CHIEF JUSTICE HODGES
delivered the opinion of the Court.
The defendant was convicted of conspiracy to commit first-degree murder and first-degree murder. He was sentenced to death. On appeal, he challenged the constitutionality of the death penalty statute under which he was sentenced. Section 16-11-103, C.R.S. 1973 (1978 Repl. Vol. 8). He also asserted several allegations of reversible error. We subsequently declared this death penalty statute unconstitutional in People v. District Court, 196 Colo. 401, 586 P.2d 31 (1978). On a temporary remand, we then ordered the trial court to resentence the defendant to life imprisonment. Having reviewed the defendant’s remaining issues on appeal, we uphold his convictions and therefore affirm the trial court’s judgment.
The defendant and two companions were associated with the decedent in a series of illicit drug transactions. The decedent had supplied the defendant with a large quantity of amphetamines, which was thereafter sold in Kansas by one Carlos Allen, an associate of the defendant. The defendant, together with Carlos Allen and Richard Hisle, planned to meet in El [130] Paso, Texas, after the sale in Kansas to participate in the theft of a large quantity of marijuana and cocaine from a man named “John.” The decedent learned of the scheme and warned John about it. As a result, the three men were unable to carry out the theft.
On their return trip to Colorado, the three men discussed the possibility of murdering the decedent and thereafter agreed on a plan. They informed the decedent that they had been able to secure drugs in Texas and told him to meet them in Woodland Park, which is several miles west of Colorado Springs. The defendant and Carlos Allen took the decedent to a remote area where the drugs were purportedly hidden. There, the defendant shot the decedent first in the back, a second time as the decedent turned and fell, and finally in the head as the decedent was lying on the ground.
I.
The defendant’s first contention is that the trial court erred in excluding testimony that the decedent had severely beaten another man several months prior to his death and that the defendant knew of this incident prior to the homicide. Defense counsel had argued that the defendant feared the decedent and that the killing was in self-defense.
A defendant is entitled to present evidence of a prior violent act of a victim only if (1) the defendant contends that he acted in self-defense and there is competent evidence to support the contention, (2) either the act occurred or defendant became aware of its occurrence within a reasonable time of the homicide, and (3) the defendant knew of the victim’s prior violence at the time of the homicide. People v. Burress, 183 Colo. 146, 515 P.2d 460 (1973); Ballay v. People, 160 Colo. 309, 419 P.2d 446 (1966). Although there was evidence that the defendant knew of the decedent’s prior violent act at the time of the homicide, there was no evidence to support the defendant’s contention that he killed the decedent in self-defense.
In order to justify a theory of self-defense, where the defendant used deadly force, he must have reasonably believed that a lesser degree of force was inadequate and that he or another person was in imminent danger of being killed or of receiving great bodily harm. Section 18-1-704(2)(a), C.R.S. 1973 (1978 Repl. Vol. 8). There was no evidence introduced at trial to indicate that either the defendant or Allen was in imminent danger of harm at the time the defendant shot the victim three times in the remote area outside Woodland Park. In fact, the third and fatal shot to the head was fired as the decedent was lying helpless on the ground.
II.
The defendant also asserts that certain statements made by the prosecutor in closing argument constituted reversible error and that a mistrial motion should have been granted. The first involved a comment to [131] the jurors indicating that they should retaliate against the defendant. The prosecutor’s argument should be restricted to the evidence and reasonable inferences to be drawn therefrom on the issue of whether guilt is proven beyond a reasonable doubt. The defendant’s counsel used strong and colorful language in his closing argument, characterizing the situation as “kill or be killed, if I may call it the law of the jungle.” However, the prosecutor’s response exceeded the bounds of proper argument and therefore cannot be condoned.
In People v. Elliston, 181 Colo. 118, 123, 508 P.2d 379 (1973), we held:
“The granting or denial of a motion for a mistrial is within the sound discretion of the trial judge. In Maes v. District Court, 180 Colo. 169, 503 P.2d 621 (1972), we recently reaffirmed the standards to be applied by trial judges when deciding whether such a motion should be granted. The trial court’s determination will not be disturbed on review unless it is apparent that the court abused its discretion. Barriner v. District Court, 174 Colo. 447, 484 P.2d 774 (1971); Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969); and Maisel v. People, 166 Colo. 161, 442 P.2d 399 (1968). As stated in Falgout v. People, supra, this standard of review is founded on the principle that the trial court is in a better position than the appellate court to evaluate the effect of any alleged irregularity upon the jury’s determination.”
Again, we emphasize that the trial court was in the best position to determine the impact of the prosecutor’s improper argument upon the jury. Under the facts of this case, we hold that the trial court did not abuse its discretion in denying the motion for mistrial.
As to the district attorney’s second comment in closing argument, defense counsel neither objected nor raised it as error in his motion for new trial. Therefore, this issue was not properly preserved for appeal.
III.
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CHIEF JUSTICE HODGES
delivered the opinion of the Court.
The defendant was convicted of conspiracy to commit first-degree murder and first-degree murder. He was sentenced to death. On appeal, he challenged the constitutionality of the death penalty statute under which he was sentenced. Section 16-11-103, C.R.S. 1973 (1978 Repl. Vol. 8). He also asserted several allegations of reversible error. We subsequently declared this death penalty statute unconstitutional in People v. District Court, 196 Colo. 401, 586 P.2d 31 (1978). On a temporary remand, we then ordered the trial court to resentence the defendant to life imprisonment. Having reviewed the defendant’s remaining issues on appeal, we uphold his convictions and therefore affirm the trial court’s judgment.
