People v. Vigil

488 P.3d 1150

In Re The PEOPLE of the State of Colorado, Plaintiff,

v. Delbert Ray VIGIL, Defendant.

Supreme Court Case No. 20SA240

Supreme Court of Colorado.

June 14, 2021

Attorneys for Plaintiff: John Kellner, District Attorney, Eighteenth Judicial District, Susan J. Trout, Senior Deputy District Attorney Centennial, Colorado

Attorneys for Defendant: Megan A. Ring, Public Defender, Christian Enrique Izaguirre, Deputy Public Defender, Andrew P. Castle, Deputy Public Defender Centennial, Colorado

Attorneys for Respondent Arapahoe County District Court: Philip J. Weiser, Attorney General, Emily B. Buckley, Assistant Attorney General Denver, Colorado

En Banc

CHIEF JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶1 A conviction for first-degree assault under section 18-3-202(1)(a), C.R.S. (2020), requires proof that the defendant caused "serious bodily injury" to another person using a deadly weapon. The Criminal Code defines "[s]erious bodily injury" as "bodily injury which, either at the time of the actual injury or at a later time, involves substantial risk of death." § 18-1-901(3)(p), C.R.S. (2020). This case concerns the meaning of the phrase "substantial risk of death" in the definition of serious bodily injury.

¶2 Here, Delbert Vigil allegedly stabbed Ryan Combs in the neck. The knife missed all vital structures, and Combs needed only stitches for treatment. The People and Vigil disagree on whether the injury involved substantial risk of death and, therefore, whether Vigil caused serious bodily injury. The People argue that the injury involved substantial risk of death because Vigil swung a knife at Combs and inflicted an injury to Combs's neck—a part of the body crucial for sustaining life. In response, Vigil argues that the injury did not involve substantial risk of death because the knife did not damage any of the vital structures in Combs's neck. Thus, the People and Vigil disagree on whether the risk generally associated with the type of conduct or injury in question—here, a stab wound to the neck—or the facts of the actual injury control the substantial risk of death determination.

¶3 The trial court, at a preliminary hearing, found probable cause for serious bodily injury, reasoning that "[i]t's not the damage that was actually done here, [but] the injury itself" that controls the substantial risk of death determination. The court, in other words, sided with the People and relied on the conduct and risk generally associated with the type of injury in question. Vigil filed a C.A.R. 21 petition, and we issued a rule to show cause to consider the meaning of "substantial risk of death" in the definition of serious bodily injury.

¶4 We now hold that the facts of the actual injury control the substantial risk of death determination under section 18-1-901(3)(p), not the risk generally associated with the type of conduct or injury in question. In doing so, we reaffirm our decision in Stroup v. People, 656 P.2d 680 (Colo. 1982), and to the extent inconsistent with Stroup and this opinion, overrule the court of appeals' decisions in People v. Sanchez, 751 P.2d 1013 (Colo. App. 1988), and People v. Covington, 988 P.2d 657 (Colo. App. 1999), rev'd on other grounds, 19 P.3d 15 (Colo. 2001). Accordingly, because the knife missed all vital structures, the stab wound to the neck here did not involve substantial risk of death, and thus, Vigil did not cause serious bodily injury. Therefore, we make the rule to show cause absolute and remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶5 A riverside smoke break devolved into a drunken and bloody knife fight, during which Combs sustained two stab wounds, one to the left side of his neck and the other to back of his left arm.

¶6 Fortunately, Combs escaped the worst. According to Dr. Erik Verzemnieks, the emergency room physician who treated Combs after an ambulance delivered him to the hospital, a stab wound to the neck would involve substantial risk of death if it "injured any of [the relevant] vital structures," including "the major blood vessels, the lungs, potentially the esophagus, trachea, and the spinal cord." Therefore, based on the manner in which Combs sustained the stab wound to the neck and its location, Dr. Verzemnieks and the hospital's trauma team initially "felt there was a potential for a high enough risk of injury to those structures that [they] could not rule it out any other way until getting [a] CT scan." The medical examination, including the CT scan and an evaluation by a surgeon, however, revealed no damage to the vital structures. After a two-hour stay, during which the "only treatment [Combs] received for those wounds" consisted of stitches, Combs left the hospital with a letter from Dr. Verzemnieks describing "superficial" and "minor" injuries. Later, Dr. Verzemnieks indicated on an "SBI form" that the stab wound to the neck did not constitute serious bodily injury.

