People v. Orona

• Decision Date: 23 March 1995
• Docket Number: No. 91CA0121,91CA0121
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Frank M. ORONA, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 659

907 P.2d 659

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Frank M. ORONA, Defendant-Appellant.

No. 91CA0121.

Colorado Court of Appeals Div. III.

March 23, 1995.

Rehearing Denied June 1, 1995.

Certiorari Denied Dec. 11, 1995.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John J. Krause, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Terri L. Brake, Chief Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge HUME.

Defendant, Frank Orona, appeals the judgment of conviction entered upon jury verdicts finding him guilty of first degree murder after deliberation, seven counts of forgery, and one count of giving false information to a pawnbroker. We affirm.

The prosecution charged defendant with first degree murder under theories of both felony murder and murder after deliberation, claiming that defendant stole the victim's credit cards, forced him to cash two checks to empty his bank accounts, and then intentionally and deliberately killed him.

Defendant admitted that he killed the victim, but asserted the affirmative defense of intoxication. He claimed that, because he had been drinking, he had only a partial memory of the killing and subsequent events and that, in killing the victim, he had reacted impulsively to an unwanted sexual overture rather than intentionally and after deliberation.

After a three-week trial, a death-qualified jury found defendant guilty of first degree murder under both theories. The same jury later was unable to agree upon imposition of the death penalty, thus requiring imposition of a sentence to life imprisonment without parole. The trial court then dismissed that part of the verdict based on felony murder and sentenced defendant to a term of imprisonment for life without parole for murder after deliberation, to run concurrently with sentences of six years on each of the forgery counts and four years on the false information count.

I.

Defendant's principal contention is that the trial court erred in refusing to submit his tendered jury instructions concerning application of the intoxication defense to the "after deliberation" element of first degree murder, claiming that "after deliberation" is a part of the mental culpability requirement for first degree murder. The trial court determined that the "after deliberation" requirement was not part of the specific intent culpability element contained in § 18-3-102(1)(a), C.R.S. (1986 Repl.Vol. 8B). Defendant contends that this ruling improperly relieved the prosecution of its burden to disprove intoxication as an affirmative defense to the specific intent requirement of the murder charge and that this error warrants a new trial. We disagree.

A person commits first degree murder if, after deliberation and with intent to cause the death of a person other than himself, he causes the death of that person or of another person. Section 18-3-102(1)(a), C.R.S. (1986 Repl.Vol. 8B).

Relevant evidence of a defendant's self-induced intoxication may be offered to negate the existence of the specific intent requirement. See § 18-1-804(1), C.R.S. (1986 Repl.Vol. 8B).

Section 18-1-501, et seq., C.R.S. (1986 Repl.Vol. 8B) defines culpability requirements for all offenses contained within the criminal code. Section 18-1-501(4), C.R.S. (1986 Repl.Vol. 8B) defines "culpable mental state" as "intentionally, or with intent, or knowingly, or willfully, or recklessly, or with criminal negligence...." Section 18-1-501(5), C.R.S. (1986 Repl.Vol. 8B), states that a person acts "intentionally or 'with intent' when his [or her] conscious objective is to cause the specific result proscribed by the statute defining the offense."

Accordingly, as applied to § 18-3-102(1)(a), the requisite specific intent is the intent to cause the death of a person other than the perpetrator. While that statute also requires that the act of killing be accomplished "after deliberation," we fail to perceive that that requisite element is a part of the culpable mental state required for first degree murder.

"After deliberation" is not included in the statutory definitions of "culpable mental state," "intentionally," or "with intent." Rather, that term is defined separately in § 18-3-101(3), C.R.S. (1986 Repl.Vol. 8B) as meaning "not only intentionally but also that the decision to commit the act has been made after the exercise of reflection and judgment concerning the act." Thus, under § 18-3-101(3) the term "after deliberation" is "separate from" and "in addition to" the requisite culpable mental state of "intentionally." In this regard, we note that § 18-3-102(1)(a) specifies that murder in the first degree is committed by a perpetrator who acts both "after deliberation and with the intent to cause the death of a person...." (emphasis added)

Thus, the statute defining murder after deliberation, the culpability section of the criminal code, and the section of the code dealing with intoxication as a defense are consistent in treating "intent" and "after deliberation" as separate concepts. Hence, we perceive no statutory indication that intoxication should be separately considered as a defense to the "after deliberation" element as well as the element of "with intent to cause death."

