People v. District Court

Justice ERICKSON

specially concurring:

People v. District Court, No. 91SA329 (Colo. June 29, 1992) (Thomas case), reverses the district court’s order holding that the prosecution cannot seek the death penalty against Allen Thomas, Jr. who is charged with first-degree murder,¹ a class I felony, allegedly committed in February 1991. The majority opinion, the special concurrences, and the dissent demonstrate a wide divergence among the members of the court in the interpretation of the death penalty statutes enacted by the General Assembly in 1986, 1988, and 1991. The prosecution contends Thomas can be tried for the commission of a death penalty offense on either the theory of statutory revival or under the retrospective application of section 16 — 11—103(2)(b)(II), which was enacted in 1991 (H.B. 91S2-1038, ch. 6, sec. 1, §§ 16-11-801 & 802, 1991 Colo.2d Ex.Sess.Laws 16, 16-22).

Chief Justice Rovira agrees that the procedural changes made in the 1991 statute permit the prosecution to seek the death penalty in this case, but he does not agree with the prosecution’s revival argument. I agree with his analysis of the 1991 statute but differ with him on his reasons for not endorsing the statutory revival argument. However, I agree that our decision in Young did not revive the 1986 statute. Chief Justice Rovira, supported by the reasoning of the Supreme Court of the United States in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), and Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990), concludes that the retrospective application of H.B. 91S2-1038 in proscribing the procedure for the penalty phase of the trial does not violate either the federal or Colorado ex post facto clauses. I agree with the Chief Justice in a substantial part of his opinion, which is buttressed by the concurrences of Justice Vollack and Justice Mullarkey. See U.S. Const, art. I, § 10, cl. 1; Colo. Const, art. II, § 11.

Justice Vollack and Justice Kirshbaum agree with the statutory revival argument made by the prosecution, but with a distinct difference in the interpretation of the statutory revival doctrine. Justice Vollack concurs in the majority opinion in part and dissents in part, but endorses revival. In concluding that the 1986 statute was revived, Justice Kirshbaum relies on White v. District Court, 180 Colo. 147, 503 P.2d 340 (1977) and People v. Young, 814 P.2d 834 (Colo.1991), which he states struck down the 1988 statute in its entirety. Justice Kirshbaum would uphold the right of the prosecution to seek the death penalty under the 1986 statute under the revival doctrine, but joins Justice Lohr’s dissent to the retroactive application of the 1991 statute. I agree with the Chief Justice, Justice Vol-lack, and Justice Kirshbaum in their recognition that the clear legislative intent in the 1986, 1988, and 1991 statutes was to provide the death penalty for first-degree murder. The constitutionality of the 1986 statute was upheld in People v. Tenneson, 788 P.2d 786 (Colo.1990), and it was the General Assembly’s attempt to clarify the 1986 statute that brought about this court’s declaration in People v. Young, 814 P.2d 834 (Colo.1991), that the procedure for imposing the death penalty under the 1988 death penalty statute was facially unconstitutional.

The Young decision invalidated the 1988 statutory procedure at the penalty phase of the trial for securing a death sentence but left the remaining parts of the statute as a viable method for prosecuting the offenses set forth in the statute. In my view, the majority opinion properly holds that the severability clause in the 1988 statute preserved the remainder of the statute intact. See § 16-ll-103(8)(a), 8 C.R.S. (1986 & 1988 Supp.). Accordingly, Thomas could be prosecuted under the 1988 statute, but the prosecution would be foreclosed from seeking the death penalty because of the Young decision. The 1991 statute is patterned after the constitutionally valid 1986 death penalty statute and includes procedural changes that conform the statute to the decisions of our Colorado court and the Supreme Court of the United States. See Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); see also Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). Thus, I would hold that the prosecution can seek the death penalty under the 1991 statute in this case and in the two companion cases that are being announced contemporaneously with this decision.

Justice Lohr, in his dissent, is supported by Justice Quinn and by Justice Kirshbaum on the ex post facto issue. He concludes that reliance on the 1991 statute to justify the prosecution’s right to seek the death penalty violates the ex post facto clause of the United States Constitution, and squarely conflicts with the provisions of the Colorado Constitution. He supports his dissent with strong criticism of the notice and “fair warning” test set forth by the United States Supreme Court in Dobbert and Collins, and declines to follow Dobbert and Collins in interpreting the Colorado Constitution. I disagree with Justice Lohr’s use of the Colorado Constitution to escape the plain and unequivocal holdings of the United States Supreme Court in interpreting parallel ex post facto provisions in the United States Constitution. The dissent, by centering on the Colorado Constitution, avoids recognizing the principles laid down in Dobbert and Collins in interpreting the ex post facto clause of the United States Constitution that is congruent in relevant part with the Colorado Constitution.

