v. Wakefield

2018 COA 37, 428 P.3d 639

• Court: Colorado Court of Appeals
• Decided: March 22, 2018
• Docket: 15CA0654, People
• Status: Published

Opinion

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-

¶ 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.