2018 COA 137
Colo. Ct. App.2018Background
- At a bar, defendant Brian Koper was punched twice by Abram; Koper drew a legally carried firearm and aimed it at Abram, then handed the gun to his fiancée and left.
- Prosecutors charged Koper with two counts of felony menacing naming bystanders M.B. (a security guard) and B.B. (a patron) as victims, plus prohibited possession of a firearm while under the influence.
- Koper testified he drew the gun to defend himself from Abram and perceived an ongoing threat; some prosecution witnesses placed the gun as pointed at the named victims or waved about.
- Defense tendered self-defense (defense of person) instructions; trial court refused affirmative self-defense instructions as to the two named victims but allowed a general theory-of-the-case statement describing Koper’s claim he used the gun to hold his assailant at bay.
- During cross-examination the prosecutor repeatedly asked Koper to opine on whether prosecution witnesses were lying or mistaken; defense did not object at trial.
- The jury convicted on all counts. On appeal the court reversed the two felony menacing convictions for erroneous denial of transferred-intent self-defense instructions and reversed the firearms-possession conviction for prosecutorial misconduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant was entitled to a self-defense instruction as to the named bystander victims (transferred-intent self-defense) | The People argued Koper didn’t act in self-defense as to M.B. or B.B. because he acted against Abram, who was not charged. | Koper argued his intent to defend against Abram could transfer to bystanders who were incidentally affected, so he was entitled to a self-defense instruction on the menacing counts. | Court held transferred-intent self-defense is available; credible evidence supported giving self-defense instructions as to both menacing victims, and denial was not harmless — menacing convictions reversed. |
| Whether prosecutor’s repeated "were they lying" questions required reversal of the firearms-possession conviction | The People argued the questions highlighted conflicts and did not ask Koper to opine on veracity. | Koper argued the cross-examination repeatedly invited him to comment on other witnesses’ credibility, which is categorically improper. | Court held the cross-examination was improper, the error was plain and substantial under Liggett, and reversal of the prohibited-possession conviction was required. |
| Whether the trial court erred in giving or refusing a BAC-presumption instruction (and related expert testimony) | The People implicitly argued the driving-related BAC presumption was inapplicable absent blood/breath analysis. | Koper sought an instruction and expert testimony tying his estimated BAC (< .05) to statutory presumptions/inferences under the DWI statute. | Court held the DWI statutory presumptions depend on blood/breath analysis and do not apply to the firearms statute; rejecting the instruction and limiting the expert was not error. |
| Whether cumulative error required reversal | The People argued no reversible cumulative error. | Koper argued errors cumulatively deprived him of a fair trial. | Court did not reach cumulative-error argument because it reversed on other grounds and remanded for new trial. |
Key Cases Cited
- People v. Pickering, 276 P.3d 553 (Colo. 2011) (trial court must instruct on self-defense if credible evidence supports it; prosecution then must disprove self-defense beyond a reasonable doubt)
- People v. Liggett, 135 P.3d 725 (Colo. 2006) (broad prohibition on asking witnesses to comment on the veracity of other witnesses)
- People v. Speer, 255 P.3d 1115 (Colo. App. 2011) (court must instruct on requested affirmative defenses when any credible evidence supports them)
- People v. Garcia, 28 P.3d 340 (Colo. 2001) (harmless-error standard for preserved instructional error)
- Holloman v. State, 51 P.3d 214 (Wyo. 2002) (recognizing transferred-intent self-defense doctrine and collecting authority)
- Henwood v. People, 129 P. 1010 (Colo. 1913) (dicta approving self-defense instruction where defendant unintentionally shot a bystander while defending against a third person)