The defendant and two companions were associated with the decedent in a series of illicit drug transactions. The decedent had supplied the defendant with a large quantity of amphetamines, which was thereafter sold in Kansas by one Carlos Allen, an associate of the defendant. The defendant, together with Carlos Allen and Richard Hisle, planned to meet in El [130] Paso, Texas, after the sale in Kansas to participate in the theft of a large quantity of marijuana and cocaine from a man named “John.” The decedent learned of the scheme and warned John about it. As a result, the three men were unable to carry out the theft.
On their return trip to Colorado, the three men discussed the possibility of murdering the decedent and thereafter agreed on a plan. They informed the decedent that they had been able to secure drugs in Texas and told him to meet them in Woodland Park, which is several miles west of Colorado Springs. The defendant and Carlos Allen took the decedent to a remote area where the drugs were purportedly hidden. There, the defendant shot the decedent first in the back, a second time as the decedent turned and fell, and finally in the head as the decedent was lying on the ground.
I.
The defendant’s first contention is that the trial court erred in excluding testimony that the decedent had severely beaten another man several months prior to his death and that the defendant knew of this incident prior to the homicide. Defense counsel had argued that the defendant feared the decedent and that the killing was in self-defense.
A defendant is entitled to present evidence of a prior violent act of a victim only if (1) the defendant contends that he acted in self-defense and there is competent evidence to support the contention, (2) either the act occurred or defendant became aware of its occurrence within a reasonable time of the homicide, and (3) the defendant knew of the victim’s prior violence at the time of the homicide. People v. Burress, 183 Colo. 146, 515 P.2d 460 (1973); Ballay v. People, 160 Colo. 309, 419 P.2d 446 (1966). Although there was evidence that the defendant knew of the decedent’s prior violent act at the time of the homicide, there was no evidence to support the defendant’s contention that he killed the decedent in self-defense.
In order to justify a theory of self-defense, where the defendant used deadly force, he must have reasonably believed that a lesser degree of force was inadequate and that he or another person was in imminent danger of being killed or of receiving great bodily harm. Section 18-1-704(2)(a), C.R.S. 1973 (1978 Repl. Vol. 8). There was no evidence introduced at trial to indicate that either the defendant or Allen was in imminent danger of harm at the time the defendant shot the victim three times in the remote area outside Woodland Park. In fact, the third and fatal shot to the head was fired as the decedent was lying helpless on the ground.
II.
The defendant also asserts that certain statements made by the prosecutor in closing argument constituted reversible error and that a mistrial motion should have been granted. The first involved a comment to [131] the jurors indicating that they should retaliate against the defendant. The prosecutor’s argument should be restricted to the evidence and reasonable inferences to be drawn therefrom on the issue of whether guilt is proven beyond a reasonable doubt. The defendant’s counsel used strong and colorful language in his closing argument, characterizing the situation as “kill or be killed, if I may call it the law of the jungle.” However, the prosecutor’s response exceeded the bounds of proper argument and therefore cannot be condoned.
In People v. Elliston, 181 Colo. 118, 123, 508 P.2d 379 (1973), we held:
“The granting or denial of a motion for a mistrial is within the sound discretion of the trial judge. In Maes v. District Court, 180 Colo. 169, 503 P.2d 621 (1972), we recently reaffirmed the standards to be applied by trial judges when deciding whether such a motion should be granted. The trial court’s determination will not be disturbed on review unless it is apparent that the court abused its discretion. Barriner v. District Court, 174 Colo. 447, 484 P.2d 774 (1971); Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969); and Maisel v. People, 166 Colo. 161, 442 P.2d 399 (1968). As stated in Falgout v. People, supra, this standard of review is founded on the principle that the trial court is in a better position than the appellate court to evaluate the effect of any alleged irregularity upon the jury’s determination.”
Again, we emphasize that the trial court was in the best position to determine the impact of the prosecutor’s improper argument upon the jury. Under the facts of this case, we hold that the trial court did not abuse its discretion in denying the motion for mistrial.
As to the district attorney’s second comment in closing argument, defense counsel neither objected nor raised it as error in his motion for new trial. Therefore, this issue was not properly preserved for appeal.
III.
The defendant finally contends that certain expert testimony regarding the entrance wounds based upon a hypothetical question was inadmissible. It is asserted that the expert’s testimony was based upon the opinion of another expert. Such testimony is not admissible. Herness v. Goodrich, 29 Colo. App. 322, 483 P.2d 412 (1971). See also People v. McCormick, 181 Colo. 162, 508 P.2d 1270 (1973). Although the district attorney’s question was inartfully stated, the answer of the expert makes it clear that his testimony was based not upon the opinion of the other expert, but upon the actual tests which were performed as the basis for the other expert’s opinion. These tests constituted direct evidence upon which he could give his independent opinion. See Fry Roofing Company v. State Department of Health Air Pollution Variance Board, 191 Colo. 463, 553 P.2d 800 (1976).
[132] Judgment affirmed.
JUSTICE ERICKSON, JUSTICE DUBOFSKY and JUSTICE QUINN dissent.