and County of Denver District Court No. 11CR4258 Honorable
John W. Madden IV, Judge
Cynthia H. Coffman, Attorney General, Matthew S. Holman,
First Assistant Attorney General, Denver, Colorado, for
A. Ring, Colorado State Public Defender, Anne T. Amicarella,
Deputy State Public Defender, Denver, Colorado, for
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.
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
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 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.
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.
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 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
• "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 ...