*1 Colorado, The PEOPLE of the State of

Plaintiff-Appellee, DAVIS, Gary

Gary Lee Lee a/k/a

Gehrer, Defendant-Appellant.

No. 87SA288. Colorado,

Supreme Court of

En Banc.

May 1990. Rehearing

As Modified on Denial of

July

napping, conspiracy to commit second- degree kidnapping. chal- Davis does not lenge guilt phase of his trial but raises sentencing points numerous error phase challenges the facial constitu- tionality of the Colorado death statute. We affirm.

I. Background Factual Virgi- In the Gary summer children, May seven-year- nia two and their Krista, four-year-old old Brandon and lived Byers, on a ranch 25 miles northeast of County. Mays, Colorado in Adams The Virginia together May’s Rod father MacLennan, Scott, her brothers Dan MacLennan, ranching and Dave were February business. the defen- dant was hired a ranch hand to on work adjoined operated ranch which ranch Mays and the The MacLennans. Becky defendant and wife Davis1 took up in a house de- residence owned employer. Mays fendant’s The lived on portion of the MacLennan ranch closest to Woodard, Gen., Atty. Duane B. Charles According testimony the Davises. Howe, Gen., Deputy Atty. H. Chief Richard trial, presented Virginia the Davises met Gen., Petrusak, Forman, Robert Sol. M. May at met church. defendant had McGowan, Gen., Ap- Hope Attys. P. Asst. Gary May occasion when men the two Section, Bernard, Denver, pellate Steven L. proper- worked on line between a fence Gen., Atty. County Sp. Asst. Adams Dist. People presented ties. tri- evidence at Office, Brighton, Atty.’s plaintiff-appel- for spoke indicating al that the defendant often lee. employee a fellow his sexual desire Gilman, Shelley Gilman Pozner Hutt May, Virginia for as well as his desire for P.C., Denver, defendant-appel- Kaplan, for women, including May’s sis- various other lant. ter-in-law MacLennan. The co-worker Sue Gary whenever he and Davis Allen, testified that Mary Springs, Colorado G. resi- repaired May fence closest to the Bar. amicus curiae Colorado Crim. Defense working otherwise in that dence or were area, Davis made obscene remarks about MULLARKEY Justice delivered for various women. On his sexual desires Opinion of Court. *9 occasion, according at least one to appeal pursuant direct to sec- This is a testimony, Davis urinated towards witness’ 16-ll-103(7)(a), 8A of a tion C.R.S. “[cjome on, Virgi- May the home and said imposed death sentence on the defendant (v. 26, nia, baby. I’m here. Come to me.” following con- Gary Lee Davis his trial and 470) p. murder, charges first-degree victions on murder, felony conspiracy According testimony mur- the of the defen- to commit to dant, relationship wife degree, second-degree kid- his marital with his der the first trial, opin- Becky by was the Rebecca Fincham. In this 1. At the time Davis name of ion, Gary Becky apparently went to Fincham as Davis. divorced from Davis and we refer stopped briefly iced unsatisfactory, Becky Davis to drink Becky sexually been had 19) MacLennan, (v. 15, p. relationship Gary sexual Their tea Sue while Davis with improve thereafter, after Davis took the stayed Shortly to their failed the car. couple began job, and the rent- plan kidnap ranch hand apparent to Sue MacLennan left, videotapes cruising and ing pornographic frustrated, having been the Davises looking countryside pretty for “a the about (v. 26, 418) p. (v. 15, 28) The girl.” couple sometimes p. p.m., 6:20 and 7:00 At some time between looking Morgan for Fort drove around nearby May resi- the Davises drove to considered, point in the at one women and Earlier, had Becky called dence. Davis words, up them “picking own Virginia May just as she had called Sue country taking them out and ... and Becky May that MacLennan. Davis told (v. 15, 30) basis, p. raping them.” On this they give had some children’s clothes to argued to the prosecution promised her later, to deliver the clothes and wife, prior to crimi- and his defendant (v. 15, 32) p. As en- the Davises issue, determined nal act here had to driveway May leading tered rape kidnap a local woman when the and home, May Virginia came from the house itself, (v. 26, presented pp. opportunity them, accompanied by to her four- greet 578-80) got year-old daughter Becky Krista. Davis 18, 1986, July Tammy Beauprez, On who Virginia out the car and walked with Wiggins, miles on a farm ten south lived May Mays’ the side of the tool around Colorado, visited a man and woman was The then the car shed. defendant drove Kan- driving green four-door sedan with shed, got down to out of the vehicle plates. pulled sas license After car and, walking Becky as Davis was out Beauprez’s driveway, into woman shed, by Virginia May, followed Byers to the car asked directions punched inMay defendant the face and inquired Beauprez whether her husband (v. 15, 36-37) pp. forced her into car. 450) (v. 26, p. point, At one as was home. Meanwhile, Becky go Krista to Davis told Beauprez stood next the Kansas automo- inside; Davises, May then the as their bile, the man in car maneuvered him- high captive, away speed. rate of drove However, position into behind her. self drove, Becky While Davis the defendant Beauprez’s appeared, when husband Virginia May the back seat of held down car man returned and soon there- car, sexually clothing, her removed (v. couple 26, p. 456) departed, after the assaulted her. Beauprez couple Becky identified Gary May Davis. The Davises took a secluded area nearby rope tied where following the late afternoon and, leading her neck her around Monday, July Becky Davis called knife, rope pro- threatening her with a MacLennan, Virginia May’s Sue sister-in- sexually assault her. ceeded Subse- law, and asked whether her husband was perform he quently, May forced oral sex (v. 26, 412) p. home. When MacLennan on wife. After assault com- his not, Becky that he was Davis answered pleted, May the defendant struck drop off offered to come some used rifle; head with the butt of the blow of use to MacLen- might clothes which May’s skull and sufficient fracture their nan’s children. Davises left (v. 26, 496-97). hemorrhaging, pp. to cause clothes, home without children’s blow, however, apparently did not Gary Davis admitted to existence of May to be rendered contrived, cause unconscious. pos- they been but were in rifle, (v. May, according the defendant When shot pp. .22 session of a caliber expert testimony, gunpowder residue 36-37) they pulled into the MacLen- When May’s they hands indicated that were driveway, they presence nans’ noted *10 a the defendant in defen- hand, prompted Becky extended toward ranch male (v. 25, p. 390) The gesture, sive defen- to to MacLennan that “I Davis state head, May home.” dant shot several times thought your husband wasn’t despite knowledge her her offer pleas May’s disappearance. They her for life and released, (v. $1,000 if pay to him she were May claimed that was at her when home 73) p. questioned by his wife they Becky When left go fishing. her to Davis Virginia dead, Becky May whether was the sympathy family volunteered her Virginia his emptied rifle into expressed hope Virginia May and that found, May, including shots into her left breast (v. 24, 140-41) pp. would On (v. 15, pubic region, p. 37) and The defen- basis of the children’s statement as May’s dant and his wife then covered suspicious as the well behavior corpse hay, with returned a bale to Davises, morning Becky Gary arrested, pick up their house to their beer cooler (v. 25, 219) p. Davis were because “it a few more in it.” had beers July Gary Davis, through On (v. 15, 38) Gary Davis). p. (testimony of counsel, court-appointed his reached an Meanwhile, Virginia May’s husband agreement County prosecu- with Adams Gary, attending marketing who had been (v. 11, 9) repre- p. Apparently, tors. Davis strategy meeting at the Scott MaeLennan sented his counsel from the Public De- ranch, p.m. returned home at about 8 He Virginia May might fender’s office that became when he his alive, alarmed found two (v. 34) p. still be Concerned that frightened small alone children and May might be alive and need of medical signs noticed that his had left the wife assistance, defense counsel contacted the by home When abruptly. informed his chil- gen- County Attorney. Adams District dren that was not his wife there because terms, prosecutors agreed to eral allow her,” "Becky Gary attempted May took plead guilty Davis and to not seek the in-laws, locate his First he wife. called exchange death information later, assistance, began with their he (v. 1, Virginia May. p. the location (v. 26, 46-48) pp. Suspi- search for her. 192) conditioned, agreement The how- Davises, immediately cion focused on the ever, on the truthfulness especially Sue told of her after MaeLennan suggestion possibility that there was a Eventually, earlier encounter with them. May Virginia May’s body could be alive. May’s County called relatives the Adams later was found at location described Department, deputy Sheriff’s and a arrived the defendant. p.m. taking on the scene at After about prosecutor The allowed district court May’s statements and con- from relatives penalty, ruling to seek the death ducting survey an initial of the Davis resi- plea agreement defendant had violated dence, patrol deputy continued relating truthfully the circumstanc- lights area when of a car in he noted the prosecutor. es the offense vehicle, driving the distance. After to that beyond court found reasonable doubt over, and, deputy pulled following May at the the defendant knew was dead its questioning occupants, identified plea agreement he into the time entered deputy ques- them as the Davises. The (v. 11, p. 133) attorney, district May disap- tioned the Davises about the plea guilty.2 The defendant entered of not they pearance, and was told that knew Following involving extended selection whereabouts, (v. 26, nothing pp. of her members, select- of 105 a venire 90-91) deputy Davises to allowed the guilt phase went and the trial of ed home, they leave and then returned where objections over the defendant’s forward night for the rest of into next he waive a trial and to wished to morning, under they were the observation require judge alone to case. hear the May’s Early of several of relatives. convicted morning, next several of the relatives The defendant was court, Davises, pursu- spoke charges, all of the with the who denied agreement, challenge the Public Defender’s office 2. The defendant does not correct- releasing for the defendant and the court's decision withdrew as counsel ness of the trial represent prosecution promise appointed private its to seek the counsel from dispute As a result of the over him. sentence. *11 16-11-103, constitution, inflic (1986), which forbids the state 8A C.R.S. ant to section punishments,” of sentencing phase the the bi- of “cruel and unusual conducted tion jury. pro re- imposition trial the After the furcated before the of death prosecution from re- ceiving majority evidence the court has not of this hibited. statutory garding aggrava- whether, the despite existence question addressed the hearing the defendant’s evidence tors and constitutionality punishment capital the allocution, in the re- and statement under fed certain circumstances the under finding its the existence be- turned verdict constitution, constitution for eral our state aggravating yond doubt six a reasonable However, punishment. in such bids factors, prosecution proven had that Drake, (Colo.1988), three v. P.2d 1237 beyond a doubt that there were reasonable justices of this court indicated that outweigh factors to mitigating insufficient statute, sentencing Colorado death factors, aggravating and that death existed, then was constitutional. Justices beyond appropriate penalty a rea- was the specifi in their dissents Rovira Vollack then sentenced sonable doubt. court cally rejected considered and the defen gas in defendant to die chamber. argument punishment capital dant’s sentence, however, The execution of that In forbidden the state constitution. was stayed pending appeal. this Tenneson, (Colo. People v. P.2d challenge The defendant does not 1990), directly addressing the although not but, guilt phase trial on numerous of his punishment question capital under urges grounds, that his sentence be death constitution, this state court reviewed imprison- life and a sentence of reversed present statute under the standards devel First, imposed. of- ment the defendant Supreme oped by the United States Court per se challenges fers several broad Gregg Using the in and more recent cases. capital punishment. constitutionality jurisprudence as capital punishment federal Second, challenges con- the defendant interpreted aspects guide, several our we stitutionality aspects of the Colo- of several Ten See sentencing death scheme. our Third, sentencing death statute. rado neson, (court 788 P.2d at 794 holds that challenges application of our reliability in need for light constitutional case, sentencing particular scheme this sentencing, section 16—11— statutory ag- arguing several 103(2)(a)(II), (1986), 8A C.R.S. must be con gravators upon prosecution relied require prosecutor prove strued improperly invalid were mitigating beyond a reasonable doubt jury respecting as- instructed the several outweigh aggravating do not factors Fourth, pects of our scheme. factors). the Tenneson decision Implicit argues prosecution’s the defendant inde assumption that there exists no improper. closing remarks were Addition- pendent basis under the state constitutional ally, the defendant makes a number of provision forbidding pun cruel unusual objections procedures miscellaneous per se chal to base a ishment case. will consider followed We lenge capital punishment. objections in turn. each of defendant's Further, other contexts we have not adopted analysis of our constitutional II. provision forbidding pun cruel unusual Challenge Per Se Constitutional which differs from followed ishment A. Punishment Under Cruel Unusual Supreme by the United States Court State Constitution Peo Eighth respect to the Amendment. Gutierrez, (Colo. per ple 622 P.2d The defendant concedes that 1981), argu punishment re se challenge capital rejected the that, though Habit jected ment even Colorado’s United States Court Act, Gregg Georgia, sections 16-13-101 to ual Criminal -103, (1986 urges Supp.), did but us to 8A C.R.S. & pro- II, Eighth Amendment’s not violate the under Article Section 20 of find that *12 scription punishment, of cruel and unusual contemporary with the standards of decen- II, “great- cy, ignore Colo. Const. Art. Sec. offered through- cannot the fact that protection” state, er under its cruel and history unusual out the capital punish- of this Thus, punishment provision. prece- ment has been penalty utilized as the for dents of this court indicate our disinclina- Early certain crimes. decisions of this accept argument tion to upheld for imposition of the death invalidating capital punishment in penalty. all cases People, See v. Smith Colo. 121 (1869) under the Colorado murder; Constitution. More- (affirming conviction for over, importantly, and more per- short, we are sentence mandatory). of death In suaded that the United Supreme imposition States penalty of the death has a in Gregg properly Court long history concluded that acceptance in Colorado. capital punishment every Drake, 1262, (Rovira, J., instance does 748 P.2d at n. 4 punish- not constitute cruel and unusual concurring part dissenting part). ment. arguments question the defendant Whenever the presented was nearly argu- offers here are identical to the people directly through an initiative referendum, ments in Gregg rejected by offered indirectly through their Court. representatives, elected people opted support to reaffirm their for the im- First, argues capital the defendant position capital punishment in certain punishment is unconstitutional because it is cases.3 contemporary offensive to Colorado’s stan- of decency. determining dards In example, the na- For on November standards, contemporary ture of those presented question voters were with the urges “[sjhall that we capital punishment “consider the mo- be abolished?” rality espouses our society By nearly margin follows.” a 2-1 the voters favored He assures us that “this retaining Court need not be penalty. Following death merely concerned that it is substituting its Supreme decision of the United States personal morality sense of legislative 238, Georgia, Court Furman v. 408 U.S. judgment popular 2726, (1972), sentiment.” 33 L.Ed.2d 346 Defen- However, dant’s he does again give voters were asked opin- their Brief explain how we are to determine the capital punishment nature ion on whether ap- was contemporary decency propriate.4 standards of By large margin, ap- voters regard legislative judgment without proved capital punish- continued use of popular sentiment but also avoid substitut- legislature's quick response ment. The personal morality Furman, our sense of adopting penalty for that a death stat- majority people. ute, People invalidated this court in Court, v. District 196 Colo. 586 P.2d recognized power We have because the statute did not suffi- proper punishment determine the for viola- ciently present allow the defendant to miti- legislative tions of statutes judi- and not gating required by circumstances as Summit, People cial. 183 Colo. United States Court’s decision in (1974). P.2d 850 Whether we individuals Ohio, Lockett v. judges who are would have voted for the (1978). penalty legislators as voters or is not considering In question legislature relevant. amended the capital punishment whether is inconsistent 1974 statute to address the concerns raised penalty proposition 3. Colorado has had the death since 4. The November exception four-year period with the of a phrased as follows: "Shall the death between 1897 and 1901 when it was abolished imposed upon persons convicted of class 1 felo- following Iynchings. and then restored three mitigating nies where certain circumstances are Council, Legislative Analysis Colorado An present aggravating and certain circum- Proposals, Ballot Research Publication No. present?" stances are 110. at 32. turn, prosecutor, who determines This fre- District Court.5 *13 sentence, to against whom seek a death desirability quent reaffirmance of the of jury, who to re- which determines is cer- capital punishment penalty as the death, gover- ceive a sentence of completely the defen- tain crimes answers nor, clemency who determines whether of- objection punishment capital dant’s that might Supreme appropriate. The Court be of de- contemporary standards fends argument rejected very in stat- Gregg noted cency of Colorado citizens. As ing: Rovira in the Drake case: Justice discretionary of The existence these Colorado, directly and The citizens of is issues stages not determinative representatives, through their elected stages these an before us. At each of support repeatedly their have declared justice system in criminal actor They expressed penalty. the death may a remove a makes decision which community. Since con- the values of candi- defendant from consideration as a community are temporary values Furman, penalty. for the in date death test, accepted must be as the their view contrast, im- decision to dealt by which to measure a claim standard pose specific on a death sentence penalty the death is offensive to that individual who had been convicted contemporary decency in standards in capital Nothing any of our offense. Colorado. suggests that to af- cases the decision (Rovira, J., Drake, 748 P.2d at 1263 concur- mercy vio- ford individual defendant ring part dissenting part). lates the Constitution. Furman held unwilling defen- We are to follow the that, only in order to minimize the risk suggestion reject dant’s this court imposed that the death would be peo- legislature and of the

judgment capriciously group of of- selected punishment: ple propriety capital on the fenders, impose it had to decision to society legislatures, a democratic not “[I]n sen- guided by be standards so that the courts, respond are constituted tencing authority par- on the would focus consequently will and the moral values of ticularized of the crime circumstances 175, people.” Gregg, 428 U.S. at 96 defendant. 2926, Furman, quoting U.S. at S.Ct. 408 199, 428 96 S.Ct. at 2937. Gregg, U.S. 383, C.J., (Burger, 92 S.Ct. at 2800 dissent- McCleskey Kemp, v. 481 See also ing). reject per We the defendant’s se 307, 1756, 1774, 95 L.Ed.2d 262 challenge capital punishment.6 (1987) (Court holding Gregg reaffirms allowing stage each discretion at Challenge: B. Per Se Constitutional Sec- punishment impose capital the decision 16-11-103 tion constitutional). persuasive We find analysis in Gregg, As the defendant here Court and hold argues capital prosecu- also sen discretion afforded to the Colorado tor, jury, governor our tencing scheme violates constitutional under guarantees process of due as well as the statutes and under our constitution does pun 20 prohibition against cruel and unusual violate either Section 25 Section II by allowing in of Article of our constitution. ishment excessive discretion 16-11-103, provision governing did 5. Section tence on basis instructions cases, sentencing capital again clearly unanimity amended indicate the need for in im- Drake, and in sentence); 1989. posing People death v. 748 (Colo.1988) (court P.2d death sen- 1237 reverses adoption in 1979 of the death sen Since tence on basis that instructions to did not tencing following statute this court's invalida properly jury’s inform it that decision would prior tion of death scheme Peo imposed). determine whether death would Court, ple 196 P.2d v. District Colo. 31 We sentence note all cases which death (1978), only has this court considered three given subject are direct review automatic cases, one, including this in which a death sen 11—103(7)(a), in this court. C.R.S. § 8A Durre, imposed. 16— See tence (1986). (Colo. 1984) (court death P.2d 165 reverses sen- argues that our implicate defendant also execution as to eighth penalty is amendment right. unconstitutional because process violates due in that it is not the Gray, Accord, 710 F.2d at 1061. Calhoun fulfilling least drastic means of the state’s State, Md. 468 A.2d 45 However, may interest. not strike denied, cert. particular penalty, down “because we (1984); State, Billiot v. adequate less penalties deem severe (Miss.1984), denied, So.2d cert. *14 Gregg, serve the of penology.” ends 428 1230, 1232, 105 84 U.S. S.Ct. L.Ed.2d 369 182-83, 2929, at U.S. 96 at quoting S.Ct. (1985). Also, States United Furman, 451, S.Ct. 408 U.S. at 92 at 2835 century rejected Court the nineteenth (Powell, J., Further, dissenting). retribu Eighth challenges Amendment to a number objective itself is tion not a forbidden of methods including of of execution elec 183, penology. at Gregg, 428 U.S. 96 S.Ct. chair, Kemmler, 436, tric In re 136 U.S. 10 respect at 2929. to this penological With 930, (1890), 34 S.Ct. L.Ed. 519 and the may purpose, legislature well have con firing squad, Utah, Wilkerson 99 U.S. cluded that it could not be achieved 130, (1879). 25 L.Ed. The Supreme 345 through stringent part, less means. “In Court has shown no inclination to reexam punishment expression capital is an of soci this area ine of the law. We see no basis ety’s outrage moral particularly at offen finding by gas execution lethal is sive conduct.” Id. distinguishable other, permissi from those forms of ble execution. Thus we find that argues The defendant next the defendant’s is without contention merit. gas of lethal of use as a method execution argues defendant also that our constitutes cruel and unusual Colorado is death scheme unconstitutional However, punishment. the defendant did precludes because it this court from con present argument this below where he ducting a proportionality review. While ac have might developed evidentiary an basis knowledging that the United States Su Thus, claim. left per for this we are with a Harris, preme Court in Pulley v. 465 U.S. challenge practice using of se lethal 37, 871, (1984), 79 L.Ed.2d held gas person. to execute a In Gray v. Lu by that such review is not mandated Cir.), cas, (5th denied, 710 F.2d 1048 cert. constitution, urges federal the defendant 1886, 461 U.S. “proportionality” we hold that re (1983), rejected appeals court of compelled by view is our state constitu argument Mississippi’s process due and cruel and unusual tion’s practice carrying of death out sentences decline to punishment clauses. We do so. through gas cyanide use of constituted punishment. cruel unusual The court important type is It to define the that: noted proportionality review which execution, by required by Traditional deaths such as is constitution. As urges our always Harris, hanging, by “propor- involved have Court in observed possibility pain tionality” traditionally for the to “an and terror con- referred ab- person. appropriateness Although contemporary victed evaluation of the stract crime,” may Harris, particular of civilized conduct indeed for a notions a sentence 42-43, degree some of what at S.Ct. at cause reassessment U.S. 875. To length review, acceptable, per- type proportionality is we are not this conduct present jurispru- gravity suaded that under the look “to the of the offense courts showing severity penalty, dential standards the made to sen- crimes, justifies imposed this intermediate for other and to tences [the defendant] that, appellate holding sentencing practices jurisdic- as a in other matter fact, Harris, law at pain and terror result- ...” S.Ct. tions. gas engaged by cyanide previously from death 875. We so at review, degree type proportionality different or nature from that see Gu- tierrez, resulting and to an extent from other modes of 622 P.2d traditional engage pur- re- in such review S.Ct. 95 L.Ed.2d required are 16-ll-103(7)(a) (b), jected protection challenge equal a similar 8A suant to section below, (See discussion, (1986). Georgia’s at scheme C.R.S. in- 212-213.) applied. McCleskey The defendant in showing, among evidence other troduced type proportionality review things, Georgia person who mur- required argues is the defendant more dered white was 4.3 times victim constitution, state and which the Court likely than a to receive a death sentence feder- required by held Harris charged killing person a black victim. constitution, inquires al into whether the McCleskey, 481 punishment imposed “disproportionate to rejected 1764. The Court the defendant’s imposed others convict- punishment argument that were suffi- these statistics Harris, crime.” 465 U.S. at ed of same compel inference that the sen- cient to type propor- In this 104 S.Ct. at 876. tencing purposeful rested on discrimina- review, according tionality the defen- *15 McCleskey, tion. 481 U.S. at dant, reviewing considers similar the court at 1769. Here the defendant does not have state, not only those throughout cases any support similar to that statistical imposed is in death sentence but which the present in are McCleskey and we aware which sentence of life those in also reject data. Thus we his claim. no such imposed. is imprisonment argues sec The defendant also acknowledges, this As the defendant process the due tion 16-11-103 violates equipped is not to conduct this well of the and federal constitu clauses state Unlike “proportionality” sort of review. statutory miti tions. He claims that the in is con- other states which such review gating section circumstances established ducted, has here no mechanism been estab- 11—103(5)(b)—(e) impermissibly are 16— collecting relevant data from lished for 16-11-103(5) vague. states in rele Section as to cases in which the across state part: vant sought or could have death sentence was (5) section, miti- purposes For sought, the factual circumstances been and following gating shall factors be cases, surrounding so that this court those factors: meaningful review of could conduct a particular case whether the sentence in a is

proportional compared with all sim- when (b) capacity ap- [The defendant’s] of this ilar cases in Colorado.7 Because preciate wrongfulness of his conduct or review, the inability to such a de- conduct require- to conform his conduct to argues his death fendant we must reverse significantly impaired, of law ments disagree. do sentence. We We not believe impaired so but not as to constitute legislature’s provide failure to prosecution; defense to such review violates this state’s constitu- (c) He was and under unusual substan- tion. duress, although tial not such duress as prosecution; or to constitute a defense to claims,

