Takeaway
In short, this case holds that a belief that a victim is dead does not negate theft intent, and a police decoy does not amount to entrapment when the defendant independently decides to steal.
Denver police set up a decoy operation near 15th and Welton Streets. One officer lay face down in a shop entryway, posed as a drunk and carrying a wallet containing marked bills. Walker approached the officer, took the wallet's money, and was arrested less than a block away with the marked bills in his pocket.
Walker testified that he initially approached to help, but concluded the officer was dead because the body was stiff and showed no signs of violence. He admitted taking the money, reasoning that a dead person would no longer need it. A jury convicted him of theft under § 18-4-401(4), C.R.S. 1973. On appeal, Walker challenged the sufficiency of the evidence, asserted entrapment, and argued that the trial court wrongly refused several jury instructions.
Issue #1
Whether Walker lacked the specific intent required for theft because he believed he was taking money from a dead person.
Holding
No. Even if Walker genuinely believed the officer was dead, the evidence supported an intent to permanently deprive another of property.
Reasoning
Walker argued that taking money from someone he believed to be dead could not show an intent to deprive “another” of property. The court rejected that premise. A person's death does not make the person's property available for others to take.
Upon death, the decedent's heirs or devisees become the rightful possessors of the property pending probate or estate administration. Walker therefore had no right to possess the money whether he took it from a living person or from a body he thought was dead.
Issue #2
Whether the police decoy operation established entrapment as a matter of law.
Holding
No. The police merely provided an opportunity to commit theft; the evidence permitted the jury to find that Walker formed the criminal intent himself.
Reasoning
Colorado's entrapment statute bars law-enforcement methods that create a substantial risk that a person would commit an offense that, absent the inducement, the person would not have conceived or undertaken. The critical distinction is between impermissibly inducing a crime and simply furnishing an opportunity to a person already ready and willing to commit it.
Walker testified that he independently decided to take the money after concluding that the apparent drunk was dead and would have no further use for it. That account showed that the decision to steal originated with Walker, not with the officers. Entrapment was therefore not established as a matter of law, and the trial court properly submitted the issue to the jury.
Issue #3
Whether the trial court had to instruct the jury that Walker's admission of a 1970 felony conviction could be considered only for impeachment.
Holding
No. Because entrapment was in issue, the prior conviction was relevant as substantive evidence of Walker's predisposition to commit the crime.
Reasoning
Walker introduced his own prior felony conviction on direct examination, hoping to reduce the effect of the prosecutor's anticipated impeachment. He argued that the jury should nonetheless have received a limiting instruction restricting the conviction's use to credibility.
Colorado follows the subjective approach to entrapment, under which the defendant's predisposition is relevant. Because the prior felony could be weighed as substantive evidence bearing on predisposition, rather than solely as impeachment evidence, the refusal to give a limiting instruction was not reversible error.
Issue #4
Whether the trial court erred by refusing Walker's tendered instructions on entrapment and consent.
Holding
No. The instructions given adequately covered entrapment, and the evidence did not support a consent instruction.
Reasoning
A trial court need not give a duplicative instruction when the instructions already given adequately explain the defendant's asserted defense. The court concluded that the jury instructions sufficiently covered entrapment.
Nothing in the evidence supported a theory that the officer, or anyone entitled to the money, consented to Walker's taking it. The trial court therefore properly refused Walker's proposed consent instruction.