People v. Jefferson

• Decision Date: 11 January 1988
• Docket Number: 87SA237,Nos. 86SA464,s. 86SA464
• Citation: 748 P.2d 1223
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Phillip JEFFERSON, Defendant-Appellee. The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Clyde Edward SAVAGE, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1223

748 P.2d 1223

7 A.L.R.5th 1128

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Phillip JEFFERSON, Defendant-Appellee.

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Clyde Edward SAVAGE, Defendant-Appellee.

Nos. 86SA464, 87SA237.

Supreme Court of Colorado,

En Banc.

Jan. 11, 1988.

Rehearings Denied Feb. 8, 1988.

Norman S. Early, Jr., Dist. Atty., Nathan B. Coats, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, Scott Jurden, and Rachel A. Bellis, Deputy State Public Defenders, Denver, for defendants-appellees.

ROVIRA, Justice.

These two cases on appeal raise an identical issue: The constitutionality of Colorado's "extreme indifference" murder statute, section 18-3-102(1)(d), 8B C.R.S. (1986). In both cases, the district court relying on People v. Marcy, 628 P.2d 69 (Colo.1981), held the statute facially unconstitutional as violative of defendants' equal protection rights under article II, section 25 of the Colorado Constitution because it could not be rationally distinguished from Colorado's second-degree murder statute, section 18-3-103(1)(a), 8B C.R.S. (1986). Because the changes made by the General Assembly after the Marcy decision permit a rational distinction to be made between the two statutes, we find the extreme indifference statute constitutional. Accordingly, we reverse and remand both cases for further proceedings.

I.

In People v. Jefferson, No. 86SA464, the defendant was charged by information with two counts of murder after deliberation, section 18-3-102(1)(a), 8B C.R.S. (1986), and a single count of violent crime, section 16-11-309, 8A C.R.S. (1986). Later, the information was amended and two counts of extreme indifference murder were added.

Jefferson moved to dismiss the extreme indifference murder counts, alleging that the statute does not give a reasonable person notice of prohibited conduct and is, therefore, void for vagueness, and that the statute is not sufficiently distinguishable from second-degree murder to warrant the substantial difference in penalty, and therefore, violates equal protection of the laws. Following oral argument, the trial court relying on Marcy determined that any distinction between the extreme indifference and second-degree murder statutes is "illusory at best." Accordingly, it found the statute unconstitutional and granted the motion to dismiss. The People appeal, pursuant to section 16-12-102(1), 8A C.R.S. (1986) (duty of district attorney to appeal finding of unconstitutionality of statute in criminal case), challenging the district court's declaration of unconstitutionality.

In People v. Savage, No. 87SA237, the defendant was charged with one count of first-degree murder after deliberation, one count of extreme indifference murder, and one count of violent crime. On April 21, 1987, Savage filed a motion to dismiss the extreme indifference count, on the same grounds as Jefferson.

The trial court, finding the extreme indifference statute insufficiently distinguishable from second-degree murder, held the statute unconstitutional and granted the motion. The People appeal pursuant to section 16-12-102(1), 8A C.R.S. (1986).

II.

Before turning to the substantive issues raised by these appeals, we must first consider a matter of appellate procedure. In People v. Jefferson, the defendant contends that this court does not have jurisdiction to consider the People's appeal under section 16-12-102(1), and consequently, that appeal should be dismissed.

Under section 16-12-102(1), the "procedure to be followed in filing and prosecuting appeals under this section shall be as provided by applicable rule of the Supreme Court of Colorado." Pursuant to C.A.R. 1, only "final judgments" of a district court may be appealed. Alleging that the district court's declaration and dismissal are not "final orders," because the dismissal did not completely determine the rights of the parties, since the People remain free to try the defendant on the remaining counts of the information, Jefferson contends that there is no "matter reviewable" under C.A.R. 1.

We have stated in the past that trial court orders may not be appealed in the absence of a final judgment which terminates the prosecution. People v. Cochran, 176 Colo. 364, 366, 490 P.2d 684, 685 (1971) (no final judgment where defendant may be tried again on same charge). Further, we have defined final judgment "as one which ends the particular action in which it is entered, leaving nothing further for the court pronouncing it to do in order to completely determine the rights of the parties involved in the proceedings." Stillings v. Davis, 158 Colo. 308, 310, 406 P.2d 337, 338 (1965).