The also without evidence, (d) penal principal He was offering death offense another, imposed ty on the which was committed disproportionately but minor, blacks, poor, unpop participation relatively al- and on members of not minor groups. though The United States so as to constitute ular prosecution; McCleskey Kemp, in defense Court 772A, (1980), Maryland Georgia discussing requir- example, provides Rule 7. for the collec- For capital felony Maryland Court of in "all cases” the submission tion throughout records report Appeals every period in case state over a of time. See "extensive sought, penalty is whether or 17-10-37 discussed in where the death § GA.CODEANN. (White, imposed,” provides Gregg, "detailed in- S.Ct. at not it is which defendant, JJ., concurring concerning Rehnquist, Burger, of- CJ. formation fense, victim, State, judgment). also Md. circumstances See Tichnell 695, 715, 722-26, trial.” 415 A.2d 852-55 (e) reasonably by persons He could not have fore- English familiar with the lan- seen his conduct in the course guage. words can understood of the offense for he commission light duty fact finder to cause, was convicted would or would cre- consider whether the defendant’s con- grave causing, ate risk of death to meaning. duct comes within their person;.... another Drake, (Rovira, J., 748 P.2d at 1267 concur- asserts The defendant that section 16—11— ring in part dissenting part). above, 103(5), quoted vague that it so mitigators four statutory which Justice Ro- requirements fails to meet minimal Drake were numbered vira considered certainty clarity required due identically worded the four miti- process argues clause. He miti- that these gators challenged by now the defendant.8 gators give fail the defendant and the agree mitigators We are sufficient- jury adequate notice of “what conduct will ly precise guide determining subject him to or him exclude from penalty ought whether the death to be im- at penalty.” Defendant’s Brief posed. Thus, reject the defendant’s reject We argument. argument. Drake, the defendant same made the argument urged Al- now to this court. III. though majority, light decision its Aggravating Factors sentence, reversing defendant’s death *16 challenges The by defendant the use issue, unnecessary found it to consider the in this case of certain of the rejected Justice Rovira addressed and this statutory aggravators by established sec argument: 16-11-103(6). Specifically, tion he chal type of in The conduct referred sub- lenges aggravators by established section 5(b) (e), through capacity ap- sections (d), (e), 16-ll-103(6)(a), (g), (k).9 (j) and conduct, preciate wrongfulness du- Further, argues ress, any the defendant that if participation creating minor a death, single aggravator grave statutory risk of used in this are set out in words court, easily by that are common and case this understood is invalidated then we note, however, law, sentencing 8. We that under law States or United or for a crime com- 16-11-103, Drake, scheme in against relevant section 8A mitted another state or the United (1978 Supp.), & was 1, 2, C.R.S. 1983 the court for- constitute a States which would class or impose bidden to a sentence of death on the law; felony by as defined Colorado or sentencing hearing if the defendant resulted in any finding the time of the offense (d) intentionally per- The defendant killed a (5)(a) (e) through factors listed subsections being kidnapped hostage by or held as a son Drake, existed. See 748 P.2d at 5. That 1252 n. him; anyone by him or associated with or now has been revised so section delete (e) party The defendant has been a to an statutory language mandating a sentence of life agreement person kill another in further- any imprisonment mitigators if subsec- person intentionally ance of which has been (5)(a) (e) through tions are found to exist. Ch. killed; or 16-11-103, § Sec. 1984 Colo.Sess.Laws ap- Under the 493-94. scheme case, plicable in this if the exist- finds the (g) The defendant committed a class or mitigators statutory or ence of one more of the and, felony in the course of or in further- (5)(a) (e), may through listed in subsections therefrom, flight ance of such or immediate provided a sentence that it still return of death intentionally person he caused death of a outweigh mitigators concludes do not participants; other one of the or than appropri- aggravators and that death is the beyond doubt. ate reasonable (j) The defendant committed the offense in l-103(2)(a). 16-1 § heinous, cruel, depraved especially an or manner; 16-11-103(6), (1986), provid- or 8A 9. Section C.R.S. (k) felony part: was committed for ed in relevant class purpose avoiding preventing or section, a law- purposes aggravating of this For prosecution effecting ful arrest or or following shall be the factors factors: custody. escape (a) by This factor shall felony from in- The class 1 was committed killing person imprisonment clude of a witness to a under sentence of for a the intentional 2,1, felony or class as defined Colorado criminal offense. death sen- found. 486 U.S. at 108 S.Ct. at set the defendant’s

must aside to the district Thus, language imper- tence and return this case of such was use might be sen- court so that defendant missible. However, imprisonment. to life tenced language find that section We conclude, below, the reasons discussed providing 11—103(6)(j), aggrava- that an 16— a statutory aggra- the invalidation tor exists if the offense was committed passing vator considered heinous, especially depraved “an cruel or require does not an automatic re- sentence from lan- indistinguishable manner” provided sentence versal of aggravator guage used Oklahoma concludes, beyond a court reasonable this con- Cartwright, and thus we considered in doubt, aggra- the consideration of the improperly al- the trial clude harmless error. We vator statutory lowed consider aggravators examine which the now objects. aggravator. Heinous, Depraved Cruel or A. prosecutor argues and we may agree that these this court construe Maynard, Cartwright v. In statutory narrowing terms fashion (10th Cir.1987), aff'd, F.2d 1477 486 U.S. guidance provide constitutionally sufficient (1988), 100 L.Ed.2d 372 Florida, appeals jury. to a the court of held that Oklahoma’s Proffitt heinous, atrocious, ag- 242, “especially cruel” gravator improper “[tjhere is because upheld aggravator Court Florida’s words, alone, nothing standing in these few heinous, atro “especially the crime was implies inherent restraint on the cruel,” light of the Florida Su cious arbitrary capricious infliction aggra- preme Court’s of that construction sentence,” Cartwright, 822 F.2d at are only vator to include crimes which 1489, quoting Georgia, Godfrey *17 or pitiless” “conscienceless and “unneces 428, 1759, 1765, 420, 100 S.Ct. 64 L.Ed.2d Proffitt, to the sarily torturous victim.” (1980). The 398 court found use this 2968, quoting 255, 428 96 at U.S. S.Ct. aggravator despite unconstitutional Dixon, 1, (Fla.1973). State v. 9 283 So.2d had further defined fact Oklahoma heinous, “especially cruel Thus terms in May Supreme those terms.10 The Court may sufficiently guide the depraved” or 356, 108 Cartwright, nard v. S.Ct. U.S. jury narrowly if limited in their more 1853, (1988), affirmed the L.Ed.2d 372 scope. Tenth Circuit decision. The Court noted decision that the case controlled its We the construction believe Georgia Godfrey, which reversed heinous, given “especially the terms atro upon aggravator death sentence based cious or cruel” the Florida court outrageously or wan that the offense “was Dixon approved by Court vile, or inhuman in that tonly horrible type appropriately describes the Proffitt torture, mind, depravity of or an involved legislature, adopting crimes which our battery to the victim.” Cart aggravated heinous, aggravator “especially cruel 362, 1858, 108 S.Ct. at wright, 486 U.S. at depraved,” or thought worthy of considera quoting Godfrey, 446 U.S. at 100 S.Ct. tion for the death sanction. We hold language in the Oklahoma at 1762. 11—103(6)(j), under section as it stood statute, allowing imposition 16— Virginia the time the defendant murdered jury if found that death prosecutor May, prove could the exist heinous, “especially atrocious or crime was aggravator showing ence of this cruel,” guidance jury gave no more Georgia aggrava defendant committed the crime in language in the than Godfrey, pitiless” the Court “conscienceless or manner which disapproved tor "extremely “outrageously Cartwright "heinous” wicked and vile.” Oklahoma defined shockingly Maynard, evil” and "atrocious” as 822 F.2d at 1489. or wicked was “unnecessarily torturous to the vic- (1983), S.Ct. 77 L.Ed.2d 235 the Court tim.” though held that even improp- had erly aggravator considered as an whether People suggest by appro the defendant had a history “substantial priately narrowing the definition of these convictions,” serious assaultive the Court terms, court can “cure” their improper required was not to reverse the defendant’s application in this case. To the extent the opinion, sentence.12 In its imply that an the Court appropriately narrow carefully explained why construction these aggravator terms automati cally cures a trial court’s error in submit invalid: ting an unconstitutionally vague aggrava It is not invalid because it authorizes a jury, tor to disagree. The construc jury to draw adverse inferences from tion of the adopt today terms we was not conduct constitutionally that is protected. given jury, and thus we cannot auto Georgia not, has for example, sought matically that, conclude in the absence of characterize the display flag, of a red cf. instructions, such properly applied Stromberg California, [283 the law. Maryland, See Mills v. (1931)], 75 L.Ed. 1117 367, 369, 100 L.Ed.2d expression unpopular views, political (1988) (although Maryland Court of ef. Chicago, Terminiello v. 1U.S. Appeals may have arrived at a construction (1949), S.Ct. 93 L.Ed. [69 1131] of its sentencing preserves statute which request by jury, for trial cf. United its constitutionality, Court had no reason to Jackson, States v. 390 U.S. 570 S.Ct. [88 believe arrived at the same construc (1968), aggra L.Ed.2d anas 138] tion, reversed); thus death sentence God vating Georgia circumstance. Nor has

frey 420, 436-37, v. Georgia, 446 U.S. attached the “aggravating” label 1759, 1768-69, (1980) S.Ct. factors that are constitutionally imper- (Marshall, J., (it concurring) enough is not totally missible or irrelevant to the sen- reviewing apply narrowing con tencing process, such as for example the ambiguous struction of statutory language; race, religion, political affiliation of must be proper instructed on the defendant, statute). narrow cf. construction of the Herndon v. Lowry, 301 U.S. 242 81 L.Ed. [57 1066] Although we find that the trial court actually or to conduct that should erred in allowing to consider the penalty, militate in favor of a lesser such *18 heinous, aggravator “especially cruel or de- perhaps the defendant’s mental ill- praved,” providing limiting without a con- Florida, ness. Cf. Miller v. 373 So.2d terms, struction to those this does not end 882, (Fla.1979). 885-886 If aggravat- inquiry. appeal our The invalidation on of ing circumstance at issue in this case had statutory aggravator necessarily a does not require these, been invalid for the reversal of a death sentence. reasons such as 862, In Stephens, process Zant v. 462 U.S. 103 due require of law would (c)"Heinous” legislature using 11. We note that in particularly 1989 amended means a section 16-11-103 to define the terms here at shocking killing, or brutal method of or a 16-11-103(6.5), (1989 issue. Section 8A C.R.S. killing physi- in which the victim is unable to Supp.) defines these terms as follows: cally physical defend himself because of a or (a) "Cruel” means intentional infliction of disability mental or because he is too old or torture, physical psychological or and in- young. too pitiless pain cludes the ing infliction of or suffer- We need not determine here whether the defi- to, enjoy- with utter indifference or the adopted legislature, nitions not in effect of, suffering ment of others. murder, May’s sufficiently at the time of narrow (b) "Depraved" means senseless or committed statutory these terms. meaning, purpose without or or that the mur- greed, envy, product der re- was not Georgia Supreme 12. The Court in Arnold v. venge, another of those emotions ordinari- or State, 534, 539-42, 386, 236 Ga. 224 S.E.2d 391- murder, ly pur- and served no associated (1976), aggravator 92 held this to be unconstitu- pose beyond pleasure for the tionally vague. killing.

178 impose decision death be set noted this difference reserved jury’s decision to ag- question of an invalid

aside. on the whether circumstance, under a statute gravating 885, Zant, 103 at 2747. 462 at S.Ct. U.S. weighed against aggravators are where to note that: Court went on The a mitigators, require a reversal of would might jury which the [A]ny evidence on Zant, at 103 death sentence. U.S. case find re- have relied at 2749. S.Ct. previously spondent had been convicted number of serious as- substantial — U.S. -, Mississippi, In v. Clemons offenses, as he he had saultive concedes (1990),the been, properly adduced at the sen- was question open left Court addressed the tencing hearing fully subject was Clemons, jury In was allowed Zant13 explanation by defendant.... This aggravator as an that the mur to consider statutory aggravating cir- case involves heinous, “especially in that case was der cumstance, State invalidated Su- Clemons, 110 at cruel.” S.Ct. atrocious or vagueness, grounds on preme Court given any jury was not instruc plausibly aspects whose terms described those re defining tion further terms. On background that were sentence, Mississippi view Clemons’ properly and whose accu- before recognized that under the Supreme Court racy unchallenged. was Maynard decision in Court’s Zant, 462 at U.S. 103 S.Ct. at Cartwright, omitted). (citations the submission to 100 L.Ed.2d Thus, concluded, only im- the Court heinous, “especially atro of the statu- pact which the erroneous use improper aggravator cious cruel” tory aggravator could have had on the aggravator was unconstitution because the “merely consequence statu- vague provide sufficient ally and did not ” tory ‘aggravating label circumstance.’ deciding guidance whether to agreed Georgia Su- The Court with the impose a sentence. State Clem “mere fact that some preme Court ons, (1988). Mississippi 535 So.2d 1354 present- aggravating circumstances however, court, declined to reverse the de ” improperly designated ‘statutory’ ed were finding "beyond rea fendant’s conviction impact on the inconsequential had “an jury’s sonable doubt ... verdict would regarding penal- the death jury’s decision been the same with or without the 888-89, Zant, ty.” heinous, ‘especially ag atrocious cruel’ Ga. quoting Stephens, Zant v. Clemons, gravating circumstance.” (1982). 297 S.E.2d at 1364. So.2d holding part was in The Court’s Zant Colorado, Mississippi inAs under the aspect particular Georgia’s based by the scheme examined Court unique sentencing scheme to that state. Clemons, weigh required Colorado, Georgia, the existence unlike *19 any mitigating against aggravating factors aggravating only is utilized to of an factor acknowledged factors. The Court that the eligible persons. the class of death narrow Mississippi scheme was different from the Zant, 870-73, at at 2739- U.S. 103 S.Ct. Georgia Zant, scheme examined but requirement jury no that the 41. There is the found that differences did dictate against circumstances aggravating balance The different result. The Court first mitigating circumstances. Id. Court heinous, decision, “especially the in Coleman v. that murder had been Prior the Clemons 13. cruel,” (10th Cir.1989), any limiting Saffle, atrocious or without con- the Tenth 869 F.2d appeals agreed, light Appeals The considered the decision struction. court of Circuit Court of overwhelming guilt, the Supreme Court in evidence of the fact the Oklahoma of State, Stouffer remaining aggravators (Okla.Crim.App.1987), cert. four were 742 P.2d 562 evidence, denied, strongly supported by the 98 L.Ed.2d and that 108 S.Ct. evidence, mitigating (1988), declining defendant's there was no that the error to reverse the allowing jury although jury had been im in tionally to consider the unconstitu- death sentence properly permitted aggravator aggravator vague as an was harmless. to consider whether, principle, quires considered the consti- if single aggravator that we find permits appellate tution an court improperly to have been submitted to the “weighing sen- uphold state” a death jury, we must reverse sentence. Under despite jury tence the consideration Clemons, when a has improperly con- improper statutory aggravator. an The aggravator determining sidered an “nothing appel- held Court that there is sentence, whether appropriate death weighing aggra- late reweighing or First, appellate court options. has three vating mitigating and circumstances that is may “reweigh” aggravators it and miti- contemporary at with odds standards of gators and determine whether ap- death is inherently or fairness that is unreliable Second, propriate. may apply “harmless likely arbitrary imposition result in whether, error” analysis considering if Clemons, sentence.” ag- had considered the invalid Recognizing at the reweighing gravator, it nonetheless would have sen- of aggravators mitigators might be tenced the defendant to death. Finally, state, inappropriate under the law of the aggravator where the considered open Court also held that “it was improper was given because it was not Mississippi Supreme Court to find that the construction, constitutionally narrow during error which occurred reviewing may apply court another form of proceeding was harmless.” Id. at 1450. analysis uphold “harmless error” acknowledged The Court the statement of finds, beyond sentence if it a reasonable Mississippi Supreme Court that: “We doubt, aggravator that had the properly opinion beyond are of likewise a reason- been narrowed the would have re- jury’s able doubt verdict would case, turned a verdict of death. In this have been the same with or without the proceed elect to approach. under the third heinous, ‘especially ag- atrocious or cruel’ gravating circumstance.” Id. (quoting aggravator We have held Clemons, 1364). State v. 535 So.2d at heinous, “especially depraved” cruel or agreed analysis Court that harmless error should have been limited to include only fashion, approached could be in this but those murders which were conscienceless under such a test found the conclusion pitiless, unnecessarily and were tortu Mississippi “very difficult to ac- above, rous to the victim. See 176-177. cept.” determined, Id. Court how- presented We believe that the evidence ever, that was an ap- there alternative here shows defendant’s murder of proach analysis to harmless error Virginia heinous, May “especially cruel might appropriate in case: the Clemons stalked, depraved.” Virginia May however, perhaps possible, It captured, and, finally, killed abused to ful Mississippi Supreme intended to Court fill the defendant’s sexual fantasies. The beyond ask whether reasonable doubt forcibly kidnapped Virginia May the result would have been the same had four-year-old her daughter, in front of especially aggravating heinous cir- sexually Krista. He assaulted her in the properly cumstance been defined Becky away car Davis drove from the instructions; perhaps on this May home. The defendant testified that he it could have basis determined that wife, May perform oral forced sex on his properly failure instruct was harmless May rope as he led about tied error. (v. 15, 37) p. around her neck. The defen Clemons, 1441. Because the May, he raped dant also testified that *20 Court could not determine whether the Mis- assault, upon completing that struck her in sissippi Supreme ap- Court had taken this (Id.) the head the rifle. butt his proach analysis, to harmless the error May The blow did not render unconscious remanded case. Court the and, despite May’s pleading an and offer of (v. 15, money exchange p. in in for her life Court’s decision 73), dispositive emptied the Clemons is of the defendant’s his rifle into by assertion that the federal constitution re- her. Her face and torso were mutilated hollow-point inally to be The defendant bul- sentenced.” the shots. Some fourteen at term “under sen- impact, argued were found trial that the lets, expand on which imprisonment” does not include including shots into her breast tence of body in her (v. 26, 493-94) parole is pp. period in which a defendant on pubic region, the and prison. humiliation, terror, following from The de- physical suffering and his release narrowly construe Virginia May urges fendant that we the defendant caused which aggravator only include statutory us the committing in this crime convince be- in is confined in that, periods which a defendant yond ju- the a reasonable doubt had interpreta- This a correctional institution. limit- properly an instruction rors received asserts, supported, by is the defendant terms, tion they would ing these nonetheless indicating princi- legislative history that a that the defendant commit- have concluded testi- pal drafter the bill heinous, especially cru- ted the crime in an aggrava- the “intention the fied that behind Thus, el, trial depraved or manner. present in if a is person tor bill is that failure to instruct the on the court’s prison felony serving in sentence and terms was harmless er- definition those be, somebody, ought he murders then ror.14 ought aggravated circum- to be Imprisonment B. Under Sentence p. quot- stance.” Brief Defendant’s County testimony Deputy of El Paso objects to The defendant also Henry H.B. Attorney District Steve on application 16—11— trial court's of section 1310,Audiotape Hearing Senate before 103(6)(a), provides statutory Committee, Judiciary 54th General As- if the crime was commit aggravator exists Session, February sembly, Second while the defendant was “under sen ted p.m. argues 2:06 The defendant that this imprisonment” for the commission tence of testimony conclusively indicates 2,1, felony. The informa of a class or legislature aggravator this intended that charged having tion the defendant with persons by limited murders committed committed the offenses this case be by parole. prison and not those released on July July 21 and 1986. The tween persuaded. We are presented at indicated that evidence trial statute, following interpreting parole was on our the defendant give first-degree primary task is to effect to the intent incarceration for sexual as Gebhardt, According legislature. testimony of de of Kern sault. (Colo.1987). in parole during the P.2d 1340 To discern such fendant’s officer sentenc tent, language court looks to the ing hearing, the defendant was scheduled this according plain ordinary parole July from on statute to its and to be released is May meaning. language ambigu If the day Virginia after was abducted Id. defendant, ous, (v. 2A, p. 15) history, legislative The trial we consider its by the enactment, prior of the law Instruction No. 14 state court told addressed, parole statutory reme “person felony problem law impris dy. Rights under sentence of Civil Comm’n v. North deemed to be still See Dist., felony orig- Washington that caused him Fire Protection onment for the Further, nothing improper holding improper per submission of there se about 14. Our "cruel,” "heinous,” "depraved” limiting aggravator to the words without Thus, narrowing beyond a even without instructions. instruction was harmless reasonable First, prosecutor proper have been for the is bolstered several factors. would doubt Zant, argument aggrava- closing "heinous, use to characterize the crime as Clemons and in of this depraved” permit improper even if were to consider cruel there tor did utilizing aggravator contrary, specific Fi- all of the evidence no such terms. evidence. On nally, indicating prove especially much of the evidence useful to crime "heinous, heinous, i.e., May depraved, defendant’s murder of cruel cruel or facts surrounding depraved” kidnapping was admissible to establish the circumstances aggravators May, statutory Virginia the other in- were admissible existence of murder "felony cluding "kidnapping" aggravator, sentencing stage properly were considered aggravator, “preventing determining and the a law- whether death was murder” *21 11—103(l)(b). aggravator. appropriate § sentence. ful arrest" the 16—

181 (Colo.1989). (a 70, 78 person parole P.2d As the defendant on who “behaves and con- out, points legislative the history here indi- himself ducts as not to incur his reincarcer- imprison- cates the that “under sentence of ation shall ... be deemed to serving be still aggravator ment” was intended cover out imposed upon him_”). the sentence persons in prison they who are at the time However, 1 felony. commit the The argues class this defendant also that the inquiry. is not the end of the urged by defen- interpretation prosecutor the legislative any dant has not shown history rejected must be because a 1988 amend indicating purpose that this was sole the of 16-ll-103(6)(a), ment to adding section the legislature adopting aggravator. the in this phrase “including period parole the of or Thus, must the leg- we determine whether probation” to the term “while under sen period islature also intended to include the imprisonment” tence of demonstrates con parole following of from release incarcera- clusively prior amendment, that to this phrase tion in the “under of im- sentence aggravator period did include the of prisonment.” parole.15 Although, as the defendant indi cates, amended, “when a statute is it is principles statutory

Additional of presumed legislature that the intended to interpretation are useful here. When the law,” statute, Lobato, legislature change the v. adopts pre we must Charnes 743 (Colo.1987), presumption sume that it acted with an P.2d this awareness of prior subject decisional law on the may matter rebutted when arguably spe more inquiry. People under rel. ex Danielson v. cific sections to a general are added sec Thornton, (Colo.1989); City 775 P.2d case, legislature tion. In such may of Green, (Colo.1987). People v. 734 P.2d 616 clarify existing intend statute. Peo Salvador, In People v. 189 Colo. Hale, ple (Colo.1982); 654 P.2d P.2d 1273 this court considered the Sands, see also Sutherland on Statutes issue of whether a defendant who has been (4th 22.30 Statutory Construction § from prison parole released on is still “un Rev.). Here, legislature’s Ed.1985 ad Attorney der sentence.” The in General “including period of dition the term of urged reject case we the defen parole” indicates it must have believed post-conviction dant’s collateral attack be period parole part of was of a completed serving cause the defendant had imprisonment. sentence of If the drafters disagreed, holding his sentence. We thought period of the 1988 amendment parole on defendant’s “release no parole separate period of from the way alters the fact that he is still under person impris is under sentence sentence; custody; that he is in technical onment, they could used the words supervision.” and that he is under Salva or “and” “as well as” the words “or Colo, dor, 539 P.2d at 1275. during.” clarifying The use of term 1975; opinion was issued Salvador “including” prior precedent as well as our adopted legislature aggravator this in holding period parole part 1984. The defendant has not shown sentence, period us to leads concluding legislature basis for that the did period parole conclusion that is in not intend that the term “under sentence” phrase cluded “while under sentence given gave should be construction imprisonment.” that term Salvador. also See legisla- (Colo.1989)(a persuaded We also are Lucero, parol 772 P.2d policy by applying provi- tive served conditionally ee is one who has been re is, custody sion to defendants who are incarcerated at from actual but leased law, they felony time class 1 contemplation legal still in cus commit a prisoner by applying provision tody constructively a also served state); 17-22.5-203(2), (1986) persons parole. parole 8A Persons on from C.R.S. § amended, 16~ll-103(6)(a) parole, pro- including period ment or on 15. As section states bation, felony...." part: felony "The for a Section in relevant class com- class (1989 16-ll-103(6)(a), imprison- Supp.). by person under sentence of 8A C.R.S. mitted

182 Judiciary Plock, 1, the Senate 2, felony 3 a stated before a class as a sentence regarding that: aggravator greater threat of criminal Committee “pose a class authorities activity to law enforcement aggravating category third [of [The] v. ordinary than citizens.” deliberation, a person if factors after is] 302, 34, 37, Anderson, 536 P.2d Colo. 189 agreement in party a furtherance is an felons, (1975). for their Incarcerated intentionally person then of which a is may feel circumstances part, in certain killing. your killed. That contract is committing crimi- they little to lose p. quoting Audio- Brief Defendant’s acts, they serving if particularly are nal Judiciary Hearings Senate tape of before by felons their lengthy sentences. Paroled 4-6,Forty-Ninth on Committee Senate Bill the law’s previous conduct have shown that Session, Assembly, Second Janu- General to dis- insufficient deterrent effect was p.m. ary 1:38 acts. engaging in criminal suade them from present- measure of deterrence The added points also state- defendant therefore, through capital punishment, Strahle, ed a Representative sponsor ments appropriately applicable classes to both is bill, explained who of the death of felons.16 as follows: aggravator party agreement an He been a has Party Agreement to an C. per- a furtherance which further —in argues that the intentionally defendant The rea- killed. son’s been improperly allowed seemed to trial court is in there is that it son that de aggravator as the one perhaps consider me this was the—was “[t]he party agreement to an has a fendant been likeli- kind of murder which there a person in furtherance of deterrence, to kill another any, if there is hood of—of intentionally person a has been passage penalty. result of of the death a 16-ll-103(6)(e), 8A C.R.S. killed.” question § of whether I think whole argued the trial (1986). The defendant penalty is a deterrent is an not the death aggravator was intended that this court unprovable unproven substantially only to “contract- apply legislature year, this bill was question. Last when Further, the defen kill circumstances.” Committee, got a Judiciary interpretation broad argues dant that the argument both sides. passioned [sic] adopted the trial aggravator of this right it to it the But when comes down Eighth Amend by the forbidden question and the question of deterrence States Constitution ment to United ques- basis are statistics on valid II, 20 of the Colorado Con Article Section so that I don’t tions that are difficult reject argu the defendant’s stitution. We of- or been believe I’ve been convinced ments. I anyone. convincing evidence fered you hope you judgment make a think statutory aggravator “under As but, there is you’re right but if imprisonment,” sentence and— penalty, in the death deterrent factor history ag- legislative of this points to the surely of a come—or in nature must argues requires this gravator, which he person people situation where narrowly “party the term court to construe —some An somebody. kill put out a contract to only include contract agreement” to to an profit, agreement, or murder for hire. murders for Defendant murders and bill, other words. sponsor Senator contends that (1981). language 102 S.Ct. 70 L.Ed.2d holding today "under a U.S. 16. Our Cir.1982), Lucas, (5th period imprisonment” Gray includes 677 F.2d 1086 sentence See also denied, with the decisions of parole is in accord rt. ce have construed similar number of courts which (1983) (court holds that Missis L.Ed.2d 815 State, provisions Peek v. in other states. See sippi's “under a sen construction the term denied, (Fla.1980), rt. So.2d 492 imprisonment” parolees ce to include tence of (1981); Straight vague). unconstitutionally denied, State, (Fla.), So.2d cert. *23 49, Briefed, p. quoting Virginia May testi- and that she inwas fact Defendant’s mony Rep. 1095, Thus, of Strahle on House Bill plain killed. under the language of Audiotape statute, Hearing aggravator House State this proved was of before Committee, Forty-Ninth General this ease. We note further that had the Affairs Session, Assembly, 31, January legislature Second desired aggravator that this be 1974, p.m. 3:40 killing limited to a contract situation or to gain, for pecuniary murders it could have However, aggrava- statutory as with the chosen to use such narrow language.17 As tor imprison- “while under sentence the numerous by statutes cited the defen- ment,” sponsor comments of here demonstrate, legislature dant had such are disputes not conclusive. No one narrowly drawn statutes available as mod- this aggravator includes contract murders. els it had wished to follow lead of those question it is whether also includes states.18 which, such murders as the one in this case although profit, for carefully was Further, persuaded we are by the Peo- planned by persons part advance two ple’s argument legislative that the policy in kidnap rape a scheme to a woman in adopting aggravator also supports ap- improve order life perpe- to sex of the plying aggravator present case. Davis, testimony Gary (v. trators. See Conspiracy to commit crime has been 66-69) pp. The sponsors’ testimony recognized as an “evil in itself.” Ianelli v. by unhelpful cited the defendant is on this States, United 420 U.S. question. (1975). Likewise, 43 L.Ed.2d conspir- acy might to commit murder above, by be viewed interpreting

