City and County of Denver District Court No. 08CR3151 Honorable Shelley I. Gilman, Judge
John W. Suthers, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Ned R. Jaeckle, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellan
¶ 1 OPINION is modified as follows:
Added the following paragraph after Paragraph 33 on page 17:
¶ 2 This does not mean that it is impossible for a defendant to demonstrate prejudice sufficient to justify reversal when a court gives a self-defense exception instruction that is not warranted by the evidence. Cf. Novotny, ¶ 31 (Hood, J, concurring in part and dissenting in part) (criticizing the majority's opinion for creating a rule of "automatic affirmance" because a defendant "may never be able to demonstrate prejudice" from a trial court's erroneous denial of a challenge for cause). For instance, jury confusion evidenced by a jury question could demonstrate such prejudice. Moreover, a situation could exist where a defendant so clearly acted in self-defense that no reasonable jury could reject self-defense without erroneously finding that the defendant provoked the unlawful use of force or was the initial aggressor. But that is not the case here. Rather, given the other, legitimate reasons the jury might have rejected defendant's self-defense claim — for example, by finding that firing a shotgun in the presence of bystanders was not a reasonable way to defend himself and his family — we cannot conclude that there is a reasonable probability the jury relied on the improperly given provocation instruction in rejecting self-defense.
¶ 3 Defendant, Andres Castillo, appeals the judgment of conviction entered on jury verdicts finding him guilty of two counts of attempted second degree murder and one count of second degree assault. Defendant argues: (1) the trial court erred in instructing the jury on the initial aggressor and provocation exceptions to self-defense; (2) the court erred in failing to include the burden of proof in its initial aggressor and provocation instructions; (3) the court erred in rejecting defendant's tendered instructions on the law of self-defense and on his theory of the case as to the second degree assault charge; (4) the prosecutor committed prosecutorial misconduct by making misstatements of fact and law during closing argument; and (5) the cumulative effect of these alleged errors deprived defendant of his right to a fair trial. After addressing and rejecting each of these arguments, we affirm.
¶ 4 Defendant, his wife, his cousin, and three of their friends went to a club in lower downtown Denver to celebrate his wife's birthday. After they left the club, they returned to defendant's car, which was parked in a nearby parking lot. Witnesses estimated that at least one hundred people were in or around the parking lot at that time, and some fighting had broken out.
¶ 5 While defendant and his group were waiting to exit the parking lot, an unidentified male said something to defendant through the open driver's door window. Defendant responded. No witness testified regarding what was said to defendant or what defendant replied, but one of defendant's companions testified that after the two men had exchanged some words, defendant started cursing at the other man.
¶ 6 Testimony was conflicting about what occurred next; most witnesses testified that defendant continued driving toward the exit but one witness testified that defendant stopped and got out of the vehicle. An unidentified male (who may or may not have been the same person who exchanged words with defendant) then pulled a handgun out of the waistband of his pants and fired multiple shots in defendant's direction, one of which struck defendant's car.
¶ 7 Thus, under one version of events, defendant stopped the vehicle after the handgun shooter began shooting, and under another, defendant stopped and got out of his vehicle before the handgun shooter started shooting. Under either version, however, defendant popped open the trunk before getting out of his car. Defendant then walked to the rear of the car, removed a shotgun from the trunk, and fired several rounds at the handgun shooter. In both versions of events, the handgun shooter began firing before defendant walked to the trunk and retrieved the shotgun.
¶ 8 Multiple police officers were in the area because of the fighting that had occurred. Two uniformed police officers, Sergeant Vincent Lombardi and Officer Jason Simmons, ran toward defendant's position and exchanged fire with defendant. One of defendant's pellets grazed Officer Simmons's stomach. Defendant was shot three times and fell to the ground. He either handed the shotgun to his cousin or his cousin took it from him. His cousin was then fatally shot by the police. The handgun shooter ran away and was never apprehended.
¶ 9 Defendant was charged with two counts of attempted first degree murder against Sergeant Lombardi and Officer Simmons, two counts of first degree assault on a peace officer, and five counts of second degree assault against bystanders who were hit with stray pellets from defendant's shotgun. Four of the second degree assault charges were later dismissed. A jury convicted defendant of two counts of the lesser included offense of attempted second degree murder and one count of second degree assault. The jury acquitted defendant on both counts of first degree assault against a peace officer.
¶ 10 Defendant received consecutive sentences of fourteen years imprisonment on each of the attempted second degree murder charges and five years on the second degree assault charge, for a total of thirty-three years.
II. Instructions on Self-Defense Exceptions
A. Initial Aggressor Instruction
¶ 11 Defendant argues that because no evidence supported an initial aggressor instruction, the trial court erred by instructing the jury that he was not entitled to self-defense if he was the initial aggressor. We disagree.
¶ 12 As part of its instruction on the affirmative defense of self-defense, the trial court instructed the jury, over defendant's objection, that
[self-defense] is not an affirmative defense . . . if the defendant was the initial aggressor unless: (A) the defendant withdrew from the encounter, and (B) effectively communicated to the other person his intent to do so, and (C) the other person nevertheless continued or threatened the use of unlawful physical force.
¶ 13 "The trial court has a duty to correctly instruct the jury on all matters of law for which there is sufficient evidence to support giving instructions." Cassels v. People, 92 P.3d 951, 955 (Colo. 2004). A trial court should instruct the jury concerning an exception to an asserted affirmative defense if some evidence supports the exception. People v. Zukowski, 260 P.3d 339, 347 (Colo.App. 2010). Whether sufficient evidence supports a jury instruction is a question of law we review de novo. People v. Coughlin, 304 P.3d 575, 587 (Colo.App. 2011). When an instruction was given, we view the evidence in the light most favorable to the giving of the instruction. People v. Silva, 987 P.2d 909, 914 (Colo.App. 1999).
