Idrogo v. People, 90SC332

Decision Date07 October 1991
Docket NumberNo. 90SC332,90SC332
Citation818 P.2d 752
PartiesAnthony M. IDROGO, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtColorado Supreme Court

David F. Vela, State Public Defender, Martin J. Gerra, III, Deputy State Public Defender, Denver, for petitioner.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., John J. Krause, Asst. Atty. Gen., Denver, for respondent.

Justice KIRSHBAUM delivered the Opinion of the Court.

Appellant Anthony M. Idrogo was convicted by a jury of the offenses of reckless manslaughter, in violation of section 18-3- 104(1)(a), 8B C.R.S. (1986), 1 and crime of violence, in violation of section 16-11-309, 8A C.R.S. (1986). The jury also found Idrogo to be a habitual criminal, in violation of section 16-13-101(2), 8A C.R.S. (1986). At trial, Idrogo tendered a jury instruction describing the limits of a person's duty to retreat when attacked by another person. The trial court refused to give the instruction to the jury, and the Court of Appeals affirmed the trial court's decision in the unpublished opinion of People v. Idrogo, No. 87CA1250 (Colo.App. March 22, 1990) (not selected for official publication). Having granted Idrogo's petition for certiorari to consider the propriety of the trial court's ruling, we reverse and remand with directions.

I

On the evening of September 6, 1985, while Idrogo and a companion, Carol Babb, were walking toward their Colorado Springs home, Idrogo entered a liquor store to purchase cigarette rolling papers. 2 Raymond Archuleta and his brother, William, were inside the store. William, who was extremely intoxicated, followed Idrogo out of the store and repeatedly requested that Idrogo sell him a marijuana cigarette. Idrogo refused and told William to "leave us alone," but William repeated his request. When Idrogo and Babb began to back away from William, requesting that he leave them alone, William pursued them and insisted that Idrogo sell him some marijuana. Idrogo then removed a knife from a purse carried by Babb, showed it to William, and stated "You don't want to get cut. Just leave us alone." William stopped, and Idrogo and Babb continued to move backwards away from him.

At about that time Raymond Archuleta, who was also intoxicated, appeared on the scene, began to walk rapidly toward Idrogo, and asked "Are you messing with my bro?" Idrogo and Babb continued to slowly back away, and Idrogo displayed the knife to Raymond, stating "Leave us alone. We're getting out of here. We don't want trouble." Raymond nevertheless continued to walk rapidly toward the couple, raised his fists, and ultimately caught up with them. A fight ensued, during which Raymond struck Idrogo and Idrogo stabbed Raymond once. Raymond died a short time later. A deputy coroner testified that Raymond's death resulted from the single wound.

At trial Idrogo tendered the following instruction to the trial court at the conclusion of the evidence:

The Defendant, if he did not provoke the assault, is not obliged to retreat or flee to save his life, but may stand his ground, and even in some circumstances, pursue his assailant until the latter has been disarmed or disabled from carrying into effect his unlawful purpose, and this right of the Defendant goes even to the extent, if necessary, of taking human life.

In rejecting this tendered instruction, the trial court stated as follows:

[A]s far as retreating to the wall, et cetera, the Court finds that this goes too far. And taking into consideration the model jury instructions on the law of self-defense, that this instruction, even going so far as to say that one is entitled to pursue his assailant until the latter has been disarmed or disabled from carrying into effect his unlawful purpose, and this right of the Defendant goes to the extent, if necessary, of even taking human life, I don't think is an ideal statement of the law of self-defense as it stands in the State of Colorado at this time.

The jury ultimately found Idrogo guilty of the lesser included offense of reckless manslaughter and also returned guilty verdicts to the counts alleging crime of violence and habitual criminal.

On appeal, the Court of Appeals affirmed the trial court, stating that:

Under the language of this instruction, defendant would have us take the "no duty to retreat" doctrine a step further by instructing a jury that a right exists to take a life. That theory does not reflect the state of the law and failure to so instruct does not constitute error.

