People v. Guenther

740 P.2d 971 (1987)

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Nature of the Case

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Facts

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 D's home. Late in the evening three of the men left the party and went to D's home. One of the men began banging on D's car, shouting obscenities, and challenging D 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. 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 D's 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 D's porch, shouting obscenities and trying to pick the person up off the ground. 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, D 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. D's account of the events was substantially the same as his wife's. One shot hit and wounded Michael Volosin. 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 D's' front porch or in the street as she was running away. D was charged in a four-count information with second-degree murder, two counts of first-degree assault and one count of the commission of a crime of violence. D 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 found that Michael Volosin had made an unlawful entry into D's residence and that D 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 D's home but also to charges based on force directed against other persons involved in the incident who did not enter D's 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. The court accordingly dismissed all the charges against D. P appealed.