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The State appealed the reversal of Respondent Jerad Pickering's conviction for reckless manslaughter. The court of appeals held that the trial court's self-defense jury instructions impermissibly shifted the burden of the State to prove beyond a reasonable doubt that Respondent acted recklessly. Upon review of the trial court record, the Supreme Court concluded that the trial court's instruction did not shift the State's burden, and accordingly reversed the court of appeals' judgment and overruled contrary rules announced in "People v. Lara" and "People v. Taylor."Receive FREE Daily Opinion Summaries by Email
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ADVANCE SHEET HEADNOTE
SEPTEMBER 12, 2011
No. 10SC446 -- People v. Pickering -- Criminal Law –- Jury
Instructions –- Self-defense.
The supreme court reverses the court of appeals‟ judgment
and holds that the trial court did not commit constitutional
error by instructing the jury, pursuant to section 18-1-704(4),
C.R.S. (2010), that the People did not bear the burden of
disproving that Pickering acted in self-defense when the court
properly instructed the jury on the elements of reckless
SUPREME COURT, STATE OF COLORADO
101 West Colfax Avenue, Suite 800
Denver, Colorado 80202
Case No. 10SC446
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 07CA2322
The People of the State of Colorado,
Jerad Allen Pickering.
September 12, 2011
John W. Suthers, Attorney General
John J. Fuerst, III, Senior Assistant Attorney General
Appellate Division, Criminal Justice Section
Attorneys for Petitioner
Douglas K. Wilson, Public Defender
Ryann S. Hardman, Deputy Public Defender
Attorneys for Respondent
JUSTICE RICE delivered the Opinion of the Court.
JUSTICE MARTINEZ dissents, and CHIEF JUSTICE BENDER and JUSTICE
HOBBS join in the dissent.
We review the court of appeals‟ decision in People v.
Pickering, No. 07CA2322 (Colo. App. Mar. 25, 2010) (not selected
for official publication), reversing respondent Jerad Allen
Pickering‟s conviction for reckless manslaughter.
The court of
appeals, relying on People v. Lara, 224 P.3d 388 (Colo. App.
2009), cert. denied, No. 09SC906 (Colo. Feb. 8, 2010) and People
v. Taylor, 230 P.3d 1227 (Colo. App. 2009), cert. denied, No.
10SC102 (Colo. May 24, 2010), held that the trial court‟s
self-defense jury instructions impermissibly shifted the burden
of the Petitioner, the People of the State of Colorado
(“People”), to prove beyond a reasonable doubt that Pickering
We conclude that the trial court‟s
instruction to the jury did not shift the People‟s burden, and
accordingly reverse the judgment of the court of appeals and
overrule the contrary rules announced in Lara and Taylor.
Facts and Procedural History
Pickering and his friend, Jesse Bates, went to the
apartment of another friend, Eugene Morgan, where Morgan and two
other men, Leon Villarreal and Jose Torres, were present.
argument ensued between Pickering, Bates, Morgan, and
Villarreal, leading to a fight during which Pickering allegedly
stabbed Villarreal to death.
The People charged Pickering with
second-degree murder under section 18-3-103(1), C.R.S. (2010).1
At trial, Pickering‟s counsel asserted that Pickering acted in
The trial court gave an elemental jury instruction on
second-degree murder, which required the People to prove beyond
a reasonable doubt that Pickering had knowingly caused
Villarreal‟s death and that Pickering did not act in
The trial court gave another elemental
instruction on the lesser-included charge of reckless
manslaughter, which required the People to prove beyond a
reasonable doubt that Pickering recklessly caused Villarreal‟s
The latter instruction made no mention of self-defense.
The trial court then gave a carrying instruction explaining the
interaction between self-defense and the knowing and reckless
requirements of the respective charges, and another instruction
The jury found Pickering guilty of reckless manslaughter
under section 18-3-104(1)(a), C.R.S. (2010), a lesser-included
charge of second-degree murder,2 and Pickering appealed to the
court of appeals.
The court of appeals reversed the conviction,
focusing on a portion of the carrying instruction that stated,
The People also charged Pickering with second-degree assault
with a deadly weapon under section 18-3-203(1)(b), C.R.S.
