People v. Malczewski, 86SA285
| Decision Date | 05 October 1987 |
| Docket Number | No. 86SA285,86SA285 |
| Citation | 744 P.2d 62 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jerry MALCZEWSKI, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Kurt P. Schulke, Dist. Atty., Robert H. Wheeler, Chief Deputy Dist. Atty., Georgetown, for plaintiff-appellant.
David F. Vela, Colorado State Public Defender, Rachel A. Bellis, Deputy State Public Defender, Denver, for defendant-appellee.
The question on this appeal is whether the district court erred in dismissing criminal charges of second and third degree assault on the basis that the defendant, Gary Malczewski, was immune from prosecution under section 18-1-704.5, 8B C.R.S. (1986), which under certain circumstances grants immunity to an occupant of a dwelling for using physical force against an unlawful intruder. We conclude that there is insufficient evidence to support the statutory conditions for immunity, and we accordingly reverse the judgment and remand the case for further proceedings.
The defendant was charged in a two-count information with second and third degree assault. Count 1 alleged that on November 25, 1984, the defendant, in Clear Creek County, Colorado, knew or reasonably should have known that James Gragg was a police officer and, with intent to prevent the officer from performing a lawful duty, intentionally caused bodily injury to the officer. See § 18-3-203(1)(c), 8B C.R.S. (1986). Count 2 alleged that the defendant on that same occasion knowingly or recklessly caused bodily injury to William Mehrer. See § 18-3-204, 8B C.R.S. (1986). A preliminary hearing was conducted before the Clear Creek County Court, and the county judge determined that probable cause existed and ordered the defendant bound over to the district court.
The defendant filed a motion requesting the district court to dismiss the case on the basis that he was immune from prosecution under the provisions of section 18-1-704.5, 8B C.R.S. (1986). The district court resolved the motion by reviewing the evidence presented at the preliminary hearing, which consisted solely of the testimony of James Gragg, an Idaho Springs police officer.
The preliminary hearing testimony of Officer Gragg established the following facts. Gragg was on routine patrol duty in the early morning hours of November 25, 1984, and was suddenly flagged down by the defendant's wife, Judy Baker. Baker told the officer that her husband had broken into her niece's house and had taken "their baby" (the defendant's and Baker's baby) back to the apartment where Baker lived with the defendant. Baker expressed considerable concern for the safety of the baby, since her husband had been drinking, and she asked for Gragg's assistance in getting her baby back.
Officer Gragg and Baker went to the apartment complex, and Gragg knocked on the apartment door. The defendant came to the door but did not open it. Rather, he opened the screen to the window and asked the officer, who was in full uniform with his badge displayed, why he was there. The officer could hear the baby crying in the background at this time and explained that he and Baker were concerned for the baby's safety and that Baker wanted her baby back.
The defendant refused to let the officer enter the apartment, went to the interior of the apartment, and then returned to the door with the baby in his arms. After the defendant opened the door, Gragg entered the doorway in order to ensure that the door would not be closed on him. While Officer Gragg was discussing the situation with the defendant, the defendant suddenly began beating the officer with one hand while he held the crying baby in his other arm. The officer used his police club on the defendant's legs in an effort to defend himself and to save the baby from any harm. The defendant subsequently knocked Officer Gragg to the floor, put the baby down, and began to hit and kick the officer. William Mehrer, who was in the area and apparently had become aware of a problem at the apartment, came to the officer's assistance in restraining the defendant. Officer Gragg suffered injuries on his head and throat, and Mehrer was also slightly injured in the affray.
After hearing arguments of counsel, the district court determined: (1) that Officer Gragg's entry into the apartment was unlawful; and (2) that the defendant reasonably believed that the officer intended to commit either the crime of kidnapping, § 18-3-302, 8B C.R.S. (1986), or violation of a custody order, § 18-3-304, 8B C.R.S. (1986), after illegally entering the apartment. The court accordingly concluded that the defendant was entitled to statutory immunity from prosecution and dismissed the charges. The People thereafter filed this appeal, claiming that the evidence does not support the statutory conditions for immunity under section 18-1-704.5. 1
Section 18-1-704.5, 8B C.R.S. (1986), states, in pertinent part, 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 [], 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.
In People v. Guenther, 740 P.2d 971 (Colo.1987), we held that when the statutory immunity created by this statute is invoked prior to trial as a bar to criminal prosecution, the burden is on the defendant to establish by a preponderance of evidence that:
(1) another person made an unlawful entry into the defendant's dwelling; (2) the defendant had a reasonable belief that such other person had committed a crime in the dwelling in addition to the uninvited entry, or was committing or intended to commit a crime against a person or property in addition to the uninvited entry; (3) the defendant reasonably believed that such other person might use physical force, no matter how slight, against any occupant of the dwelling; and (4) the defendant used force against the person who actually made the unlawful entry into the dwelling.
740 P.2d at 981. We also addressed in Guenther the effect of the court's ruling on a pretrial motion to dismiss based on section 18-1-704.5:
If, of course, a court finds that the defendant seeking immunity has met the appropriate burden of proof, then the court must grant immunity from prosecution and dismiss the charges to which the immunity bar applies. If, on the other hand, the court determines that the defendant has not met his burden of proof and denies the motion to dismiss the charges, there is nothing in section 18-1-704.5 to suggest that the defendant should somehow be precluded from raising the same statutory conditions for immunity as an affirmative defense to the charges at trial.
* * *
* * *
Thus, if the pretrial motion to dismiss on grounds of statutory immunity is denied, the defendant may nonetheless raise at trial, as an affirmative defense to criminal charges arising out of the defendant's use of physical force against an intruder into his home, the statutory conditions set forth in section 18-1-704.5(2). In such an instance, the burden of proof generally applicable to affirmative defenses would apply to the defense created by section 18-1-704.5(2). The defendant would be required to present some credible evidence supporting the applicability of section 18-1-704.5(2); and, if such evidence is presented, the prosecution would then bear the burden of proving beyond a reasonable doubt the guilt of the defendant as to the issue raised by the affirmative defense as well as all other elements of the offense charged. § 18-1-407, 8B C.R.S. (1986).
Since in the instant case the defendant raised the immunity issue by a pretrial motion to dismiss, it was incumbent upon the defendant to present sufficient evidence to permit a court to find under the preponderance-of-evidence standard that the statutory conditions for immunity were satisfied. Guenther, 740 P.2d at 980-81. It is to that question that we now turn.
The district court expressly found that Officer Gragg's warrantless entry into the defendant's apartment was illegal and that the defendant reasonably believed that the officer, in addition to making the uninvited entry,...
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