People v. Versteeg, No. 04CA1227.

Docket NºNo. 04CA1227.
Citation165 P.3d 760
Case DateNovember 02, 2006
CourtCourt of Appeals of Colorado
165 P.3d 760
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
William P. VERSTEEG, Defendant-Appellant.
No. 04CA1227.
Colorado Court of Appeals, Div. V.
November 2, 2006.
Certiorari Granted August 27, 2007.

[165 P.3d 761]

John W. Suthers, Attorney General, Denver, Colorado; Kathleen M. Byrne, Special Assistant Attorney General, Boulder, Colorado, for Plaintiff-Appellee.

Anne Whalen Gill, P.C., Anne Whalen Gill, Castle Rock, Colorado, for Defendant-Appellant.

Opinion by Judge RUSSEL.


Defendant, William P. Versteeg, appeals the trial court's order denying his motion for postconviction relief. We reverse and remand with directions.

I. Background

Defendant shot and killed his female roommate during an argument about her involvement with another man. During the incident, he also pointed the gun at the other man. He was tried on charges of murder and attempted murder.

Defendant testified that he and his roommate had been involved in a romantic relationship. He recalled that, on the day of the shooting, he began drinking in the morning and continued drinking throughout the day. When he returned home, he entered the roommate's bedroom and suspected that she had slept with someone. Defendant testified that he was "very hurt, and angry," and he tore down a curtain, punched a hole in a wall, and stabbed the roommate's waterbed with a knife. Defendant then fell asleep on the couch.

Defendant testified that he woke when the roommate entered the house with a man. Defendant assumed that the man was "probably who [the roommate] had been sleeping with that night," and he demanded that the man leave. When the man refused, defendant retrieved a loaded shotgun and pointed it at him. Defendant testified that the shotgun accidentally discharged when his roommate intervened. He denied trying to shoot anyone.

165 P.3d 762

The jury convicted defendant of first degree murder and attempted first degree murder. On appeal, a division of this court affirmed the convictions. People v. Versteeg, (Colo.App. No. 98CA1140, Dec. 2, 1999) (not published pursuant to C.A.R. 35(f)) (Versteeg I). The supreme court denied certiorari.

In January 2004, defendant filed an amended motion for postconviction relief under Crim. P. 35(c). He asserted three substantive postconviction claims:

1. The trial court committed plain error when it gave an erroneous jury instruction on, and allowed the prosecutor to make erroneous statements about, self-induced intoxication under § 18-1-804(1), C.R.S.2006.

2. Defendant was denied the effective assistance of counsel because his trial attorney made the following errors:

a. Counsel failed to request an instruction on heat of passion and failed to obtain defendant's personal presence when the instructions were drafted.

b. Counsel failed to investigate potential witnesses who had volunteered to testify on defendant's behalf.

c. Counsel failed to object to specific arguments made by the prosecutor and to allege instances of prosecutorial misconduct.

d. When the jury indicated that it was deadlocked, counsel failed to request the procedures set forth in People v. Lewis, 676 P.2d 682, 689 (Colo.1984).

e. Counsel failed to present certain information in support of defendant's motion to suppress statements.

3. Defendant was denied the effective assistance of counsel because his appellate attorney failed to present the following arguments on direct appeal:

a. Error in refusing to suppress defendant's statements.

b. Error in denying a special unanimity instruction.

c. Ineffective assistance of trial counsel.

The prosecution filed a written reply to defendant's motion addressing some, but not all, of these assertions. The trial court summarily denied defendant's motion "for the reasons in the reply."

II. General Contention

Defendant now contends that the trial court erred in summarily denying his postconviction motion. We agree, for two reasons.

First, as set forth in Part III of this opinion, defendant was entitled to relief on his first postconviction claim. The trial court committed plain error when it gave an incorrect jury instruction on, and allowed the prosecutor to make erroneous statements about, self-induced intoxication. We reach this conclusion based on a change in the law that occurred after defendant was tried but before his conviction was final.

