People v. Mosely

• Decision Date: 07 June 2021
• Docket Number: Supreme Court Case No. 19SC819
• Citation: 488 P.3d 1074
• Court: Colorado Supreme Court
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Clarence MOSELY, Respondent.

488 P.3d 1074

The PEOPLE of the State of Colorado, Petitioner,

v.Clarence MOSELY, Respondent.

Supreme Court Case No. 19SC819

Supreme Court of Colorado.

June 7, 2021

Attorneys for Petitioner: Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Megan A. Ring, Public Defender, Meredith E. O'Harris, Deputy Public Defender, Denver, Colorado

En Banc

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

¶1 To convict a criminal defendant in Colorado, a jury must unanimously agree that the prosecution has proven the elements of the charged offense beyond a reasonable doubt. And where a defendant raises self-defense as an affirmative defense to the charged crime, it becomes an additional element that the prosecution bears the same burden of disproving. To do so, the prosecution may disprove at least one of the two conditions of self-defense: that the defendant (1) used physical force to defend himself or a third person from what he reasonably believed to be the use or imminent use of unlawful physical force from another person, or (2) used a degree of force that he reasonably believed to be necessary for that purpose. Alternatively, the prosecution may prove beyond a reasonable doubt that an exception to self-defense applies—for example, that the defendant provoked the use of unlawful physical force, or that the defendant was the initial aggressor. In this case, we consider whether a jury must unanimously agree on which component of self-defense the prosecution has disproven.

¶2 We conclude that, because a defendant has a right only to a unanimous general verdict, the jury need not unanimously agree on the specific reason that self-defense was disproven, so long as it unanimously agrees that the prosecution disproved self-defense beyond a reasonable doubt. Because the division below concluded otherwise, we reverse the judgment of the court of appeals and remand for reinstatement of the defendant's conviction.

I. Facts and Procedural History

¶3 In February 2015, off-duty police officers working as security removed Clarence Mosely from a strip club for engaging in aggressive behavior with other patrons. Mosely continued to be confrontational as he was ejected and then remained in the parking lot.

¶4 Ten to twenty minutes later, at around 1 a.m., the victim, T.K., left the club with a group of men celebrating a bachelor party. Neither T.K. nor other members of the group had been involved in the earlier altercation inside the club, though Mosely later told a detective that he was "more than sure" that T.K.'s group was affiliated with the group inside. When a member of the group got into a verbal disagreement with Mosely, T.K. intervened to separate the two, and a fight erupted. During the fight, Mosely stabbed T.K. in the abdomen with a small folding knife. Other members of the group restrained and purportedly hit Mosely until club security gained control of the situation.

¶5 The People charged Mosely with one count of first degree assault, one count of felony menacing, and two crime-of-violence enhancers. At trial, Mosely raised the affirmative defense of self-defense. The court instructed the jury that self-defense was an affirmative defense to both first degree assault and felony menacing, and that an element of each offense was "that the defendant's conduct was not legally authorized by the affirmative defense [of self-defense]."

¶6 The trial court then instructed the jury on the conditions of self-defense as well as the provocation and initial aggressor exceptions:

The defendant was legally authorized to use physical force upon another person without first retreating if:

1. he used that physical force in order to defend himself or a third person from what he reasonably believed to be the use or imminent use of unlawful physical force by that other person, and

2. he used a degree of force which he reasonably believed to be necessary for that purpose, and

3. he did not, with intent to cause bodily injury or death to another person, provoke the use of unlawful physical force by that other person, and

4. he was not the initial aggressor, or, if he was the initial aggressor, he had withdrawn from the encounter and effectively communicated to the other person his intent to do so, and the other person nevertheless continued or threatened the use of unlawful physical force.

¶7 The court also instructed the jury on the prosecution's burden with respect to self-defense:

The prosecution has the burden to prove, beyond a reasonable doubt, that the defendant's conduct was not legally authorized by this defense. In order to meet this burden of proof, the prosecution must disprove, beyond a reasonable doubt, at least one of the above numbered conditions.

After considering all the evidence, if you decide the prosecution has failed to meet this burden of proof, then the prosecution has failed to prove the defendant's conduct was not legally authorized by this defense, which is an essential element of the crimes of Assault in the First Degree and Menacing. In that event, you must return a verdict of not guilty of those offenses.

