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SUPREME COURT, STATE OF
COLORADO
Ralph L. Carr Judicial Center
2 East 14th Avenue
Denver, CO 80203
Certiorari to the Colorado Court of Appeals
Case No. 06CA1875
ANGELO EMILIO MONTOYA
Petitioner
v.
THE PEOPLE OF THE STATE OF
COLORADO
Respondent
Douglas K. Wilson,
Colorado State Public Defender
ELIZABETH GRIFFIN, #22218
1300 Broadway, Suite 300
Denver, CO 80203
Phone: (303) 764-1400
Fax: (303) 764-1479
Email:
Case Number: 12SC832
REPLY BRIEF OF DEFENDANT-PETITIONER
DATE FILED: March 2, 2016 3:31 PM FILING ID: 729B7BB4DA4E8 CASE NUMBER: 2012SC832
i
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of C.A.R.
28 and C.A.R. 32, including all formatting requirements set forth in
these rules. Specifically, the undersigned certifies that:
This brief complies with the applicable word limit and formatting
requirements set forth in C.A.R. 28(g).
It contains 5,571 words.
I acknowledge that my brief may be stricken if it fails to comply with
any of the requirements of C.A.R. 28 and C.A.R. 32.
_________________________________
ii
TABLE OF CONTENTS
Page ARGUMENT I. The prosecution did not prove attempted extreme-indifference murder or accessory to murder beyond a reasonable doubt. ............................................................................. 3 A. Attempted extreme-indifference murder ....................... 3 1. The prosecution was required to prove that
Montoya knowingly engaged in conduct strongly corroborative of the firmness of his purpose to knowingly cause the death of another. ................................................................. 4
2. The prosecution was required to prove that
Montoya knowingly engaged in conduct strongly corroborative of the firmness of his purpose to commit a killing act, the nature and circumstances of which demonstrated his willingness to take life indiscriminately, i.e., without knowing or caring who the victim may be or without understandable motive or provocation. ........................................... 9
3. The prosecution was required by federal
and state due process to disprove self-defense beyond a reasonable doubt. ................... 11
4. The prosecution failed to prove attempted
extreme-indifference murder, including disproof of self-defense. ....................................... 16
B. There was insufficient evidence of accessory
(after the fact) to murder. ............................................ 21 II. Even if the prosecution proved Mr. Montoya was an accessory (after the fact) to murder, that conviction must be vacated because one person may not be convicted of both committing and being an accessory (after the fact) to the same murder. .................................................................................. 26 CONCLUSION ............................................................................... 30 CERTIFICATE OF SERVICE ........................................................ 31
iii
TABLE OF CASES
Barreras v. People, 636 P.2d 686 (Colo.1981) ................................ 24
Candelaria v. People, 148 P.3d 178 (Colo.2006) ............. 5,6,7,8,9,11
Clark v. Martinez, 543 U.S. 371 (2005) ......................................... 26
Doubleday v. People, 364 P.3d 193 (Colo. 2016) ............................ 27
Doubleday v. People, 2016 CO 3 .................................................... 15
Hye v. State, 162 So. 3d 750 (Miss. 2015) ................................. 21,22
In re Winship, 397 U.S. 358 (1970) ................................................ 10
Jones v. United States, 526 U.S. 227 (1999) .................................. 26
Longinotti v. People, 102 P. 165 (Colo. 1909) ................................ 11
Martin v. Ohio, 480 U.S. 228 (1987) ......................................... 12,13
Morse v. People, 168 Colo. 494 (Colo. 1969) .................................. 23
Palmer v. People, 964 P.2d 524 (Colo. 1998) ................................... 5
People v. Butler, 251 P.3d 519 (Colo. App. 2010) .......................... 14
People v. Castro, 657 P.2d 932 (Colo. 1983) ................................. 4,5
People v. District Court, 964 P.2d 498 (Colo. 1998) ...................... 28
People v. Duncan, 109 P.3d 1044 (Colo. App. 2004) ...................... 23
People v. Ellis, 30 P.3d 774 (Colo.App.2001) .................................. 5
iv
People v. Garcia, 2012 COA 79, ¶35 .............................................. 23
People v. Gonzales, 666 P.2d 123 (Colo.1983) ............................... 10
People v. Gross, 287 P.3d 105 (Colo. 2012) .......................... 11,14,15
People v. Hickman, 988 P.2d 628 (Colo.1999) ............................... 27
People v. Jefferson, 748 P.2d 1223 (Colo.1988) ....................... 4,9,11
People v. Jennings, 237 P.3d 474 (Cal. 2010) ................................ 26
People v. Lacallo, 2014 COA 78 ..................................................... 23
People v. Marcy, 628 P.2d 69 (Colo.1981) .......................... 4,5,6,8,28
People v. McCoy, 2015 COA 76, ¶37 ......................................... 12,23
People v. McKimmy, 2014 CO 76 ................................................... 29
People v. Nguyen, 900 P.2d 37 (Colo.1995) ................................... 28
