The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY May 9, 2019

No. 16CA1988, People v. Galvan — Constitutional Law — First Amendment — Freedom of Speech — Fighting Words; Criminal Law — Jury Instructions — Defenses — Use of Non-Deadly Physical Force (Defense of Person) — Provocation Exception

The division holds that a defendant’s taunts at the alleged

victims were fighting words and, thus, were not protected by the

First Amendment. Those words, therefore, could be considered in

determining whether there was some evidence that the defendant

provoked the victims, thereby authorizing the giving of a

provocation instruction.

The division also concludes that a prosecutor may not imply to

a jury venire that the alleged victims have rights that are equal to,

or in conflict with, the rights of the criminal defendant. COLORADO COURT OF APPEALS

Court of Appeals No. 16CA1988 Weld County District Court No. 15CR554 Honorable Marcelo A. Kopcow, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jose Luis Galvan, Sr.,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I Opinion by JUDGE BERGER Taubman and Tow, JJ., concur

Announced May 9, 2019

Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney General, Colleen Wort, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith E. Osborne, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 A jury convicted Jose Luis Galvan, Sr., of second degree

assault. Galvan appeals, contending that the trial court erred in (1)

instructing the jury on the provocation exception to self-defense; (2)

not giving a self-defense instruction for each alleged victim; (3)

failing to give a separate no duty to retreat instruction; and (4)

permitting the prosecutor to suggest to the jury during voir dire

that the alleged victims had rights to a fair trial that were equal to

that of Galvan’s. Because no reversible error infected the judgment,

we affirm.

I. Relevant Facts and Procedural History

¶2 One night, Galvan and his sister took a “party bus” from

Greeley to Denver. There were numerous other people on the bus,

including S.M. and her sister, C.M. (the alleged victims). Everyone

in the group was drinking heavily, with the exception of Galvan’s

sister.

¶3 While in Denver, the group visited three or four bars and

continued to drink heavily. By the time the group returned to the

bus to head back to Greeley, everyone was highly intoxicated

(except Galvan’s sister). On the way back to Greeley, Galvan and

1 S.M. began to argue — though the reason the argument began was

disputed.

¶4 S.M. testified that she saw Galvan throwing pieces of food at

another partygoer who was asleep on the bus. S.M. told Galvan to

stop, but he persisted. S.M. then told Galvan to “knock the fuck

off,” to which he responded, “What are you going to do about it

bitch?” The two continued shouting at each other, and Galvan

stood up and again said, “What the fuck are you going to do about

it bitch?” He then took a step toward S.M., and both she and C.M.

stood up in response. At that point, the bus driver intervened and

told the group that if they did not stop arguing, they would be

walking home to Greeley. They temporarily stopped.

¶5 Galvan’s sister’s testimony painted a very different version of

these initial events. Galvan’s sister testified that throughout the

evening, C.M. had been making sexual comments to her, making

her uncomfortable. At one of the bars in Denver, C.M. asked the

sister to dance. When the sister said no, C.M. told her she needed

a “shot” to loosen up and relax a little bit. The sister declined the

drink. When C.M. asked the sister to dance again sometime later,

2 the sister agreed. But, while on the dance floor, C.M. touched the

sister and made her uncomfortable. The sister told Galvan that she

wanted to leave. She and Galvan called some friends to see if

anyone was in Denver who could give them a ride back to Greeley.

No one answered. So, when the group boarded the bus to head

back to Greeley, Galvan and his sister were on the bus.

¶6 Again, according to the sister, C.M. sat next to her and

continued to make sexual comments to her. At one point, C.M.

touched the sister’s breast. Galvan slapped C.M.’s hand away and

pushed her to the side. According to the sister, that is when the

situation escalated. C.M. and S.M. started yelling at Galvan and

telling him that his sister could make her own decisions. At that

point, Galvan stood up and began yelling at S.M. and C.M. S.M.

and C.M. responded in kind.

