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
February 7, 2019
2019COA16
No. 14CA1958, People v. Ramirez — Criminal Law — Jury
Instructions — Instructional Errors; Criminal Procedure —
Plain Error
On remand from the supreme court, a division of the court of
appeals reconsiders a prior division’s opinion in this case in light of
the decision in People v. Rediger, 2018 CO 32. The division
concludes that defense counsel’s error in declining to object to an
inapplicable jury instruction amounted to a forfeiture, and not a
waiver, as described in the prior division’s opinion. Forfeiture is the
failure to make the timely assertion of a right, whereas waiver is the
intentional relinquishment of a known right or privilege. When, as
in this case, there is no indication that defense counsel recognized
the instructional error, and there is no rational, strategic reason for
the defense to want such an erroneous instruction to be given,
counsel’s failure to perceive and address the error is attributable to
neglect. In that instance, the instructional error has not been
waived, but merely forfeited.
Because the trial court’s failure to properly instruct the jury
on “deadly physical force” amounted to prejudicial plain error, the
division reverses the conviction of first degree assault and remands
for a new trial solely as to that charge. In all other respects, the
judgment is affirmed.
The dissent would affirm the judgment in its entirety because
the lawyer made a knowing and intentional waiver of any error in
the court’s self-defense instruction.
COLORADO COURT OF APPEALS 2019COA16
Court of Appeals No. 14CA1958
Weld County District Court Nos. 13CR875, 13CR890, 13CR1222 & 13CR1681
Honorable Timothy G. Kerns, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Joe Anthony Ramirez,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE TERRY
Martinez*, J., concurs
Webb, J., dissents
Announced February 7, 2019
Philip J. Weiser, Attorney General, Majid Yazdi, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Dayna Vise, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 This case has been remanded from the supreme court. People
v. Ramirez, (Colo. No. 18SC281, Dec. 3, 2018) (unpublished order).
That court has instructed us to reconsider the prior division’s
opinion in this case, People v. Ramirez (Colo. App. No. 14CA1958,
Mar. 8, 2018) (not published pursuant to C.A.R. 35(e)) (Ramirez I),
in light of the decision in People v. Rediger, 2018 CO 32.
¶2 Defendant, Joe Anthony Ramirez, was convicted in one trial of
charges stemming from four consolidated criminal cases. He was
found guilty of attempted first degree murder, attempted reckless
manslaughter, first degree assault with a deadly weapon, engaging
in a riot, illegal discharge of a firearm, theft by receiving, vehicular
eluding, and possession with intent to distribute a schedule II
controlled substance. The court imposed a combination of
consecutive and concurrent sentences totaling eighty-eight years.
¶3 In Ramirez I, the division affirmed his conviction of all charges.
After receiving the supreme court’s order of remand, we requested
supplemental briefing from the parties as to the application of
Rediger. That supreme court decision has potential effect only on
our disposition of the conviction for first degree assault. Thus,
1
none of the other convictions entered against Ramirez are affected
by the supreme court’s remand.
¶4 With respect to the first degree assault conviction, we now
conclude that defense counsel’s error in declining to object to an
inapplicable jury instruction amounted to a forfeiture, as described
in Rediger, ¶¶ 39-47, and not a waiver, as described in the prior
division’s opinion. Because we conclude that the error amounted to
prejudicial plain error, we reverse the conviction of first degree
assault and remand for a new trial solely as to that charge.
I. The Erroneous Instruction
¶5 Ramirez argues that the trial court improperly instructed the
jury as to “deadly physical force” in Instruction Number 29, which
related to the charges of first degree assault, second degree assault,
and third degree assault. (The jury found him guilty only of first
degree assault.)
¶6 The prior division concluded that Ramirez had waived his
contention of instructional error and therefore declined to consider
it. In accordance with the supreme court’s remand, we now
re-examine that ruling.
