Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 07CA561
Attorneys for Petitioner: Elisabeth Hunt White Boulder,
Colorado
Johnson & Klein, PLLC Gail K. Johnson Eric K. Klein
Boulder, Colorado
The
Noble Law Firm, LLC Antony M. Noble Lakewood, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General
John T. Lee, Senior Assistant Attorney General Denver,
Colorado
OPINION
COATS,
CHIEF JUSTICE
¶1
Ray petitioned for review of the court of appeals'
judgment affirming his convictions for attempted first degree
murder, first degree assault, and accessory to first degree
murder. As pertinent to the issues before the supreme court,
the intermediate appellate court rejected Ray's claim
that one of the self-defense-related instructions given by
the district court implicitly shifted the burden of proof to
him by improperly imposing conditions on the availability of
that affirmative defense; and in the absence of any record
indication that the jury later watched a recorded witness
interview admitted as an exhibit at trial, the appellate
court declined to address his claim that the district court
abused its discretion in allowing the jury unrestricted
access to that recording.
¶2
Because the language of the instruction in question did not
permit the jury to reconsider the court's determination,
based on the evidence at trial, that the affirmative defense
of person was available to Ray, and because the jury was
properly instructed concerning the People's burden to
disprove that, and any, affirmative defense, the district
court did not err in instructing the jury as to his assertion
that he acted in defense of himself and a third person.
Although error resulted from the district court's
reliance on later-overruled case law permitting the jury to
have unrestricted access to the exhibit in question, when the
content of that exhibit is compared with the other evidence
admitted at trial, the error was harmless. The judgment of
the court of appeals is therefore affirmed.
I.
¶3
Robert Ray was charged with first degree murder and accessory
to murder in connection with the shooting death of Gregory
Vann, as well as attempted murder for trying to shoot Jeremy
Green, and both first degree attempted murder and first
degree assault for each of the separate shootings of Elvin
Bell and Javad Marshall-Fields. He was acquitted of the
murder of Vann and the attempted murder of Green but was
convicted of being an accessory to the murder of Vann and of
committing both attempted first degree murder and first
degree assault for the shootings of Bell and Marshall-Fields.
Ray was sentenced concurrently for his dual convictions of
attempted murder and assault with regard to Bell and his dual
convictions of attempted murder and assault with regard to
Marshall-Fields, but consecutively for the crimes he
committed against Bell, the crimes he committed against
Marshall-Fields, and the crime he committed relative to the
murder of Vann, resulting in a total sentence to the custody
of the department of corrections for 108 years.[1]
¶4
The charges all arose from events occurring at a melee at
Lowry Park on July 4, 2004, and its aftermath. The evidence
at trial included numerous first-hand witness accounts, a
home video taken by one of the attendees, a recording of a
police interview of Green made shortly after the events in
question, and photographic, real, and testimonial evidence
concerning the wounds of Bell and Marshall-Fields and the
weapons used by Ray and Sir Mario Owens, Ray's very close
friend. The defendant also testified on his own behalf.
¶5
Although there was much conflicting testimony, it was
undisputed that the Lowry Park event, attended by as many as
200 people, was organized by Vann and Marshall-Fields as a
musical event and barbeque, which was free and open to the
public. Early in the evening, the defendant was confronted by
Marshall-Fields about his behavior at the event, as a result
of which interaction the defendant's wife, who was also
in attendance with his sister, called Owens to come and
support the defendant. Sometime later, about 9:00 p.m., as
the wife and sister were attempting to drive away, they
became embroiled in a confrontation with a crowd of people,
which was joined by the defendant and Owens. A home video
showed both men and women involved in the struggle. There was
testimony that Vann was attempting to break up the fight, and
Green expressly stated in the interview that he confronted
the defendant about his aggressive behavior, head-butted him
in the face, and heard him, at several points during the
confrontation, threaten to kill everybody.
¶6
Shortly thereafter, the defendant admittedly lifted his shirt
as he walked forward toward the crowd, revealing a handgun in
his waistband, and the defendant's wife identified
another man seen in the home video, similarly raising his
shirt, as Owens. In the confrontation that ensued, Owens shot
Vann in the chest at close range and once more after he fell.
As Owens attempted to escape to the car being driven by the
defendant, he was pursued by Bell and Marshall-Fields, both
of whom were then shot several times. Although both men
indicated that they initially thought they had been shot by
Owens, being the only person they had seen with a gun,
another witness testified that he saw the defendant calmly
come around the car, put his gun under his left arm, and
shoot both men repeatedly.
¶7
One nine-millimeter and two .380 caliber shell casings were
found at the scene, and two .380 caliber bullets were
recovered from the body of Vann, who was clearly shot by
Owens. One bullet fragment that was later removed from the
chest wall of Bell, whom the defendant admitted he shot, was
identified as having splintered from a nine-millimeter
bullet. Both of Marshall-Fields's wounds had clear
entrance and exit wounds, leaving no identifiable bullets or
bullet fragments. The defendant's wife testified that the
defendant's stepfather disposed of both guns. No witness
testified to seeing anyone other than Owens or the defendant
with a weapon.
