CO 18-3-104. Manslaughter

CO 18-3-104. Manslaughter

State: Colorado

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

C.R.S. 18-3-104 (2016)

18-3-104. Manslaughter

(1) A person commits the crime of manslaughter if:

(a) Such person recklessly causes the death of another person; or

(b) Such person intentionally causes or aids another person to commit suicide.

(c) (Deleted by amendment, L. 96, p. 1844, § 13, effective July 1, 1996.)

(2) Manslaughter is a class 4 felony.

(3) This section shall not apply to a person, including a proxy decision-maker as such person is described in section 15-18.5-103, C.R.S., who complies with any advance medical directive in accordance with the provisions of title 15, C.R.S., including a medical durable power of attorney, a living will, or a cardiopulmonary resuscitation (CPR) directive.

(4)

(a) This section shall not apply to a medical caregiver with prescriptive authority or authority to administer medication who prescribes or administers medication for palliative care to a terminally ill patient with the consent of the terminally ill patient or his or her agent.

(b) For purposes of this subsection (4):

(I) “Agent” means a person appointed to represent the interests of the terminally ill patient by a medical power of attorney, power of attorney, health care proxy, or any other similar statutory or regular procedure used for designation of such person.

(II) “Medical caregiver” means a physician, registered nurse, nurse practitioner, physician assistant, or anesthesiologist assistant licensed by this state.

(III) “Palliative care” means medical care and treatment provided by a licensed medical caregiver to a patient with an advanced chronic or terminal illness whose condition may not be responsive to curative treatment and who is, therefore, receiving treatment that relieves pain and suffering and supports the best possible quality of his or her life.

(c) Paragraph (a) of this subsection (4) shall not be interpreted to permit a medical caregiver to assist in the suicide of the patient.

HISTORY: Source: L. 71: R&RE, p. 419, § 1. C.R.S. 1963: § 40-3-104.L. 75: (1)(c) amended, p. 623, § 1, effective March 19; (1)(c) amended, p. 618, § 6, effective July 21.L. 79: (1)(c) amended, p. 726, § 3, effective July 1.L. 86: (1)(c) amended, p. 770, § 4, effective July 1.L. 93: Entire section amended, p. 1986, § 13, effective July 1.L. 94: (3) added, p. 1059, § 3, effective May 4.L. 96: (1)(b), (1)(c), and (2) amended, p. 1844, § 13, effective July 1.L. 2006: (4) added, p. 313, § 1, effective July 1.L. 2012: (4)(b)(II) amended, (HB 12-1332), ch. 238, p. 1059, § 15, effective August 8.

ANNOTATION

I. General Consideration.
II. Elements of Offense.
III. Trial and Prosecution.
A. Indictment and Information.
B. Evidence.
C. Defenses.
D. Instructions.

I.GENERAL CONSIDERATION.

Law reviews. For article, “One Year Review of Criminal Law and Procedure”, see 38 Dicta 65 (1961). For article, “Homicides Under the Colorado Criminal Code”, see 49 Den. L.J. 137 (1972). For article, “Mens Rea and the Colorado Criminal Code”, see 52 U. Colo. L. Rev. 167 (1981). For article, “How to Reconcile Advance Care Directives With Attempted Suicide”, see 42 Colo. Law. 97 (July 2013).

Annotator’s note. Since § 18-3-104 is similar to former § 40-2-4 to 40-2-7, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Section is a valid, religiously neutral, and generally applicable criminal statute that prohibits conduct a state is free to regulate, and was not a violation of petitioners rights under the free exercise clause of the first amendment to the United States Constitution. Sanderson v. People, 12 P.3d 851 (Colo. 2000).

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).

The term “under circumstances … manifesting extreme indifference to the value of human life”, contained in § 18-3-102, 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).

Second degree murder as defined in § 18-3-103 is “conceptually distinguishable” from intentional manslaughter. 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).