People v. Peay, 5 P.3d 398 (Colo. App. 2000) ................................. 23
People v. Pickering, 276 P.3d 553 (Colo.2011) ..................... 11,14,15
People v. Randell, 2012 COA 108, ¶30 .......................................... 23
People v. Ray, 109 P.3d 996 (Colo. App. 2004) ................................ 5
People v. Richardson, 983 P.2d 5 (Colo. 1999) ............................... 28
People v. Sandoval, 2016 COA 14, ¶30 .......................................... 23
People v. Serra, 361 P.3d 1122 (Colo. App. 2015) .......................... 23
v
People v. Stewart, 55 P.3d 107 (Colo. 2002) .................................. 28
People v. Thomas, 729 P.2d 972 (Colo. 1986) .................................. 5
People v. Wilder, 2016 COA 23, ¶4 ................................................ 14
People v. Yeager, 513 P.2d 1057 (Colo. 1973) .................................. 6
Ratzlaf v. United States, 510 U.S. 135 (1994) ................................. 5
Sec. Life & Acc. Co. v. Heckers, 495 P.2d 225 (Colo. 1972) ............. 6
Smith v. United States, 133 S.Ct. 714 (2013) ................. 12,13,14,15
State v. W.R., Jr., 336 P.3d 1134 (Wash. 2014) ........................ 12,13
United States v. Westbrooks, 780 F.3d 593 (4th Cir. 2015) .......... 13
West v. People, 341 P.3d 520 (Colo. 2015) ....................................... 4
TABLE OF STATUTES AND RULES
Colorado Revised Statutes Section 2-4-201(a),(c), C.R.S. ................................................. 26 Section 18-1-407(2),C.R.S...................................................... 15 Section 18-3-102(1)(d),C.R.S. .................................................. 4 Section 18-8-105(1),C.R.S...................................................... 24 Section 18-8-105(3),C.R.S...................................................... 24 Section 18-8-105(4),C.R.S...................................................... 24 Section 18-8-105(5),C.R.S...................................................... 24 Section 18-8-105(6),C.R.S...................................................... 24
CONSTITUTIONAL AUTHORITIES
United States Constitution Amendment V ........................................................................ 10 Amendment XIV .................................................................... 10
vi
Colorado Constitution Article II, Section 3 ............................................................... 15 Article II, Section 6 ............................................................... 28 Article II, Section 16 ............................................................. 10 Article II, Section 25 ........................................................ 10,28
1
In response to the State’s Answer Brief, Mr. Montoya submits this
Reply Brief.
The trial court imposed six consecutive years, not three, for the
accessory conviction.
Regarding the facts, the State twice claims the evidence
established that “five of the ten shots” fired by Montoya and Duran “hit
the vicinity of the window of [Barton’s] bedroom” where the victim was
located. Answer Brief, p.6,27 That is incorrect. The first record citation
provided by the State is to testimony about a bullet in the siding of the
house across the street from the party (which was not associated with
the Glock). (XII,p.244-46) The next is to testimony about marks on the
downspout and exterior wall around the window, and bullet fragments
in two locations—the window frame and the bottom of the downspout.
(XII,p.261-68) The next is to Agent Clayton, who testified that only
three of those marks were positive for lead and thus impacts—one to
the left of the window, one to the right, and one to the downspout.
(XIII,p.192-94) But Clayton then opined that one bullet hit both the
2
bricks and the downspout. (XIII,p.195-96)1 Most importantly, only two
shots to the window area (the fatal bullet and fragments associated
with the window frame) could be deemed consistent with the Glock (and
not consistent with a Smith and Wesson). (XIII,139-40; XII,190,266-70;
XIV,109) Witnesses had no idea what weapon caused any other
impacts in the window area. There were other guns and shooters.
Salazar fired numerous rounds at the front door and then from the car,
as he fled. (XIII,81,84) Matt Jamison shot his AK-47, leaving GSR
(which pellet guns do not cause) on his hand and face. (XI,56-57;
XIV,44,31,11,14-15) Jayson saw shots fired from a red Grand Am and a
white Jetta.2 (XI,p.160-62,197-200) Andrew and Arthur Lo had shown
others their semiautomatic handgun. (XIV,76-77,80,51-52,62-63)
1 The State’s last record citation, XIV,p.70, is to the testimony of
Richard Ernst, who was Duran’s expert. In denying the renewed
motion to sever defendants, however, the court barred admission of his
testimony against Montoya and instructed the jury not to consider it
against him. (XVI,p.12-14, 142-45) Counsel does not have the testimony
and can’t say whether it supports that assertion. Regardless, Ernst’s
testimony was not part of Montoya’s trial and may not be considered on
appeal. 2 Montoya and Salazar drove away in a green Nissan and a tan Honda,
respectively. (XIII,84)
3
In short, the record establishes that two of the ten Glock bullets
hit the vicinity of the window. Anything more is speculation.
