People v. Silva, 97CA0962.

• Decision Date: 15 April 1999
• Docket Number: No. 97CA0962.,97CA0962.
• Citation: 987 P.2d 909
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven SILVA, Defendant-Appellant.
• Court: Colorado Court of Appeals

987 P.2d 909

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven SILVA, Defendant-Appellant.

No. 97CA0962.

Colorado Court of Appeals, Div. V.

April 15, 1999.

As Modified on Denial of Rehearing May 27, 1999.

Certiorari Denied November 1, 1999.¹

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Miles D. Madorin, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, James Grimaldi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAVIDSON.

Defendant, Steven Silva, appeals from the judgment of conviction entered upon jury verdicts finding him guilty of attempted reckless manslaughter, first degree assault, and second degree assault. We reverse and remand for a new trial.

According to the evidence presented at trial, the two victims and their three friends went to a bar. However, two of the friends were denied admittance because of their age and decided to wait in the truck in which they were riding while the others went inside briefly. Also in the bar were defendant and his two friends. They left at about the same time as the victims.

Prior to the affray giving rise to the charges against defendant, there was no meeting or altercation between the two groups. However, as one of the victims' friends was about to get into the truck, he instead approached defendant and one of his friends. Words were exchanged and the other of defendant's friends came around from the far side of the truck and hit the victims' friend. The victims then came over and began hitting the person who had struck the first blow. Defendant and his friends and the victims and their friends entered into the affray.

As one of defendant's friends was fighting with the first victim, defendant jumped on his back, took out his knife, and began stabbing the first victim in the arm. The second victim, not knowing that defendant had a knife, knocked defendant off of the first victim. Defendant then turned around and swung at the second victim, stabbing him in the chest and arm. The victims and their friends fled. Defendant and his friends remained at the bar where defendant subsequently was arrested.

At trial, defendant asserted the affirmative defense of self-defense and defense of others. In support of his claim, he presented evidence that he had used justifiable force when the victims and their friend returned the first blow, made by defendant's friend, with excessive force. Therefore, he asserted, he had acted reasonably in coming to his friends' defense with his knife. Defendant was convicted of the charges from which he now appeals.

I.

Defendant first contends that the trial court erred in instructing the jury concerning self-defense. He does not argue that the instruction incorrectly stated the law of self-defense. Rather, he argues that the instruction was not supported by the evidence and was misleading to the jury. We agree.

The trial court has the duty to instruct the jury properly on all matters of law. People v. Hardin, 199 Colo. 229, 607 P.2d 1291 (1980).

An instruction on self-defense is warranted if there is some evidence to support it. However, the court should not instruct on an abstract principle of law unrelated to issues in controversy. People v. Goedecke, 730 P.2d 900 (Colo.App.1986) (instructions must reflect evidence produced at trial).

A.

Defendant argues that the trial court violated his right to present a defense by instructing the jury on the issue of provoking the victim as an exception to self-defense. We agree.

We note, initially, that the People argue that defendant's contention must be reviewed for only plain error because the grounds he asserts as error on appeal are not those he presented to the trial court. However, defendant argued before the court that he did not provoke anybody. That he did not provoke the victim and was not the initial aggressor, is, in effect, the sum and substance of defendant's argument at trial and on appeal. Thus, we consider defendant's contention as properly raised and preserved.

If the record contains any evidence tending to establish the affirmative defense of self-defense, then a defendant is entitled to have the jury properly instructed as to such defense. Idrogo v. People, 818 P.2d 752 (Colo.1991).

Here, the trial court, over defendant's objection, instructed the jurors, using the language of § 18-1-704(3)(a), C.R.S.1998, that:

3. A person is not justified in using physical force if:

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

Under the common law, a defendant could not avail himself of the defense of self-defense if the necessity for such defense was brought on by a deliberate act of the defendant, such as being the initial aggressor or acting with the purpose of provoking the victim into attacking. See Boykin v. People, 22 Colo. 496, 45 P. 419 (1896) (defendant who seeks the difficulty cannot later assert self-defense); Bush v. People, 10 Colo. 566, 16 P. 290 (1888) (although defendant's entering property to reclaim it was lawful, if such action was taken with intent to provoke the victim into an affray so that defendant, under such pretext, could kill victim, then self-defense is not a defense).

