¶1dissenting:
¶2I respectfully dissent from the majority opinion. In my view, the trial court’s failure to instruct the jury regarding the defendant’s theory of self-defense was reversible error. Although I would agree that the result reached by the majority follows from People v. Fink, 194 Colo. 516, 574 P.2d 81 (1978), I would take this opportunity to overrule Finkand hold that a defendant charged with reckless manslaughter or criminally negligent homicide is entitled to a jury instruction on self-defense as long as some evidence was adduced at trial that would support a jury’s finding that the defendant acted in self-defense.
¶3In People v. Fink we held that when a defendant is charged with a crime that has as an element .either recklessness or criminal negligence, and the jury is instructed as to each and every element of the crime, a self-defense instruction need not be given. 194 Colo. at 518, 574 P.2d at 83. Thus, under Fink, the trial court need only instruct the jury as to the elements of the crime charged and may omit any specific reference to the theory of self-defense. The reasoning underlying Finkwas that if the jury believes that a defendant accused of reckless manslaughter or criminally negligent homicide acted in self-defense, then it will be unable to find that the defendant acted with the requisite mens rea of recklessness or criminal negligence. Id.The holding of that case was based on the assumption that the jury will use any evidence of self-defense to determine if the defendant was acting in a reckless or criminally negligent manner.
¶4The result reached in Finkwas supported by the “Notes on Use” of CJI-Crim. 9:7 (1974), which at the time Finkwas *872decided stated that the affirmative defense clause was deleted purposefully from the instruction on reckless manslaughter. The note reasoned that if justification or exemption were present the defendant would not be acting recklessly, so a jury finding of reckless conduct would preclude any affirmative defense. Since Finkwas decided, however, the Colorado Jury Instrue-tions-Criminal have been revised to include as an element of the crime of reckless manslaughter the absence of any relevant affirmative defense. See CJI-Crim. 9:06 (1983). The “Notes on Use” no longer state that justification or exemption is precluded by a finding of recklessness. Therefore, it appears that the current reckless manslaughter instruction contemplates an instruction on self-defense. As so construed, I regard the current version of this standardized jury instruction to reflect a more reasonable understanding of jury thought-processes and to give appropriate recognition to a defendant’s right to have the jury instructed as to all matters of law applicable to his case.
¶5It is no substitute for an instruction from the court regarding the legal requirements of the theory of self-defense that counsel can argue that the defendant was justified in using deadly force to defend himself. See People v. Hardin, 199 Colo. 229, 234, 607 P.2d 1291, 1294 (Colo.1980) (“It is the duty of the trial court to instruct the jury properly on all matters of law.”). A defendant is entitled to an instruction on his theory of the case whenever the theory is supported by some evidence in the record. People v. Marquez, 692 P.2d 1089, 1098 (Colo.1984); People v. Dillon, 655 P.2d 841, 845 (Colo.1982). This is true no matter how unreasonable or improbable his theory might be. People v. Marquez, 692 P.2d at 1098. To expect a jury to understand without guidance from the trial court that it should consider evidence of self-defense when determining whether the defendant was acting recklessly or negligently is to ignore the practical limitations of the jury and to expect from it an awareness of a legal point “so subtle [that it] is a feat beyond the compass of ordinary minds.” People v. Madson, 638 P.2d 18, 31 (Colo.1981) (quoting Shepard v. United States, 290 U.S. 96, 104, 54 S.Ct. 22, 25, 78 L.Ed. 196 (1933)). Moreover, in this case the jury was instructed that it was to be guided by the judge’s instructions taken as a whole, not by the lawyers’ comments on the rules of law applicable to the case. The court, however, never instructed the jury as to the circumstances in which a person may act in self-defense. Consequently, it would have been difficult in light of these instructions for defense counsel to persuade the jury that the defendant’s use of justifiable force to defend herself refuted the element of recklessness.
¶6For these reasons, I would conclude that Finkwas wrongly decided and would hold that a self-defense instruction should be given in a reckless manslaughter case if such an instruction is supported by evidence in the record. Under the circumstances of this case, a properly instructed jury could have chosen to believe the police officer’s testimony that at the crime scene the defendant stated that she “automatically” stabbed the defendant. The jury could have treated this statement as evidence of self-defense and concluded that the defendant’s trial testimony that the stabbing was accidental was based on faulty recollection. Under these circumstances, the failure to charge the jury on self-defense was not harmless and must be regarded as reversible error. Accordingly, I would reverse the judgment of the court of appeals and remand the case to that court with instructions to return it to the district court for a new trial.
¶7QUINN, C.J., and MULLARKEY, J., join in this dissent.