Distinction between manslaughter and second degree murder constitutional. The difference between the mental states required for second degree murder (knowingly) and manslaughter (recklessly) mirrors the distinction between practically certain of result on the one hand, and probability or contingency of result on the other and this difference is sufficient to avoid an equal protection violation. People v. Padilla, 638 P.2d 15 (Colo. 1981).

Section constitutionally distinguishable from second degree murder statute, § 18-3-103 (1)(a), because the two statutes require different mens rea elements for conviction. People v. DelGuidice, 199 Colo. 41, 606 P.2d 840 (1979); People v. Padilla, 638 P.2d 15 (Colo. 1981).

Convictions for felony child abuse and reckless manslaughter not inconsistent. There is no logical inconsistency between the guilty verdicts for the crimes of felony child abuse and reckless manslaughter. People v. Noble, 635 P.2d 203 (Colo. 1981).

The statutory language in this section and § § 18-3-102 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).

Prior to the 1975 amendment to § 18-1-501, subsection (1)(a) was unconstitutional. Subsection (1)(a) is unconstitutional, in that the requirement to sustain a conviction under that statute (recklessness) is indistinguishable from the requirement to sustain a conviction for criminally negligent homicide (criminal negligence). People v. Calvaresi, 188 Colo. 277, 534 P.2d 316 (1975); People v. Webb, 189 Colo. 400, 542 P.2d 77 (1975); Till v. People, 196 Colo. 126, 581 P.2d 299 (1978).

Jury could not distinguish between manslaughter and criminally negligent homicide. Where the court submitted instructions to the jury on second-degree murder and on the lesser included offenses of manslaughter and criminally negligent homicide, the jury could not rationally distinguish between the crimes of manslaughter and criminally negligent homicide, the lesser included offenses on which it was instructed. People v. Horrocks, 190 Colo. 501, 549 P.2d 400 (1976).

Reckless manslaughter and heat of passion manslaughter are of equal grade and neither is included within the other nor is reckless manslaughter included in criminally negligent homicide. People v. Gordon, 765 P.2d 633 (Colo. App. 1988).

Reckless manslaughter and criminally negligent homicide distinguished. People v. Shaw, 646 P.2d 375 (Colo. 1982).

Conviction of criminally negligent homicide held constitutional. Where defendant was charged with manslaughter and convicted of criminally negligent homicide as an included offense, the conviction was constitutional. People v. Palumbo, 192 Colo. 7, 555 P.2d 521 (1976).

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).

Where penalty for first degree assault limited. A person charged with first degree assault, who can establish that he acted in “heat of passion”, is constitutionally protected against receiving a greater penalty than he could have received had he caused the death of his victim. People v. Montoya, 196 Colo. 111, 582 P.2d 673 (1978).

Selection by jury of highest available grade of offense constitutes rejection of next lower included offense and all lesser offenses included within latter. People v. Gordon, 765 P.2d 633 (Colo. App. 1988).

Trial court did not abuse its discretion in excluding psychiatrist from testifying as an expert witness to explain to the jury the meaning of the terms “heat of passion” and “irresistible impulse”. Such issues were of an understandable nature to the jury without expert testimony. People v. Lanari, 811 P.2d 399 (Colo. App. 1989), aff’d, 827 P.2d 495 (Colo. 1992).

Vacating jury’s finding that defendant recklessly caused the victim’s death did not violate the defendant’s right to a trial by jury. 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).

Manslaughter is not a crime of violence for purposes of the United States sentencing guidelines. Because this state’s version of manslaughter involves only reckless conduct, not intentional or purposeful behavior as required under the guidelines, it is not a crime of violence. United States v. Armijo, 651 F.3d 1226 (10th Cir. 2011).

