     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                              March 22, 2018

                                2018COA37

No. 15CA0654, People v. Wakefield — Criminal Law — Jury
Instructions — Defenses — Defense of Person

     A division of the court of appeals considers whether a trial

court must give a self-defense instruction where a defendant

testifies that a gun discharged accidentally, killing the victim, but

there is also evidence that the shooting was in self-defense. The

division concludes that the trial court must give the self-defense

instruction in that circumstance.

     In so concluding, the division harmonizes potentially

conflicting case law from the Colorado Supreme Court in People v.

Naranjo, 2017 CO 87; Brown v. People, 239 P.3d 764 (Colo. 2010);

People v. Garcia, 826 P.2d 1259 (Colo. 1992); Idrogo v. People, 818

P.2d 752 (Colo. 1991); Vigil v. People, 143 Colo. 328, 353 P.2d 82
(1960); Huffman v. People, 96 Colo. 80, 39 P.2d 788 (1934); and

Jabich v. People, 58 Colo. 175, 143 P. 1092 (1914).

         Article II, section 3 of the Colorado Constitution recognizes the

right of a person to act in self-defense, and under binding case law,

when a defendant presents at least a scintilla of evidence in support

of a self-defense instruction, the court must instruct the jury on

self-defense. Defendant’s claim of accident in the course of self-

defense was not so inconsistent as to deprive him of the right to

have the jury instructed on self-defense.

         The division also concludes that statements made by

defendant to a private security guard and the police were

admissible under Miranda v. Arizona, 384 U.S. 436 (1966), but the

trial court was required to conduct a distinct due process analysis

of whether the statements to the police were voluntary. Finally,

photos of marijuana in defendant’s apartment should not have been

admitted at trial because they posed a danger of unfair prejudice

that outweighed their probative value.

         The conviction is reversed, and the case is remanded for a new

trial.
COLORADO COURT OF APPEALS                                           2018COA37


Court of Appeals No. 15CA0654
City and County of Denver District Court No. 14CR1513
Honorable Edward D. Bronfin, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Timothy Wakefield,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division VI
                          Opinion by JUDGE TERRY
                               Harris, J., concurs
                Bernard, J., concurs in part and dissents in part

                          Announced March 22, 2018


Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Haddon, Morgan & Foreman, P.C., Norman R. Mueller, Rachel A. Bellis,
Denver, Colorado, for Defendant-Appellant
¶1    When there is evidence in a murder case indicating that the

 defendant shot the victim either accidentally or in self-defense, is

 the trial court required to grant his request for a self-defense

 instruction? Under the facts of this case, we answer “yes” to this

 question. In our analysis, we harmonize potentially conflicting case

 law from our supreme court in People v. Naranjo, 2017 CO 87;

 Brown v. People, 239 P.3d 764 (Colo. 2010); People v. Garcia, 826

 P.2d 1259 (Colo. 1992); Idrogo v. People, 818 P.2d 752 (Colo. 1991);

 Vigil v. People, 143 Colo. 328, 353 P.2d 82 (1960); Huffman v.

 People, 96 Colo. 80, 39 P.2d 788 (1934); and Jabich v. People, 58

 Colo. 175, 143 P. 1092 (1914).

¶2    Defendant, Timothy Wakefield, appeals his judgment of

 conviction for second degree murder. We reverse and remand for a

 new trial.

                             I. Background

¶3    Defendant was convicted based on an altercation during which

 he was holding a gun that discharged, causing the victim’s death.

¶4    Defendant and the victim were longtime friends, and the

 victim was visiting defendant from out of state. But in the hours

 leading up to the shooting, the victim and defendant argued and


                                    1
 were involved in a series of increasingly violent physical fights,

 during one of which defendant lost consciousness.

¶5    There was no dispute that defendant was holding a shotgun

 when the victim was killed. Just after the shooting, defendant

 indicated to two people that he had acted in self-defense. But

 defendant testified at trial that when the victim stepped forward

 and reached for the gun, defendant pulled the gun up and away

 from the victim’s reach, and the gun “went off.” According to

 defendant, he thought that the victim “was going to take the gun

 and hurt [him] with it.” Defendant maintained that he did not

 intend to shoot or hurt the victim.

¶6    Defendant was tried for first degree murder, but the jury

 instead convicted him of the lesser included offense of second

 degree murder.

                      II. Self-Defense Instruction

¶7    Defendant first argues that the trial court erred by declining to

 give his tendered jury instruction on self-defense. Because we

 agree, we reverse the conviction and remand for a new trial.




                                    2
                           A. Legal Standards

¶8     We review de novo whether there is sufficient evidence to

  support giving a defendant’s requested self-defense jury instruction.

  People v. Newell, 2017 COA 27, ¶ 19. “When considering whether a

  defendant is entitled to [a] requested instruction[], we consider the

  evidence in the light most favorable to the defendant.” Cassels v.

  People, 92 P.3d 951, 955 (Colo. 2004). The court’s rejection of a

  defendant’s tendered jury instruction is reviewed for constitutional

  harmless error. See Neder v. United States, 527 U.S. 1, 8-15 (1999);

  Griego v. People, 19 P.3d 1, 8 (Colo. 2001).

¶9     Generally speaking, there are two types of defenses to a

  criminal charge. People v. Pickering, 276 P.3d 553, 555 (Colo.

  2011). First, there are affirmative defenses, which seek to justify,

  excuse, or mitigate the commission of the act. Id. Second, there

  are traverses, or element-negating defenses, which “effectively refute

  the possibility that the defendant committed the charged act by

  negating an element of the act.” Id.

¶ 10   Self-defense can be either an affirmative defense or an

  element-negating defense depending on the grade of homicide

  charged. When the charged offense requires intent, knowledge, or


                                    3
  willfulness, as second degree murder does, see § 18-3-103(1),

  C.R.S. 2017, self-defense is an affirmative defense, Pickering, 276

  P.3d at 555. “[I]t is possible for a person to knowingly cause the

  death of another, thus satisfying the basic elements of second-

  degree murder under section 18-3-103(1), but to nevertheless do so

  in self-defense as defined under section 18-1-704, [C.R.S. 2017,]

  and therefore not be guilty of second-degree murder.” Pickering,

  276 P.3d at 556.

¶ 11   “In Colorado, if presented evidence raises the issue of an

  affirmative defense, the affirmative defense effectively becomes an

  additional element, and the trial court must instruct the jury that

  the prosecution bears the burden of proving beyond a reasonable

  doubt that the affirmative defense is inapplicable.” Id. at 555.

¶ 12   The supreme court has “consistently held that where the

  record contains any evidence tending to establish the defense of

  self-defense, the defendant is entitled to have the jury properly

  instructed with respect to that defense.” Idrogo, 818 P.2d at 754;

  see also People v. Saavedra-Rodriguez, 971 P.2d 223, 228 (Colo.

