People v. Atkins, 89CA0950
| Citation | 844 P.2d 1196 |
| Decision Date | 04 June 1992 |
| Docket Number | No. 89CA0950,89CA0950 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Rory Franco ATKINS, Defendant-Appellant. . IV |
| Court | Court of Appeals of Colorado |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Cheryl A. Linden, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, Colorado State Public Defender, Kathleen A. Lord, Deputy State Public Defender, Denver, for defendant-appellant.
Opinion by Judge CRISWELL.
Defendant, Rory Franco Atkins, appeals the judgment of conviction entered upon a special jury verdict finding him guilty of murder in the first degree, based upon both extreme indifference murder and murder after deliberation. He contends, among other things, that reversal is required because these two special findings are inconsistent and, in addition, that there was insufficient evidence to support a finding of extreme indifference murder. We agree that the special findings of the jury are logically inconsistent. However, we conclude that, under the circumstances of this case, such inconsistency is not prejudicial to defendant, and since defendant was sentenced only for the perpetration of a single crime, we affirm the judgment of conviction of first degree murder without addressing the question of the sufficiency of the evidence to support the finding of extreme indifference murder.
On the date of the killing, defendant spent much of the day drinking and socializing with friends. Throughout the day, he had in his possession a .22 caliber pistol and a bag of bullets.
In the early evening, defendant went with two friends to drive two teenage girls to their home. Testimony indicated that, during the drive, defendant stated that he did not like individuals who belonged to the "Crips" gang. He said, in fact, that he wanted to shoot a "crab," a derogatory slang term for a Crips gang member.
After taking the two girls to their home, defendant and his two companions noticed two other girls walking along the sidewalk, and they stopped their vehicle to speak with them. A young man was walking a few feet behind the girls; he had a blue bandanna in his back pocket, which in gang culture is a symbol of membership in the Crips gang.
Without warning, the defendant called out to this young man, "Yo, blood, are you a crab?" And, without waiting for a response, he aimed his gun at the victim and shot him in the chest, causing a mortal wound.
Underlying defendant's principal claims of error is a single substantive issue. That issue is whether the present extreme indifference murder statute, § 18-3-102(1)(d), C.R.S. (1986 Repl.Vol. 8B), is applicable to the killing of a single individual, if at the time of the killing the perpetrator possesses the mens rea described in the murder after deliberation statute, § 18-3-102(1)(a), C.R.S. (1986 Repl.Vol. 8B). We conclude that, if the perpetrator possesses the specific intent to kill the individual whose death occurs as a result of his actions, the perpetrator cannot also be convicted under the extreme indifference murder statute.
Under § 18-3-102(1)(a), a person commits first degree murder by killing a person "after deliberation and with the intent to cause the death" of that person or another. To commit first degree murder in this manner, therefore, requires the specific intent to kill a particular individual.
In contrast, § 18-3-102(1)(d), as it has existed since its last amendment in 1981, Colo.Sess.Laws 1981, ch. 212 at 972-973, provides that a person commits murder in the first degree 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. (emphasis indicates 1981 additions)
There are at least two distinguishing features between murder after deliberation and extreme indifference murder.
First, while murder after deliberation requires a specific intent to cause death, the extreme indifference murder statute contains no such element. Rather, the conduct proscribed by § 18-3-102(1)(d) is extreme recklessness, evidencing an indifference to human life generally. People v. Jefferson, 748 P.2d 1223 (Colo.1988). A typical example of such conduct would be the firing of a gun into a crowd of people without any intent to kill any specific individual. See People v. Jefferson, supra.
Second, since the 1981 amendments to § 18-3-102(1)(d), the extreme indifference murder statute has expressly incorporated the concept of "universal malice." This is a concept that was also found to be present in some of Colorado's earliest "extreme indifference" or "depraved heart" statutes. See Longinotti v. People, 46 Colo. 173, 102 P. 165 (1909). Indeed, these 1981 amendments were intended to require the present extreme indifference murder statute to be interpreted in essentially the same manner as were these earlier statutes. People v. Jefferson, supra.
The term "universal malice" is one:
used to describe those acts greatly dangerous to the lives of persons other than the one killed, revealing a depraved mind, which do not include a killing from intentional acts directed at the person slain.
People v. Jefferson, supra, citing C. Torcia, 2 Wharton's Criminal Law § 78 at 366 (14th ed. 1979) (emphasis supplied).
Thus, murder after deliberation is committed only if the perpetrator's malice is directed toward a single, identifiable individual, i.e., its focus is singular in nature. Extreme indifference murder, on the other hand, now requires proof of a malice against human life "generally," i.e., a "universal malice" not directed against a single individual.
Under earlier statutes incorporating the concept of universal malice, a conviction for first degree murder based upon what is now called extreme indifference could not be sustained if the evidence disclosed that the perpetrator intended the death of the victim. Longinotti v. People, supra (). See also People ex rel. Russell v. District Court, 185 Colo. 78, 521 P.2d 1254 (1974) ().
We conclude, therefore, that, if the evidence establishes that a perpetrator possessed the specific intent to cause the death of the person whom he killed, then the death of that individual cannot support a conviction under the extreme indifference murder statute. Longinotti v. People, supra.
This conclusion does not prohibit the People from charging that a defendant committed the crime of first degree murder under both statutes, as alternative theories. It does mean, however, that evidence of the death of a single individual resulting from a defendant's acts cannot support a finding that the crime was committed in both ways. Hence, in those instances in which it may be appropriate to submit both theories to the jury for its determination, such submission must be accompanied by an instruction that the jury may convict of murder under either theory, but not under both.
Here, however, such an instruction was not given. On the contrary, the jury was expressly authorized to find that defendant committed first degree murder both after deliberation and with extreme indifference.
The jurors in this case determined, by their special findings, that defendant, at the time of the killing, possessed the specific intent to kill the victim. At the same time, however, they found that the victim's death resulted under circumstances indicating that defendant displayed "universal" malice, manifesting an indifference to human life "generally," which created a grave risk of death to other "persons." In our view, these findings are logically inconsistent.
In People v. Jefferson, supra, our supreme court, in distinguishing between extreme indifference murder and second degree murder under § 18-3-103, C.R.S. (1986 Repl.Vol. 8B), emphasized that:
extreme indifference murder is committed only if the killing conduct is of a type which is not directed against a particular person at all. (emphasis supplied)
Hence, the determination here that defendant possessed the specific intent to kill the victim necessarily negated the existence of that aggravated recklessness, accompanied by universal malice, that is required to convict of extreme indifference murder. Conversely, the jury's simultaneous determination that the victim's death resulted from defendant's extreme, aggravated recklessness, accompanied by universal malice, necessarily negated the existence of any specific intent to kill a particular person. These findings are, by their nature, logically inconsistent.
People v. Lowe, 660 P.2d 1261 (Colo.1983) does not dictate a different conclusion. The felony murder statute that was the subject of consideration in Lowe, § 18-3-102(1)(b), C.R.S. (1991 Cum.Supp.), requires no particular state of mind; it substitutes participation in a specified felony for the existence of an intent to kill; it requires no malice, either universal or singular. People v. Scheer, 184 Colo. 15, 518 P.2d 833 (1974); People v. Priest, 672 P.2d 539 (Colo.App.1983). Hence, a jury may, with no inconsistency, determine that an actor committed first degree murder during the commission of one of the specified felonies, but with a specific intent to kill, and return dual verdicts determining that he committed...
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