People v. Rodriguez

order, findings appropriate with our limited remand cause to the trial court for respect findings law trial court with consti- of fact and conclusions of of the including materiality not limited to whether of the evidence should but tutional may Accordingly, of the evidence be withheld from the we vacate the be vacated. January

defense. If the trial court concludes that of the trial court 1990 order material, constitutionally previously the evidence is sealed materials and return the it must order to the defense. disclosure to this court to the trial court transmitted may The disclosure made under an be to the defendant within ten for disclosure if confidentiality order of such order is days from the date of this order.

requested by prosecution. Any order confidentiality should restrict dis- to counsel for

closure of the information defense, pending review of the order of disclosure this court. ... Even the trial court concludes material, not the evidence is Colorado, The PEOPLE State any part must still disclose the in- Plaintiff-Appellee, prosecution that the formation compelling interest in with- shown a Pennsyl- holding See from defense. RODRIGUEZ, Frank D. 59-61, Ritchie, vania Defendant-Appellant. S.Ct. at 1002-1004. Although upheld we have the nondis- No. 87SA48. identity in- closure of the of confidential under the of interests formants balance Colorado, Supreme Court of eyewitnesses, they test where were not En Banc. 87, 89-90,

People Langford, 191 Colo. May 1990. (1976), P.2d the nature requires the death sentence an extraor- Rehearing As Modified on Denial of competent ev- dinary showing, based July idence, per- nondisclosure can be before mitted. III. permitted The defendant must be proceedings on remand participate in the possible, maximum extent com- spe- the nondisclosure of mensurate with guidelines under the set cific information in this order. forth (em- 786 P.2d at 1082 Rodriguez, People v. added). the record Our review of phasis that there was no us to conclude causes showing compelling state sufficient We therefore in non-disclosure. interest presented in camera materials hold must disclosed to the court to the trial defendant. that because defen- also conclude

We participate to the permitted to dant was possible conformity extent maximum

Justice ERICKSON delivered Opinion of the Court.

This is a case where the imposed penalty the death after an extend- defendant, ed trial. The Frank D. Rodri- jury’s guez, does not seek review of the guilt, only determination of but seeks to penalty imposed set aside the death only jury. appeal issue on is whether penalty phase errors of the trial require that the death be set aside and that the defendant be resentenced to imprisonment. judg- affirm the life We ment and sentence of death. I 14, 1984, at 4:00 On November about defendant, p.m., younger his brother Rodriguez, and David Martinez and Chris Thomas, girlfriend kidnapped Patricia his walking Lorraine Martelli as she was from place her of work to her Chevrolet Monte The defen- Carlo near downtown Denver. compatriots the victim dant and his forced car, the defendant drove into her own and hours, away. period Lorraine Over Martelli was driven around the Denver Mountain, area, far and as west Lookout stopped The defendant her automobile. during purchased the drive with and beer money. Lorraine Martelli’s trial testimony The at established that sexually vic- Rodriguez assaulted the Chris beat, raped, tim first. Then the defendant Martelli in the and sodomized Lorraine During of her Monte Carlo. backseat drive, the victim asked what would become her, Rodriguez told her that and Chris go. they probably let her The defen- would she seen their faces and dant said that had kill her. they had to Woodard, Gen., Atty. D. Dai- John eventually Duane Martelli was driven Lorraine Gen., Section, ley, Deputy Atty. Appellate some ware- to a deserted dead-end near Gen., Petrusak, Atty. Asst. Joan Robert M. plead for tried to houses Denver. She Gen., Denver, White, Atty. for Sp. Asst. C. Thomas, the de- life with Patricia but her plaintiff-appellee. pro- He stupid. called her then fendant twenty- approximately her Defender, ceeded stab Vela, F. State Public David folding knife. Some of eight times with a Heher, De- Deputy State Public Michael J. her neck were shal- Denver, knife cuts around

fender, defendant-appellant. it was killer’s introduced letters written defendant and indicate low jail awaiting he to his her before she died. while was trial intention torture Margie prison- girlfriend Marquez, another Afterwards, and his com- the defendant jail. at the In the letters the er defendant body in the patriots placed the victim’s he Lorraine Martelli. admitted that killed proceeded to of the Monte Carlo and trunk trial, position during to a The both They town. drove defense drive around trial, house, phases apartment guilt the defen- and friend’s where knife that the circumstantial evidence made two-year-old handed the to a dant Martinez, likely knife David not the defen- The child’s mother took the it child. dant, ultimately gave police. Through was the actual killer. Mar- away and away attempted quez, in the defense counsel to estab- The defendant then drove the letters to in search of more beer. lish the defendant wrote Monte Carlo having express purpose her for eyewitness had There been attorney, over to the district letters turned abduction, police and the Denver victim’s reduction of the so she could seek looking The for the Monte Carlo. against her. charges which had been made gave police spotted the defendant and vehicles, guilt later in the in their on foot. retired deliberate chase defendant, Rodriguez, phase 1986 and returned Chris December night. guilty on December others were arrested that with verdicts two guilty found defendant first for the Rodriguez was tried Chris deliberation, first-degree murder after Martelli, capital murder of Lorraine 18-3-102(l)(a), (1986), 8B C.R.S. § imprisonment. to life Peo was sentenced murder, first-degree felony ple Rodriguez, (Colo.App. P.2d 3—102(l)(b). jury The also the found § 18— 1989). pleaded guilty to David Martinez guilty of seven other felonies.1 defendant a second-degree kidnapping and received capital sentencing phase began Patricia Thomas The twenty-year sentence. immunity exchange capital sentencing in given for her December 1986. The was offense, in testimony prosecution. Before the effect on the date of for the statute 16-11-103, 14, 1984, Rodriguez of Frank capital murder trial November was section commenced, (1978 origi subject Supp.). it was the of an 8 C.R.S. & The relevant in parts Appendix reviewed a statute are set out proceeding nal which number noted, pretrial opinion. A to this Rodriguez motions. District Unless otherwise (Colo.1986). Court, A 719 P.2d 699 sub references to section 16-11-103 are to ad of the number of other motions were 1984 version statute. stantial prior to the dressed this court announce to the evidence adduced at addition this opinion. ment prosecution guilt phase, the introduced capital murder trial be- evidence that the defendant his brother The defendant’s raped gan Rodriguez selec- on November 1986 with Chris sodomized The sworn on December which resulted in a sub- tion. was woman phase guilt prison term in 1986 and the commenced. stantial for defendant. Among testimony other evidence of the The showed that defendant defendant’s guilt, killing Thomas testified that and his brother considered the vic- Patricia victim, defendant in 1978. The was in raped sodomized the tim defendant favor prosecution killing identify then her. also her killed because victim could theft, 18-2-201; guilty 1. The found the defendant of first-de- as well as five counts § 18-3-402, assault, gree using during § sexual 8B C.R.S. deadly weapon commission (1986); aggravated first-degree motor vehicle of the above offenses. theft, 18-4-409; second-degree kidnapping, § guilt phase, After close the court 18-3-302; 18-4-302; aggravated robbery, § § hearing. held a habitual criminal conspiracy to commit murder in first de- appealed defendant has not from either the 18-2-201; gree, conspiracy to § commit second phase guilt phase habitual criminal 18-2-201; degree kidnapping, conspiracy § trial. aggravated degree commit first motor vehicle them, Rodriguez just requests but Chris wanted to for only extensions of time and off, drop acquiesced. her and the defendant partial opening filed a brief when we re- grant fused to defense counsel additional prosecution George also called Sta- time prepare 31(a) pro- brief. C.A.R. pleton testify that the defendant shot forty days vides for opening to file an brief point range him at Stapleton blank while after the record is filed. In addition to a days sat his car ten before Lorraine number of extensions of time to file the Martelli was murdered. The permit- court record, supplement record and defense ted the introduction of prior these criminal granted counsel was four extensions to file episodes purpose for sole of establish- opening brief. Defense counsel filed a ing that the defendant killed Lorraine Mar- page partial opening so-called brief prevent telli to her being from a witness protest with a that a complete brief could him, against statutory aggravating not be filed unless additional time was factor. The defendant introduced evidence granted. opening Defense counsel’s brief mitigation trial, at the including a doc- nearly years was filed two after the case ument called Rodriguez “Frank Life —A was prosecu- docketed this court. The History,” that detailed the defendant’s un- tion’s encompassed pages, answer brief happy childhood and growing up his in a “partial” and the reply defendant’s brief poor family. broken pages length.3 was 93 lengthy deliberation, After Subsequently, attempted defense counsel statutory found that six to file an additional brief and has now set doubt, factors existed a reasonable grounds forth a number of additional and that the factors did not out- reversal. weigh factors. The appropriate concluded that death Every ap- case should be determined on

punishment, and the trial court sentenced peal within a A reasonable time. defen- the defendant to death. The death sen- trial, dant is entitled to a fair but not a stayed pending appeal, tence was which is perfect trial. The record this case en- appeal by a direct the defendant from the compasses forty more than volumes. The sentencing phase, appeal and an automatic trial extended over three weeks. Defense of the death sentence under section 16—11— counsel has claimed that a of number 103(7) 4(e).2 and C.A.R. rights guaranteed by to the defendant the United States and Colorado Constitutions appeal, the On defendant has been Accordingly, have been violated. ad- we by has assisted counsel who asserted a preserved dress the issues that have been myriad setting of reasons for aside the appeal length. for at some penalty. alleged ap- The errors peal question the conduct of the trial court prosecution openly charge

and the with II and resulted conduct was overzealous A rights in the denial of the defendant’s to process closing and a fair trial. Defense coun- The defendant contends that the due sel, arguments prosecutors during multiple appearances on behalf of of the the penalty phase trial and on of the trial violated the Due the defendant both the court delay of the federal and appeal, grounds to the Process Clauses Colora- has asserted Constitutions,4 filing right the constitutional this case numerous do resolution of reply appeal, permission brief shall not the this court out of court. A After submission of 2. request prosecution granted pages except by permission of the for a limit a 18 of the exceed People v. to the trial court. See granted ed remand court. The court both the defense and (Colo.1989). pro Rodriguez, P.2d 1079 page prosecution limits motions to exceed completed. ceedings been in the trial court have rule. set forth in the (Colo. Rodriguez, 794 P.2d 964 See 1990). Const, Const, XIV, 1; amend. Colo. art. § 4.U.S. II, § 25. principal 28(g) provides briefs C.A.R. pages parties not exceed 30 with- shall of both (1986), reinstated, 809 F.2d against L.Ed.2d 732 jury,5 prohibition and the trial (11th Cir.), denied, 1010, particu- In punishment.6 cert. cruel and unusual lar, separate (1987). in- twenty-three 3240, he refers to improper argument alleged stances This is a case in which the closing arguments prosecutors during to death. Be defendant was sentenced trial. The sentencing phase of the punishment qualitatively is a cause death contemporaneous did not make defendant other, Ohio, 438 unlike Lockett v. arguments majority of the objections to the 2954, 586, 2964-65, 604, 57 L.Ed.2d constitute reversible error. he claims now (1978); Court, 196 People v. District prosecu- a objection When there is (1978), and Colo. normally reviews argument, tor’s this court reliability corresponding there need for is “plain error” stan- argument under sentencing proceeding, People v. in the 52(b) “[pjlain states that dard. Crim.P. 791, 792, & 7 Tenneson, 788 P.2d n. affecting substantial errors or defects (Colo. 1990), we have elected examine they may although rights be noticed closing arguments as if record of the there the court.” brought to the attention of contemporaneous objections.7 had been closing a prosecutor’s context of twenty-three allegedly improper argument, we have stated that fall nine prosecutorial arguments within proceedings to an or defect in trial error (1) categories: request general that mem- a contem- which an accused fails make jury place in the bers of the themselves poraneous objection will basis shoes; (2) sympathy the victim for victim’s it casts doubt for reversal unless serious family; (3) the future dan- and the victim’s it- upon fairness of the trial the basic defendant; (4) of the gerousness appropriate believe the self. ... [W]e representative community, as the is plain-error review wheth- standard imprimatur placing the of the state on court, reviewing the appellate after er an case; (5) in this the death sentence record, say can with fair assurance entire personal injection prosecutor’s belief so the funda- that the error undermined (6) knowledge; derogatory superior trial itself as to mental fairness defendant; (7) misstate- references reliability cast serious doubt on instructions; (8) ments of the law judgment of conviction. argument cheaper that the death People, 743 P.2d 419-20 Wilson v. (9) imprisonment; and miscellane- than life (Colo.1987). objection an “[L]ack appeals to irrelevant factors emo- ous examining factor to be considered tion. closing argu- impact prosecutor’s recognized long It that mis- been objection may ment. The lack of ... prosecuting attorney in conduct a belief that demonstrate defense counsel’s argument may grounds closing be argument, despite appearance its the live Berger reversing a conviction. v. United record, overly damaging.” not a cold was 78, 629, States, 1383, 295 S.Ct. 79 L.Ed. 1397 n. 19 U.S. 55 762 F.2d Kemp, Brooks v. (1934). recognition Part this (11th Cir.1985)(en banc), 1314 of on other vacated 3325, a 1016, systemic pros- from belief that 106 92 stems a grounds, U.S. S.Ct. Const, Const, II, objections improper argument. to See Colo. art. foreclose 5. U.S. amend. VI: § 16. Part X below. Nevertheless, as discussed in the text of the Const, Const, II, art. 6. U.S. amend. VIII: Colo. capital opinion, is this case which because § death, we was sentenced to the defendant appeal, de- 7. On the defendant maintains that prosecutors’ arguments as choose to review the contemporaneous fense objections many did not make counsel contemporaneous counsel had made defense alleged improper of ar- ("But objections. party if a Crim.P. 51 Cf. guments judge because the trial ordered him order, object ruling opportunity to, prosecutor's argu- during to sit down objection does not thereafter the absence of an judge While did tell defense ment. the trial him."). prejudice down, her to sit we do believe that counsel reasonably interpreted comments could advocate, ecutor, public Georgia while an is also a Colorado unlike the stat interest, therefore, Gregg, finding statutory ag ute in after servant “whose factor, gravating jury may weigh only prosecution criminal is not that it shall statutory aggravating case, factor or factors justice win a but shall be against 88, found all factors found. done.” 55 S.Ct. at 633. 295 U.S. 16-ll-103(2)(a)(II), (III); see also Bar § Beyond a concern with the inherent Florida, 939, 954, 103 clay v. 463 U.S. S.Ct. prosecuting attorney, courts role of the 3418, 3427, (1983)(“Unlike 77 L.Ed.2d 1134 prosecutorial mis- have also noted statute, however, Georgia Florida law particularly dangerous be- conduct requires the statutory sentencer to balance likely of its influence on the cause aggravating against circumstances all miti jury.... gating permit circumstances does not nonstatutory circumstances to alleged our review of errors ar- Thus weighing process.”). enter into this With gument must be informed an aware- general these contours of the Colorado prosecutorial au- ness that the mantle of mind, statute in we now turn to a discus thority intensify can the effect on the alleged sion of the individual errors misconduct. closing argument penalty phase. of the Kemp, v. 762 F.2d at 1399. Brooks B addressing propriety prose- Cases complains The defendant argument guilt phase in the of a cutorial prosecutor’s invitation for the mem plentiful. criminal trial are A sen imagine place bers to themselves in the however, tencing procedure generis, is sui victim, Martelli, improper. Lorraine was special and we must take into account the prosecutor The stated: characteristics the Colorado people submit that there can be no scope scheme when we determine the now, no doubt whatsoever that it doubt closing argument. permissible See Cole defendant; this defen- was this Brown, 1227, (10th 802 F.2d man v. raped dant who and brutalized the anus 909, Cir.1986), denied, cert. you imagine of Lorraine Martelli. Can 2491, (1987); 96 L.Ed.2d 383 Brooks raped by being anally this defendant? Kemp, 762 F.2d at 1403. talking just I am not to the women on talking everybody jury. I am Gregg-type has a Colorado jury. Gregg Georgia, statute. See “golden argument, as defense rule” case, claims, improper in a civil counsel (1976). provides separate It for a sentenc America, e.g., v. Aluminum Adkins Co. ing phase by jury. prosecution 139-43, 110 Wash.2d prove must at least one factor (1988), 1264-66 and in criminal cases in doubt, and the a reasonable capital sentencing, e.g., than contexts other the ultimate individualized decision makes 744 F.2d Gaspard, United States appropriate penal on whether death is the Cir.1984), denied, (5th 441 n. 5 cert. ty. The statute mandates review 1217, 1197, 84 L.Ed.2d 341 105 S.Ct. supreme sentencing procedure in the court. (1985). workings A discussion of the of detailed applicable capital sentencing proceeding, In how- penalty the death statute to this different, Tenneson, ever, unique considera- there are case is contained v. necessarily improper for tions and it is not 788 P.2d 786.8 actually the 1984 and Tenneson was 657. The differences between 8. The statute discussed in 16-11-103, (1986). incorpo- are minor and are 8A C.R.S. It 1985 versions of the statute section appeal. issues raised on this made the General Assem- not relevant to the rated amendments however, 145, 1988, 1(b). sub- bly section 16-11-103 was to subsection See ch. sec. In stantially in 1985 2, 114, 8, 16-11-103, 653; 1 & See ch. secs. 1985 Colo.Sess.Laws ch. amended. § 16-11-103, 16-11-103, 146, 3, Colo.Sess.Laws 673-75. § sec. 1985 Colo.Sess.Laws 1988 § 974 Rice, 607, jurors place to 110 Wash.2d at 757 P.2d at 906. urge the prosecutor

