CO H:13 USE OF NON-DEADLY PHYSICAL FORCE (DEFENSE OF PERSON – OFFENSE WITH A MENS REA OF RECKLESSNESS, EXTREME INDIFFERENCE, OR CRIMINAL NEGLIGENCE)

CO H:13 USE OF NON-DEADLY PHYSICAL FORCE (DEFENSE OF PERSON – OFFENSE WITH A MENS REA OF RECKLESSNESS, EXTREME INDIFFERENCE, OR CRIMINAL NEGLIGENCE)

State: Colorado

Colorado Jury Instructions-Criminal (COLJI-Crim) (2016)

H:13 USE OF NON-DEADLY PHYSICAL FORCE (DEFENSE OF PERSON – OFFENSE WITH A MENS REA OF RECKLESSNESS, EXTREME INDIFFERENCE, OR CRIMINAL NEGLIGENCE)

The evidence presented in this case has raised the question of self-defense with respect to [insert name(s) of offense(s)].

A person is justified in using physical force upon another person without first retreating in order to defend himself [herself] [a third person] from what he [she] reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he [she] may use a degree of force which he [she] reasonably believes to be necessary for that purpose.

However, a person is not justified in using physical force if:

[with intent to cause bodily injury or death to another person, he [she] provokes the use of unlawful physical force by that other person.]

[he [she] is the initial aggressor; except that his [her] use of physical force upon another person under the circumstances is justifiable if he [she] withdraws from the encounter and effectively communicates to the other person his [her] intent to do so, but the other person nevertheless continues or threatens the use of unlawful physical force.]

[the physical force involved is the product of an unauthorized combat by agreement.]

You have been instructed that the prosecution has the burden of proving beyond a reasonable doubt all of the elements of [insert name(s) of offense(s)], including that the defendant acted [recklessly] [with extreme indifference] [in a criminally negligent manner].

You are further instructed that, with respect to [insert name(s) of offense(s)], the prosecution does not have an additional burden to disprove self-defense, but that a person does not act [recklessly] [with extreme indifference] [in a criminally negligent manner] if his [her] conduct is legally justified as set forth above.

COMMENT

1. See § 18-1-704(4), C.R.S. 2016 (“In a case in which the defendant is not entitled to a jury instruction regarding self-defense as an affirmative defense, the court shall allow the defendant to present evidence, when relevant, that he or she was acting in self-defense. If the defendant presents evidence of self-defense, the court shall instruct the jury with a self-defense law instruction.”; section inapplicable to strict liability crimes); see also People v. Duran, 272 P.3d 1084, 1099 (Colo. App. 2011) (“the statute mandates provocation and initial aggressor instructions in cases where self-defense is asserted as an element-negating [de]fense under subsection (4), if such instructions are otherwise warranted by the evidence in the case”).

2. See Instruction F:36 (defining “bodily injury”).

3. It is permissible to inform the jury when self-defense is not an affirmative defense. See People v. Pickering, 276 P.3d 553, 557 (Colo. 2011) (“[I]nstructing the jury, pursuant to the fourth clause of section 18-1-704(4), that the prosecution bears no burden of disproving self-defense with respect to crimes to which self-defense is not an affirmative defense is an accurate statement of Colorado law and does not improperly shift the prosecution’s burden to prove recklessness, extreme indifference, or criminal negligence. So long as the trial court properly instructs the jury regarding the elements of the charged crime, a carrying instruction using the language of section 18-1-704(4) is not constitutionally erroneous.”).

4. The first sentence of the model instruction refers only to “self-defense” because that is the language that appears in section 18-1-704(4), C.R.S. 2016. Although the Committee is not aware of any authority addressing the question of whether the General Assembly intended for the term “self-defense” to encompass the defense of “a third person,” as used in section 18-1-704(1), it is the Committee’s best judgment that this was the legislative objective. Accordingly, this understanding of the statute is reflected in the second paragraph of the above instruction.

5. See Instruction H:11, Comment 7 (separate instructions are required when explaining self-defense with respect to an offense, such as third degree assault in violation of § 18-3-204(1)(a), C.R.S. 2016, that has alternative mens reas of “knowingly” and “recklessly”).

6. See Instruction H:14 (affirmative defense of “use of deadly physical force (defense of person—offense with a mens rea of recklessness, extreme indifference, or criminal negligence), Comment 5 (section 18-1-704(4) applies to “extreme indifference” offenses).

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