Peo v. Banks

23CA1700 Peo v Banks 05-28-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1700
Adams County District Court No. 22CR889
Honorable Kyle Seedorf, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Hayden Allen Banks,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE SCHOCK
Grove and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 28, 2026

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

Megan A. Ring, Colorado State Public Defender, Dilyn K. Myers, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Hayden Allen Banks, appeals his conviction for

second degree murder. He argues, among other things, that the

district court reversibly erred in instructing the jury on the right of

a trespasser to use physical force in self-defense. Because we

agree, we reverse the conviction and remand for a new trial.

I. Background

¶2 David Islas was a resident at the Venture Inn hotel. He and

Banks were friends, having known each other for many years. One

night, Banks went to Islas’s room to retrieve a counterfeit $100 bill.

¶3 Surveillance footage shows Banks leaving Islas’s room and

standing just outside the door talking to Islas for a couple minutes.

When Islas re-entered the room (and was no longer visible on video),

Banks stepped into the doorway, with one foot inside, and remained

there for several more minutes — apparently still talking to Islas.

¶4 After about ten minutes, the door began to close from the

inside, while Banks kept his foot in the doorway. Seconds later, as

the door closed, Banks drew a gun, reached into the room, and

fatally shot Islas. In a subsequent police interview, Banks claimed

that Islas had pointed a gun at his head and that he had drawn his

1
own gun in response, accidentally firing when the door closed on

his arm. A gun was found next to Islas’s body after the shooting.

¶5 Banks was charged with first degree murder. At trial, there

was no dispute that he shot and killed Islas. But he argued he had

acted in self-defense. The prosecution countered that Banks was

not entitled to claim self-defense because Islas was legally

authorized to use force to defend his premises. A jury convicted

Banks of second degree murder as a lesser included offense.

II. Defense of Premises Instruction

¶6 Banks contends that the district court erred by (1) instructing

the jury on defense of premises and (2) including in that instruction

that a trespasser who is subject to lawful physical force has no

privilege to use physical force in self-defense. Because we agree

with Banks’s second argument, we address that argument first.

A. Additional Background

¶7 At Banks’s request, the district court instructed the jury on

self-defense. Consistent with section 18-1-704(1), C.R.S. 2025, the

instruction provided that Banks was legally authorized to use

physical force “to defend himself . . . from what he reasonably

believed to be the use or imminent use of unlawful physical force.”

2
¶8 The prosecution requested an instruction on the use of

physical force in defense of premises under section 18-1-705,

C.R.S. 2025. The instruction provided that Islas was legally

authorized to use physical force as “reasonably necessary to prevent

or terminate what he reasonably believed was the commission or

attempted commission of an unlawful trespass.” The instruction

also included a definition of trespass and attempted trespass.

¶9 Defense counsel objected. Noting that Banks had not been

charged with trespass, he argued there was not sufficient evidence

to support the instruction because there was no evidence that

Banks had trespassed. The prosecutor responded that the video

alone was sufficient to establish a trespass because it showed Islas

“closing the door and [Banks] put[ting] his foot out to block that.”

¶ 10 The district court agreed to give the instruction, explaining

that a trespass “includes remaining on the premises of someone

else when you are not wanted.” It ruled that Islas’s attempt to close

the door, along with Banks’s statement that he was “hit in the

arms” and “bruised,” provided a basis for the instruction.

¶ 11 The prosecutor then requested a separate instruction, based

on People v. Toler, 9 P.3d 341, 353 (Colo. 2000), that “when a

3
person is a trespasser . . . they no longer get to avail themselves of

self-defense.” Defense counsel continued to object to any

instruction involving trespass, but given the court’s ruling on the

defense of premises instruction, he asked the court to choose

between the two instructions, asserting that there was “a lot of

duplicative language.” The court proposed adding the requested

language from Toler at the end of the defense of premises

instruction. Without waiving his objection to any trespass

instruction at all, defense counsel agreed to that approach.

¶ 12 The district court gave the following defense of premises

instruction at trial:

The evidence presented in this case has raised
the issue of “physical force in defense of
premises.”

Mr. Islas was legally authorized to use physical
force upon another person if:

1. Mr. Islas was in possession or control of
any building, realty, or other premises,
and

2. Mr. Islas used reasonable and
appropriate physical force, when and to
the extent it was reasonably necessary to
prevent or terminate what he reasonably
believed was the commission or
attempted commission of an unlawful

4
trespass by the other person in or upon
the building, realty, or premises.

A trespass occurs when a person knowingly
and unlawfully enters or remains in or upon
any premises of another. An attempted
trespass occurs when a person is engaged in
conduct constituting a substantial step toward
the commission of trespass.

A trespasser who is subjected to lawful
physical force by the owner or occupant of
property or premises has no privilege to use
physical force in self-defense because the
privilege applies only when a person faces
unlawful force.

