People v. Raymer

• Decision Date: 25 April 1983
• Docket Number: No. 81SC65,81SC65
• Citation: 662 P.2d 1066
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Scott Elliott RAYMER, Respondent.
• Court: Colorado Supreme Court

Page 1066

662 P.2d 1066

The PEOPLE of the State of Colorado, Petitioner, v. Scott Elliott RAYMER, Respondent.

No. 81SC65.

Supreme Court of Colorado,

En Banc.

April 25, 1983.

Rehearing Denied May 23, 1983.

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., John Daniel Dailey, Asst. Atty. Gen., Denver, for petitioner.

J. Gregory Walta, Colorado State Public Defender, Jody Sorenson Theis, Deputy State Public Defender, Denver, for respondent.

ERICKSON, Justice.

We granted certiorari to review the decision of the court of appeals in People v. Raymer, 626 P.2d 705 (Colo.App.1980), reversing the defendant's conviction for aggravated robbery and remanding the cause to the district court for additional findings on certain issues. The defendant, Scott Elliott Raymer, was convicted of felony murder, section 18-3-102(1)(b), C.R.S.1973 (1978 Repl.Vol. 8), and aggravated robbery, section 18-4-302, C.R.S.1973 (1978 Repl.Vol. 8). On appeal, the defendant claims that aggravated robbery is a lesser included offense of felony murder and that convictions for both crimes violate his rights against double jeopardy. Additionally, Raymer claims that the police unnecessarily delayed taking him before a judicial officer for an advisement in violation of his Crim.P. 5 rights. The court of appeals agreed with Raymer's contentions. We affirm.

I.

On December 20, 1976, Scott E. Raymer and two of his friends robbed a self-service gas station in Lakewood, Colorado. During the robbery, an attendant was killed when Raymer fired a shotgun through the pay booth window. Later that day, a self-service gas station in Denver, Colorado was robbed and another attendant was killed by suspects using a similar modus operandi. After two days of intensive investigation, Raymer was arrested by a Lakewood police officer at an apartment in Adams County, Colorado. The arrest occurred at 10:15 a.m. on December 22, 1976. The arresting police officer orally advised Raymer of his Miranda rights and, without further questioning, turned him over to Adams County deputies who transported Raymer to an Adams County police substation.

Raymer was subsequently transferred to the Adams County jail in Brighton, Colorado, where he was held from approximately 1:00 p.m. to 1:30 p.m. One of Raymer's accomplices to the crimes was already in Denver police custody and confessed to complicity in the shootings. Because of the confession, Lakewood police who had arrived at the Adams County jail to question Raymer determined that the suspect should be turned over to Denver police investigators. Accordingly, the Lakewood officers transported Raymer to the Denver jail where they arrived at approximately 2:00 p.m.

Raymer was advised of his Miranda rights by the Denver police. He then signed a written advisement form stating that he had been advised of and understood his rights. At that time, Raymer agreed to give a statement without the presence of an attorney. Beginning at approximately 2:40 p.m., nearly four and one-half hours after his arrest, Raymer confessed to committing the Lakewood robbery and firing the gun blast which caused the death of the service station attendant. Raymer, who later refused to sign a transcript of the confession, was then booked into the Denver jail. At 9:30 a.m. on December 24, 1976, almost forty-seven and one-half hours after his arrest, Raymer was advised by a judge of his rights pursuant to Crim.P. 5.

On January 6, 1977, an information was filed against Raymer in Jefferson County for the Lakewood robbery and homicide. In May of 1977, Raymer was tried and convicted of first degree felony murder and aggravated robbery. The trial court sentenced Raymer to death for felony murder and to a term of not less than thirty-six nor more than forty years for aggravated robbery. ¹

The defendant appealed his convictions to the court of appeals. The court held that aggravated robbery is a lesser included offense of felony murder because it considered "robbery," which is an underlying felony for felony murder, a generic category which includes all types of robbery. Therefore, convictions for both aggravated robbery and felony murder were improper. 626 P.2d at 707. The court also concluded that Raymer's confession may have been a product of unnecessary and prejudicial delay resulting from the failure of the police to bring him before a judge for the advisement of his Crim.P. 5 rights. The court remanded the cause to the trial court for findings on whether the delay was necessary and whether the delay was prejudicial to the defendant. The court of appeals ordered the trial court to grant the defendant a new trial if the confession were found to be a product of the illegal delay.