the to case, part argument the relat Peo In this of victim’s shoes. See the themselves 868-64, victim, 841, impact apart to on the from the Haskett, 640 ed v. 30 Cal.3d ple 653-54, 640, the Cal.Rptr. acts committed and known to defen 776, 790, 180 P.2d — Gathers, 209, 222 v. Moore, 432 dant. South Carolina (1982); So.2d State Cf. U.S. -, 2207, denied, 986, 109 104 S.Ct. (La.), cert. Rice, (1989). argument not (1983); long As as the does 435, L.Ed.2d 367 State 78 889, matters, 577, 606-09, bring confined to in extrinsic 757 P.2d 110 Wash.2d — denied, U.S. -, rea during adduced the trial and (1988), evidence cert. 905-06 (1989). therefrom, and is not 3200, 707 sonable inferences 105 L.Ed.2d inflammatory manner, it is presented case, jury the the instant In Haskett, at objectionable. not 30 Cal.3d weigh the required to Cal.Rptr. at 863-64, at 180 mitigating circumstanc against the found Rice, 653-54; at P.2d 110 Wash.2d the if concluded that jury the es. Even at 906.9 ag did not the mitigating factors First-degree sexual assault of the factors, required to jury was gravating the factor, statutory aggravating victim is of and moral assessment make a factual jury If the 16-ll-103(6)(g). the found § punish appropriate death was the whether of factor be existence Tenneson, P.2d ment for the offense. doubt, clearly finding yond a reasonable 863-64, 791; Haskett, 30 at at Cal.3d evidence,10 supported the that factor Cal.Rptr. 653-54. In P.2d at at against any weighed would be decisions, it is we believe that making these factors found. circumstances circum jury consider the proper for the to weight the sexual assault were relevant to to In order of the offense itself. stances aggra the to that to be accorded so, germane the to make it is do Thus, vating prosecutor’s argu factor. viewpoint from the the assessment inviting imagine ment to them Haskett, 30 at 863- herself. Cal.3d victim place during the sexu selves in victim’s Cal.Rptr. P.2d at 653- at germane al assault was and was confined Washington Supreme Court 54. As brought at out trial. In our to evidence stated: view, argument impermissibly was not phase, jury is the death inflammatory when viewed in the context guilt or inno- deciding not an issue argument as the ex a whole and cence, deciding a sentenc- but instead is aggravated circumstances of the tremely if the ing jury does not decide issue. The episode. criminal met, are but rather elements the crime acts weighs the nature of criminal C against mitigating factors. The consider, part contends that The defendant should be allowed to improperly attempted in analysis, impact prosecutors on the crime’s by asking victims, argument topic flame the emotions of the on that feelings of the vic extent that it is restricted them to consider proper family sympathy crime. tim’s and extend to the circumstances of the Moore, general knowledge experience to the evi- See 432 So.2d at 222: also State rendering adduced at trial before their scope dence of normal human It is recommendation, hereby experience imagine are self and we unwill- one’s behavior victim, is not per of a crime se the shoes to establish rule which would all, many, asking inconceivable that jurors place prohibit the state from case, viewing the evidence in this of the victim. themselves in the shoes trial, took into account the emo- adduced experienced prior trial, the victim to his tions guilt phase of 10. In the found rendering and death in their verdict guilty doubt the defendant reasonable recommendation We cannot view [of death]. assault, felony. first-degree a class sexual argument prosecutor's in vein other 18-3-402, (1986). 8B C.R.S. § apply appeal their than as to exhortation, victim, through lengthy draw Maryland, in will violation Booth 496, 107 meaning plethora from the of less 96 L.Ed.2d 440 U.S. damaging (1987). complains interpretations. of the particular, he following prosecutors: of the statements DeChristoforo, Donnelly v. very is a im-

Obviously, this decision 646-47, 1868, 1872-73, 94 S.Ct. 40 L.Ed.2d every- portant important matter. It’s to (1974).

body important in It’s to this courtroom. complains The defendant also everybody community in nearly following during closing argu statements important you people. it’s to twelve ment: “good-bye” chance say She had no a difficult decision. I don’t want to It’s her loved ones and her loved ones had no you. may minimize it for It not be a say “good-by” chance to to her. people in the difficult decision for these during closing argument, In his rebuttal audience, it is for because— but prosecutor jury: told the Objection, judge. I [Defense Counsel]: gentlemen, Saturday next Ladies object improper, It’s have to to that. birthday; will be Lorraine Martelli’s her making a we refer to the audience when birthday. She won’t be here to celebrate in decision this case. birthday. Lorraine Contrast Martel- not, It’s Your Honor. [Prosecutor]: li’s fate with that of the defendant’s saying maybe You’re The Court: [sic] you are to determine that he should jury. not on the easy for someone who is spend penitentiary. a life sentence in the why you’re objecting to that. I don’t see Martelli will not ever be able Lorraine appealing to He is [Defense Counsel]: anyone, letters to much less her to write object it. community again and I family will never family. blood Her The Court: Overruled. to write to her. She won’t have a able context, reasonably group peers hang out with. She and as con- Read go to at the judge, these statements won’t even be able to work strued the trial their “awe- House of She will never see tele- to remind the Glass. served Mississip- again. vision responsibility,” some Caldwell 2633, 2646,

pi, trial, of the entire Placed within the context (1985), reaching a deci- objectionable. A these comments were not life or death. We do not believe sion on may argue the facts in evidence prosecutor reasonably inter- would from those facts. and reasonable inferences improper preted the comments as an refer- (Colo. People Moody, family. of the victim’s ence to the wishes 1984); I ABA Standards for Criminal see Supreme in a sim- As the Court has stated (2d 1980). 3.5-8(a) These com Justice ed. ilar context: go outside of those limits. ments did not prosecutor’s argu- family passages of a of the victim’s be

Isolated knew ment, during they testify as a billed advance to cause were called evidence, The victim’s em opinion guilt phase do not of the trial. matter of ployer testified that Lorraine Martelli proportions. argu- Such also reach the same leaving work. ments, closing arguments kidnapped of was as she was like all counsel, were carefully The remainder of the statements are seldom constructed event; counsel’s ar improvisation mainly response to defense in toto before severity im guments regarding the of life syntax imper- left frequently results the victim’s fate prisonment, compared meaning crystal less than clear. fect such, they As with that of the defendant. general While these observations prosecut misconduct, by the permissible comment way justify prosecutorial ing attorney against “for or sentence suggest that a court should not they do 11—103(l)(b), death,” rele and were prosecutor intends an lightly infer that a § 16— appropri jury’s decision on its most dam- vant to ambiguous remark to have (III). 16-ll-103(2)(a)(II), sitting penalty, aging meaning jury, or that a ate § 976 factor, 496, nonstatutory aggra a inject 107 did not 482 U.S. Maryland, v.

In Booth vating proceedings. People 2529, held the introduc- factor into the Court S.Ct. 804, (Colo. statement,” impact Saathoff, 790 P.2d 806-07 a v. of “victim tion 1990)(evidence of stat impact the vic- of the non-existence on detailed the emotional prose utory mitigating kill- factor admissible in resulting from the victims’ family tims’ capital sentencing descriptions per- of case-in-chief cution’s ing, and contained Campbell Kinche proceeding); un- see also v. of the victims sonal characteristics (9th 1453, 1458 Cir.1987), defendant, loe, cert. 829 F.2d was irrelevant known to the 948, 380, denied, 102 capital S.Ct. sen- 488 U.S. 109 of proper considerations 505-09, (1988). 107 proceeding. Id. at L.Ed.2d 369 tencing It created unac- at 2534-36. S.Ct. no evi While it is true that there was would ceptable risk that the probability of before the dence capricious arbitrary in an imposed escape, escape possibility is a “the fact that eighth amend- manner violation public knowledge,” within the common was 505, at 2534. Id. 107 S.Ct. ment. at 46, n. 762 F.2d at 1411 Kemp, Brooks v. contrast, prose prosecutor’s argument the comments In was and thus jury’s not in this case did draw impermissible. cutors not See also v. impact on any impermissible Strozzi, 1100, (Colo.App.1985), 1104 attention to 1105, 106 family, personal denied, characteristics 476 rt. U.S. ce 1950, (1986). the defendant and unknown to the victim 359 90 L.Ed.2d sentencing. did Nor irrelevant to argue it error to about Nor was involving the prosecutors’ statements prisoners guards at safety v. violate South Carolina victim herself given life. “This prison the defendant — 2207, Gathers, U.S. -, 104 109 S.Ct. appropriate argument was an means (1989). L.Ed.2d 876 pointing possibility defen out [the Gathers, attorney in the prosecuting dangerousness and did not future dant's] capital sentencing closing argument in a speculative inquiry prison for into call personal proceeding to certain referred Kemp, 762 F.2d conditions. See Brooks v. in- of the murder victim characteristics 1411; Ramos, v. 463 see also California carry- was ferred from materials the victim 992, 3446, 1171 103 S.Ct. 77 L.Ed.2d U.S. was killed. The materials ing when he (1983).” (William) Kemp, 762 Tucker defendant, hence were unknown Cir.1985) (en banc), 1480, (11th F.2d unrelated to the defendant’s blameworthi- 1001, 517, vacated, 106 S.Ct. 474 U.S. prose- 2210-11. The Id. 109 S.Ct. at ness. (1985), aff'd, L.Ed.2d 452 802 F.2d 1293 from arguments here did not suffer cutors’ Cir.1986), (11th denied, cert. improper. infirmity, and were not such (1987); 107 S.Ct. see (Richard) Kemp, 762 F.2d also Tucker D (11th Cir.1985) (en banc), cert. argument the defendant denied, 3340, 92 478 U.S. might day escape prison from was some (1986). L.Ed.2d 743 impermissible. It went to the issue of the de dangerousness, future whether E continuing pose a threat fendant would ar impermissible It is to deliver society, prosecutor correctly an which cloak state argue guments “wrapped ticipated the defense would was authority,” Kemp, 762 F.2d since the defen Drake mitigating circumstance (11th Cir.1985)(en banc) (prosecutor’s life. is a prison dant would be It reading Georgia Supreme statutory from two mitigating factor that defen penalty during continuing on the death pose threat Court cases dant would es 16-ll-103(5)(k). phase improper, prosecu capital sentencing society. § jury was not told the cases dangerousness, pecially where tor’s reference future denied, old), i.e., statutory mitigating years cert. the absence of a

