People v. Rodriguez

Colorado, of the State of PEOPLE Plaintiff-Appellee/Cross-Appellant, RODRIGUEZ,

Frank D. Defendant-

Appellant/Cross-Appellee.

No. 91SA112. Colorado,

Supreme Court

En Banc.

March Rehearing

As on Denial Modified 15, 1996.

April

239

241

245 Norton, General, Attorney Stephen A.

Gale ErkenBrack, Deputy Attorney K. Chief Gen- eral, Timothy Tymkovich, M. Solicitor Gener- al, Dailey, Deputy Attorney Daniel John General, Russel, Robert Mark First Assis- General, Petrusak, Attorney tant Robert M. General, Attorney Senior Assistant Criminal Section, Denver, Plaintiff- Enforcement for Appellee/Cross-Appellant. Vela, Defender, F. Mi-

David State Public Heher, Deputy chael J. State Public Defend- er, Denver, Kelly, Nora for Defendant- V. Appellant/Cross-Appellee. R., v. at 545- Opinion sion of the above offenses.

Justice ERICKSON delivered of the Court. Rodriguez’ separate proceeding, Frank the trial court1 sentenced brother, Rodriguez, was Rodriguez participation in Chris convicted to death his murder, first-degree robbery, following kidnapping, rape, and murder of crimes: assault, aggravated motor imposi firsLdegree sexual

Lorraine Martelli. We affirmed theft, sentence, second-degree kidnapping, rob People v. Rodri vehicle tion the death (Colo.1990) bery, first-degree mur guez, (Rodriguez conspiracy to commit P.2d 965 der, IV), second-degree Supreme conspiracy commit and States Court the United Colorado, aggra to commit kidnapping, conspiracy v. denied certiorari. People Rodri vated motor vehicle theft. S.Ct. L.Ed.2d 789 (1991). (Colo.App.1989), Rodriguez guez, P.2d cert. Pursuant to Crim.P. (Colo. 1990). denied, postconviction Jan. sought of his death No. 89SC600 review granted in Martinez convicted second-de sentence. The district court relief David was twenty part, gree kidnapping in sentenced to part, denied relief and refused to R., years. prosecution v. 67 The sentence. Both at 105. vacate the death prosecution appealed. granted immunity in ex We affirm in Patricia Thomas charge part, testimony and did part, part change remand in for her reverse epi participation in the criminal with directions. her for her R., v. 2 sode. at 8. I penalty phase Rodriguez’ Prior to the History prosecution, Facts and Procedural a ha- the trial court conducted proceeding pursuant to sec- bitual criminal 14, 1984, Rodriguez;2 his On November (1984 16-13-103, Supp.), tion 8 C.R.S. Martinez; brother, Rodriguez; David Chris beyond found a reasonable doubt participated and Patricia Thomas events of three had been convicted which culminated the brutal murder of prior at 63-65. felonies. v. 33 Lorraine Martelli. facts of the murder trial, phase People Rodriguez, penalty At are set forth (Colo.1990) IV), statutory (Rodriguez jury aggravating 969-971 found six denied, 770, 112 beyond factors existed a reasonable doubt: cert. U.S. S.Ct. (1991).3 (1) felony committing while a L.Ed.2d 789 convicted Rodri murder under (2) murder, first-degree imprisonment; intentionally guez first-degree of fel sentence of murder, first-degree assault, person kidnapped by by ony killing first- a him or sexual (3) him; theft, anyone intentionally degree aggravated motor vehicle sec associated with agree- ond-degree kidnapping, aggravated robbery, killing person a furtherance of an (4) murder, kill; intentionally conspiracy first-degree causing ment to commit person conspiracy second-degree kidnap death of a in the course of or to commit first-degree ag felony a or in his ping, conspiracy to commit furtherance of immediate (5) therefrom; theft, flight killing in especially vehicle and five an gravated motor counts (6) heinous, manner;4 using deadly weapon during depraved cruel or and commis Throughout opinion, ify representing public from Rodri 1. this we use term "trial defender guez presided because of a of interest. In Rodri to the which over conflict court” refer court (Colo. Court, 1986) guez Rodriguez’ P.2d 699 guilt penalty phases v. District trial. and I), (Rodriguez Rodriguez held that to refer We use the term "district court” bias, grounds prove prejudice, failed to or other Rodriguez' postcon- presided court which over disqualification judge that warranted the trial viction motions. whether and remanded Rodriguez voluntarily, a determination of "Rodriguez” opinion, 2. In this we use refer to knowingly, and intelli Rodriguez Rodriguez' Frank and refer to Frank represen gently right waived his to conflict-free brother, Rodriguez, by both first and last Chris tation. Id. at 702-08. name. IV, that, Rodriguez in the 4.In we held absence instruction, trial, aggravating During Rodriguez original limiting filed an factor espe- challenging proceeding committed the offense in an the trial court’s orders "the defendant heinous, denying cially depraved judge cruel or manner” violat- motion for recusal of the trial his Eighth granting prosecution's disqual- ed because that factor motion to Amendment 25, 1991, committing purpose murder for the Rodriguez of avoid- On March filed a 35(a) (c) ing preventing prosecu- a lawful arrest or Crim.P. motion the district R., 746-52; 16-11-103(6), § tion. v. 4 at see court and a appointment motion to obtain the (1986). private 8A C.R.S. further investigate litigate found counsel to mitigating that the outweigh factors did not claims of ineffective assistance of counsel. aggravating 12,1991, April prosecution factors and sentenced Rodri- Id. On filed a guez to death. v. 4 at 753. motion to dismiss motions on the ground jurisdic- that the district court lacked stayed The trial court the death sentence pendency tion over the case due to the pending appeal, pursuant an automatic direct 35(b) appeal Crim.P. in this court. Id. at 16-11-103(7), (1986), to section 8A C.R.S. 19, 1991, April Rodriguez 881. On filed 4(d).5 C.A.R. The Colorado State Public De- previously motion to withdraw the filed represented Rodriguez fender’s Office on di- 35(a) (c) Crim.P. and motion. Id. 888. On appeal. rect After four extensions of time to 30, 1991, May we ordered that the case be opening nearly file an years brief and two remanded to the district court for the limited after the case had been docketed in this purpose setting permit a time frame to court, 138-page defense counsel filed a docu- Rodriguez postconviction to file and all Brief,” Opening ment entitled “Partial with a relating claims to his conviction and sen- protest complete that- a brief could not be tеnce. Id. at 889-91. We further ordered filed without an additional extension of time.6 hearing the district court conduct a on Am.R., v. Rodriguez 18 at 1-151. attached all such claims that it appropriate deemed appendix an Opening to the “Partial Brief’ ruling unnecessary and issue a final without which listed 102 additional issues which he 8, 1991, delay. July Id. On the district raise, claims he wanted to but could not Rodriguez post- court ordered that submit all because of unreasonable time limitations and August trial motions 1991. Id. at 897. inadequate Am.R., an appeal.7 record on v'. 5 August 1219-1231. On filed a 35(c) posteonviction Crim.P. motion for re- appeal, On direct we affirmed the death view of his death sentence which was over IV, sentence. 794 P.2d 965. On pages and raised 319 claims for relief 11,1991, February filed Crim.P. relating guilt penalty phases to the 35(b) sentence, and, motion for reduction of Am.R., appeal. the trial and the direct 21, 1991, February the district court de- 11-13, Rodriguez’ postconviction w. mo- Am.R., relief. nied at 823. On March relating tion also contained claims to ineffec- 13,1991, Rodriguez appeal filed a notice of newly tive assistance of counsel and discover- appeals seeking the court of review of the ed evidence. 35(b) district court’s denial of his Crim.P. 28, 1991, 11, 1991, motion. Id. at 889-91. On March On December the district court accepted jurisdiction appeal appointed independent we over the and Richard Hostetler as granted Rodriguez’ stay for investigate litigate Rodriguez’ motion of exe- counsel to and cution. Id. claims of ineffective assistance of counsel. (Colo.1990) (Ro provide guidance capi- ple Rodriguez, failed to to the v. sufficient dri III). guez tal sentencer. P.2d at 982-83. We conclud- aggravating ed that the inclusion of that invalid beyond factor was harmless a reasonable doubt 28(g), principal 6. Under C.A.R. briefs of both require Rodriguez’ and did that death sen- parties thirty pages reply shall not exceed and a eighteen tence be vacated. Id. pages brief shall not exceed without permission appellate permitted court. We prosecution appeal, granted both the defense and the to exceed 5.After we submission of page imposed by prosecution's limits the rule. request for a limited remand to the prosecution trial court to determine whether the required possibly exculpato Opening should be to disclose 7. The "Partial Brief" raised errors relat- ry People Rodriguez, ing solely penalty phase evidence the defense. v. to the trial. The (Colo.1989) II). (Rodriguez appendix Opening 786 P.2d 1079 Fol to the "Partial Brief” listed remand, lowing relating guilt penalty phas- the limited we held that the state errors to both the and Rodriguez. must disclose such evidence to Peo es. kidnap- 19, 1993, second-degree Am.R., January conspiracy to commit at v. 6 1486. On 35(c) separate Crim.P. mo- Hostetler filed ping, conspiracy aggravated to commit claiming Rodriguez ineffec- that received tion motor theft. vehicle during guilt tive assistance counsel question appeal on is whether primary The phases trial and on direct penalty of his determining that Am.R., the district court erred The dis- appeal. v. 7 at 1631-1647. hearing Rodriguez’ on court held a war- Rodriguez’ trict did not 35 motion Crim.P. of counsel claims of ineffective assistance death sen- rant and vacation of his reversal and, 7, 1993, on October denied relief. Id. court’s tence. conclude the district We 1762-88. Rodriguez’ duplicative sentences vacation of 14, 1994, February court district On of Rod- and our to the district court remand 35(c) Rodriguez’ motion ruled on Crim.P. as- riguez’ first-degree for sexual conviction August had been on 1991. The filed parts felony, sault a class see as infra Rodriguez’ convictions district court vacated IX(A) XIV, only avail- provide the relief murder, felony conspiracy to commit sec- present- Rodriguez arguments on the able ond-degree conspiracy kidnapping, Accordingly, ined his Crim.P. 35 motions. theft, aggravated motor vehicle but commit part, and re- part, we affirm in reverse Rodriguez’ vacate motion to the death denied part mand in with directions. R., v. 1 216-219. district sentence. The remaining Rodriguez’ all court denied 152-222, claims, postconviction see id. but II ruling allegations newly

reserved on the at 221-222. evidence. Id. On discovered Previously Litigated Issues court held a March the district A hearing Rodriguez’ newly claims of discov- evidence and denied relief. See ered 110 of The district denied 67 at 182-83. postconviction Rodriguez claims raised appeals now the district court’s 35(c) motion,9holding that Rodri his Crim.P. 35(c) postconviction of his Crim.P. denial guez previously claims he could not raise and its to vacate his death claims refusal appeal this court raised on direct and which Opening Brief on this sentence. Rodriguez, previously People resolved pages and raises 151 appeal is issues. (Colo.1990) IV), (Rodriguez 794 P.2d 965 Appendix of these issues is attached list Denver, Ct., City Cty. v. Dist. & appeals the A.8 also district I). (Colo.1986)(Rodriguez On P.2d alleging denial of his claims ineffec- court’s specifically appeal, Rodriguez asserts This was tive assistance of counsel. issue appeal. issues, separately comprised briefed on this of or following which are dis contain which the district court claims prosecution cross-appeals, arguing 9, 10, 5, 6, posed previously litigated: of as erroneously vacated the district court 96, 106, 135, 136, 137, murder, 90, 91, 92, felony Rodriguez’ convictions for R., so, doing court Rodriguez’ Opening v. at 155-77. In the district Brief demonstrates 1 Therefore, part and 289 listed Claims 20 twice. purpose page limitations indeed serve a useful do only disposed 109 I of court order of the district process. prevention C.A.R. in the of abuse See Rodriguez’ claims. pages 28(g). requests additional Future for shall good forth cause for the extension of limita- set order, 111(A) part In of the the district court specify pages the number of additional tions regarding three claims recusal concluded that requested. judges "previously v. 1 resolved." had heen However, two three claims at 213-14. of these order, part part I of the district court the court were included in the claims resolved also Thus, III(A) Rodriguez’ parts claims under the head- listed 111 of its I of I and the order. collectively, ing denied 110 of order the district court "DEFENDANT CANNOT RELITIGATE previously litigated. 319 claims ON APPEAL." HEREIN CLAIMS RESOLVED

249 138, 150, argument appeal to which a right defendant could as of inadequacy appeal of the on record denied has question.” ruled on the merits of the him effective assistance counsel.10 Is 22-6.1(a) § ABA Standards at 22-62. More sue 1 appeal, attempts of this over, argument an raised under Rule 35 salvage remaining claims which the dis which precisely duplicate does not an issue disposed trict previously litigated, court of as appeal precluded raised on will if be its re asserting ruling that “the district court’s view nothing “would be more than a second already Mr. appellate had had re appeal addressing same issues on some many postconviction view of claims his recently theory.” contrived constitutional Rodriguez’ Open motions was erroneous.” (Colo. Bastardo, 382, People v. P.2d 646 383 ing Brief at 32-37. conclude that We Rodri 1982). guez’ specifically failure to reassert on this appeal all of the which claims the district Supreme The United States Court disposed court previously litigated of as on concept grounds” has defined the “same appeal direct constitutes conscious relin purposes for applications of successive quishment of those claims which he does not postconviction by prisoners: federal relief reassert. Accordingly, only we address postconviction those claims that By “ground,” simply we mean a sufficient specifically appeal. reasserts on this legal granting sought basis for the relief by applicant. example, For the con-

B involuntary tention that an confession was against him admitted evidence is a Rodriguez has no dis- constitutional review; right postconviction rather, any ground tinct for federal collateral relief. right statutory. People he has is v. Wiedem involuntary But a pred- claim of confession er, 424, (Colo.1993). 852 P.2d pre 438 We alleged psychological icated on coercion validity judgment sume the of convic “ground” does not raise a different than place upon Rodriguez tion and the burden to predicated alleged physical does one right preponder establish his relief words, coercion. In other identical Naranjo, ance of the People evidence. See v. grounds may proved by often be different (Colo.1992). 840 P.2d 325 also, allegations. factual So identical grounds may supported by often be differ- proceedings Rule 35 are intended legal arguments, ent or be couched in dif- prevent injustices after conviction and sen language, vary in ferent immaterial re- tencing, provide perpetual review. spects. 131, 133, People Hampton, v. 187 Colo. 528 (1974). P.2d Accordingly, Rodri States, 1, 16, Sanders v. United guez proceeding cannot use a under Rule 35 (cita- (1963) 1068, 1077, S.Ct. 10 L.Ed.2d 148 relitigate fully finally matters resolved omitted); Scheer, People tions see also v. Johnson, appeal. People in an earlier v. (1974) 15, 19, (holding Colo. 518 P.2d 833 (Colo.1981); People Trujil 638 P.2d previous Crim.P. 35 attacks on the voluntari- lo, 497, 500, 1312, 1314 190 Colo. ness, coercion, adequacy of advisement (1976); 49, 52, People, Morse v. 180 Colo. precluded guilty plea raising of defendant’s (1972); People Bradley, P.2d alleging similar attack that defendant did not (1969); 169 Colo. P.2d charge). understand the nature We Justice, ABA Standards for Criminal Post- use this our 22-6.1(a) standard to assist review of (2d § conviction Remedies 22-62 1986).11 disposed those claims which the district court “fully finally ed. An issue litigated highest having previously litigated. when of as of the state been 11(C),11(D), parts 10. We discuss these lied on the Association issues American Bar Standards III, VII(D), XIII, IX(C), IX(G), XVIII(F). and Relating apply to Remedies” and Postconviction ing relating post- the Standard to timeliness of Muniz, 1377, People 11. See v. 667 P.2d 1381 claims). conviction (Colo. 1983) (stating generally "we have that re 250 III

C 35(c) motion, Rodriguez In his Crim.P. Inadequately Raised Issues the challenging claims con raised numerous “may be postconvietion motion sentencing stitutionality capital the stat where, here, summarily not denied as it does 16-11-103, (1986), ute, § 8A C.R.S. under specify the facts which constitute the basis which he was sentenced. district court charge.” People that our v. Tenne Hooker v. held decisions the unconstitutional son, (Colo.1990), People v. 226, 376, 788 P.2d 786 and 228, 477 People, 173 P.2d 377 Colo. Davis, denied, (Colo.1990), 159 P.2d cert. (1970). motion, postconviction In Rodri his 662, 112 1018, 111 L.Ed.2d 656 S.Ct. many guez raised claims which did little (1991), R., disposed Rodriguez’ v. claims. allege that and sen more than his conviction 3, Rodriguez 1 at In chal 209-10. Issue illegal were and unconstitutional. tence propriety the lenges district court’s did not set forth facts from These claims and, 5, 6, 7, ruling, in Issues and he any could basis for which court discern collectively his attack on the death reasserts action unconstitutional or inaction. See id.13 statute. many reasserts of these issues Tenneson, Our decisions appeal. appeal, Rodriguez on this On must Davis, 789-92, and 794 P.2d at P.2d 170- specific to inform this court “both as constitutionality upheld the of section 16- grounds, upon relied and as to the errors rejected argument 11-103 and that the supporting facts authorities therefor.” penalty death violates the Cruel and Unusual People Diefenderfer, 784 P.2d Due Process of the Punishment and Clauses (Colo.1989). Many of the issues reasserted United States the Colorado Constitu they appeared as in the motion appear We see no to that tions. reason overrule inadequately supported in are likewise this precedent. Accordingly, reject argu we proceeding. Accordingly, we affirm dis- 6,3, 7, 8, and raised in Issues 87.12 ments following issues: trict court’s dismissal of error); 21 (alleging Issue cumulative Issue Davis, In we held that a court is not plea (challenging bargain given to required provide constitutionally propor to Martinez); (alleging that David Issue 34 this tionality aof death sentence or to review gave preferential treatment to the punishment inquire as whether the im prosecution); (alleging prosecutorial Issue 37 posed disproportionate on the defendant surrounding misconduct Patricia Thomas’ imposed on punishment others convicted testimony); (challenging Issue admis- offense. 794 P.2d at 173-74. the same “probability” “reliability” sibility of evi- precedent We see no reason set aside. fibers); reject concerning hairs and Issue 43 Accordingly, we Issues and 9. dence proof mitigating prosecution prove that the trial that In Issue asserts 11—103(l)(d). put proof § on the court’s refusal a burden of factors did not exist. See 16— prove mitigating prosecution factors did properly The tria! court instructed prejudicial exist error. Tenne- constituted proved mitigating "a factor does not have to be son, process we scrutinized the death statute's proof. by any burden of You must find that a against weighing mitigating aggravating factors mitigating factor exists there is evidence to if to the and held that instruction “[a]n factors Accordingly, support it.” at 767. we they beyond a reasonable must be convinced find no error. any mitigating do not out- factors doubt aggravating statutory weigh proven factors 13. represented by was counsel all imposed of death can be ade- before sentence stages guilt penalty phases, critical see appropriately the de- quately and communicates Hooker, (noting Colo. at 377 reliability in the gree of that must inhere balanc- counsel), significant presence and we Rodriguez' ing process.” case, 788 P.2d at holding our here to such a situation. imposed confine no burden of the death statute

251 prosecu- (challenging admissibility specify legal grounds the errors and relief concerning (challeng- on at the court level: 4 tion’s evidence the cuts David district Issue hands); (challenging ing qualify Martinez’ Issue 45 the trial court’s refusal to death admissibility exhibits); judge); (alleging Issue 10 on of certain Issue 47 bias part Phillips); prosecution’s discriminatory Judge portions 11 (alleging use of of Issue (those strikes); portions alleging peremptory (alleging unauthorized com- Issue 60 ex judges munication Rodri- parte regarding trial between communication between the guez’ error in case and the trial court’s refus- jurors); jury Issue (alleging 63 defective judge al to have a from another hear summoning selection); district (alleging Issue 66 case);15 (alleging discovery Issue 24 vio- on voir concerning limitations dire com- lations); (alleging police Issue 26 to failure mutation death row in New Mexi- inmates 14 exculpatory obtain evidence Mar- co); from David 94 (alleging Issue in the trial error Thomas); (alleg- tinez and Patricia Issue 29 require refusal to court’s David Martinez to ing Rodriguez provided that was not with cooperate Rodriguez’ with investigation); Is- witnesses); prosecution oral statements (alleging Rodriguez’ sue 97 that letters and violations); (alleging discovery Issue 32 Is- Margie Marquez statements involun- were sue (alleging Rodriguez 33 that not af- was statements); tary (alleging Issue 98 inade- adequate opportunity prepare forded or quate day representation jury on the first adequate file an brief on Is- appeal); direct selection); Issue (alleging the trial (alleging sue 40 error in the trial court’s comply Supreme court’s failure to with a Rodriguez impeach refusal to allow Patri- day regarding jury Court order the first cia videotaped testimony); Thomas with Is- selection); (alleging prosecutorial Issue 105 (alleging improper sue 44 admission of testi- regarding Margie Marquez); misconduct mony); portions (alleging of Issue 46 (alleging Issue charges that the and con- right denied his mo- was to make “circular”). victions were tions, objections, regarding and record bench attempts also to use his penalty phase jury conferences instruc- appeal fortify brief on this a number of tions); (alleging Issue 48 re- unreasonable inadequately supported by issues raised or dire); strictions on voir Issues 52 and his motion. Because the court can district (alleging refusing trial court error in to ex- summarily inadequately pre dismiss claims prospective jurors cuse for cause knew who Colo, it, Hooker, see sentence); sented to Rodriguez’ of Chris conviction and 377, our P.2d at consideration of issues (alleging such Issue 53 error the trial court’s appeal of ju- on the district would appropriately prospective court’s order failure to swear 35(e) effectively grant Rodriguez rors); (alleging a successive Issue error in the trial burdening seques- motion without also him with the court’s refusal to allow individual dire); appropriate harsher standard of review to a (realleging tered voir Issue 58 defects part procedure day successive motion. IV. the first selec- infra grant tion); (alleging We decline to deference inadequate this Issue 59 voir instead, and, uphold panel the district court’s dis dire of due to one defense counsel’s claims, regardless inexperience); (alleging missal of these of the ade Issue 64 limi- undue dire); quacy presentation appeal. upon (alleging of their error tations on voir Issue 76 following potential We refuse review the issues the trial court’s refusal to excuse cause); adequately juror (alleging because of failure to im- G.P. for Issue 77 reality, portion the court voir dire on which did not refuse 16. We address of Issue 46 alleges inability contemporaneous to make subject an of commutation. discussed Counsel pro- 2-6, objections court, R., and, a record on the selection with the matter v. 20 at VI(B) opinion. part cess in of this appropriate during where on media the voir dire coverage, questioned jurors the court on that 58, Rodriguez 17. Also in asserts that the Issue See, e.g., subject. id. at 22-23. making prevented Rodriguez trial court from objections contemporaneous or a record on portion relating We address of Issue 11 during jury day We seleсtion as a whole. Rodriguez' Judge part Peterson's involvement in case have addressed issue on its merits in VI(B) part opinion. opinion. XIII of this of this 252 pri- on jurors based potential for cause counsel nevertheless eliminated

proper of excusal 19 views); Rodriguez penalty Issue 79 1 now ority.” to their death v. at 178. due failure to (alleging in the trial court’s generally error his not to contends that decision jurors who aware of Chris Rod- instruct were pursue appeal does not these claims on direct fact); riguez’ conviction not to consider specifically reas- and then constitute waiver (alleging error in the trial court’s Issue 82 many appeal on of these issues this serts of panel prospective refusal to strike the of Of the postconviction relief. the denial of jurors prosecutor to stated that whom issues, many are remaining we conclude that right get to “defendants want sentenced be- waived. Christmas,” R., 133); v. 20 Issue 85 fore is Although for waiver essen- the standard refusing pre- in (alleging court error to trial many of proper to the tial determination prosecution arguing from theories clude claims, little postconviction we have had occa- argued in the trials of inconsistent with that Zant, McCleskey it. v. to address See sion participants); (alleging the other Issue 86 1454, 1461, 467, 477, 113 111 S.Ct. in of evidence of David error the exclusion (1991). part, arrest); we 517 For most physical condition after Is- L.Ed.2d Martinez’ testimony only allowing obliquely, in (alleging sue 88 error have addressed standard photographs into regarding not admitted evi- through and dismissals of claims. See dicta dence); inadequate (alleging waiver Issue 89 which do id. The case law and dicta address (al- testify); Rodriguez’ right Issue 90 to easily synthesized, are not but the standard photographs); leging erroneous admission at the time indicate that the state of law prosecutorial (alleging ex- Issue 91 erroneous precludes Rodriguez’ appeal waiver direct Margie Marquez to Rodri- amination of as number of constitutional issues the limited letters); (alleging guez’ Issue erroneous 92 appeal. Rodriguez which reasserts on this prosecution’s allowance of the cross-examina- jail chaplain); (alleging tion of the Issue 93 justice system in The criminal is erroneously the trial court concluded guilt escape shall not tended ensure “that police statements to after his Berger v. United innocence suffer.” 99(B) voluntary); (alleging Issue arrest were States, 78, 629, 633, 79 295 55 S.Ct. U.S. judicial bias);18 in (alleging 100 error Issue (1935). system, post- 1314 Within that L.Ed. jail chap- refusal to allow the the trial court’s proceedings purpose: have a dual conviction sitting wear collar while with the lain to his injustice prevent constitutional family); (alleging 103 Issue error People bring finality judgment. v. See trial); (alleg- scheduling in Issue P.2d Hampton, Colo. process); prosecutorial violations of due ing (1974). (alleging that was Issue 151 emphasized point, trial). “Let it be at this howev- competent to stand not er, by no that a that it means follows bare 41, Rodriguez alleges error in the In Issue allegation in the case at such that made of postconviction dismissal district court’s automatically prisoner who bar entitles now claims which he reasserts Issues appealed has not to what is effect an 43, 44, 45, hold and 88. Because we these possibility a new trial appeal with the inadequately present- underlying issues be resulting acquittal. perhaps Prison ed, reject we Issue easily. gates swing open do so IV path appellate this route relief added.) steep (Emphasis and narrow.”

Waiver 136, 142, People, Haines 169 Colo. 191 claims The district court disallowed (1969) appeal, (quoting Desmond v. were for but which P.2d which “available 99(C) alleges unduly claims included some claims which re- 19. These 191 Issue contempora- Rodriguez' ability appendix to make stricted neous to his "Partial listed an objection during We have ad- voir dire. appeal Opening as issues which Brief” direct VI(B) opinion. part that issue in dressed would have raised but time limitations. he does not raise consti- The remainder of Issue 99 part IV. tutional error. infra (1st States, United 333 F.2d same effectively 380-81 Cir. issues could have been 1964) addressing posteonviction [appeal].” People Bradley, raised on claim 262, (1969).20 265, 199, indigent that an Colo. 455 200 defendant was denied his P.2d conviction). 18, People, 20, right See Sackett v. appellate to review of his 176 Colo. 488 (1971). 885, P.2d prosecution argues 886 The Although posteonviction proceedings that, for Rodriguez bring to claims which he error, are correct intended to constitutional could have appeal raised on direct but did right bring proceeding to such a is statu not, special he must show circumstances or Wiedemer, tory, People v. constitutional. justifiable However, excuse for his failure. (Colo.1993). 424, 852 P.2d 438 prosecution supports argument this with exploits statutory right through his ex relating cases and standards to successive ceedingly long disjointed and presentation of motions, posteonviction opposed to cases his case to both this court and the district relating posteon- and standards to the initial thereby goal finality. court and of inhibits the viction following prosecution proceed motion Hubbard, 243, 247, People v. 184 Colo. and, ings taken, See, appeal. where direct (1974) 945, (holding 519 P.2d 947-48 same in Buckallew, e.g., 774, Turman v. 784 P.2d 780 motions). posteonviction context of successive (Colo.1989) (affirming of dismissal claims However, a of because sentence death is in corpus petition raised second habeas be qualitatively punishment, unlike other cause defendant failed to raise those claims Ohio, 586, 604, Lockett v. 438 U.S. 98 S.Ct. petition); People Billips, first 652 v. 2954, 296<R65, (1978); People 57 L.Ed.2d 973 (Colo.1982) (allowing P.2d 1063 defen (Colo.1990) v. Rodriguez, 794 P.2d bring dant to a claim constitutional on a IV), denied, (Rodriguez cert. posteonviction successive because motion (1991), S.Ct. L.Ed.2d 789 and fully finally claim litigated had not been corresponding because a need exists for reli posteonviction previous procеeding); ability sentencing procedure, death Hubbard, at 184 Colo. 519 P.2d at 948 IV, 794 P.2d at we will ad that, (holding posteonviction on successive dress the motion. motions, may summarily the court dismiss petitioner have a newly-asserted We held that grounds absent sufficient ex cuse); may of raise issues constitutional error in a ABA for Standards Criminal Justice: posteonviction proceeding “although § the Posteonviction 22-6.2 Remedies at 22-67 many respondent. 20. We procedure gov- have followed sections of the Ameri- Where a rule or erning can Bar prosecutions Association Standards for Criminal Jus- of conduct criminal re- see, Remedies, e.g., People tice: quires specified objections Posteonviction defenses or be Muniz, (Colo.1983), time, presented 667 P.2d applicant at certain an express approval now our of Standard 22-6.1 as posteonviction proceeding raises in a an issue finality regarding the rule in Colorado of a con- might presented been have but was not viction and sentence. American Bar Association timely proceeding leading in the manner to Criminal conviction, Standards for Remedies, Justice: Posteonviction judgment applicant should (2d 1986). § 22-6.1 22-62 ed. Sec- required be show to cause for failure to (b) (c) provide: tions that Standard comply procedure. with the rule of In other instances, proof burden abuse of (b) process, Unless barred because of abuse of process respondent. be borne should posteonviction applications claims advanced in 22-6.1(b), (c) § ABA 22-62. Standard The merits, though should their even be decided on application neither not, of this Standard would vio- been, they might fully have but were process by depriving late due of all the defendant finally litigated proceedings leading in the to "ability challenge validity constitutional judgments conviction. Thomas, conviction,” People a 880, (c) see applicant posteonvic- Where an raises in (Colo.1994), with nor conflict Crim.P. legal proceeding a factual tion or contention Rather, approval indi- deliberately our this Standard which the defendant inexcus- agreement with Bar cates our the American As- ably (i) procedural sociation that criminal rules "can be proceeding judg- raise in failed to defendant, conviction, or, explanation, undermined if a without ment of (ii) permitted raise the for the having same matters raised the contention in the court, posteonviction proceeding.” pursue appeal, first time in a ABA the matter on failed 22-6.1, History § deny ground Standard may of Standard 22-62 a court relief on the of an (2d 1986). However, process. process to -63 we decline abuse of Abuse of should be ed. pleaded by apply retroactively defense be to this case. an affirmative Standard Opening (2d 1986) judg appeal.”21 on “[fjinality of a direct (regarding ed. However, of two- repeti at 37. his reassertion postconviction proceeding; in a Brief ment his aban of the “waived” claims and applications”). thirds tive a conscious of the rest indicates donment this court in prosecution contends that relinquishment of those claims not reassert Bastardo, (Colo.1982), P.2d People v. Moreover, claims will be unavail ed. these appeal on that claims available direct held subsequent application for review able postconviction pro- may brought in a not be Hubbard, 184 posteonviction relief. See ceeding. contention miseharacterizes This (inter 249-52, at at P.2d 949-50 Colo. 519 Bastardo, holding we in Bastardo. ABA preting in with Rule 35 conformance postconvic- affirmed the trial court’s denial of existed); § then ABA Standard 6.2 it (1) grounds: “the tion on two issues relief 22-6.2(b) 22-67;22 § at see also Standard when the were available for review raised 489-96, at McCleskey, 111 S.Ct. appeal” post- on the and case was reviewed 1467-71. “nothing have review would been conviction addressing appeal more than a second all Rodriguez hold has waived that We recently con- issues on some contrived same (1) do rise to the alleged errors: that not (2) theory;” defendant’s “claim stitutional (2) error; or which level of constitutional unconstitutionality was not well-founded.” of appeal.23 Rodriguez not reassert on this does prosecution on the Id. focuses at 383. availability appeal of the issues on fails Rodriguez in claims numerous postconviction to whether review consider pursue he not on structional errors which did appeal” or would be “more than a second rule, in appeal. general “As a errors direct are Rodriguez’ constitutional claims whether jury do constitute fundamen instructions not well-founded. postconviction tal to merit error” sufficient Likewise, Rodriguez inapposite cites au- Shearer, Colo. People review. 181 thority. People Coyle, P.2d See 654 (1973). part 1253 But see (Colo.1982) (stating that “the convicted opinion (addressing this constitutional IX of only not of all criminal defendant assured relating penalty phase to instruc issues appeal which the of the avenues of direct tions). appeal, Rodriguez could On direct provides right, as of but also of a State following have raised the instructional claims post-conviction review means of collateral In do not raise constitutional error. which pursue notwithstanding his failure to a direct stead, attempted to Rodriguez has evade holding appeal,” that a criminal defen- but by process bringing these claims appellate custody charged of a child dant with violation through use of 35: Issue 107 Crim.P. collaterally the un- judgment cannot attack (alleging in that the had to find error order). adjudication derlying or Rodriguez guilty first-degree murder not of charge attempts considering of second-de Rodriguez to before

In Issue murder); gree (alleging Issue defects which he salvage postconviction claims appeal aggravated motor vehicle theft instruc sрecifically on this has not reasserted tions); (alleging error in that the by claim Issue placing them under the umbrella guilt-phase jury not right postcon- trial court instructed the forfeit his that he “did not penalties); possible by raising resulting claims consider the review not the same viction (ii) having trial raised the contention also claims that he was denied court, pursue appeal, failed to the matter his coun- assistance of counsel because effective deny ground may an potential relief on the pursue appeal all sel on direct did not process process. should be argument abuse Abuse We meritless. See find claims. pleaded XVIII(H). an affirmative defense be part infra by proved the state. 22-6.2(b) 22. Standard states: determining presented by which issues 23.In constitutional, subsequent ap- we do not consider applicant in a are an raises Where were insuffi- legal those issues which we conclude contention which plication a factual ciently postconviction motion. See diligence in in his applicant due raised did use or, (i) supra part application, III. raising in an earlier 35(c) (alleging and Issue 147 error in court’s refus- and reassert those issues which we hold orally give anti-sympathy insufficiently al to instruc- pre he either waived or tion). such, Rodriguez court, has As waived those sented trial such to the reassertion will issues of error. 120-122 subject instructional Issues be affirmative defense abuse allege Hubbard, and 125-128 instructional error process. at 249- Colo. murder, felony convictions 949-50; § ABA 22- P.2d Standard conspiracy second-degree kidnap- 6.2(b) commit McCleskey, at 22-67. See also ping, conspiracy aggravated to commit 489-496, U.S. at S.Ct. 1467-71. Those motor vehicle theft. These are ren- issues claims which we hold be of constitutional dered moot the trial court’s vacation of dimension, below, we address on their merits those convictions and our affirmance although the district court deemed them part vacation as XIV of discussed this waived and did not address substant them opinion. ively.26 57, 65, 80, portions In Issues recognize We party seek Issue claims trial ing postconviction pursuant relief Crim.P. limiting in court voir erred dire. Defense prompt 35 is to a evidentiary hearing entitled right not a counsel does have constitutional motion, files, unless the and the record “ dire, long to voir so court’s “examina ‘clearly allegations pre establish that the tion allowed counsel to determine whether in sented the defendant’s motion without are any potential jurors possessed beliefs postconviction merit and do warrant re ” prevent bias would them such as to [the 497, 499, People Trujillo, lief.’ v. 190 Colo. receiving from a fair defendant] trial.” Peo (1976) 1312, 1313 People 549 P.2d (quoting v. O’Neill, 164, (Colo.1990). ple v. 803 P.2d 169 Hutton, 391, 388, 392, Colo. 183 517 P.2d 394 Likewise, defense counsel does not have a (1973)); Court, White see v. Denver Dist. 766 statutory right constitutional or to unlimited 632, (Colo.1988). However, P.2d we 634 also voir Id. following dire. We hold that the recognize hearing required that a is not un issues not raise error do constitutional der Crim.P. 35 where the motion require postconviction do not review: Issue present only law, People record issues of v. (alleging 57 error in the trial court’s refusal Velarde, 374, 104, Colo. 616 200 P.2d 105 dire, to videotape although voir the court (1980); 107, 109, People Triggs, v. 200 Colo. stenographic transcription); allowed Issue 65 317, (Colo.1980); 613 P.2d 318 ABA Stan (alleging preclusion of counsel from voir dire dards for Criminal Justice: Postconvietion (al hardships publicity);24 on Issue 80 22^.6, § Remedies or where the motion fails leging on undue limitations defense counsel’s that, true, support to assert if a facts would (E) dire);25 99(A), (D), voir and Issue White, 635; claim. constitutional 766 P.2d (alleging prejudicial limitations on defense Muniz, (Colo.1983); People v. 667 P.2d 1377 dire). counsel’s voir 499, Trujillo, 549 190 Colo. at P.2d 1314. Furthermore, Rodriguez attempt Should defendant is not entitled to a bring hearing a successive motion ground upon under Crim.P. when the relied for portion alleges inadequacy "deliberately prior appeal.” 24. A of Issue 65 he screened out from above, topics. the trial court’s voir dire on these How- v. 1 at As stated we conclude ever, facts, unsupported portion Rodriguez this with rec- waived has not those constitu cites, Therefore, appeal. ord or case law. affirm we tional issues which he reasserts on this However, portion. summary People agree dismissal of that See we with the district court’s con 741, (Colo.1989); Diefenderfer, Rodriguez' 784 P.2d 752 clusion that motion did not warrant 226, 228, People, Hooker v. 173 Colo. P.2d reversal and vacation of his death sentence. We 376, (1970). will affirm district court even when reaches it judgment wrong reason.” "correct Franc, 69, 76, 48, portion alleges Rodriguez' 25. A Issue 80 ina- State v. 165 Colo. 437 P.2d denied, bility on to make record the effects of the cert. 88 S.Ct. (1968); argument Zigan limitations on voir This is ad- L.Ed.2d also Sand dire. see & VI(B) Poudre, part opinion. dressed in of this Gravel v. (Colo.1988). La 758 P.2d Cache Thus, substantively we will review disagree, part, postconviction 26. We in with the district court’s constitutional issues which holding realleges waived all claims which here. degree aggravated motor vehicle theft. fully and final has postconviction relief been arguments are rendered moot judicial proceeding. These latter prior ly resolved Muniz, 635; opinion, White, by part XIV of this our decision P.2d at 667 P.2d the vacation those offenses. upholding on this reviewing After both the issues 140, Rodriguez argues In Issue Rodriguez’ appeal and the entire record inadequate to the information was case, presented conclude that the issues we first-degree aggravated motor vehicle charge (1) may which we decide issues theft, conspir are either: second-degree kidnapping, and the benefit of hear- the record without first-degree acy commit murder because Velarde, level, ing at the district court see allege did not the elements of those counts (2) 105; presented by P.2d at issues predicate offenses. their various newly discovered evi- claims of People, 163 Colo. 506- cites Martinez ineffective assistance of counsel (1967), dence and support of 766-67 hear- upon which the district court conducted holding proposition. The of Martinez issue, we regard to either class of ings. With Rodriguez’ argument. support cannot record is sufficient allow conclude that the Martinez, an held that one count of infor we these issues here. us address incorporate by reference another mation can that count or the offense specifying count issues in the inter We address these is, charged by name. Id. That each therein justice finality recogni and of ests not enumerate of an information need count that, postconviction upon review of a tion offense, a predicate elements of but must motion, appellate should exercise “[a]n clearly incorporate by specifically and refer scope pertinent broad of review so all count which does enumerate ence another on merits legal issues are considered their predicate elements of the of the essential possible, the end of final insofar as toward challenged Each count the fense. Id. concerning the case of entire determination predi to specifically refers the information applicant.” for Criminal the ABA Standards name; by or the ele cate offense offenses 22-5.3(b) § Remedies Justice: Postconviction predicate set forth ments of each offense are (2d 1986). 22-60 ed. information; of the and the in other counts adequately advised of information V charges against which he must defend. R., v. 1 at 3-4. See Adequacy the Information of contends, elabora- also without argues In Issue tion, robbery charge aggravated for that the charged inadequately seven of information allege adequately a crime under that “fails he was convicted. the offenses which adequate provide fails statute and further 108, Rodriguez alleges unconstitutional Issue Rodriguez’ Opening Brief notice.” charged the sexual assault variance between charging ag- information Our review of the and the sexual assault in the information gravated robbery informa- reveals that instructed. We upon which the was statutory appropriate tracked the lan- tion arguments. perceive no merit to -302, guage, §§ 18-4-301 to 8 C.R.S. see 140, Rodriguez contends that the In Issue (1978), reveals no error. insufficiently charged the follow- information 108, Rodriguez that In- In Issue contends first-degree aggravated ing motor offenses: unconstitutionally expanded No. 25 struction theft, ag- second-degree kidnapping, vehicle charged in the infor- upon the sexual assault conspiracy commit robbery, and gravated disagree. mation. We first-degree Rodriguez makes simi- murder. Colorado, may a defendant be felony arguments regarding first-degree lar information, murder, by complaint, or indict second-degree charged conspiracy to commit (1978).27 16-5-101(1), § “An 8 C.R.S. conspiracy to first- ment. kidnapping, and commit guarantee This has certain federal crimes. States for not, however, The Fifth United Amendment selectively incorporated guarantees grand jury been indictment Constitution nally charged” information is sufficient if it the de- in the charging advises instrument. charges facing Mosley, fendant of the he United is so he States 965 F.2d (10th Cir.1992). adequately pro- can defend himself and be prosecution tected from further for the same on ... any When the trial of information People, offense.” Cervantes v. any ... appears for offense there be (Colo.1986) (citation quota- and internal any variance between the statements omitted). prosecution tion marks cannot the ... information and evidence of- .the constitutionally require a defendant to an- proof fered in thereof ... the name or charge swer a charging not contained description thing matter or whatso- States, instrument. See Schmuck United described, ever therein named or such var- 705, 717, 1443, 1451, 109 S.Ct. grounds acquittal iance is (1989). L.Ed.2d defendant, unless the court before which such trial be had finds such variance is recognizes types Case law two may material to the merits of the case or charge variances between contained in prejudicial be ... defendant. No charging charge instrument and the ... information shall be deemed insuffi- (1) simple which a defendant convicted: cient, trial, judgment, nor shall the oth- variance, which charging “occurs when the proceedings er thereon be or af- reversed unchanged, terms are but evidence at by any fected which defect does not tend materially proves trial facts different from prejudice rights the substantial alleged” charging instrument, those in the defendant the merits. Williamson, United States v. 53 F.3d (1978). 16-10-202, § 8 C.R.S. (10th Cir.) (citation quota and internal Rodriguez contends that Instruction — cert, omitted), denied, tion marks U.S. unconstitutionally expanded No. upon -, (1995); 116 S.Ct. 133 L.Ed.2d 149 charged sexual in the assault information (2) amendment, constructive which because, trial, the instructional definition an changes charged essential element of the penetration” cunnilingus, of “sexual included thereby offense and alters the substance intercourse, anilingus, and anal aswell charging instrument. id. re- With fellatio, acts of intercourse which sexual “[cjonvictions variance, spect simple gen- ato specifically charged in were the information. erally long have as as been sustained R., 2; R., 1 See v. 3 at v. proof upon they which corre- were based sponds 16, clearly an set that was out Instruction No. the trial court in- offense Miller, first-degree jury the indictment.” States United v. structed the sexual as- 136, 130, 1811, 1815, pen- 471 105 required U.S. S.Ct. 85 sault the infliction “sexual (1985) added). Martelli,” R., 577, (emphasis 99 L.Ed.2d The etration on Lorraine v. 3 at and, 25, only prohibits constitution amendments that in Instruction No. the court recited “effectively subject statutory a defendant to the risk of verbatim the definition of “Sexual origi- for an conviction offense was not Penetration:” law, provided by person Due Process Clause of Fourteenth Until otherwise no shall, Amendment to the United States proceeded against Constitution felony, be crimi- for thus, and, inapplicable is to the states. See Beck indictment, nally by except otherwise than 545, 955, 541, Washington, v. 369 U.S. 82 S.Ct. forces, arising land or in cases in the or naval 957-58, (1962). However, 8 98 federal L.Ed.2d the militia when in actual service in time of precedent helpful analysis is to our of Claim 108 cases, public danger. war or In all other of- because, by prosecuted whether the federal or prosecuted criminally by shall be indict- fenses government, a be state defendant cannot re- ment information. or quired to with he answer for crime which is However, only provision this serves to "direct States, charged. not See Schmuck v. United 489 by proceedings be that criminal must initiated 705, 1451, 717, 1443, S.Ct. L.Ed.2d U.S. 109 103 legislature indictment and to authorize the (1989). 734 provide proceeding.” alternative methods of guarantee The Colorado Constitution does not 32, 39, 572, Falgout v. People, Colo. 459 170 P.2d felony charge. grand indictment for a See (1969). legislature 576 The enacted section 16- Robb, 533, 536, v. 195 Colo. P.2d

Losavio 579 II, provide (1978). initi 5-101 to for alternative methods of Article Section 8 of the 1154 ating proceeding. provide Colorado Constitution does that: a criminal 258 required charges which would be means sexual inter- Penetration” “Sexual Cervantes, 787; R.,

course, fellatio, 715 P.2d at see anilingus, to meet. cunnilingus, not 1 at 1. Emission need be v. anal intercourse. pen- proved an sexual element from those in Sti facts also differ These Any slight, penetration, however etration. States, 361 80 S.Ct. v. U.S. rone United complete the crime. is sufficient (1960). case, 270, 4 In that L.Ed.2d 18-3-401(6), R., § Compare Stirone, v. 3 at 588 with defendant, grand indicted was (1978).

