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People v. Toler9/11/2000
that the defendant's use of force was unreasonable in light of the possibility of retreat:
[The instruction given to the jury] does not inform the jury, directly or indirectly, that if Idrogo were not the initial aggressor he need not retreat at all to be entitled to use deadly force if he believed such force to be necessary in light of [the deceased's] conduct and the belief was based on reasonable grounds. Because the jury could reasonably have concluded on the basis of the instructions given at trial that Idrogo's failure to retreat was evidence that a lesser degree of force would have been adequate, an instruction explaining that Idrogo had no duty to retreat would not . . . have been redundant. Id. at 756.
We concluded that the jury should have been given an instruction similar to the language of CJI-Crim. 7:68-7(15) to ensure that the jury does not consider the possibility of retreat as a limitation on a non-aggressor's claim of self-defense.
A person who is not where he has a right to be in many instances retains the privilege to use force in self-defense irrespective of his status as a trespasser. For example, if the initial aggressor in an assault withdraws and communicates his intention to withdraw to the victim of the assault, the aggressor may defend himself. See § 18—1—704(3)(b). In such a circumstance, nothing in the statute suggests that the initial aggressor's ability to defend himself turns on whether he is where he has a right to be——it is solely an issue of whether the initial aggressor withdraws and communicates as required by the statute. See id.
Similar reasoning would apply in the case of a victim of an attempted robbery who flees onto a third person's property before resorting to physical force against the would-be robber. Nothing in the statute suggests that a robbery victim forfeits the privilege to defend himself simply by the act of trespassing onto the property of a third person.
In addition to instances in which a person trespasses while fleeing from an attack, other scenarios suggest that trespassers do not forfeit their rights to self-defense merely by the act of trespassing. For instance, if the owner or occupant of property confronts a trespasser with unlawful force (e.g., by using deadly force without reasonable grounds to believe that the trespasser committed or intends to commit a felony in addition to the trespass), then the trespasser retains the right to defend himself without having to "retreat to the wall." See State v. Perigo, 28 N.W. 452, 457 (Iowa 1886); People v. Townes, 218 N.W.2d 136, 141-142 (Mich. 1974).
In the situations we have suggested, as well as others we have not addressed or considered, a trespasser would not be required to "retreat to the wall" before using physical force in self-defense. Because neither our statutes nor our caselaw requires us to conclude that a trespasser must in every instance retreat to a position of no escape before using physical force in self-defense, we cannot agree with the position urged by the People.
Although our conclusion that neither section 18—1—704 nor our cases require that a trespasser must "retreat to the wall" before using force in self-defense, a trespasser is not necessarily in the same position as an "innocent person" or "true man" in terms of employing defensive physical force. In addition to the justifiable use of physical force pursuant to section 18—1—704, a person in possession or control of any building or premises may lawfully use reasonable force, including deadly force in some instances, against trespassers. See § 18—1—705, 6 C.R.S. (1999). Furthermore, the occupant of a dwelling may lawfully use physical force, includin
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