People v. Rodriguez, s. 92CA1741
| Decision Date | 07 April 1994 |
| Docket Number | 92CA1743,Nos. 92CA1741,s. 92CA1741 |
| Citation | 888 P.2d 278 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant and Cross-Appellee, v. Vincent M. RODRIGUEZ, Defendant-Appellee and Cross-Appellant. . III |
| Court | Colorado Court of Appeals |
Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Henry R. Reeve, Sp. Asst. Atty. Gen., Denver, for plaintiff-appellant and cross-appellee.
Lozow & Lozow, P.C., Bradley A. Lozow, Denver, for defendant-appellee and cross-appellant.
Opinion by Judge DAVIDSON.
The People appeal from the trial court's order vacating the judgments of conviction entered upon jury verdicts finding defendant, Vincent M. Rodriguez, guilty of one count of first degree murder by extreme indifference, two counts of attempted first degree murder by extreme indifference, and two counts of first degree assault by extreme indifference. Defendant cross-appeals from the judgments of conviction entered upon jury verdicts finding him guilty of one count of second degree murder, two counts of attempted second degree murder, and two counts of first degree assault with a deadly weapon. We affirm in part, reverse in part, and remand with instructions.
Defendant was a passenger in a sport utility vehicle, a Suzuki, which, while in route from a party in Commerce City to Denver, was driven past a party where a large crowd was milling about in the street. A number of party guests, many of whom were members of, or affiliated with, a gang known as the "Inca Boys," began to follow the Suzuki down the street. Defendant pointed a loaded revolver out of the passenger window and fired in the direction of the crowd.
Three of the party guests were struck by gunfire. One sustained injury to his thigh, another suffered injuries to his stomach and intestines, and the third died from injuries to his lungs and spinal cord.
After leaving the scene of the shooting, the driver returned to the party in Commerce City and left defendant there. The driver, joined by a friend, T.R., who had also attended the Commerce City party, then drove to T.R.'s apartment.
Police were able to obtain a description of the Suzuki from witnesses, including the distinctive insignia on the front and rear windshields. They were also able to obtain the name of T.R., who had been observed riding in the Suzuki earlier in the day. Upon arrival at T.R.'s address, police officers found the driver and T.R. at the apartment. After obtaining consent to search the residence and the Suzuki, police discovered a .22 caliber revolver and two boxes of ammunition in the residence and an unspent .22 caliber shell on the floor of the Suzuki.
Police detectives took videotaped statements from the driver and from T.R. The gun was taken and test fired at a police laboratory and the bullets compared with the one removed from the deceased victim's body. Although the bullets shared some essential characteristics, the bullet which killed the victim was damaged too severely to allow for a positive match. The bullets which injured the other two victims were lodged within their bodies and could not be removed safely.
The driver testified at trial that he had never seen the gun before. He further testified that, after bringing defendant back to the party in Commerce City, several persons whom he believed to be defendant's brothers instructed him to take the gun and dispose of it.
The surviving victims and other party guests testified that defendant was "throwing up gang signs" as the Suzuki passed the crowd and that, although they could not identify the shooter, several rounds were fired by a passenger in the Suzuki. Several party guests indicated they had seen another individual with a gun earlier, but none of them indicated that any other shots had been fired.
Defendant asserted at trial that the victims may have been struck by bullets from a gun fired by someone other than himself. He presented evidence from a witness who stated she had seen someone, not defendant, firing a gun out of a moving vehicle which did not match the description of the Suzuki. Another of defendant's witnesses testified that he had heard two shots from another direction several minutes before hearing the shots that came from the Suzuki.
Alternatively, defendant alleged that he acted in self-defense. He stated that he had fired the revolver into the air above the crowd because he was afraid that the hostile party guests, who might have mistakenly thought he was throwing "gang signs," would catch up to the car and attack him. He stated that he had heard a gunshot and therefore believed the crowd was armed. He testified that the driver took the gun from under the dashboard, gave it to him, and he then placed his head between his knees and fired the gun, which he believed to be pointed up into the air, in order to scare the crowd.
