People v. Wadley, 92CA0716

• Decision Date: 30 June 1994
• Docket Number: No. 92CA0716,92CA0716
• Citation: 890 P.2d 151
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Clifford WADLEY, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 151

890 P.2d 151

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Clifford WADLEY, Defendant-Appellant.

No. 92CA0716.

Colorado Court of Appeals,

Div. II.

June 30, 1994.

Rehearing Denied Aug. 4, 1994.

Certiorari Denied Feb. 21, 1995.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul Koehler, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, David M. Furman, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge KAPELKE.

Defendant, Clifford Wadley, appeals the judgment of conviction entered upon a jury verdict finding him guilty of second degree murder. Defendant also seeks review of the sentences imposed by the trial court for the murder conviction as well as a conviction for first degree burglary. We affirm.

On April 19, 1991, defendant's eight-year-old daughter told him that her maternal grandfather had molested her in November or December of 1990. Three days later, defendant went to the grandfather's house, entered without permission, and shot him.

The trial court sentenced defendant to consecutive sixteen-year and ten-year terms for the murder and burglary convictions.

I.

Defendant challenges his conviction for second degree murder based on alleged defects in the trial court's jury instructions on heat of passion manslaughter. His argument is twofold.

A.

Defendant's first contention is that the trial court's instructions to the jury and the prosecutor's remarks during closing argument regarding heat of passion manslaughter improperly shifted the burden of proof to defendant on the issue of provocation. We disagree.

Under § 18-3-104(1)(c), C.R.S. (1986 Repl.Vol. 8B), the prosecution has the burden of proving the elements of the offense of heat of passion manslaughter, including provocation by the victim. People v. Seigler, 832 P.2d 980 (Colo.App.1991).

The jury was instructed on the elements of first degree murder and, in a separate instruction, on the elements of the lesser offenses of second degree murder, heat of passion manslaughter, and criminally negligent homicide. In the latter instruction, the court advised the jury that:

the burden is always upon the prosecution to prove beyond a reasonable doubt each and every material element of any lesser included offense ... the law never imposes upon a defendant in a criminal case the burden of calling any witnesses or producing any evidence.

In another instruction, the court reminded the jury that the prosecution, not the defendant, always has the burden of proving the elements of a crime beyond a reasonable doubt.

These instructions mirror those given to the jury in People v. Seigler, supra, in which a division of this court concluded that the instructions adequately advised the jury of the elements of the offense and did not impermissibly shift to the accused the burden of proof as to provocation. We also conclude that these instructions appropriately describe the elements of the offense and the prosecution's burden of proof.

Defendant also maintains that the trial court's instructions to the jury with respect to first and second degree murder should have indicated that the prosecution had the burden of proving the absence of provocation. This contention was rejected in People v. Seigler, supra, and, for the reasons there expressed, we also reject it here. See also People v. Pennese, 830 P.2d 1085 (Colo.App.1991).

Defendant further claims that there was an impermissible shifting of the burden of proof of provocation as a result of the prosecutor's statement during closing argument that the prosecution had failed to prove that defendant acted in a heat of passion.

In closing argument, the prosecutor first argued that defendant could be found guilty of first degree murder because the evidence showed that he had killed the victim with intent and after deliberation. The prosecutor then told the jury:

You are only to go on and consider lesser offenses if we have failed to prove beyond a reasonable doubt the crime of First Degree Murder.... The next lesser included offense is called Heat of Passion Manslaughter. We have not proved to you beyond a reasonable doubt Heat of Passion Manslaughter. And therefore you may not render a verdict of guilty on Heat of Passion Manslaughter.

After making that statement, the prosecutor went on to argue that defendant had not acted upon a sudden heat of passion because there had been a sufficient interval between defendant's learning of his daughter's molestation and his killing of the victim to allow defendant to function rationally.

Because defendant did not make a contemporaneous objection to the prosecutor's argument, we apply a plain error standard on review. See Wilson v. People, 743 P.2d 415 (Colo.1987). Plain error occurs when we can say "that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." People v. Kruse, 839 P.2d 1, 3 (Colo.1992).

