Under Colorado law, a person commits the crime of murder in the second degree if the person knowingly causes the death of another person. Second-degree murder also comprises felony murder, which is killing someone in the perpetration of certain serious felonies. Second-degree murder is usually a Colorado class 2 felony punishable by up to 48 years in prison and fines of up to $1,000,000.00.

The “knowingly” element distinguishes second-degree murder from the crime of manslaughter, which requires only that you act recklessly.

Fortunately, there are numerous defenses to murder two charges. These include accidental killing, self-defense, defense of others, police misconduct and diminished capacity / insanity (although diminished responsibility is not a defense if it was due to self-induced intoxication).

In addition, your penalty may be reduced if you acted in a sudden heat of passion, caused by a serious and highly provoking act that would excite an irresistible passion in a reasonable person.

To help you better understand 18-3-103 C.R.S., Colorado’s second-degree murder law, our Denver Colorado criminal defense lawyers discuss the following, below:

• 1. How does Colorado define second-degree murder?
  • 1.1. The difference between first- and second-degree murder
  • 1.2. The difference between second-degree murder and manslaughter
• 2. Penalties for murder in the second degree
  • 2.1. Reduced sentence for “heat of passion” murder
• 3. Defenses to second-degree murder charges
  • 3.1. Self-defense / defense of others
  • 3.2. Accidental killing
  • 3.3. Diminished capacity / insanity
  • 3.4. Police misconduct
  • 3.5. Mistaken identification

1. How does Colorado define second-degree murder?

Section 18-3-103 C.R.S. of the Colorado criminal code provides:

A person commits the crime of murder in the second degree if the person knowingly causes the death of another person.

You act “knowingly” with respect to conduct or to a circumstance when:

• You are aware that your conduct is of such nature or that such circumstance exists, or
• You are aware that your conduct is practically certain to cause the result prohibited by a particular law.¹

For purposes of Colorado’s second-degree murder law, you act knowingly when you are aware that death is practically certain to result from your conduct.²

Second-degree murder also comprises felony murder, which is killing someone in the perpetration of arson, robbery, burglary, kidnapping, sexual assault, or escape.

Murder in the second degree is what’s known as a “general intent” crime.³ This means that you can be found guilty even if you didn’t have the specific intent to commit murder.

It is up to the prosecutor to convince the jury that you were aware that your conduct was practically certain to cause death. This awareness can be shown by:

• Your conduct,
• Your statements,
• Crime scene evidence,
• Eyewitness testimony, and
• Expert testimony.⁴

Example: Leo is a 250-pound man, with a history of beating his girlfriends, including one who was briefly in a coma due to his actions. Leo beats his 115-pound girlfriend unconscious but does not call for medical assistance, even though her cheekbone and nose were visibly crushed and her collarbone was broken. Due to the circumstances and Leo’s history, the jury is entitled to infer that Leo was aware his actions were practically certain to result in his girlfriend’s death.

1.1. The difference between first- and second-degree murder

First-degree murder in Colorado requires proof of premeditation and deliberation, along with extreme indifference to human life in general. While a second-degree murder conviction requires proof that you acted intentionally, it does not require premeditation.⁵

And if your actions were narrowly directed toward killing a specific person, it is second-degree murder.

Example: Marco and Ned get into an argument at a crowded bar. Marco taunts Ned by making rude suggestions about his mother. Ned notices that the bartender has been cutting limes and has left his knife a few feet away. After thinking about it for a minute, Ned grabs the knife and stabs Marco repeatedly. Ned is guilty of second-degree murder.

But… let’s say that instead of grabbing the bartender’s knife, Ned goes home and gets his gun. Then he comes back to the bar and starts shooting at Marco from the doorway, even though the bar is crowded. Marco is killed, but so is an innocent bystander. The jury could conclude that Ned’s actions show an extreme indifference to human life generally. Ned would then be guilty of first-degree murder.

1.2. The difference between second-degree murder and manslaughter

Second-degree murder requires an awareness that death is practically certain to result from your actions. If you only act recklessly, the charge should be manslaughter, Colorado 18-3-104 C.R.S.

Manslaughter is also the appropriate charge if you intentionally cause or aid another person to commit suicide.

2. Penalties for murder in the second degree

In Colorado, murder is both an “extraordinary risk” crime and a “crime of violence.” These designations call for a mandatory minimum prison term and a maximum term that is more than double the penalty for other crimes in the same class.

Generally, second-degree murder is classified as a Colorado class 2 felony under 18-3-103 (3)(a) C.R.S.

The punishment for Colorado second-degree murder as a class 2 felony includes, at a minimum, 16 years in a Colorado prison. However, this is the minimum penalty.

Consequences of Colorado second-degree murder can include as much as:

• 16-48 years in a Colorado prison (followed by 5-years mandatory parole), and
• A fine of $5,000-$1,000,000.

2.1. Reduced sentence for “heat of passion” murder

Colorado 18-3-103 (3)(b) C.R.S. provides:

Notwithstanding the provisions of paragraph (a) of this subsection (3), murder in the second degree is a class 3 felony where the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person; but, if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the killing is a class 2 felony.

