 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Fisher7/5/1988
ve head injury on his victim can be held to be aware of the possible fatal consequences of his actions."
More recently, we reviewed a trial court's dismissal of attempted second-degree murder. In People v. District Court, 652 P.2d 582, 586 (Colo. 1982) (District Court II), we analyzed the second factor as follows:
Testimony at the preliminary hearing shows that on the morning preceding the shooting the defendant had stated that he intended to use his gun that night. Moreover, the defendant stated sometime after the shooting that "I went to shoot Toby, and the bullet I shot at Toby, got my Cindy." The circumstances surrounding the shooting, including the statements [the defendant] is alleged to have made, are sufficient to establish probable cause that he was aware of the probable fatal consequences of his actions.
In this case, unlike Mingo and District Court II, there was no evidence presented at the preliminary hearing that the defendant intended to use the gun or deliberately shot the victim. Moreover, the circumstances surrounding the shooting do not reflect that the defendant was aware of the possible fatal consequences of her actions. She admitted that at the request of the defendant, she retrieved the gun from the camper and handed it to the victim. The victim returned the gun to the defendant and the next thing the defendant knew was that the gun made a "loud boom." In my view, the majority extends the decision of Mingo and its progeny too far.
Under the majority's analysis, shooting a pistol by itself is sufficient to establish probable cause for second-degree murder. This obliterates any distinction between the intent required for second-degree murder and that required for reckless manslaughter. Section 18-3-104, 8B C.R.S. (1986); see People v. Padilla, 638 P.2d 15 (Colo. 1981); People v. DelGuidice, 199 Colo. 41, 606 P.2d 840 (1979). In viewing the evidence in the light most favorable to the prosecution, I do not believe the evidence established the defendant was aware that her acts were practically certain to cause the death of the victim. For that reason, probable cause for second-degree murder has not been established. Accordingly, I would affirm the district court's affirmance of the county court.
Page 1 2 3 4 5 6 7 Colorado DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|