People v. Welsh

• Decision Date: 05 April 2007
• Docket Number: No. 04CA2581.,04CA2581.
• Citation: 176 P.3d 781
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Claire Christine WELSH, Defendant-Appellant and Cross-Appellee.
• Court: Colorado Court of Appeals

176 P.3d 781

The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Claire Christine WELSH, Defendant-Appellant and Cross-Appellee.

No. 04CA2581.

Colorado Court of Appeals, Div. V.

April 5, 2007.

Rehearing Denied May 24, 2007.

Certiorari Denied February 4, 2008.

John W. Suthers, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado; John R. Newsome, District Attorney, Doyle Baker, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellee and Cross-Appellant.

Douglas K. Wilson, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge VOGT.

Defendant, Claire Christine Welsh, appeals the judgment of conviction entered on a jury verdict finding her guilty of first degree murder. The People cross-appeal, challenging two rulings made by the trial court. We affirm the judgment, dismiss the cross-appeal as to one ruling, and approve the second ruling.

Defendant shot and killed her boyfriend after he attempted to end their relationship. She was charged with first degree murder and pled not guilty by reason of insanity. Her conviction was reversed on appeal. People v. Welsh, 58 P.3d 1065 (Colo.App.2002), aff'd, 80 P.3d 296 (Colo.2003). On retrial, the jury again rejected defendant's insanity defense and found her guilty of first degree murder.

I. APPEAL

We conclude that defendant's contentions of error regarding jury instructions, prosecutorial misconduct, expert testimony, and hearsay evidence, whether considered singly or cumulatively, do not warrant reversal.

A.

Defendant raises two claims of error in regard to the trial court's jury instructions. We find no grounds for reversal.

A trial court has the duty to instruct the jury correctly on the, law applicable to the case. People v. Stewart, 55 P.3d 107, 120 (Colo.2002). However, the form of the instructions is within that court's sound discretion. People v. Curia, 937 P.2d 386, 392 (Colo.1997). Jury instructions framed in the language of the statute are generally sufficient. People v. O'Connell, 134 P.3d 460, 465 (Colo.App.2005).

1.

Defendant contends the instruction on the affirmative defense of insanity unconstitutionally shifted to her the burden of proving sanity. Specifically, she asserts the instruction failed to include language conveying the notion that the court had to decide as a threshold matter whether there was some credible evidence to support the insanity defense, and that, if the court found that that threshold showing had been met, there was no further reason to inform the jury of the presumption of sanity. We are not persuaded.

Because defendant did not object to the insanity instruction at trial, we may reverse only for plain error. In the context of jury instructions, plain error must be "both obvious and substantial." It will be found only if the defendant shows that the instruction affected a substantial right and that there is a reasonable possibility that the error contributed to the conviction. Failure to instruct the jury properly does not constitute plain error if the relevant instruction, read in conjunction with other instructions, adequately informs the jury of the law. People v. Miller, 113 P.3d 743, 750 (Colo.2005).

Section 16-8-105.5(2), C.R.S.2006, states, in relevant part: "Every person is presumed to be sane; but, once any evidence of insanity is introduced, the people have the burden of proving sanity beyond a reasonable doubt."

Here, the jury was instructed that:

The evidence presented in this case has raised the affirmative defense of insanity. The law presumes everyone to be sane. However, after some evidence of insanity is introduced, the burden of proof is upon the prosecution to prove to the satisfaction of the jury beyond a reasonable doubt that the defendant was sane at the time of the commission of the crime(s) charged.

The instruction is based on the pattern instruction found at CJI-Crim. 3:04-A (1983), and it tracks the language of § 16-8-105.5(2).

We acknowledge that, as defendant argues, there would appear to be little if any reason to inform the jury of the presumption of sanity where, as here, the defendant has effectively overcome the presumption by presenting evidence of insanity sufficient to allow the issue to go to the jury. However, the question presented here is whether giving an instruction including the "presumption" language was plain error. We conclude that it was not.

