Home Is Where the Hurt Is
Last year, three days before Christmas, in an isolated field outside the tiny Western Slope town of Mancos, Richard Skala and Kelly Green began drinking hard. The two men lived in small trailers near each other. Neither did much in the way of regular employment. Green worked a mining claim next to his trailer; Skala considers himself a sculptor. Neighbors referred to the two men as "drinking buddies," though the emphasis seemed to be on drinking.
"It was more like a battered-woman relationship than anything," says Jeff Pagliuca, a Denver attorney. The men were a dark version of the odd couple, antagonistic and dependent. Green was an alcoholic who could become violent when he drank. (His daughter later admitted that she hadn't been in contact with her father for more than five years. Part of the reason, she said, was that Green seemed more comfortable away from people, living on the margins of society. But another piece of the explanation was plain fear.)
Skala was, at least outwardly, more peaceful. He had been a conscientious objector during the Vietnam War -- "very laid-back," says Pagliuca. "I think he thought that by being kind and helping out, he could help Green." He kept a cello in his trailer.
The two men had known each other for the better part of a decade. But more and more often, Green seemed to steer his free-floating anger toward Skala. A year earlier, during a drunken fight, he had gripped Skala by the throat and thrown him into his cello. Skala had snatched up a .22 rifle and fired it over Green's head, ordering him to leave. Green did.
Yet their uneasy relationship had resumed, as it always did, and on the night of December 22, 1998, the two men found themselves sharing a bottle once more. (Green's blood alcohol level was later shown to be twice what is considered the limit for impaired driving; Skala's was even higher.) As the night wore on, Green again began to threaten his friend. Eventually, Skala asked him to leave, and Green stalked out of the trailer.
Moments later, though, Green burst back in. He stepped menacingly toward Skala. This time, when Skala told him to stop, Green refused. Skala, who later would claim that he'd spotted a weapon in Green's hand, grabbed a .410-gauge shotgun he kept near the door, brought it to his shoulder and shot his friend once, at point-blank range. The round nicked Green's heart; for all medical purposes, he died instantly.
Like many self-defense cases, Green's death was, in retrospect, a bewildering mix of recollection and fact, hatred, fear and remorse. A paramedic team arrived before the police did. They decided that there was nothing they could do for Green, so they left the trailer to wait outside for investigators. When the police arrived, the paramedics re-entered Skala's home. But this time they noticed something different: Several minutes earlier, Green had lain empty-handed and dead on the floor; now there was a large hunting knife in his hand, obviously planted there by Skala. Several days later, Skala attended the funeral of his late friend.
One month ago, in the latest use of Colorado's Homeowner Protection Act of 1985 -- better known as the "Make My Day law" -- Skala was legally cleared of the killing. Citing the statute, a La Plata County judge dismissed murder charges against Skala. A charge of tampering with evidence, relating to the mysterious appearance of the hunting knife, is still pending. Yet it is one of the stark facts of life under the law that what really happened that night in Mancos may never be known. After all, it is routine in Make My Day cases for there to be only one witness still alive.
In his 1990 book, The Make My Day Law: Colorado's Experiment in Home Protection, William Wilbanks, a professor at a Florida university, reported that at a 1987 murder trial, a group of twelve-year-old students touring the Denver County Courthouse wondered if a trial that was under way had anything to do with the recently passed Make My Day law. When they were told that it did, one of the boys asked if it was true that he could legally shoot a trespasser in his backyard. Nearly fifteen years after it passed, the Homeowner Protection Act is still probably the state's best-known and least-understood law.
The law's nickname, and the stories of vigilante violence that accompany it, lead many people to believe that in Colorado, any trespasser on one's property may be killed without consequence. Yet the law is more demanding than that. It requires a homeowner to meet four specific requirements before he may shoot to kill and hope to walk away without punishment.
To begin with, the person defending the property must be an occupant of it. In 1994, when a stranger broke into her Capitol Hill home, state senator Pat Pascoe ran for help to her neighbor, Ronald Coleman, an ex-cop. Although Coleman's defense of the senator was efficient -- he shot and paralyzed the burglar as he fled down a dark alley -- he was not protected from prosecution under the Make My Day law, since he did not occupy the home that had been broken into (among other reasons).
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.)
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.
