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ADVANCE SHEET HEADNOTE June 29, 2020
2020 CO 67
No. 18SC708, People v. Monroe—Prosecutorial Misconduct—Self-Defense— Doctrine of No Retreat.
In this case, the supreme court considers whether it’s proper to argue that a
defendant didn’t act reasonably in self-defense because the defendant failed to
retreat before using defensive force.
In light of Colorado’s longstanding no-duty-to-retreat rule, which permits
non-aggressors to stand their ground when acting in self-defense, the supreme
court holds that it’s improper to argue that a defendant acted unreasonably in self-
defense because the defendant failed to retreat from an encounter. Here, the
prosecution argued that the defendant’s failure to retreat undermined the
reasonableness of her belief that she needed to act in self-defense. Because such
argument is improper, and because the trial court’s error in permitting that
argument wasn’t harmless, the supreme court affirms the judgment of the court of
appeals on different grounds, reverses the defendant’s judgment of conviction,
and remands this case for a new trial. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203
Supreme Court Case No. 18SC708 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 13CA1604
Petitioner:
The People of the State of Colorado,
v.
Respondent:
Sheila Renee Monroe.
Judgment Affirmed en banc June 29, 2020
Attorneys for Petitioner: Philip J. Weiser, Attorney General Matthew S. Holman, First Assistant Attorney General Denver, Colorado
Attorneys for Respondent: Megan A. Ring, Public Defender Anne T. Amicarella, Deputy Public Defender Denver, Colorado
JUSTICE HOOD delivered the Opinion of the Court. CHIEF JUSTICE COATS dissents, and JUSTICE BOATRIGHT joins in the dissent. ¶1 Colorado has long followed the no-duty-to-retreat rule in self-defense cases.
That rule permits non-aggressors to stand their ground when acting in self-
defense. So, when the defendant, Sheila Renee Monroe, argued that she stabbed a
fellow bus passenger in the neck out of self-defense, she in effect asserted her legal
authority to do so without first retreating to a place of no escape.
¶2 Yet, during the closing arguments of Monroe’s trial, the prosecution
repeatedly argued that Monroe didn’t act reasonably in self-defense because she
failed to retreat. Although the trial court admonished the jury that Monroe didn’t
have a duty to retreat, it instructed the jury that it could consider Monroe’s failure
to retreat as relevant to whether she actually believed that she faced an imminent
use of unlawful force. The jury found Monroe guilty of first degree assault and
attempted first degree murder.
¶3 Monroe appealed, arguing that because she had no duty to retreat the trial
court should not have permitted any argument regarding her failure to do so, even
if it was ostensibly directed at undermining the reasonableness of her claim of self-
defense.
¶4 A division of the court of appeals reversed her convictions. It abstained
from deciding whether it’s ever proper to argue that a defendant’s failure to retreat
undermines the reasonableness of a defendant’s self-defense claim, but it
2 concluded that the prosecution’s arguments impermissibly imposed on Monroe a
duty to retreat. It thus remanded this case for a new trial.
¶5 We now address the question the court of appeals left for another day: We
hold that the prosecution may not argue that a defendant acted unreasonably in
self-defense because she failed to retreat from an encounter. Thus, the trial court
erred by permitting the prosecution’s arguments regarding Monroe’s failure to
retreat. Accordingly, we affirm the judgment of the court of appeals on different
grounds, reverse Monroe’s judgment of conviction, and remand this case for a new
trial.
I. Facts and Procedural History
¶6 Monroe boarded a city bus and sat down in the back row. Monroe and the
victim, who was seated nearby, began arguing almost immediately. At some
point, Monroe displayed a pocketknife and informed the victim that one of her
acquaintances on the bus carried a gun. The victim then told Monroe that he was
going to call the police. He reached into his pocket, apparently to remove his cell
phone.
¶7 At this point, stories diverge. The victim testified that once he had removed
his phone from his pocket and began to enter a phone number, Monroe stood up
and stabbed him in the neck. Another passenger in the back row testified that the
3 victim “was opening his jacket” and had his phone “in his hand” and Monroe
stabbed the victim “almost simultaneously.”
¶8 After the stabbing, Monroe exited the bus. She was located by the police
later that day and subsequently charged with first degree assault and attempted
first degree murder.
