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Criminal Jury Instructions

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2.8-3  Exceptions to Use of Deadly Physical Force:  Duty to Retreat, Surrender Property, Comply with Demand -- § 53a-19 (b)

Revised to December 1, 2007

In addition, the state can defeat the defendant's claim of self-defense by proving one of the statutory disqualifications to the use of deadly physical force.  The statute defining self-defense describes certain circumstances in which a person is not justified in using deadly physical force in self-defense against another.  These exceptions apply only to the use of deadly force, so if you have found that the defendant used deadly physical force, you must consider these exceptions.

<Include as appropriate:>

            A.  Duty to retreat

            B.  Surrender property

            C.  Comply with demand

 

A.  Duty to retreat § 53a-19 (b) (1)

(One such / Another) circumstance is that a person is not justified in using deadly physical force upon another person if (he/she) knows that (he/she) can avoid the necessity of using such force with complete safety by retreating.  This disqualification requires a defendant to retreat instead of using deadly physical force whenever two conditions are met: 1) a completely safe retreat is in fact available to (him/her); and 2) (he/she) knows that (he/she) can avoid the necessity of using deadly physical force by making that completely safe retreat.  The law stresses that self-defense cannot be retaliatory. It must be defensive and not punitive.

The term "complete safety," as used in this statute, means without any injury to the defendant whatsoever.  A person acts "knowingly" with respect to a circumstance described in a statute when (he/she) is aware that such circumstance exists.  <See Knowledge, Instruction 2.3-3.>

It is important to remember that the defendant has no burden whatsoever to prove that (he/she) could not have retreated with complete safety or that (he/she) didn't know that a safe retreat was possible before (he/she) used physical force against <insert name of other person>.  To the contrary, you may only reject (his/her) defense on the basis of this statutory disqualification if you find that the state has proved beyond a reasonable doubt that (he/she) did know that (he/she) could retreat with complete safety.

Exception for dwelling1

As a general rule, a defendant is not required to retreat in (his/her) own dwelling before (he/she) may use force.  A dwelling is defined in our law as a place which is usually occupied by a person lodging therein at night.  "Usually occupied" means customary or routine nightly occupancy.  Thus, occupation for some period of time is required.  In considering whether a house is the defendant's dwelling, consider evidence such as where the defendant's clothes and personal effects were kept.2

[<If the case involves a question of co-dwellers:>  To this general rule there is an exception which you may or may not apply here, which is for you to determine as a question of fact.  That exception is that one claiming self-defense in (his/her) own dwelling has the duty to retreat from a co-dweller before (he/she) may employ force against that co-dweller.  A co-dweller is a person who also is usually lodged in those premises at night.

Accordingly, you must first determine if the state has proved that <insert name of other person> was a co-dweller with the defendant at <insert location>.  If the state has failed to prove that <insert name of other person> was a co-dweller, then you go no further on this issue as the defendant would have no duty to retreat.  If, however, you find that the state has proved that <insert name of other person> was a co-dweller with the defendant, you would then consider whether the defendant had a duty to retreat in accordance with the previously stated rule that a person must retreat before using deadly physical force if (he/she) knows that (he/she) can retreat with complete safety.

If you find that the state has proved beyond a reasonable doubt that the defendant and <insert name of other person> were co-dwellers and that a retreat with complete safety was available to the defendant and that the defendant knew it, but did not retreat, you shall then find that the state has proved beyond a reasonable doubt that the defendant was not justified in using deadly force.]

B.  Surrender property § 53a-19 (b) (2)

(One such / Another) circumstance under which a person is not justified in using deadly physical force in self-defense against another is when (he/she) knows that (he/she) can avoid the use of physical force with complete safety by surrendering an object of personal property to the assailant.

Under this provision, if the assailant's conduct appears motivated by (his/her) claim to property that the defendant possesses and the defendant knows that if (he/she) surrendered the property that the assailant would cease the assault upon the defendant, then the defendant may not use deadly physical force in defense and must surrender the property.

It is important to remember that the defendant has no burden whatsoever to prove that (he/she) knew that <insert name of assailant> would cease the assault upon the defendant if the defendant surrendered <insert property in question>.  To the contrary, you may only reject (his/her) defense on the basis of this statutory disqualification if you find that the state has proved beyond a reasonable doubt that the defendant knew that <insert name of assailant> would flee without harming (him/her) if (he/she) surrendered <insert property in question>.

C.  Comply with demand § 53a-19 (b) (3)

(One such / Another) circumstance under which a person is not justified in using deadly physical force in self-defense against another is when (he/she) knows that (he/she) can avoid the necessity of using such force with complete safety by complying with a demand that (he/she) abstain from performing an act which (he/she) is not obliged to perform.

Under this provision, if <insert name of assailant>'s conduct appears motivated by (his/her) insistence that the defendant stop <insert defendant's conduct in question> and the defendant was not obliged to <insert defendant's conduct in question> and the defendant knew that <insert name of assailant> would cease (his/her) use of physical force against the defendant, then the defendant may not use deadly physical force in self-defense and must comply with the demand.

