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Rebecca Fincham DAVIS





Classification: Murderer
Characteristics: Kidnapping - Rape
Number of victims: 1
Date of murder: July 21, 1986
Date of birth: ????
Victim profile: Virginia May, 34
Method of murder: Shooting (.22 rifle)
Location: Arapahoe County, Colorado, USA
Status: Sentenced to life in prison in 1987

Killer Couple

Couples who kill together represent some of the most fascinating and disturbing criminals because they are often terribly brutal and cold.

There is often a sexual component to killer couples, and a dominant-submissive relationship is also usually present.

The only generalization that can be made from killer couples is that warped personalities tend to find each other, and sometimes when they do, innocent people suffer.

Gary Davis and Becky Fincham Davis were a couple of reprobates who showed up to work on a ranch 25 miles northeast of Byers, Colorado in February 1986. They were married, but Gary let it be known that he wasn’t satisfied by Becky’s performance in the bedroom. The couple tried adult videotapes to spice things up, but when that didn’t work, they began “cruising around the countryside looking for a pretty girl,” according to trial testimony.

By all accounts, Gary Davis was fixated on sex and had a “thing” for Virginia May and Sue MacLennan, wives of two of the ranch owner’s sons. On at least two occasions, fellow ranch hands testified, Gary expressed his desire for Virginia. One time, he exposed himself toward her home and said, “Come on, Virginia, baby. I’m here. Come to me.”

Virginia apparently didn’t know about Gary’s lust, or if she did, she dismissed it. She also didn’t know that Gary had claimed to have raped 15 women and had met Becky while serving time for a sexual assault.

It didn’t matter, however, because Gary and Becky weren’t looking for a willing partner.

They often considered, according to Gary, looking for women, “picking them up and taking them out in the country and … raping them.”

Prosecutors believed that in July 1986, the Davises went hunting for a victim near Wiggins, Colorado, not far from Byers. In that incident, a woman was visited by a man and woman in a car matching the Davises and asked directions to Byers. The woman in the vehicle, later identified as Becky Davis, asked if the woman’s husband was home while the man, Gary Davis, “maneuvered himself into position behind her.”

When the woman’s husband appeared, the Davises left.

Three days later, Becky called Sue MacLennan and asked whether her husband was home. When Sue responded that he was not, Becky, who had met Sue at church, offered to come by with some baby clothes.

Gary and Becky headed over to the MacLennan homestead without any children’s clothes, but they did have a .22 rifle with them. Fortunately for Sue, when the Davises arrived, a ranch hand was working in the yard, frustrating the couple’s attempt to kidnap Sue MacLennan. While Gary stayed in the car, Becky had a glass of ice tea with Sue MacLennan. She never explained the absence of the baby clothes.

Before 7 p.m. that same night, the Davises appeared at the May home, where Virginia was home alone with her two children, a 7-year-old boy and a 4-year-old girl. Earlier, Becky had called Virginia and promised to stop by with some children’s clothes.

They pulled into the Mays’ driveway and Virginia left her porch, accompanied by the 4-year-old. Becky walked with Virginia and her daughter down to a nearby tool shed, with Gary following in the car.

At the shed, Gary got out of the car and punched Virginia in the face. He ordered her to get into the back of his car and Becky told the little girl to go into the house. Becky then got behind the wheel and drove off, with Gary and their captive in the backseat. Gary sexually assaulted Virginia while Becky sped away.

They took Virginia to a secluded area, tied a rope around her neck and both Gary and Becky sexually assaulted their victim. When they were finished, Gary struck Virginia on the head with the rifle butt, trying to knock her out. The blow did fracture her skull, however. As Gary pointed the .22 at her head, Virginia pleaded for her life and promised to pay the Davises $1,000 if they didn’t kill her.

Her pleas were in vain. Virginia was close enough to the gun when Gary fired that her hands had powder burns on them. Gary fired several shots into her head and after Becky asked if she was dead, for good measure he emptied the clip into Virginia’s breasts and pubic region. They hid her body beneath some hay and then headed home to pick up their cooler.

Gary had remembered that “it had a few more beers in it.”

Virginia’s husband returned home about 8 p.m. to find his frightened children home alone and signs that his wife had been kidnapped. The little girl confirmed his fears, telling him “Becky took her.”

The Adams County Sheriff’s Department became involved that night and the Davises were questioned. They denied knowing anything about Virginia’s disappearance and discounted the claim of Virgina’s daughter. However, the next morning, based on Sue MacLennan’s strange encounter with the Davises and the little girl’s claim, the couple was taken into custody.

Gary tried to pull a fast one with the Adams County authorities. He told his public defender that there was a possibility that Virginia was still alive and needed medical help. In exchange for a promise from the Adams County prosecutor not to seek the death penalty, Gary would tell them where to find Virginia.

The agreement, however, required Gary to be truthful and to offer full disclosure to authorities. When the police found Virginia’s body and it became clear that from the autopsy that Gary knew she was dead when he made his deal, the prosecutor opted to go ahead with the death penalty for him.

Becky received life in prison and Gary, after he allegedly underwent a profound spiritual experience in prison, was executed in 1997. One of his last wishes was for a cigarette, but Colorado prisons were smoke-free at the time and his request was denied. He died by lethal injection.


Gary Lee Davis (1944 - 13 October 1997) was a convicted murder and rapist who was executed by the U.S. state of Colorado in 1997. He is the first person to have been subject to the death penalty in Colorado since the 1960s.

Early life

Davis was born in Wichita, Kansas; although raised by his mother, he later claimed to have suffered sexual abuse from an early age at the hands of his older stepbrothers.

After dropping out of school in the ninth grade, Davis joined the United States Marine Corps in 1961; he married Tonya Ann Tatem and had two sons with her before their divorce. Davis held a succession of jobs before, at the age of thirty, marrying Leona Coates; at their marriage in 1974, she was 17 years old. They had four children.

Although Davis apparently had a history of predatory sexual behavior, which he later admitted to in various accounts following his conviction for murder (on one occasion, he estimated that he had raped 15 women), his criminal record only in convictions for grand larceny and burglary in Kansas in 1970 and 1971, and menacing in Colorado in 1979.

In 1982, Davis was jailed on a sexual assault conviction in Colorado; during his imprisonment, he struck up a correspondence with Rebecca Fincham. The two married in 1984, whild Davis was still in prison. He was released in 1985 and he and Fincham moved to Byers, Colorado.

Murder, trial, and conviction

On July 21, 1986, Davis and Fincham kidnapped their neighbor, Virginia May, from in front of her children; they subsequently drove her to a deserted field, where Davis raped May and then shot her 14 times with a rifle.

At trial, Davis confessed to the murder, despite the advice of his attorneys; he was sentenced to death exactly one year after the murder, on July 21, 1987. The jury took only three hours to reach a verdict.

