*1 right his to a trial. was complaint Smith subse- Rantz’s had because he failed to quently charges postconviction convicted of both and sen- obtain relief. The district years Department to in the tenced of Cor- stayed court declined to dismiss the suit and rections. proceedings until a final determination of 35(c) Rantz’s Crim. P. motion was made. On sought appeal direct of his Smith convic- order, review the district court’s we held tion, upheld by ap- which was the court of obtaining postconviction relief was not a v. peals opinion. an unpublished requirement maintaining malpractice to Smith, 00CA1267, No. WL 1766621 suit. 2002). (Colo.App. February Subsequently, malpractice against Smith filed a action Tru- Rantz to the Applying holding in pres- man, alleging negligence, fiduciary breach ent find Smith’s failure to seek duty primary and several other claims. The postconviction or obtain relief not a bar to basis of his claims was that Truman had bringing a malpractice against suit Truman. negligently present exculpatory failed to evi- Accordingly, we make the rule to show cause dence on his behalf and that this was failure absolute and order the court district to lift part by the fact motivated that Firestone stay proceed. and allow the civil suit paying was for Truman’s want- services and liability. ed to avoid civil participate. Justice BENDER does 35(c) Smith had not filed a Crim. P. motion or sought other of postconviction form prior filing malpractice
relief suit and
still present has not at the time. Truman complaint
moved to dismiss Smith’s due to postconvietion
Smith’s failure seek relief. agreed
The district court with Truman that
obtaining postconviction prerequi- relief is a maintaining legal malpractice site to suit GRISSOM, Petitioner, Dante against the criminal crim- defendant’s former attorney, inal defense but did not dismiss the Noting suit. still ample that Smith had time PEOPLE of State 35(e) pursue motion, P. Colorado, Respondent. Crim. court stay proceedings pending issued a civil No. 03SC792. postconviction proceedings. outcome of Supreme Colorado, Court of petitioned Smith court pursu- for relief En Banc. ant C.A.R. and we issued a rule to show why cause Smith should not be allowed 27, 2005. June proceed with his Following suit. our rul- Rehearing Aug. Rantz, Denied 2005.* ing in we now make the rule absolute. Analysis III. Rantz, a former client sued his criminal attorneys malpractice
defense in their
representation at his sexual assault trial. suit, filing malpractice
Prior to his Rantz had 35(c)
filed claiming P. Crim. motion ineffec-
tive assistance of on counsel the same
grounds alleged in malpractice claim. denied,
His motion pending but is
appeal. attorneys moved dismiss
* ticipate. Justice KOURLIS and Justice BENDER would Petition; grant par- Justice COATSdoes not *2 History
II. Facts and Procedural Grissom, Dante eluding was convicted vehicular and first- degree murder after deliberation under a *3 complicity. Grissom was sentenced prison. life in In present Grissom was at a dice game between Darrick Love and Shante eventually Cannon. Love won game, but angry pay became when Cannon refused to agreed him. Grissom later to help Love find alleged Cannon collect the debt and drove days Love to several locations the next few in search of Cannon.
Approximately one week after dice game, fatally was Cannon shot near the mo- staying. tel where he had been Witnesses from the motel testified that heard fired, being shots and saw white car leave police responded the scene. The to the scene, crime saw a car pursued white and it. chase, After a car the white car crashed into hydrant a fire and two men from fled vehicle. foot,
After a on police search found and arrested and In Love Grissom. the course of search, police their handguns found two area, jewelry all stained with Denver, Grimaldi, James for Petitioner. testing clothing blood. After Love and Suthers, General, wearing Attorney gun Grissom had been John W. shot resi- John due, III, General, police determined that Love Attorney J. Fuerst Assistant had shooter, Denver, therefore, Respondent. been the likely principal. People try decided complicitor. Grissom as a MULLARKEY, Chief Justice. trial, At argued defense counsel that Gris- I. Introduction did som not know what Love intended and granted certiorari in We this case to deter- merely help that Grissom intended to Love appeals, mine whether the court of in an debt, gambling ostensibly recover his unpublished opinion, ruling an erred means short murder. Defense counsel alleged complicitor is entitled to an instruc- also very claimed that Grissom was close to on a
tion
offense
if
lesser-included
the victim
helped
and would not have
Love
principal himself would be entitled to
such
kill Cannon. Grissom asked the trial court
instruction.
