People v. Joyce, No. 01CA1352.

• Docket Nº: No. 01CA1352.
• Citation: 68 P.3d 521
• Case Date: October 10, 2002
• Court: Court of Appeals of Colorado

68 P.3d 521

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
James C. JOYCE, Defendant-Appellant

No. 01CA1352.

Colorado Court of Appeals, Div. IV.

October 10, 2002.

Rehearing Denied November 14, 2002.

Certiorari Denied May 12, 2003.

68 P.3d 523

Ken Salazar, Attorney General, Michelle L. Prince, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Hollis A. Whitson, P.C., Hollis A. Whitson, Eric A. Samler, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAVIDSON.

Defendant, James C. Joyce, appeals from a judgment entered on a jury verdict finding him guilty of attempted second degree kidnapping, assault, and false imprisonment. We affirm.

Defendant and his son woke the victim from his sleep, hit him multiple times, and took him from his room, allegedly intending to take the victim to jail. At some point, the victim was handcuffed. The victim broke free and ran out of the apartment. Defendant's son pursued and seized the victim and brought him back to the apartment, at which point police arrived.

Defendant asserted self-defense. However, the trial court refused to allow defendant to argue as an alternative defense that, because he believed the victim had previously been involved in a robbery, he was effecting a citizen's arrest.

I.

Defendant contends that the trial court erred in refusing to allow him to assert an affirmative defense alleging use of physical force necessary to effect an arrest by a private person pursuant to § 18-1-707(7), C.R.S.2002, and in instructing the jury that the defense did not apply as a matter of law because defendant had not witnessed the victim's alleged crime. We disagree.

Section 18-1-707(7) states:

A private person acting on his own account is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to effect an arrest, or to prevent the escape from custody of an arrested person who has committed an offense in his presence ....

However, § 16-3-201, C.R.S.2002, provides that "A person who is not a peace officer may arrest another person when any crime has been or is being committed by the arrested person in the presence of the person making the arrest."

Defendant does not dispute that the plain language of § 16-3-201 authorizes a private person to arrest another when a crime is committed in his or her presence. Nonetheless, defendant argues, in § 18-1-707(7), the phrase "who has committed an offense in his presence" only applies to the second clause, "to prevent the escape from custody of an arrested person," and does not apply to a person simply effecting an arrest. Thus, he maintains, he was entitled to assert the use of physical force as a defense. We disagree.

The goal in interpreting any statute is to determine and give effect to the intent of the General Assembly by looking first to the language of the statute itself. A statutory scheme must be read as a whole and interpreted so as to give consistent, harmonious, and sensible effect to all its parts. State v. Nieto, 993 P.2d 493 (Colo.2000); People v. Garcia, 64 P.3d 857 (Colo.App.2002). Moreover, when interpreting two statutory sections, we must attempt to harmonize them to give effect to their purposes and, if possible, reconcile them so as to uphold the validity of both. Norsby v. Jensen, 916 P.2d 555 (Colo. App.1995).

Here, the two statutes serve related, but different, purposes. On the one hand, § 16-3-201 concerns the authority of a person who is not a peace officer to make an arrest in certain circumstances. On the other hand, § 18-1-707(7) is part of the article codifying

68 P.3d 524

affirmative defenses including, inter alia, the use of physical force. Whereas the former statute explains who can make arrests and under what circumstances, the latter sets forth when a person lawfully effecting an arrest is permitted to use physical force

Thus, read in proper context, § 18-1-707 applies to persons otherwise authorized to make arrests, namely peace officers, and, pursuant to § 16-3-201, private persons. Hence, contrary to defendant's contention, an arrest must first be authorized under § 16-3-201 before a private person can use physical force to effect it under § 18-1-707(7). Furthermore, when a person already under arrest has attempted an escape, the second clause of § 18-1-707(7) similarly permits a private person to use physical force but, again, only when the attempted escape is committed in his or her presence.

Here, defendant concedes that the victim did not commit a crime in his presence. As a result, defendant was not authorized to make an arrest and, therefore, was not justified in using physical force against the victim. Thus, the court did not err by precluding the affirmative defense. Likewise, the court correctly instructed the jury that the defense did not apply.

II.

Defendant next contends that the court erred by admitting certain hearsay statements from two witnesses. Because these arguments are made for the first time on appeal, we review them under a plain error standard. See People v. Fuller, ...