In Colorado, the term homicide is used to cover a range of offenses involving the killing of one person by another.
First Degree Murder:
Proof of a killing alone is not proof of murder. First Degree Murder in Colorado is defined as causing the death of another person after deliberation and with intent to cause the death of a person other than oneself. Notice the intent does not necessarily have to be to kill the person who ends up dying. The statute specifically allows an accused to be convicted first degree murder for accidentally killing someone when the intent was to kill someone else.
- Not the Shooter?
First Degree Murder can also apply where a person is killed during the commission of some other crime, such as kidnapping or sexual assault. If an accused is part of a group engaged in a robbery, and another member of the group shoots and kills a bystander, all members of the group can be convicted of first degree murder. This rule relates to the felony murder rule in Colorado, which is covered in greater detail below.
- Mass shootings and “Universal Malice”
First Degree Murder will also be charged where the prosecution believes they can prove the accused acted with an attitude of universal malice, such as in some mass shooting cases. This rule requires the prosecution to prove that the accused acted knowingly in such as way as to create a grave risk of death to others, and that this conduct resulted in the death of another. Universal malice may also be referred to as extreme indifference murder. A Colorado court in 2001 interpreted the relevant provision of this statute to apply to acts which are intended to put many lives in danger.
- Unintended Death
The requirements of intent to kill and deliberation generally set First Degree Murder apart from other homicide charges. As mentioned above in reference to the felony murder rule, that is not always true. The statute also extends first degree murder to cover a few other scenarios where there is no intent by the accused to kill. Some examples include selling drugs to children at school resulting in the death of the child, providing false testimony which results in execution of an innocent person, and child abuse resulting in death by a person in a position of trust.
- After Deliberation:
In our state and in the context of a murder charge, “after deliberation” does not just mean that something was done knowingly or intentionally, and is not established by the fact that a deadly weapon was used. Use of a deadly weapon may serve as an indication of intent, but this fact alone will not establish deliberation. Knowing and intentional killing may be required elements of the prosecution’s case, and may be required elements of a showing of deliberation. However, if a statute requires that a crime be committed after deliberation, in Colorado that means the crime occurred only after the accused had an opportunity to reflect on what he or she was about to do. This has not been defined as a specific amount of time, and some attempts to do so have been found to be error by Colorado courts. Prosecutors argue that this could happen very quickly. However, our statutes require that a person exercise some judgment before the “after deliberation” requirement is met. After deliberation means a crime was not simply committed on impulse.
Second Degree Murder:
Second Degree Murder is generally charged when a person is accused of knowingly causing the death of another person. Second Degree Murder is most often distinguishable from murder in the first degree by fact that it does not require deliberation. Second Degree Murder is most often a class 2 felony, although if the act causing death was committed in the heat of passion, it is a class 3 felony. Either way, this charge is subject to crime of violence and extraordinary risk sentencing.
Felony murder is generally charged when someone is killed while a felony is being committed. A murder charge pursuant to the felony murder rule can raise complications regarding whether the felony murder rule replaces the mental state requirements included in the elements of murder. It is important for purposes of this site to know that it is possible for an accused to be charged of murder based upon the actions of another person during the commission of a felony. An accused can also be charged with murder based on his or her own actions, of course, but without the the requirement that the accused intended to kill anyone. This conviction loophole, so to speak, can in some cases simply do away with the intent requirements typically applicable to murder charges, and charge a person with murder who never intended to kill anyone, simply because that person participated in a felony, and someone died while the felony was being committed. This rule also covers flight from the felony. Those accused of murder under this rule should seek representation immediately. The seriousness of these charges cannot be exaggerated. They operate just like any other murder charge, despite the fact that murder was never the intent. Often those accused of felony murder have valuable information that can be crucial to reaching a better resolution in their case. Sometimes felony murder charges are used by police to coerce the accused into cooperating or talking directly with police. Such cooperation, if it is to occur at all, is best accomplished with the advice and guidance of a criminal defense attorney. If you or someone close to you faces a murder charge, call our office now. Especially in felony murder cases, waiting can harm your case. Do not delay.
Manslaughter in Colorado can be defined simply as recklessly causing the death of another person. This charge also applies to intentionally causing or helping another person commit suicide, not including some proxy decision-makers and medical care-givers. It may seem that this charge, which describes reckless behavior resulting in death, overlaps the extreme indifference language in the first degree murder charge. However, the Colorado courts so far have distinguished the two by pointing to the more culpable state of indifference in the first degree murder statute. Because this charge is relatively broad, there may also be some concern that its language also overlaps the second degree murder statute. So far, Colorado courts have distinguished that one as well. Manslaughter is typically a class 4 felony, subject to crime of violence and extraordinary risk sentence enhancers.
Criminally Negligent Homicide:
Criminally Negligent Homicide is very much like the charge of Manslaughter, with the difference being criminally negligent conduct resulting in death instead of reckless conduct resulting in death. Criminally negligent homicide is a class 5 felony, and may be subject to sentence enhancers such as crime of violence and extraordinary risk crime. Like any homicide charge, this one requires a careful review and investigation of the underlying allegations to determine the risk of this charge becoming a more serious one as the case progresses and investigation continues.