977 (1986), 1020, 3333, serious, however, More is the defen- 106 S.Ct. jury prosecutor to that the dant’s contention that was so as lead the believe the Assembly requires telling jury Assembly as the that General death the the General particular penal- do decided punishment in a case. We had somehow that the death not, ty however, prosecutor’s argu- appropriate particular for de- read the was this If that fendant. the comments could reason- broadly ment that and do not conclude interpreted they by ably way, that would jury interpreted way urged the the misconduct. Drake v. prosecutorial reflect prosecutor the defendant. stated: Kemp, F.2d at not be- 762 1459. We do you see, big, plainly As can all I have a however, lieve, the would have my big blue hand. book This blue prosecutor’s interpreted the statement very important book attor- to district unreasonable a fashion. See so literal neys, attorneys throughout and defense Donnelly v. DeChristoforo, In it the the of Colorado. are State 646-47, Although 94 S.Ct. at we 1872-73. laws, statutes, criminal the criminal the particular regard argument do not this as state; rules of this the state we criminal model, use, we con- discourage its we all in. This is the of the State of live law it did not reversible clude constitute Colorado. error under the facts of this case. page Inside this book on 140 is a stat- objects to ref defendant also ute; passed a law our elected offi- prosecutors erences the to the provides cials. That makes clear that it representatives the or conscience penalty. for death has a the Colorado community, and that was the last instructions penalty. death free con society. fail-back of a other judge you this just read come from texts, prosecutors have held should we book here. appeal to consider not you duty have a As sworn community reaching wishes of the urge you; The People follow the law. verdict, e.g., People, 743 P.2d Wilson v. you; People can- People implore 415, (Colo.1987). 420 n. 8 you strongly enough, not follow the tell However, in- because the considerations you law. tells the factors to The law capital proceeding in a herent at; look them. the law. look at Follow that such unique, are we concluded rules; go by your own up Don’t make reversible er- comments do constitute book; this book go by right here. Davis, People See case. ror in this you do that that on will see If 159, 200, (Colo.1990) (relying on P.2d ljO page it is defendant Booth, 504, at 2533- 482 U.S. at person they’re talk- exactly the sort of 34, proposition that a sen- for the being appropriate about as for “express the tencing jury’s function is to penalty. community on the ulti- conscience of added.) (Emphasis previously We have death.”). of life question mate improper held to mis- that it is counsel closing misinterpret during state or law F Sepeda, 13, argument. People v. 196 Colo. argues that The defendant (1978). Moreover, P.2d prosecutor injected his own be improperly usurp attorney may not the trial court’s proceeding opinions liefs and into duty authority to instruct during closing ar following statements Alvarez, law, 187 Colo. gument: (1975), that error but a crime very rare combination of It’s a prosecuting did not occur in this ease. The many of satisfies so and a defendant that attempt attorney read from did statutory criteria. holding, book he and he did refer to judge, Objection, judge’s as contained in the instruc- law counsel]: [Defense cases. comparison to this to other tions. year year gentlemen, Let Mr. ladies after Overruled. Silver- and Court: totally argument. year is his after to what we see now

man finish in beyond redemption. Every so often this has been on his adult life defendant rarely in of conduct is seen This sort a of Denver. leash on the streets here; Colorado, all but we have seen make things that the crime sorts of first-degree your average

worse than know, is putting You to death someone things; this murder. There are other certainly proposition. pleasant not a terribly extensive and violent defendant's society; he This defendant is a failure to background him far worse than make is a for The defendant is failure himself. killer. your typical cold-blooded young man. The is set not defendant that prosecutor may not tell of way A in and evil. ways his his is him, that have come before all cases cannot be This defendant’s conduct worst; very such an is this one planet; not anywhere tolerated on this possibil has argument is irrelevant and among us, jail, anywhere. not in not unfairly prejudicial. ity being Tucker of lacks proven This defendant has that he 1480, (William) 762 F.2d 1484 Kemp, any humanity. spark is even a There not banc), vacated, (11th Cir.) (en 474 U.S. redeeming of feature this defendant. 517, (1985), 452 L.Ed.2d spark not This defendant does Cir.1986), (11th rt. aff'd, 802 F.2d 1293 ce humanity of we all must have to live. denied, 480 U.S. Study the words of the defendant. (1987). See also Wilson v. L.Ed.2d 529 Look Study his letters. lack 418-19. People, 743 P.2d at everything every- has for respect he prosecutor in this case did not While the rot- one but himself. This defendant is opinions superior personal to his refer through. let- through and Read the ten first-person, we conclude knowledge in the ters. argument objectionable, was but prosecutor’s de We conclude level not itself rise of reversi- did part scriptions of the defendant were argu- error. We consider whether ble argument about the unlikeli ment, improper other conjunction with rehabilitation, and the defendant’s hood of requires arguments, reversal prosecutorial mercy danger society, were “lack of in Part II K below. improp not supported by the evidence and (Richard) Kemp, 762 F.2d er.” Tucker G Cir.1985) banc), (11th (en cert. complains The defendant denied, 1022, 106 S.Ct. urged ignore prosecutor (1986). find no reversible L.Ed.2d 743 We following humanity in the defendant’s basic comments. error in these comments: Now, of other I there lot know H If Exhibit letters Defendant’s anyone you doubt as reasonable also contends that The defendant in this appropriateness to the of death during closing argument prosecutors case, urge you, you I ask to read those I First, prosecutor law. misstated letters; get a Read all of those letters. sentencing phase in the jurors that told the defendant is. See how taste for who this trial, rules evi capital the normal of a warped perverted this defen- and evil and against dence, especially the rule hear dant is. the defendant’s ex say, Thus are relaxed. Rodriguez Life “Frank entitled hibit —A be evaluated History,” should evil. has chosen to be This defendant hearsay that it contained mind suffering. keeping human This defendant loves subject to cross-examination. has, thing and was appears always he It but rules evi- whether the much, question of it’s It’s escalated so escalated. well, at the sentenc- don’t serve the dence are fact “relaxed” defendant because a us, ing phase jury thinking types thoughts trial of a before those express opinion might just putting and we thereon. The start them when essentially ac- prosecutor’s weigh statement start these respect curate with evi- making just determination defendant, law, dence introduced how- under the so let’s dismiss those.

ever, that the comment and we conclude off; just weigh Let’s forget that about did not constitute reversible error. thing Lorraine. This terrible is con- ceded; don’t be emotional and don’t be also It was not reversible error upset; don’t be the conscience of the prosecutor rhetorically to ask whether community; jury. don’t be cruel, heinous, the defendant was or de know, through I my You as look at praved. We conclude below that the statu eyes, blood-shot I jury know this is not a tory aggravating upon which this factor computers, of twelve but human twelve invalid, question was but its inclu based is beings feelings who do have about these beyond sion was harmless a reasonable things, why and that’s we use citizens Similarly, harm doubt. this comment was computers, why and not and that’s that’s beyond a less reasonable doubt. okay, justice product because is the we courtroom, manufacture and I that’s what we’re here for. hand, improper On the other it was We do not believe would argue cheaper execute a to it is to interpret these remarks in a manner con- keep prison defendant than to him or her in trary to the trial court’s instructions or in for the rest of their life. There was no duty jurors. violation of their We find assertion, support in the record for such an error. reversible legitimate nor was it a factor for the In his brief the defendant cites numerous to consider. Gregg Georgia, v. 428 U.S. examples alleged improper appeals other 153, 183-87, 2909, 2929-32, 96 S.Ct. prejudice sympathy by prosecu- to and (1976); (William) L.Ed.2d 859 Tucker tors. We conclude that none of these addi- 1486; Kemp, Kemp, 762 F.2d at Brooks v. arguments or re- tional comments warrant F.2d 1412. at We consider the effect versal. improper argument K of this Part II below.

K J prosecutor statements The contends that defendant superior personal based his beliefs prosecutor its decision told the to base knowledge improper. Part II F See sympa “on inflamed emotions of fear and addition, argument In that it above. thy, constitutionally not on facts or the cheaper to execute the defendant than statutorily-mandated criteria.” The con prison keep him for life was errone tention is on statements based made Reading Part II I ous. See above. prosecutor closing argument on rebuttal whole, closing arguments as a mindful regarding the fact that the victim would of the circumstances of the crime itself as birthday not be around to celebrate her revealed before the evidence anymore; that she would be unable trial, during are confident that their we else; family anyone write letters to her closing argument inclusion in could not again; that she would never view television have affected the result this case. We go again. and that would never she work arguments in the conclude that errors prosecutor continued: were harmless a reasonable doubt. 18, 24, Chapman California, for the like Counsel defendant would (1966).11 824, 828, thoughts they 17 L.Ed.2d 705 to dismiss these because 87 S.Ct. California, (1966), Chapman the Court 18, 24, 824, 828, 11. In 373-74, at factors exist. Id. at 108 S.Ct.

III 1864-65. that his contends sentence The defendant hypothetical, ju- all the second twelve process prohibition the due

violates agree pro- mitigating circumstances punishment rors against cruel and unusual exist, agree on the but all twelve cannot and state Constitu- of the federal visions The Court jury instructions led the circumstances. same tions because they certainly had unani- “it be the concluded that would believe require factor before to allow or mously agree height on a of arbitrariness Appendix B to this giving imposition effect. of the death under ” opinion the relevant instructions hypothetical] contains circumstances.... [these true, phase. If given at at Id. eighth sentencing proceeding violated the case, in this instructions permit did not because it amendment form in like the verdict and instructions mitigat- relevant jurors give to effect to all Mills, the instructions and unlike Carolina, McKoy v. North evidence. explicitly McKoy, jury did instruct the — -, 1227, 1233, 110 S.Ct. 108 U.S. any mitigating on one that its decision (1990); Maryland, v.Mills 486 L.Ed.2d 369 had to be unanimous before that factor 1870, 367, 384, 1860, 108 S.Ct. U.S. by juror. any considered factor could be (1988). L.Ed.2d 384 argues portions In The defendant that decisions, it is not relevant Under our jury to struction No. 21 led the believe that to the sentencer’s whether the barrier unanimously had find the existence of it to mitigating all evidence is consideration of mitigating particular a factor before that statute, Ohio, by interposed Lockett v. factor could be considered: supra, Dugger, v. 481 U.S. Hitchcock your steps in the two delib- If first 1821, 95 L.Ed.2d S.Ct. 393 [107 347] you erations have made unanimous court, (1987); Eddings the by prosecution proven the has findings that 104, 102 v. U.S. S.Ct. Oklahoma [455 beyond a reasonable doubt that one or 869, supra; an evi- L.Ed.2d 1] more exist and that factors dentiary ruling, Skipper South Car exist, mitigating a factors or that 1, 1669, olina, 106 S.Ct. U.S. [476 exist, mitigating or factors factor [1986], supra. The same L.Ed.2d 1] prosecution must now the decide whether respect single to true with a must be proven any mitigation has that juror’s against finding holdout vote the do not the factor presence mitigating of a circumstance. or factors. 1866. The constitu- Id. at 108 S.Ct. at added.) worst, (Emphasis empha At problem instructing jury tional with portion ambigu sized of this instruction is to respect unanimous with a that must be ous. We considered an instruction Peo mitigating illustrated factor was Davis, 194-196, (Colo. ple v. hypothetical with two situations. Court 1990), part, identical in which was relevant juror hypothetical, all but “hold-out” concluded, here, as we do convinced that six one of the are requirement impose did not a instruction mitigating factors exist. How- relevant mitigat unanimity consideration of ever, unanimity require- because of ing factors. ment, jury, the individual members — -, determining appropriateness In Boyde California, 1190, 1197, penalty, give any cannot effect 108 L.Ed.2d (1990), they majority have if even noted that the Court mitigating factors found mitigating applied same test for juror always one concludes that no had not — U.S. -, Mississippi, S.Ct. before a constitutional error can be ons stated that harmless, (1990); held "the court must be able de- Satterwhite v. 108 L.Ed.2d 725 249, 258, 1792, 1798, a Texas, clare a belief that it was harmless Chapman appli- doubt." The test is reasonable (1988). capital sentencing proceedings. Clem- cable

Q81 ambiguous jury attempting complete the verdict form determining whether an impermissibly instructed, restricted the instruction may thought well jury’s consideration of relevant evidence.12 they precluded considering from “important upon to settle a Because it was ju- evidence unless all 12 and other single formulation for this Court agreed particu- rors on the existence of a deciding this kind of employ courts to cases, lar such circumstance. Under our id., question,” posited federal the Court permitted the sentencer must be to con- following test: possi- sider all evidence. The instruction is am- The claim is bility single juror that a could block such subject to an erro- biguous and therefore consequently require consideration and interpretation. prop- We think the neous impose penalty, the death inquiry in is whether there er such case we dare not risk. one that the reasonable likelihood 108 S.Ct. at 1870. The relevant Id. applied challenged instruction in penalty phase jury instructions are set out way prevents the consideration of Appendix opinion. B to this Al- constitutionally relevant evidence. though a defendant need not establish instructions, An examination of the likely was more than not to whole, context, read as a and in reveals impermissibly inhibited have been only requirements unanimity instruction, sentencing proceed- imposed by the instructions relate to the Eighth ing is not inconsistent with the finding specified aggravating possibility only Amendment if there is a and the verdict of death. Instructions See do of such an inhibition.... Jurors 14, 15, 16, 21, jury and 28. The Nos. solitary parsing sit isolation booths again again that if instructed one meaning instructions for subtle shades of disagreed majority, jurors more with the way lawyers might. the same prison. the result would life in See among interpreta- them in Differences 14, 15, 16, 21, and In Instructions Nos. may tion of instructions be thrashed out addition, jury Instruction No. 13 told the process, in the deliberative with common- they could sentence defendant understanding of the instructions sense prison they if that no life even “decide[d] place light in the of all that has taken mitigat- that a mitigating factor exists or prevail technical likely the trial over factor or factors d[id] hairsplitting. aggravating factor found exist....” added). (emphasis Id. 110 S.Ct. at 1198 affirmative instruction that There was no Mills, given jurors were a verdict give jury could not consider or effect mitigating listing form certain factors. jury if the was not mitigating a factor jury marked ‘no’ each refer- beside “[T]he Frey, unanimous. See Commonwealth and re- mitigating enced circumstance 338, 346-48, 27, (1989), A.2d 31 520 Pa. 554 a of death.” 486 U.S. at turned sentence — 1500, denied, U.S. -, 110 S.Ct. cert. 370, Maryland 108 S.Ct. at 1863. The (1990); Bey, 108 L.Ed.2d 635 State cf. Appeals concluded that this mere- Court of 160-62, 887, 123, 548 A.2d N.J. ly jury unanimously meant that the found (1988). in stark contrast to the This was It mitigating that a factor did not exist. imposed with re unanimity requirement jury thought that it must did not mean the aggravating spect finding of an unanimously particular mitigating find a 15, 16. Con factor. Instructions Nos. See circumstance before it could be considered. portion of Instruction trast this with the disagreed, finding that Supreme Court jurors “If one or more No. 15 which states: probability that

there is a substantial mitigating factor or factors finds sufficient jurors, upon receiving the reasonable aggravating case, outweigh specified a in this and in exist that judge’s instructions ground, resen- example, 'improper' must remand for "Un- we 12. For in Mills the Court stated: (em- 377, tencing.” S.Ct. at 1866-67 possibility Id. at we can rule out the substantial less added). phasis jury may have rested its verdict on account, although factors, any juror other into then the result is a sen- factor or may you you do so wish. imprisonment.” life tence of 239, Thompson, 768 S.W.2d See State stage jury deliberations Unlike (Tenn.1989) (instructions not defi- 250-51 aggra finding of at least one involving the stressed the they under Mills where cient factor, not re vating instructions did autonomy considering juror’s individual taken on quire that vote be evidence).13 We are convinced mitigating mitigating In factors. the existence hypothetical neither of the two situa- “After No. 16 states: struction could have occurred posited Mills tions factors, you these discussed given in this under the instructions whether the a vote to determine shall take rea- conclude that there was no case. We of one proven the existence prosecution would inter- sonable likelihood that aggravating factors be of these or more in- No. or the pret either Instruction There yond reasonable doubt.” whole, foreclosing as them structions as for a vote corresponding instruction considering giving effect to rele- from mitigating factor. existence they vant evidence unless Clark, 108 N.M. State v. See instructions did not unanimous. (1989) (unlike Maryland P.2d McKoy. violate either Mills or found deficient in and instructions practice Mills, requirement has no New Mexico IV findings regarding made a vote be taken or statutory One factor — denied, factors), cert. of defendant committed the that “the (1989). -, heinous, cruel, or especially in an fense manner_” running through 16-ll-103(6)(j). depraved Also theme § phase individual is that At of the defendant’s instructions trial, disagree respect gave to the effect 16: with the court Instruction No. could In- they gave mitigating to factors. See step your The first in deliberations (“If jurors one or more No. 15 structions consider whether one or more statu- to mitigating factor or factors finds sufficient tory aggravating present.... factors is specified aggravating outweigh a upon by exist that aggravating relied factors factors, result is a sen- then the factor or prosecution in this case are: (“If life No. imprisonment.”); tence of believe that a one or more (b) of- The defendant committed the mitigating or factors factor heinous, especially cruel or fense in an or found to ex- aggravating factor factors depraved manner. ist, then the shall enter verdict of jury indi- completed A verdict form addition, imprisonment.”). life In Instruc- they aggravating that that this cates found 22 stated:

tion No. doubt, beyond existed a reasonable factor your- you decide for Each of must also assume that con- and we must give determining ap- to each weight self what this factor in sidered you penalty. find exists. Your propriateness circumstance that of the death weight give given or any jury to was no further instruction decision to what meaning guidance on the of subsection mitigating circumstances does in- (6)(j). narrowing In of a do not have to the absence to be unanimous. You definition, decisions, feelings we opinions or struction or conclude take the you justify closing argument, think life sen- In defense counsel told other factors 13. his tence, you rely upon those jury: then can factors. everyone you individually can Each and or You have to decide whether not the miti- you rely wish to return a on gating punishment factor as to the other life factor case, on have to be unanimous sentence. You don't people received in this how much those comparison aggravating those are to these worth factors. added.) factors, prosecutors (Emphasis nor you Neither like the factors the and if don’t argument. given you, this the trial court contradicted court has if think there are

