DOWNEY v. THE PEOPLE
No. 16,164
Supreme Court of Colorado
February 20, 1950
Rehearing denied March 13, 1950
215 P. [2d] 892
The judgment is affirmed.
MR. JUSTICE HAYS dissents.
MR. CHIEF JUSTICE HILLIARD and MR. JUSTICE MOORE do not participate.
En Banc.
MR. JUSTICE MOORE delivered the opinion of the court.
DAVID ALBERT DOWNEY, the defendant in the lower court and to whom we hereinafter refer as defendant, or by name, was charged by information filed in the district court of El Paso county on July 28, 1947, with having “feloniously, wilfully and of his malice aforethought” killed and murdered one Lolly Lila Downey. Defendant entered a plea of not guilty and the cause came on for trial October 7, 1947. The jury returned a verdict of guilty of murder in the first degree and fixed the penalty at “life imprisonment at hard labor in the State Penitentiary.” Motion for new trial was thereafter filed, argued, and denied, and appropriate judgment was entered by the court. Defendant brings the cause here by writ of error, and relies for reversal upon alleged errors of the lower court in the conduct of the trial as follows: 1st. That the trial court erred in receiving in evidence testimony relating to an alleged confession made by the defendant and in refusing to strike said testimony. 2nd. The court erred in refusing to strike the testimony of Dr. Henry W. Maly as the same related to the injuries to the larynx of the deceased. 3rd. The court erred in overruling defendant‘s motion for a directed verdict upon the ground that the corpus delicti had not been established. 4th. That the court erred in refusing to give two instructions tendered by the defendant.
The evidence discloses that defendant met deceased in London, England, in 1943 while he was serving in the military forces of the United States. Deceased came to the United States in January, 1946, and in April of that
It appears that for some months following the marriage defendant and his wife were employed, and that their joint earnings were $540.00 per month. In May, 1947, defendant and deceased went from California to Iowa, due to the illness of defendant‘s foster mother, where they remained until shortly prior to the events resulting in the death of Mrs. Downey. Defendant and deceased arrived in Colorado Springs, Colorado, on July 16, 1947, on their return trip to California. On July 17th they visited various points of interest. On July 18th they drove to the top of Pikes Peak, had lunch at Woodland Park, after which they drove up the Rampart Range road and did some climbing. At about one o‘clock in the afternoon they proceeded by car to a still higher point on this road, where they again parked their car. From the point where their car was parked they climbed a hill. The body of Mrs. Downey was later found about one-third of the way up this hill.
Between one and two o‘clock in the afternoon of July 18, 1947, a Dr. Wilson was driving on the Rampart Range road when he observed the defendant being assisted into a car by a Mr. Hubbard from Texas. Dr. Wilson stopped his automobile and noticed blood on the left side of defendant‘s shirt. He testified that defendant stated, “I am not hurt—that is my wife‘s blood. * * * She may be dead.” Dr. Wilson and Mr. Hubbard were unable to find Mrs. Downey and returned to de-
I. B. Bruce, chief of police of the city of Colorado Springs, was called in by the sheriff of El Paso county to question the defendant. Bruce testified that he kept an accurate record of the time within which the questioning of defendant continued, and stated that on July 20, defendant was questioned a total of six hours and forty minutes, the time being as follows: 10:20 A.M. to 12:30 P.M.; 2:30 P.M. to 4:30 P.M.; 5:30 P.M. to 6:00 P.M.; 7:00 P.M. to 9:00 P.M.
On July 21, the questioning continued for five and
On July 22, defendant was taken by automobile from Colorado Springs to the scene of the alleged crime by undersheriff Clark to trace the path which he and his wife had followed. The trip consumed the hours between 9:00 A.M. and noon. Defendant was questioned while at the scene. On July 23 defendant was questioned before Chief of Police Bruce for six hours and forty-five minutes, as follows: 11:00 A.M. to 12:00 noon; 2:00 P.M. to 3:15 P.M.; 4:00 P.M. to 6:00 P.M.; 8:00 P.M. to 10:30 P.M. After 10:30 P.M., the evidence is that officer Clark talked with defendant for “an hour or so” A lie detector was used in the afternoon, to the use of which the record does not disclose any objection. On July 24th, in the forenoon, the Reverend Albertson, minister of the First Methodist Church at Colorado Springs, conferred with the defendant privately for about two hours. This conference was arranged at the request of defendant. Defendant was questioned by the officers at 1:00 P.M., who testified that he then stated, “that he had slept over it and wanted to get it off his chest and try to atone for the wrong he had done. He was an entirely different individual and talked freely.” During the intervals separating the interrogations of defendant he was not disturbed; he was provided with food, and made no complaint of being denied opportunity to rest.