The jury also found Pickering guilty of second-degree assault.
pursuant to the language of section 18-1-704(4), C.R.S. (2010),
that “the [People] do not bear the burden of proving beyond a
reasonable doubt that [Pickering] did not act in self-defense
with respect to [the reckless manslaughter] charge.”
of appeals concluded that the instruction could have led the
jury to misunderstand the relationship between recklessness and
self-defense and find Pickering guilty of reckless manslaughter
even if it concluded that the People failed to prove that he did
not act in self-defense.
The People petitioned for, and we
granted, certiorari review of the court of appeals‟ decision.3
Under both the United States and Colorado Constitutions,
due process requires the trial court to properly instruct the
jury on every element of the substantive offense with which the
defendant is charged so the jury may determine whether all the
elements have been established beyond a reasonable doubt.
Griego v. People, 19 P.3d 1, 7 (Colo. 2001) (citing U.S. Const.
Specifically, we granted certiorari to consider:
Whether the court of appeals erred in reversing
respondent‟s conviction for reckless manslaughter
because the trial court instructed the jury pursuant
to section 18-1-704(4), C.R.S. (2010), that the
prosecution does not bear the burden of proving beyond
a reasonable doubt that the defendant did not act in
The court of appeals also remanded for resentencing and
reclassification of the second-degree assault conviction, an
issue not before us here.
art. III, § 2, cl. 3; U.S. Const. amend. VI; U.S. Const. amend.
XIV, § 1; Colo. Const. art. II, §§ 16, 23 and 25; Bogdanov v.
People, 941 P.2d 247, 252 (Colo. 1997); People v. Snyder, 874
P.2d 1076, 1080 (Colo. 1994)).
How a defense is conceptualized
in relation to the elements of a crime depends on the type of
Types of Defenses
There are, generally speaking, two types of defenses to
criminal charges: (1) “affirmative” defenses that admit the
defendant‟s commission of the elements of the charged act, but
seek to justify, excuse, or mitigate the commission of the act;
and (2) “traverses” that effectively refute the possibility that
the defendant committed the charged act by negating an element
of the act.
See People v. Huckleberry, 768 P.2d 1235, 1238
(Colo. 1989) (citations omitted); see also People v. Miller, 113
P.3d 743, 750 (Colo. 2005) (further explaining the distinction
between affirmative defenses and traverses).
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.
§ 18-1-407, C.R.S. (2010); Huckleberry, 768 P.2d at 1238
If, on the other hand, the presented
evidence raises the issue of an elemental traverse, the jury may
consider the evidence in determining whether the prosecution has
proven the element implicated by the traverse beyond a
reasonable doubt, but the defendant is not entitled to an
affirmative defense instruction.
See Huckleberry, 768 P.2d at
With respect to crimes requiring intent, knowledge, or
willfulness, such as second-degree murder, self-defense is an
n.5 (Colo. 2000).
See People v. Toler, 9 P.3d 341, 345-46
For example, it 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, and therefore not be guilty of second-degree murder.
Accordingly, if a defendant charged with such a crime raises
credible evidence that he acted in self-defense, or if the
prosecution presents evidence raising the issue of self-defense,
the prosecution bears the burden of proving beyond a reasonable
doubt that the defendant did not act in self-defense, and the
trial court must instruct the jury accordingly.
With respect to crimes requiring recklessness, criminal
negligence, or extreme indifference, such as reckless
manslaughter, self-defense is not an affirmative defense, but
rather an element-negating traverse.
See Case v. People, 774
P.2d 866, 869-71 (Colo. 1989); People v. Fink, 194 Colo. 516,
518-19, 574 P.2d 81, 83 (1978); People v. Fernandez, 883 P.2d
491, 493 (Colo. App. 1994) (citing Case, 774 P.2d 866; Fink, 194
Colo. 516, 574 P.2d 81).
Essentially, acts committed recklessly
or with extreme indifference or criminal negligence are “totally
inconsistent” with self-defense.
574 P.2d at 83.
See Fink, 194 Colo. at 518,
For example, it is impossible for a person to
act both recklessly and in self-defense, because self-defense
requires one to act justifiably, section 18-1-704(1), while
recklessness requires one to act with conscious disregard of an
unjustifiable risk, section 18-1-501(8), C.R.S. (2010).
