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]
Page 413
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 Rays 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 courts 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 Peoples 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 courts 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, Rays very close
friend. The defendant also testified on his own behalf.
Page 414
[¶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 defendants 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 defendants 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-Fieldss wounds had clear entrance
and exit wounds, leaving no identifiable bullets or bullet
fragments. The defendants wife testified that the
defendants 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 Owenss 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
Greens 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
courts instructions erroneously shifted the burden of proof
relative to the defendants assertion of self-defense and
whether the jurys having had unfettered access to the Green
videotaped interview violated the defendants federal and
state constitutional rights to due process and a fair trial.
II.
[¶10]
The jury was instructed on the defendants 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 prosecutions burden of proof with regard to the elements
of each offense, which included committing the other
Page 415
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 defendants 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 defendants
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 defendants 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 prosecutions burden to disprove an
affirmative defense to the jurys 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
defenses availability or applicability effectively permitted
the jury to absolve the prosecution of its burden to disprove
the defense and therefore its duty to
Page 416
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 prosecutions 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 prosecutions 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 instructions 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 defendants
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 prosecutions burden. The jury was expressly
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