As noted a statute legislature as a more blameworthy attempt we to must ascertain the intent of committing method of Gebkardt, murder thus Assembly. the General Kern v. deserving of punish- more the ultimate 746 P.2d 1340. To determine such intent legislature might ment. The look have conclud- language first of the stat- meaning ute. ed that the involvement of or Id. When of a statute is two more clear, persons unnecessary plan in a legis- to examine its take the life of another history. People Armstrong, multiplies lative the evil in the depravity (Colo.1986). requisite P.2d evidence here mind take innocent human life fully supports jury finding present not in one person, but two or party to an agreement prop- was more.19 We hold that the trial court couple erly 16-ll-103(6)(e) with his wife that would kill concluded section Further, legislature we observe that the Justice wrote 19.As Frankfurter in Callanan v. 587, 593-94, 11—103(6)(h) States, sepa- section established as a United 364 U.S. 16— (1961): aggravator felony rate class 1 5 L.Ed.2d "[t]he pecuniary gain." committed for agreement partnership criminal [Collective — presents greater potential threat crime— example, following provi- 18. For see the state public than other individual delicts. Alabama, 13A-5-40(a)(7) .§ sions: ALA.CODE Concerted action both increases the likelihood (“[m]urder (Repl.1982 Supp.1989) & done for a object successfully criminal will be pecuniary or other valuable consideration or probability attained and decreases the hire”); pursuant to a contract or for DEL.CODE depart individuals involved will from their 4209(e)(1)(h) (1987) ([t]he ANN. tit. de- § path criminality. Group association for paid paid person fendant or was another often, or purposes normally, criminal if not person agreed pay paid or had be another possible the ends makes complex attainment of more conspired pay paid or had or another those one than criminal could victim); person killing Georgia, for the accomplish. danger conspira- Nor is the 17-10-30(b)(4), (b)(6) (1982) GA.CODEANN. particular § group torial limited to the end to- of mur- C'[t]he offender committed offense ward which it has embarked. Combination another, purpose likely der himself for the for or more in crime makes commission receiving money thing monetary original purpose other of crimes unrelated to “[t)he sum, group value” offender caused or directed which the formed. In danger conspiracy generates another to commit murder or committed mur- which a is not agent employee per- der as son”). of another which is confined the substantive offense enterprise. aim the immediate Coker, present punishment. usual such as that

extends to situations Enmund, We now address the defen- at 2866. the Court in this case. if the penal- statute objection that even whether “death is a valid dant’s considered *24 circumstances, Eighth meant to cover such ty were under and Fourteenth such a precludes life, construc- the constitution for took Amendments one who neither life, tion. attempted to take nor intended take Enmund, 787, life.” at 102 S.Ct. U.S. two United States The defendant offers question, answering 3371. In this at cases, Florida, Supreme Enmund v. Court development “looked to the Court historical 3368, 782, 73 L.Ed.2d 102 S.Ct. 458 U.S. issue, judg- legislative at punishment (1982), Georgia, 433 U.S. and Coker ments, and the opinion, international sen- 53 L.Ed.2d 982 juries before tencing decisions have made that consonant with the proposition for the bringing judgment to bear on the its own Amendments Eighth and Fourteenth 788-89, Enmund, matter.” 458 U.S. at reviewing "a States Constitution United 102 S.Ct. at 3372.20 legislative judg- look at the court should determine whether ments of other states to case, however, In this the defendant can- punishment a is under a as valid death life, at- not claim that he “neither took set of facts.” particularized Defendant’s life, tempted to take nor to take intended Brief, p. 50. The defendant asserts life,” i.e., Ultimately, Enmund. thirty-seven presently authorize the states to death not sentenced the defendant be- capital punishment and that imposition of party to an cause the defendant was a imposition of the death none allows kill, he, agreement rather in but because aggravating factor penalty based on blood, brutally Virginia cold murdered party to “mere” the defendant was a May. by Thus the cases cited the defen- require, states accord- agreement. Other inapposite. are dant defendant, at the minimum a ing to the Supreme has Court offered little hire, murder, for solicita- murder contract guidance proper on the standards for exam- murder, pecuniary for or murder tion for validity statutory ining particular gain. aggravator beyond recognizing ag- an Although experience prac gravator may vague be so as to violate a devising of other states is relevant tice law, right process to due appropri capital punishment scheme which aggravator such as the cruel and heinous ately of the elector addresses desires However, Cartwright. the Tenth Cir- respecting the constitutional ate while Appeals in the Cartwright cuit Court of defendant, the factors which rights of the analysis engaged case a useful thought relevant to the deci other states evaluating the constitutional- standards for particular is of whether a murder de sion particular ity aggravator: of a serving capital punishment are not dis- aggravating An circumstance is a stan- question positive on the of the constitution legislature dard established particular adopted by ality aggravator of a guide choosing the sentencer between legislature. our We note cases imprisonment penalty. life and the death defendant, cited Enmund and Cok essence, aggravating In circumstance er, particular concern the issue of whether legislative determination that “this punished by death. In crimes could murder is different.” This difference Coker, Court concluded that justify reasonably imposition “must imposing the crime of the defen- of a more severe sentence on grossly disproportionate and ex rape was guilty to others proscribed by compared dant found punishment and was cessive Zant, murder.” Eighth Amendment cruel un- Arizona, subsequent kidnapping and a see Tison v. breakout murder, 20. But (1987) though neither defendant "took even to, (Court upholds he desired or was certain death sentence of two brothers act which death.”). prison participated who in their father's armed would cause (footnote omitted). S.Ct. at 2742 A statu- cured the constitutional defects identified torily designated aggravating circum- Georgia, Furman v. 408 U.S. 238 [92 accomplishes stance “iden- (1972). 33 L.Ed.2d 346] tifying] special indicia blameworthi- itself, opinion Gregg joint of JUS- dangerousness ness killing.” STEWART, POWELL, TICES and STE- Weisberg, Death, Deregulating PHENS concluded that the Georgia sen- (1983). Thus, Sup.Ct.Rev. “the tencing scheme met the concerns of Fur- guidance regarding given by providing man proceed- a bifurcated the crime factors about and the defen- ing, factors instruction to be con- State, orga- dant representing *25 sidered, appellate meaningful review society, particularly nized deems relevant U.S., of each death sentence. 428 at sentencing to the Gregg, decision.” 428 S.Ct., 189-195 at Satisfied [96 2932-36]. 192, U.S. at 96 (opinion S.Ct. at 2934 of procedural safeguards that these “suit- Powell, Stewart, Stevens, JJ.). ably the jury’s directed limited” dis- narrowing The aggravat- function of an cretion as to minimize “so the risk of ing circumstance demands that such wholly capricious action,” arbitrary and capable objective factor be of determina- id., 2932], at joint 189 S.Ct. at the [96 Thus, aggravating tion. circumstances opinion not did undertake to dictate must be described in terms that com- are particular the the State substantive understood, monly interpreted ap- factors that should be deemed relevant plied. truly provide guidance To to a capital sentencing In- decision. distinguish sentencer who must between deed, joint opinion the “It observed: murders, aggravating circumstance that problem seems clear the channel- [of must the direct sentencer’s attention to a ing jury bewill alleviated if discretion] particular aspect justi- killing of a that given guidance regarding the the fies penalty. the death factors about the crime and the defen- 822 Cartwright, F.2d at 1485. State, orga- dant that the representing In problems vagueness, the of of absence society, nized particularly deems rele- as in Cartwright, such or absence of Id., sentencing vant the decision.” imposition per- the of a death sentence on 192, at 96 S.Ct. at 2934. attempt who not sons themselves do to Ramos, 999-1000, 463 at 103 at U.S. S.Ct. life, take life or intend to take such as in Court). (emphasis supplied the Enmund, Supreme the Court has been re- recognized The Court in Ramos that it particular luctant consider whether of if had limited the state choice criteria aggravator appropri- chosen a state is excessively vague, criteria such were Ramos, In v. ate. U.S. California further, that death schemes (1983), 103 S.Ct. 77 L.Ed.2d 1171 the of must allow consideration the individual stated: Court characteristics the offender and his ensuring penalty In is not death Ramos, 1000-01, crime. at U.S. arbitrarily capriciously, meted out the or Finally, 3452-53. the Court noted S.Ct. principal Court’s concern has been more Florida, Gardner U.S. by which procedure with the the State (1977), imposes death than sentence may that a Court had held death sentence lays factors State substantive before imposed presen- on the of a basis death, imposing aas basis for investigation report containing infor- tence once it been has determined op- that the defendant has had no mation category defendant falls within However, portunity explain deny. persons eligible penalty. for the death limitations, stated, “[b]eyond these Court Georgia, Gregg v. 153 [96 above, (1976), noted has deferred to as Court 49 L.Ed.2d and its 859] cases, companion the State’s choice substantive factors the Court reviewed capital sentencing penalty relevant determination.” schemes five States Ramos, 1001,103 to determine whether those schemes had S.Ct. at 3453. degree kidnapping. We aggravators “simple” also second The function of reject the defendant’s contention. by the Court McCles discussed key Kemp, 481 U.S. statute, Again, interpreting this where Court 95 L.Ed.2d legisla must ascertain the intent noted: plain language ture reference to iden since Furman have decisions [O]ur here the statute. statute states constitutionally permissible range tified a aggravator applies if the defendant imposing penal of discretion kidnapped,” person kills without more. “a First, required there threshold ty. dispute does the death cannot be below guilty second-degree kid jury found him context, In this imposed. State conclude, therefore, pur napping. We establish rational criteria must statute, language of plain suant judgment the decisionmaker’s narrow de legislature intended to include both to whether circumstances grees kidnapping aggravator. particular meet case *26 agree the an “party threshold. As with to aggravator, the defendant also ment” at at McCleskey, urges narrowing that the construction he added). (emphasis by the compelled advocates is state Thus, determining in the consti federal constitutions. For reasons similar tutionality aggravator, as we have of this argument rejection to our of defendant’s it, interpreted must consider whether respecting agreement” an “party to aggravator “rational crite establishes persuaded aggravator, we are not that the in narrowing jury’s ria” for discretion proffered is con construction is considering appropriate, whether death stitutionally compelled. aggravator, The aggravator McCleskey, whether the court, by “genuine interpreted the trial special indicia of identifies blameworthi persons ly eligible the class of narrow[s] capable objective dangerousness or ness Zant, penalty.” at for the death determination, aggrava This Cartwright. Further, at 2742. we find it, tor, pre interpret sufficiently as we aggravator establishes “rational by permit objective cise to consideration criteria,” conducting narrowing this for jury. language aggravator, The process. McCleskey, 481 U.S. See party to defendant has been “[t]he legislature might 1774. The 107 S.Ct. at fur agreement person an kill another in that an well have determined abduction person inten of which a has been therance particularly by followed a murder is de killed,” tionally is clear and itself lends pen serving of consideration for ready application jurors. reasonable reasonably alty. legislature The could Further, dis for reasons stated our particularly suffering cruel the view as legislature of the intent cussion subjected, kidnapping victim adopting aggravator, this we conclude that terror, as through the criminal’s calculated upon guiding rational is based criteria him, accompany pos is forced to victim jury in its exercise of discretion. sibly to victim’s own execution. Such present in this ease circumstances were Kidnapping D. may the basis for includ properly form argues also defendant among particularly murder those this improperly trial court allowed the deserving capital punishment. provision aggravator an consider as 11—103(6)(d) challenges the The defendant also section defen “[t]he 16— person aggravator intentionally kidnapped kidnapping killed a dant submission argues He being hostage any him or reason. that under or held as a for another Powell, him.” The 716 P.2d one associated with defendant our decision (Colo.1986), aggravator only applies to trial court defined argues that this unconstitutionally in an kidnap “kidnapping” “a for ransom situation” vague During guilt phase, manner. Avoiding the E. Preventing or Lawful Arrest gave following court instruction to the objects The defendant also jury: trial improperly the jury allowed The elements of the crime of kidnapping provision consider as an aggravator the degree the second are: 11—103(6)(k)which, section in relevant 16— defendant, 1. part, states: felony “The class 1 was com purpose mitted for the avoiding pre or Colorado, 2. state of or about venting lawful prosecution arrest or or place charged, date effecting an escape custody. from This knowingly, 3. factor shall killing include intentional forcibly, otherwise, 4. or seized and car- of a witness to a criminal offense.” The person ried any place from one to anoth- argued to the trial court that er, aggravator only this applies to situations consent, 5. her without (1) during where: investigation pros or justification, 6. without lawful of a separate ecution offense which had use a rifle[.]21 previously place, taken a witness was killed Contrary to contention, the defendant’s attempt an investigation to thwart the require Powell does not reversal prosecution; (2) a law enforcement offi basis improper. instruction was cer attempting was killed while effect Powell, 18-3-302, we held that section 8 arrest. We disagree. (1985 Supp.), defining C.R.S. kidnapping People argue ag- that this unconstitutionally vague. That sec- *27 gravator is appropriate if the evidence indi provided tion “[a]ny person that who know- cates that a defendant has murdered the forcibly, ingly, or otherwise seizes and victim a contemporaneously recently of or person place carries one from to anoth- perpetrated offense and-the reason for the guilty er” kidnapping. of We noted murder was prevent to the victim from that the statute failed that indicate the becoming a By putting witness.22 fo the “knowingly” mental state of separate is a purpose murder, cus on the of the this Powell, element of the offense. 716 P.2d aggravating factor cannot said to in Nevertheless, at 1101. we excised the they clude all murder victims because are “forcibly words or from otherwise” the potential all agree witnesses. We with the statute and held the of remainder the People’s position. por- statute was from the severable excised tion, excised, and as again, was constitutional. Once we plain look the upheld We then the defendant’s language conviction the statute and conclude that second-degree for kidnapping case, the the closely on basis instruction in this that the actually given statute, instruction the language tracked of the written, jury, Further, the properly unlike statute as did not jury. submitted to the unconstitutionally allow the to find the the defendant own conceded testimo guilty finding ny May defendant without a the reason he killed was so culpable Powell, mental against state. P.2d at that she could be a 716 witness given (v. 73) 1102. The instruction p. sup case is him. Thus the this evidence indistinguishable given ports jury’s finding from the prosecu one that the properly proved thus aggra- Powell and tion had the existence this informed reject beyond We law. con- vator defendant’s reasonable doubt. While agree tention. with the that it covers defendant Zant, (an argue alleg- 21. The defendant does not 462 U.S. at 103 S.Ct. at 2742 edly improper requires instruction aggravating genuinely reversal of circumstance must nar- guilty kidnapping charge. verdict persons eligible row the class of for the death reasonably justify imposi- must 22. Of crime course antecedent must be one more tion of a severe sentence on defendant necessarily which is not inherent or incident to murder). compared guilty to others found battery, murder such as assault every otherwise punished by murder could be death. See 188 describes,

the situations he we see no basis We first observe that the defen presentation limiting aggravator object to those situa- dant did not tions, “felony aggrava chal- murder” reject and we up” lenge.23 present “doubling Nor did he tor. during argument presenta court “kidnapping” aggravator. tion Felony F. Murder Thus, plain is limited our review here argues that the The defendant also trial error. will in such We reverse conviction improperly to consid- allowed only if the error undermined the cases so aggravator by section er the defined 16- so proceeding fundamental fairness of ll-103(6)(g) which states: reliability of as to cast serious doubt on the P.2d People, the verdict. v. 743 Wilson

The committed a class defendant (Colo.1987).24 and, felony of or in fur- course flight or immediate therance of such points The defendant to a num therefrom, intentionally he caused the which, under ber state court decisions than one of the person death of a other circumstances, various have held such participants; .... overlapping aggravators impermissi State, ble. See v. Provence 337 So.2d challenge defendant does con- (Fla.1976), denied, cert. stitutionality aggravator, nor of this its (1977) (court applicability particular case. The this prosecution holds that could not offer as however, argues, defendant because aggravators both the murder occurred “felony” underlying aggravator, robbery commission and that it aggra- kidnapping, formed the basis for the gain); pecuniary was committed for Ran 16-ll-103(6)(d), vator defined section State, (Fla. dolph So.2d impermissibly the court allowed a “dou- 1984) (same); Goodman, 298 N.C. State bling up” aggravators. of the two (court (1979) S.E.2d 569 holds “doubling up” improper, in submitting trial court erred both prosecutor argues, because allowed *28 aggravator capital felony that the single to characterize factual circum- “disrupt committed to or hinder the lawful stance, kidnapping May, and murder of any governmental exercise of function constituting aggravators two as and there- laws,” aggrava the enforcement of and the “artificially by aggravating inflated” the purpose tor that it was committed “for the factors and that this created a substantial arrest”). avoiding preventing a lawful im- risk that the death would be However, capricious cases, posed arbitrary reviewing in an man- these as ner, defendant, contrary Gregg by command of we v. well others cited 2909, Georgia, concluding no 428 U.S. 96 S.Ct. have found basis for 2932, (1976). upon 49 L.Ed.2d 859 of these courts were decisions based 1455, argument, (1984); rejecting In the defendant’s we S.Ct. 79 L.Ed.2d 772 State v. Grif (Mo.1988), ied,U fin, recognize number of state courts have 756 S.W.2d 475 den cert. -, 3175, People a different See v. .S. 109 S.Ct. 104 L.Ed.2d 1036 come to conclusion. 604, Rust, 528, 573, (1989); Silva, Cal.Rptr. v. State 197 Neb. 250 N.W.2d 45 Cal.3d 247 754 P.2d — 867, 912, 313, denied, U.S. -, denied, (1988); cert. 434 U.S. S.Ct. 54 1070 cert. 109 S.Ct. 98 820, (1977). (1989); Loyd, L.Ed.2d 198 809 State 102 L.Ed.2d v. 459 498, (La.1984), denied, So.2d 504 cert. 481 U.S. 1042, 1984, (1987). reject 107 S.Ct. 95 L.Ed.2d 823 24. Thus we the defendant's contention However, “plain inap capital other courts are in accord with our that in cases error review is However, defendant, today. Thigpen, plicable." here See Evans v. 631 as noted decision (S.D.Miss.1986), F.Supp. 274 F.2d held if is of 809 239 we have the asserted error aff’d 1033, denied, dimension, (5th Cir.1987), required cert. is 483 U.S. 107 constitutional reversal 3278, (1987); S.Ct. Pickens v. unless the court concludes that the error was 756, State, beyond 212 261 Ark. 551 S.W.2d cert. harmless a reasonable doubt. Graham 505, 1985). denied, (Colo. People, 435 U.S. 55 L.Ed.2d v. 705 P.2d In this 509 State, error, instance, (1978); any, if v. So.2d 645 we conclude that the 500 Leatherwood 435 denied, (Miss.1983), U.S. cert. 465 104 not constitutional error.

189 course, are during sentencing phase the federal constitution. Of we of the bifur- not bound the decisions of the courts of cated trial. Before we address defendant’s particular interpreting their other states specific objections, necessary it is to consid- Also, the not statutes. defendant has appropriate er the standards review. to, found, any and we have pointed not First, above, reject as noted support which recognition federal cases suggestion analysis that harmless error a federal constitutional for invali basis inapplicable in capital difficulty cases. The dating aggravators the use of are trying capital against with case the ever- individually proper but in par otherwise changing legal landscape is self-evident. may overlap part ticular case or in require Unless trial errors are held to re- fact, Stephens, whole. Zant v. defendant, only they prejudice versal if 862, 103 discussed above at 177- nearly impossible proceed it will be 178, suggests overlapping aggravators do in capital trials cases. objection. not raise a constitutional scheme, statutory Under our Further, when a defendant has beyond must find existence a reason object error, alleged failed to to an this aggravator able doubt one order to only will consider the error under the proceed weighing aggravators plain Vigil People, error standard. mitigators. here was careful (1978); Colo. P.2d 1196 Crim.P. ly properly instructed Instruction 52(b). standard, Under this errors not weight assigned No. that “it is the require only at trial will raised reversal factor, and each number factors they so where undermine the fundamental found to exist that is to be considered.” proceeding fairness of the as to cast doubt Thus, doubling up aggravators reliability of the verdict. Wilson v. legally significant under the Colorado (Colo.1987).25 People, P.2d Relia Because, penalty procedure. bility certainty in this context means the statute, plain language aggra- of our both that, error, despite would have case, applied vators under facts beyond a found reasonable doubt we find no error in their submission to appropriate penalty. A death was dif Melton, jury. See Cal.3d applies the unpre- ferent standard when 764-65, 867, 897-98, Cal.Rptr. 750 P.2d is of 741, 771-72, served error constitutional dimension. denied, cert. circumstances, 329,102 (1988)(court Under those reversal is re L.Ed.2d 346 aggra- no error in submission as an quired found unless this court is convinced that presence ... vator “the of criminal activi beyond the error was harmless reason *29 by the defendant which ties involved Rodgers, doubt. 756 P.2d able attempted of use force violence” and 980, (Colo.1988). of aggravator presence any prior “the ... convictions”); Clark, felony State v. principles apply Additional when 322, 772 P.2d N.M. cert. reviewing propriety instructions — -, denied, U.S. 110 S.Ct. conducting sentencing phase. (1989)(court “doubling rejects L.Ed.2d 271 review, guided by a we are such Su argument aggravators “murder of up” in preme Boyde Court’s decisions v. Cali and “murder in the a witness” course — -, fornia, kidnapping”). (1990) and L.Ed.2d 316 California Brown, 837, 93 IV. (1987). In Boyde, L.Ed.2d 934 case Jury Instructions challenged the defendant certain in- which A. Standard Review given during structions trial, phase capital the Court re- objects also

The defendant it given to had em- number of instructions viewed the various standards Also, 52(b) "[p]lain although they brought were states that noticed 25. Crim.P. errors rights affecting may or defects substantial be attention of court.” as Evidence determining wheth- Allocution C.

ployed prior cases “restrict im- jury instructions challenged, er objects to certain of rele- jury’s consideration permissibly a given at of Instruction No. portions evidence_" Boyde, 110 S.Ct. at vant the trial. penalty phase conclusion thought important it The Court argues highlighted he Specifically, for consid- single formulation upon a settle improper. were of that instruction portions proper held that “the ering this issue 1No. stated: Instruction case is a is whether there inquiry such ap- has likelihood that the reasonable NO. 1 INSTRUCTION challenged way in a instruction plied the of constitu- prevents consideration jury, the evidence Members Boyde, 110 tionally relevant evidence.” com- phase hearing has been penalty at 1198. you S.Ct. In moment I will read pleted. apply in order you law must which such a reasonable determine whether To But your sentencing decision. reach initially exists, must focus likelihood things first, a few I want to mention Brown, challenged. specific language you are keep in mind when you need to If the 542, 107 at 840. U.S. at room. discussing this case in the mus- specific instruction fails constitutional my to decide rules of job It is what ter, as a the instructions we then review lawyers the case. While the apply law the entire whether whole determine during the may commented interpretation correct charge delivered a rules, hearing on some of these phase principles in Id. With these the law. say guided by I you to be what about which are mind, the instructions we consider all the rules them. You must follow of challenges in this case. the defendant you if explain you. I them to Even as Mitigat- Aggravating and Weighing B. understand the reasons disagree or don’t rules, you Circumstances must follow for some of single rule all the them. No describes argues that the trial The defendant Therefore, applied. must law which be by instructing ac court erred together considered the rules must be 16- language of section cordance a whole. ll-103(2)(a)(II) it could consider death pen- During course of the trial and only if it penalty for the defendant as a alty hearing you received all of the phase mitigating factor found that “[n]o you may properly consider evidence outweigh aggravating factor or factors Your decision must to decide the case. beyond a exist reasonable factors found to of law by applying made the rules acknowledges that the Defendant doubt.” present- give you I to the evidence stat closely tracks the relevant instruction ed. concludes utory language, nonetheless but unconstitutional be the instruction is duty It the facts your determine finding of an require

cause does during you have heard from the evidence factors which out *30 “aggravating factor or including any additional the entire trial The defendant weigh mitigating factors.” during penalty presented the evidence impermissibly autho the statute asserts hearing. you Then are to evaluate phase aggravat when the a death sentence rizes requirements light those in of the facts mitigating are of ing and circumstances instructions. set forth in these equal weight. during penalty phase times the At ques- to hearing lawyers objections made