¶7 Sometime later, Galvan’s sister noticed a different partygoer

throwing pieces of food at the sleeping partygoer. When one piece

of food landed on Galvan, he flicked it off himself, and it landed on

the sleeping woman. S.M. and C.M. saw the food hit the sleeping

woman and reinitiated the argument. C.M. then grabbed Galvan by

3 the shirt and said, “Listen, I’m not scared of you. We can fight if

you want. You know, I’ll fight with you. I don’t care.” At that

point, the bus driver intervened, and the fighting again stopped

temporarily.

¶8 After returning to Greeley, the group exited the bus, but the

altercation among Galvan, S.M., and C.M. continued. S.M. testified

that they continued shouting at each other, and Galvan shouted at

S.M. and C.M. that they “were going to get it” and should “watch

[their] backs.” S.M. and C.M. started walking down the street to

their aunt’s house.

¶9 According to S.M., as they walked, Galvan drove slowly by

them shouting “[i]f any of you want this, well, come and get it.”

Then, Galvan stopped his truck, got out, and started running

toward C.M. with his fist cocked, as if ready to punch. Galvan then

punched C.M. in her face, breaking her nose and causing her to

fall. During her fall, C.M. broke her ankle. S.M. then went after

Galvan and the two physically fought.

¶ 10 Galvan’s sister testified differently. As she and Galvan drove

away from the bus, she heard something hit the truck. She

4 believed that C.M. had hit the truck with a bottle, so Galvan

stopped the truck, and the sister got out to see if there was any

damage. While she was checking the truck, S.M. and C.M. came up

behind her and S.M. shoved her. The sister saw C.M. over her

shoulder and then saw a fist. The next thing she knew, C.M. was

on the ground, bleeding from her face. Then S.M. and Galvan

fought. Finally, Galvan and his sister left the scene.

¶ 11 After a police investigation, Galvan was charged with second

degree assault against C.M.; and menacing, criminal attempt to

commit assault in the second degree, and assault in the third

degree against S.M. The jury acquitted Galvan of all charges

against S.M., but convicted him of second degree assault against

C.M.

II. The Court Did Not Err in Instructing the Jury on Self-Defense or the Duty to Retreat

¶ 12 At Galvan’s request, the trial court instructed the jury on the

affirmative defense of self-defense using the Colorado Model

Criminal Jury Instructions. COLJI-Crim. H:11 (2018). But the

court, over Galvan’s objection, also instructed the jury on the

provocation exception to self-defense. Galvan claims this was error

5 because there was no evidence that supported the provocation

exception.

¶ 13 Galvan also raises two additional contentions of error

regarding the self-defense instruction and the related concept of

retreat. First, he argues that the self-defense instruction was

defective because it did not distinguish between the two alleged

victims. Second, he contends that the court improperly rejected his

tendered “no retreat” instruction. We address each of these

contentions in turn.

A. Additional Relevant Facts

¶ 14 As to self-defense, the trial court instructed the jury as follows:

The evidence presented in this case has raised the affirmative defense of “defense of person,” as a defense to Assault In The Second Degree, Criminal Attempt to Commit Assault In The Second Degree, Menacing, and Assault In The Third Degree.

The defendant was legally authorized to use physical force upon another person without first retreating if:

1. he used that physical force in order to defend himself or a third person from what he reasonably believed to be the use or imminent use of unlawful physical force by that other person, and

6 2. he used a degree of force which he reasonably believed to be necessary for that purpose, and

3. he did not, with intent to cause bodily injury or death to another person, provoke the use of unlawful physical force by that other person.

The prosecution has the burden to prove, beyond a reasonable doubt, that the defendant’s conduct was not legally authorized by this defense. In order to meet this burden of proof, the prosecution must disprove, beyond a reasonable doubt, at least one of the above numbered conditions.

....

¶ 15 At the jury instruction conference, Galvan objected to giving

the instruction as written, arguing that there was no evidence of

provocation by him. As to C.M., the prosecutor agreed that there

was no evidence of provocation. The trial court disagreed, stating

that it believed there was some evidence of provocation as to both

alleged victims. Thus, the trial court instructed the jury on

provocation.

