People v. Fisher

judgment of the district court is accordingly and the case is re- reversed to that court with directions to

manded for

return the case to the charges criminal

reinstatement of the proceedings. further Colorado,

The PEOPLE of the State of

Plaintiff-Appellant, FISHER, Defendant-Appellee.

Bettie

No. 86SA495. Colorado,

Supreme Court of

En Banc.

July position. investigat- in cocked The lodged found a second detective bullet ceiling in joist

in the same room where pathologist at body was found. Den- Hospital autopsy conducted an ver General body and determined that the Vizina’s gunshot cause of his death was a wound to upper body ma- which severed several organs. jor Penington, Detective who testified at the hearing, ni- requested that a pattern performed trate test be to deter- the muzzle of the mine distance from weap- weapon the time the to victim at test on fired. The result of the the muzzle of the revolver showed that further than three feet from the vic- “was there was tim when it was fired” because pattern nitric on either the or his no victim Jr., Atty., Early, Penington Dist. David re- clothing. S. Detective also Norman Denver, Atty., for Deputy gunshot per- Dist. Dansky, quested that a residue test be presence plaintiff-appellant. test detects the formed. This barium, lead, expend- antimony and content Vela, De- F. Colorado State Public David discharge. weapon at the time of ed from a Youtz, fender, Deputy Fullmer State Janet performed Fisher This test was on both Defender, Denver, defendant-ap- Public body, body. As to Vizina’s and on Vizina’s pellee. Although negative. the results were Fisher, to inconclusive as results were VOLLACK, Justice. gunshot residue was testified that detective appeal prosecution filed this from The of her left hand. found on the back to court’s denial of its “Motion the district at the scene interviewed officer Another Directly in District Information File neighbor neighbor. The the defendant’s 7(c)(2). pursuant to Crim.P. We Court” go Fisher that he had seen told the officer directions to the and remand with reverse parked outside vehicle to the recreational grant prosecution’s district court to he ten minutes before her house about original charges in motion to reinstate equip- emergency sirens and saw heard the district court. arriving house. at Fisher’s ment I. he Penington testified that Detective from Fisher. Fisher took two statements incident that This case arises an rights p.m. at 7:16 advised of her September 1986. Evi- was place on took Penington gave her first statement estab- dence at the taped. This statement was not police that time. day question, in lished that on the said she had Penington testified that Fisher called to a Denver address officers were morning canning “had had spent the shooting. arrived at report of a Officers him Fisher told body couple of ... 3.2 beers.” family to find the single residence the house Vizina returned to room of the when the front Robert Vizina condition, lay down on the body an intoxicated he entered A bullet had Vizina’s house. him and she covered through bed the bedroom through right armpit, traveled up noon he quilt. got he hip. At the with a When lodged in the left body, she special brought out a bottle of bourbon scene, a .38 police recovered him.” While couple of drinks with inside and “had a four live rounds revolver with couch, “began the two shells; gun sat on the hammer of the spent Vizina two discussing help payments his failure of fingerprint results analysis per- money the house or with around the formed on the negative; revolver were no go house.” Vizina asked Fisher to into the fingerprints were recovered weap- from the parked recreational vehicle outside on. it was established that both a, get gun house to for him. Fisher re- bullets had been weapon fired from the gun gave turned to the house with a it found in the front room. Based on the statements, According to her Vizina. location of ceiling, ap- the bullet in the it handed the back to her and said Vizina peared that the shot had been fired from me, good. I'm no Shoot me and “Shoot the vicinity of the front door. you anymore” hurt and “Do it.” won’t cross-examination, On the ex- detective Penington testified that Fisher said “the plained gunshot that residue was found on gun thing next she knew was the —she hand, the back of Fisher’s left and that “[a] heard a loud I asked her where the boom. person gun would have to hold that in their noise, she heard this loud was after hand at firing the time of any it to have know, she she didn’t that she and said saw residue on the back of their hand.” How- laying on the floor.” Fisher real- [Vizina] ever, the results of the test were con- bleeding ized that Vizina was and called for sidered to be inconclusive. emergency services. paramedics Two who arrived at the scene charged by Fisher was informa before the detective described Fisher as degree murder, tion with second in viola “quite hysterical” “agitated.” Detec- 18-3-103(l)(a),1 tion of section and crime of Penington tive arrived a half hour to an violence, in violation of section 16-11-309.2 paramedics hour after the arrival of the preliminary hearing was held in Denver department. the fire Fisher’s second County Court in October 1986. At the evening statement in was taken later preliminary hearing, conclusion videotaped. videotape and was The was county probable court ruled that cause was entered into evidence at the charge not established on the of second hearing, judge during viewed degree murder and dismissed Count I. hearing. When asked to describe Fish- II, charge, Count the crime of violence was condition, er’s Penington Detective re- sponte a sua ruling, also dismissed. sponded: up; “Her condition shook county probable court held that cause had intoxicated; she seemed somewhat she was scared; support charge she been established was uncertain of what had manslaughter.3 happened The and what was reckless case was happening; in the Vizina, condition of Mr. she bound over to the Denver District Court on was uncertain charge.4 what the situation there.” that w[a]s any against elderly 1. "A commits the crime of murder in the crime committed an or murder, degree (a) handicapped person second if: He causes death of a or a crime of ... (1986). knowingly, but not after deliberation." 