SUPREME COURT, STATE OF COLORADO
No. 99SC105
April 10, 2000
THE PEOPLE OF THE STATE OF COLORADO,
Petitioner,
v.
NATHAN HALL,
Respondent.
Certiorari to the District Court, Eagle County
EN BANC JUDGMENT REVERSED AND CASE REMANDED
F. Michael Goodbee, District Attorney,
Fifth Judicial District
Robert H. Wheeler, Deputy District Attorney
Eagle, Colorado
Attorneys
for Petitioner
Heckman & O’Connor, P.C.
Brett Steven Heckman
Edwards, Colorado
Attorneys for Respondent
JUSTICE BENDER delivered the Opinion of the Court.
I.
INTRODUCTION
We hold that Nathan Hall must stand trial
for the crime of reckless manslaughter. While skiing
on Vail mountain, Hall flew off of a knoll and collided
with Allen Cobb, who was traversing the slope below
Hall. Cobb sustained traumatic brain injuries and died
as a result of the collision. The People charged Hall
with felony reckless manslaughter.
At a preliminary hearing to determine
whether there was probable cause for the felony count,
the county court found that Hall’s conduct "did not
rise to the level of dangerousness" required under Colorado
law to uphold a conviction for manslaughter, and the
court dismissed the charges. On appeal, the district
court affirmed the county court’s decision. The district
court determined that in order for Hall’s conduct to
have been reckless, it must have been "at least more
likely than not" that death would result. Because the
court found that "skiing too fast for the conditions"
is not "likely" to cause a another person’s death, the
court concluded that Hall’s conduct did not constitute
a "substantial and unjustifiable" risk of death. Thus,
the district court affirmed the finding of no probable
cause.
The charge of reckless manslaughter requires
that a person "recklessly cause[] the death of another
person." § 18-3-104(1)(a), 6 C.R.S. (1999). For his
conduct to be reckless, the actor must have consciously
disregarded a substantial and unjustifiable risk that
death could result from his actions. See § 18-1-501(8).
We hold that, for the purpose of determining whether
a person acted recklessly, a particular result does
not have to be more likely than not to occur for the
risk to be substantial and unjustifiable. A risk must
be assessed by reviewing the particular facts of the
individual case and weighing the likelihood of harm
and the degree of harm that would result if it occurs.
Whether an actor consciously disregarded such a risk
may be inferred from circumstances such as the actor’s
knowledge and experience, or from what a similarly situated
reasonable person would have understood about the risk
under the particular circumstances.
We hold that under the particular circumstances
of this case, whether Hall committed the crime of reckless
manslaughter must be determined by the trier of fact.
Viewed in the light most favorable to the prosecution,
Hall’s conduct—skiing straight down a steep and bumpy
slope, back on his skis, arms out to his sides, off-balance,
being thrown from mogul to mogul, out of control for
a considerable distance and period of time, and at such
a high speed that the force of the impact between his
ski and the victim’s head fractured the thickest part
of the victim’s skull—created a substantial and unjustifiable
risk of death to another person. A reasonable person
could infer that the defendant, a former ski racer trained
in skier safety, consciously disregarded that risk.
For the limited purposes of a preliminary hearing, the
prosecution provided sufficient evidence to show probable
cause that the defendant recklessly caused the victim’s
death. Thus, we reverse the district court’s finding
of no probable cause and we remand the case to that
court for trial.
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II.
FACTS AND PROCEDURAL HISTORY
On April 20, 1997, the last day of the
ski season, Hall worked as a ski lift operator on Vail
mountain. When he finished his shift and after the lifts
closed, Hall skied down toward the base of the mountain.
The slopes were not crowded.
On the lower part of a run called "Riva
Ridge," just below where the trail intersects with another
called "North Face Catwalk," Hall was skiing very fast,
ski tips in the air, his weight back on his skis, with
his arms out to his sides to maintain balance. He flew
off of a knoll and saw people below him, but he was
unable to stop or gain control because of the moguls.
Hall then collided with Cobb, who had
been traversing the slope below Hall. The collision
caused major head and brain injuries to Cobb, killing
him. Cobb was taken to Vail Valley Medical Center, where
efforts to resuscitate him failed. Hall’s blood alcohol
level was .009, which is less than the limit for driving
while ability impaired. A test of Hall’s blood for illegal
drugs was negative.
The People charged Hall with manslaughter
(a class 4 felony)(1)
and misdemeanor charges that are not relevant to this
appeal. At the close of the prosecution’s case at the
preliminary hearing, the People requested that, with
respect to the manslaughter count, the court consider
the lesser-included charge of criminally negligent homicide
(a class 5 felony).(2)
The county court held a preliminary hearing
to determine whether there was probable cause to support
the felony charges against Hall. At the preliminary
hearing, the People presented testimony from an eyewitness,
the coroner who conducted the autopsy on Cobb’s body,
an investigator from the District Attorney’s office,
and the detective who investigated the accident for
the Eagle County Sheriff’s department.
Judge Buck Allen, who serves as a judge
for several mountain towns and lives in Vail, testified
that he is an expert skier and familiar with Vail’s
slopes. He was making a final run for the day when he
first noticed Hall on the slope. Allen was on part of
the run called "Lower Riva," which is just below the
"North Face Catwalk." From that part of the slope, Allen
had a direct line of sight to the bottom of the run.
Allen said that he could see other skiers traversing
the slope below him at least from their waists up and
that there were no blind spots on that part of the run.
Hall passed Allen skiing "at a fairly
high rate of speed." Allen estimated that Hall was skiing
about three times as fast as he was. Allen stated that
Hall was "sitting back" on his skis, tips in the air,
with his arms out to his sides in an effort to maintain
his balance. Hall was skiing straight down the fall
line; that is, he was skiing straight down the slope
of the mountain without turning from side-to-side or
traversing the slope. Hall "bounded off the bumps as
he went," and "[t]he terrain was controlling [Hall]"
rather than the other way around. In Allen’s opinion,
Hall was skiing too fast for the skill level he demonstrated,
and Hall was out of control "if you define ‘out of control’
as [not] being able to stop or avoid someone." Although
he watched Hall long enough to note Hall’s unsafe skiing—approximately
two or three seconds—Allen did not see the collision.
