People v. Darbe

• Decision Date: 09 May 2002
• Docket Number: No. 99CA2521.,99CA2521.
• Citation: 62 P.3d 1006
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Andrea DARBE, Defendant-Appellant.
• Court: Colorado Court of Appeals

62 P.3d 1006

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Andrea DARBE, Defendant-Appellant.

No. 99CA2521.

Colorado Court of Appeals, Div. IV.

May 9, 2002.

Rehearing Denied August 15, 2002.

Certiorari Denied January 21, 2003.

Ken Salazar, Attorney General, Dawn M. Weber, Assistant Attorney General, Cheryl Hone, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge MARQUEZ.

Defendant, Andrea Darbe, appeals the judgment of conviction entered on a jury verdict finding her guilty of second degree murder committed in the heat of passion. She also appeals her sentence to a term of twenty-two years in the Department of Corrections. We affirm.

Evidence was presented at trial that on the evening of December 18, 1998, defendant shot and killed her father. At the time of the shooting, there were four people in the father's gun shop where the shooting occurred, the father, defendant's mother and sister, and defendant. However, the testimony of the mother, sister, and defendant conflicted.

Defendant testified that during the previous week she was fearful of black men after being robbed at gun point while at her place of employment. Not wanting to be prejudiced as she had observed her father to be, she went to her father's shop the evening of December 18 to explain things to him "so he would stop being the way he was." Instead of talking about prejudice, she began talking and arguing with her father about how he had been treating her mother. According to defendant, she told her father that "if he hurt her [mother] ever again, [she] would kill him." Her father then proceeded to remove a gun from the holster he was wearing, cocked the gun, handed it to defendant, and said, "Go ahead and kill me because I'm not leaving her alone." Defendant stated that as he stepped towards her, she began shooting and continued to shoot until the gun was empty.

Defendant also presented extensive evidence of a history of physical and verbal abuse committed by her father against her, her mother, and her sister. Although the trial court instructed the jury on self-defense and accepted a portion of defendant's theory of defense instruction, it refused the remainder of defendant's tendered instructions on domestic violence.

I.

Defendant first contends that the trial court committed reversible error by refusing to instruct the jury that it could consider evidence of domestic violence in deciding whether defendant acted in self-defense or defense of others. We disagree.

Defendant tendered two instructions pertaining to self-defense. First, defendant tendered an instruction informing the jury of her right to act on appearances, which the trial court rejected in its entirety. Defendant does not challenge that ruling.

Defendant also tendered a second instruction, which stated:

[Defendant's] defense is that she acted in defense of persons as otherwise described in these instructions; and that [victim's] repeated physical, verbal and mental abuse, including threats to kill [defendant], her mother and her sister, reasonably caused her to act in self-defense and/or defense of others.

The evidence in this case has raised an issue concerning domestic violence. Domestic violence is not in and of itself a defense to a crime. However, if you find that [defendant] did suffer from domestic violence, that is evidence which you can use in deciding the issues relating to the affirmative defense of self-defense and defense of others.

The trial court agreed to submit the first paragraph of this instruction, but refused to submit the second paragraph, stating that the jury was adequately instructed on the issues in the case and that the theory of defense, without the language regarding domestic violence, was appropriately stated.

The trial court also provided the following instruction on self-defense, which tracked the language in CJI-Crim. 7:17 (1983) and conformed to § 18-1-704, C.R.S.2001:

It is an affirmative defense to the crime of Second Degree Murder that the defendant used deadly physical force because

1. she reasonably believed a lesser degree of force was inadequate, and

2. had reasonable grounds to believe, and did believe, that she or another person was in imminent danger of being killed or of receiving great bodily injury, or

3. the other person is committing or reasonably appeared to be about to commit assault in the first degree or assault in the second degree.

A.

Defendant asserts that the trial court's instruction did not inform the jurors that they could consider prior acts of domestic violence in determining whether her actions were reasonable. In her view, the instruction could have led the jurors to conclude that the history of abuse committed against defendant was not to be considered in determining whether she acted in self-defense or defense of others. We conclude the jury was adequately instructed.

