People v. Mcneese

892 P.2d 304 (1995)

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Nature of the Case

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Facts

Vivian Daniels decided to stay with McNeese (D) as she was not getting along with her husband. Vivian agreed to pay D $50 per month on the condition that John, her husband was not allowed into the apartment. D was an Afro-American and John did not like them and was prone to violence after drinking. Eventually, D made sexual advances at Vivian and Vivian decided to move. She went immediately to John's apartment six blocks away without a coat nor any of her belongings. Vivian was let in by Keith Tollefson who shared the apartment with John and when John and a friend, Wessels, returned they decided to get Vivian's things. John and Wessell had been drinking. At 2:30 am they entered the apartment. There was evidence that everyone was drunk and that John, was going to kill that 'fuckin nigger.' John did talk to D at first but eventually put his arm around D's throat applying a choke hold and threatening to kill D if he harmed Vivian. That altercation ended with neither party hurt. Eventually, as Vivian was gathering her possessions, she saw Wessels lying on the floor by the front door and John on the floor near the kitchen, and then D confronted her and stabbed her in the head. She immediately fled the scene and summoned the police. Vivian had no idea what had happened to John and Wessels. Both were stabbed to death. The trial judge ruled that Vivian had a right to be in the apartment as well as Wessels but the entrance of John into the apartment was a violation of the oral lease terms and as such the entry of John was unlawful and that John had inflicted a third-degree assault on D, and that satisfied the requirement that D had committed or intended to commit a crime on the premises. The trial court also held that the physical contact may not have been over and D was justified in fearing that John might use further force against D. The trial court determined that D had satisfied the requirements of the 'make my day' statute and was immune from prosecution. The State appealed. The court of appeals affirmed.