People v. Ramirez

• Decision Date: 15 October 2002
• Docket Number: No. 01SC440.,01SC440.
• Citation: 56 P.3d 89
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Armando Bailon RAMIREZ, Respondent.
• Court: Colorado Supreme Court

56 P.3d 89

The PEOPLE of the State of Colorado, Petitioner, v. Armando Bailon RAMIREZ, Respondent.

No. 01SC440.

Supreme Court of Colorado, En Banc.

October 15, 2002.

Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Petitioner.

David S. Kaplan, Colorado State Public Defender, Ann M. Aber, Deputy State Public Defender, Attorneys for Respondent.

Justice KOURLIS delivered the Opinion of the Court.

In this case, a jury convicted defendant Armando Ramirez of murder in the second degree and first degree criminal trespass, arising out of the death of Maria Ramirez-Sanchez, and the trial court sentenced him accordingly. The defendant, Ramirez, appealed his convictions, claiming that the jury improperly failed to fill out the special verdict form indicating whether the murder conviction was for second degree murder or second degree murder—heat of passion. The court of appeals returned the case to the trial court for resentencing, reasoning that the absence of a jury finding concerning the heat of passion mitigator afforded the defendant the benefit of the assumption that the jury intended the lesser felony. People v. Ramirez, No. 99CA164 (Colo. App. May 3, 2001) (not selected for official publication). Because we conclude that there was no evidence that entitled the defendant to an instruction on heat of passion, let alone a verdict to that effect, we reverse the court of appeals and reinstate the sentencing order.

I. Facts

The defendant, Armando Ramirez, was a friend¹ of the victim, Maria Ramirez-Sanchez.² On October 27, 1997, Ramirez stopped by Ramirez-Sanchez's trailer where the victim lived with her eleven-year-old daughter and infant son. Monico Lopez, the man from whom the victim was purchasing the trailer, was also at the trailer conversing with the victim regarding her intention to return to Mexico and the possibility of Lopez providing transportation. After Ramirez arrived, Ramirez and Lopez discussed the trailer's heater, and Lopez subsequently departed.

After Lopez left, Ramirez asked the victim to marry him.³ The victim stated that she would not marry Ramirez. Ramirez then left. Shortly thereafter, Lopez returned and he and the victim had a brief conversation in his vehicle. Again, Lopez departed. Ramirez then returned, this time entering the trailer. He asked the victim who Lopez was. The victim replied that Lopez was the man selling her the trailer. Ramirez again asked the victim to marry him; the victim replied that "she didn't want [Ramirez] as a boyfriend or a husband, only as a friend."

The victim requested that Ramirez leave because she was tired. Ramirez did not leave but indicated that he wanted to stay. The victim opened the door and pushed Ramirez outside. Ramirez grabbed the victim by the sweater and pulled her outside with him. The victim's daughter followed them outside. Ramirez and the victim yelled at each other. Ramirez then pulled a handgun from his coat and shot the victim. The victim fell to the ground, and Ramirez approached the victim and shot her again. The victim's daughter began struggling with Ramirez. Ramirez shot the victim six to eight more times and the victim died of multiple gunshot wounds. Ramirez fled. The following day, law enforcement officials apprehended Ramirez in New Mexico carrying the gun he had used to shoot the victim.

At trial, the defense psychology expert witness testified that the victim humiliated Ramirez by forcing him to leave her home and also by the substance of the second conversation between the victim and Lopez, which Ramirez claimed to have overheard.⁴ The expert gave his opinion that Ramirez had acted as a result of that humiliation and not after deliberation.

At the conclusion of the trial, the judge instructed the jury that it was Ramirez's theory of the case that

he did not murder Maria Ramirez after deliberation. It is further his answer that he acted in a hasty and impulsive manner when he shot and killed Maria Ramirez.

Finally, Armando Ramirez answers that a combination of factors including, emotional rejection, unrequited expressions of love and affection, jealousy, injured self-esteem, and the coincidental presence of a firearm resulted in the deadly, impulsive act.

If you do not find beyond a reasonable doubt that the defendant acted after deliberation, you should find the defendant not guilty of first degree murder, and you should then consider whether he is guilty of the offense of second degree murder or the offense of second degree murder—heat of passion.

