v. Wakefield , 428 P.3d 639 ( 2018 )

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
March 22, 2018
2018COA37
No. 15CA0654, People v. Wakefield — Criminal Law — Jury
Instructions — Defenses — Defense of Person
A division of the court of appeals considers whether a trial
court must give a self-defense instruction where a defendant
testifies that a gun discharged accidentally, killing the victim, but
there is also evidence that the shooting was in self-defense. The
division concludes that the trial court must give the self-defense
instruction in that circumstance.
In so concluding, the division harmonizes potentially
conflicting case law from the Colorado Supreme Court in People v.
Naranjo, 2017 CO 87; Brown v. People, 239 P.3d 764 (Colo. 2010);
People v. Garcia, 826 P.2d 1259 (Colo. 1992); Idrogo v. People, 818
P.2d 752 (Colo. 1991); Vigil v. People, 143 Colo. 328, 353 P.2d 82
(1960); Huffman v. People, 96 Colo. 80, 39 P.2d 788 (1934); and
Jabich v. People, 58 Colo. 175, 143 P. 1092 (1914).
Article II, section 3 of the Colorado Constitution recognizes the
right of a person to act in self-defense, and under binding case law,
when a defendant presents at least a scintilla of evidence in support
of a self-defense instruction, the court must instruct the jury on
self-defense. Defendant’s claim of accident in the course of self-
defense was not so inconsistent as to deprive him of the right to
have the jury instructed on self-defense.
The division also concludes that statements made by
defendant to a private security guard and the police were
admissible under Miranda v. Arizona, 384 U.S. 436 (1966), but the
trial court was required to conduct a distinct due process analysis
of whether the statements to the police were voluntary. Finally,
photos of marijuana in defendant’s apartment should not have been
admitted at trial because they posed a danger of unfair prejudice
that outweighed their probative value.
The conviction is reversed, and the case is remanded for a new
trial.
COLORADO COURT OF APPEALS 2018COA37
Court of Appeals No. 15CA0654
City and County of Denver District Court No. 14CR1513
Honorable Edward D. Bronfin, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Timothy Wakefield,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE TERRY
Harris, J., concurs
Bernard, J., concurs in part and dissents in part
Announced March 22, 2018
Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Haddon, Morgan & Foreman, P.C., Norman R. Mueller, Rachel A. Bellis,
Denver, Colorado, for Defendant-Appellant
¶1 When there is evidence in a murder case indicating that the
defendant shot the victim either accidentally or in self-defense, is
the trial court required to grant his request for a self-defense
instruction? Under the facts of this case, we answer “yes” to this
question. In our analysis, we harmonize potentially conflicting case
law from our supreme court in People v. Naranjo, 2017 CO 87;
Brown v. People, 239 P.3d 764 (Colo. 2010); People v. Garcia, 826
P.2d 1259 (Colo. 1992); Idrogo v. People, 818 P.2d 752 (Colo. 1991);
Vigil v. People, 143 Colo. 328, 353 P.2d 82 (1960); Huffman v.
People, 96 Colo. 80, 39 P.2d 788 (1934); and Jabich v. People, 58
Colo. 175, 143 P. 1092 (1914).
¶2 Defendant, Timothy Wakefield, appeals his judgment of
conviction for second degree murder. We reverse and remand for a
new trial.
I. Background
¶3 Defendant was convicted based on an altercation during which
he was holding a gun that discharged, causing the victim’s death.
¶4 Defendant and the victim were longtime friends, and the
victim was visiting defendant from out of state. But in the hours
leading up to the shooting, the victim and defendant argued and
1
were involved in a series of increasingly violent physical fights,
during one of which defendant lost consciousness.
¶5 There was no dispute that defendant was holding a shotgun
when the victim was killed. Just after the shooting, defendant
indicated to two people that he had acted in self-defense. But
defendant testified at trial that when the victim stepped forward
and reached for the gun, defendant pulled the gun up and away
from the victim’s reach, and the gun “went off.” According to
defendant, he thought that the victim “was going to take the gun
and hurt [him] with it.” Defendant maintained that he did not
intend to shoot or hurt the victim.
¶6 Defendant was tried for first degree murder, but the jury
instead convicted him of the lesser included offense of second
degree murder.
II. Self-Defense Instruction
¶7 Defendant first argues that the trial court erred by declining to
give his tendered jury instruction on self-defense. Because we
agree, we reverse the conviction and remand for a new trial.
2
A. Legal Standards
¶8 We review de novo whether there is sufficient evidence to
support giving a defendant’s requested self-defense jury instruction.
People v. Newell, 2017 COA 27, ¶ 19. “When considering whether a
defendant is entitled to [a] requested instruction[], we consider the
evidence in the light most favorable to the defendant.” Cassels v.
People, 92 P.3d 951, 955 (Colo. 2004). The court’s rejection of a
defendant’s tendered jury instruction is reviewed for constitutional
harmless error. See Neder v. United States, 527 U.S. 1, 8-15 (1999);
Griego v. People, 19 P.3d 1, 8 (Colo. 2001).
¶9 Generally speaking, there are two types of defenses to a
criminal charge. People v. Pickering, 276 P.3d 553, 555 (Colo.
2011). First, there are affirmative defenses, which seek to justify,
excuse, or mitigate the commission of the act. Id. Second, there
are traverses, or element-negating defenses, which “effectively refute
the possibility that the defendant committed the charged act by
negating an element of the act.” Id.
¶ 10 Self-defense can be either an affirmative defense or an
element-negating defense depending on the grade of homicide
charged. When the charged offense requires intent, knowledge, or
3
willfulness, as second degree murder does, see § 18-3-103(1),
C.R.S. 2017, self-defense is an affirmative defense, Pickering, 276
P.3d at 555. “[I]t is possible for a person to knowingly cause the
death of another, thus satisfying the basic elements of second-
degree murder under section 18-3-103(1), but to nevertheless do so
in self-defense as defined under section 18-1-704, [C.R.S. 2017,]
and therefore not be guilty of second-degree murder.” Pickering,
276 P.3d at 556.
¶ 11 “In Colorado, if presented evidence raises the issue of an
affirmative defense, the affirmative defense effectively becomes an
additional element, and the trial court must instruct the jury that
the prosecution bears the burden of proving beyond a reasonable
doubt that the affirmative defense is inapplicable.” Id. at 555.
¶ 12 The supreme court has “consistently held that where the
record contains any evidence tending to establish the defense of
self-defense, the defendant is entitled to have the jury properly
instructed with respect to that defense.” Idrogo, 818 P.2d at 754;
see also People v. Saavedra-Rodriguez, 971 P.2d 223, 228 (Colo.
