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.

Today Iuppa is a county judge. He still opposes the law. "It is subject to being manipulated," he says, "to where someone could get away with murder."

Other prosecutors are still made uneasy by the law for the same reason. Denver District Attorney Bill Ritter says he wasn't thrilled with the case of Frank Geionety, who in December 1995 bludgeoned his neighbor, Gerald Swennigson, four times with a metal pipe during a fight. Swennigson, who had been demanding money for beer, was unarmed at the time. "It certainly would have been a closer call under the old self-defense laws," complains Ritter, who didn't bring charges against Geionety. "Make My Day takes reasonableness out of the equation."

Or consider the muddled June 1995 case of Marlon Servantez. Servantez, 32, of Grand Junction, and a friend, James Meeks, 25, had gotten into an argument over who was a better concrete finisher, recalls Frank Daniels, the Mesa County prosecutor. The argument shifted back and forth between the men's apartments and a hallway. At one point, Servantez ordered Meeks not to enter his apartment. When Meeks did, a fistfight broke out. Servantez pulled a knife and stabbed Meeks five times.

David Guenther.
David Guenther.

Daniels tried to prosecute Servantez for murder. "When the victim went to the ground, Servantez finished him off by plunging the knife into him several more times, killing him," Daniels says. "Where's the reasonable in that?"

But a local judge dismissed the case against Servantez -- even after a witness to the killing reported that he'd later heard Servantez bragging about the homicide. "The testimony, if true, is offensive but unfortunately consistent with the Make My Day nickname, which implies that killing an intruder, even when justified, is an event to be celebrated," the judge, David Bottger, said in January 1996. "How [Servantez] felt about these events, then and now, is irrelevant."

Even when the letter of the law is met, some cases in which a killer walks away a free man can leave a nagging question as to whether it is exactly what the legislature intended. "My belief is that the Make My Day law was created to address burglars and not former loved ones," says Mike Goodbee, a prosecutor in Colorado's Fifth Judicial District, which runs from Clear Creek County west to Eagle County.

Goodbee got a chance to test that theory with a jury three years ago. Early in the morning of June 15, 1995, Linford Tillman used his old key to enter the St. Mary's Glacier condominium of his former lover, Mark Janes. There he found Janes in bed with another man. Tillman yanked the man out of the bed and began beating him. Janes used the opportunity to grab his gun, and when Tillman stopped hitting the lover and came toward Janes, Janes shot and killed him.

"It was a controversial case, even within our own office," Goodbee recalls. "We have a monthly meeting with all the lawyers in the office, and several of them thought we shouldn't try it, that we should dismiss it under the Make My Day law." Goodbee decided to prosecute it anyway.

The case went to trial in 1996. Janes used the Make My Day law as a defense, although there was some question as to whether Tillman could have entered Janes's condo illegally using a key. The jury sided with Goodbee, convicting Janes of "heat of passion" manslaughter.

The case was appealed over incorrect jury instructions, however, and later overturned. Still, Goodbee has no regrets. "My sense was that a man had been shot, a man had died. And we thought that the citizens of the county, in a jury, ought to be able to decide what they thought was right."

Indeed, what is right and what is merely legal can often clash in the crucible of Make My Day cases. Consider the "accidental" killing of Duane Rice in Weld County.

Rice was a co-worker and friend of Marty Tomlinson's. Early in the morning of June 7, 1994, Rice forced his way into the Evans home shared by Tomlinson and his uncle, Lyle Wills. Rice was hoping to convince Tomlinson to give him some money to bail Rice's wife out of jail. Instead the two began fighting, hitting each other and rolling on the kitchen floor.

"Mr. Wills is confined to a wheelchair," recalls Mike Guthrie, Evans police chief. "He was alarmed at what was happening, so he went and retrieved a handgun. He returned and shot Rice in the shoulder. It was not his intent to kill him but to wound him."

Unfortunately, Wills's shot hit Rice at an odd angle; Rice was bent over, and the bullet penetrated downward, piercing his heart. Even though Rice wasn't armed and Tomlinson suffered few injuries in the scuffle, Wills was cleared of the killing. "Based on the facts we uncovered during our investigation, it was a legitimate killing," Guthrie says.

Just as supporters of the Make My Day law relied on their boilerplate narrative to prove the need for the new law, prosecutors who opposed the law had their favorite doomsday prediction. The truly frightening possibility of the Make My Day law, they warned, was that of a planned murder. "It creates a situation where the best place to kill someone is in your house," says Craig Silverman, a former Denver prosecutor.

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