  1998) (quantum of evidence necessary for giving affirmative defense

  instruction is “a scintilla of evidence, or some evidence”). The


                                    4
  evidence to support such an instruction may come from any source,

  and may even consist of “highly improbable testimony by the

  defendant.” People v. Garcia, 28 P.3d 340, 347 (Colo. 2001); Newell,

  ¶¶ 21-22.

                             B. Discussion

                             1. Preservation

¶ 13   We start by rejecting the prosecution’s contention that this

  issue is unpreserved and is therefore subject only to plain error

  review. Defense counsel preserved the issue by tendering an

  affirmative defense jury instruction for “deadly physical force in

  defense of person” as to the first degree and second degree murder

  charges. When tendering the self-defense instruction, counsel

  argued that there was sufficient evidence to support such an

  instruction, and that even if such evidence contradicted defendant’s

  simultaneous claim that the shooting was accidental, he still had

  the right to a self-defense instruction. The court rejected the

  instruction, reasoning that defendant’s testimony that he did not

  intend to pull the trigger was incompatible with the giving of an

  affirmative defense instruction for self-defense. We conclude that

  counsel’s tendering of the instruction was sufficient to preserve the


                                    5
  issue for appeal. See Newell, ¶ 19 (“Because defendant requested

  the instruction, any error in failing to give the instruction requires

  reversal unless the error did not affect defendant’s substantial

  rights.”).

                        2. The Self-Defense Statute

¶ 14    Defendant was convicted of second degree murder, which is

  defined as “knowingly caus[ing] the death of a person.”

  § 18-3-103(1). Self-defense is an affirmative defense to second

  degree murder. Pickering, 276 P.3d at 555-56.

¶ 15    Colorado’s self-defense statute, section 18-1-704(1), provides:

               [A] person is justified in using physical force
               upon another person in order to defend
               himself . . . from what he reasonably believes
               to be the use or imminent use of unlawful
               physical force by that other person, and he
               may use a degree of force which he reasonably
               believes to be necessary for that purpose.

  The statute clarifies that “[d]eadly physical force may be used only if

  a person reasonably believes a lesser degree of force is inadequate

  and . . . [t]he actor has reasonable ground to believe, and does

  believe, that he . . . is in imminent danger of being killed or of

  receiving great bodily injury.” § 18-1-704(2)(a).




                                      6
           3. Evidence Supporting Self-Defense Instruction

¶ 16   Viewing the evidence in the light most favorable to defendant

  for this purpose, see Cassels, 92 P.3d at 955, we conclude that

  there was at least a scintilla of evidence presented that would

  support a self-defense instruction, see Saavedra-Rodriguez, 971

  P.2d at 228. That evidence included the following testimony of

  defendant and others:

           Several hours before the shooting, the victim and

            defendant were wrestling, and the victim put defendant

            in a headlock, during which defendant could not breathe.

            A witness said that defendant turned “red” while in the

            headlock.

           Later that day, after an evening of drinking, the two got

            into an altercation in defendant’s apartment during

            which defendant accused the victim of stealing

            defendant’s pants, containing about $1800 in cash. The

            victim swung at defendant and dragged him into the

            kitchen by his neck. With his arms around defendant’s

            neck, the victim bent defendant over the stove.

            Defendant fought back, but ultimately they landed on the

                                    7
  floor, with the victim’s hands still around defendant’s

  neck, causing him to lose consciousness.

 Defendant later woke up in significant pain and ordered

  the victim to leave. The victim threatened defendant that

  he should “go back to sleep or I’ll put you to sleep.”

  Another struggle ensued during which the two landed on

  the living room television stand, breaking it.

 Defendant then retrieved his shotgun, at which time he

  felt “scared” and “helpless” because his brother and his

  dog were not around to protect him and help get the

  victim out of his apartment. Defendant “wanted the gun

  to stand between [the victim] and [himself to keep the

  victim] from fighting and hurting [defendant] physically

  any more.”

 Though the victim initially left when confronted with the

  gun, he returned, pounding on the door and demanding

  access to look for his cell phone. The victim pushed his

  way back into the apartment, but left again when

  defendant threatened to call the police.




                          8
 When defendant found the victim’s phone shortly

  thereafter, defendant ran out of the apartment, gun in

  hand, to return the phone to him. From ten feet away,

  defendant tossed the victim the phone, and the victim

  walked toward defendant.

 The victim then said, “Give me that gun. Fight me like a

  man. Let’s fight like men.” The victim moved toward

  defendant and reached for the gun. Defendant testified

  that he thought the victim was “going to take the gun

  and hurt me with it.” He also testified that he “didn’t

  expect the gun to go off.” Defendant pulled back and the

  gun discharged.

 A private security guard who arrived on the scene just

  after the shooting testified that defendant told him that

  he had been robbed and that “it was self-defense”

  (apparently referencing defendant’s situation).

 A police detective testified that, after the shooting, the

  detective handcuffed defendant, at which point defendant

  said, “Is this normal for this kind of case[,] being

  handcuffed for self-defense[?]”

                           9
            4. Application of Self-Defense Law to the Facts

¶ 17   The trial court concluded that defendant’s testimony that he

  had pulled the gun “up and away,” combined with the lack of

  evidence that defendant intended to pull the trigger, negated the

  availability of self-defense as a defense to the charges. According to

  the court, this was not “a situation where the defendant has

  admitted the commission of the elements of the charged act but

  seeks to justify, excuse, or mitigate the commission of that act.”

  The court relied on the 1992 Garcia case in rejecting the

  instruction. In that case, the supreme court held that the

  defendant could not claim that an intruder had stabbed the victim

  “and at the same time obtain an instruction based on the theory

  that [the defendant] stabbed [the victim] in the heat of passion.”

  826 P.2d at 1263-64.

¶ 18   We conclude that the trial court erred in its ruling by not

  following applicable supreme court precedents from Idrogo,

  Saavedra-Rodriguez, Vigil, Huffman, and Jabich.

¶ 19   In Idrogo, the court held that if there is any evidence in the

  record tending to establish self-defense, the court must instruct the

  jury on that defense. 818 P.2d at 754; see also Saavedra-Rodriguez


                                    10
  971 P.2d at 228 (mere “scintilla of evidence, or some evidence”

  supports giving a theory of defense instruction).

¶ 20   There was a sufficient legal basis and at least a scintilla of

  evidence that would have allowed the jury to credit defendant’s

  claim of self-defense. Given the previous fighting between the

  victim and defendant, the latter could have rationally perceived that

  he needed to be armed so that he could protect himself from the

  victim. Defendant’s testimony indicated that the threat to him from

  the victim was continuing. And his statements to the detective and

  the security guard indicating that “it was self-defense” could have

  prompted a properly instructed jury to acquit him based on a self-

  defense theory. The fact that he also claimed an accidental

  shooting was, under the circumstances he described, not so

  inconsistent with self-defense as to deprive him of the right to have

  the jury instructed on self-defense.