¶9 At trial, Monroe argued that she acted in self-defense after the victim
reached into his pocket. During closing argument, the prosecutor countered by
twice highlighting Monroe’s failure to retreat before stabbing the victim. He said:
“She didn’t have any duty to retreat, but she does have a clear line of retreat, if
she’s actually scared for her safety.” Defense counsel objected, arguing that this
imposed a duty to retreat. But the trial court overruled the objection. It called the
jury’s attention to the self-defense instruction, which specified that Monroe didn’t
have a duty to retreat, and it directed the jury to only consider Monroe’s failure to
retreat as relevant to “whether or not she reasonably believed there was an
imminent use of force.”1 The prosecutor then continued his same line of argument,
stating, “Again, she did not have any duty to retreat but could have backed away,
if she wanted to, if she was actually afraid.”
1 In relevant part, the self-defense instruction stated: “The Defendant was not required to retreat to a position of no escape in order to claim the right to employ force in her own defense.” 4 ¶10 The prosecution referenced Monroe’s failure to retreat three more times
during rebuttal closing, first arguing, “You have no duty to retreat. No one in
Colorado has to run away from someone endangering them. But let’s be clear.
When you do not remove yourself from a situation when you easily can, that
contradicts that you were in fear of being hurt.” Defense counsel objected, but,
after reiterating that Monroe didn’t have a duty to retreat, the trial court overruled
the objection and permitted the jury to consider the argument to determine
whether or not Monroe “reasonably believed there was a[n] imminent use of
physical violence.”
¶11 After this colloquy, the prosecutor continued, stating,
There is a clear path down that aisle. You can see it on the video. If you’re scared of someone, if you’re caught in an interaction with them for 8 to 10 minutes, a reasonable person would move from it, if they have a direct line to go away. There is an open aisle—[.]
Defense counsel again objected, noting that “[t]he reasonableness standard [does]
not require a person to retreat.” But, after again directing the jury to consider the
self-defense instruction, the trial court permitted the argument. Finally, the
prosecutor stated:
She even says in her interview, “I wouldn’t get into this. If I were scared, I would have run away. That’s what I would do. I’m not going to get into trouble.” She knows that’s the appropriate thing to do. She doesn’t do that, ladies and gentlemen, because she’s not acting in self defense.
Again the defendant objected; again the court overruled her objection.
5 ¶12 The jury found Monroe guilty of first degree assault and attempted first
degree murder. She was sentenced to a total of ninety-six years in prison. Monroe
appealed her conviction, contending that the trial court erred in permitting the
prosecution to argue during closing and rebuttal closing that Monroe’s failure to
retreat undermined the reasonableness of her claim of self-defense.
¶13 A unanimous division of the court of appeals reversed. People v. Monroe,
2018 COA 110, ¶ 2, __ P.3d __. It recognized the “undeniable appeal [of] . . . a
categorical prohibition against permitting the jury to consider whether there was
an available avenue of retreat when assessing a defendant’s belief in the need for
the use of defensive force.” Id. at ¶ 18. But the division ultimately left that issue
“for another day,” since it determined that the prosecution’s last two arguments
during rebuttal closing effectively imposed on Monroe a duty to retreat. Id. at
¶¶ 19, 25. Because the trial court didn’t remedy those improper statements and
thus permitted the jury to “consider whether a reasonable person would have
retreated, in direct contravention of the instruction that no such duty exists,” the
division concluded that the trial court reversibly erred. Id. at ¶¶ 25, 33.
¶14 We granted the prosecution’s petition for certiorari review.2
2 We granted certiorari to review the following issues:
6 II. Analysis
¶15 We first identify the standard of review that governs claims of prosecutorial
misconduct. We then determine whether the prosecution may argue that a
defendant didn’t reasonably act in self-defense because she failed to retreat from
an encounter. Because we conclude that such argument is improper, the trial court
abused its discretion by permitting the prosecution’s arguments regarding
Monroe’s failure to retreat. And because that error wasn’t harmless, we remand
this case for a new trial.
A. Standard of Review
¶16 It is improper for counsel to misstate the law or “misinterpret[] for the jury
how the law should be applied to the facts” during closing argument. People v.
