deciding not to address merits of plain error argument raised by criminal defendant where defendant's counsel prepared and tendered theory of the case instruction about which defendant later complainedSummary of this case from People v. Stewart
Decided September 18, 1989. Rehearing Denied October 16, 1989.
Certiorari to the Colorado Court of Appeals.
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Clement P. Engle, Assistant Attorney General, for Petitioner.
David F. Vela, Colorado State Public Defender, Rachel A. Bellis, Deputy State Public Defender, for Respondent.
We granted certiorari to review the decision of the court of appeals in People v. Zapata, 759 P.2d 754 (Colo.App. 1988), which affirmed the conviction of Toby E. Zapata (defendant) on two counts of first-degree sexual assault, two counts of second-degree burglary, and two counts of violent crime, but vacated the sentences imposed for burglary. On certiorari, the prosecution asserts that the invited error doctrine bars appellate review of error in a jury instruction, where the instruction was drafted and tendered by the defense. We conclude that it does, and although we affirm the court of appeals, we disagree with the reasoning in Part I of the opinion which would replace the invited error doctrine with a plain error analysis.
In the late evening or early morning hours of October 13-14, 1983, J.E., a woman living with her two young children in Denver, was awakened by a man who entered her bedroom, and told her that if she screamed, he would kill her. She felt a sharp instrument pressed against her cheek or neck. When he spoke to her in his low voice, he referred to her as "lady." The assailant then undressed her and forced her to engage in vaginal intercourse. Before leaving, he told her not to call the police, that he would be watching, that he was not far away, and that he would be back. After he left, she found that the kitchen window was open, and that the screen was bent back. The police were called and found latent fingerprints around the kitchen screen. J.E. told the police that she had gotten a good enough look at her assailant to identify him, although she identified him as Caucasian. Samples taken from the victim's vagina and mouth at a hospital in the early morning after the attack were inconclusive as to her attacker's identity.
Early in the morning on June 1, 1984, J.E. was awakened by a man standing over her, and she realized that it was the same man that had assaulted her in October. He again threatened to kill her if she screamed, and pressed a sharp instrument into her back, stating, "I told you I would be back." Referring to her as "lady," he told her that his brother was dead and she had caused his death. Undressing her, he forced her to engage in anal and vaginal intercourse. When he found no money in her purse, he became angry. Pressing the sharp instrument into her back, he said he was going to kill her, but apparently changed his mind and left. This time she noticed that he had a tattoo of a cross on the web between the thumb and forefinger. Tests of samples taken from the victim's vagina, anus, and mouth revealed the attacker to either have type "O" blood, or be a non-secreter. This time she described him as "Spanish" and as having a goatee or moustache.
On August 6, 1984, J.E. thought she saw the assailant at a gas station in Denver, and notified the police. Using information she gave them, a photographic lineup was conducted two weeks later, at which she identified a particular individual. However, his blood type was inconsistent with the sample taken on June 1, and he was eliminated as a suspect.
Acting on an informant's tip, and information obtained by computer, Denver police obtained an arrest warrant for Toby Zapata, the defendant. He was arrested at his residence, about eight blocks from where J.E. lived, on September 11, 1984. Defendant gave a videotaped statement after his arrest, confirming some, but not all, of the details of the two attacks on J.E. In addition, it was determined that his blood type was consistent with that of the assailant, as is that of 56% of the male population. A fingerprint expert testified at the trial that prints taken from the defendant matched the latent prints taken from the victim's screen on October 14, 1983. Finally, a photograph taken of the defendant's left hand on March 28, 1985, showed a cross.
The defense at trial was that the victim had misidentified the defendant. The defendant's attorney submitted a number of instructions on the misidentification defense which were refused by the trial court. The defendant then presented Instruction No. 12 to the court, which is the pivotal issue on appeal. Instruction No. 12 was prepared solely by the defendant, and was accepted by the court without change.
Instruction No. 12 read as follows: "It is the accused's theory of the case that he has not been correctly identified as the perpetrator of the offense(s) charged. "If you find from all the evidence that the accused has been incorrectly identified, then you should find the accused not guilty. "If, however, you find from all the evidence the accused was correctly identified and the prosecution has proven beyond a reasonable doubt all other elements of the offense(s) charged, you should find the accused guilty."
On direct appeal, the defendant maintained that Instruction No. 12 misstated the burden of proof, allowing the jury to find the defendant guilty on a standard less than beyond a reasonable doubt. Because the instruction had been proposed by the defendant, the court of appeals recognized that the doctrine of invited error was applicable. However, in commenting on the invited error doctrine, the court of appeals, relying on People v. Mackey, 185 Colo. 24, 521 P.2d 910 (1974), stated:
The court of appeals agreed that, "standing alone, the instruction quoted above might be construed to require the defendant to prove his misidentification by some unspecified standard." 759 P.2d at 756. Because we conclude that review is precluded by the doctrine of invited error, we do not reach this issue.
"The invited error doctrine has been stated as a rule of strict preclusion of review. However, the right to trial by jury is a fundamental constitutional right guaranteed in a criminal prosecution. The ultimate duty to instruct properly lies with the trial court under People v. Mackey, supra. Thus it is illogical to apply the invited error doctrine in a manner which strictly prohibits review of fundamentally erroneous instructions which result in manifest prejudice or unfairness."
