People v. Tremaine D. Speer

• Citation: 255 P.3d 1115
• Decision Date: 27 June 2011
• Docket Number: No. 08SC333.,08SC333.
• Parties: The PEOPLE of the State of Colorado, Petitioner/Cross–Respondentv.Tremaine D. SPEER, Respondent/Cross–Petitioner.
• Court: Supreme Court of Colorado

255 P.3d 1115

The PEOPLE of the State of Colorado, Petitioner/Cross–Respondent

v.Tremaine D. SPEER, Respondent/Cross–Petitioner.

No. 08SC333.

Supreme Court of Colorado, En Banc.

June 27, 2011.

John W. Suthers, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General, Criminal Justice Section, Appellate Division Denver, Colorado, Attorneys for Petitioner/Cross–Respondent.Douglas K. Wilson, Public Defender, Stephen C. Arvin, Deputy Public Defender, Denver, Colorado, Attorneys for Respondent/Cross–Petitioner.Justice COATS delivered the Opinion of the Court.

Both Speer and the People petitioned for review of the court of appeals' judgment reversing Speer's conviction for attempted aggravated robbery. See People v. Speer, 216 P.3d 18 (Colo.App.2007). The People sought review of the court of appeals' determination that the district court erroneously denied Speer's requested jury instruction on the affirmative defense of duress, resulting in the reversal of his conviction. Speer cross-petitioned, asserting that even if this court were to disagree that denial of his requested instruction was reversible error, he would nevertheless be entitled to a new trial because the district court erred in rejecting his challenges for cause to two prospective jurors who worked in airport security.

Because there was simply no evidence from which a reasonable jury could find that the defendant acted under duress, as the statute defining that defense has been construed by this court, the district court did not err in rejecting the defendant's proffered duress instruction. Because neither the Department of Homeland Security (DHS) nor the Transportation Security Administration (TSA) is a public law enforcement agency within the meaning of subsection 16–10–103(1)(k), C.R.S. (2010), the district court also did not err in rejecting the defendant's challenges for cause to the two jurors in question. The judgment of the court of appeals is therefore reversed, and the case is remanded with directions to reinstate the judgment of conviction.

I.

Tremaine D. Speer was charged with attempt to commit first degree murder, first degree assault, attempt to commit aggravated robbery, theft by receiving, possession of a weapon by a previous offender, and committing a crime of violence, all arising from an attempted robbery and shooting of the robbery victim outside a convenience store on April 6, 2004. The jury convicted Speer of attempted aggravated robbery and committing a crime of violence, but it acquitted him of both attempted murder and first degree assault.¹ He was sentenced to a term of incarceration of sixteen years.

During the jury selection process, the defense challenged two prospective jurors for cause when they indicated that they worked in airport security for the Department of Homeland Security.² The defendant argued that they were employees of a public law enforcement agency, as contemplated by subsection 16–10–103(1)(k) of the revised statutes. The trial court denied both challenges on the ground that security screeners, like the two prospective jurors in question, could not be considered employees of a public law enforcement agency subject to challenge for cause. Speer exercised a peremptory challenge to remove one of the prospective jurors but exhausted his remaining peremptory strikes before questioning the second juror, who therefore sat for the trial.

At trial, the prosecution presented evidence that the victim negotiated with an acquaintance named Jamar Dickey to sell his used Honda for $600. After the victim met Dickey at an automotive parts store on the evening in question and completed the vehicle transaction, Dickey agreed to drive him and his family home in the Honda. When Dickey made an unplanned stop at a convenience store and went inside, Speer emerged from behind a dumpster in the parking lot, pointed a gun at the victim, and demanded his money. As the victim hesitated, Speer shot the victim in the stomach. After a brief altercation with Speer, the victim fled on foot and collapsed less than a block from the convenience store.

Testifying on his own behalf, Speer did not dispute that he demanded the victim's money at gunpoint or that he shot the victim in the process but asserted instead that the shooting was accidental and that the robbery was part of a plot in which he participated only under duress. Speer testified that the man identified as Dickey, an acquaintance whom Speer had met through friends several months before, threatened him with a gun earlier in the day and also threatened to find and harm his brother if he declined to cooperate in the robbery. He described in considerable detail the entire day he spent with Dickey, including various times in which he was out of Dickey's presence and in control of both Dickey's gun and a car. In particular he described positioning himself to carry out the robbery by driving himself, with the weapon in his possession, to the alley behind the convenience store, while Dickey was meeting the victim at the automotive parts store to consummate the sale.