¶8
Although the defendant admitted that in the days following
the shooting, he took active steps to help Owens evade
capture, he also testified that he did not shoot
Marshall-Fields and that although he did shoot Bell, he did
so only in defense of himself and Owens. The defendant
confirmed that he had a nine-millimeter semiautomatic handgun
in his waistband, but he testified that he showed it only in
an attempt to force the crowd back so that he could search
for a chain he lost during the struggle. He also testified
that he never saw Owens with a gun that night, but that he
did see blood on Owens's shirt when he was being beaten
by Bell and therefore believed Bell had shot Owens, causing
the defendant to defensively shoot Bell. Finally, with regard
to Green's statement that the defendant repeatedly
threatened to kill everybody, the defendant testified simply
that he did not recall doing so.
¶9
Following affirmance of his convictions by the court of
appeals, the defendant petitioned this court for further
review on a host of issues. We issued our writ of certiorari
only with regard to the questions whether the district
court's instructions erroneously shifted the burden of
proof relative to the defendant's assertion of
self-defense and whether the jury's having had unfettered
access to the Green videotaped interview violated the
defendant's federal and state constitutional rights to
due process and a fair trial.
II.
¶10
The jury was instructed on the defendant's asserted
affirmative defense of acting in defense of himself or a
third person in four separate instructions. In addition to an
instruction generally notifying the jury of and explaining
the prosecution's burden of proof with regard to the
elements of each offense, which included committing the other
elements without the affirmative defense, the district court
instructed the jury, in a separate instruction, that the
evidence had raised an affirmative defense; that the
prosecution had the burden to prove the defendant's guilt
beyond a reasonable doubt as to that affirmative defense as
well as the other elements of the crime charged; and that if
after considering the evidence of the affirmative defense
with the other evidence in the case the jury was not
convinced beyond a reasonable doubt as to the defendant's
guilt, it would be required to return a not guilty verdict.
In a third instruction, the jury was then instructed as to
the circumstances under which the defendant's use of
physical force and deadly physical force would be justified
in defense of himself or another person, including the
requirement that the defendant must have had a reasonable
belief that he or another person was in imminent danger of
being killed or of receiving great bodily injury.
¶11
In the instruction challenged by the defendant here, numbered
25, the jury was further instructed concerning the question
whether an actual belief by the defendant, if the jury were
to find him to have had one, could be considered to have been
supported by reasonable grounds.[2] Specifically, the defendant
contends that by instructing the jury in the language,
"[i]n deciding whether or not the defendant had
reasonable grounds for believing," and further that the
jury "should determine whether or not he acted as a
reasonable and prudent person," the court implicitly
imposed conditions on even the "availability" of
the defense, effectively shifting the burden to him to first
prove these conditions before being entitled to have the
prosecution disprove the defense beyond a reasonable doubt.
Unlike our precedent upon which the defendant relies,
Instruction No. 25 does not mention anything about the
"availability" of the defense, much less suggest
that the defendant bore a burden to prove preconditions to
its availability; rather, on its face, the instruction
purports to further explain the meaning of a statutory
concept included in the defense itself.
¶12
It is now well-settled that the issue of justification for
intentionally or knowingly killing another person in defense
of oneself or a third person is an affirmative defense, as to
which the trial court is obliged to instruct the jury
whenever the court determines that the defendant has
presented some credible evidence on the issue and the
defendant requests that the court do so. § 18-1-407(1),
C.R.S. (2018); § 18-1-704(1), (2)(a), C.R.S. (2018);
§ 18-1-710, C.R.S. (2018); Montoya v. People,
2017 CO 40, ¶¶ 26-29, 394 P.3d 676, 686-88
(explaining People v. Pickering, 276 P.3d 553, 555
(Colo. 2011) (stating that self-defense is an affirmative
defense with respect to crimes requiring intent, knowledge,
or willfulness)); People v. Speer, 255 P.3d 1115,
1119 (Colo. 2011). Once the defense has been adequately
raised and presented by the court to the jury, the guilt of
the defendant must be established by the prosecution beyond a
reasonable doubt as to that affirmative defense, just as to
the other elements of the offense against which the defendant
is defending. § 18-1-407(2); Pickering, 276
P.3d at 555.
