DENVER–In a June 29 ruling the Colorado Supreme Court threw out the conviction of a woman who stabbed a man in the neck during an altercation and ordered a new trial due to prosecutorial misconduct, as well as reaffirmed Colorado’s “no duty to retreat” rule, which, as Justice Hood wrote in the state high court’s decision, “permits non-aggressors to stand their ground when acting in self-defense.”
Sheila Monroe was convicted of attempted first-degree murder, first-degree assault and five habitual criminal charges and sentenced to 98 years in prison after she was tried for stabbing James Faulkenberry on the #16 Colfax Avenue RTD bus in Denver in October, 2011.
Monroe claimed self defense in the stabbing, saying after a heated argument with Faulkenberry he suddenly withdrew something from inside his coat that Monroe thought was a weapon. She immediately stabbed him in the neck with a pocket knife. Faulkenberry survived the attack.
At trial the prosecution tried to impeach Monroe’s self defense argument by saying that Monroe’s failure to retreat, even though she could have done so, showed that she wasn’t really in fear of death or serious bodily harm.
State law says that in order to use deadly force a person must have a “reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury.”
Her failure to retreat in spite of the ability to do so, said the prosecutor, indicated that she didn’t really think her life was in danger, thus negating her right to use deadly force in self defense by implying that any reasonable person would have first retreated. This opinion was repeated several times during the prosecution’s closing argument.
The Colorado Court of Appeals rejected this argument and overturned the conviction. The State appealed to the Colorado Supreme Court, which in a 5-2 vote upheld the Appeals Court judgment and remanded the case for a new trial, saying that the prosecutor’s repeated attempts to persuade the jury that Monroe did not have legal justification to use deadly force was prosecutorial misconduct because it might have caused the jury to convict Monroe merely because she did not retreat.
“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,” writes Justice Hood. “The only inferences a jury could draw from that line of argument are that, if retreat was possible but not pursued, a defendant must not have acted reasonably by using force or must not have actually perceived a threat, since she would have fled if she had.”
The high court also admonished the trial court for allowing the improper arguments to be considered by the jury.
“In light of our decision today categorically prohibiting argument regarding a defendant’s failure to retreat, all five of the prosecution’s statements regarding Monroe’s failure to retreat were improper. Accordingly, the trial court abused its discretion by permitting their admission,” continued Hood.
Justice Hood pointed out that it is a fact of human behavior that people respond differently to threats. Some people flee, some people freeze and some people fight.
Hood said the prosecutor’s argument is “premised on a faulty assumption, since not all individuals facing a threat respond by fleeing.”
Quoting a scholarly paper by Karin Roelofs, Professor of Experimental Psychopathology at the Behavioural Science Institute at Radbout University in the Netherlands, Hood writes, “(“In stressful situations, . . . most people tend to fall back on primary ‘freeze—fight—flight’ tendencies and have great difficulty controlling their actions or shifting flexibly between passive freezing and active fight-or-flight.”). Thus, 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.”
The Court voided the conviction and remanded the case for a new trial. There is no word yet whether the State will retry Monroe.