concluding that a defendant’s statements were voluntary, in part, because “he did not ask to . . . speak with counsel, even after he was informed orally and in writing, through his Miranda advisement, that he had the right to do so”
How later courts described this case
- concluding that a defendant’s statements were voluntary, in part, because “he did not ask to . . . speak with counsel, even after he was informed orally and in writing, through his Miranda advisement, that he had the right to do so”
Written by the judges who cited it.
The opinion
JUDGE WEBB
concurring in part and dissenting in part.
T 119 This case involves an attempted invasion of defendant's home by armed intruders. When those intruders forced open his front door, seven members of his immediate family were also present. He repelled the invasion by firing a handgun. Yet, in upholding the special offender sentence enhancer for marijuana distribution involving use or possession of a deadly weapon, the majority concludes that the trial court did not err in rejecting defendant's tendered instruction on his constitutional right to use a gun to defend his family and himself.
120 In my view, the absence of such an instruction created a reasonable possibility the jury had to conclude defendant's use of the gun in self-defense was part of the charged marijuana distribution. If so, the jury would have improperly found the sentence enhancer based only on this constitutionally protected use. Therefore, I respectfully dissent from that portion of the majority's opinion.
121 Where the trial court rejects a defendant's tendered instructions, the harmless error standard applies. People v. Witek, 97 P.3d 240, 245 (Colo.App.2004). "Under the harmless error rule, an error in a criminal trial will be disregarded if there is not a reasonable possibility that the error contributed to the defendant's conviction." Tevlin v. People, 715 P.2d 338, 342 (Colo.1986). Thus, "[the proper inquiry in determining a harmless error question is whether the error substantially influenced the verdict or affected the fairness of the trial proceedings." People v. Robinson, 874 P.2d 453, 458 (Colo. App.1993).
122 To begin, the Colorado Constitution enumerates "defending their lives," among "essential and inalienable rights" of "/a/ll persons." Colo. Const. art. II, § 3 (emphasis added); see Vigil v. People, 143 Colo. 328, 333-34 , 353 P.2d 82, 85 (1960) 1 As well, it recognizes a person's right "to keep and bear arms in defense of his home, person and property." Colo. Const. art. II, § 18; see City of Lakewood v. Pillow, 180 Colo. 20, 28 , 501 P.2d 744, 745 (1972) (invalidating as overly broad a municipal ordinance that "makes it unlawful for a person to possess a firearm in a vehicle or in a place of business for the purpose of self-defense").
123 Because the federal constitution does not expressly enumerate a right of self-de *901 fense and the wording of article II, section 18 is broader than that of the Second Amendment, ("the right of the people to keep and bear Arms[] shall not be infringed"), the underlying right is broader too, See People v. McNeese, 892 P.2d 304, 323 (Colo.1995) ("We noted that, unlike the more narrow constitutional provisions of other states that 'merely guarantee the collective or "state's right" ... for maintenance of the militia, the right created by our constitution was intended to allow citizens 'to bear arms for purposes of self-defense and the defense of property."" (quoting Robertson v. City and Cnty. of Denver, 874 P.2d 325 , 827-28 n. 6 (Colo.1994))). Compare People v. DeWitt, 275 P.3d 728, 788 (Colo. App.2011) (under the Colorado Constitution, "a defendant charged with [possession of a weapon by a previous offender] may raise as an affirmative defense that he or she possessed a weapon for the constitutionally protected purpose of defending his or her home, person, or property"), and People v. Carbajal, 2012 COA 34 , ¶ 11, - P.3d - (same) (cert. granted Oct. 29, 2012), with United States v. Barton, 633 F.3d 168 (3d Cir.2011) (federal statute prohibiting the possession of firearms by a convicted felon did not violate the Second Amendment, either facially or as applied to defendant).
The sentence enhancer requires a finding that a defendant "used, displayed, possessed, or had available for use a deadly weapon." Ch. 71, see. 1, § 18-18-407(10)(8), 1992 Colo. Sess. Laws 362 . Such a determination constitutes an extraordinary aggravating circumstance, and the court must "sentence the defendant to the department of corrections for a term of at least the minimum term of years within the presumptive range for a class 2 felony but not more than twice the maximum term of years within the presumptive range for a class 2 felony." Id.
{ 125 The sentence enhancer has been held not to violate a defendant's state constitution, al right to possess arms for self-defense because section 18-18-407(1)(f) requires the prosecution "to show some nexus between the deadly weapon and the drug offense upon which the enhanced sentence is based." People v. Atencio, 878 P.2d 147, 150 (Colo.App. 1994). But Atercio-a pure possession case-leaves unanswered the more nuanced question that this case presents: whether, without the tendered instruction, the jury could have found the sentence enhancer applied based solely on defendant's use of the gun to defend his family and himself.
11126 Here, consistent with the statute, the sentence enhancer instruction encompassed "use," "possession," and "have available." Similarly, the corresponding interrogatory read: "On November 26, 2007, did the defendant use, possess, or have available for use a deadly gun during the commission of and in connection with the crime of Possession With Intent to Distribute Marihuana." But these alternative bases exposed defendant to a special offender finding because he used a gun only to protect his family and himself from the intruders.
127 True, the prosecution presented evidence to prove that defendant possessed or had available the gun as part of his marijuana distribution out of his house. Yet, the prosecution's evidence showed that defendant used the gun only once-in a cireumstance of clear self-defense. And because the charges against defendant included child abuse resulting in death, the jury heard extensive evidence of that use in the shoot-out with the intruders.
