People v. Hayward

• Decision Date: 14 February 2002
• Docket Number: No. 99CA1507.,99CA1507.
• Citation: 55 P.3d 803
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gerald HAYWARD, Defendant-Appellant.
• Court: Colorado Court of Appeals

55 P.3d 803

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Gerald HAYWARD, Defendant-Appellant.

No. 99CA1507.

Colorado Court of Appeals, Div. V.

February 14, 2002.

Rehearing Denied April 11, 2002.

Certiorari Denied October 15, 2002.¹

Ken Salazar, Attorney General, Cynthia A. Greenfield, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Willett & Mestas, LLC, Jonathan S. Willett, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Gerald Hayward, appeals the judgment of conviction entered upon a jury verdict finding him guilty of second degree assault. Defendant also appeals the sixteen-year sentence imposed on that conviction. We affirm.

The victim testified that she answered the door of her residence and encountered defendant, her estranged husband, who was at the time subject to a restraining order. According to the victim, defendant forced his way into the residence and repeatedly stabbed her with a knife.

In contrast, defendant testified that the victim answered the door brandishing a knife. According to defendant, the victim sustained accidental injuries during a struggle for control of the knife. Defendant admitted that he was aware of the restraining order that prohibited him from being at the victim's residence.

I.

Defendant first argues that the trial court erred by instructing the jury concerning the victim's right to defend herself in her dwelling in conjunction with its instructions on the affirmative defense of self-defense. We disagree. A defendant is entitled to a properly instructed jury. People v. Hill, 182 Colo. 253, 512 P.2d 257 (1973).

In discharging the duty to instruct the jury properly on all matters of law, the trial court may instruct the jury concerning a principle of law that is related to an issue in controversy. See People v. Gilbert, 12 P.3d 331, 340 (Colo.App.2000)

.

Jury instructions framed in the language of statutes are adequate and proper. People v. Dago, 179 Colo. 1, 497 P.2d 1261 (1972); People v. Burke, 937 P.2d 886 (Colo. App.1996).

Section 18-1-704(1), C.R.S.2001, defines the affirmative defense of self-defense in pertinent part as follows:

[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.

A reasonable belief that one is defending against the use of unlawful force is the touchstone of self-defense. See People v. Silva, 987 P.2d 909 (Colo.App.1999)

. The defendant must hold a reasonable belief that the appearance of danger, whether real or apparently real, justifies the actions taken. Beckett v. People, 800 P.2d 74 (Colo.1990). Self-defense under § 18-1-704(1) takes into account both the reasonable belief and the actual belief of the defendant. People v. Willner, 879 P.2d 19 (Colo.1994).

Here, the trial court correctly instructed the jury that:

It is an affirmative defense to the crime of ... assault in the second degree that the defendant used physical 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 the victim, and

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

(3) he is not the initial aggressor.

The trial court further instructed the jury that defendant "was not obliged to retreat or flee to save his life, but had the right to stand his ground and use deadly force if he reasonably believed the use of such force was necessary for self-protection."

Finally, the court instructed the jury, over defendant's objection, as follows:

Any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

This latter instruction was a verbatim statement of Colorado's so-called "make my day" law, § 18-1-704.5(2), C.R.S.2001.

We perceive no error in the trial court's decision to give the latter instruction. By definition, self-defense is only available as an affirmative defense if a defendant "reasonably believes" there is use or imminent use of "unlawful physical force" by the victim. Section 18-1-704(1). In this case, whether the victim used unlawful physical force (as asserted by defendant) turned on the question whether defendant unlawfully entered the dwelling with intent to commit a crime against her by means of physical force (as asserted by the victim).

In People v. Toler, 9 P.3d 341 (Colo.2000), the supreme court discussed, albeit in a different context, whether trespassers have a right to self-defense. The court first stated that a person who is not where he or she has "a right to be" in many instances retains the privilege to use force in self-defense irrespective of his or her status as a trespasser. However, the court nevertheless noted that, in the context of a duty to retreat, a trespasser using force in self-defense is not necessarily in the same position as an "innocent person." The court noted that the occupant of a dwelling may lawfully use physical force, including deadly force, against trespassers in defense of a dwelling under the "make my day" provisions. The court then stated:

Under [§§ 18-1-704.5 and 18-1-705, C.R.S.2001], a trespasser who is subjected to lawful physical force by the owner or occupant of property or premises has no privilege to use physical force in self-defense because the privilege under section 18-1-704 applies only when the defendant faces unlawful force. Thus, because trespassers face the possibility of lawful physical force by a person defending against the trespass, they are not in the same position as an otherwise innocent person or "true man" with respect to the privilege of using force in self-defense.

9 P.3d at 353 (emphasis in original).

Accordingly, and contrary to defendant's contention, whether he was legally entitled to employ force in self-defense and further to obtain an instruction at trial concerning it was dependent upon whether he made an unlawful entry into the dwelling. Because those facts were in dispute here, the instruction was properly given.

Furthermore, the question whether defendant's belief that he was defending against the use of unlawful force was objectively reasonable would turn in part on whether he knew or should have known about the victim's right to use force while in her dwelling and the nature of the force she could use. Because every person is generally presumed to know the law, see Dikeman v. Charnes, 739 P.2d 870 (Colo.App.1987),

it is presumed that defendant knew the victim could employ lawful force against him if he unlawfully entered her dwelling.

We reject defendant's suggestion that this instruction shifted the burden of proof by requiring him to prove that the victim's use of physical force was unlawful. The elemental instruction defining second degree assault informed the jury that the prosecution had the burden of disproving the affirmative defense of self-defense beyond a reasonable doubt. The instruction outlining the circumstances in which the occupant of a dwelling may lawfully use force against an intruder did not establish the existence of those circumstances or otherwise lessen the prosecution's burden of disproving defendant's assertion that the victim used unlawful physical force.

Nor are we persuaded by defendant's alternative argument that it was error to give this instruction because the court's self-defense instruction stated that the defense was unavailable if defendant was the "initial aggressor" without also explaining that an initial aggressor can act in self-defense to unlawful physical force after he or she has effectively communicated an intent to withdraw from the affray. Defendant did not object to the absence of such language. More importantly, there was no evidence presented that would have supported an instruction on withdrawal by an initial aggressor.

Moreover, the trial court did instruct the jury, as set forth above, that defendant was not obligated to retreat before defending himself. We specifically do not address the propriety of that instruction under People v. Toler, supra,

in the context of this case because, even if erroneously given, the instruction inured to defendant's benefit by giving him a greater right to use self-defense than might otherwise have been available.

Defendant does not argue that further instruction concerning the use of the "make my day" instruction should have been given. Nonetheless, in our view the better practice would be for the trial court to give an instruction to the jury indicating that, in determining whether a defendant has unlawfully entered a dwelling and whether the defendant reasonably believed that unlawful force was used or imminent, the statutory "make my day" provision should be considered. See People v. Burke, supra

(whether to give additional written jury instructions that properly state the law and fairly and adequately cover the issues is a matter committed to the sound discretion of the trial court).

II.

Defendant next argues that the trial court's responses to the jury's communications concerning its deliberations had the effect of coercing a verdict. We are not persuaded.

In People v. Lewis, 676 P.2d 682, 689 (Colo.1984), the supreme court established guidelines for instructing a...