County District Court No. 14CR2503 Honorable John R.
Cynthia H. Coffman, Attorney General, Patrick A. Withers,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Julia
Chamberlin, Deputy State Public Defender, Denver, Colorado,
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.
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. Defendant was charged with second degree
assault, a class 4 felony, and a violent crime sentence
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. 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
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 ...