People v. Drake

important point out that General I am say authorized to Assembly ERICKSON, J., was not without viable alterna- joins me in this which, view, my sufficiently tives would dissent.

distinguish type life-endangering proscribed by

conduct section 18-3-

102(l)(d) degree. murder in the second from legislature could example,

For have 18-3-102(l)(d)

amended section to state person

that a commits the crime of murder intentionally degree

in the first if he en- very

gages in conduct which its nature grave creates a risk of death to another Colorado, The PEOPLE of the State of engages in person persons, such Plaintiff-Appellee, manifesting under circumstances conduct disregard reckless of the risk that the con- result in the death of one or duct will more DRAKE, Richard Owen thereby persons, and causes the death of Defendant-Appellant. person. culpability another element of No. 84SA34. “intentionally” statutory context require objective would a conscious Colorado, Supreme Court of death, objec- cause rather a but conscious En Banc. engage very tive to in conduct which its death, grave nature creates a risk of Jan. 1988. conceptually distinguishable thus would be Rehearing Denied Feb. 1988. degree murder, requires from second which prac- an awareness that one’s actions are

tically certain to result in another’s death. Colo, Mingo, See 584 P.2d at admittedly

633. While this distinction be- acting intentionally respect

tween with acting knowingly respect

conduct and subtle,

to result is somewhat it is a distinc-

tion that is fundamental to the Colorado 18-1-501,

Criminal Code. 8B C.R.S. See §

(1986). Moreover, a further basis for dis-

tinguishing this form of homicide from degree

murder in the second added life-endangering

element that the conduct performed

must be under circumstances

manifesting disregard a reckless of the risk

that the offender’s conduct result in will persons.

the death of one or more

Because the 1981 amendment to section

18-3-102(l)(d) provide any fails to intelli-

gent permitting standard for dis- rational

tinction between extreme indifference mur- degree,

der and murder in I the second judgment

would affirm the of the district

court in both of these cases and hold that present definition of extreme indiffer- equal protection

ence murder violates

the laws under the Colorado Constitution. Const, II, Colo. art. § Woodard, Gen.,

Duane Atty. Charles B. Howe, Deputy Atty. Gen., Richard H. For- man, Gen., Sol. Robert Petrusak, M. Clement Engle, P. Attys. Gen., Asst. Den- ver, for plaintiff-appellee. Griff, Harmon, Harmon & Maurice J. Junction, Grand for defendant-appellant. Nugent, Massaro, Massaro & Nicholas R. Junction, Haddon, Morgan Grand & Foreman, P.C., Mueller, Norman R. Den- ver, for amici curiae American Civil Liber- ties Union and Colorado Criminal Defense Bar.

KIRSHBAUM, Justice. Drake, defendant, Richard Owen guilty by found of murder in the degree, first in violation of section 18-8- 8B C.R.S. in connection with wife, Regina the death of his Drake. After proceedings, further the trial court im- posed pursuant a sentence of death to sec- 16-11-103, (1978 8A tion C.R.S. & 1983 mid-December the defendant Supp.). appealed The defendant has telephoned James, his his brother a resident of pursuant Shreveport, Louisiana, conviction to section 16-11- asked James to 4(e), 103(7)(a) asserting Colorado, and C.A.R. that nu- come to and mailed him funds to errors purchase merous were committed the trial an airline trip. ticket for the guilt-innocence phase court both the James arrived in Grand Junction on Decem- sentencing phase Al- of the trial. ber and met with the defendant though agree we that errors were commit- that evening. The defendant asked James trial, phases ted in both we Regina neverthe- to kill in return for anticipated $10,000 jury’s guilty less affirm the verdict. How- proceeds from the life insurance ever, in policy view of the nature and extent of on her life. The defendant offered affecting sentencing phase the errors provide James keys with knife and proceeding, of the trial we apartment reverse the sen- occupied by the defendant imposed by tence the trial court and family. order and his agreed. James imposition of the alternative sentence 16,1982, On December the defendant left imprisonment. life apartment his at about 3:45 a.m. and was job

driven to his at the bakery by a friend. a.m., At 5:20 a Grand Junction Police De- THE I. BASIC FACTS partment operator telephone received a following summary of main events call, by police later investiga- established puts perspective into an overall the numer- Drake, placed by tion to have been James legal presented by appeal. ous issues indicating that a woman had been stabbed pertinent Other facts will be discussed in at the defendant’s residence. The call was addressing the course of those issues. tape public recorded and traced to a tele- wife, Regina The defendant and his phone located near a department local Drake, during had four children their mar- responding store. Police officers to the child, riage. youngest The girl, was Regina’s body, call discovered with numer- named Jennifer. wounds, apartment. ous stab in the Drake July purchased the defendant a.m., police At 6:00 about officers went policy a life insurance in the face amount bakery to the where the defendant was $5,000. Regina was the named insured. employed Regina and informed him that The pay insurer advertised that it would all trial, During had been murdered. Ser- twenty-four life insurance claims within geant James Hall testified that the defend- 18, 1982, hours. On November the defend- immediately ant threw his helmet to the $5,000 policy ant cancelled a life insurance floor, put his face in his hands and uttered that he owned on his life and increased the sobbing sounds when advised of his wife’s coverage covering Regina the policy to death, but shed no tears. The defendant $10,000. agreed accompany the officers to the station, police questioned. he where was During the fall of 1982 the defendant proposed marriage to a co-worker at the morning Later that James Drake tele- bakery employed. where he was He indi- twice, phoned apartment the defendant’s Regina cated that he would divorce if his asking speak ap- to the defendant. At proposal accepted. were proximately 2:00 that afternoon James 24, 1982, station, phoned police

On November Jennifer Drake Drake identified himself, distance, suddenly long calling died. Both the defendant and said he was Regina experienced great difficulty adjust- speak and asked to defendant. daughter. answering recognized to the loss of their officer call professed person defendant at times also to be voice as that of the who earlier had upset Regina’s reported Regina’s suspected he at what characterized as murder and accept inability originated locally. Jennifer’s call The de- death. initially year; denied that James fendant was the end of the and that the defendant Junction, subsequently but informed told he go Grand was should either into business staying James was at a the officers that with James or suffer consequences. local motel. The defendant said he go told James to Regina because, ahead and kill in view of motel, The officers went to the found instability her over daugh- the loss of their and, consent, his searched James his ter, she would not be able to handle his investigation room. That search and later death and he could better care for the near the motel resulted in the area remaining children. He stated that he mask, gloves, tags discovery of a ski sales agreed keys apartment leave the to his department from the store near the tele- in the mailbox front of his home when he phone booth from which earlier morn- left for work on December 16 and that he placed, boarding ing call had airline been gave James a knife. The defendant also passes, knife a Schrade brand with blood stated that at 6:15 a.m. on December 16 he matching sheath. stains it and James telephoned James and asked that hé be police Drake taken to the station and was Regina, killed instead of but that James During was searched. this search blood said it was too late. shirt, pants stains were found on his gloves belt and on the ski mask and taken April requested On the defendant an- from his motel room. other interview with Rentfrow and Stone. advisements, After he given proper was The defendant was arrested later that reduction in the amount of defendant's 17, 1982, day. On December he was for- discussed, bond was but the officials made mally charged with murder in the first promises no concerning that matter. The degree attorney appoint- and a defense defendant said that he wanted to make ed represent February him. On another statement and tell the truth. He plea guilty the defendant tendered a of not agreed that this statement could be record- charge. to the The trial court declined to ed. accept plea, plea and no formal of not

guilty was entered the case. April statement, In his the defendant stated that he called James and said he

On March the re- defendant “needed someone way,” paid out of the the quested meeting County a with the Mesa flight, cost of James’ and met with James Attorney. Investigators District Jack on December 14 in Grand Junction. He Rentfrow and G. Stone of the district attor- told Regina James the victim was to be and ney’s defendant, briefly office met with the agreed $10,000 pay to James from life in- but refused to discuss the case unless the policy proceeds surance if James would kill attorney’s presence. defendant waived his Regina. The defendant said he made this request, On March at the defendant’s arrangement Regina because could meeting second was held with Rentfrow handle and Jennifer’s Stone. The defendant was advised of death and because he wanted rights signed waiving his freedom. The and a form his defendant stated attorney’s that on presence. tape An December 15 he and audio was James final- interview, plan; gave made of ized the almost all of that that he James a knife the signed keys apartment defendant a written and left statement in the mail- day. box; and that he did not ask James to plan. abandon the

In his March 29 statement the defendant arranged trial, said he for his brother James to At which commenced December visit him in Grand Junction about the death objected partic- Jennifer; daughter of his ipation that at the meet- prospective jurors of several on ing the grounds defendant was informed that prejudice. James of bias and Many of had a people, “contract” to kill five objections During includ- were denied. ing defendant, both, Regina, case, portion before defense the defendant

1243 Although the circumstances sur- expert jury. as an psychologist a clinical called challenges certainly rounding these of the two two of neither establish that witness to results, investigators supported was different we would have made to the statements ex- direct that there was no clear abuse During defendant’s conclude truthful. trial court trial court discretion. of the witness amination by prosecutor objection an sustained proceed A defendant in a criminal the basis of seeking to establish question right a fundamental to a trial has reference to discus- expert’s opinion by en impartial; are fair and jurors who the defend- expert and between the sions right protected, is the trial court sure that that the court commented ant. The trial persons prejudiced or biased must exclude “weird,” and inter- expert seemed witness Abbott, jury. E.g., People 690 from the testimony of the witness rupted the direct Gurule, (Colo.1984); People P.2d of the defense attor- comments critical 1981); (Colo. People, P.2d 99 Nailor v. The trial court also ney’s performance. 612 P.2d 79 trial 200 Colo. request present the defendant’s denied challenge for cause of sustain a court must expert purportedly another testimony from “state prospective juror if there exists a analysis a voice indicated the effect that evincing enmity or juror mind in the bias was April statement that the defendant’s the state.” the defendant or toward not true. (1986). How 16-10-103(1)(j), 8A C.R.S. § the defend- discussions between After ever, pro if the court is satisfied court, the de- attorney and the trial ant’s impartial ver spective juror will render presence of the in the fendant was advised and the evidence according to the law dict testify. and his right not to He jury of his trial, person should not be admitted he would neverthe- attorney indicated that 24(b)(1)(X). Tri Id.; disqualified. Crim.P. jury told the testify. The defendant less discretion are afforded broad al courts untrue and April statement was prospec ruling challenges for cause to achieving given hope his had been denying such jurors, decisions tive testified that he jail. release from He also only when a challenges will be set aside Regina’s any way participate did not of discretion disclosed clear abuse murder. 737 P.2d People, Nunez v. record. guilty, returned a verdict Sandoval, (Colo.1987); 733 P.2d People v. by the trial court con- then instructed Russo, (Colo.1987); P.2d People v. Af- cerning penalty phase of the case. (Colo.1986); 672 P.2d People Wright, of further evidence ter the introduction (Colo.1983); Taggart, 621 People v. defendant, prosecution and the (Colo.1981). rec This standard P.2d 1375 aggravat- finding three returned a verdict only is the ognizes judge the trial that mitigating factors. The ing factors and no perform the critical officer able to judicial death, to imposed court a sentence trial by personal observation assessments 16-11-103, 8A C.R.S. section pursuant to prospective a credibility and demeanor of (1978 appeal fol- Supp.), and this & 1983 Sandoval, P.2d juror. E.g., People v. lowed. 319; 200 Colo. People, Nailor v. P.2d 79.

II. JURY SELECTION juror’s expression prospective A

PROCEEDINGS presence or indication of concern A. as to some facet preconceived belief some automatically mandate does not of the case that the trial The defendant asserts E.g., person for cause. exclusion of such challenges of certain court’s denial of his 319; Sandoval, People 733 P.2d People deprived him v. jurors for cause prospective 1375; People v. 621 P.2d impartial Taggart, v. right by a fair and of his to trial McCrary, ance, 549 P.2d 1320 Colo. the trial court’s refusal exclude the juror for cause applied constituted a clear The test in determin- abuse of discretion. juror prospective whether a should be person dismissed is whether the for cause challenge defendant’s third for The set any would aside bias or be able based on prospective cause bias a involved preconceived impar- and notion render an juror who had talked some of his tial on the evidence adduced verdict based concerning co-workers case. He stated given by at instructions he could particulars trial and the that not recall but that the talk 422; “rough,” had been People, court. Nunez v. 737 P.2d defendant would not have a chance if he (Colo.1986); People 718 P.2d 496 Vigil, v. workers, judged group were and Abbott, 690 People v. P.2d 1263. The trial that he “would sure hate be in [the prospective juror’s court consider prospective shoes.” juror defense’s] fairly assurance he or she can that and stated, however, also that he himself did impartially on the case. serve Nunez v. like to prejudge not he would 422; People, Sandoval, 737 P.2d v. weigh the facts on their individual merits 319; People Russo, 733 P.2d v. 713 P.2d and follow the trial court’s instructions. 356; People Wright, 672 P.2d statements, view of these the trial court’s prospective juror refusal excuse this Here, challenged defendant did cause not constitute clear abuse of prospective jurors ground three on the discretion. challenge bias. The first involved woman upset who stated was that she because B. presence murder had occurred During jury prospective selection all ju- juror children. prospective gave This con apply rors were who unable to the death flicting respecting statements she whether any case were excluded. The would be able to follow the trial court’s argues practice that this violated determining aggra instructions in whether right his under the sixth amendment to the vating mitigating circumstances were United States Constitution to a fair and present. Although the defendant’s chal jury. impartial persuaded We are lenge might for cause well have been sus argument. the defendant’s tained, that, we conclude view Here, prospective jurors in who grant wide latitude the trial court must be they dicated could not under cir ed in its of credibility assessment and de were, apply cumstances meanor, its could determination that she request of prosecutor, at the excluded apply set aside her beliefs the court’s for cause the trial court at the voir dire conscientiously instructions does not consti proceedings. defendant, stage of rely tute an discretion. abuse of ing solely on Grigsby Mabry, 758 F.2d Cir.1985), (8th asserts that such exclu challenge The defendant’s second right impartial sion his violated for bias woman involved a who stated that by ensuring ultimately em- although thought she at the outset had panelled unrepresentative was of a cross- she guilty, defendant was could set that However, community. section opinion aside decide the on the case Mabry reversed in Grigsby Lock evidence juror adduced trial. The indi McCree, hart v. cated that she she had a neu felt reached 1758, (1986). Lockhart, 90 L.Ed.2d 137 position tral respect to the defendant’s Supreme rejected the United States Court case, but also that stated she had had a petit juries the notion that must reflect the relationship awith man who beaten had composition community large of the and her personal and history might that this long-standing reaffirmed the rule that the possibly decision-making. her affect requirement applies only fair cross-section Again, that, Moreover, we jury panels cannot conclude on bal- to venires.

