People v. Petschow
| Decision Date | 06 September 2005 |
| Docket Number | No. 01CA1684.,01CA1684. |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jeremy Michael PETSCHOW, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Ken Salazar, Attorney General, Wendy J. Ritz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David S. Kaplan, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by Judge CARPARELLI.
Defendant, Jeremy Michael Petschow, appeals the judgment of conviction, entered after a jury trial, of two counts of attempted first degree murder, two counts of attempted first degree assault, first degree burglary, conspiracy to commit first degree burglary, possession of burglary tools, twelve counts of second degree burglary of a dwelling, four counts of aggravated motor vehicle theft, four counts of theft, six crime of violence counts, possession of a weapon by a previous offender, possession of a weapon by a previous offender (repeat offense), and three habitual criminal counts. We affirm in part, reverse in part, and remand.
The evidence showed that defendant and two cohorts committed multiple burglaries and car thefts. In one burglary, defendant broke into a home after he concluded that the residents were not in. However, once defendant was inside, he was confronted by a man armed with a pistol. Defendant, who was also armed, fired six shots in the direction of the man and his wife and wounded the man before escaping.
On appeal, defendant contends that the trial court did not correctly instruct the jury regarding the mens rea elements of attempted murder, attempted assault, burglary, and theft. Although we conclude that the trial court erred regarding the elements of attempted murder and attempted assault, defendant did not object at trial, and we conclude the error did not affect defendant's substantial rights.
A trial court must instruct the jury as to each element of a charged offense. People v. Mattas, 645 P.2d 254 (Colo.1982). When a trial court misinstructs the jury regarding an element of an offense, it commits constitutional trial error. Griego v. People, 19 P.3d 1 (Colo.2001); People v. Dunlap, 975 P.2d 723 (Colo.1999). Constitutional error that results from an omitted or erroneous elemental instruction is subject to constitutional harmless or plain error analysis. Griego v. People, supra; People v. Dunlap, supra.
However, omission or erroneous description of the required mens rea does not render an instruction constitutionally deficient when the instructions taken as a whole clearly instruct the jury regarding the omitted or erroneous element. People v. Mattas, supra; People v. Martinez, 634 P.2d 26 (Colo.1981); Gonzales v. People, 166 Colo. 557, 445 P.2d 74 (1968); People v. Ward, 673 P.2d 47 (Colo.App.1983).
In accordance with the contemporaneous objection rule, "[a]n accused may not withhold his objections until completion of his trial and after conviction, and later complain of matters which, if he had made a timely objection, would have allowed the trial court to take corrective action." People v. Rollins, 892 P.2d 866, 874 n. 13 (Colo.1995). With regard to jury instructions, a defendant must object before the instructions are given to the jury and only the objections made at trial may be considered on review. Crim. P. 30. Without these rules, a defendant could intentionally withhold an objection to a constitutional deficiency, on appeal argue that the error was not harmless beyond a reasonable doubt, and thus, unfairly manipulate the judicial process. See United States v. Stewart, 256 F.3d 231 (4th Cir.2001).
Therefore, a defendant who fails to object may forfeit the right to appeal a constitutionally deficient jury instruction. See United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Lieberman v. Washington, 128 F.3d 1085 (7th Cir.1997)(contemporaneous objection principles are not cast aside simply because a constitutional right might be lost).
We may notice errors that are plain and affect substantial rights although they were not brought to the attention of the trial court. Crim. P. 52(b).
In a case in which the defendant's Fifth and Sixth Amendment rights were violated and the defendant did not object at trial, the United States Supreme Court stated that "before an appellate court can correct an error not raised at trial, there must be (1) `error,' (2) that is `plain,' and (3) that `affect[s] substantial rights.'" Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997)(quoting United States v. Olano, supra, 507 U.S. at 732, 113 S.Ct. at 1776); Fed.R.Crim.P. 52(b); see also United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995).
Error is plain when it is "obvious, substantial, and grave." People v. Salyer, 80 P.3d 831, 838 (Colo.App.2003).
When there is a plain error and it affects substantial rights, we reverse only if after reviewing the entire record, we "can say with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." People v. Ramirez, 56 P.3d 89, 93 (Colo.2002)(quoting Wilson v. People, 743 P.2d 415, 420 (Colo.1987)). However, the supreme court has also held that, when assessing a claim of error under a plain error standard of review, "if the issue raised is of constitutional dimension, then `reversal is required unless this court is convinced beyond a reasonable doubt that the error is harmless beyond a reasonable doubt.'" People v. Harlan, 8 P.3d 448, 490 (Colo.2000)(quoting People v. Davis, 794 P.2d 159, 189 (Colo.1990)).
Thus, when the defendant asserts on appeal that an error is of constitutional dimension, we must first determine whether there was an error, and, if so, whether it was plain, and whether it affected the defendant's substantial rights. When we conclude that there was plain error that affected substantial rights, we must then apply the correct standard to determine whether reversal is required. See Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); Johnson v. United States, supra; United States v. Olano, supra; United States v. Robinson, 485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988)(when there is no contemporaneous objection to prosecutor's remarks that violate a constitutional right, the reviewing court must decide whether the violation constituted plain error); United States v. Lott, 310 F.3d 1231 (10th Cir.2002); United States v. Perez, 989 F.2d 1574 (10th Cir.1993); United States v. Burson, 952 F.2d 1196 (10th Cir.1991); United States v. Jefferson, 925 F.2d 1242 (10th Cir.1991); People v. Garcia, 28 P.3d 340, 344 (Colo.2001)("If a defendant lodges no objection to a trial court's jury instruction, a plain error standard should be applied in reviewing the instruction."); Griego v. People, supra; People v. Harlan, supra; People v. Dunlap, supra ().
Defendant challenges the attempted first degree murder and the attempted first degree assault instructions. We perceive no reversible error.
"[C]ulpability for criminal attempt rests primarily upon the actor's purpose to cause harmful consequences." People v. Krovarz, 697 P.2d 378, 381 (Colo.1985); see also Gann v. People, 736 P.2d 37 (Colo.1987). Consequently, "to be guilty of criminal attempt, the actor must act with the kind of culpability otherwise required for commission of the underlying offense and must engage in the conduct which constitutes the substantial step with the further intent to perform acts which, if completed, would constitute the underlying offense." People v. Frysig, 628 P.2d 1004, 1010 (Colo.1981).
Consistent with these rulings, § 18-2-101(1), C.R.S.2003, states, "A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense."
Defendant contends that the instruction regarding attempted first degree murder did not include as an element that he acted after deliberation and with the intent to cause the death of another person. We conclude that the instruction was erroneous, but the error did not affect defendant's substantial rights.
In Gann v. People, supra, the court considered the same challenge defendant makes here. There, the trial court instructed the jury as follows:
A person commits the crime of criminal attempt if:
With intent he engages in conduct constituting a substantial step toward the commission of first-degree murder.
The elements of Criminal Attempt are therefore:
(1) With intent,
(2) Engages in conduct constituting a substantial step toward the commission of Murder in the First-Degree.
Gann v. People, supra, 736 P.2d at 38.
The supreme court concluded that the instruction was erroneous because it "omitted any reference to the requirement that the defendant must have acted after deliberation and with the intent to kill." Gann v. People, supra, 736 P.2d at 39.
Here, with regard to mens rea, the court instructed the jury that, to find defendant guilty, it was required to conclude that defendant "intentionally" engaged in conduct constituting a substantial step toward the commission of murder in the first degree.
The court also instructed the jury that "[a] substantial step is any conduct, whether act, omission or possession, which is strongly corroborative of the firmness of...
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