The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Edward T. HAYMAKER, Defendant-Appellant.
No. 84SA497
Supreme Court of Colorado, En Banc.
March 17, 1986.
As Modified on Denial of Rehearings April 21, 1986.
IV.
We reverse the judgment of the court of appeals and remand this case to that court with directions to return it to the district court for entry of judgment in favor of the plaintiffs consistent with the views expressed in this opinion and for a determination of any further relief that may be appropriate.
KIRSHBAUM, J., does not participate.
David F. Vela, Public Defender, John P. Leopold, Special Deputy State Public Defender, Littleton, for defendant-appellant.
DUBOFSKY, Justice.
The defendant, Edward T. Haymaker, appeals his conviction and the sentence imposed by the District Court for Mesa County for first degree sexual assault, and a crime of violence. We determine that the district court did not abuse its discretion in denying a mistrial when a witness referred to certain evidence outside the scope of a stipulation or in admitting evidence of the victim‘s state of mind after the commission of the crime. We also determine that the defendant‘s sentence for sexual assault was proper because the provisions of
At trial the victim testified that she awoke about 2 a.m. on August 5, 1983, when she felt someone touch her in the pelvic area. Thinking that her two-year-old daughter was standing next to the bed, she stretched out her arm, and a man grabbed it. During the course of the next two and a half hours, the man sexually assaulted her several times at knifepoint and threatened to kill her and her daughter. After the assailant left the victim‘s apartment, she heard him walk along the balcony past her window and land with a thud on the other side of the divider which separated her balcony from that of the neighboring apartment. She then telephoned her parents, who came to her apartment, and her father immediately called the police. The victim also testified that when she was
The People presented testimony at trial that pubic hair discovered in the victim‘s bed matched the defendant‘s pubic hair, that a knife and watch taken from the defendant upon his arrest essentially matched the descriptions of the assailant‘s knife and watch given by the victim, and that entry to the victim‘s apartment was gained by loosening the screen in her daughter‘s bedroom. The victim‘s mother testified that after the assault the victim was afraid to be alone and for two months she slept with her mother, jumping and crying out if someone touched her while she was asleep. The defendant, testifying on his own behalf, claimed that he knocked on the door to the victim‘s apartment early in the morning on August 5, that she invited him in, and that after a period of time spent talking, they engaged in consensual sexual intercourse.
The jury found the defendant guilty of first degree sexual assault, first degree burglary, felony menacing, and crime of violence. The district court determined that the statutory scheme required it to impose a sentence for first degree sexual assault in the aggravated range for a class 2 felony of more than 12 but not more than 24 years. Accordingly, the court sentenced the defendant to fourteen years for first degree sexual assault, ten years for first degree burglary, and two years for felony menacing, the sentences to run concurrently. On appeal the defendant challenges two of the district court rulings as an abuse of discretion. He also challenges the constitutionality of the statutes under which the sentence for first degree sexual assault was imposed.
I.
A.
Prior to trial, the defense and the prosecution stipulated that an agent of the Colorado Bureau of Investigation analyzed certain fingerprints found at the crime scene and determined that the prints were not those of the defendant. The stipulation permitted this information to be introduced into evidence by a police officer who received it from the C.B.I. agent. During cross-examination, defense counsel asked the police officer whether the officer had obtained the fingerprints of the victim. When the officer responded that he had not, defense counsel inquired whether the stipulation precluded further fingerprint investigation. The police officer responded that it did not.
On redirect examination, the prosecutor asked the police officer if, to his knowledge, the People had offered to take other fingerprints at the request of the defense. An objection to the question was overruled, and the officer answered that the People had offered to do so. At this point, one of the two defense attorneys indicated a desire to testify concerning the stipulation, asked the court for leave to withdraw from representing the defendant, and moved for a mistrial. The court denied both motions, stating that co-counsel could question the defense attorney, as a witness, about the stipulation. The defendant here renews his argument that the district court erred in denying the motions for a mistrial and for leave to withdraw.
A mistrial is a drastic remedy for improper prejudicial conduct, and a trial court‘s ruling on a motion for a mistrial will not be disturbed on appeal unless the ruling amounted to a gross abuse of discretion. People v. Hodges, 624 P.2d 1308 (Colo.1981); People v. Sexton, 192 Colo. 81, 555 P.2d 1151 (1976); People v. Lowe, 184 Colo. 182, 519 P.2d 344 (1974). There is insufficient evidence in this case of either improper conduct or prejudice to warrant reversal of the district court‘s ruling.
The defendant argues that by denying his counsel‘s motion to withdraw, the district court placed counsel in the untenable position of either leaving the police officer‘s redirect testimony unrebutted or testifying on behalf of his own client. However, even if the court‘s ruling denied defense counsel the opportunity to rebut the police officer‘s testimony, there is no indication that the court‘s ruling prejudiced the defendant. The district court concluded that the entire fingerprinting issue was a minor collateral matter, and its conclusion is supported by the record.2
B.