1245 require if erroneous that even the fair cross- reversal. He also Court observed requirement petit were extended to section improperly asserts that the trial court juries, the essence of a fair cross-section prejudice failed to recuse itself because of systematic exclusion of a “dis claim is the defendant, against improperly acted group,” as minorities or tinctive such racial advising presence women, entirely unrelated to for reasons jury consequences about group that ability of individuals within testify, defendant’s decision to and commit- juror particu in a perform to the duties of failing ted reversible error in to enter a McCree, 476 U.S. at lar case. Lockhart plea guilty formal of not in the record being at 1765. Par from S.Ct. the case. While we conclude that errors impermissible, prospective ju exclusion of committed, agree were we do not that ei- they that are un solely rors on the basis singly cumulatively require they ther impose able under circumstances guilt. reversal of verdict of legitimate the state’s death serves having single jury a interest that can A. impartially and

consider the facts consci law in the entiously apply the case at both The defendant contends that guilt-innocence sentencing phases sustaining objection trial court erred an McCree, capital of a trial. Lockhart v. 476 by prosecutor portions to certain (citing Gregg U.S. at at 1768 S.Ct. Keown, testimony of Dr. Michael a clinical Georgia, 428 U.S. S.Ct. psychologist expert called as an witness (1976) (joint opinion of Stew L.Ed.2d agree, the defendant. We but conclude JJ.); art, Stevens, Spaziano v. Powell and sufficiently preju that the error was not Florida, 468 U.S. dicial to warrant reversal of the defend (1984)).1 We conclude that the L.Ed.2d ant’s conviction. right trial defendant’s sixth amendment trial, argued At the defendant that his impartial jury was not in a fair and brother, Drake, James at all times acted fringed. Keown, exam- independently. Dr. who had III. THE DETERMINATION defendant, jury ined the informed the

OF GUILT opinion March in his the defendant’s 29 and investigators April 1 statements to Rent- argues The defendant that several evi- were dentiary rulings of the trial court were frow and Stone not reliable because cans, persons persons, argues young that exclusion of all and old white- 1. The defendant also laborers, prospective jurors irrevocably opposed to the and blue-collar collar executives "conviction-prone” Adopting jury concept in a results so on. McCree’s McCree, jury. likely require impartiality In Lockhart v. would also challenges, peremptory S.Ct. 90 L.Ed.2d 137 the United elimination of which argument Supreme rejected commonly States Court both the State and the are used empirical demonstrated that attempt produce jury studies have favor- defendant to jury jurors exclusion of such results in a more challenger. able to the that, likely 178-79,106 to convict. The Court also indicated McCree, U.S. at Lockhart assuming the existence of valid studies even at 1767 establishing juries likely that such are more argues im- The defendant that the trial court convict, require the Constitution does not jurors properly for cause be- excluded several composed precise jurors of a balance of of vari- opposition to the death cause of their views predispositions, only philosophical but ous guaranteed penalty, denying right, him his thus jurors jury composed of individual who indicate by the sixth and fourteenth amendments to the ability any preconceptions they set aside Constitution, impar- United States to a fair and on have and decide the case based the facts sentencing phase of tial at the the trial adduced at trial. As the Court stated: proceeding. argues the trial court He also challenges required improperly for cause re- true that the Constitution denied his it were [I]f jurors viewpoints specting on the several whom he characterizes a certain mix individual automatically judges required persons jury, who would vote then trial would "balancing” penalty. Sisyphean we reverse the de- undertake the task of the death Because grounds, juries, making we sure that each contains the fendant's death sentence other Republi- proper need not address these issues. number Democrats and they product dependent-sub- were the of a prosecutor proposed cross-examina- personality designed missive and were sim- tion by defense Buller, counsel of Carrie a ply please captors.2 his The defendant prosecution witness who had worked with jury asked Dr. Keown to tell the what the defendant at the bakery. On direct by made to him statements the defendant examination, Buller testified that in late in the course of his supported interviews 1982 the defendant asked her marry opinion. The trial court sustained the him, gave bracelet, her a and told her he prosecutor’s objection hearsay on the intended to Regina. divorce On cross-ex- 801(c). basis of CRE amination, the defendant asked Buller if Contrary apparent to the trial court’s she had ever been convicted of an offense. conclusion, the statements made the de- prosecutor The objected, jury was ex- fendant to Dr. Keown were offered into cused, prosecutor argued that al- thereof, evidence to establish the truth but though Buller had sustained a federal con- rather were offered to establish the basis viction, the offense was a misdemeanor opinion for Dr. Keown’s that the defendant felony, rather than a and therefore the fact dependent-submissive suffered from a per- of the conviction was not admissible for sonality Thus, they disorder. did not'con- purposes impeachment. The defend- hearsay 801(c). stitute evidence under CRE attorney, ant’s represented who had Buller opinion Dr. Keown’s that neither statement in the federal court proceedings, argued was reliable was consistent with the de- that because the conviction was for fraudu- case, theory fendant’s and the lent conduct it was Stating admissible. was entitled to evaluate the basis for that that “truthfulness is not an issue at this Thus, opinion. the trial court erred in sus- point,” the trial court objec- sustained the taining prosecutor’s objection to this tion. proposed testimony.

However, the defendant did not make an The trial court’s comment was in proof offer of to the accurate; trial court to establish the truthfulness witness for the precisely record Dr. what Keown always potential issue at trial. It is said, would permitted have had he been generally prior true that the fact of a felo testify. thereof, In the absence we cannot ny conviction is impeachment admissible as accurately estimate prejudice what the de- evidence, prior but that evidence of a mis fendant suffered from the trial court’s er- 13-90-101, demeanor conviction is not. § ruling. roneous The was informed of (1987); 6A Robles, C.R.S. Furthermore, Dr. opinion. Keown’s the de- Colo. 514 P.2d 630 In some situa fendant's testimony supported own the the- tions, however, such as when party seeks ory that neither of his two statements was to establish habitually that witness utters facts, believable. In view of these statements, untrue the circumstances sur considering weight of all the evidence rounding a misdemeanor conviction be indicating guilt, the defendant’s we do not jury. 608(b)3; disclosed to a CRE see Peo find the trial sufficiently prej- court’s error ple Mejia, 188 Colo. 534 P.2d 779 require udicial to reversal. (1975); People Armstrong, 704 P.2d 877 (Colo.App.1985).

B. Here, defendant contends that sug trial the defendant did not court in sustaining objection erred gest explore that he wished to the circum court, 2. The concerning defendant also testified his probative the discretion of the if making untruthfulness, reasons for those statements. inquired truthfulness or (1) into on cross-examination of the witness 608(b) 3. CRE states as follows: concerning his character for truthfulness or Specific Specific untruthfulness, instances of conduct. in- concerning the charac- witness, stances of the conduct of a for the ter for truthfulness or untruthfulness of an- purpose attacking supporting his credi- other witness as to which character the wit- bility, other pro- than conviction being of crime as ness cross-examined has testified. 13-90-101, may vided in proved by giving testimony, not be whether an ac- however, They witness, extrinsic may, evidence. by any oper- cused or other does not analysis. Although Truby Dr. had print con federal surrounding Buller’s stances defendant, ex- the he had he wished to never examined viction; only that he indicated recordings defendant’s tape convic fact of the amined jury of the inform the suggest April 1 statements. The March 29 did tion. The defendant objected this prosecutor controvert to the admission of the conviction would fact of the ground given by practice Bulle r —an the that the testimony testimony on any specific prohibi analysis specu- to the recognized exception voiceprint constituted too of other of a misde inquiry permit opinion of evidence field of tion of admission lative a impeach general thereon, for fur- testimony meanor conviction based and on the Sasson, 628 People v. purposes. testimony ment See would not ground ther People v. Terror (Colo.App.1980); response, P.2d 120 the defendant jury. the assist 476, 563 P.2d 363 nova, Colo.App. establishing proof of made an offer circumstances, the tri (1976). these that, Under testify according to Truby would Dr. in sus its discretion inflection, did not abuse al court in- defendant’s analysis, his objection to taining prosecution’s tonation, speech patterns and other charac- although the trial question, defendant’s teristics, tape record- as revealed ruling was for its stated reason court’s substantially similar on both ings, were therefore, that, inaccurate. occasions; either both or both state- accurate statements were ap argues on also The defendant false, in direct contradiction ments were effective assistance he was denied peal that March 29 theory that the prosecution’s counsel, amend of the sixth violation April 1 state- and the statement was false Constitution, be States ment to the United The defendant intended ment was true. representation attorney’s his defense cause testimony Truby’s Dr. to corrob- rely on trial created a during her federal of Buller that both opinion of Dr. Keown orate the restrict improperly conflict of interest they were unreliable because statements her concern ability to cross-examine ed his defendant’s simply products of the were of that conviction. circumstances syn- personality dependent-submissive support record to find no basis We that Dr. The trial court stated drome. attorney assumption that defendant’s only confuse Truby’s opinion “would fully explore the circumstances did not nothing of material add jury and it would because of conflict Buller’s conviction purposes.” practical all relevance ... contrary, To the interest concerns. that Dr. Tru- court’s conclusion The trial contained of that conviction public record testimony relevant to material by’s was not circum to illustrate the ample information pur- For in the case is incorrect. issues any infor resort to thereof without stances “having admissibility, evidence poses privileged. might have been mation that the existence any tendency to make Sullivan, 446 U.S. Cuyler v. See the determi- consequence to fact that is of (1980); United 64 L.Ed.2d S.Ct. probable or less action more nation of the Cir.), (10th Davis, 766 F.2d 1452 States been without than it would have probable 908,106 denied, cert. CRE is material evidence. the evidence” L.Ed.2d relevant Truby's testimony was 401. Dr. position that neither of defendant’s to the c. was reliable. his statements the trial court argues that The defendant trial, however, prosecutor At ob- prosecutor’s erroneously sustained discipline of voice argued in effect that Truby, a testimony Henry of Dr. jection to that Dr. Tru- infancy analysis is its with voice- linguistics specialist familiar credibility. only to against matters which relate privilege self-in- of his ate as a waiver respect to crimination when examined recognized was not expertise object did not by’s field of at trial to discipline sufficiently challenged. Therefore, established in the conduct here permit community scientific light conduct will viewed in testimony. opinion plain his The ac People, to consider error standard. Wilson v. ' analysis techniques (Colo.1987); curacy Barker, of voice has 743 P.2d People 415 v. 28, clinical challenged by (1972); several studies. 180 been Colo. 501 P.2d 1041 see Inbau, 52(b). A. Moenssens & F. Crim.P. See Scientific Cases, (2d 648-51 Evidence in Criminal tape recording A of April the defendant’s 1978). Many courts have refused to ed. 1 played statement jury. was the The analysis evidence on admit voice the defendant during asserts that references techniques ground analysis that voice con by interview to other criminal conduct the same inherent deficiencies that tain defendant and whether he have led, rejection general, poly of have children, any although had intent his to kill graph judicial test as evidence in results trial, objected not should been have Anderson, proceedings. People v. 637 See tape deleted from under our decision in (Colo.1981); 354 also P.2d see Barrel of (Colo.1984). Callis v. People, 692 P.2d 1045 Fun, Casualty v. Fire Inc. State Farm & (5th Cir.1984); Co., 739 F.2d 1028 United People, 305, In McRae v. 131 Colo. (N.D. F.Supp. Traficant, v. 566 1046 States 281 P.2d 153 this court concluded 1983); Ohio Neises v. Solomon State that when by a statement made a defend Bank, (1985); 236 P.2d Kan. 696 372 ant is admitted in a criminal case the entire Schouest, (La.1977); v. 462 State 351 So.2d Callis, statement is admissible. re we State, Md.App. v. 31 355 A.2d Smith jected rule, holding this that evidence of Ochalla, (1976); 285 527 State v. N.W.2d prior criminality not otherwise and relevant (Minn.1979); Tarsia, 683 v. 50 admissible not be should introduced even N.Y.2d. 427 N.Y.S.2d 405 N.E.2d though part of a defendant’s otherwise ad (1980); Makerson, N.C.App. State v. 52 Callis, however, missible statement. was (1981); Sabag S.E.2d 869 v. Conti expressly applicable only made to cases Dakota, nental South 374 N.W.2d 349 filed after the effective date of deci that (S.D.1985); but Simon Neustadt Fami cf. McRae, sion. Under rule announced in Center, Bludworth, ly Inc. v. N.M. trial, governed which no error was (1982). agree 641 P.2d 531 We with this committed. Therefore, line decisions. in view of the prosecution’s objection, defendant’s frequently This court has noted failure to technique establish that the used photographs relevant to issues by Dr. Truby sufficiently was reliable to criminal case are not rendered inadmissible support proposed his opinions concerning grim because their reveals content details justified the defendant’s statements the tri might upset or otherwise shock objection. al court’s decision to sustain People Mattas, trier of P.2d fact. (Colo.1982);People Steele, 193 Colo. (1977); People Hosier, 563 P.2d 6

D. Colo. 525 P.2d The color argues The defendant that'the trial court slides to defendant were which the refers in failing portions erred certain to excise opinions con pathologist’s relevant to the tape statement; recording April cerning Regina’s the cause death. admitting into certain evidence color plain trial court did commit error slides used pathologist per- who admitting into these slides evidence in Regina; formed the autopsy and in fail- objection absence thereto. ing to position impartiality maintain a throughout He asserts refers to com- trial. these er- several rors, singly cumulatively, require judge during ments trial rever- made which, sal his disagree. coupled conviction. We course of the trial when terrupted the defendant asserts fre- what the defendant’s examination of quent insinuating witnesses, use of a snide and man- including the direct examination defendant, ner psychologist directed toward the defense of a called the defendant. witnesses, counsel defense evidenced point When defense counsel at one at- prejudice animosity against such tempted clarify for the trial court a defendant that the trial court should have complex point regarding the basis of an voluntarily pro- recused itself from these expert opinion concerning witness’ the de- ceedings. Colorado Rule of Criminal Pro- disorder, fendant’s asserted personality 21(b)(2) provides “[a]ny judge cedure attorney, trial court told the defense “You disqual- who knows of circumstances which listen say you will to what he has to shall, motion, ify him in a case on his own keep quiet.” Additionally, will when the disqualify himself.”4 prosecutor’s objection proposed to the testi- mony of Truby, analyst, Dr. a voice parties in a criminal case sustained, initially the trial court indicated presided by are entitled to a trial over a testimony might that such be admissible bias, judge any prejudice free of or interest depending upon the contents of the defend- any party directed toward A witness. then, testimony, ant’s after the defend- but asserting part bias on the of a testified, again ant prosecu- sustained the judge judge trial must establish that the objection testimony. tion’s to the against had a substantial of mind bent him Botham, People or her. See v. 629 P.2d possible It is capture to (Colo.1981); Barnes, Carr v. reading from appreci a of the record a full (1978). Colo. 580 P.2d gestures ation of intonations and record clearly; must establish such bias significantly shape well the effect of com speculative mere statements and conclu by during ments made the trial court satisfy sions are insufficient to the burden attorney When perceives trial. a trial con proof. Barnes, Carr v. 196 Colo. bias, appears preju duct that to evidence 803; People, 580 P.2d v. Walker Colo. interest, dice or attorney should of (1952). 248 P.2d 287 perceptions course state such on the in record. The record this case does reveal in The record this case discloses several incidents of trial court comments to de incidents in which the trial court made dis- rude, fense counsel that were and some paraging remarks to defense counsel con- discussions with defense witnesses that evi cerning questions propounded to witnesses. denced irritation. Such and dis comments When informed that the defendant’s chil- avoided, especially cussions should witnesses, when potential dren were the trial in stated, presence jury. uttered of the in We presence jury, court of the “I however, say, seriously hope that the record as a that Mr. Drake will serious- cannot against whole establishes that bent of mind ly any consider further involvement of his However, attorney in the defendant or children this affair. I don’t his that warrants bias, finding indicating prejudice want to be understood as what I or interest against ought reject think he fense_” to do in his own de- the defendant. We therefore that, frequently argument. The trial court in- this We are also satisfied 21(b) you ought 4. Colorado Rule of Criminal Procedure think to declare mistrial and let governs proceedings when a defendant files a try thing right. us this judge ground motion for substitution of a on the The trial court declined to recuse itself from the prejudice point during or interest. At one appeal, case. On the defendant does not charac concerning ruling discussions the trial court’s terize this defense counsel as a statement rejecting testimony Truby, of Dr. the voice disqualification pursuant to motion for Crim.P. defendant, analyst offered as a witness 21(b), Estep and we do not so view it. See following defense counsel made the comment to Hardeman, (Colo. 1985); People 705 P.2d 523 the trial court: Johnson, (Colo.1981). P.2d you ought disqualify yourself. I think I you ought get off this case and think I cumulatively light reviewing when viewed court must determine wheth- whole, the record as a the errors that were er the defendant in fact knowingly and made the trial court its conduct of the intelligently waived this right. fundamental plain trial do not constitute error warrant- Mozee, (Colo.1986); 723 P.2d 117 of the defendant’s reversal conviction. People, Reed v. 171 Colo. 467 P.2d 809 Mozee, In we observed that an advisement of consequences

E. the nature and right testify to a defendant who The defendant asserts that the trial court chooses not to testify differs materially properly him failed to advise conse- right from an advisement of the to remain quences any testify decision at trial. silent to a testify. defendant who elects to specifically He claims that the trial court We noted that defense counsel has a re- conducting erred in the advisement in the sponsibility to advise the defendant of mat- jury, failing presence of the to warn the ters right associated with the to remain he could be defendant that cross-examined silent, and convictions, that on several concerning prior occasions be- failing tween arrest inform the defendant that if he elected not and trial the defendant testify could apprised be informed of right by this fundamental law failing that election and to state that judicial enforcement and officials. testify not testify decision to to was a case, the defendant stated that he had been ultimately decision to be made the de- right advised of his testify not to his himself. fendant attorney. The defendant’s trial counsel also indicated on the record that he as well Curtis, In People v. 681 P.2d 504 inquiries as the trial court had made of the (Colo.1984), strongly we recommended that prior defendant to the formal advisement any right testify advisement of the not to challenged. now In view of these circum- performed presence should outside the be stances, we conclude that the defendant’s jury. of the possible Because it is not to right waiver of the to remain silent was predict questions, explanations what effective. might during discussions occur such an ad visement, danger preju there is inherent of dice permitting defendant in F. Furthermore, present. to be it is also ex The defendant contends that the trial

tremely difficult to measure extent of failing sponte court erred in to insist sua any prejudice occurring in such circum upon entry guilty plea formal not a again stances. strongly We caution that failing in sponte steps to sua take any such advisement should be conducted mitigate the allegedly improper effect of an outside presence jury. of the question prosecutor asked during the cross-examination of the defendant. always danger

