People v. Pickering, 10SC446.

• Decision Date: 12 September 2011
• Docket Number: No. 10SC446.,10SC446.
• Parties: The PEOPLE of the State of Colorado, Petitioner v. Jerad Allen PICKERING, Respondent.
• Court: Colorado Supreme Court

276 P.3d 553

The PEOPLE of the State of Colorado, Petitioner

v.Jerad Allen PICKERING, Respondent.

No. 10SC446.

Supreme Court of Colorado,

En Banc.

Sept. 12, 2011.

John W. Suthers, Attorney General, John J. Fuerst, III, Senior Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado Attorneys for Petitioner.

Douglas K. Wilson, Public Defender, Ryann S. Hardman, Deputy Public Defender, Denver, Colorado, Attorneys for Respondent.

Justice RICE delivered the Opinion of the Court.

We review the court of appeals' decision in People v. Pickering, No. 07CA2322, 2010 WL 1099750 (Colo.App. Mar. 25, 2010) (not selected for official publication), reversing respondent Jerad Allen Pickering's conviction for reckless manslaughter. The court of appeals, relying on People v. Lara, 224 P.3d 388 (Colo.App.2009), cert. denied,No. 09SC906, 2010 WL 427605 (Colo. Feb. 8, 2010) and People v. Taylor, 230 P.3d 1227 (Colo.App.2009), cert. denied,No. 10SC102, 2010 WL 2026523 (Colo. May 24, 2010), held that the trial court's self-defense jury instructions impermissibly shifted the burden of the Petitioner, the People of the State of Colorado (“People”), to prove beyond a reasonable doubt that Pickering acted recklessly. We conclude that the trial court's instruction to the jury did not shift the People's burden, and accordingly reverse the judgment of the court of appeals and overrule the contrary rules announced in Lara and Taylor.

I. Facts and Procedural History

Pickering and his friend, Jesse Bates, went to the apartment of another friend, Eugene Morgan, where Morgan and two other men, Leon Villarreal and Jose Torres, were present. An argument ensued between Pickering, Bates, Morgan, and Villarreal, leading to a fight during which Pickering allegedly stabbed Villarreal to death. The People charged Pickering with second-degree murder under section 18–3–103(1), C.R.S. (2010).¹ At trial, Pickering's counsel asserted that Pickering acted in self-defense.

The trial court gave an elemental jury instruction on second-degree murder, which required the People to prove beyond a reasonable doubt that Pickering had knowingly caused Villarreal's death and that Pickering did not act in self-defense. The trial court gave another elemental instruction on the lesser-included charge of reckless manslaughter, which required the People to prove beyond a reasonable doubt that Pickering recklessly caused Villarreal's death. The latter instruction made no mention of self-defense. The trial court then gave a carrying instruction explaining the interaction between self-defense and the knowing and reckless requirements of the respective charges, and another instruction defining self-defense.

The jury found Pickering guilty of reckless manslaughter under section 18–3–104(1)(a), C.R.S. (2010), a lesser-included charge of second-degree murder, ² and Pickering appealed to the court of appeals. The court of appeals reversed the conviction, focusing on a portion of the carrying instruction that stated, pursuant to the language of section 18–1–704(4), C.R.S. (2010), that “the [People] do[ ] not bear the burden of proving beyond a reasonable doubt that [Pickering] did not act in self-defense with respect to [the reckless manslaughter] charge.” The court of appeals concluded that the instruction could have led the jury to misunderstand the relationship between recklessness and self-defense and find Pickering guilty of reckless manslaughter even if it concluded that the People failed to prove that he did not act in self-defense. The People petitioned for, and we granted, certiorari review of the court of appeals' decision.³

II. Analysis

Under both the United States and Colorado Constitutions, due process requires the trial court to properly instruct the jury on every element of the substantive offense with which the defendant is charged so the jury may determine whether all the elements have been established beyond a reasonable doubt. Griego v. People, 19 P.3d 1, 7 (Colo.2001) (citing U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend. VI; U.S. Const. amend. XIV, § 1; Colo. Const. art. II, §§ 16, 23 and 25; Bogdanov v. People, 941 P.2d 247, 252 (Colo.1997); People v. Snyder, 874 P.2d 1076, 1080 (Colo.1994)). How a defense is conceptualized in relation to the elements of a crime depends on the type of defense.

