v. Ramirez , 2019 COA 16 ( 2019 )


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  •      The summaries of the Colorado Court of Appeals published opinions
    constitute no part of the opinion of the division but have been prepared by
    the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
    Any discrepancy between the language in the summary and in the opinion
    should be resolved in favor of the language in the opinion.
    SUMMARY
    February 7, 2019
    2019COA16
    No. 14CA1958, People v. Ramirez — Criminal Law — Jury
    Instructions — Instructional Errors; Criminal Procedure —
    Plain Error
    On remand from the supreme court, a division of the court of
    appeals reconsiders a prior division’s opinion in this case in light of
    the decision in People v. Rediger, 
    2018 CO 32
    . The division
    concludes that defense counsel’s error in declining to object to an
    inapplicable jury instruction amounted to a forfeiture, and not a
    waiver, as described in the prior division’s opinion. Forfeiture is the
    failure to make the timely assertion of a right, whereas waiver is the
    intentional relinquishment of a known right or privilege. When, as
    in this case, there is no indication that defense counsel recognized
    the instructional error, and there is no rational, strategic reason for
    the defense to want such an erroneous instruction to be given,
    counsel’s failure to perceive and address the error is attributable to
    neglect. In that instance, the instructional error has not been
    waived, but merely forfeited.
    Because the trial court’s failure to properly instruct the jury
    on “deadly physical force” amounted to prejudicial plain error, the
    division reverses the conviction of first degree assault and remands
    for a new trial solely as to that charge. In all other respects, the
    judgment is affirmed.
    The dissent would affirm the judgment in its entirety because
    the lawyer made a knowing and intentional waiver of any error in
    the court’s self-defense instruction.
    COLORADO COURT OF APPEALS                                        2019COA16
    Court of Appeals No. 14CA1958
    Weld County District Court Nos. 13CR875, 13CR890, 13CR1222 & 13CR1681
    Honorable Timothy G. Kerns, Judge
    The People of the State of Colorado,
    Plaintiff-Appellee,
    v.
    Joe Anthony Ramirez,
    Defendant-Appellant.
    JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
    AND CASE REMANDED WITH DIRECTIONS
    Division III
    Opinion by JUDGE TERRY
    Martinez*, J., concurs
    Webb, J., dissents
    Announced February 7, 2019
    Philip J. Weiser, Attorney General, Majid Yazdi, Assistant Attorney General,
    Denver, Colorado, for Plaintiff-Appellee
    Megan A. Ring, Colorado State Public Defender, Dayna Vise, Deputy State
    Public Defender, Denver, Colorado, for Defendant-Appellant
    *Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
    VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
    ¶1    This case has been remanded from the supreme court. People
    v. Ramirez, (Colo. No. 18SC281, Dec. 3, 2018) (unpublished order).
    That court has instructed us to reconsider the prior division’s
    opinion in this case, People v. Ramirez (Colo. App. No. 14CA1958,
    Mar. 8, 2018) (not published pursuant to C.A.R. 35(e)) (Ramirez I),
    in light of the decision in People v. Rediger, 
    2018 CO 32
    .
    ¶2    Defendant, Joe Anthony Ramirez, was convicted in one trial of
    charges stemming from four consolidated criminal cases. He was
    found guilty of attempted first degree murder, attempted reckless
    manslaughter, first degree assault with a deadly weapon, engaging
    in a riot, illegal discharge of a firearm, theft by receiving, vehicular
    eluding, and possession with intent to distribute a schedule II
    controlled substance. The court imposed a combination of
    consecutive and concurrent sentences totaling eighty-eight years.
    ¶3    In Ramirez I, the division affirmed his conviction of all charges.
    After receiving the supreme court’s order of remand, we requested
    supplemental briefing from the parties as to the application of
    Rediger. That supreme court decision has potential effect only on
    our disposition of the conviction for first degree assault. Thus,
    1
    none of the other convictions entered against Ramirez are affected
    by the supreme court’s remand.
    ¶4    With respect to the first degree assault conviction, we now
    conclude that defense counsel’s error in declining to object to an
    inapplicable jury instruction amounted to a forfeiture, as described
    in Rediger, ¶¶ 39-47, and not a waiver, as described in the prior
    division’s opinion. Because we conclude that the error amounted to
    prejudicial plain error, we reverse the conviction of first degree
    assault and remand for a new trial solely as to that charge.