¶ 16 Galvan also tendered a separate “no duty to retreat”

instruction and argued that it was necessary because otherwise the

jury might conclude, contrary to established Colorado law, that

7 Galvan had a duty to retreat. The prosecution objected to a

separate no duty to retreat instruction, arguing, successfully, that

the substance of the no duty to retreat instruction was already

encompassed in the model self-defense instruction.

B. The Trial Court Did Not Err in Instructing the Jury on Provocation

1. Judicial Estoppel

¶ 17 Initially, Galvan argues that the Attorney General cannot

argue on appeal that there was any evidence to support the

provocation instruction because, at trial, the prosecutor agreed with

Galvan that there was no evidence of provocation as to C.M.

¶ 18 We take this to be an argument that the Attorney General is

judicially estopped from arguing on appeal that there was sufficient

evidence to support the provocation instruction. Applying the

established law of judicial estoppel, we reject that argument.

¶ 19 Judicial estoppel is a doctrine that “prevents a party from

taking inconsistent positions in related court proceedings with

intent to mislead the court.” Janicek v. Obsideo, LLC,

(Colo. App. 2011). The elements of judicial estoppel are

8 1. The two positions must be taken by the same party (or

parties in privity with each other);

2. the positions must be taken in the same or related

proceedings involving the same parties;

3. the party taking the positions must have been successful in

maintaining the first position and must have received some

benefit in the first proceeding;

4. the inconsistency must be part of an intentional effort to

mislead the court; and

5. the two positions must be totally inconsistent — that is,

the truth of one position must necessarily preclude the

truth of the other.

Arko v. People,

(Colo. 2008) (citing Estate of

Burford v. Burford,

(Colo. 1997)).

¶ 20 For two reasons, the Attorney General is not judicially

estopped from defending the trial court’s decision to instruct the

jury on provocation. First, there is no evidence of an intent to

mislead the court (and Galvan does not argue that there was).

Second, the prosecution did not receive a benefit in the first

9 proceeding based on its position. See Arko,

. 1

Because the judicial estoppel argument fails on two elements, we

need not address the remaining elements.

2. The Standard for Giving a Provocation Instruction

¶ 21 The first question is what quantum of proof is necessary to

authorize an instruction on one of the statutory exceptions to self-

defense. The supreme court has not spoken authoritatively on this

question, although in a recent case it assumed, without deciding,

that the quantum of proof was “some evidence.” Castillo v. People,

. At least two divisions of this court have applied

the same quantum of proof standard. People v. Castillo,

Nor was the prosecutor’s statement a judicial admission. “A judicial admission is a formal, deliberate declaration that a party or his attorney makes in a judicial proceeding for the purpose of dispensing with proof of formal matters . . . .” People v. Curren,

(Colo. App. 2009). Here, the prosecutor was not “dispensing with proof of [a] formal matter[],”

but instead was commenting on the evidence presented at trial for the purposes of crafting a jury instruction. Such a comment does not meet the requirements of a judicial admission.

Evaluating the prosecutor’s statement to the trial court as a concession on the question of whether there was some evidence of provocation, we are not bound by that concession. People v. Backus,

(Colo. App. 1998). 10 140M, ¶¶ 20-21, rev’d on other grounds,

; People v.

Zukowski,

(Colo. App. 2010). Because we agree

with those divisions, we apply that standard here.

¶ 22 “Whether sufficient evidence exists to support the requested

instruction is a question of law that we review de novo.” Castillo,

¶ 32. We view the evidence in the light most favorable to the giving

of the challenged instruction. People v. Silva,

(Colo. App. 1999).

¶ 23 An instruction on provocation is authorized when “1) self-

defense is an issue in the case; 2) the victim makes an initial attack

on the defendant; and 3) the defendant’s conduct or words were

intended to cause the victim to make such attack and provide a

pretext for injuring the victim.”

Thus, for a defendant to forfeit

self-defense under the provocation exception, the defendant must

act with the intent to provoke the victim into attacking first. Id.