C.R.S. with interstate unlawful interference for Spe at 271. commerce. Id. S.Ct. that Instruction No. did We hold alleged that cifically, the indictment Stirone impermissibly charges in the not amend the goods unlawfully importation obstructed Torres, P.2d People v. information. Pennsylvania. trial Id. The into the state of (affirming (Colo.App.1984) conviction and instructed the permitted evidence although first-degree assault defi sexual importation exportation jury on both included one method of nitional instruction at 271-72. The goods. Id. at 80 S.Ct. committing the defendant crime with which Supreme Court held that constructive charged). informa not Count III of the was the indictment was unconstitu amendment of alleged tion essential elements first- the amendment struck at the tional because specifici sufficient degree sexual assault with jurisdiction. The the federal courts’ heart of ty specific to “inform the accused of the Court stated: offence, coming general descrip under charge interstate commerce is tion, charged.” he is See Russell with which critical since the Federal Gov- affected is 749, 765, States, 82 S.Ct. United jurisdiction of this crime rests ernment’s (citation (1962) 1038, 1048, L.Ed.2d 240 only It follows that on that interference. omitted); R., v. 1 at quotation marks internal only particular kind when one of commerce specifically alleged 2. The information also charged a convic- to have been burdened assault, perpetrator, the date of charge must rest on that tion victim, location, accomplices. and the another, though be assumed that even it particular specification v. 1 at 2. The general an indictment drawn under Rodriguez committed the manner in which might upon rest a show- terms a conviction pen sexual intrusion or sexual element of ing of one kind or another that commerce evidentiary represents further de etration had been burdened. the information need not state. which tails Martinez-Nava, See United States at 274. The amendment Id. 80 S.Ct. (10th Cir.1988). F.2d 414-15 wholly different acts at in Stirone concerned places against different different times and differs from that The case before us required By to was defend. which Stirone (Colo.1981). Tucker, P.2d 162 People v. contrast, any in this case between variance Tucker, we held that an indictment for forth in the information and the facts set the in- where embezzlement was insufficient jury court instructed the those on which the statutory language, the but dictment tracked assault, of the concerned the same incident allege specifically the embezzle- failed to how victim, defendant, accomplices. and same There, 164. accomplished. Id. at ment was distinguishable crimes, Rodriguez’ case is also other there “[u]nlike we stated that Mexico, v. New 916 F.2d 595 ways from Hunter in which embezzlement are numerous (10th denied, 909, Cir.1990), cert. embezzle- may committed.” Id. Unlike be (1991), 1693, in 114 L.Ed.2d 87 ment, in 111 S.Ct. can committed sexual assault be indict Circuit held that the each enumer- which the Tenth ways, limited number of only a constructively had of re- ment at issue been in and each which ated the statute Hunter’s conviction for amended and reversed quires preparation defense. similar (CSP). Id. at penetration Moreover, information re- for criminal sexual III of the Count charged indictment statutory I of the Rodriguez to 599. Count the correct ferred 1, January between Hunter committed CSP of sexual assault citation for the offense 23, 1977, “un in that he and October of the “provide[d] clarification” which lawfully intentionally engaged guez surprised by sexual was neither the evidence step-daughter. intercourse” with his hampered Id. nor trial his defense. Rodri- jury, 597. The trial court instructed guez first-degree of was convicted sexual as- however, that act relevant sexual was charged sault as in the information. We digital pen either sexual intercourse or deny challenge to that conviction. jury etration. Id. The of convicted Hunter CSP, id. but the Tenth Circuit re VI conviction, holding jury

versed the that the constructively instruction amended the in Jury Selection by adding dictment of another mode sexual Rodriguez relating raises numerous issues penetration. at 599. Id. jury process, generally selection which holding premised The court’s on legis- was (A) following categories: fall within the history: prior lative digital to June selection; regarding jury of state the reсord penetration supported only of conviction (B) inability Rodriguez’ alleged make con- assault, fourth-degree sexual whereas sexual temporaneous objections preserve issues supported rape intercourse a conviction for (C) appeal; cautionary the trial court’s a child. Id. at A 597. defendant convicted (D) jurors; to prospective instructions hard- fourth-degree sexual assault could be sen- excusáis; (E) (F) cause; ship excusáis for years’ imprisonment, tenced to five whereas jurors standard the trial court used to excuse rape defendant convicted of either penalty opinions; for cause death due their first-degree impris- child or CSP could be (G) qualification jury. the death of the jury oned for life. Id. at 597-98. Under given, possible instructions it was jury only convicted Hunter of based CSP matter, statutory As preliminary

conduct which occurred re- before change peatedly complains jury ques- initial and which was not actionable as a that the first-degree felony statutory part tionnaires are not before the the record29 and change. contrast, By implies Id. at that the trial court an added has affirmative questionnaires.30 penetration duty preserve modes of sexual those this ease do sentence, statute, argument change applicable not makes this an ad- junct arguments or level of offense. selection he rais- 67-71, 53, 58, 65, es in Issues “Technical an defects information has demonstrated that require do not reversal unless the substantial the record before us is insufficient for the rights prejudiced. of the defendant are The resolution of these issues or that the absence defendant is entitled to reversal if he was questionnaires from record has prejudiced, surprised, hampered in his prejudiced any way. him in Albo, 102, 106, People defense.” Colo. (1978). 53, Rodriguez challenges record before In Issue the .tim- jurors prejudice Rodriguez’ ing potential no us indicates “sub the oath taken rights,”28 Rodriguez point completion stantial nor does in relation to their Likewise, any. § questionnaires course, may points up ‘‘[w]hat 28.Of be technical for one is ticular adds in time to discernible 761-62, another; for and direction.” Id. at 66 S.Ct. at 1246. substantial what minor unim setting portant one in in crucial another.” Kot 750, States, 761, United U.S. completed questionnaires teakos v. 328 66 29. Thirteen of the are 1239, 1246, (distin (1946) S.Ct. 90 L.Ed. 1557 part of record v. at the before us. 355- guishing between technical and for substantial 393. purposes of the federal "harmless error statute” review). governs appellate 1989, which federal Wheth require In the statute was amended to rights “[e]ssentially er are "substantial” is ... for completed questionnaires the court to retain the For, 13-71-115, experience to all § work out. as with lines prospective jurors. all for 6A However, (1995 positive nega Supp.). be which must drawn between C.R.S. statute in law, may precise Rodriguez' tive fields of indistinct, border be time trial did not effect require questionnaires. par but case case determination of retention of the made, ... hearing or trial or a very questionnaires appar- ings a was few of the were unavailable, may appellant destroyed.” Rodriguez’ Opening transcript Brief is ently pro- of the evidence or portion prepare In a statement at 170-71 n. 44. the relevant means, in- 58, ceedings alleges procedural de- from best available Rodriguez Issue 10(c). cluding Rod- jury his recollection.” C.A.R. day of selection. fects on the first 76, nor riguez prepared trial has not such statement Rodriguez contends that the Issue juror provided specific assertions of failing this court with in to excuse G.P. court erred questionnaire that the record would fact or error. We conclude and that G.P.’s cause permit to our resolu- independently support! Mr. Rod- before us is sufficient “fully ] jury which are riguez’ Rodriguez’ Opening Brief at tion of the selection issues claim.” However, Rodriguez properly ade- us. 212 n. 6S. did not before 53, 58, 76 in quately or his raise Issues 35(c) motion before the district

Crim.P. B court, presented arguments in those and the has a fun criminal defendant Moreover, properly us. issues are not before right impartial an damental to trial before part questionnaire of the record G.P.’s Collins, People jury. v. us, 385-86, R., v. and reveals before see (Colo.1986). dire examination is intend Voir no claim of error. basis for to whether ed “to enable counsel determine alleges Rodriguez In Issue jurors any prospective possessed are of be adequate inquiry “to make trial court failed in would cause them to be biased liefs which jurors ques- into the statements in prevent as the [defendant] such manner tionnaires, be- and the manifest differences impartial trial.” obtaining from fair and given and those in tween those statements not, right impartial jury Id. to an does “The Opening person.” Rodriguez’ Brief at 203. however, require granted be that counsel opinion, we affirmed the part IV of this voir dire examination. Nor is unlimited summary portion of this of Issue 65 dismissal as a counsel entitled voir dire the facts, inadequately supported record with People law.”31 matter of constitutional cites, Accordingly, we decline to case law. O’Neill, (Colo.1990). P.2d address the issue here. in right The to voir dire is set forth Rule VI(E) part opinion, of this As discussed in Criminal Proce- of the Colorado Rules of regardless in information contained provides right dure. Crim.P. counsel the jury questionnaires, Rodriguez cannot jurors, question the trial but also endows prejudice arising from the er- demonstrate authority reasonably limit court with the 67-71, 73, alleged in rors Issues scope questioning. of that and extent peremptory his did not exhaust because he argues Rodriguez In Issue challenges. ordering the trial court erred only that In Issue contends writing any submit to the court missing questionnaires allow this would juror’s R., v. 3 at record of a demeanor. See ju- number court to the exact determine imper- 421. The trial court’s order did day hardships on the first rors who claimed missibly ability impede Rodriguez’ to make a information is neither selection. This objection might had to record on he have of Issue crucial nor relevant to our discussion juror’s responsibility demeanor. is, impartial assuring jurors are fair and instance, trial respon first vested himself bears the appeal judge: It is the trial court which hears the sibility designate the record juror put the answers appellate questions to the transmission to the ensure its Velarde, juror’s while given, observes the demeanor 200 Colo. People court. See (1980). Where, being truth 375-76, questioned, and discerns the 616 P.2d fulness, sincerity, to here, proceed- and dedication report “no or of the evidence relating to on defense coun- supra part opinion, in we claims limitations 31. IV of this which See disposal questioning. upheld summary dire sel's voir the district court's high responsibility being record, objections, involved on the filed pre- written impartial juror. alleged fair and served the appeal, errors for then appeal failed to on grounds. per- those We Abbott, (Colo. People v. portions ceive no merit to these of Issues 1984) (citation quotation and internal marks and 99. omitted). discretion, Absent an abuse of we C appeal will not disturb on trial court’s 54, Rodriguez Issue argues that deny challenge decision to for cause. Id. the trial failing court erred in to instruct adequate had an opportunity to jurors prospective some not to discuss the any juror’s make a record on demeanor any or to publicity concerning case avoid sufficiently which egregious would be to sat Specifically, that, Rodriguez alleges case. on isfy this The trial burden. court did not err selection, day jury the first the court did by requiring Rodriguez any to submit record appropriately jurors not caution the who al juror’s prospective of a in writing. demeanor leged hardship prior to their dismissal.33 portions 58, 80, of Issues and However, jurors complete those did their 99, Rodriguez contends that he “cannot be juror questionnaires prior to their dismissal any possible faulted for lack on record day. ques- that first The cover sheet of the the actual effects of the court’s time and jurors tionnaires instructed the to “not dis- subject restrictions, matter since he or was any with prospective cuss case other record, attempt dered not to to make such juror anyone or else” to and “not to listen and unambiguously since the trial court dem any read news accounts of this case.” Am. any prejudgment objec onstrated its such R., 31 at v. 26.34 Rodriguez’ Opening tions.” Brief 216. at However, jurors our review the record claiming hardships reveals were or- R., the court stated that following counsel could make to Monday. dered return contemporaneous objections32 that, dire, and 11. hardship sub at After voir the court sequently, Rodriguez’ objected jurors counsel qualify to the distributed those who did not orally voir dire both hardship among limitations and in jury groups writ for exeusal ing. R., 2-7,15-19, 22-30; R., 14 at already 72-73, 109-110, assigned. v. 3 See id. 489-92, 497-505. The trial court did not group 150-51. Each was asked then impermissibly impede Rodriguez’ ability any exposed whether member been had preserve make a record or publicity regarding Any the issues for prospec- the case. Rather, appeal. objected juror publicity exposure counsel tive who indicated course, hardship you may objections, you 32.Prior commencement of voir make but if dire, engaged lengthy explain objec- and defense counsel the trial court reasons to those have tions, following colloquy: type writing. in the then that’s the I want in R., v. 14 at 29. My understanding EISNER: .... from order, order, court's amended and comments jurors alleged 33. The court dismissed those who to counsel ... indicates counsel are hardship prior remaining to its of the dismissal contemporaneous objection; objections make R., jurors. subsequently v. 14 at 11. The court writing. are to be made in remaining jurors instructed not to discuss the contemporane- THE COURT: You can make publicity concerning case to avoid the case. objections. going lengthy ous If it's to be I Id. supplemented by objec- want it would written tion. suggest "does not concede or give opportunity The court will us EISNER: prospective jurors any page received for cover objections and to make the court will rule questionnaire.” Rodriguez' Opening Brief at However, that time? questionnaires n. the blank THE COURT: Yes. But what I want do pages, contained in the record have cover dire, during the time scheduled for page voir counsel discussed contents cover that; doing our selection to have time on the record. v. 14 at 9-10. Even if the words, spent other we questionnaires pages minutes so far this did not have cover when morning, complaining given jury, subsequent and I am not about that. to the the trial voir court’s saying, coverage repeated am What I time we have set aside its caution- dire media jurors, jurors, ary for the I want to use for instructions would have cured error. 262 357, 664, R., 579 58 L.Ed.2d v. 14 U.S. 99 S.Ct. questioned in See at 439

was chambers. (1979) women); Pe 8-49, 140-182; R., exclusion of 154-196; R., (systematic 17 at v. v. 15 493, 2163, 33 2-54; R., Kiff, 92 S.Ct. 190-218; R., v. at 5- ters v. v. 18 at 19 at (1972) (systematic 6-97; R., 5-75; R., exclusion 62; R., L.Ed.2d 83 21 v. v. 20 at v. at context, jurors). a claim pretrial black voir dire on 22 at 194-262. After Rodriguez requires systematic exclusion coverage penalty qualifica- and death media by the purposeful state. tion, show discrimination panel with caution- each was dismissed (Colo. 45, People, 53 v. 900 P.2d following: See Cerrone ary to the instructions similar 1995) jury). grand (involving composition of you not to discuss Please let me instruct attempted to make Rodriguez has not even any among yourselves or with this case showing, we to address such decline jurors; to potential not discuss the other issue. else; any anyone do not read case with newspa- news accounts the case Likewise, Rodriguez in Issue else; any anyplace not listen to per or do Jury alleged of the Uniform has violations or radio. news accounts the T.V. - Act, §§ 13-71-101 Selection Service 138; R., R., 293; R., 14 v. at v. 16 v. at sеe 15 (1973 Supp.). Conduct 6 C.R.S. & 1986 R., R., 311; 142; 83-84; at 17 at v. 18 at v. Jury requirements which violates the R., 179; R., 153; 22 20 at v. v. v. may the Constitu Act also violate Selection 192,334. if, sys example, tion a defendant shows for trial court is best ad Although ju particular class of tematic exclusion cautionary instructions to Cerrone, vised issue oral n. P.2d 9 and rors. See jury panel prior text, to their dismissal alleges the entire accompanying selection, day jury we conclude which, on the first true, Jury if violate the conduct would adequately instructed the Act, trial court which does not rise to the Selection but prospective jurors the case and discuss example, For level of constitutional error. publicity. exposure to related avoid jury alleges that commissioner coverage subsequent dire on media voir they j.urors merely stated that excused who tainting any would have uncovered students, sixty medical were were over with jurors jury pool by the failure to caution hardships problems, who vacation or asserted hardships, the failure to alleged who jury requiring showing service without by the adequately cured court’s instruct was hardship, incon “undue extreme would cause repeated cautionary instruc subsequent and venience, public necessity” as set forth 13-71-112(2). has failed demonstrate tions. People rel. ex section right impartial Court, to an any prejudice to his Faulk District and, deny Issue 54. jury, accordingly, (Colo.1983) we that, (stating under the in dicta

statute, quali court should not excuse a juror “for reason short of statu D fied 13-71- tory criteria ... set out section 81, Rodriguez asserts In Issues 112(2)”). However, allegations Rodri trial jury and the commissioner makes, although appropriate for review guez “destroyed the randomness of the court appeal, do not rise to the level of on direct pro- process” by dismissing some selection thus, and, do not merit constitutional error hardship spective jurors without who claimed review here. validity hardship. ‍​‌​​‌‌‌​​‌​‌​​​‌​​​​​​​​​​‌‌​‌​‌​​‌‌‌‌​‌​‌​‌‌‌‌‌‍of their voir dire as Opening Brief at E 81, Rodriguez support of Issue 67-75, 83- Supreme In Issues United States Court cites three 84, Rodriguez alleges trial court error relat cases, systematic to the each of which relates prospec ing to the excusal or non-excusal from service. groups certain exclusion of Ohio, jurors for cause. The Colorado statutes tive S.Ct. See Powers U.S. (1991) (systematic provide excusal for cause where the ex 113 L.Ed.2d Missouri, jurors); finds: of black Duren v. clusion

263 a Rhodus, The existence of state in the People of mind abuse of discretion. v. 870 juror evincing enmity 470, (Colo.1994); or bias the Davis, toward P.2d 477 see 794 state; however, or per- Drake, defendant the no 204; at P.2d 748 P.2d at 1243. Rodri juror son a disquali- summoned as shall be guez has procedure not shown that either the by previously fied reason of or formed or the trial court’s decisions were an abuse of expressed opinion with reference to discretion, nor does our review of the record guilt accused, or innocence of the if the reveal abuse. satisfied, from examination 70, 55, 72, 74, 75, In Issues evidence, juror or from other he Rodriguez alleges error in the trial court’s impartial will according render an verdict jurors to prospective refusal for excuse cause to law and the evidence to submitted exposed had pretrial who been publicity at trial[.] and, result, as a either knew of Chris Rodri (1986). § 16-10-103(l)(j), juror 8A C.R.S. A guez’ conviction and sentence for the same is appropriately excluded for cause if that charged or opinion offenses had formed an juror would be “to unable set aside bias However, Rodriguez’ guilt. Rodriguez did preconceived or impar notion and render an peremptory challenges, not exhaust his see tial verdict based on the evidence at adduced 67, and, therefore, v. 24 at has shown no given by trial the instructions the court.” O’Neill, prejudice. 173; 803 See P.2d Drake, (Colo. 1237, People 748 v. P.2d 1244 Silvola, 363, 368, People v. 190 Colo. 547 P.2d 1988). juror’s prospective indication of denied, 1283, 1287-88, 886, cert. 429 U.S. 97 presence precon concern of some 238, (1976). According S.Ct. 50 L.Ed.2d 167 ceived belief as to some facet of the ease does ly, we find merit arguments.35 no to these not person mandate exclusion of that for Likewise, cause. Id. at 1243. the fact selection, During jury Rodriguez chal juror questions answers voir dire such J.A., R.M., jurors D.L., lenged and K.G. for way might prejudice indicate not does penalty cause based on their death views. Abbott, require excusal for cause. 690 P.2d challenges. The district court these denied Rather, at 1267. the trial court must consid 69, 71, 73, Rodriguez Issues ar facts, er including challenged all available gues however, Again, error in those denials. juror’s impartiality. assurance of Id. Rodriguez peremptory failed exhaust his challenges preju and has not demonstrated dire, At the time voir the bur O’Neill, Silvola, 173; dice. See 803 P.2d upon “demonstrate, den was 190 Colo. at 547 P.2d 1287-88. We through questioning, potential juror that the Witt, arguments hold these meritless. impartiality.” Wainwright v. lack[ed] 412, 423, 844, 852, 105 S.Ct. 68, Rodriguez alleges In Issue error (1985). L.Ed.2d We are deferential to pro- trial court’s refusal to for excuse cause the trial court in “the such matters because spective juror J.B. based his “clear bias.” only judicial judge trial is the officer able to Rodriguez’ Opening Brief at 207. For fully assess the attitudes and state of mind above, Rodriguez the reasons discussed has juror personal potential by observation prejudice no shown and we hold that Issue 68 significance linguistically may what not postconviction does merit relief. appear to be inconsistent or self-contradicto ry responses questions.” People to difficult F Sandoval, (Colo.1987); 733 P.2d (Colo.1990), 62, 83, Davis, In Issues chal- People see denied, lenges standard used trial court to rt. U.S. S.Ct. ce (1991). pro- 112 L.Ed.2d We will set determine the inclusion or exclusion jurors penal- only spective upon aside trial court’s if their death decisions based affirmatively ty opinions. Specifically, record demonstrates a clear contends 72, Rodriguez challenges, portion peremptory In Issue also to a exhaust his left R.K. on cites alternate, transcript of the voir dire of R.K. which R.K. as an and has demonstrated challenge opinion penalty. prejudice his on the death no from the of his discusses denial analysis change. Rodriguez does failed cause. “ jurors and decide the wrong legal be able ‘consider applied the that the trial court apply conscientiously impartially the favored facts for exclusion which standard ” charged the court.’ 469 U.S. the law as penalty, death see Rodri- prosecution and the 228, 420, 221, (quoting at 850 Adams v. the at 105 S.Ct. Brief at and that guez’ Opening Texas, 38, 45, 2521, 2526, inconsistently 100 448 U.S. S.Ct. applied this standard (1980)). Thus, Rodriguez 65 581 id. at 188. L.Ed.2d Rodriguez’ detriment. See rule on a chal- argues that the court must 88, argues the that In Issue bearing lenge while in mind law for cause Witt, Wainwright 469 in set forth standard applicable the case. concludes 844, 841 83 L.Ed.2d 105 S.Ct. U.S. require that, not Colorado law does because (1985), apply “[b]ecause to this case not does imposed any in penalty that be death the time Mr. in Colorado at the standard case, juror a not be excused particular should than Rodriguez’ trial was more lenient juror although for that could never cause Opening Brief at Rodriguez’ standard.” Witt Rodriguez’ impose penalty. the death trial Rodriguez contends that the 221-222.36 However, Opening Brief at 230. under Colo- applied have the “standard” court should trial, a law the time of rado at Illinois, 510, 88 391 Witherspoon v. U.S. deter- capital sentencing was asked to (1968). In 776 With- 20 L.Ed.2d S.Ct. pen- appropriate whether death was mine ju- erspoon, Supreme Court noted that Thus, alty. “it to re- does not make sense they for if make may be excluded cause rors juror ‘automatically’ quire simply a not that it against penalty; the death whether or vote (1) they unmistakably that would au- clear might vote death under not a venireman for against imposition tomatically vote standards, personal the State still certain regard capital punishment without if may challenge he properly that venireman might developed at that be evidence statutory follow the scheme.” refuses to (2) them, that or trial of the case before Witt, at at 851. Rod- 469 105 S.Ct. U.S. penalty the death their attitude toward legal presumption riguez is “entitled to a making im- prevent them from an would jurors to be seated or standard allows guilt. to the defendant’s partial decision as likely quite will be his favor.” who biased 21. 1777 n. at n. at Id. 522-23 S.Ct. at trial court Id. 852. The at S.Ct. pure is dicta. Witherspoon statement appropriately applied the Witt in this case Witt, 422, 105 at at 851. S.Ct. that, juror if a is standard and concluded Witt, Further, in its 1985 decision where, unwilling to consider death sentence Witherspoon clarified its Supreme Court law, appropriate such a under sentence Witt, juror opinion. In the Court held that a juror required, cannot although not may because of his excused for cause be “conscientiously appro- apply the law” and is penalty when those views views on death Witt, 469 priately excused for cause. See impair the “prevent substantially would (citation 420, 105 at 850 U.S. at S.Ct. juror in accor his duties as performance of omitted); O’Neill, quotation internal marks his oath.” with his instructions and dance Davis, 171; P.2d at 207. P.2d at (footnote at 105 S.Ct. U.S. 62, Rodriguez argues In Issue omitted); see quotation marks and internal applied the incon- trial court Witt standard Davis, that, jurors sistently accordingly, some Jury Rodriguez’ trial selection for views on the were dismissed because of their trial court began of 1986. The in November although they actually penalty were death concluded that the Witt stan appropriately jurors qualified sit and some were re- governed selec for exclusion dard who should have been excused tained tion in this trial. claim, Rodriguez support of this cause. transcript poten- of six argues voir dire cites to the In Issue jurors, on Rodri- that, requires tial none of whom served applies, if Witt Witt Davis, rejected argument P.2d 36. We similar E.B., D.G., R.M., Ru.M., W.V., it,

guez’ jury: you W.V.: I wouldn’t like If kill no. you life, somebody, your and B.R. deserve to lose especially thing, you’re if it’s a deliberate talking Degree First Murder. ]_ jurors D.G., R.M., Rodriguez argues that mind, your if EISNER: there’s Ru.M., improperly and B.R.37were retained First Degree de- Murder conviction after although their in favor “biases death liberation, person then the should die? penalty impaired.” Rodriguez’ left them Opening Although Rodriguez Brief at 188. Yes, W.V.: sir. asserts that the trial court’s decisions Id. at granted The 59-60. court defense jury panel “skewed the for state and the cause, challenge stating counsel’s “I for that id. at against Rodriguez,” Mr. the record very position think that she was clear in her Further, not does bear this out. anything that she did not wish consider prejudiced by has not how “shown he was the Id. at 82. After penalty.” but the death jurors they three not on as did serve dire, considering the transcript entire voir and since the defense did not exhaust its we conclude that the court’s statement did O’Neill,

peremptory challenges.”38 imply adoption stringent not its of the more 173; Silvola, at at at Colo. P.2d Witherspoon challenges for standard made 1287-88. to the Witt “sub- opposed defense impairment” ap- stantial standard the court Rather, plied prosecution. to the the court’s juror upon statement its dismissal of W.V. Rodriguez argues clearly that “[t]he court particular indicated its assessment of that applying indicated the standard it was re- juror. perceive We no error. garding jurors death-prone granted when it challenge juror to prospective [W.V.].” Rodriguez’ Opening at Brief 189. We find no application reversible in error the court’s Rodriguez argues that the court errone- the Witt standard to this juror. E.B., juror ously expressed her excused “who merely in death ex- penalty, belief but dire, During voir W.V. stated that pressed hesitancy ‘signing’ the ver- about thought she that “life worth more than Rodriguez’ Opening at dict.” Brief 189. Our R., years,” twenty at that but she review of record more than a discloses impose imprisonment required by could life if hesitancy penalty. mere about the death We Id. at the court’s The instructions. 58. fol that, cause, excusing in conclude E.B. for lowing colloquy occurred: trial court neither nor abused its discretion misapplied the Witt standard. EISNER: .... You’re in a situation you’re facing penalty where the death she E.B. stated that had mixed emo judge you given the tells that circum- sign and didn’t tions know whether she could case, that law would stances R., a death verdict. v. 18 at 77. E.B. stated basically you person assure that the would “totally she never clear” that had been on age prison of old in ... that die then would issue, “possibly” support but could the death palatable imprisonment make life a more Id. penalty. E.B. be stated that she would you? for choice willing in imposing penal follow law No. W.V.: 80-81, expressed.an unwilling id. ty, at but then, you impose EISNER: Even wouldn’t like ness to the death sentence. The colloquy following occurred: it? selection, Rodriguez court B.R. cause the close of had used later excused for R., grounds. challenges. v. 23 at only eight peremptory different 236-37. his twelve R„ v. 24 at 66-67. challenge peremptory exercised a However, at and excused v. 23 at 251. D.G. juries actually require petit you [H]ypotheticaIly, have does

LITTLE: composition of the commu- clearly outweighs reflect the aggravation that chosen found 173-77, nity large. Id. at S.Ct. mitigation; question no it there is about mind; Rodriguez contends that his case your you law instructs 1764-67. circumstances not presents distinct factual you’re weigh these and make a decision urges court do, you willing to ... would be addressed Lockhart on what to dissenting put your opinion Lockhart name down to follow the sign verdict and provide must proposition Mr. that would sentence juries, death-qualified and one not two one death? 204, 106 death-qualified. See id. at S.Ct. if I I know could. E.B.: don’t attempts reject Rodriguez’ to cir- 1781. We Id. at 82. majority’s holding in Lockhart cumvent _ you appro- LITTLE: Could and, accordingly, 49 and 50 hold Issues penalty priate sign a death verdict? case are meritless. theory, my problem I could E.B.: In but juror says if a death I think that is that fact, they’re responsible for the

penalty, in VII penalty, of the death even carrying out Relating that, Rulings Witnesses Trial Court to they though physically wouldn’t do that, I to live with and then would have my I if I That’s and don’t know could.

problem. 35(c) denying Rodriguez’ In mo- Crim.P. tion, five court characterized of the district 103; prosecu- Id. id. at 119-20. The at see on the credibili- Rodriguez’ claims attacks challenged for on her tion E.B. cause based that, ty prosecution witnesses and held of penalty. opinion Id. at 138. on the death 15, Taylor People, under 155 392 Colo. granted challenge. at 141. The court Id. (1964), allege P.2d such claims did not 294 totality of the circumstances dis- Under the magnitude. In Issue errors of constitutional record, no of we discern abuse closed 35, Rodriguez that the district court contends E.B. trial court’s excusal of discretion Taylor dispose erroneously applied of Sandoval, for cause. See 733 P.2d ques- claims which asserted constitutional questions, to counsel’s responses Given her merely and attack the credibili- tions did not fairly E.B. the court have found that could In Issues ty prosecution witnesses. “substantially ability her impaired” in was 36, 37, 38, 39, Rodriguez individually and 40 applicable penalties potentially consider the relating to claims the testimo- reasserts five Witt, 424, 469 U.S. this case. See ny Thomas the district Patricia which of S.Ct. at 852. disposed Taylor. Rodriguez’ of under court G allege trial court denied him claims that the right to and his constitutional cross-examine 50, Rodriguez as In 49 and Issues and assert more than a confront witnesses jury qualification of the that the death serts prosecu- credibility of the attack on the mere court’s refusal to allow two trial opinion, of part III tion witnesses. juries, death-qualified and one not death- one 37 and 40 because Rodri- we denied Issues right qualified, his Sixth Amendment violated adequately specify errors guez failed jury a fair of to a from cross-section drawn postconviction grounds for relief. We community rights under the Due and his arguments contained the substantive address Punishment and Unusual Process Cruel 38, in Issues and 39. federal and Colorado Consti Clauses of the McCree, U.S. tutions. Lockhart (1986), 1758, 90 L.Ed.2d 137 106 S.Ct. Supreme Court held that

the United States 36, Rodriguez In Issue contends qualification violate of a does not death illegally court prosecution and the trial requirement of the the fair cross-section immunity absolute granted Patricia Thomas the Constitution Sixth Amendment because prosecution.39 psychiatric from A defendant lacks stand background, subject record and ing propriety grant to contest the of a reconsideration if demonstrated immunity to witness. United States v. either the relevance such evidence at trial Cir.1978), Trammel, (10th 583 F.2d part bias on the attorney’s the district 'd, 100 S.Ct. relating office Thomas. v. 4 128-29. aff (1980); L.Ed.2d 186 United States v. Rau The remaining trial denied each of the (7th Cir.1975). hoff, 525 F.2d Ac requests suppression. Id. reject cordingly, we this claim. Here, Rodriguez contends district granting court’s of the motion in prevented limine effective cross-examination 38, Rodriguez In Issue claims that the trial impeachment thereby of Thomas and court’s restriction on defense counsel’s cross- prevented being apprised from impeachment examination and of Patricia However, her true motives biases. he process rights.

Thomas violated his due fails to suppression show how the of Thomas’ trial court has juvenile discretion de psychiatric background record and scope termine and limits cross-exami substantially right affected his fundamental nation, and, discretion, an absent abuse to cross-examine and confront Thomas. We rulings the court’s will not be disturbed on prop therefore conclude that the trial court Walker, appeal. People v. erly partially exercised its discretion in (Colo.1983). 122-23 Our review the trial granting prosecution’s motion limine. rulings scope on court’s the of defense coun Snyder, People See v. sel’s cross-examination of Patricia Thomas (Colo.1994)(stating that trial court’s determi discretion, and, any fails to reveal abuse of admissibility nation on of evidence will not be accordingly, reject we Issue 38. discretion). overturned absent an of abuse B In Issue Rodriguez claims that the trial granting prosecution’s court’s the In “Motion Issue claims that the trial Proper Impeachment prejudicial Limine re: of Patri- court refusing committed error jail cia psychiatrist, Kathy Thomas” constitutes reversible error. to allow the Dr. Mo- prosecution’s rall, requested testify. The motion limine Defense counsel Eisner (1) suppression following the evidence: asked the court whether it would allow him County testify conviction pre- Thomas’ in Denver Court to call Dr. Morall to as to (2) -theft; second-degree scription drugs by Rodriguez for vehicle at taken motor trial, alleged drugs Thomas’ recantation a statement time effect demeanor, given juvenile burglary to Denver in a Rodriguez’ pre- Police and that she (3) case; recogni- granting personal drugs of a scribed the because was R., zance bond Thomas when she was incar- anxious. v. at Id. 145-148.40 The case; appear cerated for failure to a Rodriguez’ on traffic record contradicts claim that the (4) (5) juvenile record; Thomas’ Thomas’ trial Morall court refused allow Dr. (6) Rather, psychiatric background; testify. an accusa- trial “I court stated: am by Rodriguez jewelry testify, just saying tion that Thomas stole she can’t but I am R., saying prosecution] [the from Lorraine Martelli. at 471-73. then [has] granted right trial motion in 147. court limine to cross-examine her.” Id. at We concerning juvenile prejudicial reject as to evidence Thomas’ find no error and Issue 95. “Application Immunity,” represented 39. In its for 40. court that Dr. Witness Eisner to the Mo- prosecution requested that the trial court testify rall as “I am doctor would follows: grant immunity Patricia Thomas "absolute from medication; jail; prescribed I he was R., prosecution.” 2v. at 8. The trial court R., anxious; this is it v. 34 at what does.” granting ”[i]m- entered an order Patricia Thomas munity arising prosecution from transaction out of above case.” Id. Yes.

