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Montoya v. People

Supreme Court of Colorado, En Banc

May 15, 2017

Angelo Emilio Montoya, Petitioner
v.
The People of the State of Colorado, Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 06CA1875.

          Attorneys for Petitioner: Douglas K. Wilson, Public Defender Elizabeth Griffin, Public Defender Denver, Colorado

          Attorneys for Respondent: Cynthia H. Coffman, Attorney General John T. Lee, Assistant Attorney General Denver, Colorado

          COATS JUSTICE

         ¶1 Montoya petitioned for review of the court of appeals' judgment affirming his convictions for attempted extreme indifference murder, reckless manslaughter, criminally negligent homicide, and accessory to crime. See People v. Montoya, No. 06CA1875 (Colo.App. Sept. 13, 2012). Montoya and his cousin were tried together for the shooting death of a woman at a party, in the course of which they each fired a number of rounds in the direction of other party-goers. In a separate appeal to the court of appeals, Montoya's homicide convictions were initially reversed for failure to properly instruct concerning self-defense against multiple assailants, but upon remand for reconsideration in light of intervening supreme court jurisprudence, all of his convictions were affirmed, not only with regard to the disputed issue of multiple assailants but against a variety of other assignments of error as well. Montoya's subsequent petition for a writ of certiorari was partially granted by this court.

         ¶2 Because there was sufficient evidence to support Montoya's conviction of attempted extreme indifference murder; because Montoya was barred from challenging on appeal the sufficiency of the evidence supporting his conviction for being an accessory to crime, a lesser non-included offense presented to the jury at his request; and because Montoya's simultaneous convictions of reckless manslaughter and accessory to crime neither merged nor required concurrent sentences, the judgment of the court of appeals is affirmed.

         I.

         ¶3 Angelo Montoya and his cousin were charged by grand jury indictment with extreme indifference murder in the shooting death of a young woman at a party.[1] The two were tried together, and although both were acquitted of the charged offense of extreme indifference murder, they were each convicted of attempted extreme indifference murder, reckless manslaughter, criminally negligent homicide, and accessory to crime, all of which had been submitted to the jury as lesser offenses of the charged offense. Montoya was sentenced to concurrent terms of imprisonment of forty-eight years for attempted extreme indifference murder, the maximum sentence in the aggravated range for a class two felony, six years for reckless manslaughter, and three years for criminally negligent homicide, and to a consecutive term of six years for accessory to crime.

         ¶4 Evidence at the trial indicated that on the night of October 23-24, 2004, Montoya and his cousin were attending a large keg party at a house in Wheat Ridge. At some point, after Montoya and his friends were told to leave, a fight erupted, guns were produced, and Montoya and his friends were chased from the house. While running for his cousin's car, Montoya fired a number of rounds from a nine-millimeter Glock semi-automatic handgun. While Montoya drove the car away, his cousin fired more rounds toward the house from the same handgun. The crime scene evidence indicated that ten shots were fired from the Glock, one of which penetrated a bedroom window in the house, striking a young woman, who was pronounced dead later that morning.

         ¶5 As pertinent to the issues before this court, the jury was instructed on the elements of the charged homicide offense of extreme indifference murder and also concerning the principles of complicitor liability for aiding, abetting, advising, or encouraging another in the commission of a crime. With regard to the offense of extreme indifference murder, the jury was further instructed as to the circumstances in which a person would be justified in using force in his own defense, and in that regard it was instructed that it could consider whether the defendant was justifiably acting in self-defense in assessing whether he caused the death of another under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally. Over the objection of defense counsel, the jury was not, however, instructed that self-defense was an affirmative defense to the crime of extreme indifference murder, which the prosecutor would then bear the burden of separately disproving beyond a reasonable doubt.

         ¶6 In addition, the jury was instructed on the elements of the crime of attempting to commit extreme indifference murder and that if it were not satisfied beyond a reasonable doubt that the defendant was guilty of extreme indifference murder, he could nonetheless be convicted of the lesser included offense of attempting to commit extreme indifference murder. The jury was expressly instructed, however, that it could not find the defendant guilty of both the extreme indifference murder and the attempted extreme indifference murder of the same victim. The jury was further instructed on the elements of reckless manslaughter, its lesser included offense of attempted reckless manslaughter, and criminally negligent homicide, as lesser offenses of extreme indifference murder, but the jury was not similarly instructed that it could not find the defendant guilty of these homicide offenses if it found him guilty of either extreme indifference murder or attempted extreme indifference murder. Finally, at the request of the defendant, the jury was instructed on the elements of the offense of accessory to crime, as a lesser non-included offense of the charged offense.

