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Key v. People1/31/1986
ich has been committed in a hasty or impulsive manner. "Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict." Francis v. Franklin, 105 S. Ct. at 1975 (1985) (footnote omitted). "If . . . two instructions are in direct conflict on the requisite culpable mental state, and one of the instructions is an incorrect and clearly prejudicial statement of law, the fact that the other instruction contains a correct statement of law cannot cure the error." People v. Riley, 708 P.2d 1359, 1365 (Colo. 1985).
With inconsistent and conflicting instructions to guide its deliberations, the jury could not properly evaluate the evidence to determine whether the prosecution had met its burden of proof on the element of "after deliberation." Because the instructions, taken as a whole, obfuscated that crucial element, the jury instructions were constitutionally deficient.
II.
Pursuant to Crim. P. 52(a) any "error . . . which does not affect substantial rights" of the defendant shall be disregarded. Before an instructional error of constitutional dimension can be held harmless, "the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh'g denied, 386 U.S. 987, 18 L. Ed. 2d 241, 87 S. Ct. 1283 (1967). See also Connecticut v. Johnson, 460 U.S. 73, 74 L. Ed. 2d 823, 103 S. Ct. 969 (1983); People v. Mascarenas, 666 P.2d 101 (Colo. 1983). In applying the harmless-constitutional-error rule, a reviewing court must assess the error in light of the facts of the case to determine whether the error affected the outcome of the trial. See Graham v. People, 705 P.2d 505 (Colo. 1985).
In Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985), the Supreme Court affirmed the decision of the Circuit Court of Appeals for the Eleventh Circuit which held that the instructional error was not harmless beyond a reasonable doubt. The court of appeals had earlier stated: "Here, Franklin admitted that he fired the gun and killed Mr. Collie. His only defense was that he did not have the requisite intent to kill. The facts did not overwhelmingly preclude that defense." Francis v. Franklin, 720 F.2d 1206, 1212 (11th Cir. 1983). The Supreme Court upheld the court of appeals' conclusion that the evidence of intent was far from overwhelming, noting that the jury requested reinstruction on the elements of malice and accident.
Although the evidence against the defendant in this case is substantial, I am persuaded that the prosecution has failed to prove beyond a reasonable doubt that the erroneous instruction was harmless. The element of "after deliberation" was the crucial factor in the prosecution's case against the defendant for first-degree murder since the defendant admitted that he committed the homicide but claimed that it was done during a fistfight provoked by the victim. The facts adduced at trial do not overwhelmingly preclude the defendant's theory of the case.
The evidence indicated that the victim was upset about having been asked to move into another barracks. Key and Shadday frequently drove into the mountains to practice target shooting, and on May 14 brought along a twelve-pack of beer when they went to engage in that activity. Key and Shadday drank all but one of the bottles of beer before an argument developed between the two over the room situation. The corone
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