Murder in the First Degree
(Colorado 18-3-102 C.R.S.)

man wielding knife on crowded public street

What is first-degree murder?

First degree murder is the deliberate and premediated killing of another human being with malice aforethought. It differs from second-degree murder in that it requires extreme indifference to human life generally rather than the intent to take the life of a particular person.1

In Colorado you also commit first degree murder when:

  • Someone other than a co-conspirator dies during your commission or attempted commission of arson, robbery, burglary, kidnapping, or sexual assault (“felony murder”);
  • As a result of your perjury or subornation of perjury, an innocent person is convicted and executed;
  • Under circumstances evidencing extreme indifference to the value of human life, you cause the death of another person by knowingly engaging in conduct which creates a grave risk of death;
  • You unlawfully distribute, dispense, or sell a controlled substance to a child under 18 on school grounds and the child dies from using the substance; or
  • While occupying a position of trust with respect to a child under 12, you knowingly causing the death of the child.

Consequences of Colorado first degree murder

In Colorado first degree murder is usually punished by life imprisonment. However, although rarely imposed, the death penalty is still legal in Colorado.

And if the victim is a peace officer, firefighter, or emergency medical services provider engaged in the performance of his or her duties, you cannot legally be granted parole (other than by a governor's pardon).

What should I do if I am charged with first-degree murder?

If you or someone you know if charged with Colorado murder in the first degree, it is imperative you retain an experienced lawyer right away. The best Colorado criminal defense lawyers will protect your rights and start looking immediately for evidence that:

  • You didn't commit the crime;
  • You didn't act with the requisite deliberation and malice;
  • You had an affirmative defense; or
  • The police violated your rights.

To help you better under the Colorado crime of murder in the first degree, our Colorado criminal defense lawyers discuss the following, below:

man pointing gun out car window

1. What is first-degree murder?

Section 18-3-102 (1) C.R.S. of the Colorado criminal code provides:

A person commits the crime of murder in the first degree if:

  • (a) After deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person; or
  • (b) Acting either alone or with one or more persons, he or she commits or attempts to commit arson, robbery, burglary, kidnapping, sexual assault as prohibited by section 18-3-402, sexual assault in the first or second degree as prohibited by section 18-3-402 or 18-3-403 as those sections existed prior to July 1, 2000, or a class 3 felony for sexual assault on a child as provided in section 18-3-405(2), or the crime of escape as provided in section 18-8-208, and, in the course of or in furtherance of the crime that he or she is committing or attempting to commit, or of immediate flight therefrom, the death of a person, other than one of the participants, is caused by anyone; or
  • (c) By perjury or subornation of perjury he procures the conviction and execution of any innocent person; or
  • (d) 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; or
  • (e) He or she commits unlawful distribution, dispensation, or sale of a controlled substance to a person under the age of eighteen years on school grounds as provided in section 18-18-407(2), and the death of such person is caused by the use of such controlled substance; or
  • (f) The person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the victim.

1.1. The legal meaning of “homicide,” “person,” “position of trust,” and “deliberation”

Section 18-3-101 C.R.S. of the Colorado criminal code provides definitions for some of the terms in Colorado's first degree murder statute. 18-3-101 C.R.S. provides:

As used in this part 1, unless the context otherwise requires:

  • (1) “Homicide” means the killing of a person by another.
  • (2) “Person”, when referring to the victim of a homicide, means a human being who had been born and was alive at the time of the homicidal act.
  • (2.5) One in a “position of trust” includes, but is not limited to, any person who is a parent or acting in the place of a parent and charged with any of a parent's rights, duties, or responsibilities concerning a child, including a guardian or someone otherwise responsible for the general supervision of a child's welfare, or a person who is charged with any duty or responsibility for the health, education, welfare, or supervision of a child, including foster care, child care, family care, or institutional care, either independently or through another, no matter how brief, at the time of an unlawful act.
  • (3) The term “after deliberation” means not only intentionally but also that the decision to commit the act has been made after the exercise of reflection and judgment concerning the act. An act committed after deliberation is never one which has been committed in a hasty or impulsive manner.

An act committed after deliberation is never one which has been committed in a hasty or impulsive manner. However, the length of time required for deliberation is not long. All that is required for deliberation is enough time in which to form the intent to murder someone.2

Example: Joe lives in a dangerous neighborhood. One evening he goes out, carrying a gun in his waistband for self-protection. While he is walking down his street, he gets into a heated argument with his neighbor Kurt. Kurt provokes Joe, who pulls out his gun and uses it to hit Kurt in the head, thereby committing an assault in the heat of passion.

However, even as Joe pistol-whips Kurt, the argument escalates. Finally Joe erupts. “I've had enough of your mouth,” he says. He cocks the pistol, aims it at Kurt's heart and pulls the trigger.

