By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
By Michael Roberts
By Melanie Asmar
Pam answered the door. Volosin grabbed her and yanked her outside and, she later claimed, started hitting her. She yelled for David to get his gun. David retrieved a .357 handgun he kept under his bed, ran to the door, pointed his gun into the darkened street and fired four shots.
Two shots hit Michael Volosin. A third hit a neighbor as he walked toward Guenther's house. The last shot found Josslyn Volosin, who'd seen the altercation between her husband and Pam and was walking toward the house to break it up. The bullet pierced her heart; she staggered out of the Guenthers' yard and died in the street.
The case was assigned randomly to Pepin, then a young public defender. "Generally, I recall that a lot of us [in the public defender's office] were not for the law," he says. "It basically seemed to give a license for a person to just kill anybody with small, if any, provocation."
Still, Pepin adds, he was aware of the law and not above using it to clear his client, although he admits, "there were several problems with the Guenther case. For one, three people had been shot." There was also some question as to whether Michael Volosin had really entered David Guenther's house. Even in the best possible scenario for Pepin, Volosin had merely reached inside the doorway with his hand.
Despite the questions, the judge agreed with Pepin; the case against Guenther for killing Josslyn was dismissed -- although not without comment from the judge, Philip Roan, who termed the Make My Day law "ridiculous...It is a license for homeowners to kill without the possibility of being held accountable." Equally appalled, the Adams County District Attorney's Office appealed. "They wanted the murder conviction," Pepin recalls.
Meanwhile, "the Guenthers were the most unpopular people in the city," Pepin says. "The neighborhood believed that he had gotten away with murder. This was not what the law was supposed to be about. When a burglar breaks into the eighty-year-old woman's house and she blasts him away -- that's what people were thinking about."
Further complicating the case was David Guenther himself. "I genuinely believe that the stress of this case was responsible for what happened," Pepin says. On March 1, 1987, almost exactly one year from the Volosin shootings, David ambushed Pam, with whom he'd grown increasingly estranged, and shot and killed her in front of their two children in a Commerce City parking lot.
Four months later, the state Supreme Court overturned the Make My Day dismissal. At the retrial, Pepin again used the Make My Day defense in the shooting of Michael Volosin -- the person who'd actually entered his house unlawfully -- and a traditional self-defense argument for the killing of Josslyn Volosin and the shooting of the neighbor.
On October 22, 1987, the jury acquitted David Guenther of all the shootings. A year later, however, he was sentenced to life in prison for killing his wife.
The Guenther case was seen by many as an unfortunate and sloppy aberration to the type of situations that Make My Day's writers had envisioned. Yet instances like the Guenther case, in which a person defending his home appears to have gone far beyond the means that seemed necessary -- even in retrospect -- to remove the threat have not been as rare as one might think. One occurred only two months after David Guenther killed Josslyn Volosin.
Early on the morning of June 17, 1986, Keith Alexander showed up at the Colorado Springs apartment of Lloyd Carmon. The two men were familiar with each other. Several years earlier, they had considered themselves friends. More recently, though, the friendship had deteriorated after Alexander began dating Carmon's wife during a separation and urged her to divorce her husband so that they could marry.
Since that time, the Carmons had made up, and Alexander was the man out. Still, the men had more than a woman in common; both had long criminal records, in Colorado and in other states. Neither was a stranger to violence. On the evening of June 17, both were apparently drunk.
Alexander had pounded on Carmon's door twice and got no answer. The third time he knocked, Carmon opened it and Alexander pushed in. He held a knife and -- depending on the version of the story being given -- either began waving it at Carmon in an attempt to intimidate him or began trying to stab him. Carmon, who had a cast on his arm, fended off the thrusts. He then retreated just inside the door to the kitchen and grabbed a large butcher knife and fought back. When the police arrived, Alexander's dead body had 32 wounds in it, in the heart, lungs, liver, head, chest, abdomen, arms and legs.
Carmon later admitted that he'd stabbed Alexander first in self-defense, and then, when he wouldn't drop to the floor, for insurance. Yet even while Alexander was lying on the floor, Carmon continued to push the knife into him; Alexander, he said, was still trying to hurt him.
A week later, the El Paso County district attorney, Barney Iuppa, reluctantly decided not to charge Carmon in the killing. "There would come a point under the law where [stabbing someone] 32 times could be considered too much," he said then. "But we couldn't even get that far, because the Make My Day bill says he couldn't be charged. Under this new law, the danger could be long past. It is so broad that a person could break into a house, be disarmed and tied in a chair and executed."