Grissom v. People

• Decision Date: 01 August 2005
• Docket Number: No. 03SC792.,03SC792.
• Citation: 115 P.3d 1280
• Parties: Dante GRISSOM, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

115 P.3d 1280

Dante GRISSOM, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 03SC792.

Supreme Court of Colorado, En Banc.

June 27, 2005.

Rehearing Denied August 1, 2005.^*

COPYRIGHT MATERIAL OMITTED

James Grimaldi, Denver, for Petitioner.

John W. Suthers, Attorney General, John J. Fuerst III, First Assistant Attorney General, Denver, for Respondent.

MULLARKEY, Chief Justice.

I. Introduction

We granted certiorari in this case to determine whether the court of appeals, in an unpublished opinion, erred in ruling that an alleged complicitor is entitled to an instruction on a lesser-included offense only if the principal himself would be entitled to such an instruction.

We hold that a defendant can be convicted of reckless manslaughter as a complicitor if there is some evidence that the principal and the complicitor entered into a common enterprise to commit a crime. Viewed in the light most favorable to the defendant, the evidence supported giving a reckless manslaughter instruction.

II. Facts and Procedural History

Dante Grissom, the defendant in this case, was convicted of vehicular eluding and first-degree murder after deliberation under a theory of complicity. Grissom was sentenced to life in prison.

In 1999, Grissom was present at a dice game between Darrick Love and Shante Cannon. Love eventually won the game, but became angry when Cannon refused to pay him. Grissom later agreed to help Love find Cannon to collect the alleged debt and drove Love to several locations in the next few days in search of Cannon.

Approximately one week after the dice game, Cannon was fatally shot near the motel where he had been staying. Witnesses from the motel testified that they heard shots being fired, and saw a white car leave the scene. The police responded to the crime scene, saw a white car and pursued it. After a car chase, the white car crashed into a fire hydrant and two men fled from the vehicle.

After a search on foot, the police found and arrested Love and Grissom. In the course of their search, the police found two handguns and jewelry in the area, all stained with blood. After testing the clothing Love and Grissom had been wearing for gun shot residue, the police determined that Love had been the shooter, and therefore, was likely the principal. The People decided to try Grissom as a complicitor.

At trial, defense counsel argued that Grissom did not know what Love intended and that Grissom merely intended to help Love recover his gambling debt, ostensibly by means short of murder. Defense counsel also claimed that Grissom was very close to the victim and would not have helped Love kill Cannon. Grissom asked the trial court to instruct the jury on reckless manslaughter as a lesser included offense of first degree murder after deliberation.

The trial court refused to give a reckless manslaughter instruction. It explained that it "logically doesn't make any sense at all" to think the defendant, as a complicitor, knew that the principal intended to commit an unintentional killing. The trial court then instructed the jury on complicity, first degree murder after deliberation, first-degree felony murder, robbery, and vehicular eluding.

The jury convicted Grissom of first-degree murder after deliberation under section 18-3-102(1)(a), C.R.S. (2004), and vehicular eluding under section 18-9-116.5, C.R.S. (2004). He was acquitted of robbery, section 18-4-301(1), C.R.S. (2004) and first-degree felony murder, section 18-3-102(1)(b), C.R.S. (2004).¹

The court of appeals affirmed the trial court's rejection of the reckless manslaughter instruction, but on different grounds. People v. Grissom, No. 00CA1407, slip op. at 10-12, 2003 WL 22113721 (Colo.App.2003)(not selected for official publication). The court of appeals reasoned that for a court to instruct on a lesser included crime, there must be evidence that the principal committed the lesser crime, here, reckless manslaughter. Finding no evidence to support a theory that Love acted recklessly, the court of appeals found that because the principal could not have received a reckless manslaughter instruction, the complicitor could not either.

III. Analysis

A. Complicity for Unintentional Acts

Complicity is not a separate and distinct crime or offense. Rather, it is "a theory by which a defendant becomes accountable for a criminal offense committed by another." People v. Thompson, 655 P.2d 416, 418 (Colo.1982). We have held that, in Colorado, complicitor liability extends to reckless and negligent forms of homicide committed by the principal. Colorado's complicity statute reads:

A person is legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense.

§ 18-1-603, C.R.S.2004.

