People v. Roark

Decision Date05 April 1982
Docket NumberNo. 80SA389,80SA389
Citation643 P.2d 756
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Douglas Eugene ROARK, Defendant-Appellant.
CourtColorado Supreme Court

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Nathan B. Coates, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Brian T. McCauley, Westminster, for defendant-appellant.

LOHR, Justice.

As the result of a jury trial in Adams County District Court, the defendant, Douglas E. Roark, was convicted of extreme indifference murder, 1 felony murder, 2 second-degree sexual assault, 3 and child abuse. 4 All the charges were based on events which resulted in the violent death of 23-month-old Christie Lee Floyd. The defendant pled not guilty by reason of insanity with respect to each charge. After a trial on the sanity issue, a jury found that he was sane at the time each offense occurred. Thereafter, a different jury found Roark guilty of each of the offenses.

The defendant asserts numerous errors in his sanity trial as well as in the guilt trial. We find no prejudicial error in the sanity trial and so affirm the jury's verdicts that the defendant was sane when each offense was committed. His convictions, however, must be reversed because of errors in the guilt trial. We have held that the extreme indifference murder statute is unconstitutional; thus, the defendant's conviction for that crime cannot stand, and the charge must be dismissed. Additionally, we conclude that the trial court erred in permitting a psychiatrist to testify about certain incriminating statements made by the defendant during a psychiatric examination conducted for use in the sanity determinations. Accordingly, we reverse the judgment of conviction and remand the case for a new trial on the charges of felony murder, second-degree sexual assault, and child abuse.


On September 30, 1978, the defendant was living with his girlfriend of several months, Deborah Floyd, and Floyd's daughter, Christie, in their apartment in Aurora, Colorado. Travis Roark, the defendant's 5-year-old son from a previous marriage, was visiting with his father at the time. On September 30 Deborah Floyd went out for the evening, leaving the defendant to care for Travis and Christie. The defendant, accompanied by the children, spent the evening with a male friend, drinking beer at the defendant's apartment and playing pool at a nearby establishment.

After the friend left, near midnight, and before Deborah Floyd returned, the defendant experienced difficulty in persuading Christie to go to sleep. Frustrated by his lack of success, he struck the child. The evidence does not establish precisely the ensuing events or their sequence, but within a span of about two hours the defendant had beaten the child severely and placed her on the living room couch. Within the next few hours the young girl died from loss of blood incident to the serious internal injuries that had resulted from the beating.

When Deborah Floyd returned at about 2:30 a. m., both children were on the couch and were covered with sheets, as was their custom when sleeping. The defendant was lying on the floor asleep. He awakened, and, without checking on the children, the two adults went to bed. The next morning the defendant arose early and helped his parents deliver newspapers. When he returned to the apartment shortly after 9:00 a. m., the defendant found that Deborah Floyd had not yet arisen. He then went to the living room, looked at Christie, and determined that she was dead. The defendant cried out, arousing the child's mother. Someone called the police. By the time the police arrived, the defendant's mother and father and the fire department rescue squad were on the scene.

The police entered the apartment, where they found and questioned the defendant. He first attributed Christie's injuries to the acts of neighborhood children. He then was taken to the police station and, after extensive questioning, admitted that he had beaten the child. During the course of the investigation, the apartment was searched and a number of items linked to the child's death were seized.

In this appeal Roark asserts that numerous reversible errors occurred in his sanity trial and in the trial-in-chief. We first address those assignments of error relating to the sanity trial and then discuss the defendant's challenges to the guilt trial proceedings. In the course of considering these matters, we shall set forth additional relevant facts as necessary for an understanding of the issues.


The defendant relies on the following claimed errors to support reversal of the sanity determination: (A) admission of hearsay evidence about a statement by 5- year-old Travis Roark, (B) admission of testimony concerning certain of the defendant's statements to the police, (C) receipt of two photographs depicting injuries inflicted by the defendant on his ex-wife, (D) admission of expert testimony concerning a psychological test administered to the defendant, (E) an instruction to the jury, absent a request by the defendant, that the defendant need not testify, and (G) denial of a motion for a new trial based on newly discovered evidence. We address these issues in turn.


