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People v. Toler9/11/2000
g deadly force, against trespassers in certain situations. See § 18—1—704.5, 6 C.R.S. (1999). Under these statutes, a trespasser who is subjected to lawful physical force by the owner or occupant of property or premises has no privilege to use physical force in self-defense because the privilege under section 18—1—704 applies only when the defendant faces unlawful force. Thus, because trespassers face the possibility of lawful physical force by a person defending against the trespass, they are not in the same position as an otherwise innocent person or "true man" with respect to the privilege of using force in self-defense.
IV. APPLICATION
Having determined that under Colorado law only a person who is an "initial aggressor" must "retreat to the wall" before using physical force in self-defense, we consider whether the court of appeals properly reversed Toler's conviction and remanded the case for a new trial. Because Jury Instruction No. 14 could have caused the jury to assess Toler's self-defense claim in a manner inconsistent with Colorado law, we affirm the court of appeals decision.
The prosecution never argued that Toler fell within either of the two categories of persons who may not claim self-defense under sections 18-1-704(3)(a),(c) to justify the use of physical force against another person. Thus, Toler either was the initial aggressor and had a duty to retreat before using force in self-defense, or he was not the initial aggressor and could use force in accordance with the terms of section 18—1—704.
The question of whether Toler was the "initial aggressor" in the encounter with Martinez and Galvan was submitted to the jury as a factual issue for their determination. If the jury determined that Toler was the initial aggressor as the prosecution argued, then, since there was no evidence that Toler withdrew from the encounter with Martinez or communicated his intent to withdraw from the encounter, Toler would not have been entitled to claim self-defense.
On the other hand, because it was a jury question, they might have concluded that Toler was not the initial aggressor even if they believed Toler participated as a lookout in the theft of Martinez's car stereo. Toler did not directly confront or threaten Martinez and the others before Martinez chased him, and Toler and his companions fled for several blocks while being pursued by three men in a car. If the jury accepted Toler's account of the shooting, then they may have believed that Toler thought Martinez was reaching into his coat for a gun when Toler shot him. Thus, based on the evidence presented and the arguments made at trial, the jury could have concluded that Toler was not the initial aggressor and hence not subject to a duty to retreat under section 18—1—704(3)(b).
Despite the possibility that the jury could have concluded that Toler was not the initial aggressor, Instruction No. 14 implied that Toler could not claim self-defense because he was in a place he had no right to be, that is, because he was a trespasser. That Toler was in a place where he had no right to be when he shot Martinez was undisputed. If the jury followed Instruction No. 14, then the jury may have concluded that Toler, solely because he was trespassing when he shot Martinez, had to "retreat to the wall" before being entitled to claim self-defense. Because Toler's companion fled over the fence at the back of the yard, the jury might have concluded that Toler did not "retreat to the wall" before shooting Martinez.
Further complicating the situation, the prosecutor, relying on the "right to be" wording of the instruction, told the jury that Toler was not entitled to claim self-defense because
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