'Make My Day' Defendant Found Innocent
Oct. 22, 1987
BRIGHTON, Colo. (AP) _ A a 34-year-old gunman who claimed he shot three neighbors in self-defense was acquitted Thursday of one count of second-dgree murder and two counts of assault.
David Guenther, 34, of Northglenn had once based his defense on Colorado's ''make my day'' law, which permits the use of deadly force against intruders, but shifted to a conventional self-defense theory for this trial.
Guenther still faces trial for first-degree murder next year for the slaying of his wife - the woman he said he was trying to protect when he shot his neighbors - and the wounding of her male companion earlier this year.
A judge last year dismissed charges against Guenther in the April 19, 1986 shootout, citing the ''make my day'' law. However, the Colorado Supreme Court later ruled that the burden of proof was on the defendant, and ordered Guenther to stand trial for second-degree murder and two counts of first- degree assault.
Adams County District Court Judge Phillip Roan instructed the jury to decide whether Guenther believed he and his family were in danger and that he was acting in self-defense when he fired his pistol. If Guenther believed that he could not use less force to protect his family, then the jury was to find him innocent, the judge said.
''We're going by what the law says, and we used the evidence,'' said juror William Miles, Thornton High School baseball coach.
''It was a nightmare for everyone, and this part of it is over for him (Guenther),'' said defense attorney Robert Pepin.
Adams County District Attorney Jim Smith said he was disappointed, but added, ''I thought it was a pretty good stroke to get the case reversed in the Supreme Court and have it tried before a jury.''
The jury of five women and seven men began considering the case after closing arguments Wednesday.
Josslyn Volosin, 26, was killed by a shot in the heart while her husband, Michael, 27, sustained wounds to the thigh and wrist. Robbie Wardwell, 27, was felled with a bullet in the abdomen during the shooting outside the Guenther home.
Earlier that night, Michael Volosin, Wardwell and their friends, who had been partying at the Volosin home, had been rowdy and raucous in front of the Guenther house across the street.
Defense attorneys argued that Guenther fired his .357-caliber Magnum pistol in self-defense. He was afraid for his life and that of his wife, Pamela, and their two children, public defender Robert Perin told the jury in closing arguments on Wednesday.
Guenther testified Wednesday that he did not intend to kill anyone when he opened fire from his doorway, but that he wanted to protect his wife. He said he had been asleep when his wife screamed to him from outside to ''Get the gun, David.''
''All I wanted to do was help her,'' Guenther told the jury. ''I thought people with weapons were hurting her real bad. I was even worried about someone coming in to get me.''
The 6-foot-5, 280-pound Guenther held the weapon that killed Mrs. Volosin and demonstrated from the witness stand how he fired the shots. He testified he had no time to think or to aim. ''I just thought I did what was best at the time,'' he said.
Prosecutor Steven Bernard said in his closing statement to the jury, ''It's science fiction that he didn't know that someone might die when he aimed that gun at them.''
Court officials said the murder weapon disappeared from the courtroom during Wednesday's lunch break. The prosecution replaced the pistol with a replica, and Roan said the jury would not be told of the switch.
Guenther faces a charge of first-degree murder in the death of his wife and a charge of attempted first-degree murder for wounding her boss outside a Commerce City restaurant. That trial is set for March 14.
When it ruled in the case, the Colorado Supreme Court held that the ''make my day'' law, enacted in 1985, applied only if:
- Another person made an unlawful entry into the defendant's dwelling.
- The defendant had a reasonable belief that the intruder had committed a crime in the dwelling besides the uninvited entry.
- The defendant believed the intruder might use physical force against an occupant of the dwelling.
- The defendant used force against the person who actually made the unlawful entry, and not against people who did not enter the dwelling.
In July, 29-year-old David Lopkoff of Golden became the first person to successfully assert the ''make my day'' law in his defense. He was acquitted of the stabbing death of 27-year-old Marcello Lafitte in Lopkoff's apartment.