People v. Rodriguez, No. 91SA112

Docket NºNo. 91SA112
Citation914 P.2d 230
Case DateMarch 11, 1996
CourtSupreme Court of Colorado

Page 230

914 P.2d 230
The PEOPLE of the State of Colorado,
Plaintiff-Appellee/Cross-Appellant,
v.
Frank D. RODRIGUEZ, Defendant-Appellant/Cross-Appellee.
No. 91SA112.
Supreme Court of Colorado,
En Banc.
March 11, 1996.
As Modified on Denial of Rehearing
April 15, 1996.

Page 245

Appeal from the District Court, City and County of Denver; Honorable Federico C. Alvarez, Judge.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Robert M. Petrusak, Senior Assistant Attorney General, Criminal Enforcement Section, Denver, for Plaintiff-Appellee/Cross-Appellant.

David F. Vela, State Public Defender, Michael J. Heher, Deputy State Public Defender, Nora V. Kelly, Denver, for Defendant-Appellant/Cross-Appellee.

Page 246

Justice ERICKSON delivered the Opinion of the Court.

In 1986, the trial court 1 sentenced Frank Rodriguez to death for his participation in the kidnapping, robbery, rape, and murder of Lorraine Martelli. We affirmed the imposition of the death sentence, People v. Rodriguez, 794 P.2d 965 (Colo.1990) (Rodriguez IV ), and the United States Supreme Court denied certiorari. Rodriguez v. Colorado, 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991). Pursuant to Crim.P. 35, Rodriguez sought postconviction review of his death sentence. The district court granted relief in part, denied relief in part, and refused to vacate the death sentence. Both Rodriguez and the prosecution appealed. We affirm in part, reverse in part, and remand in part with directions.

I

Facts and Procedural History

On November 14, 1984, Rodriguez; 2 his brother, Chris Rodriguez; David Martinez; and Patricia Thomas participated in events which culminated in the brutal murder of Lorraine Martelli. The facts of the murder are set forth in People v. Rodriguez, 794 P.2d 965, 969-971 (Colo.1990) (Rodriguez IV ), cert. denied, 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991). 3 A jury convicted Rodriguez of first-degree murder, first-degree felony murder, first-degree sexual assault, first-degree aggravated motor vehicle theft, second-degree kidnapping, aggravated robbery, conspiracy to commit first-degree murder, conspiracy to commit second-degree kidnapping, conspiracy to commit first-degree aggravated motor vehicle theft, and five counts of using a deadly weapon during the commission of the above offenses. R., v. 3 at 545-558.

In a separate proceeding, Rodriguez' brother, Chris Rodriguez, was convicted of the following crimes: first-degree murder, first-degree sexual assault, aggravated motor vehicle theft, second-degree kidnapping, robbery, conspiracy to commit first-degree murder, conspiracy to commit second-degree kidnapping, and conspiracy to commit aggravated motor vehicle theft. People v. Rodriguez, 786 P.2d 472, 473 (Colo.App.1989), cert. denied, No. 89SC600 (Colo. Jan. 29, 1990). David Martinez was convicted of second-degree kidnapping and sentenced to twenty years. R., v. 67 at 105. The prosecution granted Patricia Thomas immunity in exchange for her testimony and did not charge her for her participation in the criminal episode. See R., v. 2 at 8.

Prior to the penalty phase of Rodriguez' prosecution, the trial court conducted a habitual criminal proceeding pursuant to section 16-13-103, 8 C.R.S. (1984 Supp.), and the jury found beyond a reasonable doubt that Rodriguez had been convicted of three prior felonies. R., v. 33 at 63-65.

At the penalty phase of Rodriguez' trial, the jury found that six statutory aggravating factors existed beyond a reasonable doubt: (1) committing murder while under a felony sentence of imprisonment; (2) intentionally killing a person kidnapped by him or by anyone associated with him; (3) intentionally killing a person in furtherance of an agreement to kill; (4) intentionally causing the death of a person in the course of or in furtherance of a felony or in his immediate flight therefrom; (5) killing in an especially heinous, cruel or depraved manner; 4 and (6)

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committing murder for the purpose of avoiding or preventing a lawful arrest or prosecution. R., v. 4 at 746-52; see § 16-11-103(6), 8A C.R.S. (1986). The jury further found that the mitigating factors did not outweigh the aggravating factors and sentenced Rodriguez to death. R., v. 4 at 753.

