The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY November 9, 2023
2023COA104
No. 20CA1568, People v. Jones — No. 20CA1568, People v. Jones — Criminal Law — Affirmative Defenses — Mistake of Fact — Self-Defense — Use of Physical Force in Defense of a Person — Use of Deadly Physical Force Against an Intruder
Applying the division’s analysis in People v. Toler, 981 P.2d
1096, 1099 (Colo. App. 1998), aff’d, 9 P.3d 341 (Colo. 2000), a
division of the court of appeals holds that the trial court here
properly refused to give a self-defense instruction under
subsections (2)(b) and (2)(c) of the self-defense statute. § 18-1-704,
C.R.S. 2023. The trial court properly recognized that giving such
an instruction would be based only on the actual belief of the
defendant. And the self-defense statute takes into account both the
reasonable belief and the actual belief of the defendant. Toler, 981
P.2d at 1099. COLORADO COURT OF APPEALS 2023COA104
Court of Appeals No. 20CA1568 Delta County District Court No. 18CR92 Honorable Steven L. Shultz, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Heather Palmer Jones,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE FURMAN Fox and Pawar, JJ., concur
Announced November 9, 2023
Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, John Plimpton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Applying the division’s analysis in People v. Toler, 981 P.2d
1096, 1099 (Colo. App. 1998), aff’d, 9 P.3d 341 (Colo. 2000), we
hold that the trial court here properly refused to give a self-defense
instruction under subsections (2)(b) and (2)(c) of the self-defense
statute. § 18-1-704, C.R.S. 2023. The trial court properly
recognized that giving such an instruction would be based only on
the actual belief of the defendant. And the self-defense statute
takes into account both the reasonable belief and the actual belief
of the defendant. Toler, 981 P.2d at 1099.
¶2 Defendant, Heather Palmer Jones, shot the victim — her
friend — while staying at the victim’s home in early 2018. The
victim died from complications caused by the gunshot wound eight
months later.
¶3 Jones asserted the defense of self-defense based on her
mistaken belief that the victim was an intruder. See § 18-1-
704(2)(a); § 18-1-504(1)(a), (c), C.R.S. 2023.
¶4 The jury wasn’t persuaded by Jones’s defense and found her
guilty of second degree murder. The trial court sentenced her to
twenty-four years in prison.
1 ¶5 Jones appeals. She contends that (1) the trial court erred by
declining to instruct the jury on the affirmative defense of force
against intruders and the affirmative defense of self-defense under
subsections (2)(b) and (2)(c) of the self-defense statute; (2) the trial
court violated her rights under the Confrontation Clause of the
United States Constitution by admitting testimonial statements of
the victim that the defense’s expert witness considered; and (3) the
prosecution committed misconduct during voir dire. We affirm the
judgment of conviction.
I. The Shooting
A. Events Leading up to the Shooting
¶6 Throughout 2017, Jones reconnected with a friend, Lynette
Taylor, who told Jones that she had been living with a man who
was abusive toward her and was part of an extremely dangerous
motorcycle gang that trafficked drugs. Jones first met this man
when Taylor brought him to Jones’s home in May 2017, and Taylor
told Jones she was afraid of the man.
¶7 Taylor, together with the man, visited Jones’s home again in
September 2017. Jones testified that she “wasn’t afraid of this guy”
and “was honestly a little curious to meet him” despite the things
2 Taylor told her. During this visit, the man left his trailer at Jones’s
home and removed it about a week later.
¶8 In December, Taylor came to Jones asking for a place to stay.
Taylor stayed at Jones’s home on and off throughout December and
early January. At one point, Taylor returned to Jones’s home with
“bruises from a man she was working for and in some ways seeing”
who had sexually assaulted her.