Nevertheless, there is support in our cases for viewing dismissals of particular charges of a multi-count information as "final judgments" within the meaning of C.A.R. 1. In the past, we have recognized without discussion the People's right to appeal partial dispositions of multi-count informations pursuant to the authority granted the People by section 16-12-102(1). See, e.g., People v. Pedrie, 727 P.2d 859, 861 n. 6 (Colo.1986) (People appeal dismissal of two counts of eight-count information for lack of probable cause; appeal of probable cause determination considered on its merits); People v. Williams, 628 P.2d 1011, 1012-13 (Colo.1981) (where trial court dismissed felony murder count for lack of probable cause, this court issued order to show cause to prevent the trial court from proceeding on remaining first-degree count despite People's notice of an appeal, and addressed the People's appeal on its merits). In both cases, the presence of remaining counts of an information was not held as a bar to our consideration of the dismissal of the contested counts on appeal.

In addition, it is appropriate to analogize the dismissal of a charge to a final judgment. A dismissal of a charge is not interlocutory, in a sense that it represents one or more steps toward the resolution of a given charge against a particular defendant. Nor is it like a motion for new trial in the case of juror misconduct prior to conviction, see Cochran, 176 Colo. at 364, 490 P.2d at 684, where the court can order the defendant tried again on the same charge. Instead, the dismissal of a charge against the defendant, absent a right of immediate appeal, disposes of the opportunity to try that defendant on that particular charge at the same time other charges are pending before the trial court.

This interpretation is also supported by the language of the statute. While the prosecution is given permission to appeal "any decision of the trial court in a criminal case upon any question of law," the district attorney has a duty to appeal where a state statute has been adjudged unconstitutional in a criminal case. § 16-12-102(1). The obligation imposed on the People to appeal a declaration of unconstitutionality underscores the legislature's intent that its acts not be declared unconstitutional in the absence of meaningful and immediate appellate review. Declarations of unconstitutionality under section 16-12-102(1), as with suppression orders under section 16-12-102(2), are specially appealable by statute, even though neither category could technically be considered a final judgment under the definition set forth in Stillings v. Davis, 158 Colo. at 310, 406 P.2d at 338.

In the past, we have recognized without discussion the People's right to appeal from a declaration of unconstitutionality of a statute without requiring that the entire case first be dismissed. See, e.g., People v. Moyer, 670 P.2d 785, 787 (Colo.1983) (trial court held statute unconstitutional and probable cause did not exist; order dismissing the charges was stayed pending resolution of the People's appeal); People v. Mizell, sub nom. People v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348, 354 (Colo.1985) (trial court held act unconstitutional, charges not dismissed but ruling stayed pending appeal to supreme court). In both cases, we considered the merits of the appeal.

We find, therefore, in light of our previous cases and the words of section 16-12-102(1), that we have jurisdiction to consider the People's appeal, raising as it does the issue of the constitutionality of Colorado's extreme indifference murder statute. We now turn to the merits of both cases.

III.

A.

In considering the motions to dismiss both district courts found the extreme indifference murder statute indistinguishable from the second-degree murder statute. They concluded that prosecution under the former statute violated the defendants' rights to equal protection of the laws, under article II, section 25 of the Colorado Constitution.

Equal protection assures that those who are similarly situated will be afforded similar treatment. People v. Mozee, 723 P.2d 117, 126 (Colo.1986); People v. Calvaresi, 188 Colo. 277, 281, 534 P.2d 316, 318 (1975). When two criminal statutes prescribe different punishment for the same acts, a defendant convicted and sentenced under the harsher statute is denied equal protection of the laws. Mozee, 723 P.2d at 126. Similarly, separate statutes proscribing with different penalties what ostensibly might be different acts, but offering no intelligent standard for distinguishing the proscribed conduct, run afoul of equal protection under state constitutional doctrine. People v. Marcy, 628 P.2d at 75.

Equal protection of the laws requires that statutory classifications of crimes be based on differences that are real in fact and reasonably related to the general purposes of criminal legislation. People v. Mumaugh, 644 P.2d 299, 301 (Colo.1982); People v. Brown, 632 P.2d 1025, 1027 (Colo.1981). The General Assembly may, however, prescribe more severe penalties for acts it perceives to have graver social consequences, even if the differences are only a matter of degree. Mozee, 723 P.2d at 126; People v....