Detective McWilliam investigated the
collision for the Eagle County Sheriff’s office. McWilliam
testified that Deputy Mossness said that while Hall
could not remember the collision, Hall admitted that
as he flew off a knoll and looked down, he saw people
below him but could not stop because of the bumps:
Mr. Hall told [the deputy] that he had
been skiing that day, he was an employee of Vail Associates.
That he was coming down the mountain and that he—he
said he flew off of a knoll, looked down and saw some
people below him down the slope, tried to slow down,
and that because of the bumps, he wasn't able to stop.
And he doesn't remember beyond that point. But he was
told that somebody—that he had collided with someone.
McWilliam testified that he interviewed
Jonathan Cherin, an eyewitness to the collision between
Hall and Cobb. Cherin stated that he saw Hall skiing
straight down the slope at a high speed and out of control.
He said that Cobb, who appeared to be an inexperienced
skier, traversed the slope below Hall when Hall hit
some bumps, became airborne, and struck Cobb.
McWilliam testified that Deputy Bishop,
an officer on the scene, told McWilliam about the observations
of other witnesses to the collision. Bruce Yim said
that Hall was skiing too fast, that he was out of control,
and that Hall collided with Cobb as Cobb traversed the
slope. Loic Lemaner, who was skiing below Cobb at the
time of the collision, saw Hall after the collision.
Lemaner said that after the collision, Hall struck Lemaner’s
skis and poles, breaking one of Lemaner’s poles in half.
McWilliam said that the trail was 156
feet across at the point of the collision. Cobb’s body
came to rest slightly to the right of the center of
the slope. Hall came to rest in the center of the trail,
approximately eighty-three feet below Cobb’s body.
Upon cross-examination, McWilliam testified
that in eleven years’ experience in Eagle County, he
was aware of two other collisions between skiers on
Vail mountain that resulted in the death of a skier.
McWilliam said that deaths on Vail mountain from such
collisions are rare.
Sandberg, an investigator for the District
Attorney’s office, testified that he spoke with Mark
Haynes, who had been Hall’s high school ski coach. Haynes
told Sandberg that in the years he coached Hall, Hall
was one of the top two or three skiers on the team and
that Hall was "talented and aggressive." Haynes said
that Hall participated in slalom and giant slalom races
when he was in high school. Haynes taught his skiers
to ski safely and under control.
Dr. Ben Galloway, the coroner who performed
the autopsy on Cobb’s body, testified that Cobb died
from a single and traumatic blow to his head that fractured
his skull and caused severe brain injuries. The coroner
said that the injury was consistent with the impact
from an object, such as a ski, striking Cobb’s head
on a perpendicular plane. In addition to the skull fractures
and brain injuries, Cobb had a contusion or bruise around
his right eye and had an abrasion across his nose. Although
he noted the effects of the failed resuscitation efforts,
Galloway saw no signs of trauma to any other parts of
Cobb’s body, indicating that Cobb’s head was the sole
area of contact.
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Galloway testified that Hall struck Cobb
just below his right ear, in an area of the skull where
the bones are thickest and "it takes more force to fracture
those areas" than other areas of the skull. Galloway
described the injury as an "extensive basal skull fracture"
with "components" or smaller fractures that extended
from the major fracture. The damage to Cobb’s skull
resulted in "contusions or bruises" on Cobb’s brain,
a subdural hemorrhage near the brain stem, and "marked
swelling of the brain due to cerebral edema." This trauma
to Cobb’s brain led to cardiorespiratory failure, the
cause of Cobb’s death. Galloway noted that as a result
of the bleeding from Cobb’s brain, Cobb aspirated blood
into his lungs, "which certainly compromised his ability
to breathe." Galloway found that the severe head injury
was the sole cause of Cobb’s death.
Galloway testified that "it would take
considerable force" to cause such an injury, typically
seen in automobile accident victims who sustain basal
skull fractures after being thrown from moving vehicles:
In my experience in my practice spanning
some 25 years, you most commonly see this type of
fracturing when someone is thrown out of an automobile
or a moving vehicle and sustains a basal skull fracture.
Although Galloway could not estimate Hall’s
speed based on Cobb’s injury, Galloway opined that Hall
must have been travelling at a very high rate of speed
to generate the force necessary to cause Cobb’s skull
fracture and brain injuries:
All I can say is that based on my experience
it took a significant amount of force to cause this,
and if you look at kinetic energy formula . . . speed
is a very important aspect of that energy. Because
the speed is squared, you know, it’s logarithmic,
not arithmetic.
I've seen this injury in other areas,
and other circumstances when we knew how fast an automobile
was going, and we would see this type of injury, it——it
requires a significant amount of speed that generates
the force to cause this injury.
Following the presentation of these witnesses,
the county court considered whether there was sufficient
evidence to find probable cause that Hall recklessly
caused Cobb’s death. The county court reviewed other
Colorado manslaughter cases where courts found substantial
and unjustified risks of death resulting from conduct
such as firing a gun at a person or kicking an unconscious
person in the head. The court found that Hall’s conduct——which
the court characterized as skiing "too fast for the
conditions"——did not involve a substantial and unjustifiable
risk of death and "does not rise to the level of dangerousness
required under the current case law" to sustain a count
of manslaughter. Because Hall’s conduct did not, in
the court’s view, involve a substantial and unjustifiable
risk of death, the court found that the prosecution
failed to provide sufficient proof that Hall acted recklessly.
The county court therefore dismissed the manslaughter
count.
The prosecution appealed the county court’s
decision to the district court pursuant to Crim. P.
5(a)(4)(IV). The district court agreed with the county
court that the prosecution failed to establish probable
cause. The court held that Hall’s conduct did not involve
a substantial risk of death because any risk created
by Hall had a less than fifty percent chance of causing
another’s death. The district court relied on language
from our decisions in People v. Thomas(3)
and People v. DelGuidice(4)
to determine that for a risk of death to be substantial,
"it should be at least more likely than not that death
would result." (Emphasis in original.) The court ruled
that when viewed in the light most favorable to the
People, the facts showed that Hall was "skiing too fast
for the snow conditions." The district court held that
while such conduct may involve a substantial risk of
injury, a person of ordinary prudence and caution would
not infer that skiing too fast for the conditions creates
at least a fifty percent chance of death. Thus, the
court held that the prosecution failed to meet its burden
and affirmed the county court’s finding of no probable
cause.
