At around oclock in the afternoon of July 11, 1989, brothers Fernando and Joel Jabol, Alex Tano and Ferdinand Alvero, together with others, were in the house of Domingo Lipas located in Kalayaan, Gao, Quezon City.
Patrolman Rolando Maniquiz of the Quezon City Police Force, who was assigned to conduct the investigation, went to the East Avenue Medical Center to interview the victims, but they were hesitant to talk.
Westfall, Solicitor General, Paul Koehler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee. Vela, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant. Lucero, appeals from the judgments of conviction entered upon jury verdicts finding him guilty of numerous offenses.
Complainant Alex Tano y Lucero and Ferdinand Alvero y Visda in Criminal Case No. Subsequently, accused-appellant, through the Public Attorney, informed the Court that he could not file his Reply Brief because the records of the case do not contain the transcript of the testimony of Joel Jabol, the only eyewitness who testified for the prosecution.
FIRST ASSIGNMENT OF ERROR THE LOWER COURT ERRED IN NOT FINDING THAT THE EVIDENCE OF PROSECUTION TRANSGRESSED THE CONSTITUTIONAL DUE PROCESS CLAUSE.
We affirm in part, vacate in part, and remand with directions.
While defendant was driving on a two-lane mountain highway, he fell asleep at the wheel.
As consistently held by this Court, an unexpected and sudden attack which renders the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack constitutes alevosia or treachery.
A felony is frustrated where the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator, For the defense of alibi to prosper, an accused should prove, not only that he was at some other place at the time of the commission of the crime, but that also it would have been physically impossible for him to be at the locus delicti or within its immediate vicinity.The jury was informed of defendant's admission that he had consumed drugs and that, although defendant knew he was “dozing off,” he continued to drive because he “thought he could make it.”Further, a toxicologist called by the prosecution testified that cocaine causes the user's body to go through a tripartite cycle. Here, as noted, the prosecution's theory of the case was that defendant, after “bingeing” on drugs and some alcohol, was in the “crash” phase of a cocaine high, which caused his body to shut down. Neither party contested the blood alcohol content of defendant's blood. The jury was also instructed that:‘DEADLY WEAPON’ means any of the following, which in the manner it is used or intended to be used is capable of producing death or serious bodily injury: any weapon, device instrument, material or substance, whether animate or inanimate. Finally, we are not persuaded by defendant's last contention of trial court error in the elements instruction on possession of drug paraphernalia. S.1998, provides that: A person commits possession of drug paraphernalia if he possesses drug paraphernalia and knows or reasonably should know that the drug paraphernalia could be used under circumstances in violation of the laws of this state. Defendant was convicted of three counts of careless driving resulting in death. Last, although we disagree with defendant's contention that an amendment to his mittimus increased his sentence, we do remand for correction of other error.First, the user experiences a “rush,” when the initial euphoric effect is registered on the central and peripheral nervous systems. Garner, 781 P.2d 87, 89 (Colo.1989), our supreme court confirmed that vehicular homicide or assault while intoxicated were strict liability crimes, and stated:[T]he conduct at issue for purposes of proximate cause is the voluntary act of driving while intoxicated. Rather, both counsel informed the jury that blood tests determined defendant's blood alcohol level to be zero. A motor vehicle may be considered to be a deadly weapon. Specifically, he argues for the first time on appeal that the statutory elements of the crime were revised by the General Assembly in 1992 but not incorporated into the instruction in terms of requiring a finding that defendant knew he was putting the drug paraphernalia to an illegal use. Here, the jury was not specifically instructed that it must find that defendant knew or should know that the drug paraphernalia could be used in violation of state law. Viduya, 703 P.2d 1281 (Colo.1985), for his argument that vehicular homicide and vehicular assault constitute singular offenses. However, to give the greatest effect to the jury's verdict, we vacate defendant's convictions for vehicular homicide (reckless) and vehicular assault (reckless). The careless driving violation, however, was based on injuries sustained by surviving victims. The original mittimus required that the death-related sentences, which totaled six years, be consecutive to the remaining felony and misdemeanor convictions, which totaled three years.Medical testing conducted after the accident failed to reveal alcohol in defendant's blood. In our view, given the broad language of the statute, similar reasoning applies to defendant's argument here.However, a trace amount of marijuana was found, along with trace amounts of “parent” cocaine and cocaethylene. Defendant contends that he was entitled to a judgment of acquittal on the vehicular homicide (DUI) and vehicular assault (DUI) charges. In assessing defendant's contention relative to the sufficiency of the evidence, we must first determine the applicable legal standard. However, defendant's tendered jury instruction stated that: An individual is not ‘under the influence’ or ‘impaired’ by the ingestion of any drug, combination of drugs, or combination of drugs and alcohol unless such influence or impairment is caused by the psychoactive properties of the substance or substances at the time of the operation of the motor vehicle. People, 856 P.2d 811 (Colo.1993), defendant had not used drugs for at least two days prior to the commission of a homicide. The court stated: We do not see any qualitative difference between a person who drinks or takes drugs knowing that he or she will be momentarily ‘mentally defective’ as an immediate result, and one who drinks or takes drugs knowing that he or she may be ‘mentally defective’ as an eventual, long-term result. In sum, if, as here, drug or alcohol use affects a person to the extent that he or she is incapable of mentally or physically exercising the judgment, physical control, and care required by the statute, then that person is intoxicated.Based upon data obtained from tests conducted after the accident on defendant's urine, the toxicologist opined that defendant's prior consumption of cocaine was either “a binge or [indicative of] a heavy chronic user over a long period of time.” The expert also stated that defendant's actions just prior to the accident “were influenced by the effects of the cocaine.”This evidence must be viewed in the light most favorable to the prosecution and the jury's verdict. And, defendant argues that, because the record contains no evidence that the supporting affidavit physically accompanied the warrant during its execution, his convictions must be vacated. To preserve this claim for appeal, defendant must have raised the issue initially as grounds for his motion in the trial court. The trial court found the affidavit very specific in detailing the items to be seized. Defendant argues that under §§ 18-3-106(1)(a) & (b), C. S.1998, these instructions were properly requested as lesser-included offenses of vehicular homicide (DUI) and vehicular assault (DUI). Hence, the only issues for resolution by the jury in this context were whether defendant was intoxicated or impaired. However, instructions that are either irrelevant, misleading, or confusing to the jury must be avoided. And, witnesses testified that they had seen defendant in possession of and using drugs and drug paraphernalia the prior day. As to those contentions, the prosecution concedes, and we agree, with defendant's contention that the trial court erred in entering multiple convictions for alternate violations provided under one statute. However, the total term of defendant's sentence remained nine years. App.1995) (sentencing provision for adult felony offenders, § 16-11-301(1), C. S.1998, requires that imprisonment for felony convictions be served by confinement in facility as determined by DOC).