B. Applicable Law and Standard of Review

¶ 13 The district court must correctly instruct the jury on all

matters of law for which there is evidentiary support. Castillo v.

People, 2018 CO 62, ¶ 34. When the court instructs the jury on the

affirmative defense of self-defense, it must also instruct the jury on

any exception to that defense that is supported by “some evidence.”

Galvan v. People, 2020 CO 82, ¶ 25. “Some evidence” means

evidence that would support a “reasonable inference” that the

exception applies. People v. Roberts-Bicking, 2021 COA 12, ¶ 31.

¶ 14 We review de novo whether the evidence was sufficient to

support a requested jury instruction and whether the jury

instructions as a whole accurately informed the jury of the

5
governing law. O’Shaughnessy v. People, 2012 CO 9, ¶ 13; Garcia

v. People, 2022 CO 6, ¶ 16. If the instructions correctly state the

applicable law, we review the district court’s decision to give or deny

a particular instruction for an abuse of discretion. Garcia, ¶ 18.

¶ 15 Although Banks preserved his argument that the defense of

premises instruction should not have been given at all, he did not

object to the content of the instruction, including its final sentence

that he challenges on appeal. We therefore review the inclusion of

that language for plain error. See Martinez v. People, 2015 CO 16,

¶ 15 (holding that objection to giving of instruction did not preserve

argument that instruction was legally erroneous). For an error to

be plain, it must be both obvious and substantial. Hoggard v.

People, 2020 CO 54, ¶ 13. To satisfy this standard, Banks must

show not only that the instructional error “affected a substantial

right, but also that the record reveals a reasonable possibility that

the error contributed to his conviction.” Id. (citation omitted).

C. Right of Trespasser to Self-Defense

¶ 16 Banks contends that the district court reversibly erred by

instructing the jury that “[a] trespasser who is subjected to lawful

physical force by the owner or occupant of property or premises has

6
no privilege to use physical force in self-defense because the

privilege applies only when a person faces unlawful force.” Because

this instruction omits consideration of the trespasser’s reasonable

belief that the occupant’s force was unlawful — a principle of

particular significance under the facts of this case — we agree.

1. Error

¶ 17 Section 18-1-704(1) defines the affirmative defense of self-

defense:

[A] person is justified in using physical force
upon another person 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, and he
may use a degree of force which he reasonably
believes to be necessary for that purpose.

(Emphasis added.) The “touchstone” of self-defense is “[a]

reasonable belief that one is defending against the use of unlawful

force.” People v. Hayward, 55 P.3d 803, 805 (Colo. App. 2002).

¶ 18 The nature of that right does not change for a trespasser. See

Toler, 9 P.3d at 352 (“[T]respassers do not forfeit their rights to self-

defense merely by the act of trespassing.”). Although the trespass

may make the property occupant’s use of “reasonable and

appropriate physical force” lawful under section 18-1-705, the

7
question is not simply whether the force is lawful. It is whether the

trespasser reasonably believes it is not — or reasonably believes

that unlawful force is imminent. § 18-1-704(1). Thus, a trespasser

surrenders the right to use physical force in self-defense only if the

property occupant’s use of force was lawful and the trespasser did

not reasonably believe otherwise. See Hayward, 55 P.3d at 805.

¶ 19 The problem with the jury instruction in this case is that it

omitted the second half of this inquiry. That omission was

particularly problematic under the facts of this case because the

jury reasonably could have found that, even if Islas’s use of force

was lawful, Banks reasonably believed it was not. In particular, a

person may not lawfully use deadly force in the defense of premises

except under circumstances not present in this case.1 See

§§ 18-1-704.5(2),18-1-705, C.R.S. 2025. But Banks claimed that

Islas had pointed a gun at his head. Even though Islas did not

1 The district court did not instruct the jury on when deadly force

can (and cannot) be used in the defense of premises. And Banks
does not directly challenge that omission on appeal. But because
Banks is presumed to know the law, see People v. Hayward, 55
P.3d 803, 806 (Colo. App. 2002), those limitations nevertheless
inform whether he could have reasonably believed Islas’s imminent
use of force was unlawful, even if the jury found that it was not.

8
shoot — and thus, did not in fact use deadly force — a jury could

have found that Banks reasonably believed such force was

imminent. In that case, Banks would have been justified in using

physical force — including deadly physical force — in self-defense.

See § 18-1-704(1), (2)(a); cf. People v. Chirico, 2012 COA 16, ¶¶ 9-10

(holding that, even if the victim lawfully used force to effect a

citizen’s arrest, the defendant had a right to self-defense if he

reasonably believed the force used or threatened was not in

furtherance of a lawful citizen’s arrest).

