     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                               August 9, 2018

                               2018COA110

No. 13CA1604 People v. Monroe — Criminal Law — Affirmative
Defenses — Self-Defense — Use of Physical Force in Defense of
a Person

     A division of the court of appeals considers whether a

prosecutor’s discussion of the availability of an avenue of retreat

impermissibly suggests a duty to retreat before acting in self-

defense. The division concludes that the prosecutors’ comments in

this case functioned to impose a duty to retreat and were therefore

improper. The division further concludes that the prosecutors’

repeated misstatement of the law, ultimately acquiesced to by the

trial court, created a reasonable probability that the jury would

convict the defendant without considering the actual elements of

the affirmative defense of self-defense.

     Accordingly, the division reverses and remands for a new trial.
COLORADO COURT OF APPEALS                                      2018COA110


Court of Appeals No. 13CA1604
City and County of Denver District Court No. 11CR4258
Honorable John W. Madden IV, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sheila R. Monroe,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division II
                           Opinion by JUDGE TOW
                         Dailey and Dunn, JJ., concur

                          Announced August 9, 2018


Cynthia H. Coffman, Attorney General, Matthew S. Holman, First Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Anne T. Amicarella, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶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.

                           I.   Background

¶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 in self-defense.

¶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


                                   1
 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.

                              II.   Analysis

¶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.

                   A.    The Prosecutors’ Arguments

¶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


                                     2
 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

 following statements:




                                    3
           “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 direct line to go

               away.”

           “She knows [running away is] the appropriate thing to

               do. She doesn’t do that, ladies and gentlemen, because

               she’s not acting in self-defense.”

  The judge once again overruled the defense’s objections and

  permitted the argument.

                           B.   Standard of Review

¶ 10   Whether a prosecutor’s statements during closing arguments

  rise to the level of misconduct is generally left to the discretion of

  the trial court. Domingo-Gomez v. People, 125 P.3d 1043, 1049

  (Colo. 2005). “Any improper argument by either counsel must be

  dealt with promptly by the trial court.” Id. The prosecutor must

  “scrupulously avoid comments that could mislead or prejudice the

  jury.” Id.

¶ 11   We will not disturb a trial court’s rulings regarding

  prosecutorial misconduct absent an abuse of discretion. People v.

  Strock, 252 P.3d 1148, 1152 (Colo. App. 2010). When the


                                       4
  defendant has objected, we review for harmless error, and thus will

  only reverse if there is a reasonable probability that the error

  contributed to the defendant’s conviction. Id.

                C.    The Availability of a Path of Retreat

¶ 12   Under Colorado’s self-defense statute, a person may use

  physical force against another “in order to defend himself or a third

  person from what he reasonably believes to be the use or imminent

  use of unlawful physical force by that other person, and he may use

  a degree of force which he reasonably believes to be necessary for

  that purpose.” § 18-1-704(1), C.R.S. 2017. A person who

  reasonably perceives an imminent use of unlawful physical force is

  entitled to use force in defending himself or herself “without first

  retreating, or seeking safety by means of escape.” Cassels v. People,

  92 P.3d 951, 956 (Colo. 2004). Such a person “does not have to

  consider whether a reasonable person in the situation would opt to

  retreat to safety rather than resorting to physical force to defend

  against unlawful force.” People v. Toler, 9 P.3d 341, 347 (Colo.

  2000).

¶ 13   In this case, the prosecution raised the issue of the availability

  of retreat five separate times during its closing and rebuttal


                                     5
  arguments. The first three times were at least arguably subject to

  conflicting interpretations: that if Monroe believed force was going

  to be used against her, she should have retreated instead of

  resorting to force; or that Monroe not taking advantage of an

  available avenue of retreat suggests that she did not, in fact, believe

  force was going to be used against her. The first would clearly be

  improper, as it would seek to impose a duty to retreat.

¶ 14   The second argument may or may not have been proper.

