Ray v. People

          Rehearing Denied May 20, 2019

          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

          En Banc

         OPINION

         COATS, CHIEF JUSTICE

         [¶1]

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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.

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         [¶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

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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

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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 ...