9«3 eighth (6)(j).16 (6)(j) violated the amend factors addition subsection subsection closing argument, his defense counsel con- gave guidance because it insufficient ment prosecution proven ceded that had v. Mis senteneer.14 Clemons — statutory aggravating alleged factors be- U.S. -, 1441, 108 sissippi, 110 S.Ct. yond a reasonable doubt.17 (1990); Maynard v. Cart L.Ed.2d 1853, 356, 108 wright, S.Ct. Our review of the record indicates (1988); Godfrey Georgia, L.Ed.2d 372 no evidence was introduced before the 420, 100 jury that would excluded had have been Davis, People v. (1980);15 794 P.2d at 176- (6)(j) ag alleged subsection not been as an gravating factor. The facts and circum stances relevant manner in which the instruct The fact murder was committed were also admissi on, found, statutory ag ed and an invalid prove the existence of other valid ble gravating require that we factor does factors, aggravating statutory as well as sentence, however, vacate the defendant’s weight ag the relative to be accorded the can conclude that the error was harm we gravating found. reasonable doubt. Clemons beyond a less — U.S. -, Mississippi, Clemons, prosecutors Also unlike 108 L.Ed.2d 725. Unlike overly rely this case did not stress or Clemons which only found valid statu closing one invalid factor factor, jury in tory aggravating argument. counsel Defense himself stated statutory closing argument the murder was case found five selves, narrowing capital sentencing principle 14. The statute was amended and without some “cruel,” "depraved,” facts, imposition in 1989 to the terms apply define to those to warrant the “heinous," as used in section 16—11— penalty." of the death Id. at 108 S.Ct. at 16-11-103(6.5), 103(6)(j). § Ch. sec. 1858-59. 1989 Colo.Sess.Laws 828. (a) "Cruel” means intentional infliction of following 16. The found the existence of the torture, psychological physical includes or statutory aggravating factors a reason- suffering pitiless pain infliction of or with (1) intentionally able doubt: the defendant to, of, enjoyment utter indifference or the him, person kidnapped killed suffering of others. (2) 11—103(6)(d); the defendant committed § 16— (b) “Depraved" means senseless or committed 1, 2, felony intentionally a class or 3 caused purpose meaning, that the murder without or participant, the death of someone other than a greed, envy, revenge, product was not the (3) 11—103(6)(g); par- the defendant was a § 16— ordinarily another of those emotions associated murder, ty agreement to commit murder, purpose no for the with and served 11—103(6)(e);(4) the defendant was under § beyond killing. pleasure 16— defendant his of imprisonment when the murder a sentence of occurred, (c) using particularly a "Heinous” means 11—103(6)(a);(5) the murder killing, § shocking a kill- or brutal method of or 16— purpose avoiding ing physically for of or victim is unable to was committed the which the witness, physical including killing mental preventing defend himself because of disability or a arrest — young. (6) too old or too 11—103(6)(k); or because he is and the murder was § 16— heinous, cruel, depraved in a or committed manner, 16-11-103(6.5), (1989 Supp.). 8AC.R.S. Since § 16-11-103(6)0. did not § limiting given the in this case was not these find, alleged by prosecution, the that the they instructions we do not decide whether adequate are pecuniary gain, murder was committed for satisfy Maynard the of v. dictates 11—103(6)(h). § 16— 1853, 356, Cartwright, U.S. and 486 108 S.Ct. 420, 1759, Georgia, Godfrey v. 446 U.S. 100 S.Ct. during closing argu- Defense counsel stated (1980). 64 L.Ed.2d 398 ment: certainly true that the 15. While it is offense question you Before reach this ultimate shocking particularly this case was and brutal though, death is the one of whether or not beyond comprehension, we do not be- almost appropriate, you interme- have to take some brutality of the crime itself lieve that the can aggra- steps. Do these diate The first one is: May- statutory In save this factor. question they vating factors exist? There is no 356, 1853, Cartwright, U.S. 108 S.Ct. nard v. 486 prosecutor] put them do. Silverman [the Mr. "[Godfrey Georgia, v. the Court stated: 420, up graphic display. There is no (1980)] 64 L.Ed.2d 398 for beyond question they proven a rea- them rejected particular plainly submission that a the murder, surrounding sonable doubt. however set of facts shocking added.) be, they might enough (Emphasis in them- were 984 this case harmless be- overwhelming instruction in was the evi-

“heinous.” Given doubt. aggravat- yond reasonable supporting the five valid dence by jury, the we conclude ing factors found V aggravat- of invalid that inclusion reason- ing beyond harmless factor was maintains that The defendant next doubt. able invalid under were instructions 320, 105 Mississippi, 472 U.S. v. Caldwell prosecutors The dissent asserts (1985),People v. S.Ct. rely on the invalid did fact stress (Colo.1988), Drake, Peo That be true aggravating factor. would (Colo.1984), Durre, 690 P.2d 165 ple v. prosecutors’ comments only if all judge the trial that comments brutality of murder were regarding the This con reinforced the error. prosecutors only the cruel and heinous stat- relevant merit. tention without manner in aggravating factor. The utory was was committed also which the murder Mississippi, In Caldwell jury’s consid- independently relevant (1985), L.Ed.2d 231 weight to accorded the eration of the stated: Court remaining aggravating factors. Even five constitutionally that it is conclude [W]e closing argu- relied in prosecutors if the sentence on impermissible to rest a death and heinous ment on cruel made a sentencer a determination factor, that the inclusion that we believe led to believe that who has been reasonable was harmless factor responsibility determining appro- doubt this case. the defendant’s death rests priateness of repeatedly has Davis, This Court 794 P.2d at we elsewhere. Eighth Amendment ‘especially hei- said that under aggravator that “the held qualitative nous, “the difference of from depraved’ cruel should have been or punishments requires a corre- only those murders which all other limited to include pitiless, spondingly greater degree scrutiny and were conscienceless victim.” Al- determination.” unnecessarily torturous U.S., Ramos, at here, proper limit- 998- though, as there California S.Ct., instruction, Accordingly, at the facts and circumstances [103 3452]. many the limits this Court has case were considered of that limiting “espe- placed imposition capital pun- on the jury satisfied our definition depraved.” heinous, We con- ishment are rooted a concern that the cially cruel or given proper sentencing process jury, should facilitate cluded instruction, responsible limiting would have concluded and reliable exercise of sen- tencing committed in an discretion. the murder was “es- heinous, depraved” man- cruel pecially 328-29, Id. 105 S.Ct. at 2639. ner, the trial court’s failure and therefore always premised This Court its give the was harmless error. to instruction capital punishment on decisions the as- Similarly, jury, given sumption capital sentencing the jury we believe that that a case, recognizes gravity facts circumstances of this the its task the of and proceeds have that the murder appropriate would found was with the awareness pitiless, “truly responsibility.” or un- of its awesome “conscienceless [was] necessarily case, sought torturous the victim.” Lor- this the State to minimize kidnapped jury’s was off the the of responsibility raine Martelli sense for de- car, in her appropriateness of Denver own driven termining streets of death. hours, repeatedly raped, sodom- say around Because we cannot that this effort ized, decision, was beaten and humiliated. She ulti- had on the effect mately indicating a manner murdered decision does not meet standard torture reliability defendant intended to her that the Eighth Amendment she requires. before died. We conclude that of death sentence must give proper in failing limiting error therefore be vacated. attempt gravity at 2646. In the sen- to minimize the

Id. jury’s responsibility, suggest or tencing hearing jurors in this case the jury’s they pos- subject determination was to de unambiguously instructed that review, conclude, novo as in We responsibility” of de- Caldwell. sessed the “awesome therefore, jury that the instructions did not ciding of the defendant. Instruc- the fate violate Caldwell. provided: No. 2 tion jury, of the the evidence Members Nor did the trial court commit re complet- sentencing hearing has been versible error when it refused to instruct the law. ed and I will now instruct jury with the in defendant’s tendered these instructions and clos- respect jury’s structions with to the role in after

After counsel, it will then ing arguments imposition penalty. of the death The re your duty be to decide whether FRANK quested instructions were similar to the put to death D. should be RODRIGUEZ actually given, ones and defense counsel be or whether he should sentenced permitted argue jury was to the con imprisonment. requested formance with his instructions. life Van, People P.2d v. Nhan Dao added.) (Emphasis The instructions direct- (Colo.1984). “your verdict” of jury ed to the referred to imprisonment “your or verdict” of life The instructions were not inconsistent death. Instruction No. 23 then stated: Drake, teachings People with inflicting punishment “The manner of Durre, People P.2d of death the State of Colorado Durre, 165. In which was decided before gas. lethal You must administration of Caldwell, a death sentence we reversed that the death will be assume inadequately because the instruct- imposed pur- carried out the Court ed as to the effect of their verdict. We (Emphasis verdict.” suant said: added.) Davis, P.2d at See Because under sen- Colorado’s 35, (rejecting argument n. defendant’s tencing procedures jury’s resolution very that the word “assume” similar mitigating, of the existence of additional convey instruction failed to to the its mitigating, circumstanc- responsibility). ultimate necessarily a determination es involves imprisonment opposed of whether life prose- complains The defendant justified under the to a death sentence they cutors communicated to evidence, certainty essential to a representatives act as of the com- were to directly resulting in death can verdict munity, but that the ultimate decision was are only achieved when “up judge.” prosecutor What the to the concerning the effect clearly instructed actually said was: question the ultimate of their verdicts on Jury: For gentlemen Ladies death. imprisonment of life years everything has been com- two now truth; ing down to this moment of instruc- in the trial court’s A basic flaw citizens this state

moment when the tions, the issue of unanimi- as related to many You heard how tran- take over. jury of the to inform the ty, If is the failure scripts generated. counsel been the issue sides, its verdicts on it’s effect of looked a little tired on both punishment. obviously have been work- because we

ing, ultimately up judge, it’s but jury instructions 690 P.2d at 173-74. attorneys; up it’s up and it’s not to the as the same defect from in Drake suffered citizens, lay people the who make to the 1255, Drake, P.2d at 748 in Durre. those the decision in case. case, ade- the instructions In this 1257-58. final of the effects added.) the argument quately not informed (Emphasis This does circumstances, aggravating up verdicts on decision its suggest that the ultimate against aggra- weighing of opposite. the judge; implies in fact it the to the the factors, decision on their vating and argument thus did not prosecutor’s The 986 305-06, (also Id. at penalty quoted of the death as 107 1774 appropriateness S.Ct. — Blystone Pennsylvania, imprisonment. See life Instruc- U.S.

opposed to 13, 14-16, 2, 3, 21, 23, -, 1078, 1084, 28. With- 110 tions Nos. S.Ct. 108 L.Ed.2d 255 context of the death penalty (1990)). statute capital sentencing in the stat- Once the case, the applicable to this instructions eligible ute narrows class of individuals with the command of were inconsistent does, penalty, the death as ours or Durre. Drake prohibit federal Constitution does not aggravating considering from sentencer

VI statutory other than facts circumstances Florida, aggravators. Barclay v. 463 U.S. complains The defendant next 939, 956, 3418, 3428, 103 77 L.Ed.2d S.Ct. the trial court’s instructions violated Stephens, Zant v. (1983); 1134 by jury,18 process, prohibition due and trial 887-88, 862, 2733, 2748-49, S.Ct. punishment pro against cruel and unusual People (1983); see also v. Saa L.Ed.2d 235 and federal Constitu visions of state 804, (Colo.1990). In the thoff, they failed instruct tions because capital punishment, context we have only they could jury that the factors consid interpreted pro the state Constitution to reaching their life or er in decision on death protection broader than the statutory Even vide federal criteria. assum were Davis, See ing arguendo that the instructions can be Constitution. aggravat read to allow the to consider P.2d at 170-172. statutory ing circumstances outside of proper inquiry is whether the factors, no consti perceive we instructions were inconsistent with the Col infirmity. Supreme tutional Court sentencing scheme. We conclude orado summarized the minimum constitution they provision The relevant not. requirements capital sentencing pro al 16-11-103(2), provides, section which is following passage in the from cedure . part: 279,