8A C.R.S. 18-3-103(l)(a), § 8B C.R.S. distinguishing 3. The factor between second de- gree manslaughter murder and reckless is in the provides: 2. The statute requisite mens rea. The mens rea Mandatory 16-11-309. sentences for vio- degree "knowingly”; is second for reck- (l)(a) Except provided lent crimes. as manslaughter "recklessly." less the mens rea is (b) paragraph (1), any per- of this subsection Padilla, (Colo.1981); People v. 638 P.2d son convicted of a crime of violence shall be 18-1-501(6) (8), 8B C.R.S. The §§ pursuant 18-1-105(9), sentenced C.R.S., to section preliminary hearing court which holds the authority has greater to a term of incarceration than the defendant on a lesser to bind over presumptive range, maximum the but People Hrapski, included offense. v. 658 P.2d term, pro- not more than twice the maximum remand, (Colo.1983), appeal on after vided for such offense in section 18—1— (Colo.1986). P.2d 1050 105(l)(a), C.R.S., suspension; without ... county ruling 4. The court’s not included as (2)(a)(I) appeal, part "Crime so of violence" means a crime of the record on it cannot be used, possessed specific county in which the defendant determined on what basis of, deadly weapon during threatened the use cause was not shown court ruled that attempted the commission or murder. commission of as to the request, ap a Motion to File nies that its prosecution filed decision The Freiman, People v. pealed. Directly in the District 657 P.2d Information 7(c)(2), (Colo.1983). generally 7B C.R.S. “This pursuant court dis Crim.P. argued (1984).5 prosecution courages appeals involving sufficiency that matter of county as a law the evidence determinations. court “erred concluding probable cause not where the evidence is ... sufficient as a cause, After as I.” conduct- matter of to establish established to Count law hearing, agreed and a of the trial ing a the district reversal court’s dismissal required, is not appeal.” court “that we will entertain the Holder, v. (Colo. defend- probable cause to believe 1983); People Hrapski, she was aware that ant’s actions —that remand, (Colo.1983), appeal certain to actions were after therefore, did, and, (Colo.1986). P.2d 1050 the result it [sic] charge directly in motion to file pros At a The defendant district court is denied.” provide ecution must sufficient evidence manslaugh- arraigned reckless on the was person ordinary prudence “to induce a plea charge and entered a of not ter she and caution to a reasonable that the belief guilty. charged.” committed the defendant crimes appeal notice of prosecution The filed a Williams, People 1011, v. 628 P.2d 1014 court, asking us to reverse the or- in this (Colo.1981). prosecution The re is not remand case entered below and ders quired present evidence to to “sufficient original charges. for reinstatement of the Id. support judge pre a conviction.” The siding preliminary hearing at a is II. apply prosecution’s to the law to the case. is dis The issue before us whether the Cisneros, 383, People 380, v. 566 denying trict court abused its discretion 703, (1977). P.2d is not for the 705 “[I]t prosecution’s file motion to a direct judge preliminary trial a to ac information. Holmes v. District cept the version of the facts defendant’s 11,14 (Colo.1983); People v. Frei 668 P.2d legitimate over the inferences which can be man, (Colo.1983). P.2d 657 453 This evidence.” Hold People’s drawn ruling was based on the court's conclusion er, Hearsay other 658 P.2d at 872. county correctly that the court ruled that incompetent properly com evidence there was insufficient evidence to find prelimi prise of the evidence at a the bulk probable charge cause on the Tihonovich, v. Blevins nary hearing. degree murder. (Colo.1986). P.2d preliminary The purpose of a prosecu The test is whether hearing is “to if proba determine there is light evidence, in a tion’s taken alone and to ble cause that an offense has believe prosecution, is suffi most favorable person been committed and that that the cient to induce a reasonable belief charged 16-1-104(14), committed it.” 8A § the crime defendant committed with which (1986). C.R.S. Probable cause must es Holder, charged. 658 P.2d at she has been tablished as each element the crime following deter standards for The charged. People Moyer, 670 P.2d v. mining probable cause (Colo.1983). county If the court dis hearing apply: misses a hear after the cause, (1) is when only for lack of established Probable remedy prosecutor induce a available to the is to is sufficient evidence request ordinary prudence leave caution to file a direct information the district court. If the district court de- to a belief that reasonable 7(c) prosecuting attorney, 5. Rule was held in the states: “The discharged.” having juris- with the accused was consent of the court trial court and the diction, may (2) file a direct 7B information if: C.R.S. (2) charged; shooting crimes The of a and arrived committed the at the defend- in the presented must be viewed home to find evidence ant’s the victim in the front light prosecution; most favorable room of the house. The victim had been conflicts, (3) trial testimony If killed a bullet had entered which. prosecu- inference for the must draw an through right armpit, through his traveled tion; (4) preliminary hearing is The lodged body, hip. his in his left The screening and not a trial. There- device finding pathologist’s gunshot was that the fore, support a con- sufficient to evidence the cause of wound was death. A second required. viction is not lodged ceiling bullet was found in the Williams, gunA People v. 1014; spent the same room. see P.2d at with two Brisbin, (Colo.1986). shells and four live rounds was found at shooting scene; the hammer of the gen is a Second position. in a cocked crime, prosecution and the must eral intent prove factors to the crime. pattern establish two The result of the nitrate exami- The first factor is that death was “more nation was that the muzzle weapon defend merely than result of more than feet from Yizina’s Mingo, ant’s actions.” Colo. body weapon when the fired. The 315, 318, The gunshot result of a residue test on the second factor is that “was negative, “indicating victim’s hands was he of the circumstances which made aware weapon.” not had fired a The result of a Id. death certain.” first gunshot residue test on the defendant was standard, objective factor is an inconclusive. the detective testi- subjective standard. second factor fied that “Ms. Fisher did have residue 74, 70, v. District 198 Colo. explained of her left hand” the back and 1045, 1047 Premeditation that would have to hold that “[a] required. Washing or deliberation is not firing gun in their hand at the time of it to 115, People, ton v. 405 P.2d 735 any residue on the of their have back denied, (1965), 953, cert. 383 U.S. 86 S.Ct. performed on hand.” blood alcohol test 1217, 16 L.Ed.2d 215 Evidence the that Vizina had been victim showed may which would at be inadmissible trial be intoxicated,6 and the detective testified that presented hearing. preliminary at appeared to “somewhat Williams, 628 P.2d at 1014. intoxicated.” us, question To resolve the before hearing, During preliminary the vid- we must determine is suffi whether there statement eotape of Fisher’s second was prelimi cient evidence in the record of the and viewed entered into evidence nary hearing, light when viewed in a most During judge. this state- prosecution, making favorable to the and ment, twenty minutes about which was conflicting inferences from evidence fa explained that she had long, the defendant prosecution, vor of the “to induce a gone the recreational vehicle ordinary prudence caution to a rea room, weapon in brought the front sonable belief that the defendant commit proceeded to hand and the victim where she Id. charged.” ted the crimes suddenly until she heard a it back and forth and realized that the victim was loud boom degree To meet a mur- bleeding. that she did not der, She stated know it must first the death be shown that had happened, had that Vizina what but merely was “more than a result Colo, Pening- repeatedly her to kill him. Mingo, asked of defendant’s actions.” discrepancies be- testified certain judge at 584 P.2d at 633. The heard ton about following testimony preliminary Fisher’s first and second statements at the tween hearing. responded Police to a call to him. officers performed day

