People v. Wade

548 P.3d 1164

2024 COA 13

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Michael William WADE, Defendant-Appellant.

Court of Appeals No. 21CA1581

Colorado Court of Appeals, Div. III.

Announced February 15, 2024

Garfield County District Court No. 17CR368, Honorable James B. Boyd, Judge

Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE TAUBMAN*

¶ 1 Defendant, Michael William Wade, appeals the judgment of conviction entered on jury verdicts finding him guilty of (1) second degree assault of his wife, A.C.; (2) third degree assault of A.C. and his daughter, H.W.; (3) misdemeanor child abuse of H.W.; (4) harassment of A.C., H.W., and his son, D.W.; (5) misdemeanor menacing; and (6) telephone service obstruction. We disagree with his double jeopardy arguments under both subsections (5)(a) and (5)(c) of section 18-1-408, C.R.S. 2023, as well as his contention that he was entitled to a self-defense instruction, and therefore affirm.

I. Background

¶ 2 According to the prosecution’s evidence, Wade engaged in the conduct underlying his convictions over several hours one night in the family’s apartment. First, while alone in their bedroom, Wade repeatedly made the bed, then made A.C. sit on the bed and "forced" her legs into a certain position, and then made her get up so he could remake the bed. During this time, Wade punched A.C. in her shoulder and her back. At one point, he put a pillow over A.C.’s face, sat on her chest, and placed two hands around her neck, obstructing her breathing. Wade continued to intermittently strangle A.C. for thirty to forty-five minutes. His fingernails broke the skin on her neck and shoulder, and A.C. was bruised around her neck and face. He also threatened to kill her. At some point, Wade took either A.C.’s phone or her SIM card to keep her from calling for help.

¶ 3 When ten-year-old D.W. eventually entered the bedroom, screaming, "Please leave my mom alone," Wade pulled him into the room by his ear, threw him across the room, and then picked him up and shoved him into a chair. Wade threatened to shoot D.W. and H.W. with a BB gun.

¶ 4 Twelve-year-old H.W. was recording the sound of these events on her phone when Wade came into her bedroom and attempted to take the phone away. Wade slapped H.W.’s face, pushing her cheek into her braces. Then he warned H.W. that she "doesn’t know what a real hit feels like," grabbed her wrist and ankle, and pulled her off the bed.

¶ 5 At least once during the night, A.C. armed herself with a steak knife to defend herself and the children. When Wade returned A.C.’s phone, at about 3 a.m., she called 911.

¶ 6 A.C., H.W., and D.W. testified at trial. The prosecution presented photographs of the family’s injuries and played for the jury both a recording of AC.’s 911 call and H.W.’s hour-long phone recording. Wade did not testify. The jury found Wade guilty of the crimes listed above, and the district court sentenced him to five years of supervised probation for second degree assault, plus concurrent jail terms ranging between six months to two years on each of the remaining counts.

II. Self-Defense Instruction

[1] ¶ 7 Wade contends that the court erred by failing to sua sponte instruct the jury on the affirmative defense of self-defense, based on evidence presented by prosecution witness Officer Travis Westcott, the first officer on the scene. We reject this contention.

A. Additional Background

¶ 8 Officer Westcott testified as follows:

[Wade] said that him and his wife had gotten into an argument over the living conditions of the family, and that she had taken a knife with her to bed. He woke up and she had the knife, and she choked him, and things escalated.

He took off his shirt to show me where he had — she had stabbed him. I didn’t see anything that was noticeably consistent with that.

¶ 9 A year and a half before trial, Wade filed an endorsement of two affirmative defenses: self-defense and special relationship. See § 18-1-703, C.R.S. 2023; § 18-1-704, C.R.S. 2023. However, self-defense appeared to be, at best, only a tentative theory of the case at trial. Defense counsel did not mention self-defense during his opening statement. He inquired about A.C.’s use of a knife and her hands on Wade’s neck during cross-examination of A.C. and Officer Westcott, but he was unable to elicit any further evidence that Wade acted in self-defense. He did not request or tender a self-defense instruction, although he tendered a special relationship instruction as to the alleged crimes against H.W. He did not mention self-defense or refer to the testimony quoted above during closing argument.

B. Applicable Law and Standard of Review

[2, 3] ¶ 10 "Trial courts have a duty to instruct the jury on all matters of law applicable to the case." Roberts v. People, 2017 CO 76, ¶ 18, 399 P.3d 702, 704-05. "We review jury instructions de novo to determine whether the instructions accurately informed the jury of the governing law." Id. at ¶ 18, 399 P.3d at 705.

