Opinion
No. 21010.
Decided May 3, 1965. Rehearing denied May 17, 1965.
Defendant was convicted of second degree murder and brings error.
Affirmed.
1. HOMICIDE — Instruction. In prosecution for homicide trial court was correct in refusing defendant's requested instruction on self-defense as it called for a subjective test by the jury rather than an objective test.
2. CRIMINAL LAW — Instructions — Statutory Form. It is proper to give an instruction in the statutory form.
3. Instructions — Language of Statute. It is a good rule to couch instructions in the language of the statute, although this is not the only type of instruction that is proper.
4. Instructions — Supplementary Clarification. Defendant is entitled to supplementary clarification when additional instructions are necessary adequately to inform a jury in a case; and instructions should be geared to the case being tried.
5. Self-Defense — Statement — Constitutional Right. Defendant has a constitutional right to have a lucid, accurate and comprehensive statement by the court to the jury of the law on the subject of self-defense from his standpoint.
6. Instruction — Statutory — Particular Case — Supplementary Instructions — Need — Jury. If statutory instruction does not fit particular case, or, if it is given and yet other supplementary instructions are needed to state defendant's positions, then such, when properly worded and tendered, should be submitted to the jury.
7. Instructions — Supplemental — Self-Defense — Statute. Where defendant tendered no supplemental instructions deemed necessary except an objectional one, and where trial court performed its duty in instructing jury as to self-defense in applicable statutory manner, there was no error as to this issue.
8. HOMICIDE — Specific Intent — Witnesses — Rebuttal — Testimony — Improper or Prejudicial. Where expert medical witness was permitted to testify on defendant's behalf that she was not capable of forming an intent to kill, and where court permitted People's witness on rebuttal to show intent by allowing him to testify that he had once cohabited illicitly with defendant and she had borne him two children and that she stabbed him with a knife when he came to pick up his clothes after permanently vacating their abode, held, the People had right to attempt to rebut defendant's alleged lack of capacity to form a specific intent; such testimony was neither improper nor prejudicial to defendant.
9. Witnesses — Cross-Examination — Mental State — Ill Feeling — Hostility — Limitation — Discretion of Court. Where court, over objection, permitted People to cross-examine defendant's witness who was a friend of victim concerning conversations had with him immediately prior to the homicide in question solely to show the mental state of the victim and the ill feeling or hostility between victim and defendant, its use being also later expressly so limited by the court's instruction, held, to have rejected the testimony for the purpose it was offered would have been an abuse of discretion and would have resulted in error.
10. WITNESS — Impeachment — Cross-Examination — Discretion of Court. Where defendant attempted to impeach her own witness on cross-examination where he had already testified concerning conversations had between himself and the victim indicating hostility between victim and defendant, held, trial court did not abuse its discretion when it refused permission to impeach him.
11. HOMICIDE — Instructions — Record — Trial Court — Error. Record indicates that it was not only proper, but also necessary for trial court to have instructed jury on all the degrees of murder and manslaughter as well as on self-defense, and trial court committed no error in this regard.
Error to the District Court of Boulder County, Hon. George McLachlan, Judge.
WILLIAM A. TRINE, ROGER E. STEVENS, for plaintiff in error.
DUKE W. DUNBAR, Attorney General, FRANK E. HICKEY, Deputy, AUREL M. KELLY, Special Assistant, for defendant in error.
PLAINTIFF in error, Dorothy Bustamonte, hereinafter called defendant, was convicted by a jury of second degree murder following the shooting of one Charles M. Dyson. She was thereafter sentenced to not less than ten years nor more than fifteen years imprisonment at hard labor.
Defendant urges five grounds for reversal which can be summarized as follows, to-wit:
(1) The trial court erred in refusing to submit to the jury original numbered Instruction No. 14 on self-defense which was later tendered and refused as defendant's Instruction No. 1;
(2) It was error to admit in evidence on rebuttal, over objection, testimony of one Frank Bernal, as to an alleged similar event when she asserts that it in fact was a separate and distinct occurrence unrelated to the present issue;
(3) It was error to admit, over objection, certain evidence labeled as hearsay, which consisted of what the deceased had purportedly told a friend, Joseph Wolney, Jr., the morning of the shooting;
(4) It was error not to allow defendant to impeach as a hostile witness her witness Joseph Wolney Jr.;
(5) It was error to submit charges of both first and second degree murder to the jury when allegedly no evidence existed to support a conviction thereunder, and the court erred in not directing an acquittal.
