October 29, 2010

Colorado Court of Appeals decision 10-28-10

People v Zukowski            Make My Day / Jury Instructions           
Synopsis:  After some bitching back and forth between neighbors across the hall, the complaining witness goes to Mr. Zukowski apartment uninvited and enters. Mr. Zukowski comes a-swingin’ a machete at the complaining witness, and struck him in the head and torso. A jury convicted Mr. Zukowski of first degree assault after the trial court denied Mr. Zukowski’s motion to dismiss under Make My Day. The prosecution sought and the trial court granted their request to instruct the jury that Make My Day did not apply if the intruded had a “good faith” belief he could enter. Unsurprisingly, that became the issue on appeal.
Issue: Whether the trial court erred in instructing the jury by informing them that Make My Day did not apply if the complaining witness had a “good faith” belief that he was not breaking a criminal law?
Held: Yes. Case reversed and remanded for new trial.
Reasoning: This language from the Make My Day instruction caused the reversal:
“In order for this affirmative defense to apply, the other person’s unlawful entry into the dwelling must have been made in knowing violation of the criminal law. An entry made in the good faith belief that it is lawful, is not an entry made in knowing violation of the criminal law.” (emphasis in the original opinion)
No where in the make my day statute does that language exist, as the Court of Appeals noted. The CoA simply reasoned that putting the onus on someone faced with an unlawful entry to decide whether the intruder had a “good faith” belief when making the unlawful entry is too great, and not required by policy or the statute.  

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