Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 10CA1477
Attorneys for Petitioner: Douglas K. Wilson, Public Defender
Ned R. Jaeckle, Deputy Public Defender Denver, Colorado
Attorneys for Respondent: Cynthia H. Coffman, Attorney
General Brock J. Swanson, Assistant Attorney General Denver,
Petitioner Andres Castillo admits that he fired a shotgun at
several people, including two police officers, in a crowded
parking lot after a night out celebrating his wife's
birthday in downtown Denver. But he claims he acted in
self-defense. Driving a car occupied by his wife and several
friends, Castillo tried to exit a parking lot, when an
unknown assailant opened fire on his car. At some point
during this episode, Castillo got out of the car, retrieved a
shotgun from his trunk, and returned fire. Nearby police
officers then rushed to the scene and began firing at
Castillo from a different direction. He turned and shot back.
Castillo testified that he didn't realize his targets
were police officers; he claimed that he thought they were
associated with the initial shooter.
Charged with multiple counts of attempted first degree murder
and first and second degree assault, Castillo asserted
self-defense at trial. The trial court instructed the jury on
self-defense but, over Castillo's objection, also
instructed the jury on two exceptions to self-defense:
initial aggressor and provocation. The jury found Castillo
guilty of several offenses.
As relevant here, a division of the court of appeals found
that (1) the trial court did not err in giving the initial
aggressor jury instruction, and (2) while the trial court did
err in giving the provocation jury instruction, the error was
harmless. We granted certiorari to address whether the
division erred in reaching these conclusions.
We conclude that the trial court erred in giving the initial
aggressor jury instruction because there was no evidence to
support the instruction. We further conclude that the error
was not harmless. We do not reach the issue of whether giving
the provocation jury instruction was harmless error because
Castillo is entitled to a new trial regardless, and the trial
court can avoid the error on retrial.
Therefore, we reverse the judgment of the court of appeals
and remand for further proceedings consistent with this
Facts and Procedural History
One Saturday night, Castillo visited a nightclub in downtown
Denver with his wife, his cousin, and two friends to
celebrate his wife's birthday. They stayed until the club
Closing time in downtown Denver often unleashes a flood of
people into the streets. The Denver Police Department calls
the resulting sea of humanity "outcrowds." Because
fights and other disturbances are common, police are
typically present and vigilant.
This night proved to be no exception. As Castillo and his
group left the club, they walked through an alley lining the
parking lot where Castillo's car was parked. In the
alley, they passed a group of men who appeared to be fighting
or about to fight. Castillo's group did not get involved.
Instead, they kept walking to Castillo's car.
Denver Police Sergeant Lombardi monitored the outcrowds that
night. He saw a group of twenty to thirty people either
fighting or about to fight. When he called for backup,
several officers joined him. Among them was Officer Simmons,
who trained his spotlight on the skirmish, causing the
would-be combatants to disperse.
Meanwhile, Castillo's group reached Castillo's car.
Castillo hopped into the driver's seat, rolled down his
window, and started backing out of his parking spot. A
man-who was never identified-said something to Castillo
through the open driver's door window. Castillo said
something in return. Castillo testified that he couldn't
remember what he said. When asked if he threatened the man,
Castillo responded that he did not.
What happened next is less clear. Partially conflicting
testimony at trial described two possible sequences.
According to most witnesses, including Castillo, Castillo
backed his car out of the parking spot and started moving the
car toward 18th Street to leave the parking lot. There were
cars in front of him, so he drove slowly. Someone then
started firing at Castillo's car from the direction of
19th Street, hitting Castillo's car. Castillo popped the
trunk, got out of his car, walked to the rear of his car,
removed a shotgun from the trunk, and fired several rounds
toward the area where the shots originated.
On the other hand, Jennifer Strong (who was in the back seat
of the car at the time) testified on direct examination by
the People that Castillo cursed at the man who said something
to Castillo as the man walked by. According to Strong's
testimony on direct, after the verbal exchange with the man,
Castillo stopped the car, popped open his trunk, and got out
of the car. Only then did someone start firing at
Castillo's car. Castillo walked to the rear of his car,
removed a shotgun from the trunk, and then fired several
rounds in the apparent direction of the initial shooter.