3. Whether Colorado Law Requires More Than Words to Justify Giving a Provocation Instruction Need Not Be Decided in This Case

¶ 24 Galvan argues that “mere words are not such provocation as

would eliminate one’s right of self-defense.” People v. Winn, 540

(Colo. App. 1975) (not published pursuant to

C.A.R. 35(f)); see also Silva,

(noting that “insulting

language is not a provoking incident” (citing Bush v. People,

,

(1888))).

¶ 25 No published Colorado case has expressly determined

whether, under Colorado law, words alone are sufficient to support

the giving of a provocation instruction.2 Although Silva stated that

“the defendant’s conduct or words” could justify the giving of a

provocation instruction,

(emphasis added), Silva

did not analyze whether words alone are sufficient to sustain a

provocation instruction. At least one state’s highest court has

determined that under its law, words alone are not enough. State v.

Riley,

(Wash. 1999). We need not decide this

question because, as discussed below, here both words and

conduct supported the provocation instruction.

2 Whether provocation can be proved by words alone or whether there must always be some conduct by the defendant is a matter of Colorado law. Federal constitutional law, however, determines whether particular words may be used to establish provocation consistent with the First Amendment. 12 4. The First Amendment Does Not Prohibit Some of Galvan’s Words From Being Considered as Evidence of Provocation

¶ 26 Galvan next contends that consideration of his words to

support the provocation instruction violates the First Amendment.

¶ 27 The First Amendment of the United States Constitution

provides that “Congress shall make no law . . . abridging the

freedom of speech.” Colorado’s counterpart to the First Amendment

provides that “[n]o law shall be passed impairing the freedom of

speech.” Colo. Const. art. 2, § 10.

¶ 28 We first address whether the First Amendment has any

application in this context. The State did not criminally punish

Galvan because of the words he uttered. But the State has,

nevertheless, regulated his speech through the giving of the

provocation instruction. By using his words (at least in part) to

justify giving an instruction that limits his right to self-defense, the

First Amendment was implicated.

¶ 29 While the First Amendment protects the right to free speech,

its protection is not absolute. Virginia v. Black,

(2003). Some categories of speech, such as “fighting words” and

“true threats” are unprotected by the First Amendment, and the

13 government may permissibly regulate that speech.

;

see also People v. Chase,

, ¶ 68.3

¶ 30 The Supreme Court has defined fighting words as “those

personally abusive epithets which, when addressed to the ordinary

citizen, are, as a matter of common knowledge, inherently likely to

provoke violent reaction.” Black,

(emphasis added)

(quoting Cohen v. California,

(1971)). That is,

fighting words are those “which by their very utterance tend to

incite others to unlawful conduct or provoke retaliatory actions

amounting to a breach of the peace.” People In Interest of R.C.,

(quoting Hansen v. People,

,

(1976)).

¶ 31 The First Amendment permits regulation of such words

because “[i]t has been well observed that such utterances are no

essential part of any exposition of ideas, and are of such slight

social value as a step to truth that any benefit that may be derived

3The Attorney General does not argue that Galvan’s statements constitute true threats, and because we determine that some of his words were fighting words and therefore not protected by the First Amendment, we do not address whether his statements also constituted true threats. 14 from them is clearly outweighed by the social interest in order and

morality.” Chaplinsky v. New Hampshire,

(1942).

However, “[t]he Supreme Court has ‘never held that the government

may, consistent with the First Amendment, regulate or punish

speech that causes emotional injury but does not have a tendency

to provoke an immediate breach of the peace.’” R.C., ¶ 12 (quoting

Purtell v. Mason,

(7th Cir. 2008)).

¶ 32 “[A] defendant’s words are considered as a ‘package’ in

combination with conduct and physical movements, viewed in light

of the surrounding circumstances.”

at ¶ 22 (quoting In re

Welfare of M.A.H.,

(Minn. Ct. App. 1997)).

Thus, whether speech constitutes fighting words must be

determined on a case-by-case basis, considering all the particular

facts and circumstances.

¶ 33 Recently, another division of this court addressed whether a

photograph, which had been altered to add a drawing of male

genitalia close to a juvenile’s face, constituted fighting words. Id. at

¶¶ 3, 7. The division’s majority observed that “speech that

embarrasses or disgraces another is insufficient to qualify as

15 fighting words. Even vulgar and insulting speech that is likely to

arouse animosity or inflame anger, or even to provoke a forceful

response from the other person, is not prohibited.” Id. at ¶ 18.

