Homicide and Hearsay: the Relationship Between Statements and Lesser Offenses
| Publication year | 1993 |
| Pages | 1241 |
1993, June, Pg. 1241. Homicide and Hearsay: The Relationship Between Statements and Lesser Offenses
Homicides are rarely "all or nothing" cases. Usually, the prosecution seeks a conviction for first- or second-degree murder, while the defense argues for either manslaughter or criminally negligent homicide. Often, the act of the killing is not in dispute: only the mental state of the defendant is at issue. Major legal battles are waged over the accused's reported statements before, during and after the killing as they relate to the accused's state of mind.
In a prosecution for first-degree murder, the defense is entitled to a jury instruction on the lesser included offenses of second-degree murder and criminally negligent homicide and the lesser non-included offense of manslaughter(fn1) where there exists the slightest credible evidence, no matter how "improbable, unreasonable or slight," which tends to suggest that the defendant acted with a mental state other than intentional and after deliberation.(fn2) The defendant's hearsay statements will often be the only evidence the defense has on which to base an argument that lesser offenses must be submitted to the jury.
In People v. Garcia,(fn3) the Colorado Supreme Court recognized that a defendant would be entitled to a "lesser" instruction based solely on an out-of-court statement by the defendant if that statement met the "improbable, unreasonable or slight" standard. However, because of the defendant's recantation of the statement, the trial court had not erred in refusing to give the defense's instruction on lesser included offenses.
In Garcia, the defendant was charged with second-degree murder in connection with the stabbing death of his lover. The defendant gave an initial videotaped statement in which he claimed an unknown intruder stabbed the victim. Seven days later, the defendant was again interrogated and claimed that he had a bitter argument with the victim, went to the kitchen, got a knife to stab himself and accidentally stabbed her as they wrestled over the weapon.
At trial, the defendant returned to his initial version of events and claimed the intruder had committed the crime. He testified that his second statement to the police was a fabrication. The defense sought an instruction on heat-of-passion manslaughter predicated on the second statement. The trial court refused the instruction. The Colorado Court of Appeals reversed the conviction, finding that the second statement contained sufficient evidence to warrant a heat-of-passion instruction.
On certiorari, the Colorado Supreme Court observed that the only evidence which could possibly justify the heat-of-passion instruction was the second statement. The court recognized that as a general rule, a defendant is entitled to a manslaughter instruction in a homicide case where there is any credible evidence, no matter how "improbable, unreasonable or slight," which...
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