I was out for dinner.
Moving it now....
Moving it now....
Wrongly Accused
- Thread starter marketsurfer
- Start date
thanks ! i am psyched to hear everyone's views on this subject. i have really only heard one side--hunter thompson's and lisl's. agree if she is guilty, may she never get out, BUT if she is not--someone needs to PAY !
surfer
Quote from marketsurfer:
thanks ! i am psyched to hear everyone's views on this subject. i have really only heard one side--hunter thompson's and lisl's. agree if she is guilty, may she never get out, BUT if she is not--someone needs to PAY !
surfer
ohhh i am psycho!!! really i am
ps are you her lawyer?
are you getting paid for this/
you work for ACLU?
shouldnt you be honing your dull trading to a razors edge? :-/
Quote from LongShot:
ohhh i am psycho!!! really i am
ps are you her lawyer?
are you getting paid for this/
you work for ACLU?
shouldnt you be honing your dull trading to a razors edge? :-/
no. longshot. i am not psycho--just open minded enough to realize that perhaps my initial impressions of the case were faulty. then again, maybe they are sound.
surfer
I have to say that the website you link to has about 0 credibility. It is way too biased.
Here's a summary:
Lisl is a regular girl who was unlucky enough to have an abusive boyfriend. She broke up with him, even though she was afraid to do so. Problem was, she didn't have all of her stuff from the apartment. Being afraid and uncomfortable to go back, she told one of her friends about it. Her friend's boyfriend volunteered to help. He summoned two of his friends, who happened to be skinhead murderers. These skinheads told Lisl they would drive her to her ex-apartment. She didn't want to go with them, but how could she say no? So they go to the apartment and the guys start stealing things. She doesn't want them to steal things, but how could she tell them not to? So finally they leave and decide to race down the mountain. The police chase them for 30 minutes, but how could Lisl tell these guys to stop? She is a regular girl -- too afraid to tell them to stop. So the police finally catch up and arrest them, but in the meantime the cop gets shot and killed. She is clearly a victim of bad luck and circumstance.
----
Way too convenient. It just doesn't hold water to me. Did she kill the cop? Probably not. Did she deserve the sentence? Probably not. Is she completely innocent in all this? Absolutely not.
Here's a summary:
Lisl is a regular girl who was unlucky enough to have an abusive boyfriend. She broke up with him, even though she was afraid to do so. Problem was, she didn't have all of her stuff from the apartment. Being afraid and uncomfortable to go back, she told one of her friends about it. Her friend's boyfriend volunteered to help. He summoned two of his friends, who happened to be skinhead murderers. These skinheads told Lisl they would drive her to her ex-apartment. She didn't want to go with them, but how could she say no? So they go to the apartment and the guys start stealing things. She doesn't want them to steal things, but how could she tell them not to? So finally they leave and decide to race down the mountain. The police chase them for 30 minutes, but how could Lisl tell these guys to stop? She is a regular girl -- too afraid to tell them to stop. So the police finally catch up and arrest them, but in the meantime the cop gets shot and killed. She is clearly a victim of bad luck and circumstance.
----
Way too convenient. It just doesn't hold water to me. Did she kill the cop? Probably not. Did she deserve the sentence? Probably not. Is she completely innocent in all this? Absolutely not.
i believe it is her parent's behind the site--- so yes, it is biased. read hunter thompson's article, then tell me what you think.
surfer
Do you have a link to that? I'm not going to run to the grocery store to buy it right now.Quote from marketsurfer:
i believe it is her parent's behind the site--- so yes, it is biased. read hunter thompson's article, then tell me what you think.
surfer
People v. Auman, 67 P.3d 741 (Colo.App. 09/26/2002)
[1] Colorado Court of Appeals
[2] Court of Appeals No. 99CA0016
[3] 67 P.3d 741, 2002.CO.0000289
[4] September 26, 2002
[5] THE PEOPLE OF THE STATE OF COLORADO, PLAINTIFF-APPELLEE,
v.
LISL E. AUMAN, DEFENDANT-APPELLANT.
