Murder, Manslaughter, and Criminally Negligent Homicide

by Colorado Criminal Defense Lawyer – H. Michael Steinberg – Violent Crimes – Homicide Crimes Criminal Defense Law Firm

In Colorado, Crimes involving Homicide take many forms. What follows are the statutes and then their “constituent elements.” The elements are the form of the statute (law) that goes to the jury at the end of the jury trial. The jury instructions break down the crime into a formula that assists the jury in understanding whether the Prosecution has proven the charge beyond a reasonable doubt.

This Grid / Chart Will assist in placing the crimes into the context of Colorado’s Criminal Sentencing Laws:

Felony Class	Minimum Sentence	Maximum Sentence	Mandatory Period Parole
1	Life imprisonment	Death	None
2	Eight years imprisonment	Twenty-four years imprisonment	Five years
3	Four years imprisonment	Twelve years imprisonment	Five years
4	Two years imprisonment	Six years imprisonment	Three years
5	One year imprisonment	Three years imprisonment	Two years
6	One year imprisonment	Eighteen months imprisonment	One Year

Colorado Murder in the First Degree (18-3-102)

1. A person commits the crime of murder in the first degree if:
   1. 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
   2. 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
   3. By perjury or subornation of perjury he procures the conviction and execution of any innocent person; or
   4. 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
   5. 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
   6. 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:
   1. Was not the only participant in the underlying crime; and
   2. Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and
   3. Was not armed with a deadly weapon; and
   4. Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article, or substance; and
   5. 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
   6. 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.

Murder in the First Degree (After Deliberation) The Elements of the Charge

The elements of the crime of murder in the first degree are:

That the defendant, in the State of Colorado, at or about the date and place charged, after deliberation, and with intent to cause the death of a person other than himself, caused the death of __________________.

Murder in the First Degree (Felony Murder) The Elements of the Charge

The elements of the crime of murder in the first degree (felony murder) are:

That the defendant, in the State of Colorado, at or about the date and place charged,acting alone or with one or more persons,committed or attempted to commit the crime of (the felony) as defined in instruction _____ , and in the course of or in furtherance of the ( the felony) he/she was committing or attempting to commit, or of immediate flight therefrom the death of a person, other than one of the participants, was caused by anyone.Affirmative Defense(s)to Felony Murder

It is an affirmative defense to the charge of murder in the first degree (felony murder) that the defendant:

1. was not the only participant in the (the felony) ; and
2. did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and
3. was not armed with a deadly weapon; and
4. had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article, or substance; and
5. did not engage himself in or intend to engage in and had no reasonable ground to believe that any other participant intended to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury; and
6. endeavored to disengage himself from the commission of (the felony) 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.

In addition to proving all the elements of the crime charged beyond a reasonable doubt, the prosecution also has the burden to disprove any one or more of the elements of the affirmative defense beyond a reasonable doubt.

Murder in the First Degree (Extreme Indifference) the Elements

The elements of the crime of murder in the first degree are:

1. that the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally,
4. knowingly,
5. engaged in conduct which created a grave risk of death to a person or persons other than himself, and
6. thereby caused the death of another.

The Colorado Law of Second Degree Murder Murder in the Second Degree (18-3-103)

1. A person commits the crime of murder in the second degree if the person knowingly causes the death of a person.
2. Diminished responsibility due to self-induced intoxication is not a defense to murder in the second degree.
3. 1. Except as otherwise provided in paragraph (b) of this subsection (3), murder in the second degree is a class 2 felony.
   2. Notwithstanding the provisions of paragraph (a) of this subsection (3), murder in the second degree is a class 3 felony where the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person; but, if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the killing is a class 2 felony.
4. A defendant convicted pursuant to subsection (1) of this section shall be sentenced by the court in accordance with the provisions of section 18-1.3-406

Colorado Murder in the Second Degree – The Elements of the Charge

The elements of the crime of murder in the second degree are:

1. that the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. knowingly,
4. caused the death of another person.

The Defense (a mitigator which lowers the penalty) – of Provoked Passion

If you find the defendant not guilty of second degree murder, you should disregard this instruction and fill out the verdict form reflecting your not guilty verdict. If, however, you find the defendant guilty of second degree murder, you should fill out the verdict form reflecting

your guilty verdict and then answer the following questions:

Was the defendant acting upon provoked passion? (Yes or No).

The defendant was acting upon provoked passion if:

1. the act causing the death was performed upon a sudden heat of passion, and
2. the sudden heat of passion was caused by a serious and highly provoking act of the intended victim, and
3. the intended victims act of provocation was sufficient to excite an irresistible passion in a reasonable person, and
4. between the provocation and the killing, there was an insufficient interval of time for the voice of reason and humanity to be heard.