¶ 34 That R.C.’s conduct “was not accompanied by any hostile,

aggressive, or threatening language or conduct” was also important

to the majority’s analysis. Id. at ¶ 24. The majority held that the

image did not constitute fighting words because “the average person

— even an average fourteen-year-old — would not be expected to fly

into a violent rage upon being shown [such] a photo of himself . . . .

” Id. at ¶ 32.

¶ 35 While we agree with the exposition of law in the majority

opinion in R.C., the circumstances here are factually

distinguishable from those in R.C. Unlike in R.C., Galvan’s words

reasonably could be understood as inviting S.M. and C.M. to “make

such attack and provide a pretext for injuring” C.M. Silva,

. This invitation is encapsulated in the following words and

actions, at least according to some of the testimony:

• During the argument on the bus, in response to S.M.

telling him to stop throwing pieces of food at the sleeping

16 partygoer, Galvan stood up and said, “What the fuck are

you going to do about it bitch?” then “stepped forward”

toward S.M. and C.M., who stood up in response.

• Galvan and his sister got in his truck, but he continued

yelling at S.M. and C.M. that they were “nothing but a

bunch of fat, fucking bitches,” “were going to get it,” and

should “watch [their] backs.”

• As Galvan drove slowly down the street, he yelled: “If any

of you want this, well, come and get it.”

• And then he “all of a sudden stop[ped] his truck,” got out,

and started running toward C.M. with his fist cocked, as

if ready to punch.4

¶ 36 Not all of Galvan’s statements constitute fighting words.5 His

repeated statements that S.M. and C.M. were “big, fat bitches,”

4 Galvan also yelled insults at the sisters, calling them “big, fat bitches” as everyone exited the bus. However, for the reasons explained in the text, those insults do not rise to the level of fighting words. 5 We note that there is no contention that any of Galvan’s

statements constitute political speech. Cf. Village of Skokie v. Nat’l Socialist Party of Am.,

(Ill. 1978) (holding that the display of swastikas during a march through a community

17 though offensive, were not of such character as to incite the sisters

to react violently. However, his invitation for S.M. and C.M. to

“come and get it” was a direct invitation to violence and stands on a

different footing. State v. Bougneit,

(Wis. Ct.

App. 1980), supports our analysis. As in Bougneit, Galvan “invited

[C.M. and S.M.] to fight and, in fact, taunted [them] with fighting

words.”

¶ 37 Unlike R.C., and the cases relied on by the majority there,

Galvan did not merely call S.M. and C.M. names or make offensive

comments. See R.C., ¶¶ 23, 28. He also threatened S.M. and C.M.

by telling them that they should “watch [their] backs,” and then he

invited them to respond with violence by yelling: “If any of you want

this, well, come and get it.” (Emphasis added.)

¶ 38 Also, in contrast to R.C.’s speech, Galvan’s words were uttered

face-to-face with the alleged victims, and were relatively close in

time to the physical altercation between him and C.M. See People

in Interest of R.D.,

, ¶ 19 (holding that because

inhabited by Holocaust survivors did not to amount to “fighting words” but instead was political speech). 18 statements made over the internet were not made face-to-face or in

close physical proximity to the alleged victim, the statements did

not constitute fighting words) (cert. granted Sept. 5, 2017).

¶ 39 The timing of Galvan’s statements is important because one

factor in determining if words are fighting words is whether they

“tend[] to provoke an immediate breach of the peace.” 6 R.C., ¶ 12

(emphasis added). The evidence presented at trial showed that, at

least, Galvan’s statements made after the group exited the party

bus — that C.M. and S.M. should “watch [their] backs,” “were going

to get it,” and should “come and get it” — were in close temporal

proximity to the physical altercation between C.M. and Galvan.

