People v. Anderson

          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 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.

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          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 ...