No syfertize treatment data for cluster 10115214.
Peo
v.
Clark
v.
Clark
Unknown
21CA1544 Peo v Clark 09-05-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA1544
Arapahoe County District Court No. 17CR3639
Honorable Andrew C. Baum, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Billy Darnell Clark, Jr.,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE GRAHAM*
Johnson and Hawthorne*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 5, 2024
Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Andrew C. Heher, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
1
¶ 1 Defendant, Billy Darnell Clark, Jr., appeals his judgment of
conviction entered on jury verdicts finding him guilty of two counts
of first degree assault. We affirm.
I. Factual and Procedural History
¶ 2 In early December 2017, Clark and his wife, T.W., engaged in
a heated argument after Clark discovered she was having an affair
with D.L.
1
The argument became physical and T.W. was injured.
After this initial altercation, Clark moved out of the marital home.
¶ 3 About two weeks later, Clark returned to the marital home to
deliver groceries and see his children; however, after a heated
phone call with T.W., Clark returned to his car and left the
property. T.W. took the call in her car with the car’s speaker on, so
her passengers, D.L., G.M. and K.S., were able to hear the
conversation with Clark. During the call, T.W. made several
threatening statements to Clark, telling Clark that she had “two
[people] that will beat your ass.”
¶ 4 As Clark was driving away, T.W. saw Clark pass by. T.W.
began following Clark, and both cars eventually stopped. T.W.
1
For the sake of brevity, we will refer to the victims (D.L. and G.M.)
and Clark’s wife (T.W.) by their initials.
2
exited her car, approached Clark’s driver’s side window, and
engaged in another argument while he remained in his vehicle. At
the same time, both D.L. and G.M. also exited T.W.’s car and
approached the rear passenger side of Clark’s vehicle.
¶ 5 At this point, the parties’ descriptions of events diverge. T.W.
testified that during her conversation with Clark over the speaker
phone, Clark told her that she “deserved” what she got during their
previous altercation. T.W. said that this comment upset both D.L.
and G.M. T.W. said that, after she began following Clark, he was
driving very slowly. T.W. said that she eventually stopped and got
out of her car, which caused Clark to also stop his vehicle. Before
exiting her vehicle, T.W. told everyone to stay in her car while she
talked to Clark. However, she said that both D.L. and G.M. left the
car and stood “a little bit back” by a tree. T.W. testified that she
began arguing with Clark and that she made him feel as if “he was
going to get jumped” by saying “[y]ou deserve what you’re about to
get.”
¶ 6 At some point Clark saw D.L. and G.M. approaching his car.
T.W. testified that she saw Clark get out of the car, and that he did
not have a gun with him at that time. She said that she believed
3
that Clark went back to the car and got the weapon. T.W. also said
that she heard the gunshots, but that she did not know at the time
if anyone was injured.
¶ 7 D.L. also testified at trial. D.L. said that T.W. stopped her car
“three to four” car lengths behind Clark’s car. D.L. said that T.W.
got out of her car, so he also got out of the car and stood near a tree
“just in case.” D.L. said he then saw the door to Clark’s car “fly
open,” which caused him to start running toward Clark’s car. D.L.
testified that he was hit by a bullet as he neared Clark’s car and
that, as he turned and ran away, he was struck by two more
bullets.
¶ 8 K.S. testified that she was also in the car at the time T.W.
argued with Clark over the car’s speakerphone. She said that the
mood in the car was “hyper” during the call, and that D.L. and G.M.
were both “hyping each other up.” K.S. recalled that they followed
Clark’s car for about a block; however, K.S. believed that Clark
stopped his vehicle first before T.W. stopped her car. K.S. also said
that, after T.W. and Clark talked for a few minutes, Clark opened
his car door, and that that is when D.L. and G.M. walked toward
Clark’s car. K.S. said that, as D.L. and G.M. approached Clark’s
4
car, she heard shots. She also testified that, at the time the shots
were fired, D.L. and G.M. were “[m]aybe a couple of arm’s length[]s
away from Clark.” K.S. also stated that as G.M. was “running past
the car, I seen the bullet hit him.”
