June 18, 2019

Colorado Court of Appeals: Defendant Charged with Criminal Mischief Entitled to Self-Defense Jury Instruction

On Thursday, January 24, 2019, the Colorado Court of Appeals issued its opinion in People v. Coahran.

Criminal Mischief—Affirmative Defense—Self-Defense—Use of Physical Force in Defense of Person.

Coahran and her ex-boyfriend had an argument during which Coahran kicked the ex-boyfriend’s car door, causing damages. Coahran was charged with criminal mischief. She argued in a pretrial conference that she had kicked the door in self-defense. The trial court determined that self-defense wasn’t available for her mischief charge because her use of physical force was directed at physical property rather than a person. Coahran was convicted of criminal mischief and ordered to pay restitution.

On appeal, Coahran asserted that the trial court improperly instructed the jury on self-defense. When an individual uses force to defend herself from the use or imminent use of unlawful physical force, she is allowed to take those actions that are reasonably necessary to do so. Therefore, a defendant charged with criminal mischief may be entitled to a jury instruction on self-defense as an affirmative defense under C.R.S. § 18-1-704(1) where a defendant is charged with a property crime, uses force to defend herself from the use or imminent use of unlawful physical force by another, and takes only those actions that are reasonably necessary to do so, whether those actions are upon the other person directly or indirectly. Here, according to Coahran’s testimony, the ex-boyfriend grabbed her wrist when she tried to walk away. She asked the ex-boyfriend twice to let her go, and he refused. Even though they were in a public parking lot, Coahran worried that the situation would escalate, so she kicked the car door in an effort to get away. Under these circumstances, there was sufficient evidence presented to support a self-defense instruction. Because the trial court didn’t properly instruct the jury on self-defense as an affirmative defense, the prosecution didn’t bear the burden of disproving self-defense, and Coahran was deprived of her right to possible acquittal on that ground. The court’s error was not harmless beyond a reasonable doubt.

Coahran also argued that the evidence was insufficient to support the damage amount necessary to sustain her conviction. The prosecution presented a repair shop estimate and the testimony of the ex-boyfriend and a police officer on the amount of damage to the car door. This evidence was sufficient to sustain Coahran’s conviction of felony mischief, and she may be retried on this charge.

The conviction was reversed, the restitution order was vacated, and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Unique Facts of Case Permit Use of Self-Defense Instruction for Robbery of Taxi Services

The Colorado Supreme Court issued its opinion in People v. DeGreat on Monday, October 15, 2018.

Self-Defense—Aggravated Robbery—Jury Instructions—Affirmative Defenses.

This case required the supreme court to decide whether a division of the court of appeals erred in concluding that the statutory right to self-defense can apply to justify a defendant’s robbery of taxi cab services. On the unique facts presented, the court concluded that the division correctly determined that defendant was entitled to a self-defense instruction as to the aggravated robbery charge, although the court’s reasoning differed from that on which the division relied. The court concluded that defendant presented some credible evidence to allow a reasonable jury to conclude that the robbery of services that he allegedly committed was committed in self-defense. Accordingly, the court affirmed the division’s judgment, albeit based on different reasoning.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Error in Denying Defendant His Tendered Self-Defense Instruction Not Harmless

The Colorado Court of Appeals issued its opinion in People v. Koper on Thursday, September 20, 2018.

Criminal Law—Jury Instructions—Self-Defense—Transferred Intent—Affirmative Defense—Prosecutorial Misconduct.

While at a bar, defendant said something to Abram’s sister that offended Abram. Defendant tried to make amends by offering Abram a beer. Abram responded by punching defendant twice in the face. Defendant then drew his firearm, for which he had a concealed carry permit, and aimed it at Abram. After a short standoff, defendant handed the gun to his fiancée and the two left the bar. A jury found defendant guilty of two counts of felony menacing and prohibited possession of a firearm. The first count of felony menacing named the alleged victim as a security guard who had stepped between defendant and Abram after defendant drew his weapon; the second count named the alleged victim as another bar patron who had been sitting near Abram.