Applied in May v. People, 8 Colo. 210, 6 P. 816 (1885); St. Louis v. People, 120 Colo. 345, 209 P.2d 538 (1949); Hardy v. People, 133 Colo. 201, 292 P.2d 973 (1956); Robbins v. People, 142 Colo. 254, 350 P.2d 818 (1960); Edwards v. People, 160 Colo. 395, 418 P.2d 174 (1966); Romero v. People, 170 Colo. 234, 460 P.2d 784 (1969); People v. Thompson, 197 Colo. 299, 592 P.2d 803 (1979); People v. Grable, 43 Colo. App. 518, 611 P.2d 588 (1979); People v. Gallegos, 628 P.2d 999 (Colo. 1981); People v. Lee, 630 P.2d 583 (Colo. 1981); People v. Beland, 631 P.2d 1130 (Colo. 1981); People v. Christian, 632 P.2d 1031 (Colo. 1981); People v. Madson, 638 P.2d 18 (Colo. 1981); People v. Bookman, 646 P.2d 924 (Colo. 1982); People v. Sanchez, 644 P.2d 95 (Colo. App. 1982); People v. Police, 651 P.2d 430 (Colo. App. 1982); People v. Bartowsheski, 661 P.2d 235 (Colo. 1983).

II.ELEMENTS OF OFFENSE.

Common law rule of provocation. At common law, words of reproach, however grievous, were not provocation sufficient to free the killing party from the guilt of murder, nor were indecent, provoking actions and gestures, expressive of contempt or reproach, without an assault on the person. Murphy v. People, 9 Colo. 435, 13 P. 528 (1887).

The provisions of this section do not recognize provocation less in degree than that recognized as sufficient at common law. Murphy v. People, 9 Colo. 435, 13 P. 528 (1887).

This provision is a recognition of the frailty of human nature, the purpose of which is to reduce a homicide committed in the circumstances therein contemplated to the grade of manslaughter. Henwood v. People, 54 Colo. 188, 129 P. 1010 (1913).

Manslaughter defined. This section states that in order to be manslaughter, the killing must be the result of a sudden, violent impulse of passion. Sawyer v. People, 173 Colo. 351, 478 P.2d 672 (1970).

Element of deliberation lacking. A distinguishing feature between murder of either the first or second degree and manslaughter are the ingredients of premeditation and deliberation required in the former which are absent in the latter. Beckstead v. People, 133 Colo. 72, 292 P.2d 189 (1956); Bertalotto v. People, 175 Colo. 557, 488 P.2d 1100 (1971).

Attempted reckless manslaughter is a legally cognizable offense. People v. Thomas, 729 P.2d 972 (Colo. 1986); People v. Palmer, 944 P.2d 634 (Colo. App. 1997), aff’d in part and rev’d in part on other grounds, 964 P.2d 524 (Colo. 1998).

Provocation need not immediately precede act. The provocation or the injury inflicted on the killer by the victim, whether real or threatened, need not immediately precede the act. Ferrin v. People, 164 Colo. 130, 433 P.2d 108 (1967); Coston v. People, 633 P.2d 470 (Colo. 1981).

Where manslaughter is charged, while there is no strict requirement that the act constituting the provocation occur immediately before the killing, if there is evidence of a sufficient interval between the provocation and the killing for reason to prevail, the killing is murder and not manslaughter. English v. People, 178 Colo. 325, 497 P.2d 691 (1972).

Three-week interval sufficient to allow voice of reason. The record revealed no evidence which would support a verdict of manslaughter where the acts of provocation by the victim and his threats against the defendant all occurred no later than three weeks before the time of the shooting, which interval was sufficient for the voice of reason and humanity to be heard, and, this being so, the killing must be attributed to deliberate revenge punishable as murder. English v. People, 178 Colo. 325, 497 P.2d 691 (1972).

The term “another person” is not superfluous language, and the term is not satisfied by alleging the victim to be “any and all members of the public in [defendant’s] vicinity”. There was no evidence from which a reasonable jury could find that defendant’s driving jeopardized or threatened any oncoming traffic or individuals. People v. Griego, 2015 COA 31, — P.3d –.

The phrase “aids another to commit suicide” evidences a clear and unambiguous intent to apply only to persons who provide indirect types of aid or assistance to others who then kill themselves and not to persons who actively participate in the death of a suicidal person. People v. Gordon, 32 P.3d 575 (Colo. App. 2001).

