A Case of Homicide

As promised in a previous post, another amateur and amateurish comment on a legal case. This one in Greeley, Colorado.

The facts:
Angie Zapata, a transwoman age 18, died of blunt force trauma to the head by a person or persons unknown, in her flat, on July 16, 2008. Her body was found the next day.

On July 30, Allen Andrade was arrested in the Denver suburb of Thornton, where he lives. Police responding to a noise complaint said they found him in Zapata's 2003 PT Cruiser, which had been missing. He was arrested on existing warrants. Andrade has a lengthy record that includes attempt to commit first-degree criminal trespass, attempt to commit theft from a person, possession of a contraband, attempted escape and attempt to commit theft by receiving. He served time for each of the convictions.

Abndrade was also found to have used Angie's credit card.

From Denver News :

Andrade told investigators that he met Zapata through MocoSpace, a social networking Web site, and that they agreed to get together after exchanging contact over several days, according to an arrest affidavit released by Greeley police. The two met July 15 and spent the day together.

Andrade told investigators that Zapata performed oral sex on him but wouldn't let him touch her, according to the affidavit.

He said he also spent the night at Zapata's apartment, but in separate beds. The next day, Zapata left Andrade alone in her apartment, and Andrade noticed several photographs that led him to question Zapata's gender.

Andrade confronted Zapata when she got back. Zapata answered: "I am all woman."

He grabbed Zapata's crotch area, felt male genitalia and became angry, the affidavit states. He took a fire extinguisher off a shelf and struck Zapata twice in the head, telling investigators he thought he "killed it."
...
Andrade told investigators he covered Zapata with a blanket and started gathering evidence he thought might link him to the crime when he heard gurgling sounds and noticed Zapata was sitting up. That's when he picked up the fire extinguisher and hit her again, police said. He left the apartment and took her car, he said.

Note that we only have the alleged killer's statement in evidence of that. The actuality may have been quite different. From the Denver Post

Only when Andrade grabbed at Zapata's crotch did he discover the truth. But when she smiled at him and said, "I'm all woman," it drove an enraged Andrade to commit murder, attorney Annette Kundelius said.

"At best, this is a case about passion," Kundelius said. "When (Zapata) smiled at him, this was a highly provoking act, and it would cause someone to have an aggressive reaction."

She argued Thursday that the first-degree murder charge filed against Andrade for Zapata's murder be dropped to second-degree murder.

But Weld County District Judge Marcelo Kopcow ruled otherwise Thursday, citing evidence the 31-year-old Andrade killed Zapata with deliberation.

Andrade hit Zapata several times with a fire extinguisher after he confronted her about her transgender status, Kopcow said.

He said he also considered several statements Andrade allegedly made while in custody that showed his anger toward Zapata and gays in general, including Andrade referring to Zapata as "it."

When his girlfriend told him her cellphone was dying during a conversation with him, he said that was gay and "all gay things need to die," Tharp said.

Andrade also said that he was trying to put the murder behind him and there was "no use crying over spilled milk," Tharp said.

The charges Andrade faces are :

• first-degree murder after deliberation,
• felony motor vehicle theft,
• felony identity theft and
• bias-motivated crime

Let's see what the law actually states about each of these offences. So we need to refer to the Colorado Revised Statutes Section 18, the Criminal Code.

Let's start with Bias-Motivated Crime 18-9-121 and work up.

(2) A person commits a bias-motivated crime if, with the intent to intimidate or harass another person because of that person's actual or perceived race, color, religion, ancestry, national origin, physical or mental disability, or sexual orientation, he or she:
(a) Knowingly causes bodily injury to another person;
...
(5) For purposes of this section:
...
(b) "Sexual orientation" means a person's actual or perceived orientation toward heterosexuality, homosexuality, bisexuality, or transgender status.
...
(3) ...Commission of a bias-motivated crime as described in paragraph (a) of subsection (2) of this section is a class 5 felony;

I wouldn't convict on the facts. Apart from the accused's confession, there is no evidence at all that hatred was involved. From the accused statements, the victim was killed because they were perceived as homosexual, not for being a straight transgender. But there was no evidence that this killing was intended to intimidate or harass - unless you define murder as extreme harassment.

The essence of a "hate crime" is not a crime motivated by hate: it is a crime whose intent is to terrorise or whose effect can only reasonably be assumed to terrorise the segment that is hated. The wording of the Colorado legislation reflects the first but not the second. Of course the jury may disagree here, it is arguable either way. In any case, the Defence will argue that Angie wasn't killed merely because she appeared to be gay, but because she "duped" this poor innocent.

A Class 5 Felony is punishable by 1-3 years imprisonment with a parole period of 2 years.

Next, Identity Theft - 18-5-902.

