People v. Shepherd, 99CA2528.

• Citation: 43 P.3d 693
• Decision Date: 27 September 2001
• Docket Number: No. 99CA2528.,99CA2528.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Odell SHEPHERD, Jr., Defendant-Appellant.
• Court: Colorado Court of Appeals

43 P.3d 693

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Odell SHEPHERD, Jr., Defendant-Appellant.

No. 99CA2528.

Colorado Court of Appeals, Div. III.

September 27, 2001.

Certiorari Denied March 18, 2002.

Ken Salazar, Attorney General, Peter J. Cannici, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Odell Shepherd, Jr., appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree burglary. He also appeals his adjudication as an habitual criminal. We affirm.

I. Background

Defendant believed that he was in an intimate relationship with the victim. Following an altercation with the victim in July 1998, defendant was charged with various crimes. He pleaded guilty to harassment and criminal mischief, and a restraining order was entered enjoining him, among other things, from having any contact with the victim.

Immediately following his court appearance, defendant telephoned the victim. Consequently, he was arrested for violating the restraining order. Following his release, defendant decided he wanted to talk face-to-face with the victim.

Wearing dark clothing, he went to the victim's neighborhood around midnight and parked his car about a mile from her house. As he approached her house, he saw a commercial van in the driveway, and upon reaching the back door to the house, he heard moaning and voices emanating from the victim's upstairs bedroom. He broke into the house and rushed towards the staircase and up the stairs. Defendant asserted that he broke into the house and rushed up the stairs believing that the victim might need rescue. However, according to the victim and the two men in the house that night, defendant came up the stairs yelling profanities and threatening the victim.

Defendant met a man on the staircase. When the two scuffled, defendant attempted to pull and use a knife on the man. Defendant was ultimately subdued, arrested, and convicted of first degree burglary, a class 3 felony; criminal mischief, a class 4 felony; and violation of a restraining order, a class 1 misdemeanor.

Based on three prior out-of-state felony convictions, the trial court adjudicated defendant an habitual criminal and sentenced him to concurrent terms of forty-eight years for burglary, twenty-four years for criminal mischief, and two years for violating a restraining order.

Defendant appeals only his burglary conviction and his habitual criminal sentences.

II. Lack of Instruction on Choice of Evils Defense

Defendant contends that the trial court erred in not sua sponte instructing the jury on the affirmative defense of choice of evils. We disagree.

Where, as here, a defendant failed to request an instruction at trial, appellate review is limited to determining whether plain error occurred. People v. Garcia, 981 P.2d 214, 217 (Colo.App.1998). In the context of instructional error, plain error does not occur unless review of the entire record demonstrates that the error so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the conviction. People v. Griffin, 867 P.2d 27, 33 (Colo.App.1993). We conclude that no error occurred.

The choice of evils defense is set forth in § 18-1-702, C.R.S.2001. A defendant wishing to invoke this defense must first make a proffer or presentation of evidence supporting the defense to the court outside the presence of the jury; and the court must determine whether, as a matter of law, the claimed facts and circumstances would, if established, constitute sufficient justification for the defendant's alleged conduct. See § 18-1-702(2), C.R.S.2001; Andrews v. People, 800 P.2d 607, 612 (Colo.1990)(Quinn, J., dissenting); People v. Brandyberry, 812 P.2d 674, 678 (Colo.App.1990)("Under the plain language of the statute, evidence in support of the defense must first be proffered or presented to the trial court."); People v. Weiser, 789 P.2d 454, 456 (Colo.App.1989)(offer of proof made at motion in limine hearing).

Here, defendant did not make an offer of proof to, or other request of, the trial court relating to a choice of evils defense. Indeed, during the instructions conference, defendant explicitly disavowed any reliance on that defense.

In People v. Strock, 623 P.2d 42, 45 (Colo.1981), the supreme court noted that the "failure of the trial court to give an instruction on the choice of evils resulted from the election of defense counsel not to lay the foundation required by the statute." Because, at the very least, defendant here made a tactical decision to bypass use of a choice of evils defense, we cannot find error, much less plain error, in the trial court's failure to instruct upon that defense. See People v. Strock, supra; People v. Patrick, 541 P.2d 320, 322 (Colo.App.1975)

(not selected for official publication)(choice of evils defense could not be properly presented to a jury where defendant never obtained the ruling required by § 18-1-702(2)). See also People v. Close, 867 P.2d 82, 90-91 (Colo.App.1993).