[6] City and County of Denver District Court No. 98CR205 Honorable J. Stephen Phillips, Judge Honorable Nancy E. Rice, Judge
[7] Ken Salazar, Attorney General, Paul Koehler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
[8] David S. Kaplan, Colorado State Public Defender, Kathleen A. Lord, Chief Appellate Deputy State Public Defender, Denver, Colorado, for Defendant- Appellant
[9] Peter A. Weir, Executive Director, Colorado District Attorneys' Council, Denver, Colorado; Steven L. Bernard, Assistant District Attorney, Brighton, Colorado, for Amicus Curiae Colorado District Attorneys' Council
[10] Haddon, Morgan & Foreman, P.C., Norman R. Mueller, Rachel Bellis, Denver, Colorado, for Amicus Curiae National Association of Criminal Defense Lawyers
[11] The opinion of the court was delivered by: Judge Webb
[12] JUDGMENT AFFIRMED
[13] Plank*fn1, J., concurs
[14] Jones, J., dissents
[15] In this case primarily challenging the breadth of Colorado's felony murder statute, defendant, Lisl E. Auman, appeals the judgment of conviction entered on jury verdicts finding her guilty of felony murder, second degree burglary, menacing, and conspiracy to commit first degree burglary. We affirm.
[16] Defendant formerly lived at a rooming house known as the "Lodge," in Buffalo Creek, Colorado. Each resident had his or her own room. Defendant had dated another resident of the Lodge (boyfriend), spent time in his room, and kept some of her belongings there.
[17] Defendant broke off her relationship with boyfriend, moved out of the Lodge, and visited a girlfriend at her condominium in Denver. They decided to transfer defendant's belongings from the Lodge to the condominium.
[18] Mattheus Jaehnig and his male friend stopped by the condominium the night before the critical events. According to defendant's statements to police, which were admitted into evidence, she told these two men and girlfriend's live-in boyfriend (D.G.) that she felt ill-treated by boyfriend and wanted to "retaliate." The three men agreed to accompany defendant to the Lodge.
[19] Defendant told police she feared the men might hurt boyfriend if he were there and asked D.G. not to kill him. She said D.G. responded he could not make any promises.
[20] Defendant also told police one of the men inquired about boyfriend's possessions and she responded that boyfriend had two large stereo speakers. She said the group decided to go to the Lodge the following day when fewer people would be present. In statements that were presented during trial, defendant, girlfriend, and D.G. all told police they had not planned to take anything other than defendant's belongings.
[21] Around noon the next day, defendant led the group to the Lodge. Defendant rode in a stolen Trans Am driven by Jaehnig. The others followed in girlfriend's car. Jaehnig had a shotgun and two assault rifles in the Trans Am. Defendant told police she did not know Jaehnig was armed when she rode with him to the Lodge.
[22] Defendant told police that upon arrival at the Lodge, Jaehnig stayed with the cars as the "lookout," while defendant and girlfriend went into defendant's room and began gathering her belongings. Defendant then led D.G. and girlfriend to boyfriend's room.
[23] Bolt cutters were used to cut a padlock on boyfriend's door, although who actually did this is unclear. Girlfriend testified that after the padlock had been cut, defendant handed bolt cutters to her. D.G. testified that Jaehnig carried bolt cutters and other tools in the Trans Am.
[24] Defendant, D.G., and the other man entered boyfriend's room. Several items belonging to him were taken, including the two stereo speakers. His ownership of other items taken was disputed, but defendant told police she saw boyfriend's property taken.
[25] While defendant was in boyfriend's room, a resident of the Lodge asked, "Are you taking [boyfriend's] stuff?" Any wrongdoing was denied. However, this resident became suspicious and wrote down the license plate numbers of the two cars.
[26] Various items from both rooms were loaded into the two cars. Defendant and Jaehnig then left in the Trans Am, with Jaehnig again driving. The others drove off in girlfriend's car in the opposite direction. Shortly thereafter, residents of the Lodge called 911, reported a crime, and gave the license numbers.
[27] About ten miles from the Lodge, deputies began following the Trans Am toward Denver and turned on their overhead lights. When Jaehnig did not stop, a high-speed chase ensued. Defendant told police she was very frightened during the chase and asked Jaehnig to stop several times, but he continued into Denver.
[28] Traffic caused the Trans Am to stop near a suburban shopping center. Defendant did not attempt to get out, and the Trans Am sped away. The deputies broke off and then resumed pursuit.
