Background
Jerry P. Duong fatally shot a friend in the apartment he shared with his elderly father. Earlier that night, Duong, the victim, and friends had been using drugs and arguing over rumors that the victim had a relationship with the mother of Duong’s child. After the friends left, the victim and another friend later returned to the apartment.
Duong claimed the victim and the other friend were searching for $20,000 and that the victim then punched him repeatedly and attacked him with a knife. Duong testified that he shot the victim because he feared for his life. Police found the victim dead from multiple gunshot wounds, a knife near his hand, and cuts on Duong’s neck. A jury rejected self-defense and convicted Duong of second-degree murder.
The Court’s Holding
The Colorado Court of Appeals affirmed. It held that sufficient evidence supported the jury’s finding that the prosecution disproved self-defense beyond a reasonable doubt. Evidence permitted the jury to infer that Duong fabricated his account and inflicted his own injuries, including the superficial nature of his wounds, DNA evidence on the knife, the victim’s lack of hand injuries, physical evidence suggesting the victim was shot on the bed, and inconsistencies in Duong’s testimony.
The court also rejected Duong’s unpreserved instructional claims. Any failure to define first- and second-degree assault within the self-defense instruction was neither obvious nor substantially prejudicial, particularly because Duong testified he used deadly force because of the knife attack and fear of death, not merely fear of bodily injury. The trial court likewise had no duty to give a heat-of-passion instruction sua sponte because Duong neither raised that theory nor requested the instruction.
Key Takeaways
- A jury may reject self-defense when competing evidence reasonably supports an inference that the defendant fabricated the claim.
- Unrequested jury instructions are reviewed for plain error, requiring an obvious and substantial error.
- A heat-of-passion instruction is required only when supported by evidence and requested by the defendant.
Why It Matters
The decision underscores the deference appellate courts give to juries resolving conflicting evidence and witness credibility in self-defense cases. It also reinforces that defendants must timely request theory-of-defense instructions, especially where the claimed instructional omission is not clearly required by statute or established law.