People v. Toler

• Citation: 9 P.3d 341
• Decision Date: 11 September 2000
• Docket Number: No. 98SC858.,98SC858.
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Tristan TOLER, Respondent.
• Court: Supreme Court of Colorado

9 P.3d 341

The PEOPLE of the State of Colorado, Petitioner, v. Tristan TOLER, Respondent.

No. 98SC858.

Supreme Court of Colorado, En Banc.

September 11, 2000.

Ken Salazar, Attorney General, John J. Fuerst III, Assistant Attorney General, Appellate Division, Denver, Colorado, Attorneys for Petitioner.

David Kaplan, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, Colorado, Attorneys for Respondent.

Justice BENDER delivered the Opinion of the Court.

I. INTRODUCTION

In this case, we address the use of deadly physical force in self-defense, which is established by statute under section 18-1-704, 6 C.R.S. (1999). The defendant, Tristan Toler, shot and killed Christy Martinez, claiming self-defense. Toler objected to the jury instruction defining self-defense, claiming that the instruction could have improperly misled the jury to believe that a trespasser must "retreat to the wall" before using physical force to defend himself. Despite Toler's objection, the trial court gave the jury instruction, and the jury convicted Toler of second degree murder. The court of appeals concluded that the jury instruction erroneously imposed a limitation on Toler's right to claim self-defense and reversed. See People v. Toler, 981 P.2d 1096, 1098 (Colo.App.1998)

.

We hold that under section 18-1-704 a person does not have to "retreat to the wall" before using deadly force to defend himself, unless the person was the "initial aggressor" in the encounter, even if he was in a place he had no right to be. Although a trespasser's right to use force in self-defense may be limited by other considerations not present in this case, a trespasser who is entitled to use physical force in self-defense must "retreat to the wall" before using physical force to defend himself only when the trespasser is also the "initial aggressor." Under the facts of this case, the jury instruction on self-defense could have misled the jury to believe erroneously that Toler, since he was where he had no right to be (i.e., a trespasser), had a duty to "retreat to the wall" before using deadly force in self-defense. Because under Colorado law only an initial aggressor has a duty to retreat, the jury instruction in this case was erroneous. Thus, we affirm the court of appeals decision, and we remand this case to that court with instructions to return it to the trial court for a new trial.

II. FACTS AND PROCEDURAL HISTORY

Toler and two of his companions—fellow gang members Dominic Baca and Eugene Sanchez—consumed alcohol and LSD, and were walking through the neighborhood in which some of their companions lived. Toler carried a 7.65mm semi-automatic pistol, but neither Baca nor Sanchez had a gun. On the way to the house of a fellow gang member, Baca and Sanchez decided to steal the car stereo from a Geo Tracker they saw parked on the street. While Baca and Sanchez broke into the car and removed the stereo, Toler acted as a lookout.

As Toler, Baca, and Sanchez walked away from the Tracker with the stereo, Christy Martinez, the owner of the vehicle, approached the car with his cousin, Frank Galvan, and his uncle, Phillip Quintana. Martinez, Galvan, and Quintana noticed Toler and his friends and saw that Martinez's car stereo had been stolen. Martinez and Galvan briefly chased Toler and his companions on foot, returning to the Tracker after losing sight of Toler and the others. Martinez, Galvan, and Quintana—all of whom had been drinking during the day—got into Martinez's Tracker and drove through the neighborhood in search of the people who stole Martinez's stereo.

Quintana and Galvan testified that Martinez drove very fast through several streets and alleys in the area trying to find the thieves and recover his stereo. Quintana and Galvan stated that Martinez was very angry that his stereo had been stolen. At no time during this pursuit did Martinez, Galvan, or Quintana possess a gun or other weapon.

Quintana and Galvan testified that as Martinez drove down a street in the neighborhood they spotted two of the individuals they had been chasing, and the individuals ran across the street in front of the Tracker. Galvan testified that after Toler and Baca ran across the street and into a yard on the side of a house, Galvan and Martinez stopped the car and chased the two suspected thieves. Galvan stated that as he and Martinez closed in upon Toler and Baca, Baca climbed over the 6-foot fence¹ located at the rear of the yard and Toler began shooting at them. Galvan testified that Martinez crouched when Toler started shooting but was unable to take cover because he was in an exposed area of the yard. Galvan estimated that he and Martinez were roughly 20-25 feet away from Toler at the time Toler initially opened fire.²

After Toler fired several shots, Martinez rose from his crouched position, said something to Galvan, and ran at Toler. Toler again fired at Martinez, and Martinez screamed that he had been shot. Martinez briefly fought with Toler, punched him, and then fell to the ground. At the same time, Galvan ran toward Toler, grabbing him and punching him after Martinez fell down. Galvan said that because he saw his uncle and police officers run into the yard and thought they would subdue Toler, he climbed over the fence to pursue Baca. Toler fled out of the yard on foot, but the police quickly captured and arrested him.

