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People v. Fisher7/5/1988
zina's death was more than merely a probable result of the defendant's actions.
The second requirement for second degree murder is that the defendant "was aware of the circumstances which made death practically certain." Mingo, 196 Colo. at 318, 584 P.2d at 633. While there was evidence that both the victim and the defendant were intoxicated at the time of the shooting, there is no evidence that Fisher's intoxication rendered her unaware that firing the weapon "made death practically certain." Evidence of self-induced intoxication, by itself, is not sufficient to downgrade second degree murder to reckless manslaughter. People v. Bartowsheski, 661 P.2d 235, 243 (Colo. 1983) (evidence of self-induced intoxication not admissible to negate the second degree murder culpability element of "knowingly"). The evidence shows that two bullets were fired, supporting the inference that the revolver was fired twice during this incident. We have held that with regard to second degree murder, intent to kill may be inferred from the act itself. People v. Morant, 179 Colo. 287, 291, 499 P.2d 1173, 1175 (1972); see Bishop v. People, 165 Colo. 423, 429, 439 P.2d 342, 345 (1968). We have also held that use of a deadly weapon is sufficient to allow a jury to infer the culpability element of second degree murder. Hervey v. People, 178 Colo. 38, 43, 495 P.2d 204, 207 (1972). The evidence regarding defendant's state of mind need not be direct. The judge or jury may infer an intent to cause the natural and probable consequences of unlawful voluntary acts, knowingly performed. Mingo, 196 Colo. at 74, 584 P.2d at 634 (citing Keller v. People, 153 Colo. 590, 387 P.2d 421 (1963)). At a preliminary hearing, the court is required to draw all inferences in favor of the prosecution.
In Mingo, there was no evidence that the shooting was accidental or inadvertent. 196 Colo. at 74, 584 P.2d at 634. In this case, the only evidence or indication that the shooting was accidental or inadvertent was the defendant's videotaped statement. However, "it is not for the trial judge at a preliminary hearing to accept the defendant's version of the facts over the legitimate inferences which can be drawn from the People's evidence. Judging the merits of the case is, as we have repeatedly held, for the trier of facts at trial." Holder, 658 P.2d at 872. Based on appropriate inferences from the evidence preserved in this case, we conclude that for purposes of a probable cause determination there was sufficient evidence at the preliminary hearing to support a reasonable belief that the defendant was aware of the circumstances which made death practically certain.
The trial court's role at a preliminary hearing is to determine whether the evidence is sufficient to support a reasonable belief that the defendant committed the crimes charged; not proof beyond a reasonable doubt. Recognizing that, we conclude that the county court erred as a matter of law in concluding that there was not probable cause for the charge of second degree murder. The district court therefore abused its discretion in denying the prosecution's motion to refile the dismissed charges. We find that these facts do establish probable cause to believe that a crime was committed, and that the defendant committed the crime. We reverse and remand with directions to the district court to grant the prosecution's motion to reinstate the original charg
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