Peo v. Priest
Peo v. Priest
Peo v. Priest
Opinion
21CA2104 Peo v Priest 08-01-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA2104
Jefferson County District Court No. 20CR3274
Honorable Jason Carrithers, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Clinton Eugene Priest,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE NAVARRO
Pawar and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 1, 2024
Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1 Defendant, Clinton Eugene Priest, appeals the judgment of
conviction imposed on jury verdicts finding him guilty of second
degree murder and first degree assault. We reverse and remand for
a new trial.
I. Factual and Procedural History
¶ 2 On September 23, 2020, Priest and the decedent, Robert
Miller, were drinking at a bar. They interacted to some extent and
then both left when the bar closed. Both men went out the back of
the bar to a parking lot.
¶ 3 When the bartender left a little while later, he found Miller
lying on the ground with blood on him. Miller subsequently died
from blood loss due to a stab wound to his bicep.
¶ 4 After leaving the bar, Priest went home, where his son called
911. Officers and paramedics arrived at Priest’s home, and he
claimed he had been attacked and injured at the bar. Paramedics
transported him to the hospital, where he was medically cleared,
and officers took him to the police station, where they later arrested
him.
¶ 5 The prosecution charged Priest with second degree murder,
four counts of possession of a weapon by a previous offender
2
(POWPO), and two crime of violence sentence enhancers.
1
At trial,
Priest did not testify but asserted, through counsel, that he acted in
self-defense. As noted, the jury found him guilty of second degree
murder and first degree assault.
2
¶ 6 On appeal, Priest raises multiple contentions in support of his
request for reversal of the judgment. We agree with him that the
trial court erred by instructing the jury on unsupported exceptions
to self-defense. Accordingly, we reverse without the need to reach
his other claims.
II. Instructions on Self-defense Exceptions
¶ 7 Because insufficient evidence supported the instructions on
the provocation and initial aggressor exceptions to self-defense,
Priest is right that the trial court should not have given those
instructions.
1
The prosecution later added one count of first degree assault, one
count of second degree assault, and two additional crime of violence
enhancers. The prosecution received permission to dismiss two
POWPO counts. The prosecution planned to try the remaining
POWPO counts in a bifurcated trial depending on the verdict on the
murder charge.
2
Following the verdict, the prosecution successfully moved to
dismiss the remaining counts.
3
A. Standard of Review and Preservation
¶ 8 We review de novo whether sufficient evidence exists to
support a requested instruction. Castillo v. People, 2018 CO 62,
¶ 32. Because Priest objected to the prosecution’s request for the
instructions on the exceptions to self-defense, we review any error
for harmless error. See id. at ¶ 56. Therefore, we must reverse if
an error substantially influenced the verdict or affected the fairness
of the trial. See id. at ¶ 57.
B. Relevant Law
¶ 9 As pertinent here, Colorado’s self-defense statute provides that
“a person is justified in using physical force upon another person in
order to defend himself or a third person from what he reasonably
believes to be the use or imminent use of unlawful physical force by
that other person.” § 18-1-704(1), C.R.S. 2023. But there are
exceptions to this affirmative defense. Two were presented to the
jury in this case: the initial aggressor and provocation exceptions.
¶ 10 Under the initial aggressor exception, a person is not justified
in using physical force if
[h]e or she is the initial aggressor; except that
his or her use of physical force upon another
person under the circumstances is justifiable if
4
he or she withdraws from the encounter and
effectively communicates to the other person
his or her intent to do so, but the latter
nevertheless continues or threatens the use of
unlawful physical force.
§ 18-1-704(3)(b). An initial aggressor is someone who “initiated the
physical conflict by using or threatening the imminent use of
unlawful physical force.” Castillo, ¶ 41 (citation omitted).
¶ 11 Under the provocation exception, a person is not justified in
using physical force if, “[w]ith intent to cause bodily injury or death
to another person, he provokes the use of unlawful physical force
by that other person.” § 18-1-704(3)(a). Therefore, a defendant
forfeits self-defense as an affirmative defense if (1) the other person
uses unlawful physical force against the defendant; (2) the
defendant provoked the use of such physical force by the other
person; and (3) the defendant intended to goad the other person
into attacking in order to provide a pretext to injure or kill that
person. Galvan v. People, 2020 CO 82, ¶ 19.
¶ 12 When a court instructs the jury on the affirmative defense of
self-defense, “it should instruct the jury on the provocation
exception or any other exception to that defense if the exception is
supported by some evidence.” Id. at ¶ 25. “To qualify as ‘some
5
evidence,’ the evidence must be such as would support a
reasonable inference that the accused was the initial aggressor or
provoked the other person into attacking (or appearing to attack)
him.” People v. Roberts-Bicking, 2021 COA 12, ¶ 31.
C. Additional Facts
¶ 13 The prosecutor did not object to Priest’s request for an
instruction on self-defense on the ground that the evidence did not
support it. Instead, the prosecutor objected to a self-defense
instruction that did not include the identified exceptions. When the
prosecutor requested instructions on the initial aggressor and
provocation exceptions, however, the prosecutor did not point to
specific evidence supporting them. Defense counsel objected to
instructions on those exceptions, arguing that the evidence did not
support giving either exception.
¶ 14 The trial court agreed with the prosecutor that the evidence
supported instructions on the self-defense exceptions, explaining as
follows:
I think the evidence presented thus far shows
an interaction where Mr. Priest and Mr. Miller
left the bar together. They walked down the
driveway to the back parking lot. A person,
reasonably concluded as Mr. Priest, got into a
6
vehicle, started to drive, stopped, got out of the
vehicle, some sort of altercation occurs.
Someone gets back in the vehicle, again, still
presumably Mr. Priest, and drives off.
