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

H:11 USE OF NON-DEADLY PHYSICAL FORCE (DEFENSE OF PERSON)

The evidence presented in this case has raised the affirmative defense of “defense of person,” as a defense to [insert name(s) of offense(s)].

The defendant was legally authorized to use physical force upon another person without first retreating if:

1. he [she] used that physical force in order to defend himself [herself] or a third person from what he [she] reasonably believed to be the use or imminent use of unlawful physical force by that other person, and

2. he [she] used a degree of force which he [she] reasonably believed to be necessary for that purpose. [, and]

[3. he [she] did not, with intent to cause bodily injury or death to another person, provoke the use of unlawful physical force by that other person.]

[4. he [she] was not the initial aggressor, or, if he [she] was the initial aggressor, he [she] had withdrawn from the encounter and effectively communicated to the other person his [her] intent to do so, and the other person nevertheless continued or threatened the use of unlawful physical force.]

[5. the physical force involved was not the product of an unauthorized combat by agreement.]

The prosecution has the burden to prove, beyond a reasonable doubt, that the defendant’s conduct was not legally authorized by this defense. In order to meet this burden of proof, the prosecution must disprove, beyond a reasonable doubt, at least one of the above numbered conditions.

After considering all the evidence, if you decide the prosecution has failed to meet this burden of proof, then the prosecution has failed to prove the defendant’s conduct was not legally authorized by this defense, which is an essential element of [insert name(s) of offense(s)]. In that event, you must return a verdict of not guilty of [that] [those] offense[s].

After considering all the evidence, if you decide the prosecution has met this burden of proof, then the prosecution has proved the defendant’s conduct was not legally authorized by this defense. In that event, your verdict[s] concerning the charge[s] of [insert name(s) of offense(s)] must depend upon your determination whether the prosecution has met its burden of proof with respect to the remaining elements of [that] [those] offense[s].

COMMENT

1. See § 18-1-704(1–3), C.R.S. 2016.

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

3. See People v. Garcia, 28 P.3d 340, 347 (Colo. 2001) (“the no-duty to retreat rule does not apply when a non-aggressor pursues an initial aggressor who has withdrawn because in that situation, the non-aggressor in fact becomes the aggressor”; however, the trial court erred in refusing to give a no-duty to retreat instruction in this case because the victim had not withdrawn, the defendant was not out of danger at the time that she killed him, and the jury could have mistakenly concluded that the defendant had a duty to retreat before using deadly force); Idrogo v. People, 818 P.2d 752, 757 (Colo. 1991) (because the question of whether the defendant did in fact retreat was vigorously disputed, the defendant was entitled to have the jury properly instructed on applicable law of nonretreat; trial court erred by not instructing the jury that an innocent victim of assault need not retreat before using deadly force if the victim believes the use of such force is necessary for self-protection and the belief is based on reasonable grounds).

4. If the jury is given an instruction that utilizes the language of section 18-1-704, it is unnecessary to give a separate instruction concerning the concept of “apparent necessity.” See Beckett v. People, 800 P.2d 74, 78 (Colo. 1990) (a separate “apparent necessity” instruction is not necessary where jury instructions adequately informed the jury that it was required to consider the defendant’s reasonable belief in the necessity of defensive action).

5. The above instruction does not include multiple assailant language from People v. Jones, 675 P.2d 9, 14 (Colo. 1984). More recently, the supreme court has explained “that Jones does not require a trial court to give a specific multiple assailants instruction in every case involving both multiple assailants and self-defense.” Riley v. People, 266 P.3d 1089, 1094 (Colo. 2011).

Instead, Jones stands for the principle that a jury must consider the totality of the circumstances, including the number of persons reasonably appearing to be threatening the defendant, (1) when evaluating the reasonableness of the defendant’s belief that he needed to use self-defense in the given situation, and (2) when evaluating the reasonableness of the actual force used by the defendant to repel the apparent danger. See Jones, 675 P.2d at 14. The purpose of this rule is to ensure that the jury understands that it may consider all relevant evidence when assessing the reasonableness of the defendant’s actions. Thus, so long as the given instructions properly direct the jury to consider the totality of the circumstances during its deliberations on reasonableness, those instructions will satisfy Jones.

Riley v. People, 266 P.3d at 1094 (the instructions given, when read together, accurately described the law of self-defense in the multiple assailants situation, in that they described the law of self-defense and broadly provided that the jury should consider the totality of the circumstances when evaluating the reasonableness of the defendant’s actions).

6. Participation in an unauthorized “combat by agreement” is a disqualifying condition that, like initial aggression and provocation, establishes an exception to the affirmative defense of self-defense. Although section 18-1-704(3)(c) requires proof that the agreement was “not specifically authorized by law,” this language does not establish a separate defense. See also Instruction H:04 (defining the affirmative defense of consent, under section 18-1-505(2), where “the conduct and the injury were reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport”).

“Colorado case law makes clear that there must be a definite agreement before a court can instruct a jury on the mutual combat limitation on self-defense.” Kaufman v. People, 202 P.3d 542, 561-62 (Colo. 2009) (“Nowhere in the [self-defense] statute does the General Assembly define ‘combat by agreement.’ Rather, the elements of this self-defense exception have been developed through case law.”). Accordingly, in a case where there is an evidentiary basis for including language defining the combat by agreement exception, draft a supplemental instruction specifying the relevant principles of law that the jury should apply to decide whether the combat by agreement was “unauthorized.” See, e.g., § 12-10-103(15), C.R.S. 2016 (defining “toughperson fighting” as including nearly all types of combat by agreement, other than sanctioned boxing and martial arts training that is conducted in specified circumstances); § 12-10-107.5, C.R.S. 2016 (“toughperson fighting” is a class one misdemeanor); § 18-9-106(1)(d), C.R.S. 2016 (making it a class three misdemeanor to engage in public fighting, other than in an amateur or professional contest of athletic skill); § 18-13-104, C.R.S. 2016 (dueling statute, prohibiting (1) agreements to fight in a public place, except in sporting events authorized by law; and (2) agreements to engage in a fight with deadly weapons, whether in a public or private place).

7. When submitting an offense that is defined with the alternative mens reas of “knowingly” and “recklessly,” see, e.g., § 18-3-204(1)(a), C.R.S. 2016 (third degree assault), use separate instructions to define self-defense (1) as an affirmative defense to an elemental instruction that defines the offense with only the mens rea of “knowingly”; and (2) pursuant to section 18-1-704(4), with respect to a separate elemental instruction that defines the offense with only the mens rea of “recklessly.” See Instruction H:13 (affirmative defense of “use of non-deadly physical force (defense of person—offense with a mens rea of recklessness, extreme indifference, or criminal negligence)).

8. In a case where more than one exception is submitted (e.g., initial aggression and provocation), include a conjunction.