Summary
upholding the trial court's decision not to give a separate apparent necessity instruction
Summary of this case from Kaufman v. PeopleOpinion
No. 89SC417
Decided October 29, 1990. Rehearing Denied November 19, 1990.
Certiorari to the Colorado Court of Appeals.
Griffith, Beach Allin, Bradford L. Allin, for Petitioner.
Duane Woodard, Attorney General, Charles B. Howe, Deputy Attorney General, Richard H. Forman, Solicitor General, John Daniel Dailey, Deputy Attorney General, for Respondent.
Theodore Koeberle, Robert Dowlut, for Amicus Curiae The National Rifle Association.
The defendant John Beckett Jr. petitioned for certiorari review of the court of appeals decision in People v. Beckett, 782 P.2d 812 (Colo.App. 1989). After a jury trial, the defendant was convicted of felony menacing with a deadly weapon, § 18-3-206, 8B C.R.S. (1986), and prohibited use of weapons, § 18-12-106(1)(d), 8B C.R.S. (1986). In Beckett, the court of appeals held that the trial court did not err in refusing the defendant's "apparent necessity" self-defense jury instruction. We granted certiorari to consider the court of appeals decision, and we now affirm.
We also granted certiorari to consider whether the court of appeals erred in holding that self-defense is not a defense to a charge of prohibited use of weapons under § 18-12-106(1)(d). Because we conclude that the trial court properly instructed the jury on the defendant's self-defense claim, and because the jury found that the defendant had not satisfied the requirements of the self-defense statute, § 18-1-704, 8B C.R.S. (1986), it is not necessary to consider this second issue. We thus express no opinion on whether self-defense may be a defense to the offense of prohibited use of weapons.
I
In May 1987, the defendant and his friend, while attending a party, became involved in an altercation with Ralph Cirillo and two of his friends. As the defendant left the party and Cirillo and his friends followed him to his car, the defendant raised his hand to one of Cirillo's friends and stated, "You're this close to death." When the defendant reached his car, he reached under the front seat, pulled out an automatic pistol, pointed it at Cirillo, and stated, "This is all it takes, pal." Subsequently, the defendant was disarmed and restrained until the police arrived. The defendant testified at trial that Cirillo and his friends were large persons, that they were angry, and that he was afraid Cirillo and his two friends would harm him.
At the conclusion of all the evidence, the defendant tendered a self-defense jury instruction stating that "[o]ne may act in self-defense on the basis of apparent necessity, or a reasonable but erroneous belief that the use of unlawful physical force is imminent." The tendered instruction also stated that self-defense was an affirmative defense to the crimes of felony menacing and prohibited use of weapons.
The trial court refused the tendered instruction. The court also ruled that the defendant was not entitled to a self-defense instruction on the count alleging prohibited use of weapons. The court of appeals affirmed, holding that the defendant's tendered "apparent necessity" instruction was "merely redundant," and that self-defense could not be an affirmative defense to a prohibited-use-of-weapons charge. People v. Beckett, 782 P.2d 812, 813 (Colo.App. 1989).
II
We first consider the defendant's argument that the court of appeals erred in concluding that the defendant was not entitled to an amplifying self-defense instruction concerning "apparent necessity."
Section 18-1-704, 8B C.R.S. (1986), sets forth the statutory affirmative defense of self-defense. The statute provides in relevant part:
"(1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.
"(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:
"(a) The actor has reasonable ground to believe, and does believe, that he . . . is in imminent danger of being killed or of receiving great bodily injury . . . ."
(Emphasis supplied.)
The defendant relies on Young v. People, 47 Colo. 352, 107 P. 274 (1910), and People v. Tapia, 183 Colo. 141, 515 P.2d 453 (1973), for the proposition that an "apparent necessity" jury instruction is required in self-defense cases. We find those cases inapposite.
The defendant also cites People v. Duran, 40 Colo. App. 302, 577 P.2d 307, cert. denied (1978), and People v. Berry, 703 P.2d 613 (Colo.App.), cert. denied (1985). In each case the defendant tendered "apparent necessity" instructions, which the trial court refused to give to the jury, and in each case the court of appeals, applying Young, held that the trial court erred in not giving the "apparent necessity" instructions to the jury. Because neither Duran nor Berry considered whether jury instructions based on § 18-1-704 contained the same defects as the jury instructions based on § 18-1-704's predecessor, Duran and Berry are not persuasive authority in this case. Moreover, to the extent that Duran and Berry are inconsistent with our holding today, they are overruled.