However, and re- court considered by lawyers, and to an- by asked other argument now raised the tions jected the Tenneson, any by Do not draw 788 P.2d swers witnesses. in defendant from objections from such or dispositive, conclusions (Colo.1990). is Tenneson only rulings objections. These my on the the of not review here basis and we need I had legal questions to related the holding in that case. our death, should fendant the claims to determine and not influence to defendant I to you told When thinking. your the denied him court his constitutional statement, you particular consider a right sentencing body the to have consider put were told to that statement out possible mitigating all circumstances and to of mind, you may your and not consider sentencing an individualized determination. any your statement in deliberations Brief, 88, citing Hitchcock at Defendant’s you disregard. were instructed to Dugger, The unsworn statement of defen- (1987). Further, L.Ed.2d 347 defendant is not evidence. dant urges the trial improperly court deni- you Finally, should consider all grated right Because allocution. your observa- light evidence objections defendant did not offer these experience and tions trial, life. plain we consider them under error (Emphasis added.) analysis. Further, objects the defendant to that 32(b) People, As conceded Crim.P. telling part Instruction No. precedents clearly of this court

that: right has the establish that defendant proof prov- There is as to no burden sentencing before to make statement mitigating disproving or factors any present his own behalf and to informa should all of the you consider evidence In Bor mitigation punishment.27 tion in presented at the trial People, rego v. (Colo. P.2d hearing mitigating as to relates 1989), rejected prosecutor’s argu factors.26 permit ment that allocution should not be capital ted in cases. held that “a de By informing We that “the unsworn right fendant’s to allocution is even more of the is not evidence” statement defendant pronounced emphasizing facing possibility several when of a times sentence_” Thus, Id. only that it death the defen should consider “evidence” determining pointing impor- de- whether sentence the dant is correct principal Instruction No. 4 in whole: 4. The defendant was a in the of- 26. stated another, your fense which was committed but step second The deliberations is participation relatively any mitigating determine if factor or factors minor, although exist. Mitigation not so minor as to constitute any abatement or prosecution. diminution a defense punishment imposed by or law. 5. The emotional state of the defendant at Mitigating do factors are circumstances which the crime was committed. time justification constitute or excuse for cooperation 6. extent of the defendant’s which, fairness, question, but offense agencies enforcement officers or law may reducing extenuating be considered as or prosecuting office of the District At- with the degree culpability of moral or which torney. way, together other or alone with other drugs alcohol. 7. The influence circumstances, may allow such a sentence of continuing threat 8. The defendant is not a imprisonment penal- life ty- instead society. Any which bears on 9. other circumstance proof proving There no burden of mitigation. question of disproving mitigating you factors and should presented all consider of the evidence Also, 16-11-102(5), C.R.S. 27. section 8A sentencing hearing and the trial as it relates to provides: mitigating factors. receiving presentence report and After Mitigating factors are: sentence, imposing af- shall before age at the time of opportunity to make a ford the defendant an crime. present and to in his own behalf statement capacity appreciate 2. The defendant’s *31 mitigation punishment. any in information wrongfulness of his conduct or to conform given oppor- prosecution also an shall be requirements conduct to the was his law any tunity material to be heard on matter to significantly impaired, impaired but not so as imposition The court shall the of sentence. prosecution. constitute a to to defense pursuant the defendant then sentence The defendant was under and 3. unusual provisions section although of this article 18—1— duress not such as substantial duress prosecution. constitute a defense to C.R.S. Boyde opinion in is instructive. attached to a defendant’s Court’s tance we have Boyde argued in an in case. The The defendant that right capital to allocute a jury it consider jury instruction to the that could argues that the defendant because “[a]ny other circumstance which extenu- statement told the defendant’s was though it gravity of the crime even only it ates the and that must was not evidence crime,” legal for the did determining appro- not a excuse in is consider evidence sufficiently “non- sentence, jury allow the to consider improperly preclud- it priate factors, as such his back- giving full consideration to the crime-related ed from character, might provide ground ar- which The defendant defendant’s statement. less than death.” gues Supreme hold- a basis a sentence that under the Court’s Ohio, rejecting In Boyde, at v. U.S. 1197. Lockett ing in claim, held that the Court is likelihood that from “there not a reasonable juror may precluded consider- “not be jurors interpreted the trial court’s factor, any Boyde’s of a mitigating as a aspect ing, prevent consideration any of instructions or record and defendant’s character background and mitigating evidence of of the offense that the circumstances at 1198. Boyde, proffers for a sen- character.” a basis (emphasis origi- in less than death” tence reviewing challenged instructions In nal), required is therefore reversal case, specific first on the in this we focus However, disagree with the de- here. language challenged. California the trial court’s contention that fendant’s Brown, 107 S.Ct. at 839. prop- jury from precluded instructions whole, charge then review as a may We erly considering his allocution. eye it toward the context in which Boyde, 110 S.Ct. at 1199 given. See technically The trial court was (Court unlikely found it reasonable instructing jury in that allocu correct juror would fail consider evidence right to not evidence.28 The allocute tion is in mitigation, the defendant offered "right the defendant’s no more than is though not related the circumstances own before the and ask his stand crime, light presen- of the extensive Zola, State spared.” that he be voice testimony during tation A.2d 112 N.J. hearing relating to the defendant’s back- (1988).29 is not a fact to be Allocution character). ground and However, proved in the sen disproved. case, capital jury is tencing phase First, although Instruction No. 4 told of matters tech not limited to consideration it consider only should all nically making evidence. defined as the trial presented “evidence” profoundly of whether moral decision sentencing hearing mitigat- as it related to death, it impose a sentence of must consid factors, the other instructions made and circumstances of the er all facts consider as- could clear crime, background and the defendant’s sentencing hearing a of the trial or pect any mitigating factors raised character and relevant. In- juror considered particular jury’s Plainly, the defendant. delib 7 told the that: No. struction assessing are limited to techni erations sentence, you imposing Before death evidence. cal unanimously be convinced must appropriate penalty for the question before us whether being considered. might interpreted the instruc- individual defendant jurors process considering involves forbidding them from This consideration tions as your you apply must reasoned offered in allocu- the defendant’s statement above, deciding whether the situa- judgment As discussed tion. allocution here consisted states that con- The defendant’s "[e]vidence 28. CJI-Crim. 1:03 witnesses, acknowledged testimony he a short statement which sworn sists evidence, stipulated, guilt that it sentence him and asked the exhibits received admitted, imprisonment. judicially facts." life noticed *32 imprisonment tion calls for life or re- jurors able properly would have understood quires imposition penal- of the death they should fully consider the state- ty, light totality of the of the circum- ment offered the defendant in allocu- present. you If stances are not all con- tion. reject We the defendant’s conten- is the appropriate pen- vinced that death tions. alty, the sentence must be imprison- life D. Sympathy Instruction ment. objects The defendant to the fol Regardless of findings you lowing given instruction at the conclusion steps one, three, made in you two and do guilt phase of the of the trial: not have to return a of death. verdict During the course of you the trial re- There is never requirement you ceived you all the evidence may impose must a death sentence in any properly consider to decide the case. situation. Your by applying decision must be made Also, closing argument defendant’s the rules of law I give you to the jury counsel mercy, noting asked the for presented evidence trial. Neither you your “each one of has it in hand to sympathy prejudice nor should influence spare (v. 2A, 56) Gary p. Davis.” If coun- your decision. jury sel could ask the mercy under (v. 2, 347) p. argues The defendant that this circumstances, these juror a reasonable may instruction have misled the hearing these instructions must have con- believe that it could not “mercy” consider purpose cluded that offering determining whether the defendant defendant’s statement in allocution was for should be sentenced to death. The defen- in passing consider sentence. object dant did not to the instruction when Compare Boyde, (court 110 S.Ct. at 1195 given it was clarifying and did not seek a Supreme notes comment of California during penalty phase. instruction Thus Court, below, in People Boyde, v. 46 Cal.3d review asserted error under the 212, 251, 83, 105, Cal.Rptr. 758 P.2d plain error doctrine. (1988), that it was “inconceivable [that] that, would have though believed The defendant cites a number of cases in permitted to hear support defendant’s back- of the notion that the instruction

ground and character evidence and “improperly his at- jury’s ability undermined the torney’s lengthy argument concerning that fully to consider mitigating evidence, it Brown, could not consider that evi- evidence.” Parks v. 860 F.2d 1545 dence.”). Thus, (10th Cir.1988), nom., our examination of in- rev’d sub v. Saffle — whole, Parks, -, structions as a as well as the con- U.S. text hearing, (1990); leads us to L.Ed.2d 415 Legare see also v. State, (1983) conclude that there is not a “reasonable 250 Ga. 302 S.E.2d 351 jury applied likelihood” that (anti-sympathy penalty phase instruc- instruction prevent- tions No. 1 and No. 4 in a may option manner confuse as to its to recom- considering However, it from constitutionally mercy). rel- mend these eases do not contrary, support evant evidence.30 On the reason- position.31 the defendant’s The in- Supreme Boyde 30. Court in used the sympathy, term "must avoid influence of senti- ment, passion, prejudice, arbitrary "evidence” in a non-technical sense to include or other Parks, imposing all material and circumstances factor when relevant to sentence.” jury’s sentencing Supreme upheld S.Ct. decision. at 1259. The Court stating: use of the instruction “It is no doubt - Parks, Supreme constitutionally permissible, 31. Court in if not constitution- Saffle -, ally required, 110 108 L.Ed.2d 415 for the State to [citation omitted] Ap- reversed the Tenth Circuit Court of insist that 'the individualized assessment of the appropriateness Brown, peals’ decision in Parks v. 860 F.2d 1545 of the death a mor- [be] (10th Cir.1988), defendant, heavily upon by inquiry culpability a case relied al into the challenge anti-sympa- response mitigating the defendant in his thy to the and not an emotional quoting instruction in this case. The Court evidence.’” 110 S.Ct. at Califor- Brown, rejected challenge given to an instruction nia 841, (O’Connor, J., sentencing phase (1987) which told the that it con- *33 here, mitigating the only for word could consider factors given taken word

struction signif- This 3:01, given guilt “they in the found to exist.” is which from CJI-Crim. phase, jurors because the were instructed phase, icant proceed weigh- jury they only the law. could the properly instructed the that found, unanimously a if be- ing process they find there is not reasonable We that doubt, statutory have applied the would a that a jury yond likelihood that reasonable way precluding it from fur- this instruction a The instruction aggravator existed. mercy. plea for considering the defendant’s jury informed the that: ther mer- defendant’s contention is without The all, jurors the If or one or more of be- it. mitigating lieve that a factor or factors outweigh aggravating the factor or Mitigating Proving Factors E. exist, jury the shall factors found to then following objects also to the life imprisonment. Defendant enter verdict of a during given portion of Instruction No. 5 juror would We believe that a reasonable sentencing phase of the trial: interpret portion of Instruction No. 5 steps your delibera- If in first two any juror thought indicating as that if one findings you unanimous tions have made mitigation single out- any that factor a proven beyond has prosecution that factors, jury weighed aggravating ag- doubt that one or more reasonable imprisonment. must return a verdict life miti- exist and that no gravating factors Our conclusion that Instruction exist, mitigating or that a gating factors jury supported No. 5 did not mislead exist, you now factor or factors must by the taken as a whole. instructions prov- prosecution whether the has decide First, charge general jury states any aggravation that factors out- en single rule all the law that describes “[n]o weigh any mitigation. factors in Therefore, applied. must be argues alternately that defendant together as a rules must be considered (1) permitted jury either the instruction 2 tells the whole.” Instruction No. particular mitigating a factor consider aggrava- those may only that it consider unanimously only if it found the existence beyond to exist a reasonable tors found (2) mitigator;32 or that instruc- such may jurors “[y]ou tells that doubt. It imposed prosecution the tion on the burden assign weight you aggra wish each establishing mitigators the existence of It vating mitigating factor.” also states reject a doubt. We beyond reasonable jurors or more finds suffi one “[i]f interpretation of this instruc- mitigating cient factor factors exist that tion. outweigh specified aggravating factor or factors, then the result a sentence of life No. is con When Instruction whole, imprisonment.” This instruction does not we find that there is sidered single jurors juror tell the that a could find a reasonable likelihood that outweighed mitigator aggravator an interpreted the instruction in manner only previously if by the Instruction had determined suggested defendant. unanimously mitigator weigh “must existed. 5 informs No. absurd, interpretation would be aggravating factor or factors found Such against mitigating particularly when considered with the fact any and all exist jurors they mitigators some of the offered were not told factors.” Thus, may thought they unlikely precluded were curring). it is ... well support any mitigating even if the in- considering a claim of error un- could from evidence during given pen- question were struction in alty phase jurors agreed all 12 on the existence less the trial. Milk, particular such circumstance.” S.Ct. Because we find that at 1870. Maryland, 486 In Mills require this case did not the instructions in mitigating unanimity for the consideration of of death on the basis Court reversed sentence evidence, inapplicable. Mills is case created "a instructions in that jurors that reasonable probability substantial *34 subjective defendant were of nature and burden prosecutor on the prove to the ex- intangible were to extent it would be mitigators beyond istence of a reasonable finding difficult make a as to their exist- Although doubt. interpretation ence or nonexistence.33 Instruction No. plausible grammatical as a matter of con- jury “[tjhere tells the is no burden of struction, there is not a reasonable likeli- proof proving as to or disproving mitigat- jurors hood that interpreted the in- you ing factors should consider all of struction in the suggested by manner presented the evidence at the trial and the Further, defendant. we note that Instruc- sentencing hearing mitigat- as it relates to “[tjhere tion No. told the is no ing factors.” Instruction No. 6 tells the proof proving burden of as to disproving ” jurors “[ejach you must also decide mitigating Thus, factors.... for the yourself weight give what each miti- adopted to have the defendant’s strained gating you circumstance that find exists.” interpretation of Instruction No. it would Finally, Instruction 7No. makes it clear to specifically disregard have had to Instruc- juror that even if he or she had not No. A juror tion reasonable would not mitigating considered a previously factor adopted have such an unreasonable inter- unanimity because of the lack of pretation of Instruction contrary No. previous any deliberations or for other rea- language the clear of Instruction No. 4. son, juror could do so the final Thus, the defendant’s contention is without consideration of whether death was the merit. appropriate penalty. Instruction No. 7 part:

stated in relevant F. Jury’s The Sense of Responsibility sentence, imposing Before a death you unanimously must be convinced that objects The defendant also appropriate penalty death is the for the Instruction No. 10 which states: being individual defendant considered. pur- You are instructed that for the process This consideration involves a I, poses sentencing, Count Murder In you apply your must reasoned Degree The First After Deliberation and judgment in deciding whether the situa- II, Degree, Count Murder in the First imprisonment tion calls for life or re- Felony merge, and Murder the defendant quires imposition penal- of the death would receive a life sentence on these ty, light totality of the circum- two counts. present. you stances If are not all con- has sentenced the Court defendant appropriate vinced that death is pen- III, single to a life sentence on Count alty, the imprison- sentence must be life Conspiracy to Commit Murder In The ment. IV, Degree, Degree First Count Second Regardless findings you V, Kidnapping, Conspiracy and Count To one, three, steps made in you two and Degree Kidnapping. Second Commit do not have to return a verdict of impose The decision on whether to con- requirement death. There is never a or consecutive life current sentences is impose you must a death sentence upon the Court. situation. added.) Thus, (Emphasis considered as a argues The defendant that the instruction whole, properly the instructions informed told defendant would re- juror that he she each could consider despite ceive a life sentence its verdict and any mitigator though even the jury had might jury’s thus have diminished the unanimously mitigator found such exist. responsibility determining sense whether the defendant should live or die. For the same reasons as discussed above, is without mer- reject defendant’s contention argument defendant’s improperly that the instruction it. imposed the committed, example, "[a]ny

33. For as miti- at the time the crime was offered gators: age question other circumstance which bears on the defendant at the time crime, mitigation.” the emotional state of the defendant (2) May’s family; urged her murder on Mississippi, 472 U.S. Caldwell respond L.Ed.2d crime with defendant’s eye;” (3) reversed the defendant’s “eye denigrated Court for an prosecutor ar- where the death sentence exercise his constitutional ultimately jury that it did gued to the (4) improperly asked to “sit rights; *35 be- the fate of the defendant determine community to the conscience” and re- any sentence rendered would be cause community; to message” the and “send a automatically supreme the state viewed (5) urged jury disregard the improperly prosecu- that The Court held the court. plea mercy. reject for We the defendant’s attempt jury’s minimize the sense tor’s contentions. the defendant’s determining appro- the responsibility for of penalty “rendered priateness of the death on the of the Murder Victim’s Impact A. sentencing capital proceeding inconsist- the Family Eighth height- Amendment’s ent the reliability in the determina- ened ‘need for Maryland, In U.S. Booth punish- appropriate is the tion that death (1987), 96 L.Ed.2d ” specific Caldwell, ment in a case.’ the the reversed defen Court U.S. at the on the basis that dant’s death sentence improperly admitted a vic trial court had However, inap- decision the Caldwell (VIS) during the sen impact tim statement here. The intent and effect plicable clear phase the The defendant tencing of trial. the No. 10 was to inform of Instruction and robbing convicted of Booth was assume, aas start- jurors they that should elderly couple. The murdering VIS penalty the ing point, that the least severe report special prepared by the part of a life sen- was to receive was two defendant that Division Parole and Probation tences, State of might re- and that the defendant background, the edu described or consecutive sentences. ceive concurrent history, and employment crimi However, possi- not cation and the instructions could the the nal record. The statement described bly from clear under- have detracted family life the crime on the victims’ standing jury despite that those effect of the sentences, statements from a jury ultimately if and included detailed the determined sanction, his appropriate describing the son of the victims lack that death was put following par sleep depression then the defendant would death. his his and there to be no likeli- his giving opinion find reasonable murder and his We ents’ jurors that the could have understood parents hood like animals.” were “butchered their ver- implying instruction as daughter the VIS The victims’ stated imposing a death sentence would dict that the murderers could “never be rehabil out. The defendant’s contention Booth, be carried S.Ct. itated.” U.S. merit.34 is without The at 2531. Court held that the informa was “irrelevant to tion contained VIS Closing Remarks Y. Prosecutor’s decision, capital sentencing that its constitutionally unac admission creates objects to certain remarks defendant may impose ceptable jury risk that closing argu- prosecutor in his made arbitrary capri in an penalty death during jury ment Booth, (1) at 502- prosecutor: cious manner.” U.S. phase. He claims that impact Virginia 107 S.Ct. at 2533. improperly described the death, jury indeed be executed. 8 also informed the the defendant would 34. Instruction No. Further, it "[y]ou Instruction No. 7 told the that the must assume you impose if it." “must decide whether the defendant should carried out In now will be footnote, imprisonment.” objects "as- be Also, to death or life to the word sentenced defendant arguments "fail[ing] convey of defendant’s counsel that it sume" as asking mercy made Mr. life.” Con- defendant was the sole arbiter of trary Davis’ contention, unmistakably decide we believe the clear that to defendant’s question parlance appropri- whether the defendant should word "assume” in common ately conveyed it voted for live or die. if — Gathers, South Carolina v. relate to the circumstances -, cards], prayer crime. “The content [the again however, the Court once considered the possibly have cannot been rele- ” question of the relevance of the status of vant to the ‘circumstances of crime.’ impact the victim of his murder on (Emphasis original.) Id. family capital sentencing in a case. In argues following Gathers, prosecutor closing argu- prosecutor comments in this case extensively ment reviewed the circumstanc- proscription violated Booth’s and Gathers’ surrounding es victim’s murder against the introduction of evidence or park. long excerpts He read a “pray- from concerning statements im- emotional er card” possessed victim at the pact family: of the crime on a victim’s time of emphasized his death also I you phrase, want to remember the *36 the victim his registration had voter card “Equal Justice,” because in for some this Court, in him. The revers- go May, case life must on. Gary For for ing conviction, agreed the defendant’s that Krista, Ginny’s parents, Brandon and for the regarding statements the victim’s char- Alice, Rod her and sister. brothers and unnecessary acter were to under- is, painful As empty as it as and hollow standing crime, of the circumstances of the is, it pain they the for have this borne suggestion and conveyed the that de- “[the past year they must to bear. continue deserved a death sentence be- fendant] them, go one, For life must on. But for religious cause the was a man victim and a justice manner, equal. can Not in be the registered Gathers, voter.” 109 S.Ct. at manner, not in justice the same un- but compared 2210. The Court the Gathers law, der the Ginny because in field that case with Booth: rights, had no she was not afforded a placed The statements the in before presumption of innocence. She had no descriptions Booth of the included vic- jury. She had no trial. had an She personal characteristics, tims’ statements opportunity beg life, for her ask for concerning impact the emotional of the life, begging her and that was met with family, crime on the victims’ and the the slugs, hideously butt of a rifle and 14 family opinions members’ about the pumped body. into her in crime and the defendant. At issue the You, week, through past and un- present case is a statement of the first oath, your Gary der have afforded Davis concerning personal sort—one character- law, rights presumption the under the in this case it istics of the victim. While You him innocence. have afforded prosecutor was the rather than the vic- every right and that constitutional civi- the tim’s survivors who characterized vic- lized society should afford to an individu- personal qualities, tim’s the statement is now, al. You under the law and under in indistinguishable respect relevant your oath, opportunity the do Booth, from in Booth. in that As justice, equal justice, urge you and I “[ajllowing rely on infor- [this to do. imposing result in ... could mation] 2A, 59) (v. p. respect We note that with death sentence because of factors about comments, these assorted the defendant unaware, which the defendant was object not contemporaneously did to them irrelevant to the were decision to and thus our review is limited to determin-

kill.” ing alleged whether error rises Gathers, at 2210-11. While plain Wilson, See 743 P.2d level error. recognizing had Booth case left 415. We find the statements concern- open possibility kind of infor- family impact the victim’s were on impact mation a victim state- contained improper. ment could admissible if it “relate[d] crime,” Although language is broad directly there to the circumstances of Gathers, concerning found decisions the Court Booth Gathers prohibition scope against case that the did the evi- the Gathers statements describing impact prosecutor’s do statements We not believe

