People v. Gross

• Decision Date: 05 November 2012
• Docket Number: No. 10SC617.,10SC617.
• Parties: The PEOPLE of the State of Colorado, Petitioner v. Charles Anthony GROSS, Respondent.
• Court: Colorado Supreme Court

287 P.3d 105

2012 CO 60

The PEOPLE of the State of Colorado, Petitioner

v.Charles Anthony GROSS, Respondent.

No. 10SC617.

Supreme Court of Colorado, En Banc.

Oct. 1, 2012.

As Modified on Denial of Rehearing Nov. 5, 2012.

John W. Suthers, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, Attorneys for Petitioner.

Walta Harms & Dingle, LLC, Mark G. Walta, Denver, Colorado, Attorneys for Respondent.

Justice BOATRIGHT delivered the Opinion of the Court.

¶ 1 In this appeal, we review the court of appeals' unpublished decision in People v. Gross, 07CA2255, slip op. at 7, 2010 WL 1241162 (Colo.App. Apr. 1, 2010) (not selected for official publication), reversing the defendant's convictions arising out of a shooting at a campground. The court of appeals concluded that the trial court committed cumulative error by instructing the jury on the initial aggressor doctrine, which was requested by defense counsel; by allowing the prosecutor to argue that the defendant did not satisfy the duty to retreat, a requirement of the initial aggressor jury instruction; and by failing to instruct the jury that it could consider self-defense with respect to the crime of extreme indifference murder. In so holding, the court reasoned that the attorney incompetence exception to the invited error doctrine permits plain error review of a defense-tendered instruction. Gross, slip op. at 4–5. We now reverse.

¶ 2 We hold that the invited error doctrine precludes plain error review of a defense-tendered instruction. The attorney incompetence exception does not apply to deliberate, strategic acts of defense counsel but rather to inadvertent errors or oversights. Here, the invited error doctrine precludes the defendant from arguing that the trial court erred by giving the initial aggressor instruction because the defendant's trial counsel made a deliberate, strategic decision to request it. Likewise, the prosecutor's statements during closing argument about the duty to retreat—an aspect of the initial aggressor instruction—also may not be raised on appeal. In addition, the trial court should have instructed the jury on self-defense with respect to the crime of extreme indifference murder, but we hold that this error does not amount to plain error. Hence, we reverse the judgment of the court of appeals and return this case to that court for consideration of the two remaining issues that it did not previously address on appeal.

I. Facts and Procedural History

¶ 3 Mr. and Mrs. Madrid and their teenage son spent an afternoon camping on part of a double campsite, the other half of which was occupied by the defendant, Charles Gross. After dark, the Madrid family packed up their belongings, extinguished their fire, and prepared to leave. As they began to back out of the campsite in their truck, the defendant approached the passenger side of the vehicle, and Mrs. Madrid rolled down the window. The defendant asked whether the family was going to clean up the campsite before leaving. A verbal dispute ensued and quickly escalated; alarmed, Mrs. Madrid closed her window. As the family began to drive away, the defendant fired four shots at the vehicle, killing Mrs. Madrid and injuring Mr. Madrid. Police later found one bullet lodged in the headrest of the driver's seat and another in the truck's radiator.

¶ 4 At trial, the defendant testified that Mr. Madrid was hostile during the verbal exchange. He stated that he saw Mr. Madrid reach beneath the driver's seat for what he believed was a weapon. Then, when Mrs. Madrid closed the darkly-tinted passenger window, the defendant could no longer see into the cab. As he began to walk away, the defendant testified, the Madrids' vehicle rolled toward him. The defendant claimed that the combination of these factors caused him to fear for his life, and he fired several shots in response.

¶ 5 The trial court instructed the jury on the charged offenses of first-degree extreme indifference murder, attempted extreme indifference murder, and second-degree assault, as well as the lesser-included offenses of second-degree murder and manslaughter. At the defendant's insistence and over the prosecution's objection, the trial court also instructed the jury on self-defense ¹ and gave an initial aggressor instruction.² Both instructions limited the defenses to the charges of second-degree murder and second-degree assault. During closing argument, the prosecutor asserted that the defendant did not meet the second requirement of the initial aggressor instruction—withdrawal from the encounter—by twice stating that he “did not run away.”

