Opinion
No. 94CA0920
January 25, 1996 Petition for Rehearing DENIED February 22, 1996
Appeal from the District Court of Adams County, Honorable Thomas Ensor, Judge, No. 93CR1392.
JUDGMENT AFFIRMED
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Robert M. Petrusak, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Patrick J. Mulligan, Denver, Colorado; Robert L. Ransome, Lakewood, Colorado, for Defendant-Appellant.
Defendant, James Bastin, appeals the judgments of conviction entered on jury verdicts finding him guilty of first degree sexual assault, sexual assault on a child, and felony murder. He challenges the trial court's change in a jury instruction after closing arguments and the sufficiency of the evidence to support the underlying sexual assault convictions. We affirm.
A twelve-year-old girl was the victim of a violent sexual assault. She was then strangled to death, and her body was thrown into a dumpster, dowsed with gasoline, and set on fire.
At trial, numerous witnesses placed defendant with the victim in the hours before her death. Two witnesses testified that they were present when defendant put the victim's body into the dumpster.
Defendant's mother testified that defendant told her he was with the victim that evening. He claimed he had not sexually assaulted the victim. Rather, he had only engaged in "horseplay." However, he admitted to his mother that, while he had the victim in a headlock, he accidentally caused her death. He then placed the victim's body in his car and "panicked."
I.
Defendant contends that the trial court's change in the wording of the felony murder instruction, made after closing argument, violated his constitutional rights to trial by a jury, to due process, and to present a defense because defense counsel had formulated his closing argument based on the instruction in its prior form. Under the circumstances presented here, we find no error.
Before closing arguments, the court read the instructions to the jury. The instruction on the charge of felony murder, to which neither party had objected, provided:
The elements of the crime of Felony Murder in the First Degree are:
1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. acting alone,
4. committed Sexual Assault in the First Degree, or Sexual Assault on a Child, and
5. in the course of or in furtherance of First Degree Sexual Assault or Sexual Assault on a Child, or in the immediate flight therefrom,
6. the death of a person, other than one of the participants, is caused by anyone.
The prosecutor and defense counsel then made closing arguments. In a portion of his argument, defense counsel made several references to the third listed element, "acting alone." For example, he argued: "[T]he prosecutor has to prove that [defendant] acted alone in order to convict him of felony murder, that's the law that the Judge gave you."
After closing arguments the court, outside the presence of the jury, stated to counsel:
I'm troubled by one of the instructions that we gave, and I'm particularly troubled, I suppose, by the argument that was made in regard to that instruction. And that dealt with the elements of the crime of felony murder[,] and specifically dealing with element number three.
This court, when we did the instruction phase, was given two alternate forms of . . . this instruction. And the only difference, between the two, was paragraph three. . . . [O]ne of those alternates read, acting alone, and one of those read . . . acting with one or more persons. There was no evidence . . . of [defendant's] acting with one or more other persons. So the court rejected that, and took the one that said acting alone.
I think that that is in error. I think that the error of that is pointed out by the argument that was made by Defense Counsel . . . who, on several occasions, indicated to the jury that the People must prove that the Defendant was acting alone before he can be found guilty of Felony Murder. And that simply is not the law in the State of Colorado. . . .
[T]he argument was, in fact, wrong, and misleading, according to Colorado law, and I think that I have the responsibility of telling [the jury] what the correct Colorado law is.
Defense counsel objected to any change in the instructions given and, in the alternative, requested a mistrial. The court rejected the request for a mistrial but offered the attorneys ten minutes to make additional closing argument to the jury. Both declined.
The court called the jurors into the courtroom and advised them it was withdrawing the felony murder instruction because it did not accurately state the law. The court replaced the instruction with one stating as its third listed element: "acting alone or with one or more persons." The court then read that instruction and excused the jury to commence its deliberations.
The pattern jury instruction on this charge provides as its third element: "acting [alone][with one or more persons]." COLJI-Crim. No. 9:02 (1983). It is patterned after § 18-3-102(1)(b), C.R.S. (1995 Cum. Supp.), which provides that in the commission of felony murder, a person may be "[a]cting either alone or with one or more persons" in committing an enumerated felony. Thus, whether the accused acted alone or with others is not a true element of this offense. The statute merely makes clear that guilt results in either case. Cf. People v. Scheer, 184 Colo. 15, 518 P.2d 833 (1974). We therefore agree with the trial court that the initial instruction did not accurately reflect the law.
Crim. P. 30 provides that the instructions shall be read to the jury before closing arguments and that counsel may comment on the instructions during closing arguments. This procedure affords counsel the opportunity to structure closing arguments based on the instructions which will govern the jury's deliberations. See United States v. Gaskins, 849 F.2d 454 (9th Cir. 1988) (discussing similar Fed.R.Crim.P. 30).