2
¶7 During the jury instruction conference, defense counsel said
that a scintilla of evidence was presented at trial that would support
the defense of self-defense. The following colloquy then occurred:
[Prosecutor]: I know that the standard [of
proof] is incredibly low of it being a scintilla of
evidence, and so I don’t think the People can in
good faith dispute that there’s contradictory
testimony including the defendant’s
statements. . . .
[COURT]: Counsel, any objection to the
self-defense instruction [that was tendered by
the prosecution] and its applicability to . . .
first, second and third degree assault?
[PROSECUTOR]: No, Your Honor.
[COURT]: [Defense counsel?]
[DEFENSE COUNSEL]: Your Honor, I believe
this to be a correct statement of the law, so I
don’t have any objection.
[COURT]: Thank you.
¶8 The court instructed the jury:
It is an affirmative defense to the crime of
Assault in the First Degree . . . that the
defendant used deadly physical force upon [the
victim]:
l. In order to defend himself or a third person
from what he reasonably believed to be the use
or imminent use of unlawful physical force by
the other person,
3
2. He used a degree of force which he
reasonably believed to be necessary for that
purpose, and
3. He reasonably believed a lesser degree of
force was inadequate, and
4. Had reasonable grounds to believe, and did
believe that he or another person was in
imminent danger of being killed or of receiving
great bodily injury.
(Emphasis added.)
¶9 Further, the elemental instruction for first degree assault
referenced the “deadly physical force” instruction by saying,
“without the affirmative defense [specified] in instruction number
29.” The jury was not instructed on the definition of “deadly
physical force.”
¶ 10 “‘Deadly physical force’ means force, the intended, natural,
and probable consequence of which is to produce death, and which
does, in fact, produce death.” § 18-1-901(3)(d), C.R.S. 2018
(emphasis added); see also People v. Ferguson, 43 P.3d 705, 708
(Colo. App. 2001) (“If the force used by the defendant does not
cause death, by definition it cannot be deadly physical force.”); CJI-
Crim. 5:01, 5(9) (1983) (incorporating statutory definition of “deadly
physical force”); CJI-Crim. 7:17 (1983) (self-defense instruction
4
concerning deadly physical force “should only be used if the victim
dies”).
¶ 11 Without question, it was error for the court to instruct the jury
on deadly physical force because defendant was not accused of
causing death. By giving an inapplicable instruction, and
incorporating it into the elemental instruction for first, second, and
third degree assault, the court would have caused the jury to have
an incorrect understanding of the elements of those charges.
II. Waiver or Forfeiture
¶ 12 In Ramirez I, the division concluded that Ramirez, through his
counsel, had waived this instructional error. That conclusion
focused on defense counsel’s statement, “I believe this to be a
correct statement of the law, so I don’t have any objection.”
Applying Rediger and the supreme court’s recent decision in People
v. Smith, 2018 CO 33, we now conclude that this statement did not
amount to waiver and was, instead, a forfeiture.
¶ 13 According to Rediger, “[w]aiver, in contrast to invited error, is
“the intentional relinquishment of a known right or privilege.”
Rediger, ¶ 39 (quoting Dep’t of Health v. Donahue,
690 P.2d 243,
247 (Colo. 1984)). Courts are not to “presume acquiescence in the
5
loss of fundamental constitutional rights, and therefore [must]
indulge every reasonable presumption against waiver.” Id. (quoting
People v. Curtis,
681 P.2d 504, 514 (Colo. 1984)).
¶ 14 We see no indication in the record that defense counsel
recognized the error in application of the deadly force jury
instruction. There would be no rational, strategic reason for the
defense to want such an erroneous instruction to be given. Indeed,
counsel’s expression that he believed the instruction to be “a correct
statement of the law” shows that he failed to notice that it was an
incorrect statement of the law as applied to the first, second, and
third degree assault charges in this case. Cf. People v. Stewart,
55
P.3d 107, 119 (Colo. 2002) (stating that a nontactical instructional
omission is reviewable for plain error).
¶ 15 And as we have discussed, the error would have caused the
jury to misunderstand the elemental jury instruction for first degree
assault, which referenced the “affirmative defense [specified in
erroneously phrased] instruction number 29.”