Dr. Wahe testified that Martinez had been shot 4 to 6 times,³ including shots to the arms, legs, chest and stomach. The coroner stated that one of the gunshots entered Martinez's left arm from behind Martinez and went through his arm into his chest, causing the fatal wound by penetrating one of Martinez's lungs and his heart. Dr. Wahe also said that Martinez's blood alcohol level was 0.1333 percent when he was brought to the hospital for treatment of the gunshot wounds.⁴

The People charged Toler with second degree murder, later amending the charge to first degree murder. At trial, Toler's central contention was that he shot Martinez in self-defense. The defense argued that Toler reasonably feared that Martinez was going to cause him great bodily harm or death, and that shooting Martinez was a reasonable response to Martinez's aggression. The defense also argued that shooting Martinez was a reasonable action for someone who was raised in the abusive conditions in which Toler spent his childhood and who was affiliated with a gang.

Although Toler did not testify at trial, the prosecution introduced into evidence the videotape of an interview he conducted with the police after he shot Martinez. During this interview, Toler stated that he had consumed alcohol and LSD that afternoon and that he and his companions were on the way to their friend's house when they noticed Martinez's Tracker following them. Toler said that he had "no idea" why Martinez and the others were after him and his friends, and that he and his friends were afraid and ran from the Tracker. Toler said that as Martinez and Galvan pursued him and Baca into the yard, Toler was "afraid for his life" and thought he saw Martinez reaching into his coat for what Toler assumed was a gun. According to Toler, because he thought Martinez was in a rival gang and was going to harm or kill him, Toler closed his eyes and started shooting at Martinez and Galvan, intending only to scare the pursuers, not to shoot them.

Consistent with Toler's claim of self-defense, the jury received a jury instruction about a person's right to use deadly force to resist unlawful force. Jury Instruction No. 14 stated that the defendant's theory of the case was self-defense and explained to the jury the principles of self-defense patterned after statutory language, caselaw, and CJI-Crim No. 7:68-7(15) (1983).⁵ Toler objected to the part of the instruction that Toler argued could mislead a jury to believe erroneously that a trespasser must "retreat to the wall" before using physical force in self-defense, which reads as follows:

[I]f the Defendant was not the initial aggressor, and was where he had a right to be, he was not required to retreat to a position of no escape in order to claim the right to employ force in his own defense.

(Emphasis added.) Over the defendant's objection, the trial court included the "right to be" language in the instruction, concluding that it was required by law.

During closing arguments, the prosecution urged the jury to reject the defense's claim of self-defense. The prosecutor argued that Toler was the initial aggressor and therefore not entitled to claim self-defense. In addition, the prosecutor also argued that because Toler was trespassing at the time he shot Martinez, he could not claim self-defense to excuse his conduct:

[Toler] does not get the self-defense claim for yet another reason. He also wasn't in a place where he was supposed to be. He was in somebody else's yard. He doesn't get it for that reason.

The jury convicted Toler of second degree murder.⁶

Toler appealed his conviction, arguing that Jury Instruction No. 14 improperly explained the affirmative defense of self-defense, and the court of appeals reversed Toler's conviction. See People v. Toler, 981 P.2d 1096, 1098 (Colo.App.1998)

. The court of appeals examined section 18-1-704, which "sets forth the circumstances in which a person is justified in using physical force" in defense of himself or another person and the exceptions to that privilege. See id. at 1097. Under the exceptions to the privilege listed in the statute, the court of appeals noted, there is no exception for a person who is not in a place "`where he had a right to be.'" Id. (quoting § 18-1-704).

In addition to its determination that section 18-1-704 does not impose a duty to retreat on a person who is not "where he has a right to be," the court of appeals noted that our precedent does not stand for the proposition that a person must be in a place where he has a right to be before using physical...