jury
manslaughter
to instruct
on
reckless
degree
lesser included
first
We hold that
can
be convicted
murder after deliberation.
manslaughter
complicitor
of reckless
as a
if
there is some evidence
the principal
give
The trial court
refused
reckless
manslaughter
entered into common enter-
explained
It
instruction.
prise
light
to commit a
“logically
crime. Viewed in the
it
doesn’t make
sense at all” to
defendant,
defendant,
most favorable
complicitor,
evidence
think the
aas
knew
supported giving
in-
intended
commit an
struction.
killing.
unintentional
The trial court then
encourages
degree
planning
the other
complicity, first
instructed
committing the
deliberation,
offense.
first-degree felony
murder after
murder,
eluding.
robbery,
vehicular
18-1-603,
C.R.S.2004.
(Colo.
Wheeler,
ing
section
Laurie
was involved
an alterca
acquitted
robbery, section 18-4-
He was
place
neighbor,
tion that took
between her
301(1),
felony
first-degree
Bothun,
Timothy
and her common law hus
18-3-102(l)(b),
murder,
section
C.R.S. band,
Anderson,
Mitchell
resulted
(2004).1
*4
charged
a
Bothun’s death. Anderson was
as
principal
charged
a
and Wheeler
under
affirmed the trial
appeals
The court
liability
theory
complicity
with second de
manslaugh-
rejection of the reckless
court’s
gree murder as well as the
included
lesser
instruction,
grounds.
but on different
ter
criminally neg
offenses of
Grissom,
00CA1407, slip
People
op.
v.
No.
jury
ligent homicide. The
convicted Wheeler
10-12,
(Colo.App.
WL 22113721
2003
negligent
criminally
homicide.
2003)(not
publication).
for official
selected
appeals
that for a
concluding
The court of
reasoned
In
that Wheeler’s convic
stand,
crime,
rejected
explicitly
on a lesser included
tion should
we
court
instruct
argument
logically impos
that it is
Wheeler’s
principal
there must be evidence that
and abet
unintentional
sible
aid
another’s
here,
crime,
reckless
committed the lesser
complicity
act. We held that our
statute
sup-
manslaughter. Finding no evidence to
by
“only requires knowledge
complicitor
theory
recklessly, the
port a
that Love acted
in,
principal
engaging
that the
or about to
prin-
that
appeals
court of
found
because the
in,
Id.,
engage
criminal conduct.”
at 104.
cipal
received a reckless man-
could
Consequently,
explained
“the
we
instruction,
slaughter
complicitor
could
guilty
criminally negli
find
could Wheeler
not either.
a
if it
gent
complicity
homicide on
Anderson,
princi
believed that she knew
Analysis
III.
pal,
engage
in conduct that was
was about
gross
a
deviation from the standard
care
Complicity
A.
Acts
Unintentional
person
would exercise.”
reasonable
separate
dis
Complicity
is not
here,
Similarly,
have found
Id.
could
Rather, it is “a the
tinct crime or offense.
knew
Love was about to
that Grissom
by
ory
a defendant becomes account
which
conduct, i.e.,
engage in
conduct that
reckless
by
able
a criminal offense committed
unjustifiable
“disregard[ed] a substantial and
People
mote or facilitate the commission of such risk of death offense, aids, abets, advises, or a mental state should suffice for he or she and of statutory which underwent minor revision which 1. All of these sections are same convenience, acquitted. statutory For under which Grissom was Grissom was the charged sections 18-3-102(l)(b) statutory except refer to the current codification. in 1999 section 1284 underlying by charged crime defined each driver should be with knowl culpable edge high mental states of recklessness that such conduct has likelihood death.”) negligence.
or
resulting
injury
serious
Evans,
634,
Ill.App.3d
80
v.
Ill.
(Colo.1997),
247,
P.2d
overruled on
100,
(1984)(where
105,
Dec.