During the questioning of defendant prior to the afternoon of July 24, his statement—generally persisted in by him—concerning the events immediately preceding his wife‘s death was, as related by officer Bruce, as follows: “They drove back to Woodland Park at eleven o‘clock A.M. where they had lunch and drove to the Rampart Range Road, stopping one place to climb around. They got back in the car and drove to another spot where Mrs. Downey met her death. They parked the car on the right-hand side of the road facing Colo-
The alleged confession made by defendant on July 24th, following the visit of Reverend Albertson, was related by officer Bruce, while a witness, as follows: “They came back to Woodland Park where they had lunch at eleven A.M. After finishing lunch they drove on the Rampart Range Road, stopped and climbed around, got back in the car and looked for a place to climb that would not be too dangerous. They parked their car on the right-hand side of the road at a spot quite high and left the car and went from the car about three hundred yards around and up on these rocks and were sitting on the rock talking about their trip, the distances of the trip, about their apartment in San Francisco, and an argument came up. Downey flatly refused to tell me what the argument was about—he
Defendant‘s counsel objected to the admission of the alleged confession of July 24th upon the ground that it was not made voluntarily, but was the result of police coercion, and upon the further ground that its admission in evidence amounted to a denial of due process of law in violation of the Fourteenth Amendment to the Constitution of the United States. The trial court, in the absence of the jury, heard evidence bearing upon all the pertinent circumstances under which the alleged confession was made, and overruled defendant‘s objection to the admission thereof in evidence. Defendant took the stand in his own behalf and admitted making the statement of July 24th, attributed to him by the officers. He denied
It is admitted that during the questioning which preceded the making of the alleged confession the chief of police told defendant that his story “stunk.” It is further admitted that defendant was repeatedly told that he was a liar, that he was repeatedly accused of murdering his wife, of strangling her, of choking her, and of hitting her on the head with a rock. It also is admitted that on the night of July 23rd undersheriff Clark, in response to a question of defendant concerning how long the questioning might continue, stated that he had known people to be questioned a week or two weeks. Defendant told the court (in the absence of the jury) that he made the alleged confession because, “After six days of this interrogation, not eating or sleeping to amount to anything, I was so mentally and physically exhausted that I would say anything to end it—I couldn‘t take it any longer.” Defendant further stated, concerning the whole investigation, that generally speaking the questioning was conducted in a “gentlemanly manner,” and that his inability to eat and sleep was not caused by the failure to provide food or opportunity to sleep, but by the entire situation with which he was confronted. His testimony concerning the events resulting in the death of his wife was, on the whole, consistent with his first statement to the police.
The trial court instructed the jury in substance that the burden rested upon the people to prove that the alleged confession was voluntarily made by the defendant, and if the jury found from the evidence that it was not so made, it should be entirely disregarded as evidence.
Questions to be Determined.
First: Should this court hold as a matter of law that the alleged confession of defendant was involuntary, and
In the light of recent decisions of the Supreme Court of the United States in Watts v. State of Indiana, 338 U.S. 49, 69 Sup. Ct. 1347; Turner v. Commonwealth of Pennsylvania, 338 U.S. 62, 69 Sup. Ct. 1352; and Harris v. State of South Carolina, 338 U.S. 68, 69 Sup. Ct. 1354, we have most carefully examined all the facts here present and compared them with the factual situations existing in those cases in an effort to correctly apply the law as announced by the highest judicial authority in this nation, and we have been greatly assisted by able briefs and arguments presented by counsel for the defendant, as well as those filed on behalf of the people. In Watts v. State of Indiana, supra, the Supreme Court of the United States, among other things, said:
“A confession by which life becomes forfeit must be the expression of free choice. A statement to be voluntary of course need not be volunteered. But if it is the product of sustained pressure by the police it does not issue from a free choice. When a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a physical or a mental ordeal. Eventual yielding to questioning under such circumstances is plainly the product of the suction process of interrogation and therefore the reverse of voluntary. We would have to shut our minds to the plain significance of what here transpired to deny that this was a calculated endeavor to secure a confession through the pressure of unrelenting interrogation.”
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“In holding that the Due Process Clause bars police procedure which violates the basic notions of our accusatorial mode of prosecuting crime and vitiates a conviction based on the fruits of such procedure, we apply the Due Process Clause to its historic function of
assuring appropriate procedure before liberty is curtailed or life is taken.”
