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People v. Fisher7/5/1988
es in the district court.
JUSTICE ERICKSON dissents.
Disposition
REVERSED AND REMANDED WITH DIRECTIONS
JUSTICE ERICKSON dissenting:
I respectfully dissent to the majority opinion because I believe that there was insufficient evidence for a finding of probable cause on the charge of second-degree murder. Section 18-3-103(1)(a), 8B C.R.S. (1986), provides: "A person commits the crime of murder in the second degree if: (a) He causes the death of a person knowingly, but not after deliberation." In People v. District Court, 652 P.2d 582 (Colo. 1982), we stated that two factors must be established to prove second-degree murder. "First, the death must have been more than merely a probable result of the defendant's actions. Second, the defendant must have been aware of the circumstances that made death practically certain. The first is an objective standard; the second, a subjective standard." Id. at 586 (citations omitted). Because I do not believe that the prosecution has satisfied the second factor, I would affirm the district court.
With respect to the second factor, the prosecution need not provide direct evidence of the defendant's state of mind since "the defendant's subjective awareness may be inferred from his conduct and surrounding circumstances." Id.; People v. District Court, 198 Colo. 70, 74, 595 P.2d 1045, 1048-49 (Colo. 1979). A judge or a jury may presume an intent to cause the "natural and probable consequences of . . . unlawful voluntary acts, knowingly performed." People v. Mingo, 196 Colo. 315, 318, 584 P.2d 632, 634 (1978) (quoting Keller v. People, 153 Colo. 590, 387 P.2d 421 (1963)).
In Mingo, a struggle ensued between the victim and the defendant's son. From a distance of three feet, the defendant shot the victim in the chest. The defendant admitted shooting the victim and stated that she "still hadn't forgot about him trying to get in the back of my place to try to steal something." Mingo, 196 Colo. at 317, 584 P.2d at 633. With respect to the second factor, the court held:
Like intent, subjective awareness of the probability of consequences is a matter which often must be inferred from defendant's conduct and surrounding circumstances. Here there was no evidence or indication that the shooting was accidental or inadvertent. The jury might properly conclude that defendant was aware of the high probability of death as the result of her admittedly deliberate shooting of the victim at a distance of three feet.
Id. at 318, 584 P.2d at 634. In this case, the evidence indicated that the gun was shot from a distance of more than three feet from the victim, but did not reflect the outer distance from which the gun might have been shot.
In People v. District Court, 198 Colo. 70, 595 P.2d 1045 (Colo. 1979), another case involving the review of a preliminary hearing for second-degree murder, we stated that with respect to the second factor enunciated in Mingo: "the conduct of the accused -- as established by the evidence -- demonstrated that he was angry at the deceased; he threatened to 'smash her face in' and used various epithets in voicing his anger before and during the beating." Id. at 75, 595 P.2d at 1048. Again, the court found that the beating was not accidental or inadvertent and concluded that " ne who repeatedly strikes another for ten to fifteen minutes and inflicts a massi
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