Murder in the First Degree (Colorado § 18-3-102 CRS)

First-degree murder is Colorado’s most serious homicide crime. Most cases involve intentional killings or killings caused by extremely reckless behavior. First-degree murder is punished by life imprisonment.

The following table compares the elements and penalties for first-degree murder, second-degree murder, and manslaughter in Colorado.

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

• 1. Elements
• 2. Penalties
• 3. Defenses
• 4. Murder vs. Manslaughter
• Additional Reading

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1. Elements

For you to be convicted of first-degree murder in Colorado, prosecutors must prove beyond a reasonable doubt that you either:

• Deliberately and intentionally killed someone; or
• Killed someone resulting from risky behavior exhibiting extreme indifference to human life; or
• Perjured or suborned perjury, causing an innocent person to be convicted and executed; or
• Unlawfully distributed or sold a controlled substance to a minor child on school grounds, and the child died from using it; or
• Were in a “position of trust” to a child under 12, and you knowingly caused the child’s death.¹

The majority of first-degree murder cases involve “deliberately” killing someone. However, the length of time required for deliberation is not long: You just need enough time to form the intent to murder someone.²

Example: Kurt provokes Joe, who pulls out his gun and uses it to hit Kurt in the head. 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, 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

First-Degree Murder vs. Second-Degree Murder

Unlike second-degree murder, first-degree murder requires malice, sometimes referred to as

• “extreme indifference,”
• “cold-bloodedness,” or
• “aggravated recklessness.”

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 decides to shoot up the house where two 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 acted with extreme indifference to the lives of anyone who might be inside the house, a jury could find Lee guilty of first degree murder.⁵

Deadly Weapon Usually Required

Generally, using a deadly weapon or instrument in a manner likely to result in death implies that you acted with malice. Fists and feet are not usually classified as deadly weapons since they are not likely to produce death under ordinary circumstances.

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.

Deadly weapons are usually required in CRS 18-3-102 cases.

No Claim of Privilege in Certain 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, CRS 18-3-102 (4) makes an exception in cases where you allegedly are in a position of trust to a child under 12 and knowingly caused their death.

Examples of people in a “position of trust” to a child include:

• parents and people acting in the place of parents such as guardians,
• doctors,
• teachers,
• clergy, or
• child care workers.

Premeditated killing qualifies as first-degree murder in Colorado.

2. Penalties

In Colorado, the sentence for murder in the first degree is life imprisonment. If the victim is an on-duty peace officer, firefighter, or emergency medical services provider, you are typically ineligible for parole.⁹

3. Defenses

Here at Colorado Legal Defense Group, we have extensive experience defending against homicide charges, including first-degree murder. The following six defenses have proven very effective with prosecutors, judges, and juries at getting these charges reduced or dismissed.

1) You Did Not 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; or
• You were a victim of mistaken identification (discussed in detail, immediately below).

2) Mistaken Identification

Research suggests that the most common cause of wrongful convictions is mistaken identity. Even the most well-intentioned and honest 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,
• The tendency to focus on a weapon rather than the person wielding it,
• The commotion and sensory distractions during the commission of a crime,
• Problems with lighting, sight lines, field of vision, etc., and/or
• 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):

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

3) The Killing Was Accidental

If the killing was accidental, you did not have the requisite intent for first-degree murder. There is no way for the D.A. to get inside of your head, so we try to find evidence that shows you never meant to kill anyone and were not acting with malice. Examples of evidence we rely on include:

• Video surveillance,
• Eyewitness testimony, and
• Recorded communications. (such as voicemails and texts)

Self-defense is a defense to murder charges.

4) Self-Defense / Defense of Another

Self-defense is a common defense to homicide charges.¹¹ Likewise, showing that you were acting to defend someone else is strong evidence that you did not kill someone with extreme indifference to the value of human life generally.”¹²

Example: Penny’s boyfriend has in the past beat her young son. After the boyfriend comes home drunk one 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.

“Battered Woman” Syndrome

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

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, we can ask the judge to disregard any evidence found through improper procedures.

This can result in the prosecutor being unable to prove a necessary element of first-degree murder, which could then trigger a charge reduction or dismissal.

Examples of police misconduct include:

• 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.

6) Insanity

If you plead “not guilty by reason of insanity” to a first-degree murder charge, the burden shifts to the prosecution to prove that you were sane. You are considered insane for purposes of a murder charge only if, as a result of a mental disease or defect:

• You did not understand the nature of your act, or
• You could not 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.

The psychiatrists testified that although Holmes had severe mental illness and schizophrenia, it did not rise to the level of legal insanity. As evidence, the prosecution presented the meticulous planning of the act — the choice of time, location, weapons and execution as well as diaries Holmes kept explaining his actions.

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

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Murder Felony is Felony Murder: How the Nevada Supreme Court’s Decision in Nay v. State Reflects the Growing Misconception Surrounding Afterthought Robbery – Nevada Law Journal
• The Stickiness of Felony Murder: The Morality of a Murder Charge – Mississippi Law Journal
• Evil and the Law of Murder – U.C. Davis Law Review
• How Should We Punish Murder – Marquette Law Review
• Rape, Murder, and Formalism: What Happens if We Define Mistake of Law – University of Colorado Law Review

Legal References: