McCullough's daughter, identified as S.M., testified McCullough had wrapped a jiu-jitsu belt around her neck from behind and strangled her until she started kicking her legs. Nevertheless, El Paso County prosecutors charged McCullough with attempted second-degree murder, assault and child abuse after learning about the alleged extent of McCullough's discipline. McCullough, who served in the military and worked in law enforcement, acknowledged spanking the children, but denied putting his hands on their throats. reportedly used a "progressive form of discipline" to handle the large, blended family living in his house. "The jury’s verdict rejected non-deadly physical force," Olivares told the panel at the time. Olivares believed the Court of Appeals had misinterpreted the prosecution's argument to suggest that because Herrera's jury convicted him for using deadly force, it would have necessarily rejected self-defense through non-deadly force.Īlthough Olivares claimed that was not his argument on appeal, he did, in fact, advance such a theory during oral arguments in October. Senior Assistant Attorney General Gabriel P. The Colorado Attorney General's Office filed a petition last week, asking the panel to reconsider its ruling. "From this evidence, we conclude that a reasonable person - untrained in anatomy - could find that a single, one-inch-deep cut in the upper arm would normally not be expected to produce death," Dunn concluded.īecause Herrera was entitled to a jury instruction on non-deadly force, which could have resulted in an acquittal, the panel reversed Herrera's conviction and ordered a new trial. 20.Ĭaruso's testimony established Lanford's lone injury, while fatal, stood apart from other deadly stab wounds he encountered. "Rather, in determining whether a nondeadly force instruction should be given, what matters is the nature of the force used and, specifically, whether the force used would normally be expected to produce death," she wrote on Oct. Writing for a three-member panel of the appellate court, Judge Stephanie Dunn explained the legal question could not hinge solely on whether a victim ends up dying from the defendant's use of force. In this case, the chief medical examiner's testimony could suggest Herrera intended to use force to stop the attack, without meaning to inflict a deadly injury in an unusual location. On appeal, Herrera pointed out that the criminally accused are entitled to a self-defense instruction when there is some credible evidence supporting their theory of defense. The jury found Herrera guilty of second-degree murder and he received a sentence of 96 years in prison. Laff declined to read the non-deadly force instruction. Herrera also asked for an instruction on non-deadly force, which would allow for an acquittal simply if Herrera used a degree of force proportional to the force Lanford had used on him. If jurors found Herrera used force that would normally be expected to produce death, and that he did so with the belief he was in imminent danger of being killed or seriously injured, they could acquit him. The jury received an instruction on the use of deadly force in self-defense. "It’s unfortunate that there’s a one-in-a-million shot that he happened to sever the brachial artery and the man bleeds out," argued Herrera's attorney. The defense argued Herrera stabbed the victim once in his arm out of self-defense, and not with the intent to inflict a deadly injury. So, yeah, this is not a common case," James Caruso, Denver's chief medical examiner, testified at trial. “In the several thousand autopsies I’ve done, I’m not sure I have a single wound to an upper extremity that transected a major artery without a lot of other sharp force wounds associated with it. It did not target a major organ, but happened to be fatal because it cut through a major artery. Denver's top forensic pathologist did not deem it a stab wound because it was longer than it was deep. The evidence showed Lanford's wound was unusual. Lanford died from a cut wound to his arm as Herrera allegedly fought back in self-defense. After Herrera confronted Lanford about the alleged abuse, Lanford reportedly became aggressive and struck Herrera with the pole. Herrera had been upset with how Lanford had treated his girlfriend, who was Herrera's mother. Prosecutors subsequently charged Elizario Manuel Herrera with first-degree murder. He was lying in a pool of blood with a metal pole nearby. Michael Lanford was found dead on a sidewalk in northwest Denver on July 11, 2017.
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