1998) (quantum of evidence necessary for giving affirmative defense
instruction is “a scintilla of evidence, or some evidence”). The
4
evidence to support such an instruction may come from any source,
and may even consist of “highly improbable testimony by the
defendant.” People v. Garcia, 28 P.3d 340, 347 (Colo. 2001); Newell,
¶¶ 21-22.
B. Discussion
1. Preservation
¶ 13 We start by rejecting the prosecution’s contention that this
issue is unpreserved and is therefore subject only to plain error
review. Defense counsel preserved the issue by tendering an
affirmative defense jury instruction for “deadly physical force in
defense of person” as to the first degree and second degree murder
charges. When tendering the self-defense instruction, counsel
argued that there was sufficient evidence to support such an
instruction, and that even if such evidence contradicted defendant’s
simultaneous claim that the shooting was accidental, he still had
the right to a self-defense instruction. The court rejected the
instruction, reasoning that defendant’s testimony that he did not
intend to pull the trigger was incompatible with the giving of an
affirmative defense instruction for self-defense. We conclude that
counsel’s tendering of the instruction was sufficient to preserve the
5
issue for appeal. See Newell, ¶ 19 (“Because defendant requested
the instruction, any error in failing to give the instruction requires
reversal unless the error did not affect defendant’s substantial
rights.”).
2. The Self-Defense Statute
¶ 14 Defendant was convicted of second degree murder, which is
defined as “knowingly caus[ing] the death of a person.”
§ 18-3-103(1). Self-defense is an affirmative defense to second
degree murder. Pickering, 276 P.3d at 555-56.
¶ 15 Colorado’s self-defense statute, section 18-1-704(1), provides:
[A] person is justified in using physical force
upon another person in order to defend
himself . . . from what he reasonably believes
to be the use or imminent use of unlawful
physical force by that other person, and he
may use a degree of force which he reasonably
believes to be necessary for that purpose.
The statute clarifies that “[d]eadly physical force may be used only if
a person reasonably believes a lesser degree of force is inadequate
and . . . [t]he actor has reasonable ground to believe, and does
believe, that he . . . is in imminent danger of being killed or of
receiving great bodily injury.” § 18-1-704(2)(a).
6
3. Evidence Supporting Self-Defense Instruction
¶ 16 Viewing the evidence in the light most favorable to defendant
for this purpose, see Cassels, 92 P.3d at 955, we conclude that
there was at least a scintilla of evidence presented that would
support a self-defense instruction, see Saavedra-Rodriguez, 971
P.2d at 228. That evidence included the following testimony of
defendant and others:
 Several hours before the shooting, the victim and
defendant were wrestling, and the victim put defendant
in a headlock, during which defendant could not breathe.
A witness said that defendant turned “red” while in the
headlock.
 Later that day, after an evening of drinking, the two got
into an altercation in defendant’s apartment during
which defendant accused the victim of stealing
defendant’s pants, containing about $1800 in cash. The
victim swung at defendant and dragged him into the
kitchen by his neck. With his arms around defendant’s
neck, the victim bent defendant over the stove.
Defendant fought back, but ultimately they landed on the
7
floor, with the victim’s hands still around defendant’s
neck, causing him to lose consciousness.
 Defendant later woke up in significant pain and ordered
the victim to leave. The victim threatened defendant that
he should “go back to sleep or I’ll put you to sleep.”
Another struggle ensued during which the two landed on
the living room television stand, breaking it.
 Defendant then retrieved his shotgun, at which time he
felt “scared” and “helpless” because his brother and his
dog were not around to protect him and help get the
victim out of his apartment. Defendant “wanted the gun
to stand between [the victim] and [himself to keep the
victim] from fighting and hurting [defendant] physically
any more.”
 Though the victim initially left when confronted with the
gun, he returned, pounding on the door and demanding
access to look for his cell phone. The victim pushed his
way back into the apartment, but left again when
defendant threatened to call the police.
8
 When defendant found the victim’s phone shortly
thereafter, defendant ran out of the apartment, gun in
hand, to return the phone to him. From ten feet away,
defendant tossed the victim the phone, and the victim
walked toward defendant.
 The victim then said, “Give me that gun. Fight me like a
man. Let’s fight like men.” The victim moved toward
defendant and reached for the gun. Defendant testified
that he thought the victim was “going to take the gun
and hurt me with it.” He also testified that he “didn’t
expect the gun to go off.” Defendant pulled back and the
gun discharged.
 A private security guard who arrived on the scene just
after the shooting testified that defendant told him that
he had been robbed and that “it was self-defense”
(apparently referencing defendant’s situation).
 A police detective testified that, after the shooting, the
detective handcuffed defendant, at which point defendant
said, “Is this normal for this kind of case[,] being
handcuffed for self-defense[?]”
9
4. Application of Self-Defense Law to the Facts
¶ 17 The trial court concluded that defendant’s testimony that he
had pulled the gun “up and away,” combined with the lack of
evidence that defendant intended to pull the trigger, negated the
availability of self-defense as a defense to the charges. According to
the court, this was not “a situation where the defendant has
admitted the commission of the elements of the charged act but
seeks to justify, excuse, or mitigate the commission of that act.”
The court relied on the 1992 Garcia case in rejecting the
instruction. In that case, the supreme court held that the
defendant could not claim that an intruder had stabbed the victim
“and at the same time obtain an instruction based on the theory
that [the defendant] stabbed [the victim] in the heat of passion.”
826 P.2d at 1263-64.
¶ 18 We conclude that the trial court erred in its ruling by not
following applicable supreme court precedents from Idrogo,
Saavedra-Rodriguez, Vigil, Huffman, and Jabich.
¶ 19 In Idrogo, the court held that if there is any evidence in the
record tending to establish self-defense, the court must instruct the
jury on that defense. 818 P.2d at 754; see also Saavedra-Rodriguez
10
971 P.2d at 228 (mere “scintilla of evidence, or some evidence”
supports giving a theory of defense instruction).
¶ 20 There was a sufficient legal basis and at least a scintilla of
evidence that would have allowed the jury to credit defendant’s
claim of self-defense. Given the previous fighting between the
victim and defendant, the latter could have rationally perceived that
he needed to be armed so that he could protect himself from the
victim. Defendant’s testimony indicated that the threat to him from
the victim was continuing. And his statements to the detective and
the security guard indicating that “it was self-defense” could have
prompted a properly instructed jury to acquit him based on a self-
defense theory. The fact that he also claimed an accidental
shooting was, under the circumstances he described, not so
inconsistent with self-defense as to deprive him of the right to have
the jury instructed on self-defense.