Fink, this Court held that it was sufficient for trial courts
presiding over such charges simply to allow defendants to
present evidence of self-defense, properly instruct juries on
the definitions of recklessness or criminal negligence, and not
give any specific instructions on self-defense, all under the
assumption that juries would understand the relationship between
self-defense and the elemental requirements of recklessness,
criminal negligence, and extreme indifference.
518-19, 574 P.2d at 83.
See 194 Colo. at
The General Assembly addressed the issues raised in Fink by
enacting section 18-1-704(4).4
The first clause of section
18-1-704(4) codifies Fink in part, requiring trial courts, in
accordance with the United States Supreme Court‟s holding in
Martin v. Ohio, 480 U.S. 228, 233-34 (1987), to permit
defendants accused of crimes to which self-defense is not an
affirmative defense -- i.e., those involving recklessness,
extreme indifference, or criminal negligence -- to nevertheless
present evidence of self-defense.
The second and third clauses
abrogate Fink to a limited extent by requiring trial courts to
instruct the jury in such cases regarding the law of
self-defense and to explain to the jury that it may consider
evidence of self-defense in determining whether a defendant
The statute reads:
In a case in which the defendant is not entitled to a
affirmative defense, the court shall allow the
defendant to present evidence, when relevant, that he
or she was acting in self-defense. If the defendant
presents evidence of self-defense, the court shall
instruct the jury with a self-defense law instruction.
The court shall instruct the jury that it may consider
the evidence of self-defense in determining whether
indifference, or in a criminally negligent manner.
However, the self-defense law instruction shall not be
an affirmative defense instruction and the prosecuting
attorney shall not have the burden of disproving
self-defense. This section shall not apply to strict
acted recklessly or with extreme indifference or with criminal
Finally, the fourth clause, at issue here,
clarifies that the self-defense law instruction required in such
cases is not an affirmative defense instruction and that the
prosecution does not bear the burden of disproving self-defense.5
In Lara, a case involving a charge of first-degree murder
and a charge of extreme indifference murder, the trial court
instructed the jury, tracking the language of the fourth clause
of section 18-1-704(4), that the prosecution did not bear the
burden of disproving self-defense.
224 P.3d at 392, 394.
court of appeals held that, by proving extreme indifference, the
prosecution necessarily disproves self-defense because of the
mutually exclusive nature of extreme indifference and
The court of appeals then reasoned that
instructing the jury, pursuant to the fourth clause of section
18-1-704(4), that the prosecution did not bear the burden of
disproving self-defense might imply that the prosecution did not
bear the burden of proving extreme indifference, an essential
element of the charged crime.
See id. at 394-95.
the court of appeals concluded that the instruction
unconstitutionally shifted the prosecution‟s burden of proving
The statute‟s fifth clause regarding strict liability crimes is
not relevant here.
extreme indifference to the defendant.
Id. at 395.6
the court of appeals affirmed and extended Lara, concluding that
instructing the jury that the prosecution does not bear the
burden of disproving self-defense unconstitutionally shifts the
prosecution‟s burden to prove that a defendant acted recklessly
in crimes requiring recklessness as an element.
230 P.3d at
We find the reasoning of Lara and Taylor unpersuasive.
While it may be true that evidence of self-defense tends to
disprove recklessness, extreme indifference, and criminal
negligence, the prosecution‟s sole constitutional burden in
cases implicating self-defense and either recklessness, extreme
indifference, or criminal negligence is simply to prove
recklessness, extreme indifference, or criminal negligence along
with the other elements of the charged crime.
U.S. at 234.
See Martin, 480
Once the prosecution has made a prima facie case
proving all the elements of the charged crime beyond a
reasonable doubt, the prosecution need not do anything else to
convict the defendant.
The defendant, of course, may
introduce evidence of self-defense to raise reasonable doubt
about the prosecution‟s proof of the requisite element of
recklessness, extreme indifference, or criminal negligence, but
The court of appeals declined to address whether the statute
itself was unconstitutional. Id. at 394.
the prosecution bears no burden to disprove self-defense.
§ 18-1-704(4); Martin, 480 U.S. at 234.
Accordingly, instructing the jury, pursuant to the fourth
clause of section 18-1-704(4), that the prosecution bears no
burden of disproving self-defense with respect to crimes to
which self-defense is not an affirmative defense is an accurate
statement of Colorado law and does not improperly shift the
prosecution‟s burden to prove recklessness, extreme
indifference, or criminal negligence.
