Brown v. People

Justice COATS,

concurring in the judgment only.

Although I too would affirm the judgment of the court of appeals, I agree with neither *771 the majority's understanding of the controlling legal standards nor its assessment of the evidence. Unlike the majority, I believe it cannot be fairly said that the instructions requested by the defendant in this case were unsupported by the evidence. Also unlike the majority, however, I think it clear that the defendant was not entitled to have the jury instructed on a theory directly contravening his express testimony at trial. Finally, I feel compelled to note that if the evidence were, as the majority concludes, actually insufficient to support the defense-requested instructions, that portion of its opinion substantially limiting our holding in People v. Garcia, 826 P.2d 1259 (Colo.1992), would be unnecessary to resolution of the case and would therefore amount to nothing more than dicta. Because I agree that the defendant was not entitled to his requested instructions but disagree with both of the majority's alternate rationales for concluding as much, I concur only in its judgment affirming the court of appeals.

Initially, I believe the majority conflates several different types of instructions to which a defendant may be entitled, and as a result of that imprecision, at least in part, it evaluates the defendant's requests according to an overly burdensome standard. Depending upon their nature and purpose, we have categorized instructions to which a criminal defendant can become entitled differently, using somewhat different formulae to de-seribe their evidentiary prerequisites.

We have, for example, made abundantly clear that a defendant is entitled to have the jury apprised of his theory of the case as long as there is any evidence to support it, even if that theory is highly improbable and finds support only in the testimony of the defendant himself. People v. Nunez, 341 P.2d 261, 264-65 (Colo.1992). Presenting the jury with a defendant's explanation of the evidence is considered so integral to his right to present a defense that we have required trial courts to help craft proper theory-of-the-case instructions rather than simply reject ones they consider improper. People v. Moya, 182 Colo. 290, 292-98 , 512 P.2d 1155, 1156 (1978). An instruction setting forth the statutory elements of either a crime or defense, however, is clearly different from and cannot take the place of a defendant's theory of the case instruction. Nunez, 841 P.2d at 265.

While a defendant's theory of the case may be that he has committed nothing more than some lesser offense and therefore must be acquitted of the charges actually brought against him, any entitlement he may have to present the jury with an option to convict him of an offense less serious than the one actually charged is governed by different considerations. Charging decisions are generally reserved to the discretion of the prosecuting authority. People v. District Court, 632 P.2d 1022 , 1024 (Colo.1981). Because a criminal defendant has effectively been put on notice that he will be required to defend against any offense the elements of which are included in a charged offense, and because he will be permitted to plead former jeopardy as a bar to subsequent prosecution for such an offense in any event, prosecutors are liberally permitted to have juries instructed and return verdicts on lesser included offenses. See People v. Garcia, 940 P.2d 357, 362-63 (Colo.1997); People v. Barger, 191 Colo. 152, 154 , 550 P.2d 1281, 1282-83 (1976); People v. Cooke, 186 Colo. 44, 48 , 525 P.2d 426, 428-29 (1974). By the same token, because defendants have, in effect, already been required to defend against an included offense and because it is generally considered desirable to forestall compromise verdicts on charged offenses for want of more suitable options, defendants are also permitted to have the jury instructed on lesser included offenses, see People v. Rivera, 186 Colo. 24, 28-29 , 525 P.2d 431, 434 (1974), at least where the evidence presented at trial would permit a reasonable jury to acquit of a charged offense and still convict of a lesser included offense. See People v. Futamata, 140 Colo. 233, 241 , 343 P.2d 1058, 1062 (1959); of. § 18-1-408(6), C.R.S. (2009).

Although lesser offenses, all the elements of which are not included in a charged offense, may also find support in the evidence at trial, they cannot be similarly said to have been the object of the prosecutor's proof. Largely for this reason, criminal defendants in many jurisdictions are not entitled to in *772 structions on lesser nonineluded offenses. See, e.g., Hopkins v. Reeves, 524 U.S. 88, 99 , 118 S.Ct. 1895 , 141 L.Ed.2d 76 (1998) (commenting that permitting jury to convict of offense the prosecution did not even try to prove "can hardly be said to be a reliable result"); People v. Birks, 19 Cal.4th 108, 136 , 77 Cal.Rptr.2d 848 , 960 P.2d 1073 (1998) (overruling prior allowance of lesser nonin-cluded offense instructions requested by defense). In this jurisdiction, however, we long ago decided to put lesser nonineluded offenses on a par with lesser included offenses, entitling defendants to present juries with the option of convicting of a lesser offense, whether included or not, whenever it is the defendant's theory that he merely committed the lesser offense and an instruction of the lesser offense is warranted by the evidence. Rivera, 186 Colo. at 28 , 525 P.2d at 484 . Almost immediately thereafter, we made clear that lesser noninceluded offenses are warranted and may be submitted to the jury under a theory of the case instruction only if the "jury reasonably could acquit the defendant of the offense charged and simultaneously find him guilty of the lesser nonin-cluded offense." People v. Aragon, 653 P.2d 715 , 720 n. 5 (1982).