The provocation limitation on self-defense is codified under § 18-1-704(3)(a). See People v. Willner, 879 P.2d 19 (Colo.1994)

.

According to the plain language of the statute, a defendant's assertion of self-defense is lost if he or she acted with intent to provoke the victim into attacking first in order to provide the defendant with the excuse to injure or kill the victim. See People v. Willner, supra

(section 18-1-704(3)(a) governs the use of self-defense by the one who provokes the attack); Kelley v. State, 968 S.W.2d 395 (Tex.Ct.App.1998) (provocation instruction is used to inform jurors that a defendant forfeits his right to claim self-defense if he or she provoked the difficulty in order to have a pretext to kill or injure the victim).

In order to warrant the giving of this instruction, the prosecution has the burden of establishing that the defendant intended to harm the victim and that he or she intended the provocation to goad the victim into attacking him or her as a pretext for injuring or killing the victim. See Bush v. People, supra; State v. Heath, 35 Wash.App. 269, 666 P.2d 922 (1983)

(evidence showed that defendant's words and actions intentionally precipitated fight in which the victim was killed). In contrast to the initial aggressor limitation, the provocation limitation applies in situations where the defendant was not the initial aggressor.

An instruction on provoking the victim, therefore, should be given if: 1) self-defense is an issue in the case; 2) the victim makes an initial attack on the defendant; and 3) the defendant's conduct or words were intended to cause the victim to make such attack and provide a pretext for injuring the victim. See Kelley v. State, supra.

Here, although there was no dispute that there had been no confrontation between defendant and his friends and the victim and his friends either in the bar or in the parking lot as the two groups walked to their vehicles, there was conflicting evidence as to the cause of the fight. Evidence was presented that an argument started between defendant and one of his friends and one member of the other group after both groups had begun to get into their trucks; however, no witness could recall the content of the discussion or who had spoken first.

Further, the victims who were stabbed were not present when words first were exchanged. Indeed, the victims did not enter the fight until after defendant's friend had thrown the first punch. See Vigil v. People, 143 Colo. 328, 353 P.2d 82 (1960)

(one who has injected himself into a mild situation is not deprived of right of self-defense if the situation, beginning with only argument, develops to a point where physical force would be justified to protect himself); Bush v. People, supra (insulting language is not a provoking incident).

Viewing the evidence in a light most favorable to the giving of this instruction, People v. Cole, 926 P.2d 164 (Colo.App.1996), we conclude there simply was no evidence presented that defendant intended to provoke a fight with the victims or their friend so that he could inflict injury upon them under the guise of such provocation. In the absence of such evidence, it was error for the trial court to give the jury an instruction on provoking the victim. See State v. Turner, 33 Conn. App. 616, 637 A.2d 3 (1994) (defendant must intend to cause harm to victim under guise of provocation).

B.

Reversible error occurs if the instructions create a reasonable possibility that the jury could have been misled or improperly contribute to a defendant's conviction. Jury instructions must be considered as a whole in determining whether a particular instruction was so misleading as to constitute reversible error. People v. DeHerrera, 697 P.2d 734 (Colo.1985); People v. Wadley, 890 P.2d 151 (Colo.App.1994) (giving of improper jury instruction is reversible error if it materially and substantially prejudices defendant or affects outcome of trial).

If, as here, an affirmative defense is available under the statutory scheme, the trial court has the duty to determine if sufficient evidence has been presented to raise a factual issue as to the existence of the defense. See People v. Fincham, 799 P.2d 419 (Colo.App.1990)

(whether evidence raises affirmativedefense is a question of law).

Similarly, whether the evidence presented warrants giving a further instruction as to exceptions to the asserted affirmative defense also lies within the court's province.

Here, the court gave the provocation of the victim instruction over defendant's...