[29] While defendant briefly held the steering wheel, Jaehnig leaned out the car window and shot at the pursuing deputies. Defendant explained to police that Jaehnig told her to take the wheel, but did not threaten her or force her to do so. Defendant also said she steered the car so it would not go off the road and likely kill her.
[30] As the chase continued, the Trans Am struck another car and again briefly came to a complete stop. Defendant told police she did not then attempt to get out of the car because she was afraid of Jaehnig and he had told her, "Don't even think about it."
[31] Jaehnig and defendant reached girlfriend's condominium and went into an alcove outside the entrance. Police officers approached and made several demands for surrender. Defendant stepped out of the alcove. Jaehnig disappeared from the officers' sight.
[32] Officers grabbed defendant, forced her to the ground, and handcuffed her. They repeatedly asked her where Jaehnig had gone. Defendant responded that she did not know what they were talking about. The officers then put defendant in a squad car.
[33] Approximately five minutes later, a police officer looked around the corner of the alcove. Jaehnig shot and killed the officer. A gun battle then broke out. After exhausting his ammunition, Jaehnig killed himself with the deceased officer's pistol.
[34] An autopsy revealed high levels of methamphetamines in Jaehnig's system. According to a defense expert at trial, the drug would have made Jaehnig paranoid, violent, and irresponsible.
[35] At police headquarters, defendant consented to a videotaped interview. A few hours later, she agreed to a second videotaped interview, during which she admitted lying to police in the first interview and then described the events differently. Both videotapes were played to the jury.
[36] As relevant here, defendant was charged with first degree felony murder, attempted first degree murder, first degree assault, menacing, first degree burglary, conspiracy to commit first degree burglary, and second degree burglary.
[37] At the request of the People, the second degree burglary count was dismissed the day jury selection began. At defendant's request, however, the court instructed the jury on second degree burglary as a lesser included offense.
[38] The jury found defendant guilty of felony murder, second degree burglary, menacing, and conspiracy to commit first degree burglary.
[39] I. The Information
[40] Defendant first asserts the information charging her with felony murder did not provide adequate notice of the predicate felony, burglary, and therefore the trial court lacked jurisdiction. We do not agree.
[1] Colorado Court of Appeals
[2] Court of Appeals No. 99CA0016
[3] 67 P.3d 741, 2002.CO.0000289
[4] September 26, 2002
[5] THE PEOPLE OF THE STATE OF COLORADO, PLAINTIFF-APPELLEE,
v.
LISL E. AUMAN, DEFENDANT-APPELLANT.
[6] City and County of Denver District Court No. 98CR205 Honorable J. Stephen Phillips, Judge Honorable Nancy E. Rice, Judge
[7] Ken Salazar, Attorney General, Paul Koehler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
[8] David S. Kaplan, Colorado State Public Defender, Kathleen A. Lord, Chief Appellate Deputy State Public Defender, Denver, Colorado, for Defendant- Appellant
[9] Peter A. Weir, Executive Director, Colorado District Attorneys' Council, Denver, Colorado; Steven L. Bernard, Assistant District Attorney, Brighton, Colorado, for Amicus Curiae Colorado District Attorneys' Council
[10] Haddon, Morgan & Foreman, P.C., Norman R. Mueller, Rachel Bellis, Denver, Colorado, for Amicus Curiae National Association of Criminal Defense Lawyers
[11] The opinion of the court was delivered by: Judge Webb
[12] JUDGMENT AFFIRMED
[13] Plank*fn1, J., concurs
[14] Jones, J., dissents
[15] In this case primarily challenging the breadth of Colorado's felony murder statute, defendant, Lisl E. Auman, appeals the judgment of conviction entered on jury verdicts finding her guilty of felony murder, second degree burglary, menacing, and conspiracy to commit first degree burglary. We affirm.
[16] Defendant formerly lived at a rooming house known as the "Lodge," in Buffalo Creek, Colorado. Each resident had his or her own room. Defendant had dated another resident of the Lodge (boyfriend), spent time in his room, and kept some of her belongings there.
[17] Defendant broke off her relationship with boyfriend, moved out of the Lodge, and visited a girlfriend at her condominium in Denver. They decided to transfer defendant's belongings from the Lodge to the condominium.
[18] Mattheus Jaehnig and his male friend stopped by the condominium the night before the critical events. According to defendant's statements to police, which were admitted into evidence, she told these two men and girlfriend's live-in boyfriend (D.G.) that she felt ill-treated by boyfriend and wanted to "retaliate." The three men agreed to accompany defendant to the Lodge.