Davis alternately encouraged and suspended appeals of his death sentence, which was upheld by state courts in 1990 and federal courts in 1995. During the time he sat on Colorado's death row, Davis was able to reunite with some of his family, including his first two wives, and, according to some witnesses, experienced a dramatic spiritual conversion during his final years.

Colorado Governor Roy Romer refused to grant clemency to Davis, stating, in part: "[T]here undoubtedly has been some rehabilitation of his character and his demeanor. But I do not believe that whatever remorse or rehabilitation that is displayed here justifies reaching that extraordinary event that would cause this governor to give him clemency."


Davis's last meal before his execution was vanilla and chocolate ice cream. Shortly before his execution, Davis also requested a cigarette; as a smoking ban was in place in Colorado prisons, his request was denied. He made no final statement before being executed by lethal injection.

Davis was pronounced dead at the Colorado State Penitentiary in at 8:33 p.m. on 13 October 1997. As his death was the first execution carried out by the state of Colorado in approximately three decades, the event was subject to both intense media coverage; about 200 anti-death-penalty protesters gathered outside the prison as Davis was executed, as did a smaller group of death penalty supporters.

As of 2005, Davis remains the only prisoner executed in the state of Colorado since 1967; his execution was the 417th carried out in the United States since the death penalty was reinstated in 1976.


The Killer Inside Him

The twisted life--and lethal secrets--of Gary Davis

By Alan Prendergast -

October 16, 1997

Like hundreds of other men on death rows across America, Gary Lee Davis paid attention when Ted Bundy took the juice in Florida's electric chair in 1989.

Just hours before his execution, while the hecklers gathered outside sang "On Top of Old Sparky," Bundy granted his last interview to psychologist and evangelist James Dobson, head of Focus on the Family. The nation's most notorious serial killer told Dobson that his murderous attacks on women could be traced to his adolescent fascination with pornography.

Davis thought Bundy was pulling the good doctor's leg. "I can't see [how] looking at naked pictures would make someone kill somebody," he wrote in a letter to a friend a few weeks after Bundy's death. "That's a copout...anyone who believes that shit is pure stupid."

Whatever else he was, Davis wasn't pure stupid. True, he offered his share of copouts. In the sinking twilight of death row, condemned men find ready-made explanations for their horrendous crimes: drugs, childhood abuse, loveless marriages, low self-esteem, evil companions, the absence of God in their lives--whatever might play best in the appeals courts.

Davis's excuses ran the gamut, but his favorite scapegoat was his alcoholism. "Sober, I consider myself a real nice person," he said. "Drunk, a real live monster."

Yet in his more candid moments, Davis acknowledged that his drinking was only a catalyst for, not a cause of, his rampages--a way of unshackling the demons within. In his letter sneering at Bundy's confession, he added, "I've always had a strong driving force inside of me for some reason. Alcohol let me go for it."

Davis went for it more than he cared to admit. Like Bundy, he spent much of his adult life stalking and terrorizing young women, reveling in their pain, drowning any qualms he might have had in a sea of booze; in letters to a longtime confidant, made available to Westword after his bid for clemency failed, he estimated that he'd raped fifteen women in the course of his sorry existence. Unlike Bundy, he didn't make a habit of killing his victims--not until one horrific day in July 1986, when Davis and his third wife, Rebecca Fincham, kidnapped their neighbor, 32-year-old Virginia May. They took her to a deserted field outside of Byers, sexually assaulted her, and then, while May pleaded for her life, shot her fourteen times.

On Monday it was Davis's turn to die. He was the guest of honor at Colorado's first execution in thirty years--a long-delayed act of retribution on behalf of the grieving family of Ginny May, a source of outrage to death-penalty foes, a muted spectacle to feed the thrill-crazy media and a vengeful public (see related story, p. 20). The state's executioners strapped him onto a cross-like gurney, opened his veins and flooded his heart with potassium chloride. They put him down like a rabid dog.

What he did to Ginny May, Davis admitted, was a "sick, stupid crime," and he paid the price for it. Yet the "driving force" he wrote about isn't so easily dispatched. The sickness had been gnawing at him years before the murder, but Davis rarely spoke of it; when he did, the truth was often obscured by self-serving lies. As he wavered between wanting to die and trying to stall his execution, Davis told several versions of the slaying, sometimes blaming Fincham, sometimes himself--a routine that infuriated his lawyers and bewildered his handful of supporters.

Davis "told too many stories to too many people, and no one really knows what the truth is," Craig Truman, his trial attorney, told reporters on the day of his sentencing. "I guess I wonder if he even knows what the truth is."

But Davis knew. He even put it in writing, in letters from death row, when he figured he had nothing left to lose. Davis had several pen pals; one, a woman from Ireland, flew to Colorado for a final visit before his execution and paid for his cremation. His longest and most enduring correspondence, though, was with a Denver woman, a prison activist who plied him with questions about his family and his relationships with women. For more than ten years, from the time he arrived on death row until a few weeks before his death, Davis carried on a friendly, occasionally flirtatious and, at times, surprisingly candid dialogue with her.

The Gary Davis who emerges in these letters--lying, denying, fantasizing and sporadically confessing--is a different creature from the wan, soft-spoken ghost who appears in the videotape his lawyers sent to Governor Roy Romer in his final clemency appeal. He is smarter and more tortured than his few press interviews would suggest. He is also, despite his vile crimes, uncomfortably human.

It takes years to make a sexual predator. Davis started early, and his journey to death row was a particularly grim and nasty one. That he drew so many others into his private hell--including, finally, Ginny May, an innocent young mother who had become the object of his warped fantasies--brought him more grief and self-loathing than one might expect.

"I'm revealing things that I have kept closed up all my life," he wrote in one of his first letters from death row. "Being I'll never come face to face with you I find it easy to talk. I know some of it may seem like trash, but I've lived in that trash for years...I've always hated myself for what I've done."

I want to write you in my own words about my feelings of needing a woman without her consent. It'll be like a cleansing for me...For the first time in my life I'm going to let someone inside my mind. I've tried talking to doctors but can't really say anything to them. (10/7/87)

At a very young age I thought it was okay to take pussy if you wanted to. Most girls or women won't turn you in as long as they don't get hurt. (10/18/87)

A good man will take your thoughts first and treat you as if you were a baby...I will tell you a few do's and don'ts to a happier sex life if you like. (10/23/87)

Rapists often consider themselves experts on the topic of sex. Gary Davis was no exception. He boasted that he'd lost his virginity at age twelve, in the bed of a school chum's lusty mother.

The truth was probably much meaner, the kind of thing you don't want circulating around a prison. In a 1987 letter that he asked to be read and destroyed, as well as in conversations with psychologists during the appeals process, Davis claimed that his earliest sexual experiences came at the hands of two older stepbrothers, who used him like an inflatable doll.

Born in 1944 in Wichita, Kansas, Gary Lee Gehrer was the middle son of three; his mother remarried when Gary was eight years old. His attorneys and supporters have made passing references to his absent biological father, his "aloof" stepfather, his "strict" grandfather, but the alleged sexual abuse is rarely discussed. Possibly because of his recent reconciliation with various family members, the subject received scant mention in his appeals and was scrupulously avoided in his clemency petition.

