CO H:14 USE OF DEADLY PHYSICAL FORCE (DEFENSE OF PERSON – OFFENSE WITH A MENS REA OF RECKLESSNESS, EXTREME INDIFFERENCE, OR CRIMINAL NEGLIGENCE)

Colorado Jury Instructions, Criminal (2023)
CHAPTER H: DEFENSES
SECTION I: DEFENSES THAT ARE GENERALLY APPLICABLE

H:14: USE OF 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 deadly physical force upon another person without first retreating in order to defend himself [herself] or a third person from what he [she] reasonably believes to be the use or imminent use of unlawful physical force by that other person if he [she] reasonably believes a lesser degree of force is inadequate, and:

[he [she] has a reasonable ground to believe, and does believe, that he [she] or another person is in imminent danger of being killed or of receiving great bodily injury.]

[the other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary.]

[the other person is committing or reasonably appears about to commit kidnapping, robbery, sexual assault, or assault in the first or second degree.]

However, a person is not justified in using deadly 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 deadly 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.]

[the use of physical force against another is based on the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including but not limited to under circumstances in which the victim makes an unwanted nonforcible romantic or sexual advance toward the person.]

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. You are instructed, though, 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. 2022 (“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”); Instruction F:87 (defining “deadly physical force”); Instruction F:114 (defining “dwelling”); Instruction F:161.3 (defining “gender identity” and “gender expression”); Instruction F:342 (defining “sexual orientation”); 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. A division of the court of appeals has held that 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 is defined as including an intent to cause death), 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). Although Vasquez was decided in the context of affirmative defense instructions, this same method should be used when a similar dispute arises and the court instructs the jury about principles of self-defense pursuant to section 18-1-704(4).

4. See Instruction H:11, Comments 3-6, 9-12 (no-duty to retreat; apparent necessity; multiple assailants; combat by agreement; exceptions must be supported by evidence; self-defense not a defense to conspiracy; transferred intent; criminal mischief); 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)), Comment 3 (explaining that, pursuant to People v. Pickering, 276 P.3d 553, 557 (Colo. 2011), it is permissible to inform the jury when self-defense is not an affirmative defense), Comment 4 (explaining why the model instruction refers only to “self-defense”).

5. The plain language of section 18-1-704(4) states that: “The court shall instruct the jury that it may consider the evidence of self-defense in determining whether the defendant acted . . . with extreme indifference.” And the supreme court has indicated that, in this context, self-defense operates as an “element-negating traverse” in the same manner that it does with respect to criminal recklessness and criminal negligence. See People v. Pickering, 276 P.3d 553, 556 (Colo. 2011); Riley v. People, 266 P.3d 1089, 1093 (Colo. 2011). Accordingly, notwithstanding the fact that there is a “knowingly” requirement within the statutory definition of the actus reus for first degree extreme indifference murder, see § 18-3-102(1)(d), C.R.S. 2022; Candelaria v. People, 148 P.3d 178, 182 (Colo. 2006); People v. Jefferson, 748 P.2d 1223, 1233 (Colo. 1988), a defendant so charged is not statutorily entitled to an instruction defining self-defense as an affirmative defense under section 18-1-704(1), (2), C.R.S. 2022. See also § 18-3-202(1)(c), C.R.S. 2022 (defining first degree extreme indifference assault).

6. In 2017, the Committee modified the final paragraph of this instruction for clarity.

7. In 2019, the Committee updated Comment 4 to cross-reference additional Comments in Instruction H:11.

8. In 2020, pursuant to new legislation, the Committee added the bracketed exception regarding gender identity/expression or sexual orientation. See Ch. 279, sec. 3, § 18-1-704(3)(d), 2020 Colo. Sess. Laws 1364, 1365. The Committee also added the relevant cross-references in Comment 2.

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