While there is a agree. do not that a We might defendant feel coerced into testifying when the trial court’s advise ment right of the silent is con remain initially When the defendant tendered a presence ducted in jury, nothing of the 8, plea guilty 1983, February of not on in this record indicates such factor rejected plea pending trial court deter- present in this In case. view of the defend mination of several motions the defendant ant’s testify, considering decision to plea again not filed. was tendered weight establishing of the evidence his and, objection, plea no formal without guilt, we find the trial court’s error to be guilty entered in not was ever the case. beyond harmless a reasonable doubt. See 52(a). Crim.P. (1987), 16-7-208, Section 8A C.R.S. plea if any provides

In no is entered challenging case the va lidity case, of a right pur- waiver of the for all testify, not to criminal “the case shall plea People be considered one which a poses Thompson, 198, 200, v. Colo. guilty Similarly, (1973). not has been However, entered.” 511 P.2d juve 16-7-203, (1987),provides 8A section C.R.S. proceeding nile proceed is not a criminal irregularities arraignment not ing, prior and a adjudication of delinquency affecting rights of substantial a defendant cannot be impeachment pur used for such objected and not to shall not “affect the poses. People Apodaca, See 668 P.2d validity any proceeding in the cause.” 941 (Colo.App.1982), part, rev’d on aff'd statutes, recognizing fully These while grounds, (Colo.1985). other 712 P.2d 467 right respond in defendant’s whatever In objection, the absence of an a lack of manner the defendant elects to crimi- good presumed faith will appeal, not be charge, designed nal are to ensure that seeking and a reverse a con convictions not overturned because viction improper prosecutorial because of irregularities arraignment proceed- inquiry prior into criminal conduct must ings. Here, any question never there was Ciari, demonstrate prejudice. People v. position, about the defendant’s stated on 325, 328-29, 189 Colo. 540 P.2d February the record on and never (1975); Lewis, 180 Colo. 426- altered, guilty that he not was (1973). 506 P.2d 126-27 The record charged purpose offense. view of here does support the defendant’s as statutory provisions these and the lack of that, sertion in light prosecutor’s any prejudice to the defendant from this knowledge of the defendant’s criminal procedural irregularity, we find no basis record, question they?” “What are for reversal of the defendant’s conviction in proposed in Nor bad faith. does the record this unusual circumstance. See Landford suggest that the defendant’s isolated vol People, 365 P.2d Colo. 893 untary juvenile reference adjudica to this cert, denied, tion prejudice resulted in substantial 8 L.Ed.2d 20 him. In the request by absence of the

defendant, duty the trial court had no to We, comment on jury. this issue to the 2. therefore, reject argument. this During of the defend- cross-examination by prosecutor, in response ant the to a prosecutor’s question any prior about felo- IV. TRIAL SPEEDY ny conviction, the defendant said he had The argues right defendant that his to been convicted of felonies. When two the trial, speedy by as established section 18- asked,

prosecutor are they?”, “What the 1-405, (1986), 48(b), 8B C.R.S. and Crim.P. defendant said one was extortion and Acknowledging was denied in this case. burglary. objection one was for No that he at no the requested time trial court interposed prosecutor’s question. to the speedy to lack of dismiss the case on trial However, defense counsel later informed grounds, argues his he that silence should trial the court that the extortion case had right. of not be deemed a waiver the He juvenile in fact been proceeding; no fur- further contends the failure that prosecutor reference was the ther made plea trial court to enter formal the extortion matter. The defendant during guilty makes the trial calculation of urges now prosecu- reversal because the speedy period the date from which the trial question, apparently on theory tor’s began impossible to run and excuses his the trial some duty court had to take any objection. argu- failure to The assert step once some the issue had been raised. is ment without merit. credibility of a defendant 18-1-405(5), Section 8 C.R.S. subject

who testifies in a criminal case is trial, impeachment by good during faith effect contained reference prosecutor felony following pertinent provisions: prior convictions. entitled to a dismissal under sub- To be V. SENTENCING PROCEEDINGS (1) section, section defendant The defendant contends that prior for dismissal to the must move imposed by death sentence the trial court of his commencement trial.... Failure must be reversed due to the trial court’s is a of the defendant’s to so move waiver failure to jury unambiguous instruct the rights under this section. terms that the respect verdicts with language, This as well as the almost identi- presence mitigating or absence of 48(b)(5), specifical- language cal of Crim.P. aggravating factors would be the sole ly provides the failure to move for determinants of whether the defendant prior beginning of the trial dismissal to the imprisonment would be sentenced to life statutory right. is itself a waiver agree. to death. We previously noted We have the trial sentencing appli- Pursuant to the statute guilty court’s failure to enter a formal not case, 16-11-103, cable to this section 8 C.R. plea plea must treated as if such had be (1978 Supp.), jury S. & 1983 when a verdict Certainly the from been entered. date guilty 1 felony returned a class right speedy trial which the defendant’s case, the trial court must conduct a sen- began in this could fixed no to run case tencing hearing to determine whether the February than earlier Whatever defendant should be sentenced to life im- might initiating date be selected as prisonment provi- or to death.5 Under this speedy period, trial the defendant’s failure sion, jury that determined timely objection pro- assert some to the the defend- guilt ceeding speedy special based on ant’s must trial considera- also return verdicts right. concerning presence tions constituted a waiver of that or absence of staf- fs) 16-11-103, (1978 evidence, hearing jury 5. Section 8 C.R.S. & 1983 After all the verdict, Supp.), provides: shall deliberate and render a or if jury judge finding no there is shall make a Imposition of sentence in class 1 felonies. as to the existence or nonexistence each of (1) Upon guilt conviction of (5), (5.1), set factors forth in subsections felony, of a class 1 the trial court shall con- (6) of this section. The existence of an separate sentencing hearing duct a to deter- aggravating proved by factor shall be mine whether the defendant should be sen- prosecution beyond a reasonable doubt. imprisonment. tenced to death or life (4) sentencing hearing If the results in a hearing judge shall be conducted the trial finding verdict or that none of the factors set practicable. before the trial as soon as If (5) forth subsection of this section exist and a trial or if was waived the defendant that one or more of the factors set forth in pleaded guilty, hearing shall be conducted exist, subsection of this section do judge. before the trial death, court shall sentence the defendant (2) sentencing hearing any In the informa- finding unless the verdict or is that sufficient any aggravating tion relevant of the or mitigating presented pursu- factors been have mitigating factors set forth in subsection (5.1) justify of ant to subsection this section to (5.1), (6) presented may or of this section imprisonment a sentence of life rather than defendant, by people subject either the or the finding death. In the event the verdict or is governing to the rules admission of evidence mitigating pur- on evidence based introduced trials; that, except proof at criminal in the of (5.1) section, suant to of subsection this (5) mitigating factors set forth in subsections writing trier of fact shall set forth in section, (5.1) and of this the rules of evidence mitigating factor or factors which were re- discretion, court, apply. shall not The in its garded justify as sufficient to a sentence of deny act to the admission of evidence imprisonment life rather than If death. repetitive. people that is The defend- sentencing hearing results in a verdict or find- permitted any ant shall be to rebut evidence ing aggravating that none of the factors set hearing given received at the fair shall be (6) forth in subsection of this section exist or opportunity present argument as to the mitigating that one or more of the factors set adequacy of the evidence to establish the ex- (5) of section forth subsection this do exist any istence of of the factors set forth in sub- pursuant or that evidence adduced to subsec- (5), (5.1), (6) section or of this section. Noth- (5.1) justifies imposi- tion of this section ing (2) in this subsection shall be construed to imprisonment tion of a sentence of life rather any death, authorize the introduction of evidence court the de- than shall sentence obtained in violation of the constitution of imprisonment. If the fendant to life sentenc- ing hearing state or the constitution United of the is before a and the verdict is unanimous, discharged, States. shall be institution, penal of a or correctional and the court shall sentence the defendant to killing subsequent such occurred to his con- imprisonment. 1, 2, life felony viction of a class or 3 and while (5) impose The court shall not the sentence serving imposed upon pursu- a sentence him sentencing thereto; of death on the defendant if the ant or hearing finding results in a or verdict that at (c) intentionally person He killed a he officer, the time of the fireman, offense: peace knew to be a or correc- (a) age eighteen; He was under the of or "peace tional official. The term officer” as (b) capacity appreciate wrongfulness His only regularly used in this section means of his conduct or to conform his conduct to appointed police city, officer of a of marshal requirements significantly town, sheriff, undersheriff, of law was im- deputy or sheriff paired, impaired but not so officer, to constitute a county, patrol agent of a state or of prosecution; defense to or investigation; the Colorado bureau of or (c) He was under unusual and substantial (d) intentionally person He killed a kid- duress, although not such duress as to consti- napped being hostage by or held as a him or prosecution; tute a defense to him; or by anyone associated with or (d) offense, principal He was a in the (e) which party agreement He has been a to an another, by partic- was committed but his person kill another in furtherance of which a minor, ipation relatively although killed; not so person intentionally has been or prosecu- minor as to constitute a defense to (f) lying He committed the offense while tion; or wait, ambush, explosive from or use of an (e) reasonably He could not have foreseen incendiary para- or device. As used in this that his (f), conduct the course of the commis- graph explosive incendiary or device sion of the offense for which he was convict- means: cause, grave ed would or would create a risk (I) Dynamite high and all other forms of causing, person. death to another explosives; (5.1) mitigating In addition to the (il) bomb, factors missile, Any explosive grenade, (5) section, set forth in subsection of this device; or similar or any trier of fact shall hear other factors bear- (III) Any incendiary grenade, bomb or fire question mitigation. on the bomb, Such device, including any or similar device include, to, factors but are not limited which consists of or includes a breakable con- following: including liquid tainer a flammable or com- (a) The emotional state of the defendant at pound, which, composed and a wick material committed; the time the crime was ignited, capable igniting when (b) any significant prior The absence of liquid compound, such flammable or and can conviction; acting be carried or thrown one individual (c) coopera- alone; The extent of the defendant’s or agen- tion with law enforcement officers or felony (g) or 3 He committed a class prosecuting cies and with the office of the and, furtherance of such in the course of or in attorney; district therefrom, flight he intentional- or immediate (d) alcohol; drugs The influence of or person ly one the death of a other than caused faith, mistaken, (e) good although be- participants; or lief the defendant that circumstances exist- offense, (h) he In the commission justification ed which constituted a moral knowingly grave risk of death to created a conduct; the defendant’s person to the victim of the another in addition (f) age of the defendant at the time of offense; or crime; commission of the (i) espe- the offense in an He committed (g) continuing The defendant is not a threat cruel, heinous, depraved cially manner. society; (7)(a) of death is im- Whenever a sentence (h) Any other evidence which in the court's provi- upon person pursuant posed to the opinion question mitigation. bears section, supreme shall sions of this court (6) If no factor set forth in subsection sentence, having propriety of that review the present this section is ifor the trier of fact offense, regard the the char- to the nature of regard any does not gating as sufficient other miti- offender, public the acter and record of the justifying factor or factors as sen- interest, the sen- and the manner in which imprisonment, tence of life the court shall including sufficiency imposed, tence was sentence the if defendant to death the sentenc- accuracy it of the information on which and ing hearing finding results in a verdict or that: . procedures employed to be was based. The (a) previously The defendant has been con- provided by supreme the review shall be as state, any victed a court of this or or other rule. court States, of the United of an offense which imprisonment (b) sentence of life or was A sentence of death shall not be im- imposed under the of this or posed pursuant supreme laws state could to this section if the imposed have been of under laws this court determines that the sentence was im- state if such offense had state; posed passion preju- occurred within under the influence of or arbitrary or any dice or other factor or that the (b) He killed his victim or presented support intended anoth- evidence does not the find- er, any place aggravating at within or without the confines ing statutory of circumstances. utorily mitigating, sentence; defined additional miti- that a verdict mitigating gating aggravating regarding and factors mitigating circumstances, additional or a the offender and the circumstances sur- verdict of aggravating circumstances, no rounding If jury the offense. finds necessarily requires imposition of a presence mitigating more of one or or addi- imprisonment; sentence to life and that factors, mitigating tional finds the ab- under no circumstances does the court factors, aggravating sence of the trial have discretion pen- on the matter of court must sentence the defendant life alty. imprisonment. jury If the finds an absence Durre, People v. (footnote 690 P.2d at 174 any mitigating mitigating or additional omitted). presence factors and also finds the of at in Durre the well es- acknowledged We factor, aggravating one least the court requirements tablished jury that a criminal must sentence the defendant to death. express must its decision in terms devoid of Durre, In People v. (Colo. 690 P.2d 165 ambiguity, People Durre, v. 690 P.2d at 1984), this court concluded that under the Yeager People, v. (citing 405, 170 Colo. provisions 16-11-103, of section 8 C.R.S. (1969)), 462 P.2d 487 and that a criminal (1978 Supp.), & 1983 a death sentence im “convey beyond verdict must a reasonable posed by a trial court must be reversed meaning doubt and intention of the jury where the that returned verdicts on jury,” People Durre, v. 690 P.2d at 173 mitigating aggravating and circumstances Colo, (quoting Yeager People, 410, adequately was not informed of the effect 489, 462 P.2d at Kreiser v. Peo- citing and question of such on the ultimate verdicts of ple, 20, (1979); 199 Colo. 604 P.2d 27 John- imprisonment life Although or death. People, son v. 75, 174 Colo. 482 P.2d 105 court in Durre trial orally ju advised the (1971)). holding grounded Our firmly sentencing rors at the hearing outset upon the need to certainty ensure and relia- their decision as to existence of verdict, bility in a criminal a need implicit mitigating aggravating factors would standard, the reasonable doubt upon “determine what should be im the enhanced need for certainty and relia- posed,” the trial court did not inform the bility imposing appropriate punish- jurors of the effect of their verdicts on the case, capital ment in a requiring careful life or death of the defendant. Id. at 174 n. scrutiny by virtue of unique severity recognized We that a verdict form irrevocability permissible pun- required which jury to determine Durre, ishment. 690 P.2d at 173 whether there mitigating were additional Stephens, Zant v. (citing 862, 462 U.S. justify factors imprison sufficient life 2733, (1983); 77 L.Ed.2d 235 Califor- might interpreted ment well merely Ramos, nia v. 463 U.S. 103 S.Ct. vesting role, advisory with an (1983); 77 L.Ed.2d 1171 Eddings v. Okla- retaining the trial respect court discretion homa, 455 U.S. 102 S.Ct. 71 L.Ed. People v. imposition penalty. Ohio, (1982); Lockett v. 2d 1 438 U.S.

