People v. Justin Brendan Martinez ( 2022 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 29, 2022
2022COA111No. 19CA1481, Peo v Martinez — Crimes — Reckless
Manslaughter; Criminal Law — Jury Instructions — Affirmative
Defenses — Traverse — Self-Defense — Use of Physical Force in
Defense of a Person — Use of Deadly Physical Force Against an
Intruder
After the defendant in this criminal case was found guilty of
reckless manslaughter, he appealed, arguing, among other issues,
that the trial court erred by declining to instruct the jury that the
force-against-intruders defense (known as the “make-my-day”
defense) is an affirmative defense to reckless manslaughter.
A division of the court of appeals holds that, like ordinary self-
defense, the force-against-intruders defense is an affirmative
defense only with respect to offenses requiring a mental state of
knowingly or intentionally. Applying the reasoning of People v.
Pickering, 276 P.3d 553 (Colo. 2011), the division concludes that
the affirmative defense of force-against-intruders is inconsistent
with conduct involving a reckless mental state, and, therefore, the
trial court properly declined to give an affirmative defense
instruction with respect to the reckless manslaughter charge.
COLORADO COURT OF APPEALS 2022COA111Court of Appeals No. 19CA1481
Adams County District Court No. 18CR1636
Honorable Mark D. Warner, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Justin Brendan Martinez,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE HARRIS
Dunn and Johnson, JJ., concur
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
¶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
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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
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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.
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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.
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. 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.
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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. A traverse, on the other hand, refutes
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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
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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
1 To the extent Martinez argues that this instruction was improper,
the argument is foreclosed by People v. Pickering, 276 P.3d 553, 557
(Colo. 2011), which, as Martinez acknowledges, affirmed the use of
a substantially identical jury instruction.
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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.
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¶ 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
unjustifiable risk of harm to the intruder.” It follows, he says, that
the force-against-intruders defense is not inconsistent with reckless
conduct.
¶ 24 That argument does not hold up. Under the force-against-
intruders statute, any risk of harm to the intruder is, by definition,
“justified.” See id.
¶ 25 The General Assembly has authority to delineate statutory
defenses. See People v. Guenther, 740 P.2d 971, 977 (Colo. 1987).
In enacting the force-against-intruders statute, the General
Assembly determined that one way to protect citizens’ “right to
expect absolute safety within their own homes” was to expand an
occupant’s right to use deadly force against a person who
unlawfully enters a home. See § 18-1-704.5; see also People v. Rau,
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2022 CO 3, ¶ 3. Accordingly, once the specified statutory
conditions are met, the occupant of a home is justified in using
deadly force against the intruder, even if that amount of force is
disproportionate to any force used by the intruder and therefore
objectively unnecessary to repel any imminent threat.
¶ 26 True, the use of disproportionate force creates a substantial
risk of harm to the intruder. But the risk of harm is unjustifiable
only if the occupant’s use of deadly force “constitutes a gross
deviation from the reasonable standard of care,” see People v. Hall,
999 P.2d 207, 216 (Colo. 2000), and it cannot be a gross deviation
because the statute specifically authorizes the occupant’s conduct.
Put another way, the legislature has determined that the risk of
harm (including death) to certain intruders (those who have
committed or intend to commit a crime in the home and who might
use physical force against any person) from the occupant’s use of
deadly force is justified. See Mata-Medina v. People, 71 P.3d 973,
978 (Colo. 2003) (Whether a risk is unjustifiable depends on the
nature of the risk “in relation to the nature and purpose of the
actor’s conduct.”).
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¶ 27 Therefore, contrary to Martinez’s argument, the force-against-
intruders statute does not allow an occupant to consciously
disregard a substantial and unjustifiable risk of harm to the
intruder. Instead, like ordinary self-defense, the force-against-
intruders statute requires that the occupant act reasonably and
justifiably. What constitutes reasonable and justifiable conduct,
though, is statutorily expanded when an intruder, bent on
committing a crime and using physical force against an occupant,
unlawfully enters a person’s home. And because a person cannot
act both justifiably under the force-against-intruders statute and
recklessly, the force-against-intruders defense does not operate as
an affirmative defense to reckless manslaughter. See Pickering, 276
P.3d at 556.
B. Non-Deadly Force Instruction
¶ 28 A person has a right to use non-deadly physical force against
another person to defend himself from what he reasonably believes
to be the use or imminent use of unlawful physical force by the
other person, and he can use a degree of force that he reasonably
believes is necessary for that purpose. § 18-1-704(1). But, as we
have noted, to be justified in using deadly physical force, a person
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must reasonably (and actually) believe that he is in imminent
danger of being killed or sustaining serious bodily injury and must
reasonably believe that a lesser degree of force is inadequate. § 18-
1-704(2).