¶ 20 That is how this case differs from the passage in Toler from

which the language of the instruction was drawn. See Toler, 9 P.3d

at 352-53. That passage addressed a person’s right to use deadly

force against a trespasser under section 18-1-704.5 and the last

sentence of section 18-1-705. Those statutes prescribe

circumstances — not present here — under which a property

occupant may use any degree of physical force, including deadly

force. See §§ 18-1-704.5(2), 18-1-705. Thus, because a trespasser

is presumed to know the law, the trespasser would have no reason

to believe the occupant’s use of deadly force was unlawful when

those circumstances are present. See Hayward, 55 P.3d at 806;

9
see also Chirico, ¶ 16 (“[U]nlike under section 18-1-704.5(2), where

any force used by a dwelling’s occupant against a trespasser is

unlawful, and thus self-defense is never justified, under section

18-1-704, the relevant inquiry remains the person’s reasonable

belief . . . that he or she is faced with unlawful force . . . .”). In any

event, notwithstanding the language in Toler that “a trespasser who

is subjected to lawful physical force . . . has no privilege to use

physical force in self-defense,” its broader holding was that a

trespasser “retains the privilege to use force in self-defense” in

accordance with section 18-1-704. Toler, 9 P.3d at 352, 353.

¶ 21 The instructional error in this case is similar to that in Chirico.

In Chirico, the defendant claimed self-defense, and the prosecution

argued the victim’s use of force was a lawful attempt to effect a

citizen’s arrest. Chirico, ¶ 5. Although the district court correctly

instructed the jury on self-defense and the law of citizen’s arrest, it

also instructed the jury that “it is presumed that the defendant

knew the person could employ lawful force against him if the

defendant committed a crime in the person’s presence.” Id. at ¶¶ 5,

10. The division held that the instruction was erroneous because

(1) it may have misled the jury to assume that, if the defendant had

10
broken the law, he would have reasonably recognized the force used

by the victim as lawful; and (2) it “may have precluded the jury from

considering whether, under the circumstances as a whole, it was

reasonable for [the] defendant to believe that the victim’s use of

force was not in furtherance of an arrest.” Id. at ¶ 14.

¶ 22 Similarly, in this case, though the court correctly instructed

the jury on self-defense and defense of premises, it then indicated

that the sole issue was whether Islas’s use of force was lawful. This

“precluded the jury from considering whether, under the

circumstances as a whole, it was reasonable for [Banks] to believe”

otherwise. Id. Contrary to what the jury was told, self-defense does

not “appl[y] only when a person faces unlawful force.” It also

applies when a person reasonably believes they face unlawful force.

¶ 23 The People point out that the self-defense jury instruction did

incorporate the concept of reasonable belief, correctly explaining

that the defendant was legally authorized to use physical force to

defend himself “from what he reasonably believed to be the use or

imminent use of unlawful physical force.” The problem, however, is

that the final sentence of the defense of premises instruction told

the jury that the right to self-defense does not apply when a

11
trespasser is “subjected to lawful physical force” by the occupant.

Thus, if the jury found that Islas’s use of force was lawful, it would

have had no reason to consider the self-defense instruction.

¶ 24 We also reject the People’s contention that the limitations on

the use of deadly force in the defense of premises are irrelevant in

this case because Banks did not die — and thus, by definition, Islas

did not use deadly force. See People v. Ferguson, 43 P.3d 705, 707

(Colo. App. 2001); § 18-1-901(3)(d), C.R.S. 2025 (defining deadly

force as force “which does, in fact, produce death”). Banks was

entitled to defend himself from what he reasonably believed to be

the use or imminent use of unlawful force. § 18-1-704(1). Thus,

the question was not whether Islas actually used unlawful deadly

force. It was whether Banks reasonably believed he was about to.

2. Obvious and Substantial

¶ 25 We further conclude that the instructional error was obvious,

even though the language mirrored language in Toler. See Evans v.

People, 706 P.2d 795, 800 (Colo. 1985) (noting that “use of an

excerpt from an opinion in an instruction is generally an unwise

practice”). Colorado law is clear that the right to self-defense turns

not on whether the victim actually used or intended to use unlawful

12
physical force but on “whether, under the totality of the

circumstances, it was reasonable” for the defendant to believe that

they did. Kaufman v. People, 202 P.3d 542, 551 (Colo. 2009); see

also Hayward, 55 P.3d at 805 (noting that the “touchstone of self-

defense” is the defendant’s reasonable belief). And Toler confirms

that a trespasser does not surrender this right. 9 P.3d at 352. By

placing the focus solely on the actual lawfulness of Islas’s actions

rather than on Banks’s reasonable perception of those actions, the

district court obviously erred. See Kaufman, 202 P.3d at 551.

