People v. Glenn, s. 27225
| Decision Date | 25 August 1980 |
| Docket Number | 27367,Nos. 27225,s. 27225 |
| Citation | 615 P.2d 700,200 Colo. 416 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Freddie Lee GLENN, Jr., now known as Siyani Funsani Masamba, Defendant-Appellee. The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Freddie Lee GLENN, Jr., now known as Siyani Funsani Masamba, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Robert L. Russel, Dist. Atty., Jerry C. Nelson, Chief Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant (No. 27225).
George C. Wing, Colorado Springs, for defendant-appellee (No. 27225).
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for plaintiff-appellee (No. 27367).
Jeffrey I. Tompkins, Colorado Springs, for Glenn in both cases.
The defendant was convicted of first-degree murder, second-degree kidnapping, and aggravated robbery. The People filed an appeal in this court pursuant to C.A.R. 4(b), alleging error in specified rulings of the trial court (Case No. 27225). The defendant filed an appeal in the court of appeals (Case No. 27367), and that appeal was transferred to this court pursuant to section 13-4-110(1)(a), C.R.S.1973. For purposes of this opinion, we have consolidated the People's and the defendant's appeals.
The defendant was initially charged in an amended indictment with the crimes of first-degree murder, 1 first-degree kidnapping, 2 aggravated robbery, 3 and rape. 4
Prior to trial, the defendant moved to strike the charge of rape on the ground that the statute on which the charge was based, section 18-3-401, C.R.S.1973, had not been in effect at the time of the criminal conduct alleged in the amended indictment. In support of his motion, the defendant offered into evidence a certified copy of House Bill 1042 from the 1975 Session of the Colorado General Assembly. 5 House Bill 1042 repealed and re-enacted section 18-3-401 et seq., C.R.S.1973, substituting multiple forms of the crime of "sexual assault" for the previous offenses of "rape," "gross sexual imposition," and related crimes. The amended indictment charged the defendant with the crime of "rape," as that offense was set out in section 18-3-401, C.R.S.1973, prior to the enactment of House Bill 1042.
House Bill 1042 contained a stated effective date of July 1, 1975, but the bill was not signed by the Governor until 3:50 p. m. on that date. It was stipulated in the trial court that the criminal conduct alleged in this case had occurred after 12:01 a. m. but prior to 3:50 p. m. on July 1, 1975.
In seeking a dismissal of the rape charge based on section 18-3-401, C.R.S.1973, the defendant argued that House Bill 1042 had been effective for the purpose of repealing that statute as of the bill's stated effective date, i. e., as of 12:01 a. m. on July 1, 1975. In support of this argument, the defendant cited Colo.Const. Art. V, Sec. 19, which states in part that "(a)n act of the general assembly shall take effect on the date stated in the act." The defendant argued that he could not properly be charged with rape under section 18-3-401, C.R.S.1973, since it had been stipulated that the criminal conduct alleged in the amended indictment had occurred after 12:01 a. m. on the date in question. 6
In opposing the defendant's motion, the People contended that House Bill 1042 did not become effective for the purpose of repealing section 18-3-401, C.R.S.1973, until 3:50 p. m. on July 1, 1975, when the bill was signed by the Governor. In support of their position, the People cited Colo.Const. Art. IV, Sec. 11, which states in part that (Emphasis added.) The People argued that the defendant had been properly charged under section 18-3-401, C.R.S.1973 (), since it had been stipulated that the criminal conduct charged in the indictment had occurred before 3:50 p. m. on the date in question. 7
The trial court ruled that House Bill 1042 had become effective for purposes of repealing section 18-3-401, C.R.S.1973, at 12:01 a. m. on July 1, 1975. The court therefore dismissed from the amended indictment the rape charge based on that statute. 8 We reverse the ruling of the trial court.
