People v. Monroe

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
August 9, 2018

2018COA110

No. 13CA1604 People v. Monroe — Criminal Law — Affirmative
Defenses — Self-Defense — Use of Physical Force in Defense of
a Person

A division of the court of appeals considers whether a

prosecutor’s discussion of the availability of an avenue of retreat

impermissibly suggests a duty to retreat before acting in self-

defense. The division concludes that the prosecutors’ comments in

this case functioned to impose a duty to retreat and were therefore

improper. The division further concludes that the prosecutors’

repeated misstatement of the law, ultimately acquiesced to by the

trial court, created a reasonable probability that the jury would

convict the defendant without considering the actual elements of

the affirmative defense of self-defense.

Accordingly, the division reverses and remands for a new trial.
COLORADO COURT OF APPEALS 2018COA110

Court of Appeals No. 13CA1604
City and County of Denver District Court No. 11CR4258
Honorable John W. Madden IV, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sheila R. Monroe,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE TOW
Dailey and Dunn, JJ., concur

Announced August 9, 2018

Cynthia H. Coffman, Attorney General, Matthew S. Holman, First Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Anne T. Amicarella, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Sheila R. Monroe, was convicted of attempted first

degree murder and first degree assault after stabbing another

passenger on a city bus. The trial court adjudicated her a habitual

criminal and sentenced her to concurrent prison terms of ninety-six

years on the attempted murder count and forty-eight years on the

assault count.

¶2 We reverse the convictions and remand for a new trial.

I. Background

¶3 At trial, the jury heard the following evidence. Monroe

boarded an RTD bus and sat down next to James Faulkenberry.

The two almost immediately began to argue. Various witnesses

testified that both parties were being aggressive. The jury also

heard that Monroe displayed a knife, called an acquaintance over,

and suggested the acquaintance had a firearm. Eight to ten

minutes after the dispute began, Monroe stabbed Faulkenberry in

the neck. At trial, Monroe did not testify, but her counsel asserted

that Monroe had been acting in self-defense.

¶4 In closing, the prosecution argued that the stabbing was in

response to Faulkenberry’s threat to call the police. The defense

argued Monroe’s actions were in response to Faulkenberry’s

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 threatening behavior and that she only used force in self-defense

because, after eight to ten minutes of heated argument,

Faulkenberry suddenly reached into his jacket.

II. Analysis

¶5 Monroe argues the trial court committed reversible error when

it permitted the prosecution to argue that the jury should consider

Monroe’s failure to retreat when deciding whether she had acted in

self-defense. Because the prosecution’s argument effectively

imposed on Monroe a duty to retreat, we agree.

A. The Prosecutors’ Arguments

¶6 During closing argument, one of the prosecutors pointed out

that Monroe could have retreated but did not. Specifically, the

prosecutor argued, “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.”

¶7 Defendant’s counsel objected. The court overruled the

objection, stating to the jury, “[Y]ou cannot find that she has a duty

or obligation to retreat. But this is an argument as to whether or

not she reasonably believed there was an imminent use of force. I’ll

allow it for that purpose only.” The prosecutor immediately

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 continued in the same line of argument: “Again, she did not have

any duty to retreat but could have backed away, if she wanted to, if

she was actually afraid.”

¶8 During rebuttal, the other prosecutor revisited the topic of the

available avenue of 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.” The defense again

objected, and again the court overruled the objection while

instructing the jurors that they could use her lack of retreat “as

evidence in considering whether or not an individual . . . reasonably

believed there was a[n] imminent use of physical violence as set

forth in [the relevant jury instruction],” but that they could not use

the evidence “to say she didn’t withdraw, therefore she cannot use

that as a defense.” The court further told the jury to “consider that

to be an argument to you as to what was reasonably believed or not

believed,” and then let the prosecutor continue with rebuttal.

¶9 Immediately after this ruling, the prosecutor made the

following statements:

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  “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.”