¶ 9 Finally, Clark testified about the altercation. He said that
during the phone call with T.W., she said that she had two friends
coming to beat him up. Clark left the house to avoid a
confrontation; however, T.W. saw him driving and she began to
follow him. Clark said he began driving very slowly with his hazard
lights on. He said that T.W. stopped her car and exited the vehicle,
so he also stopped his car. He said that T.W. approached his car
and they began talking. Clark then heard a “bang” as someone
attempted to open the back passenger side door to his car. Clark
said that he saw “shadows” around his vehicle and that people were
yelling at him to “get . . . out of the car,” and that “[Clark] better
have that gun.” Clark testified that the event happened fast and
that he began firing his gun as soon as he got out of his car. Clark
said that his first shot was a “hip fire” as he was getting out of the
car and that the person near his car was still moving so he fired
again. Clark said that as soon as he came up to the tailgate of his
5
car, he saw G.M. moving toward him, so he fired his gun again.
Clark also said that both D.L. and G.M. were facing him when he
shot them.
¶ 10 Both D.L. and G.M. sustained serious bodily injuries from
multiple gunshot wounds. Clark was charged with two counts of
attempted second degree murder and two counts of first degree
assault. After a jury trial, Clark was convicted on the two counts of
first degree assault, and he was sentenced to serve a fifteen-year
term and a ten-year term in the custody of the Department of
Corrections, set to run consecutively.
II. Jury Instructions
¶ 11 Clark contends that the trial court erroneously instructed the
jury. Specifically, Clark argues that the trial court failed to properly
instruct the jury (1) on the concept of “multiple assailants” and (2)
on the concept of “initial aggressor.” We are not persuaded.
A. Standard of Review
¶ 12 A trial court has a duty to instruct the jury on all matters of
(Colo. 2011). We review a trial court’s decision to give a particular
instruction for an abuse of discretion. See People v. Ramos, 2017
6
COA 100, ¶ 14. “A court abuses its discretion if its decision is
manifestly arbitrary, unreasonable, or unfair, or when it misapplies
the law.” People v. Grant, 2021 COA 53, ¶ 12 (citations omitted).
But we review de novo whether the jury instructions, when
considered as a whole, accurately informed the jury of the governing
law. See Riley, 266 P.3d at 1092.
¶ 13 When, as here, a defendant does not preserve a contention, we
review only for plain error. See Hagos v. People, 2012 CO 63, ¶ 14.
An error is plain if it is obvious and substantial, such that it so
undermines the trial’s fundamental fairness as to cast serious
obvious when the action contravenes a clear statutory requirement,
a well-settled legal principle, or Colorado case law. Scott v. People,
clear cut and so obvious” that a trial judge should have been able to
avoid the error without the benefit of an objection. People v.
Conyac, 2014 COA 8M, ¶ 54. As applied to jury instructions, the
defendant must “demonstrate not only that the instruction affected
a substantial right, but also that the record reveals a reasonable
possibility that the error contributed to his conviction.” People v.
7
Garcia, 28 P.3d 340, 344 (Colo. 2001) (quoting Bogdanov v. People,
instruct the jury properly does not constitute plain error if the
relevant instruction, read in conjunction with other instructions,
adequately informed the jury of the law. Id. at 345 n.3. Moreover,
an erroneous jury instruction does not normally constitute plain
error where the issue is not contested at trial or where the record
contains overwhelming evidence of the defendant’s guilt. Espinoza
v. People, 712 P.2d 476, 478 (Colo. 1985).
B. Additional Facts
¶ 14 At the jury instructions conference, defense counsel tendered
several instructions to the court, one of which related to Clark’s
assertion that he acted in self-defense.
2
After reviewing the
2
We note that the transcript of the jury instructions conference
contains numerous gaps where defense counsel requested the
discussion occur “off the record.” Relevant here, one such gap
occurs when the parties are discussing the portion of the self-
defense instruction that addresses the “initial aggressor” and “duty
to retreat” concepts. As a result, facts not presented in the record
cannot be reviewed, and we will presume that omitted portions of
the record would support the trial court’s ruling. See People v.
Duran, 2015 COA 141, ¶¶ 12-13 (“The presumption is that material
portions omitted from the record would support the judgment.”).
8
evidence presented, the trial court found the evidence sufficient to
support including the instruction.
