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Homicide cases deal with the killing of another human being. But the circumstances and details of a case determine exactly what type of crime was supposedly committed.


What does that mean? Isn’t a murder just a murder?


Nope. You’ve probably heard lawyers on TV shows talking about different degrees of murder, but may not have ever really understood what they meant.


Laws in Colorado classify homicide cases into several different degrees or levels. On one side of the spectrum, you have murder in the first degree. These types of crimes are intentional, violent, and pre-planned. Manslaughter, on the other side of the spectrum, is a form of murder that covers accidental killings.


But what about everything in between?


Many people say murder in the second degree is a catch-all charge that covers everything that isn’t first degree murder or manslaughter.


Regardless of whether or not that’s the case, below we’re going to look at the charge of second degree murder and see what types of homicides would fall under this charge.


Murder and the Law in Colorado


In order to understand second degree murder, we need to first understand first degree murder.


First degree murder is considered the most repugnant form of murder. The elements of a first degree murder charge are:


  • Deliberation – long and careful thought or consideration
  • Premeditation – thinking or planning a crime beforehand
  • Malice aforethought – the conscious intent to cause death or great bodily harm to another person before a person commits the crime of murder


Basically, someone commits first degree murder when they make a conscious decision to kill another person and then take the required steps to follow through on their plan. They do it intentionally and with deliberation.


James Holmes, the Aurora movie theater shooter, was convicted on 24 counts of murder in the first degree along with 140 counts of attempted murder in the first degree for the massacre on July 20, 2012. The jury said that Holmes acted in a cruel manner, was lying in wait, and ambushed his victims during the shooting – all elements that point to a malicious, premeditated, and deliberate crime.


Also, if a non-participant is killed while certain felonies are being committed, that falls under Colorado’s felony murder rule as first degree murder. For example, if someone set a building on fire and an innocent person dies because of it, the alleged arsonist will also be charged with first degree murder. Some areas have felony murder laws that are even more strict.


Colorado Murder Defense Lawyer


So how does first degree murder differ from second degree murder?


The law states that, “A person commits the crime of murder in the second degree if the person knowingly causes the death of a person.


So with second degree murder, the defendant intentionally kills someone, but the elements required for a first degree murder charge – deliberation, premeditation, and malice aforethought – are missing.


Bottom line? If someone thinks about it first and makes a plan, then it is first degree murder. But if they are just reacting and have not planned the murder out in advance, it becomes second degree murder.


Murder in the second degree is a class 2 felony, punishable by a presumptive minimum prison term of 8 years and a maximum term of 24 years with 5 years parole. Since second degree murder is a violent crime, however, the highest possible sentence could be 48 years in prison.


Where a “Heat of Passion” Crime Fits In


While second degree murder is a class 2 felony, there are certain instances when it can be reduced to a class 3 felony. Class 3 felonies are punishable by a presumptive range of 4 to 12 years in prison. However, since it is a violent crime, the highest possible sentence could be 24 years in prison.


Other states often refer to this type of crime as voluntary manslaughter or simply the “heat of passion” murder law. In Colorado, this type of crime is covered within the second degree murder statute.


Murder Attorney Denver


“Murder in the second degree is a class 3 felony where the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person; but, if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the killing is a class 2 felony.”


Basically, if someone provokes you to the point of exciting an “irresistible passion” and you kill them in the heat of that passion, you can be charged for second degree murder – but only as a class 3 felony. If, however, there was time to cool down from the excitement and consider humanity or reason, the charge will be a class 2 felony.


Some common defenses for murder include innocence, self-defense, and insanity. Additionally, some people may be surprised to learn that being excessively drunk can actually be a viable defense strategy in reducing charges from first degree murder to second degree murder.


The best strategy for defending any murder charge, however, will come down to the specific facts and details of the case, as well as securing an experienced Colorado criminal defense lawyer.




About the Author:


Kimberly Diego is a criminal defense attorney in Denver practicing at The Law Office of Kimberly Diego. She obtained her undergraduate degree from Georgetown University and her law degree at the University of Colorado. She was named one of Super Lawyers’ “Rising Stars of 2012” and “Top 100 Trial Lawyers in Colorado” for 2012 and 2013 by The National Trial Lawyers. Both honors are limited to a small percentage of practicing attorneys in each state.  She has also been recognized for her work in domestic violence cases.


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