v. Draper , 2021 COA 120 ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 9, 2021
2021COA120
No. 18CA0488, People v. Draper — Crimes — Murder in the
First Degree — Extreme Indifference — Universal Malice
Disagreeing with People v. Garcia, 2020 COA 80, a division of
the court of appeals holds that in a prosecution for extreme
indifference murder a trial court is required to give a jury
instruction defining “universal malice” in a manner consistent with
the supreme court’s definition of the term in Candelaria v. People,
148 P.3d 178 (Colo. 2006).
COLORADO COURT OF APPEALS 2021COA120
Court of Appeals No. 18CA0488
Arapahoe County District Court Nos. 16CR2517 & 16CR3337
Honorable Ben L. Leutwyler III, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
James Anthony Draper,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE BERGER
Richman and Welling, JJ., concur
Announced September 9, 2021
Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Antony Noble, Alternate Defense Counsel, Taylor Ivy, Alternate Defense
Counsel, Lakewood, Colorado, for Defendant-Appellant
¶1 This case requires us to decide whether the trial court erred by
failing to instruct the jury on the definition of “universal malice,” an
element of first degree extreme indifference murder. See
§ 18-3-102(1)(d), C.R.S. 2020. Disagreeing with another division of
this court, we conclude that the trial court erred by failing to define
that term.
¶2 Defendant, James Anthony Draper, appeals multiple
convictions, including three counts of attempted extreme
indifference murder. Draper claims that the following alleged errors
require either the reversal or vacation of his convictions:
 instructional error;
 violations of the Uniform Mandatory Disposition of
Detainers Act (UMDDA), sections 16-14-101 to -108,
C.R.S. 2020;
 improper consolidation;
 the admission of inadmissible evidence at trial; and
 unconstitutional convictions for attempted extreme
indifference murder.
While we agree that the court erred by not instructing the jury on
the definition of “universal malice,” we conclude that this error was
1
constitutionally harmless. Because we reject Draper’s other claims
of error, we affirm his convictions.
Relevant Facts and Procedural History
¶3 Evidence admitted at trial permitted the jury to find the
following facts. Draper repeatedly told his wife, A.D., that if she
ever cheated on him, he would kill her. On at least one occasion,
A.D. told Draper that she had cheated on him.
¶4 Witnesses testified that about a week before A.D. was
murdered, Draper and A.D. argued about A.D.’s affair. A.D.’s
friends testified that A.D. told them that she believed Draper was
going to kill her and that she wanted to leave the relationship but
did not know how to do so. A day or two before A.D. was murdered,
Draper called the man with whom A.D. had the affair and
demanded details of the sexual conduct.
¶5 Then, one morning, the police found A.D. in her apartment
and discovered that she had been shot twice, once in the back of
the head and once in the chest. A forensic pathologist testified that
the bullet to her chest was a lethal injury.
¶6 The next morning, Draper, brandishing a gun, approached a
car and ordered the occupants to get out. While driving that car,
2
Draper shot at other occupied cars, hitting at least three. The
police pursued Draper. During that chase, Draper pointed his gun
directly at no fewer than three police officers.
¶7 The incident ended when an officer crashed his vehicle into
the car Draper was driving. On his arrest, Draper asked the officers
why they had not killed him. During the search incident to arrest,
the police found cocaine in Draper’s pocket. In the car, the police
found two guns, one of which an expert testified at trial was the gun
used to murder A.D.
¶8 In the first filed case, based on the events that occurred after
A.D.’s murder, the prosecution charged Draper with six counts of
attempted extreme indifference murder; three counts of first degree
assault; aggravated robbery; aggravated motor vehicle theft; felony
menacing; vehicular eluding; and possession of a controlled
substance.1
1The prosecution dismissed two attempted extreme indifference
murder counts. As a result, the jury considered four attempted
extreme indifference murder counts.
3
¶9 In a later filed case, the prosecution charged Draper with the
first degree murder of A.D. Over Draper’s objection, the trial court
consolidated the two cases for trial.
¶ 10 Draper’s theory of the case was that he did not kill A.D.;
instead she was murdered by some unidentified person. In his
attempt to explain or mitigate his conduct shortly after A.D.’s
murder, Draper claimed he was distraught when he learned about
A.D.’s death and he tried to commit “suicide by cop” without any
intent to harm anyone else.
¶ 11 The jury found Draper 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. The jury
acquitted Draper of one count of attempted extreme indifference
murder and the three counts of first degree assault. The trial court
sentenced Draper to a total of 400 years in prison for these
convictions.
4
¶ 12 The jury also found Draper guilty of second degree murder for
the murder of A.D. but acquitted him of first degree murder. The
trial court adjudicated Draper a habitual criminal and imposed a
concurrent sentence of ninety-six years in prison.
Jury Instructions
¶ 13 We first address Draper’s contentions of instructional error.
A. The Trial Court Did Not Abuse its Discretion by Denying
Draper’s Request to Instruct the Jury on Certain Lesser
Included Offenses
¶ 14 Draper’s counsel asked the court to instruct the jury on a
number of lesser included offenses. As to the murder of A.D., the
court agreed in part, instructing the jury on second degree murder.
But the court refused to instruct the jury on manslaughter and
criminally negligent homicide, finding that there was no rational
basis on which the jury could acquit Draper of the greater offenses
but convict him of those lesser offenses.
¶ 15 As to the attempted extreme indifference murder counts,
Draper’s counsel requested that the jury be instructed on the lesser
included offenses of attempted manslaughter and attempted
criminally negligent homicide. The trial court instructed the jury on
5
attempted manslaughter but denied an instruction on attempted
criminally negligent homicide.
1. Standard of Review
¶ 16 We review a trial court’s refusal to instruct the jury on lesser
included offenses for an abuse of discretion. People v. Buell, 2017
COA 148, ¶ 31, aff’d, 2019 CO 27. A court abuses its discretion
when its decision is manifestly arbitrary, unreasonable, or unfair,
or if it misapplies the law. People v. Baker, 2021 CO 29, ¶ 29. “A
trial court is only required to give a lesser included offense
instruction when there is ‘a rational basis in the evidence to
support a verdict acquitting him of a greater offense . . . and
convicting him of the lesser offense.’” Buell, ¶ 31 (quoting People v.
Bartowsheski, 661 P.2d 235, 242 (Colo. 1983)).
2. Application
¶ 17 As relevant here, a person commits first degree murder when,
“[a]fter deliberation and with the intent to cause the death of a
person other than himself, he causes the death of that person . . . .”
§ 18-3-102(1)(a). A person commits second degree murder when
that “person knowingly causes the death of a person.”
§ 18-3-103(1), C.R.S. 2020. A person commits the crime of
6
manslaughter if he “recklessly causes the death of another person.”
§ 18-3-104(1)(a), C.R.S. 2020. “Any person who causes the death of
another person by conduct amounting to criminal negligence
commits criminally negligent homicide.” § 18-3-105, C.R.S. 2020.
