Background
After a dispute over parking on a shared driveway, Scott Christian Thompson punched his sister’s boyfriend. The boyfriend then took Thompson to the ground and beat him. Thompson’s girlfriend and sister arrived during the altercation, and after the boyfriend got off Thompson, Thompson went inside his home, retrieved a gun, pointed it toward his sister, and fired once, striking a nearby tree.
The prosecution initially charged Thompson with attempted second degree assault and menacing involving his sister and/or her boyfriend, but amended the charges before closing argument to identify only the sister as the victim. In closing, defense counsel sought to argue that the absence of charges relating to the initial fistfight showed Thompson had acted lawfully. The district court barred counsel from relying on the lack or dismissal of those charges, while permitting argument about whether the prosecution proved the pending firearm-related charges and disproved self-defense.
The Court’s Holding
The Colorado Court of Appeals affirmed Thompson’s convictions for attempted second degree assault and menacing. It held that the district court did not abuse its discretion by preventing defense counsel from arguing that the prosecution’s charging decisions concerning the initial fight supported an inference that Thompson was innocent or acted lawfully.
Charges are accusations, not evidence, the division explained. Just as the prosecution may not argue that filed charges demonstrate guilt, the defense may not argue that unfiled or dismissed charges demonstrate innocence. Thompson preserved his challenge to the limitation on closing argument, but did not preserve his constitutional claims that the ruling impaired his complete-defense rights or lowered the prosecution’s burden. In any event, the court held that any constitutional error was neither obvious nor substantial because Thompson presented evidence and argument supporting self-defense, and the jury was instructed that the prosecution had to disprove self-defense and defense of others beyond a reasonable doubt.
Key Takeaways
- A prosecutor’s decision not to bring, or to dismiss, charges is not evidence that conduct was lawful.
- Trial courts may restrict closing argument to evidence, reasonable inferences from evidence, and the governing jury instructions.
- To preserve constitutional appellate claims, a party must specifically raise the constitutional basis in the trial court.
Why It Matters
The decision reinforces the distinction between evidence at trial and the government’s charging decisions. Defense counsel may argue self-defense from the evidence of the full encounter, but cannot ask jurors to treat the absence of separate charges as proof that a defendant acted lawfully.
It also illustrates Colorado’s preservation rule: an objection to a closing-argument ruling alone does not preserve later, distinct due-process theories absent a clear connection to those constitutional claims.