C COMPOS: Id. at 57. 30, Rodriguez that the In Issue contends did September DESMOND: grant a unjustifiably refused to trial court her knife for Patricia Thomas receive Rodriguez to David to allow call continuance birthday? conclude that We Martinez as witness. Yes. She did. COMPOS: argument is meritless. Rodriguez’ you? it to Did she show DESMOND: 9, 1986, Rodriguez called On December Yes. COMPOS: R., v. 29 Martinez as a defense witness. Id. at 58. Fifth invoked his Amend- 109-112. Martinez Mary, going I am to hand DESMOND: Id. privilege against ment self-incrimination. People’s you has been marked what being after The trial court released Martinez you Have ever seen Exhibit C-l.41 they by Rodriguez’ counsel that did advised knife before? call him as a witness. not want to further COMPOS: Yes. Contrary to misrepresentations appeal, on this the record Where? DESMOND: that, time subsequent to the the court shows party. At [Patricia Thomas’] COMPOS: Martinez, Rodriguez did not move released you? it to Who showed DESMOND: to allow a continuance order court for She did. COMPOS: testify. Accordingly, we Martinez to further you that’s How do know DESMOND: reject Issue 30. knife? same asserts Issue By of it and what it the name COMPOS: erroneously his motion for trial denied like. looks secure the attendance a continuance to you by the mean DESMOND: What do Cruz, allegedly would have testified who Sam name of it? into as the knife admitted evidence says “Tiger” It on it. COMPOS: to kill Lorraine Martelli was weapon used (footnote added). at Id. 59 gave Patricia Thomas as knife he same objected to prosecution also defense The Rodriguez birthday present. claims that testifying Cruz’ state- investigators as to impeached Thomas’ have testi- Cruz would testimony consti- would ments because such knife mony had never seen the that she The trial court hearsay. Id. at 99. tute Rodriguez it kill Lorraine before used to for a continuance Rodriguez’ motion denied Rodriguez subpoenaed Cruz as Martelli. request to have the inves- alternative and his R., witness, appear. Cruz failed to testify as to Cruz’ statements. Id. tigators continu- Rodriguez moved for a v. 30 at 98. at 101. and also attendance ance to secure Cruz’ requested court defense that the trial allow denying of a granting The testify made investigators to as to statements lies within the sound motion for continuance by the court denied the in the event Cruz and will not be of the trial court discretion prosecu- for continuance. Id. The motion appeal unless the record re on overturned continuance objected to the motion for

tion of that discretion. Peo flects a clear abuse testimony would be ground that Cruz’ on the (Colo.1989); 386, Wells, 776 P.2d ple v. by presented testimony cumulative of the 397, 399-400, 497 People, v. 178 Colo. Miller direct Compos at trial. Id. at 100. On Mary (1972). Here, testimony Cruz’ P.2d Desmond, Compos tes- Robin examination Com merely have been cumulative to would tified as follows: testimony Rodriguez fails to pos’ trial. denial of his mo that the trial court’s September of show [I]n

DESMOND: prevented him from ef birthday tion for continuance you party for Patri- attend a did and, Thomas, accord fectively impeaching cia Thomas? was of this knife inscribed Martelli. The handle People's was the knife admitted Exhibit C-l "Tiger." with the weapon Lorraine word used kill into evidence ingly, we court Marquez conclude that the district withdraw as counsel for in the theft properly Marquez exercised its discretion. cases. Id. later delivered the in criminating attorney’s letters to the district Rodriguez also contests the trial office. Id. request court’s denial his to introduce guilt trial, through testimony phase Rodriguez’ At Cruz’ statements Mar- investigators. quez Rodriguez defense The admission of evi testified that wrote her the so, that, trial in doing dence falls within the court’s discretion letters and intended, he appeal give and will Marquez opportunity not be disturbed absent an present Ibarra, People abuse discretion. exchange letters to Little in for the reduction (Colo.1993). P.2d “To show an abuse pending or dismissal charges theft discretion, appеllant against an must establish her. v. 30 at 69-73. record that, circumstances, following under the trial exchange reflects the on .cross-ex- reject court’s Marquez by decision to the evidence was amination Silverman: unreasonable, manifestly arbitrary, or un lady You know SILVERMAN: over Here, reasonably Id. trial fair.” here, Ms. Robin Desmond? concluded that the introduction of Cruz’ MARQUEZ: Yes. through statements investigators defense approach we EISNER: Can the bench? prohibition against hearsay, would violate the THE COURT: Yes. 802, and, accordingly, see C.R.E. find we no (Whereupon, following was error. had at the bench between the Court D counsel.) Issue contends that the anticipate trying go EISNER: I he is erroneously trial court request refused his Joyce into the fact David and Robin (cid:127) Attorney call wit- District Mike Little as a public Desmond are defenders and work reject ness. We this claim. think, in the same law firm. I don’t Honor, Your that is relevant. trial, prosecution At introduced letters girlfriend, Margie from his bring up I SILVERMAN: will not jail, Marquez, prisoner another defenders, they’re public fact but I will which admitted he Lor killed bring they together fact out the work Rodriguez, People raine Martelli. the same law firm. (Colo.1990) IV), (Rodriguez P.2d you any objec- COURT: Do have THE denied, cert. 111 S.Ct. tion? (1991). Marquez L.Ed.2d 789 had EISNER: No. separate felony pending two theft cases and Id. at 128-29. represented by Deputy was Public Defender Court, Joyce. During David v. District further cross-examination Mar- (Colo.1986) I). quez, (Rodriguez bring did Silverman not out fact Joyce’s knowledge, Marquez Joyce public met that Without and Desmond were both Deputy Attorneys Little trial with District Mike defenders. Id. at 129. After the court witness, Marquez Mike Kane them that she as a coun- and and informed excused defense Rodriguez in had letters which incriminated sel Desmond told court that she wanted prose- kidnapping the murder and of Lorraine Mar- to call Little as a witness to rebut the Joyce hearing a with telli. Id. At connection cution’s insinuation that and Desmond cases, felony impermissibly theory Marquez’ Little colluded to form theft informed explained why Rodriguez Joyce possible that a conflict interest had which wrote the developed Marquez incriminating Marquez. public to Id. at 164- between and letters sought testimony Marquez initi to defender’s office because had 65. Desmond elicit from not attorney’s Marquez’ contact with the district of Little that counsel did know ated However, Marquez arranged not inform turn the letters fice. Id. Little did to attorney’s Joyce why Marquez to the district office. Id. had initiated contact. over Joyce it requested and allowed to The trial court told Desmond that would Id. was destroyed suppressed or any attempt to Little show that state

deny call as witness. constitutionally evidence. P.2d material Id. can be collected and at 339. “When evidence view, In our the record does not performance pro preserved in the of routine pros support Rodriguez’ contention that the by agents, the failure to do so state cedures impression a false of collu ecution created suppression evi tantamount Joyce. and sion between Desmond Silver- Id. To meet Trombetta’s standard dence.” testimony Marquez merely from man elicited materiality, the evidence constitutional Joyce in the same that Desmond and worked (1) possess exculpatory an value that must: firm, explicitly and Eisner stated that he law de apparent the evidence was was before objection question. Id. at no such a had (2) stroyed; a nature that the and be of such Furthermore, specifically 129. Silverman compa be unable to obtain defendant would Joyce had knowl Marquez whether asked reasonably by available rable evidence other Marquez Rod edge plan between Trombetta, 489, 104 at means. U.S. incriminating let riguez Rodriguez’ turn 2534; Greathouse, P.2d 338- at S.Ct. or over to Little to secure reduction ters eases; Marquez’ Marquez theft dismissal 27, Rodriguez alleges that In Issue attorney did not know of answered that her destroyed exculpatory photo- prosecution plan. Finally, Rodriguez had Id. such by police which graphs taken showed- to elicit opportunity on redirect examination body on David Martinez’ bruises and cuts Marquez rebutting infer testimony from prov- photographs would have and that these of collusion which had been created ence sexually en that Martinez assaulted so. prosecution, but failed do We killed Lorraine Martelli.42 conclude that the trial court’s refusal to allow Rodriguez to Little a witness did not call view, In our the record is inconclusive as rights. substantial affect police photographs ever took whether the body. showing cuts bruises on Martinez’

VIII George Kennedy, part who took Detective transported him arrest of Martinez and Exculpatory Evidence police headquarters, that he did testified 28, Rodriguez collectively In Issues Mar- photograph physically or examine not destruction excul- asserts that the state’s while Martinez was unclothed. tinez process patory violated due of law evidence Sergeant Nichols testified at 79. Robert requires sentence and that his death police police Martinez head- disrobed disagree. convictions be vacated. We photographs, quarters and took some but did Process Clause of the The Due conclusively photo- those state whether Amendment mandates Fourteenth graphs and cuts on Martinez’ showed bruises criminal defendants favor state disclose to body. After Nichols’ testimo- Id. 159-60. guilt material to either able evidence which is ny, defense counsel Eisner told district Trombetta, punishment. California had not received the 2528, 2532, 104 S.Ct. Id. at photographs Nichols described. (1984); Maryland, Brady v. L.Ed.2d 413 response, prosecutor stated In Silverman 1194, 1196-97, 83, 87, S.Ct. U.S. he Nichols was confused and that believed (1963); People Sheppard, L.Ed.2d “as far I know David Martinez was that as (Colo.1985). People v. Great P.2d stripped down.” Id. at never (Colo.1987), house, 334, 338-39 we 742 P.2d Assuming photographs that such forth in Trombetta adopted the standard set exculpatory value that exculpatory evi taken and had determining the value of were for alleged destruction apparent their process claim. Great- was before dence in a due state, satisfy house, by Rodriguez fails to first that a defendant must we held parts trial, allegedly and on other and showed cuts bruises the court admitted Exhibits D-57 42. At photographs of on David body. were cuts D-58 which Martinez' photographs at here hands. The issue Martinez' prong of second Trombetta —that regarding he could court no entered order the de- comparable obtain by not evidence other rea- struction such evidence. sonably Ray- available means. Detective Here, Rodriguez claims that the destruc- mond he took Estrada testified that Martinez photograph tion process violated due police headquarters to and had Martinez re- photograph because the would have im- R., move his clothes. v. 28 at 150. Estrada peached testimony in Thomas’ which she de- stated he that examined Martinez’ naked abduction, nied rape, involvement body injuries, except and saw no fresh and murder of Lorraine Martelli. We hold the cuts on Martinez’ hands. Id. at 151. that the destruction the photograph Estrada further he testified that took a video issue does not amount to a violation of due police of an interview with Martinez head- process comparable because evidence was video, quarters. Id. at 155-57. In that Mar- available. Roblez testified she observed tínez took close-up off his shirt and shots chest, a bruise and welts on Thomas’ id. at

were taken of a bruise on his elbow and 124, and Eisner cross-examined Roblez re- bicep. discoloration of his Id. injuries. garding the nature of these Rodri- guez also trial, opportunity impeach had the to

At Eisner cross-examined Estrada by introducing R., Thomas Officer regarding videotape. Roblez’ notes v. 28 at 155-56. describing injuries, Thomas’ but failed to do offered no evidence to establish so. Given the and availability existence videotape that the accurately failed to show notes, Officer testimony Roblez’ we re- photo- bruises cuts contained ject Rodriguez’ contention that graphs the destruc- Accordingly, at issue. we conclude photograph tion of the pro- denied him due videotape comparable that the contained evi- cess. body dence cuts and bruises on Martinez’ exculpatory pho- the destruction of

tos, existed, they if did violate IX process rights. due Jury Instructions 28, Rodriguez In Issue contends that the Rodriguez claims unconstitutional deficien- destroyed exculpatory photograph state an guilt phase cies in instructions on showing bruises on and cuts Patricia Thomas’ assault, first-degree second-degree sexual prose- chest. On direct examination kidnapping, aggravated robbery, aggravated cution, Jody Officer Roblez testified that she theft, conspiracy motor vehicle to commit physically examined Thomas observed first-degree deliberation, murder after welt marks and a in the bruise middle of complicity. Thomas’ chest. v. 27 at 124. Roblez police photograph stated that the took a A only be defendant can convicted injuries. these Id. Roblez further testified upon proof beyond a reasonable doubt of injuries in that she noted these her written every charged. element of the crime Cham report. prosecution stipulated Id. The (Colo. People, bers v. photo personnel inadvertently lab failed 1984). Thus, a court must instruct a on properly develop photograph. Id. at every each essential element crime 125. Defense counsel Eisner stated charged “to enable them whether assess court that he wanted to make a record every an proved element of offense has been photograph exculpatory destruction of the beyond a reasonable doubt.” Id. at 1175-76. bring evidence and he intended plain failure do so is error. Id. at 1176. photo personnel testify. lab Id. at 25. However, photo Eisner not call the did lab

personnel present relating evidence to the

photographs. 110, 111, allege Issues and 132 defi-

Rodriguez following did not make a motion for relief portion ciencies of Instruc- learning photograph guilt phase jury after that the Thom- tion of No. instruction injuries destroyed, degree: as’ had on been sexual assault the first

272 in adequately No. 16 Instruction

INSTRUCTION NO. 16 requisite on mens rea structed the in the Assault The elements Sexual “knowingly,” term when offset because the Degree are: First elements, succeeding modifies all from other (1) Defendant, Bossert, That the People v. 722 See conduct elements. (Colo.1986); People v. Free P.2d 1011 Denver, (2) County of City and in the (Colo.1983). man, 1371, 1377-78 P.2d 668 on or about Novem- State of Colorado 14,1984, ber of a unanimous requirement (3) knowingly, by Paragraph 4 of compromised not was theory No. 16. Instruction (4) penetration on Lor- inflicted sexual sexual not on whether the defense focused Martelli, and raine occurred, he on whether or David assault but (5) Martel- caused submission of Lorraine People See Martinez committed the assault. li, (Colo.1990) Rodriguez, 970 (6) physi- through application actual denied, IV), (Rodriguez cert. violence, physical cal force or (1991). 112 L.Ed.2d S.Ct. present a does not the evidence “[W]hen (7) or physically was aided the Defendant jurors may that dis reasonable likelihood persons in the by one or more abetted commit agree which acts the defendant or the Defendant commission the act ted, a prosecution designate need not deadly weapon a or was armed with instance,” People, particular Thomas v. suffered serious that Lorraine Martelli (Colo.1990),nor, in the case of P.2d bodily injury. assault, particular sexual sexual a mode of R., v. at3 577. Likewise, need penetration. the instruction deadly weapon specify type which not following Rodriguez claims the deficien- Rodriguez used.44 (1) modify the Paragraph 7 did not cies: with was armed a phrase “the Defendant conclude, however, We that Para deadly weapon” “and deadly with used constitutionally graph and can deficient victim;” weapon to submission of the cause first-degree support a conviction for sex not (2) specify that the instruction did felony. Paragraph 7 a class 2 ual assault as (3) knife;”43 “a Para- deadly weapon was attempts alternative to summarize the three specify its that alternative graph did not first-degree as which convert sexual factors “in the commis- elements must have occurred felony sault from a class 3 into a class (4) assault;” the instruc- of the sexual sion (1978). 18-3-402(2), felony. § 8 C.R.S. See specify mental state of that the tion did not 18-3-402(2) provides for enhance Section “knowingly” of the applied to each element felony if: ment of the class (5) offense; re- did not the instruction (a) assault In the commission sexual jury unanimity on either the mode quire by physically ele- the actor is aided or abetted penetration or on the alternative sexual persons; or one or more other Paragraph ments deadly hearing, weapon.” No. 25 defined Instruction pretrial motions defense coun- 43. At the firearm, charging Rod- "deadly weapon” sel indicated that the information whether loaded as "a riguez striking knife; had been amended unloaded; with sexual assault bludgeon; or other or R., "to-wit, a knife.” v. 13 at the words instrument, device, weapon, or material sub- However, contain a the record does not 21-22. copy stance, v. 3 whether animate inanimate.” Therefore, as amended. of the information argued the in- at 587. has not brief, assumes, analysis Rodriguez' our does "deadly weapon” uncon- definition of structional was not amended. that the information charged expanded upon stitutionally the offense information, although he has made analo- in the charging sex- with 44. The information opinion. gous arguments. part For V of this alleged was "armed ual assault KNIFE, part, discussed in that we conclude deadly weapon, the reasons to-wit: with a unconstitutionally deadly weapon to cause submission did not used said the instruction R., v. No. 16 the victim.” Instruction upon charged. expand the offense only "the was armed with stated Defendant (b) inju- bodily The victim Rodriguez alleges suffers serious In Issues and ry; or support insufficient evidence to the enhance- first-degree ment of his conviction for sexual (c) deadly weap- The actor with a is armed felony. assault from a class 3 to class deadly on weapon and uses the to cause light here, holding of our these issues are of submission the victim. rendered moot. 18-3-402(2). § presence any The of one of only these three alternatives difference B first-degree between sexual assault as a class Rodriguez alleges Issues 113 and felony first-degree and sexual assault as a following constitutional deficiencies in the felony. class 3 guilt phase instruction: Paragraph 7 instructed on all factors, inadequately three alternative but INSTRUCTION NO. (c) instructed as to alternative of section 18- The elements of the crime Kidnapping of 3-402(2). given, Under the instruction as Degree the Second are: jury could have convicted higher felony only upon of class based his (1) defendant, That the possession during of the knife the sexual (2) City Denver, County and of assault, upon possession rather than his and State of Colorado on or about Novem- during of use the knife the sexual assault. 14,1984, ber supports Record evidence either of the other (3) knowingly, However, jury two alternatives. because the (4) otherwise, forcibly, or seized car- only verdict, general prosecu returned place ried Lorraine Martelli from one proved tion must have be each alternative another, yond a reasonable doubt. See v. Peo James (5) consent, (Colo.1986). ple, jury without her 727 P.2d was not on instructed both elements alter (6) justification, without lawful (c) native and could not have assessed wheth (7) Lorraine Martelli was the victim a prosecution proven er the had each element sexual assault. beyond of that alternative a reasonable part). (quoted 3 at 579 in relevant Chambers, doubt. See 1175-76. deficiency plain This constitutes error. Rodriguez argues two deficiencies in this (1) speci- instruction: the instruction did not However, deficiency, than other fy “knowingly” ap- the mental state language instruction tracked the of both the (2) offense; plied to each element of the jury sexual assault statute and the model Paragraph 7 did not articulate the essential 18-3-402(2)(e); § instruction. See CJI- elements sexual assault. adequately ap- Crim. 12:04. The instruction adequately Instruction No. 18 instructed jury prised the of the essential elements of requisite rea mens because felony, first-degree sexual assault as a class 3 “knowingly,” oth- the term when offset from jury unanimously found of those and the each elements, succeeding conduct er modifies all elements. Bossert, 1011; 722 P.2d at elements. See Rodriguez’ remand conviction for first- We Freeman, 668 P.2d at 1377-78. 2 felony degree sexual assault as class IX(A) above, In part with to vacate As the district court directions stated judgment adequately judgment and enter struction No. 16 advised the first-degree sexu sentence for the lesser included offense of the essential elements felony. first-degree felony. as a The trial court sexual assault a class 3 al assault class (1986); 18-1-408(5), § People repeat 8B need these in Instruction C.R.S. elements (Colo. Henderson, do P.2d 1062-63 No. 18. The failure to so did not affect 1991) and, rights (discussing of second-de substantial enhancement conviction). therefore, 52; Crim.P. gree kidnapping was harmless. See

274 (Colo. Mozee, adequately No. 19 instructed Instruction People v. 1986). requisite rea jury mens because on “knowingly,” from oth-

the term when offset elements, succeeding all conduct er modifies C Bossert, 1011; P.2d at elements. See 116, Rodriguez alleges 115 and Issues Freeman, P.2d at 1377-78. phase aggra- guilt in the instruction error read, part, robbery, which in relevant vated D as follows: 118, Rodriguez contends In Issues 117 and portion No. following of Instruction that the NO. 19 INSTRUCTION on the inadequately instructed Aggravated crime of The elements of the first-degree aggravated of essential elements Robbery are: motor vehicle theft: (1) defendant, That the Denver, (2) NO. 17 City County of INSTRUCTION in the Colorado, on or No- of about State Degree crime of First The elements of the 14,1984, vember Aggravated Motor Vehicle Theft are: (3) knowingly, (1) defendant, That the (4) value, anything of took Denver, (2) County City of (5) person presence of Lor- Colorado, from the or Novem- of or about State Martelli, 14,1984, raine ber threats, (6) forcé, by (3) or intimi- the use of knowingly, dation, and (4) control over a obtained or exercised (7) robbery vehicle, the im- or during the act motor therefrom, flight

mediate Martelli, (5) belonging to Lorraine (8) knowingly, threat, (6) by authorization or without (9) robbed, any other put person or (7) motor and the did use the defendant fear of death or person, reasonable in the of Murder In vehicle commission bodily injury, Degree or Assault In The First Sexual Degree (10) Degree Second intimi- The First use of force threats or Kidnapping. dation, (11) deadly weapon. R., with a 3 at (1) the in- claims two errors: v. at 580. predi- elements of the struction omitted the (1) Rodriguez contends that: Specifically, murder, first-degree cate first- offenses specify deadly that the Paragraph 11 did not assault, second-degree degree sexual (2) knife;” the instruction weapon was “a (2) the instruction did not kidnapping; and specify that the mental state did not “knowingly” specify that the mental state “knowingly” applied to each element applied to each element of the offense. wholly arguments find these offense. We above, “knowingly,” without merit. the term stated As instructional ele- when offset from other specify need not The instruction ments, succeeding all conduct ele- modifies Rodriguez used. deadly weapon which type Bossert, 1011; Free- 722 P.2d at ments. See present a the evidence does not “[W]hen man, Thus, P.2d Instruction at 1377-78. jurors may dis likelihood reasonable adequately on the No. 17 instructed the commit the defendant agree on which acts requisite rea. mens ted, designate a prosecution need not instructions, Thomas, together, ad instance,” taken P.2d at particular jury of the essential robbery, equately advised the 153, nor, aggravated in the case murder, first-degree first-degree deadly weapon. elements particular type of assault, second-degree kidnap- sexual and The a conspira essential elements of (1) (2) ping. repeat cy The agreement trial court need not these are: an or between two (3) persons attempt elements Instruction No. 17. The more to commit refusal or 18-2-201(1), § so not commit a Rodriguez’ do did affect of crime. 8 C.R.S. therefore, (1978); and, rights substantial Young People, was not 180 Colo. (1972). 52; Mozee,

harmful See P.2d error. Crim.P. The essential elements present P.2d at 129. are all in Instruction No. 20. Instruction No. 20 need not re E peat the first-degree elements of af murder deliberation, ter as Instruction No. 13 ade 123, 124, 129,45 In Issues quately jury advised the of those elements. following portion contends that the instructions, See v. 3 at 573. The taken guilt phase conspiracy instruction on to com whole, jury as a informed the of the elements first-degree constitutionally mit murder was conspiracy of to commit first-degree murder deficient: prejudice after deliberation and not did Rod riguez’ rights. substantial INSTRUCTION NO. 20 Finally, although “a criminal at The of Conspiracy elements the crime of tempt readily is not understandable to To Commit Murder Degree In The First person ordinary intelligence of without some (after deliberation) are: court,” explanation by People further the (1) defendant, That the Leonard, (Colo.1983) (dis 37, 42 673 P.2d (2) Denver, City County of cussing plea), of of entry same in context Colorado, State of on or about Novem- trial “attempt” court’s failure to instruct on 14,1984, ber error, jury specifi here was harmless as the (3) promote with intent or facilitate cally Rodriguez guilty first-degree found of the commission of the of crime Murder Thus, although murder after deliberation. (after Degree The First delibera- precision, No. 20 no of Instruction is model tion), jury’s first-degree verdict on af murder (4) ter deliberation enables this court to deter agreed person persons with another or theory upon jury them, mine which based its they, or or one more verdict, James, but engage in

would conduct which consti- cf. uphold (af- conspiracy conviction for Degree Murder In tutes The First deliberation) first-degree to commit murder after delibera attempt ter anor to com- (after tion. Degree mit First Murder The

deliberation), and F (5) defendant, person aor with whom conspired, per- the defendant has 131, Rodriguez In Issues 130 and asserts pursuance act in formed an overt following guilt constitutional error in the conspiracy. such phase jury complicity: instruction on R., v. 3 at 581. INSTRUCTION NO. (1) Rodriguez alleges following errors: person guilty A of an commit- offense not all Instruction No. does include by person if a complici- ted another he is conspiracy elements of to commit first-de- guilty complicitor, To as a tor. be (2) murder; gree Instruction No. 20 did not following beyond must be established murder; first-degree list the elements reasonable doubt: (3) the court did instruct the meaning “attempt.” been crime must have committed alleges guilt phase error in 129 are rendered moot Issue also tions Issue regarding conspiracy instructions to commit sec- district court’s vacation of those convictions and ond-degree kidnapping conspiracy to com- part XIV. our affirmance thereof. infra aggravated por- mit motor vehicle theft. These adequately given person instruction

2. Another must have committed requisite mens rea. part the crime advised all above, term, rea when As stated the mens 3. The must have had knowl- defendant elements, from other instructional offset edge person intended to that the other succeeding conduct elements. modifies all part commit all or of the crime Freeman, Bossert, 1011; 722 P.2d at see aid, intentionally 4. The defendant did Further, complicity “[s]ince P.2d at 1377-78. abet, advise, encourage or the other crime, statutory defi not a the is substantive person planning in or the commission People apply.” v. of mens rea do not nitions of crime. the (Colo.1981), R.V., It is 635 P.2d R., at v. 3 572. jury if informs the the instruction sufficient “if, complicitor with the that the accused is a (1) argues following errors: Rodriguez the commission promote intent to or facilitate the adequately not the Paragraph 4 did advise aids, abets, offense, [the he the or advises of (2) rea; jury requisite the the inclu- of mens planning person who the offense] commits “encourage” Paragraph 4 the sion of word § 18-1- committing offense.” See [that] or statutorily prohibited expanded upon the R.V., 603; at The instruc 635 P.2d 893-94. (3) conduct; part” language “all or of the adequate respect. given was in that tion as contrary to the Paragraphs 3 4 is com- plicity statute.46 the “encour The inclusion of word statutorily “A person upon states: age” expand

The relevant statute the does legally principal plain as for the be- prohibited “[t]he accountable conduct because ” constituting ‘encourage.’ a criminal of- meaning of another of Al havior ‘abet’ includes if, promote 160, 166, or facili- People, with the intent 597 P.2d fense onzi v. 198 Colo. aids, (1979). offense, he tate the commission plan- abets, person the or advises other Finally, Rodriguez contends that § 18-1- ning committing the offense.” or language Paragraphs of part” “all or (1978). 603, 8 C.R.S. process due because it allowed the violates Rodriguez asserts that should first-degree jury Rodriguez to convict of jury using Paragraph 4 have instructed by a if he principal, committed even murder jury proposed of instruction: his only principal’s intent to aware were a lesser offense.47 commit or commission of Having knowledge, defendant did is, jury Rodriguez advise, That could convict aid, abet, encourage intentionally or first-degree murder of Lorraine Martelli person in the commission or the other only agreed he her assault. Al if even planning the crime. though given the instruction followed added). R., Rodriguez (emphasis v. 3 instruction, 6:04, jury model see CJI-Crim. omission was argues that the effect of this agree language that the inclusion of the we though the require guilty a verdict even “to conclude, part” was “all or erroneous. We aided or Rodriguez of Mr. which actions however, harmless. that error was of the murder after the commission abetted Rodriguez’ supports con- knowledge Record evidence without were done deliberation first-degree murder after deliber- perpetrator viction intended to com- that the actual principal. complicitor a a Opening ation as either murderRodriguez’ Brief mit the Rodriguez said Patricia Thomas testified at 351-52. particularly guilty complicitor, was first- Rodriguez the infor claims error in that also However, charge complicity. Rodriguez’ degree mation did not murder after deliberation.” charge prosecution separately the crime need not Opening Our review of the Brief 350-51. Thompson, People complicity. v. 655 P.2d argued prosecution that the com- record reveals (Colo. 1982). 416, 417-18 only charge first-degree murder plicity for the We error after deliberation. conclude prosecution re- contends that the complicity instruction neither affected in the guilty arguing complicity "in for a verdict on lied rights prejudiced Rodriguez’ nor his substantial charges" and that on the murder and other charges. argued defense on the other prosecution Mr. "[t]he they (1977). would have kill Lorraine Martelli convic- R., because Martelli had seen their faces. v. tion under requires section 16-11-309 25 at 200. judge Thomas also testified that Rodri- to sentence defendant “to a term of guez greater alone stabbed and incarceration killed Martelli. Id. than the maximum 210; R., 26 at presumptive range, v. 20. The forensic serolo- but not more than gist term, presence provided confirmed Martelli’s twice the maximum for such underwear, jacket, 16-ll-309(l)(a). § blood offense.” jeans R., after his arrest. 28 at 193-97. jury convicted of five man- Furthermore, in returning guilty datory sentencing verdict counts for crimes of vio- charge on the of conspiracy to commit first- However, lence. at3 554-558. deliberation, degree murder after record reveals that the trial court never im- necessarily Rodriguez specifically posed found that sentence on these verdicts. The promote intended to or facilitate the first- trial “Judgment court entered a of Convic- degree (Mitti- of murder Lorraine Martelli. See tion: Sentence: and Order to Sheriff IV, Rodriguez mus)” P.2d 989-90. This find- jury’s guilty which failed to include the ing jury’s indicates the unanimous belief that Rodriguez’ on of verdicts crime violence Rodriguez agreed to the commission of first- charges mandatory and did not impose the degree entirety, murder its rather than sentence for those convictions. v. 4 intending part of of commission the offense 804-07. or of a lesser included offense. The instruc- impose The trial court’s failure Rodriguez’ complicity tional error toas did mandatory sentences on crimes of vio rights prejudice not affect his nor substantial Rodriguez’ lence convictions moots claims his defense. The error is harmless. See that of his sentences the crime violence Crim.P. convictions should be vacated.48 We also adequately Instruction No. 19 advised the Rodriguez’ refuse to vacate death sentence

jury aggravated of the essential of elements because that sentence was not on his based robbery, and conviction on that Rather, crime of violence convictions. count must stand. jury imposed the death its sentence based on finding prosecution proved that the the exis

G statutory aggravating tence of factors and outweighed mitigating these factors In Issues Rod- IV, Rodriguez 794 P.2d at factors. 986- riguez collectively that the “crime of asserts 87; R., aggravating v. 4 at 746-53. The guilt phase violence” in the of instructions his jury require factors found did not impermissibly jury’s trial tainted the decision jury to determine whether com impose penalty. the death violence, mitted a crime of and neither the information, By prosecution prosecution presented nor the defense evi charged Rodriguez a with violation section penalty phase dence at the 16-11-309, (1986), requires 8A C.R.S. which convicted of crimes of violence. mandatory a of a sentence for one convicted is “a crime violence. crime violence H used, pos crime which the defendant or of, deadly summary, Rodriguez’ arguments re- sessed and threatened the use attempted garding guilt phase jury on weapon during the commission instructions statutorily commission” certain enumerat crime of violence are moot. The instructions 11—309(2)(a)(I). kidnapping, aggravated second-degree § on ed crimes. The crime 16— sentencing provision robbery, aggravated motor vehicle theft of violence statute is a separate were The instructions on and does not create a substantive not erroneous. Court, complicity conspiracy to first- Brown v. 194 Colo. commit offense. District 135, Rodriguez alleges tions. This issue is likewise rendered moot. In Issue insufficient support evidence to the crime of violence convic- light mg arguments contained must be considered degree murder after deliberation rulings, objections, the and the record The instruction on the only harmless error. erroneous, particular case. We address claims first-degree sexual assault was closing argument misconduct in prosecutorial remand Rod- requires that we error ease-by-case Peo riguez’ first-degree as- Harris v. conviction for sexual basis. See (Colo.1995). ple, P.2d 267 n. felony to the district court sault as a class judgment with directions to vacate People Rodgers, 756 P.2d 980 for the judgment and sentence lesser enter (Colo. 1988), that, during clos we concluded first-degree sexual assault as offense of prosecution improperly ing argument, felony. class 3 exercise of his commented on defendant’s Id. at 983. right to a trial. constitutional X eval following forth standard for set We uating prejudicial improper of an effect Closing Arguments Guilt Phase conviction: argument on a defendant’s challenges his con- In Issue error is constitutional [I]f asserted sentence, claiming that victions and death dimension, required unless the reversal closing arguments guilt prosecution’s [reviewing] that the er- court is convinced phase trial violated the Due Process of his beyond a reasonable ror was harmless of the federal and Colorado Consti- Clauses possibility If there is a reasonable doubt. tutions, right trial his constitutional preju- been that the defendant could have prohibition jury, against cruel and the beyond the cannot harmless diced error be reject argu- punishment.49 We this unusual a reasonable doubt. ment. (citations quotation at and internal Id. 984 Davis, omitted); People 794 “ see v. marks criminal conviction is not [A] (Colo.1990).50 159, P.2d 189 prose the lightly be overturned on basis of Rodgers, prose- In we that the determined alone, standing for the cutor’s comments improper not comment did warrant cution’s in or conduct must be viewed statements of conviction be- reversal the defendant’s context; only by doing it deter so can be against the evidence the defendant was cause prosecutor’s af the conduct mined whether “overwhelming.” at concluded Id. 984. We the trial.” United fected the fairness of that: 11, 1, Young, 470 105 S.Ct. States v. U.S. (1985). closing this trial was sufficient 1088, 1044, The evidence at L.Ed.2d 1 84 quantity quality support the in both are not evidence and arguments of counsel jury properly the could not have jury Rodriguez’ conclusion the in case was guilty. at other than arrived a verdict on the function and limitations instructed context, the conduct “was prosecutor’s at Clos- closing argument. v. 3 560. standard, arguments "plain alleges twenty-seven error” not under the 49. instances during closing argu- prosecutorial ing punishment quali misconduct death is ”[b]ecause guilt phase. other, at ments the tatively is a corre unlike and there reliability sentencing sponding need for the Here, allegedly that the contends proceeding, the rec we have elected examine arguments improper violated his constitutional closing arguments been as if there had ord of by jury, right impartial trial due to a fair and (cita objections.” contemporaneous at 972 Id. prohibition against process, cruel and and the omitted). purposes fairness and For tions instances, punishment. Rodri In most unusual guez Rodriguez’ consistency, we review contentions contemporaneous objection did not make contempo prosecutorial as if here of misconduct arguments he now claims constitute which to reversible error. objection normally contemporaneous objections We review no had been made. Where raneous error, the court made to the asserted error must be is his under the standard that claims alleged error under reviews beyond doubt.” See a reasonable "harmless Harris, at 267. "plain 888 P.2d 499, 510, error” standard. Hasting, 461 U.S. 103 United States However, (Colo. Rodriguez, People v. 794 P.2d 965 1974, 1981, (1983); Chap 76 L.Ed.2d 96 S.Ct. denied, IV), 1990) (Rodriguez 498 U.S. cert. 18, 24, 824, California, 87 S.Ct. man v. 770, (1991), 1055, 789 we S.Ct. 112 L.Ed.2d 111 (1967); Rodgers, 756 P.2d at 17 L.Ed.2d 705 prosecu- review claims declined to 984; Davis, 794 P.2d at 189. closing phase during penalty misconduct torial

279 (3d 1993).51 require § not so offensive as to reversal at Although 3-5.8 106 ed. People v. prosecution’s arguments convictions.” defendants’ in some instances Plotner, 297, 302, Colo. 188 P.2d 534 improper, argu- were overzealous and these (1975) (prosecutor’s during statement ments did not rise to the level of reversible closing argument regarding personal his error in constitutional this case. opinion guilt of the defendant’s was im- Here, prosecution’s arguments error). proper, but not reversible Where not do constitute reversible error because appears it that no other verdict could have at ... “[t]he evidence trial was sufficient rendered, properly prosecutorial been mis- quality quantity both support conduct is not reversible error. Hillen conclusion that the ar could have

People, 59 Colo. 149 P. guilty.” Rodg rived at a verdict than other (1915). ers, IV, at In P.2d we light overwhelming of the evidence expressly stated: “We have reviewed presented defendant, against at trial great record in this case with care. We we conclude prosecutor’s improper that the conclude there overwhelming was evi during closing remark argument was guilt personal dence of the defendant’s beyond harmless a reasonable doubt. participation kidnapping, in the sexual as added); Harris, (emphasis Id. at 985 see also sault and murder of Lorraine Martelli.” 794 sufficiency at (stating P.2d that “the added); (emphasis P.2d see also infra presented of the evidence at trial will be XVIII(C) part (detailing against evidence appeal evaluating considered on when claims Rodriguez). that, light conclude We prosecutorial misconduct”); Grandbouche overwhelming against massive and evidence 175, 185, v. People, 104 Colo. Rodriguez, “the could not have arrived (1939) (holding that rule “[t]he where guilty,” Rodgers, at a verdict other than evident, guilt of an accused is incidental prosecutor’s closing P.2d and the improper upon part prose action arguments guilt phase, though improp overlooked”); may cuting officer be v. Miller er, jury could not have influenced the to 41, (1921) People, 70 42 Colo. 201 P. reach a different result. Viewed the con (same Grandbouche). case, prosecutor’s of text the entire the clos postconviction motion, Rodriguez In his as- arguments ing did not “undermine the funda prosecution’s serts for the first time that the mental of the to fairness trial and contribute arguments closing guilt.phase at the his of justice.” of miscarriage Young, a 470 atU.S. require trial reversal of his Af- convictions. According, reject 105 S.Ct. at 1047. we record, reviewing ter the we conclude that Issue 106. parts arguments certain made the prosecution improper. Although were the XI guilt in overwhelming,

evidence of this ease is prosecution’s argu- we not do condone the Proceeding Habitual Criminal opinion, which integ- ments extended into the 13, 1986, rity prosecution, police the the court of the and to On December trial con- comply proceeding pursu- that not the a criminal matters did with Ameri- ducted habitual 16-13-101, (1984 can Bar to relating Association Standards to ant section 8 C.R.S. prosecutorial closing arguments. Supp.), jury beyond a See Ameri- and the found reason- Rodriguez prior can Bar Criminal able doubt that three Association Standards for had Function, R., v. felony Prosecution and Defense convictions. 33 at 63-65. Justice: Sec- falsity provides: any testimony guilt § Standard 3-5.8 of or evidence or the ABA (a) closing argument jury, pros- the In to the defendant. may argue (c) argu- ecutor from evidence should not all reasonable inferences prosecutor should make The not prosecutor in the record. The prejudices appeal ments calculated to to the intentionally misstate the evidence jury. jury may or mislead the as to the inferences it (d) prosecutor argu- The should refrain from draw. jury duty would from ment which divert its (b) express prosecutor The should not his or decide the case on the evidence. to personal opinion the truth her belief or as to jury must inform the of the defendant’s requires trial court to court tion 16-13-101 prior felony- as an alter- length a three minimum of incarceration adjudge defendant with to if the defendant a habitual criminal and sen- death sentence convictions native imprisonment. jury that defendant'to life for the tence it in his best interest decides on apprised The trial court did sentence information. Id. 882 to be such penal- criminal counts before the the habitual defen- The court vacated the P.2d at 533. “ R., 63-66; ty phase sentence, his v. 33 at trial. See stating: ‘The State dant’s death 34 at 50-53. securing a death sentence thus succeeded petitioner’s ground, part, at least in on the penalty phase, prosecution ar At the dangerousness, while same time at the future might escape pris gued that from jury concealing sentencing the true from the he a life sentence and on if received sentencing alterna- meaning noncapital of its Rodriguez’ jury future dan should consider ” — Simmons, (quoting U.S. at tives.’ Id. gerousness deciding whether to return 2193). -, court also held S.Ct. imprisonment instead of sentence of life “[bjecause length of incarceration People Rodriguez, 794 P.2d death. See if sentenced to facing a defendant he is not (Colo.1990) IV), (Rodriguez cert. and relevant information death is accurate denied, 1055, 111 S.Ct. jury presented capital that must be (1991); R., v. at 115. L.Ed.2d death, ... prosecution’s case for rebut 101, Rodriguez that the trial Issue contends delay no the trial court has discretion him on the court’s refusal to sentence habitu charges.” noncapital imposing sentence on penalty phase prior to the al criminal counts at 534. Id. P.2d jury prevented informing him from parole eligible he never for would be distinguishable We find case right to process violated his due rebut Here, the. trial from Simmons and Clark. dangerous prosecution’s arguments future accurately informed the of its ness. sentencing noncapital prior alternatives relies Simmons v. South jury’s capital sentencing deliberations. — Carolina, -,-, U.S. 16-ll-103(l)(b), 8 C.R.S. Pursuant section (1994), 2187, 2190-96, 129 L.Ed.2d 133 (1984 S.Ct. Supp.), required which the court to Tansy, and Clark v. 118 N.M. imprisonment life instruct (1994). Simmons, the United 533-34 possibility imprisonment without ‍​‌​​‌‌‌​​‌​‌​​​‌​​​​​​​​​​‌‌​‌​‌​​‌‌‌‌​‌​‌​‌‌‌‌‌‍the means that, Supreme held where States Court twenty years, trial court parole dangerousness is capital defendant’s future penalty gave following instruction at the his prohibits law release on issue and state phase: process requires that the parole, due sen- tencing jury be informed that defendant INSTRUCTION NO. — -, parole ineligible. is U.S. prison A of life in means that sentence S.Ct. at 2193. to Rodriguez will sentenced Mr. be Clark, specifically prosecutor In relied Department Colorado of Corrections for dangerousness in on the defendant’s future life, twenty spend must calen- and that he incorrectly arguing penalty for the death prison years in he would be dar before

represented jury to the that the defendant’s parole apply from eligible to for release on noncapital for offenses made the convictions that sentence. years. eligible parole for ten defendant Rodriguez mean that Mr. Assuming good maximum This does not P.2d at 532. offenses, life noncapital paroled would be from the sentence for the defendant’s time twenty years. eligible calendar It means not have been after the defendant would parole at thirty-five years. apply he for that time. Id. The that could parole for for serving a life has no prisoner to Id. sentence jury defendant death. sentenced the purely Supreme right paroled. to Parole is The New Mexico ever be 882 P.2d at 529. that, right. Rodriguez If prior privilege, a not a Mr. applied and held Court Simmons twenty deliberations, parole calendar sentencing applied a after jury’s capital for to years, the Parole Board would then decide XII parole Rodriguez. whether or not to Mr. Sufficiency the Evidence of person may fact eligible The that a be Rodriguez Issue contends that the parole for at some time in the future is a presented jury evidence to the was insuffi- in determining factor to be considered support cient to aggravat- his convictions for whether a appro- life or death sentence is robbery felony ed murder and that his priate. You be should also aware that death sentence based thereon must be vacat- facing multiple when defendant is reject ed.53 We this contention. charges in addition to murder can be he prosecution charged The Rodriguez with years sentenced to of a number to be aggravated 18-4-302, robbery under section sentence, consecutively served life (1978), provided C.R.S. court trial which would increase of the amount time jury following with the instruction: becoming parole to be served eligi- before fact, possible ble. it is enough INSTRUCTION NO. 19 given consecutive sentences could be assure a defendant would never be The Aggravated elements of the crime eligible parole for in a natural lifetime. Robbery are: proper your That also a factor for con- (1) defendant, That sideration. (2) Denver, City County in the Colorado, or State about No- R., v. 4 at 783. 14,1984, vember assertion, Contrary Rodriguez’ (3) knowingly, impose the trial court’s failure to sentence on (4) value, anything took noncapital jury’s capi his offenses before the (5) person presence from or Lor- sentencing tal deliberations did not violate Martelli, raine process right due to have accu (6) force, threats, by the use of or intimi- presented rate information to the dation, and prosecution’s rebut for death ease (7) during robbery the act of or im- penalty. given provided The instruction therefrom, flight mediate understanding with fundamental potential sentencing by detailing alternatives (8) knowingly, eligible parole could be for (9) robbed, put person or other years twenty, or receive consecutive sen person, in reasonable or fear death keep prison tences which would him bodily injury, doing the remainder his By natural life. (10) by the use of force threats or intimi- so, deny allowed dation, explain prosecution’s claims of future. (11) deadly weapon. awith dangerousness and ensured “ (quoted part). v. 3 at 580 relevant was not sentenced death ‘on the basis of Rodriguez guilty aggravated found opportunity he information which had no R., robbery. v. 550. 3 at deny explain.’” Skipper or See v. South Carolina, 1, 1, 1669, Here, 476 5 n. 106 Rodriguez U.S. S.Ct. prose- contends that the (1986) 1, 1 (quoting 1671 n. 90 L.Ed.2d Gard Rodriguez cution failed to establish that used Florida, 349, 362, ner deadly weapon during robbery v. 97 S.Ct. a of Lor- (1977)). 1197, 1207, flight 51 L.Ed.2d 393 We find raine Martelli or immediate therefrom and, that, therefore, process accordingly, no violation of due “there a total was failure was, reject proof anyone by Issue 101.52 that means of force portion adopt Rodriguez' 52. We decline to of Clark 53. claim that evidence was insuf- felony ficient to murder is rendered establish "the which holds that trial court has no discre- by holding part opinion moot that the district XIV of this our noncapital delay imposing tion to sentence on properly vacated Rodri- Clark, charges.” See 882 P.2d at 527. guez' felony murder. conviction for 1990, knife, Rodriguez a by September filed motion means of a or intimidation threats presiding Judge from injury.” Rodriguez’ to recuse Peterson put fear into of death postconviction proceedings because she over Opening at Brief 386-87. against complaint appel an had filed ethical reviewing challenging a claim concerning his Michael Heher late counsel support a sufficiency of the evidence to Rodriguez during di representation of conviction, light in the we view the evidence R., Rodri appeal. Am. v. 3 at 589-602. rect People prosecution. v. to the most favorable Judge assigned then J. guez’ case was Gonzales, (Colo.1983); 123,127 Peo 666 P.2d Judge no Stephen Phillips, and Peterson Larson, 338, 341, v. 572 P.2d ple Colo. Rodriguez the case. longer presided over (1977). 815, trial, Thomas At Patricia Ruling on Motion a “Motion for then filed (1) brother, Rodriguez that: and his testified Judge L. Peterson and Recuse Connie Martelli Rodriguez, forced Lorraine Chris Judge.” Id. of Another Substitution (2) away; Rodriguez into car and drove her The motion stated: purse; money from Lorraine Martelli’s took has Although appears that this case been it (3) Rodriguez and killed Lorraine stabbed Phillips Judge Judge instead of assigned to of her Martelli with a knife the back seat time, ruling the mo- at this Peterson (4) car; kept Lorraine Rodriguez Mar- necessary. is Until tion to recuse still R., money 192-216. car. v. telli’s danger granted, is exists motion Rodriguez The established evidence Phillips Judge will Judge Peterson and during kill Martelli used a knife to Lorraine confer about discuss continue to and/or money taking her continuing process of obviously judges this case. Those have robbery perpetration of the and car. The already done so. cease at the moment forci did not Judge Phillips Rodriguez’ “Mo- Id. denied from Lorraine bly money and car took Judge Ruling on Motion to Recuse tion for Martelli, Rodriguez killed but continued after L. Peterson for Substitution Connie People the knife. Lorraine Martelli with stating: Judge,” is] motion “[the Another (Colo.1981) Morgan, 637 P.2d case has been returned [m]oot. This robbery (stating perpetration Judge Phillips pre- 16 where Courtroom end the moment the not come to an does sides.” Id. at 623. money); Whit criminal receives the victim’s 110, 116, People, 161 Colo. man v. Rodriguez filed a On December (same). that, (1966) We hold based 35(b) motion for reconsideration Crim.P. presented, could evidence on the Judge Am. with Peterson. sentence beyond reasonably conclude reasonable a motion for Rodriguez also filed at 811. each ele committed doubt an amended extension of time submit robbery. aggravated ment of offense 35(b) motion. In an order dated Crim.P. 3,1991, Judge January Peterson stated: XIII filed Motion for Recon- Defendant Bias Judicial on December sideration of Sentence [Judge Pe- designating Courtroom alleges In Issues 11 and This is a courtroom]. Courtroom terson’s resulting Judge Pe- from Connie prejudice [Judge Phillips’ courtroom] and 16 case postconvietion pro- involvement terson’s processed Court- will to be continue these issues meritless. ceedings. We hold re- Accordingly, the motion is room 16. judge the trial Judge Peterson served as nothing ferred to There Courtroom guilt penalty phases of Rodri during requires by the which review the motion appeal, remand After direct we guez’ trial. by previously Judge judge. As ruled trial court to set a date for ease to the trial ed the motion to recuse Phillips, the Defendant’s Rodriguez’ death sentence. imposition of moot. [Judge Peterson] is (Colo. 965, Rodriguez, People v. 794 P.2d 1990, Also, 3, January Judge 1990) IV), denied, Id. at 810. 498 U.S. (Rodriguez cert. (1991). Rodriguez’ for exten- 1055, 770, granted motion Phillips 112 L.Ed.2d 789 111 S.Ct. 11, February Phillips of time. Id. sion at 809. On which demonstrates substantial 1991, Rodriguez against filed an amended Crim.P. of mind” Rodriguez. “bent Accord 35(b) Judge Phillips. ingly, reject motion with Rodriguez’ judicial On Febru- we claim of 21, 1991, ary Judge Phillips denied Rodri- bias Issues 11 and 150. 35(b)

guez’ amended Crim.P. motion. Id. at XIV 11, Issue claims “Judge Peterson’s continued involvement in Duplicative Vacation Convictions Rodriguez’ Mr. during postconviction case The district court duplicative vacated as proceedings, despite against her bias Mr. Rodriguez’ felony murder, for convictions counsel, despite and his conspiracy second-degree kidnap- commit her, pendency of a Motion to Recuse was ping, conspiracy first-degree to commit prejudicial Rodríguez’ Opening error.”54 aggravated motor vehicle theft. v. 1 at disagree. Brief at 84. We 216-219; Am.R., v. 9 at 2235-36. The court disqualification judges governed is then concluded that “this is the extent of by 16-6-201, (1986), section 8A C.R.S. 217, relief available to the defendant.” Id. at 21(b). provides, Crim.P. Section 16-6-201 219. The district court did not err in vacat- pertinent part: duplicative ing the or in uphold- convictions (1) judge of a court of shall record be ing the death sentence after that vacation. disqualified try to hear or a case if: “[Cjonspiracy single constitutes a (d) any way He preju- is in interested or offense, although agreement upon which case, respect with par- diced charge contemplates per is founded ties, or counsel. People formance of several criminal acts.” 21(b). purpose Crim.P. “The of the stat- 265, 455 262, 199, 200 Bradley, 169 Colo. P.2d disqualification ute and rule for aof trial (1969). Although Rodriguez and his cohorts judge guarantee person that no is forced agreed to several criminal acts and car then trial judge to stand before a with a ‘bent of agreement, out that ried under the facts of ” Botham, People mind.’ case, conspiracy only violated a sin (Colo.1981) States, (quoting Berger v. United statute, gle can constitutional 65 L.Ed. S.Ct. 481 ly only single penalty single receive for a (1921)). Const, Id.; II, 18; § crime. see Colo. art. Here, (1978) 18-2-201(4), § properly the district court (stating 8 C.R.S. Rodriguez’ person conspires determined that motion to recuse to commit a number “[i]f crimes, Judge upon only guilty conspiracy Peterson became moot the trans he is one Rodriguez’ Judge Phillips. long multiple part fer case to so as such are of a crimes assertions, Contrary Rodriguez’ episode”); single after the criminal Braverman v. case, States, Judge transfer of the Peterson did not United U.S. S.Ct. (“Whether (1942) Rodriguez’ postconviction object involve herself in 87 L.Ed. 23 proceedings anything single agreement more than an admin- of a is to commit one or crimes, many agree role. As her isterial evidenced order of it is either case 3, 1991, January Judge conspiracy Peterson transferred ment which constitutes the which 35(b) punishes. Judge agreement Crim.P. motion to The one statute Phillips agreements and did not rule on the cannot taken to merits be be several Furthermore, Rodriguez conspiracies motion. fails to and hence several it because identify any ruling by Judge envisages Peterson subse the violation several statutes one.”). quent Judge the transfer of the case to rather than 11, Rodriguez judicial postcon- In Issue also contends that the from another district to hear his by: district court's reversible error committed adequately viction claims. These issues were not (1) refusing to disclose communications between presented to the district court in the Crim. P. Peterson, Alvarez; Judges Phillips, and Federico 35(c) supra part motion. See III. (2) denying Rodriguez’ request judge 284