¶ 16 Given that we are to indulge every reasonable presumption
against waiver, we conclude that counsel did not waive the
instructional error. See id.; see also Smith, ¶ 18 (finding no waiver
6
of instructional error where “the record before us reveals no
evidence that [the defendant], by stating that the instructions
generally were ‘acceptable’ to him, intended to relinquish a known
variance claim”).
¶ 17 “Forfeiture” is “the failure to make the timely assertion of a
right.” Rediger, ¶ 40. Rediger cited United States v. Carrasco-
Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007), for the proposition
that “waiver is accomplished by intent, [but] forfeiture comes about
through neglect.”
¶ 18 Defense counsel’s failure to perceive and address the error in
the instruction was patently attributable to neglect, and we
therefore conclude that the instructional error was not waived, but
merely forfeited. See Rediger, ¶ 44 (“In these circumstances, we
conclude that neglect, not intent, explains Rediger’s lack of an
objection . . . . Accordingly, in our view, Rediger’s acquiescence
amounts to a forfeiture, not a waiver.”).
¶ 19 In contrast with the dissent, we are not convinced that Rediger
is distinguishable on the basis that defense counsel there stated
that the instructions as a group were acceptable, whereas defense
counsel here accepted a specific instruction. By accepting all the
7
instructions, defense counsel in Rediger had accepted the included
elemental instruction. Nevertheless, our supreme court said, “[t]he
record before us reveals no evidence, either express or implied, that
Rediger intended to relinquish his right to be tried in conformity
with the charges . . . .” Id. at ¶ 42.
¶ 20 People v. Kessler, 2018 COA 60, does not change our view.
There, the division acknowledged Rediger, but distinguished it
because, in Kessler, “defense counsel did more than generally
acquiesce or fail to object. Defense counsel explicitly agreed that
the specific evidence at issue was admissible.” Id. at ¶ 37. The
circumstances of Kessler are unlike those here, where Ramirez’s
counsel showed no understanding that the jury instruction was
inapplicable. And as the division acknowledged in Kessler, that
case did not involve an elemental jury instruction. Id. But this
case does.
¶ 21 The division in People v. Tee,
2018 COA 84, ¶ 23, also
distinguished Rediger, explaining that “the record before us shows
that the trial court and defense counsel were involved in an
ongoing, interactive exchange.” See also People v. Murray, 2018
8
COA 102, ¶ 44 (“Defense counsel therefore clearly affirmatively
acquiesced in the admissibility of the Montana judgment.”).
¶ 22 There is no such indication in the record here. Instead, the
entire jury instruction conference — which dealt with thirty-seven
jury instructions for charges that were originally brought in four
separate cases — takes up only five pages of the trial transcript.
Defense counsel’s statement that he thought the instruction
correctly stated the law was made in one brief sentence.
¶ 23 The record shows defense counsel’s apparent lack of
awareness of the error that was baked into the instruction. Cf.
People v. Allgier,
2018 COA 122, ¶¶ 4-28 (holding that defense
counsel did not waive for appellate review a CRE 403 argument
regarding the admission of certain exhibits even though defense
counsel said “no objection” when the prosecution moved to
introduce them because the “record [did] not foreclose the
possibility that defense counsel overlooked the possible
prejudice . . . .”). Under these circumstances, we cannot conclude
that counsel intentionally relinquished a known right on
defendant’s behalf.
9
¶ 24 Instead, counsel’s conduct amounted to a forfeiture, and, as a
result, we must proceed to review the error for plain error. Rediger,
¶ 44; Smith, ¶¶ 18, 22.
III. Plain Error Review
¶ 25 We conclude that the court committed plain error, and that we
must reverse his first degree assault conviction as a result.
¶ 26 Plain error is obvious and substantial error that so
undermined the fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the judgment of conviction.
Hagos v. People, 2012 CO 63, ¶ 14.
