and County of Denver District Court No. 14CR1513 Honorable
Edward D. Bronfin, Judge
Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Haddon, Morgan & Foreman, P.C., Norman R. Mueller, Rachel
A. Bellis, Denver, Colorado, for Defendant-Appellant
1 When there is evidence in a murder case indicating that the
defendant shot the victim either accidentally or in
self-defense, is the trial court required to grant his
request for a self-defense instruction? Under the facts of
this case, we answer "yes" to this question. In our
analysis, we harmonize potentially conflicting case law from
our supreme court in People v. Naranjo, 2017 CO 87;
Brown v. People, 239 P.3d 764 (Colo. 2010);
People v. Garcia, 826 P.2d 1259 (Colo. 1992);
Idrogo v. People, 818 P.2d 752 (Colo. 1991);
Vigil v. People, 143 Colo. 328, 353 P.2d 82 (1960);
Huffman v. People, 96 Colo. 80, 39 P.2d 788 (1934);
and Jabich v. People, 58 Colo. 175, 143 P. 1092
2 Defendant, Timothy Wakefield, appeals his judgment of
conviction for second degree murder. We reverse and remand
for a new trial.
3 Defendant was convicted based on an altercation during
which he was holding a gun that discharged, causing the
4 Defendant and the victim were longtime friends, and the
victim was visiting defendant from out of state. But in the
hours leading up to the shooting, the victim and defendant
argued and were involved in a series of increasingly violent
physical fights, during one of which defendant lost
5 There was no dispute that defendant was holding a shotgun
when the victim was killed. Just after the shooting,
defendant indicated to two people that he had acted in
self-defense. But defendant testified at trial that when the
victim stepped forward and reached for the gun, defendant
pulled the gun up and away from the victim's reach, and
the gun "went off." According to defendant, he
thought that the victim "was going to take the gun and
hurt [him] with it." Defendant maintained that he did
not intend to shoot or hurt the victim.
6 Defendant was tried for first degree murder, but the jury
instead convicted him of the lesser included offense of
second degree murder.
7 Defendant first argues that the trial court erred by
declining to give his tendered jury instruction on
self-defense. Because we agree, we reverse the conviction and
remand for a new trial.
8 We review de novo whether there is sufficient evidence to
support giving a defendant's requested self-defense jury
instruction. People v. Newell, 2017 COA 27, ¶
19. "When considering whether a defendant is entitled to
[a] requested instruction, we consider the evidence in the
light most favorable to the defendant." Cassels v.
People, 92 P.3d 951, 955 (Colo. 2004). The court's
rejection of a defendant's tendered jury instruction is
reviewed for constitutional harmless error. See Neder v.
United States, 527 U.S. 1, 8-15 (1999); Griego v.
People, 19 P.3d 1, 8 (Colo. 2001).
9 Generally speaking, there are two types of defenses to a
criminal charge. People v. Pickering, 276 P.3d 553,
555 (Colo. 2011). First, there are affirmative defenses,
which seek to justify, excuse, or mitigate the commission of
the act. Id. Second, there are traverses, or
element-negating defenses, which "effectively refute the
possibility that the defendant committed the charged act by
negating an element of the act." Id.
10 Self-defense can be either an affirmative defense or an
element-negating defense depending on the grade of homicide
charged. When the charged offense requires intent, knowledge,
or willfulness, as second degree murder does, see
§ 18-3-103(1), C.R.S. 2017, self-defense is an
affirmative defense, Pickering, 276 P.3d at 555.
"[I]t is possible for a person to knowingly cause the
death of another, thus satisfying the basic elements of
second-degree murder under section 18-3-103(1), but to
nevertheless do so in self-defense as defined under section
18-1-704, [C.R.S. 2017, ] and therefore not be guilty of
second-degree murder." Pickering, 276 P.3d at
11 "In Colorado, if presented evidence raises the issue
of an affirmative defense, the affirmative defense
effectively becomes an additional element, and the trial
court must instruct the jury that the prosecution bears the
burden of proving beyond a reasonable doubt that the
affirmative defense is inapplicable." Id. at
12 The supreme court has "consistently held that where
the record contains any evidence tending to establish the
defense of self-defense, the defendant is entitled to have
the jury properly instructed with respect to that
defense." Idrogo, 818 P.2d at 754; see also
People v. Saavedra-Rodriguez, 971 P.2d 223, 228 (Colo.
