People v. Hennion, 94CA1454

• Decision Date: 21 December 1995
• Docket Number: No. 94CA1454,94CA1454
• Citation: 923 P.2d 256
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas J. HENNION, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 256

923 P.2d 256

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas J. HENNION, Defendant-Appellant.

No. 94CA1454.

Colorado Court of Appeals,

Div. I.

Dec. 21, 1995.

Rehearing Denied Feb. 1, 1996.

Certiorari Denied Sept. 3, 1996.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Catherine P. Adkisson, Assistant Attorney General, Denver, for Plaintiff-Appellee.

Shelley Gilman, Denver, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, Thomas J. Hennion, appeals from the judgment of the trial court entered upon jury verdicts finding him guilty of attempted second degree murder and crime of violence. We affirm.

According to the prosecution's evidence, defendant and his wife (victim) began to experience marital problems and, in October 1992, victim filed a petition for dissolution. Over the following months, the dissolution action became very emotionally charged, especially over financial issues and the issue of child custody. In March 1993, defendant made threats towards the victim, telling her that he would "get rid of her permanently." His statements were accompanied by a hand signal mimicking a gun.

On September 28, 1993, victim was in her driveway preparing to take their two-year-old daughter to a scheduled visitation with defendant. As victim walked toward the car, she saw defendant crouched by a fence holding a backpack.

Victim ran toward the house, carrying their daughter and screaming. Defendant then ordered the victim into the house, told her he had a gun, and said, "I'll blow your head off. And if anyone else comes, I'll blow us all away." The defendant then pulled out the gun and made continuing threats with the gun pointed at the victim. During the extended incident, defendant placed the gun at the victim's neck two times and pulled the trigger, but the gun would not fire.

At trial, defendant presented a very different version of the events. Basically, he claimed he was very depressed about the child custody arrangement and formed a plan to kill himself. He conceded that he had encountered the victim at her house, but denied ever pointing the gun at the victim and maintained that he had only used it in attempts to kill himself.

I.

Defendant first contends that the trial court erred in refusing to instruct the jury on the lesser offenses of attempted heat of passion manslaughter and attempted reckless manslaughter. We disagree.

A trial court is not required to give a lesser included or lesser non-included offense instruction unless there is some evidence tending to establish the lesser offense and there is a rational basis upon which the jury may acquit the defendant of the greater offense but convict him of the lesser. Jones v. People, 711 P.2d 1270 (Colo.1986).

A.

Attempted Heat of Passion Manslaughter

Attempted heat of passion manslaughter is not a lesser included offense of attempted second degree murder because the establishment of the essential elements of the greater offense of attempted second degree murder do not necessarily establish all of the elements required to prove the lesser offense of attempted heat of passion manslaughter. See People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974); People v. Skinner, 825 P.2d 1045 (Colo.App.1991) (comparing lesser included with lesser non-included offenses). See also People v. Rosales, 911 P.2d 644 (Colo.App.1995); People v. Seigler, 832 P.2d 980 (Colo.App.1991).

In order for a defendant to be entitled to a heat of passion manslaughter instruction, the evidence must establish: (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." People v. Garcia, 826 P.2d 1259 (Colo.1992); § 18-3-104(1)(c), C.R.S. (1995 Cum.Supp.).

Here, victim testified that defendant deliberately and repeatedly tried to kill her by putting the gun to her neck and pulling the trigger. Defendant testified that he had no intent to kill victim and did not point the gun at her, only at his own head and at the ground. Rather, he claimed that he went to talk to her and, when she started to scream, he decided to kill himself. Nor was there was any evidence that defendant's actions were caused by a "serious and highly provoking act" of victim.

Under this state of the record, there was no evidence to show attempted heat of passion manslaughter. Thus, the trial court did not err in refusing to give defendant's tendered instruction.

B.

Reckless Manslaughter

A person commits the crime of manslaughter by recklessly causing the death of another person. Section 18-3-104(1)(a), C.R.S. (1995 Cum.Supp.). Persons act "recklessly" when they consciously disregard a substantial and unjustifiable risk that a result will occur or that a circumstance exists. Section 18-1-501(8), C.R.S. (1986 Repl.Vol. 8B).

Attempted reckless manslaughter requires: (1) that the accused have the intent to commit the underlying offense of reckless manslaughter; (2) that he or she commence and sufficiently pursue the risk producing act or conduct so as to constitute a "substantial step toward the commission of the offense"; and (3) that he or she engage in the requisite acts or conduct "with the kind of culpability otherwise required for the commission of the underlying offense," that is, with a conscious disregard of a substantial and unjustifiable risk that the acts or conduct will cause the death of another person. See People v. Thomas, 729 P.2d 972 (Colo.1986); § 18-2-101(1), C.R.S. (1986 Repl.Vol. 8B). Thus, attempted reckless manslaughter is a lesser-included offense of attempted second degree murder.

As previously stated, however, defendant denied ever pointing the gun in victim's direction, maintaining that he pointed it only at his own head or at the ground. He further testified that each time he put the gun to his head and pulled the trigger it failed to discharge. On the other hand, the prosecution's evidence demonstrated an intent to kill.

Under these circumstances, there was not evidence probative of all the elements of attempted reckless manslaughter. Thus, the trial court did not err in refusing the tendered instruction on that offense.

II.

Defendant next contends the trial court's introductory remarks to the jury about the appellate process were so prejudicial as to require a reversal of his convictions. We disagree.

Initially, we note that defendant did not object to the comments made by the trial court and, thus, the appropriate standard of review is plain error. Plain error is that which so undermines the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. Harris v. People, 888 P.2d 259 (Colo.1995).

During its introductory remarks to the jury, the trial court gave a lengthy general overview of the trial process. As part of the trial court's explanation of that process, it stated:

In a jury trial, a judge and a jury are in [a] sense partners in deciding the case. A judge's role is technical. It's the duty of the judge to decide what law is applicable to this case and under that law to decide what evidence may properly be presented to you. The jury is the finder of fact. Guided by the law as I explain it to you, you decide what has been proved or not proved in this case.

However, in that partnership, the role of the jury is far more important than that of a judge for this reason: If I should make a technical error of law, the case could be appealed to the Court of Appeals or Colorado Supreme Court and if an error has been made, it would be reversed, sent back to me, and I would be told to do the case over again and to do it properly. Your finding of fact, on the other hand, will not be reviewed by anyone. Whatever you determine to be the facts of the case will bind the case, and that makes you the most important persons in this courtroom. (emphasis added)

As a general rule, trial courts should avoid making unnecessary references to reviewing courts, and the probability of reversal upon appeal, while in the presence of...