People v. Martinez

522 P.3d 725

2022 COA 111

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Justin Brendan MARTINEZ, Defendant-Appellant.

Court of Appeals No. 19CA1481

Colorado Court of Appeals, Division VI.

Announced September 29, 2022

Philip J. Weiser, Attorney General, Paul E. Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Karen Mahlman Gerash, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE HARRIS

¶ 1 A jury found defendant, Justin Brendan Martinez, guilty of reckless manslaughter. On appeal, Martinez contends that the trial court erred in instructing the jury on various aspects of his self-defense claims.

¶ 2 In rejecting his contentions, we conclude that, like ordinary self-defense, the "force-against-intruders" defense (colloquially known as the "make-my-day" defense) is not an affirmative defense to a crime involving reckless conduct. We therefore affirm the judgment of conviction.

I. Background

¶ 3 On April 28, 2018, at about two a.m., Martinez shot and killed his best friend. The People charged him with second degree murder.

¶ 4 Martinez claimed to have acted in self-defense. Before trial, he moved to dismiss the charge, arguing that he was immune from prosecution under the force-against-intruders statute, see § 18-1-704.5, C.R.S. 2021. The trial court disagreed, and the case proceeded to trial.

¶ 5 The prosecution presented eyewitness accounts from two people: Armando Acosta, a mutual friend of Martinez and the victim; and Martinez, who did not testify but whose police interviews were shown to the jury.

¶ 6 According to Acosta, after a night of drinking, Martinez, the victim, and Acosta arrived back at Martinez's house. Martinez wanted to drive to another bar, but the victim thought Martinez was too drunk to drive. When Martinez got behind the wheel, the victim reached through the window, punched him in the face, and wrestled him out of the car.

¶ 7 Martinez stumbled into the house, followed first by the victim, and then, a minute later, by Acosta. When Acosta walked in, he saw Martinez lying on the bedroom floor and the victim kicking him. Acosta told them to "cool their shit," and the victim started to walk out of the room. Martinez grabbed a gun from the corner, turned, and fired a shot that hit the back of the victim's knee. Acosta testified that at the time Martinez grabbed the gun, the assault was over and, when he fired the shot, the victim was "already out the door" of the bedroom.

¶ 8 Acosta recalled that Martinez fired the gun toward the floor, and Acosta was surprised that the shot hit the victim — he characterized the incident as a "freak accident." But he was also surprised that Martinez "even went to get a gun" in the first place.

¶ 9 Martinez's account was somewhat different. Initially, he told police that, as the victim pursued him into the house, he grabbed a gun from behind the front door and the gun accidentally fired by itself. Later, though, he said that after the victim assaulted him outside, he ran straight into his bedroom, grabbed his gun, and, as he turned around, he "gave a warning shot" toward the ground, accidentally hitting the victim in the leg. Throughout his interviews with police, Martinez emphasized that his memory of the incident was poor and encouraged officers to speak to Acosta, who "was there for everything."

¶ 10 It was undisputed that when police arrived, they found the victim lying in the hallway outside the bedroom. Within half an hour, the victim had bled to death from the gunshot wound.

¶ 11 Martinez's specific theory of defense was that he had grabbed the gun in self-defense and then, with no intent to hit the victim, accidentally shot him in the leg. The jury rejected the charge of second degree murder and convicted Martinez of reckless manslaughter.

II. Self-Defense Jury Instructions

¶ 12 The trial court agreed to instruct the jury on self-defense. Accordingly, it gave a series of instructions concerning Martinez's right to use deadly force to defend himself.

¶ 13 On appeal, Martinez contends that the court erred by (1) declining to instruct the jury that the force-against-intruders defense is an affirmative defense with respect to reckless manslaughter; (2) failing to sua sponte include an instruction on a defendant's right to use non-deadly physical force; and (3) instructing the jury that Martinez's intoxication was irrelevant to his self-defense claim.

¶ 14 "Trial courts have a duty to instruct the jury on all matters of law applicable to the case." Roberts v. People , 2017 CO 76, ¶ 18, 399 P.3d 702. We review jury instructions de novo to determine whether, as a whole, they accurately informed the jury of the governing law. See People v. Neckel , 2019 COA 69, ¶ 26, 487 P.3d 1036. And we review the court's decision to give or not to give a particular instruction for an abuse of discretion. See People v. Maloy , 2020 COA 71, ¶ 54, 465 P.3d 146.

