You're an average guy, which is to say, occasionally you like to be tied up and whipped. But you have questions. For example: "How do Colorado's self-defense laws apply to me if things get out of hand?" Fortunately, there is precedent.
Unfortunately, it's not very encouraging. Say that you were to find yourself in an unfortunate prostitutional situation: She sees you tied up spread-eagled on your bed and recognizes a robbery opportunity. An hour later she drives away--in your truck--with most of your valuables. And the next thing you know, you're charged with attempted murder.
On June 18, 1994, at about 1:30 p.m., Lakin Wailes, 57, picked up a woman named Janette Doss--with a purpose. According to a police report of the incident, "he asked her to go with him and `do some bondage' because he liked being tied up and whipped."
They returned to Wailes's Commerce City home where, Wailes later recalled, "she tied me down to the bed. Then she started whipping me very hard." (A police officer confirmed this. "Lakin said Janette started to whip him with his consent and then showed me his whip marks on his rear end," he wrote.)
Sometime during the whipping session, however, the mood changed from one of consensual pleasure to one of larceny. Wailes recognized this when Doss began asking him where he kept his wallet. After determining that the blows were getting harder and that she apparently was prepared to beat the information out of him, Wailes relented. Doss exited the room, leaving Wailes securely spread-eagled on the bed.
Doss didn't go far, though. Using Wailes's telephone, she called a friend attending a party. A witness at the party recalls the man, Bruce Jackson, receiving the call. Jackson denies any involvement; but according to police, he arrived at Wailes's house by taxi a half-hour later.
Jackson and Doss stayed inside Wailes's house for just over an hour--long enough to stuff Wailes's 1990 Ford Ranger pickup truck with many of his belongings, including, according to a detective's report, "Realistic 10 Channel scanner, valued at $50; pull-out stereo, valued at $200; Realistic CD player, valued at $110; Canon 35mm camera with telephoto, zoom-lens, wide-angle and flash, valued at $150; 100 U.S. 29-cent stamps; and two (2) packages of ham, valued at $10."
Jackson and Doss couldn't fit all of Wailes's goods into his truck, so they stacked the VCR and portable stereo on the porch. In what turned out to be a crucial oversight, their search for pawnable items failed to uncover Wailes's .32 Special Winchester rifle.
According to police reports, the two drove to a fence, to whom Jackson allegedly sold the items. They then went back to the party where, Doss told police, Jackson said he wanted to return to Wailes's to pick up the VCR and stereo. Doss balked; she was afraid Wailes might have untied himself. Jackson won the argument, though, and at about 11:52 p.m. they pulled back into Wailes's driveway.
Meanwhile, Wailes had indeed worked himself loose from the bed. Noticing that many of his electronic goods and his truck were missing, he called 911 and reported the incident shortly after 6 p.m. The dispatcher told him that a police officer was on the way. About 45 minutes later Wailes called again to complain that nobody had arrived to take his report yet. The dispatcher told him to be patient.
Wailes told police that he had seen the VCR and stereo on his porch and deduced that Doss and her friend might be back. So he wrapped himself in his sleeping bag, grabbed his rifle and waited in the backyard.
According to neighbors, when Jackson and Doss arrived at Wailes's house, Jackson got out of the truck and walked casually toward the door. His progress was interrupted, however, when Wailes walked out from behind the house and began firing his rifle from the waist, cowboy-style.
Jackson ran back to the truck, jumped in and peeled out of the driveway. But not before Wailes was able to squeeze off four or five rounds. One shot was way off the mark: It penetrated a neighbor's plate-glass window and wound up in a bedroom wall.
Two others, however, were right on target. One pierced the passenger-side door and smashed into Doss's lower leg. Another bullet entered her thigh and left through her hip. Despite Doss's injuries, however, the couple did not seek immediate medical help. "Janette told [Jackson] she needed to go to the hospital," a police report reads. "He told Janette he would drop her off, but before that he needed to stop by a friend's house and sell the car stereo and the CB, which he did."
Meanwhile, Wailes returned to his house and dialed 911 a third time. The dispatcher, who'd just received a report of shots at Wailes's address, tried to pin down the source. Wailes was candid.
Dispatcher: "Did they shoot at your house?"
Wailes: "No, I shot at them. Are you gonna arrest me?"
Dispatcher: "I have no idea. I doubt it, but that's up to the officers."
Wailes: "Goddamn, I gotta protect what I got."
Unfortunately for him, the Adams County district attorney, Bob Grant, didn't entirely agree. He charged Wailes with attempted first-degree murder for shooting at Jackson and Doss and first-degree assault for the shot that went through the neighbor's window.
In 1985 Colorado legislators passed what has become known as the "make my day" law, which permits citizens to use deadly force to protect their property. But, says Grant, Wailes didn't qualify for protection under the statute. Courts have determined that people can shoot at an intruder only from inside their houses, and then only if the intruder is coming through a door or window. Wailes was in his backyard when he began firing his gun.
Still, Wailes's attorney, Steven Newell, says his client did have a pretty good case for self-defense. "He'd been tied up for several hours while these people robbed his house," points out Newell. "He'd tried to warn the police when he called 911 that they'd be back. He was in the backyard because he was afraid that they'd come and get him."
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Grant agreed that Wailes might appear sympathetic to a jury and accepted his plea of guilty to second-degree assault. "There were certainly some extenuating circumstances--some of his own making, some of his victims'--that led us to accept a plea agreement," Grant says.
In January 1995, Wailes, who works at a grocery distribution center, was sentenced to thirty days in jail and two years' probation. Janette Doss pleaded guilty to stealing Wailes's truck; she is scheduled to be sentenced in February. In the meantime, she is seeking money from Wailes to pay her medical bills. Last week Jackson pleaded not guilty to any crimes against Wailes, claiming a case of mistaken identity.
Wailes himself is philosophical about the incident. "It was complicated," he says. "But you go to shooting people, it ain't too good. The DA gets upset. If I'd let him come into my house, it would've been covered under the `make my day' law. But not if they're driving away. Even in your own vehicle.