I don't think the alibi evidence from the pool store owners, the Equador fantasy, or the credibility arguments of the defense will factor into the judge's decision. After all, he must accept the evidence in the light most favorable to the prosecution.
He can't ignore the evidence that SM was alive, actively texting her friends right up to the time BM's truck arrives, the door opens, and he - by his own admission - begins moving around the house with a gun in his hand. After that exact time, she is unresponsive to her friends for the rest of that day and every day since. He can't ignore the evidence suggesting that thereafter, BM puts his phone for enough time to get rid of her body. He can't ignore BM's previous efforts to establish the Broomfield work alibi or its abject phoniness when tested by LE. There is more, of course, but my point is that the evidence is there to find probable cause on every count.
But Judge Murphy signed the arrest warrant, and as a conscientious judge he intends to demonstrate that he's not a rubber stamp for the prosecution. He will spell out the standard he is bound to apply, then demonstrate how the evidence meets it. He will be careful to point out that he is not determining guilt or innocence, and that he is not deciding that evidence objected to by the defense will be admissible at trial.
The defense has tried to suggest that there is no evidence of deliberation and therefore the First Degree Murder charge should be dismissed. But from the effort to establish the alibi alone, an ordinary person could infer that BM deliberated before he killed his wife.
See if you agree. Here's the standard jury instruction for Colorado.
F:10 AFTER DELIBERATION
The term “after deliberation” means not only intentionally but also that the decision to commit the act has been made after the exercise of reflection and judgment concerning the act. An act committed after deliberation is never one which has been committed in a hasty or impulsive manner.
COMMENT
- See § 18-3-101(3), C.R.S. 2018 (homicide and related offenses).
- Under this definition, some “‘appreciable length of time must have
elapsed to allow deliberation, reflection and judgment.’” Key v. People, 715 P.2d 319, 322 (Colo. 1986) (quoting People v. Sneed, 183 Colo. 96, 100, 514 P.2d 776, 778 (1973)). See Martinez v. People, 2015 CO 16, ¶ 11, 344 P.3d 862 (“The trial court in this case erroneously instructed the jury that ‘after deliberation’ means an interval of time ‘sufficient for one thought to follow another.’ The prosecution culled this language from an 1895 case, Van Houten v. People, that considered how quickly premeditation can occur in the first-degree murder context. 22 Colo. 53, 43 P. 137, 142 (1895). More recently, however, this court has rejected the Van Houten language as inconsistent with the element of deliberation that the current first-degree murder statute requires. People v. Sneed, 183 Colo. 96, 514 P.2d 776, 778 (1973). . . . [However,] because the record in this case reveals overwhelming evidence of deliberation, and the instructions as a whole adequately informed the jury of the law, the instructional error did not seriously impair the reliability of the jury’s guilty verdict. We therefore affirm the court of appeals’ holding that there was no plain error in the trial court’s jury instructions.”).
3. Evidence of voluntary intoxication is admissible to counter the specific intent element of first-degree murder, which includes “after deliberation” as an element. See People v. Miller, 113 P.3d 743, 750 (Colo. 2005); People v. Harlan, 8 P.3d 448, 471–75 (Colo. 2000).
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4. In 2015, the Committee revised Comment 2 by adding a citation to
Martinez v. People.
