People v. Reedy, 83CA1120
| Decision Date | 11 July 1985 |
| Docket Number | No. 83CA1120,83CA1120 |
| Citation | 705 P.2d 1032 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James E. REEDY, Defendant-Appellant. . III |
| Court | Colorado Court of Appeals |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Milton Hutchins, First Asst. Atty. Gen., Denver, for plaintiff-appellee.
Hall & Evans, Thomas N. Alfrey, Kathleen G. Lanterman, Denver, for defendant-appellant.
Defendant, James E. Reedy, appeals from judgments of conviction entered on jury verdicts finding him guilty of second degree assault on a peace officer and of third degree assault on his girlfriend. We affirm in part and reverse in part.
The charges here at issue arose from an incident occurring when the Parachute chief of police responded to a call concerning a disturbance at defendant's apartment. When the officer attempted to arrest and handcuff defendant, defendant obtained possession of the officer's gun. In an ensuing scuffle, the officer was cut and bruised on his head and body, and four shots were fired, two of which hit defendant. How and by whom the shots were fired was the subject of conflicting evidence.
Defendant was charged with two counts of first degree and one count of second degree assault on the officer, one count of third degree assault on his girlfriend, and with commission of violent crime. He was acquitted on the first degree assault and violent crime charges, and was convicted on the second and third degree assault counts.
Defendant first contends that he was denied due process and that all charges should have been dismissed because of the prosecution's negligent suppression and destruction of evidence consisting of a T-shirt allegedly worn by defendant, the clothes worn by the officer, and the pink notes of a police investigator. We disagree.
The trial court found, on supporting evidence, that the defendant was not wearing a T-shirt at the time of the altercation. The officer's shirt and pants were not preserved, but there was no showing that, had they been produced, they would have been exculpatory or relevant to defendant's case. See Garcia v. District Court, 197 Colo. 38, 589 P.2d 924 (1979). And, the record shows that the notes were on yellow and not on pink paper, and that defense counsel received the yellow sheets.
Contrary to defendant's contention of error, the trial court did not permit defense counsel, on cross-examination of the police officer victim, to inquire into the witness' knowledge concerning the Parachute municipal ordinance on disorderly conduct and the conduct of defendant upon which the officer relied in attempting to arrest defendant therefor. CRE 401 and 611.
Defendant claims that the trial court committed error in refusing to give a requested special interrogatory to the jury concerning "heat of passion" and that his second degree assault conviction must be reversed for that reason. We agree.
Second degree assault is a class 4 felony, except that if it is "committed under circumstances where the act causing the injury is performed, not after deliberation, upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person, it is a class 1 misdemeanor." Section 18-3-203(2), C.R.S. (1984 Cum.Supp.).
We cannot accept the People's argument that the trial court correctly ruled that the "heat of passion" provision is inapplicable to assault on a peace officer. No exception is stated in the statute, and we cannot judicially legislate such an exception. There was evidence that would support a finding that defendant acted in "a sudden heat of passion" and that the acts complained of were of a "serious and highly provoking" type. Therefore, he was entitled to a finding by the jury on that issue so that the trial court...
To continue reading
Request your trial
-
People v. Suazo
...if evidence has been presented which would support such a finding. People v. Brighi, 755 P.2d 1218 (Colo.1988); People v. Reedy, 705 P.2d 1032 (Colo.App.1985). Under the Colorado assault statutes, as they pertain to the facts of this case, a person is guilty of third degree assault if he or......
-
People v. Brighi, 86SA496
...A defendant charged with assault is entitled to a special interrogatory on heat of passion if the evidence supports it. People v. Reedy, 705 P.2d 1032 (Colo.Ct.App.1985) (second degree assault); People v. Grable, 43 Colo.App. 518, 611 P.2d 588 (1979) (first degree assault). The question pre......