Walker v. People, 95SC260

Citation932 P.2d 303
Decision Date27 January 1997
Docket NumberNo. 95SC260,95SC260
Parties21 Colorado Journal 149 Jerome W. WALKER, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtSupreme Court of Colorado

David F. Vela, Colorado State Public Defender, James Grimaldi and Karen N. Taylor, Deputy State Public Defenders, Denver, for Petitioner.

Gale A. Norton, Attorney General, Richard Westfall, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Wendy J. Ritz, Assistant Attorney General, Criminal Enforcement Section, Denver, for Respondent.

Justice MULLARKEY delivered the Opinion of the Court.

The defendant, Jerome Walker (Walker), was convicted on October 2, 1992 in the Adams County District Court of second degree murder, section 18-3-103, 8B C.R.S. (1986). The court of appeals affirmed the conviction in an unpublished opinion, People v. Walker, No. 93CA0118 (Colo.App. Feb. 9, 1995), rejecting Walker's contention that the trial court's interpretation of the statutory scheme involving heat of passion and the prosecutor's comments during closing arguments impermissibly shifted the burden of proof of heat of passion to Walker in violation of due process of law. We granted certiorari to review the decision of the court of appeals, and we now affirm. 1

I.

On October 12, 1991, Walker and his friend, Hobart King (King), were drinking at Walker's home. Over the course of the day, arguments broke out between Walker and King, and, although the events leading up to the incident are disputed, Walker eventually fatally stabbed King with a knife.

On October 16, 1991, the People charged Walker with first degree murder. 2 Walker entered a plea of not guilty, and the case went to trial on September 28, 1992.

At the close of the evidence, the jury was instructed on first degree murder, second degree murder, reckless manslaughter and heat of passion manslaughter. In addition, the jury was presented with instructions on the affirmative defenses of intoxication, defense of premises, and Walker's primary theory of self-defense. Walker tendered sample instructions and verdict forms which were rejected by the trial court. Walker's tendered instructions defined heat of passion manslaughter as a lesser included offense of first and second degree murder, requiring the prosecution to disprove the existence of heat of passion beyond a reasonable doubt in order to convict Walker of first or second degree murder. The instructions ultimately provided to the jury, however, followed the literal provisions of the statutory offense and defined heat of passion manslaughter as a lesser nonincluded offense for which the prosecution bore the burden of affirmatively proving, rather than disproving, the existence of heat of passion. 3 The instruction read as follows In addition to determining the issues relating to the charge of First Degree Murder and the lesser included offenses of Second Degree Murder and Reckless Manslaughter, the jury shall determine whether the defendant, Jerome Walker, committed the lesser nonincluded offense of Heat of Passion Manslaughter. The defendant may be found guilty of a lesser non-included offense only if the evidence is sufficient to establish his guilt of the lesser non-included offense beyond a reasonable doubt.

. . . . .

You should bear in mind that the burden is always upon the prosecution to prove beyond a reasonable doubt each and every material element of any lesser non-included offense; the law never imposes upon a defendant in a criminal case the burden of calling any witnesses or producing any evidence.

After considering all the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of Heat of Passion Manslaughter.

After considering all the evidence, if you decide the prosecution has failed to prove each of the elements beyond a reasonable doubt, you shoud [sic] find the defendant not guilty of Heat of Passion Manslaughter.

The court also provided a separate verdict form for the heat of passion manslaughter offense. Thus, the jury received two verdict forms: the first required the jury to return a verdict on first degree murder or one of the lesser included offenses of second degree murder or reckless manslaughter, and the second required the jury to consider separately Walker's innocence or guilt on the heat of passion manslaughter offense. The jury, therefore, was required to make a finding on the heat of passion manslaughter offense regardless of its decision on the other counts. During closing arguments, the prosecutor asserted several times that there was no evidence indicating heat of passion. On October 2, 1992, the jury returned a verdict of guilty of second degree murder 4 and a verdict of not guilty of heat of passion manslaughter.

