CO 18-3-102. Murder in the first degree

CO 18-3-102. Murder in the first degree

State: Colorado

TITLE 18. CRIMINAL CODE
ARTICLE 3. OFFENSES AGAINST THE PERSON
PART 1. HOMICIDE AND RELATED OFFENSES

C.R.S. 18-3-102 (2016)

18-3-102. Murder in the first degree

(1) A person commits the crime of murder in the first degree if:

(a) After deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person; or

(b) Acting either alone or with one or more persons, he or she commits or attempts to commit arson, robbery, burglary, kidnapping, sexual assault as prohibited by section 18-3-402, sexual assault in the first or second degree as prohibited by section 18-3-402 or 18-3-403 as those sections existed prior to July 1, 2000, or a class 3 felony for sexual assault on a child as provided in section 18-3-405 (2), or the crime of escape as provided in section 18-8-208, and, in the course of or in furtherance of the crime that he or she is committing or attempting to commit, or of immediate flight therefrom, the death of a person, other than one of the participants, is caused by anyone; or

(c) By perjury or subornation of perjury he procures the conviction and execution of any innocent person; or

(d) Under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself, and thereby causes the death of another; or

(e) He or she commits unlawful distribution, dispensation, or sale of a controlled substance to a person under the age of eighteen years on school grounds as provided in section 18-18-407 (2), and the death of such person is caused by the use of such controlled substance; or

(f) The person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the victim.

(2) It is an affirmative defense to a charge of violating subsection (1) (b) of this section that the defendant:

(a) Was not the only participant in the underlying crime; and

(b) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and

(c) Was not armed with a deadly weapon; and

(d) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article, or substance; and

(e) Did not engage himself in or intend to engage in and had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury; and

(f) Endeavored to disengage himself from the commission of the underlying crime or flight therefrom immediately upon having reasonable grounds to believe that another participant is armed with a deadly weapon, instrument, article, or substance, or intended to engage in conduct likely to result in death or serious bodily injury.

(3) Murder in the first degree is a class 1 felony.

(4) The statutory privilege between patient and physician and between husband and wife shall not be available for excluding or refusing testimony in any prosecution for the crime of murder in the first degree as described in paragraph (f) of subsection (1) of this section.

HISTORY: Source: L. 71: R&RE, p. 418, § 1. C.R.S. 1963: § 40-3-102.L. 74: (1)(a) amended, p. 251, § 2, effective January 1, 1975.L. 75: (1)(b) amended, p. 632, § 5, effective July 1; (1)(b) amended, p. 617, § 5, effective July 21.L. 77: (1)(d) amended, p. 960, § 5, effective July 1.L. 81: (1)(d) amended, p. 973, § 4, effective July 1.L. 88: (1)(b) amended, p. 712, § 16, effective July 1.L. 90: (1)(e) added, p. 1006, § 2, effective July 1.L. 92: (1)(e) amended, p. 392, § 20, effective July 1.L. 95: (1)(f) and (4) added, pp. 1221, 1222, § § 2, 3, effective July 1.L. 97: (1)(e) amended, p. 1543, § 11, effective July 1.L. 2000: (1)(b) amended, p. 703, § 28, effective July 1.

Cross references: For affirmative defenses generally, see § § 18-1-407, 18-1-710, and 18-1-805; for the statutory privilege between patient and physician and between husband and wife, see § 13-90-107.

ANNOTATION

I. General Consideration.
II. Elements of Offense.
A. In General.
B. Premeditation.
C. Felony Murder.
D. Extreme Indifference to Life.
III. Trial and Prosecution.
A. In General.
B. Indictment or Information.
C. Evidence.
D. Jury.
E. Instructions.
F. Affirmative Defense.
IV. Verdict and Sentence.

I.GENERAL CONSIDERATION.

Law reviews. For article, “Should Ralph Fleagle Hang?”, see 7 Dicta 10 (Nov. 1929); 7 Dicta 17 (Jan. 1930). For comment on Reppin v. People (95 Colo. 192, 34 P.2d 71 (1934)), see 7 Rocky Mt. L. Rev. 209 (1935). For article, “One Year Review of Criminal Law”, see 34 Dicta 98 (1957). For article, “One Year Review of Criminal Law and Procedure”, see 36 Dicta 34 (1959). For article, “One Year Review of Criminal Law and Procedure”, see 39 Dicta 81 (1962). For comment on Bizup v. People (150 Colo. 214, 371 P.2d 786 (1962)), see 35 U. Colo. L. Rev. 435 (1963). For article, “Homicides Under the Colorado Criminal Code”, see 49 Den. L. J. 137 (1972). For article, “The Jurisprudence of Death by Another: Accessories and Capital Punishment”, see 51 U. Colo. L. Rev. 17 (1979). For note, “Extreme-Indifference Murder: The Impact of People v. Marcy”, see 54 U. Colo. L. Rev. 83 (1982).

Annotator’s note. Since § 18-3-102 is similar to former § § 40-2-1 and 40-2-3, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Section constitutional. Since there is a rational difference expressed by the general assembly between first degree murder and second degree murder, the first degree murder statute is constitutional. People v. Sneed, 183 Colo. 96, 514 P.2d 776 (1973).

No equal protection violation where felony first degree murder carries a greater punishment than aggravated vehicular homicide. These offenses are distinguished by the level of intent, the actus reus (commission or omission), the requirement that the actor operate or drive a motor vehicle for vehicular homicide, and the predicate felonies. People v. Prieto, 124 P.3d 842 (Colo. App. 2005).

This section defines murder. Sawyer v. People, 173 Colo. 351, 478 P.2d 672 (1970).

Murder after deliberation and felony murder are not separate and independent offenses, but only ways in which criminal liability for first degree murder may be charged and prosecuted. People v. Lowe, 660 P.2d 1261 (Colo. 1983); People v. Brown, 731 P.2d 763 (Colo. App. 1986).

Election of theories not required. The prosecution should be allowed to charge multiple theories of first degree murder in separate counts, and it may, but should not be required to, elect among theories after the evidence is closed. People v. Freeman, 668 P.2d 1371 (Colo. 1983).

Defendant can be convicted only of one first degree murder for one killing, as two convictions for one killing would result in enhanced collateral punishment. People v. Lowe, 660 P.2d 1261 (Colo. 1983); People v. Ragland, 747 P.2d 4 (Colo. App. 1987); People v. Fincham, 799 P.2d 419 (Colo. App. 1990).

The rule of lenity prohibits the entry of dual convictions and sentences for felony murder and murder after deliberation when the convictions and sentences are predicated upon the killing of a single victim. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983).

Dual convictions and sentences may not be entered on the murder after deliberation and felony murder counts with respect to a single killing. People v. Freeman, 668 P.2d 1371 (Colo. 1983).

A defendant may not be convicted of both first degree felony murder and first degree murder after deliberation for a single homicide nor may a defendant be convicted of both first degree and second degree murder for the killing of one person. People v. Hickam, 684 P.2d 228 (Colo. 1984).

Double jeopardy prohibits simultaneous convictions for first and second degree murder. A court cannot impose cumulative punishments for the same offense unless the legislature authorizes it to do so. The legislature intended to permit a defendant to suffer only one conviction of murder for the killing of a single victim. Wood v. Milyard, 721 F.3d 1190 (10th Cir. 2013).

General assembly was competent to adopt the definition of murder under this section. Early v. People, 142 Colo. 462, 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960).

The purpose of distinctions in degrees of murder is to fix the punishment which shall be inflicted according to the circumstances in which the murder was committed. Andrews v. People, 33 Colo. 193, 79 P. 1031 (1905).

The general assembly intended that there be two grades of murder. People v. Sneed, 183 Colo. 96, 514 P.2d 776 (1973).

Meaningful distinction intended. The general assembly intended that there be a meaningful distinction between first and second degree murder. People v. Mullins, 188 Colo. 23, 532 P.2d 733 (1975).

The distinctions between this section and § 18-3-103 are not inconsequential and satisfy due process requirements and the informational requirements of § 16 of art. II, Colo. Const. People v. Mendoza, 195 Colo. 19, 575 P.2d 403 (1978).

Second degree murder is lesser included offense. The difference in substance between first degree murder and second degree murder is that first degree murder requires the additional element of premeditation. Since proof of first degree murder necessarily establishes every element of second degree murder, the latter is necessarily a lesser included offense of the former. People v. Gladney, 194 Colo. 68, 570 P.2d 231 (1977), cert. denied, 434 U.S. 1038, 98 S. Ct. 776, 54 L. Ed. 2d 787 (1978).

A conviction for attempted second degree murder cannot merge with a conviction for attempted first degree murder with extreme indifference where the offenses had different victims. People v. Torres, 224 P.3d 268 (Colo. App. 2009).

First degree murder and manslaughter impose different standards of care. As to the distinction between first degree murder and manslaughter, the two statutes impose different standards of care in that the manslaughter statute requires that the cause of death be recklessly done, while in comparison an extreme indifference to human life in the first degree murder statute is clearly a more culpable standard of conduct, especially where necessarily coupled with the additional requirement that there be created a grave risk of death. People v. District Court, 185 Colo. 78, 521 P.2d 1254 (1974).

Nothing in the language of § 18-1.3-401(8)(g) or § 18-3-106 suggests a legislative intent to preempt the felony murder statute. People v. Prieto, 124 P.3d 842 (Colo. App. 2005).

The statutory language in this section and § § 18-3-104 and 18-3-105 creates distinguishable standards which can be fairly applied by jurors. People v. Favors, 192 Colo. 136, 556 P.2d 72 (1976).

Failure to instruct on less serious offense did not deny due process. Failure to instruct on an even less serious offense than second degree murder, in light of the jury’s verdict for the most serious possible offense, first degree murder, does not comport with an inference of prejudice and did not deny the defendant a fair trial. People v. Favors, 192 Colo. 136, 556 P.2d 72 (1976).

No standing to attack constitutionality. In view of the fact that the jury did not convict the defendant under this statute, arguments attacking the constitutionality of this section cannot be properly considered on appeal. People v. Webb, 189 Colo. 400, 542 P.2d 77 (1975).

Where defendant was convicted of reckless manslaughter, robbery, and felony murder, appellate court could choose to give effect to the jury’s finding that the defendant acted knowingly in committing a robbery and that a death occurred in the course of the robbery. The court could appropriately vacate the jury’s finding of reckless manslaughter conviction. People v. Jones, 990 P.2d 1098 (Colo. App. 1999).

Applied in In re Tyson, 13 Colo. 482, 22 P. 810 (1889); Mora v. People, 19 Colo. 255, 35 P. 179 (1893); Schneider v. People, 118 Colo. 543, 199 P.2d 873 (1948); Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962); Segura v. People, 159 Colo. 371, 412 P.2d 227 (1966); People v. Schuemann, 190 Colo. 474, 548 P.2d 911 (1976); Reliford v. People, 195 Colo. 549, 579 P.2d 1145 (1978); Goodwin v. District Court, 196 Colo. 246, 586 P.2d 2 (1978); People v. Campbell, 196 Colo. 390, 589 P.2d 1360 (1978); Goodwin v. District Court, 197 Colo. 6, 588 P.2d 874 (1979); People v. Thompson, 197 Colo. 299, 592 P.2d 803 (1979); People v. District Court, 198 Colo. 70, 595 P.2d 1045 (1979); Gonzales v. District Court, 198 Colo. 505, 602 P.2d 857 (1979); People v. DelGuidice, 199 Colo. 41, 606 P.2d 840 (1979); People v. White, 199 Colo. 82, 606 P.2d 847 (1980); People v. Gallegos, 628 P.2d 999 (Colo. 1981); People v. Williams, 628 P.2d 1011 (Colo. 1981); People v. Botham, 629 P.2d 589 (Colo. 1981); People v. Valencia, 630 P.2d 85 (Colo. 1981); People v. Lee, 630 P.2d 583 (Colo. 1981); People v. Small, 631 P.2d 148 (Colo. 1981); Conston v. People, 633 P.2d 470 (Colo. 1981); People v. Garries, 645 P.2d 1306 (Colo. 1982); People v. Mann, 646 P.2d 352 (Colo. 1982); People v. Fetty, 650 P.2d 541 (Colo. 1982); People v. Simien, 656 P.2d 698 (Colo. 1983); People ex rel. Gallagher v. District Court, 656 P.2d 1287 (Colo. 1983); People v. Castro, 657 P.2d 932 (Colo. 1983); People v. Fish, 660 P.2d 505 (Colo. 1983); People v. McCall, 662 P.2d 178 (Colo. 1983); People v. Moore, 701 P.2d 1249 (Colo. App. 1985), cert. denied, 706 P.2d 802 (Colo. 1985); People v. Bowman, 738 P.2d 387 (Colo. App. 1987).

