People of The State of Colo. v. RILEY

• Decision Date: 19 November 2009
• Docket Number: No. 08CA0157.,08CA0157.
• Citation: 240 P.3d 334
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony Douglas RILEY, a/k/a Anthony Douglas Pryor-Riley, Defendant-Appellant.
• Court: Colorado Court of Appeals

240 P.3d 334

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Anthony Douglas RILEY, a/k/a Anthony Douglas Pryor-Riley, Defendant-Appellant.

No. 08CA0157.

Colorado Court of Appeals,Div. V.

Oct. 1, 2009.

Rehearing Denied Nov. 19, 2009.

COPYRIGHT MATERIAL OMITTED.

John W. Suthers, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Stephen Arvin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge GRAHAM.

Defendant, Anthony Douglas Riley, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempted reckless manslaughter, reckless second degree assault, and a crime of violence. We affirm.

On or about January 7, 2006, N.P. and her brother, G.V., were shopping at EZ Market in Aurora. Defendant was also there. Defendant testified that while waiting in line at the back of the store, N.P. provocatively touched him from “the back on [his] butt.” N.P. testified that she accidentally bumped into defendant with her arm or shoulder. In any event, when N.P. apologized to defendant, defendant turned around and told her, “Bitch, you got to pay to touch me.” Defendant testified that N.P. began “putting on a scene, getting loud inside the store,” and to defuse the situation, he walked outside to the front of the store to wait for a friend. Meanwhile, N.P. found G.V. in the front of the store and told him what had happened.

Shortly thereafter, N.P. and G.V. walked out of the store near where defendant was standing. N.P. testified that a verbal altercation ensued between defendant and G.V. and that G.V. said to defendant, “What's up nigga?” Defendant testified that G.V. approached him and said, “What's up, Nigger, you got a problem?” Defendant felt this remark “was real confrontational” and responded, “I'm not your Nigger.” Defendant testified that G.V. then said, “Whatever, Cuz, I get down and she do too,” referring to N.P. Defendant stated that, in this context, he interpreted the term “cuz” to mean an “invitation to a confrontation.”

A hostile argument ensued between defendant and G.V., and they began “wrestling, tussling.” According to defendant, as they were wrestling, G.V. told N.P. to “grab the heat from the truck.” Defendant believed the term “heat” meant a gun, and so he took a knife out of his pocket and “swung it” at G.V. The knife hit G.V.'s neck, leaving a wound, but no damage to any vital structures.

According to N.P., after defendant stabbed G.V. in the neck, G.V. told N.P. to “[r]un for [her] life,” but instead she walked toward defendant, yelling at defendant to leave G.V. alone and to come get her. Defendant tried to stab N.P. with the knife, but only the tip of the knife “touched” her neck. Defendant hit her several times in the head and face until she was able to run away. Defendant testified that he fled the encounter when he heard G.V. again tell N.P. “to grab the heat from the truck.”

Defendant was charged with attempted second degree murder (G.V.), first degree assault (G.V.), menacing (N.P.), attempted second degree assault (N.P.), and crime of violence. The jury convicted him of the lesser included charges of attempted reckless manslaughter (G.V.) and reckless second degree assault (G.V.) and the crime of violence sentence enhancer. The jury acquitted defendant of all other charges. Defendant was sentenced to concurrent three-year sentences in the Department of Corrections.

This appeal followed.

I. Jury Instructions on Self-Defense

Defendant contends that the trial court did not instruct the jury accurately on the law of self-defense. Specifically, he asserts that the trial court erred in refusing two of his tendered self-defense instructions and in misstating the law of self-defense during defense counsel's closing arguments. We perceive no reversible error.

The trial court must properly instruct the jury on all matters of law. People v. Phillips, 91 P.3d 476, 480 (Colo.App.2004). Jury instructions must be read and considered as a whole, and there is no reversible error if the instructions adequately inform the jury of the law. People v. Galimanis, 944 P.2d 626, 630 (Colo.App.1997). Jury instructions framed in the language of the relevant statutes are generally sufficient and proper. People v. Dago, 179 Colo. 1, 4, 497 P.2d 1261, 1262 (1972); Phillips, 91 P.3d at 483.

