v. Galvan , 2019 COA 68 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 9, 2019
2019COA68
No. 16CA1988, People v. Galvan — Constitutional Law — First
Amendment — Freedom of Speech — Fighting Words; Criminal
Law — Jury Instructions — Defenses — Use of Non-Deadly
Physical Force (Defense of Person) — Provocation Exception
The division holds that a defendant’s taunts at the alleged
victims were fighting words and, thus, were not protected by the
First Amendment. Those words, therefore, could be considered in
determining whether there was some evidence that the defendant
provoked the victims, thereby authorizing the giving of a
provocation instruction.
The division also concludes that a prosecutor may not imply to
a jury venire that the alleged victims have rights that are equal to,
or in conflict with, the rights of the criminal defendant.
COLORADO COURT OF APPEALS 2019COA68
Court of Appeals No. 16CA1988
Weld County District Court No. 15CR554
Honorable Marcelo A. Kopcow, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jose Luis Galvan, Sr.,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE BERGER
Taubman and Tow, JJ., concur
Announced May 9, 2019
Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney
General, Colleen Wort, Assistant Attorney General Fellow, Denver, Colorado, for
Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Meredith E. Osborne, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury convicted Jose Luis Galvan, Sr., of second degree
assault. Galvan appeals, contending that the trial court erred in (1)
instructing the jury on the provocation exception to self-defense; (2)
not giving a self-defense instruction for each alleged victim; (3)
failing to give a separate no duty to retreat instruction; and (4)
permitting the prosecutor to suggest to the jury during voir dire
that the alleged victims had rights to a fair trial that were equal to
that of Galvan’s. Because no reversible error infected the judgment,
we affirm.
I. Relevant Facts and Procedural History
¶2 One night, Galvan and his sister took a “party bus” from
Greeley to Denver. There were numerous other people on the bus,
including S.M. and her sister, C.M. (the alleged victims). Everyone
in the group was drinking heavily, with the exception of Galvan’s
sister.
¶3 While in Denver, the group visited three or four bars and
continued to drink heavily. By the time the group returned to the
bus to head back to Greeley, everyone was highly intoxicated
(except Galvan’s sister). On the way back to Greeley, Galvan and
1
S.M. began to argue — though the reason the argument began was
disputed.
¶4 S.M. testified that she saw Galvan throwing pieces of food at
another partygoer who was asleep on the bus. S.M. told Galvan to
stop, but he persisted. S.M. then told Galvan to “knock the fuck
off,” to which he responded, “What are you going to do about it
bitch?” The two continued shouting at each other, and Galvan
stood up and again said, “What the fuck are you going to do about
it bitch?” He then took a step toward S.M., and both she and C.M.
stood up in response. At that point, the bus driver intervened and
told the group that if they did not stop arguing, they would be
walking home to Greeley. They temporarily stopped.
¶5 Galvan’s sister’s testimony painted a very different version of
these initial events. Galvan’s sister testified that throughout the
evening, C.M. had been making sexual comments to her, making
her uncomfortable. At one of the bars in Denver, C.M. asked the
sister to dance. When the sister said no, C.M. told her she needed
a “shot” to loosen up and relax a little bit. The sister declined the
drink. When C.M. asked the sister to dance again sometime later,
2
the sister agreed. But, while on the dance floor, C.M. touched the
sister and made her uncomfortable. The sister told Galvan that she
wanted to leave. She and Galvan called some friends to see if
anyone was in Denver who could give them a ride back to Greeley.
No one answered. So, when the group boarded the bus to head
back to Greeley, Galvan and his sister were on the bus.
¶6 Again, according to the sister, C.M. sat next to her and
continued to make sexual comments to her. At one point, C.M.
touched the sister’s breast. Galvan slapped C.M.’s hand away and
pushed her to the side. According to the sister, that is when the
situation escalated. C.M. and S.M. started yelling at Galvan and
telling him that his sister could make her own decisions. At that
point, Galvan stood up and began yelling at S.M. and C.M. S.M.
and C.M. responded in kind.
¶7 Sometime later, Galvan’s sister noticed a different partygoer
throwing pieces of food at the sleeping partygoer. When one piece
of food landed on Galvan, he flicked it off himself, and it landed on
the sleeping woman. S.M. and C.M. saw the food hit the sleeping
woman and reinitiated the argument. C.M. then grabbed Galvan by
3
the shirt and said, “Listen, I’m not scared of you. We can fight if
you want. You know, I’ll fight with you. I don’t care.” At that
point, the bus driver intervened, and the fighting again stopped
temporarily.
