Riley v. People

Justice COATS,

concurring in the judgment only.

While I would also affirm the defendant's convictions in this case, I do not join the majority opinion, largely because I believe it, like the court of appeals below, both misreads our holding in People v. Jones, 675 P.2d 9 (Colo.1984), and fails to fully appreciate the import of our subsequent holding in Beckett v. People, 800 P.2d 74 (Colo.1990). Because I fear the majority may inadvertent*1096ly revive a debate about instructing on reasonable appearances, seemingly laid to rest in this jurisdiction more than twenty years ago, I write separately to express my views.

Rather than finding the defendant's tendered instruction to be a misleading statement of the law or finding Instruction No. 20, defining self-defense in the language of seetion 18-1-704, C.R.S. (2011), to adequately apprise the jury, by itself, of the law governing self-defense, the majority apparently concludes that the defendant's proposed instruction was properly denied only because the statutory definition of self-defense was supplemented in this case by a separate apparent necessity instruction. In Beckett, which also involved multiple assailants, we addressed this question head-on and held that instructing in the "reasonably believed" language of the current statutory defense adequately apprises a jury of its obligation to consider "the totality of cireumstances ... in evaluating the reasonableness of the accused's belief in the necessity of defensive action," id. at 78 (quoting Jones, 675 P.2d at 14); and consequently we found the separate apparent necessity instruction required by our pre-statute case law to be superfluous, id. In light of our holding in Beckett, I fail to see how giving an additional apparent necessity instruction could have enhanced the jury's understanding of the law of self-defense in any manner whatsoever.

Were I to believe, as apparently the majority does, that the defendant was entitled to have the jury separately admonished to assess the reasonableness of the defendant's conduct in light of the number of persons reasonably appearing to threaten him, I would be foreed to conclude that the instructions in this case were inadequate. Because, however, I consider it clear that our holding in Beckett disavowed any obligation to supplement the statutory self-defense language with an additional instruction concerning reasonable appearances, including any specific direction with regard to the number of apparent assailants, I would find Instruction No. 20 in this case adequate in itself to apprise the jury of the law governing self-defense.

In Jones we were faced with the question whether the trial court misconstrued the statute defining self-defense to prohibit the defendant from using physical force against the victim "as a means of repelling the as-saultive actions of those who were assisting him in attacking the defendant." 675 P.2d at 14. In that case, where there was testimony that the defendant was struggling with several indistinguishable men at the same time, we found that the trial court "vitiated the defendant's right to act upon reasonable appearances in a multiple assailant attack" by instructing in such a way as to effectively render irrelevant "the defendant's apprehension of physical violence from others acting in concert with his principal assailant." Id.

In Jones, we clearly did not hold that a defendant is justified in using increased force against one assailant simply because he is under attack from others as well, and such a proposition could not have been harmonized with the statutory language defining the defense. In fact, we expressly couched our rationale in terms of apparent necessity and held only that a defendant's right to act on reasonable appearances in defending himself entitles him to use the degree of force that appears necessary under the circumstances, including the fact that the danger presented by his victim may appear to be enhanced by concerted action. Although we noted in Jones that the defendant's proffered theory-of-the-case instruction was overly broad in failing to limit the jury's consideration to others who "the defendant reasonably believed were acting in concert with [the vie-tim] in the use or imminent use of unlawful physical force against [him]," id. at 14 n. 11, we found his proffer sufficient to implicate the court's duty to help draft an acceptable theory-of-the-case instruction, see People v. Moya, 182 Colo. 290, 292-93, 512 P.2d 1155, 1156 (1973).

Unlike in Jones, the tendered instruction in Beckett made no attempt to explain the defendant's right of self-defense in terms of what the defendant reasonably believed to be the imminent use of unlawful physical force by his particular victim or his victim's "asso-clates." Jones, 675 P.2d at 13. Instead, Beckett dealt with "an amplifying self-de*1097fense instruction concerning 'apparent necessity," 800 P.2d at 75, and made clear that nothing beyond the words of the self-defense statute was required, id. at 78. In Beckett, we clearly did not understand Jones to sanetion, much less mandate, such an "amplifying self-defense instruction" for cases involving multiple assailants, and our holding in that case left no room for such a requirement in any event.

As in Beckett, the tendered instruction at issue in the case now before us made no attempt to explain the defendant's theory of the case by relating the cireumstances as he perceived them to be to the law of self-defense. Rather, it merely paraphrased a portion of our rationale in Jones, which was never offered or intended as appropriate language for a jury instruction. See People v. Riley, 708 P.2d 1359, 1366 (Colo.1985)(cautioning courts about the danger of taking abstract statements from appellate court opinions and formulating instructions of law based thereon); see also Denver Tramway Corp. v. Kuttner, 95 Colo. 312, 318, 35 P.2d 852, 854 (1934). In addition to suffering from the same defect as the instruction in Jones, failing as it did to limit the jury's consideration to others who not only appeared to threaten the defendant but whom the defendant reasonably believed to be acting in concert with the victim, the tendered instruction was clearly phrased as an instruction of law, amplifying the statutory definition of self-defense itself. Finally, unlike Jones, where the trial court deprived the defendant of the right to act on reasonable appearances by ruling that he was entitled to use force against the vietim only in response to the imminent use of unlawful force by the victim alone, the trial court in this case rejected the defendant's tendered instruction solely as duplicative and amounting to a comment on the evidence, and it made clear to defense counsel the appropriateness of further explanation by him in argument to the jury.

Whether a defendant is entitled to an instruction explaining his theory in terms of his perceived need to use physical force against the victim, at least in part, to defend himself from concerted action of the victim and others must remain a matter for the trial court based on the evidence of each case. I believe it to be clearly established, however, that nothing beyond a self-defense instruction couched in the language of the statute is required to fully apprise the jury of the defendant's right to act on reasonable appearances.

I therefore concur in the judgment of the court.