In Young, this court held that the trial court's self-defense instructions, which were based on the existing self-defense statutes, see §§ 719-721, Gen. Stats. of Colo. (1883), were inadequate. The trial court instructed the jury in relevant part that:
The statutes provided that: "719. Justifiable homicide — Necessary defense "Sec. 31. (28.) Justifiable homicide is the killing of a human being in necessary self-defense or in the defense of habitation, property or person against one who manifestly intends or endeavors by violence or surprise to commit a known felony, such as murder, rape, robbery, burglary and the like, upon either person or property, or against any person or persons who manifestly intend and endeavor in a violent, riotous or tumultuous manner to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein. . . . "720. Bare fear — Reasonable fear — Magistrate — What required. "Sec. 32. (29.) A bare fear of any of these offenses to prevent which the homicide is alleged to have been committed shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears and not in a spirit of revenge. And if the person killed was a magistrate, a police, or other public officer, it must appear also that the slayer was not the assailant, and that the person killed was not acting in the discharge of his duties. . . . "721. Killing in self-defense — What sufficient cause. "Sec. 33. (30.) If a person kills another in self-defense it must appear that the danger was so urgent and pressing that in order to save his own life or to prevent his receiving great bodily harm the killing of the other was absolutely necessary. And it must appear also that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given. . . ."
"Justifiable homicide is the killing of a human being in necessary self-defense of . . . person, against one who manifestly intends or endeavors by violence to commit a known felony . . . upon any person or persons . . . .
"A bare fear of any of these offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge.
"[T]he right to self-defense is only given in emergencies to enable persons who are attacked and to whom it may reasonably appear, that their lives or bodies are in danger of great bodily injury, to defend themselves; that this right is based upon what reasonable persons, having due regard for human life, would do under similar circumstances . . . .
This court in Vigil v. People, 143 Colo. 328, 333-34, 353 P.2d 82, 85 (1960), disapproved of this language — that the right to self-defense is only "given in emergencies."
". . . . Self defense is not available where defendant is not reasonably freed [sic] from fault nor unless there is evidence tending to show that he either was or appeared to be menaced at the time by some overt act on the part of the assailant of a character to create reasonable apprehension of danger of his life or of great bodily harm."
Young, 47 Colo. at 353-54, 107 P. at 275. This court held that the jury instruction failed to apprise the jurors that the defendant, who according to his testimony was threatened with death or great bodily injury, had the right under the doctrine of self-defense to defend himself against "apparent" danger:
"[T]he defendant had a constitutional right to have a lucid, accurate and comprehensive statement by the court to the jury of the law on the subject of self-defense from his standpoint, upon the supposition that the jury might believe . . . his testimony, and that of his witnesses . . . .
"It is fundamental that the law of self-defense, which is emphatically a law of necessity, involves the question of one's right to act upon appearances, even though such appearances may prove to have been deceptive; also the question of whether the danger is actual or only apparent, and as well the fact that actual danger is not necessary, in order to justify one in acting in self-defense. Apparent necessity, if well grounded and of such a character as to appeal to a reasonable person, under like conditions and circumstances, as being sufficient to require action, justifies the application of the doctrine of self-defense to the same extent as actual or real necessity."
Id. at 355, 107 P. at 275-76.
In Tapia, this court, quoting the above language in Young, held that a self-defense jury instruction — which was based on the then-existing self-defense statutes, see Tapia, 183 Colo. at 146, 515 P.2d at 455; § 40-2-13 to -15, 3 C.R.S. (1963) — similar to the instruction given in Young failed to apprise the jury that the defendant was entitled to use self-defense based upon "`appearances of danger [whether] real or apparently real, so as to justify action in self-defense.'" 183 Colo. at 145-46, 515 P.2d at 455 (quoting Young, 47 Colo. at 356, 107 P. at 276).
In 1971, the legislature repealed the self-defense statutes on which the jury instructions in Young and Tapia were based, and enacted section 40-1-804, which is almost identical to the current self-defense statute, section 18-1-704. 1971 Colo. Sess. Laws 388, 409. Since the enactment of sections 40-1-804 and 18-1-704, this court has not considered whether the Young and Tapia requirement of an "apparent necessity" jury instruction continues to be necessary.
Although Tapia was decided in 1973, the defendant in that case was tried prior to the effective date of the 1971 amendments to the statutes, and the trial court's self-defense instructions were based on the pre-1971 self-defense statute. See Tapia, 183 Colo. at 146, 515 P.2d at 455. In People v. Jones, 675 P.2d 9 (Colo. 1984), and People v. Collins, 730 P.2d 293 (Colo. 1986), we considered issues concerning § 18-1-704; moreover, in Collins, the trial court gave an "apparent necessity" instruction to the jury. However, in neither case did we address the issue of whether an "apparent necessity" instruction is always required.
