Question Presented
You asked whether the claimant’s conviction of the criminally negligent homicide (CNH)
of his wife, the deceased wage earner, is a “felonious and intentional homicide” that
precludes his entitlement to benefits on her earnings record.
Short Answer
No. The claimant’s conviction of CNH is not an intentional homicide and does not preclude
his entitlement to survivor’s benefits.
Background
Court documents reveal that on September 5, 1998, Jefferson County Sheriff’s Department
deputies responded to a report of a shooting at the claimant’s residence. Initially,
the claimant alleged that while he and his wife were using drugs, an intruder had
entered the residence and shot his wife. Later, during an interview with investigators,
the claimant admitted he had shot his wife while aiming at the alleged intruder. The
state charged the claimant with 10 crimes, including murder in the first degree and
CNH. The claimant pleaded guilty to CNH, a class five felony, and he received a three-year
prison sentence for that crime.
DISCUSSION
An individual who is “convicted of a felony or an act in the nature of a felony of
intentionally causing [a] person’s death” is not entitled to receive benefits on that
person’s earnings record. 20 C.F.R. § 404.305(b); see also POMS GN 00304.060. Since CNH is a felony, the agency must determine whether the claimant’s conviction
is for “intentionally” causing his wife’s death.
The agency’s definition of intent is not limited to conduct with the purpose of causing
the death of another but also encompasses:
[t]he presence of will in the commission of a criminal act where the individual is
fully aware of the nature and probable consequences of the act which is to be done.
This applies whether the individual desires that such consequences occur or is indifferent
as to their occurrence.
POMS GN 00304.060(B)(1)(b); see also Social Security Ruling 89-6c (noting that the POMS “expand[s] on the traditional meaning
of an intentional state of mind . . . [to] include . . . ‘an act which [the actor]
knows could result in death of the [wage earner] even though the [wage earners] death
is not actually desired’”). The POMS contains a list of offenses and provides general
rules for determining intent, but this list does not include criminally negligent
homicide. See POMS GN 00304.065.
Under Colorado law, a person who commits CNH is one “who causes the death of another
person by conduct amounting to criminal negligence . . . .” Colo. Rev. Stat. Ann.
§ 18-3-105. “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.” Id. § 18-1-501 (emphasis added). We may contrast CNH with the crime of manslaughter.
Under Colorado law, a person commits the crime of manslaughter if “[s]uch person recklessly
causes the death of another person.” Id. §18-3-104(1)(a). “A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a result will occur or that a circumstance
exists.” Id. § 18-1-501 (emphasis added). Thus, “[t]he distinction is between becoming aware of
a risk yet consciously choosing to disregard it as opposed to negligently failing
to become aware of the risk. Recklessness requires a higher degree of culpability
than criminal negligence.” People v. Bettis, 602 P.2d 877, 878 (Colo. App. 1979); accord People v. Shaw, 646 P.2d 375, 380 (Colo. 1982) (en banc). In fact, in 1981 when the Colorado General
Assembly repealed and reenacted § 18-3-105, the legislature deleted the word “knowingly”
as an element of CNH. See Colo. Rev. Stat. Ann. § 18-3-105, Historical and Statutory Notes.
Given the statutory definition and the above caselaw, an individual convicted of CNH
in Colorado failed to perceive the consequences of his actions. As defined in the
POMS, intent requires the individual to be “fully aware” of the consequences of his
actions. POMS GN 00304.060. As such, a conviction for CNH in Colorado should not be considered an intentional
homicide. See also People v. Hernandez, 614 P.2d 900, 901 (Colo. App. 1980) (“[c]riminally negligent homicide . . . is an
unintentional killing caused by the actor’s failure to perceive a substantial and
unjustifiable risk that a certain result will occur”). [1]
CONCLUSION
The claimant is entitled to survivor’s benefits, notwithstanding his conviction for
CNH.
John J. L~
Regional Chief Counsel,
By ___________
Yvette G. K~
Assistant Regional Counsel