A. Force-Against-Intruders Instruction

¶ 15 In Colorado, a person has a right to use deadly force to defend himself when he reasonably believes that he is in imminent danger of being killed or sustaining serious bodily injury and reasonably believes that a lesser degree of force is inadequate. See § 18-1-704(1) - (2), C.R.S. 2021.

¶ 16 The force-against-intruders statute expands the right to self-defense in cases involving an intruder's knowing unlawful entry into a home. Under that statute, as long as the occupant of the home has a reasonable belief that the intruder has committed or intends to commit a crime in addition to the unlawful entry and also reasonably believes that the intruder might use any physical force, no matter how slight, against any person, the occupant "is justified in using any degree of physical force, including deadly physical force," against the intruder. § 18-1-704.5(2).

¶ 17 Self-defense can be either an affirmative defense or a traverse. An affirmative defense admits the defendant's commission of the charged offense but seeks to justify or excuse the conduct. Pearson v. People , 2022 CO 4, ¶ 18, 502 P.3d 1003. A traverse, on the other hand, refutes the possibility that the defendant committed the charged offense by negating one or more elements of the offense. Roberts , ¶ 21.

¶ 18 Whether self-defense is an affirmative defense or a traverse determines the prosecution's burden of proof. See People v. Pickering , 276 P.3d 553, 555 (Colo. 2011). When the evidence raises the issue of an affirmative defense, the affirmative defense becomes an additional element, and the trial court must instruct the jury that the prosecution bears the burden to prove beyond a reasonable doubt that the defense does not apply. Id. ; see also People v. Huckleberry , 768 P.2d 1235, 1239 (Colo. 1989) (explaining why the prosecution bears the burden to disprove an affirmative defense). In contrast, when the evidence raises the issue of an elemental traverse, the jury may consider evidence that the defendant acted in self-defense in determining whether the prosecution proved each element of the offense beyond a reasonable doubt, "but the defendant is not entitled to an affirmative defense instruction." Pickering , 276 P.3d at 555.

¶ 19 In Pickering , the supreme court concluded that self-defense is an affirmative defense with respect to crimes requiring intent or knowledge, such as second degree murder, but it is a traverse with respect to crimes involving recklessness, including reckless manslaughter. Id. at 555-56. While a person can act knowingly and in self-defense, the court reasoned, "it is impossible for a person to act both recklessly and in self-defense, because self-defense requires one to act justifiably ... while recklessness requires one to act with conscious disregard of an unjustifiable risk." Id. at 556.

¶ 20 Consistent with these principles, the trial court instructed the jury that self-defense and the force-against-intruders defense operated as affirmative defenses with respect to the second degree murder charge, and therefore the prosecution had the burden to disprove those defenses beyond a reasonable doubt. With respect to the reckless manslaughter charge, however, the court instructed that the prosecution had to prove all elements of the offense beyond a reasonable doubt, but it did not have an additional burden to disprove the defenses.¹ Still, the instruction explained that "a person does not act recklessly ... if his conduct is legally justified as set forth" in the self-defense and force-against-intruder instructions.

¶ 21 Martinez acknowledges that self-defense is not an affirmative defense to reckless manslaughter. But he says that the force-against-intruders defense, unlike ordinary self-defense, is not inconsistent with reckless conduct and therefore is an affirmative defense to the charge.

¶ 22 As Martinez observes, the self-defense statute authorizes only proportionate force against an assailant. In other words, a person's use of force is justified only if the person uses no more force than is reasonably necessary to repel the assailant. See § 18-1-704(1) - (2). The proportionate force requirement makes self-defense inconsistent with reckless conduct, Martinez argues, because it prohibits a person from creating or disregarding an unreasonable and unjustifiable risk of harm to others, while recklessness specifically requires that a person consciously disregard a "substantial and unjustifiable risk" of harm. § 18-1-501(8), C.R.S. 2021.

¶ 23 The force-against-intruders statute, however, does not include a proportionate force requirement: once the statutory criteria are satisfied, the occupant of a home can use any amount of force against the intruder. See § 18-1-704.5(2). According to Martinez, this statutory difference means that an occupant could "choose to employ an unnecessary and grossly disproportionate degree of force, thereby consciously disregarding a substantial and...