¶9 On January 11, 2018, a day before the shooting, Jones took
Taylor to a meeting with Taylor’s probation officer, which ended
with Taylor being taken into custody. Throughout that day, Jones
received five voicemails from a phone number that Taylor had used
to call her. The voicemails were left by a man who addressed Jones
by name (though Jones had never met the man). This man said he
was looking for Taylor. In response to these voicemails, Jones was
“afraid at that point” and “stopped by [the victim’s] house.” There
was no evidence that the victim knew Taylor, or any of the men
Taylor associated with. That night, Jones stayed at a different
friend’s house.
3 B. The Day of the Shooting
¶ 10 The next day, Jones returned to her home in the early
afternoon accompanied by the victim. Upon arriving home, Jones
and the victim observed “damage to [Jones’s] property” and “mud
splattered on [Taylor’s] car” resulting from “donuts in the mud” and
“tire tracks [having] driven over one of the skids on [her]
snowmobile.” They also observed “boot prints that led up to
[Jones’s] house,” where they noticed “damage to the area of the
dead bolt where a key is inserted” that “look[ed] like something was
forced into that area and caused damage on both sides of the
keyhole.” Jones was “terrified,” so she left to stay at the victim’s
house.
¶ 11 Jones stored several of her guns in the victim’s gun cabinet.
While at the victim’s house, she retrieved her 9 mm gun,
ammunition, and two clips and loaded the firearm in the living
room “to make [her] feel safer.”
¶ 12 Later, another friend of Jones and the victim came by the
victim’s home, and Jones placed the gun under a futon in the back
bedroom. The victim and the friend left together to go to a local
brewery, and Jones remained at the victim’s home alone. While
4 Jones was alone, another mutual friend visited the home looking for
the victim and spent some time with Jones. The gun remained
under the futon.
¶ 13 The mutual friend left and returned five to ten minutes later.
During the time the mutual friend was gone, Jones “decided that
[she] would lie down on the couch and rest.” “[She] turned off all
the lights in the house, [she] locked the doors, and [she] retrieved
the .9 mm from the back bedroom.” And she put the gun on the
coffee table in the living room. When the mutual friend returned,
he “rattled the doorknob” on the front door, knocked, and called out
to Jones to let him in. Jones let him in. He retrieved a forgotten
item and left again. Jones turned off the lights, relocked the front
door, turned off her phone, and laid down on the couch.
¶ 14 Later that evening, Jones awoke to “[t]he rattling of the front
doorknob and knocking.” After a short moment, Jones heard
“rattling of the doorknob” and “knocking at the back door.” Then,
Jones heard “loud banging and pounding” on the front door and “a
loud sharp sound like a bang or a clap.” Jones got underneath the
coffee table. She began to hear “muffled noises coming from [the
victim’s] bedroom” and “footsteps.” On hearing these noises, Jones
5 positioned herself to shoot at “whatever came through the door.”
Finally, the door to the living room opened, the victim walked into
the room holding a flashlight, and Jones immediately shot the
victim.
II. Jury Instructions
¶ 15 We first consider whether the trial court erred by declining to
instruct the jury on (1) the affirmative defense of force against
intruders and (2) self-defense under subsections (2)(b) and (2)(c) of
the self-defense statute. We conclude it did not.
A. Standard of Review
¶ 16 We review a trial court’s decision to give, or not to give, a
particular jury instruction for an abuse of discretion. People v.
Payne, 2019 COA 167, ¶ 16.
¶ 17 But to present an affirmative defense for the jury to consider,
a defendant must offer “some credible evidence” to support it.
Pearson v. People, 2022 CO 4, ¶ 16. “Some credible evidence” has
been understood to be interchangeable with “some evidence,” “any
credible [even if highly improbable] evidence,” “a scintilla of
evidence,” a “small quantum of evidence,” and “any evidence.”
Galvan v. People, 2020 CO 82, ¶ 24 (citations omitted).
