Kaufman v. People, No. 07SC70.

• Decision Date: 17 February 2009
• Docket Number: No. 07SC70.
• Citation: 202 P.3d 542
• Parties: Jesse Joe KAUFMAN, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

202 P.3d 542

Jesse Joe KAUFMAN, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 07SC70.

Supreme Court of Colorado, En Banc.

February 17, 2009.

Rehearing Denied March 16, 2009.

Law Office of Lisa Weisz, LLC, Lisa Weisz, Boulder, Colorado, Ridley, McGreevy & Weisz, P.C., Barrett T. Weisz, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Cheryl Hone Canaday, Assistant Attorney General, John Fuerst III, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.

Chief Justice MULLARKEY delivered the Opinion of the Court.

I. Introduction

We granted certiorari to review an unpublished court of appeals case to consider whether the court properly rejected alleged errors in the admission of evidence and the jury instructions in a criminal case.¹ Jesse Joe Kaufman, the defendant, was convicted of first-degree murder, attempted second-degree murder, and a crime of violence, and was sentenced to incarceration for life without parole plus twenty years.

At the trial of this case, the court instructed the jury, as part of the instructions on Kaufman's self-defense theory, on a definition of second-degree assault that was based upon a repealed version of the statute. We find that this instruction lessened the prosecution's burden of disproving Kaufman's affirmative defense of self-defense, thus constituting plain error and requiring reversal.

In addition, we address the court of appeals' rulings on the trial court's admission of other act evidence and its provision of jury instructions on the exceptions to self-defense because these issues may arise at a new trial. We conclude that some of the other act evidence, particularly Kaufman's knife collection, was improperly admitted under CRE 404(b), prejudicing the defense by painting a picture of Kaufman as an evil individual and allowing the jury to draw impermissible inferences of action in conformity with that nature. Moreover, we find there was not sufficient evidence to support the trial court's instruction to the jury on the mutual combat exception to self-defense.

Today, we reverse the court of appeals' decision on the basis of the erroneous second-degree assault instruction, and remand with directions to return the case to the trial court for a new trial. We address the other act evidence and the jury instruction on the mutual combat exception to self-defense so as to provide guidance on retrial. We do not reach the issue of cumulative error in this case.

II. Facts and Procedural History

Kaufman appeals his convictions for first-degree murder, section 18-3-102(1)(a), C.R.S. (2008); attempted second-degree murder, sections 18-2-101 and 18-3-103, C.R.S. (2008); and a crime of violence, section 18-1.3-406, C.R.S. (2008),² that stem from an altercation occurring in May 2003. While the parties presented differing accounts at trial regarding the specifics of the altercation, the parties agreed a fight occurred between two groups of people—Kaufman, his girlfriend Ursula Murray, and his friend Patrick Harrison; and Jason Kettle and his friend Christopher Walko. As a result of that fight, Kettle died of stab wounds to his liver and a puncture to his heart, and Walko suffered knife injuries to his chest and hand.

On the evening in question, Kaufman, Murray, and Harrison had drinks at two downtown Denver bars before going to the movies. They returned to the bars following the movie and continued drinking. By the time they decided to go home just before 2:00 a.m., all were fairly intoxicated. The three had driven two vehicles that evening. Kaufman and Murray were in Kaufman's pick-up truck, which was spray-painted with various designs, including a cartoon bunny, a cat, the number "23," the number "666," and the Star of David.³ Harrison drove in a separate car.

Meanwhile, Kettle and Walko spent the evening drinking and dancing at a bar just north of downtown. When that establishment closed, they decided to continue their night at a downtown bar and dance club. They arrived downtown in Kettle's truck just as Kaufman, Murray, and Harrison were leaving.

Although the above facts are largely undisputed, the parties presented differing theories as to the details of the altercation. The prosecution's general theory of the case is as follows. As Kaufman, Murray, and Harrison were getting into their vehicles, parked on a downtown street, Kettle and Walko walked past. Walko testified that he and Kettle were laughing and commenting to each other about the spray-painted symbols on Kaufman's truck. As they walked past, Murray, an allegedly confrontational drinker, started yelling at them. Kaufman convinced her to get inside his truck, and the vehicles started to pull away. Harrison, driving with open windows, claimed to have heard Kettle and Walko refer to Kaufman as a "kike." At the time, Kaufman did not hear the remark.