The People petitioned this court pursuant
to C.A.R. 49, and we granted certiorari to consider
the following:
(1) Whether the district court erred
by establishing "more likely than not" as the
level of substantial risk of death that a defendant
must disregard for a finding of probable cause that
he caused the death of another recklessly; and
(2) Whether the district court reviewed
the wrong criteria and neglected the evidence relating
specifically to this case in affirming the county
court’s dismissal of a manslaughter charge at preliminary
hearing.
III.
DISCUSSION
A.
Appellate Procedure
Before addressing the substantive issues
raised in this appeal, we first consider a matter of
procedure raised by the defendant. Hall argues that
the People did not follow the appropriate procedures
to bring this appeal to this court, claiming that "the
procedure in this case is not authorized by case law
or court rule." We hold otherwise. The rules and statutes
governing preliminary hearings and appeals from those
hearings provide for the form of review sought in this
case.
Rule 5(a)(4)(IV) expressly provides the
prosecution the right to appeal a county court’s finding
of no probable cause to the district court:
(IV) If from the evidence it appears
to the county court that there is not probable cause
to believe that the offense charged has been committed
by the defendant, the county court shall dismiss the
complaint and discharge the defendant. If the prosecutor
believes the court erred in its finding of no probable
cause, the prosecutor may appeal the ruling to the
district court.(5)
(Emphasis added.) Thus, the People have
a right to appeal to the district court.
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Hall argues that in Abbott v. County
Court, we stated that the prosecution’s "sole remedy"
regarding a county court finding of no probable cause
is requesting to file a direct information in the district
court under Crim. P. 5(a)(4)(V), and if this request
is denied then the prosecution may only petition this
court to grant relief under C.A.R. 21. See 886
P.2d 730, 735 (Colo. 1994). In Abbott, we addressed
two issues. First, we considered whether, pursuant to
an extraordinary writ under C.R.C.P. 106, the district
court had authority to review the sufficiency of the
county court’s finding of probable cause, and we concluded
that the district court had no such authority. See
id. at 731-32. Second, we addressed whether,
after the district court improperly considered and reversed
the county court’s finding of probable cause in a Rule
106 proceeding, the People should have appealed that
decision directly to this court pursuant to C.A.R. 21,
or if the People could appeal to the court of appeals.
See id. at 731. We held that the People
could appeal the district court’s decision either to
this court under C.A.R. 21 or to the court of appeals.
See id. at 735.
As part of our analysis of the second
issue in Abbott, we stated:
Similar limitations apply when the
People appeal a finding of no probable cause. When
the preliminary hearing is initially conducted in
county court, the People’s only remedy for an erroneous
finding of no probable cause is to seek permission
to file a direct information in the district court
pursuant to Crim. P. 5(a)(4)(V).
Id. at
735. Hall relies on these two sentences for his contention
that the People have no authority to bring the appeal
in this case. However, because these sentences from
Abbott are obiter dictum and because they incorrectly
stated the appellate procedures for preliminary hearings,
we disagree.
The two sentences quoted above were not
necessary to our resolution of the procedural question
presented in Abbott and thus do not serve as
precedent. In Abbott, the People appealed a ruling
by the district court in a Rule 106 proceeding; they
did not appeal a finding of no probable cause by a county
court. Hence, our discussion of the People’s right to
appeal a finding of no probable cause under Crim. P.
5 was extraneous to our resolution of the issue raised
in Abbott and these sentences are obiter dictum.
Additionally, the two sentences quoted
from Abbott incorrectly state the appellate procedures
for preliminary hearings. In Abbott, we relied
on the 1984 version of Crim. P. 5 for the assertion
that the People’s "sole remedy" from a county court’s
finding of no probable cause is to appeal under C.A.R.
21. See id. at 735 n. 10 (quoting Crim.
P. 5 from "7B C.R.S. (1984)"). However, we amended the
rule effective in 1989 to provide the prosecution with
a right to appeal a county court’s finding of no probable
cause to the district court. See 7B C.R.S. at
49 (1984) (1989 Supp.). The county court conducted the
preliminary hearing in Abbott in March 1992.
Thus, we should have applied the 1989 version of the
rule that clearly provides the prosecution a right to
appeal a finding of no probable cause to the district
court.
Although we expressly disavow those two
sentences because they are erroneous dictum, we note
that the central holdings in Abbott are unaffected.
Having established that the prosecution
has a right to appeal to the district court from a county
court’s finding of no probable cause, we turn to the
People’s right to appeal the district court’s decision
affirming that finding. The county court’s dismissal
of the only felony charge against Hall is a final judgment
for purposes of appellate jurisdiction. See People
v. Gallegos, 946 P.2d 946, 950 (Colo. 1997) (discussing
the finality of criminal judgments). Because Crim. P.
5(a)(4)(IV) expressly provides the People a right to
appeal the county court’s finding of no probable cause
to the district court and because the finding is a final
judgment for purposes of appellate jurisdiction, section
13-6-310 governs the district court’s review of an appeal
from the county court. Section 13-6-310(4) provides
that the district court’s review of the county court’s
decision may be appealed to this court by writ of certiorari:
Further appeal to the supreme court
from a determination of the district court in a matter
appealed to such court from the county court may
be made only upon writ of certiorari issued in
the discretion of supreme court pursuant to such rules
as that court may promulgate. (Emphasis added.)
Thus, the prosecution has a right to
appeal the county court’s probable cause decision to
the district court and to seek certiorari review in
this court of the district court’s decision. Accordingly,
we hold that the People brought this appeal pursuant
to authorized procedure.
B.
Manslaughter and Recklessness
Having established that the People followed
proper procedures in bringing this appeal, we discuss
the substantive issues presented in this case. To provide
background for our explanation of recklessness, we review
the history of culpable mental states under our criminal
code. We then examine the separate elements of recklessness,
which require that an actor consciously disregard a
substantial and unjustifiable risk that a result will
occur or that a circumstance exists. See § 18-1-501(8).
Based on this review, we hold that to determine whether
a risk is substantial and unjustified, a trier of fact
must weigh the likelihood and potential magnitude of
harm presented by the conduct and consider whether the
conduct constitutes a gross deviation from the reasonable
standard of care. Whether a person consciously disregards
such a risk may be inferred from either the actor’s
subjective knowledge of the risk or from what a reasonable
person with the actor’s knowledge and experience would
have been aware of in the particular situation.
With the exception of strict liability
crimes, a person is not subject to criminal sanctions
unless the prosecution establishes that, in addition
to committing a proscribed act, the person acted with
the culpable mental state required for the particular
crime. See § 40-1-602, cmt., 3 C.R.S. (1971 Supp.)