[4–6] ¶ 11 However, the trial court "is not an advocate and need not serve as counsel for either party." Hansen v. State Farm Mut. Auto. Ins. Co., 957 P.2d 1380, 1384 (Colo. 1998). A court’s general duty to instruct does not extend to crafting theory of the case instructions when defense counsel fails to do so. Id.; see People v. Garcia, 28 P.3d 340, 343-44 (Colo. 2001). The jury needs to be instructed on self-defense "only if some evidence presented at trial supports it and the defendant requests it." People v. Lee, 30 P.3d 686, 689 (Colo. App. 2000) (emphasis added); see People v. Speer, 255 P.3d 1115, 1119 (Colo. 2011) ("[A] trial court is obliged to instruct the jury on a requested affirmative defense if there is any credible evidence … supporting it.") (emphasis added).

[7] ¶ 12 Because Wade did not request a self-defense instruction at trial or object to the instructions given, reversal is not warranted in the absence of plain error. See People v. Martinez, 2022 COA 111, ¶ 32, 522 P.3d 725, 731 (cert. granted in part July 17, 2023). We will reverse a conviction for plain error in the jury instructions only when (1) an error occurred; (2) the error was obvious; and (3) the defendant demonstrates "not only that the instruction[s] affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to his conviction." Garcia, 28 P.3d at 344 (citation omitted); accord Hoggard v. People, 2020 CO 54, ¶ 13, 465 P.3d 34, 38.

C. Analysis

¶ 13 To the extent Officer Westcott’s testimony supports a self-defense instruction, it would be applicable only to the offenses perpetrated against A.C. As best we understand Wade’s closing argument, his theory of defense for the alleged crimes against A.C. was a general denial.

¶ 14 Our review of the record reveals only tenuous support for Wade’s claim that he acted in self-defense against A.C. Officer Westcott testified that his investigation uncovered no evidence to support Wade’s claims that he had been choked and stabbed. Further, no exhibits presented at trial supported those claims.

¶ 15 A.C.’s testimony provided only a modicum of support. She testified that she put her hands on Wade’s neck that night, but she explained that she "was trying to fight back to be able to breathe" — she "was trying to push him back … [s]o that he would let go." This testimony was corroborated by statements A.C. made to a defense witness shortly after the event. A.C. admitted that she had a knife "to keep him away from [her]," but she testified that she did not threaten Wade with the knife until shortly before the police arrived. This testimony was corroborated by H.W., who testified that A.C. "obviously [had] the knife to defend herself’ but that "[s]he never used it; it was not even close." A.C. further testified that Wade could not have strangled her hi self-defense because he was sitting on her and she "had no way to move."

[8] ¶ 16 In light of this unfavorable evidence, the lack of a self-defense argument, and Wade’s tender of only one of two endorsed affirmative defense instructions, the record does not plainly suggest that a self-defense instruction was warranted. Further, it appears to us that defense counsel made a tactical decision not to submit a self-defense instruction. When the defense makes a tactical decision not to submit an alternative defense instruction, a trial court’s failure to sua sponte offer the instruction does not constitute error, much less plain error. See People v. Close, 867 P.2d 82, 90-91 (Colo. App. 1993) (concluding that there was no error in failing to give an affirmative defense instruction where the asserted defense was a partial denial and defense counsel made only passing reference to the affirmative defense in opening statement and closing argument), disapproved of on other grounds by Bogdanov v. People, 941 P.2d 247 (Colo. 1997); cf. People v. Stewart, 55 P.3d 107, 119 (Colo. 2002) ("[A] nontactical instructional omission generally should be reviewed for plain error.") (emphasis added).¹

¶ 17 Even if we assume that the district court erred in not giving a self-defense instruction, we conclude that any error was neither obvious nor likely to contribute to Wade’s convictions because the defense appeared to abandon any assertion of self-defense and the evidence supporting the defense was thin.

¶ 18 We therefore conclude that the district court did not err, plainly or otherwise, by failing to sua sponte instruct the jury on self-defense.

III. Double Jeopardy

¶ 19 Next, Wade contends that some of his convictions should have merged as lesser included offenses based on identical conduct. We disagree.

A. Standard of Review

[9–11] ¶ 20 The parties agree that Wade did not preserve this contention...