People v. Nunez, 91SC576

• Decision Date: 09 November 1992
• Docket Number: No. 91SC576,91SC576
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Marcus A. NUNEZ, Respondent.
• Court: Colorado Supreme Court

Page 261

841 P.2d 261

The PEOPLE of the State of Colorado, Petitioner, v. Marcus A. NUNEZ, Respondent.

No. 91SC576.

Supreme Court of Colorado,

En Banc.

Nov. 9, 1992.

Rehearing Denied Dec. 14, 1992.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., A. William Bonner, Asst. Atty. Gen., Denver, for petitioner.

Springer and Steinberg, P.C., Harvey A. Steinberg, Denver, for respondent.

Justice ERICKSON delivered the Opinion of the Court.

The court of appeals in People v. Nunez, 824 P.2d 54 (Colo.App.1991), reversed the judgments of conviction and the sentences imposed on Marcus A. Nunez for aggravated robbery and crime of violence and ordered a new trial. The court of appeals concluded that a defendant is entitled to a properly worded instruction setting forth the defendant's theory of defense and that the trial court's failure to cooperate with counsel in preparing a proper instruction constituted reversible error. We granted certiorari and now affirm.

I

On December 31, 1987, Ernest Reeve answered the door at his house and encountered a man, dressed as a United Parcel Service driver, who stated that his truck had broken down and asked to use the phone. After attempting to make a phone call, the man placed a gun to Ernest Reeve's back and stated, "don't give me any trouble." The man threatened to kill Ernest Reeve and his wife, Dorothy, if they did not cooperate. After struggling with Ernest Reeve for approximately fifteen minutes, the assailant placed the couple in a basement room. Several minutes later, the couple escaped from the basement and discovered that the assailant had ransacked their home and fled.

In a search of the surrounding neighborhood, the police discovered a cardboard box containing a clipboard and an envelope addressed to Nunez. A fingerprint taken from the address sheet on the clipboard was positively identified as that of Nunez. The police also found a dresser drawer from the Reeve's home containing a jewelry box. A fingerprint taken from the jewelry box was similar to that of Nunez, although a positive identification could not be made.

Nunez was arrested and charged with aggravated robbery, ¹ and crime of violence (a predicate for mandatory sentence enhancement). ² At trial, the Reeves testified that neither of them had a good look at the assailant during the robbery. Dorothy Reeve, however, testified that the assailant's eyes and hair were similar to that of the defendant.

Nunez's defense was based on an alibi. Nunez filed a notice of alibi pursuant to section 16-7-102, 8A C.R.S. (1986). At trial, Nunez testified that he did not commit the crime and that at the time of the offense he was attending a New Year's Eve party. Four defense witnesses testified that they had seen Nunez at the party. Nunez also produced a telephone bill to show that he had placed a call to Minnesota shortly after the crime occurred.

Nunez tendered a jury instruction on alibi that provided:

Evidence has been introduced tending to establish an alibi which amounts to a contention that at the very time of the commission of the crime, Marcus Nunez was at another place under such circumstances that he could not, with ordinary exertion, have reached the place where the crime was committed.

If, after consideration of all the evidence in this 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 burden is upon the People to prove each and every element of the charge explained in the Instruction No. --- beyond a reasonable doubt.

The trial court, without explanation, wrote "rejected" on the tendered instruction and refused to give the instruction.

On appeal, the court of appeals concluded that the trial court properly refused to give the tendered instruction. The court of appeals nonetheless reversed the judgments of conviction based on its determination that the trial court committed reversible error by not cooperating with defense counsel in preparing a proper instruction.

II

We granted certiorari to decide whether the court of appeals erred in reversing the judgments of conviction based on the trial court's refusal to give a theory of the case instruction based on alibi, and if so, whether the error constitutes reversible error. We hold that the trial court's failure to give a theory of the case instruction on alibi constitutes reversible error.

A

The prosecution argues that the trial court properly refused to give Nunez's instruction based on an alibi theory of defense. The court of appeals agreed that the trial court correctly refused Nunez's tendered instruction but reversed the judgments of conviction based on the failure of the trial court to prepare a proper instruction on Nunez's alibi theory of defense.

