The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ellsworth Fain MARCY, Defendant-Appellant.
No. 80SA303.
Supreme Court of Colorado, En Banc.
March 9, 1981.
Rehearing Denied May 26, 1981.
628 P.2d 69
QUINN, Justice.
J. Gregory Walta, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Norman R. Mueller, Chief Appellate Deputy, Denver, for defendant-appellant.
QUINN, Justice.
This appeal challenges the constitutionality of subsection (1)(d) of the first degree murder statute,
I.
The defendant was charged in an indictment filed in the El Paso County District Court with violation of two alternative subsections of the first degree murder statute:
The defendant testified that he was slipping in and out of a trance-like state shortly before the shooting and last remembers pointing the revolver in his wife‘s general direction while she told him not to cock the hammer. There wаs some evidence, albeit circumstantial, that the wife may have gained possession of the revolver before the shooting.2 The defendant telephoned the sheriff‘s office to report the incident. A sheriff‘s officer responding to the scene observed Mrs. Marcy moaning in a recliner chair in the recreation room. Efforts to save her failed and she died of massive internal bleeding due to a gunshot wound through the liver. The defendant admitted the shooting to the sheriff‘s officers but claimed that he did not intend to shoot and may have put too much pressure on the trigger. A specimen of the defendant‘s blood indicated that his level of blood alcohol was 0.240 percent.
The court instructed the jury and submitted alternative verdicts on first degree murder after deliberation and first degree murder by extreme indifference, as well as the lesser included offenses of second degree murder, manslaughter and criminally negligent homicide. The jury returned a verdiсt of guilty to first degree murder by extreme indifference.3 The defendant was sentenced to life imprisonment,
The defendant argues that there is no rational distinction between first degree murder by extreme indifference as defined in
The general purposes of the criminal law are several and include: the adеquate definition of the act and mental state of each offense so that fair warning is given to all persons concerning the nature of the proscribed conduct and the penalties therefor,
In order to subject a person to criminal liability for his conduct, there generally must be a concurrence of an unlawful act (actus reus) and a culpable mental state (mens rea). United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980); Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); Kent v. People, 8 Colo. 563, 9 P. 852 (1886). With a few narrow exceptions, the sanctions of the criminal law are not imposed on the blameless. The minimum requirement for the imposition of criminal liability is that the criminal act be performed voluntarily or consciously.
It is worth repeating here that “it is not the role of this court to act as overseer of all legislative action and declare statutes unconstitutional merely because we believe they could be better drafted or more fairly applied.” People ex rel. Russel v. District Court, 185 Colo. 78, 81, 521 P.2d 1254, 1255 (1974). On the other hand, we cannot disregard our responsibility to the rational and evenhanded application of the law under our state system of criminal justice. Equal protection of the laws under the
In United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), the United States Supreme Court held that the prosecution and punishment of an accused for criminal conduct (receipt by a convicted felon of a firearm that had traveled in interstate commerce) that was identically dеfined but differently punished (five year and two year maximums) under separate sections of a statutory scheme did not violate equal protection of the laws under the
“Equal protection of the law is a guarantee of like treatment of all those who are similarly situated. Classification of persons under the criminal law must be under legislation that is reasonable and not arbitrary. There must be substantial differences having a reasonable relationship to the persons involved and the public purpose to be achieved.” People v. Calvaresi, 188 Colo. at 281-82, 534 P.2d at 318.
Other states in like manner have concluded that duplicative criminal statutes imposing different penalties for identical conduct irrationally discriminate аgainst an accused in violation of equal protection. E. g., State v. Chavez, 77 N.M. 79, 419 P.2d 456 (1966); Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968); State v. Pirkey, 203 Or. 697, 281 P.2d 698 (1955); State v. Shondel, 22 Utah 2d 343, 453 P.2d 146 (1969). The requirement of reasonable classification in legislative proscriptions enhances the evenhanded application of the law in the process of judicial adjudication. See generally Comment, Prosecutorial Discretion In the Duplicative Statutes Setting, 42 Colo. L. Rev. 455 (1971); Comment, The Right to Nondiscriminatory Enforcement of State Penal Laws, 61 Colum. L. Rev. 1103 (1961).