After considering all the evidence, if you decide the prosecution has met this burden of proof, then the prosecution has proved the defendant's conduct was not legally authorized by this defense.

In that event, your verdict concerning the charge of Assault in the First Degree and the charge of Menacing must depend upon your determination whether the prosecution has met its burden of proof with respect to the remaining elements of each of those offenses.

(Emphasis added.)

¶8 Finally, the court separately instructed the jury that "[t]he verdict for each charge ... must be unanimous. In other words, all [jurors] must agree to all parts of it." (Emphasis added.)

¶9 During deliberations, the jury asked the court to clarify whether it was required to unanimously agree on how self-defense was disproved:

With regard to [the self-defense instruction,] [d]o we have to unanimously agree on at least one of the factors, e.g., number 1, or do we need to unanimously agree that individually at least one of the factors, 1 through 4, was disproved?

Over Mosely's objection, the trial court responded:

In order for you to decide that the prosecution has met its burden of proof with respect to the affirmative defense of defense of person or self-defense, you have to unanimously agree that the prosecution has disproven at least one of the numbered conditions. However, there is no requirement that you unanimously agree on which numbered condition or conditions have been disproven.

(Emphasis added.)

¶10 The jury convicted Mosely of a lesser-included offense of second degree assault, felony menacing, and both crime-of-violence counts. The trial court sentenced Mosely to a total of nine years in prison.

¶11 Mosely appealed his convictions, contending, among other things, that the district court violated his due process rights when it instructed the jurors that they need not unanimously agree on how the prosecution disproved Mosely's affirmative defense of self-defense. A division of the court of appeals agreed and reversed Mosely's felony menacing conviction, remanding to the district court for a new trial and recommending that the trial court consider giving the jury special verdict forms to indicate how it believed the prosecution disproved self-defense. People v. Mosely, 2019 COA 143, ¶ 1, 487 P.3d 1157. However, the division affirmed Mosely's conviction for second degree assault, noting that the instruction did not apply to that charge. Id.

¶12 We granted the People's petition for writ of certiorari review.¹

II. Analysis

¶13 We begin by describing the requirement under Colorado law for a unanimous jury verdict to convict. We then discuss the interplay between the unanimity requirement and the affirmative defense of self-defense. Finally, we conclude that a jury need not unanimously agree on which component of self-defense the prosecution disproved beyond a reasonable doubt and thus that the jury instructions here were appropriate.

A. Due Process Does Not Require Jury Unanimity on the Specific Reason Self-Defense Was Disproven Beyond a Reasonable Doubt

1. The Unanimity Requirement

¶14 In Colorado, a jury verdict to convict must be unanimous. § 16-10-108, C.R.S. (2020); Crim. P. 31(a)(3) ; People v. Wester-Gravelle, 2020 CO 64, ¶ 30, 465 P.3d 570, 575 ("[A] Colorado criminal defendant is entitled to a unanimous jury verdict."). However, we have repeatedly clarified that "unanimity in a verdict is required ... ‘only with respect to the ultimate issue of the defendant's guilt or innocence of the crime charged and not with respect to alternative means by which the crime was committed.’ " People v. Archuleta, 2020 CO 63M, ¶ 20, 467 P.3d 307, 311 (quoting People v. Taggart, 621 P.2d 1375, 1387 n.5 (Colo. 1981) ); see also Taggart, 621 P.2d at 1387 (holding that a general verdict of guilty did not deprive the defendant of his right to a unanimous verdict where the court instructed the jury that the crime could be committed in alternative ways).

¶15 Thus, while jurors must unanimously agree on the elements of the charged offense, due process does not require the jury to unanimously agree on the " ‘several possible sets of underlying brute facts [that] make up a particular element’ or ‘[the] several possible means the defendant used to commit an element of the crime.’ " Archuleta , ¶ 20, 467 P.3d at 311 (quoting Richardson v. United States , 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) ).² As Justice Scalia once explained,

it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission. That rule is not only constitutional, it is probably indispensable in a system that requires a unanimous jury verdict to convict. When a woman's charred body has been found in a burned house, and there is ample evidence that

...