(discussing principles of criminal culpability). In
other words, except for strict liability crimes, our
criminal justice system will not punish a defendant
for her actions unless she acted with a state of mind
that warrants punishment.
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In the past, courts and legislatures
developed a variety of definitions for different mental
states, creating confusion about what the prosecution
had to prove in a criminal case. See Model Penal
Code § 2.02, cmt. at 230 (1985) [hereinafter MPC]. Depending
on the specific crime charged and the jurisdiction,
juries might be instructed to determine whether the
defendant acted with "‘felonious intent,’ ‘criminal
intent,’ ‘malice aforethought,’ ‘guilty knowledge,’
‘fraudulent intent,’ ‘willfulness,’ ‘scienter,’ . . .
or ‘mens rea,’ to signify an evil purpose or mental
culpability." Morissette v. United States, 342
U.S. 246, 252 (1952).
In addition to the variety of mental
states required for different crimes, single crimes
often referred to a number of different mental states,
further complicating an analysis of culpability requirements.
For example, Colorado’s statute, "Driving under influence——death,"
stated:
Any person while under the influence
of intoxicating liquor or of any exhilarating or stupefying
drug, who causes the death of another by operating
or driving any automobile, motorcycle, or other motor
vehicle in a reckless, negligent, or
careless manner, or with a wanton or reckless
disregard of human life or safety, shall be deemed
guilty of a felony and upon conviction shall be punished
by imprisonment in the state penitentiary for a period
of not less than one year nor more than fourteen years.
§ 40-2-10, 3 C.R.S. (1963) (emphasis added).
In order to eliminate the confusion created by this
variety of ill-defined mental states, the Model Penal
Code suggested that criminal codes articulate and define
the specific culpable mental states that will suffice
for criminal liability. See MPC § 2.02, cmt.
at 229.
As part of a complete revision of Colorado’s
criminal code in 1971, the General Assembly followed
the Model Penal Code’s suggestion and adopted a provision
specifically defining four culpable mental states: "intentionally,"(6)
"knowingly,"(7)
"recklessly,"(8)
and "criminal negligence."(9)
See ch. 121, § 40-1-601, 1971 Colo. Sess. Laws
388, 403-04.(10)
The legislature adopted this section to define clearly
the different levels of culpability that could be required
for the commission of various offenses. See §
40-1-602, cmt., 3 C.R.S. (1971 Supp.). The definitions
have been amended since their adoption in 1971, and
section 18-1-501 currently provides detailed explanations
of what each level of culpability requires.
To be convicted of any crime other than
a strict liability crime, a defendant must act with
one of these four culpable mental states, depending
on the statutory definition of each particular crime.
If the elements for the required mental state are not
satisfied, the defendant cannot be convicted of the
crime charged.
To demonstrate that Hall committed the
crime of manslaughter, the prosecution must provide
sufficient evidence to show that the defendant’s conduct
was reckless. § 18-3-104(1)(a).(11)
Thus, we focus on describing the mental state of recklessness
and determining whether Hall’s conduct meets that definition.
As Colorado’s criminal code defines recklessness,
"A person acts recklessly when he consciously disregards
a substantial and unjustifiable risk that a result will
occur or a that circumstance exists." § 18-1-501(8).
Thus, in the case of manslaughter, the prosecution must
show that the defendant’s conduct caused the death of
another and that the defendant:
1) consciously disregarded
2) a substantial and
3) unjustifiable risk that he
would
4) cause the death of another.
We examine these elements in detail.
Substantial and
Unjustifiable Risk
To show that a person acted
recklessly, the prosecution must establish that the
person’s conduct created a "substantial and unjustifiable"
risk. The district court construed some of our earlier
cases as requiring that the risk of death be "at least
more likely than not" to constitute a substantial and
unjustifiable risk of death. In interpreting our cases,
the court relied on an erroneous definition of a "substantial
and unjustifiable" risk. Whether a risk is substantial
must be determined by assessing both the likelihood
that harm will occur and the magnitude of the harm should
it occur. We hold that whether a risk is unjustifiable
must be determined by assessing the nature and purpose
of the actor’s conduct relative to how substantial the
risk is. Finally, in order for conduct to be reckless,
the risk must be of such a nature that its disregard
constitutes a gross deviation from the standard of care
that a reasonable person would exercise.
A risk does not have to be "more likely
than not to occur" or "probable" in order to be substantial.
A risk may be substantial even if the chance that the
harm will occur is well below fifty percent. See
People v. Deskins, 927 P.2d 368, 373 (Colo. 1996)
(finding reckless conduct where defendant disregarded
risk that "any of the cars on the road" on a particular
night might contain children) (emphasis omitted); see
also Wayne R. LaFave & Austin W. Scott, Jr., Substantive
Criminal Law § 3.7(f) at 336 (1986). Some risks
may be substantial even if they carry a low degree of
probability because the magnitude of the harm is potentially
great. For example, if a person holds a revolver with
a single bullet in one of the chambers, points the gun
at another’s head and pulls the trigger, then the risk
of death is substantial even though the odds that death
will result are no better than one in six. As one court
remarked,
If the potential of a risk is death,
that risk is always serious. Therefore, only some
likelihood that death will occur might create
for most people a "substantial and unjustifiable"
risk. . . .
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State v.
Standiford, 769 P.2d 254, 263 n.9 (Utah 1988) (emphasis
added). Conversely, a relatively high probability that
a very minor harm will occur probably does not involve
a "substantial" risk. Thus, in order to determine whether
a risk is substantial, the court must consider both
the likelihood that harm will occur and the magnitude
of potential harm, mindful that a risk may be "substantial"
even if the odds of the harm occurring are lower than
fifty percent.
Whether a risk is substantial is a matter
of fact that will depend on the specific circumstances
of each case. Some conduct almost always carries a substantial
risk of death, such as engaging another person in a
fight with a deadly weapon or firing a gun at another.
See, e.g., Case v. People, 774 P.2d 866,
870 (Colo. 1989) (upholding manslaughter conviction
where defendant stabbed victim three times during a
fight); Thomas, 729 P.2d at 977 (affirming conviction
of attempted reckless manslaughter where defendant fired
three shots at victim). In such instances, the substantiality
of the risk may be evident from the nature of the defendant’s
conduct and the court will not have to examine the specific
facts in detail.