At the sanity trial, Deborah Floyd, the mother of the slain child, testified about an incident which occurred outside her residence while the police were first investigating the death. Deborah Floyd and Travis Roark had moved outside to wait in a pickup truck. A stranger passed by and asked Floyd about the cause of the commotion. She responded, "Some kids, from what I had heard, had murdered my daughter." Travis then said, "Debbie, the kids didn't beat Christie up, my daddy did but he told me not to tell you." Deborah Floyd testified that she then told a police officer of Travis' statement. This testimony was received over a timely objection by the defendant that it was hearsay and that 5-year-old Travis had not been shown to be competent. The trial court held the statement admissible as part of the res gestae.

"The res gestae or excited utterance exception (to the hearsay rule) applies to statements relating to a startling act or events made spontaneously and without reflection while the declarant was under the stress of excitement, and offered to prove the truth of the matter asserted." Lancaster v. People, Colo., 615 P.2d 720, 721 (1980). In Lancaster, we considered that hearsay exception as applied to the victim of a sexual assault who was 2 years and 10 months old at the time. Addressing the question whether testimonial incapacity due to age is a bar to admission of a hearsay statement which would otherwise be admissible in evidence as res gestae, we concluded that it is not. We reasoned that "(t)he requirement of spontaneity and excitement subsumed by the res gestae exception furnishes a sufficient guarantee of trustworthiness implicit in the rationale of hearsay exceptions." Id. Colo., 615 P.2d at 722 (citations omitted). That ruling is dispositive of the defendant's competency objection to Travis' statement, for that statement is admissible, if at all, only if it fits within the res gestae exception to the rule prohibiting admission of hearsay evidence.

In Lancaster we also considered whether the half-hour lapse of time between the sexual assault and the time the victim arrived home and made the challenged statement to her mother disqualified the statement as res gestae. We held that contemporaneity is not strictly required and ruled that "(w)hat is of critical significance to res gestae is the spontaneous character of the statement and its natural effusion from a state of excitement." We further noted that "(c) onsiderable latitude in temporal proximity is particularly evident in cases involving assertions by very young children after a stressful experience ... (because) children of tender years are generally not adept at reasoned reflection and at concoction of false stories under such circumstances." Lancaster v. People, supra, Colo., 615 P.2d at 723 (citations omitted).

In the instant case, Travis Roark experienced two highly stressful series of events. Less than twelve hours before his statement, he was present while his father severely beat Christie Floyd over a period of about two hours. Shortly before his statement, he observed the emotional reaction of his father and Deborah Floyd to the discovery of Christie's death, and witnessed the ensuing arrival of the ambulance crew and the police. From the time the beating began until Travis left the apartment with Deborah Floyd, he was either in his father's presence or asleep. Finally, the statement was not triggered by questioning but by Deborah Floyd's statement that some boys had killed Christie, a story which Travis knew to be untrue. These circumstances are persuasively indicative that the challenged statement was spontaneous and produced by the state of excitement generated by the preceding events. We conclude that the trial court correctly received Travis' statement into evidence.


The defendant asserts that the trial court erred in admitting into evidence at his sanity trial certain statements that he made to the police during his interrogation at the police station. Before the questioning began, the defendant was advised of his Miranda 5 rights and elected to waive them. Initially, he answered the officers' questions, maintaining his innocence of any wrongdoing and blaming neighborhood children for Christie's injuries. Eventually he acknowledged having slapped her. Then, in response to an officer's urging that he tell about spanking the child, he said, "Why should I tell you about it when I can tell a jury about it." The defendant contends that this statement sufficiently evinced a wish to cut off questioning so that any information developed...

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