The defendant asserts that the district court erred in admitting, over objection, testimony by the victim and her mother that she moved out of her apartment and into her parents’ home after the crime occurred and that she was fearful and distraught for several months after the assault. The district court admitted the testimony on the ground that it was evidence of the victim‘s state of mind within the meaning of
The critical question is not whether the evidence was hearsay but rather whether evidence of the victim‘s conduct after the crime was relevant to an issue at trial. Determinations of relevancy are in the first instance reserved to the discretion of the trial court, and the trial court‘s decision will not be reversed unless that discretion was abused. People v. Lowe, 660 P.2d 1261 (Colo.1983).
There are sound reasons for viewing with some skepticism the type of testimony in question here. Evidence that the victim was generally nervous and afraid after an alleged crime is not necessarily relevant to the question whether the crime was committed by the defendant. Even where the victim‘s state of mind is relevant for other purposes, such as whether a crime occurred, there is danger that the prejudicial character of the evidence may overshadow its probative value.
II.
A.
The defendant challenges his sentence on a number of constitutional grounds. First, he argues that the sentencing provisions of
The defendant argues that, when use of a deadly weapon during a first degree sexual assault results in conviction of a class 2 felony under
B.
The defendant next argues that the sentence imposed in this case violated constitutional guarantees against double jeopardy, which are intended, among other things, to protect a defendant against multiple punishments for the same offense.9
Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); People v. Scott, 176 Colo. 86, 489 P.2d 198 (1971). While we recognize that the sentencing scheme involved here could be viewed as resulting in cumulative punishment for the same conduct imposed under two separate statutory provisions, we conclude that the result under the scheme does not amount to the multiple punishment prohibited by double jeopardy provisions.In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the United States Supreme Court stated that “[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” See also People v. Williams, 651 P.2d 899 (Colo.1982). In light of this analysis, the statutory provisions at issue are directed to the same conduct. The proof necessary to raise first degree sexual assault from a class 3 to a class 2 felony—proof that the defendant used a deadly weapon in the commission of the crime—is identical to the proof that requires a sentence in the aggravated range.
However, the fact that two statutes address the same conduct does not automatically preclude, as a violation of double jeopardy provisions, “the imposition, in a single trial, of cumulative punishments pursuant to those statutes.” Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983). At issue in Missouri v. Hunter was a Missouri statute providing that any person committing a felony by means of a deadly weapon was also guilty of the crime of armed criminal action. Conviction of armed criminal action was to be punished by three years’ imprisonment in addition to the penalty prescribed for the underlying felony. The Missouri Supreme Court determined that the armed criminal action statute defined the same offense as the underlying felony involved in the case—first-degree robbery—and held that the imposition of punishment for both offenses violated the double jeopardy clause. The United States Supreme Court reversed, stating that the double jeopardy clause of the fifth amendment “does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Id. at 366, 103 S.Ct. at 678. The Court went on to discuss the assumption that ordinarily the legislature does not intend to punish the same conduct by two different statutes and the concomitant rule that cumulative punishments for the same conduct are not permitted in the absence of clear legislative authorization for such punishment. However, the Court concluded that
Where ... a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under Blockburger, a court‘s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.
Id. at 368-69, 103 S.Ct. at 679.
Missouri v. Hunter requires us to reject the defendant‘s argument that the sentence imposed in this case violated the double jeopardy clause of the federal constitution. Because the crime of violence statute, like the armed criminal action statute in Hunter, is a sentencing provision, People v. Eggers, 196 Colo. 349, 585 P.2d 284 (1978);10
Although we are not bound to adopt the reasoning of the United States Supreme Court in construing the scope of the protection afforded by the double jeopardy provision of our state constitution, we find no basis under Colorado case law12 or the double jeopardy language in the Colorado Constitution for diverging from the Court‘s analysis in Missouri v. Hunter. Applying that analysis to the facts before us, we hold that the imposition of sentence under section 18-1-105(9)(a)(I) on a defendant convicted of first degree sexual assault under section 18-3-402(3)(c) does not constitute double jeopardy.
C.
The defendant‘s final constitutional argument is that the sentencing scheme deprived him of due process and equal protection of the laws because the scheme is not founded upon a rational distinction between offenses. It appears that this argument is based, in part, upon the misapprehension that a defendant in the “same factual posture” as the defendant here might not receive a sentence in the aggravated range
The defendant‘s argument also suggests that the difference between the penalty imposed on him, fourteen years, and the penalty prescribed for a person convicted of first degree sexual assault as a class 3 felony, four to eight years, is not justified by any substantial difference in the nature of the crimes. The factor that resulted in the imposition of a sentence in the not less than 12 but not more than 24 year range in this case is the use of a deadly weapon. We recognize that “statutory classifications of crimes must be based on differences that are real in fact and reasonably related to the purposes of the legislative enactments.” People v. Wilhelm, 676 P.2d 702, 704 (Colo.1984). See also People v. Velasquez, 666 P.2d 567 (Colo.1983); People v. Mann, 646 P.2d 352 (Colo.1982). However, the General Assembly may establish more severe penalties for acts that it believes have graver consequences. See, e.g., People v. Thatcher, 638 P.2d 760, 766 (Colo.1982). The legislature rationally could perceive that use of a deadly weapon during the course of a first degree sexual assault—the conduct that mandated the defendant‘s aggravated sentence—is more reprehensible and dangerous than commission of a first degree sexual assault without the use of a deadly weapon. Therefore, the distinction between the sentence mandated for the defendant here and the four to eight year punishment prescribed for the class 3 felony of first degree sexual assault at the time the defendant was convicted is consistent with the guarantees of equal protection and due process.
