People v. Shaw

• Decision Date: 01 June 1982
• Docket Number: No. 81SA203,81SA203
• Citation: 646 P.2d 375
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert William SHAW, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 375

646 P.2d 375

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v.Robert William SHAW, Defendant-Appellant.

No. 81SA203.

Supreme Court of Colorado, En Banc.

June 1, 1982.

As Modified on Denial of Rehearing June 28, 1982.

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

Lee Jay Belstock, Denver, for defendant-appellant.

QUINN, Justice.

The defendant, Robert William Shaw, who was convicted of second degree murder, section 18-3-103, C.R.S.1973 (1978 Repl.Vol. 8), asserts in this appeal ¹ several grounds for reversal, including the court's refusal to submit the lesser offenses of reckless manslaughter and criminally negligent homicide to the jury.We conclude that there was evidence to support the submission of these offenses to the jury and the court's failure to do so constitutes reversible error requiring a new trial.Although this disposition renders it unnecessary to consider other issues raised by the defendant, ²we nevertheless elect to address a matter most likely to arise upon retrial-that is, whether the routine destruction of original notes relating to a prosecution witness's statement to a police detective violated due process of law so as to require the court to strike the trial testimony of the witness and of the detective relating to the prior statement.

I.

On January 23, 1979, the body of Dale Stubblefield was found in a remote area on the outskirts of the town of Agate in Elbert County, Colorado.The cause of death was determined to be loss of blood from internal injuries to the chest region secondary to multiple gunshot wounds.No wallet or other identification was found on the body and the pockets of the victim's trousers were pulled outwards.A subsequent police investigation led to the defendant's arrest and trial on charges of first degree murder after deliberation, ³ felony-murder, ⁴ robbery, ⁵ and attempted robbery, ⁶ based on the fatal shooting of Stubblefield on January 16, 1979, in Arapahoe County, Colorado.

The prosecution's evidence established the following events leading to Stubblefield's death.Stubblefield, who previously had worked at the defendant's Silco service station in Aurora, was out of work and living with Brenda Paulk on the day of the shooting.On January 13the defendant had $430 stolen from his home, and the next day he mentioned to a friend, Tim Rodman, that he believed Stubblefield had taken the money.Stubblefield had occasionally visited the defendant at his home, and during a January 14 visit the defendant asked him and others present if they knew anything about the theft.

According to Brenda Paulk, Stubblefield left his home at 10:30 a. m. on January 16, carrying a wallet with identification cards but no money.He was without transportation at this time because he had left his car at the defendant's home for some mechanical repairs.Paulk never saw Stubblefield again.

Anita Soffa, who was a reluctant prosecution witness, testified that during the morning hours of January 16she was at the defendant's home with Royal Foreman, Stubblefield and the defendant.The four talked about going to a race track to drag race, and eventually she drove off with the defendant in his vehicle while Foreman and Stubblefield drove in Foreman's pickup truck.After the four stopped at Foreman's apartment for beer, they continued their trip and eventually took a dirt road to a hilly uninhabited area some distance from Aurora.The defendant, after asking Soffa to remain in the car, grabbed a gun from underneath the car seat and left the vehicle.A short time later Foreman came up to the vehicle and said "Annie you better get out of her to go get help."Soffa backed up the car over the dirt road, parked it near some oil tanks, and after turning on the radio heard four popping sounds.Later Foreman and the defendant drove up behind her.Foreman asked her to drive his truck back to town.She drove the truck to the defendant's home, and the defendant and Foreman arrived there about two hours later.

The prosecution elicited testimony from Soffa and a police detective, Alan Duer, about a statement given by her to the detective on February 22, 1979, in exchange for a prosecutorial promise of immunity.In her statement Soffa told the detective that on the trip to the race track she and the defendant smoked a "joint" and the defendant did not appear nervous nor did he talk about Stubblefield.She also stated that about a week after January 16, after mentioning to the defendant her awareness of the shooting, he told her that "he fired the first shot to scare Dale (Stubblefield), to find out if he had ripped him off."Soffa also stated to Detective Duer:

"I asked Bob where he shot him and Bob replied that the first shot was in the heart so that Dale would not suffer.Then Bob said he had shot Dale once in the head.Bob told me he shot Dale a total of three times."