¶ 18 The court refused to instruct the jury on manslaughter and
criminally negligent homicide because there was no evidence that, if
Draper committed the criminal act, his culpable mental state could
have been anything other than intentional or knowing.
¶ 19 Draper defended against the charge of first degree murder by
claiming that he did not kill A.D. No evidence suggested that A.D.’s
death was the result of an accident or resulted from Draper
consciously disregarding a substantial and unjustifiable risk that
A.D. would be killed. The circumstances of the shooting — two
potentially lethal gunshot wounds — simply made it impossible for
a reasonable jury to find a culpable mental state other than
intentional or knowing. Therefore, the court did not abuse its
discretion by denying Draper’s request to instruct the jury on
manslaughter and criminally negligent homicide.
¶ 20 Similarly, regarding Draper’s rampage, the trial court did not
abuse its discretion by refusing to instruct the jury on attempted
7
criminally negligent homicide. A person commits attempted
manslaughter by taking a substantial step toward recklessly
causing the death of another. § 18-2-101(1), C.R.S. 2020;
§ 18-3-104(1)(a). A person commits attempted criminally negligent
homicide by taking a substantial step toward “caus[ing] the death of
another person by conduct amounting to criminal negligence.”2
§§ 18-3-105, 18-2-101(1). The distinction between a reckless and
criminally negligent mental state is whether the defendant was
aware of the risk posed by his actions. § 18-1-501(3), (8), C.R.S.
2020.
¶ 21 Draper fired shots and hit at least three occupied vehicles. It
simply defies logic to conclude that he did so with criminal
negligence. By Draper’s own theory of defense — that he shot at
other cars in an effort to commit “suicide by cop” — Draper
acknowledged that he acted at least knowingly. Under these
circumstances, the contention that Draper negligently fired a gun
multiple times at numerous persons or was unaware of the risk of
doing so borders on the frivolous. Accordingly, the trial court
2We express no opinion as to whether attempted criminally
negligent homicide is a cognizable offense.
8
correctly rejected an instruction on attempted criminally negligent
homicide.
B. The Trial Court Correctly Refused to Instruct the Jury that
Voluntary Intoxication Was a Defense to the Attempted
Extreme Indifference Murder Charges
¶ 22 Draper next argues 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, both elements of attempted
extreme indifference murder.
¶ 23 Section 18-1-804(1), C.R.S. 2020, provides that evidence of
voluntary intoxication is relevant and admissible for only one
purpose: “to negative the existence of a specific intent if such intent
is an element of the crime charged.” See People v. Zekany, 833 P.2d
774, 778 (Colo. App. 1991). The General Assembly has declared all
offenses with a mental state of “intentionally” to be specific intent
offenses. § 18-1-501(5).
¶ 24 Attempted extreme indifference murder is not a specific intent
crime; instead, it requires that the defendant have the general
intent to act knowingly. See § 18-3-102(1)(d); see also
§ 18-2-101(1); Zekany, 833 P.2d at 778. Draper argues that the
9
court in People v. Jefferson, 748 P.2d 1223, 1233-34 (Colo. 1988),
held that extreme indifference murder requires a heightened mental
culpability beyond knowing. This is a misreading of Jefferson.
Jefferson upheld the constitutionality of the extreme indifference
murder statute against an equal protection challenge, in spite of the
fact that both second degree murder and extreme indifference
murder require a mental state of knowingly, because “[a] more
specific actus reus [was] sufficient to distinguish” the two offenses.
Id. at 1233. Accordingly, specific intent is not an element of
attempted extreme indifference murder, and, by statute, the defense
of voluntary intoxication is unavailable. The trial court correctly
denied Draper’s request.
C. Universal Malice
¶ 25 Draper argues that the trial court reversibly erred by refusing
to define universal malice.
1. The Trial Court Did Not Abuse its Discretion by Refusing to
Give Draper’s Proposed Definition of Universal Malice
¶ 26 Defense counsel tendered a definitional instruction on
universal malice:
“Universal malice” means that depravity of the
human heart, which determines to take life
10
upon slight or insufficient provocation, without
knowing or caring who may be the victim.
The prosecutor objected, stating that case law “does not require a
definition and there is no definition of universal malice.” Defense
counsel further argued: “there has to be a definition of universal
malice.” The trial court rejected the tendered instruction and
declined to otherwise instruct the jury on the meaning of universal
malice.3
¶ 27 A trial court has a duty to correctly instruct the jury on all
matters of law. People v. Espinosa, 2020 COA 63, ¶ 8. We review
de novo whether jury instructions accurately informed the jury of
the relevant governing law. People v. Carbajal, 2014 CO 60, ¶ 10.
A trial court has substantial discretion in formulating jury
instructions if “they are correct statements of the law and fairly and
adequately cover the issues presented.” People v. Nerud, 2015 COA
3 The trial court rejected the tendered instruction based on the
principle from Evans v. People that “a trial court’s use of an excerpt
from an opinion in an instruction is generally an unwise practice.”
706 P.2d 795, 800 (Colo. 1985). As the supreme court explained in
Evans, judicial “opinions and [jury] instructions have very different
purposes.” Id. However, when the supreme court, in one of its
opinions, defines a statutory term (like universal malice), lower
courts must apply the law stated by the supreme court. That does
not constitute an improper use of an excerpt from an opinion.
11
27, ¶ 35 (citation omitted). Thus, we review a trial court’s decision
to give, or not to give, a particular jury instruction for an abuse of
discretion. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011).
¶ 28 Over a century ago, the Colorado Supreme Court described
universal malice as 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.” Longinotti v.
People, 46 Colo. 173, 180-81, 102 P. 165, 168 (1909). This
definition was quoted with approval in Jefferson, 748 P.2d at 1228.
¶ 29 Most recently, however, the Colorado Supreme Court has
described universal malice as “conduct that, by its very nature and
the circumstances of its commission, evidences a willingness to
take human life indiscriminately, without knowing or caring who
the victim may be or without having an understandable motive or
provocation.”4 Candelaria v. People, 148 P.3d 178, 181 (Colo.
4 We rely on the supreme court’s definition of universal malice in
Candelaria v. People, 148 P.3d 178, 181 (Colo. 2006), because the
supreme court in People v. Anderson, 2019 CO 34, ¶ 15, relied on
the Candelaria definition. Anderson does not purport to change the
Candelaria definition of universal malice. In addition, unlike
Candelaria, the issue presented in Anderson was not the definition
of universal malice.
12
2006). This most recent definition of universal malice no longer
includes any reference to the “depravity of the human heart.”
¶ 30 The supreme court is the ultimate arbiter of state law and
when it defines a statutory term, lower courts must apply that
definition. See In re Estate of Ramstetter, 2016 COA 81, ¶ 40.
Defense counsel’s tendered definition of universal malice was not a
correct statement of the law because it did not accurately reflect the
supreme court’s most recent definition of universal malice. “A trial
court may refuse an instruction that contains an incorrect
statement of law.” People v. Tweedy, 126 P.3d 303, 307 (Colo. App.