Durre, 690 P.2d at 174. We held: (1978) (plural- 98 S.Ct. 57 L.Ed.2d 973 Carolina, any uncertainty order to eliminate ity opinion); Woodson North

[I]n part jurors regarding the effect of 49 L.Ed.2d 944 their verdicts punishment, on the issue of (plurality opinion)). We noted as trial courts at the conclusion of the evi- well Assembly, by the General man- dentiary stage capital sentencing verdicts, of a dating unanimity had rec- hearing jury by ap- must inform the ognized certainty the need for and reliabili- propriate instruction ty that verdicts of no in the decision in criminal trials in mitigating and no mitigating general additional capital sentencing and in verdicts Durre, particular. People circumstances and a verdict of one or in 690 P.2d at more aggravating (citing 16-11-103(4), (1978 circumstances neces- 8 C.R.S. & § sarily require imposition the Supp.)). of a death case, gave agencies In the trial court no ad- ment or this officers with the role respecting prosecuting the at the office of the visement district attor- sentencing hearing. ney; of the drugs alcohol; commencement the influence of or sentencing faith, hearing good mistaken, of the the although At the conclusion belief following gave trial the the the court critical Defendant that circumstances ex- jury: isted justifica- instructions to the which constituted a moral tion conduct; for the Defendant’s the INSTRUCTION NO. age of the Defendant at time the of the in The Defendant this case has been crime; commission of the and whether found guilty of the offense of murder in any bearing other relevant evidence degree. the your duty first It is now question mitigation the justi- exists to finding of mitigating make a whether fy imprisonment. sentence of life not, if circumstances exist and whether find, however, you Should that none of aggravating circumstances have been exist, mitigating above you factors proven beyond a reasonable doubt. In shall if proven determine have determination, arriving you this at any aggravating beyond factor a reason- should all of consider the evidence Therefore, able doubt. if: consider presented sentencing trial and (1) party The Defendant has a been hearing. agreement an to kill person another determining if mitigating factors ex- person furtherance of which a has been ist, following: consider the killed; intentionally or (1) age Defendant was under (2) offense, In the commission eighteen; or knowingly Defendant created a (2) capacity appreciate His grave person risk to another wrongfulness of his or to con- conduct offense; victim addition to the of the or form his to the requirements conduct (3) He committed the offense significantly law impaired, was but not heinous, depraved especially cruel or impaired so toas constitute a defense to manner. or, prosecution; (3) He was under and sub- unusual duress, although

stantial not such duress INSTRUCTON NO. as to prosecution; constitute defense to or you You are instructed do not offense, principal He was necessarily have find the existence of another, which was committed but his mitigating aggravating either or circum- minor, participation relatively al- case, you stances in and if so deter- though not so minor as to constitute a mine, sign foreman should ver- or, prosecution; defense to checking any dict form without of the boxes. (5) He have reasonably could fore-

seen that his conduct the course of the instructions, substantially These similar to commission of the offense which he Durre, given in inform those did not cause, was convicted would would cre- respecting aggravat- jury decision grave ate a causing, risk of death to mitigating circumstances necessar- person; another ily whether the im- determined

(6) Additionally, you imprisonment life posed consider the would be death. following: No. 2 the emotional state of the De- Instruction advised While fendant at time the was com- there was evidence of crime consider whether mitted; significant mitigating justify additional factors to absence convictions; prior imprisonment, it failed to extent De- sentence of life its cooperation fendant’s enforce- inform the effect of verdicts. law ( ) Durre, party The has these di- A. Defendant a been instructions Like the that, agreement person to kill the fact to an another to obscure tended rections person has sentencing procedures under in furtherance of which a other unlike killed; Code, or, intentionally been Colorado Criminal authority respon- only jury had ( ) In the B. commission of the of- possible two which of sibility to determine fense, knowingly the Defendant cre- imposed upon the de- would be sentences grave death ated a risk of to another fendant. person in addition to victim offense; or to the jury, submitted

The verdict form Durre, submitted in stated similar ( ) The committed the C. Defendant follows: as heinous, in an cruel especially offense depraved manner. or

We, having Jury, considered all of evidence, of find the existence one or IF OF ABOVE YOU CHECK ANY THE following mitigating of factors: more FACTORS, YOU AGGRAVATING PROCEED TO ANY ( ) under the MUST CONSIDER A. The Defendant was OTHER MITIGATING FACTORS. age eighteen; or ANY IN- MAY CONSIDER FACT YOU )( capacity appreciate the B. His BUT LIMITED TO THE CLUDING NOT or to wrongfulness of his conduct con- FOLLOWING, IN DECIDING WHETH- requirements conduct form his A LIFE IMPRISON- ER SENTENCE OF significantly impaired, of law but was MENT RATHER THAN DEATH IS impaired so constitute a de- not JUSTIFIED: or, prosecution; fense to We, Jury, having considered all of ( ) and sub- C. He was under unusual evidence, mitigating one or find more duress, although not such du- stantial im- justifies of life factors the sentence pros- ress as to constitute a defense prisonment than rather death: ecution; or ( ) The the De- A. emotional state of ( ) principal D. in the of- He was the crime was com- fendant the time fense, by anoth- which was committed mitted; er, relatively participation but his minor, although so minor as to not ( ) significant B. The absence of or, prosecution; constitute a defense to Defendant; prior conviction of the ( ) reasonably not have E. He could ( ) The of the Defendant's C. extent foreseen his conduct in the course cooperation law offi- enforcement of the offense for commission agencies, cers or and with the office cause, which he was convicted would attorney; prosecuting district grave risk of create caus- would ( ) The influence of alcohol or D. ing, person. to another drugs; IF ANY THE YOU CHECK OF FORE- ( faith, ) good though The mistak- E. GOING, NEED PROCEED YOU NOT by the Defendant that circum- en belief FURTHER, IF OF THE BUT NONE constituted stances existed which CHECKED, YOU BOXES ARE MUST justification for the Defendant's moral TO THE FOLLOWING SET PROCEED conduct; YOU OF NEED CIRCUMSTANCES. ( ) age The the Defendant at the F. THE NOT CHECK ANY OF FOLLOW- crime; time of the commission BOXES, IF FIND ING BUT YOU ONE ( ) a continu- G. Defendant THE OR MORE OF FOLLOWING CIR- society; threat CUMSTANCES, THE APPROPRIATE ( ) Any bears H. other factor which BOX BE CHECKED. SHOULD mitigation. question on the We, Jury, having considered all of evidence, aggravat- here none of the first set find one more found all three mitigating present, factors found ing factors: see, id.; e.g., Stephens, Zant v. aggravating present the factors and of 462 U.S. of present 862, found the miti- 890, 2733, 2749, none additional 103 S.Ct. 77 L.Ed.2d Eddings Oklahoma, gating might justify v. factors sen- 235; which 104, 455 U.S. imprisonment. of life tence verdict 869, 1; Lockett v. 102 S.Ct. 71 L.Ed.2d form, however, Ohio, not advise jury did the 586, 2954, 438 U.S. 98 S.Ct. 57 L.Ed. its more verdicts constituted than a mere Gregg v. Geor 2d (plurality opinion); 973 sentencing recommendation in with discre- gia, 428 U.S. 153, 2909, 96 S.Ct. 49 L.Ed.2d accept in jury’s tion the trial the court Texas, Jurek v. (1976); 262, 428 U.S. area, conclusion. In so critical an in- the 2950, (1976) (joint opin L.Ed.2d 929 forms structions and verdict must inform Stewart, Powell, Stevens, JJ.); ion of and jury unambig- of role in the its ultimate Carolina, Woodson North v. 280, 428 U.S. uous terms. 96 S.Ct. 944 (plurality L.Ed.2d opinion). sentencing Because the authori reposes Section 16-11-103 no dis ty, in case jury, clearly this the was not and in court respecting cretion the trial the Durre, unambiguously apprised by any instruc imposition of sentence.6 jury tions or verdict of forms its role as P.2d at 171. While there is no constitu the sole of arbiter whether a sentence of right sentencing in jury tional Florida, proceeding, Spaziano v. imposed should be upon the defend capital ant, inescapable we find 457-65, the conclusion 104 S.Ct. 3160- speculation doubt or (1984), exists as to whether sentencing 82 L.Ed.2d 340 appropriate “death is the authority, punishment judge jury, whether it be Woodson North specific case.” weigh any aggravating must at a minimum [this] Carolina, 428 U.S. at mitigating present and con 96 S.Ct. at 2991 factors and See also State v. whether, (plurality opinion). sciously light decide those of Ramseur, factors, (1987) appropri a sentence of death is the 106 N.J. 524 A.2d 188 offender, (death particular ate sentence for that sentence reversed where trial (A) Assembly aggravating 6. The General § amended 16-11-103 At least one factor has been version, applicable proved; in 1984. The amended and 1, 1984, July (B) mitigating offenses or after see committed on There are insufficient factors 12, 1984, approved April outweigh Act aggravating ch. § factor factors 491, 495, unequivocally proved. Colo.Sess.Laws delin- that were jury (c) eates the roles of the and the trial as court jury’s In the event that verdict is to death, follows: sentence such verdict shall be unani- upon binding shall (2)(a) mous and be the court hearing After all and the evidence determines, court unless the and sets forth in arguments prosecuting attorney and defendant, writing the basis and for such deter- reasons jury shall deliberate ren- and mination, jury clearly that the verdict is upon following der a verdict based consid- weight contrary erroneous as evidence, of the' to the erations: (I) in which court shall sen- aggravating case the Whether at least one factor imprisonment. proved has tence the defendant to life been enumerated as in subsection unanimous, (6) section; (d) of this If verdict is not (II) mitigating jury discharged, shall and the court Whether sufficient factors imprison- outweigh any aggravating exist which shall sentence the life factor defendant to exist; or factors found to and ment. (III) (3) subpar- sentencing all Based on the considerations in cases where hear- alone, (I) (a), agraphs (II) paragraph and of this held before the court the court whether the defendant should be sentenced to shall determine whether defendant should imprisonment. imprisonment death or life be sentenced death or life (b)(1) jury aggravating In the event that no the same manner in which a determines (a) (b) paragraphs factors are to exist as its verdict under and found enumerated section, (2) (6) jury subsection shall The sentence subsection this section. by specific imprisonment, supported render a life shall be verdict of the court upon findings court shall im- the cir- sentence defendant to life written fact based (5) prisonment. cumstances set forth in subsections (II) upon records of the shall not render a verdict of this section and writing sentencing hearing. specifies death unless it finds and trial 16-11-103, that: 8A C.R.S. § any guidelines do left without as to what to have court’s instructions not to do. This is a responsible for decid and what law impression it was passed here in our and this sentence). state ing defendant’s through up system case has come Mississippi, Relying on Caldwell obviously it and has been looked at and 86 L.Ed.2d gone through has this Court. You have argues that cer- also the defendant guilty a determination of and now made prosecutor by the so comments made tain stage particular proceed- at this responsibili- of jury’s sense diminished ings, you are to make a factual determi- sentence is of his death ty that reversal on the evidence here and nation based counsel, Caldwell, defense In mandated. there, goes it from I where will elab- capital sentencing closing argument at a trying I orate. am not minimize the jury mercy asked the to show proceeding, responsibility you that have but I would gravity and awesome- emphasized the and you responsibil- it is remind that a shared deciding responsibility in jury’s ness ity and that is our law here in the State In impose a sentence. death whether of Colorado. “Now, argued, response, prosecutor attorneys for the would have defense] [the Now, you that has told counsel] [defense you’re going to kill this you believe that penalty is final. Indeed it is death they your that they man and know know— happened Regina is also but what God, My is not the final decision. decision coming final. There is no back from job re- you can be? Your is how unfair appeal There is no from that. that. Overruling They it.” an viewable. know counsel, objection by defense the trial court stated, jury proper “I think it that again you I like to remind that would automatically

realize that it is reviewable you responsibility. what have is a shared as the death commands.” This is the law our state that was added, prosecutor you decision then passed. “[T]he This You are not alone. case automatically render is reviewable for of would not be here but the actions Supreme Court.” The United States Su- police and it not be here but would sentence, preme Court the death prosecution vacated for the actions of the and we holding reliability for in the asking your findings that the need for are during imposition you of a death sentence mandated told the voir fact and were dire, constitutionally you directly do not administer this. the conclusion that “it is goes job you That to the Court and are impermissible sentence on a to rest a death process anybody part of the and don’t let determination made a sentencer who your decency against you say that use responsibili- has been led to believe that the it, you did but did it? who ty determining appropriateness death rests the defendant’s elsewhere.” are, course, susceptible These comments 472 328- Mississippi, Caldwell v. U.S. at Thus, interpretations. high- it of several 30, 105 86 L.Ed.2d 231. S.Ct. ly likely injected that these remarks jury. element of confusion for the Without Here, prosecutor made the fol court, they may clarification from the trial argument lowing during closing comments have resulted in a diminution of the well sentencing proceeding: at the jury’s responsibility sense of for the ulti- just you I remind that it is a would imposition mate of sentence at the critical you responsibility shared have. stage proceedings in the when considera- just fly anywhere appropriate punishment This does not out tion of the was the immediately People you suddenly E.g. have to decide that task at hand.7 342, Court, capital prospective jurors ques- Colo. 546 case could v. District 190 regarding their views on P.2d 1268 concluded that in a tioned on voir dire this court cert, Perez, denied, discuss), I11.2d 90 Ill.Dec. could not 474 U.S. (1985) (although judge (1985); N.E.2d trial L.Ed.2d 178 Frye Commonwealth, also see jury prosecutor mentioned that would “rec- 231 Va. impose (comments penalty, ommend” whether death 345 S.E.2d 267 judge prop- no reversible error where trial prosecutor judge jury’s and trial ver- erly jury that court no required instructed had dict was mere recommendation re- cert, de- regarding sentencing), discretion versal death sentence where re- statute nied, ferred verdict as a recommenda- Clark, State (1986); provided L.Ed.2d only upon tion but also good (La.1986) (death So.2d 862 sentence set cause shown could trial set aside a court prosecutor’s lengthy because of ref- impose aside verdict of death lesser appellate erence to automatic review of of life imprisonment). We must Bak- Commonwealth v. sentences); comments, by implying conclude that such er, (1986) (death only 511 Pa. 511 A.2d 777 had an indirect or adviso- prosecutor’s sentence where com- ry reversed role rather than the ultimate role in the during penalty phase concerning imposition sentence, ments and, of improper were “appeal appeal” appeal although after after tended dispositive, not constitute an addi- jury’s responsibility); to minimize sense of casting upon tional factor doubt the relia- South, v. State bility 285 S.C. of in S.E.2d the sentence this case.8 In view (death upheld circumstances, sentence the basis of all these the absence of unambiguous that trial court’s and instructions defense instructions adequate and arguments adequately clearly advising counsel’s dealt with jury verdict forms of prosecutor’s improper comment that there responsibility determining its absolute in safeguards system imposed requires were in the which he the sentence be rever- capital punishment. approved This court also we conclude that the formal instructions and following ante-voir dire instruction: impermissible ambiguities verdict forms created trial, sentencing phase In the event that the defendant is found at the of we critical charge guilty charged [description as in of in need not determine this issue in this case. To indictment], information or there will follow during the extent that the trial court’s comments hearing jury. before Evi- second the same proceedings the voir dire introduced additional may hearing. dence be introduced at At ambiguity jury’s at the of outset the trial hearing ques- the conclusion of the certain role, understanding sentencing of its that ambi- jury be tions will submitted to the to take to guity only by could have been enhanced response. room for and deliberation closing arguments instructions and oc- that questions After these have been answered just prior curred to the commencement of and, depending upon pre- the answers as jury’s sentencing deliberations. law, judge scribed will sentence imprisonment either to life defendant constitutionality express opinion 8. We no on the death. accurately of instructions comments which judge dependent The sentence of the will be sentencing post- applicable state the law and and, upon the answers of the while the sentencing procedures but nonetheless jury may fully not be as to the effect advised jury’s sentencing of tend to diminish the sense answers, any particular group of answer or of responsibility. Mississippi, 472 See Caldwell v. right People and the have the defendant (1985) U.S. (O’Connor, 105 S.Ct. 86 L.Ed.2d 231 you prospective jurors ap- examine propriate within J., Ramos, concurring); your capital views on limits as California L.Ed.2d 1171 103 S.Ct. punishment. Colo, Court, statutory requirement (upholding People District Here, capital sentencing juries gover- P.2d be at 1271. the trial court’s ante-voir informed that comported ap- dire proved imprison- instructions with those nor could commute a sentence of life in District trial possibility Court. The parole ment to a sentence without during court also made numerous comments possibility parole); State v. included proceedings the voir dire to the effect that the Driscoll, (Mo.) (permissible for 711 S.W.2d 512 indirectly sentencing in jury would involved prosecutor judge final has state trial only questions and would answer certain but capital such decision in because statement case actually impose penalty. would not the death judge to is trial accurate where statute allows urges that these statements cert, — denied, U.S.-, punishment), reduce impermissibly jury’s trial court diminished the 93 L.Ed.2d 301 responsibility sentencing. sense Because analysis present

sal of the sentence to entered statute and his con- trial court. clusion that the statute is constitutional. I

cannot, however, join Justice Vollack’s dis- sent because decision in of our Durre. VI. CONCLUSION reversing necessity view ROVIRA, Justice, concurring part death, not sentence to we should and do dissenting part: arguments that cer- reach the defendant’s portions of section 16-11-103 violate tain I judgment concur in the of the court judgment constitutional standards. The affirming guilty join the verdict of affirmed, judgment of sen- conviction is Justice Vollack’s dissent as to the tence to death is reversed and the case phase. uphold Because I would remanded to the trial court with directions death, separately verdict of I write on the alternatively to enter the authorized sen- question pqp- of whether Colorado’s death imprisonment. tence of life alty statute is constitutional in order to specifically

more address the constitutional arguments made the defendant. ERICKSON, J., specially concurs. VOLLACK, JJ., concur ROVIRA and I. part part. and dissent The defendant contends that the death ERICKSON, Justice, specially process statute violates due concurring: punishment. constitutes cruel and unusual Const, II, 20, Colo. art. He further §§ opinion by I concur with the written Jus- 16-11-103(5), contends that section 8 C.R.S. Kirshbaum, specially tice but concur be- (1978), impermissibly vague ambigu- separate cause of two dissents which ous and thus fails to meet the minimal constitutionality of address the the death requirements certainty of clarity man- guilt phase penalty. The record of the process dated due of He also law. errors, contains numerous none of which argues 16-11-103(4), that section 8 C.R.S. individually collectively constitute re- (1979 Supp.), process violates due of law penalty phase versible error. The death of require prosecution because it does not case, however, require does reversal disprove mitigating circumstances be- during because of errors committed yond a reasonable doubt. phase Accordingly, under the trial. case, uphold facts of this I cannot the sen-

tence of death. A. view, Durre, In my People 690 P.2d v. The modern penalty legisla era of death (Colo.1984), requires