The trial court stayed the death sentence pending an automatic direct appeal, pursuant to section 16-11-103(7), 8A C.R.S. (1986), and C.A.R. 4(d). 5 The Colorado State Public Defender's Office represented Rodriguez on direct appeal. After four extensions of time to file an opening brief and nearly two years after the case had been docketed in this court, defense counsel filed a 138-page document entitled "Partial Opening Brief," with a protest that a complete brief could not be filed without an additional extension of time. 6 Am.R., v. 18 at 1-151. Rodriguez attached an appendix to the "Partial Opening Brief" which listed 102 additional issues which he claims he wanted to raise, but could not because of unreasonable time limitations and an inadequate record on appeal. 7 Am.R., v. 5 at 1219-1231.

On direct appeal, we affirmed the death sentence. Rodriguez IV, 794 P.2d 965. On February 11, 1991, Rodriguez filed a Crim.P. 35(b) motion for reduction of sentence, and, on February 21, 1991, the district court denied relief. Am.R., v. 4 at 823. On March 13, 1991, Rodriguez filed a notice of appeal in the court of appeals seeking review of the district court's denial of his Crim.P. 35(b) motion. Id. at 889-91. On March 28, 1991, we accepted jurisdiction over the appeal and granted Rodriguez' motion for a stay of execution. Id.

On March 25, 1991, Rodriguez filed a Crim.P. 35(a) and (c) motion in the district court and a motion to obtain the appointment of private counsel to investigate and litigate claims of ineffective assistance of counsel. Id. On April 12, 1991, the prosecution filed a motion to dismiss Rodriguez' motions on the ground that the district court lacked jurisdiction over the case due to the pendency of the Crim.P. 35(b) appeal in this court. Id. at 881. On April 19, 1991, Rodriguez filed a motion to withdraw the previously filed Crim.P. 35(a) and (c) motion. Id. at 888. On May 30, 1991, we ordered that the case be remanded to the district court for the limited purpose of setting a time frame to permit Rodriguez to file any and all postconviction claims relating to his conviction and sentence. Id. at 889-91. We further ordered that the district court conduct a hearing on all such claims that it deemed appropriate and issue a final ruling without unnecessary delay. Id. On July 8, 1991, the district court ordered that Rodriguez submit all post-trial motions by August 1, 1991. Id. at 897.

On August 1, 1991, Rodriguez filed a Crim.P. 35(c) motion for postconviction review of his death sentence which was over 700 pages and raised 319 claims for relief relating to the guilt and penalty phases of the trial and the direct appeal. See Am.R., vv. 11-13, 68. Rodriguez' postconviction motion also contained claims relating to ineffective assistance of counsel and newly discovered evidence.

On December 11, 1991, the district court appointed Richard Hostetler as independent counsel to investigate and litigate Rodriguez' claims of ineffective assistance of counsel.

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Am.R., v. 6 at 1486. On January 19, 1993, Hostetler filed a separate Crim.P. 35(c) motion claiming that Rodriguez received ineffective assistance of counsel during the guilt and penalty phases of his trial and on direct appeal. Am.R., v. 7 at 1631-1647. The district court held a hearing on Rodriguez' claims of ineffective assistance of counsel and, on October 7, 1993, denied relief. Id. at 1762-88.

On February 14, 1994, the district court ruled on Rodriguez' Crim.P. 35(c) motion that had been filed on August 1, 1991. The district court vacated Rodriguez' convictions for felony murder, conspiracy to commit second-degree kidnapping, and conspiracy to commit aggravated motor vehicle theft, but denied Rodriguez' motion to vacate the death sentence. R., v. 1 at 216-219. The district court denied all of Rodriguez' remaining postconviction claims, see id. at 152-222, but reserved ruling on the allegations of newly discovered evidence. Id. at 221-222. On March 17, 1994, the district court held a hearing on Rodriguez' claims of newly discovered evidence and denied relief. See R., v. 67 at 182-83.

Rodriguez now appeals the district court's denial of his Crim.P. 35(c) postconviction claims and its refusal to vacate his death sentence. Rodriguez' Opening Brief on this appeal is 419 pages and raises 151 issues. A list of these issues is attached as Appendix A. 8 Rodriguez also appeals the district court's denial of his claims alleging ineffective assistance of counsel. This issue was separately briefed on this appeal.

The prosecution cross-appeals, arguing that the district court erroneously vacated Rodriguez' convictions for felony murder, conspiracy to commit second-degree kidnapping, and conspiracy to commit aggravated motor vehicle theft.

