A second-degree murder retrial was ordered on January 16 after Colorado’s Court of Appeals determined that Weld County District Court Judge Timothy Kerns failed to provide self-defense instruction to the jury. Kenneth James Hoschouer III was convicted in 2021 and sentenced to 48 years in prison for murdering his friend Christopher Grau, but the conviction has been overturned while the defendant awaits a new trial.
A pocket knife, 13 shell casings, and a blood-stained wooden board were next to Grau’s body at the crime scene, which the three-judge Court of Appeals panel determined were circumstantial evidence of self-defense. Since Kern did not provide a self-defense instruction to the jury, Hoschouer’s attorney could not present self-defense as an argument to the jury.
Assistant Attorney General Alejandro Gonzalez argued that a self-defense directive wasn’t necessary for this case. He wrote, “Hoschouer did not have any physical injuries shortly after the murder was discovered, and he never told his wife or the police that he feared for his life."
Judge Welling, the author of the ruling, said that there were unanswered questions regarding the case that leave the door open for the jury to consider self-defense. Specifically, there were weapons scattered at the murder scene and a neighbor knew the exact location of the murder weapon. He said there is “limited evidence to support this theory, but it’s ultimately the jury’s job to determine whether the evidence demonstrates that Hoschouer did indeed act in self-defense.”
The Fifth and Fourteenth Amendments of the U.S. Constitution provide the right to due process, which means that some cases can be overturned when a judge doesn’t provide the jury with proper instructions. Hoschouer is still in custody at a Denver prison facility.
The most recent example of Colorado’s Court of Appeals overtuning a conviction was when a Boulder County man’s sexual assault conviction was overturned in November because the judge failed to dismiss a distracted juror. Curtis DiMarco received a sentence of 60 years for sexual assault on a child and sexual exploitation of a child after his 2021 trial. His arrest was in 2018 for crimes committed between 2008 and 2017, which also involved his wife Sherry DiMarco.
District Court Judge Norma A. Sierra told the defense and prosecution about a juror who had witnessed the death of a person in a motorcycle accident the night before. The juror told the judge he would have trouble focusing on the evidence and testimonies during the trial due to the traumatic experience.
The defense moved to dismiss the juror, but it was denied by Judge Sierra. When the juror was pulled aside by Judge Sierra later in the day, he admitted that he missed “quite a bit” of the witness testimonies from that morning, but was able to focus “most of the time” in the afternoon. The defense moved again to dismiss the juror and it was denied by Judge Sierra.
Judge Rebecca R. Freyre of the Court of Appeals said juror inattentiveness does not necessarily require a juror to be dismissed from the case. She wrote, "we do not mean to suggest that a court faced with this dilemma is always required to dismiss a juror who, due to a lapse in concentration, misses some testimony. The impact on a juror’s ability to engage in informed deliberations would depend, among other things, on the degree and length of the juror’s inattention, the complexity of the case, and the importance of the testimony at issue."