 “She knows [running away is] the appropriate thing to

do. She doesn’t do that, ladies and gentlemen, because

she’s not acting in self-defense.”

The judge once again overruled the defense’s objections and

permitted the argument.

B. Standard of Review

¶ 10 Whether a prosecutor’s statements during closing arguments

rise to the level of misconduct is generally left to the discretion of

the trial court. Domingo-Gomez v. People, 125 P.3d 1043, 1049

(Colo. 2005). “Any improper argument by either counsel must be

dealt with promptly by the trial court.” Id. The prosecutor must

“scrupulously avoid comments that could mislead or prejudice the

jury.” Id.

¶ 11 We will not disturb a trial court’s rulings regarding

prosecutorial misconduct absent an abuse of discretion. People v.

Strock, 252 P.3d 1148, 1152 (Colo. App. 2010). When the

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 defendant has objected, we review for harmless error, and thus will

only reverse if there is a reasonable probability that the error

contributed to the defendant’s conviction. Id.

C. The Availability of a Path of Retreat

¶ 12 Under Colorado’s self-defense statute, 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. 2017. A person who

reasonably perceives an imminent use of unlawful physical force is

entitled to use force in defending himself or herself “without first

retreating, or seeking safety by means of escape.” Cassels v. People,

92 P.3d 951, 956 (Colo. 2004). Such a person “does not have to

consider whether a reasonable person in the situation would opt to

retreat to safety rather than resorting to physical force to defend

against unlawful force.” People v. Toler, 9 P.3d 341, 347 (Colo.

2000).

¶ 13 In this case, the prosecution raised the issue of the availability

of retreat five separate times during its closing and rebuttal

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 arguments. The first three times 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.

¶ 14 The second argument may or may not have been proper.

Monroe argues that it is categorically improper. Essentially, she

argues that permitting a jury to consider the lack of retreat when

assessing a defendant’s belief that the use of force by another is

imminent would in effect impose a duty to retreat, because the only

way a defendant could convince someone that he or she had such a

belief would be to do something (retreat) he or she has no obligation

to do. The People, citing People v. Martinez, 224 P.3d 1026 (Colo.

App. 2009), aff’d on other grounds, 244 P.3d 135 (Colo. 2010),

counter that evidence of lack of retreat is germane to a defendant’s

reasonable belief of the need for self-defense. Martinez, however, is

inapposite.

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¶ 15 In Martinez, the defendant and a codefendant were charged

with assault after beating a man outside of a bar. At trial, the

defendant asserted self-defense. The evidence showed that the

defendant was driving away when the victim walked out of the bar.

Id. at 1029-30. The defendant turned around, got out of his car,

and approached the victim. Id. Though the evidence regarding how

the ensuing altercation began was conflicting, the victim ultimately

suffered a broken orbital bone and jaw bone, and had several teeth

knocked out. Id. The defendant claimed at trial that he acted in

self-defense because he was “scared and . . . nervous” about the

victim, and that the victim “had a black belt.” Id. at 1033.

¶ 16 During closing, the prosecutor told the jury that the defendant

had “made a U-turn and drove around for the confrontation.” Id. at

1031. The prosecutor continued, stating the defendant and co-

defendant “could have left. They had the perfect opportunity if

[defendant] was so scared and he was very nervous about this.” Id.

¶ 17 In context, the prosecutor’s argument was not about whether

the defendant should have retreated from an ongoing confrontation,

but rather whether the defendant should have instigated the

confrontation in the first place. In fact, in overruling the

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 defendant’s objection, the court noted, “we have some testimony

that [defendant] was the initial aggressor.” Id. We therefore do not

agree that Martinez supports pointing to an unused avenue of

retreat as evidence of a defendant’s lack of belief in the need for

force.

¶ 18 There 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.

We have significant concern that any use of the evidence of an

unused avenue of retreat would unavoidably misdirect a jury into

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 considering the reasonableness of a defendant’s response to a

threat rather than the perception of the threat in the first place.

