A Murder Disguised as a
Deep in the Colorado wilderness, on the second
day of hunting season in 1995, veteran police officer Doug Kyle
came across what appeared to be a terrible tragedy. It would
actually turn out to be much more complicated — and bone-chilling.
Lying on the ground bleeding was Bruce Dodson,
48, with an orange hunting vest at his side. His wife of three
months, Janice, was screaming for help. "I picked up the orange
vest and was just screaming at him: 'Why didn't you have your vest
on?' " Janice said.
"She's crying and carrying on," said Kyle. "I
said, 'Is this your husband?' And she said, 'Yes, that's Bruce.
Help — you've got to help him.' "
Bruce was beyond help. He seemed destined to be
yet another victim of a hunting accident, mistaken for game — a
mistake that would repeat itself more than 100 times that year.
But the day after, an autopsy revealed Bruce
hadn't taken just a single bullet, but three. Bill Booth, an
investigator for the district attorney's office, said he started
to believe this was homicide.
An Icy, Calculating Murderer
Janice Dodson says when she heard this, she
couldn't believe it. "There was no reason to kill someone like
Bruce," she said. "And then my next thought was that no one
deserves to die like that."
Bruce and Janice worked at the same hospital.
She was a nurse; he was a lab tech. Janice had been through a
rough divorce after 25 years of marriage. Bruce was a loner until
he met Janice.
Friends said they made a great couple. He was
frugal, helping her to put her affairs back in order after her
divorce. Lively and outgoing, she introduced him to new things.
Booth and his partner, Dave Martinez, began
analyzing every detail about the last few days of Bruce's life.
Reconstructing the incident, they concluded they were up against
an icy, calculating murderer.
Booth theorizes that Bruce was walking along a
fence line when he was first fired upon. Miraculously, the bullet
pierced his clothing, but only grazed his skin.
Booth says he thinks Bruce then took off his
vest to wave it around, and started yelling to tell people he was
not a deer. But then Bruce was shot in the chest, and as he was
falling, he was hit once more in the back, Booth says.
The third bullet struck a fence post before it
hit Bruce. Investigators traced the bullet's path to what they
believed was the assassin's nest, where they found a spent
cartridge from a .308-caliber bullet. Neither Bruce nor Janice
were hunting with such a weapon.
But investigators soon discovered that Janice
Dodson's ex-husband, J.C. Lee, was camped just three-quarters of a
mile away. Just the day before the murder, Lee had reported a
Janice said, "J.C. didn't care for anybody I
ever dated … even after we were divorced."
An Opportunity and a Motive
District Attorney Frank Daniels said it was all
"very suspicious." But there was one thing that didn't seem right:
Bruce and Janice had set up their campsite close to other hunters
who had been there first. "You don't want to camp near other
hunters," said Booth. "This is millions of acres up here and you
don't camp next to each other."
Booth and Martinez later discovered that Janice
had been to the mountain just a few weeks before on a separate
hunting trip without her husband. Suddenly — in their minds —
Janice changed from grieving widow to prime suspect.
"We believe at that point, at that time, that's
when she set the scene," said Booth. "She knew that this was going
to be the murder area, up ahead."
Then, when investigators they learned about
Janice's financial affairs, they had a motive.
"She'd taken out three insurance policies, she
made sure to get wills done," Daniels said. "Bruce owned two
homes. She had the property put into both their names during this
three months since they were married."
Only one month after Bruce's death, Janice was
gambling at the Players Club casino in Louisiana. She had closed
his bank accounts, sold his home and another property, his car,
and even his horse, Glory. She cashed in his IRAs.
Police said she was badgering the life
insurance companies to pay off his policies, even though they were
only good for accidental death — not homicide. And then she
In the Mud
For nearly three years after the crime, police
believed they knew when, where and how the murder had been
committed. And yet, they still couldn't connect their suspect with
the murder weapon — until they went back to a piece of evidence
they had had since day one.
Police had a pair of coveralls Janice had been
wearing on the day her husband was killed. The coveralls were
stained with mud — a type of mud that police say is only found
around the area where her ex-husband had been was camping, and
from where the gun was stolen.
Janice was arrested and brought to trial. The
jury deliberated for 3 ˝ days, then found her guilty of
first-degree murder. Lee denied any involvement in the shooting
whatsoever, and he was never charged with a crime.
Janice did not take the stand at her trial. She
gave her side of the story for the first time in an interview with
Primetime's Chris Cuomo.
"I still do [love Bruce Dodson]," Janice said.
"The only way I can live with this, is that I have the peace of
knowing I didn't do it, and the prayer in my heart that some day
the truth will win out."
