Peo v. Madison

22CA1311 Peo v Madison 07-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1311
City and County of Denver District Court No. 21CR4630
Honorable Martin F. Egelhoff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Anthony G. Madison,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE LIPINSKY
Pawar and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 10, 2025

Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Daniel Kent, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Anthony G. Madison appeals his convictions on three counts

of attempted extreme indifference murder. We affirm.

I. Background

¶2 A jury could have reasonably found the following facts from

the evidence introduced at trial.

¶3 Madison and Kailea Leaverton lived in the same apartment

building. Madison told Leaverton that he “wanted to have sex” with

her, but she rebuffed him. Madison responded by saying that “he

didn’t want to be [her] friend” and took action against her. He wrote

expletives and derogatory language on Leaverton’s apartment door,

sent her a demeaning letter, and wrote insulting words and

profanity on the parking lot directly below Leaverton’s bedroom

window.

¶4 Leaverton told Brandon Hardin, her boyfriend, about the

messages and asked Hardin to “talk to” Madison because “there

was nothing [she] could do or to say to [him] for him to leave [her]

alone.”

¶5 On July 28, 2021, Leaverton, Hardin, and Joshua Moore, a

mutual friend, ran errands in Moore’s truck. After the three

completed their errands, Hardin and Moore dropped off Leaverton

1
in the alley behind her apartment building. When Madison “came

around [a] corner,” Hardin said, “[T]his is our opportunity to go talk

to him,” about the messages he left for Leaverton.

¶6 Hardin got out of the truck, approached Madison, and “told

[him] to leave [Leaverton] alone.” During the interaction, Hardin

“was not aggressive or rude.” Leaverton told Madison that she did

not like his messages and “wanted to be married” to Hardin.

Neither Leaverton nor Moore nor Hardin was armed at the time.

¶7 Madison replied, “Okay, [Leaverton]. I’ll leave you alone.”

Leaverton, Hardin, and Moore then “turn[ed] to walk away.”

Madison “walked a couple of feet . . . back the way he came” but

then spoke Leaverton’s name. When Leaverton turned around, she

saw that Madison was aiming a gun at her. He fired once. The shot

missed. Madison then pointed the gun at Moore and said, “You’re

not so tough now, are you, motherfucker?”

¶8 Leaverton testified that Hardin thought Madison had shot her

and told Madison, “You shot my wife.” Based on this

misunderstanding, Hardin “got a gun” from the truck to defend

Leaverton. Madison and Hardin “got into a shootout.” No one was

shot, however. Surveillance video captured the incident.

2
¶9 Madison was arrested and charged with three counts of

criminal attempt to commit murder in the first degree (after

deliberation) for his actions against Hardin, Leaverton, and Moore

(the victims); three counts of criminal attempt to commit murder in

the first degree (extreme indifference) for his actions against the

victims; one count of possession of a weapon by a previous offender

(POWPO); and six counts of crime of violence with the use of a

deadly weapon that corresponded to the six attempted murder

counts.

¶ 10 The prosecution filed, and the court granted, a pretrial motion

to dismiss the three attempted murder in the first degree (after

deliberation) counts and the three corresponding crime of violence

counts.

¶ 11 Among other witnesses, Leaverton and Madison testified at

trial. (Hardin died before trial.) Defense counsel conceded that

Madison was guilty of POWPO but argued to the jury that Madison

was not guilty of attempted extreme indifference murder because he

had acted in self-defense.

¶ 12 The jury convicted Madison of the three attempted extreme

indifference murder counts, the three corresponding crime of

3
violence with the use of a deadly weapon counts, and the POWPO

count.

¶ 13 On appeal, Madison contends that the court inadequately

instructed the jury on self-defense and attempted extreme

indifference murder and abused its discretion in formulating

answers to two jury questions. Additionally, Madison asserts that

the prosecutor committed misconduct during closing argument.

Lastly, Madison argues cumulative error.

II. Analysis

A. The Court’s Self-Defense Jury Instruction

¶ 14 Madison asserts that the court’s self-defense instruction was

contrary to People v. Jones, 675 P.2d 9 (Colo. 1984), and Riley v.

People, 266 P.3d 1089 (Colo. 2011), for two reasons: First, it did not

expressly tell the jury to consider the totality of the circumstances

and, second, did not instruct the jury to consider the number of

persons who reasonably appeared to present a threat to Madison

when determining the reasonableness of Madison’s fear of imminent

bodily harm or death and his use of the gun. We disagree.

¶ 15 (Madison also asserts that the court’s self-defense instruction

deprived him of his constitutional rights “to put on a complete

4
defense and be convicted beyond a reasonable doubt.” We are not

convinced, however, that the court’s self-defense instruction

lowered the prosecution’s burden of proof or directly implicated any

of Madison’s specific constitutional rights. See People v. Flockhart,

2013 CO 42, ¶ 20, 304 P.3d 227, 233 (“Only those errors ‘that

specifically and directly offend a defendant’s constitutional rights

are “constitutional” in nature.’” (quoting Wend v. People, 235 P.3d

1089, 1097 (Colo. 2010))).)