¶ 26 For the reasons above, we also conclude that the error was

substantial. Banks’s theory of defense was that Islas had pointed a

gun at him, prompting Banks to shoot in self-defense. But the jury

instruction precluded the jury from considering that defense if it

found that Banks had trespassed. The prosecutor then reinforced

this error in closing argument by repeatedly arguing that Banks

had no right to self-defense if Islas’s conduct was lawful. See Toler,

9 P.3d at 354 (holding that instructional error was plain error where

prosecutor “focus[ed] the jury on the erroneous portion” of the

instruction by telling the jury the defendant was “not entitled to

claim self-defense because he was a trespasser”). For example, the

13
prosecutor told the jury that (1) if Banks trespassed, “any force

[Islas] used against [Banks] . . . is lawful”; (2) in that case, “Banks

doesn’t get the benefit of self-defense”; (3) “if [Islas] is lawfully

protecting himself and his property, [self-defense] doesn’t apply”;

and (4) Banks “is a trespasser. He’s not entitled to self-defense.”

These statements were all legally incorrect, as explained above.

¶ 27 The People contend that the error was not substantial because

the evidence of guilt was strong. But the evidence they cite does

little more than show that Banks shot and killed Islas — a point

that was not in dispute. The question was whether he did so in

self-defense. And because Islas does not appear in the video, the

evidence on that point was “far from overwhelming.” People v.

Sloan, 2024 COA 52M, ¶ 52; see also People v. McClelland, 2015

COA 1, ¶ 26 (concluding that district court plainly erred by failing

to properly instruct jury on self-defense where self-defense was the

“primary issue at trial”). To the contrary, “the particular facts in

this case may have supported a jury’s acceptance of [Banks’s] self-

defense claim had it not been limited in its consideration” of that

defense. Kaufman, 202 P.3d at 551. We therefore conclude that

14
there is “a reasonable possibility that the error contributed to

[Banks’s] conviction,” and we reverse that conviction. Id. at 551-52.

D. Evidence of Trespass

¶ 28 Banks also argues that the district court erred by giving a

defense of premises instruction because there was insufficient

evidence that he trespassed. Because this issue is likely to arise on

remand to the extent the instruction was based on the surveillance

video, we address it, even though we are reversing Banks’s

conviction. See Venalonzo v. People, 2017 CO 9, ¶ 2 n.2.

¶ 29 Although a close call, we conclude that the video was sufficient

to support the instruction. Under section 18-1-705, a person may

use “reasonable and appropriate physical force upon another

person when and to the extent that it is reasonably necessary to

prevent or terminate what he reasonably believes to be the

commission or attempted commission of an unlawful trespass.” A

person commits trespass “if such person unlawfully enters or

remains in or upon premises of another,” § 18-4-504(1), C.R.S.

2025 — that is, “when the person is not licensed, invited, or

otherwise privileged to do so,” § 18-4-201(3), C.R.S. 2025.

15
¶ 30 The video showed Banks standing with one foot in Islas’s room

— where Islas lived — for several minutes. At one point, the door

started to close from the inside. As it did, Banks stepped backward

but kept his foot in the doorway, preventing the door from closing.

He then reached his arm into the doorway, again stopping the door

from fully closing. A jury could reasonably infer from this evidence

that Islas told Banks to leave — i.e., revoked his invitation to

remain in the room — and Banks refused to do so. See Roberts-

Bicking, ¶ 31. That is a trespass.2 See §§ 18-4-504(1), 18-4-201(3).

¶ 31 Banks maintains that the five seconds between the door

starting to close and the shooting was too brief to show a volitional

act of trespass. See § 18-1-501(9), C.R.S. 2025 (“‘Voluntary act’

means an act performed consciously as a result of effort or

determination . . . .”). We disagree. Banks neither left nor

attempted to leave when the door began to close. Instead, the video

captures three distinct phases, albeit occurring in a matter of

seconds: (1) the door begins to close; (2) Bank steps back; and

2 The People do not argue that the evidence was sufficient to show

that Banks was trespassing in the minutes before Islas attempted
to shut the door, as Banks stood half-in, half-out of Islas’s room.

16
(3) Bank places his foot to block the door from closing. At a

minimum, that third step was sufficient to support a finding that

Banks voluntarily remained after he was told to leave.

¶ 32 In reaching this conclusion, we acknowledge that Banks’s

actions are “open to different . . . reasonable[] interpretations” —

including the view that he did not voluntarily remain on the

premises when he left five seconds after he was told to leave.

Roberts-Bicking, ¶ 40. But when the evidence permits “conflicting

reasonable inferences,” the jury must choose between them as part

of its “fact-finding function.” People v. Perez, 2016 CO 12, ¶ 31. By

instructing the jury on the definition of trespass, the district court

“appropriately provided the jury with a necessary legal principle to

permit it to perform that function.” Roberts-Bicking, ¶ 40.

¶ 33 We therefore conclude that the district court did not err by

instructing the jury on physical force in the defense of premises.

III. Banks’s Statements to Police

¶ 34 Banks raises two issues concerning the admission of his

recorded police interview. First, he argues that the district court

erred by denying his motion to suppress his statements. Second,

he contends that, after admitting the interview, the court erred by

17
granting the prosecution’s request to redact certain statements

Banks made during that interview. Because the admissibility of

Banks’s statements is likely to arise on retrial, we address these

issues.3 See Venalonzo, ¶ 2 n.2. We perceive no error.

