BROWN v. People of The State of Colo.

• Decision Date: 20 September 2010
• Docket Number: No. 09SC680.,09SC680.
• Citation: 239 P.3d 764
• Parties: Ezamika BROWN, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

239 P.3d 764

Ezamika BROWN, Petitioner,

v.The PEOPLE of the State of Colorado, Respondent.

No. 09SC680.

Supreme Court of Colorado,En Banc.

Sept. 20, 2010.

Douglas K. Wilson, Public Defender, Rebecca Freyre, Deputy Public Defender, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Christopher Bosch, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.

Justice RICE delivered the Opinion of the Court.

The petitioner Ezamika Brown appeals his conviction for attempted first degree murder, arguing that the trial court reversibly erred when it denied his request for jury instructions on a lesser included offense and a related partial defense. The trial court ruled that a criminal defendant who maintains his innocence at trial is automatically barred from seeking instructions inconsistent with that theory of defense. The court of appeals rejected the lower court's reasoning, determining that section 18-1-408(6), C.R.S. (2009), enables a criminal defendant to seek an inconsistent jury instruction for which there is a rational basis in the evidence. Because the court of appeals found that there was no rational basis for either instruction, it held that the trial court's error was harmless. We affirm.

I. Facts and Proceedings Below

Brown and the victim, Jeanette Gabaldon, were engaged in a romantic relationship when Brown allegedly shot her three times at close range. Although the parties dispute many of the particulars regarding their relationship and the shooting that ended it, they agree that they lived together in Gabaldon's apartment in Denver for approximately one year. During that time, Brown supported himself by selling cocaine and crack cocaine. Gabaldon knew of Brown's occupation and allowed him to store the tools of his trade-cocaine, various drug paraphernalia, a hand gun, and ammunition-in her apartment.

Gabaldon testified that on the night of October 8, 2005, she discovered condoms and a set of hotel keys in Brown's jacket pocket, leading to a heated exchange, during which Brown and Gabaldon accused one another of infidelity. Once this initial romantic turbulence subsided, Brown and Gabaldon decided to take a pill of ecstasy and drive Gabaldon's car to a pool hall in downtown Denver. En route, the couple stopped at a liquor store and purchased a bottle of vodka, which Brown left unopened in the car when they arrived at the pool hall. Brown, Gabaldon, and several acquaintances began drinking and shooting pool. After several drinks, Brown revealed to a male acquaintance that he had, in fact, been unfaithful to Gabaldon. Gabaldon overheard their conversation, became irate, and demanded Brown return the keys to her car and to her apartment. Brown informed Gabaldon that, “[i]f you take your keys, this is [the] last time [that] you take them from me.” Gabaldon took the keys, and she and a female acquaintance exited the pool hall. Brown chased them outside and demanded that Gabaldon return the bottle of vodka. She gave him the bottle and left.

Gabaldon further testified that, on the morning of October 9, 2005, Brown-lacking keys or other means of entering Gabaldon's locked apartment-climbed onto a third-story balcony and entered through an unlocked sliding glass door. Gabaldon awoke to the sound of the door opening and soon found Brown in her bedroom. He stated, “[s]o you thought you would be safe here by yourself,” smashed her cell phone, and hurled the broken remains off the balcony. Brown then walked into the adjacent living room and began rummaging through the couch and entertainment center-places where, Gabaldon knew, he routinely stored drugs, money, and his hand gun. Brown soon returned, brandishing the weapon. Gabaldon told him, “I did nothing to you, Ezamika, I said nothing to you.” Brown responded by firing a shot inches away from her ear before shooting her in the hand, arm, and abdomen. Afterward, he fled.

Brown maintains that he never went to Gabaldon's apartment the morning of October 9, 2005. At trial, he testified that he left the pool hall and took a bus to a second bar, where he sold cocaine to a regular customer. Brown then took a cab to a motel near Gabaldon's apartment, where, as he had on several prior occasions, he checked in using a false name. Once in his room, he consumed most of the bottle of vodka, became sick from excessive drinking, and passed out.

Brown testified that he woke up at the motel the next morning and took a taxi to the Denver bus station. Shortly after 9:00 a.m., he purchased a one-way bus ticket to New York under a false name. After spending the day drinking and watching football, Brown boarded his bus at 6:00 p.m. ¹ During a scheduled stop in Iowa, local authorities removed Brown from the bus and placed him under arrest.