¶ 21 The trial evidence could have allowed the jury to rationally find
that defendant either shot the victim accidentally or that the gun
discharged as a result of his holding it in self-defense, and either
theory could have properly resulted in an acquittal.
11
¶ 22 We find support for this view in Vigil, 143 Colo. at 334, 353
P.2d at 85. There, the defendant claimed that a gun he was holding
to defend himself against the victim accidentally discharged and
killed the victim. The supreme court held that the trial court
should have granted his request for a self-defense instruction,
stating that “[t]he right of self-defense is a natural right and is
based on the natural law of self-preservation.” Id. The supreme
court observed that where a situation begins with an argument, but
escalates to the point where a person is “subjected to or threatened
with, such physical violence that he might have to resort to
justifiable homicide to protect his person,” he is not “deprive[d] . . .
of the right of self-defense.” Id.; see also Huffman, 96 Colo. at 83-
84, 39 P.2d at 789-90 (Where the defendant asserted “three kindred
theories of defense: Accident, self-defense, and a mental condition
resulting from the blows upon his head during the encounter” with
the shooting victim, it was reversible error for the court to decline to
instruct the jury on these theories.); Jabich, 58 Colo. at 179, 143 P.
at 1094 (The trial court should have instructed the jury on self-
defense where the defendant asserted that he may have accidentally
caused the victim’s death, ruling that, “[n]o matter how improbable
12
or unreasonable the contention, [the] defendant was entitled to an
appropriate instruction upon the hypothesis that it might be true.”).
¶ 23 In ruling that the self-defense instruction would not be given
here, the trial court said, “[T]he basis for my decision [not to give
the instruction] is [that defendant] affirmatively has testified that he
pulled the firearm up and away and the gun discharged.” The court
noted that the referenced testimony — combined with the lack of
evidence that defendant either intended to pull the trigger or
thought that it was necessary to pull the trigger to defend himself —
negated the availability of self-defense as a defense to the charges.
¶ 24 The trial court’s ruling did not give adequate deference to
defendant’s constitutional right to assert that he was acting in self-
defense, and to have the jury instructed accordingly. See Colo.
Const. art. II, § 3 (recognizing inalienable right of persons to defend
their lives); Idrogo, 818 P.2d at 754 (where any evidence tends to
establish defense of self-defense, court must instruct jury with
respect to that defense).
¶ 25 The holding of the 1992 Garcia case does not persuade us to
adopt the People’s theory that defendant is prevented by judicial
13
estoppel from asserting inconsistent theories of self-defense and
accident.
¶ 26 Most importantly, that case was not a self-defense case, and it
did not implicate the right of a person to defend his or her life that
is established by article II, section 3 of the Colorado Constitution.
¶ 27 And unlike in that case, the basis for the instruction here did
not depend on rejection of defendant’s version of events in sworn
testimony. Cf. 826 P.2d at 1263 (holding that the defendant could
not back away from a binding judicial admission and rely on “a
statement that he has, under oath, declared to be false in order to
obtain” the requested alternative instruction).
¶ 28 This case is more like Brown, 239 P.3d at 768-69, where the
defendant was charged with attempted first degree murder and
consistently maintained his innocence. Brown’s defense counsel,
who had not elicited any contrary testimony from the defendant,
requested an instruction on attempted second degree murder — a
lesser included offense that depended on a theory inconsistent with
the defendant’s claim of innocence. Id. at 768. The supreme court
concluded that the trial court erred by declining to give the
instruction. Id. at 769.
14
¶ 29 In so ruling, the supreme court distinguished the 1992 Garcia
case, saying that the holding in the earlier case turned “not on the
inconsistency of the requested instruction, but on the inconsistency
of the defendant’s sworn testimony.” Id. at 768. The supreme court
decided that under the circumstances of Brown’s case, the principal
policy arguments for denying the defendant his requested
instruction — namely, “that allowing an inconsistent instruction
would be contrary to ‘honesty and good faith’ and/or encourage
perjury” — were “substantially mitigated.” Id. at 768-69.
¶ 30 Here, the trial court viewed defendant’s assertions of both self-
defense and accident as inconsistent. But, as we will discuss, any
logical inconsistency between these concepts did not necessarily
involve perjury or reneging on a judicial admission, as in the 1992
Garcia case, and should not have been invoked to preclude
defendant’s right to assert self-defense.
¶ 31 Given the evidence admitted at defendant’s trial, the jury
could have found that he was holding the gun in self-defense but
that it discharged accidentally. Much of the evidence supporting
self-defense consisted of defendant’s own testimony, and some of it
was contradicted by other witnesses. But even “highly improbable
15
testimony by the defendant” may provide the scintilla of evidence
necessary to support a self-defense instruction. Garcia, 28 P.3d at
347.
¶ 32 The supreme court’s recent decision in Naranjo does not
change our analysis. In that case, a defendant who was charged
with felony menacing for pointing a gun at a fellow driver contended
that the jury should have received a lesser nonincluded offense
instruction for the crime of disorderly conduct. Naranjo, ¶ 1.
Applying the logic of the 1992 Garcia case, 826 P.2d 1259, the court
rejected that assertion. Naranjo, ¶ 28. It reasoned that the jury
could not rationally acquit the defendant of menacing while
simultaneously convicting him of disorderly conduct, because
conviction of the latter would have required the handling of the gun
“in a manner calculated to alarm,” § 18-9-106(1)(f), C.R.S. 2017, a
scenario that was contradicted by the defendant’s testimony that he
was only carefully putting his gun in the glove box. Naranjo, ¶ 27.
The jury in that case could only convict the defendant of the lesser
offense if it disbelieved his own contrary testimony, a situation
disapproved by the court in the 1992 Garcia case. Naranjo, ¶ 28
(citing Garcia, 826 P.2d at 1263); see also People v. York, 897 P.2d
16
 848, 850 (Colo. App. 1994) (concluding that where the defendant
testified he was not present when the victim was stabbed, he was
precluded from requesting jury instructions on heat of passion,
defense of self, and defense of others).
¶ 33 Unlike Naranjo, this case does not involve the propriety of
instructing a jury on a lesser nonincluded offense. Rather, it
implicates defendant’s constitutional right to an accurate
instruction on his theory of defense, and his entitlement to have the
jury determine the truth of that theory. See People v. Tardif, 2017
COA 136, ¶ 34.