Broad expressions of similar import were used by the court in Turner v. Commonwealth of Pennsylvania, and Harris v. State of South Carolina, supra. It is, however, a well established principle that such broad general statements as those above quoted should be interpreted and applied in the light of the particular facts in the case in which such statements were made, and are not necessarily controlling when considered in a subsequent cause in which the factual situation is materially different. Capitol Life Insurance Co. v. Di Iullo, 98 Colo. 116, 53 P. (2d) 1183; Froid v. Knowles, 95 Colo. 223, 36 P. (2d) 156; Dunton v. Stemme, 117 Colo. 327, 187 P. (2d) 593.
Before a confession can properly be admitted in evidence in the trial of a person accused of crime, it must be shown that the alleged confession was made voluntarily. “Whether or not a confession was voluntary, is primarily a question for the trial court. Its admissibility is largely within the discretion of that court; and on review, its ruling thereon will not be disturbed, unless there has been a clear abuse of discretion.” Osborn and Noakes v. People, 83 Colo. 4, 262 Pac. 892. This rule has been recognized and applied under varying circumstances in numerous cases by this court. Reagan v. People, 49 Colo. 316, 112 Pac. 785; Buschy v. People, 73 Colo. 472, 216 Pac. 519; Bruner v. People, 113 Colo. 194, 156 P. (2d) 111; Cahill v. People, 111 Colo. 29, 137 P. (2d) 673.
Whenever there is evidence, not sufficient to require exclusion of the alleged confession, but sufficient to raise a question as to the weight to which it is entitled at the hands of the jury, the court must refer the question of the voluntarity of the confession to the jury under proper instructions. Martz v. People, 114 Colo. 278, 162 P. (2d) 408; Roper v. People, 116 Colo. 493, 179 P. (2d) 232. This procedure was followed in the case at bar.
The defendant in the case at bar was twenty-nine years of age; he was highly educated, having attended a prominent university well into the fourth year; his
Of even greater significance is the fact that it is undisputed that defendant‘s confession closely followed a two hour conference with a spiritual adviser of his own selection.
We conclude that the trial court did not abuse its discretion in receiving the confession of July 24th in evidence, and that under the circumstances here present the admission thereof in evidence did not amount to a denial of due process of law.
Second: Was the corpus delicti sufficiently established by the evidence?
At the close of all the evidence the defendant moved for a directed verdict of not guilty “for the reason that the corpus delicti has not been established without recourse to the alleged confession of the defendant.” The motion was overruled and error is assigned on the ruling.
In Bruner v. People, 113 Colo. 194, 156 P. (2d) 111, we said: “It is well settled in this jurisdiction that the corpus delicti consists of two components: death as a result, and the criminal agency of another as the means, and it is equally settled that the corpus delicti may be established by either direct or circumstantial evidence. Roberts v. People, 11 Colo. 213, 17 Pac. 637; Ausmus and Moon v. People, 47 Colo. 167, 107 Pac. 204; Bunch v. People, 87 Colo. 84, 285 Pac. 766.” The Bruner case is authority for the rule prevailing in this jurisdiction that circumstantial evidence is sufficient to establish
In Lowe v. People, 76 Colo. 603, 234 Pac. 169, we stated:
“Proof that one charged committed a felonious homicide involves three elements; first, the death; second, the criminal agency of another as the cause; third, the identity of the accused as that other. The first two constitute what is known in law as the corpus delicti.” * * * “Each of these elements must be established by the prosecution to the satisfaction of the jury beyond a reasonable doubt. The court, however, is not the judge of the weight of the evidence. When sufficient has been produced to justify a submission to the jury and support a verdict of guilty, should such a verdict be returned thereon, the requirements of the law have been met. This rule applies to each of the elements of the corpus delicti as it does to the proof of the identity of the accused as the perpetrator; no more no less.”
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“That proof may be made by any legal evidence, the same as proof of other facts.”
It is true that a conviction of crime cannot be upheld where it is based upon the uncorroborated confession of the person accused. There must be evidence of the corpus delicti apart from the statements contained in the confession. In the case at bar there is ample evidence, apart from the confession, from which the jury might properly find that the wife of defendant was dead, and that her death was brought about by “the criminal agency of another as the means.” Defendant was the sole companion of his wife at the time of her death. There was blood on his shirt, which he stated was that of his wife. He directed those first upon the scene to the place where her body was found. The body was still warm. The position of the body, the fact that her clothing was not disarranged, the fact that pressure had been applied to both of her wrists and her
Third: Did the trial court err in refusing to strike certain testimony of Dr. Maly on the ground that the same was hearsay?
