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Key v. People1/31/1986
Inc. v. Duncan's Estate, 185 Colo. 245, 248, 523 P.2d 983, 985 (1974) (" here a legislature re-enacts or amends a statute and does not change a section previously interpreted by settled judicial construction, it must be concluded that the legislature has agreed with the judicial construction."). Therefore, the trial court erred when it submitted Instruction No. 15 to the jury.
III.
Having concluded that Instruction No. 15 contains an erroneous definition of "after deliberation," we must now consider whether that error was of constitutional magnitude and, if so, whether the error was harmless beyond a reasonable doubt.
Under the due process clause of the fourteenth amendment to the United States Constitution an accused may not be convicted of a criminal offense "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). The prosecution's burden includes proving beyond a reasonable doubt that Key possessed the culpable mental state required by the applicable statute. People v. Mattas, 645 P.2d 254 (Colo. 1982). It is the duty of the trial court to properly instruct the jury on all matters of law, and instructions which fail to correctly define the elements of an offense charged, so that the jury may decide whether they have been established beyond a reasonable doubt, are constitutionally deficient. Id.
We believe that Instruction No. 15 was constitutionally deficient. Standing alone, the instruction defined the essential element of "deliberation" in a manner inconsistent with section 18-3-101(3), 8 C.R.S. (1978), and Sneed, 183 Colo. at 96, 514 P.2d 776. However, error of constitutional dimension does not require reversal if the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967); Graham v. People, 705 P.2d 505 (Colo. 1985); People v. Myrick, 638 P.2d 34 (Colo. 1981); People v. Blair, 195 Colo. 462, 579 P.2d 1133 (1978). In the context of an erroneous jury instruction on a culpable mental state, we have previously considered two factors to determine whether the error was harmless beyond a reasonable doubt. First, the court reviews the jury instructions as a whole to ascertain whether -- despite the erroneous instruction -- the jury must have found that the defendant acted with the required mental state. People v. Blair, 195 Colo. at 462, 579 P.2d 1133. Second, we consider whether the evidence on the issue of mens rea was overwhelming. Id.
We do not believe that Instruction No. 15 permitted the jury to return a guilty verdict without finding that the Key killed Shadday "after deliberation," as that term is defined in section 18-3-101(3), 8 C.R.S. (1978), and in Sneed, 183 Colo. at 96, 514 P.2d at 776. Instruction No. 14 defined "after deliberation" in terms identical to those contained in section 18-3-101(3). Instruction No. 18, the defendant's theory of the case, also employed the statutory language defining "after deliberation." The erroneous language in Instruction No. 15 did not so distort the definition of "after deliberation" in Instruction No. 14 that the prosecution was relieved of its burden of proving the mental culpability requirement of first-degree murder beyond a reasonable doubt.
Additionally, the ev
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