Second, as set forth in Part IV of this opinion, the trial court did not sufficiently address defendant's remaining postconviction claims. Although some of defendant's assertions were properly rejected, other assertions require additional findings.

III. First Postconviction Claim

Defendant contends that his conviction must be reversed for plain error in the instructions and argument concerning self-induced intoxication. We agree.

A. Pertinent Events

Defendant was tried in March 1998. At the close of evidence, the court instructed the jury, by means of an affirmative defense instruction, that it must acquit defendant of first degree murder and attempted first degree murder if it found that, because of self-induced intoxication, defendant lacked the capacity to form specific intent. The affirmative defense instruction did not mention the element of "after deliberation."

During closing argument, the prosecutor stated that self-induced intoxication is irrelevant to the issue of deliberation:

[I]t's real important to know that intoxication is only a defense as to this word intent. Intoxication has nothing to do with deliberation. . . . You don't even have to think about it. The only time

165 P.3d 763

you need to worry about intoxication is where you're seeing this word intent.

. . . .

I emphasize to you that you should only consider intoxication as it goes to this idea here, the intent. It does not go with after deliberation. . . . Intoxication is no defense to the issue of deliberation as a matter of law.

Defendant did not object to the court's instructions or to the prosecutor's statements. Nor did he argue on direct appeal that the instruction or statements constituted reversible error.

On the day that it denied certiorari in Versteeg I, the supreme court announced People v. Harlan, 8 P.3d 448 (Colo.2000). As relevant here, the court observed that § 18-1-804(1) is "an evidentiary rule permitting the introduction of evidence of voluntary intoxication to negate the requisite specific intent of the charged offense." People v. Harlan, supra, 8 P.3d at 471.

This observation informed two related determinations:

1. Evidence of self-induced intoxication bears on whether the defendant in fact had the specific intent of the charged offense, not whether the defendant merely had the capacity to form specific intent. People v. Harlan, supra, 8 P.3d at 471-72.

2. Evidence of self-induced intoxication bears on whether the defendant acted after deliberation. People v. Harlan, supra, 8 P.3d at 475.

In January 2004, defendant filed his amended Crim. P. 35(c) motion, claiming that the court's jury instruction and the prosecutor's statements constituted plain error under Harlan.

B. Procedural Posture

We first consider whether we may reach the merits of defendant's first postconviction claim. We perceive no obstacle:

1. The claim is timely. Defendant was convicted of first degree murder, a class one felony, and attempted first degree murder, a class two felony. Although a class one felony may be challenged at any time, defendant was required to challenge his attempted murder conviction within three years of the conclusion of his direct appeal. See § 16-5-402(1), C.R.S.2006; People v. Hampton, 876 P.2d 1236, 1240 (Colo.1994). Here, defendant's initial Crim. P. 35(c) motion was filed within three years of the conclusion of Versteeg I.

2. Because defendant's amended Crim. P. 35(c) motion was filed before July 1, 2004, the claim is not subject to the automatic procedural bars set forth in the amended Crim. P. 35(c)(3)(VII).

3. The prosecution did not assert that the claim was forfeited for abuse of process. See People v. Rodriguez, 914 P.2d 230, 253 n. 20 (Colo. 1996) (approving ABA Standard for Criminal Justice § 22-6.1, under which "abuse of process is an affirmative defense to be pleaded by the respondent").

C. Standard of Review

What is the standard of review for a postconviction claim that is based on an assertion of unpreserved trial error?

In federal court, the answer to this question is clear: "[T]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) `cause' excusing his double procedural default, and (2) `actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982).

The answer is less clear in Colorado. The supreme court has never squarely addressed the issue, and the relevant cases are inconsistent.

In People v. Shearer, 181 Colo. 237, 508 P.2d 1249 (1973), the court held that a particular instructional error did not warrant postconviction relief. In reaching this conclusion, the court suggested that unpreserved errors should be evaluated in postconviction proceedings under a standard of review different from that applicable on direct appeal:

165 P.3d 764

If the failure to properly instruct the jury had been properly raised at the time of trial or in a motion for a new trial or on appeal, we might well have reversed and ordered a new trial. However, we do not have the matter before us on appeal. This proceeding is not a direct appeal, but a proceeding to review a Crim. P. 35[(c)] motion and hearing for post-conviction relief.