There is no set time limit as to what amount of “cooling-off time” is enough to allow a person to function rationally after having been seriously provoked. It depends on the emotional state of the offender and, in particular, upon the surrounding circumstances of the case. However, the longer the period between the provocation and the response, the less likely it is that a killing was committed in the heat of passion.⁶

Note that heat of passion is not, strictly speaking, a defense to second-degree murder charges. It is a mitigating factor that reduces the penalty for Colorado second degree murder. The jury will hear evidence of provocation and heat of passion only if it first concludes that a defendant is guilty of murder in the second degree.⁷

3. Defenses to second-degree murder charges

The burden is not on you to prove you are innocent of second-degree murder. It is the job of the prosecutor to prove each and every element of a murder charge beyond a reasonable doubt.

However, a proactive defense can greatly improve your chances of a not guilty verdict or a favorable plea bargain.

While not an exhaustive list, some of the more common defenses to second-degree murder a skilled Colorado criminal defense attorney can present on your behalf include:

3.1. Self-defense / defense of others

In Colorado, you are entitled to use reasonably necessary physical force, even deadly force, to protect yourself or others from imminent serious harm.

The use of deadly physical force is only justified if you reasonably believed a lesser degree of force was inadequate and a specific circumstance, such as one or more of the following, applied:

• You had reasonable ground to believe, and did believe, that you or another person was in imminent danger of being killed or of receiving great bodily injury;
• It appeared that the alleged victim was about to use physical force during the commission of a burglary; or
• The alleged victim was committing, or reasonably appeared to be about to commit, robbery or sexual assault.⁸

You also have the right to use deadly force when someone makes an unlawful entry into your home and you reasonably believe:

1. That such person has committed – or intends to commit — a crime in the dwelling, and
2. That such person might use physical force against you or another occupant.⁹

However, you cannot avail yourself of the use of force defense if:

• With the intent to cause bodily injury or death to another person, you provoked the use of unlawful physical force by that other person; or
• You were the original aggressor, unless:

1. 1. You withdrew from the encounter,
   2. You effectively communicated to the other person your intent to withdraw, and
   3. The other person nevertheless continued or threatened the use of unlawful physical force.¹⁰

Use of physical force is an affirmative defense to murder charges. This means that the burden is on you to prove that your use of force was justified.

3.2. Accidental killing

Accidents happen. Perhaps you were engaged in legal activity, such as hunting, and a gun accidentally went off or were just trying to scare someone you mistakenly thought was a threat.

Since second-degree murder requires an intentional act and knowledge that such conduct will almost certainly result in death, proving that a shooting was accidental should get you a “not guilty” verdict on murder charges – or at least knock the charges down to manslaughter or criminally negligent homicide or assault.

3.3. Diminished capacity / insanity

Diminished capacity is a defense to second-degree murder charges unless it results from your voluntary intoxication.¹¹

Once you plead “not guilty by reason of insanity,” the burden shifts to the prosecution to prove that you were legally capable of understanding the nature and consequences of your actions.

For purposes of Colorado’s law on murder, you are considered insane only 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.

This is not the same as the medical definition of mental illness. Even if you suffer from a serious condition such as schizophrenia or bipolar disorder, you will not be considered legally insane unless you meet one of the conditions set forth above. It is a very strict test.

When presenting a diminished capacity defense, we work closely with medical and forensic experts who can testify to our client’s mental state before, during and after the killing.

3.4. Police misconduct

Police and prosecutors must follow strict rules and procedures in order to prove someone guilty of murder.

If the police violate your rights, we can bring a motion to exclude evidence obtained by:

• A false or coerced confession,
• Planted evidence,
• Faulty search warrant,
• Tainted lab results,
• Break in the chain of custody of evidence,
• Illegal search and seizure in violation of your Fourth Amendment rights,
• Violation of your Miranda rights, or
• Faulty police line-ups.

Often, when such evidence is excluded, the prosecution loses a key element of their case and becomes willing to accept a plea bargain to a lesser charge. And sometimes the case falls apart completely and the charges are dismissed, or the loss of evidence results in a “not guilty” verdict at trial.

3.5. Mistaken identification

Eyewitness testimony is often the most powerful evidence the prosecutor has in a Colorado second-degree murder trial.

But eyewitness testimony is notoriously unreliable. Even the most well-intentioned witnesses can make mistakes due to a wide variety of factors, including:

• Misleading questioning by police and prosecutors,
• The stress and sensory overload of witnessing a crime,
• The tendency of witnesses to focus on a weapon to the exclusion of all else during a crime,
• Cognitive and memory biases,
• Poor lighting, and
• The fading and changing of memories with the passage of time.¹²

Some researchers have even concluded that mistaken identification is the most common cause of wrongful convictions.¹³

Our experienced Colorado criminal defense lawyers take every reasonable precaution to protect our clients against mistaken eyewitness accounts. Such methods can include (without limitation):

• Demanding a live lineup to see whether a witness can pick out the defendant;
• Challenging the way the police handled photospreads and lineups;
• Hiring an “eyewitness identification expert” to explain the inherent problems with eyewitness memory and testimony to the jury;
• Tough cross-examination of witnesses; and
• Hiring private investigators to locate additional witnesses and discover errors in the prosecution’s case.

We can be reached confidentially through the form on his page, or by calling us at our home office:

Colorado Legal Defense Group
4047 Tejon Street
Denver, CO 80211
(303) 222-0330

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