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People v. Toler9/11/2000
to the privilege of using physical force in self-defense: (1) people who with the intent to cause bodily injury or death provoke the use of force against themselves may not claim self-defense; (2) people who engage in unauthorized combat by agreement may not claim self-defense; (3) "initial aggressors," who first "withdraw and communicate," that is, "retreat," may then use physical force in their own defense; and (4) all other persons, i.e., those who do not fall within the first three groups, may use physical force, including deadly physical force, in accordance with sections 18—1—704(1) and (2). See § 18-1-704, 6 C.R.S. (1999).
C. "Right To Be"
Having analyzed Colorado's self-defense doctrine and demonstrated that this state imposes a "duty to retreat" only on "initial aggressors," we turn to the People's argument that a trespasser must "retreat to the wall" before using physical force in self-defense. The People argue that Instruction No. 14 properly informed the jury that because Toler was not where he had a "right to be" when he shot Martinez, the affirmative defense of self-defense was unavailable to Toler. We disagree.
Although bouth our caselaw and CJI-Crim. 7:68-7(15) have approved language similar to the "right to be" language, we have never held that a person must retreat to the wall before using force in self-defense if the person is where he has no right to be. Such a conclusion is required neither by section 18—1—704 nor by our precedent, and would contravene the right of some trespassers to defend themselves against unlawful physical force.
Many jurisdictions that adhere to the "true man" doctrine incorporate the notion of the "right to be" as an element of the privilege. In Beard, for instance, the United States Supreme Court concluded, partly based upon the defendant's right to be in the place where he used deadly force, that the defendant's conduct was justified when he shot one of three boys who attempted to take possession of one of the defendant's cows:
The accused being where he had a right to be, on his own premises . . . at the time the deceased approached him in a threatening manner, and not having by language or conduct provoked the deceased to assault him, the question for the jury was whether, without fleeing from his adversary, he had, at the moment he struck the deceased, reasonable grounds to believe, and in good faith believed, that he could not save his life or protect himself from great bodily harm except by [killing the deceased]. 158 U.S. at 160 (emphasis added).
Other courts have likewise explained the justification for the use of physical force in self-defense in terms of the defendant's right to be in the place where he defended himself. See, e.g., Renner, 912 S.W.2d at 704.
Similarly, we have described the justification for using physical force in self-defense in terms of the defendant being "where he had a right to be." In Boykin, we held that an officer who shot a man while trying to arrest him was justified and did not have to retreat before using force in self-defense, and we noted that the officer was "where he has a right to be." See 22 Colo. at 504, 45 P. at 422. In Enyart, we held that because the jury could have believed that the defendant was "attending to his own business, in his own bank" and had not otherwise provoked the deceased's use of force, an instruction that could have led the jury to conclude that the defendant could have used a lesser degree of force by retreating was erroneous. See 67 Colo. at 439-440, 180 P. at 724.
Although in Boykin and similar cases we approved of the use of "right to be" language in jury instructions about self-defense, the defe
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