People v. Thomas

729 P.2d 972 (Colo. 1986)



In order to complete the offense of reckless manslaughter, it is necessary that the actor cause the death of another person by acting in a manner that involves a substantial and unjustifiable risk of death of that other person and that the actor be conscious of that risk and of its nature when electing to act. Attempted reckless manslaughter requires that the accused have the intent to commit the underlying offense of reckless manslaughter. The intent to commit the underlying offense is the intent to engage in and complete the risk-producing act or conduct. It does not include an intent that death occur even though the underlying crime, reckless manslaughter, has death as an essential element.


A man received a telephone call from his ex-girlfriend informing him that she had been raped in her apartment by a man who lived in an apartment upstairs. He arrived shortly thereafter armed with a pistol. After identifying the rapist, there was an attempt to call the police but the rapist tried to flee the apartment. The ex-boyfriend fired three shots, two of which struck the fleeing man. At trial, he testified that he fired the first shot as a warning when the man was going up the stairs, that he fired a second shot accidentally when the man kicked him while on the stairs, and that the third shot was also a warning shot, fired from the outside of the building near the window of the apartment occupied by the alleged rapist. When the police arrived, they found the him still waiting outside, holding the gun. The ex-boyfriend was convicted of attempted reckless manslaughter and first degree assault as the result of a jury trial in Adams County District Court. On appeal, the he argued, among other things, that attempted reckless manslaughter was not a cognizable crime in Colorado.  On appeal, the court of appeals reversed the conviction for attempted reckless manslaughter, but affirmed the conviction for first degree assault.


Is attempted reckless manslaughter a cognizable crime in Colorado?




The Court held that attempted reckless manslaughter was a cognizable crime in the state of Colorado. The court held that because the underlying crime of extreme indifference murder did not involve unintentional conduct, the attempt to commit that crime did not involve an attempt to commit an unintentional act. That same analysis applied to the crime of reckless manslaughter. The court held that a substantive crime having recklessness with respect to result as an element could provide the basis for criminal attempt liability. The court held that, although difference in the degree of moral culpability of the actor might be perceived between knowingly achieving a proscribed result and recklessly accomplishing it, the difference in potential for future danger inherent in those two culpable mental states was not significant enough to justify a different result under the potential for future danger test.

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