¶ 27 The error in the instruction was indeed obvious. Giving the
deadly force instruction where the alleged victim did not die
contravened the applicable statute, § 18-1-901(3)(d); case law,
Ferguson,
43 P.3d at 708; and pattern jury instruction, CJI-Crim.
5:01, 5(9) (1983); CJI-Crim. 7:17 (1983).
¶ 28 The error was also unfairly prejudicial. As in Ferguson, the
failure to instruct on the non-deadly, ordinary use of force
“permitted [the jury] to hold [the] defendant to a higher standard in
establishing self-defense than is required by law.”
43 P.3d at 708;
see also People v. Vasquez,
148 P.3d 326, 330 (Colo. App. 2006) (“In
10
restricting the jury’s consideration to only the most stringent
conditions under which a claim of self-defense could be established,
the trial court committed prejudicial error.”).
¶ 29 As a result, we must reverse defendant’s conviction of first
degree assault.
IV. Incorporation of Ramirez I as to Other Issues
¶ 30 The resolution of this appeal on all other issues discussed in
Ramirez I is unaffected by the supreme court’s remand order. As a
result, that opinion stands as to those other issues, and we
incorporate herein those parts of Ramirez I addressing the other
issues.
V. Conclusion
¶ 31 The judgment of conviction of first degree assault is reversed,
and the case is remanded for a new trial as to that charge. In all
other respects, the judgment is affirmed.
JUSTICE MARTINEZ concurs.
JUDGE WEBB dissents.
11
JUDGE WEBB, dissenting.
¶ 32 In law, as in life, “[o]n the question you ask depends the
answer you get.” Bay Ridge Operating Co. v. Aaron, 334 U.S. 446,
484 (1948) (Frankfurter, J., dissenting).
¶ 33 Following the mandate to consider People v. Rediger,
2018 CO
32, the majority asks whether defense counsel thought about the
deadly physical force language in the self-defense instruction before
endorsing that instruction. The majority then sees “no indication in
the record that defense counsel recognized the error in application
of the deadly force jury instruction,” supra ¶ 14, and on that basis
“cannot conclude that counsel intentionally relinquished a known
right on defendant’s behalf,” supra ¶ 23. But Rediger does not, in
my view, mandate a subjective inquiry into whether counsel
thought about the reason why an instruction might be flawed, so
long as the record shows that counsel specifically agreed that the
particular instruction challenged on appeal should have been given.
¶ 34 So, I ask whether defense counsel knowingly and intentionally
assented to the self-defense instruction being given. After the trial
court asked the lawyers if they wanted to make a “record regarding
the self-defense instructions or self-defense issues,” defense counsel
12
said of the self-defense instruction, “Your Honor, I believe this to be
a correct statement of the law, so I don’t have any objection.”
(Emphasis added.) Because this statement — far from a mere rote
response — constitutes a knowing and intentional waiver of any
error in giving the self-defense instruction, I would affirm.
¶ 35 Therefore, and with respect, I dissent.
I. Instructional Error
¶ 36 According to the majority, under cases such as People v.
Ferguson, 43 P.3d 705, 708 (Colo. App. 2001), reversal is required
because the trial court incorrectly instructed the jury on the use of
deadly force — which requires that the force produce death — and
in doing so held the prosecution to a lower standard for disproving
self-defense than if the jury had been instructed on ordinary force.
Because of defense counsel’s waiver, I do not address error, plain or
otherwise, in the instruction. See People v. Bryant,
2013 COA 28,
¶ 13 n.2 (“[A] ‘waived’ claim of error presents nothing for an
appellate court to review.” (quoting People v. Rodriguez,
209 P.3d
1151, 1160 (Colo. App. 2008))).