II.ELEMENTS OF OFFENSE.

A. In General.

Degrees of murder distinguished. The distinguishing feature between murder in the first degree and murder in the second degree is that to constitute murder in the first degree the jury must find “premeditation”, but if said fact is not found, it is murder in the second degree. Kent v. People, 8 Colo. 563, 9 P. 852 (1885); Carlson v. People, 91 Colo. 418, 15 P.2d 625 (1932).

Proof of killing alone is not murder. Proof of the mere abstract fact that the accused killed the deceased will not sustain a guilty verdict of first or second degree murder based on instructions thereto. Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).

First degree murder is the deliberate and premeditated killing of a human being. Washington v. People, 158 Colo. 115, 405 P.2d 735 (1965), cert. denied, 383 U.S. 953, 86 S. Ct. 1217, 16 L. Ed. 2d 215 (1966).

Murder in the first degree, other than in the commission of a felony, is the deliberate and premeditated killing of a human being. Hinton v. People, 169 Colo. 545, 458 P.2d 611 (1969), cert. denied, 397 U.S. 1047, 90 S. Ct. 1375, 25 L. Ed. 2d 659 (1970).

To constitute murder under a statute, it is necessary that the killing be done in the mode described by the statute. Kent v. People, 8 Colo. 563, 9 P. 852 (1885).

First degree murder is a specific intent crime; the prosecution must establish not only that the defendant intended to cause the death of another person, but that he acted after deliberation. People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996).

First degree murder statutes contain rationally different elements than first degree assault statute, § 18-3-202, and thus a defendant sentenced under the former and not the latter was not denied equal protection of law. People v. Brewer, 720 P.2d 596 (Colo. App. 1985).

Culpability cannot be determined on basis of presumption. The essential culpability for first degree murder cannot be determined on the basis of a presumption of law; rather, the requisite culpability must be proven as a matter of fact. People v. Madson, 638 P.2d 18 (Colo. 1981).

Generally, the crimes of second degree murder and attempted second degree murder are, respectively, lesser included offenses of first degree murder or attempted first degree murder under any theory and second degree murder is a lesser included offense of first degree murder by extreme indifference. People v. Rodriguez, 888 P.2d 278 (Colo. App. 1994).

Attempted first degree assault is not a lesser included offense of attempted first degree murder after deliberation. Attempted first degree assault requires that a defendant act with the intent to cause serious bodily injury to another person by means of a deadly weapon. Use of a deadly weapon is not an element of attempted first degree murder after deliberation. People v. Beatty, 80 P.3d 847 (Colo. App. 2003).

Illegal discharge of a firearm is not a lesser included offense of attempted first degree murder after deliberation. Discharge of a firearm is not an element of attempted first degree murder after deliberation. People v. Beatty, 80 P.3d 847 (Colo. App. 2003).

The crime of child abuse causing death as a result of a pattern of conduct is not a lesser included offense of first degree murder of a child under the age of twelve by one in a position of trust under subsection (1)(f). People v. Friend, 2014 COA 123M, — P.3d –.

Second degree murder is a lesser included offense of first degree murder as well as the associated attempt offenses. Brown v. People, 239 P.3d 764 (Colo. 2010).

It is not necessary to prove a motive as an essential element in the crime of murder. Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956).

Proof of motive is not an essential part of the state’s case in a murder prosecution. People v. Spinuzzi, 149 Colo. 391, 369 P.2d 427 (1962), overruled on other grounds in People v. Kirkland, 174 Colo. 362, 483 P.2d 1349 (1971).

Death in course of unjustified arrest by private person. A private person who, without any excuse or justification, in order to accomplish the arrest of another not shown to have been guilty of any crime, shoots, merely intending to wound, is guilty of murder if the shot takes fatal effect. Demato v. People, 49 Colo. 147, 111 P. 703 (1910).

Defendant must take his victim as he finds him, and it is no defense that the victim is suffering from physical infirmities. Hamrick v. People, 624 P.2d 1320 (Colo. 1981).

Although an inconsistency exists between jury verdicts for attempted first degree murder and those for first and second degree assault under the heat of passion, the inconsistency does not require reversal because the existence or absence of heat of passion is not a necessary element of either assault charge. People v. Sanchez, 253 P.3d 1260 (Colo. App. 2010).

Defendant can possess the intent to cause death, serious bodily harm, and bodily harm at the same time. Therefore, jury’s guilty verdicts for attempted first degree murder and first degree assault based on defendant’s stabbing of one person and the jury’s guilty verdicts for attempted first degree murder and second degree assault based on defendant’s stabbing of a second person are not necessarily inconsistent. People v. Sanchez, 253 P.3d 1260 (Colo. App. 2010).

Guilty verdicts for both attempted after deliberation first degree murder and attempted extreme indifference first degree murder did not require inconsistent findings of fact; therefore, the sentences were not illegal. The information alleged different victims for the different charges, so it is not inconsistent to conclude that defendant had the specific intent to take the life of the specific targets and also showed an extreme indifference to life in general as to the other persons. People v. Stovall, 2012 COA 7M, 284 P.3d 151.

B. Premeditation.

Law reviews. For note, “The Role of Mental Disorder in Showing the Absence of Premeditation and Deliberation in Murder Trials”, see 29 Rocky Mt. L. Rev. 396 (1957).

Annotator’s note. Most of the cases cited below were decided prior to the 1974 amendment of this section, which substituted “After deliberation and with the intent” for “with premeditated intent” in paragraph (a) of subsection (1).

Premeditation required. Prior to the 1975 amendment, to be guilty of murder of the first degree a person had to not only be sane, but in killing he had to have acted with premeditation. Ingles v. People, 92 Colo. 518, 22 P.2d 1109 (1933).

In order to make out first degree murder under this section, other than in the commission of a felony, there was the requirement of a premeditated killing. Watkins v. People, 158 Colo. 485, 408 P.2d 425 (1965).

To be convicted of murder, the state must prove deliberation and intent to cause death. People v. Robinson, 874 P.2d 453 (Colo. App. 1993).

Premeditation directed against one other than victim sufficed. If a shot was fired, without justification, and a killing resulted, the homicide was first degree murder, although the premeditation was directed against one other than the person actually killed. Ryan v. People, 50 Colo. 99, 114 P. 306 (1911).

“Premeditated intent” and “intentionally, but without premeditation” are sufficiently different elements to be a constitutionally acceptable basis for defining two distinct crimes. People v. Pearson, 190 Colo. 313, 546 P.2d 1259 (1976).

Words such as “deliberate” and “premeditated” refer to the intention of the accused at the time of the killing. Hill v. People, 1 Colo. 436 (1872).

They are matters of inference and presumption. Premeditation and deliberation are matters of inference and presumption to be drawn by the jury from the facts and circumstances leading up to, surrounding, and explanatory of the homicide. Van Houton v. People, 22 Colo. 53, 43 P. 137 (1895); Robinson v. People, 76 Colo. 416, 232 P. 672 (1925).

The element of deliberation, like intent, can rarely be proven other than through circumstantial or indirect evidence. People v. Madson, 638 P.2d 18 (Colo. 1981); People v. District Court, 779 P.2d 385 (Colo. 1989); People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996).

Thus, intent may be inferred from act. Premeditation does not require positive proof of an intent prior to the commission of the act, as such prior intent may be inferred from the act. Robinson v. People, 76 Colo. 416, 232 P. 672 (1925).

Intent, like deliberation, can be proven through means other than direct evidence. People v. Juvenile Court, 813 P.2d 326 (Colo. 1991); People v. Valenzuela, 825 P.2d 1015 (Colo. App. 1991), aff’d, 856 P.2d 805 (Colo. 1993).

The fact finder may infer an intent to cause the natural and probable consequences of unlawful voluntary acts. People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996).

Where there is close temporal and spatial relationship between a killing and a subsequent felony, defendant’s intent to commit the underlying felony may be inferred from the circumstances. People v. Phillips, 219 P.3d 798 (Colo. App. 2009).

Malice, premeditation, and deliberation may be inferred from use of a deadly weapon. Hampton v. People, 171 Colo. 153, 465 P.2d 394 (1970); Lopez v. People, 175 Colo. 503, 488 P.2d 892 (1971).

Intent to kill and premeditation may be inferred from the intentional use of a deadly weapon in a deadly manner. Mills v. People, 146 Colo. 457, 362 P.2d 152 (1961), cert. denied, 369 U.S. 841, 82 S. Ct. 869, 7 L. Ed. 2d 846 (1962).

Where evidence established that defendant approached the deceased brandishing a gun after having threatened deceased’s friends, and that a shot was fired killing deceased, the jury could have found premeditation or lack of considerable provocation for killing. People v. Spinuzzi, 149 Colo. 391, 369 P.2d 427 (1962).

Evidence of the manner in which the weapon is used may furnish some proof of the requisite culpability for first degree murder. People v. Madson, 638 P.2d 18 (Colo. 1981).

Use of a deadly weapon is not in itself sufficient to show deliberation. People v. Hamrick, 624 P.2d 1333 (Colo. App. 1979), aff’d, 624 P.2d 1320 (Colo. 1981); People v. Madson, 638 P.2d 18 (Colo. 1981).

The use of a deadly weapon, while not giving rise to a legal presumption of deliberation, may nevertheless be considered, along with other circumstances attending the killing, in determining whether sufficient evidence exists for submission of the issue of deliberation to the jury. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983).

Not from mere blow by hand or fist. A conviction for first degree murder will not stand when the blow was struck on being aroused from sleep, probably in anger, but certainly without plan, deliberation, or premeditation. A blow with a fist and a fortiori with the open hand is not calculated to cause death to a person in good health and of mature age; death is not the natural consequence of such a blow. Stafford v. People, 154 Colo. 113, 388 P.2d 774 (1964).

Flight is not evidence of premeditation and deliberation. Stafford v. People, 154 Colo. 113, 388 P.2d 774 (1964).

Shortness of time between purpose and act immaterial. If one actually forms the purpose to kill another, premeditates upon it before performing the act, and then performs it, he is guilty of murder in the first degree no matter how short the time may have been between the purpose and its execution. Wickham v. People, 41 Colo. 345, 93 P. 478 (1907); People v. Valenzuela, 825 P.2d 1015 (Colo. App. 1991).

Time is not essential if there was a design and determination to kill formed in the mind of the defendant previous to or at the time the mortal wound was given. Van Houton v. People, 22 Colo. 53, 43 P. 137 (1895).

The element of deliberation requires that the decision to commit the act is made after the exercise of reflection and judgment concerning the act; however, the length of time required for deliberation need not be long. People v. District Court, 779 P.2d 385 (Colo. 1989).

