People v. Anderson , 442 P.3d 76 ( 2019 )

Opinions of the Colorado Supreme Court are available to the
public and can be accessed through the Judicial Branch’s homepage at
http://www.courts.state.co.us. Opinions are also posted on the
Colorado Bar Association’s homepage at http://www.cobar.org.
ADVANCE SHEET HEADNOTE
May 20, 2019
2019 CO 34
No. 16SC442, People v. Anderson—Homicide—Degree of Offenses—Extreme
Indifference—Sufficiency of the Evidence.
The People petitioned for review of the court of appeals’ judgment vacating
Anderson’s conviction for attempted extreme indifference murder. Concluding that the
universal malice element of extreme indifference murder requires for conviction that
more than one person have been endangered by the defendant’s conduct and also
concluding that no evidence was offered to prove the defendant’s shooting endangered
anyone other than the victim, the court of appeals found the evidence insufficient to
support the conviction.
The supreme court holds that because the statutory definition of extreme
indifference murder does not limit conviction of that offense to conduct endangering
more than one person, and because the evidence in this case was sufficient to permit a
jury determination of the defendant’s guilt of attempted extreme indifference murder,
the judgment of the court of appeals vacating the defendant’s conviction is reversed, and
the case is remanded for consideration of any assignments of error concerning that
conviction not yet addressed.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2019 CO 34
Supreme Court Case No. 16SC442
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 12CA889
Petitioner:
The People of the State of Colorado,
v.
Respondent:
Richard Wesley Anderson.
Judgment Reversed
en banc
May 20, 2019
Attorneys for Petitioner:
Philip J. Weiser, Attorney General
Elizabeth Rohrbough, Senior Assistant Attorney General
Denver, Colorado
Attorneys for Respondent:
Megan A. Ring, Public Defender
Elizabeth Porter-Merrill, Deputy Public Defender
Denver, Colorado
CHIEF JUSTICE COATS delivered the Opinion of the Court.
¶1 The People petitioned for review of the court of appeals’ judgment vacating
Anderson’s conviction for attempted extreme indifference murder. See People v. Anderson,
2016 COA 47, __ P.3d __. Concluding that the universal malice element of extreme
indifference murder requires for conviction that more than one person have been
endangered by the defendant’s conduct and also concluding that no evidence was offered
to prove the defendant’s shooting endangered anyone other than the victim, the court
found the evidence insufficient to support the conviction.
¶2 Because the statutory definition of extreme indifference murder does not limit
conviction of that offense to conduct endangering more than one person, and because the
evidence in this case was sufficient to permit a jury determination of the defendant’s guilt
of attempted extreme indifference murder, the judgment of the court of appeals vacating
the defendant’s conviction is reversed, and the case is remanded for consideration of any
assignments of error concerning that conviction not yet addressed.
I.
¶3 Richard Anderson was charged with attempted deliberation murder, attempted
extreme indifference murder, first degree assault against a peace officer, first degree
assault causing serious bodily injury with a deadly weapon, first degree extreme
indifference assault, two counts of menacing, driving while intoxicated, and two counts
of committing a crime of violence. The jury found him not guilty of attempted
deliberation murder, but convicted him on the remaining charges, as well as the
defense-requested, lesser non-included offense of reckless endangerment. The trial court
imposed a sentence of 48 years in the custody of the department of corrections for the
2
defendant’s conviction of attempted extreme indifference murder and a total sentence of
108 years incarceration.
¶4 The prosecution presented testimonial, physical, and documentary evidence from
which the jury could find the following facts. On the day in question, the defendant spent
the night drinking at a bar near the intersection of Highway 86 and Highway 83 in
Douglas County. At some point he appeared agitated and made statements to the effect
that he was suicidal and that he had a gun and ammunition in his car.
¶5 After returning to his car in the parking lot shortly before 2 a.m., the defendant
became embroiled in a dispute with the bar manager and a customer who was apparently
concerned about him, alternately threatening to shoot the manager and then the
customer. After being notified that the police were on the way, the defendant produced
a semiautomatic handgun from under his seat and pointed it at the customer, struggled
with him, and ultimately wrested his gun free of the customer’s grip and drove away
with it, heading north on Highway 83. While the manager was on the phone reporting
the incident, the customer returned to the bar and reported that the defendant was armed
and had pointed the gun at him.
¶6 A Douglas County Sheriff’s deputy patrolling nearby in a marked vehicle heard a
dispatch airing of the incident and description of the defendant’s vehicle. Minutes later,
the deputy saw a vehicle matching that description, and shortly after it turned off
Highway 83, he managed to pull behind the vehicle, which then stopped on its own. The
deputy stopped as well, activated his overhead lights and spotlight, and aired the
vehicle’s license plate over the radio.
