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People v. Newell

Court of Appeals of Colorado, Seventh Division

March 9, 2017

The People of the State of Colorado, Plaintiff-Appellee,
John Robert Newell, Defendant-Appellant.

         Arapahoe County District Court No. 14CR2503 Honorable John R. Lowenbach, Judge

          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 ...

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