2005). Therefore, the trial court did not abuse its discretion by
refusing the tendered instruction.
2. The Trial Court Erred by Not Defining Universal Malice
¶ 31 Draper also contends that the trial court erred by failing to
define universal malice. We agree with this contention.
¶ 32 In addition to tendering his definition of universal malice,
defense counsel argued that “there has to be some definition of
universal malice,” citing both Jefferson and Candelaria. Even
though Draper’s tendered instruction incorrectly stated the law, the
tendered instruction as well as his argument that “there has to be a
13
definition of universal malice” put the trial court on notice of
Draper’s request that the jury be given a correct definition of
universal malice. See People v. Garcia, 28 P.3d 340, 349 n.8 (Colo.
2001). Accordingly, this issue was preserved.
¶ 33 A definitional instruction is not required when an elemental
term is “one with which reasonable persons of common intelligence
would be familiar, and its meaning is not so technical or mysterious
as to create confusion in jurors’ minds as to its meaning.” People v.
Deadmond, 683 P.2d 763, 769 (Colo. 1984), superseded by statute,
Ch. 140, sec. 1, § 16-11-204.5(4), 1985 Colo. Sess. Laws 630.
Conversely, words and phrases “that have acquired a technical or
particular meaning, whether by legislative definition or otherwise,”
must be defined for the jury. § 2-4-101, C.R.S. 2020; see Griego v.
People, 19 P.3d 1, 7 (Colo. 2001).
¶ 34 A division of this court recently held that the ordinary
meaning of universal malice is an “unrestricted willingness to do
harm without sufficient justification.” People v. Garcia, 2021 COA
80, ¶ 18. The Garcia division discerned this meaning by combining
the dictionary definitions of “universal” — defined as “including or
covering all or a whole collectively or distributively without limit or
14
notable exception or variation” or “relatively unrestricted in
application,” id. (quoting Webster’s Third New International
Dictionary 2501 (2002)) — and “malice” — defined as an “intention
or desire to harm another usu[ally] seriously through doing
something unlawful or otherwise unjustified,” id. (quoting Webster’s
Third New International Dictionary at 1366).
¶ 35 When a statute uses a term with which reasonable persons of
common intelligence would be familiar, it makes sense for courts to
consult recognized dictionaries to aid in determining that ordinary
meaning or understanding. Griego, 19 P.3d at 9 (turning to the
dictionary for the ordinary meaning of “knowledge”); People v.
Cardenas, 2014 COA 35, ¶ 25 (“The ordinary meaning of the verbs
‘sell,’ ‘exchange,’ ‘barter,’ and ‘lease’ involves the transfer of a right
of ownership or possession.”); People v. Coahran, 2019 COA 6, ¶ 25
(looking to the dictionary for the ordinary meaning of “upon”). But
when courts define complex legal concepts or constructs by
consultation with dictionaries and then do not instruct jurors on
the derived definition, problems arise, as this case well illustrates.
We conclude that the term “universal malice” does not have a
common meaning or understanding.
15
¶ 36 The practice of defining complex legal concepts by
consultation with dictionaries is even more problematic because,
while the appellate judges in Garcia had access to one or more
dictionaries to accomplish this task, the jury has no such
resources. Indeed, the Colorado Supreme Court in Alvarez v.
People, 653 P.2d 1127, 1131 (Colo. 1982), held that “a juror’s
consultation of a dictionary to assist in understanding legal
terminology in the court’s instructions [was] improper.”
¶ 37 More importantly, even assuming that universal malice has a
common meaning, the Garcia definition is not consistent with the
supreme court’s definition of the term. As noted, the supreme court
most recently defined universal malice as “conduct that, by its very
nature and the circumstances of its commission, evidences a
willingness to take human life indiscriminately, without knowing or
caring who the victim may be or without having an understandable
motive or provocation.” Candelaria, 148 P.3d at 181.
¶ 38 Unlike the supreme court’s definition, the definition derived by
the Garcia division does not require a “willingness to take human
life indiscriminately” or doing so “without knowing or caring who
the victim may be.” These are critical subelements of the legal
16
definition of universal malice, an essential element of the crime of
extreme indifference murder that distinguishes it from other
offenses.5
¶ 39 For these reasons, we disagree with the analysis and holding
of Garcia and decline to apply it here. Instead, we conclude that the
trial court erred in not instructing the jury on the definition of
universal malice consistent with the supreme court’s definition in
Candelaria.
3. The Error was Harmless Beyond a Reasonable Doubt
¶ 40 The omission of an element (and by extension the lesser error
of failing to define an element) of an offense in the jury instructions
can be harmless beyond a reasonable doubt if the evidence relating
to that element is overwhelming. See Neder v. United States, 527
U.S. 1, 16-17 (1999); Key v. People, 715 P.2d 319, 323 (Colo. 1986).
¶ 41 That is the case here. In Montoya v. People, the supreme court
described “consciously but indiscriminately shooting into a crowd of
5Indeed, Anderson recently reiterated and emphasized the
“willingness to take [human] life indiscriminately” language from
Candelaria. Anderson, ¶ 15.
17
people” as the “quintessential example” of extreme indifference
murder. 2017 CO 40, ¶ 21.
¶ 42 Draper’s conduct of indiscriminately shooting at various
occupied and unoccupied vehicles is virtually indistinguishable
from the supreme court’s “quintessential example.” “[B]y its very
nature and the circumstances of its commission, [Draper’s conduct]
evidence[d] a willingness to take human life indiscriminately,
without knowing or caring who the victim may be or without having
an understandable motive or provocation.” Candelaria, 148 P.3d at
181.
¶ 43 Because the evidence that Draper acted with universal malice,
as defined by the supreme court, was overwhelming, the trial
court’s failure to define universal malice for the jury was harmless
beyond a reasonable doubt.
UMDDA
¶ 44 Draper next contends that the prison superintendent’s failure
to promptly inform him of his rights under the UMDDA requires
that all his charges be dismissed or, alternatively, that a hearing be
held on his UMDDA claim.
18
A. Additional Facts
¶ 45 Draper was incarcerated in the custody of the Department of
Corrections (DOC) on June 1, 2017, when he was resentenced to
prison in an unrelated case. The Arapahoe County Sheriff issued a
no bond detainer dated June 21, 2017, for the case charging the
murder of A.D. In a pro se document filed in the court on August
18, 2017, Draper purported to invoke his UMDDA right to be tried
within 182 days and claimed that the DOC superintendent failed to
promptly inform him of the detainer.
¶ 46 The prosecution requested a hearing, and, because Draper
was represented by counsel, the trial court ordered defense counsel
to file a written response to the prosecutor’s request for a hearing.
In response to the court’s order, defense counsel filed a document
stating that Draper was invoking his UMDDA right to a speedy
disposition. That document did not assert that the superintendent
failed to promptly inform Draper of his UMDDA rights. The trial
court held a hearing and set the case charging the attempted
extreme indifference murder counts and the case charging the
murder of A.D. for trial. The superintendent advised Draper of his
19
UMDDA rights in writing on September 27, 2017. Draper’s trial
began on January 2, 2018.