Whether the abuse ever took place or was as severe as Davis described it remains an open question. But Davis was adamant about it. "I was molested dozens of times as a child," he wrote, and proceeded to give a graphic account of how two of his teenaged stepbrothers would return from dates with girls, make him sniff their crotches and then force him into oral and anal sex. The alleged abuse continued from the age of nine to twelve, but he insisted it had little to do with his later behavior: "I think people use that as a crutch. Everyone wants to blame what they do on other people or things."

One of his brothers has described the young Gary as a follower, a kid who "couldn't be aggressive" and "wouldn't fight nobody." Davis never told his parents about the abuse; apparently, he never confronted his stepbrothers, either. "I don't feel any anger towards them," he wrote in 1987. "A little hurt, but what can I say."

In another letter, Davis detailed his encounters with "Mary," the insatiable older woman who supposedly was his first female sexual partner. Mary ravished him, he wrote, then insisted that he bring girls to her house and take them by force while she supervised. The account smacks of sheer fantasy; Davis admitted as much in a later letter, apologizing for his "sex stories." But it's a revealing lie, a window into Davis's misogyny--instead of venting his pain at what his stepbrothers did to him, he invented an evil, sex-hungry bitch goddess who taught him how to rape.

Davis dropped out of school after the ninth grade. In 1961, at the age of seventeen, he joined the Marines. After boot camp he married his childhood sweetheart, Tonya Ann Tatem. The marriage lasted five years and produced two sons, but it began to fall apart shortly after Davis was shipped to Okinawa. He became wildly jealous of his wife, whom he suspected of cheating on him, and began to drink heavily.

His paranoia and alcoholism didn't go unnoticed in the Marines; the government wanted lean, mean killing machines, but not with his kinks. Following some loose talk about bayoneting an officer, he was diagnosed as having "homicidal tendencies" and an "emotional and unstable personality with schizoid trends" and given a medical discharge.

Back home, Davis worked as a cook, a meat-cutter and a factory grunt. He was frequently unemployed as a result of a series of auto and industrial accidents. His wife left him, taking the children with her.

He would later claim that the marriage failed because he found a job traveling around the country as a male stripper--a dubious assertion at best, although he did work briefly as part of a nightclub comedy act, playing a go-go dancer in drag. But if his supposed career as a stripper is another fantasy (it was "more or less like a dream come true," he wrote), it's not far off from the kind of exhibitionism in which Davis was soon engaging regularly.

"When I got older, early 20s, I found myself going around showing myself to women wherever I could," he wrote. "I'd show myself, and after the woman would see me, I'd find somewhere to jack off. At this time I had a beautiful wife at home. I needed this excitement in my life.

"As years went by just showing myself wasn't enough. I had to touch. I needed some pussy by force. To hear the girl or woman scream and beg as I did. Every person I raped I enjoyed."

Booze was a constant part of the equation: "The more I drank the more I raped. When I wasn't drinking, I wasn't thinking of pussy. Give me a drink and I had to have it. Finally a murder took place in Byers...Please don't hate me for this."

It's impossible to know if Davis's claim of raping fifteen women is accurate or just another grotesque boast. Doubtless he made more attempts, and probably committed more assaults, than he was ever charged with. His early targets tended to be adolescents, underage girls he could frighten into not reporting him. Prior to 1969, all of his arrests were alcohol-related--drunk driving, urinating in public. Even subsequent felony convictions in Kansas for grand larceny and embezzlement (1969) and burglary (1970) don't provide much of a picture of what he was becoming.

Yet the darkness was welling up in Davis. The need to expose himself, to force himself on women--to touch, to take, to give pain. "I've never thought about getting into trouble until it's over," he explained. "During and before it happens all I'd think about was making them do whatever I wanted...I'd just lay there with a smirk on my face yelling at them and watching them cry and beg me not to hurt them. Some of the girls were real young, some were grown women. I'd treat all of them the same. If they didn't cry or beg it would take the excitement out of it."

Afterward, he wrote, "sometimes I'd sit there and cry and want to hold the person and tell 'em how sorry I was. The next day I'd be right back out looking again."

I have been locked up one time for a rape charge. That doesn't make me a sex offender. I went to church once, but that doesn't make me a Christian. (7/27/89)

Everyone told me I'd come off death row. I've got to quit trusting people...The papers say I have about five years left, the lawyers say about two. I see the one paper is still putting rape [of Virginia May] as one of my charges. As if it's not bad enough already. (3/22/94)

In 1974, at the age of thirty, Davis married for a second time. His bride was a seventeen-year-old named Leona Coates. The relationship lasted eight years, during which Leona gave birth to four children, but it was doomed from the start. It couldn't offer the excitement Davis was looking for.

Davis would later claim that Leona was pregnant when he met her and that the marriage was a rocky one, "a big mistake." He stayed with her because "she kept shelling out kids."

"I really thought I was doing her a favor," he wrote in 1987. "Softhearted Gary."

Leona has given different versions of their marriage. After the murder of Ginny May, she told police investigators that Davis had abused her in drunken rages, tried to coerce her into a menage a trois with another woman and had once pointed a gun at her. Nine years later, in the course of Davis's federal appeals of his death sentence, she recanted much of her previous statement, saying that the gun was plastic and that Davis was a good husband and father who drank too much on the weekends. (In a 1995 interview with a California psychologist, Davis admitted to being "physically and verbally aggressive due to his alcohol consumption" in all three of his marriages.)

Davis didn't get his threesome; that would come later, as his quest for variety became increasingly bizarre and violent. Instead, he spent much of the last three years of the marriage in trouble with the law. In 1979 he lured a young female clerk out of a convenience store in Baca County on the pretext of needing help with the ice machine; once outside, he held a knife to her neck and dragged her into an alley. The woman struggled and escaped, sustaining wounds to her hand and throat.

Clearly, Davis had rape on his mind, but he wound up copping a plea to felony menacing. He spent less than a year in prison.

He was out only a matter of months when he got caught again. This time the victim was a fifteen-year-old girl, the daughter of one of Leona's friends. Davis claimed the girl reported him because he'd promised her $300 for sex, then reneged; prosecutors, though, believed the girl, who said Davis had pulled a knife on her and raped her.

Incredibly, this time Davis managed to plea-bargain his way to an eight-year sentence for sexual assault--which meant that barring bad behavior, he'd be out of prison in less than four. In hindsight, it's easy to see that he was headed for worse crimes; both assaults were the unmistakable acts of a violent predator, a man who chose the most helpless victims he could find. But in the early 1980s, programs for sex offenders were still in their infancy. The criminal-justice system tended to treat men like Davis as poor dumb shlubs who just needed to keep a sober head on their shoulders.