McCleskey Kemp, (2)(a) hearing After all the evidence and 1756, (1987): arguments prosecuting attorney since Furman sum, In our decisions defendant, shall deliber- constitutionally permis- identified upon ate and render a verdict based range imposing sible discretion following considerations: First, penalty. required death there is (I) least penalty the death Whether at one threshold below which context, imposed. In proved cannot this factor has been as enumerated (6) section; rational criteria that State must establish subsection of this judgment narrow the decisionmaker’s (II) Whether sufficient a partic- to whether the circumstances of outweigh any aggra- exist which ular meet the defendant’s case threshold. exist; vating factor or factors found Moreover, a societal consensus that penalty disproportionate to a (III) Based on the considerations particular prevents a from offense State (I) (II) subparagraphs para- this imposing the death for that of- (a), graph whether the defendant Second, fense. limit the States cannot should be sentenced to death or life any sentencer’s consideration of relevant imprisonment. circumstance that could cause to de- added.) (Emphasis We believe that In- penalty. re- impose cline 21, Nos. spect, channel the sen- structions the State cannot context, whole, discretion, to when read in and as a con- tencer’s but must allow it responsibility veyed of- their under consider relevant information 11—103(2)(a) reaching fered defendant. section a deci- 16— claim, argument by jury really process a due we do defendant’s instruc- so right separately. tions denied him his constitutional to trial not address sion on life or death.19 We also cy, conclude may be considered extenuating as that the trial court did not commit reversi or reducing degree culpa- moral failing give error in ble the instructions bility. tendered the defendant. (Emphasis added.) instructions, These Van, 932, (Colo. Nhan Dao 681 P.2d anything, explicit were more and favorable 1984). to the defendant than the instructions constitutionally adequate found in Boyde v. VII California, 110 S.Ct. at 1199-1201. We requested The defendant that the follow- find no error in the failure of the trial court ing instruction be read to the at the give portion this of the instruction. conclusion of the sentencing phase: part The second requested part trial, At the first of the I instruct- instruction was: “You must not be influ you you ed swayed to be by prejudice, enced public opinion bias or However, by sympathy. part in this against Rodriguez.” Mr. The defendant the trial permits you the law to be influ- authority holding cites no that such an by mercy, enced sympathy sentiment and given instruction must be at Rodriguez for Mr. mitigating circum- phase of a trial. Young See stances. You must not be influenced 62, 64, People, 180 Colo. 82-83 prejudice, public opinion bias or against (1972)(defendant authority sup cited no in Rodriguez. Mr. You must not be influ- port of contention that he was entitled to by sympathy enced against for the victim anti-sympathy preju instruction to offset Rodriguez. Mr. dice in case, sensational rape homosexual The trial court refused the instruction. none). and court found argues The defendant give that failure to It would not have been error for the rights instruction violated his under the given court to part the second right by jury,20 to trial process, due requested instruction. prohibition generally See 23A against cruel pun- and unusual (1989). C.J.S. Criminal Law at 216 provisions ishment of the state § and federal hand, Constitutions, giving On the other of a caution- as well as under section 16- ary admonitory instruction such as 11-103. is within the discretion the trial court requested instruction has and we will not reverse absent abuse of First, components. three it tells the prejudice discretion and demonstrated they may mercy influenced to the defendant. Young People, sympathy for the defendant as Colo, 82-83; at 502 P.2d at Luna v. circumstances. The instructions as 1, 5, People, Colo. P.2d 725-26 given adequately instructed the (1969); State, see also York v. 566 S.W.2d responsibility

their give to consider and (Tex.Crim.App.1978). effect to relevant evidence. See 15, 20, Instructions example, Nos. 26. For guilt was instructed part: Instruction No. 26 stated in phase prejudice not to let influence their “Mitigating circumstances” are cir- any decision. In the change absence of cumstances which do not constitute a necessitating circumstances ad- another justification or monitory instruction, excuse for the offense in we conclude that the question, which, but or mer- trial court did not abuse its discretion in fairness 19. Instruction No. 16 stated: added.) (Emphasis Similarly, step your provided part The first Instruction No. 19 deliberations is to statutory ag- alleged [statutory] consider whether one or aggravat- more seven "[t]hese gravating present. factors is No other cir- only aggravating factors are the sufficiently aggravating cumstances are support may consider in this case.” consideration of the death Thus, Colorado. no other 20. See footnote 18. circum- by you stances shall be considered time during your deliberations. counting process aggra- part the defendant’s in which

refusing the second of mere vating weighed against mit- are requested instruction. Rather, process igating it is a factors. Finally, trial did not err the court you apply your rea- in which must part that instructed refusing the third judgment deciding whether soned against the influenced the not be imprison- situation calls the life for the victim. sympathy defendant requires imposition or the the ment of proper an instruction was dur While such penalty, light totality the of of phase, it guilt the would have been present. the circumstances phase the for the improper not The number is B in Part II above. Nor expressed reasons of factors found jury may emphasize The determinative. the refusal of the instruction violate did partic- another in a one factor more than Maryland, 482 Booth v. U.S. — the rela- Gathers, ular case. You must consider or South Carolina substantiality persuasiveness and of -, II tive 109 S.Ct. 2207. See Part C aggravating mitigating existing and above. making factors in this determination. VIII added.) disagree (Emphasis We with alleged It is the defendant these instruc- defendant’s assessment that Nos. 15 and 21 were unconsti Instructions unconstitutionally tions foreclosed pro by jury, the trial due tutional under any from consideration of the number cess, against and un prohibition and cruel mitigating The and factors. punishment provisions usual the federal properly instructions told the supposed Colorado Constitutions. statutory weighing process did not involve offending parts are follows: counting We conclude merely process. were consistent with instructions NO. 15 INSTRUCTION did the federal the statute and not offend or Constitutions. state your step deliberations third weighing specified ag- of the involves IX against gravating any factor or factors prosecution’s theory at trial was that may and all factors.... You sodomized, tortured, raped, the defendant you assign any weight ag- wish to each killed victim own and then with his or factor. gravating mitigating It is the theory hands. The defense was that weight assigned factor, to each and not prosecution’s evidence that David showed the number exist factors found Martinez, Rodriguez, per- Frank to be that is considered. At sonally Martelli. murdered Lorraine guilt of the evidence of the conclusion INSTRUCTION NO. phase, trial court instructed responsibility principle criminal under the step third of your deliberations complicity.21 weigh must factor the failure against found to The defendant maintains that or factors exist anti-complicity his give of the trial court to all factors. This is knowledge complicity The defendant must have had instruction stated: 3. that the other 21. Th.e person all intended commit person guilty A of an offense committed part or of the crime complicitor. person he another To abet, aid, intentionally The defendant did 4. following guilty complicitor, as a must advise, encourage person in the other beyond a be established reasonable doubt: planning of commission or the crime. A1. crime must have been committed appealed guilt phase The defendant has not person all Another must have committed trial, respect and thus raises issue with part crime propriety complici- correctness ty instruction. 989 sentencing phase I give you at the which to the evidence instruction22 principles presented. trial violated the Tison v. Ari

zona, 107 S.Ct. your duty It is first to determine the (1987)(eighth amendment does L.Ed.2d you facts from the evidence have heard where not forbid death sentence defen during guilt the first trial on or inno- participation felony in that results in dant’s cence as well as the additional evidence killing major and defendant’s mental presented during penalty is phase hear- state is at least a reckless indifference to ing. you Then are to evaluate those life), Florida, requirements human and Enmund v. light in set facts 3368, 73 L.Ed.2d 1140 U.S. in these instructions. forth (1982) (eighth prohibits death amendment added.) (Emphasis Instruction No. stated disproportionate as for defendant that “the evidence in the hear- killing felony who aids and abets which completed has been and I will now kill, place not himself takes but who does you (Emphasis instruct on the law.” add- kill, attempt killing or intend that take ed.) sentencing phase instructions did used). place or that lethal force be suggest themselves that the defen- culpability dant’s individual or blamewor- Initially, reject premise that we depend complicity princi- thiness could jury complicity have carried the would ples. through penalty phase instruction to the however, significant, Even more anti-complicity the absence of an instruc found, jury unanimously that the a complicity tion. The instruction stated doubt, that killed reasonable the defendant “guilty of an offense the defendant special In Lorraine Martelli. their verdict person” if four by committed another factors, form on con The instruction listed conditions were met. intentionally cluded that “[t]he defendant only by applicable terms was thus its own person kidnapped being held as killed phase to the in which the determined hostage by anyone him or associated with guilt sentencing phase or innocence. added.) (Emphasis Instruction No. him.” “guilt” instructions did not use the words 27 stated: referring “guilty” except when A crime is committed when the defen- guilt phase and in Instruction No. 19 which voluntary act dant has committed part: provided, culpable mental prohibited law you found Mr. Rod- The fact that have per- Voluntary act means an act state. riguez guilty of the crime of murder consciously result of effort formed as a degree the first is not an or determination.... Except required by the al- factor. leged aggravating factor No. f listed “intentionally” person A acts or “with you the fact Instruction No. objective conscious is to intent” when his Rodriguez guilty found Mr. of oth- proscribed by specific cause the result aggravating factor. er crimes is not an defining the offense. the statute added.) No. 1 told (Emphasis Instruction added.) (Emphasis Because the found apply the rules of that it was it was the beyond a reasonable doubt that given during sentencing phase: law intentionally killed the vic- defendant who error, tim, error, in not if there was During pen- of the trial and the course in- anti-complicity you giving all of the the defendant’s alty phase hearing received struction, beyond a reason- may was harmless you properly consider evidence We note also Your decision must able doubt. to decide the case. beyond a reasonable doubt law found by applying made the rules

be You are instructed provided: the actions of another. instruction 22. The tendered penal- principle apply trial, does not that this part in- the first of this ty phase trial. principle complicity, of this structed on the may criminally person be liable for which a Eisner, Mr. sit down and Court: intentionally. Enmund acted defendant Tison, quiet. inapplicable. See therefore 1687.23 107 S.Ct. at added.) presumption is a (Emphasis There prepared by the court the record as

X proceed- the correctly reflects trial reporter duty reporter has ings because the court defendant’s final conten The testimony accurately record all to made the trial tion is that comments 13-5-127, 6A rulings the court. § prose during judge to defense counsel Court, (1987); v. District C.R.S. Jones overly harsh closing argument were cutor’s (Colo.1989). The unsworn P.2d The reveals require reversal. record appellate counsel defendant’s assertions of trial following exchange between “Appendix 1” are insuffi- his brief counsel: judge and defense The presumption. overcome this cient to very It’s a rare combina- [Prosecutor]: support the defendant’s record does not tion and a defendant crime judge improper the trial made claim that statutory many crite- so satisfies deprived to defense counsel remarks ria. a fair trial. United the defendant of See Objection, judge, counsel]: [Defense (10th 707 F.2d Crawford, States any comparison to this to other cases. Cir.1983). Let Mr. Silver- The Overruled. Court: defense counsel We not believe that do argument. man finish his reasonably interpreted the trial have could please court Can the counsel]: [Defense foreclosing further comments as court’s right object? tell I have a improper argument. objections to We valid The Mr. Eisner. Court: object did sub- note that defense counsel judge. you, Thank counsel]: [Defense prosecu- sequent statements made his The Let Mr. Silverman finish Court: event, any during argument. their tors argument. even if we assume that defendant’s clarifica- Just for counsel]: [Defense judge’s the trial comments is version of tion— correct, harmless we find those comments Eisner, please have a The Mr. Court: beyond a reasonable doubt since we have seat. arguments prosecutors’ as if reviewed accompany- appellate In his brief and objections contemporaneous there had been 1,” appellate ing “Appendix defendant’s made. Part II above. See but unsworn ver- counsel a different happened: of what

sion XI The Overruled. Mr. Eisner sit Court: required We are also to review his let Mr. Silverman finish down and it defendant’s sentence to ensure that was argument, any objec- without further improperly. not arrived at Section 16—11— tions. 103(7) provides, part: please court Can the counsel]: [Defense (a) im- Whenever a sentence death is right object? tell the I have a posed person pursuant upon a Eisner, up Mr. and sit Court: shut section, supreme provisions of this down. propriety court shall review the you, judge. Thank counsel]: [Defense sentence, having regard to the nature Mr. his Court: Let Silverman finish offense, record of the character and argument, interruption. without offender, interest, public and the clarifica- im- Just manner which the sentence was counsel]: [Defense posed, including sufficiency tion— accu- question considerably 23. We do not reach the whether tendered broader than the have error for the trial court to holdings justi- would been Tison would either or Enmund fy. anti-complicity given as re- instruction note, however, quested. We that the instruction racy of the information on which it was APPENDIX A procedures employed based. The to be sentencing statute in effect provided by in the review shall be as offense, on the date of the November supreme court rule. 16-11-103, (1978 was section 8 C.R.S. (b) A sentence of death shall not be im- provided, & 1984 Supp.). It in relevant posed pursuant to this section the su- part: preme court determines that the sen- Imposition 16-11-103. of sentence in imposed tence was under the influence of appellate class 1 review. felonies— passion prejudice other arbi- (1)(a) Upon guilt conviction of of a defen- trary present- factor or that the evidence dant of a felony, class 1 the trial court support ed does finding not of statu- shall conduct a separate sentencing hear- tory aggravating circumstances. ing to determine whether the defendant 4(e); Davis, See also C.A.R. should be sentenced to death or life im- P.2d at 212-213. prisonment. ... The hearing shall be We have reviewed the record in this case conducted judge the trial before the great with care. We conclude that there practicable.... trial as soon as overwhelming evidence of the defen- (b) All presented evidence by either guilt personal dant’s participation and in prosecuting attorney or the defen- kidnapping, sexual assault and murder dant that the court deems relevant to the of Lorraine Martelli. The record contains crime, nature character, of the and the ample supporting jury’s evidence find- background, history and of the defen- statutory of the aggravating factors. dant, including any presented evidence in mitigating We have examined the evidence trial, guilt phase any of the and mat- offered and jury properly find that relating any ters aggravating mitigating concluded that the factors did or factors enumerated in sub- statutory aggravating (5) (6) section, sections and may of this be factors found. presented. Any such evidence which the This was a particularly piti- brutal and probative court deems to may value less murder. The defendant has demon- received, long be party as each remorse, perpetrated strated no similar given an opportunity to rebut such evi- past, crimes and assaults and was on (1) dence. This subsection shall not be parole kidnapping raping for and another construed to authorize the introduction woman at the time he committed this latest any evidence secured in violation of improperly offense. The did not con- of the Constitution United States or clude that appropriate pun- death was the prosecuting attorney of Colorado. The ishment for this defendant. We also hold and the defendant or his counsel shall be imposed that the sentence was not under permitted present arguments for or passion prejudice the influence of or or against a sentence of death. The arbitrary other factor. imprisonment life shall be instructed that Accordingly, judgment we affirm the and possibility pa- means life without the stay sentence of death. We dissolve the twenty years. role for calendar execution and remand to the trial court to imposition set date for death sen- (d) proof ag- as to the The burden of tence. gravating factors enumerated subsec- (6) beyond a tion of this section shall be C.J., QUINN, dissents. doubt. There shall be bur- reasonable LOHR, J., dissents, C.J., QUINN, joins proving disproving proof den of as to or dissent, KIRSHBAUM, J., in the and mitigating factors. 11(A) joins part of the dissent. (2)(a) hearing After all the evidence dissents, attorney KIRSHBAUM, J., arguments prosecuting of the defendant, shall deliber- QUINN, C.J., and the joins in the dissent. pros- constitute a defense