The Colorado Law of Manslaughter Manslaughter (18-3-104)

1. A person commits the crime of manslaughter if:
   1. Such person recklessly causes the death of another person; or
   2. Such person intentionally causes or aids another person to commit suicide.
   3. (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. 1. 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.
   2. For purposes of this subsection (4):
      1. “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.
      2. “Medical caregiver” means a physician, registered nurse, nurse practitioner, or physician assistant licensed by this state.
      3. “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.
   3. Paragraph (a) of this subsection (4) shall not be interpreted to permit a medical caregiver to assist in the suicide of the patient.

Colorado Manslaughter (Reckless) The Elements of the Charge

The elements of the crime of manslaughter are:

1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. recklessly,
4. caused the death of another person.

The Colorado Law of Criminally Negligent Homicide Criminally Negligent Homicide (18-3-105)

Any person who causes the death of another person by conduct amounting to criminal negligence commits criminally negligent homicide which is a class 5 felony

Criminally Negligent Homicide The Elements of the Charge

The elements of the crime of criminally negligent homicide are:

1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. caused the death of another person,
4. by criminal negligence,

The Colorado Law of Vehicular Homicide (18-3-106)

1. 1. If a person operates or drives a motor vehicle in a reckless manner, and such conduct is the proximate cause of the death of another, such person commits vehicular homicide.
   2. 1. If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and such conduct is the proximate cause of the death of another, such person commits vehicular homicide. This is a strict liability crime.
      2. For the purposes of this subsection (1), one or more drugs shall mean all substances defined as a drug in section 12-22-303 (13), C.R.S., and all controlled substances defined in section 12-22-303 (7), C.R.S., and glue-sniffing, aerosol inhalation, or the inhalation of any other toxic vapor or vapors as defined in section 18-18-412.
      3. The fact that any person charged with a violation of this subsection (1) is or has been entitled to use one or more drugs under the laws of this state shall not constitute a defense against any charge of violating this subsection (1).
      4. “Driving under the influence” means driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs affect such person to a degree that such person is substantially incapable, either mentally or physically, or both mentally and physically, of exercising clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.
   3. Vehicular homicide, in violation of paragraph (a) of this subsection (1), is a class 4 felony. Vehicular homicide, in violation of paragraph (b) of this subsection (1), is a class 3 felony.
2. In any prosecution for a violation of subsection (1) of this section, the amount of alcohol in the defendant’s blood or breath at the time of the commission of the alleged offense, or within a reasonable time thereafter, as shown by analysis of the defendant’s blood or breath, shall give rise to the following presumptions:
   1. If there was at such time 0.05 or less grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.05 or less grams of alcohol per two hundred ten liters of breath, it shall be presumed that the defendant was not under the influence of alcohol.
   2. If there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per one hundred milliliters of blood, or if there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per two hundred ten liters of breath, such fact may be considered with other competent evidence in determining whether or not the defendant was under the influence of alcohol.
   3. If there was at such time 0.08 or more grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.08 or more grams of alcohol per two hundred ten liters of breath, it shall be presumed that the defendant was under the influence of alcohol.
3. The limitations of subsection (2) of this section shall not be construed as limiting the introduction, reception, or consideration of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol.
4. 1. If a law enforcement officer has probable cause to believe that any person was driving a motor vehicle in violation of paragraph (b) of subsection (1) of this section, such person, upon the request of the law enforcement officer, shall take, and complete, and cooperate in the completing of any test or tests of such person’s blood, breath, saliva, or urine for the purpose of determining the alcoholic or drug content within his or her system. The type of test or tests shall be determined by the law enforcement officer requiring the test or tests. If such person refuses to take, or to complete, or to cooperate in the completing of any such test or tests, such test or tests may be performed at the direction of a law enforcement officer having such probable cause, without such person’s authorization or consent. If any person refuses to take or complete, or cooperate in the taking or completing of any test or tests required by this paragraph (a), such person shall be subject to license revocation pursuant to the provisions of section 42-2-126 (2), C.R.S. When such test or tests show that the amount of alcohol in a person’s blood was in violation of the limits provided for in section 42-2-126 (2) (a) (I), (2) (a) (I.5), (2) (a) (III), or (2)
      (a) (IV), C.R.S., such person shall be subject to license revocation pursuant to the provisions of section 42-2-126, C.R.S.
   2. Any person who is required to submit to testing shall cooperate with the person authorized to obtain specimens of his blood, breath, saliva, or urine, including the signing of any release or consent forms required by any person, hospital, clinic, or association authorized to obtain such specimens. If such person does not cooperate with the person, hospital, clinic, or association authorized to obtain such specimens, including the signing of any release or consent forms, such noncooperation shall be considered a refusal to submit to testing.