¶8 After returning to Greeley, the group exited the bus, but the
altercation among Galvan, S.M., and C.M. continued. S.M. testified
that they continued shouting at each other, and Galvan shouted at
S.M. and C.M. that they “were going to get it” and should “watch
[their] backs.” S.M. and C.M. started walking down the street to
their aunt’s house.
¶9 According to S.M., as they walked, Galvan drove slowly by
them shouting “[i]f any of you want this, well, come and get it.”
Then, Galvan stopped his truck, got out, and started running
toward C.M. with his fist cocked, as if ready to punch. Galvan then
punched C.M. in her face, breaking her nose and causing her to
fall. During her fall, C.M. broke her ankle. S.M. then went after
Galvan and the two physically fought.
¶ 10 Galvan’s sister testified differently. As she and Galvan drove
away from the bus, she heard something hit the truck. She
4
believed that C.M. had hit the truck with a bottle, so Galvan
stopped the truck, and the sister got out to see if there was any
damage. While she was checking the truck, S.M. and C.M. came up
behind her and S.M. shoved her. The sister saw C.M. over her
shoulder and then saw a fist. The next thing she knew, C.M. was
on the ground, bleeding from her face. Then S.M. and Galvan
fought. Finally, Galvan and his sister left the scene.
¶ 11 After a police investigation, Galvan was charged with second
degree assault against C.M.; and menacing, criminal attempt to
commit assault in the second degree, and assault in the third
degree against S.M. The jury acquitted Galvan of all charges
against S.M., but convicted him of second degree assault against
C.M.
II. The Court Did Not Err in Instructing the Jury on Self-Defense
or the Duty to Retreat
¶ 12 At Galvan’s request, the trial court instructed the jury on the
affirmative defense of self-defense using the Colorado Model
Criminal Jury Instructions. COLJI-Crim. H:11 (2018). But the
court, over Galvan’s objection, also instructed the jury on the
provocation exception to self-defense. Galvan claims this was error
5
because there was no evidence that supported the provocation
exception.
¶ 13 Galvan also raises two additional contentions of error
regarding the self-defense instruction and the related concept of
retreat. First, he argues that the self-defense instruction was
defective because it did not distinguish between the two alleged
victims. Second, he contends that the court improperly rejected his
tendered “no retreat” instruction. We address each of these
contentions in turn.
A. Additional Relevant Facts
¶ 14 As to self-defense, the trial court instructed the jury as follows:
The evidence presented in this case has raised
the affirmative defense of “defense of person,”
as a defense to Assault In The Second Degree,
Criminal Attempt to Commit Assault In The
Second Degree, Menacing, and Assault In The
Third Degree.
The defendant was legally authorized to use
physical force upon another person without
first retreating if:
1. he used that physical force in order to
defend himself or a third person from
what he reasonably believed to be the use
or imminent use of unlawful physical
force by that other person, and
6
2. he used a degree of force which he
reasonably believed to be necessary for
that purpose, and
3. he did not, with intent to cause bodily
injury or death to another person,
provoke the use of unlawful physical
force by that other person.
The prosecution has the burden to prove,
beyond a reasonable doubt, that the
defendant’s conduct was not legally authorized
by this defense. In order to meet this burden
of proof, the prosecution must disprove,
beyond a reasonable doubt, at least one of the
above numbered conditions.
....
¶ 15 At the jury instruction conference, Galvan objected to giving
the instruction as written, arguing that there was no evidence of
provocation by him. As to C.M., the prosecutor agreed that there
was no evidence of provocation. The trial court disagreed, stating
that it believed there was some evidence of provocation as to both
alleged victims. Thus, the trial court instructed the jury on
provocation.
¶ 16 Galvan also tendered a separate “no duty to retreat”
instruction and argued that it was necessary because otherwise the
jury might conclude, contrary to established Colorado law, that
7
Galvan had a duty to retreat. The prosecution objected to a
separate no duty to retreat instruction, arguing, successfully, that
the substance of the no duty to retreat instruction was already
encompassed in the model self-defense instruction.