1. Standard of Review

¶ 16 A trial court “has substantial discretion in formulating the jury

instructions, so long as they are correct statements of the law and

fairly and adequately cover the issues presented.” People v.

Gallegos, 226 P.3d 1112, 1115 (Colo. App. 2009). Similarly, we

review a court’s “decision regarding supplemental instructions for

an abuse of discretion.” People v. Dinapoli, 2015 COA 9, ¶ 9, 369

P.3d 680, 682.

¶ 17 We will not reverse a conviction “if the [jury] instructions, read

as a whole, adequately inform the jury of the law.” Gallegos, 226

P.3d at 1115. But “[w]e review de novo whether a particular jury

5
instruction correctly states the law.” People v. Nerud, 2015 COA 27,

¶ 35, 360 P.3d 201, 207.

2. Additional Facts

¶ 18 Madison tendered the following “multiple assailants” jury

instruction, which his counsel said was premised on Riley:

The totality of the circumstances, including the
number of persons reasonably appearing to be
threatening the defendant, must be considered
by the jury in evaluating the reasonableness of
the defendant’s belief in the necessity of
defensive action, and the reasonableness of the
force used by him to defen[d] against the
apparent danger.

Defense counsel argued that the “multiple assailants” language

could appear either in a standalone instruction or “a paragraph

folded into” the court’s self-defense instruction.

¶ 19 The prosecutor responded that, under the self-defense case

law, a “multiple assailants” instruction was unnecessary so long as

the court instructed the jury to “consider similar conditions and

circumstances and the totality of the circumstances.” The

prosecutor added that the court’s self-defense instruction could say

that “the jury must consider the totality of the circumstances, and

[the court] could go further to say including the number of people

6
present.” But the prosecutor said that “the case law cited in Riley”

did not require such language.

¶ 20 Defense counsel asked the court to tell the jury in the self-

defense instruction that it “must consider [the totality of the

circumstances] in evaluating the reasonableness of the defendant’s

belief and the necessity of defensive action and the reasonableness

of the force used by him to defend against the apparent danger” but

noted that he was “fine with amending [the language] or

abbreviating it” as the prosecutor suggested.

¶ 21 Noting that the underpinning of “self-defense is

reasonableness, and actions need to be reasonable,” the court

agreed with defense counsel that, “in determining what is

reasonable,” the jury should “look at all the circumstances.”

However, it said it did not need to include “a specific instruction

defining all the circumstances that go into that reasonableness

analysis.” The court explained that “the philosophy of jury

instructions in terms of the pattern instructions [is] to avoid” jury

instructions based upon “just case law.” Therefore, it ruled that it

would not provide the jury with the defense’s “multiple assailants”

instruction.

7
¶ 22 Defense counsel persisted and again asked for a “multiple

assailants” instruction. He said that, “at a minimum,” the court

should change “other persons” to “other person or persons” in the

self-defense instruction because the incident “clearly [involved]

more than one person.”

¶ 23 The court agreed:

THE COURT: So if in the second paragraph we
say a person is justified in using physical force
against another person or persons without
retreating, that’s what you’re asking for?

[DEFENSE COUNSEL]: And then repeating the
“or persons” at the next juncture where the
comment is.

THE COURT: So without retreating in order to
defend himself against what he considers the
use or imminent use of unlawful physical force
by that other person or persons, yes?

[DEFENSE COUNSEL]: Yes, Your Honor.

THE COURT: I can do that.

¶ 24 The court provided the jury with the following self-defense

instruction:

A person is justified in using physical force
upon another person or persons without first
retreating in order to defend himself from what
he reasonably believes to be the use or
imminent use of unlawful physical force by
that other person or persons, and he may use

8
a degree of force which he reasonably believes
to be necessary for that purpose.

However, a person is not justified in using
physical force if he is the initial aggressor;
except that his use of physical force upon
another person under the circumstances is
justifiable if he withdraws from the encounter
and effectively communicates to the other
person his intent to do so, but the other
person nevertheless continues or threatens the
use of unlawful physical force.

The court’s initial aggressor language follows the Colorado Model

Criminal Jury Instructions. See COLJI-Crim. H:13 (2022).

3. The Court Did Not Err in Formulating
the Initial Aggressor Language in the
Self-Defense Instruction

¶ 25 Madison contends that the self-defense instruction was

erroneous because it did not direct the jury to consider the totality

of the circumstances and the number of persons who reasonably

appeared to be threatening Madison. We disagree.