¶ 6 A jury convicted the defendant of three counts involving extreme indifference murder as well as one count of second-degree assault.³ On appeal, the court of appeals concluded that the trial court committed cumulative error by instructing the jury on the initial aggressor doctrine, which was requested by defense counsel; by allowing the prosecutor to emphasize the defendant's duty to retreat during closing argument; and by failing to instruct the jury that self-defense could be considered with respect to the crime of extreme indifference murder. The court of appeals relied on People v. Stewart, 55 P.3d 107, 119 (Colo.2002), holding that the attorney incompetence exception to the invited error doctrine permits plain error review of a defense-tendered instruction. Gross, slip op. at 4–5. The court reversed the defendant's convictions, finding that the trial court's errors undermined the fundamental fairness of the trial. We granted the People's petition for certiorari review and now reverse.⁴

II. Analysis

¶ 7 First, the defendant argues that the attorney incompetence exception to the invited error doctrine permits his appeal of a jury instruction requested by his own counsel. He asserts that the trial court erred by instructing the jury on the initial aggressor doctrine because there was insufficient evidence to support it; the giving of this instruction prejudiced him because it added the requirements that he withdraw from the encounter and that he communicate his intent to do so. Additionally, the defendant claims that the prosecutor's argument about the duty to retreat, a requirement of the initial aggressor instruction, exacerbated the prejudice of the instructional error. Finally, the defendant contends that the trial court erred by failing to instruct the jury that it could consider self-defense with respect to the crime of extreme indifference murder. He argues that if this instruction had been given, then he could have argued that self-defense negated the element that the killing was done under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally. He maintains that the cumulative effect of these errors undermined the fundamental fairness of the trial itself and cast serious doubt on the reliability of the judgment.

A. Review of Defense–Tendered Jury Instruction

¶ 8 We first consider whether the attorney incompetence exception to the invited error doctrine permits plain error review of a defense-tendered instruction. Generally, the invited error doctrine precludes appellate review of errors created by a party. People v. Zapata, 779 P.2d 1307, 1309 (Colo.1989). We have long held that one “may not complain on appeal of an error that he has invited or injected into the case; he must abide the consequences of his acts.” Id. In Zapata, we treated a defense-tendered instruction that arguably misstated the burden of proof as invited error. We declined to consider the defendant's argument on appeal that the trial court erred in giving the instruction. Id. Similarly, in Gray v. People, we did not consider the defendant's assertion of error as to an instruction tendered by the defense and objected to by the prosecution, stating, “[W]e cannot consider the trial court to be in error for giving an instruction demanded by the defense.” 139 Colo. 583, 588, 342 P.2d 627, 630 (1959).

¶ 9 In People v. Stewart, we held that the invited error doctrine does not preclude appellate review of errors resulting from attorney incompetence. 55 P.3d at 119. In Stewart, the defendant faced multiple assault charges—including first-degree, second-degree, and vehicular assault—arising out of an incident in which he hit a pedestrian with his vehicle. Id. at 112. Defense counsel submitted a packet of proposed jury instructions, one of which identified intervening cause as an affirmative defense to vehicular assault. Defense counsel did not submit a similar instruction concerning intervening cause as an affirmative defense to first- and second-degree assault. Id. at 118. The trial court instructed the jury accordingly. Id. On appeal, the defendant argued that the trial court erred by failing to instruct the jury sua sponte that intervening cause also constituted an affirmative defense to first-and second-degree assault. Id. at 119. We held that the error resulted from counsel's oversight, that the appeal was not precluded by the invited error doctrine, and that it was reviewable: “[w]here it appears that an error or omission in jury instructions is due to inadvertence or attorney incompetence, the reviewing court should apply the doctrine of plain error.” Id. We distinguished such unintentional errors from strategic decisions: “[w]here, however, the omission is strategic, the invited error doctrine should be invoked.” Id. Thus, we permitted plain error review of omissions resulting from inadvertence or attorney incompetence; yet at the same time, we cautioned that “[where] a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position.” Id. at 119–20. While Stewart allowed for review of inadvertent errors or omissions, it did not modify the long-standing proposition that a...