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People v. Stewart9/9/2002
he major charges, we view the omission of the intervening cause instruction as to first and second degree assault as an oversight in light of the heavy reliance Stewart placed on this theory during trial. Throughout, he maintained that Ehrmann abruptly leapt upon the vehicle, although he also argued that he acted in self defense and that the incident was an accident. While it is possible that Stewart elected to emphasize the theory of self defense for strategic reasons, and concomitantly wished to de-emphasize intervening cause as an affirmative defense to first and second degree assault, we assume without deciding that the omission was an oversight.
In light of the likely nontactical basis of the omission, we find Chief Justice Quinn's special concurrence in Zapata particularly persuasive. There, he stated that if "claimed error is truly `plain,' in that it so undermines the fundamental fairness of the trial as to cast serious doubt on the reliability of the result, it would seem ... that an appellate court, rather than refusing to address the issue by a wooden application of the invited error rule, should come to grips with the defendant's claim in order to prevent a possible miscarriage of justice." 779 P.2d at 1311 (Quinn, C.J., specially concurring). He recognized that the although invited error in most cases will result from defense counsel's inadvertence or negligence, it is the defendant who must bear the stigma of a conviction and the burden of prison time; accordingly, application of the plain error doctrine, rather than the invited error doctrine, "does no more than provide an appellate court with the necessary means to reverse a criminal conviction obtained in derogation of fundamental fairness." Id. Additionally, although such errors likely will be considered in post-conviction proceedings under Crim. P. 35(c), an appellate court's willingness to consider them on direct appeal would "obviate any additional injustice" resulting from what may later be deemed an invalid conviction. Id. at n.2.
We agree. Where it appears that an error or omission in jury instructions is due to inadvertence or attorney incompetence, the reviewing court should apply the doctrine of plain error. Where, however, the omission is strategic, the invited error doctrine should be invoked. Accordingly, a prudent trial court should, upon detecting any omissions or errors, make a record during which it is determined into which camp the instructional defects fall. We reiterate that where a trial judge finds a tendered instruction inaccurate or incomplete, she is required to do no more than notify counsel of her concerns and give counsel an opportunity to redraft; anything more "would be tantamount to interjecting the trial judge into the strategic decision-making of both parties in every trial". Hansen v. State Farm Mut. Auto. Ins. Co., 957 P.2d 1380, 1384 (Colo. 1998).
In this case, as noted above, it appears that the alleged error was the result of inadvertence. Accordingly, we review the instructional omission for plain error. Finding none here, we reverse the court of appeals' decision on this issue.
It is axiomatic that a trial court is obligated to instruct the jury correctly on the law applicable to the case. People v. Cowden, 735 P.2d 199 (Colo. 1987); see also Hansen, 957 P.2d at 1384. A defendant also is entitled to a theory of the case instruction if the record contains any evidence, even highly improbable testimony by the defendant, to support the theory. People v. Nunez, 841 P.2d 261, 264-65 (Colo. 1992); People v. Fuller, 781 P.2d 647, 651 (Colo. 1989).
While the court is duty-bound to instruct the jury, "it is equally the duty of counsel to assist the court by ob
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