First, at the time of trial, it would not have been "obvious" to the trial court that giving this pattern instruction was error. See People v. Miller, supra, 113 P.3d at 750. On the contrary, divisions of this court had previously concluded that the instruction given here did not impermissibly shift the burden of proof on the insanity defense. See People v. Farrell, 10 P.3d 672, 678-79 (Colo.App.2000), rev'd on other grounds, 34 P.3d 401 (Colo. 2001); People v. Bielecki, 964 P.2d 598, 606 (Colo.App.1998).

Further, the jury was repeatedly instructed regarding the prosecution's burden of proof. In the instruction at issue here, the jury was told that "the burden of proof is upon the prosecution to prove to the satisfaction of the jury beyond a reasonable doubt that the defendant was without the affirmative defense of insanity as to the crime charged, as well as to all the other elements of the crime charged in count one." Particularly in light of the court's additional instructions, which the jury is presumed to have followed, see People v. Bielecki, supra, 964 P.2d at 606, giving the challenged insanity instruction did not constitute plain error. See People v. Miller, supra.

Nor did plain error result from the prosecutor's reference to the instruction in closing argument ("You have the instruction which says the law presumes everyone to be sane until there's evidence . . . otherwise. So the fact that she has a mental illness is not enough, ladies and gentlemen. It's not enough."). A prosecutor is entitled to comment in closing on the instructions to be given to the jury. See People v. Perea, 126 P.3d 241, 247 (Colo.App.2005). The prosecutor's statement that defendant's mental illness was "not enough" under the instruction was an incorrect statement of the law to the extent it implied that insanity was not a defense or that the jury could not find defendant insane. However, the comment, to which there was no objection, did not itself amount to plain error or render the jury instruction plainly erroneous.

2.

Defendant tendered the following instruction:

Even if you determine that Ms. Welsh was not insane at the time of the commission of any of the offenses charged, you may consider all of the evidence presented concerning her mental condition and capacity in assessing whether she acted "after deliberation," "intentionally," or "knowingly" at that time. The burden is always on the prosecution to prove each element of each charge beyond a reasonable doubt.

If you find that, based on all the evidence presented concerning her mental state and condition . . . Ms. Welsh did not, or was unable to, act intentionally or after deliberation, then you must find her not guilty of the charges containing, that element. Likewise if you find that, based upon all the evidence presented concerning her mental state and condition . . . Ms. Welsh did not, or was unable to, act knowingly, you must find her not guilty of the charges containing that element.

The trial court declined to give the instruction, finding it duplicative of other instructions. We agree with the trial court.

A trial court is not required to give an instruction that is encompassed in the court's other instructions. People v. Darbe, 62 P.3d 1006, 1010 (Colo.App.2002); see People v. Vanrees, 125 P.3d 403, 409-10 (Colo. 2005) (recognizing right of defendant to contest whether he formed culpable mental state of charged crime, and concluding that court's instructions, read as a whole—especially, instruction telling jury it could consider "any evidence" bearing on element of "knowingly" —adequately informed jury that it could consider evidence of defendant's mental slowness in determining whether he acted knowingly).

Here, the court's instructions informed the jury of the presumption of innocence and the prosecution's burden of proving every element of the charged offenses beyond a reasonable doubt. The jury was also instructed regarding the applicable mental states for the charged offenses, and it was told that the "culpable mental state is as much an element of the crime as the act itself and must be proven beyond a reasonable doubt, either by direct or circumstantial evidence." The elemental instructions told the jurors that they had to consider "all the evidence" in determining whether the prosecution had proved the elements of the crime beyond a reasonable doubt. Finally, instruction number 21 advised the jurors of the defense position that defendant never intended to kill the victim and that her mind was "so defective at the time of [the victim's] death that she could not deliberate and could not have formed the necessary intent" to kill him.

These instructions, taken together, sufficiently informed the jury of the substance of defendant's tendered but refused instruction.

B.

Defendant contends that reversal is required based on numerous instances of asserted prosecutorial misconduct, primarily during closing argument. We disagree.

Claims of improper argument must be evaluated in the context of the argument as a whole and in light of the evidence before the jury. A prosecutor may comment on the evidence admitted at trial, the reasonable inferences that can be drawn from the evidence, and the instructions given to the jury. He or she may also point to circumstances that raise questions about, or cast doubt on, a witness's testimony, and may draw reasonable inferences from the evidence as...