Allegations of improper argument must be evaluated in the context of the argument as a whole, and in light of the evidence presented at trial. People v. Gutierrez, 622 P.2d 547 (Colo.1981); People v. Marin, 686 P.2d 1351 (Colo.App.1983).

While we do not approve of the prosecutor's remark regarding his failure to prove that defendant had acted under a sudden heat of passion, under the circumstances presented here, we conclude that the comment does not rise to the level of plain error.

The prosecutor's closing argument as a whole did not contradict the instructions and would not have led the jury to believe that defendant had the burden of proving that he acted in a heat of passion. During his closing remarks, the prosecutor reminded the jury that the prosecution had the burden of proving all elements of the crimes charged, including, with respect to manslaughter, that defendant was acting upon a sudden heat of passion. Thus, in the context of the argument as a whole, and in light of the evidence presented at trial, the prosecutor's comment did not so undermine the fundamental fairness of the trial as to cast doubt on the reliability of the judgment of conviction.

B.

Defendant also claims that, under the instructions given, the jury would only have considered whether defendant acted under heat of passion if it found him not guilty of second degree murder and that, because it found him guilty of second degree murder, it was not permitted to consider the mitigating aspects of heat of passion manslaughter. In People v. Seigler, supra, this contention was specifically rejected, and we also reject it. See also People v. Pennese, supra.

Here, as in People v. Seigler, supra, the court instructed the jury that if it found that the prosecution had failed to prove the elements of first degree murder beyond a reasonable doubt, it could consider not only second degree murder but any of the lesser offenses. The court then recited the elements of each of the lesser offenses, including heat of passion manslaughter.

The instructions did not suggest that if the jury found defendant guilty of second degree murder it should not consider the elements of heat of passion manslaughter, or that if it found defendant guilty of heat of passion manslaughter, it should not consider whether he committed the offense of criminally negligent homicide. Hence, the instructions did not establish an order of priority of the lesser offenses. We perceive no error in the instructions given.

II.

We also disagree with defendant's contention that the trial court erred in refusing to give his tendered instruction expanding the definition of the time element for heat of passion manslaughter.

At the outset, we note that an elemental instruction in the language of the applicable statute is usually sufficient to advise the jury of the nature of the offense. See People v. R.V., 635 P.2d 892 (Colo.1981); People v. Wilson, 791 P.2d 1247 (Colo.App.1990). In addition, the use of an excerpt from a court opinion to embellish jury instructions is generally disfavored. See Evans v. People, 706 P.2d 795 (Colo.1985).

The trial court rejected the following instruction tendered by defendant:

When deciding whether there was an 'interval sufficient for the voice of reason and humanity to be heard' as used in Instruction No. ---, you should consider human nature as it is generally understood, the particular emotional state of the accused, and the surrounding circumstances of the time. The victim's provocation need not occur immediately before the act causing death.

This proposed instruction tracks the language in Coston v. People, 633 P.2d 470, 473 (Colo.1981) regarding what "cooling time" constitutes a sufficient interval to allow a person to function rationally after having been severely provoked.

The language of the instruction given by the court was based on § 18-3-104(1)(c), C.R.S. (1986 Repl.Vol. 8B) and COLJI-Crim. No. 9:08 (1983). Because the instruction adequately informed the jury as to the elements of heat of passion manslaughter, no further definitions were necessary. See People v. Lanari, 811 P.2d 399 (Colo.App.1989), aff'd in part & rev'd in part on other grounds, 827 P.2d 495 (Colo.1992).

Moreover, the terms used in the court's heat of passion manslaughter instruction can be generally understood by persons of common intelligence and thus needed no further definition. See People v. Deadmond, 683 P.2d 763 (Colo.1984); People v. Lanari, supra. Thus, we perceive no error in the trial court's refusal to give the tendered instruction.

Defendant also argues, for the first time on appeal, that his tendered instruction was a "theory of the case" instruction and that the trial court was therefore required to submit it to the jury. Because defendant failed to give the trial court the opportunity to rule on the tendered instruction based on the grounds he now asserts,...