¶ 15 Turning to the “initial aggressor” concept, the court asked
Clark’s counsel if he believed that the initial aggressor language
should be included in the instruction. Clark’s counsel responded,
“I don’t know exactly what you’re looking at, Your Honor, but in the
end I think that it’s important that there be some language with
regard to [Clark] not having to retreat.” The court agreed and noted
that the second paragraph of the self-defense instruction already
included language instructing the jury that Clark did not have a
duty to retreat. After reviewing a printed copy of the self-defense
instruction that included the “initial aggressor” language, Clark’s
counsel informed the court that he had no objection to it. Before
closing arguments, the parties were shown the final jury
instructions and Clark’s counsel again reiterated that he had no
objections.
¶ 16 With regard to Jury Instruction No. 15 concerning self-
defense, the trial court instructed the jury:
The evidence presented in this case has raised
the affirmative defense of “defense of person,”
as a defense to Assault in the First Degree
9
(Deadly Weapon) and Attempt to Commit
Murder in the Second Degree.
Mr. Clark 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 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 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.
¶ 17 The instruction also informed the jury that the prosecution
must disprove beyond a reasonable doubt at least one element of
the self-defense instruction for the affirmative defense to not apply,
and that the jury should reach its verdict “after considering all the
evidence.” Clark’s counsel did not request a multiple assailants
instruction at any point during the jury instructions conference.
10
C. Analysis
1. Waiver and Invited Error
¶ 18 At the outset, the People contend that Clark may not challenge
either jury instruction because he either invited or waived any
error. We disagree.
¶ 19 A waiver requires an “intentional relinquishment of a known
right or privilege.” Phillips v. People, 2019 CO 72, ¶ 16 (quoting
People v. Rediger, 2018 CO 32, ¶ 39). “When an intentional
relinquishment of a known right is not present, then ‘the failure to
make the timely assertion of a right’ is a forfeiture, not a waiver.”
“Thus, while waiver requires ‘intent,’ forfeiture occurs ‘through
neglect.’” Id. (citation omitted).
¶ 20 Under the doctrine of invited error, “a party may not complain
on appeal of an error that he has invited or injected into the case;
he must abide the consequences of his acts.” People v. Zapata, 779
P.2d 1307, 1309 (Colo. 1989). Invited error is a narrow doctrine
that applies to errors in trial strategy but not to errors that result
from oversight or neglect. Rediger, ¶ 34. Like waiver, invited error
precludes review when a party acts intentionally; mere
11
acquiescence to an error that the party is unaware of does not show
invited error. Id. at ¶¶ 34-37. Thus, without record evidence that a
party affirmatively and strategically acquiesced to an erroneous
ruling, invited error does not apply. People v. Garcia, 2018 COA
180, ¶ 12 (citing Rediger, ¶ 10).
¶ 21 The People assert that Clark either invited or waived any
potential error because he “tendered the instructions which
initiated the conversation at the jury instruction conference” and
that he “actively participated in crafting the self-defense instruction
ultimately given to the jury.” We disagree.
¶ 22 Relevant here, Clark did not affirmatively indicate his desire to
relinquish a known right; indeed, the record is devoid of any
indication that the omissions on Clark’s part were intentional. See
Cardman, ¶ 11 (“The record is barren of any indication that defense
counsel considered raising the unpreserved claim before the trial
court but then, for strategic or any other reason, discarded the
idea.”). Rather, Clark’s omission of the multiple assailants
instruction is more properly characterized as a negligent oversight
on defense counsel’s part. See Rediger, ¶ 39 (Courts “do not
presume acquiescence in the loss of fundamental constitutional
12
rights, and therefore indulge every reasonable presumption against
waiver.” (quoting People v. Curtis, 681 P.2d 504, 514 (Colo. 1984)));
see also United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000)
(“[W]aiver is accomplished by intent, [but] forfeiture comes about
through neglect.”). While it is true that Clark offered a version of
the jury instructions to the court and his counsel actively
participated in the jury instructions conference, we can identify no
evidence in the record to indicate Clark’s clear intention to waive
this objection. Furthermore, there is no identifiable tactical or
strategic advantage to Clark omitting a multiple assailants
instruction where at least some evidence at trial supported
inclusion of the instruction. Consequently, we reject the People’s
argument that the doctrines of waiver and invited error apply.
