dissenting:
I join in Justice Neighbors’ dissent and add a few remarks by way of emphasis.
The majority correctly notes that the “central issue at trial was whether Key killed Shadday after deliberation.” Majority op. at 321. The judge properly instructed the jury in Instruction No. 14 that the term “after deliberation” includes the requirement that “the decision to commit the act has been made after the exercise of reflection and judgment concerning the act.” However, the judge then incorrectly instructed the jury in Instruction No. 15 that “[t]he only time requirement for deliberation within the meaning of the first degree murder statute is an interval sufficient for one thought to follow another.” This latter instruction erroneously and importantly diluted the prior instruction on the need for reflection and judgment.
The majority concedes that Instruction No. 15 was in error, but holds that the error was harmless beyond a reasonable doubt. The majority finds that an appreciable length of time must have elapsed in each of the intervals between the various attacks by Key upon Shadday and goes on to find that in each period Key had sufficient time to deliberate whether to kill *325Shadday. Majority op. at 324. Equally consistent with the evidence, I believe, is that the first two shots were fired in the course of a fight and without deliberation, as the majority is willing to assume, and thereafter Key engaged in a series of attacks upon Shadday in a frenzy born of panic. But it is not for an appellate court to draw these inferences one way or another. This is the role of a properly instructed jury. Here, not only was the instruction on deliberation, the “central issue at trial,” in error, but the jury was so concerned about the existence of deliberation that in the course of its efforts to arrive at a verdict, it sought additional guidance from the court, without success. Thus, a serious question concerning the degree of Key’s culpability was left for determination by a jury that had been erroneously instructed on the controlling legal standard and that had demonstrated its difficulty in resolving the issue by requesting a clarifying instruction. This is not the stuff of which harmless error is made. I dissent.
I am authorized to say that Chief Justice QUINN joins in this dissent.
NEIGHBORS, Justice,dissenting:
I agree with the court’s holding that Instruction No. 15 was constitutionally deficient. However, I disagree that the constitutional error was harmless beyond a reasonable doubt. Therefore, I respectfully dissent.
I will first fully explicate my reasons for concluding that the erroneous definition of “after deliberation” contained in Instruction No. 15 is an error of constitutional magnitude. I will then explain why I believe the error is not harmless beyond a reasonable doubt.
I.
Under the due process clause of the fourteenth amendment to the United States Constitution an accused may not be convicted of a criminal offense “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). The prosecution’s burden includes proving beyond a reasonable doubt that the defendant possessed the culpable mental state required by the applicable statute. People v. Mattas, 645 P.2d 254, 257 (Colo.1982). It is the duty of the trial court to properly instruct the jury on all matters of law, and instructions which fail to correctly define the elements of an offense charged, so that the jury may decide whether they have been established beyond a reasonable doubt, are constitutionally deficient. Id.
In analyzing the effect of a particular instruction, an appellate court must examine the jury instructions in their entirety. Mattas, 645 P.2d at 258. Instructions which, taken as a whole, are confusing or which permit the jury to find the defendant guilty upon a showing by the prosecution of a lesser degree of culpability than required by the statute are not adequate. See id. at 259 (“The rule applied in ... this case is that the jury must be clearly instructed as to the mental state applicable to a crime.”) (emphasis in original).
The Supreme Court recently addressed the due process implications of conflicting instructions pertaining to the element of intent in a homicide case. In Francis v. Franklin, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), a prisoner shot and killed the resident of a nearby home while attempting to escape from custody after receiving treatment at a local dentist’s office. The respondent prisoner had demanded the keys to the victim’s car. As the victim was slamming his front door shut, the respondent’s gun discharged. The bullet pierced the wooden door and struck the victim, inflicting a fatal chest wound.