Defendant has cited various Colorado cases in support of his argument that "after deliberation" is a part of the intent element under § 18-3-102(1)(a). We do not find the cited cases persuasive.

First, many of the cited cases deal with the first degree murder statute in effect prior to the adoption of § 18-3-102 in its present form. Compare Colo.Sess.Laws 1971, ch. 121, § 40-3-102(1)(a) at 418 with § 18-3-102(1)(a).

Section 40-3-102(1)(a) defined murder in the first degree as a killing caused "with premeditated intent to cause the death of a person...." The term "after deliberation" was not incorporated into the first degree murder statute until 1974. See Colo.Sess. laws 1974, ch. 52, §§ 40-3-101(1)(a) and 40-3-102(1)(a) at 251.

Cases dealing with the concept of murder after deliberation generally recognize a distinction between the requisite mental state of "intentionally" or "with intent" and the additional necessary element of "after deliberation." In People v. District Court, 779 P.2d 385, 388 (Colo.1989), the supreme court discussed the separate elements of intent and deliberation and concluded:

The element of deliberation, like intent, can rarely be proven other than through circumstantial or indirect evidence. (emphasis added)

In likening the two elements, the court implied that they were not the same and that one was not included within the other. See also People v. Bartowsheski, 661 P.2d 235 (Colo.1983) and People v. Madson, 638 P.2d 18 (Colo.1981). And, contrary to defendant's argument, we find nothing in the majority opinion of Key v. People, 715 P.2d 319 (Colo.1986) that would compel the construction he advocates here.

In addition, all jury instructions must be read and considered together, and if, collectively, they adequately inform the jury of the law, there is no reversible error. People v. Manier, 184 Colo. 44, 518 P.2d 811 (1974).

Here, the trial court submitted instructions advising the jury that:

It is an affirmative defense to the crime of First Degree Murder (after deliberation) that the defendant, because of voluntary intoxication, did not have the intent required by that offense.

Other instructions gave statutory definitions of "intentionally" or "with intent," the statutory definition of "after deliberation," and an instruction specifying that the prosecution bore the burden of proving defendant's guilt beyond a reasonable doubt as to the affirmative defense.

Further, the trial court gave defendant's theory-of-the-case instruction stating that he stabbed the victim in reaction to the latter's unsolicited and undesired sexual advances, and that Defendant claims that his stabbing of the deceased was done out of anger and fear, that his drinking poorly affected his judgment, and that he reacted emotionally and impulsively, without thinking before he reacted.

Because the instructions as a whole fully and adequately informed the jury on the law of specific intent and after deliberation, the court committed no error in refusing defendant's additionally tendered instruction as to the concept of "after deliberation."

II.

Defendant also raises a number of other issues, including that the trial court committed reversible error in denying his challenges for cause as to three jurors. We perceive no error.

A defendant has the fundamental right to a fair trial by a panel of impartial jurors and the trial court must exclude prejudiced or biased persons from the jury. However, the court's denial of a challenge for cause will be set aside only if the record shows a clear abuse of discretion. People v. Ferrero, 874 P.2d 468 (Colo.App.1993).

Here, defendant claimed that the challenged jurors could not be impartial because they held preconceived notions about the death penalty and/or the use of alcohol as a defense to murder. The trial court denied each challenge, after allowing and considering extensive voir dire as to each challenged juror's ability to follow the law as given by the court.

A prospective juror's expression of concern or indication of preconceived belief does not automatically require exclusion for cause. People v. Russo, 713 P.2d 356 (Colo.1986). If the court is satisfied that the juror will be able to set aside the preconceived notion and render an impartial verdict according to the law and evidence admitted at trial, the juror should not be disqualified. People v. Drake, 748 P.2d 1237 (Colo.1988).

In making this determination, the court may consider a juror's assurances that he or she can fairly and impartially serve on the case. People v. Sandoval, 733 P.2d 319 (Colo.1987).

An appellate court...