The Jefferson County jury that convicted a man of first-degree murder for shooting his terminally ill wife did not need to consider whether he had the victim’s consent to kill her, the state’s second-highest court ruled on Thursday.

In a case involving an alleged “mercy killing,” Bruce E. Bagwell shot his wife of 36 years, Theresa Bagwell, after her health declined severely in January 2019 and she entered end-of-life hospice care. For days before her death, Bruce said his wife had repeatedly asked him to kill her.

Bagwell argued the trial court judge wrongfully denied his request to defend himself using a Colorado law that accounts for situations in which the victim consents to being harmed. However, a three-judge panel for the Court of Appeals pointed out that by the text of the law, the consent defense is only available when the injuries inflicted are “not serious.”

“An injury that causes a victim’s death is necessarily ‘serious’,” wrote Judge W. Eric Kuhn in the panel’s April 21 opinion, “because it involves a permanent and dangerous impairment of the victim’s physical condition. The consent defense is not available, then, when a defendant intentionally kills a victim who consents to her own death.”

Colorado voters in 2016 enacted an aid-in-dying law, the End-of-Life Options Act. For people with an eligible terminal illness and an expectation of dying within six months, the law authorizes physicians to prescribe medication that patients may then administer to end their lives. Bagwell told police that he and Theresa were aware of the law, but that “we both understood the little 12-gauge (shotgun) would get it done.”

Notably, the End-of-Life Options Act specifically rules out its application to mercy killings. Supporters of the “death with dignity” law agreed that Bruce Bagwell’s actions did not align with their goal, which is to ensure the patient is in control of whether and when to die.

“Ms. Bagwell’s tragic death underscores the necessity for death with dignity laws in every state that ensure the patient is acting voluntarily and able to make their own healthcare decisions,” said Peg Sandeen, executive director of the Portland-based Death with Dignity advocacy group. “When these laws aren’t followed or aren’t available to people who are dying, the end result can be prolonged suffering, violence and tragedy.”

Physicians who dispense aid-in-dying medication report to the Colorado Department of Public Health and Environment, which in turn publishes demographic data about terminally ill patients who avail themselves of the End-of-Life Options Act. Between 2017 and 2021, 777 people have received prescriptions, the overwhelming majority aged 65 or older.

Like Theresa Bagwell, 85% were under hospice care and nearly two-thirds were dying of cancer.

“I don’t think Colorado is ready to significantly alter this law which seems to be working well for those who choose to use it,” said former Sen. Lois Court, D-Denver, who led an unsuccessful legislative effort to enact an aid-in-dying protocol during her time in the General Assembly.

Bruce Bagwell received a life sentence after a jury convicted him of first-degree murder in October 2019. In January that year, Theresa had received a diagnosis of terminal cancer and her symptoms included declining cognitive function and difficulty walking. A doctor expected her to live only a matter of weeks to months.

On Feb. 6, when Theresa was reportedly weak and declining, Bruce shot her three times using a shotgun. Bagwell later said she had asked him each day for the previous five days to end her life.

Bagwell was intoxicated at the time and he willingly acknowledged what he did on phone calls to his father-in-law and sister-in-law. When police arrived, he repeatedly told them, unprompted, that he had killed his wife.

After prosecutors charged him with murder, Bagwell attempted to use the consent defense to justify the shooting. The government opposed the tactic, arguing that a person cannot consent to be murdered under state law and that a perpetrator could potentially avoid responsibility for murder by simply claiming their victim wanted it.

District Court Judge Lily W. Oeffler agreed with the government and Bagwell’s jury did not hear about the consent defense. 

On appeal, “Mr. Bagwell asserts that when an alleged victim is already dying from a terminal illness, suffering a deteriorating demise, and wants a loved one to end the suffering, the purported injury inflicted is not ‘serious’ as meant by the statute,” wrote Deputy State Public Defender Katherine Brien. Instead, “it is a wanted end, an act of human compassion and mercy.”

The Court of Appeals panel rejected Bagwell’s claim that mercy killings intended to end suffering are to be treated differently. The panel pointed out that Colorado already has a legal way to end suffering – the End-of-Life Options Act – which avoids the risk that a person can disguise an act of murder as a mercy killing.

“These considerations are particularly apt where, as here, the only evidence of Bagwell’s wife’s consent was from Bagwell, his wife was suffering cognitive decline, and her ability to freely and capably consent was not evaluated before her death,” Kuhn wrote.

The panel also addressed Bagwell’s other claim on appeal, that he had not voluntarily waived his right against self-incrimination when he told police what he had done. His attorney argued that because he was intoxicated, sick and upset during the interrogation, Bagwell’s statements were involuntary and should have been suppressed as evidence.

Oeffler, the trial judge, found police had neither forced nor threatened Bagwell to get him to speak, and observed that “we have a man who understood exactly what was happening.” The appellate panel agreed with her, concluding that any disorientation Bagwell exhibited during the interrogation was “understandable shock and torment” over killing his longtime spouse.

The case is People v. Bagwell.