The respondent was tried on a charge of malice murder. His sole defense was the lack of the requisite intent to kill, claiming that the homicide was an accident. Due to the ambiguous nature of the jury instruction on the pivotal issue of intent, the jury requested reinstruction on the intent element and the definition of accident. The *326jury returned a guilty verdict, and the respondent was sentenced to death. The Supreme Court held that the instruction on intent, when read in the context of the jury charge as a whole, violated the fourteenth amendment’s due process requirement that the state prove each element of a criminal offense beyond a reasonable doubt.1
The precise issue before the Court was “whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of ... state of mind by creating a mandatory presumption of in-tent_” Francis v. Franklin, 105 S.Ct. at 1971 (citations omitted). The Court found that, standing alone, the challenged language undeniably created an unconstitutional burden-shifting presumption with respect to the element of intent. It then examined the jury instructions taken as a whole to ascertain whether there was sufficient clarifying language to explain the proper allocation of the burdens of proof and persuasion. The Court determined that the charge could be read as instructing the jury that it was required to infer the intent to kill as a natural and probable consequence of the act of firing the pistol unless the respondent persuaded the jury that such an inference was unwarranted. Because a reasonable juror could have interpreted the challenged portions of the jury instructions as creating a mandatory presumption that shifted the burden of persuasion on the crucial element of intent to the defendant, the Court held that the critical instruction on intent and the instructions as a whole did not “comport with the requirements of the Due Process Clause.” Francis v. Franklin, 105 S.Ct. at 1977.
The legal issue in the case before us is strikingly similar to that involved in Francis v. Franklin. In each of these cases, the theory of the defense was a lack of the requisite intent to kill. Both involved ambiguous jury instructions on the dispositive issue of intent. Both jury charges arguably had the effect of permitting the jury to find the defendant guilty upon a showing by the prosecution of a lesser degree of culpability than that required by the applicable statute. The jury in each case requested reinstruction on the intent element.
Thus, as in Francis v. Franklin, it is not clear that the instructions, taken as a whole, informed the jury that it could convict the defendant of first-degree murder only if the prosecution proved beyond a reasonable doubt that Key’s intent to kill his friend was formed after the exercise of reflection and judgment and not in a hasty or impulsive manner. Confronted with the erroneous language in Instruction No. 15 that deliberation may occur in an “interval sufficient for one thought to follow another,” a reasonable juror could easily have read these words as contradicting the preceding instruction, which correctly stated that an act committed after deliberation is never one which has been committed in a hasty or impulsive manner. “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” Francis v. Franklin, 105 S.Ct. at 1975 (1985) (footnote omitted). “If ... two instructions are in direct conflict on the requisite culpable mental state, and one of the instructions is an incorrect and clearly prejudicial statement of law, the fact that the other instruction contains a correct statement of law cannot cure the error.” People v. Riley, 708 P.2d 1359, 1365 (Colo.1985).
With inconsistent and conflicting instructions to guide its deliberations, the jury *327could not properly evaluate the evidence to determine whether the prosecution had met its burden of proof on the element of “after deliberation.” Because the instructions, taken as a whole, obfuscated that crucial element, the jury instructions were constitutionally deficient.
II.
Pursuant to Crim.P. 52(a) any “error ... which does not affect substantial rights” of the defendant shall be disregarded. Before an instructional error of constitutional dimension can be held harmless, “the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, reh’g denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967). See also Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983);2 People v. Mascarenas, 666 P.2d 101 (Colo.1983). In applying the harmless-constitutional-error rule, a reviewing court must assess the error in light of the facts of the ease to determine whether the error affected the outcome of the trial. See Graham v. People, 705 P.2d 505 (Colo.1985).
In Francis v. Franklin, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), the Supreme Court affirmed the decision of the Circuit Court of Appeals for the Eleventh Circuit which held that the instructional error was not harmless beyond a reasonable doubt. The court of appeals had earlier stated: “Here, Franklin admitted that he fired the gun and killed Mr. Collie. His only defense was that he did not have the requisite intent to kill. The facts did not overwhelmingly preclude that defense.” Francis v. Franklin, 720 F.2d 1206, 1212 (11th Cir.1983). The Supreme Court upheld the court of appeals’ conclusion that the evidence of intent was far from overwhelming, noting that the jury requested rein-struction on the elements of malice and accident.