Zapata, 759 P.2d at 756 (emphasis added). We disagree.
We have long followed the rule that a party may not complain on appeal of an error that he has invited or injected into the case; he must abide the consequences of his acts. People v. Collins, 730 P.2d 293 (Colo. 1986); People v. Shackelford, 182 Colo. 48, 511 P.2d 19 (1973); Stilley v. People, 160 Colo. 329, 417 P.2d 494 (1966); Palmer v. Gleason, 154 Colo. 145, 389 P.2d 90 (1964); Gray v. People, 139 Colo. 583, 342 P.2d 627 (1959).
Martinez v. People, 166 Colo. 524, 444 P.2d 641 (1968), is not to the contrary. The erroneous instruction complained of was not formulated by the defendant, although a similar charge was requested by the defendant, but refused by the court. Thus, it could not be said that it was the defendant's conduct that led the court into error.
"We have held that under the doctrine of "invited" error, a party may not complain where he has been the instrument for injecting error in the case; he is expected to abide the consequences of his acts. People v. Shackelford, 182 Colo. 48, 511 P.2d 19 (1973); see also United States v. Irwin, 654 F.2d 671 (10th Cir. 1981), cert. denied, 455 U.S. 1016, 102 S. Ct. 1709, 72 L.Ed.2d 133 (1982). We hold that any error was error injected by the defendant as a matter of trial strategy, and the defendant may not now be heard to complain."
Collins, 730 P.2d at 304-05. Similarly, in Gray v. People, the defendant submitted an instruction which implied that he had committed "other offenses" than the one charged. On appeal, the defendant alleged error in the instruction, but we declined to consider it, stating:
"While we do not approve of the language of the instruction, it appearing to label as a matter of law certain conduct of defendant as "other offenses," nevertheless it was given for the benefit of the defendant, having been tendered by defendant's counsel and strenuously resisted by the prosecuting attorney. It was finally given by the court upon the insistence of the defendant. In addition to the rule that instructions not objected to at the trial will not be considered on writ of error, we cannot consider the trial court to be in error for giving an instruction demanded by the defense."
Under the facts of this case, no reason exists to depart from the longstanding invited error rule. The allegation of constitutional error in the jury instruction does not require us to abandon the strict preclusion of review of invited error. The defendant in a criminal case may waive constitutional rights, and properly be held accountable for his choice:
"The right to trial by jury, the right to counsel, the right not to incriminate one's self, and related matters are known as alienable constitutional rights or as rights in the nature of personal privilege for the benefit of the person who may seek their protection. Such rights, whenever assertable, may be waived."
Geer v. Alaniz, 138 Colo. 177, 181, 331 P.2d 260, 262 (1958). Other jurisdictions have reached the same result. See, e.g., State v. Boyer, 91 Wn.2d 342, 588 P.2d 1151 (1979); State v. Carpenter, 52 Wn. App. 680, 763 P.2d 455 (1988) (invited error doctrine precludes review of even constitutional error in jury instructions submitted by criminal defendant); Patterson v. State, 233 Ga. 724, 213 S.E.2d 612 (1975) (same).
In Patterson the defendant's attorney tendered an alibi instruction that was inconsistent with the presumption of innocence, and placed the burden of proof on the criminal defendant. On appeal, the defendant contended that the invited error doctrine should not bar review. The Georgia Supreme Court disagreed:
"Defendant's attorney argues now that even assuming he requested the charge, nonetheless he may not for this procedural reason be barred from complaining of it, because its infirmity is of constitutional magnitude. Translated, this argument urges that one may not waive a constitutional right. This is not the law. A criminal defendant may in a procedural setting implement choices which have the effect of waiving basic constitutional guarantees . . . . In Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L.Ed. 1461, and recently in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, the United States Supreme Court has discussed extensively the standards for valid waivers of certain constitutional protections. There is nothing in those opinions which undercuts the long standing rule that error may not be enumerated upon the giving of a charge requested by defendant's counsel."
We are aware that some courts have found an exception to the invited error doctrine where the error was not a part of the defendant's trial strategy. See, e.g., People v. Graham, 71 Cal.2d 303, 455 P.2d 153, 78 Cal.Rptr. 217 (1969); State v. Dobier, 163 W. Va. 192, 255 S.E.2d 552 (1979). We are not presented with such a case here. The only defense was misidentification, which was the keystone of the defense. It was the theme of the defendant's closing argument. The trial court had refused four of the instructions offered by the defendant, but precisely because counsel considered the instruction crucial to the defense, he offered Instruction No. 12. Merely because, in hindsight, the instruction may have been a mistake does not alter the fact that it was demanded by the defendant, and he must abide the consequences. See, e.g., State v. Angel, 319 S.E.2d 388 (W.Va. 1984) (misstating of elements of offense charged in jury instruction submitted by defendant was subject to invited error doctrine where defendant attempted to benefit from instruction in closing argument).
We do not approve the assertion of error on appeal by the very party who injected that error into the trial. The reasoning of the court of appeals on invited error is disapproved, but the judgment is affirmed in all other respects.
CHIEF JUSTICE QUINN specially concurs; JUSTICE LOHR specially concurs.