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Galvan Sr. v. People.

2020 CO 82. No. 19SC460. Quantum of Proof Required for Jury Instruction on Exception to Affirmative Defense of Self-Defense—Provocation Exception to Affirmative Defense of Self-Defense—“Some Evidence”—“Another Person” in Provocation Jury Instruction—Hypothetical Questions Calling for Advisory Opinions—Party Presentation Principle.

November 23, 2020

The Supreme Court held that when a trial 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 there is “some evidence” to support the exception. A division of the Court of Appeals correctly determined that there was some evidence in support of the provocation instruction the trial court gave the jury in this case. Additionally, the division correctly found that the trial court did not plainly err in failing to specify that all the references in the provocation instruction to “another person” meant the same person. The provocation instruction, in addition to prudently tracking the governing statute and the Colorado Model Criminal Jury Instructions, made clear to the jury that for defendant to forfeit the affirmative defense of self-defense, he had to have provoked the same person as to whom he was asserting self-defense.

The division properly abstained from deciding whether the provocation exception may be triggered by mere words because in this case both words and conduct supported the exception. For the same reason, the Supreme Court refrained from addressing this issue.

However, under the party presentation principle, the division improperly raised and resolved whether the First Amendment prohibited defendant’s words from being considered, in conjunction with his physical acts, as evidence in support of the provocation exception. Here, defendant raised for the first time a slightly different constitutional argument. He argued that mere words cannot impair a defendant’s right to the affirmative defense of self-defense without rendering the provocation statutory provision unconstitutional and potentially subjecting a defendant to criminal liability for speech that’s protected by the First Amendment. Because this is not a case involving mere words, though, the “mere words” constitutional argument defendant raised is a hypothetical one that calls for an advisory opinion. Therefore, the Court declined to address it.

The judgment was affirmed and the opinion was vacated.

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