People v. Steele

• Decision Date: 18 April 1977
• Docket Number: No. 26974,26974
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sandra STEELE, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 6

563 P.2d 6

193 Colo. 87

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sandra STEELE, Defendant-Appellant.

No. 26974.

Supreme Court of Colorado, En Banc.

April 18, 1977.

Rehearing Denied May 9, 1977.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G Donovan, Sol. Gen., E. Ronald Beeks, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Gene A. Ciancio, Louis A. Weltzer, Denver, for defendant-appellant.

KELLEY, Justice.

The defendant appeals her convictions of first-degree murder ¹ and conspiracy to commit first-degree murder. ² We affirm.

Before the commencement of the trial, the parties stipulated that the victim, Larry Steele, the defendant's estranged husband, died of a bullet wound to the head inflicted by Robert Barr. The theory under which the defendant was charged, tried and convicted was that Barr had murdered Larry Steele at the instigation of the defendant. There was testimony from several different sources to substantiate the prosecution's theory of the case.

John Bryant testified that a month prior to the decedent's death he overheard a conversation between the defendant and Robert Barr in which the two were planning the murder of Larry Steele. At that time, Bryant heard the defendant tell Barr that her husband could be killed at either of two locations. Bryant further testified that on the day of the murder the defendant made several requests of Barr, Bryant and Nanette Hambeck, Bryant's girl friend, to drive to the decedent's residence to determine if he was home. Bryant testified that later the same day, after the defendant herself had returned from surveilling the decedent's home, she commented that Larry Steele was 'a sitting duck' and again asked Barr to kill Steele. At that time, she asked Brant to drive Barr to the decedent's residence.

Bryant also testified with regard to two different conversations which Barr had had with the defendant and subsequently related to Bryant. First, Bryant stated that after he had agreed to aid Barr, Barr told him that the defendant had promised Bryant an automobile for his efforts. Moreover, Barr was to receive free rent and an auto and, if he were apprehended, free support after his release from prison. Barr also stated that the defendant would receive a large sum of money from the decedent's insurance policies. Second, on the night of the murder, Barr called the defendant from a pay phone after he and Bryant had driven past the decedent's house several times without seeing him. After hanging up, Barr stated that the defendant had directed them to try once again. The two then returned to the decedent's residence at which time Barr shot and killed the decedent.

The testimony of Nanette Hambeck also supported the prosecutor's theory of the case. She stated that the defendant had, without giving a reason, asked her to surveil the decedent's home on one occasion. She further testified that after Barr had left with a rifle in his hands, she asked the defendant why she wanted her husband dead. The defendant replied that (1) she would receive an insurance settlement; (2) her husband had mlested her daughters; (3) he had attempted to steal her cars; and (4) he was taking too much moneyout of the business and could not be fired due to union complications. Finally, she testified that on the night of the murder, the defendant received a phone call from Barr during which she directed Barr to continue trying to get a clear shot at Larry Steele.

The testimony of Kent Summerhayes, another friend of the defendant, confirmed Bryant's testimony concerning the defendant's statement that the decedent was 'a sitting duck.' Summerhayes related that he too had surveilled the decedent's residence at the defendant's request and that the defendant had stated that she wished 'the son of a bitch' were dead.

The defendant generally denied the allegations made by the prosecution witnesses and claimed that several of her remarks had been misconstrued. In particular, she stated that she had not asked Barr to kill her husband.

The defendant first contends that the trial court erred in allowing Bryant to testify concerning the contents of conversations between the defendant and Barr, which conversations were later related to Bryant. She argues that the coconspirator exception to the hearsay rule is inherently unreliable and that she has been denied her sixth amendment right to confront witnesses against her.

We do not reach the defendant's contentions regarding the validity of the coconspirator exception. Even without those statements made by the defendant to Barr and subsequently related to Bryant, the evidence in support of the jury's verdict is overwhelming. Although the disputed statements corroborated the defendant's solicitation of Barr and Bryant to murder the decedent, their impact was merely cumulative, and error, If any, committed by the trial court was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). People v. O'Donnell, 184 Colo. 104, 518 P.2d 945 (1974). See People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973). Cf. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); People v. Craig, 179 Colo. 115, 498 P.2d 942 Cert. denied, 409 U.S. 1077, 93 S.Ct. 690, 34 L.Ed.2d 666 (1972); Oaks v. People, 161 Colo. 561, 424 P.2d 115 (1967). Likewise, the lack of opportunity to cross-examine Barr regarding his statements to Bryant constituted harmless error. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), Chapman v. California, supra.