So long as the trial
court properly instructs the jury regarding the elements of the
charged crime, a carrying instruction using the language of
section 18-1-704(4) is not constitutionally erroneous.
overrule Lara and Taylor to the extent that they hold to the
Here, it is undisputed that the trial court‟s elemental
instruction properly set forth the elements of reckless
Thus, there was no constitutional error in the
trial court‟s carrying instruction stating that the People did
not bear the burden of disproving that Pickering acted in
Accordingly, we reverse the judgment of the court
The trial court‟s carrying instruction essentially tracked the
language of section 18-1-704(4). We note, however, as did the
court of appeals, that the trial court failed to explain to the
of appeals and reinstate Pickering‟s conviction for reckless
JUSTICE MARTINEZ dissents, and CHIEF JUSTICE BENDER and JUSTICE
HOBBS join in the dissent.
jury, pursuant to the third clause of section 18-1-704(4), that
it could consider evidence of self-defense in determining
whether Pickering acted recklessly. That issue is not within
our grant of certiorari and we therefore decline to address it.
JUSTICE MARTINEZ, dissenting.
Where a defendant is charged with reckless manslaughter,
the majority holds that a jury instruction stating that “the
prosecution bears no burden of disproving self-defense with
respect to which it is not an affirmative defense is an accurate
statement of Colorado law,” claiming such an instruction does
not improperly shift the burden of proof to the defendant.
the contrary, such a jury instruction does not accurately state
the law in this case, and does shift the burden of proof to the
Further, it is inconsistent with another jury
instruction stating that the prosecution has the burden to prove
every element of reckless manslaughter beyond a reasonable
doubt, and is therefore highly misleading; thus, it should not
The majority‟s holding assumes that when self-defense
evidence is not presented as an affirmative defense, such
evidence has only one constitutionally-relevant effect: it
“tends” to disprove the elements of the crime.
such evidence only “tends” to disprove the elements of the
crime, the prosecution must “simply” prove the elements of the
crime and “need not do anything else to convict the defendant.”
See maj. op. at 10.
Thus, if the jury is properly instructed
that the prosecution must prove all the elements of the crime,
and self-defense is not an affirmative defense that would create
an additional element, then there is no constitutional error to
also instruct the jury that the prosecution need not disprove
See maj. op. at 10-11.
To justify this approach, the majority relies heavily on
how the Supreme Court assessed self-defense jury instructions in
Martin v. Ohio, 480 U.S. 228 (1987), essentially equating the
circumstances in Martin with the circumstances here.
op. at 10-11.
But the majority‟s reliance on Martin is
misplaced, as it is critically distinguishable: in Martin, the
affirmative defense, once established, did not necessarily
negate any one of the elements of the crime.
That is not the
Unlike other element-negating defenses, evidence of
self-defense in this case does more than just “tend” to disprove
an element of the crime: it necessarily negates the element of
The constitutionality of the jury instruction at
issue therefore cannot be resolved by just equating it with any
other element-negating defense, as the majority implicitly
In Martin, the Court held that the state could permissibly
require the defendant to prove self-defense and that no due
process violation occurred by instructing the jury that the
defendant had the burden to prove self-defense by a
preponderance of the evidence.
480 U.S. at 233-36.
instruction passed constitutional muster in part because of
other instructions given to the jury.
The other instructions
provided that the prosecution had the burden -- never shifting
-- to prove every element of aggravated murder beyond a
reasonable doubt, and that to find the defendant guilty, none of
the evidence presented by either party could raise a reasonable
doubt as to any of the elements of aggravated murder.
Without compromising the due-process sanctity of these
other jury instructions, the Court acknowledged that evidence of
self-defense may “tend to negate” the element of aggravated
murder requiring the defendant to “purposely, and with prior
calculation” take another‟s life.1
Id. at 234.
But because the
jury was properly informed of the prosecution‟s burden regarding
the charged offense, the jury could fairly assess whether any of
the self-defense evidence raised “a reasonable doubt about the
sufficiency of the State‟s proof of the elements of the crime.”