dence or family, upon implicate of the murder on a victim’s in this the con- comments case examination, these closer we do believe addressed the Court in its Booth cerns require reversal in this case. decisions We decisions. note that un- Gathers presenta- Booth, the Court found that like the extensive comments Booth from describing in detail the tion of the VIS regarding the effect of the victims’ children their impact of the victims’ murders on murder, parents’ the statements their “constitutionally unac- family created a prosecutor here were couched may impose the ceptable risk terms, “pain” general speaking of most arbitrary capri- in an “empty” it and “hollow” was how Booth, 502- manner.” cious family after the murder. These held that 107 S.Ct. at 2533. The Court did no than state obvi- statements more allowing rely could VIS anger by speaking grief and the ous imposing sen- result in the the death family caused the murder. When tence factors about which because of statements, taking up isolated less these unaware, ir- defendant was and that were pages seven lines more than ten than kill. This evi- relevant the decision to transcript prosecutor’s closing held, dence, the Court could divert context, argument, are considered *37 away jury’s attention from the defendant’s unlikely the of these state- that admission record, background and and the circum- “constitutionally ments created unac- Booth, at of crime. stances U.S. ceptable jury may impose risk 505, 107 S.Ct. at 2534. The death sentence capri- penalty arbitrary death and perception not “turn on the should that 502-03, Booth, manner.” cious sterling victim was member of the com- Further, 107 S.Ct. at 2534. Court questiona- munity rather than someone Booth, degree recognized in a defendant’s Booth, 506,107 U.S. at ble character.” consequences knowledge probable Also, presentation 2534. S.Ct. at may his culpa- of his actions moral increase prospect of a such evidence offered the constitutionally significant bility man- sought mini-trial as the defense to rebut Booth, ner. 482 U.S. at 107 S.Ct. at character, thereby evidence of victim’s 2534. from distracting its constitutional- determining ly-required task of Here, whether Booth, unlike in the defendant can appropriate light charged knowledge likely with of the background and record of the accused family. crimes the victim's effect his on particular and circumstances of the and The defendant knew the victim had Booth, 507, 107 U.S. at S.Ct. at crime. Further, kidnapped her he met husband. front of the the victim in of one children. knew had children and used the He she rejected statements from The Court also clothes for the children as drop offer to off feelings regard- to their family members as kidnap May. He part of scheme to and ing presen- crime “the formal because family Becky met with members dur- Davis the State can tation of information May. futile He long, search than to inflame the purpose serve no other brother, MacLennan, May’s Don spoke with deciding the on jury and divert it from case sorry told him he was hear concerning evidence the crime relevant 276) (v. happened, p. He had Booth, what and the defendant.” present when his wife assured Gathers, was also 2536. In similar- 107 S.Ct. at family members of MacLennan ly, the death sentence the Court reversed good Ginny dearly loved and we're argu- prosecutor, during closing after the “[w]e every- folks we want to do ment, extensively Christian focused character find thing help you your daugh- we can to of the victim. The content victim’s 163) Thus, (v. 24, p. he cannot claim “provide any ter.” prayer cards did not informa- cul- that was not foreseeable that his actions tion relevant to the defendant’s moral Gathers, “pain” family at 2211. cause the victim’s pability.” would “emptiness.” (court respect, In this this case is proper prosecution’s holds argument also unlike Gathers where the defendant that life of victim was worth defendant’s charged having could not be knowl- life “in the justice” scales of in light of edge aspects victim’s charac- defense closing counsel’s argument emphasized by prosecutor ter including gone victim was and there nothing religiousness or his civic-mindedness. back). could bring do to her Such evidence not relevant to the de- moral culpability fendant’s We conclude Gathers that the brief mention properly thus was excluded. of the impact of the murder on the victim’s family improper was not in this case. Fur The brief mention of the victim’s ther, even if it was error for prosecutor family was proper also for another reason: family mention victim’s under the the defendant invited such comment. decisions, Booth and Gathers we conclude Davis, Becky witness, a defense testified that the error beyond was harmless a rea through previously testimony recorded sonable doubt. The brief mention of the guilt phase that the defendant had de family victim’s point did no more than to a stroyed the lives of the victim’s family.35 fact which consequence was an obvious (v. 33, 67) p. The defendant in his allocu the defendant’s crime and of which the tion stated that “sorry he was to the fami was undoubtedly aware: the defendant’s Also, ly.” closing his counsel stated in crime pain had caused much suffering argument “if thought [he] [the to the family.36 victim’s would peace have five seconds of children] death, by Gary Davis’s would choke [he] him_” (v. 2A, 52) the life out of p. The B. Other Comments the Prosecutor prosecutor’s passing reference to the vic objects The defendant also family suggested tim’s *38 portion prosecutor’s that of the remarks justice required apology” more than “an urging the jury provide “equal justice.” from the defendant. It rebutted the defen object He did not to this remark at trial and implicit argument dant’s that a death sen thus it must plain be reviewed under error provide tence would little comfort to the analysis. argues The defendant that this by urging children “justice” that would language especially egregious was because provide indeed some comfort. See prosecutor disparaged “the Mr. Davis’s ex Saiz, 2 (Colo.Ct.App.1982)(pros 660 P.2d rights, improper ercise his constitutional properly ecutor could make statement ly arguing that the justice system criminal portion closing argument rebuttal in sec by extending coddles an accused to him degree prosecution ond assault nobody that procedural rights,” jury and that the had complaining knew whether witness had “given guy a fair trial and could now been satisfied with apology defendant’s hang him.” opened when defendant Our review of the record indi himself door on subject by prosecutor claiming that witness cates that the did not appar was make such ently apology); jury satisfied with defendant’s statements to the statements Clark, prosecutor see also State v. 108 N.M. fairly did make could not be — 322, 333-34, denied, 772 P.2d cert. implying sug characterized as the attitude -, (1989) gested by Further, L.Ed.2d 271 the defendant.37 al- trial; Becky testify person Virginia Davis did not May of the loss of did not draw the however, transcript testimony gave jury she attention of the factor of which it jury. at her already trial was read to the was not aware. following family 36. We note that at trial the 37.Also record indicates that it was defense Gary May, members testified: band, the victim's hus- counsel who first "equal justice” introduced the notion of MacLennan, brother, During James opening the victim’s into this trial. MacLennan, .father, argument guilt phase, Rod MacLennan, the victim’s Don in the defendant’s counsel brother, the victim’s and Sue told the that case will ”[t]his be about life MacLennan, death, asking you provide the victim’s sister-in-law. Thus the and we’re that Thus, justice equal p. indication to the that the victim had a under the law.” 36] [v. family family complain and that the suffered as the result the defendant cannot now that there they together. how all fit I assigns improper mo You will see though defendant contrasting that, you your job prosecutor urge to do because tives to the Virgi law, treatment of to the extent murderous here is to follow the way society civilized May you disregard with the nia that Mr. Truman asks defendant, person such as the disregard with a him. urge you deals I it. their face the conclude that on we cannot 2A, argues pp. The defendant 57-58] [v. appealed preju improperly remarks statement, prosecution, that jurors. reject We passion dice telling mercy that was People v. defendant’s contention. See improper consideration in the determination 551, 572-73, McDowell, 46 250 Cal. Cal.3d disagree. sentence. We The clear 541-42, P.2d Rptr. remarks, considered in import these — U.S. -, denied, cert. rebuttal, prosecutor’s as context of the (1989) (court rejects 104 L.Ed.2d response counsel’s assertion to defense argument prosecutor’s statement that that closing during his statement sentenc- plead mercy right had for defendant kill,” imply- ing shall not phase “[t]hou plead for victim’s no one could but that command and not the that the biblical argument imply and did not proper life was guide jury. law of state should [v. to constitu that defendant was entitled Thus, 2A, p. improper it was not 52] rights). tional prosecutor to comment objects to the The defendant also law, and not the defense should follow the closing prosecutor’s statements arguments implied counsel's you must send a is an act that now wrong. “[t]his law was 2A, message p. on” community [v. Testimony Regarding VI. you sit “[y]ou know 48] Defendant’s Imprison- the “Under Sentence your community.” the conscience of [v. Aggravator ment” 2A, argues that such p. 49] However, improper. al comments are the trial court argues The defendant though improper such remarks would de- allowed the to consider improperly trial, guilt very func phase deciding guilt-phase testimony fendant’s capital jury in a case is tion of a prosecutor proven beyond had whether the “express the conscience of the communi a reasonable doubt the existence of *39 question life ty on ultimate of the statutory aggravator defined section Booth, at death.” U.S. 16-ll-103(6)(a), the un- that defendant was Further, recognized we have that at 2533. at time imprisonment der of the sentence goal. penological is valid deterrence Virginia May. he Before he tes- murdered Thus, prosecutor’s urging of the to the trial, guilt during phase the of the tified improper. message” “send a was not by the the defendant was assured challenges the prior The defendant also the of that admission of existence prosecutor during the following only remark of for could be considered credi- felonies sentencing phase, which he did ob the to bility purposes phase at of the trial.38 each at ject trial: the dur- On cross-examination of defendant guilt phase, the the defendant admitted gentlemen, you will have all Ladies and previous According to them all. to his convictions. the instructions. You can read inherently during something improper the of the under- in the term in his own defense trial offense, "equal justice.” prosecution lying the could use the concerning prior testimony his con- assuring prosecu that the In the defendant 38. prove the habitual crimi- victions to elements of prove of the tion have to the existence would Instead, prove nality. prosecution ha- the must evidence, through independent prior felonies criminality through independent evi- bitual may Chavez, our have relied on decision in the court People Chavez, ex- 621 P.2d 1365-67. We dence. (Colo.), 621 P.2d 1362 cert. opinion applicability press of no on the Chavez denied, 69 L.Ed.2d proof statutory aggravators in the the of Chavez, (1981). we held that if defen 398 dant death-sentencing phase capital trial. of facing charge an habitual criminal testified defendant, prosecutor improp- arrest, indicating the the then that he charged had been on the erly proving relied this admission in degree, sexual assault the first prior felony existence convictions had rights been advised of his and had argues The aggravator. posted $10,000 defendant bail. Finally, Becky Davis ag- this prosecutor proved the should videotaped testimony stated her on independent evidence. gravator with murder, day the the defendant was celebrating day (v. last parole, p. his prosecutor has burden 41) prove beyond a reasonable doubt Considering light this evidence in the statutory aggravator exists. each prosecution, most to the favorable 11—103(l)(d), (1986). 8A C.R.S. § 16— Jones, 191 Colo. 551 P.2d 706 that in People concede this defen- case the support we find it is jury’s sufficient guilt-phase testimony dant’s not be could that, beyond doubt, finding a reasonable prove aggrava- used to existence of the aggravator statutory existed. During guilt phase, court in- tor. that it consider structed was not to VII. Admission Exhibits on testimony respecting the defendant’s Prior Crimes

prior any purpose convictions for other Defendant’s credibility. However, than the defendant argues The defendant that the trial court request during did not a similar instruction improperly admitted He Exhibit 108. sentencing phase and we do not believe prosecution required claims that the required was judge sponte sua present “duly authenticated court records Moreover, give an instruction. our such conviction, judgment, sentence and mitti- persuades review of record us that the prove mus” order the existence did prosecutor aggravator establish this statutory aggravator the defendant through independent the defen- evidence imprisonment was under a sentence testimony. dant’s May. Further, time he murdered argues defendant evidence of First, prosecutor presented what was previous underlying facts convictions con- designated Exhibit 109. Exhibit 109 de- should not have been admitted.39 The signed by a certificate chair- sisted of object fendant did not admission parole certifying man of the board exhibit, we consider thus its admission paroled July was on plain error under the standard. discharged parole due to and was from Second, prosecutor July First, we find that it was presented designated what was Exhibit prosecutor improper prove “reg- in Exhibit 108 108. Included imprisonment aggrava “under sentence here, it ister of actions.” Relevant through tor” documents contained by the it indi- certified district court and *40 to pointed Exhibit 108. The defendant has pled the defendant to guilty cated that had we see no for authority, no and other basis degree, in the and had sexual assault first requiring the adopting a rule submission imprison- eight years to been sentenced particular other the mittimus or document Also, part copy a of Exhibit 108 ment. was aggravator to this when there establish agreement in which plea of the that case question authenticity no reason to and charged that the defendant was indicated accuracy of the documents used here. degree, assault with sexual first charge, argues and also that in Peo elements of that Defendant listed the (Colo.1989), ple the defendant P.2d 854 Borrego, stated that had entered v. 16-11-103(6), section plea guilty. Also in Exhibit 108 was a we held that person’s prior rights felony written that con copy of the advisement of establishes factor, aggravating given the defendant at the time his viction is an does to bodily injury, pain kidnapping, admitted here extreme 39. The documents indicated prior case had in the defendant's the victim been threatened was armed with a knife. that the defendant death, serious with imminent discretion, in its could have sentenced the evidence of into provide for admission circumstances of consecutive life sentences. underlying factual defendant to However, closer read- crime. prior might sentences have Such consecutive holding ing Borrego argues, reveals jury, the convinced the defendant the trial court’s case, sustaining refus- appropriate an was not sen- that death prosecutor during the sen- to al allow tence, it considered the stat- particularly as capital case to tencing phase “the utory mitigating circumstance that de- factual underlying of the present evidence continuing threat not a to fendant [was] prior of the con- defendant’s circumstances society.” persuaded We are not victions, plain lan- upon based was “[t]he argument. 16-ll-103(l)(b) grants the guage of [which] First, the defen note that we wide to determine judge trial discretion object alleg the trial court’s dant did not admissible.” relevant and what evidence Thus, sentencing. we must edly improper Thus, we held 774 P.2d at 855. Borrego, analy plain error review this error under ruling “not an that the trial court’s Although judge, pursuant the trial sis. Here we Id. abuse of discretion.” act, should re the habitual criminal properly ad- that the evidence was believe sentences, life part the relevant evidence turned three see missible crime, (Colo.Ct.App. concerning Early, the nature P.2d character, background, history 1984) (court criminal holds that habitual 16-ll-103(l)(b). this Under defendant. sentencing § more severe statute substitutes section, all of such evidence is admissible offense), range each substantive for also, court’s discretion. Peo- trial See con required impose trial court was not (Colo.1990) P.2d ple Saathoff, 790 Further, in this secutive sentences case.40 ruling (court trial court disapproves of sentence we find that even if a consecutive prior convictions evidence of defendant’s proper, the have been trial did would such evidence did was inadmissible because sentencing until postponing not err in such specific aggravator). comprise sentencing phase of the trial. after the asking the trial objection, an absence of procedures re 32(b) establishes Crim.P. its discretion to exclude court to exercise sentencing. It quired to be followed evidence, find no such error. imposed requires that sentence be without delay.” provides, It an “unreasonable also VIII, Non- Sentencing Defendant’s however, that: Capital Convictions sentence, imposing the court shall Before argues that the trial court Defendant opportunity the defendant an afford non-capital him on improperly sentenced behalf, in his make a statement own guilt following phase convictions any mitigation present information in him in prejudiced that this punishment. The state also shall be precluded from phase because given opportunity to be heard on mitigating effect of the considering full imposition of material to the sen- matter claims proper sentence. tence. failure to error consisted court must sentence both When the sentences, separate him to life sentence felonies, felony and for other as in class 1 statute, criminal pursuant habitual case, inappropriate delay it is not -103, (1986 8A sections 16-13-101 to C.R.S. *41 felony sentencing on the other convic- final conspiracy Supp.), on the counts of & 1989 felony 1 tions until after the class sentenc- degree, the sec- to commit murder in first procedure, ing hearing. the Under conspiracy ond-degree kidnapping, advantage of can take full the trial court kidnapping. de- second-degree commit sentencing court, the 1 hear- acting procedures of class that the trial fendant reasons evidence; 1387, sentencing Montgomery, identical otherwise the v. 669 P.2d See impose (Colo.1983) (The imposition be court has discretion to sentences of concurrent 1389 consecutively concurrently only or required served where the counts for sentences other.). supported each convicted are which a defendant is ing where all the relevant to penalty. of factors ror’s beliefs about the death In sentencing are considered. The failure of Witherspoon, Court the the held that state object the defendant to to the trial court’s persons could exclude for cause who make delay resolving question in the consecu- (1) they “unmistakably it clear that would may life tive versus concurrent sentences against imposition automatically vote have part well been a calculated strate- capital punishment regard without gy pos- to obtain the least severe sentence might developed evidence that may hoped counsel sible. Defense them, (2) trial before case or that return that the would a verdict of life their attitude penalty toward death imprisonment judge and that then prevent making impar- would them from impose life would concurrent sentences af- guilt.” tial decision as to defendant’s considering mitigating ter all circum- Witherspoon, 391 U.S. at n. presented by stances Un- defendant. (emphasis original). S.Ct. n. 21 in circumstances, these der we conclude that However, concedes, as the defendant properly the trial court to deter- declined Witherspoon Court modified the mine whether defendant’s life sentences Wainwright Witt, in standard v. 469 U.S. prior were be concurrent or consecutive (1985). L.Ed.2d 841 capital sentencing hearing. Witt, juror In determined Court may be excluded because of his views on IX. Prospective Exclusion of punishment if capital juror’s “the views Jurors Cause for ‘prevent impair substantially would or argues Defendant the trial performance juror of his duties as a granted improperly prosecutor’s accordance with his instructions challenge jurors motion to three for cause. ” Witt, oath.’ 469 U.S. at 105 S.Ct. at considering Before specific defendant’s ob (footnote omitted). rejected The Court jurors, jections as to the three it is useful argument prosecutor need to review the court has standards this juror “automatically” show would adopted regarding challenges for cause. against penalty. vote the death The defen- very We considered this issue in con dant concedes that Witt establishes the death text Colorado’s scheme proper challenges evaluating standard for Drake, P.2d 1237. The defendant for cause under the federal but constitution argued pro Drake exclusion argues applicable that the standard Colo- spective jurors opposi on the basis of their long was adopted rado before either Witt capital punishment forbidden tion Witherspoon in the case of Stratton rejected by the Sixth Amendment. We (1880). Stratton, People, 5 Colo. 276 In argument, holding: this court reviewed the exclusion of three prospective jurors exclusion [The] jurors expressed who had reservations solely they on the basis are unable capital punishment. about The court re- impose under any circumstances to defendant, versed conviction legit- serves the state’s finding disqual- that the trial court erred in in having single jury imate interest jurors, stating: ifying the impartially can consider facts scruples against inflic- Conscientious conscientiously apply the law in the death-penalty necessar- tion do not guilt-innocence case and sen- at both the ily disqualify juror entertaining them. tencing phases capital of a trial. They preclude must be such as would Drake, 748 P.2d at 1245. Drake we did capi- finding guilty him a verdict of proper determine the standard for re- case, fairly. trying tal from solving challenges capital cause Colo, Stratton, at 277. points The defendant to the case of eases. Illinois, Witherspoon urges, textual The defendant without *42 itself, (1968), support opinion as from the Stratton estab- lishing this in must appropriate opinion the standard for evalu- court’s that case II, ating challenges ju- for cause on a been Article Section 16 of based based on reviewing rul guaranteeing a the trial court’s the Colorado Constitution ing excluding in jurors the three for cause also impartial jury. fair and case, this we note that the trial courts are Young in Peo- argues that our decision ruling in afforded broad discretion on chal 467-68, P.2d ple, Colo. lenges prospective jurors, for cause (1971), Witherspoon holding that the denying challenges such will be decisions jurors was not of standard for exclusion only of discre set aside when clear abuse state,” the law “inconsistent with Drake, by is disclosed the record. tion independent an implies also that there is 1243. P.2d at We are deferential disagree We under state law. standard in “the trial court such matters because interpretation of the with the defendant’s only judge judicial trial is the officer able this court hold that prior decisions of by per the perform critical assessments the jurors of on basis of their the exclusion credibility and de sonal observation is scruples regarding juror.” prospective meanor of a Id. at by governed by the standards enunciated now principles, 1243. Guided these we Court With arguments defendant’s as to the address First, under law at the time of Colorado challenges propriety of the for cause case, did sen- Stratton particular jurors. the defendant. The sole function of tence A. Thelma Wolfe guilt or was the determination Following innocence.41 the determination permitting After extensive voir guilty of the the defendant was both the dire examination Wolfe counsel, charge, judge then the defen- prosecutor sentenced and the defense as well circumstances, questioning prospective juror him dant. Under such stan- as self, following questioning is chambers dard stated the court Stratton judge following Wolfe the trial made the excluding for proper: there is no basis ruling: unwilling juror merely because he would be require upon did not I

to do that which law think based Mrs. Wolfe’s indica- may already long juror, despite As as tion have formed him do. that she that, case, opinion coupled an capital punishment, reservations about inability really her to make a determina- properly question determine the could tion or whether or she could challenged guilt, be for he could not cause. could not make decision whether the Thus, argument reject the penalty, case is one for the death com- challenges under our current for cause two, I excuse for bined with will [her] renewa- bifurcated scheme are under cause the circumstances.43 under the standard enunciated Strat- ble ton, and instead will consider whether p. Our review of the record [v. 1099] properly applied the stan- trial court Witt indicates that the trial court's decision supported proffered by both bases dard.42 XXIV, Laws, juror disqualified by as a See Colorado Ch. Crimi- moned shall General Code, (1877) (judge may expressed previously nal sentence reason of formed § 268 opinion guilt to death if the finds that the defendant killing with reference to or inno- accused, satisfied, premeditated or done was deliberate or cence of the if the court is attempt perpetrate perpetration juror from the examination of or from felony). evidence, some impar- other that he will render according evi- tial verdict to the law and the 16-10-103(1)©, 42. Section 8A C.R.S. trial; dence submitted states: (1) Challenge jurors standard, cause. The court statutory applicable capi- in both This challenge for on one or shall sustain a cause trials, non-capital entirely consistent tal and following grounds: more of adopted standard in Witt. See abo with the 24(b)(l)(X). Crim.P. (j) The existence a state of mind in enmity prospective all juror evincing de- 43.The trial court examined or bias toward the state; however, jurors person or the no sum- in chambers. fendant *43 First, respect juror’s These statements meet court. standard Witt ease. adopted Clearly inability to make determination the trial sentencing phase, response properly court could find that Wolfe’s death to sev- capital punishment views on questions prosecutor, would “sub- eral Wolfe stantially impair performance “I the court: don’t think I could vote told [her] juror duties as a in accordance with penalty,” p. 1085], death for the [her] [v. Witt, instructions oath.” “I think that I don’t could make that deci- [her] sion,” Although 105 S.Ct. at 852. p. 1086], and “I think he [v. support there is some in the record for the life,

probably should in for I don’t be but contention that Wolfe would that,” 21, p. think that I could vote for [v. oath, statements, abide her the other 1089], “I don’t think I could sentence above, prob- discussed indicated that it was penalty,” someone to be—to the death [v. scruples able that her conscientious would 21, p. Although, upon further exam- 1090]. whether, pur- make her unable to consider counsel, ination defense Wolfe indicated laws, appropri- suant to our death was the oath, that she her would be able to follow ate sentence in case. this is not decisive.44 supports We believe that the record We also find that the court was granting challenge disqualifying trial court’s correct Wolfe because of admission, By cause. Wolfe’s own she did bias. A trial court must sustain a chal lenge potential juror think she could ever return a verdict of for cause of a if there regardless juror evincing death circumstances. exists a state of mind in the Wolfe, During Right. you get any defense counsel's voir dire of A. I don’t think will better following exchange occurred between the give you straight either. I can’t answer. I counsel, Wolfe, prosecutor defense and the it, everything don’t believe in but if leads to it (v. 1095-97): pp. really oh, and it I don’t know. — counsel) (by defense court) (by the your you telling feelings Q. Are me that about you trying express your opin- Q. I think are penalty strong you the death are so darn that if go ion and that’s what want hear so placed were law under oath to follow the ahead, Mrs. Wolfe. Tell us. considering you would not follow it if it meant really just A. I’m finished. I don’t know. —I —I appropriate? whether a death say actually get really I couldn’t until I there. I Wolfe) (by juror keep going don’t in it. I know I back believe I I until I A. don’t know. would have to wait forth, certainly but it would have to be get there. really— Q. questions And it is unfair of us to ask these you May questions, Q. I ask some Mrs. Wolfe? them, taking in the abstract without a look at you have indicated—and let me I think what you but we have to do it. I can’t tell what the coming wrong you know if I’m off what try case is about. We can’t this case here in —but is, you penalty, you. said don’t believe in the front of oath, though conviction, you’re really strong If on the under even but that’s not am you penalty, you I know don’t like the death I correct there? penalty, you don’t believe in the death if were Yes, pretty A. much. you under oath and knew the law in Colorado you Q. That can see where under certain cir- penalty, you was that had to consider the death may you appropriate, feel it be am I cumstances appropriate if it were return a death ver- and dict, right there? you would follow that oath? yes. A. I— to, suppose. I I A. would and, know, just you you Q. Do this is feel— Q. You wouldn’t like it? you bottom line—do cumstances, feel that under those cir- No, certainly A. I wouldn’t. you you case where can think of a you Q. do it? But would willing penalty— for the death would vote to, yes, A. I would have if I took the oath. going you and I am not to ask what case think, oh, your own mind would be—but (by prosecutor) yeah, if such and such and such I could vote for law, you Q. want to follow the We know would it? you truly we need to know if can do it. but Oh, gee. Right think of—I can’t A. off I can’t really really give you I can’t A. I don’t know. put anything right off. I have never think that, really straight I answer to because don’t myself position really if I would vote. it, but I don’t know. believe in yes one, very good It can’t be a or no square Not a answer. Q. We’re kind of back to Mrs. answer, as I’m concerned. as far Wolfe. *44 These or vinced him that was a disease.

enmity toward the defendant or bias (1986); arrest, 16-10-103(1)©, 8A C.R.S. convic- experiences state. included his own § (Colo. Sandoval, 733 P.2d 319 People v. driving for under the tion and sentence 1987). judge to the that Wolfe indicated cirrhosis, influence, his death father’s from 21, p. guilty.” he’s she was “sure [v. 1082] his affliction with cirrhosis. and brother’s willing to was set When asked whether she that if there was unequivocally He stated responded, “I’m feelings, not aside her she involved, “I not consider the alcohol would willing, try.” I saying but would I’m [v. In re- penalty.” p. death [v. 1504] Although some of the pp. 1083-84] posed by sponse hypothetical question ato equivocal on this given were more answers counsel, it clear made the defense Olivas the trial court in point, displace cannot consumption of alcohol any that credibility. We are its role as evaluator of defendant, slight in no matter how amount a position, appellate on review of cold in no remotely to commis- or how connected record, juror’s of a incon judge to crime, prevent him from sion would rings equivocal answers the most sistent or voting impose penalty. to the death true; perform judge to it is for the trial Drake, 748 court, such P.2d granting prosecution’s evaluation. in cause, challenge for motion Olivas made B. Abie Olivas following ruling: granted also The trial court that I indicate for the record would pro challenge for cause to prosecutor’s deter- jury, juror, right a has the or During the ini spective juror Abie Olivas. is, and I’m mitigating mine what a fact interview, prosecutor tial in-chambers any going prejudge mitigating not challenge to Olivas. any did not offer particular Mr. fact. In this case Olivas during that initial ses questioned When juror in has indicated that he cannot be a sion, he told the court that Olivas this he can’t balance miti- case because question on right “about in the middle” facts; gating against aggravating facts capital punishment. stated that Olivas was, any if that statement his there’s he felt scheme to be reason the Colorado at all that the defendant this indication impose not a sen able and that he would any any case used amount of alcohol at every He also told the tence of life case. time, he then be unable to that would have to hear the evi court that he would aggravating against miti- balance factors up his dence he made mind before mere gating factors. The fact there question Davis deserved die. of whether any fact would be evidence that quarrel Although prosecutor took no time, any any alcohol was used at that expressed in Olivas this with the views that make his deci- factor alone would interview, subsequent during the initial making sion. or a decision to whether prospective jury general dire of the voir case, accept a juror not to this that intoxication panel, learned Olivas not, or Court has determine whether issue the case told the be an would fact, juror capable willing is think could vote court he did not he to follow the law. The as to the penalty under circum law for such the death juror penalty death is must be Olivas stated: stances. weigh willing aggravating DUI, see, factors caught they I for beyond against found therapy, reasonable doubt me to weeks of sentenced factors, mitigating whether and 26 weeks was to determine was education weeks I appropri- and learned lot about alco- therapy, this case it would be hol, give I I don’t think that could death; ate for either life or that Mr. I a sick- think it’s because Olivas has if evi- indicated there I a sick I don’t think could send ness alcohol, concerning dence he could chair, gas electric man to the chamber function, perform and it for has him reason Court excused Olivas revealed p. 1500] [v. experiences with alcohol con- cause. court that 23, pp. The defendant ar posed the following question [v. 1515-1516] gues Bradbury: granting the trial court’s

prosecutor’s challenge motion Well, to for cause Bradbury, you Mr. gone have down improper. was points He out this line you that under where ag- found the factors, Ohio, 586, 604, gravating they outweigh Lockett v. 438 U.S. the mit- S.Ct. factors; igating 2954, 2964, means that under 57 L.Ed.2d 973 the following you the law that would have to is allowed to mitigating consider all circum find the death penalty. you Are saying Further, stances of the crime. the defen that under circumstances, those argues, juror dant determines the though even logically that would be the weight he or she appropriate deems conclusion, you could not follow it? mitigating evidence. Eddings v. Okla 17, p. homa, 104, 115, 102 [v. 232] (1982). Although prosecutor ad question vised the court that the did not However, although juror may proper- accurately Colorado, state the law of ly mitigating consider all relevant evidence persisted juror and the responded may weight give determine what to that he would not return a verdict of death evidence, juror such required is still even if he aggravating found that factors requirements follow the of our statute and outweighed mitigating factors. The defen weigh the aggravating circumstances correctly points dant out that under Colora against mitigating circumstances. For law, finding do mitigating factors prospective juror state that in case are outweigh aggravating insufficient to involving alcohol, the use of no matter how require factors does to return little, juror will not return a death a sentence of death if does not sentence, juror is to admit that such would believe that death is appropriate sen not follow the law of this state. The exclu- However, although tence. the court's proper sion of Olivas was under the Witt hypothetical question accurately did not standard: Olivas’ statements indicated that convey Colorado, the law of we believe it his views on “substantially alcohol would appropriate was an device ascertaining impair performance of his duties as a juror inalterably whether the opposed

juror in accordance with his instruction and If, capital punishment. Bradbury as legislature his oath.” recog- Our has not indicated, unwilling he was to return a alcohol, nized the use of no matter how sentence of death absolutely when the law inconsequential, an mitigating as absolute so, required him to do prop then the lesser forbidding imposition factor of a death osition, unwilling that he was to return a Thus, granting sentence. the court’s sentence, where under the law it was challenge proper. for cause was appropriate required, obviously but true. The questioning in-chambers of a equated member of the venire is not to be Bradbury C. Michael charging jury. with the purpose argues The defendant that the trial court of the voir dire was not to instruct the improperly excluded Bradbury Michael be- jurors on the law of the state but to deter cause the exclusion was based on an im- juror mine whether impartially could proper statement of the law. After both and conscientiously apply the law as laid prosecutor and the defense counsel elic- by out the court in its instructions. Be Bradbury equivocal ited from somewhat prospective juror Bradbury cause indicated ambiguous questions answers to de- law, that he could not follow his exclu signed Bradbury to determine whether proper sion for cause was under the Witt opposed, principle, capital punishment, standard.45 Bradbury’s responses exchanges In addition Bradbury dis- occurred between and the above, Bradbury cussed several times indicated prosecutor: that he would be unable to render a verdict of (by prosecutor) example, following death in this case. For Drake, at trial.” P.2d Use adduced

