People v. Wakefield, Court of Appeals No. 15CA0654

• Decision Date: 22 March 2018
• Docket Number: Court of Appeals No. 15CA0654
• Citation: 428 P.3d 639
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Timothy WAKEFIELD, Defendant-Appellant.
• Court: Colorado Court of Appeals

428 P.3d 639

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Timothy WAKEFIELD, Defendant-Appellant.

Court of Appeals No. 15CA0654

Colorado Court of Appeals, Division VI.

Announced March 22, 2018

Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Haddon, Morgan & Foreman, P.C., Norman R. Mueller, Rachel A. Bellis, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE TERRY

¶ 1 When there is evidence in a murder case indicating that the defendant shot the victim either accidentally or in self-defense, is the trial court required to grant his request for a self-defense instruction? Under the facts of this case, we answer "yes" to this question. In our analysis, we harmonize potentially conflicting case law from our supreme court in People v. Naranjo , 2017 CO 87, 401 P.3d 534 ; Brown v. People , 239 P.3d 764 (Colo. 2010) ; People v. Garcia , 826 P.2d 1259 (Colo. 1992) ; Idrogo v. People , 818 P.2d 752 (Colo. 1991) ; Vigil v. People , 143 Colo. 328, 353 P.2d 82 (1960) ; Huffman v. People , 96 Colo. 80, 39 P.2d 788 (1934) ; and Jabich v. People , 58 Colo. 175, 143 P. 1092 (1914).

¶ 2 Defendant, Timothy Wakefield, appeals his judgment of conviction for second degree murder. We reverse and remand for a new trial.

I. Background

¶ 3 Defendant was convicted based on an altercation during which he was holding a gun that discharged, causing the victim's death.

¶ 4 Defendant and the victim were longtime friends, and the victim was visiting defendant from out of state. But in the hours leading up to the shooting, the victim and defendant argued and were involved in a series of increasingly violent physical fights, during one of which defendant lost consciousness.

¶ 5 There was no dispute that defendant was holding a shotgun when the victim was killed. Just after the shooting, defendant indicated to two people that he had acted in self-defense. But defendant testified at trial that when the victim stepped forward and reached for the gun, defendant pulled the gun up and away from the victim's reach, and the gun "went off." According to defendant, he thought that the victim "was going to take the gun and hurt [him] with it." Defendant maintained that he did not intend to shoot or hurt the victim.

¶ 6 Defendant was tried for first degree murder, but the jury instead convicted him of the lesser included offense of second degree murder.

II. Self-Defense Instruction

¶ 7 Defendant first argues that the trial court erred by declining to give his tendered jury instruction on self-defense. Because we agree, we reverse the conviction and remand for a new trial.

A. Legal Standards

¶ 8 We review de novo whether there is sufficient evidence to support giving a defendant's requested self-defense jury instruction. People v. Newell , 2017 COA 27, ¶ 19, 395 P.3d 1203. "When considering whether a defendant is entitled to [a] requested instruction[ ], we consider the evidence in the light most favorable to the defendant." Cassels v. People , 92 P.3d 951, 955 (Colo. 2004). The court's rejection of a defendant's tendered jury instruction is reviewed for constitutional harmless error. See Neder v. United States , 527 U.S. 1, 8-15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) ; Griego v. People , 19 P.3d 1, 8 (Colo. 2001).

¶ 9 Generally speaking, there are two types of defenses to a criminal charge. People v. Pickering , 276 P.3d 553, 555 (Colo. 2011). First, there are affirmative defenses, which seek to justify, excuse, or mitigate the commission of the act. Id. Second, there are traverses, or element-negating defenses, which "effectively refute the possibility that the defendant committed the charged act by negating an element of the act." Id.

¶ 10 Self-defense can be either an affirmative defense or an element-negating defense depending on the grade of homicide charged. When the charged offense requires intent, knowledge, or willfulness, as second degree murder does, see § 18-3-103(1), C.R.S. 2017, self-defense is an affirmative defense, Pickering , 276 P.3d at 555. "[I]t is possible for a person to knowingly cause the death of another, thus satisfying the basic elements of second-degree murder under section 18-3-103(1), but to nevertheless do so in self-defense as defined under section 18-1-704, [C.R.S. 2017,] and therefore not be guilty of second-degree murder." Pickering , 276 P.3d at 556.