3
¶7 The defendant immediately opened the driver’s-side door and, despite the
deputy’s command to remain inside, got out and suddenly began advancing and firing
on the deputy, who used the patrol car door as cover and returned fire, while retreating
to the back of the patrol car. The defendant fired at least thirteen times in rapid
succession, repeatedly striking the patrol car’s hood and driver’s-side door; ultimately
emptied his magazine; and then attempted to reload. The deputy fired twelve rounds,
wounding the defendant in the neck and abdomen, after having himself been shot by the
defendant in the arm. The shooting was over within seconds, with less than a minute
having passed between the deputy’s airing the defendant’s license plate and his
subsequent report of the shooting.
¶8 Although the surveillance video failed to show anyone else in the vicinity during
the shooting, it caught a car passing the defendant on Highway 83 less than a minute
before he turned off the highway and another two cars passing by him less than ten
seconds before turning. A ballistics expert testified that bullets from the defendant’s
firearm could have traveled the approximately 200 yards from the location of the
shooting to the intersection with Highway 83, and a bullet fragment was actually
recovered not far from that intersection.
¶9 The defendant did not testify at trial, but other defense witnesses, including his
friends and daughters, testified that he had been depressed for the past few years,
following the death of his wife; had lost his job as a result; and was eventually evicted
from his home, forcing his teenage daughter to move in with his adult daughter. An
email sent from the defendant one week before the shooting indicated he intended to
4
commit suicide. Through the arguments of counsel, the defendant presented his theory
of defense—that he did not intend to harm or kill the deputy but only wanted to be killed
by the deputy’s return fire.
¶10 Following his convictions, the defendant appealed, challenging, among other
things, the sufficiency of the evidence on the count of attempted extreme indifference
murder and the permissibility of his suffering multiple convictions of first degree assault
for shooting the deputy. The appellate court agreed with the defendant’s assertion that
there was insufficient evidence that “he sought to take human life generally” because he
directed his conduct at a single person and endangered only that person. The court held
that as a matter of law, “universal malice,” as that term is included in the statutory
definition of extreme indifference murder, requires proof of conduct that creates a grave
risk of death to more than one person. Because the court found there to have been no
evidence that anyone other than the deputy was endangered by the defendant’s shooting,
it concluded there was insufficient evidence to reach the jury on the charge of attempted
extreme indifference murder, and it therefore vacated that conviction. The court also
vacated two of the first degree assault convictions, finding the three assault convictions
to represent merely alternate ways of committing the same crime.
¶11 We issued our writ of certiorari on the question whether the court of appeals erred
in concluding that the evidence could not support the jury’s finding of attempted extreme
indifference murder.
5
II.
¶12 As we have recounted in much greater detail elsewhere, the form of homicide in
this jurisdiction now referred to as extreme indifference murder has undergone
considerable evolution, in both case law and legislation, in reaching its current state. See
Montoya v. People, 2017 CO 40, ¶ 11, 394 P.3d 676, 681; Candelaria v. People, 148 P.3d 178,
180–83 (Colo. 2006); People v. Jefferson, 748 P.2d 1223, 1226–30 (Colo. 1988). After striking
down a predecessor version of extreme indifference murder as being indistinguishable
from, but nevertheless punished more severely than, the knowing homicide offense of
second degree murder, see People v. Marcy, 628 P.2d 69, 71–72 (Colo. 1981), this court
upheld the amended statute defining extreme indifference murder against a similar equal
protection challenge, Jefferson, 748 P.2d at 1233. We did so largely as the result of our
understanding of the current statute as, unlike its predecessor, defining a crime of greater
social consequence than second degree murder by proscribing certain killing acts of a
particularly heinous nature, rather than by attempting to carve out a new and
intermediate culpable mental state between knowledge and intent. Id. at 1232; see also
Montoya, ¶ 11, 394 P.3d at 682; Candelaria, 148 P.3d at 181.1
¶13 In Candelaria, we explained our reasoning in Jefferson in greater detail, focusing on
the nature of the killing acts, or actus rei, falling within the statutory definition of extreme
1 The current statute specifies that a person commits first degree murder if: “under
circumstances evidencing an attitude of universal malice manifesting extreme indifference to
the value of human life generally, he knowingly engages in conduct which creates a grave
risk of death to a person, or persons, other than himself, and thereby causes the death of
another.” § 18-3-102(1)(d), C.R.S. (2018) (emphases added to reflect amendments).
6
indifference murder, and ultimately distinguishing them from other acts causing death,
as ones “objectively demonstrating a willingness to take life indiscriminately.”
