By Brian Maass

CASTLE ROCK, Colo. (CBS4)– Prosecutors in Colorado’s 18th Judicial District have decided not to file criminal charges against a Castle Rock man who said he accidentally shot his wife inside their home last summer. The DA’s office said Colorado’s “Make My Day” law provided legal justification for the husband, who had been drinking prior to the shooting.

CBS4 obtained a copy of the three-page clearance letter which was authored by Senior Deputy District Attorney Douglas Bechtel on Dec. 11.

“Charging… is not the right or just outcome”, wrote Bechtel, ”Therefore charges will not be filed in this case.”

The heavily-redacted letter does not reveal the name of the man or his wife, who fully recovered from the shooting and “has no lingering effects from this incident.”

The shooting occurred July 27 just after 10 p.m. Police say when they responded to the home they found the wife had been shot in the abdomen. The husband told police he and his wife were in an upstairs bedroom when they heard what they thought were gunshots outside and also thought they heard a noise downstairs.

The husband got a handgun and asked his wife to stay in the bedroom as he went downstairs to the main floor, which was dark.

The wife apparently came downstairs after her husband and crouched “listening for movement.”

The husband said he saw movement inside his home and fired twice, unaware that his wife had come downstairs. Police say a portable breath test indicated the man had been drinking and his alcohol level was .045. In Colorado, a person is legally impaired at .05 and legally drunk at .08.

The prosecutor went on to note that under the Make My Day law, you can use deadly force against an intruder if there is a reasonable belief the intruder has or is going to commit a crime.

The prosecutor notes that even though the husband was mistaken about an intruder, “In simpler terms if the occupant could shoot an intruder, the occupant could shoot a person he mistakenly believes to be an intruder.”

Thus reasoned Bechtel, the husband could use deadly force, even if he was mistaken about the intruder.

“I believe (husband) would be entitled to utilize the Make My Day law against (wife) if he could have exercised it against a real intruder.”

The prosecutor says the couple say there had been no disagreements or arguments. “It is my opinion that (husbands) mistake appears to be genuine. The lack of prior conflict.. all point to a lack of motive or intent. Therefore I believe (husband) would be entitled to utilize the Make My Day law against (wife) if he could have exercised it against a real intruder”.

CBS4 Investigator Brian Maass has been with the station more than 30 years uncovering waste, fraud and corruption. Follow him on Twitter @Briancbs4.

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