Notably, both Chavez and Snyder (the man who chased Montoya
all the way to the car) testified that he fired up into the air. Snyder
specified that he did so repeatedly. (XII,p.250-51,253,261,274-75,72-73)
ARGUMENT
I. The prosecution did not prove attempted extreme-
indifference murder or accessory to murder beyond a reasonable doubt.
A. Attempted extreme-indifference murder
As fully explained in the Opening Brief, the prosecution was required
to and failed to prove beyond a reasonable doubt that Montoya:
knowingly
engaged in conduct strongly corroborative of the firmness of his
purpose to
knowingly cause the death of another
by conduct the nature and circumstances of which demonstrate
his willingness to take life indiscriminately, i.e., without
knowing or caring who the victim may be or without an
understandable motive or provocation, and
4
he was not justified in using physical force to defend himself from
what he reasonably believed to be the use or imminent use of
unlawful physical force, and did not use a degree of force he
reasonably believed necessary for that purpose (including force,
the intended, natural and probable consequence of which was to
produce death, if a lesser degree of force was inadequate and he
reasonably believed he was in imminent danger of death or great
bodily injury).
1. The prosecution was required to prove that
Montoya knowingly engaged in conduct strongly corroborative of the
firmness of his purpose to knowingly cause the death of another.
The State accuses Mr. Montoya of “adding elements” to §18-3-
102(1)(d),C.R.S., seeking to “extend” the mens rea knowingly to the
result and “failing to grapple” with this Court’s cases. Mr. Montoya
stands on well-established law.
This Court has repeatedly ruled that “knowingly” applies to the
result of causing death. People v. Marcy, 628 P.2d 69,78-80 (Colo.1981);
People v. Castro, 657 P.2d 932,938,940 (Colo. 1983), overruled on other
grounds by West v. People, 341 P.3d 520 (Colo. 2015); People v.
5
Jefferson, 748 P.2d 1223,1232,1233 (Colo.1988); Candelaria v. People,
148 P.3d 178,181-182 (Colo.2006); see also People v. Ellis, 30 P.3d
774,779 (Colo.App.2001). See Opening Brief, p.28-29 These are all
extreme indifference murder cases in which the Court had to interpret
that statute in order to rule on the claims.3
This Court’s rulings interpreting Colorado statutes have the force
of law. And a lengthy period of legislative acquiescence in the Court’s
3 In contrast, the State turns to dicta from cases not interpreting the
extreme-indifference murder statute. See People v. Thomas, 729 P.2d
972 (Colo. 1986) (holding that attempted reckless manslaughter is a
cognizable crime); Palmer v. People, 964 P.2d 524 (Colo. 1998) (holding
that conspiracy to reckless manslaughter is not a cognizable crime).
Answer Brief, p.15-16. The Thomas dicta mischaracterized Castro,
which did note that EIM is “not a specific intent offense” but “a crime
requiring a conscious object to engage in conduct creating a grave risk
of death to another,” but also explained with reference to Marcy that
that entailed a “willful disregard” that the conduct was “practically
certain to cause the death of another.” Castro, 657 P.2d at 938,939-940.
“[T]he term “willfully” in criminal law generally “refers to consciousness
of the act but not to consciousness that the act is unlawful.” Ratzlaf v. United States, 510 U.S. 135,151 (1994); see also People v. Ray, 109 P.3d
996,1000 (Colo. App. 2004) (“willful” disobedience required more than
voluntary and knowing conduct). The Palmer dicta—that attempting
an offense requiring knowing conduct requires no additional mens rea
as to the proscribed result—has no application to offenses also requiring
knowledge as to the result, such as second-degree and extreme-
indifference murder.
6
construction of a statute “is rather strong evidence that the courts were
applying the statute in a manner consistent with the legislative intent.”
People v. Yeager, 513 P.2d 1057,1059-60 (Colo. 1973); Sec. Life & Acc.
Co. v. Heckers, 495 P.2d 225,227 (Colo. 1972) (citing legislative
acquiescence in upholding prior interpretation as correct).
Here, it has been 35 years since this Court ruled that “[t]o
knowingly engage in conduct that creates a grave risk of death
subsumes an awareness that death is practically certain to follow from
that conduct,” Marcy, supra at 78-80, and thus “equated knowingly
engaging in conduct creating a grave risk of death and thereby causing
death…with knowingly causing the death of another, second degree
murder.” Candelaria, supra at 181-182. Not once in that 35 years has
the legislature amended the mens rea. Id. at 81-83 (“The 1981
amendments did not alter or remove any of the language leading us” to
the Marcy interpretation; the addition of universal malice “restricts the
required killing act to one evidencing an attitude of universal malice,
rather than altering the mental state required for commission of the
crime….”).
7
Accordingly, the State below conceded that the mens rea
“knowingly” applies to the result of causing death. See January 24,
2011, Court of Appeals Answer Brief, p.23-27 (“the jury instructions
made clear that “knowingly” applied to the result” since it was in the
language of the statute, since “the ‘knowingly’ element preceded and
was offset from the conduct and result elements, and therefore it
modified each,” and since the court defined knowingly as to results;
alternatively, even if the instructions did not sufficiently inform the
jury that knowingly applied to the result, “the error was not plain
error.”)