(1) A person commits identity theft if he or she:

(a) Knowingly uses the personal identifying information, financial identifying information, or financial device of another without permission or lawful authority to obtain cash, credit, property, services, or any other thing of value or to make a financial payment;
...
(2) Identity theft is a class 4 felony.

This seems fairly straightforward and inconstestible on the evidence, though it doesn't preclude a more serious charge if there are other circumstances. More on that later.

A class 4 Felony is punishable by 2-6 years, with mandatory parole period of 3 years.

Aggravated Motor vehicle theft 18-4-409:

(2) A person commits aggravated motor vehicle theft in the first degree if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception and:
(a) Retains possession or control of the motor vehicle for more than twenty-four hours;
...
(3) Aggravated motor vehicle theft in the first degree is a:
(a) Class 4 felony if the value of the motor vehicle or motor vehicles involved is twenty thousand dollars or less;

The book value of a second-hand 2003 PT Cruiser is about $10,000. Again, relatively simple and incontestible, but again, the unlawful taking may be a more serious crime than theft, depending on the circumstances.

Again, punishable by 2-6 years.

An alternate charge is that of Robbery 18-4-301, and I'll discuss that now.

(1) A person who knowingly takes anything of value from the person or presence of another by the use of force, threats, or intimidation commits robbery.

(2) Robbery is a class 4 felony.

This is where it gets murky, and beyond my meagre expertise. Here's some commentary on the elaborating caselaw:

Felony murder based on robbery precludes conviction for robbery. The defendant's conviction of the greater offense of felony murder, predicated as it is upon his killing of the robbery victim, precludes his simultaneous conviction of the lesser included offense of robbery. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983).

Robbery conviction not precluded by conviction for murder of another after deliberation. Although a separate judgment of conviction for robbery may not simultaneously exist with a judgment of conviction for first degree murder predicated upon the killing of the robbery victim, there is no such impediment to the entry of both a judgment of conviction for first degree murder based upon the killing of another after deliberation and a separate judgment of conviction for the robbery of the same victim. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983).

"Robbery" in felony murder provision used in generic sense. The term "robbery", as used in the felony murder statute, is to be construed as meaning this type of felony in its generic sense, including all types of robbery as defined in the statutes. People v. Raymer, 626 P.2d 705 (Colo. App. 1980), aff'd, 662 P.2d 1066 (Colo. 1983).

Any resulting death from robbery supports felony murder conviction. Any death that results in the course of any type of robbery may serve as a basis for a felony murder conviction, and all such types of robbery are necessarily merged in a felony murder charge. People v. Raymer, 626 P.2d 705 (Colo. App. 1980), aff'd, 662 P.2d 1066 (Colo. 1983).

The gravamen of robbery is the application of physical force or intimidation against the victim at any time during the course of a transaction culminating in the taking of property from the victim's person or presence. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983); People v. Villalobos, 159 P.3d 624 (Colo. App. 2006).

Property is taken from the "presence of another" when it is so within the victim's reach, inspection or observation that he or she would be able to retain control over the property but for the force, threats, or intimidation directed by the perpetrator against the victim. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983); People v. Benton, 829 P.2d 451 (Colo. App. 1991); People v. Fox, 928 P.2d 820 (Colo. App. 1996); People v. Villalobos, 159 P.3d 624 (Colo. App. 2006).

The question is... was the assault resulting in death "in the course of" the unlawful taking? That is a matter for a Jury to decide. Certainly bashing someone's head in, then coming back to finish them off would be force, and without this force having been used, the victim would have been able to retain her property. The Defence would then argue that the killing and the unlawful taking are separate acts, not the same "transaction".

Note that we only have the accused's statement to guide us as to what actually happened. He has a record of similar thefts, and it's possible that Angie came home at an inopportune moment, interrupting the theft. Had she not been transgendered, that would have been the only reasonable interpretation of the evidence.

In order to argue that the unlawful taking was not Robbery though, the Defence would have to argue that the unlawful taking was almost a victimless crime, a mere removal of property belonging to a deceased person's estate.

Hmmmm.... I don't think that argument would go down well. But the phase "in the course of" is key.

It all comes down to whether the Jury believes that the accused took any of Angie's possessions in the course of "removing the evidence", or afterwards. If the former, it is definitely one "transaction". If the latter, arguably two. And that will be determined by the accused's exact statement to the police.

Now let's look at the killing itself - manslaughter, 2nd degree murder, felony murder, or murder with deliberation.

First, manslaughter 18-3-104 :

(1) A person commits the crime of manslaughter if:
(a) Such person recklessly causes the death of another person; or
(b) Such person intentionally causes or aids another person to commit suicide.
(2) Manslaughter is a class 4 felony.

Beating someone's head in is hardly "reckless'. Coming back later to "finish them off" when it's apparent they're not quite dead yet certainly isn't. Not even the Defence tried to argue this at the pre-trial hearing. But of course, we must remember, this is all on the unsupported word of the accused.