X. Prosecutor’s (4th Dixon, 891 Peremptory Challenges n. 1. In Brown v. F.2d Cir.1989), Ap- the Fourth Circuit Court argues that the use The defendant reversing peals, in the decision of dis- by peremptory six chal prosecutor of court, rejected argument same of- trict expressed lenges jurors remove who had case. fered the defendant the death de reservations about holding may perempto- that a state use its right nied to be tried the defendant ry challenges purge of veniremen guaranteed impartial *46 for cause under Wither- not excludable to Fourteenth Amendments Sixth and spoon, the stated: Article United States Constitution II, Con 16 and 25 of Colorado Sections reading compels of alone our Our Batson that be The defendant reasons stitution. holding, for we the case does not believe prosecutor may cause under a not Witt authorize, suggest, may not even cause, challenge jurors on the basis of for that courts must scrutinize ev- principle punish disagreement capital their with challenge ery peremptory to ensure that ment, objec jurors prospective those whose any right of the it does not tread on prevent capital punishment tions to do many states in so defendant. Batson substantially performance impair of peremptory it chal- words that views the jurors in with their duties as accordance as, instance, lenge truly in all but one oaths, pros their and their instructions unwilling peremptory.... are to We challenges may peremptory ecution not use conceptual leap make the momentous persons. similarly such We re to exclude us, leap urges on a [the defendant] ject argument. defendant's of practical would mean elimination Although prosecutor may not use challenge peremptory as such. Nei- peremptory challenges systematically to binding any ther nor other Batson group, a distinct racial exclude members of precedent supplies a writ for instructive Kentucky, Batson v. every peremptory of chal- conversion L.Ed.2d 69 lenge challenge subject judicial to a holding Court has not extended Bat- approval, and no confidence we have to include who reserva- son those harbor protect such a conversion would better Also, capital punishment. tions about principles system justice our seeks does not have stated “the Constitution current, than does the advance precise require jury composed a a bal- arrangement. historic pre- philosophical jurors ance of various Brown, F.2d at 497-498. dispositions, only jury composed but agree inappropri it is ability We indicate jurors individual who prosecutor for use may peremptory ate any preconceptions they have set aside who, jurors although challenges the facts to exclude and decide case based on decision, making go your Q. would re- further would be like consid- So if were gardless case— positively myself, what evidence is in this know eration. I almost I any you you never, mean, evidence—and haven’t heard you would know—I the consid- imposing a death sen- had a choice between time, be eration would there all it would sentence, guess life what I I'm tence or a hearing there, all have to be but that’s it would be is a you would not consider a consideration. death sentence? you you Q. So could think about it but could know, couldn't, you there would be—I A. I never vote in favor of a death verdict? that. couldn't do No, that, something A. I could never do like never. Q. is, Q. guess what based on I I need know you talking And understand what we're against your philosophical moral and beliefs precisely that? about fairly penalty, would be able to be A. Yes. situation, you where involved in that kind 224-26). Thus, (v. fully pp. sup- the record question of death would have to consider ports juror prospective the court’s exclusion punishment? appropriate as an Bradbury. it, but to consider I A. I would able well, strongly you that’s all don't think know— they they prisonment. hearing can follow the shall have indicated be con- law, expressed judge reservations about ducted the trial before the trial ability faithfully practicable. their to do so or who have as soon as Alternate they disagree judg- indicated that jurors shall not be excused from the case people acting through ment of the their prior guilt to submission of the issue of legislature that certain crimes are deserv- sepa- to the trial and shall remain penalty.46 rately sequestered ultimate until a verdict is en- jury. tered trial If the verdict of

XI. Right to Waive the trial Defendant’s is that the defendant is Jury Trial guilty of a class 1 felony, the alternate jurors jurors shall sit as alternate on the guilt phase Prior to both the of the trial If, punishment. issue of reason sentencing phase, and the the defendant court, satisfactory to the any member or sought right trial by waive his to a members of the trial are excused and instead to have his case tried to the participation from hear- refused, holding court. The trial court *47 ing, judge replace trial shall such required such waiver the consent of the juror jurors juror with an alternate or prosecutor and that because it was not jurors. jury a if trial was waived or here, forthcoming the defendant could not If pleaded guilty, hearing the defendant sentencing by jury. trial and waive the judge. shall be conducted before the trial argues The defendant that the court’s re- by jury requires fusal to waive the trial added.) (Emphasis The defendant contends sentence be vacated and that the plain language that under the sec- this case be remanded to the trial court for tion, legislature contemplated a waiver entry imprisonment.47 of a sentence of life right jury capital to a trial in a case. properly We hold that the trial court condi- Further, provision because there exists no jury tioned defendant’s waiver of a trial conditioning right of waiver on obtain- prosecution. on the consent of the prosecution, the consent of the right unconditionally must lie with the de- arguing right In that his to waive acknowledges fendant. The defendant jury capital a trial in a case is uncondition 18-1-406(2), (1986), section 8B C.R.S. al, points the defendant first to the lan general provision governing the waiver of 16-ll-103(l)(a), guage of section 8A C.R.S. trials, suggests jury on its face that waiver (1986). provides: That section capital may permissible not be in a trial. Imposition 1 of sentence class felo- provides part: That section in relevant appellate (l)(a) Upon review. con- nies— person Except felonies, as to 1 class guilt viction of of a defendant of a class felony may a accused of misdemeanor felony, 1 the trial court shall conduct a by jury by express waive a trial written separate sentencing hearing to determine instrument filed of record or an- the defendant sen- whether should be open appearing nouncement in imprisonment, tenced to death or life un- record. age less the defendant was under the added.) years (Emphasis argues, eighteen at the time of the commis- The defendant offense, however, 16-ll-103(l)(a), in which case the that section be- sion enacted, subsequently prevails im- defendant shall be sentenced to life cause was prosecutor only jury only on the 46. We note that the used 10 of overzealous effort to include Further, challenges. peremptory persons capital punishment his 12 at least supported who jurors two served who indicated substantial re- without reservation. impose penalty. ju- luctance to the death One "apprehensions” he had ror who served stated objec- purports 47. The defendant to waive his capital punishment, argued against and had by jury during guilt phase. tion to the trial discussions, (v. during against it informal error in the trial court's Because we find no 900-01) juror opined pp. Another who served a refusal court, to allow the defendant trial to capital only that punishment, “extreme cases" should warrant effect of the we need not determine the (v. 445) p. prosecutor Thus the objection. defendant’s waiver of the engaged be said to have in an here cannot Also, 18-1-406(2). recognized right jury to waive a trial under a section Peo over constitution, Cisneros, a closer exami- (Colo.Ct.App.1986), 720 P.2d under state ple v. subsequent denied, nation of that case and cases rt. ce (1986), In itself the according to rebuts that notion. Munsell opin- defendant, nothing 18-1-406(2) court’s statement is ineffec section being ion should construed as inconsist- a right to waive deny tive to him a right ent with the to waive a denial legislature does not have trial because the questiona- capital trial in a case makes power a defendant from waiv to forbid proposition ble Munsell estab- by jury. Before we consider ing a trial right lished a to waive state constitutional arguments on the effect of defendant’s by jury.48 a trial provisions, necessary it is to review these prior in this area. our cases People, In Graham v. 134 Colo. (1956), 302 P.2d we reaffirmed our People,

In Colo. Munsell v. recognition of statement of Munsell that sponte raised P.2d 615 we sua right a trial did not to waive right a defendant has a issue of whether rejected capital case. We extend a plea guilty and waive trial enter argument that he could waive by jury. finding that a defendant does case, capital holding trial in a that: right, considered the lan- have such a II guage of Article state Section mandatory murder trial for [I]n providing that an accused shall constitution provisions require of the statute “speedy public to a trial right murder, empowered fix the degree ...,” impartial jury *48 of an Section if of determined to be murder right of providing that that Article to degree, first to fix the be “[t]he by remain inviolate crimi- jury defendant, trial shall and the by suffered trial stated in nal We Munsell that: impose cases....” judge duty no other than to a has sentence in accordance with verdict. provisions, we Under our constitutional may waive his hold that a defendant cases, In we con- subsequent where right by jury, plea on a of to a trial scope right sidered the to waive a and, court, by guilty tried if be by legislature jury, trial we stated that may valid guilty, found a sentence only require- may “interpose reasonable pronounced thereon. upon right by to trial ments waive Colo, 430, Munsell, at Brisbin, 428, 122 at 222 P.2d 620. jury.” People v. 175 Colo. However, recognized exception 432, 63, (1971) (court to upholds we 488 65 P.2d stating that: holding, prosecutorial our requiring statute consent as question jury condition of of trial on waiver provi- cognizant statutory are of a We However, sanity). we never have found jury impose a requires sion which sen- particular right that a restriction on the cases, degree murder tence first by jury a waive trial was unreasonable. nothing construed herein should be Further, Graham, after all of our cases in a countenancing jury the waiver of interpretation this area involved stat- charge is where the murder first utes, recog- unlike in Munsell where we degree. right by jury nized the to waive a trial Colo, 430, Munsell, at 122 222 P.2d the absence of a statute. Thus, although admittedly there is lan- supporting People, In guage the Munsell decision Garcia v. 200 Colo. 615 argument P.2d 698 we found that section 18- the defendant’s Munsell (1947); People, language P.2d 272 104 48. We observe that the in our death Wharton v. Colo. statute, sentencing waiver, mentioning possibility (1939); Fleagle People, v. 90 P.2d 615 87 language ap- in 1974. (1930); was added This People, Colo. P. 1078 Demato v. 289 many contemplated change parently from dec- Thus, (1910). 49 Colo. 111 P. 703 Colora- procedure jury where the was the sole ades requiring practice jury do's to determine permitted. sentencer and waiver See appropriate capital case sentence in a P.2d People, 155 Colo. Jones longstanding lightly and is not to be discarded. (1964); People, Gallegos v. 116 Colo. 1-406(2), allowing a defendant to appeals waive court of in Cisneros was incorrect by “[ejxcept trial as to suggest class felo- legislature could not nies,” 23(a)(5), prevailed over Crim.P. which forbid a waiving defendant from then conditioned the waiver of a trial capital trial in a case. Munsell and Gra- prosecutor. on consent of the We clearly ham legislature established that the legislature found that the to ex- intended prohibition; could effect such a there is prosecutorial require- clude the consent nothing in subsequent our retreating cases 18-1-406(2) ment from section and that be- holding. from this Our cases demonstrate “right” cause the to waive a trial was a broad legislature deference to the substantive, pros- requiring statute not respect to the waiver right to a trial prevailed ecutorial consent the court- over by jury. right We conclude that recog- Colo, adopted Garcia, rule.49 right guaranteed nized Munsell is not a 615 P.2d at 700. constitution, the state but rather must right be characterized as a common law Cisneros, People In P.2d subject regulation abrogation by (Colo.Ct.App.1986), appeals, the court of re- Munsell, legislature. properly construed, lying heavily Garcia, held that merely proposition stands for the “right” applied to waive a trial to all nothing there is inconsistent in our consti- felonies, despite specific wording tution with the by jury, waiver of a trial 18-1-406(2), excluding section from that legislative and in the absence action provisions section’s waiver class 1 felonies. denying right, such it exists under the com- “[sjuch appeals court of found that mon princi- law of this state.50 With these prohibition does not fall within the ambit of ples guide, as our we now examine the Assembly’s power impose the General statutes before us in this case. requirements upon right reasonable Cisneros, by jury.” waive a trial 720 P.2d 18-1-406(2), Section under (emphasis original). at 985 Garcia, grants court’s decision in the de unqualified right fendant the waive Court, v. District 731 P.2d 720 However, by jury. trial express its (Colo.1987), questioned holding *49 terms, apply that section does not to class 1 appeals the court of in Cisneros that the Thus, felonies. the section not apply does right to waive a trial cannot be denied 16-ll-103(l)(a), in this case. Section respect felonies, 1 with to class but we hand, appears contemplate the other to unnecessary found it to decide whether possibility capital jury might that a properly that case was decided because However, language waived. of the sec suggest right “Cisneros did not that the to tion itself is insufficient to establish such a by jury waive a trial cannot be conditioned right certainly purport does not to court, upon the prosecu- consent of the scope right. define the There are no tion, Court, or both.” v. District statutory provisions applicable. other Thus, 731 P.2d at 722. we declined to upheld overrule provision Brisbin In the absence of relevant statu 16-8-105(2) requiring of section the con- tory provisions, guided by this court is prosecutor sent of the to waive a trial pronounced by common law of the state as jury in where a eases enters previous decisions of this court. plea guilty by of not reason of insanity. 2-4-211, (1980). IB C.R.S. As stated § above, area, Our review of the cases under this court’s decision in Mun- as above, sell, right discussed convinces us that a defendant has a common law right majority 49. We noted in Garcia that there is no rule at common law to odds waive a trial under the federal denying right by jury. constitution. to waive a trial See Garcia, 699, citing Singer 615 P.2d at v. United right generally discussion of common law on States, 380 U.S. States, Singer waive trial in v. United 380 (1965). 24, 27-37, 783, 786-91, 13 L.Ed.2d (1965). 630 recognition 50. We note that the of a common right by jury apparently law to waive a trial 212 employed shall be by jury. under to be review waive a trial Because court present provided supreme exists no su rule.

our statutes there provision, perseding statutory that common (b) im- A shall not be sentence of death right first-degree law extends to felonies. su- pursuant this section if the posed Although the question not consider did the sen- preme court determines that Munsell, we now hold exercise imposed under influence of tence was right of that law is conditioned common arbi- prejudice any other passion obtaining upon the consent present- trary factor or that the evidence Durham, prosecution. v. See State support finding of statu- ed does (1974); 523 ex Ariz. P.2d 47 State tory aggravating circumstances. (Fla. Baker, rel. v. 339 So.2d 271 Gerstein 16-ll-103(8)(b) Further, provides: section Kilburn, Dist.Ct.App.1976); State (b) imposed If death sentence (1975); Minn. 231 N.W.2d 61 Short pursuant provi- upon a defendant State, (Tex.Crim.App.1974), 511 S.W.2d imposition of this section and the sions denied, cert. upon death sentence such defendant such Annotation, (1975); L.Ed.2d 402 see also unconstitutional, said is held invalid or Accused, Tri Right Criminal State Of the trial defendant shall be returned to al, Insist, To Over Prosecutor’s Or to life and shall then be sentenced By Objection, Court’s On Trial Court imprisonment. (1985); Jury, Without A.L.R.4th 4(e) Appellate provides: Rule also Colorado 15-1.2(a), ABA and Standard Standards Appeals of Cases Which a Sentence (2d Supp.). Criminal Justice ed. (1) Imposed. Has Avail- of Death Been Here, prosecution declined because ability of Review. Whenever a sentence attempted waiver of consent to defendant’s imposed, Supreme death is Court trial, right properly the court to a propriety review the the sen- shall denied motion. the defendant’s tence, having regard to the nature of offense, and record of the the character Statutory XII. Court’s Review offender, interest, public 16-ll-103(7)(a) and Under section im- manner which the sentence was court, (b) (1986 Supp.), this in addi & 1989 accu- posed, including sufficiency appellate of all tion the normal review racy upon of the information errors, alleged required conduct was based. pursuant further review to that section. If the Court determines (a) (b) provide: Subsections imposed the in- the sentence was under (a) im- Whenever sentence of death is *50 passion, prejudice, any fluence of oth- posed person pursuant the upon a factor, that, arbitrary as a matter er section, provisions judgment the of law, by not supported the sentence is of of and sentence of death shall conviction evidence, shall the a sentence of death by subject supreme be to review the imposed. thereafter be supreme court. The court shall review (2) Procedure and Conditions. sentence, propriety having the of that (I) court, impo- The trial at the time of offense, regard to the nature the death, of a sentence of shall enter sition offender, the character and record of the staying judg- execution the an order of interest, public and the manner in which of ment and sentence until further order imposed, including the sentence the Court, Supreme and direct the shall sufficiency accuracy of the informa- to the clerk of trial court mail tion on which was based. Review of Court, im- Supreme days seven of within conviction, judgment of sentence sentence, copy judg- position death, propriety of a sentence ment, sentence, and mittimus. be matter for the of death shall su- (II) record, The as in subsec- preme exclusively. by described Such review Rule, (3) prepared of this shall be supreme priority court shall tion cases, procedures any form as other record to be over all other the same jury, verdict presented Supreme Court and the defendant be by gas, shall be transmitted the clerk of sentenced to die from lethal is af- forty days imposition trial court within firmed. This case is remanded to the dis- sentence, time as or such additional for the trict court to set date execution of may by Supreme Court. be allowed the sentence.

(Ill) Except provided by as subsection (e) Rule, Appellate of this Colorado QUINN, C.J., dissents; LOHR and governing appeals criminal shall Rules KIRSHBAUM, JJ., join the dissent in apply appellate review of sentences. part. (3) Appeal. appeals un- Record on LOHR, J., dissents. (e) Rule, der of this the fol- subsection lowing items shall included be KIRSHBAUM, J., dissents; LOHR, J., appeal: record on joins in the dissent. (I) upon The indictment or information based; the sentence is a verbatim QUINN dissenting. Chief Justice transcript sentencing pro- of the entire shocking repulsive killing of Vir- ceeding; given by instructions ginia May creates an instinctive demand by parties trial court tendered system for ultimate retribution. Our sentencing proceeding; all exhibits law, however, permit justice does not to be during or offered the trial and admitted proportion rationed inverse to the de- sentencing proceeding; at the all verdict Indeed, pravity precisely of the crime. it is jury; forms submitted to the and the urge of the distinctive to exact because sentence, judgment, and mittimus. ultimate retribution that there devolves (II) portions other of the record Such upon correspondingly greater this court 10(b) may designated under C.A.R. duty to itself that the means em- assure may or as be ordered imposing ployed by the state in the death Court. comport constitutional norms sentence Our extensive review of the record calculated to insure fundamental fairness jury proper- this case convinces us that the capital sentencing hearing. in a ly appropri- determined that death was the qualitatively A death sentence is differ- above, pros- penalty. ate As discussed “Death, in ent from other sentence. beyond proved ecution a reasonable doubt finality, imprison- more from life its differs statutory aggrava- the existence of five 100-year prison term differs ment than a prior criminal tors.51 The defendant’s only year or Because from one of two. produced record and the other evidence difference, is a qualitative there trial demonstrates that defendant’s charac- corresponding difference in the need for presented ter was such that he a continu- reliability in the determination that death is society. mitigators present- risk punishment specific in a appropriate properly ed the defendant were found Carolina, 428 case.” v. North Woodson outweigh aggravators insufficient 2978, 2991, Further, prosecution. presented *51 (1976) opinion). This (plurality L.Ed.2d 944 nothing in the record to find that there is ground- requirement reliability, which is of imposed un- suggest that the sentence was doctrine, a in constitutional mandates passion prejudice or ed der the influence of or any scrutiny in of “careful the review arbitrary other factor. claim of error.” Zant v. Ste- colorable XIII. 2733, 862, 885, 103 S.Ct. phens, 462 U.S. (1983). 2747, Procedures 77 L.Ed.2d 235 judgment of the district court find- The muster in might pass constitutional guilty is affirmed. The the defendant above, court, Further, jury have found that would our review of the trial as discussed beyond proved beyond aggravator us conclude a rea- a rea- the record leads had been such heinous, had the cruel or sonable doubt that depraved sonable doubt. aggravator properly been narrowed might or A. proceedings, criminal satis- other error standard on fy even the harmless A sentence of death cannot be carried review, inadequate when the may be well imposed out if the the sentence of sanction imposes state ultimate by excluding prospective jurors was chosen death. gen- simply they for cause because voiced reviewing a death appellate An objections eral to the death ex- responsibili- nondelegable sentence has the pressed degree some of reluc- conscientious ty assuring itself decision impose Bishop, tance to it. Maxwell v. to live deserves or die is person whether a 262, 90 26 L.Ed.2d 221 U.S. S.Ct. tipped are in favor not made scales that on curiam). (1970) (per prohibition The procedures is on of death rather based but against improperly excusing juror a for arbitrary and that minimize the risk of capital sentencing proceeding cause a is certainty capricious and enhance action grounded right in the Amendment Sixth reliability decision. sentencer’s Witt, Wainwright trial. fair in this demonstrates a The record case (1985). S.Ct. L.Ed.2d aggre- of errors which combination determining standard for whether a risk gate unacceptable create juror prospective should be excused for imposed in jury’s sentence was viola- death capi- on juror’s because of the views cause norms. These proper tion of constitutional those punishment tal is whether views encompass compo- such fundamental errors impair prevent substantially would legal process impermis- nents of as our juror performing his or her duties in jurors disqualification prospective sible accordance with the on the law instructions jury panel, faulty from the several juror’s Id. at and the oath. irreparably undermined instructions that Texas, 850; Adams v. verdict, and an reliability (1980). unconstitutionally vague aggravating juror’s preconceived A prospective belief as to the for its consid- factor submitted punishment propriety capital does weighing aggravating factors eration in provide not alone a sufficient basis dis- against mitigating factors. Instead of Rather, juror qualify the for cause. coming effect grips with the cumulative controlling juror standard is whether the these on the fairness of errors essential to set his or beliefs unable aside her capital sentencing hearing, the court em- upon render a verdict based the evidence cramped analysis array of an ploys adduced trial and court’s instructions procedural substantive and deficiencies and Drake, on the law. 748 P.2d principles reduces constitutional basic (Colo.1988). purpose 1243-44 accordingly I dis- ineffectual formalities. selection, short, empanel jurors sent. impartially who will determine the facts apply conscientiously the law to those I. facts, pre- jurors and not to seek are who disposed to death. return verdict of A of the record shows that review improperly jurors excused trial court two jury panel

from the because of their views B. Although capital punishment. I cannot juror improper improperly The first excused say that exclusion of these jurors programmed the ulti- cause was Thelma Wolfe. The trial court prospective because, Ms. mately selected to return death sen- excused Wolfe court’s tence, view, uncertainty I satisfied that the trial court she manifested some am *52 not make a permissible exceeded the bounds of consti- whether she could could excusing impose jurors penalty these decision to the death this tutional discretion initially stated that she did for cause. case.1 Wolfe case, already opinion 1. The trial court also ruled that Ms. Wolfe had formed an on the but it approve penalty prob- again, responded of the death tioned he that he didn’t it, ably know, would not vote for but later ac- point responded at one that he knowledged juror if that sworn as a she could not penalty. vote for death .the personal would be able to set aside her prosecutor challenged When the Bradbury capital punishment. views on cause, The follow- posed the trial court this addi- ing colloquy so: ability reflects her to do question: tional Q counsel): (By defense theOn Q: Well, Bradbury, Mr. you gone oath, though you under I know even you down line this where have found the penalty, you don’t like the death factors, aggravating they outweigh the penalty, you don’t believe in the death if factors; mitigating that means that un- you were under oath and knew the law in you der the law that would have to find you Colorado was that had to consider penalty. you saying the death Are that penalty, the death and if it appro- were circumstances, under those that even priate verdict, to return a death would though logically that would be the con- you follow that oath? clusion, you that would not follow it? to,

