People v. Newell, Court of Appeals No. 15CA1306

CourtCourt of Appeals of Colorado
Citation395 P.3d 1203
Docket NumberCourt of Appeals No. 15CA1306
Parties The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John Robert NEWELL, Defendant-Appellant.
Decision Date09 March 2017

Cynthia H. Coffman, Attorney General, Patrick A. Withers, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Julia Chamberlin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


¶ 1 Defendant, John Robert Newell, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree assault with a deadly weapon. The district court denied defendant's request for a self-defense instruction because the court found that he had not provided evidence that he was not the initial aggressor. We conclude that the district court erred by placing a burden on defendant to offer direct evidence that he was not the initial aggressor before allowing the jury to be instructed on self-defense, and we therefore reverse his conviction and remand for a new trial.

I. Background

¶ 2 Defendant shared an apartment with his girlfriend, Chantel McDowell, and his cousin, Eric Albert, who had been staying at the apartment for a couple of weeks. Defendant and Albert had an altercation, during which defendant cut Albert's back with a straight-edge barber razor, causing a wound

near his shoulder blade which required twelve stitches.1 Defendant was charged with second degree assault, a class 4 felony, and a violent crime sentence enhancer.

¶ 3 There were three eyewitnesses to the altercation: defendant, McDowell, and Albert. Of these, only McDowell and Albert testified at trial.

¶ 4 As relevant here, McDowell, who said that her relationship with defendant was strained at the time of the incident, testified that after having taken muscle relaxers and gone to bed early, she awoke when she heard defendant screaming, "get the fuck out of my house." She said that she entered the living room, where the two men were yelling at each other. On direct examination, she said that "at some point" she saw scissors in Albert's hand, but could not recall exactly when in the sequence of events she saw the scissors.

¶ 5 On cross-examination, she acknowledged that shortly after the incident, she told investigating Officer Anthony Green that as she came out of the bedroom, she saw defendant holding the razor and Albert holding a pair of orange-handled scissors.2 She testified that when she made that statement to Officer Green, the events were "fresh in [her] mind," and because she had just seen what had happened, it was "more likely to be what [she] actually saw." Officer Green confirmed that she reported seeing Albert with scissors when she entered the living room.

¶ 6 McDowell reported that defendant and Albert were standing near the front door when she exited the bedroom, and that Albert's back was toward the door, with nothing preventing his exit. She also testified that she later saw Albert cross the room, pick up a suede-backed dining room chair, and throw it toward defendant, who remained near the front door. Albert also testified that he threw a chair at defendant.

¶ 7 McDowell stated that the men began scuffling, and she went to the bedroom to call 911. During the 911 call, she reported that there were no injuries, yet minutes later realized that Albert had been cut. At trial, she testified that she had not seen when Albert was cut, and also confirmed that she had told Officer Green that defendant had slashed at Albert when Albert picked up the chair.

¶ 8 Albert offered inconsistent testimony about when he was cut. He testified that he was cut while on his hands and knees by the front door, before he threw the chair, but he also testified that he did not feel anything and that he did not know he was cut at the time.

¶ 9 McDowell admitted that she did not see the beginning of the argument and testified that she did not see Albert do anything that might have injured defendant's face.

¶ 10 Albert testified that the fight began when he asked defendant to turn off the light. After that, defendant "was up in [Albert's] face and then [they] got to scuffling," and then defendant hit him in the forehead. Albert testified that he never touched defendant, and that he had not been holding scissors.

¶ 11 Officer Cody Jones testified that when defendant was arrested, he had a cut near his right eye. Officer Jones took photos of defendant's face shortly after the altercation because defendant "said that his face started to hurt." One photo was admitted at trial. Two additional photos of defendant's cut, taken two days after the altercation, were also admitted.

II. Procedural Background

¶ 12 Defendant's theory of the case was that he had inflicted the injury to Albert in self-defense—that Albert had cut his face with the scissors before McDowell entered the room and that he then slashed at Albert because Albert had picked up a chair.