Investigators say whoever killed Bruce Dodson
was able to kill a man while staring him in the eye. They say
Janice Dodson, with her denials and claims of love, is that kind
Janice Dodson is serving life in Colorado state
prison without the possibility of parole. Police never found the
weapon that was used to gun down Bruce Dodson. There are
suspicions it may have been purchased at a gun show or found in
the wood by a hunter.
If you have any information on the Model 700
Remington .308-caliber rifle with serial number D6844028, call
D.A. Investigator Bill Booth at (970) 244-1702 or D.A.
Murder and the pond
The murder of John Bruce Dodson
produced one of the most interesting cases in the entire history
of forensic geology. Here, the geologic evidence is unequivocal in
that it tied the suspect directly to the crime and eliminated the
suspect's alibi. Most importantly, the investigator of the crime
recognized the potential importance of the geologic evidence and
arranged for the examination of that evidence. The testimony of
the forensic geologist was critical to the prosecution of the
case. The case began on Oct. 15, 1995, when John Dodson was found
dead while on a hunting trip with his wife of three months,
Janice. The scene was a crisp autumn morning high in the
Uncompahgre Mountains of western Colorado.
At first glance, it appeared to
be a hunting accident. However, the autopsy revealed two bullet
wounds to the body and one bullet hole through John's orange vest.
Western Colorado District Attorney Frank Daniels points out in his
book on the case, Dead Center, that if there had been only one
bullet, there never would have been an investigation and the death
would have been ruled an accident.
The investigation showed that
the Dodsons were camped near other hunters, one of whom was a
Texas law enforcement officer. He responded to Janice's frantic
call that her husband had been shot. She was standing about 200
yards from the camp in a grassy field along a fence line. The
officer determined that John was dead and started the process of
getting help. Prior to calling for help, Janice had returned to
her camp and removed her hunting coveralls, which were covered
with mud from the knees down. She later told investigators that
she had stepped into a mud bog along the fence near camp.
Investigators found a .308-caliber shell case approximately 60
yards from the body. In addition, they found a .308-caliber bullet
in the ground on the other side of the fence, which created a
direct line from the location of the case to the body to the
Janice's ex-husband, J. C. Lee,
was also camped three-quarters of a mile from the Dodsons. Janice
knew the site was his favorite camp location. He naturally came
under suspicion. However, Lee was hunting far away from camp with
his boss at the time of the shooting. Most importantly, Lee
reported to investigators that while he was out hunting, someone
had stolen his .308 rifle and a box of .308 cartridges from his
tent. Winter comes early at 9,000 feet in the Umcompahgre, and
little more could be done at the scene. However, investigators
Bill Booth, Dave Martinez and Wayne Bryant returned during the
summers of 1996, 1997 and 1998 and searched for the rifle and
other evidence. They tried to search every place a weapon could
have been hidden. They combed the entire area, including ponds,
with metal detectors in hope of finding the rifle; it has never
been found. During the final search of the pond near Janice's
ex-husband's camp, Al Bieber of NecroSearch International (a
nonprofit consulting company for law enforcement agencies)
commented that the mud in and around a cattle pond near Lee's camp
was bentonite, a clay that someone brought to the pond to stop the
water from seeping out of the bottom. That evening, Booth and
Martinez were camped near the crime scene. They were discussing
the evidence in the case when investigator Booth said, "The mud."
He was referring to the dried mud that was found on Janice
Dodson's clothing. If Janice had obtained the rifle from Lee's
camp, she would most likely have stepped or fallen into the
bentonite clay that drained across the road from the cattle pond.
Remembering Janice's statement that she was returning to camp on
the morning of the crime and stepped into a mud bog near her camp,
Booth and Martinez decided they needed to obtain dried mud samples
from the bog near the Dodsons' camp, the area around a pond nearby
the camp, and the human-made pond and runoff near Lee's camp.
Booth and Martinez packaged the
dried mud from each location and sent the samples along with the
dried mud that had been recovered from Janice's overalls to the
laboratory section of the Colorado Bureau of Investigation in
Denver, where it was examined by Jacqueline Battles, a forensic
scientist and lab agent. Battles is a highly respected forensic
scientist with considerable geologic training, who, like many of
the others in the profession, got her early training with Walter
McCrone. She concluded and later testified to the fact that the
dried mud found on Janice Dodson's clothing was consistent with
the dried mud recovered from the pond near Lee's camp. The dried
mud that had been recovered from Janice's overalls was found not
to be consistent with the mud bog or the pond near her camp. This
was a breaking point in the case that allowed Booth and Martinez
to put Janice Dodson in her ex-husband's camp around the time his
rifle had been stolen. There are no other bentonite-lined ponds in
the area and no bentonite deposits.
Booth and Martinez went to Texas
and served an arrest warrant on Janice. She was extradited to
Colorado, tried in court and convicted in the murder of John Bruce
Dodson. The jury understood the results that followed Booth's
insightful "mud" exclamation. Janice is now serving a life
sentence without the possibility of parole in Colorado's state
prison for women. The mud samples collected from Janice's clothing
are still in the sheriff’s office evidence room where they have
been since 1995.
