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People v. Tardif

Court of Appeals of Colorado, Fifth Division

November 2, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Jeritt Joseph Tardif, a/k/a Jeritt Joseph Tardiff, Defendant-Appellant.

         El Paso County District Court No. 13CR4961 Honorable Larry E. Schwartz, Judge

          Cynthia H. Coffman, Attorney General, Matthew S. Holman, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Chelsea E. Mowrer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          ASHBY, JUDGE

         ¶ 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 remand.

         I. Background

         ¶ 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 homies."

         ¶ 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 do not.

         II. 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 was plain.

         ¶ 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.

         A. Preservation

         ¶ 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. See id.

         ¶ 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 occurred.

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 ...

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