The record discloses the following pertinent facts, viz: defendant, aged 22 years, and Dyson, a dry wall contractor, were illegally cohabiting in Boulder, Colorado, from June 1962 to December 20 1962. On December 19, 1962, the couple quarrelled and as a result it was agreed that she would leave. This was later followed by Dyson ordering defendant "to pack her things and he would take her to Longmont [where she formerly lived] the next day." That evening, she partially packed her belongings before Dyson came home intoxicated. On the morning of the 20th, Dyson left the house early with his friend Joseph Wolney, Jr. After defendant was sure he was gone, she arose and continued to pack until a Mrs. Ruth Neptune appeared to demonstrate some reducing equipment. Dyson returned soon thereafter, apparently somewhat intoxicated. He was angry and upset. He demanded that Mrs. Neptune let him see defendant who was then partially disrobed and sitting in a chair in a downstairs room where a relaxacisor machine was attached to her body. After some argument, Dyson entered the room in which the defendant was sitting, and shortly thereafter began to curse, strike and beat her; he pulled the machine from her body and threw it towards the door where Mrs. Neptune was standing. Being terrified at his behavior, Mrs. Neptune soon departed in haste. Following her departure, Dyson threw a suitcase at defendant and again cursed her. He then started to slap her, grabbed her hair, threw her to the floor, put his knee on her chest and beat her again. She finally freed herself and ran upstairs pursued by Dyson. He then chased and continued to beat her as she fled from what is described as the north bedroom to the south bedroom.
During the fracas upstairs, Dyson threatened to kill defendant, and at one stage he went back downstairs but soon returned and demanded to know where his guns were. It appears that he was a hunter and owned two rifles and a pistol — the latter always kept loaded — which weapons he had left downstairs to clean, but which defendant had some time prior to the 20th taken upstairs to the north bedroom closet for storage. She testified that all the weapons were loaded then but that she had unloaded the rifles leaving a shell stuck in the chamber of one rifle. Fearing great harm from Dyson when he went downstairs, she took the pistol and put it on top of the dresser under a shirt, in the upstairs south bedroom. When he returned, she told him that it was in the closet in the north bedroom. Enraged at not having been able to locate it, he continued to strike her. She finally managed to escape to the south bedroom, after which she took the pistol from its hiding place and ran across the room. As Dyson came into the room after her, she told him to stop; but he tauntingly and threateningly continued to advance. She then fired the gun and the bullet hit his torso just above the pelvis; it, however, went through his body without striking any bone or vital part and apparently without any present effect on Dyson.
Following the first shot, Dyson said to defendant, "You are crazy," turned and started down the stairway which was just in front of the bedroom. Defendant testified that because she thought he was going to get some object with which to attack her she followed him to the top of the stairway and fired again when he was about halfway down the stairs. The second shot, which proved fatal, hit Dyson in the back of the head. It appears that at the time the only other weapon known to defendant was a bayonet which she had last seen downstairs in the kitchen; however, she did not recall where it was to this particular day.
After the shooting, and without knowing whether Dyson was dead, defendant fled to her grandparents' home in Longmont and told them what had happened. In due course she turned herself over to the police, cooperated fully in the investigation and gave them statements about the tragedy.
The undisputed testimony of Mrs. Neptune was that defendant had no bruises on her nearly nude body at the time of the relaxacisor demonstration. There was also other undisputed testimony to the effect that she had numerous fresh bruises on her arms and on one thigh, as well as a tender spot on her chest, after the shooting.
With the above facts in mind we turn to the alleged errors.
First, as to defendant's requested instruction on self-defense which the trial court refused. This lengthy instruction attempted to encompass within its borders many statements of law applicable to facts in evidence. It assertedly and obviously was copied almost verbatim from an instruction which appeared in Mr. Justice Hilliard's dissent in Winbern v. People, 116 Colo. 136, 152-53, 180 P.2d 516 (1947). In Winbern the majority of the court refused to review this instruction on procedural grounds; and it certainly did not approve it. Mr Justice Hilliard set it forth in haec verba and correctly remarked as to the final wording contained therein (i.e., letting the jury put itself in the place of the defendant) that it "* * * is indefensible, inexcusable, prejudicial, and wholly without precedent." He then discussed the instruction at some length and pointed out that the last part of it called for a subjective test by a jury and not an objective test. In the instant case the trial court was correct in refusing such an instruction when tendered.