[19] Defendant told police she feared the men might hurt boyfriend if he were there and asked D.G. not to kill him. She said D.G. responded he could not make any promises.
[20] Defendant also told police one of the men inquired about boyfriend's possessions and she responded that boyfriend had two large stereo speakers. She said the group decided to go to the Lodge the following day when fewer people would be present. In statements that were presented during trial, defendant, girlfriend, and D.G. all told police they had not planned to take anything other than defendant's belongings.
[21] Around noon the next day, defendant led the group to the Lodge. Defendant rode in a stolen Trans Am driven by Jaehnig. The others followed in girlfriend's car. Jaehnig had a shotgun and two assault rifles in the Trans Am. Defendant told police she did not know Jaehnig was armed when she rode with him to the Lodge.
[22] Defendant told police that upon arrival at the Lodge, Jaehnig stayed with the cars as the "lookout," while defendant and girlfriend went into defendant's room and began gathering her belongings. Defendant then led D.G. and girlfriend to boyfriend's room.
[23] Bolt cutters were used to cut a padlock on boyfriend's door, although who actually did this is unclear. Girlfriend testified that after the padlock had been cut, defendant handed bolt cutters to her. D.G. testified that Jaehnig carried bolt cutters and other tools in the Trans Am.
[24] Defendant, D.G., and the other man entered boyfriend's room. Several items belonging to him were taken, including the two stereo speakers. His ownership of other items taken was disputed, but defendant told police she saw boyfriend's property taken.
[25] While defendant was in boyfriend's room, a resident of the Lodge asked, "Are you taking [boyfriend's] stuff?" Any wrongdoing was denied. However, this resident became suspicious and wrote down the license plate numbers of the two cars.
[26] Various items from both rooms were loaded into the two cars. Defendant and Jaehnig then left in the Trans Am, with Jaehnig again driving. The others drove off in girlfriend's car in the opposite direction. Shortly thereafter, residents of the Lodge called 911, reported a crime, and gave the license numbers.
[27] About ten miles from the Lodge, deputies began following the Trans Am toward Denver and turned on their overhead lights. When Jaehnig did not stop, a high-speed chase ensued. Defendant told police she was very frightened during the chase and asked Jaehnig to stop several times, but he continued into Denver.
[28] Traffic caused the Trans Am to stop near a suburban shopping center. Defendant did not attempt to get out, and the Trans Am sped away. The deputies broke off and then resumed pursuit.
[29] While defendant briefly held the steering wheel, Jaehnig leaned out the car window and shot at the pursuing deputies. Defendant explained to police that Jaehnig told her to take the wheel, but did not threaten her or force her to do so. Defendant also said she steered the car so it would not go off the road and likely kill her.
[30] As the chase continued, the Trans Am struck another car and again briefly came to a complete stop. Defendant told police she did not then attempt to get out of the car because she was afraid of Jaehnig and he had told her, "Don't even think about it."
[31] Jaehnig and defendant reached girlfriend's condominium and went into an alcove outside the entrance. Police officers approached and made several demands for surrender. Defendant stepped out of the alcove. Jaehnig disappeared from the officers' sight.
[32] Officers grabbed defendant, forced her to the ground, and handcuffed her. They repeatedly asked her where Jaehnig had gone. Defendant responded that she did not know what they were talking about. The officers then put defendant in a squad car.
[33] Approximately five minutes later, a police officer looked around the corner of the alcove. Jaehnig shot and killed the officer. A gun battle then broke out. After exhausting his ammunition, Jaehnig killed himself with the deceased officer's pistol.
[34] An autopsy revealed high levels of methamphetamines in Jaehnig's system. According to a defense expert at trial, the drug would have made Jaehnig paranoid, violent, and irresponsible.
[35] At police headquarters, defendant consented to a videotaped interview. A few hours later, she agreed to a second videotaped interview, during which she admitted lying to police in the first interview and then described the events differently. Both videotapes were played to the jury.
[36] As relevant here, defendant was charged with first degree felony murder, attempted first degree murder, first degree assault, menacing, first degree burglary, conspiracy to commit first degree burglary, and second degree burglary.