165 reversal of the adjudication began tion and in 1972 when penalty. agree death I with the Durre Supreme Court, the United States in Fur analysis majority opinion, set forth in the 238, Georgia, man v. 408 U.S. 92 S.Ct. separately express my but write view 2726, (1972), 33 L.Ed.2d 346 held that the 16-11-103, (1986), that section 8A C.R.S. Georgia penalty death statute violated the does not from the same eighth suffer infirmities and fourteenth amendments predecessor us to declare the caused United States Constitution. The five Jus penalty death statute to be unconstitutional supporting tices this conclusion each wrote Court, 401, People 196 Colo. v. District separate opinion a explaining his views. A (1978). 586 31 In v. P.2d District reading opinions of these indicated the Court, pointed we out the infirmities penalty death per was not unconstitutional statute, penalty se, but, rather, death which General the manner in which the Assembly by enacting being imposed corrected section 16- death sentence was im was agree permissible. 11-103. I Justice Vollack’s

1261 Furman, legislatures a As result application relevant eighth states, Colorado, amendment; thirty-five including and a penalty must accord dignity Congress and the en- with the of man the United States which is a basic concept underlying eighth legislation permit- acted reenacted which amendment. penalty imposed. ted the death to be See also Justices stated require- 153, Gregg Georgia, v. 428 U.S. 179 nn. eighth ments of the amendment must be 23-24, 2909, 23-24, 96 S.Ct. 2928 nn. 49 applied with an awareness of the limited legisla- L.Ed.2d 859 The Colorado courts, and, role to played by Be statute, adopted subsequently ap- ture a [Tjherefore, assessing punishment a proved by people, a vote of the re- which selected a democratically leg- elected quired aggravat- the fact finder to consider against islature the constitutional mea- mitigating factors as basis for a sure, presume validity_ we its And a arriving decision as to what heavy burden rests those who would imposed in first-degree should be murder judgment attack the representa- 52, 4, 16-11-103, case. Ch. sec. § people.... tives a democrat- “[I]n 251, Colo.Sess.Laws 252.1 society legislatures, courts, ic are respond constituted to to the will and 1976, Gregg Georgia, Court consequently the moral values of 153, 2909, 428 U.S. S.Ct. L.Ed.2d 859 people.” (1976); Florida, 242, U.S. Proffitt (1976); S.Ct. 49 L.Ed.2d 913 Jurek v. Gregg at 96 S.Ct. at 2926. Texas, 428 U.S. S.Ct. L.Ed. plurality opinion concluded that the (1976); 2d 928 Woodson North Car- punishment is not a form of olina, 49 L.Ed. imposed, never but to the (1976); Louisiana, 2d 944 and Roberts v. contrary position took pen- that such a 49 L.Ed.2d 974 alty permissible was if the statute set stan- constitutionality considered the guide dards to and control the exercise of penalty procedure the death in those five sentencing authority. discretion case, states. In Gregg, which the lead Further, procedure adopted by should be divided, again the Court was but it was on the which fact finder could consider the approach collectively the authored Jus- circumstances of the crime and the charac- Stewart, Powell, tices and Stevens that the ter and situation of the defendant. result in each case turned.2 adoption the of Subsequent to the Colora- opinion,

From this collective it is evident statute, do the Court decided Lockett v. the that: sentence of death for the of crime Ohio, 586, 2954, 438 98 57 murder is not per a se violation of the (1978), 973 L.Ed.2d which mandated that eighth and fourteenth amendments to the eighth the and fourteenth amendments of Constitution; contempo- of require assessment the United States Constitution rary concerning penalty precluded values the death is the fact finder must: “not be 132, 3, required 1. Senate Bill 46 it to ment 1 that was be sub- was not abolished. Ch. secs. & 507, qualified mitted to vote a electors at the 1965 Colo.Sess.Laws 508. general ap- November 1974 election for their proposition cases, proval rejection. Gregg The was to be 2. In and the associated the Court following language: couched in the "Shall the upheld discretionary penalty the death statutes penalty imposed upon persons be death Florida, convict- Georgia, of Texas and struck down and mitigating ed of class I where certain felonies mandatory the Loui- laws of North Carolina and present ag- are not circumstances and certain siana. I it correct to assume that the believe gravating present?" circumstances The are vote Stewart, opinion signed by plurality Justices 451,403 286,805 adoption. was to in favor of Powell, represents majority and Stevens 52, 6, 251, Ch. sec. 1974 Colo.Sess.Laws 254. other members of view of Court since four 1966, In On a similar referendum was held. the mandato- upheld have even would Court proposition, punishment capital "Shall ry statutes. 380,709 against abolished?” the vote was and 193,245 Accordingly, capital punish- in favor. 1262 5.1, substantially the same statute considering, mitigating factor, section a

from approved of this state or which the citizens any aspect of a defendant’s character 1974. any of the circumstances of and record proffers as a the defendant

offense that death.” for sentence less than a basis B. 604, (emphasis 98 S.Ct. at Lockett at Despite strong the will evidence of omitted). (footnotes original) of of the citizens this state have a death Court, 196 Colo. People In v. District statute, argues penalty defendant (1978), we found 686 P.2d penalty death is offensive Colorado’s 16-11-103, statute, 8 C.R.S. section contemporary decency of standards (1976 Supp.), “violates the constitutional therefore constitutes cruel and unusual in the Lockett now set forth commandment II, punishment under art. of the Colo- § does allow the sentenc- because it not case Constitution, that, provides rado which cases, entity these —to —in required, shall not be nor “Excessive bail relating to the all facts hear the relevant imposed, excessive nor un- fines cruel and of- record of the individual character and punishments usual inflicted.”4 particu- circumstances fender decency” argument The of “standards Colo, 405, 34.3 586 P.2d at case.” 196 lar premise based on the that standards again its legislature lent efforts The decency point to the have evolved where penalty that would statute enact death engage the state should the act of scrutiny. In constitutional withstand killing being regardless human section was amended add the statute proponents crime The of this committed. 16-11-103(5.1), fact which authorized the argue capital punishment thesis is so consider, in addition to certain finder dehumanizing society imposes on which factors, mitigating “any other statutory person upon death mitiga- bearing question factors longer it it is whom is inflicted that no 16-11-103, sec. tion.” Ch. society.5 § viable alternative in a civilized 673, 674. Colo.Sess.Laws urges us follow un- death statute Supreme Colorado lead the California Court sentenced, Anderson, People der which the defendant 6 Cal.3d 493 P.2d (1978 16-11-103, Cal.Rptr. & the Mas- section C.R.S. was, except Supreme of sub- Court in Dis- Supp.), for the addition sachusetts Judicial Court, (1869) (affirming expressed no District we Colo. 121 conviction murder; punishment imposed opinion mandatory); about limits Hill sentence death cf. II, of the Colorado Constitution. People, (reversing § art. 1 Colo. 436 penalty shifting to burden to due to defendant history prohibition "cruel and 4. The of the of short, intent). imposition the show lack of In of eighth punishment unusual" as it relates to the long accept- penalty history the has a of death extensively Fur reviewed in amendment was ance Colorado. 238, 2726, Georgia, 92 33 man v. 408 U.S. S.Ct. (1972), Gregg again in v. Geor L.Ed.2d 346 and argument decency" of was one 5.The "standard 169, gia, at The 428 at 96 S.Ct. 2923. U.S. arguments primary of the relied on the de- against prohibition Colorado constitutional 238, Georgia, fendants in Furman v. 408 U.S. 92 punishments adopted "cruel unusual" was and 2726, (1972). reject- S.Ct. 33 L.Ed.2d 346 It was punishment capital was in 1876 at a time when by majority of Court. ed a the Renewed in territory, Even as a common in most states. 153, 2909, Gregg Georgia, 96 S.Ct. penalty. General Laws Colorado had a death (1976), again rejected 198, L.Ed.2d 859 it was (1868). p. XXII Ch. Criminal Code sec. Powell, Stewart, the Justices and legislation observation legislature provid first enacted that, large "it is evident a penalty specified Stevens now crimes. death as the XXIV, IV, society proportion to re- General sec. 615 Criminal of American continues Laws Div. (1877). punishment] appropriate gard [capital Code it as an 179, Gregg necessary upheld impo- and criminal sanction.” Early of court the decisions People, penalty. at 2928. sition the death See Smith v. Attorney trict District Wat- reject offers no basis to for Suffolk son, 648, (1980). 381 Mass. 411 N.E.2d 1274 expressed will of people and the cases, In respective those courts legislature other than suggest adopted argu- of decency” the “standard steady decrease in the number of execu- penalty ment and held the death statute tions “persuasively Colorado6 demon- respective unconstitutional their under capital strates punishment is unac- state constitutions. ceptable today.” effect, In the defendant suggests that because the state has not strength Whatever the and weakness of decisions, anyone past executed twenty-one these later events clearly estab- they represent years, lished that did not reality the views citizens of this state in do people of those states. not penalty want a death regard- statute they less how represent- their elected February Anderson was decided 1972. atives vote. 1972, In people November of California responded by initiative, adopting, through 1972, From 1967 to when Furman v. constitutional provided amendment which 238, Georgia, 2726, 408 U.S. 92 S.Ct. penalty that the death shall not deemed be (1972), decided, L.Ed.2d 346 a de facto be, constitute, or to the infliction of cruel moratorium had existed while cases chal- punishment or unusual under the Califor- lenging procedures for implementing Const, I, 7, nia Constitution. Cal. art. § penalty being the death were reexamined adopted Nov. Within years two of by the Supreme United States Court. decision, the Watson the citizens of Massa- Colorado, legislative adopt effort to approved chusetts a constitutional amend- penalty constitutional death statute was re- Watson; effectively overruling ment jected by this court in v. District legislature penalty reenacted the death six Court, 196 Colo. 586 P.2d 31 weeks later. See Commonwealth v. Co- because the statute did allow the sen- lon-Cruz, 393 Mass. 470 N.E.2d tencing entity to hear all the relevant facts (1984). 117-18 relating to the character record of the Colorado, directly The citizens of offender or the circumstances the case through representatives, their elected have Ohio, contrary to Lockett v. repeatedly support declared their L.Ed.2d At penalty. They death expressed have legislative immediately session follow- values of the community. contempo- Since decision, ing our legislature amended rary test, community values are the their penalty the death in an statute effort to accepted view must as the standard remedy pointed the defects we had out which to measure a claim that death Court; District ch. sec. penalty contemporary is offensive to stan- 16-11-103, 1979 673-75.7 Colo.Sess.Laws § dards decency in Colorado. repeated These reenactments of Despite continuing seg- debate in all death statute indicate that is not it society morality ments of over the legislature’s desire for desirability capital punishment, now it lacking which has been in recent statute patently clear that majority a substantial rather, but, years, ability it is their to draft regards our society it as an appropriate complies one that with constitutional stan- Florida, Spaziano sanction. See dards which has been deficient. In addi- 9, U.S. 447 at 463-64 n. 104 S.Ct. 3154 at tion, 9, (1984)(in 1984, Supreme 3164 Jersey n. 82 L.Ed.2d as the New Court 340 37 statute). capital sentencing states had a response argument, in to same said 1985, points 6. The defendant legislature out that executions in In 7. 1984 and amended the 120, 1-8, (25 penalty death Colorado statute. Ch. secs. 1984 have decreased from seven 1930 491-96; 145, 8, 1930-1939) 1967, Colo.Sess.Laws ch. sec. 1985 between to one and none 647, See 1 Colo.Sess.Laws 653-54. also footnote since. accompanying text. 1264 ever, more only have had rehabilitation is one of four stat- lack of executions

“the com- judicial than with purposes punishment do with standards ed and deterrence to — Ramseur, 106 v. munity standards.” State in the balance. Peo- weighed also to be are (1987). 188, I Watkins, A.2d 212 be- 524 ple v. N.J. 200 613 P.2d 633 Colo. say today, as this it is correct to lieve that (1980). arbitrary imposi- The defendant’s ago, cap- “If seventy-eight years said court argument grounded on his claim tion abolished, rem- is to punishment ital persons selection of those who legislative branch edy lies with arbitrary penalty the death suffer remains People, government.” Demato 49 state legislature’s attempts despite the to limit (1910). 111 Ac- P. 704 Colo. support In discretion. his Colora- cordingly, opinion I am of the steps argument, he of the record to outside penalty statute does violate do’s death James, his inform us that brother who he prohibition against state constitutional our Drake, actually Regina claims killed punishment. and unusual cruel separate accessory convicted trial of degree

murder the first and received an eight-year sentence.8 C. argument pre The defendant’s has been if the defendant contends that even reasons, viously rejected for pur- sound I valid penalty furthered some

death reject it here. legitimate purpose no more There can be little doubt poses it serves imprisonment. support In no effectively requirement per than that there is that all legisla- argument, he notes that of this involved in the sons same crime receive the purposes of its Brubaker, articulated four ture has People penalty. same provisions: punish by assur- sentencing (no require P.2d Colo. ing imposition relative to of a sentence coconspirators ment that receive same sen offense; fair and the seriousness Strickland, tence); Antone v. 706 F.2d eliminating unjusti- treatment by consistent denied, (11th Cir.), cert. sentences; deterrence; disparity fied (1983), 104 S.Ct. 78 L.Ed.2d 18-1-102.5, 8B C.R.S. and rehabilitation. § denied, and stay cert. denied execution Antone v. Dugger, sub nom. see (1984); L.Ed.2d purposes He that of these four claims (11th Kemp, Ross 756 F.2d 1483 Cir. actually the death are two frustrated 1975). ultimate penalty. presents Execution an oth- obstacle to the rehabilitation that could argument The substance of defendant’s effected, erwise be and the death prosecutors is that since have discretion to disparities through arbitrary magnifies its initiate death cases their unbridled imposition. and selective of that exercise discretion is violative of his rights process agree purpose I of rehabilitation constitutional to due of law. Const, II, 25,. penalty. How- art. is frustrated Colo. § Court, People previously v. District 711 P.2d 666 James Drake had been convicted sought relief in the nature of manda- of three felonies. respondent mus in connection court's court, believing The trial it could not impose refusal a life sentence on James impose a life sentence on James Drake because There, charged Drake. James Drake had been guilty been he had not found of the crime first-degree Regina with the murder of Drake information, charged in the sentenced James criminality. and habitual James Drake testified years plus eight Drake to seven months one Drake he had that Richard only killed the victim and reversed, parole. holding year of We that when hiding bloody some assisted Richard in guilty a verdict of non-included felo- a lesser making phone an items and call to establish ny is followed verdict that requested Richard. alibi for James Drake felonies, previously has been convicted of three instruction on the accessory offense of lesser non-included 16-13-101(2), (1985 Supp.), section C.R.S. degree. murder in the first imposition mandates the of a sentence to life charge guilty returned a not to the verdict imprisonment. accessory guilty and a of murder verdict to jury murder. The a verdict find- also returned

1265 argument Gregg, through prosecutorial considered charging decisions rejected. opinion plurality only ob- because the offense is not suffi- ciently serious; served that: proof or because the is insufficiently strong. This does not discretionary The existence of these system cause the to any be standardless stages is the not determinative of issues more than the impose decision to stages before us. At each of an these life imprisonment on a defendant whose in justice system actor the criminal crime is insufficiently deemed serious or makes a decision which a remove its acquit decision to someone who is defendant from consideration as a candi- probably guilty but guilt whose is not Furman, for penalty. date the death in beyond established a reasonable doubt. contrast, dealt with the decision im- pose the specific death sentence on a Gregg, 428 at at S.Ct. individual who had been convicted of a (White, J., concurring). capital Nothing offense. in of our reject I argument also the defendant’s suggests cases the that decision to af- another reason. Section 16-11- an mercy ford individual violates 103(7)(b), (1979 Supp.), requires C.R.S. that, only in Constitution. Furman held that a sentence of death shall not be im- order minimize the risk death posed supreme if “the court determines penalty imposed capri- would be on a imposed that the sentence was under the ciously offenders, group selected of passion prejudice influence or any impose guided by decision to it had to be arbitrary other factor....” sentencing standards so that the authori- here, Based on the record I do not be- ty particularized would focus on the cir- prosecutor lieve that the decision of the cumstances of the crime defend- penalty against seek death the defend- ant. arbitrary ant alone reflects act. Such a Gregg at at S.Ct. 2937. See also decision is one which is invested Gregg at 199-200 n. 2937-38. attorney, district and absent evidence of an A concurring opinion also addressed the discriminatory application irrational prosecutorial

issue of as discretion follows: discretion, argument the defendant’s argument prosecutors validity. People Hernandez,