The court did, however, submit to the jury its Instruction No. 13 in the statutory language relating to self-defense. In so doing it commented in effect that it felt this was all it should give in view of our decision in Vigil v. People, 143 Colo. 328, 353 P.2d 82 (1960) wherein we had stated that it was proper to give an instruction in the statutory form.
[3-6] So there will be no future misunderstanding of Vigil, however, we point out that there a quoted and given instruction on self-defense was held to be improperly worded for reasons set forth and we merely commented "* * * it has been stated to be a good rule to couch instructions in the language of the statute * * *." We did not thereby mean to imply that this is the only type of instruction that is proper. In fact, in Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962) we made it clear that a defendant is entitled to supplementary clarification when additional instructions are necessary adequately to inform a jury in a case; and, that instructions should be geared to the case being tried. In Young v. People, 47 Colo. 352, 355, 107 Pac. 274 (1910) we pointed out that a defendant has "a constitutional right to have a lucid, accurate and comprehensive statement by the court to the jury of the law on the subject of self-defense from his standpoint * * *." Thus, if the statutory instruction does not fit a particular case, or, if it is given and yet other supplementary instructions are needed to state a defendant's position, then such, when properly worded and tendered, should be submitted to the jury.
In the instant case the defendant tendered no supplemental instructions deemed necessary except the objectionable one described above. Since the trial court had performed its duty by the giving of Instruction No. 13 and the jury was thereby instructed as to self-defense in the applicable statutory manner, no error appears as to this issue.
As to the second point for reversal dealing with Frank Bernal's testimony, we face a different problem.
It appears that Bernal and defendant had once illicitly lived together for approximately three years in Longmont and that she bore him two children during that period. On rebuttal, over objection, Bernal was permitted to testify that approximately twenty months prior to the shooting he was vacating their abode for good; and that when he came with relatives to pick up his belongings, she stabbed him with a knife as he was leaving. At the time of the stabbing she was again pregnant, had no food in the apartment and had a baby to care for.
This testimony had first been offered in the People's case in chief to show intent or motive, but was rejected with the right to renew the offer at the close of defendant's case. On rebuttal it was permitted by the trial court (under a limiting admonishment to the jury) for the limited purpose of showing intent but no motive. Such a showing of intent was important to the People's case because of prior testimony by one of defendant's witnesses, a Dr. Dean James Plazak, who appeared as an expert practicing neuro-psychiatrist. Dr. Plazak had testified that he had examined the defendant beginning on December 22, 1962, in regard to whether she was capable on December 20th of "forming an intent or design to kill Charles Dyson. "His conclusion was that defendant did not have the ability to form such an intent and that she suffered from what is termed a "repetition compulsion." Dr. Plazak stated that this condition makes a person compelled to repeat; and, that it occurs in response to certain stressful circumstances which are similar to or exactly like those to which the person in the past has been repeatedly exposed. In the instant case, the evidence is that defendant's mother had killed her father when defendant was a small child, and as defendant grew up it appears she had been disciplined many times by being told that she too would some day kill someone under the same circumstances.
Defendant urges that there is no connection or similarity between her two felonious assaults and, therefore, Bernal's testimony was inadmissible under the general rule prohibiting the use of such evidence. E.g., Kostal v. People, 144 Colo. 505, 357 P.2d 70 (1960). She also claims this cannot come under any of the long recognized exceptions to the rule. See, e.g., Warford v. People, 43 Colo. 107, 96 Pac. 556 (1908); Dockerty v. People, 74 Colo. 113, 219 Pac. 220 (1923); Webb v. People, 97 Colo. 262, 49 P.2d 381 (1935); Rice v. People, 55 Colo. 506, 136 Pac. 74 (1913); Kostal, supra; and Melville, Manual of Criminal Evidence, page 9 (2d Ed. 1954).
We do not agree with defendant. The People had the right to attempt to rebut her alleged lack of capacity to form a specific intent. Castro v. People, 140 Colo. 493, 346 P.2d 1020 (1959). And, Bernal's testimony was not rendered improper because it happened to include evidence of another offense. Perry v. People, 38 Colo. 23, 29, 87 Pac. 796 (1906). In addition, to warrant reversal, it would have to appear that the rebuttal testimony was prejudicial to defendant. Clearly such is not the case here for Bernal's testimony tended to substantiate the hypothesis of the psychiatrist that defendant suffered from repetition compulsion.