Other conduct requires a greater inquiry
into the facts of the case to determine whether it creates
a substantial risk of death. In Moore v. People,
we affirmed a manslaughter conviction where the defendant
kicked the victim to death. 925 P.2d 264, 269 (Colo.
1996). While "kicking another" may not necessarily involve
a substantial risk of death, a trier of fact can find
that repeatedly kicking the head and torso of someone
already beaten unconscious can create a substantial
risk of death. See id. Similarly, driving
a car is not conduct that by its nature necessarily
involves a substantial risk of death to others, but
after viewing the facts of a particular case closely
a court may determine that the defendant created a substantial
risk of death. See, e.g., People v. Clary,
950 P.2d 654, 658-59 (Colo. App. 1997) (finding that
driving a truck without adequate brakes constituted
reckless conduct for vehicular homicide count).
A court cannot generically characterize
the actor’s conduct (e.g., "driving a truck") in a manner
that ignores the specific elements of the conduct that
create a risk (e.g., driving a truck with failing brakes
on a highway). For example, "installing a heater" carries
little risk under normal circumstances. However, the
Connecticut Supreme Court held that improperly wiring
a 120-volt heater to a 240-volt circuit, failing to
use a lock nut to connect the heater to the circuit
breaker, and using other faulty installation techniques
creates a substantial risk of "catastrophic fire" and
death. See State v. Salz, 627 A.2d 862,
865, 869-71 (Conn. 1993). Thus, to determine whether
the conduct created a substantial risk of death, a court
must inquire beyond the general nature of the defendant’s
conduct and consider the specific conduct in which the
defendant engaged.
As well as being substantial, a risk
must be unjustifiable in order for a person’s conduct
to be reckless. Whether a risk is justifiable is determined
by weighing the nature and purpose of the actor’s conduct
against the risk created by that conduct. See
MPC, §2.02, cmt. at 125 (Tentative Draft No. 4 1955);
see also David M. Treiman, Recklessness and
the Model Penal Code, 9 Am. J. Crim. L. 281, 334
(1981). If a person consciously disregards a substantial
risk of death but does so in order to advance an interest
that justifies such a risk, the conduct is not reckless.
For example, if a surgeon performs an operation on a
patient that has a seventy-five percent chance of killing
the patient, but the patient will certainly die without
the operation, then the conduct is justified and thus
not reckless even though the risk is substantial. See
MPC, Tentative Draft No. 4, § 2.02, cmt. at 125.
In addition to the separate analyses
that are applied to determine whether a risk is both
"substantial" and "unjustified," the concept of a "substantial
and unjustifiable risk" implies a risk that constitutes
a gross deviation from the standard of care that a reasonable
law-abiding person would exercise under the circumstances.
Both the Model Penal Code and the New York Code, which
the General Assembly followed in drafting the Colorado
criminal code, expressly define a "substantial and unjustifiable
risk" as one that is a gross deviation from the reasonable
standard of care. See MPC, §2.02 at 226; N.Y.
Penal Law, §15.05. A substantial and unjustifiable risk
must constitute a "gross deviation" from the reasonable
standard of care in order to justify the criminal sanctions
imposed for criminal negligence or reckless conduct,
as opposed to the kind of deviation from the reasonable
standard of care that results in civil liability for
ordinary negligence. See Treiman, supra,
at 337.(12)
Whether a risk is substantial and unjustified
is a question of fact. See MPC, Tentative Draft
No. 4, § 2.02, cmt. at 125; Cf. People v.
Thompson, 748 P.2d 793, 794 (Colo. 1988) (finding
that question of whether a risk of serious bodily injury
was a substantial risk is a question for the jury);
People v. Mann, 646 P.2d 352, 362 (Colo. 1982)
(stating that question of whether the defendant’s conduct
was a "gross deviation" from the standard of care is
a question for the jury). Hence, at trial, the trier
of fact must determine whether the facts presented prove
beyond a reasonable doubt that the risk was substantial
and unjustified. In the limited context of a preliminary
hearing, the court must determine whether a risk was
substantial and unjustified by considering the evidence
presented in the light most favorable to the prosecution,
and the court must ask whether a reasonable person could
"entertain" the belief——though not necessarily conclude
beyond a reasonable doubt——that the defendant’s conduct
was reckless based on that evidence.
Conscious Disregard
In addition to showing that a person created a substantial
and unjustifiable risk, the prosecution must demonstrate
that the actor "consciously disregarded" the risk in
order to prove that she acted recklessly. A person acts
with a conscious disregard of the risk created by her
conduct when she is aware of the risk and chooses to
act despite that risk. See Shaw, 646 P.2d
at 380; MPC, Tentative Draft No. 4, § 2.02 cmt. at 125
(describing reckless conduct as "conscious risk creation").
In contrast to acting "intentionally" or "knowingly,"
the actor does not have to intend the result or be "practically
certain" that the result will occur, he only needs to
be "aware" that the risk exists. See Moore,
925 P.2d at 267-68 n.6 (discussing different levels
of culpability); Deskins, 927 P.2d at 373 (finding
sufficient evidence in record to support jury’s conclusion
that defendant was aware of risk that "any of the cars
on the road" on given night might contain children).
The statutory definitions of culpable mental states
make these distinctions clear. Compare §§ 18-1-501(5)
("A person acts ‘intentionally’ or ‘with intent’ when
his conscious objective is to cause the specific
result. . . .") (emphasis added); -501(6) ("A person
acts ‘knowingly’ or ‘willfully’ . . . when he is aware
that his conduct is practically certain to cause
the result.") (emphasis added) with § 18-1-501(8)
(defining "reckless" as a conscious disregard
of a substantial and unjustifiable risk) (emphasis added).
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Although recklessness is a less culpable
mental state than intentionally or knowingly, it involves
a higher level of culpability than criminal negligence.
Criminal negligence requires that, "through a gross
deviation from the standard of care that a reasonable
person would exercise," the actor fails to perceive
a substantial and unjustifiable risk that a result will
occur or a circumstance exists. § 18-1-501(3); see
also People v. Jones, 193 Colo. 250, 253-54,
565 P.2d 1333, 1335 (1977) (discussing criminally negligent
homicide). An actor is criminally negligent when he
should have been aware of the risk but was not, while
recklessness requires that the defendant actually be
aware of the risk but disregard it. See Shaw,
646 P.2d at 380. Thus, even if she should be, a person
who is not actually aware that her conduct creates a
substantial and unjustifiable risk is not acting recklessly.