    I. The Erroneous Instruction
    ¶5    Ramirez argues that the trial court improperly instructed the
    jury as to “deadly physical force” in Instruction Number 29, which
    related to the charges of first degree assault, second degree assault,
    and third degree assault. (The jury found him guilty only of first
    degree assault.)
    ¶6    The prior division concluded that Ramirez had waived his
    contention of instructional error and therefore declined to consider
    it. In accordance with the supreme court’s remand, we now
    re-examine that ruling.
    2
    ¶7    During the jury instruction conference, defense counsel said
    that a scintilla of evidence was presented at trial that would support
    the defense of self-defense. The following colloquy then occurred:
    [Prosecutor]: I know that the standard [of
    proof] is incredibly low of it being a scintilla of
    evidence, and so I don’t think the People can in
    good faith dispute that there’s contradictory
    testimony including the defendant’s
    statements. . . .
    [COURT]: Counsel, any objection to the
    self-defense instruction [that was tendered by
    the prosecution] and its applicability to . . .
    first, second and third degree assault?
    [PROSECUTOR]: No, Your Honor.
    [COURT]: [Defense counsel?]
    [DEFENSE COUNSEL]: Your Honor, I believe
    this to be a correct statement of the law, so I
    don’t have any objection.
    [COURT]: Thank you.
    ¶8    The court instructed the jury:
    It is an affirmative defense to the crime of
    Assault in the First Degree . . . that the
    defendant used deadly physical force upon [the
    victim]:
    l. In order to defend himself or a third person
    from what he reasonably believed to be the use
    or imminent use of unlawful physical force by
    the other person,
    3
    2. He used a degree of force which he
    reasonably believed to be necessary for that
    purpose, and
    3. He reasonably believed a lesser degree of
    force was inadequate, and
    4. Had reasonable grounds to believe, and did
    believe that he or another person was in
    imminent danger of being killed or of receiving
    great bodily injury.
    (Emphasis added.)
    ¶9     Further, the elemental instruction for first degree assault
    referenced the “deadly physical force” instruction by saying,
    “without the affirmative defense [specified] in instruction number
    29.” The jury was not instructed on the definition of “deadly
    physical force.”
    ¶ 10   “‘Deadly physical force’ means force, the intended, natural,
    and probable consequence of which is to produce death, and which
    does, in fact, produce death.” § 18-1-901(3)(d), C.R.S. 2018
    (emphasis added); see also People v. Ferguson, 
    43 P.3d 705
    , 708
    (Colo. App. 2001) (“If the force used by the defendant does not
    cause death, by definition it cannot be deadly physical force.”); CJI-
    Crim. 5:01, 5(9) (1983) (incorporating statutory definition of “deadly
    physical force”); CJI-Crim. 7:17 (1983) (self-defense instruction
    4
    concerning deadly physical force “should only be used if the victim
    dies”).
    ¶ 11    Without question, it was error for the court to instruct the jury
    on deadly physical force because defendant was not accused of
    causing death. By giving an inapplicable instruction, and
    incorporating it into the elemental instruction for first, second, and
    third degree assault, the court would have caused the jury to have
    an incorrect understanding of the elements of those charges.
    II. Waiver or Forfeiture
    ¶ 12    In Ramirez I, the division concluded that Ramirez, through his
    counsel, had waived this instructional error. That conclusion
    focused on defense counsel’s statement, “I believe this to be a
    correct statement of the law, so I don’t have any objection.”
    Applying Rediger and the supreme court’s recent decision in People
    v. Smith, 
    2018 CO 33
    , we now conclude that this statement did not
    amount to waiver and was, instead, a forfeiture.
    ¶ 13    According to Rediger, “[w]aiver, in contrast to invited error, is
    “the intentional relinquishment of a known right or privilege.”
    Rediger, ¶ 39 (quoting Dep’t of Health v. Donahue, 
    690 P.2d 243
    ,
    247 (Colo. 1984)). Courts are not to “presume acquiescence in the
    5
    loss of fundamental constitutional rights, and therefore [must]
    indulge every reasonable presumption against waiver.” 
    Id. (quoting People
    v. Curtis, 
    681 P.2d 504
    , 514 (Colo. 1984)).