The term “reasonable person” as it refers to subsection (1)(c) refers to an objectively reasonable person. Therefore, even if a particular defendant was provoked to kill in a sudden heat of passion, the evidence must also establish that an objectively reasonable person would have similarly suffered an irresistible passion to kill. People v. Dooley, 944 P.2d 590 (Colo. App. 1997) (decided under law as it existed prior to the 1996 repeal of subsection (1)(c)).

Discussion of element of implied malice required by former statute. People v. Hosier, 186 Colo. 116, 525 P.2d 1161 (1974).

III.TRIAL AND PROSECUTION.

A. Indictment and Information.

Manslaughter is sufficiently charged in indictment for murder. Manslaughter has always been recognized as an included offense in the crime and charge of murder, and to be sufficiently charged and covered by a good indictment for murder. Packer v. People, 8 Colo. 361, 8 P. 564 (1885).

An information charging murder in the first degree includes all the lower grades of criminal homicide. Baker v. People, 114 Colo. 50, 160 P.2d 983 (1945).

B. Evidence.

Section 18-1-803 does not require evidence of any psychiatric abnormality or independent testimony to analyze the effect of a blow on the defendant’s mental state. This effect may be inferred from the evidence present. People v. Delaney, 44 Colo. App. 366, 620 P.2d 44 (1980).

Court may deny admitting testimony that alcohol found in victim’s bloodstream. As a matter of law, a trial court does not abuse its discretion in denying the admission of an expert’s testimony that some alcohol and drug traces were found in the murder victim’s bloodstream without any effort to show how such substances might have affected the victim’s behavior. People v. Delaney, 44 Colo. App. 366, 620 P.2d 44 (1980).

Sufficient evidence of provocation. Walker v. People, 175 Colo. 173, 489 P.2d 584 (1971).

The term “reasonable person” as it refers to subsection (1)(c) refers to an objectively reasonable person. Therefore, even if a particular defendant was provoked to kill in a sudden heat of passion, the evidence must also establish that an objectively reasonable person would have similarly suffered an irresistible passion to kill. People v. Dooley, 944 P.2d 590 (Colo. App. 1997) (decided under law as it existed prior to 1996 repeal of subsection (1)(c)).

Question of provocation is for jury. The jury are the judges of the sufficiency of the provocation and passion that reduce a homicide to the grade of manslaughter. Murphy v. People, 9 Colo. 435, 13 P. 528 (1887).

Whether certain circumstances amounted to the statutory provocation or caused the passion which the section denominates irresistible was not for the court to determine, but is properly a question for the jury. Henwood v. People, 54 Colo. 188, 129 P. 1010 (1913).

Likewise, credibility and force of evidence as to manslaughter. On the trial of a person indicted for murder, although the evidence may overwhelmingly show that the killing was in fact murder and not manslaughter, or an act performed in self-defense, so long as there is evidence relevant to the issue of manslaughter, its credibility and force are for the jury, and cannot be matter of law for the decision of the court. Henwood v. People, 54 Colo. 188, 129 P. 1010 (1913).

If there is evidence relative to manslaughter offered by either the people or the defendant charged with first degree murder, its credibility and weight is for the jury to consider in determining the facts, and proper instructions upon manslaughter should be given. Baker v. People, 114 Colo. 50, 160 P.2d 983 (1945); Vigil v. People, 143 Colo. 328, 353 P.2d 82 (1960).

A person charged with murder is triable 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. Where there is testimony tending to prove manslaughter, whether or not it is sufficient to justify a verdict of manslaughter is for the jury to determine, and not the court. Gallegos v. People, 136 Colo. 321, 316 P.2d 884 (1957); Sanchez v. People, 172 Colo. 168, 470 P.2d 857 (1970).

Accused cannot complain where evidence warranted conviction of higher degree. The evidence warranting a conviction for murder in the second degree, the accused has no ground to complain of a conviction of manslaughter. Campbell v. People, 55 Colo. 302, 133 P. 1043 (1913).

