People v. Nunez

841 P.2d 261, 16 Brief Times Rptr. 1764, 1992 Colo. LEXIS 1027, 1992 WL 320808

• Court: Supreme Court of Colorado
• Decided: November 9, 1992
• Docket: 91SC576
• Status: Published

Opinions

Justice ERICKSON

delivered the Opinion of the Court.

The court of appeals in People v. Nunez, 824 P.2d 54 (Colo.App.1991), reversed the judgments of conviction and the sentences imposed on Marcus A. Nunez for aggravated robbery and crime of violence and ordered a new trial. The court of appeals concluded that a defendant is entitled to a properly worded instruction setting forth the defendant's theory of defense and that the trial court’s failure to cooperate with counsel in preparing a proper instruction constituted reversible error. We granted certiorari and now affirm.

I

On December 31, 1987, Ernest Reeve answered the door at his house and encountered a man, dressed as a United Parcel Service driver, who stated that his truck had broken down and asked to use the phone. After attempting to make a phone call, the man placed a gun to Ernest Reeve’s back and stated, “don’t give me any trouble.” The man threatened to kill Ernest Reeve and his wife, Dorothy, if they did not cooperate. After struggling with Ernest Reeve for approximately fifteen minutes, the assailant placed the couple in a basement room. Several minutes later, the couple escaped from the basement and discovered that the assailant had ransacked their home and fled.

In a search of the surrounding neighborhood, the police discovered a cardboard box containing a clipboard and an envelope addressed to Nunez. A fingerprint taken from the address sheet on the clipboard was positively identified as that of Nunez. The police also found a dresser drawer from the Reeve’s home containing a jewelry box. A fingerprint taken from the jewelry box was similar to that of Nunez, although a positive identification could not be made.

Nunez was arrested and charged with aggravated robbery,¹ and crime of violence (a predicate for mandatory sentence enhancement).² At trial, the Reeves testified that neither of them had a good look at the assailant during the robbery. Dorothy Reeve, however, testified that the assailant’s eyes and hair were similar to that of the defendant.

Nunez’s defense was based on an alibi. Nunez filed a notice of alibi pursuant to section 16-7-102, 8A C.R.S. (1986). At trial, Nunez testified that he did not commit the crime and that at the time of the offense he was attending a New Year’s Eve party. Four defense witnesses testified that they had seen Nunez at the party. Nunez also produced a telephone bill to show that he had placed a call to Minnesota shortly after the crime occurred.

Nunez tendered a jury instruction on alibi that provided:

Evidence has been introduced tending to establish an alibi which amounts to a contention that at the very time of the commission of the crime, Marcus Nunez was at another place under such circumstances that he could not, with ordinary exertion, have reached the place where the crime was committed.

If, after consideration of all the evidence in this case, you have a reasonable doubt whether the Defendant was present at the time and place the alleged offense was committed, you must acquit him.

The burden is upon the People to prove each and every element of the charge explained in the Instruction No. — beyond a reasonable doubt.

The trial court, without explanation, wrote “rejected” on the tendered instruction and refused to give the instruction.

On appeal, the court of appeals concluded that the trial court properly refused to give the tendered instruction. The court of appeals nonetheless reversed the judgments of conviction based on its determination that the trial court committed reversible error by not cooperating with defense counsel in preparing a proper instruction.

II

We granted certiorari to decide whether the court of appeals erred in reversing the judgments of conviction based on the trial court’s refusal to give a theory of the case instruction based on alibi, and if so, whether the error constitutes reversible error. We hold that the trial court’s failure to give a theory of the case instruction on alibi constitutes reversible error;

A

The prosecution argues that the trial court properly refused to give Nunez’s instruction based on an alibi theory of defense. The court of appeals agreed that the trial court correctly refused Nunez’s tendered instruction but reversed the judgments of conviction based on the failure of the trial court to prepare a proper instruction on Nunez’s alibi theory of defense.

In People v. Huckleberry, 768 P.2d 1235 (Colo.1989), we held that an alibi defense is not an affirmative defense and that the trial court properly denied an instruction based on section 18-1-407, 8B C.R.S. (1986),³ that suggested that alibi was an affirmative defense.⁴ We also noted that the trial court properly instructed the jury as to the prosecution’s burden of proving the elements of the offenses charged. Huckleberry, 768 P.2d at 1239.