We must determine whether the 1986, 1988, or 1991 death penalty statute controls the prosecution of Thomas for first-degree murder. The acts charged, if proven at trial, are death penalty offenses under the 1986, 1988,(prior to July 9, 1991, the date Young was announced), and the 1991 statute. The sole difference in the three statutes is the procedure employed at the sentencing phase of the trial to justify the imposition of the death penalty if a jury has found a defendant guilty of first-degree murder. Prior to the announcement of Tenneson and Young, death penalty convictions under the 1986 statute were upheld in People v. Davis, 794 P.2d 159 (Colo.1990), cert, denied, — U.S.-, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991), and People v. Rodriguez, 794 P.2d 965 (Colo.1990), cert, denied, — U.S.-, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991). The Colorado Constitution was not the sole predicate for the decision of either Davis, Rodriguez, or Tenneson, or the focus in People v. O’Neill, 803 P.2d 164 (Colo.1991).

Dobbert and Collins address two issues relevant to our decision in this case — the notice and “fair warning” test and procedural changes in a statute that do not violate the ex post facto clause. Dobbert authorized the retroactive application of a death penalty statute in a case with similar facts. Dobbert held that the statute, although subsequently declared unconstitutional, “served as an operative fact to warn the [defendant] of the penalty Florida would seek to impose on him if he were convicted of first-degree murder.” Dob-bert, 432 U.S. at 298, 97 S.Ct. at 2300. The Dobbert court held that “this [notice and fair warning] was sufficient compliance with the ex post facto [requirements] of the United States Constitution.” Id. The offense that Thomas is charged with was committed in February 1991. The death penalty statute in effect was § 16-11-103, 8A C.R.S. (1986 & 1988 Supp.) (1988 statute), and was intended by the General Assembly to provide maximum deterrence by making the death penalty available in Colorado to punish first-degree murder. In my mind, it is clear that the defendant had notice and fair warning of the availability of the death penalty for first-degree murder, and that the restoration of the fourth step is a procedural change of the type that Dobbert authorized. The trial court confused substance with procedure and concluded that the 1991 statute was substantive and not procedural and, therefore, ignored Dobbert.

Justice Lohr, in dissent, urges the court to reject the “fair warning” doctrine of Dobbert and Collins. Citing Collins, he states that the “fair warning” doctrine limits the “substantial protections” doctrine that has been a traditional part of Colorado and federal ex post facto law. However, Collins holds that “references ... to 'substantial protections’ ... should not be read to adopt without explanation an undefined enlargement of the Ex Post Facto Clause.” Collins, 497 U.S. at-, 110 S.Ct. at 2721 (citations omitted). If a more onerous punishment was imposed by the 1991 statute directed to the death penalty procedure, that part of the statute would be subject to substantial protection analysis under the ex post fact clause. See Colder v. Bull, 3 U.S. (3 Dali.) 386, 1 L.Ed. 648 (1798). In my view, the “substantial protection” doctrine does nothing more than restate guarantees that were first recognized in Colder v. Bull.² Although I agree that retroactive application of a law should not alter any substantive right or protection afforded an accused under prior law, the “substantial protection” doctrine clearly is not implicated here. No changes in the 1991 statute reduced or diminished in any way the protections afforded an accused under the pri- or law.

Justice Mullarkey agrees that application of the 1991 statute does not violate the ex post facto clauses of either the federal or Colorado constitution and supports Chief Justice Rovira’s analysis and conclusion regarding the statutory revival doctrine and the severability clause of the 1988 statute. However, she departs from the majority’s decision to go beyond the fair notice standard in resolving this case, and states that the majority narrows unnecessarily the scope of protections provided by Colorado’s ex post facto clause. I do not endorse her view and agree with the Chief Justice. I agree with the conclusion that the defendant had fair notice of Colorado’s punishment for murder as well as notice of procedures more onerous than those contained in the 1991 statute. However, I do not agree, as Justice Mullarkey states, that we should not decide this case based on whether the change in the law is substantive or procedural. Here, the element of change distinguishes whether Thomas had fair warning and notice of the punishment for first-degree murder (which has not changed) and notice of procedures which have. It is the effect of those changes that is dispositive, and not notice of the change. Deciding whether procedures are more onerous necessarily involves a substantive law issue.