Under recent pronouncements of this court equal protection of the laws is violated if different statutes proscribe the
III.
“Under circumstances manifesting extreme indifference to the value of human life, he knowingly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another.”
Both extreme indifference murder and second degree murder were first enacted as part of the Colorado Criminal Code which went into effect on July 1, 1972. As originally enacted both offenses required the culpable mental state of “intentionally.”7 Colo.Sess.Laws 1971, ch. 121, 40-3-102(1)(d) and 40-3-103(1)(a) at 418. Under the Colorado Criminal Code second degree murder was a specific intent crime. People v. Cornelison, 192 Colo. 337, 559 P.2d 1102 (1977). Effective July 1, 1977, the culpability requirements for both offenses were amended to “knowingly“. Colo.Sess.Laws 1977, ch. 224, 18-3-102(1)(d) and 18-3-103(1)(a) at 960. The General Assembly made clear the purpose underlying this amendment: “All offenses defined in this code in which the mental culpability is expressed as ‘knowingly’ or ‘willfully’ are de-
The statutory definition of “extreme indifference murder” in
In Longinotti v. People, 46 Colo. 173, 102 P. 165 (1909), this court considered the type of conduct encompassed by the statutory prohibition in existence prior to the enactment of the Colorado Criminal Code in 1971:
“Every act that results in the death of a person is greatly dangerous to the life of such person, but the statute . . . is intended to include those cases where a person has no deliberate intention to kill any particular person. In other words, when a person kills another by an act which is greatly dangerous to the lives of others, and which shows a depraved mind regardless of human life, he is guilty of murder in the first degree; not because he has atrociously murdered a particular individual, but because his act has evinced universal malice, a malice against mankind in general.
* * * * * *
“We think the legislature . . . intended to raise to the high grade of murder in the first degree those homicides which are the result of what is called ‘universal malice‘. By universal malice, we do not mean a malicious purpose to take the life of all persons. It is that depravity of the human heart, which determines to take life upon slight or insufficient provocation, without knowing or caring who may be the victim.” Id. at 176, 180-81, 102 P. at 166, 168.
We first examined extreme indifference murder under the Colorado Criminal Code, 1971 Perm.Supр., C.R.S.1963, 40-3-102(1)(d), in People ex rel. Russel v. District Court, supra, decided in 1974. The statutory definition at that time corresponded to its present analogue except for the 1977 amendment replacing “intentionally” with “knowingly“. Colo.Sess.Laws 1977, ch. 224, § 5 at 960. The issue in People ex rel. Russel was whether extreme indifference murder was void for vagueness as indistinguishable from second degree murder. We distinguished extreme indifference murder from second degree murder by employing an analysis similar to that employed in Longinotti v. People, supra:
“As we read the section in question, the element which distinguishes it from second-degree murder is that the latter degree requires that the perpetrator possess the intent to take the life of a particular person while this first-degree murder statute does not. The element of ‘extreme indifference to human life,’ by definition, does not address itself to the life of the victim, but to human life generally. Conversely, though the statute requires that the conduct which creates a grave risk of death be intentional, the use of ‘intentionally’ here does not neсessarily mean that the intent be to take the life of a particular person. Indeed, if such were the case, there would be but little difference between this statute and the other sections of the first-degree murder statute, see 1971 Perm.Supp., C.R.S.1963, 40-3-102(1)(a). Furthermore, our statutes
define ‘intentionally’ as ‘when his conscious object is to cause that result or to engage in that conduct,’ 1971 Perm.Supp., C.R.S.1963, 40-1-601(6), which we read to mean that the conduct creating the grave risk of death be consciously done. “Again, in contrast, the second-degree murder statute states in part that ‘he cause the death of a person intentionally, but without premeditation.’ 1971 Perm.Supp., C.R.S.1963, 40-3-102(1)(a). We believe the only construction which that phrase can be given is that the intent be to cause the death of a particular person. Otherwise, there would be no need to distinguish between 1971 Perm.Supp., C.R.S. 1963, 40-3-102(1)(a), which by definition is the premeditated taking of a person‘s life, and second degreе murder.” Id. at 83-84, 521 P.2d at 1256-57.