¶ 26 While the model instructions are not “a safe harbor that

insulates instructional error from reversal,” they “have been

approved in principle by [the supreme] court and serve as beacon

lights to guide trial courts.” Galvan v. People, 2020 CO 82, ¶ 38,

476 P.3d 746, 756-57 (quoting Garcia v. People, 2019 CO 64, ¶ 22,

9
445 P.3d 1065, 1069). Further, “it is unnecessary to give an

instruction that is encompassed in other instructions given by the

court.” People v. Garcia, 1 P.3d 214, 222 (Colo. App. 1999), aff’d,

28 P.3d 340 (Colo. 2001); see Beckett v. People, 800 P.2d 74-75, 78

(Colo. 1990) (concluding that the defendant was not entitled to an

“apparent necessity” jury instruction because the trial court’s self-

defense instruction tracked the statute and adequately apprised the

jury that it must consider “the totality of circumstances . . . in

evaluating the reasonableness of the accused’s belief in the

necessity of defensive action” (quoting Jones, 675 P.2d at 14)); Hare

v. People, 800 P.2d 1317, 1319 (Colo. 1990) (holding that the

court’s self-defense instruction encompassed the defense’s tendered

instruction).

a. Jones and Riley

¶ 27 Madison contends that, “[w]hile [the model] instructions are

normally adequate, a supplemental or modified instruction [was]

necessary to adequately instruct the jury to comply with Jones and

Riley.” He argues that Jones and Riley require the court to instruct

the jury that it must consider the “totality of circumstances,

including the number of persons reasonably appearing to be

10
threatening the accused,” in self-defense cases involving multiple

assailants. Jones, 675 P.2d at 14. We disagree with Madison’s

reading of the case law.

¶ 28 The defendant in Jones testified that the victim and his

associates were “about to attack him and . . . only after [the victim]

struck the first blow and the [victim’s associates] entered the

encounter did [the defendant] use his blackjack in self-defense.” Id.

The supreme court held that, given these facts, the district court

erred because its self-defense jury instruction “omitted any

reference to the defendant’s right to use force” to defend himself

against the victim’s associates. Id. at 13.

¶ 29 In Riley, the supreme court clarified its holding in Jones. The

defendant in Riley had used a knife, arguably in self-defense, after

two people physically attacked him. 266 P.3d at 1091. The Riley

court explained that Jones does not require that the court give a

specific “multiple assailants” instruction “in every case involving

both multiple assailants and self-defense.” Id. at 1094. Self-

defense instructions will satisfy Jones so long as they “properly

direct the jury to consider the totality of the circumstances during

its deliberations on reasonableness.” Id. Because the jury

11
instructions in Riley were “broad enough to encompass [the

defendant]’s multiple assailants theory of defense,” the supreme

court concluded that the district court’s refusal to provide the

defense’s tendered “multiple assailants” instruction did not run

afoul of Jones. Id. at 1095.

¶ 30 In addition, in People v. Roberts-Bicking, the defendant claimed

that the victims, who had previously threatened to physically harm

him, entered his “bedroom area” and moved towards him. 2021

COA 12, ¶¶ 4-9, 490 P.3d 1128, 1131-32. The defendant shot one

of them and punched the other. Id. Although the district court

rejected the defense’s tendered “multiple assailants” instruction, it

told the jury, in response to a jury question, that it must consider

the “totality of the circumstances” when making its reasonableness

determination. Id. at ¶¶ 13-16, 490 P.3d at 1132-33.

¶ 31 The division in Roberts-Bicking held that, “while the initial

[model] instructions may have been inadequate,” in telling the jury

to consider the totality of the circumstances, “the supplemental

instruction provided in response to the jury’s question cured any

deficiency.” Id. at ¶¶ 26-27, 490 P.3d at 1134-35. The division

premised its holding on the Riley court’s conclusion that “[a]ll that

12
is required [of jury instructions] is that the jury be instructed to

consider the reasonableness of the defendant’s beliefs and actions

under the totality of the circumstances.” Roberts-Bicking, ¶ 28, 490

P.3d at 1135 (citing Riley, 266 P.3d at 1094).

b. The Initial Aggressor Instruction

¶ 32 Although the court’s initial aggressor instruction did not refer

to “person or persons,” we conclude that it sufficiently addressed

Madison’s self-defense theory for three reasons. See Riley, 266 P.3d

at 1095.

¶ 33 First, it tracked the model jury instructions in effect at the

time of trial. See COLJI-Crim. H:13 (2022); Galvan, ¶ 38, 476 P.3d

at 756-57.

¶ 34 Second, the court’s self-defense instruction did not limit the

jury’s consideration to one person’s conduct, even though the

instruction’s initial aggressor language only referred to a “person.”

Indeed, in the self-defense instruction, the court told the jury it had

to find what Madison “reasonably believe[d]” when he evaluated the

threat posed by other “person or persons” and the appropriateness

of his degree of force.

13
¶ 35 Moreover, the court’s first instruction said the jury must

“consider all the evidence in light of” life experiences, “[n]o single

instruction describes all the law,” and it must consider the court’s

instructions “together as a whole.” See Gallegos, 226 P.3d at 1115.

The attempted extreme indifference murder instruction and the

deadly weapon instruction also directed the jury to reach its

conclusions only “[a]fter considering the evidence.”

¶ 36 Third, the evidence and the lawyers’ arguments made it

unlikely that a reasonable juror could have thought it was barred

from considering a situation involving multiple attackers when

evaluating the reasonableness of Madison’s belief that he was

threatened with the imminent use of unlawful physical force. See

Boyde v. California, 494 U.S. 370, 383 (1990) (“[W]e think it

unlikely that reasonable jurors would believe the court’s

instructions transformed all of this ‘favorable testimony into a

virtual charade.’” (quoting California v. Brown, 479 U.S. 538, 542

(1987))). For example, defense counsel repeatedly told the jury that

Madison acted in response to the threat from the victims. In

addition, the prosecutor reminded the jury to consider “the totality

14
of the circumstances, not just one fact here, one fact there,” but

“[e]verything that [Madison] perceived at the time.”