A. Additional Background

¶ 35 After his arrest, Banks was taken to the police station and

interrogated by two detectives. Before asking any questions, one of

the detectives read Banks his constitutional rights under Miranda v.

Arizona, 384 U.S. 436 (1966), and asked Banks if he understood

those rights. Banks nodded. The detective then asked Banks if he

agreed to talk to them. Banks responded:

[T]his is a pretty serious charge that you guys
are comin’ at me with, but like . . . I mean I
don’t wanna lose my chance to like be able to
talk, but I also feel like I should have an
(inaudible) [attorney] . . . so it’s kinda like a
catch-22. Like I know if I ask for an attorney,
you guys will bring me right back out there,
and I won’t get this . . . any chance of like see
why (inaudible) like talk to about this shit you

3 Because we are reversing Banks’s conviction based on the

instructional error, we need not address his cumulative error
argument. See Howard-Walker v. People, 2019 CO 69, ¶ 25
(explaining that cumulative error may require reversal when no
single error prejudices the defendant’s substantial rights).

18
know what I mean. Like I just feel like . . . it’s
a fucked-up situation like.

¶ 36 The detective replied that it was “ultimately [Banks’s] choice”

and that Banks “need[ed] to figure out what’s best for [him].” He

explained that he could not “try to talk [Banks] into . . . making one

choice or another” and that Banks was going to jail either way.

¶ 37 Banks agreed to talk. After about fifteen minutes, the

detectives told Banks they had a video of him shooting Islas. When

Banks asked to see it, one detective raised his voice and said:

We’ll go get it, ‘k. ‘Cause you’re lying through
your fucking teeth right now, ‘k. ‘Cause you
damn near slipped right there when you said,
we didn’t, we wasn’t arguing. That was about
to come out of your mouth, ‘k. Be a man, own
up to what you did, ‘k and tell us what the hell
happened. It’s very simple. We know it was
you . . . .

¶ 38 The other detective then told Banks they knew he had told a

friend that he had killed someone at the Venture Inn. One detective

said, “We’re not playing games here” and urged Banks to “[j]ust tell

[them] the truth.” Banks began crying and said, “What, so I can go

to prison for the rest of my life?” The detective responded, “What

[do you] think[’]s gonna happen anyway? But at least you can tell

us and get it off your chest.” Banks then confessed to killing Islas.

19
¶ 39 Banks moved to suppress his statements during the police

interrogation. He argued that his Miranda waiver was not knowing

and intelligent because his comment about not wanting to “lose

[his] chance to . . . be able to . . . talk” but feeling like he should

have an attorney reflected a misunderstanding of his right to have

an attorney present while he spoke to police. He also argued that

the detectives’ “power play” and “manipulation” made his Miranda

waiver and subsequent statements involuntary.

¶ 40 The district court denied the motion to suppress after an

evidentiary hearing. It first concluded that the Miranda waiver was

valid, finding that (1) Banks fully understood his Miranda rights,

including his right to an attorney; (2) Banks’s statements

“reflect[ed] strong knowledge” of the consequences of his decision to

speak; and (3) although the interrogation “did become aggressive at

certain points,” nothing the detectives did “was designed to

overbear” Banks’s will. The court also found that Banks’s

“statements throughout [the interrogation] were made voluntarily.”

¶ 41 Before trial, the prosecution moved to redact certain of

Banks’s statements as improper evidence of Islas’s character. Two

of those proposed redactions are relevant to this appeal.

20
1. Redaction 2: “He (inaudible) like when he
gets really high he kinda talks a little crazy
and you can ask anybody over there like
. . . .”

2. Redaction 9: “[W]hen his head gets so
fucked up and he thinks that he’s seeing
people and demons and stuff like that, you
don’t know what he’s gonna do . . . like you
really don’t and that’s why he’ll kidnap
people and hold them hostage in his room
. . . because he thinks that they’re a demon.
. . . So, it’s like he had mental issues . . .
and like I know about ’em like, like I said
[Islas] used to be different . . . back in the
day and like that’s kinda why I’ve been
hesitant to go over there and like he has
been suicidal. He has been like fucked up
in the head. Like, I feel bad for [Islas] . . . .”

¶ 42 Defense counsel objected to the redactions, arguing that the

statements were relevant to Banks’s claim of self-defense because

they showed his state of mind at the time of the shooting and his

knowledge of Islas’s prior violent acts.

¶ 43 The district court granted the redactions. For redaction 2, the

court concluded that Islas’s “[c]haracter for talking crazy because of

being high” did not involve a violent act and therefore was not

relevant to self-defense. For redaction 9, the court found that the

statement extended “far beyond [Banks’s] fear for his own safety”

and addressed Islas’s unrelated mental health issues. The court

21
also ruled that, to the extent the statement addressed Islas’s act of

kidnapping people, it was cumulative of other evidence.