2. Multiple Assailants Instruction
¶ 23 Clark contends that the trial court erred by not sua sponte
instructing the jury on the concept of “multiple assailants.” For
several reasons, we disagree.
¶ 24 First, we disagree with Clark’s contention that the error in this
case was sufficiently open and obvious to satisfy the first element of
plain error review. Typically, a district court need not “give a
13
specific multiple assailants instruction in every case involving both
multiple assailants and self-defense.” Riley, 266 P.3d at 1094.
Rather, a jury must consider the totality of the circumstances to
determine whether the defendant (1) reasonably believed self-
defense was necessary and (2) used reasonable force to repel the
jury understands that it may consider all the relevant evidence
when assessing the reasonableness of the defendant’s actions.” Id.
¶ 25 In this case, the court’s instruction to the jury emphasized
that the jury was to “consider[] all the evidence” in determining
whether Clark “reasonably believed” that another person was
subjecting (or about to subject) Clark to unlawful physical force.
This informed the jury that Clark was justified in using force
against any person who he reasonably believed was imminently
attacking him.
¶ 26 And, as noted above, Colorado courts have not deemed it
necessary to require trial courts to provide a specific multiple
assailants instruction in every self-defense case where multiple
assailants are present. Id. Indeed, courts have reached varying
outcomes in cases involving multiple assailants instructions based
14
on the specific circumstances of the case. See, e.g., People v. Jones,
675 P.2d 9, 13 (Colo. 1984) (concluding trial court’s denial of
multiple assailants instruction improper because evidence
supported its inclusion and the trial court’s self-defense instruction
improperly “omitted any reference to the defendant’s right to use
force in order to defend against [the actions of the] associates”);
Riley, 266 P.3d at 1092, 1094 (concluding a specific multiple
assailants instruction was not required where the court gave an
“apparent necessity” instruction because the “given instructions
properly direct[ed] the jury to consider the totality of the
circumstances”); People v. Roberts-Bicking, 2021 COA 12, ¶¶ 27-28
(trial court’s error in denying defendant’s multiple assailants
instruction was cured by trial court’s inclusion of supplemental
instruction requiring jury to consider “the totality of the
circumstances”). Taken together, these cases illustrate that a
specific multiple assailants instruction is not required in every
circumstance. Thus, we are hard pressed to conclude that the error
was so obvious that the trial court should have interjected sua
sponte where the case law on point demonstrates a variety of
outcomes based on case-specific circumstances.
15
¶ 27 Second, even assuming arguendo that the trial court’s failure
to instruct the jury sua sponte on the concept of multiple assailants
was obvious error, we still conclude that the error was not
substantial because there was not a reasonable probability that the
error contributed to Clark’s conviction. See People v. Miller, 113
P.3d 743, 750 (Colo. 2005).
¶ 28 In addition to the pattern jury instruction concerning self-
defense, the court instructed the jury to consider all the evidence in
the case in deciding whether the defendant acted in self-defense.
Specifically, the instructions given to the jury required it to consider
all of the evidence presented in the case before rendering a verdict.
This instruction, in combination with the other instructions
concerning self-defense, adequately directed the jury to consider the
totality of the circumstances, including the number of individuals
allegedly assaulting Clark at the time of the altercation. See People
v. Trujillo, 83 P.3d 642, 645 (Colo. 2004) (reviewing court must
consider jury instructions as a whole). Thus, we discern no
evidence that the jury instructions provided here improperly limited
the jury to consider only the danger posed by a single assailant.
16
¶ 29 We also deem it significant that defense counsel was able to
argue Clark’s multiple assailants theory under the instructions
provided by the court. For instance, Clark consistently testified
that there were “multiple people” or “multiple shadows” moving
around his car in the moments before he fired. Clark also
explained that he heard multiple voices threatening him, telling him
to “get . . . out of the car” and that Clark “better have that gun on
[him].” And in his closing argument, Clark’s counsel again
emphasized that Clark was threatened by multiple people, arguing
that Clark believed he had “two people here that are going to beat
[Clark] up.” Indeed, much of Clark’s closing argument centered on
the fact that Clark believed that D.L. and G.M. were about to
assault him.
