source: Caselaw Access Project

author: Justice HOBBS Justice COATS,

license: Public Domain

text:
    Bradley CASSELS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    No. 03SC229.
    Supreme Court of Colorado, En Banc.
    June 28, 2004.

      David S. Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.
    Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.
   Justice HOBBS

delivered the opinion of the Court.

We granted certiorari in this case to review the court of appeals decision in People v. Cassels, No. 01CA0175, 2003 WL 192140 (Colo.App. Jan.23, 2003). The court of appeals affirmed the trial court's judgment of conviction entered upon a jury verdict finding defendant Bradley Cassels guilty of see-ond-degree murder for the death of his roommate, Greg Morris. We hold that the trial court should have instructed the jury on provocation and the doctrine of no-retreat because there was sufficient evidence in the case to support each instruction. We hold that the errors require reversal of Cassels conviction because they deprived the defendant of the possibility of an acquittal, or alternatively, a shorter sentence.

I.

According to his testimony at trial, from which the following account is taken, Cassels was unemployed and struggling to pay his bills in October, 1999. Morris, a former coworker, agreed to let Cassels move into his apartment. The apartment was small, with only one bedroom and one entrance. Cassels and Morris agreed to split the rent and other expenses. Cassels slept in the only bedroom because Morris preferred sleeping on the couch in the living room.

By January, 2000, Cassels and Morris' relationship had deteriorated and become tense and volatile. Morris had started insulting Cassels, calling him a "mooch" and telling him he was not a very good person. The men agreed that Cassels would move out by the end of the month.

On January 11, 2000, Cassels was still living with Morris. He came home from work and went into his bedroom, where he drank two quarts of beer, played video games, and watched television. He subsequently went into the bathroom to take a shower. Morris returned home while Cas-sels was in the shower. Morris "stormed" into the bathroom like a "wild man," pulled open the shower curtain, yelled something unintelligible to Cassels, and then walked out.

Cassels got out of the shower and wrapped himself in a towel. He walked into the living room and told Morris that the bathroom was available. Morris replied that he did not want to use the "fucking bathroom." Morris began yelling at Cassels, calling him a "no good son of a bitch" and a "low-life," among other things. Morris also told Cassels that the two of them were going to fight. Morris threatened to "beat the hell out of" Cassels and "put him in the hospital." Cassels told Morris that he did not want to fight and returned to his bedroom to put on some clothes.

Before Cassels had time to get dressed, Morris burst through the bedroom door. Morris continued to threaten Cassels and started pushing and shoving him. Still undressed, Cassels made his way back into the living room. Morris followed Cassels again and continued to push him and threaten him.

As the incident continued, Morris positioned himself in front of the only exit from the apartment. He stood next to an iron bar that he previously told Cassels would make a good weapon. Cassels had never seen Morris in such a rage and became afraid that Morris was going to assault him. - Cassels went to his bedroom and retrieved a loaded gun with the intent to frighten Morris and cause him to calm down and stop threatening and pushing him. When Cassels exited his room with the gun, he "freaked out" and "lost it." He shot Morris nine times, emptying the gun.

Cassels testified he did not remember shooting Morris. When Cassels saw Morris lying on the floor of the living room, he called 911 and told the dispatcher that he shot his roommate. Morris did not survive the gunfire.

The prosecution charged Cassels with one count of first-degree murder pursuant to seetion 18-38-1022, 6 C.R.S. (2000), one count of second-degree murder pursuant to section 18-38-108, 6 C.R.S. (2000), and two counts of crime of violence pursuant to section 16-11-309, 6 C.R.S. (2000).

At trial, the court instructed the jury to consider whether Cassels acted in self-defense. But, the trial court refused the defense's request to instruct the jury on provocation through a special. The trial court ruled that "the shooting has to result as from the sudden heat of passion that Mr. Cassels was so overcome by this serious and highly provoking act ... that he responded without time to think. And that's not what happened." The trial court based its ruling on the fact that Cassels retrieved his gun for a particular purpose-to scare Morris-which showed he had time think about his actions.

The trial court also refused to deliver a defense-requested - no-retreat - instruction. The trial court reasoned that the instruction was not required because it found that: (1) the standard self-defense instruction was sufficient; (2) an instruction on retreat is only warranted when the defendant is the initial aggressor; and (8) the instruction as tendered was inappropriate because it contained language about the defendant being where he had a right to be, which was not at issue in the case.

The jury found Cassels guilty of second-degree murder. The trial court entered judgment of conviction on the jury verdict and sentenced Cassels to forty years in the Department of Corrections. On appeal, Cas-sels challenged the trial court's refusal to instruct the jury on the provocation mitigator and the doctrine of no-retreat. Finding no error, the court of appeals upheld Cassels conviction and sentence.

II.

We hold that the trial court should have instructed the jury on provocation and the doctrine of no-retreat because there was sufficient evidence in the case to support each instruction. We hold that the errors require reversal of Cassels' conviction because they deprived the defendant of the possibility of an acquittal, or alternatively, a shorter sentence.

A. Applicable Law

We first address the standard of review applicable to requested defense jury instructions; we then turn to the law of provocation and the doctrine of no-retreat.

1. Defense-Requested Jury Instructions

The trial court has a duty to correctly instruct the jury on all matters of law for which there is sufficient evidence to support giving instructions. People v. Garcia, 28 P.3d 340, 348 (Colo.2001). When considering whether a defendant is entitled to requested instructions, we consider the evidence in the light most favorable to the defendant. Mata-Medina v. People, 71 P.3d 973, 979 (Colo.2003). A defendant is entitled to instructions on a certain statutory grade of criminal homicide as long as there is any supporting evidence, regardless of how incredible, unreasonable, improbable, or slight it may be. Id. (quoting Read v. People, 119 Colo. 506, 509, 205 P.2d 233, 235 (1949) and Crawford v. People, 12 Colo. 290, 293, 20 P. 769, 770 (1889)). A defendant is entitled to an instruction on a particular affirmative defense when he or she raises some credible evidence to support it. $ 18-1-407(1), 6 C.R.S. (2008); Gorman v. People, 19 P.3d 662, 668 (Colo.2000).

2. Provocation and Second-Degree Murder

Prior to 1996, our criminal code contained a separate offense named heat of passion manslaughter. Ch. 295, see. 18, § 18-8-104, 1996 Colo. Sess. Laws 1840, 1844-45. The manslaughter statute provided that:

(1) A person commits the crime of manslaughter if;
(c) Such person knowingly causes the death of another person under circumstances where the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person who performs the killing sufficiently to excite an irresistible passion in a reasonable person; but, if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the killing is murder.

§ 18-3-104, 8B C.R.S. (1995 Supp.); Ch. 295, see. 13, § 18-3-104, 1996 Colo. Sess. Laws 1840, 1844-45. Heat of passion manslaughter was classified as a class 8 felony. § 18-3-104; Ch. 295, see. 18, § 18-8-104, 1996 Colo Sess. Laws 1840, 1844-45.

