May 20, 2019

Colorado Supreme Court: Court of Appeals Misconstrued Meaning of “Deadly Physical Force”

The Colorado Supreme Court issued its opinion in People v. Opana on Tuesday, May 30, 2017.

Criminal Trials.

The People petitioned for review of the court of appeals’ judgment reversing Opana’s conviction for second degree murder in the shooting death of one of his housemates. See People v. Opana, No. 10CA1987 (Colo. App. May 29, 2014). The district court instructed the jury as to the use of deadly physical force in defense of one’s person. In consideration of the statutory definition of the term “deadly physical force,” which limits the applicability of the term to “force, the intended, natural, and probable consequence of which is to produce death,” the court of appeals determined that there was adequate evidence produced at trial for the jury to have found that Opana used physical force not rising to the level of “deadly” physical force, and it concluded that in this case the failure of the trial court to instruct the jury, sua sponte, on the use of physical force generally amounted to plain error.

The supreme court reversed the judgment of the court of appeals and remanded the case for consideration of defendant’s remaining assignments of error because the court of appeals misconstrued the definition of “deadly physical force,” and when that statutory term is properly construed, the evidence at trial did not support an instruction on self-defense predicated on the use of other-than-“deadly” physical force.

Summary provided courtesy of The Colorado Lawyer.

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