Likewise, require not a for either 103 does conviction cannot be con felony mur felony-murder conspiracy first-de murder or to commit and victed for both the mur are aggravating for those factors gree murder after deliberation der before Glover, People Rather, single victim. See the rele of a the statute defines der found. (Colo.1995); People v. aggravating “[t]he P.2d factors as follows: vant (Colo.1983); Lowe, agreement P.2d 1269-71 an party has been a defendant part see also XV. of which person kill in furtherance another infra killed;” intentionally and person a has been brief, particularly in Throughout his and 1, 2, or 3 committed a class defendant “[t]he 13, Rodriguez argues that the vacation Issue and, felony in of in furtherance the course or vaca duplicative the convictions mandates of therefrom, flight he of such or immediate because “[t]he his death sentence tion of person intentionally of a the death caused by the is tainted consideration death verdict § participants.”55 16- other than one illegal itself illegal convictions and is of 103(6)(e) Further, (g). in Instruction 96; Rodriguez’ 11— Opening Brief at unreliable.” jury as trial court instructed the No. 578, 108 Mississippi, 486 U.S. see Johnson v. follows: (1988) (holding 100 L.Ed.2d S.Ct. capital Eighth alleged aggravating violates the factors

that a sentencer These seven you may by considering only aggravating a conviction factors are the Amendment unconstitutional). as in later reversed consider this case. which is you fact have found Mr. Rodri- The part opinion, I of this As in stated in the guez guilty of the crime of murder statutory aggrava- sentencing jury six- found degree aggravating is not an factor. first case, § 16- ting to this see factors relevant by Except required aggravating [the (1986):(1) 11-103(6), committing 8A C.R.S. ], 11—103(6)(g) the fact of section factor felony of a sentence murder while under 16— guilty Mr. you have found (2) intentionally killing per- a imprisonment; aggravating is an fac- of other crimes anyone kidnapped by by him or associat- son tor. (3) him; intentionally killing person a ed with (4) kill; agreement in furtherance of an Thus, R., jury specifical- v. 4 at 777. was intentionally person of in causing the death a con- ly instructed not consider felony in or furtherance a factors, the course or jury aggravating victions as (5) therefrom; killing flight in his immediate instruc- presumed to have followed those heinous, depraved or especially in an cruel Corp., Armentrout v. FMC tions. See (6) manner; (civil for committing (Colo.1992) murder holding P.2d case preventing a lawful avoiding same). or purpose prosecution. v. 4 at 746- or arrest after the felo Even the vacation of conviction, Rodriguez meets ny murder requirements aggravating factor found supporting the

The evidence 11—103(6)(g).Rodriguez stands supports two of the section convictions also vacated 16— (1) assault, first-degree sexual sec jury: convicted aggravating factors found aggravated ond-degree kidnapping, and rob intentionally killing person in furtherance a kill, 16-ll-103(6)(e); bery. Rodriguez of § convicted When agreement an murder, they necessarily (2) felony first-degree intentionally causing death of intentionally caused his found that of or in furtherance of person in the course of, therefrom, in the course furtherance flight victim’s death felony in the immediate or of, However, flight from felonies. 16—11— or in one of these 11—103(6)(g). section § 16— 18-3-102(l)(b). § statutory language largely sexual assault on child.” tracks stat- 55. This aggravating encompasses statutory felony Compare factor which defines murder. ute 02(l)(b), intentionally in the 16-11-103(6)(g) murder committed § § with 18—3—X of, of, However, (1978). flight felony or from course furtherance murder stat- C.R.S. Thus, 1, 2, felony. 103(6)(g). § or predicate felony class to the commission ute limits the 16-11— "arson, aggravating robbery, appropriately could find the attempted commission of even where it cannot convict the factor to exist burglary, kidnapping, sexual assault in first felony felony murder. degree defendant ... or a class 3 or second Glover, juries’ Both the conviction for murder after deliber the verdicts.” 893 P.2d at felony Although ation and the conviction for conspiracies murder the three constitutionally were The fact pun obtained. that which was convicted are each constitutionally 18-2-201(5), see felony, § both convictions cannot stand ishable as a class 5 require (1978), not jury’s does nullification of the 8 C.R.S. retention of the conviction finding supported felony which conspiracy likely the murder for to commit murder would aggravating conviction and the produce longest factor. the sentence to the due greater applicability aggravating fac Johnson, This situation from differs tors found in section 16-11-103. 584-90,108 486 U.S. at S.Ct. at 1985-89. Johnson, capital might the Mississippi, Clemons v. sentencer have 494 U.S. relied, part, upon 1441,108 prior felony (1990), a conviction S.Ct. and Zant L.Ed.2d 725 Stephens, ob- unconstitutionally which derived from an 462 U.S. 103 S.Ct. Supreme tained (1983), confession. The Court support held L.Ed.2d 235 do not argu- the that, prosecution even if argued Rodriguez’ the had not ment that death sentence must be sentence, in support the conviction of a death set aside due to the vacation his convic- murder, possibility felony “there be a jury’s would the conspiracy tions to com- petitioner belief that been a second-degree kidnapping, had convicted of mit conspira- prior felony cy would be aggravated decisive in the choice to commit motor vehicle theft. between a life inapposite sentence and a death sen- These cases are because both (citation 586,108 tence.” Id. at at imposed by S.Ct. cases dealt a death with sentence omitted). quotation jury constitutionally and internal marks upon that had relied Johnson, However, statutory aggravating conviction which invalid factor. See Clemons, 742-43, sentencing considered was constitu- 494 U.S. at 110 S.Ct. at tionally first, (jury aggravating unsound for two reasons: it 1444-45 upon relied confession; upon involuntary was based an “especially circumstance that the murder was and, second, heinous, cruel,” the defendant was unconstitu- atrocious or which Unit- tionally Id. right appeal. denied his Supreme ed States Court determined was contrast, vague); Stephens, unconstitutionally 108 S.Ct. 1984-85. Rod- 885-87, riguez’ felony (jury conviction for murder was 103 S.Ct. at 2747-49 relied defective upon aggravating and would stand had he not been circumstance that history convicted of murder after deliberation for the defendant had “substantial of seri- convictions,” same crime. criminal ous assaultive which Supreme Georgia Court invalidated as Likewise, appropri could contrast, unconstitutionally By vague). ately aggravating consider the factor found aggravating factors at issue here are neither 11—103(6)(e): intentionally in section com 16— per supported by unconstitutional se nor evi- mitting pursuant agreement a murder to an unconstitutionally dence obtained or admit- Rodriguez’ so. conspira to do conviction for Rodriguez’ ted. three vacated convictions cy only conspiracy to commit murder unconstitutionally were not entered or ob- conviction to the relevant determination only tained are vacated because their See aggravating § factors. 16—11— duplicity. 103(6).56 appropriately up district Rodriguez’ conspiracy Accordingly, held conviction for we need not vacate vacating commit murder while the other two death sentence due to the vaca Am.R., murder, conspiracy convictions. felony v. 9 at tion his convictions for conspiracy second-degree be kidnap 2235-36. When conviction must vacated to commit duplicative, ping, conspiracy aggravated commit district court should “se pro- support vehicle theft. The evidence lect[ ] combination offenses motor longest ing the most convictions and the both the vacated convictions and the chal ducéis] aggravating lenged properly to maximize the effect of factors was be sentences order convictions, below, alone, standing underlying 56. As discussed the facts those would not con- conspiracy are to the aggravating other capital convictions relevant statutory stitute factors. sentencer, 11—103(l)(b), § see but 16— necessarily in felony § jury. proof of the murder sentencing 16—11— fore the See required 103(l)(b) very for elements (allowing capital sentencer to cludes the same felony. People, 692 underlying Callis v. ... the court consider evidence “[a]ll (Colo.1984); crime, People v. 1054-55 the nature of the P.2d relevant to deems (Colo. Bartowsheski, 245-47 presented in the 661 P.2d including ... evidence trial”). 1983). Although dis guilt phase of the from handling of this case is far trict court’s 143, Rodriguez contends that his In Issue

ideal, duplica- earlier vacate its failure to underlying merge for felonies convictions aggrava neither the tive convictions affected felony murder. his conviction for into ting jury applied nor the factors which Rodri- light district court’s vacation of of the resultant sentence of death. and affir- guez’ felony murder conviction our IX(A) part opinion, this we remand vacation, is rendered Issue 143 mance first-degree sexual Rodriguez’ conviction for supra part See XIV. moot. felony to the district assault as a class 144, Rodriguez argues that In Issue judgment court with directions vacate first-degree conviction his sexual assault judgment and sentence and enter second-degree kidnapping merged into his the lesser included offense sentence for of the essential ele “[o]ne conviction because felony. a first-degree assault as class sexual kidnapping alle degree of the second ments also does not conclude that remand We sexually was gation ... was that the victim Rodriguez’ for reasons affect death sentence Rodriguez’ Opening Brief at 393. assaulted.” analogous to those stated above. kidnapping for have held that convictions We merge. not See for sexual assault do XV Henderson, (holding that 810 P.2d at 1063-64 Merger apply sexual assault merger did not because 143, 144, 145, Rodriguez In Issues not lesser included offense second- was a assault). argues should involving that various his convictions kidnapping sexual degree together. We conclude that these “merge” Rodriguez’ convictions for We conclude that arguments kidnapping are meritless. second-degree and for first-de that, merge gree do not sexual assault can be defendant convicted accordingly, 144 meritless. Issue is arising single multiple out of a offenses 18-1-408, Rodriguez argues that his § In Issue 8B C.R.S. transaction. See murder, (1986). However, first-degree first-de- con convictions for a cannot be defendant assault, second-degree gree kid- which is a lesser included sexual of an offense victed merge his conviction for napping he con all into of which is offense of another crime Henderson, aggravated Id.; first-degree motor vehicle theft People see v. victed. (Colo.1991). predicate those convictions were “el- “A lesser of because P.2d aggravated motor ve- greater first-degree a offense ements” of is included within fense Jeopardy ele theft and because the Double of the essential hicle when the establishment and Colorado necessarily es Clauses in United States greater offense ments of the multiple prohibit punishments required prove Constitutions all the elements tablishes or offenses. U.S. People for the same included See v. Nhan Dao the lesser offense.” (as (Colo.1984). applied to the states Van, If Const. Amend. V 681 P.2d XIV, 1); § Colo. through Const. Amend. greater of U.S. convicted of both defendant is Const, II, § offense, charged, art. 18. As the con and a lesser included fense first-degree aggravated motor re conviction “merge.” Merger Colorado victions required felony as a class 4 vehicle theft comparison of the elements quires statutes, pre “[u]se[d] find that applicable not of evidence Henderson, of a crime motor vеhicle the commission See on those elements. sented § 18-4- a traffic offense.” example, a defendant other than 1063. For 810 P.2d at R., 409(2)(d), (1978); 1 at Both v. felony murder 8 C.R.S. convicted both cannot be guilt phase in- information and the felony underlying causal because and of the predicate If, struction stated the crime Rodriguez argues, as either his convictions for murder, first-degree first-degree as- greater degree merged sexual crimes of into his sault, second-degree R., kidnapping. theft, v. 1 aggravated conviction for motor vehicle 3; anomalous, 3 at only the result be would not but

absurd. Such a result favored. See (Colo. Higgins People, this, In case such as where a 1994); 18-l-102(l)(c), § see also 8B C.R.S. multiple defendant receives sentences in a (1986) (stating purpose that one Colo the trial, single guar criminal the constitutional rado Criminal is “[t]o Code differentiate on against jeopardy “designed antee is double grounds reasonable mi between serious and ensure that sentencing the discretion of added)); (emphasis § nor offenses” 18—1— by courts is confined to the limits established 102.5(l)(a) (stating purpose that another Johnson, legislature.” the v. Ohio 467 U.S. punish the Code is a “[t]o convicted offender 499, 493, 2536, 2540-41, 104 S.Ct. 81 L.Ed.2d by imposition assuring the of a sentence he (1984); Thomas, 425 see Jones 491 U.S. in deserves relation to the seriousness his 376, 381, 2522, 2525-26, 109 S.Ct. 105 offense”). Jeopardy “[N]either the Double (1989). employ 322 L.Ed.2d We an “identical any nor provision Clause other constitutional analysis ... to determine an whether offense provide unjustified exists windfalls.” purposes is the same or for lesser included Thomas, 387, at U.S. S.Ct. at 2529. jeopardy both merger,” double Henderson, 1061, at “may prop 810 P.2d 18-1-408(5) We conclude that section does erly jeopardy analysis look to double for require not convictions Moore, 840, guidance.” People v. 877 P.2d First, merge. the motor vehicle theft is an (Colo.1994). purpose “The is to ensure against property offense under- whereas the exceed, sentencing by courts do not the lying against person. felonies are offenses a punishments, multiple device of limits Thus, Moore, as in the crimes have different prescribed by legislative gov branch of objects Moore, victims. P.2d at 845. ernment, in power which lies the substantive Second, above, as discussed this situation is prescribe punishments.” to define crimes analogous felony not to that of murder. See Thomas, 491 U.S. at 109 S.Ct. at 2525- Merger provide in id. this case would Rodri- Thus, our task is to construe section 18- “unjustified ],” guez with an see windfall 1-408(5) essentially and “is one of [determin Thomas, at 109 S.Ct. at Johnson, ing] legislative intent.” at U.S. and, accordingly, merger apply. does not 499, 104 S.Ct. at 2541. legally four stands convicted of all crimes.

Rodriguez’ argument does not anal

ogize requiring merger felony underlying conviction for the causal XVI felony for into the conviction murder. Rulings Miscellaneous Postconviction murder, felony underlying offenses are felony less serious than murder itself. See id. at need not 845. Such be case with 2,1991, theft, January

aggravated motor vehicle nor is it On filed 35(b) put, Rodriguez’ a motion for sen Simply case here. convic Crim.P. reduction of Am.R., murder, tence. first-degree first-degree tions for 788-808. On assault, day, granted same the district Rodri second-degree kidnapping sexual court guez February until are “lesser” an extension not offenses than offense 35(b) but, rather, aggravated file an amended Crim.P. motion. Id. at motor vehicle theft February 1991, Rodriguez 780. On filed significantly are more serious. See id. 35(b) and, such, motion, analysis an amended on As re Crim.P. 845-46. a different is 21, 1991, February quired employed than that this court district court denied Moore, Bartowsheski, 15,16, motion. 823. In 661 P.2d at 235. See Id. at Issues 18, Rodriguez challenges district court’s 35(b) 35(b) motion, court noted guez’ Crim.P. denial of his Crim.P. motion.57 in the motion that the information contained avail- relating Rodriguez’ background was sentencing jury at the trial and able to the 15, Rodriguez contends that the In Issue supplied information Crim.P. that the hearing court’s to conduct district failure 35(b) to the motion which was available 35(b) re- motion constitutes on his Crim.P. warrant a reduction sentencing did not nor- concedes that versible error. Am.R., v. 4 at 823. Issue sentence. hearing mally the court need not conduct Rodriguez contends that district 35(b) that, motion, but asserts a Crim.P. refusing reasons erred consider defendant, he enti- capital because he is available at reducing sentence which were his Opening Brief hearing. Rodriguez’ tled to penalty phase. at 112. 35(b) seeking relief postconviction reviewing A defendant a In Crim.P. to a pursuant motion, 35 is entitled to Crim.P. all court must consider relevant the mo- evidentiary hearing “unless the prompt affect its material factors which could tion, clearly sentence, record establish the files and modify a decision to defendant’s presented in allegations the the defen- including known at new evidence and facts merit and do not motion are without original imposed. dant’s was the time the sentence People 55, v. 53, relief.” posteonviction warrant Spann People, v. 193 561 P.2d Colo. 497, 499, 1312, (1977). P.2d Trujillo, 1268, 190 Colo. 549 exer 1269 court must then (citation (1976) quotation internal deciding whether to its cise discretion omitted); and, White Denver Dist. modify marks see previously imposed a sentence (Colo.1988). 632, Court, discretion, such its deci absent an abuse of sion will not be disturbed review. Id. Here, court determined that the district Here, properly court exercised its district a for relief did not the facts asserted as basis pri stating that it focus discretion would a in sentence. warrant reduction sen marily on evidence not available only that his status as offers a bare assertion Am.R., tencing The mo trial. v. 3 690. hearing capital mandates defendant jury at tion evidence available to the included identify any specific which show to facts fails phase district court stat penalty and the in sen- a reduction that he was entitled to it the entire motion before ed that examined Accordingly, uphold the district tence! we Am.R., v. 4 at 823. denying it. hearing. to conduct court’s refusal to show that the district court confined fails not available its review to evidence that was and, accordingly, sentencing, orig- Rodriguеz’ filing of either his Prior reject we Issue 16. 35(b) motion, the Crim.P. inal or amended “primary con- that its district court stated proceeding would be cern” a Crim.P. Rodriguez contends the district files Rodriguez’ “changes in Mr. circum-

with copy Rodriguez’ Crim.P. sentencing with did not contain a trial and stances since the 35(b) the court the mo- reasonably motion when denied available not then information 21, February tion on 1991.58 Issue diligence.” Am. through exercise of due court did not have “[t]he states: denying Rodri- 690. In its order v. 3 at 243, 247-48, Accordingly, Malacara, propriety we ad of the sentence. People 199 Colo. (1980), we held that a P.2d 1302-03 dress these issues. 35(b) Crim.P. appealing a denial of a defendant right has a reduction of sentence motion for appellate 28, 1994, Rodriguez filed a 58. On December propriety sentenc review of Missing “Notice of Additional document entitled right review of the ing proceeding, has no but Record,” copy which included a Parts Here, propriety Issues the sentence. 35(b) motion reduction his amended Crim.P. proceeding challenge propriety of the and in which the district Febru- filed with the district court on of sentence Rodriguez' court denied 35(b) challenge ary do motion and not Crim.P. time, that motion before it at that and it did not were relevant to the determination of his not exercise appropriately postconviction its discretion be- motions. it arguments

cause did not know what the Rodriguez also contends that the district support and evidence in of the motion were.” hearings court’s refusal conduct on these Rodriguez’ Opening Brief at 118. motions error. constitutes reversible supports record the district court’s determi February 1994, order, In its Rodriguez’ allege nation that motions did specifically district court Rodriguez’ denied hearing, facts sufficient warrant a we motion for reconsideration sentence of Trujillo, find no error. See 190 Colo. at 11, 1994, February and stated that it had 549 P.2d at 1313-14. Am.R., examined the motion. 4v. at 823. The district court’s order shows that it re argu

viewed motion and considered C refusing ments contained therein in to reduce Rodriguez’ Accordingly, sentence. we con 12, Rodriguez In Issue asserts that alleged clude that the absence the record district denial his court’s of motion to strike 35(b) amended Crim.P. motion penalty appoint special pros- the death constitutes harmless error. requires ecutor that his death sentence be

vacated. We conclude that the district court properly exercised its discretion. B 17, 1994, Rodriguez March On filed a “Mo- collectively In Issues 17 and Penalty, Ap- tion to Strike Death for that erroneously claims the district court de- Prosecutor, pointment Special aof for and nied him in investigation assistance and Appropriate Additional Relief’ based on a preparation of his Crim.P. 35 Spe- motions. newspaper by article written former Colora- cifically, he contests district court’s denial do Lamm Governor Richard which criticized (1) his motions for release of records relat- judiciary for its failure to enforce the see, ing background upbringing, to his and R., penalty. death 1v. at 261-272. The (2) Am.R., 778; e.g., v. 4 at his motions Rodriguez’ example article used case an relating investigative expenses to which he protracted length penalty litiga- of death requested the incur to state to research his Supreme tion and criticized certain Colorado See, Am.R., e.g., v. childhood. 3 at 679. Our n justices as Court well as certain district court of the review record reveals no error. judges based on their involvement Rodri- motion, Rodriguez’ In guez’ motions for Rodriguez alleged release case. In his records, requested relating prosecutor Craig he information that a Silverman served as already pre primary to his childhood that had been source for Lamm’s and that article penalty phase attempt by prosecution at the sented of trial. Fur the article anwas thermore, Rodriguez’ judiciary delays regarding motions to incur inves to intimidate the tigative expenses Rodriguez’ failed establish either case. Id. also requested prosecution’s attempts that the funds would used to claimed that the be overt gather any judiciary mitigating irreparably new evidence or to to influence the tainted hoped process what legal indicate evidence defense counsel the entire that necessitated by investigation. According to uncover such his death sentence be vacated. at 261-62. Id. ly, adequate hearing arguments, the district court an had basis After counsel’s the dis- upon Rodriguez’ Rodriguez’ which to conclude that mo trict court denied motion.59 sought tions cumulative information and 67 at 18-22. motion, denying Rodriguez’ postconviction pro- court ex- before district court pressed delays in concerns over case. ceedings years, for three we conclude that over recog- claims attempts the district court’s regarding the district statements the de- court’s explain delays in nition and his case lay proceedings were accurate and did not demonstrates the court’s submission to intim- alleged any to the intimi- reflect submission by pressure idation and caused Lamm’s article. dation. Rodriguez' Given the fact that case had been continuing prose (1986) attorney 20-1-107, from provides district 8B C.R.S Section case). In his motion cute that defendant’s attorney or is interested the district “[i]f court, Rodri argument to the district ease counsel employed as has been prosecu defend, that the guez failed to demonstrate duty prosecute or is

which it his deny him would continued involvement tion’s special prosecu- a may appoint ... the court trial, and, accordingly, uphold we Garcia, fair P.2d 801 People v. tor.” denying relief. See court’s order district (Colo.1985), the standard we set forth Court, 275, 279, 180 Colo. Wheeler District disqualify a evaluating a district motion to (1973). 1094, 1096 attorney: a district determination of whether [T]he Rodriguez also contends disquali- attorney should and his staff be hearing violat of his motion without a denial the discre- largely fied a matter within may rule on process of court ed due law. court court. The trial tion of the district con hearing if the facts without a motion disqualification whether should consider a suffi motion fail to establish in the tained reasonably necessary to insure appears Trujillo, relief. 190 Colo. cient basis for fact-finding process, the of the integrity district P.2d at 1314. The trial, of fairness of appearance or fairness hearing to conduct a based properly refused orderly or efficient administration Rodriguez’ motion on its determination in the justice, public trust or confidence basis for dis not establish sufficient did justice system. goal of the criminal and, accordingly, prosecution, qualifying the shape remedy which court should be no abuse discretion. we find parties to the and the will assure fairness judicial process. Among integrity of the D to be considered the relevant factors that he Rodriguez contends nature, In Issue are the relevance the court right counsel due to the his was denied necessity testimony, size attorney-client rela- obstruction state’s attor- degree integration of the district of Rodriguez motions tionship. filed numerous staff, degree ney’s to which the and the concerning condi- the with the district testimony contested. is surrounding imprisonment and his his tions (citations quotation and internal at Id. 806-07 confidentially with inability to communicate omitted). marks attorney. Rodriguez’ Opening Brief his See newly hearing on At the discovered that the district at He also asserts 100-112. 17, 1994, in Silverman on March evidence of these motions without court’s denial that former Gover the district court formed error. See id. hearing constitutes reversible his the article at issue on nor Lamm wrote Rodriguez not is entitled We conclude that initiative, pressure influence or without own any relief. any informa prosecution, and that from the manage supervision matter provided Lamm was a Silverman tion Am.R., procedures of correc ment of the internal v. 67 at 16-17. We public record. discretion of institutions is within the expressed his tional that Lamm’s article conclude subject not institutional officials is regarding propriety personal beliefs scrutiny exceptional circum judicial absent judiciary and not by the did taken actions Heggie, 362 See Johnson v. held an inter stances. prosecution that the establish (D.Colo.1973). 851, denying F.Supp. 853 apart profes its Rodriguez’ from in case est motions, Rodriguez’ numerous the dis one upholding the law. responsibility of sional that, going “I’m Court, 159, properly held trict court 189 Colo. People v. District en (1975) law 887, to allow the custodian and 162, (holding that continue P.2d 889 ap authorities to determine forcement contained political advertisement which paid procedures for the confinement propriate attor indicating a that district belief editorial R., [Rodriguez].” 67 at 24-25. addi prop v. mayor, was for ney, was candidate who tion, district court noted that Colora against named erly prosecuting criminal case had Office al Public Defender’s disqualification of do State warrant did not defendant ready brought Rodriguez, in a civil action the Eleventh rather than Frank killed Lorraine Rodriguez newly on Judicial District behalf and Martelli. At the discovered evidence inmate, hearing, pris Rodriguez death row he alleging another that Chris testified that procedures County prevented and David killed Fremont Martinez Lorraine Martelli Am.R., 44-45, using free and effective contact the in two v. 67 at 72- between knives. below, R., As attorneys. mates and their at 220- 73. discussed Martinez also testi- 21; R., hearing. at see 27-29. The district court fied at repeatedly present concluded the issues 20, Rodriguez In Issue asserts that Rodriguez’ ed in numerous had motions been district refusal to allow him to court’s .call previously litigated in the Eleventh Judicial present witnesses and to evidence to rebut properly it District could review testimony Martinez’ at the March judicial district another court’s action. v. hearing prejudicial constituted error. 220-21; R., 24-26; People at v. 67 see at hearing brought Martinez was Court, Wyse ex rel. v. District Colo. Rodriguez, Rodriguez witness but decid- (1972). 94, 503 P.2d We hold that However, him ed not to call as a witness. properly analyzed the district court and dis prosecution did call Martinez as a wit- posed regarding claims he, ness. Martinez testified that neither alleged right state’s obstruction his Rodriguez, Chris nor Patricia Thomas counsel. at stabbed Lorraine Martelli. Id. 101-102. specifically testify Martinez refused reject Rodriguez’ We also assertion Lorraine Martelli because stabbed that the district court’s denial of these mo being prison. he feared labeled “snitch” hearing tions without constitutes reversible However, prosecution Id. at later error. A to a defendant not entitled hear two called law enforcement officials who tes- ing postconviction on a claim under Crim.P. that, sitting Martinez was motion, tified while clearly 35 if “the the files and record waiting box to be called as a witness allegations presented in establish that hearing, prosecu- March he told motion are merit defendant’s without Craig tor was the Silverman postconviction do not warrant relief.” Tru only person who stabbed Lorraine Martelli. jillo, 190 Colo. P.2d 1313.. 142-44, Id. at 146-148. recognition on its that it Based should not prison matters of intervene administration by Rodriguez’ On cross-examination coun- determination that its had Heher, killing sel Michael Martinez denied previously litigated such claims in the Elev that he cut his Lorraine Martelli and testified District, prop enth the district court Judicial handling hands while the knife which Rodri- erly Rodriguez’ claims found that lacked guez later to kill victim. Id. at 114- used the hearing. not merit and did warrant We cross-examination, request- 15. After Heher to this decision. refuse disturb the him to ed that district court allow call Raymond

Detectives Estrada and Donald XVII testimony regarding to Gabel rebut Martinez’ hands, relationship his the cuts on his with Newly Discovered Evidence Thomas, bloody of Patricia and the condition 22, 20, 149, Rodriguez In Issues as- at his clothes at the time of his аrrest. Id. denying the district court erred in serts that Both had testified at the 150-53. detectives newly new trial on his motion for a based guilt phase Rodriguez’ trial. v. 28 evidence. We conclude that each discovered 111-24, 133-61, at 178-79. The detectives of these issues is meritless. hearing, present were not at the and Heher subpoena he need a for the district court con- indicated that would On March hearing Rodriguez’ physical to which the detec- on claims of the evidence as ducted newly testify. The newly evidence. The dis- tives would Id. district discovered request and declined to con- evidence consisted of letters from denied Heher’s covered hearing in the on basis that it had Rodriguez prison to a inmate Texas tinue Chris he, to adequate upon it which Rodriguez evidence before which Chris stated 292 17, 1994, credibility hearing

assess Martinez’ and to rule on the March warranted disagree. requested relief. We newly the issue discovered evidence. Id. 153-54,158. at (Colo. Gutierrez, People v. 622 P.2d 547 1981), set for evaluat we forth standard The admission of rebuttal testimo newly ing a motion for a new trial based on ny lies within the discretion the district evidence: discovered subject court and is not to review absent an “To succeed on a motion for a new trial on People, of discretion. v. 160 abuse See Wertz ground, the should show this defendant (1966) (dis Colo. after the that the evidence was discovered cussing testimony same in context of rebuttal trial; and his counsel exer- that defendant trial). The at record shows that possible diligence cised to discover all evi- to intended offer excluded rebuttal wit prior to dence favorable the defendant to testimony purpose impeaching ness trial; during newly that the dis- Am.R., credibility. Martinez’ v. at 155-58. covered evidence is material the issues by supported This conclusion is further Rod involved, merely not cumulative or riguez’ argument appeal on this impeaching; newly and that on retrial the which the court [t]he evidence would not pro- probably discovered evidence would present allow Mr. would have acquittal.” duce an affirmatively specific refuted numerous Scheidt, (quoting People at Id. allegations factual made the State’s wit- (1974)). 20, 22, P.2d Rod Colo. ness about incident to Mr. which led People Estep, P.2d riguez relies on Rodriguez’ and sentence. His conviction denied, (Colo.App.1990), cert. No. 90SC367 credibility would thus have been shown to (Colo. 1990), argues Nov. be nil. completely court relied on its own district Rodriguez’ Opening Brief credibility evaluations of the of witnesses denying Estep, court of his motion. We conclude that the district court appeals reversed the district court’s denial of by refusing did not abusé its discretion motion for a new trial the defendant’s based present Rodriguez to allow rebuttal evidence evidence, newly stating: on discovered trial, impeach Martinez. At his view, In our the determination the char- presented theory support his evidence probably pro- acter of the new evidence to presence of cuts Martinez’ hands on con acquittal in new trial is not to Martinez, duce an be clusively demonstrated that experience based on the court’s Rodriguez, evaluat- killed Lorraine Martelli. credibility ing the of witnesses. Rather rejected theory guilt phase premised and, that determination should be penalty phase, trial returned evidence, developed 17, 1994, whether new as At the March a sentence death. trial, all the when considered with other hearing, testify Martinez did not that a evidence such reasonable newly which could have discovered evidence probably would conclude that there existed materially validity of affected the guilt, a reasonable doubt as to defendant’s and The district court conviction sentence. thereby bring acquittal about and an ver- it had the trial court record before and could dict. sufficiently credibility with assess Martinez’ Rodriguez’ proffered hearing out rebuttal ev 407; Gutierrez, at also 622 P.2d at Id. see merely repeated have idence which would 559-60.

testimony presented at physical and evidence Here, the record contains no evi Accordingly, will not disturb the trial. we complete the court dence that district relied district court’s decision. credibility ly on own evaluation of the of its denying Rodriguez’ Rodriguez that the the witnesses in motion In Issue asserts trial. The court noted that applied an incorrect standard in for new district district court ruling postconviction the standard articulated Gutierrez and on his motion based on evidence, and, 149, Estep its determination of Rodri newly Issue controlled discovered Am.R., v. 67 171. In presented guez’ the at motion. at accor he contends that evidence standard, riguez with de to amply supported by dance that the court first relief is the presented by testimony hearing. Accordingly, that the evidence at termined we Rodriguez trial reject was discovered after and that Issue 149.

Rodriguez his and counsel exercised dili gence prior such discover evidence to and XVIII during the trial. Id. at 171-72. The court newly then assessed whether the discovered Assistance Counsel Ineffective of validity evidence was material to the of Rod Rodriguez’ The district post- court denied riguez’ and conviction sentence consider conviction claims of of ineffective assistance ing credibility factors the which would affect counsel.60 We affirm. of Rodriguez both Martinez and from Chris standpoint juror, aof reasonable not standpoint judicial from the of expe its own assessing Id. rience. at 173-184. David Eisner and Robin Desmond of the credibility Rodriguez, Chris court con rep Colorado State Public Defender’s Office juror sidered how a reasonable would view Rodriguez resented at his initial advisement Rodriguez fact Chris testified after his arrest in 1984. In the district Martelli, he killed Lorraine but also stated granted prosecution’s court motion to major that he could recall other not disqualify public defender’s office due to surrounding leading details events private a conflict of appointed interest and up murder. Id. at 177-82. The court represent Rodriguez. counsel to See Rodri juror also considered how reasonable would Court, guez v. P.2d District Rodriguez view fact that Chris main (Colo.1986) I). I, (Rodriguez at tained his trial that he not kill Lor did we held that could waive conflict- Martelli raine fact that he refused to 705-09, representation, free id. at testify at Rodriguez’ regard trial. Id. With public rep defender’s office then resumed its credibility testimony, of Martinez’ Rodriguez: resentation of After we affirmed juror court how a considered reasonable judgments of conviction and the death being regarded view would Martinez’ fear of penalty People Rodriguez, sentence as a “snitch” the fact had that Martinez (Colo.1990) IV), (Rodriguez P.2d 965 cert. discretionary hearing up parole coming denied, 111 S.Ct. shortly hearing, after the March (1991), Rodriguez L.Ed.2d 789 filed a motion potentially which time he could be released relief, claiming postconviction that he re prison. from Id. 174-77. We conclude ineffective assistance counsel at the ceived applied proper that the district stan phase penalty appeal. of trial and on direct dard for the evaluation of claims hearing Rodriguez’ postcon- At a limited to newly reject discovered evidence and Is viction claims ineffective assistance sue 22. counsel, Rodriguez called four witnesses Heher; appellate testify: for new counsel Michael trial based “Motions Desmond; newly on trial defense discovered evidence are looked counsel Robin inves- Sholl; favor, tigator expert with and a of such a motion will Judith witness denial that, showing not be overturned absent a of clear Clive Heher testified Stafford-Smith.61 Gutierrez, trial, subsequent he discovered abuse discretion.” P.2d evidence physically been 559. The district court’s conclusion that the had and sexu- presented ally trial newly discovered evidence at the abused as a child and that counsel 17, 1994, hearing mitigating March did not entitle Rod failed discover evidence. court, qualified 61. The district court Stafford-Smith as 60. Before the district Richard Hostetler represented Rodriguez expert general, on his claims of ineffec- penalty an on death law in but the tive assistance of counsel. After district expert penalty an not as R„ on Colorado death law. claims, appointed the court court denied these 63 at v. 57-58. represent Rodriguez Kelly V. on this Nora' to regarding appeal ineffective his claims of assis- of counsel. tance 294 84-89,

R., 68, Rodriguez’ it when it denied v. 62 at 93-94. Defense coun- record before attempted question to Heher assistance and commit- sel Hostetler claims of ineffective potentially mitigating refusing to by about this evidence error enter into ted reversible appeal Rodriguez’ the or to demonstrate that trial counsel evidence record on direct adequately investigate testimony appellate that from counsel Heher failed to evidence hear practice in regarding appeal. in the assistance on accordance with standard ineffective R., capital Rodriguez’ v. at dis- cases. 62 91-99. The We address each of claims objec- prosecution’s trict court sustained the turn. testimony Heher’s on the basis that

tions to B Rodriguez’ failure to inform his trial attor- alleged, neys fur- about the abuse foreclosed right to A defendant’s effective investigation subject. ther into the Id. guaranteed by of counsel is assistance testimony, with Heher’s trial accordance Constitutions. United States Colorado she and co- counsel Desmond testified that Const, Const, VI, XIV; amend. Colo. U.S. adequately investi- counsel Eisner failed to II, a § 16. To relief on claim of art. obtain that, gate potential mitigating factors counsel, a defendant ineffective assistance of opinion, presentation her to the of child satisfy adopted by must the United the test allegations in the abuse would have resulted Supreme in Strickland v. Wash States Court imposition of life instead of the sentence 2052, 668, ington, 104 466 S.Ct. 80 U.S. R., v. at penalty. death 65 32-39. Defense (1984). People, 674 Davis v. 871 L.Ed.2d explained no investigator Sholl that she had (Colo.1994) (applying P.2d 772-73 interviewing training formal defendants set forth in constitutional standards Strick concerning physical or child abuse. sexual Garcia, land); People P.2d v. R., had v. at 8-10. Sholl stated that she (Colo.1991) denied, (same), cert. Rodriguez if he asked had been abused (1992). 1121, 112 S.Ct. 117 L.Ed.2d 475 that, negative, after he answered she Strickland, defendant must Under first pressed the issue. “doubted” that she had demonstrate that the acts or omissions of R., Finally, expert at 16-17. witness range professional fell counsel outside view, that, in his testified Stafford-Smith ly competent assistance. 466 U.S. at performance Rodriguez’ fell trial counsel’s making at 2066. In such a deter S.Ct. professionally competent range outside mination, “indulge courts are directed Rodriguez’ constitu- assistance violated presumption strong that counsel’s conduct representation. right to effective tional range falls of reasonable within wide v. 63 at 106-123. is, assistance; professional that the defen that, presumption dant must overcome Applying forth in Strickland the test set circumstances, challenged under ac 668, 104 Washington, 466 U.S. S.Ct. might sound tion be considered trial strate (1984), court denied L.Ed.2d 674 the district (citation at 2065 gy.” Id. S.Ct. 35(e) motion, Rodriguez’ finding that Crim.P. omitted). quotation marks and internal deficient failed demonstrate performance fair assessment of counsel’s “re appellate trial or counsel performance every quires that effort be made eliminate having probability which had reasonable distorting hindsight, to recon effects of Am.R., the result. v. 7 1762-68. affected circumstances of counsel’s chal struct appeal, Rodriguez contends On this conduct, lenged and to evaluate the conduct his following actions dеnied him constitu- perspective from counsel’s time.” Id. right to effective assistance counsel: tional (1) showing failure to discover and addition trial counsel’s abuse; performance prevail mitigating child counsel’s fell below the present evidence of norms, (2) through” ing professional a defendant must trial counsel’s failure “follow illness; affirmatively prove he also suffered mental on evidence (3) prejudice as a result of counsel’s deficient with the function the state’s interference S.Ct. at 2066. performance. also Id. at defense counsel. He contends complete prejudice, “[t]he To defendant must have a establish court did not district

295 probability rectly show that there is a reasonable related to the information the defen that, errors, Rhodes, supplied.” unprofessional but for counsel’s dant has United States (citation (10th 839, Cir.1990) 913 F.2d 844 proceeding result of the would have been omitted), quotation and 694, internal marks cert. at “A different.” Id. 104 S.Ct. at 2068. 1122, denied, 1079, 111 112 S.Ct. probability probability reasonable is a suffi (1991); L.Ed.2d 1184 see United States v. cient to out undermine confidence (10th 994, Cir.1990) Miller, 907 F.2d 998 challenges come.” Id. When a a defendant adequacy (stating “[t]he or reasonable sentence, question death to be asked an attorney’s necessarily ness of actions is assessing prejudice from counsel’s errors conditioned the defendant’s actions or own probability is a “whether there is reasonable inaction”). completely Where counsel fails to that, errors, absent the the sentencer includ any investigation of conduct a client’s back court, ing appellate an to the extent it inde ground or strategy where counsel’s for not reweighs pendently the evidence would have investigating submitting mitigating or such aggravating concluded that the balance of remarkably deficient, evidence is claim for a mitigating and circumstances did not warrant ineffective' assistance counsel will be sus 695, death.” Id. at 104 S.Ct. 2068-69. See, Thomas, e.g., tained. Baxter v. 45 F.3d (11th Cir.) (counsel’s 1501, 1512-15 failure to C investigation which conduct would have un Rodriguez contends that his trial counsel existing long covered records defendant’s performed untimely inadequate an inves- history of mental illness fell outside the tigation potential mitigating evidence professional competence), range of cert de — physical pre- child sexual abuse nied, -, 116 U.S. S.Ct. 133 sentation of such have Aiken, evidence would led (1995); 307 L.Ed.2d Brewer v. jury impose (counsel’s to (7th Cir.1991) life sentence rather than a F.2d 857-59 disagree. death We sentence. complete investigation almost lack of into family history defendant’s mental and as well In order to ascertain whether argue mitigating failure to factors to trial failure present counsel’s to discover and penalty phase amounted to ineffective as mitigating evidence child abuse sistance); Middleton, 849 493-95 F.2d at counsel, constituted ineffective assistance (counsel’s mitigating failure to uncover evi it must be determined whether a reason- illness, physical dence of mental and sexual investigation able have should uncovered abuse, drug child abuse chronicled so, mitigating such If evidence. then court, services, psychiatric, youth family must made determination be whether records, profes prison scope fell outside put failure to before evidence assistance). sionally competent by trial If was a tactical choice counsel. Rodriguez faults trial for counsel so, given strong such a choice must be failing mitigating which to discover evidence correctness, presumption of inqui- and the divulge prior declined to to the ry not], generally at an it [If end.... penalty phase. alleged Trial counsel’s failure must be determined that defendant suf- investigate present mitigating or evidence prejudice to the fered actual due ineffec- ineffective does not constitute assistance tiveness of his trial counsel before relief “when the essential and foundational infor granted. will be required trigger investiga mation such an (11th Dugger, Middleton v. 849 F.2d attor tion is withheld from defendant’s Cir.1988); Strickland, Miller, see 466 U.S. at ney by the himself.” defendant (stating 999; Petsock, that “counsel has Dooley S.Ct. see 816 F.2d F.2d at Cir.) (3d duty investigations to make reasonable (holding “trial 890-91 par make a failing reasonable decision makes ineffective counsel cannot be investigations unnecessary”). neglected ticular raise claims to which his client has attorney’s of an underlying reasonableness decision facts ... supply essential counsel”), forego investigation clairvoyance required of cert. investigation or to limit is not denied, “di potentially mitigating into evidence is U.S. S.Ct.