The General Assembly amended our erimi-nal code in 1996 and eliminated the separate offense of heat of passion manslaughter. A homicide committed in the heat of passion, or upon provocation, is now treated as a less culpable form of second-degree murder. Thus, the issue of provocation is treated as a factor in mitigation of second-degree murder affecting the applicable felony classification, and is located within section 18-3-108. § 18-3-103(3)(b), 6 C.R.S. (2008); People v. Ramirez, 56 P.3d 89, 94 (Colo.2002).

The current second-degree murder statute provides that:

(1) A person commits the crime of murder in the second degree if the person knowingly causes the death of a person.
(3)(a) Except as otherwise provided in paragraph (b) of this subsection (8), murder in the second degree is a class 2 felony. (b) Notwithstanding the provisions of paragraph (a) of this subsection (8), murder in the second degree is a class 8 felony where the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person; but, if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the killing is a class 2 felony.

§ 18-3-103. If found by the jury, the miti-gator reduces a conviction for second-degree murder from a class 2 to a class 3 felony. § 18-3-108(8)(b). This reduces the presumptive sentencing range from eight to twenty-four years to four to twelve years. § 18-1.3-401, 6 C.R.S. (20083).

A provocation instruction is warranted whenever a defendant shows some supporting evidence-regardless of how incredible, unreasonable, improbable, or slight it may be-to establish each factor described in subsection (8)(b) of the second-degree murder statute. Mata-Medina, 71 P.3d at 979; People v. Garcia, 826 P.2d 1259, 1262 (Colo.1992). Specifically, the defendant must produce evidence in support of the second-degree murder mitigator showing that: (1) the act causing the death was performed upon a sudden heat of passion; (2) caused by a serious and highly provoking act of the intended victim; (8) which was sufficient to excite an irresistible passion in a reasonable person; and (4) between the provocation and the killing, an insufficient interval of time passed for the voice of reason and humanity to be heard. § 18-3-103(8)(b).

When the jury is instructed on the mitigator, the prosecution bears the burden of disproving the mitigating factors beyond a reasonable doubt. People v. Sepulveda, 65 P.3d 1002, 1007 (Colo.2003). The jury will be asked to complete a special verdict form that indicates its finding as to the presence or absence of the mitigating cireumstances. Robert J. Dieter, Colorado Criminal Practice and Procedure § 18.163 (1996 Supp.2008).

It is the function of the jury, not the trial court, to weigh and consider the evidence to determine which grade of criminal homicide, if any, the defendant committed. Mata-Medina, 71 P.3d at 979 (quoting Read, 119 Colo. at 509, 205 P.2d at 2835). Therefore, unless there is an absence of evidence in support of the mitigating factors, the trial court's failure to instruct the jury on provocation is error. Id. (quoting Read, 119 Colo. at 509, 205 P.2d at 235); People v. Shaw, 646 P.2d 375, 379 (Colo.1982) (quoting Crawford, 12 Colo. at 292, 20 P. at 770).

3. No-Duty to Retreat

Defendants are entitled to raise the affirmative defense of self-defense to justify the use of physical force-including deadly force-whenever the record contains any eredible evidence tending to establish the defense. § 18-1-407(1); Idrogo v. People, 818 P.2d 752, 754 (Colo.1991). The trial court must tailor the self-defense instructions to the particular cireumstances of the case in order to adequately apprise the jury of the law of self-defense from the standpoint of the defendant. Garcia, 28 P.3d at 347. In cases where the jury could reasonably conclude that the defendant had a duty to retreat before using force in self-defense, the defendant may be entitled to a self-defense instruction tailored to address the issue of retreat. See id. at 348.

Colorado follows the doctrine of no-retreat, which permits non-aggressors who are otherwise entitled to use physical force in self-defense to do so without first retreating, or seeking safety by means of escape. People v. Toler, 9 P.3d 341, 350-51 (Colo.2000). In Colorado, only initial aggressors must retreat before using force in self-defense. Id. at 351. A defendant is entitled to a jury instruction on the doctrine of no-retreat when the facts of the case raise the issue of retreat and the evidence supports a jury finding that the defendant was not the initial aggressor. Garcia, 28 P.3d at 348; Toler, 9 P.3d at 352.

A trial court's failure to instruct the jury on the doctrine of no-retreat in cases where the defendant was not the initial aggressor creates a risk that the jury will not acquit the defendant because it will consider the defendant's use of force unreasonable in light of the possibility of retreat. Toler, 9 P.3d at 352. Moreover, a standard self-defense instruction does not adequately apprise the jury that a defendant who is not the initial aggressor does not need to retreat before using force in self-defense. Idrogo, 818 P.2d at 756. When a trial court objects to the wording of an instruction that a defendant requests and is entitled to, the court commits error by failing to ensure that the jury in a criminal case receives a proper alternative instruction that correctly sets forth the applicable rule. Id. at 757.

B. The Defense Requested Instructions Should Have Been Given and the Errors Require Reversal of Cassels' Conviction

Cassels presented sufficient evidence at trial to support his requested instructions on provocation and the doctrine of no-retreat. The trial court erred by refusing to give his requested instructions or tailor them appropriately. The trial court's errors require Cassels' conviction to be reversed.

1. Provocation Instruction

Cassels presented evidence to support each statutory factor of the second-degree murder mitigator. First, on the night of the shooting, Cassels told a detective that "he just lost it" and was so angry that he just "freaked out." The prosecution concedes that this evidence sufficiently supports Cassels' claim that he shot Morris upon a sudden heat of passion.

Second, Cassels presented evidence to support that his actions were caused by a serious and highly provoking act sufficient to excite an irresistible passion in a reasonable person. Cassels testified that Morris followed him around the apartment, pushing and shoving him and threatening to beat him severely enough to require hospitalization. Moreover, Morris positioned himself in front of the only exit from the apartment and next to an iron bar that he previously said would make a good weapon. Morris insulted Cas-sels repeatedly, calling him a mooch, a lowlife seum, and a loser, among other things. Cassels was naked during the entire incident, with only a towel wrapped around his body. He was therefore in a highly vulnerable position. Toxicology tests conducted after the shooting showed that Morris was highly drunk on the evening of the shooting, which supports Cassels' claim that Morris was acting like a wild man. Taken together, this evidence is sufficient to allow the jury to determine whether Morris' actions amounted to an adequate provocation.

Third, there is evidence that supports Cas-sels' claim that between the provocation and the shooting, an insufficient interval of time passed for the voice of reason and humanity to be heard. Cassels testified that only see-onds lapsed between the initial provoking act and the time of the shooting. In addition, Cassels retrieved the gun from within the small apartment and therefore only traveled a small distance before opening fire on Morris. And, Morris' body was still positioned in front of the exit and adjacent to the fron bar after the shooting. This tends to show that the shooting took place during the course of the incident and before Cassels had time to regain self-control. This evidence is sufficient to allow the jury to consider whether Cassels had "cooled-off" at the time of the shooting.

Considering the evidence in the light most favorable to Cassels, Mata-Medina, 71 P.3d at 979, we conclude that he presented sufficient evidence in support of each factor of the mitigator. See Rowe v. People, 856 P.2d 486, 492 (Colo.1993) (holding that defendant was entitled to raise the issue of provocation as a sentence mitigator, and to receive a jury instruction on heat of passion, where defendant was charged with first-degree assault for shooting the victim through a locked door in response to obscenities and pounding on the door). Therefore, the trial court erred by refusing to instruct the jury on provocation. Mata-Medina, 71 P.3d at 979 (quoting Read, 119 Colo. at 509, 205 P.2d at 235).

