People v. Monroe, 2018 COA 110

Sheila R. Monroe stabbed James Faulkenberry on a Denver city bus after an 8–10 minute heated exchange; Monroe did not testify and claimed self-defense.
Prosecution emphasized that Monroe had an available path of retreat and repeatedly argued her failure to retreat undermined her claim of fear.
Defense objected that such argument imposed an improper duty to retreat; the trial court overruled objections but told jurors they could consider lack of retreat only for assessing Monroe’s belief that force was imminent.
Prosecutors persisted and ultimately argued unambiguously that a reasonable person would have retreated and that Monroe’s failure to do so showed she was not acting in self-defense.
The jury convicted Monroe of attempted first-degree murder and first-degree assault; she was adjudicated a habitual criminal and sentenced to long prison terms.
The Court of Appeals reversed, holding the prosecution’s arguments effectively imposed a duty to retreat and the trial court’s acquiescence created a reasonable probability the jury convicted without applying the correct self-defense elements.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor’s comments about an available avenue of retreat improperly imposed a duty to retreat and constituted misconduct	Prosecutors argued lack of retreat was probative of Monroe’s belief and reasonableness; they maintained no legal duty to retreat	Monroe argued any argument treating failure to retreat as evidence of unreasonable conduct effectively imposes a duty to retreat and misstates the law	The court held prosecutors’ repeated comments crossed the line, ultimately imposing a de facto duty to retreat and were improper
Whether the error was harmless	People pointed to jury instructions stating there is no duty to retreat and presumed jury followed instructions	Monroe argued the prosecutor’s repeated misstatements and the court’s failure to correct them likely misled the jury and affected the verdict	The court held the error was not harmless given the prosecution’s persistence, the court’s acquiescence, conflicting evidence, and reasonable probability the argument contributed to the conviction

Cassels v. People, 92 P.3d 951 (Colo. 2004) (no-retreat rule: a person entitled to use force need not first retreat)
Toler v. People, 9 P.3d 341 (Colo. 2000) (a defendant need not consider whether a reasonable person would have retreated)
Martinez v. People, 224 P.3d 1026 (Colo. App. 2009) (distinguishable: prosecutor’s retreat argument there addressed instigating a confrontation), aff'd on other grounds, 244 P.3d 135 (Colo. 2010)
Domingo-Gomez v. People, 125 P.3d 1043 (Colo. 2005) (prosecutor must avoid comments that mislead or prejudice the jury)
Strock v. People, 252 P.3d 1148 (Colo. App. 2010) (appellate review of prosecutorial misconduct is for abuse of discretion; review for harmless error when defendant objected)
Anderson v. People, 991 P.2d 319 (Colo. App. 1999) (trial court must correct prosecutor’s misstatement of law or risk permitting jury to adopt incorrect law)
Griego v. People, 19 P.3d 1 (Colo. 2001) (erroneous instruction can prevent jury from deciding actual elements and is not harmless)