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People v. Toler9/11/2000
nd CJI-Crim No. 7:68-7(15) (1983). Toler objected to the part of the instruction that Toler argued could mislead a jury to believe erroneously that a trespasser must "retreat to the wall" before using physical force in self-defense, which reads as follows:
f the Defendant was not the initial aggressor, and was where he had a right to be, he was not required to retreat to a position of no escape in order to claim the right to employ force in his own defense. (Emphasis added.)
Over the defendant's objection, the trial court included the "right to be" language in the instruction, concluding that it was required by law.
During closing arguments, the prosecution urged the jury to reject the defense's claim of self-defense. The prosecutor argued that Toler was the initial aggressor and therefore not entitled to claim self-defense. In addition, the prosecutor also argued that because Toler was trespassing at the time he shot Martinez, he could not claim self-defense to excuse his conduct:
[Toler] does not get the self-defense claim for yet another reason. He also wasn't in a place where he was supposed to be. He was in somebody else's yard. He doesn't get it for that reason.
The jury convicted Toler of second degree murder.
Toler appealed his conviction, arguing that Jury Instruction No. 14 improperly explained the affirmative defense of self-defense, and the court of appeals reversed Toler's conviction. See People v. Toler, 981 P.2d 1096, 1098 (Colo. App. 1998). The court of appeals examined section 18—1—704, which "sets forth the circumstances in which a person is justified in using physical force" in defense of himself or another person and the exceptions to that privilege. See id. at 1097. Under the exceptions to the privilege listed in the statute, the court of appeals noted, there is no exception for a person who is not in a place "'where he had a right to be.'" Id. (quoting § 18-1-704).
In addition to its determination that section 18—1—704 does not impose a duty to retreat on a person who is not "where he has a right to be," the court of appeals noted that our precedent does not stand for the proposition that a person must be in a place where he has a right to be before using physical force in self-defense. See id. The court reviewed cases in which Colorado courts have addressed the "right to be" language in this instruction, and concluded that these cases involve issues other than whether Colorado requires a person to be in a place where he has a right to be before using physical force in self-defense. Id. at 1097-98.
Thus, the court of appeals found nothing in the statute or in our caselaw requiring that a person be in a place where he has a right to be before using physical force in self-defense. See id. Because it determined that the erroneous instruction might have substantially influenced the verdict or impaired the fairness of the trial, the court of appeals reversed the judgment and remanded the case for a new trial. Id. at 1099.
The People petitioned this court and we granted certiorari to consider the following issue:
Whether the court of appeals correctly invalidated the pattern jury instruction embodying the common law doctrine of retreat to the wall because it contained language not found in the initial aggressor statute.
III. DISCUSSION
The People argue Jury Instruction No. 14 properly instructed the jury that a person who is not where he has a "right to be" must "retreat to the wall" before using physical force in self-defense. In contrast, the court of appeals held that the "right to be" language could have misled the jury to believe, c
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