In People v. Huckleberry, 768 P.2d 1235 (Colo.1989), we held that an alibi defense is not an affirmative defense and that the trial court properly denied an instruction based on section 18-1-407, 8B C.R.S. (1986), ³ that suggested that alibi was an affirmative defense. ⁴ We also noted that the trial court properly instructed the jury as to the prosecution's burden of proving the elements of the offenses charged. Huckleberry, 768 P.2d at 1239.

In Huckleberry, however, we did not address whether the trial court erred in failing to provide a theory of the case instruction. ⁵ Nor did we state that a defendant is not entitled to a theory of the case instruction based on an alibi defense. Instead, we held only that the defendant was not entitled to a separate affirmative defense instruction pursuant to section 18-1-407 based on an alibi defense.

Because Nunez's tendered instruction improperly suggested that alibi was an affirmative defense, we agree that the trial court properly refused to give the tendered instruction based on Huckleberry. However, the question of whether the trial court properly refused the instruction does not resolve the issue of whether the trial court erred in failing to provide a theory of the case instruction.

In Colorado, an instruction embodying a defendant's theory of the case must be given by the trial court if the record contains any evidence to support the theory. People v. Fuller, 781 P.2d 647, 651 (Colo.1989) (emphasis added). ⁶ The rationale underlying the general rule is the belief that it is for the jury and not the court to determine the truth of the defendant's theory. Fuller, 781 P.2d at 651. As a result, a criminal defendant is entitled to an instruction embodying his theory of the case even if the only supporting evidence is highly improbable testimony by the defendant. Id.

In order to effectuate the general rule, we have further held that a trial court has an affirmative obligation to cooperate with counsel to either correct the tendered theory of the case instruction or to incorporate the substance of such in an instruction drafted by the court. People v. Parsons, 199 Colo. 421, 422, 610 P.2d 93, 94 (1980); Nora v. People, 176 Colo. 454, 456, 491 P.2d 62, 64 (1971); Zarate v. People, 163 Colo. 205, 211, 429 P.2d 309, 312-13 (1967).

Colorado's approach to the necessity to instruct on a defendant's theory of the case is the general rule. See 2 Charles A. Wright, Federal Practice and Procedure: Criminal 2d § 482, at 689-91 (1982) (stating that a party is entitled to a specific instruction on his theory of the case if there is evidence to support it and a proper request is made). The federal circuits have unanimously concluded that a criminal defendant is entitled to a theory of defense instruction provided there is a foundation in the evidence for the instruction. ⁷

Despite the well-settled rule, the prosecution contends that "it is not error for the trial court to reject a defendant's theory of the case instruction when it merely reiterates a general denial, argumentatively restates the evidence presented, or when the tendered instruction is encompassed in the other instructions given by the court."

Previously, we have held that it is not error to reject a proposed jury instruction regarding a defendant's theory of the case if the theory is not supported by the evidence. ⁸ We have also held that it is not error for a judge to refuse a tendered jury instruction when that instruction is "encompassed" or "embodied" in the other instructions. ⁹ We have never held, however, that the jury instructions setting forth the elements of the offense and the burden of proof, standing alone, can encompass, embody, or take the place of a defendant's theory of the case. ¹⁰

There is no reason to depart from the general rule based on an alibi defense. ¹¹ A defendant is entitled to an instruction based on the theory of defense of alibi if the record contains evidence of alibi and the theory is not incorporated or included in other jury instructions. Jury instructions that merely set forth the elements of the offense and the burden of proof, without more, do not encompass a theory of defense. A trial court has an affirmative obligation to cooperate with counsel to either correct an alibi theory of the case instruction or to incorporate the substance of such an instruction in one drafted by the court.

The record contains substantial evidence to support Nunez's alibi theory of defense. In this case, the jury instructions set forth only the elements of the offense and the burden of proof and did not encompass or embody Nunez's defense of alibi. Moreover, the trial court failed to correct Nunez's tendered alibi instruction or to incorporate an alibi instruction in the other jury instructions.

Accordingly, we hold that the trial court erred in refusing to give an instruction based on Nunez's theory of defense of alibi. Having determined that the trial court erred in refusing to give an instruction based on Nunez's theory of defense of...