People v. Shearer, supra, 181 Colo. at 244, 508 P.2d at 1253.

Since announcing Shearer, the court has clarified that postconviction claims must be based on errors of constitutional magnitude. See People v. Rodriguez, supra, 914 P.2d at 254 (citing People v. Shearer, supra). And it has recognized that society's interest...

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25 practice notes
  • Hinds v. Comm'r of Corr., No. 19393
    • United States
    • Supreme Court of Connecticut
    • April 26, 2016
    ...appears to be little or no difference in the operation of the ‘materiality’ [Brady ] and ‘prejudice’ [Frady ] tests”); People v. Versteeg, 165 P.3d 760, 765 (Colo.App.2006) (“[A] showing of actual prejudice under Frady generally depends on an inference that the error affected the 321 Conn. ......
  • Dunlap v. People, No. 04SA218.
    • United States
    • Colorado Supreme Court of Colorado
    • May 14, 2007
    ...jury instruction); id. at 261 (reviewing trial court's denial of a challenge for cause for abuse of discretion); People v. Versteeg, 165 P.3d 760, ___ (Colo.App. 2006) (discussing the correct standard of review for a postconviction claim based on unpreserved trial error). III. Ineffective A......
  • Hinds v. Comm'r of Corr., SC 19393
    • United States
    • Supreme Court of Connecticut
    • April 26, 2016
    ...to be little or no difference in the operation of the 'materiality' [Brady] and 'prejudice' [Frady] tests"); People v. Versteeg, 165 P.3d 760, 765 (Colo. App. 2006) ("[A] showing of actual prejudice under Frady generally depends on an inference that the error affected the outcome.......
  • Rosales v. Milyard, Civil Action No. 10-cv-03101-CMA
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • March 29, 2013
    ...the state has failed to satisfy its burden of proof as to the mens rea of intent.2 Id. at 8. Applicant, relying on People v. Versteeg, 165 P.3d 760, 770 (Colo. App. 2006), argues that the self-induced intoxication instruction was incorrect because the instruction in his case, rather than fo......
  • Request a trial to view additional results
25 cases
  • Hinds v. Comm'r of Corr., No. 19393
    • United States
    • Supreme Court of Connecticut
    • April 26, 2016
    ...appears to be little or no difference in the operation of the ‘materiality’ [Brady ] and ‘prejudice’ [Frady ] tests”); People v. Versteeg, 165 P.3d 760, 765 (Colo.App.2006) (“[A] showing of actual prejudice under Frady generally depends on an inference that the error affected the 321 Conn. ......
  • Dunlap v. People, No. 04SA218.
    • United States
    • Colorado Supreme Court of Colorado
    • May 14, 2007
    ...jury instruction); id. at 261 (reviewing trial court's denial of a challenge for cause for abuse of discretion); People v. Versteeg, 165 P.3d 760, ___ (Colo.App. 2006) (discussing the correct standard of review for a postconviction claim based on unpreserved trial error). III. Ineffective A......
  • Hinds v. Comm'r of Corr., SC 19393
    • United States
    • Supreme Court of Connecticut
    • April 26, 2016
    ...appears to be little or no difference in the operation of the 'materiality' [Brady] and 'prejudice' [Frady] tests"); People v. Versteeg, 165 P.3d 760, 765 (Colo. App. 2006) ("[A] showing of actual prejudice under Frady generally depends on an inference that the error affected the outcome. T......
  • Rosales v. Milyard, Civil Action No. 10-cv-03101-CMA
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • March 29, 2013
    ...the state has failed to satisfy its burden of proof as to the mens rea of intent.2 Id. at 8. Applicant, relying on People v. Versteeg, 165 P.3d 760, 770 (Colo. App. 2006), argues that the self-induced intoxication instruction was incorrect because the instruction in his case, rather than fo......
  • Request a trial to view additional results

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