Colorado’s second-highest court overturned a defendant’s murder conviction on Thursday, concluding an Arapahoe County judge provided an incorrect self-defense instruction to the jury about the road rage encounter.

In November 2020, Romeo Desean Thompson was behind Phillip Hunt at an intersection. The light turned green, but Hunt did not immediately move forward. Thompson honked, after which Hunt drove ahead, then stopped to brake check Thompson.

Thompson pulled next to Hunt’s car and threw a Gatorade bottle, which hit Hunt’s door. Thompson then left, and Hunt chased after him. After 4 miles, Thompson pulled over in a residential neighborhood. Hunt pulled in front of Thompson’s car to block him. The men got out almost simultaneously and they began fighting.

Thompson then pulled out a gun and shot Hunt three times. He left the scene. Hunt died from his wounds and prosecutors charged Thompson with first-degree murder and unlawful possession of a firearm.

The defense asserted that Thompson was acting in self-defense, meaning he used deadly force in response to a reasonable belief that Hunt would unlawfully use force against him, and Thompson believed he would be killed or seriously injured if he did not act.

The prosecution argued jurors should also consider whether Thompson was the initial aggressor, which generally would defeat a self-defense claim.

“It is my position that honking, that throwing the bottle and getting out of the car first are all aggressive movements and are all some evidence of the defendant being the initial aggressor,” the prosecutor said.

Thompson’s attorney countered that the honking and bottle throwing happened long before the fight, and that Hunt was the one who slammed Thompson first.

District Court Judge Shay Whitaker was uneasy about labeling Thompson the initial aggressor, noting Thompson’s actions did not necessarily amount to physical force.

“I don’t have any indication that there were even words exchanged that were, ‘We’re going to get you, kill you. I’m going to shoot you,’” she said.

Moreover, Whitaker continued, Thompson was the one who drove off in an apparent withdrawal from the encounter.

“How do we, I guess, get around … the fact that, for 4 miles and 10 minutes, he did everything he could to get away from this person and to avoid, not only a verbal confrontation, but anything remotely physical?” she wondered.

Ultimately, Whitaker instructed the jury to consider whether Thompson was the initial aggressor. It found him guilty of second-degree murder and Thompson received 30 years in prison.

On appeal, Thompson argued none of his actions rendered him the initial aggressor, making the instruction misleading. The Colorado Attorney General’s Office countered that, when “viewed as a single, continuous act,” Thompson initiated the physical conflict.

A three-judge Court of Appeals panel agreed with Thompson.

“First, the parties agree — as do we — that honking a horn in traffic is analogous to a verbal insult, which, without more, does not create initial aggressor status,” wrote Judge W. Eric Kuhn in the Nov. 20 opinion. The bottle throw, also, was not an initiation of physical conflict, and was followed by Hunt chasing Thompson for 4 miles.

“This evidence demonstrates that if anyone was the initial aggressor in this conflict it was (Hunt), not Thompson, because (Hunt) escalated the situation from insults and provocation when he initiated the actual physical conflict,” wrote Kuhn.

He added that video evidence showed Thompson and Hunt exiting their vehicles simultaneously, and Hunt being the one to shove Thompson first. Therefore, he was not the initial aggressor.

Although it was unclear whether the jury rejected Thompson’s claim of self-defense because it determined he was the initial aggressor or because of some other reason, the panel concluded it was possible jurors acted at the prosecutor’s prompting and convicted Thompson for initiating the fight.

The panel ordered a new trial.

The case is People v. Thompson.