B. The Trial Court Did Not Err in Instructing the Jury on
Provocation
1. Judicial Estoppel
¶ 17 Initially, Galvan argues that the Attorney General cannot
argue on appeal that there was any evidence to support the
provocation instruction because, at trial, the prosecutor agreed with
Galvan that there was no evidence of provocation as to C.M.
¶ 18 We take this to be an argument that the Attorney General is
judicially estopped from arguing on appeal that there was sufficient
evidence to support the provocation instruction. Applying the
established law of judicial estoppel, we reject that argument.
¶ 19 Judicial estoppel is a doctrine that “prevents a party from
taking inconsistent positions in related court proceedings with
intent to mislead the court.” Janicek v. Obsideo, LLC, 271 P.3d
1133, 1140 (Colo. App. 2011). The elements of judicial estoppel are
8
1. The two positions must be taken by the same party (or
parties in privity with each other);
2. the positions must be taken in the same or related
proceedings involving the same parties;
3. the party taking the positions must have been successful in
maintaining the first position and must have received some
benefit in the first proceeding;
4. the inconsistency must be part of an intentional effort to
mislead the court; and
5. the two positions must be totally inconsistent — that is,
the truth of one position must necessarily preclude the
truth of the other.
Arko v. People, 183 P.3d 555, 560 (Colo. 2008) (citing Estate of
Burford v. Burford, 935 P.2d 943, 948 (Colo. 1997)).
¶ 20 For two reasons, the Attorney General is not judicially
estopped from defending the trial court’s decision to instruct the
jury on provocation. First, there is no evidence of an intent to
mislead the court (and Galvan does not argue that there was).
Second, the prosecution did not receive a benefit in the first
9
proceeding based on its position. See Arko, 183 P.3d at 560. 1
Because the judicial estoppel argument fails on two elements, we
need not address the remaining elements.
2. The Standard for Giving a Provocation Instruction
¶ 21 The first question is what quantum of proof is necessary to
authorize an instruction on one of the statutory exceptions to self-
defense. The supreme court has not spoken authoritatively on this
question, although in a recent case it assumed, without deciding,
that the quantum of proof was “some evidence.” Castillo v. People,
2018 CO 62, ¶ 37. At least two divisions of this court have applied
the same quantum of proof standard. People v. Castillo, 2014 COA
1 Nor was the prosecutor’s statement a judicial admission. “A
judicial admission is a formal, deliberate declaration that a party or
his attorney makes in a judicial proceeding for the purpose of
dispensing with proof of formal matters . . . .” People v. Curren, 228
P.3d 253, 257 (Colo. App. 2009). Here, the prosecutor was not
“dispensing with proof of [a] formal matter[],” id., but instead was
commenting on the evidence presented at trial for the purposes of
crafting a jury instruction. Such a comment does not meet the
requirements of a judicial admission.
Evaluating the prosecutor’s statement to the trial court as a
concession on the question of whether there was some evidence of
provocation, we are not bound by that concession. People v.
Backus, 952 P.2d 846, 850 (Colo. App. 1998).
10
140M, ¶¶ 20-21, rev’d on other grounds, 2018 CO 62; People v.
Zukowski, 260 P.3d 339, 347 (Colo. App. 2010). Because we agree
with those divisions, we apply that standard here.
¶ 22 “Whether sufficient evidence exists to support the requested
instruction is a question of law that we review de novo.” Castillo,
¶ 32. We view the evidence in the light most favorable to the giving
of the challenged instruction. People v. Silva, 987 P.2d 909, 914
(Colo. App. 1999).
¶ 23 An instruction on provocation is authorized when “1) self-
defense is an issue in the case; 2) the victim makes an initial attack
on the defendant; and 3) the defendant’s conduct or words were
intended to cause the victim to make such attack and provide a
pretext for injuring the victim.” Id. Thus, for a defendant to forfeit
self-defense under the provocation exception, the defendant must
act with the intent to provoke the victim into attacking first. Id.
3. Whether Colorado Law Requires More Than Words to Justify
Giving a Provocation Instruction Need Not Be Decided in This
Case
¶ 24 Galvan argues that “mere words are not such provocation as
would eliminate one’s right of self-defense.” People v. Winn, 540
11
P.2d 1114, 1117 (Colo. App. 1975) (not published pursuant to
C.A.R. 35(f)); see also Silva, 987 P.2d at 914 (noting that “insulting
language is not a provoking incident” (citing Bush v. People, 10
Colo. 566, 16 P. 290 (1888))).