A court or trier of fact may infer a
person’s subjective awareness of a risk from the particular
facts of a case, including the person’s particular knowledge
or expertise. Cf. People v. Mingo, 196
Colo. 315, 318, 584 P.2d 632, 634 (1978) (finding that
"subjective awareness of the probability of consequences"
often must be inferred from the defendant’s conduct
and surrounding circumstances). For example, a court
may infer a person’s subjective awareness of the risks
created by firing a gun from the facts that the person
served an extended tour of duty in the military as a
rifleman and machine gunner and was instructed by both
the army and his father not to point a gun at another
person. See Murray v. State, 855 P.2d
350, 357 (Wyo. 1993). A court may infer from a person’s
extensive training and safety instruction that the person
understood the risks of fire and other "catastrophic
dangers" created by the "slipshod" installation of a
baseboard heater. See Salz, 627 A.2d at
869-70.
In addition to the actor’s knowledge
and experience, a court may infer the actor’s subjective
awareness of a risk from what a reasonable person would
have understood under the circumstances. See
Treiman, supra, at 357. When a court infers the
defendant’s subjective awareness of a risk from what
a reasonable person in the circumstances would have
known, the court may consider the perspective of a reasonable
person in the situation and with the knowledge and training
of the actor. See id. Although a court
can infer what the defendant actually knew based on
what a reasonable person would have known in the circumstances,
a court must not confuse what a reasonable person would
have known in the circumstances with what the defendant
actually knew. See id. Thus, if a defendant
engaged in conduct that a reasonable person would have
understood as creating a substantial and unjustifiable
risk of death, the court may infer that the defendant
was subjectively aware of that risk, but the court cannot
hold the defendant responsible if she were actually
unaware of a risk that a reasonable person would have
perceived.
Hence, in a reckless manslaughter case,
the prosecution must prove that the defendant acted
despite his subjective awareness of a substantial and
unjustifiable risk of death from his conduct. Because
absent an admission by the defendant such awareness
cannot be proven directly, the court or trier of fact
may infer the defendant’s awareness of the risk from
circumstances such as the defendant’s training, knowledge,
and prior experiences, or from what a reasonable person
would have understood under the circumstances.
Risk of Death
The
final element of recklessness requires that the actor
consciously disregard a substantial and unjustifiable
risk of a particular result, and in the case of manslaughter
the actor must risk causing death to another person.
The risk can be a risk of death to another generally;
the actor does not have to risk death to a specific
individual. Cf. Deskins, 927 P.2d at 373
(finding that defendant engaged in substantial and unjustifiable
risk that any car on the road, not just the one he hit,
might contain children). Because the element of a "substantial
and unjustifiable risk" measures the likelihood and
magnitude of the risk disregarded by the actor, any
risk of death will meet the requirement that the actor,
by his conduct, risks death to another. That is, only
a slight risk of death to another person is necessary
to meet this element.
IV.
APPLICATION OF LEGAL PRINCIPLES TO HALL’S CONDUCT
A.
Standard of Proof and Review for Preliminary Hearing
Before we review the district court’s
decision affirming the county court’s dismissal of the
manslaughter charge against Hall for lack of probable
cause, we discuss the principles governing a court’s
determination of probable cause at a preliminary hearing.
Under Crim. P. 5(a)(4), a person accused of a felony
has a right to a preliminary hearing to determine whether
probable cause exists to believe that the defendant
committed the offense charged in the felony complaint.
In general, a preliminary hearing serves a limited purpose:
to determine if there is probable cause to believe that
the defendant committed the crime charged. See
People v. District Court (Henry), 926 P.2d 567,
570 (Colo. 1996). To establish probable cause at a preliminary
hearing, the prosecution must "present evidence sufficient
to induce a person of ordinary prudence and caution
to entertain a reasonable belief that the defendant
committed the crime charged." Id. The prosecution
does not have to establish beyond a reasonable doubt
that the defendant committed the crime or even the likelihood
that the defendant committed the crime. See id.
During a preliminary hearing, the court
may consider evidence that might not be admissible at
trial, such as hearsay. See Maestas v. District
Court, 189 Colo. 443, 446, 541 P.2d 889, 891 (1975).
The court must view all evidence and draw all inferences
in favor of the prosecution, and the court must not
accept the defendant’s version of the facts over the
legitimate inferences that can be drawn from the prosecution’s
evidence. See People v. District Court (Cloud),
803 P.2d 193, 196 (Colo. 1990). The court should not
review the merits of the prosecution’s factual assertions
because that function should be left for the trier of
fact if the case goes to trial. See id.
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Generally, we review a district’s court
decision upholding the county court’s finding of no
probable cause under an abuse of discretion standard.
See Henry, 926 P.2d at 572. However, we
review conclusions of law de novo. See Valdez
v. People, 966 P.2d 587, 590 (Colo. 1998). If we
determine that a lower court applied an erroneous construction
of law at a preliminary hearing, we will review the
record and determine whether the facts, when viewed
in the light most favorable to the prosecution, would
induce a reasonably prudent and cautious person to entertain
the belief that the defendant committed the crime charged.
See People v. Villapando, 984 P.2d 51,
54-56 (Colo. 1999) (reviewing facts presented at preliminary
hearing under correctly stated legal standard).
B.
Review of Hall’s Conduct
The district court’s conclusion that
Hall’s conduct did not represent a substantial and unjustifiable
risk of death rested on an erroneous construction of
recklessness. Relying on two of our earlier cases, the
court found that for a risk to be "substantial" it must
"be at least more likely than not that death
would result."(13)
(Emphasis added.) As discussed, a risk of death that
has less than a fifty percent chance of occurring may
nonetheless be a substantial risk depending on the circumstances
of the particular case. Because the district court applied
a flawed interpretation of the law, we hold that the
district court’s assessment of probable cause was in
error. See Villapando, 984 P.2d at 55.
Because the district court relied on
an erroneous legal standard, we consider this case in
light of the standard we explain above. Because this
case was dismissed at the preliminary hearing, we must
consider the facts in the light most favorable to the
prosecution and we must draw all inferences against
the defendant. Furthermore, the prosecution does not
have to satisfy the much higher burden of proof necessary
to convict Hall of reckless manslaughter. Rather, it
need only establish sufficient evidence so that a reasonably
prudent and cautious person could entertain the belief
that Hall committed the crime.