Corrections officers regarded Davis as a model prisoner. He kept to himself, earned special privileges, went through the motions of alcohol treatment--all the while thinking about that first drink he was going to take the moment he hit the street. And, like a lot of cons, he began to collect female pen pals.

One day another inmate gave Davis the address of Rebecca Fincham, a lonely woman who'd answered the inmate's personal ad in a newspaper. Davis began to write to her, too. Fincham wrote back, telling him about her two young daughters and her unhappy marriage to a man who drank too much. Davis sympathized and flirted. After two or three letters, she asked, "Do you miss sex?"

It was not so much a question as an invitation. Hell, yes, Davis wrote, he missed it. In short order, Fincham's letters went from coy to teasing to torrid. To call them "sexually explicit" would be an understatement; they oozed sex.

Becky Fincham talked a good game, Davis learned, and had the experience to back it up. As investigators would later discover, Fincham and her husband had been involved in wife-swapping on an Army base in West Germany--the husband claimed it was Becky's idea--and had returned to the United States with a cache of pornography and sex toys.

Davis was impressed. Here was a woman who wasn't shy or prim, a woman whose rich and varied store of fantasies could keep pace with his own. He had found his match at last. His mate.

Together they would do terrible things.

This victim in this crime was not touched by me in no way. That story I told while on the stand was to get Becky off. It was Becky's crime not mine. (7/27/89)

Davis had to revise his image of Becky Fincham after she started visiting him in prison. She was obese and seemed to be missing her eyebrows. She had scars on her breasts and arms, which she told Davis were the result of a sexual assault that occurred on an Army base in Georgia years before. He thought she was repulsive; years later, he even recalled being "scared of her because she was so overweight."

Yet Davis could not have asked for a more attentive girlfriend. She bought him a television, boots and expensive silk handkerchiefs; now divorced, she visited every weekend, bringing her daughters with her, and always provided him with spending money, ten or twenty bucks a week. Davis figured she could take care of him during his prison stretch and maybe afterward, too.

During one visit in 1984, he asked her if she would marry him. Much to his surprise, she said yes. They were married over the phone by a minister. Fincham's daughters began to call him "Daddy."

Not long after the ceremony, another inmate became interested in Fincham's thirteen-year-old daughter and asked Davis if he could write to her. Neither he nor Fincham had any objections. In fact, the ever-helpful Becky sent the boys a special treat: a photo of herself topless for Davis, a semi-nude shot of her daughter for his pal. The photos were intercepted by prison officials. Fincham was charged with sexual exploitation of a minor, and her visiting privileges were revoked.

Unable to have any physical contact, the newlyweds devised a telephone game to keep the fires burning. As Davis described it, the game involved Fincham trying to act out fantasies that he requested. Both of them were indifferent, it seems, to the fact that Davis's collect calls were subject to monitoring by prison authorities.

"Mr. Davis indicated that he would like to hear her 'give head,'" a psychologist reported after interviewing Davis about the relationship. "Ms. Fincham then brought a male named Jay into the house and did this, while the telephone receiver was off the hook so that Mr. Davis could hear. Mr. Davis reports that he had never met a woman who would say and do these kinds of things, and that he found this very amazing."

According to Davis, Fincham also described imaginary scenarios to him over the phone in lurid detail: picking up and seducing a man who resembled Davis; picking up a woman at a gay bar; having sex with a friend while the friend's husband watched; even being raped by "a male who resembled a prison guard." The fantasies were at the core of what they had together--more satisfactory, certainly, than the physical relationship they embarked upon when Davis emerged from prison in 1985.

His release posed a number of problems for the couple. Fincham had received three years' probation on the child-exploitation charge. In order for a rapist like Davis to parole to her residence, she had to send her daughters out of state to stay with her parents. And since both she and Davis were under court supervision, they had to steer clear of his old habits, such as drinking and pulling knives on underaged girls.

For a few weeks it looked like things might work out. The couple landed a job managing an Aurora apartment house, and Davis kept a lid on his boozing. But he couldn't hide his physical aversion to Fincham, and soon both he and Fincham were drinking and trolling for new kicks.

"I thought when I married Becky that I could overlook her being so fat," he later wrote. "She had a place for me to come out to and I knew I would not be lonely. But I was wrong, I was lonely, even with her. I took up drinking again to fill the empty void in my life. Also I drank to have the stomach to touch that fat broad."

Drunk, Davis had a perfect excuse for failing in his matrimonial duties: "Yes, I was impotent while drinking and around Becky towards our last months together. To be blunt, it was damn hard to even get a hard-on when Becky would give me a blow job. I just didn't have any feelings for her."

It was a situation worthy of a Jim Thompson novel. In prison Davis had met the woman of his dreams, but now that he was on the outside, he found himself trapped in a beer-soaked nightmare with a "fat broad" he couldn't stand. Desperate to live out the fantasies they'd promised each other for so long, they propositioned other residents of the apartment complex. Although they were usually turned down, on occasion Fincham would engage in sex with a female neighbor or the neighbor's husband while Davis watched.

It wasn't enough. Davis's attention was drawn to another female tenant, whom he found much more attractive than his wife or her playmate. He told a buddy that he wanted to drug the woman and rape her.

Fincham became suspicious of her husband, demanding a frequent accounting of his activities and whereabouts. She also started fooling around with his hair, dyeing it different colors. "I think it made her feel like she was out with someone different all the time," Davis mused.

After six months the Davises had worn out their welcome at the apartment house. They were accused of ripping off tenants, taking money for services and repairs that were never provided. Their constant lying, drinking and sex talk were generating other complaints. So Becky answered an ad for a ranch hand on the eastern plains, faking a resume that claimed the couple had been married sixteen years and had extensive farm experience.

In February 1986 they got the job and moved to Byers. The community was small, the prospects for wife-swapping quite bleak. As a rule, Davis had to go into town if he wanted to ogle other women. Fincham often came with him. Sometimes, Davis would later say, they talked about kidnapping women and turning them into sex slaves.

In May they went to a discount store in Fort Morgan and bought a .22 semi-automatic rifle. The purchase was a violation of Davis's parole, but he didn't think anyone would notice or care. They didn't.

If anyone asked him what the rifle was for, Davis had his answer ready. It was for all the snakes around his house.

I think Rebecca could have done a lot more than just shoot someone. You would have had to of seen her during the crime. She had so much jealous anger built up that I didn't even know who she was. (11/10/87)

I would get crazy thoughts in my head and my friend would give me the courage to live them out. (From "My Friend," an essay about alcoholism that Davis wrote while on death row.)

Gary Davis drank heavily in the weeks leading up to the murder. Bloated and bleary-eyed, he and Becky cruised around Fort Morgan, searching for their ideal "playmate." But as he saw it, the best prospects were located close to home, on the ranch adjacent to the property where the Davises lived. He talked often about his slender, attractive neighbors, Virginia May and her sister-in-law, Sue MacLennan--talk that made Becky furious.