The result in People ex rel. Russel is sound primarily because, under the then existing statutory scheme, second degree murder was a specific intent crime. 1971 Perm. Supp., C.R.S.1963, 40-3-103(1)(a); Cornelison v. People, supra.
People v. Jones, 193 Colo. 250, 565 P.2d 1333 (1977), appeal dismissed, 434 U.S. 962, 98 S.Ct. 498, 54 L.Ed.2d 447 (1977), extended the scope of extreme indifference murder to a situation where the defendant caused the death of his female acquaintance by what ostensibly was an intentional stabbing. On appeal the defendant contended that “the facts of the case do not evince . . . [a] depraved mind or universal malice” required for murder by extreme indifference. Id. at 250, 565 P.2d at 1336. The Jones opinion rejected this argument and stated that the statutory proscription was not exclusively limited to conduct that greatly endangers many persons but encompasses conduct that creates a grave risk of death to a single person. Although the application of the statute to the disputed facts there present constituted a significant departure from the narrow construction of People ex rel. Russel v. District Court, supra, Jones did acknowledge that the requisite culpability for extreme indifference murder was substantively distinct from the culpability requirements for other criminal homicides.
Under the initial statutory scheme the mens rea for extreme indifference murder—intentionally engaging in conduct which creates a grave risk of death—was not bottomed in the result of the act but in the conduct. The culpability contemplated by the statutory definition of the crime, 1971 Perm.Supp., C.R.S.1963, 40-3-102(1)(d), was not a specific intent to kill, but rather consisted of a conscious awareness that the conduct created a life endangering risk to another. People ex rel. Russel v. District Court, supra. Murder in the second degree required a specific intent to kill, that is, a conscious object to cause the death of another. 1971 Perm. Supp., C.R.S. 1963, 40-3-103(1)(a); People v. Cornelison, supra; People ex rel. Russel v. District Court, supra. First degree murder after deliberation required both a specific intent to kill and a decision to kill “made after the exercise of reflection and judgment concerning the act.”
Thus, while Jones construed thе statutory definition of extreme indifference murder to include conduct that created a grave risk of death “to a single person,” the statutory culpability for the crime remained nevertheless categorically distinct from the culpable mental states for other criminal homicides. Statutory discreteness in culpability, however, was significantly altered in 1977 when the mens rea for second degree murder was changed from a specific intent to a general intent—causing “the death of a person knowingly.”
IV.
By virtue of the 1977 amendment to the Colorado Criminal Code “knowingly” was substituted for “intentionally” in
“A person acts ‘knowingly’ or ‘willfully’ with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such a nature or that such circumstance exists. A person acts ‘knowingly’ or ‘willfully‘, with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause that result.”
Upon close scrutiny of the culpability elements of each offense, both of which mandate that the death-causing act be done “knowingly“, we are unable to find any rational basis of distinction between first degree murder by extreme indifference under
A.
Under the statutory definition of “knowingly“, the culpable mental state for extreme indifference murder is that the offender be aware that his conduct creates a grave risk of death to another. This culpability, however, is certainly no greater than that required for second degree murder. We considered the mens rea of second degree murder in People v. Mingo, 196 Colo. 315, 317, 584 P.2d 632, 633 (1978), and held that under the 1977 amendment “[s]econd-degree murder is a general intent crime which entails being aware that one‘s actions are practically certain to result in another‘s death.” See also People v. Del Guidice, Colo., 606 P.2d 840 (1979); People v. District Court, Sixth Judicial District, 198 Colo. 70, 595 P.2d 1045 (1979).