When the record contains any evidence tending to establish self-defense, a defendant is entitled to have the jury properly instructed with respect to that defense. Idrogo v. People, 818 P.2d 752 (Colo.1991); People v. Garcia, 1 P.3d 214 (Colo.App.1999), aff'd, 28 P.3d 340 (Colo.2001).

An instruction couched in the language of the statute is generally considered to be sufficient. Further, it is unnecessary to give an instruction that is encompassed in other instructions given by the court. People v. Garcia, supra.

Self-defense under § 18-1-704 takes into account both the reasonable belief and the actual belief of the defendant. People v. Toler, 981 P.2d 1096, 1099 (Colo.App. 1998)(court may properly refuse to give an instruction that calls only for a subjective test), aff'd, 9 P.3d 341 (Colo.2000).

A self-defense instruction based on § 18-1-704 was expressly approved in Beckett v. People, 800 P.2d 74 (Colo.1990), as adequately advising the jury that it is to consider the totality of the circumstances in evaluating the reasonableness of the defendant's actions. Likewise, in Hare v. People, 800 P.2d 1317 (Colo.1990), the supreme court held that the instruction, which was very much like the self-defense instruction given here, permits the jury to consider, from the defendant's viewpoint, whether the defendant was justified in using physical force in self-defense.

Evidence of a victim's prior acts of violence may, in certain circumstances, be considered in the context of self-defense. See People v. Laurson, 15 P.3d 791 (Colo. App.2000)

(self-defense instruction permitted jury to consider the reasonableness of the defendant's actions given his knowledge of the victim's prior acts of violence); People v. Gallegos, 950 P.2d 629 (Colo.App.1997)(self-defense instruction permitted jury to consider whether the defendant acted reasonably given the victim's history of aggression towards him); People v. Yaklich, 833 P.2d 758, 761 (Colo.App.1991)(evidence of battered woman syndrome may, in certain circumstances, be considered in the context of self-defense).

As defendant points out in her opening brief, a division of this court has approved a battered woman syndrome instruction nearly identical to the portion of defendant's second tendered instruction that the trial court rejected here. See People v. Garcia, supra. However, the jury in that case was not given an instruction like the one the trial court approved here. The instruction given here described defendant's defense and stated her claim that the physical, verbal, and mental abuse by the father against defendant and her family reasonably caused her to act in self-defense or the defense of others.

We agree that defendant's knowledge of prior acts of domestic violence was relevant evidence for the jury to consider and that the rejected jury instruction was a correct statement of the law. However, it is not error for a court to refuse a tendered instruction, even if correct in legal effect, if the other instructions given adequately apprise the jury of the law. People v. Ridenour, 878 P.2d 23, 25 (Colo.App.1994).

Here, not only was the jury properly instructed, but also defendant was permitted to present extensive evidence of her exposure to domestic violence, and defense counsel was allowed to comment on that subject in opening statements and closing arguments. Defendant testified that she was the victim of physical and verbal abuse at the hands of her father throughout childhood until she was sixteen years old, although she admitted that at the time of the shooting she had not lived with her father for three years. Her testimony regarding family abuse was corroborated by her sister, her mother, and several family friends. In addition, a domestic violence expert testified on defendant's behalf that because of defendant's prior exposure to domestic abuse at the hands of her father, at the time of the shooting she "had direct fear for herself, her life, and her family."

Finally, the instruction on self-defense given here adequately advised the jury that it was to consider the totality of the circumstances in evaluating the reasonableness of defendant's actions. See Beckett v. People, supra; Hare v. People, supra. The self-defense instruction did not prohibit the jury from considering whether defendant suffered from domestic violence or considering evidence of domestic violence with respect to the affirmative defense of self defense. The cases from other jurisdictions on which defendant relies do not involve the sort of instructions given here and thus do not persuade us to reach a different result.

We conclude that the trial court did not err in rejecting defendant's additional self-defense instructions. See People v. Laurson, supra; People v. Gallegos, supra.

B.

Nor are we persuaded by defendant's contention that the prosecutor's cross-examination of defendant's expert witness and his comments during...