The majority treats the element-negating defense here just
as the Court treated element-negating evidence of self-defense
The Court in Martin noted that evidence of self-defense could
negate the “purposeful killing by prior calculation” element of
aggravated murder because “[i]t may be that most encounters in
which self-defense is claimed arise suddenly and involve no
prior plan or specific purpose to take life. In those cases,
evidence offered to support the defense may negate a purposeful
killing by prior calculation and design . . . .” Id. at 234.
in Martin, ignoring the critical difference between the two.
Martin, even if the prosecution had proven its case beyond a
reasonable doubt, it would not have necessarily disproved any of
the elements of self-defense.
Indeed, the Court contemplated
this scenario, observing that even if the jury was convinced
beyond a reasonable doubt that the defendant committed
aggravated murder, “the killing will still be excused if the
elements of the defense are satisfactorily established.”
In short, for the Court, certain elements of self-defense and
aggravated murder would “often” overlap, but not always; no
necessary relationship existed between the prosecution proving
its case and disproving the defendant‟s self-defense evidence -evidence that could have the tendency to, but did not have to,
negate the elements of the charged offense.
In contrast, here, by proving reckless manslaughter, the
prosecution has to, as a matter of logical necessity, disprove
any evidence of self-defense raised by the defendant.
majority, before inexplicably retreating behind Martin, appears
to admit this.
See maj. op. at 7 (“[I]t is impossible for a
person to act both recklessly and in self-defense, because selfdefense requires one to act justifiably, while recklessness
requires one to act with conscious disregard of an unjustifiable
Our precedent certainly supports this.
We have noted that
criminal negligence requiring a jury finding that the defendant
“failed to perceive an unjustified risk that a reasonable person
would have perceived in the situation,” is “totally
inconsistent” with a theory of self-defense.
194 Colo. 516, 518, 574 P.2d 81, 83 (1978).
People v. Fink,
underscored our holding in Fink that a trial court need not give
any specific instructions to jurors on self-defense where
criminal negligence is charged: as a matter of logical
necessity, jurors would understand that if it found the
defendant acted recklessly, “they have already precluded any
finding of affirmative defense.”
Id. (quoting Notes on the Use
of the Colorado Jury Instructions (Criminal) § 9:7 (ManslaughterReckless)); see also Case v. People, 774 P.2d 866, 870 (Colo.
1989) (“By finding [the defendant] guilty of reckless
manslaughter, the jury has found that she consciously
disregarded a substantial and unjustifiable risk that [the
victim] would be killed.
The jury therefore rejected the
contention that [the defendant] was acting in self-defense.
the jury believed [the defendant‟s] testimony that she was
acting in self-defense, it would not have found her to have
acted recklessly.” (citations omitted)).
Once this necessary, inverse relationship between a defense
and the elements of the offense is established -- once the
prosecution must, by virtue of proving its own case, necessarily
disprove self-defense evidence raised by the defendant -- it has
In Patterson v. New York, the
Supreme Court held a statute that shifted to the defendant the
burden to prove the affirmative defense of extreme emotional
disturbance did not violate due process partly because the
elements of the charged offense were separate from the
affirmative defense: the affirmative defense “does not serve to
negative any facts of the crime which the State is to prove in
order to convict of murder.
It constitutes a separate issue on
which the defendant is required to carry the burden of
persuasion . . . .”
432 U.S. 197, 206-07 (1977).
implication arising from Patterson is obvious: where an
affirmative defense does negative the elements of the crime the
prosecution must prove, the prosecution must carry the burden to
disprove that defense.
And although the Court in Patterson
referred to affirmative defenses, under In re Winship‟s broad
mandate that the prosecution must prove beyond a reasonable
doubt “every fact necessary to constitute” the charged crime,
397 U.S. 358, 364 (1970), the same logic would apply to any
Justice Powell, placing Martin v. Ohio‟s holding in the
context of Patterson, explained the constitutional justification
for why the prosecution should have the burden to disprove a
defense that negates an element of the charged offense:
If the jury is told that the prosecution has the
burden of proving all the elements of a crime, but
then also is instructed that the defendant has the
burden of disproving one of those same elements, there
is a danger that the jurors will resolve the
inconsistency in a way that lessens the presumption of
For example, the jury might reasonably
believe that by raising the defense, the accused has
assumed the ultimate burden of proving that particular
Or, it might reconcile the instructions
simply by balancing the evidence that supports the
prosecutor‟s case against the evidence supporting the
affirmative defense, and conclude that the state has
satisfied its burden if the prosecution's version is
In either case, the jury is given
the unmistakable but erroneous impression that the
defendant shares the risk of nonpersuasion as to a
fact necessary for conviction.