While, as a matter of conceptual possibility, one might be aware that his conduct creates a grave risk of death to another, as required for extreme indifference murder, and simultaneously lack that awareness required for second degree murder—that his actions are practically certain to result in another‘s death—it would be a most bizarre psychological state and certainly not a basis on which to structure momentous variations in sanctions. If, indeed, a person could harbor an awareness of the fatal risk his conduct poses to another, without also being aware of the practical certainty that death to another will result from that conduct, he would on that account be the less blameworthy, lacking as he would an awareness of the practical certainty of death. However, under the statutory scheme governing this case, he would be the more culpable as manifested by the difference in penalties for extreme indifference murder (life imprisonment) and second degree murder (ten to fifty years).
B.
The People argue that the conduct or actus reus proscribed by extreme indifference murder is categorically distinct from second degree murder. We find no salvageable distinction in the present statutory scheme.
Extreme indifference murder involves conduct that creates a grave risk оf death to another. “Grave” is commonly understood to mean serious or imminent, or likely to produce great harm or danger. See Webster‘s New International Dictionary at 1094 (2d ed. 1958). Second degree murder encompasses conduct that is practically certain to cause the death of another. People v. Del Guidice, supra; People v. District Court, Sixth Judicial District, supra; People v. Mingo, supra. “Practical certainty” has been used interchangeably with the term “more than merely a probable result.” People v. Del Guidice, supra. In People v. Mingo, supra, it was described as “such a high probability of death that death was practically certain.” 196 Colo. at 318, 584 P.2d at 634. In the context of criminal homicide, conduct that is practically certain to cause the death of another is the semantic equivalent of conduct creating a grave risk of death to another. Any difference here is so imperceptible as to vitiate its meaningful application in an adjudicative proceeding.
C.
Finally, it is argued that the presence of “circumstances manifesting extreme indifference to the value of human life” marks the dividing line between extreme indifference murder and second degree murder. We disagree.
The statutory terminology under scrutiny is descriptive of the facts or circumstances under which the death causing conduct occurred. It seems to reflect a judgment that there is a certain indifference that is qualitatively distinct from the conscious disregard required for reckless manslaughter. One commentator has observed that the adjective “extreme” is misplaced because there are no degrees of indifference to a particular result.8
We do not view the term “under circumstances manifesting extreme indifference to the value of human life” as without meaning. What it connotes is a heightened awareness and disregard of a fatal risk. People ex rel. Russel v. District Court, supra, noted that “an extreme indifference to human life is clearly a more culpable standard of conduct” than the reckless conduct involved in manslaughter but did not describe that standard. Reckless manslaughter requires a conscious disregard of a substantial and unjustifiable risk of death.
Moreover, any heightened awareness and disregard of fatal risk connoted by the “extrеme indifference” terminology of
V.
In summary, we hold that the statutory prohibition of extreme indifference murder in
By our holding we do not imply that extreme indifference murder may not effectively be proscribed by statute. We emphasize, however, that an evenhanded application of the law turns on reasonably intelligible standards of criminal culpability. Hence any definition of extreme indifference murder must be sufficiently coherent and discrete that a person of average
The defendant‘s conviction of extreme indifference murder is reversed. No verdicts were returned on first degree murder after deliberation, nor on the lesser included offenses of second degree murder, reckless manslaughter, and criminally negligent homicide.
Accordingly, the cause is remanded for a new trial on first degree murder after deliberation and any lesser included offenses that appropriately might be submitted to the jury on retrial.
ROVIRA, Justice, dissenting.
I respectfully dissent.
If one interprets the evidence in favor of the jury‘s verdict in this case, the defendant, an experienced marksman, pointed a loaded pistol at his wife which he knew to be loaded, cocked the hammer, and then pulled the trigger believing the barrel was not pointed directly at her. They had been arguing about various family problems; and on past occasions, he had pointed the gun at himself and at his wife аs a way of maintaining control within the family.
The majority has upheld the defendant‘s challenge to the facial constitutionality of the statute under which he was convicted,
My analysis differs in certain fundamental respects, and I reach an opposite conclusion.
I.
