People v. Franklin

• Decision Date: 04 June 1984
• Docket Number: No. 81SA523,81SA523
• Citation: People v. Franklin, 683 P.2d 775 (Colo. 1984)
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James Everett FRANKLIN, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 775

683 P.2d 775

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v.James Everett FRANKLIN, Defendant-Appellant.

No. 81SA523.

Supreme Court of Colorado,

En Banc.

June 4, 1984.

J.D. MacFarlane, Atty. Gen., Dale Tooley, Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Donna Skinner Reed, Deputy Dist. Atty., Denver, for plaintiff-appellee.

Marks & Olom, Jonathan L. Olom, Denver, for defendant-appellant.

KIRSHBAUM, Justice.

Defendant, James Everett Franklin, appeals his jury convictions of manslaughter and criminal abortion, in violation of sections 18-3-104(1)(a)and18-6-102,8 C.R.S. (1978).He asserts that the Colorado criminal abortion statute is void or, alternatively, that the criminal abortion statute is unconstitutionally vague, and that the trial court erred in admitting certain evidence over defendant's objections.¹We affirm.

I.FACTS

Defendant, a doctor of osteopathy licensed in the State of Colorado, was the sole proprietor of the Abortion Clinic of Denver located at 1750 Humboldt Street on February 22, 1980.On that date, at approximately 9:00 a.m., Mary Zellers drove her sister, Betty Damato, to the clinic.Damato previously had arranged to have an abortion performed at that time.

Later that afternoon, Zellers called the clinic and spoke with Damato, who told Zellers that problems had developed during the surgery.Zellers drove to the clinic to pick up her sister, and observed that Damato appeared pale and was holding her stomach.Damato, in a very soft voice, related additional information about the procedure to Zellers at the clinic.They then drove to Damato's apartment, and during this ride Damato again referred to the surgery performed at the clinic.In helping her sister from the car, Zellers noticed a blood stain where Damato had been seated.Damato spent the night at Zellers' home, but returned to her own apartment the following day.

Two days later, on the morning of February 25, 1980, Damato was taken by ambulance to the emergency room of Porter Memorial Hospital.She was unconscious, with no pulse or respiration, and was pronounced dead a short time after her arrival.Dr. Robert Lyle Deters, a forensic pathologist, determined from an autopsy that her death was caused by "a massive overwhelming bacterial infection" originating in the uterus, the source of which was a partially truncated and macerated fetus.

Defendant was indicted by a grand jury on one count of manslaughter and one count of criminal abortion.At trial, the prosecution introduced a transcript of defendant's testimony at the grand jury proceedings containing his statement that he did not perform a therapeutic abortion on Damato on February 22, 1980.Over defendant's objection, the prosecution also introduced into evidence certain of the statements Damato had made to her sister on February 22, 1980, and a photograph of the decedent depicting the partial extrusion of a truncated and macerated fetus from her vagina.Defendant was convicted on both counts.

II.THE CRIMINAL ABORTION STATUTE

Defendant argues that as a result of this court's decision in People v. Norton, 181 Colo. 47, 507 P.2d 862(1973), Colorado's criminal abortion statute no longer retains sufficient substance to permit enforcement of the legislative intent.We disagree.

Prior to Norton, the Colorado criminal abortion statute, 1971 Perm.Supp., C.R.S.1963, 40-6-101 to -105, provided one procedure for the legal termination of pregnancies.Any woman who desired to obtain an abortion was required to petition a special hospital board for a determination of whether the woman was entitled to an abortion pursuant to specified statutory grounds.If the board unanimously approved the petition, the woman was entitled to have an abortion performed in an accredited hospital by a licensed physician using accepted medical procedures.SeeDoe v. Dunbar, 320 F.Supp. 1297(D.Colo.1970).

In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147(1973), andDoe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201(1973), the United States Supreme Court held that a state has an important and legitimate interest in protecting both the health of the woman and the potential life of the fetus, yet neither interest is "compelling" throughout the entire pregnancy.Therefore, the Court concluded, that state legislation may not interfere with a woman's decision to terminate her pregnancy during the first trimester of pregnancy, and such legislation regulating abortions during the second trimester must reasonably relate to the preservation and protection of the woman's health.