1998) (quantum of evidence necessary for giving affirmative
defense instruction is "a scintilla of evidence, or some
evidence"). The evidence to support such an instruction
may come from any source, and may even consist of
"highly improbable testimony by the defendant."
People v. Garcia, 28 P.3d 340, 347 (Colo. 2001);
Newell, ¶¶ 21-22.
13 We start by rejecting the prosecution's contention
that this issue is unpreserved and is therefore subject only
to plain error review. Defense counsel preserved the issue by
tendering an affirmative defense jury instruction for
"deadly physical force in defense of person" as to
the first degree and second degree murder charges. When
tendering the self-defense instruction, counsel argued that
there was sufficient evidence to support such an instruction,
and that even if such evidence contradicted defendant's
simultaneous claim that the shooting was accidental, he still
had the right to a self-defense instruction. The court
rejected the instruction, reasoning that defendant's
testimony that he did not intend to pull the trigger was
incompatible with the giving of an affirmative defense
instruction for self-defense. We conclude that counsel's
tendering of the instruction was sufficient to preserve the
issue for appeal. See Newell, ¶ 19
("Because defendant requested the instruction, any error
in failing to give the instruction requires reversal unless
the error did not affect defendant's substantial
14 Defendant was convicted of second degree murder, which is
defined as "knowingly caus[ing] the death of a
person." § 18-3-103(1). Self-defense is an
affirmative defense to second degree murder.
Pickering, 276 P.3d at 555-56.
15 Colorado's self-defense statute, section 18-1-704(1),
[A] person is justified in using physical force upon another
person in order to defend himself . . . from what he
reasonably believes to be the use or imminent use of unlawful
physical force by that other person, and he may use a degree
of force which he reasonably believes to be necessary for
statute clarifies that "[d]eadly physical force may be
used only if a person reasonably believes a lesser degree of
force is inadequate and . . . [t]he actor has reasonable
ground to believe, and does believe, that he . . . is in
imminent danger of being killed or of receiving great bodily
injury." § 18-1-704(2)(a).
Evidence Supporting Self-Defense Instruction
16 Viewing the evidence in the light most favorable to
defendant for this purpose, see Cassels, 92 P.3d at
955, we conclude that there was at least a scintilla of
evidence presented that would support a self-defense
instruction, see Saavedra-Rodriguez, 971 P.2d at
228. That evidence included the following testimony of
defendant and others:
. Several hours before the shooting, the
victim and defendant were wrestling, and the victim put
defendant in a headlock, during which defendant could not
breathe. A witness said that defendant turned "red"
while in the headlock.
. Later that day, after an evening of
drinking, the two got into an altercation in defendant's
apartment during which defendant accused the victim of
stealing defendant's pants, containing about $1800 in
cash. The victim swung at defendant and dragged him into the
kitchen by his neck. With his arms around defendant's
neck, the victim bent defendant over the stove. Defendant
fought back, but ultimately they landed on the floor, with
the victim's hands still around defendant's neck,
causing him to lose consciousness.
. Defendant later woke up in significant
pain and ordered the victim to leave. The victim threatened
defendant that he should "go back to sleep or I'll
put you to sleep." Another struggle ensued during which
the two landed on the living room television stand, breaking
. Defendant then retrieved his shotgun, at
which time he felt "scared" and
"helpless" because his brother and his dog were not
around to protect him and help get the victim out of his
apartment. Defendant "wanted the gun to stand between
[the victim] and [himself to keep the victim] from fighting
and hurting [defendant] physically any more."
