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People v. Hall4/10/2000
death, a trier of fact can find that repeatedly kicking the head and torso of someone already beaten unconscious can create a substantial risk of death. See id. Similarly, driving a car is not conduct that by its nature necessarily involves a substantial risk of death to others, but after viewing the facts of a particular case closely a court may determine that the defendant created a substantial risk of death. See, e.g., People v. Clary, 950 P.2d 654, 658-59 (Colo. App. 1997) (finding that driving a truck without adequate brakes constituted reckless conduct for vehicular homicide count).
A court cannot generically characterize the actor's conduct (e.g., "driving a truck") in a manner that ignores the specific elements of the conduct that create a risk (e.g., driving a truck with failing brakes on a highway). For example, "installing a heater" carries little risk under normal circumstances. However, the Connecticut Supreme Court held that improperly wiring a 120-volt heater to a 240-volt circuit, failing to use a lock nut to connect the heater to the circuit breaker, and using other faulty installation techniques creates a substantial risk of "catastrophic fire" and death. See State v. Salz, 627 A.2d 862, 865, 869-71 (Conn. 1993). Thus, to determine whether the conduct created a substantial risk of death, a court must inquire beyond the general nature of the defendant's conduct and consider the specific conduct in which the defendant engaged.
As well as being substantial, a risk must be unjustifiable in order for a person's conduct to be reckless. Whether a risk is justifiable is determined by weighing the nature and purpose of the actor's conduct against the risk created by that conduct. See MPC, §2.02, cmt. at 125 (Tentative Draft No. 4 1955); see also David M. Treiman, Recklessness and the Model Penal Code, 9 Am. J. Crim. L. 281, 334 (1981). If a person consciously disregards a substantial risk of death but does so in order to advance an interest that justifies such a risk, the conduct is not reckless. For example, if a surgeon performs an operation on a patient that has a seventy-five percent chance of killing the patient, but the patient will certainly die without the operation, then the conduct is justified and thus not reckless even though the risk is substantial. See MPC, Tentative Draft No. 4, § 2.02, cmt. at 125.
In addition to the separate analyses that are applied to determine whether a risk is both "substantial" and "unjustified," the concept of a "substantial and unjustifiable risk" implies a risk that constitutes a gross deviation from the standard of care that a reasonable law-abiding person would exercise under the circumstances. Both the Model Penal Code and the New York Code, which the General Assembly followed in drafting the Colorado criminal code, expressly define a "substantial and unjustifiable risk" as one that is a gross deviation from the reasonable standard of care. See MPC, §2.02 at 226; N.Y. Penal Law, §15.05. A substantial and unjustifiable risk must constitute a "gross deviation" from the reasonable standard of care in order to justify the criminal sanctions imposed for criminal negligence or reckless conduct, as opposed to the kind of deviation from the reasonable standard of care that results in civil liability for ordinary negligence. See Treiman, supra, at 337.
Whether a risk is substantial and unjustified is a question of fact. See MPC, Tentative Draft No. 4, § 2.02, cmt. at 125; Cf. People v. Thompson, 748 P.2d 793, 794 (Colo. 1988) (finding that question of whether a risk of serious bodily injury was a substantial risk is a question for the jury); People v. Mann, 646 P.2d 352, 362 (Colo. 1982) (stating that question of whether the de
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