People v. Fisher, No. 98CA0412.

Docket NºNo. 98CA0412.
Citation9 P.3d 1189
Case DateApril 27, 2000
CourtCourt of Appeals of Colorado

9 P.3d 1189

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Michael J. FISHER, Defendant-Appellant

No. 98CA0412.

Colorado Court of Appeals, Div. I.

April 27, 2000.

Rehearing Denied June 1, 2000.

Certiorari Denied October 10, 2000.


9 P.3d 1190
Ken Salazar, Attorney General, Laurie A. Booras, Assistant Attorney General, Denver, Colorado, for Plainitff-Appellee

Linda Perkins Cooke, L.L.C., Linda Perkins Cooke, Boulder, Colorado, for Defendant-Appellant.

Opinion by Judge NIETO.

Defendant, Michael J. Fisher, appeals the judgment of conviction entered on a jury verdict finding him guilty of felony murder, aggravated robbery, and conspiracy to commit aggravated robbery. We affirm.

On September 19, 1996, defendant, his co-defendant, and a woman were using drugs and wanted to obtain more. Lacking the funds to do so, the defendant and co-defendant arranged to steal drugs from the victim. At trial, there was evidence the plan called for the use of a gun to intimidate the victim and then to take her drugs without payment. When the victim refused to turn over the drugs, she was shot and killed by the co-defendant.

The court instructed the jury on the prosecution's theory of complicity:

Instruction 10
A person is guilty of an offense committed by another person if he is a complicitor. To be guilty as a complicitor, the following must be established beyond a reasonable doubt:
1. A crime must have been committed.
2. Another person must have committed all or part of the crime.
9 P.3d 1191
3. The defendant must have had knowledge that the other person intended to commit all or part of the crime.
4. The defendant must have had the intent to promote or facilitate the commission of the crime.
5. The defendant must have aided, abetted, advised or encouraged the other person in the commission or planning of the crime.

I.

Defendant contends that, because it is "legally and logically impossible to be a complicitor to felony murder," the complicity instruction should not have been given. He argues that complicity requires that a defendant have the culpable mental state of the underlying offense, and therefore, since felony murder is a strict liability offense without any culpable mental state, complicity cannot apply to felony murder. We disagree.

Defendant misunderstands the legal theory of complicity. Section 18-1-603, C.R.S.1999, defines complicity as follows: "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."

The complicity statute does not create a substantive offense. Palmer v. People, 964 P.2d 524 (Colo.1998). "Complicity is a theory of law by which an accomplice may be held criminally liable for a crime committed by another person if the accomplice aids, abets, or advises the principal, intending thereby to facilitate the commission of the crime." Bogdanov v. People, 941 P.2d 247, 250 (Colo. 1997).

However, complicity is not a theory of strict liability. It requires that a defendant have the culpable mental state required for the underlying felony and intend that his or her conduct promote or facilitate the commission of the crime by the principal. Thus, the statutory mens rea definitions in § 18-1-501, C.R.S.1999, do not apply to complicity, and "intent," as used in § 18-1-603, C.R.S.1999, retains its common meaning. Bogdanov v. People, supra.

There is no requirement that the principal intend the death of the victim in felony murder; felony murder is a strict liability crime. People v. Meyer, 952 P.2d 774 (Colo.App.1997). While felony murder is a strict liability crime, it requires as one of its elements that the principal commit a predicate felony. People v. Jones, 990 P.2d 1098 (Colo.App.1999). All the predicate felonies in § 18-3-102(1)(b) require proof of a culpable mental state. The underlying felony substitutes for the culpable mental state in felony murder. People v. Priest, 672 P.2d 539 (Colo.App.1983).

If a complicitor has the culpable mental state for the underlying felony, he or she in fact has the same culpable mental state as the principal, thus satisfying the first part of the "intent" requirement of the complicity statute. Because no intent to cause a death is required for felony murder, the second prong of the "intent" requirement can be met if the complicitor's purpose is to promote or facilitate the commission of the underlying felony.

Applying these principles, we conclude that it is neither illogical nor illegal to give an instruction on complicity in a felony murder trial when there is evidence to support a complicity theory. This has long been the law in Colorado. See ...

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22 practice notes
  • People v. Hinojas-Mendoza, Court of Appeals No. 03CA0645 (CO 7/28/2005), Court of Appeals No. 03CA0645.
    • United States
    • Colorado Supreme Court of Colorado
    • July 28, 2005
    ...fairness as to cast serious doubt on the reliability of the conviction. Woertman v. People, 804 P.2d 188 (Colo. 1991); People v. Fisher, 9 P.3d 1189 (Colo. App. 2000). Relevant factors include the strength of the evidence against the defendant, the posture of the defense, and any improper r......
  • People v. Auman, No. 99CA0016.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 26, 2002
    ...felony murder cases recognize the culpability of a defendant who was not directly involved in the killing. See, e.g., People v. Fisher, 9 P.3d 1189 (Colo.App.2000). The supreme court has explained the underlying principle in causation terms: "Each [defendant], therefore, is responsible for ......
  • People v. Doubleday, No. 08CA2433.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 30, 2012
    ...elements of felony murder, therefore, is the commission or attempted commission of one of the enumerated offenses. See People v. Fisher, 9 P.3d 1189, 1191 (Colo.App.2000) (felony murder "requires as one of its elements that the principal commit a predicate felony"); People v. Kittrell, 786 ......
  • People v. Hinojos-Mendoza, No. 03CA0645.
    • United States
    • Colorado Court of Appeals of Colorado
    • July 28, 2005
    ...fairness as to cast serious doubt on the reliability of the conviction. Woertman v. People, 804 P.2d 188 (Colo.1991); People v. Fisher, 9 P.3d 1189 (Colo.App.2000). Page 40 factors include the strength of the evidence against the defendant, the posture of the defense, and any improper remar......
  • Request a trial to view additional results
22 cases
  • People v. Hinojas-Mendoza, Court of Appeals No. 03CA0645 (CO 7/28/2005), Court of Appeals No. 03CA0645.
    • United States
    • Colorado Supreme Court of Colorado
    • July 28, 2005
    ...fairness as to cast serious doubt on the reliability of the conviction. Woertman v. People, 804 P.2d 188 (Colo. 1991); People v. Fisher, 9 P.3d 1189 (Colo. App. 2000). Relevant factors include the strength of the evidence against the defendant, the posture of the defense, and any improper r......
  • People v. Auman, No. 99CA0016.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 26, 2002
    ...felony murder cases recognize the culpability of a defendant who was not directly involved in the killing. See, e.g., People v. Fisher, 9 P.3d 1189 (Colo.App.2000). The supreme court has explained the underlying principle in causation terms: "Each [defendant], therefore, is responsible for ......
  • People v. Doubleday, No. 08CA2433.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 30, 2012
    ...elements of felony murder, therefore, is the commission or attempted commission of one of the enumerated offenses. See People v. Fisher, 9 P.3d 1189, 1191 (Colo.App.2000) (felony murder "requires as one of its elements that the principal commit a predicate felony"); People v. Kittrell, 786 ......
  • People v. Hinojos-Mendoza, No. 03CA0645.
    • United States
    • Colorado Court of Appeals of Colorado
    • July 28, 2005
    ...fairness as to cast serious doubt on the reliability of the conviction. Woertman v. People, 804 P.2d 188 (Colo.1991); People v. Fisher, 9 P.3d 1189 (Colo.App.2000). Page 40 factors include the strength of the evidence against the defendant, the posture of the defense, and any improper remar......
  • Request a trial to view additional results

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