Background
Following a June 2020 protest in downtown Denver, a shirtless, heavily tattooed man allegedly struck two people with a hatchet in a parking lot after an earlier struggle over a backpack. One victim sustained a large head wound; the other suffered severe facial injuries. About 15 minutes later, the alleged attacker swung the hatchet at another group, was shot, and was later identified as Efren Anthony Martinez.
A jury convicted Martinez of two counts of attempted first degree murder and first and second degree assault. The trial court merged the assault convictions into the attempted-murder convictions and imposed consecutive 48- and 40-year prison terms. Martinez challenged the prosecutors’ arguments, a detective’s narration of surveillance footage, and the attempted-murder instructions.
The Court’s Holding
The Colorado Court of Appeals rejected Martinez’s claims of reversible prosecutorial misconduct. The challenged descriptions of the attacks and injuries were tied to the evidence, and the prosecutors’ requests that jurors reach the “right result” and hold Martinez accountable were made in the context of applying the evidence to the law. One inartful opening-statement remark was not reversible under plain-error review.
The court also found no plain error in allowing a detective to testify about the surveillance video. But it held that the attempted first degree murder instructions plainly erred by requiring the jury to find only that Martinez “knowingly” took a substantial step. Attempted first degree murder requires that the defendant act after deliberation and with intent to kill. Because the jury’s questions showed confusion over that distinction, the court reversed the two attempted-murder convictions and remanded for retrial on those counts. It affirmed the assault convictions.
Key Takeaways
- An attempted first degree murder instruction must require proof that the defendant acted after deliberation and with intent to kill, not merely knowingly.
- Juror questions highlighting confusion about the mental-state element can demonstrate that an erroneous instruction was substantial plain error.
- The prosecution could not obtain entry of attempted second degree murder convictions on remand where that lesser offense was not submitted to the jury and would have involved a heat-of-passion issue.
Why It Matters
The decision underscores that attempt instructions must carry forward the precise culpable mental state of the target offense. Substituting a lower mens rea for the required intent element can require a new trial even absent a contemporaneous objection.
The court also declined to cure the instructional error by allowing the prosecution to elect a lesser-included conviction after trial, preserving the jury’s role in deciding offenses and applicable mitigating circumstances.