A ranch hand would later testify that Davis made coarse remarks about May when they repaired fences close to her property. One time, while relieving himself, he even waved his genitals in the direction of her home, saying, "Come on, Virginia, baby. I'm here. Come to me."

The oldest in a close-knit ranch family, May was just weeks shy of her 34th birthday. She had a husband, a young son and daughter and a busy life of her own. She had no reason to suspect that she'd become a featured player in the squalid, pornographic movie playing in Davis's head. She barely knew Gary Davis.

As it turned out, Fincham and Davis targeted May only after two other attempts failed. On July 18, 1986, a woman named Tammy Beauprez, who lived on a farm south of Wiggins, was visited by a couple in a car bearing Kansas plates. While the woman driver asked directions to Byers, the man got out and tried to move behind Beauprez. When Beauprez's husband appeared, the man got back in the car and the couple took off. Beauprez later identified the odd visitors as Becky and Gary Davis.

Three days later--July 21, the last day of Davis's parole--Sue MacLennan received a phone call from Becky, who wanted to know if her husband was home. When MacLennan said he wasn't, Becky offered to drop off some used clothes for MacLennan's children. There were no clothes, but shortly after the call the Davises showed up at MacLennan's house with the .22 rifle in their car. Seeing a male ranch hand outside the house, Becky stayed only long enough for a quick iced tea. Her husband never got out of the car.

Early that evening the Davises showed up at Virginia May's door. May was expecting them; Becky had called her, too, offering children's clothes. She came out of the house with her four-year-old, Krista. Becky lured her to a tool shed with a request to borrow some wire stretchers. When they emerged, Gary Davis punched May in the face and dragged her into the car, while Becky shooed Krista into the house.

What happened next has been recounted many times, but never with absolute certainty. Davis and Fincham have made so many conflicting statements about their crime that none can be accepted as gospel. In one version, Davis hauls May out of the car, takes her out of sight and goes berserk while a helpless, terrified Fincham sits in the car, oblivious even to the shooting because she keeps the windows rolled up. In another, Davis is painted as a confused, passive accomplice while Fincham, in a jealous rage, barks orders and commits most of the violence.

The most credible version, based on statements Davis made to his own attorneys and physical evidence presented in court, is a duet of atrocity. May was stripped and dragged out of the car with a rope around her neck. Davis attempted, but may have failed, to have sex with her. (Despite his testimony in court that he assaulted May repeatedly, for years afterward he insisted he did not "rape" her--which could be true, but not, it seems, for lack of trying.) May was then forced to engage in oral sex with Fincham.

Throughout it all May fought and pleaded for her life. She offered the couple a thousand dollars to let her go. But both Davis and Fincham must have known where this was headed long before they pulled up at May's house. Davis struck her in the head with the rifle butt, fracturing her skull. She still had the strength to raise her hands in a final effort to defend herself as she was shot fourteen times with hollow-point bullets.

Defense lawyers have speculated that Davis and Fincham took turns firing the rifle, partners to the end. A psychologist retained by Davis's appeals team suggested that the multiple gunshot wounds--nine to the head, four to the torso, one to the groin--may have been the work of an enraged woman seeking not only to kill but to disfigure her rival. But Davis has said that he, and he alone, did the shooting. He admitted it in his first, fragmentary "confession" to police and in his final televised apology to May's family, aired a few weeks ago.

Yet Fincham was hardly an innocent bystander. It seems unlikely either one could have been capable of such depravity alone; together they fueled each other's fantasies, goaded each other into the abyss. Investigators suspected that much of the sexual paraphernalia found at their residence after the crime--not just garden-variety smut but glossy magazines celebrating torture and pain, as well as a collection of dildos and butt plugs--belonged to Fincham, who was not above writing long, raunchy letters to her own daughter detailing her efforts to keep "Daddy" interested in her. Davis would later claim that she even offered him her fifteen-year-old offspring as a possible sexual partner, but he declined.

The two were instant suspects in the disappearance of Ginny May; when May's husband came home and found the children alone, they told him their mother was gone because "Becky took her." As night fell, the police and frantic family members attempted to question the Davises about May's whereabouts. Although Davis supposedly had consumed a case of beer that day (and would eventually blame convenient alcoholic blackouts for his failure to recall details of the crime), a sheriff's deputy thought he seemed quite sober. As she always did, Becky did most of the talking for both of them.

"We want to do everything we can to help you find your daughter," she told Rod MacLennan, Ginny May's father. "I know how you feel. I was once raped myself."

Later, at the Strasburg sheriff's substation, Davis insisted on being allowed to talk to Fincham before he would make any statements about May. The two were allowed a brief conversation in a small library at the station.

"The ball game's over, babe," Davis said.
"Don't tell 'em shit," Fincham replied. "We'll get a lawyer."

I hope Bob Grant don't tell everyone he won my case. I won it for him. (1/20/88)

I have already contacted a lawyer about putting a stop to my appeals. It has NOTHING to do with being chicken. I don't think a chicken could do it. Sitting in this little square hole for a decade isn't my bag of tea. I was raised in the outdoors and this is really getting to me. Even if I had a life term, big deal...I don't want a natural life in here...This is not a death wish it's what I feel best for myself. (5/24/90)

Trying to get executed a few years ago put me about three years ahead of Frank [Rodriguez]. You know one good thing about being executed first is, the needle would be clean. (2/15/94)

On July 21, 1987, a year to the day after the murder of Ginny May, Davis found out he was headed for death row. It took the jury only three hours to find him guilty of kidnapping and murder. It took another three hours to sentence him to death.

The verdict was no surprise. Two days earlier, Davis had sabotaged his own defense counsel by taking the stand and insisting on taking all the blame for the crime. Attorney Craig Truman had tried to save him from the death penalty by arguing that Rebecca Fincham, who'd already been convicted of murder and was facing a life sentence, was just as culpable as Davis, so Davis should receive life, too.

Davis, though, was the prosecution's best witness. He'd received a ten-page letter from Becky, who'd divorced him, urging him to "do the right thing." He decided that meant meekly answering "Yes, sir" every time Adams County prosecutor Bob Grant asked him if he'd kidnapped, raped and murdered May. Truman's frustration with his client was evident in his closing remarks.

"There are times in this case when I hate Gary Davis," he said. "Gary Davis has lied to me...In a lot of respects he has set me up for failure."

Davis had told Truman several different tales about his role in the slaying. In a letter to a psychiatrist seeking an evaluation of Davis, written a few weeks before the trial, Truman stated that he believed his client "fits the old sexual psychopath standard in that he is very twisted sexually... There is no question as to 'who done it.' Mr. Davis is tied up in this thing far beyond that which he is occasionally willing to admit. He has admitted the killing and most of the sexual acts to me."

In a packed courtroom, he admitted it again, sealing his fate. In fact, Davis was in a tremendous hurry to end his life. Shortly after his trial, he wrote a letter to Governor Romer, urging an immediate decision on clemency in his case rather than waiting for the automatic appeals process to run its course. "If you decide death," he asked, "can't we please get it done?"

