People v. Young , 15 Brief Times Rptr. 927 ( 1991 )

Justice LOHR

announced the Judgment of the Court and delivered an Opinion

in which Justice KIRSHBAUM and Justice MULLARKEY joined.

This case presents a question concerning the facial constitutionality of the Colorado death penalty sentencing statute, § 16-11-103, 8A C.R.S. (1986 & 1990 Supp.), under article II, sections 20 and 25, of the Colorado Constitution. The Denver District Court held the statute invalid. We agree.

I.

The defendants, Joseph L. Young, Roger L. Young, and Kevin Fears, are charged with first-degree murder¹ and other crimes in connection with the June 1989 deaths of two men, and the prosecution has stated that it intends to seek the death penalty. In May 1990 the district court, on the defendants’ motions, ruled that the statute creating the procedure for deciding whether the death penalty should be imposed as a sanction for first-degree murder facially violates the Colorado Constitution.² The People appealed, relying on subsection 16-12-102(1), 8A C.R.S. (1986), as authority to obtain appellate review of the district court’s interlocutory ruling.

II.

At the outset we must determine whether we have jurisdiction over this case. We conclude that section 16-12-102(1) does not authorize this appeal but that we can and should exercise our original jurisdiction under C.A.R. 21 to review the district court’s ruling invalidating Colorado’s death penalty sentencing statute.

A.

We turn first to the language of section 16-12-102, which provides authorization for appeals by the prosecution in certain circumstances. Well established principles will guide us in construing that legislation. In interpreting a statute, our primary task is to give effect to the legislature’s intent, which is to be discerned when possible from the plain and ordinary meaning of the statutory language. E.g., People v. Davis, 794 P.2d 159, 180 (Colo.1990), cert. denied, — U.S. -, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991); People v. District Court, 713 P.2d 918, 921 (Colo.1986). Statutory provisions are not to be subjected to a strained or forced interpretation. E.g., Anderson v. Kautzky, 786 P.2d 1082, 1085 (Colo.1990); Kern v. Gebhardt, 746 P.2d 1340, 1344 (Colo.1987). Moreover, a statute must be construed as a whole so as to give consistent, harmonious, and sensible effect to all its parts. E.g., People v. District Court, 713 P.2d at 921; Massey v. District Court, 180 Colo. 359, 364, 506 P.2d 128, 130 (1973).

Subsection 16-12-102(1), 8A C.R.S. (1986), provides in relevant part:

The prosecution may appeal any decision of the trial court in a criminal case upon any question of law. If any act of the general assembly is adjudged inoperative or unconstitutional in any criminal case, it is the duty of the district attorney of the judicial district in which the court making such decision is situated to appeal on behalf of the people of the state of Colorado, unless the same issue of constitutionality is already pending before a reviewing court in another case. Nothing in this section shall authorize placing the defendant in jeopardy a second time for the same offense.... The procedure to be followed in filing and prosecuting appeals under this section shall be as provided by applicable rule of the supreme court of Colorado.

Although subsection 16-12-102(1) provides that “it is the duty of the district attorney” to appeal a trial court decision adjudging a Colorado statute unconstitutional in any criminal case, that subsection does not specify whether prosecutors are authorized to take interlocutory appeals of such decisions. In contrast, subsection 16-12-102(2), 8A C.R.S. (1990 Supp.), specifically provides for interlocutory appeal by the prosecution

from a ruling of the trial court granting a motion made in advance of trial by the defendant for the return of property and to suppress evidence or granting a motion to suppress an extrajudicial confession or admission if the prosecution certifies to the judge who granted such motion and to the supreme court that the appeal is not taken for the purposes of delay and the evidence is a substantial part of the proof of the charge pending against the defendant. The prosecution may also file an interlocutory appeal in the supreme court from a ruling of the trial court granting a motion in limine pertaining to the matters described in this subsection (2).³

In construing section 16-12-102 as a whole, we presume that the legislature’s specific authorization of prosecutorial interlocutory appeals in subsection 16-12-102(2) combined with its failure to provide such authorization for other interlocutory appeals under subsection 16-12-102(1) indicates its intention to confine interlocutory appeals to those specified under subsection 16-12-102(2). See, e.g., Buder v. Sartore, 774 P.2d 1383, 1387-88 (Colo.1989) (where statute specifies particular situations in which it is to apply, the statute is ordinarily to be construed as excluding from its operation all other situations not specified); Meyer v. Charnes, 705 P.2d 979, 982 (Colo.App.1985) (same). The concern expressed in subsection 16-12-102(2) by the requirement that the prosecution certify “that the appeal is not taken for the purposes of delay and the evidence [suppressed] is a substantial part of the proof of the charge pending against the defendant” also indicates legislative intent to limit interlocutory appeals.