The jury returned verdicts of guilty of one count of first degree murder by extreme indifference and two counts of attempted first degree murder by extreme indifference. The jury also found defendant guilty of two counts of first degree assault by use of a deadly weapon and two counts of first degree assault by extreme indifference. The jury acquitted defendant of one count of first degree murder after deliberation and two counts of attempted first degree murder after deliberation, but returned verdicts of guilty on the lesser included offenses of second degree murder and attempted second degree murder.
The trial court concluded that dual murder and attempted murder convictions as to each of the three victims were impermissible and consequently vacated all extreme indifference verdicts. The trial court then merged the verdicts on first degree assault extreme indifference into the verdicts on first degree assault by use of a deadly weapon and sentenced defendant to 60 years in the Department of Corrections.
On appeal, the People contend that the trial court erroneously vacated the extreme indifference convictions. On cross-appeal, defendant's primary argument is that the verdicts returned were inconsistent. The issues are interrelated, so we will address them together. We agree with the People on both.
Defendant was charged with murder and attempted murder on theories of deliberation and extreme indifference. He was charged with first degree assault on theories of use of a deadly weapon and extreme indifference. The jury instructions and the verdict forms gave the jury the option, as to all counts, of a guilty verdict for any lesser included offenses.
Thus, the jury was instructed that, if it did not find that first degree murder after deliberation had been proven, it could find defendant guilty of the lesser included offense of second degree murder. It was similarly instructed that, if it did not find that first degree murder by extreme indifference had been proven, it could find defendant guilty of the lesser included offense of second degree murder. The jury was similarly instructed as to the attempted murder counts.
On the first degree murder by extreme indifference and attempted first degree murder by extreme indifference charges, the jury returned verdicts of guilty. On the first degree murder after deliberation and attempted first degree murder after deliberation charges, the jury returned verdicts of not guilty, but found defendant guilty of the lesser included offenses of second degree murder and attempted second degree murder.
Defendant's primary contention is that the jury was allowed to deliberate upon two inconsistent theories of first degree murder and attempted first degree murder. Specifically, he contends that the jury could not properly convict on the basis of one theory, extreme indifference, and also convict of a lesser included offense derived from the other theory, after deliberation. We disagree. Defendant misconstrues the relationship between second degree murder and first degree murder by extreme indifference.
Generally, the crimes of second degree murder and attempted second degree murder are, respectively, lesser included offenses of first degree murder or attempted first degree murder under any theory. See §§ 18-1-408(5)(a) and 18-1-408(5)(c), C.R.S. (1986 Repl.Vol. 8B); see e.g. People v. Thomas, 729 P.2d 972 (Colo.1986); Crespin v. People, 721 P.2d 688 (Colo.1986). And, contrary to defendant's contention, we specifically conclude that second degree murder is a lesser included offense of first degree murder by extreme indifference.
Both first degree murder by extreme indifference and second degree murder are committed "knowingly" and are thus general intent crimes. In People v. Marcy, 628 P.2d 69 (Colo.1981), our supreme court determined that first degree murder by extreme indifference and second degree murder were indistinguishable because both required an act performed knowingly resulting in death and because the additional element required for first degree murder, that this act be performed under circumstances manifesting extreme indifference to the value of human life, added nothing to the proscribed conduct to differentiate it from second degree murder.
In response, the General Assembly amended the statute to define first degree murder by extreme indifference as a knowing killing committed under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally. See Colo.Sess.Laws 1981, ch. 212, § 18-3-102(1)(d) at 973. Our supreme court has held that this change assured that the proscribed conduct is sufficiently distinguishable from that constituting second degree murder. See People v. Jefferson, 748 P.2d 1223 (Colo.1988).
A lesser included offense is one which is established by proof of the same or less than all the facts required to establish the offense charged. Section 18-1-408(5)(a), C.R.S. (1986 Repl.Vol. 8B). "In order to...
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