¶ 40 These specific words, taken in context and “in combination

with [Galvan’s] conduct and physical movements,”

at ¶ 22

(quoting M.A.H.,

), were “inherently likely to

provoke a violent reaction.” R.D., ¶ 17 (quoting People in Interest of

K.W.,

). We conclude that these words were

fighting words and thus are not protected by the First Amendment.

6The record is unclear regarding precisely how much time passed between when the group exited the party bus and when the physical altercation between Galvan and C.M. occurred. 19 Therefore, these words could properly be considered in determining

whether some evidence supported the provocation instruction.

5. At Least Some Evidence Supported Giving the Provocation Instruction

¶ 41 Viewing the evidence in a light most favorable to giving the

provocation instruction, Silva,

, we conclude that

there was at least some evidence that Galvan provoked C.M. See

Zukowski,

. Based on the evidence presented, a

reasonable juror could have found that Galvan’s actions and

statements, discussed above, were intended to give him an excuse

to physically harm C.M. 7 Therefore, the trial court did not err in

instructing the jury on the provocation exception.

C. The Trial Court Did Not Abuse Its Discretion by Declining to Give A More Specific Provocation Instruction

¶ 42 Galvan also contends that the provocation instruction was

defective because it did not specify to which victim it applied. We

disagree.

7 We emphasize that it is for the jury to determine whether Galvan in fact provoked C.M., not the trial court or this court. The trial court’s role is that of gatekeeper, which is why the quantum of proof to authorize the provocation instruction is low. 20 ¶ 43 To begin, the instruction tracked the language of the statute.

“An instruction that tracks the language of the statute, as this one

did, is generally sufficient.” People v. Archuleta,

, ¶ 52.

It also tracked the language of the Colorado Model Criminal Jury

Instructions. See COLJI-Crim. H:11 (2018).

¶ 44 Galvan argues that “if the jury concluded that Mr. Galvan did

not act in self-defense with respect to S.M. because he allegedly

provoked her, it could have applied that finding to the second

degree assault offense against C.M.” To the extent we understand

his argument, we reject it.

¶ 45 The provocation instruction stated that Galvan did not act in

self-defense if “with intent to cause bodily injury or death to another

person, [he] provoke[d] the use of unlawful physical force by that

other person.” (Emphasis added.) The plain language of the

instruction itself made clear that for Galvan to forfeit the affirmative

defense of self-defense, he had to have provoked the person as to

whom he was asserting self-defense.

¶ 46 “Jury instructions must be read as a whole, and if, when so

read, they adequately inform the jury of the law, there is no

21 reversible error.” People v. Vanrees,

(Colo.

2005). Coupled with the other instructions that correctly informed

the jury that it had to decide the affirmative defense of self-defense

based on the totality of the circumstances, and that each crime

charged was subject to the defense of self-defense, the self-defense

instruction adequately and correctly instructed the jury on the

applicable law. See

Moreover, the jury was instructed to

consider each charge separately and not let its decision on one

charge influence its decision on the others. We presume the jury

followed that instruction. See People v. Phillips,

(Colo. App. 2004) (“It is presumed the jury understood and heeded

the trial court’s instructions.”).

D. The Trial Court Did Not Abuse Its Discretion by Declining to Give a Separate No Duty to Retreat Instruction

¶ 47 Galvan next contends that the trial court abused its discretion

in refusing to give his tendered instruction on “no duty to retreat.”

We disagree.

¶ 48 “We review de novo whether a jury instruction states the law

correctly, and we review the trial court’s decision to give a particular

22 jury instruction for an abuse of discretion.” Walker v. Ford Motor

Co.,

.

¶ 49 “The trial court must tailor the self-defense instructions to the

particular circumstances of the case in order to adequately apprise

the jury of the law of self-defense from the standpoint of the

defendant.” Cassels v. People,

(Colo. 2004). “In

cases where the jury could reasonably conclude that the defendant

had a duty to retreat before using force in self-defense, the

defendant may be entitled to a self-defense instruction tailored to

address the issue of retreat.”

Still, a court may refuse an

instruction that states principles already encompassed elsewhere in

the court’s instructions. People v. Tweedy,

(Colo. App. 2005).