    ¶ 14   We see no indication in the record that defense counsel
    recognized the error in application of the deadly force jury
    instruction. There would be no rational, strategic reason for the
    defense to want such an erroneous instruction to be given. Indeed,
    counsel’s expression that he believed the instruction to be “a correct
    statement of the law” shows that he failed to notice that it was an
    incorrect statement of the law as applied to the first, second, and
    third degree assault charges in this case. Cf. People v. Stewart, 
    55 P.3d 107
    , 119 (Colo. 2002) (stating that a nontactical instructional
    omission is reviewable for plain error).
    ¶ 15   And as we have discussed, the error would have caused the
    jury to misunderstand the elemental jury instruction for first degree
    assault, which referenced the “affirmative defense [specified in
    erroneously phrased] instruction number 29.”
    ¶ 16   Given that we are to indulge every reasonable presumption
    against waiver, we conclude that counsel did not waive the
    instructional error. See id.; see also Smith, ¶ 18 (finding no waiver
    6
    of instructional error where “the record before us reveals no
    evidence that [the defendant], by stating that the instructions
    generally were ‘acceptable’ to him, intended to relinquish a known
    variance claim”).
    ¶ 17   “Forfeiture” is “the failure to make the timely assertion of a
    right.” Rediger, ¶ 40. Rediger cited United States v. Carrasco-
    Salazar, 
    494 F.3d 1270
    , 1272 (10th Cir. 2007), for the proposition
    that “waiver is accomplished by intent, [but] forfeiture comes about
    through neglect.”
    ¶ 18   Defense counsel’s failure to perceive and address the error in
    the instruction was patently attributable to neglect, and we
    therefore conclude that the instructional error was not waived, but
    merely forfeited. See Rediger, ¶ 44 (“In these circumstances, we
    conclude that neglect, not intent, explains Rediger’s lack of an
    objection . . . . Accordingly, in our view, Rediger’s acquiescence
    amounts to a forfeiture, not a waiver.”).
    ¶ 19   In contrast with the dissent, we are not convinced that Rediger
    is distinguishable on the basis that defense counsel there stated
    that the instructions as a group were acceptable, whereas defense
    counsel here accepted a specific instruction. By accepting all the
    7
    instructions, defense counsel in Rediger had accepted the included
    elemental instruction. Nevertheless, our supreme court said, “[t]he
    record before us reveals no evidence, either express or implied, that
    Rediger intended to relinquish his right to be tried in conformity
    with the charges . . . .” 
    Id. at ¶
    42.
    ¶ 20   People v. Kessler, 
    2018 COA 60
    , does not change our view.
    There, the division acknowledged Rediger, but distinguished it
    because, in Kessler, “defense counsel did more than generally
    acquiesce or fail to object. Defense counsel explicitly agreed that
    the specific evidence at issue was admissible.” 
    Id. at ¶
    37. The
    circumstances of Kessler are unlike those here, where Ramirez’s
    counsel showed no understanding that the jury instruction was
    inapplicable. And as the division acknowledged in Kessler, that
    case did not involve an elemental jury instruction. 
    Id. But this
    case does.
    ¶ 21   The division in People v. Tee, 
    2018 COA 84
    , ¶ 23, also
    distinguished Rediger, explaining that “the record before us shows
    that the trial court and defense counsel were involved in an
    ongoing, interactive exchange.” See also People v. Murray, 2018
    
    8 COA 102
    , ¶ 44 (“Defense counsel therefore clearly affirmatively
    acquiesced in the admissibility of the Montana judgment.”).
    ¶ 22   There is no such indication in the record here. Instead, the
    entire jury instruction conference — which dealt with thirty-seven
    jury instructions for charges that were originally brought in four
    separate cases — takes up only five pages of the trial transcript.
    Defense counsel’s statement that he thought the instruction
    correctly stated the law was made in one brief sentence.
    ¶ 23   The record shows defense counsel’s apparent lack of
    awareness of the error that was baked into the instruction. Cf.
    People v. Allgier, 
    2018 COA 122
    , ¶¶ 4-28 (holding that defense
    counsel did not waive for appellate review a CRE 403 argument
    regarding the admission of certain exhibits even though defense
    counsel said “no objection” when the prosecution moved to
    introduce them because the “record [did] not foreclose the
    possibility that defense counsel overlooked the possible
    prejudice . . . .”). Under these circumstances, we cannot conclude
    that counsel intentionally relinquished a known right on
    defendant’s behalf.
    9
    ¶ 24   Instead, counsel’s conduct amounted to a forfeiture, and, as a
    result, we must proceed to review the error for plain error. Rediger,
    ¶ 44; Smith, ¶¶ 18, 22.
