People v. Roberts-Bicking

490 P.3d 1128

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Philo ROBERTS-BICKING, Defendant-Appellant.

Court of Appeals No. 17CA1396

Colorado Court of Appeals, Division I.

Announced February 11, 2021

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE TOW

¶ 1 Defendant, Philo Roberts-Bicking, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempted second degree murder, first degree assault, and menacing. To resolve his appeal, we must determine whether the trial court, when instructing the jury regarding Roberts-Bicking's claim of self-defense, was required to specifically instruct them on principles regarding multiple assailants or apparent necessity. We must also address whether a jury must unanimously agree on which exception to self-defense the prosecution has proven.

¶ 2 We conclude that the instructions here sufficiently informed the jury regarding all applicable principles of self-defense — and only those principles applicable to this case — including the jury's obligation to consider the totality of the circumstances. We further conclude, disagreeing with another division of this court in People v. Mosely , 2019 COA 143, ¶¶ 19-21, 487 P.3d 1157 (cert. granted Mar. 30, 2020), that a jury need not unanimously agree on which self-defense exception the prosecution proved. Accordingly, we affirm the judgment.

I. Background

¶ 3 During an altercation, Roberts-Bicking shot Ricardo Thurmond¹ six times with a pistol, injuring him, and hit Ricardo's brother, Terry, over the head with the pistol. The prosecution charged Roberts-Bicking with attempted first degree murder and first degree assault as to Ricardo and menacing as to Terry. The issue at trial was whether Roberts-Bicking acted in self-defense.

¶ 4 According to the prosecution's evidence, Terry agreed to let Roberts-Bicking become his roommate. In May 2015, the two disagreed over (1) rental payments Terry felt were owed him and (2) Roberts-Bicking keeping a gun in his bedroom area² against Terry's wishes. Terry gave Roberts-Bicking a month to move out.

¶ 5 In June 2015, Terry reiterated his demand that Roberts-Bicking vacate the premises and told Roberts-Bicking to leave the key on the table. On the night before the incident at issue, Terry sent text messages reiterating that Roberts-Bicking needed to leave the apartment. Roberts-Bicking did not respond to those messages.

¶ 6 On the morning of the shooting, at approximately 5:30 a.m., Terry entered Roberts-Bicking's bedroom area, demanding the key to the apartment. Roberts-Bicking refused, saying, "You're going to have to call the police to get this key." Ricardo, having heard Roberts-Bicking and Terry talking, entered Roberts-Bicking's bedroom area and also demanded the key.

¶ 7 What happened next was disputed at trial.

¶ 8 According to Terry and Ricardo, neither of the brothers threatened Roberts-Bicking, had any objects in their hands, or raised their voices. After hearing Terry and Roberts-Bicking talking, Ricardo joined Terry, tapped a piece of wood near the foot of the bed, and said, "He wants you out, it's his house." Roberts-Bicking then "rose up out of the bed, show[ed] a pistol, and said, ‘You motherfuckers will die,’ and started firing." Roberts-Bicking shot Ricardo six times. Roberts-Bicking then beat Terry in his head with the pistol and choked him, while using a racial epithet and saying, "You ... fucked with the wrong guy," and "you will die." Terry threw Roberts-Bicking off him and fled the apartment.

¶ 9 Roberts-Bicking did not testify at trial. He had, however, given the police a statement that was later admitted into evidence at trial. In that statement, Roberts-Bicking said that both of the Thurmond brothers had previously threatened to physically harm him.³ On that morning, Terry entered his bedroom area, looking for the key on the dresser and knocking his belongings to the floor. Terry had an object in his hand.⁴ Ricardo had then entered the room, saying, "We aren't fucking around," grabbed his feet through the blanket, and pulled the blanket off him. Roberts-Bicking "had no idea" what the brothers were going to do; he knew the brothers were "attacking him," though they had not "put physical hands on him." He pulled out his pistol, pointed it at Ricardo, and said, "You want to fuck with me, try it." When the brothers "moved towards" him, he "opened fire" on Ricardo. After emptying his pistol and "[not knowing] what to do," Roberts-Bicking "start[ed] punching [Terry] ... in the face as hard as [he] could" with the pistol until Terry got free and ran off.