¶ 30 Also, neither the prosecutor nor the court suggested to the
jury that it could not properly take into account Clark’s evidence
that he had to defend himself against multiple assailants and
therefore was entitled to use a degree of force he reasonably
believed necessary for that purpose. Indeed, as noted above,
Clark’s argument throughout the case was that his use of force was
necessary primarily because he was threatened by multiple
17
assailants. In other words, Clark’s primary point of contention
focused on whether his use of force was reasonable in the
circumstances. Thus, from our review of the record, it appears that
neither party actually contested whether the jury could consider the
impact of multiple assailants on Clark’s actions at trial. Espinoza,
712 P.2d at 478 (finding no plain error where the court erroneously
defined “knowingly” because the mental state was not contested at
trial); People v. Geyer, 942 P.2d 1297, 1301 (Colo. App. 1996)
(finding the court’s instructions on “unlawful entry” did not
constitute plain error because the defendant did not contest that he
was not authorized to enter the unit).
¶ 31 Therefore, based on the above, we also conclude that any
alleged error was not substantial because the record reveals that
there is not a reasonable probability that the error contributed to
Clark’s conviction.
3. Initial Aggressor Instruction
¶ 32 Clark contends that the trial court committed reversible error
when it instructed the jury on the concept of “initial aggressor.”
Specifically, he argues that the court erred in giving the initial
aggressor instruction because there was no evidence that Clark was
18
the initial aggressor, and, therefore, there was no support for
including this instruction. Again, we are not persuaded.
¶ 33 Where, as here, a defendant does not object to a jury
be an initial aggressor, a defendant must initiate the physical
court may give an initial aggressor instruction if the evidence will
support a reasonable inference that the defendant initiated the
physical conflict by using or threatening the imminent use of
unlawful physical force.” People v. Griffin, 224 P.3d 292, 300 (Colo.
App. 2009); see also People v. Roadcap, 78 P.3d 1108, 1113 (Colo.
App. 2003) (“A trial court should instruct the jury on a principle of
law when there is some evidence to support the instruction.”). In
determining whether the evidence is sufficient to warrant such an
instruction, we view the evidence in the light that favors giving the
instruction. People v. Silva, 987 P.2d 909, 914 (Colo. App. 1999).
¶ 34 Contrary to Clark’s contention, some evidence in the record
indicated that Clark could be viewed as the initial aggressor. For
instance, one witness to the altercation — T.W. — testified that she
did not believe that Clark had the gun when he initially exited the
19
car. Instead, T.W. said, “I think [Clark] went back to the car and
got [the gun].” This testimony at a minimum implies that Clark
initiated the altercation by returning to his car to retrieve his
weapon. The record also indicates that Clark was the only
individual to actually engage in physical violence during the
altercation by using the firearm against D.L. and G.M.
¶ 35 While Clark’s recitation of the facts provides a valid basis from
which the jury could reasonably determine that he was not the
initial aggressor, his argument misconstrues our role. In reviewing
whether a trial court’s decision to provide a specific jury instruction
was in error, we look only to determine if there is “some evidence” to
support the initial aggressor instruction. Castillo v. People, 2018
CO 62, ¶ 37; see also Roberts-Bicking, ¶ 31 (“A trial court may
instruct the jury on an exception to an asserted affirmative defense
if ‘some evidence’ supports the exception.” (citing Galvan v. People,
2020 CO 82, ¶ 25)). To qualify as “some evidence,” the evidence
must be such as would support a reasonable inference that the
accused was the initial aggressor.” Roberts-Bicking, ¶ 31. As noted
above, some evidence at trial supported a reasonable inference that
Clark could have been the initial aggressor to the altercation.