Even now, the State concedes that the “core purpose” of the
statute is to punish the “depravity of the human heart, which
determines to take life upon slight or insufficient provocation without
knowing or caring who may be the victim,” See Answer Brief, p.19, and
“determining to take life” requires at least knowledge.
The State misreads Candelaria as stating that it is solely the
nature and circumstances of the killing act that “elevates the actor’s
culpability, rather than his intent or the result of his conduct.” See
8
Answer Brief, p.20 In fact, Candelaria says the nature and
circumstances of the killing act elevate a knowing murder to the level of
a class-one felony:
Whether one acts with the conscious objective of
killing a particular person,…or merely an awareness of a practical certainty that his conduct will cause that person's death,…he may
do so in a manner that to a rational mind
demonstrates an extreme indifference to the
value of human life generally or he may do so in a
manner that to a rational mind merely
demonstrates a willingness to take the life of that
particular individual. And whether or not one intends the death of a particular individual, it is
the nature and circumstances of the killing act by
which he seeks to accomplish his purpose that
elevates the actor's culpability, rather than his
intent or the result of his conduct.
Candelaria, 148 P.3d 178,182 (emphasis added).
The State’s real complaint seems to be with Marcy. That
complaint is as incorrect as it is late.
9
2. The prosecution was required to prove that
Montoya knowingly engaged in conduct strongly corroborative of the
firmness of his purpose to commit a killing act, the nature and
circumstances of which demonstrated his willingness to take life
indiscriminately, i.e., without knowing or caring who the victim may be
or without understandable motive or provocation.
The State concedes, based on Jefferson, 748 P.2d 1223, that the
“core purpose” of the statute is to punish the “depravity of the human
heart, which determines to take life upon slight or insufficient
provocation without knowing or caring who may be the victim.” See
Answer Brief, p.19, see Jefferson, supra at 1231,1232,1228 (universal
malice reflects a “cold-bloodedness” untempered by “motive or
provocation”—it is “that depravity of the human heart, which
determines to take life upon slight or insufficient provocation without
knowing or caring who may be the victim”) (emphasis added); accord,
Candelaria, supra at 182-183.
Indeed, in the State’s view it is “the nature and circumstances of
the killing act”—by itself—that elevates culpability to the level of a
class-one felony. Answer Brief, p.19-20. Yet the State argues the
prosecution need not prove that the conduct was of that nature. Answer
Brief, p.21 The State is wrong.
10
Assessing the sufficiency of proof that the killing act was
untempered by sufficient provocation or motive does not require
resurrecting an old sufficiency test; it does not remotely equate to a
determination whether the evidence “excludes every reasonable
hypothesis” other than guilt. It merely requires assessing whether
substantial and sufficient evidence was admitted to convince a
reasonable juror that the killing act was of the nature required for
conviction of the class-one (or here, class-two) felony, as required by
federal and state due process. U.S.Const.amend.V,XIV;
Colo.Const.art.II,§§16,25; In re Winship, 397 U.S. 358 (1970); People v.
Gonzales, 666 P.2d 123,127 (Colo.1983). This is basic and routine; the
sky is not falling. While Mr. Montoya agrees that “the People only
needed to prove that a defendant acted with universal malice,” See
Answer Brief, p.22, that necessarily required the prosecution to prove
“that depravity of the human heart, which determines to take life upon
slight or insufficient provocation without knowing or caring who may be
the victim.” That is not an “additional” element, as the State asserts; it
11
is simply what universal malice means. The trial court informed the
jury as much with no objection from the prosecution.(I,379)4
The State admits that proof of extreme-indifference murder would
necessarily disprove self-defense, See Answer Brief, p.26, and must
therefore agree that a finding of self-defense would disprove universal
malice. But an existing motive or provocation need not rise to the level
of full justification and exoneration to rule out a finding of universal
malice. See Jefferson, supra. In that event, assuming proof of
knowledge, there could be a conviction for attempted second-degree
murder only.
3. The prosecution was required by federal and
state due process to disprove self-defense beyond a reasonable doubt.
The State objects to Mr. Montoya’s request that the Court correct
erroneous dicta in People v. Pickering, 276 P.3d 553 (Colo.2011), and
People v. Gross, 287 P.3d 105 (Colo. 2012), on the ground that the issue
“largely falls outside the issue granted on certiorari.” That is incorrect,
4 Comment 6 to the 2015 jury instruction on extreme indifferent
murder, 3-1:04, notes that “universal malice” is not defined by statute
and directs the parties to Candelaria, supra; Jefferson, supra; and
Longinotti v. People, 102 P. 165 (Colo. 1909).
12
since the Court must determine what the prosecution had to prove
before it can assess the sufficiency of the evidence. See, e.g., People v.