In addition to setting out specific instances in which interlocutory appeal is authorized, section 16-12-102 allows for appeal “as provided by applicable rule of the supreme court of Colorado.” We have adopted C.A.R. 4.1 to govern interlocutory appeals from suppression orders and other orders covered by subsection 16-12-102(2). Other appeals are governed by C.A.R. 1, which provides in pertinent part that “[a]n appeal to the appellate court may be taken from: (1) A final judgment of any district, superior, probate, or juvenile court in all actions or special proceedings whether governed by these rules or by the statutes.” C.A.R. 1(a)(1) (emphasis added). We have considered dismissal of a charge from a multi-count information to be a “final judgment” for purposes of appellate review under C.A.R. 1(a)(1). People v. Jefferson, 748 P.2d 1223, 1224 (Colo.1988). We deemed it important that dismissal of a charge “disposes of the opportunity to try that defendant on that particular charge at the same time other charges are pending before the trial court.” Id. at 1225.

In People v. Romero, 801 P.2d 1192 (Colo.1990), we declined to extend our holding in Jefferson. In Romero, the defendant sought relief under Crim.P. 35(c) to vacate a judgment of conviction. Id. at 1193. The prosecution sought dismissal, asserting that the Crim.P. 35(c) motion was barred by subsection 16-5-402(3), 8A C.R.S. (1986), which limits collateral attacks on convictions. Id. The trial court ruled that subsection 16-5-402(3) was unconstitutional and ordered a hearing on the merits. Id. The prosecution appealed this interlocutory order. Id. We dismissed the appeal for lack of appellate jurisdiction, concluding that subsection 16-12-102(1) did not confer jurisdiction on this court to consider the prosecution’s interlocutory appeal. Id. at 1195. We noted that unlike the dismissal in Jefferson, the trial court’s ruling that the statutory limit on collateral attacks was unconstitutional would lead to a hearing on the merits. Romero, 801 P.2d at 1194. We stated that denying appellate review in Romero was

consistent with the law and policy concerning interlocutory appeals by the prosecution in criminal cases. Because the prosecution in criminal cases generally is denied later appellate review, the prosecution is afforded more opportunity than is the defendant to appeal adverse interlocutory rulings.... This relatively greater ability of the prosecution to bring interlocutory appeals, however, is severely limited out of concern that the prosecution may “wear down” the defendant by taking an interlocutory appeal and because of the defendant’s interest in the swift resolution of the case.

Id. at 1194-95 (citations omitted).

We are persuaded by the concerns raised in Romero that we should not extend our holding in Jefferson. We cannot consider a pre-trial ruling that the death penalty statute violates the Colorado Constitution a “final judgment” for the purposes of appeal under subsection 16-12-102(1). Our review of subsections (1) and (2) of section 16-12-102, taken as a whole and giving consistent, harmonious, and sensible effect to all the statutory language, also persuades us that an interlocutory appeal is not authorized under these circumstances. Accordingly, the prosecution’s reliance on section 16-12-102(1) as the source of our jurisdiction to review the district court’s interlocutory ruling is misplaced.

B.

Our jurisdictional inquiry does not end, however, with our conclusion that subsection 16-12-102(1) does not authorize this interlocutory appeal. An original proceeding under C.A.R. 21 can be utilized “to test whether the trial court is proceeding without or in excess of its jurisdiction, or to review a serious abuse of discretion when an appellate remedy would not be adequate.” People v. District Court of El Paso County, 790 P.2d 332, 334-35 (Colo.1990). We have exercised our,original jurisdiction under C.A.R. 21 when a pretrial interlocutory ruling significantly interfered with a party’s ability to litigate the merits of the case, People v. District Court of Colorado’s Seventeenth Judicial District, 793 P.2d 163, 166 (Colo.1990), and when appeal would not provide a plain, speedy, and adequate remedy, Weaver Construction Co. v. District Court, 190 Colo. 227, 230, 545 P.2d 1042, 1044 (1976). The granting of relief under C.A.R. 21 is discretionary. People v. District Court of Colorado’s Seventeenth Judicial District, 793 P.2d at 166; Coquina Oil Corp. v. District Court of the Ninth Judicial District, 623 P.2d 40, 41 (Colo.1981).

We recognized that appeal provided an inadequate remedy to the prosecution when we exercised our original jurisdiction to review trial court rulings declaring a former death penalty statute unconstitutional in People v. District Court, 196 Colo. 401, 586 P.2d 31 (1978). We stated that “[w]e have elected to address the issue in these cases because of the threshold question relating to the application of the death penalty in a number of pending cases in the Colorado courts.” Id. at 403, 586 P.2d at 32. In addition, we have authority on our own motion to suspend the rules of appellate procedure in a particular case in the interest of expediting decision or for other good cause shown. C.A.R. 2; Colorado Ass’n of Public Employees v. Department of Highways, 809 P.2d 988, 990 n. 1 (Colo.1991).⁴

