People v. O'Neill, 88SA8

• Decision Date: 10 December 1990
• Docket Number: No. 88SA8,88SA8
• Citation: 803 P.2d 164
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John O'NEILL, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 164

803 P.2d 164

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John O'NEILL, Defendant-Appellant.

No. 88SA8.

Supreme Court of Colorado En Banc.

Dec. 10, 1990.

Rehearing Denied Jan. 14, 1991.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard B. Forman, Sol. Gen., Robert M. Petrusak, Asst. Atty. Gen., Donna Skinner Reed, Sp. Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Michael J. Heher, Deputy State Public Defender, Denver, for defendant-appellant.

Justice ERICKSON delivered the Opinion of the Court.

This is a capital case in which the jury imposed a sentence of death after returning guilty verdicts on seven counts including first-degree murder. The defendant, John O'Neill, seeks review of both the underlying judgments of conviction and the sentence of death. We reverse the sentence of death, partially reverse the judgments, and remand to the trial court with directions.

I

The defendant, John O'Neill, and John Baca were good friends and were involved in an unlawful marijuana cultivation and trafficking venture. The illicit business was conducted out of three residential properties in Jefferson county. A house on South Balsam street was owned by O'Neill. John Baca owned a house on West Rice Place, and Baca's girlfriend, Sandra Cowan, owned a residence on Sheephorn Mountain. Both the Sheephorn and Balsam houses were used to grow marijuana. O'Neill tended the marijuana plants and John Baca, the mastermind of the venture, sold the product, under an agreement to split the profits 50-50. John Baca's son, David Baca, helped O'Neill tend the plants.

Late in the evening of February 2, 1987, O'Neill, his girlfriend, and David Baca went to a movie. At some point, David Baca suggested his father had been stealing marijuana and profits from O'Neill. Later that night, the three returned to O'Neill's house on Balsam and found the house ransacked, and marijuana plants either destroyed or stolen. David Baca stated it must have been his father who had invaded the house, and O'Neill became visibly upset. O'Neill decided to find John Baca, but first armed himself with a .38 caliber revolver. After dropping off his girlfriend, O'Neill and David Baca drove to the Sheephorn residence.

Although John Baca owned the house on Rice Place, he typically spent the night with Cowan at the Sheephorn residence. On February 3, 1987, at approximately 1:00 a.m., Baca arrived at the Sheephorn house. O'Neill and David Baca got to the house an hour later, rang the bell, and identified themselves. After John Baca let the two into the house, O'Neill asked him if he had been around the Balsam house that night. When Baca failed to answer, O'Neill shot him once in the head, and missed him with a second shot. Immediately afterwards, O'Neill and David Baca went to a bedroom where Cowan was lying in bed. Cowan testified that O'Neill said, "John cheated me. You cheated me. Get your hands up in the air and get dressed." O'Neill was holding the gun, and Cowan was so frightened that she could not move or respond. David Baca was also in the room and was also armed with a pistol.

John Baca, who was critically wounded but not yet dead, was moaning. O'Neill left the room and fired another bullet into Baca's temple at point-blank range. O'Neill then returned to the bedroom and asked why Cowan was not dressed. He then asked her the location of the money from the marijuana sales. Cowan told him it was not in the house, at which time O'Neill declared the three of them would go to the Rice Place house to look for the money.

The three got into O'Neill's truck and first started toward O'Neill's house on Balsam. They stayed at the Balsam street house just long enough for Cowan to finish dressing and for O'Neill to show Cowan the damage to his furniture and marijuana plants. Cowan testified that while they were at the Balsam house, O'Neill told her, "I could have killed you just like John Baca. But as long as you work for me and keep your mouth shut you'll live."

After they left the Balsam house, the trio went to the house on Rice Place, where David Baca and Cowan went inside and retrieved approximately $4,000. The three then went back to the Sheephorn residence where John Baca's body still lay. O'Neill sent David Baca and Cowan into the bedroom to pack some clothes for Cowan, and began trying to clean the blood stains on the wall and carpet. O'Neill asked Cowan for rags and cleaning solvents, and Cowan told him to look under the sink. Later, O'Neill asked Cowan for a sheet to cover Baca's body. He told Cowan she would have to help him get rid of the body, and when she refused, she was told she would have to return the next day and clean up the blood.

