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
COATS
CHIEF JUSTICE
¶1
The People petitioned for review of the court of appeals'
judgment vacating Anderson's 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 defendant's conduct and also concluding that no
evidence was offered to prove the defendant's 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 defendant's guilt of attempted extreme indifference
murder, the judgment of the court of appeals vacating the
defendant's conviction is reversed, and the case is
remanded for consideration of any assignments of error
concerning that conviction not yet addressed.
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 defendant's 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
customer's 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 Sheriff's deputy patrolling nearby in a
marked vehicle heard a dispatch airing of the incident and
description of the defendant's 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 vehicle's license plate over the radio.
¶7
The defendant immediately opened the driver's-side door
and, despite the deputy's 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 car's hood and driver's-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 deputy's airing the defendant's 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 defendant's firearm could have
traveled the approximately 200 yards from the location of the
shooting to the intersection with Highway 83, and a bullet
fragment was actually recovered not far from that
intersection.
¶9
The defendant did not testify at trial, but other defense
witnesses, including his friends and daughters, testified
that he had been depressed for the past few years, following
the death of his wife; had lost his job as a result; and was
eventually evicted from his home, forcing his teenage
daughter to move in with his adult daughter. An email sent
from the defendant one week before the shooting indicated he
intended to commit suicide. Through the arguments of counsel,
the defendant ...