The circumstances of this case lead us to conclude that we should exercise original jurisdiction. This case is the first request for appellate review of an issue of the constitutionality of the amended death penalty statute. Although we have considered certain constitutional issues in construing the statute’s predecessor, we have recognized that the statute was amended substantially in 1988. People v. Tenneson, 788 P.2d 786, 789 n. 2, 797 n. 17 (Colo.1990). The district court’s ruling that the death penalty sentencing statute presently in effect is facially invalid under the Colorado Constitution addresses a legal issue that can be finally resolved only by a decision of this court. See § 13-4-102(l)(b), 6A C.R.S. (1987) (cases in which constitutionality of a statute is in question are excepted from jurisdiction of Colorado Court of Appeals). Pending such a decision, the trial court’s ruling casts considerable doubt on the existence of an effective death penalty sentencing statute in Colorado. This situation necessarily creates confusion among prosecutors as to whether to seek the death penalty in particular cases and thereby invoke the complex and time-consuming procedures necessary to obtain a jury determination of the appropriateness of imposing a death sentence. See § 16-11-103, 8A C.R.S. (1986 & 1990 Supp.) (establishing procedures for determination of whether death penalty is to be imposed following determination of guilt in capital case). See also People v. District Court, 196 Colo. at 403, 586 P.2d at 32. It also subjects defendants to increased uncertainty concerning the validity of a death sentence, if imposed. If we decline to accept jurisdiction, the prosecution will be foreclosed from seeking the death penalty in this case even if the district court’s ruling were to be later overturned on appeal. See People v. Drake, 748 P.2d 1237 (Colo.1988) (errors in sentencing proceedings resulting in imposition of death sentence require remand for imposition of life sentence); People v. Durre, 690 P.2d 165 (Colo.1984) (same). Under these circumstances, we conclude that it is proper for this court to exercise its original jurisdiction pursuant to C.A.R. 21.

III.

The Colorado death penalty sentencing statute at issue here, section 16-11-103, 8A C.R.S. (1986 & 1990 Supp.), requires that a jury return a sentence of death for a person convicted of first-degree murder if it finds that at least one statutory aggravating factor has been proved beyond a reasonable doubt and that there are insufficient statutory mitigating factors or other mitigating circumstances to outweigh the statutory aggravating factors and any other aggravating circumstances. Section 16-11-103(2), 8A C.R.S. (1990 Supp.). Under this formulation, the statute requires that a jury sentence a defendant to death if the mitigators and ag-gravators are equally balanced. We hold that a sentence to death under those circumstances does not reflect the degree of certainty and reliability that the Colorado Constitution requires to support the imposition of the uniquely severe and irrevocable sentence of death. Accordingly, the statutory sentencing structure on its face violates the cruel and unusual punishments clause as well as the due process clause found, respectively, in article II, sections 20 and 25, of the Colorado Constitution.

A.

Some background concerning Colorado’s death penalty legislation and judicial decisions relating to such legislation will be helpful to place the questions raised in this case in proper focus. In People v. District Court, we struck down the Colorado death penalty statute then in effect because it did not allow the sentencing jury “to hear all the relevant facts relating to the character and record of the individual offender or the circumstances of the particular case,” as required by Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). 196 Colo. at 405, 586 P.2d at 34. Lockett held that unless the sentencer is permitted to hear and consider such evidence before imposing sentence, a sentence to death does not satisfy the eighth and fourteenth amendments to the United States Constitution. These facts relating to “the character and record of the individual offender” have been referred to in Colorado’s death sentence statutes as “mitigating factors” or “mitigating circumstances.” See People v. District Court, 196 Colo. at 405-06, 586 P.2d at 34-35; § 16-11-103, 8A C.R.S. (1986 & 1990 Supp.).

The general assembly then adopted new legislation in an attempt to “remedy the deficiencies in the prior statute and satisfy federal constitutional standards.” Tenneson, 788 P.2d at 790.⁵ This new legislation, reflecting all amendments adopted through 1985, is found in section 16-11-103, 8A C.R.S. (1986) (“pre-1988 statute”), and is the predecessor to the statute at issue in this case. It provided a four-step process for determining whether a defendant found guilty of a capital offense should receive a sentence of death or life imprisonment. We addressed the validity of jury instructions given under that statute in Tenneson, in which we described the statutory jury deliberation process in the sentencing phase as follows:

First, the jury must determine if at least one of the statutory aggravating factors exists. §§ 16-ll-103(2)(a)(I), -(6). If the jury does not unanimously agree that the prosecution has proven the existence of at least one statutory aggravator beyond a reasonable doubt, the defendant must be sentenced to life imprisonment. §§ 16-ll-103(l)(d), -(2)(b)(I), -(2)(c). Second, if the jury has found that at least one statutory aggravating factor has been proven, the jury must then consider whether any mitigating factors exist. §§ 16-ll-103(2)(a)(II), -(5).... Third, the jury must determine whether “sufficient mitigating factors exist which outweigh any aggravating factor or factors found to exist.” § 16-ll-103(2)(a)(II). Fourth, and finally, if the jury finds that any mitigating factors do not outweigh the proven statutory aggravating factors, it must decide whether the defendant should be sentenced to death or to life imprisonment. § 16-ll-103(2)(a)(III).

Id. at 789 (footnotes omitted).

