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People v. Draper.

2021 COA 120. No. 18CA0488.  Jury Instructions—Universal Malice—Voluntary Intoxication—Uniform Mandatory Disposition of Detainers Act—Consolidation—Hearsay—Equal Protection.

September 9, 2021


Police found defendant’s wife A.D. in her apartment, dead from gunshot wounds. The next day, defendant carjacked a car while brandishing a gun. While driving that car, defendant shot at other occupied cars and hit at least three. Police arrested defendant, and during the search incident to arrest, they found cocaine in his pocket. Police also found two guns in the car, and according to expert testimony at trial, one of them was the gun used to murder A.D. A jury found defendant guilty of three counts of attempted extreme indifference murder; the lesser included offense of attempted reckless manslaughter; three counts of the lesser nonincluded offense of felony menacing; aggravated robbery; aggravated motor vehicle theft; felony menacing; vehicular eluding; possession of a controlled substance by a special offender; and the lesser nonincluded offense of illegal discharge of a firearm. As to A.D., the jury also found defendant guilty of second degree murder.

On appeal, defendant argued that the trial court erred by failing to instruct the jury on manslaughter, criminally negligent homicide, and attempted criminally negligent homicide. Here, the evidence made it impossible for a reasonable jury to find a culpable mental state other than intentional or knowing, so the court did not abuse its discretion by denying defendant’s requested instructions on manslaughter and criminally negligent homicide. Further, defendant’s own defense theory was that he shot at other cars in an effort to commit “suicide by cop,” so defendant acknowledged that he acted at least knowingly. Therefore, the court correctly rejected an instruction on attempted criminally negligent homicide.

Defendant also argued that the trial court erred by refusing to instruct the jury that it could consider evidence of his voluntary intoxication when determining whether he acted with extreme indifference and universal malice, which are elements of attempted extreme indifference murder. However, specific intent is not an element of attempted extreme indifference murder, and the defense of voluntary intoxication is unavailable by statute.

Defendant further argued that the trial court reversibly erred by refusing to define universal malice. Defense counsel’s tendered definition of universal malice was not a correct statement of the law because it did not accurately reflect the Colorado Supreme Court’s most recent definition of the term. Therefore, the trial court did not abuse its discretion by refusing the tendered instruction. However, because “universal malice” does not have a common meaning or understanding, the trial court erred in not instructing the jury on the term’s definition consistent with the Court’s most recent definition. Nevertheless, because the evidence that defendant acted with universal malice was overwhelming, any error was harmless beyond a reasonable doubt.

Defendant also contended that the prison superintendent’s failure to promptly inform him of his rights under the Uniform Mandatory Disposition of Detainers Act (UMDDA) required that all his charges be dismissed or, alternatively, that a hearing be held on his UMDDA claim. Here, the superintendent informed defendant of his UMDDA rights approximately three months after the date of detainer, so automatic dismissal was not warranted. Further, the delay was not prejudicial, and defendant’s trial began within the 182-day deadline. Therefore, defendant was not entitled to UMDDA relief.

Defendant further contended that the trial court abused its discretion by consolidating the separately filed cases involving the murder of A.D. and the charges arising from defendant’s carjacking rampage. However, the cases were based on connected acts, and most of the evidence was cross-admissible as direct evidence of guilt. Accordingly, the trial court did not abuse its discretion by consolidating the cases.

Defendant further argued that the trial court violated his constitutional right to confrontation and state evidence rules by admitting hearsay statements made by A.D. The inculpatory value of the admitted evidence completely overshadowed the inculpatory value of the challenged CRE 807 and 404(b) evidence. Therefore, the trial court’s erroneous admission of certain testimony was harmless, and even if other challenged CRE 807 or 404(b) evidence was improperly admitted, any error was also harmless. Further, A.D.’s statements were not testimonial, so the trial court did not abuse its discretion in admitting them.

Lastly, defendant contended that his convictions for attempted extreme indifference murder were unconstitutional. He maintained that attempted extreme indifference murder and illegal discharge of a firearm proscribe the same conduct but impose different penalties and thus violate equal protection. However, there are substantial differences between the elements of these crimes. Accordingly, there is an intelligent standard to distinguish the crimes that justifies the difference in penalty and consequently no equal protection violation.

The judgment of conviction was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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