People v. Davis , 794 P.2d 159 ( 1990 )

Justice LOHR

dissenting:

The unique severity and finality of the death penalty require a heightened level of reliability and certainty in capital sentencing. Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 1870, 100 L.Ed.2d 384 (1988); Lowenfield v. Phelps, 484 U.S. 231, 238-39, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2963, 57 L.Ed.2d 973 (1978); People v. Tenneson, 788 P.2d 786, 791 (Colo.1990). In Tenneson, we held that Colorado’s death sentencing statute should be construed in light of this strong concern for reliability and certainty. Tenneson, at 792.

The Colorado death penalty statute, § 16-11-103, 8A C.R.S. (1986), establishes a four-step process for jury deliberation in the penalty phase. First, the jury must determine whether the prosecution has proven the existence of at least one statutory aggravating factor beyond a reasonable doubt. §§ 16-ll-103(2)(a)(I), -(6). Second, if the jury finds that at least one statutory aggravating factor exists, the jury must then consider whether any mitigating factors exist. § 16-ll-103(2)(a)(II), -(5). Third, the jurors must determine whether the prosecution has convinced them beyond a reasonable doubt that any mitigating factors do not outweigh the statutory aggravating factor or factors previously found to exist. Tenneson, at 795. Fourth, and finally, if the jury finds beyond a reasonable doubt that any mitigating factors do not outweigh the proven statutory aggravating factors, the jurors must then decide whether the prosecution has convinced each of them beyond a reasonable doubt that the defendant should be sentenced to death. Id. at 796.

Because I believe that the jury instructions given in the penalty phase of Gary Lee Davis’s trial contained numerous errors, affecting the jury deliberations at several stages, I respectfully dissent. I join in parts 11(A) and (B), IV, and much of what is said in parts III¹ and V² of Chief Justice Quinn’s dissenting opinion, but write separately to express my views more fully and to dissent on further grounds.

I.

Penalty phase instruction no. 3 presented three erroneous aggravators to the jury: the especially heinous, cruel or depraved aggravator, the under sentence of imprisonment aggravator, and the felony murder aggravator.

A.

The trial court submitted to the jury the statutory aggravating factor that “[t]he defendant committed the offense in an espe-daily heinous, cruel, or depraved manner.” See § 16-ll-103(6)(j), 8A C.R.S. (1986). The majority acknowledges that this statutory aggravator is unconstitutionally vague under the United States Supreme Court’s holding in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), but concludes that its erroneous submission to the jury was harmless beyond a reasonable doubt. Maj. op. at 176-180. The majority concludes that the jury would have returned a death sentence if it had been given an especially heinous, cruel or depraved aggravator instruction that incorporated constitutionally-sufficient narrowing definitions of those terms. Maj. op. at 180. I agree with Chief Justice Quinn that such a conclusion is no more than a guess as to what the jury might have decided had it been properly instructed.

Although the United States Supreme Court has held that it is permissible under the federal constitution for a state appellate court to uphold a death sentence in a case such as this by applying a harmless error analysis, Clemons v. Mississippi, — U.S. -, -, 110 S.Ct. 1441, 1456, 108 L.Ed.2d 725 (1990), such an approach is inconsistent with Colorado’s statutory scheme. In Colorado, the jury is responsible for weighing aggravators and miti-gators. Its decision is not merely advisory as it is in some other states. E.g., Fla.Stat. Ann. § 921.141(2) (1985). The Colorado legislature did not contemplate that appellate courts would weigh reformulated aggravating factors against mitigating factors to determine whether a properly instructed jury would have concluded that the death sentence was appropriate. The jury that hears the testimony and views the witnesses is uniquely able to make the difficult moral judgments required in weighing aggravating and mitigating factors and determining whether the death sentence is warranted.

Furthermore, I agree with Chief Justice Quinn that harmless error analysis in this case requires a finding beyond a reasonable doubt that the error did not substantially influence the verdict or affect the fairness of the proceedings. I am unable to conclude beyond a reasonable doubt that the jurors were unaffected by the erroneous instruction.

B.

Because at the time of the murder Davis was on parole for first degree sexual assault, the trial court instructed the jury on the aggravating factor that “[t]he class 1 felony was committed by a person under sentence of imprisonment for a class 1, 2 or 3 felony as defined by Colorado law.” See § 16 — 11—103(6)(a), 8A C.R.S. (1986) (emphasis added). I am unpersuaded by the majority’s contention that this aggravator was intended to include persons on parole.