The most common vehicular homicide charges can be distinguished by whether intoxication is involved. In those cases where a driver simply drove in a reckless manner resulting in a death, the prosecution will be required to prove both that the driving was reckless and that the reckless driving caused the death. If a driver is under the influence of alcohol or drugs the prosecution need not prove that the driving was reckless. In these cases, if the act of driving results in the death of another, the driver could be convicted of vehicular homicide regardless of whether the driving itself was reckless. Since causing the death of another person while driving under the influence is what we call a strict liability crime, these cases tend to focus more on whether a driver was in fact under the influence. It is also possible to defend against a vehicular homicide case, with or without the involvement of alcohol or drugs, by arguing that the driving was not the proximate cause of the death, but for most cases, the viability of that defense can be readily determined early on.
Vehicular homicide can be very complex because the statute defining this crime contains a long list of provisions governing how to determine whether a driver was under the influence, which tests may be conducted to determine that, and what presumptions are permissible based upon the outcome of this tests. These provisions even govern who can conduct some of these tests, and what happens if an accused refuses the test.
Vehicular homicide cases not only cover an almost unlimited variation of facts and scenarios, but they may also be subject to the addition of other charges, including murder or felony murder charges. Of course, these cases must be taken seriously, and acted on quickly.
Prosecutors are not required to prove motive in order to obtain a murder or homicide conviction. Even so, motive may play an important role in the presentation and argument of your best defense, or it may be central to the prosecution’s theory. Both can mean motive must be addressed. In fact, motive can make all the difference in a case, because juries are more likely to acquit if another party had motive to kill the victim, or if the prosecution’s theory includes a motive that does not hold up to challenge by the defense. Accordingly, while not something the prosecution must prove by law, motive often plays a central role in murder trials.
Defending a Murder Case:
For most people, it goes without saying that the accused in a murder case would likely benefit from the help of a criminal defense attorney. It is almost never advisable for a person accused of a crime to represent themselves. What may be less known, is that unlike most other criminal cases, many murder cases go to trial because the prosecution is not even open to negotiating an acceptable resolution, or because given the stakes, no other outcome is acceptable to either side. The accused will want an attorney who does not hesitate to go to trial if that is what is best for the defense. The accused will want an energetic attorney with trial experience. Attorney Vernon Ready has successfully defended those accused of a wide range of criminal charges, and does not hesitate to do so through the jury trial process where that is the best option for the accused.
If the accused is in jail during the trial preparation process, it is even more important that the people working the case on the outside are committed and diligent. In Colorado, most judges will make bonding out of jail on a murder charge very expensive or impossible. Being in custody while a defense team goes to work defending a murder case further complicates the matter, as access to the accused is more limited than it would be if the accused could simply come to our office as needed. This is true of almost any criminal charge. However, in murder cases, it usually works to the advantage of the defense to take all the time needed to fully investigate the case, consult experts, and fully challenge the prosecution at each step along the way. That takes time, and can often mean that the accused remains in custody longer than in other matters while the defense team builds the best defense possible. It is always better to take the time required and defend the case correctly, despite the fact that the accused, who is presumed innocent, must await trial in custody in many cases.
Taking the time needed getting to trial is not at all an indication that anyone should be taking their time getting a defense started at the beginning of a case. At the time a murder charge is filed, or before if possible, an accused and their family should be doing everything possible to secure representation immediately. Statements made by the accused right at the beginning of a case are very often turned against them later at trial. Police will try to get statements from the accused in most cases before formal charges are even filed. Statements made by the accused while in custody to guards, medical staff, and certainly statements made to other inmates can all cause irreparable damage to the defense. Even the behavior of the accused while in police interviews or in police custody can make a difference to a mental state defense, and the sooner an attorney is able to identify those issues, the more likely those factors can be preserved for the best possible defense later. Statements made during phone calls from the jail and sometimes during visits can be recorded by law enforcement and reviewed by prosecutors later in these cases. In murder cases, these kinds of “gotcha” tactics by law enforcement and prosecutors are to be expected. There is no substitute for early advice from a lawyer, and early communication that cannot be recorded by law enforcement.
As a case progresses, the defense and prosecution will argue a multitude of issues that a layman who is not familiar with the court rules and the law might overlook. Various tasks, such as reviewing phone calls from the jail, consulting with experts, interviewing witnesses, and following up on related leads will often be performed by different members of the defense team. Ideally, a team will be assembled of people committed to investigation, legal research, filing and arguing motions to limit prosecution overreach and unfair presentation of evidence, as well as identifying and obtaining expert testimony to challenge prosecution assumptions and conclusions. The prosecution has crime labs and biased experts who consider it their job to simply “catch the bad guy”. Law enforcement, prosecuting attorneys, and even the courts do not often challenge those experts who make a living testifying for the prosecution and telling them what they want to hear. We challenge them. We do it by identifying the appropriate independent experts who can hold the prosecution accountable when they rely on questionable science. The goal in most murder defense cases is to put together a team that is committed to identifying and presenting the best defense.
Murder cases require enormous commitment, energy and resources. Unless the case is being defended by a government organization like the office of the public defender, there is no way to avoid the fact that the best defended cases tend to be expensive. At Ready-Law, we seek to accomplish the most we can with the resources available to each client. We can do that by vetting expenses, assigning the right tasks to the right people, and carefully choosing to put the most effort into the most promising fights. We will never provide something less than our own best efforts. Accordingly, it is important to us to be very open about the significant costs of a murder defense early on. To reflect that, our required retainer for murder cases tends to be significantly higher than for other cases. This allows the accused and their friends and family to understand and plan for the financial sacrifice that these cases require.
The police and prosecution are likely working hard to convict. Let’s get to work assembling a team committed to your best defense. Call our office to find out how attorney Vernon Ready can help.