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People v. Fisher7/5/1988
JUSTICE VOLLACK delivered the Opinion of the Court.
The prosecution filed this appeal from the district court's denial of its "Motion to File Information Directly in the District Court" pursuant to Crim . P. 7(c)(2). We reverse and remand with directions to the district court to grant the prosecution's motion to reinstate the original charges in the district court.
I.
This case arises from an incident that took place on September 21, 1986. Evidence at the preliminary hearing established that on the day in question, police officers were called to a Denver address on a report of a shooting. Officers arrived at the single family residence to find the body of Robert Vizina in the front room of the house. A bullet had entered Vizina's body through the right armpit, traveled through the body, and lodged in the left hip. At the scene, the police recovered a .38 special revolver with four live rounds inside and two spent shells; the hammer of the gun was in a cocked position. The investigating detective found a second bullet lodged in a ceiling joist in the same room where the body was found. A pathologist at Denver General Hospital conducted an autopsy of Vizina's body and determined that the cause of his death was a gunshot wound to the upper body which severed several major organs.
Detective Penington, who testified at the preliminary hearing, requested that a nitrate pattern test be performed to determine the distance from the muzzle of the weapon to the victim at the time the weapon was fired. The result of the test showed that the muzzle of the revolver "was further than three feet from the victim when it was fired" because there was no nitric pattern on either the victim or his clothing. Detective Penington also requested that a gunshot residue test be performed. This test detects the presence of barium, lead, and antimony content expended from a weapon at the time of discharge. This test was performed on both Fisher and on Vizina's body. As to Vizina's body, the results were negative. Although the results were inconclusive as to Fisher, the detective testified that gunshot residue was found on the back of her left hand.
Another officer at the scene interviewed the defendant's neighbor. The neighbor told the officer that he had seen Fisher go to the recreational vehicle parked outside her house about ten minutes before he heard sirens and saw emergency equipment arriving at Fisher's house.
Detective Penington testified that he took two statements from Fisher. Fisher was advised of her rights at 7:16 p.m. and gave her first statement to Penington at that time. This statement was not taped. Penington testified that Fisher said she had spent the morning canning and "had had a couple of . . . 3.2 beers." Fisher told him that when Vizina returned to the house in an intoxicated condition, he lay down on the bed in the bedroom and she covered him with a quilt. When he got up at noon he brought out a bottle of bourbon and she "had a couple of drinks with him." While Vizina sat on the couch, the two "began discussing his failure to help payments with the house or with money around the house." Vizina asked Fisher to go into the recreational vehicle parked outside the house to get a gun for him. Fisher returned to the house with a gun and gave it to Vizina. According to her statements, Vizina handed the gun back to her and said "Shoot me, I'm no good. Shoot me and I won't hurt you anymore" and "Do it." Penington testified that Fisher said "the next thing she knew was the gun -- she heard a loud boom. I asked her where the gun was after she heard this loud noise, and she said she didn't know, that she saw [Vizina] laying on the flo
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