¶ 25 No published Colorado case has expressly determined
whether, under Colorado law, words alone are sufficient to support
the giving of a provocation instruction.2 Although Silva stated that
“the defendant’s conduct or words” could justify the giving of a
provocation instruction, 987 P.2d at 914 (emphasis added), Silva
did not analyze whether words alone are sufficient to sustain a
provocation instruction. At least one state’s highest court has
determined that under its law, words alone are not enough. State v.
Riley, 976 P.2d 624, 628 (Wash. 1999). We need not decide this
question because, as discussed below, here both words and
conduct supported the provocation instruction.
2 Whether provocation can be proved by words alone or whether
there must always be some conduct by the defendant is a matter of
Colorado law. Federal constitutional law, however, determines
whether particular words may be used to establish provocation
consistent with the First Amendment.
12
4. The First Amendment Does Not Prohibit Some of Galvan’s
Words From Being Considered as Evidence of Provocation
¶ 26 Galvan next contends that consideration of his words to
support the provocation instruction violates the First Amendment.
¶ 27 The First Amendment of the United States Constitution
provides that “Congress shall make no law . . . abridging the
freedom of speech.” Colorado’s counterpart to the First Amendment
provides that “[n]o law shall be passed impairing the freedom of
speech.” Colo. Const. art. 2, § 10.
¶ 28 We first address whether the First Amendment has any
application in this context. The State did not criminally punish
Galvan because of the words he uttered. But the State has,
nevertheless, regulated his speech through the giving of the
provocation instruction. By using his words (at least in part) to
justify giving an instruction that limits his right to self-defense, the
First Amendment was implicated.
¶ 29 While the First Amendment protects the right to free speech,
its protection is not absolute. Virginia v. Black, 538 U.S. 343, 358
(2003). Some categories of speech, such as “fighting words” and
“true threats” are unprotected by the First Amendment, and the
13
government may permissibly regulate that speech. Id. at 358-59;
see also People v. Chase, 2013 COA 27, ¶ 68.3
¶ 30 The Supreme Court has defined fighting words as “those
personally abusive epithets which, when addressed to the ordinary
citizen, are, as a matter of common knowledge, inherently likely to
provoke violent reaction.” Black, 538 U.S. at 359 (emphasis added)
(quoting Cohen v. California, 403 U.S. 15, 20 (1971)). That is,
fighting words are those “which by their very utterance tend to
incite others to unlawful conduct or provoke retaliatory actions
amounting to a breach of the peace.” People In Interest of R.C.,
2016 COA 166, ¶ 10 (quoting Hansen v. People, 190 Colo. 457, 461,
548 P.2d 1278, 1281 (1976)).
¶ 31 The First Amendment permits regulation of such words
because “[i]t has been well observed that such utterances are no
essential part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may be derived
3The Attorney General does not argue that Galvan’s statements
constitute true threats, and because we determine that some of his
words were fighting words and therefore not protected by the First
Amendment, we do not address whether his statements also
constituted true threats.
14
from them is clearly outweighed by the social interest in order and
morality.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
However, “[t]he Supreme Court has ‘never held that the government
may, consistent with the First Amendment, regulate or punish
speech that causes emotional injury but does not have a tendency
to provoke an immediate breach of the peace.’” R.C., ¶ 12 (quoting
Purtell v. Mason, 527 F.3d 615, 624 (7th Cir. 2008)).
¶ 32 “[A] defendant’s words are considered as a ‘package’ in
combination with conduct and physical movements, viewed in light
of the surrounding circumstances.” Id. at ¶ 22 (quoting In re
Welfare of M.A.H., 572 N.W.2d 752, 757 (Minn. Ct. App. 1997)).
Thus, whether speech constitutes fighting words must be
determined on a case-by-case basis, considering all the particular
facts and circumstances. Id.
¶ 33 Recently, another division of this court addressed whether a
photograph, which had been altered to add a drawing of male
genitalia close to a juvenile’s face, constituted fighting words. Id. at
¶¶ 3, 7. The division’s majority observed that “speech that
embarrasses or disgraces another is insufficient to qualify as
15
fighting words. Even vulgar and insulting speech that is likely to
arouse animosity or inflame anger, or even to provoke a forceful
response from the other person, is not prohibited.” Id. at ¶ 18.
