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Key v. People1/31/1986
JUSTICE ERICKSON delivered the Opinion of the Court.
Kipling Key, the defendant, was convicted of first-degree murder in the El Paso County District Court. The court of appeals affirmed. People v. Key, 680 P.2d 1313 (Colo. App. 1984). The court held that although one of the trial court's jury instructions defining "after deliberation" was erroneous, the error was harmless beyond a reasonable doubt. We granted certiorari and now affirm.
I.
Key was charged with the first-degree murder of James Shadday. Key admitted that he killed Shadday but maintained at trial that he acted in a hasty and impulsive manner in a fight with Shadday.
Harold Duane Johnson, a friend of both Key and Shadday, was the prosecution's chief witness. His testimony established the facts surrounding the homicide and also provided the jury with evidence about the relationship between Key and Shadday.
Johnson met Key and Shadday in November 1980, when the two men were sharing a room with Johnson's younger brother, John, at the United States Army base at Fort Carson. Johnson was also in the Army at the time of the homicide but lived off the base. Shadday owned a four-wheel drive pickup truck and, according to Johnson, gave Key a set of keys to the vehicle. Johnson testified that Shadday and Key drove into the mountains on a weekly basis to practice target shooting with a two-shot .22 caliber derringer that Key kept, with Shadday's approval, in the glove compartment of the truck. Johnson considered Key and Shadday to be good friends and stated that he had never seen them argue or fight. Prior to his death, however, Shadday had been assigned to another room in the barracks at the request of Key and Johnson's brother. Shadday, according to Johnson, was upset at being asked to move.
Johnson testified that on Wednesday, May 13, 1981, he and Key went to a bar. During a discussion concerning Shadday's truck, Key told Johnson: "I could take Jimmy Shadday up in the mountains and shoot him. . . . I could take the truck because I had been buying the truck from him. . . ." Other evidence indicated that Key and Shadday had gone shopping for trucks that week but Key had been told by a salesman that he could not qualify for a loan. Johnson had not been alarmed by Key's statement because he did not think Key was serious.
Johnson last saw the victim late in the afternoon on Thursday, May 14. The next day he saw his brother and Key driving on the base in Shadday's truck. Key explained his possession of the victim's vehicle to Johnson by telling him that Shadday had gone AWOL (absent without official leave) after selling his truck to Key. On that same day, Key went to the dealership which sold the truck to Shadday and attempted to have the vehicle's registration changed to his name so that he could take over the remaining payments. Later that evening, Key came to Johnson and confessed that he killed Shadday. Key told Johnson that he and Shadday had gone to the mountains to do some target shooting. He said that they began to argue about the room situation. During an ensuing fistfight, Key shot the victim four times in the head. Johnson testified that Key told him: "And he [Shadday] wouldn't die, and I picked up a rock and mashed his head in, and he still wouldn't die. So I took his truck and ran over his head, and he still wouldn't die. And I got scared and drug him out in the woods."
Shadday's body was discovered by a jogger about noon on Friday, May 15, on Gold Camp Road outside of Colorado Springs. Shadday had four gunshot wounds, two to the front of his head and two to the back of his head. His skull had been crushed, and there were tire-t
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