   3. The tests shall be administered at the direction of a law enforcement officer having probable cause to believe that the person committed a violation of subparagraph (I) of paragraph (b) of subsection (1) of this section and in accordance with rules and regulations prescribed by the state board of health concerning the health of the person being tested and the accuracy of such testing. Strict compliance with such rules and regulations shall not be a prerequisite to the admissibility of test results at trial unless the court finds that the extent of noncompliance with a board of health rule has so impaired the validity and reliability of the testing method and the test results as to render the evidence inadmissible. In all other circumstances, failure to strictly comply with such rules and regulations shall only be considered in the weight to be given to the test results and not to the admissibility of such test results. It shall not be a prerequisite to the admissibility of test results at trial that the prosecution present testimony concerning the composition of any kit used to obtain blood, urine, saliva, or breath specimens. A sufficient evidentiary foundation concerning the compliance of such kits with the rules and regulations of the department of public health and environment shall be established by the introduction of a copy of the manufacturer’s or supplier’s certificate of compliance with such rules and regulations if such certificate specifies the contents, sterility, chemical makeup, and amounts of chemicals contained in such kit.
   4. No person except a physician, a registered nurse, a paramedic as certified in part 2 of article 3.5 of title 25, C.R.S., an emergency medical technician as defined in part 1 of article 3.5 of title 25, C.R.S., or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse shall be entitled to withdraw blood for the purpose of determining the alcoholic or drug content therein. In any trial for a violation of paragraph (b) of subsection (1) of this section, testimony of a law enforcement officer that he witnessed the taking of a blood specimen by a person who he reasonably believed was authorized to withdraw blood specimens shall be sufficient evidence that such person was so authorized, and testimony from the person who obtained the blood specimens concerning such person’s authorization to obtain blood specimens shall not be a prerequisite to the admissibility of test results concerning the blood specimens obtained. No civil liability shall attach to any person authorized to obtain blood, breath, saliva, or urine specimens or to any hospital, clinic, or association in or for which such specimens are obtained pursuant to this subsection (4) as a result of the act of obtaining such specimens from any person if such specimens were obtained according to the rules and regulations prescribed by the state board of health; except that such provision shall not relieve any such person from liability for negligence in the obtaining of any specimen sample.
   5. Any person who is dead or unconscious shall be tested to determine the alcohol or drug content of his blood or any drug content of his system as provided in this subsection (4). If a test cannot be administered to a person who is unconscious, hospitalized, or undergoing medical treatment because the test would endanger the person’s life or health, the law enforcement agency shall be allowed to test any blood, urine, or saliva which was obtained and not utilized by a health care provider and shall have access to that portion of the analysis and results of any tests administered by such provider which shows the alcohol or drug content of the person’s blood or any drug content within his system. Such test results shall not be considered privileged communications and the provisions of section 13-90-107, C.R.S., relating to the physician-patient privilege shall not apply. Any person who is dead, in addition to the tests prescribed, shall also have his blood checked for carbon monoxide content and for the presence of drugs, as prescribed by the department of public health and environment. Such information obtained shall be made a part of the accident report.
   6. If a person refuses to take, or to complete, or to cooperate in the completing of any test or tests as provided in this subsection (4) and such person subsequently stands trial for a violation of subsection (1) (b) of this section, the refusal to take or to complete, or to cooperate with the completing of any test or tests shall be admissible into evidence at the trial, and a person may not claim the privilege against self-incrimination with regard to the admission of his refusal to take, or to complete, or to cooperate with the completing of any test or tests.
   7. Notwithstanding any provision in section 42-4-1301.1, C.R.S., concerning requirements which relate to the manner in which tests are administered, the test or tests taken pursuant to the provisions of this section may be used for the purposes of driver’s license revocation proceedings under section 42-2-126, C.R.S., and for the purposes of prosecutions for violations of section 42-4-1301 (1) or (2), C.R.S.
5. In all actions, suits, and judicial proceedings in any court of this state concerning alcohol-related or drug-related traffic offenses, the court shall take judicial notice of methods of testing a person’s alcohol or drug level and of the design and operation of devices, as certified by the department of public health and environment, for testing a person’s blood, breath, saliva, or urine to determine his alcohol or drug level. This subsection (5) shall not prevent the necessity of establishing during a trial that the testing devices used were working properly and that such testing devices were properly operated. Nothing in this subsection (5) shall preclude a defendant from offering evidence concerning the accuracy of testing devices.

Colorado Vehicular Homicide the Elements of the Charge

The elements of the crime of vehicular homicide are:

1. that the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. operated or drove a motor vehicle
4. [in a reckless manner,] [while under the influence of [alcohol] [one or more drugs] [a combination of both alcohol and one or more drugs],]
5. and such conduct was the proximate cause
6. of the death of another.