Although the evidence against the defendant in this case is substantial, I am persuaded that the prosecution has failed to prove beyond a reasonable doubt that the erroneous instruction was harmless.3 The element of “after deliberation” was the crucial factor in the prosecution's case against the defendant for first-degree murder since the defendant admitted that he committed the homicide but claimed that it was done during a fistfight provoked by the victim. The facts adduced at trial do not overwhelmingly preclude the defendant’s theory of the case.4
*328The evidence indicated that the victim was upset about having been asked to move into another barracks. Key and Shadday frequently drove into the mountains to practice target shooting, and on May 14 brought along a twelve-pack of beer when they went to engage in that activity. Key and Shadday drank all but one of the bottles of beer before an argument developed between the two over the room situation. The coroner testified that the victim had consumed as many as six or seven bottles of beer before his death.
Shadday, whom Johnson described as having a quick temper and being tougher than Key, struck Key first and a fistfight developed between the two men. Key told Johnson that Shadday “had him on the ground.” While Shadday was on top of the defendant and refused to stop hitting him on the head, Key shot the victim. In the coroner’s opinion, the fresh bruises on the victim’s left hand could have been caused by a fistfight. Johnson testified that Key’s statement that he could take his friend into the mountains and shoot him did not alarm him because it did not appear to Johnson as though Key planned to kill Shadday. Johnson also admitted to having a poor memory when defense counsel cross-examined him about the discrepancies in the various versions of his conversation with Key given to other people.
Under the evidence presented and in light of the jury’s request for clarification on the element of deliberation, the jury, if it had been correctly instructed, could have found that the prosecution failed to prove beyond a reasonable doubt that the defendant killed the victim after deliberation. See Chapman, 386 U.S. at 25-26, 87 S.Ct. at 828-829 (“And though the case ... presented a reasonably strong ‘circumstantial web of evidence’ against petitioners, ... it was also a case in which, absent the constitutionally forbidden comments, honest, fair-minded jurors might very well have brought in not-guilty verdicts.”). By giving the Van Houton definition of “after deliberation,” the trial court presented the jury with irreconcilable statements concerning that element of first-degree murder. “A conviction cannot be permitted to rest on such an equivocal direction to the jury on one of the basic elements of the crime.” People v. Riley, 708 P.2d at 1366. In view of the significance of this element to the crime charged, the court’s error was not harmless beyond a reasonable doubt. See id.
In Francis v. Franklin, 105 S.Ct. at 1976 n.8, the Supreme Court concluded that the appropriate remedy in such a case was to set aside the guilty verdict. It stated:
The Court today holds that contradictory instructions as to intent ... create a reasonable likelihood that a juror understood the instructions in an unconstitutional manner, unless other language in the charge explains the infirm language sufficiently to eliminate this possibility. If such a reasonable possibility of an unconstitutional understanding exists, “we have no way of knowing that [the defendant] was not convicted on the basis of the unconstitutional instruction.” Sandstrom [v. Montana], 442 U.S. [510] at 526 [99 S.Ct. 2450, 2460, 61 L.Ed.2d 39]. For this reason, it has been settled law since Stromberg v. California, 283 U.S. 359 [51 S.Ct. 532, 75 L.Ed. 1117] (1931), that when there exists a reasonable possibility that the jury relied on an unconstitutional understanding of the law in reaching a guilty verdict, that verdict must be set aside. See Leary v. United States, 395 U.S. 6, 31-32 [89 S.Ct. 1532, 1545-1546, 23 L.Ed.2d 57] (1969); Bachellor v. Maryland, 397 U.S. 564, 571 [90 S.Ct. 1312, 1316, 25 L.Ed.2d 570] (1970).
(Parallel citations omitted.) (Emphasis in original.)