It is unnecessary to give instructions that are already encompassed in other instructions. Phillips, 91 P.3d at 483. Although a defendant has a right to have his or her theory of defense embodied in the instructions given to the jury, the instructions need not include the particular language tendered by the defendant. People v. Gracey, 940 P.2d 1050, 1054 (Colo.App.1996). No error occurs when the defendant's theory could be argued under the instructions, considered as a whole, given by the court. People v. Trujillo, 83 P.3d 642, 645 (Colo.2004).

The trial court has the discretion to determine whether additional jury instructions should be given. If the instructions properly state the law and fairly and adequately cover the issues presented, then there is no reversible error absent manifest prejudice or a clear showing of abuse of discretion. People v. Renfro, 117 P.3d 43, 48 (Colo.App.2004). It is only where the existing instructions do not fairly and adequately cover the issues that the trial court errs in rejecting a tendered, clarifying instruction. People v. Silva, 987 P.2d 909, 917 (Colo.App.1999).

Unless the failure to give an instruction amounts to an error of constitutional dimension, we will review for harmless error rather than for constitutional harmless error. Compare People v. Miller, 113 P.3d 743, 748 (Colo.2005), with Auman v. People, 109 P.3d 647, 665 (Colo.2005); see also Griego v. People, 19 P.3d 1, 8 (Colo.2001). Here, we will review the trial court's decision to reject defendant's tendered instruction under a general harmless error standard. See Crider v. People, 186 P.3d 39, 44 (Colo.2008).

Initially, we note that self-defense is not an affirmative defense to attempted reckless manslaughter or reckless second degree assault. See People v. Fink, 194 Colo. 516, 518, 574 P.2d 81, 83 (1978); People v. Roberts, 983 P.2d 11, 13 (Colo.App.1998). Nevertheless, defendants charged with these crimes who present evidence suggesting that they acted in self-defense are entitled to have the jury properly instructed with respect to that defense. See Roberts, 983 P.2d at 14.

Here, the trial court instructed the jurors using the standard instruction for self-defense (Instruction No. 20):

It is an affirmative defense to the crimes of Attempted Second Degree Murder, First Degree Assault, Second Degree Assault Causing Bodily Injury, Menacing, Attempted Second Degree Assault and Attempted Third Degree Assault that the defendant used physical force upon another person

1. In order to defend himself or a third person from what he reasonably believed to be the imminent use of unlawful physical force by the victim, and

2. the defendant used the degree of force which he reasonably believed to be necessary for that purpose.

Self defense is not an affirmative defense to the crimes of Attempted Manslaughter-Reckless, Attempted Second Degree Assault-Reckless.... However, you may consider the evidence presented on this issue as it relates to the question of whether the defendant acted “recklessly” ... as required for the commission of those crimes.

See CJI-Crim. 7:16 (1983); see also § 18-1-704, C.R.S.2009.

The trial court also gave the following additional jury instructions relating to self-defense:

Instruction No. 21 instructed the jury on apparent necessity:

When a person has reasonable grounds for believing, and does in fact actually believe, that danger of his being killed or receiving great bodily injury is imminent, he may act on such appearance and defend himself. A person may act on such appearances, even to the extent of taking a human life when necessary, although it may turn out that the appearances were false, or although he may have been mistaken as to the extent of the actual danger.

Apparent necessity, if well grounded and of such a character as to appeal to a reasonable person under similar conditions and circumstances, as being sufficient to require action, justifies the application of self-defense to the same extent as actual or real danger.

Instruction No. 22 stated: “[Defendant] is entitled under the law to exercise his right to self-defense without attempting to retreat or flee. A person has the right to stand his ground when confronted by another who [sic] he reasonably believes to be threatening or assaulting him.”

Finally, Instruction No. 23 instructed the jury on the initial aggressor exception:

A person is not justified in using physical force if:

1. with the intent to cause bodily injury to another person he provokes the use of unlawful physical force by that other person, or

2. he is the initial aggressor, except that the use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person the intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force.

See CJI-Crim. 7:18 (1983); see also § 18-1-704(3), C.R.S.2009.

A. Self-Defense and Multiple Assailants

Defendant contends that the trial court erred in refusing to instruct the jury, as he requested, that he had a right to defend himself against multiple assailants. Although we conclude that the trial court erred in refusing to give defendant's tendered instruction, we perceive that any error was harmless and there is no reasonable probability that the error led to defendant's conviction.

Here, defendant tendered the following instruction on multiple assailants:

The totality of the circumstances, including the number of person[s]...