In Tenneson we interpreted the pre-1988 statute “to require that in order to support the imposition of the death penalty, each juror must be convinced that the mitigating factors, if any, do not weigh more heavily in the balance than the proven statutory aggravating factors.” Id. at 792. We further stated that “[a]n instruction to the jury that they must be convinced beyond a reasonable doubt that any mitigating factors do not outweigh the proven statutory aggravating factors before a sentence of death can be imposed adequately and appropriately communicates the degree of reliability that must inhere in the balancing process.” Id. (emphasis added). As a final assurance of reliability, we held that the jury must be instructed that the fourth step of their deliberations should result in a death verdict “only if they unanimously agreed that death was the appropriate punishment beyond a reasonable doubt.” Ten-neson, 788 P.2d at 796.

In People v. Davis, 794 P.2d 159 (Colo.1990), this court rejected the contention that the death penalty was unconstitutional per se under the Colorado Constitution. Id. at 170-172. The majority opinion upheld the constitutionality of the death penalty under the pre-1988 statute against a variety of challenges. Id. at 172-189. This court then affirmed the imposition of the death penalty under the facts of Davis, and later did the same in People v. Rodriguez, 794 P.2d 965 (Colo.1990). See also People v. O’Neill, 803 P.2d 164 (Colo.1990) (reversing imposition of death penalty under pre-1988 statute).

In 1988, and before our decisions in Ten-neson, Davis and related cases, the legislature amended the death penalty sentencing statute in several respects. See Ch. 114, secs. 1-6, § 16-11-103, 1988 Colo.Sess. Laws 673, 673-75. The legislature specifically repealed former subsection 16-11-103(2)(a)(III), which had required the jury to return a verdict of death or life imprisonment based on the “considerations” of the aggravating factors that had been proved and the weighing of mitigating factors and aggravating factors previously-accomplished. Id., sec. 3. In Tenneson we held that subsection 16-ll-103(2)(a)(III) required the jury as a fourth and final step, independent of the others, to decide whether the defendant should be sentenced to death or life imprisonment. Tenneson, 788 P.2d at 789, 796.

The statute now requires only a three step process. It provides in relevant part as follows:

(2)(a) After hearing all the evidence and arguments of the prosecuting attorney and the defendant, the jury shall deliberate and render a decision based upon the following considerations:

(I) Whether at least one statutory aggravating factor has been proved beyond a reasonable doubt as enumerated in subsection (6) of this section; and

(II) Whether sufficient statutory mitigating factors or other mitigating circumstances exist which outweigh any statutory aggravating factor or factors and other aggravating circumstances. For purposes of this weighing process, the finder of fact shall consider statutory aggravating and mitigating factors and any other aggravating or mitigating circumstances supported by the evidence.

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[ (2)(b) ](III) In the event that the jury finds that at least one statutory aggravating factor has been proved beyond a reasonable doubt, and that there are insufficient statutory mitigating factors or other mitigating circumstances to outweigh any statutory aggravating factor or factors that were proved and any other aggravating circumstances that were proved, the jury shall return a sentence of death.

§§ 16-ll-103(2)(a)(I), (II), (2)(b)(III), 8A C.R.S. (1990 Supp.).⁶ Under this new three step process the jurors must return a sentence of death if they find the aggravators and mitigators to weigh equally in the balance. That is the clear import of section 16-ll-103(2)(b)(III), which requires a sentence of death if the mitigators are insufficient to outweigh the aggravators. We have been able to discover no legislative history shedding light on the purpose of the general assembly in eliminating the fourth step mandated by the pre-1988 statute — the requirement that the jurors determine whether the defendant should be sentenced to death or life imprisonment as the final step in their deliberations.

In the present case, the defendants moved to strike the death penalty from consideration, contending among other things that the elimination of the fourth step in the process for arriving at a death verdict results in a statute that facially violates the cruel and unusual punishments clause in article II, section 20, and the due process clause in article II, section 25, of the Colorado Constitution. The district court agreed, relying on Tenneson, and grounding its ruling solely on the Colorado Constitution.⁷ The question before us, therefore, is whether the elimination of step four deprives the statutory sentencing scheme of that degree of certainty and reliability essential to validity under the Colorado Constitution.

B.

Article II, section 20, of the Colorado Constitution prohibits the infliction of “cruel and unusual punishments.” Article II, section 25, of our state constitution provides that a person may not be deprived of life “without due process of law.” It is these constitutional requirements against which we must measure the death penalty sentencing provision at issue here.

The eighth amendment to the United States Constitution also prohibits “cruel and unusual punishments,” and the fourteenth amendment forbids any state to deprive any person of life “without due process of law.” The existence of federal constitutional provisions essentially the same as those to be found in our state constitution does not abrogate our responsibility to engage in an independent analysis of state constitutional principles in resolving a state constitutional question. This responsibility springs from the inherently separate and independent functions of the states in a system of federalism. See, e.g., Michigan v. Long, 463 U.S. 1032, 1037-42, 103 S.Ct. 3469, 3474-77, 77 L.Ed.2d 1201 (1983); Minnesota v. National Tea Co., 309 U.S. 551, 557, 60 S.Ct. 676, 679, 84 L.Ed. 920 (1940) (“It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions.”); see also People ex rel. Juhan v. District Court, 165 Colo. 253, 260-61, 439 P.2d 741, 745 (1968) (although a state may not deny a right guaranteed by the federal constitution, it may recognize additional rights in its own constitution).