¶ 21   The trial evidence could have allowed the jury to rationally find

  that defendant either shot the victim accidentally or that the gun

  discharged as a result of his holding it in self-defense, and either

  theory could have properly resulted in an acquittal.




                                    11
¶ 22   We find support for this view in Vigil, 143 Colo. at 334, 353

  P.2d at 85. There, the defendant claimed that a gun he was holding

  to defend himself against the victim accidentally discharged and

  killed the victim. The supreme court held that the trial court

  should have granted his request for a self-defense instruction,

  stating that “[t]he right of self-defense is a natural right and is

  based on the natural law of self-preservation.” Id. The supreme

  court observed that where a situation begins with an argument, but

  escalates to the point where a person is “subjected to or threatened

  with, such physical violence that he might have to resort to

  justifiable homicide to protect his person,” he is not “deprive[d] . . .

  of the right of self-defense.” Id.; see also Huffman, 96 Colo. at 83-

  84, 39 P.2d at 789-90 (Where the defendant asserted “three kindred

  theories of defense: Accident, self-defense, and a mental condition

  resulting from the blows upon his head during the encounter” with

  the shooting victim, it was reversible error for the court to decline to

  instruct the jury on these theories.); Jabich, 58 Colo. at 179, 143 P.

  at 1094 (The trial court should have instructed the jury on self-

  defense where the defendant asserted that he may have accidentally

  caused the victim’s death, ruling that, “[n]o matter how improbable


                                     12
  or unreasonable the contention, [the] defendant was entitled to an

  appropriate instruction upon the hypothesis that it might be true.”).

¶ 23   In ruling that the self-defense instruction would not be given

  here, the trial court said, “[T]he basis for my decision [not to give

  the instruction] is [that defendant] affirmatively has testified that he

  pulled the firearm up and away and the gun discharged.” The court

  noted that the referenced testimony — combined with the lack of

  evidence that defendant either intended to pull the trigger or

  thought that it was necessary to pull the trigger to defend himself —

  negated the availability of self-defense as a defense to the charges.

¶ 24   The trial court’s ruling did not give adequate deference to

  defendant’s constitutional right to assert that he was acting in self-

  defense, and to have the jury instructed accordingly. See Colo.

  Const. art. II, § 3 (recognizing inalienable right of persons to defend

  their lives); Idrogo, 818 P.2d at 754 (where any evidence tends to

  establish defense of self-defense, court must instruct jury with

  respect to that defense).

¶ 25   The holding of the 1992 Garcia case does not persuade us to

  adopt the People’s theory that defendant is prevented by judicial




                                     13
  estoppel from asserting inconsistent theories of self-defense and

  accident.

¶ 26   Most importantly, that case was not a self-defense case, and it

  did not implicate the right of a person to defend his or her life that

  is established by article II, section 3 of the Colorado Constitution.

¶ 27   And unlike in that case, the basis for the instruction here did

  not depend on rejection of defendant’s version of events in sworn

  testimony. Cf. 826 P.2d at 1263 (holding that the defendant could

  not back away from a binding judicial admission and rely on “a

  statement that he has, under oath, declared to be false in order to

  obtain” the requested alternative instruction).

¶ 28   This case is more like Brown, 239 P.3d at 768-69, where the

  defendant was charged with attempted first degree murder and

  consistently maintained his innocence. Brown’s defense counsel,

  who had not elicited any contrary testimony from the defendant,

  requested an instruction on attempted second degree murder — a

  lesser included offense that depended on a theory inconsistent with

  the defendant’s claim of innocence. Id. at 768. The supreme court

  concluded that the trial court erred by declining to give the

  instruction. Id. at 769.


                                    14
¶ 29   In so ruling, the supreme court distinguished the 1992 Garcia

  case, saying that the holding in the earlier case turned “not on the

  inconsistency of the requested instruction, but on the inconsistency

  of the defendant’s sworn testimony.” Id. at 768. The supreme court

  decided that under the circumstances of Brown’s case, the principal

  policy arguments for denying the defendant his requested

  instruction — namely, “that allowing an inconsistent instruction

  would be contrary to ‘honesty and good faith’ and/or encourage

  perjury” — were “substantially mitigated.” Id. at 768-69.

¶ 30   Here, the trial court viewed defendant’s assertions of both self-

  defense and accident as inconsistent. But, as we will discuss, any

  logical inconsistency between these concepts did not necessarily

  involve perjury or reneging on a judicial admission, as in the 1992

  Garcia case, and should not have been invoked to preclude

  defendant’s right to assert self-defense.

¶ 31   Given the evidence admitted at defendant’s trial, the jury

  could have found that he was holding the gun in self-defense but

  that it discharged accidentally. Much of the evidence supporting

  self-defense consisted of defendant’s own testimony, and some of it

  was contradicted by other witnesses. But even “highly improbable


                                    15
  testimony by the defendant” may provide the scintilla of evidence

  necessary to support a self-defense instruction. Garcia, 28 P.3d at

  347.

¶ 32     The supreme court’s recent decision in Naranjo does not

  change our analysis. In that case, a defendant who was charged

  with felony menacing for pointing a gun at a fellow driver contended

  that the jury should have received a lesser nonincluded offense

  instruction for the crime of disorderly conduct. Naranjo, ¶ 1.

  Applying the logic of the 1992 Garcia case, 826 P.2d 1259, the court

  rejected that assertion. Naranjo, ¶ 28. It reasoned that the jury

  could not rationally acquit the defendant of menacing while

  simultaneously convicting him of disorderly conduct, because

  conviction of the latter would have required the handling of the gun

  “in a manner calculated to alarm,” § 18-9-106(1)(f), C.R.S. 2017, a

  scenario that was contradicted by the defendant’s testimony that he

  was only carefully putting his gun in the glove box. Naranjo, ¶ 27.

  The jury in that case could only convict the defendant of the lesser

  offense if it disbelieved his own contrary testimony, a situation

  disapproved by the court in the 1992 Garcia case. Naranjo, ¶ 28

  (citing Garcia, 826 P.2d at 1263); see also People v. York, 897 P.2d


                                    16
  848, 850 (Colo. App. 1994) (concluding that where the defendant

  testified he was not present when the victim was stabbed, he was

  precluded from requesting jury instructions on heat of passion,

  defense of self, and defense of others).

¶ 33   Unlike Naranjo, this case does not involve the propriety of

  instructing a jury on a lesser nonincluded offense. Rather, it

  implicates defendant’s constitutional right to an accurate

  instruction on his theory of defense, and his entitlement to have the

  jury determine the truth of that theory. See People v. Tardif, 2017

  COA 136, ¶ 34.

¶ 34   A lesser nonincluded offense instruction must be given only if

  a “rational evidentiary basis exists to simultaneously acquit [a

  defendant] of the charged offense and convict him of the lesser

  offense,” Naranjo, ¶ 15 (emphasis added). The far more significant

  right of a defendant to a self-defense instruction, on the other hand,

  is demonstrated by the low bar set for when it must be given: a

  mere scintilla of evidence. See Saavedra-Rodriguez, 971 P.2d at

  228; see also Garcia, 28 P.3d at 347 (scintilla of evidence may

  consist “of highly improbable testimony by the defendant”).