    III. Plain Error Review
    ¶ 25   We conclude that the court committed plain error, and that we
    must reverse his first degree assault conviction as a result.
    ¶ 26   Plain error is obvious and substantial error that so
    undermined the fundamental fairness of the trial itself as to cast
    serious doubt on the reliability of the judgment of conviction.
    Hagos v. People, 
    2012 CO 63
    , ¶ 14.
    ¶ 27   The error in the instruction was indeed obvious. Giving the
    deadly force instruction where the alleged victim did not die
    contravened the applicable statute, § 18-1-901(3)(d); case law,
    
    Ferguson, 43 P.3d at 708
    ; and pattern jury instruction, CJI-Crim.
    5:01, 5(9) (1983); CJI-Crim. 7:17 (1983).
    ¶ 28   The error was also unfairly prejudicial. As in Ferguson, the
    failure to instruct on the non-deadly, ordinary use of force
    “permitted [the jury] to hold [the] defendant to a higher standard in
    establishing self-defense than is required by 
    law.” 43 P.3d at 708
    ;
    see also People v. Vasquez, 
    148 P.3d 326
    , 330 (Colo. App. 2006) (“In
    10
    restricting the jury’s consideration to only the most stringent
    conditions under which a claim of self-defense could be established,
    the trial court committed prejudicial error.”).
    ¶ 29   As a result, we must reverse defendant’s conviction of first
    degree assault.
    IV. Incorporation of Ramirez I as to Other Issues
    ¶ 30   The resolution of this appeal on all other issues discussed in
    Ramirez I is unaffected by the supreme court’s remand order. As a
    result, that opinion stands as to those other issues, and we
    incorporate herein those parts of Ramirez I addressing the other
    issues.
    V. Conclusion
    ¶ 31   The judgment of conviction of first degree assault is reversed,
    and the case is remanded for a new trial as to that charge. In all
    other respects, the judgment is affirmed.
    JUSTICE MARTINEZ concurs.
    JUDGE WEBB dissents.
    11
    JUDGE WEBB, dissenting.
    ¶ 32   In law, as in life, “[o]n the question you ask depends the
    answer you get.” Bay Ridge Operating Co. v. Aaron, 
    334 U.S. 446
    ,
    484 (1948) (Frankfurter, J., dissenting).
    ¶ 33   Following the mandate to consider People v. Rediger, 
    2018 CO 32
    , the majority asks whether defense counsel thought about the
    deadly physical force language in the self-defense instruction before
    endorsing that instruction. The majority then sees “no indication in
    the record that defense counsel recognized the error in application
    of the deadly force jury instruction,” supra ¶ 14, and on that basis
    “cannot conclude that counsel intentionally relinquished a known
    right on defendant’s behalf,” supra ¶ 23. But Rediger does not, in
    my view, mandate a subjective inquiry into whether counsel
    thought about the reason why an instruction might be flawed, so
    long as the record shows that counsel specifically agreed that the
    particular instruction challenged on appeal should have been given.
    ¶ 34   So, I ask whether defense counsel knowingly and intentionally
    assented to the self-defense instruction being given. After the trial
    court asked the lawyers if they wanted to make a “record regarding
    the self-defense instructions or self-defense issues,” defense counsel
    12
    said of the self-defense instruction, “Your Honor, I believe this to be
    a correct statement of the law, so I don’t have any objection.”
    (Emphasis added.) Because this statement — far from a mere rote
    response — constitutes a knowing and intentional waiver of any
    error in giving the self-defense instruction, I would affirm.
    ¶ 35   Therefore, and with respect, I dissent.
    I. Instructional Error
    ¶ 36   According to the majority, under cases such as People v.
    Ferguson, 
    43 P.3d 705
    , 708 (Colo. App. 2001), reversal is required
    because the trial court incorrectly instructed the jury on the use of
    deadly force — which requires that the force produce death — and
    in doing so held the prosecution to a lower standard for disproving
    self-defense than if the jury had been instructed on ordinary force.
    Because of defense counsel’s waiver, I do not address error, plain or
    otherwise, in the instruction. See People v. Bryant, 
    2013 COA 28
    ,
    ¶ 13 n.2 (“[A] ‘waived’ claim of error presents nothing for an
    appellate court to review.” (quoting People v. Rodriguez, 
    209 P.3d 1151
    , 1160 (Colo. App. 2008))).