Under either version, however, Castillo opened the trunk
before getting out of his car, and the gunshots started
before Castillo got to his trunk. The initial shooter was
never identified, and it is unknown if the initial shooter
was the man who said something to Castillo through the car
Sergeant Lombardi-working as a supervisor for the lower
downtown area that evening-heard shots and moved toward the
action. Sergeant Lombardi testified he came around a parked
car to the right of Castillo, when he saw Castillo, then on
foot, backing up, racking a shotgun (inserting a round into
the chamber of the gun by pulling the pump handle back and
pushing it forward), and aiming toward 19th Street. Sergeant
Lombardi described seeing Castillo with another male,
Castillo's cousin: "They both have their focus
attention in [sic] where the shotgun's pointing, and
they're both looking to where that fight and that
altercation was, northbound towards 19th Street."
Sergeant Lombardi stated, "I was fearing that he was
trying to kill somebody, and out of defense of those people I
fired one to two rounds at the suspect."
The defense called Sergeant Lombardi as a witness and
discussed the order of events in this hectic scene. Sergeant
Lombardi testified that he was the first officer to reach the
spot from which he and Officer Simmons would eventually
shoot. Defense counsel asked Sergeant Lombardi, "[Y]ou
fired two rapid shots at Mr. Castillo before he fired at
you?" Sergeant Lombardi responded, "Yes."
Sergeant Lombardi said he was the first officer to shoot at
Castillo and that after he shot at Castillo, Castillo turned,
racked his gun, and shot back.
Castillo testified at trial that while he was firing toward
19th Street, he heard a bang and saw a muzzle flash to his
right that looked similar to the other muzzle blasts he had
seen coming from the initial shooter. Castillo testified he
didn't see anyone, didn't hear anyone say anything,
and thought the blast must have come from other people
associated with the initial shooter.
Sergeant Lombardi testified that Officer Simmons arrived at
the scene at some point after him. Officer Simmons testified
he had been following Sergeant Lombardi, ten to twelve feet
behind him. He arrived at Sergeant Lombardi's location
and he stepped even with Sergeant Lombardi and saw Castillo
holding the shotgun. Then, in Officer Simmons's words,
"As he turned and faced us, that's when the first
round was fired in our direction." After Officer Simmons
felt something near his head and "felt something across
[his] stomach like something had grazed [him]," he fired
at Castillo. Officer Simmons testified that he believed that
he fired around the same time as Sergeant Lombardi, but could
not tell how many times Sergeant Lombardi shot.
Castillo was hit by police fire. Castillo then handed his gun
to his cousin. Police shot and killed the cousin.
The officers were dressed in uniform, which consisted of a
dark blue shirt with a badge, dark blue pants, and no
reflective vest. Officer Simmons and Sergeant Lombardi
testified that they did not give any commands or identify
themselves as police. However, several witnesses testified
they could tell the two were police officers. The parking lot
was lighted, but how visible the police should have been to
Castillo under the circumstances was disputed at trial.
By all accounts, the foregoing events occurred in a matter of
seconds. Sergeant Lombardi testified it was approximately
eleven seconds from the time he heard the first shots until
he began shooting. Officer Simmons estimated the total event,
from the sound of the first shots until the cousin fell to
the ground, lasted ten to twenty seconds.
The prosecution charged Castillo with two counts of attempted
first degree murder (as to Officer Simmons and Sergeant
Lombardi), two counts of first degree assault on a peace
officer (also as to Officer Simmons and Sergeant Lombardi),
and five counts of second degree assault (as to bystanders
present in the parking lot).
At trial, Castillo admitted that he shot at the police
officers, but testified that he did not know they were police
officers; he believed the people who turned out to be police
were with the unidentified initial shooter.
Castillo's sole defense at trial was self-defense.
The trial court instructed the jury on self-defense; over
defense counsel's objection, the court also instructed
the jury regarding the provocation and initial aggressor
exceptions to self-defense. The instructions read as follows:
(1) It is an affirmative defense to the crimes of Criminal
Attempt to Commit Murder in the First Degree, Criminal
Attempt to Commit Murder in the Second Degree, Assault in the
First Degree, and Assault in the Second Degree that the
defendant used physical force upon another person:
(A) in order to defend himself or a third person from what he
reasonably believed to be the use or imminent use of unlawful
physical force, and
(B) he used a degree of force which he reasonably believed to
be necessary for that purpose.
Defendant was not required to retreat in order to claim the
right to employ force in his own defense.
(2) It is not an affirmative defense that the defendant used
physical force upon another person as set out in paragraph
(1) of this Instruction if the defendant was the initial
(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.
(3) It is not an affirmative defense that the defendant used
physical force upon another person as set out in paragraph
(1) of this instruction if the defendant, with intent to
cause bodily injury or death to another person, ...