B. Applicable Law
¶ 47 Section 16-14-102(2), C.R.S. 2020, provides as follows:
It is the duty of the superintendent of the
institution where the prisoner is confined to
promptly inform each prisoner, in writing, of
the source and nature of any untried
indictment, information, or criminal complaint
against him of which the superintendent has
knowledge . . . .
¶ 48 “[T]he superintendent only has ‘knowledge’ of untried charges
when a detainer has been filed.” People v. Yellen, 704 P.2d 306,
310 (Colo. 1985). A prisoner may request in writing a final
disposition of any untried charges. § 16-14-102(1). The
superintendent must forward this request to the court and the
prosecutor, § 16-14-103(1), C.R.S. 2020, and a trial on the untried
charges must begin within 182 days after receipt of the request,
§ 16-14-104(1), C.R.S. 2020. If the trial does not begin within that
period, the court must dismiss those charges with prejudice. Id.
¶ 49 In addition,
[f]ailure of the superintendent of the institution
where the prisoner is confined to inform a
prisoner, as required by subsection (2) of this
20
section, within one year after a detainer from
this state has been filed with the institution
where the prisoner is confined shall entitle the
prisoner to a dismissal with prejudice . . . .
§ 16-14-102(3). “Otherwise, a violation of the prompt notification
requirement entitles a defendant to a dismissal of the charges
unless the prosecution can demonstrate a lack of prejudice as a
result of that violation.” People v. Glasser, 293 P.3d 68, 76 (Colo.
App. 2011) (emphasis in original) (citing People v. Higinbotham, 712
P.2d 993, 1001 (Colo. 1986)).
C. Application
1. Automatic Dismissal Under Section 16-14-102(3) is Not
Warranted
¶ 50 Dismissal is required if the superintendent fails to inform a
prisoner of a detainer within one year after the detainer has been
filed with the institution where the prisoner is confined.
§ 16-14-102(2), (3).
¶ 51 The earliest possible date that the superintendent could have
had knowledge of the detainer for the case charging the murder of
A.D. was June 21, 2017, the date the Arapahoe County Sheriff
issued the no bond detainer. The superintendent informed Draper
of his UMDDA rights on September 27, 2017, approximately three
21
months after the date of the detainer and well less than a year after
the date of the detainer. Therefore, automatic dismissal under
section 16-14-102(3) is not warranted.
2. Draper is Not Entitled to Any Relief Under his Claim that the
Superintendent Failed to Promptly Notify him of his UMDDA
Rights
¶ 52 Draper claimed in his pro se document that “[t]he failure to
promptly advise me of my detainers and/or the rights allotted me
related to them has prejudiced me and requires dismissal of the
related charges.” But Draper was represented by counsel when he
filed this document, and defense counsel never asserted that the
superintendent failed to promptly inform Draper of his rights under
the UMDDA.
¶ 53 A criminal defendant is not entitled to hybrid representation —
self-representation and representation by counsel. See People v.
Arguello, 772 P.2d 87, 92 (Colo. 1989). It follows that a trial court
may disregard pro se filings by a represented defendant. See, e.g.,
People v. Gess, 250 P.3d 734, 737 (Colo. App. 2010). Indeed, the
division in Gess concluded that the defendant’s pro se motion was
insufficient to invoke his UMDDA rights. Id. We apply Gess here
22
and conclude that Draper’s pro se UMDDA document was
ineffective for any purpose.
¶ 54 Even assuming that Draper’s pro se document preserved this
claim for review, we conclude that Draper is not entitled to any
relief.
¶ 55 As discussed above, the earliest possible date that the
superintendent could have had knowledge of the detainer for the
case charging the murder of A.D. was June 21, 2017. Assuming
Draper could have invoked his right to a speedy disposition under
the UMDDA on June 21, 2017, and that the court would have
received Draper’s request on the very same day, the statutory
deadline for Draper’s trial would have been December 20, 2017 (182
days later). Draper’s trial began on January 2, 2018, thirteen days
after December 20, 2017.
¶ 56 The only prejudice Draper claims on appeal is a longer
detention. True, the prosecution bears the burden to prove that the
defendant was not prejudiced by the failure to give prompt notice.
Higinbotham, 712 P.2d at 997-98. But Draper does not cite, nor are
we aware of, any authority to support his claim that there is a
23
presumption that any delay in promptly notifying a defendant of his
UMDDA rights is prejudicial.
¶ 57 In fact, in Martin v. People, 738 P.2d 789, 793 n.2 (Colo. 1987),
the supreme court upheld the trial court’s determination that a
six-day delay was not prejudicial. There is no material difference
between the six-day delay in Martin, and the possible thirteen-day
delay in this case. Accordingly, we reject this claim.
3. Draper’s Trial Began Within the 182-Day Deadline
¶ 58 To the extent Draper claims that the trial court did not bring
him to trial within the time required by the UMDDA, the record
disproves that argument. Even assuming Draper’s pro se document
(received by the court on August 18, 2017) invoked his right to be
brought to trial within 182 days, Draper was brought to trial within
the statutory timeframe. Draper’s trial began on January 2, 2018,
137 days after the court received his pro se document.
¶ 59 For all of these reasons, Draper is not entitled to any relief
under the UMDDA.
24
The Trial Court Did Not Abuse its Discretion by Consolidating
Draper’s Two Cases
¶ 60 Draper argues that the trial court abused its discretion by
consolidating the separately filed cases involving the murder of A.D.
and the charges arising from Draper’s rampage.
A. Preservation and Standard of Review
¶ 61 A pretrial objection to consolidation is sufficient to preserve
the issue for appeal. Bondsteel v. People, 2019 CO 26, ¶ 29.
Draper objected to the prosecution’s motion to consolidate.
Therefore, this issue is preserved.
¶ 62 We review a trial court’s decision to consolidate separate
charges under Crim. P. 13 for an abuse of discretion. Id. at ¶ 32.
¶ 63 Crim. P. 13 provides, in pertinent part, that, “[s]ubject to the
provisions of [Crim. P.] 14, the court may order two or more
indictments, informations, complaints, or summons and complaints
to be tried together if the offenses . . . could have been joined in a
single indictment, information, complaint, or summons and
complaint.” “Accordingly, consolidation requires both that joinder
would have been proper under Crim. P. 8(a)(2) and that the
25
consolidation would not result in prejudice within the meaning of
Crim. P. 14.” Bondsteel, ¶ 34.
¶ 64 Draper contends that consolidation was improper because not
all of the evidence was cross-admissible (meaning admissible in
each case had the cases been tried separately) and because
consolidation prejudiced him. Neither argument has merit.
