Thomas v. People, 89SC668
| Decision Date | 12 November 1991 |
| Docket Number | No. 89SC668,89SC668 |
| Parties | Joseph D. THOMAS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
David F. Vela, Colo. State Public Defender, Barbara S. Blackman, Chief Appellate Deputy State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, for petitioner.
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Wendy J. Ritz, Asst. Atty. Gen., Denver, for respondent.
Petitioner, Joseph Thomas, was convicted by a jury of attempted heat of passion manslaughter, 1 first degree assault, 2 and crime of violence. 3 The charges resulted from an altercation between Thomas and Roy Preston that occurred on the evening of November 30, 1986. On appeal, the Court of Appeals affirmed the conviction, and in so doing rejected Thomas' assertion that the trial court erred in failing to instruct the jury that the affirmative defense of self-defense applied to the charge of attempted heat of passion manslaughter. People v. Thomas, 789 P.2d 470 (Colo.App.1989). Having granted Thomas' petition for certiorari, we affirm the judgment of the Court of Appeals, but disapprove the holding that self-defense is not applicable to the offense of attempted heat of passion manslaughter.
In October 1986, Preston, who owned a thrift store, introduced himself to Thomas at a bus terminal and offered Thomas part-time employment and transportation to the store from Thomas' residence. Thomas accepted the offer.
On November 30, 1986, Thomas arrived at the store at approximately 6:30 in the evening in response to an earlier telephone call made by Preston. Thomas accepted Preston's invitation to spend the night in the store in order to begin work early the next morning. Later in the evening Preston locked the doors to the store and he, Thomas, and Juan, another employee, went downstairs to go to bed. Thomas and Juan were to sleep in one basement room and Preston was to sleep in a separate room.
Thomas testified at trial that shortly after he went to bed Preston entered the room and began rubbing Thomas' back; that when Thomas protested, Preston said, "I know that you like it"; and that Preston began pulling at Thomas' sweat pants and making sexual advances. Thomas further testified that a struggle ensued; that Thomas eventually freed himself, ran up the staircase to the store, and seized a machete; and that when Preston pursued Thomas in the store, Thomas began to strike out with the machete. Thomas also testified that Preston initially retreated but then returned and attempted to grab the weapon; that Thomas then struck Preston again; and that Thomas ultimately kicked Preston down the stairs. During cross-examination Thomas testified that he was frightened and wanted to kill Preston.
Preston suffered a skull fracture, a total loss of vision in his right eye, numerous lacerations of the head and shoulders, an extreme loss of blood, and two deep cuts to his hands. Preston testified at trial that he could not recall what happened from the time he went to bed until he woke up in the intensive care unit of a Denver hospital. He also testified that he later discovered that his watch was missing and that a wallet containing approximately $600 in cash had been removed from his trousers and left empty in his truck.
Thomas was charged with the offenses of attempted first degree murder, 4 first degree assault, and crime of violence. At trial the jury was also instructed with regard to the lesser included offense of attempted second degree murder 5 and the lesser non-included offense of attempted heat of passion manslaughter. Thomas tendered a general instruction asserting a defense of heat of passion resulting from the extreme provocation of a homosexual assault, and the trial court instructed the jury that self-defense was an affirmative defense to the charged offenses of attempted first degree murder, attempted second degree murder and first degree assault. However, Thomas did not tender an instruction stating specifically that self-defense constituted an affirmative defense to the offense of attempted heat of passion manslaughter.
Thomas argues that the trial court and the Court of Appeals erred in concluding that the affirmative defense of self-defense may not be asserted as a defense to the offense of attempted heat of passion manslaughter. In Sanchez v. People, No. 90SC262, --- P.2d ---- (Colo. Nov. 12, 1991), we held that self-defense is an affirmative defense to the offense of heat of passion manslaughter. We therefore agree that the trial court and the Court of Appeals erred, but do not find the error to constitute sufficient grounds for reversal of the conviction.
At trial, the trial court, the prosecutor and Thomas' attorney discussed the instructions to be given to the jury. Defense counsel did not request an instruction specifically linking the defense of self-defense to the charge of attempted heat of passion manslaughter. To the contrary, he acquiesced in the trial court's conclusion that self-defense was not applicable to the offense of attempted heat of passion manslaughter, as the following colloquy demonstrates:
Conceding that he neither sought such a specific instruction nor objected to a lack thereof at the time the trial court instructed the jury, Thomas argues that during jury deliberations he did object to the lack of such instruction. The record does not support this assertion.
During jury deliberations, the jury foreman submitted the following question to the trial court: "Does the 'affirmative defense' apply to heat of passion manslaughter[?]" The trial court, the prosecutor and defense counsel discussed this development, and the trial court answered the question in the negative. Prior to so responding to the jury's inquiry, the trial court reiterated its conclusion that the defense of self-defense was inconsistent with the offense of heat of passion manslaughter. When the trial court specifically asked defense counsel if his position had changed with respect to that...
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