invited error in Colorado

2025See People v. Rediger, 2018 CO 32, ¶ 34 (“The doctrine of invited error prevents a party from complaining on appeal of an error that he or she has invited or injected into the case . . . .”); People v. Zapata, 779 P.2d 1307, 1307 (Colo. 1989) (holding that invited error bars review of defense-tendered jury instruction). ¶ 54 Stokes also contends that, because there was a “single act of self-defense,” there was no basis for the jury to find that he was justified in using deadly force but not nondeadly force.

2025See Phillips v. People, 2019 CO 72, ¶ 16 (waiver requires an “intentional relinquishment of a known right or privilege.”); People v. 5 Zapata, 779 P.2d 1307, 1309 (Colo. 1989) (the doctrine of invited error applies when a party has invited or injected the error into the case). ¶ 16 Under the circumstances here, we are not persuaded that Baldwin intentionally relinquished a known right or injected the alleged error into the case by raising only a limited objection to the court’s proposed response.

2025We disagree. ¶ 69 “The doctrine of invited error captures the principle that ‘a party may not complain on appeal of an error that he has invited or injected into the case; he must abide by the consequences of his acts.’” Horton v. Suthers, 43 P.3d 611, 618 (Colo. 2002) (citation omitted).

2025See Horton, 43 P.3d at 619 ; Brown, ¶ 10; see also City of West Palm Beach v. Visionair, Inc., 199 F. App’x 768 , 770 n.1 (11th Cir. 2006) (“The doctrine of invited error does not preclude parties from making alternative arguments.”). ¶ 71 We therefore conclude this issue is preserved. c.

2025But rather than resolving the issue solely on the defendant’s failure to tender a self-defense instruction, the division concluded that the failure appeared to be a strategic choice and held that “[w]hen the defense makes a tactical decision not to submit an alternative defense instruction, a trial court’s failure to sua sponte offer the instruction does not constitute error, much less plain error.” Id. at ¶ 16 . 21 ¶ 48 The Wade division’s application of the holding in Lee is consistent with Stewart because the supreme court there cabined its ruling to nontactical instructional omissions, hol

2025Where, however, the omission is strategic, the invited error doctrine should be invoked.” People v. Stewart, 55 P.3d 107, 119 (Colo. 2002). 26 ¶ 57 While my colleagues and I are, of course, bound to follow the supreme court’s pronouncements, I do not consider Stewart to be dispositive of this issue.

2026The doctrine of invited error 9 prevents a party from “complaining on appeal of an error that [the party] invited or injected into the case; the party must abide [by] the consequences of [their] acts.” People v. Rediger, 2018 CO 32, ¶ 34 ; see People v. Becker, 2014 COA 36, ¶ 20 (The doctrine typically “precludes appellate review of alleged errors that were invited by a party’s affirmative conduct.”). ¶ 18 Here, the prosecutor misadvised the district court that there was only one available trial date before the speedy trial deadline and that date was the following week.

2026See People v. Rediger, 2018 CO 32, ¶ 34 (“The doctrine of invited error prevents a party from complaining on appeal of an error that he or she has invited or injected into the case . . . .”). 28 So I think what we are left with now is evidence of desperation.

2016See People v. Wittrein, 221 P.3d 1076, 1082 (Colo.2009) (noting that under the invited error doctrine, a party may not complain on appeal of an error that the party invited or injected into the case' and that the party must abide the consequences of his or her acts); see also Novotny, ¶¶ 31, 47, 320 P.3d at 1204, 1207 (Hood, J., concurring in part and dissenting in part) (noting that the invited error doe-trine would arguably preclude a defendant from contending that a biaged juror sat on the jury if the defendant those not to use a peremptory challenge to remove the juror after the trial cour

2016See People v. Wittrein, 221 P.3d 1076, 1082 (Colo. 2009) (noting that under the invited error doctrine, a party may not complain on appeal of an error that the party invited or injected into the case and that the party must abide the consequences of his or her acts); see also Novotny, ¶¶ 31, 47, 320 P.3d at 1204, 1207 (Hood, J., concurring in part and dissenting in part) (noting that the invited error doctrine would arguably preclude a defendant from contending that a biased juror sat on the jury if the defendant chose not to use a peremptory challenge to remove the juror after the trial court

1989People v. Collins, 730 P.2d 293 (Colo.1986); People v. Shackelford, 182 Colo. 48 , 511 P.2d 19 (1973); Stilley v. People, 160 Colo. 329 , 417 P.2d 494 (1966); Palmer v. Gleason, 154 Colo. 145 , 389 P.2d 90 (1964); Gray v. People, 139 Colo. 583 , 342 P.2d 627 (1959). 3 The invited error doctrine applies to jury instructions.

