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People v. Jones

Court of Appeals of Colorado, Sixth Division

August 9, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Gregory Ray Jones, Defendant-Appellant.

          City and County of Denver District Court No. 14CR1481 Honorable Elizabeth A. Starrs, Judge

          Cynthia H. Coffman, Attorney General, Elizabeth Ford Milani, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Michael J. Sheehan, Centennial, Colorado, for Defendant-Appellant

          OPINION

          HARRIS, JUDGE

         ¶ 1 Gregory Ray Jones was convicted of assault after he entered an apartment occupied by four young men and a physical altercation ensued.

         ¶ 2 At trial, he argued that he had mistakenly entered the apartment and had used force against the homeowners only in self-defense. Finding there was some evidence to support Jones's theory of defense, the court gave a self-defense instruction, explaining that a person is entitled to use force to defend himself against any unlawful use of force.

         ¶ 3 But the court also instructed the jury that, under Colorado's "make-my-day" statute, a homeowner has the right to use any degree of physical force against a person who makes an "unlawful entry" into the home. In other words, where the make-my-day statute applies, the homeowner's use of force is necessarily lawful and therefore a trespasser has no right to use self-defense.

         ¶ 4 On appeal, Jones argues that the make-my-day instruction was overly broad. He says the trial court erred in failing to instruct the jury that only a "knowingly" unlawful entry, rather than a mistaken entry, triggers the statute. He contends that the court's error allowed the jury to determine that even a mistaken entry gave the homeowners the exclusive right to use force during the altercation which, in turn, prevented the jury from properly considering his claim of self-defense.

         ¶ 5 We agree and, because we conclude that the error was not harmless, we reverse Jones's conviction and remand for a new trial.

         I. Background

         ¶ 6 Late one night, in March 2014, Jones opened the unlocked door of an apartment located in a large, gated apartment complex. He turned on the hall light and walked into one of the bedrooms.

         ¶ 7 The apartment was occupied by two brothers, Daniel and Ruben Peacemaker, and the brothers' two cousins (the homeowners). Jones and the homeowners had never met each other, and the homeowners all characterized Jones's entry into the apartment as a "completely random" occurrence.

         ¶ 8 It turned out that Jones's cousin lived in an apartment at the complex. Sometime in the previous year, the cousin had moved to a different apartment in the same complex. According to the testimony of various witnesses, the apartment complex was laid out in a confusing way: the five buildings all looked alike, and neither the buildings nor the apartments were numbered sequentially. One of the police officers who responded to the scene got lost looking for the homeowners' apartment. He testified that the complex was "really confusing" because the "numbers are labeled really odd," and that a person would "really have to spend a lot of time in that complex so that [he] would remember which building is which."

         ¶ 9 Jones had visited his cousin at the complex on multiple occasions, sometimes late at night. But on that night in March 2014, Jones had been drinking. His wife estimated that the couple started drinking at 6:00 that evening and that Jones drank about five glasses of brandy before she went to bed. When Jones woke her up at around 2:00 a.m. to tell her a joke, she thought he was drunk.

         ¶ 10 About an hour later, after parking his car at roughly the midpoint between his cousin's former and current apartments, Jones walked into the homeowners' apartment.

         ¶ 11 One of the occupants, a cousin, was sleeping on the couch. He heard Jones come in and turn on the light, but he assumed - because the person who had entered acted as though he "belonged there" and was not "somebody who was busting into the place" - that it was one of the Peacemaker brothers coming home late from work.

         ¶ 12 Jones walked past the cousin on the couch and through the open bedroom door where Daniel Peacemaker was sleeping. According to Daniel's testimony, he woke up to find Jones on top of him, punching him repeatedly in the head. Daniel yelled, then rolled out of bed, and both men fell to the floor, where Jones continued to punch Daniel.

         ¶ 13 The cousin on the couch heard Daniel yell and ran into the bedroom. He saw that Daniel, who was bleeding, had Jones "pinn[ed] against the wall," and that the two men were punching each other. He ran over and punched Jones "as hard as [he] could" in the face.

         ¶ 14 The other cousin arrived in the bedroom at almost the same time. He started punching Jones, as many times as he could, to try to knock him down. The fighting between Jones and the three men was "really fast, really aggressive"; there were "fists flying from everyone."