“Cooling time” not precisely defined. No precise formulation may be offered to define what “cooling time” constitutes a sufficient interval to allow a person to function rationally after having been seriously provoked. This judgment depends upon human nature as it is generally understood, the particular emotional state of the offender, and, especially, upon the surrounding circumstances of the case. Coston v. People, 633 P.2d 470 (Colo. 1981).

“Cooling time” is a question of law for the court, and not a question for the jury. Wickham v. People, 41 Colo. 345, 93 P. 478 (1907).

The question of whether there has been a sufficient cooling off period is one of law for the court. English v. People, 178 Colo. 325, 497 P.2d 691 (1972).

The question of whether there is sufficient evidence of a cooling off period between provocation and killing is initially one of law for the court. Coston v. People, 633 P.2d 470 (Colo. 1981).

C. Defenses.

Mutual combat no excuse for murder of nonparticipant. A defendant cannot avoid the consequences of a deliberate, intentional act of murder on grounds of “mutual combat” or “hot state of blood” when the person killed was not a party to the mutual combat nor a bystander accidentally and unintentionally slain. Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956).

Self-defense may be asserted as a defense to attempted heat of passion manslaughter. Thomas v. People, 820 P.2d 656 (Colo. 1991).

For a crime requiring recklessness, criminal negligence, or extreme indifference, like reckless manslaughter, self-defense is not an affirmative defense; rather, it is an element-negating traverse. The prosecution bears no burden in disproving self-defense when self-defense is not an affirmative defense. The court did not err in instructing the jury that the prosecution did not bear the burden of disproving self-defense in relation to the reckless manslaughter charge. People v. Pickering, 276 P.3d 553 (Colo. 2011) (overruling People v. Lara, 224 P.3d 388 (Colo. App. 2009) and People v. Taylor, 230 P.3d 1227 (Colo. App. 2009)); People v. Lane, 2014 COA 48, 343 P.3d 1019.

No defense to manslaughter indictment that evidence shows homicide was murder. It is no defense to an indictment for manslaughter that the homicide therein alleged appears by the evidence to have been murder. In re Garvey, 7 Colo. 384, 3 P. 903 (1884); Murphy v. People, 9 Colo. 435, 13 P. 528 (1887).

D. Instructions.

Defendant entitled to jury instruction on lesser included offense where jury could reasonably doubt defendant’s guilt of greater offense but be persuaded beyond a reasonable doubt of defendant’s guilt of lesser included offense. People v. Gordon, 765 P.2d 633 (Colo. App. 1988).

The very essence of the manslaughter instruction is that the killing must be preceded by a serious and highly provocative injury inflicted upon the person committing the homicide. Ferrin v. People, 164 Colo. 130, 433 P.2d 108 (1967).

Evidence of provocation should not be omitted from instructions. People v. Morant, 179 Colo. 287, 499 P.2d 1173 (1972).

Defense of accidental or excusable killing does not waive the question of manslaughter, and did not make unnecessary the giving of instructions thereon. Baker v. People, 114 Colo. 50, 160 P.2d 983 (1945); Vigil v. People, 143 Colo. 328, 353 P.2d 82 (1960).

Where homicides occurring during an affray are unintentional, accidental, a result of misadventure, or in self-defense, it is error not to instruct as to manslaughter. Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956).

Under a variety of fact situations in a homicide case, the self-defense evidence could conceivably also be a basis for a manslaughter instruction. English v. People, 178 Colo. 325, 497 P.2d 691 (1972).

When defendant entitled to manslaughter instruction. To be entitled to a manslaughter instruction, the defendant must be able to point to some evidence presented at trial which would permit a jury to find, in addition to concluding that the defendant intentionally killed the victim, that all the elements listed in subsection (1)(c) existed at the time the offense was committed. Coston v. People, 633 P.2d 470 (Colo. 1981); People v. Garcia, 826 P.2d 1259 (Colo. 1992).

