2021 COA 12
Colo. Ct. App.2021Background
- Defendant Philo Roberts-Bicking and roommates Terry and Ricardo Thurmond disputed rent, possession of a key, and defendant keeping a gun in a converted bedroom area with no door.
- Early on the morning at issue Terry entered defendant’s sleeping area demanding the key; Ricardo joined shortly after.
- The brothers testified they were not threatening; defendant displayed a pistol, said “you motherfuckers will die,” and shot Ricardo six times, then struck and choked Terry.
- Defendant gave a police statement saying the brothers had previously threatened him, one had an object that morning, and he fired when they moved toward him.
- Jury acquitted on attempted first‑degree murder but convicted defendant of attempted second‑degree murder, first‑degree assault (Ricardo), and menacing (Terry).
- On appeal defendant challenged multiple jury instructions about self‑defense: (1) failure to give multiple‑assailant/apparent‑necessity instructions; (2) giving initial‑aggressor and provocation instructions; and (3) failure to require jury unanimity on which self‑defense exception applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by not giving specific multiple‑assailant or apparent‑necessity instructions | Stock instruction plus supplemental clarification required jurors to apply an objective, totality‑of‑circumstances standard | Requested specific multiple‑assailant and apparent‑necessity instructions were necessary | Supplemental instruction given during deliberations cured any deficiency; no reversible error |
| Whether giving an initial‑aggressor instruction was proper | Some evidence (defendant sitting up, producing a gun, threatening words) supported instructing on initial aggressor | Instruction inappropriate because defendant’s conduct might be the charged act itself | Sufficient evidence supported the initial‑aggressor instruction; court did not err |
| Whether giving a provocation instruction was proper | Defendant’s words (“If you want to fuck with me, try it”) could reasonably be found to intend to provoke an attack | Provocation instruction should not have been given alongside initial‑aggressor instruction | Provocation instruction was warranted because the statement was reasonably susceptible to being found provocative |
| Whether jury unanimity is required on which self‑defense exception (initial‑aggressor vs provocation) was proven | Exceptions are not mutually exclusive after Galvan; jury need not unanimously pick one theory to satisfy the element | Jury must be instructed that it must unanimously agree on which exception applies | Court held exceptions can overlap and jurors need not unanimously agree on a single exception; unanimity instruction not required |
Key Cases Cited
- People v. Jones, 675 P.2d 9 (Colo. 1984) (jury must consider number of persons reasonably appearing to threaten accused unless totality instruction suffices)
- Riley v. People, 266 P.3d 1089 (Colo. 2011) (clarifies Jones: instruction directing jury to consider a reasonable person under similar conditions satisfies multiple‑assailant concern)
- Beckett v. People, 800 P.2d 74 (Colo. 1990) (apparent necessity instruction unnecessary when statutory ‘‘reasonably believed’’ language covers the concept)
- People v. Griffin, 224 P.3d 292 (Colo. App. 2009) (producing a gun during an argument can support an initial‑aggressor instruction)
- People v. Manzanares, 942 P.2d 1235 (Colo. App. 1996) (discusses limits on using the defendant’s conduct as the basis for certain self‑defense instructions)
- People v. Silva, 987 P.2d 909 (Colo. App. 1999) (sets out elements of the provocation exception to self‑defense)
- Schad v. Arizona, 501 U.S. 624 (1991) (plurality: jury unanimity not required as to alternative theories or means of satisfying an element)