Second, Murder in the second degree, 18-3-103, and this is where it gets tricky yet again.

(1) A person commits the crime of murder in the second degree if the person knowingly causes the death of a person.
...
(3) (a) Except as otherwise provided in paragraph (b) of this subsection (3), murder in the second degree is a class 2 felony.

(b) Notwithstanding the provisions of paragraph (a) of this subsection (3), murder in the second degree is a class 3 felony where the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person; but, if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the killing is a class 2 felony.

Some explanatory notes:

Elements of murder in second degree concerning defendant's state of mind are: (1) That the death was more than merely a probable result of the defendant's actions; and (2) that the defendant was aware of the circumstances which made death practically certain. The first is an objective standard; the second, a subjective standard. People v. Mingo, 196 Colo. 315, 584 P.2d 632 (1978); People v. District Court, 198 Colo. 70, 595 P.2d 1045 (1979).
...
Subsection (3) sets forth the elements of provocation, which is a mitigating factor and not a separate crime or a lesser included offense of murder in the second degree. If proven, provocation is a statutory mitigating factor that will reduce a defendant's sentence for second degree murder, but it is not an element of a separate offense. Further, to secure a conviction of second degree murder, the prosecution must prove a lack of provocation beyond a reasonable doubt. People v. Garcia, 1 P.3d 214 (Colo. App. 1999), aff'd, 28 P.3d 340 (Colo. 2001).

The general assembly intended to eliminate the offense of heat of passion manslaughter and create a single crime of second degree murder with two different felony levels by making provocation, or acting in the heat of passion, a factor in mitigation of second degree murder. People v. Martinez, 32 P.3d 582 (Colo. App. 2001).

And here's a quote from an actual lawyer on the subject:

Colorado judges have decided that, in some cases, a provocation for which there is evidence is nonetheless not permissible and cannot be argued in court. For example ... in People v. Valdez (183 P.3d 720, Colo.App. 2008), the Colorado appeals court held that a provocation argument could be ruled out. Here's what happened:

The defendant drove to his wife's house, from whom he was separated, saw a car there of a friend of his whom he suspected was having sex with his wife. He broke into the basement, went out into the yard, picked up a metal pipe, re-entered the house, and grabbed a knife. He walked upstairs to the bedroom, hit the boyfriend in the face with the metal pipe, and stabbed him in the chest. Defendant then woke up his estranged wife and told her that her boyfriend was dead and that he was going to get rid of her, too. He said if he could not have her, nobody was going to have her. The boyfriend survived, and defendant was arrested.

Okay, wife having sex with friend of husband's - not a crime but nonetheless "provocation" within the meaning of the statute, satisfying all five elements (...the five elements of a provocation defense requires that the act resulting in death 1) be performed upon a sudden heat of passion, 2) caused by a serious and highly provoking act 3) of the intended victim, 4) affecting the defendant sufficiently to excite an irresistible passion 5) in a reasonable person....). The appeals court did not dispute this, but nonetheless held that the provocation defense was barred. The court said that where a person places himself in a position, by his own actions, to encounter the provoking act, then the provocation argument is barred. Thus, while the Cassels case seems to indicate that a provocation argument must be allowed no matter what, no matter how vile or prejudicial, that is not, in fact the law in Colorado.

The element of provocation that the accused alleges is twofold: first, that the alleged sexual act many hours before the killing was "deception"; and second, that it was only when he confirmed his suspicions by deliberately grabbing her crotch that he knew what had happened. It is at least arguable, and would be argued by the prosecution, that the accused by his own actions encountered the provoking act. Alternately, if the provoking act was the sexual encounter itself, then the overnight time interval was certainly enough for "the voice of reason and humanity to be heard."

This assumes that having a sexual encounter with a transsexual "in stealth" is by itself a provocation so very terrible that it would excite an irresistible passion in any reasonable person to commit homicide. And that I would argue against, but I am certainly not objective there. I would argue in fact that it is exactly the same as someone finding out the woman he had sex with is only "passing for white", or "didn't look Jewish".

Furthermore... how many "momentary lapses of reason" do you get? By the accused's own admission, he attempted to beat the victim to death. He then calmly went about "tidying up" and removing incriminating evidence. He then noticed the victim gurgling and feebly moving under the sheet he'd put over the body, so he hit her again to deliberately kill her. Though of course, we only have his word for this.

2nd degree murder after provocation is good for 6-16, with a parole period of 5 years. It would be 4-12, but it's increased because it's a Class 3 Felony involving violence.
2nd degree murder absent provocation results in 8-24, also with a parole period of 5 years.

Finally... and I'm sure you thought I'd never finish... let's look at Murder in the First Degree. 18-3-102. But even there, there are two possibilities - Felony Murder, and Murder after Deliberation.