O'Neill then returned to the master bedroom and looked in Baca's wallet for more money. Cowan told him Baca kept his money in his pants pocket, and O'Neill went out and stripped the body of approximately $1,000 cash. Cowan then told O'Neill she needed money O'Neill owed her, and O'Neill paid her $500.

At approximately 4:30 a.m., the three went back to the Balsam street house, Cowan and Baca in John Baca's truck, and O'Neill in his Datsun pickup. O'Neill left, telling Baca to "watch" Cowan, and returned about one hour later with his girlfriend and her small child. O'Neill and his girlfriend slept for awhile, and then O'Neill left for a 10:00 a.m. dentist appointment and Baca fell asleep. It was then that Cowan escaped, ran to a neighbor's house, and told the occupants, "I've seen a murder. They're going to murder me. Please call the police. Help me." The Jefferson County Sheriff's Department was called, and subsequently Baca turned himself in to the authorities and O'Neill was arrested.

David Baca entered into a plea agreement and testified against O'Neill. On November 16, 1987, the jury convicted O'Neill of first-degree murder with deliberation, ¹ felony murder, ² second-degree kidnapping, ³ felony theft, ⁴ misdemeanor theft, ⁵ cultivation of marijuana, ⁶ and one mandatory sentencing count under section 16-11-309, 8A C.R.S. (1986). The state then sought the death penalty on the basis of three statutory aggravating factors: that the killing was performed for pecuniary gain, was performed in furtherance of another felony (second-degree kidnapping), and was especially cruel, heinous, or depraved. The jury found that the murder was committed for pecuniary gain and in furtherance of another felony, but did not find that it was cruel, heinous, or depraved. The jury also found that the aggravating factors outweighed the mitigating factors and determined, on November 18, 1987, that death was the appropriate penalty.

On appeal, the defendant, through his counsel, submitted a 346 page "partial" opening brief in which he asserts 52 errors, which he maintains require reversal of both the sentence and the underlying judgments. These claims can be broken down into roughly four areas: issues relating to jury voir dire, to the substantive offenses, to the sentencing phase, and other miscellaneous claims. In addition to specific statutory violations, O'Neill claims trial court errors resulted in violations of his constitutional right to trial by jury and to counsel, and his rights under the cruel and unusual punishment and due process clauses of the United States and Colorado Constitutions. ⁷

II

A

O'Neill contends that the trial court unreasonably restricted his counsel's voir dire of prospective jurors regarding claimed hardships and the effects of publicity in violation of Crim.P. 24. ⁸ Rule 24 provides that, after the judge has asked the prospective jurors "any questions which he believes are pertinent to their qualifications to serve as jurors," The parties or their counsel shall be permitted to ask the prospective jurors additional questions. In order to eliminate undue delay, the judge may reasonably limit the time available to the parties or their counsel for voir dire examination. If, in the opinion of the court, the examination by the parties or counsel is unduly repetitious, irrelevant, unreasonably lengthy, abusive, or otherwise improper, the court may limit or terminate such examination.

O'Neill correctly asserts that he is entitled to a fair and impartial jury under both the United States and Colorado Constitutions. The right to an impartial jury does not, however, require that counsel be granted unlimited voir dire examination. See Discussion, Voir Dire Criticism and Comment, 47 Den.U.L.Rev. 465 (1970). Nor is counsel entitled to voir dire the jury as a matter of constitutional law. Luera v. Snyder, 599 F.Supp. 1459 (D.Colo.1984). We have said, however, that counsel has the right to propound questions to a jury. Zancannelli v. People, 63 Colo. 252, 165 P. 612 (1917). Moreover, unlike the federal system, rule 24 provides counsel the right to question jurors, although the scope and extent of that right may be limited within the discretion of the trial court. People v. Collins, 730 P.2d 293, 300 (Colo.1986). The question here is whether O'Neill was afforded or waived that right.

O'Neill complains that the trial court unduly restricted his counsel's questioning of jurors regarding claimed hardships. Yet the voir dire in this case was extensive. Both the court and counsel questioned potential jurors on a variety of topics, and that questioning spanned 1,124 pages of record. Although the defendant complains that the court ordered defense counsel not to participate in voir dire regarding claimed hardships or publicity issues, counsel were specifically requested to write questionnaires and submit them to the trial court. The court then stated it would determine the issues regarding juror hardship and any issue relating to publicity. Defense counsel was asked and specifically agreed to the court's procedure. No objection by defense counsel appears in the record. Because of the record before us, O'Neill cannot complain on...