Donaciano Esquibel v. J. Frank Rice, Dr. Gale A. Norton, Attorney General , 13 F.3d 1430 ( 1994 )

BRORBY, Circuit Judge,

dissenting.

I respectfully dissent.

Mr. Esquibel was convicted by a jury in Colorado state court of the crime of burglary. Colorado state law requires the jury to find the defendant, inter alia, unlawfully entered the dwelling of another. “Unlawful” entry is an essential element of the crime of burglary. However, the jury in Mr. Esquibel’s case was instructed simple entry was sufficient to support a guilty verdict. The element of unlawfulness was omitted from the list of elements of the crime.

The majority concludes the element of unlawfulness of the entry was not truly omitted from the list of essential elements given to the jury. It is only on this precise point I differ from the majority.

The majority classifies the instructions as ambiguous, while I would hold the instructions completely omitted an essential element of the crime. The jury was instructed it must find the element of entry in order to convict. Elsewhere in the instructions, the jury was correctly charged on the meaning of the phrase “unlawful entry.” I regard the definition as mere surplusage. “Unlawful” was not part of the list of elements; nowhere was the jury instructed it must find Mr. Esquibel’s entrance was unlawful in order to convict him. The majority concludes a reasonable juror would have understood “unlawful” was an essential party of the “entry” requirement. I would conclude to the contrary.

This case presents a unique factual scenario. Defense counsel wisely concluded the only hope of acquittal reposed in the possibility of convincing the jury a reasonable doubt existed concerning the identity of the burglar. To maintain credibility for Mr. Esqui-bel with the jury, defense counsel conceded all elements of the crime except identity. The evidence concerning unlawful entry was not only overwhelming, it was undisputed. Defense counsel’s only option was to do as counsel did. However, the defense counsel’s concessions are not relevant to our analysis until we have determined that the harmless error analysis is appropriate. I am concerned the majority is looking at the defendant’s obvious guilt prematurely. The facts of the case are not relevant in determining whether plain constitutional error exists.

I believe plain constitutional error did occur; therefore my next question is whether the harmless error analysis should be used. Applying the law of this Circuit, I would conclude the omission of an essential element from the jury charge precludes a harmless error analysis. Rael v. Sullivan, 918 F.2d 874, 875 (10th Cir.1990) (“a complete failure to instruct on an essential element of an offense violates the right to due process”), cert. denied, 499 U.S. 928, 111 S.Ct. 1328, 113 L.Ed.2d 260 (1991). Also, the Supreme Court in Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977), held the record must clearly indicate the jury made all requisite findings to convict. The question before this court is not whether Mr. Esquibel was guilty; nor is the question the sufficiency of the evidence. The sole question we should consider is whether it is clear from the record the jury made all required findings. I do not believe the record clearly shows the jury made all required findings.

I would find plain error exists and is not cured. I would order the State of Colorado to release Mr. Esquibel or give him a new trial.