Certiorari to the Colorado Court of Appeals, Court
of Appeals Case No. 12CA889
Attorneys
for Petitioner: Philip J. Weiser, Attorney General, Elizabeth
Rohrbough, Senior Assistant Attorney General, Denver,
Colorado
Attorneys for Respondent: Megan A. Ring, Public Defender,
Elizabeth Porter-Merrill, Deputy Public Defender, Denver,
Colorado
OPINION
CHIEF
JUSTICE COATS
[¶1]
The People petitioned for review of the court of appeals
judgment vacating Andersons conviction for attempted extreme
indifference murder. See People v.
Anderson, 2016 COA 47, __ P.3d __. Concluding that the
universal malice element of extreme indifference murder
requires for conviction that more than one person have been
endangered by the defendants conduct and also concluding
that no evidence was offered to prove the defendants
shooting endangered anyone other than the victim, the court
found the evidence insufficient to support the conviction.
[¶2]
Because the statutory definition of extreme indifference
murder does not limit conviction of that offense to conduct
endangering more than one person, and because the evidence in
this case was sufficient to permit a jury determination of
the defendants guilt of attempted extreme indifference
murder, the judgment of the court of appeals vacating the
defendants conviction is reversed, and the case is remanded
for consideration of any assignments of error concerning that
conviction not yet addressed.
Page 77
I.
[¶3]
Richard Anderson was charged with attempted deliberation
murder, attempted extreme indifference murder, first degree
assault against a peace officer, first degree assault causing
serious bodily injury with a deadly weapon, first degree
extreme indifference assault, two counts of menacing, driving
while intoxicated, and two counts of committing a crime of
violence. The jury found him not guilty of attempted
deliberation murder, but convicted him on the remaining
charges, as well as the defense-requested, lesser
non-included offense of reckless endangerment. The trial
court imposed a sentence of 48 years in the custody of the
department of corrections for the defendants conviction of
attempted extreme indifference murder and a total sentence of
108 years incarceration.
[¶4]
The prosecution presented testimonial, physical, and
documentary evidence from which the jury could find the
following facts. On the day in question, the defendant spent
the night drinking at a bar near the intersection of Highway
86 and Highway 83 in Douglas County. At some point he
appeared agitated and made statements to the effect that he
was suicidal and that he had a gun and ammunition in his car.
[¶5]
After returning to his car in the parking lot shortly before
2 a.m., the defendant became embroiled in a dispute with the
bar manager and a customer who was apparently concerned about
him, alternately threatening to shoot the manager and then
the customer. After being notified that the police were on
the way, the defendant produced a semiautomatic handgun from
under his seat and pointed it at the customer, struggled with
him, and ultimately wrested his gun free of the customers
grip and drove away with it, heading north on Highway 83.
While the manager was on the phone reporting the incident,
the customer returned to the bar and reported that the
defendant was armed and had pointed the gun at him.
[¶6]
A Douglas County Sheriffs deputy patrolling nearby in a
marked vehicle heard a dispatch airing of the incident and
description of the defendants vehicle. Minutes later, the
deputy saw a vehicle matching that description, and shortly
after it turned off Highway 83, he managed to pull behind the
vehicle, which then stopped on its own. The deputy stopped as
well, activated his overhead lights and spotlight, and aired
the vehicles license plate over the radio.
[¶7]
The defendant immediately opened the drivers-side door and,
despite the deputys command to remain inside, got out and
suddenly began advancing and firing on the deputy, who used
the patrol car door as cover and returned fire, while
retreating to the back of the patrol car. The defendant fired
at least thirteen times in rapid succession, repeatedly
striking the patrol cars hood and drivers-side door;
ultimately emptied his magazine; and then attempted to
reload. The deputy fired twelve rounds, wounding the
defendant in the neck and abdomen, after having himself been
shot by the defendant in the arm. The shooting was over
within seconds, with less than a minute having passed between
the deputys airing the defendants license plate and his
subsequent report of the shooting.
[¶8]
Although the surveillance video failed to show anyone else in
the vicinity during the shooting, it caught a car passing the
defendant on Highway 83 less than a minute before he turned
off the highway and another two cars passing by him less than
ten seconds before turning. A ballistics expert testified
that bullets from the defendants firearm could have traveled
the approximately 200 yards from the location of the ...