¶ 34 That R.C.’s conduct “was not accompanied by any hostile,
aggressive, or threatening language or conduct” was also important
to the majority’s analysis. Id. at ¶ 24. The majority held that the
image did not constitute fighting words because “the average person
— even an average fourteen-year-old — would not be expected to fly
into a violent rage upon being shown [such] a photo of himself . . . .
” Id. at ¶ 32.
¶ 35 While we agree with the exposition of law in the majority
opinion in R.C., the circumstances here are factually
distinguishable from those in R.C. Unlike in R.C., Galvan’s words
reasonably could be understood as inviting S.M. and C.M. to “make
such attack and provide a pretext for injuring” C.M. Silva, 987 P.2d
at 914. This invitation is encapsulated in the following words and
actions, at least according to some of the testimony:
• During the argument on the bus, in response to S.M.
telling him to stop throwing pieces of food at the sleeping
16
partygoer, Galvan stood up and said, “What the fuck are
you going to do about it bitch?” then “stepped forward”
toward S.M. and C.M., who stood up in response.
• Galvan and his sister got in his truck, but he continued
yelling at S.M. and C.M. that they were “nothing but a
bunch of fat, fucking bitches,” “were going to get it,” and
should “watch [their] backs.”
• As Galvan drove slowly down the street, he yelled: “If any
of you want this, well, come and get it.”
• And then he “all of a sudden stop[ped] his truck,” got out,
and started running toward C.M. with his fist cocked, as
if ready to punch.4
¶ 36 Not all of Galvan’s statements constitute fighting words.5 His
repeated statements that S.M. and C.M. were “big, fat bitches,”
4 Galvan also yelled insults at the sisters, calling them “big, fat
bitches” as everyone exited the bus. However, for the reasons
explained in the text, those insults do not rise to the level of fighting
words.
5 We note that there is no contention that any of Galvan’s
statements constitute political speech. Cf. Village of Skokie v. Nat’l
Socialist Party of Am., 373 N.E.2d 21, 25-26 (Ill. 1978) (holding that
the display of swastikas during a march through a community
17
though offensive, were not of such character as to incite the sisters
to react violently. However, his invitation for S.M. and C.M. to
“come and get it” was a direct invitation to violence and stands on a
different footing. State v. Bougneit, 294 N.W.2d 675, 680 (Wis. Ct.
App. 1980), supports our analysis. As in Bougneit, Galvan “invited
[C.M. and S.M.] to fight and, in fact, taunted [them] with fighting
words.” Id.
¶ 37 Unlike R.C., and the cases relied on by the majority there,
Galvan did not merely call S.M. and C.M. names or make offensive
comments. See R.C., ¶¶ 23, 28. He also threatened S.M. and C.M.
by telling them that they should “watch [their] backs,” and then he
invited them to respond with violence by yelling: “If any of you want
this, well, come and get it.” (Emphasis added.)
¶ 38 Also, in contrast to R.C.’s speech, Galvan’s words were uttered
face-to-face with the alleged victims, and were relatively close in
time to the physical altercation between him and C.M. See People
in Interest of R.D., 2016 COA 186, ¶ 19 (holding that because
inhabited by Holocaust survivors did not to amount to “fighting
words” but instead was political speech).
18
statements made over the internet were not made face-to-face or in
close physical proximity to the alleged victim, the statements did
not constitute fighting words) (cert. granted Sept. 5, 2017).
¶ 39 The timing of Galvan’s statements is important because one
factor in determining if words are fighting words is whether they
“tend[] to provoke an immediate breach of the peace.” 6 R.C., ¶ 12
(emphasis added). The evidence presented at trial showed that, at
least, Galvan’s statements made after the group exited the party
bus — that C.M. and S.M. should “watch [their] backs,” “were going
to get it,” and should “come and get it” — were in close temporal
proximity to the physical altercation between C.M. and Galvan.
¶ 40 These specific words, taken in context and “in combination
with [Galvan’s] conduct and physical movements,” id. at ¶ 22
(quoting M.A.H., 572 N.W.2d at 757), were “inherently likely to
provoke a violent reaction.” R.D., ¶ 17 (quoting People in Interest of
K.W., 2012 COA 151, ¶ 30). We conclude that these words were
fighting words and thus are not protected by the First Amendment.