¶ 14 A court may give an initial aggressor instruction "if the evidence will support a reasonable inference that the defendant initiated the physical conflict by using or threatening the imminent use of unlawful physical force." People v. Griffin, 224 P.3d 292, 300 (Colo.App. 2009). The participation in the exchange of insults or verbal argument is insufficient to justify an initial aggressor instruction. People v. Manzanares, 942 P.2d 1235, 1241 (Colo.App. 1996).
¶ 15 The trial court ruled that defendant's racking of the gun (inserting a round into the chamber of the gun by pulling the slide back and releasing it) when Sergeant Lombardi and Officer Simmons approached was the first significant event that occurred between defendant and the two police officers, and that this was sufficient to submit the initial aggressor issue to the jury. We disagree with the court's ruling because defendant's encounter with the police cannot be considered as a separate encounter from that with the handgun shooter.
¶ 16 "In determining whether an initial aggressor instruction is appropriate under the circumstances of a case in which hostilities begin and escalate among a group of people, the conduct of the defendant in the context of the situation must be the focus of any analysis of the defendant's right to self-defense." Silva, 987 P.2d at 915-16. Here, the entire incident, starting from when the handgun shooter fired his first shots until defendant was felled by police, lasted less than a minute and probably considerably less.
¶ 17 Defendant testified that he believed Sergeant Lombardi and Officer Simmons were part of the same group as the handgun shooter and thus he did not know he was shooting at the police. Sergeant Lombardi testified that neither he nor Officer Simmons announced they were police or ordered defendant to drop his gun before they fired their weapons. Officer Simmons testified that he believed Sergeant Lombardi said something but he could not hear what he said. In these circumstances, the police entered an ongoing and uninterrupted fight between defendant and the handgun shooter. Cf. People v. Beasley, 778 P.2d 304, 305-06 (Colo.App. 1989) (concluding that it was error to give an initial aggressor instruction because "initial" means "first" in this context and a fight was already underway between the defendant's associate and the victim when the defendant entered the physical conflict).
¶ 18 Despite our disagreement with the court's ruling, "on appeal, a party may defend the judgment of the trial court on any ground supported by the record, regardless of whether that ground was relied upon or even contemplated by the trial court." People v. Eppens, 979 P.2d 14, 22 (Colo. 1999). The People recognize that most of the witnesses testified that the handgun shooter started firing before defendant left his car. But they argue that there was some evidence that defendant was the initial aggressor because one person in defendant's car testified, at least on direct examination, that she heard gunshots after defendant got out of the car and thus also after he popped open the trunk (although on cross-examination, she stated she heard gunshots when defendant got out of the car). This witness testified that after she heard defendant exchange words with the other man (who may or may not have been the handgun shooter), defendant put the car in park, got out, and started cursing at the other man. She then heard gunshots.
¶ 19 The People also emphasize that another of defendant's companions allegedly told the police during her initial interview that defendant got out of the car after somebody said something to defendant "that got him mad, " a statement which was admitted as an inconsistent statement (and thus substantive evidence pursuant to section 16-10-201, C.R.S. 2014) because the witness testified at trial that she heard shooting before defendant got out of the car.
¶ 20 We acknowledge that it is a very close question whether there was sufficient evidence to support the initial aggressor instruction. However, given the testimony discussed above, the uncertainty about the sequence of events that occurred in a very short period under very stressful circumstances, and the minimal showing that must be made by the prosecution to support an instruction on an exception to self-defense, we cannot hold that the trial court erred in giving the instruction.
¶ 21 We stress that our role is not to determine whether the evidence that supports the instruction also supports a finding beyond a reasonable doubt that defendant was the initial aggressor. Rather, our job is limited to determining whether there was some evidence that supported the instruction. The determination whether defendant was in fact the initial aggressor, and the resolution of conflicting testimony on that issue, was a question of fact for the jury to decide. Coughlin, 304 P.3d at 588.
¶ 22 Accordingly, we conclude that the trial court did not err in giving the initial aggressor instruction to the jury.
B. Provocation Instruction
¶ 23 The trial court also instructed the jury, over defendant's objection, that self-defense is not an affirmative defense if defendant, "with intent to cause bodily injury or death to another person, provoked the use of unlawful physical force by that person." We agree with defendant that this instruction should not have been given because there was no evidence to support it.
¶ 24 "An instruction on provoking the victim . . . should be given if (1) self-defense is an issue in the case; (2) the victim makes an initial attack on the defendant; and (3) the defendant's conduct or words were intended to cause the victim to make such attack and provide a pretext for injuring the victim." Silva, 987 P.2d at 914. Thus, in order for a defendant to forfeit self-defense under the provocation exception, the defendant must act with the intent to provoke the victim into attacking first. See id.
¶ 25 No evidence was presented that defendant's words or actions were intended to provoke the handgun shooter into attacking first in order to provide a pretext for defendant to use physical force. There also was no evidence that defendant intended to provoke the police into shooting at him so that he could shoot back. The trial court therefore should not have given the jury an instruction on the provocation exception to self-defense.
¶ 26 We review a preserved objection to a jury instruction for harmless error. People v. Garcia, 28 P.3d 340, 344 (Colo. 2001); see also Kaufman v. People, 202 P.3d 542, 561 n.21 (Colo. 2009). "Under a harmless error standard, reversal is required if the error affected the substantial rights of the defendant." People v. Gordon, 160 P.3d 284, 288 (Colo.App. 2007). An error thus requires reversal if it "create[d] a reasonable probability that the jury could have been misled in reaching a ...