Petitioner’s has no (Colo.1984);People Lewis, behave P.2d 1325 standardless fashion decid- (Colo.1984); Farish, try capital which as P.2d 226 cases felonies Sandoval v. (Colo.1984). unsupported by any is facts. Petitioner P.2d simply prosecutors asserts that since power charge capital

have not to D. they power felonies will exercise that The defendant contends that the death a standardless fashion. This is unten- penalty unconstitutionally is cruel and un- able. Absent contrary, facts it punishment process and violates due usual prosecutors cannot be assumed that will because the state has failed to show that it be charging motivated their decision is the least drastic means available fulfill strength' factors other than the any compelling argu- state His interest. their case and the likelihood that a grounded premise ment is that there impose penalty would if death it con- penalty no “en- evidence that death prosecutors incompe- victs. Unless are joys superior deterrent effect” and the judgments, tent in their the standards public protected by be other can means they which charge decide whether to than execution. capital felony will same those ques- which death will decide deterrent effect of the debated, guilt tions of hotly and sentence. Thus de- has been and statistical at- escape tempts fendants will the death to evaluate worth 1266 16-11-103(5), (1979 Supp.), have

penalty deterrent been inconclu- 8 C.R.S. are as a 184-85, at at sive. 96 S.Ct. Gregg, language “impermissi- couched in which is resolving by issue 2930. In raised vague, ambiguous bly unclear and fail by defendant, guided princi- the basic I am requirements to meet the minimal of cer- legislature ple which has the that it is process tainty clarity of due crimes responsibility to define and estab- law....” punishments. Only if appropriate lish the challenged portion The of the statute are overreached constitutional bounds reads: power our find un- should exercise to we punishments. such Id. at impose constitutional The not sen- court shall 174-75, 96 S.Ct. at tence of if death on the defendant hearing in a sentencing results or verdict determination that legislative finding time of that at the the offense: penalty death is warranted under certain presump- circumstances is entitled tion its acts are constitutional and a that (b) capacity appreciate wrongful- His heavy rests on those who would burden ness or to of his conduct conform his 175, Gregg at judgment. attack its requirements of conduct to the law was Jackson, People at 28 2926. See also significantly impaired, but im- not so 149, Cal.Rptr. 168 Cal.3d 618 P.2d paired pros- constitute a as to defense to

(1980) (death presumed penalty laws are ecution; or constitutional); Anderson, In re 69 Cal.2d (c) Cal.Rptr. (1968). He was under unusual and 447 P.2d substan- duress, although tial not such as duress Here, legislature has concluded prosecution; constitute a defense or penalty purposes is within the death sentencing which been established for have (d) offense, principal He in the was a under the Colorado Criminal Code. another, which committed his was but 18-1-102.5, (1979 Supp.). 8 C.R.S. § minor, participation relatively was al- Among purposes (pun- are these retribution though not so minor as to constitute a ishment) and deterrence. prosecution; defense penologi- constitutes valid Retribution (e) reasonably He could not have fore- objective penalty. cal for the death It is in the seen that his conduct course of the not a nor objective forbidden one inconsist- he commission of the offense which ent respect dignity with our for the of men. cause, or was convicted would would cre- Gregg, at 2930. 428 U.S. at S.Ct. causing, grave ate a risk of death to permissible purpose Deterrence is also a person. another penalty and whether the death deters mur- der question appropriately most vagueness The critical focus chal- weighed legislature. and considered lenge is “either whether the law forbids legislature I believe that the could find that requires doing an act so terms it does find that just as it could it does not. vague ordinary intelligence men of legislature Since is best equipped meaning guess must as to its necessarily concerning evaluate “the moral consensus application.” Connally and differ to its utility death and its social as a Co., v. General Construction sanction,” 428 U.S. at Gregg, 96 S.Ct. 391, 70 L.Ed. 322 2931,1 conclude that the Colorado process require Due does “mathemati- violate statute does not the defend- legislative cal draftsman- exactitude process rights ant’s nor is cruel and due ship.” City E.g., People ex rel. Arvada punishment unusual under the United (Colo.1982). Nissen, 650 P.2d States or Constitutions. Colorado We also observed Schoon-

E. dermark, (Colo.1985), 699 P.2d Clauses also seek to that the “Due Process defendant contends four of discriminatory five mitigating arbitrary set limit enforce- factors forth in section requirements requiring sufficiently ment of laws clear of law substantially capable impaired,” and which of defined standards are or whether a partic- defendant’s prosecutors, application by police, ipation fair accomplice “relatively judges, juries.” Grayned and See also minor” are questions beyond capacity 104, 2294, Rockford, 408 92 33 S.Ct. of judge a or to determine.

L.Ed.2d response In argument, to this the Court quoted The defendant contends that said: provisions of the do meet statute not these questions While these may and decisions give they standards because fail to him and hard, require they be no more line draw- jury adequate type notice of the of ing than commonly required is of a fact to, subject conduct that will him or exclude juries finder a law suit. example, For from, penalty.

him the death He also com- traditionally have validity evaluated the plains description that the of conduct which insanity of defenses such as or reduced mitigating constitutes circumstances be- of capacity, both which involve the same ambiguous comes more quali- even when considerations as some of the above-men- by requirement fied that such conduct mitigating tioned circumstances. does not need to constitute a to defense 257-58, at S.Ct. 2969. Proffitt prosecution. disagree. I type The of to in conduct referred sub- F. 5(b) (e), through capacity appre- sections to argument The final defendant’s concern- wrongfulness conduct, duress, ciate mi- constitutionality penal- death participation creating grave nor and risk ty is require statute that the failure to death, are set out words that are prosecution disprove the existence of the easily common persons and understood mitigating mitigating and additional English language. familiar with the 16-11-103(5) factors set forth section light words can understood in (5.1), (1978 Supp.), C.R.S. & 1979 duty of the fact finder to consider whether beyond a reasonable doubt violates due the defendant’s conduct comes within their process of law. meaning. 16-11-103(3), (1979 Section 8 C.R.S. The term “as to constitute a defense Supp.), requires prosecution prove that the

prosecution” sufficiently is also clear and aggravating the existence of circumstances statutory understandable. This language, However, beyond a reasonable doubt. person enacted for the of a benefit who is statute silent as to what the burden subject to potentially penalty, death is, proof it, establishing who bears possible makes it for the fact finder to find mitigating whether or not factors exist.9 rejected that a defense on the merits at the guilt phase of the trial nevertheless In considering process whether the due sentencing leniency. warrant clause the United States Constitution requires Florida, prosecution disprove 242, 428 U.S. Proffitt 2960, factors, (1976), statutory mitigating existence of peti- L.Ed.2d Supreme tioner United States Court stat- argued statutory mitigating has ed “the require factors in the Constitution does not Florida statute were vague specific to adopt because whether a State in- defendant acted standards for structing ag- “under the influence of extreme mental in consideration of disturbance,” gravating mitigating emotional whether defend- circumstanc- es_” capacity ant’s “to conform his conduct Stephens, Zant v. 462 U.S. expressly provide proof 9. This silence was noted this court that "there shall be no burden of Durre, (Colo. proving disproving mitigating P.2d 168 n. 8 as to 1984). 16-11-103, legislature Later in amended factors." Ch. sec. § l-103(l)(d), section 16-1 8A C.R.S. Colo.Sess.Laws bersome, 27 L.Ed.2d 235 expensive, too and too inaccu- York, also Patterson v. New (1983); rate.”). see 197, 207-209, 97 S.Ct. 2325- State and lower federal courts which (1977) (state 26, 53 L.Ed.2d 281 statute have examined the issue have reached the prove requiring pre- the defendant Though same result.10 the rationales for ponderance of the evidence the affirmative holdings identical, always these are not two disturbance defense of extreme emotional major emerge. first, themes and most process upheld against a federal due chal- important, differing purposes is the lenge; necessarily follow that “it would guilt phase penalty phase of a trial. prove beyond must a reasonable a State guilt At phase, purpose the the is to deter- fact, every the existence or nonex- doubt guilty mine whether the defendant is of willing recognize it is as istence of which committing charged. the crime It is ele- mitigating exculpatory an or circumstance mentary prove that the state must all ele- affecting degree culpability or the the charged beyond ments of the offense a If severity punishment.... the State reasonable doubt. recognize nevertheless chooses to a factor phase, however, At the penalty the issue mitigates degree criminality the or appropri- is whether the death is sentence punishment, we think the State assure Ramos, v. 992, ate. In 463 U.S. California itself that the fact has been established 3446, 103 S.Ct. 77 L.Ed.2d 1171 the certainty. recognize with reasonable To Court stated: mitigating all a circumstance does not re- point, however,

quire prove the State to its nonexistence in More to the fun issue, put the fact is damental each case which difference between the nature judgment, guilt/innocence if in its this would be too cum- of the determination at Lucas, (5th Cir.1982) (due Gray process require prosecution F.2d v. 677 1086 does not (scheme requiring jurors to find the existence of disprove beyond a reasonable doubt the exist beyond aggravating circumstances a reasonable mitigate degree ence of factors which doubt, weigh against and then those factors mit denied, 907, punishment), cert. 448 U.S. 100 factors, valid), facially igating upheld as cert. 3050, (1980); S.Ct. L.Ed.2d 65 1137 State v. 910, 1886, denied, 461 U.S. 103 S.Ct. 76 L.Ed.2d Downs, 1140, 51 Ohio St.2d N.E.2d 364 Watson, 441, (1983); State v. Ariz. 815 120 586 (1977) (finding authority support 1148 no "to (1978) (when guilt issue of P.2d 1253 has proposition mitigating the lack of settled, require prosecution been gate mitigating to ne additional, constitutionally factors is an man place circumstances would offense”) (vacated capital dated element of a denied, state), impermissible on the burden cert. grounds light other of Lockett v. State at 438 924, 1254, 440 U.S. 99 S.Ct. 59 L.Ed.2d 478 909, 3133, (1978)); 98 S.Ct. 57 L.Ed.2d 1153 (1979); State, 449, Hulsey 261 Ark. 549 S.W. State, (Okla.Crim.App. Parks v. 651 P.2d 686 (1977) (the mitigating 2d 73 absence of circum 1982) (prosecution's only prove burden is to proved beyond stances is to he a not an element denied, 882, beyond doubt), a reasonable doubt the elements of the reasonable cert. 439 U.S. 99 220, (1978); circumstances), any aggravating S.Ct. 58 L.Ed.2d 194 State v. Osb crime and denied, cert. orn, 405, (1981) (at 1155, 800, 102 P.2d 187 Idaho 631 459 U.S. 103 S.Ct. 74 L.Ed.2d penalty phase, inquiry is all (1983); into relevant facts Zettlemoyer, 1003 16, Commw. v. 500 Pa. weighing propriety upon circumstances (1982) (proving 454 A.2d 937 the elements of capital punishment, of offense); not into elements of the any aggravating the crime and circumstances is 695, State, Md. Tichnell 287 415 constitutionally required prosecution), all that is 830, (1980) (due principles process A.2d 849 "do denied, 970, t. 461 U.S. 103 S.Ct. cer require prosecution prove to either be 2444, (1983); Pierre, 77 L.Ed.2d 1327 State v. yond mitigat a reasonable doubt the absence of (Utah 1977) (prosecution P.2d is not circumstances, prove beyond or to a reason circumstances; required mitigating disprove aggravating able doubt that the circumstances many impossible burden would be instances), to sustain in circumstances.”), outweigh denied, mitigating cert. 882, denied, cert. 439 U.S. 99 S.Ct. 993, 2374, 466 U.S. 104 S.Ct. 80 L.Ed.2d 219, 58 L.Ed.2d 194 (1984); Bass, 445, N.J.Super. State v. case, my The defendant has cited no 458, (1983) ("there 460 A.2d is no none, in which it was research has discovered requirement constitutional prove the State to process required prosecu- held that due insufficiency mitigating of such beyond disprove mitigating beyond doubt.”); factors a rea- tion factors a reasonable State v. Barfield, 298 N.C. 259 S.E.2d 510 sonable doubt. Alabama, evidence), issue in 447 U.S. unearth no Beck the factors that serve [v. (1980)] mitigators 65 L.Ed.2d 392 as tend to be facts within the scope and the nature of the life/death choice at defendant’s of knowledge. State v. above, Smith, penalty phase. (1980); As noted 125 Ariz. 610 P.2d 46 Pierre, (Utah Court in identified the chief vice of 1977), Beck State v. 572 P.2d 1338 denied, provide failure to a lesser in cert. Alabama’s (1978); option deflecting cluded offense the L.Ed.2d 194 Y.D.M., cf. (“it attention from ‘the central issue Colo. at 593 P.2d at 1360 is not manifestly place has satisfied its whether State unfair to on the child the proving beyond

burden reasonable burden to show her absences from school excused, guilty doubt that the defendant is of a were prove for the facts which conviction, capital returning disprove crime.’ In uniquely a claimed excuse are satisfy knowledge child_”). must that the nec within itself essary particular elements of the crime mitigation The factors which allow for proved beyond been a reasonable have 16-11-103(5.1) include, under section inter however, fixing penalty, doubt. alia, drugs alcohol, the influence of there is no similar ‘central issue’ from good although by mistaken —belief faith — jury’s may the which attention be divert morally the defendant that his actions were jury ed. Once the finds that defend justified, and that the defendant is not a legislatively ant falls defined within continuing society. threat to It would be category persons eligible of for the death matter, impossible practical aas for exam- jury then is free to con ... ple, disprove beyond for the state to myriad sider a of factors to determine reasonable doubt that the defendant did appropriate punish whether death is the good not have a faith belief that his actions ment. morally justified. were 1007-08, (em- Ramos at at 3457 Further, 16-ll-103(5.1)(h) pro- section added) (citation phasis and footnote omit- vides that the defendant can submit ted). question evidence which bear on the of Simply put, once a defendant has been mitigation. category This broad “catchall” guilty capital aggra- found of a crime and present allows the defendant to a wide vating proven circumstances have been be- evidence, variety totally of much of it be- doubt, yond a the state has reasonable rebuttal, yond possibility much less Requiring made its case for death. disproof beyond a reasonable doubt. mitigating then circum- show example, For the defendant called sever- process.11 stances exist does not violate due al to on his testify witnesses behalf at gleaned The second rationale that can be penalty phase of the trial. One witness in from the numerous cases cited footnote testified that he believed the defendant was prov 10 is that the burden on the state of born-again repre- Christian and did not ing beyond no miti continuing society; a reasonable doubt that sent a threat to another gating im virtually circumstances exist is testified that the defendant his friend was possible difficulty something to meet. Aside from the and still had useful to contribute proving society; in the absence a condition to another testified that she was general, Y.D.M., People opinion see 197 Colo. of the the defendant had come to exists; (permissible to P.2d 1356 realize God a fourth was place opinion people burden on defendant to show excuse that the defendant loves and investigation by People might something positive when Christ and there is still 11. The defendant relies on Chavez, People proof beyond victed Here, a .reasonable doubt. (Colo.1981), support argument. guilt already P.2d 1362 However, his the defendant's was estab- lished, only sentencing dealt with the issues remained. Chavez Chavez right right inapposite. to remain silent and the to be con- is therefore life; ments, his finally,

that he could do with remarks prosecutor made pastor of the Adventist church closing argument, was of jury and the instruc- opinion that the defendant seemed sin- tions. something make cere and wanted to of his People Durre, (Colo. In 690 P.2d 165 spiritual life. 1984),this penalty phase court reversed the gave testimony All capital these witnesses in a case because of the dem support mitigation none of it is sus- onstrated misunderstanding of responsi its —and ceptible being testimony refuted. Their bility, and of the penalty phase effect of its reflects, varying degrees, ethical, moral, penalty phase Durre, votes. religious principles jury which are at the returned the verdict forms with a note very their Those principles core of lives. explained attached. This note judge to the subject being disproved are not that the had reached a vote of seven to court of law. five in penalty. favor of the death Based facts, on those we held that “[t]he Accordingly, opinion I am of the note, when viewed the context of the process rights being defendant’s due deficiency present here, instructional mani only by proof beyond convicted a reason- significant degree fests a uncertainty legisla- able doubt are not affected whether all jurors actually twelve con require ture’s decision not to curred.” Id. at 174. disprove mitigating factors at the sentenc- ing stage. us, In the case before the issue is wheth- jurors er the believing were misled into Because I am convinced that the convic- their votes would not determine tion and death sentence of the defendant whether the death sentence appropri- does not violate the United States Constitu- punishment ate for this defendant. Unlike tion or the Constitution of the State of Durre, in this case there is no manifesta- Colorado, I judg- would affirm both the significant degree tion of “a of uncertain- ment of conviction and the sentence. ty.” side, No presented by facts are either record, or reflected in the suggest the YOLLACK, Justice, concurring in uncertainty that was demonstrated in part dissenting part: Lacking record, Durre. a basis the I disagree majority’s with the conclusion that I majority’s concur in the affirmance of jury the did not understand what it was guilt phase the proceedings. of these How- doing when it aggravating voted that three ever, I dissent to Part V because I do not mitigating factors and no factors had been agree majority’s with the reversal “fact-finding established. It is the jury, penalty phase. After review of the voir court, and not the that decides whether dire, closing instructions, arguments, jury mitigating there are additional circum- verdict, jury’s disagree and the I with the stances sufficient justify a sentence of majority’s jury conclusion that the did not imprisonment life rather than death.” Id. responsibility. affirming understand its In (footnote omitted). In carrying at out penalty phase, uphold I would the con- “ role, ‘express this task tois stitutionality of Colorado’s death community conscience of the on the ulti- statute, as well constitutionality as the ” question mate of life (quot- or death.’ Id. application its to this defendant. Illinois, Witherspoon 20 L.Ed.2d 776 L (1968)). I majority Because believe the is impermissibly substituting interpreta- its THE PENALTY PHASE tion of the facts for the conclusion reached sentencer, portions jury Review of relevant of the record as the factfinder and includes analysis holding majority’s the ante-voir dire in- I dissent from the as to struction judge’s and the penalty phase. voir dire state-