The third issued is whether Joseph Wolney. Jr.'s testimony of prior conversations with the deceased was admissible.
The record shows that the defendant called Wolney, who was identified as one of Dyson's best friends, as her own witness for a limited purpose after he had first testified on another matter for the people. On this direct examination he testified as to liquor being purchased and drunk by Dyson and others on the morning of the 20th when he was present. He stated that Dyson was not intoxicated; however, he didn't remember exact details. He himself was drinking beer at this stag event which took place away from defendant's home. No questions were asked on direct examination about quarrels with defendant or what had happened the night before. On cross examination, nevertheless, over the objections of defendant, the court permitted the People to question Wolney and elicit answers concerning conversations between Wolney and Dyson on the morning of the 20th such as that Dyson was then "going home to put her [defendant] out"; that "He had a quarrel the night before"; and, that "The conversation was, he had an argument the night before, and that he had to slap Dorothy to take a gun that she was loading away from her, and that he was going home and put her out."
The testimony about quarreling, of course, merely substantiated defendant's own testimony about the events of the previous evening. Defendant, nevertheless, objected to that evidence coming from Wolney as well as his statement about a gun as hearsay.
Was such testimony properly admitted? Since it was not a witness testifying as to what he had heard either the decedent or defendant tell the other we need not determine its admissibility on that basis. Not, need we determine whether it was close enough in time so as to be part of the res gestae, as urged by the People. Here the court admitted the evidence solely to show the "mental state of the victim and ill feeling or hostility between decedent and defendant." Its use was also later expressly so limited by the court's Instruction No. 18; and, the determination as to its admissibility was largely within the discretion of the trial court. To have rejected the testimony for the purpose it was offered here would have been an abuse of discretion and would have resulted in error. See, e.g., Bershenyi v. People, 71 Colo. 432, 434, 207 Pac. 591 (1922). The applicable instruction here properly restricted the use of the evidence to its limited purpose. Thus, no error can be predicated on Wolney's answers.
The fourth ground of alleged error concerns defendant's attempt to impeach Wolney on re-direct examination after he had testified to the matters discussed under the third ground for reversal.
At the time of this request, counsel and the court left the court room and in chambers the trial court gave defendant's attorney's full opportunity to demonstrate why the witness was hostile. They, however, were not able to show that they were surprised by Wolney's testimony for they had known prior to calling him that he might testify as he did. Their objection was principally that he had told them or others this version along with other different versions of defendant's remarks. Wolney, of course, was defendant's witness. None of his answers on direct examination were hostile. The objection is to the cross-examination and to the court's halting the re-direct examination when it started as the cross-examination of defendant's own witness. The People correctly point out on this writ of error that counsel's alleged "surprise" was not as to the facts elicited, but rather that the court permitted the witness, to testify to alleged known statements of decedent. We find no abuse of discretion when the trial court refused permission to impeach him.
Lastly, was there error in submitting to the jury instructions on both first and second degrees of murder? Also, was it error as urged in this connection, to deny defendant's Motion For Directed Verdict Of Acquittal: and, further, should a judgment Non Obstante have been entered because allegedly the verdict was contrary to the weight of the evidence and was assertedly the result of prejudice or passion, as assertedly is demonstrated by a review of the evidence as contained in the record?
Here the true essence of the case is what did or would a jury believe as to defendant's true motive or intent in firing the second and fatal shot at Dyson as he was going away from her and down the stairs? If it believed she still feared for her life and that Dyson was seeking the bayonet or some other weapon to continue the fray, and that she had no way to retreat, the jury might well have found her plea of self-defense justified; if, on the other hand, it believed she was not justified in firing the second shot because Dyson was in fact feeling, it might have found her guilty of first degree murder. And, in between these two extremes were the second degree and manslaughter charges which the court properly instructed on.
From this record we must conclude that it was not only proper, but also necessary for the trial court to have instructed on all the degrees of murder and manslaughter as well as on self-defense, and no error occurred in this regard.
The judgment is affirmed.
MR. JUSTICE DAY and MR. JUSTICE FRANTZ dissent.