 22, 1977.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Denver, Dan B. Fahrney, Chief Deputy Dist. Atty., Noland L. Brown, Dist. Atty., Golden, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Dorian E. Welch, Deputy State Public Defender, Denver, for defendants-appellants.

KELLEY, Justice.

The three codefendants involved appeal their convictions for first-degree felony murder, ¹ aggravated robbery, ² and conspiracy to commit aggravated robbery. ³ We affirm as to Hopper and Valentine and reverse as to Moreland.

I. Facts Relating to Offenses Charged

Moreland had been a neighbor of Jack Sudders (the murder victim) and his wife Vera. Mrs. Sudders testified to the following events. On the pretext of automobile trouble, the defendants came to the Sudders' residence and asked to use the phone. After using the phone, they left but returned ten minutes later. Defendant Moreland told Mrs. Sudders that the police had threatened to tow his car unless he moved it. Upon Moreland's request, the Sudders' son George agreed to drive Moreland downtown, ostensibly to his brother's home, in return for a small payment. Defendants Valentine and Hopper then left, followed by George Sudders and Moreland.

Ten minutes after their second departure, Valentine and Hopper returned to the Sudders' residence. This time they stated that the police had moved their car and that they would wait for Moreland since he would return to the residence when he discovered that the car had been moved. Mrs. Sudders gave the two defendants coffee. As she reached for a towel to mop up the coffee spilled by Valentine, Valentine pushed her against the refrigerator, put a knife to her throat, and demanded guns and money. Valentine then instructed Hopper, who was standing close by, to look for guns. Hopper left the kitchen at which time Valentine removed Mrs. Sudders' bracelets and wedding ring. When he failed to find any guns, Hopper returned to the kitchen. Valentine renewed his demands as to the location of any guns and threatened to cut Mrs. Sudders' throat if she did not tell him.

Valentine then grabbed Mrs. Sudders by the wrist and said, "Let's go to the bedroom." At this point, Mrs. Sudders feigned a heart attack and slumped down. After Hopper had allowed her to smell some ammonia, Valentine continued to drag her toward the bedroom. During this episode, Mr. Sudders, who had been sleeping in the bedroom, awoke and told Valentine that his wife was having a heart attack and to leave her alone.

Mrs. Sudders continued to feign a heart attack and finally managed to escape out the front door. She testified that she ran from the house. She saw no one follow her. Later, while she was pounding on a neighbor's window for help, she heard a bang that may have been a gunshot.

The police and fire departments, who had responded to the scene by the time Mrs. Sudders reentered her home, found Mr. Sudders lying in the living room with a cocked revolver pointed at his head and a gunshot wound above his left knee. They administered first aid to Sudders, who had been bleeding profusely before he died.

The evidence at trial was that there was a trail of blood from the front porch into the living room. Traces of gunpowder were found on Mr. Sudders' hand, and more traces were found on his clothing in the groin area. In addition, Mr. Sudders was found clothed in pants and a sport shirt while he had been wearing only his underwear when Mrs. Sudders escaped. Finally, the evidence showed that the area between the Sudders' home and the neighboring home where Mrs. Sudders went for help was poorly lighted, and the line of vision was obscured by trees.

II. Judgment of Acquittal

The defendants first argue that the trial court erred in not granting the defendants' motions for judgments of acquittal to the charge of felony murder since there was no proof beyond a reasonable doubt that Jack Sudders' death was caused by the defendants.

The test adopted by this court for the propriety of a trial judge's denial of a motion for acquittal is

"Whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt."

People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973) (emphasis added). We have reviewed the record in light of the standard enunciated in Bennett and hold that the trial judge did not err in denying the motions for acquittal. See People v. Chavez, 182 Colo. 216, 511 P.2d 883 (1973).

III. Jury Instructions

The defendants next contend that the court misstated the law of felony murder in its instructions to the jury. In particular, they argue that the language contained in instruction 16 to the effect that the defendants could be found guilty "even if one or more of the defendants did not actually commit the act that caused said death" ⁴ is contrary to 1971 Perm.Supp C.R.S.1963, 40-3-102(1)(b) ⁵ as it has been interpreted by this court in Alvarez v. District Court, 186 Colo. 37, 525 P.2d 1131 (1974) (legislature intended to limit felony murder to deaths directly caused by a participant in the felony transaction).