296 denied, 1031, (1987); Kemp, 106 S.Ct. 135 v. 762 rt.

L.Ed.2d Mitchell ce (1986). 1242, (11th Cir.1985) 89 L.Ed.2d 349 (stating that F.2d 886 in scope of counsel’s reasonableness trial coun Rodriguez contends that depends upon vestigation what infor often investigator of a use of differ sel’s a defense counsel), communicates to mation defendant Rodriguez unreasonable ent race than was denied, 1026, 107 97 cert. U.S. S.Ct. 483 child mitigating that evidence of abuse and (1987). L.Ed.2d 774 likely more disclosed would have been investigator

Rodriguez been of had that, Here, trial, pri- investigator discloses record race. Before defense same Martinez, Hispanic penalty phase, replaced counsel' an or to the both trial Sholl Jose investigator. Rodriguez’ claim whol investigator spe We find Desmond and defense Sholl ly lacking Rodriguez’ in merit. assertion cifically Rodriguez he had asked whether factor in the that race is a determinative Rodriguez and that suffered abuse as child discovery mitigating evi 16-17; preparation and R., v. 63 at v. denied abuse. speculation, Rodriguez pure and dence addition, 65 defense counsel con at 35. failing for to cannot blame his counsel discov comprehensive investigation Rod ducted he er abuse that himself evidence of child riguez’ including interviewing background, prior to withheld trial. family his members and ob and history taining Rodriguez’ in the records assuming that trial counsel Even trial, Department Corrections. At failing to assistance rendered ineffective presented the results of their back defense abuse, Rodriguez’ child discover evidence ground investigation in a document entitled Rodriguez has failed to demonstrate actual Rodriguez.” “A History of Frank See Life prejudice. circumstances Given brutal IV, Nothing surrounding the murder of Lorraine Martelli investigation led to their trial counsel believe overwhelming aggrava evidence of and physical had and suffered persuad against Rodriguez,62we are not tion child conclude that Rodri sexual abuse. We present the ed that trial counsel’s failure to guez’ trial counsel conducted a reasonable proposed mitigating child abuse evidence of potentially mitigating investigation into evi materially imposition of Rodri affected affirmative denials dence guez’ death Andrews v. Col sentence. See fur that he suffered child abuse foreclosed (5th Cir.1994) lins, (stating 21 624 F.3d subject. investigation ther into the that, light stood of evidence defendant (counsel’s Rhodes, 913 F.2d at 844-45 failure directly victim and shot him in the over independent investigation into to conduct forehead and that defendant altered bullet history did constitute client’s criminal impact, cause more severe devastation on where client failed to ineffective assistance prejudice defendant failed show actual suf attorney any investiga give indication that deficiency), alleged cert. fered from counsel’s — Miller, warranted); F.2d at denied, -, tion was U.S. S.Ct. (counsel’s investigate (1995); Blackburn, failure 998-99 L.Ed.2d 790 Glass (5th Cir.1986) mental illness (holding discover evidence client’s 1170-71 F.2d assistance be does not amount ineffective would not have rendered problems mitigating client revealed his cause never different had evidence verdict counsel); Wainwright, 772 F.2d Funchess were cal been offered because murders (11th Cir.1985) (defense counsel was culated and and the victims suf cold-blooded investigate failing anguish evi not ineffective for fered severe mental both before denied, murders), during the because defendant cert. U.S. dence of mental illness (1987). any psychological problems), 95 L.Ed.2d 824 counsel of S.Ct. never told that, Rodriguez deliberately Lor- presented when murdered at trial established that 62. Evidence Martelli, aggravated parole anally raped Rodriguez vaginally Martelli, Lorraine he was on raine robbery, convictions, her, prior felony severely her with had three beat tortured face, his past in the threatened to kill witnesses to her and killed had knife cuts around neck statutory aggra- by stabbing twenty-eight that six her crimes. The found her in cold blood vating beyond phase doubt. penalty factors existed reasonable at the established times. Evidence Wilson, Accordingly, Psycholog we trial sel conclude that counsel’s called Kent director of Court, alleged deficiency investigate in ical the failing to Services for Denver Juvenile present penalty phase. as a the of child did not witness at Wilson evidence abuse rise performed testified to about two evaluations he the level of ineffective assistance coun Rodriguez on in 1973 and in which sel. 1974 he Rodriguez concluded that had an “anti-social R., 254-61; R., personality.” v. 34 at v. 35 at D 12-17. Rodriguez claims that counsel trial ren- that, penal The record reflects the also at by failing dered ineffective assistance to “fol- counsel, ty phase, calling contemplated trial through” present low and to evidence of Rod- Morall, Kathy Rodriguez’ prison psychia Dr. riguez’ Again, disagree. we mental illness. trist, testify regarding pre as a to witness case, capital the decision In to by Rodriguez, scribed taken medications but present ‍​‌​​‌‌‌​​‌​‌​​​‌​​​​​​​​​​‌‌​‌​‌​​‌‌‌‌​‌​‌​‌‌‌‌‌‍ evidence of mental illness is within apparent declined to do when it became so strategic judgment the sound of counsel. that prosecution’s cross-examination Lockhart, 614, See Whitmore 8 F.3d 617 produce could results detrimental to Rodri (8th Cir.1993); Armontrout, Laws v. 863 R., guez’ defense. v. 34 at 145-48. Trial (8th Cir.1988), 1377, F.2d 1387-89 cert. de Rodriguez’ psychiatric prob counsel knew of nied, 1040, 1944, 490 U.S. 109 104 S.Ct. prescribed lems and medications made (1989). attorney L.Ed.2d “An 415 is not judgment presentation an that informed present if, obligated mitigation evidence to testimony such would do harm than more investigation, after reasonable he or she de Strickland, 690-91, good. at 466 U.S. may termines that such evidence do more 2065-67; Dugger, 104 S.Ct. at Smith v. good.” Dugger, harm than Harris v. (11th Cir.1988), denied, F.2d cert. (11th denied, Cir.), F.2d cert. 110 S.Ct. 108 L.Ed.2d U.S. 110 S.Ct. 107 L.Ed.2d 568 (1990); 871 P.2d at Davis (1989); People, see Davis v. any showing failed to make at (Colo.1994) (“[W]hen with overwhelm faced postconviction hearing he suffered circumstances, ing aggravating trial counsel prejudice alleged from trial actual counsel’s may reasonably testimony conclude that the present failure to evidence of mental illness. would be certain character witnesses Accordingly, we conclude that trial counsel defense.”). Laws, help little to professional acted well within bounds of Eighth held that counsel’s failure to Circuit competency deciding present fur- present psychiatric penalty evidence at the Rodriguez’ ther evidence of mental illness. phase capital prosecution of a murder did not amount to ineffective assistance: E easily have concluded that Counsel could present psychological the decision testi- per- Rodriguez contends that trial counsel consequences. mony have would disastrous (1) by: deficiently wrongfully conced- formed could have re- Skillful cross-examination (2) trial; object ing guilt failing at although defendant] vealed that suf- [the proved damaging certain which evidence impairment fered from no mental (3) presenting penalty phase; dam- responsibility for the mur- negate would aging penalty phase. evidence Rodri- committed, he was nonetheless ders he had guez no error. has established maladjusted propensity man with a trial, presented strong prosecution At Such cross-examination could violence. Rodriguez’ guilt. evidence of Patricia Thom- jury against his client. have alienated as, participant kidnapping of Lor- 863 F.2d at 1389. Martelli, Rodriguez raped raine testified R., v. and then killed her. Rodriguez claims that trial counsel Lorraine Martelli R., illness, 208, 210; prosecu- v. 26 at 20. The Rodriguez’ 25 at knew mental but about by Rodri- mitigation. tion also introduced letters written present such evidence failed to Marquez However, guez Margie trial which record reflects that coun a death sen preventing killed focused that he Lorraine Martelli. instead admitted tence). addition, strategy IV, trial counsel’s 794 P.2d at 970. forensic only charge contesting of deliberated serologist presence Martel- confirmed underwear, guilt phase jacket, first-degree murder li’s blood on phase argument their jeans strengthened penalty after his arrest. v. 28 at 193- Rod inequitable be sentence it would Rodriguez re riguez to death Chris when trial, phase guilt of the de At the “[Strategic only a ceived life sentence. Rodriguez’ participation in fense conceded of thorough investigation after made choices leading to Lorraine Martelli’s the events plausible options law facts and relevant death, disputed Rodriguez’ culpability for but Strickland, virtually unchallengeable,” are by first-degree arguing deliberated murder 690, 2066, and, 104 S.Ct. at U.S. Rodriguez that David Martinez and Chris guessing of accordingly, Rodriguez’ second killed the victim. Defense counsel carried support a strategy trial will not counsel’s theory in penalty phase the the form into of counsel. claim of ineffective assistance defense,” “equity arguing an that sentenc of Davis, See, 773; People v. e.g., 871 P.2d at extremely ing Rodriguez be to death would (Colo.1986). Bossert, 998,1010 P.2d inequitable neither David Martinez because that, Rodriguez at the Rodriguez also asserts nor Chris were sentenced failed guilt penalty phases, trial counsel argued also that Rodri and death. The defense ultimately proved object guez Marquez wrote letters to so that to evidence which the However, penalty phase. at the Marquez damaging turn the over to the could letters failed counsel’s attorney Rodriguez and the to show trial district seek reduction of a trial pending her. conduct did not relate to reasonable charges against criminal only contesting the strategy of deliberated strength prosecution’s on the Based the of establishing first-degree charge murder and evidence, counsel could have lost defense penalty phase. “equity defense” at the credibility jury arguing by Rodri with addition, In failed actu- guilt phase. Rodriguez in the to show guez’ innocence Given convictions,63 prior prejudice. prosecution presented a al Rodriguez’ guilty three The charged overwhelming aggravation at the of evidence of verdict on of several abduction, rape, penalty phase. example, For a woman testi- relating to the fenses Rodriguez Rodriguez would have re fied that and Chris murder of Lorraine Martelli 1978, R., mandatory raped v. 34 at impris in a of life and sodomized her sentence sulted (1984 that, assault, 16-13-103, 59-99, following § Rodri- 8 C.R.S. onment. See might guez to kill her so that Supp.). Accordingly, rea stated he wanted trial counsel them, that, sonably light identify she not but that Chris concluded of the could have Rodriguez go. they Rodriguez to let her guilt presented, could not convinced evidence of that, days a fo Id. at 70. man testified ten Rodriguez from life sentence and save Martelli, imposition murder Rod- precluding of before the of Lorraine cused instead on riguez during him in the Lynaugh, shot four times head sentence. See Romero death (5th Cir.1989) 871, attempted robbery. an Id. at 122-127. The (holding that 884 F.2d prosecution also that Rod- argue not to the absurd or informed counsel’s decision robbed, raped, riguez parole when he jury with obvious did not was burden the assistance), R., v. and killed Lorraine Martelli. amount to ineffective cert. de nied, 1311, strength prosecution’s 108 107. Given 110 S.Ct. (1990); Davis, Rodriguez guilt aggravation, P.2d at 769 evidence L.Ed.2d 487 that, but (stating attempt argue demonstrate for counsel’s that “rather than cannot absurd,” object, he would have trial counsel conceded the obvi failure received prosecution’s penalty. life the death strength case and sentence instead of ous beyond previously a reasonable doubt that Rodri- had been convicted of found robbery, second-degree burglary, aggravated guez prior each these been convicted of had second-degree attempt to commit bur- criminal v. 33 at 63-65. felonies. proceeding, glary. At the habitual criminal Finally, Rodriguez contends that rected a recertification of the entire record. presented damaging trial counsel evidence at November and December the dis- phase Rodriguez’ trict penalty regarding crim court delivered record to recertified history, prison, his inal acts of misconduct this court. district court did have attempts escape. per we Again, and his documents contained the recertified error. record the court ceive no when denied postconvietion relating motion to claims penalty phase, At the trial counsel chose ineffective assistance of counsel on October strategy portraying Rodriguez as an it Rodriguez’ remaining or when denied underprivileged youth from a broken home postconviction February claims on betrayed juvenile jus- been who had and March system. tice their efforts to humanize jury, to the now contends de- presented counsel that the state history right personality profile candid life nied him to effective his assistance by failing provide which complete informed the of his counsel to a juvenile adequate as a for prepar- offenses and his violations in record counsel to use in appeal. prison. aggrava- ing Given strength of the his direct evidence, ting trial a counsel mаde reason- Ordinarily, prevail to ineffec on an picture able decision that a of credible claim, of tive assistance counsel a defendant presented could not be without performance was must show that “counsel’s revealing history his extensive with the perfor deficient” that “the deficient justice Thus, system. trial criminal coun- Strickland, prejudiced mance the defense.” strategy sel’s cannot be as either viewed 687, However, 466 104 U.S. at S.Ct. Davis, incompetent prejudicial. or See 871 Leeke, in Perry the United Su v. States 773; Bossert, 722 P.2d at P.2d at preme expressly “direct Court noted that governmental interference defen with the F right dant’s to counsel is a different matter.” Next, Rodriguez argues that the state’s 272, 279, 599, 594, 109 102 488 U.S. S.Ct. provide complete him failure to with a (1989). L.Ed.2d 624 “ The Court stated: adequate preparing ap- record to his use ‘[Ajctual constructive denial assis or of the peal right his to effec- violated constitutional altogether* subject to tance of is not counsel appellate of re- tive assistance counsel. We analysis appro prejudice the kind of that is ject argument. this priate determining of quality whether the lawyer’s performance before a Our examination of the record us itself has been consti 280, following sequence tutionally of On Id. at 109 S.Ct. reveals events. ineffective.” 7, 692, 1993, Strickland, (quoting the district court denied at 600 466 October U.S. 35(c) 2067) added). Rodriguez’ regarding (emphasis P. In Crim. motion 104 S.Ct. at circumstances, showing Subsequent a of ineffective assistance of counsel. these limited ruling prejudice required viola and the district court’s denial of is not to establish a this remaining postconviction right tion Rodriguez’ claims of a defendant’s constitutional 14, 1994, 17, 1994, February of counsel. Id. The Su on and March effective assistance appeal preme with has found a Rodriguez filed a notice of Court violation of Upon right to court. consideration of the notice of constitutional effective assistance any showing prejudice ordered of Rodri- counsel appeal, we that the record without only totally guez’ be filed with this court. On Octo- when counsel was either absent case 20, 1994, prevented assisting altogether to the from we remanded the case ber during pro stage court to and to defendant a critical of the district determine whether Cronic, required ceeding. the record correction or States v. 466 U.S. what extent United 25, 25, 2039, remand, 648, 104 n. 80 Upon the district 659 n. S.Ct. 2047 modification. (1984); see, e.g., material v. Unit that several boxes of L.Ed.2d 657 Geders court found 80, 1330, States, 91, to the record were not transmitted ed 425 U.S. 96 S.Ct. relevant (trial (1976) 1336-37, court appeal the denial 47 L.Ed.2d 592 part as record on 35(e) Rodriguez’ prevented consulting from with his Crim. P. motion and di- defendant 300 appeal.

attorney ability raise issue on during overnight a 17-hour recess counsel’s Rodriguez’ trial); York, Accordingly, during Herring we conclude v. New U.S. 2555-56, claim error does 863-64, vague unsupported 95 S.Ct. (1975) (trial right a of his to effec not establish violation L.Ed.2d 593 court refused argu counsel. closing tive assistance of allow defense counsel make trial); Alaska, in a ments bench Davis v. tangentially also asserts 1105, 1111, L.Ed.2d 94 S.Ct. U.S. on complete record for use the absence (1974) (trial prohibited defense court process rights and appeal violated his due cross-examining prosecution counsel from his mandates reversal of convictions bias); potential Brooks v. Ten witness disagree. death sentence. We nessee, 605, 612-13, 406 U.S. 92 S.Ct. general proposition, As a (trial (1972) 1895-96, court 32 L.Ed.2d 358 defendant is entitled to a record criminal wit required to be first defense defendant complete transcript appeal which includes ness); Ferguson Georgia, 365 U.S. Hardy proceedings trial. 593-96, 756, 768-70, L.Ed.2d 783 S.Ct. States, 277, 279-82, S.Ct. United (trial (1961) prohibited counsel defense 426-28,11 (1964). have L.Ed.2d 331 We conducting of defen from direct examination previously identified standard dant). determining incomplete rec an trial whether inappo The cases cited above are to a trial.64 ord entitles defendant new case, present case. site to (5th Selva, 559 F.2d 1303 States v. United altogether the state of the record did not Cir.1977), provided fol the Fifth Circuit assisting prevent Rodriguez’ counsel from lowing review: standard of appeal. Rodriguez preparation in the of his repre- ... a When criminal defendant is Rodriguez’ a appeal, direct counsel filed On appeal by on counsel other than sented 138-page appendix listing an 102 brief and trial, attorney at the absence of a substan- According, we conclude additional issues. record, significant portion of tial and incompleteness record did not any showing preju- of specific even absent amount to an actual or constructive denial error, to re- dice or is sufficient mandate prejudice pre counsel for would be which appar- The of this rule is versal. wisdom sumed. on represented ent. When a defendant is by attorney appeal who defended the same Thus, his prevail in order to on trial, may properly him at court re- right claim of state interference with prejudice quire counsel to articulate the counsel, Rodriguez effective assistance may from failure to have resulted performance was must show that “counsel’s portion proceedings. of the record perfor “the and that deficient deficient” (footnote Strickland, omitted); prejudiced Id. at 1306 citations mance the defense.” Preciado-Cordobas, However, 687, v. 981 104 S.Ct. 2064. see United States 466 U.S. Cir.1993) (11th 1206, (applying the merely F.2d 1212 asserts that the existence Valdez, record, alone, standard); v. standing de Selva United States incomplete of an (5th denied, Cir.1988), 427, He F.2d 431 cert. nied him effective assistance of counsel. 861 1083, 1539, identify counsel 109 S.Ct. 103 L.Ed.2d attempt makes no how 489 U.S. Renton, (1989); appeal v. 700 deficiently preparing in his 844 United States performed (5th Cir.1983).65 154,157 incomplete prejudiced his F.2d We decline how the record or (Colo. (1994). (b) 642, People § the Act Killpack, U.S.C. 753 Subsectiоn 793 P.2d 643 v. Anderson, 293, part: provides in People relevant App.1990), v. 837 P.2d denied, (Colo.App.1992), cert. No. 92SC451 every 300 other Each session of the (Colo. 13, 1992), ap appeals Oct. the court of designated by proceeding rule of the or order v. plied the articulated in United States by judges standard recorded court or one of shall be Selva, (5th Cir.1977). Proceedings 559 1303 F.2d un- verbatim.... be recorded (1) proceedings all der this section include court;.... open addressed the criminal cases had cases cited above federal 13-5-127, (1987), analogous placed upon relief 6A C.R.S. a defendant to obtain Section burden Act, provides: Reporter Act and Reporter 28 to the Court of the Court violation

301 adopt rigid approach peal Rodriguez’ turns on whether because of medicated state (Oct. represented by 28, the defendant is new counsel at trial. Tr. Hearing See Sealed 1986). that, appeal hearing, and hold to obtain relief on a Kathy At the Drs. Morall process arising Sundell, due claim incomplete Seymoure from an who treated Rodri- record, always jail, a defendant guez must demon concerning testified the effects of specific prejudice resulting strate Rodriguez’ prescribed from the medication. Id. state of that record. See United States v. transcript contends that Wilson, (9th 1027, Cir.1994); 16 F.3d 1031 28, 1986, hearing October was crucial to the Sierra, 123,125-26 United States v. 981 F.2d district court’s determination of whether trial — (3d denied, Cir.1992), U.S.-, cert. 113 counsel rendered ineffective assistance 2949, (1993); 124 S.Ct. L.Ed.2d 696 United failing through” to “follow on evidence of Gallo, (6th 1504, States v. 763 F.2d 1531 However, mental illness. our examination of Cir.1985), denied, 1017, cert. transcript hearing that the reveals relat- 1200, (1986); S.Ct. 89 L.Ed.2d 314 State solely prescribed ed to the effects that medi- Williams, 101, 402, 227 Conn. 629 A.2d 405- cations had on and did not contain (1993); State, 125, Smith 291 Md. 433 testimony regarding counsel’s decision to fur- Borden, (1981); A.2d 1146-48 State v. investigate present ther a claim of mental (Mo.1980); S.W.2d State v. Ma VII(B) part illness. As discussed of this dera, (1983); 206 Mont. opinion, Rodriguez’ reasonably trial counsel (S.D. Dupris, State v. 373 N.W.2d testify decided not to call Dr. Morall to Helmick, 1985); State v. 169 W.Va. regarding Rodriguez’ trial mental illness af- (1982). Rodriguez’ S.E.2d as bare concluding ter testimony that Dr. Morall’s incomplete sertion that prejudiced record might prejudice Rodriguez’ defense. ability prepare Rodriguez’ counsel’s appeal showing specific does not amount to a Prior to its denial of and, prejudice, accordingly, Rodriguez is not postconviction alleging claims ineffective entitled relief. counsel, assistance of the district court re record, viewed the which a tran included

G script of the bench conference at which defense counsel decided not to call Dr. Next, Rodriguez contends that the district 145-48; supra Morall. at complete court did not have a record of VII(B). part Rodriguez fails to establish Rodriguez’ mental illness when it denied his transcript that the lack aof of the Octo postconviction claim of ineffective assistance. 28, 1986, hearing prejudicially ber affected reject argument. this We the district court’s determination that Rod 7, 1993, the On October district court de- riguez received effective assistance of coun Rodriguez’ postconviction nied claim that Accordingly, sel at trial. we conclude that investigate present failure to counsel’s adequate the district an court had record mitigating evidence of mental illness consti- upon deny Rodriguez’ which to claims of assistance of At tuted ineffective counsel. ineffective assistance of counsel for failure time, that the record did not contain a tran- present Rodriguez’ to evidence of mental 28, 1986, script hearing of a held on October illness. Judge District Peterson and between Connie counsel, Rodriguez’ Rodriguez trial Desmond and Eis- Issue contends that the Judge hearing provide him ner.66 Peterson called the to district court’s failure to with a 28, 1986, prescribed. transcript hearing understand the effects of medi- of the October by Rodriguez right taken to violated to rebut the cation address his constitutional any might ap- prosecution’s arguments penalty phase issue that later be raised on at the reporter, hearing August until

The shorthand on direction of This was not transcribed court, take down in all the shall shorthand prosecution present 1994. The was not at the court, testimony, rulings exceptions of the tak- hearing, and the district court ordered the hear- en, given, proceed- oral instructions and other ing transcript sealed. cause, ings during had the trial of and in may designate. the court such causes as into relating Rodriguez’ dangerousness. future court’s refusal to admit evidence Specifically, Rodriguez alleges appeal on testimo- that: record direct to hear ny appellate regarding from counsel Heher transcript significantly [t]his would have alleged inability his to raise certain issues Rodriguez’ on direct

bolstered Mr. claim demonstrating in- precluded Rodriguez from appeal being permit- prosecution that the appeal. counsel We effective assistance of on arguments ted to make these after argument. reject this they defense counsel that assured so, fooling would be allowed to do thus Rodriguez at- The record reveals presenting defense into not evi- counsel tempted appeal into to enter the record on issues, having dence on those and after specifically proce- to show evidence that the suppressed proposed other evidence con- by im- imposed this court dural limitations issues, cerning such violated Mr. Rodri- paired ability to available Heher’s raise all guez’ rights. appeal. on At issues Id. 9-10. 35(c) hearing, Rodriguez’ Opening Brief at We Crim.P. Hostetler stated: 403-04. reject argument. motion, I are two As indicated there I call species what of ineffective assistance prosecution notified assis- of counsel. There is ineffective that, 11—103(l)(b), pursuant section it 16— tance оf is some counsel caused present intended to evidence relevant to es state a sec- sort of interference. There is character, background, tablish species ond of ineffective assistance of history. R., per- with counsel that deals substandard prosecution in notified the that he did not trying I we formance. What think were rely statutory mitigating tend to fac get subpoenaed into when we the records continuing that “the tor defendant not a Supreme the Colorado was we Court 255; § from society.” threat to Id. at 16—11— see getting species were into that 103(5)(k). first of inef- Rodriguez’ claim that he needed counsel, assistance sort some transcript fective prosecution’s rebut rulings by either on limita- the court time charges dangerousness of future is entitled tions, page you, limitations or what have weight. Furthermore, Rodriguez to little may impacted upon have Mr. Heher’s prevented fails to that he was from establish ability complete file calling testify brief. Dr. Morall or Dr. Sundell to added). penalty phase regarding testimony R., their (emphasis v. 65 at 95-96 28, 1986, hearing. at the October We con try did not enter the unavailability transcript that the clude into record evidence to show that the claims prevent Rodriguez presenting did not from appellate present counsel did were substand mitigating prosecu to rebut evidence ard. district court did not need to admit arguments. tion’s appeal the record on in order determine to imposed by whether limitations

H right prejudiced Rodriguez’ to assis effective 35(c) IV, Rodriguez hearing At the Crim.P. ineffective tance of 794 P.2d counsel. counsel, 971, re- assistance of district court we noted that Heher submitted a appeal,67 Opening quadruple record on hold- “Partial more fused admit the Brief’ than permitted by ing Rodriguez’ length claim did necessitate C.A.R. received not forty beyond decision time a review the record because our several extensions of 31(a), IV, days by in foreclosed allowed C.A.R. and filed Rod ap- riguez’ nearly years claims of assistance based on brief two after the case ineffective alleged inability all Based pellate to raise had been docketed. on its review counsel’s IV, R., recogni appeal. at 10-12. P.2d available issues on v. 62 Here, Rodriguez require- claims that the district tion that meritless attacks on the counsel, Hostetler, Rodriguez' subpoenaed Rodriguez' appeal. relevant to direct District Danford, Clerk of Colorado Su- Mac V. preme hearing Judge Federico Alvarez refused to admit the rec- Court, 35(c) appear at the Crim.P. appeal. at 4-12. ord of v. 62 bring Supreme record Court’s imposed by Appellate XIX merits the Colorado relief, support a claim for Rules will Conclusion adequate district court had an basis to ad Rodriguez’ dress claim of ineffective assis remaining argu- We have reviewed all appellate tance of counsel.68 Rodriguez’ appeal ments of the denial of The district court sustained the 35(c) his Crim.P. motions and conclude objections prosecution’s testimony to Heher’s arguments these do not merit relief or dis- that he rendered ineffective assistance Accordingly, part cussion. we affirm failing appeal. all raise available issues on Rodriguez’ postcon- district court’s denial of ruling.69 find no error in We the court’s viction claims and affirm the denial of his Barnes, 745, 754, Jones v. 103 S.Ct. postconviction claims ineffective assistance (1983), 77 L.Ed.2d 987 the United of counsel. We also affirm the district Supreme appellate States Court held that Rodriguez’ court’s vacation of convictions for every counsel’s failure to include conceivable murder, first-degree felony conspiracy to appeal issue available for does not amount to second-degree kidnapping, commit and con- assistance. The Court ineffective reasoned spiracy aggravated to commit motor vehicle duty that counsel’s to render effective advo subsequent theft and its refusal to vacate cacy requires prioritizing appeal issues on Rodriguez’ sentence of death. We remand upon strength based their so as to avoid first-degree conviction for sexual “burying good arguments ... in a verbal felony assault as a class to the district up strong mound made and weak conten judgment court with directions to vacate 3313; tions.” Id. at S.Ct. see judgment and sentence and enter and sen- (Colo. Galimanis, People v. P.2d (“Effective first-degree tence for the offense of sexual App.1986) advocacy requires the remand, felony. recognition if assault as a class 3 On there are one or two reversal, strong arguments for these should district court shall also set a date for the presented forcefully be and others of less Rodriguez. execution of Frank eliminated.”). merit 35(c) motion, Rodriguez In his Crim.P. as- SCOTT, J., concurs. argument serted the same which the Su- Jones, rejected preme stating: “The Court KIRSHBAUM, J., part concurs in Rodriguez’ attorney failure of Defendant part. dissents in appeal including raise all available issues on guilt phase issues relative to the denied De- LOHR, J., dissents. right fendant his constitutional Am.R., of counsel.” v. 7 effective assistance APPENDIX at 1638. The district court did not need to testimony admitting that he hear from Heher prepar-

failed to raise all available issues APPEAL ISSUES ON RODRIGUEZ’ Accordingly, ing Rodriguez’ appeal. we will OF CLAIMS FOR POSTCONVICTION ruling. court’s not disturb district RELIEF I 1. THE COURT’S RULING DISTRICT AL- THAT MR. HAD RODRIGUEZ proper- that the district court We conclude HAD APPELLATE RE- READY ly Rodriguez’ posteonviction claims denied IN MANY CLAIMS HIS VIEW OF ineffective assistance of counsel. hear testimo- rejecting Rodriguez’ impacted 69. The district court also refused to claim that the limita- 68. upon ability imposed by to render ny Heher’s tions effective Heher that the limitations from assistance, refused to the district court appeal impacted on his abili- this court on direct propriety judgment of the Colo- as to the render rado appeal. ty to rendеr effective assistance rendering Appellate Rules because such 62 at 109-112. judgment as to would force the court to rule properly managed whether this court R„ appeal: 109-112. ING IN CASE VIOLATED WAS THIS POSTCONVICTION MOTIONS PROVISIONS. THOSE ERRONEOUS.* DID THE DEATH PENALTY STATUTE 2. 8. MR. RODRIGUEZ NOT FOR- AND PENALTY IT- THE DEATH FEIT RIGHT TO HIS POSTCON- SELF IS UNCONSTITUTIONAL BY VICTION REVIEW NOT SET FOR THE REASONS FORTH THE CLAIMS RAISING SAME IN MR. RODRIGUEZ’ MOTIONS TO APPEAL. ON DIRECT DEATH PENALTY AND STRIKE 3. THE DISTRICT COURT’S RULING THE PLEAD- ACCOMPANYING THAT THIS COURT DECIDED MATERIALS. INGS AND MR. OF RODRIGUEZ’ SEVERAL DEATH 9. PENALTY COLORADO’S AGAINST HIM IN PEO- CLAIMS n PROVIDE TENNESON, MUST FOR STATUTE PLE V. P.2d 786 AND APPELLATE TRIAL COURT DAVIS, (Colo.1990),AND PEOPLE V. OF PROPORTIONALITY REVIEW (Colo.1990), P.2d 159 IS INCOR- OR IT VIO- DEATH SENTENCES RECT. AND THE CRUEL UNUSU- LATES 4. THE ERRED BY REFUS- COURT PUNISHMENT, PROCESS, AL DUE THE ING GRANT MOTION TO TO EQUAL AND PROTECTION QUALIFY DEATH THE JUDGE. THE FEDERAL AND CLAUSES OF 5. THE DEATH PENALTY IN THIS COLORADO CONSTITUTIONS. THE AND DECI- CASE STATE’S THE TRIAL COURT’S REFUSAL IT ARE SION TO SEEK BASED TO MR. RODRIGUEZ ALLOW TO UPON INVIDIOUS DISCRIMINA- HIS EVIDENCE TO PRESENT OR TION, BY RA- ARE UNGUIDED THE EVEN CONSIDER ISSUES TIONAL, RELEVANT AND CON- PROCESS, VIOLATED THE DUE STANDARDS, AND ARE SISTENT PROTECTION, EQUAL CRUEL IRRATIONAL AND IL- BASED ON PUNISHMENT, AND UNUSUAL LEGAL CRITERIA. PROCESS AND COMPULSORY THE SENTENCE OF DEATH IS OF CONFRONTATION CLAUSES DISPROPORTIONATE TO SEN- THE FEDERAL AND COLORADO IN TENCES IMPOSED OTHER AND THE CONSTITUTIONS DEATH THIS CASES. SENTENCE DEATH STATUTE. AND ARBITRARY IS CAPRICIOUS i0. PHILLIPS WAS JUDGE BIASED THE AND