¶ 37 Accordingly, the court did not err when it instructed the jury

on self-defense.

B. The Court’s Attempted Extreme Indifference Murder
Instruction

¶ 38 Madison contends that the attempted extreme indifference

murder instruction “was erroneous because it did not specify the

jury could only convict Madison of extreme indifference murder for

a particular named victim if it found he had attempted to take the

life of that named victim (even if he did not intend to take the life of

that victim).” We disagree.

1. Preservation and Standard of Review

¶ 39 The parties agree that Madison did not preserve his challenge

to the attempted extreme indifference murder instruction.

Therefore, we review for plain error. See People v. Hamilton, 2019

COA 101, ¶ 14, 452 P.3d 184, 191.

¶ 40 “Under Crim. P. 52(b), plain error occurs when there is (1) an

error, (2) that is obvious, and (3) that so undermines the

fundamental fairness of the trial itself as to cast serious doubt on

15
the reliability of the judgment of conviction.” Cardman v. People,

2019 CO 73, ¶ 19, 445 P.3d 1071, 1079.

2. Additional Facts

¶ 41 At the jury instruction conference, the court explained that it

combined the instructions for attempt and extreme indifference

murder because “[s]ometimes it’s confusing when the jury has

separate instructions as to the attempt and separate instructions as

to the murder in the [first degree].” Madison’s counsel did not

object to the combined instruction.

¶ 42 The court provided the jury with the following instruction on

attempted extreme indifference murder:

The elements of the crime of Criminal Attempt
to Commit Murder in the First Degree (extreme
indifference) are:

1. That the defendant,

2. in the State of Colorado, at or about July
28, 2021,

3. knowingly,

4. engaged in conduct constituting a
substantial step toward the commission
of Murder in the First Degree (extreme
indifference).

A “substantial step” is any conduct, whether
act, omission, or possession, which is strongly

16
corroborative of the firmness of the actor’s
purpose to complete the commission of the
offense.

The elements of the crime of Murder in the
First Degree (extreme indifference) are:

1. That the defendant,

2. in the State of Colorado, at or about July
28, 2021,

3. knowingly,

4. under circumstances evidencing an
attitude of universal malice manifesting
extreme indifference to the value of
human life generally,

5. engaged in conduct which created a grave
risk of death to a person, or persons,
other than himself, and

6. thereby caused the death of another.

After considering the evidence, if you decide
the prosecution has proven each of the
elements beyond a reasonable doubt, you
should find the defendant guilty of Criminal
Attempt to Commit Murder in the First Degree
(extreme indifference).

After considering the evidence, if you decide
the prosecution has failed to prove any one or
more of the elements beyond a reasonable
doubt, you should find the defendant not
guilty of Criminal Attempt to Commit Murder
in the First Degree (extreme indifference).

See COLJI-Crim. G2:01 (2022); COLJI-Crim. 3-1:04 (2022).

17
¶ 43 In addition, the court gave the jury an instruction defining

“[u]niversal malice” as “conduct that, by its very nature and the

circumstances of its commission, evidences a willingness to take

human life indiscriminately, without knowing or caring who the

victim may be or without having an understandable motive or

provocation.” That instruction tracked the model instruction. See

COLJI-Crim. 3-1:04 cmt. 6 (2022).

3. The Court Did Not Err in Formulating
the Attempted Extreme Indifference Murder Instruction

¶ 44 A person commits first degree murder (extreme indifference) if,

“[u]nder circumstances evidencing an attitude of universal malice

manifesting extreme indifference to the value of human life

generally, he knowingly engages in conduct which creates a grave

risk of death to a person, or persons, other than himself, and

thereby causes the death of another.” § 18-3-102(1)(d), C.R.S.

2024.

¶ 45 Extreme indifference murder is different from other forms of

homicide in that the actor must have demonstrated “a willingness

to take human life indiscriminately, without knowing or caring who

the victim may be or without having an understandable motive or

18
provocation.” Candelaria v. People, 148 P.3d 178, 181-82 (Colo.

2006). To knowingly put “a person, or persons,” § 18-3-102(1)(d), at

grave risk of death “necessarily comprehends killing acts that put at

grave risk a number of individuals not targeted by the defendant, as

well as acts putting at risk a single victim,” Candelaria, 148 P.3d at

182-83.

¶ 46 The Candelaria court squarely addressed the applicability of

extreme indifference murder when the defendant’s conduct put

numerous people at risk:

Although secreting an explosive device in an
airplane to kill one of the passengers is
certainly a murderous act directed at a
particular, intended victim, it is not directed
solely at the intended victim. Because it is an
act gravely endangering the other passengers
as well, it constitutes conduct evidencing an
extreme indifference to the value of human life
generally.

Id. at 182.