In Vigil, this court approved a self-defense jury instruction that was based on the pre-1971 self-defense statute, and that did not contain an "apparent necessity" instruction, as Young required. Vigil, 143 Colo. at 334-35, 353 P.2d at 85-86. The court in Vigil stated that "[a]lthough it is not generally the province of this court to formulate instructions, it has been stated as a good rule to couch instructions in the language of the statute . . . . An instruction containing C.R.S. '53, 40-2-13-14-15, [sic] in their entirety would be considered proper . . . ." Id. at 334, 353 P.2d at 85-86. Because the issue before the Vigil court did not concern whether an "apparent necessity" instruction should have been given to the jury, we view Vigil as standing only for the general proposition that jury instructions generally should be "couch[ed] . . . in the language of the statute." See, e.g., People v. Madril, 746 P.2d 1329, 1335 (Colo. 1987); Salas v. People, 181 Colo. 321, 325, 509 P.2d 586, 587 (1973).
In this case the self-defense jury instruction, Instruction No. 14, which was based on section 18-1-704, stated:
It is an affirmative defense to the crime of felony menacing that the defendant threatened force upon another person:
1. in order to defend himself from what he reasonably believed to be the use or imminent use of unlawful physical force by Mr. Cirillo; and
2. he threatened to use a degree of force which he reasonably believed to be necessary for that purpose.
In 1983, we approved in principle the use of this self-defense jury instruction in criminal trials, but cautioned that this instruction could not be "specifically approve[d]" until it was tested in adversary proceeding. See Supreme Court Committee on Criminal Jury Instructions, Colorado Jury Instructions — Criminal, at V Instruction No. 7:16, at 97 (1983).
(Emphasis supplied.) We do not construe section 18-1-704 as eliminating an individual's right to use self-defense based on "apparent necessity." The statute "reflects what has long been the settled law of this jurisdiction, namely, reasonable belief rather than absolute certainty is the touchstone of self-defense." People v. Jones, 675 P.2d 9, 13 (Colo. 1984). The statute is thus free from the defects we identified in Young. See Young, 47 Colo. at 355-56, 107 P. at 275-76. Instruction No. 14 informed the jury that the defendant was entitled to defend himself if he "reasonably believed" that Cirillo used, or would imminently use, unlawful physical force against him.
In Jones, the defendant tendered a self-defense jury instruction almost identical to the self-defense instruction given to the jury in this case. The tendered instruction provided:
"It is an affirmative defense to the crime of Second Degree Assault that the defendant used the physical force upon another person:
"(1) In order to defend himself or a third person from what he reasonably believed to be the use or imminent use of unlawful physical force by [the victim] or his associates, and
"(2) He used a degree of force which he reasonably believed to be necessary for that purpose."
675 P.2d at 13. Although in Jones we did not specifically consider whether an "apparent necessity" instruction was required, we approved of the instruction while noting that the instruction was somewhat ambiguous as applied in that case. See id. at 14.
People v. Tippett, 733 P.2d 1183, 1195 (Colo. 1987), is analogous to the case at bar. In Tippett, the defendant was charged, inter alia, with two counts of violation of custody. The violation-of-custody statute, § 18-1-304, 8B C.R.S. (1986), provided that an affirmative defense existed if the offender "reasonably believed that his conduct was necessary" to preserve the child's safety. The defendant argued that the trial court erred in refusing his tendered "apparent necessity" instruction. We rejected the defendant's argument, and held that the "defendant's theory of defense is adequately encompassed within the instructions given to the jury." 733 P.2d at 1195.
In this case, Instruction No. 14, tracking the text of the statute, properly informed the jury that it was to consider the defendant's "reasonable belie[f]" of use or imminent use of force. Instruction No. 14 thus encompassed the principle, and the defendant's defense, that "`[a]pparent necessity, if well grounded and of such a character as to appeal to a reasonable person, under like conditions and circumstances . . . justifies the application of the doctrine of self-defense to the same extent as actual or real necessity,'" Jones, 675 P.2d at 14 (quoting Young, 47 Colo. at 355, 107 P. at 276). We conclude that Instruction No. 14 in this case adequately apprised the jury that it was required to consider "the totality of circumstances . . . in evaluating the reasonableness of the accused's belief in the necessity of defensive action," id. at 14. Accordingly, the trial court properly declined to give the defendant's tendered jury instruction. See, e.g., Stilwell v. People, 70 Colo. 55, 56, 197 P. 239, 240 (1921); Anaya v. People, 732 P.2d 1241, 1243 (Colo.App. 1986), rev'd on other grounds, 764 P.2d 779 (1988); People v. Young, 710 P.2d 1140, 1144 (Colo.App.), cert. denied (1985).
Judgment affirmed.
JUSTICE KIRSHBAUM dissents. JUSTICE ERICKSON and JUSTICE QUINN join in the dissent.