In Huckleberry, however, we did not address whether the trial court erred in failing to provide a theory of the case instruction.⁵ Nor did we state that a defendant is not entitled to a theory of the case instruction based on an alibi defense. Instead, we held only that the defendant was not entitled to a separate affirmative defense instruction pursuant to section 18-1-407 based oh an alibi defense.

Because Nunez’s tendered instruction improperly suggested that alibi was an affirmative defense, we agree that the trial court properly refused to give the tendered instruction based on Huckleberry. However, the question of whether the trial court properly refused the instruction does not resolve the issue of whether the trial court erred in failing to provide a theory of the case instruction.

In Colorado, an instruction embodying a defendant’s theory of the case must be given by the trial court if the record contains any evidence to support the theory. People v. Fuller, 781 P.2d 647, 651 (Colo.1989) (emphasis added).⁶ The rationale underlying the general rule is the belief that it is for the jury and not the court to determine the truth of the defendant’s theory. Fuller, 781 P.2d at 651. As a result, a criminal defendant is entitled to an instruction embodying his theory of the case even if the only supporting evidence is highly improbable testimony by the defendant. Id.

In order to effectuate the general rule, we have further held that a trial court has an affirmative obligation to cooperate with counsel to either correct the tendered theory of the case instruction or to incorporate the substance of such in an instruction drafted by the court. People v. Parsons, 199 Colo. 421, 422, 610 P.2d 93, 94 (1980); Nora v. People, 176 Colo. 454, 456, 491 P.2d 62, 64 (1971); Zarate v. People, 163 Colo. 205, 211, 429 P.2d 309, 312-13 (1967).

Colorado’s approach to the necessity to instruct on a defendant’s theory of the case is the general rule. See 2 Charles A. Wright, Federal Practice and Procedure: Criminal 2d § 482, at 689-91 (1982) (stating that a party is entitled to a specific instruction on his theory of the case if there is evidence to support it and a proper request is made). The federal circuits have unanimously concluded that a criminal defendant is entitled to a theory of defense instruction provided there is a foundation in the evidence for the instruction.⁷

Despite the well-settled rule, the prosecution contends that “it is not error for the trial court to reject a defendant’s theory of the case instruction when it merely reiterates a general denial, argumentatively restates the evidence presented, or when the tendered instruction is encompassed in the other instructions given by the court.”

Previously) we have held that it is not error to reject a proposed jury instruction regarding a defendant’s theory of the case if the theory is not supported by the evidence.⁸ We have also held that it is not error for a judge to refuse a tendered jury instruction when that instruction is “encompassed” or “embodied” in the other instructions.⁹ We have never held, however, that the jury instructions setting forth the elements of the offense and the burden of proof, standing alone, can encompass, embody, or take the place of a defendant’s theory of the case.¹⁰

There is no reason to depart from the general rule based on an alibi defense.¹¹ A defendant is entitled to an instruction based on the theory of defense of alibi if the record contains evidence of alibi and the theory is not incorporated or included in other jury instructions. Jury instructions that merely set forth the elements of the offense and the burden of proof, without more, do not encompass a theory of defense. A trial court has an affirmative obligation to cooperate with counsel to either correct an alibi theory of the ease instruction or to incorporate the substance of such an instruction in one drafted by the court.

The record contains substantial evidence to support Nunez’s alibi theory of defense. In this case, the jury instructions set forth only the elements of the offense and the burden of proof and did not encompass or embody Nunez’s defense of alibi. Moreover, the trial court failed to correct Nunez’s tendered alibi instruction or to incorporate an alibi instruction in the other jury instructions.

Accordingly, we hold that the trial court erred in refusing to give an instruction based on Nunez’s theory of defense of alibi. Having determined that the trial court erred in refusing to give an instruction based on Nunez’s theory of defense of alibi, we must determine whether that failure constitutes reversible error.

B

We have repeatedly held that the failure to give a jury instruction on a defendant’s theory of the case constitutes reversible error.¹² The prosecution has cited no Colorado precedent holding that the failure to instruct a jury on a defendant’s theory of defense constitutes harmless error.

In affirming the judgments of conviction in Huckleberry, despite the absence of an alibi theory of the case instruction, we did not hold that the failure to give such an instruction was harmless error. That issue was not before the court. Rather, we merely held that the trial court properly refused to give an improper affirmative defense instruction based on alibi.