Premeditation requires time for one thought to follow another. No particular time need pass in order to establish deliberation and premeditation. The important thing is that there must be at least enough time to permit one thought to follow another. An impulsive killing cannot be first degree murder. The law does not demand that a defendant shall have premeditated for any period of time, but that the defendant shall have committed the act deliberately and with premeditation. Hammil v. People, 145 Colo. 577, 361 P.2d 117, cert. denied, 368 U.S. 903, 82 S. Ct. 182, 7 L. Ed. 2d 98 (1961); Bradney v. People, 162 Colo. 403, 426 P.2d 765 (1967).

The deliberation and formed design need not have existed at the inception of the transaction which finally resulted in the homicide. It matters not how short the interval between the formation of the design and the death if it included the time necessary for one thought to follow another. People v. Spinuzzi, 149 Colo. 391, 369 P.2d 427 (1962), overruled in People v. Kirkland, 174 Colo. 362, 483 P.2d 1349 (1971).

The elements of deliberation and premeditation are established by proof of the formed design to kill, and length of time is not a determinative factor. The only time requirement for deliberation and premeditation within the meaning of the first degree murder statute is an interval sufficient for one thought to follow another. Hinton v. People, 169 Colo. 545, 458 P.2d 611 (1969), cert. denied, 397 U.S. 1047, 90 S. Ct. 1375, 25 L. Ed. 2d 659 (1970).

Appreciable length of time required. Premeditation required that the design to kill precede the killing by an appreciable length of time; but the time need not be long. People v. Duran, 40 Colo. App. 302, 577 P.2d 307 (1978).

The circumstances surrounding a victim’s death may permit the reasonable inference that the defendant had adequate time for the exercise of reflection and judgment concerning the fatal act. People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996).

Intoxication cannot negate “after deliberation” element of first degree murder. “After deliberation” is not part of the culpable mental state required for first degree murder, therefore voluntary intoxication cannot negate this element. People v. Orona, 907 P.2d 659 (Colo. App. 1995) (disapproved in People v. Harlan, 8 P.3d 448 (Colo. 2000)).

For requirement of malice under former statute, see May v. People, 8 Colo. 210, 6 P. 816 (1885); Murphy v. People, 9 Colo. 435, 13 P. 528 (1886); Andrews v. People, 33 Colo. 193, 79 P. 1031 (1905); McAndrews v. People, 71 Colo. 542, 208 P. 486 (1922); Ingles v. People, 92 Colo. 518, 22 P.2d 1109 (1933); Baker v. People, 114 Colo. 50, 160 P.2d 983 (1945); Shreeves v. People, 126 Colo. 413, 249 P.2d 1020 (1952); Kukuljan v. People, 129 Colo. 116, 267 P.2d 1017 (1954); Beckstead v. People, 133 Colo. 72, 292 P.2d 189 (1956); Lutz v. People, 133 Colo. 229, 293 P.2d 646 (1956); Castro v. People, 140 Colo. 493, 346 P.2d 1020 (1959); Smith v. People, 142 Colo. 523, 351 P.2d 457 (1960); People v. Spinuzzi, 149 Colo. 391, 369 P.2d 427 (1962), overruled on other grounds in People v. Kirkland, 174 Colo. 362, 483 P.2d 1349 (1971); Stafford v. People, 154 Colo. 113, 388 P.2d 774 (1964); Balltrip v. People, 157 Colo. 108, 401 P.2d 259 (1965); Ferrin v. People, 164 Colo. 130, 433 P.2d 108 (1967); Gonzales v. People, 168 Colo. 545, 452 P.2d 46 (1969); Hinton v. People, 169 Colo. 545, 458 P.2d 611 (1969), cert. denied, 397 U.S. 1047, 90 S. Ct. 1375, 25 L. Ed. 2d 659 (1970); Hampton v. People, 171 Colo. 153, 465 P.2d 394 (1970); Moya v. People, 174 Colo. 435, 484 P.2d 788 (1971); Lopez v. People, 175 Colo. 503, 488 P.2d 892 (1971); Walker v. People, 175 Colo. 173, 489 P.2d 584 (1971); People v. Morant, 179 Colo. 287, 499 P.2d 1173 (1972).

C. Felony Murder.

Law reviews. For article, “Stretching Liability Too Far: Colorado’s Felony Murder Statute in Light of Auman”, see 83 Den. U.L. Rev. 639 (2005).

Self-defense is not available as an affirmative defense for felony murder. People v. Burns, 686 P.2d 1360 (Colo. App. 1983).

Provision does not violate equal protection. Failure to require proof of a culpable mental state for a conviction of felony murder does not violate equal protection. People v. Morgan, 637 P.2d 338 (Colo. 1981).

Definition of felony murder does not deny due process. Defining felony murder as being of the grade of first degree and as precluding a verdict of second degree does not violate substantive due process. Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962), aff’d, 316 F.2d 284 (10th Cir. 1963).

This section is not unconstitutional in that it defines murder committed in the perpetration of a robbery as murder in the first degree. Early v. People, 142 Colo. 462, 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960).

Or right to jury trial. The claim that this section which classifies murder committed in the perpetration of certain crimes as first degree murder is unconstitutional in that it deprived the accused of his right to a jury trial with respect to the essential element of intent, and is thus in violation of the fourteenth amendment of the constitution of the United States and § 23 of art. II, Colo. Const., is without merit. Early v. People, 142 Colo. 462, 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960).

Or substitute presumption for proof. This section defining murder committed in the perpetration of a robbery as murder in the first degree is a substantive definition of murder and is not unconstitutional as substituting a presumption of malice for proof thereof. Early v. People, 142 Colo. 462, 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960).

The general assembly may provide that a murder committed during the perpetration of robbery is murder in the first degree, and this in no way establishes a presumption as a substitute for proof of a culpable mental state, as the prosecution still has to prove the homicide and all elements of the underlying felony beyond a reasonable doubt. People v. Morgan, 637 P.2d 338 (Colo. 1981).

First degree felony murder is clearly and precisely defined in this section. Sawyer v. People, 173 Colo. 351, 478 P.2d 672 (1970).

The purpose of the felony murder provision was to make every homicide committed in the perpetration or attempt to perpetrate certain felonies murder, which may be punished by death, if the jury so determines, without regard to premeditation. Andrews v. People, 33 Colo. 193, 79 P. 1031 (1905); Robbins v. People, 142 Colo. 254, 350 P.2d 818 (1960); Whitman v. People, 161 Colo. 110, 420 P.2d 416 (1966).

The underlying purpose of the felony murder statute is to imply the element of deliberation where the commission of certain crimes of violence result in a death. People v. Raymer, 626 P.2d 705 (Colo. App. 1980), aff’d, 662 P.2d 1066 (Colo. 1983).

The purpose of the felony murder statute is to hold a participating robber accountable for a nonparticipant’s death, even though unintended, as long as death is caused by an act committed in the course of or in furtherance of the robbery or in the course of immediate flight therefrom. People v. Raymer, 662 P.2d 1066 (Colo. 1983).

Felony murder occurs when a murder is committed in the commission of certain designated felonies. People v. Salas, 189 Colo. 111, 538 P.2d 437 (1975).

There can be no exact measure of time or distance which is dispositive of whether felony murder exists. People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976).

Defendant’s liability for felony murder not terminated upon defendant’s arrest. Phrase “immediate flight therefrom” is set off by commas and is not restricted to defendant’s own immediate flight. Jury may look to the totality of the circumstances to determine when felony murder liability terminates. Murder committed shortly after defendant’s arrest may be a natural and probable consequence of defendant’s actions. People v. Auman, 67 P.3d 741 (Colo. App. 2002), rev’d on other grounds, 109 P.3d 647 (Colo. 2005).

All that is necessary to sustain a charge of felony murder is that a life be taken during the course of a felony in which the defendant was engaged. People v. Scheer, 184 Colo. 15, 518 P.2d 833 (1974).

Any death that results in the course of any type of robbery may serve as a basis for a felony murder conviction. People v. Raymer, 626 P.2d 705 (Colo. App. 1980), aff’d, 662 P.2d 1066 (Colo. 1983).

Defendant may be guilty of felony murder where the death of a security guard occurred while the defendant was in immediate flight from a robbery and where the shooting of the guard was intended to facilitate his flight and enhance his chance of escape, and shots fired by the guard were not an intervening event which caused the guard’s death to be outside of the scope of the felony. People v. Hickam, 684 P.2d 228 (Colo. 1984).

“Acting either alone or with one or more persons” does not define an element of the offense of felony murder, but merely makes clear that guilt results in either case. People v. Bastin, 937 P.2d 761 (Colo. App. 1996).

Specific intent not an element of felony murder. In felony murder, specific intent to take a human life with malice is not an element of the crime. People v. Scheer, 184 Colo. 15, 518 P.2d 833 (1974).

Defendant may be convicted of first degree felony murder where only showing of mental culpability is for the underlying general intent felony. People v. Hickam, 684 P.2d 228 (Colo. 1984).

Participation in felony substituted for mens rea. The felony murder statute substitutes participation in the underlying felony for the mens rea otherwise required to support a murder charge. People v. Priest, 672 P.2d 539 (Colo. App. 1983).

Proof beyond reasonable doubt required of homicide, felony, and connection of both. The prosecution is required to prove the homicide beyond a reasonable doubt and is also required to establish to the same degree of proof the commission of the named felony and the commission of the homicide in the perpetration of the said felony. Early v. People, 142 Colo. 462, 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960); Jones v. People, 146 Colo. 40, 360 P.2d 686 (1961).

A robbery and killing which followed were all part of same transaction where they were so closely connected in point of time, place, and continuity of action as to be one continuous transaction. Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962), aff’d, 316 F.2d 284 (10th Cir. 1963); People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976).

The perpetration of a robbery does not come to an end the split second the victim surrenders his money to the gunman, and most certainly the robbery continues where the robbers are trying to avoid arrest by police officers who are in extremely hot pursuit, and cause the death of an innocent motorist. Whitman v. People, 161 Colo. 110, 420 P.2d 416 (1966).

If defendant was an accessory to aggravated robbery which resulted in murder, it follows that he was guilty of murder. People v. Jones, 184 Colo. 96, 518 P.2d 819 (1974).

Defendant may not be simultaneously convicted of felony murder and the felony on which the felony murder conviction rests. Where a defendant is convicted of multiple felonies, all of which are alleged as the legal predicates for the commission of felony murder, only that felony that most directly contributes to the death of the victim should be vacated. People v. Huynh, 98 P.3d 907 (Colo. App. 2004).

Aggravated robbery is merged in the offense of felony murder and the constitutional protection against double jeopardy precludes conviction for both offenses. People v. Raymer, 626 P.2d 705 (Colo. App. 1980), aff’d, 662 P.2d 1066 (Colo. 1983); People v. Driggers, 812 P.2d 702 (Colo. App. 1991).

Felony murder based on robbery precludes conviction for robbery. The defendant’s conviction of the greater offense of felony murder, predicated as it is upon his killing of the robbery victim, precludes his simultaneous conviction of the lesser included offense of robbery. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983).

There is no logic or reason to preclude a felony murder charge from being based upon a burglary charge that, in turn, is based upon either an intent to assault or an intent to murder inasmuch as both murder and assault are crimes which may underlie a felony burglary. People v. Lewis, 791 P.2d 1152 (Colo. App. 1989); People v. Medina, 260 P.3d 42 (Colo. App. 2010).

Sequence of events is irrelevant as long as sufficient evidence is produced to show that a felony was committed by defendant and that a death occurred during the commission of that felony. People v. Braxton, 807 P.2d 1214 (Colo. App. 1990).

Or for aggravated robbery. Where the defendant’s conviction for felony murder is based upon the causation of the robbery victim’s death during the course of the robbery, a charge of aggravated robbery of the same victim is a lesser included offense of the felony murder charge within the meaning of § 18-1-408 (5)(c). People v. Raymer, 662 P.2d 1066 (Colo. 1983); People v. Guffie, 749 P.2d 976 (Colo. App. 1987).

