Nor have other Circuits. The Second and Fifth Circuits, for example, have stated that nothing in Mathews limits that holding to entrapment alone. United States v. Goldson, 954 F.2d 51, 55 (2d Cir. 1992); see also, United States v. Browner, 889 F.2d 549, 555 (5th Cir. 1989) (holding that defendant was entitled to a jury instruction that she did not intend to stab her husband, and, alternatively, she stabbed him in self defense); Arcoren v. United States, 929 F.2d 1235, 1245 (8th Cir. 1991) (holding that defendant was entitled to a jury instruction he reasonably believed the victim was at least sixteen years old, and, in the alternative, he did not have sexual contact with her). We distinguish that in Abeyta, Justice White, sitting with the panel, determined the error reflected the "court's findings . . . went over the line.
The theory of defendant's case in constructional concept was stated in People v. Sears, 2 Cal.3d 180, 84 Cal.Rptr. 711, 717, 465 P.2d 847, 853 (1970) as "a defendant, upon proper request therefor, has a right to an instruction that directs attention to evidence from a consideration of which a reasonable doubt of his guilt could be engendered." See United States v. Goldson, 954 F.2d 51, 55 (2d Cir. 1992) and Lybarger v. People, 807 P.2d 570 (Colo. 1991). See also People v. Mickey, 64 Cal.3d 612, 286 Cal.Rptr. 801, 818 P.2d 84 (1991).
Rather, it demands that defendants be allowed "to present wholly inconsistent defenses." United States v. Goldson , 954 F.2d 51, 55–56 (2d Cir. 1992). "When specific guarantees of the Bill of Rights are involved," courts "take[ ] special care to assure that prosecutorial conduct in no way impermissibly infringes them."
Where a federal agent has failed to identify herself prior to the assault, and her identity or authority was not otherwise apparent, a self-defense instruction will most likely be necessary. See United States v. Goldson, 954 F.2d 51, 53-56 (2d Cir. 1992); United States v. Perkins, 488 F.2d 652, 653-55 (1st Cir. 1973), cert. denied, 417 U.S. 913, 94 S.Ct. 2612, 41 L.Ed.2d 217 (1974). Similarly, an instruction will be necessary where the defendant takes the stand and contradicts claims that officers identified themselves.
Defendant posits that the "apparent exculpatory value" on the video recording before its destruction was that it recorded a "scuffle." Consequently, the potential exculpatory value could arguably be evidence: of self defense, United States v. Feola, 420 U.S. 671, 680 (1975); that the identity or authority of the federal officer was not apparent, United States v. Goldson, 954 F.2d 51, 54-56 (2nd Cir. 1992); that the defendant's use of force was not excessive, United States v. Loman, 551 F.2d 164, 167 (7th Cir. 1977); or that there was a lack of probable cause, United States v. Moore, 483 F.2d 1361, 1364-65 (9th Cir. 1973). The video's contents regarding the events of February 7, 2007 at 10:28 a.m. could have been material to Defendant herein establishing anyone of the above-listed defenses.
For only then can the jury give fair consideration to whether the assault was an intentional act wilfully done without legal excuse. 464 F.2d at 163 (citations omitted); See also U.S. v. Goldson, 954 F.2d 51 (2d Cir. 1992). In other words, if the action taken by a defendant could be justified but for the fact that the victim was a federal agent, the defendant must be permitted to present evidence of such a defense.
In this respect, Colorado law is consistent with federal practice, see, e.g., Fed.R.Crim.P. 31(c)(1) ("A defendant may be found guilty of any of the following . . . an offense necessarily included in the offense charged. . . ."); Fed.R.Civ.P. 8(d)(3) ("A party may state as many separate claims or defenses as it has, regardless of consistency."), and the majority of federal precedent, see, e.g., Mathews, 485 U.S. at 63, 108 S.Ct. 883; Stevenson v. United States, 162 U.S. 313, 315, 16 S.Ct. 839, 40 L.Ed. 980 (1896); United States v. Trujillo, 390 F.3d 1267, 1275 (10th Cir. 2004); United States v. Coldson, 954 F.2d 51, 55 (2d Cir. 1992); Arcoren v. United States, 929 F.2d 1235, 1245 (8th Cir. 1991); United States v. Browner, 889 F.2d 549, 555 (5th Cir. 1989). Moreover, the prevailing policy concerns which helped shape our opinion in Garcia are absent in the present case.
See Mathews v. United States, 485 U.S. 58, 62 * * * (1988) [entrapment]. * * * United States v. Goldson, 954 F.2d 51, 55 (2d Cir.1991) ; United States v. Browner, 889 F.2d 549, 555 (5th Cir.1989) [self-defense]. {¶ 52} "Finally, there is no reason to require the defense to admit to the elements of the crime in order to receive a self-defense instruction.
Although Mathews concerned whether a defendant was entitled to an entrapment instruction while also contesting the prosecution's case, other courts have found Mathews applicable when a self-defense instruction is requested. United States v. Goldson, 954 F.2d 51, 55 (2d Cir. 1991); United States v. Browner, 889 F.2d 549, 555 (5th Cir. 1989). {¶23} Finally, there is no reason to require the defense to admit to the elements of the crime in order to receive a self-defense instruction.
Other federal courts likewise have held that the fact that a lesser included offense "instruction was inconsistent with [the defendant's] testimony was not a correct reason for the [trial] court to have refused to give the instruction." United States v. Goldson, 954 F.2d 51, 55-56 (2d Cir. 1992). The Fifth Circuit has held a defendant entitled to instructions on any "lesser included offense whenever there is evidence sufficient for a reasonable jury to find in her favor, even when the defense and lesser included offense are inconsistent with each other."