6. A test on the victim the after be .293. his death blood revealed his alcohol level to judge or intent to jury from infer an reasonably be inferred this It can probable consequences defendant the natural circumstantial evidence himself, only other acts, voluntary did not shoot knowingly per- unlawful Colo, room was Fisher. In person present in the Mingo, at formed. Mingo, held: we People, Keller v. (citing at 634 Colo. factor, obvi- it is Regarding (1963)). the first 590, 387 P.2d 421 At a preliminary reasonably could con- jury ous a hearing, the court is to draw all discharging clude that prosecution. inferences in favor of the from creates such distance of feet Mingo, no there was evidence that the death that death high probability of shooting or was accidental inadvertent. certain, merely a practically was not Colo, at 584 P.2d at 634. In this probable result. case, only evidence indication that Id. (emphasis P.2d at 634 add- shooting accidental or was inadvertent ed). circumstantial evidence Viewing the videotaped the defendant’s statement. prosecu- light in the most favorable judge “it is not for the trial at a tion, testimony resolving conflicts accept the defend- prosecution, we conclude that favor legit- ant’s of the facts over the version support a reasonable these facts belief imate inferences which can be drawn from merely more than Vizina’s death was People’s Judging the evidence. merits probable result of the defendant’s actions. held, is, repeatedly case as we have requirement for second The second Holder, the trier at trial.” of facts the defendant “was murder is that appropriate P.2d at infer- 872. Based which made aware of the circumstances preserved in this ences the evidence Mingo, certain.” practically death case, purposes we conclude that for of a Colo, there 584 P.2d at While cause determination the victim and the was evidence that both at the hear- sufficient evidence intoxicated at time of defendant were support belief that the a reasonable shooting, no Fish there is evidence that aware of circumstances er’s intoxication rendered unaware that practically death certain. which made firing weapon death “made of self-induced intoxi certain.” Evidence at a The trial role court’s cation, itself, is not sufficient to down whether the is determine evi- to grade degree murder second to reckless support a is sufficient to reasonable dence Bartowsheski, People v. manslaughter. defendant committed the that the belief (evidence 235, (Colo.1983) 661 243 of P.2d proof beyond a reason- charged; not crimes not self-induced intoxication admissible to that, Recognizing we conclude doubt. able negate degree culpabili the second erred as a of the court matter that ty “knowingly”). element of The evidence proba- not concluding in that there was law fired, support shows that two bullets were charge degree cause for the ble the the inference that revolver was therefore murder. The district during fired this incident. have twice We denying prose- in the its abused discretion regard degree held that to with second to refile dismissed cution’s motion murder, may kill be intent to inferred these facts do es- charges. find that We Morant, People v. the act itself. 179 Colo. a cause to believe that tablish 287, 291, 1173, see (1972); 1175 499 P.2d committed, that the defend- crime was Bishop People, 165 Colo. 423, 429, v. 439 crime. We reverse and ant committed the 342, P.2d held 345 We have also to the district court remand with directions deadly weapon that use of a sufficient to grant prosecution’s motion to rein- to jury culpability allow a to infer the element original charges the district state the Hervey Peo v. degree of murder. second court. ple, 43, 204, 38, 495 178 Colo. P.2d 207 regarding defend The evidence ERICKSON, J., dissents. ant’s of mind need not be direct. The state ERICKSON, Justice, dissenting: cumstances. Here was no evidence indication the shooting was acci- respectfully majority I dissent jury might dental or inadvertent. The opinion I that there because believe properly conclude [the] finding proba a insufficient evidence for of high of probability was aware of second-degree of ble cause of admittedly as the result death 18-3-103(l)(a), 8B Section C.R.S. murder. shooting of deliberate the victim at a (1986), provides: “A commits feet. distance second if: crime of murder 318, case, 584 P.2d at 634. In (a) of a Id. at this He causes the death know In Peo indicated that ingly, not after deliberation.” evidence but (Colo. Court, from a distance of ple 662 P.2d 582 shot more than three v. District 1982), victim, be from the but we stated that two factors must feet did not reflect the prove second-degree gun might established murder. outer distance from which the “First, have more the death must been have shot. been merely result of de than People Court, 70, In v. District 198 Colo. Second, actions. fendant’s (Colo.1979), 595 P.2d case in- another been aware the circumstances must have volving review of death certain. made murder, second-degree we stated that standard; second, objective first is an respect to the second factor enunciat- (citations subjective standard.” Id. Mingo: ed in “the conduct the accused— omitted). I Because do not believe that by the as established evidence—demon- factor, prosecution has satisfied second deceased; angry strated that he was at the the district court. would affirm in’ he threatened to ‘smash her face factor, respect epithets voicing anger used his

