People v. Dunaway , 88 P.3d 619 ( 2004 )

Justice BENDER,

concurring in Part III.A.,¹ but dissenting to Part III.B., and dissenting in the judgment:

The majority rejects eighteen years of Colorado precedent by declaring that it does not offend constitutional principles of due process of law to submit an alternative theory of culpability for a charged crime that is not supported by sufficient evidence to find guilt beyond a reasonable doubt. The majority adopts the rationale of Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), despite that decision’s flawed rationale and despite ample Colorado authority to the contrary set forth in James v. People, 727 P.2d 850 (Colo.1986), and post-Griffin Colorado appellate cases following James.

A conviction should never be based on a factually inadequate theory of culpability. To hold otherwise dilutes the bedrock constitutional principle of proof beyond a reasonable doubt, which is guaranteed by the due process clause of our state constitution. Because the course taken by the majority today violates the guarantees and protections of our state constitution, I respectfully dissent.

In James we held, “When a verdict of guilty is returned on a general verdict form, the lack of sufficient evidence to support a guilty verdict based on one alternative requires that the entire verdict be set aside.” 727 P.2d at 855. To reach this holding, we cited the long-settled rule that when alternative theories of culpability are submitted to a jury, the unconstitutionality of any theory requires the conviction to be set aside. Id. at 853 (relying on Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)). Thus, we concluded that it is unconstitutional to submit a theory of culpability to a jury that is not supported by “sufficient evidence to enable the jury to find [guilt] beyond a reasonable doubt.” Id. Because the due process clause of our constitution, like that of the federal constitution, mandates that each element of a criminal charge must be proven by proof beyond a reasonable doubt, when an alternative theory of guilt is not supported by sufficient evidence, “there can be no assurance that [a] general verdict is based upon'that constitutional standard mandated by the due process clauses of both the federal and state constitutions.” Id.; see also People v. Gonzales, 666 P.2d 123, 127 (Colo.1983); People ex rel. Juhan v. District Court, 165 Colo. 253, 257, 439 P.2d 741, 744 (1968).

This concern cannot be dismissed lightly. The reasonable doubt standard constitutes a cornerstone of our criminal jurisprudence because it protects our most fundamental concepts of justice. The reasonable doubt standard is “indispensable to command the respect and confidence of the community in applications of the criminal law.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). It gives “concrete substance to the presumption of innocence” by reducing the risk of convictions based on factual error. Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (internal quotation marks omitted). And, as Justice Harlan famously observed in his concurrence in In re Winship, the reasonable doubt standard embodies “a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” 397 U.S. at 372, 90 S.Ct. 1068.

Even before the United States Supreme Court recognized that the reasonable doubt standard is guaranteed by the due process clause of the federal constitution, we held that proof beyond a reasonable doubt is “a principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental,” and thus guaranteed by the due process clause of our state constitution. People ex rel. Juhan, 165 Colo, at 262, 439 P.2d at 746 (internal quotation marks omitted). We have since reaffirmed that principle in James and other cases, which recognize that the reasonable doubt standard cannot be satisfied where a jury is instructed on a theory that is not supported by the evidence and returns a general verdict of guilt. See, e.g., People v. Rodriguez, 914 P.2d 230, 273 (Colo.1996) (“[Bjecause the jury returned only a general verdict, the prosecution must have proved each alternative beyond a reasonable doubt.”) (emphasis in original); People v. Hall, 60 P.3d 728, 734 (Colo.App.2002) (analyzing the meaning of due process under Colorado law); People v. Hansen, 972 P.2d 283, 285 (Colo.App.1998); People v. Hanson, 928 P.2d 776, 780 (Colo.App.1996).

Despite our long-established understanding of the meaning of due process under our state constitution and our recognition that the reasonable doubt standard is a fundamental constitutional guarantee, the majority adopts the reasoning and rule of Griffin solely because James rests in part on federal due process grounds. See maj. op. at p. 630. In Griffin, the defendant was charged with multiple-object conspiracy. The facts established that she conspired to impair the efforts of the IRS to ascertain income taxes but not to impair the efforts of the DEA to identify forfeitable assets. Nonetheless, the jury was instructed that it could find the defendant guilty if it found the defendant had participated in either object of the conspiracy, and the jury returned a general verdict of guilt.

The Court upheld the verdict and dismissed the argument that a jury instruction that includes a factually inadequate theory of culpability violates due process. The Court reviewed a line of cases that applied the rule of Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), and found them all distinguishable from the facts of Griffin. The defendant in Stromberg was accused of violating a California statute that prohibited the display of a red flag as a symbol of opposition to organized government, an invitation to anarchistic action, or an aid to seditious propaganda. Stromberg, 283 U.S. at 361, 51 S.Ct. 532. The Court held that a general verdict finding the defendant guilty of violating the statute must be overturned because the first ground of conviction was unconstitutional, and a general verdict did not allow a reviewing Court to determine the ground upon which the verdict was decided. Id. at 368, 51 S.Ct. 532.