Even though the beating itself was not premeditated, and Joe wasn't carrying the gun with malicious intent, Joe may still be guilty of first-degree murder. A jury could find that his words to Kurt, as well as the act of cocking the gun and his aiming for Kurt's heart, show that Joe had sufficient time to deliberate his actions and form the requisite malice.3 

1.2. "Universal malice" / "Extreme indifference"

The difference between first and second degree murder is one of express malice, sometimes referred to as “extreme indifference,” “cold-bloodedness” or “aggravated recklessness.”

Express or universal malice is indicated by conduct showing an extreme lack of care and concern for the value of human life generally. It is considered more blameworthy than other forms of killing and is, therefore, punished more severely.4

Example: Lee's gang gets in a fight with another gang. Later than night, Lee decides to shoot up the house where two of the rival gang members live. So he drives by and sprays the house with from an assault rifle and the mother of the two gang members, who is inside at the time, is killed. Because Lee did not intend to kill the mother, but rather acted with an extreme indifference to the lives of anyone who might be inside the house, a jury could find Lee guilty of first degree murder.5

1.3. Deadly weapon usually required

Generally malice is implied only when a homicide is committed by use of a deadly weapon or instrument in a manner likely to result in death.

Fists and feet are not usually classified as deadly weapons since they are not likely to produce death under ordinary circumstances.
Thus where death results from an attack made with hands and feet only on a healthy adult, the law will not usually find malice, because ordinarily death would not result a beating.

However, where the victim is particularly vulnerable – for an instance a young infant or an enfeebled older person – bare hands can be considered a deadly weapon.

1.4. Colorado's felony murder rule

Usually extreme indifference is an inference for the jury to make based on the evidence. An exception is the so-called “felony murder” rule.

You are considered by law to have acted with extreme indifference to human life if someone dies during the commission or attempted commission of certain felony crimes – even if you did not personally kill the person or you acted without actual malice, deliberation, or premeditation.

The crimes to which Colorado's felony murder rule applies are:

  • arson, 
  • robbery, 
  • burglary, 
  • kidnapping, 
  • sexual assault, and
  • class 3 sexual assault on a child (that is, sexual assault involving force, serious threats, or a pattern of sexual abuse).

Unlike other forms of murder in the first degree, felony murder does not require an intended death. As long as the death is caused by an act committed during the course of, or in furtherance of, a listed felony or the immediate flight from it, it is first degree murder.6 You do not even need to be in the room at the time of the act. Merely acting as a conspirator in the crime is sufficient.7

Example: Mona agrees to be the driver in a bank robbery. The plan is for three other people to go into the bank armed with guns to scare the teller into cooperating. Mona will wait for them around the corner in the getaway car. During the robbery, however, a teller presses a silent alarm that summons the police.

As soon as the three robbers exit the building they see uniformed police officers. One of the robbers shoots at the cops and kills an innocent bystander. Even though Mona had no intention to harm anyone and did not participate in the shooting, she is guilty of felony murder as a co-conspirator to the robbery.8

However, if Mona did not know and had no reason to know about the guns, or she changed her mind about the robbery and left the scene before the shooting, she may have a defense to the felony murder charges (see discussion on felony murder “withdrawal” defense, below).

1.5. No claim of privilege in first-degree murder cases

Ordinarily, communications between you and a spouse or you and your doctor are privileged and cannot be used against you in a legal proceeding.

However, 18-3-102 (4) C.R.S. provides:

The statutory privilege between patient and physician and between husband and wife shall not be available for excluding or refusing testimony in any prosecution for the crime of murder in the first degree as described in paragraph (f) of subsection (1) of this section.

prison seen from outside the walls

2. Colorado first-degree murder penalties

The penalty for Colorado murder in the first degree is life imprisonment or the death penalty. The death penalty is rarely imposed and even more rarely carried out. Only one person has been executed in Colorado since the death penalty was re-legalized in 1976.

 As of summer 2016, there are three people on death row in Colorado. They have been there for periods ranging from approximately 6 -28 years.

3. Defenses to murder in the first degree

The best defense to first-degree murder depends on the facts of your case. It may be that you are entirely innocent of the charges or that your actions were legally justified. Or possibly you did not possess the requisite intent for murder one and are guilty, if at all, of a less serious charge.

An experienced Colorado criminal defense attorney has many ways in which to help you beat the charges or get them reduced. Some of the most common include (but are not limited to):

3.1. You didn't kill anyone

Most deadly weapon deaths do not have witnesses. As a result, the evidence used to convict people is often largely circumstantial. Reasons the evidence against you could be faulty might include:

  • Your fingerprints and/or DNA were at the scene for a legitimate and unrelated reason;
  • The police and/or crime lab made procedural errors processing the crime scene and/or evidence;
  • You were a victim of mistaken identification (discussed in detail, immediately below).