Our interpretation of criminal statutes is guided by several principles. Three are of particular relevance here. First, when a penal code statute is ambiguous, a court should interpret it in light of the principle of lenity, which requires the court to adopt the construction that favors the defendant. People v. Lowe, 660 P.2d 1261, 1267 (Colo.1983). Second, the court should look to the legislative history in an effort to determine the legislative intent. Civil Rights Comm’n v. North Washington Fire Protection Dist, 772 P.2d 70, 78 (Colo.1989). I agree with Chief Justice Quinn that the legislative history surrounding section 16-ll-103(6)(a) demonstrates the legislature’s intent to cover persons in prison and that the legislature’s subsequent expansion of this aggravator indicates a legislative desire to change the preexisting law. Third, the court should construe the statute in light of its purpose. Olinyk v. People, 642 P.2d 490, 494 (Colo.1982). Although the majority acknowledges that one of the purposes for this aggravator was to provide an additional deterrent for persons already in prison, the majority contends that this ag-gravator was also intended to provide further deterrence for persons on parole who, by their previous criminal activity, have demonstrated that they are insufficiently deterred by penal sentences. Maj. op. at 181-182. The majority is unable to point to support for this contention in the legislative history. Furthermore, this purpose is more properly viewed as the motivating force behind the statutory aggravator of prior felony convictions. See § 16 — 11—103(6)(b).³

C.

The trial court submitted both the kidnapping statutory aggravator, § 16 — 11—103(6)(d), and the felony murder aggravator, § 16 — 11—103(6)(g), to the jury. Because the kidnapping conviction is the predicate felony for the felony murder ag-gravator,⁴ the submission of both of these aggravators to the jury amounted to unconstitutional double-counting of a single aspect of the crime. I agree with Chief Justice Quinn that by presenting the same aggravating circumstance to the jury twice, the instructions artificially inflated the importance of that single factor and undermined the constitutional requirement that a capital sentencing law must be tailored and applied to avoid the arbitrary and capricious infliction of the death penalty. The majority argues that because the jury was instructed that the weight of each factor rather than the number of factors was important, the double-counting was of no legal significance. This ignores the likelihood that jurors are in fact influenced by the number of aggravators presented as well as the weight they assign to those factors.⁵ Courts in several states have found such double-counting to be impermissible despite statutory schemes that theoretically make the number of aggravating factors legally irrelevant. Cook v. State, 369 So.2d 1251, 1256 (Ala.1979); People v. Harris, 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433, 449 (1984); Provence v. State, 337 So.2d 783, 786 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977); State v. Rust, 197 Neb. 528, 250 N.W.2d 867, 874, cert. denied, 434 U.S. 912, 98 S.Ct. 313, 54 L.Ed.2d 198 (1977); State v. Goodman, 298 N.C. 1, 257 S.E.2d 569, 587 (1979); State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264, 296-97 (1984).

II.

The federal constitution requires capital sentencing statutes to permit the sentencing body to consider any relevant mitigating circumstances regarding the defendant’s character and background, and the circumstances of the offense. Boyde v. California, — U.S. -, -, 110 S.Ct. 1190, 1195-96, 108 L.Ed.2d 316 (1990); Penry v. Lynaugh, — U.S. -, 109 S.Ct. 2934, 2946, 106 L.Ed.2d 256 (1989). The instructions in this case that were designed to ensure fulfillment of that constitutional requirement were fatally flawed in two respects: they are susceptible of an interpretation that jurors must unanimously agree on the existence of mitigating factors and that the jurors are prohibited from considering the defendant’s allocution.

A.

I agree with Chief Justice Quinn that there was a constitutionally impermissible risk that the jurors may have thought that they had to agree unanimously upon the existence of mitigating factors before considering them in the weighing required in step three of their deliberations. Such a requirement is constitutionally impermissi-

ble. McKoy v. North Carolina, — U.S. -, -, 110 S.Ct. 1227, 1233-34, 108 L.Ed.2d 369 (1990); Mills v. Maryland, 486 U.S. 367, 384, 108 S.Ct. 1860, 1879, 100 L.Ed.2d 384 (1988).

Instruction no. 5 provided in pertinent part:

If in the first two steps of your deliberations you have made unanimous findings that the prosecution has proven beyond a reasonable doubt that one or more aggravating factors exist and that no mitigating factors exist, or that a mitigating factor or factors exist, you must now decide whether the prosecution has proven that any factors in aggravation outweigh any factors in mitigation.