The jury instructions further contained two lesser offense instructions, one of which instructed the jury that if they did not find the defendant guilty of first degree murder, they could nonetheless find him guilty of second degree murder; and the second of which instructed the jury that if they did not find the defendant guilty of first degree murder, they could nonetheless find him guilty of second degree murder or second degree murder—heat of passion. In combination among the various instructions, the trial court outlined the elements of first degree murder, second degree murder and second degree murder—heat of passion.

As to the verdict itself, the trial court directed the jury that they could "not find the defendant guilty of more than one of the following offenses: Murder in the first degree[;] Murder in the second degree[;] Murder in the second degree, heat of passion."

Finally, the court instructed, "When you have unanimously agreed upon your verdicts you will select the forms which reflect your verdicts and the foreperson will sign them as the Court has stated. The unsigned form(s) shall also be returned with no markings on them." The court provided five verdict forms. The first one provided signature lines for the foreman to indicate that the jury had found the defendant guilty or not guilty of first degree murder. The second was the same for second degree murder. The third form read: I. We, the jury, find the Defendant, ARMANDO BAILON RAMIREZ, NOT GUILTY of Murder in the Second Degree, Heat of Passion; II. We, the jury, find the Defendant, ARMANDO BAILON RAMIRAZ, GUILTY of Murder in the Second Degree, Heat of Passion. The fourth form related to the Criminal Trespass charge; and the fifth form was a special interrogatory relating to whether the defendant used a deadly weapon in the commission of the crime.

During closing arguments, the prosecutor urged the jury to find Ramirez guilty of first degree murder after deliberation. In response, the defense counsel asked the jury "to look at the charges of second degree murder, to look at the charge of second degree murder as a passion and come back with an appropriate verdict."

After deliberation, the jury signed verdict forms finding the defendant not guilty of murder in the first degree, guilty of murder in the second degree⁵ and guilty of first degree criminal trespass.⁶ The court then noted that the jury had only completed a portion of the crime of violence special interrogatory and sent the jury back to complete the form.

The jury did not ever complete the form that directed them to find the defendant either guilty or not guilty of second degree murder—heat of passion. Neither the trial judge nor the parties mentioned that omission. The court discharged the jury and entered convictions for second degree murder and criminal trespass.

During the sentencing hearing, all participants proceeded on the assumption that the trial court should sentence Ramirez for second degree murder—not second degree murder, heat of passion. The prosecutor argued that the jury "said this wasn't heat of passion, Judge. The jury said this was second-degree murder." The defense counsel agreed, arguing the "jury disagreed with the prosecution, that this was a murder that took place after deliberation. They certainly did consider the fact of heat of passion. They came back that it was second, that it was something not planned out, that it was not after deliberation." At the close of the sentencing hearing, the trial court found that there were extraordinary aggravating circumstances and sentenced Ramirez to forty-eight years in prison for the second degree murder conviction and three years for the first degree criminal trespass conviction to run concurrently with the second degree murder sentence.

Ramirez appealed to the court of appeals presenting two claims. First he asserted that the trial court violated his right to constitutional due process because it refused to give an instruction that evidence of his peaceful and law abiding character could support a finding of reasonable doubt; the court of appeals rejected this claim. Ramirez also argued that because the jury did not return a verdict on second degree murder—heat of passion, his case should be remanded with instructions to reduce his second degree murder conviction from the class two felony prescribed for second degree murder, section 18-3-103(3)(a), to the class three felony mandated for second degree murder—heat of passion, section 18-3-103(3)(b). The court of appeals agreed, holding that a jury's failure to complete the second degree murder—heat of passion verdict form required remand for resentencing. People v. Ramirez, No. 99CA164, slip op. at 3 (Colo.App. May 3, 2001). The court of appeals determined that if the trial court discharges the jury before it obtains the jury's verdict concerning heat of passion, the level of the defendant's conviction must be reduced from the higher felony classification to the lower one. Id. at 3-4.

The prosecution sought certiorari from the decision of the court of appeals to this court arguing that the court of appeals erred in concluding that the jury's failure to mark the second degree murder—heat of passion verdict form constituted plain error because there was no evidence in the record to support a heat of passion...