Subsection (1)(b) is not so limited as to allow conviction only if there is a finding that defendant was committing or attempting to commit the crime at the time he caused the death. A death caused in the furtherance of a robbery or a death caused in the immediate flight from a robbery falls squarely within the edict of this section. People v. Kittrell, 786 P.2d 467 (Colo. App. 1989).

Or for rape. The defendant’s conviction of the greater offense of felony murder, predicated as it is upon his killing of the sexual assault victim, precludes his simultaneous conviction of the lesser included offense of first degree sexual assault. People v. Horton, 683 P.2d 358 (Colo. App. 1984).

Felony murder can be predicated upon an assault directed at the person who was killed. People v. Ager, 928 P.2d 784 (Colo. App. 1996); People v. Medina, 260 P.3d 42 (Colo. App. 2010).

Robbery conviction is not precluded by conviction for murder of another after deliberation. Although a separate judgment of conviction for robbery may not simultaneously exist with a judgment of conviction for first degree murder predicated upon the killing of the robbery victim, there is no such impediment to the entry of both a judgment of conviction for first degree murder based upon the killing of another after deliberation and a separate judgment of conviction for the robbery of the same victim. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983).

Premeditation not an element of felony murder. When the proof is undisputed that the homicide was committed in an attempt to perpetrate robbery which the defendants had conspired to commit, it is not necessary to prove any facts from which malice, deliberation, or premeditation could be inferred. Robbins v. People, 142 Colo. 254, 350 P.2d 818 (1960); Oaks v. People, 161 Colo. 561, 424 P.2d 115 (1967).

A particular or specific intent to kill is not an integrant of murder committed in the perpetration of a robbery. This section makes the taking of human life in an attempt to perpetrate a robbery murder in the first degree without regard to the questions of intent, premeditation, or deliberation. Jones v. People, 146 Colo. 40, 360 P.2d 686 (1961).

To establish that a defendant has committed or attempted to commit a predicate offense to support a felony murder conviction, the prosecution must prove beyond a reasonable doubt all elements of the predicate offense, including the inapplicability of any properly asserted affirmative defense. Doubleday v. People, 2016 CO 3, 364 P.3d 193.

Attempted robbery is a predicate felony for felony murder. People v. Renaud, 942 P.2d 1253 (Colo. App. 1996).

The turpitude of the felonious act supplies the element of deliberation and design to effect death, and, therefore, no express or implied design to effect death is essential; the murder is still of first degree though casual and unintentional. Whitman v. People, 161 Colo. 110, 420 P.2d 416 (1966).

Murder to facilitate escape. Escape from the scene of the underlying felony is part of the res gestae of a crime so that a murder committed to facilitate the flight can be felony murder. People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976).

All forms of escape under § 18-8-208 are predicate offenses for first degree felony murder. The clear and unambiguous language of the statute contemplates an escape penalized as a petty offense as a predicate offense for first degree felony murder. People v. Stovall, 2012 COA 7M, 284 P.3d 151.

All members of a conspiracy to rob are guilty of first degree murder. Where two or more persons conspired to commit a robbery and went to the place where the robbery was to have been committed, armed with deadly weapons, and in an attempt to perpetrate the robbery one of them committed murder, all are guilty of murder of the first degree, whether or not they intended to commit murder. Andrews v. People, 33 Colo. 193, 79 P. 1031 (1905).

If a homicide is committed by one of defendant’s associates while engaged in a robbery in furtherance of a common purpose, defendant is guilty of murder in the first degree. Abshier v. People, 87 Colo. 507, 289 P. 1081 (1930).

If a defendant and an accomplice were participating in a robbery during the commission of which the accomplice killed the deceased, the defendant is guilty as a principal. If there is direct evidence of the crime, he is subject to the death penalty. Mitchell v. People, 173 Colo. 217, 476 P.2d 1000 (1970).

Colorado does not recognize the offense of attempted felony murder. Because criminal attempt requires a defendant to possess the culpable mental state for the attempted offense and felony murder does not require a mental state, it is impossible to convict a person of attempting to commit an act that the person was not intending. People v. Meyer, 952 P.2d 774 (Colo. App. 1997).

When aider and abettor not guilty of murder. One cannot be held guilty of murder as an aider and abettor if he has acted without knowledge or malice on his part and was ignorant of the malicious motives and felonious intent on the part of the actual slayer. Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956).

Complicitor included in felony murder statute. A complicitor, being a principal, is included in the felony murder statute as one who commits or attempts to commit the underlying felony. People v. Saiz, 42 Colo. App. 469, 600 P.2d 97 (1979).

A complicitor, being a principal, is included in the felony murder statute as one who “commits or attempts to commit [the underlying felony]”, whether he is near the scene of the underlying felony or not. People v. Priest, 672 P.2d 539 (Colo. App. 1983).

A defendant who acts as a complicitor in the underlying felony may be held criminally liable for felony murder. It is not legally nor logically impossible to be a complicitor to felony murder. People v. Fisher, 9 P.3d 1189 (Colo. App. 2000).

Court did not err in giving a special interrogatory to the jury before the jury announced its decision. The special interrogatory was necessary to ensure the validity of the verdict on the felony murder charge and was not a post-verdict statement under C.R.E. 606(b). People v. Doubleday, 2012 COA 141M, — P.3d –, rev’d on other grounds, 2016 CO 3, 364 P.3d 193.

D. Extreme Indifference to Life.

Subsection (1)(d) (as it existed prior to the 1977 amendment that substituted “knowingly” for “intentionally”) was not constitutionally void for vagueness. People v. District Court, 185 Colo. 78, 521 P.2d 1254 (1974).

Conviction under subsection (1)(d) (as it existed prior to the 1977 amendment that substituted “knowingly” for “intentionally”) did not deny equal protection. The standards of culpability in subsection (1)(d) and § 18-3-105 (1)(a) are distinct enough to be intelligently understood and applied, and therefore, the defendant was not denied equal protection of the law by virtue of his conviction under subsection (1)(d) of this section. People v. Jones, 193 Colo. 250, 565 P.2d 1333 (1977).

Statutory definition of extreme indifference murder (as it existed prior to the 1981 amendment) violated equal protection of the laws under § 25 of art. II, Colo. Const., because that crime was not sufficiently distinguishable from second degree murder to warrant the substantial differential in penalty authorized by the statutory scheme. People v. Curtis, 627 P.2d 734 (Colo. 1981); Crespin v. People, 721 P.2d 688 (Colo. 1986).

The statutory prohibition of extreme indifference murder violated equal protection of the laws because it could not reasonably be distinguished from the lesser offense of second degree murder as defined in § 18-3-103 (1)(a). People v. Marcy, 628 P.2d 69 (Colo. 1981); People v. Roark, 643 P.2d 756 (Colo. 1982).

The statutory definition of extreme indifference murder violated equal protection of the laws under the Colorado constitution because it was not sufficiently distinguishable from second degree murder to warrant the substantial differential in penalty authorized by the statutory scheme. People v. Gurule, 628 P.2d 99 (Colo. 1981).

Statutory definition of extreme indifference murder in 1981 amendment is not violative of equal protection of the laws under § 25 of art. II, Colo. Const., because it is sufficiently distinguishable from second degree murder to warrant difference in penalty. People v. Jefferson, 748 P.2d 1223 (Colo. 1988).

Defendant’s due process rights not to be charged with a multiplicitous information were not violated when defendant was charged and convicted of two counts of attempted extreme indifference murder for firing multiple shots at a door and injuring one victim and shooting towards, but not injuring, another victim. People v. Ellis, 30 P.3d 774 (Colo. App. 2001).

Both first degree murder by extreme indifference and second degree murder are committed “knowingly” and are thus general intent crimes. People v. Rodriguez, 888 P.2d 278 (Colo. App. 1994).

If perpetrator possesses the specific intent under subsection (1)(a) to kill the individual whose death occurs as a result of the perpetrator’s actions, the perpetrator cannot also be convicted for extreme indifference murder under subsection (1)(d). People v. Atkins, 844 P.2d 1196 (Colo. App. 1992); People v. Fernandez, 883 P.2d 491 (Colo. App. 1994).

Where defendant knew the victim and his conduct was directed toward that particular person, evidence of the element of universal malice under subsection (1)(d) was lacking. People v. Perez, 972 P.2d 1072 (Colo. App. 1998).

There is no logical inconsistency with a perpetrator having both the specific intent under subsection (1)(a) to kill an individual and exhibiting an extreme indifference to murder under subsection (1)(d). There are situations in which a perpetrator can have both the specific intent to kill an individual and also show an extreme indifference to the lives around the individual targeted for death. Candelaria v. People, 148 P.3d 178 (Colo. 2006) (disagreeing with People v. Atkins cited above).

Unlike intentional first degree murder after deliberation, crime of extreme indifference first degree murder does not require proof that defendant intended to cause the death of another. Instead, it requires proof that defendant knowingly engaged in conduct that created a grave risk of death to one or more persons and demonstrated extreme indifference to the value of human life generally. Candelaria v. People, 148 P.3d 178 (Colo. 2006); People v. Reynolds, 252 P.3d 1128 (Colo. App. 2010).

Extreme indifference murder is evinced by acts that are calculated to put the lives of many persons in danger, without being aimed at anyone in particular. People v. Ellis, 30 P.3d 774 (Colo. App. 2001).

Defendant firing at a group of persons running out doorway of bar was sufficient evidence to prove universal malice element of extreme indifference murder. People v. Fernandez, 883 P.2d 491 (Colo. App. 1994).

A defendant may be charged with and convicted of multiple counts of attempted extreme indifference murder where his or her conduct endangers several people. Accordingly, defendant was properly convicted of multiple counts of attempted extreme indifference murder for shooting into a car with multiple passengers. People v. Beatty, 80 P.3d 847 (Colo. App. 2003).

“Knowingly” requirement is satisfied in an attempted extreme indifference murder case by proving that defendant’s conduct in fact created a grave risk of death. Defendant need not have known that his or her conduct was practically certain to cause death. People v. Rubio, 222 P.3d 355 (Colo. App. 2009).

Despite fact that defendant was angry with victims, defendant’s act of firing at closed door upon leaving house and admitting that he was not directing his fire at any particular individual displayed the requisite universal malice and that he knowingly engaged in conduct creating a grave risk of death to others required for the crime of extreme indifference murder. People v. Ellis, 30 P.3d 774 (Colo. App. 2001).

Second degree murder is a lesser included offense of extreme indifference murder. People v. Moore, 902 P.2d 366 (Colo. App. 1994).

Menacing is not a lesser included offense of attempted extreme indifference murder. People v. Portillo, 251 P.3d 483 (Colo. App. 2010).

There is a significant difference between the elements of extreme indifference murder and reckless manslaughter. Extreme indifference murder requires proof of circumstances showing an attitude of universal malice with extreme indifference to the value of human life generally. Reckless manslaughter lacks this element. People v. Alvarado-Juarez, 252 P.3d 1135 (Colo. App. 2010).

A conviction for attempted second degree murder cannot merge with a conviction for attempted first degree murder with extreme indifference where the offenses had different victims. People v. Torres, 224 P.3d 268 (Colo. App. 2009).

Defendant firing at a moving vehicle with passengers where path of bullet endangered both passengers of vehicle and people near defendants house was sufficient evidence to prove universal malice element of extreme indifference murder. People v. Zekany, 833 P.2d 774 (Colo. App. 1991).

Voluntary intoxication not to be considered as a defense or mitigating factor to the crime of extreme indifference murder. Voluntary intoxication only a defense to specific intent crimes such as homicide with deliberation. Extreme indifference murder requires only that defendant have the general intent to act “knowingly”. People v. Zekany, 833 P.2d 774 (Colo. App. 1991).

