No. 98CA1944Colorado Court of Appeals.
November 9, 2000 Rehearing Denied January 4, 2001 Certiorari Denied July 2, 2001
Appeal from the District Court of the City and County of Denver, Honorable Richard T. Spriggs, Judge, No. 97CR4097.
JUDGMENT AFFIRMED
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Ken Salazar, Attorney General, Evan W. Jones, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
David S. Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Division IV Marquez and Casebolt, JJ., concur
Opinion by JUDGE TAUBMAN
[1] Defendant, Alexander Cardenas, appeals the judgment of conviction entered upon a jury verdict finding him guilty of second degree murder. We affirm. [2] On September 20, 1997, defendant called the police to report a homicide. When the police arrived, defendant admitted killing the victim, his long-time friend, following an evening of drinking, using drugs, and an altercation. The police read defendant an advisement form in accordance with the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and defendant initialed each paragraph. After the Miranda advisement, defendant made additional statements to the police, and four days later, he was charged with second degree murder. [3] At his first trial, the jury informed the court that it was deadlocked. Defendant moved for a mistrial. The court interviewed the foreperson, who told the court that the jury was divided as to whether he was guilty of second degree murder with heat of passion or whether defendant was not guilty. The trial court granted defendant’s motion for a mistrial. The second trial resulted in the conviction at issue here.I. Judgment of Acquittal Implied acquittal
[4] Defendant first contends that his constitutional protection against double jeopardy was violated by the second trial because the jury in the first trial had impliedly acquitted him of the second degree murder charge. We disagree.
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mitigator applies when death is “caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person . . . .” Section 18-3-103(3)(b), C.R.S. 2000.
[8] In order to consider the mitigating factor of heat of passion, the jury must first find that the elements of second degree murder have been shown by the evidence. [9] Here, upon learning in the first trial that the jury was deadlocked, the court engaged in the following dialogue with the jury foreperson:THE COURT: . . . What I would like to know is, is the jury at an impasse between guilty and not guilty, or is it an impasse between guilty and this heat of passion finding?
JUROR: Guilty and heat of passion finding — not guilty and heat of passion finding.
THE COURT: So on the one hand there is a block of jurors that are voting not guilty?
JUROR: That’s correct.
THE COURT: And the other’s relative to guilty —
[10] Thereafter, the court declared a mistrial, but denied defendant’s request that the jury render a verdict on second degree murder without heat of passion. [11] Defendant argues that, under the circumstances presented, the jury in the first trial impliedly acquitted him of second degree murder without heat of passion. We do not agree. [12] Here, the court instructed the jury on the provocation mitigator to second degree murder as follows: “If you find the defendant not guilty of murder in the second degree, you need not consider this instruction. If, however, you find the defendant guilty of murder in the second degree, you must then consider the issue of provocation.” [13] Defendant is mistaken in his contention that the jury unanimously found him not guilty of second degree murder without heat of passion because some jurors had found him guilty of second degree murder, but had moved on to consider the mitigating factor of heat of passion and the others believed he was not guilty. [14] Because no evidence was presented to the contrary, we presume that the jury followed the instructions of the court, see Peoplev. Ibarra, 849 P.2d 33 (Colo. 1993), and those jurors who believed defendant guilty of some offense first concluded he was guilty of second degree murder before they began to examine any mitigating factors. [15] Although defendant relies upon Ortiz v. District Court, supra, to support his contention that he was impliedly acquitted of second degree murder without heat of passion, that case is distinguishable. In Ortiz, the jury returned a verdict convicting the defendant of the lesser offense of felony menacing without addressing the greater offenses of second and third degree assault. The supreme court held that this was an implied acquittal of the greater offense. [16] Here, unlike in Ortiz and Green v. United States, supra, the jury in the first trial did not return any verdict. Thus, we hold that, without a verdict, there was no implied acquittal on the charge of second degree murder without heat of passion. Therefore, defendant’s constitutional protection against double jeopardy was not violated.JUROR: That’s correct, with provocation and heat of passion.
Motion for Judgment of Acquittal
[17] In a related contention, defendant next argues that the trial court erred by failing to grant his motion for judgment of acquittal based on the finding of the jurors in the first trial that he was not guilty of second degree murder without heat of passion. However, since there was no implied acquittal, the court’s rejection of defendant’s motion was appropriate.
Lesser Included Offenses
[18] Defendant contends that the trial court erred when it refused to instruct the jury on lesser included offenses of reckless manslaughter and criminally negligent homicide. We disagree.