3.2. Mistaken identification

Research suggests that the most common cause of wrongful convictions is mistaken identity.9 Even the most well-intentioned and honest of eyewitness can make mistakes due to a variety of factors, including:

  • The words police and lawyers use during questioning,
  • The stress of witnessing a criminal act,
  • Cognitive and memory biases,
  • Tendency to focus on a weapon rather than the person wielding it,
  • Commotion and sensory distractions during commission of a crime,
  • Problems with lighting, sight lines, field of vision, etc., and
  • The simple passage of time.10

Experienced Colorado criminal defense lawyers have a number of ways to challenge eyewitness accounts. These can include (without limitation):

  • Requiring a live lineup to determine whether the eyewitness can readily distinguish and identify the defendant;
  • Looking for errors in the way police handled photospreads and lineups and challenging the use of the results as evidence;
  • Testimony from an "Eyewitness Identification Expert" who will explain to the jury the inherent problems with eyewitness memory and testimony;
  • Private investigators to turn up additional witnesses or discover contradictions in witness statements; and
  • Vigorous cross-examination of witnesses.

3.3. The killing was accidental

The burden is on the prosecutor to prove each and every element of a Colorado first degree murder charge beyond a reasonable doubt. Unless the charge is based on Colorado's felony murder rule, that means the prosecutor must prove you acted with universal malice / extreme indifference to human life generally.

If the killing was accidental, you didn't have the requisite intent for first-degree murder. Ways your Colorado defense lawyer death can show that did not have the required malice include showing that:

  • You had no criminal intent kill anyone,
  • You weren't acting recklessly, or
  • You were engaged in lawful activity (such as hunting) at the time of the killing.

Example: Nancy keeps a gun in her apartment for self-defense. Late one night, when she is not expecting anyone, there is an incessant knocking at the door. Nancy picks up the gun, cocks it, and answers the door. A man she doesn't know is standing there. Afraid, Nancy points the gun at him to scare him and it accidentally goes off. Because she didn't intend to harm anyone, she is not guilty of first-degree murder.

3.4. Self-defense / defense of another

Self-defense is not an affirmative defense in itself to first degree murder charges. However, it may negate the element of extreme indifference required to sustain them.11

Likewise, showing that you were acting to defend someone else is strong evidence that you did not kill someone with an extreme indifference to the value of human life generally.”12

Example: Penny's boyfriend has, in the past, when he has been drinking heavily, committed acts of violence against Penny's young son. After the boyfriend comes home drunk once night and raises his fists to her son, Penny shoots and kills him. Assuming she acted in a good faith belief that her child was in danger, Penny has not acted with the extreme indifference required for a first degree murder charge. She may still be liable on a lesser charge, however, depending on other factors – such as whether the degree of force was reasonable under the circumstances.

3.4.1. “Battered woman” syndrome

So-called “battered woman” syndrome is a not itself a defense to a murder charge. But it can be considered in the context of self-defense.

To successfully argue battered woman (or battered spouse) syndrome, it is necessary that you were in imminent physical danger at the time of the killing. If, for instance, the victim was asleep at the time of the killing, the defense is unlikely to be successful.13 

3.5. The police violated your rights

In their eagerness to find a suspect and obtain a conviction, the police and prosecutor sometimes cut corners. If your rights to a fair trial are compromised in any way, a top Colorado criminal lawyer can move to have evidence obtained as a result of improper procedures excluded. This can result in the prosecutor being unable to prove a necessary element of first degree murder, or even in the case being thrown out entirely.

Possible violations of your rights include (but are not limited to):

  • Unlawful arrest (such as one made without a warrant or probable cause),
  • Illegal search and seizure (such as one beyond the scope of a search warrant),
  • Coerced confession,
  • Violation of your Miranda rights,
  • Improper chain of custody, or
  • Planted evidence.

3.6. Insanity

Colorado murder law allows the defendant to a murder charge to plead "not guilty by reason of insanity." Once plead, you do not need to prove that you were insane at the time of the alleged crime. Rather, the burden shifts to the prosecution to prove that you were sane.

The definition of insanity in the legal system is different than it would be in a doctor's office. You are only considered insane for purposes of a murder charge if, as a result of a mental disease or defect:

  • You didn't understand the nature of your act, OR
  • You couldn't distinguish between right and wrong, OR
  • You knew what you were doing was wrong, but you were entirely helpless to stop yourself from acting.

An example of the difference can be seen in the case of James Holmes, who was found guilty of first-degree murder for killing a large number of people in a Colorado movie theater.

Although two defense psychiatrists testified that Holmes lacked the mental capacity to tell right from wrong, two court-appointed psychiatrists disagreed. They testified that although Holmes had severe mental illness and schizophrenia, it did not rise to the level of legal insanity. As evidence, the prosecution pointing the meticulous planning of the act -- the choice of time, location, weapons and execution as well as diaries Holmes kept explaining his actions.

