The People Of The State Of Colo. v. Villarreal
| Decision Date | 20 August 2009 |
| Docket Number | No. 08CA0713.,08CA0713. |
| Citation | 231 P.3d 29 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee,v.Henrietta VILLARREAL, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
Nora V. Kelly, P.C., Nora V. Kelly, Denver, CO, for Defendant-Appellant.
Opinion by Judge DAILEY.
Defendant, Henrietta Villarreal, appeals the district court's order denying her Crim. P. 35(c) claims of ineffective assistance of counsel with respect to jury instructions, or lack thereof, on attempted first degree murder, intoxication, heat of passion provocation, and unanimity in connection with second degree burglary. The very same jury instructions had been the subject of defendant's previous direct appeal.
We affirm the district court's order denying defendant's claims of ineffective assistance of counsel.
Late one night, a female intruder entered the victim's apartment through the locked door and attacked her by hitting her, biting off a chunk of her ear, and stabbing her repeatedly with a knife in the back of the neck, lower back, chest, face, and extremities. During the assault, the intruder called the victim a slut and a whore and said she would not let the victim “take [her] man,” stated she was “gonna kill” the victim, and expressed her intent to stay there until the victim died. Upon learning that the victim was expecting a visitor to arrive, the intruder changed her mind and left the victim with the telephone line cut and the apartment door shut. The victim was able to open the front door and fall outside, where her neighbors found her. She could have died from her injuries without medical attention. Instead, the attack left her permanently disfigured.
At trial, the victim testified regarding the attack and statements made by the woman who attacked her. The victim identified defendant as her assailant, having seen defendant on several occasions with the victim's former boyfriend (ex-boyfriend). Although the ex-boyfriend had told the victim that defendant was his cousin, defendant had been in a romantic relationship with the ex-boyfriend for more than ten years. The victim also testified that the ex-boyfriend told her defendant may have taken from him a duplicate of the victim's key, which the police found on the floor in the victim's apartment after the attack.
When interviewed by the police, defendant admitted she had fought with the victim at the victim's apartment on the night in question.
However, defendant argued at trial that the police had coerced her into making that statement, and that, due to her alcohol consumption during the day, she had not clearly recalled the events of the evening when interrogated. Defendant argued that she had been misidentified as the perpetrator of the crimes. No physical evidence connected her to the crimes, and the ex-boyfriend testified in support of an alibi defense.
The jury returned guilty verdicts of attempted first degree murder, first degree assault, first degree burglary, and three crime of violence counts. Another division of this court affirmed the convictions on direct appeal. People v. Villarreal, 131 P.3d 1119 (Colo.App.2005) ( Villarreal ).
Villarreal, 131 P.3d at 1124. Because counsel had neither objected nor presented instructions on these issues for the trial court's consideration, the Villarreal division reviewed defendant's claims for plain error and rejected each of them.
On direct appeal, defendant contended that the trial court erred by (1) omitting the culpable mental state elements of “intentionally” and “after deliberation” from the instruction on the elements of attempted first degree murder, and (2) allowing defendant to be convicted upon a “mere showing of ‘an attempt to attempt’ the offense.” Id. at 1124-25. Although the Villarreal division agreed that the trial court had erred, it concluded that the trial court had not committed plain error. Id. at 1125.
As to the first point, the division held that plain error does not occur when, as here, the applicable culpable mental states are otherwise set forth in separate instructions on the elements of the crime the defendant is alleged to have attempted. Id. As to the second point, the division concluded that plain error did not occur as a result of the attempt instruction because the error did not relate to a contested issue at trial and because of the strength of the evidence related to the attack. Specifically, although defendant contested her identity as the perpetrator of the attack, she did not contest at trial “whether the conduct of the assailant was sufficient to satisfy the actus reus element of attempted first degree murder, and the evidence was otherwise overwhelming.” Id.
Defendant also contended on direct appeal that, because there was evidence she had been drinking beer on the day of the attack, the trial court reversibly erred by failing to instruct the jury, sua sponte, on the defense of voluntary intoxication. Id. Because defendant pursued a theory of misidentification, the division concluded that the trial court had not committed plain error by failing to instruct the jury on the defense of intoxication, which was inconsistent with her theory of defense. Id. at 1125-26.
The Villarreal division likewise rejected defendant's claim that the trial court committed plain error when it did not (1) instruct the jury that the absence of “heat of passion” provocation is an element or sentence enhancer of first degree assault or (2) otherwise instruct the jury on heat of passion provocation. Id. at 1126-28.
As to the first point, after a thorough analysis based on principles of statutory construction and constitutional law, the division concluded that Colorado's first degree assault statute does not presume any element of the crime and the statutory mitigating circumstance of acting upon a provoked heat of passion is distinct from and would not negate any element of first degree assault. Thus, the division held, “the prosecution need not prove, and the jury need not be instructed upon, the absence of heat of passion provocation as an element of the crime.” Id. at 1127.
As to the second point, the division found there was no plain error because the defense of heat of passion provocation would have been inconsistent with the theory of defense and, in any event, the evidence was insufficient to warrant such an instruction in this case. Specifically, there was no evidence of an “event sufficient to provoke in a reasonable person a passion to cause serious bodily injury.” Id. at 1128.
The Villarreal division also rejected defendant's claim that the first degree burglary conviction must be reversed because the jury was not instructed it must unanimously agree on the offense she intended to commit upon entering the victim's apartment. Id. at 1128-29. The division found that, because the jury unanimously found defendant guilty of two of the possible felonies underlying the burglary-attempted first degree murder and first degree assault-any error in failing to include a special unanimity instruction was harmless. Id.
The Colorado Supreme Court denied defendant's petition for writ of certiorari.
The same jury instructions, and the same issues and allegations of error in those jury instructions, formed the basis of defendant's Crim. P. 35(c) motion. However, in her postconviction motion, as relevant here, defendant sought relief upon allegations that the jury instructions, or lack thereof, were the result of ineffective assistance of counsel for failing to object to, or propose, the instructions at issue.
Specifically, as relevant to this appeal, defendant alleged counsel was constitutionally ineffective for failing to (1) object to the jury instruction on attempt on the basis that it (a) did not instruct the jury that defendant must have acted with intent to cause the death of another person after deliberation and (b) did not instruct the jury that it must find she took a substantial step toward commission of the offense; (2) request a jury instruction on “heat of passion” with respect to the first degree assault charge; (3) request an instruction on the “affirmative defense of intoxication”; and (4) object to the burglary instruction on the basis that it did not require the jury to unanimously agree on the offense defendant intended to commit when she entered the building.1
At the postconviction hearing, the district court expressed its view that the motion could be decided as a matter of law based on the file and record, including the Villarreal opinion, and its skepticism that the evidentiary hearing was necessary. Nonetheless, the court heard testimony from an expert witness on criminal defense. Although the expert opined that trial counsel had made errors with respect to the jury instructions, he specifically declined to offer an opinion regarding whether the outcome of the case was affected by the alleged errors. After hearing arguments of counsel, the district court denied the motion in a lengthy ruling in open court.
In postconviction proceedings, the legality of the judgment and...
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