In People v. Wheeler, 772 P.2d 101 (Colo.1989), we considered whether the defendant's conviction as a complicitor to criminally negligent homicide could stand. The defendant, Laurie Wheeler, was involved in an altercation that took place between her neighbor, Timothy Bothun, and her common law husband, Mitchell Anderson, which resulted in Bothun's death. Anderson was charged as a principal and Wheeler was charged under a theory of complicity liability with second degree murder as well as the lesser included offenses of manslaughter and criminally negligent homicide. The jury convicted Wheeler of criminally negligent homicide.

In concluding that Wheeler's conviction should stand, we explicitly rejected Wheeler's argument that it is logically impossible to aid and abet another's unintentional act. We held that our complicity statute "only requires knowledge by the complicitor that the principal is engaging in, or about to engage in, criminal conduct." Id., at 104. Consequently, we explained that "the jury could find Wheeler guilty of criminally negligent homicide on a theory of complicity if it believed that she knew Anderson, the principal, was about to engage in conduct that was a gross deviation from the standard of care that a reasonable person would exercise." Id. Similarly, here, the jury could have found that Grissom knew that Love was about to engage in reckless conduct, i.e., conduct that "disregard[ed] a substantial and unjustifiable risk that a result will occur or that a circumstance exists." § 18-1-501(8), C.R.S. (2004).

We reaffirmed the Wheeler holding in Bogdanov v. People where we explained that

when a complicitor intentionally assists or encourages another whom the complicitor knows will thereby engage in conduct that grossly deviates from the standard of reasonable care and poses a substantial and unjustifiable risk of death to another, such a mental state should suffice for complicity liability for an underlying crime defined by the culpable mental states of recklessness or negligence.

941 P.2d 247, 251 (Colo.1997), overruled on other grounds by Griego v. People, 19 P.3d 1, 7 (Colo.2001); see also Palmer v. People, 964 P.2d 524, 531 (Colo.1998).

Wheeler is consistent with cases from other states holding that accomplice liability extends to unintentional crimes committed by the principal when the complicitor and the principal are acting in a "common enterprise." See, e.g., State v. Foster, 202 Conn. 520, 522 A.2d 277 (1987)(where A gave B a knife with which to guard the victim after both A and B had assaulted the victim, so that A could find a rape victim who could perhaps identify the victim as the rapist and B killed the victim while A was gone, A could be convicted of criminally negligent homicide as an accomplice); People v. Turner, 125 Mich.App. 8, 336 N.W.2d 217 (1983)(where defendant supplied a gun to the principal without a safety catch and instructed the principal in how to aim the gun and the gun then went off killing a bystander the defendant could be convicted as an accomplice for involuntary manslaughter); State v. McVay, 47 R.I. 292, 132 A. 436 (1926)(defendant who gave instructions for a steamship to proceed knowing that the boilers were not in good condition could be held liable for the many lives lost as a complicitor to manslaughter).

In State v. Fennewald, the Missouri Supreme Court rejected the argument that "`there can be no common design to commit a negligent act resulting in homicide;' and that `to render a person guilty of negligent homicide, the negligent act which caused the death must have been the personal act of the party charged and not the act of another'" 339 S.W.2d 769, 771-74 (Mo.1960). The Fennewald court then found that accomplice liability for manslaughter could apply to the other party where both parties were recklessly engaged in a drag race. See also In re Clark, 2004 WL 1615942 *8 (Ohio App. July 13, 2004) (finding that both drivers in a drag race may be held equally liable because "when two drivers both operate their motor vehicles by traveling at excessive speeds (in the instant case approximately 100 m.p.h.), each driver should be charged with knowledge that such conduct has a high likelihood of resulting in serious injury or death.") People v. Evans, 124 Ill.App.3d 634, 80 Ill.Dec. 100, 105, 464 N.E.2d 1083 (1984)(where one of the participants of a drag race collided with two other cars causing three deaths, the other participant, whose car was not involved in the accident, was a complicitor to three counts of reckless homicide).

In these "common enterprise" cases, where both parties are acting in concert to commit a threshold crime, but the principal ultimately commits a more serious crime than the complicitor initially intended, the complicitor can be held liable for the crime committed by the principal. Like the complicitor and principal involved in the cases cited above, Wheeler and Anderson were engaged in a common enterprise to assault Bothun. Anderson entered Bothun's apartment holding...