    13
    II. Waiver After Rediger and Smith
    ¶ 37   In Rediger, ¶¶ 3, 10, our supreme court held that a
    defendant’s attorney had not waived a challenge to an elemental
    instruction by responding, “Yes. Defense is satisfied,” when the
    trial court asked whether counsel was “satisfied with the
    instructions,” all of which the prosecutor had prepared. The court
    reasoned that such “mere acquiescence” to the instructions as a
    group was not enough to show “an intentional relinquishment of a
    known right.” 
    Id. at ¶
    ¶ 3, 39-44. Similarly, in People v. Smith,
    
    2018 CO 33
    , ¶¶ 17-21, announced concurrently with Rediger, the
    supreme court concluded that waiver did not apply when defense
    counsel said of the proposed jury instructions, “[t]hey are
    acceptable, Judge.” 
    Id. at ¶
    6.
    ¶ 38   Thus, Rediger and Smith differ from this case in two important
    ways.
    ¶ 39   First, in both cases, the trial court did not solicit defense
    counsel’s position on the specific instruction belatedly challenged
    on appeal. See United States v. Hamilton, 
    499 F.3d 734
    , 736 (7th
    Cir. 2007) (The court declined to find a waiver because “while the
    judge invited objections he didn’t ask the defendant’s lawyer
    14
    whether the lawyer agreed to the instructions to which he did not
    object, or ask the lawyer specifically about the intent instruction.”).
    In contrast, here the court specifically asked, “Counsel, any
    objection to the self-defense instruction and its applicability to both
    first, second and third degree assault?” See People v.
    Perez-Rodriguez, 
    2017 COA 77
    , ¶ 28 (“Assuming that the statement
    ‘no objection’ was the response to an inquiry about specific
    language or a specific instruction, the circumstances might support
    deliberate conduct.”).
    ¶ 40   Second, in both cases, defense counsel gave a generic —
    “satisfied” and “acceptable” — response, equally applicable to all of
    the tendered instructions. This response could well have been
    merely a “rote statement that [counsel] is not objecting . . . .”
    United States v. Zubia-Torres, 
    550 F.3d 1202
    , 1207 (10th Cir. 2008)
    (cited with approval in Rediger, ¶ 45). Yet here, defense counsel
    gave an instruction-specific response: “I believe this [instruction] to
    be a correct statement of the law.” See United States v. Soto, 
    799 F.3d 68
    , 96 (1st Cir. 2015) (The court found the instructional
    contention was waived where “the district court informed the Sotos
    exactly how it was planning to instruct the jury on good faith and
    15
    condonation — instructions Carmen and Steven had explicitly
    requested — and sought their feedback, twice asking if they were
    okay with those specific instructions.”).
    ¶ 41   By any reckoning, the records in both cases created reasoned
    doubt whether defense counsel had specifically assented to the
    particular instructions challenged on appeal. Not so here.
    III. Application
    ¶ 42   Because questions of waiver “are necessarily fact-specific,”
    People v. Harlan, 
    54 P.3d 871
    , 879 (Colo. 2002), some variability
    exists among different divisions’ treatment of Rediger, see People in
    Interest of A.V., 
    2018 COA 138M
    , ¶ 13 (collecting cases).
    ¶ 43   In People v. Kessler, 
    2018 COA 60
    , ¶ 37, the division
    distinguished Rediger because “defense counsel did more than
    generally acquiesce or fail to object. Defense counsel explicitly
    agreed that the specific evidence at issue was admissible.” The
    division in People v. Tee, 
    2018 COA 84
    , ¶ 23, also distinguished
    Rediger because “the record before us shows that the trial court and
    defense counsel were involved in an ongoing, interactive exchange.”
    See also People v. Murray, 201
    8 COA 102
    , ¶ 44 (While citing
    Rediger, the division held that “[d]efense counsel therefore clearly
    16
    affirmatively acquiesced in the admissibility of the Montana
    judgment.”).
    ¶ 44   Because Tee differs from Kessler and Murray, these cases
    warrant a closer look. In Tee, the trial court, the prosecutor, and
    defense counsel had specifically discussed the predeliberation issue
    raised on appeal. But here, whether anyone said anything about
    the deadly physical force language before defense counsel endorsed
    the self-defense instruction is unknown.
    ¶ 45   Neither Kessler nor Murray describes any similar colloquy.