6 ¶ 18 “Whether a defendant has met this burden is a question of
law, and we review the sufficiency of a defendant’s evidence de
novo.” Pearson, ¶ 16. We review the record as a whole to determine
if there is “any evidence tending to establish the [affirmative]
defense.” People v. Garcia, 113 P.3d 775, 784 (Colo. 2005) (quoting
Idrogo v. People, 818 P.2d 752, 754 (Colo. 1991)).
B. Force Against Intruders
¶ 19 Jones contends that the trial court erred by declining to give
an instruction on the affirmative defense of force against intruders
because there was some evidence to support this affirmative
defense. We disagree.
1. The Law
¶ 20 Section 18-1-704.5, C.R.S. 2023, addresses the justified use of
force against intruders in the home. People v. Rau, 2022 CO 3,
¶¶ 2-3. The statute recognizes “that the citizens of Colorado have a
right to expect absolute safety within their own homes,” § 18-1-
704.5(1), and provides that citizens may use deadly physical force
when certain specific conditions are met. Rau, ¶ 3. These specific
conditions are that
7 (1) the defendant was an occupant of a dwelling; (2) another person made a knowingly unlawful entry into that dwelling; (3) the defendant had a reasonable belief that, in addition to the uninvited entry, the other person had committed, was committing, or intended to commit a crime against a person or property in the dwelling; and (4) the defendant reasonably believed that the other person might use any physical force (no matter how slight) against any occupant of the dwelling.
Id. at ¶ 21; see also § 18-1-704.5(2).
¶ 21 A defendant may assert the force-against-intruders statute as
an affirmative defense at trial. See People v. Guenther, 740 P.2d
971, 981 (Colo. 1987). A defendant must present some credible
evidence supporting the statute’s applicability for the trial court to
instruct the jury on this affirmative defense. People v. Janes, 962
P.2d 315, 317-18 (Colo. App. 1998), aff’d, 982 P.2d 300 (Colo.
1999).
¶ 22 But the plain language of the force-against-intruders statute
“requires proof of an actual unlawful entry and not merely a
reasonable belief that the entry was unlawful.” People v. McNeese,
892 P.2d 304, 310 (Colo. 1995) (citing Guenther, 740 P.2d at 979).
8 2. Analysis
¶ 23 We conclude that the trial court did not err by declining to give
the jury an instruction on the affirmative defense of force against
intruders under section 18-1-704.5. We reach this conclusion
because Jones did not make the threshold showing of the objective
element of the statute — that the victim knowingly entered into the
dwelling unlawfully. See § 18-1-704.5; see also McNeese, 892 P.2d
at 309. Indeed, Jones conceded that there was no unlawful entry
because she shot the victim in his own home.
¶ 24 Still, Jones contends that she has satisfied this element
because (1) she was operating “under a mistaken belief [the victim]
was an intruder”; and (2) section 18-1-504(1)(c), the mistake-of-fact
statute, supports that the element may be satisfied by such a
subjective belief. Jones also contends that she presented credible
evidence supporting the defense by testifying about “the damage
she observed on her property” and the damage to her deadbolt. She
further contends that her testimony regarding the voicemails left by
an unknown man looking for Taylor, and the violence these men
perpetrated against Taylor qualify as credible evidence.
9 ¶ 25 Jones’s subjective belief that the victim was an intruder
making an unlawful entry into the dwelling does not cure her
inability to meet the objective element of the force-against-intruders
statute. See McNeese, 892 P.2d at 309.
¶ 26 The cases on which Jones relies do not help her. In each case,
the defendant had presented credible evidence of an unlawful entry.
The appellate courts were therefore tasked with determining only
whether the jury instructions supporting these defenses were
proper. See Janes, 982 P.2d at 301 (evaluating whether instruction
impermissibly conveyed the prosecution’s burden of proof); People v.
Manyik, 2016 COA 42, ¶ 74 (evaluating whether the jury was
properly instructed on the defendant’s affirmative defenses in
relation to each other); People v. Ujaama, 2012 COA 36, ¶ 53
(evaluating whether the jury instruction erroneously misconstrued
the prosecution’s burden of proof and limited the defendant’s right
to respond with force).