2. No-Duty to Retreat Instruction

The trial court refused to instruct the jury on the doctrine of no-retreat because it misconstrued the law, and not because the instruction was unwarranted by the facts of the case. First, the trial court concluded that an instruction on retreat is only appropriate when the defendant is the initial aggressor. Second, the trial court determined that the standard self-defense instruction was sufficient, and that therefore, giving an additional instruction on retreat would be redundant. Third, the trial court considered the instruction, as tendered, to be inappropriate.

-The trial court's reasons for refusing to instruct the jury on the doctrine of no-retreat contravene our precedent. We have specifically held that the standard self-defense instruction, like the one given in this case, does not adequately apprise the jury that a defendant who is not the initial aggressor does not need to retreat before using force in self-defense. Idrogo, 818 P.2d at 756. We have also specifically held that the trial court must tailor the self-defense instruction in light of the particular facts of the case. Garcia, 28 P.3d at 347. And, we have held that the trial court should not refuse to give an instruction because of the particular wording the defendant selected. Idrogo, 818 P.2d at 757.

Moreover, the facts of this case support giving a no-retreat instruction. It is undisputed that Cassels was not the initial aggressor. Despite the conclusion of the trial court and court of appeals in this case, it is precisely in this cireumstance that a defendant is entitled to an instruction on the doctrine of no-retreat. See Toler, 9 P.3d at 350-51. In addition, the trial court imposed an aggravated sentence based, in part, on its finding that Cassels could have ran out the door, or, when he went to his room to retrieve the gun, he could have shut the door, put on clothes, and barricaded himself in his room. The trial court's findings show that a reasonable jury could have similarly concluded that Cassels had an opportunity to escape the situation but chose not to.

Lastly, the prosecution characterized the events leading up to the shooting in a way that could influence a reasonable jury to infer that Cassels could have escaped the situation, but chose to engage in violence instead. In arguing that Cassels acted in deliberation and was therefore guilty of first-degree murder, the prosecution told the jury that Cassels made a "conscious decision" to retrieve his gun and a "conscious decision" to return to the living room with the gun. The prosecution also told the jury that Morris did not follow Cassels into his room. This suggested to the jury that Cassels could have sought safety from Morris in his bedroom rather than defending himself.

After reviewing the record in the light most favorable to Cassels, Mata-Medina, 71 P.3d at 979, we conclude that the facts of the case support an instruction on the doctrine of no-retreat; therefore, the trial court erred in refusing to give the instruction. We must now determine whether the trial court's error was harmless. When the trial court errs in refusing a defense-requested self-defense instruction that is justified by the evidence, we reverse the conviction and remand for a new trial unless the error does not affect substantial rights of the defendant and is therefore harmless. Garcia, 28 P.3d at 344, 348. We conduct our inquiry in light of the entire trial record to ascertain whether it can be said with fair assurance that the error did not substantially influence the verdict or impair the fairness of the trial. Cordova v. People, 817 P.2d 66, 74 (Colo.1991).

The trial court found that the jury should consider the question of whether Cassels' use of force against Morris was justified and therefore ruled that Cassels was entitled to a self-defense instruction. The facts of this case raised the issue of retreat. Even the trial court concluded that Cassels could have escaped from the danger of the incident but chose not to. However, the trial court failed to tailor Cassels' self-defense instruction to address the issue of retreat. Garcia, 28 P.3d at 347.

Thus, although Cassels received a self-defense instruction, the jury could have inferred that Cassels was not entitled to an acquittal on grounds that he should have retreated or otherwise attempted to escape the situation. In light of the entire trial record, we cannot conclude with fair assurance that the trial court's failure to properly instruct the jury on the applicable law of self-defense did not deprive Cassels of the right to an acquittal on the ground of self-defense. Cordova, 817 P.2d at 74; Idrogo, 818 P.2d at 756.

We conclude that the instruction error regarding the doctrine of no-retreat was not harmless because there is a reasonable probability that the error contributed to Cassels' conviction.

IIL

Accordingly, we reverse the judgment of the court of appeals, set aside Casgelg' conviction for second-degree murder, and remand the case for further proceedings consistent with this opinion.

Justice COATS dissents, and Justice KOURLIS joins in the dissent.

Justice COATS,

dissenting:

The majority reverses the defendant's conviction of second degree murder both because the jury was not given a chanee to decide whether he was provoked beyond reason by the victim, and because the jury was not instructed that he was permitted to shoot the victim rather than retreat. Even the defendant conceded that after being confronted by the unarmed and extremely drunken victim, in whose apartment he was temporarily staying and who at worst reviled, threatened, and shoved him, he retrieved his loaded, Oram automatic handgun from the bedroom and shot the victim nine times. Because I do not believe there was any evidence whatsoever from which reasonable jurors could find the killing to be justifiable, or even to be explainable as the result of an irresistible passion provoked by the victim, I respectfully dissent.

Because the defendant called 911 almost immediately after emptying his Imm automatic into his apartment mate, the police were able to physically substantiate that he shot the victim nine times-five time in the back-in his living room; there was no evidence that the victim had been armed; and when the victim's body was tested, it still had a blood-alcohol content nearly five times the legal limit for driving. No one else was present at the time of the homicide and the victim was, of course, not available to testify. The majority's description of the confrontation between the victim and defendant, leading to the killing, comes solely therefore from the defendant's testimony, although it has never been found accurate or credible by any trier of fact. While I do not suggest that the defendant's testimony alone could never be sufficient to support instructions on self-defense and provocation, I find no support for either instruction in the defendant's account given under oath at trial.

With regard to self-defense, the defendant clearly used deadly force against the victim in shooting and killing him. By the defendant's own account, the victim was never armed with a gun, knife, bludgeon, or any other object that could be used as a weapon, and at no time did he either attempt to or threaten to arm himself. At most, the defendant's testimony indicated that he (rather than the victim) noticed (during the early part of their confrontation rather than after returning with the loaded gun) the presence, in the room, of an iron bar, which the defendant recalled the victim observing (at some unspecified time in the past) could be used as a weapon.

As conceivably applicable to the cireum-stances of this case, a person is entitled to defend himself with deadly physical force only when he has reasonable grounds to believe that he is in imminent danger of being killed or receiving great bodily injury. See § 18-1-704(2)(a), 6 C.R.S. (2008). Even according to his own account, the defendant did not retrieve his gun and shoot the victim because he believed himself to be in imminent danger of being killed or severely injured but rather because he wanted to frighten the victim into calming down and letting him leave the apartment. And even if the defendant subjectively believed himself to be in imminent danger of serious injury, in light of his own testimony, such a belief would not have been objectively reasonable. Without parsing the merits of a separate, "no retreat" instruction under these cireumstances, I would therefore find that the defendant was not entitled to an instruction on self-defense at all.