3.6.1. Voluntary intoxication is not a defense

You are not entitled to use the insanity defense if the reason for your inability to distinguish right from wrong resulted from voluntary intoxication.14 

3.7. Felony-murder “withdrawal” defense

There is an affirmative defense to Colorado's felony murder rule for secondary participants in a felony who did not take part in the killing in any way. The burden is on you to show that each element of the affirmative defense applies.

You can use this defense if:

  • You had nothing whatsoever to do with the killing, and
  • You did not know and had no reason to suspect the presence of a deadly weapon, or
  • As soon as you discovered there were deadly weapons involved you withdrew from the crime.

Specifically 18-3-102 (2) C.R.S. provides:

It is an affirmative defense to a charge of violating subsection (1)(b) of this section that the defendant:

  • (a) Was not the only participant in the underlying crime; and
  • (b) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and
  • (c) Was not armed with a deadly weapon; and
  • (d) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article, or substance; and
  • (e) Did not engage himself in or intend to engage in and had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury; and
  • (f) Endeavored to disengage himself from the commission of the underlying crime or flight therefrom immediately upon having reasonable grounds to believe that another participant is armed with a deadly weapon, instrument, article, or substance, or intended to engage in conduct likely to result in death or serious bodily injury.

Call us for help…

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If you or someone you know has been charged with Colorado murder, we invite you to contact us for a free consultation. Our Colorado criminal defense attorneys understand how the police and prosecutors investigate, charge and prosecute Colorado homicide cases. We know where to look for errors, affirmative defenses and holes in the prosecution's case.

Don't spend life in prison because you didn't know who to turn to. Use the confidential form on this page to contact us or call us at our centrally located Denver home office. One of our caring Colorado criminal lawyers will get back to you quickly to discuss your case and help you start planning your defense.

Communities our criminal attorneys serve include, without limitation, Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, Thornton, Arvada, Westminster, Centennial and Boulder.

In Denver we can be reached at:

Colorado Legal Defense Group
1400 16th Street
16 Market Square
Denver CO 80202

Legal references:

  1. People by and through Russel v. District Court for Fourth Judicial Dist. (1974) 521 P.2d 1254, 185 Colo. 78.
  2. People v. Bartowsheski (1983) 661 P.2d 235, 242.
  3. Facts based on People v. Sanchez, App.2010, 253 P.3d 1260, modified on denial of rehearing, certiorari denied.
  4. People v. Jefferson Supreme Court of Colorado, en banc (1988) 748 P.2d 1223.
  5. See, e.g., Ryan v. People (1911) 114 P. 306; People v. Rubio (2009) 222 P.3d 355, rehearing denied, certiorari denied, cross-petition for certiorari granted 2010 WL 60120, certiorari denied as improvidently granted.
  6. People v. Renaud (1996) 942 P.2d 1253; People v. Doubleday (2012) 2012 WL 3746184, modified on denial of rehearing, certiorari granted.
  7. People v. Priest (1983) 672 P.2d 539.
  8. See e.g.,People v. Kittrell (1989) 786 P.2d 467, certiorari denied. (Felony-murder statute is not so limited as to allow conviction only if there is a finding that the defendant was committing or attempting to commit the crime at the time he caused the death;  a death caused in the furtherance of a robbery or a death caused in the immediate flight from a robbery falls squarely within the edict of the statute).
  9. See Gary Wells, et al, Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, Law and Human Behavior, Vol. 22, No. 6, 1998.
  10. See, The Problem with Eyewitness Testimony, Barbara Tversky and George Fisher,
    Stanford Journal of Legal Studies; Failures in Criminal Investigation, D. Kim Rossmo, The Police Chief, October 2009.
  11. People v. Gross (2012) 287 P.3d 105, modified on denial of rehearing, on remand.
  12. People v. Lara (2009) 224 P.3d 388, rehearing denied, certiorari denied 2010 WL 427605.
  13. See People v. Yaklich (1991) 833 P.2d 758, certiorari denied (Woman who hired third parties to kill her husband was not entitled to self-defense instruction, despite evidence that she suffered from battered woman syndrome, where woman approached several people about having husband killed, met with killer several times over eight-month period, paid the killers after the murder, and was in her house sleeping at the time of the contract killing;  danger to defendant was not “imminent” as matter of law).
  14. People v. Grant (2007) 174 P.3d 798, rehearing denied, certiorari denied; People v. Zekany (1991) 833 P.2d 774, certiorari denied (Defendant charged with first degree murder, attempted first degree murder, first degree assault, second degree assault, and resisting arrest could not assert defense of insanity attributable to mere voluntary ingestion, as opposed to intoxication from use, of alcohol or any other psychoactive substance). 

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