13
II. Waiver After Rediger and Smith
¶ 37 In Rediger, ¶¶ 3, 10, our supreme court held that a
defendant’s attorney had not waived a challenge to an elemental
instruction by responding, “Yes. Defense is satisfied,” when the
trial court asked whether counsel was “satisfied with the
instructions,” all of which the prosecutor had prepared. The court
reasoned that such “mere acquiescence” to the instructions as a
group was not enough to show “an intentional relinquishment of a
known right.” Id. at ¶¶ 3, 39-44. Similarly, in People v. Smith,
2018 CO 33, ¶¶ 17-21, announced concurrently with Rediger, the
supreme court concluded that waiver did not apply when defense
counsel said of the proposed jury instructions, “[t]hey are
acceptable, Judge.” Id. at ¶ 6.
¶ 38 Thus, Rediger and Smith differ from this case in two important
ways.
¶ 39 First, in both cases, the trial court did not solicit defense
counsel’s position on the specific instruction belatedly challenged
on appeal. See United States v. Hamilton,
499 F.3d 734, 736 (7th
Cir. 2007) (The court declined to find a waiver because “while the
judge invited objections he didn’t ask the defendant’s lawyer
14
whether the lawyer agreed to the instructions to which he did not
object, or ask the lawyer specifically about the intent instruction.”).
In contrast, here the court specifically asked, “Counsel, any
objection to the self-defense instruction and its applicability to both
first, second and third degree assault?” See People v.
Perez-Rodriguez, 2017 COA 77, ¶ 28 (“Assuming that the statement
‘no objection’ was the response to an inquiry about specific
language or a specific instruction, the circumstances might support
deliberate conduct.”).
¶ 40 Second, in both cases, defense counsel gave a generic —
“satisfied” and “acceptable” — response, equally applicable to all of
the tendered instructions. This response could well have been
merely a “rote statement that [counsel] is not objecting . . . .”
United States v. Zubia-Torres,
550 F.3d 1202, 1207 (10th Cir. 2008)
(cited with approval in Rediger, ¶ 45). Yet here, defense counsel
gave an instruction-specific response: “I believe this [instruction] to
be a correct statement of the law.” See United States v. Soto,
799
F.3d 68, 96 (1st Cir. 2015) (The court found the instructional
contention was waived where “the district court informed the Sotos
exactly how it was planning to instruct the jury on good faith and
15
condonation — instructions Carmen and Steven had explicitly
requested — and sought their feedback, twice asking if they were
okay with those specific instructions.”).
¶ 41 By any reckoning, the records in both cases created reasoned
doubt whether defense counsel had specifically assented to the
particular instructions challenged on appeal. Not so here.
III. Application
¶ 42 Because questions of waiver “are necessarily fact-specific,”
People v. Harlan, 54 P.3d 871, 879 (Colo. 2002), some variability
exists among different divisions’ treatment of Rediger, see People in
Interest of A.V.,
2018 COA 138M, ¶ 13 (collecting cases).
¶ 43 In People v. Kessler,
2018 COA 60, ¶ 37, the division
distinguished Rediger because “defense counsel did more than
generally acquiesce or fail to object. Defense counsel explicitly
agreed that the specific evidence at issue was admissible.” The
division in People v. Tee,
2018 COA 84, ¶ 23, also distinguished
Rediger because “the record before us shows that the trial court and
defense counsel were involved in an ongoing, interactive exchange.”
See also People v. Murray,
2018 COA 102, ¶ 44 (While citing
Rediger, the division held that “[d]efense counsel therefore clearly
16
affirmatively acquiesced in the admissibility of the Montana
judgment.”).
¶ 44 Because Tee differs from Kessler and Murray, these cases
warrant a closer look. In Tee, the trial court, the prosecutor, and
defense counsel had specifically discussed the predeliberation issue
raised on appeal. But here, whether anyone said anything about
the deadly physical force language before defense counsel endorsed
the self-defense instruction is unknown.
¶ 45 Neither Kessler nor Murray describes any similar colloquy.
Instead, when presented with the evidence, defense counsel
responded that it was admissible. The divisions did not shy away
from finding waivers by pondering whether counsel had considered
the reasons raised on appeal as to why the evidence should not
have been admitted. Rather, as here, defense counsel faced a
binary choice: either object or acquiesce. And as here, because
counsel chose the latter, giving the instruction cannot be
challenged on appeal.
