People v. Phillips
| Decision Date | 06 August 2009 |
| Docket Number | No. 07CA0363.,07CA0363. |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kelly James PHILLIPS, Jr., Defendant-Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Rhonda L. White, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Cory D. Riddle, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by Judge DAILEY.
Defendant, Kelly James Phillips, Jr., appeals the judgments of conviction entered upon jury verdicts finding him guilty of first degree (felony) murder, two counts of attempted first degree (after deliberation) murder, two counts of first degree assault, three counts of felony menacing, two counts of child abuse, burglary, and attempted robbery. We affirm.
The present case arises out of two separate incidents that occurred on July 5 and July 8, 2005. We mention both incidents because, while defendant's first argument affects the validity of only one conviction arising out of the second incident, defendant's other argument affects the validity of all convictions arising out of both incidents.
On July 4, defendant got into an argument with his brother-in-law about a previous confrontation between the brother-in-law and defendant's mother. The next day, defendant shot the brother-in-law three times, but did not kill him.
On July 8, defendant went to see M.Z. When M.Z. came outside the front door to see defendant, defendant immediately shot him once in the head, killing him. Defendant then entered the house, proceeded to a back bedroom, found J.M., demanded "the drugs" from J.M., and shot him through the upper lip, severely injuring, but not killing, him. When defendant tried to shoot J.M. again, his gun jammed, and defendant assaulted him. J.M. fought back, and the two men took their fight out to the front yard, where police arrested defendant.
The trial court sentenced defendant to life without parole and an aggregate term of one hundred years imprisonment.
Defendant contends that there was insufficient evidence to convict him of felony murder. Specifically, he argues that the prosecution presented no evidence that he possessed the necessary intent to commit an underlying felony at the time he shot M.Z. We disagree.
We review a challenge to the sufficiency of the evidence de novo. Dempsey v. People, 117 P.3d 800, 807 (Colo.2005). In assessing the sufficiency of the evidence, we must determine, after viewing both direct and circumstantial evidence in the light most favorable to the prosecution, whether the evidence was sufficient both in quantity and quality to prove the charges beyond a reasonable doubt. Id. We give the prosecution every reasonable inference which can be fairly drawn from the evidence. People v. Johnson, 923 P.2d 342, 346 (Colo.App.1996). If there is evidence upon which the jury may reasonably infer an element of the crime, the evidence is sufficient to sustain that element. People v. Grant, 174 P.3d 798, 812 (Colo.App. 2007). Where reasonable minds could differ, the evidence is sufficient to sustain a conviction. Id.
A person commits felony murder when, as relevant here,
he or she commits or attempts to commit ... robbery [or] burglary ... and, in the course of or in furtherance of the crime that he or she is committing or attempting to commit, ... the death of a person ... is caused by anyone.
§ 18-3-102(1)(b), C.R.S. 2008.
The felony murder statute is "broad in scope," Auman v. People, 109 P.3d 647, 655 (Colo.2005), and applies when the felony and the killing are "so closely connected in point of time, place and continuity of action as to be one continuous transaction." People v. McCrary, 190 Colo. 538, 553, 549 P.2d 1320, 1331-32 (1976) (quoting Bizup v. People, 150 Colo. 214, 218, 371 P.2d 786, 788 (1962)).
Under the felony murder statute, there is no requirement that the defendant intend the death of the victim. People v. Scheer, 184 Colo. 15, 21, 518 P.2d 833, 835 (1974) (); People v. Fisher, 9 P.3d 1189, 1191 (Colo.App.2000) (). Rather, "[l]iability arises from the defendant's participation in, and intent to commit, one of the ... predicate[] felonies [i.e., robbery or burglary]," and "the intent to kill is imputed from the participant's intent to commit the predicate felony." Auman, 109 P.3d at 655; see also Fisher, 9 P.3d at 1191 ().