¶ 44 The day before trial, the prosecution notified the defense that

it no longer intended to introduce the recording of Banks’s

interrogation at trial. The defense introduced the redacted video.4

B. Motion to Suppress

¶ 45 Banks contends that his statements should have been

suppressed on two grounds: (1) his Miranda waiver was not

knowing, intelligent, and voluntary because he misunderstood his

constitutional rights; and (2) his statements were not voluntary

because the detectives’ conduct was coercive. We disagree.

1. Standard of Review and Applicable Law

¶ 46 A ruling on a motion to suppress is a mixed question of fact

and law. People v. Ashford, 2020 CO 16, ¶ 9. In reviewing such a

ruling, we defer to the district court’s factual findings if they are

supported by the record and review the legal effect of those facts de

4 The district court concluded that the prosecution’s last-minute

decision not to introduce the interrogation video effectively left
Banks with no choice under the circumstances but to introduce it
himself. The People do not argue that Banks waived his challenge
to the denial of his motion to suppress by introducing the video.

22
novo. People v. Taylor, 2018 CO 35, ¶ 7. Both the validity of a

Miranda waiver and the voluntariness of a defendant’s statements

are legal questions that we review de novo. People v. Smiley, 2023

CO 36, ¶ 12; Effland v. People, 240 P.3d 868, 878 (Colo. 2010).

¶ 47 A Miranda waiver is valid only if it is knowing, intelligent, and

voluntary. Smiley, ¶ 15. A waiver is knowing and intelligent if it is

“made with a full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it.”

Id. at ¶ 16 (citation omitted). But the defendant need not

“understand every consequence” of the waiver. People v. Al-Yousif,

49 P.3d 1165, 1169 (Colo. 2002). It is enough that the defendant

“minimally understood that he did not have to talk to the police,

that he could request a lawyer, and that, if he spoke, what he said

could be used against him to obtain a conviction.” Id. at 1172.

¶ 48 A waiver is voluntary if it is “the product of a free and

deliberate choice rather than intimidation, coercion, or deception.”

Smiley, ¶ 16 (citation omitted). A waiver is involuntary only if

“‘coercive police activity’ . . . ‘played a significant role in inducing’”

the waiver. Id. at ¶¶ 20-21 (citations omitted). This inquiry turns

on the totality of the circumstances, including but not limited to the

23
defendant’s “age, education, background, and intelligence; his

experience with the criminal justice system; how his Miranda rights

were explained and when they were given; whether the detectives

engaged in any potentially coercive conduct; and the timing of the

alleged misconduct.” Id. at ¶ 34. If a Miranda waiver is invalid, the

defendant’s statements must be suppressed. Id. at ¶¶ 44-45.

¶ 49 Moreover, even if a Miranda waiver is valid, the defendant’s

statements must be suppressed if those statements are involuntary.

People v. Zadran, 2013 CO 69M, ¶ 9; see also Smiley, ¶ 18 (noting

that voluntariness of statements and voluntariness of waiver are

“analytically distinct” (citation omitted)). A statement is involuntary

if the police conduct overbore the defendant’s will and elicited a

statement that was “not freely self-determined.” People v. Ramadon,

2013 CO 68, ¶ 20. Like an involuntary waiver, that determination

requires two findings: (1) “the police conduct must have been

coercive,” and (2) “the coercive police conduct must have played a

significant role in inducing the statements.” Id. In conducting this

inquiry, we consider the totality of the circumstances, including

(1) whether the defendant was in custody;

(2) whether the defendant was free to leave;

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(3) whether the defendant was aware of the situation;

(4) whether the police read Miranda rights to the defendant;

(5) whether the defendant understood and waived Miranda

rights;

(6) whether the defendant had an opportunity to confer with

counsel or anyone else prior to or during the

interrogation;

(7) whether the statement was made during the

interrogation or volunteered later;

(8) whether the police threatened the defendant or promised

anything directly or impliedly;

(9) the method or style of the interrogation;

(10) the defendant’s mental and physical condition just prior

to the interrogation;

(11) the length of the interrogation;

(12) the location of the interrogation; and

(13) the physical conditions of the location where the

interrogation occurred.

Cardman v. People, 2019 CO 73, ¶ 23.

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2. Miranda Waiver

¶ 50 Banks’s challenge to the validity of his Miranda waiver is

based on his statement to detectives that he was in a “catch-22” —

that if he asked for an attorney, he would “lose [his] chance” to talk

to them. Banks asserts that this statement evinced a

misunderstanding of his right to talk to the detectives with an

attorney present. And he argues that the detectives engaged in

coercive conduct by failing to correct that misunderstanding.