With the second various 75, prosecution during beating.” provide need not direct evi- before Id. at Again, dence of the state of mind 595 P.2d at 1048. the court found defendant’s subjective beating since not or inad- “the defendant’s aware- that the accidental who re- ness inferred from his conduct and vertent concluded that be “[o]ne surrounding Id.; People peatedly circumstances.” strikes for ten to fifteen another Court, 70, 74, injury v. District 595 P.2d minutes and inflicts massive head Colo. 1045, (Colo.1979). A judge 1048-49 or a on his victim can held be aware jury may presume consequences of actions.” possible an intent to cause the fatal his probable consequences “natural and of ... recently, a trial More we reviewed acts, voluntary per- knowingly unlawful attempted second-de- dismissal of court’s People Mingo, formed.” v. v. District gree murder. (1978)(quoting 584 P.2d Kel- (Colo.1982) (District ler People, Colo. II), factor analyzed the second we Court (1963)). as follows: Mingo, struggle In ensued between Testimony at the victim defendant’s son. From morning preceding the that on the shows feet, shot distance of the defendant shooting had stated the victim the The defendant chest. gun night. to use his he intended shooting admitted the victim and stated Moreover, the stated sometime forgot try- that she “still hadn’t about him “I to shoot shooting'that went after get my try place the back of Toby, got and the shot at Toby, bullet Colo, something.” steal Mingo, Cindy.” sur- my The circumstances respect 633. sec- With to the including rounding shooting, factor, ond the court held: alleged to statements defendant] [the intent, made, of to establish subjective Like awareness have are sufficient of the probability consequences probable he was aware is a mat- cause that consequences his ac- ter often be inferred from fatal which must surrounding cir- defendant’s conduct and tions. case, Mingo and District unlike