In Requirement State v. the Missouri Su B. The Intent preme rejected argument Court the that We observed Wheeler that the “ can design ‘there be no common to commit Assembly complicity liability General defined homicide;’ a negligent resulting act and to extend to those acts done with the “intent that a person guilty ‘to render of negligent promote conduct, or facilitate” criminal homicide, negligent the act which caused the complicity but that the context as articu death must have personal been the act of the 18-1-603, lated in section “intent” retains its ” party charged and not the act another’ meaning” synonymous “common not and is (Mo.1960). 339 S.W.2d 771-74 The Fen statutory with the definition of “intent” which newald court accomplice then found that lia applies to other crimes. 772 P.2d bility apply could to the at 104. party parties other where both were reck lessly engaged in drag Bogdanov, explained race. See In re also we that com Clark, (Ohio “(1) App. July plicity liability WL 1615942 *8 included situations where 2004) (finding that both in drag complicitor drivers the culpable has the mental state equally race required held underlying liable because for the crime committed “when operate by principal; complicitor two drivers both their motor the and the as (in by vehicles traveling speeds encourages at excessive or sists the commission the m.p.h.), instant approximately case the principal cHme committed ‘with the ” subject sale will be used 941 P.2d at or facilitate.’ promote intent to crime_A added). utility However, pro- commission of a because we (emphasis service, telephone telegraph know- to extend to vides complicity have found ing bookmaking. employ- An acts it is used for committed and puts through shipment held that “intent” the course principal, we have ee and context, meaning though that he knows employment common of his retains its him require shipment illegal. do not the crime to commit self intend commentary § Model Penal 2.06 Code crimes in terms defined commits (1985). 315-16 negligence. In those recklessness cases, must to aid intend Code’s formula- Under Model Penal engage principal to in conduct or assist the tion, accomplice liability imposed not even “grossly from the standard above, deviates when, examples quoted as in poses a substantial reasonable care accomplice party charged to be as an has Bog unjustifiable risk of death another.” activity that criminal will knowledge actual danov, legislature has at 251. 941 P.2d General As- Although occur. the Colorado changed complicity substantively many sembly incorporated has of the Model Bogdanov were statute since Wheeler code, provisions into our criminal Penal Code statutory the usual rules of decided. Under legislature adopted complicity has stat- legislature’s inaction is construction the substantially from ute that is different interpre ratified the court’s deemed to have Model Penal formulation. See ULA Code See, e.g., statute. tation Penal 2.06 We assume Model Code (Colo. People, Mason v. analysis legisla- purposes our 1997). deliberately rejected the ture acted ra- when tionale of the Model Penal Code defin- argued ac- Some commentators complicity. ing *6 only complice liability should extend to those crimes com- specific intentional that the Although of the Model the drafters Penal facilitate that the plicitor intended to with the idea that Code were uncomfortable this Under alternative committed. for acts can be held liable the interpretation, one cannot be higher mental principal committed with requir- of a principal’s the commission crime complicitor, than not all state that of neg- ing the of recklessness or mental states the discomfort. Profes- commentators share ligence. commentator lamented One Kadish sor noted liability accomplice this “extension of court’s secondary widely accepted It is Audrey for crimes is too broad.” unintended great as as party’s liability need not be Liability Rogers, Accomplice Uninten- for may have acted principal, that of the who Remaining within the Con- tional Crimes: him makes more with a rea that mens Intent, Loy.L.A.L.Rev. straints of secondary party. The culpable than the (1998). n. 135 latter, may, in the heat of example, for does Penal Code not extend Model primary party to provocation, induce the accomplice liability principal’s uninten- kill, may act party with primary while the imposing on a concern that tional acts based not But this does con- cool deliberation. accomplice liability in this context is secondary conception of tradict accomplice appropriate when the shares the The accom- party’s liability as derivative. principal’s state and facilitates the mental that of the plice’s liability from derives principal’s conduct. To illustrate this con- may it derive principal