People v. Willner, 93SC248

• Decision Date: 18 July 1994
• Docket Number: No. 93SC248,93SC248
• Citation: 879 P.2d 19
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Robert Farrell WILLNER, Respondent.
• Court: Colorado Supreme Court

Page 19

879 P.2d 19

The PEOPLE of the State of Colorado, Petitioner, v. Robert Farrell WILLNER, Respondent.

No. 93SC248.

Supreme Court of Colorado En Banc.

July 18, 1994.

Rehearing Denied Aug. 15, 1994.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., John J. Krause, Asst. Atty. Gen., Criminal Enforcement Section, Denver, for petitioner.

Gerash, Robinson & Miranda, P.C., Scott H. Robinson, Denver, for respondent.

Justice VOLLACK delivered the Opinion of the Court.

Petitioner, Robert Farrell Willner (Willner), was convicted by a jury of the offense of first degree murder, in violation of section 18-3-102, 8B C.R.S. (1986), and crime of violence, in violation of section 16-11-309, 8A C.R.S. (1986). At trial, Willner tendered a jury instruction describing the limits of a person's duty to retreat pursuant to our decision in Idrogo v. People, 818 P.2d 752 (Colo.1991). The trial court refused to give the instruction to the jury, and the court of appeals, in an unpublished opinion (People v. Willner, No. 91CA1447 (Colo.App. Feb. 11, 1993)), reversed the trial court's decision and remanded the case for a new trial. In addition, the trial court admitted evidence of two prior similar transactions under Colorado Rule of Evidence 404(b). The court of appeals determined that this evidence was improperly admitted. Id.

We hold that the trial court's instruction accurately stated Colorado law on self defense and the evidence supported that instruction. We further conclude that the evidence that Willner had engaged in other, similar transactions was properly admitted. We therefore reverse the judgment of the court of appeals and remand the case to that court with directions to reinstate the trial court's judgment of conviction.

I.

On December 10, 1990, at approximately 2:00 a.m., Steven MacDonald (MacDonald) and the victim, both employed by Credit Casualty Recovery Company, attempted to repossess Willner's 1983 Chevy Crew Cab pickup truck which was parked in Willner's driveway. ¹ The victim gained entry to the pickup truck, started it without the ignition key, and backed it from Willner's driveway, while MacDonald watched him from his tow vehicle parked several houses away.

At trial, MacDonald testified that shortly thereafter he heard two loud "pops" and, alarmed, immediately drove his vehicle towards the pickup truck. ² As he pulled close to the pickup, MacDonald saw a Caucasian man--later identified as Willner--clad only in green underwear and standing about three to five feet in front of the pickup truck with an automatic pistol in his hand. ³ Willner's arm was extended and the pistol was pointed at the truck. MacDonald further saw that the victim was slumped over in the driver's seat of the pickup truck.

Willner fled the scene and the police arrived shortly after the incident and pronounced the victim dead. Several hours later, Willner went down to the police station to turn himself in and was arrested. Willner was charged with first degree murder ⁴ and a crime of violence. ⁵

At trial, Willner testified that he left his house with his semiautomatic weapon in his hand with the belief that his pickup truck was being stolen and that, during this short time span, no thought had entered his mind about repossession. Willner admitted that he had shot and killed the victim, but claimed that the victim drove the truck toward him immediately before the shooting and he responded by running backwards and firing a warning shot into the air which hit the top of the truck. ⁶ Willner additionally testified that he fired several more shots in order to prevent being run over. Willner stated that he fired directly at the driver only when he saw a flash or glint from inside the vehicle. He therefore maintains that he was acting in self defense.

The testimony of several witnesses contradicted Willner's version of the incident. According to the testimony of the responding police officer and a neighbor, the pickup's "back up" lights were still on, indicating that the vehicle was in reverse. The prosecution relied on this evidence to argue that the truck did not accelerate forward and proceed in Willner's direction, as Willner claimed. Because the gunshots incapacitated the victim, it would have been impossible for him to shift the truck back into reverse after the shooting. ⁷ Further, a few days after the shooting, a police examination of the pickup truck revealed that the pickup truck's transmission fluid smelled burnt and, because the transmission kept slipping out of gear, the pickup's maximum speed was only a few miles per hour.