6The record is unclear regarding precisely how much time passed
between when the group exited the party bus and when the
physical altercation between Galvan and C.M. occurred.
19
Therefore, these words could properly be considered in determining
whether some evidence supported the provocation instruction.
5. At Least Some Evidence Supported Giving the Provocation
Instruction
¶ 41 Viewing the evidence in a light most favorable to giving the
provocation instruction, Silva, 987 P.2d at 914, we conclude that
there was at least some evidence that Galvan provoked C.M. See
Zukowski, 260 P.3d at 347. Based on the evidence presented, a
reasonable juror could have found that Galvan’s actions and
statements, discussed above, were intended to give him an excuse
to physically harm C.M. 7 Therefore, the trial court did not err in
instructing the jury on the provocation exception.
C. The Trial Court Did Not Abuse Its Discretion by Declining to
Give A More Specific Provocation Instruction
¶ 42 Galvan also contends that the provocation instruction was
defective because it did not specify to which victim it applied. We
disagree.
7 We emphasize that it is for the jury to determine whether Galvan
in fact provoked C.M., not the trial court or this court. The trial
court’s role is that of gatekeeper, which is why the quantum of proof
to authorize the provocation instruction is low.
20
¶ 43 To begin, the instruction tracked the language of the statute.
“An instruction that tracks the language of the statute, as this one
did, is generally sufficient.” People v. Archuleta, 2017 COA 9, ¶ 52.
It also tracked the language of the Colorado Model Criminal Jury
Instructions. See COLJI-Crim. H:11 (2018).
¶ 44 Galvan argues that “if the jury concluded that Mr. Galvan did
not act in self-defense with respect to S.M. because he allegedly
provoked her, it could have applied that finding to the second
degree assault offense against C.M.” To the extent we understand
his argument, we reject it.
¶ 45 The provocation instruction stated that Galvan did not act in
self-defense if “with intent to cause bodily injury or death to another
person, [he] provoke[d] the use of unlawful physical force by that
other person.” (Emphasis added.) The plain language of the
instruction itself made clear that for Galvan to forfeit the affirmative
defense of self-defense, he had to have provoked the person as to
whom he was asserting self-defense.
¶ 46 “Jury instructions must be read as a whole, and if, when so
read, they adequately inform the jury of the law, there is no
21
reversible error.” People v. Vanrees, 125 P.3d 403, 410 (Colo.
2005). Coupled with the other instructions that correctly informed
the jury that it had to decide the affirmative defense of self-defense
based on the totality of the circumstances, and that each crime
charged was subject to the defense of self-defense, the self-defense
instruction adequately and correctly instructed the jury on the
applicable law. See id. Moreover, the jury was instructed to
consider each charge separately and not let its decision on one
charge influence its decision on the others. We presume the jury
followed that instruction. See People v. Phillips, 91 P.3d 476, 484
(Colo. App. 2004) (“It is presumed the jury understood and heeded
the trial court’s instructions.”).
D. The Trial Court Did Not Abuse Its Discretion by Declining to
Give a Separate No Duty to Retreat Instruction
¶ 47 Galvan next contends that the trial court abused its discretion
in refusing to give his tendered instruction on “no duty to retreat.”
We disagree.
¶ 48 “We review de novo whether a jury instruction states the law
correctly, and we review the trial court’s decision to give a particular
22
jury instruction for an abuse of discretion.” Walker v. Ford Motor
Co., 2017 CO 102, ¶ 9.
¶ 49 “The trial court must tailor the self-defense instructions to the
particular circumstances of the case in order to adequately apprise
the jury of the law of self-defense from the standpoint of the
defendant.” Cassels v. People, 92 P.3d 951, 956 (Colo. 2004). “In
cases where the jury could reasonably conclude that the defendant
had a duty to retreat before using force in self-defense, the
defendant may be entitled to a self-defense instruction tailored to
address the issue of retreat.” Id. Still, a court may refuse an
instruction that states principles already encompassed elsewhere in
the court’s instructions. People v. Tweedy, 126 P.3d 303, 307
(Colo. App. 2005).
¶ 50 The jury was instructed that Galvan “was legally authorized to
use physical force upon another person without first retreating . . . .”