We have recognized and exercised our independent role on a number of occasions and on several have determined that the Colorado Constitution provides more protection for our citizens than do similarly or identically worded provisions of the United States Constitution. See, e.g., People v. Oates, 698 P.2d 811 (Colo.1985) (rejecting the reasoning of United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), which construed the United States Constitution, and holding that warrantless installation of an electronic tracking device in a drum of chemicals prior to sale violated the purchaser’s right to protection against unreasonable searches under the Colorado Constitution); People v. Sporleder, 666 P.2d 135 (Colo.1983) (holding, in contrast to Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), construing the federal constitution, that warrantless installation of a pen register to record numbers dialed from defendant’s home telephone constituted an unreasonable search under the Colorado Constitution); Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980) (rejecting the rationale of United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), which construed the federal constitution, and holding that a bank customer has a reasonable expectation of privacy in bank records of the customer’s financial transactions for purposes of state constitutional protections against unreasonable searches); People v. Paulsen, 198 Colo. 458, 601 P.2d 634 (1979) (rejecting the double jeopardy analysis in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), in interpreting the state constitution to preclude a retrial of the defendant where the trial court erroneously entered post-jeopardy judgment of acquittal on grounds unrelated to factual guilt or innocence); Juhan, 165 Colo. 253, 439 P.2d 741 (rejecting due process analysis in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), which held an Oregon statute requiring an accused to prove sanity beyond a reasonable doubt to be constitutional under federal standards, and concluding that a Colorado statute requiring an accused to prove sanity by a preponderance of evidence violated the due process clause of the Colorado Constitution). Cf. Davis, 794 P.2d at 170-72 (evaluating challenges to the death penalty statute under the Colorado Constitution by applying Colorado law and using United States Supreme Court cases only for guidance); People v. Gutierrez, 622 P.2d 547 (Colo.1981) (analyzing cruel and unusual punishments challenge to the habitual criminal act separately under state and federal constitutional standards and concluding the statute did not violate either constitution). This history reflects our repeated recognition that the Colorado Constitution, written to address the concerns of our own citizens and tailored to our unique regional location, is a source of protection for individual rights that is independent of and supplemental to the protections provided by the United States Constitution.

C.

Although we are not bound by federal precedent in construing the provisions of the Colorado Constitution at issue in this case, we are persuaded by the reasoning of the United States Supreme Court cases that at a minimum the Colorado constitutional proscription of cruel and unusual punishments requires that any sentence to death be both certain and reliable. This requirement is based on the recognition that there is a qualitative difference between the penalty of death and all other penalties. See, e.g., Mills v. Maryland, 486 U.S. 367, 376, 108 S.Ct. 1860, 1866, 100 L.Ed.2d 384 (1988) (“In reviewing death sentences, the Court has demanded even greater certainty that the jury’s conclusions rested on proper grounds.”); California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3451-52, 77 L.Ed.2d 1171 (1983) (qualitative difference of death from all other punishments “requires a correspondingly greater degree of scrutiny of the capital sentencing determination”); Lockett, 438 U.S. at 604, 98 S.Ct. at 2964 (qualitative difference between death and other penalties “calls for a greater degree of reliability when the death sentence is imposed”); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion) (same). Our own cases have recognized that death is a uniquely severe and irrevocable penalty, and that in consequence, certainty and reliability are essential in procedures for determining the appropriateness of that penalty and in jury verdicts imposing it. People v. Rodriguez, 794 P.2d 965, 972 (Colo.1990), cert. denied, — U.S. -, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991); Tenneson, 788 P.2d at 792; Drake, 748 P.2d at 1254; Durre, 690 P.2d at 173.

Because the statute interpreted in Ten-neson reflected legislative efforts to satisfy federal constitutional standards, we drew on United States Supreme Court reasoning when we concluded that due to “[t]he qualitatively unique and irretrievably final nature of the death penalty” there is an “ ‘enhanced need for certainty and reliability’ in its application.” Tenneson, 788 P.2d at 792 (quoting Drake, 748 P.2d at 1254). We held, therefore, that under the third step required by the pre-1988 statute the jury “must be convinced beyond a reasonable doubt that any mitigating factors do not outweigh the proven statutory aggravating factors before a sentence of death can be imposed.” Tenneson, 788 P.2d at 792. We considered that under our sentencing scheme, “the beyond a reasonable doubt standard as applied to the weighing of aggravating and mitigating factors serves to assure the degree of reliability necessary to support a verdict of death in a sentencing proceeding.” Id., at 794.

We noted as well in Tenneson that the beyond a reasonable doubt standard as applied to step four of the jury’s deliberations — the final determination of whether death is appropriate if mitigating factors do not outweigh aggravating factors— would be of particular importance if the jurors were convinced that statutory aggravating factors and any mitigating factors were equally balanced. In such a circumstance, “it would be especially important that the jurors understand that the fourth step is separate and independent and requires that their ultimate conclusion that death is the appropriate penalty be reached only if they possess the degree of certainty that is communicated by the standard of beyond a reasonable doubt.” Ten-neson, 788 P.2d at 796. We were not required to decide, however, whether the fourth step was a constitutionally indispensable feature of the capital crime sentencing statute.