McCoy, 2015 COA 76, ¶37 (interpreting the statute de novo before
assessing the sufficiency of the evidence). The Court should welcome the
opportunity to correct the misstatements before they cause further
mischief, in any event.
The Washington Supreme Court has provided a useful template in
State v. W.R., Jr., 336 P.3d 1134 (Wash. 2014). That Court
acknowledged its previous misreading of Martin v. Ohio, 480 U.S. 228
(1987), because it failed to appreciate that Martin’s holding was limited
to situations in which the offense and defense “could coexist,” even if the
defense may in some or even most cases negate the mens rea, and that
placing the burden on the defense was acceptable in Martin only
because self-defense did not necessarily negate a finding of purposeful
killing. Id. at 1137.
The Washington Supreme Court acknowledged that Smith v.
United States, 133 S.Ct. 714 (2013), “subsequently clarified that the
prosecution must always bear the burden of disproving a defense that
13
necessarily negates an element of the charged offense,” and, “Read
together, Martin and Smith hold that the State may burden a
defendant with proving an affirmative defense that excuses otherwise
criminal conduct even when the defense overlaps one of the elements
under most circumstances, but the State may not burden a defendant
with proving a defense that necessarily negates an element of the
charged offense.” W.R., Jr., at 1137-38.
The Washington Supreme Court concluded, “When a defense
necessarily negates an element of the crime charged, the State may not
shift the burden of proving that defense onto the defendant. To hold
otherwise unconstitutionally relieves the State of its burden of proving
every element of the crime beyond a reasonable doubt.” Id. at 1141.
Accordingly, the Court overruled its cases holding otherwise. Id.
In addition to W.R., Jr. and all of the cases at pp.34-36 of the
Opening Brief, Mr. Montoya directs the Court’s attention to United
States v. Westbrooks, 780 F.3d 593 (4th Cir. 2015). That Court has also
acknowledged that “the Supreme Court has made it clear that “[t]he
[government] is foreclosed from shifting the burden of proof to the
14
defendant ... when an affirmative defense ... negate[s] an element of the
crime.” Id. at 596 (citing Smith, supra).
The United States Supreme Court is the final interpreter of the
Federal Constitution, and its holdings overrule the Colorado Supreme
Court's contrary holdings. See People v. Butler, 251 P.3d 519,522 (Colo.
App. 2010); People v. Wilder, 2016 COA 23, ¶4. This Court should
correct the misstatements in Pickering and Gross before they create
more errors, and before a federal court intervenes.
The State acknowledges that this Court’s cases are contrary to
Smith before accusing Montoya of “improperly manufacturing a dispute
that does not exist.” Answer Brief, p.22-23,25 The dispute is quite
clear. Citing Pickering, Gross explained that since self-defense is
merely an element-negating traverse as to extreme indifference murder,
“the prosecution is not required to disprove beyond a reasonable doubt
that the defendant acted out of self-defense,” and “self-defense to
second-degree assault requires a higher burden of proof for the
prosecution; a lower burden is required for consideration of self-defense
with respect to the crime of extreme indifference murder.” Gross, 287
15
P.3d 105,111 (emphasis added). After Smith, supra, we know that is
categorically wrong. While the Gross assertions (like those in
Pickering) are dicta in the sense that the burden apparently was not
disputed or at issue, trial judges will read Gross and Pickering as
“stating the law” and will thereby inject federal constitutional error into
the trial. Since this Court must determine whether it was the
prosecution’s burden in order to assess sufficiency anyway, the Court
should simply clarify the burden to disprove element-negating defenses
under federal due process. The Washington Supreme Court has shown
the way. The sky is still not falling.
The State does not dispute Mr. Montoya’s argument under state
due process, article II, §3 and §18-1-407(2),C.R.S. that self-defense is an
affirmative defense to the knowing murder included in extreme-
indifference murder, and as such, the prosecution must disprove it
beyond a reasonable doubt. In addition to the authorities at pp.38-40,
Montoya directs the Court to its recent decision in Doubleday v. People,
2016 CO 3, reaffirming that a properly-raised affirmative defense is
16
effectively an element of the offense that the prosecution must disprove
beyond a reasonable doubt. Id. at ¶ 3, 25-26.
4. The prosecution failed to prove attempted
extreme-indifference murder, including disproof of self-defense.
The State notes testimony that Montoya “fired shots at the house,”
Answer Brief, p.26-27, but some of the testimony cited by the State is to
the contrary: Snyder testified Montoya was repeatedly “shooting in the
air” as Snyder chased him across the yard. (XI,p.247-48,251,253) Other
testimony cited by the State, from Jayson, explains that “we all ran out
the door pretty much right after them” and Montoya fired “toward us,
toward the house…” (XI,p.159) Other testimony cited by the State,
from Mann, referred to Salazar’s gunshots and not Montoya’s. (XI,299-
300)
The State asserts that the evidence “established that five of the
ten shots” fired by Montoya and Duran hit the vicinity of Barton’s
bedroom window. This is refuted at pp.2-3, supra.