At the next traffic light, Harrison drove up next to Kaufman's truck and told him about the Jewish slur he had heard. Kaufman then turned around and drove the wrong direction down a one-way street to confront Kettle and Walko. Anticipating a fist fight, Harrison followed in his own car.

According to the prosecution, Kaufman stopped his car, jumped out, and began yelling about Kettle and Walko being "Jew-haters." Harrison stopped his car behind Kaufman's truck and also got out. There was conflicting testimony as to whether Murray ever got out of the truck. Words were exchanged between all of the parties. Walko testified that Kettle approached Kaufman with his arms in the air, and that he then saw Kettle bent over with Kaufman's left hand on his shoulder. Walko claimed that he grabbed Kettle and asked Kaufman what he was doing, at which point Kaufman stabbed Walko in the hand and chest. All of the prosecution's witnesses testified that neither Kettle nor Walko had a weapon. Walko immediately drove Kettle to the hospital where he was pronounced dead as a result of his injuries. Walko was treated for his own wounds.

At trial, Kaufman presented a different version of events, relying on a theory of self-defense. He testified that upon hearing from Harrison that Kettle and Walko had used an ethnic slur, he simply wanted to ask the men why they had a problem with Jewish people.⁴ Kaufman asserted that upon re-encountering Kettle and Walko, he merely asked the men why they had used the initial ethnic slur. Kettle responded by approaching Kaufman's window, stating "You're dead meat, kike." At that point, Murray got out of the truck and began yelling at Kettle and Walko. They then used an ethnic slur towards her as well.

Kaufman testified that he was fearful of the situation, and needed to defend both Murray and himself.⁵ He therefore jumped out of the truck with a pocket knife as Kettle and Walko continued to advance. Kaufman stated that Kettle reached behind his back before he swung at Kaufman. Believing Kettle was reaching for a weapon, Kaufman swung at Kettle with his knife. As Walko approached Kaufman, he swung at him as well in an attempt to protect himself and Murray.

Following the fight, Kaufman, Murray and Harrison returned to their vehicles and drove to Murray's home, where Kaufman attempted to destroy evidence of the altercation.⁶ The following day, Kaufman fled to Florida along with Murray's roommate. Police apprehended the two men four days later. Kaufman was arrested and charged with first-degree murder, attempted first-degree murder, and a crime of violence.

At trial, the prosecution painted Kaufman as a dangerous man, fascinated with knives and martial arts, who confronted Kettle and Walko with the intent to cause "precise, deliberate, and militaristic" injury. In his own defense, Kaufman testified that he never intended to fight the two men, but was forced to defend himself in the circumstances. The jury convicted Kaufman of first-degree murder of Kettle, attempted second-degree murder of Walko, and a crime of violence.

Kaufman appealed his convictions, alleging a number of errors with regard to jury instructions, admission of evidence, witness testimony, and prosecutorial statements made during closing. The court of appeals rejected his arguments and upheld Kaufman's convictions in a unanimous, unpublished opinion, concluding that either no error existed or that if any error did exist, it did not require reversal.

We granted certiorari to review the instructional and evidentiary errors alleged by Kaufman, and we now reverse.

III. Analysis

A. The Erroneous Second-Degree Assault Instruction

At trial, Kaufman's theory of the case was that he acted in self-defense against what he perceived to be an attack on him and Murray by both Kettle and Walko. Because of this theory, the jury was instructed on the use of deadly physical force as a means of defense. Under section 18-1-704(2)(a) and (c), C.R.S. (2008),⁷ a person is justified in using deadly physical force to defend him or herself only if that person reasonably believes that "a lesser degree of force is inadequate," and "has reasonable ground to believe, and does believe," that either the person or a third person "is in imminent danger of being killed or of receiving great bodily injury"; or the other person is committing or reasonably appears about to commit first- or second-degree assault. The jury instruction in Kaufman's case appropriately mirrored this self-defense statute. The problem arose, however, with regard to the instruction on the definition of second-degree assault.

Instruction # 25 defined second-degree assault as either (1) acting with the intent to cause serious bodily injury to another, and causing serious bodily injury to any person, or (2) acting with the intent to cause bodily injury to another person and causing such injury by means of a deadly weapon. All parties agree that the first part of the instruction erroneously paralleled a standard set forth in section 18-3-203(1)(a), a statute repealed in 1994, as...