¶ 13 During voir dire, prospective jurors were questioned at length about their ability to apply the law with respect to a claim of self-defense. Both the prosecution and defendant referenced self-defense arguments at the opening of trial. And based on the evidence adduced at trial, summarized above, and the inference that Albert cut defendant's face with his scissors, defendant requested a jury instruction on self-defense. Defendant reiterated this request multiple times.

¶ 14 The prosecution argued that defendant had not produced a "scintilla of evidence" that he was not the initial aggressor because the only direct evidence of initial aggression was Albert's testimony, which pointed to defendant. And because defendant had produced no direct evidence that Albert had touched him, he was not entitled to a self-defense instruction. The prosecutor further argued that not being an initial aggressor is an element of self-defense and that defendant must show that he was not the initial aggressor.

¶ 15 Referring to the model jury instructions for self-defense, the district court found some evidence for elements (1) and (2)—that defendant used physical force in order to defend himself from what he reasonably believed to be the use or imminent use of unlawful physical force, and that he used a degree of force which he reasonably believed to be necessary. See COLJI-Crim. H:11 (2016). But because the court found not "even a scintilla of evidence" that defendant did not provoke an unlawful use of force by Albert or that defendant was not the initial aggressor—which it considered to be elements (3) and (4)—it refused to give the self-defense instruction. See id.

¶ 16 The jury found defendant guilty of second degree assault, acting upon a provoked and sudden heat of passion, which reduced the offense to a class 6 felony. The district court sentenced defendant to the custody of the Department of Corrections for a term of three years.

III. Discussion

¶ 17 On appeal, defendant contends that the district court (1) erred when it failed to give the jury a self-defense instruction and (2) abused its discretion by prohibiting elicitation of evidence that defendant knew about Albert's prior violent act. We agree with defendant's first contention, and we address the second only to the extent that it might arise on remand.

A. Self-Defense Instruction

¶ 18 Defendant argues that (1) the record contained, and the district court recognized, sufficient evidence to warrant a self-defense instruction; (2) he was not required to present evidence refuting the initial aggressor exception; and (3) the district court's failure to give the instruction violated his constitutional right to due process. The People argue that no credible evidence supported giving the instruction. We conclude that on appeal, as at trial, the People assert a higher standard than the law prescribes for the jury to be instructed on self-defense.

1. Standard of Review and Applicable Law

¶ 19 We review de novo whether sufficient evidence supports a self-defense jury instruction. People v. Garcia , 113 P.3d 775, 784 (Colo. 2005). When considering an affirmative defense instruction, we consider the evidence in the light most favorable to the defendant. Cassels v. People , 92 P.3d 951, 955 (Colo. 2004). Because defendant requested the instruction, any error in failing to give the instruction requires reversal unless the error did not affect defendant's substantial rights. People v. Garcia , 28 P.3d 340, 344 (Colo. 2001).

¶ 20 If there is any evidence in the record to support the theory that a defendant acted in self-defense, the defendant is entitled to an instruction, and a court's refusal to give one deprives the accused of his or her constitutional right to a trial by a jury. Idrogo v. People , 818 P.2d 752, 754 (Colo. 1991) ; People v. Janes , 962 P.2d 315, 319 (Colo. App. 1998), aff'd , 982 P.2d 300 (Colo. 1999).

¶ 21 While an affirmative defense requires a defendant to "present some credible evidence on that issue," § 18-1-407(1), C.R.S. 2016, this means just a "scintilla of evidence," that is, some evidence when viewed most favorably to the defendant that could support a jury finding in his favor, People v. Saavedra-Rodriguez , 971 P.2d 223, 228 (Colo. 1998). The small quantum of evidence that must appear in the record in order to warrant an instruction on an affirmative defense may come from any source, even from the prosecution. People v. Whatley , 10 P.3d 668, 670 (Colo. App. 2000).

¶ 22 A defendant is entitled to an affirmative defense instruction embodying his theory of the case "if the record contains any evidence to support the theory, even if the supporting evidence consists only of highly improbable testimony by the defendant." Garcia , 28 P.3d at 347.

¶ 23 The affirmative defense of self-defense is codified in the first subsection of section 18-1-704, C.R.S. 2016. Idrogo , 818 P.2d at 754. That statute provides, in relevant part, that

(1) ... a person is justified in using

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