                                    17
¶ 35   Also unlike in the 1992 Garcia case and Naranjo case, the

  availability of the requested instruction here did not depend for its

  validity on rejection of defendant’s version of events in his own

  sworn testimony. See Naranjo, ¶¶ 27-28; Garcia, 826 P.2d at 1263.

  Vigil indicates that a person can both hold a firearm in self-defense

  and still kill a victim accidentally, and that in such circumstances,

  the jury must be instructed on self-defense. See 143 Colo. at 334,

  353 P.2d at 85.

¶ 36   Where, as here, a defendant claiming both accident and self-

  defense has presented at least a scintilla of evidence supporting

  self-defense, the defendant is entitled to such an instruction. There

  was at least some evidence indicating that defendant acted in self-

  defense, even though he maintains that the actual firing of the

  weapon was unintentional.

¶ 37   Requiring a defendant to concede intent so that he may obtain

  a self-defense instruction would relieve the prosecution of its

  burden of proving all of the elements of the crime, thus depriving

  the defendant of his constitutional right to a trial by jury. See

  Tardif, ¶ 34. Such a scenario would ensnare any defendant

  claiming an accidental shooting in the course of self-defense in a


                                    18
  catch-22. He would either have to admit to pulling the trigger and

  seek a self-defense instruction, or abandon his right to assert self-

  defense, even though there was some evidence suggesting that his

  actions, including a possible accidental discharge of the gun, were

  in the course of self-defense.

¶ 38   A division of this court has recognized the need to instruct the

  jury on self-defense where a defendant has asserted a “hybrid”

  defense incorporating both accident and self-defense. In People v.

  Lee, 30 P.3d 686, 690 (Colo. App. 2000), the defendant conceded

  “that the revised instruction adequately included the substance of

  his self-defense theory . . . , but assert[ed] that it failed to include

  his theory that the shooting was accidental.” The division

  concluded that, “[b]ecause the evidence presented support[ed] each

  theory to some extent, the trial court had an affirmative duty to

  instruct the jury on both aspects of the defense.” Id. The division

  nevertheless determined that the trial court did not err because the

  instructions that were given there “adequately informed the jury

  that, to support a conviction for second degree murder, defendant’s

  conduct causing the death of the victim could not have been

  unintended or accidental.” Id.


                                      19
¶ 39   Here, we face the opposite problem, because the trial court

  refused to instruct the jury on self-defense. It should have so

  instructed the jury.

¶ 40   This case is similar to People v. Brooks, 474 N.E.2d 1287 (Ill.

  App. Ct. 1985), where the defendant testified that his shooting of

  the victim was accidental. Because the evidence there would have

  also supported a finding that the defendant was acting in self-

  defense when the gun was fired, the appellate court held that the

  trial court was required to instruct the jury on self-defense. See id.

  at 1290 (“The fact that the defendant may have denied any

  intention to commit the act is . . . irrelevant. And the courts have

  indicated that it is perfectly proper to charge the jury with

  inconsistent defenses so long as the facts and nature of the case

  support the feasibility of either.”) (citations omitted); see also State

  v. Miller, 739 A.2d 1264, 1266 (Conn. App. Ct. 1999) (“[W]e reject

  the state’s argument that the defendant must admit that he

  intended to kill the victim to assert the justification of self-

  defense. . . . ‘[T]o compel a defendant to admit guilt in order to

  invoke a defense effectively relieves the prosecution of proving his

  guilt beyond a reasonable doubt and frustrates the assertion of the


                                      20
  defense itself and undermines its policy.’” (quoting State v. Folson,

  525 A.2d 126, 130 (Conn. App. Ct. 1987))); State v. Wooten, 498

  S.W.2d 562, 563 (Mo. 1973) (where the defendant’s evidence

  indicated that a gun went off while he and the deceased struggled

  for possession of it, the defendant was entitled to have the jury

  instructed on both self-defense and accidental homicide); State v.

  McCaskill, 387 S.E.2d 268, 269 (S.C. 1990) (“Where a defendant

  claims that he armed himself in self-defense, while also claiming

  that the actual shooting was accidental, this combination of events

  can ‘place the shooting in the context of self-defense.’”) (citation

  omitted).

¶ 41   Defendant’s request for a self-defense instruction had to be

  honored because the evidence at trial would have allowed the jury

  to find either (1) that defendant killed the victim accidentally or (2)

  that there was an “imminent danger of [defendant] being killed or of

  receiving great bodily injury,” § 18-1-704(1), (2)(a), that might have

  justified his acting in self-defense.

¶ 42   We recognize that the framework of the affirmative defense of

  self-defense is not wholly compatible with defendant’s claim that

  the shotgun discharged unintentionally. This is because an


                                     21
  affirmative defense “admit[s] the defendant’s commission of the

  elements of the charged act, but seek[s] to justify, excuse, or

  mitigate the commission of the act,” People v. McClelland, 2015 COA

  1, ¶ 17. So by requesting a self-defense instruction, a defendant

  ordinarily would concede that he “knowingly cause[d] the death of a

  person,” § 18-3-103(1), but would seek to justify it because he acted

  in self-defense. “[T]he affirmative defense effectively becomes an

  additional element, and the trial court must instruct the jury that

  the prosecution bears the burden of proving beyond a reasonable

  doubt that the affirmative defense is inapplicable.” Pickering, 276

  P.3d at 555.

¶ 43   While the jury would necessarily have to first find that

  defendant “knowingly” caused the victim’s death in order to then

  look to the self-defense instruction to excuse defendant’s actions,

  see McClelland, ¶ 17, this would not preclude defendant from also

  asserting a somewhat inconsistent theory of defense based on the

  unintentional discharge of the gun. Cf. People v. Opana, 2017 CO

  56, ¶¶ 10, 14 (concluding that the term “deadly physical force,”

  which is defined as “force, the intended, natural, and probable

  consequence of which is to produce death, and which does, in fact,


                                    22
  produce death,” § 18-1-901(3)(d), C.R.S. 2017, as used in the self-

  defense statute, does not require the user of that force to have a

  subjective intent; instead “intended” conveys the notion of an

  objective likelihood that such a result will occur).

¶ 44   We conclude that the error in not giving the self-defense

  instruction warrants reversal of the conviction. See Idrogo, 818

  P.2d at 756 (“A trial court’s failure to properly instruct a jury on the

  applicable law of self-defense deprives the defendant of the right to

  an acquittal on the ground of self-defense if the jury could have had

  a reasonable doubt as to whether the defendant acted in necessary

  self-defense.”); Newell, ¶ 20 (if there is any evidence in the record to

  support a self-defense instruction, a court’s refusal to give one

  deprives the accused of the constitutional right to trial by jury).

                   III. Issues that May Arise on Retrial

¶ 45   Because the following issues may arise on retrial, we address

  them.