A. Types of Defenses

There are, generally speaking, two types of defenses to criminal charges: (1) “affirmative” defenses that admit the defendant's commission of the elements of the charged act, but seek to justify, excuse, or mitigate the commission of the act; and (2) “traverses” that effectively refute the possibility that the defendant committed the charged act by negating an element of the act. See People v. Huckleberry, 768 P.2d 1235, 1238 (Colo.1989) (citations omitted); see also People v. Miller, 113 P.3d 743, 750 (Colo.2005) (further explaining the distinction between affirmative defenses and traverses). In Colorado, if presented evidence raises the issue of an affirmative defense, the affirmative defense effectively becomes an additional element, and the trial court must instruct the jury that the prosecution bears the burden of proving beyond a reasonable doubt that the affirmative defense is inapplicable. See§ 18–1–407, C.R.S. (2010); Huckleberry, 768 P.2d at 1238 (citations omitted). If, on the other hand, the presented evidence raises the issue of an elemental traverse, the jury may consider the evidence in determining whether the prosecution has proven the element implicated by the traverse beyond a reasonable doubt, but the defendant is not entitled to an affirmative defense instruction. See Huckleberry, 768 P.2d at 1238.

B. Self–Defense

With respect to crimes requiring intent, knowledge, or willfulness, such as second-degree murder, self-defense is an affirmative defense. See People v. Toler, 9 P.3d 341, 345–46 n. 5 (Colo.2000). For example, it is possible for a person to knowingly cause the death of another, thus satisfying the basic elements of second-degree murder under section 18–3–103(1), but to nevertheless do so in self-defense as defined under section 18–1–704, and therefore not be guilty of second-degree murder. Accordingly, if a defendant charged with such a crime raises credible evidence that he acted in self-defense, or if the prosecution presents evidence raising the issue of self-defense, the prosecution bears the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, and the trial court must instruct the jury accordingly.

With respect to crimes requiring recklessness, criminal negligence, or extreme indifference, such as reckless manslaughter, self-defense is not an affirmative defense, but rather an element-negating traverse. See Case v. People, 774 P.2d 866, 869–71 (Colo.1989); People v. Fink, 194 Colo. 516, 518–19, 574 P.2d 81, 83 (1978); People v. Fernandez, 883 P.2d 491, 493 (Colo.App.1994) (citing Case, 774 P.2d 866;Fink, 194 Colo. 516, 574 P.2d 81). Essentially, acts committed recklessly or with extreme indifference or criminal negligence are “totally inconsistent” with self-defense. See Fink, 194 Colo. at 518, 574 P.2d at 83. For example, it is impossible for a person to act both recklessly and in self-defense, because self-defense requires one to act justifiably, section 18–1–704(1), while recklessness requires one to act with conscious disregard of an unjustifiable risk, section 18–1–501(8), C.R.S. (2010). In Fink, this Court held that it was sufficient for trial courts presiding over such charges simply to allow defendants to present evidence of self-defense, properly instruct juries on the definitions of recklessness or criminal negligence, and not give any specific instructions on self-defense, all under the assumption that juries would understand the relationship between self-defense and the elemental requirements of recklessness, criminal negligence, and extreme indifference. See194 Colo. at 518–19, 574 P.2d at 83.

The General Assembly addressed the issues raised in Fink by enacting section 18–1–704(4).⁴ The first clause of section 18–1–704(4) codifies Fink in part, requiring trial courts, in accordance with the United States Supreme Court's holding in Martin v. Ohio, 480 U.S. 228, 233–34, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), to permit defendants accused of crimes to which self-defense is not an affirmative defense—i.e., those involving recklessness, extreme indifference, or criminal negligence—to nevertheless present evidence of self-defense. The second and third clauses abrogate Fink to a limited extent by requiring trial courts to instruct the jury in such cases regarding the law of self-defense and to explain to the jury that it may consider evidence of self-defense in determining whether a defendant acted recklessly or with extreme indifference or with criminal negligence. Finally, the fourth clause, at issue here, clarifies that the self-defense law instruction required in such cases is not an affirmative defense instruction and that the prosecution does not bear the burden of disproving self-defense. ⁵

In Lara, a case involving a charge of first-degree murder and a charge of extreme indifference murder, the trial court instructed the jury, tracking the language of the fourth clause of section 18–1–704(4), that the prosecution did not bear the burden of disproving self-defense. 224 P.3d at 392, 394. The court of appeals held that, by proving extreme indifference, the prosecution necessarily disproves self-defense because of the mutually exclusive nature of extreme indifference and self-defense. The court of appeals then reasoned that instructing the jury, pursuant to the fourth clause of section 18–1–704(4), that the prosecution did not bear the burden of disproving self-defense might imply that the prosecution did not bear the burden of proving extreme indifference, an essential element of the charged crime. See id. at...