C. Self-Defense
¶ 27 Jones next contends that the trial court erred by declining to
fully instruct the jury regarding self-defense because there was
10 some evidence to support instructions on both subsection (2)(b) and
subsection (2)(c) of the self-defense statute. We disagree.
¶ 28 Colorado’s self-defense statute provides in part as follows:
(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:
(a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or
(b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18- 4-202 to 18-4-204; or
(c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4- 301 or 18-4-302, sexual assault as set forth in section 18-3-402, . . . or assault as defined in sections 18-3-202 and 18-3-203.
§ 18-1-704(2)(a)-(c).
11 2. Analysis Concerning Subsection (2)(b) of the Self-Defense Statute
¶ 29 We conclude that the trial court did not err by declining to
instruct the jury on subsection (2)(b) of the self-defense statute.
¶ 30 Unsurprisingly, Jones and the People disagree about the
standard we are to use to evaluate this issue. Jones urges us to
apply a subjective test. She contends that the applicability of
subsection (2)(b) was supported by credible evidence through her
testimony regarding her fear “that the person entering the house
was a member of the drug trafficking motorcycle gang [Taylor] was
associating with, and that they were breaking into the house.”
¶ 31 The People counter that we should apply an objective test.
They contend that there must be evidence that Jones acted as a
reasonable person would in a similar situation. We agree with the
People. The trial court correctly recognized that giving the
requested instruction would be unjustified because it would not be
based on a reasonable belief, at best, it would be based only on
Jones’s actual belief.
¶ 32 In Toler, a division of our court addressed an issue that “may
arise on remand.” 981 P.2d at 1098-99. The division discussed
12 whether a trial court erred by refusing to instruct the jury that the
“reasonable person” referenced in the self-defense instruction “must
be measured by a subjective, not an objective, standard.” Id. The
division recognized that self-defense “under § 18-1-704 takes into
account both the reasonable belief and the actual belief of the
defendant” and determined that a “court may properly refuse to give
an instruction which calls only for a subjective test.” Id. at 1099.
¶ 33 We agree with the division’s analysis in Toler and conclude
that the trial court here properly refused to give a self-defense
instruction under subsection (2)(b) of the self-defense statute
because it would have called only for a subjective test. See id.
¶ 34 There was no evidence that the victim was “using or
reasonably appear[ed] about to use physical force against” Jones.
§ 18-1-704(2)(b). Jones herself testified that, upon hearing noises,
she positioned herself to shoot at “whatever came through the
door.” She thus had committed herself to shooting the perceived
intruder before she could identify him or his purpose. And there
was no evidence that the victim took any actions that would make it
appear that he was about to use physical force against Jones.
13 ¶ 35 There also was no evidence that the victim, the alleged
intruder, entered his home that night “while committing or
attempting to commit burglary.” Id. It was undisputed that the
victim was reentering his own home and therefore there could be no
burglary. See § 18-4-201(3), C.R.S. 2023 (“A person ‘enters
unlawfully’ or ‘remains unlawfully’ in or upon premises when the
person is not licensed, invited, or otherwise privileged to do so.”).
3. Analysis Concerning Subsection (2)(c) of the Self-Defense Statute
¶ 36 Agreeing with the division’s analysis in Toler again, we
conclude that the trial court properly refused to give a self-defense
instruction under subsection (2)(c) of the self-defense statute.
¶ 37 Jones contends that an instruction under section 18-1-
704(2)(c) was supported by credible evidence from her testimony
that “[s]he felt she was in danger of being kidnapped, sexually
assaulted, or assaulted” due to the damage to her property and
“receiving phone calls from a man who addressed [her] by name in
voicemails, whom [she] had never met.”