Here, defendant argues that the felony murder charge must be vacated because there was no evidence that he had formed the intent to commit either robbery or burglary at the time he shot M.Z. Therefore, he argues, any conclusion that he had the requisite intent to commit either felony prior to shooting M.Z. would be impermissible speculation. We disagree.
An actor's state of mind is normally not subject to direct proof and must be inferred from his or her actions and the circumstances surrounding the occurrence. People v. Thompson, 121 P.3d 273, 278 (Colo.App. 2005). The specific intent to commit a crime may, therefore, be inferred from the defendant's conduct and the overall circumstances. People v. Howard, 89 P.3d 441, 444 (Colo. App.2003) (second degree assault); People v. Germany, 643 P.2d 776, 777 (Colo.App.1980) (theft).
A division of this court held in People v. Braxton, 807 P.2d 1214 (Colo.App.1990), that the felony murder statute
does not require a finding that the defendant was committing the predicate felony at the time he caused a death. [A]s a matter of law, ... the sequence of events is irrelevant as long as sufficient evidence is produced to show that a felony was committed by the defendant and that a death occurred during the commission of that felony.
Id. at 1217 (citations omitted).
Where, as here, there is a close temporal and spatial relationship between a killing and subsequent felony, the defendant's intent to commit the underlying felony may be inferred from the circumstances. This conclusion is consistent with that of other courts that have addressed similar factual circumstances. See Commonwealth v. Legg, 491 Pa. 78, 417 A.2d 1152, 1155 (1980) (); State v. Buggs, 995 S.W.2d 102, 108 (Tenn.1999) (); Nelson v. State, 848 S.W.2d 126, 131 (Tex. Crim.App.1992) (); Bouwkamp v. State, 833 P.2d 486, 492 (Wyo.1992) ().
Our review of the record reveals that (1) defendant and M.Z. had been friends since childhood; (2) M.Z. and J.M. were known to sell drugs from time to time; (3) on July 8, defendant arrived at M.Z.'s girlfriend's house, looking for M.Z.; (4) M.Z. went outside to meet defendant, and defendant immediately shot and killed him; (5) defendant then opened the door and walked into the house, past M.Z.'s girlfriend, and directly to the back bedroom; (6) once in the back bedroom, defendant pointed his gun at J.M. and demanded to know "where the drugs were"; (7) J.M. denied having any drugs; and (8) defendant shot J.M. in the face, severely injuring, but not killing, him.
Defendant does not argue that any intervening acts occurred between M.Z.'s death and the commission of the robbery and burglary that would separate them as individual transactions, nor do we find evidence of any such intervening acts in the record.
Construing the evidence in the light most favorable to the prosecution, a reasonable juror could conclude that the killing and attempted robbery and burglary were so closely connected as to be one continuous transaction. Further, we conclude that, while there is no direct evidence of defendant's intent, sufficient circumstantial evidence exists from which the jury could infer that defendant formed the necessary intent to commit either burglary or robbery prior to or concurrent with his shooting of M.Z.
Thus, there is sufficient evidence to support the conviction.
We also reject defendant's contention that the trial court erred in denying his challenges for cause to two prospective jurors.
During voir dire, Juror 4 expressed her opinion that if defendant chose not to testify "he must have something to hide," and Juror 11 indicated that he would have difficulty in giving defendant the benefit of a presumption of innocence. The trial court denied defendant's challenges for cause to both jurors because it found that they would be able to follow the law.
A trial court must sustain a challenge for cause if a juror's state of mind evinces enmity or bias toward either side, unless the court is satisfied that the juror will render an impartial verdict based solely on the law and the evidence submitted to the jury at the trial. § 16-10-103(1)(j), C.R.S.2008; Crim. P. 24(b)(1)(X). A prospective juror who makes a statement that may exhibit actual bias may sit on the jury so long as he or she agrees to set aside any preconceived notions and make a decision based on the evidence and the court's instructions. People v. Lefebre, 5 P.3d 295, 300 (Colo.2000); Carrillo v. People, 974 P.2d 478, 487 (Colo.1999).
Great deference is given to the trial court's determination of a...
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