Gross v. Colorado

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In this appeal, the issue before the Supreme Court was the court of appeals' unpublished decision in "Colorado v. Gross," (07CA2255, slip op. at 7 (Colo. App. Apr. 1, 2010) (not selected for official publication)), which reversed the defendant's convictions that arose out of a shooting at a campground. The court of appeals concluded that the trial court committed cumulative error by instructing the jury on the initial aggressor doctrine, which was requested by defense counsel; by allowing the prosecutor to argue that the defendant did not satisfy the duty to retreat, a requirement of the initial aggressor jury instruction; and by failing to instruct the jury that it could consider self-defense to determine whether the defendant possessed the culpable mental state required for the crime of extreme indifference murder. In so holding, the court reasoned that the attorney incompetence exception to the invited error doctrine permits plain error review of a defense-tendered instruction. Upon review, the Supreme Court held that the invited error doctrine precludes plain error review of a defense-tendered instruction. The attorney incompetence exception does not apply to deliberate, strategic acts of defense counsel but rather to inadvertent errors or oversights. Here, the invited error doctrine precluded the defendant from arguing that the trial court erred by giving the initial aggressor instruction because the defendant's trial counsel made a deliberate, strategic decision to request it. Furthermore, the prosecutor's statements during closing argument about the duty to retreat also could not be raised on appeal. In addition, the trial court should have instructed the jury on self-defense with respect to the crime of extreme indifference murder, but this error did not amount to plain error. View "Gross v. Colorado" on Justia Law