People v. Morgan

• Decision Date: 23 November 1981
• Docket Number: No. 80SA272,80SA272
• Citation: 637 P.2d 338
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dana Eugene MORGAN, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 338

637 P.2d 338

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dana Eugene MORGAN, Defendant-Appellant.

No. 80SA272.

Supreme Court of Colorado, En Banc.

Nov. 23, 1981.

Rehearing Denied Dec. 14, 1981.

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

Lee Jay Belstock, Denver, for defendant-appellant.

ROVIRA, Justice.

The defendant, Dana Morgan, appeals his conviction for murder in the second degree, ¹ first-degree felony murder, ² and second-degree kidnapping of Stuart Smollin; ³ first-degree burglary, ⁴ aggravated robbery; ⁵ criminal attempt to commit second-degree murder, ⁶ second-degree sexual assault, ⁷ and first-degree kidnapping ⁸ of Deborah Doe. ⁹

The defendant claims that his trial was flawed because the trial court failed to instruct the jury on the defense of reduced mental capacity as to crimes with the mens rea of general intent, the jury verdicts were inconsistent, and the application of the felony-murder doctrine under the facts of this case constitutes a denial of due process and equal protection. The defendant also claims that the trial court erred in not instructing the jury during his sanity trial on the elements of the various offenses with which he was charged. We affirm.

I.

On the night of February 20, 1978, Deborah Doe and her friend Stuart Smollin returned to Doe's apartment at approximately 10:30 p. m. The defendant, who lived in the same apartment house, was hiding, armed with a gun, in her apartment. Discovered, he demanded money and told both Smollin and Doe that he would leave them alone and not hurt them if they cooperated. After obtaining money from both of them, the defendant told Doe that he wanted her car and ordered them out to the parking lot where Doe's car was parked.

The defendant told Smollin to remove certain items from the trunk, forced him to get in, and then closed it. He then ordered Doe into the car and instructed her where to drive. After ordering her to stop at a deserted construction site, he committed a series of sexual assaults, both in and out of the car, on Doe. After completing the sexual assaults, he told Doe that he was sorry for what he had done and then had her open the trunk of the automobile. When Smollin started to get out, the defendant shot him and then turned and shot Doe twice, hitting her in the arm and the stomach. As Smollin was struggling to get out of the trunk, the defendant shot him again and slammed the trunk back on him. Doe was lying on the ground when she heard the defendant say, "What did the bitch do with the keys?" She let the keys drop from her hand; and the defendant walked over, picked them up, and drove away.

Doe eventually found help, the police were called, and she was taken to a hospital. She ultimately recovered from her wounds. The defendant returned to his apartment, leaving Smollin in the trunk of the car. He wiped off fingerprints inside the car, then hid his gun and the car keys in a utility room in the apartment house.

Smollin was alive when he was discovered at 2:00 a. m. the following day but died shortly thereafter. His death was caused by four bullet wounds.

Based upon Doe's report and the discovery of Smollin, the police began an immediate investigation. They checked apartments adjacent to Doe's, then went upstairs. The defendant responded when they knocked on his door. They told him that Doe had been kidnapped and asked if he had seen or heard anything unusual. The defendant told the officers that he had arrived home at approximately 10:30 p. m. and had heard nothing unusual until the arrival of the police. His behavior appeared normal, and he exhibited no signs of disorientation during the interview.

On February 21, Morgan packed his clothes, withdrew money from his bank account, and flew to Fort Smith, Arkansas, where he met a friend and told her the events of the preceding night. She, in turn, called the police who subsequently arrested him. The defendant voluntarily gave a statement to the Arkansas police, and later, Colorado authorities.

In his statements to the police Morgan said that he had a couple of drinks in a Denver bar on the evening of February 20. He returned to his apartment early in the evening; and after that, he could not remember anything other than driving back from where he had left Doe and realizing that there was a man in the trunk of the car whom he thought was dead, and he knew that he had killed that man.

The defendant entered a plea of not guilty by reason of insanity and was committed for observation and examination at the state hospital. At the defendant's request, he was given a psychiatric examination under sodium amobarbital by Dr. Dean Plazak on March 18, 1978.