paired as to ecution; or upon the based a verdict and render ate (c) unusual and substan-

following considerations: He was under duress, although not such duress as tial (I) at least one Whether prosecution; a defense to constitute enumerated proved as been factor has section; (6) of this the offense (d) principal He subsection was a another, but his committed which was (II) sufficient Whether minor, relatively al- participation was outweigh any aggra- exist which exist; minor as to constitute though not so found to vating or factors factor prosecution; or defense fore- (e) reasonably have He could (III) on the considerations Based in the course his conduct (I) (II) seen that para- of this subparagraphs he of the offense which commission should the defendant (a), whether graph cause, cre- or would would imprison- was convicted life to death or sentenced causing, death to grave risk of ate a ment. person; another (b)(1) that no In the event (f) of the defen- The emotional state as enumerated to exist factors are found crime was commit- section, at the time the (6) dant of in subsection ted; or imprison- of life a verdict render shall pri- shall sentence any significant the court (g) ment and The absence of imprisonment. conviction; life to or or defendant a verdict coop- not render (II) (h) shall of defendant’s The extent specifies finds and unless it officers or of death with law enforcement eration prose- writing that: office of the agencies and with the attorney; cuting or district factor (A) one At least alcohol; proved; drugs or (i) of has been The influence or (B) are insufficient There mistaken, faith, although good to

factors (j) proved. factors that that circumstanc- factor or the defendant belief jus- a moral es which constituted to existed jury’s verdict is (c) In the event conduct; or for the defendant’s tification death, shall be such verdict to sentence binding upon the continuing be (k) and shall is not a unanimous The defendant determines, and court; the court society; unless or to threat and rea- writing the basis sets forth (l) which Any other evidence determination, that the ver- such sons for question on the opinion bears court’s clearly as erroneous dict of mitigation. evidence, in weight contrary section, aggra- (6) of this purposes For shall sentence case the court which following vating shall be the imprisonment. life defendant factors: is not unani- (d) jury’s verdict If the (a) felony committed The class was discharged, and mous, be shall imprison- by person under sentence the defendant shall sentence the court felony as a class or ment for imprisonment. life States law or United by Colorado defined against law, committed or for a crime section, mitigat- (5) purposes of this which For the United States another state or following 2,1, felony factors: be or 3 factors shall class would constitute law; or Colorado defined (a) age of the defendant crime; previously or con- (b) time of was The defendant 1 or this state of a class wrong- victed in (b) appreciate capacity to His specified felony involving violence as his of his conduct or to conform fulness 16-11-309, previously con- or was section law requirements conduct United or the by another state im- victed impaired, but not so significantly support finding ed does not statu- tory aggravating offense which would consti- States of an circumstances. felony involving 1 or 2 vio-

tute a class (8)(a) any provision If of this section or law in sec- lence as defined Colorado application any person thereof to or 16-11-309; or tion circumstances is held invalid or unconsti-

tutional, invalidity such or unconstitu- tionality provisions shall not affect other (d) intentionally killed a The defendant section, applications or of this which can person kidnapped being or held as a hos- given by anyone him with effect without the invalid or tage by or associated him; provision application, unconstitutional or provisions to this end the of this

(e) party The defendant has been section are declared to be severable. person in agreement to kill another (b) person which a has been imposed furtherance of If death sentence is killed; intentionally upon pursuant provi- a defendant imposition of this

sions section and the upon such death sentence such defendant (g) committed a class The defendant unconstitutional, is held invalid or said and, felony or in or 3 the course of returned to the trial defendant shall be flight furtherance of such or immediate court and shall then be sentenced to life therefrom, intentionally he caused the imprisonment. person than one of the death of a other

participants; or APPENDIX B

(h) felony The class 1 was committed pecuniary gain; for or INSTRUCTION NO. 1 jury, the evidence in this Members the of- (j) The defendant committed penalty phase hearing completed. has been heinous, cruel, especially in an or fense you In a moment I will read the law which manner; depraved or your you apply must in order to reach (k) felony The class 1 was committed sentencing decision.... purpose avoiding preventing of or During penal- the course of the trial and prosecution, or or effect- a lawful arrest ty phase hearing you received all of the escape custody. This factor ing an from you may properly evidence that consider killing include the intentional of a shall the case. Your decision must be decide to a criminal offense. witness I by applying made the rules of law which (7)(a) Whenever a sentence of death give you presented. evidence to the imposed upon person pursuant duty your It is first to determine section, supreme provisions of this you heard facts from the evidence have propriety of that court shall review during guilt the first trial on or innocence sentence, having nature of regard to the presented as well as the additional evidence offense, character and record of phase hearing. Then during penalty offender, interest, public and the light of you are to evaluate those facts im- manner in which the sentence was in these instruc- requirements set forth sufficiency and accu- posed, including the tions. racy on which it was of the information employed procedures to be based. INSTRUCTION NO. provided shall in the review be supreme court rule. in the jury, the evidence Members of completed hearing

(b) sentencing has been A sentence of death shall be you on the law. After if the I now instruct imposed pursuant to this section will closing argu- and after that the sen- these instructions supreme court determines counsel, your duty it will then be influence of ments imposed under the tence FRANK D. RODRI- decide whether prejudice any other arbi- passion or put or whether be to death present- the evidence GUEZ should trary factor or that effecting prosecution, or an es- arrest or imprison- custody. life shall in- cape sentenced to from This factor he should be killing a witness ment. the intentional of clude a criminal offense.” 3NO. INSTRUCTION presumes a defendant con- The law NO. 10 INSTRUCTION is innocent of offense victed of concerning introduced Evidence been presumption any aggravating factors. George Stapleton by alleged shooting an alone, is, justify a sufficient of innocence Defendant, Rodriguez, on No- Frank D. aggravating exist. finding that 1984. You are instructed vember reason- beyond a you are satisfied Unless but not Rodriguez Mr. has been accused one proof least able doubt factor, presumed to on this matter and is you are instructed to tried charges D. arising FRANK all out return a verdict innocent of prison. to life in RODRIGUEZ incident. the burden of never has Defendant is to be considered This evidence aggravating factor alleged that an proving determining wheth- only purpose for the exist, nor the Defendant does does not beyond a proven er or not the produce witnesses or obligation to have an factor reasonable doubt question of whether evidence on the that: exists. alleged aggravating factor pur- committed for the “The murder was death, you verdict of In order to return a avoiding preventing a pose of lawful beyond a reasonable

must be convinced effecting prosecution, or an es- arrest or factor or factors do doubt in- custody. This factor shall cape from any aggravating factors killing a witness the intentional clude the death found to exist and that a criminal offense.” penalty. appropriate INSTRUCTION NO. 8NO. INSTRUCTION certain evidence for a The court admitted have to be mitigating A factor does not purpose. limited You proved by any proof. burden of must mitigating find that a factor exists there you instructed to At that time it. any support evidence any purpose other than the consider it for purpose for which it was admitted. limited NO. 12 you cannot INSTRUCTION again instructed that

You are for a limited consider evidence admitted presumption imprison- a of life There is purpose limited for purpose except for the prosecution in ment this case. Unless which it was admitted. proves beyond reasonable doubt of life in sentence be death instead should 9NO. INSTRUCTION you prison, must return a verdict of life concerning been introduced Evidence has prison. presumption imprison- This of life assault, degree allegations of first sexual Rodriguez through- Mr. ment remains with felony degree kidnapping, and me- second prosecu- proceedings, out these unless the Judy Defen- nacing of Archeluta beyond a proves your tion satisfaction dant, Rodriguez. Frank D. Rodriguez Mr. reasonable doubt by you considered This evidence to be being put death instead of should be only purpose determining wheth- prison. sentenced to life proven beyond er or not aggravating factor reasonable doubt NO. 13 INSTRUCTION that: mitigating pur- you If decide that no factor for the "The murder was committed mitigating or pose avoiding preventing exists or that a factor factors a lawful the existence of specified ag- at least one outweigh aggravating do factor gravating beyond factor a reasonable exist, you may found sentence the De- If jurors doubt. one or more finds that prison. fendant to life in specified none of the aggravating factors proven beyond been a reasonable INSTRUCTION NO. 14 doubt, then the result is a sentence of life Before a verdict death imposed can be imprisonment. If only jurors if all extent, it must be unanimous. To this agree that one or specified aggravat- more requirement case, any is similar to criminal ing factors have proven beyond been “guilt-or-innocence” such as the first half doubt, you reasonable then proceed should case, of this where “verdict” must be step your second deliberations. unanimous. step The second in your deliberations is However, you must understand that if to decide whether mitigating factors

your verdict cannot be unanimous all have been shown to Mitigating exist. respects, then the jury discharged shall be factors include but are not limited to the and the Court shall sentence the Defendant mitigating factors listed in Instruction No. imprisonment. to life 20 which follows later. Thus, you before can return a verdict case, you death must all unanimous- step your third deliberations in- ly agree on such a may verdict. You also weighing volves a specified aggra- unanimously impris- reach a verdict of life vating factor or against any factors and all onment. If unanimously cannot reach mitigating may factors. You only consider way other, a verdict one or the the fore- those or factors [sic] person Court, notify shall so and the found to exist a reasonable doubt. imprison- result will be a sentence of life may You assign any weight you wish to imposed by ment the Court. each factor. It weight assigned factor, is the to each INSTRUCTION NO. not the number of factors found to exist Your place deliberations must take in a that is to be considered. If one or more certain order and legal within certain finds sufficient factor or guidelines. Colorado law allows specified factors exist that ag- penalty only prosecution, if the in addition gravating factors, factor or then the result proving Murder In Degree, The First imprisonment. is a sentence of life If and proves beyond also a reasonable doubt only if finds that one

that: or more specified aggravating factors 1. or specified aggra- One more of the factors, mitigating vating then beyond factors exist a reason- should doubt; proceed able step. to the fourth exist; 2. No factor or factors step The your fourth in deliberations is or to decide whether the defendant should be 3. No factor or factors out- sentenced imprisonment. to death or life weigh aggravating factor or This solely your decision is in discretion. beyond factors found to exist a rea- jurors impris- If one or more finds that life doubt; sonable appropriate penalty, onment is the then the 4. That appropriate punish- death is the imprisonment. result is a sentence of life in ment this case. you unanimously agree Unless must, You therefore deliberate in a ser- prosecution proven pen- has that the death steps. ies of alty appropriate punishment beyond is the doubt, you The a reasonable must return a ver- step your first in deliberations is to decide prosecution proven prison. whether the has dict of life in given by imprisonment

life shall be effect you by it is overcome until unless INSTRUCTION NO. prosecution beyond a reasonable doubt. during step lead Your deliberations one can your step The in deliberations is to first one of three results: statutory one or more consider whether jurors 1. or more believe If one present. No aggravating factors is other proven prosecution that the has sufficiently aggravating circumstances are be- aggravating or more factors one support penal- consideration of the death doubt, you a then yond reasonable Thus, aggravat- ty in no other Colorado. imprison- enter a verdict of life shall circumstances shall be considered ment. your you during time deliberations. jurors agree prosecu- 2. If all aggravating upon by factors relied proven tion has not the existence are: prosecution this case be- aggravating one or more factors (a) intentionally killed a The defendant doubt, you yond a then reasonable person kidnapped being as a or held imprison- of life shall enter verdict hostage anyone himby or associated ment. with him. agree that unanimously If all (b) the offense The defendant committed proven the prosecution exist- heinous, especially an cruel or de- or more ence one praved manner. doubt, factors a reasonable (c) you your committed for the shall continue deliber- The murder was then in- avoiding going on to the next

purpose preventing ations prosecution, or ef- lawful arrest struction. custody.

fecting escape from This an include the intentional factor shall NO. 19 INSTRUCTION killing of criminal of- a witness alleged aggravating factors These seven fense. you may only aggravating are the 14, 1984, (d) On the Defen- November case. consider imprison- was dant under sentence you found Mr. Rodri- fact that felony as ment for a class 3 defined guez guilty of the crime of murder in the law. by Colorado degree first is not an factor. (e) party Defendant was Except alleged aggra- required kill Lorraine Martelli agreement to vating f factor No. listed Instruction No. Lorraine Mar- of which furtherance Mr. the fact that have found Rodri- intentionally killed. telli guez guilty aggra- of other crimes not an one, (f) a class The Defendant committed vating factor. felony two, three class or class furtherance of the the course of or in INSTRUCTION NO. intentionally

felony, he caused may mitigating You consider as factor one of person of other than death you may Mr. any doubt have about Rodri- participants. case. guez’s role or actions this the First (g) The Defendant committed pecuniary gain. may mitigating as a factor Degree Murder for You consider Rodriguez’s have that Mr. co-defendants aggra- these you discussed After pen- than sentences less the death received vating factors, you take a vote shall alty. prosecution has determine whether mitigating may You consider as a factor of one or more proven the existence of early family upbring- Rodriguez’s beyond a Mr. reason- these factors ing. presumption in favor of able doubt.

