People v. Huckleberry, 87SC49

• Decision Date: 21 February 1989
• Docket Number: No. 87SC49,87SC49
• Citation: 768 P.2d 1235
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. John Francis HUCKLEBERRY, Respondent.
• Court: Colorado Supreme Court

Page 1235

768 P.2d 1235

The PEOPLE of the State of Colorado, Petitioner, v. John Francis HUCKLEBERRY, Respondent.

No. 87SC49.

Supreme Court of Colorado En Banc.

Feb. 21, 1989.

Rehearing Denied March 13, 1989.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Peter J. Stapp, Asst. Atty. Gen., Denver, for petitioner.

David F. Vela, Colorado State Public Defender and Barbara S. Blackman, Chief Appellate Deputy Public Defender, Denver, for respondent.

KIRSHBAUM, Justice.

The petitioner, John Francis Huckleberry (Huckleberry), was convicted in El Paso County District Court of first degree murder, in violation of section 18-3-102, 8B C.R.S. (1986), and a crime of violence, in violation of section 16-11-309, 8A C.R.S. (1986). The Court of Appeals reversed the conviction in People v. Huckleberry, 738 P.2d 17 (Colo.App.1986), holding that the trial court committed reversible error by failing to give a jury instruction on the affirmative defense of alibi and by admitting hearsay statements of the victim. Having granted certiorari to review the decision of the Court of Appeals, we reverse and remand with directions.

I

On November 29, 1983, at approximately 12:36 a.m., Officer Wilkinson of the Colorado Springs Police Department was dispatched to the 7400 block of Lexington Avenue in Colorado Springs. Upon arriving, he observed a blue Toyota station wagon parked along the edge of the street, partially lifted by a jack and missing the left front tire. Wilkinson also discovered the body of Beverly Huckleberry (Beverly) lying in a tire track in a nearby snow-covered field. She had died as the result of massive skull injuries.

Police investigators later matched the tire tread marks in the field to those of a Ford pickup owned by the Osborn Toyota dealership where Huckleberry worked. On December 29, 1983, Huckleberry was charged with first degree murder after deliberation and a crime of violence in connection with the death of his wife.

A jury trial commenced on July 30, 1984. The People argued that Huckleberry incapacitated his wife, placed her in the field, and then deliberately drove the truck over her.

During the trial, Suzanne Somma (Somma), a friend of the Huckleberrys, testified regarding a conversation she had with Huckleberry on November 29, 1983--the day Beverly's body was discovered. She testified that she told Huckleberry that she had met with Beverly on the evening of November 28 and that during the meeting Beverly stated that Huckleberry had given Beverly a truck from his dealership to drive when he discovered that Beverly's car had a flat tire. Somma also testified that Huckleberry responded to her comments by disputing that Beverly drove a truck the prior evening, requesting Somma to say that Beverly was actually driving the truck on November 27 rather than November 28, and warning Somma not to tell police officials about the truck or they would "hang him for sure."

Defense counsel objected to these portions of Somma's testimony describing her conversation with the victim, arguing that any statements made by Beverly to Somma were inadmissible hearsay. The trial court overruled the objections and instructed the jury that the statements were admitted only "for the purpose of enabling [the jurors] to understand the nature of the conversation and response between [Somma] and [Huckleberry]," and were not to be considered for the truth of their content. The judge subsequently denied defense counsel's motion for a mistrial based on the admission of this testimony.

At the close of the trial, the jury was instructed as to the elements of the offenses with which Huckleberry had been charged and that the People had the burden of proving each of the elements beyond a reasonable doubt. Huckleberry tendered the following instruction:

Evidence has been introduced tending to establish an alibi which amounts to a contention that John F. Huckleberry was not present at the time when or at the place where he is alleged to have committed the offense charged.

If after consideration of all the evidence in the case you have a reasonable doubt whether the defendant was present at the time and place the alleged offense was committed, you must acquit him. The jury will always bear in mind that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witness or producing any evidence.

The trial court rejected this instruction, concluding that the defense of alibi is not an affirmative defense meriting a separate jury instruction, but rather reinforces a plea of not guilty by emphasizing that the defendant was not present when the offense occurred. The trial court then offered to give the jury an instruction stating, in pertinent part, as follows:

It is defendant's position that evidence was introduced showing he was not present at the time and place where the crime is alleged to have been committed.

The burden is upon the People to prove each and every element of the charge as explained at Instruction # ___ beyond a reasonable doubt.

Huckleberry rejected this proposed instruction on the ground that "it would create at least an impression of shifting the burden of proof [and] that we have the necessity of proving something here." The jury found Huckleberry guilty of both offenses.