During the sanity trial, Drs. MacDonald and Levy, testifying for the People, were of the opinion that the defendant was sane. Drs. Paras, Plazak, Frakes, and Roberts testified for the defendant. Paras and Plazak were of the opinion that the defendant was legally insane on the evening of February 20, but Frakes and Roberts were unable to form an opinion whether Morgan was sane or insane.

At the end of the evidence in the sanity trial, the defendant submitted ten instructions defining the elements of the offenses with which he was charged. The trial court refused to give these instructions on the grounds that they were not relevant to the issue which the jury had to decide and they would be distracting and confusing.

The jury returned a verdict finding the defendant sane at the time of the commission of the alleged offenses.

Approximately five months later, the defendant went to trial charged with: (1) murder in the first degree after deliberation, (2) first-degree felony murder, (3) first-degree burglary, (4) aggravated robbery, (5) second-degree kidnapping, (6) criminal attempt to commit murder in the first degree, (7) first-degree sexual assault, and (8) first-degree kidnapping.

The jury returned a verdict of guilty on counts 2, 3, 4, 5, and 8 as charged. On count 1, they found the defendant guilty of murder in the second degree rather than murder in the first degree. On count 6, the jury found the defendant guilty of criminal attempt to commit second-degree murder rather than guilty of the offense of criminal attempt to commit first-degree murder. They found, on count 7, the defendant guilty of sexual assault in the second degree rather than sexual assault in the first degree. In the instructions covering counts 1, 6, and 7, the court also instructed on the appropriate lesser included offenses.

II.

At the conclusion of the sanity trial, the defendant requested the court to instruct the jury on the elements of the various crimes with which he was charged, along with the statutory definitions of "intentionally," "knowingly," "after deliberation," "bodily injury," "serious bodily injury," "deadly weapon," "thing of value," and "sexual penetration."

The trial court refused, holding that the tendered instructions were not relevant to the sole issue that the jury had to decide-was the defendant sane or insane at the time of the commission of the offenses charged.

The defendant argues that the trial court erred in refusing to give his tendered instructions. He bases his argument on the proposition that "the jury's sole responsibility at the sanity trial was to determine whether the mental elements involving culpability could have been exercised during the commission of the acts involved." In support of his position he cites Parks v. District Court, 180 Colo. 202, 503 P.2d 1029 (1972) and People ex rel Juhan v. District Court, 165 Colo. 253, 439 P.2d 741 (1968). ¹⁰

The defendant's interpretation of the jury's responsibility in a sanity trial is in error. By enactment of section 16-8-104, C.R.S.1973 (1978 Repl. Vol. 8), the legislature intended that when a defendant enters a plea of not guilty by reason of insanity the issues of guilt and legal accountability should be separated for trial purposes, and the sanity of the defendant is to be determined first. People v. King, 181 Colo. 439, 510 P.2d 333 (1973). The sanity trial is designed to determine whether the defendant was sane or insane at the time of the alleged offense, and the issue of guilt or innocence plays no part in the resolution of this issue. See Lewis v. Thulemeyer, 189 Colo. 139, 538 P.2d 441 (1975).

The narrow question presented at the sanity trial is whether the defendant was insane within the meaning of section 16-8-101, C.R.S.1973 (1978 Repl. Vol. 8). This section provides:

"Insanity defined. The applicable test of insanity shall be, and the jury shall be so instructed: 'A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act, or being able so to distinguish, has suffered such an impairment of mind by disease or defect as to destroy the willpower and render him incapable of choosing the right and refraining from doing the wrong is not accountable; and this is so howsoever such insanity may be manifested, by irresistible impulse or otherwise. But care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives, and kindred evil conditions, for when the act is induced by any of these causes the person is accountable to the law.' "

This definition addresses the issue of whether the defendant has sufficient mental capacity to be held accountable for any crimes he may have committed. It does not answer the question of whether the defendant was capable of forming a particular mental state required for a conviction of the substantive charge. This determination is left for another jury, pursuant to section 16-8-104, C.R.S.1973 (1978 Repl. Vol. 8). The trial court correctly refused to...