Sepeda, 581 P.2d 723, 732 (Colo. 1978). Whether a prosecutor’s statements during
closing argument qualify as misconduct is “generally a matter left to the trial
court’s discretion.” Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). But
1. Whether the prosecution properly argued that the defendant’s ability to leave an encounter was relevant to whether she feared for her safety and, therefore, to whether she acted in self-defense. 2. Whether the court of appeals erred in holding that the prosecution’s argument concerning the defendant’s ability to leave an encounter improperly injected a duty to retreat, contrary to Colorado’s self-defense law, despite the prosecution’s clarification of the argument and the trial court’s oral and written jury instructions.
7 “[w]hen a court, upon a proper objection, declines to direct the jury that the
prosecutor's version of the [law] is incorrect, the court improperly permits the jury
to adopt the prosecutor's version of the law.” People v. Anderson, 991 P.2d 319, 321
(Colo. App. 1999). Thus, an appellate court “can review counsel’s arguments to
avoid a miscarriage of justice notwithstanding the trial court’s failure or refusal to
do so.” Domingo-Gomez, 125 P.3d at 1050. We’ll disturb a trial court’s ruling on
prosecutorial misconduct if we find the trial court abused its discretion. See
People v. Strock, 252 P.3d 1148, 1152 (Colo. App. 2010).
¶17 Monroe objected to the prosecution’s arguments regarding retreat. Thus,
we review for harmless error and will reverse the judgment of conviction if there
is a reasonable probability that any error by the trial court contributed to Monroe’s
conviction. Crider v. People, 186 P.3d 39, 42 (Colo. 2008).
B. Failure to Retreat
¶18 In Colorado, a person may use physical force against another “in order to
defend himself or a third person from what he reasonably believes to be the use or
imminent use of unlawful physical force by that other person, and he may use a
degree of force which he reasonably believes to be necessary for that purpose.”
§ 18-1-704(1), C.R.S. (2019).
¶19 “In Colorado, only initial aggressors must retreat before using force in self-
defense.” Cassels v. People, 92 P.3d 951, 956 (Colo. 2004). So, a non-aggressor may
8 assert self-defense without (1) considering whether a reasonable person would
retreat to safety rather than resorting to physical force, or (2) actually retreating
from an attack even if she could safely do so. People v. Castillo, 2014 COA 140M,
¶ 74, __ P.3d __ (quoting People v. Toler, 9 P.3d 341, 347 (Colo. 2000)), rev’d on other
grounds, 2018 CO 62, 421 P.3d 1141.
¶20 Accordingly, the prosecution may not argue that a defendant is barred from
acting in self-defense unless she first retreats from an encounter. See Brown v.
United States, 256 U.S. 335, 343 (1921) (holding that retreat “is not a condition of
immunity”).
¶21 Still, the prosecution contends that we have already recognized the
distinction between improper arguments that impose a duty to retreat and proper
arguments regarding a defendant’s failure to retreat that undermine the
reasonableness of a defendant’s use of force. According to the prosecution, a jury
must consider the “totality of the circumstances” surrounding a defensive
encounter, which includes any available but unused avenues of retreat. They
contend that such evidence could be helpful to the jury in evaluating “the
reasonableness of the defendant’s belief that [s]he needed to use self-defense in the
given situation, and . . . the reasonableness of the actual force used by the
defendant to repel the apparent danger.” See Riley v. People, 266 P.3d 1089, 1094
(Colo. 2011).
9 ¶22 On the other hand, Monroe urges this court to prohibit, for any purpose,
argument regarding a defendant’s failure to retreat. She questions its probative
value and asserts that it will invite juries to improperly conduct a post hoc
examination of the reasonableness of the defendant’s conduct.
¶23 We agree with Monroe.
¶24 First, we reject the prosecution’s assertion that the Colorado Court of
Appeals has already recognized the permissibility of such argument. For support,
the prosecution points to Castillo and People v. Martinez, 224 P.3d 1026 (Colo. App.
2009). But in neither Castillo nor Martinez did the court of appeals permit the
prosecution to argue that the defendant didn’t act reasonably in self-defense
because the defendant failed to use an available avenue of retreat.
¶25 In Castillo, the prosecutor made multiple comments during closing
argument that implied the defendant should have retreated instead of using force.
