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Because a Jefferson County prosecutor suggested to jurors that a defendant should have retreated in the face of a threat — even though there is no legal requirement to do so — the Court of Appeals has ordered a new trial.

The inappropriate comments ran contrary to Colorado's "no duty to retreat" rule, which bars prosecutors from arguing that a person who used force in self-defense should have first avoided the encounter. The Colorado Supreme Court previously addressed prosecutors' misstatements of this rule in 2020, holding that a jury would run the risk of concluding, wrongly, that a defendant had not acted reasonably if they resorted to force instead of escaping.

In the case before a three-judge panel of the appellate court, a jury convicted Kirk Samuel Wertz in 2018 of disorderly conduct and menacing after he allegedly pointed a revolver at the occupants of a truck in Arvada. Wertz reported the encounter to police himself, saying that brandishing the gun was a response to the truck almost hitting him. In his telling, the truck was jockeying for lane space with Wertz's vehicle and he feared for his life.

The conviction resulted in a sentence of four years of probation.

Wertz appealed, citing the unnamed prosecutor's comments during closing arguments. Earlier in the trial, the prosecutor cross-examined Wertz, getting Wertz to say that he felt he had no choice but to pull his gun.

"You didn’t avoid this situation, did you?" the prosecutor asked.

"I didn't cause it," Wertz responded.

The prosecutor followed up: "You never hit [your] brakes, did you?"

Wertz described how he tried to slow down, but the truck slowed down with him. The same thing happened when he tried to speed up. Wertz said he was "driving down the road after church minding my own business" and feared for his life.

But the prosecutor, during closing arguments, used the testimony to suggest that Wertz could have turned off the road at several places, and characterized him as a person with "vigilante fantasies" who failed to employ any number of reasonable responses to a road rage incident.

"If you know that area, look at the businesses in that area. There are right turns. Look at the maps. There are right turns. They will jump out at you. He had a million options," the prosecutor said. "He wanted to go for his gun."

The appellate panel deemed the comments clearly wrong. By calling 9-1-1 after the encounter, Wertz had established himself as someone who seemingly had no inclination toward criminal activity. Furthermore, one of the truck's occupants gave different statements on the witness stand than they had given to the officer who responded. Without overwhelming evidence against Wertz, a misstatement of the law could have, the panel concluded, swayed the outcome.

"[T]he prosecutor’s numerous improper comments may well have affected the jury’s evaluation of Wertz’s defense of self-defense — so much so, that the reliability of the jury’s verdict is, in our view, in serious doubt," wrote Judge John Daniel Dailey in the Oct. 7 opinion.

The panel found the circumstances of Wertz's trial to be similar to a case the Supreme Court decided last year, People v. Monroe. A Denver prosecuctor had repeatedly mentioned that a woman who stabbed her fellow passenger on a bus, allegedly in self-defense, "could have backed away, if she wanted to, if she was actually afraid.”

The Court affirmed that prosecutors may not point to an unused avenue of retreat to undermine a self-defense claim. The appeals court in Wertz's case applied the same logic, observing that the prosecutor had effectively said a reasonable person would have fled if they were facing the threat Wertz was.

"Read in context, the prosecutor’s comments in this case were precisely the type found improper in Monroe," Dailey wrote.

A spokesperson for the First Judicial District Attorney's Office said the prosecutor is no longer employed with the office.

The case is People v. Wertz.

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