However, the trial court has a duty to instruct the jury properly on all of the elements of the offenses charged. People v. Cowden, 735 P.2d 199 (Colo. 1987). Correspondingly, it has a duty to correct erroneous instructions. See 3 ABA, Standards for Criminal Justice, Standard 15-4.3(c) (2d ed. 1982)("The court may recall the [jurors] after they have retired and give them additional instructions in order . . . to correct or withdraw an erroneous instruction. . . ."). It likewise has a duty to correct misstatements of counsel that are sufficient to mislead the jury regarding the applicable law. See Longinotti v. People, 46 Colo. 173, 102 P. 165 (1909).
When circumstances require that a change in the instructions be made after closing arguments, reversible error occurs only if defense counsel was unfairly misled in formulating closing arguments or prevented from arguing a meritorious defense to the jury. Cf. United States v. Gaskins, supra; United States v. Smith, 629 F.2d 650 (10th Cir. 1980), cert. denied, 449 U.S. 994, 101 S.Ct. 532, 66 L.Ed.2d 291 (1980).
Here, as the apparent result of an oversight or an initial misunderstanding by the trial court, the felony murder instruction read to the jury did not properly state the true elements of the crime. The error in the instruction did not become apparent until its ramifications were brought to the court's attention by defense counsel's argument.
The argument that the jury must acquit defendant of felony murder unless the prosecution proved defendant acted alone was not a meritorious defense and was not part of a good faith attempt to modify existing law. The existing and controlling law was not only clearly established, it was plainly set forth in the statute defining the crime. In such circumstances, at least when the specific legal argument has not been brought to the court's attention, counsel cannot claim to have been unfairly misled in formulating closing arguments. See People v. Sepeda, 196 Colo. 13, 581 P.2d 723 (1978); Rules of Professional Conduct 1.1 and 3.1; see also Rules of Professional Conduct 3.3(a)(3); Fite v. Lee, 521 P.2d 964 (Wash.App. 1974); People v. Schultheis, 638 P.2d 8 (Colo. 1981); cf. Arellano v. People, 177 Colo. 286, 493 P.2d 1362 (1972).
Furthermore, in his closing argument, defense counsel argued, as he had in opening argument and throughout the trial, that the lack of evidence linking defendant to the sexual assault and the questionable credibility of the prosecution's witnesses required that defendant be acquitted. Defense counsel made no concessions of fact in closing argument as a result of the erroneous instruction but merely added an additional legal argument. Cf. United States v. Oliver, 766 F.2d 252 (6th Cir. 1985). And, defense counsel was given the option to provide further argument in light of the change in instructions to the jury and thereby minimize any conceivable prejudicial impact on the defense. Cf. United States v. Gaskins, supra; United States v. Smith, supra.
Under these circumstances, we conclude that defense counsel was not unfairly misled in formulating closing argument or unfairly prevented from arguing any meritorious defense. See United States v. Smith, supra. Hence, the change in instruction did not violate defendant's right to trial by a jury, to due process, or to present a defense, and the trial court's denial of defendant's motion for a mistrial on this basis was not an abuse of discretion. See People v. Chastain, 733 P.2d 1206 (Colo. 1987).
II.
Defendant also contends that the evidence presented was insufficient to support the underlying felony sexual assault convictions and therefore was insufficient to support the felony murder conviction, thus requiring that all of the convictions be reversed. We are not persuaded.
When the sufficiency of the evidence is challenged on appeal, our task is to determine whether the evidence, viewed as a whole, and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crimes charged beyond a reasonable doubt. This standard therefore requires that the prosecution be given the benefit of any inferences fairly drawn from the evidence. And, the determination of the credibility of the witnesses remains solely within the province of the jury. See Kogan v. People, 756 P.2d 945 (Colo. 1988).
Here, the prosecution lacked physical evidence linking defendant to the victim's sexual assault, such as fingerprints or body fluids, in part because of the severely burned condition of the victim's body. However, the prosecution did present physical evidence that the anal rape of the victim was extremely violent, leaving a tear in the rectal opening and several inches of contusions from the rectal opening deeper into the rectal tissue. From this evidence, the jury could reasonably have inferred that the victim would not have been engaging in "horseplay" with defendant at the time of her death and hence could reasonably have disbelieved that defendant had no involvement in the rape.
Furthermore, in addition to defendant's admission to his mother that he caused the victim's death, the prosecution presented the testimony of witnesses who had heard the victim say she was going to meet defendant that evening and had seen defendant with the victim at different times during the course of the evening. And, defense counsel conceded in closing argument that defendant was present at the dumpster when the victim's body was burned.
Viewing the evidence as a whole and in the light most favorable to the prosecution, reasonable jurors could find that the elements of the felony sexual assault and felony murder charges had been proven beyond a reasonable doubt. We therefore conclude that the evidence was sufficient to support defendant's convictions.
Judgment affirmed.
JUDGE RULAND concurs.
JUDGE JONES dissents.