Huckleberry filed an appeal with the Court of Appeals alleging, inter alia, that the trial court erred by failing to give his tendered instruction on the affirmative defense of alibi and by overruling his objections to the hearsay statements of the victim. ¹ Relying on its earlier decisions in People v. Rex, 689 P.2d 669 (Colo.App.), cert. denied (1984), and People v. Villa, 43 Colo.App. 284, 605 P.2d 481 (1979), cert. denied (1980), the Court of Appeals held that the concept of alibi is an affirmative defense and that the trial court's failure to instruct the jury pursuant to section 18-1-407, 8BC.R.S. (1986) ² and CJI-Crim 7:01 ³ that the People had the burden of refuting the alibi beyond a reasonable doubt constituted reversible error. The Court of Appeals also held that Somma's testimony repeating what Beverly had told her on November 28, 1983, constituted hearsay evidence and was not admissible. However, in light of the trial court's determination that the statements were necessary to assist the jury, the Court of Appeals observed that on retrial the statements might prove admissible under another provision of the Colorado Rules of Evidence. The Court of Appeals then reversed the judgment of the trial court and remanded the case for a new trial.

II

The People argue that the Court of Appeals erroneously declared the defense of alibi to be an affirmative defense requiring a jury instruction pursuant to section 18-1-407, 8B C.R.S. (1986), and CJI-Crim. 7:01. We agree.

Whether a particular defense is an affirmative defense has significance for determining what jury instructions, if any, must be given concerning the burden of proof regarding the matter raised as a defense. A defendant who introduces some credible evidence of an affirmative defense is entitled to an instruction informing the jury that the prosecution "has the burden of proving the guilt of the defendant ... beyond a reasonable doubt as to the affirmative defense, as well as to all the elements of the crime charged." § 18-1-407, 8B C.R.S. (1986); CJI-Crim. 7:01; People v. Ledman, 622 P.2d 534, 538 (Colo.1981); People v. Taggart, 621 P.2d 1375, 1384 (Colo.1981). If no affirmative defense has been raised, the defendant is not entitled to this instruction.

The defense of alibi has been defined as "[a] defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party." Black's Law Dictionary 66 (5th ed. 1979). See Foster v. People, 56 Colo. 452, 139 P. 10 (1914); Wisdom v. People, 11 Colo. 170, 17 P. 519 (1887). An alibi defense essentially denies that the defendant committed the act charged, while an affirmative defense basically admits the doing of the act charged but seeks to justify, excuse or mitigate it. See Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.), cert. denied, 459 U.S. 853, 103 S.Ct. 119, 74 L.Ed.2d 104 (1982), overruled on other grounds, Meadows v. Holland, 831 F.2d 493 (4th Cir.1987); United States v. Parr, 516 F.2d 458 (5th Cir.1975); People v. Gallegos, 628 P.2d 999 (Colo.1981). This distinction between an affirmative defense and a defense in the nature of a traverse was recognized by this court in the early decision of McNamara v. People, 24 Colo. 61, 48 P. 541 (1897). In McNamara, wherein we reversed a judgment of conviction of the offense of assault to rob because of the trial court's erroneous instruction concerning the alibi defense raised by the defendant, we reviewed conflicting authority on the issue and concluded that the defense of alibi is not an affirmative defense.

Most jurisdictions that have addressed this issue have concluded that the defense of alibi is not an affirmative defense. See, e.g., Adkins v. Bordenkircher, 674 F.2d at 279; Robertson v. Warden, 466 F.Supp. 262 (D.Md.1979), cert. denied, 449 U.S. 961, 101 S.Ct. 376, 66 L.Ed.2d 229 (1980); Doisher v. State, 632 P.2d 242 (Alaska App.1981); Harkness v. State, 267 Ark. 274, 590 S.W.2d 277 (1979); Jackson v. State, 374 A.2d 1 (Del.1977); People v. Rivera, 72 Ill.App.3d 1027, 28 Ill.Dec. 669, 390 N.E.2d 1259 (1979); Williams v. State, 99 Nev. 797, 671 P.2d 635 (1983) ("a complete and direct denial of the state's case"); Christian v. State, 555 S.W.2d 863 (Tenn.1977) (alibi is simply "a type of evidence offered in behalf of the accused"); Miller v. State, 660 S.W.2d 95 (Tex.Crim.App.1983); State v. Romero, 554 P.2d 216 (Utah 1976). A few courts, however, have characterized the defense of alibi as an affirmative defense. See, e.g., Simmons v. Dalsheim, 543 F.Supp. 729 (S.D.N.Y.1982...