People v. McNeese

• Decision Date: 13 March 1995
• Docket Number: No. 93SC450,93SC450
• Citation: 892 P.2d 304
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Robert Earl McNEESE, Respondent.
• Court: Colorado Supreme Court

Page 304

892 P.2d 304

The PEOPLE of the State of Colorado, Petitioner, v. Robert Earl McNEESE, Respondent.

No. 93SC450.

Supreme Court of Colorado,

En Banc.

March 13, 1995.

Rehearing Denied April 17, 1995.

A. William Ritter, Jr., Dist. Atty., Second Judicial Dist., Nathan B. Coats, Chief Appellate Deputy Dist. Atty., Denver, for petitioner.

David F. Vela, State Public Defender, Frances Smylie Brown, Chief Deputy State Public Defender, Denver, for respondent.

Justice ERICKSON delivered the Opinion of the Court.

We granted certiorari to review People v. McNeese, 865 P.2d 881 (Colo.App.1993). We reverse and return this case to the court of appeals for remand to the district court to make findings of fact and conclusions of law consistent with this opinion or to conduct a further or new hearing.

The defendant, Robert Earl McNeese, was charged with first-degree murder, ¹ attempted first-degree murder, ² and first-degree assault. ³ After a preliminary hearing, the county court bound the defendant over for trial on two counts of second-degree murder. ⁴ The defendant was also bound over for trial on the attempted first-degree murder and first-degree assault charges arising out of the stabbing of Vivian Daniels. Defendant pleaded not guilty and filed a motion to dismiss in the district court, alleging that he was immune from prosecution under the "make-my-day" statute, section 18-1-704.5, 8B C.R.S. (1986). ⁵ Section 18-1-704.5 provides Use of deadly physical force against an intruder.

(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.

(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.

(Emphasis added.)

Following a pretrial hearing, the trial judge granted the defendant's motion to dismiss the second-degree murder charge for the stabbing death of John Daniels. The defendant's motion to dismiss the charges of second-degree murder of Wessels and attempted first-degree murder and first-degree assault of Vivian Daniels was denied.

I

Vivian Daniels testified that she was not getting along with John Daniels, her common-law husband, and was looking for a place to stay. ⁶ She contacted the defendant and asked whether she could stay in his apartment and sleep on his couch. The apartment contained a small bedroom, a bathroom, and a combined living room and kitchen. Vivian Daniels moved into the defendant's apartment after agreeing to pay rent and on the condition that John Daniels was not to enter or come into the apartment under any circumstances. The defendant is an African-American, and the testimony established that John Daniels had a reputation for not liking African-Americans and was prone to violence, especially after he had been drinking. Vivian Daniels told the defendant that John Daniels had killed another man. ⁷ John Daniels knew that the defendant did not want him in the apartment.

Vivian Daniels agreed to pay the defendant $50 a month for rent and to contribute funds for her share of the food. The defendant gave her a key shortly after she moved in, and she kept her clothes, television, art work, bedding, fan, and cat in the apartment. John Daniels never entered the apartment and would wave from across the street or knock on the window when he wanted to see his wife.

On November 15, 1991, approximately three months after moving into the apartment, Vivian Daniels and the defendant spent the day drinking at various bars. When they returned to the apartment, the defendant made sexual advances and Vivian Daniels decided to move. The defendant agreed that she should move out. She left the defendant's apartment at 11:30 p.m. on a cold, snowy night without a coat or any of her belongings. She went to John Daniels' apartment, which was about six blocks away.