We first ask whether the prosecution
presented sufficient evidence to show that Hall’s conduct
created a substantial and unjustifiable risk of death.
Like other activities that generally do not involve
a substantial risk of death, such as driving a car or
installing a heater, "skiing too fast for the conditions"
is not widely considered behavior that constitutes a
high degree of risk. However, we hold that the specific
facts in this case support a reasonable inference that
Hall created a substantial and unjustifiable risk that
he would cause another’s death.
Several witnesses stated that Hall was
skiing very fast. Allen and the other eyewitnesses all
said that Hall was travelling too fast for the conditions,
at an excessive rate of speed, and that he was out of
control. Allen said that Hall passed him on the slope
travelling three times faster than Allen, himself an
expert skier. Sandberg presented testimony that Hall
was a ski racer, indicating that Hall was trained to
attain and ski at much faster speeds than even skilled
and experienced recreational skiers. The witnesses said
that Hall was travelling straight down the slope at
such high speeds that, because of his lack of control,
he would not have been able to stop or avoid another
person.
In addition to statements of witnesses,
the nature of Cobb’s injuries and other facts of the
collision support the inference that Hall was skiing
at an inordinately high speed when he struck Cobb. As
Dr. Galloway testified, the severe injuries Cobb sustained
were consistent with a person being thrown from a moving
automobile during a crash. The coroner said that although
he could not estimate Hall’s speed from Cobb’s injuries,
Hall must have been travelling with "a significant amount
of speed" to generate sufficient force to cause a basal
skull fracture and brain injuries like Cobb’s. Additionally,
Hall crashed through Lemaner’s skis and poles after
he struck Cobb——breaking one of the poles in half——indicating
a very high speed and great deal of force. Hall came
to rest over eighty feet past Cobb’s body, further suggesting
that Hall was skiing at exceptionally high speeds. Thus,
based on the testimony of the witnesses and the coroner’s
examination of Cobb’s body, a reasonable person could
conclude that Hall was skiing at very high speeds, thereby
creating a risk of serious injury or death in the event
of a skier-to-skier collision.
In addition to Hall’s excessive speed,
Hall was out of control and unable to avoid a collision
with another person. All the witnesses said Hall was
not traversing the slope and that he was skiing straight
down the fall line. Hall was back on his skis, with
his ski tips in the air and his arms out to his sides
to maintain balance. Allen said that Hall was bounced
around by the moguls on the slope rather than skiing
in control and managing the bumps. Hall admitted to
Deputy Mossness that he first saw Cobb when he was airborne
and that he was unable to stop when he saw people below
him just before the collision. Hence, in addition to
finding that Hall was skiing at a very high rate of
speed, a reasonably prudent person could have concluded
that Hall was unable to anticipate or avoid a potential
collision with a skier on the trail below him.
While skiing ordinarily carries a very
low risk of death to other skiers, a reasonable person
could have concluded that Hall’s excessive speed, lack
of control, and improper technique for skiing bumps
significantly increased both the likelihood that a collision
would occur and the extent of the injuries that might
result from such a collision, including the possibility
of death, in the event that a person like Cobb unwittingly
crossed Hall’s downhill path. McWilliam testified that
he was aware of only two other deaths from skier collisions
on Vail mountain in the past eleven years, but a reasonable
person could have determined that Hall’s conduct was
precisely the type of skiing that risked this rare result.
We next ask whether a reasonable person
could have concluded that Hall’s creation of a substantial
risk of death was unjustified. To the extent that Hall’s
extremely fast and unsafe skiing created a risk of death,
Hall was serving no direct interest other than his own
enjoyment. Although the sport often involves high speeds
and even moments where a skier is temporarily out of
control, a reasonable person could determine that the
enjoyment of skiing does not justify skiing at the speeds
and with the lack of control Hall exhibited. Thus, a
reasonable person could have found that Hall’s creation
of a substantial risk was unjustifiable.
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In addition to our conclusion that a
reasonable person could have entertained the belief
that Hall’s conduct created a substantial and unjustifiable
risk, we must ask whether Hall’s conduct constituted
a "gross deviation" from the standard of care that a
reasonable law-abiding person (in this case, a reasonable,
law-abiding, trained ski racer and resort employee)
would have observed in the circumstances.
As we noted, the nature of the sport
involves moments of high speeds and temporary losses
of control. See also § 33-44-102 (recognizing
"the dangers that inhere in the sport of skiing"). However,
the General Assembly imposed upon a skier the duty to
avoid collisions with any person or object below him.
See § 33-44-109(2).(14)
Although this statute may not form the basis of criminal
liability, it establishes the minimum standard of care
for uphill skiers and, for the purposes of civil negligence
suits, creates a rebuttable presumption that the skier
is at fault whenever he collides with skiers on the
slope below him. See Pizza v. Wolf Creek Ski
Dev. Corp., 711 P.2d 671, 676 (Colo. 1985). A violation
of a skier’s duty in an extreme fashion, such as here,
may be evidence of conduct that constitutes a "gross
deviation" from the standard of care imposed by statute
for civil negligence. Hall admitted to Deputy Mossness
that as he flew off a knoll, he saw people below him
but was unable to stop; Hall was travelling so fast
and with so little control that he could not possibly
have respected his obligation to avoid skiers below
him on the slope. Additionally, Hall skied in this manner
for some time over a considerable distance, demonstrating
that his high speeds and lack of control were not the
type of momentary lapse of control or inherent danger
associated with skiing. Based on the evidence, a reasonable
person could conclude that Hall’s conduct was a gross
deviation from the standard of care that a reasonable,
experienced ski racer would have exercised knowing that
other people were on the slope in front of him and that
he could not see the area below the knolls and bumps
over which he was jumping.
Having determined that Hall’s conduct
created a substantial and unjustified risk of death
that is a gross deviation from the reasonable standard
of care under the circumstances, we next ask whether
a reasonably prudent person could have entertained the
belief that Hall consciously disregarded that risk.
Hall is a trained ski racer who had been coached about
skiing in control and skiing safely. Further, he was
an employee of a ski area and had a great deal of skiing
experience. Hall’s knowledge and training could give
rise to the reasonable inference that he was aware of
the possibility that by skiing so fast and out of control
he might collide with and kill another skier unless
he regained control and slowed down.
