Padilla v. People

• Decision Date: 04 May 1970
• Docket Number: No. 23368,23368
• Citation: 171 Colo. 521,470 P.2d 846
• Parties: John Junior PADILLA, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 846

470 P.2d 846

171 Colo. 521

John Junior PADILLA, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 23368.

Supreme Court of Colorado, En Banc.

May 4, 1970.

Cisneros & Huckeby, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Paul D. Rubner, Asst. Atty. Gen., Denver, for defendant in error.

DAY, Justice.

John Junior Padilla, along with Eugene Paul Vigil (See Vigil v. People, Colo., 470 P.2d 837) was tried and found guilty of murder in the first degree and of conspiracy to commit murder. Both were sentenced to life imprisonment in the state penitentiary on the first count and given concurrent sentences on the second count. In addition to Padilla and Vigil, two other persons were also charged but were not tried jointly with these defendants.

Evidence of the homicide, which was committed during a robbery, was that on August 28, 1964, two armed men entered the Seagrams Inn in Denver at 4700 Claude Court at about 10:45 a.m. One gunman, wearing a stocking over his face and white gloves, ordered George Albert Hanson, an owner of the Inn, to walk to the rear of the establishment where a safe was located. Hanson preceded the gunman to the rear. The other gunman, who more a hood over his head, remained guarding the front door of the Inn. When Hanson and the stocking-masked gunman were out of sight of all other persons in the bar, three rapid shots were heard, followed by a fourth shot. The stocking-masked man (Padilla) staggered back into the main bar, stated he was shot, and thereupon the hooded gunman ran out the front door. Hanson was found lying in the hallway mortally wounded. A witness testified that he saw a man run from the Inn, remove the hood, jump into the passenger side of a white 1959 Ford in which there was another person in the driver's seat. Police located a white Ford such as the one described by the witness a short distance from the Inn a few minutes after the time was reported. Vigil was alleged by the People to be the driver of the 'get-away' car. A fingerprint alleged to be that of defendant Vigil was subsequently taken from the left front wing vent of this car.

There was evidence that two cars were used in the 'get-away.' A witness for the People, one Sharpley, testified that he saw the white Ford traveling very fast before it stopped near a green and white Chevrolet, and that he observed two men run from the Ford to the Chevrolet and speed away. He identified Vigil as one of the men.

Separate briefs have been submitte don behalf of each defendant seeking reversal of the trial court's judgment. Because both Padilla and Vigil raised the same arguments concerning qualification of the jury for the death penalty as a claimed violation of their constitutional rights, the common assignments of error were consolidated for oral argument before this court. We will discuss those assignments numbered I through V in this case plus those points of error which Padilla claims affected him individually. Vigil's assignments of error in the brief filed on his behalf are treated in Vigil v. People, Supra.

I.

The Colorado statute (C.R.S. 1963, 40--2--3(1)) which provides that the jury in a homicide case must first determine the question of guilt and that if it find murder in the first degree must then set the penalty at either death or life imprisonment is not challenged. The first assignment of error puts in issue the method of qualifying the jury. It is argued that during the voir dire examination the qualification of the jury was such as to deprive the defendant of the right to a representative cross section of the community and that the qualification of a jury for the death penalty excludes a class of persons forming a substantial segment of the population of the county. Defendant would have us overrule or modify the previous decisions of this court in Jones v. People, 155 Colo. 148, 393 P.2d 366; Gallegos v. People, 116 Colo. 129, 179 P.2d 272; Demato v. People, 49 Colo. 147, 111 P. 703. By the authority of those cases it has been long recognized in Colorado that a prospective juror must be willing to consider the alternative punishments which it alone may impose in connection with first degree murder. The right of the prosecution to qualify the jury has consistently been upheld by the cases cited.