Self-defense is not available as a defense for extreme indifference murder. For certain actions to constitute self-defense, defendant must have acted in a reasonable manner. Finding a defendant guilty of extreme indifference murder necessarily precludes a finding that his actions were reasonable, as the “universal malice” element of the offense requires the jury to conclude that the defendant acted with aggravated recklessness. People v. Fernandez, 883 P.2d 491 (Colo. App. 1994).

The affirmative defense of self-defense is not consistent with charges of first degree extreme indifference murder and attempted first degree extreme indifference murder. Thus, as it relates to those charges, any evidence reflective of an apprehension of imminent danger is immaterial. People v. Rodriguez, 888 P.2d 278 (Colo. App. 1994).

Jury’s consideration not limited to evidence of blows inflicted upon the victim immediately before the victim’s death. Jury could have concluded that defendant had indiscriminately shoved, hit, kicked, and threatened one or more other persons without provocation near the time of the victim’s death, thus indicating excessively reckless conduct. Testimony that the defendant had worked himself into a frenzy and that he did not know the victim or any of the other people he hit, kicked, or shoved, tended to establish extreme indifference to the value of human life. People v. Moore, 902 P.2d 366 (Colo. App. 1994).

This section does not include every act dangerous to life of person killed. This section does not include in its definition of murder in the first degree every act that is dangerous to the life of the person killed. Every act that results in the death of a person is greatly dangerous to the life of such person, but the section intended that there should be an act which shows the accused to have had a depraved mind, regardless of human life, and is intended to include those cases where a person has no deliberate intention to kill any particular individual. Longinotti v. People, 46 Colo. 173, 102 P. 165 (1909).

It is inapplicable to homicide resulting from direct assault. The provision relating to acts gravely dangerous to life cannot, without violence to the intention of the general assembly as evinced by the language, be applied to the case of homicide resulting from a direct assault by one person upon another. Longinotti v. People, 46 Colo. 173, 102 P. 165 (1909).

Felony child abuse not inconsistent with acquittal of extreme indifference murder. A guilty verdict for felony child abuse is not inconsistent with an acquittal of extreme indifference murder nor second degree murder. People v. Noble, 635 P.2d 203 (Colo. 1981).

Death or great bodily harm must be the reasonable or probable consequence of the act to constitute murder. Stafford v. People, 154 Colo. 113, 388 P.2d 774 (1964).

Element addresses itself to human life generally. The element of “extreme indifference to human life”, by definition, does not address itself to the life of the victim, but to human life generally. People v. District Court, 185 Colo. 78, 521 P.2d 1254 (1974).

No requirement that knowing conduct directed against person actually killed. There is no requirement that the knowing conduct essential to extreme indifference murder and second degree murder be directed against the person actually killed. On the contrary, both offenses are general intent crimes, and as long as the offender knowingly acts in the proscribed manner and causes the death of another, he is guilty of the crime, even though the person killed is not the person against whom the criminal conduct was directed. People v. Marcy, 628 P.2d 69 (Colo. 1981).

Defendant’s intent may vary in committing crimes against separate victims. The jury could have found that the shots other than the one hitting the intended victim were not specifically intended to harm any of the other victims, but instead were fired generally in their direction. While the defendant did not have the specific intent to harm any of the other victims, the jury could have properly determined that the defendant was guilty of extreme indifference murder and attempted extreme indifference murder as to those victims. People v. Lee, 914 P.2d 441 (Colo. App. 1995).

Standard of conduct more culpable than that involved in manslaughter. The term “under circumstances … manifesting extreme indifference to the value of human life” connotes a heightened awareness and disregard of a fatal risk and is clearly a more culpable standard of conduct than the reckless conduct involved in manslaughter. People v. Marcy, 628 P.2d 69 (Colo. 1981).

For the definition of “intentionally”, which was replaced by “knowingly” by the 1977 amendment, see People v. District Court, 185 Colo. 78, 521 P.2d 1254 (1974).

Evidence was sufficient for jury to find that defendant acted with universal malice for the purposes of subsection (1)(d). Even though defendant argued heatedly with victim shortly before victim was shot by the defendant, evidence sufficiently showed that the defendant knew the rifle he shot was dangerous and that more than one person could be struck with each bullet fired, that the defendant shot the rifle toward a moving pickup with a number of passengers, and that the path of the bullet fired from the rifle endangered numerous lives of persons in the pickup and standing in the area in which the rifle was shot. People v. Zekany, 833 P.2d 774 (Colo. App. 1991).

The element of universal of malice required for extreme indifference murder, defined as aggravated or extremely reckless conduct, was present where defendant, in a knowing effort to scare the crowd, fired shots with his right hand, although he was left-handed, while his head was placed between his knees. People v. Rodriguez, 888 P.2d 278 (Colo. App. 1994).

Voluntary intoxication is not available as a defense for extreme indifference murder. Voluntary intoxication is available only for specific intent crimes. The term “universal malice” under subsection (1)(d), does not make murder under section a specific intent crime. People v. Zekany, 833 P.2d 774 (Colo. App. 1992).

III.TRIAL AND PROSECUTION.

A. In General.

In order for an accessory to be convicted of murder where the principal is found not guilty by reason of insanity, it must be shown beyond a reasonable doubt that, except for the insanity, the principal committed a murder. People v. Jones, 184 Colo. 96, 518 P.2d 819 (1974).

The burden of proof rests upon the state to prove to the satisfaction of the jury, beyond a reasonable doubt, the existence of all the material elements necessary to constitute the crime of murder as defined by this section. Kent v. People, 8 Colo. 563, 9 P. 852 (1885).

It is the people’s burden to make out a case that would have sustained a verdict of guilty of first or second degree murder before the prosecution is entitled to instructions thereto. Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).

Before a jury can convict a defendant on any one of the counts of homicide, it must be satisfied that each and every material allegation of that count has been proven beyond a reasonable doubt. Jorgensen v. People, 178 Colo. 8, 495 P.2d 1130 (1972).

An arrest without warrant is not a defense to a charge of first degree murder. Moore v. Tinsley, 142 Colo. 516, 351 P.2d 456 (1960).

Cross-examination. In a murder case a wide latitude should be permitted on cross-examination of prosecution witnesses. McCune v. People, 179 Colo. 262, 499 P.2d 1184 (1972).

It is not unconstitutional to try the felony murder and first degree kidnapping charges together under the current statutory scheme. People v. Cunningham, 194 Colo. 198, 570 P.2d 1086 (1977).

Defendant’s federal prosecution under the Racketeer Influenced and Corrupt Organizations Act (RICO) and subsequent state conviction for first degree murder for the same incident do not constitute double jeopardy, as the RICO conviction required proof of facts not necessary for the state murder conviction, and the two laws seek to prohibit substantially different evils. People v. Gladney, 250 P.3d 762 (Colo. App. 2010).

B. Indictment or Information.

Notice of the specific charge is a matter of procedural due process. Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962), aff’d, 316 F.2d 284 (10th Cir. 1963).

Indictment which simply charged that defendant murdered the victim was upheld as constitutional. Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962), aff’d, 316 F.2d 284 (10th Cir. 1963).

Indictment or information in the words of the statute is sufficient. In an indictment for murder, it is not necessary to state more than the statute provides in order to sustain a conviction of murder in the first degree. Andrews v. People, 33 Colo. 193, 79 P. 1031 (1905).

Information charging felony murder was substantively sufficient and therefore conferred jurisdiction on the trial court as it specifically named the underlying offense, burglary, and otherwise tracked the felony murder statute. People v. Palmer, 87 P.3d 137 (Colo. App. 2003).

As information charging murder includes all degrees of criminal homicide. Campbell v. People, 55 Colo. 302, 133 P. 1043 (1913).

Where an information charged murder in the first degree, it included all the lower grades of criminal homicide. Henwood v. People, 54 Colo. 188, 129 P. 1010 (1913).

Indictment charging murder supports verdict of felony murder. A prosecution on an information charging that on a certain date defendant did feloniously, willfully, and of his premeditated malice aforethought, kill and murder a named person, and defendant was convicted of felony murder. Where the information contained every essential element demanded by the Colorado statutes and demanded also by generally approved principles of criminal pleading, and apprised the defendant of the nature of the charge, the date and place, described the victim, and further alleged that the killing was with malice aforethought, but failed to pinpoint the allegation that the homicide occurred incident to a known felony, due process was not violated. Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962), aff’d, 316 F.2d 284 (10th Cir. 1963).

Defective charge not cured by verdict. When one is tried as on a charge of murder in the first degree, but the jury finds a verdict of murder in the second degree, the error is not cured if the indictment fails to describe the higher grade of the crime. Redus v. People, 10 Colo. 208, 14 P. 323 (1887).

Words “malice aforethought” are coextensive with deliberation and premeditation. The words “malice aforethought” in the indictment are coextensive in meaning with the words “deliberate” and “premeditated”, and a charge that a homicide was committed with malice aforethought comprehends a case of deliberate and premeditated killing. Hill v. People, 1 Colo. 436 (1872).

An indictment charging that defendant unlawfully, feloniously, wilfully, purposely, and of his malice aforethought, did kill and murder the deceased, is sufficient to warrant a verdict finding that the homicide was committed with deliberation and premeditation within the terms of this section. Redus v. People, 10 Colo. 208, 14 P. 323 (1887).

C. Evidence.

Conviction of a crime may be based on circumstantial evidence, and a conviction for first degree murder will be affirmed where review of the record indicates that the people’s circumstantial case fully excluded all reasonable hypotheses of innocence. Moore v. People, 174 Colo. 286, 483 P.2d 1340 (1971).

Wholly circumstantial evidence is sufficient to prove guilt beyond a reasonable doubt in prosecution for felony murder. People v. Sanchez, 184 Colo. 25, 518 P.2d 818 (1974).

As may instructions on crimes. Circumstantial evidence, when tied together, can support and provide a foundation for instructions on each of the crimes of first degree murder, first degree burglary, and theft arising out of the same transaction. People v. Salas, 189 Colo. 111, 538 P.2d 437 (1975).

Test for evidence on appeal. The critical inquiry on appeal is whether the evidence, when reviewed in a light most favorable to the prosecution, is substantial and sufficient to permit a reasonable person to conclude beyond a reasonable doubt that the defendant intentionally caused the victim’s death and that the decision to kill was made after the exercise of reflection and judgment. People v. Madson, 638 P.2d 18 (Colo. 1981).

Proof must establish premeditation to support verdict of murder in the first degree. Van Houton v. People, 22 Colo. 53, 43 P. 137 (1895).

The elements of deliberation, premeditation, and express malice must be manifested by external circumstances capable of proof to justify submitting the charge of first degree murder to the jury. Hervey v. People, 178 Colo. 38, 495 P.2d 204 (1972).

Presumption of intent will not support conviction of first degree murder. People v. Morant, 179 Colo. 287, 499 P.2d 1173 (1972).

The ultimate point which the evidence must extend to and establish is not the use of a deadly weapon, but the deliberation or premeditation with which the fatal act is done. Hill v. People, 1 Colo. 436 (1872).

Intent must be determined from all circumstances. Where pertinent, the question of intent of a defendant in a criminal case must be determined from all the circumstances connected with the perpetration of the offense with which he is charged. Leopold v. People, 105 Colo. 147, 95 P.2d 811 (1939).

Evidence supporting first degree conviction supports second degree conviction. It is illogical to say that the evidence is sufficient to support a conviction of first degree murder but insufficient to support the lesser included offense of second degree murder. People v. Lankford, 185 Colo. 445, 524 P.2d 1382 (1974).

Proof of motive will not be excluded merely because it may be prejudicial to the defendant so long as it is relevant and material. People v. Miller, 187 Colo. 239, 529 P.2d 648 (1974).