In Norton, the constitutionality of Colorado's criminal abortion statute was challenged on the basis of those two federal decisions.We reasoned that they required the conclusion that certain portions of Colorado's statute violated the Fourteenth Amendment to the United States Constitution.²However, other provisions of the statute were not declared unconstitutional.Those pertinent portions of the statute which were not declared unconstitutional are presently codified at sections 18-6-101 to -105, 8 C.R.S.(1978).Section 18-6-102(1) provides:

Any person who intentionally ends or causes to be ended the pregnancy of a woman by any means other than justified medical termination or birth commits criminal abortion.³

Section 18-6-101(1) defines "justified medical termination" as the

intentional ending of the pregnancy of a woman at the request of said woman or, if said woman is under the age of eighteen years, then at the request of the woman and her then living parent or guardian, or, if the woman is married and living with her husband, at the request of said woman and her husband, by a licensed physician using accepted medical procedures.(emphasis added)⁴

The General Assembly has addressed the question of the validity of remaining provisions of a statute declared to be unconstitutional in part in section 2-4-204, 1B C.R.S. (1980), as follows:

If any provision of a statute is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of the statute are valid, unless it appears to the court that the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court determines that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

The question posed by defendant is whether the remaining portions of the statute are so independent from the provisions found unconstitutional in Norton that the statute as presently constituted can be said to be a valid expression of legislative intent which motivated the initial statute.To address this issue, we must first examine that legislative intent.

In Palmer v. People, 162 Colo. 92, 98, 424 P.2d 766, 769(1967), we stated that the purpose of Colorado's then effective criminal abortion statute, C.R.S.1953, 40-2-23, was "to prevent abortions other than for lawful purposes or by natural causes."That statute was subsequently amended, effective April 25, 1967, by the statute found partially unconstitutional in Norton.⁵The 1967amendments also express the desire of the General Assembly to prevent abortions other than for lawful purposes.However, the 1967amendments also considerably broadened the circumstances under which an abortion would be considered lawful.By defining these circumstances as "justified medical terminations," the General Assembly specifically required that any abortion procedures be performed by "a licensed physician using accepted medical procedures."⁶This provision evidences a strong intent on the part of the legislature to protect the health of the woman.The statute continues to require medically acceptable procedures to ensure that the woman's health is protected; ⁷ enforcement of the pertinent remaining sections of the statute will continue to further that intent.SeeCovell v. Douglas, 179 Colo. 443, 501 P.2d 1047(1972), cert. denied, 412 U.S. 952, 93 S.Ct. 3000, 37 L.Ed.2d 1006(1973).We conclude, therefore, that the remaining portions sufficiently further the General Assembly's intent to protect the health of the woman.

Defendant next contends that the phrase "accepted medical procedures" as used in the criminal abortion statute is inherently vague and uncertain and is not sufficiently definitive to apprise the defendant of the proscribed conduct.We do not agree.

Statutes are presumed to be constitutional, and a party asserting the contrary has a heavy burden to establish the alleged unconstitutionality of a penal statute beyond a reasonable doubt.People v. Caponey, 647 P.2d 668(Colo.1982).The concept of fundamental fairness inherent in the due process clause of the Fourteenth Amendment to the federal constitution and in Article II, Section 25 of the Colorado Constitution requires that legislation must be drafted in language sufficiently precise and clear to provide persons of ordinary intelligence with fair notice of what conduct has been determined to be unlawful.People v. Boyd, 642 P.2d 1(Colo.1982);People v. Beruman, 638 P.2d 789(Colo.1982).Moreover, a penal statute is unconstitutionally vague if it "provides no readily ascertainable standards by which one's conduct may be measured."Beruman, 638 P.2d at 793.The terms of Colorado's criminal abortion statute must be analyzed with these perspectives in mind.

Under this statute, abortions performed "by means other than justified medical termination or birth" are prohibited.SeeDoe v. Dunbar, 320 F.Supp. 1297(D.Colo.1970).A "justified medical termination" is now defined as one performed "by a licensed physician using accepted medical procedures."Defendant argues that in State v. Strance, 84 N.M. 670...