¶ 51 We disagree that Banks’s remark reflected a misunderstanding

of his rights. To the contrary, his statements as a whole indicated

that he understood his fundamental rights — his right not to speak,

his right to request a lawyer, and the fact that his statements could

be used against him. See Al-Yousif, 49 P.3d at 1169. He also

understood that, if he requested a lawyer, the detectives would have

to stop talking to him. See Leyba v. People, 2021 CO 54, ¶ 14. And

to the extent he implied that he would not be able to talk to the

detectives later, that could reasonably be understood as a

recognition of the practical reality that a lawyer would likely advise

Banks not to speak. But it did not belie the “rudimentary

understanding” of his “basic choices” that Miranda requires. Al-

26
Yousif, 49 P.3d at 1170, 1172; see also People v. Thames, 2015 CO

18, ¶ 12 (“[A] defendant need not understand every consequence of

his decision to waive for his waiver to be knowing and intelligent.”).

¶ 52 For the same reasons, we reject Banks’s argument that the

detectives engaged in coercive conduct by failing to clarify the

nature of the Miranda rights in response to Banks’s remark.

Although detectives should attempt to clarify any “substantial

misconceptions” of the Miranda rights revealed by a suspect’s

statements, People v. Redgebol, 184 P.3d 86, 98 (Colo. 2008),

overruled on other grounds by Leyba, 2021 CO 54, Banks’s

statements did not reflect any such substantial misconceptions. Cf.

People v. Newton, 2022 COA 59, ¶¶ 21-22 (holding that Miranda

waiver was invalid where officers told the defendant that “‘the only

way’ he could have an attorney present for questioning would be if

he was able ‘to pay for one’” and then “dodged” the defendant’s

attempt to clarify whether he would need to pay for an attorney).

¶ 53 Thus, because the record confirms that Banks had a basic

understanding of his rights and the consequences of his waiver,

and because there is no indication of coercion, we conclude that

Banks’s Miranda waiver was knowing, intelligent, and voluntary.

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3. Voluntariness of Statements

¶ 54 We also conclude that Banks’s statements made after his

Miranda waiver were voluntary.

¶ 55 Of the thirteen nonexhaustive factors that we consider, several

support a conclusion of voluntariness. See Cardman, ¶ 23 (listing

factors). The detectives advised Banks of his Miranda rights (factor

four), and Banks understood and waived those rights (factor five).

The detectives made clear to Banks that he was under arrest for a

homicide (factor three), that he would be going to jail regardless of

whether he agreed to speak, and that they would not make any

promises (factor eight). And although Banks cried at several points

during the interrogation, he was alert and uninjured (factor ten).

¶ 56 Banks contends that his statements were involuntary because

(1) the detectives failed to correct his misunderstanding of his

Miranda rights, and (2) the detectives used aggressive interrogation

tactics, including raising their voices and accusing him of lying.

¶ 57 We have already rejected the first argument. Because Banks’s

statements did not reveal a misconception of his basic Miranda

rights, the detectives did not engage in coercive conduct by failing

to correct that purported misconception. See Ramadon, ¶ 20.

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¶ 58 Nor did the detectives engage in coercive conduct by raising

their voices and accusing Banks of “lying through [his] fucking

teeth” and “playing games.” An officer’s “angry and confrontational

demeanor” does not necessarily render a defendant’s statements

involuntary. People v. Valdez, 969 P.2d 208, 212 (Colo. 1998). And

we see nothing in the detectives’ conduct that “overb[ore] [Banks’s]

will to resist.” Ramadon, ¶ 20. The detectives had reason to believe

Banks was lying — he had told them he was not at the Venture Inn

on the day of the shooting, despite surveillance video showing him

there — and “it was not coercive for [them] to encourage [Banks] to

tell the truth.” People v. Miranda-Olivas, 41 P.3d 658, 662 (Colo.

2001). And although they displayed some anger or frustration in

doing so, the detectives did not threaten Banks or appear to “exploit

any unique vulnerability.” People v. McIntyre, 2014 CO 39, ¶ 22.

¶ 59 Banks asserts that his crying at several points during the

interrogation demonstrates the detectives’ psychological coercion.

But “the record does not establish that [Banks] was overwhelmed to

the point that he relinquished his will and spoke involuntarily.”

McIntyre, ¶ 19; see also People v. Mares, 263 P.3d 699, 708 (Colo.

App. 2011) (holding that witness’s statements were voluntary “even

29
though she broke down crying at one point during the

interrogation”). Although he cried a few times, he was otherwise

composed during most of the interrogation, and with the couple

exceptions Banks identifies, the general tenor of the interrogation

was conversational. See Zadran, ¶ 19 (holding that statements

were voluntary where defendant was “calm and composed” and “the

interrogation was conversational”). Even when Banks cried, he

remained generally composed and his answers were coherent. Cf.