1989People v. Collins, 730 P.2d 293 (Colo.1986); People v. Shackelford, 182 Colo. 48 , 511 P.2d 19 (1973); Stilley v. People, 160 Colo. 329 , 417 P.2d 494 (1966); Palmer v. Gleason, 154 Colo. 145 , 389 P.2d 90 (1964); Gray v. People, 139 Colo. 583 , 342 P.2d 627 (1959). 3 The invited error doctrine applies to jury instructions.

2000Under the doctrine of invited error, a defendant may not later complain where he or she has been "the instrument for injecting error in the case; he is expected to abide by the consequences of his acts." People v. Collins, 730 P.2d 293, 304-05 (Colo.1986).

2000Under the doctrine of invited error, a defendant may not later complain where he or she has been "the instrument for injecting error in the case; he is expected to abide by the consequences of his acts." People v. Collins, 730 P.2d 293, 304-05 (Colo.1986).

2025In other words, “the invited error doctrine precludes appellate review of errors created by a party.” People v. Gross, 2012 CO 60M, ¶ 8 (emphasis added). ¶ 65 I recognize that, in reviewing for plain error, the majority merely follows the lead of several prior divisions of this court.

2024See People v. Gross, 2012 CO 60M, ¶ 9 (an invited error must be knowing and strategic in nature, not a result of defense counsel’s incompetence or inadvertence). ¶ 17 Nonetheless, Goodall disagrees, contending that because the parties engaged in contentious pretrial litigation concerning the boundaries of the expert testimony, there was no strategy and thus the error is preserved, or it should be reviewed for plain error.

2017Id. at 619. ¶ 25 Recently, a division of this court recognized that the "express acquiescence" part of the invited error rule falls within more traditional notions of "waiver," the effect of which, again, would be to preclude review on appeal.

2017We have expressly characterized the doctrine of invited error as a species of the equitable doctrine of estoppel, and more narrowly as a “cardinal rule of appellate review ... preventing] a party from inducing an inappropriate or erroneous [ruling] and then later seeking to profit from that error.” See Horton v. Suthers, 43 P.3d 611, 618 (Colo. 2002) (second alteration in original) (quoting Roberts v. Consolidation Coal Co., 208 W.Va. 218 , 539 S.E.2d 478, 488 (2000)); see also People v. Zapata, 779 P.2d 1307, 1309 (Colo. 1989) (“[A] party may not complain on appeal of an error that he has inv

2013M.S., 129 P.3d 1086, 1087 (Colo.App.2005). $26 Invited error most often arises in holding a defendant responsible for tendering or agreeing to a jury instruction later challenged on appeal.

2011See People in Interest of M.S., 129 P.3d 1086 (Colo.App.2005) (applying estoppel doctrine of invited error); see also People in Interest of D.P., 160 P.3d 351 (Colo.App.2007) (citing M.S. but applying estoppel doctrine of waiver).

2025See People v. Jacobson, 2017 COA 92, ¶¶ 48-52 , 474 P.3d 1222 , 1230 (holding that defense counsel invited the alleged error by “actively participat[ing]” in drafting the challenged instruction and answer to the jury question and by acquiescing in the instruction); People v. Hoover, 165 P.3d 784, 796 (Colo. App. 2006) (“Active participation in the preparation of a response to a jury question, or express agreement with it, bars the participant from arguing that the response constitutes error.”). ¶ 71 Even if defense counsel did not actively participate in drafting the challenged jury instructio

2024See Rediger , ¶ 34; Phillips , ¶ 16; see also People v. Jacobson , 2017 COA 92, ¶ 48 (concluding that the invited error doctrine precluded a defendant from challenging a jury instruction and the court’s answer to a jury question wh en the defendant’s counsel actively participated in prepa ration of both items); People v. Mendez , 897 P.2d 868, 871 (Colo. App. 1 995) (holding that a defendant was precluded from challenging the trial court’s response to a jury question when the record revealed “that not only did the defendant fail to object to the response, [hi s] defense counsel actively partic

2012See Gray, 139 Colo. at 588 , 342 P.2d at 630 . 1 10 Here, the defendant sought to invoke the attorney incompetence exception to the invited error doctrine to obtain appellate review of the initial aggressor jury instruction requested by his own counsel.