¶ 72. The prosecution argued on appeal that such comments were meant to
impeach the defendant’s testimony that he couldn’t physically leave the scene. Id.
at ¶ 73. But the division noted that it was possible to interpret those comments
“as stating that it was unreasonable for defendant to shoot . . . rather than leave.”
Id. (emphasis added). Under this interpretation, it deemed the prosecutor’s
comments improper, since a person using defensive force need not consider
“whether a reasonable person in the situation would opt to retreat to safety rather
10 than resorting to physical force to defend against unlawful force.” Id. at ¶¶ 74, 77
(quoting Toler, 9 P.3d at 347).
¶26 The comments made by the prosecutor in Castillo (“He could have left. He
could have kept driving, but somebody said something that pissed him off,” id. at
¶ 72), are quite similar to those made by the prosecution here (“Again, she did not
have any duty to retreat but could have backed away, if she wanted to, if she was
actually afraid.”). The Castillo division considered such argument improper
commentary on the defendant’s failure to retreat. See id. at ¶¶ 74, 77. Thus, Castillo
does not support the prosecution’s position.
¶27 And neither does Martinez. The defendant there had already started to drive
away when he observed the victim leaving a bar. Martinez, 224 P.3d at 1029–30.
The defendant then stopped his car, and a fight ensued. Id. at 1030. The defendant
claimed that he acted in self-defense because he was “so scared and . . . nervous”
about the victim. Id. at 1033. During closing argument, the prosecutor challenged
those assertions, stating, “They could have left. They had the perfect opportunity
if [defendant] was so scared and he was very nervous about this.” Id. at 1031
(alteration in original). Defense counsel objected, arguing that the prosecutor’s
comments misstated the law because the defendant had no duty to retreat. Id.
¶28 But, when viewed in context, it’s clear that the prosecutor’s comments were
directed, not at the defendant’s failure to retreat once he felt threatened, but his
11 decision to enter the fray, which arguably made him an initial aggressor. Id. (quoting
the prosecutor as saying, “What happened? They made a U-turn. And you can
see it on that video. They didn’t back out of the parking lot and happen to drive
by. They made a U-turn and drove around for the confrontation.”). Further, the
trial court admitted the comments for that purpose. Id. (quoting the trial judge as
saying, “I think it’s in line with the instruction on the affirmative defense. If you’ll
note, we have some testimony that [defendant] was the initial aggressor.”). Thus, the
argument in Martinez wasn’t admitted for the purpose of undermining the
reasonableness of the defendant’s claim that he acted in self-defense.
¶29 So, no appellate court in Colorado (at least in a published opinion) has
permitted argument regarding an unused avenue of retreat, even if offered only
to attack the reasonableness of a defendant’s use of force. And we decline to do
so today.
¶30 To allow the prosecution to argue that a defendant’s failure to retreat
undermines the reasonableness of that defendant’s self-defense claim would
cripple the no-duty-to-retreat rule. The only inferences a jury could draw from
that line of argument are that, if retreat was possible but not pursued, a defendant
must not have acted reasonably by using force or must not have actually perceived
a threat, since she would have fled if she had. It thus conditions the use of
defensive force on flight, so the only defendants “who would not have to retreat
12 in the face of . . . force would be those who have no ability to retreat in the first
place.” Commonwealth v. Hasch, 421 S.W.3d 349, 361 (Ky. 2013).
¶31 Further, this type of argument is of limited value to a jury. The prosecution
contends that argument regarding a defendant’s failure to retreat is particularly
relevant to a defendant’s claim that she faced an imminent use of unlawful force.
But this argument is premised on a faulty assumption, since not all individuals
facing a threat respond by fleeing. See Karin Roelofs, Freeze for Action:
Neurobiological Mechanisms in Animal and Human Freezing, 372 Phil. Transactions
Royal Soc’y B 1, 1 (2017), https://royalsocietypublishing.org/doi/pdf/10.1098/
rstb.2016.0206 [https://perma.cc/48G3-6VTW] (“In stressful situations, . . . most
people tend to fall back on primary ‘freeze—fight—flight’ tendencies and have
great difficulty controlling their actions or shifting flexibly between passive
freezing and active fight-or-flight.”). Thus, a defendant’s decision to retreat is no
more proof that she faced an imminent threat of unlawful force than a decision to
remain and fight.