(Emphasis added.) The instruction containing the “no retreat”
language tracked the language of the model jury instruction.
COLJI-Crim. H:11 (2018); see also People v. Grenier, 200 P.3d 1062,
23
1080 (Colo. App. 2008) (finding no error where the jury instruction
tracked the language of the model jury instruction).
¶ 51 Cassels, 92 P.3d at 956, and Idrogo v. People, 818 P.2d 752
(Colo. 1991), are distinguishable because in those cases, none of the
jury instructions told the jury that the defendant did not have a
duty to retreat. Both of those cases were decided before the model
jury instructions specifically addressed the “no duty to retreat”
principle embedded in Colorado law. Thus, when the court stated
in Cassels that “a standard self-defense instruction does not
adequately apprise the jury that a defendant who is not the initial
aggressor does not need to retreat before using force in self-
defense,” 92 P.3d at 956, the court was assessing instructions that
did not address the duty to retreat. The model jury instruction
given in this case addresses that principle of law and, consequently,
the jury was correctly instructed.
¶ 52 For these reasons, the trial court did not abuse its discretion
by failing to give Galvan’s tendered no duty to retreat instruction.
24
III. The Prosecutor’s Statements Regarding the Victims’ Rights to
a Fair Trial Were Harmless
¶ 53 Finally, Galvan argues that the trial court erred by allowing
the prosecutor to suggest to potential jurors that the alleged victims
had rights to a fair trial that were equal to Galvan’s constitutional
rights to due process and a fair trial.
A. Additional Facts
¶ 54 During voir dire, the prosecutor had the following colloquy
with Jurors 2, 4, and 12:
[PROSECUTOR]: Juror Number 2. I’m going to
switch gears again. So the judge talked about
the right to a fair trial. And, of course, we
know that the defendant has a right to a fair
trial. Part of that is the presumption of
innocence. My question, though, is what about
the victim’s right to a fair trial? What do you
think about that?
JUROR NUMBER 2: I think it’s important that
they --
(Emphasis added.) Galvan’s counsel objected, and the court
overruled the objection. The potential juror continued:
JUROR NUMBER 2: I think the victim has a
right to have the -- all the facts put out and
the correct conclusions found by the jury.
25
¶ 55 Later, the prosecutor again asked about the victims’ rights to a
fair trial.
[PROSECUTOR]: Juror Number 4. I want to
come back to this right of a fair trial. And, you
know, the defendant is going to sit before you
for the next few days, there’s not going to be a
victim sitting at my table or even in the
courtroom. What [are] your thoughts of the
victim’s right to a fair trial?
(Emphasis added.) Galvan’s counsel again objected, and the court
again overruled the objection. The potential juror then answered:
JUROR NUMBER 4: They deserve a fair trial,
as well, and have their side heard.
¶ 56 Sometime later, in speaking with Juror 12, the prosecutor
said:
[PROSECUTOR]: I realize this has now kind of
drug [sic] on for a while, so I don’t want to
repeat myself. I just want to know if you have
any thoughts on — we’ve talked about several
issues; alcohol consumption, the victim’s right
to a fair trial, the issue of man versus woman
in self-defense, any of those issues. Do you
have any specific thoughts that you think we
should all be aware of?
JUROR NUMBER 12: No, I don’t.
(Emphasis added.) Jurors 4 and 12 served on Galvan’s jury.
26
B. Standard of Review and Applicable Law
¶ 57 Our review of a claim of prosecutorial misconduct involves a
two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.
2010). First, we determine whether the conduct at issue was
improper based on the totality of the circumstances. Id. If we
determine there was misconduct, we next determine whether the
misconduct warrants reversal under the applicable standard of
reversal. Id.
¶ 58 In determining whether prosecutorial misconduct has
occurred, “[t]he context in which [the] challenged prosecutorial
remarks are made is significant.” People v. Krueger, 2012 COA 80,
¶ 50 (quoting People v. Santana, 255 P.3d 1126, 1133 n.5 (Colo.
2011)). A prosecutor engages in prosecutorial misconduct during
voir dire when she misstates the law or “intentionally use[s] the voir
dire to present factual matter which the prosecutor knows will not
be admissible at trial or to argue the prosecution’s case to the jury.”