¶ 34 A lesser nonincluded offense instruction must be given only if
a “rational evidentiary basis exists to simultaneously acquit [a
defendant] of the charged offense and convict him of the lesser
offense,” Naranjo, ¶ 15 (emphasis added). The far more significant
right of a defendant to a self-defense instruction, on the other hand,
is demonstrated by the low bar set for when it must be given: a
mere scintilla of evidence. See Saavedra-Rodriguez, 971 P.2d at
228; see also Garcia, 28 P.3d at 347 (scintilla of evidence may
consist “of highly improbable testimony by the defendant”).
17
¶ 35 Also unlike in the 1992 Garcia case and Naranjo case, the
availability of the requested instruction here did not depend for its
validity on rejection of defendant’s version of events in his own
sworn testimony. See Naranjo, ¶¶ 27-28; Garcia, 826 P.2d at 1263.
Vigil indicates that a person can both hold a firearm in self-defense
and still kill a victim accidentally, and that in such circumstances,
the jury must be instructed on self-defense. See 143 Colo. at 334,
353 P.2d at 85.
¶ 36 Where, as here, a defendant claiming both accident and self-
defense has presented at least a scintilla of evidence supporting
self-defense, the defendant is entitled to such an instruction. There
was at least some evidence indicating that defendant acted in self-
defense, even though he maintains that the actual firing of the
weapon was unintentional.
¶ 37 Requiring a defendant to concede intent so that he may obtain
a self-defense instruction would relieve the prosecution of its
burden of proving all of the elements of the crime, thus depriving
the defendant of his constitutional right to a trial by jury. See
Tardif, ¶ 34. Such a scenario would ensnare any defendant
claiming an accidental shooting in the course of self-defense in a
18
catch-22. He would either have to admit to pulling the trigger and
seek a self-defense instruction, or abandon his right to assert self-
defense, even though there was some evidence suggesting that his
actions, including a possible accidental discharge of the gun, were
in the course of self-defense.
¶ 38 A division of this court has recognized the need to instruct the
jury on self-defense where a defendant has asserted a “hybrid”
defense incorporating both accident and self-defense. In People v.
Lee, 30 P.3d 686, 690 (Colo. App. 2000), the defendant conceded
“that the revised instruction adequately included the substance of
his self-defense theory . . . , but assert[ed] that it failed to include
his theory that the shooting was accidental.” The division
concluded that, “[b]ecause the evidence presented support[ed] each
theory to some extent, the trial court had an affirmative duty to
instruct the jury on both aspects of the defense.” Id. The division
nevertheless determined that the trial court did not err because the
instructions that were given there “adequately informed the jury
that, to support a conviction for second degree murder, defendant’s
conduct causing the death of the victim could not have been
unintended or accidental.” Id.
19
¶ 39 Here, we face the opposite problem, because the trial court
refused to instruct the jury on self-defense. It should have so
instructed the jury.
¶ 40 This case is similar to People v. Brooks, 474 N.E.2d 1287 (Ill.
App. Ct. 1985), where the defendant testified that his shooting of
the victim was accidental. Because the evidence there would have
also supported a finding that the defendant was acting in self-
defense when the gun was fired, the appellate court held that the
trial court was required to instruct the jury on self-defense. See id.
at 1290 (“The fact that the defendant may have denied any
intention to commit the act is . . . irrelevant. And the courts have
indicated that it is perfectly proper to charge the jury with
inconsistent defenses so long as the facts and nature of the case
support the feasibility of either.”) (citations omitted); see also State
v. Miller, 739 A.2d 1264, 1266 (Conn. App. Ct. 1999) (“[W]e reject
the state’s argument that the defendant must admit that he
intended to kill the victim to assert the justification of self-
defense. . . . ‘[T]o compel a defendant to admit guilt in order to
invoke a defense effectively relieves the prosecution of proving his
guilt beyond a reasonable doubt and frustrates the assertion of the
20
defense itself and undermines its policy.’” (quoting State v. Folson,
525 A.2d 126, 130 (Conn. App. Ct. 1987))); State v. Wooten, 498
S.W.2d 562, 563 (Mo. 1973) (where the defendant’s evidence
indicated that a gun went off while he and the deceased struggled
for possession of it, the defendant was entitled to have the jury
instructed on both self-defense and accidental homicide); State v.
McCaskill, 387 S.E.2d 268, 269 (S.C. 1990) (“Where a defendant
claims that he armed himself in self-defense, while also claiming
that the actual shooting was accidental, this combination of events
can ‘place the shooting in the context of self-defense.’”) (citation
omitted).
¶ 41 Defendant’s request for a self-defense instruction had to be
honored because the evidence at trial would have allowed the jury
to find either (1) that defendant killed the victim accidentally or (2)
that there was an “imminent danger of [defendant] being killed or of
receiving great bodily injury,” § 18-1-704(1), (2)(a), that might have
justified his acting in self-defense.
¶ 42 We recognize that the framework of the affirmative defense of
self-defense is not wholly compatible with defendant’s claim that
the shotgun discharged unintentionally. This is because an
21
affirmative defense “admit[s] the defendant’s commission of the
elements of the charged act, but seek[s] to justify, excuse, or
mitigate the commission of the act,” People v. McClelland, 2015 COA
1, ¶ 17. So by requesting a self-defense instruction, a defendant
ordinarily would concede that he “knowingly cause[d] the death of a
person,” § 18-3-103(1), but would seek to justify it because he acted
in self-defense. “[T]he affirmative defense effectively becomes an
additional element, and the trial court must instruct the jury that
the prosecution bears the burden of proving beyond a reasonable
doubt that the affirmative defense is inapplicable.” Pickering, 276
P.3d at 555.
¶ 43 While the jury would necessarily have to first find that
defendant “knowingly” caused the victim’s death in order to then
look to the self-defense instruction to excuse defendant’s actions,
see McClelland, ¶ 17, this would not preclude defendant from also
asserting a somewhat inconsistent theory of defense based on the
unintentional discharge of the gun. Cf. People v. Opana, 2017 CO
56, ¶¶ 10, 14 (concluding that the term “deadly physical force,”
which is defined as “force, the intended, natural, and probable
consequence of which is to produce death, and which does, in fact,
22
produce death,” § 18-1-901(3)(d), C.R.S. 2017, as used in the self-
defense statute, does not require the user of that force to have a
subjective intent; instead “intended” conveys the notion of an
objective likelihood that such a result will occur).
¶ 44 We conclude that the error in not giving the self-defense
instruction warrants reversal of the conviction. See Idrogo, 818
P.2d at 756 (“A trial court’s failure to properly instruct a jury on the
applicable law of self-defense deprives the defendant of the right to
an acquittal on the ground of self-defense if the jury could have had
a reasonable doubt as to whether the defendant acted in necessary
self-defense.”); Newell, ¶ 20 (if there is any evidence in the record to
support a self-defense instruction, a court’s refusal to give one
deprives the accused of the constitutional right to trial by jury).