¶32 There’s also a significant risk that such argument would confuse a jury,
which weighs against allowing its admission. See CRE 403 (“Although relevant,
evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
13 cumulative evidence.”). Here, the prosecutors and trial court struggled to
distinguish between arguments that imposed an outright duty to retreat and those
that didn’t. How, then, can we trust that a jury won’t erroneously reject a
defendant’s self-defense claim simply because the defendant failed to retreat? See
Griego v. People, 19 P.3d 1, 8 (Colo. 2001) (observing that following an “erroneous
instruction precludes the jury from making a finding on the actual element of the
offense” (quoting Neder v. United States, 527 U.S. 1, 10 (1999))).3
¶33 Our prior statements directing juries to consider the totality of the
circumstances when assessing the reasonableness of a defendant’s use of force, in
Riley, 266 P.3d at 1094, and Kaufman v. People, 202 P.3d 542, 551 (Colo. 2009), don’t
require a different result. Beyond those general statements of law, Riley and
Kaufman are largely inapposite: Riley involved multiple assailants, 266 P.3d at 1091,
while Kaufman involved the effect that an erroneous jury instruction on second
degree assault had on the defendant’s self-defense claim, 202 P.3d at 550–51.
Neither case involved retreat, so neither required this court to consider how the
3 Although Griego involved an error in a jury instruction, id. at 4, its rationale remains relevant to this case: If a trial court were to expressly (albeit unintentionally) direct a jury to consider argument imposing a duty to retreat, this would preclude the jury from properly evaluating the defendant’s self-defense claim.
14 no-duty-to-retreat rule affects a jury’s ability to consider the “totality of the
circumstances.”
¶34 If anything, Riley and Kaufman affirm the principle that a jury should
consider a defendant’s perception of events as they unfold. Kaufman, 202 P.3d at
551; see also Riley, 266 P.3d at 1094 (permitting a jury to consider the number of
assailants “reasonably appearing to be threatening the defendant”). And allowing
argument regarding an unused avenue of retreat might encourage a jury to
erroneously focus just on the reasonableness of a defendant’s response to a threat
without actually linking that response to the reasonableness of a defendant’s
perception of a threat. Cf. Brown, 256 U.S. at 343 (“Detached reflection cannot be
demanded in the presence of an uplifted knife.”).
¶35 True, there’s an analytical distinction between completely barring
defendants from asserting self-defense unless they attempt to flee and arguing that
an avenue of retreat undermines the reasonableness of a defendant’s use of force.
See id. (“Rationally the failure to retreat is a circumstance to be considered with all
the others in order to determine whether the defendant went farther than he was
justified in doing; not a categorical proof of guilt.”). But, though “in the abstract,
the [prosecution’s] theory is metaphysically appealing,” it would prove
unworkable in reality. Hasch, 421 S.W.3d at 362–63. The line between argument
that imposes a duty to retreat (a threatened person should retreat instead of using
15 force) and argument that undermines the reasonableness of a defendant’s use of
force (a threatened person would retreat instead of using force) is too thin to allow
the latter.4
C. Harmless Error ¶36 Having clarified that trial courts should not permit the prosecution to argue
that an unused avenue of retreat undermines the reasonableness of a defendant’s
self-defense claim, we next consider whether it was error to allow the
prosecution’s statements on retreat during closing and rebuttal closing arguments.