Walker contends that the effect of the trial court's interpretation of the statutory scheme and the prosecutor's closing comments was to impermissibly place the burden of proof of heat of passion on him in violation of due process of law.

The court of appeals affirmed the trial court's rulings and the judgment, holding that heat of passion manslaughter is a separate offense from murder, rather than a statutory mitigating factor of, or an affirmative defense to, second degree murder. In addition, the court of appeals found that the trial court had adequately described the prosecutor's burden of proof and that the prosecutor's comments did not constitute reversible error.

II.

To decide the case before us, we must first consider whether the trial court correctly interpreted the criminal provisions as written and then determine if such interpretation violated due process of law.

A.

Walker's primary argument is that the burden of proof of heat of passion manslaughter was placed on him in violation of due process of law. He contends that the trial court erroneously interpreted the statutory scheme in determining that heat of passion manslaughter is a lesser nonincluded offense rather than a factor in mitigation of, or affirmative defense to, second degree murder. In order to address this question, we begin with the criminal provisions at issue.

At the time of Walker's crime, heat of passion manslaughter was a class 4 felony defined as follows:

18-3-104. Manslaughter. (1) A person commits the crime of manslaughter if:

. . . . .

(c) He knowingly causes the death of another person under circumstances where the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person killing sufficiently to excite an irresistible passion in a reasonable person; but, if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the killing is murder.

(2) Manslaughter is a class 4 felony.

§ 18-3-104, 8B C.R.S. (1986). At the same time, second degree murder was a class 2 felony under the following definition:

18-3-103. Murder in the second degree. (1) A person commits the crime of murder in the second degree if:

(a) He causes the death of a person knowingly, but not after deliberation.

§ 18-3-103, 8B C.R.S. (1986). Thus, under the law as it existed when the crime occurred, heat of passion manslaughter consisted of all the elements necessary to prove second degree murder plus additional elements involving heat of passion. 5

Walker concedes that the heat of passion manslaughter statute does not, on its face, shift the burden of proof of heat of passion to the defendant. Nonetheless, Walker argues that, under Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the appropriate inquiry is whether the effect of the law as applied and enforced by the state shifts the burden of proof to the defendant in violation of due process of law.

Walker contends that because the jury was instructed that the prosecution bore the burden of proving, rather than disproving, the existence of heat of passion, Walker was denied the mitigating benefits of heat of passion. In particular, Walker reasons that, because heat of passion manslaughter as defined in the statute requires proof, in part, of all the elements of the more serious offense of second degree murder, the prosecution would have no incentive to charge or attempt to prove a heat of passion charge. Walker thus argues that a literal interpretation of the statute effectively requires a defendant to assume the burden of proof in order to receive the mitigating benefit of heat of passion. We disagree.

In Rowe v. People, 856 P.2d 486 (Colo.1993), we considered the element of heat of passion as provided in an amended version of the statute defining first degree assault. In that case, the defendant had been convicted of an offense of first degree assault committed under heat of passion. Id. at 488. We were called upon to decide whether the General Assembly's amendment to the first degree assault statute provided the element of heat of passion as a statutory mitigating factor, a separate offense, or as an affirmative defense.

The amended first degree assault statute contained a provision stating that "[i]f assault in the first degree is committed under circumstances where the act causing the injury is performed ... upon a sudden heat of passion ... it is a class 5 felony[,][but][i]f [the] assault ... is committed without [heat of passion] it is a class 3 felony." § 18-3-202, 8B C.R.S. (1986).

The prosecution requested and the trial court gave an instruction on the offense of first degree assault committed under heat of passion as a lesser included offense of first degree assault. Rowe, 856 P.2d at 488. We concluded, in agreement with the court of appeals, that heat of passion had been provided as a statutory mitigating factor, rather than a separate offense. Id. at 489. We noted that the element...

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