We are aware that some federal circuit courts of appeal have concluded that, in certain circumstances, the failure to instruct a jury on a defendant’s theory of alibi can constitute harmless error.¹³ United States v. Burse, 531 F.2d 1151 (2d Cir.1976) noted that:

There have been occasions when the courts have viewed the absence of an alibi instruction as harmless. When such an instruction has not been requested or when the evidence of the defendant’s guilt has been overwhelming or when the evidence in support of the alibi defense has been negligible or when the defendant’s presence at the scene of the crime has not been an element of the offense which the government was required to prove, the courts have held that failure to provide an alibi instruction does not require reversal.

Id. at 1153.

We need not reach the issue of whether harmless error analysis is appropriate because as Burse stated, “[without commenting on the propriety of these exceptions, we note that none of these mitigating circumstances is present in this case.” Id. Here, Nunez specifically requested an alibi instruction. The prosecution was required to prove Nunez’s presence at the Reeve’s residence to establish the aggravated robbery charge. The witnesses produced by Nunez, along with the evidence of the phone call, provided evidence to support his defense of alibi and the prosecution’s evidence of Nunez’s guilt was not overwhelming. We leave to the jury the task of evaluating the credibility of witnesses, the weight of testimony, and the adequacy of the defendant’s theory of defense.

Accordingly, we hold that the trial court’s error in refusing to give a theory of the case instruction based on Nunez’s claim of alibi constitutes reversible error. We therefore affirm the court of appeals’ reversal of Nunez’s convictions and return this case to the court of appeals with directions to remand for a new trial consistent with this opinion.

VOLLACK, J., dissents and ROVIRA, C.J., joins in the dissent.

1 . § 18-4-302, 8B C.R.S. (1986).

2 . § 16-11-309, 8A C.R.S. (1986).

3 . Section 18-1-407 provides:

(1) "Affirmative Defense” means that unless the state’s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, shall present some credible evidence on that issue.

(2) If the issue involved in an affirmative defense is raised, then the guilt of the defendant must be established beyond a reasonable doubt as to that issue as well as all other elements of the offense.

4 . In Huckleberry, the defendant tendered an instruction that provided:

Evidence has been introduced tending to establish an alibi which amounts to a contention that John F. Huckleberry was not present at the time when or at the place where he is alleged to have committed the offense charged.

If after consideration of all the evidence in the case you have a reasonable doubt whether the defendant was present at the time and place the alleged offense was committed, you must acquit him. The jury will always bear in mind that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witness or producing any evidence.

Huckleberry, 768 P.2d at 1237. The trial court rejected this instruction and instead offered to give a theory of the case instruction covering the alibi defense that provided:

It is defendant’s position that evidence was introduced showing he was not present at the time and place where the crime is alleged to have been committed.

The burden is upon the People to prove each and every element of the charge as explained at Instruction #-beyond a reasonable doubt.

Id. The defendant chose to reject this instruction rather than objecting to it.

5 . Huckleberry did not present this issue because the defendant rejected the trial court’s proposed instruction on the alibi theory of defense. As a result, the defendant in Huckleberry in effect waived the right to an instruction on his theory of defense and invited error. There was no need for this court to reverse the judgment in Huckleberry because error that the defendant has invited does not require reversal. 3A Charles A. Wright, Federal Practice and Procedure: Criminal 2d § 854, at 315 (1982); see also People v. Collins, 730 P.2d 293, 304-05 (Colo.1986) (finding that defendant could not challenge, on appeal, the trial court’s failure to give an instruction to which defendant had objected because defendant invited error); United States v. Gibson, 536 F.2d 1110, 1112 (5th Cir.1976) (finding that omission of instruction was insisted on by defendant and that any error was not only invited, but was demanded).

6 . In Read v. People, 119 Colo. 506, 509, 205 P.2d 233, 235 (1949) we stated:

There is nothing in our criminal practice more thoroughly established or definitely settled than the principle that when there is any evidence, however improbable, unreasonable or slight, which tends to reduce the homicide to the grade of manslaughter, the defendant is entitled to an instruction thereon upon the hypothesis that the same is true, and that it is for the jury, under proper instructions, and not the trial judge, to weigh and consider the evidence and determine therefrom what grade of crime, if any, was committed; and that the court’s refusal to instruct thereon is reversible error. (Citing twelve cases from 1869 to 1945) (emphasis added).