Finally, the conclusion implicit in the majority opinion is that the trial court erred in instructing the jury on the lesser included offenses of second-degree murder and voluntary manslaughter.5 The majority de*329scribes the brutality of the killing-in great detail and concludes that the evidence of deliberation was overwhelming. However, a properly instructed jury could have found that very evidence to be inconsistent with a homicide committed after reflection and judgment. If there is any evidence whatever which tends to support a conviction on a lesser included charge, the court is required to so instruct the jury, no matter how slight or unpersuasive that evidence may be. People v. Jones, 711 P.2d 1270 (Colo.1986); People v. Shaw, 646 P.2d 375 (Colo.1982). Since the jury was properly instructed on the lesser included offenses, I am totally unpersuaded that a constitutionally deficient instruction on the critical element of intent in a first-degree murder case can be characterized as harmless error beyond a reasonable doubt.
Accordingly, I would reverse the judgment and remand to the court of appeals with instructions to vacate the conviction and remand the case to the district court for a new trial.
I am authorized to say that Chief Justice QUINN and Justice LOHR join me in this dissent.
. The trial court instructed the jury that the acts of a person of sound mind are presumed to be the product of a person’s will, but the presumption may be rebutted; that a person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted; and that a person will not be presumed to act with criminal intention but the trier of facts may find such intention upon a consideration of the words, conduct, demeanor, motive and all of the circumstances connected with the act for which the accused is prosecuted. Francis v. Franklin, 105 S.Ct. at 1970.
. Because the trial court’s error was not harmless, I will not address the suggestion in Connecticut v. Johnson that some instructional errors of constitutional dimensions should not be analyzed for harmlessness. 460 U.S. at 83, 103 S.Ct. at 976. See also People v. Etchells, 646 P.2d 950, 951 (Colo.App.1982) (“The giving of an instruction which allows the jury to find the defendant guilty upon a lesser degree of culpability than that required by the statute constitutes plain error_ The weight of the evidence tending to show actual awareness cannot be used to justify a jury conviction which may be based upon the lesser degree of culpability.”).
. Compare People v. Blair, 195 Colo. 462, 579 P.2d 1133 (1978) (although a particular jury instruction contained erroneous language, the error did not constitute reversible error because the instructions taken as a whole adequately informed the jury of the culpable mental state required by the statute and there was also overwhelming evidence that the defendant knowingly committed the acts for which he was convicted).
.The trial court gave the following jury instruction tendered by the defendant:
Instruction No. 18. It is the contention of the defense in this case that Kipling Key is not guilty of the offense of Murder in the First Degree, but is, instead, guilty of Manslaughter. The defense admits that Kipling Key killed the victim but contends that the killing was not "after deliberation” because the evidence has not shown beyond a reasonable doubt that Key made a decision to kill the victim after the exercise of reflection and judgment concerning the act. The defense claims that the evidence shows instead that the killing was committed in a hasty and impulsive manner, provoked by an argument and fight with the victim.
If, after considering all of the evidence, you have a reasonable doubt that the killing was committed after deliberation, your verdict must be not guilty of Murder in the First Degree.
. The elements of second-degree murder and manslaughter were enumerated in Instruction No. 16, which stated: *329A person commits the crime of Murder in the Second Degree if:
He causes the death of a person knowingly, but not after deliberation.
The elements of Murder in the Second Degree are therefore:
(1) Knowingly, but not after deliberation,
(2) Causing the death of a person.
A person commits the crime of Manslaughter if:
He knowingly causes the death of another person under circumstances where the act causing the death was performed, not after deliberation, upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person killing sufficiently to excite an irresistable passion in a reasonable person; but if between the provcation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the killing is murder.
The elements of Manslaughter are therefore:
(1) Knowingly
(2) Causing the death of another
(3) Under circumstances where the act causing the death was performed:
(a) Not after deliberation
(b) Upon a sudden heat of passion
(c) Caused by a serious and highly provoking act of the intended victim, and
(d) Affecting the person killing sufficiently to excite an irresistable passion in a reasonable person.
(4) But if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the killing is murder.