In a homicide case, it is proper to show an antecedent grudge borne by the accused against the deceased to establish a motive for the alleged homicide. People v. Miller, 187 Colo. 239, 529 P.2d 648 (1974).

Also, evidence of a prior argument was clearly admissible to show a possible motive, and the fact that the argument occurred approximately two months before the shooting affected only the weight of the evidence, not its admissibility. People v. Miller, 187 Colo. 239, 529 P.2d 648 (1974).

Insanity resulting from voluntary intoxication mitigates first degree murder. People v. Manier, 184 Colo. 44, 518 P.2d 811 (1974).

If defendant is voluntarily under the influence of an intoxicant so as to be unable to form the intent required for a conviction, he cannot be guilty. People v. Manier, 184 Colo. 44, 518 P.2d 811 (1974).

Evidence of intoxication admissible only to determine if accused was capable of premeditation and deliberation. Brennan v. People, 37 Colo. 256, 86 P. 79 (1906); Washington v. People, 158 Colo. 115, 405 P.2d 735 (1965), cert. denied, 383 U.S. 953, 86 S. Ct. 1217, 16 L. Ed. 2d 215 (1966).

It is only because of the specific intent required for first degree murder that voluntary drunkenness is an excuse even for that crime. Watkins v. People, 158 Colo. 485, 408 P.2d 425 (1965).

Drunkenness is not an excuse for crime, but when a particular intent forms the gist of the offense, as distinguished from general criminal intent, and is made to depend on the state and condition of the mind of the accused at the time, drunkenness as a fact affecting the control of the mind is proper for the consideration of the jury in determining whether the accused was capable of entertaining the positive and particular intent requisite to make out the offense. Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970).

Likewise, mental deficiency admissible as to intent. A defendant in a first degree murder case has the right, without reference to a plea of insanity, to establish mental deficiency as bearing upon his capacity to form the specific intent essential to first degree murder. Early v. People, 142 Colo. 462, 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960).

For evidence of insanity, see Beckstead v. People, 133 Colo. 72, 292 P.2d 189 (1956); Early v. People, 142 Colo. 462, 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960).

Evidence of general depravity is not admissible to prove guilt of one charged with a crime. While a defendant who takes the stand may be impeached in this state by showing former convictions of a felony, the rule does not extend to admission of acts or occurrences which show bad character on the part of the defendant. Romero v. People, 170 Colo. 234, 460 P.2d 784 (1969).

Acts prior to crime admissible to show intent. In order to show intent, it is not error to permit third parties to testify as to fighting and stabbing by defendants just prior to defendant’s fatal attack on deceased. Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956).

Evidence of any crime committed by a defendant prior to the acts charged must not be considered for any purpose except that of determining the intent with which the acts charged in the information is done. Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956).

In marital homicide cases, any fact or circumstance relating to ill-feeling, ill-treatment, jealousy, prior assaults, personal violence, threats, or any similar conduct of attitude by the husband toward the wife are relevant to show motive and malice in such crimes and are not evidence of mere general depravity which is not admissible. Romero v. People, 170 Colo. 234, 460 P.2d 784 (1969).

Prior abusive conduct is not itself sufficient to be admissible as proof of conduct that defendant was aware the conduct was practically certain to cause death for a conviction for murder in the first degree under subsection (1)(f) when prior abusive conduct did not also result in serious bodily injury or death to a child and did not tend to demonstrate defendant was aware his conduct was practically certain to cause a child’s death. The prior abusive conduct and the conduct resulting in death must be substantially similar in order to be admissible under C.R.E. 404(b). People v. Casias, 2012 COA 117, 312 P.3d 208.

Nor is it admissible to prove absence of mistake. People v. Casias, 2012 COA 117, 312 P.3d 208.

But defendant failed to demonstrate a reasonable probability that the error in admitting the evidence contributed to his conviction. People v. Casias, 2012 COA 117, 312 P.3d 208.

Admissibility of other connected crimes. In the trial of a homicide case, evidence of other crimes which were indivisibly connected with, incidental to, and in furtherance of the plan of defendant to rob a bank and flee, and which are a part of a single transaction, is admissible. Abshier v. People, 87 Colo. 507, 289 P. 1081 (1930).

Other offenses may be offered in evidence where so interwoven with principal transaction that it is necessary to show them in order to give a fair and true understanding of offense charged, particularly where the other transactions were so connected in point of time with the offense under investigation, and so similar in character, that the same motive could be imputed as to all of them. Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956).

Evidence presented at trial established conduct that was so closely connected to the main criminal transaction that evidence of it was necessary to complete the story of the crime. Without that evidence, the murder might not be properly understood as the jury would have no basis upon which it could determine the reasons behind defendant’s conduct. People v. Gladney, 250 P.3d 762 (Colo. App. 2010).

Actions subsequent to crime admissible to show guilt. The fact that the defendant buried the body, repeatedly lied concerning the disappearance of his wife, went under an assumed name, and, while awaiting trial, escaped from jail, was properly submitted to the jury as evidence of guilt and consciousness of guilt, but the same does not serve to supply the missing element of malice. Stafford v. People, 154 Colo. 113, 388 P.2d 774 (1964).

The flight of a person immediately after the commission of a crime is a circumstance establishing his guilt. Stafford v. People, 154 Colo. 113, 388 P.2d 774 (1964).

Ballistic test conditions must be substantially similar to the conditions when the shooting occurred in order to be admissible. Jorgenson v. People, 174 Colo. 144, 482 P.2d 962 (1971).

Admission of real evidence. In order to be material and relevant, real evidence must only be connected with the perpetrator, the victim, or the crime. The clothing worn by the victim the night of the crime meets these tests and is properly admitted. Jorgenson v. People, 174 Colo. 144, 482 P.2d 962 (1971).

Pictures can be admitted to show anything a witness would be allowed to testify about. Certainly a doctor could testify to the location of the wounds and the cause of death. The fact that the defendant admitted the killing, relying on self-defense, does not prevent the state from showing the circumstances surrounding it, and the pictures were properly admitted. Jorgenson v. People, 174 Colo. 144, 482 P.2d 962 (1971).

Unless there is an abuse of discretion, the trial court’s decision as to admissibility of a large color photograph of the deceased will not be disturbed on review. People v. Casey, 185 Colo. 58, 521 P.2d 1250 (1974).

Articles and statements of codefendants admissible. Defendant and his codefendant jointly participated in the criminal venture which resulted in the homicide. They acted in concert in furtherance of a common illegal purpose, and each, as to the other, was an accomplice. Admitting in evidence as against defendant the articles found in the possession of his codefendant was not error where they were a part of the people’s case against both defendants. Miller v. People, 141 Colo. 576, 349 P.2d 685, cert. denied, 364 U.S. 851, 81 S. Ct. 97, 5 L. Ed. 2d 75 (1960).

Error in admitting testimony as to admissions made by codefendant who under prosecution theory was principal perpetrator of robbery and murder where defendant was charged as an accessory, which indicated that another person was present and the admission of which allegedly violated defendant’s sixth amendment right of confrontation, was harmless where additional evidence consisting of testimony of three eyewitnesses also established that the robbery was committed by two men. People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973).

Statements and physical evidence constitute direct evidence. Where a defendant and his codefendant plan the death of defendant’s wife and both participate in the execution of the plan, it is immaterial which of them actually strangled the deceased, and where each of them make signed statements and the defendant makes verbal statements to a police officer, such statements, together with the physical evidence in the case, constitute sufficient direct evidence to sustain the death penalty. Leick v. People, 136 Colo. 535, 322 P.2d 674 (1958).

Confession held involuntary and invalid. Oaks v. Patterson, 278 F. Supp. 703 (D. Colo. 1968), aff’d, 400 F.2d 392 (10th Cir. 1968).

Statements taken in violation of Miranda’s procedural safeguards are admissible for impeachment purposes. Jorgenson v. People, 174 Colo. 144, 482 P.2d 962 (1971), overruling Velarde v. People, 171 Colo. 261, 466 P.2d 919 (1970).

Admission of hearsay referring to defendant’s prior act of homicide held reversible error. People v. Madson, 638 P.2d 18 (Colo. 1981).

Evidence sufficient to show expressed malice. Where all the evidence is strongly indicative of the fact that the defendant aimed the vehicle at the victim and struck him, and did not apply brakes nor stop immediately after striking the victim, the evidence is sufficient to show express malice. People v. Casey, 185 Colo. 58, 521 P.2d 1250 (1974).

Circumstantial evidence held sufficient. Morse v. People, 168 Colo. 494, 452 P.2d 3 (1969).

While there is no direct evidence of defendant’s intent, there is enough circumstantial evidence from which the jury can infer that defendant intended to commit either burglary or robbery prior to or concurrent with the shooting. People v. Phillips, 219 P.3d 798 (Colo. App. 2009).

Colorado supreme court will refuse to give an advisory opinion on the interpretation of subsection (1)(d), as it relates to the evidence presented in the case, as it would serve little purpose and would have no significant precedential value. People v. Lyle, 200 Colo. 236, 613 P.2d 896 (1980).

Evidence held sufficient to support conviction of first degree murder. Moya v. People, 88 Colo. 139, 293 P. 335 (1930); Frady v. People, 96 Colo. 43, 40 P.2d 606 (1934); Sullivan v. People, 111 Colo. 205, 139 P.2d 876 (1943); Mayer v. People, 116 Colo. 284, 180 P.2d 1017 (1947).

Where the circumstances shown by the evidence were such that the jury could well have been satisfied beyond a reasonable doubt that defendant fired the shot resulting in the death of deceased, it was sufficient to sustain a conviction. Atencio v. People, 147 Colo. 566, 364 P.2d 575 (1961).

Evidence sufficient to show victim was killed during robbery. Carroll v. People, 177 Colo. 288, 494 P.2d 80 (1972).

Evidence sufficient to convict defendant of felony murder. People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976).

Evidence sufficient to establish deliberation. Where a witness testified that the defendant left the room for a moment and returned carrying a wooden stick, that when the victim saw the stick, he asked the defendant, “Where did you get that?” and to this question the defendant replied, “In the bedroom” and began hitting the victim, this evidence was sufficient to establish that the defendant acted after deliberation. People v. Hamrick, 624 P.2d 1333 (Colo. App. 1979), aff’d, 624 P.2d 1320 (Colo. 1981).

Viewed in the light most favorable to the prosecution, the evidence was sufficient to induce a person of ordinary prudence to entertain a reasonable belief that defendant committed murder in the first degree where testimony indicated defendant was fighting with victim, threatened to kill victim, obtained a butcher knife, waved the knife at victim, and stabbed victim not once, but twice in the abdominal area, and where circumstances, such as the length of the struggle between defendant and victim permitted the reasonable inference that defendant had adequate time for the exercise of reflection and judgment concerning the fatal act. People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996).

D. Jury.

The right of the prosecution to qualify the jury has consistently been upheld. Padilla v. People, 171 Colo. 521, 470 P.2d 846 (1970); English v. People, 178 Colo. 325, 497 P.2d 691 (1972).

The trial judge’s questioning of prospective jurors as to their views regarding capital punishment is relevant and proper in prosecution for first degree murder. People v. Mackey, 185 Colo. 24, 521 P.2d 910 (1974).

Juror who would refuse to inflict death penalty is properly excused. A juror who declares that, notwithstanding evidence and instructions, he would under no circumstances vote to inflict the death penalty is properly excused. Shank v. People, 79 Colo. 576, 247 P. 559 (1926).

Trial court properly sustained the challenge for cause of jurors who stated upon voir dire that under no circumstances would they vote to impose the death penalty, as a juror with such convictions would exclude from his consideration one of the penalties prescribed by law. Gallegos v. People, 116 Colo. 129, 179 P.2d 272 (1947).