2012See Gray, 139 Colo. at 588 , 342 P.2d at 630 . 1 10 Here, the defendant sought to invoke the attorney incompetence exception to the invited error doctrine to obtain appellate review of the initial aggressor jury instruction requested by his own counsel.

2016Novotny, ¶ 27, 320 P.3d at 1203 , however, expressly concluded that such an argument does not automatically establish the requ1s1te prejudice for reversal. 1 31 I am likewise unpersuaded by Bonvici-nis contention at oral argument that had 'he foreseen our decision in Novotny, he would have exercised a peremptory challenge on Juror S and left Juror F on the jury, thereby establishing prejudice, In my view, such a strategy would arguably have failed under the invited error doctrine.

2016See People v. Wittrein, 221 P.3d 1076, 1082 (Colo. 2009) (noting that under the invited error doctrine, a party may not complain on appeal of an error that the party invited or injected into the case and that the party must abide the consequences of his or her acts); see also Novotny, ¶¶ 31, 47, 320 P.3d at 1204, 1207 (Hood, J., concurring in part and dissenting in part) (noting that the invited error doctrine would arguably preclude a defendant from contending that a biased juror sat on the jury if the defendant chose not to use a peremptory challenge to remove the juror after the trial court

2026See Bernache v. Brown, 2020 COA 106, ¶ 11 (“The doctrine of invited error prevents a party from complaining on appeal of an error that he or she has invited or injected into the case.”); Dep’t of Health v. Donahue, 690 P.2d 243 , 14 247 (Colo. 1984) (“Waiver is the intentional relinquishment of a known right or privilege.”).

2025See Bernache v. Brown, 2020 COA 106, ¶ 11 (“The doctrine of invited error prevents a party from complaining on appeal of an error that he or she has invited or injected into the case.”). ¶ 52 In any event, the district court awarded plaintiffs their reasonable costs as the prevailing party, as required by rule.

2025Put in the context before us, “under the invited error doctrine, we will not review alleged errors in jury instructions drafted and tendered by the now objecting party.” Day v. Johnson, 255 P.3d 1064, 1067-68 (Colo. 2011). 2.

2024See Day v. Johnson, 255 P.3d 1064, 1067-68 (Colo. 2011) (the invited error doctrine bars a party’s claim of error based on an instruction tendered by that party); People v. Jacobson, 2017 COA 92, ¶¶ 49-52 (invited error doctrine barred consideration of 2 claim that the court erred in responding to a juror’s question because counsel participated in formulating the response).1 ¶6 To the extent Medina contends that the court didn’t adequately respond when certain jurors mentioned the issue, that contention isn’t preserved because his counsel didn’t object or propose any response beyond what the c

2025Alternatively, the People argue that any error wasn’t plain. ¶ 57 We have “an independent, affirmative duty to determine whether a claim is preserved and what standard of review should apply, regardless of the positions taken by the parties.” Forgette v. People, 2023 CO 4, ¶ 15 (quoting People v. Tallent, 2021 CO 68 , ¶ 11). ¶ 58 The doctrine of invited error prevents a party from complaining on appeal about an error that he injected into the case.

2024See People v. Garcia , 2024 CO 41 , ¶ 28 ( “Waiver is ‘the intentional relinquishment of a known right or privilege, ’” and “an appellate court may not review a waiv ed error .” (quoting Forgette v. People , 2023 CO 4, ¶ 28) ) (emphasis omitted); People v. Rediger , 2018 CO 32, ¶ 34 (“The doctrine of invited error prevents a party from complaining on appeal of an error that he or she has invited or injected into the case; the party must abide the consequences of his or her acts.”). ¶ 25 Pike ’s counsel initially objected to the People’s proposed restitution order and requested discovery on it.

2025See People v. Chavez, 2012 COA 61, ¶ 51 (when defense counsel repeatedly elicited gang-related evidence, doctrine of invited error precluded review of the defendant’s argument on appeal that prosecution’s presentation of gang-related evidence was erroneous). ¶ 37 “The invited error doctrine prevents a party from appealing an error that he or she invited or injected into the case.” People v. Butler, 251 P.3d 519, 522 (Colo. App. 2010).

