People v. Mullins
| Decision Date | 10 March 1975 |
| Docket Number | No. 25869,25869 |
| Citation | 188 Colo. 23,532 P.2d 733 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Henry MULLINS, Defendant-Appellant. |
| Court | Colorado Supreme Court |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Charles F. Willett, Delta, for defendant-appellant.
Defendant was found guilty by a jury of first-degree murder. The jury set the penalty at life imprisonment. On this appeal, defendant advances several grounds for reversal, none of which have merit. The judgment of the trial court is therefore affirmed.
Defendant's ex-wife and Dean Johnson were married in Delta, Colorado on August 27, 1972. After a short trip to Grand Junction, they returned on August 28, 1972 to their home in Delta. Late that evening, the defendant knocked on their front door and asked his ex-wife if he could see Dean Johnson. She closed the door and went to the bedroom to wake up her new husband. The defendant opened the front door and entered the house. She awakened her husband and he got out of the bed. The defendant then appeared, pulled a pistol from his pocket, and fired it at Dean Johnson until all of the cartridges were spent. Dean Johnson fell to the floor mortally wounded. The defendant remained at the scene until the police arrived and arrested him.
After arrest, and while a police officer was putting handcuffs on him, the defendant spontaneously stated 'I warned that son of a bitch to stay away from her.' A short time later, the defendant asked if the police officer would loosen the handcuffs on his wrists, and the defendant then added the spontaneous comment that he was not going to run because he got the guy he wanted. These statements were not made as a response to any questions by police officers or anyone else.
After the prosecution concluded its case in chief, the defendant rested without testifying himself or offering any defense testimony.
The public defender represented this defendant at trial, filed post-trial motions, and on this appeal prepared and filed briefs. Thereafter, the public defender's motion to withdraw was granted, and the trial court appointed present counsel for the purpose of this appeal.
Although one of the defendant's grounds in his motion for a new trial was that the trial court erred in refusing defendant's tendered instruction and verdict form on voluntary manslaughter, his appeal brief does not advance this as a basis for reversal. Nevertheless, defendant's present counsel on oral argument expressed the view that on appeal this court should consider this alleged error. Under the circumstances of this case, we have examined the record on this point and have concluded that the trial court did not commit reversible error as to this matter.
The evidence as presented here fails to reveal anything which would support or justify a manslaughter instruction to the jury. Our manslaughter statute, section 18--3--104, C.R.S.1973, specifies that to be guilty of manslaughter, the accused must with intent kill another person under circumstances indicating a 'sudden heat of passion caused by a serious and highly provoking act, affecting the person killing sufficiently to excite an irresistible passion in a reasonable person.' This statute also states that 'if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the killing is murder.'
The uncontroverted evidence here is absolutely devoid of any provoking act on the part of the victim, or that any provocation occurred which could excite an irresistible passion in a reasonable person. Rather the evidence shows that the victim, who was in bed asleep, was awakened by his wife, had just got out of bed, and while standing next to the bed, was shot down by the defendant. From all the evidence, the inferences are strong that the defendant first secured the weapon and then went to the victim's house for the purpose of killing him. This is murder and nothing else. Only in those cases where there is evidence--even though it be slight--that there was a serious and highly provoking act by the victim against the accused which could possibly excite an irresistible passion, is a manslaughter instruction required when requested. People v. Miller, Colo., 529 P.2d 648 (1974); Hampton v. People, 171 Colo. 153, 465 P.2d 394 (1970), and Read v. People, 119 Colo. 506, 205 P.2d 233 (1949).
Even had there existed in this case some slight indications of the elements of manslaughter, the refusal of the trial judge to give a manslaughter instruction would have been no more than harmless error. Here, the jury was instructed on first-degree murder and second-degree murder. It found the defendant guilty of first-degree murder, the most serious offense. The jury rejected the less serious offense of two alternatives. If the jury had been given three alternatives, the resulting verdict would have undoubtedly been the same as here.
When the police arrived at the scene of the crime, they were informed by Mrs. Johnson as to the preceding events. A police officer immediately asked defendant where the gun was and the defendant promptly responded that he had thrown it through the window. Defendant objects that this testimony was admitted in violation of his rights under the Fifth Amendment, in that no warnings were given in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The People contend that this situation does not fall within the ambit of Miranda, because this was not a custodial interrogation, but merely the act of a prudent officer who wished to insure that no further violence occurred by attempting to locate the weapon as expeditiously as possible.
In State v. Hudson, 325 A.2d 56 (Me.1974), the Supreme Court of Maine discussed thoroughly the varying approaches to this problem in the light of Miranda. That court discussed the applicability of the rationale of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which allows a limited protective search for weapons when the officer has a reasonable belief that the person is armed and is dangerous. In State v. Hudson, supra, it is stated:
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