D.

We have held that the weighing of aggravating and mitigating factors differs fundamentally from the functions of a jury in finding facts and applying the law as instructed by the court. Tenneson, 788 P.2d at 791, 793-94. Consideration of the nature of the process of weighing aggravating and mitigating factors exposes the lack of reliability of a sentencing procedure that requires a sentence of death when those factors are in equipoise, in absence of any further required step.

In Tenneson, we stated that “ ‘[ujnlike the determination of guilt or innocence, which turns largely on an evaluation of objective facts, the question whether death is the appropriate sentence requires a profoundly moral evaluation of the defendant’s character and crime.’ ” Id., at 791 (quoting Satterwhite v. Texas, 486 U.S. 249, 261, 108 S.Ct. 1792, 1799, 100 L.Ed.2d 284 (1988) (Marshall, J., concurring in part and concurring in the judgment)). It is the consideration of aggravating factors and mitigating factors that guides the jury in making that evaluation. A conclusion by the jury that the aggravating factors are of greater weight is simply an expression of the jurors’ judgment that the moral evaluation that is the essence of the process of weighing aggravating and mitigating factors has caused each juror to conclude beyond a reasonable doubt that death is the appropriate sentence. See Tenneson, 788 P.2d at 792.

In order to return a sentence of death under section 16-11-103, 8A C.R.S. (1986 & 1990 Supp.), as under the pre-1988 statute, the jury must be satisfied beyond a reasonable doubt that the mitigating factors do not outweigh the aggravating factors. Id., at 792. However, under the current statute, and unlike the pre-1988 statute, if the jurors are convinced that aggravating and mitigating factors are equally balanced, the jury is required to return a sentence of death, for in those circumstances there would be insufficient mitigating factors to outweigh the aggravating factors. See § 16 — 11—103(2)(b)(III), 8A C.R.S. (1990 Supp.). The fourth step required by the pre-1988 statute — a jury determination that death is the appropriate sentence beyond a reasonable doubt — is no longer part of the process. In the situation of equal balance between aggravating and mitigating factors, jurors engaged in the profoundly moral evaluation of the defendant’s character and crime — expressed by the statute as a process of weighing aggravating and mitigating factors — will have concluded that the considerations suggesting that life imprisonment is the appropriate punishment weigh as heavily as those commending death. In other words, the jury would be unable to determine whether under statutory standards, death is the appropriate penalty.⁸

The result of a decision that the relevant considerations for and against imposition of the death penalty in a particular case are in equipoise is that the jury cannot determine with reliability and certainty that the death sentence is appropriate under the standards established by the legislature. A statute that requires a death penalty to be imposed in such circumstances without the necessity for further deliberations, as does section 16-ll-103(2)(b)(III), is fundamentally at odds with the requirement that the procedure produce a certain and reliable conclusion that the death sentence should be imposed. That such a result is mandated by statute rather than arrived at by a jury adds nothing to the reliability of the death sentence. The legislature has committed the function of weighing aggra-vators and mitigators to the jury. A jury determination that such factors are in equipoise means nothing more or less than that the moral evaluation of the defendant’s character and crime expressed as a process of weighing has yielded inconclusive results. A death sentence imposed in such circumstances violates requirements of certainty and reliability and is arbitrary and capricious in contravention of basic constitutional principles. Accordingly, we conclude that the statute contravenes the prohibition of cruel and unusual punishments under article II, section 20, of the Colorado Constitution, and deprives the defendant of due process of law under article II, section 25, of that constitution.

IV.

The prosecution relies on three recent cases decided by the United States Supreme Court in urging that the feature of the death penalty sentencing statute at issue in this case satisfies constitutional standards. Although those cases cannot control our decision because the issue before us is one of Colorado constitutional law, we are attentive to the Supreme Court’s reasoning, especially because the text of the cruel and unusual punishments clauses in the two constitutions are the same.

The United States Supreme Court has not addressed the constitutionality of a mandatory death penalty when the jury concludes that aggravating and mitigating factors are equally balanced. Two of the three recent cases relied on by the prosecution address mandatory imposition of a death sentence once the jury has reached the moral conclusion that aggravating factors prevail over mitigating factors in a particular case. See Boyde, 110 S.Ct. at 1196 (mandatory death sentence complies with eighth amendment proscription of cruel and unusual punishments if triggered by a finding that aggravating circumstances outweigh mitigating circumstances); Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 1083, 108 L.Ed.2d 255 (1990) (mandatory death sentence is consistent with eighth amendment proscription of cruel and unusual punishments when sentence to death requires a jury finding of at least one aggravating circumstance and no mitigating circumstances or a jury finding that aggravating circumstances outweigh mitigating circumstances). In Walton v. Arizona, — U.S. -, 110 S.Ct. 3047, 3056, 111 L.Ed.2d 511 (1990) (plurality opinion), the United States Supreme Court held that a mandatory death sentence is consistent with the eighth amendment if triggered by a finding that at least one aggravating circumstance exists and that there are no mitigating circumstances sufficiently substantial to call for leniency.⁹

