Although the Colorado Supreme Court is currently weighing whether to implement a new unanimity requirement for jury verdicts that involve self-defense, the Court of Appeals on Thursday issued a decision saying no such hurdle is necessary.

In December, the justices heard oral argument about whether, in cases where the defendant claims he acted in self-defense, a jury needs to unanimously decide which of several exceptions made his behavior not constitute self-defense. Among the factors: a defendant could have been the initial aggressor in an assault or he could have provoked an attack. If prosecutors successfully proved either of those, it would not be lawful for the defendant to use physical force to defend himself.

For that case, People v. Mosely, a panel of the Court of Appeals decided it violated the requirement of a unanimous jury verdict if some jurors believed prosecutors proved one self-defense exception and other jurors understood a different one was proven.

“There will be more deadlocked juries if the Court of Appeals rule is allowed to stand,” Gabriel Olivares, an assistant attorney general, warned the justices at oral argument.

But in the appellate decision issued on Thursday, a different panel opted against following the earlier ruling. 

Philo Roberts-Bicking shot a man six times, and then hit the man’s brother with the gun. There was a confrontation in Roberts-Bicking’s bedroom about rent he owed, and accounts differed about whether the brothers merely told Roberts-Bicking to leave before he started shooting or if they first attacked him. Prosecutors in Arapahoe County charged him with attempted murder, assault and menacing. 

A jury convicted Roberts-Bicking. He appealed, arguing the trial court judge should have told the jury they needed to unanimously agree Roberts-Bicking was either the provocateur or the initial aggressor in order to reject his self-defense argument.

However, the Court of Appeals panel pointed to a Colorado Supreme Court decision from December – specifically, a footnote in the majority’s decision – that stated a defendant could be both the provocateur and initial aggressor during an altercation. Therefore, it would not matter which exception jurors believed made Roberts-Bicking guilty.

“Because the components of the initial aggressor and provocation exceptions are no longer necessarily incompatible, an instruction saying that at most only one of the two exceptions could apply is inaccurate,” wrote Judge Ted C. Tow III.

The court upheld the convictions. The case is People v. Roberts-Bicking.

Last summer, the Supreme Court issued a pair of decisions under similar circumstances, in which defendants claimed their juries needed to agree unanimously on the method the defendants used to commit the crime, when the law provided multiple options. The justices responded that it was unnecessary for juries to agree on the method, although they found it unlikely that the actual jurors involved disagreed.