              A. Defendant’s Statements While in Custody

¶ 46   Defendant argues that the trial court erred by declining to

  suppress statements he made to both a private security guard and

  the police following his apprehension. He contends that the


                                     23
  statements were either involuntary or admitted in contravention of

  Miranda v. Arizona, 384 U.S. 436 (1966). While we conclude that

  the statements complied with Miranda, because the court did not

  make distinct findings as to whether the statements were

  involuntary, on retrial, the trial court must hold an evidentiary

  hearing to make such findings.

                               1. Miranda

¶ 47   Miranda protects a suspect’s right against self-incrimination

  by prohibiting the introduction of statements procured by custodial

  interrogation, unless the police have first given an advisement of

  the suspect’s rights. 384 U.S. at 444; People v. Matheny, 46 P.3d

  453, 462 (Colo. 2002). Miranda’s safeguards apply to a statement

  only if (1) the suspect was in custody at the time the statement was

  made, People v. Begay, 2014 CO 41, ¶ 13; and (2) the statement

  was the product of an interrogation, People v. Madrid, 179 P.3d

  1010, 1014 (Colo. 2008). The parties do not dispute that defendant

  was in custody and had not yet been advised of his Miranda rights

  when he made the contested statements.

¶ 48   A statement is in response to interrogation if the suspect was

  “subjected to either express questioning or its functional


                                    24
  equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980).

  Therefore, interrogation includes “any words or actions on the part

  of the police . . . that the police should know are reasonably likely to

  elicit an incriminating response.” Id. at 301. We evaluate the

  totality of the circumstances in determining whether an

  interrogation occurred, focusing on

             whether the officer reasonably should have
             known that the officer’s words or actions
             would cause the suspect to perceive that he or
             she was being interrogated, whether those
             words or actions were calculated to elicit
             incriminating statements, and whether in light
             of the interrogation environment the police
             compelled the incriminating statements.

  People v. Bonilla-Barraza, 209 P.3d 1090, 1094 (Colo. 2009).

  However, Miranda does not prohibit the use of a suspect’s

  “volunteered, non-compelled statements.” People v. Gonzales, 987

  P.2d 239, 241 (Colo. 1999); see also People v. Wood, 135 P.3d 744,

  752 (Colo. 2006) (“A defendant’s spontaneous utterances will not be

  excluded where there is no interrogation.”).

¶ 49   Whether a custodial interrogation occurred is a mixed

  question of law and fact. People v. Barraza, 2013 CO 20, ¶ 15.

  While we defer to the trial court’s findings of historical fact and will



                                     25
  not overturn them if they are supported by the record, “we review de

  novo the legal question whether those facts, taken together,

  establish that custodial interrogation occurred.” Id.

¶ 50   Our review of the statements that defendant made while in

  custody leads us to conclude that the trial court did not err in

  declining to suppress the statements under Miranda because they

  were (1) made to a private security guard and not subject to

  Miranda; (2) based on Miranda’s public safety exception; or (3)

  volunteered and therefore not the product on an interrogation.

                a. Statements to Private Security Guard

¶ 51   Immediately after the shooting, defendant was apprehended by

  a private security guard, who held defendant at gunpoint, ordered

  him to lie prone on the ground, and called 911. The guard testified

  that defendant then made numerous statements. Defendant asked

  about the safety and well-being of his dog, said that he had been

  robbed, and said that there was a person whom he had shot and

  that he had tried to help that person. He also said that he had

  acted in self-defense. During the 911 call, the guard relayed the

  address of the incident and defendant’s last name to the operator.




                                    26
  After the operator requested defendant’s date of birth, the guard got

  that information from defendant and relayed it to the operator.

¶ 52   Miranda generally does not “apply to evidence obtained by

  private parties or evidence resulting from the conduct of private

  parties,” unless the private party was acting as an “agent[] of the

  police by virtue of their suggestion, order, request, or participation

  for purposes of criminal investigation,” as indicated by a totality of

  the circumstances. People v. Lopez, 946 P.2d 478, 481-82 (Colo.

  App. 1997). As defendant concedes, the security guard was

  privately employed and did not work for the police. Therefore, the

  security guard was a private party, and in general, any statements

  that defendant made to him were not subject to Miranda’s

  restrictions. See id.

¶ 53   We conclude that the totality of the circumstances indicates

  that the security guard was not acting as an agent of the police “for

  purposes of criminal investigation.” Id. The security guard was

  responding to an immediate public safety issue at the apartment

  complex, and even when relaying information to the 911 operator,

  he was not acting in furtherance of a criminal investigation, but

  was instead helping coordinate a response to an emergency


                                    27
  situation and ensuring that defendant did not leave the scene. See

  People v. Chastain, 733 P.2d 1206, 1214 (Colo. 1987) (Where a

  hospital security guard apprehended and interrogated the

  defendants, there was no Miranda violation because the guard

  “received no compensation or remuneration from any public agency,

  nor did [the guard] act at the direction of the [police]. The fact that

  [the guard] contacted police officers after he apprehended the

  [defendants] is not sufficient to make him an agent of the police

  department.”).

¶ 54   We conclude that admission of defendant’s statements to the

  security guard is not precluded by Miranda.

                     b. Statements to Police Officers

¶ 55   The court admitted the following statements made by

  defendant to police officers after his arrest:

           After an officer handcuffed him, defendant asked

             questions about his dog and commented that the victim

             had been “fucking with my dog.”

           When asked if he was injured, defendant said “no,” but

             later said that he had been “hit in the face.”




                                     28
 An officer repeatedly asked defendant if there was anyone

  else in the residence, a question that defendant initially

  ignored. Eventually, after the officer cursed at defendant,

  he answered the question, saying that he believed

  somebody else was in the house but he did not know the

  person. The officer testified that he asked this question

  due to his concern that there could have been other

  victims or suspects in the vicinity.

 Defendant mentioned to the officer that he had a “large

  dog.”

 Following a protective sweep of the residence, the officers

  placed defendant in a patrol car, at which point

  defendant refused to answer questions about his name

  and date of birth, saying that he did not want to talk.

  However, a few minutes later, defendant said, “I just need

  somebody to talk to me.” The officer did not ask him any

  more questions, but defendant asserted that an intruder

  came into his residence, that defendant was “only trying

  to defend himself,” and that defendant “tried to save” the

  victim.

                         29
           During the booking process at the jail, defendant, in

            response to being told to put his hands behind his back

            for handcuffing, asked if it was “normal for this kind of

            case . . . [to be] handcuffed for self-defense.”

¶ 56   We conclude that defendant’s comments to the officers either

  were excluded from Miranda’s protections or were volunteered

  statements that were not the product of interrogation.