The test for qualifying the jury for imposition of the death penalty is whether, regardless of his personal beliefs or convictions, a venireman could impose the death penalty. If he cannot set aside those convictions and impose sentence in accord with his oath as a juror, it is not error to exclude him, not because of his beliefs and convictions, but because of his inability to perform his oath as a juror. English v. People, 178 Colo. 325, 497 P.2d 691 (1972).

Such exclusion does not deny trial by jury. A constitutional right to a trial by a jury of his peers is not denied a defendant because 29.3 percent of the jury panel were excluded on challenge for cause because of their unwillingness to consider under any circumstances the imposition of the death penalty. Padilla v. People, 171 Colo. 521, 470 P.2d 846 (1970).

Trial by jury may be waived. Since under the statutes, there are no mandatory requirements for the jury to determine the degree of murder or to determine the class of felony and because the criminal defendant has a substantive right to waive a jury trial, defendant could properly waive his right to a jury trial even though he was convicted of a class 1 felony. People v. Cisneros, 720 P.2d 982 (Colo. App.), cert. denied, 479 U.S. 887, 107 S. Ct. 282, 93 L. Ed. 2d 257 (1986).

Juror who merely opposes capital punishment not excludable for cause. A death sentence cannot constitutionally be executed if imposed by a jury from which have been excluded for cause those who, without more, are opposed to capital punishment or have conscientious scruples against imposing the death penalty. This decision does not govern where the jury recommended a sentence of life imprisonment. Padilla v. People, 171 Colo. 521, 470 P.2d 846 (1970).

Voir dire on death penalty proper. Where charge was murder in the first degree, it was not improper to permit prosecuting attorney to qualify jurors to return the death penalty, where evidence to be presented was wholly circumstantial, since at the time of examination of jurors it was possible that witness would be found to give direct evidence, or that defendant, upon direct or cross-examination, might incriminate himself to the extent that death penalty could be sought. Atencio v. People, 147 Colo. 566, 364 P.2d 575 (1961).

Court may not invade province of jury. A person charged with murder is tried by a jury; they alone must determine the facts, and no court, either trial or appellate, has a right to constitute itself a trier of facts, and thus invade the province of a jury. The question of the weight of testimony and the credibility of the witnesses is to be determined by the jury, properly instructed as to the law. Unless this course is followed, a defendant is deprived of his constitutional right of a trial by jury. Gallegos v. People, 136 Colo. 321, 316 P.2d 884 (1957).

Jury sequestration. Trial of a first degree murder charge is a “capital case” for purposes of jury sequestration under Crim. P. 24(f) (as it existed prior to the 1983 amendment) even though the district attorney does not intend to qualify the jury for consideration of the death penalty or to seek the imposition of the death penalty in the event of a conviction. People ex rel. Faulk v. District Court, 667 P.2d 1384 (Colo. 1983).

Intention is question to be submitted to jury. Whether intention is shown by evidence of antecedent menaces, former grudges, the means employed to effect the homicide, or any other circumstances which may give assurance of it, it is to be submitted to the jury to find the fact under the direction of the law. Hill v. People, 1 Colo. 436 (1872).

If there was evidence relevant to the issue of manslaughter, its credibility and force were for the jury to consider in determining the facts, and not as a matter of law for the decision of the court. Henwood v. People, 54 Colo. 188, 129 P. 1010 (1913).

Whether defendant acted with premeditation is for the jury to determine after a consideration of all the facts and circumstances in evidence, including those affecting his mental condition at the time. Ingles v. People, 92 Colo. 518, 22 P.2d 1109 (1933).

Where from this evidence the jury could have found that defendant had formed a premeditated design to take the life of the deceased or that there was no considerable provocation for the killing, it was not for the trial court to determine as a matter of law, but for the jury under proper instructions to resolve as a matter of fact, the question of whether premeditation existed. People v. Spinuzzi, 149 Colo. 391, 369 P.2d 427 (1962), overruled on another point in People v. Kirkland, 174 Colo. 362, 483 P.2d 1349 (1971).

Express malice is a question of fact to be determined by the jury on all the evidence in the case. Lopez v. People, 175 Colo. 503, 488 P.2d 892 (1971).

Facts other than killing must exist to submit charge of murder. It is only when, in addition to the killing, facts and circumstances attending or surrounding the homicide are laid before the jury that the necessary inferences of fact to complete the crime of murder can be rightfully drawn. Kent v. People, 8 Colo. 563, 9 P. 852 (1885).

There being no evidence of malice, premeditation, deliberation, intention to kill, or killing showing an abandoned and malignant heart, it was error to submit to the jury instructions defining murder and forms of verdict whereby they could find the defendant guilty of murder. Stafford v. People, 154 Colo. 113, 388 P.2d 774 (1964).

Intoxication is question for jury. Where there was evidence tending to prove drunkenness, it was for the jury to determine whether the defendant was so intoxicated as to be unable to form the deliberate intent necessary. Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970).

Whether injuries inflicted began chain of events causing death is question for jury. Where the defendant attacked an epileptic who had consumed a considerable amount of whiskey and had failed to take his prescribed medication, the question for the jury’s determination was whether the injuries inflicted by the defendant began a chain of events which in their natural and probable consequences caused the victim’s death. Hamrick v. People, 624 P.2d 1320 (Colo. 1981).

E. Instructions.

Courts should excise irrelevant portions of a murder instruction to conform to the evidence in the case. People v. Miller, 187 Colo. 239, 529 P.2d 648 (1974).

Use of word “homicide” is preferred to term “murder”. A homicide is the killing of a human being by another. It is the unlawful commission of homicide that renders the perpetrator guilty of a crime, and consequently in court instructions to a jury concerning the law as to this offense the use of the word “homicide” is proper and to be preferred to the term “murder”. Leopold v. People, 105 Colo. 147, 95 P.2d 811 (1939).

“After deliberation” needs no elaboration, unless requested. The phrase “after deliberation” is neither so unusual nor so unfamiliar as to require elaboration, although a trial court should give an instruction on the meaning of this statutory phrase if requested by a defendant. People v. Beltran, 634 P.2d 1003 (Colo. App. 1981).

“Acting either alone or with one or more persons” does not define an element of the offense, but merely makes clear that guilt results in either case. People v. Bastin, 937 P.2d 761 (Colo. App. 1996).

Instruction on first degree murder and felony murder held proper. Roybal v. People, 177 Colo. 144, 493 P.2d 9 (1972).

Instruction on elements of felony murder proper. Instruction that if homicide was committed in perpetrating robbery, premeditation and intent are not necessary elements of the crime charged and need not be proved, is held proper in view of this section. Frady v. People, 96 Colo. 43, 40 P.2d 606 (1934).

Instruction on circumstantial evidence. In the trial of any murder case, where the prosecution relies in whole or in part on circumstantial evidence, if defendant’s counsel desires an instruction on such evidence, it is his duty to prepare and tender such, and its refusal may constitute error. Berger v. People, 122 Colo. 367, 224 P.2d 228 (1950).

Instruction on intent. Upon the trial of an information for homicide, the accused is entitled to an instruction that the intent of the prisoner is for the jury, and that the presumption of innocence attends the prisoner throughout the trial and must be overcome by evidence excluding reasonable doubt. Young v. People, 47 Colo. 352, 107 P. 274 (1910).

Defendant’s failure at trial to object to the lack of a “specific intent” definition instruction and a voluntary intoxication instruction makes constitutional harmless error review inapplicable. Under plain error review, trial court’s failure to properly instruct the jury that “after deliberation” is an element of first degree murder that is negated by voluntary intoxication did not constitute plain error. People v. Miller, 113 P.3d 743 (Colo. 2005).

Instructions adequately advised jury on premeditation and presumption of innocence. Carroll v. People, 177 Colo. 288, 494 P.2d 80 (1972).

Where instruction refers to crimes proscribed by section, general verdict form not error. Where the trial court’s instruction on the charge of first degree murder stated clearly that the jury was entitled to find the defendant guilty of that crime if it determined that he had committed the crime proscribed by (1)(a) or the crime proscribed by subsection (1)(b), the use of a general verdict form referring to the crime “as charged in count one of the indictment” was not error. People v. Glenn, 200 Colo. 416, 615 P.2d 700 (1980).

Instructions on flight. Robbins v. People, 142 Colo. 254, 350 P.2d 818 (1960); Stafford v. People, 154 Colo. 113, 388 P.2d 774 (1964); People v. Miller, 187 Colo. 239, 529 P.2d 648 (1974).

No jury instruction explaining or defining “immediate flight” is necessary. These are words of common meaning, not a legal term of art. People v. Auman, 67 P.3d 741 (Colo. App. 2002), rev’d on other grounds, 109 P.3d 647 (Colo. 2005).

Reversal of second degree burglary conviction because of erroneous theft instruction required reversal of felony murder conviction. Auman v. People, 109 P.3d 647 (Colo. 2005).

Instruction based on statutory presumptions of intoxication not applicable to issue of first degree murder. Roybal v. People, 177 Colo. 144, 493 P.2d 9 (1972).

Instruction held not to express court’s belief in guilt of accused. An instruction declared that “deliberately” does not mean brooded over, or reflected upon, for a week, day or hour, “but an intent to kill executed by the defendant” in cold blood. The use of the definite article in referring to the accused was held not to be taken as the court’s expression of a belief in his guilt. King v. People, 54 Colo. 122, 129 P. 235 (1912).

Court is not required to instruct as to grade unsupported by evidence. In a homicide case, the court is not required to instruct on second degree murder where there is no evidence upon which to base such an instruction. Jones v. People, 93 Colo. 282, 26 P.2d 103 (1933); Reppin v. People, 95 Colo. 192, 34 P.2d 71 (1934).

In a prosecution for murder where there is no evidence from which a jury would be justified in finding the defendant guilty of manslaughter, a trial judge is not required to instruct upon that grade of homicide. Crawford v. People, 12 Colo. 290, 20 P. 769 (1888); Mow v. People, 31 Colo. 351, 72 P. 1069 (1903); Carpenter v. People, 31 Colo. 284, 72 P. 1072 (1903); Demato v. People, 49 Colo. 147, 111 P. 703 (1910).

In a case of felonious homicide, if the evidence shows the killing to have been deliberate and intentional, there is no question of manslaughter presented, and therefore no reason for submitting that question to the jury. Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956).

Murder in the second degree is not an issue where there are no facts in the record justifying submission of instructions and a verdict defining second degree murder. Early v. People, 142 Colo. 462, 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960).

An instruction on second degree murder is improper where, by the evidence, the crime was perpetrated in the commission of one of the felonies named, for in such circumstances the verdict must be first degree murder or acquittal. Jones v. People, 146 Colo. 40, 360 P.2d 686 (1961).

But prerogative should be exercised with caution. Where there is an affray and where self-defense is relied on, the court exercises an exceedingly dangerous prerogative in refusing to charge upon the minor as well as the graver offenses covered by the indictment. He should be absolutely certain that there is an entire absence of evidence bearing upon the particular grade or grades omitted. Young v. People, 47 Colo. 352, 107 P. 274 (1910); Gallegos v. People, 136 Colo. 321, 316 P.2d 884 (1957).

Instruction on manslaughter held properly refused. Shank v. People, 79 Colo. 576, 247 P. 559 (1926).

Where the evidence reveals that defendant participated in a brutal and heartless assault and robbery committed on the person of the deceased, no other verdict than that of first degree murder would have been justified, and it was not error to omit instruction on the lesser degrees of homicide. Ceja v. People, 142 Colo. 447, 351 P.2d 271 (1960).

Failure of trial court to give instruction relating to fists as a deadly weapon was not error where the evidence presented did not justify the giving of such instruction. People v. Duran, 185 Colo. 359, 524 P.2d 296 (1974).