Nor did the evidence establish that Montoya told Salazar he “shot
at the house four or five times.” Montoya allegedly said he “shot at the
house” and saw a bullet hit the door or wall, (XII,p.120) and admitted
17
shooting the gun “like four or five” times, (XIII,p.91), but Montoya never
said he “shot at the house four or five times.” Since the men chasing
Montoya across the lawn were between Montoya and the house, firing
once back toward the house after firing into the air would not establish
guilt in a self-defense case.
The State’s assessment of the evidence under what it calls “the
substantial evidence test” ignores the prosecution’s burden to prove
universal malice and knowledge that his conduct was practically certain
to cause death, and to disprove self-defense, although those are
elements to be proved under the “substantial evidence test.” Montoya
was not “shooting into a crowd of people” for no reason, as the State
suggests. Answer Brief, p.26
The State then claims to take those elements into account, but
misunderstands some of the arguments and misunderstands the
evidence.
First, Mr. Montoya argued a lack of proof from the prosecution
that he knew his conduct was practically certain to cause death. His
inexperience with guns and the fact that even trained officers shoot
18
wildly when facing a threat were just additional reasons to doubt that
he had such knowledge. See Opening Brief, p.46
The State next argues Montoya’s “use of the gun alone” provided a
sufficient basis “to conclude that he was practically certain that his
conduct could result in death,” citing a Florida case. Similarly, the
State claims the jury could have inferred from his conduct that he was
“practically certain that his gun was capable of causing death.” Answer
Brief, p.28,29 (emphasis added) Neither assertion states the law in
Colorado, which required proof that he was practically certain his
conduct would cause death. Second, if mere use of a gun necessarily
established that any injuries or deaths were “knowingly” caused, there
could be no reckless or criminally negligent offenses involving guns.
For that matter, there could be no accidents with a gun. That is not the
law.
The State’s characterization of Montoya’s conduct as
“brandish[ing] the gun to scare the other partygoers and taunt[ing] the
other partygoers [by] screaming” at them misunderstands the evidence.
See Answer Brief, p.28 The testimony cited by the State is Jayson’s,
19
saying that when Snyder told him to leave Montoya said “you don’t
want us to leave,” before slapping him (XI,p.153), and from Barton,
saying, “Taven goes to lunge forward, and that’s when he dropped back
and pulled the gun out of his waistband,” held it “up in the air and goes,
‘what now? What now?’ ” (XI,p.46), and that Montoya initially said
“let’s take it outside” when Snyder was about to “beat the shit out [sic]
him.” (XI,105-106) (but he was surrounded). No one said Montoya
“screamed” or brandished the gun to “scare partygoers.” Every single
witness agreed that he held up the gun at the moment that Snyder and
the men surrounding him on all sides were about to beat him up. Every
witness agreed that he put it right back into his waistband and ran for
the front door as soon as he could.
In addressing universal malice, the State misquotes Montoya’s
argument. He fired in order to “escape” his assailants as well as to
“stop” them. See Opening Brief, p.47
In citing the gunshots some of the assailants heard before exiting
as “establishing that [Montoya] started shooting before his alleged
assailants” were outside, Answer Brief,p.29,30, the State
20
misunderstands a critical piece of evidence. It was undisputed that
Salazar, who ran out fifteen to twenty seconds after Montoya (XIII,106),
shot four or five times into the air as soon as he got outside. (XIII,81;
exhibits envelope, pict 22-23, exhibit1F) It was Salazar’s gunshots the
assailants (and Montoya) heard first.
The State also misunderstands the evidence in suggesting a jury
might not “believe” Montoya was being chased when he fired. Answer
Brief, p.29 Snyder admitted he “was chasing him the whole time he was
shooting,” until he got in the car, and he explained that Montoya
started firing “straight up” “into the air” when Snyder got within five
feet of him. (XI,250-51,253,261,274-75; exhibits envelope, pict 18-19,
exhibit1-B) Because Snyder continued chasing him “the whole time” he
was running away and shooting into the air, and Jayson was chasing
him for at least part of that time, the State is mistaken in suggesting
multiple shots was unreasonable force. Answer Brief, p.31
The State misunderstands the evidence in asserting that Montoya
“decided to wildly shoot at the crowd inside the house and not his
assailants,” Answer Brief, p.29, since the house was behind the
21
assailants. Hence Jayson’s claim that he fired “toward us, toward the
house…” (XI,p.159)
The State did not prove Montoya forfeited his right to self-defense
by being the initial aggressor or provoking the attack, since he
attempted to (but was not permitted to) withdraw. And even if it did, it
did not prove that he acted with the requisite knowledge and universal
malice. For all of the reasons at pp.41-49 of the Opening Brief, the
evidence was insufficient to prove guilt and the extreme-indifference
murder conviction must be vacated.
B. There was insufficient evidence of accessory (after the
fact) to murder.
The State argues this claim should not be reviewed because Mr.