We need not engage in lengthy discussion to resolve that inquiry—in its opening
brief, the prosecution admits that each statement directed the jury to consider
Monroe’s failure to retreat as relevant to whether she reasonably believed that she
needed to act in self-defense. In light of our decision today categorially prohibiting
argument regarding a defendant’s failure to retreat, all five of the prosecution’s
statements regarding Monroe’s failure to retreat were improper. Accordingly, the
trial court abused its discretion by permitting their admission.5
4 To the extent other states permit juries to consider argument regarding a defendant’s failure to retreat, we decline to follow suit in light of the many concerns that caution against such an approach. And we’re not alone in doing so. See Hasch, 421 S.W.3d at 363. 5The division found error because (1) the prosecution impermissibly argued that Monroe had a duty to retreat when it asserted that “a reasonable person would move from [the danger]” and running away was “the appropriate thing to do”; 16 ¶37 This error wasn’t harmless. The prosecution raised this improper argument
five times—twice during closing argument and three times during rebuttal
closing. See People v. Walters, 148 P.3d 331, 335 (Colo. App. 2006) (noting that
“whether the misconduct was repeated” is relevant to whether reversal is
warranted). And the trial court expressly directed the jury to consider Monroe’s
failure to retreat when determining “whether or not she reasonably believed there
was an imminent use of force.” Thus, there’s a significant risk that the jury
convicted Monroe because it erroneously believed that her failure to retreat
necessarily negated the reasonableness of her use of force. See Cassels, 92 P.3d at
956 (noting that failure to instruct a jury on the doctrine of no-retreat “creates a
risk that the jury will not acquit the defendant because it will consider the
defendant’s use of force unreasonable in light of the possibility of retreat”).6
and (2) the trial court should have sustained defense counsel’s objections to these statements. Monroe, ¶¶ 23–25. The prosecution seeks review of both issues. Because we hold that it was improper for the prosecution to argue that Monroe’s failure to retreat undermined the reasonableness of her claim of self-defense, we need not also consider whether any of the prosecution’s arguments ultimately imposed a duty to retreat. Thus, we decline to do so. 6In Cassels, the jury wasn’t instructed on the doctrine of no-retreat, id. at 954, while the jury here was. But the prosecution’s arguments regarding Monroe’s failure to retreat create the same risks identified by this court in Cassels; namely, that a jury will not consider a defendant’s use of force reasonable unless the defendant utilized any available avenues of retreat.
17 ¶38 Also, the evidence against Monroe wasn’t overwhelming. See Walters,
148 P.3d at 335 (noting that “the strength of the evidence” is relevant to whether
reversal is warranted). As the division noted, “while the presentation of evidence
lasted approximately two days, the jury deliberated for almost as long.” Monroe,
¶ 31. And the parties disputed both whether Monroe acted as the initial aggressor
and whether the victim posed a threat to her when he reached into his pocket.
Accordingly, there is a reasonable probability that the trial court’s error
contributed to Monroe’s conviction.
III. Conclusion
¶39 We affirm the judgment of the court of appeals on different grounds.
Accordingly, we reverse Monroe’s judgment of conviction and remand the case
for a new trial.
CHIEF JUSTICE COATS dissents, and JUSTICE BOATRIGHT joins in the dissent.
18 CHIEF JUSTICE COATS, dissenting.
¶40 Because I believe the majority misapprehends our rationale for not
conditioning self-defense on first retreating; because it fails to distinguish
prosecutorial misconduct from considerations of evidentiary relevance; and
because it generally restricts prosecutorial argument in a way that I not only
believe to be unjustified but also to conflict with our prior holdings on the subject,
I respectfully dissent.
¶41 Initially, the majority’s rationale for finding the prosecutor’s argument
improper, and therefore for finding an abuse of discretion by the trial court in
permitting it, remains far from clear to me. Rather than consistently relying on
any heretofore accepted rubric for designating prosecutorial argument improper,
or misconduct, for the bulk of its opinion the majority simply twists itself into
knots in an attempt to explain why the prosecution is wrong in asserting that we
have previously approved argument of this kind. Whether one finds that attempt
persuasive or not, it clearly offers no counter rationale for now dubbing the
argument improper.
¶42 By articulating the standard of review for prosecutorial misconduct and
referring to a “no-duty-to-retreat rule,” the majority at times appears to analogize
comment on a defendant’s failure to retreat before using deadly force in defense
of his person to comment on his exercise of a constitutional right. While it is clearly
1 improper, for example, for a prosecutor to comment on a defendant’s exercise of
his privilege against self-incrimination, either by declining to make a statement
while in police custody, see Doyle v. Ohio, 426 U.S. 610, 611 (1976), or by declining
to testify at trial, see Griffin v. California, 380 U.S. 609, 615 (1965), or to comment on
a defendant’s exercise of his right to be tried to a jury rather than to the court, see
People v. Rodgers, 756 P.2d 980, 983 (Colo. 1988), overruled on other grounds by
People v. Miller, 113 P.3d 743, 748–49 (Colo. 2005), the failure to require retreat as a
prerequisite to the use of deadly force in self-defense reflects a judicial
interpretation of the affirmative defense itself. Not only is it not a process right as
to the exercise of which a jury is precluded from drawing any inference
whatsoever; it is in fact a legal interpretation of the defense, as to which the jury is
expressly entitled to be made aware.