As a special case of (or perhaps exception to) this rational basis formula, we have expressed a particular preference for jury determinations of the appropriate "grade of criminal homicide" by entitling defendants to lesser offense instructions in homicide prosecutions whenever there is "some evidence, however slight," People v. Shaw, 646 P.2d 375, 379 (Colo.1982), or "any evidence whatever," Crawford v. People, 12 Colo. 290, 292 , 20 P. 769 , 770 (1889), "regardless of how improbable, unreasonable, or slight it might be." Mata-Medina v. People, 71 P.3d 973, 979 (Colo.2008) (quoting Garcia, 826 P.2d at 1262 ). Although we have never attempted to explain more precisely the relationship between this standard for lesser homicide offenses and the statutory rational basis test, the former is clearly intended to be more deferential to jury determinations. Whatever the rationale for this deference, in light of this jurisdiction's recognition of attempts to commit lesser homicide offenses, see People v. Thomas, 729 P.2d 972 (Colo.1986) (recognizing crime of attempted reckless homicide); People v. Krovarz, 697 P.2d 378 (Colo.1985) (recognizing crime of attempted second degree murder), it is less than clear why the same deferential standard should not apply to them.

Similarly, a defendant has adequately raised and is entitled to an instruction defining an affirmative defense as long as there is some credible evidence to support it. See § 18-1-407(1), C.R.S. (2009); Cassels v. People, 92 P.3d 951, 955 (Colo.2004). Although a particular defense may be more in the nature of a traverse than a true affirmative defense, see People v. Huckleberry, 768 P.2d 1235, 12838 (Colo.1989), and therefore the defendant may not be entitled to an instruction requiring that it be separately disproved by the prosecution, a criminal defendant is nevertheless entitled to have his theory of traverse presented by instruction if there is any evidence, no matter how slight or improbable, to support it. Nunez, 841 P.2d at 266 (although alibi is not an affirmative defense, defendant was entitled to instruction that his theory of the defense was alibi). Because a trial court always has an obligation to ensure that the Jury is properly instructed as to the applicable law, Cassels, 92 P.3d at 955 , and because voluntary intoxication can traverse a specific intent element, § 18-1-804(1), C.R.S. (2009), a defendant charged with a specific intent erime meets the evidentiary prerequisite for a voluntary intoxication instruction whenever there is any evidence, however improbable, supporting it.

In this case the victim herself testified that the defendant stored crack cocaine at her apartment and on the night of the shooting took ecstasy, had several drinks in her presence, and demanded that she hand over an unopened bottle of vodka as they parted. Although he denied ever coming back to the victim's apartment or shooting her, the defendant further testified that he went to another bar before returning to his motel room, where he drank most of the bottle of vodka. The jury therefore heard uncontradicted testimony that the defendant had been drinking and taking illegal, mind-altering substances earlier that night and that he insisted on taking with him a bottle of vodka, which the *773 jury could believe he drank that same night. Because it was for the jury to decide whether to believe any of the defendant's testimony, and if so, precisely how much and which parts of his testimony to believe, I would find a rational basis in the record to convict him of attempted second, rather than first, degree murder. Whether or not the more deferential standard for homicide offenses should apply equally to attempted homicides, there was clearly "some evidence" to support both an instruction on voluntary intoxication and an instruction (even if not offered in proper form) explaining to the jury the defendant's intoxication theory.

I believe, as did the trial court, that the defendant's requested instructions were nevertheless properly denied because a criminal defendant is not entitled to an instruction based on a theory requiring the jury to reject a binding judicial admission, made under oath at trial by the defendant himself. Garcia, 826 P.2d at 1263-64 . We have never suggested, and the majority does not now suggest, any logical distinction between included and nonincluded offenses making this proposition applicable to the latter but not the former category of instructions, and there clearly can be none. Instead, the majority finds, in a statute limiting a defendant's right to lesser included offense instructions, a legislative intent to require trial courts to give such instructions without regard to contradictory binding judicial admissions. See § 18-1-408(6).

On its face, the statute in question specifies a cireumstance in which courts "shall not be obligated to charge the jury with respect to an included offense," as distinguished from the cireumstances in which it shall be obligated do so. Id. In any event, however, the legislature's extension of rights to criminal defendants cannot reasonably be understood, without more, to suggest that these defendants cannot, by their own conduct, forfeit, waive, or be estopped from asserting those rights. Section 18-1-408(6) notwithstanding, it is manifest that a trial court is not obliged to charge a jury with respect to an included offense in the absence of a timely and proper request to do so. I understand the majority's expansive interpretation of this peripherally relevant statute as having the effect of substantially limiting our holding in Garcia without having to justify its rejection.

Although I believe it strains credulity to deny that the record as a whole contains evidence supporting the defendant's requested instructions, I would nevertheless continue to hold that a defendant is not entitled to solicit through jury instructions his convietion of a less serious offense in direct contravention of his testimony at trial. I therefore concur only in the court's judgment affirming the court of appeals.

I am authorized to state that Justice EID joins in this concurrence in the judgment only.