dissenting.
I respectfully dissent.
The question of voluntariness of a confession is, for purposes of admissibility, in the first instance, a question of law reserved to the court. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Compton v. People, 166 Colo. 419, 444 P.2d 263 (1968). Although an instruction defining terms used in an instruction is not always required, the court must define those phrases which have been given a distinctive meaning by law, so that the jury is able to apply the law to the facts of the case. See Pueblo Bank & Trust Co. v. McMartin, 31 Colo.App. 546, 506 P.2d 759 (1972).
If the jury thereafter is asked to evaluate the facts and determine whether the People have met their burden of proving the statements were voluntarily made, it is incumbent upon the court to define those principles of law by which the facts will be weighed.
The word “voluntary,” as used in the court’s instruction, requires further explanation. As the Supreme Court noted in Schneckloth v. Bustamonte, 412 U.S. 218, 224, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854, 861 (1973).
“[The] cases yield no talismanic definition of ‘voluntariness,’ mechanically applicable to the host of situations where the question has arisen. ‘The notion of “voluntar-iness” ’ Mr. Justice Frankfurter once wrote, ‘is itself an amphibian.’ It cannot be taken literally to mean a ‘knowing’ choice. ‘Except where a person is unconscious or drugged or otherwise lacks capacity for conscious choice, all incriminating statements — even those made under brutal treatment — are “voluntary” in the sense of representing a choice of alternatives .... ’ It is thus evident that neither linguistics nor epistemology will provide a ready definition of the meaning of ‘volun-tariness.’ ”
The instruction offered by defendant correctly states the law as it applies to the facts of this case. See Brady v. U.S., 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); People v. Quintana, 198 Colo. 461, 601 P.2d 350 (1979).
Because the trial court’s instructions do not adequately instruct the jury on what, in law, must be considered in determining whether the People have met their burden in establishing that the contested confessions were voluntary, and because this issue was material to defendant’s theory of defense, I would reverse the judgment of conviction and remand for a new trial.