2.8-4 Defense of Premises -- § 53a-20
Revised to December 1, 2007
The evidence in this case raises the issue of the defense of premises. This defense applies to the charge[s] of <insert applicable crimes> [and the lesser included offense[s] of <insert lesser included offenses>.]
After you have considered all of the evidence in this case, if you find that the state has proved beyond a reasonable doubt each element of <insert applicable crimes and any lesser included offenses>, you must go on to consider whether or not the defendant acted justifiably in the defense of premises. In this case you must consider this defense in connection with count[s] __ of the information.
A person is justified in the use of force against another person that would otherwise be illegal if (he/she) is acting in the defense of premises. It is a complete defense to certain crimes, including <insert applicable crimes and any lesser included offenses>. When, as in this case, evidence that the defendant's actions were in defense of premises is introduced at trial, the state must not only prove beyond a reasonable doubt all the elements of the crime charged to obtain a conviction, but must also disprove beyond a reasonable doubt that the defendant acted in defense of premises. If the state fails to disprove beyond a reasonable doubt that the defendant acted in defense of premises in accordance with my instructions, you must find the defendant not guilty of <insert applicable crimes and any lesser included offenses> despite the fact that you have found the elements of (that crime / those crimes) proved beyond a reasonable doubt. The defendant has no burden of proof whatsoever with respect to this defense.
The statute defining this defense reads in pertinent part as follows:
a person in possession or control of premises, or a person who is licensed or privileged to be in or upon such premises, is justified in using reasonable physical force upon another person when and to the extent that (he/she) reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of a criminal trespass by such other person in or upon such premises.
The term "premises" is generally defined as any real estate or building or any structure or vehicle or watercraft used for lodging persons overnight or for carrying on a business. [When a building consists of separate units, such as apartments or offices, each unit is a separate premises.]
To convict the defendant of <insert applicable crimes>, the state must disprove beyond a reasonable doubt one of the following elements:
Element 1 - Right to defend
The first element is that the defendant had possession or control of the premises. The right to defend premises does not apply to everyone, but only to persons in possession or control of such premises, or persons privileged to be there, such as visitors or guests of the owner. The state can disprove this element by proving that the defendant was not in control of the premises or otherwise licensed or privileged to be there.
Element 2 - From a criminal
The second element is that <insert name of decedent/complainant> was criminally trespassing on the premises. The right to defend premises does not allow the use of physical force every time someone enters those premises without consent. For example, force may not be used against someone who enters the premises merely by accident or mistake. Rather, physical force may be used only to prevent an actual or attempted criminal trespass. <Instruct according to the type of criminal trespass that the facts support.>1
Element 3 - Actual belief that
force was necessary
The third element is that the defendant actually -- that is, honestly and sincerely -- believed that <insert name of decedent/complainant> was trespassing on the premises at <identify location of premises> and was refusing to leave after having been asked to. The defendant must have actually believed that the use of physical force was necessary to terminate the trespass.
"Physical force" means actual physical force or violence or superior physical strength. Physical force may not be used, however, if it reasonably appears that the trespasser is leaving or about to flee, nor may it be used once the trespasser has left the premises, for this would no longer be defensive force, but rather retaliatory and unlawful force.2
Element 4 - Reasonableness of
The fourth element is that the defendant's belief was reasonable, and not irrational or unreasonable under the circumstances. You must ask whether a reasonable person in the defendant's situation, viewing the circumstances from the defendant's point of view, would have shared the belief. In other words, was the defendant's belief that the use of physical force was necessary to prevent or terminate the criminal trespass of <insert name of decedent/complainant> reasonable under the circumstances.
[Deadly physical force
<If the state is claiming that the defendant used deadly physical force:>
The defense of premises against a criminal trespasser allows only the use of reasonable physical force. The law distinguishes physical force from deadly physical force, and allows the use of deadly physical force only in limited circumstances.3 The state is claiming that the physical force used by the defendant to defend the premises against the criminal trespass of <insert name of decedent/complainant> was deadly physical force.
"Physical force" means actual physical force or violence or superior physical strength. The term "deadly physical force" is defined by statute as physical force which can reasonably be expected to cause death or serious physical injury. Under this definition, the physical force used by the defendant need not actually have caused a death or a serious physical injury in order to be considered deadly physical force, nor need it have been expected or intended by the defendant to result in such serious consequences. Instead, what determines whether the defendant used deadly physical force is whether the force actually used by the defendant could reasonably have been expected to cause death or serious physical injury. "Physical injury" is defined by statute as impairment of physical condition or pain, and "serious physical injury" is defined as physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.