In order to determine whether instruction 16 was proper, however, we must consider the instructions as a whole. U. S. v. Beitscher, 467 F.2d 269 (10th Cir. 1972); People v. Sexton, Colo., 555 P.2d 1151 (1976); People v. Manier, 184 Colo. 44, 518 P.2d 811 (1974); McCune v. People, 179 Colo. 262, 499 P.2d 1184 (1972).

Instruction 15 delineates the necessary elements of felony murder in language paralleling that of the statute. ⁶ In particular, items numbers one, three and four of the instruction require the jury to find that one of the defendants caused the death of the victim in the course of the robbery or, in immediate flight therefrom, in order to convict. Moreover, paragraph one of instruction 16 ⁷ advises the jury that in order to find the defendants guilty, the jury must find that the victim died from a gun shot wound "inflicted by one or more of the defendants" (emphasis added).

Instruction 15 and the first paragraph of instruction 16 set forth the requirement that one of the participants in the felony inflicted the fatal wound. Alvarez v. District Court, 186 Colo. 37, 525 P.2d 1131 (1974). The second paragraph of instruction 16 ⁸ in effect informs the jury that even if one or both of the remaining defendants did not actually inflict the wound, all the participants in the felony may be found guilty. ⁹

The defendants' contention that instructions 24 ¹⁰ and 25 ¹¹ misstate the law of felony murder because of the "proximate cause" language is without merit. The defendants themselves submitted instruction 24 after the court refused another instruction because of the lack of an evidentiary basis for it. Instruction 25 is a standard definition of proximate cause, given to the jury merely to clarify the language of the defendants' tendered instruction 24. The defendants cannot now assert prejudice from the language of their own instruction.

Defendant Hopper alleges error in the trial court's refusal to give his tendered instruction 28. ¹² We find no error, however, since there is no evidence in the record to support the defendant's theory that he left the premises and had no knowledge that Valentine was armed with a dangerous weapon. ¹³ People v. Young, Colo., 555 P.2d 1160 (1976); Gould v. People, 167 Colo. 113, 445 P.2d 580 (1968).

IV. Erroneous Admission of Evidence

The defendants' final contention of error is that the trial court erred in admitting into evidence vials of blood, as well as photographs which depicted the death scene. They argue that, since two doctors testified that the decedent bled to death, the photographs had no probative value, were unnecessarily gruesome, and only served to inflame the jury.

We have previously held that photographs are not rendered inadmissible merely because they reveal shocking details of the crime. People v. Steele, Colo., 563 P.2d 6 (announced April 18, 1977), Hampton v. People, 171 Colo. 153, 465 P.2d 394 (1970); Monge v. People, 158 Colo. 224, 406 P.2d 674 (1965). In People v. Hosier, 186 Colo. 116, 525 P.2d 1161 (1974), we held that the trial court has discretion to determine whether a particular photograph is unnecessarily gruesome and inflammatory. See also People v. Steele, supra. As we have frequently stated, photographs may be used to graphically portray the scene of a crime, the appearance and condition of the deceased, and any other matters which are competent for a witness to describe in words. People v. Steele, supra; People v. Hosier, supra; Hinton v. People, 169 Colo. 545, 458 P.2d 611 (1969), cert. denied, 397 U.S. 1047, 90 S.Ct. 1375, 25 L.Ed.2d 659 (1970). Absent the showing of an abuse of discretion, the trial court's ruling will not be disturbed on appeal. People v. Steele, supra; People v. Jones, 184 Colo. 96, 518 P.2d 819 (1974); Hinton v. People, supra.

In the present case, while many of the photos depict blood on the floor of the decedent's home, they show other evidence, including the weapon used and the general disarray of the scene of the crime. We find no abuse of discretion in the trial court's rulings.

The same standards for review apply to the admission of the vials of blood. Again, we find no abuse of discretion in the trial court's ruling.

V. Ineffective Assistance of Counsel

Defendant Moreland contends that his sixth amendment right to effective assistance of co...