Peo v. Hammond

23CA0294 Peo v Hammond 02-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0294
City and County of Denver District Court No. 21CR4815
Honorable Jay S. Grant, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Garrett M. Hammond,

Defendant-Appellant.

JUDGEMENT AFFIRMED

Division IV
Opinion by JUDGE HARRIS
Grove and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 20, 2025

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Zoe Bernstein, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Garrett M. Hammond, appeals the judgment of

conviction entered on jury verdicts finding him guilty of third degree

assault and possession of an illegal weapon. He contends that the

trial court erred by including permissive language in certain of the

jury instructions. We affirm.

I. Background

¶2 After Hammond assaulted the victim at a bus stop, the

prosecution charged him with second degree assault and

possession of an illegal weapon (metallic knuckles).

¶3 At trial, Hammond did not dispute that he had assaulted the

victim — there were multiple witnesses, one of whom captured

some of the assault on video. Nor did he seriously contest his

possession of metallic knuckles — those were recovered from his

pocket when he was arrested shortly after the assault. Instead, he

argued that he acted in self-defense (as evidenced in part by the fact

that he did not use the readily accessible metallic knuckles).

¶4 During the jury instruction conference, defense counsel

objected to the model reasonable doubt instruction and two of the

model elemental instructions on the ground that they used

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permissive language — i.e., they said that if the prosecution failed

to prove the elements of the offenses beyond a reasonable doubt,

the jury “should” — rather than “must” — find Hammond not

guilty. The trial court declined to deviate from the model

instructions.

¶5 Accordingly, the court instructed on reasonable doubt, in

relevant part, as follows:

If you find from the evidence that each and
every element of a crime has been proven
beyond a reasonable doubt, you should find
the Defendant guilty of that crime. If you find
from the evidence that the prosecution has
failed to prove any one or more of the elements
of a crime beyond a reasonable doubt, you
should find the Defendant not guilty of that
crime. (Emphasis added.)

The elemental instructions for second and third degree assault and

possession of an illegal weapon contained the same “should”

language. The self-defense instruction, however, used the word

“must” — it said that if the jury decided that the prosecution had

failed to disprove self-defense beyond a reasonable doubt, the jury

“must return a verdict of not guilty” on the applicable counts.

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¶6 The jury acquitted Hammond of second degree assault, but it

rejected his self-defense claim and found him guilty of the lesser

included offense of third degree assault and of possession of

metallic knuckles.

II. Jury Instructions

¶7 Hammond contends that the instructions’ inclusion of

“should” rather than “must” lowered the prosecution’s burden of

proof. We disagree.

A. Standard of Review

¶8 Consistent with a criminal defendant’s constitutional rights,

the jury must be instructed that it can return a guilty verdict only if

the prosecution proves every element of the charged offense beyond

a reasonable doubt. See People v. Munoz, 240 P.3d 311, 316 (Colo.

App. 2009). An instruction that lowers the prosecution’s burden of

proof constitutes structural error. Tibbels v. People, 2022 CO 1,

¶ 22.

¶9 We review de novo whether the trial court correctly instructed

the jury, including whether its instructions lowered the

prosecution’s burden of proof. Id. In conducting this review, we

consider the jury instructions in context and as a whole to
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determine whether there is a “reasonable likelihood that the jury

applied the contested instruction in an unconstitutional manner.”

Johnson v. People, 2019 CO 17, ¶ 14.

B. Analysis

¶ 10 A division of this court has rejected the argument Hammond

raises on appeal. In Munoz, after surveying Colorado and out-of-

jurisdiction case law, the division reasoned that “the common

meaning of ‘should’ conveys an obligatory command and not a

permissive request.” 240 P.3d at 317. Therefore, the division

concluded that the same elemental instructions at issue here

“clearly informed the jury of its obligation to find defendant not

guilty of the charged offenses if the prosecution did not prove every

element . . . beyond a reasonable doubt.” Id.

¶ 11 Hammond raises three arguments to counter Munoz. First, he

says that the meaning of “should” has become less obligatory over

time, implying that Munoz’s holding has lost some of its

precedential force. But our case law has remained consistent. See,

e.g., People v. Waller, 2016 COA 115, ¶ 72 (The “use of the term

‘should’ does not grant the jury . . . discretion . . . and is no less

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obligatory than the use of the word ‘will’ in the reasonable doubt

instruction.”). Other courts also continue to use “should” in its

obligatory sense. See, e.g., United States v. Dingle, 862 F.3d 607,

611-12 (7th Cir. 2017) (rejecting the defendant’s argument that the

elemental instructions, which used “should” instead of “must,”

lowered the prosecution’s burden of proof); see also Willingham v.

Mullin, 296 F.3d 917, 929 (10th Cir. 2002) (“[T]he Supreme Court

has never indicated that the mandatory force inherent in the term

‘should’ is insufficient to properly guide a jury’s application of the

reasonable doubt standard.”).1

¶ 12 Second, Hammond says that Munoz is distinguishable

because, in that case, the initial reasonable doubt instruction told

the jury that it “will find the defendant not guilty” if the prosecution

failed to meet its burden of proof, 240 P.3d at 318, and here, all of

the relevant instructions used “should.” But the Munoz division

1 We acknowledge that many courts use the word “must” in their

pattern instructions, “but that does not mean that ‘should’ is
incorrect.” United States v. Dingle, 862 F.3d 607, 612 (7th Cir.
2017). At the same time, we see nothing wrong with instructing the
jury that if it decides that the prosecution failed to meet its burden,
it must find the defendant not guilty.
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essentially determined that in this context, “should” and

“will”/“must” are interchangeable, so its holding did not turn on the

fact that one instruction used the word “will.” Id. at 317-18.

¶ 13 Third, Hammond points to the different language in the

general reasonable doubt and elemental instructions on the one

hand and the self-defense instruction on the other. He says that

because the self-defense instruction used the word “must,” but the

other instructions used the word “should,” the jury likely believed

that, except in the self-defense context, acquittal was discretionary

even if the prosecution failed to meet its burden.2 But as we have

just noted, the instructions in Munoz also used different terms and,

nonetheless, the division concluded that the jury would understand

“should” to mean “must.” Id. at 317.

¶ 14 We adopt the Munoz division’s view that jurors reading these

instructions would not “have interpreted the word ‘should’ to mean

that they could base their decision on their own discretion or that

2 Because the jury acquitted Hammond of second degree assault,

and he did not dispute that he had committed third degree assault,
the case turned entirely on self-defense. And that instruction used
the word “must.” Therefore, even under Hammond’s own
argument, the prosecution’s burden was not lowered in this case.
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they were free to find [Hammond] guilty even if the prosecution did

not meet its burden of proof.” Id. at 318-19; see also Torrence v.

State, 574 So. 2d 1188, 1189 (Fla. Dist. Ct. App. 1991) (explaining

that the word “should” is not permissive in this context because

“the instruction gives the jury only two choices” and thereby

conveys that “an acquittal is the jury’s only choice if they

entertain . . . a reasonable doubt”).

III. Disposition

¶ 15 The judgment is affirmed.

JUDGE GROVE and JUDGE PAWAR concur.

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