At the conclusion of the jury trial, Willner was convicted of first degree murder and sentenced to life.

On appeal, the court of appeals reversed, finding that the trial court had incorrectly refused to tender a "non-retreat" self-defense instruction, and that the court erred by admitting evidence of certain prior shooting incidents by Willner.

II.

We begin our consideration of this case with an examination of the self-defense statute. Section 18-1-704, 8B C.R.S. (1986), defines the statutory affirmative defense of self defense. The statute provides as follows:

(1) Except as provided in subsections (2) and (3) of this section, 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.

(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:

(a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury[.]

....

(3) Notwithstanding the provisions of subsection (1) of this section, 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 other person; or

(b) He is the initial aggressor, except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so[.]

Section 18-1-704 takes into account the reasonable belief and actual belief of an individual who has exercised physical force in self defense. The innocent victim of an assault does not have to retreat before defending himself. § 18-1-704(2)(a); Idrogo v. People, 818 P.2d 752 (Colo.1991). Sections 18-1-704(3)(a) and (b), 8B C.R.S. (1986), govern the use of self defense by a provoker or initial aggressor. Section 18-1-704(3)(b) expressly requires that an initial aggressor retreat before physical force is justified. In Young v. People, 47 Colo. 352, 354, 107 P. 274, 275 (1910), we reviewed the trial court's instructions which stated in part:

"The right to self-defense is only given in emergencies ⁸ to enable persons who are attacked and to whom it may reasonably appear, that their lives or bodies are in danger of great bodily injury, to defend themselves; that this right is based upon what reasonable persons, having due regard for human life, would do under similar circumstances....

"The jury are instructed that one who seeks and brings about a difficulty cannot shield himself under the plea of self-defense from the consequences of assaulting his adversary, however imminent the danger he brings upon himself. Self-defense is not available where defendant is not reasonably freed [sic] from fault, nor unless there is evidence tending to show that he either was or appeared to be menaced at the time by some overt act on the part of the assailant of a character to create reasonable apprehension of danger of his life or of great bodily harm."

A.

We now turn our attention to the People's argument that the self-defense instruction given by the trial court was proper. The People assert that, because Robert Willner was the initial aggressor who did not effectively communicate his withdrawal, Idrogo v. People, 818 P.2d 752 (Colo.1991), does not apply to this case and therefore the court of appeals erred in its determination that Willner should have been entitled to a "retreat to the wall" instruction. ⁹ The defense contends that the trial court improperly instructed the jury on self-defense by including the "provocation" and "initial aggressor" concepts, claiming that the instruction given by the trial court was not supported by the evidence. The defense additionally maintains that, since the evidence raised a jury question as to who provoked the incident or was the initial aggressor, and a factual issue was raised as to whether, if Robert Willner was the "initial aggressor," he withdrew and effectively communicated that withdrawal, the trial court erred in not instructing the jury on the doctrine of "no-retreat." ¹⁰

The defense tendered three alternative instructions on self defense. The defense instruction 1 followed section 18-1-704(2)(a), 8B C.R.S. (1986). The defense instruction 2 expanded on section 18-1-704(2)(a) by adding that it was the prosecution's burden to disprove the affirmative defense beyond a reasonable doubt. Defendant's third rejected instruction included the "retreat to the wall" doctrine, and read in part as follows:

When a Defendant is where he has a right to be and is assaulted by another in a way that the Defendant honestly and in good faith believes, and the circumstances being such as would induce a like belief in a reasonable man, that he is about to receive at the hands of his assailant great bodily harm, or to lose his life, the Defendant, if he did not provoke the assault, is not obliged to retreat or flee to...