This rule was applied in Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), to set aside a general verdict where the jury was instructed on alternative theories of liability, one of which was barred by the statute of limitations. See id. at 312, 77 S.Ct. 1064. The Yates Court applied Stromberg and held that in circumstances “where the verdict is supportable on one ground, but not another, and it is impossible to tell which ground the jury selected,” the verdict must be set aside. Id

The Court distinguished these cases from Griffin, on the ground that “one of the possible bases of conviction [in Griffin ] was neither unconstitutional, as in Stromberg, nor even illegal as in Yates, but merely unsupported by sufficient evidence.” Griffin, 502 U.S. at 56, 112 S.Ct. 466. Where a possible basis of a conviction is “merely unsupported by sufficient evidence,” the Court concluded that a jury can be trusted to assess the evidence correctly and apply it appropriately. See id. at 59, 112 S.Ct. 466. If that means tolerating some risk that a conviction will be based on something less than proof beyond a reasonable doubt, the Court found that risk “remote” and tolerable. See id.

In my view, the Court’s analysis entirely misses the mark. The distinction drawn in Griffin between an instruction that allows a jury to convict on a ground not supported by sufficient evidence and one that allows a jury to convict on an unconstitutional ground is illusory. See Griffin, 502 U.S. at 56, 112 S.Ct. 466. An instruction that allows a jury to convict on a ground not supported by sufficient evidence is itself unconstitutional, as we made clear in James, because it violates the requirement of the due process clause that a conviction must be based on proof beyond a reasonable doubt.

When evaluating the validity of a general verdict of guilt, our concern should be whether the verdict adheres to this standard, not whether there is a “remote” chance that the jury applied the evidence to the wrong theory of culpability. From that point of view, any general verdict that might rest on a factually inadequate basis is constitutionally infirm because it violates the requirements of due process. See James, 727 P.2d at 853; see also Jackson v. Virginia, 443 U.S. at 316, 99 S.Ct. 2781 (judgments not supported by proof beyond a reasonable doubt are invalid as a matter of law and must be set aside under the Due Process Clause of the Fourteenth Amendment).

Griffin contravenes this principle and thus should not be adopted by this Court. As the majority recognizes, we are free to interpret our state constitution in a manner that deviates from the United States Supreme Court’s interpretation of the federal constitution. See maj. op. at p. 630 (citing People v. Dist. Court, 834 P.2d 181, 193 (Colo.1992); see also People ex rel. Juhan, 165 Colo, at 260-61, 439 P.2d at 745 (“There is not the slightest requirement that the meaning of ‘due process of law* shall be the same in each of the fifty states.”). The meaning of due process under our state constitution is clear. Both before and after James, all criminal convictions must be based on proof beyond a reasonable doubt. See People ex rel. Juhan, 165 Colo. 253, 439 P.2d 741, 746 (1968); People v. Rodriguez, 914 P.2d 230 (Colo.1996); People v. Hall, 60 P.3d 728 (Colo.App.2002); People v. Hansen, 972 P.2d 283, 285 (Colo.App.1998); People v. Hanson, 928 P.2d 776, 780 (Colo.App.1996). Griffin is contrary to our long-established understanding of due process of law and undermines the principle that criminal convictions must be based on proof beyond a reasonable doubt. Thus, we should now depart from the federal rule and adhere to our own precedent.

In this case, the jux-y was instructed that the defendant could have committed child abuse by “causing] an injury to a child, or ... permitting] a child to be unreasonably placed in a situation which posed a threat of injury to a child’s life or health” (emphasis added). Because in this case the jury returned a general verdict of guilt, the defendant may have been convicted of committing child abuse by permitting “a child to be unreasonably placed in a situation which posed a threat of injury to a child’s life or health.” As the majority explains, the evidence in this case was insufficient to support a conviction for child abuse on this ground, which means that the defendant may have been convicted of a charge that was not proven beyond a reasonable doubt. See maj. op. at 627.

Such a result should not be tolerated under our state constitution. I would therefore affirm the court of appeals in this case and leave our analysis of the due process clause of the Colorado Constitution undisturbed.

I am authorized to state that Justice MARTINEZ joins in this concurrence and dissent.

1 . I specifically concur in Part III.A. of the majority opinion, which holds that in this case the evidence was insufficient to prove the necessary causal connection between the delay in obtaining treatment and the injury to the child.