(1) A person commits the crime of murder in the first degree if:
(a) After deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person; or

(b) Acting either alone or with one or more persons, he or she commits or attempts to commit arson, robbery, burglary, kidnapping, sexual assault ... and, in the course of or in furtherance of the crime that he or she is committing or attempting to commit, or of immediate flight therefrom, the death of a person, other than one of the participants, is caused by anyone;

Murder in the First Degree is a class 1 Felony, and thus punishable by Life Imprisonment, or the Death penalty.

Basically, if the jury determines the killing and the unlawful taking were one transaction, it's Felony Murder, and thus Murder in the First Degree, with or without "deliberation".

No verdict other than first degree murder possible where the evidence overwhelmingly establishes the guilt of the defendant in a brutal and heartless assault and robbery committed upon the person of the deceased, and the defendant had a fair trial, one that was conducted in all respects pursuant to law. Ceja v. People, 142 Colo. 447, 351 P.2d 271 (1960).

Where murder is committed in the perpetration or attempt to perpetrate one of the felonies specified in this section, there is only one degree of murder, namely, murder of the first degree. If the uncontradicted evidence is to the effect that murder was committed in one of the ways specified above, and in no other way, the question of second degree murder is not in the case, and the defendant should be found guilty of murder of the first degree or acquitted; there is no middle course. Jones v. People, 93 Colo. 282, 26 P.2d 103 (1933); Early v. People, 142 Colo. 462, 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L.Ed.2d 70 (1960

So why was the accused not charged with Robbery? Because as stated before,

Any death that results in the course of any type of robbery may serve as a basis for a felony murder conviction, and all such types of robbery are necessarily merged in a felony murder charge.

Furthermore, Felony Murder with Deliberation is properly charged as Murder with Deliberation.

Murder after deliberation and felony murder are not separate and independent offenses, but only ways in which criminal liability for first degree murder may be charged and prosecuted. People v. Lowe, 660 P.2d 1261 (Colo. 1983); People v. Brown, 731 P.2d 763 (Colo. App. 1986).

Unlawful killing followed by Robbery as part of the same "transaction" is treated the same way as if the events were concomittant.

Sequence of events is irrelevant as long as sufficient evidence is produced to show that a felony was committed by defendant and that a death occurred during the commission of that felony. People v. Braxton, 807 P.2d 1214 (Colo. App. 1990).

The Defence will argue that the second assault was "on impulse" even if not provoked. They may argue that the cause of Death was the first assault, not the "coup de grace", though I don't think that will fly, for even if the first wounds would have been mortal, the second ones caused an earlier mortality.

The Prosecution will attempt to prove beyond reasonable doubt that the second, deadly, assault could only be construed as being part of the "tidying up" process the accused was involved in. Making sure there were no witnesses to testify. And thus an unplanned, but deliberate act.

Time is not essential if there was a design and determination to kill formed in the mind of the defendant previous to or at the time the mortal wound was given. Van Houton v. People, 22 Colo. 53, 43 P. 137 (1895).

The element of deliberation requires that the decision to commit the act is made after the exercise of reflection and judgment concerning the act; however, the length of time required for deliberation need not be long. People v. District Court, 779 P.2d 385 (Colo. 1989).

Now there may be other evidence too. For example, an examination of computer forensic evidence could show that the accused already knew of the victim's status before he met her - which would not merely blow apart any "provocation" defence, but strongly indicate that he went in with the intention to commit theft, as he had done in the past. And when interrupted, killed the victim. From Rocky Mountain News :

"She was always happy," said Alicia Portillo, one of Angie's friends. "She loved music. She didn't care what people thought of her. She always just wanted to be who she was, and that was female, and to be loved."

Portillo said Zapata's courage helped her with her own identity as a lesbian.

"Angie gave me the power to not care what people thought of me," Portillo said.

There's evidence Angie didn't try to hide, you see.

The Defence will be hoping to gain a Class 3 Felony result for the killing - 2nd Degree Murder after provocation - but won't be able to argue that the theft convictions (which will probably be pled guilty to) are part of the same "transaction". So the sentences for the thefts may be served concurrently with each other, but consecutively with the murder penalty. Unless they get an exceedingly sympathetic Judge. In that case, he gets out in 6 years, with another 5 years on parole.

An unsympathetic Judge would give him 18 years, with only the two theft charges concurrent with each other, plus 5 years on parole. Given the heinous nature of the assault, this would not surprise me. Except the victim was transsexual, so maybe 6 isn't unlikely after all. The average tariff is 8 - but parole before then.

The Prosecution would go for Murder One, and Life without parole. Whether with deliberation or Felony murder is immaterial. Failing that, 2nd degree murder without provocation, and go for a maximum sentence. 24 years, plus another 3 for the thefts.

Of course... I Am Not A Lawyer. So bear that in mind too. And this is the Law, not Justice.