People v. District Court In and For Seventeenth Judicial Dist., 27078

• Decision Date: 11 March 1976
• Docket Number: No. 27078,27078
• Citation: 546 P.2d 1268,190 Colo. 342
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT IN AND FOR the SEVENTEENTH JUDICIAL DISTRICT of the State of Colorado and Oyer G. Leary, one of the Judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 1268

546 P.2d 1268

190 Colo. 342

The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT IN AND FOR the SEVENTEENTH JUDICIAL DISTRICT of the State of Colorado and Oyer G Leary, one of the Judges thereof, Respondents.

No. 27078.

Supreme Court of Colorado, En Banc.

March 11, 1976.

Floyd Marks, Dist. Atty., Brian T. McCauley, Deputy Dist. Atty., Brighton, for petitioner.

Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Lee Belstock, Deputy State Public Defender, T. Michael Dutton, Norman R. Mueller, Dep. State Public Defenders, Denver, for respondents.

Richard L. Tegtmeier, Colorado Springs, for The Colorado Springs Criminal Defense Lawyers Association, amicus curiae.

Earl S. Wylder, Richard S. Shaffer, Denver, for Arnold Alperstein, and others, amici curiae.

GROVES, Justice.

This is an original proceeding relating to the question of whether prospective jurors can be questioned on Voir dire as to their views on capital punishment in a first-degree murder case, People v. Carlos O. D. Henry. Prior to commencement of the trial the court granted a motion by the defendant Henry to give the following instruction to prospective jurors in advance of Voir dire:

'During the voir dire examination, you will be asked questions concerning your attitude towards capital punishment. In this regard, I give you the following instructions. In the event that the Defendant is found guilty of murder, the law requires that the jury consider, on the basis of factors as to which I will instruct you, whether or not a death penalty should be imposed.

'Thus, in the event the Defendant is found guilty of murder, the law requires that, even if you are absolutely opposed to capital punishment, you should Consider whether a sentence of death should be imposed. You must not lightly disregard your obligation as a juror. Where possible, you should subordinate your personal feelings about capital punishment to the duty imposed by the law. I repeat that your duty is to Consider whether a death sentence should be imposed in the case before you.

'In responding to the questions which will be put to you regarding the death penalty, you must keep in mind your duty as a juror as I have just explained it to you.'

Arguing that any mention to the jury of death penalty is forbidden under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the People sought review of the matter in this proceeding. We issued a rule to the respondents to show cause why the People's contentions should not be sustained. The matter is now at issue. The rule is now made absolute in part and discharged in part.

Formerly, our Colorado statutes provided that, in a first-degree murder case, upon finding guilt the jury should also determine whether the penalty should be life imprisonment or death. ¹ That statute vested in the jury's complete discretion the determination as to whether a defendant should be executed. In Furman v. Georgia, supra, there was a per curiam opinion of five justices and separate opinions of all nine justices. Whatever else Furman may have held, we think it ruled that the vesting of such complete discretion in a jury without any standards is unconstitutional.

In 1974 (effective January 1, 1975), the General Assembly enacted a new statute relating to capital punishment. ² Under this statute, upon conviction of a defendant of a class 1 felony, the trial court conducts a separate sentencing hearing to determine whether the defendant should be sentenced to death or life imprisonment. Unless a jury trial has been waived, at the conclusion of the hearing certain interrogatories are submitted to the jury for their answers. First, stated roughly, the statute provides for specific interrogatories designed to ascertain whether there have been specific mitigating or aggravating circumstances. Second, also stated roughly, the statute provides: (1) that, when the jury finds neither mitigating nor aggravating factors, the judge must sentence the defendant to life imprisonment; (2) that when the jury finds any mitigating circumstances--no matter how many aggravating circumstances it may find--the judge must sentence the defendant to life imprisonment; (3) that, when the jury finds no mitigating circumstances and one or more aggravating circumstances, the judge must sentence the defendant to death; and (4) that, if the jury's responses at the sentencing hearing are not unanimous, the judge must sentence the defendant to life imprisonment.

It remains to be seen whether new state statutes can overcome the infirmities of the statutes construed in Furman. For the purpose of this opinion, we assume the constitutionality of the new statute.

The jury at the sentencing hearing is the same jury which tries the case. Therefore, there will be no separate Voir dire prior to the sentencing hearing.

Although it is true, according to the statute, that the jury may decide only the...