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[19] Section 18-1-408(6), C.R.S. 2000, provides that: “The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” [20] It is proper for a trial court to deny a request to instruct the jury on a lesser included offense where the record does not present any evidence leading to a rational basis for acquitting a defendant of the greater offense and convicting him or her of the lesser offense. Peoplev. Price, 969 P.2d 766 (Colo.App. 1998). Such is the case here. [21] Although defendant argued that he acted in self-defense, he voluntarily confessed on two different occasions that he stabbed the victim to death. Furthermore, the record contains no evidence that he did not act knowingly, the requisite mental state for second degree murder. [22] Accordingly, we conclude that the trial court’s rejection of instructions on reckless manslaughter and criminally negligent homicide was not error.Hearsay Testimony
[23] Defendant next argues that the trial court erred by admitting hearsay testimony about the victim’s fear of defendant through the state of mind exception to the hearsay rule. We are not persuaded.
Collateral Attack
[31] Next, defendant argues that the trial court erred in finding that defendant’s collateral attack on a prior conviction was time barred, and that there was no justifiable excuse or excusable neglect. We disagree.
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given by the trial court. He maintains that he informed the trial court of this fact, but was ignored. Furthermore, he argues that his trial counsel did not inform him that there was a time limit for collateral attacks.
[33] However, defendant did not include a copy of the transcript of the providency hearing in the record. See C.A.R. 10(c); Westrac, Inc. v.Walker Field, 812 P.2d 714 (Colo.App. 1991). Thus, we cannot determine whether defendant’s allegations concerning the providency hearing were sufficient to establish excusable neglect or justifiable excuse, and we must presume that the finding of the trial court that defendant was time barred from raising a collateral attack on a prior conviction was supported by the evidence. See People v. Wells, 776 P.2d 386 (Colo. 1989). Accordingly, defendant has failed to meet the burden of showing error.Waiver of Miranda Rights
[34] Defendant next contends that the trial court erred in finding that statements he made to the police were voluntary, and that he waived hisMiranda rights voluntarily, knowingly, and intelligently. We disagree.
A.
[35] Defendant first contends that the statements he made to the police were not voluntary. We disagree.
review because it is a legal question. People v. Lopez, 946 P.2d 478
(Colo.App. 1997). [40] Here, defendant made two separate statements to the police. He made his first statement to the two police officers who arrived at his daughter’s house after defendant called the police and confessed. Before his confession, defendant was advised of his Miranda rights and waived them by initialing each paragraph of a Miranda advisement form. [41] That night, one of the officers wrote a statement from the notes he took during his questioning of defendant. This statement was admitted at trial. In the statement, the officer noted that defendant was intoxicated but not incoherent. [42] Defendant made his second statement to a detective during a videotaped interview at the police station. Again, defendant was advised of his Miranda rights and waived them. The detective then asked defendant if he was under the influence of narcotics, drugs, or alcohol. The defendant answered, “Yes.” [43] Although defendant was under the influence of drugs and alcohol when he made both statements, there is no evidence in the record that either statement was obtained through the use of threats or violence, direct or implied promises, or by the exertion of any improper influence. On the contrary, there is ample evidence to support the trial court’s finding that defendant’s statements were voluntary, including defendant’s own statement that his confession was voluntary. [44] Furthermore, there was no police misconduct. Rather, defendant, through his own volition, called the police to confess his crime. [45] Therefore, we conclude that the trial court did not err in finding that defendant’s statements were voluntary and, thus, admitting them into evidence.
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B.
[46] Defendant next contends that he did not waive his Miranda rights voluntarily, knowingly, or intelligently because he was intoxicated when he made both statements. We disagree.
DETECTIVE: Do you understand what’s going on, do you understand everything, do you . . .
DEFENDANT: . . . kind of.
DETECTIVE: Kind of?
DEFENDANT: I know I did somethin’ wrong. I hurt my buddy.
DETECTIVE: Do you understand it well enough that you want to talk to us about this?
DEFENDANT: Yeah. `Cause when I’m sober, I might not.
DETECTIVE: Okay. Are you making this statement voluntarily?
DEFENDANT: Yes.
[52] Later in the interview, defendant reaffirmed to the police that he understood what he was doing and the rights he had waived. [53] Upon considering the totality of the circumstances surrounding both sets of statements, we conclude that defendant’s intoxication did not prohibit him from understanding the nature of the rights he was waiving or from understanding the consequences of his waiver. We further conclude that defendant voluntarily, knowingly, and intelligently waived hisMiranda rights and that the trial court properly admitted these statements at trial.Theory of the Case Instruction
[54] Defendant finally contends that the trial court erred in failing to give his theory of the case instruction and in failing affirmatively to assist defendant in drafting such an instruction. We are not persuaded.
(Colo. 1987). [57] Here, defendant informed the court that he wished to give a theory of the case instruction, and the court stated that it would
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assist defendant in preparing such an instruction. However, the instructions that defendant tendered to the court were not proper theory of the case instructions, and the court rejected them. Defendant did not tender any further instructions to the court or ask for further assistance in drafting a theory of the case instruction.
[58] We perceive no error because the instructions defendant offered that were relevant to his theory of the case were encompassed in other instructions. See People v. Tippett, supra. [59] The judgment is affirmed. [60] JUDGE MARQUEZ and JUDGE CASEBOLT concur.