Opinion
No. 76-540
Decided February 2, 1978.
Convicted of second degree murder, defendant appealed.
Reversed
1. CRIMINAL LAW — Murder Trial — Voluntary Intoxication — Instruction — Not Given — Contrary Instruction Given — Issue — Plain Error. Where, in murder trial, trial court not only failed to instruct on the element of voluntary intoxication, but also specifically instructed the jury that voluntary intoxication could not be a defense to second degree murder, its actions in so doing amounted to a failure to instruct on a necessary element of second degree murder, and thus the matter is one of plain error and is reviewable on appeal notwithstanding the fact that defendant did not raise the issue below.
2. Murder Trial — Voluntary Intoxication — Defense — Second Degree Murder — Rule Applicable — Events Occurring — After 1973 Amendments. The rule announced in People v. Cornelison — that voluntary intoxication may be a defense to second degree murder — is a rule applicable whenever the events giving rise to a second degree murder charge occurred after the effective date of the 1973 statutory amendments upon which Cornelison is based.
Appeal from the District Court of the County of Jefferson, Honorable George G. Priest, Judge.
Nolan L. Brown, District Attorney, John E. Byron, Deputy District Attorney, Connie L. Peterson, Deputy District Attorney, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, for defendant-appellant.
A jury convicted defendant, Gilbert Eugene Stitt, of second degree murder until § 18-3-103(1)(a), C.R.S. 1973. Defendant appeals, arguing that the trial court erred in failing to instruct the jury that voluntary intoxication could be a defense to second degree murder if it negates the required specific intent. He relies on People v. Cornelison, 192 Colo. 337, 559 P.2d 1102 (1977). His reliance is proper, and we reverse the conviction.
The record is replete with evidence that defendant had been drinking heavily the day of the incident. However, the People contend that defendant is precluded from arguing the applicability of the Cornelison rule since he neither objected to the instruction given on voluntary intoxication, tendered his own instruction, nor raised the issue in his motion for new trial. We disagree.
[1] The trial court not only failed to instruct on the element of voluntary intoxication, it specifically instructed the jury that voluntary intoxication could not be a defense to second degree murder. This amounted to a failure to instruct on a necessary element of second degree murder — specific intent — which failure constituted plain error. See People v. Archuleta, 180 Colo. 156, 503 P.2d 346 (1972). Accordingly, we may review the applicability of Cornelison notwithstanding the fact that defendant failed to raise the issue below. Crim. P. 52(b); People v. Mills, 192 Colo. 260, 557 P.2d 1192 (1977).
Since the judgment was entered in this case in May of 1976, the People also contend that Cornelison, which was announced in January of 1977, should not be applied retroactively. Again, we disagree.
The touchstone of Cornelison was the fact that the legislature, by amending the statute in 1973, redefined second degree murder, making it a specific intent crime. Since § 18-1-803, C.R.S. 1973, provides that evidence of impaired mental condition may be offered to rebut specific intent, the Supreme Court concluded in Cornelison that voluntary intoxication could be evidence of a defendant's "inability to entertain the specific intent required for a conviction of second degree murder." Furthermore, the court determined that due process requires that where there is evidence of voluntary intoxication, a defendant is entitled to an instruction as to his inability to form the necessary intent. See People v. Meller, 185 Colo. 389, 524 P.2d 1366 (1974).
[2] Thus, since specific intent has been an element of second degree murder since the statutory changes in 1973, the same issues which confronted the Supreme Court in Cornelison face us now. We hold that the rule announced there, based as it was entirely on the 1973 statutory change, applies whenever the events giving rise to a second degree murder change occurred after the 1973 amendments.
We reverse the judgment and remand the cause for a new trial.
JUDGE COYTE and JUDGE ENOCH concur.