People v. Williams, No. 99CA0668.

Docket NºNo. 99CA0668.
Citation23 P.3d 1229
Case DateNovember 24, 2000
CourtCourt of Appeals of Colorado

23 P.3d 1229

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Brett A. WILLIAMS, Defendant-Appellant

No. 99CA0668.

Colorado Court of Appeals, Div. V.

November 24, 2000.

Certiorari Denied May 21, 2001.


23 P.3d 1231
Ken Salazar, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee

Susan L. Foreman, Boulder, CO, for Defendant-Appellant.

Opinion by Judge RULAND.

Defendant, Brett A. Williams, appeals from the judgment of conviction entered upon a jury verdict finding him guilty of first degree assault. He also challenges the sentence imposed. We affirm.

According to the prosecution's evidence, defendant and three other men brutally assaulted the victim, a cab driver, in the parking lot of an apartment building. Subsequent to the attack, the cab driver died, and an autopsy revealed that his death was the result of blunt force trauma to his head and neck.

Defendant and another assailant were charged with first degree murder, and the two men were tried together. Defendant's theory of the case was that he was present during the attack, but did not participate. One of the other assailants testified against defendant after pleading guilty to second degree murder.

At the close of the evidence, the jury was instructed on first degree murder and the lesser-included offenses of second degree murder and manslaughter. As pertinent here, after the co-defendants requested lesser non-included instructions for second and third degree assault, the court ruled, over defendant's objection, that the jury should also be instructed on first degree assault.

The jury found defendant guilty of first degree assault, and he was sentenced to 20 years in the Department of Corrections (DOC). The co-defendant was found guilty of manslaughter, and sentenced to 12 years in DOC.

I.

Defendant first contends that the trial court erred in instructing the jury on the lesser non-included offense of first degree assault. Specifically, defendant argues that his due process rights were violated because he did not receive proper notice that he was charged with the element of causing injury by means of a deadly weapon. We find no reversible error.

Generally, a lesser non-included offense instruction may be given only if there is evidence to support it and the defendant requests it or consents to it. See People v. Bielecki, 964 P.2d 598 (Colo.App.1998). When such an instruction is requested, the information is thereby deemed to be amended to include that charge. People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974). However, the prosecution may also be entitled to an instruction on a lesser non-included offense if the defendant has proper notice of that offense. See People v. Garcia, 940 P.2d 357 (Colo.1997).

A.

Here, the record indicates that defendant's counsel requested both second and third degree assault instructions. Indeed, defendant's counsel specifically stated at trial, "I would like the record to reflect that counsel for [defendant] submitted the lessers of second and third degree assault only." Additionally, both the discussions on the instructions and the trial court's ruling assume the second and third degree assault instructions were submitted on behalf of both defendants.

23 P.3d 1232
Defendant now suggests that certain statements made in post-conviction pleadings indicate defendant objected to the second degree assault instruction. Nevertheless, the contents of the trial transcripts are dispositive in resolving this issue. See People v. Rodriguez, 914 P.2d 230 (Colo.1996). Hence, we analyze the issue in the context of defendant's request for a lesser non-included instruction on second and third degree assault

B.

A conviction for both first degree and second degree assault requires that the defendant have caused injury to the victim by use of a deadly weapon. See §§ 18-3-202(1)(a) and 18-3-203(1)(b), C.R.S.2000. Even if we assume the information charging defendant with first degree murder was insufficient to give him notice of the deadly weapon element of first degree assault, we conclude that defendant effectively waived any deficiency in this regard.

The second degree assault instruction tendered by defendant properly included a deadly weapon element. See § 18-3-203(1)(b). The information was thus in effect amended to include that charge. See People v. Skinner, 825 P.2d 1045 (Colo.App.1991). Further, after the court ruled that giving the first degree assault instruction was proper if the second and third degree assault instructions were to be given, defendant did not withdraw his request for the lesser non-included offenses.