People v. Adams, 708 P.2d 813, 815 (Colo. App. 1985) (emphasis
omitted) (quoting I ABA Standards for Criminal Justice § 3-5.3(c)
(2d ed. 1980)).
27
C. A Prosecutor May Not State or Imply that a Victim’s Rights are
Equal to the Rights of the Criminal Defendant
¶ 59 Although no Colorado court has addressed whether a
prosecutor may properly suggest to a jury venire that a victim’s
rights under the Colorado Constitution, Colo. Const. art. 2, § 16a,
and sections 24-4.1-301 to -303, C.R.S. 2018, are equal to those of
a criminal defendant, courts in other states have addressed this
question under those states’ laws.
¶ 60 For example, the Arizona Supreme Court concluded that “[i]t
cannot be doubted that victims of crime, and their families, have
certain rights. It is equally clear, however, that these rights do not,
and cannot, conflict with a defendant’s right to a fair trial.” State v.
Bible, 858 P.2d 1152, 1205-06 (Ariz. 1993) (citations omitted).
Similarly, the New Mexico Court of Appeals held, in addressing
claims of prosecutorial misconduct, that “[p]rosecutors should not
suggest that a victim’s rights . . . can outweigh a defendant’s
28
constitutional rights.” State v. Dombos, 180 P.3d 675, 686 (N.M. Ct.
App. 2008). 8
¶ 61 We agree with these courts. Although the alleged victims in
this case have certain constitutional and statutory rights, Colo.
Const. art. 2, § 16a; §§ 24-4.1-301 to -303, those rights do not rise
to the same level and cannot conflict with Galvan’s constitutional
rights to due process and a fair trial under the United States
Constitution. U.S. Const. amends. V, VI.
8 Still other courts have addressed (in a more cursory manner)
circumstances where the prosecutor made a comparison between
the rights of the victim and the rights of the criminal defendant. All
of these courts found the comments improper, yet concluded
reversal was not required. See McNair v. State, 653 So. 2d 320, 337
(Ala. Crim. App. 1992) (holding that despite the fact that “[t]he
prosecutor made numerous references to the victim’s rights and
several times implied that her rights were to be weighed against the
[defendant’s],” the error was not reversible); Jennings v. State, 453
So. 2d 1109, 1113-14 (Fla. 1984) (concluding that it was improper
for the prosecutor to “compare[ the defendant’s] right to use the
telephone to call an attorney during his interrogation and the
victim’s right to live”), vacated on other grounds, 470 U.S. 1002
(1985); State v. Marshall, 586 A.2d 85, 171 (N.J. 1991) (holding that
the prosecutor’s comment that the victim “had a right to live her life
in full” was harmless beyond a reasonable doubt); Bell v. State, 724
S.W.2d 780, 802-03 (Tex. Crim. App. 1986) (concluding that the
error in allowing the prosecutor’s comment on the victims’
constitutional rights was not reversible).
29
¶ 62 The prosecutor never explicitly stated that the alleged victims’
rights were equal to or greater than Galvan’s. But, to the extent the
prosecutor’s statements implied such an equivalence, the
prosecutor should not have made, and the trial court should not
have permitted, such statements.
D. Any Error Was Harmless
¶ 63 Even if a fair inference of the prosecutor’s remarks was that
the victims’ rights were equal to, or in conflict with, Galvan’s rights,
any error was harmless. The jury was properly instructed regarding
Galvan’s constitutional right to a fair trial, and on the presumption
of innocence. The trial court gave no instruction regarding the
alleged victims’ rights to a fair trial. Nor did the prosecutor mention
the alleged victims’ rights again during trial. So, the prosecutor’s
statements, if improper, did not “substantially influence[] the
verdict or affect[] the fairness of the trial proceedings.” Hagos v.
People, 2012 CO 63, ¶ 12 (quoting Tevlin v. People, 715 P.2d 338,
342 (Colo. 1986)); see also Bible, 858 P.2d at 1206 (determining
that the prosecutor’s statements equating the victim’s rights with
the defendant’s were not “fundamental error”).
30
¶ 64 Moreover, the split verdicts in this case demonstrate that the
jury followed the court’s instructions, which, as noted, correctly
instructed the jury regarding Galvan’s constitutional rights.
IV. Conclusion
¶ 65 The judgment is affirmed.
JUDGE TAUBMAN and JUDGE TOW concur.
31