¶ 19 Indeed, here, the prosecutors themselves struggled with, and

ultimately failed to maintain, the distinction in their own

arguments. That being said, because we conclude that the

prosecution’s argument here inappropriately imposed a duty to

retreat, we leave 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. We will thus refer to the use of this argument as “arguably

proper.”

D. The Imposition of a Duty to Retreat

¶ 20 In the prosecutor’s first reference to the unused avenue of

retreat, he noted that “she does have a clear line of retreat, if she’s

actually scared for her safety.” The jury could have heard that as “a

scared person should retreat instead of using force” — a patently

improper argument. Defense counsel apparently heard it that way,

as he raised an objection that the prosecutor was asserting a duty

to retreat. The court disagreed and overruled the objection but,

apparently recognizing this ambiguity, attempted to clarify for the

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 jury that it would be permitted to consider the lack of retreat as

evidence that defendant did not actually believe there was an

imminent use of force, but not for the improper purpose of

considering whether her actions in not retreating were reasonable.

¶ 21 Despite the court’s guidance, the prosecutor immediately

restated the argument in equally ambiguous terms, arguing that

she “could have backed away, if she wanted to, if she was actually

afraid.”1 Again, this language may be directed at her perception

and belief, or improperly directed at the reasonableness of her

conduct in not retreating.

¶ 22 Significantly, even after the court’s attempt to articulate the

parameters of the argument it would permit regarding the

availability of retreat, the prosecution did not alter course. Indeed,

on rebuttal closing, the arguments moved further outside those

parameters, ultimately abandoning any effort to tie the evidence to

1 Each time, the prosecutor prefaced his argument with an
acknowledgment that Monroe had no duty to retreat. This
statement alone, however, did not eliminate the ambiguity in the
argument. See People v. Castillo, 2014 COA 140M, ¶¶ 72-74 (noting
that similar comments, including the reiteration of the no duty to
retreat rule, were subject to multiple interpretations), rev’d on other
grounds, 2018 CO 62.

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 Monroe at all, let alone to her perception or belief. First, the

prosecutor asserted that “[w]hen you do not remove yourself from a

situation when you easily can, that contradicts that you were in

fear of being hurt.” As with the assertions during the first closing

argument, this statement could merely be an argument that

Monroe’s actions would not support a finding that she actually

believed the use of force was imminent; but it is at least as likely to

be an argument that any person who does not take advantage of a

path of retreat by definition does not believe force will be used

against her. The latter would be clearly improper, as it would

impose a de facto duty to retreat.

¶ 23 Monroe again objected, and the court did not sustain the

objection, but reiterated what use of this evidence it would permit.

Yet, the prosecution’s argument went from ambiguous to clearly

improper. Specifically, the prosecutor argued that “a reasonable

person would move from [the danger].” This is unequivocally an

argument that Monroe had a duty to retreat.

¶ 24 At this point, the court should have sustained Monroe’s

objection and instructed the jury to disregard the argument.

Instead, the court overruled the objection and explicitly treated this

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 objection (and, implicitly, the ruling on the objection) as exactly the

same as the previous objections and rulings. The prosecutor then

continued down this misleading path, arguing that retreating was

“the appropriate thing to do.” Again, the court overruled Monroe’s

objection and permitted the prosecutor to pursue this line of

argument.

¶ 25 When a prosecutor misstates the law and, upon objection, the

court “declines to direct the jury that the prosecutor’s version of the

instruction 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). In its initial rulings, the court

here attempted to redirect the jury toward an arguably proper use

of the evidence. However, the last two statements by the

prosecution unambiguously and improperly focused entirely on the

reasonableness of Monroe’s conduct, rather than on her belief or

what her conduct demonstrated about her belief, and thus

effectively imposed a duty to retreat. More importantly, the trial

court did not remedy these improper statements. In essence, the

trial court permitted the jury to believe that it could consider

whether a reasonable person would have retreated, in direct

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 contravention of the instruction that no such duty exists. In so

doing, the trial court abused its discretion.

