El Paso County District Court No. 10CR2846. Honorable Jann P. Dubois, Judge.
John W. Suthers, Attorney General, Victoria M. Cisneros, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by JUDGE TAUBMAN. Terry and Richman, JJ., concur.
[¶1] Defendant, Logan Scott McClelland, appeals the judgment of conviction entered on a jury verdict finding him guilty of reckless manslaughter. We reverse and remand for a new trial.
[¶2] On the afternoon of August 9, 2009, McClelland accompanied his father Tom and brother Luke to a water station outside of Monument, Colorado. Tom, a water system repair technician who often traveled to remote parts of the state, frequently brought McClelland, his eighteen-year-old son, along with him because of his physical limitations. That day, the air pressure in one of their
truck's tires was low, so they travelled to a nearby repair shop.
[¶3] As the McClellands entered the mechanic's office, they heard someone shout an expletive from one of the service bays. Tom notified the manager of the repair shop that one of his mechanics was cursing. As the McClellands waited for their repairs to be completed, another customer entered the waiting area. He informed the McClellands that he had been confronted outside by one of the store's employees. The employee, B.B., the victim, had come within a foot of the other customer's face and shouted, " So you don't like how I talk?" B.B. got close enough to head butt him, and he thought that B.B. was going to strike him. At some point during the altercation, B.B. realized he was confronting the wrong person and returned to the shop.
[¶4] After the McClellands' truck was repaired, they paid the manager, who informed them that B.B. had been drinking and had been sent home. The repair shop had a policy of sending employees home who were found drinking on the job and then firing them the next day. When the manager confronted B.B. about Tom's complaint, B.B. demanded the complainant's identity. After he was sent home, B.B. repeatedly asked the shop's other employees questions such as who " was this fucking guy getting me in trouble and jeopardizing my job?"
[¶5] As the McClellands drove out of the parking lot, they noticed B.B. standing next to the exit drive and looking at them. B.B was " red faced," and several of his coworkers realized that " some kind of fight or something was going to happen." B.B., who had a reputation for starting fights when he was drunk, had a blood alcohol level of .275, as well as antidepressants and valium in his system.
[¶6] Multiple bystanders witnessed the interaction between B.B. and the McClellands, and each presented slightly different accounts at trial.
[¶7] The altercation started when B.B. gestured at the McClellands in a hostile manner. He was originally on the passenger side of the McClellands' truck, then came around to the driver's side where Tom was seated. When B.B. got to the driver's side, he said: " If you have something to say, get out of the truck and say it. Say it to my face." Tom and B.B. exchanged words, and there was a struggle over the door. Tom testified that B.B. opened the driver's side door, and that he pushed the door at B.B. in order to back him away from the truck.
[¶8] During the altercation between Tom and B.B., McClelland reached into his father's backpack and removed a handgun. He exited the passenger door, came around the front of the truck, and shot B.B. seven times in rapid succession. B.B. died at the scene.
[¶9] McClelland was charged with one count of first degree murder. He pleaded not guilty and defended on the ground that he had acted in defense of himself and his father.
[¶10] At trial, the primary factual disputes concerned the McClelland family's perception of events. Tom and his other son Luke both testified that B.B. stuck his arms and head through the passenger window and shouted at them. They further testified that after B.B. came around to the driver's side, B.B. physically struck and grabbed Tom, knocking his glasses off. The testimony of other witnesses varied concerning whether Tom was inside or outside the truck when the shooting took place, and many witnesses testified that their attention was not drawn to the situation until after the shooting began.
[¶11] The jury acquitted McClelland of first and second degree murder, but found him guilty of reckless manslaughter. The trial court sentenced him to six years in the custody of the Department of Corrections.
[¶12] McClelland makes four contentions on appeal: (1) the trial court erred by not giving a self-defense law instruction on the reckless manslaughter charge; (2) the trial court abused its discretion by admitting three " in life" photographs depicting B.B. participating in family events; (3) the prosecutor committed misconduct in closing arguments by misstating the testimony of several eyewitnesses; and (4) the trial court erred
by denying a challenge for cause to a prospective juror.
II. Jury Instruction
[¶13] McClelland contends that the trial court erred by not giving the jury a " self-defense law instruction" on the charge of reckless manslaughter. We agree.
A. Standard of Review
[¶14] We review de novo whether a particular jury instruction correctly states the law. Fishman v. Kotts, 179 P.3d 232, 235 (Colo. App. 2007). However, we review for an abuse of discretion a trial court's decision to give a particular jury instruction. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011).
[¶15] McClelland did not object to the jury instructions; therefore, we review for plain error. People v. Miller, 113 P.3d 743, 749 (Colo. 2005). Plain error addresses error that is both " obvious and substantial." People v. Stewart, 55 P.3d 107, 120 (Colo. 2002) (internal quotation marks omitted). It must be seriously prejudicial and " so undermine the fundamental fairness of the proceeding itself as to cast serious doubt on the reliability of the judgment of conviction." People v. Hagos, 2012 CO 63,
¶ 14, 288 P.3d 116, 120 (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo. 2003)).
[¶16] Plain errors must also be " so clear-cut, [and] so obvious, that a trial judge should be able to avoid [them] without benefit of objection." People v. Pollard, 2013 COA 31,
¶ 39, 307 P.3d 1124, 1133. For an error to be obvious, it must contravene (1) a clear statutory command; (2) a well-settled legal principle; or (3) Colorado case law. Id. at ¶ ¶ 40-41, 307 P.3d at 1133; see also People v. Ujaama, 2012 COA 36, ¶ 42, 302 P.3d 296, 304; People v. ...