A: I suppose. would have I that, Bradbury’s response Mr. indicated Q: You wouldn’t like it? posed by based on the circumstances court, No, certainly A: I he would be unable to vote for wouldn’t. However, penalty. death question Q: you But would do it? court, asked majority con- to, A: I yes, would have if I took the cedes, contained an inaccurate statement of oath. the law. It is not correct that under Colo- interrogation clearly of Wolfe shows finding aggravating rado law a factors general objections that she voiced outweigh mitigating factors mandates a penalty death and had some reluctance to Rather, death sentence. it is incumbent consider it but that nonetheless she would upon juror, being beyond after convinced juror be able to abide her oath as a mitigating a reasonable doubt that factors to render a verdict in accordance with the outweigh proven aggravating do not law and the evidence. factors, to further determine whether appropriate death is the sentence in the C. particular case under consideration. Peo- juror improperly The other excused for Tenneson, (Colo.1990). ple v. 788 P.2d 786 Bradbury. initially

cause was Michael He Notwithstanding the inaccurate state- stated he problems had some with the ment of the law contained in the trial penalty, suggested he but never question, majority court’s nonetheless he would be unable to vote for it under circumstances, question appropri- concludes that the was majority and all as the determining prospec- suggest. ate for whether the contrary, seems to On the juror “inalterably opposed capi- tive prospective juror acknowledged that he punishment.” Maj. op. tal impartially could determine whether the at 207. Brad- answer, beyond bury’s attorney proven district had a rea- which caused the trial court presence cause, aggravating only sonable doubt the to excuse him for indicated factors, mitigating penalty could decide whether he would not for the death vote existed, solely simple weighing factors and could follow his oath in of miti- based determining gators aggravators. Bradbury’s whether certain facts existed voir examination, might penalty appro- totality, render the death dire considered in its questioned priate. When on whether he indicates that he viewed his task with the penalty, Bradbury gravity could vote for the death utmost seriousness and and that he point responded at one it would de- could consider the death but most ques- likely for it. In the absence pend on the circumstances. When would not vote clearly during this alternative shown her voir dire exami- excuse Ms. Wolfe for cause on nation that she had confused the instant case basis relied on the trial court. with another. There thus was no basis at all to *53 216 charge as juror than could have understood the convincing demonstration

of a more 376, id. Bradbury’s meaning,” 108 at 1866 present categorical here of S.Ct. Franklin, v. capital Francis opposition punishment (quoting and his 471 U.S. to 1972, 307, 315-16, 1965, inability penalty as a 85 to consider the death whatever, (1985)), I case 344 the Court stated: possible penalty L.Ed.2d that, considering the dire would voir hold findings respect guilt on crimi- With juror entirety, this in its examination consistently has charges, Court nal disqualification Bradbury trial court’s jury’s verdict followed rule premature. Although Bradbury ex- supported set if it could must be aside be objection to the death pressed some another, and ground one not on on but it, I do impose not view and reluctance reviewing court was uncertain demonstrating as his total examination by grounds upon the two relied capital opposition an irrevocable See, such reaching jury the verdict. punishment prevented as would States, v. e.g., Yates United 354 U.S. substantially impaired perform- him from 1064, 298, 312, 1073, 77 1 L.Ed.2d S.Ct. juror returning from duty (1957); Stromberg California, 1356 according the law a verdict 535, 359, 367-368, 51 283 U.S. S.Ct. in a evidence and manner consistent (1931). reviewing In death 75 L.Ed. juror. his oath as a sentences, even has demanded Court certainty that conclu- greater jury’s view, therefore, my In the trial court’s See, grounds. proper rested sions on rulings excluding for cause Ms. Wolfe Ohio, e.g., Lockett v. U.S. Bradbury and Mr. violated (“[T]he at 2965 risk that the death S.Ct. jury right impartial on the to a fair imposed spite of penalty will death, issue of life or with the result may call for a less severe factors which empan- imposed the death sentence unacceptable incompa- penalty ... comport eled did not with constitution- Eighth tible with commands Maxwell, al norms. 398 U.S. Amendments”); Andres and Fourteenth States, v. United 333 U.S. [68 (1948) L.Ed. S.Ct. 1055] II. (“That might men derive reasonable gave several instruc- trial meaning given from the instructions oth- that, tions when in the considered context proper meaning er than § of other deficiencies authorizing quali- statute [federal trial, substantially phase detracted adding guilty “with- fy verdict thereto constitutionally required from the reliabili- punishment”] In capital probable. out ty certainty to a valid death essential cases those death doubts such as verdict. in fa- presented here should be resolved unless been understood ed consideration of sentence States verdict Mills v. all because twelve form Maryland, agreed jurors any mitigating the jury reasonably Court A. jury to preclude vacated instructions and on the exist- could have the Unit- evidence ing. have rested its verdict Stephens, ground, we stantial vor of (1983). S.Ct. ^[*] 2733, 2746-47, 77 Unless we can possibility n must accused”); accord, n remand n rule 884-885 [103 L.Ed.2d 235] out the sub- n “improper” resentenc- Zant ^[*] may particular mitigating conclude that there is a substantial ence of a circum- We noting upon ques- probability jurors, stance. After that the critical that reasonable Maryland receiving judge’s instructions tion is not what Court of case, complete the Appeals meaning attempting and in declared “the instructed, charge be, may have but rather what a reasonable verdict form as well *54 quirement reliability thought they precluded were from con- of for the determina- sidering any mitigating appropriate penalty unless evidence tion that death jurors agreed case, all 12 on the existence of a particular such as that doubt particular such circumstance. Under our present here must be resolved in favor of — cases, permitted the sentencer must be -, E.g., McKoy, the accused. U.S. mitigating to consider all evidence. The 1227; Mills, 110 S.Ct. 486 U.S. single juror possibility that a could block S.Ct. 1860. consideration, consequently

such re- impose penal- quire jury B. ty, is one we dare risk. high reliability of and cer- standard 376-77, 384, 486 U.S. at 108 S.Ct. at 1866- tainty applicable capital sentencing to a (footnotes omitted); accord, hearing jury also mandates that not be — Carolina, -, McKoy v. North responsibility for led to believe (1990). L.Ed.2d determining appropriateness ultimate Here, jury, the trial court instructed the of a death sentence rests elsewhere. In part, pertinent you that “if ... Mississippi, 472 U.S. Caldwell prose- findings made unanimous that the 86 L.Ed.2d Unit- beyond proven cution has a reasonable ed vacated a death States Court aggravating factors doubt that one or more prosecutor’s sentence because the summa- exist, mitigating factors exist and that no responsibili- tion led the to believe that ex- mitigating or that a factor factors ty determining appropriateness for ists, you must now decide whether the the death sentence rested not with the prosecution proven has factors in appellate but with an court which would aggravation outweigh any factors in miti- later review the case. The Court stated: added). gation.” (Emphasis majority always capi- premised This Court has its rejects argument the defendant’s that this assump- punishment tal decisions on (Instruction 5) reasonably No. instruction capital sentencing jury recog- tion that interpreted by jury as could have been proceeds gravity nizes the of its task and requiring unanimity mitigating on a factor appropriate awareness of its with the because, in- according majority, “truly responsibility.” In this awesome if struction further informed the case, sought to minimize the State jurors “one or more of the believe that a jury’s responsibility for deter- sense outweigh mitigating factor or factors appropriateness of death. mining the ex- aggravating factor or factors found to say Because we cannot that this effort ist, a verdict of then the should enter decision, had no effect on Al- imprisonment.” Maj. op. life at 194. does not meet the standard that decision though portion this latter of the instruction reliability Eighth Amendment negating any interpreted could re- be requires. The sentence of death must quirement unanimity mitigating on a therefore be vacated. factor, reasonably can also the instruction Id. at or, internally more read as inconsistent be particular significance no that a It is of negating unanimity re- importantly, as requirement infirmity the constitutional only “outweighing” quirement as to reliability originates in a instruction requirement but not as to the existence Caldwell, than, prosecu- in a rather as in mitigating factor. If read particular Mills, tor’s summation. See way, requirement reliability either significant 1866. What is 108 S.Ct. at to a valid death verdict would essential jury in that leaves the is that an instruction ju- irreparably impaired because reasonable uncertainty or confusion about a state of they might have believed that rors well the ultimate their verdict on the effect of considering any miti- precluded from were death is question imprisonment life jurors all twelve gating factor unless reliability required with the incompatible particular existence of the agreed on the Drake, E.g., high a valid death sentence. mitigating light factor. re- *55 (death binding the sentence reversed final and decisions on ultimate 748 P.2d jury clearly did not and imprisonment where instructions death.2 issue of life or unambiguously jury of their role apprise a sentence “as the sole of whether arbiter C. upon imposed the defen-

of death should be dant”); Durre, 690 P.2d 165 compounded, in errors were The above (death (Colo.1984) sentence reversed where view, on my by the court’s instruction the uncertainty some jury verdict manifested proof appli- “reasonable doubt” standard unanimously had jurors to whether as all jury’s weighing mitigating cable to the and in- agreed to death sentence where aggravating against proven factors aggravating mitigating on and structions that jury instructed factors. adequately not inform circumstances did prosecution prove beyond must a reason- ques- on jury of effect of verdict ultimate mitigating factor or able doubt that “[n]o death). imprisonment life or tion of outweigh aggravating factor or factors case, trial court In this submitted beyond to exist a reasonable factors found purposes that “for instruction which stated (Instruc- Although instruction doubt.” this sentencing” in the the crimes murder 2) tion No. was consistent with court’s degree felony first after deliberation and Tenneson, in People recent decision merge, “the murder that defendant would my I P.2d continue to adhere dis- counts,” a life receive sentence these senting view Tenneson that formula- impose that whether to decision “[t]he “proof beyond tion of the reasonable life sentences is concurrent consecutive mitigating doubt” standard terms of majority upon the holds that court.” outweighing aggravating (In- factors not the obvious effect of this instruction 10) jurors reliability No. essential struction was to inform the factors vitiates to a assume, “they starting should capital sentencing hearing.3 penalty the point, that the least severe permits jury to con- Such formulation defendant was to receive was two life sen- imposition sider a death sentence Maj. op. tences.” at 196. From that un- notwithstanding jury fact that finds premise majority supported concludes evenly mitigating factors are bal- possibly “could instruction any proven aggravating anced with have detracted from the clear under- predicated A factors. death sentence on a standing jury despite life those evidentiary equipoise mitigation state of sentences, ultimately if determined aggravation “is irreconcilable with the sanction, appropriate that death heightened reliability and concomitant cer- put would be death.” then constitutionally required for a valid tainty majority’s Id. at 196. The conclusion flies Tenneson, P.2d at death verdict.” unambiguous face language C.J., (Quinn, dissenting). The By plain of the instruction itself. its Jersey cogently and succinct- Court of New terms, potential the instruction created the ly flaw the articulated fundamental confusion on whether the advisory only or under here: verdicts were indeed were instruction consideration case, (Instruction 10) Although given in this 2. This instruction No. was also Instruction No. Tenneson, giv- in direct conflict with another instruction which comports with other instructions jurors they court, told must "decide whether the namely No. 5 en Instructions defendant should be sentenced to death or life 7, directing weigh mitigating No. they imprisonment” and that "must assume against aggravating did factors not ex- factors [they] of death will be carried out if pressly require jury’s determination re- inconsistency impose it.” The between this in- aggravators garding mitigators outweighing only struction the other instruction served beyond doubt. These reasonable latter highlight uncertainty the confusion and comport do not with Tenneson instructions respect to whether it was the the court only to the constitutional infirmities exist- add responsibility which had ultimate for deter- penalty phase. at the mining appropriateness of the sentence in this case. speak We here about the vating ultimate value circumstances exist and “there are judgment, question the ultimate of life or mitigating no sufficiently circumstances death, for while the formulation is in leniency” substantial to call for violates doubt,” “beyond terms of a reasonable Eighth by creating presump Amendment appropriately applicable and therefore unduly limiting tion of death and considera factfinding, weighing process really mitigating factors); tion of Jackson v. *56 factfinding judgmental is not at all but a (11th Cir.1988)(find Dugger, 837 F.2d 1469 by jury, determination based on con- unconstitutional a instruction values, flicting of whether the defendant pre which stated that death should be should or die. Barclay live See v. Flor- appropriate penalty sumed as the unless ida, 939, 950, 3418, 463 U.S. 103 S.Ct. mitigating outweigh proven circumstances 3425, 1134, (1983) 77 1144 (plu- L.Ed.2d aggravating circumstances) denied, cert. (“It rality opinion) entirely fitting for 1026, 2005, 486 U.S. 108 S.Ct. 100 L.Ed.2d moral, factual, legal judgment of (1988). 236 judges juries play meaningful sentencing.”). anywhere role in If in the III. criminal law a defendant is entitled to doubt, of construing benefit it is here. We Rather applying than Col- therefore hold that as a matter of funda- penalty orado’s death scheme in a narrow fashion, mental fairness the must find that erroneously the trial expand- aggravating outweigh mitigating factors aggravating beyond ed an factor its intend- factors, and this must be found balance scope erroneously permitted ed beyond a reasonable doubt. single aggravating to consider a factor weighing process. 13, twice Biegenwald, v. 106 N.J. 524 A.2d State 130, (1987). 156

Furthermore, the trial court’s formula A. tion of the reasonable doubt standard Eighth To be consistent with Amendment mitigating outweigh terms of factors not jurisprudence, capital sentencing scheme ing aggravating practical factors has the genuinely per- “must narrow class of creating burden-shifting effect of “a pre eligible penalty sons for the death sumption eligibility upon of death reasonably justify imposition must of a proof aggravating an state’s factor be more severe sanction on the defendant Tenneson, yond a reasonable doubt.” 788 compared guilty to others found of mur- (Quinn, C.J., dissenting). P.2d at 806 “Pre 877, Stephens, der.” at U.S. S.Ct. sumptions shifting which effect of have the 2742; Tenneson, 788 P.2d at see 790. persuasion to an accused burden Indeed, very codifying reason for into have been struck down as violative of due aggravating law a list of circumstances is process of law under both the United satisfy requirement this constitutional Id.; States and Colorado constitutions.” by narrowing persons eligible the class of see, Franklin, e.g., Francis v. 471 U.S. according objec- for the death 307, 1965, (1985); 85 L.Ed.2d 344 legislative tive definition. v. Lowenfield Montana, 510, Sandstrom 244, Phelps, 484 (1979); L.Ed.2d 39 Jolly (1988). (Colo.1987). People, 742 P.2d 891 I cannot Because the defendant at the time he presumption reconcile such a with the con kidnapped and murdered the victim was on against prohibition stitutional cruel and un assault, parole degree sexual for first punishment under federal and usual state 18-3-402, felony, class three 8B C.R.S. or, matter, for that § constitutional doctrine the trial court instructed the on requirements rudimentary with most aggravating factor listed in subsection process due of law. Adamson v. Rick See (1986) is, 16-ll-103(6)(a), (9th Cir.1988) (Arizona etts, 8A C.R.S. 865 F.2d 1011 —that felony by statutory requiring imposition of class was committed scheme “[t]he imprisonment aggra- person for death sentence when one or more under sentence 1, 2, 16—11— felony by or 3 as defined amendment section a class 103(6)(a), statutory ag- The trial court further in- broadens the Colorado law.” “person felony following: that a on “The gravator structed the include still under parole person law deemed to be felony class was committed imprisonment felony sentence of for imprisonment including under sentence originally him to be sen- that caused period probation, parole, prin- majority concludes that tenced.” felony a class or 3 as defined support the ciples statutory construction Ch. sec. Colorado law.” statutory this trial court’s submission of 11—103(6)(a),1988 Colo.Sess.Laws § 16— Maj. op. aggravating jury. factor to added). signifi (Emphasis view, majority con- my 180-182. amendment lies cance the 1988 derogation only in provision strues clearly quite fact that it demonstrates requirement of nar- of the constitutional *57 Assembly change to the General intended eligible for rowing persons the class by broadening scope its preexisting law also in a manner con- death sentence but parole probation. period include to trary statutory construc- basic rules 27, Lobato, P.2d v. 743 30 See Charnes tion. (Colo.1987); Hale, 849, People v. P.2d 654 acknowledge phrase (Colo.1982). “under I 851-52 imprisonment” in section 16- sentence of least, statutory very At the term ll-103(6)(a) perhaps unclear and thus imprisonment” is “under sentence of am meaning. susceptible more than one Un- circumstances, biguous. such Under circumstances, appropriate such it is der requires the statute lenity rule of history in an effort legislative look to strictly in construed favor of the accused. looking legislative effectuate intent. 83, States, 81, Bell v. United 349 U.S. 75 legislative history, majority con- 620, (1955); 622, L.Ed. 99 905 Tenne cedes that the term “under sentence of son, 795; People, 788 P.2d at v. 752 S.G.W. per- imprisonment” was intended to “cover 86, (Colo.1988); Russo, P.2d 88 v. prison they who in the time sons are at (Colo.1986); 356, 713 P.2d 364 Chavez v. Maj. op. 1 felony.” commit the class 1381, (Colo.1983); People, P.2d 659 1384 however, majority, The does not end Lowe, 1261, People v. 660 P.2d 1267-68 Instead, majority, inquiry its here. as- Cornelison, (Colo.1983); People v. 192 serting may that this not have been the 337, (1977). major P.2d 1102 Colo. 559 purpose statutory aggravator, sole ity ignores lenity adopts the rule hypothesizes purpose another inconsistent the constitu construction provide persons effect to on deterrent tionally “narrowing” require mandated class, who, “pose greater parole as a applicable capital sentencing ment statu activity to law enforce- threat criminal tory schemes. ordinary ment authorities than citizens.” Maj. op. (quoting People 182 v. B. Anderson, 302, P.2d 189 Colo. 536 (1975)). unsupported assumption, 304 This permit weigh To to consider and however, without foundation either aggravating same circumstance twice legislative history of the the text or statu- during capital sentencing the course of a tory aggravator under consideration artificially inflating particu- results actually broadening the class results strays of the crime and lar circumstances eligible persons. death from constitutional mandate apply its in a law manner state “tailor It to me that the General is inconceivable arbitrary capricious that avoids the Assembly “under sen- intended term penalty.” People infliction of the v. persons imprisonment” tence of to include Harris, 36, 782, Cal.Rptr. 36 201 679 Cal.3d parole was somehow at a loss to but 433, (1984) (quoting Godfrey P.2d 449 v. express As an ratio- its intent. ostensible 420, 1759, 428, Georgia, 100 S.Ct. for of “under sentence 446 U.S. nale its construction 1764, (1980)). imprisonment,” majority relies on L.Ed.2d 398 “dou- bling up” duplicate ping-killing” effect use of essentially very or the twice for aggravating essentially factor for same purpose determining same the issue of purpose same runs afoul of the constitu however, life majority, or death. The con- requirement capital sentencing tional that a doubling up aggravators cludes that the guide jury’s objective scheme and focus the legally significant” “is not because the particularized consideration of the circum weight was instructed that it is the as- stances individual offense and the signed factor, aggravating to each rather determining individual offender whether factors, than the aggravating number of appropriate punish a death sentence is the that is to Maj. op. be considered. at 189. particular ment in a case. See Jurek v. analysis adequately This does not answer Texas, 262, 273-74, 2950, 428 U.S. 96 S.Ct. “doubling up” problem. Permitting 2957, (1976); State, 49 L.Ed.2d 929 v. Cook aggravating to consider two factors 1251, (Ala. 1979); Randolph So.2d essentially purpose the same increases State, (Fla.1984); v. 463 So.2d the likelihood that the will attribute State, (Fla.1982), Francois So.2d greater weight proven aggravating denied, rt. 458 U.S. ce weighing process factors and corre- (1982); Provence spondingly reduces the likelihood that the State, (Fla.1976), 337 So.2d cert. mitigating will find that no factors denied, 53 outweigh proven aggravating factors. *58 (1977); Rust, L.Ed.2d 1065 v. 197 State duplicate aggravator use of the same 528, 867, (1977); Neb. 250 N.W.2d 874 essentially purpose, for the same the Goodman, 1, State v. 298 N.C. 257 S.E.2d case, jury permitted was to do in this fos- 569, (1979). 587 very the type arbitrary capri- ters and The trial court in this decision-making case submitted to cious that is constitutional- jury “kidnapping” the the statutory aggra- ly prohibited capital sentencing pro- in a 16-ll-103(6)(d), in vator listed subsection ceeding.4 (1986) 8A C.R.S. the defendant “in- —that

tentionally person kidnapped killed a or IV. being hostage by held as a him or case, many perhaps the in the Of errors anyone associated with him”—and also the predominant the most is the trial court’s felony-murder aggravator codified in sec- statutory submission to the 16-ll-103(6)(g), (1986) tion 8A C.R.S. —that aggravating factor that “[t]he the defendant committed “a class or 3 in especially committed the offense an hei- and, felony in the course of or in further- nous, cruel, depraved manner.” therefrom, flight ance of such or immediate (1986). 16-ll-103(6)(j), 8A C.R.S. Al- intentionally per- he caused the § death of a though statutory aggravator such de- participants.” than son other one unconstitutionally vague by clared “kidnapping-killing” Because formed Supreme Maynard United States Court in statutory aggravators, the basis of both 356, 1853, 108 aggra- Cartwright, v. 486 U.S. S.Ct. the trial court’s submission of both (1988), majority, enig- 100 L.Ed.2d 372 impermissibly vators to the allowed view, weigh single matically my in no and consider the finds reversible aggravating “kidnap- circumstance of the error in this case. Although majority against security personal relies on v. Mel sisted of an assault ton, 867, victim, Cal.Rptr. burglary, 44 Cal.3d 750 P.2d and a which involved (1988), denied, also, 741 329, cert. 488 U.S. 109 S.Ct. Clark, invasion of a home. So Clark, (1988) and State aggravating of "murder in the circumstance denied, (1989), N.M. 772 P.2d 322 cert. kidnapping” necessarily did not commission of - -, U.S. 107 L.Ed.2d aggravating the "murder of involve the factor of (1989), proposition doubling up both a witness.” In contrast Melton aggravators constitutionally permissible, I do Clark, tragic involving the circumstances support proposition not read those cases to killing Virginia May kidnapping were cases, majority. no advocated In both weighed improperly twice considered aggravating overlapping actual factors oc very purpose. same for the robbery, curred. Melton involved a which con- recognize I

A. teristics. United Supreme Court in v. Mis States Clemons noting the United States Su- After — U.S. -, 1441, 108 sissippi, preme Cartwright, 486 U.S. Court that there is no L.Ed.2d held statutory ag- held S.Ct. ap impediment to an federal constitutional heinous, atrocious, gravator “especially pellate affirmance of a death sen court’s unconstitutionally vague or cruel” “weighing in a state” where the tence Eighth contrary Amendment’s thus an is instructed on unconstitutional statu against open- prohibition standardless and However, aggravator. tory Court imposition of a discretion ended nothing specially noted that in its Clemons sentence, majority concludes that convey im decision was intended “to submitting this unconstitution- error appellate pression courts are re that state ally vague harmless be- aggravator was quired necessarily engage should op. yond Maj. 177- a reasonable doubt. analysis reweighing or harmless error majority astounding 180. The reaches capital in a when errors have occurred sen by engrafting statutory conclusion onto — at-, tencing proceeding.” narrowing construc- aggravator so-called say an appellate at 1451. To S.Ct. Supreme deci- tion derived from the Court’s prohibited indulging is not from Florida, sion in Proffitt therefore, certainly procedure, such (1976) (Stewart, 2960, 49 L.Ed.2d 913 prudent to affirm that the course for Powell, Stevens, J.J.), upheld a proce such appellate court is endorse heinous, aggravator “especially Florida dure. atrocious, or basis of the cruel” Florida Court’s construction limit- facts, weighing re this court trans- aggravator to murders which are appellate its traditional function of forms pitiless” and “conscienceless or “unneces- of a error law review trial record for *59 Maj. sarily op. torturous to the victim.” appellate factfinding. into a role of Justice fallacy of spoke Blackmun to the such an dissent in approach Clemons: interpretative gloss on the Proffitt part upon a jury’s If a verdict rests heinous, cruel, meaning “especially of constitutionally impermissible aggravat- depraved” brought to was never the atten- factor, ing appellate State’s Nevertheless, jury tion in this case. upon upholds the death sentence based according majority, if the trial court reweighing legitimate aggra- its own unconstitutionally properly had limited circumstances, vating mitigating only include those vague terms to murders court, sense, appellate any real not has pitiless, which were conscienceless or approved or affirmed the verdict of victim, unnecessarily to the were torturous Rather, reviewing court in that jury. under the facts of this case would has assumed for itself the role situation op. Maj. have returned a verdict death. implication logical of sentencer. conclusion, a at 179-180. Such reduced approach majority’s no trial- essentials, nothing but a facile its sentencing procedure need con- level be guess at what the would found Instead, a at all. the record of ducted hypothetical totally under set instruc- (including sentencing hear- capital trial realistically possibly not tions could ing reporter) before a court conducted contemplation have been within shipped appellate as might well be juror when this case was decided. tor It is did heinous, cruel, important make a mere note passing depraved reference prosecu- manner court, which then would determine the sentence appropriate ^{[*] [*] [*]} in the first sf: ¡fc instance. ^[*] therefore, part, impropriety which murder was committed. Rath- In er, presented appel- prosecutor appellate with a rests ability to description way late diminished act as vivid court’s three I think there is more to killing satisfied each of these charac- factfinder. But 764-65, appellate it than that. An ill- 1247-48; court is 66 S.Ct. at Gaffney, 1088; suited to undertake capital Tevlin, the task of 342; 769 P.2d at 715 P.2d at sentencing, simply Quintana, because of its Where, 665 P.2d at 612.

general factfinder, deficiencies as a here, the error is of a constitutional charac- because the costs of ter, erroneous factfind- reviewing court must be satisfied high, are so but also because the beyond error is harmless a reason- capital sentencing very decision its able properly doubt before the error can be peculiarly likely nature is to turn on con- categorized as E.g., harmless. Satterwhite siderations that adequately cannot Texas, 249, 1792, v. 486 U.S. conveyed through the medium of a writ- (1988); L.Ed.2d 284 Chapman v. Califor- ten record. nia, 18, 824, 17 L.Ed.2d (1967); at-,-, Germany People, v. 198 Colo. 1456, Id. 110 S.Ct. at 337, (1979). (Blackmun, 599 P.2d 904 dissenting). J. We have salutary adhered to this principle of not If the failure of a trial court to instruct a reweighing appeal merely evidence on be- jury on an essential element of a crime might cause we have reached a conclusion plain constitutes affecting error the sub- different from that drawn if we rights defendant, see, stantial e.g., had jurors served as in the case under People, (Colo. Ramirez v. 682 P.2d 1181 review. E.g., Godfrey People, v. 168 Colo. 1984); Hardin, People v. 199 Colo. (1969); 451 P.2d 291 Cokley People, v. (1980); Archuleta, P.2d (1969); 168 Colo. 449 P.2d 824 Neigh- Colo. 503 P.2d 346 I am at a People, bors v. 161 Colo. 423 P.2d 838 total loss to understand how the trial (1967); Balltrip People, 157 Colo. court’s unconstitutionally instruction on an (1965); 401 P.2d 259 People, Mitchell v. vague statutory aggravator, especially (1898). Today’s Colo. 52 P. 671 deci- when viewed connection with several sion, unfortunately, long- abandons this record, other errors of can be deemed standing principle jurispru- of Colorado harmless light constitutional error. dence. statutory requiring Colorado’s scheme beyond to be convinced a reasonable B. any mitigating doubt that factors do not inevitably Because mistakes will occur in outweigh proven statutory aggravating trial, appellate the course of a court is factor, requirement and the further *60 disregard affecting directed to errors not a jury, the weighing aggravating after the right substantial of an accused.- C.A.R. factors, mitigating and agree must unani- 35(e). proper inquiry determining in a mously beyond and a reasonable doubt that question harmless-error is not whether appropriate penalty, death is the see Tenne- there was sufficient support evidence to son, 786, say any I 788 P.2d cannot with error, the verdict without the asserted but assurance, degree beyond of much less a rather whether the substantially error in doubt, that the error in reasonable submit- fluenced the verdict or affected the fair ting unconstitutionally vague aggravat- the proceedings. ness of the trial E.g., Kottea ing jury adversely factor to the did not and States, 750, 764-65, kos v. United substantially influence the verdict or im- 1239, 1247-48, 66 S.Ct. 90 L.Ed. 1557 pair capital the basic fairness sen- (1946); 1081, People Gaffney, v. 769 P.2d tencing hearing. (Colo.1989); People, 1088 Tevlin v. 715 338, (Colo.1986); Quin P.2d 342 People v. V. tana, 605, (Colo.1983). Only 665 P.2d 612 reviewing if a irregularities, court can find with fair Numerous each one of assurance, reversal, in light might justify of the entire record of which in itself trial, may the that the error did not in aggregate substantial the so affect the sub- ly impair rights require influence the verdict or fair the stantial of accused as to trial, may Botham, the E.g., People ness of the court deem the reversal. 629 P.2d v. Kotteakos, (Colo.1981); E.g., Lucero, error harmless. People 328 U.S. 589 v. 200 224 433; Harris, 335, (1980); purpose, 679 P.2d and 660 same 615 P.2d Colo. unconstitutionally of an 543, the submission

