People v. Guenther, 86SA282

Citation740 P.2d 971
Decision Date13 July 1987
Docket NumberNo. 86SA282,86SA282
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, v. David Alan GUENTHER, Defendant-Appellee.
CourtSupreme Court of Colorado

James F. Smith, Dist. Atty., Steven L. Bernard, Chief Trial Deputy, Brighton, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, Frances Smylie Brown, Deputy State Public Defender, Denver, for defendant-appellee.

QUINN, Chief Justice.

The People appeal from a judgment dismissing charges of second degree murder, first degree assault, and the commission of a crime of violence filed against the defendant, David Alan Guenther. The district court dismissed the charges pursuant to section 18-1-704.5(3), 8B C.R.S. (1986), which provides that under certain circumstances an occupant of a dwelling using any degree of physical force against an intruder, including deadly physical force, shall be immune from criminal prosecution. We construe section 18-1-704.5(3) to authorize a district court to dismiss a pending criminal charge prior to trial when the defendant establishes the statutory conditions for immunity by a preponderance of the evidence. In this case, however, the district court erroneously imposed upon the prosecution the burden of proving beyond a reasonable doubt that the defendant's conduct did not satisfy the statutory conditions for immunity. We accordingly reverse the judgment of dismissal and remand the case to the district court for further proceedings.


The defendant was charged in a four-count information with the following crimes allegedly committed on April 20, 1986, at or near the defendant's home in Northglenn, Colorado: second degree murder committed against Josslyn Volosin, § 18-3-103(1)(a), 8B C.R.S. (1986); two counts of first degree assault committed against Michael Volosin and Robbie Alan Wardwell, § 18-3-202(1)(a), 8B C.R.S. (1986); and one count of the commission of a crime of violence, § 16-11-309, 8A C.R.S. (1986). After these charges were filed, the defendant filed a motion to dismiss and to enjoin further prosecution. It was the defendant's contention that since he fired the shots only after an unlawful entry had been made into his house and after it appeared that his wife was being harmed, he was immune from prosecution under section 18-1-704.5(3), 8B C.R.S. (1986). The district court first set the case for a preliminary hearing. At the conclusion of the preliminary hearing, the court found that there was probable cause to believe that the defendant had committed the crimes charged against him. The defendant entered a plea of not guilty, and the court heard the motion to dismiss on July 21, 1986. At the dismissal hearing, the court considered the evidence admitted at the preliminary hearing, supplemented by brief testimony from the defendant's wife offered in support of the motion to dismiss. We summarize the facts from the evidence relied on by the district court.

During the evening of April 19 and the early morning hours of April 20, 1986, a small group of people were drinking and playing pool at the home of Michael and Josslyn Volosin, which was located across the street and two houses to the north of David and Pam Guenther's home. Late in the evening three of the men left the party and went to the Guenthers'. One of the men began banging on the Guenthers' car, shouting obscenities, and challenging David Guenther to come out of the house. The men left after Pam Guenther told them her husband was not at home and she was going to call the police. The police arrived, discussed the incident with Pam Guenther, went to the Volosins' home and talked to Josslyn Volosin, and then left.

The events that followed constituted the basis for the criminal charges against the defendant and for the district court's subsequent dismissal of those charges. The witnesses' versions of these events, however, are in substantial conflict with one another. Michael Volosin stated that shortly after the police left he heard a loud noise at his front door. When he saw no one at his door, he ran to the Guenthers' house and knocked on the front door, whereupon Pam Guenther opened the door, grabbed him, threw him out onto the grass, and had him on the ground when her husband came out of the house shooting. Volosin's version was corroborated by Bonnie Smith, a neighbor who had observed the incident from her window. Smith testified that she had seen Pam Guenther standing over a figure lying next to the Guenthers' porch, shouting obscenities and trying to pick the person up off the ground.

In contrast to the account given by Michael Volosin and Bonnie Smith, Pam Guenther testified that when she went to the front door and opened it, Michael Volosin grabbed her, pulled her out the door, threw her against the wall, and began to beat her up. Pam Guenther stated that as she and Michael began struggling, she screamed for her husband to get the gun. It was her further testimony that Josslyn Volosin had appeared and was trying to break up the fight when the sound of gunshots was heard. After Pam Guenther screamed for help, the defendant came to the front door of his house and, from the doorway, fired four shots from a Smith and Wesson .357 Magnum six-inch revolver. The defendant's account of the events was substantially the same as his wife's.

One shot hit and wounded Michael Volosin, who was lying on the ground next to the Guenthers' porch. Robbie Alan Wardwell, a guest of the Volosins, was wounded by a second shot as he was walking across the Guenthers' front yard to help Josslyn Volosin break up the fight. A third shot killed Josslyn Volosin. There was conflicting evidence as to whether she was hit while standing near the Guenthers' front porch or in the street as she was running away.

The district court found that Michael Volosin had made an unlawful entry into the Guenthers' residence and that the defendant had a reasonable belief that Volosin was committing a crime against Pam Guenther and was using physical force against her. The court concluded as follows: that section 18-1-704.5(3) does not simply provide an affirmative defense to criminal charges, but grants immunity from prosecution for the crimes charged; that this statute does not impermissibly interfere with the prosecutor's executive function in determining whether to file criminal charges in a given case; that the statutory immunity applied to charges based on force directed not only against an actual intruder into the Guenthers' home but also to charges based on force directed against other persons involved in the incident who did not enter the Guenther home; that it was the prosecution's burden to disprove beyond a reasonable doubt the facts constituting the basis for the application of the statutory immunity; and that the prosecution had failed to meet its burden. 1 The court accordingly dismissed all the charges against the defendant.


The issues raised on appeal center on section 18-1-704.5, 8B C.R.S. (1986), which became effective on June 6, 1985, and provides as follows:

(1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.

(2) Notwithstanding the provisions of section 18-1-704, 2 any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.

(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.

The People raise alternative arguments in urging a reversal of the district court's order of dismissal. The People argue that section 18-1-704.5(3) does not confer jurisdiction on a court to dismiss a criminal case at the pretrial stage of the case but rather creates, at most, an affirmative defense to be raised and resolved at trial by the trier of fact. Alternatively, the People contend that section 18-1-704.5(3), if construed to authorize a court to dismiss criminal prosecution at the pretrial stage of the case, violates the separation of powers doctrine embodied in article III of the Colorado Constitution by impermissibly infringing on the district attorney's executive authority to determine whether criminal charges should be filed against a particular individual. The People also claim that, even if section 18-1-704.5(3) does authorize a court to enter a pretrial judgment of dismissal on grounds of immunity, the district court improperly construed and applied the statutory criteria for immunity to the facts of this case.

By separate order, we have requested the parties to submit briefs on the following questions: what is the proper procedure to be followed in determining whether a person is entitled to immunity from criminal prosecution under section 18-1-704.5(3); what is the appropriate allocation of the burden of proof on the immunity issue, and what is the particular standard of proof by which that issue should be resolved; and does a denial of a pretrial motion to dismiss on grounds of immunity prohibit the defendant from raising the immunity issue as an affirmative defense at trial, and, if the...

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