no less because cern, examples Penal Code offers the Model liability. his from some and not all of it line of difficult situations where draws the liability. example, For accomplice to limit Kadish, Complicity Cause and H. Sanford Interpretation A knowledge Study Blame: in the A with lessor rents of Doctrine, 323, 339^10 premises to establish a Cal.L.Rev. will be used bordel- accept premise. also knowledge lo. that the We A vendor sells view, In enterprise our the common trial, re- murder. At his second Love testified quirement appropriately limits eomplicitor man, Sudduth, that a third James testi- who liability. theory accomplice li- Colorado’s witness, fied' in prosecution Love’s case as a ability would extend for inten- shot and killed Cannon. Neither nor Love who, persons example, tional acts to Sudduth testified in case. Grissom’s people property lease who use the venue This background factual allows us con- long as as brothel the lessors did not problem sider the with trials of operate intend for the lessees a brothel eomplicitor and the they and how much over- Bogdanov, property. on the leased See lap. requirement par- is no There that both negli- P.2d at In 252. cases reckless and together, they ties be tried are often crimes, gent would not hold a Colorado separately. presented tried The evidence eomplicitor principal’s un- liable for act separate may trials be different as it was they engaged in a common less were enter- separate trials of Grissom and Love. prise eomplicitor and the knew the Separate juries hearing different evidence enlisting complicitor’s help in order may reach inconsistent or anomalous verdicts engage in criminal conduct. See Grissom, did these cases. at 104. eomplicitor, premeditated was convicted of theory adopt We' decline to murder, degree first alleged while princi- complicity liability discussed the Model Love, pal, guilty has been found of second Instead, alleged Penal Code. we find that an degree result, Grissom, murder. aAs eomplicitor to a entitled instruction on eomplicitor, was prison sentenced to life in any is consistent with the defen possibility parole. without the By con- supported dant’s defense and trast, Love, principal, was convicted Thus, some evidence the record. reaf felony, exposed pre- class him to a that, Colorado, firm Wheeler and state sumptive range sentencing eight to twelve accomplice liability degree tracks that of years imprisonment. knowledge complicitor’s which the actions of decided,
aiding
abetting
Grissom’s
the trial court
evince and
where
eomplicitor
evidence,
reading
based on its
engaged
a common
enter
intentional,
prise
therefore,
Love’s
principal,
with the
he
act was
or she
eomplicitor
held
as a
liable
reckless Grissom could not receive
instructions
crimes.
requiring
crimes
negli-
a reckless or
gent
testimony
intent. There
nowas
in Gris-
*7
In this
we
have
unusual
eyewitnesses
som’s ease from
to the crime.
having
partial
benefit of
a
record of the
The trial court concluded that Love shot
principal’s
in
trial
the record now before us.
intentionally
Cannon
because of the number
appealed,
When Grissom first
the court of
of shots that hit
angle
Cannon and the
of
appeals remanded
case to the trial
his
court
entry.
court
The
also relied on the fact that
Grissom’s,motion
hearing
a
on
for a new
gunshot
a
had been fired at Cannon and
newly
trial
based
discovered evidence.
missed him earlier in the week when Grissom
remand,
On
the trial court admitted the tran
to
drove Love
find Cannon.
script
testimony
of
in
Love’s
his own trial
into evidence
this case.
Had Grissom and Love
togeth-
been tried
er, perhaps the
of
initially
degree
Love
role
Sudduth and how
tried
first
was
deliberation,
murder, Cannon was shot would
felony
murder after
have been deter-
above, however,
is,
mined.
robbery,
only
but
As noted
was
convicted of the
there
be,
theft,
lesser
and under the
non-included offense of
was
constitution there can
no
acquitted
requirement
felony
robbery.
eomplicitor
murder and
that the
and accom-
plice
together.
necessity,
could not reach
a verdict on the
tried
Of
the com-
charge
degree
of first
plicitor’s
murder after
trial is
something
delibera-
conducted
a
tion.
degree
key
Love was
missing.
retried
first
mur-
vacuum with
To
facts
hold that
der after
eomplicitor
deliberation and convicted of the
can never be entitled
to
lesser
included
degree
offense of second
negligent
instruction on a
or reckless crime
justi-
to
the debt from
At
that can
order
collect
Cannon.
a harsh result
works
trial,
O’Dell,
rigor.
intellectual
Grissom’s
Richard
a friend
grounds of abstract
fied on
Cannon,
analysis is
re-
Love
testified
Grissom and
Because
theoretical
or our
apartment, looking
our
statute
case-
drove to
for Cannon.
quired
that,
law,
adopt
presence,
to
it.
