Arapahoe County District Court No. 08CR1289 Honorable Elizabeth A. Weishaupl, Judge Honorable Kurt A. Horton, Judge
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 1 Defendant, Edward Kevin DeGreat, appeals the judgment of conviction entered on jury verdicts finding him guilty of aggravated robbery, second degree assault - reckless, and a crime of violence count. DeGreat contends that the trial court erred in (1) rejecting his tendered jury instruction on self-defense as an affirmative defense to aggravated robbery; (2) denying his Batson challenge; (3) failing to sua sponte strike testimony that he rejected a plea deal; and (4) denying his motion to suppress telephone calls made from the jail. Because we conclude that DeGreat was entitled to a self-defense instruction in connection with the aggravated robbery charge, we reverse the judgment of conviction for aggravated robbery and the related crime of violence count. The judgment is otherwise affirmed.
I. Procedural Background
¶ 2 DeGreat was charged with attempted second degree murder, first degree assault, aggravated robbery, and theft. The charges arose from an altercation with a taxi cab driver over the fare, which culminated in DeGreat stabbing and wounding the driver. DeGreat did not deny stabbing the driver or failing to pay the fare, instead defending on a theory of self-defense. The jury acquitted DeGreat of attempted second degree murder, first degree assault, and theft. But the jury found DeGreat guilty of aggravated robbery, the lesser included offense of second degree assault - reckless, and a crime of violence count.
II. Affirmative Defense Instructions
¶ 3 DeGreat contends that, given the unique facts presented, he was entitled to a jury instruction on self-defense as an affirmative defense to aggravated robbery. We agree.
A. The Altercation
¶ 4 At trial, it was undisputed that DeGreat and two neighbors shared a cab ride home on the night of the altercation. When they reached their destination, the two neighbors left, leaving DeGreat in the front seat. What transpired next was contested.
¶ 5 According to DeGreat, when he attempted to pay the cab fare, he discovered he was a few dollars short. DeGreat testified that he told the cab driver he would get the full amount from his apartment, and gave the driver his identification card (ID) as collateral. DeGreat testified that the driver put the ID in his pocket, made a phone call, locked DeGreat in the cab, and told DeGreat that he had called the police.
¶ 6 DeGreat testified that he jumped into the back seat to try and exit through the back doors. He further testified that the cab driver then got out of the car and, after DeGreat pleaded with him, unlocked the doors. DeGreat stated that when he got out of the cab, he ignored the driver's order to stay put and started towards his apartment to retrieve the full fare. When DeGreat turned to leave, the cab driver grabbed him and threw him onto the car. DeGreat testified that "the next thing [he knew, they were] . . . . fist fighting."
¶ 7 As they fought, DeGreat testified, he felt a burning sensation on his chin, saw blood on his shirt, and asked the cab driver if he had stabbed him. DeGreat testified that the driver then "put his hand behind his leg . . . [and DeGreat] saw something gleam in the [cab driver's] hand." Believing it was a weapon, DeGreat took a knife out of his pocket. When the cab driver approached, DeGreat cut him. The cab driver then fled.
¶ 8 The cab driver, in contrast, testified that DeGreat refused to get out of the cab. When DeGreat inexplicably crawled into the back seat, the driver became afraid and exited the cab. DeGreat got out of the cab and the driver described feeling "something to [his] neck, " and afterward realized he was bleeding. The driver testified that he fled and DeGreat chased him. The driver testified that he ran to a convenience store where he located police.
¶ 9 DeGreat defended on a theory of self-defense. The jury was instructed that self-defense was an affirmative defense to the attempted murder and first degree assault charges. DeGreat also requested a self-defense instruction in connection with the aggravated robbery charge. DeGreat asserted that self-defense applied to aggravated robbery because the "taking" was part of a continuous transaction in which he defended himself from the cab driver's aggression. The trial court denied the tendered instruction. The jury acquitted DeGreat of attempted murder, first degree assault, and theft, but convicted him of reckless assault and aggravated robbery.
B. Preservation and Standard of Review
¶ 10 We first reject the People's contention that DeGreat did not preserve this claim because he did not specifically object during the jury instruction conference. Tendering the desired instruction sufficiently preserved this claim. See People v. Ridgeway, 2013 COA 17, ¶ 10 (tendering an alternative jury instruction sufficiently preserved a contention that the given jury instructions were inadequate); accord People v. Pahl, 169 P.3d 169, 183 (Colo.App. 2006). Therefore, we review the jury instructions de novo to determine if they accurately informed the jury of the governing law. People v. Oram, 217 P.3d 883, 893 (Colo.App. 2009).
¶ 11 Colorado recognizes a limited statutory right to use physical force in self-defense. § 18-1-704, C.R.S. 2014. In particular, a person may use physical force to defend himself from what "he reasonably believes to be the use or imminent use of unlawful physical force" by another person. Id. The affirmative defense of self-defense extends to any crime except those requiring a mental state of recklessness, extreme indifference, or negligence. § 18-1-704(1), -704(4); People v. Pickering, 276 P.3d 553, 556 (Colo. 2011) ("With respect to crimes requiring recklessness, criminal negligence, or extreme indifference, . . . self-defense is not an affirmative defense, but rather an element-negating traverse."). Barring ambiguity, we construe the self-defense statute as written. See State v. Nieto, 993 P.2d 493, 506 (Colo. 2000).
¶ 12 Robbery and aggravated robbery require a defendant to act knowingly; that is, they are general intent crimes. See § 18-1-501(6), C.R.S. 2014 (crimes requiring a knowing mental state are general intent crimes). The legislature did not exclude robbery, or any general intent crime, from the crimes for which self-defense is available as an affirmative defense. See id. Nor did the legislature eliminate self-defense for a particular class of crimes, such as crimes against property. See § 18-1-704. Had the legislature intended to exclude robbery from those crimes for which self-defense is available as an affirmative defense, it would have plainly done so. See Frazier v. People, 90 P.3d 807, 811-12 (Colo. 2004); City of Loveland Police Dep't v. Indus. Claim Appeals Office, 141 P.3d 943, 954-55 (Colo.App. 2006); cf. People v. Graves, 479 N.E.2d 10, 12 (Ill.App.Ct. 1985) (because the state statute expressly excludes aggravated robbery from those crimes for which self-defense is applicable, defendant was not entitled to a self-defense instruction).
¶ 13 The Colorado Supreme Court agrees that the affirmative defense of self-defense applies to general intent crimes. See Pickering, 276 P.3d at 555 (self-defense is an affirmative defense to crimes requiring "intent, knowledge, or willfulness"). And divisions of this court have applied the self-defense statute to general intent crimes - irrespective of the type of crime. See People v. Taylor, 230 P.3d 1227, 1230 (Colo.App. 2009) (self-defense instruction should have ...