2025Madison Invited Any Error Regarding Jury Question Number Two ¶ 67 Madison contends that the court’s answer to jury question number two was “erroneous and obvious because it was apparent Instruction No. 12 could not clarify the jury’s confusion; it did not explain the jury had to find Madison had to attempt to take the life of the named victim.” ¶ 68 We conclude that Madison invited any error regarding the court’s response to jury question number two because the court adopted the defense’s proposed response, and defense counsel expressly agreed with the court’s language. ¶ 69 “The invited error

2025Vista Resorts, Inc. v. Goodyear Tire & Rubber Co., 117 P.3d 60, 65 (Colo. App. 2004).

2008See Vista Resorts, Inc. v. Goodyear Tire & Rubber Co., 117 P.3d 60, 65 (Colo.App.2004) ("The invited error doctrine prevents a party from inducing an erroneous ruling and then seeking to benefit by appealing that error.").

2025See Phillips v. People, 2019 CO 72, ¶ 16 (waiver requires an “intentional relinquishment of a known right or privilege.”); People v. 5 Zapata, 779 P.2d 1307, 1309 (Colo. 1989) (the doctrine of invited error applies when a party has invited or injected the error into the case). ¶ 16 Under the circumstances here, we are not persuaded that Baldwin intentionally relinquished a known right or injected the alleged error into the case by raising only a limited objection to the court’s proposed response.

2024See Rediger , ¶ 34; Phillips , ¶ 16; see also People v. Jacobson , 2017 COA 92, ¶ 48 (concluding that the invited error doctrine precluded a defendant from challenging a jury instruction and the court’s answer to a jury question wh en the defendant’s counsel actively participated in prepa ration of both items); People v. Mendez , 897 P.2d 868, 871 (Colo. App. 1 995) (holding that a defendant was precluded from challenging the trial court’s response to a jury question when the record revealed “that not only did the defendant fail to object to the response, [hi s] defense counsel actively partic

2016People v. Gibson , 203 P.3d 571, 574-75 (Colo. App. 2008).

2016People v. Gibson, 203 P.3d 571, 574-75 (Colo.App.2008).

2011See People in Interest of M.S., 129 P.3d 1086 (Colo.App.2005) (applying estoppel doctrine of invited error); see also People in Interest of D.P., 160 P.3d 351 (Colo.App.2007) (citing M.S. but applying estoppel doctrine of waiver).

2011See People in Interest of M.S., 129 P.3d 1086 (Colo.App.2005) (applying estoppel doctrine of invited error); see also People in Interest of D.P., 160 P.3d 351 (Colo.App.2007) (citing M.S. but applying estoppel doctrine of waiver).

2018Co., 957 P.2d 1380, 1385 (Colo. 1998) (Under the invited error doctrine, “a party may not later complain where he or she has been the instrument for injecting error in the case.”). ¶ 118 And, contrary to his assertion on appeal, Mr. Black never objected to any of the court’s comments during counsel’s extended argument.5 He complains that the court’s spontaneous “testimony” 5 Mr. Black says that his counsel told the court that he was “disturbed” by the court’s comments; in fact, what he told the court was, “what I’m disturbed about is their [court-appointed counsel and the GAL] refusal to conce

2005Co., 957 P.2d 1380 (Colo.1998) (discussing the doctrine of invited error).

2015Compare People v. Gregor, 26 P.3d 530 , 533 (Colo. App. 2000) ("Thus, defendant's affirmative proposal with respect to one instruction and acquiescence in two others, which related directly to the first instruction, led to invited error here."), with People v. Butler, 251 P.3d 519 , 523 (Colo. App. 2010) (Invited error does apply where "[t]he record shows that when the trial court proposed amending the jury instruction defining when a police officer acts under color of official authority by adding the phrase 'or search warrant executed,' [and] defense counsel responded, 'That's fine with me.'

