January 19, 2012

Jim Hebenstreit Mesa County Sherriff Suspect: Sean Southwell Case #: 2011-31490

Investigator Hebenstreit, After careful review of the case submission involving Sean Southwell, the District Attorneys Office will not file charges. I reviewed all of the records and reports compiled by the Mesa County Sherriffs Department during the course of their investigation. The investigation was thorough and detectives followed up on all leads. However, there are factual issues which make Mr. Southwell statutorily immune from prosecution under Colorado Law. The following is a brief summary of the relevant facts compiled by the Mesa County Sherriffs Department during their investigation. The summary is not all inclusive. On November 25, 2011, at approximately 10:14 a.m. dispatch received a 911 call from a resident (later identified as Sean Southwell) located at 197 Indiana Street stating that he had shot a burglar who was attempting to enter his home. Deputies responded to the scene and found the body of Jesus Sanchez lying on a concrete slab near the front door of the residence. Sean Southwell informed law enforcement that the gun used in the shooting was secured inside the home. Mr. Sanchez was transported to St. Marys Hospital and pronounced dead on November 25, 2011. Mr. Sanchez sustained a single gunshot wound to the head.

Deputies interviewed Mr. Southwell as well as his roommate William McCabe. Both

individuals gave similar accounts of the events leading up the shooting on November 25, 2011. Deputies learned that the deceased was friends of both Mr. Southwell and Mr. McCabe. Mr. Southwell and Mr. McCabe informed law enforcement officers that there was a recent disagreement between Mr. Sanchez and Southwell/McCabe. Law enforcement learned Mr. Sanchez was visiting Southwell/McCabe on or about November 16, 2011, and forgot his wallet at their residence. On November 21, 2011, Mr. Sanchez accused Southwell/McCabe of using his credit card and charging approximately $50.00 without his consent. Southwell and McCabe both denied any illegal or unauthorized use of Mr. Sanchezs credit card. On November 22, 2011, Mr. Sanchez confronted Mr. Southwell in the front entry of his home about the charges. During the verbal confrontation, Mr. Sanchez struck Mr. Southwell about the face. Mr. Southwell closed the door on Mr. Sanchez who then left the property. On November 25, 2011, Mr. McCabe was awoken by Mr. Sanchez pounding/kicking the front door of the residence. Mr. Sanchez was visibly upset and yelling at the residents. McCabe and Southwell approached the front door and told Mr. Sanchez to leave. Mr. Sanchez refused and continued to kick and strike at the front door causing damage to the door. Mr. Sanchez punched a hole through the glass window of the front door and attempted to reach in to unlock the deadbolt. Mr. McCabe struck Mr. Sanchez on the arm with a baseball bat in an attempt to prevent him from entering the home. Mr. Southwell, standing inside the residence warned Mr. Sanchez that he had a gun, pointed it at him and told him to leave. Mr. Sanchez asked Mr. Southwell if he was going to shoot him. Mr. Southwell told Mr. Sanchez he would shoot him if he tried to enter his home. Mr. Sanchez reached through the window, unlocked the dead bolt and pushed the door open. Mr. Sanchez appeared as if he was either reaching into his pocket for a weapon or preparing to throw a punch when Mr. Southwell shot him one time in the head. Law enforcement contacted several neighbors within the area in an effort to corroborate the information provided by Southwell and McCabe. Law enforcement interviewed Robyn Branscom who lives in the home directly across from 197 Indiana Street. Ms. Branscom told law enforcement that she was outside cleaning the interior of her car when she saw a male pull up in a truck and approach 197 Indiana Street. The man, identified as Jesus Sanchez, started out knocking on the front door until he became agitated and started kicking and pounding on the door. Mr. Sanchez was yelling comments like Open the door, Let me in, and Come out here bitch. Ms. Branscom stated that Mr. Sanchez was kicking the door so hard that it appeared as if he was going to kick it in. Ms. Branscom noticed that the window to the front door had been broken and Mr. Sanchez was reaching in through the window. It appeared that Mr. Sanchez was attempting to open the door from the inside. Mr. Sanchez was reaching for something in his waistband when she heard a loud pop and Mr. Sanchez fell to the ground. Ms. Branscom believed that Mr. Sanchez was reaching through the window attempting to enter the home when he was shot. There was no weapon found on Mr. Sanchez. The death investigation of Mr. Sanchez was forwarded to the District Attorneys Office

for review of potential charges including Second Degree Murder. Review of the investigation leads me to conclude that charges should not be filed in this case. In order to prove Second Degree Murder, the People must prove beyond a reasonable doubt that Sean Southwell knowingly caused the death of Jesus Sanchez. I find that the elements of second degree murder could be proven. However, under the facts presented here, Mr. Southwell has a viable claim of immunity from prosecution. C.R.S. 18-1-704.5 states that 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. Any occupant of a dwelling using physical force, including deadly physical force shall be immune from criminal prosecution for the use of such force. C.R.S. 18-1-704.5 does not require a lesser degree of force be employed to prevent an unlawful entry into the dwelling of another. In addition, unlawful entry, within meaning of make my day statute, means a knowing, criminal entry into dwelling. I acknowledge that the victims family asserts that Mr. Sanchez had a right to enter the residence of Mr. Southwell in order to collect on the debt he believed was owed. However, I disagree with the victims family. Colorado has adopted many laws which address unlawful entries into dwellings. I believe that Mr. Sanchezs entry into the home of Mr. Southwell was unlawful in nature. Mr. Sanchez did not have a right to enter the home of Mr. Southwell in an attempt to collect a debt, even if the debt was a result of fraud or theft. There is substantial evidence that Mr. Sanchez was verbally confrontational and intimidating toward Mr. Southwell and Mr. McCabe. Mr. Southwell and Mr. McCabe were reasonably concerned for their safety. Mr. Southwell stated that he was concerned that Mr. Sanchez was going to strike him or use a weapon to harm him. The statements by Ms. Branscom support the claims by Mr. Southwell. Ms. Branscom describes Mr. Sanchez as aggressive and confrontational. In addition to the evidence described above, the Defense will be permitted to introduce evidence from the initial confrontation between Mr. Sanchez and Mr. Southwell. Mr. Sanchez struck Mr. Southwell in the mouth during a confrontation over the same issue approximately two days prior to the shooting. This evidence will support the claims by Mr. Southwell that he was in fear for his safety. Based upon the evidence compiled during the course of this investigation, I find it difficult, if not impossible, to overcome the immunity from prosecution claim for Use of Deadly Force Against an Intruder. For the reasons stated above, the People will not file charges

regarding the death of Jesus Sanchez. If you have any questions or concerns about the contents of this memo or the District Attorneys position on the matter, please let me know. Sincerely, Mark R. Hand Chief Deputy District Attorney