H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Colorado Court of Appeals Reverses Conviction – Breathes Life Into Colorado’s Self Defense Laws

The failure of a Jefferson County District Court judge to properly instruct a jury on the Defendant, Albert Montoya’s right of self defense – will probably lead to a completely new trial trial in the 2006 murder case.

Albert Montoya, in October of 2006 – fled a party in Wheatridge Colorado and fired back at a crowd of individuals chasing he and a friend from the location.

One of the bulletts fired by he and the codefendant struck and killed high school senior Mackenzie Kingry, four days before her 18th birthday.

The Colorado Court of Appleas ruled that the Jefferson County District Court judge who heard the case was required to properly instruct the jury on Colorado’s law of elf defense. He should have told jurors to consider the number of people chasing the pair when they responded with gunfire, said the state court of appeals.

“There was some evidence that . . . at least one other guest had a gun which he fired as the defendant departed the house,” wrote Judge Dennis Graham in an August decision that was amended Thursday.

“It was incumbent upon the trial court to give a self-defense instruction which embodied defendant’s theory that he believed he was threatened by multiple assailants,” Graham wrote.
Montoya was convicted of first-degree murder with extreme indifference, reckless manslaughter, criminally negligent homicide and accessory to a crime.

The appeals court left the last charge in place but reversed Montoya’s convictions on all .

Judge Steve Bernard disagreed with part of the decision, saying the jury knew there was a crowd chasing Montoya and Duran and wasn’t prohibited from taking the size of the crowd into consideration.

“This instruction properly set forth the general principle that the jury was required to evaluate the totality of the circumstances,” Bernard wrote. “. . . The jury was informed that defendant’s self-defense theory involved multiple assailants.”

]The Denver Post was the source of this blog entry.

H. Michael’s Take

To sqaure the law in this area with these facts — it is important to read the actual jury instruction on self defense in Colorado – I have included it here as it is read to the jury in a trial where self defense is asserted as an affirmative defense:


It is an affirmative defense to the crime of (Insert name of crime) that the defendant used deadly physical force:

1. in order to defend [himself] [or] [a third person] from what he reasonably believed to be the use or imminent use of unlawful physical force by the other person,

2. he used a degree of force which he reasonably believed to be necessary for that purpose, and
3. he/she reasonably believed a lesser degree of force was inadequate, and
4. had reasonable grounds to believe, and did believe, that he or another person was in imminent danger of being killed or of receiving great bodily injury.

[The defendant is not required to retreat in order to claim the right to employ force in his/her defense.]

[The defendant is not justified in using physical force if:

1. with intent to cause bodily injury or death to another person,

2. he/she provoked the use of unlawful physical force by that person.]

[The defendant is not justified in using physical force if he/she is the initial aggressor, except that his/her use of physical force under the circumstances is justifiable if:
1. he/she withdraws from the encounter, and

2. effectively communicates to the other person his/her intent to withdraw, and
3. the other person continues or threatens the use of unlawful physical force.]

[The defendant is not justified in using physical force if:

1. the physical force involved is the product of combat by agreement, and
2. the combat is not specifically authorized by law.]

In addition to proving all of the elements of the crime charged beyond a reasonable doubt, the prosecution also has the burden to disprove the affirmative defense beyond a reasonable doubt.

After considering the evidence concerning the affirmative defense, with all the other evidence in this case, if you are not convinced beyond a reasonable doubt of the defendant’s guilt, you must return a verdict of not guilty.