Notes were made of Soffa's statement by both Detective Duer and a police secretary who was present during the interrogation.A summary of Soffa's statement was prepared and Duer's notes as well as those of the secretary were destroyed.The summary was made available to Soffa and her attorney.⁷

Soffa admitted during her trial testimony that the summary, which she had the opportunity to review after its preparation, was an accurate representation of her statement to Detective Duer.According to the detective's testimony, the notes were destroyed because:

"(w)e felt they had no value.It is standard procedure once your notes are reduced to a written report and you read the report and concur with its authenticity, then the notes are not relevant and we destroy them."

Defense counsel moved to strike the testimony of Soffa as well as the testimony of Detective Duer relating to Soffa's statement.⁸The court denied the motion, concluding that the defendant had not been prejudiced by the destruction of the notes.

The prosecution also presented testimony from Don Morgan, a friend of the defendant, about admissions made to him by the defendant, wherein the defendant stated that "Dale has been shot, Dale was dead ... the body would not be found," and "there wouldn't be any ID on (his) body."On February 20, 1979, a search warrant for the defendant's home was executed.A .25 caliber automatic pistol was seized and subsequent laboratory testing identified it as the weapon which caused Stubblefield's death.

The defendant testified in his own behalf.He related that shortly before the shooting he had lost his service station due to financial difficulties and that his wife had left him.He also admitted to a long history of drug abuse which had progressed to a daily habit during this period of his life.Three days before the shooting, on January 13, he learned that $430, which he had saved to begin paying off debts, had been stolen from his home.When Stubblefield came to his house the next day the defendant mentioned to him the theft of the money, since Stubblefield knew where the defendant kept his house key and was not above his suspicion.The defendant described his consumption of a large quantity of amphetamines as well as some marijuana and beer on the day of the shooting.Later in the day Royal Foreman stopped by his house and suggested a trip to the race track.Stubblefield, who was present, and Anita Soffa, the defendant's girlfriend, agreed to go along.

During the trip the defendant started to think about his debts, his wife, the recent loss of money and numerous other problems.He became lost and found himself on a dirt road leading to a large field.By the time he stopped near the field, he had decided to kill himself.He then described the events immediately surrounding the shooting.He took a gun from under the seat of his car and walked down the dirt road past Foreman's truck.Foreman called out to him and the defendant turned around, fired a warning shot, and warned Foreman that he would not be stopped.The defendant continued walking down the road and suddenly felt his arms pinned from behind.The defendant then testified:

"I can remember turning and struggling with somebody and then pushing them away ... I didn't care who it was.I didn't know who it was ... I recall firing the gun but I don't remember exactly what sequence ... I don't recall the motion of my hand firing the gun ... like I say, all I remember was pushing away; I was pushing away from whoever it was and then, like I say, I heard the explosion.I didn't really remember the actual muzzle action or pulling the trigger or feeling the gun in my hand ... I looked down and I saw Dale, then I realized who it was and what had happened ... I can remember still wanting to achieve my purpose, you know.I put the gun to my mouth and I pulled the trigger and there was no more shells ... I can remember that because I burned my lips.I had burned my bottom lip on the gun."

The defendant described how he accompanied Foreman back to his car and asked Soffa to drive Foreman's truck home.After Soffa left, the defendant and Foreman retrieved Stubblefield's body, placed it in his car and took it to a field in Elbert County.

At the conclusion of the evidence the defendant submitted instructions on reckless manslaughter and criminally negligent homicide.The court rejected these instructions and submitted the case to a jury on first degree murder after deliberation, felony murder, second degree murder, robbery and attempted robbery.The jury returned a guilty verdict to second degree murder.The court sentenced the defendant to a term of 38 to 50 years and this appeal followed.

II.

We first consider the trial court's refusal to instruct on the lesser offenses of reckless manslaughter and criminally negligent homicide.In a long line of caseswe have consistently held that the refusal to instruct on a lesser included offense in a...