In order to understand the majority‘s opinion, it is helpful to clarify its context. The statutory language of
The Calvaresi doctrine is grounded on the premise that equal justice is a constitutional guarantee of like treatment for all those who are similarly situated. The converse proposition—that different statutes may punish differently—has also received consistent support from this court. See, e. g., People v. Westrum, Colo., 624 P.2d 1302 (1981); People v. Estrada, supra; People v. Hulse, 192 Colo. 302, 557 P.2d 1205 (1976); People v. McKenzie, 169 Colo. 521, 458 P.2d 232 (1969). Our determination of similarity and difference, by necessity, requires that we consider the meaning of shifting and varying statutory criteria. However, the conduct of our review in such cases should, in my opinion, be restrained by basic principles of constitutional interpretation.
It is our duty to presume that a statute on its face is constitutional and that it was intended by the legislature to be constitutional. People v. Edmonds, 195 Colo. 358, 578 P.2d 655 (1978); People v. Garcia, 189 Colo. 347, 541 P.2d 687 (1975). This legislative intent is to be ascertained and givеn effect wherever possible. People v. Sneed, 183 Colo. 96, 514 P.2d 776 (1973). We should not seek out reasons to invalidate a statute. Harris v. Heckers, 185 Colo. 39, 521 P.2d 766 (1974). Rather, if the statute
In the present case, the majority‘s interpretation of the statute ignores one obvious difference between extreme indifference murder and second-degree murder—the existence of an additional element of the offense. It then construes the statute‘s culpability requirement in such a way as to stress points of similarity between the offenses instead of their essential point of difference.
II.
The Colorado legislature has adopted a degree structure for murder offenses and has established a variety of other homicide offenses. See
“Everything which is regarded as enhancing the moral guilt of a particular offense is recognized as a reason for increasing the severity of the punishment awarded to it.” J. Stephen, A History of the Criminal Law of England, vol. II, at 81 (London, 1883).
A comparison of the two statutes at issues here clearly demonstrates that extreme indifference murder contains an element in addition to those established for second-degree murder. The elements of the latter offense,
The majority holds that this third element of extreme indifference murder “connotes . . . a heightened awareness and disregard of a fatal risk.” Whatever the merits of this proposed definition, the majority proceeds to transform its possible meaning by setting up a series of interpretive equations, first with willful conduct (a “level of culpability that is more than reckless, but less than intentional“) and then with knowing conduct [defined as identical with willful conduct under
The circumstanсes under which an act is performed may have a vital effect upon the seriousness of its legal consequences. For instance, if a person intentionally causes the death of another under circumstances that show he acted “upon a sudden heat of passion,” he is guilty of manslaughter rather than a murder offense under Colorado‘s legislative scheme. See
“When a workman flings down a stone or piece of timber into the street, and kills a man; this may be either misadventure, manslaughter, or murder, according to the circumstances under which the original act was done: if it were in a country village, where few passengers are, and he calls out to all people to have a care, it is misadventure only; but if it were in London, or оther populous town, where people are continually passing, it is manslaughter, though he gives loud warning; and murder, if he knows of their passing, and gives no warning at all.” The Common Law at 50 (Howe ed., Little, Brown and Company, 1963).
In a similar manner, under our present legislative scheme, which provides a much broader and more sophisticated range of homicide offenses than did the common law, a defendant is subject to a greater penalty if he knowingly causes the death of another “[u]nder circumstances manifesting extreme indifference to the value of human life.”
An extreme indifference to the value of human life may be defined as a “depraved kind of wantonness.” See People v. Poplis, 30 N.Y.2d 85, 281 N.E.2d 167, 330 N.Y.S.2d 365 (1972). It is more blameworthy than the indifference to human life implicit in second-degree murder because the defendant‘s behavior shows that his disrespect, lack of care, and lack of concern for the value of human life are extreme. The quality of extreme indifference distinguishes this form of murder from second-degree murder because it is possible to commit second-degree murder without it. The nature, duration, and intensity of the murderer‘s culpable state of mind, as well as his manner of killing, his relationship to the victim, and the presence or absence of mitigating factors, may all affect a jury‘s determination of whether circumstances are present which justify the conclusion that the defendant acted with extreme indifference to the value of human life.