¶7 After Combs identified Vigil as the assailant, the People charged Vigil with four counts, including, as relevant here, Count 2, attempted first-degree assault under sections 18-3-202(1)(a) and 18-2-101, C.R.S. (2020), a class 4 felony. After a preliminary hearing and Vigil's entry of a not guilty plea, the People moved to amend Count 2 from attempted first-degree assault to completed first-degree assault, causing serious bodily injury with a deadly weapon, under section 18-3-202(1)(a), a class 3 felony. The motion entitled Vigil to a preliminary hearing on that count, which he requested.

¶8 At that preliminary hearing, the trial court addressed the sole issue of serious bodily injury, specifically whether probable cause existed to find that Combs's stab wound to the neck involved substantial risk of death. The People first called Investigator Michael Buoniconti, who testified that in speaking with Dr. Verzemnieks about the SBI form, the doctor explained that his conclusion that Combs's stab wound to the neck did not constitute serious bodily injury "was based on after his treatment was completed, not based on the time of the injury." According to Investigator Buoniconti, Dr. Verzemnieks further explained that "had he ... understood that form, as he does now, that he would have signed off on [serious bodily injury] then." The prosecutor asked Investigator Buoniconti to clarify the reasoning behind Dr. Verzemnieks's change of heart, specifically whether "at the time of the injury, when [Combs] was stabbed in the neck, [Dr. Verzemnieks] believed there was a substantial risk of death, based on the vital areas that could be damaged there," and Investigator Buoniconti responded in the affirmative. (Emphasis added.)

¶9 Vigil then called Dr. Verzemnieks. After asking Dr. Verzemnieks about Combs's injuries and treatment, defense counsel drew a distinction between "risk of conduct" and "risk created by actual injury"¹ :

Q. So, Doctor, you talked a moment ago about [how] a laceration or a stab wound to the neck could create certain risks with respect to blood vessels, lungs, esophagus, and other critical components of the body; correct?

A. Correct.

Q. And that conduct could create a substantial risk of death; right?

A. Absolutely.

Q. Okay. Now, that is the conduct. Now I want to talk about Mr. Combs and the actual injury that occurred here.

(Emphases added.) Then, defense counsel confirmed with Dr. Verzemnieks that Combs had not, in fact, sustained damage to the esophagus, lungs, spine, or blood vessels. To conclude, defense counsel asked whether, "based on everything, the actual injuries ... in your professional medical opinion did not create substantial risk of death," and Dr. Verzemnieks agreed that the actual injuries did not create such a risk.

¶10 The prosecutor's cross-examination of Dr. Verzemnieks pursued the conduct/actual injury distinction, and the following exchange ensued:

Q. And would it be your opinion that at the time of the actual injury sustained by the victim, that the injury caused substantial risk of death?

A. At the time of the injury[,] knowing nothing else?

Q. Right.

A. I would say so.

Q. And is that based on the organs you described and the manner of the injury that you learned about, as part of your treatment, a stab to the neck?

A. Correct.

(Emphasis added.)

¶11 The trial court found probable cause for serious bodily injury. The court addressed the conduct/actual injury distinction and relied on Stroup as well as Sanchez and Covington —two court of appeals decisions interpreting Stroup —in its analysis, reasoning that "the definition of serious bodily injury speaks in terms of injury not damage." Therefore, the court concluded, "it's not the damage that was actually done here" that mattered but "the injury itself, at the time the knife enters Mr. Combs' neck." Because "that's exactly what Dr. Verzemnieks testified to, that at that time he would find that there was a risk, a substantial risk of death," the court bound over the amended Count 2 for trial.

¶12 Vigil filed a C.A.R. 21 petition, and we issued a rule to show cause. We now explain our decision to exercise original jurisdiction.

II. Original Jurisdiction

¶13 We exercise original jurisdiction and grant relief under C.A.R. 21 only when "no other adequate remedy ... is available." C.A.R. 21(a)(1). We deem such relief appropriate, for example, "when an appellate remedy would be inadequate, when a party may otherwise suffer irreparable harm, [or] when a petition raises issues of significant public importance that we have not yet considered." People v. Huckabay, 2020 CO 42, ¶ 9, 463 P.3d 283, 285 (alteration in original) (quoting People v. Kilgore, 2020 CO 6, ¶ 8, 455 P.3d 746, 748 ). Indeed, C.A.R. 21 provides relief "extraordinary in nature" and "wholly within [this court's] discretion." C.A.R. 21(a)(1).

¶14 In granting the petition, we concluded that the issue in this case—namely, whether serious bodily injury can be created only through the defendant's conduct rather than the facts of...