  Monroe argues that it is categorically improper. Essentially, she

  argues that permitting a jury to consider the lack of retreat when

  assessing a defendant’s belief that the use of force by another is

  imminent would in effect impose a duty to retreat, because the only

  way a defendant could convince someone that he or she had such a

  belief would be to do something (retreat) he or she has no obligation

  to do. The People, citing People v. Martinez, 224 P.3d 1026 (Colo.

  App. 2009), aff’d on other grounds, 244 P.3d 135 (Colo. 2010),

  counter that evidence of lack of retreat is germane to a defendant’s

  reasonable belief of the need for self-defense. Martinez, however, is

  inapposite.




                                     6
¶ 15   In Martinez, the defendant and a codefendant were charged

  with assault after beating a man outside of a bar. At trial, the

  defendant asserted self-defense. The evidence showed that the

  defendant was driving away when the victim walked out of the bar.

  Id. at 1029-30. The defendant turned around, got out of his car,

  and approached the victim. Id. Though the evidence regarding how

  the ensuing altercation began was conflicting, the victim ultimately

  suffered a broken orbital bone and jaw bone, and had several teeth

  knocked out. Id. The defendant claimed at trial that he acted in

  self-defense because he was “scared and . . . nervous” about the

  victim, and that the victim “had a black belt.” Id. at 1033.

¶ 16   During closing, the prosecutor told the jury that the defendant

  had “made a U-turn and drove around for the confrontation.” Id. at

  1031. The prosecutor continued, stating the defendant and co-

  defendant “could have left. They had the perfect opportunity if

  [defendant] was so scared and he was very nervous about this.” Id.

¶ 17   In context, the prosecutor’s argument was not about whether

  the defendant should have retreated from an ongoing confrontation,

  but rather whether the defendant should have instigated the

  confrontation in the first place. In fact, in overruling the


                                     7
  defendant’s objection, the court noted, “we have some testimony

  that [defendant] was the initial aggressor.” Id. We therefore do not

  agree that Martinez supports pointing to an unused avenue of

  retreat as evidence of a defendant’s lack of belief in the need for

  force.

¶ 18   There is undeniable appeal to Monroe’s call for a categorical

  prohibition against permitting the jury to consider whether there

  was an available avenue of retreat when assessing a defendant’s

  belief in the need for the use of defensive force. First, since the

  common responses to a threat are “fight, flight, or freeze,” it is far

  from clear what, if anything, a person’s lack of flight from a threat

  says about whether that threat was actually and reasonably

  perceived; the fact that the response was to fight instead of to flee

  may well be equally probative of the perception that a threat was

  imminent. Moreover, the line between the use of this evidence to

  judge one’s perception and the use of this evidence to judge one’s

  response to that perception is so fine as to be almost imperceptible.

  We have significant concern that any use of the evidence of an

  unused avenue of retreat would unavoidably misdirect a jury into




                                     8
  considering the reasonableness of a defendant’s response to a

  threat rather than the perception of the threat in the first place.

¶ 19   Indeed, here, the prosecutors themselves struggled with, and

  ultimately failed to maintain, the distinction in their own

  arguments. That being said, because we conclude that the

  prosecution’s argument here inappropriately imposed a duty to

  retreat, we leave for another day the issue of whether it would ever

  be proper to attack the veracity of a defendant’s claimed belief in

  the need for defensive force by highlighting an unused avenue of

  retreat. We will thus refer to the use of this argument as “arguably

  proper.”

                D.    The Imposition of a Duty to Retreat

¶ 20   In the prosecutor’s first reference to the unused avenue of

  retreat, he noted that “she does have a clear line of retreat, if she’s

  actually scared for her safety.” The jury could have heard that as “a

  scared person should retreat instead of using force” — a patently

  improper argument. Defense counsel apparently heard it that way,

  as he raised an objection that the prosecutor was asserting a duty

  to retreat. The court disagreed and overruled the objection but,

  apparently recognizing this ambiguity, attempted to clarify for the


                                     9
  jury that it would be permitted to consider the lack of retreat as

  evidence that defendant did not actually believe there was an

  imminent use of force, but not for the improper purpose of

  considering whether her actions in not retreating were reasonable.