B. Joinder Would have been Proper under Crim. P. 8(a)(2)
Crim. P. 8(a)(2) allows for the permissive
joinder of two or more offenses in the same
indictment or information if they are (1) “of the
same or similar character”; (2) “based on two
or more acts or transactions connected
together”; or (3) based on two or more acts or
transactions “constituting parts of a common
scheme or plan.”
Buell, 2019 CO 27, ¶ 18 (quoting Crim. P. 8(a)(2)). Transactions
may be “connected together” when they involve interrelated proof.
See People v. Knight, 167 P.3d 147, 151 (Colo. App. 2006).
¶ 65 The record supports the trial court’s determination that the
two cases were based on two or more acts or transactions
“connected together.” A.D. was murdered less than two days before
Draper stole a car at gunpoint and shot at other cars
indiscriminately as he drove. Firearms experts testified that one of
26
the guns Draper had with him after the police chase matched the
gun that was used to murder A.D. Both crimes occurred within
about ten miles of each other.
¶ 66 In addition, most, if not all, of the evidence was
cross-admissible as direct evidence of guilt, res gestae (“evidence
that is closely related in both time and nature to the charged
offense” People v. Quintana, 882 P.2d 1366, 1373 (Colo. 1994)), or
under CRE 404(b).6 For example, evidence that Draper was
distraught about the death of his wife when he stole a car from its
owner at gunpoint, shot at other cars on the road, and pointed his
gun at multiple police officers was directly relevant to the attempted
extreme indifference murder counts as evidence of his mental state.
Evidence that Draper stole a car from its owner at gunpoint less
than two days after his wife was shot in the head and chest was
admissible to fully explain the charged conduct to the jury as res
gestae. Id. Evidence that the same gun used to kill A.D. was found
6 Draper also argues that the voluminous nature of the evidence
that was relevant only to one of the cases warrants reversal. Draper
does not cite, nor are we aware of, any authority holding that the
volume of evidence against the defendant in each case is relevant to
the joinder inquiry under Crim. P. 8(a)(2). Accordingly, we reject
this argument.
27
in the vehicle Draper hijacked was relevant to prove the identity of
A.D.’s murderer.
¶ 67 Accordingly, joinder would have been proper under Crim. P.
8(a)(2).
C. Consolidation Did Not Prejudice Draper Within the Meaning of
Crim. P. 14
¶ 68 To show that a trial court abused its discretion by
consolidating cases, “the defendant must demonstrate that (1) the
joinder caused actual prejudice, and (2) the trier of fact was unable
to separate the facts and legal principles applicable to each offense.”
Knight, 167 P.3d at 151. When evidence is cross-admissible in
separate trials, there is no prejudice in consolidating the cases.
Buell, 2017 COA 148, ¶ 16.
¶ 69 As analyzed above, most, if not all, of the evidence was
cross-admissible as direct evidence of guilt, res gestae, or under
CRE 404(b). Most importantly, Draper’s theory of defense — that
he was distraught by the death of his wife and intended to commit
“suicide by cop” when he shot at other cars and pointed his gun at
police officers — eliminated any possibility of unfair prejudice.
28
¶ 70 Draper also failed to demonstrate that the jury was unable to
separate the facts and legal principles applicable to each offense. In
People v. Bondsteel, 2015 COA 165, ¶ 53, aff’d, 2019 CO 26, the
court reasoned that verdicts by which the defendant was acquitted
of five charges and convicted of a lesser charge showed that the jury
was able to separate the facts and legal theories involved in each
offense. See also People v. Garcia, 2012 COA 79, ¶¶ 29-30
(observing that a split verdict “indicates that the jury was able to
separate the facts, legal principles, and defenses applicable to these
charges from others”). When the jury is instructed that it must
consider each charge separately from all other charges, a reviewing
court must presume that the jury followed these instructions unless
contrary evidence is shown. People v. Curtis, 2014 COA 100, ¶ 23.
¶ 71 The jury convicted Draper of some charges and acquitted him
of others. The jury was also instructed that
[e]ach count charges a separate and distinct
offense and the evidence and the law
applicable to each count should be considered
separately, uninfluenced by your decision as to
any other count. The fact that you may find
Mr. Draper guilty or not guilty of one of the
offenses charged, should not control your
verdict as to any other offense charged against
Mr. Draper.
29
¶ 72 Absent any evidence that the jury was unable to follow this
instruction (of which there is none) or that the jury was confused by
multiple counts and charges, we presume the jury followed these
instructions. Id.¶ 73 In sum, the trial court did not abuse its discretion by
consolidating Draper’s cases for trial.
Evidentiary Challenges
¶ 74 Draper contends that the trial court violated his constitutional
right to confrontation and state evidence rules by admitting hearsay
statements made by A.D. He also argues that the trial court
admitted certain evidence in violation of CRE 404(b).
A. Preservation and Standard of Review
¶ 75 A claim of evidentiary error is preserved for review when an
objection sufficiently alerts “the trial court to a particular issue in
order to give the court an opportunity to correct any error.” People
v. Pahl, 169 P.3d 169, 183 (Colo. App. 2006).
¶ 76 “We review a trial court’s evidentiary rulings for an abuse of
discretion.” Campbell v. People, 2019 CO 66, ¶ 21. A court abuses
its discretion when its decision is manifestly arbitrary,
30
unreasonable, or unfair, or if it misapplies the law. Baker, ¶ 29.
Mere disagreement with the trial court’s ruling does not constitute
an abuse of discretion. See People v. Shari, 204 P.3d 453, 465
(Colo. 2009). Instead, a reviewing court must defer to the trial
court’s ruling so long as it falls within the range of possible
outcomes. Id. A claim that the trial court violated the defendant’s
Confrontation Clause rights is reviewed de novo. People v. Phillips,
2012 COA 176, ¶ 85.
B. Confrontation Clause
¶ 77 The Federal Constitution provides, in relevant part, that “[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI.
Under this Amendment, testimonial hearsay must be excluded
when the declarant is unavailable and there has been no prior
opportunity for cross-examination by the defendant. Crawford v.
Washington, 541 U.S. 36, 68-69 (2004). But only testimonial
hearsay statements are subject to exclusion under the
Confrontation Clause; nontestimonial hearsay statements are only
subject to state rules of evidence. Raile v. People, 148 P.3d 126,
130 (Colo. 2006).
31
¶ 78 “[S]tatements that were made under circumstances which
would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial” are generally
considered testimonial. Crawford, 541 U.S. at 52.
¶ 79 The challenged statements include A.D.’s statements that
Draper threatened to kill her, that she told Draper she cheated on
him, and that she wanted to leave Draper but did not know how.
A.D. made the challenged statements to friends and family
members. She made these statements while speaking with friends,
getting her hair done, and working. These statements were not
“made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use
at a later trial.” Id. Accordingly, these statements were not
testimonial, a determination which precludes a finding of a
Confrontation Clause violation.
C. CRE 807
¶ 80 Draper also argues that the admission of certain hearsay
statements violated state evidence rules. He specifically contends
32
that the trial court erred by finding that these statements had
circumstantial guarantees of trustworthiness under CRE 807.7
¶ 81 Hearsay is a “statement other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” CRE 801(c). Hearsay isn’t
admissible unless an exception applies. CRE 802, 803, 804, 807.
