The PEOPLE of the State of Colorado, Petitioner, v. John Leago THOMAS, Jr., Respondent.
No. 84SC487.
Supreme Court of Colorado, En Banc.
Dec. 15, 1986.
729 P.2d 972
Sawaya, Rose & Roads, P.C., Richard B. Rose, Robert Ward, Denver, for respondent.
LOHR, Justice.
The defendant, John Leago Thomas, Jr., was convicted of attempted reckless manslaughter and first degree assault as the result of a jury trial in Adams County District Court. On appeal, the defendant argued, among other things, that attempted reckless manslaughter is not a cognizable crime in Colorado. The court of appeals agreed with the defendant‘s argument and reversed the conviction for attempted reckless manslaughter, but affirmed the conviction for first degree assault. People v. Thomas, 694 P.2d 1280 (Colo.App.1984). We granted certiorari to determine whether attempted reckless manslaughter is a cognizable crime in the state of Colorado. We conclude that it is, and hold that the court of appeals erred in reversing the defendant‘s conviction for that crime.
I.
On the evening of February 4, 1981, the defendant received a teleрhone call from a former girlfriend informing him that she had been raped in her apartment by a man who lived in an apartment upstairs. The defendant arrived at the woman‘s apartment shortly thereafter, armed with a pistol. He went upstairs and gained entrance into the apartment occupied by the alleged assailant by identifying himself as a policeman. The defendant pointed his gun at the man who, believing the defendant was a police officer, accompanied him back down to the woman‘s apartment. The woman identified the man as the rapist, and the defendant instructed her to call the police. At that time, the man started to flee to his own apartment, and the defendant gave chase. The defendant fired three shots, two of which struck the fleeing man. The
The jury was instructed on the crimes of attempted first degree murder, first degree assault, and the lesser included offenses of attempted second degree murder, attempted reckless manslaughter, attempted heat of passion manslaughter, and second degree assault. The jury returned verdicts of guilty to the charges of first degree assault and attempted reckless manslaughter, and the trial court entered judgment accordingly.
Upon appeal, the court of appeals sustained the conviction for first degree assault, but reversed the attempted reckless manslaughter conviction on the basis that attemptеd reckless manslaughter is not a legally cognizable offense in Colorado. People v. Thomas, 694 P.2d 1280 (Colo.App.1984). We granted certiorari to review that latter conclusion and the resulting reversal of the defendant‘s conviction for attempted reckless manslaughter.
II.
A.
The language of the relevant statutes provides the framework for our analysis. The crime of reckless manslaughtеr is defined in
(1) A person commits the crime of manslaughter if:
(a) He recklessly causes the death of another person; . . . .
“Recklessly,” the relevant culpable mental state for this crime, is defined in
(8) A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a result will occur or that a circumstance exists.
As applied to the offense of reckless manslaughter, the requisite conscious disregard of a substantial and unjustifiable risk relates to a result, the death of another person.
The inchoate offense of criminal attempt is defined as follows in
A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward thе commission of the offense. A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor‘s purpose to complete the commission of the offense. . . .
The court of appeals held that “[r]ecklessness is . . . a mental culpability which is incompatible with the concept of an intentional act.” People v. Thomas, 694 P.2d at 1281. This is so, the court held, because the “conscious disregard” with respect to risk of death that is essential to reckless manslaughter cannot be equated with the conscious intent to cause death which the court of appeals implicitly determined to be a necessary element of the offense of criminal attempt in this context. Id. On certiorari review, the defendant supports this analysis, contending that “[o]ne cannot intend to cause a specific result . . . by consciously disregarding the risk that the result will occur.” A careful analysis of the elements of criminal attempt and of reckless manslaughter demonstrates, however, that the court of appeals’ analysis and the defendant‘s supporting arguments are misconceived.
In People v. Frysig, 628 P.2d 1004 (Colo.1981), we construed the criminal attempt statute in the context of a charge of attempted first degree sexual assault. We held that the intent to commit the underlying offense is an essential element of the crime. Frysig, 628 P.2d at 1010.
More precisely, in order to be guilty of criminal attempt, the actor must act with the kind of culpability otherwise required for commission of the underlying offense and must engage in the conduct which constitutes the substantial step with the further intent to perform acts which, if completed, would constitute the underlying offense. Id. In order to complete the offense of reckless manslaughter, it is necessary that the actor cause the death of anоther person by acting in a manner that involves a substantial and unjustifiable risk of death of that other person and that the actor be conscious of that risk and of its nature when electing to act. See People v. Shaw, 646 P.2d 375, 380 (Colo.1982); People v. Bettis, 43 Colo. App. 104, 106, 602 P.2d 877, 878 (1979). Attempted reckless manslaughter requires that the accused have the intent to commit the underlying offense of reckless manslaughter. The “intent to commit thе underlying offense” of which People v. Frysig speaks is the intent to engage in and complete the risk-producing act or conduct. It does not include an intent that death occur even though the underlying crime, reckless manslaughter, has death as an essential element.1
The crime of attempted reckless manslaughter also requires that the risk-producing act or conduct be commenced and sufficiently pursued to constitute a “substantial step toward the commission of the offense.”