AND VIOLATES CRUEL MR. RODRIGUEZ AND AGAINST PUNISHMENT AND UNUSUAL MR. RODRIGUEZ’ LAWYERS. THE DUE PROCESS CLAUSES OF n THE REFUSAL COURT’S TO DIS- AND FEDERAL COLORADO CON- THE CLOSE COMMUNICATIONS AND THE DEATH STITUTIONS PETERSON, JUDGES BETWEEN STATUTE. AND PHILLIPS ALVAREZ ABOUT THE APPELLATE REVIEW PUR- CASE,' THE REFUSAL OF THIS 16-11-103(7) § TO C.R.S. SUANT THE TO RULE ON THE COURT BE IN NA- MUST ADVERSARIAL PE- MOTION TO RECUSE JUDGE THE VIO- TERSON, TURE OR STATUTE CHIEF JUDGE PETER- AND THE DUE PROCESS LATES SON’S SIGNIFICANT INVOLVE- CASE, AND CRUEL UNUSUAL PUNISH- THE THE MENT IN AND MENT OF THE FEDER- CLAUSES TO COURT’S REFUSAL HAVE AL AND COLORADO CONSTITU- A DIFFERENT JUDGE FROM DIS- TIONS, AND RIGHT HEAR MR. COLORADO’S TRICT RODRIGUEZ’ CLAUSE; THUS, MOTIONS, THE WERE ALL TO APPEAL PREJUDI- CIAL ERROR. “NON-ADVERSARY” PROCEED- * appeal clarity, Rodriguez' For have renumbered the brief on this contains 150 is- we issues sues, from I to CLI. He XXIII. Arabic. numbered omits IN ON MOTION THE TENCER ITS DECISION THE DENIAL 12. OF 35(B) MOTION, THE WAS PENAL- CRIM.P. THE DEATH TO STRIKE ERRONEOUS. TY, AOF FOR APPOINTMENT PROSECUTOR,AND FOR SPECIAL THE DISTRICT DENIAL 17. COURT’S RE- ADDITIONAL APPROPRIATE ANY MR. OF FOR ASSISTANCE LIEF WITHOUT A HEARING AND RODRIGUEZ IN THE INVESTIGA- AND OF HIS TION PREPARATION FIND- INTELLIGIBLE WITHOUT 35(B) ER- WAS CRIM.P. MOTION ERROR, INGS WAS ESPECIALLY RONEOUS. THE WHERE APOLO- COURT TO GIZED FOR ITS FAILURE DENIAL THE 18. THE OF MOTION THE WAS HURRY PROCESS ALONG FOR RECONSIDERATION BE- AND ERROR ON ITS MERITS THE' WHERE ONE OF ISSUES THE DID NOT CAUSE COURT THE WAS CHARGES VITRIOLIC THE IT HAVE BEFORE MOTION AGAINST IT AND THE SU- MADE IT RULED. WHEN PREME THIS COURT ABOUT THE DENIED IN MEDIA BY EX-GOV- 19. MR. RODRIGUEZ WAS CASE PROCESS, DUE EFFECTIVE AS- LAMM AND THE PROSE- ERNOR COUNSEL, EQUAL SISTANCE OF THE CUTION. MOTION SHOULD PROTECTION, COMPULSORY BEEN HAVE GRANTED DESPITE AND RIGHTS UN- PROCESS HIS DENIAL OF A THE HEARING. 35(C) AND THE CRU- DER CRIM.P. THE ILLEGALITY THE FIRST 13. OF EL AND UNUSUAL PUNISHMENT AND TWO DEGREE MURDER BY RE- THE COURT’S CLAUSES RE- CONVICTIONS CONSPIRACY HIM WITH FUSAL TO PROVIDE QUIRES THAT THE DEATH SEN- ADEQUATE IN- OUT-OF-STATE BE BASED THEM TENCE UPON FUNDS, RE- ITS VESTIGATION THE MOTOR VEHI- VACATED. HIM FUSAL TO ALLOW ACCESS THEFT AND OF VIO- CLE “CRIME RECORDS, AND TO ESSENTIAL CONVICTIONS, AND THE LENCE” REFUSAL ALLOW HEAR- ITS TO DEATH BASED ON SENTENCE ON INGS MOTIONS. THEM, ARE ILLEGAL ALSO TRIAL REFUSAL 20. THE COURT’S THEY ARE BASED ON SINCE TO' ALLOW MR. RODRIGUEZ TO THE MURDER CONVICTION. THE THE REBUT OF TESTIMONY DENIED 14. MR. RODRIGUEZ WAS AT PROSECUTION’S WITNESS AND THE RIGHT TO COUNSEL ERROR.' THE HEARING WAS AP- HIS OTHER RIGHTS DURING OF THE EFFECT 21. CUMULATIVE AND PEAL POSTCONVICTION BY THE ERRORS COMMITTED THE PROCEEDINGS DUE TO BEFORE, THE DISTRICT COURT OF CONFIDENTIALITY LACK TRIAL AND AND AFTER DURING AND THE STATE’S OBSTRUCTION PRO- DURING POSTCONVICTION RE- THE ATTORNEY-CLIENT OF MR. RODRI- DENIED CEEDINGS' LATIONSHIP. HIS FUNDAMENTAL GUEZ RIGHTS. DENIAL MR. RODRI- 15. THE OF 35(B) MOTION CRIM.P. GUEZ’ AN THE APPLIED INCOR- 22. COURT ER- A HEARING WAS WITHOUT IN RULING ON RECT STANDARD FOR ROR. MR. MOTION RODRIGUEZ’ NEWLY DIS- RELIEF BASED ON REFUS- THE DISTRICT COURT’S 16. EVIDENCE. COVERED ANY REASONS AL TO CONSIDER [OMITTED.] DEATH THE FOR REDUCING WERE OR WHICH SENTENCE TRIAL REFUSAL THE COURT’S PRE- REQUIRE BEEN THAT THE STATE MIGHT HAVE WHICH TO REGARD- PROVIDE TO THE SEN- DISCOVERY ORIGINAL SENTED PROCESS, CONFRONTATION, ING JOSEPH COUNCIL VIOLAT- ED AND RULE 16 AND THE COMPULSORY PROCESS DUE PRO- AND CRUEL UNUSUAL PUNISH- CESS CLAUSES. FEDER- MENT CLAUSES OF THE 25. THE STATE’S RE- FAILURE TO AL AND COLORADO CONSTITU- VEAL THAT THE EXTREMELY AND TIONS CRIM.P. PLEA LENIENT BARGAIN IT AF- TRIAL 29. THE FAILURE OF THE FORDED TO DAVID MARTINEZ THE COURT TO ORDER STATE TO WAS DONE IN ORDER TO OBTAIN PROVIDE MR. WITH RODRIGUEZ THE TESTIMONY OF PATRICIA ORAL STATEMENTS OF PROSE- THOMAS, AND ITS MISREPRE- CUTION WITNESSES VIOLATED SENTATION THAT SUCH WAS PROCESS, THE DUE CONFRON- CASE, NOT THE DENIED MR. TATION, COMPULSORY PROCESS RODRIGUEZ DUE PROCESS OF AND AND CRUEL UNUSUAL AND LAW HIS CONFRONTATION THE PUNISHMENT CLAUSES OF RIGHTS. UNITED AND STATES COLORADO 26. THE UNJUSTIFIABLE FAILURE AND CONSTITUTIONS CRIM.P. 16. THE OF POLICE TO OBTAIN AP- 30. THE COURT’S UNJUSTIFIABLE PARENTLY MATERIAL EX- AND REFUSAL TO GRANT A CONTINU- CULPATORY EVIDENCE FROM IN ANCE ORDER FOR DAVID DAVID MARTINEZ AND PATRI- MARTINEZ BE TO AN AVAIL- CIA THOMAS DENIED MR. ROD- WITNESS, ABLE OR TO ASSIST RIGUEZ HIS RIGHTS UNDER MR. RODRIGUEZ IN OBTAINING PROCESS, THE DUE CONFRON- TRIAL, HIS PRESENCE FOR OR AND AND TATION CRUEL UN- TO ALLOW THE PRESENTATION USUAL PUNISHMENT CLAUSES. OF EVIDENCE OF HIS STATE- THE POLICE REFUSED FOL- TO THE AND MENTS TO POLICE LOW STANDARD PROCEDURES OTHERS THROUGH OTHER THE PATRI- DURING ARREST OF MEANS, VIOLATED MR. RODRI- CIA AND MAR- THOMAS DAVID GUEZ’ RIGHT TO CONFRONTA- TINEZ, AND REFUSED TO COL- TION, COUNSEL, RIGHT TO DUE THAT LECT EVIDENCE AT THE PROCESS, COMPULSORY PRO- THAT SCENE OF ARREST. AND THE AND CESS CRUEL UN- 27. THE STATE’S DESTRUCTION OF USUAL PUNISHMENT CLAUSES. THE EXCULPATORY EVIDENCE 31. MR. DENIED RODRIGUEZ WAS OF THE PHOTOGRAPHS OF PROCESS, HIS RIGHTS TO DUE MARTINEZ, DAVID SHOWING PROCESS, COMPULSORY CON- AND BRUISES CUTS SUSTAINED AND THE FRONTATION PROHI- DURING HIS RAPE AND KILLING BITION OF CRUEL AND UNUSU- VICTIM, OF THE THE VIOLATED AL BY THE PUNISHMENT CONFRONTATION, DUE PRO- A COURT’S REFUSAL TO ALLOW CESS, PROCESS COMPULSORY CONTINUANCE SO THAT MR. AND CRUEL AND UNUSUAL RODRIGUEZ COULD OBTAIN THE THE PUNISHMENT CLAUSES OF AND PRESENCE TESTIMONY OF FEDERAL AND COLORADO CON- CRITICAL, A SUBPOENAED WIT- STITUTIONS AND CRIM.P. 16. AT NESS TRIAL. THE STATE’S DESTRUCTION OF 32. THE NUMEROUS DISCOVERY VI- THE EXCULPATORY EVIDENCE BY THE OLATIONS STATE AND OF THE PHOTOGRAPH OF PATRI- THE TRIAL COURT’S REFUSAL BRUISES, CIA THOMAS’ CAUSED ANY TO IMPOSE SANCTIONS AS BY HER PARTICIPATION IN THE DENIED MR. RESULT RODRI- MURDER, THE VIOLATED DUE GUEZ DUE OF LAW PROCESS NIED HIS FAIR TRIAL HIS MR. RODRIGUEZ MOST AND A AND RIGHTS. FUNDAMENTAL TO CONFRONTATION RIGHTS THE PROHIBITIONS OF AND THE 37. OF PATRICIA TESTIMONY AND UNUSUAL PUNISH- CRUEL THE RESULT THOMAS WAS OF MENT WELL AS RIGHTS AS HIS PROSECUTORIAL MANIFEST THE RULES AND STAT- AND ITS UNDER MISCONDUCT USE MR. RODRIGUEZ DE- GOVERNING DISCOVERY. AGAINST UTES NIED OF HIS DUE PROCESS LAW REFUS- 33. THE SUPREME COURT’S AND UNDER THE HIS RIGHTS MR. AL TO ALLOW RODRIGUEZ CRUEL AND UNUSUAL PUNISH- ADEQUATE AN TO OPPORTUNITY MENT CLAUSES. FILE AND A COM- PREPARE THE ON DE- 38. RESTRICTIONS ADEQUATE BRIEF PLETE AND CROSS-EX- FENSE COUNSEL’S APPEAL DENIED MR. RODRI- ON AND IMPEACH- AMINATION PROCESS, EQUAL DUE GUEZ MENT PATRICIA THOMAS OF PROTECTION, AP- HIS RIGHT TO THE CONFRONTA- VIOLATED PEAL, AND HIS RIGHTS UNDER TION, AND CRUEL UNUSUAL AND THE CRUEL UNUSUAL AND DUE PRO- PUNISHMENT AND PUNISHMENT CLAUSES THE FEDER- CESS OF CLAUSES STATUTES. COLORADO AL AND CONSTITU- COLORADO 34. THE COLORADO SUPREME TIONS. PREFEREN- COURT’S GIVING THE THE 39. OF STATE’S GRANTING TO THE TIAL TREATMENT PROS- RE: IN LIMINE PROPER MOTION AND ITS SUPPORTERS ECUTION OF PATRICIA IMPEACHMENT IN DURING ORAL ARGUMENTS DENIED MR. RODRI- THOMAS CASE, EX- ARRANGING THIS RIGHTS TO GUEZ HIS CON-' MEDIA OF PANDED COVERAGE FRONT, AND CROSS-EXAMINE THOSE ARGUMENTS CONTRARY THE STATE’S EVI- IMPEACH RULES AND TO ITS OWN PROCE- HIM, AND DENCE AGAINST HIS DURES, NAT- WHICH COVERAGE RIGHT PRESENT MITIGATION TO THE FOCUSSED ON URALLY EVIDENCE, ALL THE UNDER PROSECUTION, DENIED MR. U.S. AND COLORADO CONSTITU- PROCESS, A DUE RODRIGUEZ TIONS. TRIBUNAL, A APPEAL FAIR FAIR THE TRIAL COURT’S REFUSAL THE AND RIGHTS UNDER HIS TO PATRICIA THOMAS TO ALLOW AND UNUSUAL PUNISH- CRUEL THE BE WITH IMPEACHED VID- MENT CLAUSES. EOTAPE HER INCONSISTENT OF THAT 35. THE COURT’S RULING DENIED MR. ROD- STATEMENTS CLAIMS CONCERNED SEVERAL TO RIGUEZ RIGHTS CON- HIS OF PROSE- “CREDIBILITY ONLY FRONTATION, COMPULSORY AND THUS CUTION WITNESSES” PROCESS, PROCESS AND A DUE NOT “AVAIL- THAT THEY WERE TRIAL, FAIR AND DEMONSTRAT- ERROR. ABLE” WAS ED A STANDARD BY DOUBLE THE ON SUCH MATTERS. COURT 36. THE ABSOLUTE IMMUNITY ' THE RULING THAT BY THE COURT’S PROTECTION GRANTED CONCERNED IL- SEVERAL CLAIMS THOMAS WAS TO PATRICIA “INADEQUATE FOUNDA- ONLY HER TESTIMONY WAS LEGAL. AND EXHIBITS” THUS TION FOR BY ILLEGAL OBTAINED THUS THAT NOT “AVAIL- THEY WERE HAVE AND SHOULD NOT MEANS ABLE” WAS ERROR. “LI- THE BEEN ALLOWED. LIE” THE TO SUBVERTED 42. THE OF “PROB- CENSE ADMISSION “RELIABILITY” ABILITY” AND PROCESS AND DE- THE TRIAL THE EVIDENCE CONCERNING 46. MR. RODRIGUEZ DENIED WAS MOTIONS, MAKE AND IM- HIS RIGHTS TO HAIRS FIBERS WAS OBJECTIONS AND ON THAT RECORDS PROPER. EVIDENCE WAS PROCEEDINGS, THE TRIAL AND AND MANIFESTLY UNRELIABLE THE DISTRICT DENIAL COURT’S THE THE OUTSIDE SCOPE OF A MAT- OF HEARING ON THESE WITNESS’ AREA OF KNOWL- TERS AND ITS ON FINDINGS EDGE. THERE NOT A WAS SUF- THE ARE ISSUES ERRONEOUS. FICIENT THE FOUNDATION FOR RELIABILITY OF THAT EVI- 47. THE COURT’S REFUSAL TO COM- DENCE, AND IT WAS IN PLY WITH AND FACT BATSON FIELDS MR. COMPLETELY UNRELIABLE. WHEN RODRIGUEZ MADE AN THE OBJECTION TO STATE’S ITS DENIED MR. ADMISSION EXCUSAL OF BLACK VI- JURORS RODRIGUEZ DUE PROCESS OF PROCESS, THE OLATED DUE LAW AND RIGHT A FAIR HIS TO PROTECTION, EQUAL TRIAL BY JURY, TRIAL BY IMPARTIAL AND AND JURY CRUEL AND UNUSU- THE HIS RIGHTS UNDER CRUEL CLAUSES, AL PUNISHMENT AS AND UNUSUAL PUNISHMENT DID THE STATE’S USE OF ITS CLAUSES, THE FEDER- UNDER PEREMPTORY CHALLENGES IN AL AND COLORADO CONSTITU- THAT FASHION. TIONS. 48. THE UNREASONABLE RESTRIC- THE 43. ADMISSION THE OF TIONS PLACED ON DEFENSE IRRELEVANT, STATE’S BASE- COUNSEL’S VOIR DIRE REGARD- LESS EVIDENCE CONCERNING PENALTY, THE ING DEATH AND MARTINEZ HOW DAVID COULD THE ORDER THAT HE COULD THE HAVE OBTAINED TWO CUTS NOT OBJECT TO THE COURT’S ON HIS HANDS VIOLATED THE DIRE, DE- CONDUCTING OF VOIR REQUIR- RULES OF EVIDENCE NIED MR. RODRIGUEZ HIS FOUNDATION, A ING PERSONAL RIGHTS UNDER RULE HIS KNOWLEDGE, AND RELEVANCE A RIGHTS TO FAIR TRIAL BY IM- EVIDENCE, AND FOR CRE 403 JURY, APPEAL, PARTIAL TO TO AND DENIED MR. RODRIGUEZ LAW, DUE PROCESS OF TO DUE PROCESS OF LAW. COUNSEL, BE ABLE TO TO IN- 44. OFFICER BROWN’S TESTIMONY TELLIGENTLY EXERCISE HIS CONCERNING THE “LIKELI- AND PEREMPTORY CAUSE THERE HOOD” OF WHETHER CHALLENGES, AND RIGHTS UN- WAS SEMINAL FLUID ON MR. DER THE AND CRUEL UNUSUAL RODRIGUEZ’ UNDERSHORTS PUNISHMENT CLAUSES. WAS IMPROPERLY ADMITTED. QUALIFICATION THE DEATH 49. OF IT AND WAS IRRELEVANT THE JURY DENIED MR. RODRI- ANY LACKED FOUNDATION OR GUEZ A FAIR TRIAL BY IMPAR- RELIABILITY. ITS ADMISSION JURY, TIAL A JURY DRAWN DENIED MR. ALSO RODRIGUEZ FROM FAIR CROSS-SECTION DUE OF LAW AND PROCESS HIS COMMUNITY, OF THE AND DUE A FAIR BY TO TRIAL IM- RIGHT LAW, PROCESS OF AND HIS PARTIAL JURY. UNDER AND RIGHTS CRUEL UN- USUAL PUNISHMENT CLAUSES 45. THE ADMISSION OF EXHIBITS G- THE AND STATUTES AND 13, G-14, RULES AND G-15 WAS ERROR. GOVERNING JURY SELECTION ADEQUATE THERE WAS NO IN COLORADO. FOR THE EXHIB- FOUNDATION AND THEY IRRELE- ITS WERE THE TRIAL COURT’S REFUSAL JURIES, VANT AND MISLEADING. TO ALLOW TWO ONE TO, BE AFFECTED OR EXPOSED DEATH-QUALIFIED AND ONE BY, IN THE ANY PUBLICITY DEATH-QUALIFIED, DE- NOT CASE, THE DISCUSS NOT TO AN OP- NIED MR. RODRIGUEZ IN THEY WERE INVOLVED CASE MAKE A RECORD TO PORTUNITY ELSE, THE ON WITH ANYONE TO THE MATTERS RELATING IN DAY TRIAL BEFORE FIRST OF DEATH-QUAL- THE EFFECTS OF PROSPECTIVE JURORS THOSE IFICATION. HOME, THE WENT VIOLATED ERRED BY THE TRIAL COURT DE- AND RULES CONTROLLING ANY RECORD THAT ITS ORDER PRO- MR. DUE NIED RODRIGUEZ BY A DEMEANOR OF JUROR’S TRIAL AND A FAIR OF LAW CESS BE SUBMITTED MUST COUNSEL BY IMPARTIAL JURY. THE IN WRITING. TO COURT FAILURE THE TRIAL COURT’S 55. ERRED BY TRIAL THE COURT 52. PRO- FOR CAUSE TO EXCUSE FOR TO EXCUSE REFUSING BE- [R.K.] JUROR SPECTIVE JURORS CAUSE PROSPECTIVE ALIA, CAUSE, HE INTER WAS THAT RODRI- KNEW CHRIS WHO CON- THE ALLEGED AWARE OF HAD BEEN CONVICTED GUEZ RODRIGUEZ, MR. OF FESSION (cid:127) FOR, TO SENTENCED AND/OR MR. AND DENIED WAS ERROR FOR, THE SAME LIFE IN PRISON BY FAIR TRIAL RODRIGUEZ SEVER- THIS INCLUDED CASE. AN IMPARTIAL JURY. AL WHO ACTUALLY SAT JURORS AL- TO THE REFUSAL 56. COURT’S THE THE CASE. ON AS JURORS SEQUES- LOW INDIVIDUAL TO IN- REFUSED COURT ALSO DIRE ON DEATH TERED VOIR AND THOSE JURORS STRUCT DENIED MR. PENALTY ISSUES NOT TO PROSPECTIVE JURORS AND PROCESS DUE RODRIGUEZ THAT INFORMATION DIVULGE BY IMPARTIAL A FAIR TRIAL TO CON- AND NOT TO OTHERS WAS PARTICULAR- JURY. THIS IN THAT INFORMATION SIDER THE INADE- IN LIGHT OF LY SO THE MR. ROD- CASE. DECIDING QUATE AND UNREASONABLE THEREBY DENIED WAS RIGUEZ DEFENSE FOR TIME ALLOWED TRIAL BY IMPARTIAL A FAIR DIRE ON VOIR COUNSEL’S PROCESS OF AND DUE JURY ISSUES. THOSE LAW. VID- REFUSAL TO THE COURT’S 57. FAILURE THE COURT’S 53. TRIAL THE JURY SELECTION EOTAPE JU- THE PROSPECTIVE TO HAVE DENIED MR. RODRI- PROCESS THEIR OATH TO TAKE RORS THE UNDER HIS RIGHTS GUEZ BEFORE THE TRUTH TELL PROCESS, AP- TO RIGHT DUE AND TOLD THEY WERE GIVEN PEAL, AND UNUSUAL CRUEL QUES- THE FILL OUT JURORS TO BY AND TRIAL PUNISHMENT TIONNAIRES, AND ITS COM- MR. RODRI- CLAUSES. JURY MANY TO HAVE PLETE FAILURE AN DEPRIVED OF WAS GUEZ EVER JURORS PROSPECTIVE AD- TO MAKE AN OPPORTUNITY OATH, THEIR VIOLATED TAKE DE- THE EQUATE RECORD ON STATUTE THE CONTROLLING THE PROSPECTIVE MEANOR OF DENIED MR. AND AND RULE JURORS, SINCE ESPECIALLY AND DUE PROCESS RODRIGUEZ HIM THE PREVENTED COURT IMPARTIAL BY A FAIR TRIAL MAKING A CONTEMPORA- FROM THAT ON RECORD JURY. NEOUS ORAL MATTER. FAILURE THE TRIAL COURT’S AND ALLEGA- THE PRO- THE GROUNDS MANY OF ORDER TO IN THE OB- CONTAINED BE TIONS TO NOT JURORS SPECTIVE OBSERVATIONS, AND JECTIONS FUSAL ALLOW THE ACCUSED TO MAKE AN QUASH PANEL AN OPPORTUNITY TO MOTION TO JURY ADEQUATE RECORD OR SHOW- AND MOTION FOR ADDITIONAL THE MANNER ING CONCERNING AND OTHER APPRO- SPECIFIED IN WHICH THE JURY PANEL RELIEF, PRIATE MR. ENTITLE CHOSEN, WAS SELECTED AND TO HAVE THE RODRIGUEZ THE OF INCLUDING DECISIONS DEATH AND CONVIC- SENTENCE THE EX- JURY COMMISSIONER VACATED, THE TIONS AS DOES JURORS, CUSING PROSPECTIVE AL- TRIAL COURT’S FAILURE TO DENIED MR. RODRIGUEZ DUE A HEARING AND THE LOW AND PROCESS OF LAW HIS COURT’S FAILURE TO GRANT A FAIR TRIAL BY IM- RIGHT TO RELIEF. PARTIAL THE JURY. JURY SUM- 59. THE COURT’S REFUSAL TO AND MONING SELECTION PRO- ALLOW DEFENSE COUNSEL IN THIS VIOLATED CESS CASE DIRE TO RE-OPEN VOIR OF THE AND TRIAL DUE PROCESS THE PANEL OF PROSPECTIVE BY THE FED- JURY CLAUSES OF QUESTIONED JURORS FIRST ERAL AND STATE CONSTITU- BY MS. DESMOND WAS PREJU- TIONS, AND THE CONTROLLING THE DICIAL ERROR SINCE STATUTES. DIRE IN- ORIGINAL VOIR WAS 62. MR. RODRIGUEZ DENIED WAS ADEQUATE THAT DUE TO HIS FUNDAMENTAL RIGHTS COUNSEL’S INEXPERIENCE THE TRIAL COURT BECAUSE AND MENTAL AND PHYSICAL EMPLOYED INCONSISTENT STATE. STANDARDS FOR EXCUSING PROSPECTIVE JURORS WHO THE TRIAL 60. COURT’S UNDIS- WERE SUPPOSEDLY UNABLE CLOSED COMMUNICATIONS THE TO FOLLOW LAW BECAUSE WITH JURORS DURING TRIAL VI- THEY WERE TO THE OPPOSED PROCESS, THE OLATED DUE DEATH PENALTY AND THOSE CRUEL AND UNUSUAL PUNISH- WHO WERE UNABLE TO DO SO AND TRIAL BY MENT JURY IN FA- BECAUSE OF SOME BIAS THE FEDERAL AND CLAUSES OF VOR OF THE DEATH PENALTY. COLORADO CONSTITUTIONS AS THE TENDED EX- COURT TO DID THE COURT’S REFUSAL TO CUSE THOSE WHO WERE OP- MR. A ALLOW RODRIGUEZ DEATH POSED TO MORE EASI- HEARING AND RECORD ON AP- LY THAN THOSE PRONE TO PEAL MATTER. ON THIS KILL. ALL 61. MR. RODRIGUEZ ASSERTS 63. THE AND JURY SUMMONING SE- THE IN OF CLAIMS PRESENTED IN LECTION PROCESS THIS QUASH MOTION TO INFOR- HIS THE DUE PRO- CASE VIOLATED MATION, QUASH MOTION TO AND TRIAL BY CESS JURY PANEL, JURY MOTION TO STAY THE FEDERAL AND CLAUSES OF PROCEEDINGS, FOR MOTION AND STATE CONSTITUTIONS HEARING, FILED NOVEMBER THE CONTROLLING STATUTES. 1986. THE DEATH SENTENCE MR. 64. RODRIGUEZ’ RIGHTS UNDER AND CONVICTIONS SHOULD JURY, THE TRIAL BY RIGHT TO BE TO THE ALSO VACATED DUE COUNSEL, AND CRUEL UNUSU- TRIAL INEXCUSABLE COURT’S AL AND PUNISHMENT DUE PRO- FAILURES TO ALLOW HEARINGS OF THE UNITED CESS CLAUSES THE THERE- ON ISSUES RAISED AND STATES COLORADO CONSTI- TUTIONS, IN AND RELIEF AT TO GRANT AND 24 WERE CRIM.P. BY THE TRIAL THE TIME. THE RE- VIOLATED COURT’S BY TRIAL ERRED 71. THE COURT OF TOTAL PRECLUSION COURT’S DENIAL THE CHAL- ITS OF DIRE BY COUN- VOIR DEFENSE [JUROR FOR CAUSE TO LENGE HARDSHIPS, ON CLAIMED SEL BY THE INADE- R.MJ. AND COURT’S DIRE ON CLAIMED VOIR

QUATE BY THE TRIAL ERRED 72. COURT HARDSHIPS. DENIAL OF THE CHAL- ITS [JUROR LENGE FOR CAUSE TO THE EXCLUSION OF DEFENSE 65. R.K.], DIRE FROM VOIR ON COUNSEL THE TRIAL ERRED BY COURT AND CHALLENGE PUBLICITY DENIAL THE ITS OF CHAL- AND THE FOR CAUSE ISSUES [JUROR LENGE FOR CAUSE TO INADE- TRIAL COURT’S OWN K.G.], AND AL- ITS REFUSAL TO DIRE AND IN- VOIR QUATE COUNSEL TO LOW DEFENSE ON THOSE ISSUES STRUCTIONS QUESTION HER AGAIN. ERROR. WAS PREJUDICIAL ERRED BY 74. THE TRIAL COURT TO VOIR 66. THE COURT’S REFUSAL THE CHAL- ITS DENIAL OF DIRE THE THE MATTER OF ON [JUROR FOR TO LENGE CAUSE THE OF FRONT-PAGE NEWS A.R.], NEW MEXICO’S GOVERNOR OF BY THE TRIAL ERRED COURT ALL DEATH COMMUTATION OF THE DENIAL OF CHAL- ITS IN THAT STATE ROW INMATES TO [JUROR LENGE FOR CAUSE DISCRETION WAS AN ABUSE OF J.D.]. AND DENIED MR. RODRIGUEZ BY THE TRIAL ERRED 76. COURT PROCESS, BY A FAIR TRIAL DUE THE DENIAL OF CHAL- ITS AND IMPARTIAL JURY HIS TO JUROR LENGE FOR CAUSE THE RIGHTS UNDER CRUEL [G.P.], AND BY REFUSAL TO ITS AND PUNISHMENT UNUSUAL THE HER AND OTHER INSTRUCT 24. AND CRIM.P. CLAUSES DISCUSS OR JURORS NOT TO EX- THE REFUSAL TO 67. COURT’S THAT IN THEIR FACT CONSIDER CAUSE [J.A.] JUROR FOR CUSE DELIBERATIONS. DIRE WAS ERROR WHERE VOIR THE TRIAL COURT’S EXCUSALS 77. THAT THE PO- ESTABLISHED THEIR VIEWS JURORS FOR OF TENTIAL REFUSED TO JUROR PEN- THE DEATH CONCERNING THAT LIFE IN PRISON BELIEVE AND ALTY IMPROPER WERE OF MEANT AT LEAST 20 YEARS LAW, AND THE CONTRARY TO THE INCARCERATION UNDER THEREBY MR. RODRIGUEZ WAS LAW. LAW, OF DENIED DUE PROCESS BY ERRED THE TRIAL COURT 68. TRIAL BY IMPARTIAL A FAIR DENIAL THE CHAL- OF ITS AND HIS RIGHTS UNDER JURY TO [JUROR LENGE FOR CAUSE AND UNUSUAL THE CRUEL DIRE ESTAB- WHERE VOIR J.B.] CLAUSES. PUNISHMENT THAT POTENTIAL THAT LISHED ERRED BY REFUS- THE COURT 78. AGAINST WAS BIASED JUROR THE CAUSE TO EXCUSE FOR ING MR. RODRIGUEZ. AWARE OF WHO WERE JURORS BY ERRED THE TRIAL COURT 69. AND SEN- THE CONVICTION THE DENIAL OF CHAL- ITS MR. RODRIGUEZ’ OF TENCE [JUROR TO LENGE FOR CAUSE THE SAME FOR BROTHER D.L.]. CHARGES. BY ERRED IN- THE TRIAL COURT TO

70. THE REFUSAL 79. COURT’S PRO- THE SEVERAL THE CHAL- DENIAL OF STRUCT ITS AND ACTUAL JURORS [JUROR TO SPECTIVE LENGE FOR CAUSE THE AWARE OF WHO WERE D.G.] EXAMINING MR. THE PROCESS OF OF RODRI- CONVICTION QUALIFYING AND POTENTIAL TO GUEZ’ BROTHER NOT CON- HARD- WHO CLAIMED JURORS THAT FACT AND NOT TO SIDER SHIPS. THAT CONVICTION DISCUSS WITH OTHER JURORS WAS PREJ- THE TRIAL REFUSAL 82. COURT’S THE PANEL PRO- ERROR. TO STRIKE OF UDICIAL WHOM SPECTIVE JURORS TO THE TIME AND UNREASONABLE THE THAT MR. STATE ARGUED MATTER LIMITATIONS SUBJECT TRIED GET RODRIGUEZ TO SEN- PLACED ON DEFENSE COUN- TENCED AROUND CHRISTMAS DIRE VOIR VIOLATED SEL’S PURPOSES, OR FOR SYMPATHY 24 AND THE CRIM.P. DUE PRO- ANY RELIEF TO GRANT OTHER BY AND TRIAL JURY CESS WAS ERROR. AND CLAUSES OF THE FEDERAL THE TRIAL AN IN- COURT USED CONSTITUTIONS, COLORADO CORRECT LEGAL STANDARD IN AND DENIED MR. RODRIGUEZ ITS DECISIONS TO EXCLUDE JU- THE INTELLI- HIS RIGHT TO THEIR RORS BECAUSE OF SCRU- GENT EXERCISE OF PEREMPTO- THE DEATH PEN- PLES AGAINST RY AND CAUSE CHALLENGES. ALTY. THE DEATH SENTENCE THE THAT NO COURT’S ORDER BE MUST THUS VACATED. CONTEMPORANEOUS OBJEC- AN 84. THE TRIAL COURT’S USE OF TIONS TO THE LIMITATIONS EX- STANDARD FOR IMPROPER BE COULD MADE PREVENTED PROSPEC- CUSING SCRUPLED THE ACCUSED FROM MAKING TIVE MR. JURORS VIOLATED ON THE EFFECTS OF RECORD A FAIR RODRIGUEZ’ RIGHTS TO THE AND DE- COURT’S ORDERS JURY, AND IMPARTIAL DUE NIED THE HIS FUN- ACCUSED AND THE PROCESS OF LAW PRO- DAMENTAL RIGHTS. OF AND HIBITIONS CRUEL UN- DENIED A 81. MR. RODRIGUEZ WAS USUAL PUNISHMENT. BY FAIR TRIAL IMPARTIAL THE ERRED BY 85. TRIAL COURT JURY, PROCESS, A DUE JURY THE REFUSING TO PRECLUDE DRAWN FROM RANDOM CROSS PROSECUTION FROM ARGUING COMMUNITY, THE SECTION OF EVIDENCE ON OR PRESENTING THE AND HIS RIGHTS UNDER THEORIES INCONSISTENT WITH ACT, BY THE JURY SELECTION FACTS OR THEORIES ARGUED MANNER ARBI- COURT’S OF THE WITH RESPECT TO CO-DE- TRARILY AND DIS- UNFAIRLY FENDANTS. TRIBUTING JURORS WHO UN- 86. THE EXCLUSION OF RELEVANT CLAIMED SUCCESSFULLY AND EXCULPATORY EVIDENCE THE PAN- HARDSHIPS AMONG OF DAVID MARTINEZ’ PHYSICAL NOT, HAD OF WHO ELS THOSE AFTER CONDITION HIS ARREST ADEQUATE- BY ITS FAILURE TO PROCESS, THE VIOLATED DUE LY THE PROCESS, ADVISE PROSPECTIVE COMPULSORY CON- THE MEANING OF JURORS OF AND AND FRONTATION CRUEL REQUIREMENTS AND MINIMAL UNUSUAL PUNISHMENT CLAUS- AN ES. OF A HARDSHIP MERITING BE-

EXCUSE FROM JURY DUTY PROCESS, 87. THE CRUEL AND DUE THE ASKING ENTIRE VE- FORE AND UNUSUAL PUNISHMENT THEM- NIRE SEPARATE TO EQUAL PROTECTION CLAUSES THE SELVES ON BASIS OF THE FEDERAL AND OF COLORA- HARDSHIPS, CONSTITUTIONS, AND BY CLAIMED AND THE DO STATUTE, DEATH WERE ITS FAILURE TO COMPLETE VIOLAT- BY THE TRIAL RE- ED COURT’S CESS AND TO PRESENT EVI- DENCE IN MITIGATION. TO PUT A BURDEN OF FUSAL ON THE PROOF PROSECUTION THE 92. STATE’S CROSS-EXAMINA- PROVE THAT MITIGATING TO TION OF JAIL [DENVER COUNTY CHAPLAIN], FACTORS DID NOT EXIST. AN IMPORTANT WITNESS, MITIGATION CON- THE TRIAL 88. COURT’S ALLOWING IN CERNING HIS TESTIMONY DR. OGURA TO TESTIFY AS TO THE TRIAL OF MR. RODRIGUEZ’ PHOTOGRAPHS NOT OFFERED BROTHER, CHRIS, THE LAWYER OR ADMITTED EVIDENCE INTO CHRIS, WHO REPRESENTED WAS ERROR. MR. RODRIGUEZ THE AND CONDI- PHYSICAL WAS THUS DENIED DUE PRO- THE TIONS OF DENVER COUN- CESS OF LAW AND HIS RIGHT TO JAIL, IMPROPER, TY AL- WAS A FAIR AND IMPARTIAL JURY LOWED THE INTRODUCTION OF AND THE HIS RIGHTS UNDER AND IRRELE- PREJUDICIAL CRUEL AND UNUSUAL PUNISH- MATTERS, VANT AND WAS UN- CLAUSES, MENT ALL UNDER FAIR THE BECAUSE COURT THE FEDERAL AND BOTH COLO- HAD SUPPRESSED EVIDENCE RADO CONSTITUTIONS. OF THE ACTUAL CONDITIONS IN BY MR. MR. ADE- PRISON OFFERED RODRIGUEZ WAS NOT RODRIGUEZ. QUATELY ADVISED AND DID OF MAKE ADEQUATE NOT WAIVERS THE TRIAL COURT’S RULING OF HIS CONSTITUTIONAL RIGHT THE MR. THAT STATEMENTS OF AT ANY THE TO TESTIFY OF WERE RODRIGUEZ VOLUNTARY THREE THE IN PARTS OF TRIAL DE- WAS ERRONEOUS AND ALSO NIED MR. HIS THIS CASE. RODRIGUEZ RIGHT TO TESTIFY IN HIS OWN 90. THE ADMISSION OF THE CUMU- AND AT THE DEFENSE PENAL- LATIVE, INFLAMMATORY PHO- TY PHASE. TOGRAPHS OF THE AND VICTIM 94. THE TO RE- COURT’S REFUSAL THE THE SCENE WHERE CAR QUIRE DAVID MARTINEZ TO CO- WAS LOCATED VIOLATED THE OPERATE WITH DEFENSE DUE AND TRIAL BY PROCESS INVESTIGATION UN- COUNSEL’S JURY CLAUSES AND THE RULES DER PENALTY OF CONTEMPT THE OF EVIDENCE. SHOWING MR. DENIED RODRIGUEZ DUE THE OF THOSE TO JURY PHOTOS AND PROCESS OF LAW HIS THEY ADMITTED BEFORE WERE TO COMPULSORY PRO- RIGHTS INTO EVIDENCE ALSO ER- WAS AND CESS CONFRONTATION ROR. AND THE OF PROHIBITIONS THE PERMITTING OF 91. COURT’S AND UNUSUAL PUNISH- CRUEL THE STATE’S EXAMINATION OF MENT. MARQUEZ THE MARGIE AS TO TRIAL REFUSAL 95. THE COURT’S MR. “STYLE” OF LETTERS FROM ALLOW THE JAIL PSYCHIA- TO RODRIGUEZ, AFTER SUSTAIN- TO TESTIFY CONCERN- TRIST ING THE STATE’S OBJECTION TO DRUGS ING THE PSYCHOTROPIC INQUIRY BY DE- THE SAME MR. WAS TAKING RODRIGUEZ COUNSEL, FENSE IS INDICA- TRIAL, AFFECT- DURING WHICH AND THE COURT’S BIAS DEMEANOR, TIVE OF A ED WITHOUT HIS AND WAS ONE-SIDED UNFAIR. THE WAIVER OF DOC- TOTAL PRIVILEGE, DENIED MR. RODRIGUEZ WAS AND TOR-PATIENT THE OF HIS RIGHTS TO DUE PROCESS WITHOUT ALLOWING INQUIRE TO INTO THOSE AND PRO- STATE LAW COMPULSORY MATTERS, AND IN OR- PRIVILEGED VIOLAT- ADDITION THOSE DENIED MR. THE AND DERS RODRIGUEZ ED DUE PROCESS ALL OF THE RIGHTS NOTED AND PUNISH- CRUEL UNUSUAL REFUS- HEREIN. THE COURT’S FED- MENT THE CLAUSES OF AL A HEARING ON TO ALLOW AND ERAL CONSTI- COLORADO THOSE VIOLATED CLAIMS ALSO DEATH AND THE TUTIONS THE RIGHTS FUNDAMENTAL STATUTE. NOTED HEREIN. THE TRIAL 96. REFUSAL COURT’S [DEN- ORDER 100. THE PROHIBITING TO TO ALLOW MR. RODRIGUEZ CHAPLAIN] VER COUNTY JAIL THE A CALL AS PROSECUTOR FROM WEARING HIS ECCLESI- IN- WITNESS AFTER THE STATE COLLAR IF HE SAT ASTICAL TENTIONALLY CREATED THE FAMILY MR. ROD- WITH OF AND FALSE EXTREMELY PREJU- AN RIGUEZ TRIAL WAS DURING DICIAL IMPRESSION OF COLLU- OF OUTRAGEOUS EXHIBITION AND BY DE- SION MISCONDUCT THE TRIAL COURT’S FAVORIT- FENSE COUNSEL THROUGH ITS THE ISM TOWARD PROSECUTION QUESTIONING MARGIE MAR- OF AND THE BIAS AGAINST AC- QUEZ, DENIED MR. RODRIGUEZ AND THIS CUSED. FAVORITISM RIGHTS. HIS CONSTITUTIONAL WAS BIAS DEMONSTRATED RODRIGUEZ’ 97. MR. STATEMENTS BY THROUGHOUT THE TRIAL AND MAR- LETTERS TO MARGIE THE COURT’S DISPARATE QUEZ AND WERE INVOLUNTARY TREATMENT THE FAMILY OF OF WERE OBTAINED IN VIOLATION MR. RODRIGUEZ AND THE SUP- MR. TO OF RODRIGUEZ’ RIGHTS THE PORTERS OF PROSECU- PROCESS, DUE AND COUNSEL TION. THE PRIVILEGE AGAINST SELF THE TRIAL 101. COURT’S REFUSAL INCRIMINATION, ALL UNDER TO SENTENCE MR. RODRIGUEZ THE AND BOTH FEDERAL COLO- THE ON HABITUAL CRIMINAL AND RADO CONSTITUTIONS COUNTS BEFORE THE PENALTY BEEN SHOULD HAVE SUP- ER- PHASE WAS PREJUDICIAL PRESSED. THE ROR. THIS DENIAL OF THE COURT’S ACTIONS RESULT- RIGHT TO PRESENT EVIDENCE IN MR. ING RODRIGUEZ NOT IN THE MITIGATION VIOLATED BY BEING REPRESENTED PROCESS AND AND DUE CRUEL AT THE DAY COUNSEL FIRST UNUSUAL PUNISHMENT CLAUS- TRIAL DENIED MR. OF RODRI- AND THE ES DEATH STATUTE. LAW, A GUEZ DUE PROCESS OF THE TRIAL COURT’S REFUSAL TRIAL FAIR BY IMPARTIAL THE TO COMPLY WITH SU- JURY, AND RIGHTS TO HIS PREME RE- COURT’S ORDER COUNSEL, EQUAL PROTECTION DAY GARDING THE FIRST OF LAWS, THE AND THE OF PROHI- TRIAL, AFTER THE CON- COURT BITIONS OF AND UN- CRUEL THE FESSED OR- SHOW CAUSE USUAL PUNISHMENT. DER ARISING THE ORIGI- FROM PROCEEDING, TRI- THE RE: NAL 99. COURT’S “ORDER VIOLATED PROCESS, THE BY AL AND “AMENDED DUE TRIAL SCHEDULE” AND JURY RIGHT TO COUNSEL VIOLATED MR. RODRI- ORDER” CLAUSES, THE AS WELL AS OR- RIGHTS GUEZ’ FUNDAMENTAL THE DER OF COURT. SUPREME IN ALL OF THE RESPECTS NOT- TO OR- OBJECTIONS ED IN THE THE TRIAL ERRED BY 103. COURT TRIAL DER REGARDING SCHED- AN IMPOSING UNREALISTIC ORDER, AND AND TRIAL ULE AMENDED UNDULY HARSH TRIAL THE SCHEDULE. THE GUILTY OF GREATER CHARGE AND VIOLATED THE COURT’S MANNER OF PROCEED- SELECTION, IN PRINCIPLES SET FORTH ING DURING JURY BECK V. FORCING DEFENSE COUNSEL ALABAMA 65 L.Ed.2d S.Ct. DAILY TO WORK TO HOURS (1980). COURT, IN WITH NO OPPORTUNI- MEAL, TY FOR EVEN A DECENT PER- 108. THE JURY INSTRUCTIONS INTERFERED AND DE- WITH MITTED THE JURY FIND MR. TO STROYED DEFENSE COUNSEL’S RODRIGUEZ FOR CON- GUILTY ABILITY BE PREPARED AND HE TO DUCT WAS NOT CHARGED WITH COMMITTING. THIS VIO- TO PROVIDE ASSISTANCE OF LATED THE DUE PROCESS AND COUNSEL FOR MR. RODRIGUEZ TRIAL BY JURY CLAUSES. AND DENIED MR. RODRIGUEZ THOSE RIGHTS AND DUE PRO- 109. THE JURY INSTRUCTIONS CESS OF LAW. FAILED EXPLAIN TO SEVERAL OF THE ESSENTIAL ELEMENTS 104. THE CHARGES AND DEATH SEN- OF FIRST DEGREE SEXUAL AS- TENCE BE SHOULD DISMISSED SAULT, AND THE INSTRUCTIONS THE DUE TO PROSECUTIONS VI- ALLOWED GUILTY VERDICT OLATIONS OF DUE PROCESS. DEATH AND SENTENCE BASED 105'. THE PROSECUTION’S OUTRA- AN CRIME UPON UNCHARGED GEOUS MISCONDUCT REGARD- THE BY THE SUPPLIED TO JURY ING ITS DEALINGS MAR- WITH IN THE COURT INSTRUCTIONS. MARQUEZ GIE WHEN SHE WAS MR. RODRIGUEZ THEREBY WAS REPRESENTED BY COUNSEL DENIED TRIAL BY HIS RIGHT TO MR. FOR RODRIGUEZ VIOLATED MURDER, THE FELONY JURY. THE DUE PROCESS AND RIGHT AND KIDNAPPING MOTOR VEHI- TO COUNSEL CLAUSES. CONVICTIONS, CLE THEFT AND 106.- THE AND STATE’S EGREGIOUS THE DEATH PENALTY BASED PERVASIVE DUR- MISCONDUCT ALL OF UPON THOSE CONVIC- ING AT CLOSING ARGUMENTS BE TIONS SHOULD VACATED. THE PHASE GUILT/INNOCENCE THE CONVICTION FOR FIRST DENIED MR. RODRIGUEZ HIS DEGREE SEXUAL ASSAULT VIO- RIGHTS UNDER THE DUE PRO- THE AND LATES PROCESS DIJE CESS, TRIAL BY AND JURY CRU- BE- TRIAL BY JURY CLAUSES EL AND UNUSUAL PUNISHMENT THE RE- JURY WAS NOT CAUSE CLAUSES, WHEN ESPECIALLY QUIRED DE- TO UNANIMOUSLY THE COMBINED WITH COURT’S EITHER THE FACTS OR CIDE ON THAT ORDER DEFENSE COUN- BEHIND THE LEGAL THEORY AND THE JURY SEL NOT OBJECT THE SEXUAL AS- CHARGE. INSTRUCTIONS. CONVICTION, THE AND SAULT ERRED BY 107. THE TRIAL COURT MURDER, KIDNAPPING, FELONY REQUIRING THAT THE JURY AND FIRST DEGREE AGGRAVAT- MR. FIND THAT RODRIGUEZ THEFT ED MOTOR VEHICLE PRESUMABLY WAS NOT GUILTY OF FIRST CONVICTIONS THEREUPON, ARE ALSO AFTER DE- BASED DEGREE MURDER INVALID, THE DEATH SEN- AS IS IT WAS LIBERATION BEFORE TENCE. PERMITTED TO CONSIDER HE WHETHER WAS GUILTY OF THE INSTRUCTIONS JURY DEGREE MURDER. SECOND FAILED EXPLAIN TO SEVERAL THE JURY INTO THE ELEMENTS THIS COERCED OF ESSENTIAL A DEGREE SEXUAL AS- RETURNING VERDICT OF OF FIRST AND HIS UN- MR. RODRIGUEZ WAS PROCESS RIGHTS SAULT. DER THE CRUEL AND UNUSU- THEREBY DENIED DUE PRO- BY AL PUNISHMENT CLAUSES MURDER, THE FELONY CESS. THE JURY’S CONSIDERATION AND MOTOR VEHI- KIDNAPPING OF THE UNCONSTITUTIONAL CONVICTIONS, AND CLE THEFT DE- CONVICTION FOR SECOND THE PENALTY DEATH BASED RE- GREE AND KIDNAPPING ASSAULT, UPON THE SEXUAL TO LATED CONVICTIONS AS AND FELONY MURDER OTHER THE PENALTY. BE SHOULD ALSO CONVICTIONS 115. THE THE INSTRUCTIONS TO VACATED, THEY ALSO VI- SINCE CONCERNING THE AGGRA- JURY AND OLATE THE DUE PROCESS VATED ROBBERY CHARGE OMIT- AND UNUSUAL CRUEL PUNISH- TED ELEMENTS OF ESSENTIAL MENT CLAUSES. DE- THE AND THUS OFFENSE THERE 112. WAS INSUFFICIENT EVI- A TRIAL NIED MR. RODRIGUEZ THE DENCE TO SUPPORT CON- FURTHER, BY MR. RODRI- JURY. VICTION FIRST DEGREE FOR DENIED PRO- GUEZ WAS DUE SEXUAL THE CON- ASSAULT. CESS, A TRIAL BY AND JURY OFFENSE, THAT VICTION FOR THE HIS RIGHTS UNDER CRUEL MURDER, AND THE KIDNAPPING AND UNUSUAL PUNISHMENT AND VEHICLE THEFT MOTOR BY THE CON- CLAUSES JURY’S ON THAT CONVICTIONS BASED OF SIDERATION THE UNCON- BE ALLEGATION SHOULD ALSO STITUTIONAL AGGRAVATED VACATED. THE DEATH SEN- AND RE- ROBBERY CONVICTION TENCE ALSO BE SHOULD VA- LATED AS TO CONVICTIONS CATED, IT SINCE WAS BASED ON THE PENALTY. ALL OF THESE UNCONSTITU- TRIAL THE COURT’S INSTRUC- TIONAL CONVICTIONS. THE CON- TIONS TO JURY THE CERNING AGGRAVATED MR. WAS DENIED RODRIGUEZ CHARGE OMITTED ROBBERY DUE BECAUSE THE IN- PROCESS OF ESSENTIAL ELEMENTS THE STRUCTIONS TO JURY DE- THE OFFENSE AND THUS ELE- OMITTED ESSENTIAL NIED MR. DUE RODRIGUEZ MENTS THE SECOND DE- OF FEDER- UNDER THE PROCESS GREE KIDNAPPING CHARGE. AL AND CONSTI- COLORADO FURTHER, MR. RODRIGUEZ WAS FURTHER, MR. TUTIONS. DENIED DUE PROCESS AND HIS RODRIGUEZ WAS DENIED THE RIGHTS UNDER CRUEL AND DUE PROCESS OF LAW AND PUNISHMENT UNUSUAL THE HIS RIGHTS UNDER BY THE CLAUSES JURY’S CON- AND CRUEL PUN- UNUSUAL THE SIDERATION OF UNCONSTI- ISHMENT BY THE CLAUSES TUTIONAL KIDNAPPING CON- CONSIDERATION OF JURY’S THE VICTION TO PENALTY. AS THE AG- UNCONSTITUTIONAL 114. THE INSTRUCTIONS CONCERN- ROBBERY GRAVATED CONVIC- ING THE OF CHARGE SECOND THE PENALTY. TION AS TO DEGREE KIDNAPPING OMITTED 117. THE THE TO INSTRUCTIONS ELE- SEVERAL ESSENTIAL .DE- JURY REGARDING FIRST AND MENTS THE OFFENSE OF GREE VE- AGGRAVATED MOTOR DENIED MR. RODRIGUEZ THEFT OMITTED HICLE NUMER- THE TRIAL BY JURY UNDER ELEMENTS OF OUS ESSENTIAL OFFENSE, FEDERAL AND CON- COLORADO THAT THUS DENYING FURTHER, MR. STITUTIONS. MR. RODRIGUEZ DUE PROCESS. THAT AND THE DENIED DUE CONVICTION RODRIGUEZ WAS DEATH EL SENTENCE BASED AND UNUSUAL PUNISHMENT BE CLAUSES. THEREUPON SHOULD VA- CATED. 121. THE FELONY-MURDER CONVIC- TION IS INVALID THE BECAUSE 118. THE INSTRUCTIONS TO THE INSTRUCTIONS FAIL RE- TO JURY CONCERNING FIRST-DE- QUIRE THAT THE JURY UNANI- GREE AGGRAVATED MOTOR VE- MOUSLY AGREE AT ON LEAST HICLE THEFT OMITTED ES- ONE OF THE THREE DIFFER- SENTIAL ELEMENTS OF THE ENT OF LIABILITY THEORIES OFFENSE AND DENIED MR. THAT WERE PUT FORTH BY THE RODRIGUEZ A TRIAL BY JURY STATE. THE DEATH SENTENCE UNDER THE FEDERAL AND BASED THEREUPON SHOULD COLORADO CONSTITUTIONS. THUS BE VACATED. FURTHER, MR. RODRIGUEZ 122. THE INSTRUCTIONS ON THE WAS DENIED DUE PROCESS FELONY-MURDER CHARGE AND HIS RIGHTS UNDER THE FAILED TO MANY PROVIDE OF CRUEL AND UNUSUAL PUNISH- THE ESSENTIAL ELEMENTS OF MENT BY AND TRIAL JURY OFFENSE; THUS, THE ALLEGED CLAUSES BY THE JURY’S CON- THE TRIAL BY JURY CLAUSES SIDERATION THE OF UNCON- WERE VIOLATED AND THE STITUTIONAL FIRST-DEGREE DEATH SENTENCE BASED ON AGGRAVATED MOTOR VEHICLE THAT BE CONVICTION SHOULD THEFT CONVICTION AND THE VACATED THE UNDER DUE PRO- CESS, PRESUMABLY RELATED CON- TRIAL BY AND JURY CRU- EL AND SPIRACY UNUSUAL PUNISHMENT CONVICTION AS TO CLAUSES. THE PENALTY. THE JURY INSTRUCTIONS ON