¶ 29 The trial court instructed the jury regarding Martinez’s right to
use deadly physical force in self-defense. Martinez contends that
the trial court erred by failing to also instruct the jury regarding his
broader right to use non-deadly physical force.
¶ 30 “Deadly physical force” means “force, the intended, natural,
and probable consequence of which is to produce death, and which
does, in fact, produce death.” § 18-1-901(3)(d), C.R.S. 2021.
Whether physical force is properly considered “deadly” does not
turn on the subjective intent of the person using the force but
rather on the “objective likelihood that, in the absence of some
intervening circumstance, a result will occur.” People v. Opana,
2017 CO 56, ¶ 14. The question is whether the physical force used
by the defendant “would normally be expected to, and in fact did,
produce death.” Id. at ¶ 16.
¶ 31 The evidence at trial established that Martinez shot the victim
with a 12-gauge shotgun from a distance of about three feet. The
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shotgun was loaded with birdshot, so instead of discharging a
single projectile, the gun fired a shell loaded with tiny pellets. The
pellets penetrated as one big mass, creating a two-and-a-half-inch
hole in the back of the victim’s knee. Then the pellets lacerated the
femoral artery, causing the victim to quickly bleed to death. An
expert testified that “this type of wound” was “potentially
survivable,” but only if the victim received “very prompt” medical
attention.
¶ 32 Martinez did not request an instruction on the use of non-
deadly physical force. Thus, reversal is not warranted in the
absence of plain error. Hagos v. People, 2012 CO 63, ¶ 14. “Plain
error is error that is ‘obvious,’ ‘substantial,’ and ‘grave.’” People v.
Malloy, 178 P.3d 1283, 1288 (Colo. App. 2008) (citation omitted).
To qualify as obvious, the error must be one that is so “clear-cut,” a
trial judge “should be able to avoid it without benefit of objection.”
People v. Ujaama, 2012 COA 36, ¶ 42 (citation omitted).
¶ 33 Even assuming the court erred by not giving an instruction
concerning the right to use non-deadly force, we cannot say, in light
of the evidence, that the error was obvious. Martinez fired a
shotgun at close range into a part of the victim’s body that,
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according to the expert, “has large caliber arteries and veins,”
causing rapid and profuse bleeding. In the absence of any objection
or a tendered alternative instruction, the court could reasonably
have concluded that there was no serious dispute that Martinez’s
conduct was objectively likely to produce death.
C. Totality of the Circumstances Instruction
¶ 34 The court instructed the jury that intoxication was irrelevant
to Martinez’s use-of-force defenses. As the court explained in the
instruction, the defenses require that the “actor using force in
defense acted as an objectively reasonable person,” and the
“reasonable person standard requires the actor using physical force
against another in defense to appraise the situation as would a
reasonable sober person.”
¶ 35 Martinez argues that the instruction misstated the law
because, in evaluating the reasonableness of his decision to use
force, the jury had to consider the totality of the circumstances,
including the fact that he was drunk.
¶ 36 While self-defense takes into account the defendant’s actual
belief or state of mind, the defense ultimately requires that a
reasonable person would have believed and acted as the defendant
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did. People v. Vasquez, 148 P.3d 326, 330 (Colo. App. 2006). A
“reasonable person” means “an objectively reasonable individual
and not a subjectively reasonable one possessing the individual
defendant’s personality traits or defects.” People v. Darbe, 62 P.3d
1006, 1011 (Colo. App. 2002). Therefore, the reasonable person
standard requires a defendant to appraise the situation as would a
reasonable sober person. Vasquez, 148 P.3d at 330. The
instruction was thus an accurate statement of the law.
III. Cumulative Error
¶ 37 Martinez is not entitled to reversal based on cumulative error.
“For reversal to occur based on cumulative error, a reviewing court
must identify multiple errors that collectively prejudice[d]” the
defendant’s substantial rights. Howard-Walker v. People, 2019 CO
69, ¶ 25. Here, we have assumed a single error that did not
amount to plain error. Therefore, reversal is not warranted. See
People v. Thames, 2019 COA 124, ¶ 69 (“[A] single error is
insufficient to reverse under the cumulative error standard.”).
IV. Conclusion
¶ 38 The judgment is affirmed.
JUDGE DUNN and JUDGE JOHNSON concur.
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