People v. Mingo, 28103

• Decision Date: 25 September 1978
• Docket Number: No. 28103,28103
• Citation: 196 Colo. 315,584 P.2d 632
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Betty J. MINGO, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 632

584 P.2d 632

196 Colo. 315

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Betty J. MINGO, Defendant-Appellee.

No. 28103.

Supreme Court of Colorado, En Banc.

Sept. 25, 1978.

Dale Tooley, Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief App. Deputy Dist. Atty., Denver, for plaintiff-appellant.

No appearance for defendant-appellee.

GROVES, Justice.

The People appeal under the provisions of section 16-12-102, C.R.S.1973, and request this court to consider whether the district court misconstrued the meaning of "knowingly" in the second-degree murder statute. The guarantee against double jeopardy precludes any retrial of the defendant, whom the jury acquitted on the charge of manslaughter.

The district court judge refused to instruct the jury as to second-degree murder on the grounds that the evidence was not sufficient to permit the jury to conclude beyond a reasonable doubt that the defendant Knowingly caused the victim's death. We conclude that the court's directed verdict of acquittal on the second-degree murder charge was error.

On October 23, 1977, the defendant walked with her son from the J&B Shine Parlor to the Kapre Lounge. At the door of the Lounge the victim assaulted them with a knife. A struggle ensued between the victim who was 5'8 tall and weighed 146 pounds and the defendant's son who was 6'4 tall and weighed 250 pounds. At a distance of three feet, the defendant shot the victim in the chest with a gun she had been carrying in her brassiere. One witness claimed that the victim previously had purchased drugs from the defendant. The defendant testified that, although she had seen the victim only a few times prior to the day of the shooting, on that day she had found him in the rear of the shine parlor and told him to leave before she called the police. She admitted shooting the victim and stated that she "still hadn't forgot about him trying to get in the back of my place to try to steal something."

At the defendant's request the issue of self-defense was submitted to the jury.

The statute in question is section 18-3-103, C.R.S.1973 (1977 Supp.). Under it, a person commits second-degree murder by causing "the death of a person knowingly, but not after deliberation . . . ." Section 18-1-501, C.R.S.1973 (1977 Supp.) states that all offenses are general intent crimes in which "knowingly" is the element of mental culpability. The statute also states that knowledge with respect to the result of one's conduct means awareness that the "conduct is practically certain to cause the result." Second-degree murder, then, is a general intent crime which entails being aware that one's actions are practically certain to result in another's death.

The General Assembly revised the second-degree murder statute in 1977 by substituting "knowingly" for "intentionally." Previously, the required mental state was malice. ¹ In replacing the malice standard (first with the requirement of intentional conduct, then with that of knowing conduct), the legislature in both instances adopted language suggested in the American Law Institute's Model Penal Code. Both the language of the revised statute and the Code suggest that the prosecutor must establish two factors to prove second-degree murder. The first is that death was more than merely a probable result of defendant's actions; and the second is that the defendant was aware of the circumstances which made death...