Evidence held to support instruction on manslaughter. Abila v. People, 80 Colo. 169, 249 P. 649 (1926).

Error for court to take question of manslaughter from the jury, as there was not an entire absence of evidence tending to establish manslaughter. Henwood v. People, 54 Colo. 188, 129 P. 1010 (1913).

If the evidence tends to prove a case of manslaughter, or if, upon the evidence, there is any doubt whatever as to the grade of the crime, the question of manslaughter ought to be submitted to the jury. Jones v. People, 93 Colo. 282, 26 P.2d 103 (1933).

When there is competent evidence which could conceivably reduce a homicide to manslaughter, the defendant is entitled to an instruction thereon. 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); Ferrin v. People, 164 Colo. 130, 433 P.2d 108 (1967); Sanchez v. People, 172 Colo. 168, 470 P.2d 857 (1970); English v. People, 178 Colo. 325, 497 P.2d 691 (1972); People v. Maes, 43 Colo. App. 426, 609 P.2d 1105 (Colo. 1979); People v. Garcia, 826 P.2d 1259 (Colo. 1992).

A defendant in a homicide case is entitled to an instruction on lesser included offenses when there is evidence, however manifested, whether presented by the people, or by the defense, to indicate the commission of the lesser offense. Sanchez v. People, 172 Colo. 168, 470 P.2d 857 (1970); People v. Gordon, 765 P.2d 633 (Colo. App. 1988).

Only in those cases where there is evidence — even though it be slight — that there was a serious and highly provoking act by the victim against the accused which could possibly excite an irresistible passion is a manslaughter instruction required when requested. People v. Mullins, 188 Colo. 23, 532 P.2d 733 (1975).

Refusal to instruct on lesser offense is reversible error. People v. Gordon, 765 P.2d 633 (Colo. App. 1988).

Defendant was not entitled to an instruction on reckless manslaughter where the evidence showed that the defendant did not intend to kill her husband when she picked up the axe, but that something “just snapped” and she hit him. The court found that there was no evidence that, when the defendant hit her husband with the axe, she was conscious of the risk of death. People v. Garcia, 1 P.3d 214 (Colo. App. 1999), aff’d on other grounds, 28 P.3d 340 (Colo. 2001).

Trial court not required to give a lesser offense instruction requested by a defendant unless there is some evidence tending to establish the lesser offense and a rational basis upon which the jury may acquit the defendant of the greater offense but convict him or her of the lesser. People v. Gordon, 32 P.3d 575 (Colo. App. 2001).

Defendant not entitled to jury instruction on aiding suicide manslaughter where the trial court found no evidence to support defendant’s request because the aiding suicide manslaughter instruction applies only to a defendant who furnishes a person with a means of committing suicide, but instead of passively or indirectly participating in the suicidal person’s death, defendant actively participated in causing the death of the victim. People v. Gordon, 32 P.3d 575 (Colo. App. 2001).

There is no right to a jury instruction on a lesser included offense if the element that distinguishes the greater from the lesser is uncontested. Where it is undisputed that death occurred as a result of defendant’s conduct, there is no right to an instruction on reckless endangerment in a reckless manslaughter case. People v. Hall, 59 P.3d 298 (Colo. App. 2002).

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); People v. Wadley, 890 P.2d 151 (Colo. App. 1994).

Where defense did not contemporaneously object, prosecutor’s statement in closing arguments that he had not proved heat of passion manslaughter beyond a reasonable doubt was not plain error. Prosecutor also reminded the jury that he had the burden of proving all elements of an offense and the court found that in light of the evidence presented at trial, the prosecutor’s comment did not cast doubt on the reliability of the conviction. People v. Wadley, 890 P.2d 151 (Colo. App. 1994).

Where court’s heat of passion manslaughter instruction was based on language of § 18-3-104 and terms used were susceptible to general understanding, defendant’s tendered instruction which contained definitions of terms used in the “heat of passion manslaughter” instruction was not necessary. People v. Ferrero, 874 P.2d 468 (Colo. App. 1993).