Reynolds, 194 575 P.2d Colo. the its vague aggravating factor to for (1978); People, 150 Colo. Oaks life or question on consideration (1962). The in case errors this P.2d death, 108 S.Ct. Cartwright, U.S. impermissible following: include 1853; Godfrey, U.S. jurors two whose views disqualification of pre- punishment on would not have capital substantially impaired in them vented or Regrettably, these errors did not end duty apply of their performance capital sentenc- with the termination of in a of the case consci- law to the facts case, hearing. resolving this manner, Wainwright, impartial analysis entious a form of majority employs 844; Maxwell, 398 105 S.Ct. scrutiny U.S. re- irreconcilable with the strict 1578; a the submission of judicial U.S. of a death quired review reasonably today’s nothing instruction that could I find decision sentence. preclude law’s to de- been that contributes effort understood system capital punishment that velop a mitigating evidence consideration genu- principled, consistent and jurors agreed to the exist- is both unless all twelve persons eligible inely narrows the class of particular mitigating circum- ence of sentence, provides the death and that Mills, 1860; for stance, U.S. high de- procedures calculated to achieve a another instruction submission of reliability gree certainty capacity that had the to confuse ap- jury’s determination that death is de- responsibility whether the ultimate particular propriate sentence case. termining appropriateness of the death the court or sentence rested with with Gary may well Lee Davis It Caldwell, 472 jury, 105 S.Ct. deserving for his of execution retribution 2633; the submission of a third instruction decision, how- That life-or-death crimes. that, view, my at least in formulated ever, of a fundamen- should be result miti- not, here, standard in terms of proceeding reasonable doubt tally fair gation outweighing aggravation irreparably process in con- product of an flawed procedural in- requirement reli- replete travention the basic substantive mandated firmities that cannot withstand constitu- ability for death verdict reasonably objective scrutiny under tional Cruel and Unusual Punishment Clauses analysis. the death sen- I would vacate the United States and Colorado Constitu- case. VIII; tence tions, U.S. Const.Amend. Colo. Const, II, 20, and in art. contravention § say I am authorized Justice against burden-shifting prohibition join KIRSHBAUM LOHR Justice prosecu- presumption upon of death part. dissent in aggravating proof tion’s of an factor *61 dissenting: LOHR and Unusual Punish- Justice violation the Cruel Due ment and Process Clauses Unit- unique severity finality of the and Constitutions, ed and U.S. States Colorado heightened penalty require a level Const, XIV; and Const. Amends. VIII Colo. reliability capital certainty and sentenc- 25; II, art. and the erroneous sub- §§20 367, ing. Maryland, Mills 486 U.S. v. statutory aggravator by con- mission of 1860, 1870, (1988); 100 L.Ed.2d 384 S.Ct. struing applying in a manner that 238-39, Phelps, v. 484 U.S. Lowenfield genuinely than narrowed broadened rather (1988); 98 L.Ed.2d 568 108 S.Ct. persons eligible for the class of the death Ohio, 586, 604, v. 98 S.Ct. Lockett penalty, Stephens, 462 U.S. 2954, 2963, (1978); People 57 L.Ed.2d 973 2733; single aggravat- (Colo.1990). the submission Tenneson, 788 P.2d separate statu- Tenneson, circumstance under two held that Colorado’sdeath In tory aggravators, with the result that statute should construed reliability weighed ag- strong the same concern for jury light considered and of this Tenneson, certainty. at 792. gravating twice for circumstances statute, heinous, cruel, daily depraved The Colorado death manner.” (1986), 16-11-103, 16-ll-103(6)(j), (1986). 8A C.R.S. establishes See 8A C.R.S. § § four-step process jury majority acknowledges for deliberation in The that this statu- First, the penalty phase. jury tory aggravator unconstitutionally must is vague prosecution Supreme determine whether has under the United States Court’s proven the existence of at least holding Maynard one statu- Cartwright, factor tory aggravating beyond a reason- U.S. 16-ll-103(2)(a)(I), -(6). (1988),

able doubt. but concludes that its erroneous §§ Second, jury if the finds that at one jury least submission to the was harmless be- statutory aggravating exists, yond factor Maj. op. reasonable doubt. at 176- jury must then any consider whether miti- 180. The majority jury concludes that the gating 16-ll-103(2)(a)(II), factors exist. would have returned a death sentence if it § Third, -(5). jurors heinous, given especially must determine had been cruel prosecution depraved whether has aggravator convinced or instruction that in- beyond them any corporated a reasonable doubt that constitutionally-sufficient nar- mitigating outweigh rowing factors do not Maj. definitions of those terms. statutory aggravating op. agree factor or factors at 180. I with Chief Justice previously Tenneson, Quinn found to exist. that such a conclusion is no more Fourth, finally, jury guess if the finds than a jury might as to what the beyond a properly reasonable doubt that miti- have decided had it been instruct- gating outweigh proven factors do not ed. factors, statutory aggravating jurors Although the United States prosecution

must then decide whether the permissible Court has held that it is under beyond has convinced each of them a rea- appel- federal constitution for a state sonable doubt that the defendant should be uphold late court to a death sentence sentenced to death. Id. at 796. by applying case such as this a harmless — I Because believe that the instruc- analysis, Mississippi, error Clemons v. given penalty phase

tions Gary -, -, Lee Davis’s trial contained er- numerous approach L.Ed.2d 725 such an rors, affecting deliberations at sev- statutory inconsistent with Colorado’s stages, I respectfully join eral dissent. I Colorado, respon- scheme. 11(A) (B), IV, parts and much of what weighing aggravators sible and miti- parts is said in III1 and V2 of Chief Justice gators. advisory merely Its decision is not Quinn’s dissenting opinion, sepa- but write E.g., as it is in some other states. Fla.Stat. rately express my fully more views 921.141(2) (1985). Ann. The Colorado § grounds. dissent on further legislature contemplate appel- did not weigh ag- late courts would reformulated

I. gravating against mitigating factors properly factors to determine whether a Penalty phase presented instruction no. 3 instructed would have concluded that aggravators jury: three erroneous appropriate. the death sentence heinous, especially depraved cruel or testimony that hears the and views the aggravator, impris- the under sentence of uniquely witnesses is able to make the dif- aggravator, felony onment and the murder judgments required weigh- ficult moral aggravator.

ing aggravating mitigating and factors and determining is whether the sentence A. warranted. The trial court submitted to the the Furthermore,

statutory aggravating agree factor that I with Chief Justice de- “[t]he Quinn analysis in this espe- fendant committed the offense in an that harmless error dissenting Quinn’s Justice 1. See n. below. 2. Part V of Chief I, 11(C) opinion parts relies in some measure on argument part join. in III that I do not and an light purpose. Olinyk People, of its finding beyond a reason- requires case a (Colo. 1982). Although the P.2d that the error did substan- able doubt acknowledges pur majority that one of the tially the influence the verdict affect aggravator an poses provide I am for this was to proceedings. the unable fairness of persons already in beyond that additional deterrent for a reasonable doubt to conclude prison, majority ag- the the that this jurors by errone- contends the were unaffected to fur gravator provide also intended ous instruction. persons who, parole for on ther deterrence activity, previous their criminal by B. insufficiently they demonstrated that are time of the murder Davis Because the op. by penal Maj. sentences. deterred parole degree first sexual as- was on for majority point is to 181-182. The unable to sault, the on the trial court instructed legisla support for this contention class aggravating factor that “[t]he Furthermore, history. purpose tive this is person committed under felony was properly motivating as the more viewed imprisonment for class sentence of statutory aggravator force behind felony or 3 as defined Colorado law.” prior felony convictions. See (em- 11—103(6)(a), (1986) 8A See C.R.S. § 16— 11—103(6)(b).3 § 16— added). unpersuaded by the phasis I am aggravator majority’s contention that this C. persons parole. to include

was intended trial the kid- interpretation Our of criminal statutes is court submitted both aggravator, principles. napping statutory Three guided by several are First, 11—103(6)(d), felony murder particular relevance here. when a and § 16— 11—103(6)(g), jury. penal ambiguous, aggravator, to the code statute a court § 16— interpret light principle kidnapping Because the conviction should adopt felony felony ag- for lenity, requires predicate the court to murder gravator,4 the of both of these the construction that favors the defendant. submission Lowe, (Colo. to un- aggravators P.2d amounted 1983). Second, double-counting single look of a the court should constitutional agree crime. I legislative history aspect in an effort to determine with Chief Quinn legislative presenting intent. that Rights Civil Justice same Washington aggravating v. North Fire Pro circumstance Comm’n twice, Dist, (Colo.1989). artificially 772 P.2d I the instructions inflated tection agree Quinn importance single Chief Justice that factor and legislative history surrounding requirement 16- the constitutional section undermined ll-103(6)(a) legislature’s capital sentencing law tai- demonstrates the must be arbitrary persons prison applied cover lored avoid the intent to subsequent expansion capricious penalty. infliction of the death legislature’s legislative majority argues aggravator indicates a de that because Third, weight change preexisting law. was instructed that of each sire to than the number should construe the statute factor rather of factors felony aggravator: Quinn ma- icates to the murder second- 3. Chief Justice would hold 16-ll-103(6)(a) kidnapping, conspiracy degree jority’s is "in commit first- § construction of murder, degree conspiracy requirement to commit sec- derogation of the constitutional ond-degree kidnapping. party Because the persons eligible narrowing the class of agreement aggravator, Quinn, C.J., kill dissenting, slip death sentence.” 11—103(6)(e), also submitted § op. this issue and do at 220. I would not reach 16— felony-murder aggravator jury, had con- join part expressed that view III of predicate spiracy to murder its would double- dissenting opinion. Chief Justice’s aspect single of the defendant’s count crime. second-degree Although specifies majority opinion 4. The verdict form states that victim, felony ag- raped predicate sexually kidnapping for this assaulted the is the Davis *63 closing argument, charged gravator. was never with or convicted prosecutor's Davis however, pred- were these crimes. he asserted that there three

227 — important, double-counting McKoy Carolina, was was of ble. North v. U.S. legal significance. -, no ignores -, 1233-34, This like 1227, S.Ct. 110 108 jurors lihood that are in fact influenced (1990); L.Ed.2d 369 Mills v. Maryland, 486 aggravators presented the number of as 367, 384, 1879, 1860, U.S. 108 S.Ct. 100 weight they assign well as the to those (1988). L.Ed.2d 384 factors.5 in several Courts states have provided pertinent 5 Instruction no. in double-counting impermis found such to be part: despite statutory sible schemes that theo steps your first two delibera- If retically aggravating make the number of tions you have made unanimous find- legally State, factors irrelevant. v. Cook ings that prosecution proven has be- 1251, (Ala.1979); So.2d 1256 369 v. yond a reasonable doubt that one or Harris, 36, 782, Cal.Rptr. 36 Cal.3d 201 679 more aggravating factors exist that 433, (1984); State, P.2d 449 v. Provence exist, no mitigating factors or that a 783, (Fla.1976), denied, 337 So.2d 786 cert. exist, mitigating you or factor factors 969, 2929, 53 L.Ed.2d 1065 must now prosecution decide whether the (1977); Rust, 528, State v. 197 Neb. 250 proven any aggrava- has that factors in 874, denied, N.W.2d cert. U.S. outweigh any mitigation. tion factors in (1977); L.Ed.2d (Emphasis added.) Goodman,

State N.C. S.E.2d majority following The asserts Jenkins, (1979); State v. 15 Ohio portion adequately the same instruction (1984). N.E.2d St.3d 296-97 ambiguous clarifies this statement:

II. all, If or one more jurors be- mitigating lieve that a factor factors capital The requires federal constitution outweigh aggravating factor or permit statutes the sentenc exist, jury factors then found to shall ing body any mitigat to consider relevant enter a imprisonment. verdict life regarding circumstances defen background, dant’s character and the I am why at a to see loss this would Boyde circumstances of the offense. v. dispel the impression created the earlier — -, -, California, 110 S.Ct. portion of the instruction that 1190, 1195-96, (1990); 108 L.Ed.2d 316 must make findings unanimous — U.S. -, Penry Lynaugh, mitigating major- existence of factors. The (1989). plausible ity’s interpretation only would designed case that instructions were if deliberations had been struc- ensure fulfillment of that constitutional three-step process as a which tured requirement fatally were flawed two re any statutory would first if determine they susceptible interpre spects: are of an existed, aggravators weigh then miti- jurors unanimously agree must tation statutory gators against proven aggra- mitigating on the existence factors and the death finally vators and determine if prohibited jurors are from consid case, appropriate. In this sentence ering the allocution. however, explicitly instructed four-step process, includ- to follow A. step requiring an additional ed Quinn any mitigating I factors agree with Chief Justice determine whether constitutionally impermissible four-step process, In this the ex- there was existed. may thought mitigators step jurors determined risk istence they unanimously upon assigned and the to those miti- agree weight had to two step mitigating gators factors con- found to exist is determined existence before required portion sidering weighing them in the in three. instruction only upon governs step majority Such a relies three of their deliberations. during impermissi- weight assigned mitigators step

requirement constitutionally Moreover, aggravating closing argument prosecutor emphasized factors. the number of *64 constitutionally evi already interpreted relevant juror If a has sideration three. at -, 1198.6 previous portion Boyde, of the instruction S.Ct. at dence.” determination require unanimous pertinent part: in Instruction no. states exist, mitigating circumstances then which pen- During the course of the trial and language juror interpret that would you alty hearing received all the evi- majority only to allow relied on may you properly that consider dence jurors to make their own determinations decide the case. decision must Your mitigating weight of those regarding the law by applying made the rules of unanimously agreed upon step in factors you I to the evidence give which two. presented. instruction, ambiguity Given your duty It is to determine the facts necessarily high reliability and the level you the evidence have heard dur- from capital required penalty phase in of a including any ing the entire trial addi- trial, rea- I am unable to conclude no presented during the tional evidence interpreted this juror could sonable have penalty phase hearing_ impermissi- constitutionally in instruction you When I told not consider finding require a unanimous ble manner to statement, you were told to particular factor particular mitigating existed that a mind, your out of put statement con- that factor could be taken into before any in you may not statement consider weighing process. in sideration you in- your were deliberations disregard. The structed to unsworn B. evi- statement is not In this case the defendant exercised dence. argues right to allocution. The defendant Finally, you should consider all the evi- may trial have court’s instructions light your dence observations they jurors led the to believe that were experiences in life. mitiga- to consider the allocution allowed added.) closing In as (Emphasis argument, tion. well, prosecutor told the that un- requires The United States Constitution sworn statements are not evidence. capital sentencing scheme allow the that a majority simply there The concludes that sentencing any body to consider relevant juror not a likelihood that is reasonable mitigating regarding circumstances the de pre- applied the instruction to could background and fendant's character and allo- vent consideration the defendant’s E.g., circumstances of the offense. The Maj. op. disagree. at I cution. 193. at -, 1195-96; Pen Boyde, jury’s duty to repeated references 2946; ry, Skipper South evidence, with the consider the combined Carolina, 476 U.S. statement the defen- instruction’s (1985). majority The 90 L.Ed.2d evidence, is dant’s allocution not created acknowledges con defendant was unacceptable juror risk that a would have stitutionally entitled to have con considering prohibited from the allocu- felt might be relevant sider his allocution tion. Maj. op. mitigation. at 192. in this question case whether III. interpreted jurors may have instruction no. I hold preclude considering them from would also instructions comply do and verdict form this case

defendant’s allocution. standard requirements we enunciated is a reasonable likelihood with “whether there Tenneson, (Colo. P.2d applied challenged People has Tenneson, 1990). pros- held that the way prevents the con- instruction notes, Maj. op. n. majority Boyde jury’s at 193 "used the term decision." 6. theAs all a non-technical sense include 'evidence’ and circumstances relevant material *65 beyond jury beyond the a ecution must convince not mention the a reasonable doubt any mitigating that in pertinent part: reasonable doubt burden. It stated outweigh proven the factors do not statu- If jurors unanimously all agree that the factors aggravating and that death is tory aggravating factor or factors found to appropriate penalty. The instructions the outweigh mitigating exist the factor or present in the case given are inconsistent factors or there mitigating that are not confusing concerning prosecution’s the factors, you your then shall continue de- in step process. the three weighing burden in liberations accordance with these in- structions. of the Several instructions are relevant. four-step pro- Instruction no. outlined the provided Instruction 7no. further clarifi- required by the cess Colorado statute. It step jury’s cation the fourth in the delib- prosecu-

began a brief overview of the eration. It in step stated the third “[i]f tion’s burden: your you deliberations have made unani- penalty Colorado law the findings aggravating allows death mous that the factor only prosecution beyond if the proves outweigh ... or factors to found exist the miti- gating a reasonable doubt that: that mitigat- factors or there are no factors, you must now decide whether specified aggra- 1. One or more of the the defendant should be sentenced death vating beyond factors exist a reasonable life imprisonment.” doubt; and mitigating 2. No factor or out- factors The verdict form also omitted refer- weigh aggravating the factor factors a beyond ence reasonable doubt bur- beyond found exist a reasonable applicable weighing den aggravating doubt; and mitigating in perti- factors. It stated appropriate part: 3. Death punishment is the nent

in this ease. We, jury, are find there insuffi- mitigating cient outweigh factors to the law is This statement of consistent with aggravating factor or factors set Tenneson. This instruction then forth proven by prosecution beyond been discussing each paragraphs a series reasonable doubt. steps four greater detail. The first paragraph explained during the first Tenneson, qualita- wrote “[t]he stage jury jury deliberations tively unique irretrievably final nature beyond must find reasonable doubt that penalty death ‘makes it unthinkable aggravator specified at least one exists. jurors impose the death explained next paragraph during The they when harbor reasonable doubt as to ” jury second step must consider Tenneson, justness.’ (quot- its at 791-92 any mitigating whether factors exist. The ing State v. 112 N.J. 548 A.2d Bey, paragraph explaining step three (1988)). emphasized We the en- part jury’s pertinent deliberations stated in certainty reliability need for hanced only jury if one or finds that “[i]f 792; procedures. Id. at specified aggravating more out- factors Drake, People also P.2d see factors, weigh mitigating jury then (Colo.1988); Durre, proceed step.” should fourth (Colo.1984). Although in P.2d discussing paragraph step fourth provided initial overview instruction no. jury deliberation instructs correctly 2 the trial court instructed the beyond prosecution prove must a reason- beyond they must be convinced doubt that death is appropriate able any mitigating reasonable doubt penalty. outweigh proven factors do not statu- tory factors, penalty phase aggravating the instructions included instructions beyond explaining greater other instructions de- failed include a reasonable places stages requirement the three tail deliberations. doubt given instruc- specifically Instruction no. 5 dealt with the where the detailed deliberations, weighing step step but did tion as to its three delibera- third in- then was harmless form also failed to holds the error The verdict tions. doubt, beyond referring reasonable requirement. I would hold that clude this States decision United Court unacceptable created an those omissions *66 — U.S. -, Mississippi, v. 110 Clemons ap- jury did not consider risk 1441, 108 au L.Ed.2d 725 as S.Ct. burden. propriate startling thority for this conclusion.1 IV. penalty requires death Colorado’s statute jury mitigating fact-finding balance profoundly serious nature Given reaching aggravating circumstances in heightened relia- penalty death 16-11-103(2), 8A its ultimate decision. § consistently required in have bility we Tenneson, (1986); People v. 788 C.R.S. hold sentencing procedures, I would death (Colo.1990). majority P.2d 786 The con- above that each of the errors discussed dispositive” of the Clemons cludes that “is sufficiently undermines the fairness single of whether submission of issue in certainty returned of the death sentence re- aggravator jury unconstitutional require agree I also case to reversal. this quires reversal of a sentence of death. Quinn that the cumula- with Chief Justice Maj. op. permis- at 179. That conclusion is of these errors further under- tive effect only properly may this court re- sible if re- need I would scores the for reversal. weigh in the manner the evidence return the of death and verse sentence However, Court described Clemons. un- directions case to the trial court with Mississippi Supreme Mississippi der law the imprisonment. a sentence life impose authority to apparently Court has decide penalty for itself whether the death should dissenting. Justice KIRSHBAUM aggravating when an factor be affirmed Quinn’s part IV join I of Chief Justice should not have upon jury which the relied is probability great dissent. Because Clemons, 110 presented jury. been to the jury’s consideration of the uncon- that the I principle know of no S.Ct. at heinous, “especially de- cruel or stitutional authorizes this court to Colorado law that im- praved” rendered its verdict aggravator type credibility evaluation engage eighth permissibly suspect under contemplated evidentiary comparisons United States Constitu- amendment required weighing process our tion, be vacat- the sentence of death should jurisprudence The statute. re- ground alone and the case ed on that appellate of this state has established that imposition of the trial court for manded to adjudication fact-finding does not embrace imprisonment. a sentence of life D.G.P., See, People re e.g., authority. recognizes aggra- this majority 238, (1977); God 194 570 P.2d 1293 Colo. factor, instruct- vating 299, which the frey People, v. 168 451 P.2d 291 Colo. prosecutor which the People, 24 532, ed to consider and Mitchell v. (1969); 52 Colo. closing arguments, emphasized (1898). vio- appellate P. 671 Our function objective constitutional standards be- determining lated federal limited to whether provide sufficient certain- properly it failed cause standards evidence admitted verdict, ty arbitrarily supports did not act whatever con trial imposing might taken of that capriciously trary sentence view we O’Donnell, v. Maynard Cartwright, v. U.S. evidence. death. same (1974). 1853, (1988); 434, majori L.Ed.2d 372 Colo. 521 P.2d 771 S.Ct. ty’s suggests this court Godfrey Georgia, 446 U.S. conclusion (1980). Having possesses authority reverse a appellate deter- 64 L.Ed.2d 398 indepen on error verdict of death based our mined that the trial court committed I magnitude, majority re-weighing dent of the evidence. do of constitutional Maryland, correctly appeal. majority trial See Mills v. 1. The concludes (1988); give any limiting court’s failure to instruction Proffitt Florida, regard meaning "especially 49 L.Ed.2d hei- nous, (1976). depraved” cannot be cured cruel statutory support find daily prosecutor’s emphasis common-law in view of the adjudication in concept appellate such of the evidence in aggrava- relation this state. tor.

I majority’s also find untenable con- hideous, The defendant’s conduct was clusion and can that this should accu- prosecutor emphasized closing in his rately psychoanalyze the state of mind arguments. That historic fact not in they all had considered a jurors twelve However, dispute. I conclude this narrowing record that contained a instruc- court cannot ascertain from the record satisfying tion articulated in standards what case would have done *67 Florida, 242, 96 S.Ct. had it not considered unconstitutional Proffitt (1976). 49 L.Ed.2d 913 This conclu- “especially heinous, cruel and depraved” appears sion the majority’s contradict aggravator, much less what the would earlier because the determination that un- have done had it aggrava- considered that aggravator constitutional had not been so together limiting tor with a instruction possible narrowed it was not ascertain never received. I also conclude that this whether in fact jury’s verdict resulted court, juris- appellate exercise its passion. from unbridled and unrestrained diction, should not constitute itself as the I accomplish by fail to how a court see can every court in penalty death hypothesis accomplish it cannot what by independently identifying case and then fact. re-weighing aggravating mitigating requested factors when to do so majority’s assumption that a harm- the defendant. I therefore analysis appropriate less error espe- respectfully contrary dissent from the con- cially in light closing argu- untenable of the majority. clusions presented by People. prose- ments basically legal principles cutor recited say I am authorized Justice commenting ag- law alleged when on other joins LOHR this dissent. gravators. discussing When the “espe- heinous, cially depraved” aggra- cruel and

vator, however, prosecutor emphasized establishing evidence the inhuman na- brutally

ture of defendant’s conduct Virginia rebuttal,

murdering May. In

prosecutor emphasized the again “hideous”

nature of the defendant’s bestial conduct. Relying Stephens, on Zant v. Petitioner, SAVINGS, COLUMBIA majority determines that because the ZELINGER, Respondent. Pearl same evidence would have been admissible aggravators, prosecu- establish other No. 88SC551. tor’s references that evidence did not Colorado, Court of Zant, constitute reversible error. how- En Banc. ever, Georgia arose in the context of a did statute that not contain 25, 1990. June balancing features of section 16-11-

103(2). statute, juries may our Under con- aggravator outweighs

clude that one so penal- factors the death mitigating

ty imposed. possible should be It is beyond

conclude a reasonable doubt that jury’s here not turn decision did significance

considerations of the alone, aggravator espe-

unconstitutional