Montoya invited any error by requesting the accessory instruction. In
support, however, the State cites only general invited error cases, none
of which dispense with the proof required by due process when a lesser
non-included offense was submitted by the defense.
Hye v. State, 162 So. 3d 750 (Miss. 2015), does not contain the
holding asserted in the State’s parenthetical. The language quoted in
the parenthetical appears nowhere in Hye. See Answer Brief, p.35. Hye
22
“address[ed] only the question of whether the trial court erred by
denying Hye an accessory-after-the-fact instruction” and ruled that it
did not err “because there was no evidentiary basis” for the instruction.
Id. at 751,753. Hye overruled a Mississippi case that gave defendants
“the unilateral right…to insist upon” lesser non-included offense
instructions. Id. at 751,754. It was that “Griffin rule” that had “a very
real propensity to lead to “unsound compromise verdicts.” Id. at 759.
Compare Answer Brief, p.39
Submitting a lesser offense instruction is not the equivalent of
knowingly, intelligently and voluntarily pleading guilty to an offense.
Proof beyond a reasonable doubt is required for lesser-included offenses
submitted by the defense, and there is no reason to treat lesser non-
included offenses differently. The State has provided no authority for
dispensing with the due process requirement of proof based upon which
party submitted the instruction.
The State also urges the Court to adopt for the first time the
fourth prong of the federal plain error test, and to find that a class-four
felony conviction and six-year consecutive prison sentence does not
23
“seriously affect the fairness, integrity or public reputation of judicial
proceedings” despite the lack of proof. Of course it does. But since
sufficiency is not subject to plain error review, none of Olano applies to
this claim. See, e.g., Morse v. People, 168 Colo. 494,498 (Colo. 1969)
(declining to hear claims first raised on appeal based on the
“contemporaneous objection rule” except for insufficient evidence claim);
People v. Serra, 361 P.3d 1122,1129 (Colo. App. 2015)(rejecting
argument that unpreserved sufficiency arguments are reviewed only for
plain error); People v. McCoy, 2015 COA 76, ¶6 (same); People v.
Sandoval, 2016 COA 14, ¶30 (“We agree with McCoy.”); People v.
Randell, 2012 COA 108, ¶30 (same); People v. Garcia, 2012 COA 79,
¶35 (“[W]e reject the People's contention that Garcia failed to preserve
his challenge to the sufficiency of the evidence because he did not move
for a judgment of acquittal at trial.”); People v. Duncan, 109 P.3d
1044,1045 (Colo. App. 2004) (“a sufficiency of the evidence claim may be
raised for the first time on appeal”); People v. Peay, 5 P.3d 398,400
(Colo. App. 2000) (same). But see People v. Lacallo, 2014 COA 78.
24
On the merits, Mr. Montoya’s claim is not predicated solely in
the requirement that the other person must have “committed” the
entire crime when assistance was rendered, but also in the requirement
that he must have “know[n]” the person assisted “has committed a
crime” that is a class-1 or class-2 felony. §18-8-105(1),(3),C.R.S.
The State’s argument that the crime need not be completed at the
time an accessory renders assistance is illogical and cannot be what the
legislature intended, since one who assists during the commission of the
crime is fully liable as a complicitor. One who assists after the crime is
held far less accountable, as set forth in §18-8-105(3),(4),(5),(6)C.R.S.
The State misconstrues Barreras v. People, 636 P.2d 686
(Colo.1981), which states that the accessory must know the “character”
of the offense and it is not sufficient to “only know that some sort of
crime occurred.” Id. at 688.
Consistent with that, the Colorado Model Jury Instructions
continue to require a jury finding that (in this particular scenario) the
defendant “knew” the person “had committed” the specific class-one or
two felony at issue, and the interrogatory requires the prosecution to
25
prove this beyond a reasonable doubt. See 8-1:09.INT ACCESSORY –
INTERROGATORY (KNOWLEDGE OF CLASS ONE OR TWO
FELONY OFFENSE OR CHARGE)
In this case, MK was not deceased when Montoya drove Duran
from the scene so Duran had not committed a murder. Even if less than
full knowledge of every element is required, one cannot be an accessory
to murder unless one knows a person was killed. That is essential to
“the character” of murder. Here, there was no evidence of a death when
they drove away.
The State points out that MK was shot at that time, but Montoya
did not know anyone in the house was shot, much less that she was
dying. For all of the reasons at p.49-54 of the Opening Brief, the
accessory conviction must be vacated for insufficient evidence.
As explained at pp.54-56 and pp. 59-61 of the Opening Brief, it
would be unconstitutional on numerous grounds—not just notice
grounds—to affirm the accessory conviction on a basis never charged,
never agreed to by the defense, never submitted to and never found
beyond a reasonable doubt by the jury.
26
II. Even if the prosecution proved Mr. Montoya was an
accessory (after the fact) to murder, that conviction must be vacated
because one person may not be convicted of both committing and being
an accessory (after the fact) to the same murder.