¶ 21   Despite the court’s guidance, the prosecutor immediately

  restated the argument in equally ambiguous terms, arguing that

  she “could have backed away, if she wanted to, if she was actually

  afraid.”1 Again, this language may be directed at her perception

  and belief, or improperly directed at the reasonableness of her

  conduct in not retreating.

¶ 22   Significantly, even after the court’s attempt to articulate the

  parameters of the argument it would permit regarding the

  availability of retreat, the prosecution did not alter course. Indeed,

  on rebuttal closing, the arguments moved further outside those

  parameters, ultimately abandoning any effort to tie the evidence to



  1 Each time, the prosecutor prefaced his argument with an
  acknowledgment that Monroe had no duty to retreat. This
  statement alone, however, did not eliminate the ambiguity in the
  argument. See People v. Castillo, 2014 COA 140M, ¶¶ 72-74 (noting
  that similar comments, including the reiteration of the no duty to
  retreat rule, were subject to multiple interpretations), rev’d on other
  grounds, 2018 CO 62.

                                    10
  Monroe at all, let alone to her perception or belief. First, the

  prosecutor asserted that “[w]hen you do not remove yourself from a

  situation when you easily can, that contradicts that you were in

  fear of being hurt.” As with the assertions during the first closing

  argument, this statement could merely be an argument that

  Monroe’s actions would not support a finding that she actually

  believed the use of force was imminent; but it is at least as likely to

  be an argument that any person who does not take advantage of a

  path of retreat by definition does not believe force will be used

  against her. The latter would be clearly improper, as it would

  impose a de facto duty to retreat.

¶ 23   Monroe again objected, and the court did not sustain the

  objection, but reiterated what use of this evidence it would permit.

  Yet, the prosecution’s argument went from ambiguous to clearly

  improper. Specifically, the prosecutor argued that “a reasonable

  person would move from [the danger].” This is unequivocally an

  argument that Monroe had a duty to retreat.

¶ 24   At this point, the court should have sustained Monroe’s

  objection and instructed the jury to disregard the argument.

  Instead, the court overruled the objection and explicitly treated this


                                     11
  objection (and, implicitly, the ruling on the objection) as exactly the

  same as the previous objections and rulings. The prosecutor then

  continued down this misleading path, arguing that retreating was

  “the appropriate thing to do.” Again, the court overruled Monroe’s

  objection and permitted the prosecutor to pursue this line of

  argument.

¶ 25   When a prosecutor misstates the law and, upon objection, the

  court “declines to direct the jury that the prosecutor’s version of the

  instruction is incorrect, the court improperly permits the jury to

  adopt the prosecutor’s version of the law.” People v. Anderson, 991

  P.2d 319, 321 (Colo. App. 1999). In its initial rulings, the court

  here attempted to redirect the jury toward an arguably proper use

  of the evidence. However, the last two statements by the

  prosecution unambiguously and improperly focused entirely on the

  reasonableness of Monroe’s conduct, rather than on her belief or

  what her conduct demonstrated about her belief, and thus

  effectively imposed a duty to retreat. More importantly, the trial

  court did not remedy these improper statements. In essence, the

  trial court permitted the jury to believe that it could consider

  whether a reasonable person would have retreated, in direct


                                    12
  contravention of the instruction that no such duty exists. In so

  doing, the trial court abused its discretion.

                            E.    Harmlessness

¶ 26   Having found error, we turn to whether that error was

  harmless. In so doing, we recognize that the court (and, for that

  matter, the prosecutors themselves) repeatedly stated that Monroe

  had no duty to retreat. We also acknowledge that the jury was

  formally instructed regarding the duty to retreat.2 Finally, we do

  not discount the long-established premise that we presume that the

  jury follows the instructions it is given.

¶ 27   Nevertheless, on the unique facts of this case, we find that

  there is a reasonable probability that the jury was misled, and that

  the misleading arguments contributed to the verdict.