III. Issues that May Arise on Retrial
¶ 45 Because the following issues may arise on retrial, we address
them.
A. Defendant’s Statements While in Custody
¶ 46 Defendant argues that the trial court erred by declining to
suppress statements he made to both a private security guard and
the police following his apprehension. He contends that the
23
statements were either involuntary or admitted in contravention of
Miranda v. Arizona, 384 U.S. 436 (1966). While we conclude that
the statements complied with Miranda, because the court did not
make distinct findings as to whether the statements were
involuntary, on retrial, the trial court must hold an evidentiary
hearing to make such findings.
1. Miranda
¶ 47 Miranda protects a suspect’s right against self-incrimination
by prohibiting the introduction of statements procured by custodial
interrogation, unless the police have first given an advisement of
the suspect’s rights. 384 U.S. at 444; People v. Matheny, 46 P.3d
453, 462 (Colo. 2002). Miranda’s safeguards apply to a statement
only if (1) the suspect was in custody at the time the statement was
made, People v. Begay, 2014 CO 41, ¶ 13; and (2) the statement
was the product of an interrogation, People v. Madrid, 179 P.3d
1010, 1014 (Colo. 2008). The parties do not dispute that defendant
was in custody and had not yet been advised of his Miranda rights
when he made the contested statements.
¶ 48 A statement is in response to interrogation if the suspect was
“subjected to either express questioning or its functional
24
equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980).
Therefore, interrogation includes “any words or actions on the part
of the police . . . that the police should know are reasonably likely to
elicit an incriminating response.” Id. at 301. We evaluate the
totality of the circumstances in determining whether an
interrogation occurred, focusing on
whether the officer reasonably should have
known that the officer’s words or actions
would cause the suspect to perceive that he or
she was being interrogated, whether those
words or actions were calculated to elicit
incriminating statements, and whether in light
of the interrogation environment the police
compelled the incriminating statements.
People v. Bonilla-Barraza, 209 P.3d 1090, 1094 (Colo. 2009).
However, Miranda does not prohibit the use of a suspect’s
“volunteered, non-compelled statements.” People v. Gonzales, 987
P.2d 239, 241 (Colo. 1999); see also People v. Wood, 135 P.3d 744,
752 (Colo. 2006) (“A defendant’s spontaneous utterances will not be
excluded where there is no interrogation.”).
¶ 49 Whether a custodial interrogation occurred is a mixed
question of law and fact. People v. Barraza, 2013 CO 20, ¶ 15.
While we defer to the trial court’s findings of historical fact and will
25
not overturn them if they are supported by the record, “we review de
novo the legal question whether those facts, taken together,
establish that custodial interrogation occurred.” Id.
¶ 50 Our review of the statements that defendant made while in
custody leads us to conclude that the trial court did not err in
declining to suppress the statements under Miranda because they
were (1) made to a private security guard and not subject to
Miranda; (2) based on Miranda’s public safety exception; or (3)
volunteered and therefore not the product on an interrogation.
a. Statements to Private Security Guard
¶ 51 Immediately after the shooting, defendant was apprehended by
a private security guard, who held defendant at gunpoint, ordered
him to lie prone on the ground, and called 911. The guard testified
that defendant then made numerous statements. Defendant asked
about the safety and well-being of his dog, said that he had been
robbed, and said that there was a person whom he had shot and
that he had tried to help that person. He also said that he had
acted in self-defense. During the 911 call, the guard relayed the
address of the incident and defendant’s last name to the operator.
26
After the operator requested defendant’s date of birth, the guard got
that information from defendant and relayed it to the operator.
¶ 52 Miranda generally does not “apply to evidence obtained by
private parties or evidence resulting from the conduct of private
parties,” unless the private party was acting as an “agent[] of the
police by virtue of their suggestion, order, request, or participation
for purposes of criminal investigation,” as indicated by a totality of
the circumstances. People v. Lopez, 946 P.2d 478, 481-82 (Colo.
App. 1997). As defendant concedes, the security guard was
privately employed and did not work for the police. Therefore, the
security guard was a private party, and in general, any statements
that defendant made to him were not subject to Miranda’s
restrictions. See id.
¶ 53 We conclude that the totality of the circumstances indicates
that the security guard was not acting as an agent of the police “for
purposes of criminal investigation.” Id. The security guard was
responding to an immediate public safety issue at the apartment
complex, and even when relaying information to the 911 operator,
he was not acting in furtherance of a criminal investigation, but
was instead helping coordinate a response to an emergency
27
situation and ensuring that defendant did not leave the scene. See
People v. Chastain, 733 P.2d 1206, 1214 (Colo. 1987) (Where a
hospital security guard apprehended and interrogated the
defendants, there was no Miranda violation because the guard
“received no compensation or remuneration from any public agency,
nor did [the guard] act at the direction of the [police]. The fact that
[the guard] contacted police officers after he apprehended the
[defendants] is not sufficient to make him an agent of the police
department.”).
¶ 54 We conclude that admission of defendant’s statements to the
security guard is not precluded by Miranda.
b. Statements to Police Officers
¶ 55 The court admitted the following statements made by
defendant to police officers after his arrest:
 After an officer handcuffed him, defendant asked
questions about his dog and commented that the victim
had been “fucking with my dog.”
 When asked if he was injured, defendant said “no,” but
later said that he had been “hit in the face.”
28
 An officer repeatedly asked defendant if there was anyone
else in the residence, a question that defendant initially
ignored. Eventually, after the officer cursed at defendant,
he answered the question, saying that he believed
somebody else was in the house but he did not know the
person. The officer testified that he asked this question
due to his concern that there could have been other
victims or suspects in the vicinity.
 Defendant mentioned to the officer that he had a “large
dog.”
 Following a protective sweep of the residence, the officers
placed defendant in a patrol car, at which point
defendant refused to answer questions about his name
and date of birth, saying that he did not want to talk.
However, a few minutes later, defendant said, “I just need
somebody to talk to me.” The officer did not ask him any
more questions, but defendant asserted that an intruder
came into his residence, that defendant was “only trying
to defend himself,” and that defendant “tried to save” the
victim.
29
 During the booking process at the jail, defendant, in
response to being told to put his hands behind his back
for handcuffing, asked if it was “normal for this kind of
case . . . [to be] handcuffed for self-defense.”
¶ 56 We conclude that defendant’s comments to the officers either
were excluded from Miranda’s protections or were volunteered
statements that were not the product of interrogation.