III. Prosecutorial Misconduct

Defendant also contends that reversal is warranted because, during closing arguments, the prosecution (1) asked the jury to find him guilty based on evidence of bad character and (2) misstated the law. We are not persuaded.

Whether closing argument is improper depends upon the nature of the comments and on whether the jury's attention has been directed to something it is not entitled to consider. People v. Constant, 645 P.2d 843, 846 (Colo.1982). Claims of improper argument must be evaluated in the context of the argument as a whole and in light of the evidence before the jury. People v. Coit, 961 P.2d 524, 530 (Colo.App.1997). Counsel may comment on the evidence admitted at trial, the reasonable inferences that can be drawn therefrom, and the instructions of law given to the jury. People v. DeHerrera, 697 P.2d 734, 743 (Colo.1985). Counsel may not misstate or misinterpret the law. People v. Anderson, 991 P.2d 319, 321 (Colo. App.1999). The determination whether closing argument is improper is a matter committed to the discretion of the trial court. People v. Coit, supra.

A. Defendant's Bad Character

Initially, we reject defendant's argument that the prosecution's remarks addressed irrelevant and inflammatory issues of defendant's bad character.

The prosecution's remarks referenced evidence of the relationship between defendant and the victim and defendant's actions toward the victim. They were based on res gestae evidence properly admitted by the trial court to provide the jury with a full and complete understanding of the events surrounding the crimes and the context in which the crimes occurred. See People v. Quintana, 882 P.2d 1366, 1373 (Colo.1994)

(discussing res gestae evidence). See also People v. Bernabei, 979 P.2d 26, 30 (Colo.App.1998)(noting that res gestae rulings have "permitted the admission of evidence of other transactions relating back over a period of weeks"); People v. Agado, 964 P.2d 565, 566-67 (Colo.App.1998)(evidence of defendant's argument with girlfriend night before incident gave jury fuller understanding of events surrounding crime); People v. Allen, 944 P.2d 541, 546 (Colo.App.1996)(evidence of events leading up to issuance of restraining order admissible in burglary case).

As such, no error was occasioned by those remarks. See People v. DeHerrera, supra.

B. Misstatements of Law

Defendant further contends that the prosecution misstated the law when it remarked once in rebuttal closing argument, "If you break into somebody's house with the intent to rescue someone and contact them while there's a valid restraining order, it's burglary," and later, "[I]t doesn't matter if you believe he went in to rescue her; he's guilty of burglary."

Defendant points out that, under the applicable statute, Colo. Sess. Laws 1971, ch. 121, § 40-4-204 at 427 (formerly codified as § 18-4-202, C.R.S.1998), the crime of burglary required proof of intent to commit a crime at the time defendant entered the victim's house. See Cooper v. People, 973 P.2d 1234, 1239 (Colo.1999)

.

However, because defendant did not object to these statements, we review them only for plain error. See People v. Foster, 971 P.2d 1082, 1085 (Colo.App.1998)

. Prosecutorial misconduct in closing argument rarely constitutes plain error. People v. Avila, 944 P.2d 673, 676 (Colo.App.1997). To constitute plain error, misconduct must be flagrantly, glaringly, or tremendously improper, and it must so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. People v. Avila, supra.

Here, the court instructed the jury, consistent with Cooper, that the crime of burglary required proof that defendant "entered a building or occupied structure ... with intent therein to commit the crime of Violation of a Restraining Order." During closing argument, the prosecution remarked that the requisite intent was shown by proof of intent to contact the victim in violation of the restraining order, and that:

[L]et's just suppose for a moment that [defendant] is concerned; that he really does think that he must [rescue the victim]. He still is breaking in, he's still armed with a deadly weapon, and he still means to contact [the victim].

....

Even if you believe ... that he intended to go in and complete some sort of rescue operation without contacting her, that is a logical impossibility. Please don't get caught up in some sort of semantic technicality like that. What is prohibited by the statute is the intent you have to have. In contacting [the victim] did you enter with the intent to do it? No question.

These remarks provide the context for the remarks challenged on appeal. When read not in isolation, but in context, the challenged...