I would find that the jury was similarly prohibited, by the defendant's own testimony, from considering the question of irresistible passion, or legally cognizable provocation. In this jurisdiction, second degree murder is merely a class three (rather than a class two) felony if the defendant is actually moved by a serious and highly provoking act of the vie-tim and kills him too quickly for the voice of reason and humanity to be heard, and if the highly provoking act of the victim also would have excited an irresistible passion in a reasonable person. See § 18-3-103(b), 6 C.R.S. (2003). The defendant never testified that he was provoked beyond his capacity to resist, but rather that despite being angry, he retrieved his gun from the bedroom with the intent of frightening rather than shooting the victim. On the stand, he could not recall even killing the victim, much less the reasons why he did so. While the defendant's testimony may have supported a claim that he lacked the culpable mental state required for conviction of murder, or perhaps that his automaton-ike state prevented him from committing any voluntary act at all, it most certainly did not support a claim that he intentionally killed the victim upon a sudden and irresistible heat of passion.

Perhaps more importantly, however, there was absolutely no evidence at trial from which the jury could have found any conduct by the victim that the law is prepared to recognize as exciting an irresistible passion in an objectively reasonable person. It has long been accepted that mere words, at least words that revile, disparage, or insult, rather than words that communicate information, can never rise to the level of legal provocation. See United States v. Frady, 456 U.S. 152, 174, 102 S.Ct. 1584, 71 LEd.2d 816 (1982)("Mere words, however, no matter how insulting, offensive or abusive, are not adequate to induce a homicide although committed in passion, provoked, as I have explained, from murder to manslaughter.")(internal quotations omitted). 'Although threats, when combined with the present ability to carry them out, may permit certain responses in self-defense, they are not, in themselves, highly provoking. See id. ("In addition to the great provocation, there must be passion and hot blood caused by that provocation."); see also, State v. Bonano, 59 N.J. 515, 284 A.2d 345, 350 (1971)(verbal threat not sufficient to reduce homicide to manslaughter). Even when combined with conduct that may amount to a technical or minor assault or battery, insults or threats are generally held, for obvious reasons, not to be provocation sufficient to mitigate murder to what was formerly called manslaughter. See, e.9., People v. Chevalier, 131 Ill.2d 66, 136 Ill.Dec. 167, 544 N.E.2d 942, 944 (1989)("serious provocation includes substantial physical injury or assault, mutual quarrel or combat -.."); State v. Guebara, 286 Kan. 791, 696 P.2d 381, 386 (1985)(mere words or gestures are not enough, and if assault or battery is involved, the defendant must have a reasonable belief that he or she is in danger of suffering great bodily harm or at the risk of death); State v. Bealer, 2003 WL 1956089, *5 (Ohio Ct.App.2003)(court held that defendant's statement that victim hit him, shoved him and slapped him, was not serious provocation which would reasonably incite a person to use deadly force); State v. Salmon, 140 N.C.App. 567, 537 S.E.2d 829, 833-34 (2000)("victim's statement to the defendant that the victim would have sex with defendant's sister and the victim's shoving of the defendant were not an assault or threatened assault to amount to legal provocation").

Taken as completely true and accurate, the defendant's testimony was that the victim never struck him any blow or caused him any physical pain or injury from which he was still smarting at the time of the killing. As a matter of law, I would find that neither the words nor the shoving described by the defendant were sufficient to provoke the sudden and irresistible passion contemplated by the General Assembly. While a defendant may not be legally barred from submitting alternate and inconsistent theories to a jury, he is not entitled to have the jury instructed in a manner that is inconsistent with his own testimony. See People v. Garcia, 826 P.2d 1259, 1263 (Colo.1992).

Because I believe the majority rationale departs from long-established principles of self-defense and provocation, and because I do not believe the statutory scheme contemplates that courts allow juries the option of finding either under the cireumstances of this case, I respectfully dissent.

I am authorized to state that Justice KOURLIS joins in the dissent.

      . We granted certiorari on the following issues:
      1. Whether the petitioner's right to due process of law and trial by jury were violated when the trial court refused, over defense objection, to instruct the jury on the elements of provocation and heat of passion.
      2. Whether the trial court committed reversible error and violated the petitioner's right to due process of law by refusing the petitioner's tendered instruction informing the jury that, where he is not the initial aggressor, a defendant is under no duty to retreat to a position of no escape before he may act in self-defense.

      . Section 16-11-309 was relocated to section 18-1.3-406 effective October 1, 2002.

      . Cassels requested that the trial court give two instructions on provocation. The first was a special interrogatory to be included with the elemental jury instruction on second-degree murder:
      If you conclude that Mr. Cassels committed second-degree murder, then you must determine whether the act was committed
      1. under circumstances where the act causing death was performed under a sudden heat of passion,
      2. which was caused by a serious and highly provoking act of the intended victim,
      3. affecting the defendant sufficiently to excite an irresistible passion in a reasonable person,
      4. and there was no interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard.
      5. without the affirmative defense in instruction number .
      If you find that Mr. Cassels has committed second-degree murder, in order to reject the circumstances listed above, the People must establish, beyond a reasonable doubt, that Mr. Cassels did not act under the above-listed circumstances involving a provoking act and a heat of passion.
      The second instruction was substantively the same, but was formatted as a general instruction rather than a special interrogatory. It instructed the jury to consider the issue of provocation if it found Cassels guilty of second-degree murder and informed the jury of each element of the provocation miligator and of the prosecution's burden to disprove each element beyond a reasonable doubt.

      . Cassels requested the following instruction:
      Where the defendant is the initial aggressor he must, in order to rely on self-defense, have withdrawn from the affray and have communicated the desire to withdraw to his opponent. However, if the defendant was not the initial aggressor, and was where he had a right to be, he was not required to retreat to a position of no escape in order to claim the right to employ force in his own defense.

      . The terms "heat of passion" and "provocation" are used interchangeably in our previous cases in referring to the mitigator instruction. For purposes of consistency, we choose to use the term provocation instruction throughout this opinion.


author: Justice KOURLIS Justice COATS,

text:
    Noah TAYLOR, as personal representative of the Estate of Terrell Taylor, Petitioner v. Lucy I. CANTERBURY, Respondent.
    No. 03SC294.
    Supreme Court of Colorado, En Banc.
    June 28, 2004.

      Frederickson & Johnson, P.C., Bryan T. Fredrickson, Canon City, Colorado, Attorneys for Petitioner.
    Dufford & Brown, P.C., Joanne Herlihy, Denver, Colorado, Attorneys for Respondent.
    Montgomery Little & McGrew, P.C., Frederick B. Skillern, for Amicus Curiae for the Real Estate Law Section of the Colorado Bar Association.
   Justice KOURLIS

delivered the Opinion of the Court.

I. INTRODUCTION

The question we address in this case is whether one joint tenant may extinguish a joint tenancy by conveying his interest in real property back to himself as a tenant in common. In the past, courts did not honor such transactions because of two premises: one, that someone could not be both a grant- or and a grantee in the same real property transaction; and two, that in order to extinguish a joint tenancy, a joint tenant had to destroy one of the "four unities" of time, title, interest, or possession.