The Deer Hunt: A Story of
Intrigue, Murder, and Forensic Geology
The short story “The Deer Hunt” tells the true
tale of a woman who killed her newly wedded husband to gain his
$450000 estate because she was in financial troubles.
Janice Dodson, a woman from a middle class
family in Nacogdoches, TX, always wanted to live a lifestyle she
could not afford. She always dreamed of the big lights of Dallas
but did not find happiness there. Her salary as a nurse could not
pay the bill of her expenses.
Janice moved back to Nacogdoches and married
J.C. Lee. They were married for twenty-five years, had two kids
together, and were living in Delta, CO. Their marriage abruptly
ended when J.C. began to sleep with one of their daughter’s friend
from school, Pam. Janice swore revenge on J.C. the day she saw the
two about to have sex in a getaway cabin for embarrassing her that
Bruce and Janice were introduced by a mutual
friend that worked at the hospital with them. The two quickly hit
it off and began dating. Bruce was a shy guy and a bit of a loner,
so when Janice began having financial troubles again Bruce stayed
with her and helped pay for some of the credit card bills.
Eventually though, the constant spending was too much for Bruce
and he split up with Janice. It was not long before he became
lonely and crawled back to Janice.
They soon got married and went on honeymoon,
but they honeymoon was sour and Janice immediately began thinking
of a divorce. But because of her debt she could not afford to get
a divorce, so she made a plan to kill Bruce and collect his large
estate. Janice quickly had a lawyer create a will for Bruce that
gave her custody of everything before taking him out for a hunting
During the hunting trip Janice murdered Bruce
and tried to stage it as a hunting accident. She was free for
months, getting remarried and making a trip to the Players Club
casino in Louisiana just a month after Bruce’s death. A geologic
discovery was the final piece of evidence that was able to put her
The hunting area Janice had chosen was near the
San Juan Mountains and the Grand Mesa. The mountains are made of
from volcanic rock that is roughly 30-35 million years old. The
Grand Mesa, the largest mesa in the world, is 320 million years
old and consists of the Hermosa formation.
The Hermosa formation is a reddish brown
sedimentary rock that is layered and is more resistant to erosion
than the surrounding igneous and metamorphic rocks. The soil that
covers the area came from an ancient landslide many years ago.
A valley was created during the Pleistocene
Epoch by glaciers that cut through the igneous rocks like heavy
sandpaper because of the extreme weight of ice. This theory is
proven by striations and a ‘U’ shaped valley, which is typical of
glaciers. Glaciers dump a material called moraines, which is
eroded sediments pilled alongside a valley and is deposited at the
front of a glacier. Southwestern winds pick up some of those
sediments and deposit them in front of the Sangre de Cristo
Mountains near the lakes because it does not have the speed to
carry them further. This has created the largest sand dunes in
North America, the Star Dunes. The dunes have reached a height of
750 feet due to 12000 years of accumulation. Medano Creek is
important to the dune preservation because it flows on the
perimeter of the the dunes and carries sand downstream and blows
it to dunes.
Another geologic structure near the camp site
was arroyos, which is a series of subterranean channels and
vertical shafts known as pipes. They are created by aedian forces
and from the difference in porosity of the clay materials. All of
this geologic background was necessary to convict Janice Dodson.
Janice was known as distant by the nurses she
worked with at the Mental Health Services of Richardson, TX before
moving to Colorado, but no one expected to her to murder someone.
In desperate need of cash, Janice decided her best case scenario
would be to murder her new husband, Bruce.
A perk in her plan was being able to possibly
frame cheating ex-husband, J.C. She started off by picking
campsite near the mesa, while J.C. was near the lake. Janice’s
campsite was perfect because she would be up on the mesa “hunting
elk” when Bruce was looking for deer on lower ground. This gave
her the perfect kill shot.
While they were separated, Janice went over to
J.C.’s campsite to steal his AWR to try and frame him. During her
time by the lake, she got a type of mud that is only near J.C.’s
camping area on some overalls and did not clean them properly to
hide the evidence. That was her ultimate downfall because it
placed her at the campsite and as the one who stole J.C.’s gun.
With her growing debt and past history of
insurance fraud, Janice became the perfect suspect with a motive.
Officer Doug Kyle was the first to the scene of the crime and
noticed some things that made him begin suspecting Janice as the
killer. Earlier that day he had seen her right after the murder
before she changed her clothes, she began acting weird when he
returned quickly after calling 911, and told him that she had not
heard any shots that morning even though he did not ask her.