¶ 57 The public safety “exception to the Miranda rule permits
custodial interrogation directed to obtaining information important
to protect the safety of officers engaged in immediate, on-scene
investigation of a crime.” People v. Requejo, 919 P.2d 874, 879
(Colo. App. 1996). Defendant’s answers to questions regarding the
extent of his injuries and whether there was anyone else in the
residence were not excluded by Miranda because the officers,
having just arrived on the scene, had a legitimate concern that
there could be other armed suspects or injured victims in the
vicinity. The officers were justified in trying to determine whether
defendant was severely injured or needed other medical attention.
See People v. Janis, 2016 COA 69, ¶ 54 (cert. granted on other
grounds Feb. 21, 2017).
30
¶ 58 The record supports the trial court’s finding that defendant’s
other statements were volunteered and therefore did not warrant
exclusion under Miranda as the product of interrogation. When
these statements were made, there were not “any words or actions
on the part of the police . . . that the police should [have known
would be] reasonably likely to elicit an incriminating response,”
Innis, 446 U.S. at 301, and therefore the use of such “volunteered,
non-compelled statements” was not prohibited by Miranda,
Gonzales, 987 P.2d at 241.
¶ 59 The record indicates that defendant’s repeated statements
about his dog were spontaneous, as were his comments in the
patrol car that he “just need[ed] somebody to talk to” him, “an
intruder was trying to come into [his] residence,” he “was only
trying to defend” himself, and he “tried to save him” (apparently
referencing the victim). When defendant made the statements in
the patrol car, the officer had not spoken to him in a few minutes,
and during the officer’s earlier questioning of defendant, he had
only asked questions about basic identifying information such as
defendant’s name and date of birth, which were not questions
intended to elicit incriminating information about the shooting.
31
¶ 60 Consequently, the trial court did not err in declining to
suppress defendant’s statements to the police based on Miranda.
2. Voluntariness
¶ 61 While the trial court conducted a full analysis of whether
defendant’s statements were admissible under Miranda, it did not
make the required, separate determination of whether his
statements to the police warranted suppression because of
defendant’s assertion that the statements were involuntary. On
remand, it must do this analysis.
¶ 62 Due process dictates that “a defendant’s statements must be
made voluntarily in order to be admissible into evidence,” Effland v.
People, 240 P.3d 868, 877 (Colo. 2010), meaning that the “evidence
[must be] independently and freely secured without officials
resorting to coercion,” People v. Zadran, 2013 CO 69M, ¶ 9.
Involuntary statements, whether inculpatory or exculpatory, are
inadmissible for any purpose. Effland, 240 P.3d at 877; People v.
Humphrey, 132 P.3d 352, 360 (Colo. 2006). Compliance with
Miranda alone is not determinative of whether a statement was
voluntarily given and therefore admissible. Humphrey, 132 P.3d at
360.
32
¶ 63 Coercive conduct is a predicate to a determination that a
defendant’s response is not voluntary, id., and in evaluating
whether a suspect’s statements were involuntary, the court should
consider the totality of the circumstances and weigh the varying
factors endorsed by the supreme court in People v. Medina, 25 P.3d
1216, 1222 (Colo. 2001).
¶ 64 It is critical that a trial court make findings regarding
voluntariness on the record, People v. Gennings, 808 P.2d 839, 844
(Colo. 1991), and “[w]here the trial court has failed to rule on the
[issue of] voluntariness,” the appellate court should remand for an
evidentiary hearing on the issue, Hunter v. People, 655 P.2d 374,
376 (Colo. 1982).
¶ 65 Even though the court found that certain statements were
“volunteered,” and therefore not the product of police interrogation
for Miranda purposes, it still was required to make separate
findings as to whether the statements were voluntary in accordance
with defendant’s due process rights. See Wood, 135 P.3d at 748
(“Statements may be suppressed when the defendant does not
make a statement voluntarily or when the statement is obtained in
33
violation of Miranda. Although these inquiries are similar, they are
distinct and independent grounds for suppression.”).
¶ 66 A due process voluntariness inquiry is distinct from an inquiry
into whether a defendant’s statement was volunteered under
Miranda. Whether a statement was volunteered for purposes of a
Miranda inquiry is closely related to the question of whether a
statement was the product of an interrogation because there were
“words or actions on the part of the police . . . that the police should
[have known were] reasonably likely to elicit an incriminating
response.” Innis, 446 U.S. at 300-01; see also Wood, 135 P.3d at
752 (“A defendant’s spontaneous utterances will not be excluded
[under Miranda] where there is no interrogation.”). A due process
voluntariness analysis instead focuses on whether a statement was
“the product of an essentially free and unconstrained choice by its
maker” and was thus free from coercion. Effland, 240 P.3d at 877
(quoting People v. Raffaelli, 647 P.2d 230, 234 (Colo. 1982)). “The
ultimate test of involuntariness is whether a defendant’s will has
been overborne.” Wood, 135 P.3d at 748.
¶ 67 On remand, the trial court must conduct an evidentiary
hearing to determine whether defendant’s statements to police
34
officers were voluntary. “The prosecution must establish by a
preponderance of the evidence that the statements were made
voluntarily under the totality of the circumstances before those
statements may be admitted into evidence.” Humphrey, 132 P.3d at
360; see also Medina, 25 P.3d at 1222. If they were not voluntary,
they may not be admitted at trial.
¶ 68 But his statements to the security guard do not need to be
reexamined, because they were made to a private party. Even “[t]he
most outrageous behavior by a private party seeking to secure
evidence against a defendant does not make that evidence
inadmissible under the Due Process Clause.” Colorado v. Connelly,
479 U.S. 157, 166 (1986). As a result, “coercive police activity is a
necessary predicate to the finding that a confession is not
‘voluntary’ within the meaning of the Due Process Clause.” Id. at
167. Because the security guard was acting as a private person,
the Due Process Clause did not apply to his behavior.
B. Photos of Marijuana
¶ 69 Defendant argues that the trial court erred by admitting
photographs showing a large amount of marijuana in his
35
apartment. We conclude that the court erred in admitting the
photos, and that they should not be admitted on retrial.
1. Legal Standards
¶ 70 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002). A
court abuses its discretion when its ruling is (1) based on an
erroneous understanding or application of the law or (2) manifestly
arbitrary, unreasonable, or unfair. People v. Esparza-Treto, 282
P.3d 471, 480 (Colo. App. 2011).
¶ 71 Subject to certain exclusions, evidence is admissible if it is
relevant, meaning that the evidence has “any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable.” CRE 401; see CRE 402.
