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Key v. People1/31/1986
diluted the prior instruction on the need for reflection and judgment.
The majority concedes that Instruction No. 15 was in error, but holds that the error was harmless beyond a reasonable doubt. The majority finds that an appreciable length of time must have elapsed in each of the intervals between the various attacks by Key upon Shadday and goes on to find that in each period Key had sufficient time to deliberate whether to kill Shadday. Majority op. at 12. Equally consistent with the evidence, I believe, is that the first two shots were fired in the course of a fight and without deliberation, as the majority is willing to assume, and thereafter Key engaged in a series of attacks upon Shadday in a frenzy born of panic. But it is not for an appellate court to draw these inferences one way or another. This is the role of a properly instructed jury. Here, not only was the instruction on deliberation, the "central issue at trial," in error, but the jury was so concerned about the existence of deliberation that in the course of its efforts to arrive at a verdict, it sought additional guidance from the court, without success. Thus, a serious question concerning the degree of Key's culpability was left for determination by a jury that had been erroneously instructed on the controlling legal standard and that had demonstrated its difficulty in resolving the issue by requesting a clarifying instruction. This is not the stuff of which harmless error is made. I dissent.
I am authorized to say that CHIEF JUSTICE QUINN joins in this dissent.
JUSTICE NEIGHBORS dissenting:
I agree with the court's holding that Instruction No. 15 was constitutionally deficient. However, I disagree that the constitutional error was harmless beyond a reasonable doubt. Therefore, I respectfully dissent.
I will first fully explicate my reasons for concluding that the erroneous definition of "after deliberation" contained in Instruction No. 15 is an error of constitutional magnitude. I will then explain why I believe the error is not harmless beyond a reasonable doubt.
I.
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 the defendant possessed the culpable mental state required by the applicable statute. People v. Mattas, 645 P.2d 254, 257 (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.
In analyzing the effect of a particular instruction, an appellate court must examine the jury instructions in their entirety. Mattas, 645 P.2d at 258. Instructions which, taken as a whole, are confusing or which permit the jury to find the defendant guilty upon a showing by the prosecution of a lesser degree of culpability than required by the statute are not adequate. See id. at 259 ("The rule applied in . . . this case is that the jury must be clearly instructed as to the mental state applicable to a crime.") (emphasis in original).
The Supreme Court recently addressed the due process implications of conflicting instructions pertaining to the element of intent in a homicide case. In Francis v
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