First vs. Second Degree Murder in Colorado

What makes a killing first degree murder in Colorado

Colorado lists several ways to commit first degree murder (C.R.S. 18-3-102(1)). The most common is intent plus deliberation: acting after deliberation and with the intent to cause someone’s death.

"After deliberation" has a specific legal meaning. It means acting not only intentionally, but after "the exercise of reflection and judgment concerning the act," and the statute adds that an act committed after deliberation "is never one which has been committed in a hasty or impulsive manner" (C.R.S. 18-3-101(3)).

The statute also covers other situations, including:

• Extreme indifference: knowingly engaging in conduct that creates a grave risk of death to others, under circumstances showing "universal malice," and causing a death
• Death from drugs sold to a minor on school grounds, as described in the statute
• Knowingly causing the death of a child under 12 by a person in a position of trust with respect to the child
• Procuring the conviction and execution of an innocent person through perjury

First degree murder is a class 1 felony (C.R.S. 18-3-102(3)).

What makes it second degree murder

Second degree murder covers two main situations (C.R.S. 18-3-103(1)):

1. Knowingly causing a death. "Knowingly" means being aware that the conduct is practically certain to cause the result. No deliberation is required.
2. Felony murder. A death caused by any participant during certain felonies, including robbery, burglary, kidnapping, felony arson, sexual assault, and escape, or during immediate flight from them.

Felony murder is second degree murder under current Colorado law, not first degree. The statute also gives a narrow affirmative defense for a participant who was not the only participant, did not commit or aid the killing, was not armed with a deadly weapon, did not engage in or intend conduct likely to cause death or serious bodily injury, and had no reasonable ground to believe anyone intended conduct likely to cause death or serious injury (C.R.S. 18-3-103(1.5)).

Voluntary intoxication is not a defense to second degree murder (C.R.S. 18-3-103(2)).

Heat of passion: when second degree murder becomes a class 3 felony

Second degree murder is normally a class 2 felony. It drops to a class 3 felony when the act was performed "upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim," sufficient to excite an irresistible passion in a reasonable person (C.R.S. 18-3-103(3)(b)).

Two limits apply. If there was enough time between the provocation and the killing for "the voice of reason and humanity to be heard," it stays a class 2 felony. And the statute excludes provocation based solely on discovering or learning of the other person’s gender identity, gender expression, or sexual orientation (C.R.S. 18-3-103(3)(c)).

First vs. second degree murder at a glance

*Calculated for offenses on or after July 1, 2020. Second degree murder is sentenced as a crime of violence (C.R.S. 18-3-103(4)), which means prison between the midpoint and twice the maximum of the presumptive range (C.R.S. 18-1.3-406). The class 2 range is 8 to 24 years and the class 3 range is 4 to 12 years (C.R.S. 18-1.3-401). For a class 1 felony charged after July 1, 2020, the maximum is life imprisonment, not death (C.R.S. 18-1.3-401).

Where manslaughter fits

Below second degree murder sit the homicide charges built on recklessness and negligence. Manslaughter means recklessly causing a death, consciously disregarding a substantial and unjustifiable risk (C.R.S. 18-3-104). Criminally negligent homicide means causing a death by failing to perceive that kind of risk (C.R.S. 18-3-105).

The whole ladder, from first degree murder down to criminally negligent homicide, turns on one question: what was in the person’s mind at that moment? That is a question the state has to answer with evidence, not assume.

Where these cases are actually decided: the gray area

The state tends to charge a homicide at the highest level the facts might support, then let the case sort itself out. The label on the complaint is where the case starts, not where it has to end.

• Deliberation has to be proven, not presumed. A charge of first degree murder rests on showing reflection and judgment before the act. Evidence of a sudden argument, a rapidly escalating situation, fear, or panic can speak directly to whether deliberation existed.
• "Knowingly" versus "recklessly" is a real line. The difference between second degree murder and manslaughter is whether the person was practically certain the conduct would cause death, or consciously disregarded a risk. The same set of events can be viewed very differently depending on what the evidence shows.
• Self-defense and justification. Colorado recognizes the use of physical force, including deadly force in some circumstances, in defense of self and others. When the evidence raises it, the prosecution has to disprove it.
• Forensics and the timeline. Autopsy findings, scene reconstruction, video, phone data, and witness accounts often tell a more complicated story than the first police report.

We prepare every case for trial from the first day, because in a homicide case the details found early often shape everything after. That preparation does not guarantee any result. It is what puts the person accused in the strongest position to negotiate, or to try the case when that is the right call. Whether to go to trial is always your decision.

What to do right now

• Do not talk to detectives before talking to a lawyer. In homicide investigations, interviews often happen early, sometimes before anyone is charged. You have the right to remain silent and to have counsel present.
• Do not discuss the events with anyone else, including family, and do not post anything online.
• Get counsel involved early. Evidence such as video and witness memories fades quickly, and early investigation can matter a great deal.

Frequently asked questions