The primary question on appeal is whether the district court erred in determining that Rodriguez' Crim.P. 35 motion did not warrant reversal and vacation of his death sentence. We conclude that the district court's vacation of Rodriguez' duplicative sentences and our remand to the district court of Rodriguez' conviction for first-degree sexual assault as a class 2 felony, see infra parts IX(A) and XIV, provide the only relief available to Rodriguez on the arguments presented in his Crim.P. 35 motions. Accordingly, we affirm in part, reverse in part, and remand in part with directions.

II

Issues Previously Litigated

A

The district court denied 110 of the 319 postconviction claims Rodriguez raised in his Crim.P. 35(c) motion, 9 holding that Rodriguez could not...

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276 practice notes
  • Ervin v. State, No. 73,137
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 13, 1999
    ...People v. Lowe, 660 P.2d 1261, 1269-1271 (Colo.1983)(murder after deliberation and felony murder) and People v. Page 808 Rodriguez, 914 P.2d 230, 284 (Colo.1996)(reaffirming Lowe ); Connecticut, State v. Chicano, 216 Conn. 699, 584 A.2d 425, 429-431 (1990), cert. denied, 501 U.S. 1254, 111 ......
  • People v. Dunaway, No. 02SC675.
    • United States
    • Colorado Supreme Court of Colorado
    • April 12, 2004
    ...a legally (not factually) erroneous theory of liability. Griffin, 502 U.S. at 52-56, 112 S.Ct. 466.; see also People v. Rodriguez, 914 P.2d 230, 273 (Colo.1996) (citing to James and holding that an instruction containing a legally inaccurate alternative theory of liability constituted plain......
  • State v. Jones, No. 20543.
    • United States
    • Supreme Court of Hawai'i
    • July 19, 2001
    ...Griffin on state law grounds); Ortega-Martinez, 881 P.2d at 234-35 (rejecting Griffin on state law grounds); People v. Rodriguez, 914 P.2d 230, 273 (Colo.1996) (citing James v. People, 727 P.2d 850 (Colo.1986) (rejecting Turner on state law grounds)); see also Bloomquist v. State, 914 P.2d ......
  • People v. Houser, Court of Appeals No. 17CA0972
    • United States
    • Colorado Court of Appeals of Colorado
    • August 27, 2020
    ...prejudice." People v. Chavez-Torres , 2016 COA 169M, ¶ 31, 410 P.3d 690, 696, aff'd , 2019 CO 59, 442 P.3d 843 ; see People v. Rodriguez , 914 P.2d 230, 255 (Colo. 1996). ¶ 43 "We review de novo a postconviction court's denial of a Crim. P. 35(c) motion without a hearing." People v. McGlaug......
  • Request a trial to view additional results
276 cases
  • Ervin v. State, No. 73,137
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 13, 1999
    ...People v. Lowe, 660 P.2d 1261, 1269-1271 (Colo.1983)(murder after deliberation and felony murder) and People v. Page 808 Rodriguez, 914 P.2d 230, 284 (Colo.1996)(reaffirming Lowe ); Connecticut, State v. Chicano, 216 Conn. 699, 584 A.2d 425, 429-431 (1990), cert. denied, 501 U.S. 1254, 111 ......
  • People v. Dunaway, No. 02SC675.
    • United States
    • Colorado Supreme Court of Colorado
    • April 12, 2004
    ...a legally (not factually) erroneous theory of liability. Griffin, 502 U.S. at 52-56, 112 S.Ct. 466.; see also People v. Rodriguez, 914 P.2d 230, 273 (Colo.1996) (citing to James and holding that an instruction containing a legally inaccurate alternative theory of liability constituted plain......
  • State v. Jones, No. 20543.
    • United States
    • Supreme Court of Hawai'i
    • July 19, 2001
    ...Griffin on state law grounds); Ortega-Martinez, 881 P.2d at 234-35 (rejecting Griffin on state law grounds); People v. Rodriguez, 914 P.2d 230, 273 (Colo.1996) (citing James v. People, 727 P.2d 850 (Colo.1986) (rejecting Turner on state law grounds)); see also Bloomquist v. State, 914 P.2d ......
  • People v. Houser, Court of Appeals No. 17CA0972
    • United States
    • Colorado Court of Appeals of Colorado
    • August 27, 2020
    ...prejudice." People v. Chavez-Torres , 2016 COA 169M, ¶ 31, 410 P.3d 690, 696, aff'd , 2019 CO 59, 442 P.3d 843 ; see People v. Rodriguez , 914 P.2d 230, 255 (Colo. 1996). ¶ 43 "We review de novo a postconviction court's denial of a Crim. P. 35(c) motion without a hearing." People v. McGlaug......
  • Request a trial to view additional results

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