Background
After drinking in downtown Denver, Israel and Levi Casillas and Akintunde Akinde encountered Stephen Swainson after he fell from his scooter. Israel asked Swainson for a cigarette, noticed cash in his pocket, and demanded “beer money.” Swainson testified that Israel hit him and that the trio knocked him down and kicked him in the head.
Swainson pulled out a folding work knife and said he swung it wildly because he feared for his life and wanted to escape. Israel suffered fatal stab wounds, and Levi suffered a collapsed lung. A jury convicted Swainson of second degree murder, attempted second degree murder, and first degree assault; the trial court merged the attempted-murder conviction into the assault conviction, found him a habitual criminal, and imposed crime-of-violence enhancers.
The Court’s Holding
The Court of Appeals reversed and remanded for a new trial. Swainson presented sufficient evidence to require a heat-of-passion instruction on second degree murder and first degree assault: his testimony described a rapid, continuous attack by multiple people, kicks to his head, impaired vision after his glasses were broken, and a reaction “in the heat of the moment.” The omission improperly relieved the prosecution of its burden to disprove heat of passion beyond a reasonable doubt and was not harmless.
The court also held that, on retrial, the trial court must give a deadly-force self-defense instruction under Colorado’s provision allowing deadly force against an actual or apparent first- or second-degree assault. Swainson’s testimony supplied some evidence that the trio’s punches and kicks could constitute second degree assault. The court rejected his request for a nondeadly-force instruction because wildly swinging a knife at close range was objectively deadly force.
Key Takeaways
- A defendant is entitled to a heat-of-passion instruction when there is some supporting evidence for each element, even if the evidence is slight.
- Omitting a warranted mitigating-factor or affirmative-defense instruction can lower the prosecution’s burden of proof and require reversal.
- Deadly-force self-defense may be available against an apparent second degree assault involving bodily injury and a deadly weapon, including fists or feet used in a manner capable of causing serious injury.
Why It Matters
The decision reinforces Colorado’s low evidentiary threshold for requested defense instructions. Trial courts must allow juries to consider supported alternative theories, including both self-defense and heat-of-passion mitigation.
Because the convictions were reversed for a new trial, the court did not decide Swainson’s remaining claims concerning other instructions, evidentiary rulings, habitual-criminal adjudication, or sentencing.