People v. Garcia, 91SC39

• Decision Date: 10 March 1992
• Docket Number: No. 91SC39,91SC39
• Citation: 826 P.2d 1259
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Lawrence C. GARCIA, Respondent.
• Court: Colorado Supreme Court

Page 1259

826 P.2d 1259

The PEOPLE of the State of Colorado, Petitioner, v. Lawrence C. GARCIA, Respondent.

No. 91SC39.

Supreme Court of Colorado En Banc.

March 10, 1992.

Rehearing Denied April 6, 1992.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Daniel J. Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Douglas J. Friednash, Sp. Asst. Atty. Gen., Denver, for petitioner.

David F. Vela, Colo. State Public Defender, Kathleen A. Lord, Deputy State Public Defender, Denver, for respondent.

Justice ERICKSON delivered the Opinion of the Court.

Defendant Lawrence C. Garcia was charged and convicted by a jury of second-degree murder ¹ and crime of violence ² for the stabbing death of L.C. The trial court imposed a sentence of twenty-four years and one day. The court of appeals reversed Garcia's conviction and remanded for a new trial for the failure of the trial court to instruct the jury on "heat of passion" manslaughter. ³ People v. Garcia, 809 P.2d 1038 (Colo.App.1990). The trial court was also given instructions by the court of appeals on conducting the new trial regarding: (1) hearsay evidence under the excited utterance exception of CRE 803(2), (2) closing argument by the prosecution, and (3) the absence of the trial judge during the introduction of videotaped evidence. Based upon our review of the record, we conclude that the failure to give a heat of passion manslaughter instruction was not error. We hold that none of the asserted errors, which were the subject of the advisory instructions given by the court of appeals, constitutes reversible error. Accordingly, we reverse the court of appeals and return this case to the court of appeals with directions to reinstate the judgment of conviction and sentence imposed on Garcia by the district court.

I

Garcia lived in a two-story apartment with L.C., who was four months pregnant with his child, and with L.C.'s two-year-old-son. The kitchen and living room were located on the first floor. The second floor had two bedrooms and a bathroom. The front bedroom in the apartment was occupied by L.C., her son, and Garcia. During the early morning hours on July 2, 1987, the rear bedroom was occupied by L.C.'s sister and her two children, and by L.C.'s cousin and her child. At approximately 1:30 a.m., L.C.'s cousin heard the muffled sounds of an argument between Garcia and L.C. coming from the front bedroom and heard L.C. scream. L.C.'s sister heard loud voices coming from downstairs, but was unsure whether one of the voices belonged to Garcia, and also heard L.C. scream.

Shortly after 1:30 a.m., L.C., after an argument with Garcia, suffered a single stab wound to the chest with a kitchen knife. The stabbing occurred on the first floor of the apartment. The serrated kitchen knife that inflicted the wound was found in the living room on the back of the sofa near a pool of blood. After the stabbing, L.C. was able to climb the stairs and enter the back bedroom. When she appeared on the second floor, she was bleeding profusely and her son held on to her leg. Her only statement before she lost consciousness was, "He stabbed me."

L.C. was dead on arrival at the hospital from loss of blood and suffocation. When the police concluded their investigation, Garcia was taken to the police station for questioning.

Garcia's First Statement

At 7:05 a.m., Garcia gave a statement which the investigating officers recorded on videotape. He told the officers that after he made love to L.C., she went downstairs to the kitchen to get a glass of ice water. Garcia said that when he heard L.C. scream, he put on his shorts and went to the landing. He said he saw L.C. being held from behind by an Hispanic male with shoulder-length bushy and curly black hair, who was wearing blue jeans but no shirt. He yelled, "Who is that?" L.C. cried, "Don't come down here, babe!" Garcia then went into L.C.'s bedroom to get his baseball bat. As he returned to the landing, L.C. came up the stairs, holding her hands over a bleeding wound, and said, "He stabbed me."

Two days after L.C.'s death, her father and his wife took L.C.'s two-year-old son with them when they went to the funeral home to view L.C.'s body. Upon seeing his mother in the casket, the child started crying. When they left the funeral home, the son said to his grandfather, "Daddy did it." ⁴ One week after L.C.'s death, the child saw a photograph of his mother on the wall of his grandfather's house and said to his grandfather, "mama crying, mama and daddy fighting, mama bleeding."