¶ 57   The public safety “exception to the Miranda rule permits

  custodial interrogation directed to obtaining information important

  to protect the safety of officers engaged in immediate, on-scene

  investigation of a crime.” People v. Requejo, 919 P.2d 874, 879

  (Colo. App. 1996). Defendant’s answers to questions regarding the

  extent of his injuries and whether there was anyone else in the

  residence were not excluded by Miranda because the officers,

  having just arrived on the scene, had a legitimate concern that

  there could be other armed suspects or injured victims in the

  vicinity. The officers were justified in trying to determine whether

  defendant was severely injured or needed other medical attention.

  See People v. Janis, 2016 COA 69, ¶ 54 (cert. granted on other

  grounds Feb. 21, 2017).


                                    30
¶ 58   The record supports the trial court’s finding that defendant’s

  other statements were volunteered and therefore did not warrant

  exclusion under Miranda as the product of interrogation. When

  these statements were made, there were not “any words or actions

  on the part of the police . . . that the police should [have known

  would be] reasonably likely to elicit an incriminating response,”

  Innis, 446 U.S. at 301, and therefore the use of such “volunteered,

  non-compelled statements” was not prohibited by Miranda,

  Gonzales, 987 P.2d at 241.

¶ 59   The record indicates that defendant’s repeated statements

  about his dog were spontaneous, as were his comments in the

  patrol car that he “just need[ed] somebody to talk to” him, “an

  intruder was trying to come into [his] residence,” he “was only

  trying to defend” himself, and he “tried to save him” (apparently

  referencing the victim). When defendant made the statements in

  the patrol car, the officer had not spoken to him in a few minutes,

  and during the officer’s earlier questioning of defendant, he had

  only asked questions about basic identifying information such as

  defendant’s name and date of birth, which were not questions

  intended to elicit incriminating information about the shooting.


                                    31
¶ 60     Consequently, the trial court did not err in declining to

  suppress defendant’s statements to the police based on Miranda.

                              2. Voluntariness

¶ 61     While the trial court conducted a full analysis of whether

  defendant’s statements were admissible under Miranda, it did not

  make the required, separate determination of whether his

  statements to the police warranted suppression because of

  defendant’s assertion that the statements were involuntary. On

  remand, it must do this analysis.

¶ 62     Due process dictates that “a defendant’s statements must be

  made voluntarily in order to be admissible into evidence,” Effland v.

  People, 240 P.3d 868, 877 (Colo. 2010), meaning that the “evidence

  [must be] independently and freely secured without officials

  resorting to coercion,” People v. Zadran, 2013 CO 69M, ¶ 9.

  Involuntary statements, whether inculpatory or exculpatory, are

  inadmissible for any purpose. Effland, 240 P.3d at 877; People v.

  Humphrey, 132 P.3d 352, 360 (Colo. 2006). Compliance with

  Miranda alone is not determinative of whether a statement was

  voluntarily given and therefore admissible. Humphrey, 132 P.3d at

  360.


                                     32
¶ 63   Coercive conduct is a predicate to a determination that a

  defendant’s response is not voluntary, id., and in evaluating

  whether a suspect’s statements were involuntary, the court should

  consider the totality of the circumstances and weigh the varying

  factors endorsed by the supreme court in People v. Medina, 25 P.3d

  1216, 1222 (Colo. 2001).

¶ 64   It is critical that a trial court make findings regarding

  voluntariness on the record, People v. Gennings, 808 P.2d 839, 844

  (Colo. 1991), and “[w]here the trial court has failed to rule on the

  [issue of] voluntariness,” the appellate court should remand for an

  evidentiary hearing on the issue, Hunter v. People, 655 P.2d 374,

  376 (Colo. 1982).

¶ 65   Even though the court found that certain statements were

  “volunteered,” and therefore not the product of police interrogation

  for Miranda purposes, it still was required to make separate

  findings as to whether the statements were voluntary in accordance

  with defendant’s due process rights. See Wood, 135 P.3d at 748

  (“Statements may be suppressed when the defendant does not

  make a statement voluntarily or when the statement is obtained in




                                    33
  violation of Miranda. Although these inquiries are similar, they are

  distinct and independent grounds for suppression.”).

¶ 66   A due process voluntariness inquiry is distinct from an inquiry

  into whether a defendant’s statement was volunteered under

  Miranda. Whether a statement was volunteered for purposes of a

  Miranda inquiry is closely related to the question of whether a

  statement was the product of an interrogation because there were

  “words or actions on the part of the police . . . that the police should

  [have known were] reasonably likely to elicit an incriminating

  response.” Innis, 446 U.S. at 300-01; see also Wood, 135 P.3d at

  752 (“A defendant’s spontaneous utterances will not be excluded

  [under Miranda] where there is no interrogation.”). A due process

  voluntariness analysis instead focuses on whether a statement was

  “the product of an essentially free and unconstrained choice by its

  maker” and was thus free from coercion. Effland, 240 P.3d at 877

  (quoting People v. Raffaelli, 647 P.2d 230, 234 (Colo. 1982)). “The

  ultimate test of involuntariness is whether a defendant’s will has

  been overborne.” Wood, 135 P.3d at 748.

¶ 67   On remand, the trial court must conduct an evidentiary

  hearing to determine whether defendant’s statements to police


                                    34
  officers were voluntary. “The prosecution must establish by a

  preponderance of the evidence that the statements were made

  voluntarily under the totality of the circumstances before those

  statements may be admitted into evidence.” Humphrey, 132 P.3d at

  360; see also Medina, 25 P.3d at 1222. If they were not voluntary,

  they may not be admitted at trial.

¶ 68   But his statements to the security guard do not need to be

  reexamined, because they were made to a private party. Even “[t]he

  most outrageous behavior by a private party seeking to secure

  evidence against a defendant does not make that evidence

  inadmissible under the Due Process Clause.” Colorado v. Connelly,

  479 U.S. 157, 166 (1986). As a result, “coercive police activity is a

  necessary predicate to the finding that a confession is not

  ‘voluntary’ within the meaning of the Due Process Clause.” Id. at

  167. Because the security guard was acting as a private person,

  the Due Process Clause did not apply to his behavior.

                          B. Photos of Marijuana

¶ 69   Defendant argues that the trial court erred by admitting

  photographs showing a large amount of marijuana in his




                                    35
  apartment. We conclude that the court erred in admitting the

  photos, and that they should not be admitted on retrial.

                           1. Legal Standards

¶ 70   We review a trial court’s evidentiary rulings for an abuse of

  discretion. People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002). A

  court abuses its discretion when its ruling is (1) based on an

  erroneous understanding or application of the law or (2) manifestly

  arbitrary, unreasonable, or unfair. People v. Esparza-Treto, 282

  P.3d 471, 480 (Colo. App. 2011).

¶ 71   Subject to certain exclusions, evidence is admissible if it is

  relevant, meaning that the evidence has “any tendency to make the

  existence of any fact that is of consequence to the determination of

  the action more probable or less probable.” CRE 401; see CRE 402.