This case presents the unusual situation in which a bill repealing a criminal statute is signed into law by the Governor after its stated effective date. We must determine whether the repeal of the criminal statute is effective as of the bill's stated effective date (in this case, 12:01 a. m. on July 1, 1975), or as of the date on which the bill was signed by the Governor (in this case, 3:50 p. m. on July 1, 1975). In order to make this determination, we must consider an apparent conflict between the provisions of Colo.Const. Art. IV, Sec. 11, and Colo.Const. Art. V, Sec. 19.
When a bill repealing a criminal statute is signed into law after the bill's stated effective date, the directive contained in Art. IV, Sec. 11, to the effect that the bill does not "become a law" until it is signed by the Governor, 9 takes precedence over the directive contained in Art. V, Sec. 19, to the effect that a legislative act "shall take effect on the date stated in the act." 10 In our view, then, House Bill 1042 did not "become a law" for any purpose until it was signed by the Governor at 3:50 p. m. on July 1, 1975. It follows that section 18-3-401, C.R.S.1973, was not repealed until 3:50 p. m. on that date, and, since the criminal conduct charged in this case occurred before 3:50 p. m., the defendant was properly charged with rape under section 18-3-401, C.R.S.1973. Accord, United States v. Casson, 434 F.2d 415 (D.C.Cir.1969); Robey v. Broersma, 181 Md. 325, 29 A.2d 827 (1943); In re Borough of Sharpsburg, 163 Pa.Super. 84, 60 A.2d 557 (1948). 11
At the close of the People's case, the defendant moved for a judgment of acquittal as to the charge of first-degree kidnapping, arguing that the People's evidence had not shown the specific intent required by section 18-3-301, C.R.S.1973, 12 to have existed at the time of the initial seizure of the kidnapping victim. The trial court granted the judgment of acquittal, holding that the evidence was insufficient to show "that the Defendant . . . had the specific intent at the time of the kidnapping to force the victim to make a concession or give up something of value in order to secure her release."
The court, however, held the evidence sufficient to support a verdict on the lesser included offense of second-degree kidnapping. 13 The jury was accordingly instructed on the elements of that lesser offense, and a guilty verdict was returned.
On appeal, the People request us to disapprove 14 the trial court's reduction of the crime charged from first-degree to second-degree kidnapping. They characterize the court's ruling as a ratification of the defendant's argument that, as a matter of law, the People were required to show the existence of the specific intent required for a conviction under section 18-3-301, C.R.S.1973, at the outset of the kidnapping episode. We do not share the People's view of the nature of the trial court's ruling, however, and therefore do not address the issue raised by the People on appeal. Rather, we approve the trial court's ruling as a determination, supported by the evidence, that the specific intent required for a conviction of first-degree kidnapping had not been shown to have existed either at the outset of the kidnapping episode or at any subsequent time during the kidnapping. See People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973).
The defendant's first argument on appeal is that the trial court erred in admitting into evidence two color photographs of the body of the homicide victim. He contends that the photographs "were unduly inflammatory and lacked any probative value with respect to the issues presented at trial." We do not agree.
The photographs were introduced to show the appearance of the victim's body at the scene of the homicide, as well as the nature and location of her wounds. The record shows that the trial court did not abuse its discretion when it balanced the potential inflammatory effect of the photographs with their probative value and concluded that the photographs should be admitted into evidence. People v. White, Colo., 606 P.2d 847 (1980); People v. Sepeda, 196 Colo. 13, 581 P.2d 723 (1978); People v. Steele, 193 Colo. 87, 563 P.2d 6 (1977); People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976); People v. Pearson, 190 Colo. 313, 546 P.2d 1259 (1976).
As his second argument on appeal, the defendant contends that the trial court erred in refusing to grant a mistrial on the basis of a remark made by a prospective juror during voir dire by the trial court. We do not agree.
The remark on which the defendant bases his argument was made during the following voir dire, exchange:
Because of the prospective juror's further statement that he had formed an opinion of the defendant's guilt, the trial court excused the juror. The court, however, refused to grant a mistrial on the basis of the juror's unsolicited reference to "a previous trial," which was made in the presence of other prospective jurors, some of whom were included in the jury panel before which the defendant was tried.
We find no...
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