CRE 807 provides, in pertinent part, that
[a] statement not specifically covered by Rule
803 or 804 but having equivalent
circumstantial guarantees of trustworthiness,
is not excluded by the hearsay rule, if the
court determines that (A) the statement is
offered as evidence of a material fact; (B) the
statement is more probative on the point for
which it is offered than any other evidence
which the proponent can procure through
reasonable efforts; and (C) the general
purposes of these rules and the interests of
justice will best be served by admission of the
statement into evidence.
¶ 82 “In considering the trustworthiness of a statement, courts
should examine the nature and character of the statement, the
relationship of the parties, the probable motivation of the declarant
7With one possible exception (relating to a discussion about
abortion), Draper does not contend that these hearsay statements
were irrelevant.
33
in making the statement, and the circumstances under which the
statement was made.” People v. Jensen, 55 P.3d 135, 139 (Colo.
App. 2001).
¶ 83 The following chart contains our analysis of the hearsay
statements Draper challenges on appeal.8
Evidence Preservation Analysis
Talisa Brown testified Draper The trial court considered
that “[A.D.] said objected to the fact that A.D. and
Draper made three the admission Brown were friends; that
specific threats of this these statements
against her and that evidence concerned A.D.’s
[A.D.] said she told under CRE relationship with her
Draper she cheated 807, so this husband, a topic with
on him, that claim was which she would have
admission changed preserved for been intimately familiar;
their relationship, she appeal. See that A.D. did not have an
wanted to leave him, Pahl, 169 P.3d apparent motive to lie;
she was unhappy and at 183. that these statements
worried for her, her were made in the course
kids, and Draper, and of regular conversation;
she felt like a and that A.D.’s demeanor
mistress/second changed when she made
wife.” these statements to
Brown. The trial court
did not abuse its
discretion by finding,
based on these factors,
that these statements had
circumstantial guarantees
of trustworthiness.
8To avoid any mischaracterization of Draper’s claims, we quote
directly from Draper’s opening brief.
34
Evidence Preservation Analysis
Belinda Godwin Draper The trial court considered
testified that “[A.D.] objected to the fact that A.D. and
said she and Draper the admission Godwin were coworkers
had been arguing, of this along with the other
Draper was causing evidence factors above to find that
her sadness, and she under CRE these statements had
needed a 807. Thus, circumstantial guarantees
vacation/break. this claim of of trustworthiness. We
Godwin also testified error was perceive no abuse of
to a specific occasion preserved for discretion.
in which Draper appeal.
manipulated [A.D.],
as represented to her
by [A.D.].”
Makia Sharp testified Draper The trial court did not
that “[A.D.] voiced objected to abuse its discretion by
concerns about her this testimony considering the fact that
marriage to Draper, under CRE A.D. and Sharp were
she wanted to get 807, so this friends (who considered
away from Draper, claim of error each other to be like
she wanted out of the was preserved sisters) along with the
marriage, that Draper for appeal. other factors detailed
was going to kill her above to find that these
so she had to get statements had
away (repeatedly), circumstantial guarantees
that she was tired, of trustworthiness.
and that Draper left
his gun in her purse.”
35
Evidence Preservation Analysis
Antoine Webb Draper The trial court considered
testified that “[A.D.] objected to the fact that A.D. and
told him, or at least this testimony Webb were once
her social media under CRE romantically involved
account told him, 807, so this along with the other
that she loved him, claim of error factors detailed above to
which was unusual.” was preserved find that this statement
for appeal. had circumstantial
guarantees of
trustworthiness. We fail
to see how this statement
had circumstantial
guarantees of
trustworthiness.
Therefore, the trial court
abused its discretion by
admitting this statement
under CRE 807.
36
Evidence Preservation Analysis
Ebony Barnes At the pretrial We need not resolve
testified that “[A.D] hearing, whether this claim of
nonchalantly said she defense error was preserved for
needed to get away counsel did appeal because we
from Draper, he was not object to conclude that the trial
going to killer [sic] this evidence court did not abuse its
her, and she was until after the discretion by finding that
worried about her court ruled this evidence had the
kids.” that the circumstantial guarantees
statements of trustworthiness
were required by CRE 807.
admissible The trial court considered
under CRE the fact that Barnes and
807. Thus, A.D. were friends and that
this claim of A.D. made these
error may not statements while Barnes
have been was doing her hair along
preserved for with the other factors
appeal. See detailed above to find that
Wilson v. these statements had
People, 743 circumstantial guarantees
P.2d 415, 419 of trustworthiness. We
(Colo. 1987). perceive no abuse of
discretion.
37
Evidence Preservation Analysis
Stasha Wells testified Draper The trial court did not
that “[A.D.] told her, objected to abuse its discretion by
after a third injury this testimony considering the fact that
she saw [A.D.] with under CRE Wells and A.D. were
and after much 807, so this friends along with the
questioning, that she claim of error other factors detailed
had ‘gotten into’ an was preserved above to find that these
argument with for appeal. statements had
Draper, that he had circumstantial guarantees
strangled her to the of trustworthiness.
point of passing out,
that the Monday
before her death
[A.D.] reiterated how
she wanted to be
done with Draper and
their marriage but
she did not know how
to be done with him,
that Draper was going
to kill her, and that
Draper would not
leave her alone.”
Blair Jackson testified Draper The trial court considered
about “a letter and objected to the fact that Jackson and
voicemail in which this testimony A.D. were coworkers along
[A.D.] [alleged] Draper under CRE with the other factors
told her he would 807, so this detailed above to find that
harm or kill her if he claim of error these statements had
did not get what he was preserved circumstantial guarantees
wanted.” for appeal. of trustworthiness. We
perceive no abuse of
discretion.
38
Evidence Preservation Analysis
Javon Barker testified At the pretrial We need not resolve
that “[A.D.] said she hearing, whether this claim of
and Draper were defense error was preserved for
having issues, he counsel did appeal because we
thought she was not object to conclude that the trial
cheating on him, she this evidence court did not abuse its
did not want to do until after the discretion by finding that
anything, she wanted court ruled this evidence had the
to be married and to that the circumstantial guarantees
give it a try, Draper statements of trustworthiness
told her how to dress were required by CRE 807.
and put on makeup admissible The trial court considered
to appear less under CRE the fact that Barker and
attractive, she relies 807. Thus, A.D. were cousins along
on Draper for rides, this claim of with the other factors
and Draper accused error may not detailed above to find that
her of cheating.” have been these statements had
preserved for circumstantial guarantees
appeal. See of trustworthiness. This
Wilson, 743 does not amount to an
P.2d at 419. abuse of discretion.
¶ 84 In addition to his argument that the above statements lacked
circumstantial guarantees of trustworthiness, Draper also argues
that the fact that seven witnesses testified to the same evidence
violated CRE 807(B) and (C).