What is not at issue in this opinion is whether a joint tenant may destroy a joint tenancy without the consent of the other joint tenant or tenants. It is indisputable under Colorado law that one joint tenant may unilaterally dissolve the survivorship interest by creating a tenancy in common in lieu of a joint tenancy. However, for a joint tenant to sever the joint tenancy yet remain an owner of the property, courts required the use of a "strawman" transaction whereby the joint tenant executed a deed to a third person, and then a deed back from that third person to the joint tenant-this time as a tenant in common. By transferring legal title to the property held in joint tenancy to a third party, the transferor destroyed the unities of time and title and severed the joint tenancy.

We conclude that this cireuitous process is no longer required under Colorado law because the two premises undergirding it are no longer valid. In Colorado and other jurisdictions around the country, joint tenancy law has evolved. The four unities are no longer the compass; rather, the polestar by which joint tenancies are now measured is the intent of the parties. For this reason, we have recognized in recent cases that acts inconsistent with the right of survivorship operate to sever the joint tenancy. Similarly, by operation of statute, the notion that a property owner may not be both the grantor and grantee in the same transaction has evaporated. Currently, the owner of real property may create a joint tenancy by conveying real property back to himself and one or more persons as joint tenants. Hence, the common law notions that onee drove the jurisprudence of joint tenancy are gone. In their place are principles that focus on the intent of the property owners.

Therefore, we find no common law or legislative support for preventing a landowner from doing directly what he can do indirectly. We hold that a joint tenant who unilaterally conveys his interest in real property back to himself, with the intent of creating a tenancy in common, effectively severs the joint tenancy as to that joint tenant and the remaining joint tenant or tenants. We reverse the court of appeals and remand the case for further proceedings consistent with this opinion.

II. FACTS AND PROCEDURAL HISTORY

Terrell Taylor (Taylor) was the owner in fee simple of a 666-acre ranch in Fremont County, Colorado. The Petitioner, Noah Taylor, is the personal representative for Taylor, now deceased. On March 4, 1991, Taylor executed a warranty deed that conveyed that property from Taylor as sole owner to Taylor and Lucy I. Canterbury (Canterbury) as joint tenants. The validity of that deed is not in dispute.

In 1997, Taylor executed a second deed: this time a quitclaim deed purporting to transfer the property back to himself and Canterbury as tenants in common. Taylor's manifest intent to sever the joint tenancy between himself and Canterbury, and to ere-ate a tenancy in common, could not have been clearer. The second deed stated: "It is my intention by this deed to sever the joint tenancy created by [the 1991 deed], and to create a tenancy in common." The deed was duly recorded on June 16, 1997-the same day it was executed. Taylor died on August 20, 1999.

Canterbury filed an action to quiet title to the property to herself as surviving joint tenant. In that complaint, she also asked the trial court to set aside the 1997 conveyance and award her damages arising out of Taylor's attempted conveyance. Following a bench trial, the trial court found that "as a matter of law, the right of survivorship interest of a joint tenant is an estate in land which vests on the creation of the joint tenancy." Relying on our decision in Lee's Estate v. Graber, 170 Colo. 419, 462 P.2d 492 (1969), the court concluded "that the rights of a joint tenant or joint tenants are vested and fixed at the time of the creation of the joint tenancy" and therefore the 1997 deed failed to effectively sever the joint tenancy between Canterbury and Taylor. On that basis, the court determined that "all interests which Taylor owned ... at the time of his death passed to [Canterbury] pursuant to the 1991 deed."

The court of appeals affirmed the trial court's judgment in Canterbury v. Taylor, 74 P.3d 457 (Colo.App.2003), holding that a joint tenant cannot effectively sever a joint tenancy by executing a deed which purports to convey title back to the two individuals as tenants in common. Id. at 459. Like the trial court, the court of appeals also relied on our decision in Graber to conclude that onee a joint tenancy is created, the rights of each joint tenant are "fixed and vested." Id. Thus, the court concluded that Taylor's unilateral effort to sever the joint tenancy was an improper "form of dominion" over Canterbury's rights to the property. Id. The court also noted that Taylor's conveyance to himself was contrary to the general rule that a grantor and grantee cannot be the same person for purposes of conveying property. Id.

We granted certiorari to address the issue of whether it is "permissible for a joint owner of real estate to sever the joint tenaney by unilaterally conveying his interest in the property back to himself to create a tenancy in common with the other joint tenant." We answer that question in the affirmative. Therefore, we reverse the court of appeals and remand this case for further proceedings consistent with this opinion.

III. ANALYSIS

This case presents an issue of first impression in Colorado: whether the holder of an interest in joint tenancy may unilaterally sever that joint tenancy by conveying property back to himself as a tenant in common. We begin our analysis. by discussing the basic characteristics of the two forms of concurrent ownership implicated in this case: tenancies in common and joint tenancies. Next, we analyze the law regarding the termination of joint tenancies in Colorado. Finally, we examine the specific subject of the validity of the transaction at issue in this case and conclude that, in light of the evolution of joint tenancy law in Colorado and other jurisdictions throughout the country, the common law principles that once supported the prohibition against a unilateral self-conveyance no longer have vitality.

A. Tenancy in Common and Joint Tenancy

A tenancy in common is a form of ownership in which each co-tenant owns a separate fractional share of undivided property. United States v. Craft, 535 U.S. 274, 279-80, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002) (citing to 7 R. Powell & P. Rohan, Real Property § 50.01[1] (M. Wolf ed.2001) (hereinafter Powell)). All co-tenants share a single right to possession of the entire interest. 7 Powell, supra, § 50.01[1]. Each co-tenant also possesses the right to: unilaterally alienate his or her interest through sale, gift or encumbrance; to exclude third parties from the property; and to receive a portion of any income derived from the property. Craft, 535 U.S. at 280, 122 S.Ct. 1414.

Conversely, joint tenancy is a form of ownership in which each joint tenant possesses the entire estate, rather than a fractional share. Id. Upon the death of one joint tenant, the remaining joint tenant or tenants automatically inherit that tenant's share in the property. Id. ("Upon the death of one joint tenant, that tenant's share in the property does not pass through will or the rules of intestate succession; rather, the remaining tenant or tenants automatically inherit it."). This feature, called the "right of survivor-ship," is the principal distinction between a joint tenancy and a tenancy in common. Bradley v. Mann, 34 Colo.App. 135, 525 P.2d 492, 493 (1974) ("Upon the death of one of the co-tenants in joint tenancy, the entire undivided interest of the deceased passes, by operation of law, to the surviving co-tenant.").

At common law, joint tenancies were the favored form of concurrent ownership of real property. Smith v. Greenburg, 121 Colo. 417, 218 P.2d 514, 519 (1950). If property was conveyed to two or more persons, the law presumed that a joint tenancy was intended. 4 David A. Thomas, Thompson on Real Property $ 31.06(a) (David A. Thomas ed.1994) (hereinafter Thompson). For purposes of establishing a joint tenancy, the "four unities" of time, title, interest, and possession were essential components. 7 Powell, supra, § 51.01[2] (citing to 2 Blackstone, Commentaries 180); see also Tabor v. Sullivan, 12 Colo. 136, 20 P. 487, 441 (1889) (Elliott, J., concurring) (noting that joint tenancies require the four unities of time, title, interest, and possession). This requirement meant that to create a joint tenancy, "a conveyance had to convey to two or more persons at the same time the same title to the same interest with the same right of possession." 7 Powell, supra, § 51.01[2]. If one of the four unities ceased to exist, a tenancy in common remained. Riddle v. Harmon, 102 Cal.App.3d 524, 162 Cal.Rptr. 530, 531 (1980).