It is up to you to determine whether the defendant used deadly physical force or non-deadly physical force against <insert name of the other person>. You are to make that determination after considering all the evidence. If the state claims that the defendant used deadly physical force, the state must prove that beyond a reasonable doubt.
[<Include as warranted by evidence:> Deadly physical force may be used in defense of premises in specific circumstances.
Arson is the reckless causation of damage to a building by the intentional starting of a fire or causing an explosion.
A crime of violence is one in which physical force is exerted for the purpose of violating, injuring, damaging, or abusing person or property.
A person may use deadly physical force when (he/she) reasonably believes that deadly physical force is necessary to prevent or end a forcible unlawful entry into (his/her) dwelling or place of work, and for the sole purpose of such prevention or termination. [Dwelling means a building which is usually occupied by a person at night, whether or not that person is actually present.]
Deadly physical force is allowed in (this / these) situation[s] even when the person has no fear that (he/she) will be harmed by the trespasser, unless the state proves beyond a reasonable doubt that the circumstances in question did not occur.]
You must remember that the defendant has no burden of proof whatsoever with respect to this defense. Instead, it is the state that must disprove beyond a reasonable doubt that the defendant acted in the defense of premises if it is to prevail on its charge[s] of <insert applicable crimes>[, or of any of the lesser-included offenses on which you have been instructed]. The state need not disprove all of the elements of the defense of premises. Instead, it can defeat the defense by disproving any part of defense of premises beyond a reasonable doubt to your unanimous satisfaction.
If you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements of <insert applicable crimes>, you shall then find the defendant not guilty and not consider the defense.
If you unanimously find that all the elements of <insert applicable crimes and any lesser included offenses> have been proved beyond a reasonable doubt, you shall then consider the defense of premises. If you unanimously find that the state has disproved beyond a reasonable doubt at least one of the elements of the defense, you must reject that defense and find the defendant guilty.
If, on the other hand, you unanimously
find that the state has not disproved beyond a reasonable doubt at least one of
the elements of the defense, then on the strength of that defense alone you must
find the defendant not guilty of <insert applicable crimes> despite the
fact that you have found the elements of (that crime / those crimes) proven beyond a reasonable
doubt [and not consider any of the lesser-included offenses.
1 General Statutes §§ 53a-107, 53a-108, and 53a-109 define criminal trespassing. The defendant's request for an instruction on this defense should specify the degree of criminal trespass that he or she is claiming occurred. If the elements of some degree of criminal trespass are not present, then this defense does not apply. See State v. Brunette, 92 Conn. App. 440, 448-49 (2005).
2 State v. Ghiloni, 35 Conn. Sup. 570 (App. Sess. 1979), cert. denied, 175 Conn. 758 (1978); see also State v. Taxiltaridis, 2 Conn. App. 617, 619-20 (1984).
3 Section 53a-20 (1) also permits a person to use deadly physical force "in defense of a person as prescribed in section 53a-19." In such a case, the defense would not be defense of premises, but defense of person. See Self-Defense and Defense of Others, Instruction 2.8-1, and Duty to Retreat, Instruction 2.8-3.
4 The existing statutory scheme allows deadly force to protect premises against attempted arson. Criminal attempt is defined at General Statutes § 53a-49, arson at General Statutes §§ 53a-111 through 53a-113. Under this statutory scheme, therefore, one may justifiably use deadly force against someone in the act of setting a fire in violation of our arson statutes, but not one second after the blaze has begun. This result, while at first glance anomalous, is consistent with the law of self-defense, which allows deadly force only to prevent death or serious bodily injury, or to prevent a forcible entry into or a violent felony within a dwelling. Any other interpretation would result in a retaliatory and unlawful use of force.
5 An interesting analysis of the definition of violent crimes, and the degree of force that may lawfully be used in defense thereof, is contained in State v. Moore, 31 Conn. 479, 483 (1863). That case held that in a criminal negligence action it was not unlawful for the defendant-shopowner to use spring-guns as a defense against burglars, when innocent persons were not injured thereby. Although other states have come to the opposite conclusion; see, e.g., Annot. 47 ALR 3d 651, 661; this case still appears to be good law in Connecticut.
In order for this defense to apply, the defendant would have had to be privileged to be on the premises, and the victim would have had to be a criminal trespasser. State v. Garrison, 203 Conn. 466, 472 (1987).
A person defending his or her
dwelling or place of work does not have a duty to retreat before using deadly
physical force. State v. Amado, 254 Conn. 184, 196-97 (2000). This is
consistent with the exception from the duty to retreat from one's dwelling when
confronted with deadly physical force.