Under these circumstances, we agree with the trial court that defendant effectively waived the notice requirement and that, therefore, the instruction on first degree assault was properly given.

II.

Defendant next contends that he is entitled to a new trial because the complicity instruction given by the trial court did not properly inform the jury of the elements of that theory of criminal responsibility. Specifically, defendant asserts that the jury was not properly instructed that a complicitor must share the mental state of the principal. We disagree.

Instructional error may result if the language of the instructions create a reasonable possibility that the jury could have been misled relative to reaching a verdict. People v. Silva, 987 P.2d 909 (Colo. App.1999). However, the trial court is given substantial discretion in formulating the instructions so long as they are correct statements of the law and fairly and adequately cover the issues presented. See People v. Davis, 935 P.2d 79 (Colo.App.1996).

Here, defendant's objection to the complicity instruction was...

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15 practice notes
  • People v. Auman, No. 99CA0016.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 26, 2002
    ...courts consider the surrounding circumstances, including the context provided by other counts in the information. People v. Williams, 23 P.3d 1229 (Colo.App.2000)(Williams Although defendant now claims lack of specificity as to which burglary count was the predicate offense for felony murde......
  • People v. Pahl, No. 01CA2020.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 24, 2006
    ...instructions so long as they are correct statements of the law and fairly and adequately cover the issues presented. People v. Williams, 23 P.3d 1229 (Colo.App.2000). A conviction will not be reversed on a claimed deficiency in a jury instruction if the instructions, read as a whole, adequa......
  • Zuniga v. Falk, Civil Action No. 13-cv-02247-WJM
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • February 13, 2015
    ...the pattern complicity instruction correctly instructs the jury. We therefore discern no error.Defendant's reliance on People v. Williams, 23 P.3d 1229 (Colo. App. 2000), is misplaced. In Williams, the trial court gave the pattern complicity instruction to the jury, and later clarified comp......
  • People v. Pickering, No. 10SC446.
    • United States
    • Colorado Supreme Court of Colorado
    • September 12, 2011
    ...their language creates “a reasonable possibility that the jury could have been misled relative to reaching a verdict.” People v. Williams, 23 P.3d 1229, 1232 (Colo.App.2000); see also People v. DeHerrera, 697 P.2d 734, 740 (Colo.1985)(concluding that the “unduly confusing” jury instruction ......
  • Request a trial to view additional results
15 cases
  • People v. Auman, No. 99CA0016.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 26, 2002
    ...courts consider the surrounding circumstances, including the context provided by other counts in the information. People v. Williams, 23 P.3d 1229 (Colo.App.2000)(Williams Although defendant now claims lack of specificity as to which burglary count was the predicate offense for felony murde......
  • People v. Pahl, No. 01CA2020.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 24, 2006
    ...instructions so long as they are correct statements of the law and fairly and adequately cover the issues presented. People v. Williams, 23 P.3d 1229 (Colo.App.2000). A conviction will not be reversed on a claimed deficiency in a jury instruction if the instructions, read as a whole, adequa......
  • Quintana v. Trani, Civil Action No. 15-cv-01569-PAB
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • March 25, 2019
    ...crime is referred to as a per se crime of violence and crime of violence counts do not need to be separately charged); People v. Williams, 23 P.3d 1229, 1234 (Colo. App. 2000) (first degree assault is a per se crime of violence). Page 39Quintana III, Docket No. 28-1 at 5-6. The Colorado Cou......
  • People v. Pickering, No. 10SC446.
    • United States
    • Colorado Supreme Court of Colorado
    • September 12, 2011
    ...their language creates “a reasonable possibility that the jury could have been misled relative to reaching a verdict.” People v. Williams, 23 P.3d 1229, 1232 (Colo.App.2000); see also People v. DeHerrera, 697 P.2d 734, 740 (Colo.1985)(concluding that the “unduly confusing” jury instruction ......
  • Request a trial to view additional results

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