¶ 72 Even if relevant, though, evidence is subject to exclusion
under CRE 403 if its probative value is substantially outweighed by
the danger of unfair prejudice. See Yusem v. People, 210 P.3d 458,
464-65 (Colo. 2009). When reviewing evidence under CRE 403, we
must assign the evidence its maximum probative value and
minimum unfair prejudice. People v. Nuanez, 973 P.2d 1260, 1263
(Colo. 1999).
36
2. Discussion
¶ 73 The court admitted the photos over defendant’s objection. One
photo showed several growing plants. The other showed a
significant amount of what appear to be drying marijuana leaves.
The court reasoned that the photos were relevant to defendant’s
credibility in reporting that he had been acting in self-defense
because he had been robbed.
¶ 74 We reject the People’s contention that the photos were
admissible as res gestae evidence. Res gestae evidence is evidence
that is “linked in time and circumstances with the charged crime, or
forms an integral and natural part of an account of the crime, or is
necessary to complete the story of the crime for the jury.” People v.
Quintana, 882 P.2d 1366, 1373 (Colo. 1994) (quoting United States
v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985)). There was no
indication that the marijuana played any part in the events leading
up to the shooting, and the photos therefore were not admissible as
res gestae evidence.
¶ 75 We conclude that any arguably probative value the photos
might have had was substantially outweighed by the danger of
unfair prejudice from showing a large amount of marijuana, and
37
that they were subject to exclusion under CRE 403. The photos
leave the impression that defendant may have been conducting a
grow operation in the apartment, and they could have caused the
jury to view him unfavorably.
¶ 76 Defendant never asserted that the victim had stolen any
marijuana; instead he claimed that the victim had taken his pants,
which he claimed had contained $1800 in cash. Contrary to the
People’s argument, the fact that some items of value were not stolen
has no tendency to prove whether other valuable items might have
been stolen.
¶ 77 Because the potential for unfair prejudice substantially
outweighed the probative value of this evidence, it should have been
excluded under CRE 403. On retrial, these photos should not be
admitted into evidence.
IV. An Issue Unlikely to Arise on Retrial
¶ 78 Defendant finally contends that the trial court committed plain
error by failing to administer an oath or affirmation to the court
interpreters as required by CRE 604. We decline to address this
contention because it is unlikely to arise on retrial.
38
V. Conclusion
¶ 79 The judgment of conviction is reversed, and the case is
remanded for a new trial. On remand, as discussed in Part III.A,
the court must conduct an evidentiary hearing on the voluntariness
and ultimate admissibility of defendant’s statements to the police
officers, and, as discussed in Part III.B, photos depicting marijuana
should be excluded from evidence.
JUDGE HARRIS concurs.
JUDGE BERNARD concurs in part and dissents in part.
39
JUDGE BERNARD, concurring in part and dissenting in part.
I. Introduction
¶ 80 I respectfully dissent from the majority’s conclusion in Part II
that the trial court erred when it declined defendant’s self-defense
instruction.
¶ 81 I agree with the majority’s analysis in Part III.A that, although
the statements defendant attacks on appeal satisfied the
requirements of Miranda v. Arizona, 384 U.S. 436, 444 (1966), the
trial court did not make adequate findings about whether the
statements to the police officers were voluntary. So I would vacate
defendant’s conviction and remand the case to the trial court to
determine whether those statements were voluntary. If the court
were to then decide that they were voluntary, it would reinstate
defendant’s conviction for second degree murder. If the court were
to decide that they were not, it would have to order a new trial.
¶ 82 I also agree that, on remand, the trial court should not
evaluate whether defendant’s statements to the private security
guard were voluntary. As the majority points out, the security
guard was acting as a private person, so the Due Process Clause
did not apply to his behavior.
40
¶ 83 I likewise concur with the majority’s conclusion in Part III.B
that the trial court should not have admitted the photographs of the
marijuana grow operation. But I conclude that this evidence was
harmless because the evidence in this case was overwhelming. So
there was not a “reasonable probability that the error contributed to
. . . defendant’s conviction.” Salcedo v. People, 999 P.2d 833, 841
(Colo. 2000) (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo.
1986)).
¶ 84 Last, I conclude that defendant waived his contention that the
trial court erred when it did not swear in two interpreters. See
United States v. Perez, 651 F.2d 268, 273 (5th Cir. 1981).
¶ 85 As a result of these various conclusions, I would, as indicated
above, vacate defendant’s conviction and remand the case so that
the trial court could determine whether defendant’s statements to
the police officers were voluntary. I would otherwise affirm.
II. Defendant Was Not Entitled to a Self-Defense Instruction
¶ 86 Defendant testified at trial that the shooting was an accident.
But he made a different claim immediately after the shooting.
According to the testimony of the private security guard who
apprehended him right after the shooting, defendant said that “he
41
was being robbed and it was self-defense.” And, when a police
officer handcuffed him at police headquarters to transport him to
jail, he asked, “Is this normal for this kind of case being handcuffed
for self-defense[?]” In other words, he did not claim that the
shooting was an accident shortly afterward; he said it was self-
defense.
¶ 87 Defendant did not contest the accuracy of the security guard’s
and the police officer’s testimony. In fact, trial counsel relied on it
when he asked the court to instruct the jury about self-defense:
I believe the jury could easily find and logically
conclude that while [defendant] is now making
a claim that his actions were an accident . . .
his statements at the time that he acted in
self-defense were the real reason that he fired
the gun at [the victim] because he was acting
in self-defense. . . . And when the jury is free
to disregard whatever evidence they want and
give credence to whatever they want, yes, there
is a set of circumstances under which they
could find that [defendant’s] conduct
constituted self-defense.
(Emphasis added.)
¶ 88 Trial counsel’s request recognized that defendant’s trial
testimony and his statements to the two witnesses immediately
after the shooting were inconsistent. The jury would have to (1)
42
“disregard” his trial testimony; and (2) “give credence” to “a set of
circumstances,” which was the statements that he made
immediately after the shooting; to (3) find that he had acted in self-
defense.
¶ 89 But defendant’s contention is different on appeal: he asserts
that, although he “armed himself in self-defense,” “the actual
shooting was accidental.” In other words, he now submits that he
had two intersecting and consistent defenses: accident and self-
defense. But, as I have shown above, that was not his position at
trial. Rather, based on his testimony, the testimony of the two
witnesses to whom he spoke after the shooting, and trial counsel’s
statements about why the court should give a self-defense
instruction, defendant provided inconsistent statements about one
event: why the shotgun fired.
¶ 90 The difference between defendant’s trial and appellate
contentions has two effects, one minor and one major.
¶ 91 The minor effect has to do with the standard of review.
