The Colorado Supreme Court heard oral arguments last week in People v. Ray, a death penalty case concerning the language of instructions given to the jury that qualify the availability of self-defense and whether it erroneously shifts the burden of proof.
In 2004, Robert Ray was on probation for prior drug and vehicle theft charges. He was pulled over for speeding and driving recklessly. He did not comply when asked to step out of the car and at one point placed his hand out of sight and appeared to the officers to be reaching for something. He was pulled out of the car and arrested. Upon further search, police found a BB gun in the glove compartment and a firearm in one of the door’s side panels. He was charged with possession of a weapon by a previous offender and convicted.
Also in 2004, a separate altercation at a concert led to Ray shooting two individuals — Elvin Bell and Javad Marshall-Fields. Key prosecution witness Jeremy Green testified that during the fight, he heard Ray say, “I’ll kill all of you, I’ll kill everybody.”
Bell’s brother Greg Vann tried to break up a fight when Sir Mario Owens, a friend of Ray’s, shot and killed Vann. Ray shot Bell and Fields to escape the situation. Ray was charged with and convicted of accessory to murder, two counts of attempted murder and two counts of first-degree assault. Prior to that trial in 2005, Owens killed Marshall-Fields and his fiancée Vivian Wolfe. The Court of Appeals opinion stated that the “evidence established that Ray orchestrated the killings.”
Ray was charged with first-degree murder for the killing of Marshall-Fields and Wolfe, and was sentenced to death. The POWPO conviction played a role in the decision to administer a capital punishment charge. A jury acquitted Ray of the murder of Vann and attempted murder of Green. The attempted murder charge against Ray for shooting Bell also factored into the death sentence.
Ray testified that during the fight, he believed Bell was going to kill Owens and that he feared for his life, and that was why he shot him. Ray argued that the Supreme Court holding in People v. Janes, dealing with jury instruction on self-defense, was not properly applied because “the self-defense instructions imposed conditions precedent on the application of the affirmative defense of self-defense and thereby erroneously shifted the burden to the defense.”
The trial court determined there was enough evidence to warrant an affirmative defense instruction. In these cases, the burden lies with the prosecution to disprove the defense. In this case instruction 25 told the jury that Ray’s beliefs about Bell could be reasonable only if the jurors “determined that Ray acted as a reasonable and prudent person would have acted under like circumstances” and “could say that Ray, ‘as a reasonable person,’ had grounds for his belief that he or another was in danger.”
Several justices pushed back on the analogy drawn between Ray’s case and the holding in Janes concerning the language of instruction 25.
“What in that language suggests burden shift? Why isn’t instruction 25 just definitional?” Justice Richard Gabriel asked. “You read other instructions, they talk about you have reasonable grounds, then instruction 25 defines what reasonable grounds are, and at some level jury has to make a finding whether the prosecution beyond a reasonable doubt has the lack of applicability of self-defense. That’s a finding arguably, right?”
Ray’s attorney Gail Johnson argued that in order for instruction 25 to be accurate, it would have included a reminder and a cross-reference to instruction 22 which concerned the prosecution’s burden of proof.
Johnson also argued that the Supreme Court’s holding in People v. DeBella was violated, regarding allowing the jury unfettered access to the video testimony of Green.
Green’s testimony that Ray exhibited an intent to kill placed more significance on the first degree murder charges and consequential death sentence.
Attorney for the state John Lee argued that the Janes precedent does not apply in Ray’s case, and that all affirmative defenses have conditions precedent.
“That argument is wrong, it’s invited, it’s moot and it’s harmless,” Lee said.
He argued that self-defense has more conditions than any other affirmative defenses, including not being an initial aggressor or being found to have provoked the situation. Lee argued that the sentence structure can only be read to infer there was no conflict.
“How did the defense ask that this burden of proof instruction be incorporated into instruction 25?” Chief Justice Nancy Rice asked.
Lee said that the defense did not have an objection to that and reiterated that the standard in Janes was not applicable in Ray’s case.
“Even if somehow there was conflict between general burden of defense instruction and instruction 25, the elemental instruction restating burden of proof as to all instructions on self-defense, that again put it squarely back on the people. That would’ve broken any tie or conflict,” Lee said.
— Kaley LaQuea