¶43 A person may not use a greater degree of physical force in self-defense than
he reasonably believes to be necessary for that purpose, and he is expressly barred
from using deadly physical force unless he reasonably believes a lesser degree of
force will be inadequate. See § 18-1-704(1)–(2), C.R.S. (2019). As we have
previously explained in some detail, it is the long-established rule in Colorado that
the failure to retreat cannot be considered evidence that a lesser degree of force
would have been adequate. Idrogo v. People, 818 P.2d 752, 756 (Colo. 1991). Because
this would not be apparent to the jury from instructions defining self-defense
2 alone, we have expressly held that a defendant raising this defense is entitled to
have the jury separately instructed that he had no duty to retreat before using
deadly force. Id. at 756–57. The question of a duty to retreat is therefore hardly
something of which the jury may not be made aware.
¶44 At times the majority appears to suggest that comment on the defendant’s
failure to retreat is a question of relevance. The majority does not suggest that the
prosecutor was commenting on evidence outside the record or that evidence of the
defendant’s failure to retreat before stabbing the victim was itself inadmissible.
Nor does the majority suggest that the prosecutor was asking the jury to draw any
unreasonable inference about the elements of self-defense from the defendant’s
failure to retreat. By reference to Rule 403 of the Colorado Rules of Evidence, it
merely finds that there was too great a risk that the prosecutor’s argument about
reasonable inferences that could be drawn from this admissible evidence would
confuse the jury.
¶45 It would indisputably have been improper for the prosecutor to imply
through his argument that the defendant did have a duty to retreat before using
force against the victim, but in light of his express warnings to the contrary, that
clearly could not have been the case. Each time the prosecutor argued that the
defendant’s failure to retreat, notwithstanding the ease with which she could have
simply moved away from where the victim was sitting on the bus, was relevant to
3 the question whether she actually believed she had to defend herself against an
imminent use of unlawful physical force by that victim, he emphasized that the
defendant nevertheless did not have any duty to retreat before using deadly force.
In related contexts we have long made clear that prosecutors are not precluded
from asking the jury to draw reasonable inferences from the evidence, as long as
they are careful not to mislead the jury concerning their ultimate burden of proof
or the right of the defendant not to explain or produce evidence. See People v.
Medina, 545 P.2d 702, 702–03 (Colo. 1976) (no error when prosecutor commented
during rebuttal closing on defendant’s failure to produce alibi witness, where jury
was warned that defendant had no obligation to produce evidence and
prosecution still had burden of proof).
¶46 Ours is an adversarial system of justice. While attorneys are clearly
prohibited from misleading the jury or prompting the jury to act for improper
reasons, limiting one side from asking the jury to draw reasonable inferences from
evidence properly admitted at trial skews the process and detracts from its truth-
seeking goal. As the venerated Judge Learned Hand long ago observed:
While, of course, we recognize that the prosecution is by custom more rigidly limited than the defense, we must decline to assimilate its position to that of either judge or jury, or to confine a prosecuting attorney to an impartial statement of the evidence. He is an advocate, and it is entirely proper for him as earnestly as he can to persuade the jury of the truth of his side, of which he ought to be thoroughly convinced before he begins at all. To shear him of all oratorical emphasis, while leaving wide latitude to the defense, is to load the 4 scales of justice; it is to deny what has always been an accepted incident of jury trials, except in those jurisdictions where any serious execution of the criminal law has yielded to a ghostly phantom of the innocent man falsely convicted.
Di Carlo v. United States, 6 F.2d 364, 368 (2d Cir. 1925).
¶47 In light of the instructions on self-defense to which the jury was entitled and
those it was actually given, nothing in the prosecutor’s argument in this case could
even remotely have been taken to suggest that the defendant’s failure to retreat
was evidence from which the jury should find that a lesser degree of force would
have been adequate or that she was not entitled to assert the defense at all.
¶48 Because I believe the majority reaches an incorrect result in reversing the
defendant’s conviction and sets a bad precedent for enforcement of the criminal
law in the jurisdiction, I respectfully dissent.
I am authorized to state that JUSTICE BOATRIGHT joins in this dissent.