Beckett v. People

• Decision Date: 29 October 1990
• Docket Number: No. 89SC417,89SC417
• Citation: 800 P.2d 74
• Parties: John C. BECKETT, Jr., Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 74

800 P.2d 74

John C. BECKETT, Jr., Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 89SC417.

Supreme Court of Colorado,

En Banc.

Oct. 29, 1990.

Rehearing Denied Nov. 19, 1990.

Griffith, Beach & Allin, Bradford L. Allin, Fort Collins, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for respondent.

Theodore Koeberle, Boulder, Robert Dowlut, Washington, D.C., for amicus curiae The National Rifle Ass'n.

Chief Justice ROVIRA delivered the Opinion of the Court.

The defendant John Beckett Jr. petitioned for certiorari review of the court of appeals decision in People v. Beckett, 782 P.2d 812 (Colo.App.1989). After a jury trial, the defendant was convicted of felony menacing with a deadly weapon, § 18-3-206, 8B C.R.S. (1986), and prohibited use of weapons, § 18-12-106(1)(d), 8B C.R.S. (1986). In Beckett, the court of appeals held that the trial court did not err in refusing the defendant's "apparent necessity" self-defense jury instruction. We granted certiorari to consider the court of appeals decision, and we now affirm. ¹

I

In May 1987, the defendant and his friend, while attending a party, became involved in an altercation with Ralph Cirillo and two of his friends. As the defendant left the party and Cirillo and his friends followed him to his car, the defendant raised his hand to one of Cirillo's friends and stated, "You're this close to death." When the defendant reached his car, he reached under the front seat, pulled out an automatic pistol, pointed it at Cirillo, and stated, "This is all it takes, pal." Subsequently, the defendant was disarmed and restrained until the police arrived. The defendant testified at trial that Cirillo and his friends were large persons, that they were angry, and that he was afraid Cirillo and his two friends would harm him.

At the conclusion of all the evidence, the defendant tendered a self-defense jury instruction stating that "[o]ne may act in self-defense on the basis of apparent necessity, or a reasonable but erroneous belief that the use of unlawful physical force is imminent." The tendered instruction also stated that self-defense was an affirmative defense to the crimes of felony menacing and prohibited use of weapons.

The trial court refused the tendered instruction. The court also ruled that the defendant was not entitled to a self-defense instruction on the count alleging prohibited use of weapons. The court of appeals affirmed, holding that the defendant's tendered "apparent necessity" instruction was "merely redundant," and that self-defense could not be an affirmative defense to a prohibited-use-of-weapons charge. People v. Beckett, 782 P.2d 812, 813 (Colo.App.1989).

II

We first consider the defendant's argument that the court of appeals erred in concluding that the defendant was not entitled to an amplifying self-defense instruction concerning "apparent necessity."

Section 18-1-704, 8B C.R.S. (1986), sets forth the statutory affirmative defense of self-defense. The statute provides in relevant part:

(1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.

(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:

(a) The actor has reasonable ground to believe, and does believe, that he ... is in imminent danger of being killed or of receiving great bodily injury....

(Emphasis supplied.)

The defendant relies on Young v. People, 47 Colo. 352, 107 P. 274 (1910), and People v. Tapia, 183 Colo. 141, 515 P.2d 453 (1973), for the proposition that an "apparent necessity" jury instruction is required in self-defense cases. ² We find those cases inapposite.

In Young, this court held that the trial court's self-defense instructions, which were based on the existing self-defense statutes, see §§ 719-721, Gen.Stats. of Colo. (1883) ³, were inadequate. The trial court instructed the jury in relevant part that:

Justifiable homicide is the killing of a human being in necessary self-defense of ... person, against one who manifestly intends or endeavors by violence to commit a known felony ... upon any person or persons....

A bare fear of any of these offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge.