Key to the United States Supreme Court rulings is the conclusion that a limitation on the class of persons eligible for the death penalty is constitutionally required and may be accomplished by a finding of at least one aggravating factor,¹⁰ and that a weighing of all relevant mitigating factors is constitutionally required before a sentence of death can be imposed on a particular individual. Walton, 110 S.Ct. at 3056 (plurality opinion); Boyde, 110 S.Ct. at 1196; Blystone, 110 S.Ct. at 1083. The basis for these requirements “is the principle that punishment should be directly related to the personal culpability of the criminal defendant.” Penry, 492 U.S. at 319, 109 S.Ct. at 2947. Thus, the Court in Penry stated

that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence. Only then can we be sure that the sen-tencer has treated the defendant as a “uniquely individual human bein[g]” and has made a reliable determination that death is the appropriate sentence.

Penry, 492 U.S. at 319, 109 S.Ct. at 2947 (quoting Woodson, 428 U.S. at 304, 96 S.Ct. at 2991) (citation omitted; brackets as in Penry). Constitutional sufficiency is not assured simply because the jury is not limited in the mitigating factors it may hear and consider. The sentencer must also determine whether those mitigating factors are outweighed by the aggravating factors, Boyde, 110 S.Ct. at 1196; Blystone, 110 S.Ct. at 1083, or, stated alternatively, are sufficient to call for leniency, Walton, 110 S.Ct. at 3056. We find nothing in the reasoning in the United States Supreme Court cases cited that casts doubt on our conclusion that the Colorado death penalty statute fails to satisfy our own constitutional standards. We do not believe that the United States Supreme Court cases can be fairly read to contain any suggestion that the death penalty can be imposed when the sentencer finds aggravating and mitigating considerations to be equally balanced.¹¹ Even if we are wrong in our understanding of federal precedent, however, we hold that to authorize imposition of the death penalty when aggravators and mitigators weigh equally, as does the current version of section 16-11-103, violates fundamental requirements of certainty and reliability under the cruel and unusual punishments and due process clauses of the Colorado Constitution.

V.

The Colorado death penalty statute as amended in 1988 mandates imposition of the death penalty when the jury decides that aggravating and mitigating factors are equally balanced. Because we conclude that such a statute does not assure a constitutionally certain and reliable verdict of death under the Colorado Constitution, we are persuaded that section 16-11-103 is invalid on its face. Exercising our original jurisdiction under C.A.R. 21, we discharge the rule.

QUINN, J., specially concurs. ROVIRA, C.J., concurs in part and dissents in part, and ERICKSON and VOLLACK, JJ., join Rovira’s, C.J., dissent only.

ERICKSON, J., dissents and VOLLACK, J., joins in the dissent.

1 . § 18-3-102, 8B C.R.S. (1986 & 1990 Supp.).

2 . The district court did not rule on the adequacy of the sentencing statute under federal constitutional standards.

3 . The People understandably do not argue that this interlocutory appeal is authorized under subsection 16-12-102(2), for subsection 16-12-102(2) specifically delineates the types of rulings from which an interlocutory appeal may be taken, and the interlocutory appeal of a ruling declaring the death penalty statute unconstitutional is not included among them.

4 . Ordinarily, in a proceeding under C.A.R. 21 the district court would be named as a respondent. See C.A.R. 21(d). The defendants in the district court are the real parties interested in sustaining the district court’s ruling, and ultimately we determine that the district court’s ruling must be upheld. Under these circumstances, we do not consider it necessary to make the district court a formal party to this proceeding. We consider this procedure to be within our authority under C.A.R. 2.

5 . We noted in Tenneson that to satisfy minimum federal standards, first, "[t]he statutory scheme 'must "genuinely narrow the class of persons eligible for the death penalty,” ’" Tenneson, 788 P.2d at 790 (quoting Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988), in turn quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983)), and second, "a capital sentencing scheme must allow the sentencing body to consider any relevant mitigating evidence regarding the defendant's character and background and the circumstances of the offense," Tenneson, 788 P.2d at 790 (citing, e.g., Boyde v. California, 494 U.S. 370, -, 110 S.Ct. 1190, 1195-96, 108 L.Ed.2d 316 (1990); Penry v. Lynaugh, 492 U.S. 302, 318, 109 S.Ct. 2934, 2946, 106 L.Ed.2d 256 (1989)). We recognized that the class may be narrowed by requiring a finding of aggravating circumstances. Tenneson, 788 P.2d at 790.