His impatience probably had less to do with any pangs of remorse than with an old con's weariness at being locked up with himself. His early letters from death row exude a steady stream of self-pity and disgust, but despite his testimony, he was still quick to deny murdering Ginny May. Death was simpler than coming to terms with the devastation he'd caused.

Later, Davis would come to see his yearning for death as another kind of copout. For the first few years he was on death row, he wrote, he was "dry" but not yet sober--and heavily medicated at one point with Xanax, an anti-anxiety drug.

"He told me he wasn't drinking like an alcoholic, but he was still thinking like one," says Vicki Mandell-King, the federal public defender who worked closely with Davis on his last three years of appeals. "Then he began to wake up."

The turning point came in 1990, after the Colorado Supreme Court affirmed his sentence. That summer Davis dismissed his lawyer and directed his new one, Dennis Hartley, not to file any more appeals. Hartley argued vigorously with him, pointing out that there were several avenues still worth exploring, such as the issue of ineffective counsel at trial. Truman had presented only two witnesses during the penalty phase. Hartley believed that the jury should have heard more about various "mitigating factors"--including Davis's alcoholism, the possible mental effects of a bad car accident in the 1960s, his "passive-aggressive personality" and Fincham's supposedly "dominant" role in the homicide--before imposing the death penalty. (Truman assisted in this appeal, but the federal courts ruled that the veteran defense attorney had done the best that he could, given his client's refusal to cooperate with him.)

Davis relented and gave Hartley the green light, but only after a call from one of his daughters, who reportedly told him that he wouldn't see his grandchild unless he kept the appeals going. In the course of researching the appeals, Hartley was able to bring Davis back into contact with several estranged family members, including his first two wives and their children, and that gave him further impetus to live.

Of course, Ginny May didn't have the luxury of choosing to live, even for a few more moments; but the decision was surprisingly difficult for Davis. Death can seem a blessing, he noted in his clemency interview, compared to life in the solitary confines of a maximum-security prison: "To me, that's a worse sentence than the death penalty."

In 1993 Davis was moved into the state's new supermax, the Colorado State Penitentiary. Designed to hold unruly inmates in total lockdown 23 hours a day, CSP has also become the home of all five of the state's murderers slated for execution. Caged in an eighty-square-foot cell, with few privileges and no opportunity to breathe fresh air, Davis wasn't exactly living it up.

"Been over here one year today," he wrote in the fall of 1994. "Seems like ten. I've got a lot of years to go in this hole...Some days I wish I could lay down and die. I think that's what the prison wants us to do. They loved it in 1990 when I tried to get executed. You should have seen how nice they treated me back then. To hell with them."

After his federal appeals failed, he probably could have delayed his fate by making another run at the state courts, but the prospect of stretching out his stay in CSP was unthinkable. "I want out of this place either by walking or in a box," he declared in 1995. "Lately I've started to pace like the animals in a zoo. People are sent to this building for short-term punishment, not long-term housing. They break your spirit here so they can control you."

He added, as if an afterthought, "Hell, I've been broken long before I came here."

I received over a dozen letters today from Colorado Christians saying how much they want me dead. (7/20/95)

By all accounts, Davis's last years were suffused with bitter ironies. He finally emerged from his alcoholic fog, only to be plagued by heart troubles and other health problems. (Prison officials, he joked, worked hard to save him so they could kill him.) After he lost forty pounds and his vision blurred, he was diagnosed as diabetic.

He reunited with members of his family, just in time to lose some of them for good. He received news of the death of his father and his favorite brother, as well as a phone call from a son who was in a Texas prison for child abuse. A few months ago came the worst blow of all, the death of a 24-year-old daughter from a brain tumor. "I have never had pain before like that when they said my daughter is dying," he wrote last spring; in his clemency appeal to Romer, he said the loss had finally brought home to him what he'd done to Ginny May's family.

He made a public apology for his crimes, admitting full responsibility for the murder--but that was rebuffed as too little, too late. Although Jim Sunderland, the Jesuit priest and anti-death-penalty advocate who'd counseled Davis for years, insisted that he'd undergone a "very genuine and thorough" spiritual conversion, those who wanted him dead couldn't help but dismiss his claims of having discovered his conscience as a cynical bid for sympathy.

Yet those who saw most of Davis in his final months tended to be impressed by him. He had changed, they say. No longer whining or filling the air with lies, he talked earnestly about life and death. He expressed more concern about how his lawyers were handling their constant defeats than about his own fate; he took solace in the fact that, as the execution date approached, the prison staff was treating him with dignity and respect--"like a human being," he said. He seemed focused on dying a good death.

"Gary, it sounds like these last few years have been a prayer for forgiveness," attorney Vicki Mandell-King told him.

"No," Davis told her, "they've been the answer to my prayers."

He was no longer an eager volunteer for the death penalty; always a follower, he was more like a resigned conscript than anything else. He did agree to make one last videotaped bid for clemency, on the theory that he still might be able to "help people" if he were allowed to live, but it was an oddly low-key appeal.

Shackled and meek, he spoke blandly of the mess he'd made of things--"It's hurt a whole bunch of people, this crime. A whole bunch. On both sides"--and choked up a bit at mention of the recent death of his daughter. When asked what he would do if the governor spared his life, he spoke vaguely about being a cook and spending time with his family, as if the question were too hypothetical to take seriously.

He wasn't his own best advocate. But then, it was important to him that he not be seen as a coward, the kind of man who'd be caught on videotape begging for life--or death. When he found out that Romer had turned him down, he couldn't even be outraged. "I kind of agree with him," he told Mandell-King. "How I've changed does not make up for what I've done."

Nothing could. He'd taken too much from too many people. By his own lights, he poured the poison in his own veins the moment he set out with Becky Fincham to make their wretched fantasy come true, and nothing he'd done since could take that moment back. His final victim was himself.

The day after he learned that Romer had denied him clemency, Davis found time to write a final letter to his friend:

Well, the bomb has blown up on my life. Can't really believe it's going to happen. If I forget later down the road, I want to thank you for your support...I need to close this and get started on a stack of mail six inches deep. I can't say goodbye, so I'll say see you later.

A friend,



Colorado Court of Appeals, Div. III.

No. 87CA1248.


799 P.2d 419 (1990)

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Rebecca FINCHAM, a/k/a Rebecca Fincham Davis, Defendant-Appellant.

May 24, 1990

Rehearing Denied July 5, 1990.

Certiorari Denied November 13, 1990.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Hope P. McGowan, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Barbara S. Blackman, Chief Appellate Deputy State Public Defender, Denver, for defendant-appellant

Opinion by Judge MARQUEZ.

Defendant, Rebecca Fincham, appeals the judgment of conviction entered upon jury verdicts finding her guilty of first degree murder after deliberation, first degree felony murder, conspiracy to commit first degree murder after deliberation, second degree kidnapping, conspiracy to commit second degree kidnapping, and accessory to crime. We affirm in part, vacate in part, and remand for further proceedings.

