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Criminal Jury Instructions

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2.8-2  Exceptions to Justification:  Provocation, Initial Aggressor, Combat by Agreement -- § 53a-19 (c)

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 self-defense.  The statute defining self-defense describes certain circumstances in which a person is not justified in using any degree of physical force in self-defense against another.

<Include as appropriate:>

            A.  Provocation

            B.  Initial Aggressor

            C.  Combat by Agreement

A.  Provocation – § 53a-19 (c) (1)

(One such / Another) circumstance under which a person is not justified in using any degree of physical force in self-defense against another is when (he/she) provokes the other person to use physical force against (him/her).

In order to provoke the use of physical force by another, it is not enough that the defendant by (his/her) conduct elicited the use of physical force by another; rather the defendant must have embarked upon such conduct with the specific intent to provoke the other into using physical force and intending to cause the other physical injury or death.

The defendant must have specifically intended to provoke another into using physical force, and then used force to defend (himself/herself) from the ensuing use of force by the person provoked.

It is important to remember that the defendant has no burden whatsoever to prove that (he/she) did not provoke <insert name of decedent/complainant> into using physical force against (him/her).  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 provoked the use of physical force by <insert name of decedent/complainant> against (him/her).

B.  Initial aggressor – § 53a-19 (c) (2)

(One such / Another) circumstance under which a person is not justified in using any degree of physical force in self-defense against another is when (he/she) is the initial aggressor in the encounter with the other person, and does not both withdraw from the encounter and effectively communicate (his/her) intent to do so before using the physical force at issue in the case.

Under this provision, the state can prove that the defendant was not justified in using physical force in self-defense by proving beyond a reasonable doubt that (he/she) was the initial aggressor in (his/her) encounter with <insert name of other person> and that (he/she) neither withdrew from that encounter nor effectively communicated (his/her) intent to do so before using physical force against <insert name of other person>. 

To prove that the defendant was the initial aggressor in (his/her) encounter with <insert name of other person>, the state need not prove that the defendant was the first person to use physical force in that encounter.  The initial aggressor can be the first person who threatened to use physical force, or even the first person who appeared to threaten the imminent use of physical force under circumstances.

To prove that the defendant did not withdraw and communicate (his/her) intent to do so, the state must prove that (he/she) did not abandon the conflict in such a way that the fact of (his/her) withdrawal was perceived by <insert name of other person> so that <insert name of other person> was aware that there was no longer any danger from the original aggression.

It is important to remember that the defendant has no burden whatsoever to prove that (he/she) was not the initial aggressor or that (he/she) withdrew from the encounter and communicated (his/her) intent to do so 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) was the initial aggressor, did not withdraw from the encounter, and did not communicate (his/her) intent to withdraw before using physical force.

C.  Combat by agreement § 53a-19 (c) (3)

(One such / Another) circumstance under which a person is not justified in using any degree of physical force in self-defense against another is when the physical force is the product of an illegal combat by agreement.

Under this provision, it is not necessary that there be a formal agreement – such an agreement may be inferred from the conduct of the parties.  To infer such an agreement you must look at all the circumstances leading up to and preceding the event in question as well as all of the circumstances surrounding this event itself based on the entire evidence presented and your own credibility assessments.

[<Include if the facts warrant:>  This exception would not apply despite an agreement for mutual combat if you further find that its terms were violated by <insert name of complainant/decedent> and that (his/her) conduct toward the defendant was in violation of their agreement, and further that the defendant knew of such violation.  Violation means that <insert name of complainant/decedent>'s use of force exceeded the terms of the agreement with the defendant, and that it escalated beyond what had been agreed to as to either the extent or form of combat.]1

It is important to remember that the defendant has no burden whatsoever to prove that (his/her) use of physical force was not the product of a combat by agreement.  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 and <insert name of other alleged combatant(s)> had engaged in combat by agreement.
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1 See State v. Abraham, 84 Conn. App. 551, 558, cert. denied, 271 Conn. 938 (2004).

Commentary

The exceptions to justification in § 53a-19 (c) serve to negate justification because they involve factual circumstances that disprove that the defendant was acting defensively, and apply to all claims of defense or defense of others, regardless of the degree of force used.  See State v. Silveira, 198 Conn. 454, 470 (1986).

Provocation
In order to provoke the use of physical force by another, it is not enough that the defendant by his or her conduct elicited the use of physical force by another; rather the defendant must have embarked upon such conduct with the specific intent to provoke the other into using physical force and intending to cause the other physical injury or death.  See State v. Hawkins, 19 Conn. App. 609, 616, cert. denied, 212 Conn. 820 (1989).  Section 53a-19 (c) (1) also applies to the situation in which the defendant, intending to harm the victim by retaliation, intentionally provokes the victim into using physical force against the defendant by attacking a third party.  Id., 617.

Initial Aggressor
There is no legal definition of "initial aggressor," so it is proper to instruct the jury to apply the ordinary meaning of the words.  State v. Ramos, 261 Conn. 156, 164-69 (2002); State v. Whitford, 260 Conn. 610, 620-24 (2002).

It is improper to define "initial aggressor" simply as the first person to use force.  State v. Jimenez, 228 Conn. 335, 341 (1994) (such an instruction forecloses the jury from considering the claim of self-defense at all).  In State v. Corchado, 188 Conn. 653, 666-68 (1982), the court included "directed verdict" language in defining the "initial aggressor" as one who makes "any direct personal assault . . . in anger" or one who "deliberately places himself in a position where he has reason to believe his presence would provoke trouble" or as one who "leaves a quarrel to go to his home to arm himself, and then returns to the scene of the quarrel and kills the other person."  

Withdrawal
An initial aggressor is justified in using physical force if "he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force."  General Statutes § 53a-19 (c) (2).  "An instruction as to the effect of an aggressor withdrawing from an encounter and communicating the intent to withdraw is only necessary where the particular factual situation supports such an instruction."  State v. Diggs, 219 Conn. 295, 299 (1991).  Further, the aggressor's intent to withdraw must clearly be made known to his or her victim in order to invoke the doctrine of communicated withdrawal.  Id.  In other words, the initial aggressor must withdraw or abandon the conflict in such a way that the fact of withdrawal is perceived by his or her opponent, so that the opponent is aware that he or she is no longer in any danger from the original aggressor.  State v. Cartagena, 47 Conn. App. 317, 321 (1997), cert. denied, 244 Conn. 904 (1998). 

Combat by agreement
The agreement need not be formal or express, as long as there is any evidence to support a reasonable inference that the participants agreed, either expressly or impliedly, to engage in combat.  State v. Silveira, 198 Conn. 454, 471 (1986); State v. Johnson, 53 Conn. App. 476, 480-82, cert. denied, 249 Conn. 929 (1999).
 


 

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