¶ 46 I discern no principled difference between admitting evidence
and giving an instruction. In both circumstances, multiple reasons
may be worth considering before counsel acts. Still, regardless of
17
what counsel subjectively contemplates, if counsel objectively
acquiesces, the evidence comes in or the instruction is given. And
asking whether counsel subjectively considered all such reasons
disregards the principle that “[s]ociety has an interest in the finality
of court determinations that should not be lightly put aside.”
Stroup v. People, 656 P.2d 680, 684 (Colo. 1982).
¶ 47 Fine-tuning waiver remains problematic because neither
Rediger nor Smith cited, much less distinguished, Stackhouse v.
People,
2015 CO 48, ¶¶ 16-17 (“Defendants in Colorado
affirmatively waive their right to public trial by not objecting to
known closures,” although what counsel knew was not based on
anything that the court and counsel had discussed, but on a
“presum[ption] that attorneys know the applicable rules of
procedure.”) (citation omitted). Even without regard to Stackhouse,
however, the case before us is more like Kessler and Murray than it
is like Rediger and Smith. While I am not bound by the decisions of
other divisions, “we give such decisions considerable deference.”
People v. Smoots,
2013 COA 152, ¶ 20, aff’d sub nom. Reyna-Abarca
v. People,
2017 CO 15.
18
¶ 48 After all, the trial court specifically asked defense counsel for
his position on the self-defense instruction as well as on
“self-defense issues.” In response, counsel did not just renounce
“any objection,” as in Kessler and Murray. Counsel went further
and explained his rationale — that the instruction was a “correct
statement of the law.” Whether counsel was wrong is the province
of an ineffective assistance claim under Crim. P. 35(c).
¶ 49 Despite all of this, is waiver precluded because what was on
defense counsel’s mind when he unambiguously acquiesced is
unknown? The majority says “yes” because waiver must be “the
intentional relinquishment of a known right or privilege.” Rediger,
¶ 39 (quoting Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo.
1984)). For three reasons, I say “no.”
¶ 50 First, the knowing and intentional standard for a waiver by
defense counsel differs from the “voluntary, knowing, and
intelligent” test for waiver by a defendant. See, e.g., Sanchez v.
People,
2014 CO 56, ¶ 11. Such a waiver “is intelligent if the
defendant is ‘fully aware of what he is doing and . . . make[s] a
conscious, informed choice to relinquish the known right.’” People
v. Walker,
2014 CO 6, ¶ 16 (alteration in original) (citation omitted).
19
Had the Rediger court intended to condition waiver on plumbing the
depths of defense counsel’s awareness, the court would have
included “intelligent” in the formulation. Unsurprisingly, it did not.
See Hinojos-Mendoza v. People, 169 P.3d 662, 670 (Colo. 2007)
(“[W]e presume that attorneys know the applicable rules of
procedure,” and we thus “can infer from the failure to comply with
the procedural requirements that the attorney made a decision not
to exercise the right at issue.”); see also Cropper v. People,
251 P.3d
434, 436-37 (Colo. 2011) (In Hinojos-Mendoza “we held that defense
counsel’s failure to request live testimony from the technician was a
valid waiver of the defendant’s confrontation right even though the
attorney did not have actual knowledge of section 16-3-309(5)’s
requirements.”) (emphasis added)).
¶ 51 Second, I look at knowledge. Because defense counsel argued
to the trial court that the evidence met the low standard for giving a
self-defense instruction, he knew that he was entitled to such an
instruction. And because, after having successfully argued for a
self-defense instruction, he acknowledged that the particular
instruction proposed was a correct statement of the law, he also
knew that he was entitled to a self-defense instruction that was
20
appropriate for the case being tried. See Black’s Law Dictionary
1737 (9th ed. 2009) (defining “knowing” as “showing awareness or
understanding”).