Defendant’s appellate contention was not preserved because a
“request was made in the trial court on grounds different from [the
one] raised on appeal.” People v. Gee, 2015 COA 151, ¶ 45. So I
43
would review any error that the trial court may have made when
rejecting defendant’s request for a self-defense instruction to see if
it was plain. See, e.g., Hagos v. People, 2012 CO 63, ¶ 14. But this
effect matters little because I conclude that the court did not err at
all.
¶ 92 The major effect has to do with the way in which defendant
has recharacterized his position at trial. If the defenses were
consistent, defendant might not be boxed in by People v. Garcia,
826 P.2d 1259, 1263 (Colo. 1992). But I think that defendant made
it clear at trial that the defenses were inconsistent, so Garcia
controls this case.
¶ 93 In Garcia, the defendant testified at trial that one of his
statements to the police had been a lie. Id. In this statement, he
admitted that he had stabbed the victim, although he claimed to
have been very upset. Id. at 1261. This statement was the only
evidence in the record that might have supported a heat-of-passion
manslaughter instruction. Id. at 1262-63.
¶ 94 The defendant also testified at trial that he had not stabbed
the victim; an intruder had. Id. at 1262. So his theory of defense
44
at trial was that he had not engaged in the conduct that had led to
the victim’s death.
¶ 95 The supreme court decided that the defendant’s trial
testimony that he had not stabbed the victim was a “binding
judicial admission.” Id. at 1263. As is pertinent to this discussion,
a judicial admission is a “formal, deliberate declaration which a
party or his attorney makes in a judicial proceeding for the purpose
of dispensing with proof of formal matters or of facts about which
there is no real dispute.” Kempter v. Hurd, 713 P.2d 1274, 1279
(Colo. 1986). Judicial admissions bind the party that makes them.
Id.
¶ 96 After citing these principles from Kempter, Garcia discussed
how, in cases like this one, a defendant’s trial testimony may
become a binding judicial admission.
[W]hen a party testifies to facts in regard to
which he has special knowledge, such as his
own motives, purposes, or knowledge or his
reasons for acting as he did, the possibility
that he may be honestly mistaken disappears.
His testimony must be either true or
deliberately false. To allow him to contradict
his own testimony under these circumstances
would not be “consistent with honesty and
good faith.” Whether his statements be true or
false, he will be bound by them, and possible
45
contradictions by other witnesses become
immaterial. He will not be allowed to obtain a
judgment based on a finding that he has
perjured himself.
Garcia, 826 P.2d at 1263 (quoting Harlow v. Laclair, 136 A. 128,
130 (N.H. 1927)); see also People v. York, 897 P.2d 848, 850 (Colo.
App. 1994) (“[A] defendant is not entitled to a theory-of-the-case
jury instruction when he or she testifies under oath and utters
binding judicial admissions which wholly contradict the tendered
theory of defense instruction.”); cf. People v. Naranjo, 2017 CO 87,
¶ 28.
¶ 97 In Garcia, the defendant’s binding admission during his
testimony had a significant effect. It led the supreme court to
conclude that he could not “claim that an intruder stabbed [the
victim] and at the same time obtain an instruction based on the
theory that he stabbed [the victim] in the heat of passion.” Garcia,
826 P.2d at 1263-64. The court reached this conclusion because
“there was no evidence apart from the videotaped statement [to the
police] to support a heat of passion manslaughter instruction.
Manslaughter was not even [the defendant’s] theory of defense.” Id.
at 1263.
46
¶ 98 I recognize that defendant did not, during his trial testimony,
expressly disavow the two statements that he made immediately
after the shooting. In fact, he did not mention them. So, unlike the
defendant in Garcia, he did not expressly declare under oath that
his references to self-defense were false. See id.
¶ 99 But defendant disavowed the two statements just the same.
By testifying that the shooting was an accident, he rejected the
defense of self-defense, and he offered “his reasons for acting as he
did.” Id. at 1263. “His testimony [therefore] must [have been] either
true or deliberately false . . . [and] he will be bound by [it] . . . .” Id.
And trial counsel, when discussing his request for a self-defense
instruction, made clear that accident and self-defense were
inconsistent defenses. See Kempter, 713 P.2d at 1279. I therefore
conclude that defendant’s trial testimony and trial counsel’s
statements to the court about the self-defense instruction combined
to create a binding judicial admission.
¶ 100 Applying Garcia’s reasoning, in this case “there was no
evidence [describing why the shotgun fired] apart from” defendant’s
two statements immediately after the shooting “to support a [self-
defense] instruction.” Garcia, 826 P.2d at 1263.
47
¶ 101 And, as in Garcia, there was an inconsistency between
defendant’s binding judicial admission and the instruction for
which he asked. In Garcia, the defendant testified that someone
else committed the crime, but he wanted a heat-of-passion
manslaughter instruction. In this case, defendant testified that the
shooting was an accident, but he wanted a self-defense instruction.
¶ 102 Brown v. People, 239 P.3d 764, 768 (Colo. 2010), does not
compel a different conclusion. In that case, the defendant
“consistently maintained his innocence during the initial police
investigation and afterward at trial.” Id. The holding in Brown
pivoted on that consistency: “[W]e hold that a criminal defendant
who maintains his innocence may receive an inconsistent jury
instruction on voluntary intoxication provided there is a rational
basis for the instruction in the evidentiary record.” Id. at 770. In
other words, Brown held that the simple fact of maintaining
innocence does not preclude asking for an instruction that may
suggest guilt on a lesser offense.
¶ 103 But Brown did not involve a defendant’s inconsistent
statements, and this case does. Indeed, in Brown, “[t]he jury would
have considered inconsistent defenses, but [the defendant] would not
48
have necessarily testified untruthfully.” Id. at 769 n.3 (quoting
Mathews v. United States, 485 U.S. 58, 65 (1988)). In this case, by
testifying that the shooting was an accident, defendant took self-
defense off of the table. Garcia’s “rationale and thrust” was that “a
defendant cannot testify under oath to certain facts” — in this case,
accident — “that, by their nature, preclude any other defense” — in
this case, self-defense — “and then seek a jury instruction based on
contradictory evidence that would show his or her sworn testimony
to be false.” York, 897 P.2d at 850.
¶ 104 Last, I respectfully submit that Vigil v. People, 143 Colo. 328,
334, 353 P.2d 82, 85 (1960), and Jabich v. People, 58 Colo. 175,
178-81,143 P. 1092, 1093-94 (1914), are irrelevant to the analysis
in this case. Those decisions did not involve an inconsistency,
based on a defendant’s binding judicial admission, between what
the defendant said shortly after the crime and what he testified to at
trial. It is my view that this case is controlled by such an
inconsistency.
49