[37] At the request of the People, the second degree burglary count was dismissed the day jury selection began. At defendant's request, however, the court instructed the jury on second degree burglary as a lesser included offense.
[38] The jury found defendant guilty of felony murder, second degree burglary, menacing, and conspiracy to commit first degree burglary.
[39] I. The Information
[40] Defendant first asserts the information charging her with felony murder did not provide adequate notice of the predicate felony, burglary, and therefore the trial court lacked jurisdiction. We do not agree.
41] The information charged defendant with felony murder in count one as follows:
[42] On or about the 12th day of November, A.D. 1997, at the City and County of Denver, State of Colorado, Lisl E. Auman, did unlawfully and feloniously, acting alone and with one or more persons, commit and attempt to commit the felony of Burglary; and, in the course of and in furtherance of said crime that defendant was committing and attempting to commit, and in immediate flight therefrom, the death of a person other than one of the participants, namely [the deceased officer] was caused . . . .
[43] Two other counts of the information separately charged defendant with first degree burglary and second degree burglary. Both counts described the same incident, but the first degree count also alleged use of a deadly weapon, assault, and menacing in connection with the burglary or flight therefrom. Before trial, defendant did not challenge the information.
[44] When faced with a challenge to an information, courts consider defects in both substance and form. A substantive defect "renders void any conviction entered on such charge." People v. Williams, 984 P.2d 56, 64 (Colo. 1999). However, an information generally will be deemed adequate in substance if it tracks the language of the pertinent statutes as to essential elements. People v. Williams, supra.
[45] The language in count one follows the language of the felony murder statute, which lists "burglary" among the predicate felonies. See Colo. Sess. Laws 1988, ch. 124, § 18-3-102(1)(b) at 712 (version applicable to defendant's offense). Therefore, the information was substantively sufficient and conferred jurisdiction on the trial court. See People v. Richardson, ___ P.3d ___ (Colo. App. No. 99CA1230, Feb. 14, 2002).
[46] The failure to specify an underlying offense is a defect in form. People v. Richardson, supra. "Objections to the form of an information must be made before trial or they are waived." People v. Williams, supra, 984 P.2d at 64. Nevertheless, a defect in the form of an information may render a conviction void if the defect substantially prejudices rights of the defendant. People v. Richardson, supra. When determining whether a defect in form caused prejudice, courts consider the surrounding circumstances, including the context provided by other counts in the information. People v. Williams, 23 P.3d 1229 (Colo. App. 2000)(Williams II).
[47] Although defendant now claims lack of specificity as to which burglary count was the predicate offense for felony murder hindered her trial preparation, she did not seek a bill of particulars. Moreover, throughout the pretrial phase other counts made clear to her that the two charged burglaries involved exactly the same incident.
[48] Defendant also contends she received inadequate notice that during trial second degree burglary could become the basis for her felony murder conviction. However, second degree burglary was originally charged, and, after that charge had been dismissed, defendant requested it be submitted to the jury as a lesser included offense. Cf. Williams II, supra (When a lesser nonincluded offense instruction is requested by the defense, the information is thereby deemed amended to include that charge).
[49] Accordingly, we conclude the absence of an allegation in the information specifying which burglary count constituted the predicate offense to felony murder could not have prejudiced defendant.
[50] II. Felony Murder
[51] The primary focus of defendant's appeal alleges various errors concerning interpretation of the felony murder statute, related jury instructions, and evidence. We find no reversible error.
[52] A. Statutory Construction
[53] Defendant first argues the felony murder statute should be interpreted as limited to her immediate flight, which she further contends necessarily ended upon her arrest. We disagree with her proposed interpretation.
[54] Our fundamental responsibility when interpreting a statute is to give effect to the language used by the General Assembly. If the statutory language unambiguously sets forth the legislative purpose, we end our inquiry. Reg'l Transp. Dist. v. Lopez, 916 P.2d 1187 (Colo. 1996). Conversely, if this language does not clearly establish the General Assembly's purpose, then we may determine its meaning from extrinsic sources. Section 2-4-203, C.R.S. 2002; Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215 (Colo. 2002).
[55] Defendant asserts "an individual's liability under the statute is terminated if the individual is no longer 'committing' the [predicate] felony or is no longer in immediate flight from the felony she 'is committing.'" No Colorado case has addressed this question, and we are not persuaded by defendant's argument.