A. and at the conclusion of hearing, questions certain will be submitted to Dire and the Voir Ante-Voir jury jury take to the room for Dire Instruction response. deliberation and After these begin in Before voir dire can a death questions have been answered and de- case, judge give jury must pending upon the answers pre- as panel specific regarding instruction law, Judge scribed will sentence penalty. At the time of the Drake imprison- either to defendant life trial, this ante-voir dire instruction was con- ment or to death. holding People trolled our v. District (Emphasis added.) Comparing the lan- Court, 190 Colo. P.2d guage of the Drake instruction to the in- (hereinafter I). District Court District I, struction in District Court I believe that I, purpose we Court described the jury adequately prior advised provided ante-voir dire instruction and Although voir dire. the Drake instruction following recommended form for such an is not identical to the District Court I instruction: instruction, provided it the necessary expla- jury

In the nation of the role of event the defendant the sentenc- ing phase. The instruction served to “en- guilty charged [description found as counsel any pro- able to determine whether charge indictment], in information or spective jurors” had beliefs which would hearing there will follow a second before prevent cause them to the defendant from jury. the same Evidence be intro- obtaining I, a fair trial. District Court hearing. duced at this At the conclusion Colo, 546 P.2d at 1271. The lan- hearing questions certain bewill guage of the substantially instruction was submitted to the to take to the instruction, similar to the recommended room for response. deliberation and Af- express purpose and served the of such an questions ter these have been answered significant concept instruction. There is no and, depending upon the answers rendering or statement the Drake instruc- law, prescribed by judge will sen- inadequate. tion potential jurors were tence the either to im- life properly advised of the nature of the case prisonment or death. began, when voir dire and the voir dire judge sentence of the will be de- instruction was not erroneous. pendent upon jury the answers of the procedure affecting jury’s The other and, jury may fully while the not understanding question- of its role was the any particular advised as to the effect of dire, jurors during individual voir answers, group People answer or jurors by statements made to the right and the defendant have the to ex- judge jurors’ repre- about the roles. Two you prospective amine jurors as within ju- sentative statements to the individual appropriate your limits as to views on upon your rors are as follows: “[B]ased capital punishment. questions, answers those the court will impose prison”, either the death I, District 190 Court Colo. upon your and “based answers to [certain added). (emphasis P.2d questions], impose the court will the death panel jury The Drake received the fol- imprisonment or life as the an- lowing ante-voir dire instruction: swers dictate.” These voir dire statements case, People asking In this are for again jury served to its educate the about imposition penalty. of the death This potential jurors role. The had the benefit capital is a In case. the event that the hearing explanation re- type of guilty charged defendant is found peated juror. to each individual There Information, there will follow a sec- no supporting evidence in the record hearing jury. ond before the same Evi- any juror conclusion that was misled or hearing dence be introduced at this confused. thing’ jury jury for ‘obvious that a imprisonment sentence of life

“[T]he parole unanimity on the without by have done existed could be commuted if Governor of have been to return the California to a sentence verdicts would could possibility parole. include the appropriately signed verdict forms with 995,103 U.S. at Durre, petition- S.Ct. at 3450. The nothing more.” 690 P.2d at 174-75 er in argued Ramos that this instruction (quoting People Yeager, 170 Colo. Constitution, violated the United States but (1969)) (emphasis 462 P.2d use of the Briggs upheld instruction by added). jury here did “the obvious “merely the Court as an accurate state- forms, thing” returning signed verdict potential ment of a sentencing alternative.” nothing In more. Id. the absence Id. S.Ct. at 3457. The Court confusion, it is not manifestation distinguished Ramos from Caldwell our role to read into the record confusion saying that the statement Caldwell [in ] part uncertainty jury. on the regarding appellate review was neither ac- Caldwell, nor curate relevant. 472 U.S. at B. Caldwell, 105 S.Ct. at 2643. In it was Closing Arguments “constitutionally impermissible held to rest sentence on a determination made prosecu- The defendant contends that the by a sentencer who has been led to believe phrase responsibili- “shared tor’s use of the responsibility determining ty” closing argument so misled the appropriateness of the defendant’s death penalty phase. I as to invalidate the dis- 328-29, rests elsewhere.” 472 U.S. at agree. majority S.Ct. at 2639. The deems it an majority reverses the unani “inescapable ... conclusion that doubt or mous on the verdict based law speculation” Majority exists this case. Durre, (Colo.1984),majority 690 P.2d 165 op. at 1257. I believe this conclusion is 1254-1258, op. at and Caldwell v. Missis incorrect, viewing the record as a whole. 320, 105 sippi, 472 L.Ed. S.Ct. During closing arguments, prosecu- op. 2d 231 majority at 1258-1260. tor in stated: will Drake under- “[Y]ou Caldwell, Supreme In the United States responsibility you stand the I have and Court vacated the defendant’s death sen going pound you am not over the head prosecutor tence because the told the about the awesomeness of it....” He also during closing argument that it could shift passed said: is a law that was here “[T]his responsibility appellate its court. to an 472 in you our state and ... are to make a prose U.S. at at 2640. The factual determination based on the evi- cutor’s statement was: decision is “[Y]our prosecutor dence here.” The used this decision_ job not the final Your is re responsibility” language “shared twice you viewable ... decision render is [T]he reminding jurors responsibili- that their automatically Supreme reviewable ty apply the was to law as written. 325-26, Court.” at Id. at S.Ct. rebuttal, prosecutor the referred to the The Court held that these statements re jury’s responsibility” by saying: “I “shared quired penalty phase vacation of the be again you would like to remind that what prosecutor impermissibly cause the had ad you responsibility. have is a shared This is jury vised the shift its that it could sentenc passed. the law in our state that was You ing responsibility elsewhere. are not alone. This case would not be here police but for the actions of the and it holding, distinguished In so the Court its actions of the would not be here but for the Ramos, holding earlier v. California prosecution....” U.S. 77 L.Ed.2d 1171 (1983). Ramos, gave In improper the trial court the The determination of whether instruction, closing argument advising during so-called the made Briggs remarks are depends responsible reenacting nature of the comment penal- on “the the death ty jury’s attention has statute was accurate and on whether statement. Comparing Caldwell and Ramos to something which it is not been directed case, I believe the remarks here Constant, are con- People consider.” v. entitled to trolled Ramos because the remarks denied, cert. 645 P.2d U.S. were accurate and in describing relevant 74 L.Ed.2d 72 jury’s prosecutor role. The did not tell meaning particular The effect of re jury that it could shift its responsibility prosecutor’s closing argu in a marks made elsewhere; jury he told the that it was to ment evaluated in the context of must be make a factual apply determination and to evidence, closing argument and the as a passed “a law that was here in our state.” Gutierrez, People 622 P.2d 547 whole. These statements did not direct (Colo. 1981); Marin, People 686 P.2d something attention “to which it is not (Colo.App.1983). specific In the con Constant, entitled to consider.” 645 P.2d capital sentencing, text the United basis, at 846. On that I do not believe Supreme has reversed States Court a death closing argument statements made in justi- grounds on the verdict substan fy reversal. unreliability tial there are state-in “when sentencing suggestions jury duced that the c. responsibility shift its sense of to an Caldwell,

appellate court.” Jury Jury Instructions and The 330, 105 S.Ct. at 2640. Verdict Form . object Defense counsel did not to the I dissent I because believe that the in- responsibility” “shared remarks made dur jury structions and verdict form are ade- ing closing argument, plain so error is the quate Durre, under 690 P.2d 165 plain standard review. The error stan (Colo.1984).2 majority The relies almost ex- court, appellate dard is “whether an after clusively jury on the in- verdict form and record, reviewing say the entire can concluding structions fair assurance that the error so under phase stand cannot under Durre. mined the fundamental fairness of the trial Durre, In the trial court failed to inform itself as to cast serious doubt on the relia during penalty phase jury as to the bility judgment of conviction.” Wil aggravating effect their votes on (Colo. People, son v. 743 P.2d mitigating factors. jurors returned a 1987). forms, explaining note with their verdict language of these remarks served to judge they had arrived at a vote of jurors duty apply remind of their penalty. seven to five favor of the death law, legislature, as written the Colorado showing Based on this unmistakable presented to the facts at trial. I confusion, note, believe jury we held that “[t]he prosecutor’s responsibility” “shared when viewed the context of the instruc- here, statements were accurate and not mislead- deficiency present tional manifests ing, when considered their context.1 Re- significant degree uncertainty minding legislature actually all jurors was whether twelve con- jurors prosecu- applied retroactively. Griffith, 1. Even if the were misled in Durre be responsibility," they tor’s reference a "shared Supreme the United States held that "a Court hardly could have misunderstood their burden prosecu- new rule for the conduct of criminal attorney argued defense when the cases, applied retroactively tions is to be to all presented that the evidence "does not make [the federal, pending state or on direct review or not type person you got if defendant] so mad final, yet exception with no for cases in which they you about what have done that would want the new rule constitutes a ‘clear break’ with the penalty." to kill them with the death past.” yet Id. at 716. Because this case is not final, applied the law in Durre must be retroac- — U.S.-, Kentucky, 107 S.Ct. Griffith tively to the defendant’s trial. (1987), requires 93 L.Ed.2d 649 the law finding.” (empha- given in the Id. at 174 curred here requirement, meets this because added). requires jury Durre that a be adequately sis it advised jury as to the “regarding effect of their “effect instructed of their verdicts.” pro- Id. This punishment,” on the issue of reliability verdicts tects the of the verdict as dis- Durre, we set forth a recommended instruction for cussed in especially light in in language use future cases: jury verdict form and the unequivocal nature of the votes. your mitigating If verdicts are that no jury advised; The adequately was to hold mitigating and no additional circumstanc- otherwise would be to form elevate over exist, es and further that one or more substance. exist, aggravating circumstances then has no discretion court whatever on penalty the matter of and must sentence D. death; if, the defendant to on the other summary, presents this case none of hand, your verdicts are that one or more the factual justified circumstances which mitigating mitigating or additional reversal of the death in other exist, circumstances or that none of the cases. Durre jury unequiv- involved a exist, aggravating circumstances then ocally demonstrated its confusion when it the court has no discretion whatever on returned a verdict form with a note at- punishment and must issue sen- indicating tached a seven to five vote. imprisonment. tence the defendant to life repeated Caldwell involved statements

Id. at 174 n. 15. prosecutor jury that the need not con- ruling post-dated Our in Durre sider its decision final because sentence trial, judge Drake so the trial in subject Drake did was appellate automatic review. advantage not have the of the recom- The facts like those in Durre and Caldwell mended instruction when he advised the type demonstrate the of confusion or mis- jury. jury given leading verdict form Drake jury requires of a reversal in a statutory language pat- utilized the and the capital case. part: tern instructions. The form stated perfection “While technical in the deliber- “YOU MAY CONSIDER ANY FACTOR process ative is not demanded often INCLUDING BUT NOT LIMITED TO impossibility, severity of the death FOLLOWING, THE IN DECIDING scrutiny sentence does mandate ‘careful WHETHER A LIFE IM- SENTENCE OF the review of colorable claim of er- PRISONMENT RATHER THAN DEATH ” Durre, ror.’ ju- 690 P.2d at 173. The “We, IS Jury, having JUSTIFIED” and responses rors’ ques- to the determinative evidence, considered all of the find one or jury tions on the verdict form reflected mitigating more justifies factors the sen- application their of the law to the facts

tence of imprisonment life rather “ than ‘[Ojne impor- before them. of the most jurors death.” were thus advised that any jury perform tant functions can mitigating their vote on factors would de- making impris- ... a selection life [between termine whether the defendant received a onment and death for a defendant convict- imprisonment sentence of life or death. capital ed is to maintain link case] The jury contemporary instructed with the community between values ” specific language later recommended in penal system.’ and the Gregg, 428 U.S. requires Durre. (citing Durre that an instruction 96 S.Ct. at 2929 Witherspoon given Illinois, “in following or similar 519 n. terms,” and that the instruction tell the 1775 n. 20 L.Ed.2d 776 jury “about the effect of I their verdicts on Because believe the record shows that the

the life and death decision jurors import understood the of its being votes, were required Durre, disagree phase majority’s to make.” I P.2d at 174 n. 15. I believe the instruction reversal of the verdict. The did not before, 280, 2978, during, any confusion U.S. 96 S.Ct. demonstrate L.Ed.2d 944 (1976). Mandatory sentencing phase, schemes penalty the trial and and it or after were struck down Roberts and Woodson adequately existing advised under the requirements because the statutes’ is reflective of the law. Their conclusion penalty imposed death “the be on all de- jury’s applying objective stan- function specified fendants convicted of a category penalty at a dards to arrive reflective of murder” eighth was violative of the “contemporary community values.” amendment of the United States Constitu- (footnote omitted). Rosen tion. at 947 II. In contrast mandatory sentencing, uphold Because I would ver- Florida, penalty death statutes in Georgia, guilt phase, necessarily dict in I ad- Texas, statute, like our Colorado “al- constitutionality dress the of Colorado’s impose low the sentencer to pen- the death statute, 16-11-103, penalty alty provided section under legis- standards (footnote omitted). 8A C.R.S. lature.” Id. Address- statutes, ing these which allow but do not Following Supreme the United States require imposition penalty, of the death decision in Court’s 1972 Furman v. Geor- (in Supreme plurality opinions) Court af- legislatures gia, thirty-seven states right impose firmed the state’s the death legislation pro- have enacted or reenacted penalty if “provided legis- the sentencer is viding imposition penalty of the death latively drafted standards to channel the when a defendant is convicted of first de- sentencer’s discretion to avoid the arbitrari- gree murder. Georgia, Furman v. 408 ness, capriciousness, and discrimination” 238, 2726, U.S. 92 S.Ct. L.Ed.2d fatal to Georgia. the statute Furman v. (1972) (death penalty per statute is not se Rosen at 948. Like the statutes Florida unconstitutional, applied but be in an Georgia, capital sentencing Colorado’s manner); Rosen, unconstitutional The “Es- procedure patterned large part on the pecially Aggravating Heinous” Circum- Gregg, Model Penal Code. See 428 U.S. at Capital stances in Cases—The Standard- 193-95, 44, 2934-35, 193 n. 96 S.Ct. at Standard, less N.C.L.Rev. 941 n. 44. (hereinafter Rosen). cited as upheld constitutional, To be Colora- 1976, Supreme Court reviewed the penalty do’s death statute must survive constitutionality of post-Fwr- five of these scrutiny eighth under and fourteenth man death statutes. The lead case amendments of the United States Constitu- 153, was Gregg Georgia, II, v. 428 U.S. 96 tion and under article sections 20 and 25 2909, S.Ct. 49 L.Ed.2d 859 followed of the Colorado Constitution.3 The statute Florida, face, 96 must also constitutional on its U.S. both Proffitt (1976); applied particular and as to this defendant. 49 L.Ed.2d 913 Jurek Texas, 96 S.Ct. 49 L.Ed. A. (1976); Louisiana, 2d 929 Roberts v. 49 L.Ed.2d 974 facially A death statute must be

