People v. District Court

Citation834 P.2d 181
Decision Date29 June 1992
Docket NumberNo. 91SA329,91SA329
PartiesThe PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT, Seventeenth Judicial District, and one of the judges thereof, The Honorable Philip F. Roan, Respondents. The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Allen THOMAS, Jr., Defendant-Appellee.
CourtSupreme Court of Colorado

James F. Smith, Dist. Atty., Steven L. Bernard, Chief Trial Deputy, Brighton, for petitioner.

David F. Vela, Public Defender, Terri L. Brake, Chief Deputy Public Defender, Denver, for Allen Thomas, Jr.

Gale A. Norton, Denver, for amicus curiae Office of the Attorney General.

Bonnie Wright-Benedetti, Englewood, for amicus curiae Colorado Dist. Attys.' Council.

Chief Justice ROVIRA delivered the Opinion of the Court with respect to Parts II and IV. Justice ERICKSON specially concurred as to Part II. Justice KIRSHBAUM and Justice VOLLACK filed dissents as to Part II.

Chief Justice ROVIRA announced the Judgment of the Court and delivered an Opinion with respect to Part III, in which Justice VOLLACK joined. Justice ERICKSON filed a specially concurring opinion as to Part III. Justice MULLARKEY filed an opinion concurring in the judgment as to Part III. Justice LOHR filed a dissent as to Part III, which Justice QUINN joined in its entirety and Justice KIRSHBAUM joined in Parts I, II, and III thereof.

The People of the State of Colorado (People) appeal two rulings of the Adams County District Court denying their motions to seek the death penalty against the defendant, Allen Thomas, Jr., who is charged with first degree murder under section 18-3-102(1)(a), 8B C.R.S. (1986), a class one felony offense which occurred in February, 1991.

In July, 1991, in People v. Young, 814 P.2d 834 (Colo.1991), we held that the death penalty sentencing statute was unconstitutional (§ 16-11-103, 8A C.R.S. (1988 Supp.) ("1988 statute")). Following Young, the trial court ruled that the People could not, pursuant to the revival doctrine, seek the death penalty under the sentencing statute that preceded the unconstitutional provision, section 16-11-103, 8A C.R.S. (1986) ("pre-1988 statute"). 1 In response to Young, the legislature enacted two bills. The first rendered possible the imposition of the death penalty for class one felony offenses committed on or after September 20, 1991. House Bill 91S2-1001, act approved Sept. 20, 1991, ch. 4, sec. 1, § 16-11-103, 1991 Colo.2d Ex.Sess.Laws 8. The second enacted two statutes with the express intent of making the death penalty available as a sentence for persons convicted of class one felony offenses which occurred on or after July 1, 1988 and prior to September 20, 1991. House Bill 91S2-1038, act approved Oct. 11, 1991, ch. 6, sec. 1, §§ 16-11-801 and -802, 1991 Colo.2d Ex.Sess.Laws 16. The district court ruled that the second bill could not be applied to Thomas without violating the constitutional proscription against ex post facto laws.

The People appeal both trial court rulings. 2 We agree that the doctrine of revival cannot operate to resurrect the pre-1988 statute and the People cannot seek the death penalty under this doctrine. Nonetheless, because sections 16-11-801 and -802, the statutes enacted to cover the period from July 1, 1988 to September 19, 1991, do not violate the ex post facto clauses of either the United States or the Colorado Constitutions, the People may seek the death penalty under these statutory provisions. Accordingly, we affirm the trial court's first order and reverse its second order.

I

Colorado has had a death penalty statute in effect since 1861, with the exception of a brief interruption between 1897 and 1901. People v. Davis, 794 P.2d 159, 171 n. 3 (Colo.1990), cert. denied, 498 U.S. 1018, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991) (citing Colorado Legislative Council, An Analysis of 1966 Ballot Proposals, Research Publication No. 110, at 32). The predecessor to the current death penalty sentencing statute initially appeared in 1972 when the legislature adopted the Colorado Code of Criminal Procedure. Ch. 44, sec. 1, § 39-11-103, 1972 Colo.Sess.Laws 190, 240-41. Since that time, the statute has been subject to numerous legislative amendments. Because the order of certain events plays an important role in our decision, a chronological review of recent death penalty statutory amendments related to the events in this case provides our starting point.

