Peo v. Priest

21CA2104 Peo v Priest 08-01-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA2104

Jefferson County District Court No. 20CR3274

Honorable Jason Carrithers, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Clinton Eugene Priest,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division IV

Opinion by JUDGE NAVARRO

Pawar and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 1, 2024

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy

State Public Defender, Denver, Colorado, for Defendant-Appellant

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¶ 1 Defendant, Clinton Eugene Priest, appeals the judgment of

conviction imposed on jury verdicts finding him guilty of second

degree murder and first degree assault. We reverse and remand for

a new trial.

I. Factual and Procedural History

¶ 2 On September 23, 2020, Priest and the decedent, Robert

Miller, were drinking at a bar. They interacted to some extent and

then both left when the bar closed. Both men went out the back of

the bar to a parking lot.

¶ 3 When the bartender left a little while later, he found Miller

lying on the ground with blood on him. Miller subsequently died

from blood loss due to a stab wound to his bicep.

¶ 4 After leaving the bar, Priest went home, where his son called

911. Officers and paramedics arrived at Priest’s home, and he

claimed he had been attacked and injured at the bar. Paramedics

transported him to the hospital, where he was medically cleared,

and officers took him to the police station, where they later arrested

him.

¶ 5 The prosecution charged Priest with second degree murder,

four counts of possession of a weapon by a previous offender

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(POWPO), and two crime of violence sentence enhancers.

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At trial,

Priest did not testify but asserted, through counsel, that he acted in

self-defense. As noted, the jury found him guilty of second degree

murder and first degree assault.

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¶ 6 On appeal, Priest raises multiple contentions in support of his

request for reversal of the judgment. We agree with him that the

trial court erred by instructing the jury on unsupported exceptions

to self-defense. Accordingly, we reverse without the need to reach

his other claims.

II. Instructions on Self-defense Exceptions

¶ 7 Because insufficient evidence supported the instructions on

the provocation and initial aggressor exceptions to self-defense,

Priest is right that the trial court should not have given those

instructions.

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The prosecution later added one count of first degree assault, one

count of second degree assault, and two additional crime of violence

enhancers. The prosecution received permission to dismiss two

POWPO counts. The prosecution planned to try the remaining

POWPO counts in a bifurcated trial depending on the verdict on the

murder charge.

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Following the verdict, the prosecution successfully moved to

dismiss the remaining counts.

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A. Standard of Review and Preservation

¶ 8 We review de novo whether sufficient evidence exists to

support a requested instruction. Castillo v. People, 2018 CO 62,

¶ 32. Because Priest objected to the prosecution’s request for the

instructions on the exceptions to self-defense, we review any error

for harmless error. See id. at ¶ 56. Therefore, we must reverse if

an error substantially influenced the verdict or affected the fairness

of the trial. See id. at ¶ 57.

B. Relevant Law

¶ 9 As pertinent here, Colorado’s self-defense statute provides that

“a person is justified in using physical force upon another person in

order to defend himself or a third person from what he reasonably

believes to be the use or imminent use of unlawful physical force by

that other person.” § 18-1-704(1), C.R.S. 2023. But there are

exceptions to this affirmative defense. Two were presented to the

jury in this case: the initial aggressor and provocation exceptions.

¶ 10 Under the initial aggressor exception, a person is not justified

in using physical force if

[h]e or she is the initial aggressor; except that

his or her use of physical force upon another

person under the circumstances is justifiable if

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he or she withdraws from the encounter and

effectively communicates to the other person

his or her intent to do so, but the latter

nevertheless continues or threatens the use of

unlawful physical force.

§ 18-1-704(3)(b). An initial aggressor is someone who “initiated the

physical conflict by using or threatening the imminent use of

unlawful physical force.” Castillo, ¶ 41 (citation omitted).

¶ 11 Under the provocation exception, a person is not justified in

using physical force if, “[w]ith intent to cause bodily injury or death

to another person, he provokes the use of unlawful physical force

by that other person.” § 18-1-704(3)(a). Therefore, a defendant

forfeits self-defense as an affirmative defense if (1) the other person

uses unlawful physical force against the defendant; (2) the

defendant provoked the use of such physical force by the other

person; and (3) the defendant intended to goad the other person

into attacking in order to provide a pretext to injure or kill that

person. Galvan v. People, 2020 CO 82, ¶ 19.

¶ 12 When a court instructs the jury on the affirmative defense of

self-defense, “it should instruct the jury on the provocation

exception or any other exception to that defense if the exception is

supported by some evidence.” Id. at ¶ 25. “To qualify as ‘some

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evidence,’ the evidence must be such as would support a

reasonable inference that the accused was the initial aggressor or

provoked the other person into attacking (or appearing to attack)

him.” People v. Roberts-Bicking, 2021 COA 12, ¶ 31.

C. Additional Facts

¶ 13 The prosecutor did not object to Priest’s request for an

instruction on self-defense on the ground that the evidence did not

support it. Instead, the prosecutor objected to a self-defense

instruction that did not include the identified exceptions. When the

prosecutor requested instructions on the initial aggressor and

provocation exceptions, however, the prosecutor did not point to

specific evidence supporting them. Defense counsel objected to

instructions on those exceptions, arguing that the evidence did not

support giving either exception.

¶ 14 The trial court agreed with the prosecutor that the evidence

supported instructions on the self-defense exceptions, explaining as

follows:

I think the evidence presented thus far shows

an interaction where Mr. Priest and Mr. Miller

left the bar together. They walked down the

driveway to the back parking lot. A person,

reasonably concluded as Mr. Priest, got into a

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vehicle, started to drive, stopped, got out of the

vehicle, some sort of altercation occurs.

Someone gets back in the vehicle, again, still

presumably Mr. Priest, and drives off.

