People v. Marcy

Decision Date09 March 1981
Docket NumberNo. 80SA303,80SA303
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ellsworth Fain MARCY, Defendant-Appellant.
CourtColorado Supreme Court

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628 P.2d 69
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Ellsworth Fain MARCY, Defendant-Appellant.
No. 80SA303.
Supreme Court of Colorado, En Banc.
March 9, 1981.
Rehearing Denied May 26, 1981.

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J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Kathleen M. Bowers, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Norman R. Mueller, Chief Appellate Deputy, Denver, for defendant-appellant.

QUINN, Justice.

This appeal challenges the constitutionality of subsection (1)(d) of the first degree murder statute, section 18-3-102, C.R.S. 1973 (1978 Repl. Vol. 8), which is commonly referred to as "extreme indifference murder." Ellsworth Fain Marcy (defendant) asserts that his conviction of first degree murder by extreme indifference under section 18-3-102(1)(d) violates equal protection of the laws, U. S. Const. Amend. XIV; Colo. Const. Art. II, Sec. 25, because that crime is not rationally distinguishable from either second degree murder, section 18-3-103(1)(a), C.R.S.1973 (1978 Repl. Vol. 8), or reckless manslaughter, section 18-3-104(1)(a), C.R.S.1973 (1978 Repl. Vol. 8). He also claims that the statutory definition of extreme indifference murder is unconstitutionally vague in violation of due process of law under the United States and Colorado Constitutions. U. S. Const. Amend. XIV; Colo. Const. Art. II, Sec. 25. In addition to these constitutional issues he contends that the trial court erroneously denied his motion to disqualify the trial judge and improperly admitted into evidence a photograph of the deceased taken during an autopsy. We conclude that section 18-3-102(1)(d) violates equal protection of the laws under Article II, Section 25, of the Colorado Constitution 1 because the crime of

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first degree murder by extreme indifference is not sufficiently distinguishable from second degree murder to warrant the substantial differential in penalty authorized by the statutory scheme. We reverse the conviction and remand for a new trial for that reason. Because of our disposition of this issue, we do not address the other matters raised by this appeal.


The defendant was charged in an indictment filed in the El Paso County District Court with violation of two alternative subsections of the first degree murder statute: subsection 18-3-102(1)(a), murder after deliberation, and subsection 18-3-102(1)(d), murder by extreme indifference. The charges arose out of the shooting death of the defendant's wife at approximately 4:30 p. m. on December 2, 1978, in the family home. The defendant was employed as a nighttime dispatcher for the Fountain Police Department. For some time he had been experiencing depression over financial problems, his wife's affliction with multiple sclerosis, and the loss of parental control over their four teenage children. He spent the afternoon of the fatal shooting at home consuming a large quantity of beer and wine. During this period of time he contemplated suicide. After building a fire in the fireplace of the basement recreation room he went to the bedroom, removed from a drawer his fully loaded revolver, and returned to the family room where he called to his wife and she joined him there. Thereafter the events can be reconstructed only inferentially.

The defendant testified that he was slipping in and out of a trance-like state shortly before the shooting and last remembers pointing the revolver in his wife's general direction while she told him not to cock the hammer. There was some evidence, albeit circumstantial, that the wife may have gained possession of the revolver before the shooting. 2 The defendant telephoned the sheriff's office to report the incident. A sheriff's officer responding to the scene observed Mrs. Marcy moaning in a recliner chair in the recreation room. Efforts to save her failed and she died of massive internal bleeding due to a gunshot wound through the liver. The defendant admitted the shooting to the sheriff's officers but claimed that he did not intend to shoot and may have put too much pressure on the trigger. A specimen of the defendant's blood indicated that his level of blood alcohol was 0.240 percent.

The court instructed the jury and submitted alternative verdicts on first degree murder after deliberation and first degree murder by extreme indifference, as well as the lesser included offenses of second degree murder, manslaughter and criminally negligent homicide. The jury returned a verdict of guilty to first degree murder by extreme indifference. 3 The defendant was sentenced to life imprisonment, section 18-1-105(1), C.R.S.1973 (1978 Repl. Vol. 8), and this appeal followed.