Today, in Colorado, joint tenancies are no longer the presumptive form of concurrent ownership of real property. (Greenburg, 218 P.2d at 519. Rather, tenancies in common are favored and the very existence of the joint tenancy is circumscribed by statute. Id. Courts strictly construe instruments purporting to create a joint tenancy and do not recognize joint tenancies created by instruments that lack statutorily prescribed language. In re Kwatkowski's Estate, 94 Colo. 222, 29 P.2d 639, 640 (1934).

The requirements for establishing a joint tenancy in real property are set forth in section 88-31-101(1), 10 C.R.S. (2008). That provision states:

No estate in joint tenancy in real property, exeept when conveyed or devised to executors, trustees, or fiduciaries, shall be created or established unless, in the instrument conveying the property or in the will devising the same, it is declared that the property is conveyed or devised in joint tenancy or as joint tenants. The abbreviation "JTWROS" and the phrase "as joint tenants with right of survivorship" or "in joint tenancy with right of survivorship" shall have the same meaning. Any grantor in any such instrument of conveyance may also be one of the grantees therein.

Thus, to establish a joint tenancy in Colorado, there must only be specific language evidencing the intent to create a joint tenancy. The four unities have been abolished by statute.

B. Termination of Joint Tenancies

We turn to the question of how a joint tenancy may be terminated. In that inquiry, we pause to address the notion that the interests associated with the ownership of real property held in joint tenancy are fixed and vested. That principle comes most recently from our decision in Lee's Estate v. Graber where we addressed the issue of whether "the gift of a joint interest in real estate held jointly with the donor is complete and irrevocable." 462 P.2d at 498. Answer ing that question affirmatively, we held that "[iln the case of real property, rights under a joint tenancy are fixed and vested in the joint tenants at the time of the creation of the joint tenancy." Id. at 494. As a result, once a donor creates a joint tenancy, he or she may not convey or otherwise interfere with the property interests vested in the other joint tenant by virtue of the conveyance. Id.; see also First Nat'l Bank of Southglenn v. Energy Fuels Corp., 200 Colo. 540, 618 P.2d 1115, 1118 (1980) ("A joint tenant cannot alienate, encumber, or transfer the interest of other joint tenants without their consent."). What Graber restates is the axiom that onee a joint tenancy is created, each joint tenant owns a vested interest in the property, which cannot be extinguished or alienated without that particular tenant's consent.

Graber does not hold that the right of survivorship itself is irrevocable or "fixed and vested" and cannot be eliminated without the consent of the other joint tenant or tenants. Indeed, such a holding would fly in the face of years of precedent to the contrary. Even characterizing survivorship as a "right" is somewhat misleading. Rather, survivor-ship is

an expectancy that is not irrevocably fixed upon the creation of the estate; it arises only upon success in the ultimate gamble-survival-and then only if the unity of the estate has not theretofore been destroyed by voluntary conveyance, by partition proceedings, by involuntary alienation under an execution, or by any other action which operates to sever the joint tenancy.

Tenhet v. Boswell, 18 Cal.3d 150, 133 Cal.Rptr. 10, 554 P.2d 330, 334 (1976) (internal citations omitted). Thus, in order for an expectancy of a survivorship interest to become a vested right, one joint tenant must survive the death of another joint tenant during the period of time that the joint tenancy remains intact.

Hence, the right of survivorship is not fixed in such a way as to constrain a joint tenant from changing his mind and abrogating it. Rather, a joint tenant may unilaterally eliminate the survivorship element of the ownership rights, and by doing so, eliminate his own survivorship rights as well. Stated otherwise, a joint tenant has the absolute right to terminate a joint tenancy unilaterally. Carmack v. Place, 188 Colo. 303, 535 P.2d 197, 198 (1975); see also 7 Powell, supra, § 51.04[1].

In this case, therefore, we are not dealing with whether a joint tenant may sever the tenancy and create a tenancy in common; we are dealing with the question of how that can be accomplished. Historically, whether the severance of a joint tenancy was effective turned on the question of whether the act was sufficient to destroy any of the four unities. Bradley, 525 P.2d at 493. Thus, conveying the property to a third party, transferring legal title into a trust, executing a lien, or foreclosing on a mortgage, were all considered to be effective means of severing a joint tenancy. We also specifically recognized the antiquated convention whereby the joint tenant wishing to terminate a joint tenancy would convey the property to a strawman who would in turn reconvey the property back to the former joint tenant as a tenant in common. Alden v. Alden, 155 Colo. 51, 393 P.2d 5, 6 (1964). The rationale underlying all of these transactions was that because legal title was transferred, the unities of time and title were destroyed, and therefore the joint tenancy, and the survivor-ship interest associated with it, were destroyed as well.

Along these same lines, mortgages, leas and other encumbrances that did not involve the transfer of legal title were considered insufficient to sever a joint tenancy. Again, the underlying rationale was that because the grantor had not transferred title to the real property, the unities remained intact and the transaction did not sever the joint tenancy.

In stark contrast to traditional common law, "[the modern tendency is to not require that the act of the co-tenant be destructive of one of the essential four unities of time, title, possession or interest before a joint tenancy is terminated." Mann v. Bradley, 188 Colo. 392, 535 P.2d 213, 214 (1975). In Mann, we recognized that a joint tenancy may be terminated by mere agreement between the joint tenants, despite the fact that no property is conveyed or interests alienated. Id. Thus, in determining whether a joint tenancy has been created or severed, we look not to the four unities, but rather to the intent of the parties. Id. at 214-15; see also Mangus v. Miller, 35 Colo.App. 115, 532 P.2d 368, 369 (1974). Actions that are inconsistent with the right of survivorship may terminate a joint tenancy. Mann, 535 P.2d at 214-15.

C. Unilateral Self-Conveyance

As we have noted, historically, a joint tenant wishing to sever the joint tenancy used a strawman transaction. That method satisfied the common law proscription that "a conveyance to oneself has no legal consequence and therefore does not destroy any unities." Thompson, supra, § $1.08(b). This "two-to-transfer" artifice stemmed from the English common law feoffment ceremony with livery of seisin. Riddle, 162 Cal.Rptr. at 583. Under the livery of seisgin, the grant- or of property had to transfer a physical remnant of the land (such as a lump of dirt or a twig) to the grantee. Therefore, the grantor could not be both grantor and grantee simultaneously.

In light of the changes to joint tenancy law in Colorado, the justifications for prohibiting unilateral self-conveyances no longer exist. For example, section 38-81-101 expressly allows the owner of property to become both the grantor and the grantee for purposes of establishing a joint tenancy. This concept directly conflicts with the four unities doe-trine and the notion that one could not be a grantor and a grantee. Further, the livery of seisin requirement has been explicitly abolished in Colorado. § 88-80-1083, 10 C.R.S. (2003). In short, none of the underpinnings that led to the artifice of a third-party transfer to sever a joint tenancy have continuing vitality.