Martin, 480 U.S. at 237-38 (Powell, J., dissenting).
Although Justice Powell disagreed with the majority over
whether the specific defense in Martin sufficiently negated an
element of the charged offense so as to invoke the implication
in Patterson, see id. at 239-40, neither he nor the Martin
majority undermined the implication in Patterson that the
prosecution must carry the burden to disprove any defense that
necessarily negates an element of the charged offense.2
great weight of federal authority supports this proposition.
See United States v. Leahy, 473 F.3d 401, 403 (1st Cir. 2007)
(“[W]e hold that where . . . proof of the justification defense
does not negate an element of the charged crime, the burden of
proof in connection with that defense rests with the
defendant.”); United States v. Leal-Cruz, 431 F.3d 667, 671 (9th
Cir. 2005) (“[W]e conclude that the Due Process Clause forbids
shifting the burden of proof to the defendant on an issue only
where establishing the defense would necessarily negate an
element that the prosecution must prove beyond a reasonable
doubt under Winship.”); United States v. Brown, 367 F.3d 549,
556 (6th Cir. 2004) (“[I]f an affirmative defense bears a
necessary relationship to an element of the charged offense, the
burden of proof does not shift to defendant.”); United States v.
Dodd, 225 F.3d 340, 344 (3d Cir. 2000) (“Although the Due
Process Clause requires the government to prove all elements of
the charged offense beyond a reasonable doubt, and therefore
requires the government to disprove beyond a reasonable doubt
any defenses that negate an element of the charged offense,
there is no constitutional bar to the defendant's bearing the
For a good discussion of how Patterson and other Supreme Court
precedent support this proposition, see United States v. LealCruz, 431 F.3d 667, 670-72 (9th Cir. 2005).
burden of persuasion on defenses that do not negate an element
of the offense.” (citations omitted)); United States v.
Deleveaux, 205 F.3d 1292, 1298 (11th Cir. 2000) (“The burden to
prove or disprove an element of the offense may not be shifted
to the defendant. Thus, if a defendant asserts a defense that
has the effect of negating any element of the offense, the
prosecution must disprove that defense beyond a reasonable
doubt.” (citations omitted)); United States v. Unser, 165 F.3d
755, 764 (10th Cir. 1999) (“[W]hen evidence has been produced of
a defense which, if accepted by the trier of fact, would negate
an element of the offense, the government must bear the ultimate
burden of persuasion on that element, including disproving the
defense.”); United States v. Johnson, 968 F.2d 208, 213-14 (2d
Cir. 1992) (“To be valid, an affirmative defense may not, in
operation, negate an element of the crime which the government
is required to prove; otherwise, there would be too great a risk
that a jury, by placing undue emphasis on the affirmative
defense, might presume that the government had already met its
burden of proof. Such a presumption would, without question,
violate due process.”); Wynn v. Mahoney, 600 F.2d 448, 450-51
(4th Cir. 1979) (finding constitutional error in instructing the
jury that the defendant had the burden to prove self-defense,
because the absence of self-defense was an element of murder
that had to be proved by the prosecution).
Based on this authority, it was constitutional error for
the trial court in this case to instruct the jury that the
prosecution had no burden to disprove evidence of self-defense.
As established above, self-defense evidence, once appropriately
raised -- as it was in this case3 -- necessarily negates the
element of recklessness; the prosecution cannot prove
recklessness without, in effect, disproving the self-defense
The trial court‟s contrary instruction thus violated
the constitutional requirements of Patterson and Winship.
Nor is the instruction saved by the trial court‟s general
instruction that the prosecution has the burden to prove all the
elements of reckless manslaughter.