Prior to 1988, Colorado's death penalty statute required a jury to follow a four step sentencing procedure in determining whether to impose a sentence of life imprisonment or death penalty. See § 16-11-103, 8A C.R.S. (1986) ("pre-1988 statute"). In People v. Tenneson, 788 P.2d 786, 789 (Colo.1990), we outlined these four steps:

First, the jury must determine if at least one of the statutory aggravating factors exists. §§ 16-11-103(2)(a)(I), -(6). If the jury does not unanimously agree that the prosecution has proven the existence of at least one statutory aggravator beyond a reasonable doubt, the defendant must be sentenced to life imprisonment. §§ 16-11-103(1)(d), -(2)(b)(I), -(2)(c). Second, if the jury has found that at least one statutory aggravating factor has been proven, the jury must then consider whether any mitigating factors exist. §§ 16-11-103(2)(a)(II), -(5).... Third, the jury must determine whether "sufficient mitigating factors exist which outweigh any aggravating factor or factors found to exist." § 16-11-103(2)(a)(II). Fourth, and finally, if the jury finds that any mitigating factors do not outweigh the proven statutory aggravating factors, it must decide whether the defendant should be sentenced to death or to life imprisonment. § 16-11-103(2)(a)(III).

The fourth step, therefore, required the jury to make an independent decision whether to impose a sentence of life imprisonment or death where mitigating factors did not outweigh aggravating factors.

In 1988, the death penalty statute was amended ("1988 statute") by Senate Bill 78 to eliminate this fourth step by consolidating the third and fourth steps of the pre-1988 statute. See S.B. 78, ch. 114, sec. 1-3, § 16-11-103, 1988 Colo.Sess.Laws 673, 674-75 (codified at § 16-11-103, 8A C.R.S. (1988 Supp.)). In section 3, Senate Bill 78 specifically repealed section 16-11-103(2)(a)(III), 8A C.R.S. (1986), the source of the former fourth step. See id., sec. 3 at 675. The 1988 statute required a jury to return a sentence of death if there were insufficient mitigating factors to outweigh aggravating factors. See id., sec. 2. After the amendment, the death penalty statute read in pertinent part:

In the event that the jury finds that at least one statutory aggravating factor has been proved beyond a reasonable doubt, and that there are insufficient statutory mitigating factors or other mitigating circumstances to outweigh any statutory aggravating factor or factors that were proved and any other aggravating circumstances that were proved, the jury shall return a sentence of death.

§ 16-11-103(2)(b)(III), 8A C.R.S. (1988 Supp.).

Following enactment of the 1988 statute, the death penalty itself survived a constitutional challenge grounded in the state constitutional due process and equal protection provisions and the prohibition against cruel and unusual punishment. People v. Davis, 794 P.2d 159, 170-75 (Colo.1990), cert. denied, 498 U.S. 1018, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991) (finding the pre-1988 sentencing statute, applicable at the time of the offenses committed by the defendant, constitutional). In 1990, we also decided People v. Tenneson, 788 P.2d 786 (Colo.1990), in which the prosecution challenged jury instructions given under the then applicable pre-1988 statute. 3 In Tenneson, in interpreting the third and fourth steps of the pre-1988 statute, we held that "before a defendant may be sentenced to death the jury must be convinced beyond a reasonable doubt that any mitigating factors do not outweigh the proven statutory aggravating factors." Id. at 790. Subsequently, in People v. O'Neill, 803 P.2d 164, 178-79 (Colo.1990), we upheld defendant's argument that the jury was not under any burden of persuasion in its fourth step of deliberations in violation of Tenneson. In a footnote, we noted that the fourth step had been eliminated by the 1988 amendment but that the pre-1988 statute was in effect at the time of the offense in O'Neill. We found that the jury had not, by virtue of the instructions given, been placed under any burden of persuasion in its fourth step of deliberations and stated that "Tenneson clearly mandates that the jury find that death is the appropriate penalty beyond a reasonable doubt." O'Neill, 803 P.2d at 178.

After these cases were decided, an information was filed charging Thomas with several felony offenses that occurred in February 1991, including first degree murder. 4 At a hearing in May 1991, the People informed the defendant and the court of their intention to seek the death penalty. 5

On July 9, 1991, our decision in People v. Young, 814 P.2d 834 (Colo.1991), was announced. In Young, we invalidated the 1988 statute on the grounds that the elimination of the fourth step "violates fundamental requirements of certainty and reliability under the cruel and unusual punishment and due process clauses of the Colorado Constitution." Id. at 846.

Shortly thereafter, citing Young, the defendant requested an order from the trial court prohibiting the People from seeking the death penalty under the 1988 statute. The People opposed the motion, asserting that the determination that the 1988 statute was unconstitutional operated to "revive" the pre-1988 statute or, alternatively, should the General Assembly adopt a new procedural death penalty law before Thomas' trial, the People should be allowed to seek the death penalty under the newly enacted statute.

On July 29, 1991, Thomas entered a plea of not guilty to the...

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