Tuesday, March 3, 1998

Colorado Supreme Court People v. Bartowsheski 81SA556

Decided March 7, 1983

   Bartowsheski and Tarwater were living with a guy who ran the landscaping business where they worked, when there was an argument over money.  Bartowsheski and Tarwater thought their boss owed them money, he thought they owed him money.  After a night of drinking, the two decided to handle their dispute by stealing a bunch of guns from their boss and leaving town.  Tarwater stayed in the car, ready to drive away, while Bartowsheski went into the house to get their stuff (and their boss' stuff).  When Bartowsheski didn't come out for a while, Tarwater fell asleep.

   Meanwhile, Bartowsheski was inside murdering their boss' eight year old daughter.  Apparently, she was in the front room and he had to walk past her to get to the guns, and he was too stupid to come up with a less final way around her than to stab her eight times and slit her throat.  After that, he went outside and woke Tarwater up and the two of them left.

   They made it as far as Kansas, but they were arrested there.  Tarwater had apparently been unaware of the murder and testified against Bartowsheski.  Bartowsheski was convicted of 1st Degree Murder (after deliberation), 1st Degree Murder (Felony Murder), and Robbery.  He appealed, arguing insufficiency of the evidence (among other things).

   Bartowsheski argued that the evidence didn't show that there was deliberation before the murder, but circumstantial evidence suggested that he had killed the little girl so that she couldn't interfere with the theft.  Deliberation doesn't have to be something that takes a long time, it's just a matter of the defendant taking a moment to evaluate what he is going to do and then deciding to do it.

   Bartowsheski also argued that the evidence didn't support robbery.  He acknowledged that there was evidence to support the unlawful taking of property from the house, but contended that the taking didn't happen at the same time as the use of violence.  The court held that it doesn't have to, though.  Robbery is basically the use of violence or intimidation at any point in a transaction which culminates in the unlawful taking of property.  It doesn't matter if the victim is even aware of the taking, or if the taking and the violence occur at different times or places within that transaction.  So long as the victim would have been able to retain control of the property but for the use of violence or intimidation, the elements of robbery are met.  In this case, the eight year old girl was killed so that she would not interfere with the taking of some guns, so even though the guns were taken from a different part of the house and even though they weren't taken at the same time as the girl was killed, the elements are met.

   And finally, Bartowsheski made some double jeopardy arguments.  The court held that robbery is a lesser included offense of felony murder, and so the robbery conviction had to be vacated.  On the other hand, since felony murder and murder after deliberation have distinct elements, both of those convictions stood.

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