On appeal, defendant contended that the trial court erred in rejecting his jury instructions on the affirmative defense of self-defense. Here, defendant raised credible evidence that he acted in self-defense against Abram. Defendant’s intent to defend himself against Abram would, if the jury believed his testimony, allow the intent as to Abram to transfer to the encounter with the alleged victims. Thus, the trial court erred in rejecting defendant’s jury instructions on self-defense as an affirmative defense to the menacing charges. Further, the error was not harmless because while the defense’s theory of the case instruction referred generally to self-defense, the instruction did not require the prosecution to disprove self-defense beyond a reasonable doubt.

Defendant also contended that prosecutorial misconduct required reversal of his conviction for possession of a firearm while intoxicated. Here, the prosecutor asked defendant 44 times whether another witness’s testimony was incorrect, wrong, or untrue, or whether the witness had lied; this went beyond asking non-prejudicial questions designed to highlight discrepancies in the evidence. The error was plain and warranted reversal.

The judgment was reversed and the case was remanded for a new trial on all charges.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Person Acting in Self-Defense Has No Duty to Retreat

The Colorado Court of Appeals issued its opinion in People v. Monroe on Thursday, August 8, 2018.

Criminal Law—Self-Defense—Duty to Retreat—Jury Instructions—Prosecutorial Misconduct.

Monroe boarded a city bus and sat down next to Faulkenberry. The two almost immediately began to argue. Eight to 10 minutes after the dispute began, Monroe stabbed Faulkenberry in the neck. At trial, Monroe did not testify, but her counsel asserted that Monroe had been acting in self-defense. During closing and rebuttal arguments, the prosecution made several references to Monroe’s ability to retreat from the situation. Defense counsel’s objections to these statements were overruled. The jury was formally instructed regarding the duty to retreat. Monroe was convicted of attempted first degree murder and first degree assault. The trial court adjudicated her a habitual criminal and sentenced her to concurrent prison terms of 96 years on the attempted murder count and 48 years on the assault count.

On appeal, Monroe argued that the trial court committed reversible error when it permitted the prosecution to argue that the jury should consider Monroe’s failure to retreat when deciding whether she had acted in self-defense. A person who reasonably perceives an imminent use of unlawful physical force by another may use force in defending himself or herself without first retreating and does not have to consider whether a reasonable person in the situation would choose to retreat rather than to resort to physical force in defense. Here, the prosecution raised the issue of the availability of retreat five times during its closing and rebuttal arguments, and the prosecution’s argument inappropriately imposed a duty to retreat. The trial court permitted the jury to believe that it could consider whether a reasonable person would have retreated, in direct contravention of its instruction that no such duty exists. Thus, the trial court abused its discretion. Further, although the court and the prosecutors themselves repeatedly stated that Monroe had no duty to retreat, there was a reasonable probability that the jury was misled and that the misleading arguments contributed to the verdict, so the error was not harmless.

The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Trial Court Erred in Instructing Jury on Initial Aggressor Exception to Self-Defense With No Supporting Evidence

The Colorado Supreme Court issued its opinion in Castillo v. People on Monday, June 25, 2018.

Self-Defense—Initial Aggressor—Jury Instructions.

Defendant fired a gun at several people in a parking lot. He asserted that he did this in self-defense. Over defendant’s objection, the trial court instructed the jury on two exceptions to the affirmative defense of self-defense: initial aggressor and provocation. The jury convicted defendant of several criminal charges. The supreme court concluded the division of the court of appeals erred when it determined that the trial court correctly instructed the jury on the initial aggressor exception to self-defense. The court further concluded the error was not harmless in light of the prosecution’s repeated references to the initial aggressor exception during closing argument. Accordingly, defendant is entitled to a new trial. The court of appeals’ judgment was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Self-Defense Instruction Warranted if Evidence Shows Defendant Acted in Self-Defense

The Colorado Court of Appeals issued its opinion in People v. Wakefield on Thursday, March 22, 2018.

Second Degree Murder—Self-Defense—Jury Instruction—Voluntary Statements—Photographic Evidence.

Defendant and the victim were longtime friends, and the victim was visiting defendant from out of state. The victim and defendant argued and were involved in a series of increasingly violent physical fights. Defendant shot the victim, killing him. Right after the shooting defendant indicated to two people that he had acted in self-defense. Defendant testified at trial that when the victim stepped forward and reached for the shotgun defendant was holding, defendant pulled the gun up and away from the victim’s reach, and the gun “went off.” According to defendant, he thought that the victim was going to grab the gun and hurt him with it. Defendant maintained that he did not intend to shoot or hurt the victim. Defendant was tried for first degree murder, but was convicted of the lesser included offense of second degree murder.