¶ 50 The jury was instructed that Galvan “was legally authorized to

use physical force upon another person without first retreating . . . .”

(Emphasis added.) The instruction containing the “no retreat”

language tracked the language of the model jury instruction.

COLJI-Crim. H:11 (2018); see also People v. Grenier,

,

23 1080 (Colo. App. 2008) (finding no error where the jury instruction

tracked the language of the model jury instruction).

¶ 51 Cassels,

, and Idrogo v. People,

(Colo. 1991), are distinguishable because in those cases, none of the

jury instructions told the jury that the defendant did not have a

duty to retreat. Both of those cases were decided before the model

jury instructions specifically addressed the “no duty to retreat”

principle embedded in Colorado law. Thus, when the court stated

in Cassels that “a standard self-defense instruction does not

adequately apprise the jury that a defendant who is not the initial

aggressor does not need to retreat before using force in self-

defense,”

, the court was assessing instructions that

did not address the duty to retreat. The model jury instruction

given in this case addresses that principle of law and, consequently,

the jury was correctly instructed.

¶ 52 For these reasons, the trial court did not abuse its discretion

by failing to give Galvan’s tendered no duty to retreat instruction.

24 III. The Prosecutor’s Statements Regarding the Victims’ Rights to a Fair Trial Were Harmless

¶ 53 Finally, Galvan argues that the trial court erred by allowing

the prosecutor to suggest to potential jurors that the alleged victims

had rights to a fair trial that were equal to Galvan’s constitutional

rights to due process and a fair trial.

A. Additional Facts

¶ 54 During voir dire, the prosecutor had the following colloquy

with Jurors 2, 4, and 12:

[PROSECUTOR]: Juror Number 2. I’m going to switch gears again. So the judge talked about the right to a fair trial. And, of course, we know that the defendant has a right to a fair trial. Part of that is the presumption of innocence. My question, though, is what about the victim’s right to a fair trial? What do you think about that?

JUROR NUMBER 2: I think it’s important that they --

(Emphasis added.) Galvan’s counsel objected, and the court

overruled the objection. The potential juror continued:

JUROR NUMBER 2: I think the victim has a right to have the -- all the facts put out and the correct conclusions found by the jury.

25 ¶ 55 Later, the prosecutor again asked about the victims’ rights to a

fair trial.

[PROSECUTOR]: Juror Number 4. I want to come back to this right of a fair trial. And, you know, the defendant is going to sit before you for the next few days, there’s not going to be a victim sitting at my table or even in the courtroom. What [are] your thoughts of the victim’s right to a fair trial?

(Emphasis added.) Galvan’s counsel again objected, and the court

again overruled the objection. The potential juror then answered:

JUROR NUMBER 4: They deserve a fair trial, as well, and have their side heard.

¶ 56 Sometime later, in speaking with Juror 12, the prosecutor

said:

[PROSECUTOR]: I realize this has now kind of drug [sic] on for a while, so I don’t want to repeat myself. I just want to know if you have any thoughts on — we’ve talked about several issues; alcohol consumption, the victim’s right to a fair trial, the issue of man versus woman in self-defense, any of those issues. Do you have any specific thoughts that you think we should all be aware of?

JUROR NUMBER 12: No, I don’t.

(Emphasis added.) Jurors 4 and 12 served on Galvan’s jury.

26 B. Standard of Review and Applicable Law

¶ 57 Our review of a claim of prosecutorial misconduct involves a

two-step analysis. Wend v. People,

(Colo.

2010). First, we determine whether the conduct at issue was

improper based on the totality of the circumstances.

If we

determine there was misconduct, we next determine whether the

misconduct warrants reversal under the applicable standard of

reversal.

¶ 58 In determining whether prosecutorial misconduct has

occurred, “[t]he context in which [the] challenged prosecutorial

remarks are made is significant.” People v. Krueger,

(quoting People v. Santana,

, 1133 n.5 (Colo.

2011)). A prosecutor engages in prosecutorial misconduct during

voir dire when she misstates the law or “intentionally use[s] the voir

dire to present factual matter which the prosecutor knows will not

be admissible at trial or to argue the prosecution’s case to the jury.”

