People v. Cardenas, 98CA1944.
| Decision Date | 09 November 2000 |
| Docket Number | No. 98CA1944.,98CA1944. |
| Citation | 25 P.3d 1258 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Alexander CARDENAS, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Certiorari Denied July 2, 2001.1
Ken Salazar, Attorney General, Evan W. Jones, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
David S. Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.
Opinion by Judge TAUBMAN.
Defendant, Alexander Cardenas, appeals the judgment of conviction entered upon a jury verdict finding him guilty of second degree murder. We affirm.
On September 20, 1997, defendant called the police to report a homicide. When the police arrived, defendant admitted killing the victim, his long-time friend, following an evening of drinking, using drugs, and an altercation. The police read defendant an advisement form in accordance with the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and defendant initialed each paragraph. After the Miranda advisement, defendant made additional statements to the police, and four days later, he was charged with second degree murder.
At his first trial, the jury informed the court that it was deadlocked. Defendant moved for a mistrial. The court interviewed the foreperson, who told the court that the jury was divided as to whether he was guilty of second degree murder with heat of passion or whether defendant was not guilty. The trial court granted defendant's motion for a mistrial. The second trial resulted in the conviction at issue here.
Defendant first contends that his constitutional protection against double jeopardy was violated by the second trial because the jury in the first trial had impliedly acquitted him of the second degree murder charge. We disagree.
A defendant is impliedly acquitted of a greater offense when he or she is charged with greater and lesser offenses and the jury finds him or her guilty of only the lesser offense. An implied acquittal prevents retrial on the greater offense because a second trial would violate a defendant's constitutional protection against double jeopardy. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Ortiz v. District Court, 626 P.2d 642 (Colo.1981).
Second degree murder occurs when a person "knowingly causes the death of a person." Section 18-3-103(1), C.R.S.2000. A person acts knowingly when he or she "is aware that his conduct is of such nature or that such circumstance exists." A person also acts knowingly with respect to a result of his conduct "when he is aware that his conduct is practically certain to cause the result." Section 18-1-501(6), C.R.S.2000.
Second degree murder is a class two felony; however, it is reduced to a class three felony if jurors find a defendant acted with heat of passion. The heat of passion mitigator applies when death is "caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person . . . ." Section 18-3-103(3)(b), C.R.S.2000.
In order to consider the mitigating factor of heat of passion, the jury must first find that the elements of second degree murder have been shown by the evidence.
Here, upon learning in the first trial that the jury was deadlocked, the court engaged in the following dialogue with the jury foreperson:
Thereafter, the court declared a mistrial, but denied defendant's request that the jury render a verdict on second degree murder without heat of passion.
Defendant argues that, under the circumstances presented, the jury in the first trial impliedly acquitted him of second degree murder without heat of passion. We do not agree.
Here, the court instructed the jury on the provocation mitigator to second degree murder as follows:
Defendant is mistaken in his contention that the jury unanimously found him not guilty of second degree murder without heat of passion because some jurors had found him guilty of second degree murder, but had moved on to consider the mitigating factor of heat of passion and the others believed he was not guilty.
Because no evidence was presented to the contrary, we presume that the jury followed the instructions of the court, see People v. Ibarra, 849 P.2d 33 (Colo.1993),
and those jurors who believed defendant guilty of some offense first concluded he was guilty of second degree murder before they began to examine any mitigating factors.
Although defendant relies upon Ortiz v. District Court, supra,
to support his contention that he was impliedly acquitted of second degree murder without heat of passion, that case is distinguishable. In Ortiz, the jury returned a verdict convicting the defendant of the lesser offense of felony menacing without addressing the greater offenses of second and third degree assault. The supreme court held that this was an implied acquittal of the greater offense.
Here, unlike in Ortiz and Green v. United States, supra,
the jury in the first trial did not return any verdict. Thus, we hold that, without a verdict, there was no implied acquittal on the charge of second degree murder without heat of passion. Therefore, defendant's constitutional protection against double jeopardy was not violated.
In a related contention, defendant next argues that the trial court erred by failing to grant his motion for judgment of acquittal based on the finding of the jurors in the first trial that he was not guilty of second degree murder without heat of passion. However, since there was no implied acquittal, the court's rejection of defendant's motion was appropriate.
Defendant contends that the trial court erred when it refused to instruct the jury on lesser included offenses of reckless manslaughter and criminally negligent homicide. We disagree. Section 18-1-408(6), C.R.S.2000, provides that: "The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense."
It is proper for a trial court to deny a request to instruct the jury on a lesser included offense where the record does not present any evidence leading to a rational basis for acquitting a defendant of the greater offense and convicting him or her of the lesser offense. People v. Price, 969 P.2d 766 (Colo.App.1998). Such is the case here.
Although defendant argued that he acted in self-defense, he voluntarily confessed on two different occasions that he stabbed the victim to death. Furthermore, the record contains no evidence that he did not act knowingly, the requisite mental state for second degree murder.
Accordingly, we conclude that the trial court's rejection of instructions on reckless manslaughter and criminally negligent homicide was not error.
Defendant next argues that the trial court erred by admitting hearsay testimony about the victim's fear of defendant through the state of mind exception to the hearsay rule. We are not persuaded.
One exception to the prohibition against admitting hearsay testimony evidence at trial is the state of mind exception, under which a person may testify about another person's out-of-court statements to explain the declarant's state of mind. CRE 803(3).
Where evidence raises the issue whether the victim was the initial aggressor, evidence that the victim feared the defendant is probative to show that the victim was not the initial aggressor. People v. Madson, 638 P.2d 18 (Colo.1981).
A trial court is given considerable discretion in deciding questions concerning the admissibility of evidence and has broad discretion to determine the relevancy of evidence, its probative value, and its prejudicial impact. People v. Huckleberry, 768 P.2d 1235 (Colo.1989).
Absent an abuse of discretion, a trial court's evidentiary rulings will be affirmed. People v. Lowe, 660 P.2d 1261 (Colo. 1983). To show an abuse of discretion, an appellant must establish that the trial court's decision to admit the evidence was manifestly arbitrary, unreasonable, or unfair. King v. People, 785 P.2d 596 (Colo.1990).
Here, the victim's sister testified that, because defendant had become more aggressive and she thought he was using drugs, the victim had become increasingly afraid of defendant shortly before his death. Defendant's objections to the sister's testimony reporting the statements of the victim were overruled based upon the state of mind exception to the hearsay rule, and the jury was instructed to use this evidence only for the limited purpose of examining the victim's state of mind.
The first statement made by the witness, that the victim had said he was "getting afraid of" defendant, was properly admitted as state of mind evidence because it described the victim's then existing state of mind. This was particularly relevant because of defendant's theory of self-defense.
The second statement explained why the victim was afraid of the defendant. Any error with respect to...
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