  2 We note that the actual form of the written jury instruction
  contains a typographical error, in that it placed the “no duty to
  retreat” language within the second subparagraph of the first
  paragraph, instead of standing alone. Monroe asserts that this
  placement had the effect of misleading the jury into considering the
  “no duty to retreat” as germane only to the second of the two
  elements of the defense. Because the specific format of the
  instruction does not contribute to our ruling, and in light of our
  resolution of the prosecutorial misconduct claim, we do not address
  Monroe’s assertion of error in this regard.

                                     13
¶ 28   When boiled down to its essence, the progression transpired

  as follows: three times, the prosecution made an argument that

  could have been interpreted as either improper or arguably proper.

  The trial court told the jury to consider the statement to be

  advancing the arguably proper argument. Thereafter, the

  prosecution unambiguously advanced the improper argument. The

  court again overruled the objection and permitted the argument,

  and in so doing explicitly accepted the improper argument as the

  equivalent of the arguably proper one. Finally, the prosecution

  again made the improper argument, and the court simply overruled

  the objection with no effort to distinguish the two arguments. The

  result of this progression is that, ultimately, the court placed its

  stamp of approval on the improper argument (i.e., that “a

  reasonable person would have retreated,” and that retreat was “the

  appropriate thing to do”).

¶ 29   By permitting the prosecutors to argue that Monroe had a

  duty to retreat, the court “permit[ted] the jury to adopt the

  prosecutor’s version of the law.” Anderson, 991 P.2d at 321. When

  the court finally acquiesced to the prosecution’s assertion that a

  reasonable person would retreat, it directly contradicted its


                                     14
  instruction that Monroe had no duty to retreat. A reasonable jury

  would be left with the erroneous understanding that while it would

  not be permitted to impose an obligation or duty to retreat, it could

  find that a reasonable person would have done so. Because of this

  confusion, we cannot presume the jury correctly applied the

  instruction it was given.

¶ 30   The creation of such confusion is no different than having not

  instructed the jury at all, and carries the same risks. See Cassels,

  92 P.3d at 956 (Failure to properly instruct the jury on the doctrine

  of no-retreat “creates a risk that the jury will not acquit the

  defendant because it will consider the defendant’s use of force

  unreasonable in light of the possibility of retreat.”). Further,

  following an “erroneous instruction precludes the jury from making

  a finding on the actual element of the offense.” Griego v. People, 19

  P.3d 1, 8 (Colo. 2001) (quoting Neder v. United States, 527 U.S. 1,

  10 (1999)).3



  3 While Griego addressed an affirmatively incorrect jury instruction,
  the underlying rationale of the decision is nonetheless applicable in
  this context, particularly in light of the mandate in Anderson. Since
  the jury was permitted to be misled as to the impact of Monroe’s
  failure to retreat, it cannot be said with any confidence that the jury

                                     15
¶ 31   Nor was the evidence of guilt in this matter overwhelming. We

  note that, while the presentation of evidence lasted approximately

  two days, the jury deliberated for almost as long. The evidence of

  who was the initial aggressor and whether Faulkenberry posed a

  threat when he reached into his pocket was in conflict.

¶ 32   The prosecutor encouraged the jury to reject Monroe’s claim of

  self-defense solely because she failed to retreat. The trial court

  allowed that argument to be made. In light of the irreconcilable

  conflict between permitting the prosecution to argue that Monroe’s

  lack of retreat was unreasonable and the instruction that she had

  no duty to retreat, we conclude that it was reasonably probable that

  the error contributed to the conviction.

¶ 33   Accordingly, the error was not harmless.

                    III.   Monroe’s Other Contentions

¶ 34   In light of our resolution of this issue, and because we cannot

  say whether Monroe’s other assertions of error are likely to occur

  upon retrial, we need not address them.




  properly evaluated the required element that the prosecution
  disprove the affirmative defense of self-defense.

                                    16
                              IV.   Conclusion

¶ 35       The judgment is reversed, and the case is remanded for a new

  trial.

           JUDGE DAILEY and JUDGE DUNN concur.




                                     17