(Emphasis added.)

The majority asserts that the following portion of the same instruction adequately clarifies this ambiguous statement:

If all, or one or more of the jurors believe that a mitigating factor or factors outweigh the aggravating factor or factors found to exist, then the jury shall enter a verdict of life imprisonment.

I am at a loss to see why this would dispel the impression created by the earlier portion of the instruction that the jury must make unanimous findings as to the existence of mitigating factors. The majority’s interpretation would only be plausible if the jury deliberations had been structured as a three-step process in which the jury would first determine if any statutory aggravators existed, then weigh any miti-gators against the proven statutory aggra-vators and finally determine if the death sentence was appropriate. In this case, however, the jury was explicitly instructed to follow a four-step process, which included an additional step requiring the jury to determine whether any mitigating factors existed. In this four-step process, the existence of mitigators is determined in step two and the weight assigned to those miti-gators found to exist is determined in step three. The portion of the instruction that the majority relies upon governs only the weight assigned to mitigators during step three. If a juror has already interpreted the previous portion of the instruction to require a unanimous determination of which mitigating circumstances exist, then that juror would interpret the language relied on by the majority only to allow jurors to make their own determinations regarding the weight of those mitigating factors unanimously agreed upon in step two.

Given the ambiguity of this instruction, and the necessarily high level of reliability required in the penalty phase of a capital trial, I am unable to conclude that no reasonable juror could have interpreted this instruction in a constitutionally impermissible manner to require a unanimous finding that a particular mitigating factor existed before that factor could be taken into consideration in the weighing process.

B.

In this case the defendant exercised his right to allocution. The defendant argues that the trial court’s instructions may have led the jurors to believe that they were not allowed to consider the allocution in mitigation.

The United States Constitution requires that a capital sentencing scheme allow the sentencing body to consider any relevant mitigating circumstances regarding the defendant's character and background and the circumstances of the offense. E.g., Boyde, at -, 110 S.Ct. at 1195-96; Penry, 109 S.Ct. at 2946; Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 1670, 90 L.Ed.2d 1 (1985). The majority acknowledges that the defendant was constitutionally entitled to have the jury consider his allocution as it might be relevant to mitigation. Maj. op. at 192.

The question in this case is whether the jurors may have interpreted instruction no. 1 to preclude them from considering the defendant’s allocution. The standard is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde, at -, 110 S.Ct. at 1198.⁶

Instruction no. 1 states in pertinent part:

During the course of the trial and penalty hearing you received all the evidence that you may properly consider to decide the case. Your decision must be made by applying the rules of law which I give you to the evidence presented.

It is your duty to determine the facts from the evidence you have heard during the entire trial including any additional evidence presented during the penalty phase hearing_

When I told you not to consider a particular statement, you were told to put the statement out of your mind, and you may not consider any statement in your deliberations which you were instructed to disregard. The unsworn statement of the defendant is not evidence.

Finally, you should consider all the evidence in the light of your observations and experiences in life.

(Emphasis added.) In closing argument, as well, the prosecutor told the jury that un-sworn statements are not evidence.

The majority simply concludes that there is not a reasonable likelihood that any juror could have applied the instruction to prevent consideration of the defendant’s allo-cution. Maj. op. at 193. I disagree. The repeated references to the jury’s duty to consider the evidence, combined with the instruction’s statement that the defendant’s allocution is not evidence, created an unacceptable risk that a juror would have felt prohibited from considering the allocution.

III.

I would also hold that the instructions and verdict form in this case do not comply with the requirements we enunciated in People v. Tenneson, 788 P.2d 786 (Colo.1990). In Tenneson, we held that the prosecution must convince the jury beyond a reasonable doubt that any mitigating factors do not outweigh the proven statutory aggravating factors and that death is the appropriate penalty. The instructions given in the present case are inconsistent and confusing concerning the prosecution’s burden in the step three weighing process.

Several of the instructions are relevant. Instruction no. 2 outlined the four-step process required by the Colorado statute. It began with a brief overview of the prosecution’s burden:

Colorado law allows the death penalty only if the prosecution ... proves beyond a reasonable doubt that:

1. One or more of the specified aggravating factors exist beyond a reasonable doubt; and

2. No mitigating factor or factors outweigh the aggravating factor or factors found to exist beyond a reasonable doubt; and

3. Death is the appropriate punishment in this ease.

This statement of the law is consistent with Tenneson. This instruction then set forth a series of paragraphs discussing each of the four steps in greater detail. The first paragraph explained that during the first stage of the jury deliberations the jury must find beyond a reasonable doubt that at least one specified aggravator exists. The next paragraph explained that during the second step the jury must consider whether any mitigating factors exist. The paragraph explaining step three of the jury’s deliberations stated in pertinent part “[i]f and only if the jury finds that one or more specified aggravating factors outweigh the mitigating factors, the jury then should proceed to the fourth step.” The paragraph discussing the fourth step in the jury deliberation instructs the jury that the prosecution must prove beyond a reasonable doubt that death is the appropriate penalty.