Our holding conflicts with the decision of the court of appeals in People v. Montoya, 709 P.2d 58 (Colo.App.1985), cert. granted November 11, 1985, in which the court held that the sentencing scheme at issue here—although raised in the context of first degree assault where the defendant caused serious bodily injury by means of a deadly weapon—violated equal protection. The court of appeals concluded that, because the mandatory sentencing provision for use of a deadly weapon duplicated the element of first degree assault requiring use of a deadly weapon, the defendant‘s sentence was increased without a rational basis. For the reasons set forth in this opinion, we disapprove the court of appeals’ conclusion in Montoya that the sentencing scheme for violent crime involving the use of a deadly weapon violates equal protection. Whether evaluated under equal protection or due process standards, the sentencing scheme here is rational. It does no more than set a penalty range for particular crimes involving use of a deadly weapon.
The court of appeals recently has held that an element of a crime may not be considered as an extraordinary or aggravating circumstance that would justify a sentence beyond the presumptive range. In People v. Manley, 707 P.2d 1021 (Colo.App.1985), the court of appeals decided that injury to the victim in a vehicular assault case could not support a discretionary sentence in the relevant aggravated range because serious bodily injury was an element of the substantive offense. Similarly, in People v. Russell, 703 P.2d 620 (Colo.App.1985), the court reversed a sentence in the aggravated range for the crime of escape imposed on the basis of section 18-1-105(9)(a)(V) that provides that commission of a felony while under lawful confinement or after escaping from lawful confinement is an extraordinary aggravating circumstance.
Insofar as the court of appeals in Manley and Russell did not recognize a blanket constitutional prohibition against basing an aggravated sentence on an element of the crime, those decisions are consistent with our holding in this case. In both Manley and Russell the court of appeals determined that there was a question whether the legislature would have considered an
The judgment of conviction and the sentence entered by the district court are affirmed.
ERICKSON, J., specially concurs.
ERICKSON, Justice, specially concurring:
I concur but write separately to point out the limited significance of the mistrial issue raised by defense counsel and addressed in part I.A. of the opinion. I concur in the result reached in parts II.B. and C. of the opinion but for somewhat different reasons.
I.A.
The prosecution contended that the defendant gained entrance to the victim‘s apartment through the removal of a screen on a window. Neither his fingerprints nor those of the caretaker were on the screen and a stipulation was made to permit testimony as to the absence of fingerprints without further foundation. The defendant‘s theory of the case was that the defendant knocked on the victim‘s door, and that the victim admitted him and then consented to and voluntarily engaged in sexual intercourse. The defendant did not deny that he was in the apartment. The absence of the defendant‘s fingerprints on the screen, to the extent relevant, supported the defendant‘s theory that the victim voluntarily admitted him to her apartment. The motion for a mistrial was predicated on proposed testimony beyond the stipulation on fingerprints and would not have enhanced the defendant‘s case. In my view, the errors asserted and addressed in part I.A. of the opinion totally lack merit and do not justify comment. See People v. Gladney, 194 Colo. 68, 570 P.2d 231 (1977) (reviewing court will not engage in abstract speculation to find prejudicial error).
II.B.
I agree with the court‘s conclusion that the sentence imposed in this case did not violate the double jeopardy provisions of the United States or Colorado Constitutions. Under Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the imposition of cumulative punishments for the same offense does not violate protections afforded by the double jeopardy clause if the legislature intended to authorize the additional punishment. Here, there can be no question that the legislature intended to authorize punishment for a crime of violence in addition to the punishment for first-degree sexual assault.
II.C.
In part II.C., the majority holds that additional punishment predicated upon the commission of a crime of violence is not contrary to due process and equal protection of the laws. I agree. However, I would go no further in this case than to conclude that the General Assembly intended and, consistent with constitutional protections, provided for enhanced punishment. To the extent that People v. Montoya, 709 P.2d 58 (Colo.App.1985), is contrary to our holding, the case should be disapproved. The rule of lenity relied upon in People v. Manley, 707 P.2d 1021 (Colo.App.1985), is inapplicable because the legislature‘s intent is apparent on the face of the crime of violence statute.