People v. Duran
272 P.3d 1084
Colo. Ct. App.2011Background
- Defendant Dominic Duran appeals jury verdicts finding him guilty of attempted first-degree extreme indifference murder and reckless manslaughter; he is an accessory to a crime as charged.
- Party-host incident: Montoya brandished a gun at a party; bullets fired toward the house from Montoya’s gun and from the car; victim died of a headshot.
- Defendant was with the group before confrontation; he was later in or near the car and allegedly told Montoya, “Let's go,” after first volley.
- Forensic evidence shows the fatal bullet entered through a bedroom window at a height corresponding to the victim standing or starting to stand; the window screen had a single hole.
- Evidence about who fired the first group of shots is contested; the second group was fired from the car, possibly by defendant, but trajectory evidence limits causation in the second group.
- Trial court instructed on first-degree extreme indifference murder and attempted extreme indifference murder, with reckless and attempted reckless manslaughter as lesser/nonincluded offenses; self-defense instructions were given and objections were raised but not to standard during trial.
- Convictions: attempted first-degree extreme indifference murder, reckless manslaughter, and accessory to a crime; merits of reckless manslaughter and attempted extreme indifference murder are reviewed on appeal; judgment vacated/reversed/remanded accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for reckless manslaughter | Duran argues insufficient evidence tying him to the second group of gunshots. | Duran contends he did not aid or abet the first group or second group to cause death. | Reckless manslaughter reversed; insufficient evidence. |
| Sufficiency of evidence for attempted extreme indifference murder | People argue defendant’s second-group shots show universal malice and a substantial step. | Believes evidence does not prove substantial step toward murder. | Attempted extreme indifference murder affirmed; sufficient evidence. |
| Instruction on attempted extreme indifference murder as lesser included offense | Instructing on attempt as lesser included offense is proper. | Plain error to instruct improperly; merger considerations. | Plain error; reverse on Attempted extreme indifference murder and remand for new trial. |
| Instruction on completed and attempted reckless manslaughter as nonincluded offenses | Jury should consider these as nonincluded offenses. | Error to instruct; proper as lesser included offenses after vacatur. | Error to instruct as nonincluded; vacate/reverse remand kap; no retrial for completed reckless manslaughter. |
| Self-defense instruction issues (provocation/initial aggressor) | Self-defense language and burden reflect statutory law; needs no change. | Language risks misdirecting burden of proof; Provocation/Initial aggressor concepts may be warranted on remand. | Instruction refined for remand; provocation/initial aggressor may be included if evidence warrants. |
Key Cases Cited
- Clark v. People, 232 P.3d 1287 (Colo.2010) (standard of review for sufficiency of evidence; de novo with reasonable inferences)
- People v. Lehnert, 163 P.3d 1111 (Colo.2007) (substantial step/likelihood of completion guidance; intent focus)
- Bogdanov v. People, 941 P.2d 247 (Colo.) (complicity; knowledge and intent to promote crime)
- U.S. v. Murray, 988 F.2d 518 (5th Cir.1993) (mere presence insufficient for complicity)
- People v. Lara, 224 P.3d 388 (Colo.App.2009) (self-defense instruction; treatment as element-negating defense)
- Medina, 51 P.3d 1006 (Colo.App.2001) (reckless manslaughter as lesser included offense of extreme indifference murder)
- Rodriguez, 888 P.2d 278 (Colo.App.1994) (same elements test for lesser included offenses)
- MacBlane, 952 P.2d 824 (Colo.App.1997) (instruction on lesser nonincluded offenses when not lesser included; practice guidance)
- Harlan, 8 P.3d 448 (Colo.2000) (complete vs attempted murder; relevance to lesser included offenses)
- Apodaca v. People, 712 P.2d 467 (Colo.1985) (rational basis for lesser included instruction when a completed crime exists)