People v. Garcia, 88CA1405

• Decision Date: 30 August 1990
• Docket Number: No. 88CA1405,88CA1405
• Citation: 809 P.2d 1038
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lawrence G. GARCIA, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 1038

809 P.2d 1038

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lawrence G. GARCIA, Defendant-Appellant.

No. 88CA1405.

Colorado Court of Appeals Div. I.

Aug. 30, 1990.

As Modified on Denial of Rehearing Dec. 20, 1990.

Certiorari Granted April 22, 1991.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Douglas J. Friednash, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Kathleen A. Lord, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge SMITH.

Defendant, Lawrence C. Garcia, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree murder and a crime of violence. We reverse and remand for a new trial.

The evidence established that the victim was stabbed in the chest with a kitchen knife on the first floor of her home, and that, although she was able to walk upstairs, she died soon thereafter from loss of blood. Testimony from other witnesses indicated that defendant and the victim had been arguing before the stabbing occurred.

The defendant, in a videotaped interview, stated that the victim had been stabbed by an intruder. But, in a statement videotaped a week after the initial statement, he admitted that he stabbed the victim. However, he claimed that it occurred when he had attempted to stab himself during an argument with the victim, after she had accused him of infidelity, and that she had been stabbed accidentally when she interfered with his suicide attempt.

At trial, the theory of defense was predicated on the truth of the first videotape interview. However, defendant also requested an instruction on the lesser offense of heat of passion manslaughter, but the trial court refused to so instruct the jury.

During trial, the father of the victim was permitted to testify, over defendant's objection, as to hearsay statements made by the victim's 2-year old son. The first statement, "Daddy did it," was made two days after his mother's death, shortly after the boy had viewed his mother in her casket. The second statement, "Mama crying, Mama and Daddy fighting, Mama hurt," was made several days later, after the boy had seen a photograph of his mother. Although there was no direct evidence that the boy had witnessed the stabbing, the statements were admitted as excited utterances under CRE 803(2).

I.

On appeal, defendant first contends that the trial court erred in denying his request for an instruction on heat of passion manslaughter. We agree that such an instruction should have been given.

In a homicide case, an instruction on a lesser offense must be given if there is any evidence, no matter how improbable, unreasonable, or slight, to establish the lesser offense. People v. Shaw, 646 P.2d 375 (Colo.1982).

Heat of passion manslaughter is not a pure lesser included offense of either first degree murder or second degree murder because it includes an additional element, that the defendant was acting "upon a sudden heat of passion," which must be proven to the jury. People v. Lewis, 676 P.2d 682 (Colo.1984).

To be entitled to a heat of passion manslaughter instruction, the defendant must be able to point to some evidence, however slight, presented at trial which would permit a jury to find, in addition to concluding that the defendant knowingly killed the victim, that certain additional circumstances existed at the time the offense was committed. These additional factors include that:

"(1) the 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.' "

Coston v. People, 633 P.2d 470 (Colo.1981). See also § 18-3-104, C.R.S. (1986 Repl.Vol. 8B).

Here, the prosecution introduced the testimony of the victim's sister and cousin, both of whom testified to having heard the victim and defendant speaking loudly and arguing, shortly before they heard the victim scream. The second videotaped statement of defendant was also introduced, in which defendant states that he and the victim were arguing as the victim had accused defendant of involvement with another woman. Defendant stated in that videotaped interview that the victim was stabbed during the course of that argument, albeit accidentally, and that he was emotionally distraught at the time.

Although a manslaughter instruction is inconsistent with both defendant's theory at trial that an intruder stabbed the victim, and the claim of accident during the second videotaped interview, there was sufficient evidence from which the jury could have found that defendant stabbed the victim during an argument after she had falsely accused him of involvement with another woman, sufficient to raise an irresistible passion in a reasonable person. Thus, the failure, when requested, to instruct on heat of passion manslaughter mandates a new trial. See ...