Other clues included her telling officials that
J.C. never cared for any of her boyfriends after their divorce and
investigator Bill Booth was concerned with the fact that three
shots were fired. But J.C. was quickly dismissed as a suspect
because he had been hunting with his boss, Frank, and his
girlfriend, giving him a credible alibi. He also had called the
day before the murder reporting his rifle stolen. Some actual
evidence that was used in the case was Janice shot a bullet into a
fence post, which allowed authorities to find her shooting
location; Janice picked a campsite close to other people, which is
uncommon; records showed Janice had been camping in the area just
weeks before the murder. Janice Dodson is now serving life in
prison without parole.
Colorado Court of Appeals, Div. I.
The PEOPLE of the State of Colorado,
Janice HALL, Defendant-Appellant.
April 11, 2002
Ken Salazar, Attorney General,
Catherine P. Adkisson, Assistant Attorney General, Denver,
Colorado, for Plaintiff-Appellee. Law Firm of Richard A.
Hostetler, Richard A. Hostetler, Denver, Colorado, for
Defendant, Janice Hall, appeals the judgment of
conviction entered on a jury verdict finding her guilty of first
degree murder after deliberation. Defendant's primary contention
on appeal is that the trial court erred in refusing to instruct
the jury that before she could be convicted, all jurors had to
agree unanimously which of the prosecution's alternative theories
supported the first degree murder count. Because we conclude the
trial court did not err, we affirm.
Defendant's husband (the victim) was shot and
killed while he and defendant were on a hunting trip. A witness,
who is a deputy sheriff from another state, was camped nearby and
heard several gunshots. About thirty minutes later, he saw
defendant walking back to her campsite, and the witness noticed
shortly afterwards that defendant had changed clothes.
Defendant and the witness then had a
conversation during which she denied hearing shots. She stated
that her husband had not returned on time and that she was going
to look for him. A few minutes later, the witness heard her
calling for help. He found her next to the victim's body, waving
the victim's orange hunting vest and throwing empty bullet shells
near the body.
Investigators later discovered a shoe print in
the mud near the suspected location of the shooter. The print
was consistent with defendant's boots. The investigation further
showed: (1) defendant's ex-husband had been hunting nearby; (2)
he owned the same type of rifle identified as the murder weapon;
(3) he had reported it stolen after the hunting trip; (4)
defendant had urged the victim to put money in her ex-husband's
bank account to benefit their children; (5) defendant was a
skilled hunter and had extensive experience with guns; (6) she
and the victim had been married for only three months at the time
of his death; (7) she had encouraged him to name her as the
primary beneficiary of his life insurance policies; and (8) upon
his death, she was to receive over $450,000 in death benefits and
assets from his estate.
Approximately three years after the victim's
death, defendant was charged with first degree murder after
deliberation. At the jury trial, the prosecution maintained that
defendant either had fired the shot that killed the victim or had
aided and abetted her ex-husband in killing him.
At the close of the evidence, the trial court
submitted those alternative theories to the jury and instructed
the jury, as relevant here, it had to find each element of first
degree murder was proven beyond a reasonable doubt and the verdict
had to be unanimous. However, the court refused defendant's
request that the jury also be instructed that before she could be
convicted, all jurors had to agree unanimously which of the
prosecution's alternative theories supported the first degree
I. Unanimous Verdict
For several reasons, defendant contends the
trial court erred in refusing to instruct the jury it was required
to reach a unanimous decision whether she was being convicted of
first degree murder as the principal or as a complicitor. We
reject each of her arguments.
A. Complicity Theory
Defendant first asserts that there is a
distinction “between [using] alternative methods or means of
committing [first degree murder] and [using] alternative theories
of defendant's status as a party to the offense.” According to
defendant, a unanimity instruction was required because complicity
is “a definitional distinction pertaining to a party's status in
committing the offense,” rather than an alternative method of
committing an offense. We are not persuaded.
Prior Colorado decisions have described
complicity as another means or theory of law of committing a
single offense. Bogdanov v. People, 941 P.2d 247 (Colo.1997);
People v. Fisher, 9 P.3d 1189 (Colo.App.2000); People v.
Thurman, 948 P.2d 69 (Colo.App.1997); see also James v. People,
727 P.2d 850 (Colo.1986).
As relevant here, “[a] person commits the crime
of murder in the first degree if ․ [a]fter deliberation and with
the intent to cause the death of a person other than himself [or
herself], he [or she] causes the death of that person or of
another person.” Section 18-3-102(1)(a), C.R.S.2001.