However, the defendant argues that he has a constitutional right to a trial by a jury of his peers and that such a jury was denied him in this case because 29.3% Of the jury panel were excluded on challenge for cause because of their unwillingness to consider under any circumstances the imposition of the death penalty. Cited in support of the argument is Crawford v. Bounds, 395 F.2d 297 (4th Cir.) wherein a three judge panel held:

'* * * we do hold that belief against capital punishment on the part of jurors who are vested with a dichotomy of functions--the determination of the issue of guilt, and, if guilt is found, the degree of punishment to be imposed--cannot be allowed to disqualify a substantial part of the venire when it is not established that the views of the persons so disqualified will preclude them from making a fair determination on the issue of guilt, aside from the issue of punishment. Such disqualification prevents the jury in its function of determining the issue of guilt from being fairly representative of the community, and thus violates equal protection of the laws.'

Two of the panel, concurring in the result, based their decision on the denial of due process and infringement of the right to trial by a jury rather than denial of equal protection. About a month after the final brief was filed herein the United States Supreme Court in Bounds v. Crawford, 393 U.S. 76, 89 S.Ct. 234, 21 L.Ed.2d 62, vacated the circuit court judgment and remanded the case for further consideration in light of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, rehearing denied 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186, and for consideration of the other constitutional questions raised in the case.

In Witherspoon the Supreme Court was concerned with the verdict of guilty and a sentence of death by an Illinois jury from which 42 persons were excused for cause on the basis of the fact that they did not 'believe in the death penalty' or had 'conscientious or religious scruples against the infliction of the death penalty' without any effort on the part of the court to determine if despite these beliefs or scruples they could return a verdict of death. In Witherspoon Mr. Justice Stewart, expressing the views of five members of the court, stated:

'Specifically, we hold that a Sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced General objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally Be put to death at the hands of a tribunal so selected.' (Emphasis added.)

On the same day as it decided Witherspoon the United States Supreme Court announced Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, in which it was stated:

'In Witherspoon v. State of Illinois, 391 U.S. 510 88 S.Ct. 1770, 20 L.Ed.2d 776, we have held that a death sentence cannot constitutionally be executed if imposed by a jury from which have been excluded for cause those who, without more, are opposed to capital punishment or have conscientious scruples against imposing the death penalty. Our decision in Witherspoon does not govern the present case, because here the jury recommenced a sentence of life imprisonment. The petitioner argues, however, that a jury qualified under such standards must necessarily be biased as well with respect to a defendant's guilt, and that his conviction must accordingly be reversed because of the denial of his right under the Sixth and Fourteenth Amendments to trial by an impartial jury. Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491; Turner v. State of Louisiana, 379 U.S. 466, 471--473, 85 S.Ct. 546, 548--550, 13 L.Ed.2d 424; Irvin v. Dowd, 366 U.S. 717, 722--723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751. We cannot accept that contention in the present case. The petitioner adduced no evidence to support the claim that a jury selected as this one was is necessarily 'prosecution prone,' and the materials referred to in his brief are no more substantial than those brought to our attention in Witherspoon. Accordingly, we decline to reverse the judgment of conviction upon this basis.'

Witherspoon does not support the argument of defendant in this case, not only because the death penalty was not imposed by the jury but also because in the case at bar no person was excused for cause who unequivocally stated a willingness and an ability to set aside his convictions against the death penalty and impose either one of the penalties provided by law. In the case at bar the jurors were scrupulously examined by counsel and in some cases by further questioning by the court and those excluded for cause were only the persons who stated that they would not, under any circumstances, consider the penalty of death because of conscientious objections thereto.

As this court said in Demato v. People, Supra:

'The juror's oath prescribes his duty. By the obligation thus imposed, he is too well and truly try the issues joined and a true verdict render according to the law and the evidence. The lawmaking power of the state, namely, the General Assembly, has provided that capital punishment may be inflicted for murder in the first degree, when the jury finding such verdict so determines, or life imprisonment, in the discretion of the jury. In other words, under the law, it is the bounden duty of the jury convicting one of the crime of murder in the first degree to exercise their discretion in fixing the penalty...