People v. Adams,

(Colo. App. 1985) (emphasis

omitted) (quoting I ABA Standards for Criminal Justice § 3-5.3(c)

(2d ed. 1980)).

27 C. A Prosecutor May Not State or Imply that a Victim’s Rights are Equal to the Rights of the Criminal Defendant

¶ 59 Although no Colorado court has addressed whether a

prosecutor may properly suggest to a jury venire that a victim’s

rights under the Colorado Constitution, Colo. Const. art. 2, § 16a,

and sections 24-4.1-301 to -303, C.R.S. 2018, are equal to those of

a criminal defendant, courts in other states have addressed this

question under those states’ laws.

¶ 60 For example, the Arizona Supreme Court concluded that “[i]t

cannot be doubted that victims of crime, and their families, have

certain rights. It is equally clear, however, that these rights do not,

and cannot, conflict with a defendant’s right to a fair trial.” State v.

Bible,

(Ariz. 1993) (citations omitted).

Similarly, the New Mexico Court of Appeals held, in addressing

claims of prosecutorial misconduct, that “[p]rosecutors should not

suggest that a victim’s rights . . . can outweigh a defendant’s

28 constitutional rights.” State v. Dombos,

(N.M. Ct.

App. 2008). 8

¶ 61 We agree with these courts. Although the alleged victims in

this case have certain constitutional and statutory rights, Colo.

Const. art. 2, § 16a; §§ 24-4.1-301 to -303, those rights do not rise

to the same level and cannot conflict with Galvan’s constitutional

rights to due process and a fair trial under the United States

Constitution. U.S. Const. amends. V, VI.

8 Still other courts have addressed (in a more cursory manner) circumstances where the prosecutor made a comparison between the rights of the victim and the rights of the criminal defendant. All of these courts found the comments improper, yet concluded reversal was not required. See McNair v. State,

(Ala. Crim. App. 1992) (holding that despite the fact that “[t]he prosecutor made numerous references to the victim’s rights and several times implied that her rights were to be weighed against the [defendant’s],” the error was not reversible); Jennings v. State,

(Fla. 1984) (concluding that it was improper for the prosecutor to “compare[ the defendant’s] right to use the telephone to call an attorney during his interrogation and the victim’s right to live”), vacated on other grounds,

(1985); State v. Marshall,

(N.J. 1991) (holding that the prosecutor’s comment that the victim “had a right to live her life in full” was harmless beyond a reasonable doubt); Bell v. State,

(Tex. Crim. App. 1986) (concluding that the error in allowing the prosecutor’s comment on the victims’ constitutional rights was not reversible). 29 ¶ 62 The prosecutor never explicitly stated that the alleged victims’

rights were equal to or greater than Galvan’s. But, to the extent the

prosecutor’s statements implied such an equivalence, the

prosecutor should not have made, and the trial court should not

have permitted, such statements.

D. Any Error Was Harmless

¶ 63 Even if a fair inference of the prosecutor’s remarks was that

the victims’ rights were equal to, or in conflict with, Galvan’s rights,

any error was harmless. The jury was properly instructed regarding

Galvan’s constitutional right to a fair trial, and on the presumption

of innocence. The trial court gave no instruction regarding the

alleged victims’ rights to a fair trial. Nor did the prosecutor mention

the alleged victims’ rights again during trial. So, the prosecutor’s

statements, if improper, did not “substantially influence[] the

verdict or affect[] the fairness of the trial proceedings.” Hagos v.

People,

, ¶ 12 (quoting Tevlin v. People,

(Colo. 1986)); see also Bible,

(determining

that the prosecutor’s statements equating the victim’s rights with

the defendant’s were not “fundamental error”).

30 ¶ 64 Moreover, the split verdicts in this case demonstrate that the

jury followed the court’s instructions, which, as noted, correctly

instructed the jury regarding Galvan’s constitutional rights.

IV. Conclusion

¶ 65 The judgment is affirmed.

JUDGE TAUBMAN and JUDGE TOW concur.

31