¶ 38 We disagree with Jones because there was no evidence that
the victim was committing or “reasonably appear[ed] about to
14 commit” kidnapping, sexual assault, or assault. § 18-1-704(2)(c);
see also Toler, 981 P.2d at 1099. Again, the evidence was that
Jones shot the victim immediately after he entered his living room
and before she identified him. When she heard someone entering
the home, she decided to shoot “whatever came through the door.”
¶ 39 And as the trial court noted, there also was a lack of
propensity or past history that would suggest the victim was coming
into his home to commit sexual assault, kidnapping, or assault.
¶ 40 In light of the complete lack of credible evidence, we conclude
that the trial court did not err by declining to instruct the jury
under subsections (2)(b) and (2)(c) of the self-defense statute.
III. Expert Testimony
¶ 41 Jones next contends that the trial court violated her rights
under the Confrontation Clause by admitting the victim’s
testimonial statements made to the police that he had entered his
home through the front door. This testimony came from a police
report that the expert witness reviewed. Jones argues that this
error was harmful because “whether the victim had entered through
the front door or through the bedroom doorway became a focal
15 point of the trial.” We conclude that any such error does not
require reversal.
A. Law
¶ 42 The Confrontation Clause bars the “admission of testimonial
statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” Crawford v. Washington, 541
U.S. 36, 53-54 (2004).
B. Standard of Review
¶ 43 We review a trial court’s evidentiary ruling for an abuse of
discretion and therefore look to whether the ruling was manifestly
arbitrary, unreasonable, or unfair, or reflects an erroneous
understanding or application of the law. People v. Brown, 2022
COA 19, ¶ 57. But we review de novo whether a statement violated
a defendant’s rights under the Confrontation Clause. People v.
Ambrose, 2021 COA 62, ¶ 65.
¶ 44 We review preserved Confrontation Clause violations under the
constitutional harmless error standard. Hagos v. People, 2012 CO
63, ¶ 10. These errors require reversal unless they were harmless
16 beyond a reasonable doubt. Id. In evaluating constitutional
harmlessness, we look to the following:
(1) the importance of the declarant’s statement to the prosecution’s case; (2) whether the statement was cumulative; (3) the presence or absence of corroborating or contradictory evidence on the material points of the witness’s testimony; (4) the extent of the cross- examination otherwise permitted; [and] (5) the overall strength of the prosecution’s case.
People v. Phillips, 2012 COA 176, ¶ 93 (quoting Arteaga-Lansaw v.
People, 159 P.3d 107, 110 (Colo. 2007)).
C. Analysis
¶ 45 During the trial, defense counsel asked Jones’s expert witness
about what he had reviewed in preparing his opinion. The expert
witness testified that he had reviewed several pieces of evidence for
his report, which included the victim’s statement that he entered
through the front door. Defense counsel then asked the expert
witness if he had considered the evidence regarding the victim’s
entrance to his home and whether the police’s subsequent
investigation was “to [the expert witness’s] satisfaction?” He
answered, “[n]o.” This testimony implicated the victim’s statement
to police officers that he had entered the house through the front
17 door, not the bedroom window. But the jury also heard the expert
witness opine that, despite the victim’s statements, he felt that
there was a possibility the victim could have entered some way
other than through the front door.
¶ 46 We conclude that any error in admitting the victim’s
testimonial statements that he had entered through the front door
was harmless beyond a reasonable doubt. We reach this
conclusion for two reasons.
¶ 47 First, the victim’s statements were limited to a factual dispute
that was not dispositive to the jury’s determination of Jones’s guilt.
Id. The victim’s entry into his house was lawful. As we have
concluded, this fact meant Jones was not entitled to invoke the
force-against-intruders statute. And because Jones had committed
herself to shooting the perceived intruder before identifying him or
his purpose, there was no reasonable basis to believe the intruder
“appear[ed] about to use physical force” under section 18-1-
704(2)(b) or was about to commit one of the listed crimes under
section 18-1-704(2)(c).