E. Harmlessness

¶ 26 Having 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

formally instructed regarding the duty to retreat.2 Finally, we do

not discount the long-established premise that we presume that the

jury follows the instructions it is given.

¶ 27 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.

2 We note that the actual form of the written jury instruction
contains a typographical error, in that it placed the “no duty to
retreat” language within the second subparagraph of the first
paragraph, instead of standing alone. Monroe asserts that this
placement had the effect of misleading the jury into considering the
“no duty to retreat” as germane only to the second of the two
elements of the defense. Because the specific format of the
instruction does not contribute to our ruling, and in light of our
resolution of the prosecutorial misconduct claim, we do not address
Monroe’s assertion of error in this regard.

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¶ 28 When boiled down to its essence, the progression transpired

as follows: three times, the prosecution made an argument that

could have been interpreted as either improper or arguably proper.

The trial court told the jury to consider the statement to be

advancing the arguably proper argument. Thereafter, the

prosecution unambiguously advanced the improper argument. The

court again overruled the objection and permitted the argument,

and in so doing explicitly accepted the improper argument as the

equivalent of the arguably proper one. Finally, the prosecution

again made the improper argument, and the court simply overruled

the objection with no effort to distinguish the two arguments. The

result of this progression is that, ultimately, the court placed its

stamp of approval on the improper argument (i.e., that “a

reasonable person would have retreated,” and that retreat was “the

appropriate thing to do”).

¶ 29 By permitting the prosecutors to argue that Monroe had a

duty to retreat, the court “permit[ted] the jury to adopt the

prosecutor’s version of the law.” Anderson, 991 P.2d at 321. When

the court finally acquiesced to the prosecution’s assertion that a

reasonable person would retreat, it directly contradicted its

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 instruction that Monroe had no duty to retreat. A reasonable jury

would be left with the erroneous understanding that while it would

not be permitted to impose an obligation or duty to retreat, it could

find that a reasonable person would have done so. Because of this

confusion, we cannot presume the jury correctly applied the

instruction it was given.

¶ 30 The creation of such confusion is no different than having not

instructed the jury at all, and carries the same risks. See Cassels,

92 P.3d at 956 (Failure to properly instruct the 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.”). Further,

following an “erroneous instruction precludes the jury from making

a finding on the actual element of the offense.” Griego v. People, 19

P.3d 1, 8 (Colo. 2001) (quoting Neder v. United States, 527 U.S. 1,

10 (1999)).3

3 While Griego addressed an affirmatively incorrect jury instruction,
the underlying rationale of the decision is nonetheless applicable in
this context, particularly in light of the mandate in Anderson. Since
the jury was permitted to be misled as to the impact of Monroe’s
failure to retreat, it cannot be said with any confidence that the jury

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¶ 31 Nor was the evidence of guilt in this matter overwhelming. We

note that, while the presentation of evidence lasted approximately

two days, the jury deliberated for almost as long. The evidence of

who was the initial aggressor and whether Faulkenberry posed a

threat when he reached into his pocket was in conflict.

¶ 32 The prosecutor encouraged the jury to reject Monroe’s claim of

self-defense solely because she failed to retreat. The trial court

allowed that argument to be made. In light of the irreconcilable

conflict between permitting the prosecution to argue that Monroe’s

lack of retreat was unreasonable and the instruction that she had

no duty to retreat, we conclude that it was reasonably probable that

the error contributed to the conviction.

¶ 33 Accordingly, the error was not harmless.

III. Monroe’s Other Contentions

¶ 34 In light of our resolution of this issue, and because we cannot

say whether Monroe’s other assertions of error are likely to occur

upon retrial, we need not address them.

properly evaluated the required element that the prosecution
disprove the affirmative defense of self-defense.

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 IV. Conclusion

¶ 35 The judgment is reversed, and the case is remanded for a new

trial.

JUDGE DAILEY and JUDGE DUNN concur.

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