Colorado v. Gross
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In this appeal, the Supreme Court reviewed the court of appeals' unpublished decision in "People v. Gross," (07CA2255, slip op. at 7 (Colo. App. Apr. 1, 2010) (not selected for official publication)), which reversed the defendant's convictions arising 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 with respect to the crime of extreme indifference murder. In its holding, the court reasoned that the attorney incompetence exception to the invited error doctrine permitted 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. In this case, 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. "Likewise, the prosecutor's statements during closing argument about the duty to retreat may not be raised on appeal." The Court held that the trial court should have instructed the jury on self-defense with respect to the crime of extreme indifference murder, but that this error did not amount to plain error.
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