[T]he right to self-defense is only given in emergencies ⁴ to enable persons who are attacked and to whom it may reasonably appear, that their lives or bodies are in danger of great bodily injury, to defend themselves; that this right is based upon what reasonable persons, having due regard for human life, would do under similar circumstances .... Self defense is not available where defendant is not reasonably freed [sic] from fault nor unless there is evidence tending to show that he either was or appeared to be menaced at the time by some overt act on the part of the assailant of a character to create reasonable apprehension of danger of his life or of great bodily harm.

Young, 47 Colo. at 353-54, 107 P. at 275. This court held that the jury instruction failed to apprise the jurors that the defendant, who according to his testimony was threatened with death or great bodily injury, had the right under the doctrine of self-defense to defend himself against "apparent" danger:

[T]he defendant had a constitutional right to have a lucid, accurate and comprehensive statement by the court to the jury of the law on the subject of self-defense from his standpoint, upon the supposition that the jury might believe ... his testimony, and that of his witnesses....

It is fundamental that the law of self-defense, which is emphatically a law of necessity, involves the question of one's right to act upon appearances, even though such appearances may prove to have been deceptive; also the question of whether the danger is actual or only apparent, and as well the fact that actual danger is not necessary, in order to justify one in acting in self-defense. Apparent necessity, if well grounded and of such a character as to appeal to a reasonable person, under like conditions and circumstances, as being sufficient to require action, justifies the application of the doctrine of self-defense to the same extent as actual or real necessity.

Id. at 355, 107 P. at 275-76.

In Tapia, this court, quoting the above language in Young, held that a self-defense jury instruction--which was based on the then-existing self-defense statutes, see Tapia, 183 Colo. at 146, 515 P.2d at 455; § 40-2-13 to -15, 3 C.R.S. (1963)--similar to the instruction given in Young failed to apprise the jury that the defendant was entitled to use self-defense based upon " 'appearances of danger [whether] real or apparently real, so as to justify action in self-defense.' " 183 Colo. at 145-46, 515 P.2d at 455 (quoting Young, 47 Colo. at 356, 107 P. at 276).

In 1971, the legislature repealed the self-defense statutes on which the jury instructions in Young and Tapia were based, and enacted section 40-1-804, which is almost identical to the current self-defense statute, section 18-1-704. 1971 Colo.Sess.Laws 388, 409. Since the enactment of sections 40-1-804 and 18-1-704, this court has not considered ⁵ whether the Young and Tapia requirement of an "apparent necessity" jury instruction continues to be necessary. ⁶

In this case the self-defense jury instruction, Instruction No. 14, which was based on section 18-1-704, stated:

It is an affirmative defense to the crime of felony menacing that the defendant threatened force upon another person:

1. in order to defend himself from what he reasonably believed to be the use or imminent use of unlawful physical force by Mr. Cirillo; and

2. he threatened to use a degree of force which he reasonably believed to be necessary for that purpose. ⁷

(Emphasis supplied.) We do not construe section 18-1-704 as eliminating an individual's right to use self-defense based on "apparent necessity." The statute "reflects what has long been the settled law of this jurisdiction, namely, reasonable belief rather than absolute certainty is the touchstone of self-defense." People v. Jones, 675 P.2d 9, 13 (Colo.1984). The statute is thus free from the defects we identified in Young. See Young, 47 Colo. at 355-56, 107 P. at 275-76. Instruction No. 14 informed the jury that the defendant was entitled to defend himself if he "reasonably believed" that Cirillo used, or would imminently use, unlawful physical force against him.

In Jones, the defendant tendered a self-defense jury instruction almost identical to the self-defense instruction given to the jury in this case. The tendered instruction provided:

It is an affirmative defense to the crime of Second Degree Assault that the defendant used the physical force upon another person:

(1) In order to defend himself or a third person from what he reasonably believed to be the use or imminent use of unlawful physical force by [the victim] or his associates, and

(2) He used a degree of force which he reasonably believed to be necessary for that purpose.

675 P.2d at 13. Although in Jones we did not specifically consider whether an "apparent necessity" instruction was required, we approved of the instruction while noting that the instruction was somewhat ambiguous as applied in that case. See id. at 14.

People v. Tippett, 733 P.2d 1183, 1195 (Colo.1987), is...