County District Court No. 13CR4961 Honorable Larry E.
Cynthia H. Coffman, Attorney General, Matthew S. Holman,
First Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Chelsea E.
Mowrer, Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Jeritt Joseph Tardif, appeals the judgment of
conviction entered on jury verdicts finding him guilty of
attempted second degree murder, first degree assault,
conspiracy to commit first degree assault, and three crime of
violence counts. We reverse in part, affirm in part, and
2 Tardif's friend, Joaquin Soto, was at a skate park and
got into an argument with the victim. Tardif and Soto were
members of the same gang, and the victim was wearing the
colors of a rival gang. After the argument, Soto called
Tardif and told him that the victim was "flexing, "
"tripping, " and threatening to "call his
3 Tardif arrived at the skate park about ten minutes later
with a loaded handgun. When Tardif arrived, the victim was
standing in the middle of the skate park, wearing no shirt
with a bandana the color of the rival gang covering his face.
Tardif and Soto walked up to the victim, and Tardif shot him
once in the abdomen. The victim fled and survived.
4 Other people at the skate park used their cell phones to
record video of part of the initial argument between Soto and
the victim as well as the shooting. The prosecution obtained
the videos and charged Tardif with several criminal counts.
At trial, the prosecution introduced these videos, as well as
two slow-motion recordings of the shooting created by the
prosecution. The jury found Tardif guilty of attempted second
degree murder, first degree assault, conspiracy to commit
first degree assault, and three crime of violence counts. The
trial court convicted him and sentenced him to twenty-two
years in the custody of the Department of Corrections.
5 Tardif appeals, arguing that the trial court erred by (1)
improperly instructing the jury on the mitigating factor of
heat of passion provocation; (2) improperly instructing the
jury on self-defense; (3) admitting the slow-motion
recordings of the cell phone videos; and (4) allowing
improper closing argument by the prosecution. We conclude
that the court's heat of passion provocation instruction
requires reversal of Tardif's attempted second degree
murder and first degree assault convictions (and the related
crime of violence counts), but not his conspiracy conviction.
We then address whether his remaining arguments require
reversal of his conspiracy conviction and conclude that they
Heat of Passion Provocation Instruction
6 Heat of passion provocation is a mitigating factor for
attempted second degree murder and first degree assault that,
if applicable, the prosecution is required to disprove beyond
a reasonable doubt. § 18-3-103(3)(b), C.R.S. 2017
(second degree murder); § 18-3-202(2)(a), C.R.S. 2017
(first degree assault); People v. Villarreal, 131
P.3d 1119, 1127 (Colo.App. 2005), aff'd on other
grounds, 2012 CO 64.
7 Tardif argues that the trial court erred by failing to
instruct the jury that the prosecution had the burden to
prove the absence of heat of passion provocation beyond a
reasonable doubt. He argues that this error lowered the
prosecution's burden of proof and therefore violated his
constitutional right to due process.
8 The prosecution first responds that we should not address
this issue at all because Tardif waived it. Alternatively, if
Tardif did not waive it, the prosecution argues that the
issue is unpreserved and we should reverse only if the error
9 We conclude that Tardif preserved this issue for our review
and that the trial court's instructions require us to
reverse Tardif's attempted second degree murder and first
degree assault convictions.
10 To preserve an alleged error for appellate review, a
defendant's actions must allow the trial court "a
meaningful chance to prevent or correct the error and
create a record for appellate review." Martinez v.
People, 2015 CO 16, ¶ 14. An alleged instructional
error is preserved if the defendant tenders the desired
relevant instruction even if the defendant does not object or
otherwise raise the issue during the jury instruction
conference. See People v. DeGreat, 2015 COA 101,
¶ 10 (cert. granted Aug. 1, 2016).
11 Here, Tardif tendered jury instructions to the trial court
that defined heat of passion provocation and also explained
that the burden was on the prosecution to prove the absence
of heat of passion provocation beyond a reasonable doubt. At
the on-the-record jury instruction conference, the trial
court ruled that although Tardif was entitled to heat of
passion provocation instructions, it would not give the exact
instructions that Tardif tendered. The substance of the heat
of passion provocation instructions that the court would give
to the jury was not discussed. Although Tardif did not raise
the prosecution's burden to prove heat of passion
provocation beyond a reasonable doubt during the instruction
conference, the fact that he tendered an instruction to that
effect was sufficient to preserve the issue for appeal.
12 We also disagree with the prosecution that at the end of
the instruction conference, Tardif waived the right to raise
this issue on appeal. "[W]aiver is the 'intentional
relinquishment or abandonment of a known right.'"
United States v. Olano, 507 U.S. 725, 733 (1993)
(citation omitted). It occurs when a defendant
"specifically removes claims from the trial court's
consideration." People v. Rediger, 2015 COA 26,
¶ 54 (cert. granted Feb. 16, 2016).
13 At the end of the conference, the following exchange
The Court: Defense, have you received copies of the [jury]
instructions and verdict forms?
[Defense Counsel]: Yes, Your Honor.
The Court: I have marked the heat of passion packet of jury
instructions that you've tendered. We've adopted most
of yours but changed others, so I've marked that as an
exhibit for appellate purposes that will include all your
tendered [sic]. Other than that, do you have any additions or
corrections or additional tenders that you wish to make?
[Defense Counsel]: Not at this time, Your Honor.
The Court: All right.
[Defense Counsel]: Thank ...