What are "premeditation and deliberation" in Colorado murder cases?

Posted by Neil Shouse | Jan 18, 2019 | 0 Comments

Prior to 1974, Colorado's definition of first-degree murder under 18-3-102 C.R.S. included the language that the alleged murderer acted "with premeditated intent to cause death..." Now the language is that the alleged murderer acted "after deliberation and with intent to cause death..." Essentially, they mean the same thing: That first-degree murder in Colorado requires the killer to have thought about killing the victim before actually carrying out the fatal act.

Note that this act of thinking about killing someone can be for a very short period of time, even just a second. But this moment of deliberation and premeditation separates first-degree murder from second degree murder in Colorado, which is killing without premeditation or deliberation. Instead, second degree murder includes intentional and extremely reckless acts which result in an unintended death.

Example: Roger is trying to get a photograph of himself carrying a barbell to post on Instagram. He wants to show the view from his balcony, so he poses at the extreme edge of the railing. While trying to position the selfie stick with one hand, Roger holds the barbell with the other hand and accidentally drops it from his balcony. It lands on a pedestrian below, killing him. Roger did not intend for anyone to die. But Roger should have known that holding a barbell over a balcony with just one hand is dangerous and would probably result in someone dying. Therefore, Harry would face charges of second-degree murder because he had no premeditation and deliberation of killing anyone.

Now, let us change the facts.

Example: Roger wants to kill Harry. Roger waits until he sees Harry walking underneath his balcony and drops a barbell on him, killing him. In this situation, Harry would face first-degree murder charges because his actions were done with the intention of killing Harry.

Other types of first-degree murder in Colorado

Premeditated and deliberate killing is not the only kind of first-degree murder in Colorado. There are four other types that qualify as murder in the first-degree.

  1. Felony murder. This is when a person kills in the commission (or attempted commission) or arson, robbery, burglary, kidnapping, rape, or escape. Even if the person did not mean for anyone to die while committing the underlying crime, he/she could still face first-degree murder charges if a fatality results.
  2. When a person gets another person convicted and executed through perjury.
  3. When a person knowingly engages in conduct which creates a grave risk of death to another and under circumstances demonstrating an attitude of universal malice manifesting extreme indifference to the value of human life.
  4. When a person commits unlawful distribution, dispensation, or sale of a controlled substance to a person under eighteen years on school grounds, and the minor dies from the drugs.

Murder penalties in Colorado

First-degree murder carries harsher punishments than second-degree murder precisely because first-degree murder was done with premeditation and deliberation. The penalty for first-degree murder is life imprisonment or the death penalty. However, note that the death penalty is rarely carried out in Colorado.

Meanwhile, second degree murder carries:

  • 16 to 48 years in a Colorado State Prison (and 5-years mandatory parole), and
  • A fine of $5,000 to $1,000,000.

It is not always clear whether a suspect acted with premeditation and deliberation. Therefore, courts look to such as evidence as the suspect's conduct and words, expert testimony, witnesses, and evidence from the crime scene.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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