At his 1987 trial, Lopkoff claimed that Lafitte had forced his way into the house. Lopkoff, fearing for his life, had stabbed him in self-defense. But the Jefferson County District Attorney's Office painted a far different version of the confrontation: Prosecutor Laura Dunbar contended that Lafitte, who was unarmed, merely pushed open the door and asked if Michelle was there -- the story given by Scharlemann, who was listening from Lopkoff's bedroom.
Lopkoff, whose defense was based solely on the Make May Day law, was acquitted of second-degree murder. Hampering the prosecutions's case, of course, was that Lafitte was not present to give his side of the story.
Despite the strict legal requirements contained in the law, imagining a break-in by a stranger is easy enough for anyone who has heard a mysterious bump in the middle of the night. In their effort to make a strong case for the then-proposed law, in 1985 legislators and supporters laid out the same frightening scenario so often, it began to seem typical: It's 3 a.m., a homeowner is asleep in his bed, and he hears a noise. He grabs his (lawfully acquired) firearm and tiptoes downstairs, where he confronts an intruder intent on doing him and his loved ones harm. He aims and fires.
Why should he be the one who is legally blamed?
It is difficult to know exactly how many times the Make My Day law has kept a person who has taken another's life from going to trial or to prison. The law is an immunity statute: When it applies to a case, it generally prevents a person from being prosecuted. So from the standpoint of criminal-justice record-keeping, Make My Day cases aren't really cases at all -- rather, they're non-cases. As a result, there are no comprehensive statistics on how many times the law has been used in its fourteen-year life span.
Still, the law appears to have been applied rarely -- only about three times a year. Westword has found and reviewed approximately fifty cases in which the law was applied, or attempted to be applied, to self-defense killings or assaults. What is abundantly clear is that the classic profile drawn by legislators in 1985 as they attempted to sell the law are, by far, the exception rather than the rule.
Generally, the killings are much messier. Many of the people involved, like Richard Skala and Kelly Green, knew each other well and had themselves created a fractious social situation that spun out of control and into violence. Lovers' triangles make up a sizable percentage of Make My Day cases.
In many of the cases, the participants were, like Skala and Green, extremely drunk. When John Daniels entered Frank McNeese's apartment, his blood alcohol level was .349 -- nearly lethal. (Interestingly, no one who has used a gun in a Make My Day situation appears to have been charged with discharging a firearm while intoxicated, a criminal offense.) Some of the people who were not charged in Make My Day killings had already accumulated lengthy criminal records.
That isn't to say that drunks, ex-lovers or ex-cons don't have the right to protect themselves from violence in their homes. The idea of having that specific right resonates strongly with nearly everyone. And it's difficult to cook up sympathy for any burglar. Kopel points out that even though Coleman's shooting of his neighbor's burglar wasn't protected under the law, it was still, in some ways, a success. "That guy had a long criminal record," he says. "He was shot and paralyzed, and now he's out of the crime business." Yet despite such sentiments, it makes sense to acknowledge that the price of safekeeping those lives legislators actually thought they'd be protecting is being paid at the margins.
It also makes sense to review the results of the Make My Day law for the reason that the statute represents a philosophical stepping-stone toward greater gun liberalization -- for example, relaxing the state's concealed-carry laws, certain to be brought up again in this legislative session.
The Make My Day and concealed-carry laws are different. On its face, the question of who may carry a concealed weapon and when has nothing to do with the use of deadly force during self-defense, the point of Make My Day. Yet it is naive to think about giving citizens greater freedom to carry weapons in public without granting that, on occasion, they will use them to kill people. A person who has made the decision to pack a handgun has already, in one way or another, acknowledged that he is prepared to pull the trigger. (See related story, page 22.)
Beyond that, the Make My Day and concealed-carry laws share an even more fundamental connection, says Dave Kopel, a Second Amendment expert with the Independence Institute, a conservative think tank in Golden. "The question with both is: To what degree do people trust their fellow Coloradans with firearms?"
Though they couldn't have known it fifteen years ago, supporters of the Make My Day law had Lance Fehr and Francis Boutcher in mind.
Fehr lives in a trailer park squeezed into the center of suburban Lakewood. A disabled Vietnam vet, he spends most of his day surfing the Net. He has a personal interest in near-death experiences, which he researches over the Web, and he keeps up several regular online acquaintances. He has lived in the same place for thirteen years.