119. THE AND CIRCULAR CHARGES THE CHARGE OF CONSPIRACY DE- CONVICTIONS FOR FIRST TO COMMIT FIRST DEGREE MURDER, GREE FIRST DEGREE MURDER WERE DEFICIENT AND SEXUAL ASSAULT AND SECOND DENIED MR. RODRIGUEZ HIS KIDNAPPING, DEGREE AND RIGHT TO A TRIAL BY JURY. FIRST DEGREE AGGRAVATED THE DEATH SENTENCE BASED THEFT, MOTOR VEHICLE AND THAT UPON CONVICTION MUST CHARGES, THE CONSPIRACY VI- BE ALSO VACATED. THE OLATE DUE PROCESS AND 124. THE JURY INSTRUCTIONS ON DOUBLE JEOPARDY CLAUSES OF THE CHARGE OF CONSPIRACY THE FEDERAL AND COLORADO TO COMMIT FIRST DEGREE CONSTITUTIONS, AND THEY WERE AND MURDER DEFICIENT THE AND DEATH SENTENCE DENIED MR. RODRIGUEZ HIS BE VACATED. SHOULD RIGHTS TO DUE PROCESS OF DEATH LAW. THE SENTENCE 120. THE THE INSTRUCTIONS ON THAT BASED UPON CONVICTION FELONY-MURDER CHARGE BE MUST ALSO VACATED. FAILED TO MANY PROVIDE OF THE ESSENTIAL ELEMENTS OF 125. THE JURY INSTRUCTIONS ON OFFENSE; THUS, THE THE ALLEGED CHARGE OF CONSPIRACY TO COMMIT SECOND DEGREE THE DUE PROCESS CLAUSES KIDNAPPING WERE DEFICIENT AND THE VIOLATED WERE AND DENIED RODRIGUEZ MR.. DEATH BASED ON SENTENCE BY HIS RIGHT TO A TRIAL JURY. THAT BE CONVICTION SHOULD THE VACATED UNDER DUE PRO- THE JURY INSTRUCTIONS ON CESS, AND THE TRIAL BY JURY CRU- CHARGE OF CONSPIRACY SENTENCE, DEATH SHOULD

TO COMMIT SECOND DEGREE BE VACATED. THUS KIDNAPPING WERE DEFICIENT AND MR. RODRIGUEZ DENIED FIRST 132. THE CONVICTION FOR HIS RIGHTS TO DUE PROCESS OF VIO- DEGREE SEXUAL ASSAULT LAW. AND THE DUE LATES PROCESS BY BE- TRIAL JURY CLAUSES THE 127. JURY INSTRUCTIONS ON RE- THE NOT CAUSE JURY WAS THE CHARGE OF CONSPIRACY QUIRED DE- UNANIMOUSLY TO TO COMMIT MOTOR VEHICLE CIDE ON EITHER THE FACTS OR THEFT AND WERE DEFICIENT BEHIND THE LEGAL THEORY DENIED MR. RODRIGUEZ HIS THE CHARGE. AS- SEXUAL TRIAL BY RIGHT TO A JURY. CONVICTION, THE AND SAULT THE ON THE 128. INSTRUCTIONS MURDER, KIDNAPPING, AND MO- CHARGE OF CONSPIRACY TO THEFT CONVIC- TOR VEHICLE VEHICLE COMMIT MOTOR TIONS, AND THE DEATH PENAL- THEFT DEFICIENT AND WERE BASED TY PRESUMABLY DENIED MR. RODRIGUEZ HIS THEREUPON, ARE INVAL- ALSO PROCESS. RIGHT TO DUE ID. THE DE- 129. FAILURE TO COURT’S 133. FIRST THE CONVICTION FOR FINE ELE- THE ESSENTIAL DEGREE AGGRAVATED MOTOR MENT THE THREE OF CONSPIR- THEFT THE VEHICLE VIOLATES ACY CHARGES OF “ATTEMPT” BY AND TRIAL DUE PROCESS FOR THE JURY DENIED MR. THE JURY CLAUSES BECAUSE AND DUE PROCESS RODRIGUEZ REQUIRED TO JURY WAS NOT A TRIAL BY HIS RIGHT TO JURY EI- UNANIMOUSLY ON DECIDE TO ELE- AS THOSE ESSENTIAL THER THE FACTS LEGAL OR MENTS THE CHARGED OF OF- BEHIND THEORY THE CHARGE. FENSES, THE FEDERAL UNDER 134. THE TRIAL SUA COURT’S AND COLORADO CONSTITU- THE SUBMISSION OF SPONTE TIONS. THAT UNCHARGED ALLEGATION THE ERRONEOUS INSTRUCTION A MR. RODRIGUEZ COMMITTED DENIED MR. ON COMPLICITY “CRIME OF VIOLENCE” DURING RIGHTS RODRIGUEZ HIS TO DUE THE AGGRAVATED VEHI- MOTOR A TRIAL BY AND TO PROCESS THEFT, CLE VIOLATED THE THE JURY AND CAUSED JURY AND AND DUE PROCESS CRUEL A DEATH TO VERDICT. RETURN UNUSUAL PUNISHMENT CLAUS- THE COMPLICITY INSTRUCTION DENIED AND MR. RODRI- ES THE GIVEN AT A FAIR BY IMPAR- GUILT/INNO- GUEZ TRIAL AN CENCE TRIAL WAS INCOR- THE TIAL JURY. RESULTING RECT STATEMENT OF THE LAW AND VERDICT SENTENCE VACATED, THE AND JURY TO BE ALLOWED SHOULD AS THE DEATH PENALTY CONVICT MR. RODRIGUEZ WHEN SHOULD FACT, WAS, BASED ON THAT “CON- HE IN NOT WHICH IS GUILTY VICTION” FOR SERIOUS CRIMI- THE OF CHARGED OFFENSES. NAL OFFENSE. MR. WAS THEREBY RODRIGUEZ LAW, DENIED PROCESS OF DUE EVI- 135. THERE WAS INSUFFICIENT JURY, A TRIAL BY AND HIS THE DENCE TO SUPPORT JURY THE RIGHTS UNDER CRUEL THE FINDINGS ON OF VI- CRIME ALLEGATIONS, AND PUNISHMENT UNUSUAL AND OLENCE THE CONVICTIONS DEATH AND CLAUSES. THE SENTENCE AND SENTENCES BASED THE OTHER SENTENCES THEREUPON, THUS BE VACATED THE SHOULD INCLUDING THEY THE SINCE VIOLATE DUE DEATH SENTENCE SHOULD BE AND PROCESS CRUEL AND UN- VACATED. USUAL PUNISHMENT CLAUSES 141. THE EVIDENCE WAS INSUFFI- THE FEDERAL OF AND COLORA- CIENT TO SUPPORT THE CON-

DO CONSTITUTIONS. VICTIONS OF AGGRAVATED ROB- MURDER, BERY AND THE FELONY 136. THE INSTRUCTIONS TO AND THOSE CONVICTIONS AND JURY THAT THE “CRIME OF VIO- THE DEATH SENTENCE BASED LENCE” A ALLEGATION WAS THEREUPON MUST BE VACAT- CRIMINAL DENIED OFFENSE ED, THEY SINCE VIOLATE THE MR. RODRIGUEZ HIS RIGHTS UN- DUE PROCESS AND AND CRUEL DER THE AND CRUEL UNUSUAL UNUSUAL PUNISHMENT CLAUS- PUNISHMENT, DUE PROCESS ES. AND TRIAL BY JURY CLAUSES

AND COLORADO’S DEATH STAT- 142. THERE WAS INSUFFICIENT EVI- UTE. THE DENCE TO SUPPORT CON- VICTION FOR FIRST DEGREE 137. THE TRIAL COURT’S ACTION IN SEXUAL ASSAULT. THE CON- PROVIDING FIVE VERDICT OFFENSE, VICTION FOR THAT ON FORMS ONE CRIME OF VIO- MURDER, AND THE KIDNAPPING LENCE ALLEGATION WAS PREJ- AND MOTOR VEHICLE THEFT UDICIAL ERROR. THAT CONVICTIONS BASED ON 138. THE COURT’S INSTRUCTIONS TO ALLEGATION SHOULD ALSO BE THE JURY OMITTED SEVERAL VACATED. THE DEATH SEN- ESSENTIAL THE ELEMENTS OF TENCE SHOULD ALSO BE VA- “CRIME OF VIOLENCE” ALLEGA- CATED, SINCE IT WAS BASED ON TIONS, THUS DENYING MR. ROD- ALL OF THESE UNCONSTITU- n BY RIGUEZ TRIAL JURY AS TO TIONAL CONVICTIONS. THOSE AND ALLEGATIONS DUE 143. THE UNDERLYING FELONIES THE PROCESS. SENTENCES MERGED THE INTO FELONY AND DEATH SENTENCE BASED THE TRIAL MURDER. COURT UPON THOSE CONVICTIONS FOR ERRED BY IN- FAILING TO “OFFENSES” VIOLATE THOSE THE STRUCT JURY ON THIS PROVISIONS AND THE CRUEL FACT, CRITICAL AND BY IMPOS- AND UNUSUAL PUNISHMENT ING LIFE SENTENCES FOR THE CLAUSES AND BE SHOULD VA- FELONIES, UNDERLYING AND CATED. THE CONVICTIONS AND SEN- THE CRIME OF VIOLENCE AL- TENCES, AND THE DEATH SEN- LEGATION WAS DUPLICITOUS THEREON, TENCE BASED AND THE VIOLATED DUE PRO- SHOULD BE VACATED SINCE CESS CLAUSES AND THE CON- THEY THE VIOLATE DUE PRO- TROLLING STATUTE. CESS, JEOPARDY, DOUBLE TRI- 140. MR. RODRIGUEZ WAS DENIED AL BY AND JURY CRUEL AND

DUE PROCESS OF LAW UNDER UNUSUAL PUNISHMENT CLAUS- THE THE FEDERAL ES OF U.S. AND COLORADO AND COLORADO CONSTITUTIONS. THE CONSTITUTIONS BECAUSE INFORMATION PURPORTING TO THE SEXUAL ASSAULT CONVIC- HIM CHARGE WITH CRIMES WAS THE KID- TION MERGED INTO DEFECTIVE, FAILED TO. NAPPING CONVICTION. THE OFFENSES, CHARGE HIM WITH TRIAL ERRED BY FAIL- COURT AND DID NOT GIVE JURISDIC- ING THE TO INSTRUCT JURY ON FACT, TION TO THE COURT. THE CON- THIS CRITICAL AND BY VICTIONS AND THE RESULTING IMPOSING A LIFE SENTENCE A FAIR TRIAL THE ASSAULT MR. RODRIGUEZ FOR SEXUAL CON- JURY, PRO-

VICTION, BY IMPARTIAL DUE THE AND CONVICTION LAW AND VIOLATED CESS OF SENTENCE, AND THE AND CRUEL THE PROHIBITIONS OF DEATH BASED SENTENCE AND UNUSUAL PUNISHMENT THEREON, BE VACAT- SHOULD THE AND FEDERAL UNDER ED THEY VIOLATE THE SINCE COLORADO CONSTITUTIONS. PROCESS, DUE DOUBLE JEOPAR- DEATH AND THE SENTENCE DY, AND TRIAL BY JURY CRUEL BE THE CONVICTIONS SHOULD PUNISHMENT AND UNUSUAL VACATED. THE AND CLAUSES OF U.S. COL- 148. THE DISTRICT REFUS- COURT’S ORADO CONSTITUTIONS. AL TO PROVIDE MR. RODRIGUEZ THE FIRST DEGREE 145. MURDER THE OF THE WITH TRANSCRIPT THE MERGED INTO CONVICTION HEARING, IN OCTOBER FOR FIRST DE- CONVICTION THE FACE OF ORDERS FROM GREE AGGRAVATED MOTOR VE- AND DESIGNA- THIS COURT THEFT, HICLE SINCE PRESUM- RECORD DEMANDS AN TIONS OF ABLY THAT FIRST DEGREE INQUIRY FROM THIS COURT OF, AN MURDER ELEMENT WAS DENIED MR. AND RODRIGUEZ AND AN OFFENSE INCLUDED HIS FUNDAMENTAL RIGHTS. TO, THE DEGREE FIRST AGGRA- 149. THE NEWLY EVI- DISCOVERED THEFT. VATED MOTOR VEHICLE HAVE CLAIM DENCE SHOULD THE AND KID- SEXUAL ASSAULT BEEN GRANTED. NAPPING ALSO CONVICTIONS 150. JUDGE PETERSON’S BIAS MERGE. MR. RODRIGUEZ HAS MR. AND AGAINST RODRIGUEZ DENIED DUE THUS BEEN PRO- MR. ROD- HIS COUNSEL DENIED AND CESS OF LAW HIS RIGHTS HIS RIGHT TO DUE PRO- RIGUEZ THE DOUBLE JEOPARDY UNDER CESS. AND THE CLAUSES MURDER 151. NOT COM- MR. RODRIGUEZ WAS AND DEATH CONVICTION SEN- PETENT TO TRIAL. HE STAND BE TENCE SHOULD VA- THUS PRO- WAS THUS DENIED DUE CATED. LAW, EQUAL PRO- CESS OF TO 146. THE COURT’S INSTRUCTION LAW, OF THE TO THE TECTION THAT THE OF THE POSSIBILITY AND PROHIBITIONS OF CRUEL DEATH PENALTY SHOULD NOT PUNISHMENT, AND UNUSUAL ENTER THE INTO JURY’S CON- EFFECTIVE OF TO ASSISTANCE THE CHARGES SIDERATION OF COUNSEL. THE AGAINST ACCUSED VIOLAT- concurring: Justice SCOTT THE ED PRINCIPLES RECOG- judgment I reasoning in the concur TEXAS, NIZED IN V. ADAMS quali- majority. is “[A] sentence of death U.S. 65 L.Ed.2d 581 S.Ct. tatively any punishment other unlike (1980) AND THE DENIED AC- corresponding need exists for relia- [thus] a AND A CUSED DUE PROCESS bility sentencing procedure.” in the death FAIR TRIAL BY IMPARTIAL (citations omitted). Maj. op. at 253 Because JURY. uniquely is a sentence of death severe and THE TRIAL REFUSAL COURT’S final, op. dissenting Lohr I Justice THAT IT TO THE JURY INSTRUCT separately write to further the inef- address SYMPA- SHOULD CONSIDER NOT argument. fective assistance counsel THY THE OR PREJU- FOR VICTIM argument, at oral the briefs and THE ACCUSED AT DICE AGAINST posits that a direct correlation exists between race, THE TRIAL THE NOT delivery professional ON GUILTY the services and represent ability counsel’s PLEA AND DENIED or defense WAS ERROR client and ethnic Rodriguez’ defense counsel’s racial or er asserts ineffective assistance addressing attributes. merits of Without integrity claim evaluate the of the claim, argument, such I find the as made argument within that framework. The claim today, unacceptable. credulity against . when strains measured racial attorney characteristics of the now pub- contends that of a the use presenting or, argument matter, for that investigator lic defender or of a defense race hiring contracting practices or background ethnic from that differs diversity Public Defender.1 The in the Pub- patently Rod- unreasonable. strikingly lic negligible, Defender’s Office is riguez by asserting reaches conclusion when, especially presumably, significant likely he would have more disclosed mitigating members of the Public evidence child abuse had he and Defender’s clientele those serve him people paucity enlisted to been of the same are of color. This is more 35(c) Maj. op. race. During clearly highlighted, however, public when the hearing, ineffective assistance of counsel defender contends that a client received inef- public attempted initial defender fective assistance of an counsel because ab- to substantiate the unreasonableness commonality prohibited delivery sence of employee selection. When whether asked services, legal including of effective the col- mitigating she had received evidence from mitigating lection of evidence. Rodriguez during the meet- course of their public I the initial assume defender and ings, public responded: the defender Kelly, Rodriguez’ attorney, Nora current aware, I was at I even the time that asked are apparently both of whom not of the same that, him going that he was not tell me to background defendant, race or ethnic as the sexually that he had been abused. Our given Rodriguez’ have ineffective assistance backgrounds very incredibly were differ- (1) great asserting claim consideration before ent, although got I along, and we don’t (2) argument, continuing repre- the and to possible believe it have for him would been him, person sent of different racial or to tell me.... background. attorneys ethnic both Because ... upper I from an come middle-class Rodriguez appearing on behalf of fail to re- Anglo background from Southport, Con- very flect the racial or ethnic characteristics necticut, prob- where there are no racial posits Rodriguez to necessary his effective Ang- lems because there is no one but representation, only question integ- I can the los.... rity argument of the here. [Rodriguez’] background from the was event, any based on the facts set forth Denver, projects of west side a Chicano offered, legal in argument the record and I background. got along, We but there was unpersuaded provides remain that race ba- nothing relationship about the would that Rodriguez’ sis for claim of ineffective assis- have me ever let believe that he would majority counsel. tance of While the accu- give type have been able to me of the rately that this issue is without concludes personal that I it information realized was merit, separately my I write to raise con- necessary have. join judgment majority. of the cerns and Rodriguez’ v. 65 at Neither briefs 35-36. arguments provide nor his a further basis for concurring in part Justice KIRSHBAUM more, argument his claim. Without his dissenting part. in unpersuasive. however, majority’s I in insightful, It is concur resolution of the contextualize in public might which defend- it ini- Although circumstances issues it addresses. (85%); Hispanic 1. The record does not reflect the or ethnic 145 are white 18 are racial Defenders represented (4%); (11%); characteristics of the clients Public Defender 7 are African American and 1 is experience Rodriguez' or of (.006%). These statis- American Indian/Alaskan representing attorney current in of His- clients February tics are taken from the 1996 State However, panic investigators I out of 51 descent. do note that Department of of Personnel General Colorado Public Office 40 in the Defender's Support Services: Human Resource Services (78%); (20%); Hispanic are white 10 are and 1 Report: ADHOC EEOlc. (2%). Public is African American Out of 171 evidentiary that tially hearing for resolution of appear court erred in an district 35(c) However, evidentiary Rodriguez’ requests for issue.2 Crim.P. denying Rodriguez’ as- following conclusional allegations in his motion contains the hearings on the contained 35(c) jury commis- sertion: Crim.P. motion that Jury in sioner acted violation of the Uniform adequately ad- Rodriguez was Mr. not - Act, §§ 13-71-101 Selection Service adequate not make waiv- vised of did n (1973 (the Act), Supp.) C.R.S. right testify ers his of constitutional (Issue 61) jurors selecting prospective

in in parts the trial this three properly was not advised case. adequately not waive his constitu- did allege any Rodriguez’ facts motion does not (Issue 89), testify right trial tional support in of those conclusions. view a whole careful examination of the record as record, did this the district court state majority’s supports conclusion determining not abuse its discretion err in of those district court did not its denial transcripts of solely on the basis of the issue requests evidentiary hearings.1 proceedings. the trial 25, 1986, Rodriguez filed a On November majority’s While I concur in the resolution quash jury panel trial addresses, motion to with the join it I cannot issues allegations, sup- court. The motion contains part opin- majority’s IIA of its conclusion affidavit, ported by accompanying an that the appeal ion that in his this court improperly commissioner excused sever- consciously relinquished eighty has over jurors potential 35(e) from the final al classes of the issues he raised his Crim.P. However, Act. pool, violation Maj.op. specu- motion. I do not nor stated neither motion late whether would would argument in his brief filed here contains I prevail on the merits of such issues. sim- ultimately allegations pool the as that agree do he the ply not that has forfeited random represent constituted did not procedural right have the merits of those general public. of the Absent cross-section by issues addressed this court. allegations, establishing the such evidence approximately The district court dismissed of con- impropriety the commissioner’s contained in issues Crim.P. Rodri- duct would not establish a violation of 35(c) they ground on that had motion the guez’ process rights. due previously litigated. Stating Rod- been that eighteen riguez “specifically asserts” Similarly, allegation an that a defendant some testify Majority right appeal, in this the ad- knowingly did waive the those issues not Maj. op. require eighteen in circumstances dresses those issues. trial could some OF AND 1. as RODRIGUEZ DUE PROCESS LAW Issues 61 89 state follows: A FAIR BY IMPAR- HIS RIGHT TO TRIAL MR. ASSERTS ALL OF 61. RODRIGUEZ TIAL JURY. THE JURY SUMMONING IN MO- THE CLAIMS PRESENTED HIS IN THIS AND SELECTION PROCESS INFORMATION, QUASH TO MO- TION VIOLATED THE DUE PROCESS CASE PANEL, QUASH TO JURY MOTION TION THE AND TRIAL BY JURY CLAUSES OF PROCEEDINGS, STAY FOR TO MOTION CONSTITUTIONS, FEDERAL AND STATE HEARING, 25, 1986. FILED NOVEMBER THE STATUTES. AND CONTROLLING AND CONVIC- THE DEATH SENTENCE WAS NOT ADE- MR. RODRIGUEZ DUE TIONS SHOULD ALSO BE VACATED QUATELY AND NOT ADVISED OF DID INEXCUSABLE TO THE TRIAL COURT'S ADEQUATE HIS MAKE WAIVERS OF TO HEARINGS ON FAILURES ALLOW AT RIGHT TO TESTIFY CONSTITUTIONAL RAISED THEREIN AND TO THE ISSUES OF TRI- ANY OF THE THREE PARTS THE RELIEF AT THE TIME. THE GRANT AL THIS CASE. IN ALLOW THE AC- COURT’S REFUSAL TO AN OPPORTUNITY TO MAKE AN CUSED Rodriguez also the trial court's asserts that ADEQUATE RECORD OR SHOWING CON- concerning right Rodriguez' to testi- advisements However, IN THE CERNING THE MANNER WHICH fy inadequate. the record con- were WAS CHO- transcripts JURY PANEL SELECTED AND tains those and Rodri- advisements SEN, guez OF INCLUDING THE DECISIONS that in addition to does not assert evidence necessary transcripts is determination of THE JURY COMMISSIONER EXCUSING the for JURORS, adequacy MR. the of the advisements. PROSPECTIVE DENIED However, Rodriguez in 248-49. asserts in some circumstances constitute a relin- very his first issue appeal quishment on that the right, gen- district of a the of a assertion dismissing in court proposition relinquish- erred and therefore not eral does not indicate addressing by all of specific components the 110 issues raised his ment of the necessarily 35(c) Rodriguez Crim.P. motion.3 ex- general thus within proposition. included pressly requests Rodriguez this court review in asserts Issue that the trial ruling erroneously merits of district court’s that it court dismissed 110 issues 35(c) need not consider presented those issues. in his Crim.P. mo- by tion. Resolution issue as stated in his brief filed this court Rodriguez requires pro- determination of the alleged illustrates district court’s error priety of the ruling trial court’s and hence by that, way example contrary and asserts by of all review of the issues affected that conclusions, to the district court’s most of ruling. Rodriguez appellate is entitled to the previously those 110 issues had not been he requested aspects review has of all of the litigated. Rodriguez then states that there ruling dismissing trial court’s the is- are “many examples” other obvious of issues 35(c) he sues raised his Crim.P. motion. which previously litigated, had been that reasons, foregoing respectfully For the I presented “the merits claims under majority’s from dissent sec- conclusion approximately one hundred and nine head- IIA of opinion tion its has considered,” ings should be and that the dis- consciously relinquished right appellate his trict hearings court’s “failure to allow and to of all review of the claims contained his findings make and conclusions as to all of the 35(c) Crim.P. motion the trial court dis- by ruling claims covered issue here ground missed on the 35(c) such claims had Rodriguez’ right violated Rule Mr. previously I litigated. been concur process to due under the federal and Colora- majority opinion.' remainder of the do Constitutions.” Despite Rodriguez’ he statement dissenting: Justice LOHR seeks this court’s review all of the issues postconviction proceeding In this relief 35(c) asserted in his Crim.P. motion and dis- majority upholds under Crim.P. previously missed district imposed death sentence on Frank D. Rodri- litigated, majority “Rodriguez’ states that guez first-degree for conviction of murder specifically appeal failure to reassert stemming killing from the of Lorraine Mar- all of the claims which the court district proceedings telli. I would hold that the disposed previously litigated of as on direct up jury led to the determination that the appeal relinquishment constitutes a conscious penalty imposed fatally be death should were of those claims which he does not reassert.” and that sentence to must flawed the death Maj.op. majority 249. The cites no au- respectfully .1 be vacated.1 therefore dissent. thority apparent the specific for rule that post-conviction proceedings issues in raised 35(c)

by a defendant’s be Crim.P. motion will I. appeal if deemed abandoned on the defen- appellate dant’s brief to all refers such issues A. restating such

instead of each issue. Such qualitatively is differ sentence to death require lengthy rule of would course more punishment ent from other because its briefs. finality. unique severity E.g., Lockett v. and 604, 2954, Ohio, 586, language The brief refutes 438 U.S. 98 S.Ct. 2964- (1978); 65, majority’s may the v. North conclusion. While silence 57 L.Ed.2d 973 Woodson 1, Rodriguez, accept by contrary Issue as framed the if I could the conclusion contains Even language: following "THE DISTRICT COURT’S by majority would reached the I cannot —I —and THAT AL- RULING MR. RODRIGUEZ HAD require a district for further remand to the court READY HAD APPELLATE REVIEW OF MANY hearings, findings, and conclusions. infra HIS CLAIMS IN POSTCONVICTION MOTIONS part II. WAS ERRONEOUS.” 324 ”

Carolina, 280, 303-05, 2978, Maj. op. formance of several criminal acts.’ 96 S.Ct. 428 U.S. 2990-92, (1976); People Bradley, 169 People (quoting v. Colo. 944 v. at 283 49 L.Ed.2d (1969)). (Colo.1990); 262, 265, 199, Tenneson, 786, 200 In this P.2d P.2d 791-92 (Colo. observes, Drake, case, majority 1237, сonspira as the P.2d the People v. 1988). reason, cy acts criminal both the United extended several For this see, Court, e.g., support only single Supreme convic Mills Ma therefore could States 383-84, 1860, than three that conspiracy for rather ryland, 486 108 S.Ct. tion U.S. (1988), Maj. 1869-70, imposed. op. at 283. L.Ed.2d 384 this were see, Tenneson, court, 791-92; e.g., 788 P.2d at

Drake, repeatedly have C. heightened emphasized need for sentenc Yet, ing reliability capital cases. after jury permitted The to consider the was acknowledging proper that the district court part felony as evi- murder conviction ly upon the convictions Rodriguez’s vacated certain of penalty phase at the dence may arriving which the have relied in Specifically, the was instructed trial. death, majority upholds the sentence to felony murder conviction did not Maj. op. at 285-86. The that sentence. aggravating an factor “[e]x- itself constitute opinion, majority’s holding, my by alleged [felony violates cept required mur- factor_”2 general, requirement constitutionally-based IV, aggravating R. at v. der] sentencing reliability misapplies (this rele will be pp. form of reference prece Supreme vant Court United States throughout to cite to the volume and used case). dent. page of the record in this number Nevertheless, majority that Rod- reasons B. need be riguez’s death sentence over- turned, admitting after evi- post-trial proceedings under Crim.P. even felony supporting murder Rodriguez’s district vacated convic dence the vacated Martelli, supports” aggra- “also one of the felony for murder of Lorraine conviction tions i.e., jury, conspiracy second-degree kidnap vating factors found “inten- to commit aggravated tionally causing person of a in the ping, conspiracy to commit death felony The court course of or in furtherance motor vehicle theft. vacated the therefrom, § flight 16—11— felony his immediate murder conviction because Maj. op. majority first-degree 103(6)(g).” mur at 284.3 The also been convicted of had deliberation, by hypothetically re- supports Martelli after its conclusion der of Lorraine process constructing jury’s im deliberation and two murder convictions cannot be single distinguishing Mississippi, posed killing E.g., victim. Johnson (Colo. Glover, 578, 108 S.Ct. 100 L.Ed.2d 575 People v. P.2d (1988). 1995). Maj. op. at Because it conspiracy convictions were va 284-86. ‍​‌​​‌‌‌​​‌​‌​​​‌​​​​​​​​​​‌‌​‌​‌​​‌‌‌‌​‌​‌​‌‌‌‌‌‍impossible appellate had for an court to recon- cated because been convicted process, charge relating jury’s a conspiracy the struct deliberation and be- on another and, question, majority the the of in as the ma cause misreads Johnson chain events “ notes, precedent statutory jority ‘conspiracy single a in view of the role of constitutes Colorado, offense, jurors upon respectfully in I must dis- although agreement the which IX(F) parts majori- XIV the charge contemplates per the sent from of the is founded second-degree kidnapping defining conspira- penalty phase 2. the commit The instruction felo- ny aggravating cy first-degree aggravated murder read: motor vehi- factor to commit supports aggravating factor cle theft also another one, a class The Defendant committed class case, i.e., "intentionally killing a in found this two, felony and the of or class three in course kill, agreement person in furtherance of an felony, the he inten- or in the furtherance of 11—103(6)(e).”Maj. op. Although § at 284. 16— tionally person of the death a other caused in see no need to address this contention view I participants. than one the of my implications stemming of of resolution the IV, p. at v. 774. R. conviction, felony from the vacated murder provides support majority’s additional assertion majority sup- 3. The also that the evidence admits today. my position conspiracy porting the for vacated convictions for opinion proper’ ty ground, and its of the must resolution corre- we remand for resen- (citations omitted). tencing.”) 13,130, sponding issues 131.4 Johnson,

Second, 586, at U.S. 1986-87, Supreme S.Ct. at United States 1. penalty Court vacated a was death stemming based on an aggravating factor First, majority plausibly aspects of whose terms described 578, Mississippi, background properly the that 6. See also Johnson v. 486 U.S. defendant's were 581, 1984, 1981, jury accuracy 108 S.Ct. 100 L.Ed.2d before the 575 and whose was unchal ("The (1988) 24, supporting aggra lenged."); sole the id. n. 103 S.Ct. at n. evidence at 887 2748 (“Petitioner that, vating petitioner acknowledges circumstance had 24 if an that been invalid felony involving statutory sup ‘previously aggravating convicted of a the circumstance were person ported by properly or threat of violence to the of another' material evidence not use before copy petitioner’s jury, presented. of of the consisted an authenticated a different case would be Reception to Center in We need in this case the commitment Elmira not decide whether following County, impaired his death be in cir conviction in Monroe New sentence would other 285, any maj. significant more than finds eircumstances precedent, op. at the Johnson circumstance, Johnson, reference, to balance single such or opinion’s in support that 9,108 9, against mitigating circum- aggravating n. at 1989 n. to at 590 S.Ct. 486 U.S. any special to stan- 862, pursuant stances holding Stephens, Zant v. 462 U.S. the of 2748, .... dard 77 L.Ed.2d 108 S.Ct. (1983), penalty con- affirmed a death which despite aggravating of Instead, Supreme an Georgia

viction invalidation ... as the underlying us, the evidence unambiguously circumstance where the has advised Court questionable aggravating merely performs cir- the supporting aggravating circumstance an- narrowing category admissible and of cumstance was otherwise the function of the eligi- un- are aggravating circumstance remained murder who persons other convicted of penalty. for ble the death disturbed. (footnotes 873-75,103 at at 2740-42 Id. S.Ct. However, distinction between Johnson the omitted); 871-72, at also at 103 S.Ct. see id. application support not an of and Zant does Indeed, as noted in Justice Mar- Rodriguez’s 2739-40. precedent It Zant to case. the Zant, very premise in of “[t]he shall’s dissent is that in Zant the United States Su- true today adopted that theory ‘threshold’ is the

preme although “the fact Court held that statutory aggravating circumstances are aggravating [invalid circumstance] the upon by jury reaching in ulti- the its weight relied gave [otherwise added instruction decision, sentencing mate but are considered felony no prior convictions] doubt admissible deciding only in whether the defendant is in of played some role the deliberations some penalty.” at eligible to receive the death Id. Zant, jurors,” at at 462 U.S. S.Ct. (Marshall, J., at dissent- J., 103 S.Ct. concurring), invalidation (Rehnquist, (emphasis original). in ing) aggravating of that was an circumstance on otherwise admissible evidence based words, Georgia the death In other under in the not result vacation of death would penalty statutory scheme under review Georgia’s penalty penalty death statu- under Zant, only purpose jury’s finding of a cir- tory aggravating where other scheme aggravating an circumstance was make intact, id. at cumstances remained 871-72, eligible. death Id. the defendant However, (majority opinion). at 2749 2739-40, 2740-42, S.Ct. 873-75, 914, 103 S.Ct. by noting began the Court its assessment Therefore, aggravating an cir- where depends on function of answer “[t]he questioned, but cumstance was invalidated aggravating jury’s finding of circum- an was ad- underlying evidence otherwise capital sentencing Georgia’s stance under missible, jury indepen- and where the made statute_” 864, 103 at 2736 Id. at S.Ct. findings aggravating of other valid fac- dent added).7 The Court then de- (emphasis tors, there see id. at 103 S.Ct. jury’s finding aggra- function scribed penal- no to invalidate the death was reason Georgia vating circumstances under law ty; requisite jury finding made limited: notwithstanding the aggravating factor one factor, States, aggravating invalidation of another Georgia, unlike some other any any jury evidence give spe- and the never considered not instructed voting penalty they aggravating for the death weight circum-

cial stance, not have The multiple aggravating otherwise would considered. consider 410, 414-15, cumstances, Stephens, finding jury’s example, if the firm. Zant 416-17, for 1856, 1857-58, 1858-59, 72 materially S.Ct. aggravating circumstance relied an (1982). information.”) (cita Court misleading L.Ed.2d 222 reasoned: inaccurate or omitted). may implicit tions is a determi- It be that rule findings ag- multiple statutory nation that gravating superfluous, circumstances are or a Su- the first review United States On Court, reviewing may case determination preme the Court remanded the the sentenc- Georgia explanation assume the role when Supreme for an Court ing jury penalty the death under that invali- recommended "premises” and a rule "rationale” legally aggravating would erroneous instructions. circumstance dation one 415, constitutionally S.Ct. 1858. in- Id. at 102 at render a death sentence not majority’s reasoning addition, in this case mirrors in requires jury the the law the to maj. in op. weigh result Zant. See at 285-86. aggravating the circumstances against mitigating the circumstances when However, because the in Court’s rationale it penalty decides whether or not the death fundamentally Georgia’s Zant was based imposed. should be framework, penalty statutory death the Id. at n. at 2741 S.Ct. n. 12. Court pains holding took to limit to its cases penalty statutory Unlike the death scheme jury’s finding where a aggravating factors Zant, under examination in Colorado simply does function, the eligibility served death “[wjhether require jurors to determine suffi- questioned any applicability to cases cient mitigating factors outweigh exist which jury where a weigh was further to instructed any aggravating factor or factors found to aggravating against mitigating factors fac- 16-11-103(2)(a)(II), § exist.” 8A tors: C.R.S. (1986).8 Finally, deciding we note in express opinion

case we do not con- Supreme United States Court re cerning possible significance Zant, of a question hold- viewed the in reserved ing 890-91, 103 2749-50, particular aggravating that a circum- U.S. at in S.Ct. at Clem statutory Mississippi, stance is ‘invalid’under a scheme ons v. 494 U.S. 110 S.Ct. in judge (1990), which jury specifically is 108 L.Ed.2d 725 and left no weigh statutory instructed to aggravating majority’s doubt that the resolution of issue Clemons, mitigating in exercising circumstances thirteen is incorrect.9 In the Mis its impose sissippi Supreme discretion whether to the death upheld pen Court a death penalty.... Georgia’s alty Under sentencing despite questions surrounding one of scheme, judge’s under aggravating the trial in- several circumstances. 494 U.S. case, 743-44, suggestion review, structions in this at no is 110 S.Ct. at 1445-46. On presence Supreme made that the of more than one United States Court noted the question Zant, aggravating given circumstance be in should reserved at special 2749-50, weight. prefaced at S.Ct. its discus by distinguishing Mississippi’s statutory sion 890-91,103 Indeed, Id. at S.Ct. at 2750. penalty death scheme: compared Georgia penalty Court death In Mississippi, Georgia unlike the scheme statutory approaches scheme of other Zant, finding aggrava- states, considered at 873 n. see id. 103 S.Ct. at 2741 part ting jury’s is sentencing factors distinguished n. statutory those other determination, required and the is schemes: weigh against any mitigating factors eases, In each these State Su- aggravating circumstances. preme set Court aside a death sentence Clemons, aggrava- based on both valid and invalid 494 U.S. at S.Ct. at (footnote omitted). ting Respondent explicitly circumstances. advances The Court then support rejected upon majori- these his contention cases the rationale which ty case, required that a result similar here. resolves issue thirteen in this see However, 284, 285-86, maj. op. examination of relevant state and held where States, an aggravating statutes shows that each of these factor is invalidated but an- remains, only aggravating must the find least one other faсtor “[a]n auto- aggravating weighing in order to matic circumstance have rule of affirmance State Ohio, impose sentence; power would under the death be invalid Lockett necessarily analysis applicable REQUIRES 8. This is not TIONS THAT THE DEATH SEN- TENCE UPON BE BASED THEM VACATED. penalty amendments Colorado’s death 16-11-103, (1995 THE MOTOR VEHICLE THEFT AND § statute. 8A C.R.S. CONVICTIONS, "CRIMES OF VIOLENCE" Supp.). AND THE DEATH SENTENCE BASED ON THEM, ALSO ARE ILLEGAL SINCE THEY Issue reads: thirteen ON ARE BASED THE MURDER CONVIC- THE ILLEGALITY OF THE FIRST DEGREE TION. Appendix maj. op. TWO MURDER AND CONSPIRACY CONVIC- 328 Instead, 2954, capital trial 586, the record of a 57 L.Ed.2d 973 all.

