People v. Marko

434 P.3d 618

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Robert Hull MARKO, Defendant–Appellant.

Court of Appeals No. 11CA0623

Colorado Court of Appeals, Division I.

Announced October 8, 2015

Cynthia H. Coffman, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE BERGER

Table of Contents

I. Background...631; ¶ 4

II. Challenge for Cause...632; ¶ 15

A. Facts...632; ¶ 15

B. Law and Application...632; ¶ 20

III. Motion for Mistrial...632; ¶ 23

A. Facts...632; ¶ 23

B. Law and Application...633; ¶ 28

IV. Motions to Suppress...635; ¶ 41

A. Custody Determination...636; ¶ 53

1. Law...636; ¶ 54

2. Application...636; ¶ 59

a. Facts...636; ¶ 59

b. Analysis...638; ¶ 60

c. Other Considerations—Military Command Structure...639; ¶ 71

B. Invocation of Right to Silence...641; ¶ 86

C. Invocation of Right to Counsel...643; ¶ 98

D. Voluntariness...645; ¶ 119

1. Law...645; ¶ 120

2. Application...646; ¶ 124

a. October 11 Statements...646; ¶ 124

b. October 12 Statements...647; ¶ 127

c. October 13 Statements...647; ¶ 128

d. Analysis...647; ¶ 129

E. Search of Marko's Barracks Room...648; ¶ 135

1. Facts...648; ¶ 135

2. Law and Application...649; ¶ 143

V. Psychiatrist's Testimony...651; ¶ 157

A. Facts...651; ¶ 157

B. Law and Application...651; ¶ 163

VI. Constitutional Challenges to NGRI Statutes...654; ¶ 186

VII. Prosecutorial Misconduct...657; ¶ 203

A. Law...657; ¶ 204

B. Beyond a Reasonable Doubt...657; ¶ 208

C. After Deliberation...658; ¶ 212

D. Wishes of the Community and Justice for the Victim...659; ¶ 219

E. Burden Shifting...660; ¶ 224

F. Cumulative Effect...661; ¶ 229

VIII. Sufficiency of the Evidence...661; ¶ 230

IX. Merger...661; ¶ 237

X. Multiplicity...662; ¶ 243

XI. Conclusion...663; 113

¶ 1 Defendant, Robert Hull Marko, appeals the judgment of conviction entered on jury verdicts finding him guilty of first degree murder, two counts of sexual assault, and two counts of attempted sexual assault.

¶ 2 Marko makes a number of arguments, two of which raise issues of first impression. The arguments raising issues of first impression are:

• The court erred in denying Marko's motions to suppress statements he made to the police and evidence seized during a search of his army barracks.

• His convictions must be reversed because the psychiatrist who conducted his sanity examination improperly opined on his substantive guilt and credibility.

Marko also argues:

• The trial court erred in denying his challenge for cause to a prospective juror.

• The court erred in denying his motion for a mistrial after another prospective juror made certain statements during voir dire.

• The court erred in denying his constitutional challenges to the statutory scheme governing the insanity defense.

• The prosecutor committed prosecutorial misconduct.

• The evidence was insufficient to support his sexual assault convictions.

• His attempted sexual assault convictions must merge into his sexual assault convictions.

• His sexual assault convictions are multiplicitous and violate the prohibition against double jeopardy.

¶ 3 We agree with Marko that his attempted sexual assault convictions merge into his sexual assault convictions and that his sexual assault convictions are multiplicitous. We thus vacate his attempted sexual assault and one of his sexual assault convictions. In all other respects, we affirm.

I. Background¹

¶ 4 On October 10, 2008, the victim's mother reported her nineteen-year-old daughter missing after she failed to return home that evening. The police determined that the victim had received a message on October 9 through an online social network account from a user named "Rex290," with whom the victim had been in contact for several months, suggesting that they "get together" the following day. The police established that Rex290 was Marko, a soldier stationed at a nearby military base.

¶ 5 Officers from the El Paso County Sheriff's Office contacted the military police at the base. In the early morning of October 11, military police officers (MPs) visited Marko to conduct a "missing persons and welfare check" on the victim. The victim was not in Marko's barracks room, and he denied knowing her.

¶ 6 After the sheriff's officers received information that a friend of the victim had seen her with Marko in the past, they went to the base to interview Marko. Initially, Marko again denied knowing the victim, but after repeatedly changing his story, he admitted that he had seen her on October 10.