shall enter a verdict of imprison- life ment. may mitigating You consider as a factor jurors 2. If all unanimously agree that Rodriguez’s relationship Mr. with his fami- a mitigating factor or factors out-

ly. weigh the aggravating factor or may You mitigating consider as a factor exist, factors found to then drugs the influence of and alcohol on shall enter verdict of imprison- life Rodriguez’s Frank behavior. ment. may You consider mitigating as a factor If all unanimously agree that evidence of remorse the Defendant. there are mitigating factors or there are not sufficient mitigating may You mitigating consider as a factor outweigh factors that aggravat- any other factor which constitutes a reason exist, factor or factors found to imposing for not a death sentence. then the shall determine if death appropriate is the punishment in this INSTRUCTION NO. case. If in the steps your first two delibera- you tions have made findings unanimous INSTRUCTION NO. prosecution proven beyond has you Each of must also your- decide reasonable doubt that one or aggra- more self weight give what mitigating each vating mitigating factors exist and that no you circumstance that find exists. Your exist, factors or that a factor or decision as to weight give what any exist, factors you must now decide whether mitigating circumstances does not have to prosecution proven any factors be unanimous. You do not have to take mitigation aggravat- do not decisions, opinions feelings or ing factor or factors. juror account, although other into you may step your the third deliberations you do so if wish. you weigh must factor or factors found against any to exist and all INSTRUCTION NO. 23 mitigating factors. This is not a mere The manner inflicting punishment counting process in which aggravating of death in the State of Colorado is weighed against are administration gas. of lethal You must Rather, factors. process it is a in which assume that the of death will be apply your must judgment reasoned if imposed by pursu- carried out the Court deciding whether the situation calls for life ant to the verdict. imprisonment requires imposition or penalty, light totality of the INSTRUCTION NO. 26 present. circumstances The number of factors found is not deter- “Mitigating circumstances” are circum-

minative. may emphasize one justifica- stances which do not constitute a factor more than particular another in a question, tion or excuse for the offense case. You must consider the relative sub- which, mercy, may but fairness stantiality persuasiveness of the exist- extenuating reducing considered as ing aggravating and mitigating factors in degree of culpability. moral making this determination. during Your step deliberations INSTRUCTION NO. 28

proceeding can lead to one of three results: 1.If one or more of the believe

that a factor or represent factors Your must decisions the con- outweigh aggravating judgment juror. factor or sidered In each order exist, factors found to jury sentencing then the to return a decision the Defen- imprison- life

sions on the ultimate issue of juror No. 25 served necessary agree or death.” Instruction dant, it that each ment is be sentencing purpose decision must other than to add the uncer- to it. Your unable to unani- respect jury If are tainty unanimous. with whether the decision, sentencing mously agree on a responsibility the court had the ultimate sign Report of your foreperson shall determining of the appropriateness for Inability a Verdict. to Reach case. death sentence this I Lohr’s observations agree with Justice dissenting: QUINN, Chief Justice verdict forms instructions and comply this court’s in this case did not with Justice Kirsh- Lohr’s and join I in Justice Tenneson, 788 P.2d People decision sepa- and dissenting opinions write baum’s (Colo.1990). requires the tri- Tenneson infirmities point additional rately to out jury that it must be al court to instruct the which, conjunction with the errors out- Kirshbaum, beyond a reasonable doubt not im- convinced Lohr lined Justices certainty only any mitigating factors do not reliability constitu- paired the factors, proven death sentence and tionally aggravating essential of the concomitantly penal- the fairness appropriate vitiated is but also that death sentencing hearing. capital may ty, of death be before sentence here, I imposed. simply repeat I as would required constitutionally elements (Quinn, Davis, P.2d at 218-219 did in certainty mandate that reliability and C.J., dissenting), that I continue to adhere responsi- believe jury not led to the formulation to the view appro- determining the ultimate bility for “proof beyond a reasonable doubt” stan- sentence rests else- priateness of a death in terms of factors dard Mississippi, 472 U.S. where. Caldwell outweighing any proven aggravating (1985); 320, 105 incompatible factors with federal Drake, (Colo.1988); P.2d 1237 People v. applicable to constitutional standards state (Colo.1984). Durre, P.2d 165 People v. sentencing hearing. capital See Tenne- case, court instructed the the trial C.J., son, (Quinn, 788 P.2d at 802-08 dis- in Instruction No. 25 follows: senting). purposes that for You are instructed degree sentencing, Counts One [first certainty reliability essential to and Two

murder after deliberation] [felo- impaired in this a death verdict was further merge and the Defendant ny-murder] per- 16 and which case Instructions life sentence. receive a will aggravat- an jury to consider as mitted the must sentence the Defen- only Court the fact that the circumstance on Counts Three to a life sentence dant intentionally killed the victim defendant whether through Nine. The decision on he the fact that kidnapped, whom but also sentences, part impose all of those intentionally caused the the defendant them, consecutively, is concurrently or kidnapped victim in the course upon the Court. of the crime of second of or furtherance felony.1 degree kidnapping, a class two my I dissent As discussed duplicate use of the same This Davis, (Colo.1990) essentially pur- the same circumstances for C.J., (Quinn, dissenting), this instruction pose incompatible the constitutional with potential for confusion “created requirement advisory jury verdicts were whether the objective binding guide jury’s and focus the deci- scheme only or indeed were final and challenged its consideration the propriety in submitted following: The defendant "kidnapping” aggrava structing on the appen many as one of issues included in tor opening Instruction No. 16 dix his brief. listed as two of seven 999 LOHR, dissenting: particularized consideration of the circum Justice stances both the crime and offender In the death cases that have determining appro whether is the death court, this have consistently reached we punishment. See, e.g., Jurek v. Tex priate emphasized heightened degree of relia- as, 262, 273-74, 2950, bility certainty by 428 U.S. 96 S.Ct. and necessitated unique and nature of the death State, irrevocable Cook v. 2957, (1976); 49 L.Ed.2d 929 Tenneson, penalty. People v. 788 P.2d 786 1251, (Ala.1979); Randolph 369 So.2d 1256 Drake, People v. (Colo.1990); 748 P.2d State, 186,193 (Fla.1984), v. cert. 463 So.2d 1237, Durre, (Colo.1988); v. 1254 denied, 907, 3533, 473 S.Ct. U.S. 105 87 165, (Colo.1984). 173 doing, so State, v. (1985); Francois L.Ed.2d 656 407 we echoed the commands of the Unit- denied, 885, (Fla.1982), cert. So.2d 891 458 See, e.g., Supreme States Mills ed Court. 1122, 3511, 102 73 U.S. S.Ct. L.Ed.2d 1384 Maryland, 367, v. 383-84, 486 U.S. 108 State, 337 783, Provence v. (1982); So.2d 1860, 1869-70, (1988); L.Ed.2d S.Ct. 100 384 denied, (Fla.1976), 969, cert. 431 786 U.S. Ohio, v. 586, 604, Lockett 438 U.S. 98 S.Ct. 2929, (1977); 97 53 1065 S.Ct. L.Ed.2d 2954, 2964-65, (1978); Rust, v. 867, (Neb.1977); State 250 N.W.2d 874 Carolina, v. North 280, Woodson 428 U.S. denied, 912, rt. 434 U.S. 98 S.Ct. 303-05, 2990-92, 2978, 96 S.Ct. 49 ce L.Ed.2d v. 313, (1977); State Good L.Ed.2d 198 (1976). 54 I do not 944 Because believe that man, 1, 569, phase 298 N.C. 257 587 the of Frank D. S.E.2d Rodri- guez’s guarantees trial contained sufficient (1979). duplicate Such use the same required reliability level of and cer- aggravator very type “fosters the of arbi tainty, I respectfully dissent. trary capricious decision-making and that is constitutionally prohibited in capital sen I. Davis, tencing proceeding.” 794 P.2d at violating In order eighth to avoid (Quinn, C.J., dissenting). 221 1proscription amendment’s of cruel un unique

Because a sentence of punishments, capital sentencing usual require scheme must least severity finality, appellate its meet at two both First, ments. it must limit and direct the reviewing court a death verdict is constitu- e.g., Maynard discretion, sentencing body’s tionally obligated closely review 356, 362, Cartwright, v. 486 U.S. 108 S.Ct. Stephens, of error. Zant v. claim colorable 1853, 1858, (1988); 372 Booth 100 L.Ed.2d 2733, 862, 885, 2747, 103 462 U.S. S.Ct. 77 496, 502, Maryland, v. 482 U.S. 107 S.Ct. (1983). L.Ed.2d 235 The cumulative effect 2529, (1987); 2532-33, 96 L.Ed.2d 440 God case, errors in this both those out- 420, 427-28, frey Georgia, 446 U.S. 100 lined Justices Lohr and Kirshbaum in 1759, 1764-65, (1980); L.Ed.2d 398 S.Ct. 64 herein, dissents their and those mentioned Gregg 153, 189, Georgia, U.S. to a cannot resolved resort harmless 2909, (1976), 2932-33, 49 L.Ed.2d 859 S.Ct. analysis. impaired so error These errors thereby narrowing persons the class of eli reliability certainty constitutionally gible penalty. for the death Lowenfield mandated a valid death verdict and so 244, Phelps, 231, 546, U.S. sen- undermined fairness of Zant v. (1988); Ste 98 L.Ed.2d tencing hearing require as to that the death phens, (1983). Second, sentence be vacated. 77 L.Ed.2d (a) intentionally per- intentionally person The defendant killed a caused the death of a participants. kidnapped hostage other being than one of the or held as son that sec- Instruction No. 18 informed anyone with him. him associated degree felony. kidnapping a class two ond ****** Const, one, (f) The defendant committed class amend. VIII. The Colorado Con- 1. two, felony prohibits pun- and in class class three also cruel unusual stitution Const, II, felony, § of or in he Colo. art. course furtherance ishments.

looo under the United States eighth amendment sentencing body consid- permit must holding Maynard in v. Supreme Court’s con- mitigating evidence any relevant er 1853, 356, 108 S.Ct. Cartwright, U.S. 486 character and defendant’s cerning the (1988). Godfrey, 372 See also 100 L.Ed.2d the circumstances of background and 428-29, — 100 at 1764-65. 446 U.S. at California, U.S. E.g., Boyde v. crime. concludes majority this but The concedes 1190, -, 1196, 108 L.Ed.2d 316 110 S.Ct. presenting the erroneous instruction — -, Lynaugh, (1990); Penry v. jury as one of aggravator to 2946, 2934, 109 S.Ct. deciding employed in whether criteria Oklahoma, 455 U.S. (1989); Eddings v. to death was sentence the defendant 869, 874-76, 104, 110-12, 71 Maj. beyond a reasonable doubt. harmless (1982). 1 L.Ed.2d 982-983. op. at consti- comply with these In an effort to my dissenting I to adhere to continue legisla- the Colorado requirements, tutional (Colo. Davis, P.2d 159 People view procedure adopted has ture analysis 1990), error that such harmless First, steps.2 four distinct includes guess as to to “no more than amounts if at least one of jury must determine might had it have decided jury what the factors exists. statutory aggravating instructed.” Id. at 225 properly been Second, -(6). 16-ll-103(2)(a)(I), §§ J., dissenting); at 222 (Lohr, see also id. any mitigating must consider whether jury C.J., (Quinn, dissenting). The Colorado -(5). 16-ll-103(2)(a)(II), factors exist. §§ a fact-find penalty “requires statute Third, determine whether jury must aggra ing jury to balance proven reaching its ulti vating circumstances factors. statutory aggravating J., (Kirshbaum, Id. at 230 mate decision.” Fourth, 16-ll-103(2)(a)(II). finally, § contemplate dissenting). It does the defen- whether must decide determining whether a appellate court or to life to death should be sentenced dant had it have returned a death verdict would 11—103(2)(a)(III).3I imprisonment. § narrowly 16— instructed on more defined been instruc- in the hold that errors would Such a determination factors. steps require each of these governing tions inevitably appellate courts would involve reversal. weighing of redefined mitigating factors for the first factors and fact, appellate courts appeal. time on II. authority to do not have the this state fact-finding. People in re E.g., conduct phase presented penalty instructions 238, 242, D.G.P., 194 Colo. 570 P.2d jury: the to the aggravators two erroneous (1977); People, 168 Colo. Godfrey heinous, depraved ag- especially cruel 299, 301, (1969). This 451 P.2d impris- gravator the under sentence “engage in the authorized to court aggravator. onment credibility evaluation and evidentia- type of weigh- contemplated by the ry comparisons process required our death A. (Kirsh- Davis, statute.” trial court submitted J., baum, dissenting). statutory aggravating factor that de- “[t]he testimony and seen the witnesses heard espe- in an the offense fendant committed body adequate only possessing infor- is the heinous, cruel, depraved manner.” cially legal authority to find the facts mation and (1986). judgment This moral 16-11-103(6)0), 8A C.R.S. and to make the difficult § process. required by weighing aggravating factor violative greater substantially steps are detail These four described was amended 3. §2. 16-11-103 Tenneson, April 1 and Ch. secs. 788 P.2d at 789. 16-11-103, Colo.Sess.Laws 673-75. § Furthermore, question harm- cruelty under of the murder much compel- more ling than analysis the fact that the less error is “whether the error murder occurred under circumstances that legally would substantially influenced verdict af- second-degree amount to kidnapping. Un- proceed- fected the fairness of the trial weighing statute, der Colorado’s I do ings.” People Gaffney, v. believe that the mere number of valid stat- (Colo.1989); 1088 accord Kotteakos v. utory aggravators compensate can for the States, 750, 765, 328 United 66 S.Ct. possible single influence of a aggra- invalid 1239, 1248, (1946). L.Ed. In 90 1557 this vator. signifi- case the error is of constitutional majority’s The final reason for conclud- cance, therefore, and we must be satisfied aggravator that the invalid was harm- beyond a reasonable doubt it was that prosecution less that the “overly did not Texas, harmless. Satterwhite 486 U.S. rely stress or on” the invalid in its factor 249, 258-59, 1792, 1798-99, 108 S.Ct. closing. fact, In prosecution repeated- (1988); Chapman L.Ed.2d 284 v. Califor- ly emphasized argued what it to be the nia, 18, 24, cruel, depraved heinous and character of (1967). L.Ed.2d 705 killing. prosecution this The argued that Tenneson, In People we held that be- adjectives perfectly these fit the defen- death, fore a defendant a dant’s conduct and this aggravating that beyond weigh heavily must factor “has be convinced a reason- this case.” prosecutors One talked about the any mitigating able doubt that factors do blood and violence killing associated with a proven aggra- statutory by stabbing, referring thrusting a knife doing vators. In so we demanded from the in and out soft feeling human flesh and jurors high a level of confidence in their through the knife smash tissue arter- conclude, beyond decision. I cannot now organs. ies the vital He stated that the doubt, jury’s reasonable that the decision victim, defendant “butchered” his that the impose present the death in the killing method of “particularly despic- was aggra- case was unaffected the invalid able,” “gruesome,” “agoniz- that it was a vator. death, ingly slow” that can “[o]ne support its conclusion that submis- hardly imagine way worse to die.” The aggravator sion of the invalid was harm- prosecution repeatedly emphasized the bru- less, majority tality rapes preceded notes that the found of the the vic- tim’s death and invited statutory aggravators, five other to consid- that the disgusting er how anally would be to be aggra- defense counsel conceded that these raped prosecutors the defendant. The vating proven beyond factors had been eight during used word “torture” times doubt, reasonable there was “over- arguments. closing prosecution their whelming supporting” evidence those other argued that the defendant does cru- “these factors, pros- five that the things enjoys el heinous ... because he overly rely ecution did not on the invalid them.” characterizations the de- These statutory aggravator closing argu- in its fendant’s conduct are not relevant to other op. Maj. majority’s ments. 983. factors, statutory aggravating con- and the single first three contentions amount emphasis placed pros- on stant them the reason: existence of five valid ecution increases the likelihood that statutory aggravators makes the submis- cruel, especially de- invalid heinous or aggravator of a sixth invalid harmless. sion aggravator praved jury. influenced the I reject proposition. I this was am unable to conclude a reasonable statutory under instructed that Colorado’s doubt erroneous submission of number, weight, scheme the not the instruction was harmless. important. aggra- factors is Some various B. greater im- may have taken on far vators particular jurors. others for portance than The trial court submitted to the juror example factor that the defendant was might A found 1227, 1229, 108 L.Ed.2d imprisonment, see 110 S.Ct.