    Instead, when presented with the evidence, defense counsel
    responded that it was admissible. The divisions did not shy away
    from finding waivers by pondering whether counsel had considered
    the reasons raised on appeal as to why the evidence should not
    have been admitted. Rather, as here, defense counsel faced a
    binary choice: either object or acquiesce. And as here, because
    counsel chose the latter, giving the instruction cannot be
    challenged on appeal.
    ¶ 46   I discern no principled difference between admitting evidence
    and giving an instruction. In both circumstances, multiple reasons
    may be worth considering before counsel acts. Still, regardless of
    17
    what counsel subjectively contemplates, if counsel objectively
    acquiesces, the evidence comes in or the instruction is given. And
    asking whether counsel subjectively considered all such reasons
    disregards the principle that “[s]ociety has an interest in the finality
    of court determinations that should not be lightly put aside.”
    Stroup v. People, 
    656 P.2d 680
    , 684 (Colo. 1982).
    ¶ 47   Fine-tuning waiver remains problematic because neither
    Rediger nor Smith cited, much less distinguished, Stackhouse v.
    People, 
    2015 CO 48
    , ¶¶ 16-17 (“Defendants in Colorado
    affirmatively waive their right to public trial by not objecting to
    known closures,” although what counsel knew was not based on
    anything that the court and counsel had discussed, but on a
    “presum[ption] that attorneys know the applicable rules of
    procedure.”) (citation omitted). Even without regard to Stackhouse,
    however, the case before us is more like Kessler and Murray than it
    is like Rediger and Smith. While I am not bound by the decisions of
    other divisions, “we give such decisions considerable deference.”
    People v. Smoots, 
    2013 COA 152
    , ¶ 20, aff’d sub nom. Reyna-Abarca
    v. People, 
    2017 CO 15
    .
    18
    ¶ 48   After all, the trial court specifically asked defense counsel for
    his position on the self-defense instruction as well as on
    “self-defense issues.” In response, counsel did not just renounce
    “any objection,” as in Kessler and Murray. Counsel went further
    and explained his rationale — that the instruction was a “correct
    statement of the law.” Whether counsel was wrong is the province
    of an ineffective assistance claim under Crim. P. 35(c).
    ¶ 49   Despite all of this, is waiver precluded because what was on
    defense counsel’s mind when he unambiguously acquiesced is
    unknown? The majority says “yes” because waiver must be “the
    intentional relinquishment of a known right or privilege.” Rediger,
    ¶ 39 (quoting Dep’t of Health v. Donahue, 
    690 P.2d 243
    , 247 (Colo.
    1984)). For three reasons, I say “no.”
    ¶ 50   First, the knowing and intentional standard for a waiver by
    defense counsel differs from the “voluntary, knowing, and
    intelligent” test for waiver by a defendant. See, e.g., Sanchez v.
    People, 
    2014 CO 56
    , ¶ 11. Such a waiver “is intelligent if the
    defendant is ‘fully aware of what he is doing and . . . make[s] a
    conscious, informed choice to relinquish the known right.’” People
    v. Walker, 
    2014 CO 6
    , ¶ 16 (alteration in original) (citation omitted).
    19
    Had the Rediger court intended to condition waiver on plumbing the
    depths of defense counsel’s awareness, the court would have
    included “intelligent” in the formulation. Unsurprisingly, it did not.
    See Hinojos-Mendoza v. People, 
    169 P.3d 662
    , 670 (Colo. 2007)
    (“[W]e presume that attorneys know the applicable rules of
    procedure,” and we thus “can infer from the failure to comply with
    the procedural requirements that the attorney made a decision not
    to exercise the right at issue.”); see also Cropper v. People, 
    251 P.3d 434
    , 436-37 (Colo. 2011) (In Hinojos-Mendoza “we held that defense
    counsel’s failure to request live testimony from the technician was a
    valid waiver of the defendant’s confrontation right even though the
    attorney did not have actual knowledge of section 16-3-309(5)’s
    requirements.”) (emphasis added)).
    ¶ 51   Second, I look at knowledge. Because defense counsel argued
    to the trial court that the evidence met the low standard for giving a
    self-defense instruction, he knew that he was entitled to such an
    instruction. And because, after having successfully argued for a
    self-defense instruction, he acknowledged that the particular
    instruction proposed was a correct statement of the law, he also
    knew that he was entitled to a self-defense instruction that was
    20
    appropriate for the case being tried. See Black’s Law Dictionary
    1737 (9th ed. 2009) (defining “knowing” as “showing awareness or
    understanding”).