Accordingly, I specially concur and join the opinion of Chief Justice Rovira except in that part of his opinion on the application of the 1988 statute, his interpretation of Young, and the revival of the 1986 statute. In my opinion, the procedure for obtaining a death sentence at the penalty phase of the trial under the 1988 statute was void ab initio after People v. Young was announced. See White v. District Court, 180 Colo. 147, 503 P.2d 340 (1977); City & County of Denver v. McNichols, 129 Colo. 251, 268 P.2d 1026 (1954); Armstrong v. Mitten, 95 Colo. 425, 37 P.2d 757 (1934); Coulter v. Board of County Comm’rs, 9 Colo. 258, 11 P. 199 (1886). My conclusion, however, does not negate the fact that the 1988 statute provided notice and fair warning that the death penalty could be imposed for first-degree murder.

I also agree with Chief Justice Rovira’s conclusion that the doctrine of statutory revival is not available to reincarnate the 1986 statute for the prosecution of Thomas but for different reasons. Justice Kirsh-baum and Justice Vollack, in their separate opinions, set forth reasons for reviving the 1986 statute after the 1988 statutory death penalty procedure was declared to be unconstitutional. Justice Kirshbaum concludes that the facial unconstitutionality of the 1988 statutory death penalty procedure leaves Colorado without a death penalty if we do not revive the 1986 statute. Such a result, he states, would create a hiatus in the law, which could not have been the legislative intent. In my mind, there is no question that the General Assembly intended that the death penalty should be available to punish first-degree murder. However, I believe his focus on the revival issue is wrong. White v. District Court, 180 Colo. 147, 503 P.2d 340 (1977), provides our only support for the revival argument. White was charged with violation of the 1970 bad check law, pled nolo contendere, and was sentenced to the penitentiary. The 1970 bad check law was declared to be unconstitutional in People v. Vinnola, 177 Colo. 405, 494 P.2d 826 (1972). Thereafter, White successfully moved to vacate his plea and when the plea was granted, he was charged under the 1983 “no account” check statute. In upholding White’s prosecution, we held that the General Assembly could not have intended to create a void in the law relating to bad checks. We recognized the revival doctrine by declaring that the General Assembly did not intend to repeal the older statute if the new statute was unconstitutional. In White, the entire bad check law statute was invalid, and the “no account” check statute was revived. It is a far different situation when an entire statute is declared to be unconstitutional.

The Young case only vitiated the procedure for imposing the death penalty under the 1988 statute. The remaining provisions in the 1988 statute were left intact. In my view the General Assembly did not, and could not, have contemplated the piecemeal revival of the 1986 statute. Accordingly, I do not support the revival position of either Justice Kirshbaum or Justice Vollack. The conclusion reached by Justices Kirshbaum and Vollack renders the severability clause meaningless in this case. It is clear that the legislature, by including a severability clause in the 1988 statute, wanted to retain the option to impose a life sentence for murder in the event the death penalty sentencing procedure was declared unconstitutional. Our decision in Young left unaffected the ability to prosecute Thomas for murder under the 1988 statute with the possibility of a life sentence if a guilty verdict was returned. Thus, no hiatus in the law regarding the crime of murder has occurred. The General Assembly, with the guidance of Young, enacted the 1991 statute and included other procedural amendments to cause the penalty phase of a first-degree murder trial to fall within constitutional boundaries. The 1991 statute, as applied to this case, accomplished the legislative intent of making the death penalty a viable punishment for the crime of first-degree murder.

1 . The 1988 death penalty statute (§ 16-11-103, 8A C.R.S. (1986 & 1988 Supp.), was in effect when Thomas committed the alleged death penalty offense in February 1991. People v. Young, 814 P.2d 834 (Colo.1991), was decided on July 9, 1991, and held that the procedures set forth for the imposition of the death penalty in the 1988 statute were facially unconstitutional. Colo. Const, art. II, §§ 20 & 25. The prosecution claims that when Young was announced, the 1988 statute was void ab initio, unconstitutional in its entirety, and no longer viable. City & County of Denver v. McNichols, 129 Colo. 251, 268 P.2d 1026 (1954); Armstrong v. Mitten, 95 Colo. 425, 37 P.2d 757 (1934); Coulter v. Board of County Comm'rs, 9 Colo. 258, 11 P. 199 (1886). Accord 1 Norman J. Singer, Sutherland Statutory Construction § 2.07, at 35-36 (4th ed. 1985); see Steins v. Fire & Police Pension Ass’n, 684 P.2d 180, 186 (Colo.1984) (Quinn, J., dissenting). The prosecution contends that the 1986 statute (§ 16-11-103, 8A C.R.S. (1986)), was revived by Young, and that the 1991 statute (ch. 6, sec. 1, §§ 16-11-801, 802, 1991 Colo.2d Ex.Sess. Laws 16, 16-22, H.B. 91S2-1038), amended procedural parts of the 1986 statute and establishes that the death penalty can be sought by the prosecution in the Thomas case.

2 . In Calder the Court considered the following ex post facto laws:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

Id. 3 U.S. at 390 (emphasis added).