Grissom’s
we decline
O’Dell testified
going
get
Love told him “I am
to
him [Can-
Application
IV.
money back,”
get my
if I
at which
non]
don’t
point,
pistol.
his shirt to
Love lifted
reveal
to an instruction on
A defendant
entitled
Another
testified that
was
witness
Grissom
case
offense “as
lesser
present
allegedly
Love
shot at Cannon
when
n
long
... as
there is
rational
instruction
evidence,
earlier
week. From this
support
in the
to
verdict
evidence
basis
could have concluded that Grissom
greater
him of
offense ... and
acquitting
”
enterprise
in a
engaged
Love were
common
Peo-
convicting him of the lesser offense.’
least assault Cannon
the course
Garcia,
(Colo.1997);
P.2d
ple v.
debt, thereby
collecting
exposing
Gris-
(2004).
also,
18-1-408(6),
see
manslaughter for
som to
for reckless
Indeed,
considering
“when
whether
friendship
Cannon’s
Grissom’s close
death.
proffered in
to his
a defendant
entitled
is some evidence that the state
Cannon
struction, the
court must
trial
consider
of mind
and Love shared
which Grissom
light
in the
most favorable to the
evidence
when
into the
enter-
entered
common
People,
v.
defendant.” Mata-Medina
alleged
prise was
collect the
some
debt
(Colo.2003).
973, 979
Because we hold
premeditated
means short of
murder.
sufficient meet the
that evidence existed
long
recognized
We have
18-1-408(6),
find
requirements of
section
is a
included
lesser
consider
the trial court did not
the evi
degree
murder
first
after delibera
light
favorable to the
dence in the
most
People,
tion.
8 Colo.
P.
Packer
defendant.
slight
Only
amount of evidence
acted
Grissom
intentional-
While
need exist for a defendant
be entitled
around,
regard
driving Love
he
ly with
lesser
instructions in a homicide
included
knowledge
he
may not have done so with
that in
case. We have noted
numerous cases
effectuating
degree
a first
murder.
was
required
giving
a crimi-
courts have
argued
defense
that Grissom
Cannon
nally
homicide
when
instruction
friends,
had
close
did
been
clearly
guilty party
identified
the facts
had a
not show that Grissom himself
motive
perpetrator,
as the
cause of death was
kill
help Love
Grissom was nev-
Cannon.
known,
sug-
defendant’s actions
and the
being at
scene
positively
er
identified as
gested
degree
culpability
than
higher
when a shot
fired at
earlier
week
argues
here.
above,
Moreover,
no
as discussed
Cannon.
Mata-Medina,
The evidence he to Can- driving Love intent that because was close spent the week around Grissom non, aid he not intend to insignificant. did Cannon’s crime was either or remote “is recognized murder. If there evidence however The trial court this ease improbable, slight, or incongruous unreasonable result when it ruled Gris- grade som, complieitor, tends to reduce the homicide as a could not commit the is manslaughter, the defendant entitled to an manslaughter. crime to reckless Mata-Medina, instruction thereon.” 71 P.3d ruling Because I affirm the would of the trial may though at 978. Even this evidence court, respectfully I dissent. slight, been Grissom was entitled to reck- Complicity a legal theory is which holds manslaughter
less
instruction because the ev-
criminally
defendant
liable for the same
presented
idence
was sufficient under the
punishment
crime and
principal
be-
“any evidence” standard.
complieitor
aided,
intentionally
cause the
abetted, or
advised the
who com-
V. Conclusion
an
People,
mitted
offense. Palmer v.
we held that the intent neces-
(Colo.1998).
The doctrine
sary
complieitor
“only
be convicted
punish
played
serves
individuals who have
requires
by
knowledge
complieitor
a distinct
role
the commission of an of-
in,
engaging
or about
regard
fense “without
to whether
were
engage in, criminal conduct.” 772 P.2d at
actually
or
constructively present
were
or
Today
holding
104.
we limit that
to common at
time the
crimes were
committed.”
enterprise
circumstances,
cases. Under such
LaFave,
Wayne
al.,
R.
et
Substantive Crimi-
can
be held liable for reckless
13.2,
(2nd
nal Law
at 337
ed.