Defendant’s tendered instruction defining “cooling time” was not necessary where the court’s instruction was based on the language of § 18-3-104 and words used were understandable to person of common intelligence. People v. Wadley, 890 P.2d 151 (Colo. App. 1994).

Jury instruction on a lesser included offense on attempted heat of passion manslaughter is not required to be given unless the defendant requests it. Where no request was made, it was presumed that the defendant elected to take his or her chances on an outright acquittal on an attempted second degree murder charge. People v. Moore, 860 P.2d 549 (Colo. App. 1993).

Heat of passion manslaughter was a specific, lesser, nonincluded offense of second degree murder rather than a statutory mitigating factor. Walker v. People, 932 P.2d 303 (Colo. 1997) (decided under law in effect prior to deletion by amendment of subsection (1)(c)).

Court may exclude question of manslaughter when no evidence thereof. Notwithstanding the provisions of this section, the court may exclude from the jury the question of manslaughter where there is no evidence of that degree of the crime or the defense is upon a theory having no relation thereto. Sevilla v. People, 65 Colo. 437, 177 P. 135 (1918).

Failure to charge on manslaughter held no error. Under the evidence where there is no element of manslaughter involved, there is no error in the failure of the court to submit that question to the jury. Edwards v. People, 73 Colo. 377, 215 P. 855 (1923).

Under facts of this case, instruction on manslaughter was not necessary. Williams v. People, 114 Colo. 207, 158 P.2d 447 (1945).

Evidence failed to warrant submission of instruction to jury on manslaughter. Berger v. People, 122 Colo. 367, 224 P.2d 228 (1950).

Where no instruction on manslaughter was tendered or requested, even if such an instruction was proper, mere nondirection would not constitute error. Berger v. People, 122 Colo. 367, 224 P.2d 228 (1950).

Where the evidence only shows the killing to have been deliberate and intentional, there is no question of manslaughter present and no reason to submit it to the jury. Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956).

If there be a total absence of evidence relating to the particular grade of homicide disregarded, the charge to the jury cannot be successfully challenged on the ground of such omission. Gallegos v. People, 136 Colo. 321, 316 P.2d 884 (1957).

Where the record is devoid of any evidence which would have supported a verdict of guilty of manslaughter, the court was not obliged to instruct thereon. Hampton v. People, 171 Colo. 153, 465 P.2d 394 (1970).

No error in failing to give self-defense instruction. When an element of the crime charged is that the defendant acted in a reckless or criminally negligent manner, and the trial court properly instructs the jury as to each element, no error results from the court’s failure to give a self-defense instruction. People v. Fink, 194 Colo. 516, 574 P.2d 81 (1978).

To entitle a defendant to a heat of passion instruction, the supporting evidence must tend to establish the four elements of subsection (1)(c). People v. Dooley, 944 P.2d 590 (Colo. App. 1997) (decided under law as it existed prior to the 1996 repeal of subsection (1)(c)).

Instruction on mental condition required if any evidence tends to establish impairment. An instruction on impaired mental condition is required if there is any evidence tending to establish that a blow to the defendant’s head impaired his mental condition sufficiently to preclude formation of a conscious objective to cause the victim’s death. People v. Delaney, 44 Colo. App. 366, 620 P.2d 44 (1980).

Error in charge on first-degree murder not prejudicial to one convicted of lower degree of murder or manslaughter. Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956).

Court’s response to jury inquiry on attempted reckless manslaughter, although a comment on the evidence and not a proper instruction on the law, did not constitute plain error. Hypothetical given by the court, when considered in the context of the jury instructions as a whole, neither misled the jury nor cast serious doubt on the verdict. People v. Allen, 43 P.3d 689 (Colo. App. 2001).

Instruction on elements of manslaughter under previous statute held erroneous. People v. Morant, 179 Colo. 287, 499 P.2d 1173 (1972).

Instructions held proper. Balltrip v. People, 157 Colo. 108, 401 P.2d 259 (1965).

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