Brown was charged with attempted first degree murder. Throughout the ensuing trial, Brown steadfastly maintained his innocence:

Q: Did you ever go to [Gabaldon's apartment] on October 9th, 2005?

A: No, not at all.

Q: Did you ever climb up that balcony?

A: No, not at all.

Q: Did you shoot Jeanette Gabaldon?

A: No, not at all.

But prior to jury deliberation, Brown, via defense counsel, requested a jury instruction on the lesser included offense of attempted second degree murder as well as a related instruction on voluntary intoxication. Because Brown testified that he was innocent of all charges, the trial court ruled that he was automatically barred from seeking instructions inconsistent with that theory of defense. The jury convicted Brown as charged.

After distinguishing our opinion in People v. Garcia, 826 P.2d 1259 (Colo.1992) (holding that a defendant who testifies that he is innocent may not seek a conflicting jury instruction on a lesser non-included offense based on an earlier, sworn statement), the court of appeals held that section 18-1-408(6) allows a defendant who maintains his innocence to seek a jury instruction on a lesser included offense or a related partial defense provided that the law and facts reasonably support its issuance. However, because the record was devoid of evidence-other than Brown's own testimony-supporting either instruction, the court of appeals affirmed his conviction.

II. Standard of Review

A trial court's failure to provide a jury instruction after a defendant requests such instruction will be reviewed under the harmless error standard. See Mata-Medina v. People, 71 P.3d 973, 980 (Colo.2003). Applying this standard, reversal is warranted only if the error affected the defendant's substantial rights. Crim. P. 52(a). An error that fails to impact a defendant's substantial rights must be disregarded unless there is “a reasonable probability that it contributed to the defendant's conviction.” Mata-Medina, 71 P.3d at 980 (citing People v. Garcia, 28 P.3d 340, 344 (Colo.2001)).

III. Formulation of the Rule

A. The Statutory Test

As a preliminary manner, we must determine whether attempted second degree murder is a lesser included offense of attempted first degree murder. In so doing, we apply the statutory test, which mandates that “the greater offense must establish every essential element of the lesser included offense.” People v. Rivera, 186 Colo. 24, 27, 525 P.2d 431, 433 (1974) (citing Daniels v. People, 159 Colo. 190, 193, 411 P.2d 316, 317 (1966)). To secure a conviction for the crime of attempt, the People must prove beyond a reasonable doubt that the defendant possessed the culpable mental state required for the underlying offense and that the defendant took a substantial step toward completing the underlying offense. See § 18-2-101, C.R.S. (2009). Here, the underlying offenses-first degree murder and second degree murder-vary only in the culpable mental state required. Compare § 18-3-102(1)(a), C.R.S. (2009) (first degree murder requires causing death of another “[a]fter deliberation and with ... intent”) with § 18-3-103(1), C.R.S. (2009) (second degree murder requires “knowingly” causing death of another). Under Colorado law, the requirement that a defendant act knowingly is also satisfied where a defendant satisfies the more-exacting “intentional” standard. § 18-1-503(3), C.R.S. (2009) (“If acting knowingly suffices to establish an element, that element also is established if a person acts intentionally.”). As proof of attempted first degree murder necessarily establishes every element of attempted second degree murder, the latter is a lesser included offense of the former.

B. Lesser Included Offense

Next, we consider whether, and under what circumstances, a trial court may order a jury instruction on a lesser included offense where the instruction is inconsistent with a defendant's claim of innocence. In so deciding, we are mindful of the general principle that “a theory of the case instruction which permits the jury to find a defendant innocent of the principal charge and guilty of a lesser charge should be given when warranted by the evidence.” Rivera, 186 Colo. at 28, 525 P.2d at 434; see also Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988) (“As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.”). Nevertheless, a defendant's right to a lesser included offense instruction is not absolute.

In Garcia, the defendant was charged with first degree murder of the victim, his live-in girlfriend. 826 P.2d at 1260. The defendant maintained his innocence throughout the trial, claiming that the victim was stabbed by a third-party intruder. Id. at 1261. Then, just prior to deliberation, the defendant sought a heat-of-passion instruction based on a sworn statement he made to police before trial-that he accidentally stabbed the victim when she interrupted a suicide attempt-which he later testified was untrue. Id. at 1262. We affirmed the lower c...