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The defendant argues that there is no rational distinction between first degree murder by extreme indifference as defined in section 18-3-102(1)(d), a class 1 felony punishable by life imprisonment, and second degree murder as defined in section 18-3-103(1)(a), a class 2 felony then punishable by a term of ten to fifty years. 4 The defendant maintains that the lack of any rational basis for distinguishing these offenses, coupled with the significant difference in penalty, renders his conviction of first degree murder by extreme indifference violative of equal protection by subjecting him to a more severe sanction for the identical criminal conduct proscribed by the lesser offense of second degree murder. Before addressing the merits of this claim, we set out some basic propositions of criminal and constitutional law as a predicate for our analysis.

The general purposes of the criminal law are several and include: the adequate definition of the act and mental state of each offense so that fair warning is given to all persons concerning the nature of the proscribed conduct and the penalties therefor, section 18-1-102(1)(a), C.R.S.1973 (1978 Repl. Vol. 8); the differentiation on reasonable grounds of the more serious from the less serious criminal conduct, section 18-1-102(1)(c), C.R.S.1973 (1978 Repl. Vol. 8); and the prescription of penalties that are proportionate to the seriousness of the offenses, section 18-1-102(1)(c), C.R.S.1973 (1978 Repl. Vol. 8). See also Model Penal Code § 1.02(1) and (2) (Tent. Draft No. 2, 1954).

In order to subject a person to criminal liability for his conduct, there generally must be a concurrence of an unlawful act (actus reus ) and a culpable mental state (mens rea ). United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980); Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); Kent v. People, 8 Colo. 563, 9 P. 852 (1886). With a few narrow exceptions, the sanctions of the criminal law are not imposed on the blameless. The minimum requirement for the imposition of criminal liability is that the criminal act be performed voluntarily or consciously. Sections 18-1-501(9) and 18-1-502, C.R.S.1973 (1978 Repl. Vol. 8); Model Penal Code § 2.01, Comment at 119 (Tent. Draft No. 4, 1955). While most crimes require a more blameworthy level of culpability purposely, with specific intent, intentionally, knowingly, recklessly or negligently the matter of establishing the legal constituents of criminal liability is a uniquely legislative function. E. g., Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); People v. Ledman, Colo., 622 P.2d 534 (1981).

It is worth repeating here that "it is not the role of this court to act as overseer of all legislative action and declare statutes unconstitutional merely because we believe they could be better drafted or more fairly applied." People ex rel. Russel v. District Court, 185 Colo. 78, 81, 521 P.2d 1254, 1255 (1974). On the other hand, we cannot disregard our responsibility to the rational and evenhanded application of the law under our state system of criminal justice. Equal protection of the laws under the Fourteenth Amendment to the United States Constitution is not necessarily the limit of that responsibility. See, e. g., Charnes v. Digiacomo, Colo., 612 P.2d 1117 (1980); Denver v. Nielson, 194 Colo. 407, 572 P.2d 484 (1977); People v. Hoinville, 191 Colo. 357, 553 P.2d 777 (1976); People ex rel. Juhan v. District Court, 165 Colo. 253, 439 P.2d 741 (1968); see also, Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977); Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Va.L.Rev. 873 (1976); Note, The New Federalism: Toward a Principled Interpretation

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of the State Constitution, 29 Stan.L.Rev. 297 (1977).

In United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), the United States Supreme Court held that the prosecution and punishment of an accused for criminal conduct (receipt by a convicted felon of a firearm that had traveled in interstate commerce) that was identically defined but differently punished (five year and two year maximums) under separate sections of a statutory scheme did not violate equal protection of the laws under the Fourteenth Amendment to the United States Constitution. 5 In sharp contrast to Batchelder, we have held consistently that equal protection of the laws requires that statutory classifications of crimes be based on differences that are real in fact and reasonably related to the general purposes of criminal legislation. E. g., People v. Bramlett, 194 Colo. 205, 573 P.2d 94 (1977), cert. denied, 435 U.S. 956, 98 S.Ct. 1590, 55 L.Ed.2d 808 (1978); People v. Czajkowski, 193 Colo. 352, 568 P.2d 23 (1977); People v. Calvaresi, 188 Colo. 277, 534 P.2d 316 (1975).

"Equal protection of the law is a guarantee of like treatment of all those who are similarly situated. Classification of persons under the criminal law must be under legislation that is reasonable and not arbitrary. There must be...

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