The defendant next argues that the trial court erred in denying her motion for judgment of acquittal which was made after the jury's verdicts of guilty were returned. The defendant argues that since the prosecution made no showing of Barr's ability to form the specific intent to conspire to commit murder and to actually commit first-degree murder, her convictions must be reversed. In support of her argument, the defendant contends that Barr's mental condition was impaired so that he could not form the requisite specific intent to commit the crimes.

We do not agree with the defendant's conclusions. While this court has held that it is necessary to prove beyond a reasonable doubt the guilt of the principal as a prerequisite to convicting the accessory, Vigil v. People, 174 Colo. 164, 482 P.2d 983 (1971), we have also held that an accessory may be convicted of murder even if the principal is found not guilty by reason of insanity where it is shown beyond a reasonable doubt that the principal committed the act which resulted in the homicide. ³ People v. Jones, supra.

Even assuming arguendo that the defense could have shown Barr to be insane, and therefore unable to form the specific intent, the burden of proof required by Jones was clearly sustained by the prosecution. First, the parties stipulated that the decedent died of a gunshot would inflicted by Barr. Substantial evidence from several different sources proved beyond a reasonable doubt that Barr's action was premeditated. Moreover, the statutory requisites for first-degree murder and conspiracy with regard to the defendant were clearly met. There was competent testimony from two different witnesses with regard to the defendant's persistent efforts to have Barr kill her husband. See People v. Martinez, 187 Colo. 413, 531 P.2d 964 (1975). Barr was the instrumentality through which the defendant acted, but it is the defendant's intent, rather than that of Barr, which is in issue.

Viewing the evidence together with the stipulation in the light most favorable to the prosecution, we hold that the defendant's motion for acquittal was properly denied. People v. Young, Colo., 555 P.2d 1160 (1976); People v. Jones, Colo., 551 P.2d 706 (1975); People v. Trujillo, Colo., 543 P.2d 523 (1975); People v. Black, 185 Colo. 308, 523 P.2d 1402 (1974); People v. Jones, 184 Colo. 96, 518 P.2d 819 (1974); People v. Lankford, 185 Colo. 445, 524 P.2d 1382 (1974); People v. Schlepp, 184 Colo. 28, 518 P.2d 824 (1974). For similar reasons, we find the defendant's contention that the trial court erred in refusing to allow the introduction of evidence of Robert Barr's mental state as well as hospital records pertaining to Barr to be without merit.

The defendant's third assignment of error is that the trial court erred in refusing to dismiss the charges of first-degree murder and conspiracy to commit first-degree murder. She argues that the statute under which she was charged was repealed before her trial and that the statute which repealed the earlier statute failed to include a saving clause. Consequently, she contends that her convictions must be reversed.

We find no merit in the defendant's argument. The defendant was charged with the commission of a first-degree murder occurring on September 2, 1974, in violation of 1971 Perm.Supp., C.R.S.1963, 40--3--102. By referendum, that statute was subsequently repealed and reenacted prior to her trial. By its own terms, however, the reenacted statute ⁴ repealed the statute under which the defendant was charged only as to offenses committed on or after January 1, 1975. Accordingly, we hold that in regard to offenses committed before the effective date, the statute remained in effect, and the defendant was properly convicted under the prior statute.

The defendant next claims error from the admission of a color photograph showing the decedent's body subsequent to his death where the parties had stipulated as to the cause of death. She also claims that the court erred in allowing the testimony of Priscilla Taylor, the decedent's mistress and an eye witness to the murder. We find no error as to either of these contentions.

This court has frequently held that photographs are not rendered inadmissible merely because they reveal shocking details of the crime. See, e.g., Hampton v. People, 171 Colo. 153, 465 P.2d 394 (1970); ...