Home Is Where the Hurt Is

Coloradoís Make My Day law was designed to protect homeowners who were forced to kill in self-defense. Hereís who itís really helped.

The second prerequisite necessary for a successful Make My Day defense is that the intruder must enter the house unlawfully; he cannot, for example, be invited in and then legally killed. Although this seems simple enough, time has shown that there are plenty of shadows between an invitation into a house and an outright trespass. For instance, what if the intruder has a key?

In late 1991, Robert McNeese allowed Vivian Daniels to move into his house when she told him she was not getting along with her husband, John. Vivian agreed to pay rent and not permit her husband into the apartment. On November 15, McNeese and Vivian went out drinking. When they returned to the apartment, he began making sexual advances. Vivian was not interested, and she decided then and there to leave the apartment and return to her husband. Early the next morning, John and Vivian Daniels and a friend, using Vivian's key, entered McNeese's apartment. In the ensuing brawl, John and his friend were stabbed to death by McNeese, and Vivian was injured.

Was John Daniels's appearance inside McNeese's apartment unlawful? After all, he did use a key, and he was accompanied by its proper owner. A Denver district judge said McNeese could not be held accountable for the murders under the Make My Day law, however, because he had instructed Vivian not to allow her husband in the apartment. (Later, the state Supreme Court, describing McNeese's stabbings as "arbitrary, casual killings," reversed that decision. McNeese then pleaded guilty to manslaughter and was released for time served.)

William Harland.
William Harland.
Marlon Servantez
Marlon Servantez

The flip side of the unlawful-entry test is that the intruder must actually be inside the house for the property owner to be legally justified in killing him. Generally, this has been interpreted as the intruder "crossing the threshold" of a doorway or window. But even this specific defi-nition lets enough light through the cracks to permit debate.

In one 1996 Colorado Springs case, for instance, following a dispute over dog poop, Elvin William Landrum kicked in his neighbor's screen door. Gina Cushon shot him in the face and killed him. Yet a judge ruled that she was not entitled to protection from prosecution under the Make My Day law because Landrum had not entered the house. (That ruling was later overturned.)

In a 1990 case in Crested Butte, a man who kept a cot in his place of business shot and killed an intruder. Yet prosecutors wondered: Had the trespasser really entered the man's home? In the law's fourteen-year history, other imprecise situations have arisen as well. What if a person enters a doorway and then leaves?

One morning this past April, Colorado Springs resident Charles Wall noticed that his house had been burglarized; he discovered that a flashlight was missing from its charger and that his wife's purse had been riffled. Early the following morning, at about 1 a.m., he heard a noise that sounded like someone was entering the house through the dog door. He picked up his .357 handgun and crept downstairs.

He immediately spotted a person at the door, later identified as James Craven, a young man with a criminal record. Wall, 69, pointed the gun at Craven and ordered him to lie on the ground. At first it appeared that Craven would obey the instruction. Then, suddenly, he jumped up and began running away. Wall, who later said he shot generally in the direction of the fleeing Craven out of panic, nevertheless hit Craven in the head. Craven was charged with trespassing and burglary; Wall was charged with nothing. (El Paso County Deputy DA Dave Gilbert says the decision not to charge Wall was strictly under self-defense laws, although Make My Day was a consideration.)

The third prerequisite for a homeowner to receive legal permission to shoot and kill a stranger in his house is that the homeowner must believe the intruder is about to commit a crime. Often, this decision turns on the version of events given by the person left living. In June 1995, Gene O'Neil was awakened by a noise in his Capitol Hill apartment. When he saw a man enter his bedroom, he grabbed his .25-caliber handgun and fired three times.

The man, later identified as a transient, died soon after from a gunshot wound to the chest. The Denver DA's office, perhaps recognizing that the odds of a person entering another's home at five in the morning with non-criminal intentions are low, reluctantly gave O'Neil the benefit of the doubt, and he was not charged with murder. Yet the truth will never be known: Was the transient, who was unarmed, about to commit a crime? Or was he merely disoriented?

The last requirement is that the homeowner must have cause to believe that he may be in danger of suffering some physical injury, "no matter how slight," at the hands of the intruder. This, too, has been subject to interpretation. While Charles Wall may have been afraid to find an intruder at his door at 1 a.m., for instance, did he really feel threatened when James Craven jumped up from the ground and fled?

More often, though, legal disputes over the potential physical threat during a confrontation turn on survivors' and witnesses' versions of events. In May 1986, Mariano Marcelo Lafitte was stabbed to death by David Lopkoff at Lopkoff's Golden home. The two were connected by a woman, Michelle Scharlemann, who was Lafitte's ex-girlfriend and now lived with Lopkoff.

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