People v. Roman, 2017 CO 70

Background

Darren Roman was charged with attempted first-degree murder and first-degree assault after the mother of his child sustained a deep neck wound and severe hand lacerations from a knife.
At trial the victim testified Roman attacked her, threatened to kill her, pinned her, and sliced her neck; medical testimony showed the neck wound risked fatal injury and hand wounds risked permanent impairment.
Roman testified he never stabbed or threatened the victim; he said he threatened suicide with a knife, the victim pushed/taunted him, cut her own hands, and later stabbed him in the hand.
The trial court instructed the jury on first-degree assault and a lesser-included offense of second-degree assault by intentional bodily injury with a deadly weapon, and allowed a theory-of-the-case instruction reflecting Roman’s testimony.
Roman requested an additional lesser-included instruction for second-degree assault by recklessly causing serious bodily injury (and for third-degree assault); the trial court denied those instructions.
The jury acquitted on attempted murder counts but convicted Roman of first-degree assault; the court of appeals reversed based on error in denying the reckless-second-degree-assault instruction and found the error not harmless. The Colorado Supreme Court granted review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by refusing Roman’s requested lesser-included instruction for reckless second-degree assault	People: trial court did not err or, if it erred, error was harmless	Roman: evidence and his testimony provided a rational basis for a reckless-second-degree-assault instruction	Held: assuming error, it was harmless — no reasonable possibility the omission affected the verdict
Proper harmless-error standard for denied lesser-offense instructions	People: apply Colorado harmless-error review; reversal only if error affected substantial rights	Roman: relied on court of appeals’ view that denial was prejudicial because it removed a lesser option	Held: reaffirmed Colorado harmless-error approach — examine case-specific impact; reversal only if reasonable probability/possibility of prejudice
Whether jury’s conviction of first-degree assault implies prejudice from lack of reckless-second-degree option	People: jury’s available lesser option and defendant’s theory show no prejudice	Roman: jury might have convicted of a greater offense absent the requested lesser instruction	Held: because jury rejected the provided lesser included (intentional second-degree) and Roman’s theory denied causing injury, no reasonable possibility the absent reckless option changed outcome
Role of defendant’s theory-of-the-case in assessing prejudice	People: defendant’s unambiguous denial of causing injury negates possibility jury would use reckless option to implement his theory	Roman: his testimony could support recklessness theory per court of appeals	Held: Roman’s testimony and instruction consistently denied causing injury, so jury could not have plausibly convicted of reckless assault consistent with his theory; omission harmless

Key Cases Cited

Mata-Medina v. People, 71 P.3d 973 (Colo. 2003) (lesser-offense instruction error reviewed under harmless-error standard)
Crider v. People, 186 P.3d 39 (Colo. 2008) (no reasonable possibility/probability that error contributed to conviction is harmless)
People v. Novotny, 320 P.3d 1194 (Colo. 2014) (trial-error vs. structural-error analysis; case-specific assessment of prejudice)
Krutsinger v. People, 219 P.3d 1054 (Colo. 2009) (discussion of harmless- and plain-error standards)
People v. Nunez, 841 P.2d 261 (Colo. 1992) (defendant entitled to present theory of the case even if only supported by defendant’s testimony)
People v. Rivera, 525 P.2d 431 (Colo. 1974) (defendant may obtain instruction on lesser offense supported by evidence)
Keeble v. United States, 412 U.S. 205 (1973) (entitlement to lesser-included instruction to avoid all-or-nothing risk)