A visitor would have to look hard for evidence of violence among the family photos and other collectibles in Fehr's trailer, but it's there. Above and to the right of his computer, a picture of him as a young man covers a ragged hole ripped by a shotgun blast. Underneath his desk, a cardboard storage trunk sports a neat round hole where a .357 bullet punctured the side.
The holes are nearly three years old. "It was December 21," Fehr remembers. "I was sitting right here at my desk. A guy knocks on the door once, and I thought it was a mistake, so I didn't answer it. The second time, though, I opened the door. And this guy sucker-punches me. I fell back and grabbed my shotgun that I kept here under my desk."
The gun, given to him by a neighbor, was a .20-gauge single shot, sawed off -- specifically modified for home protection. The intruder, later identified as Anthony Gutierrez, a young man with a history of drug use and a stranger to Fehr, grabbed the barrel of the gun and yanked it. The weapon discharged into the trailer wall. Fehr let go of the gun and ran to the back of the trailer toward his bedroom, where he kept his .357 Smith & Wesson handgun.
He'd purchased the gun five years earlier for home protection backup, a process he remembers as being uncomfortably easy. "I walked into Gart Bros. with $500 in my pocket," he recalls. "I looked over the handguns and walked out with a .357 and 200 rounds of ammo. I filled out exactly one piece of paper. It was amazing. If you ask me, the laws ought to be tighter; there's a lot of dirtbags out there."
With Gutierrez -- who was later found to be high on crack -- pursuing him through the trailer, Fehr turned and fired a rapid three shots. The first went through Gutierrez's leg and lodged in the storage trunk. The second penetrated his stomach; that bullet exited Fehr's trailer and entered his neighbor's bedroom. The third shot pierced Gutierrez's chest and sliced through his heart. Gutierrez died as he fell through Fehr's doorway, still holding on to the shotgun.
Today the whole incident has an air of unreality to it for Fehr -- partly because his thick glasses had been knocked off during the initial confrontation. Still, he says, "You know what? I really wasn't scared. It was like an automatronic thing.
"When it was over, I lay my gun down here on my desk and called the cops. They came and took me to the station -- I got the whole Murder One thing: They handcuffed me, grilled me for five hours, put me in a paper suit. But two days later, at home, I get a fruit basket from Lakewood police dispatch. It must have cost $75! It was nice of them."
Even nicer, about three weeks later he got a call from the Jefferson County District Attorney's Office saying he would not be charged in Gutierrez's death. "I had known about the Make My Day law before this," Fehr says. "Now I'm glad it was there."
Since the attack, Fehr has gotten rid of the shotgun, though not because of any feelings of guilt or remorse or fear: He traded it to a neighbor in exchange for a brake job on his car. The .357 remains loaded and on a shelf above his bed, within easy reach. "I'm ready, let's say that," he says.
Fehr says he hopes he doesn't have to shoot another person, much less kill him. But, he adds, he's had no trouble getting over the death of Anthony Gutierrez. "I really haven't lost any sleep over it," he says.
The same can't be said of Francis Boutcher. "I try to dismiss it from my mind," says the 78-year-old Longmont resident. "But I think about it. Sometimes, when I try to lie down and get a good night's sleep, it comes to me. I try to lead a halfway Christian life. The Bible tells you, 'Thou shalt not kill.' But when it comes to protecting your home and family..."
Boutcher got his first firearm at the age of twelve, when he lived on a farm in north Texas. Later he collected more guns, which he first used for hunting and then, as he aged, for target practice. "I had no plan on ever using a gun for self-defense," he says.
That changed on the night of May 13, 1990, when eighteen-year-old Jacobo Griego broke into Boutcher's home. "My wife woke me up and said, 'There's someone in the kitchen breaking dishes,'" he recalls. "I got the key and unlocked my gun cabinet and took out my gun." It was already loaded, since "an empty gun is no earthly good to anyone."
Boutcher confronted Griego, speaking with him well before any shots were fired. "I pleaded with the man to throw up his hands," he says. He fired two warning shots into the air. But when it appeared that Griego wasn't going to leave, Boutcher leveled his gun and pulled the trigger a third time. "I usually hit what I'm aiming for," he says. The shot exploded into Griego's head, killing him as instantly as death can come.