2002The doctrine applies where one party expressly acquiesces to conduct by the court or the opposing party. [9] See, e.g., id. at 1385 (holding that the invited error doctrine applied where the trial court rejected a jury instruction tendered by defendant State Farm and State Farm elected not to tender a replacement instruction, thereby implicitly agreeing with the court's action); Boothe v. People, 814 P.2d 372, 376 (Colo. 1991) (Lohr, J., concurring) (holding that the invited error doctrine applied where defendant's counsel "was fully advised and acquiesced in the court's response to the jury's

1998See People v. McCoy, 944 P.2d 584 (Colo.App.1996)(under doctrine of invited error, defendant who requested instruction on attempted reckless manslaughter as lesser included offense of first degree murder could not complain of his conviction on the lesser included offense as inconsistent with convictions for assault and conspiracy to commit murder).

1998See People v. McCoy, 944 P.2d 584 (Colo.App.1996)(under doctrine of invited error, defendant who requested instruction on attempted reckless manslaughter as lesser included offense of first- degree murder could not complain of his conviction on the lesser included offense as inconsistent with convictions for assault and conspiracy to commit murder).

2025See Rediger, ¶¶ 34, 37; see also Boothe v. People, 814 P.2d 372, 377-78 (Colo. 1991) 5 (Lohr, J., concurring) (concluding that the invited error doctrine applied where the defense counsel acquiesced to the court’s response to a jury question). ¶ 16 We review de novo whether invited error applies.

2002The doctrine applies where one party expressly acquiesces to conduct by the court or the opposing party. [9] See, e.g., id. at 1385 (holding that the invited error doctrine applied where the trial court rejected a jury instruction tendered by defendant State Farm and State Farm elected not to tender a replacement instruction, thereby implicitly agreeing with the court's action); Boothe v. People, 814 P.2d 372, 376 (Colo. 1991) (Lohr, J., concurring) (holding that the invited error doctrine applied where defendant's counsel "was fully advised and acquiesced in the court's response to the jury's

2026The doctrine of invited error 9 prevents a party from “complaining on appeal of an error that [the party] invited or injected into the case; the party must abide [by] the consequences of [their] acts.” People v. Rediger, 2018 CO 32, ¶ 34 ; see People v. Becker, 2014 COA 36, ¶ 20 (The doctrine typically “precludes appellate review of alleged errors that were invited by a party’s affirmative conduct.”). ¶ 18 Here, the prosecutor misadvised the district court that there was only one available trial date before the speedy trial deadline and that date was the following week.

2026The doctrine of invited error 9 prevents a party from “complaining on appeal of an error that [the party] invited or injected into the case; the party must abide [by] the consequences of [their] acts.” People v. Rediger, 2018 CO 32, ¶ 34 ; see People v. Becker, 2014 COA 36, ¶ 20 (The doctrine typically “precludes appellate review of alleged errors that were invited by a party’s affirmative conduct.”). ¶ 18 Here, the prosecutor misadvised the district court that there was only one available trial date before the speedy trial deadline and that date was the following week.

2024“Invited error most often arises in holding a defendant responsible for tendering or agreeing to a jury instruction later challenged on appeal.” People v. Foster, 2013 COA 85, ¶ 26 , abrogated on other grounds by Wells- Yates v. People, 2019 CO 90M, ¶ 66 .

2016"Invited error most often arises in holding a defendant responsible for tendering or agreeing to a jury instruction later challenged on appeal." People v. Foster , 2013 COA 85 , ¶ 26, 364 P.3d 1149 . ¶ 9 In this case, defense counsel requested that the jury be instructed on the lesser non-included offense of public indecency.

1991See People v. Valdez, 725 P.2d 29 (Colo.App.1986).

1988People v. Collins, 730 P.2d 293 (Colo.1986); People v. Valdez, 725 P.2d 29 (Colo.App.1986).

2026“The invited error doctrine applies when a party invites or injects an error in the proceedings and later claims that the error should be a basis for reversal on appeal.” People in Interest of S.N- V., 300 P.3d 911 , 916 (Colo. App. 2011).

2024See People in Interest of S.N- V. , 300 P.3d 911 , 916 (Colo. App. 2011) (the invited error doctrine applies when a party invites or injects an error in t he proceedings and later claims that the error should be a basis f or reversal on appeal). ¶ 23 Finally , m other contends that she did not waive her right to appeal the APR judgment as a whole because she “ only left and acquiesced to the ruling after the court ruled the [D]epartment ha d made reasonable efforts, which she had already tied t o the best interests of her child.” ¶ 24 But mother did not mention the child’s best interests du ri