¶ 11 "In Colorado, if presented evidence raises the issue of an affirmative defense, the affirmative defense effectively becomes an additional element, and the trial court must instruct the jury that the prosecution bears the burden of proving beyond a reasonable doubt that the affirmative defense is inapplicable." Id. at 555.

¶ 12 The supreme court has "consistently held that where the record contains any evidence tending to establish the defense of self-defense, the defendant is entitled to have the jury properly instructed with respect to that defense." Idrogo , 818 P.2d at 754 ; see also People v. Saavedra-Rodriguez , 971 P.2d 223, 228 (Colo. 1998) (quantum of evidence necessary for giving affirmative defense instruction is "a scintilla of evidence, or some evidence"). The evidence to support such an instruction may come from any source, and may even consist of "highly improbable testimony by the defendant." People v. Garcia , 28 P.3d 340, 347 (Colo. 2001) ; Newell , ¶¶ 21-22.

B. Discussion

1. Preservation

¶ 13 We start by rejecting the prosecution's contention that this issue is unpreserved and is therefore subject only to plain error review. Defense counsel preserved the issue by tendering an affirmative defense jury instruction for "deadly physical force in defense of person" as to the first degree and second degree murder charges. When tendering the self-defense instruction, counsel argued that there was sufficient evidence to support such an instruction, and that even if such evidence contradicted defendant's simultaneous claim that the shooting was accidental, he still had the right to a self-defense instruction. The court rejected the instruction, reasoning that defendant's testimony that he did not intend to pull the trigger was incompatible with the giving of an affirmative defense instruction for self-defense. We conclude that counsel's tendering of the instruction was sufficient to preserve the issue for appeal. See Newell , ¶ 19 ("Because defendant requested the instruction, any error in failing to give the instruction requires reversal unless the error did not affect defendant's substantial rights.").

2. The Self-Defense Statute

¶ 14 Defendant was convicted of second degree murder, which is defined as "knowingly caus[ing] the death of a person." § 18-3-103(1). Self-defense is an affirmative defense to second degree murder. Pickering , 276 P.3d at 555-56.

¶ 15 Colorado's self-defense statute, section 18-1-704(1), provides:

[A] person is justified in using physical force upon another person in order to defend himself ... from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.

The statute clarifies that "[d]eadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and ... [t]he actor has reasonable ground to believe, and does believe, that he ... is in imminent danger of being killed or of receiving great bodily injury." § 18-1-704(2)(a).

3. Evidence Supporting Self-Defense Instruction

¶ 16 Viewing the evidence in the light most favorable to defendant for this purpose, see Cassels , 92 P.3d at 955, we conclude that there was at least a scintilla of evidence presented that would support a self-defense instruction, see Saavedra-Rodriguez , 971 P.2d at 228. That evidence included the following testimony of defendant and others:

• Several hours before the shooting, the victim and defendant were wrestling, and the victim put defendant in a headlock, during which defendant could not breathe. A witness said that defendant turned "red" while in the headlock.

• Later that day, after an evening of drinking, the two got into an altercation in defendant's apartment during which defendant accused the victim of stealing defendant's pants, containing about $1800 in cash. The victim swung at defendant and dragged him into the kitchen by his neck. With his arms around defendant's neck, the victim bent defendant over the stove. Defendant fought back, but ultimately they landed on the floor, with the victim's hands still around defendant's neck, causing him to lose consciousness.

• Defendant later woke up in significant pain and ordered the victim to leave. The victim threatened defendant that he should "go back to sleep or I'll put you to sleep." Another struggle ensued during which the two landed on the living room television stand, breaking it.

• Defendant then retrieved his shotgun, at which time he felt "scared" and "helpless" because his brother and his dog were not around to protect him and help get the victim out of his apartment. Defendant "wanted the gun to stand between [the victim] and [himself to keep the victim] from fighting and hurting [defendant] physically any more."

• Though the victim initially left when confronted with the gun, he returned, pounding on the door and demanding access to look for his cell phone. The victim pushed his way back into the apartment, but left again when defendant threatened to call the police.

• When defendant found the victim's phone shortly thereafter, defendant ran out of the apartment, gun in hand, to return the phone to him. From ten feet away, defendant tossed the victim the phone, and the victim walked toward defendant.

• The victim then said, "Give me that gun. Fight me like a man. Let's fight like men." The victim moved toward defendant and reached for the gun. Defendant testified that he thought the victim was "going to take the gun and hurt me with

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