It is important to remember that the defendant has no burden whatsoever to prove that (he/she) knew (he/she) would no longer be in danger from <insert name of assailant> if the defendant stopped <insert defendant's conduct in question>.  To the contrary, you may only reject the defense on the basis of this statutory disqualification if you find that the state has proved beyond a reasonable doubt that the defendant knew that if (he/she) complied with the demands of <insert name of assailant> then (he/she) would have no need to defend (himself/herself).
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1 See State v. James, 54 Conn. App. 26, 32-26 (1999).

2 See State v. Pranckus, 75 Conn. App. 80, 92 (2003).

Commentary

General Statutes § 53a-19 (b) applies only to the use of deadly physical force.  A person is not limited by these requirements before using nondeadly physical force in self-defense.  See State v. Anderson, 227 Conn. 518, 529 (1993) (one who can safely retreat is not required to do so before using nondeadly force).

Knowledge of complete safety
The statute requires that the person must know that he or she can avoid the necessity of using deadly physical force with complete safety.  State v. Quintana, 209 Conn. 34, 46 (1988).  It is reversible error to fail to include the word "complete" before "safety."  State v. Anderson, 227 Conn. 525, 532 (1993); see also State v. Byrd, 34 Conn. App. 368, 374-77, aff'd, 239 Conn. 405 (1996).

"A charge on the duty to retreat is flawed if it fails to instruct the jury to consider the subjective component of the duty to retreat: the defendant's knowledge of his ability to retreat."  (Internal quotation marks omitted.)  State v. Montanez, 71 Conn. App. 246, 263 (2002).  The correct measure of a person's knowledge of the ability to retreat in complete safety is "the subjective standard of the defendant's actual knowledge."  State v. Ash, 231 Conn. 484, 495 (1994); State v. Amado, 254 Conn. 184,195-97 (2000).

Duty to retreat
"Connecticut is among a minority of jurisdictions . . . that has followed the position advanced by the Model Penal Code that, before using deadly force in self-defense, an individual must retreat."  State v. Anderson, 227 Conn. 518, 530 (1993).  The statutory provision requiring retreat in lieu of deadly force replaces common-law rules.  See State v. Byrd, 233 Conn. 517 (1995).  The trial court need not instruct the jury on the duty to retreat if the state does not claim that the defendant should have retreated. State v. Lemoine, 256 Conn. 193, 200 (2001).

The statute provides three exceptions to the duty to retreat.

1.  Dwelling

A person is not required to retreat if in his or her own home or dwelling.  "[T]he dwelling exception to the duty to retreat rule does not encompass the common areas of the defendant's apartment building such as stairways, hallways and foyers."  State v. Silva, 43 Conn. App. 488, 493-94 (1996); State v. Rodriquez, 47 Conn. App. 91, 96 (1997). 

Section 53a-19 incorporates the definition of dwelling in 53a-100, which is "a building which is usually occupied by a person lodging therein at night."  This definition "contemplates a duration element by requiring usual inhabitation at night.  Usual in this context obviously means customary or routine occupancy . . . in short, occupation for period of duration."  State v. Bailey, 209 Conn. 322, 343 (1988); see also State v. Adams, 52 Conn. App. 643, 649 (1999) (trial court's instruction that in determining whether it was the victim's dwelling "at or about the time in question" did not materially alter the statutory definition of dwelling).

The co-dweller retreat rule was adopted from the Restatement (Second), Torts § 65 (1965) in State v. Shaw, 185 Conn. 372, 279 (1981), cert. denied, 454 U.S. 1155, 102 S.Ct. 1027, 71 L.Ed.2d 312 (1982).  A person is required to retreat when in his or her own dwelling when threatened by another who dwells in the same place.  The status of the other person as a co-dweller is a question for the jury.  See State v. James, 54 Conn. App. 26, 37 (1999).

2.  Workplace

A person is not required to retreat if he or she is in his or her place of work and was not the initial aggressor.  The right to use deadly force in one's workplace was recognized at common law.  See State v. Feltovic, 110 Conn. 303, 311-12 (1929).

3.  Peace officer

A peace officer or a private person assisting such officer at his direction, acting pursuant to § 53a-22, is not required to retreat.

Surrendering property
The instruction must convey the person's knowledge that the assailant would flee if that person surrendered the property sought.  State v. Schiavo, 93 Conn. App. 290, 296-99 (2006) (court improperly substituted "could" in one part of the charge).

"A person is not permitted to use deadly physical force in self-defense just because that person reasonably believed that the victim was attempting to rob that person."  State v. Harrison, 32 Conn. App. 687, 694, cert. denied, 227 Conn. 932 (1993); see also State v. Byrd, 34 Conn. App. 368, aff'd, 239 Conn. 405 (1996) (deadly force is not allowed if person can retreat in complete safety or avoid harm by surrendering property).
 


 

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