The court so instructed the jury.

D. Application

1. The Trial Court Erred

¶ 15 As noted, the prosecution during trial did not point to specific

evidence supporting the instructions on the exceptions to self-

defense. On appeal, the People point only to a surveillance video in

support of those instructions. The unenhanced surveillance video

shows a view from a parking lot next door to the bar. The parking

lot is depicted in the upper right-hand corner of the video and is

very dark. The altercation is barely visible. All that is clearly

discernible on the video is a car being turned on, someone standing

in front of the car, the car starting to move then stopping, some

shadows during a fight, and the car driving off. Even the

forensically enhanced videos show little more than that.

¶ 16 The People highlight that Priest relied on that video to “craft a

narrative about the fight and argue he acted in self-defense.”

Because that video shows little of how the altercation transpired,

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the People assert that it must necessarily support the inference that

Priest was the initial aggressor or provocateur when he got out of

the car. The People’s argument hinges on the notion that, because

the video shows very little definitively, it is at least “as supportive of

provocation and initial aggressor as self-defense”; therefore, the

court needed to instruct the jury on all three concepts.

¶ 17 This argument, however, misconstrues the proper analysis.

The question before us is not whether the jury should have been

instructed on self-defense. As noted, the prosecutor did not argue

below that the evidence was insufficient to support Priest’s self-

defense claim. And the People on appeal do not make this

argument as an alternative ground to affirm the judgment.

¶ 18 Thus, even if the evidence supporting self-defense were weak,

that is immaterial to this appeal.

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The only question before us on

this issue is whether some evidence supported instructing the jury

on the exceptions to self-defense. So we must decide whether the

video, and other admitted evidence, created a reasonable inference

3

We note that other evidence besides the video supported Priest’s

self-defense claim because he told police officers that he had been

attacked from behind and there was some physical evidence from

the incident.

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that Priest either acted as the initial aggressor or provoked Miller

into attacking him.

¶ 19 We see no evidence that supports such an inference. The

video itself is quite dark and does not show who instigated the fight,

what words might have been exchanged, what gestures might have

been made, or anything that could suggest that either exception

applies. And the enhanced videos show only some additional

shadows and movement. Although one can see Priest’s car stop

and his getting out of the car, that alone is insufficient to support

the exceptions. See Castillo, ¶ 53 (concluding that a defendant

popping the trunk and getting out of a car was insufficient on its

own to justify instructing the jury on the initial aggressor

exception). The video and its enhancements, without more, do not

show provocation or that Priest was the initial aggressor. And no

other evidence was presented at trial that could support giving the

instructions. Even considering the evidence in the light most

favorable to giving the challenged instructions, the evidence is

insufficient. Cf. Roberts-Bicking, ¶¶ 36, 40 (concluding that

evidence the defendant produced a pistol during an argument

warranted an instruction on the initial aggressor exception and that

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the defendant’s statements in a police interview were sufficient to

instruct the jury on the provocation exception). Consequently, the

trial court erred by giving the jury instructions on the provocation

and initial aggressor exceptions to self-defense.

2. Harmlessness

¶ 20 We must then decide whether the error was harmless. We

note that the People do not argue that the error was harmless. And

we conclude that it was not.

¶ 21 Our supreme court has decided that a superfluous instruction

on a self-defense exception could prejudice a defendant because the

jury “is likely to try to fit facts into an erroneously given instruction”

even if the evidence does not support it. Castillo, ¶ 61. The

supreme court has noted, however, that something more is

necessary to transform a “possibility of prejudice” into “something

that substantially influenced the verdict” or affected the fairness of

the trial. Id. at ¶ 62. The something more could be the

prosecution’s reliance on the erroneous instruction. See id.

¶ 22 Here, Priest’s only defense was self-defense, so it was integral

to the trial. The erroneous exceptions instructions, therefore, had

strong potential to undermine his defense. And the prosecution

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relied heavily on the initial aggressor exception during closing

argument, explicitly referring multiple times to Priest as the initial

aggressor and “the one who instigated this.” This reliance on the

erroneous instruction substantially influenced the verdict. See id.

at ¶ 66 (“Given the superfluous jury instruction and the statements

by the prosecution, we conclude that the trial court’s erroneous

decision to give the initial aggressor jury instruction substantially

influenced the verdict or affected the fairness of the trial

proceedings.”).

¶ 23 Although we acknowledge that the prosecutor did not rely on

the provocation exception during closing, the prejudice created by

the initial aggressor instruction is sufficient to require reversal.

Accordingly, we reverse the judgment and remand for a new trial.

III. Priest’s Other Contentions

¶ 24 We decline to address Priest’s remaining contentions because

they involve facts specific to how the trial unfolded, they depend on

the particular evidence and arguments presented (especially as to

any possible prejudice to Priest), and some were not preserved for

our review. Because they “may not occur on retrial under the same

circumstances, if at all, we do not address them.” Bullington v.

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Barela, 2024 COA 56, ¶ 30. Addressing them now would result in

an advisory opinion based on supposition about how the new trial

will unfold, which risks improperly depriving the parties of their

prerogative to litigate the case as they choose. See People v. Becker,

2014 COA 36, ¶ 29; see also People v. Lybarger, 700 P.2d 910, 915

(Colo. 1985) (“Axiomatic to the exercise of judicial authority is the

principle that a court should not decide a constitutional issue

unless and until such issue is actually raised by a party to the

controversy and the necessity for such decision is clear and

inescapable.”).

¶ 25 Our decision not to address those issues, however, should not

be construed as reflecting any opinion on the merits of the issues.

See Becker, ¶ 30.

IV. Conclusion

¶ 26 The judgment is reversed, and the case is remanded with

directions.

JUDGE PAWAR and JUDGE JOHNSON concur.