¶ 85 CRE 807(B) requires the statement to be “more probative on
the point for which it is offered than any other evidence which the
proponent can procure through reasonable efforts.” The trial court
found that A.D.’s statements to her friends and family were more
39
probative than any other evidence available to the prosecution
because A.D. and Draper “were in a position to know better than
anyone else the nature of their relationship.” True, the trial court
allowed multiple witnesses to testify to statements A.D. made to
them before she was murdered. But A.D.’s statements that Draper
had threatened to kill her, that she and Draper argued, and that
she wanted to leave the relationship dealt with different topics.9
Accordingly, the trial court did not abuse its discretion by admitting
the challenged statements under CRE 807.10
9 CRE 807(C) requires that the “general purposes of these rules and
the interests of justice will best be served by admission of the
statement into evidence.” Draper’s arguments that the admission of
these statements violated CRE 807(C) and that discussions about
abortion were irrelevant are underdeveloped. We do not address
underdeveloped arguments. Antolovich v. Brown Grp. Retail, Inc.,
183 P.3d 582, 604 (Colo. App. 2007).
10 Draper may also challenge the admission of A.D.’s statements
under CRE 404(b). We conclude that many of A.D.’s statements
may have been admissible as res gestae to fully explain the charged
conduct to the jury. See People v. Quintana, 882 P.2d 1366, 1373
(Colo. 1994). Alternatively, this evidence may have been admissible
to show Draper’s state of mind, the absence of mistake or accident,
or motive as direct evidence of guilt or under CRE 404(b). A trial
court’s decision to admit evidence may be defended by any ground
supported by the record, even if that ground was not considered by
the trial court. Quintana, 882 P.2d at 1371.
40
D. CRE 404(b)
¶ 86 CRE 404(b)(1) provides that “[e]vidence of any other crime,
wrong, or act is not admissible to prove a person’s character in
order to show that on a particular occasion the person acted in
conformity with the character.” However, “[t]his evidence may be
admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident.” CRE 404(b)(2).
¶ 87 Courts determine the admissibility of uncharged crimes,
wrongs, or acts under CRE 404(b) by applying a four-step analysis:
(1) the evidence must relate to a material fact; (2) the evidence must
be logically relevant to that material fact; (3) the logical relevance
must be independent of the prohibited character inference
described above; and (4) the probative value of the evidence must
not be substantially outweighed by the danger of unfair prejudice.
People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990).
¶ 88 The following chart contains our analysis of the evidence
Draper claims was admitted in violation of CRE 404(b).
41
Evidence Preservation Analysis
Tyseonna Draper Draper objected This evidence is not
testified that to this evidence governed by CRE 404(b)
“Draper asked her under CRE because it is not evidence
if she knew [A.D.] 404(b), so this of other crimes, wrongs, or
to be cheating on claim of error acts. Instead, this evidence
him and that she was preserved was directly relevant to
knew Draper to for appeal. See show Draper’s state of
have taken [A.D.]’s Pahl, 169 P.3d mind and motive.
phone to text at 183. Accordingly, the trial court
‘some dude.’” did not abuse its discretion
by admitting this evidence.
Antoine Webb Draper objected Regardless of whether this
testified that he to the evidence exact claim of error was
thought “Draper of the phone preserved for appeal, we
was parading as call between conclude that the court did
[A.D.] to uncover if himself and not err by admitting this
she was cheating Webb. evidence. Evidence that
on him.” However, he did Draper was “parading” as
not specifically A.D. to uncover any
object to the cheating is not a crime,
evidence that wrong, or other act.
Webb thought Instead, this evidence was
Draper was directly relevant to show
parading as Draper’s state of mind and
A.D. to uncover motive. Accordingly, the
any cheating. trial court did not abuse its
This claim of discretion by admitting this
error may not evidence.
have been
preserved for
appeal. See
People v.
Ujaama, 2012
COA 36, ¶ 37.
42
Evidence Preservation Analysis
Makia Sharp Draper objected Evidence that Draper had a
testified about “the to Sharp’s gun (the type of weapon
gun Draper had testimony about used to carry out both
and about how the car accident crimes) was admissible as
Draper and [A.D.] and injuries to direct evidence of guilt.
argued about A.D. but not to Evidence that Draper and
[A.D.]’s the specific A.D. argued about A.D.’s
conversations with testimony conversations with Webb
Webb, of which challenged on related to the material fact
Draper alleged he appeal. of Draper’s state of mind
had a recording.” Accordingly, and motive. This evidence
this issue was was logically relevant to
not preserved Draper’s state of mind and
for appeal. motive. The relevance of
Ujaama, ¶ 37. this evidence was
We review independent of the
unpreserved prohibited character
claims for plain inference. This evidence
error. Hagos v. was not unfairly
People, 2012 CO prejudicial. Thus, this
63, ¶ 14. evidence was admissible
under CRE 404(b).
Because this evidence was
admissible as direct
evidence of guilt and under
CRE 404(b), the court did
not err (much less plainly
err) by admitting this
evidence.
43
Evidence Preservation Analysis
Stasha Wells Draper objected Evidence that Draper
testified about to this evidence injured A.D. and that he
“[A.D.]’s injuries under CRE controlled her phone was
from Draper, 404(b), so this logically relevant to
always while she claim is Draper’s motive, intent,
was pregnant, and preserved for and absence of mistake.
controlling her appeal. The relevance of this
phone.” evidence was independent
of the prohibited character
inference and not unfairly
prejudicial. Therefore, the
trial court did not abuse its
discretion by admitting this
evidence under CRE
404(b).
44
Evidence Preservation Analysis
Ebony Barnes Draper objected As analyzed above,
testified “to [A.D.]’s to this evidence evidence that Draper
injuries, to Draper under CRE owned guns was admissible
controlling her 404(b), so this as direct evidence of guilt.
phone, to his claim is Also, as analyzed above,
owning guns, and preserved for evidence of A.D.’s injuries
to them fighting.” appeal. and Draper controlling
A.D.’s phone was
admissible evidence of
motive, intent, and absence
of mistake under CRE
404(b). Evidence that A.D.
and Draper fought was
likewise logically relevant
to Draper’s motive, intent,
and absence of mistake.
The relevance of this
evidence was independent
of the prohibited character
inference and not unfairly
prejudicial. Thus, the trial
court did not abuse its
discretion by admitting this
evidence under CRE
404(b).
Nyaire Humphrey Draper objected As already analyzed,
testified “to the to this evidence evidence that Draper
many fights, under CRE owned a gun was
including one the 404(b), so this admissible as direct
night before claim is evidence of guilt, and
[A.D.]’s death, that preserved for evidence that Draper and
Draper and [A.D.] appeal. A.D. fought was admissible
had, and the many under CRE 404(b).
guns that Draper Accordingly, the trial court
had.” did not abuse its discretion
by admitting this evidence.