The court so instructed the jury.
D. Application
1. The Trial Court Erred
¶ 15 As noted, the prosecution during trial did not point to specific
evidence supporting the instructions on the exceptions to self-
defense. On appeal, the People point only to a surveillance video in
support of those instructions. The unenhanced surveillance video
shows a view from a parking lot next door to the bar. The parking
lot is depicted in the upper right-hand corner of the video and is
very dark. The altercation is barely visible. All that is clearly
discernible on the video is a car being turned on, someone standing
in front of the car, the car starting to move then stopping, some
shadows during a fight, and the car driving off. Even the
forensically enhanced videos show little more than that.
¶ 16 The People highlight that Priest relied on that video to “craft a
narrative about the fight and argue he acted in self-defense.”
Because that video shows little of how the altercation transpired,
7
the People assert that it must necessarily support the inference that
Priest was the initial aggressor or provocateur when he got out of
the car. The People’s argument hinges on the notion that, because
the video shows very little definitively, it is at least “as supportive of
provocation and initial aggressor as self-defense”; therefore, the
court needed to instruct the jury on all three concepts.
¶ 17 This argument, however, misconstrues the proper analysis.
The question before us is not whether the jury should have been
instructed on self-defense. As noted, the prosecutor did not argue
below that the evidence was insufficient to support Priest’s self-
defense claim. And the People on appeal do not make this
argument as an alternative ground to affirm the judgment.
¶ 18 Thus, even if the evidence supporting self-defense were weak,
that is immaterial to this appeal.
3
The only question before us on
this issue is whether some evidence supported instructing the jury
on the exceptions to self-defense. So we must decide whether the
video, and other admitted evidence, created a reasonable inference
3
We note that other evidence besides the video supported Priest’s
self-defense claim because he told police officers that he had been
attacked from behind and there was some physical evidence from
the incident.
8
that Priest either acted as the initial aggressor or provoked Miller
into attacking him.
¶ 19 We see no evidence that supports such an inference. The
video itself is quite dark and does not show who instigated the fight,
what words might have been exchanged, what gestures might have
been made, or anything that could suggest that either exception
applies. And the enhanced videos show only some additional
shadows and movement. Although one can see Priest’s car stop
and his getting out of the car, that alone is insufficient to support
the exceptions. See Castillo, ¶ 53 (concluding that a defendant
popping the trunk and getting out of a car was insufficient on its
own to justify instructing the jury on the initial aggressor
exception). The video and its enhancements, without more, do not
show provocation or that Priest was the initial aggressor. And no
other evidence was presented at trial that could support giving the
instructions. Even considering the evidence in the light most
favorable to giving the challenged instructions, the evidence is
insufficient. Cf. Roberts-Bicking, ¶¶ 36, 40 (concluding that
evidence the defendant produced a pistol during an argument
warranted an instruction on the initial aggressor exception and that
9
the defendant’s statements in a police interview were sufficient to
instruct the jury on the provocation exception). Consequently, the
trial court erred by giving the jury instructions on the provocation
and initial aggressor exceptions to self-defense.
2. Harmlessness
¶ 20 We must then decide whether the error was harmless. We
note that the People do not argue that the error was harmless. And
we conclude that it was not.
¶ 21 Our supreme court has decided that a superfluous instruction
on a self-defense exception could prejudice a defendant because the
jury “is likely to try to fit facts into an erroneously given instruction”
even if the evidence does not support it. Castillo, ¶ 61. The
supreme court has noted, however, that something more is
necessary to transform a “possibility of prejudice” into “something
that substantially influenced the verdict” or affected the fairness of
the trial. Id. at ¶ 62. The something more could be the
prosecution’s reliance on the erroneous instruction. See id.
¶ 22 Here, Priest’s only defense was self-defense, so it was integral
to the trial. The erroneous exceptions instructions, therefore, had
strong potential to undermine his defense. And the prosecution
10
relied heavily on the initial aggressor exception during closing
argument, explicitly referring multiple times to Priest as the initial
aggressor and “the one who instigated this.” This reliance on the
erroneous instruction substantially influenced the verdict. See id.
at ¶ 66 (“Given the superfluous jury instruction and the statements
by the prosecution, we conclude that the trial court’s erroneous
decision to give the initial aggressor jury instruction substantially
influenced the verdict or affected the fairness of the trial
proceedings.”).
¶ 23 Although we acknowledge that the prosecutor did not rely on
the provocation exception during closing, the prejudice created by
the initial aggressor instruction is sufficient to require reversal.
Accordingly, we reverse the judgment and remand for a new trial.
III. Priest’s Other Contentions
¶ 24 We decline to address Priest’s remaining contentions because
they involve facts specific to how the trial unfolded, they depend on
the particular evidence and arguments presented (especially as to
any possible prejudice to Priest), and some were not preserved for
our review. Because they “may not occur on retrial under the same
circumstances, if at all, we do not address them.” Bullington v.
11
Barela, 2024 COA 56, ¶ 30. Addressing them now would result in
an advisory opinion based on supposition about how the new trial
will unfold, which risks improperly depriving the parties of their
prerogative to litigate the case as they choose. See People v. Becker,
(Colo. 1985) (“Axiomatic to the exercise of judicial authority is the
principle that a court should not decide a constitutional issue
unless and until such issue is actually raised by a party to the
controversy and the necessity for such decision is clear and
inescapable.”).
¶ 25 Our decision not to address those issues, however, should not
be construed as reflecting any opinion on the merits of the issues.
See Becker, ¶ 30.
IV. Conclusion
¶ 26 The judgment is reversed, and the case is remanded with
directions.
JUDGE PAWAR and JUDGE JOHNSON concur.
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