2021 COA 120
Colo. Ct. App.2021Background
- Defendant James Anthony Draper repeatedly threatened his wife A.D.; A.D. was later found shot twice and died.
- The morning after A.D.’s murder Draper carjacked a vehicle, brandished firearms, shot at multiple occupied vehicles, and pointed a gun at several police officers; police found two guns in the car, one matching the murder weapon.
- Prosecutor consolidated two indictments (the murder of A.D. and the subsequent rampage) for trial; the jury convicted Draper of second‑degree murder, multiple counts of attempted first‑degree extreme indifference murder (and related offenses), and lesser offenses; sentences totaled hundreds of years.
- At trial Draper requested a jury instruction defining the statutory element “universal malice” for extreme indifference murder; the court declined to define the term and refused his proposed (older) wording.
- Draper also challenged (inter alia) refusal of certain lesser‑included instructions, denial of a voluntary‑intoxication instruction, UMDDA notification, consolidation, admission of hearsay and 404(b) evidence, and the constitutionality of attempted extreme indifference murder.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court erred by refusing to define “universal malice” | No definition required; case law does not mandate a definitional instruction | Court must instruct jurors using the Supreme Court’s Candelaria definition | Court erred in omitting a correct definition, but the error was harmless beyond a reasonable doubt |
| Refusal to give certain lesser‑included offense instructions | No rational basis in the evidence to instruct on manslaughter or criminally negligent homicide | Trial should have been instructed on lesser offenses | No abuse of discretion; refusal appropriate given the evidence of intentional/knowing conduct |
| Whether voluntary intoxication instruction was available | Not applicable because attempted extreme indifference murder lacks specific intent | Intoxication negates culpability for extreme indifference/universal malice | Denied; voluntary intoxication inapplicable because the offense does not require specific intent |
| UMDDA (failure to have superintendent promptly notify defendant of detainer) | Superintendent failed to timely notify; warrants dismissal or hearing | Notification occurred within statutory limits and any delay was not prejudicial | No relief; notification occurred well within one year and trial was within 182 days (or delay was not prejudicial) |
| Consolidation of two cases for trial | Joinder caused prejudice and evidence was not sufficiently cross‑admissible | Offenses were connected, evidence cross‑admissible, and jury could separate counts | No abuse of discretion; joinder proper and not prejudicial |
| Admission of multiple out‑of‑court statements (Confrontation/CRE 807/404(b)) | Several statements were testimonial or lacked guarantees of trustworthiness | Statements were nontestimonial and admissible as res gestae, to show state of mind, or under CRE 807/404(b) | Most statements admissible; one social‑media statement lacked sufficient guarantees but admission was harmless error |
| Constitutionality of attempted extreme indifference murder (equal protection, vagueness) | Penal disparity with illegal discharge of a firearm and lack of notice if no injury | Statutory elements differ sufficiently; attempt covers substantial step posing grave risk | No equal protection or vagueness violation; statutes distinguishable and Castro line controls attempt standard |
Key Cases Cited
- Candelaria v. People, 148 P.3d 178 (Colo. 2006) (supreme court’s modern definition of “universal malice” governs extreme‑indifference murder)
- People v. Jefferson, 748 P.2d 1223 (Colo. 1988) (upheld statute and discussed earlier formulations of universal malice)
- Longinotti v. People, 102 P. 165 (Colo. 1909) (early formulation of “depravity of the human heart” description)
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial hearsay excluded by the Sixth Amendment Confrontation Clause)
- Neder v. United States, 527 U.S. 1 (U.S. 1999) (omission of an element in jury instructions can be harmless beyond a reasonable doubt)
- People v. Quintana, 882 P.2d 1366 (Colo. App. 1994) (res gestae admissibility to explain the charged conduct)
- People v. Higinbotham, 712 P.2d 993 (Colo. 1986) (UMDDA; prosecution must prove lack of prejudice from notification failures)
- Alvarez v. People, 653 P.2d 1127 (Colo. 1982) (juror consultation of dictionary is improper)
- People v. Garcia, 28 P.3d 340 (Colo. 2001) (preservation principles for requested jury instructions)
- People v. Glasser, 293 P.3d 68 (Colo. App. 2011) (UMDDA relief and prejudice analysis)