On appeal, defendant first argued that the trial court erred by declining to give his tendered jury instruction on self-defense. Article II, section 3 of the Colorado Constitution recognizes the right of a person to act in self-defense, and under binding case law, when a defendant presents at least a scintilla of evidence in support of a self-defense instruction, the court must instruct the jury on self-defense. Here, defendant’s claim of accident in the course of self-defense was not so inconsistent as to deprive him of the right to have the jury instructed on self-defense, and counsel’s tendering of the self-defense instruction was sufficient to preserve the issue for appeal. The trial court’s error warrants reversal of the conviction.

Defendant also argued that the trial court erred by declining to suppress statements he made to both a private security guard and the police following his apprehension. The trial court did not err in declining to suppress the statements under Miranda v. Arizona because they were (1) made to a private security guard and not subject to Miranda; (2) based on Miranda’s public safety exception; or (3) volunteered and therefore not the product on an interrogation. However, the trial court did not make the required findings as to whether defendant’s statements to the police warranted suppression because of defendant’s assertion that the statements were involuntary.

Defendant further argued that the trial court erred by admitting photographs showing a large amount of marijuana in his apartment. Because the probative value of this evidence was substantially outweighed by the danger of unfair prejudice, it should have been excluded under CRE 403, and the court erred in admitting the photos.

The judgment of conviction was reversed and the case was remanded for a new trial. On remand, the court must conduct an evidentiary hearing on the voluntariness and admissibility of defendant’s statements to the police officers, and photos depicting marijuana should be excluded from evidence.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Self-Defense is Not Affirmative Defense to All Crimes Requiring Intent, Knowledge, or Willfulness

The Colorado Supreme Court issued its opinion in Roberts v. People on Monday, June 19, 2017.

Affirmative Defenses—Traverses—Self-Defense—Harassment.

In this case, the supreme court reviewed the district court’s order affirming petitioner’s county court conviction for harassment. Petitioner asserted that pursuant to People v. Pickering, 276 P.3d 553 (Colo. 2011), self-defense is an affirmative defense to all crimes requiring intent, knowledge, or willfulness. She thus contended that (1) she was entitled to a self-defense affirmative defense instruction to the specific intent crime of harassment, and (2) the county court’s refusal to give such an instruction constituted reversible error. Because Pickering does not establish the broad, bright-line rule that petitioner asserts and thus does not require a trial court to give a self-defense affirmative defense instruction in every case requiring intent, knowledge, or willfulness, the court affirmed the district court’s judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Instruction Should Be Given When Evidence Defendant Acted in Self-Defense

The Colorado Court of Appeals issued its opinion in People v. Newell on Thursday, March 9, 2017.

John Robert Newell lived with his girlfriend, Chantel McDowell, and his cousin, Eric Albert, who had been staying with them for a couple of weeks. One night, Albert and Newell had an altercation in which Newell cut Albert’s back with a straight-edged barber’s razor. Newell had a cut under his right eye. Newell was charged with second degree assault and a violent crime sentence enhancer.

The only witnesses to the assault were Newell, Albert, and McDowell, and only Albert and McDowell testified at trial. McDowell testified that she had taken sleeping pills and was asleep when the fight started, but she awoke to yelling. When she came out of the bedroom, she saw Newell with the razor and Albert with a pair of scissors. Albert testified inconsistently about the fight.

Newell repeatedly requested a self-defense jury instruction. The prosecution countered Newell was not entitled to a self-defense instruction because he had not presented a scintilla of evidence showing he was not the initial aggressor, and the trial court agreed, denying the instruction. Newell was convicted of a class 6 felony and sentenced to three years in the custody of the Department of Corrections.

On appeal, Newell argued the court erred in denying him a self-defense jury instruction. The court of appeals agreed. The court found that “If there is any evidence in the record to support the theory that a defendant acted in self-defense, the defendant is entitled to an instruction, and a court’s refusal to give one deprives the accused of his or her constitutional right to a trial by a jury.” The court found that defendant could use any evidence that tended to show he acted in self-defense, including evidence advanced by the prosecution. In this case, the court noted there was ample evidence that defendant acted in self-defense, and it was error for the trial court to deny his request for a jury instruction.

