Romero v. People
| Citation | 170 Colo. 234,460 P.2d 784 |
| Decision Date | 03 November 1969 |
| Docket Number | No. 23008,23008 |
| Parties | Leland Augustine ROMERO, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Supreme Court of Colorado |
John Ira Green, Alamosa, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Robert L. Hoecker, Asst. Atty. Gen., Denver, for defendant in error.
Leland Augustine Romero, defendant, was convicted of murder in the second degree and sentenced to a term of confinement in the Colorado Penitentiary. He is here on a writ of error.
The information charged that on November 9, 1965, in the County of Alamosa, defendant did feloniously, wilfully and of his premeditated malice aforethought, kill and murder one Patricia Romero. Patricia was the wife of the defendant.
Upon arraignment on December 2, 1965, defendant entered a plea of not guilty. Trial was begun on September 12, 1966, and was concluded on September 14, 1966, and in the evening of the same day the jury returned its verdict.
The defendant and deceased were married on June 14, 1963. Two children were born to this marriage and the deceased, at the time of her death, was six months pregnant. She was twenty-five years of age.
The domestic life of the couple was marked by frequent quarrels, mostly the result of defendant's jealous but unfounded suspicion that the deceased was seeing other men. A divorce action was pending at the time of her death and, since the latter part of July 1965, the Romeros had not been living in a common household. The deceased lived with her parents and the defendant at a nearby community. Nevertheless, during the separation the defendant and the deceased saw each other rather frequently. The defendant occasionally took Patricia out to dinner or a movie; they often spent week ends together. The defendant bought some food and clothes for his wife and their children. At times the defendant also gave Patricia money.
Shortly before midnight, November 8, 1965, the defendant drove to the home of Patricia's parents and parked in an alley behind the house. He tapped on the window of her bedroom and told her he wanted to talk to her. Patricia put on a housecoat and slippers and went outside. They stood and talked in the backyard for a moment, but because it was chilly they walked to his automobile and got into the front seat. She sat on the passenger side and Romero sat behind the steering wheel. They had a brief conversation before her death.
The defendant testified that they did not quarrel and that he did not threaten her. However, shortly after they entered the car, he removed a 22 caliber pistol from under the front seat and 'was playing with it.' While 'playing' with it, the gun discharged. The coroner's report discloses that the 'bullet entered just above the left ear penetrating the skull across to 3 inches above the right ear.' At the trial the coroner testified that Romero, at all times, maintained that he did not know the revolver was loaded; that the killing was accidental.
Immediately following the firing of the gun, the defendant heard Patricia 'groan'; her head fell back. He stated (Exhibit 8):
'Well, when she was shot I couldn't believe it and I grabbed for her and the blood--I felt something warm go down my hand and I yelled and went inside and I couldn't believe it.'
The defendant ran to the house, awakened his mother-in-law, Mrs. Suazo, and said, 'I shot Patsy.' The police were called and the police and an ambulance responded. The defendant was arrested, taken to the chambers of the trial judge, advised by the trial judge of his constitutional rights and, at his request, an attorney of his choice was summoned. Romero and his attorney conferred in private for forty-five minutes after which counsel, because of defendant's insistence that his act was purely accidental, stated, 'Why don't you go ahead and cooperate with the police.' This attorney did not represent Romero at the trial nor here.
In the presence of the attorney the defendant was interrogated by the police during the early morning hours of November 9, 1965. A court reporter was also present and the session was recorded. A complete transcript of the proceedings became the questioned Exhibit 8.
The defendant alleges eleven separate assignments of error which, because of the affirmance, will be separately stated and discussed.
Assignment (a). The Corpus Delicti For Second Degree Murder Was Not Proven.
In support of this contention, the defendant relies upon Cobianchi v. People, 111 Colo. 298, 141 P.2d 688, and Stull v. People, 140 Colo. 278, 344 P.2d 455. Cobianchi holds that
'* * * The corpus delicti in a murder case requires two elements, each of which must be proved: (1) Death as the result of an act performed, or a wound inflicted; (2) that such act was unlawfully performed, or such wound was unlawfully inflicted by another. * * *.'
Romero admits (1), but relies on his assertion that the gun was fired accidentally to negate (2). In response, the people urge that the element of Malice essential to second degree murder may be implied from the circumstances; that the evidence of marital discord and prior acts and threats of violence were sufficient to justify the trial court's submission of the issue to the jury. Such issue was clearly drawn and the jury resolved it adversely to the defendant.
The circumstances which support the jury's verdict, in addition to those already mentioned, will be apparent from evidentiary excerpts set forth in Assignment of Error II, which follows.
Assignment (b). The Court Erred In Admitting People's Exhibit 8 Into Evidence.
The defendant, in his brief, contends:
'* * * Exhibit 8 shows on its face the type of Police questions asked, many of them by unsubstantiated accusations and without place nor time involving arrests and conviction of the defendant in the Municipal Court of Alamosa * * *; that Attorney Henry Blickhahn while present at this Police Interrogation did not participate by asking any questions or making any objections although the questions that the Police Officers were asking are more prejudicial than the answers given by the defendant, Leland Romero; that said Exhibit 8 in its entirety was substantially prejudicial to the defendant and did nothing more than to inflame the minds of the Jury to such an extent that the defendant * * * did not and could not receive a fair and impartial trial at the hands of the Jury and the Jury acted on evidence contained in * * * Exhibit 8 that was incompetent, irrelevant, immaterial, inadmissible and unsupported.'
The defendant relies upon the following rule from Hawkins v. People, 161 Colo. 556, 423 P.2d 581, to sustain his position:
* * *.'
From an examination of Exhibit 8, it appears that neither the questions asked nor the answers given tended to show 'general depravity.' The challenged interrogation, as we view it, was designed to show defendant's Motive and Malice. In marital homicide cases any fact or circumstance relating to ill-feeling; ill-treatment; jealousy; prior assaults; personal violence; threats; or any similar conduct or attitude by the husband toward the wife are relevant to show Motive and Malice in such crimes. Berger v. People, 122 Colo. 367, 224 P.2d 228; 1 Wharton's Criminal Evidence § 175.
A summary of the interrogation indicates the relevance of the defendant's testimony when tested by Berger. The defendant and Patsy had been married approximately three years, during which period they had marital troubles of great intensity.
Early in the interrogation, in order to attempt to justify the cause of his jealousy which was responsible for admitted threats and beatings of his wife, the defendant explained:
'A Yes.'
At another point, the defendant admitted that he had threatened, if he 'ever found her with another man,' he would shoot her. On only one occasion did Romero claim that anyone had told him that Patsy 'was stepping out.' A man from Pueblo, working on a project in Alamosa, told Romero that he 'should watch out that he had seen (his) wife with somebody at another restaurant.'
Romero also claimed some of the manifestations of jealousy were provoked by rumors of certain nocturnal activities of another Patsy Suazo (his wife's maiden name). This provocation ended, however, from two to six weeks prior to the fateful event when, he asserts, he learned the true identity of the woman involved in the rumors. From that time forward 'things started going real smooth,' according to the defendant.
Romero's admissions in Exhibit 8 also Explained the threats and the beatings which he administered to his wife in this manner. He would accuse her of infidelity and threaten to kill her in order to induce her to admit the marital infractions;...
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