20
¶ 36 But Clark appears to contend that the record supports only
the conclusion that he was not the initial aggressor. However,
contrary to his argument on appeal, the issue of who initiated the
altercation was highly disputed at trial. Testimony by the witnesses
in the case provided varying — and often conflicting — accounts of
how that altercation unfolded. For instance, Clark himself testified
that T.W. told him that he was about to be assaulted by her
companions. Clark also said that he heard someone attempting to
open the back passenger side door of his car, and that he fired his
gun in self-defense as he was exiting his car. In contrast, T.W.
testified that Clark did not have a gun when he initially exited the
car, and that he returned to the car to retrieve the gun before firing
at D.L. and G.M. While we agree that the jury could reasonably
have sided with Clark’s version of the facts, other testimony
conflicted with his assertions. We, however, are not the fact finders
in this case; that duty is reserved for the jury and the jury alone.
See People v. Barker, 538 P.2d 109, 110 (Colo. 1975) (“It is
axiomatic that the jury is the sole judge of the credibility of the
witnesses.”); see also People v. Ramirez, 30 P.3d 807, 808-09 (Colo.
App. 2001) (a limitation on a judge’s power “is premised on the
21
basic principle that the jury should decide the difficult questions of
witness credibility and the weight to be given to conflicting
evidence”).
¶ 37 Because the record provides some evidence for including the
initial aggressor instruction, we discern the trial court did not err.
III. Prosecutorial Misconduct
¶ 38 Next, Clark contends that the prosecutor committed reversible
misconduct both in cross-examining Clark and during the
prosecutor’s closing arguments. Specifically, Clark argues that the
prosecutor engaged in misconduct by asserting that Clark had a
duty to retreat instead of defending himself. We disagree.
¶ 39 “In reviewing a claim of prosecutorial misconduct, ‘we consider
whether the prosecutor’s conduct was improper and whether any
impropriety requires reversal.’” People v. Garcia, 2022 COA 144,
¶ 56 (citation omitted). Whether a prosecutor’s statements
constitute misconduct is generally a matter left to the trial court’s
discretion. Id. Accordingly, we will not disturb the court’s rulings
on alleged misconduct absent a showing of an abuse of discretion.
People v. Strock, 252 P.3d 1148, 1152 (Colo. App. 2010).
22
¶ 40 Clark did not object to any of the prosecutor’s comments that
he now challenges on appeal. When a claim of error for
prosecutorial misconduct is not preserved, our review is quite
limited — we may reverse only if plain error occurred. Hagos, ¶ 14.
An error is plain only if it was obvious and so undermined the trial’s
fundamental fairness as to cast serious doubt on the conviction’s
reliability. People v. Dominguez-Castor, 2020 COA 1, ¶ 85.
¶ 41 Relevant here, Clark contends that several statements made
by the prosecution during cross-examination and closing
arguments constituted reversible prosecutorial misconduct. For
instance, on cross-examination Clark claims that the prosecution
repeatedly and improperly asserted that Clark should have
retreated and not stopped to speak with T.W. prior to the
altercation. In support, Clark points to several questions that the
prosecutor asked him, such as why he did not (1) call the police for
help; (2) drive to his friend’s house; (3) drive away from T.W.;
(4) drive to the Aurora Police Department; or (5) retreat or hide
inside his vehicle.
¶ 42 Clark also contends that the prosecution made similarly
inappropriate statements in the prosecution’s closing arguments by
23
heavily emphasizing that he had a duty to retreat. For instance, he
notes that in closing the prosecutor said the following:
• “So why when [T.W.] stops first did [Clark] then stop half
a block later? Instead, he could have taken any which
number of ways out of the neighborhood away from her,
away from her . . . . No, he chose to stop.”
• “[Clark] mentioned he is in his parked car, on or off, and
he heard someone trying to get into his back door, but it
was locked. Would a reasonable person stick around, or
would they drive off?”
• “[Clark] mentioned shadow people, these people who
were running all around the car and I didn’t know what
else to do. What else could I do? Not get out of the car.”
• “What is reasonable? Call 911, any X number of times.
Go to the police station that he said he went to earlier.
Have his friend call 911. . . . Not get out of the car.
Keep driving. . . . Why not leave? If he is so afraid of
[T.W.] why doesn’t he just leave?”
• “If you want to let’s say assume that what the defendant
said is true, is it reasonable? Is it reasonable to shoot
24
people walking towards your car? Is it reasonable to get
out of your car, place yourself in the middle of what you
describe as a dangerous situation? . . . No. This is law,
this is order, and it’s about reasonableness. This is not
self-defense.”