¶ 47 Madison contends that the court’s extreme indifference

instruction was erroneous because it did not “track the [c]omplaint

and information, which specified the victim for each count of

attempted extreme indifference murder.” He argues that a proper

attempted extreme indifference murder instruction must say that,

19
to convict the defendant, the jury must find, along with the other

elements, that the defendant “engaged in conduct which created a

grave risk of death to a person, or persons, other than himself, and

thereby attempted to cause the death of [named victim].” (Emphasis

added.) We disagree.

¶ 48 The court’s extreme indifference instruction tracks the

criminal attempt, § 18-2-101(1), C.R.S. 2024, and first degree

murder, § 18-3-102(1)(d), statutes. See Galvan, ¶ 37, 476 P.3d at

756 (“A jury instruction that tracks the exact language of a statute

is unlikely to mislead the jury on the state of the law.” (quoting

People in Interest of J.G., 2016 CO 39, ¶ 42, 370 P.3d 1151, 1163)).

Further, the title of each attempted extreme indifference murder

verdict form specified a different victim.

¶ 49 Madison also contends that the attempted extreme

indifference murder instruction, “taken to its logical conclusion,”

would mean that “the prosecution could name infinite victims in the

[c]omplaint and [i]nformation — even those unrelated to the case —

and secure a conviction against a defendant for the attempted

murder of all of those victims so long as the jury found a defendant

attempted to kill ‘another.’” We disagree.

20
¶ 50 The supreme court held in Montoya v. People that conscious

but indiscriminate “shooting into a crowd of people presents a

quintessential example of circumstances evidencing a willingness to

take life indiscriminately and therefore, in the language of the

statute, evidencing universal malice manifesting extreme

indifference to the value of human life generally.” 2017 CO 40, ¶

21, 394 P.3d 676, 684; see People v. Anderson, 2019 CO 34, ¶ 14,

442 P.3d 76, 79 (explaining that the first degree murder (extreme

indifference) statute singles “out for special treatment those acts

causing the death of another under circumstances evidencing a

willingness to take life indiscriminately — not acts having an actual

effect of endangering a number of lives, or even one life,

indiscriminately”). Further, jury instruction twelve told the jury it

could find Madison “guilty or not guilty of any one or all of the

offenses charged.”

¶ 51 Thus, the court did not err, much less plainly err, in drafting

the attempted extreme indifference murder jury instruction.

21
C. The Court Did Not Abuse Its Discretion by Providing Its
Supplemental Instruction in Response to
Jury Questions Numbers One and Two

¶ 52 Madison contends that the court abused its discretion by

answering no to jury question number one: “Because these

attempted murder charges are specific to three individuals . . .

[d]oes the defendant have to be attempting murder of one or more of

the specific people in order for a substantial step towards Murder in

the first degree (extreme indifference) to be true?” He also contends

that the court erroneously referred the jury back to instruction

twelve in response to jury question number two, “Are we allowed to

find [Madison] guilty of three, two or only one of the three counts of

attempted murder (extreme indifference)?”

¶ 53 When a jury asks a question, an additional instruction is

“often appropriate” unless

(1) the jurors can be adequately informed by
directing their attention to some portion of the
original instructions;

(2) the request concerns matters not in
evidence or does not pertain to the law of the
case; or

(3) the request would call upon the judge to
express an opinion upon factual matters that
the jury should determine.

22
People v. Frye, 2014 COA 141, ¶ 26, 356 P.3d 1000, 1005 (quoting

Copeland v. People, 2 P.3d 1283, 1288 (Colo. 2000)).

1. Jury Question Number One

a. Standard of Review

¶ 54 We review the court’s response to jury question number one

for an abuse of discretion. See People v. Black, 2020 COA 136,

¶ 13, 490 P.3d 891, 895. “A trial court does not abuse its

discretion unless its decision was manifestly arbitrary,

unreasonable, or unfair or was based on an erroneous

understanding of the law.” People v. Perez, 2024 COA 94, ¶ 34, 559

P.3d 652, 660. “In assessing whether a trial court’s decision is

manifestly unreasonable, arbitrary, or unfair, we ask not whether

we would have reached a different result but, rather, whether the

trial court’s decision fell within the range of reasonable options.”

People v. Archer, 2022 COA 71, ¶ 23, 518 P.3d 1143, 1149-50

(quoting Hall v. Moreno, 2012 CO 14, ¶ 54, 270 P.3d 961, 973).

b. Additional Facts

¶ 55 The court told the attorneys that its initial inclination was to

respond no to question number one. The prosecutor agreed, but

defense counsel asserted that “the answer should be yes.”

23
¶ 56 The court said that Anderson supported its “first response” of

answering no because the case held that “there can be named

victims that are in danger based upon the conduct, but there

doesn’t need to be any specific targeting of or any specific intent to

harm any individuals.” Further, the court said that Anderson

highlighted “the difference between after deliberation or some other

theory of murder in the [first degree] as opposed to extreme

indifference.” The court also said that People v. Reynolds, 252 P.3d

1128 (Colo. App. 2010), and Candelaria supported a no response.

