304 P.3d 575
Colo. Ct. App.2011Background
- The charges arose from a 1 a.m. altercation in a sports bar parking lot on May 4, 2008, where defendant stabbed P.S. during a confrontation after P.S. drove his SUV into the lot entrance.
- Defendant borrowed a knife from a friend and fought P.S.; a bar cook witnessed part of the incident and helped pull P.S. off defendant before they fled.
- The government charged defendant with attempted first-degree murder (later dismissed at trial), attempted second-degree murder, second-degree assault, and fighting in public; the friend pleaded guilty to accessory to attempted murder and testified against defendant.
- At trial, witnesses gave conflicting accounts; the defense argued self-defense with defendant allegedly acting only after P.S. pinned him and punched him.
- The jury convicted defendant of attempted second-degree murder, second-degree assault, and fighting in public; sentences were concurrent with 20 years, 10 years, and 6 months, plus 5 years parole.
- Defendant appealed raising challenges to a juror for cause, alleged improper vouching regarding the plea, errors in credibility instructions, and the no-retreat/self-defense instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Challenge for cause to juror D | D's physical condition could prevent proper service. | Court abused its discretion by denying the for-cause challenge. | No abuse; record supports denial; no reversible error. |
| Improper vouching during friend's plea questioning | Prosecutor's questions improperly bolstered or vouched for credibility. | Questions improperly conveyed special knowledge or credibility. | No reversible vouching; questioning within permissible boundaries; no error. |
| Stock jury instruction on felony convictions | Evidence could be undermined by prior felonies; stock instruction should have been given. | Stock instruction was necessary to limit credibility analysis. | Harmless error; no reasonable probability it affected the conviction. |
| Guilty-plea instruction for codefendant | Limiting instruction should have prevented use of co-defendant's plea for substantive guilt. | Trial court should have sua sponte given a limiting instruction. | Not plain error; no reversal under Montalvo-Lopez and related authority. |
| No-retreat instruction | No-retreat doctrine should be given where retreat is possible and relevant. | Court should have instructed on no-retreat. | No error; record did not raise issue of retreat; no-retreat instruction not required. |
Key Cases Cited
- People v. Pigford, 17 P.3d 172 (Colo.App.2000) (abuse of discretion standard for challenge for cause)
- People v. Cevallos-Acosta, 140 P.3d 116 (Colo.App.2005) (preservation and grounds for challenge for cause must be properly raised)
- People v. Asberry, 172 P.3d 927 (Colo.App.2007) (preservation and grounds for challenges to jurors)
- People v. Garcia, 28 P.3d 340 (Colo.2001) (instructional duties and harmless error standard)
- People v. Montalvo-Lopes, 215 P.3d 1189 (Colo.App.2008) (limiting instruction on codefendant's guilty plea not plain error)
- Cassels v. People, 92 P.3d 951 (Colo.2004) (no-retreat doctrine requires evidence of retreat to warrant instruction)
- People v. Brunner, 797 P.2d 788 (Colo.App.1990) (no-retreat and self-defense instruction considerations)
- People v. Binker, 795 F.2d 1218 (5th Cir.1986) (limits on prosecutorial vouching language)
- United States v. Jones, 468 F.3d 704 (10th Cir.2006) (vouching standards for plea agreements and credibility)
- Racheli v. People, 878 P.2d 46 (Colo.App.1994) (prosecutor may elicit plea terms regarding truthful testimony)