The presence of this element must be proven by sufficient, competent evidence. A jury‘s finding of guilt for extreme indifference murder requires that the jurors made an additional judgment of a distinct kind beyond what is necessary for a verdict of guilty to second-degree murder. They must be persuaded beyond a reasonable doubt that the degree of indifference to human life shown by the defendant in committing murder was “extreme.”
A variety of circumstances may exhibit a legally sufficient degree of depravity or of outrageоus disregard for human life to support a jury‘s find that a defendant has committed an offense such as that proscribed in the extreme indifference murder statute. For example, such circumstances exist when, during a game of Russian roulette, the defendant points a revolver loaded with a single cartridge at his friend and fires it on the third pull of the trigger [Commonwealth v. Malone, 354 Pa. 180, 47 A.2d 445 (1946)], or when a defendant fires several shots into a home which he knows to be occupied [Hill v. Commonwealth, 239 Ky. 646, 40 S.W.2d 261 (1931)], or when an adult defendant subjects a small child to repeated brutal beatings [People v. Poplis, supra], or when a defendant intends to shoot over his victim‘s head in order to scare him and hits him by “mistake” [Myrick v. State, 199 Ga. 244, 34 S.E.2d 36 (1945)]. Other and certainly more heinous forms of indifference to the value of human life can be imagined, but the majority‘s constitutional resolution of the present case makes all such circumstances equally irrelevant.2
III.
Thе two statutes which are being compared differ in one other important aspect: the relation of their culpable mental states to their other statutory elements.
As the majority points out, the Colorado Criminal Code has consistently provided that extreme indifference murder and second-degree murder contain the same mens rea element. Prior to amendments made in 1977, both statutes required that their respective criminal acts be committed “intentionally.” See
The definition of acting “knowingly” is given in
“A person acts ‘knowingly’ . . . with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. A person acts ‘knowingly’ . . . with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result.” (Emphasis added.)
We have prеviously interpreted the mens rea element of second-degree murder in relation to the preceding definition:
“The elements of murder in the second degree concerning the defendant‘s state of mind are (1) that the death was more than merely a probable result of the defendant‘s actions and (2) that the defendant was aware of the circumstances which made death practically certain.” People v. District Court, 198 Colo. 70, 595 P.2d 1045, 1047 (1979), citing People v. Mingo, 196 Colo. 315, 584 P.2d 632 (1978).
The first aspect of this requirement is measured by an objective standard: Did the defendant engage in conduct which made the victim‘s death more than merely a probable result of his actions? The second aspect of this mens rea is tested by a subjective standard: Was the defendant aware of the circumstances which made the victim‘s death practically certain?
I agree with the majority that the state of mind necessary to commit extreme indifference murder contains the elements of second-degree murder. The dеfendant must be shown to have caused a death which was more than merely the probable result of his actions, and he must be shown to have been aware that his conduct created a “grave risk of death” to another. An awareness of the “grave risk of death” and an awareness of the practical certainty of causing death are functional equivalents.
However, the presence of an additional element in the definition of extreme indifference murder requires the prosecution to prove that the defendant was aware that his conduct manifested an extreme indifference to the value of human life when he knowingly caused the victim‘s death. See
IV.
It is obvious from my interpretation of these statutes that I find
In order to be guilty of extreme indifference murder, a defendant by positive implication must have committed acts which would justify a conviction for second-degree murder. However, guilt for second-degree
It is a well-known principle in Colorado that a single criminal transaction may give rise to the violation of more than one statute. People v. Westrum, supra; People v. James, 178 Colo. 401, 497 P.2d 1256 (1972); People v. McKenzie, supra. See People ex rel. Russel v. District Court, supra (the trial court found probable cause to support a charge under
I cannot agree with the majority‘s interpretation of
ERNEST C. ROVIRA
JUSTICE