Instruction No. 4 advised the jury that "[t]here are no definitions that this Court can give to you to define 'great bodily harm' or 'bodily harm.'" Delacruz argues this misstatement implied to the jury that there was no meaningful distinction between the two terms and essentially encouraged the jury to react impulsively to the evidence of physical harm.By reversing on these grounds, the COA avoided what I am told are pretty significant issues of judicial misconduct and prosecutorial misconduct.
We agree. The district court affirmatively and erroneously misadvised the jury that the two terms could not be defined, contrary to well-established case law. Moreover, in considering whether a real possibility exists that the jury would have rendered a different verdict if the trial error had not occurred, we are swayed by the district court's own characterization of the evidence of "great bodily harm" as "thin." Finally, the effect of this error may have been compounded by the district court's failure to properly instruct the jury on misdemeanor battery. As discussed above, the district court should have instructed the jury that simple battery consisted of "intentionally or recklessly causing bodily harm" instead of "intentionally caus[ing] physical contact with another person when done in a rude, insulting or angry manner."
[Update: the state did not file a PR and the mandate issued on February 25, 2010.]