¶ 52 Third, I look at intent. Counsel could have objected to giving
the instruction, asked for different language, or acquiesced in giving
it. He unambiguously acquiesced. How much or how little thought
counsel gave to possible flaws in the instruction does not defeat
intentionality. See Black’s Law Dictionary 883 (defining
“intentional” as “[d]one with the aim of carrying out the act”).
¶ 53 Despite defense counsel’s clear choice, the majority parses his
acquiescence in giving the instruction as opposed to his
acquiescence in the deadly force language. But appellate courts “do
not require the defendant to expressly state on the record his intent
to waive a challenge before we will consider it waived . . . and such
an express statement is rare.” United States v. Garcia, 580 F.3d
528, 542 (7th Cir. 2009). I have not found any authority
conditioning waiver on the outcome of an inquiry into whether
defense counsel recognized every reason why an instruction might
be inappropriate, at least where, as here, counsel affirmatively
21
endorses a particular instruction in response to a trial court’s
specific question about counsel’s position on that instruction.
¶ 54 Closest to such an inquiry is a line of First Circuit cases
summarized in United States v. Corbett, 870 F.3d 21, 30-31 (1st Cir.
2017). The court explained that “when the ‘subject matter [is]
unmistakably on the table, and the defense’s silence is reasonably
understood only as signifying agreement that there was nothing
objectionable,’ the issue is waived on appeal.”
Id. (citations
omitted).
¶ 55 Applying this test here, defendant’s right to a self-defense
instruction and the wording of that instruction were “on the table.”
See
id. (citations omitted). Defense counsel persuaded the trial
court to give such an instruction and then acquiesced in the
language to be used. In my view, the inquiry should end there.
¶ 56 Going further to ponder whether defense counsel considered
potential reasons why the instruction might be flawed demands too
much. Suppose an instruction was flawed for two independent
reasons, one of which was discussed among counsel and the trial
court before defense counsel agreed that the instruction be given.
Could appellate counsel avoid waiver by arguing that the other
22
reason warrants reversal and the record did not show that trial
counsel had considered it?
¶ 57 Still, the majority points out that “[t]here would be no rational,
strategic reason for the defense to want such an erroneous
instruction to be given.” Supra ¶ 14. But this observation conflates
waiver with invited error by assuming that inquiry into counsel’s
strategic purpose plays the same role in ignoring an affirmative
waiver that it does in declining to apply invited error. See Rediger,
¶ 34 (“Invited error is a narrow doctrine and applies to errors in
trial strategy but not to errors that result from oversight.”). I am
unaware of any Colorado authority tempering the effect of an
affirmative waiver based on possible or even apparent lack of a
strategic purpose.
¶ 58 Finally, everyone would agree that reversing a conviction and
retrying the case carry “substantial social costs.” United States v.
Mechanik, 475 U.S. 66, 72 (1986); see People v. Sepulveda,
65 P.3d
1002, 1008 (Colo. 2003). So, who better than the trial court to
protect the verdict against the risk of reversal by affording defense
counsel a fair opportunity to object? See Martinez v. People,
2015
CO 16, ¶ 14 (“An adequate objection allows the trial court a
23
meaningful chance to prevent or correct the error and creates a
record for appellate review.”). But to do so, must the court ask
defense counsel what he or she is thinking? Worse, must the court
prime the pump by suggesting to counsel gray areas about which
counsel should be thinking?
¶ 59 Here, the trial court sought to avoid those costs by broadly
inviting defense counsel to address the instruction and related
issues. With equal breadth, counsel replied, “I don’t have any
objection.” Neither due process nor common sense could require
greater effort by the trial court. Yet, if the integrity of a verdict
depends not on what defense counsel says but on what counsel is
thinking at the time, such efforts can always be thwarted by
imaginative appellate counsel with the luxury of time to develop
arguments that trial counsel may not have considered. If so, then
in the end reversal leaves the trial court wondering, “what more
could I have done?”
IV. Conclusion
¶ 60 I would affirm the judgment.
24