(1976); Carolina, eighth v. North 428 constitutional under the amendment Woodson vacy telephone per- 3. State courts are free to consider the merits of in the numbers dialed on a challenge DiGiacomo, a constitutional to the state constitu- telephone); son's home Chames v. tion, independent Supreme of United States (1980) (taxpayer 200 Colo. 612 P.2d 1117 opinions. Lujan Court v. Colorado State Bd. of under the has a reason- Colorado Constitution Educ., (Colo.1982). 649 P.2d 1005 This is true expectation privacy able in bank records of similarly even when the state constitution is transactions). his The court ex- financial has identically phrased to the federal constitution. panded protections primarily constitutional re- occasion, rejected Id. at 1016 n. 11. On we have garding search issues. These cases and seizure Supreme interpretation Court’s of the feder- suggest do not seem to that the constitution of Sporleder, al constitution. See this state would be construed in a different (Colorado (Colo.1983) P.2d 140-42 Consti- regards capital sentencing. fashion as recognizes legitimate expectation pri- tution clause, punishment penalty imposed in an has been unconstitu- unusual cruel and tionally arbitrary capricious or manner. pro- amendment due fourteenth under the 195, Gregg, 428 U.S. at 96 S.Ct. at 2935. In Gregg at 946. Rosen cess clause. arbitrary capricious An or result can be 188, at 2932 at 96 S.Ct. 428 U.S. Georgia, carefully only by avoided the use of “a Supreme States Court the United drafted statute that ensures that the sen- question addressed specifically tencing infor- authority given adequate of death for the sentence “whether the guidance.” mation and Id. Each sentenc- of the per is a se violation of murder crime ing scheme must be examined on an indi- Amendments to Eighth and Fourteenth vidual basis. Id. Constitution,” 176, at id. States] [United Court, In v. District 196 Colo. 2926, that the death at and concluded 401, (1978) (hereinafter P.2d 31 Dis- per not unconstitutional se. penalty was II), this struck as trict Court court down pun- a form of penalty is not death “[T]he penalty unconstitutional Colorado’s death imposed.” Id. never ishment statute, 16-11-103, (1973) section 8 C.R.S. Nevertheless, 187, 2932. 96 S.Ct. at at (1976 Supp.), because it did not meet the imposi- asks us to hold that defendant here requirements constitutional of Lockett v. penalty any under circum- of the death tion Ohio, 2954, 438 U.S. 98 S.Ct. punishment in and unusual stances is cruel (1978) (evidence sentencing L.Ed.2d 973 at II, 20 of the of article section violation only statutory phase cannot be limited to Constitution. Colorado circumstances). mitigating ruling in holding Gregg, Supreme Since its II turned on District Court the statute’s argu- consistently rejected this Court has limitation of the evidence which a defend- Texas, 262, 268, 428 U.S. ment. Jurek v. present mitigation ant could to establish (1976); 2950, 2954, 49 L.Ed.2d 929 96 S.Ct. sentencing phase. response In Dis- II, legislature 428 U.S. at 96 S.Ct. at 2964. Proffitt, trict Court amended the statute, penalty August effective sup- death aspect No of Colorado's Constitution 1. 1979.4 Colo.Sess.Laws penalty ports § the contention that our death “[Cjapital punishment expression is an per is unconstitutional se. Because statute society’s outrage particularly moral at of- penalty statutes have not similar death Gregg Georgia, fensive conduct.” by facially held unconstitutional been 153, 183, 2909, 2930, U.S. 96 S.Ct. 49 L.Ed. Court, reject Supreme I would likewise (footnote omitted). question 2d 859 argument here. defendant’s parties urge which the and amici curiae us penalty to address is whether our B. statute, reenacted,5 un- as is constitutional se, Although per the more not invalid der the Colorado and United States Consti- problematic question is whether the death tutions. (b) previously declining The defendant was convicted

4. hold the death uncon- Gregg, Supreme involving felony United States stitutional in 1 or 2 in this state of a class 16-11-309, Court noted: “The most marked indication of society’s specified or in section violence of the death [was] endorsement by previously convicted another state or was legislative response to Furman offense which would United States of an years In the four at following 96 S.Ct. at 2928. felony involving vio- a class 1 or 2 constitute Furman, least 35 states had reen- "at by Colorado law in section lence as defined penalty." Id. acted the death 16-11-309; or (c) intentionally killed The defendant section, aggravat- purposes For of this following persons person while such of the following factors: factors shall be the performance engaged in the course was (a)The by felony class 1 was committed duties, the defendant knew of his official person imprisonment for a under sentence of reasonably known that such should have 1, 2, felony class or 3 as defined Colorado engaged per- person in the such a victim was law, com- law or United States or for a crime duties, or the victim his official formance of against United mitted another state or the 1,2, intentionally for the killed in retaliation class or 3 States which would constitute a felony law; duties: performance of his official as defined Colorado assessing punishment eighth amendment; selected satisfy “[I]n legislature against democratically elected prohibition against cruel and pun unusual measure, presume the constitutional we its ishment, the sentencer must consider “the Gregg Georgia, validity.” character and record of the of individual 49 L.Ed.2d 859 fender and the partic circumstances of the (1976). Despite presumption of validi- Id. ular offense.” 96 S.Ct. at 2991. ty, penalty the death cannot be constitu- requirement The second arose from the tionally imposed statutory sentencing if the Ohio, Lockett v. holding Court’s 438 U.S. procedures create a substantial risk that 98 (1978). S.Ct. 57 L.Ed.2d 973 capital punishment may imposed in an The precluded sentencer cannot “be from Id. at arbitrary capricious manner. considering, as a mitigating factor, any 188, 96 S.Ct. at 2932. aspect of a defendant’s character or record any of the circumstances of the of Gregg, In the cases decided after proffers” fense that the defendant in miti Supreme imposed Court “has a number of Id. gation. (empha S.Ct. at 2964 requirements capital sentencing pro on the original). requirement sis The third in capital cess sentencing to ensure that deci two-part analysis: volves a testing after inquiry sions rest on the individualized con capital sentencing procedures templated in Gregg.” McCleskey Kemp, for facial va — lidity, “probe[ the court must -, applica U.S. 107 S.Ct. ] particular tion of statutes (1987). cases” to de L.Ed.2d 262 The first of these re provisions Woodson v. North termine quirements whether arose from have been Carolina, unconstitutionally applied by adequate U.S. 96 S.Ct. Woodson invalidated a (1976). ly guiding L.Ed.2d 944 sentencer’s discretion. — McCleskey, mandatory sentencing at -, scheme as violative 107 S.Ct. at (I) peace peace A (III)Any incendiary grenade, officer or former officer bomb or Are C.R.S.; 18-1-901(3)(1), bomb, device, as defined in section including any or similar device or which consists of or includes breakable con- (II) firefighter A as defined in section 24- including liquid tainer a flammable or com- 33.5-1202(2), C.R.S.; or pound, composed any and a wick material (III) referee, judge, judge A or former or which, ignited, capable igniting when is any referee of court of record in the state or liquid compound, such flammable or and can system any federal or in other state court by acting be carried or thrown one individual system judge judge any or a or former alone. municipal any court in this state or in other 2,1, (g) The defendant committed a class or purposes subparagraph state. For of this and, felony in the course of or in further- (III), the term "referee" shall include a hear- therefrom, flight ance of such or immediate officer or other officer who exercises intentionally person he caused the death of a judicial functions. participants; other than one of the or (IV) state, county, municipal An elected or (h) felony The class 1 was committed for official; or pecuniary gain; or (V) A federal law enforcement officer or (i) offense, agent In the commission of the or former federal law enforcement offi- agent; knowingly grave cer or or defendant created a risk of (d) intentionally per- person killed a death to another in addition to the kidnapped being hostage by offense; son or held as a victim of the or him; by anyone him or associated with or (j) The defendant committed the offense in (e) party The defendant has been a to an heinous, cruel, especially depraved an or agreement person to kill another in further- manner; or person intentionally ance of which a has been (k) felony The class was committed for killed; or purpose avoiding preventing or a law- (f) The defendant committed the offense prosecution effecting ful arrest or or es- wait, ambush, lying while from or use cape custody. from This factor shall include explosive incendiary of an or device. As used killing the intentional of a witness to a crimi- (f), paragraph "explosive incendiary in this nal offense. means; device” 16-11-103(6), C.R.S. § 8A (I) Dynamite high and all other forms of explosives; or (II) bomb, missile, Any explosive grenade, device; or similar Fourth, the 1773. Court has “established ments. Florida’s statute differs from the application Georgia limitations” on substantive and Colorado statutes in the re- penalty objective “where the spect the death indi- under Florida’s statute community verdict, cia of values have demonstrat advisory renders an and the actual ed a consensus that death sentence is determined judge trial disproportionate applied as to a certain judge weighs after the eight aggravating (citing class of cases.” against Id. Coker v. Geor factors mitigating seven factors. gia, 433 U.S. Proffitt, 251-52, L.Ed.2d 428 U.S. at 96 S.Ct. at (state cannot constitutionally Regardless of whether the “actual” punish sentence an to death individual decision judge is made jury, or the woman)). rape ment for of an adult See the determination of whether there has 399,106 Wainwright, also Ford v. arbitrary been an capricious applica- (1986) (eighth 91 L.Ed.2d 335 tion of the is the same for prohibits impos amendment the state from purposes of analysis. The Court conclud- penalty the prison death on an insane ed: 2602). er. at Id. Under Florida’s capital-sentencing proce- dures, sum, judges given trial spe- are Constitutional deficiencies in a capital guidance cific and detailed to assist them sentencing scheme “will be alleviated if the deciding impose whether to a death given guidance regarding is the penalty imprisonment or for life. More- factors the crime about and the defendant over, their decisions are reviewed State, [on representing organized soci- appeal] automatic they to ensure that are ety, particularly deems relevant to the sen- consistent imposed with other sentences tencing 192, decision.” Gregg, 428 U.S. at in similar circumstances. dispositive 96 S.Ct. at 2934. The issue is whether the sentencer’s discretion is ade- 253, 428 U.S. at 96 S.Ct. at 2967. quately guided by limited and the statute. The constitutionality application

We held in District Court II that capital Colorado’s sentencing statute to “[a] statute must meet at require particular least two depends on whether ments before it can serve as the basis for “aggravating clear, circumstances are imposition of the death sentence.” understandable, 196 precise, easily applied and Colo, 405, First, at 586 P.2d at 34. by the sentencer and ap reviewed “ provide statute ‘meaningful must pellate basis courts.” Rosen at 942-43. “The distinguishing ... cases which it Supreme thrust of decisions [the Court’s] ” imposed is from capital which it is not.’ punishment [those] has been that ‘ (citing Id. Georgia, Furman v. 408 U.S. “discretion suitably must be directed and 238, 313, 2726, 2764, 92 S.Ct. 33 L.Ed.2d limited so as to minimize the risk of wholly 346). satisfy requirement, To this leg “the arbitrary capricious and action.”'” Bar specific islature aggravat enumerate clay Florida, 939, 950, 103 v. 463 U.S. S.Ct. ing factors, presence of which will (1983). 77 L.Ed.2d 1134 This justify imposition serve to arbitrary a sentence capricious standard “de 405, of death.” 196 Colo. at 586 P.2d at 34. mands aggravating] factor be ca [an Second, legislation must pable allow the de of objective determination.” Cart present any fendant “to relevant informa wright, 822 (emphasis added). F.2d at 1485 why tion as the death sentence should An aggravating factor cannot be constitu imposed not be upon him.” tionally Id. applied if it is “defined applied broadly so it conceivably could cover Supreme The United States Court ana- every degree first murder.” Id. at 1485. lyzed Florida’s statute in Florida, 242, 428 U.S. 96 S.Ct. Colorado’s requires statute Proffitt 2960, 49 L.Ed.2d 913 and found that consider the defendant’s character and the statute record, satisfied require- the Furman and the partic circumstances of the

1279 f, heinous, 16-11-103(5)(a-c, j); especially ted the offense in an ular offense. § 304, cruel, manner; Woodson, depraved or at 428 at 96 S.Ct. at ...” Rosen U.S. present any provision generally 945. This has been permitted The defendant evidence, including any aspect of type facially Gregg, held to be constitutional. 201, (Georgia’s circumstances of 428 U.S. at 96 at his character S.Ct. 2938 16-11-103(5)(Z); vile, offenses, mitigation. “outrageously wantonly or horrible § Lockett, aggravating U.S. at 2966. inhuman” factor not unconsti at S.Ct. Third, applied Supreme 16-11-103 to as application Georgia of section tutional Court); Proffitt, did result in a 428 U.S. at 96 S.Ct. particular defendant not this (Florida’s heinous, guidance “especially for the showing inadequate at atro cious, sentencing jury. Georgia, aggravating or cruel” is not Godfrey factor guidance, inadequate as Flor L.Ed.2d construed S.Ct. Supreme Court). Finally, phrase: statute does not vio ida This same cruel,” heinous, “especially requirement atrocious late upheld Supreme by Wyoming crime. was also proportionate 16-11-103(1)(a)(statute Wyoming defend under limited to Court constitutional § Hopkin 1 felony). of a class See and United States Constitutions. ants convicted State, Georgia, (Wyo.1981). at 632 P.2d Coker v. 433 U.S. son (“The 2866; properly Wainwright, Ford v. statute does not fail to jury’s sentencing discretion 91 L.Ed.2d 335. channel grant and does it unfettered discretion important in Proffitt, As seen another penalty arbitrary impose the death the United Su- by factor considered States capricious (emphasis in and reasons.” Id. preme capital sentencing Court review of circumstances, original). limited Under provision re- statutes is the for automatic however, vacat death has been supreme by view the state court. See provision applied this was in an ed when 2939; 203, 96 Gregg, 428 U.S. at S.Ct. at Cartwright manner. See unconstitutional 2967; Proffitt, U.S. at (10th Cir.1987). 822 F.2d 1477 Maynard, State, Hopkinson see 632 P.2d also is question provision (Wyo.1981). also The of whether this Colorado’s statute provides constitutionally deficient need not be decid- by for automatic review the Colo- b), 16-ll-103(7)(a, jury three here because the found that Supreme rado Court. ed § (1986).6 aggravating present. factors separate were 8A C.R.S. had jury the defendant found aggravating provisions, factor Colorado's kill, party agreement to an been 16-ll-103(6)(a-k), are similar to section knowingly created the defendant one adopted other states. All but those person. risk of to another grave objective strictly determinations which are (1986). 16-ll-103(6)(e, i), 8A C.R.S. § only aggravating easily are identified. The the United States Stephens, has In Zant v. factor that been considered “constitu “significance jurisdictions, Supreme un Court addressed tionally suspect” in other aggra- circumstances, multiple one of is the invalidation of der subsection certain by the considered vating circumstances aggravating (6)(j), which describes capital in a case.” “The commit factor as follows: provided by supreme (7)(a) be as im- the review shall a sentence of death is Whenever provi- upon person pursuant rule. posed court section, (b) be im- supreme of death shall not A sentence court shall sions supreme sentence, having pursuant section if the posed to this propriety review the of that offense, im- the sentence was determines that regard char- court posed to the nature of the passion preju- offender, public under the influence acter and record of the interest, arbitrary factor or other sen- dice and the manner which the support find- presented including sufficiency does imposed, evidence was tence statutory aggravating circumstances. accuracy it information on which (1986). 16-11-103(7), C.R.S. employed 8A procedures to § was based. The L.Ed.2d 235 sentencing capital found three factors, aggravating one which was la- noting

ter held unconstitutional. After appellate state

that “different courts have conclusions,” varying

reached the Court engaged

held that where the sentencer has aggra-

anin individualized determination of factors,

vating required by Georgia stat-

ute, remaining aggravating then the “adequately

factors serve differentiate” particular case. Id. at 103 S.Ct. at basis,

2744. On this the death sentence remaining upheld aggravat- on the two

ing factors. The Court stated that “a supported

death sentence at least one aggravating

valid circumstance need not be simply

set ... ag- aside because another

gravating circumstance is ‘invalid’

sense it is insufficient itself to

support penalty.” the death Id. at result,

S.Ct. at 2746. As a either remaining aggravating

two factors suffi- support

cient to verdict in the

penalty phase. rulings

Based the United States

Supreme Court, I believe our death

is constitutional on its face constitu- applied

tional as to Richard Drake. I

would affirm the verdicts both

phases proceedings. Accordingly, I

respectfully dissent. BLAINE, Petitioner,

Patricia

MOFFAT COUNTY SCHOOL

DISTRICT RE NO.

Respondent.

No. 85SC455.

Supreme Colorado, Court of

En Banc.

Jan. 1988.

Rehearing Denied Feb.

Case Details

Case Name: People v. Drake

Court Name: Supreme Court of Colorado

Date Published: Jan 11, 1988

Citation: 748 P.2d 1237

Docket Number: 84SA34

Court Abbreviation: Colo.