Other jurisdictions have similarly conelud-ed that it no longer makes sense to prohibit joint tenants from doing directly what they are already able to do indirectly through a strawman transaction. For instance, in Hendrickson v. Minneapolis Fed. Sav. & Loan Ass'n, 281 Minn. 462, 161 N.W.2d 688 (1968), the Supreme Court of Minnesota rejected the strawman requirement. The court in that case recognized the validity of a "Declaration of Election to Sever Survivorship of Joint Tenancy" by one joint tenant for purposes of severing the joint tenancy. Id. at 689.

Similarly, California has rejected the strawman requirement. Riddle 162 Cal.Rptr. at 534. In that case, the court addressed a unilateral self-conveyance like the one at issue here. There, the court relied heavily on the fact that California, like Colorado, allowed for the creation of a joint tenancy by a self-conveyance. Id. at 582. In deciding that the grantor need not make use of a strawman to sever the joint tenancy, the court stated that "[in view of the rituals that are available to unilaterally terminate a joint tenancy, there is little virtue in steadfastly adhering to cumbersome feudal law requirements." Id. at 584. : Quoting Justice Holmes, the court went on to state that

[ilt is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

Id.

Since Harmon, other states addressing this issue have followed suit. See Minonk State Bank v. Grassman, 95 Ill.2d 392, 69 Ill.Dec. 387, 447 N.E.2d 822, 825 (1983) (holding that conveyance of a joint tenant's property back to herself effectively severed the joint tenancy); In re Estate of Knickerbocker, 912 P.2d 969, 976 (Utah 1996) (holding that a joint tenant may effectively sever a joint tenancy by executing and recording a unilateral self-conveyance).

The exception is Nebraska. In Krause v. Crossley, 202 Neb. 806, 277 N.W.2d 242, 246 (1979), the Supreme Court of Nebraska disallowed the severance of a joint tenancy by a joint tenant who attempted to reconvey property to himself as tenant in common. That court specifically relied upon the notion that in order for title of property to transfer, the grantor and grantee had to be separate individuals. Id.

We conclude, in light of Colorado's statutory and precedential approach to joint tenancy, that a joint tenant may sever a joint tenancy by conveying the property to himself or herself as a tenant in common, without the need for an intermediary strawman. The statute, which permits the grantor and grant-: ee to be one and the same, and which bypasses the four unities, does not preclude such a termination of the joint tenancy. The underlying premises that gave rise to the fiction of the strawman transaction in the first place have disappeared in the law of real property; and the law does not require a futile act. See generally Danielson v. Zoning Bd. of Adjustment, 807 P.2d 541, 543 n. 4 (Colo.1990). The strawman transaction does not protect the other joint tenant to any greater degree than the direct transfer, and, we repeat, the overriding consideration is that the survivor-ship interest is not vested.

IV. CONCLUSION

We reverse the court of appeals and thus the trial court's conclusion that the deed from Taylor to Taylor as a tenant in common was not valid for purposes of severing the joint tenancy. Rather, we conclude that Taylor had the right to sever the joint tenancy by means of a conveyance to himself. Taylor retained an undivided one-half interest in the property as a tenant in common at the time of his death in 1999. We return this case to the court of appeals for remand to the trial court for proceedings consistent with this opinion.

Jusﬁce COATS dissents.

Justice COATS,

dissenting.

Today the majority abrogates a limitation on the ability of a joint tenant to defeat his co-tenant's right of survivorship, which has been the law of this jurisdiction since before statehood. Following the lead of California, and a handful of other jurisdictions already doing so, the majority concludes, for the first time, that this venerable principle of property law-that a joint tenant may not unilaterally destroy the tenancy without alienating his own interest-no longer serves a useful purpose and has, in effect, already ceased to exist. Because I disagree with the majority's understanding of the current state of the law; its policy choice in derogation of the right of survivorship; and its decision to act in the face of existing (and I believe conflicting) legislation, I respectfully dissent.

The right of survivorship is an incident of, and in fact the defining incident of, a joint tenancy. See David A. Thomas, Thompson on Real Property, § 31.02 (David A. Thomas ed. 1981 & Supp.2008). To assert that it does not vest upon creation of the tenancy, as do all other incidents of joint tenancy, flies in the face of established law. See, eg., First Nat'l Bank of Southglenn v. Energy Fuels Corp., 200 Colo. 540, 618 P.2d 1115 (1980) ("Rights in real property held in joint tenancy are fixed and vested in the joint tenants at the time of the creation of the tenancy."); In re Estate of Lee v. Graber, 170 Colo. 419, 462 P.2d 492 (1969) (same); Smith v. Greenburg, 121 Colo. 417, 218 P.2d 514 (1950) (same). While the right of survivorship is not "irrevocably fixed," see Gwinn v. Comm'r of Internal Revenue, 287 U.S. 224, 53 S.Ct. 157, 77 L.Ed. 270 (1982), in the sense that a joint tenant will not actually acquire title to the co-tenant's indivisible share of the property unless the co-tenant dies first, and unless he does so while the joint tenancy remains intact, it has never been within the power of one joint tenant in this jurisdiction, until today, to sever the tenancy and defeat his co-tenant's right of survivorship by merely executing a conveyance of his own indivisible interest in the property to himself.

We have not previously recognized the ability of a joint tenant to unilaterally terminate a joint tenaney except by divesting himself of his joint interest in it. While nothing has prohibited a former joint tenant from reacquiring, as a tenant in common, the proportionate share he formerly held as a joint tenant, his initial conveyance of that interest to a third party terminates the joint tenancy, onee and for all. See Alden v. Alden, 155 Colo. 51, 393 P.2d 5 (1964). Although the majority derisively refers to a re-conveying third party as a "straw man," such a series of conveyances, regardless of any prior agreements or expectations of the parties, is in no sense a meaningless ritual or legal fiction.

To the contrary, until today, unless a joint tenant was actually divested of his interest in the property, whatever his hope or expectation concerning re-conveyance, the joint tenancy was not severed; and if the joint tenant retained an enforceable right of return, he had not been divested of his interest. As the majority acknowledges, this jurisdiction has never before found a severance to occur upon a mere encumbrance of property over which the tenant retained the right of repayment. See Webster v. Mauz, 702 P.2d 297 (Colo.App.1985) ("[MJere encumbering of one's own interest in joint tenancy is insufficient to sever...."); cf. Energy Fuels, 618 P.2d at 1119 (joint tenancy is severed by operation of law upon execution sale, after default on deed of trust). Because conveyance to a third party always involves some risk, I disagree that the requirement to actually alienate one's interest provides no more protection to a joint tenant than re-conveyance to oneself, or that it amounts to nothing more than a fiction. See maj. op. at 967-968. Ironically, it is the conveyance of property to oneself that has all the earmarks of a fictitious transaction.