II.

Scott Raymer was charged by separate counts with felony murder and aggravated robbery. One count alleged felony murder, section 18-3-102(1)(b), C.R.S.1973 (1978 Repl.Vol. 8), in that the defendant on December 20, 1976, "did unlawfully and feloniously commit the crime of robbery" and in the course or in furtherance of this crime or immediate flight therefrom he caused the death of Doris Mae Hargrove who was not a participant in the robbery. A separate count charged the defendant with the crime of aggravated robbery as proscribed by section 18-4-302(1), C.R.S.1973 (1978 Repl.Vol. 8). The second count alleged that on December 20, 1976, the defendant took money from the person or presence of Doris Mae Hargrove by force, threats or intimidation; that during the robbery or immediate flight therefrom he was armed with a deadly weapon; and that either he had the intent, if resisted, to kill, maim or wound the person robbed with a deadly weapon, or he put the person robbed in reasonable fear of death or bodily injury by use of force, threats or intimidation with a deadly weapon.

Section 18-1-408, C.R.S.1973 (1978 Repl.Vol. 8), provides the framework for the appropriate resolution of the issue of multiple convictions in this case. Subsection 18-1-408(1)(a) prohibits multiple convictions for more than one offense if "[o]ne offense is included in the other, as defined in subsection (5) of this section." Under subsection (5) an offense is included in the other when:

"(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

"(b) It consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or

"(c) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission."

We recently held in People v. Bartowsheski, 661 P.2d 235 (Colo.1983), that section 18-1-408(1), prohibits the multiple convictions of felony murder based upon the killing of the robbery victim and the predicate felony of robbery. The basis of our holding was that the charge of felony murder based upon causation of the robbery victim's death required proof of the very same elements essential to the charge of robbery, and, therefore, robbery was a lesser included offense of felony murder within the meaning of section 18-1-408(5)(a), C.R.S.1973 (1978 Repl.Vol. 8).

We neither held nor implied in Bartowsheski that subsection (5)(a) of section 18-1-408 constituted the only test of a lesser included offense. The definition of a lesser included offense in subsection 18-1-408(5) is substantially broader than the test for a lesser included offense developed in our cases decided prior to the adoption of the Colorado Criminal Code. Under these precode cases the determination of the "lesser included" issue turned on whether the establishment of the greater offense necessarily required proof of all of the elements essential to the lesser offense. E.g., People v. Hancock, 186 Colo. 30, 525 P.2d 435 (1974); People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974); Daniels v. People, 159 Colo. 190, 411 P.2d 316 (1966). This judicially created standard, which is virtually identical to only one of the three definitions of a lesser included offense in section 18-1-408(5), requires a comparison of the statutory constituents essential to establish the greater charge and the arguably lesser included offense. See, e.g., People v. Rivera, supra; People v. Bugarin, 181 Colo. 62, 507 P.2d 875 (1973).

Subsection (5)(c) of section 18-1-408 expands the definition of a lesser included offense to include an offense which "differs from the offense charged only in the respect that less serious injury or risk of injury to the same person, property, or public interests or a lesser kind of culpability suffices to establish its commission." The charge of aggravated robbery qualifies as a lesser included offense of felony murder under this statutory standard.

Section 18-3-102(1), C.R.S.1973 (1978 Repl.Vol. 8), states in pertinent part:

"(1) A person commits the crime of murder in the first degree if:

* * *

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(b) Acting either alone or with one or more persons, he commits or attempts to commit ... robbery ... and, in the course of or in furtherance of the crime that he is committing or attempting to commit, or of immediate flight therefrom, the death of a person, other than one of the participants, is caused by anyone."

Aggravated robbery is defined in section 18-4-302(1), C.R.S.1973 (1978 Repl.Vol. 8), as follows:

"(1) A person who commits robbery is guilty of aggravated robbery if during the act of robbery or immediate flight therefrom:

(a) He is armed with a deadly weapon with intent, if resisted, to kill, maim, or wound the person robbed or any other person; or

(b) He knowingly wounds or strikes the person robbed or any other person with a deadly weapon or by the use of force, threats, or intimidation with a deadly weapon knowingly puts the person robbed or any other person in reasonable fear of death or bodily...