In a Recent Published Opinion, the Colorado Court of Appeals Examines the Limits of the Prosecution’s Ability to Argue Your Failure to Retreat.
Colorado case law is clear. The state “follows the [self-defense] doctrine of no-retreat, which permits non-aggressors who are otherwise entitled to use physical force in self-defense to do so without first retreating, or seeking safety by means of escape.” Moreover, the non-aggressor “does not [even] have to consider whether a reasonable person in [that] situation would opt to retreat to safety rather than resorting to physical force to defend against unlawful force.” This statutory right has existed in in some form in Colorado since 1868.
Prosecutors Are Sometimes Unaware of (or Ignore) the Case Law
However, despite this statutory right and clear line of case law, prosecutors sometimes overstep the bounds in arguing for a conviction. Such was the case in the matter of People v. Monroe. In Monroe, the prosecution made five separate arguments regarding the accused’s failure to retreat. On each of the five occasions, Monroe’s defense counsel objected to the arguments, but the trial court overruled the objections.
What is particularly interesting in this case is the language used by the prosecutors. As the Colorado Court of Appeals noted,
“The first three times [the prosecutors argued about retreating] were at least arguably subject to conflicting interpretations: that if Monroe believed force was going to be used against her, she should have retreated instead of resorting to force; or that Monroe not taking advantage of an available avenue of retreat suggests that she did not, in fact, believe force was going to be used against her. The first would clearly be improper, as it would seek to impose a duty to retreat. The second argument may or may not have been proper.”
In looking at this close call on the first three arguments, the court highlighted that
“[t]here is undeniable appeal to Monroe’s call for 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. First, since the common responses to a threat are ‘fight, flight, or freeze,’ it is far from clear what, if anything, a person’s lack of flight from a threat says about whether that threat was actually and reasonably perceived; the fact that the response was to fight instead of to flee may well be equally probative of the perception that a threat was imminent. Moreover, the line between the use of this evidence to judge one’s perception and the use of this evidence to judge one’s response to that perception is so fine as to be almost imperceptible.”
The Court of Appeals’ Concerns
Because of these problems, the Court articulated its
“significant concern that any use of the evidence of an unused avenue of retreat would unavoidably misdirect a jury into considering the reasonableness of a defendant’s response to a threat rather than the perception of the threat in the first place.”
Put simply, while the court “leave[s] for another day the issue of whether it would ever be proper to attack the veracity of a defendant’s claimed belief in the need for defensive force by highlighting an unused avenue of retreat,” it nevertheless appears the Colorado Court of Appeals is warning prosecutors to stay away from this line of argument.
It has long been held that in almost every criminal appeal, two things must be shown before a case is reversed: error and harm. What makes this case all the more compelling is the Court of Appeals’ acknowledgement that the things that normally prevent the courts from finding harm (and therefore preventing them from ruling for the accused) were present in this case. Nevertheless, it was not enough. Specifically, the court noted that
“[h]aving found error, we turn to whether that error was harmless. In so doing, we recognize that the court (and, for that matter, the prosecutors themselves) repeatedly stated that Monroe had no duty to retreat. We also acknowledge that the jury was [correctly] formally instructed regarding the duty to retreat. Finally, we do not discount the long-established premise that we presume that the jury follows the instructions it is given. Nevertheless, on the unique facts of this case, we find that there is a reasonable probability that the jury was misled, and that the misleading arguments contributed to the verdict.”
While not unheard of, such a ruling is unusual. To be sure, there were unique facts in this case. Despite this, however, it appears to me that the Court of Appeals’ “significant concern that any use of the evidence of an unused avenue of retreat would unavoidably misdirect a jury,” played a prominent role in its decision to reverse Monroe’s conviction.
This case provides two important lessons: 1) prosecutors should be wary of making arguments discussing an accused’s failure to retreat; and 2) defense counsel should be ready to object at the slightest hint of the prosecution making them. Such objections will provide a better chance on appeal of having the convictions overturned.
If you find yourself in need of an experienced appellate counsel, please feel free to contact my office. All initial consultations are free of charge and I’d welcome the opportunity to discuss your case.
 Cassels v. State, 92 P.3d 951, 956 (Colo. 2004).
 People v. Toler, 9 P.3d 341, 347-48 (Colo. 2000)
 Toler, 9 P.3d at 348.
 2018COA110 (Colo. App. 2018).
 2018COA110, slip op. at 2-4.
 Id. Such objections are critical to preserving the issue for an appeal.
 Id., slip op. at 2-4. The last two were deemed plainly improper. Id. at 10-11.
 Id. at 8.
 Id. at 9.
 See e.g., Moore v. People, 26 Colo. 213, 57 P. 857 (1899).
 Monroe, 2018COA110, slip op. at 13.