         ¶7 The jury returned guilty verdicts for the offenses of attempted extreme indifference murder, reckless manslaughter, criminally negligent homicide, and accessory to crime with regard to both men, and the court entered judgment of conviction and sentenced the defendants on each of those verdicts. Each defendant appealed separately to the court of appeals. The intermediate appellate court initially ordered that Montoya's conviction for accessory to crime be affirmed but that his homicide convictions be reversed, finding that he was erroneously denied an instruction concerning the right to act in self-defense against multiple assailants. Summarily, following this court's intervening clarification of the right to a multiple-assailant instruction in Riley v. People, 266 P.3d 1089 (Colo. 2011), the People's petition for writ of certiorari was granted, the judgment of the court of appeals was vacated, and the case was remanded for reconsideration. On remand, all of Montoya's convictions and sentences were affirmed against all of his assignments of error.

         ¶8 Following remand and the affirmance of his convictions, we partially granted Montoya's petition for a writ of certiorari, agreeing to consider the viability of separate convictions for being both a complicitor and an accessory to the same crime, as well as restructuring his petition to consider the sufficiency of the evidence to support his convictions for attempted extreme indifference murder, reckless manslaughter, [2] and accessory to crime.

         II.

         ¶9 Under the general rubric of sufficiency, Montoya raises several different but related arguments, challenging the court of appeals' understanding of the elements of extreme indifference murder, as defined by statute; the adequacy, in terms of both quantity and quality, of the evidence actually presented at trial to support his conviction of attempted extreme indifference murder; and the constitutionality of convicting him of attempted extreme indifference murder without requiring the prosecution to disprove his claim of self-defense, in addition to proving beyond a reasonable doubt the elements defining that offense. While it is at least questionable whether all of these arguments are clearly included within the issues structured for review by this court, they have all been fully briefed and argued by the parties, and given their interrelation and the difficulty they apparently continue to pose for the lower courts of the jurisdiction, we consider it important to address each and explain why none undermines the jury verdict finding Montoya guilty of attempted extreme indifference murder.

         ¶10 First, Montoya asserts that the culpable mental state of "knowingly" in the definition of the crime of extreme indifference murder applies not only to the circumstances and nature of his conduct but also to the result of that conduct, such that he could be found guilty of attempting to commit extreme indifference murder only if there was sufficient evidence to prove that he engaged in conduct strongly corroborative of his firmness of purpose to knowingly cause the death of another, with an awareness of both the nature of his conduct and the circumstances under which it must statutorily have been engaged in. Second, he asserts that in light of these requirements, there was insufficient evidence presented at trial to support his conviction of attempted extreme indifference murder. And finally, he asserts that in addition to the statutorily prescribed elements of the offense of attempted extreme indifference murder, the prosecution was also required to prove beyond a reasonable doubt that his attempt to kill the victim was not justified as an act of self-defense, and in this regard he asserts that were the prosecution not relieved of its burden of proof in violation of due process of law, there would not have been sufficient evidence to disprove his assertion of self-defense.

         A.

         ¶11 As we have recounted in much greater detail elsewhere, the form of homicide in this jurisdiction now referred to as extreme indifference murder has undergone considerable evolution, in both case law and legislation, in reaching its current state. See People v. Jefferson, 748 P.2d 1223, 1226-30 (Colo. 1988); see also Candelaria v. People, 148 P.3d 178, 180-83 (Colo. 2006). The statutory offense, which is defined at section 18-3-102(1)(d) of the revised statutes, was struck down by this court in 1981 for being insufficiently distinguishable from, but nevertheless punished more severely than, the knowing homicide offense of second degree murder. People v. Marcy, 628 P.2d 69 (Colo. 1981); see also People v. Curtis, 627 P.2d 734, 736 (Colo. 1981) (applying Marcy and reversing the defendant's extreme indifference murder conviction); People v. Lee, 630 P.2d 583, 587-88 (Colo. 1981) (same); People v. Gurule, 628 P.2d 99, 102 (Colo. 1981) (same). Following amendment by the legislature, we upheld the successor statute, understanding it to create a crime of greater social consequence than second degree murder by proscribing killing acts of a particularly heinous nature, rather than by attempting ...


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