The penalty phase instructions included other instructions explaining in greater detail the stages of the jury deliberations. Instruction no. 5 dealt specifically with the third step of the jury deliberations, but did not mention the beyond a reasonable doubt burden. It stated in pertinent part:

If all jurors unanimously agree that the aggravating factor or factors found to exist outweigh the mitigating factor or factors or that there are not mitigating factors, then you shall continue your deliberations in accordance with these instructions.

Instruction no. 7 provided further clarification of the fourth step in the jury’s deliberation. It stated “[i]f in the third step of your deliberations you have made unanimous findings that the aggravating factor or factors found to exist outweigh the mitigating factors or that there are no mitigating factors, you must now decide whether the defendant should be sentenced to death or life imprisonment.”

The verdict form also omitted any reference to the beyond a reasonable doubt burden applicable to weighing aggravating and mitigating factors. It stated in pertinent part:

We, the jury, find that there are insufficient mitigating factors to outweigh the aggravating factor or factors which have been proven by the prosecution beyond a reasonable doubt.

In Tenneson, we wrote “[t]he qualitatively unique and irretrievably final nature of the death penalty ‘makes it unthinkable for jurors to impose the death penalty when they harbor a reasonable doubt as to its justness.’ ” Tenneson, at 791-92 (quoting State v. Bey, 112 N.J. 123, 548 A.2d 887, 903 (1988)). We emphasized the enhanced need for certainty and reliability in death sentencing procedures. Id. at 792; see also People v. Drake, 748 P.2d 1237, 1254 (Colo.1988); People v. Durre, 690 P.2d 165, 173 (Colo.1984). Although in the initial overview provided in instruction no. 2 the trial court correctly instructed the jury that they must be convinced beyond a reasonable doubt that any mitigating factors do not outweigh the proven statutory aggravating factors, the instructions failed to include the beyond a reasonable doubt requirement in the three places where the jury was given detailed instruction as to its step three weighing deliberations. The verdict form also failed to include this requirement. I would hold that those omissions created an unacceptable risk that the jury did not consider the appropriate burden.

IV.

Given the profoundly serious nature of the death penalty and the heightened reliability we have consistently required in death sentencing procedures, I would hold that each of the errors discussed above sufficiently undermines the fairness and certainty of the death sentence returned in this case to require reversal. I also agree with Chief Justice Quinn that the cumulative effect of these errors further underscores the need for reversal. I would reverse the sentence of death and return the case to the trial court with directions to impose a sentence of life imprisonment.

1 . See n. 3, below.

2 . Part V of Chief Justice Quinn’s dissenting opinion relies in some measure on parts I, 11(C) and an argument in part III that I do not join.

3 . Chief Justice Quinn would hold that the majority’s construction of § 16-ll-103(6)(a) is "in derogation of the constitutional requirement of narrowing the class of persons eligible for the death sentence.” Quinn, C.J., dissenting, slip op. at 220. I would not reach this issue and do not join in that view expressed in part III of the Chief Justice’s dissenting opinion.

4 . The verdict form specifies that second-degree kidnapping is the predicate felony for this ag-gravator. In the prosecutor's closing argument, however, he asserted that there were three predicates to the felony murder aggravator: second-degree kidnapping, conspiracy to commit first-degree murder, and conspiracy to commit second-degree kidnapping. Because the party to an agreement to kill aggravator, § 16 — 11—103(6)(e), was also submitted to the jury, a felony-murder aggravator that had conspiracy to murder as its predicate would double-count a single aspect of the defendant’s crime.

Although the majority opinion states that Davis raped and sexually assaulted the victim, Davis was never charged with or convicted of these crimes.

5 . Moreover, in closing argument the prosecutor emphasized the number of aggravating factors.

6 . As the majority notes, Boyde "used the term 'evidence’ in a non-technical sense to include all material and circumstances relevant to the jury’s sentencing decision." Maj. op. at 193 n. 30.