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

H:12 USE OF DEADLY PHYSICAL FORCE (DEFENSE OF PERSON)

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

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

1. he [she] used that deadly 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] reasonably believed a lesser degree of force was inadequate, and

3. [he [she] had a reasonable ground to believe, and did believe, that he [she] or another person was in imminent danger of being killed or of receiving great bodily injury.]
[the other person was using or reasonably appeared about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary.]
[the other person was committing or reasonably appeared about to commit kidnapping, robbery, sexual assault, or assault in the first or second degree.]
[, and]

[4. 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.]

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 he [she] was not the initial aggressor, or, if he [she] was the initial aggressor, he [she] had withdrawn from the encounter and effectively communicated to the other person his [her] intent to do so, and the other person nevertheless continued or threatened the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

[6. 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”); Instruction F:87 (defining “deadly physical force”); Instruction F:114 (defining “dwelling”); see also People v. Ferguson, 43 P.3d 705, 707 (Colo. App. 2001) (in light of the way that “deadly physical force” is defined by statute, it is error to instruct the jury concerning the concept in a case in which the victim did not die); People v. Silva, 987 P.2d 909, 917 (Colo. App. 1999) (same).

3. Although the term “great bodily injury” appears in section 18-1-704(2)(a), it is not defined by statute. In People v. Reed, 695 P.2d 806, 808 (Colo. App. 1984), a division of the Court of Appeals held that the term “great bodily injury,” as used in section 18-1-704(2)(a), is synonymous with the term “serious bodily injury,” as defined in section 18-1-901(3)(p). See Instruction F:332 (defining “serious bodily injury”).

4. In a case where the victim dies and there is a factual dispute concerning whether the defendant used ordinary physical force or deadly physical force (which includes an intent to cause death as a necessary ingredient), the jury should also be allowed to consider the applicability of self-defense principles relating to the use of ordinary physical force. See People v. Vasquez, 148 P.3d 326, 328 (Colo. App. 2006) (trial court erroneously limited the jury’s consideration of self-defense principles to only those involving the use of deadly physical force).

5. See Instruction H:11, Comments 3–6 (no-duty to retreat; apparent necessity; multiple assailants; combat by agreement).

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