To commit first degree murder after
deliberation as a principal, one actually has to commit the act
resulting in the death of another person. However, one also may
be held accountable as a complicitor under § 18-1-601, C.R.S.2001,
which provides that “[a] person is guilty of an offense if it is
committed by the behavior of another person for which he [or she]
is legally accountable as provided in sections 18-1-602 to
Under § 18-1-603, C.R.S.2001, “[a] person is
legally accountable as principal for the behavior of another
constituting a criminal offense if, with the intent to promote or
facilitate the commission of the offense, he or she aids, abets,
advises, or encourages the other person in planning or committing
In view of these statutes and decisions
defining complicity, we conclude the trial court did not err in
permitting the prosecution to present evidence that defendant
committed first degree murder after deliberation either as a
complicitor or as a principal. Those alternative legal theories
were two means of committing a single offense, and were not an
impermissible “definitional distinction pertaining to a party's
status,” as defendant asserts. See Bogdanov v. People, supra;
James v. People, supra; People v. Thurman, supra.
B. Federal Right to Due Process
Defendant next contends her right to due
process under the United States Constitution was denied because
the trial court did not instruct the jury it had to determine
unanimously whether she had committed the murder as the principal
or as a complicitor. We disagree.
The United States Supreme Court is the final
interpreter of the United States Constitution. See Lujan v.
Colorado State Board of Education, 649 P.2d 1005 (Colo.1982);
People v. Geisendorfer, 991 P.2d 308 (Colo.App.1999).
Under the Due Process Clause of the United
States Constitution, a defendant does not have the right to a
unanimous jury verdict in state criminal prosecutions. Johnson v.
Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972).
The Supreme Court has stated that even if it is assumed such a
right exists, due process does not require unanimity on the
various means or theories of committing the single offense
charged. Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115
L.Ed.2d 555 (1991).
In Schad, the defendant was charged in Arizona
with one count of first degree murder. The prosecution advanced
two theories of how the defendant had committed the offense:
premeditated murder and felony murder. Arizona law considered
those theories to be equivalent means of committing first degree
murder. The jury was instructed on both theories as well as on
the requirement that it reach a unanimous verdict.
There, as here, the defendant contended due
process was denied because the jury verdict may not have been
unanimous as to the theory underlying the defendant's guilt of
first degree murder. However, a plurality of the Supreme Court
rejected the argument, concluding the defendant was not denied his
right to due process when the jury was instructed it could reach a
unanimous verdict on first degree murder without being unanimous
on the theory underlying the charged offense. The Court stated:
“We see no reason ․ why the rule that the jury need not agree as
to mere means of satisfying the actus reus element of an offense
should not apply equally to alternative means of satisfying the
element of mens rea.” Schad v. Arizona, supra, 501 U.S. at 632,
111 S.Ct. at 2497, 115 L.Ed.2d at 565.
Accordingly, we reject defendant's contention
that her right to due process under the United States Constitution
was denied because the trial court did not instruct the jury it
had to determine unanimously whether she had committed the murder
as the principal or as a complicitor. The jury was only required
to reach a unanimous verdict on the charge of first degree murder,
not as to the alternative theories offered in support of the
charge. See Schad v. Arizona, supra.
C. Colorado Right to Due Process
Defendant next contends the failure to require
unanimity regarding her culpability as a principal or as a
complicitor deprived her of her right to due process under the
Colorado Constitution, which requires proof beyond a reasonable
doubt of every element of a crime. Again, we disagree.
Colo. Const. art. II, § 25 states: “No person
shall be deprived of life, liberty or property, without due
process of law.”
Defendant urges us to adopt the dissenting view
in Schad v. Arizona, supra, and construe the due process clause of
the Colorado Constitution to require unanimity on every act
underlying an element of a crime. The dissent in Schad would
have required unanimity on either premeditated murder or felony
murder and not just on the underlying offense of first degree
murder. It relied on the rule that due process requires proof
beyond a reasonable doubt of every fact necessary to constitute
the offense charged. The dissent reasoned that the alternative
theories required different courses of conduct, thus demanding
proof of different facts in support of each theory. Schad v.
Arizona, supra, 501 U.S. at 653, 111 S.Ct. at 2508, 115 L.Ed.2d at
579 (White, J., dissenting) (“[W]hile these two paths both lead to
a conviction for first-degree murder, they do so by divergent
routes possessing no elements in common except the fact of a
On a few occasions, the Colorado Supreme Court
has extended rights protected under the state constitution beyond
those protected by the federal constitution. See People ex rel.