“[T]he giving of
incompatible instructions on the burden of proof is fatal
Young v. Colo. Nat„l Bank of Denver, 148 Colo. 104,
125, 365 P.2d 701, 713 (1961); see also Barr v. Colo. Springs &
Interurban Ry. Co., 63 Colo. 556, 560, 168 P. 263, 265 (1917)
(“Conflicting or contradictory instructions furnish no correct
In line with section 18-1-704(4), C.R.S. (2010), the defendant
presented evidence of self-defense and was thus entitled to a
self-defense instruction. Of course, if the defendant had not
presented any evidence of self-defense, he would not have been
entitled to a self-defense instruction at all, and none of the
constitutional issues at issue in this case would have been
guide to the jury, and the giving thereof is erroneous . . . .”
And this is because “[a] reviewing court
has no way of knowing which of the two irreconcilable
instructions the jurors applied in reaching their verdict.”
Francis v. Franklin, 471 U.S. 307, 322 (1985).
While the jury
may have followed the general instruction and placed the burden
to disprove self-defense evidence on the prosecution, it is
entirely possible -- and more likely -- that the jury followed
the opposite and more specific instruction that the prosecution
did not have any burden to disprove the evidence of selfdefense.
In line with Justice Powell‟s reasoning, the jury
might have harmonized these conflicting instructions by
balancing the evidence supporting both sides and rendering its
verdict based on whichever side‟s evidence was simply more
persuasive, instead of holding the prosecution to its more
rigorous burden of proof.
This would be impermissible.
Jolly v. People, 742 P.2d 891, 898 (Colo. 1987) (“The critical
consideration in determining the validity of [a jury
instruction] is whether a reasonable jury could have understood
the instruction as relieving the state of its burden of
persuasion on an essential element of the crime.”).
jury instruction the majority claims is an accurate statement of
the law is, in fact, unconstitutional.
Although the majority holds that no reversible error occurs
where a jury is given an instruction tracking the language of
section 18-1-704(4), see maj. op. at 11, cautious trial court
judges should still decline to give such an instruction.
majority does not require that trial courts give this
instruction, and neither does the statute.
requires trial courts to: (1) allow defendants to present
evidence of self-defense; (2) give a “self-defense law
instruction” where evidence of self-defense is presented; and
(3) inform the jury that it may consider self-defense evidence
“in determining whether the defendant acted recklessly, with
extreme indifference, or in a criminally negligent manner.”
contrast, although the statute states the prosecution has no
burden to disprove self-defense, it does not require that juries
be so informed: “[T]he self-defense law instruction shall not be
an affirmative defense instruction and the prosecution attorney
shall not have the burden of disproving self-defense.”
Further, trial court judges should decline to give this
instruction because it is highly misleading.
Courts should not
give instructions if they embody “an incorrect or misleading
statement of the law.” People v. Bossert, 722 P.2d 998, 1009
Jury instructions should not be used if their
language creates “a reasonable possibility that the jury could
have been misled relative to reaching a verdict.”
Williams, 23 P.3d 1229, 1232 (Colo. App. 2000); see also People
v. DeHerrera, 697 P.2d 734, 740 (Colo. 1985)(concluding that the
“unduly confusing” jury instruction should not have been given).
By giving the jury instruction the majority declares
creates no reversible error, a “reasonable possibility”
certainly exists that a jury will be misled by instructions that
on one hand require the prosecution to prove every element of
reckless manslaughter beyond a reasonable doubt, but on the
other hand state that the prosecution has no burden to disprove
any self-defense evidence, even though logically, it is
impossible for the prosecution to prove reckless manslaughter
without in effect disproving such self-defense evidence.
Fink and Case, we observed that juries were capable of
recognizing the necessary, inverse relationship between selfdefense and recklessness or criminal negligence, there is no
reason to suppose that the jury here was not capable of
recognizing the same relationship.
And once recognized this
relationship renders the instructions inconsistent: one
instruction places the burden to prove recklessness on the
prosecution, but the other, by stating that the prosecution has
no burden to disprove evidence necessarily negating the element
of recklessness, has the effect of placing on the defendant the
burden to disprove he acted recklessly.
We do not know how
juries will resolve this inconsistency, and we -- and cautious
trial court judges -- should not hazard a guess.
Because the jury instruction in this case violates due
process and misleads juries on the critical issue of the
prosecution‟s burden to prove every element of the charged
offense beyond a reasonable doubt, it should not have been
I respectfully dissent.
I am authorized to state that CHIEF JUSTICE BENDER and
JUSTICE HOBBS join in this dissent.