People v. Zukowski
2010 WL 4241594
Colo. Ct. App.2011Background
- On June 13, 2007, the neighbor (victim) confronted defendant in the neighbor's condominium; defendant then left and returned to jostle the victim's door.
- The victim followed defendant into defendant's condo; defendant emerged from a bedroom swinging a machete, causing head and torso wounds.
- Defendant moved to dismiss the first-degree assault charge arguing immunity under the make-my-day statute; the court denied immunity by preponderance.
- At trial, the jury convicted defendant of first-degree assault and third-degree criminal trespass; sentencing was 21 years’ imprisonment plus mandatory parole.
- On appeal, defendant challenges only the first-degree assault conviction, arguing error in the make-my-day jury instruction.
- The appellate court reverses and remands for a new trial on the first-degree assault charge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of make-my-day instruction on entry knowledge | Zukowski argues instruction misdefines unlawful entry and reflects improper good-faith parsing. | Zukowski contends instruction allowed erroneous belief that entry could be lawful in good faith and unrelated to knowing violation. | Instruction error; new trial required on first-degree assault. |
| Good-faith language and McNeese interpretation | People contends McNeese supports the instruction as to unlawful entry. | Zukowski asserts language misleads the jury about knowing entry and good-faith entry. | Instruction misleads; reversed for new trial. |
| Issue preclusion and law of the case | People asserts previous immunity hearing findings bind the issue. | Zukowski argues preclusion limited re-litigation of unlawful-entry elements at trial. | Not error to submit unlawful-entry issue to jury; no preclusion. |
| Initial aggressor and no retreat instructions | People contends trial court properly instructed on self-defense and no retreat. | Zukowski alleges misinstruction on initial aggressor and seeks deadly-force aspect. | No reversible error; instructions given were proper. |
| Refused jury instructions on scope of invitation and apparent necessity | People argues scope and apparent-necessity principles were adequately covered by existing instructions. | Zukowski contends trial court erred in refusing these tailored instructions. | Court did not err; refusal upheld. |
Key Cases Cited
- People v. McNeese, 892 P.2d 304 (Colo. 1995) (unknowingly entering is not unlawful; knowing entry required)
- People v. Janes, 982 P.2d 300 (Colo. 1999) (make-my-day burden-shifting discussed; good-faith entry concerns)
- People v. Roadcap, 78 P.3d 1108 (Colo. App. 2003) (initial aggressor assessment requires some evidence to instruct)
- Cassels v. People, 92 P.3d 951 (Colo. 2004) (no retreat doctrine clarified)
- Beckett v. People, 800 P.2d 74 (Colo. 1990) (apparent-necessity principle discussed in context of self-defense)