¶ 72   Even if relevant, though, evidence is subject to exclusion

  under CRE 403 if its probative value is substantially outweighed by

  the danger of unfair prejudice. See Yusem v. People, 210 P.3d 458,

  464-65 (Colo. 2009). When reviewing evidence under CRE 403, we

  must assign the evidence its maximum probative value and

  minimum unfair prejudice. People v. Nuanez, 973 P.2d 1260, 1263

  (Colo. 1999).


                                     36
                              2. Discussion

¶ 73   The court admitted the photos over defendant’s objection. One

  photo showed several growing plants. The other showed a

  significant amount of what appear to be drying marijuana leaves.

  The court reasoned that the photos were relevant to defendant’s

  credibility in reporting that he had been acting in self-defense

  because he had been robbed.

¶ 74   We reject the People’s contention that the photos were

  admissible as res gestae evidence. Res gestae evidence is evidence

  that is “linked in time and circumstances with the charged crime, or

  forms an integral and natural part of an account of the crime, or is

  necessary to complete the story of the crime for the jury.” People v.

  Quintana, 882 P.2d 1366, 1373 (Colo. 1994) (quoting United States

  v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985)). There was no

  indication that the marijuana played any part in the events leading

  up to the shooting, and the photos therefore were not admissible as

  res gestae evidence.

¶ 75   We conclude that any arguably probative value the photos

  might have had was substantially outweighed by the danger of

  unfair prejudice from showing a large amount of marijuana, and


                                    37
  that they were subject to exclusion under CRE 403. The photos

  leave the impression that defendant may have been conducting a

  grow operation in the apartment, and they could have caused the

  jury to view him unfavorably.

¶ 76   Defendant never asserted that the victim had stolen any

  marijuana; instead he claimed that the victim had taken his pants,

  which he claimed had contained $1800 in cash. Contrary to the

  People’s argument, the fact that some items of value were not stolen

  has no tendency to prove whether other valuable items might have

  been stolen.

¶ 77   Because the potential for unfair prejudice substantially

  outweighed the probative value of this evidence, it should have been

  excluded under CRE 403. On retrial, these photos should not be

  admitted into evidence.

                 IV. An Issue Unlikely to Arise on Retrial

¶ 78   Defendant finally contends that the trial court committed plain

  error by failing to administer an oath or affirmation to the court

  interpreters as required by CRE 604. We decline to address this

  contention because it is unlikely to arise on retrial.




                                     38
                             V. Conclusion

¶ 79   The judgment of conviction is reversed, and the case is

  remanded for a new trial. On remand, as discussed in Part III.A,

  the court must conduct an evidentiary hearing on the voluntariness

  and ultimate admissibility of defendant’s statements to the police

  officers, and, as discussed in Part III.B, photos depicting marijuana

  should be excluded from evidence.

       JUDGE HARRIS concurs.

       JUDGE BERNARD concurs in part and dissents in part.




                                   39
       JUDGE BERNARD, concurring in part and dissenting in part.

                             I.    Introduction

¶ 80   I respectfully dissent from the majority’s conclusion in Part II

  that the trial court erred when it declined defendant’s self-defense

  instruction.

¶ 81   I agree with the majority’s analysis in Part III.A that, although

  the statements defendant attacks on appeal satisfied the

  requirements of Miranda v. Arizona, 384 U.S. 436, 444 (1966), the

  trial court did not make adequate findings about whether the

  statements to the police officers were voluntary. So I would vacate

  defendant’s conviction and remand the case to the trial court to

  determine whether those statements were voluntary. If the court

  were to then decide that they were voluntary, it would reinstate

  defendant’s conviction for second degree murder. If the court were

  to decide that they were not, it would have to order a new trial.

¶ 82   I also agree that, on remand, the trial court should not

  evaluate whether defendant’s statements to the private security

  guard were voluntary. As the majority points out, the security

  guard was acting as a private person, so the Due Process Clause

  did not apply to his behavior.


                                    40
¶ 83    I likewise concur with the majority’s conclusion in Part III.B

  that the trial court should not have admitted the photographs of the

  marijuana grow operation. But I conclude that this evidence was

  harmless because the evidence in this case was overwhelming. So

  there was not a “reasonable probability that the error contributed to

  . . . defendant’s conviction.” Salcedo v. People, 999 P.2d 833, 841

  (Colo. 2000) (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo.

  1986)).

¶ 84    Last, I conclude that defendant waived his contention that the

  trial court erred when it did not swear in two interpreters. See

  United States v. Perez, 651 F.2d 268, 273 (5th Cir. 1981).

¶ 85    As a result of these various conclusions, I would, as indicated

  above, vacate defendant’s conviction and remand the case so that

  the trial court could determine whether defendant’s statements to

  the police officers were voluntary. I would otherwise affirm.

  II.   Defendant Was Not Entitled to a Self-Defense Instruction

¶ 86    Defendant testified at trial that the shooting was an accident.

  But he made a different claim immediately after the shooting.

  According to the testimony of the private security guard who

  apprehended him right after the shooting, defendant said that “he


                                    41
  was being robbed and it was self-defense.” And, when a police

  officer handcuffed him at police headquarters to transport him to

  jail, he asked, “Is this normal for this kind of case being handcuffed

  for self-defense[?]” In other words, he did not claim that the

  shooting was an accident shortly afterward; he said it was self-

  defense.

¶ 87   Defendant did not contest the accuracy of the security guard’s

  and the police officer’s testimony. In fact, trial counsel relied on it

  when he asked the court to instruct the jury about self-defense:

             I believe the jury could easily find and logically
             conclude that while [defendant] is now making
             a claim that his actions were an accident . . .
             his statements at the time that he acted in
             self-defense were the real reason that he fired
             the gun at [the victim] because he was acting
             in self-defense. . . . And when the jury is free
             to disregard whatever evidence they want and
             give credence to whatever they want, yes, there
             is a set of circumstances under which they
             could find that [defendant’s] conduct
             constituted self-defense.

  (Emphasis added.)

¶ 88   Trial counsel’s request recognized that defendant’s trial

  testimony and his statements to the two witnesses immediately

  after the shooting were inconsistent. The jury would have to (1)



                                     42
  “disregard” his trial testimony; and (2) “give credence” to “a set of

  circumstances,” which was the statements that he made

  immediately after the shooting; to (3) find that he had acted in self-

  defense.

¶ 89   But defendant’s contention is different on appeal: he asserts

  that, although he “armed himself in self-defense,” “the actual

  shooting was accidental.” In other words, he now submits that he

  had two intersecting and consistent defenses: accident and self-

  defense. But, as I have shown above, that was not his position at

  trial. Rather, based on his testimony, the testimony of the two

  witnesses to whom he spoke after the shooting, and trial counsel’s

  statements about why the court should give a self-defense

  instruction, defendant provided inconsistent statements about one

  event: why the shotgun fired.

¶ 90   The difference between defendant’s trial and appellate

  contentions has two effects, one minor and one major.

¶ 91   The minor effect has to do with the standard of review.