By insisting that complicity to murder and accessory after the fact
to murder are “separate crimes,” the State misses the point.5
Complicity and accessory are mutually exclusive theories of liability for
a single crime. One person may either be convicted and punished as the
killer (including by a complicity theory) or as an accessory to a killing
committed by another, but he may not logically or legally be punished
as both the killer and as an accessory to his own crime.
Courts must presume that the legislature intended compliance
with the constitutions and “a just and reasonable result.” See §2-4-
201(a),(c), C.R.S.; Jones v. United States, 526 U.S. 227,239 (1999)
(applying canon of constitutional avoidance); Clark v. Martinez, 543
5 For example, the State cites People v. Jennings, 237 P.3d 474 (Cal.
2010), for the proposition that accessory is “a separate crime from
murder.” Answer Brief, p.53 But Jennings does not support convicting
a single person of both murder and accessory to murder. Jennings
merely rejected a claim that the trial court had a duty to sua sponte
instruct on “accessory after the fact as a lesser included offense of
murder,” since the legal test was not satisfied (whether the lesser is
“necessarily included” in the greater). Id. at 512-513.
27
U.S. 371,381-82 (2005) (same); People v. Hickman, 988 P.2d 628,637
(Colo.1999)(same); Doubleday v. People, 364 P.3d 193,196 (Colo. 2016)
(in discerning the legislative intent, the Court must avoid constructions
that would lead to illogical or absurd results).
The State’s interpretation would lead to illogical, absurd and
unconstitutional results. In the State’s view, a complicitor to murder or
manslaughter may be separately convicted and punished as an
accessory (and receive a stacked sentence, as here), but the shooter
could not be separately convicted and punished as an accessory for the
identical post-crime behavior of, e.g., destroying physical evidence. See
Answer Brief, p.10,47,53 (“where, as here, a defendant is convicted of
complicity murder for rendering aid…before or during the shooting, he
may also be convicted of accessory” for conduct after the shooting). In
the State’s view, the person guilty as a complicitor for driving the
shooter to the murder scene is also guilty as an accessory for driving
him from the scene, whereas a shooter fleeing the scene can be held
liable for only one crime.
28
Not only is it illogical to punish one person for both committing a
murder and for being an accessory after the fact to the same murder, it
would lead to absurd and unconstitutional results to make the helper
liable for more convictions and punishments than the shooter. See
Colo.Const.art.II,§§6,25; People v. Nguyen, 900 P.2d 37,39-40
(Colo.1995) (a statutory scheme that imposes a harsher punishment for
less serious criminal conduct, or causes an offender who causes the less
grievous result to receive the greater penalty, violates equal protection);
People v. Marcy, 628 P.2d 69,74-75 (Colo.1981) (when criminal statutes
provide different penalties for the same conduct, the person subjected to
the harsher penalty is denied equal protection unless there is a rational
reason for the disparate punishments); accord, People v. Stewart, 55
P.3d 107,114 (Colo. 2002); People v. Richardson, 983 P.2d 5,6-7 (Colo.
1999); People v. District Court, 964 P.2d 498,500-01 (Colo. 1998).
Finally, Mr. Montoya did not invite the error by submitting the
accessory instruction. Duplicate convictions for the same offense under
different theories of liability are not cognizable and are thus void. See
29
authorities at pp. 58-59 of the Opening Brief. The State cites no case
applying invited error to affirm such a conviction.
In a somewhat analogous situation, this Court ruled in People v.
McKimmy, 2014 CO 76, that “no authority exists purporting to bind an
appellate court to ‘the prosecution's statements in the trial record,’ and
the [judicial admission] doctrine only applies to pro-forma factual
matters—it does not pertain to contested issues of law.” Id. at ¶16-18
(citation omitted)(emphasis added). Since “the proper definition of
‘actual notice’ is a legal question, not a factual one,” the concession of
“actual notice” below “does not mean that [the prosecution] forfeited the
right to litigate the interpretation of that legal term of art on appeal.”
Id. Similarly here, trial counsel did not by submitting the instruction,
admit that convictions for both murder and accessory would be legally
permissible and forfeit Mr. Montoya’s right to make that legal
argument on appeal.
For all of the reasons and authorities at p.56-62 of the Opening
Brief, the accessory conviction must be vacated.
30
CONCLUSION
For the foregoing reasons, as well as those in the Opening Brief,
Mr. Montoya’s convictions for attempted extreme-indifference murder
and accessory must be vacated for insufficient evidence. If the attempt
conviction is affirmed, then the convictions for manslaughter, criminally
negligent homicide and accessory for the same murder must be vacated.
DOUGLAS K. WILSON
Colorado State Public Defender
__________________________________
ELIZABETH GRIFFIN, #22218
Deputy State Public Defender
Attorneys for Angelo Emilio Montoya
1300 Broadway, Suite 300
Denver, Colorado 80203
(303) 764-1400
31
CERTIFICATE OF SERVICE
I certify that, on March 2, 2016, a copy of this Reply Brief was
electronically served through ICCES on John T. Lee of the Attorney
General’s Office.