II

Idrogo asserts that the trial court and the Court of Appeals erred because the instruction he tendered accurately reflected the law of self-defense in this jurisdiction in relation to the facts of this case. While we conclude that a portion of the tendered instruction is inaccurate, we also conclude that in the circumstances of this case Idrogo was entitled to an instruction explicitly explaining the doctrine of no-retreat as codified in section 18-1-704(2)(a), 8B C.R.S. (1986).

The affirmative defense of self-defense is codified at section 18-1-704, 8B C.R.S. (1986). That statute states, in pertinent part, as follows:

(1) ... 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 or another person is in imminent danger of being killed or of receiving great bodily injury....

§ 18-1-704(1) and (2)(a), 8B C.R.S. (1986). We have consistently held that where the record contains any evidence tending to establish the defense of self-defense, the defendant is entitled to have the jury properly instructed with respect to that defense. See, e.g., People v. Dillon, 655 P.2d 841 (Colo.1982); Young v. People, 47 Colo. 352, 107 P. 274 (1910). We have also held that although an instruction couched in terms of the language of the statute is proper, Vigil v. People, 143 Colo. 328, 353 P.2d 82 (1960), a trial court must tailor instructions to the particular circumstances of a given case when the instructions, taken as a whole, do not adequately apprise the jury of the law of self-defense from the standpoint of the defendant. People v. Jones, 675 P.2d 9 (Colo.1984); Young v. People, 47 Colo. 352, 107 P. 274. See also Bustamonte v. People, 157 Colo. 146, 401 P.2d 597 (1965). See generally, Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).

The People do not dispute that, given the testimony adduced at trial, Idrogo was entitled to have the jury instructed on the issue of self-defense. The People assert, however, that the instruction tendered by Idrogo contained an incorrect statement of law. The People argue that even though there is no general duty to retreat before acting in self-defense, such a duty arises before a defendant may use deadly force. We reject this argument. Furthermore, while we acknowledge that Idrogo's tendered instruction is in part erroneous, we do not agree that the trial court was therefore free to disregard Idrogo's request for a no-retreat instruction.

At common law, one had a duty to retreat before resorting to force to defend against an aggressor. See People v. Watson, 671 P.2d 973 (Colo.App.1983). The common-law doctrine was modified in this jurisdiction just prior to the turn of the century. Boykin v. People, 22 Colo. 496, 45 P. 419 (1896).

The General Assembly has in essence codified the principles developed by this court. Beckett v. People, 800 P.2d 74, 78 (Colo.1990). 3 In section 18-1-704(2), the General Assembly has expressly authorized the use of deadly physical force by a non-aggressor when the non-aggressor believes, on reasonable grounds, that he, she or another person is in imminent danger of receiving great bodily harm. The statute contains no language reflecting any intention by the General Assembly to revive the doctrine of retreat.

In Boykin, we articulated the right of a person to resort to self-defense as follows:

[W]here a defendant is where he has a right to be, as, for example, a police officer engaged in making an arrest, and is assaulted by the deceased in a way that defendant honestly and in good faith believes, and the circumstances being such as would induce a like belief in a reasonable man, that he is about to receive at the hands of his assailant great bodily harm, or to lose his life, the defendant, if he did not provoke the assault, or is not within some of the exceptions above noted, is not obliged to retreat or flee to save his life, but may stand his ground, and even, in some circumstances, pursue his assailant until the latter has been disarmed or disabled from carrying into effect his unlawful purpose; and this right of the defendant goes even to the extent, if necessary, of taking human life.

Boykin v. People, 22 Colo. 496, 504, 45 P. 419, 422. Idrogo's tendered instruction was modeled on our language in Boykin. The People argue that Boykin is inapplicable because it dealt with conduct of a police officer, and the common law consistently recognized that a police officer attempting to effect a lawful arrest was not subject to the general rule requiring retreat before using deadly force. See Lynn v. People, 170 Ill. 527, 48 N.E. 964 (1897); State v. Smith, 127 Iowa 534, 103 N.W. 944 (1905); State v. Ellis, 241 N.C. 702, 86 S.E.2d 272 (1955). See also Ealey v. City of Detroit, 144 Mich.App. 324, 375 N.W.2d 435 (1985); People v. Johnson, 75 Mich.App. 337, 254 N.W.2d 667 (1977). Although it is true that Boykin involved a police...

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