Juhan v. District Court, 165 Colo. 253, 439 P.2d 741 (1968)
(recognizing more extensive due process right regarding burden of
proof under Colorado Constitution than under federal
constitution); People in Interest of A.C., 991 P.2d 304, 307
(Colo.App.1999) (“[E]xtending rights protected under our state
constitution beyond those protected by the federal constitution
has been largely within the domain of the supreme court.”), aff'd,
16 P.3d 240 (Colo.2001). However, we perceive no basis for doing
In Thomas v. People, 803 P.2d 144 (Colo.1990),
the court considered whether the defendant's right to due process
was violated by the trial court's refusal to require the
prosecution to designate the acts that formed the basis of the
charged offense. There, the defendant was charged with and
convicted of two counts of sexual assault on a child. Each count
related to a different victim, and the two victims testified to
multiple sexual contacts by the defendant over a period of several
years. The trial court denied the defendant's request that the
prosecution be required to elect the acts on which it was relying
as the basis for the charged offense. The trial court also
refused the defendant's request to instruct the jury it had to
agree unanimously on one or all of the acts to which the victims
On appeal, the supreme court concluded that the
trial court had violated the defendant's due process rights in
failing to instruct the jury regarding the need for unanimity as
to one or all of the acts, but that the error was harmless beyond
a reasonable doubt because the jury verdicts reflected unanimity.
The court explained that the trial court had required the
prosecution to elect a particular type of act as to each victim,
that the evidence suggested the sexual contacts were repeated over
many years, that the defense theory was a general denial that any
of the acts had occurred, and that “[t]he evidence presented no
rational basis for some jurors to predicate guilt on one act while
other jurors based it on another.” Thomas v. People, supra, 803
P.2d at 155.
The Thomas court further stated:
[W]hen the evidence does not present a
reasonable likelihood that jurors may disagree on which acts the
defendant committed, the prosecution need not designate a
particular instance. If the prosecutor decides not to designate
a particular instance, the jurors should be instructed that in
order to convict the defendant they must either unanimously agree
that the defendant committed the same act or acts or that the
defendant committed all of the acts described by the victim and
included within the time period charged. Necessarily, the
determination whether there is a reasonable likelihood that jurors
may disagree on which acts the defendant committed requires the
exercise of discretion by the trial court. In some instances,
special verdicts may be advisable to provide assurance that a
verdict is supported by unanimous jury agreement.
Thomas v. People, supra, 803 P.2d at 153-54
Other decisions have held the jury must be
unanimous only as to the elements of the crime charged, even
though the evidence demonstrated that various acts by the
defendant could have established those elements under different
theories of culpability. See James v. People, supra; People v.
Lawrence, 55 P.3d 155 (Colo.App.2001); People v. Thurman, supra;
People v. Lewis, 710 P.2d 1110 (Colo.App.1985). Those cases
have held a jury may return a general verdict of guilty when the
trial court instructs on alternative theories or means of
committing the crime.
In James v. People, supra, the defendant was
charged with one count of first degree sexual assault. However,
the prosecution presented three different methods or theories by
which the defendant may have committed that offense. Further,
the jury was instructed it could convict the defendant “if he had
knowingly inflicted sexual penetration upon the victim by causing
her to submit to him in one of three ways: (1) application of
physical force or violence, (2) threat of imminent death, or (3)
threat of future retaliation.” James v. People, supra, 727 P.2d
The three theories each required distinct acts
that constituted the same crime, and the jury's verdict was
returned on a general verdict form that did not specify upon which
of the alternatives the verdict was reached.
On appeal, the defendant contended his due
process rights were violated because the court was unable to
determine upon which of the three theories the jurors based their
verdict. The defendant claimed the evidence “was insufficient to
justify a finding by the jury that every element of each
alternative method of committing the charged offense had been
proven beyond a reasonable doubt.” James v. People, supra, 727
P.2d at 852. Thus, the issue on appeal was “whether each
alternative [theory] must be supported by proof sufficient to
permit a jury to find the defendant guilty beyond a reasonable
doubt.” James v. People, supra, 727 P.2d at 854-55.
The supreme court concluded the jury could
return a general verdict of guilty on a single count alleged to
have occurred under alternative theories without depriving the
defendant of the right to a unanimous verdict. However, each
theory presented had to be supported by sufficient evidence. If
there were insufficient evidence of any alternative theory, the
general verdict had to be set aside. James v. People, supra.
In summary, the defendant's right to due
process is violated if: (1) the prosecution alleges multiple acts
that could constitute the charged offense; (2) only one theory of
culpability is presented; and (3) no modified unanimity
instruction is given. Nevertheless, the failure to give such a
unanimity instruction may be harmless beyond a reasonable doubt if
the reviewing court is convinced the jury verdicts reflect
unanimous agreement. See Thomas v. People, supra.
Further, where the jurors unanimously agree the
defendant committed the charged crime, unanimity is not required
as to the underlying acts, as long as the prosecution presents
alternative theories and each theory is supported by sufficient
evidence. See James v. People, supra.
In light of these decisions by the Colorado
Supreme Court, we reject defendant's contention that we should
adopt the reasoning of the dissent in Schad v. Arizona, supra.