¶ 48 Thus, Jones’s only applicable defense under section 18-1-
704(2)(a) required some evidence that she reasonably believed that
18 the perceived intruder presented an “imminent danger.” Jones
created the circumstances that required the victim to purportedly
enter through the bedroom window because she had locked the
front door. Whether the victim entered his home through the door
or the window, neither provides a rational basis for her mistaken
belief because Jones does not identify any evidence of imminent
danger.
¶ 49 Second, the admitted statements had little relevance to the
jury’s determination. Phillips, ¶ 93. The jury understood that there
was at least some possibility that the victim had entered through
the bedroom window. And as we have concluded, the victim’s
purported entry into his own home has little significance because
no matter the point of entry, the victim lawfully entered his own
home and Jones failed to identify any imminent danger before
shooting the victim.
¶ 50 Accordingly, we conclude that any error in admitting the
victim’s testimonial statements was harmless beyond a reasonable
doubt.
19 IV. Prosecutorial Misconduct
¶ 51 Jones last contends that the prosecutor committed
misconduct during voir dire. We disagree.
¶ 52 Every person has a right to a trial by a fair and impartial jury.
Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005). It is
well settled in Colorado law that “a prosecutor, while free to strike
hard blows, is not at liberty to strike foul ones.” Id. (quoting Wilson
v. People, 743 P.2d 415, 418 (Colo. 1987)). Prosecutors may employ
legitimate means to bring about a just conviction, and they have a
duty to avoid improper methods designed to obtain an unjust
result. Id.
¶ 53 We employ a two-step analysis to allegations of prosecutorial
misconduct. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).
First, we must determine whether the prosecutor’s alleged
misconduct was, in fact, improper based on the totality of the
circumstances. Id. Second, if so, we must determine whether the
alleged misconduct warrants reversal according to the proper
standard of review. Id. at 1097.
20 ¶ 54 Because Jones’s counsel did not object to the prosecutor’s
challenged conduct during voir dire, we review for plain error.
Hagos, ¶ 14. An error is plain if it is “obvious and substantial,” and
we will reverse only if the error so undermined the fundamental
fairness of the trial as to cast serious doubt on the reliability of the
judgment of conviction. Id.
¶ 55 Jones alleges five separate instances of prosecutorial
misconduct during voir dire. We address and reject each in turn.
¶ 56 First, Jones contends that the prosecutor indoctrinated the
jury by suggesting that he had “personal knowledge of information
in support of the case that would not be presented because he had
to decide what to present the jury.”
PROSECUTOR: How do I know what should I [sic] bring for you to consider in this case? Say it louder.
THE JUROR: Something that’s believable.
PROSECUTOR: Something that’s believable. And, again, that’s [the juror]. Right. Okay. Very good point. Reliable, credible, right? Let me ask you this question to help it out. Can I bring you in the next five to six days every single fact that there is associated with this
21 case? [Juror], you want me to bring every single little tiny thing I know about this case?
THE JUROR: Well, it has to be pertinent to what you’re presenting.
PROSECUTOR: Has to be pertinent, has to be relevant. Plus you only signed up for six days, right? So there’s gotta be a — I have to know what’s pertinent, and there has to be some limits, right? Exactly. Does anybody have a problem with that? You know, let’s put this down to brass tacks. When you go to deliberate, there may be some things that you didn’t know, that you didn’t learn. Can you still make a decision? Who has had a situation like that in your work? You have to make a decision; but, you know, did you know absolutely every little thing about it? [Juror], you’re shaking your head.
THE JUROR: Like would you like an example?
PROSECUTOR: I would.
THE JUROR: Well, I had to fire someone yesterday at my work. And so in that case I felt like I used the best information I could to make the decision. It’s not one I was excited about, but I objectively evaluated the facts that I knew and had to decide how I would take action.