¶ 57 Defense counsel argued that Anderson was distinguishable

because shooting a gun five times was “nothing like secreting a

bomb on an airplane” — an example of “evidence objectively

demonstrating a willingness to take life indiscriminately” noted in

that case. See Anderson, ¶ 13, 442 P.3d at 78-79. For this reason,

defense counsel asked the court to “either answer yes [to jury

question one] or not send an answer back [to the jury] and tell the

jury that they have the instructions that they need.”

¶ 58 The court disagreed and decided to answer no to jury question

number one:

24
I think if a jury is led to believe there needs to
be a specific target involved that essentially
changes the theory, changes the charge to
either a specific intent-like charge or even a
knowing charge as to the specific individual as
opposed to for lack of a better description a
spree charged like this where there’s multiple
rounds being fired, allegedly indiscriminately,
endangering multiple people, and there’s
named people present. And the same thing as
a bomb and naming the people on the plane as
the victims.

c. The Court Did Not Abuse Its Discretion by
Answering No to Jury Question Number One

¶ 59 Madison asserts that the court’s answer to jury question

number one “was a clear misstatement of an essential element of

the crime; the jury did have to find Madison attempted to kill the

named victim in order to convict him.” We disagree.

¶ 60 Unlike intentional first degree murder after deliberation, “the

crime of extreme indifference first degree murder does not require

proof that the defendant intended to cause the death of another.”

Reynolds, 252 P.3d at 1133. Instead, “it requires proof that the

defendant knowingly engaged in conduct that created a grave risk

of death to one or more persons and demonstrated extreme

indifference to the value of human life generally.” Id.

25
¶ 61 To convict a defendant of attempted extreme indifference

murder, “there must be evidence from which a trier of fact can find

that the actor was aware he was engaging in conduct strongly

corroborative of the firmness of his purpose to complete the

commission of the crime of extreme indifference murder.” Montoya,

¶ 17, 394 P.3d at 683. The commission of the crime would be

complete “only if the defendant caused the death of another by

knowingly engaging in conduct creating a grave risk of death to a

person or persons other than himself . . . under circumstances

evidencing an attitude of universal malice manifesting extreme

indifference to the value of human life generally.” Id. at ¶ 17, 394

P.3d at 683-84.

¶ 62 The Anderson court concluded that reasonable jurors could

find that the defendant’s “flurry of gunfire aimed in [the officer’s]

direction,” Anderson, ¶ 17, 442 P.3d at 80, demonstrated a

willingness to take life indiscriminately, “either because it

objectively evidenced a willingness to kill as many as thirteen

bystanders within range of the defendant’s indiscriminate shooting,

or simply because it evidenced a willingness to kill whoever was

pursuing him, in order to draw return fire and be killed himself,” id.

26
at ¶ 20, 442 P.3d at 80. The court noted the evidence from which

the jury “could find that the defendant’s gunfire was not only

capable of reaching” other bystanders but that it “practically

reached” a “highway . . . upon which he had only minutes before

necessarily observed other travelers.” Id.

¶ 63 Accordingly, the jury was not required to find that Madison

attempted to kill each victim before it could convict him of the three

counts of attempted extreme indifference murder. See id. at ¶ 20,

442 P.3d at 80-81; Candelaria, 148 P.3d at 183 (holding that “the

evidence was sufficient to permit a finding that [the defendant and

his associates] were aware their shooting was practically certain to

cause death and was carried out under circumstances evidencing a

willingness to take the lives of others without knowing or caring

who they were”).

¶ 64 Thus, we conclude that the court acted within its discretion

when it answered “no” to jury question number one. See Black,

¶ 13, 490 P.3d at 895; see also Frye, ¶ 22, 356 P.3d at 1005.

27
2. Jury Question Number Two

a. Additional Facts

¶ 65 The prosecutor asserted that the court should answer yes to

jury question number two. Defense counsel argued that the answer

to the question was “adequately described in the instruction packet

that was already provided by the [c]ourt to the jury” and that the

court “could just indicate to the jury that they have all the

instructions they need.”

¶ 66 The court agreed with defense counsel and said it would refer

the jury to jury instruction twelve, which tracked the model

instruction:

In this case a separate offense is charged
against the defendant in each count of the
information. Each count charges a separate
and distinct offense and the evidence and the
law applicable to each count should be
considered separately, uninfluenced by your
decision as to any other count. The fact that
you may find the defendant guilty or not guilty
of one of the offenses charged, should not
control your verdict as to any other offense
charged against the defendant.

The defendant may be found guilty or not
guilty of any one or all of the offenses charged.

28
See COLJI-Crim. E:12 (2022). Defense counsel said this response

“ma[de] sense.” Accordingly, the court responded to jury question

number two by referring the jury to jury instruction twelve.

b. Madison Invited Any Error Regarding
Jury Question Number Two

¶ 67 Madison contends that the court’s answer to jury question

number two was “erroneous and obvious because it was apparent

Instruction No. 12 could not clarify the jury’s confusion; it did not

explain the jury had to find Madison had to attempt to take the life

of the named victim.”

¶ 68 We conclude that Madison invited any error regarding the

court’s response to jury question number two because the court

adopted the defense’s proposed response, and defense counsel

expressly agreed with the court’s language.

