People v. Watkins

• Decision Date: 23 October 1978
• Docket Number: No. 27914,27914
• Citation: 586 P.2d 43,196 Colo. 377
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Henry Lee WATKINS, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 43

586 P.2d 43

196 Colo. 377

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Henry Lee WATKINS, Defendant-Appellant.

No. 27914.

Supreme Court of Colorado, En Banc.

Oct. 23, 1978.

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Linda Palmieri Rigsby, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Mary G. Allen, Margaret L. O'Leary, Deputy State Public Defenders, Denver, for defendant-appellant.

PRINGLE, Justice.

Defendant Henry Lee Watkins was convicted of second-degree murder of Walter McDonald and of first-degree assault upon David Buckner. He contends that the trial court's refusal to give instructions to the jury relating to lesser included offenses under the circumstances of this case was error. We agree and reverse.

A rather full recital of the evidence in this case is necessary to put the legal issues in perspective. Eddie Watkins and the deceased, Walter McDonald, argued over access to the pool table at New Joe's Bar where they were drinking. Eddie and Walter apparently resolved the dispute between them, but the argument flared again between Walter and a friend of Eddie's. This latter dispute was left unresolved.

Walter McDonald and his brother Byron then went to another bar where they met David Buckner. Evidently there was some discussion that they should return to New Joe's and "settle the score." They did, in fact, return to New Joe's but walked past the defendant and Eddie and into the bar. The defendant testified, however, that one of them pointed out his brother Eddie and said, "That's our man." Later the two McDonald brothers, Buckner and Eddie went outside to play craps.

During the dice game the shooting occurred. The defendant testified that he saw David Buckner pull a knife on his brother when Eddie bent down to throw the dice and that Walter McDonald had yelled to Buckner, "Cut that nigger's throat." When the defendant tried to warn his brother, Buckner turned toward him with the knife. The defendant fired his gun at Buckner. The defendant testified that Walter McDonald had started toward him with a gun and that he had shot him in self-defense.

An open knife was later found in the bar but no other evidence was presented to support the defendant's testimony. The trial judge instructed the jury on first and second-degree murder but refused the defendant's request that the jury be instructed on criminally negligent homicide. The trial court based its refusal on the grounds that there was No evidence that Walter McDonald's death was negligently rather than intentionally caused. The jury was also instructed on the affirmative defense of self-defense.

I

Error which requires reversal stems from the trial court's refusal to give defendant's tendered instruction on criminally negligent homicide. We held in Read v. People, 119 Colo. 506, 205 P.2d 233 (1949), and reiterated in People v. Miller, 187 Colo. 239, 529 P.2d 648 (1974), that "when there is any evidence, however improbable, unreasonable or slight, which tends to reduce the homicide to (a lesser grade), the defendant is entitled to an instruction thereon upon the hypothesis that the same is true, and that it is for the jury, under proper instructions, and not the trial judge, to weigh and consider the evidence and determine therefrom what grade of crime, if any, was committed; and that the court's refusal to instruct thereon is reversible error."

During the trial, the defendant testified that he believed, in good faith, that his brother Eddie's, and then his own, life was threatened. Such a belief, even if unreasonable, presents a case for criminally negligent homicide. Section 18-3-105, C.R.S.1973.

The People cite People v. Shannon, 189 Colo. 287, 539 P.2d 480 (1975), and People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974), to buttress their position that there was no "rational basis" to justify a criminally negligent homicide instruction. In Shannon, the victims suffered grievous gunshot wounds at the hands of the defendant and there was absolutely no evidence given to support a lesser charge of third-degree assault. In Rivera, we specifically held that the defendant is entitled to have the court instruct the jury on the defense theory of the case as revealed by the evidence. The mere fact that the evidence in this case was supplied by the defendant who took the stand in his own defense does not preclude it from the jury's...