People v. Thurman, supra, offers additional
guidance in resolving the issue before us. There, as here, the
defendant maintained that the trial court erred in allowing the
jury to return a general verdict of guilty when it was instructed
on the prosecution's alternate theories: that the defendant was
guilty either as a principal or as a complicitor. There, as
here, the trial court also did not require the prosecution to
elect which theory it was submitting to the jury, nor was the jury
given a modified unanimity instruction requiring agreement on one
theory or the other. People v. Thurman, supra.
The panel in Thurman rejected the defendant's
challenge to the general verdict of guilty, concluding that “when
a defendant is charged with alternative means of committing the
same offense within a single count, not with two distinct offenses
in separate counts, and evidence is presented regarding a single
transaction, the prosecution is not required to select a single
alternative.” People v. Thurman, supra, 948 P.2d at 71.
Although Thurman did not address whether the
failure to require unanimity on the particular theory of
defendant's participation in the offense was a violation of due
process, the panel applied essentially the same rule established
in James. Thus, the holding of Thurman supports our conclusion
that a modified unanimity instruction was not required under the
Because the jury was instructed it could
convict defendant as a principal or as a complicitor and was given
a general verdict form, individual jurors could have convicted
defendant based on differing theories. However, the jury was
also instructed that every element of the offense had to be proved
beyond a reasonable doubt before a verdict of guilty could be
returned and that it was required to reach a unanimous verdict.
Defendant has not challenged the sufficiency of the evidence
supporting either theory, and as long as the prosecution presented
sufficient evidence to support both theories, we must uphold the
conviction as being supported by proof beyond a reasonable doubt.
See James v. People, supra.
Our conclusion that a modified unanimity
instruction was not required here is further supported by the
decisions of courts in other jurisdictions that have addressed
similar issues. See People v. Sutherland, 17 Cal.App.4th 602,
617, 21 Cal.Rptr.2d 752, 761 (1993)(“[N]o unanimity instruction is
required to prevent a less than unanimous verdict where the
evidence independently proves acts which support the defendant's
liability either as a principal or as an aider and abettor.”);
People v. Smielewski, 235 Mich.App. 196, 596 N.W.2d 636
(1999)(jury may return a general verdict of guilty when instructed
on both theories of principal liability and aiding and abetting);
Evans v. State, 113 Nev. 885, 944 P.2d 253 (1997)(no error
occurred when jury was presented with theories of premeditated
murder, felony murder, and aiding and abetting without requiring
unanimity on one particular theory); Holland v. State, 91 Wis.2d
134, 280 N.W.2d 288, 292-93 (1979)(“Unanimity is required only
with respect to the ultimate issue of the defendant's guilt or
innocence of the crime charged, and unanimity is not required with
respect to the alternative means or ways in which the crime can be
In each of the cited cases, the court concluded
the jury may return a general verdict of guilty when instructed on
theories of both principal and complicitor culpability.
We therefore conclude that while due process
requires a unanimous verdict under certain circumstances, those
circumstances are not present here. The unanimity and reasonable
doubt instructions given here were proper, and a modified
unanimity instruction was not required. Accordingly, defendant's
constitutional right to due process was not violated.
D. Colorado Right to a Jury Trial
Defendant next contends the failure to require
unanimity regarding her culpability as the principal or as a
complicitor violated her right to a jury trial under Colo. Const.
art. II, § 23. She urges us to construe that section to
include the right to a unanimous verdict. We are not persuaded.
Colo. Const. art. II, § 23 provides in
relevant part: “The right of trial by jury shall remain inviolate
in criminal cases․”
There is a statutory right to a unanimous
verdict in Colorado. See §§ 16-10-108, 18-1-406(1), C.R.S.2001
(requiring unanimous jury verdicts); see also Crim. P. 23(a)(8).
However, the Colorado Constitution does not explicitly guarantee
the right to a unanimous jury verdict. Although due process
requires a unanimous verdict under certain circumstances, as
discussed above, no Colorado cases have explicitly held that the
Colorado Constitution includes such a right.
Defendant nonetheless argues that because the
Colorado Constitution was based largely on the Illinois
Constitution, we should adopt Illinois decisions construing its
constitution to include the right to a unanimous jury verdict.
We are not persuaded.
The 1870 Illinois Constitution was in effect at
the time our constitution was ratified. The language in the 1870
Illinois Constitution, which is currently contained in Ill. Const.
art. I, § 13, provides that as to criminal defendants, “the
right of trial by jury as heretofore enjoyed shall remain
inviolate.” (emphasis added).
The Illinois Supreme Court has held “[t]he
right protected by [each of the Illinois Constitutions of 1818,
1848, and 1870] was the right of trial by jury as it existed at
common law,” and at common law, the right to a jury trial included
the right to a unanimous verdict. George v. People, 167 Ill. 447,
455-57, 47 N.E. 741, 743-44 (1897); see also People v. Strain,
194 Ill.2d 467, 252 Ill.Dec. 65, 742 N.E.2d 315 (2000)(Illinois
Constitution includes the right to a unanimous jury verdict).
