Summary
In Hare, the court held that the trial court did not err in giving a self-defense jury instruction tracking the self-defense statute, § 18-1-704, 8B C.R.S. (1986), and in refusing the defendant's tendered jury instruction that required the jury to consider the "apparent necessity" for exercising self-defense.
Summary of this case from HARE v. PEOPLEOpinion
No. 87CA1375
Decided June 22, 1989. Rehearing Denied July 27, 1989. Certiorari Granted November 27, 1989 (89SC479).
Appeal from the District Court of Rio Grande County Honorable Robert W. Ogburn, Judge
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Hope P. McGowan, Assistant Attorney General, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Kathleen A. Lord, Deputy State Public Defender, for Defendant-Appellant.
The defendant, Amber Hare, appeals the judgment of conviction entered on a jury verdict finding her guilty of manslaughter. She also appeals the sentence imposed pursuant to § 16-11-309, C.R.S. (1986 Repl. Vol. 8A). We affirm the judgment and vacate the sentence.
The defendant testified that she and the victim had lived together for several months before the shooting. According to her testimony, on the evening of the shooting, the victim repeatedly threatened the defendant by placing a gun between her eyes and pulling the trigger. The defendant, fearing for her life, struggled with him for the gun which fired and dropped to the floor. The victim then went to the next room, and the defendant heard him fall to the floor. A few hours later, she realized that he was dead. She called a friend, and they dumped the victim's body in a landfill.
I.
The defendant argues that the trial court erred in refusing her tendered "apparent necessity" instruction. We disagree.
The defendant correctly states that Young v. People, 47 Colo. 352, 107 P. 274 (1910) requires the giving of a separate instruction on apparent necessity when the evidence so warrants and when the trial court's self-defense instruction does not adequately inform the jury of a person's right to act on the appearance of being killed or receiving great bodily harm. See also People v. Tapia, 183 Colo. 141, 515 P.2d 453 (1973).
Young and Tapia were decided prior to the codification of the criminal law, and the instructions given tracked the existing statutes. See Colo. Sess. Laws 1861, §§ 28, 29, and 30 at 294. Those statutes, and the instructions premised on them, were interpreted to require further instruction on apparent necessity because they did not make it clear that the appearance of imminent danger could justify acting in self-defense.
However, with the codification, § 18-1-704, C.R.S.(1986 Repl. Vol. 8B) explicitly provided that reasonable belief of imminent danger justifies self-defense. Accordingly, instruction in accordance with the statute is sufficient to convey the concept of apparent necessity.
This conclusion is buttressed by the General Assembly's rejection of the common law in criminal matters. See § 18-1-104, C.R.S. (1986 Repl. Vol. 8B). Although we are not precluded from reliance upon the common law to aid in construing the criminal code, People v. Berry, 703 P.2d 613 (Colo.App. 1985), when statutory meaning is clear, we must give effect to that meaning. Heagney v. Schneider, 677 P.2d 446 (Colo.App. 1984).
The trial court here instructed the jury:
"It is an affirmative defense to the crime . . . of Manslaughter . . . that the defendant used deadly physical force because she reasonably believed a lesser degree of force was inadequate, and had reasonable grounds to believe, and did believe that she was in imminent danger of being killed or of receiving great bodily injury."
This instruction adequately informed the jury that the defendant may act on the appearance of imminent danger. See People v. Beckett, 782 P.2d 843 (Colo. 1989); People v. Berry, supra. But see People v. Jones , 675 P.2d 9 (Colo. 1984); People v. Duran, 40 Colo. App. 302, 577 P.2d 307 (1978).
II.
The defendant also contends that the trial court erred by refusing to instruct the jury on her theory of the case. We disagree.
Although a defendant is entitled to an instruction on her theory of the case, People v. Moya, 182 Colo. 290, 512 P.2d 1155 (1973), here, the defendant's tendered instruction amounted to nothing more than a restatement of the self-defense instruction actually given. Thus, the defendant's instruction would have added little to the jury's understanding of the case. See People v. Young, 710 P.2d 1140 (Colo.App. 1985). The trial court's refusal of defendant's instruction was not error.
III.
We agree with the defendant that the trial court erred in sentencing her according to § 16-11-309, C.R.S. (1986 Repl. Vol. 8A). That statute requires enhanced sentencing for any person convicted of a "crime of violence." By its own terms, the statute's effect is limited to certain enumerated offenses, not including manslaughter. Hence, since the defendant was convicted of manslaughter, using § 16-11-309 as a basis for sentencing her outside the presumptive range for such offense was error.
The judgment of conviction of the offense of manslaughter is affirmed. The sentence imposed pursuant to § 16-11-309 is vacated, and the cause is remanded for resentencing.
JUDGE CRISWELL concurs.
JUDGE DUBOFSKY dissents.