¶13
On several occasions in the past, we have drawn a clear
distinction between the prosecution's burden to disprove
an affirmative defense to the jury's satisfaction, beyond
a reasonable doubt, once it has been placed at issue, and the
question whether the defense has been placed at issue in the
first place, finding in those cases that an instruction
permitting the jury to redetermine the question of a
defense's availability or applicability effectively
permitted the jury to absolve the prosecution of its burden
to disprove the defense and therefore its duty to prove all
of the elements of the offense. See People v. Janes,
982 P.2d 300, 303-04 (Colo. 1999); Lybarger v.
People, 807 P.2d 570, 574, 579, 581-83 (Colo. 1991). In
Lybarger, where the jury was instructed both that it
should find the defendant guilty if the affirmative defense
in question was not "available" to him and that the
defense would not be "available" to him if the
People proved specified conditions virtually identical with
the elements of the crime with which he was charged, we found
that taken together these instructions not only erroneously
relegated to the jury the function of determining the
availability or non-availability of the affirmative defense
but also effectively eliminated the prosecution's burden
of proof with respect to that defense. 807 P.2d at 574,
581-82. Again, in Janes, which involved the
virtually unique situation of the so-called
"make-my-day" defense, which can operate as either
a pre-trial immunity, which must be proved by the defendant,
or an affirmative defense at trial, to be disproved by the
prosecution, we held that instructing the jury in the
language of the immunity- that the affirmative defense would
not be "available" unless the jury first found the
victim to have made a knowing unlawful entry-similarly
relieved the prosecution of any burden to disprove the
defense, until after proof of a precondition only the
defendant could have an interest in proving. 982 P.2d at
303-04.
¶14
Unlike the erroneous instructions in Lybarger and
Janes, Instruction No. 25 neither stated, nor even
implied, anything about the availability or applicability of
the defense. Rather, it expressly referenced, and embellished
on a concept contained in, the immediately preceding
affirmative defense instruction, which itself expressly
spelled out the prosecution's burden to disprove the
defense beyond a reasonable doubt, by detailing the findings
necessarily included in the conditions of the defense. To the
extent the defendant suggests that the instruction's use
of the phrase "whether or not" relieved the
prosecution of its burden by implying an obligation of the
jury to determine whether any belief actually held by the
defendant was or was not reasonable prior to holding the
prosecution to its burden to disprove that the
defendant's conduct was justified, there was little
chance the jury could have been misled by such a subtle and
nuanced interpretation, especially in light of its other
express instructions concerning the prosecution's burden.
The jury was expressly instructed of the prosecution's
burden to disprove the affirmative defense multiple times, in
substantially the language of the statutes and pattern
instructions, including in the very affirmative defense
instruction whose terms were the subject of explanation in
Instruction No. 25.
III.
¶15
Despite being refreshed with the transcript of the recording
of his interview with the police, Green repeatedly asserted a
lack of memory and therefore failed to answer a majority of
the prosecutor's questions concerning the Lowry Park
shootings. As a result, the videotaped interview was admitted
into evidence as a prior inconsistent statement. Over the
defendant's objection, the district court ruled that
recent changes to the civil procedural rules had eliminated
any limitation on exhibits being taken into the jury room
during deliberations, and it ordered that the video and
equipment to view it be made available to the jury. Although
the cases of Frasco v. People, 165 P.3d 701 (Colo.
2007), and DeBella v. People, 233 P.3d 664 (Colo.
2010), had not yet been announced by this court, and the
district court could therefore not have been aware of them,
our rulings in those cases expressly overruled the precedents
relied on by the district court and made clear that its
ruling permitting unfettered access to Green's
out-of-court interview, without any exercise of discretion on
its part, was error.[3]
¶16
However, even a properly objected-to trial error will be
disregarded as harmless if that error did not substantially
influence the verdict or affect the fairness of the trial
proceedings. James v. People, 2018 CO 72, ¶ 19,
426 P.3d 336, 341; see also Crim. P. 52(a). While
the strength of the evidence supporting a verdict is often an
important consideration in assessing harmlessness, so too is
the specific nature of the error in question and the nature
of the prejudice or risk of prejudice associated with that
error. People v. Roman, 2017 CO 70, ¶ 14, 398
P.3d 134, 138; Crider v. People, 186 P.3d 39, 43
(Colo. 2008). As we made clear in Frasco, the reason
trial courts have an obligation, at least where prompted to
do so by a party, to exercise discretion in permitting
testimonial exhibits to be viewed by deliberating juries is
to guard against their being given undue weight or emphasis,
much as they have an obligation with regard to jury requests
to review transcripts of specific trial testimony. 165 P.3d
at 703-05 (analogizing testimonial exhibits to the trial
transcripts at issue in Settle v. People, 504 P.2d
680 (Colo. 1972)); see also Martinez v. People, 2017
CO 36, ¶ 31, 393 P.3d 557, 563 ("[J]urors'
unlimited access in the jury room to only one side of the
story heightened the risk that they would give that side
undue weight . . . ."). While we have never
circumscribed the trial court's discretion in this regard
by mandating time limitations on jury access or requiring
particular limiting instructions, see Frasco, 165
P.3d at 704, we have ...