under sentence (1990); Mills, U.S. at 108 S.Ct. at (1986), 16-ll-103(6)(a), be- 8A C.R.S. § Rodriguez parole at the time cause my I to adhere to of the murder.4 continue argues instruction The defendant Davis, 794 dissenting view misinterpreted by have been no. could (Colo.1990), aggravator that this P.2d 159 unanimously require they to that the persons on to include not intended was mitigators. perti- It in agree states upon (Lohr, J., dissenting); 226 parole. Id. at part: nent C.J., (Quinn, at dissent- 219-221 see also id. steps your in first two delibera- the If tions ing). have made unanimous find- prosecution has be- proven that the ings interpreta support this reasons Several that one or yond a reasonable doubt lenity requires principle tion. The aggravating exist and that more factors adopt am to the construction court exist, mitigating or that a no factors the that favors biguous criminal statute exist, you mitigating Lowe, factor factors 660 P.2d People v. defendant. prosecution now decide whether the must (Colo.1983). drafter of the principal A proven mitigation factors in leg testified before a statute factor outweigh do not aggravator was that this islative committee or factors. “a is in person to apply intended to [who] added.) (Emphasis felony and mur prison serving a sentence Davis, at ISO- somebody.” 794 P.2d ders in considered an instruction identical We Finally, legislature’s subsequent unanimity respects issue all relevant to the in add provision amendment of Davis, in 194-196 “including period phrase (Colo.1990). I continue to adhere to the 16-ll-103(6)(a), parole, probation,” or on my expressed § in dissent from Davis view (1988 indicates an inten Supp.), 8A C.R.S. ambiguity of this instruction change preexisting law. See tion to impossible it to conclude that no makes (Colo. Lobato, 743 P.2d juror interpreted it Chames could have reasonable (“The when a 1987) general finding par- rule is that require a that a unanimous amended, presumed mitigating it is statute is factor existed before that ticular law.”). change legislature into intended factor could be taken consideration explained fully required step more weighing process are three These reasons J., (Lohr, Davis, dissent of the deliberations. 794 P.2d at ing). there is a “rea- question is whether jury interpret- sonable likelihood” that the

III. constitutionally im- ed the instruction way. permissible Boyde, 110 S.Ct. at 1198. permit sentencing must capital A statute might person If a reasonable derive an any rele body to consider meaning instruc- impermissible from the de regarding the mitigating evidence vant case, required. in a reversal is tions background, and fendant’s character States, 740, 752, v. United Andres E.g., the offense. the circumstances of (“In 880, 886, (1948) 92 L.Ed. 1055 S.Ct. 1196; Penry, 109 Boyde, 110 S.Ct. at presented death cases doubts such those United Constitution at 2946. The States here should be resolved favor capital sentencing permit a does not accused.”). sentencing body require scheme to only upon majority existence of that “the re- unanimously agree states unanimity imposed by quirements factors are mitigating factors before those finding speci- relate to the against factors. instructions weighed — U.S. -, verdict of Carolina, aggravating factors and the fied McKoy v. North appendix opening and mention in to his brief in the trial 4. The defendant raised this issue generally presented only appeal reply court but on brief. his in an in a list of additional issues contained Although death” and that was no affirma- are places there two in the “[t]here correctly instructions in which the tive instruction that the could not con- law is stated,5 por- the verdict forms and effect those give mitigating sider or to a factor provide tions of the instructions that de- op. Maj. unanimous.” guidance tailed step three of ignore conclusory 981. These statements its omit deliberations reference to the be- contention the defendant’s that instruction yond a doubt reasonable burden. The rele- interpreted impose such a may no. vant verdict form states:

unanimity requirement. We, find jury, that there are insuffi- emphasizes also majority cient required indicate verdict form aggravating factor or factors which have which factors it had found to proved prosecution been exist, 980-981, op. at the maj. and that reasonable doubt. jurors not instructed had to they were that paragraph of instruction no. 15 that mitigating vote on existence of factors. the explains step jury of the three deliberations Maj. op. Although at 981. the instructions only states and if the finds “[i]f explicitly such a may not have called for specified that one more aggravating vote, four-step the instructions establish a outweigh factors, mitigating factors the in jurors which the told to framework are proceed then should to the fourth mitigating decide in which factors exist step.” weight to step two and then to decide what no. 21 supplies Instruction the detailed step in assign those factors three. Instruc- jury in guidance conducting step for the its interpreted by tion 21 could be a rea- no. three deliberations. instruction states juror only sonable to mean that those miti- part: in gators unanimously step in found to exist jurors unanimously agree If all during in two remain consideration mitigating there are no factors or there weighing process step three. The vari- mitigating are not sufficient factors that in ous statements the instructions that the outweigh aggravating factor or jurors agree upon they not weight need exist, factors then the found shall assign particular mitigating do death is appropriate determine if this interpretation. not contradict punishment in this case. rele- Nowhere in instruction no. 21 is the

IV. proof vant burden set forth. I that the and also believe instructions Tenneson, qualita In we wrote “[t]he comply verdict forms this case do not tively unique irretrievably final nature requirements we enunciated in penalty with of the death ‘makes it unthinkable Tenneson, (Colo. People v. 788 P.2d 786 impose penalty the death 1990). Tenneson, pros we held that the they “a when harbor reasonable doubt ’ ” ecution convince the beyond justness.” (quot must 788 P.2d at 792 to its any mitigating doubt Bey, reasonable 112 N.J. 548 A.2d State outweigh proven (1988) (quoting Biegen statu factors do State v. wald,

tory aggravating factors and that 524 A.2d death 106 N.J. (1987))). emphasized the enhanced appropriate penalty. We specified aggravating part: no. 5. Instruction 3 states in One or more doubt; death, beyond a reasonable factors exist to return In order a verdict of exist; mitigating beyond factor or factors doubt 2. No must be convinced reasonable that a factor or factors do out- factor or factors 3. No weigh any to exist factors found aggravating factor or factors found penalty appropriate death is the doubt; and that the beyond a reasonable exist penalty. appropriate punishment is the 4. That death part: no. 15 states in Instruction in this case. only Colorado law allows the death prosecution proves heyond ... reason- that: able doubt _ Having reliability found that certainty and in death need for Id.; factor(s) beyond a reason- proven see sentencing proceedings. also evi- 1254; Durre, upon and based all the 690 P.2d able doubt Drake, we further find presented, the failure of the hold that dence at 173. I would punishment in appropriate instructions to com- is the form and these death verdict Tenneson, despite state- doubt. correct case a reasonable port with added.) instruc- (Emphasis the law elsewhere ments of tions, unacceptable risk that created ambiguity of these instructions appropriate bur- not consider did instruction to the omission of detailed step three deliberations. den in its step four is guide jury's deliberations light non- of the particular concern V. prose- emphasized by the statutory factors argument. closing For exam- cution its jury in- argues The defendant prosecution mentioned that the de- ple, the permitted improperly in this case structions someday escape if he were might fendant nonstatutory aggravat- jury to consider committing and that in prison, sentenced step four determination ing factors its engaged in the defendant had the murder penalty. appropriateness in The rarely seen Colorado.” “conduct majority apparently concedes jury about the prosecution also told the step limits the sentencing scheme Colorado City, prison in at Canon amenities available previ- considering the four deliberations support this man “[njobody wants how statutory aggravating factors ously proven life,” he “does of his and that for the rest Maj. any mitigating factors. along with all spark humanity we not have that therefore, question, op. at 985-986. have to live.” must in this case instructions is whether the interpreted to reasonably have been could guidance I that the limited would hold to consider other factors. permit with provided by the instructions combined relevant. prosecution's the instructions are discussion of non-statu- Several closing 15 states: in ar- tory aggravating no. its Instruction unacceptable risk that guments created is step your in deliberations fourth by was influenced jury's decision should the defendant to decide whether among comprehended are not factors that imprison- or life to death sentenced be may considered un- properly those that your solely is in This decision ment. statutory scheme. der Colorado's discretion. added.) Instruction no. (Emphasis part: in states VI. your is step in deliberations The first reliability we light heightened In of the statutory more one or whether consider consistently sen- demanded in death present. No oth- aggravating factors procedures, I would hold that the tencing aggra- sufficiently are er circumstances above, in singly and com- errors discussed of the vating support consideration bination, sufficiently the fair- undermine Thus, no oth- penalty Colorado. certainty of the death sentence ness and shall be aggravating circumstances er require I in this case to reversal. returned during any time at considered of death and reverse the sentence would your deliberations. with di- to the trial court return the case guidance provides no. Instruction impris- of life impose sentence rections jury during step its four deliberations. onment. “then the shall simply It states appropriate pun- if death is the

determine in this case.” ishment dissent, C.J., QUINN, in this joins 11(A) KIRSHBAUM, J., joins part perti- form states The relevant verdict this dissent. part: nent KIRSHBAUM, dissenting:

Justice ter and remanded the case for the further reason that it could not determine what 11(A) join part I of Justice Lohr’s dissent. analysis, harmless error any, the state The trial court instructed the that one appellate applied. court had Id. at 1451. of the aggravating upon by factors relied prosecution “especially was the hei- I assume that the majority has elected nous, depraved cruel and perform manner” which not to any appellate re-weighing particular evidence, crime was committed. This although its references to aggravator has been declared violative of this court’s recent decision in People v.

eighth amendment Davis, standards (Colo.1990), United 794 P.2d 159 cast doubt Supreme States in Maynard Court assumption. Cart- I continue to believe wright, 486 U.S. any appellate 100 that re-weighing of evidence (1988),by L.Ed.2d 372 this court in appellate authority of this Davis, (Colo.1990), court, cases, P.2d 159 and now especially where the majority Maj. op. this case. Assembly General has carefully allocated majority 983. The then declares that to the factfinder the sole authority to im- the trial every pose court’s violation of citizen’s a sentence of death. See Clemons v. right

fundamental protected to be from Mississippi, 1447; 110 S.Ct. at Hicks v. punishment cruel and unusual Oklahoma, must be 345-46, 2227, 2228-30, deemed harmless error because the evi- (1980); see dence Davis, established five other People v. (Colo.1990), 794 P.2d 159 factors and if properly (Kirshbaum, J., because instructed dissenting). would have found “that the mur- stating that the trial court’s constitu- der was pitiless, ‘conscienceless or harmless, tional error majority ini- unnecessarily torturous to the vic- [was] tially observes that the evidence admissible ” Maj. op. tim.’ at 984. to establish the aggrava- unconstitutional view, my In majority misapplies tor was also admissible to establish five — Mississippi, U.S. -,

Clemons v. aggravators. Maj. op. other at 983. The (1990), majority suggests the case also that if an instruc- upon purports which it to rely. properly tion limiting Clem the unconstitutional ons, Supreme Court held that aggravator the Mis given, had been the evidence Court, sissippi Supreme apparently which would have established the existence of possesses authority weigh newly or balance such aggravator. Maj. defined op. could, appeal,

evidence on consistent question with at 984. The balancing under our standards, federal constitutional undertake statute properly is what evidence was re-weighing process if, admitted, itself to determine or what facts were probably or aggravator, absent the unconstitutional beyond would have been established a rea- imposed would nonetheless have a sen sonable question doubt. ultimate and, tence of death. so, 110 S.Ct. at 1449. The whether if an appellate how court judgment court then reversed the and re can determine juror that one did not be- proceedings manded the case for further yond a give impermissible reasonable doubt whether, because it could not determine weight to the aggravator unconstitutional appellate re-weighing occurred, had was instructed to consider. The appellate “sufficiently empha state court suggestion that the existence of five other importance aggravators sized the of the sentencer’s con constitutionally-based satisfies mitigating sideration of a defendant's evi propriety concerns about the jury’s opined dence.” Id. at 1450. The court also weighing process contravenes our death that in circumstances statute, some a harmless er statute. Under that as the analysis might pass stated,1 ror constitutional mus- trial properly court’s instructions against any 1. Instruction No. as submitted to the mitigating found to exist and all following contains statements: counting process factors. This is not a mere step your aggravating weighed In the third deliberations in which factors are weigh aggravating Rather, against mitigating must factor or factors pro- factors. it is a had informed the cause the trial court influenced must not be sentencing jury especially hei- consider the it could the number nous, cruel, depraved factor and could when by the evidence factors established particular this factor alone maj. op. at conclude that factors. See weighing such in- Tenneson, outweighed mitigating all factors. The P.2d 786 973; People erroneous, however, I (Colo.1990). structions were beyond doubt conclude a reasonable cannot pointed out As this court juror or her either that reached his Tenneson, question by following instructions or decision these balancing our stat- jurisdiction under juror have reached the every would having found a jury, ute whether had if different instructions same decision could then aggravator, properly defined given. been a reasonable doubt conclude reasons, foregoing respectfully I did not For To determine that dissent. factors. fact a have found jury here would say I that Chief Justice am authorized which it was never instruct- about matter join in this dis- QUINN Justice LOHR murder was conscienceless ed—that sent. pitiless then determine —and in the same result have reached the would given is in it was of the instruction absence perform fact- require this court

effect to the Gener- balancing functions finding and dis- Assembly has committed sole al This of fact. form of the finder cretion harmless analysis, denominated whether ' this court re-weighing, turns into error or SULZER, Rash, and E. James James appeals from sentences super-jury Scheuren, Petitioners, Daniel statutory authority I find no capital cases. for such result. precedent law or common COMPA- MID-CENTURY INSURANCE disagree majority’s with the con- I also NY, Exchange, and Farmers Insurance overly prosecution did clusion that Farm Mutual Automobile Insur- State Maj. particular aggravator. emphasize this Company, Respondents. ance its initial comment on op. at 983. From No. 88SC354. (“This is rare- the evidence sort conduct Colorado”) through its reference ly seen Colorado, Supreme Court of aggravator given this weight to be en banc. (“Of course, aggravator applies to July 9, case; 1990. heavily weigh in this It case. way he nature of the

the cruel heinous July Rehearing Denied (“Re- her.”) to its final summation killed things you heard about all the member aggra- all murder and add

terrible factors”), empha- vating prosecution of the defendant’s brutal nature sized the prosecu- admittedly vicious conduct. justified doing so at trial be- tion was particular in a case. You apply your than another reasoned more in which must cess substantiality deciding judgment the situation whether relative must consider requires imprisonment existing aggravating life persuasiveness calls for imposition penalty, light of of the death making this determina- factors in present. totality the circumstances tion. not determi- of factors found is The number jury may emphasize one factor native.

Case Details

Case Name: People v. Rodriguez

Court Name: Supreme Court of Colorado

Date Published: Jul 30, 1990

Citation: 794 P.2d 965

Docket Number: 87SA48

Court Abbreviation: Colo.