Whitman v. People

• Citation: 161 Colo. 110,420 P.2d 416
• Decision Date: 21 November 1966
• Docket Number: No. 21796,21796
• Parties: Joel K. WHITMAN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Supreme Court of Colorado

Page 416

420 P.2d 416

161 Colo. 110

Joel K. WHITMAN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 21796.

Supreme Court of Colorado, En Banc.

Nov. 21, 1966.

Rehearing Denied Dec. 12, 1966.

John J. Gaudio, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Robert C. Miller, Asst. Atty. Gen., State of Colorado, for defendant in error.

McWILLIAMS, Justice.

By direct information Joel K. Whitman and Gary Dewane Adamson were jointly charged with murder in the first degree, namely, the felonious, wilful and premeditated killing and murder of one Walter F. Hamilton. Whitman entered a plea of not guilty to this charge, and thereafter sought and obtained a trial separate from that of his codefendant Adamson. Upon trial, Whitman was convicted of murder in the first degree and the jury fixed his sentence at life imprisonment. By writ of error Whitman now seeks reversal of this judgment and sentence.

It was the People's theory of the case that under C.R.S.1963, 40--2--3 this was a so-called 'felony-murder' situation. This particular statute provides, in part, that a 'murder * * * which is committed in the perpetration or attempt to perpetrate any * * * robbery * * * shall be deemed murder in the first degree.'

Accordingly, the People offered evidence tending to establish that Adamson, at gunpoint, robbed the proprietor of a South Denver creamery of approximately one hundred dollars, this sum consisting of currency only. Prior to this robbery, Whitman and Adamson, who were then residing in the Colorado Springs area, had together driven to Denver in an automobile belonging to Whitman's sister. Although this was a controverted issue of fact, there nevertheless was evidence that the gun which Adamson used in the holdup had been given him by Whitman. During the robbery Whitman sat in the car which was parked around the corner from the aforementioned creamery.

As Adamson was leaving the creamery, two Denver police officers stopped their squad car, purely by chance, directly in front of this establishment. As the result of certain 'signaling' by the victim of the robbery, the two officers decided to follow Adamson, who proceeded on foot at a rather swift pace to the waiting car in which Whitman was sitting behind the steering wheel. Whitman then pulled away quickly from the curb and the officers proceeded to give chase. Midway through the chase, the officers noted currency coming from the window of the pursued vehicle. This chase was a high speed one, up to one hundred miles per hour, with the Whitman driven vehicle running half a dozen stop signs and several signal light controlled intersections.

The chase came to an abrupt and tragic ending at East First Avenue and University Boulevard. There, Whitman drove his vehicle into the intersection at a very high rate of speed and on a 'red' or 'stop' light. In so doing he struck another vehicle innocently proceeding through the intersection on a 'green' or 'go' light, and the driver of this other vehicle died from the injuries which he received in this violent collision.

Whitman's theory of the case was that he was an innocent victim of circumstances. His testimony was that he had no idea that Adamson intended to rob the creamery, and that in this regard Adamson had merely told him that he wanted to buy some cigarettes. Whitman denied that it was his gun that Adamson used in the robbery and testified that he actually didn't know that Adamson even had any weapon until Adamson returned to the car. Then, according to Whitman, Adamson pulled the gun on him and told him the police were on their trail. Whitman went on to testify that while he thereafter did drive the car at breakneck speed in an effort to elude the police, he did so only because Adamson 'put the gun in his ribs' and threatened his life.

It was on this general state of the record, with the aforementioned sharp dispute in the evidence, that the jury returned its verdict adjudging Whitman guilty of murder in the first degree and fixing his sentence at life imprisonment in the state penitentiary.

Whitman initially contends that this judgment and sentence must be reversed because, in his view, there was no evidence that he was a 'party' to any robbery, either as a principal or as an accessory thereto. In thus asserting, Whitman completely overlooks the People's evidence and apparently chooses, for obvious and understandable reasons, to look upon the evidence offered by him in his defense as being the only evidence in the record. In our analysis of the evidence the People very definitely made out a Prima facie case tying Whitman into the robbery as an accessory. C.R.S.1963, 40--1--12.

We agree with the general assertion that quite probably the evidence offered by Whitman, If believed by the jury, would have absolved him of any criminal responsibility in this entire transaction. In other words, if the jury believed that Whitman did not 'stand by' and aid, abet or assist, and if they were of the further view that he had not theretofore advised and encouraged the perpetration of the robbery, then he would not be guilty of any felony-murder.

The answer to all this, though, is that the jury obviously chose to Disbelieve Whitman's testimony in these several particulars, and by its guilty verdict indicated...