    ¶ 52   Third, I look at intent. Counsel could have objected to giving
    the instruction, asked for different language, or acquiesced in giving
    it. He unambiguously acquiesced. How much or how little thought
    counsel gave to possible flaws in the instruction does not defeat
    intentionality. See Black’s Law Dictionary 883 (defining
    “intentional” as “[d]one with the aim of carrying out the act”).
    ¶ 53   Despite defense counsel’s clear choice, the majority parses his
    acquiescence in giving the instruction as opposed to his
    acquiescence in the deadly force language. But appellate courts “do
    not require the defendant to expressly state on the record his intent
    to waive a challenge before we will consider it waived . . . and such
    an express statement is rare.” United States v. Garcia, 
    580 F.3d 528
    , 542 (7th Cir. 2009). I have not found any authority
    conditioning waiver on the outcome of an inquiry into whether
    defense counsel recognized every reason why an instruction might
    be inappropriate, at least where, as here, counsel affirmatively
    21
    endorses a particular instruction in response to a trial court’s
    specific question about counsel’s position on that instruction.
    ¶ 54   Closest to such an inquiry is a line of First Circuit cases
    summarized in United States v. Corbett, 
    870 F.3d 21
    , 30-31 (1st Cir.
    2017). The court explained that “when the ‘subject matter [is]
    unmistakably on the table, and the defense’s silence is reasonably
    understood only as signifying agreement that there was nothing
    objectionable,’ the issue is waived on appeal.” 
    Id. (citations omitted).
    ¶ 55   Applying this test here, defendant’s right to a self-defense
    instruction and the wording of that instruction were “on the table.”
    See 
    id. (citations omitted).
    Defense counsel persuaded the trial
    court to give such an instruction and then acquiesced in the
    language to be used. In my view, the inquiry should end there.
    ¶ 56   Going further to ponder whether defense counsel considered
    potential reasons why the instruction might be flawed demands too
    much. Suppose an instruction was flawed for two independent
    reasons, one of which was discussed among counsel and the trial
    court before defense counsel agreed that the instruction be given.
    Could appellate counsel avoid waiver by arguing that the other
    22
    reason warrants reversal and the record did not show that trial
    counsel had considered it?
    ¶ 57   Still, the majority points out that “[t]here would be no rational,
    strategic reason for the defense to want such an erroneous
    instruction to be given.” Supra ¶ 14. But this observation conflates
    waiver with invited error by assuming that inquiry into counsel’s
    strategic purpose plays the same role in ignoring an affirmative
    waiver that it does in declining to apply invited error. See Rediger,
    ¶ 34 (“Invited error is a narrow doctrine and applies to errors in
    trial strategy but not to errors that result from oversight.”). I am
    unaware of any Colorado authority tempering the effect of an
    affirmative waiver based on possible or even apparent lack of a
    strategic purpose.
    ¶ 58   Finally, everyone would agree that reversing a conviction and
    retrying the case carry “substantial social costs.” United States v.
    Mechanik, 
    475 U.S. 66
    , 72 (1986); see People v. Sepulveda, 
    65 P.3d 1002
    , 1008 (Colo. 2003). So, who better than the trial court to
    protect the verdict against the risk of reversal by affording defense
    counsel a fair opportunity to object? See Martinez v. People, 
    2015 CO 16
    , ¶ 14 (“An adequate objection allows the trial court a
    23
    meaningful chance to prevent or correct the error and creates a
    record for appellate review.”). But to do so, must the court ask
    defense counsel what he or she is thinking? Worse, must the court
    prime the pump by suggesting to counsel gray areas about which
    counsel should be thinking?
    ¶ 59   Here, the trial court sought to avoid those costs by broadly
    inviting defense counsel to address the instruction and related
    issues. With equal breadth, counsel replied, “I don’t have any
    objection.” Neither due process nor common sense could require
    greater effort by the trial court. Yet, if the integrity of a verdict
    depends not on what defense counsel says but on what counsel is
    thinking at the time, such efforts can always be thwarted by
    imaginative appellate counsel with the luxury of time to develop
    arguments that trial counsel may not have considered. If so, then
    in the end reversal leaves the trial court wondering, “what more
    could I have done?”
    IV. Conclusion
    ¶ 60   I would affirm the judgment.
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