Case could test state’s ‘Make My Day’ legislation
Detectives have privately conceded Sean Kennedy was shot while drunkenly trying to enter what he thought was his apartment, the parents of the man slain in north Colorado Springs on Sunday night said.
Whether that tragedy was criminal remains to be seen. The case could test the boundaries of Colorado's so-called "Make My Day" law that allows home owners to use deadly force in self-defense.
Kennedy, a 22-year-old golf pro in Colorado Springs, became the 25th homicide victim of the year in the city, in what police spokesman Lt. David Whitlock called a "terribly tragic event."
Police, who say Kennedy was trying to break in, say they will defer to the 4th Judicial District Attorney's Office on whether the shooter is protected under the Make My Day law. Their investigation will be completed and sent to the prosecutor's office "no later than the week of Jan. 5," police said in a statement.
Under the law, the occupants of a home may resort to force if someone has entered unlawfully to commit a crime. Kennedy never got inside, police said.
The shooting happened about 10 p.m. Sunday at 3212 Virginia Ave. Kennedy lived in an apartment with the same number, at 3212 N. Institute St., one block to the west in a squat, ranch-style house similar to the one where he was shot.
"He had broken the window and was trying to get in the back door, thinking he was getting in the back of his own house," Kennedy's mother, Lisa Kennedy, said she was told by police. "The detectives agreed from everything we told them and from the way things looked that was pretty much what happened."
Property records indicate the home is owned by James R. Parsons.
Police said two adults were home at the time, but did not provide the name or gender of the shooter. Parsons could not be reached for comment, and no one answered the door on Tuesday. A phone message was not returned.
The Virginia Avenue home has a chain-link fence closing off the backyard. Kennedy's apartment had a wooden privacy fence. Friends said Kennedy had spent the day drinking while watching the Denver Broncos game at a friend's house and was likely in no condition to spot the differences.
Whitlock wouldn't to comment on Lisa Kennedy's account, but acknowledged the case will likely hinge on a homeowner's right to self-defense.
"Obviously, there are several nuances in this investigation," Whitlock said.
David Webster, a defense attorney who spent 10 years as a prosecutor, said that not enough information is available to know if the shooter has a case under the Make My Day law.
"It gets murky if the door is broken but not open," Webster said, adding that it might also depend on whether the resident shot through the door.
Other factors that investigators likely will consider: the age of the residents, their physical size, whether they warned Kennedy to get away and Kennedy's actions and demeanor while he was on the property.
The residents called 911 and reported a burglary in progress, but police have not said how much time elapsed between the call and the shooting.
"The time frame will be key," Webster said. "It sounds like they were trying to do the right thing and get law enforcement there."
The public's heightened awareness of recent home invasion type-robberies has people worried about their safety, he said.
Although some people might suggest that residents retreat into the safest place they can find in the house and hope police arrive before an intruder finds them, Webster said people have "no duty to retreat" under Colorado law.
"The idea behind the Make My Day law is that people should feel secure in their house or home," he said. "Why should a homeowner have to retreat into their home?"
If the Make My Day law doesn't apply, the general self-defense statutes might, Webster said.
While the shooting was debated in public, Kennedy's family mourned.
He is survived by his parents, Grant and Lisa Kennedy, and two older siblings: Travis, 30, and Rebekah, 25.
Friends and relatives gathered at his parents' home Tuesday, remembering Kennedy as a "wonderful kid" who loved hunting and fishing and "would have done anything for anybody," his mother said.
"He was this kind-hearted, courteous young man who loved life," she said. "He loved his Lord, and he's with him now."
Sean Kennedy, who worked as a golf pro at Patty Jewett and Kissing Camels golf courses after graduating from Coronado High School in 2004, never had a professional lesson, Grant Kennedy said. He refined his natural talent on a family ranch in Falcon, where night after night, Sean Kennedy, his father and his brother would drive balls into the pasture until dark.
"The reason he played golf was to get a ranch of his own some day," he said.
The viewing will be from 4 to 8 p.m. Thursday at The Springs Funeral Services, 3115 E. Platte Ave. The memorial service is at 10 a.m. Friday at Woodmen Valley Chapel, 250 E. Woodmen Road, and a burial at Fairview Cemetery, 1000 S. 26th St. After the burial, there will be a potluck at Flying W Ranch, 3330 Chuckwagon Road.
-
Contact the writer: 636-0366 or lance.benzel@gazette.com
Colorado's Homeowners Protection Act
The text of Colorado's Homeowners Protection Act (Colorado Revised Statute number 18-1-704.5 - Use of Deadly Physical Force Against An Intruder), otherwise known as the "Make My Day" Law:
(1) The General Assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.
(2) Notwithstanding the provisions of section 18-1-704, 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.
(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.
(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.
Dead guys address and street view from Google.
http://maps.google.com/maps?hl=en&tab=wl
Shooters address and street view. http://maps.google.com/maps?hl=en&tab=wl
Doesn’t even look close. The drive is on the opposite side and the kid’s house has what looks to be a porch on the left side of the house. I also don’t see house numbers at either address. There are two really good sized trees at the kid’s house. How is it that you’re so drunk that you can’t tell the difference between these two houses but you can get the street address right? Something isn’t adding up.