¶ 43 Reviewing Clark’s contentions of prosecutorial misconduct in
light of the entire record, we are disinclined to conclude that the
trial court committed plain error by not intervening sua sponte. As
noted above, initial aggressors do not have a privilege of using
physical force in self-defense unless the initial aggressor first
withdraws from the encounter and notifies the other person of his
or her withdrawal, and the other person continues or threatens to
use unlawful physical force. People v. Toler, 9 P.3d 341, 350 (Colo.
2000). Such a duty to retreat only applies to initial aggressors. See
People v. Martinez, 224 P.3d 1026, 1032 (Colo. App. 2009), aff’d on
other grounds, 244 P.3d 135 (Colo. 2010).
¶ 44 Clark correctly notes that Colorado law imposes no duty to
retreat on a person who is not the initial aggressor. See Cassels v.
People, 92 P.3d 951, 956 (Colo. 2004) (noting only initial aggressors
must retreat before using force in self-defense). And because Clark
25
asserts that he was the non-aggressor in this case, he argues that
the doctrine of no retreat applies. Thus, he contends that any
argument by the prosecution implying that he had a duty to retreat
was reversible error.
¶ 45 Clark’s contention, however, is premised on his assumption
that he was not the initial aggressor. But, as noted above, Clark’s
actions as described through the testimony of T.W. support a slight
but reasonable conclusion that he was, in fact, the initial aggressor.
Specifically, some evidence indicated that Clark returned to the car
to retrieve the gun before firing at D.L. and G.M. See Griffin, 224
P.3d at 300 (noting that Griffin’s initial verbal confrontation was
insufficient to make her the initial aggressor; however, evidence
that she left the argument and returned with a gun warranted
giving the initial aggressor instruction); People v. Willner, 879 P.2d
19, 25 (Colo. 1994) (noting defendant was the initial aggressor
because he was chasing the truck with a gun).
¶ 46 Because the act of returning to the car to retrieve the gun
arguably supports a conclusion that Clark was the initial aggressor,
Clark was not entitled to the protections of the no-retreat doctrine.
26
¶ 47 We also reject Clark’s assertion that the prosecutor’s
comments implied that he had a duty to retreat. The prosecutor’s
statements — viewed in the context of the record as a whole — do
not show that the prosecutor was arguing that Clark had a duty to
retreat. Rather, the prosecutor’s comments focused on Clark’s
decision to get out of his car and essentially enter the fray. See
People v. Monroe, 2020 CO 67, ¶ 28 (noting the prosecutor’s
comments did not highlight “the defendant’s failure to retreat once
he felt threatened,” but rather emphasized the defendant’s “decision
to enter the fray, which arguably made him an initial aggressor”).
Thus, the prosecutor’s comments were a reasonable response to
Clark’s assertion that he was not the initial aggressor. See People
in Interest of J.R., 2021 COA 81, ¶ 46 (“A prosecutor is afforded
considerable latitude in responding to the defense’s theory of the
case.”); People v. Thornton, 251 P.3d 1147, 1149 (Colo. App. 2010)
(“The prosecution is entitled to the benefit of every reasonable
inference that may fairly be drawn from the evidence . . . .”).
¶ 48 Therefore, we discern no prosecutorial misconduct.
27
IV. Cumulative Error
¶ 49 Finally, we disagree with Clark that the alleged errors require
reversal under the cumulative error doctrine.
¶ 50 “When reviewing for cumulative error, we ask whether
‘numerous formal irregularities, each of which in itself might be
deemed harmless, may in the aggregate show the absence of a fair
trial.’” People v. Vialpando, 2022 CO 28, ¶ 33 (quoting Howard-
Walker v. People, 2019 CO 69, ¶ 24). To reverse under this
doctrine, we must conclude that “the cumulative effect of [multiple]
errors and defects substantially affected the fairness of the trial
proceedings and the integrity of the fact-finding process.” Howard-
Walker, ¶ 24 (citation omitted).
¶ 51 Because we have rejected Clark’s assertions of error, we
discern no cumulative error occurred during his trial.
V. Conclusion
¶ 52 The judgment of conviction is affirmed.
JUDGE JOHNSON and JUDGE HAWTHORNE concur.