¶ 69 “The invited error doctrine prevents a party from appealing an

error that he or she invited or injected into the case.” People v.

Butler, 251 P.3d 519, 522 (Colo. App. 2010). It “is narrow and

applies only to errors in trial strategy but not to errors that result

from oversight or attorney incompetence.” Id. “[I]nvited error bars

29
relief on direct appeal.” People v. Tee, 2018 COA 84, ¶ 27, 446 P.3d

875, 881.

¶ 70 Defense counsel invites any error in a jury instruction or an

answer to a jury question by actively participating in drafting it.

See People v. Jacobson, 2017 COA 92, ¶¶ 48-52, 474 P.3d 1222,

1230 (holding that defense counsel invited the alleged error by

“actively participat[ing]” in drafting the challenged instruction and

answer to the jury question and by acquiescing in the instruction);

People v. Hoover, 165 P.3d 784, 796 (Colo. App. 2006) (“Active

participation in the preparation of a response to a jury question, or

express agreement with it, bars the participant from arguing that

the response constitutes error.”).

¶ 71 Even if defense counsel did not actively participate in drafting

the challenged jury instruction, the invited error doctrine applies if

defense counsel “expressly acquiesce[d]” in it. Horton v. Suthers, 43

P.3d 611, 619 (Colo. 2002); see Butler, 251 P.3d at 523 (Defense

counsel’s response to the court’s instruction, “That’s fine with me,”

invited the alleged error and precluded the defendant “from

claiming on appeal that the court acted in error.”).

30
¶ 72 Because Madison’s counsel participated in the formulation of

the court’s response to jury question number two and then told the

court the response “ma[de] sense,” we hold that Madison is barred

from challenging the response on appeal. See Hoover, 165 P.3d at

796.

D. The Prosecution Did Not Commit Misconduct
During Closing Argument

¶ 73 Madison contends that the prosecutor committed misconduct

during closing argument when she described how an initial

aggressor can effectively communicate his or her intent to withdraw

from the encounter and thereby establish that his or her use of

physical force was justified. See § 18-1-704(3)(b), C.R.S. 2024. We

disagree.

1. Preservation and Standard of Review

¶ 74 “We engage in a two-step analysis when reviewing claims of

prosecutorial misconduct.” People v. Licona-Ortega, 2022 COA 27,

¶ 85, 511 P.3d 721, 736. “First, we determine whether the

prosecutor’s conduct was improper based on the totality of the

circumstances.” Id. “Second, we decide whether the misconduct

31
warrants reversal under the applicable standard.” Id. at ¶ 85, 511

P.3d at 736-37.

¶ 75 “When determining whether a prosecutor’s statements were

improper and whether reversal is warranted, we may consider the

language used, the context of the statements, the strength of the

evidence, whether the prosecutor improperly appealed to the jurors’

sentiments, whether the misconduct was repeated, and any other

relevant factors.” People v. Liebler, 2022 COA 21, ¶ 51, 510 P.3d

548, 559.

¶ 76 The parties agree that Madison did not preserve his

prosecutorial misconduct argument. See Licona-Ortega, ¶ 88, 511

P.3d at 737. And “[p]rosecutorial misconduct rarely constitutes

plain error.” People v. Carter, 2015 COA 24M-2, ¶ 53, 402 P.3d

480, 491.

2. Additional Facts

¶ 77 The prosecutor discussed self-defense and the initial aggressor

exception during her initial closing argument. The prosecutor said:

We discussed this in jury selection as well. If
you — I don’t want to use the word provoked
because that may connote something different
legally, but if you started the altercation, if you
were the first person to use force in an

32
altercation, you may not then claim self-
defense unless you communicate to the people
with whom you’re engaged in this encounter
that you know what, I’m done. I started this
altercation. Things have escalated to an
uncomfortable level. I’m done. I’m out of here.
If those people then persist in their use of
force, you may then claim self-defense.
Hopefully that makes sense.

Here, of course, our position is that [Madison]
was the initial aggressor. He was the first
person to begin the use of force in this
confrontation.

Defense counsel did not object.

3. The Prosecutor Did Not Engage in Misconduct

¶ 78 “[A] prosecutor must have ‘wide latitude in the language and

presentation style used to obtain justice,’” but “while a prosecutor is

‘free to strike hard blows,’ she ‘is not at liberty to strike foul ones.’”

People v. Buckner, 2022 COA 14, ¶ 19, 509 P.3d 452, 458 (quoting

Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005)).

¶ 79 “Closing argument may properly include the facts in evidence

and the reasonable inferences drawn from those facts, as well as

the law on which the jury has been instructed.” Id. at ¶ 18, 509

P.3d at 458. “[B]ecause arguments delivered in the heat of trial are

not always perfectly scripted reviewing courts accord prosecutors

33
the benefit of doubt where remarks are ‘ambiguous’ or simply

‘inartful.’” People v. McBride, 228 P.3d 216, 221 (Colo. App. 2009)

(citations omitted) (first quoting Donnelly v. DeChristoforo, 416 U.S.

