## Facts

- Robert Earl McNeese was charged with homicide and assault offenses arising from a stabbing incident inside his apartment involving John Daniels, David Wessels, and Vivian Daniels.
- After a preliminary hearing, the county court bound McNeese over for trial on two counts of second-degree murder, attempted first-degree murder, and first-degree assault.
- McNeese moved in district court to dismiss on the ground that he was immune from prosecution under Colorado’s “make-my-day” statute, § 18-1-704.5, C.R.S.
- The district court held an evidentiary hearing and granted the motion only as to one homicide charge (the killing of John Daniels), while allowing the remaining charges to proceed.
- The prosecution appealed, and the case reached the Colorado Supreme Court on certiorari review concerning the proper handling of the statutory immunity claim.

## Issues

1. What procedure and burden of proof govern a defendant’s pretrial claim of immunity from prosecution under § 18-1-704.5, including whether the trial court must resolve disputed facts and enter findings on each statutory element.
2. Whether the lower courts properly applied § 18-1-704.5’s requirements—particularly “unlawful entry” and the occupant’s “reasonable belief” predicates—when granting partial immunity.

## Decision

- The Colorado Supreme Court reversed the judgment of the court of appeals.
- The court held that the lower courts used an incorrect approach by failing to require and supply sufficient findings of fact and conclusions of law on the statutory elements governing immunity.
- The case was remanded to the court of appeals with directions to remand to the district court to make findings and conclusions consistent with the opinion or to conduct a further or new evidentiary hearing on immunity.
- The court did not finally determine whether McNeese was entitled to immunity; it required reconsideration under the proper framework.

## Legal Principles

- Section 18-1-704.5 creates immunity from criminal prosecution, not merely an affirmative defense, when force is used “in accordance with” the statute’s conditions.
- Immunity under § 18-1-704.5 must be decided before trial, and a defendant asserting immunity must establish the statutory requirements by a preponderance of the evidence at an evidentiary hearing.
- The trial court must resolve factual disputes at the immunity stage and enter explicit findings of fact and conclusions of law addressing each statutory element, including:
  - whether there was an unlawful entry into the dwelling;
  - whether the occupant reasonably believed the intruder committed, was committing, or intended to commit an additional crime beyond the entry; and
  - whether the occupant reasonably believed the intruder might use any physical force, no matter how slight, against an occupant.
- A grant or denial of immunity cannot rest on an incomplete or unclear record; the court must articulate how the evidence satisfies (or fails to satisfy) the statute’s predicates.

## Conclusion

The Colorado Supreme Court required trial courts to conduct a meaningful pretrial adjudication of make-my-day immunity by placing the preponderance burden on the defendant and mandating explicit findings and conclusions on the statute’s elements, remanding for proper factfinding rather than deciding immunity on the existing record.


People v. McNeese, 892 P.2d 304 (Colo. 1995)