Dr. Maly was one of two qualified pathologists who performed an autopsy on the body of deceased. On direct examination he testified concerning his external and internal examination of the body and expressed the opinion that death was due to strangulation. On cross-examination by counsel for defendant he stated that the strangulation was caused by pressure applied to the throat, and counsel questioned the witness at length concerning the condition of the larynx of deceased. In direct response to questions of defendant‘s counsel the doctor testified that he examined under a microscope a specimen of the larynx prepared by technicians outside his presence; counsel then pursued the inquiry and developed the fact that the microscopic inspection verified the conclusions to which the witness testified on his cross-examination, namely, that the cause of death was strangulation. No objection was made during the entire examination of the witness on the ground that
The opinion of Dr. Maly, that the cause of death was strangulation, as expressed by him on direct examination, was not predicated upon the results of the microscopic examinations which he made of specimens which he did not himself prepare. All testimony relating to such examinations was developed on cross-examination and without objection throughout the entire duration thereof. It may be that some portions of the testimony of Dr. Maly were subject to timely objection, in the absence of definite tracing of the specimen examined to the body of deceased. It does not follow, however, that all the testimony of the doctor relating to “alleged injuries on the larynx of Mrs. Downey” could be so considered. Furthermore, an accused cannot urge reversal on the ground that a witness, in making responsive answers to questions asked on cross-examination by his counsel, based some of his answers on the assumption of facts concerning which he had no personal knowledge—as in this case, the assumption by Dr. Maly that the specimen examined by him was in fact from the body of deceased. Counsel may not, by his own questions on cross-examination, invite the reception of evidence based upon hearsay, and thereafter assign error upon the admission of that evidence. Particularly is this true when questions are continued
It follows that the court did not err in overruling the motion to strike the evidence to which reference is made in the motion.
Fourth: Did the trial court err in refusing to give instructions tendered by the defendant?
Defendant tendered two instructions, each of which was refused. One of these was as follows: “You are instructed that you must find from the evidence, beyond a reasonable doubt, that the name of the deceased was Lolly Lila Downey, as alleged in the Information, and that if you should fail to so find, beyond a reasonable doubt, it is your duty to acquit the Defendant.”
The insurance policies introduced, as bearing upon the motive of the defendant, were issued upon the life of the deceased under the name of Lila Loly Downey, or Lila L. Downey. The defendant informed Chief of Police Bruce that his wife‘s name was Lolly Lila Downey, and she was so named in the information. Whether her true name was Lila Lolly Downey, or Lolly Lila Downey could not possibly be “material to the merits of the case,” or “prejudicial to the defendant” and under the provisions of section 490, chapter 48, ‘35 C.S.A., the variance, if any, could not warrant the giving of the requested instruction, and no error was committed in denying the same.
The second tendered instruction was as follows:
“What is meant by circumstantial evidence in criminal cases is the proof of facts and circumstances connected with or surrounding the commission of the crime charged; and if these facts and circumstances are sufficient to satisfy you of the guilt of the defendant beyond a reasonable doubt, such proof is sufficient to authorize a verdict of guilty.
The first paragraph of this second tendered instruction was in substance incorporated in the court‘s instruction No. 7. There was no error in refusing that portion of the instruction which in effect would have told the jury that the prosecution was based on circumstantial evidence alone. We have held that confessions, whether oral or written, are direct evidence. Mitchell v. People, 76 Colo. 346, 232 Pac. 685; Ives v. People, 86 Colo. 141, 278 Pac. 792. Since the alleged confession of the defendant was properly admitted in evidence, there was no error in the refusal of the court to instruct as requested.
The defendant was capably represented at the trial, and here, by counsel of ability and experience, and we are persuaded that he was afforded a fair trial in accordance with established rules of law. The assignments upon which he relies for reversal are overruled, and accordingly the judgment is affirmed.
MR. CHIEF JUSTICE HILLIARD and MR. JUSTICE HOLLAND dissent.
MR. CHIEF JUSTICE HILLIARD dissenting.
In the matter of the confession of guilt admitted in evidence, the record here, as I am persuaded, parallels the composite of the records in recent cases determined by the Supreme Court of the United States relative to confessions, cited in the court‘s opinion, namely, Watts v. Indiana, 338 U.S. 49, 69 Sup. Ct. 1347, 93 L. Ed. 1434;