2017 COA 27
Colo. Ct. App.2017Background
- Newell and his cousin Eric Albert got into an apartment altercation during which Albert was cut with a straight-edge razor; Newell was charged with second-degree assault and a violent-crime enhancer.
- Three eyewitnesses existed (Newell, girlfriend Chantel McDowell, and Albert); only McDowell and Albert testified. McDowell at times said she saw Albert holding scissors as she entered the living room and later saw Newell holding the razor; Albert gave inconsistent accounts about when and how he was cut and denied having scissors.
- Newell’s defense theory was self-defense: he claimed Albert cut Newell first (with scissors) and then threw a chair, after which Newell slashed Albert. Photographs and officer testimony showed Newell had a cut near his eye.
- The trial court found some evidence for elements of self-defense generally but refused to give a self-defense instruction because it concluded there was “not even a scintilla of evidence” that Newell was not the initial aggressor. Prosecutor argued Newell bore the burden to disprove initial aggression.
- Jury convicted Newell of reduced offense (second-degree assault upon provoked sudden heat of passion), and the court sentenced him to three years. On appeal the Colorado Court of Appeals reversed, holding the trial court erred by requiring direct evidence that Newell was not the initial aggressor before instructing the jury on self-defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by refusing a self-defense instruction | People: No credible evidence Newell was not initial aggressor; defendant must disprove initial aggressor exception | Newell: Any scintilla of evidence of self-defense (including circumstantial) requires instruction; prosecution bears burden to disprove exception | Reversed: Court must give self-defense instruction if any evidence supports it; defendant need not produce direct evidence he was not initial aggressor |
| Burden to obtain self-defense instruction: quantum and source of evidence | People: Defendant must present evidence that he was not initial aggressor | Newell: Statute and case law require only a scintilla of evidence from any source | Held: Only a scintilla of evidence (even circumstantial or from prosecution) is required; judge must instruct and jury decides credibility |
| Whether refusal to instruct violated due process | People: No error because instruction unsupported | Newell: Denial lowered prosecution’s burden and deprived Newell of jury decision on self-defense | Held: Denial violated defendant’s right; error not harmless; reversal required |
| Admissibility of evidence that Newell knew of Albert’s past violent conviction | People: Trial court excluded evidence of Newell’s knowledge as too remote | Newell: Right to confront and show knowledge to support reasonable belief of imminent harm | Held: Issue left unresolved due to reversal; trial court given guidance that remoteness is discretionary on remand |
Key Cases Cited
- People v. Garcia, 113 P.3d 775 (Colo. 2005) (standard for when a jury instruction on an affirmative defense is required)
- Idrogo v. People, 818 P.2d 752 (Colo. 1991) (refusal to instruct on self-defense deprives defendant of jury trial right)
- People v. Saavedra-Rodriguez, 971 P.2d 223 (Colo. 1998) (scintilla-of-evidence standard for affirmative defenses)
- People v. Dillon, 655 P.2d 841 (Colo. 1982) (instruction must be given if any evidence supports defendant’s theory, however improbable)
- People v. Pickering, 276 P.3d 553 (Colo. 2011) (once raised, affirmative defense becomes additional element and prosecution must disprove it beyond a reasonable doubt)