"I never thought I'd take a man's life," Boutcher says. "I never even featured it. But I wasn't thinking about what I was doing. When someone breaks into the home that you bought and paid for -- I'm not going to let a person come in and take what I put my sweat and blood into."
Several days later, the Boulder County District Attorney's Office informed Boutcher that he would not be charged with murder. "The Make My Day law is about the only thing that saved my butt from being sued," he says today.
Still, Boutcher has paid a private price for taking a man's life. For months after the incident, he had trouble falling asleep, kept awake by an endless nightmare film loop of him killing another human being.
"There's no glory in it," he said soon after the 1989 incident. "God did not put us on this earth to take other people's lives. A young man lost his life on Mother's Day. It's a tragedy. It's too much."
By the time a gun showed up, Mr. Hermis had twice assaulted his supervisor, Mr. Brown, with a knife. And there was the promise of more conflict: After the second near-stabbing was broken up, Hermis had sworn that the next time the two men fought, one of them would "go off in a black box."
Brown was not about to be that person. He started carrying a handgun with him to work. The precaution proved useful. Several days later, Hermis came at his boss with a knife yet again. Brown ran back to his coat, about 25 feet away, and, while Hermis struck at him with the knife, shot four times.
Brown was convicted of murder after the judge instructed the jury that "it is necessary to remember, in considering the question of self-defense, that the party assaulted is always under the obligation to retreat so long as retreat is open to him." Incensed, Brown appealed, and in 1920, the case was heard by the United States Supreme Court. A year later, Justice Oliver Wendell Holmes wrote his opinion, a turning point in self-defense:
"The failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing, not a categorical proof of guilt. The law has grown, and...it has tended in the direction of rules consistent with human nature...If a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant, he may stand his guard. Detached reflection cannot be demanded in the presence of an uplifted knife."
It was the first time the country's highest court had stated so clearly that a person being attacked had the right to actively defend himself -- to the death, if necessary -- rather than run away. Since then, laws generally have moved in the direction of giving the benefit of the doubt to the person being attacked.
In the early 1980s, a wave of states began drawing a legal distinction between a man being attacked in, say, a bar and a person repelling an intruder in his own home. California was one of the first, with its 1984 "Home Protection Bill of Rights." The new law turned the traditional notion of self-defense upside down. Before, a homeowner who killed an intruder in his own house had to prove that he had feared severe injury or death in order to escape prosecution for murder. But California's Bill of Rights gave the homeowner the benefit of the doubt: It assumed that once someone broke into a house, the person inside had every reason to be afraid he could be hurt -- and thus was justified in killing the intruder.
Colorado's Homeowner Protection Act followed California's by a year. Vicki Armstrong, then a state senator from Grand Junction (today the Colorado secretary of labor) got the idea after a series of town meetings in which citizens voiced their fears. The Colorado version was slightly less liberal than California's; a homeowner here had to prove he feared some kind of physical threat -- "no matter how slight" -- from a trespasser before he could kill him. In theory, a homeowner who thought he might only be jostled could nevertheless use deadly force to defend his house and family. (Armstrong did not return several calls from Westword.)
This significantly changed the self-defense laws Colorado already had on the books. In the old laws, a person who killed another in self-defense had to prove that deadly force had been the only possible course of action to repel the attack. One couldn't shoot someone who merely shoved him and then expect to get away with it.
The first Make My Day case to hit the courts proved that no matter how carefully crafted a law may be, unforeseen circumstances can still squeeze through. The case involved an Idaho Springs police officer who was severely beaten while trying to take a child from a local man, a situation the law's authors could not have predicted. In November 1985, Jerry Malczewski was cleared of assault charges when a Clear Creek judge, William Jones, decided the police officer had entered Malczewski's house illegally, and so the new Make My Day law applied. "It's a scary statute, gentlemen," the judge commented as he dismissed the charges. The state Supreme Court later reversed him and sent the case back to district court, but the police officer died before the case could be retried.
The first successful application of the new law didn't make local headlines because it was so far away and because, recalls Otero County District Attorney Gary Stork, "the case was just right on point." In fact, the only thing odd about it was that the killing involved a man of God.
