The trial court relied on the standards for a mistrial established in People v. Schwartz, 678 P.2d 1000 (Colo. 1984), and People v. Fincham, 799 P.2d 419 (Colo.App. 1990), and concluded that they were not present here and that a limiting instruction would remedy the error. In Schwartz, the court stated that the purpose of the manifest necessity test, used in determining when mistrial is proper, is to protect a defendant against bad faith conduct of a prosecutor or judge and should be invoked where a mistrial would afford the prosecution a more favorable opportunity to convict the defendant.
1998); see also People v. Drake, 785 P.2d 1253, 1256 (Colo. 1989) (requiring independent evidence to show that a statement against interest that inculpated the accused was reliable, thereby implicitly recognizing that CRE 804(b)(3) is not a firmly rooted exception to the hearsay rule); People v. Fincham, 799 P.2d 419, 422 (Colo.App. 1990) ("While it is true that reliability may be inferred where the evidence falls within a firmly rooted exception, a declaration against penal interest is too large a class for meaningful Confrontation Clause analysis.") (citation omitted). Notwithstanding these cases, the People argue that the Supreme Court has left open the possibility that the hearsay exception for declarations against interest by an unavailable witness may be considered a firmly rooted hearsay exception when the statement at issue is "genuinely self-inculpatory."
This statement in Drake recognized that statements against penal interest inculpating the accused are not firmly rooted exceptions to the hearsay rule. See also People v. Fincham, 799 P.2d 419, 422 (Colo.App. 1990) ("While it is true that reliability may be inferred where the evidence falls within a firmly rooted exception, a declaration against penal interest is too large a class for meaningful Confrontation Clause analysis." (citation omitted)).
Under Lowe and Bartowsheski, when a defendant has been convicted on two different counts of first-degree murder for a single homicide, the convictions should be vacated, and the trial court should be directed to enter as many convictions and impose as many sentences as are legally possible to fully effectuate the jury's verdict. See, e.g., O'Neill, 803 P.2d at 179 (vacating felony murder conviction and affirming convictions for murder after deliberation and kidnapping); Saathoff, 790 P.2d at 807 (vacating felony murder conviction and affirming convictions for murder after deliberation and sexual assault); People v. Fincham, 799 P.2d 419, 425 (Colo.App. 1990) (same); People v. Ragland, 747 P.2d 4, 6 (Colo.App. 1987) (vacating felony murder conviction and affirming convictions for murder after deliberation and burglary). In each of the preceding cases the trial court selected the combination of offenses that produced the most convictions and the longest sentences in order to maximize the effect of the juries' verdicts.
People v. Fincham, 799 P.2d 419 (Colo.App. 1990), cert. denied, No. 90SC447 (Nov. 13, 1990). The facts underlying Davis' convictions are set forth fully in Davis I. 794 P.2d at 167-70.
Because the excited utterance exception extends to statements made in response to questioning, People v. Hulsing, 825 P.2d 1027, 1032 (Colo.App. 1991), and because the record here supports the trial court's application of the excited utterance exception, we find no abuse of discretion in the admission of the victim's statement into evidence. See People v. Martinez, supra, 18 P.3d at 835; People v. Fincham, 799 P.2d 419, 423 (Colo.App. 1990) (no error in admitting statement where court is satisfied that the event was sufficient to cause adequate excitement); Kielsmier v. Foster, 669 P.2d 630, 633 (Colo.App. 1983) (admitting, as excited utterance, statement made by injured biker to ambulance driver at scene of accident). B. Confrontation
Defendant argues fifteen minutes is the longest delay between a startling event and an excited utterance that Colorado appellate courts have permitted. See People v. Hulsing, 825 P.2d 1027 (Colo.App. 1991).But see People v. Martinez, 18 P.3d 831 (Colo.App. 2000) (victim's statement, made within 15 or 20 minutes after she was removed from the scene, was an excited utterance); People v. Fincham, 799 P.2d 419 (Colo.App. 1990) (allowing excited utterances of children made less than two hours after mother's abduction). The excited utterance exception "has been liberally interpreted so as to extend to statements made following a lapse of time from the startling event itself."
If, as here, an affirmative defense is available under the statutory scheme, the trial court has the duty to determine if sufficient evidence has been presented to raise a factual issue as to the existence of the defense. See People v. Fincham, 799 P.2d 419 (Colo.App. 1990) (whether evidence raises affirmative defense is a question of law). Similarly, whether the evidence presented warrants giving a further instruction as to exceptions to the asserted affirmative defense also lies within the court's province.
When viewed as a whole, they adequately informed the jury that the prosecution had to disprove the affirmative defense of insanity beyond a reasonable doubt. See People v. Fincham, 799 P.2d 419 (Colo.App. 1990). Accordingly, it was not error, let alone plain error, to fail to give COLJI-Crim. No. 7:01 or a similar instruction on affirmative defenses.
See People v. Sandoval, supra; and compare People v. Young, 825 P.2d 1004 (Colo. 1991) (expert testimony on defendant's perception of danger as it related to claim of self-defense not evidence of impaired mental condition) with People v. Fincham, 799 P.2d 419 (Colo.App. 1990) (evidence of dependent personality disorder, determined to be evidence of impaired mental condition, precluded because of failure to assert IMC defense). In its ruling, the trial court described defendant's proffered evidence as an attempt to show that, because defendant did not process information quickly, he did not "understand the reality" that there was a knife in his friend's hand.