Keith Tollefson, who shared the apartment with John Daniels, let her in, and she slept on a couch until John Daniels returned. John Daniels and David Wessels had both been drinking heavily at a number of bars and, when they returned to the apartment, they were told of the sexual advances made by the defendant. They decided to get Vivian Daniels' clothes and possessions from the defendant's apartment. John Daniels told Vivian Daniels there would be no violence. However, a defense witness testified he overheard John Daniels say to Wessels, in the presence of Vivian Daniels just before they left to go to the defendant's apartment, "let's go kill that fuckin' nigger." Vivian Daniels denied that John Daniels made such a statement to David Wessels. John Daniels had a blood alcohol level of .349, and Wessels had a blood alcohol level of .188. Vivian Daniels admitted that she was drunk. At approximately 2:30 a.m., John Daniels, Vivian Daniels, and Wessels entered the defendant's apartment using Vivian Daniels' key.

The defendant was in his bedroom asleep. When John Daniels went to get his wife's clothes out of the closet located immediately outside of the bedroom, he opened the defendant's door and talked to the defendant from the doorway. After Vivian Daniels asked her husband to help her collect her belongings, he returned to the living room and the defendant followed. Vivian Daniels went to the defendant's bedroom to get her pillow, and, when she returned to the living room, John Daniels was on the couch with his arm around the defendant's throat applying a chokehold and threatening to kill the defendant if he harmed Vivian Daniels.

The altercation ended after approximately two or three minutes. Vivian Daniels testified that neither the defendant nor John Daniels was hurt, and they were not arguing.

Vivian Daniels was gathering her possessions when she saw Wessels lying on the floor by the front door and John Daniels on the floor near the kitchen. The defendant confronted Vivian Daniels and stabbed her in the head. She ran from the apartment and called the police. ⁸ Vivian Daniels could not recall anything else. She testified that she did not see, hear, or know what occurred when John Daniels and David Wessels were stabbed to death. ⁹

II

The trial judge centered his analysis on the oral lease agreement between the defendant and Vivian Daniels, and concluded that, since Vivian Daniels was entitled to a three-day notice of eviction, she was authorized to return to the apartment on November 16, 1991. The trial judge also held that she had the right to invite David Wessels into the apartment. However, allowing John Daniels to enter the apartment violated the oral lease agreement between Vivian Daniels and the defendant and made John Daniels' entry into the apartment unlawful.

The trial judge held John Daniels inflicted a third-degree assault on the defendant, and that the assault satisfied the requirement that John Daniels had committed or intended to commit a crime on the premises. See § 18-1-704.5(2) & (3). Also, because the physical contact may not have been over, the trial court held that the defendant was justified in fearing that John Daniels might use further physical force against him. The trial court found that the defendant established immunity from prosecution because he met the requirements of the "make-my-day" statute.

The prosecution appealed the trial judge's order of dismissal pursuant to section 16-12-102, 8A C.R.S. (1994 Supp.). The court of appeals affirmed the trial judge and concluded that the terms "unlawful" and "uninvited" in section 18-1-704.5 were used interchangeably by the General Assembly. People v. McNeese, 865 P.2d at 884. ¹⁰ Judge Tursi, writing for a divided court, concluded that John Daniels' entry was both uninvited and unlawful because Vivian Daniels' oral lease with the defendant denied her authority to invite John Daniels into the defendant's apartment. The court of appeals held that the trial judge did not err in finding that John Daniels inflicted a third-degree assault on the defendant or in finding that the defendant reasonably believed John Daniels might use further physical force against him. Id.

Judge Taubman, in his dissent, asserted the statutory terms "unlawful" and "uninvited" were not interchangeable, and that section 18-1-704.5 required a finding that the entry was both unlawful and uninvited. McNeese, 865 P.2d at 886 (Taubman, J., dissenting). Judge Taubman concluded that John Daniels' entry was unlawful because it violated the terms of Vivian Daniels' tenancy, but was not uninvited since Vivian Daniels "clearly invited the decedent into the apartment, albeit that she was not authorized to make such an invitation." Id. Judge Taubman would have vacated the order of dismissal and would have reinstated the murder charge against the defendant for the stabbing death of John Daniels.

The findings of fact and conclusions of law of the trial judge were based on an erroneous interpretation of the elements that must be proven to obtain immunity under section...