Defendant and her former husband, Gary Davis, were convicted and sentenced in separate trials in the kidnapping and murder of Virginia May. See People v. Davis,794 P.2d 159 (Colo.1990). The record reflects that defendant was with Gary Davis during the time he took the victim from her home to the location where he eventually shot her several times. At issue at trial and on appeal are the existence and degree of defendant's complicity in these acts.


Defendant contends that the admission into evidence of the statements of Gary Davis, who did not testify at her trial, violated her constitutional right of confrontation. Davis' statements, which were made to members of the sheriff's office, had been redacted to omit references to defendant. We conclude that any error was harmless beyond a reasonable doubt.

Whether a defendant's right to confront the witnesses against him or her has been violated requires a two-step analysis. First, the People must establish that the declarant is "unavailable." Second, the

[ 799 P.2d 422 ]

statement must bear indicia of reliability sufficient to make it trustworthy without subjecting the declarant to cross-examination. See Nunez v. People,737 P.2d 422 (Colo.1987); People v. Dement,661 P.2d 675 (Colo.1983).

The trial court found that, by virtue of having asserted his Fifth Amendment privilege against self-incrimination, Gary Davis, for purposes of CRE 804, was "unavailable." On appeal, this finding is not disputed, and therefore, for purposes of a Confrontation Clause analysis, we also conclude that Gary Davis was "unavailable." See United States v. Inadi,475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986); Douglas v. Alabama,380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); People v. Rosenthal,670 P.2d 1254 (Colo.App.1983).

After determining that the declarant was "unavailable," the trial court should have inquired whether his statements contained sufficient "indicia of reliability" to overcome their presumptive unreliability. People v. Drake,785 P.2d 1253 (1989). Instead, the trial court ruled only that the statements "having to do with [Gary] Davis himself" would be admissible since they were statements against his penal interest. The statement was redacted to omit references to the defendant. However, no express finding of reliability was made by the court with respect to Gary Davis' confession.

While it is true that reliability may be inferred where the evidence falls within a firmly rooted hearsay exception, People v. Dement, supra, a declaration against penal interest is too large a class for meaningful Confrontation Clause analysis. Lee v. Illinois,476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); see also People v. Drake, supra (trial court should make reliability finding even though statement was admissible under CRE 804(b)(3) as against his interest). However, we conclude that even if the absence of appropriate findings concerning the reliability of Davis' statements make their admission into evidence erroneous, such error was harmless beyond a reasonable doubt.

Here, defendant chose to testify at trial, and she admitted that she was present when the victim was placed in the car and that she drove the vehicle to the location where the victim's body was later found. Thus, by her own testimony, defendant related many of the same facts that were contained in Gary Davis' statement. And, references to defendant were excised from Gary Davis' statement. See People v. Rosenthal, supra. Accordingly, we are persuaded that any error in admitting the statement was harmless beyond a reasonable doubt. Cf. People v. Dement, supra; People v. Smith,790 P.2d 862 (Colo.App. 1989) (reversible error occurred in admission of two complicitors' statements that did not "interlock" on extent of defendant's culpability).


Defendant next contends that the trial court erred in refusing to permit defense witnesses to testify regarding her dependent personality as it related to culpable mental states of the offenses charged and to available defenses. We disagree.

Defendant sought to present the testimony of two psychiatrists tending to establish that she exhibited a dependent personality disorder. The trial court disallowed the evidence on the ground that defendant had failed to raise the affirmative defense of impaired mental condition, which must be raised at arraignment or, upon good cause shown, at any time prior to trial. Section 16-8-103.5, C.R.S. (1986 Repl. Vol. 8A); People v. Low,732 P.2d 622 (Colo.1987). We agree with the trial court that the testimony was inadmissible.

Defendant asserts that the evidence was introduced not to prove an impaired mental condition, but "to establish that she lacked the required culpable mental state due to her tendency to yield to persons perceived as in charge or to only weakly resist their actions." No offer of proof was given as to the distinction, and we are not persuaded by defendant's argument that this is different from the affirmative defense of impaired mental condition.

[ 799 P.2d 423 ]

Section 16-8-102(2.7), C.R.S. (1986 Repl. Vol. 8A) defines impaired mental condition as:

"a condition of mind, caused by mental disease or defect, which does not constitute insanity but, nevertheless, prevents the person from forming a culpable mental state which is an essential element of a crime charged." (emphasis added)

Despite defendant's arguments to the contrary, the evidence sought to be introduced was evidence of mental condition rather than state of mind. Inasmuch as defendant waived this defense, her arguments for admissibility under the rules of evidence are also without merit.


Defendant next argues that the trial court erred in admitting hearsay statements of the victim's children. We disagree.

Courts look primarily to the effect of a particular event upon the declarant and, if satisfied that the event was sufficient to cause adequate excitement, the inquiry is ended. The passage of time, though significant, is not conclusive on the question of admissibility, since the element of trustworthiness in the case of young children finds its source primarily in the lack of capacity to fabricate, rather than the lack of time to fabricate. Nor does the fact that some general questions preceded the hearsay declarations destroy their character as excited utterances. People in Interest of O.E.P.,654 P.2d 312 (Colo.1982).

Here, there is no question that the children's statements concerned a sufficiently startling event, the violent kidnapping of their mother from their home. The statements were made less than two hours after the event, and in response only to very general questions by their father. According to the father, upon making the statements, one of the children started to cry.

Moreover, the substance of the children's statements was corroborated by the defendant's own testimony at trial placing her at the victim's ranch with Gary Davis at the time of the abduction.

Under all the circumstances, we find no error in the admission of the children's statements. The trial court is in the preferred position to determine whether a particular event causes sufficient excitement in a declarant to render a statement admissible, People in Interest of O.E.P., supra, and we are satisfied that the trial court did not err in admitting the children's statements to their father. See CRE 803(2).


Defendant next contends that the trial court abused its discretion in failing to declare a mistrial or preclude further testimony when an advisory witness twice referred to inadmissible evidence. We disagree.

Although a trial court has broad discretion to declare a mistrial when it appears that because of irregularities in the proceeding either party will not receive a fair trial, People v. Erickson, 194 Colo. 557, 574 P.2d 504 (1978), declaration of a mistrial constitutes a drastic action and is warranted only when the prejudice to the accused is too substantial to be remedied by other means. People v. Abbott,690 P.2d 1263 (Colo.1984).

The advisory witness' testimony that he went with the victim's children to the tool shed and "had them describe what happened" is not hearsay and is not at all inculpatory of defendant, and therefore, a finding of prejudice may not be based thereon.