Error not to instruct on manslaughter. When there is competent evidence which could conceivably reduce a homicide to manslaughter, the defendant is entitled to an instruction thereon, as where homicides occur during an affray and are unintentional, accidental, a result of misadventure, or in self-defense. Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956).

When there is any evidence, however improbable, unreasonable, or slight, which tends to reduce a homicide to the grade of manslaughter, a defendant is entitled to an instruction thereon upon the hypothesis that the same is true, and that it is for the jury, under proper instructions, and not the trial judge, to weigh and consider the evidence and determine therefrom what grade of crime, if any, was committed, and a court’s refusal to instruct thereon is reversible error. Gallegos v. People, 136 Colo. 321, 316 P.2d 884 (1957); People v. Maes, 43 Colo. App. 426, 609 P.2d 1105 (1979).

Refusal to instruct on a lesser included offense in a homicide case is reversible error as long as there is some evidence, however slight, tending to establish the lesser included offense. People v. Shaw, 646 P.2d 375 (Colo. 1982).

If there is evidence tending to establish a statutory grade of homicide, the court’s refusal to instruct thereon is error. Vigil v. People, 143 Colo. 328, 353 P.2d 82 (1960).

Where during the trial for first degree murder defendant presented a plausible case for self-defense, which even if the jury deemed it to be an overreaction, nevertheless would negate the elements of murder, the trial court should have instructed the jury on the lesser offense of manslaughter, as defendant requested. People v. Miller, 187 Colo. 239, 529 P.2d 648 (1974).

Jury may be instructed that there is no evidence of manslaughter. If there was no evidence upon which a verdict of manslaughter could be based, then the trial court was justified in instructing the jury to that effect. Henwood v. People, 54 Colo. 188, 129 P. 1010 (1913).

In a murder trial an erroneous instruction taking from the jury the consideration of all degrees of murder, excepting the first, is not grounds for reversing a conviction in the first degree and a sentence of life imprisonment, where the entire evidence, including that of the accused, excludes the idea of manslaughter and fully warrants the conviction and the infliction of the death penalty. Wickham v. People, 41 Colo. 345, 93 P. 478 (1907).

Refusal to instruct that there can be no conviction for less than first degree murder may be error. Where upon the trial of an indictment for murder, the evidence shows that the crime was deliberate, and no fact is shown leading to a contrary inference, there should be no conviction of the crime in any less degree. The refusal of the court below to instruct accordingly on request of the prisoner is prejudicial error. Dickens v. People, 67 Colo. 409, 186 P. 277 (1919).

Or that only issue for determination is whether punishment shall be death or life imprisonment. Where, in a homicide case, it is admitted that the killing was done in the perpetration of a robbery and in no other way, the offense being murder of the first degree, the trial court properly instructed the jury that the only issue for them to determine was whether the punishment to be inflicted should be death or imprisonment for life. Reppin v. People, 95 Colo. 192, 34 P.2d 71 (1934).

No error in failing to instruct jury on attempted first degree murder where victim’s injuries were such that no rational jury could have found the shooter acted with anything but a premeditated intent to cause death. People v. Brown, 218 P.3d 733 (Colo. App. 2009), aff’d, 239 P.3d 764 (Colo. 2010).

When court must instruct jury on second degree murder. Trial court does not have to instruct jury on the lesser included offense when there is no evidence to support the instruction. People v. Jones, 677 P.2d 383 (Colo. App. 1983), rev’d, 711 P.2d 1270 (Colo. 1986).

Error to submit nonfelony murder to jury. Where a petitioner’s acts from the time he took money from the victim until he shot the victim were one continuous integrated attempt to successfully complete his crime and escape detection, and the escape with ill-gotten gains was as important to the execution of the robbery as gaining possession of the property, robbery and homicide were not distinct transactions, and, therefore, submission of a nonfelony murder to jury would not have been justified. Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962), aff’d, 316 F.2d 284 (10th Cir. 1963).

Where the charge is first degree murder occurring during the commission of a felony, lesser included offenses need not be submitted to the jury. Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972).

Felony murder conviction based upon crime of simple robbery sustained without jury finding existence of aggravation even though jury instruction included allegation of aggravation. People v. Driggers, 812 P.2d 702 (Colo. App. 1991).

Where jury was instructed that if it found the People had failed to prove the elements of first degree murder beyond a reasonable doubt, it should consider any of the lesser offenses, not just second degree murder but also provoked passion manslaughter, the instructions adequately described the prosecution’s burden of proof and did not unconstitutionally shift the burden of proof to the defendant in violation of his due process rights. People v. Seigler, 832 P.2d 980 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993).

Defendant is not entitled to an instruction on the affirmative defense of disengagement from the crime for a charge of felony murder where the defendant failed to present evidence of each of the elements listed in subsection (2). People v. Lucas, 992 P.2d 619 (Colo. App. 1999).

Defendant is not entitled to an instruction on self-defense in trial for extreme indifference murder. For certain actions to constitute self-defense, defendant must have acted in a reasonable manner. Finding a defendant guilty of extreme indifference murder necessarily precludes a finding that his actions were reasonable, as the “universal malice” element of the offense requires the jury to conclude that the defendant acted with aggravated recklessness. People v. Fernandez, 883 P.2d 491 (Colo. App. 1994).

Defendant not entitled to instruction that jury must reach unanimous decision as to whether defendant committed first degree murder after deliberation either as a complicitor or as principal. Those alternative legal theories are two means of committing a single offense, and are not an impermissible distinction requiring a unanimity instruction. People v. Hall, 60 P.3d 728 (Colo. App. 2002).

F. Affirmative Defense.

Self-defense may be available as an affirmative defense to a predicate felony but not as to the resulting death. People v. Renaud, 942 P.2d 1253 (Colo. App. 1996).

Self-defense does not apply to felony murder. Trial court merged the second degree murder charge into the felony murder charge, thus, the only murder charge remaining was felony murder. As a result, any error in the self-defense instruction as given was harmless. People v. Palmer, 87 P.3d 137 (Colo. App. 2003).

IV.VERDICT AND SENTENCE.

It was error to grant a motion for a directed verdict in a murder prosecution on the ground that there was no evidence of premeditation based on fact that there was no acquaintanceship between defendant and deceased and no evidence of animosity between them, since malice is not synonymous with motive, and motive is not essential in murder prosecution. People v. Spinuzzi, 149 Colo. 391, 369 P.2d 427 (1962), overruled on other grounds in People v. Kirkland, 174 Colo. 362, 483 P.2d 1349 (1971).

No verdict other than first degree murder possible where the evidence overwhelmingly establishes the guilt of the defendant in a brutal and heartless assault and robbery committed upon the person of the deceased, and the defendant had a fair trial, one that was conducted in all respects pursuant to law. Ceja v. People, 142 Colo. 447, 351 P.2d 271 (1960).

Where murder is committed in the perpetration or attempt to perpetrate one of the felonies specified in this section, there is only one degree of murder, namely, murder of the first degree. If the uncontradicted evidence is to the effect that murder was committed in one of the ways specified above, and in no other way, the question of second degree murder is not in the case, and the defendant should be found guilty of murder of the first degree or acquitted; there is no middle course. Jones v. People, 93 Colo. 282, 26 P.2d 103 (1933); Early v. People, 142 Colo. 462, 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960).

In a capital case the punishment to be inflicted rests with the jury, and refusal of the trial court to accept a plea of guilty of second degree murder on recommendation of the district attorney was upheld. Frady v. People, 96 Colo. 43, 40 P.2d 606 (1934).

One of the appointed functions of jurors is to fix the penalty in first degree murder cases. Fleagle v. People, 87 Colo. 532, 289 P. 1078 (1930).

The particular manner in which a murder is committed does not govern the penalty when a verdict in the first degree is returned, but the penalty to be imposed is a matter solely for the jury to fix, either at imprisonment for life, or death. Henwood v. People, 57 Colo. 544, 143 P. 373 (1914).

Term of imprisonment is within discretion of court. The term of imprisonment within the limits prescribed is wholly within the discretion of the court. Arrano v. People, 24 Colo. 233, 49 P. 271 (1897).

Life imprisonment is minimum sentence for first degree murder. People v. Pacheco, 41 Colo. App. 188, 581 P.2d 741 (1978).

Error in enhancement of sentence for crime of violence. Where a defendant is convicted of first degree murder, and the mittimus reads that he was found to have committed a “crime of violence”, but the jury was not instructed on the elements of crime of violence nor given a separate verdict form or interrogatory as required, enhancement of sentence for having committed a crime of violence would be plain error. The cause must be remanded for correction of the mittimus to show conviction of first degree murder only, and for imposition of sentence on that crime only. People v. Thrower, 670 P.2d 1251 (Colo. App. 1983).

Although defendant could not be convicted for felony-murder and murder after deliberation based on killing of single victim, sufficient evidence existed to sustain defendant’s conviction for first degree murder, and thus judgment of conviction for first degree murder after deliberation and sentence imposed thereon would be affirmed while judgment of conviction and sentence for felony-murder would be vacated. People v. Brown, 731 P.2d 763 (Colo. App. 1986).

Although a finding of specific intent to kill a particular victim precludes a simultaneous finding of extreme indifference to the value of human life generally, it is permissible nonetheless for the People to charge on two different theories of first degree murder. After the close of evidence, the People may, but are not required to, elect between the theories charged. People v. Rodriguez, 888 P.2d 278 (Colo. App. 1994).

Defendant’s remedy was not a new trial where jury returned guilty verdicts on the theory of first degree murder and attempted first degree murder by extreme indifference and on the lesser included offenses, under either theory of first degree murder, of second degree murder and attempted second degree murder; rather, the remedy is to merge the lesser offense of second degree murder into the greater. People v. Rodriguez, 888 P.2d 278 (Colo. App. 1994).

A verdict of guilt on second degree murder, as a lesser included offense to a charge of first degree murder after deliberation is not legally inconsistent with a verdict of guilt on a charge of first degree murder by extreme indifference. No simultaneous acceptance and rejection by the jury of evidence relied upon for these convictions occurred since the jury’s determination that defendant did not act with deliberation did not require rejection of evidence that he acted knowingly and with universal malice. People v. Rodriguez, 888 P.2d 278 (Colo. App. 1994); People v. Ellis, 30 P.3d 774 (Colo. App. 2001).

Jury’s province to determine degree of murder evidence justifies. Assuming the sufficiency of the evidence to support first degree murder, it is strictly within the province of the jury to evaluate the evidence and say by its verdict whether the evidence justifies a verdict of first or second degree murder. People v. Lankford, 185 Colo. 445, 524 P.2d 1382 (1974).

Sentences concurrent with life sentence proper. Where the defendant was sentenced for life imprisonment for first degree murder and lesser sentences for first degree burglary and theft which the jury found he had committed, and all sentences were imposed concurrently with the life sentence which the jury ordered, there was no error. People v. Salas, 189 Colo. 111, 538 P.2d 437 (1975).

Defective sentence may be amended to supply minimum. Smith v. Best, 115 Colo. 494, 176 P.2d 686 (1946).

Trial court may correct sentence where punishment only reversed. In a first degree murder case when the United States supreme court affirms the guilt verdict, and invalidates the punishment portion of the verdict only because the jury was not constitutionally qualified to fix the death penalty, and the sole alternative under the statute as to punishment available to the jury is life imprisonment, the entry by the trial court of such a judgment is a mere ministerial act within the power and authority of the trial judge under the terms and within the contemplation of Crim. P. 35. Segura v. District Court, 179 Colo. 20, 498 P.2d 926 (1972).

Sentence of life imprisonment with no possibility of parole for a juvenile offender was not disproportionate to offense under this section. People v. Fernandez, 883 P.2d 491 (Colo. App. 1994).

By | 2017-04-01T15:42:07+00:00 April 1st, 2017|Comments Off on CO 18-3-102. Murder in the first degree