Since Read, this court, in over twenty cases, has reaffirmed the proposition that a defendant is either entitled to an instruction setting forth his theory of the case or has a right to such an instruction. See, e.g., People v. Tippett, 733 P.2d 1183, 1195 (Colo.1987) (finding that defendant is entitled to instruction); People v. Marquez, 692 P.2d 1089, 1098 (Colo.1984) (finding that trial court must give instruction); People v. Dillon, 655 P.2d 841, 845 (Colo.1982) (same).

7 . See, e.g., Brooke v. United States, 385 F.2d 279, 284 (D.C.Cir.1967); United States v. Wilson, 798 F.2d 509, 518-19 (1st Cir.1986); United States v. Bryser, 954 F.2d 79, 87 (2d Cir.), cert. denied sub nom., Degerolamo v. United States, _ U.S. _, 112 S.Ct. 2939, 119 L.Ed.2d 564 (1992); United States v. Marcus, 166 F.2d 497, 504 (3d Cir.1948); United States v. Hicks, 748 F.2d 854, 857 (4th Cir.1984); United States v. Lewis, 592 F.2d 1282, 1285 (5th Cir.1979); United States v. Plummer, 789 F.2d 435, 438 (6th Cir.1986); United States v. Carter, 910 F.2d 1524, 1531 (7th Cir.1990), cert. denied, _ U.S. _, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991); United States v. Webster, 769 F.2d 487, 490 (8th Cir.1985); United States v. Faust, 850 F.2d 575, 583 (9th Cir.1988); United States v. Scafe, 822 F.2d 928, 932 (10th Cir.1987); United States v. Finestone, 816 F.2d 583, 588 (11th Cir.), cert. denied, 484 U.S. 948, 108 S.Ct. 338, 98 L.Ed.2d 365 (1987).

8 . We have affirmed a refusal to give a theory of the case instruction that is not grounded in the evidence. See, e.g., People v. Marquez, 692 P.2d 1089, 1098 (Colo.1984); People v. Dillon, 655 P.2d 841, 845 (Colo.1982); People v. Tenorio, 197 Colo. 137, 144, 590 P.2d 952, 957 (1979); People v. Truesdale, 190 Colo. 286, 290, 546 P.2d 494, 497 (1976); People v. Griego, 183 Colo. 419, 420, 517 P.2d 460, 461 (1973); Wertz v. People, 160 Colo. 260, 261-62, 418 P.2d 169, 170 (1966); Sterling v. People, 151 Colo. 127, 131, 376 P.2d 676, 678 (1962), cert. denied, 373 U.S. 944, 83 S.Ct. 1554, 10 L.Ed.2d 699 (1963).

9 . We have affirmed a refusal to give a theory of the case instruction that is embodied or encompassed in other instructions. See, e.g., People v. Tippett, 733 P.2d 1183, 1195 (Colo.1987); People v. Holmes, 191 Colo. 477, 479, 553 P.2d 786, 788 (1976); Winters v. People, 174 Colo. 91, 93, 482 P.2d 385, 386 (1971); Bennett v. People, 168 Colo. 360, 363, 451 P.2d 443, 444 (1969); Edwards v. People, 160 Colo. 395, 404, 418 P.2d 174, 179 (1966); Coca v. People, 154 Colo. 488, 490, 391 P.2d 462, 463 (1964).

10 . In Huckleberry, we merely stated that the trial court properly instructed the jury as to the prosecution’s burden of proving the elements of the offenses charged. Huckleberry, 768 P.2d at 1239. We did not hold that such an instruction obviated the need for a theory of the case instruction. Rather, as the trial judge in Huckleberry recognized in proposing a theory of the case instruction based on an alibi defense, a defendant remains entitled to an alibi theory of the case instruction, even though that defendant is not entitled to an affirmative defense instruction based on alibi.