  Defendant’s appellate contention was not preserved because a

  “request was made in the trial court on grounds different from [the

  one] raised on appeal.” People v. Gee, 2015 COA 151, ¶ 45. So I


                                     43
  would review any error that the trial court may have made when

  rejecting defendant’s request for a self-defense instruction to see if

  it was plain. See, e.g., Hagos v. People, 2012 CO 63, ¶ 14. But this

  effect matters little because I conclude that the court did not err at

  all.

¶ 92     The major effect has to do with the way in which defendant

  has recharacterized his position at trial. If the defenses were

  consistent, defendant might not be boxed in by People v. Garcia,

  826 P.2d 1259, 1263 (Colo. 1992). But I think that defendant made

  it clear at trial that the defenses were inconsistent, so Garcia

  controls this case.

¶ 93     In Garcia, the defendant testified at trial that one of his

  statements to the police had been a lie. Id. In this statement, he

  admitted that he had stabbed the victim, although he claimed to

  have been very upset. Id. at 1261. This statement was the only

  evidence in the record that might have supported a heat-of-passion

  manslaughter instruction. Id. at 1262-63.

¶ 94     The defendant also testified at trial that he had not stabbed

  the victim; an intruder had. Id. at 1262. So his theory of defense




                                      44
  at trial was that he had not engaged in the conduct that had led to

  the victim’s death.

¶ 95    The supreme court decided that the defendant’s trial

  testimony that he had not stabbed the victim was a “binding

  judicial admission.” Id. at 1263. As is pertinent to this discussion,

  a judicial admission is a “formal, deliberate declaration which a

  party or his attorney makes in a judicial proceeding for the purpose

  of dispensing with proof of formal matters or of facts about which

  there is no real dispute.” Kempter v. Hurd, 713 P.2d 1274, 1279

  (Colo. 1986). Judicial admissions bind the party that makes them.

  Id.

¶ 96    After citing these principles from Kempter, Garcia discussed

  how, in cases like this one, a defendant’s trial testimony may

  become a binding judicial admission.

             [W]hen a party testifies to facts in regard to
             which he has special knowledge, such as his
             own motives, purposes, or knowledge or his
             reasons for acting as he did, the possibility
             that he may be honestly mistaken disappears.
             His testimony must be either true or
             deliberately false. To allow him to contradict
             his own testimony under these circumstances
             would not be “consistent with honesty and
             good faith.” Whether his statements be true or
             false, he will be bound by them, and possible


                                   45
               contradictions by other witnesses become
               immaterial. He will not be allowed to obtain a
               judgment based on a finding that he has
               perjured himself.

  Garcia, 826 P.2d at 1263 (quoting Harlow v. Laclair, 136 A. 128,

  130 (N.H. 1927)); see also People v. York, 897 P.2d 848, 850 (Colo.

  App. 1994) (“[A] defendant is not entitled to a theory-of-the-case

  jury instruction when he or she testifies under oath and utters

  binding judicial admissions which wholly contradict the tendered

  theory of defense instruction.”); cf. People v. Naranjo, 2017 CO 87,

  ¶ 28.

¶ 97      In Garcia, the defendant’s binding admission during his

  testimony had a significant effect. It led the supreme court to

  conclude that he could not “claim that an intruder stabbed [the

  victim] and at the same time obtain an instruction based on the

  theory that he stabbed [the victim] in the heat of passion.” Garcia,

  826 P.2d at 1263-64. The court reached this conclusion because

  “there was no evidence apart from the videotaped statement [to the

  police] to support a heat of passion manslaughter instruction.

  Manslaughter was not even [the defendant’s] theory of defense.” Id.

  at 1263.



                                     46
¶ 98    I recognize that defendant did not, during his trial testimony,

  expressly disavow the two statements that he made immediately

  after the shooting. In fact, he did not mention them. So, unlike the

  defendant in Garcia, he did not expressly declare under oath that

  his references to self-defense were false. See id.

¶ 99    But defendant disavowed the two statements just the same.

  By testifying that the shooting was an accident, he rejected the

  defense of self-defense, and he offered “his reasons for acting as he

  did.” Id. at 1263. “His testimony [therefore] must [have been] either

  true or deliberately false . . . [and] he will be bound by [it] . . . .” Id.

  And trial counsel, when discussing his request for a self-defense

  instruction, made clear that accident and self-defense were

  inconsistent defenses. See Kempter, 713 P.2d at 1279. I therefore

  conclude that defendant’s trial testimony and trial counsel’s

  statements to the court about the self-defense instruction combined

  to create a binding judicial admission.

¶ 100   Applying Garcia’s reasoning, in this case “there was no

  evidence [describing why the shotgun fired] apart from” defendant’s

  two statements immediately after the shooting “to support a [self-

  defense] instruction.” Garcia, 826 P.2d at 1263.


                                       47
¶ 101   And, as in Garcia, there was an inconsistency between

  defendant’s binding judicial admission and the instruction for

  which he asked. In Garcia, the defendant testified that someone

  else committed the crime, but he wanted a heat-of-passion

  manslaughter instruction. In this case, defendant testified that the

  shooting was an accident, but he wanted a self-defense instruction.

¶ 102   Brown v. People, 239 P.3d 764, 768 (Colo. 2010), does not

  compel a different conclusion. In that case, the defendant

  “consistently maintained his innocence during the initial police

  investigation and afterward at trial.” Id. The holding in Brown

  pivoted on that consistency: “[W]e hold that a criminal defendant

  who maintains his innocence may receive an inconsistent jury

  instruction on voluntary intoxication provided there is a rational

  basis for the instruction in the evidentiary record.” Id. at 770. In

  other words, Brown held that the simple fact of maintaining

  innocence does not preclude asking for an instruction that may

  suggest guilt on a lesser offense.

¶ 103   But Brown did not involve a defendant’s inconsistent

  statements, and this case does. Indeed, in Brown, “[t]he jury would

  have considered inconsistent defenses, but [the defendant] would not


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  have necessarily testified untruthfully.” Id. at 769 n.3 (quoting

  Mathews v. United States, 485 U.S. 58, 65 (1988)). In this case, by

  testifying that the shooting was an accident, defendant took self-

  defense off of the table. Garcia’s “rationale and thrust” was that “a

  defendant cannot testify under oath to certain facts” — in this case,

  accident — “that, by their nature, preclude any other defense” — in

  this case, self-defense — “and then seek a jury instruction based on

  contradictory evidence that would show his or her sworn testimony

  to be false.” York, 897 P.2d at 850.

¶ 104   Last, I respectfully submit that Vigil v. People, 143 Colo. 328,

  334, 353 P.2d 82, 85 (1960), and Jabich v. People, 58 Colo. 175,

  178-81,143 P. 1092, 1093-94 (1914), are irrelevant to the analysis

  in this case. Those decisions did not involve an inconsistency,

  based on a defendant’s binding judicial admission, between what

  the defendant said shortly after the crime and what he testified to at

  trial. It is my view that this case is controlled by such an

  inconsistency.




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