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People v. Toler9/11/2000
ndant's status as a trespasser has not been a central element in our decisions. For example, in Boykin, the defendant's "right to be" where he was turned on his status as a police officer making a lawful arrest, not on whether the defendant was trespassing. See 22 Colo. at 504, 45 P. at 422. Additionally, in other cases we have discussed an "innocent victim's" privilege to use physical force in self-defense without directly referring to the person's status as a trespasser or "right to be" in a particular place. See Idrogo, 818 P.2d at 756; Willner, 879 P.2d at 22, 24. Furthermore, in Willner we approved of a jury instruction about the use of deadly force in self-defense that contained no reference to the defendant's right to be where he was. See 879 P.2d at 23-25. Thus, although we have approved of the "right to be" language in some cases discussing the use of force in self-defense, we have never held that a trespasser must retreat to the wall before using force in self-defense or that a person must be where he has a right to be before using such force.
Like our caselaw, which contains no requirement that trespassers retreat to the wall before using defensive physical force, section 18—1—704 contains no reference to a person's right to be in the place where he uses defensive physical force. Our analysis of section 18—1—704, supra Part III.B, demonstrates that the statute describes the privilege to use physical force in terms of four categories of people: those who with intent to cause bodily harm provoke the use of force against themselves, participants in unauthorized mutual combat, initial aggressors, and all others. Of these categories, only "initial aggressors" have a duty to retreat before using physical force to defend themselves. See 18—1—704(3)(b). The statute contains no references to "trespassers" or any other indication that a person who is not where he has a right to be must retreat before using physical force in self-defense. Thus, requiring trespassers to retreat before using defensive physical force would extend the duty beyond the only class of persons identified by section 18—1—704 as subject to the duty to retreat.
Just as none of our cases requires that a trespasser retreat to the wall before using physical force in self-defense, CJI-Crim. 7:68-7(15) stands only for the proposition that a non-aggressor has no duty to retreat and is not designed to instruct the jury that a trespasser has a duty to retreat. In Idrogo, we held that under the facts of that case the jury should have been instructed that a non-aggressor has no duty to retreat, even if the non-aggressor could have safely done so. See 818 P.2d at 756. We recognized that Colorado law imposes the duty to retreat only in the specific circumstances described in section 18—1—704(3) (i.e., initial aggressors), and we refused to extend that duty:
Section 18—1—704(2) contains no language restricting the circumstances in which a non-aggressor may use physical force, including deadly physical force, when such a person believes, on reasonable grounds, that such conduct is necessary to avoid great bodily harm. Id. at 756.
Thus, in Idrogo we recognized and reaffirmed the fundamental distinction that exists in the self-defense statute: non-aggressors have no duty to retreat and initial aggressors must retreat before using force in self-defense.
Because the jury could have determined that the defendant in Idrogo was not the initial aggressor, they should have been informed that if the defendant was not the initial aggressor, then he had no duty to retreat. See id. Without the proper instruction, the jury might have concluded that even as the non-aggressor the defendant could have retreated and
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