Garcia's Second Statement

On July 9, Garcia went to the police station and the investigating officers confronted him with inconsistencies in his earlier statement and with L.C.'s son's statement that, "Daddy did it." Garcia became visibly upset and admitted he had stabbed L.C. He made a second videotaped statement in which he related a substantially different version of the events that took place on the night of L.C.'s stabbing. Garcia said that at approximately 11:35 p.m. he came home upset after playing baseball. Although family members and friends were visiting L.C., Garcia went upstairs, took a bath, and laid down in L.C.'s bedroom. L.C. came upstairs and asked him what was wrong. Garcia told her he was upset because he did not get to start the game. They talked for a while and then had sexual intercourse. Afterwards, L.C. told Garcia she had heard that he was still having sex with his former girlfriend. Garcia told L.C. he loved only her, but she insisted that he was being unfaithful. Garcia became distraught and exclaimed, "Babe, if you don't believe me, nobody believes me, it ain't worth livin'." He went downstairs to the kitchen and was followed by L.C. Garcia grabbed a knife and as he raised the knife above his head to stab himself in the chest, L.C. ran towards him crying, "Larry, no!" She grabbed his arm, but Garcia could not stop the knife and L.C. was stabbed in the chest.

When the investigating officers asked Garcia why he had given a different statement on the morning after the stabbing, he told them, "I was scared." He said that there had never been an intruder and that he had come up with the story after hearing a neighbor talk about seeing a curly-haired stranger wearing jeans but no shirt behind the apartment.

At trial, Garcia's theory of defense was that an intruder stabbed L.C. Garcia testified that the statement he made in the first videotaped interview was the truth and that the second statement was given while he was upset and depressed and was a lie. He claimed the second story was a product of "anything that popped into my head." In closing argument, defense counsel endeavored to convince the jury that the first statement was true and that the second statement was the product of Garcia's depression.

II

The court of appeals held that a heat of passion manslaughter instruction was required because there was "evidence from which the jury could have found that the defendant stabbed L.C. during an argument after she had falsely accused him of involvement with another woman sufficient to raise an irresistible passion in a reasonable person." People v. Garcia, 809 P.2d 1038, 1040 (Colo.App.1990). We disagree and reverse the court of appeals holding that Garcia was entitled to a heat of passion manslaughter instruction.

As a general rule, any credible evidence, no matter how "improbable, unreasonable or slight," which tends to reduce a homicide to manslaughter entitles a criminal defendant to a jury instruction on the lesser included offense. People v. Shaw, 646 P.2d 375, 380 (Colo.1982) (quoting Read v. People, 119 Colo. 506, 509, 205 P.2d 233, 235 (1949)); see also People v. Fuller, 781 P.2d 647, 651 (Colo.1990). We have noted that heat of passion manslaughter is technically not a lesser included offense of first- or second-degree murder. People v. Lewis, 676 P.2d 682, 688 (Colo.1984). Nevertheless, we have recognized that a defendant only needs to show some supporting evidence to be entitled to a heat of passion instruction. See Coston v. People, 633 P.2d 470, 472 (Colo.1981). The necessary supporting evidence, however, must establish four elements:

(1) [T]he act causing the death was performed upon a "sudden heat of passion," (2) caused by a "serious and highly provoking act of the intended victim," (3) which was sufficient "to excite an irresistible passion in a reasonable person," and (4) between the provocation and the killing, an insufficient "interval" of time passed for "the voice of reason and humanity to be heard."

Id.

Garcia's second videotaped interview, in which he stated that L.C. repeatedly accused him of sexual infidelity during an argument prior to the stabbing, provides the only evidence in the record which might support a heat of passion manslaughter instruction. ⁵ Garcia's testimony that the second videotaped interview was a fabrication and a lie is a binding judicial admission. In Kempter v. Hurd, 713 P.2d 1274, 1279 (Colo.1986), we defined judicial admission as

a formal, deliberate declaration which a party or his attorney makes in a judicial proceeding for the purpose of dispensing with proof of formal matters or of facts about which there is no real dispute. Judicial admissions are conclusive on the party making them and generally continue to have effect for a subsequent part of the same proceeding.

(Citations omitted and emphasis added.) The New Hampshire Supreme Court, in addressing a judicial admission, said:

[W]hen a party testifies to facts in regard to which he has special knowledge, such as his own motives, purposes, or knowledge or his reasons for acting as he did, the possibility that he may be honestly mistaken disappears. His testimony must be either true or deliberately false. To allow him to contradict his own testimony under these circumstances would not be "consistent with honesty and good faith." Whether his...