. Though the victim initially left when
confronted with the gun, he returned, pounding on the door
and demanding access to look for his cell phone. The victim
pushed his way back into the apartment, but left again when
defendant threatened to call the police.
. When defendant found the victim's
phone shortly thereafter, defendant ran out of the apartment,
gun in hand, to return the phone to him. From ten feet away,
defendant tossed the victim the phone, and the victim walked
. The victim then said, "Give me that
gun. Fight me like a man. Let's fight like men." The
victim moved toward defendant and reached for the gun.
Defendant testified that he thought the victim was
"going to take the gun and hurt me with it." He
also testified that he "didn't expect the gun to go
off." Defendant pulled back and the gun discharged.
. A private security guard who arrived on
the scene just after the shooting testified that defendant
told him that he had been robbed and that "it was
self-defense" (apparently referencing defendant's
. A police detective testified that, after
the shooting, the detective handcuffed defendant, at which
point defendant said, "Is this normal for this kind of
case[, ] being handcuffed for self-defense[?]"
Application of Self-Defense Law to the Facts
17 The trial court concluded that defendant's testimony
that he had pulled the gun "up and away, " combined
with the lack of evidence that defendant intended to pull the
trigger, negated the availability of self-defense as a
defense to the charges. According to the court, this was not
"a situation where the defendant has admitted the
commission of the elements of the charged act but seeks to
justify, excuse, or mitigate the commission of that
act." The court relied on the 1992 Garcia case
in rejecting the instruction. In that case, the supreme court
held that the defendant could not claim that an intruder had
stabbed the victim "and at the same time obtain an
instruction based on the theory that [the defendant] stabbed
[the victim] in the heat of passion." 826 P.2d at
18 We conclude that the trial court erred in its ruling by
not following applicable supreme court precedents from
Idrogo, Saavedra-Rodriguez, Vigil,
Huffman, and Jabich.
19 In Idrogo, the court held that if there is
any evidence in the record tending to establish
self-defense, the court must instruct the jury on that
defense. 818 P.2d at 754; see also
Saavedra-Rodriguez 971 P.2d at 228 (mere "scintilla
of evidence, or some evidence" supports giving a theory
of defense instruction).
20 There was a sufficient legal basis and at least a
scintilla of evidence that would have allowed the jury to
credit defendant's claim of self-defense. Given the
previous fighting between the victim and defendant, the
latter could have rationally perceived that he needed to be
armed so that he could protect himself from the victim.
Defendant's testimony indicated that the threat to him
from the victim was continuing. And his statements to the
detective and the security guard indicating that "it was
self-defense" could have prompted a properly instructed
jury to acquit him based on a self-defense theory. The fact
that he also claimed an accidental shooting was, under the
circumstances he described, not so inconsistent with
self-defense as to deprive him of the right to have the jury
instructed on self-defense.
21 The trial evidence could have allowed the jury to
rationally find that defendant either shot the victim
accidentally or that the gun discharged as a result of his
holding it in self-defense, and either theory could have
properly resulted in an acquittal.
22 We find support for this view in Vigil, 143 Colo.
at 334, 353 P.2d at 85. There, the defendant claimed that a
gun he was holding to defend himself against the victim
accidentally discharged and killed the victim. The supreme
court held that the trial court should have granted his
request for a self-defense instruction, stating that
"[t]he right of self-defense is a natural right
and is based on the natural law of self-preservation."
Id. The supreme court observed that where a
situation begins with an argument, but escalates to the point
where a person is "subjected to or threatened with, such
physical violence that he might have to resort to justifiable
homicide to protect his person, " he is not
"deprive[d] . . . of the right of self-defense."
Id.; see also Huffman, 96 Colo. at 83-84,
39 P.2d at 789-90 (Where the defendant asserted "three
kindred theories of defense: Accident, self-defense, and a
mental condition resulting from the blows upon his head
during the encounter" with the shooting victim, it was
reversible error for the court to decline to instruct the
jury on these theories.); Jabich, 58 Colo. at 179,
143 P. at 1094 (The trial court should have instructed the
jury on ...