Opinion
No. 82CA1100
Decided February 14, 1985. Opinion Modified, and as Modified. Rehearings Denied March 21, 1985. Certiorari Denied August 19, 1985.
Appeal from the District Court of El Paso County Honorable Hunter D. Hardeman, Judge
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Clement P. Engle, Assistant Attorney General, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Jane S. Hazen, Special Deputy Public Defender, for Defendant-Appellant.
Division I.
Defendant, Glenn Anthony Berry, appeals the judgments entered upon his convictions of two counts of menacing with a deadly weapon. We affirm.
The facts in evidence giving rise to the charges here are that a department store detective watched defendant secret some hair nets upon his person and then go through the check-out stand without paying for these items. The detective followed the defendant to the front of the store, tried to detain him, and to recover the hair nets.
Defendant asked the detective to show identification which the detective did not do. A scuffle ensued and a crowd gathered. A defense witness testified that at this time defendant's companion drove up, and defendant obtained a hand gun from the vehicle. Defendant waved the gun from side to side and challenged the crowd to approach him now that he had the weapon.
The principal ground upon which defendant seeks reversal is the trial court's refusal to give an amplifying instruction in aid of the one given on the issue of self-defense. The instruction given by the trial court stated that an affirmative defense to the menacing charge was present if defendant "had reasonable grounds to believe that he was in imminent danger of being killed or receiving great bodily injury."
Defendant does not dispute that the instruction given is fairly taken from § 18-1-704, C.R.S. (1984 Repl. Vol. 8) and Colo. J.I. — Crim. Nos. 7:16 and 7:17 (1983). However, he argues, that here, the jury should have been further instructed, in accordance with the instructions he tendered, that "reasonable grounds to believe" encompasses the concept of apparent necessity. The trial court rejected the instructions as being inapplicable to defendant's theory of self-defense.
One of defendant's tendered instructions reads:
"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 doctrine of self-defense to the same extent as actual or real necessity."
This language is taken from Young v. People, 47 Colo. 352, 107 P. 274 (1910), and was approved recently in People v. Jones, 675 P.2d 9 (Colo. 1984). When the trial court rejected the tendered instruction, the district attorney stated that he believed that "reasonable belief" encompassed apparent necessity and would not object to the defendant's right to argue so and would not argue to the contrary.
We reject the People's contention that since the General Assembly has defined self-defense in § 18-1-704, it is improper for the courts to instruct further upon the issue. Under the facts here, it would have been appropriate for the trial court to grant defendant's tendered amplifying instruction.
We also perceive no merit in the People's argument that the courts are precluded from reliance upon the common law in amplification of sections of the criminal code. See People v. Jones, supra; People v. Nissen, 650 P.2d 547 (Colo. 1982); see also § 18-1-104(3), C.R.S.
However, we do agree with the People that here any error in refusing the instruction was harmless. The instruction given by the court, while not as verbose as that proposed by the defendant, contains the essence of his claimed defense. We cannot perceive that, had the instruction proposed by the defendant been given, the result in this trial would have been any different.
Having examined defendant's remaining issues preserved for review, we conclude that there was sufficient evidence to sustain the conviction, see People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973), and that the trial court properly instructed the jury on the scope of a security guard's authority to detain forcibly a suspected shoplifter. See § 18-4-407, C.R.S. (1978 Repl. Vol. 8). Defendant's contention concerning the reswearing of the jury goes to an irregularity that was harmless at most. Crim. P. 52(a); see also Hollis v. People, 630 P.2d 68 (Colo. 1981).
Judgment of convictions affirmed.
JUDGE VAN CISE concurs.
JUDGE TURSI dissents.