THE COURT: Yes. What a great example, because having to terminate someone from employment is an important decision. I mean, it’s one of those that really matters.
THE JUROR: Uh-huh.
22 PROSECUTOR: But at some point you have to make a decision.
¶ 57 The prosecutor’s statements did not mistate or oversimplify
the burden of proof. See People v. Vialpando, 2022 CO 28, ¶ 41.
Rather, the prosecutor’s line of questioning focused on the task the
jurors would face: weighing the evidence presented to them. This
was a proper line of inquiry. See People v. Adams, 708 P.2d 813,
815 (Colo. App. 1985).
¶ 58 Second, Jones contends that the prosecutor told the jurors
that they could convict based on less than proof beyond a
reasonable doubt.
PROSECUTOR: Does [defense counsel] and the defense ever have the burden of producing any evidence for you?
[Juror answers no.]
PROSECUTOR: You were right, they don’t have to produce anything, do they, any evidence? The defense doesn’t have to produce anything, right? That’s another really important concept in a criminal courtroom, isn’t it, that the defendant doesn’t have to do that? Who has to present you with the evidence? We do.
[Defense counsel] has no burden at any time to produce any evidence. He doesn’t have to really do anything. He will because he’s going
23 to represent Ms. Jones and her interests, but he doesn’t have to bring you any evidence.
¶ 59 The prosecutor’s statements focused on ensuring that the jury
understood the defense bore no burden of proof, and that the jury
understood that the prosecution carried the burden to prove its
case beyond a reasonable doubt. This was proper inquiry. See
Vialpando, ¶ 41.
¶ 60 Third, Jones contends that the prosecutor sought to “discredit
[her] mistake-of-fact defense” and asked the jurors not to let this
defense influence them from holding Jones accountable.
PROSECUTOR: So the issue here is does murder require that you kill — that you intended to kill the person that ended up dying? That’s the issue. It might, right; but it doesn’t always. Does everybody agree with that? [Juror S], any comments about that? . . .
JUROR: You always hear about drunk driving accidents where somebody is killed. That can be murder.
PROSECUTOR: Can you imagine if the rule was, well, if you cause somebody to die, but it wasn’t who you were trying to kill, that you got off? Can you imagine if that was the rule? Well, yeah. I caused somebody to die, but that wasn’t who I was trying to kill. Does that mean the person should not be held accountable for that?
24 JUROR: No.
PROSECUTOR: Anybody struggling with that at all? Okay.
¶ 61 The prosecutor’s statements did not tell the jurors to discredit
the mistake-of-fact defense. On the contrary, the prosecutor was
asking whether the jurors could apply the law to the concept of an
unintentional killing. This was a proper line of inquiry. See id.
¶ 62 Fourth, Jones contends that the prosecutor’s discussion
regarding guns, hunting, and military training was improper
because the line of questioning “had nothing to do with the facts or
evidence in this case.” But both parties submitted a stipulated
questionnaire inviting the prospective jurors to address their
experiences with firearms, firearm training, and the military.
Therefore, we conclude that Jones invited the error she now
complains about on appeal. See People v. Rediger, 2018 CO 32,
¶ 34 (“We have thus concluded that a party invites an error in a
jury instruction when that party drafted or tendered the erroneous
instruction.”).
¶ 63 Fifth, Jones contends that the prosecutor’s discussion of the
inapplicability of the force-against-intruders law was improper. We
25 disagree because the parties again stipulated to providing a jury
questionnaire that explicitly asked jurors to describe their
understanding of this law. And when the trial court discussed the
applicability of the force-against-intruders law, it asked Jones’s
attorney if he would be comfortable with the statute’s inapplicability
being disclosed in voir dire, if the trial court reached such a
conclusion. Jones’s attorney agreed to this. Therefore, we conclude
that Jones invited the error. See id.
V. Conclusion
¶ 64 The judgment of conviction is affirmed.
JUDGE FOX and JUDGE PAWAR concur.