PR 04910.007 Colorado
A. PR 11-156 Status of Conviction for Death of NH in the State of Colorado (NH Rosina C~)—REPLY
DATE: September 21, 2011
Under Colorado law, a person who commits criminally negligent homicide (CNH) is one “who causes the death of another person by conduct amounting to criminal negligence.”
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. In this case the claimant’s conviction of CNH is not an intentional homicide and does not preclude his entitlement to survivor’s benefits.
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.
No. The claimant’s conviction of CNH is not an intentional homicide and does not preclude his entitlement to survivor’s benefits.
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.
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”).
The claimant is entitled to survivor’s benefits, notwithstanding his conviction for CNH.
John J. L~
Regional Chief Counsel,
Yvette G. K~
Assistant Regional Counsel
We have previously advised that a conviction of CNH in Colorado is analogous to involuntary manslaughter under the POMS list of offenses and rules for intent (POMS GN 00304.065(B)); as such, lack of intent should be presumed, but could be rebutted. See Memorandum, Effect of Conviction for Criminally Negligent Homicide – Colorado, RCC VIII (Prescott) to RC, SSA, June 8, 1994. We thus suggested that where an individual is convicted of CNH (or involuntary manslaughter), the specific facts could be examined and might rebut the presumption regarding lack of intent. After further consideration, we do not think lack of intent can be rebutted by examining the specific facts surrounding a conviction in cases where a state’s statute is clear regarding intent (like Colorado’s CNH statute). We believe the best interpretation of POMS GN 00304.065(B) is that presumed lack of intent may be rebutted only if the particular state’s definition of the crime is silent regarding intent or is broad enough to permit more than one conclusion regarding intent (for example, if a state’s definition of involuntary manslaughter applied to both reckless and negligent killings). Here, as discussed above, in Colorado CNH is by definition not intentional, and we do not think the lack of intent can be rebutted.