The court also addressed Newell’s second contention to the extent the issue would arise again on remand. Newell argued the court erred in prohibiting him from admitting evidence of Albert’s prior felony conviction. The court instructed that determining whether the remoteness of the prior conviction rendered it inapplicable was within the sound discretion of the trial court.

Newell’s sentence and conviction were vacated and the case was remanded.

Colorado Court of Appeals: Prison Inmate Not Barred from Asserting Castle Doctrine

The Colorado Court of Appeals issued its opinion in People v. Alaniz on Thursday, June 30, 2016.

Prison Cell—Prisoner—“Make-My-Day” Statute—Dwelling—Immunity.

Alaniz is an inmate in the Colorado Department of Corrections. The people filed the charges in this case after another inmate was found dead in a cell shared by Alaniz and another inmate. After the court held an evidentiary hearing, it dismissed the charges against defendant based on Colorado’s “make-my-day” statute, which provides that under certain circumstances an occupant of a dwelling who uses any degree of physical force, including deadly physical force, against an intruder will be immune from prosecution.

On appeal, the People contended that Alaniz was not entitled to immunity under section C.R.S. § 18-1-704.5 because a prison cell is not a dwelling for purposes of that statute. Alaniz’s prison cell meets the definition of a dwelling in C.R.S. § 18-1-901(3)(g) because it was used by persons for habitation. Further, the definition of dwelling in C.R.S. § 18-1-901(3)(g) applies to the immunity provisions of C.R.S. § 18-1-704.5.

The People next contended that the court erred in dismissing the charges because Alaniz failed to prove that he used physical force against the victim. Alaniz was merely required to establish that circumstances justifying the charged use of force were present, as set forth in C.R.S. §§ 18-1-704.5(2) and (3). Nothing in the language of that statute supports the People’s assertion that he was required to explain the entirety of his actions at the hearing in order to obtain immunity. Accordingly, the court did not err in granting Alaniz’s motion to dismiss the charges.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Affirmative Self-Defense Instruction Available for All General Intent Crimes

The Colorado Court of Appeals issued its opinion in People v. DeGreat on Thursday, July 30, 2015.

Self-Defense—Robbery—Jury Instruction—Peremptory Challenge—BatsonChallenge.

DeGreat’s criminal charges arose from an altercation with a taxi cab driver over the fare, which culminated in DeGreat stabbing and wounding the driver. DeGreat defended on a theory of self-defense. The jury found DeGreat guilty of aggravated robbery and a related crime of violence count.

On appeal, DeGreat contended that, given the unique facts presented, he was entitled to a jury instruction on self-defense as an affirmative defense to aggravated robbery. A person may use physical force to defend himself from what “he reasonably believes to be the use or imminent use of unlawful physical force” by another person. Here, evidence was presented that supported an affirmative self-defense instruction, and DeGreat successfully defended against attempted murder and first-degree assault charges on that basis. Because the robbery was intertwined with the assault, the jury could have concluded that DeGreat had the right to defend himself. The refusal to give the self-defense instruction for the charge of aggravated robbery lowered the prosecution’s burden of proof and was not harmless. Therefore, DeGreat’s aggravated robbery conviction was reversed and the case was remanded for a new trial.

DeGreat also contended that the trial court erred in denying his Batson challenge to the prosecutor’s use of a peremptory challenge to remove Juror M, an African American, from the panel [Batson v. Kentucky, 476 U.S. 79 (1986)]. In light of the prosecutor’s stated basis for the strike, which was Juror M’s reaction to self-defense questioning, the trial court did not err in finding the prosecution offered a good faith, race-neutral basis for its peremptory challenge.

DeGreat contended that the trial court plainly erred in failing to sua sponte strike testimony that DeGreat had been offered a plea bargain. DeGreat’s attorney did not make a contemporaneous objection to this testimony. Because no binding precedent clearly precludes evidence regarding plea offers, the trial court could not have been expected to sua sponte strike such unsolicited testimony.

DeGreat contended that the trial court erred in admitting recorded phone calls he placed from jail in which he attempted to solicit the victim not to appear for trial. There is no reasonable expectation of privacy in phone calls placed from jail. Furthermore, the wiretapping statute does not apply to inmate phone calls placed from jail. Thus, the trial court did not err in admitting the jailhouse phone calls.

Summary and full case available here, courtesy of The Colorado Lawyer.