Thursday, August 16, 2018

New COA Ruling Removes Homeowner Exclusivity of Self-Defense in "Make My Day"

Earlier this month, the Colorado Court of Appeals ruled that a trespasser into a home can still assert self-defense against a homeowner if the trespasser did not knowingly trespass.  In People v. Jones, an intoxicated man (Jones) walked into an apartment he believed to be that of a friend.  Unbeknownst to Jones, his friend had moved and he walked into an apartment occupied by several strangers and began to assault one of the occupants.  When the occupants realized Jones was a trespasser, they began to attack him and, after Jones fled the apartment, the occupants followed, tackled and apprehended Jones.  During the melee, Jones stabbed one of the occupants with a knife he was carrying.

At Jones' trial, he asserted an affirmative defense of self-defense with respect to the stabbing, saying he did not attack anyone and was attacked by multiple persons who meant to do him serious bodily injury.  The prosecution argued that Jones was unable to assert such a defense due to the "Make My Day" law protecting homeowners from legal liability when they use force against an intruder.  The court allowed Jones to argue to the jury that he did not know he was trespassing when he entered the apartment and when he realized that he was in the wrong apartment he attempted to flee.  Jones was convicted of felony assault and misdemeanor assault, but was acquitted on charges of attempted murder and burglary. On appeal, the COA ruled that Jones should have received the benefit of an elemental jury instruction which required the jury to find that Jones both unlawfully AND knowingly broke/entered the apartment.  The COA found that this omission constituted reversible error and remanded the case for a new trial.

In its opinion, the COA correctly stated that "The make-my-day statute ... has three elements: (1) an unlawful entry; (2) the occupant’s reasonable belief that the person entering unlawfully has committed, is committing, or intends to commit a crime other than the entry; and (3) the occupant’s reasonable belief that the person entering unlawfully might use physical force against an occupant." But the court went on to point out that  " People v. McNeese, 892 P.2d 304, 310 (Colo. 1995): “[A]n unlawful entry means a knowing, criminal entry into a dwelling.”  As such, a mere trespass may NOT make an entry into a dwelling unlawful!

This is a very important case for those staying abreast of the law pertaining to the use of force, including deadly force.  The "Make My Day" law was conceived to protect homeowners from criminal intruders, NOT mistaken trespassers.  However, the ruling in Jones begs the question of whether a homeowner needs to actually know that the intruder knowingly entered the home for criminal purposes.  The answer of course is no, the homeowner does not need to know the mental basis for the actions of an intruder.  The Jones case is about due process protections of one accused of a crime resulting from a mistaken trespass.  But this case does highlight the importance of prudence and basic caution in using force, especially deadly force, against a trespasser who may have merely made a mistake, which is not uncommon for individuals who are in a state of intoxication as in this case.  Jones is not about whether the occupants had a right to use force against Jones once he showed aggression, but rather whether Jones may have had a right to defend himself in this particular situation. 

There was a dissenting opinion which asserted that McNeese was inapplicable when it came to "Make My Day", improperly placing a burden of proof that the homeowner was aware that the intruder knew his entry was unlawful.  The dissent also asserted that any error regarding the elemental instruction was harmless in light of the myriad of instructions favorable to Jones regarding knowledge, mistake and intoxication as defenses to the crimes charged.  The dissent opined that it was not reasonable to believe the jury was misled or confused regarding the possible defenses asserted by Jones merely because they were not informed that there was a "knowing" element in refuting the "Make My Day" law.

Again, the use of force, particularly deadly force, is not a simple area of the law.  The counsel of an experienced attorney is always of great benefit when attempting to stay abreast of the current legal landscape.