         ¶ 15 But within ten or fifteen seconds, the fight started to move out of the bedroom. Jones was "shuffling" with his back to the wall, moving toward the hallway, while he swung at the three men. One cousin described it as Jones "trying to fight his way out" of the apartment. But the homeowners "weren't letting him get out."

         ¶ 16 Eventually, though, Jones moved into the hallway. Daniel grabbed Jones's hoodie to try to prevent him from leaving, and Jones tripped near the front door. As he tripped, Jones dropped a knife on the floor. He then "slipped out the door."

         ¶ 17 Daniel's brother, Ruben, who had woken to the commotion just before Jones ran out of the apartment, chased Jones out the front door, with one of the cousins in tow. Ruben and the cousin caught up with Jones, tackled him to the ground, and detained him until police arrived a few minutes later.

         ¶ 18 It was not until after Jones had left the apartment that Daniel realized he had been stabbed. He sustained injuries to his ears, neck, shoulders, and arm. One cousin also sustained less serious injuries.

         ¶ 19 Jones was charged with burglary, attempted first degree murder, and two counts of second degree assault. The jury convicted him of one count of second degree assault and one count of third degree assault, but acquitted him of the attempted murder and burglary charges.

         II. Jury Instructions

         ¶ 20 At trial, Jones argued that he had entered the apartment by mistake. Then, when the homeowners used force against him, he justifiably defended himself, using the knife he carried for protection.[1]

         ¶ 21 The court gave two instructions relevant to the issue on appeal: a self-defense instruction, requested by Jones, and an instruction pursuant to section 18-1-704.5, C.R.S. 2017, known as the "make-my-day" statute, requested by the prosecution.

         ¶ 22 The self-defense instruction allowed the jury to acquit Jones of the assault charges if it found that Jones had used physical force to defend himself from the use of unlawful physical force by the homeowners. The make-my-day instruction, however, directed the jury that, if the statutory elements were met, the homeowners' use of force against Jones was lawful. Thus, because self-defense applies only where the defendant confronts unlawful force, a finding that the make-my-day statute applied would necessarily negate Jones's defense.

         ¶ 23 On appeal, Jones contends that the trial court erred in instructing the jury that the make-my-day statute is triggered upon any unlawful entry into a dwelling, rather than upon a "knowingly" unlawful entry. The error, Jones says, meant that the jury could have concluded that the make-my-day statute applied even though Jones's unlawful entry into the homeowners' apartment was mistaken or accidental, not "knowing." As a result, he argues, the erroneous make-my-day instruction negated his otherwise valid claim of self-defense.

         A. Standard of Review

         ¶ 24 A trial court has a duty to instruct the jury correctly on the applicable law. People v. Pahl, 169 P.3d 169, 183 (Colo.App. 2006). We review jury instructions de novo to determine whether the instructions as a whole accurately informed the jury of the governing law. People v. Lucas, 232 P.3d 155, 162 (Colo.App. 2009).

         ¶ 25 We review a preserved objection to a jury instruction for harmless error. People v. Garcia, 28 P.3d 340, 344 (Colo. 2001). A jury instruction error is not harmless when the error permits the jury "to hold [the] defendant to a higher standard in establishing self-defense than is required by law." People v. Ferguson, 43 P.3d 705, 708 (Colo.App. 2001).

         B. Affirmative Defense of Self-Defense

         ¶ 26 Under section 18-1-704(1), C.R.S. 2017, a person has the right to use force to defend himself from the use or imminent use of unlawful physical force by another person, and he may use a degree of force that he reasonably believes is necessary for that purpose.

         ¶ 27 That right is not absolute, however. As relevant here, an "initial aggressor" may use physical force to defend himself only if, after he withdraws from the encounter and effectively communicates to the other person his intent to do so, the other person nevertheless continues the use of unlawful physical force. § 18-1-704(3)(b).

         ¶ 28 As a general matter, though, a person's ability to defend himself - even an initial aggressor's - does not turn on whether he is where he has a right to be. People v. Toler, 9 P.3d 341, 352 (Colo. 2000). "[T]respassers do not forfeit their rights to self-defense merely by the act of trespassing." Id. Thus, a trespasser may use physical force to defend himself where, for example, the occupant of the property confronts him with unlawful physical force. Id. And even an initial aggressor may assert self-defense, irrespective of his status as a trespasser, so long as he "withdraws and communicates as required by the statute." Id.

