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People v. Toler9/11/2000
he was a trespasser. This comment may have had the effect of focusing the jury on the erroneous portion of the self-defense instruction.
In sum, under the specific facts presented in this case, the jury may have concluded that Toler was not the initial aggressor even though he participated in the theft of Martinez's car stereo. If the jury concluded that Toler was not the initial aggressor, then Toler had no duty to retreat before using physical force to defend himself. However, if the jury relied on the implication in Instruction No. 14, then they may have determined that Toler, because he was where he had no right to be (that is, he was a trespasser), should have retreated to the wall before using force to defend himself. Such a conclusion contravenes our statute and our precedent. Thus, we agree with the court of appeals that Toler's conviction must be reversed. See also Idrogo, 818 P.2d at 757 (requiring a new trial where jury received erroneous instruction about self-defense under section 18—1—704); Enyart, 67 Colo. at 439-41, 180 P. at 724 (requiring a trial where jury was erroneously instructed on law of self-defense).
V. CONCLUSION
Under the facts of this case, Instruction No. 14, which was patterned after CJI-Crim. 7:68-7(15), could have misled the jury to believe that a trespasser must "retreat to the wall" before using physical force in self-defense. Because Colorado does not impose a duty to retreat on any person who may lawfully use physical force in self-defense under the provisions of section 18—1—704 unless the person is an "initial aggressor," Instruction No. 14 could have substantially affected the jury's assessment of Toler's self-defense claim. Thus, we affirm the court of appeals decision reversing Toler's conviction, and we remand the case to that court for return to the trial court for a new trial consistent with this opinion.
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