¶ 7 Sheriff's officers conducted further interviews with Marko on October 11, 12, and 13. During the October 13 interview, Marko admitted that he had picked up the victim the morning of October 10 and driven into the mountains, where they had argued. He said that he had knocked the victim unconscious, and (either while she was unconscious or after she had regained consciousness) he had had vaginal and anal sex with her. He said that he then blindfolded and gagged her and cut her throat with a knife.

¶ 8 Marko went with the sheriff's officers to the mountains and they located the victim's body. Marko told the officers where to find the cloths he had used as a blindfold and a gag, which were found, covered in blood, in the spot he indicated. A search of Marko's barracks room revealed a knife with the victim's DNA on its blade and a shirt with the victim's blood on it.

¶ 9 Marko was charged with various offenses, including first degree murder (after deliberation), first degree felony murder, and sexual assault. He pleaded not guilty and not guilty by reason of insanity (NGRI).

¶ 10 At Marko's jury trial, the psychiatrist who had conducted Marko's sanity examination testified regarding Marko's belief (which Marko had described to the police) that he was part of an ancient alien race of ruthless killers—the "black raptors." The psychiatrist testified, however, that Marko had maintained that his black raptor beliefs had nothing to do with the victim's death.

¶ 11 The psychiatrist opined that Marko suffered from "a mixed personality disorder involving antisocial and schizotypal traits," attention deficit hyperactivity disorder, and Tourette's disorder, but that Marko was legally sane at the time of the incident.

¶ 12 Marko presented testimony from another psychiatrist who had evaluated him in connection with the case. That psychiatrist testified that he believed that at the time of the incident, Marko was in a dissociative state in which he could not control his actions. The psychiatrist opined that Marko was legally insane when he committed the offenses.

¶ 13 The jury rejected Marko's insanity defense and convicted him of first degree murder (after deliberation); two counts of sexual assault (labeled "vaginal" and "anal" on the verdict form); and two counts of attempted sexual assault ("vaginal" and "anal") as crimes of violence. The jury acquitted Marko of first degree felony murder.

¶ 14 The trial court imposed a sentence of life in prison without the possibility of parole for first degree murder; consecutive sentences of ten years to life in prison for sexual assault (vaginal) and attempted sexual assault (vaginal); and concurrent sentences of six years in prison for sexual assault (anal) and attempted sexual assault (anal).

II. Challenge for Cause

A. Facts

¶ 15 The trial court informed the panel of prospective jurors of the charges and that Marko had pleaded NGRI. The court explained the legal definition of insanity and that the prosecution had the burden to establish beyond a reasonable doubt that Marko was sane when he allegedly committed the offenses.

¶ 16 The trial court and the attorneys questioned certain members of the panel about their responses to written questionnaires. The court asked Juror C whether, if legal insanity were established at trial, he would be able to return a verdict of NGRI. Juror C responded that he would have a difficult time doing so, and that "it would have be so overwhelmingly [sic] that from a doctor's point of view, psychologist, whoever you would have up there for me to go with, okay, he was definitely insane."

¶ 17 Juror C continued to make such comments throughout voir dire, including agreeing when defense counsel asked him whether insanity "needs to be overwhelmingly proven, and [he felt] pretty strongly about that." However, he stated that he would follow the law and that he could return a verdict of NGRI if the evidence established that Marko was insane at the time of the offense.

¶ 18 Defense counsel challenged Juror C for cause on the basis that "he would have a hard time following the burden of proof" regarding insanity. The court denied the challenge, explaining that it believed Juror C when he said that he could return a verdict of NGRI if the evidence established that Marko was legally insane.

¶ 19 The defense used a peremptory challenge to excuse Juror C.

B. Law and Application

¶ 20 Marko argues that the court erred in denying the challenge for cause to Juror C because Juror C made unrehabilitated statements indicating an inability to follow the law on the insanity defense. We need not determine whether the trial court erred because, to the extent that there was any error, Marko has not established that he was prejudiced by it.

¶ 21 Juror C did not serve on the jury. Thus, even if the trial court abused its discretion by denying the challenge for cause, reversal would not be automatic. See People v. Maestas, 2014 COA 139M, ¶ 12, 343 P.3d 1038. Rather, under People v. Novotny, 2014 CO 18, 320 P.3d 1194, to obtain reversal, Marko must establish a reasonable probability that any error contributed to the verdict. Maestas, ¶ 12.² To do so, Marko would have to make some showing of prejudice, for example that "as a result of the trial court's error, a different biased or incompetent juror sat on the jury." Id. He has not done so here.

¶ 22 Accordingly, the trial court...