Summary
finding reversible error where the court gave no explanation for and failed to work with counsel after rejecting the defendant's instruction
Summary of this case from People v. BrunoOpinion
No. 84CA0748
Decided November 7, 1985. Rehearing Denied December 5, 1985. Certiorari Denied March 31, 1986 (86SC5).
Appeal from the District Court of Boulder County Honorable Richard C. McLean, Judge
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Cynthia D. Jones, Assistant Attorney General, for Plaintiff-Appellee.
Miller, Hale and Harrison, Daniel C. Hale, for Defendant-Appellant.
Division I.
Defendant, Jeffry Weiss, appeals from the judgment of conviction entered upon jury verdicts finding him guilty of conspiracy to distribute, and distribution of, cocaine. We reverse.
At trial, the prosecution introduced evidence that defendant accepted $2,400 from one Ms. Smith in exchange for cocaine. Defendant denied selling cocaine to Ms. Smith and introduced evidence that the money given to him by her was in payment for an automobile which she had purchased from him through his used car business. At the conclusion of the evidence, the trial court submitted to the jury the basic instructions common to all criminal cases, but, without explanation, refused to give any of defendant's three tendered instructions on his theory of defense.
Defendant contends that the trial court erred in refusing to instruct the jury on his theory of defense. We conclude that the trial court correctly rejected defendant's tendered instructions as improperly worded. However, because there was evidentiary support for defendant's theory of defense, we hold that the trial court erred in failing to give a properly worded instruction on his theory.
A defendant is entitled to a properly worded instruction setting forth his theory of defense so long as there is any evidence in the record to support the instruction and it is not encompassed in other instructions. People v. Dillon, 655 P.2d 841 (Colo. 1982). This rule applies even though the defendant's theory consists entirely of an explanation of his actions which, if believed by the jury, would absolve him of criminal responsibility. People v. Meller, 185 Colo. 389, 524 P.2d 1366 (1974); People v. Moya, 182 Colo. 290, 512 P.2d 1155 (1973).
In this case, defendant's explanation of the reason for his receipt of the money from Ms. Smith was supported by certain of the evidence in the record, but the basic instructions given to the jury did not encompass this explanation as his theory of defense. Thus, he was entitled to an instruction concerning his explanation of the events. See People v. Moya, supra.
A theory of the defense instruction which contains an explanation must be brief, general, and must instruct the jury on the legal effect of the explanation. See People v. Bookman, 646 P.2d 924 (Colo. 1982); People v. Meller, supra. The improper emphasis of particular evidence in an instruction is not favored. See Winters v. People, 174 Colo. 91, 482 P.2d 385 (1971). Furthermore, an instruction which contains argumentative matter is justifiably refused. People v. Martinez, 652 P.2d 174 (Colo.App. 1981).
All three of defendant's tendered instructions contained a two-page, detailed recitation of the facts in evidence which would support his theory. This recitation was followed by a general denial of the charges and a reassertion of his innocence. Consequently defendant's tendered instructions were not in the required form, and thus, we conclude that they were properly rejected by the trial court.
Although a tendered instruction may be properly rejected, a trial court is under a positive duty to cooperate with counsel either to correct the tendered instruction or to incorporate the substance of such an instruction into one to be drafted by the court. People v. Moya, supra. Here, the trial court gave no explanation for its rejection of defendant's theory of defense instructions, did not work with defense counsel to prepare a properly worded instruction, and did not independently draft one in proper form. This was reversible error. See People v. Bookman, supra.
Because of our resolution of this issue, it is unnecessary to consider defendant's claims of prosecutorial misconduct. We have also considered defendant's other claims and find no error.
The judgment is reversed and the cause is remanded for new trial.
JUDGE PIERCE concurs and JUDGE KELLY specially concurs.