         ¶ 29 These rules animate the principle that the touchstone of self-defense is a belief that one is defending against the unlawful use of force. People v. Silva, 987 P.2d 909, 915 (Colo.App. 1999). The corollary to that principle is that a person is not justified in using force to defend against another person's lawful use of force.

         C. The Make-My-Day Statute

         ¶ 30 Under the make-my-day statute, any degree of physical force by a homeowner against certain trespassers is lawful. Thus, when the make-my-day statute applies, it operates as a bar to a trespasser's claim of self-defense. See People v. Chirico, 2012 COA 16, ¶ 15.

         ¶ 31 Section 18-1-704.5(2) provides, in relevant part, as follows:

Notwithstanding the provisions of section 18-1-704 [the self-defense statute], 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.

         ¶ 32 The make-my-day statute therefore 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. See People v. Zukowski, 260 P.3d 339, 343 (Colo.App. 2010). Only the first element is at issue here.

         ¶ 33 The "vexing question" of the proper definition of "unlawful entry" was resolved in People v. McNeese, 892 P.2d 304, 310 (Colo. 1995): "[A]n unlawful entry means a knowing, criminal entry into a dwelling." Though the statute does not contain the word "knowingly," the supreme court construed the statute to require a "culpable mental state" because, without such a requirement, the occupant of a dwelling could lawfully use physical force, even deadly physical force, against "any unanticipated or unexpected 'intruder.'" Id. at 311. And surely, the court reasoned, the legislature did not intend the statute to justify the use of physical force against "persons who enter a dwelling accidentally or in good faith." Id. Thus, the statutory language justifies an occupant's use of physical force against another person only when the other person has made "an entry in knowing violation of the criminal law" - that is, when the other person is "knowingly engaging in criminal conduct." Id. at 310-11.

         ¶ 34 Jury Instruction Number 29 instructed the jury that 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 the other elements of the make-my-day statute are established. Over defense counsel's objection, the court declined to add the word "knowingly" to modify the "unlawful entry" element.

         D. McNeese's Definition of "Unlawful Entry" is Not Limited to Immunity Cases

         ¶ 35 The People contend that the supreme court's interpretation of the term "unlawful entry" in the make-my-day statute is limited to cases in which the homeowner, not the trespasser, asserts the affirmative defense of self-defense.[2] We are not persuaded.

         ¶ 36 To be sure, the make-my-day statute can apply outside the immunity context. See People v. Hayward, 55 P.3d 803, 805 (Colo.App. 2002). The question is whether the supreme court intended "unlawful entry" to have a different meaning depending on whether the homeowner or the trespasser is on trial.

         ¶ 37 We begin with the uncontroversial proposition that we are "bound to follow supreme court precedent." In re Estate of Ramstetter, 2016 COA 81, ¶ 40 (quoting People v. Gladney, 250 P.3d 762, 768 n.3 (Colo.App. 2010)). Our obligation takes on even greater import when it comes to statutory interpretation, because our departure from supreme court precedent amounts to an amendment of the statute that the legislature has not approved. See Kimble v. Marvel Entm't, 576 U.S. ___, ___, 135 S.Ct. 2401, 2410 (2015).

         ¶ 38 Nonetheless, the People urge us to abandon the definition of "unlawful entry" articulated in McNeese. They contend the McNeese court adopted the "knowing" element of the "unlawful entry" requirement to temper the statute's grant of immunity to homeowners who use what would otherwise amount to excessive force against trespassers. See 892 P.2d at 310-11. We agree that this concern informed the supreme court's statutory interpretation, at least in part, but the People do not explain why this concern would not be present in cases where an unwitting trespasser is prosecuted and seeks to invoke self-defense.

         ¶ 39 As the McNeese court observed, the make-my-day statute "is similar to self-defense," but is much broader because it justifies deadly physical force, not just physical force, against an intruder, even when the intruder threatens the slightest use of force against the homeowner. Id. at 309. Thus, the court construed the statute to shield the homeowner only when the intruder made a "knowing, criminal entry" into the home. Id. at 310. Otherwise, a homeowner could take advantage of the statute's grant of immunity to use otherwise excessive force against a person who had a good faith belief that he was making a lawful entry. At bottom, the purpose of the "knowing" element is to protect the ...


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