People v. Weiss , 1985 Colo. App. LEXIS 1385 ( 1985 )

KELLY, Judge,

specially concurring.

I concur in the majority only because I feel obligated to do so by the holding in People v. Moya, 182 Colo. 290, 512 P.2d 1155 (1973), which specifically requires that the trial court give a tendered theory of defense instruction even though it consists of no more than an explanation of defendant’s actions, and is based on testimony in the record.

In my view, Moya conflicts directly with a long line of cases which hold that argumentative instructions should be refused where the defense theory is embodied in other instructions given by the court. See People v. McKenna, 196 Colo. 367, 585 P.2d 275 (1978); People v. Holmes, 191 Colo. 477, 553 P.2d 786 (1976); People v. Mackey, 185 Colo. 24, 521 P.2d 910 (1974); Winters v. People, 174 Colo. 91, 482 P.2d 385 (1971); Arevalos v. People, 162 Colo. 408, 426 P.2d 558 (1967); People v. Wilson, 678 P.2d 1024 (CoIo.App.1983); People v. Simien, 671 P.2d 1021 (Colo.App.1983); People v. Martinez, 652 P.2d 174 (Colo.App.1981); People v. Akins, 36 Colo.App. 337, 541 P.2d 338 (1975).

While it is a temptation to interpret these later cases as having overruled Moya sub silencio, People v. Dillon, 655 P.2d 841 (Colo.1982), expressly applying Moya, militates against any such conclusion. Were I free to do so, I would adopt a contrary rule. It seems to me that where, as here, a defendant has pleaded not guilty, and has offered testimonial as well as tangible evidence to refute the prosecution’s version of the facts, the outcome of the case boils down solely to a credibility determination by the trier of fact. Allowing the defendant to reargue his version of the facts in the guise of a theory of defense instruction gives him the advantage of repetition, and unfairly augments his explanation since the instruction is given to the jury by the judge. In my opinion, factual arguments such as this should be properly confined to closing arguments rather than incorporated into jury instructions. I would limit theory of defense instructions to legally recognized defenses, and deny tendered instructions which merely reargue facts.