People v. Newell

COLORADO COURT OF APPEALS 2017COA27

Court of Appeals No. 15CA1306
Arapahoe County District Court No. 14CR2503
Honorable John R. Lowenbach, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

John Robert Newell,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE RICHMAN
Harris and Plank*, JJ., concur

Announced March 9, 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

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶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

1McDowell referred to the weapon as a “switchblade,” and a
detective referred to the weapon as a “cut-throat razor,” but it was
undisputed that the weapon came from defendant’s barber school

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 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

kit, and an exhibit admitted at trial confirmed that the weapon was
a straight-edge razor.

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 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

2Officer Green testified that he measured the scissors and that the
scissors had four-inch blades.

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 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

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 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

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 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.

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 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

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 (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

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 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 physical
force upon another person 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).

¶ 24 Section 18-1-704 also provides exceptions. Using physical

force in self-defense is not justified when the defendant is the initial

aggressor and did not effectively withdraw from the encounter

before applying the force used in self-defense. § 18-1-704(3)(b).

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¶ 25 When a trial court is presented with some evidence that a

defendant used force in self-defense, and some evidence that the

defendant is the initial aggressor, the court should instruct the jury

on both self-defense and the initial aggressor exception. See People

v. Roadcap, 78 P.3d 1108, 1113 (Colo. App. 2003); see also People

v. Griffin, 224 P.3d 292, 300 (Colo. App. 2009) (where there was

evidence that the victim threatened the defendant before reaching

into his truck and evidence that the defendant shot him in the

back, the trial court did not err in giving both instructions); People

v. Montoya, 928 P.2d 781, 784 (Colo. App. 1996) (where there was

evidence that the defendant shot at a car and evidence that the

victim was acting in concert with the driver when later following

defendant into an alley, the trial court did not err in giving both

instructions). It is then the prosecution’s burden to prove beyond a

reasonable doubt that defendant’s conduct was not authorized as

self-defense; the prosecution may meet that burden by proving that

the defendant was the initial aggressor. See COLJI-Crim. H:11

(2016).

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 2. Analysis

¶ 26 We conclude that the evidence received at trial, summarized in

Part I, although conflicting, was sufficient to entitle defendant to a

self-defense jury instruction. The evidence that (1) McDowell saw

Albert holding a pair of scissors; (2) defendant had a cut on his face

which could be consistent with a cut from a pair of scissors; (3) no

witness could explain how defendant was injured; (4) Albert

“scuffled” with defendant; and (5) Albert threw a chair at defendant

could permit a trier of fact to conclude that defendant acted in

self-defense.

¶ 27 Though Albert testified that defendant was the initial

aggressor, and no witness testified to the contrary, defendant need

not disprove that he was the initial aggressor in order to benefit

from a self-defense instruction when any evidence — even slight,

unreasonable, or improbable evidence — supports his theory of

self-defense. People v. Dillon, 655 P.2d 841, 845 (Colo. 1982) (“The

general rule in Colorado is that an instruction embodying the

defendant’s theory of the case must be given if there is any evidence

in the record to support it . . . no matter how improbable or

unreasonable defendant’s theory is.”). Instead, it is the

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 prosecution’s burden to prove an exception to self-defense. See

People v. Pickering, 276 P.3d 553, 555 (Colo. 2011) (If the evidence

at trial raises the issue of an affirmative defense, “the affirmative

defense effectively becomes an additional element, and the [district]

court must instruct the jury that the prosecution bears the burden

of proving beyond a reasonable doubt that the affirmative defense is

inapplicable.”).

¶ 28 It is for the jury, not the judge, to decide which witnesses and

even which version of the witnesses’ testimony is to be believed.

See People v. Barker, 189 Colo. 148, 149, 538 P.2d 109, 110 (1975)

(“It is axiomatic that the jury is the sole judge of the credibility of

the witnesses.”); see also People v. Ramirez, 30 P.3d 807, 808-09

(Colo. App. 2001) (a limitation on a judge’s power “is premised on

the basic principle that the jury should decide the difficult

questions of witness credibility and the weight to be given to

conflicting evidence”). Once the defendant offers a scintilla of

evidence of self-defense, and the prosecution has offered evidence

that the defendant was the initial aggressor, the jury should be

provided with the self-defense instruction, including the initial

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 aggressor exception, and be permitted to weigh the evidence to

decide whether self-defense has been disproved.

¶ 29 We are not persuaded by the People’s argument that the

evidence here supporting a self-defense instruction is “mere

speculation” equivalent to “no evidence.” Circumstantial evidence,

such as the evidence here, is “some evidence” from which a jury

could infer that Albert was the initial aggressor. Moreover, this case

is unlike People v. Schliesser, where the defendant admitted to

striking the first blow and provided no justification. 671 P.2d 993,

994-95 (Colo. App. 1983). Here, the district court itself found some

evidence for the affirmative defense of self-defense as codified in

section 18-1-704 and mirrored in the model jury instructions. See

Idrogo, 818 P.2d at 754; COLJI-Crim. H:11 (2016). And because

the court found some evidence, it should have given the jury an

instruction on self-defense.

¶ 30 Because the district court failed to properly instruct the jury

on the applicable law of self-defense, the prosecution did not bear

the burden of disproving self-defense, and defendant was deprived

of his right to acquittal on that ground. See Idrogo, 818 P.2d at

756. Accordingly, the error was not harmless and we must reverse.

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 See People v. DeGreat, 2015 COA 101, ¶ 18 (the trial court’s refusal

to give a self-defense instruction lowered the prosecution’s burden

of proof and was not harmless) (cert. granted Aug. 1, 2016).

¶ 31 We conclude that a self-defense instruction should be given

when there is any evidence — including circumstantial evidence —

that a defendant acted in self-defense. The defendant need not

provide direct evidence that he was not the initial aggressor.

Instead, the language of the initial aggressor exception should be

given in the self-defense instruction when the prosecution points to

some evidence that the defendant was the initial aggressor. The

jury can then decide if the prosecution met its burden of proof.

B. Evidence That Defendant Knew of Prior Violent Act

¶ 32 Albert had been convicted of a violent crime — armed robbery

— approximately thirty-seven years before the altercation, and the

district court allowed defendant to admit that evidence for

impeachment purposes. Defendant then attempted to elicit

evidence from Albert that defendant knew about Albert’s conviction,

in order to bolster his self-defense argument by showing that

defendant had a reasonable belief that Albert would imminently use

unlawful force against him, but the court would not allow it.

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¶ 33 Defendant argues on appeal that this ruling violated his right

to confront and cross-examine a witness and to present a

meaningful defense. Because this issue is only relevant in the

context of an affirmative defense of self-defense, which was not

permitted in this case, we need not resolve the issue.

¶ 34 Insofar as the issue may arise on remand, we offer the

following guidance: whether an act of violence or defendant’s

discovery of such act is “too remote to create . . . an apprehension

or fear sufficient to justify the force used by defendant . . . is a

matter committed to the sound discretion of the trial court.” People

v. Vasquez, 148 P.3d 326, 331 (Colo. App. 2006).

IV. Conclusion

¶ 35 Because we conclude that defendant was entitled to a

self-defense jury instruction, we reverse and remand for a new trial

on second degree assault, acting upon a provoked and sudden heat

of passion, a class 6 felony.

JUDGE HARRIS and JUDGE PLANK concur.

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