2017 COA 136
Colo. Ct. App.2017Background
- Defendant Jeritt Tardif, a gang member, arrived at a skate park armed after a call from co‑defendant Joaquin Soto and shot the (surviving) victim once in the abdomen; bystander cell‑phone video captured the incident.
- Prosecution introduced the original cell‑phone videos and two prosecution‑made slow‑motion versions; jury convicted Tardif of attempted second‑degree murder, first‑degree assault, conspiracy to commit first‑degree assault, and three related crimes of violence. Sentence: 22 years.
- On appeal Tardif challenged: (1) the heat‑of‑passion provocation instruction (burden of proof), (2) self‑defense instructions, (3) admission of slow‑motion videos, and (4) prosecutorial closing arguments.
- Court held Tardif preserved his challenge to the heat‑of‑passion instruction and that the instructions failed to tell the jury the prosecution must disprove heat of passion beyond a reasonable doubt, violating due process.
- Result: reversed convictions for attempted second‑degree murder, first‑degree assault, and the three crime‑of‑violence counts; affirmed conspiracy conviction; remanded. Court also found slow‑motion videos were improperly admitted and that self‑defense is not an affirmative defense to conspiracy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Heat of passion provocation instruction (burden of proof) | Prosecution: no relief — standard reasonable‑doubt instructions sufficient or instruction not warranted | Tardif: court failed to instruct jury that prosecution must disprove heat of passion beyond a reasonable doubt (due‑process violation) | Reversed attempted murder and assault convictions; instruction omitted burden and lowered prosecution's burden (not harmless) |
| Preservation / waiver of instruction error | Prosecution: Tardif waived or failed to preserve issue | Tardif: tendered instruction at conference; preserved for appeal | Preserved — tendering the instruction sufficed; court’s colloquy did not show intentional waiver |
| Self‑defense as an affirmative defense to conspiracy | Tardif: self‑defense applies to all charged crimes, including conspiracy | Prosecution: self‑defense not applicable to conspiracy | Self‑defense is not an affirmative defense to conspiracy (conspiracy does not require use of physical force); no instruction error affecting conspiracy conviction |
| Deadly force instruction in self‑defense | Prosecution: instruction appropriate | Tardif: court erred to instruct about deadly physical force where victim survived | Error — deadly physical force instruction improper because victim did not die; likely to recur on remand |
| Admission of slow‑motion video | Prosecution: slow‑motion useful to explain sequence and state of mind | Tardif: altered videos misrepresent events; unfairly prejudicial | Abuse of discretion under CRE 403; slow‑motion mostly cumulative and risked unfair prejudice about intent/state of mind |
| Prosecutorial misconduct in closing argument | Tardif: prosecutor invoked moral opinions and irrelevant social commentary | Prosecution: statements not plain error | Even if improper, not plain error as evidence supporting conspiracy verdict was strong; conspiracy affirmed |
Key Cases Cited
- People v. Villarreal, 131 P.3d 1119 (statutory requirement to instruct on heat of passion and prosecution's burden)
- Riley v. People, 266 P.3d 1089 (review of jury instructions considered together; de novo review)
- Martinez v. People, 344 P.3d 862 (preservation requires giving trial court meaningful chance to correct error)
- People v. Garcia, 113 P.3d 775 (improper lessening of prosecution's burden is not harmless)
- Cassels v. People, 92 P.3d 951 (provocation instruction warranted on any supporting evidence; review favoring defendant)
- People v. Pickering, 276 P.3d 553 (self‑defense as affirmative defense generally applies to crimes requiring intent)
- People v. Newell, 395 P.3d 1203 (constitutional error from failing to give an affirmative defense instruction requires harmless‑beyond‑a‑reasonable‑doubt analysis)