Nor do I find support for the majority's assertion that joint tenancy law in Colorado has evolved to a point at which "the polestar by which joint tenancies are now measured is the intent of the parties." Maj. op. at 962. The "modern tendency" with regard to the termination of joint tenancies, to which the majority alludes, see maj. op. at 966, apparently does not refer to unilateral action at all but rather derives from prior decisions finding an effective termination by the agreement of both co-tenants. See Mann v. Bradley, 188 Colo. 392, 535 P.2d 213 (1975)(property settlement associated with divorce proceedings); Mangus v. Miller, 35 Colo.App. 115, 532 P.2d 368 (1974) (same). And while the legislature has sought to avoid the unintended ereation of rights of survivorship since before statehood, see 1861 Colo. Sess. Laws 66, it has never suggested the abrogation of existing restrictions on the termination of such rights. See § 38-88-101, 10 C.R.S. (2003).

To the extent that the majority's conclusion today is intended to represent an evolution of the common law, it ventures into a field long acknowledged to have been preempted by the legislature. See Smith v. Greemburg, 218 P.2d at 519 ("[Tlhe legislature has already pre-empted the field and declared the public policy with respect to the disposition of property held either in joint tenancy or descending under the statute of descent and distribution."). And to the extent that it intends its announcement today to rest on the construction of the statutes already regulating the area, I do not believe its conclusions are supported by accepted principles of statutory interpretation.

More than a half century ago, the general assembly modified the common law by abrogating the prohibition against creating a joint tenancy by the conveyance of a grantor, in part, to himself. See § 4, C40 C.R.S. (1985). Because the current statute, § 38-31-101, 10 C.R.S. (2008), on its face, merely provides an exception to existing limitations for creating a joint tenancy, the majority finds nothing in that statute that would conflict with extending that same exception to severing a joint tenancy. See maj. op. 968. The maxim at law, however, is to the contrary. By expressly articulating one, and only one, exception to the long-accepted rule of property law, the legislature would normally be understood to have rejected other unarticulated exceptions. See Beeghly v. Mack, 20 P.3d 610, 613 (Colo.2001) ("expressio unius exclu-sio alterius "). A rule of strict construction is especially true of property statutes in derogation of the common law. See A.L.H. Holding Co. v. Bank of Telluride, 18 P.3d 742, 745 (Colo.2000).

In context, it seems clear enough that the legislature intended to, and did, eliminate a hurdle to the creation of a right of survivor-ship, as long as the right was created deliberately and with an unchallengeable understanding of the consequences. Eliminating a similar hurdle to the termination of the right of survivorship could easily have been accomplished at the same time by the legislature, had it intended to do so. Doing so without the same evidentiary safeguards, as the majority does today, runs directly counter to the clear legislative purpose. In light of the clear and settled state of the law on this point, it is not surprising that the issue has not before been squarely presented to this court.

The majority looks to other states for support, but even by its count, a mere handful of states have abrogated the requirement that the interest of a joint tenant be conveyed to another in order for severance of the joint tenancy to occur. Tellingly, of the extreme minority-a mere half-dozen or so-Jurisdictions abrogating the requirement, either by case law or statute, virtually all include some recording requirement to ensure that notice is at least possible, and to limit abuses. Even if I considered the majority's policy choice to be sound, and even if I considered the court free to make that choice in light of existing legislation, I would nevertheless be reluctant to strike down well-established formalities without replacing them with other protections, as the legislature has done with regard to the creation of joint tenancies.

Because I believe the court's action in striking down a principle of property law accepted for scores, if not hundreds, of years and validated by our own legislature is neither wise nor the proper function of the judiciary, I respectfully dissent.

      . The facts in this case are undisputed and come to this court by stipulation of the parties.

      . We are aware that the ability of one joint tenant to sever the tenancy risks a circumstance where a joint tenant may terminate the survivor-ship right of other co-tenants while retaining his or her own. For example,
      [a) joint tenant may execute an undisclosed severance, deposit the severing instrument with a third person, and instruct the third person to produce the instrument if the severing joint tenant dies first so the severed half may pass to his or her heirs or devisees. However, if the other joint tenant dies first, the secret severing instrument may be destroyed so that the surviving joint tenant will take the other half of the property by survivorship, thereby becoming owner of the entire property.
      England v. Young, 233 Cal.App.3d 1, 284 Cal.Rptr. 361, 363 (1991); see also Samuel M. Fetters, An Invitation to Commit Fraud: Secret Destruction of Joint Tenant Survivorship Rights, 55 Fordham L.Rev. 173, 179 (1986). However, the possibility of such concealment exists even with the strawman requirement. We do note that after California abolished the strawman requirement in Riddle v. Harmon, 102 Cal.App.3d 524, 162 Cal.Rptr. 530, (1980), the California General Assembly took the opportunity to enact legislation to close this loophole. Specifically, California passed legislation requiring that all instruments purporting to unilaterally sever a joint tenancy be recorded for purposes of providing other joint tenants with constructive notice of the severance. See England, 284 Cal.Rptr. at 363-64; Cal. Civ.Code § 683.2 (West 2004). In the case before the court today, Taylor did record the severance deed, so we do not opine on whether the failure to do so would have made a difference.

      . See Carmack v. Place, 188 Colo. 303, 535 P.2d 197, 198 (1975) ("It is well established that an owner in joint tenancy is free to convey his undivided share of property so held, and that upon conveyance by one joint tenant to a third party, the latter becomes a tenant in common with the remaining joint tenant(s).").

      . See Reiss v. Reiss, 45 Cal.App.2d 740, 114 P.2d 718, 722 (1941) (holding that the transfer of legal title of property held in joint tenancy to a trust effectively severed the joint tenancy).

      . See First Nat'l Bank of Southglenn v. Energy Fuels Corp., 200 Colo. 540, 618 P.2d 1115, 1118 (1980) (holding that joint tenancy is severed when interest of joint tenant in real property is subject to execution and sale by a judgment creditor).

      . See generally 7 R. Powell & P. Rohan, Real Property § 51.04[1][c] (M. Wolf ed.2001).

      . Some authority supports the position that in a title theory state, the mere act of mortgaging a piece of property is sufficient to sever a joint tenancy because legal title to the property is actually transferred. 7 R. Powell & P. Rohan, Real Property § 51.04[1][c] (M. Wolf ed.2001). However, in lien theory states such as Colorado, see § 38-35-117, 10 C.R.S. (2003), merely mortgaging property does not transfer legal title and is therefore insufficient to sever a joint tenancy. See Powell, supra, § 51.04{1][cl.

      . 7 R. Powell & P. Rohan, Real Property § 51.04[1][b] (M. Wolf ed.2001).

      . See Webster v. Mauz, 702 P.2d 297, 298 (Colo.App.1985) (stating that merely encumbering one's own interest in joint tenancy is insufficient to sever a joint tenancy).

      . We note, in passing, that the Nebraska General Assembly enacted legislation the year following Krause specifically allowing such unilateral self-convéyances. Neb.Rev.Stai. § 76-118(4) (2004).

      . Although permitting termination of joint tenancies by a self-conveyance comports with a preference for effectuating intention, it does permit one joint ienant to attempt to gain an advantage over the other by executing the self-conveyance and delivering it to an heir or devisee with instructions to record it, but only if, the self-conveyor dies first, in which case
      the severance will be effective and the interest will pass by intestacy or devise; if the self-conveyor survives the other joint tenant, the self-conveyance can be suppressed and the survivor take all by right of survivorship. In consequence, some states require recording for effectiveness of self-conveyances.
      Thomas, § 31.06(d), at 24.