In addition to inferring Hall’s awareness
of the risk from Hall’s training and experience, a reasonable
person with expert training and knowledge of skiing
may have realized that skiing at very high speeds without
enough control to stop or avoid a collision could seriously
injure or kill another skier. A reasonable expert and
experienced skier also might understand that in view
of his duties under section 33-44-109, he must maintain
enough control to avoid collisions with skiers below
him on the slope. Thus, both Hall’s subjective knowledge
and the awareness that a reasonable person with Hall’s
background would have had support the inference that
Hall consciously disregarded the risk he created by
acting despite his awareness of the risk.
Although the risk that he would cause
the death of another was probably slight, Hall’s conduct
created a risk of death. Hall’s collision with Cobb
involved enough force to kill Cobb and to simulate the
type of head injury associated with victims in car accidents.
Even though it is a rare occurrence, the court heard
testimony that two skiers in the past eleven years died
on Vail mountain alone from skier-to-skier collisions.
Based on the evidence presented at the preliminary hearing,
a reasonable person could conclude that Hall’s conduct
involved a risk of death.
Thus, interpreting the facts presented
in the light most favorable to the prosecution, we hold
that a reasonably prudent and cautious person could
have entertained the belief that Hall consciously disregarded
a substantial and unjustifiable risk that by skiing
exceptionally fast and out of control he might collide
with and kill another person on the slope.
Obviously, this opinion does not address
whether Hall is ultimately guilty of any crime. Rather,
we hold only that the People presented sufficient evidence
to establish probable cause that Hall committed reckless
manslaughter, and the court should have bound Hall’s
case over for trial.
V.
CONCLUSION
The prosecution provided sufficient evidence
at the preliminary hearing to induce a person of reasonable
prudence and caution to entertain the belief that Hall
consciously disregarded a substantial and unjustifiable
risk that he might collide with and kill another skier.
A court must inquire into the specific facts of each
case to determine whether a risk was substantial and
unjustified based on the likelihood of the risk, the
potential magnitude of the harm, and the nature and
purpose of the actor’s conduct. In most instances, "skiing
too fast for the conditions" does not create a substantial
and unjustifiable risk of death, but the facts in this
case are sufficient to lead a reasonable person to determine
that Hall consciously disregarded such a risk. Although
a reasonable person would not necessarily conclude that
the evidence proves beyond a reasonable doubt that Hall
committed reckless manslaughter, the evidence is sufficient
to meet the limited purpose and low threshold at a preliminary
hearing to establish probable cause. Thus, we remand
this case to the district court for trial.
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1. See
§ 18-3-104(1)(a).
2. See
§ 18-3-105.
3. 729 P.2d
972 (Colo. 1986).
4. 199 Colo.
41, 606 P.2d 840 (1979).
5. By contrast,
the defendant has no right of appeal from a finding
of probable cause because the statute allows only the
prosecution to appeal from the county court. See
Abbott v. County Court, 886 P.2d 730, 732 (Colo.
1994). A defendant may seek relief in the form of an
extraordinary writ from this court pursuant to C.A.R.
21. See id.
6. Under
the current statutory scheme, statutes in which the
culpability requirement is expressed as "intentionally"
or "with intent" are specific intent crimes:
[A] person acts "intentionally" or
"with intent" when his conscious objective is to cause
the specific result proscribed by the statute defining
the offense. It is immaterial to the issue of specific
intent whether or not the result actually occurred.
§ 18-1-501(5), 6 C.R.S. (1999).
7. Under
section 18-1-501(6), crimes defined by a culpable mental
state of "knowingly" or "willfully" are "general intent"
crimes, and:
A person acts "knowingly" or "willfully"
with respect to conduct or to a circumstance described
by a statute defining an offense when he is aware
that his conduct is of such a nature that such a circumstance
exists. A person acts "knowingly" or "willfully,"
with respect to a result of his conduct, when he is
aware that his conduct is practically certain to cause
the result.
8. Under
section 18-1-501(8):
A person acts recklessly when he consciously
disregards a substantial and unjustified risk that
a result will occur or that a circumstance exists.
9. Under
section 18-1-501(3):
A person acts with criminal negligence
when, through a gross deviation from the standard
of care that a reasonable person would exercise, he
fails to perceive a substantial and unjustifiable
risk that a result will occur or that a circumstance
exists.
10. Because
the General Assembly specifically cited both the Model
Penal Code and the New York Code and their commentaries
as models for Colorado’s code, we consider those sources
useful aids for construing the definitions of culpable
mental states. See § 40-1-602, cmt., 3 C.R.S.
(1971 Supp.).
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11. Section
18-3-104 reads in pertinent part:
(1) A person commits the crime of manslaughter
if:
(a) Such person recklessly causes the
death of another person.
12. We
note that both criminal negligence and recklessness
require that the actor’s conduct involve a "gross deviation"
from the standard of care that a reasonable person would
exercise under the circumstances in each case. Thus,
the same risk will suffice for either criminally negligent
or reckless conduct. However, the standards are sufficiently
distinct to justify unequal penalties because in the
case of reckless conduct the actor must be aware
of the risk he creates, while criminally negligent
conduct requires only that he failed to perceive the
risk. See People v. Shaw, 646 P.2d 375,
380 (Colo. 1982).
13. The
district court cited DelGuidice, in which we
stated that the difference between "knowingly" and "recklessly"
"mirrors the distinction between practically certain
of the result on the one hand, and probability or
contingency of result on the other." 199 Colo. at
43, 606 P.2d at 842 (emphasis added). The district court
also relied on Thomas, in which we referred to
the defendant’s "disregard for the likelihood
that another will die." 729 P.2d at 976 (emphasis added).
While the court’s reliance on this language is understandable,
it is misplaced. We did not intend for the terms "probability
or contingency" or "likelihood" to mean that the actor
must be aware of a greater than 50% chance that his
conduct will produce the result, as the district court
concluded. Instead, we meant only that the actor must
be aware of some chance of the result occurring,
even if the probability is less than 50%. Cf.
Deskins, 927 P.2d at 373 (finding reckless conduct
where defendant took risk that any car on the road might
contain children).
14. Section
33-44-109(2) states:
Each
skier has the duty to maintain control of his speed
and course at all times when skiing and to maintain
a proper lookout so as to be able to avoid other skiers
and objects. However, the primary duty shall be on
the person skiing downhill to avoid collision with
any person or objects below him.