At the close of evidence Speer requested that the jury be instructed on the affirmative defense of duress. The trial court, however, denied the instruction, finding that Speer had failed to present evidence from which the jury could make the factual findings necessary to satisfy the defense.

The court of appeals reversed, concluding that sufficient evidence of the defense had been presented at trial. In its opinion, the division held that the imminence of a threat is a question for the jury in all but the clearest of cases and that Dickey's threats to harm Speer's brother, if believed by the jury, were sufficient to support a finding that he lacked any reasonable opportunity to escape. See Speer, 216 P.3d at 24. The court of appeals, however, rejected Speer's argument that the district court erred in declining to sustain his challenges for cause to prospective jurors working as airport security screeners. See id. at 25–26.

We granted the People's petition for a writ of certiorari challenging the court of appeals' reversal for rejecting the defendant's proposed duress instruction, as well as Speer's cross petition challenging the decision to permit airport security personnel to sit.

II.

It is too well settled to merit further discussion that a trial court is obliged to instruct the jury on a requested affirmative defense if there is any credible evidence, including even highly improbable testimony of the defendant himself, supporting it. See, e.g., Lybarger v. People, 807 P.2d 570, 579 (Colo.1991). To place the defense in issue, however, there must be some credible evidence to satisfy each of its components or constituent elements. Id. And whether there is credible evidence to support each element of an affirmative defense is a question for the court rather than the jury. Id. Similarly, the construction of a statute defining an affirmative defense, and consequently the determination of the precise elements of that defense, is a question of law for the court. See People v. Garcia, 113 P.3d 775, 780 (Colo.2005).

This jurisdiction has long codified some version of the related common law defenses of duress and necessity. See §§ 18–1–702, –708, C.R.S. (2010); C.R.S.1963, §§ 40–1–802, –808 (1971 Perm. Cum. Supp.); see also United States v. Bailey, 444 U.S. 394, 410, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (discussing the common law defenses and some of their more modern variations and codifications). Our current statutory defense of duress bars the conviction of a person for any criminal offense, other than a class 1 felony, “based upon conduct in which he engaged at the direction of another person because of the use or threatened use of unlawful force upon him or upon another person, which force or threatened use thereof a reasonable person in his situation would have been unable to resist.” § 18–1–708. While this statute no longer expressly limits the applicability of the defense to threats of death or serious bodily injury, neither does it expand the defense so far as to include every threat causing subjective fear or exculpate every defendant too weak to resist threats against himself or another. See Bailey v. People, 630 P.2d 1062, 1068–69 (Colo.1981); see also People v. Preciado–Flores, 66 P.3d 155, 163 (Colo.App.2002) (fear must be “well-grounded”); cf. People v. Robertson, 36 Colo.App. 367, 369, 543 P.2d 533, 535 (1975). The statute retains an objective standard of reasonableness, exculpating only for threats that a reasonable person would not have been able to resist.

Defenses of necessity, whether occurring in more generic forms like choice of evils or duress, or more specific incarnations like defense of person, property, or premises, have never been available as alternatives to relying on the protection of the law. See generally 2 Wayne R. LaFave, Substantive Criminal Law § 9.1(a), at 7 (2d ed. 2003) (stating that justification defenses generally are unavailable where there is “some opportunity to seek less drastic means of avoiding that harm”). In characterizing the common law defenses of duress and necessity in particular, the United States Supreme Court has noted that “[u]nder any definition of these defenses one principle remains constant: if there was a reasonable, legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm,' the defenses will fail.” Bailey, 444 U.S. at 410, 100 S.Ct. 624 (quoting Wayne R. LaFave & Austin W. Scott, Handbook on Criminal Law § 49, at 379 (1972)).

We have consistently construed our own statute, with its requirement that the threatened force exceed any objectively reasonable ability to resist, as making the defense of duress, like the closely related defense of necessity or choice of evils, unavailable in the absence of a specific and imminent threat of injury under circumstances...