[56] In our view, the first prong of defendant's argument mistakenly equates termination of the predicate felony that "he is committing" with immediate flight, which is not so restricted. See People v. Gladman, 41 N.Y.2d 123, 128, 359 N.E.2d 420, 424 (1976)(addition to felony murder statute of "immediate flight" was "intended to do away with many of the old technical distinctions relating to 'abandonment' or 'completion'" of the predicate felony); cf. People v. Renaud, 942 P.2d 1253 (Colo. App. 1996)(in flight cases, the predicate felony may have been completed).
[57] The second prong of this argument goes against the statutory language, in which we find no ambiguity. Had the General Assembly intended to restrict "immediate flight" to conduct of the defendant, it could have used the phrase, "or of his or her immediate flight therefrom."
[58] Under the applicable version of § 18-3-102(1)(b), a person commits felony murder if, acting alone or with others, "he commits or attempts to commit" a listed predicate felony and "in the course of or in furtherance of the crime that he is committing or attempting to commit, or of immediate flight therefrom, the death of a [non-participant] is caused by anyone."
[59] The phrase "he commits or attempts" precedes the list of predicate felonies. In addition, the phrase "he is committing or attempting to commit" modifies the requirement of "in the course of or in furtherance of the crime." The following phrase, "immediate flight therefrom," is set off by commas and is not restricted to a defendant's own immediate flight.
[60] When the legislature uses certain language in one part of a statute and different language in another part, a court should assume that different meanings are intended. Every word excluded from a statute must be presumed to have been excluded for a reason. 2A Norman J. Singer, Sutherland Statutory Construction § 46.06 (6th ed. 2000); see also People v. J.H.H., 17 P.3d 159 (Colo. 2001)(courts should not presume the General Assembly used language idly).
[61] Moreover, a predicate felony committed by multiple participants can give rise to separate paths of "immediate flight," any one of which could lead to "the death of a person." Even if a defendant took a completely separate path from the flight that caused the death, the phrase "caused by anyone" indicates the defendant would still be culpable.
[62] Thus, the statute reflects a policy judgment that persons who engage in certain dangerous crimes which result in death "will be punished in accordance with the serious results of that conduct, even if the death was an unintended consequence." People v. Griffin, 867 P.2d 27, 35 (Colo. App. 1993)(Rothenberg, J., dissenting in part and concurring in part). This broad purpose further weighs against defendant's interpretation.
[63] Hence, we reject defendant's interpretation of the statute. Nevertheless, some of defendant's remaining arguments concerning felony murder require analysis independent of her interpretation, and we address them accordingly.
[64] B. Precedent from Other Jurisdictions
[65] Noting the absence of any Colorado felony murder case involving a killing after the defendant's arrest, defendant urges us to follow out- of-state authority stating that felony murder liability terminates upon a defendant's arrest. We decline to do so.
[42] On or about the 12th day of November, A.D. 1997, at the City and County of Denver, State of Colorado, Lisl E. Auman, did unlawfully and feloniously, acting alone and with one or more persons, commit and attempt to commit the felony of Burglary; and, in the course of and in furtherance of said crime that defendant was committing and attempting to commit, and in immediate flight therefrom, the death of a person other than one of the participants, namely [the deceased officer] was caused . . . .
[43] Two other counts of the information separately charged defendant with first degree burglary and second degree burglary. Both counts described the same incident, but the first degree count also alleged use of a deadly weapon, assault, and menacing in connection with the burglary or flight therefrom. Before trial, defendant did not challenge the information.
[44] When faced with a challenge to an information, courts consider defects in both substance and form. A substantive defect "renders void any conviction entered on such charge." People v. Williams, 984 P.2d 56, 64 (Colo. 1999). However, an information generally will be deemed adequate in substance if it tracks the language of the pertinent statutes as to essential elements. People v. Williams, supra.
[45] The language in count one follows the language of the felony murder statute, which lists "burglary" among the predicate felonies. See Colo. Sess. Laws 1988, ch. 124, § 18-3-102(1)(b) at 712 (version applicable to defendant's offense). Therefore, the information was substantively sufficient and conferred jurisdiction on the trial court. See People v. Richardson, ___ P.3d ___ (Colo. App. No. 99CA1230, Feb. 14, 2002).