U.S. 98 S.Ct. Oklahoma, (1978), (including sentencing hearing conducted Eddings 455 a and v. U.S. 869, (1982), 104, reporter) might it a as well be 71 L.Ed.2d 1 before court 102 S.Ct. court, which give shipped appellate the individualized to the then would not defendants appropriate sentence would result from actual re- would determine the treatment that mitigating factors and in the weighing of the mix of first instance. Clemons, aggravating 494 circumstances.” 762-63, 110 at 1455-56. Id. at S.Ct. Justice 752, Although at 1450. the U.S. at 110 S.Ct. pointed out the fundamental Blackmun then constitutionality of approved the harm- Court allowing reweigh appellate in courts flaw analysis reweighing or actual of less error factors, mitigating empha- aggravating and mitigating by aggravating and circumstances sizing Supreme that and the “both this Court sentences, appellate reviewing death courts Mississippi repeatedly empha- have Court of 1448-49, 748-50,110 the Court id. at S.Ct. at institutionally are appellate sized that courts judgment penalty and re- vacated death fulfilling functions incapable of the distinct reweighing, if proper the case for a manded juries,” performed by judges trial id. at and law, Mississippi by the appropriate under (footnote 765,110 omitted), and at 1457 S.Ct. 752, Court, at 110 Mississippi Supreme id. concluding approval majority’s that of The took care to note S.Ct. at 1450. Court reweighing aggravating miti- appellate of and permissibility appellate an court’s that the of gating in face “flies of circumstances aggravating mitigating and cir- reweighing of prior concerning warnings the insti- Court’s supreme for state courts to cumstances was courts,” appellate id. at tutional limitations decide, recognized and such courts (footnote omitted).10 773, 110 at S.Ct. 1461 might reweighing or harmless conclude Mississippi apparently Supreme The Court “extremely analysis speculative or error was Blackmun’s concurrence and found Justice

impossible.” 110 Id. S.Ct. convincing Mississippi’s in view of dissent dissent, statutory penalty four mem- scheme. On remand In a concurrence and death Mississippi issue the ma- for a better articulation bers of Court took with ag- reweighing aggrava- jority’s approval reweighing Supreme Court’s mitigating ting mitigating and gravating and circumstances circumstances other rationale, 756-74, began by delineating 110 a appellate courts. Id. at S.Ct. that court (Blackmun, J., dissenting). question: at 1452-62 Jus- threshold cogently tice Blackmun wrote: [Preliminary any attempt we make on clarify analysis uphold- in remand to our upon jury’s part in If a verdict rests sentence, decide, ing the must death we impermissible aggravating constitutionally law, authority of state our as matter factor, appellate up- the State’s reweigh aggravating mitigating cir- upon sentence based its holds death in uphold cumstances order to death reweighing legitimate aggravating own upon part in an sentence which based circumstances, mitigating appel- aggravating improperly defined circum- court, sense, ap- in real has late stance. proved jury. or affirmed the verdict of (Miss. State, Rather, reviewing court in that situa- Clemons 593 So.2d 1992). citing statutory require has itself the role of After tion assumed for penalty logical implication jury impose the of the ment that a death sentencer. reviewing other elements of the Missis majority’s approach is that no trial-level scheme, statutory penalty sentencing sippi be death procedure need conducted (Miss. 1992), statutory Although acknowledged and our own this court Clemons So.2d penalty requirement jurors engage Mississippi, in U.S. 110 S.Ct. death Davis, (1990), weighing aggravating mitigating People v. cir P.2d the cumstances, L.Ed.2d denied, l-103(2)(a)(II), (Colo.1990), § 16-1 8A C.R.S. rt. 178-79 ce (1986), (1991), reject explicitly we we should notion 111 S.Ct. 112 L.Ed.2d 656 engage reweighing, equipped engaging appellate appellate are courts refrained from Davis, statutory province weighing process point, that is the at 179. At this with the P.2d Clemons, jury. benefit of both the remand

329 2739-40, 2741-42, 2762, Supreme to at court found the Court’s invitation S.Ct. Colorado’s aggravating mitigating reweigh penalty just and circum death not statute aims to narrow held: precluded prisoners, stances and death-eligible the class of but re by things only jury, quires jury clear: the the step are additional that the then [T]wo decision, aggravating factors, can impose weigh against mitigating unanimous the death circumstances, Tenneson, see, 791, penalty; aggravating e.g., 789, as to at 788 P.2d only authority has the precludes jury this Court to deter- a of death verdict unless “[tjhere supports mine whether the evidence mitigating are insufficient factors to statutory jury’s judge’s finding outweigh aggravating factor or factors aggravating au- circumstance. There is no proved,” 11—103(2)(b)(II)(B), § that were 16— thority reweigh remaining (1986). for this Court to analysis, 8A C.R.S. In the final aggravating when circumstances it finds penalty statutory Colorado death scheme is improperly one or more to be invalid or Clemons, that Mississippi, like see 593 defined, authority nor is there for this 1006, aggrava at weighing So.2d in that after support proper Court to find evidence to ting mitigating jury factors “the makes aggravating definition of an circumstance the ultimate individualized decision on wheth by uphold order to a death sentence appropriate penalty.” People er death reweighing. Finding aggravating and mit- IV), Rodriguez (Rodriguez circumstances, them, igating weighing denied, (Colo.1990), cert. 973 498 U.S. are, ultimately imposing a death sentence (1991); S.Ct. L.Ed.2d see statute, a properly left to instructed (“All Tenneson, also 788 P.2d at 795 of the jury- foregoing considerations and authorities con 1006; accord, e.g., at support 593 So.2d State v. tribute to Colora conclusion that Moore, (Tenn.) (“While penalty 614 S.W.2d death do’s statute must be construed proof require jury of these convictions was admissible to that the must be convinced purposes upon other than mere reflection beyond any mitigat that reasonable doubt credibility, properly these crimes not were ing outweigh proven not statu factors do qualify aggravating shown as circum tory aggravating factors a sentence to before 2404(i)(2). § (footnote omitted). stances under T.C.A. Yet imposed.”) death can be 39— they purpose very were offered for that penalty process applicable the death Under jury was did instructed one them Rodriguez, process weighing and deci way knowing qualify. The Court has no firm implement sion to a death sentence are jury imposed the whether the would have hands, ly jurors’ § 16—11— within the they penalty permitted death had been 103(2)(a)(II), -103(2)(b)(II)(B), 8A C.R.S. weighing so evidence in their consider this (1986), jury’s judge and a considers denied, process.”), cert. 454 U.S. clearly only has the verdict to be erroneous (1981). my S.Ct. 70 L.Ed.2d 388 authority to life to sentence the defendant opinion, statutory penalty death the Colorado 11—103(2)(c), imprisonment, § 8A C.R.S. 16— merits same conclusion as that scheme (1986). Clemons, reached in 593 So.2d at 1006. jury Rodriguez’s case found six Maj. op. aggravating at 284. factors. occasion, IV, ag- court invalidated the this court described On another statutory penalty gravating as factor that the commission Colorado’s death scheme “ heinous, cruel or de- multi-step process, jury ‘especially must crime was where the ” praved.’ (quoting 982-83 “if least the statuto 794 P.2d at determine first one of (1986)). exists,” Tenneson, § Never- 16-ll-103(6)(j), 8A ry aggravating factors C.R.S. l-103(2)(a)(I), theless, that inclusion of (citing § this court concluded P.2d at 789 16-1 -103(6), (1986)), aggravating the invalid factor was harmless C.R.S. so to narrow 8A error, subjected the evidence persons may emphasizing be after group who However, sentence, noting id. at 791. was otherwise admissible the death scrutiny aggravating fac- statutory had found five other unlike scheme under 983-84; maj. Zant, 871-72, 874-75, 914, op. 246- Id. at see 103 tors. also my subsequently ly Rodriguez’s n. 4. vacated felo- I continue adhere to dissent jurors majority’s Although IV ny that the harmless murder conviction. analysis more than a may aggravating error amounted “no their factor have reached might guess what the have decided independently, as to we will never conclusions properly it Id. at 1000 had been instructed.” felony they whether arrived at their know (internal (Lohr, J., dissenting) quotation aggravating factor conclusion based murder Zant, omitted); marks citations also and see analysis whether on full and discussion or (Marshall, 462 U.S. at 103 S.Ct. they simply the existence of found automatic (“There J., way no for dissenting) simply is aggravating that factor on the afore- based jury this Court to know whether the would assuming jury Even mentioned instruction. respondent if the have sentenced to death jury the relevant in- that the did not read statutory aggravating unconstitutional cir- require finding to an automatic of struction cumstance had not included in the been felony aggravating a the existence of murder important judge’s charge. If it for the is factor, may the convictions themselves have the to prosecution authorize for State by jury during been the their considered particular request the of a statu- submission aggravating factors decisions lend certain tory jury, aggravating circumstance to the greater importance weighing process. in the assume that in some cases [that ‘we must reasons, majority in For errs focus- these [jury’s] be in the circumstance] will decisive ing admissibility underlying on the of life choice between a sentence a death potency disregarding the of the evidence and ”) Florida, (quoting sentence.’ Gardner v. convictions. actual 349, 359, 1197,1205, 51 97 S.Ct. L.Ed.2d U.S. J.)). short, (1) (1977)(Stevens, existing this court’s invalida- in aggravating tion one factors this Regardless, majority mistakenly insists (2) IV, case, 982-83, 794 P.2d at benign only implications that stem from questions surrounding two the admitted oth- Rodriguez’ duplica- trial court’s vacation of aggravating potential their er factors and majority’s affirmance tive convictions and the (3) invalidity, maj. op. at the United Maj. op. The of that vacation. at 284-85. Zant, Supreme suggestion in States Court’s majority the vacation of Rodri- characterizes Johnson, Clemons, in see discussion su- guez’ duplicative convictions an innocuous as 1(C)(1), pra potentially part that a erroneous technicality, underlying in that all of the aggravating finding, circumstance even when supporting the vacated convictions evidence evidence, ren- based on otherwise admissible Maj. op. at 285- was otherwise admissible. jurors’ ders a death sentence infirm when the however, supra part As I have indicated statutory weigh aggravating is to cir- role 1(C)(1), analysis ignores majority’s circumstances, against mitigating cumstances jurors in responsibility capital in cases together disregard preclude the continued weigh aggravating factors Colorado the fundamental errors of law this case mitigating existence of against factors. The error,” under the banner “harmless Rodri- jury a conviction can itself result IV, all, guez 794 P.2d at 983-84.11 After exists, concluding aggravating factor an jury instruction in this case directed that regardless general admissibility “ jurors sufficient miti- ‘[i]fone or more finds underlying example, For evidence. gating outweigh factor or factors exist that specifically instructed in this case was factors, specified aggravating factor then did not themselves constitute convictions imprison- a sentence of life circumstances, result is “except re- aggravating ” ” IV, ment.’ 794 P.2d at 981-82 alleged felony aggra- quired by the murder 15). added). (quoting Jury Instruction No. (Emphasis Rodri- vating The factor. case, guez’s aggravating factor in- with one may interpreted this instruction alone have validity require they validated and the of another two find existence of a aggravating preserved only hy- felony aggravating sole- factors murder factor based maj. op. majority The reason that the errors terra. See 284-86. seems to harmless, although it were does use jury’s verdict, pothesizing process, reach a death delibеration sentence I would va- only aggravating it Rodriguez’s penalty three factors remain and cate death and remand reweigh imposition impris- unreasonable for the life sentence to aggravating mitigating factors or contin- onment.

ue impact to dismiss this as harmless error jurors’ considering ag- weigh mandate to II. gravating against factors mitigating factors Assembly ju- General mandated that they impose before a sentence of death.12 capital weigh aggravating rors in cases fac- Even if the evidence was otherwise admis- against mitigating tors factors before render- sible, jurors’ weigh aggrava- it is the role ing 11—103(2)(a)(II), § death sentence. 16— factors, ting appellate and an no court has (1986). jurors obligat- 8A C.R.S. Where are way discerning jury of what the of use made weigh aggravating mitigating ed to and fac- improper finding in convictions the existence sentence, imposing tors a before death the aggravating of certain factors. This funda- tipped aggravating balance can be when an problem particularly mental is the acute in questioned, factor is or even if invalidated capital case, requires context of a a which aggravating valid another factor remains and heightened degree reliability. sentencing of underlying the is evidence otherwise admissi- In applicable view of the United States Su- circumstances, quali- ble. In such are there preme precedent, questions the sur- Court tatively implications comparison different in rounding aggravating several factors this statutory simply requires to a that scheme case, the invalidation “especially of the hei- jurors aggravating whether determine one nous, cruel, depraved” aggravating factor circumstance in order for criminal exists a by jurors, upon relied the and this state’s eligible. become death requirement statutory penalty ju- death that exclusively weigh Although rors fac- aggravating must this distinction not does attract against mitigating they support majority tors factors before the of a of this court’s legal concept complicity, In to the addition above-described infirmities even of because if 12. Martinez, jury’s findings you aggravating in the of fac- certain somehow believe David tors, reliability [Rodriguez], deliberately jury's aggravating the of the fac- stabbed Lorraine death, [Rodriguez] guilty by Martelli to tors determinations is weakened further the is still of degree complicity after He trial invalid The first murder deliberation. court’s instruction. guilty Rodriguez accomplice as an majority agrees Instruction Num- with that the trial you. ber makes that clear to instructing jury "complici- court erred the on XXXI, my p. opinion, R. at v. In reliance ty” 24. this that ”[t]he defendant must have had knowl- majority's disposition alone casts in doubt the of edge person other that the intended to commit issues and 131. Maj. part op. all or the of crime.” majority by support added). The finds further reason- (emphasis points Rodriguez that out returning ing guilty that "in a on the verdict jury this because of erroneous instruction "the first-degree charge conspiracy of to commit mur- Rodriguez first-degree could the convict of mur- deliberation, jury necessarily the der after found only agreed der of Martelli if he Lorraine even promote specifically intended to assault,” maj. op. majority her but the first-degree the of or facilitate murder Lorraine mistake dismisses the instructional as harmless However, Maj. op. major- at 277. the Martelli.” error, maj. op. at 276 n. ity's reasoning regard If is circular. the conclusion, support of its the harmless error was allowed to convict of first- first-degree majority argues that the con- murder degree complicity murder on a based instruction supported by points record viction is but hypothetically allowed the conviction to be (1) Thomas, testimony was Patricia which knowledge Rodriguez’s founded on mere of an contested, (2) evidence, blood which no casts assaultive, alleged co-perpetrator’s but not mur- light knowledge had re- derous, on whether intentions, conspiracy to commit alleged garding co-participant's the extent of an murder conviction have been on the could based Maj. op. intentions. first-degree murderous 276-277. potentially improper murder convic- majority's complicity dismissal of mis- reviewing way tion and a court has no of assum- surprising considering ing jury necessarily specific take as harmless error is found mur- prosecution’s Rodriguez's part reliance on that instruction intent on rather than derous during closing arguments: knowledge "part" alleged simple of an co- Ill, very conspirator’s 572-73, pp. Instruction [L]ook at Number It's intentions. See R. at instructions). important (applicable has to instruction. It do with rule, the ma- relying on its reassertion members, only it is not the issue concern addressing requested jority claims that relief avoids several in this case. Absent penalty, by this case court as raised of the death were dismissed district vacation though district court for appeal remanded even should be and resolved direct hearings evidentiary resolution they this court on were not addressed 35(c)(3)requires that issues. Crim.P. appeal. ruling several on the example, For such “[ujnless motion, and the files and record the motion court re- postconviction the district to the satisfaction of the case show jected appeal on direct raised and resolved prisoner is not entitled to court that Rodriguez’s contentions that: relief, copy cause said the court shall THE TRIAL VIOLATED COURT prosecuting attor- motion be served on the AND DENIED THE DEATH STATUTE thereon, hearing ney, grant prompt PROCESS OF MR. RODRIGUEZ DUE necessary take whatever evidence is RE- BY THE STATE LAW GRANTING (Emphasis add- disposition the motion.” AND ARGUMENT BUTTAL CLOSING concern, ed). efficiency recognize I is a ALLOW MR. BY REFUSING TO ROD- penalty of death is irrevocable but ARGUMENT RIGUEZ SURREBUTTAL imposed in of adherence must not be absence ARGUMENT [sic]. presented by our rules procedures to those (R. 157). full and fair consideration of I, to assurе p. at v. my contentions of error. defendant’s DENIED HIS MR. RODRIGUEZ WAS following opinion, issues warrant more the PROCESS, THE DUE RIGHTS UNDER

thorough on the merits or a re- discussions JURY, BY AND TRIAL CRUEL UN- hearings evidentiary pursuant mand for PUNISHMENT CLAUSES USUAL 35(c)(3). Crim.P. BE- AND THE DEATH STATUTE THE COURT CAUSE SUBMITTED A. THE A AGGRA- “KILLING WITNESS” majority group as a 110 of The considers JURY, THE FACTOR TO VATING by postconviction claims raised Rodri- the NEITHER THAT FACTOR WAS SINCE rejected by court on the guez and the district APPLI- NOR LEGALLY FACTUALLY they previously had been raised basis that CASE, AND CABLE TO THIS SINCE Maj. op. at appeal. on direct and resolved TO THE JURY THE INSTRUCTIONS ninety-two disposes of of those 248. It FACTOR WERE MANI- ON THAT by concluding that decided claims FESTLY INCORRECT. appeal them this and to reassert on not 163). (R. consciously relinquished I, them. p. at therefore v. Maj. op. the at 248^19. This overlooks basis THE OF THE “UN- SUBMISSION error, is Rodriguez’s of which of assertion DER OF IMPRISON- SENTENCE erred con- simply the district court that MENT” AGGRAVATING FACTOR WAS of cluding, hearing on the merits without IMPROPER, NOT AP- IT DOES SINCE claim, previous- had that the claims been the PLY LEGALLY OR TO FACTUALLY appeal.13 It on direct ly raised and resolved CASE, IF IT INTER- THIS AND IS SO merit of the claims that is issue is not the APPLY PRETED AS TO ARGUABLY here; the correctness the district it is CASE, IT THE IN THIS VIOLATES previously ruling the claims were court’s that AND AND DUE CRUEL UN- PROCESS is appeal on that

raised and resolved direct PUNISHMENT CLAUSES OF USUAL properly us. This issue has been now before AND THE FEDERAL COLORADO present appeal, by Rodriguez the raised CONSTITUTIONS. majority’s I to the refusal dissent (R. 163). I, p. at v. it. address WAS Rodriguez’s ER- HIS POSTCONVICTION MOTIONS Specifically, issue one reads: 13. RONEOUS. RULING THAT THE DISTRICT COURT’S op. ALREADY HAD AP- Appendix maj. MR. HAD RODRIGUEZ A to IN REVIEW OF MANY CLAIMS PELLATE permitted THE THE REFUSAL OF COURT TO to assist the district court in deter- mining particular whether been CHANGE VENUE IN THIS CASE DE- claims have NIED MR. FAIR TRI- raised and RODRIGUEZ resolved. Crim.P. 35 contem- just procedure: BY plates AL IMPARTIAL AND DUE such a JURY PROCESS OF LAW. Unless the motion and the files and record (R. 171). I, p. case show to the satisfaction prisoner that court entitled The district court dismissed the first of these relief, copy the court shall cause of said by ruling gener- listed claims that this court prosecuting motion to served be on ally closing argument “resolved claims.” R. attorney, thereon, grant prompt hearing I, p. rejected at v. The district court necessary and take whatever evidence is second third these listed claims disposition of the motion. In all holding against that court “resolved cases, shall court determine the issues all other regarding defendant his claims findings make fact and conclusions I, p. R. at instructions.” 159. Simi- respect of law with thereto. larly, the district dismissed the last claim, assertion, by declaring listed a venue 35(c)(3) (quoted Crim.P. parts). relevant broadly explanation: and without further reasons, I For these would one remand issue [Supreme] analysis Court also found that for a more detailed and accurate [Rodriguez’s] appropriate. remaining ninety-two sentence was address the con- issues against It found that the him was tained within one on evidence issue the merits after overwhelming, supported dismissing it amply those were indeed raised result, aggravating factors, jury’s appeal. I resolved direct As a 11(A) mitigating outweigh respectfully part factors did not from dissent aggravating majority opinion and disposition factors. The court also its found Rodri- particularly guez’s was issue murder brutal one. pitiless, the defendant demon- B. remorse, strated no that the defendant had record, a serious criminal and that the 11(D) opinion, majority of In section its the impose did not the the sentence under attack the dismisses issue three as an on passion, prejudice, influence of or oth- constitutionality penalty of the death stat- result, arbitrary er factor. As a this court ute,14 an previously by issue resolved this following concludes that the claims are not Maj. However, at al- op. court. 249-50. in available to the defendant Crim.P. correctly though majority the is- dismisses 35(c) motion. 6, 7, 8, and as on the sues 87 attacks constitu- I, p. statute, R. v. None the tionality maj. 169. of aforemen penalty of the death examples at-, in re majority tioned was fact raised and op. incorrectly the assumes by appeal on solved this court direct in Peo properly that the district court characterized 964, (Colo. ple Rodriguez, v. 794 P.2d 964-65 questions contained within issue three 1990) III), IV, (Rodriguez Rodriguez or 794 constitutionality on redundant attacks 965-91, only by P.2d at penalty cases referenced the death statute. The district court dismissing Rodriguez’s again swept away by general- district discrete issues resolved, I, 110 claims as R. at v. izing broadly: raised p. 155. Supreme previ The Colorado has Court ously 16-11-103, examples 8A illustrate need construed C.R.S.

These (1986 specific findings detailing holdings Repl.Vol.), applicable it here and as more 1, prior July upon court that are relied to establish existed 1988 amend this ments, with each of the 110 claims has been consistent the United States whether hearing People and resolved. A should be and Colorado constitutions. v. Ten raised TENNESON, (Colo. Rodriguez's P.2d 14. three PEOPLE V. issue reads: DAVIS, 1990), AND PEOPLE V. 794 P.2d 159 RULING THAT THE DISTRICT COURT’S (Colo.1990), IS INCORRECT. OF MR. THIS COURT DECIDED SEVERAL op. maj. Appendix IN A to at 304. CLAIMS AGAINST HIM RODRIGUEZ' (Colo.1990); appro- neson, People standard of review v. with the harsher 788 P.2d (Colo.1990), Davis, priate motion. decline cert. de to a successive We 794 P.2d 159. and, 662, nied, grant in- Rodriguez this deference S.Ct. [111 498 U.S. stead, (1991). result, uphold district court’s dismissal the de 656] L.Ed.2d As claims, regardless adequacy constitutionality of of these fendant’s attacks on the upon denied, appeal. presentation as the has of their We the statute are Court following against [in- refuse to review the issues previously them the de resolved forty-four eighty-eight] be- cluding position.... fendant's adequately cause failure I, p. R. at The district court then legal grounds for specify the errors and specific claims asserted Rod detailed the the district court level.... relief at 35(c) motion that the riguez in his Crim.P. previously to have been court determined omitted). (citations Maj. op. The ma- doing so, the court included resolved. 42, jority inexplicably never mentions issues by Rodriguez that were not ad assertions 43, litany or 45 in its of claims Tenneson, 788 P.2d 786- dressed either allegedly as inade- district court dismissed 159, Davis, People 159- or yet quately raised and nevertheless con- (Colo.1990), denied, cert. cludes: (1991), includ 111 S.Ct. 112 L.Ed.2d 656 alleges error in issue ing case-specific motion denials. attacks on postconvic- court’s dismissal of the district unsuccessfully ar example, For tion claims which he now reasserts Is- that, by refusing to gued “[t]he сourt erred 43, 44, Because sues and 88. we qualify judge.” motion to death grant the underlying be inade- hold these issues to I, p. R. at v. 209. The correctness reject quately presented, we Issue ques district court’s characterization Notwithstanding Maj. op. the failure at 252. contained issue three as attacks tions within 42, 43, constitutionality penalty and 45 the discus- the death to include issues the district court sion those claims precisely the issue that statute is raised, with, allegedly inadequately dismissed as concerned and this court should have accuracy, majority affirms the district court’s al- that characterization for reviewed 43, 44, 45, leged of issues and 88 claims in Tenneson dismissal rejecting those settled Maj. op. inadequately raised. at 251-52. addressing the on as and Davis and remainder remanding for such consider the merits However, the district court did not dismiss ation, accepting rather than the district 44, 42, 43, 45, inadequately issues and 88 as face re court’s characterization at value and Instead, the district court dismissed raised. jecting as an attack on the consti issue three (1) grounds, dismissing these claims on other tutionality penalty of the death statute. As forty-four eighty-eight as eviden- issues and result, majori respectfully from the I dissent failing tiary that “forfeited” for issues were in ty’s disposition Rodriguez’s issue three of I, appeal, R. at v. to raise the issues on direct 11(D) majority opinion. part of the (2) 191, 190, in pp. apparently and then the alternative, rejecting claims both of these as C. 42, 43, as nonconstitu- well as issues and 45 majority part opinion, III its the of I, issues, majori- R. 212-13. The tional at 41, 42, 43, 44, 45, rejects and 88 as issues 43, 44, 42, mistakenly ty dismisses issues Maj. op. inadequately at 252. The raised. raised, inadequately unless the and as reasoning in majority its dismiss- describes majority’s independent an characterization is forty-four eighty-eight: ing and claims in which case at least a modicum conclusion analysis explanation summarily or is warranted. See the can of Because district court majority maj. op. the ex- presented to at 250-51. Since inadequately claims dismiss plicitly rejects it, ap- the district court’s waiver such issues on our consideration of 20, rule, maj. forty- op. at & n. 253-54 issues peal the district court’s order would eighty-eight be remanded for grant Rodriguez four and should effectively a successive 35(c) majority’s burdening in waiver him consideration view the motion without also pronouncements result, or respectfully this court should review As a I from dissent the forty-one rejection 2, issue on majority’s Rodriguez’s the merits15 and deter- issues 42, 43, 44, 65, 80, 107, 99(A), 99(D), 99(E), 133, 146, mine whether issues and 88 properly were dismissed in the as part alternative within IV of contained the reasons, majority opinion.16 nonconstitutional issues. For these respectfully I majority’s dissent from the 43, 44, 45,

disposition of issues E. part majority opin- as set forth in III correctly majority The that asserts ion. preserve is on burden the defendant Maj. appeal. op. record for at 260. Howev- D. er, majority possible glosses two over majority acknowledges The that failure qualifications to this rule the context of on appeal raise an issue direct will result not jury questionnaires lost or record ma- other process, an waiver absent abuse of terial, and instead scolds the defendant for process that abuse an is affirmative de- attempting prepare not a statement based pleaded proved by fense to be the state. questionnaires. on his recollections of the Maj. However, op. 253 & n. 20. at 10(c), Maj. op. Pointing at 260. to C.A.R. majority require does the state to meet majority concludes “has not this analytical burden and instead creates an prepared provided such a nor statement this whereby framework a defendant’s failure to specific with court fact or assertions of er- court, reassert claims even where the ror,” and therefore holds that “the record correctly challenges defendant the claims permit us is our before sufficient resolu- incorrectly dismissed district tion which selection issues are faulty principles, level based on waiver con- Maj. properly op. before us.” relinquishment” by stitutes a “conscious First, preserve portions burden Maj. op. majority’s defendant. at 254. The placed not be record should defen- rule, relinquishment” maj. “conscious op. judiciary responsible dant where the itself is 254, particularly surprising considering is destroying losing parts or those majority’s “we admission that have little had question. majority’s record demand standard],” occasion [the to address waiver “ Rodriguez ‘prepare a statement of the and indeed “have addressed the [waiver] proceedings best evidence from the avail- obliquely, only through standard dicta ” means, recollection,’ including maj. able his Maj. op. dismissals of claims.” at 252. Con- 10(c)), op. (quoting complete- at 260 C.A.R. sidering “[t]he case law and dicta which ly unrealistic in context of hundreds of do address the standard are not [waiver] addition, jury questionnaires. lost easily synthesized,” maj. op. at it cannot majority discretionary option transforms reasonably Rodriguez’s be maintained that rules, appellate under see Colorado’s C.A.R. understanding of the standard was such (“the 10(c) may a appellant prepare state- consciously relinquish he could decide to cer- proceedings the or from ment of evidence the failing tain claims in to reassert them now. means, including best available his recollec- my opinion, In the to better course would be tion”) added), (emphasis mandatory into a clarify the waiver standard and remand the obligation. case to the state meet the of allow to “abuse (1995 Second, burden, 13-71-115, process” or to determine whether section C.R.S. 6A process Supp.), adopted the of bur- of the state satisfied the abuse after conclusion trial case, already requires den in this courts to retain all based on submitted materials. forty-one op. Rodriguez's Appendix maj. 15. issue reads: to at 307. 120, 121, agreе majority

THE THAT SEVERAL 16. I with the that issues COURT'S RULING 125, 126, 122, 127, ONLY and 128 are moot CLAIMS CONCERNED "INADE- rendered by QUATE EXHIBITS" AND this court's of the trial court’s FOUNDATION FOR affirmance Maj. op. predicate THEY of the THUS THAT WERE NOT "AVAIL- vacation offenses. ABLE" ERROR. 254-55. WAS judiciary’s ju- por- of mining the loss prospective of whether completed questionnaires this, Rodriguez of recognizes deprived tions the record majority of Although the rors. respect 'to 30, assistance of counsel with n. it no effort effective maj. op. at 259 makes dependent missing on the history any for indica- claims that are legislative examine the statutory I hold that portions of the record. would the revision tions as to whether legitimate that the existing practice legislative Rodriguez has a claim simply or codified judiciary’s jury questionnaires pre- loss of expectations. receiving him effective assis- vented from addition, dismissing majority In the errs regard those claims tance of counsel with Rodriguez’s of counsel ineffective assistance evaluated or that could not be substantiated the regard portions to lost claim with lost material. in absence of the record Leeke, Perry the United States record. qualify I a burden govern- if would defendant’s Supreme determined that Court appeal the preserve the for where actually constructively de- record or mental action responsible portions for judiciary is lost altogether, a nies the assistance of counsel record, question the of lost necessary to es- the and remand showing prejudice is not portions record to the court for of the district a violation of a defendant’s constitu- tablish the defen- hearing a on the issue of whether right of counsel. tional to effective assistance 279-80, prejudice as Leeke, dant suffered a result of has Perry v. 488 U.S. addition, 594, 599-600, (1989); missing this court records. 102 L.Ed.2d S.Ct. maj. Rodriguez’s on the merits op. at As that makes should consider see case clear, claim that he has not received effective assis- of counsel alto- denial of assistance regard claims tance of counsel with gether respect is to be evaluated with dependent upon the lost record during course were individual issues times material, requiring judicial in- without proceedings. Id. For prejudice, dismissing stance, establish rather than when a court such denial resulted part did consulting his claim because from with forbade defendant overnight effective assistance of counsel on cer- attorney during an receive recess reasons, For I tain unrelated claims. these conclusion of the defendant’s direct examina- VI(A), VI(C), States, respectfully parts dissent from tion. See Geders United (1976). majority’s opinion, includ- XVIII 47 L.Ed.2d 96 S.Ct. ing disposition of issues its us, agree I with In the case before do judiciary’s majority’s conclusion that the record, portions including lost loss F. support a claim jury questionnaires, cannot re- of counsel with for ineffective assistance Addressing Rodriguez’s sixty-one, issue dependent gard to claims that were those majority allegations, his if concedes that upon portions of the record. lost true, violation of the would establish a Uni- majority states: Act, Jury §§ form Selection and Service 13- case, present record In the the state (1987), -122, dismiss- 71-101 to 6A C.R.S. but Rodriguez’ altogether prevent did not hearing framing need es the assisting Rodriguez in the counsel from Maj. op. nonconstitutional issues. claims as ap- appeal. preparation of his On direct fundamental errors at 262-63. Because 138-page filed a peal, counsel process implicate can con- selection appendix listing 102 additional brief and an process con- stitutional norms such as due Accordingly, we conclude issues. trial, hearing right cerns or the incompleteness of record did alleged necessary to whether the determine an actual or constructive denial amount to occurred. Crim.P. errors indeed See prejudice be for which would of counsel 35(c)(3). sixty-one to I remand issue would presumed. hearing a the merits the court for district Jury and Rodriguez’s the of Uniform Selection Maj. op. my opinion, number at 303. reason, Act For this I re- Rodriguez’s Service claim. issues in pages and listed majority’s disposi- spectfully from the help in dissent are of no deter- appendix and brief sixty-one, part scope tion issue contained within has to determine discretion the IV(D) majority’s opinion. summarily of the limits of cross-examination and

concludes that its review the record dis- Maj. op. closes no abuse of trial discretion. G. thirty-eight requires at 267. issue Because majority engages cursory analysis The in a the substantive discussion on merits of the thirty-eight, any specific of issue without ref- claim, respectfully I dissent from issue thir- Maj. or erences to the record elaboration. VII(A)(2) ty-eight part majority op. majority at 267. The characterizes issue opinion. Maj. thirty-eight process op. as a due claim.- However, Rodriguez’s thirty- at 267. issue H. eight beyond process ques- extended due thirty-one, Rodriguez issue contends tions: that court in refusing the district erred THE RESTRICTIONS ON DEFENSE grant a continuance so that the defense could COUNSEL’S CROSS-EXAMINATION testimony secure the of Sam Cruz. Cruz AND IMPEACHMENT OF PATRICIA allegedly would have testified that the knife VIOLATED THE THOMAS CONFRON- given by him admitted into evidence was TATION, CRUEL AND UNUSUAL birthday present. as a Patricia Thomas See PUNISHMENT AND DUE PROCESS maj. op. at One Rodriguez’s main CLAUSES OF THE FEDERAL AND Martinez, lines of that David defense was the COLORADO CONSTITUTIONS. Thomas, boyfriend of Patricia was the actual maj. Appendix op. at 307. Within issue killer of Lorraine Martelli. Evidence that thirty-eight, Rodriguez raised several dis- weapon owned the murder Thomas could contentions, including crete that: significant have on Thomas’s cast doubt cred- complete The court trial demonstrated a ibility jury’s regarding and the determination misunderstanding of the im- “collateral during who wielded the knife the murder. peachment” repeatedly rule. The court Furthermore, multiple in view stab refused to allow defense counsel to ask killing, wounds vicious nature directly questions which went the bias of jury’s finding that was killer witness, to her interests and [and] highly prejudiсial could in turn have been in testifying motives as she did.... during sentencing phase of this case. majority that no The reasons there was discovery ... The numerous violations Mary Compos abuse of discretion because totally by by the went state unsanctioned already she had testified that saw Thomas in court, prejudice 'the the enormous to possession of a knife that Thomas received as rights. fundamental Mr. testimony birthday present, Compos’ that grant refusal to a continuance at court’s birthday had the indicated knife any time, delay even the cross or exami- marking model same brand or as the murder of Ms. Thomas after the latest of nation knife, testimony there- Cruz’ would by many attempts these intentional Maj. op. fore been cumulative. at 268- have truth-seeking state to subvert the function However, there is a substantial differ- discovery [through alleged vio- trial testimony pos- that Thomas ence between lations], grant Mr. or even to general sessed a knife with the same brand any to sanction the state when its relief or testimony marking that Thom- model during became evident misconduct lies possessed knife that was used Thomas, pro- fully Ms. the examination of Here, weapon the murder was murder. tected the state’s efforts.... locking uniquely characterized defective v.31, pp. r. at 48-51. Al- Opening Brief at Appellant/Cross-Appellee’s mechanism. (No. 91SA112) 145-46, birthday though Compos People v. testified (March 1995). knife engage knife and the murder had same Rather than claims, only majority markings, could Rodriguez’s brand or model Cruz discussion of given knife principle potentially have testified that the simply trial birthday the same to Thomas for her had mechanism, thereby provid- locking of the State

defective The PEOPLE Complainant, Colorado, knife was ing strong that Thomas’s evidence potential testi- weapon. Cruz’s the murder cumulative evi- mony cannot be considered BERKLEY, Joseph Martin dence, of the crucial nature especially view Attorney-Respondent. testimony prosecution, of Thomas’ for arguing majority disingenuous and the 95SA292, Nos. 96SA48. con- Rodriguez has not shown that the Colorado, Supreme Court of “prevented him from effec- denial tinuance En Banc. Maj. op. at tively impeaching Thomas.” testimony may not Because Cruz’s 268.17 April cumulative, issue I would remand have been hearing regard- thirty-one evidentiary for an testimony

ing potential district con- deny the motion for

court’s decision reason, dis- respectfully For I

tinuance. majority’s disposition of issue

sent from VII(C) part

thirty-one, within contained majority opinion.

III. majori- not address the

This dissent does singled I have

ty’s opinion comprehensively. appear to be most salient and

out issues that im- penalty the death

have concluded va-

posed D. should be on Frank imposition for and the case remanded

cated imprisonment rea- sentence to life

of a At a part opinion. I of this explained in

sons

minimum, rejection con- majority’s of this require remand to

clusion should still dis- of the issues court for resolution

district opinion. For these part II of this

cussed

reasons, respectfully I dissent. iraj. op. analy- hearsay question. contrast, thirty-one, the agree majority’s I with part disposition issue 268-69. the second sis 16-10-202. notes “[a]ll Rodri- but a

Notes

notes “section 16- from subsequently felony overturned con- 11-103 does not require conviction for ei- majority distinguishes viction. The Johnson felony conspiracy ther murder or to commit as a case relating where the evidence to the aggravating murder before those factors are felony inadmissible, conviction was otherwise found,” maj. 284, op. at “[e]ven after the in Rodriguez’s whereas case “the evidence conviction, felony vacation of the murder supporting properly the convictions was be- requirements meets the of the jury” sentencing fore the and was constitu- aggravating factor section found 16-11- tionally Maj. op. at Al- obtained. 285-86. 103(6)(g),” maj. However, op. 284.5 at though majority any does not reference majority way knowing has no what weight specific Supreme United States Court eases jury gave felony murder conviction Johnson, in distinguishing maj. op. see at determining aggrava- the existence 285, reasoning apparently its is based on factor, ting majority nor accurately can the opinion: footnote nine of that importance potentially assess in- 862, In Stephens, Zant v. U.S. aggravating jury’s in the weigh- valid factor 2733, (1983), S.Ct. 77 L.Ed.2d 235 held we Mills, ing process. 376-77, 486 U.S. at Cf. that on the that case facts of the invalida- (“[T]he jury’s 108 S.Ct. at 1866-67 verdict aggravating tion of an circumstance did supported be set aside if it be must could on not, Georgia’s capital sentencing under another, ground one but not on and the scheme, require of the vacation death sen- reviewing court was uncertain which of the reaching holding, tence. specif- we grounds upon by was two relied ically fact that relied on the the evidence reaching reviewing the verdict. support aggrava- death adduced in of the invalid sentences, ting proper- was the Court has demanded circumstance nonetheless even ly sentencing hearing. admissible at certainty jury’s greater that the conclusions Id., 887,103 at at S.Ct. proper on grounds. rested Unless we can Johnson, out the possibility rule substantial that the 590 n. 486 U.S. at 108 S.Ct. may Thus, majority’s have rested verdict on ‘im- 1989 n. 9.6 its dismissal of York, second-degree references The to numbered issues in this dis- for the crime with assault senting opinion presented by first-degree rape,” are to the issues intent to commit a conviction appellate appeal.); review as set forth and that had been Ste reversed Zant v. Appendix majority opinion. phens, numbered in A to 103 S.Ct. 2740- (1983) Appendix maj. op. (describing 303-20. For-the 77 L.Ed.2d 235 how "[t]he uniformity simplicity, [Georgia Supreme sake series of three Court] noted that a different spelled might or more numbers will not be out. if the ‍​‌​​‌‌‌​​‌​‌​​​‌​​​​​​​​​​‌‌​‌​‌​​‌‌‌‌​‌​‌​‌‌‌‌‌‍result be reached failed circum by supported stance had been evidence not oth (1986), 16-11-103(6)(g), admissible”); 5. Section 8A C.R.S. sets erwise 103 S.Ct. at 2747 id. following ("The aggravating forth factor: underlying fully evidence nevertheless [despite aggrava admissible invalidation 1, 2, defendant committed class or 3 ting sentencing phase.”); at the circumstance] and, felony in the of or in course furtherance ("This id. at 103 S.Ct. at case involves therefrom, flight such or immediate he in- circumstance, statutory aggravating invalidated tentionally person caused the death of a other grounds Supreme vague the State Court on participants; than one of the ... ness,

notes

Case Details

Case Name: People v. Rodriguez

Court Name: Supreme Court of Colorado

Date Published: Apr 15, 1996

Citation: 914 P.2d 230

Docket Number: 91SA112

Court Abbreviation: Colo.