¶ 10 The jury acquitted Roberts-Bicking of attempted first degree murder but convicted him of attempted second degree murder and first degree assault (as to Ricardo) and menacing (as to Terry).

¶ 11 Roberts-Bicking now appeals. On appeal, he contends that reversal is required because of four instructional errors related to his defense of self-defense. Specifically, Roberts-Bicking argues that the trial court erred by (1) failing to give an instruction regarding multiple assailants and apparent necessity; (2) giving an initial aggressor instruction; (3) giving a provocation instruction; and (4) failing to instruct the jury that if it rejected self-defense on the basis of a self-defense exception, it could only rely on one exception and thus must unanimously agree either that Roberts-Bicking was the initial aggressor or that he provoked the brothers into attacking him. We address, and reject, each contention in turn.

II. The Lack of a Multiple Assailants or Apparent Necessity Instruction

¶ 12 Roberts-Bicking contends that the trial court reversibly erred in rejecting proposed self-defense instructions on apparent necessity and defense against multiple assailants. We disagree.

A. Additional Facts

¶ 13 During the jury instruction conference, defense counsel requested, but the trial court did not give, the following "multiple assailants" instruction:

[I]n determining the reasonableness of Mr. Roberts-Bicking's beliefs and actions, you must consider the totality of the circumstances, which includes the number of people who reasonably appeared to be threatening Mr. Roberts-Bicking.

¶ 14 Defense counsel also requested, but the trial court did not give, the following "apparent necessity" instruction:

A person is allowed to act on the appearance of a threat, so long as it is reasonable, even if he turns out to be wrong about the threat.

When a person has reasonable grounds for believing, and does actually believe, that danger of bodily injury is imminent, he may act on such appearances and defend himself. A person may act on such appearances, although the appearances turn out to be false, or although he may have been mistaken as to the extent of the actual danger.

Apparent necessity, if well-grounded and of such a character as to appeal to a reasonable person under similar conditions and circumstances, as being sufficient to require action, justifies the application of self-defense to the same extent as actual or real danger.

¶ 15 Instead, consistent with the model jury instructions, see COLJI-Crim. H:11 (2019), and section 18-1-704, C.R.S. 2020, the court instructed as follows:

Mr. Roberts-Bicking 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

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.

4. he was not the initial aggressor, or, if he was the initial aggressor, he had withdrawn from the encounter and effectively communicated to the other person his intent to do so, and the other person nevertheless continued or threatened the use of unlawful physical force.

The prosecution has the burden to prove, beyond a reasonable doubt, that Mr. Roberts-Bicking'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.

¶ 16 During deliberations, the jury submitted a question regarding the meaning of the phrase "he reasonably believed" as used in the instructions: "[I]s it what he believed to be reasonable or what we believe to be reasonable — more info please." Roberts-Bicking's counsel reiterated the request for the previously tendered multiple assailant and apparent necessity instructions. Instead, the court responded,

Ladies and Gentleman of the jury[,] in determining the reasonableness of Mr. Roberts-Bicking's beliefs and actions, you are instructed that you are to apply an objective standard based on what a reasonable person in Mr. Roberts-Bicking's situation would have believed or done under those circumstances. In making this determination, you are to consider the totality of the circumstances shown by the evidence.

B. Standard of Review and Applicable Law

¶ 17 The trial court has a duty to instruct the jury correctly on all matters of law. People v. Knapp , 2020 COA 107, ¶ 20, 487 P.3d 1243. We review jury instructions de novo to determine if they correctly informed the jury of the applicable law. People v. Luna , 2020 COA 123M, ¶ 8, 474 P.3d 230. However, if the jury was adequately instructed on the law, we review for abuse of discretion a trial court's decision whether to give a particular instruction and we "will not disturb the ruling unless it is manifestly arbitrary, unreasonable, or unfair." People v. Trujillo , 2018 COA 12, ¶ 11, 433 P.3d...