People v. Humphrey, 132 P.3d 352, 354, 362-63 (Colo. 2006)

(affirming the district court’s finding that the defendant’s

statements were involuntary where she “collaps[ed] into tears and

hysterics” and gave “partially coherent” answers).

¶ 60 Thus, considering the totality of the circumstances, we

conclude that the detectives’ conduct was not coercive, much less

so coercive as to “overbear [Banks’s] will.” Ramadon, ¶ 20. To the

contrary, the video of the interrogation supports the conclusion that

Banks’s statements were “the product of [his] essentially free and

unconstrained choice.” Id. at ¶ 19. We therefore conclude that the

district court correctly denied the motion to suppress.

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C. Redactions

¶ 61 Banks also contends that the district court erred by excluding

his statements encompassed by redactions 2 and 9. Those

statements indicated that Islas (1) “talks a little crazy” when he

“gets really high”; (2) “sees people and demons” and “had mental

issues”; (3) “has been suicidal”; and (4) has kidnapped people and

held them hostage in his room. We perceive no abuse of discretion.

1. Standard of Review and Applicable Law

¶ 62 A district court has broad discretion in determining the

admissibility of evidence based on its relevance, its probative value,

and its prejudicial impact. People v. Elmarr, 2015 CO 53, ¶ 20. We

review evidentiary rulings for an abuse of discretion. Id. A district

court abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or when it misapplies the law. Id.

¶ 63 Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” CRE 401. Irrelevant evidence is inadmissible. CRE

402. Relevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice,

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confusion of the issues, misleading the jury, undue delay, waste of

time, or needless presentation of cumulative evidence. CRE 403.

2. Analysis

¶ 64 Banks contends that the redacted statements were relevant to

self-defense because they supported his reasonable belief that Islas

would use unlawful force. With one caveat, we disagree.

¶ 65 Evidence of the victim’s prior violent acts, if known to the

defendant, may be admissible “as direct evidence of an essential

element of self-defense, namely, the reasonableness of the

defendant’s belief in the imminent use of unlawful physical force

against him.” People v. Jones, 675 P.2d 9, 17 (Colo. 1984).

¶ 66 To the extent the redacted statements went beyond Islas’s

prior violent acts to claims about his drug usage and mental health

struggles, we agree with the district court that they were irrelevant.

The “required inferential leap” — that because Islas used drugs,

hallucinated, and struggled with mental health, Banks “legitimately

feared [Islas] was more prone to violence — is a leap too far.” People

v. Toro-Ospina, 2023 COA 45, ¶ 53. Not only were Islas’s mental

health struggles irrelevant, but they risked “taint[ing]” Islas in ways

that were unrelated to his history of, or character for, violence. Id.

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¶ 67 The only prior violent act Banks mentioned in the redacted

statements was that Islas would “kidnap people and hold them

hostage in his room,” ostensibly as a result of the mental health

issues Banks described. But to the extent this nonspecific

assertion of prior kidnapping was relevant to Banks’s reasonable

belief that Islas was about to use unlawful force when he pointed a

gun at Banks and told him to leave — demonstrably not a

kidnapping — the district court correctly found that it was

cumulative of other evidence in the case. See People v. Warner, 251

P.3d 556, 564 (Colo. App. 2010) (“Admission of cumulative evidence

is a matter within the sound discretion of the [district] court.”).

¶ 68 The district court denied the prosecution’s request to redact

another statement by Banks that Islas had “been kidnapping people

in their rooms . . . because . . . when he gets real high he’s not all

there.” That statement was played for the jury. The court also

admitted other statements concerning Islas’s prior violent acts,

including that “when he gets high . . . he pulls guns on people” and

that he had pulled a gun on Banks multiple times before —

including earlier that night. Given these other statements, the

court did not abuse its discretion by excluding another statement

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about Islas kidnapping people that was intertwined with otherwise

inadmissible discussion of his mental health. See People v. Saiz, 32

P.3d 441, 448 (Colo. 2001) (“A trial court also cannot be considered

to have abused its discretion in excluding logically relevant evidence

as needlessly cumulative unless its decision, under the

circumstances, was manifestly arbitrary, unreasonable, or unfair.”).

IV. Banks’s Other Arguments

¶ 69 Banks makes two additional arguments on appeal — that the

prosecutor committed reversible misconduct and the district court

erred by imposing the costs of prosecution. Because these issues

are not likely to “arise in precisely the same posture” in a new trial,

we do not address them. People v. Gulyas, 2022 COA 34, ¶ 29.

¶ 70 The challenged prosecutor’s statements were closely tied to the

erroneous defense of premises instruction. Any such statements in

a retrial should conform to the new instruction and this opinion.

And the imposition of prosecution costs will become an issue only if

Banks is convicted after retrial. See § 16-18-101(1), C.R.S. 2025.

V. Disposition

¶ 71 The judgment of conviction is reversed, and the case is

remanded to the district court for a new trial.

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JUDGE GROVE and JUDGE YUN concur.

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