As to the witness' testimony that in searching defendant's bedroom he noticed "there was a lot of sexual paraphernalia and magazines," the trial court found for the record that the witness' violation of the court's prior orders limiting certain testimony had not been aggravated or intentional and offered to give a cautionary instruction to the jury. The defense rejected that offer. The court also stated that it would consider defendant's request to prohibit the witness from testifying further if

[ 799 P.2d 424 ]

another violation occurred, and cautioned the witness not to mention sexual items.

Under all of the circumstances, we conclude that the two statements by the witness did not amount to prejudice against defendant such as would warrant reversing the trial court's denial of her motion for a mistrial. See People v. Abbott, supra.


We also reject defendant's contention that prejudice arose by virtue of the prosecutor's comments during his closing argument. The defendant did not object to this argument, and since the jury is presumed to have followed the court's instruction, the defendant has failed to make any showing of unfair prejudice resulting from the prosecutor's comments. See People v. Smith,620 P.2d 232 (Colo.1980).


Defendant also contends that the trial court erred in rejecting the pattern jury instruction on affirmative defenses. We determine that, considered as a whole, the court's instructions did not constitute reversible error.

The general instruction on affirmative defenses tendered by defendant quoted the language of COLJI-Crim. No. 7:01 (1983), which provides:

"The evidence presented in this case has raised an affirmative defense.

The prosecution has the burden of proving the guilt of the defendant to your satisfaction beyond a reasonable doubt as to the affirmative defense, as well as to all the elements of the crime charged.

After considering the evidence concerning the affirmative defense, with all the other evidence in this case, if you are not convinced beyond a reasonable doubt of the defendant's guilt, you must return a verdict of not guilty." (emphasis added)

The trial court rejected defendant's proposed instruction, stating:

"The instruction ... makes comment on the evidence, an affirmative defense has been presented by evidence. Court feels this is an issue for the jury to determine." (emphasis added)

Instead, the court instructed the jury as follows:

"If you find that the evidence presented in this case has raised an affirmative defense, the prosecution has the burden of proving the guilt of the defendant to your satisfaction beyond a reasonable doubt as to the affirmative defense...." (emphasis added)

The court's instruction otherwise was identical to the pattern instruction.

We agree with defendant's assertion that the threshold determination of whether an affirmative defense has been raised by the evidence must be made by the court and not the jury. An affirmative defense basically admits the doing of the act charged but seeks to justify, excuse, or mitigate it. People v. Huckleberry,768 P.2d 1235 (Colo.1989).

Defendant argues that the instruction deprived her of due process and trial by jury, since the prosecution was relieved of its burden of proving beyond a reasonable doubt that the affirmative defenses did not exist. We agree that the instruction given by the trial court should not have been given and that the court should have used the pattern instruction. See Wilcox v. People, 152 Colo. 173, 380 P.2d 912 (1963), cert. denied, 376 U.S. 931, 84 S.Ct. 702, 11 L.Ed.2d 652 (1964). Nevertheless, we conclude that the court's instructions, as a whole, did not constitute reversible error.

The propriety of any one instruction must be determined by considering all of the instructions as a whole, and, absent a contrary showing, it is presumed that the jury understood the instructions and heeded them. People v. Bogle,743 P.2d 56 (Colo.App.1987).

The purpose of the instruction at issue is to inform the jury, when an affirmative defense has been raised, that the prosecution has the burden of proving the guilt of the defendant beyond a reasonable doubt as to the affirmative defense raised. See § 18-1-407(2), C.R.S. (1986 Repl. Vol. 8B).

[ 799 P.2d 425 ]

Here, in addition to several instructions on various affirmative defenses, the jury was specifically instructed on the presumption of innocence and the prosecution's burden of proving all of the elements beyond a reasonable doubt. It was instructed repeatedly that it must find defendant guilty as to every element beyond a reasonable doubt in order to find her guilty. Among the elements of each crime charged were included, as an element, the words "without the affirmative defense in instruction number __." Thus, as to every crime charged, the jury was instructed in essence that the prosecution must prove beyond a reasonable doubt that defendant was "without the affirmative defense." In our view, the instructions as a whole adequately informed the jury that the prosecution must disprove the affirmative defense beyond a reasonable doubt.

Moreover, the court also instructed the jury, in connection with the lesser included offense instructions, that the law never imposed upon a defendant in a criminal case the burden of producing any evidence.

Hence, reading all the instructions together, we conclude that they did not relieve the prosecution of its burden of proof on the affirmative defenses.


Defendant contends lastly that the sentences imposed must be vacated and the case remanded for resentencing. Except as to the judgment of conviction for felony murder, we find no error.

We reject defendant's argument that the consecutive thirty-year sentence for conspiracy should be vacated. If a defendant is convicted of multiple offenses, the trial court's traditional discretion to impose either consecutive or concurrent sentences, depending upon the gravity of the accused's criminal conduct, remains intact under § 18-1-408, C.R.S. (1986 Repl. Vol. 8B), if the multiple counts are not supported by identical evidence. Oureshi v. District Court,727 P.2d 45 (Colo.1986). Our review of the record reveals evidence supportive of the conspiracy which is distinct from evidence of the underlying crimes. The record also reflects sufficient aggravating conduct by the defendant. Thus, we find no abuse of discretion in this regard.

Defendant also argues that only one life sentence could have been imposed, and only one conviction entered, for the three charges of premeditated murder, felony murder, and second degree kidnapping.

The jury found defendant guilty of both the first degree murder counts and second degree kidnapping, the felony underlying the felony murder count. The trial court entered judgments of conviction on each count and determined that the two murder counts "merge into a single sentence of life." On the kidnapping count, the court sentenced defendant to a term of sixteen years, stating that:

"since one of the underlying crimes is that of Felony Murder, and that part of that Felony Murder is the Kidnapping, that it is necessary under the law that that sentence be a concurrent sentence."

We conclude that this matter must be remanded for resentencing. Only one judgment of conviction may be imposed for first degree murder when there is only one victim. People v. Lowe,660 P.2d 1261 (Colo.1983). Also, the conviction of the defendant for the felony murder, predicated as it is on the kidnapping, precludes her simultaneous conviction of the lesser included offense of kidnapping. See People v. Bartowsheski,661 P.2d 235 (Colo.1983).

However, the People correctly argue that since the kidnapping is not a lesser included offense of first degree murder after deliberation, the defendant could be simultaneously convicted of those two offenses. See People v. Bartowsheski, supra. Hence, we determine that the trial court should have entered judgments of conviction for first degree murder after deliberation and for second degree kidnapping, but not also for first degree felony murder. See People v. Saathoff,790 P.2d 804 (Colo. 1990); People v. Bartowsheski, supra.

Defendant's other contentions are without merit.

[ 799 P.2d 426 ]

The judgments of conviction and sentences for first degree murder after deliberation, second degree kidnapping, conspiracy to commit first degree murder after deliberation, conspiracy to commit second degree kidnapping, and accessory to crime are affirmed. The judgment of conviction for first degree felony murder is vacated, and the cause is remanded for resentencing and amendment of the mittimus, consistent with the views expressed herein.




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