People v. Willner , 18 Brief Times Rptr. 1323 ( 1994 )

Justice SCOTT

dissenting:

Because I agree with the court of appeals’ analysis as to the propriety of the trial court’s jury instruction in this case, I respectfully dissent from the majority opinion.

Idrogo requires that “where the record contains any evidence tending to establish the defense of self-defense, the defendant is entitled to have the jury properly instructed with respect to that defense.” Idrogo v. People, 818 P.2d 752, 754 (Colo.1991) (citations omitted). Idrogo also establishes that when there is such evidence adducing a defense of self-defense — however slight — the statutory jury instructions relating to that defense must adequately apprise the jury of the law of self defense from the standpoint of ' the defendant. Id. To satisfy this standard, the trial court is required to “tailor [the self-defense] instructions to the particular circumstances of a given case.... ” Id. (citations omitted).

It is clear that if these principles were faithfully applied to the present case, Willner would be entitled to the non-retreat self-defense jury instruction that was rejected by the trial court. The majority attempts to distinguish Idrogo from the present case, however, on the ground that in Idrogo, the defendant was found to be the non-aggressor or the innocent victim of assault, inasmuch as the evidence in that case established that “the defendant had repeatedly backed away from his attacker and had several times asked for his attacker to ‘leave him alone.’ ” Maj. op. at 24 (emphasis added). Evidently, that the defendant in Idrogo was so persistent in retreating conveys some legal significance that frankly, I am unable to appreciate.¹

Some of the evidence adduced at Willner’s trial tended to suggest that he retreated “by running backwards and firing a warning shot into the air,” and thereafter by “fir[ing] several more shots in order to prevent being run over,” maj. op at 21. The majority concludes, however, that a finder of fact could not reasonably infer from this evidence that Willner was fleeing from the victim, and that his actions conveyed, or “communicated” such a retreat. This conclusion is not warranted in light of the context of this case. Given that, according to Willner’s testimony, he believed the victim was driving straight at him in the truck, it strains common sense to expect Willner to be able to verbally communicate an intention to retreat under such circumstances.

I should also point out that I find the majority’s contention that the trial court’s self-defense instruction “incorporated the essential elements of Willner’s tendered jury instruction' and adequately apprised the jury of the defendant’s reliance on the concept of no-retreat,” maj. op. at 25, to be inconsistent with the standard enunciated in Idrogo. Idrogo requires that in order to assure that the jury is adequately apprised of the non-retreat concept, the jury instruction must be tailored to the particular circumstances so as to take into account the defendant’s perspective.

What concerned us in Idrogo is that without a proper instruction on the applicable law of self defense, a defendant might be deprived of the right to an acquittal on self defense grounds; this is the basis for such a low threshold in Idrogo. Again, that threshold is “any evidence tending to establish the defense of self defense.” Thus it is our function in the present case to determine whether the record contains any measure of evidence that would tend to establish that defense, rather than to expropriate an area reserved for the finder of fact, and dismiss evidence we find lacking in force. Because I believe the majority is unconvincing in its attempt to distinguish Idrogo from the present ease, and that it also improperly weighs and repudiates the credibility of Willner’s evidence implying retreat, I respectfully dissent. Because I would affirm the court of appeals and remand for a new trial on this issue, I do not address the evidentiary issue.

1 . Still emphasizing this curious "extent of retreat" theory, the majority points out that there was only one statement "supporting Willner’s claim that he had appropriated a victim status.” Maj. op. at 25 n. 17.