In this presented II, LEAGUE, no evidence there was Court COLORADO MUNICIPAL hearing that the defend- Petitioner-Appellant, at the gun deliberately intended to use ant Moreover, the circum- victim. shot MOUNTAIN STATES TELEPHONE AND surrounding shooting do not stances COMPANY; TELEGRAPH the Public was aware of reflect that the defendant Commission of the Utilities State consequences of actions. possible fatal Colorado; Commissioners Andra request of the that at the She admitted Schmidt, Ronald L. Lehr and Arnold H. defendant, from the she retrieved Cook, Respondents-Appellees. camper it to the victim. and handed gun to the defendant victim returned No. 86SA347. knew was thing the defendant and the next Colorado, Supreme Court of my In “loud gun made a boom.” that the En Banc. view, the decision of majority extends progeny too far. Mingo and its July 1988. shooting a majority’s analysis, Under Rehearing Aug. Denied to establish pistol by is sufficient itself second-degree murder. for any distinction between This obliterates second-degree murder required for

intent manslaugh reckless

and that (1986); 18-3-104, 8B C.R.S.

ter. Section Padilla, (Colo. 638 P.2d 15 People v.

see DelGuidice,

1981); People v. viewing the evi light

dence in the most favorable

prosecution, I the evidence do not believe

established the defendant was aware to cause

her acts were certain reason,

the death of the victim. For that second-degree

probable cause for Accordingly, I

has not established.1 been affirm the district court’s affirmance

would court. court, view, judge], is not my 1. The district did not abuse [the following its discretion when it made the oral cause to believe that the defendant practical- order: was aware that her actions were ... did, [they] evidence, ly result that Having certain to cause the reviewed all of the therefore, and, transcript prelimi- the motion to file that was submitted for the nary hearing tape agree directly is denied. in district court and the ... do

Case Details

Case Name: People v. Fisher

Court Name: Supreme Court of Colorado

Date Published: Jul 5, 1988

Citation: 759 P.2d 33

Docket Number: 86SA495

Court Abbreviation: Colo.