11 . The federal circuit courts that have considered the propriety of an instruction regarding an alibi theory of defense have concluded that, under proper circumstances, the jury must be given an alibi instruction when the defendant so requests. See, e.g., United States v. Bryser, 954 F.2d 79, 87 (2d Cir.), cert. denied sub nom., Degerolamo v. United States, _ U.S. _, 112 S.Ct. 2939, 119 L.Ed.2d 564 (1992); United States v. Carter, 910 F.2d 1524, 1531 (7th Cir.1990), cert. denied, _ U.S. _, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991); United States v. Dawn, 897 F.2d 1444, 1450 (8th Cir.), cert. denied, _ U.S. _, 111 S.Ct. 389, 112 L.Ed.2d 400 (1990); United States v. Braxton, 877 F.2d 556, 564 (7th Cir.1989); United States v. Webster, 769 F.2d 487, 490-91 (8th Cir.1985); United States v. Hicks, 748 F.2d 854, 857 (4th Cir.1984); United States v. Ragghianti, 560 F.2d 1376, 1379 (9th Cir.1977); United States v. Burse, 531 F.2d 1151, 1153 (2d Cir.1976); United States v. Megna, 450 F.2d 511, 513 (5th Cir.1971); United States v. Marcus, 166 F.2d 497, 503-04 (3d Cir.1948).

Burse explained the reasoning behind the rule requiring an instruction based on an alibi defense as foilows:

Jurors are, by definition, untrained in the specifics of the law and, accordingly, must be instructed as to the legal standards they are bound to apply. In those cases where an alibi defense is presented, there exists a danger that the failure to prove the defense will be taken by the jury as a sign of the defendant's guilt.

Burse, 531 F.2d at 1153.

12 . See, e.g., People v. Rivera, 186 Colo. 24, 28, 525 P.2d 431, 434-35 (1974) (reversing trial court because theory of case instruction not given); People v. Travis, 183 Colo. 255, 257, 516 P.2d 121, 122-23 (1973) (same); People v. Moya, 182 Colo. 290, 292-93, 512 P.2d 1155, 1156 (1973) (same); People v. Montague, 181 Colo. 143, 146, 508 P.2d 388, 389-90 (1973) (same); Bertalotto v. People, 175 Colo. 557, 558, 488 P.2d 1100, 1101 (1971) (same); Zarate v. People, 163 Colo. 205, 210, 429 P.2d 309, 312-13 (1967) (same).

13 . See 2 Charles A. Wright, Federal Practice and Procedure: Criminal 2d § 492, at 759 (1982) (noting that courts have used harmless error analysis to avoid reversal if an alibi, even if believed, was not broad enough to show that the defendant had not committed the crime). See, e.g., United States v. Dawn, 897 F.2d 1444, 1450 (8th Cir.) (finding harmless error because evidence against defendant was relatively strong), cert. denied, _ U.S. _, 111 S.Ct. 389, 112 L.Ed.2d 400 (1990); United States v. Webster, 769 F.2d 487, 490-91 (8th Cir.1985) (finding harmless error based on Burse exceptions); United States v. Hicks, 748 F.2d 854, 857 (4th Cir.1984) (finding no harmless error but recognizing Burse exceptions); United States v. Grapp, 653 F.2d 189, 194-95 (5th Cir.1981) (finding harmless error because alibi was not a defense to charges); United States v. Guillette, 547 F.2d 743, 752 (2d Cir.1976) (finding harmless error because alibi was not a defense to charges), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977). But see United States v. Escobar de Bright, 742 F.2d 1196, 1201 (9th Cir.1984) (holding that failure to instruct on defendant's theory of the case can never be considered harmless error but is reversible per se) (emphasis added).

Cf. United States v. Bryser, 954 F.2d 79, 87 (2d Cir.) (finding no error because alibi was not a defense to charges), cert. denied sub nom., Degerolamo v. United States, _ U.S. _, 112 S.Ct. 2939, 119 L.Ed.2d 564 (1992); United States v. Carter, 910 F.2d 1524, 1531 (7th Cir.1990) (finding that absence of instruction was not reversible error because instructions as a whole, which included theory of case instruction, correctly charged jury), cert. denied, _ U.S. _, 111 S.Ct. 1628, 112 L.Ed.2d 400 (1991); Alicea v. Gagnon, 675 F.2d 913, 926 (7th Cir.1982) (finding no error because other instructions covered alibi); United States v. Coughlin, 514 F.2d 904 (2d Cir.1975) (holding that error was not reversible because defendant failed to request instruction in writing); United States v. Lee, 483 F.2d 968, 970 (5th Cir.1973) (finding no instruction required because alibi is not a defense to charges); United States v. Erlenbaugh, 452 F.2d 967 (7th Cir.1971) (finding no error if evidence of alibi is not strong), aff'd on other grounds, 409 U.S. 239, 93 S.Ct. 477, 34 L.Ed.2d 446 (1972).