A woman sentenced to 96 years in prison for stabbing another passenger on a bus will receive a new trial, after the Colorado Supreme Court on Monday decided 5-2 that she did not have to retreat during a confrontation.
“We hold that the prosecution may not argue that a defendant acted unreasonably in self-defense because she failed to retreat from an encounter,” wrote Justice William W. Hood, III for the majority.
Sheila Renee Monroe boarded a Regional Transportation District bus and sat in the back row next to James Faulkenberry. Witnesses testified that both parties became aggressive. Monroe allegedly brandished a knife and told Faulkenberry that a nearby acquaintance had a gun. Approximately 10 minutes into the argument, Monroe stabbed Faulkenberry in the neck.
Her attorney argued that Faulkenberry had reached into his jacket, and the stabbing was in self-defense while he pulled out his phone. Prosecutors countered that Faulkenberry had only threatened to call the police.
During closing arguments, one of the prosecutors told jurors that “[n]o one in Colorado has to run away from someone endangering them. But let’s be clear. When you do not remove yourself from a situation when you easily can, that contradicts that you were in fear of being hurt.” Defense counsel objected, but the trial judge allowed the statement to stand. The judge further permitted the prosecutor to make statements alleging that the “reasonable” and “appropriate” thing to do would be for Monroe to retreat down the bus aisle from the danger.
Under Colorado law, a person can use force to defend “from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.” The statute also permits use of deadly force in certain conditions, and does not mandate the defender to retreat from the threat.
In Monroe’s case, jurors convicted her of attempted first degree murder and first degree assault. The Colorado Court of Appeals deemed as improper the prosecution’s argument that she should have retreated in the face of imminent danger. It amounted to an assertion that “a scared person should retreat instead of using force,” observed Judge Ted C. Tow, III. The panel did not, however, take a position on the claim that because Monroe did not retreat, she did not feel there would be imminent use of force against her.
“[B]ecause we conclude that the prosecution’s argument here inappropriately imposed a duty to retreat,” wrote Tow, “we leave for another day the issue of whether it would ever be proper to attack the veracity of a defendant’s claimed belief in the need for defensive force by highlighting an unused avenue of retreat.”
The court ordered a new trial for Monroe because the jury likely received conflicting messages on whether she had a duty to retreat.
Hood, in answering the question the Court of Appeals left unresolved, agreed with Monroe that asking jurors to consider all of the circumstances invites them to second-guess the reasonableness of a defendant’s actions. In addition, the disputed question of whether Monroe was the aggressor likely led to the injection of reasonable retreat as an issue affecting the verdict.
“To allow the prosecution to argue that a defendant’s failure to retreat undermines the reasonableness of that defendant’s self-defense claim would cripple the no-duty-to-retreat rule,” he wrote. Because humans have a difficult-to-control fight, flight or freeze reflex, “a defendant’s decision to retreat is no more proof that she faced an imminent threat of unlawful force than a decision to remain and fight.”
Allowing testimony about avenues of retreat, Hood concluded, suggests that a jury can question the defendant’s response to a threat unrelated to their perception of the threat. Although other states allow for prosecutorial arguments on the retreat issue, the court’s majority refused.
Chief Justice Nathan B. Coats, dissenting for himself and Justice Brian D. Boatright, believed the prosecution’s comments did not suggest to the jury that Monroe should have used lesser force or retreated from the confrontation, given the explicit instructions jurors received.
“Each time the prosecutor argued that the defendant’s failure to retreat, notwithstanding the ease with which she could have simply moved away from where the victim was sitting on the bus, was relevant to the question whether she actually believed she had to defend herself against an imminent use of unlawful physical force by that victim,” Coats wrote, “he emphasized that the defendant nevertheless did not have any duty to retreat before using deadly force.”
Rather than deem the statements prosecutorial misconduct, Coats observed that the law bars someone from using deadly force if lesser force is sufficient. The prosecutor, instead of alleging a duty to retreat, was instead asking the jury to draw inferences from the evidence.
The case is People v. Monroe.