Finally, in order to be guilty of attempted reckless manslaughter the actor must engage in the requisite acts or conduct “with the kind of culpability otherwise required for the commission of the underlying offense,” People v. Frysig, 628 P.2d at 1010, that is, with a conscious disregard of a substantial and unjustifiable risk that the acts or conduct will cause the death of another person. See
Our analysis of the crime of attempted reckless manslaughter is buttressed by the case of People v. Castro, 657 P.2d 932 (Colo.1983), in which we held that attempted extreme indifferencе murder is a cognizable crime under the Colorado Criminal Code. In that case, the defendant urged that extreme indifference murder involves an unintentional and inchoate act—apparently referring to the required element of the death of another, which can more accurately be characterized as a result than as an act—and that criminal attempt requires an intent to complete the underlying offense. Id. at 937. The latter intent, the argument proceeded, necessarily involves an intent that the death of another result from the actor‘s conduct. Id. The defendant argued that to intend an unintentional and inchoate act defies logic, so there can be no such crime as attеmpted extreme indifference murder. Id. We concluded that an essential premise of this argument
Stated somewhat differently, People v. Castro makes clear that the intent requirement for extreme indifference murder does not involve a conscious object to kill, but instead necessitatеs a conscious object to engage in conduct that in fact creates a grave risk of death to another. This is not the specific intent encompassed within the Colorado Criminal Code‘s definition of the terms “intentionally” or “with intent” which requires a conscious object to cause a proscribed result. See
In People v. Krovarz, 697 P.2d 378 (Colo.1985), we employed a new mode of analysis to determine whether a particular substantive crime can provide a foundation for criminal attempt liability. There, we examined the rationale for imposition of criminal penalties for attempts falling short of accomplishment of a completed substantive crime. We concluded that “culpability for criminal attempt rests primarily upon the actor‘s purpose to cause harmful consequences,” and that “[p]unishment is justified where the actor intends harm because there exists a high likelihood that his ‘unspent’ intent will flower into harmful conduct at any moment.” People v. Krovarz, 697 P.2d at 381 (citing Enker, Mens Rea and Criminal Attempt, 1977 Am.Bar. Found.Res.J. 845, 855-56). We held, however, that our criminal attempt statute does not requirе a conscious purpose to achieve proscribed results as a condition to criminal liability. Id. at 383. That is, criminal attempt is not a specific intent offense as such offenses are described in
In Krovarz, we recognized that the underlying offense may consist of elements of conduct, result and circumstance and that where “knowingly” is the culpable mental state attached to each, as it is in the case of the crime of aggravated robbery involved in Krovarz, it is necessary to еxamine that mental state in relation to each type of element to see whether there inheres in each the potential danger that signals the legislative intent to impose criminal attempt liability. 697 P.2d at 381.2
The culpable mental state for reckless manslaughter, in contrast, is “recklessly,” which is directed only toward result, the death of another person. Under Krovarz, therefore, it is necessary to examine the mental state of “recklessly” in relation to the result of death of another in order to see whether it involves the potential danger that justifies the conclusion that attempt liability may be founded on the substantive offense of reckless manslaughter.
One acts recklessly with respect to result when he сonsciously disregards a substantial and unjustified risk that a result will occur.
We suggested in Krovarz that recklessness might not suffice. We now conclude, however, that it does. The critical inquiry under Krovarz is potential for future danger. For this purpose, the awareness of a practical certainty of the prohibited result that is required for knowing conduct cannot be viewed as more dangerous, in any important degree, than the conscious disregard of a substantial and unjustifiable risk that the proscribed result will occur—the hallmark of reckless action. Although
We conclude that the index of dangerousness analysis utilized in People v. Krovarz leads to the same result achieved by examining and construing the statutory language under the standards of People v. Castro, 657 P.2d 932, and People v. Frysig, 628 P.2d 1004. Accordingly, we hold that attempted reckless manslaughter is a crime proscribed by the Colorado Criminal Code.
We reverse that part of the court of appeals’ judgment overturning the defendant‘s conviction for attempted reckless manslaughter.
DUBOFSKY, J., specially concurs.
DUBOFSKY, Justice, specially concurring:
I join the majority opinion under the facts of this case. People v. Krovarz, 697 P.2d 378, 381 n. 9 (Colo.1985), suggests that the analysis employed in that case should not be extended to attempted reckless conduct. The footnote in Krovarz reflected the concern of a commentator who observed that allowing one to be charged with attempted murder under the wide range of conduct encompassed within “reckless,” without a resulting death, may extend criminal liability for harmful conduct to situations such as driving very fast on the wrong side of the road while going around a curve. Enker, Mens Rea and Criminal Attempt, 1977 Am.Bar Found. Res.J. 845, 854. The conduct is not in fact harmful if there is no traffic coming in the opposite direction. Id. The commentator suggested that where the actor risks harm, rather than intending harm, the conduct should be penalized under a legislative definition of a substantive crime instead of the common law definition of attempt. Id. at 859. Given the facts in this case, however, I am convinced that the defendant came close enough to intending harm that he can be convicted of attempted reckless manslaughter.