CO H:24 USE OF DEADLY PHYSICAL FORCE IN MAKING AN ARREST OR IN PREVENTING AN ESCAPE (PRIVATE PERSON, ACTING ON HIS OR HER OWN)
Colorado Jury Instructions-Criminal (COLJI-Crim) (2016)
H:24 USE OF DEADLY PHYSICAL FORCE IN MAKING AN ARREST OR IN PREVENTING AN ESCAPE (PRIVATE PERSON, ACTING ON HIS OR HER OWN)
The evidence presented in this case has raised the affirmative defense of “deadly physical force in [making an arrest] [preventing an escape],” as a defense to [insert name(s) of offense(s)].
The defendant was legally authorized to use deadly physical force upon another person if:
1. he [she] reasonably believed it was necessary [to make an arrest, for an offense that the other person [had committed][was committing] in his [her] presence,] [to prevent the escape from custody of an arrested person whom he [she] had arrested for committing an offense in his [her] presence,] and
2. he [she] reasonably believed that it was necessary to defend himself [herself] [or a third person] from what he [she] reasonably believed to be the use or imminent use of deadly physical force.
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 § 18-1-707(7), C.R.S. 2016.
2. See Instruction F:87 (defining “deadly physical force”); Instruction F:263 (defining “peace officer”); 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. See Instruction H:27.SP (special instruction: reasonable belief that a person has committed an offense).
