People v. McNeese, 92CA0929

• Citation: 865 P.2d 881
• Decision Date: 20 May 1993
• Docket Number: No. 92CA0929,92CA0929
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert Earl McNEESE, Defendant-Appellee. . II
• Court: Court of Appeals of Colorado

Page 881

865 P.2d 881

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert Earl McNEESE, Defendant-Appellee.

No. 92CA0929.

Colorado Court of Appeals,

Div. II.

May 20, 1993.

Rehearing Denied June 17, 1993.

Certiorari Granted Jan. 10, 1994.

Norm S. Early, Jr., Denver Dist. Atty., Nathan B. Coats, Deputy Dist. Atty., Denver, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, Frances Smylie Brown and Stephen M. Flavin, Deputy State Public Defenders, Denver, for defendant-appellee.

Opinion by Judge TURSI.

The People appeal the trial court's order dismissing charges of second degree murder filed against the defendant, Robert Earl McNeese. After a pretrial hearing, the court dismissed the charges pursuant to § 18-1-704.5, C.R.S. (1986 Repl.Vol. 8B) which provides that, under certain circumstances, an occupant of a dwelling using any degree of physical force against an unlawful intruder shall be immune from criminal prosecution. We affirm.

The People argue that, inasmuch as a joint occupant of defendant's apartment had invited the decedent into the apartment, the trial court erred as a matter of law in holding that the decedent's entry into that apartment was unlawful and uninvited. They further argue that the evidence was insufficient to establish by a preponderance of the evidence that the decedent had committed a crime in the dwelling and that he might use physical force against an occupant. We disagree.

Approximately three months before the incident at issue, a woman acquaintance of defendant had moved into his apartment because she and the decedent, her husband, were not getting along. On the night in question, that woman, after resisting defendant's sexual advances, told him that she was going to move out and defendant agreed with that decision.

During her occupancy, the woman paid defendant $50 per month for rent and slept on the living room couch. She was given a key after she moved in and all her belongings were in the apartment. However, defendant had allowed the woman to stay in his apartment only on the condition that she not allow the decedent to enter the apartment. In this regard, the record demonstrates that the decedent knew he was not allowed entry into the apartment. Indeed, he would wave to his wife from the street rather than knock on the door.

On the night that the woman left the apartment, she left without taking any of her belongings and went to the decedent's home. There, she told the decedent of the advances by the defendant. The decedent, who had been drinking, wanted to get her belongings immediately. After agreeing that there would be no arguing or fighting, the woman, the decedent, and his friend returned to the defendant's apartment around 2:30 a.m. to get her belongings. The woman used her key to let them in.

Once inside, the decedent opened defendant's bedroom door, awakened him, and talked to him from the doorway for about three minutes. When the woman asked the decedent to come back to the living room and help her get her things, the decedent returned to the living room and the defendant followed him.

The woman testified that, after leaving for a moment, she returned to see the decedent on the couch with a chokehold around the defendant's throat. According to her testimony, the decedent told the defendant, "If you ever hurt her I will kill you." She further testified that the decedent and defendant wrestled on the couch for two to three minutes and that after they stopped, neither of them seemed hurt, and they were not arguing.

At this point, the woman continued gathering her things in the living room. The next thing she said she saw was both the decedent and his friend lying on the floor. Although both bodies lay within a few feet of where she stood, she claimed not to have heard or seen a thing. The defendant then stabbed her in the head with a knife and she ran from the apartment. She testified that the stabbings occurred about twenty minutes after she, the decedent, and his friend entered the apartment, and between five and ten minutes after the wrestling on the couch.

The defendant did not testify, and thus, the woman's testimony is the only direct evidence of what occurred.

Other testimony, however, revealed that, on the night of his death, the decedent's blood alcohol level was .349 grams per hundred milliliters. Also, he was heard telling his friend as they left to go over to the defendant's apartment, "Let's go kill that fucking nigger." The decedent was known for being a violent drunk, for bragging about killing his best friend, and for despising blacks.

In a bench ruling granting defendant immunity from prosecution, the court found that the woman had lawfully returned to the apartment to retrieve her things. The court also concluded that she had lawful authority to invite the decedent's friend into the apartment under these circumstances; however, the court ruled she was without lawful authority to invite the decedent into the defendant's apartment.

The trial court found that the decedent's entry into the apartment was unlawful because the agreement between the defendant and the woman had prohibited an invitation to decedent to enter the apartment under any circumstances.

The trial court further found that the decedent had inflicted a third degree assault upon the defendant by putting him in a headlock, which when considered in context with the decedent's death threat against defendant, plus his reputation for being rowdy and combative, established a basis for a reasonable belief that he had committed, was committing, or would commit a crime in the apartment.

The trial court also found that any person in "the situation of the defendant would easily expect, and ... would be justified in having the fear that the intruder in this case, [the decedent], might use some further physical force against him, the defendant."

The crux of the People's argument on appeal is that the defendant did not establish that the decedent actually entered defendant's apartment unlawfully. The People argue that since the woman occupying the apartment had invited the decedent into the apartment, and had used her key to enter, the decedent was an invited guest, despite the fact that the terms of her tenancy prohibited his admission into the apartment. We disagree.

Section 18-1-704.5, C.R.S. (1986 Repl.Vol. 8B) states in part:

Notwithstanding the provisions of § 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. (emphasis supplied)

In People v. Guenther, 740 P.2d 971, 981 (Colo.1987), our supreme court interpreted the statute as follows:

The burden is on the defendant seeking the benefit of the statutory immunity 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.

Our primary task in construing a statute is to ascertain and give effect to the intent of the General Assembly. Charnes v. Boom, 766 P.2d 665 (Colo.1988). To discern legislative intent, a court should look first to the statutory language. People v. Warner, 801 P.2d 1187 (Colo.1990). Statutory words and phrases should be given effect according to their plain and ordinary meaning and the statute must be read and considered as a whole. People v. District Court, 713 P.2d 918 (Colo.1986). It is presumed that the General Assembly has knowledge of the legal import of the words it uses and that it intends each part of the statute to be given effect. People v. Guenther, supra.

Had the General Assembly intended to distinguish between an unlawful entry and an uninvited entry, it would have so done. Instead, § 18-1-704 grants immunity to an occupant who uses deadly force against a person who has made "an unlawful entry" into the occupant's dwelling. The statute then by use of the definite article "the" refers back to the unlawful entry as "the uninvited entry."

Here, giving effect to the plain and ordinary meaning of the statutory words and phrases, we conclude that the legislative intent was to use "unlawful entry" and "uninvited entry" interchangeably.

Section 18-4-201(3), C.R.S. (1986 Repl.Vol. 8B) states that: "A person 'unlawfully enters or remains' in or upon premises when he is not licensed, invited, or otherwise privileged to do so." Neither § 18-1-704 nor § 18-4-201 provides for an unlawful invitation.

Furthermore, the People are unable to explain how a lawful entry can be committed by accepting an unlawful invitation. Thus, inasmuch as the woman tenant did not have the authority to invite the decedent to the defendant's apartment, the decedent's entry was both unlawful and uninvited.

Finally, the People contend that the evidence was insufficient to establish that the decedent committed a crime in the dwelling and that he might use physical force against an occupant. We disagree.

The district court found that the decedent had inflicted a third degree assault upon ...