Unlike the Illinois Constitution, Colo. Const.
art. II, § 23, the right to jury trial provision, is not qualified
by the “as heretofore enjoyed” language. We acknowledge the
Illinois Constitution of 1818 stated “that the right of trial by
jury shall remain inviolate,” which is identical to language
contained in the Colorado Constitution. We further acknowledge
the Illinois Supreme Court, in George v. People, supra, 167 Ill.
at 455, 47 N.E. at 743, did not find “any substantial difference
between the provisions” in the Illinois constitutions of 1818,
which did not contain the “as heretofore enjoyed” language, and
that of 1870, which did contain such language.
Nevertheless, we view it as significant that
the framers of our state constitution omitted the “as heretofore
enjoyed” language contained in the Illinois Constitution. See
Ace Flying Service, Inc. v. Colorado Department of Agriculture,
136 Colo. 19, 314 P.2d 278 (1957)(Moore, C.J., specially
concurring)(provisions in the Colorado Constitution that deviate
from the Illinois Constitution must be regarded as indicating an
intention to depart from the interpretations of the Illinois
If that language had been included, it would
have required that we look to and incorporate within our
constitution the common law right to a unanimous verdict.
However, in view of the difference in the language of the Colorado
and Illinois constitutions, we are not persuaded by defendant's
argument that we should apply Illinois law and construe the
Colorado Constitution to include a right that is not included in
the text and that the Colorado Supreme Court has not yet
We therefore conclude defendant was not
deprived of her rights under Colo. Const. art. II, § 23.
In so holding, we observe that in some of the
above-cited cases in which the court has held the jury may return
a general verdict of guilty when instructed on theories of both
principal and complicitor culpability, the state constitution has
provided the defendant in a criminal case the right to a unanimous
jury verdict. See People v. Sutherland, supra.
II. Mental State Evidence
We also reject defendant's contention that the
trial court abused its discretion in allowing testimony that she
had suffered from multiple personality disorder, but was not
suffering from it at the time of the murder.
A trial court's admission of evidence will not
be overturned unless it abused its discretion. People v. Mossmann,
17 P.3d 165 (Colo.App.2000). Under this standard, we will not
overturn the trial court's evidentiary ruling unless it was
manifestly arbitrary, unreasonable, or unfair. People v. Melillo,
25 P.3d 769 (Colo.2001).
CRE 401 defines relevant evidence as “evidence
having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.” CRE 402
requires that evidence be relevant before the trial court may
admit it. People v. Mossmann, supra.
As pertinent here, under CRE 403, “[a]lthough
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.”
CRE 404(a) provides in relevant part:
Evidence of a person's character or a trait of
his character is not admissible for the purpose of proving that he
acted in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his
character offered by an accused, or by the prosecution to rebut
CRE 404(b) provides in relevant part:
“Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that he acted in
After the homicide was committed in this case,
the police conducted an office interview with defendant. She
reported that during a flashback, she had seen the victim being
shot four times. The officer then asked defendant whether she
had ever suffered from multiple personality disorder. She said
she had, but she claimed to have been cured by the time of the
At trial, defendant contended such evidence was
irrelevant because she had not raised the issue of diminished
mental capacity and also was “improper bad character evidence.”
However, the prosecution's theory was that defendant gave a number
of false and inconsistent statements to law enforcement officials
after the homicide and that her purpose in mentioning her alleged
multiple personality disorder was to explain why her statements
had been inconsistent. The trial court concluded the testimony
was relevant and admitted it.
We disagree that because defendant failed to
raise the issue of diminished mental capacity, this evidence was
irrelevant. Defendant's statement to the officer regarding her
multiple personality disorder had probative value, given the
prosecution's theory that defendant had covered up her involvement
in the crime, and her own description of her mental state at the
time of the offense made it more probable that she had
intentionally caused the death of the victim. The statement was
thus relevant to show defendant had committed first degree murder
as a principal, which requires specific intent and deliberation.
Nor do we agree with defendant that the danger
of unfair prejudice substantially outweighed the probative value
of the evidence. This particular evidence constituted a very
brief part of a fifteen-day trial, and only the officer who
elicited the statement from defendant concerning her multiple
personality disorder testified about the issue. Thus, while the
relevance of the evidence may not have been great, we perceive no
abuse of discretion by the trial court in allowing the officer's
Finally, we observe that CRE 404(b) only
applies to “[e]vidence of crimes, wrongs, or acts.” The evidence
of multiple personality disorder related to defendant's mental
state at the time of the murder, not to any of her actions.
Thus, we conclude CRE 404(b) does not apply to this evidence.
Opinion by Judge ROTHENBERG.
Judge METZGER and Judge KAPELKE concur.