On December 17, 1985, in the small southeast Colorado town of Rocky Ford, Gilbert Ramon Reyes, 31 years old, got into a fight with his wife. Reyes had quit his job as a supervisor for a tree-trimming service two months earlier; he'd had trouble finding work since then and had begun drinking heavily. The couple had switched churches in recent years, and their new pastor, the Reverend James Thomas Brown of the River of Life Fellowship Church, was called on to try to settle the fight.
Brown was a tall, imposing man -- an ex-Marine, physically capable yet perhaps not the right person for the job. Although he was a reverend and considered himself a close friend of Gilbert Reyes's, there had been whispers that Brown been carrying on an affair with Reyes's wife, Marina -- or, at least, had looked upon her with dishonorable intentions.
When the pastor left the couple's house, not much had been solved. Reyes, still worked up, followed the pastor to his home. Seconds after Brown went inside, Reyes burst in. He was worked up, and it was clear from the start that he intended to harm someone. Brown ordered his wife and children to the upstairs bathroom, where they locked the door. A deadly game of chase began. Several times, Reyes got close enough to strike Brown. At one point, the pastor tried to call the police, but Reyes ripped the wire out of the wall.
The end came when the two men entered the kitchen. "Unfortunately for Mr. Reyes," Stork recalls, "the Reverend Brown had just bought some brand-new knives. They were still in that wooden holder -- you know, the kind that sits on the counter." Brown pulled an eight-inch butcher's knife from the holder and plunged it into Reyes's chest, killing him.
Brown found a sympathetic prosecutor in Stork. "I'm supportive of people trying to protect their property, and there's something about a person coming inside your home," the DA says today. "If someone came into my home, with my children there, I mean -- my God." Brown was cleared at a coroner's inquest. He continued preaching in Rocky Ford for a while, then moved to California. Stork says he fielded some complaints from Reyes's family following the killing, but any waves made by the case died down soon after.
The same could not be said of the violent and complicated case of David Guenther.
In the months and weeks leading up to the passage of the new law in 1985, many of Colorado's prosecutors fought the proposed legislation, arguing that traditional self-defense laws already on the books adequately protected citizens in their homes. "I remember three or four cases when I was working as a prosecutor in Denver, before Make My Day, when people broke into a guy's home and he pasted them," recalls Castalor Garcia, now an attorney in private practice in Alamosa. "I never filed charges; a man's home is his castle."
"Everybody knows that if a burglar breaks in, you can shoot 'em," says Frank Daniels, the Mesa County district attorney. "You don't need a new law to tell a person that."
"I don't have a problem with the concept of defending one's self under the law," adds Adams County DA Bob Grant, who continues to chafe at the law. "But when you create a license to kill when someone comes into your house, there is a danger of a person getting away with a murder. It becomes a question of creating a legal defense after the fact -- manufacturing facts to fit the law. It's an invitation to violence.
"In the Guenther case, it appeared to me that that was a very distinct possibility. That case, to me, was a travesty."
"My goodness, yes, I remember it," says Bob Pepin, a Denver attorney. "It was a messy case, for a variety of reasons.
"David Guenther lived in a little neighborhood in Northglenn -- small, narrow streets, not large homes. He didn't get along with some of his neighbors. There had been a series of small conflicts -- cars parked in the wrong spot on the street, things like that."
On April 20, 1986, Guenther's neighbors, Josslyn and Michael Volosin, hosted a rowdy party. Guests entertained themselves by drinking beer and kamikaze shots. At one point, several of the guests wandered over to Guenther's yard, where they let the air out of David's tires, broke a few bushes and started banging a pan and drunkenly shouting for Guenther to come out and fight.
David and his wife, Pam, called the police. The cops arrived and spoke with the Volosins, who assured them that the trouble was over. The police reported this to the Guenthers and left. David and Pam went back to sleep. But soon after that, Michael Volosin, who later claimed he'd heard someone bang on his screen door, was back at the Guenther's house, pounding on their door.
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."
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.
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.
Both situations have, for the most part, turned out to be fallacies. "Clearly, all the lurid scenarios that people predicted have not come to pass," says the Independence Institute's Dave Kopel. Adds David Vela, chief of the Colorado public defenders' office: "Overall, the law has worked well."