Candelaria, 148 P.3d at 182. We there reasoned that while a killing act putting at grave
risk a number of individuals not specifically targeted by the defendant, like secreting a
bomb on an airplane to kill a particular individual, could be an act demonstrating such a
willingness to take life indiscriminately, so too would a killing act putting at risk no more
than a single victim, but doing so without knowing or caring who that victim might be.
Id. Relying heavily on the legislature’s decision to add the words, “or persons,” rather
than substituting them for the existing word, “person,” we expressly held that the
amended statute necessarily contemplates killing acts of both types. Id. at 182–83.
¶14 The court of appeals therefore erred in holding that the offense of extreme
indifference murder in this jurisdiction can be committed only by conduct that actually
endangers more than one person. Whatever the intermediate appellate court may have
considered to be the implications of the secondary authority we referenced as partial
support for our ultimate conclusion in Candelaria, see id. at 183 (citing State v. Anderson,
616 P.2d 612, 615 (Wash. 1980), and State v. Pettus, 951 P.2d 284, 288 (Wash. Ct. App.
1998)), there can be no question that we expressly construed the statute as
comprehending “acts putting at risk a single victim, without knowing or caring who that
may be,” as well as those acts “put[ting] at grave risk a number of individuals not
targeted by the defendant,” id. at 182–83. Perhaps more fundamentally, however, our
holding rested on our interpretation of the statute as singling out for special treatment
those acts causing the death of another under circumstances evidencing a willingness to
7
take life indiscriminately—not acts having an actual effect of endangering a number of
lives, or even one life, indiscriminately. While knowingly causing the death of a
particular person by means endangering others may very well evidence a willingness on
the actor’s part to take life indiscriminately, the number of other people endangered by
the conduct in question is clearly not dispositive of the actor’s subjective willingness to
take life indiscriminately, much less of the classification of the killing act itself as one
evidencing a willingness to take life indiscriminately.
¶15 Although in Candelaria we made clear that the conduct proscribed by the statute
could include either acts putting at risk a single person or acts putting at risk more than
one person, in doing so we did not purport to define or in any way circumscribe the
universe of conduct evidencing a willingness to take life indiscriminately. Quite the
contrary, while the statute separately requires conduct causing the death of another, the
feature of extreme indifference murder distinguishing it from, and elevating it in
culpability above, second degree murder is the requirement that the killing conduct be
engaged in under circumstances evidencing an attitude of universal malice manifesting
extreme indifference to the value of human life generally, see § 18-3-102(1)(d), C.R.S.
(2018); Jefferson, 748 P.2d at 1231–32, which we have construed to describe a killing act
objectively demonstrating a willingness to take life indiscriminately, Candelaria, 148 P.3d
at 182. Whether the conduct in question actually endangers more than a single targeted
person, or even whether the actor subjectively intends to or is aware that his conduct may
ultimately take life indiscriminately, the question for the trier of fact is whether the act by
8
which death is knowingly caused, by its very nature or the surrounding circumstances of
its commission, objectively evidences such a willingness.
III.
¶16 For more than four decades we have held there to be sufficient evidence to support
a conviction if “the relevant evidence, both direct and circumstantial, when viewed as a
whole and in the light most favorable to the prosecution, is substantial and sufficient to
support a conclusion by a reasonable mind that the defendant is guilty of the charge
beyond a reasonable doubt.” People v. Bennett, 515 P.2d 466, 469 (Colo. 1973); see also
Jackson v. Virginia, 443 U.S. 307, 313–20 (1979) (recounting history of similar federal
standard); Clark v. People, 232 P.3d 1287, 1292 (Colo. 2010) (rejecting requirement that
under substantial evidence standard the prosecution must “exclude every reasonable
hypotheses other than that of guilt” or disprove the defendant’s theory (quoting Bennett,
515 P.2d at 469)). Had the deputy in this case actually been killed rather than merely
wounded, and had the defendant been charged with extreme indifference murder for
causing his death, the relevant inquiry for purposes of the sufficiency of the evidence to
prove an actus reus satisfying the requirements of extreme indifference murder would
therefore have been whether the defendant’s conduct causing death—rapidly firing
thirteen rounds in the deputy’s direction, in that particular location and at that particular
time of night—could be found by reasonable jurors to be conduct evidencing a
willingness to take life indiscriminately, without knowing or caring whose life, or whose
lives, might be lost as the result of his conduct.
9
¶17 In this case, because the deputy, despite having been shot in the flurry of gunfire
aimed in his direction, did not die, the defendant was instead charged with and convicted
of attempted extreme indifference murder. With regard to the crime of attempted extreme
indifference murder in particular, we recently reaffirmed in Montoya the now well-settled
proposition that attempt liability in this jurisdiction does not require a specific intent, or
conscious objective to accomplish a proscribed result, ¶ 17, 394 P.3d at 683, and instead
can attach to crimes requiring merely knowledge with regard to the conduct,
circumstances, or result defining the crime in question, see People v. Krovarz, 697 P.2d 378,
383 (Colo. 1985), or even to crimes of recklessness, see People v. Thomas, 729 P.2d 972, 976–
77 (Colo. 1986).