&
manslaughter
complieitor.
pres-
as a
In the
Supp.2005).
ent
support
there was evidence to
Assembly
The General
has
com-
defined a
requested
reckless
instruction
plieitor as one who acts with the intent to
result,
by the
As a
defense.
we find that
promote or
by aiding,
facilitate an offense
Grissom
was entitled
an instruction on
abetting,
encouraging
or
another to commit
manslaughter in
this ease and we
18-1-603,
the criminal offense. Section
appeals
reverse
court
and remand the
(2004),
states:
case
directions to return it
dis-
person
legally
A
accountable as
trict court for a new trial.
for the
constituting
behavior of another
if,
criminal
pro-
offense with the intent to
dissents,
Justice BENDER
and Justice
mote or facilitate the commission
joins in
KOURLIS
the dissent.
offense,
aids, abets, advises,
he or she
or
participate.
Justice COATS does not
encourages
planning
the other
committing the offense.
dissenting.
Justice BENDER
prove
To
complicit
that a
defendant is
majority
position
reaffirms the
crime,
prosecution
commission of a
complicitors
criminally
can
held
be
for
liable
prove
must
dual
mental state before the
principal.
the unintentional acts of the
I
complieitor
legally
held
accountable
would
precedent,
overrule our
which the ma-
Bogdanov
another.
follows,
jority
because it is based upon the
(Colo.1997).
People, 941 P.2d
illogical proposition that one can
held
(1)
complieitor
culpable
must have:
men-
legally
intentionally
assisting
accountable
tal
required
state
underlying
for the
crime
another
unintentionally,
who acted
here
committed
principal;
in-
recklessly,
in the commission of a crime.
promote
tent to
or facilitate the crime com-
Imposing liability
unintentional crime
*9
principal.
mitted
the
Id.
(citing
at 250-51
by
principal
committed
the
the
eliminates
re-
2 Wayne
Scott, Jr.,
R. LaFave & Austin W.
quirement that a complieitor must intention-
(1986)).
§
Criminal Law 6.7
ally act with the same
as
mental state
the
principal,
very
and creates the
real
jus-
risk that
Criminal culpability
system
in our
of
person
a
will be convicted of a
very
serious crime
tice arises
of
theory
out
the
basic
that
participation
when the level
an
responsible
that
individual is
for his own ac-
promote
Thus,
liability
from that Grissom had the intent to
or
accomplice
stems
tions.2
concept
personal
a
took a
Love when he committed
the
that
defendant
assist
reckless
participation of an manslaughter.
and active role
may
he
simply
and not
because
have
culpable
state of
man-
mental
reckless
something
resulted
another’s
done
that
the
slaughter requires
principal,
the
one who
“It
act.
not sufficient that the
unlawful
victim,
the
of the
to act with
caused
death
intentionally engaged in acts
defendant
disregard
a
un-
conscious
substantial and
ultimately
encouraged
or
the
assisted
justifiable
§ 18-
that a death will occur.
risk
Rather,
complicitor must in-
principal.
the
1-501(8),
(2004);
Thus,
§ 18-3-104.
C.R.S.
have
of as-
that his conduct
the effect
tend
complicitor,
to
would need
be a
Grissom
to
sisting
encouraging
principal
or
the
com-
disregard
a
act with conscious
substantial
by
committed
mitting
planning
or
the crime
unjustifiable
risk that death will occur
Bogdanov,
the
other, Assembly provided the General has whereby
mechanism such individuals can be
tried and their acts negli- convicted for
gence or See recklessness. 18-3-104 § 18-3-105,
(Manslaughter); J., Rogers, Liability (Carroll, Accomplice Dist.Ct.App.1966) (giving 4. dissenting) Unintentional Crimes, Loy. (provid- example L.A. drag L.Rev. 1352-53 of onlookers at a race re- ing examples accomplice may of where sults liable death of another could be act, intending engage specific complicitors simply tried as might because the race speeding, such as that results in unintentional not have if occurred had not encour- death); State, (Fla. aged racing). Jacobs v. 184 So.2d