6 . The 1988 amendments added “other aggravating circumstances" to the statutory list of "aggravating factors” in describing the matters to be taken into account in the balancing process. The pre-1988 statute limited the aggravating factors the jury was to take into account to those enumerated in subsection § 16-11-103(6) and required that those statutory aggravators be proved beyond a reasonable doubt. Under the amended statute, the finder of fact is to consider as well any “aggravating ... circumstances supported by the evidence ” (emphasis added). §§ 16-11-103(2)(a)(II), 8A C.R.S. (1990 Supp.). The 1988 amendments also require that "[a]ll evidence ... that is relevant to and probative of the nature of the crime, and the character, background, and history of the defendant, ... and any matters relating to any of the aggravating or mitigating factors or circumstances shall be received.” §§ 16-ll-103(l)(b), 8A C.R.S. (1990 Supp.). The pre-1988 statute had provided that "[a]ll admissible evidence ... that the court deems relevant to the nature of the crime, and the character, background, and history of the defendant, including ... any matters relating to any of the aggravating or mitigating factors enumerated in ... this section may be presented” (emphasis added). §§ 16-ll-103(l)(b), 8A C.R.S. (1986).

In this case the trial court held that § 16 — 11— 103 is unconstitutional because of the elimination of the fourth step required under the pre-1988 statute as construed in Tenneson. It did not discuss the other changes in the statute. Because the trial court based its holding on the elimination of the fourth step, the constitutionality of the other changes, including the aggravating factors and circumstances the jury must consider, the burden of proof required regarding aggravating circumstances, and the evidence admissible to prove aggravating factors and circumstances, is not before us in this case.

7 . The trial court held that the statute violates the Colorado Constitution. The court did not specifically refer to sections 20 and 25 of article II of the Colorado Constitution in its ruling. The defense motions leading to that ruling, however, challenged the constitutionality of the death penalty statute on the basis of those provisions.

8 . The fourth step, mandated by the pre-1988 statute, required that the jurors continue their deliberations after balancing aggravating and mitigating factors and specifically focus on whether the defendant should be sentenced to death or life imprisonment. § 16 — 11—103(2)(a)(III) (1986). Only if this further consideration of the defendant’s character and crime resulted in a conclusion beyond a reasonable doubt that the defendant should be sentenced to death could such a sentence be returned. Tenneson, 786 P.2d at 796. This we considered necessary "to communicate to the jurors the degree of confidence they must have in their ultimate conclusion before they can return a verdict of death.” Id. This fourth step provided essential assurance, absent from the present sentencing scheme, that the requisite moral evaluation of the defendant’s character and crime had been fully performed by each juror.

9 . In Justice Blackmun’s dissent, in which three other justices joined, he reads the Arizona statute and the cases decided under it to require the trial court to impose a death sentence "[i]f the mitigating and aggravating circumstances are in equipoise.” Walton, 110 S.Ct. at 3075. He concludes that this "runs directly counter to the Eighth Amendment requirement that a capital sentence must rest upon a ‘determination that death is the appropriate punishment in a specific case.’” Id. 110 S.Ct. at 3075 (quoting Woodson v. North Carolina, 428 U.S. at 305, 96 S.Ct. at 2991 (plurality opinion)). The plurality opinion in Walton does not discuss the possibility of an equal balance between aggravating and mitigating circumstances.

It is noteworthy that under Arizona's capital sentencing statutes, a judge rather than a jury performs the weighing of aggravating and mitigating circumstances, Walton, 110 S.Ct. at 3051, whereas a jury performs that function in Colorado unless a jury trial is waived. A more structured procedure to guarantee a reliable verdict may be necessary under jury sentencing. See Walton, 110 S.Ct. at 3057; Tenneson, 788 P.2d at 792.

10 . In Gregg v. Georgia, 428 U.S. 153, 159, 96 S.Ct. 2909, 2918, 49 L.Ed.2d 859 (1976), the United States Supreme Court stated that sentencing “discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Then, in Lowenfield, 484 U.S. at 244, 108 S.Ct. at 554 the Court noted that "[t]he use of ‘aggravating circumstances’ is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling the jury’s discretion."

11 . Although the issue is not before us because the trial court based its ruling only on the elimination of the fourth step required under the pre-1988 statute, we note that unlike the Colorado death penalty statute, the three United States Supreme Court cases relied upon by the prosecution dealt with schemes that limited the aggravating factors the jury was to consider by specifically enumerating the aggravating factors. Walton, 110 S.Ct. at 3051; Boyde, 110 S.Ct. at 1194 n. 1; Blystone, 110 S.Ct. at 1085 n. 1 (Brennan, J., dissenting). None dealt with schemes that permitted the jury to consider “other aggravating circumstances” in determining whether death was the appropriate penalty. In addition, none of these cases allowed aggravating factors or circumstances to be considered when they were merely "supported by the evidence” and where the evidence to be received by the court in determining the sentence did not have to meet admissibility requirements. Walton, 110 S.Ct. at 3052-53 (statute places burden on prosecution to prove aggravating factors and state supreme court has interpreted the burden of proof to be "beyond a reasonable doubt”); Boyde, 110 S.Ct. at 1194 n. 1 (challenged jury instruction limits factors to be considered by the jury to those supported by "evidence which has been received during any part of the trial of this case”); Blystone, 110 S.Ct. at 1085 (statute requires that prosecution "prove the existence of aggravating circumstances beyond a reasonable doubt”) (Brennan, J. dissenting).