1 128 Specifically, the prosecution's theory was that by selling drugs out of his home, defendant recklessly placed his daughter in cireumstances that threatened her life and resulted in her death. See §§ 18-6-401(1)(a), (7T)(a)(T), C.R.S8.2018. In attempting-albeit unsuccessfully-to convince the jury of defendant's recklessness, the prosecution offered evidence and testimony from multiple witnesses of how many rounds had been fired, by whom, and in what directions. The prosecution discussed this evidence at length in closing argument; it mentioned only twiee-and briefly-defendant's possession of the gun as the basis for the jury to find him a special offender. Based on this evidence and argument, the jury could have concluded that the sentence enhancer had been proven because defendant used the gun in self-defense.
1129 Such a conclusion would punish defendant for exercising his constitutional right of self-defense. But defendant's tendered - instruction-or a reasonable derivation of it, which the trial court has an obligation to *902 create, see, e.g., People v. Nunez, 841 P.2d 261, 265 (Colo.1992) ("[A] trial court has an affirmative obligation to cooperate with counsel to either correct the tendered theory of the case instruction or to incorporate the substance of such in an instruction drafted by the court.")-would have prevented the jury from finding the sentence enhancer based solely on use of the gun in self-de- 2 Thus, the absence of an instruction on defendant's right to use his gun in self-defense cannot be said to be harmless because of this "reasonable possibility that the error contributed to the defendant's conviction." People v. Taylor, 197 Colo. 161, 164 , 591 P.2d 1017, 1019 (1979).
1130 The United States Court of Appeals cases cited by the majority regarding the interplay between the Second Amendment and federal statutes similar to section 18-18-407(1)(f) do not defeat the propriety of the tendered instruction, for two reasons. First, as indicated, the Second Amendment is narrower than its analog in the Colorado 'Constitution. Second, those cases foeus on possession and hold that such possession must be for a lawful purpose. See United States v. Bryant, 711 F.3d 364, 368-71 (2d Cir.2018) (possession in furtherance of drug trafficking operation); United States v. Jackson, 555 F.3d 635, 636 (7th Cin.2009) (same); United States v. Greeno, 679 F.3d 510, 520 (6th Cir.2012) (same). While the defendants in those cases may have claimed to have possessed the guns for self-defense, none of the cases involved a defendant's use of a gun in self-defense, as occurred here. See also United States v. Huet, 665 F.3d 588, 601 (3d Cir.2012) ("The Government readily concedes that Huet would not violate § 922(g)(1) simply by possessing a firearm. She would, however, violate § 922(g)(1) and § 2 by aiding and abetting a felon to possess a firearm." (emphasis omitted)).
{131 Nor am I persuaded by the majority's explanation that "the jury would not have been able to find that the weapon was used solely for a constitutional self- defense supply from intruders." purpose, because the jury was required to find that the gun was used, possessed, or available for use during the commission of and in connection with the crime of possession with intent to distribute marihuana." On the evidence presented here, the majority is correct that a "defendant's use or possession of a gun can simultaneously be for the purpose of self-defense against intruders, and also for the purpose of protecting a drug But from the evidence, the jury could also have concluded-if properly instructed-that defendant used the gun only in self-defense, not in connection with the marijuana offense.,
{132 For this reason, in my view, analysis based on simultaneity assumes away the very problem that it purports to solve-the ten-gion between the special offender statute and defendant's essential and inalienable constitutional right to defend his family and himself with a gun. See People v. Blue, 190 Colo. 95, 103 , 544 P.2d 385, 391 (1975) ("We do not read the Colorado Constitution as granting an absolute right to bear arms under all situations. It has limiting language dealing with defense of home, person, and property."). Here, because the same conduct could both exercise this right and trigger the sentence enhancer does not mean that the jury must so conclude. Yet, under the majority's assumption-'"the simultaneous use of the gun to protect drugs"-when the armed intruders foreed open his front door, defendant could not protect lives without thereby creating proof of nexus based on also protecting his drugs.
€138 I rejeet this assumption because it deprives the jury of the opportunity to weigh the nexus requirement against defendant's subjective intent and the objective exigency. Instead, an appropriate constitutional self-defense instruction would have resolved this dilemma by allowing the jury to consider the immediate need to defend the lives of those present as dispelling any inference of simultaneous use to protect drugs on the premises. 3 And here, the evidence was sufficient to *903 give such an instruction. See People v. Laurson, 15 P.3d 791, 794 (Colo.App.2000) ("If the record contains any evidence tending to establish self-defense, a defendant is entitled to have the jury instructed concerning it.").
134 Accordingly, because in my view the trial court erred by refusing the tendered instruction on defendant's constitutional right to use his gun in self-defense, I would vacate the special offender sentence enhancer and remand for resentencing. In all other respects, I concur in the majority's opinion.
. Although the majority appears to endorse rational basis review, "[t] he constitutional analysis applied to the laws that impede upon these inalienable rights is a means-end review, legally referred to as a substantive due process analysis." Nixon v. Commonwealth, 576 Pa. 385 , 839 A.2d 277, 286 (2003).
. Defendant argues that this tension shows the statute to be fatally overbroad. I decline to address overbreadth because giving the instruction would have protected defendant's constitutional rights and saves the statute from potential invalidation.. See People v. Montour, 157 P.3d 489, 503-04 (Colo.2007) ("[Clourts have a duty to interpret a statute in a constitutional manner where the statute is susceptible to a constitutional construction.").
. This approach is not foreclosed by Heller. See Moore v. Madigan, 702 F.3d 933, 935-36 (7th *903 Cir.2012) ("Nor can we ignore the implication of the [Heller] analysis that the constitutional right: of armed self-defense is broader than the right to have a gun in one's home."). ©