[46] The failure to specify an underlying offense is a defect in form. People v. Richardson, supra. "Objections to the form of an information must be made before trial or they are waived." People v. Williams, supra, 984 P.2d at 64. Nevertheless, a defect in the form of an information may render a conviction void if the defect substantially prejudices rights of the defendant. People v. Richardson, supra. When determining whether a defect in form caused prejudice, courts consider the surrounding circumstances, including the context provided by other counts in the information. People v. Williams, 23 P.3d 1229 (Colo. App. 2000)(Williams II).
[47] Although defendant now claims lack of specificity as to which burglary count was the predicate offense for felony murder hindered her trial preparation, she did not seek a bill of particulars. Moreover, throughout the pretrial phase other counts made clear to her that the two charged burglaries involved exactly the same incident.
[48] Defendant also contends she received inadequate notice that during trial second degree burglary could become the basis for her felony murder conviction. However, second degree burglary was originally charged, and, after that charge had been dismissed, defendant requested it be submitted to the jury as a lesser included offense. Cf. Williams II, supra (When a lesser nonincluded offense instruction is requested by the defense, the information is thereby deemed amended to include that charge).
[49] Accordingly, we conclude the absence of an allegation in the information specifying which burglary count constituted the predicate offense to felony murder could not have prejudiced defendant.
[50] II. Felony Murder
[51] The primary focus of defendant's appeal alleges various errors concerning interpretation of the felony murder statute, related jury instructions, and evidence. We find no reversible error.
[52] A. Statutory Construction
[53] Defendant first argues the felony murder statute should be interpreted as limited to her immediate flight, which she further contends necessarily ended upon her arrest. We disagree with her proposed interpretation.
[54] Our fundamental responsibility when interpreting a statute is to give effect to the language used by the General Assembly. If the statutory language unambiguously sets forth the legislative purpose, we end our inquiry. Reg'l Transp. Dist. v. Lopez, 916 P.2d 1187 (Colo. 1996). Conversely, if this language does not clearly establish the General Assembly's purpose, then we may determine its meaning from extrinsic sources. Section 2-4-203, C.R.S. 2002; Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215 (Colo. 2002).
[55] Defendant asserts "an individual's liability under the statute is terminated if the individual is no longer 'committing' the [predicate] felony or is no longer in immediate flight from the felony she 'is committing.'" No Colorado case has addressed this question, and we are not persuaded by defendant's argument.
[56] In our view, the first prong of defendant's argument mistakenly equates termination of the predicate felony that "
[57] The second prong of this argument goes against the statutory language, in which we find no ambiguity. Had the General Assembly intended to restrict "immediate flight" to conduct of the defendant, it could have used the phrase, "or of his or her immediate flight therefrom."
[58] Under the applicable version of § 18-3-102(1)(b), a person commits felony murder if, acting alone or with others, "
[59] The phrase "
[60] When the legislature uses certain language in one part of a statute and different language in another part, a court should assume that different meanings are intended. Every word excluded from a statute must be presumed to have been excluded for a reason. 2A Norman J. Singer, Sutherland Statutory Construction § 46.06 (6th ed. 2000); see also People v. J.H.H., 17 P.3d 159 (Colo. 2001)(courts should not presume the General Assembly used language idly).
[61] Moreover, a predicate felony committed by multiple participants can give rise to separate paths of "immediate flight," any one of which could lead to "the death of a person." Even if a defendant took a completely separate path from the flight that caused the death, the phrase "caused by anyone" indicates the defendant would still be culpable.
[62] Thus, the statute reflects a policy judgment that persons who engage in certain dangerous crimes which result in death "will be punished in accordance with the serious results of that conduct, even if the death was an unintended consequence." People v. Griffin, 867 P.2d 27, 35 (Colo. App. 1993)(Rothenberg, J., dissenting in part and concurring in part). This broad purpose further weighs against defendant's interpretation.
[63] Hence, we reject defendant's interpretation of the statute. Nevertheless, some of defendant's remaining arguments concerning felony murder require analysis independent of her interpretation, and we address them accordingly.
[64] B. Precedent from Other Jurisdictions
[65] Noting the absence of any Colorado felony murder case involving a killing after the defendant's arrest, defendant urges us to follow out- of-state authority stating that felony murder liability terminates upon a defendant's arrest. We decline to do so.