637, 646-47 (1974); and then quoting Domingo-Gomez, 125 P.3d at

1051).

¶ 80 “A prosecutor must not ‘intentionally misstate the evidence or

mislead the jury as to the inferences it may draw’ from that

evidence.” Buckner, ¶ 18, 509 P.3d at 458 (quoting Domingo-

Gomez, 125 P.3d at 1049). In addition, “[i]t is improper for counsel

to misstate the law or ‘misinterpret[] for the jury how the law should

be applied to the facts’ during closing argument.” People v. Monroe,

2020 CO 67, ¶ 16, 468 P.3d 1273, 1276 (quoting People v. Sepeda,

581 P.2d 723, 732 (Colo. 1978)).

¶ 81 Madison contends that the prosecutor committed misconduct

by telling the jury it “could only find Madison withdrew from the

altercation if he verbally communicated his withdrawal to the three

assailants. The prosecutor explained by example Madison had to

communicate his withdrawal verbally.” We disagree because

Madison does not accurately characterize the challenged statement.

34
¶ 82 First, the prosecutor never said that Madison was required to

communicate his withdrawal orally. The prosecutor indeed said

that a person who “started the altercation” may not claim self-

defense unless the person communicated, “I’m done. I started this

altercation. Things have escalated to an uncomfortable level. I’m

done. I’m out of here.” But the prosecutor said neither that the

initial aggressor must convey this message orally nor that the

aggressor cannot communicate the message through conduct. The

message that the prosecutor described can be expressed either

through words or conduct.

¶ 83 Second, the prosecutor did not provide an example of the

words Madison needed to utter to inform the victims that he was

withdrawing from the altercation. Rather, the prosecutor made the

point that any assertion, whether through words or conduct, that

communicated, “I’m done. I’m out of here,” would signal the

person’s withdrawal from the altercation. Even if the prosecutor’s

words were unclear, we do not “lightly infer that a prosecutor

intends an ambiguous remark to have its most damaging meaning

or that a jury, sitting through lengthy exhortation, will draw that

meaning from the plethora of less damaging interpretations.”

35
People v. Gomez-Garcia, 224 P.3d 1019, 1025 (Colo. App. 2009)

(quoting Donnelly, 416 U.S. at 646-47).

¶ 84 Accordingly, the prosecutor’s argument was consistent with

the statutory “initial aggressor” language. § 18-1-704(3)(b)

(providing that a person is not justified in using physical force in

self-defense if he is the initial aggressor except that his “use of

physical force upon another person under the circumstances is

justifiable if he . . . withdraws from the encounter and effectively

communicates to the other person his . . . intent to do so, but the

latter nevertheless continues or threatens the use of unlawful

physical force”) (emphasis added).

¶ 85 For these reasons, the prosecutor did not engage in

misconduct. See Licona-Ortega, ¶ 85, 511 P.3d at 736.

E. The Cumulative Error Doctrine Does Not Apply

¶ 86 Generally, errors “afford no grounds for reversal of a judgment

where the guilt of the defendant has been clearly proven.” Oaks v.

People, 371 P.2d 443, 445-46 (Colo. 1962). However, we will

reverse if the errors “result in ‘prejudice to the substantial rights of

the defendant.’” Id. at 446 (quoting Cliff v. People, 269 P. 907, 910

(Colo. 1928)); see also Howard-Walker v. People, 2019 CO 69, ¶ 25,

36
443 P.3d 1007, 1011 (“Stated simply, cumulative error involves

cumulative prejudice.”).

¶ 87 “[R]egardless of whether any error was preserved or

unpreserved,” reversal is “warranted when numerous errors in the

aggregate show the absence of a fair trial, even if individually the

errors were harmless or did not affect the defendant’s substantial

rights.” Howard-Walker, ¶ 26, 443 P.3d at 1012; see also People v.

Lucero, 615 P.2d 660, 666 (Colo. 1980) (reversing the judgment

because “the cumulative effect of the[] errors and defects

substantially affected the fairness of the trial proceedings and the

integrity of the fact-finding process”). “[T]he question is not whether

the errors were ‘brief’ or ‘fleeting’ but whether, viewed in the

aggregate, the errors deprived the defendant of a fair trial.”

Howard-Walker, ¶ 40, 443 P.3d at 1014. “A defendant, although

not entitled to a perfect trial, has a constitutional right to receive a

fair trial.” People v. Rivera, 56 P.3d 1155, 1168 (Colo. App. 2002).

¶ 88 We identified at most one error. But as we explained above,

defense counsel invited this error, which concerned the court’s

response to jury question number two. Supra Part II.C.2.b.

Madison is not entitled to reversal of his conviction based on an

37
invited error. See Tee, ¶ 27, 446 P.3d at 881. In any event, “a

single error is insufficient to reverse under the cumulative error

standard.” People v. Thames, 2019 COA 124, ¶ 69, 467 P.3d 1181,

1194.

¶ 89 Thus, we conclude that there is no cumulative error.

III. Disposition

¶ 90 The judgment of conviction is affirmed.

JUDGE PAWAR and JUDGE LUM concur.

38