¶18 For conviction of attempted extreme indifference murder, as attempt liability has
been held to exist in this jurisdiction, there must be evidence from which a trier of fact
can find that the actor was aware he was engaging in conduct strongly corroborative of
the firmness of his purpose to complete the commission of the crime of extreme
indifference murder, see § 18-2-101(1), C.R.S. (2018) (defining criminal attempt); see also
People v. Lehnert, 163 P.3d 1111, 1113 (Colo. 2007), and commission of the crime of extreme
indifference murder itself could be complete only if the defendant caused the death of
another by knowingly engaging in conduct creating a grave risk of death to a person or
persons other than himself, under circumstances evidencing an attitude of universal
malice manifesting extreme indifference to the value of human life generally, see Montoya,
¶ 17, 394 P.3d at 683–84.
10
¶19 Notwithstanding the theory advanced by the defense that rather than attempting
to kill the deputy, the defendant was hoping to himself be killed by the deputy, there was
an abundance of evidence strongly corroborative of his purpose to knowingly kill. The
court of appeals did not suggest otherwise but merely found that there was insufficient
evidence from which the jury could have reasonably found that the conduct by which the
defendant nearly succeeded in doing so was such as to demonstrate a willingness to take
life indiscriminately, as required to elevate second degree murder to extreme indifference
murder. When the statute defining extreme indifference murder is properly understood
as proscribing killing acts demonstrating, in and of themselves, a willingness to take life
indiscriminately, regardless of the number of lives actually endangered, there was,
however, also sufficient evidence to elevate the crime committed by the defendant from
attempted second degree murder to the crime of attempted extreme indifference murder.
¶20 When all of the relevant evidence, both direct and circumstantial, is viewed as a
whole and in the light most favorable to the prosecution, there was clearly sufficient
evidence at trial from which reasonable jurors could find not only that the defendant
came close to killing the deputy, but also that the defendant’s conduct in doing so, under
the circumstances of its commission, demonstrated a willingness to take life
indiscriminately, either because it objectively evidenced a willingness to kill as many as
thirteen bystanders within range of the defendant’s indiscriminate shooting, or simply
because it evidenced a willingness to kill whoever was pursuing him, in order to draw
return fire and be killed himself. With regard to other bystanders, there was evidence
from which the jury could find that the defendant’s gunfire was not only capable of
11
reaching, but in fact practically reached, as far as Highway 83, the highway from which
the defendant had recently turned and upon which he had only minutes before
necessarily observed other travelers. With regard to his pursuers, however many and
whoever they might have been, if his own theory were credited, the defendant did not
shoot with the purpose of preventing them from capturing him at all, but rather with the
purpose of drawing return fire. Yet, rather than firing into the air or at least over the
heads of any pursuers, the defendant fired directly at the police vehicle pursuing him,
actually striking the driver’s door a number of times and actually wounding the deputy
behind it. Virtually by his own admission, the defendant’s multiple firings evidenced
both an objective and subjective willingness to kill however many officers might be
chasing him, in the hope that one of them would return fire and kill him.
¶21 With regard to lesser included offenses of homicide, we have long expressed a
preference for permitting juries to determine the precise statutory grade of criminal
homicide for which the defendant should be punished. See People v. Shaw, 646 P.2d 375,
379 (Colo. 1982); Crawford v. People, 20 P. 769, 770 (Colo. 1889). Similarly, where there is
clearly sufficient evidence to support a finding that the defendant committed a knowing
homicide satisfying the statutory elements of second degree murder, the question
whether the nature and circumstances of its commission were such as to necessarily
demonstrate a willingness of the actor to take life indiscriminately is peculiarly a matter
for the jury. We have previously indicated, and now reaffirm, that the actus rei capable
of supporting a conviction for extreme indifference murder are not limited by the statute
to those actually endangering more lives than merely that of the victim. In the absence
12
of such a definitional prerequisite, the evidence in this case was sufficient to support a
jury determination that the defendant’s conduct satisfied the statutory definition of the
kind of act causing death.
IV.
¶22 Because the statutory definition of extreme indifference murder does not limit
conviction of that offense to conduct endangering more than one person, and because the
evidence in this case was sufficient to permit a jury determination of the defendant’s guilt
of attempted extreme indifference murder, the judgment of the court of appeals vacating
the defendant’s conviction is reversed, and the case is remanded for consideration of any
assignments of error concerning that conviction not yet addressed.
13