45
Tamika Smith was Draper objected As pertinent here, plain
impeached with to the error must be substantial
“Exhibit 299, admission of — meaning that the error
which revealed exhibit 299, a so undermined the
Draper to be video interview fundamental fairness of the
frequently caught of Smith. trial itself as to cast serious
up in something However, he did doubt on the reliability of
bad, disrespectful not object to the conviction. Hagos,
of people generally, these ¶ 14. Any error was not
in trouble with the statements substantial because the
law often, scared under CRE evidence challenged on
of going back to 404(b). appeal was much less
jail, prepared to An issue is inculpatory than the
flee, unreliable, unpreserved for admissible evidence that
and a bad parent.” review when an Draper threatened to kill
objection was A.D. and was found with
made in the the gun used to kill her
trial court, but less than two days after
on “unspecific she was found shot to
grounds which death. Accordingly, the
would not have admission of this evidence
alerted the trial did not so undermine the
court to the fundamental fairness of the
issue of which trial or cast serious doubt
the defendant on the reliability, and any
now seeks error was not plain.
review.”
Ujaama, ¶ 37.
Because Draper
did not object to
these
statements
under CRE
404(b), this
claim was not
preserved, and
we review it only
for plain error.
Hagos, ¶ 14.
46
E. Harmlessness
¶ 89 We have concluded that the court abused its discretion by
admitting Webb’s testimony that A.D. told him through social media
that she loved him. We now conclude that this error was harmless.
Additionally, assuming that any of the other evidence addressed
above was improperly admitted, any such error does not require
reversal.
¶ 90 “[W]e review nonconstitutional trial errors that were preserved
by objection for harmless error.” Hagos, ¶ 12. “[A]n objected-to
trial error is harmless if there is no reasonable possibility that it
contributed to the defendant’s conviction.” Pernell v. People, 2018
CO 13, ¶ 22. “[T]he strength of the properly admitted evidence
supporting the guilty verdict is clearly an ‘important consideration’
in the harmless error analysis.” Id. at ¶ 25 (quoting Crider v.
People, 186 P.3d 39, 43 (Colo. 2008)).
¶ 91 As explained above, Draper’s conduct of shooting and hitting
at least three occupied vehicles as he drove down the street
constituted the quintessential example of attempted extreme
indifference murder. The inculpatory value of this undisputed
47
evidence completely overshadowed the inculpatory value of the
challenged CRE 807 or CRE 404(b) evidence.
¶ 92 Regarding Draper’s conviction for the murder of A.D., the
inculpatory value of the admissible evidence that one of the guns
found in the car Draper hijacked was the gun used to murder A.D.
likewise completely overshadowed the inculpatory value of the
challenged CRE 807 or CRE 404(b) evidence. Therefore, we
conclude that the trial court’s erroneous admission of Webb’s
testimony was harmless and that even if any of the other challenged
CRE 807 or CRE 404(b) evidence was improperly admitted, any
error was harmless.
Attempted Extreme Indifference Murder
¶ 93 Finally, Draper contends that his convictions for attempted
extreme indifference were unconstitutional.
A. Equal Protection
¶ 94 Draper argues that attempted extreme indifference murder, a
class 2 felony, and illegal discharge of a firearm, a class 5 felony,
proscribe the same conduct but impose different penalties, thereby
violating his right to equal protection of the laws.
48
¶ 95 Equal protection of the laws is guaranteed by the United
States and Colorado Constitutions. U.S. Const. amend. XIV, § 1;
Colo. Const. art. 2, § 25; Howard v. People, 2020 CO 15, ¶ 12. In
Colorado (but not under the United States Constitution), a criminal
statute violates equal protection when it “proscribe[s] the same
criminal conduct” as another statute but “with disparate criminal
sanctions,” and when “separate statutes [proscribe] with different
penalties what ostensibly might be different acts, but [offer] no
intelligent standard for distinguishing the proscribed conduct.”
People v. Castro, 657 P.2d 932, 940 (Colo. 1983) (quoting People v.
Marcy, 628 P.2d 69, 74-75 (Colo. 1981)), overruled on other grounds
by West v. People, 2015 CO 5; see also Howard, ¶ 12.
¶ 96 A review of the statutory definitions of attempted extreme
indifference murder and illegal discharge of a firearm reveals an
intelligent standard to distinguish the conduct proscribed by these
offenses that justifies the resulting difference in penalty.
¶ 97 Extreme indifference murder has the following elements: (1)
under circumstances evidencing an attitude of universal malice
manifesting extreme indifference to the value of human life
generally; (2) knowingly engaging in conduct which creates a grave
49
risk of death to another; and (3) thereby causing the death of
another. § 18-3-102(1)(d). Criminal attempt is further defined as
“acting with the kind of culpability otherwise required for
commission of an offense” and engaging in conduct constituting a
substantial step, which is defined as “any conduct, whether act,
omission, or possession, which is strongly corroborative of the
firmness of the actor’s purpose to complete the commission of the
offense.” § 18-2-101(1).
¶ 98 By contrast, illegal discharge of a firearm has the following
elements: (1) knowingly or recklessly discharging a firearm; and (2)
into any dwelling or any other building or occupied structure, or
into any motor vehicle occupied by any person. § 18-12-107.5(1),
C.R.S. 2020.
¶ 99 There are substantial differences between the elements of
these crimes. Accordingly, there is an intelligent standard to
distinguish these two crimes that justifies the difference in penalty,
and there is no equal protection violation.11
11Draper also apparently alleges that his conviction violated the
separation of powers doctrine. This argument is underdeveloped,
so we do not address it. Antolovich, 183 P.3d at 604.
50
B. Vagueness
¶ 100 Draper finally contends that he was not on notice that he
could be guilty of attempted first degree extreme indifference
murder if no one was injured. To the extent we understand this
argument, we reject it.
¶ 101 The completed crime of extreme indifference murder requires
that the defendant “cause[] the death of another.” See
§ 18-3-102(1)(d). Draper was convicted of attempted extreme
indifference murder. Attempt crimes require proof that the actor
took a substantial step toward, but did not complete, the crime.
§ 18-2-101(1); People v. Buerge, 240 P.3d 363, 367 (Colo. App.
2009). In Castro, 657 P.2d at 941, the supreme court held that a
substantial step required for a conviction of attempted extreme
indifference murder is “conduct which poses a real and proximate
risk of death to the victim.” Applying Castro, the supreme court in
People v. Ramos, 708 P.2d 1347, 1350 (Colo. 1985), held that the
proper inquiry was not the extent of the victim’s injuries but the
defendant’s conduct. Accordingly, the supreme court rejected the
argument that proof of a significant injury was required to establish
attempted extreme indifference murder. Id.51
¶ 102 Draper’s conduct of shooting at multiple occupied vehicles
posed a real and proximate risk of death to the victims regardless of
whether any of the victims sustained injuries. Therefore, we reject
Draper’s vagueness challenge.
Conclusion
¶ 103 The judgment of conviction is affirmed.
JUDGE RICHMAN and JUDGE WELLING concur.
52