Indeed, there has not been a proven case of a murderer successfully hiding behind the cloak of the Make My Day law and escaping punishment for a killing. That doesn't mean it hasn't happened, though, and in several instances, prosecutors still have their suspicions.
On December 6, 1992, Darrell Allen and Harold Mason entered the Aurora townhome of William Harland. The men knew each other -- two of them were even related: Allen's wife was the sister of Harland's wife. A month earlier, Harland and his wife had separated. Allen and Mason encountered Harland in the basement. Moments later, Allen was dead of a gunshot wound to the head.
In his defense, Harland pointed out that he'd been robbed twice in the weeks leading up to the shooting. Moreover, he added, it was possible that it had been Allen who'd been breaking in and taking things.
But the story given by Mason was different. He claimed that Harland had called Allen and asked him to come to the townhome to fix a leaky faucet; in fact, the two men had left a Broncos game to respond to Harland's request. But when he and Allen arrived, Harland demanded a confession to the burglaries, informed Allen that he intended to kill him and claim self-defense, and then shot Allen in the head. Both Allen and Mason were unarmed at the time.
In short, argued Arapahoe County Deputy DA John Franks, Harland had arranged a murder.
But in June 1994, Harland was found not guilty. (Mason's lengthy criminal record may have discouraged the jury from believing his version of events.) "I don't want to sound sour-grapes about this," Franks says today. "But if what we believe happened is true, it was one of the coldest cases of murder I've seen. And he got away with it."
Harland's motives may have been unclear, but Arthur Hagar's were blatant.
Hagar ran an automotive-repair business in Crested Butte. In 1990 he began having an affair with Joyce Cobai. Joyce was the wife of Johnny Cobai, a long-distance truck driver. They were anything but discreet.
"Arthur was going around to bars and bragging about it," recalls Pete Hautzinger, a Mesa County assistant DA who ended up prosecuting the case. "He would say things like, 'I'm screwing Joyce Cobai, and it's the best sex I ever had.' It was inevitable that Johnny was going to find out."
In the meantime, Hagar contacted the Gunnison County District Attorney's Office. He had some questions about the state's Make My Day law: How did it work? What were some of the conditions that might result in a killer not being charged with murder?
On the night of July 10, 1990, Cobai drove by Hagar's garage. Hagar saw him and flipped him off. Cobai stopped his car, got out and entered the garage. "There was no question that Johnny was going to punch his lights out," Hautzinger admits. Instead, Hagar greeted Cobai at the door and shot him six times. Cobai fell outside the door, dead.
The local judge refused to hold a hearing to grant Hagar immunity under the Make My Day law, and the case went to trial. Hagar's lawyers contended that since Hagar kept a cot in a loft above the automotive garage, the business doubled as his home, and under the law, he was entitled to protection from the murder charge. Hautzinger argued that Hagar wanted Cobai dead and made it happen.
In February 1991, Hagar was convicted of first-degree murder. But Hagar appealed, contending that the district court judge made a mistake by not holding the Make My Day hearing before the trial. In May 1994, the higher court agreed and sent the case back for a retrial. This time around, however, Hagar pleaded guilty to second-degree murder before the trial could begin. Three years ago, he was sentenced to 25 years in prison.
"I think the Make My Day law has the potential to create situations where someone exploits a situation to commit murder," reflects Hautzinger, who still works for the Mesa County DA's office. "And I firmly believe that's what was going on in this case."
While cases such as Hagar's are alarming, they are rare. More troubling to critics of the law are the run-of-the-mill confrontations, many involving drugs and alcohol, in which events escalate out of control into death and where no one is held responsible for his actions. "The Make My Day law really becomes a problem when social relations break down," notes Daniels, the Mesa County DA.
He points to the case of the Mesa State College football players. In that five-year-old incident, a get-together in a dorm escalated into a fight. One of the players retreated temporarily out of the other's room and onto a balcony. The room's occupant warned him not to come back inside, and when he did, he shot him through the leg. Thanks to the Make My Day law, Daniels says he was forced to ignore the case.
"The victim initially had been invited into the dorm room," Daniels explains. "So if he had never gone out and then stepped back in uninvited, it would have been a totally different case." Instead, no charges were brought against the shooter.
"These self-defense cases can be animalistic," Daniels concludes. "And with the Make My Day law, it's an animalistic act approved by the State of Colorado."
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